DENNIS DAVIS

I knew Harold Wolpe well. We might have disagreed but his work had a profound effect on me. An article he wrote in 1972 changed my entire perspective.

It is hugely unlikely that we could sustain the populist discourse of a This Day columnist which aims to subvert the attempt at a non-racial discourse. I do not believe that non South Africans should not enter the debate on our Constitution because some of them have put forward views that are against our non-racial Constitution. I wanted to talk about African values and the African Renaissance in this paper which I have delivered before at the Wiser Institute. To what extent can our Constitution sustain itself in a non-racial society? It is not a liberal constitution. Constitutions are contested documents. They cannot be understood by analysing them with a dictionary. The right wing understands this very well – it understands that you can pack a court with right wing judges and, by putting certain ideological positions in the court, the Constitution will then take a particular turn.

Introduction

Jean and John Comaroff, two distinguished social scientists, recently penned an article in which they called into question the nature of the constitutional enterprise launched a decade ago^.[1] The essence of the Comaroff argument runs as follows: South Africa, recently freed from the ethnically-coded rule of a racist colonial state, developed a comprehensive liberal, enlightened notion of democratic pluralism contained in a constitutional text which constitutes the foundational document for governance of this country since democracy dawned in 1994.

According to the Comaroffs, this Constitution is unusually attentive to universal enfranchisement and human rights. Although it accommodates cultural claims of minorities, it is deeply committed to the rule of law, the monopoly of state power over other forms of violence, and to a conception of citizenship that both transcends and tolerates diversity.^[2] While they concede that that the Constitution has ‘set about confronting the realities of difference in precisely the manner that many philosophers of’ minority rights multi-culturalism have proposed’, for these authors the founding premise is that of liberal modernist state. The Constitution and its political ambition having been so defined, the Comaroffs develop the following riposte to this text:

In post colonies, which are endemically heterogeneous, citizenship always exists in an immanent tension with policulturalism; … As a result, it is a terrain on which increasingly irreconcilable fractal forms of political being, embodied in self defined aggregates of persons, may seek to open up possibilities for themselves, possibilities in pursuit of their passions, principles, ideals and interests. Indeed it is on this terrain that the modernist sense of ideology gives way to ID-ology, the quest for a collective group and sometimes goods, sanctioned by and in the name of a shared identity.

And in the process both the liberal modernist polity and the kingdom of custom are transformed.^[3]

Viewed in this context, customary authority has the potential to assail the hegemony of the liberal modern state and hence seek an alternative order of law and justice together with the use of force, of responsibilities and entitlements. For this reason, the citizen envisaged in the Constitution is a rights-bearing individual, in contrast to the subjects of ethno-politics with its emphasis upon traditional leadership and collective being. The Comaroffs contend that the individual citizen will be contrasted against the holder of collective rights, liberal discourse against and against rights to own culture, citizens against subjects. Hence, the South Africa which is prefigured in the Constitution will have a limited ability to make actual entitlements from textual guarantees and a restricted capacity of a constitutional discourse to frame an ideology to counter the centrifugal claims of diversity. The tension between citizenship and policulturalism cannot be reconciled and hence the politics of culture at the local level burgeon to threaten the attainment of the constitutionally prefigured society.

Briefly summarised, my argument is the following:

All constitutions are contested texts. The South African Constitution admits of a number of possible interpretations, one of which – my own – argues in favour of a social democratic form of society. This society does not constitute the reproduction of a Euro-nation which pits collectivity against the individual citizen. By contrast, it appears to me that an essential plank of the Comaroff argument is the construction a binary opposition between a liberal text and the power of the kingdom of custom. Admittedly the argument has the merit that it introduces the concept of culture and pluralism into the discourse, but once the constitutional possibility held up by the text is not simply about the construction of a liberal modernist state which fetishes the individual citizen, the oppositions developed by the Camoroffs are seriously called into question.

My reading of the Constitution

All Constitutions are a product of politics. In short, the text does not emerge into reality in a neatly creased and folded fashion immune from prevailing discourses, political struggles and predominant legal culture within a society. For this reason there are many plausible readings of a constitutional text and not one of them has inevitably to trump the other. My particular reading of the Constitution concerns the construction of asocial democracy in South Africa. In essence, this argument is sourced in the following seven provisions of the text:

·       Section 9 of the Constitution^[4] supports the conception of substantive equality in which the material conditions of citizen must be interrogated in the promotion of equality guarantee. In addition, Section 9(3) contains a powerful anti-discrimination clause, which protects citizens not only against discrimination on the grounds of race and gender, but also on the grounds of sexual orientation, age, belief, opinion and, arguably, class.

·       Section 8 of the Constitution provides for the horizontal application of the Bill of Rights. In short, a horizontal application of the Bill of Rights means that all power, whether sourced in the state or private organisations, is subject to interrogation in terms of the provisions of the Bill of Rights whenever this power is exercised in the public domain.

·       Section 23 protects a range of labour rights, including the right to strike and the right to organise collectively and to form trade unions.

·       The Constitution contains a range of socio economic rights, particularly in terms of Section 26, the right to housing, and Section 27, the right to health. However interpreted, these clauses impose an obligation upon the state to ensure that no socio economic programme can be introduced without taking account of the priorities of the poorest of the poor within society.

·       Section 31 of the Constitution contains a guarantee of cultural rights and seeks to ensure that cultural identity is protected.

·       The foundational values of the text represent an amalgam of equality, dignity and freedom. Taken together, these values are different from the meaning of the parts. For example, it is not possible to contend for a negative conception of freedom made famous by Isaiah Berlin.^[5] If the values of equality, dignity and freedom are taken together in order to construct a meaning of the foundation upon which the text is based, an egalitarian vision of South African society emerges where freedom without recognition of equality, dignity and conversely equality which crowds out freedom and individual dignity cannot be sustained.

·       Section 36 of the Constitution contains a limitation clause. This ensures that none of the rights in the Constitution invariably must trump the policy of the democratically-elected government. However, if any policy limits a constitutionally-entrenched right, the government has to show adequate justification for the limitation. By ensuring that a culture of justification rather than juristocracy prevails in a constitution, a balance between constitutionalism and majoritarian democracy is achieved. In other words, the Constitution requires of judges that they examine the justification for policy rather than seek to impose their own policies which would tilt the balance of power in favour of government by judiciary; an outcome which erodes democratic rule and, invariably, the legitimacy of the constitutional enterprise.

Concessions

Before engaging in a critique of the Comaroff position, it is important to make some concessions. In any constitution, foreign law plays a role. No constitutional text written in the post-Second World War period can ignore the vast network of human rights instruments which have emerged since 1945. There is, however, the danger of adherence to a functionalist conception of constitutionalism which tends towards the reproduction of a universal, liberal form of human rights discourse. For example In a recent work, Dorssen et al^.[6] claim in the introduction:

Without regard to whether problems and solutions are essentially similar across different constitutional systems, one can maintain that there is a significant degree of congruence between problems and their possible solutions across the spectrum of contemporary constitutional democracy.^[7]

The authors go on to say that there is a ‘workable overlap’ between constitutional democracy so that ‘in the area of basic rights’, a widespread overlap – if an underlying universalism – (is) at the core’.^[8] This approach lends support to an argument which locates the debate within the framework of binary opposites, being a universal liberal constitutional discourse as against the ‘kingdom of custom’.

It is tempting to position human rights and constitutionalism within this paradigm because of the relationship between international human rights and globalisation. But the increasing convergence of economic activity and the concomitant construction of an international financial network does not inevitably mean that all municipal human rights law takes on is to adopt a rather simplistic perspective of the modern global era. Globalisation should not be viewed as a homogeneous phenomenon. Globalisation does not simply represent the erosion of the nation-state and its replacement by a super-national cabal of multinational companies which rule is cemented by a universal human rights discourse. On the contrary, the nation-state is a very transmission belt for global capital; hence the nation-state itself is a site of significant struggle about its role in this global world. To the extent that the Comaroff argument draws attention about the growing relevance of ethnically-based arguments about rights and entitlements, they throw light on the very point. Each nation-state confronts its own social, cultural and material conditions which, in turn, impact upon the very shape of the nation-state as it responds to the pressures of the global world. National politics cannot be written off as irrelevant. It follows thus that the shape of a national constitutional text and the manner in which rights themselves reproduce particular social formation can well have a significant effect upon the nature of politics in the particular nation state. If these propositions hold, then any attempt to frame all constitutional debate as a battle between a politically unmediated liberal enterprise and local cultural struggle will represent arcane generalised theory and a simultaneous failure to view constitutionalism as a form of politics by particular means.

The critique

On this basis I would argue that the presentation of fatal conflict between liberal constitutional rights and culture as represented by the Comaroffs is a form of binary functionalism which is stuck in the divide between liberal universalism and cultural relativism, between individual rights and rights of groups.

Liberalism itself is presented in a very crude form in this argument. Take, for example, the work of Kymlicka who notes:

For some people, the fundamental liberal value is tolerance including tolerance of non-liberal groups (so long as they allow a right of exit). For others the basic liberal value is an autonomy and so a liberal state should ensure that all citizens have the liberty and resources needed to make informed decisions about the good life, including the right to question and revise traditional cultural practices.^[9]

If we are to argue about liberalism, then it may be clever debating but hardly intellectually rigorous, to reduce all liberalism to the single pursuit of individual autonomy. There is a liberal position which considers that tolerance is a foundational value. However, within liberal thought, it is possible to contend that ultimate values that have objective worth values might be located in a liberal lexicon, and yet promote a wide variety of conceptions of the good, moral life. On this basis, it is possible to contend that different conceptions of the good life be granted equal respect and understanding.^[10]

It is not, however, necessary for the purposes of my argument to defend liberalism, save to highlight its sloppy use. As I have already contended, the South African Constitution holds out the promise of the social democracy, not one which has a particular claim to universal validity, but rather an attempt to construct a society which is the Other to apartheid. Manifestly, the South African Constitution is rooted in a particular history. Hence every concept in the South African legal system needs to be held up to critique, including prevailing conceptions of customary law which reproduces a conception of culture which should not uncritically accepted as constituting an historical societal framework. As Bronstein argues, the conflict between African customary law and Western values:

is an inter-cultural conflict. When a woman comes to court to argue about her status she does not dislodge herself from her culture. She does not transcend the culture and find herself in the realm of Western values. Her identity is not suddenly transformed. Rather, an internal cultural dispute is brought to an alternative tribunal in order to be heard. The flight is no longer between culture and equality. Rather it is between two different interests groups battling to retain/ change power relations within their very culture – a culture which is constantly evolving.^[11]

Bronstein concludes thus: ‘African institutions, like their Western counterparts, can be progressively transformed in accordance with the principle of equality’.^[12]

This line of argument poses important challenges for courts to show respect and understanding for African values without violating the key principles of equality and dignity. They do this by selecting understandings and interpretations of African values which infuse the constitutional text and over interpretations which are more conducive to the kind of liberal argument put up by the Comaroffs and which admittedly have been dominant in the jurisprudence of a judiciary which is remains, in the main, hostile to intellectual reconstruction. What is therefore needed is a jurisprudence of a non-absolutist kind that contemplates a plurality of entities each claiming constitutional power, a jurisprudence that helps to form a new inter-cultural conception of South African sovereignty.^[13]

Conclusion

The great danger with the Comaroffs’ argument is that it affords justification for those who would sweep away the constitutional framework which was initiated in 1994 on the grounds that it is of Euro-centric origin and continues to imprison the country in a post-colonial time warp. This argument denies the possibility of this constitutional text being interpreted and developed to move South African society in the direction of an egalitarian vision. Instead of seeing rights as a contested concept subject to political struggle, all rights are swept away by the compelling force of a African volksgeist which in essence is no more in some form of reconstructed African popularism which represents the very antithesis of a society based on social justice powered by a substantive concept of equality, a common humanity, tolerance and the ability to transform, in this context, existing legal concepts to accommodate a variety of difference. This is not to argue that a careful investigation of the history of the sources of African community which preceded colonial rule is not a vital source of enquiry with which to infuse the values that inform the constitutional text. On the contrary, this a vital component of legal transformation from a colonial paradigm to a legal system which promotes the kind of society prefigured in the Constitution. By contrast, the populist attack seeks to reduce, if not deny, the possibility of a constitutional discourse that promotes a common humanity and a citizenship which is not hollowed out by a reconstructed Other. Transformation concerns the reconstruction of that which exists, not its replacement by an imagined system which reduces the role of the foundational values of the text.

It is important to state expressly what is being denied and claimed. It is imperative that we do not develop a constitutional jurisprudence wrenched from the history and geography of this country .It would be no more then an intellectual retreat into our past were we to fetishise the authority of North American or European constitutional authority as we develop our own constitutional law. But it is equally unfortunate were it to be denied that legal concepts that presently exist can be given fresh South African content in order to justify an argument that dreams of some non-existent African past upon which all that presently exists should be jettisoned.^[14] African law and culture has a key place in the development of law if we are to move towards a society founded upon ubuntu rather than the atomised individual. In this connection, my argument is that each concept of existing law must be interrogated through the prism of the Constitution. In turn, the foundational values of the Constitution, being freedom, dignity and equality, must be given a specific content based upon the history of this country and, in particular, those traditions that were silenced during 300 years of colonial rule. It is true, as the Comaroffs claim, that no government can afford to ignore the passions that inflame forms of collective action.^[15] But, as contended above, the constitutional text does not prevent this form of response. What it does is to insist that citizenship is built on a basis of a common humanity in which any of the prohibited grounds set out in Section 9(3) should no longer be bar to the exercise thereof. That certain forms of tradition will need to be developed is obviously a major challenge, but this itself is part of the broader dilemma of constructing a new country.

Much of the Comaroff article is bolstered by one case – that of Mrs Tumane and her refusal to perform a burial rite. By contrast there is some firmer evidence from the first decade of constitutional democracy. James Gibson in a recent work presents the results of a comprehensive study which indicates some 60% respondents believe that the Constitutional Court can be trusted. By contrast some 66% believe that Parliament can be trusted. Admittedly only 27.1% of the sample disagreed with the statement that if the Constitutional Court started making a number of decisions with which the sample disagreed it would be better to do away with the court as opposed to 17.9% in the case of Parliament.^[16] The point is that the argument of an inevitable clash is not supported by the kind of evidence which compels acceptance of the argument that the Constitution will be overwhelmed by the kingdom of custom.

By contrast, this argument does allow others to justify the kind of rhetoric relief about a mythical African past wrenched from any concrete historical context or political present and developed to shore up a position which justifies the kind of economic policy that ensures economic empowerment for a few and precious little for the balance of the majority of previously and presently disadvantaged citizens. Small wonder that, in his Steve Biko memorial lecture, Nelson Mandela warned that:

the values of human solidarity that once drove our quest for a humane society seem to have been replaced by a crass materialism and pursuit of social goals of instant gratification.^[17]

The model of society prefigured in the Constitution seeks something different, being an indigenous development of a legal system which supports a society based on freedom, equality, dignity, multi-culturalism, accountable democracy and a citizenship that moulds local culture with common humanity. That society cannot be automatically guaranteed by a Constitution. The outcome is a product of politics, but a politics that, in part, depends on the way that the Constitution is interpreted. That is why this debate is important for the law can well reinforce the direction of politics in favour of the attainment of this vision.

 

DISCUSSION

Is the Constitution an empty vessel?

·       Would it be fair to say you are suggesting that the content of the Constitution is not determinate? This lends itself to an interpretation in which the Constitution is content-free and content is supplied by the discourse that the Constitution invites; that it is an empty vessel that you could opportunistically fill; that the only substantive thing in the Constitution is that it invites debate.

Dennis Davis: I said my reading is sustained by the text. You can’t simply make it up, but this does not mean that only one meaning can be admitted. I think there are contests of interpretation, otherwise there would be no minority judgments. It is not an ordinary statute. There are a range of interpretations, but this does not mean that anything goes – interpretation must be justified. There might be other views.

Enforcing socio-economic rights

·       Do ordinary people have equal access to the courts to enforce their socio-economic rights?

·       Judge Dennis opposed socio-economic rights and now he is the one taking it to the government [in the Grootboom judgment].

·       The Human Rights Commission has said we have done well in political rights but not in socio-economic rights. In the townships the Constitution is a tourist Constitution. Three years after the Grootboom decision is the Constitutional Court backtracking?

Dennis Davis: On whether people can enforce their rights, ask the 250 squatters who pitched up in my court [in the Grootboom case], or the people who approached the Constitutional Court [for treatment against mother to child transmission of HIV]. The level of constitutional education is abysmal, and it is not helped by the drivel published in the newspapers. How arrogant white people with university educations are to think that people do not understand the Constitution – there is enormous political literacy in this country. I don’t think the Constitution is imprisoned by a particular group, but it is difficult for people to bring cases to court to enforce their rights. In 1992 I did not think that socio-economic rights should be in the Constitution. In the Grootboom case, Peter Hodes walked into my courtroom waving a copy of the South African Journal on Human Rights in which I made that argument. I was wrong. It is difficult to ensure socio-economic judgments are implemented. I have been seen as an activist judge, but there is a real limit to the way judges may interfere with public policy. The problem is not in the field of making judgments, but the inability of the courts to impose structural interdicts. In the Grootboom judgment I said the authorities had provide housing, beginning with the poorest of the poor, but as a judge I had no idea whether an individual needed a shack or a tarpaulin or some sewerage. The court could have imposed a period in which a plan had to be developed to give content to those rights. The applicants could then have come back to court and the court could have supervised the implementation of the plan. The Constitutional Court has done much better in this field than other courts, but there is a still a problem with structural interdicts. The judiciary has to strike a difficult balance between making judgments with policy implications and deferring to government in the policy arena. But once you introduce socio-economic rights, the courts cannot not go there. The Supreme Court of Appeal decided that you cannot lock up bureaucrats for contempt of court, so administrators are ignoring court orders with impunity. Judge Fronemann has said he is not obliged to follow this judgment because it is wrong.

The loyalty of judges to the Constitution

·       Two sitting judges have said they are in favour of capital punishment and they have been reported to the Judicial Services Commission for breaking their oath to defend the constitutional order. The Constitutional Court abolished capital punishment, and the judiciary is obliged to uphold it.

A good Constitution or not?

·       On the subject of representivity, who proposed women’s rights to choose [abortion], freedom of sexual orientation, a political system that is not first past the post, the Constitutional Court, and socio-economic rights? We failed on the issue of capital punishment. It took 35 years in Ireland for people to say ‘this is our Constitution’. The Constitution is owned by South Africans; it is a social democratic document. Don’t be obsessed by these two writers [the Comaroffs]. Society makes claims in the Constitution. We now have lesbian judges, and a policewoman’s partner may claim [a married person’s] pension benefits. I don’t have the grim foreboding that things will go wrong because of customary law. There have been US Supreme Court rulings that a black man was only three-fifths of a man for voting purposes, that women could not become attorneys, and Ireland does not have to learn about detention without trial. We can learn from Irish and Indian Supreme Court jurisprudence. This Constitution is firmly positioned in the South African reality.

·       Our Constitution is regarded as the best in the world, but the reality of it is that the poor do not enjoy their rights. In the Grootboom case the poorest of the poor became entitled to housing. But Irene Grootboom is still living in a shack years later. The South African Local Government Association once said that within two years there will not be any shacks. But people in Khayelitsha have been living in shacks for ten years. In one CCMA [Commission for Conciliation, Mediation and Arbitration] case over an unfair dismissal, the person was awarded R7 000 but he still does not have his money.

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[1] Jean & John Comaroff. 2004. Reflections on liberalism, policulturacism and ID-ology: Citizenship and difference in South Africa. Unpublished paper.
[2] See page 2.
[3] At 5.
[4] Republic of South Africa Constitution Act 108 of 1996.
[5] Isaiah Berlin. 1969. Two concepts of liberty, in Four essays on liberty:118–72.
[6] Comparative constitutionalism (2003).
[7] At 8.
[8] At 3.
[9] W Kymlicka. 1995. The rights of minority cultures:15.
[10] This section of my argument has been derived in considerable part from Kristina Bentley: Are the powers of traditional leaders compatible with women’s equal rights? Three conceptual arguments (yes, no and maybe). 2004 Human Rights Review – in press; particularly at 8–9. It may well be that even Rawlsian liberalism (see A theory of justice (1971)) cannot be saved without some recognition that we cannot define personal identity independently from socially-given ends and that an individual cannot be separated from community. See for example Amy Gutmann’s ‘Communitarian critics of liberalism’ in Avineri and De-Shilit, Communitarianism (1992). However, for the purposes of my argument, there is sufficient philosophical justification within the broad liberal tradition to call into question key assumptions upon which the Comaroff article is predicated.
[11] Vicki Bronstein (1998) Reconceptualizing the customary debate in South Africa, South African Journal on Human Rights, 14:388at 403.
[12] At 410.
[13] See Patrick Macklem (2002) Indigenous difference and the Constitution of Canada. Macklem contends that indigenous difference turns on four distinct interconnected facts that inform constitutional rights, being aboriginal rights or culture, aboriginal title to territory, aboriginal sovereignty, and form and substance of treaty rights. He further contends that it is possible to develop a constitutional theory for these rights and the interests they protect in a fair manner. Critical to this enterprise is the interrogation of the principle of equality and the reconstruction of traditional equality jurisprudence.
[14] It is difficult to be more specific about this form of legal argument because its populist roots never appear to allow much attention to specifics. The prime example of this kind of argument is to be found in a series of articles by Shadrack Gutto in This Day.
[15] At 9.
[16] James Gibson. 2004. Overcoming apartheid.
[17] This Day, 14 September 2004.