Chief Justice Mogoeng Mogoeng is this evening expected to deliver a public lecture on “Transformative Constitutionalism” at the University of the Free State in Bloemfontein.
The discussion which will also be streamed live from 6pm is being facilitated by the university’s Faculty of Law.
Although not easy to define, “Transformative Constitutionalism” can be described as a commitment to substantive equality and improving socio-economic conditions.
Former Chief Justice Pius Langa once said: “There is no single accepted and stable definition for transformative constitutionalism because the word transformation by itself has changeable features’.
However, other scholars have defined Transformative Constitutionalism as a constitutional law which has a purpose of overcoming past discrimination and the disadvantage suffered by groups of people on the basis of race, sex, colour and others.
While measures continue to be implemented towards achieving Transformative Constitutionalism in the country, some critics have not been supportive of such efforts.
Eric Kibet, a senior lecturer at Moi University, Kenya and Charles Fombad, a Professor of Law and Head, Constitutional Law Unit, Institute for International and Comparative Law in Africa, University of Pretoria, wrote in the African Human Rights Law Journal that Transformative Constitutionalism could help turn South Africa into a more equitable society.
“Transformative Constitutionalism, popularised in the context of South Africa’s transition from apartheid to constitutional democracy, arguably offers an antidote for failed constitutionalism and weak protection of fundamental rights and freedoms in emergent democracies in Africa,” they suggested.
According to the duo, this is important because, in most parts of Africa the much-celebrated independence from colonialism largely fails.
“In place of freedom, democracy and prosperity that many colonised people had hoped independence would bring, Africa’s post-colonial era, especially in the early years of independence, was characterised by political instability, military coups and counter-coups, dictatorship, civil strife, corruption, massive violations of human rights and misery,” they added.
But Martin van Staden, the author of “The Constitution and the Rule of Law, 2019” claimed in an opinion piece he wrote for politicsweb.co.za that could compromise academic freedom.
In his critic on an investigation by the Council on Higher Education (CHE) on the state of the has completed its investigation into and report on the state of the Bachelor of Laws (LL.B.) degree at South African universities, Van Staden said promoting Transformative Constitutionalism could pose a challenge to the academic field.
The author says the report makes valid points throughout on matters such as a lack of teaching critical thinking skills, but is worried that Transformative Constitutionalism posed a potential threat to academic freedom.
“The CHE wants students and faculty at universities to “internalise” so-called “transformative constitutionalism” into their curricula, their teaching, and their “socialisation activities”, wrote Van Staden.
He continued: “This is because the transformative constitutionalism the CHE asserts is a “foundational principle in modern South African jurisprudence”… The report calls into question the extent to which there is racial demographic representivity among university faculty and students, in the name of “social sensitivity”… Clearly, the only real diversity that is non-arbitrary, that is, diversity of ideas, is rejected, in favour of ideological conformity to the notion of transformative constitutionalism, while the irrelevant diversity of race is placed front and centre.”
Mogoeng is expected to articulate the country’s constitution in terms of what it stands for and how important it is for people to understand it and ensure proper implementation.