“Not Yet Uhuru” - The Usurpation of the Liberation Aspirations of South Africa’s Masses by a Commitment to Liberal Constitutional Democracy By Sanele Sibanda A thesis submitted to the School of Law, University of Witwatersrand, Johannesburg in fulfilment of the requirements for the degree of Doctor of Philosophy under the supervision of Professor Heinz Klug and Professor Stuart Woolman. 21 November 2018 Declaration I declare that this thesis is my own unaided work. It is submitted for the degree of Doctor of Philosophy, in the Faculty of Commerce, Law and Management at the University of the Witwatersrand, Johannesburg. It has not been submitted before for any other degree or examination at any other university. ___________________________________ Signature __________________________________ Student number 21 November 2018 ii Abstract At the heart of this study is the idea of constitutionalism; its promise, conception and deployment in South Africa’s post-apartheid constitutional discourse; and ultimately the need for its re-imagination if it is to be part of advancing a truly decolonising liberatory project. A core premise of this study is that there exists, in post-apartheid South Africa, a stark discursive disjuncture between what has emerged as a hegemonic liberal democratic constitutional discourse and the discourse of liberation that served as the ideological pivot of the anti- colonial struggles. Animated by this premise, this study asks why it is that liberation as a framing set of ideas has either played no part or exerted so little obvious influence on how post-apartheid South Africa self-comprehends and organises itself in constitutive terms? Recognising that the formal end of colonial-apartheid as a system in 1994 inaugurated a seismic shift in the country’s constitutional discourse as the notion of constitutionalism took centre stage, this study seeks to problematize this idea by examining its underlying assumptions, connotations and import as deployed in mainstream South African academic and public discourses. In doing this the study aspires to offer a novel perspective that shifts the fixity of the conceptualisation of constitutionalism by amplifying the point that how one chooses to conceptualise constitutionalism has profound implications for what one understands to be the function, scope, ambition and possibility of a constitution. Crucially, the study seeks to advance a historicised, yet non-ideological understanding of the emergence of modern constitutionalism. This, the study argues, is necessary if the real constitutive work and worth of constitutions of different types and thrusts is to remain open to critical engagement as well as fostering the possibility of constitutional imaginings of new, different forms of society or social ordering. As the study works towards responding to the core question it poses, it embarks upon a critical historiography of South African constitutionalism from the 1910 Union constitution to the present one. It does this in an attempt to demonstrate that some of the challenges faced by the current constitution are, profoundly influenced, if not directly produced, by legal, structural, cultural and economic continuities rooted in the past, with race being a central axis around which South African constitutionalism has been imagined, enacted, opposed and resisted. In so doing, the study seeks to demonstrate that despite the indisputable paradigmatic shift ushered in by the fall of colonial-apartheid, on current evidence that shift has been unable to displace nor disrupt iii the many continuities that remain stubbornly etched into the South Africa’s constitutive DNA inherited from earlier racially exclusive and exploitative constitutional expressions. Engaging South African constitutionalism from a critical historical perspective, the study turns its attention to the emergence and eventual ascendance of transformative constitutionalism as arguably the mainstream conception of contemporary South African constitutionalism. The study argues that transformative constitutionalism, whilst claiming radical far reaching means and ends, has established limited intellectual and programmatic horizons focused on litigation. From within this discourse, it is argued, there is little or no evidence of other work directed at inculcating institutional or structural power shifts or innovations beyond the courts and lawyering. Ultimately, the study argues that transformative constitutionalism is an inadequate framework through which we can begin reimagining South African constitutionalism and its attendant political, social and cultural dynamics in a more emancipatory and inclusive ways. Finally, in light of the discursive disjuncture identified earlier, the study concludes by turning its attention to the notion of liberation. It does this in an attempt to reveal liberation thought’s constitutive potentialities through its political, social, economic, and cultural dimensions that exist as the epistemic underpinnings of the visions of liberated societies and states as imagined and put forward by the like of Steve Biko, Amilcar Cabral and Frantz Fanon amongst others. Keywords Constitutionalism, transformation, liberation, critical historicism, imagination, emancipation, culture, transformative constitutionalism, liberal democracy iv Dedication I dedicate this work to: Leonora Nomampondo and Siwanda Kennedy Mbuso Sibanda, my parents without whose nurturing love, sacrifice and unending support none of this would have been possible. If I have managed to be only half of what you have meant to me then I will have been a worthy son! Sandiso ‘Lord Kozras’ Sibanda, my brother you may have long departed this earth but your spirit and love accompanies me always! Bethuel Setai, daddy, you were and always will be an inspiration, you remain sorely missed. v Acknowledgements The dissertation or the ‘D’ project has been a long time in its formulation and it seems even longer in its writing. There were times when it felt like it might never be completed, let alone hang together as a coherent and, hopefully, thought-provoking whole of which I am immensely proud. To achieve this I must at the outset express my deep and heartfelt gratitude to my supervisors Professors Heinz Klug and Stuart ‘Stu’ Woolman. First, Stu, I remain enormously grateful for recognizing and encouraging my project early on all those years ago at Constitution Hill. Then it was little more than a set of theoretically unmoored critical musings about South African constitutionalism at a time when it was near taboo to think let alone utter such thoughts. Thank you for the, ‘cawfees,’ the rich conversations, and ultimately the belief and freedom you gave me to explore my ideas on my own terms. I remain thankful for the many years of friendship and unwavering support, I often wonder where I would be without it. Second, Heinz, from your invitation to me to spend time in Madison working on the ‘D’ to your coming on board as a co-supervisor later in my project, your immense generosity with your time, experience and wisdom has characterized our interactions. Your belief, encouragement and guidance, particularly in the final stages of writing have been invaluable, enriching and overall inspiring. Words cannot quite convey my appreciation for your coming on board formally when you did as days looked dark! A project that from conception through gestation to birth that takes shape over many years and gets executed across 3 continents accumulates a lot of debts of various kinds along the way; of course, equally one has the opportunity to make and grow enriching life-long connections and friendships. The scale and ambition of my project was such that the thinking work that it necessitated could not have been done without the help of some of the most generous, brilliant and critical of interlocutors, sparring partners and sounding boards along the way. In this respect I take time to thank some of them. My most faithful, long standing sparring partner, my brother Tshepo Madlingozi, we have been through a lot together and on this journey you were ever true, too too many things to mention. I have learnt so much from you over the years, you are an inspiration and your brother’s keeper! Bhuti wam’, Chaka Uzondu, from a distance you kept me focused as you listened, read and critiqued carefully; most crucially our talks helped me to crystallise many a messy or vi inchoate thought. My sister Bernadette Atuahene aka the ‘queen of bonanza’, the Chicago trips, the hard work before the salsa parties, the conversations and the insights you shared kept me going even when I doubted myself. Cynthia Farid, I really don’t think you know exactly how much our conversations, the sharing of ideas and struggling through the writing together influenced my approach to my D. Gay Seidman, you kept me intellectually stimulated, as well as emotionally and physically nourished; your generosity, kindness and the incredible conversations over dinners at yours and Heinz’s meant so much to me, I can never say thank you enough. Sue Stanton, my dear friend and writing partner, the coffee and toil at Barriques has finally paid off, you and Cady helped me to feel connected to family and grounded in Madison. Jonathan Klaaren, I do not take your support, encouragement and engagement over the years for granted, your generous and insightful comments were so timely. Charmika Samaradiwakera-Wijesundara, your friendship, courage as thinker and belief in my project have propped me up in ways you cannot imagine, you’ve been my ultimate ‘wingman’ on much of this journey. Joel Modiri, somehow it feels like you were always there (even when you weren’t), thinking, debating, probing, offering new insights and readings; your generosity of spirit is only matched by your brilliance as a thinker. Sabelo Sibanda, my sage of a brother, I think if I am honest none of this would have come to me had you not taken me deep into Pan-Afrikan ideas and taught me think critically about the debilitating work of cultural domination and its corollary of cultural sovereignty all those years ago. Silindiwe Sibanda, my sister and outstanding editor, you were literally my rock when the editing looked set to drive me over the edge.