Democratic constitutionalism in the time of the postcolony: beyond triumph and betrayal

Abstract

This paper situates the South African constitutional project in a wider temporal and ideological frame of reference as an anticolonial project and asks what the postcolonial critique of the constitutional project and the postcolonial state can offer to deepen our understanding of contemporary forms of cruelty and injustice in the form of inequality and misrecognition. It identifies the limits of ‘Constitutional legalism’ and is critical of the ‘triumphalist’ mode of appreciating the Constitution. Constitutional legalism postulates a text that contains a comprehensive conception of justice that awaits implementation and has settled all relevant questions arising from our colonial past. Instead, the Constitution should be conceived as an ‘incompletely theorised agreement’ which deferred many questions and which conceals many ongoing disagreements. But this paper also recognises the Constitution and its central propositions - human rights, the rule of law and popular self-government as genuine anticolonial achievements, which provide framework concepts and institutions for collective action and democratic politics. So the paper is also critical of the ‘culturalist’ critique that denounces the Constitution as a ‘betrayal’ that inscribes Eurocentric forms of reason as a permanent obstacle to the attainment of a genuinely postcolonial society. It proposes, as an alternative to both the ‘legalist’ defence and ‘culturalist’ critique that the idea of the ‘demos’ should be restored to its central place in the imaginary of South African constitutionalism. The Constitution can then be reconceived not as the perfect product of a singular moment in South African history but as an ongoing activity requiring dialogue, including inter-generational dialogue, and a democratic framework within which to strive for social change.