Constitutionalism and coloniality: A case of colonialism continued or the best of both worlds?

Abstract

This article deals with the concept of constitutionalism in relation to colonialism and modernity, with a specific emphasis upon South Africa and South African constitutional development. The Republic of South Africa transitioned from an authoritarian regime to a democratic regime in 1994 and adopted a constitution that is to contribute in the consolidation of its young democracy. However, amidst continued struggles within the South African polity and an emphasis upon de-colonisation, it is necessary to afford attention to aspects of South African constitutionalism. This article relates a discussion of constitutionalism with coloniality and modernity, and considers the nature of the South African Constitution and constitutionalism in this respect. Attention is afforded to unpacking these concepts and the consideration of alternatives, in order to transform or decolonize South African constitutionalism. In this regard reference is made to the nature of constitutionalism, the context of the South African Constitution and the discussion of three approaches to South African constitutionalism that might be helpful in addressing the contested nature thereof. These three approaches are: transformative constitutionalism, progressive constitutionalism and Ubuntu. The article concludes that no definitive or final solutions can be offered, except to suggest that the continued emphasis of these understandings of constitutionalism could perhaps contribute to the actualization and recognition of a deeper and fuller democratic constitutionalism for South Africa, that will also entail finding a balance between modernity and coloniality, because it is suggested that, in the end, there cannot be a complete divorce between these two worlds. Only in this way, it is suggested, can be moved to a South African constitutionalism that embraces the best of both worlds.