On 27 February 2018, an overwhelming majority of members of South Africa’s National Assembly adopted a motion to begin the process of amending the ‘property clause’ in the constitution. Given the befuddled nature of the present clause, the proposed amendment seeks to clarify and simplify the powers of a hitherto pro-market and thus lackadaisical state to “expropriate land without compensation”. One impetus of this historic event is a November 2017 Department of Rural Development and Land Reform’s Land Audit Report 2017. This Audit, unsurprisingly, concluded that white people continue to own the lion’s share of the land: on the one end of the spectrum, white South Africans (8% of the population) lord it over 72% of farms and agricultural holdings while on the other end of the spectrum, “Black Africans” (80% of the population) own a measly 4%. These figures are an indication that the settler(dispossessor)-native(dispossessed) colonialist relation remain viscerally real in South Africa. It is no wonder then that the Economic Freedom Fighters (the EFF), the original sponsors of this motion, intimated that this motion seeks to deal decisively with historical injustices emanating from settler invasion, land dispossession, political conquest, racial proletarianisation of indigenous populations, and persisting lived experiences of racial dehumanisation. This analysis considers whether this proposed constitutional amendment heralds the beginning of a process of finishing the unfinished business of decolonisation.
I adopt a decolonisation critique to advance the thesis that although this potential amendment might be indispensable to fast-tracking processes of land restitution and land redistribution, a thoroughgoing and holistic project of decolonisation cannot be achieved within the framework of the current constitution. Rather, what is needed is an all-inclusive process of constitution-making aimed at replacing the current Constitution with a ‘post-conquest constitution’. Such a process would need to understand that land dispossession was but one consequence of political conquest and processes of colonisation. I argue that a Post-Conquest Constitution would lay a framework for dealing with the unfinished business of decolonisation. Such a constitution would be a decolonising instrument to the extent that it addresses what, from a constitutional perspective, I regard as the three main legacies of settler colonialism, namely: (i) the colonial state form, and conversely the eternal subjugation of indigenous sovereignties; (ii) the entrenchment of a world of apartness and the deliberate failure to resolve the National Question; and (iii) the continuing subordination of African life-worlds and their epistemologies and jurisprudences.
I am, therefore, suggesting that any analysis of this historical motion ought to have as its point of departure the fact that South Africa is a historically settler-colonial society. The premise of this analysis is that this historical uniqueness and socio-political specificity call for a different set of constitutional enquiries and remedies to the ones posed and rehashed when dealing with colonialism, authoritarianism and/or low-intensity democracy. The failure to appreciate, or rather a tendency to elide, this specificity has resulted in mimetic constitutional theories and approaches (based as they are on theories and approaches emanating from the Global North) that at best fail to provide solutions to the bequests of settler colonialism or at worst entrench them. A decolonisation critique to constitutionalism draws from settler colonial studies, decolonial theories, and most importantly, the living archive comprised of critiques and approaches advanced both during the eras of formal colonialism and today by African scholars and activists. Based on these resources, decolonisation approaches endeavor to demonstrate that most processes of constitution-making and constitutional reforms actually facilitate the onset of neo-settler colonialism in the sense of perpetuating the institutional, socio-economic and cultural arrangements that were produced during settler colonisation.
Transformative constitutionalism versus Post-Conquest Constitution
The first battle between Europeans and indigenous people in the territory that later became South Africa took place in February 1510. This conflict ended in the death of Francisco de Almeida, the first Viceroy to Portuguese India, and sixty-three other Portuguese soldiers and sailors. 1652 marks the beginning of uneven processes of conquests. In 1657, the Dutch government ratified a policy of permanent settlement and land dispossession. From 1779 to 1878, settler-invaders unleashed Wars of Dispossession that resulted in land dispossession, the irruption of western modernity, and most importantly, the severance of the cosmic harmony between the land, non-human beings and the onto-triadic community constituted by the living, the living-dead/continuing persons and the yet-to-be-born. More than just land dispossession, the main consequences of this hundred year period of settler aggression were, therefore, the destruction of the socio-cultural worlds of indigenous people and the dismemberment of African being-becoming. Conquerors subjugated the last independent African kingdom in 1879. The Constitution of 1910 created the Union of South Africa as a “white man’s polity,” thus consolidating the non-belongingness of indigenous people. In 1913, the colonial government enacted the Natives Land Act. In terms of this pivotal Act, “natives” could only purchase land in Scheduled Areas. These Areas, mostly ‘communal areas’/‘black reserves,’ comprised 13% of the territory of South Africa.
The advent of Apartheid in 1948 was only a latest iteration of colonialism, a latest twist in the saga of intra-settler rivalry and an attempt to find a lasting solution to the “Native Problem”. The 1961 constitution created the Republic of South Africa as an independent settler colony that could freely lord it over “the natives”. From the standpoints of conquered people, the emergence and the various transformations of the South African state were, therefore, concretisation of conquest. From this perspective, the 1961 Constitution did not herald the era of decolonisation. Rather, the 1961 constitution should be understood as part of a settler preservation strategy known as ‘evolutionary constitutionalism’. The ultimate telos of this strategy is to transmute settler domination into settler hegemony and in that way secure the Gramscian consent of historically conquered people. An evolutionary scheme of constitutional re-arrangement lays a framework for the gradual integration (at least in theory) of historically conquered peoples into the extant polity. It is precisely for this reason that some observers come to regard such constitutional re-arrangements as ‘transformative’ and/or revolutionary.
Such assimilative maneuvers are, however, counter-revolutionary. They ensure that the settler-constituted world is transformed while its main edifice subsists. This is to say that the settler-constituted world – a world in which some have full sense of belonging while the majority Others are rendered invisible pariahs – is reformed but persist. As with any assimilative schemes, the aim of such constitutional re-arrangements is, therefore, to re-center the historically colonising group while masking this on-going hegemony through the integration of an elite stratum of the historically colonised group. It follows that such integrationist constitution-making processes are anti-decolonising and counter-revolutionary because indigenous sovereignties, autochthonous legal orders, cultures, and generally “non-western” ways-of-being-in-the-world continue to the subjugated and rendered invisible. These outcomes can be seen in most historically settler colonial countries such as Australia, the USA, and many Latin American countries. In these countries, supposedly radical constitutional re-arrangements have preserved the socio-economic and cultural hegemony of descents of settler-invaders.
Let us return to South Africa. As it is well known, the transition to democracy was via a negotiated settlement. The 1994 elections ushered in a new constitutional dispensation that transformed the South African socio-political landscape. The most important change was a supreme constitution that makes provision for civil and political rights as well as a large bouquet of justiciable socio-economic rights. It is on this basis that some scholars have hailed the South African case as that of ‘constitutional revolution’. However, assessed from the perspective of a decolonisation critique, 1994 signals the defeat of revolutionary constitution-making paradigms (mostly associated with African nationalists and Black Consciousness activists) by an evolutionary one: evolution from four rival settler colonies to a Union of South Africa (1910) to the Republic of South Africa (1961) to a 1983 constitution that made provision for “Indian” and “Coloured” representations to the integrationist 1993 Interim Constitution to the 1996 “transformative constitution”.
What does this have to do with the ferocious debates around the proposed amendment to section 25 of the current constitution? The point here is that opponents of the proposed amendment regard the 1996
constitution as the apex of the struggle against colonial-Apartheid. Their deification of this constitution can be seen in their implicit and explicit lauding of this constitution as ‘the best in the world’. It is this sacrosanct view of the constitution that informs these detractors ‘radical’ reading of section 25. This reading insists that section 25 is clear and flawless: it permits the state to depart from paying the market price for land identified for land restitution or land redistribution. While these analysts admit that South Africa’s land restitution and agrarian reform processes have failed, they lay the blame at the door of government citing corruption, incompetence and general institutional lethargy. For these analysts, the constitution has laid down an unimpeachable framework to address the legacy of colonialism and Apartheid.
Detractors of this proposed reform processes should be located on the evolutionary side of constitution-making. Thus, a characteristic South African constitutional analysis, both liberal and leftist, take it as a given that South Africa’s problem and history of conquest and colonisation have been resolved. The hegemonic constitutional project is then how to integrate the “formerly” oppressed and excluded into the “new” South African society through universal enfranchisement, extension of human rights, equitable distribution of (mainly) state goods, and de-racialisation of the spheres of civil society and the economy. The hegemonic consensus is that all of these can be, are being achieved, through South Africa’s peculiar brand of what Karl Klare termed “transformative constitutionalism”.
Analysed from a decolonisation perspective, the current constitution is, however, not a decolonising one. A decolonising constitution is bifocal in the sense of being both backward-looking and forward looking. It looks back and clearly names the past it denounces and endeavours to break from. It is forward-looking by laying a framework for a post-segregationist and all-inclusive future in which all citizens would attain a sense of affective and material belongingness. First, the earliest clue that the drafters of the South African constitution do not pretend to pursue a decolonising agenda can be seen in the fact the word “Apartheid,” let alone “colonialism,” does not appear in the entire text of the constitution. It is thus not clear what past this constitution seeks to constitute a rupture from. Unlike the constitutions of countries such as Guinea-Bissau, Zimbabwe, Namibia, Venezuela, Bolivia, Ecuador and Haiti, the South African constitution mask the history of settler-invasion, conquest and anti-colonial resistance under the euphemism of “past conflicts”. Second, the 1996 constitution cannot be regarded as revolutionary because it did not create a new state. Rather, government succession took place leaving intact the settler-created state form. In this regard, it is important to remember that the conditions of possibility for the establishment of the colonial state were land dispossession and the subjugation of indigenous sovereignties. In terms of the current constitution, indigenous sovereignties remain subjugated to the inherited colonial state form. A constitution is only decolonising to the extent that it undoes the colonial state form and reinstate the sovereignties of subjugated indigenous kingdoms. In this way a post-conquest state can come into being. For comparison, see the 2009 anti-colonial and decolonising constitution of the Plurinational State of Bolivia. This constitution seeks to “construct a new state” by granting legitimacy and autonomy to indigenous legal orders.
Third, the concept and the living philosophy of Ubuntu/Botho (African Humanness) is missing from the South African constitution. Again, South Africa’s constitution can be compared with those of Bolivia and Ecuador. The latter constitutions seek to valorise indigenous cosmologies in the form of Pacha-Mama (Mother Earth) and sumak kawsay (Good Living). The enduring marginalisation of Ubuntu/Botho and African jurisprudences is symptomatic of the fact that African lifeways, their epistemologies and systems of social ordering (misnamed ‘customary law’) are still deemed inferior in the “new South Africa”. A constitution cannot be regarded as decolonising if it is not does reflect the living philosophy and mores of the majority of its citizens; if instead of being a ‘mirror of society,’ it continues to be experienced by most of its subjects as a petrifying and alienating deity. Most pertinently, rather than valorising the lived reality of inter-legality and inter-culturalism, the South African constitution offers the human rights discourse as the only grammar of dignity. The crucial point here is that the marginalisation of “non-western” grammars of dignity and cosmologies often means that land restitution claimants often experience epistemic, cultural and spiritual violence during processes that are supposed to redress and re-member them.
Finally, being a creature of post-1989 global processes of constitutional borrowing/mimicry and negotiated settlement, the constitution does not put reparative and redistributive justices at the center of its agenda. Rather than Reparation-Redress-Restitution (the three indispensable R’s for addressing historical injustices), the constitution offers “access” to certain socio-economic rights “within available resources”. The jury is still out on whether these rights, together with their much-lauded jurisprudence, have led to material improvements in the lives of the majority of South Africans. To be sure, a 2015 report by the Statistician-General shows that a staggering 55,5% of South Africans live beyond the poverty line, while one in four people lived with chronic hunger. This report also highlights persisting racial inequality. This report indicates that in 2015, an average annual household income for a household headed by a white person was five times more than that of a household headed by a black person. Although the constitution allows horizontal application of its provisions, socio-economic rights are ultimately not homologous with the three R’s of decolonisation. As the above statistics show, socio-economic rights are ineffectual tools for realising the decolonising imperative of dislodging the socio-economic hegemony of beneficiaries of colonial-Apartheid and working towards radical redistribution of resources.
The Antinomy of black constitution traditions
Back to the issue of the proposed amendment to the constitution. Given the history I sketched out earlier, there is no doubt that land restitution and agrarian reform are key components of finishing the unfinished business of decolonisation. Where opponents of the proposed amendments are correct is in their assertion that that the ruling African National Congress (the ANC) has so far lacked the political will to implement a genuine programme of land return. A pertinent question is whether the ANC has finally decided to embrace a decolonisation agenda. For reasons that follow, I would like to argue that a decolonisation agenda is inimical to the constitutional tradition of the ANC.
It is of no small significance that the EFF dictated its motion to the memory of Robert Sobukwe, the first president of the Pan-Africanist Congress of Azania (the PAC), another breakaway party of the ANC. The now moribund PAC represents one side of the historical antinomy of black emancipatory thoughts in South Africa. Briefly put, the ideological differences between the ANC and the PAC had to do with their conception of the character of the South African state and thus the nature of the struggle. The ANC campaigned for the incorporation of Africans into the settler-created Union on the basis of Cecil Rhodes’s notion of, “equal rights to all civilised men”. These African elites were, at best, ambivalent about the exigency of restoring subjugated African sovereignties and their territories. The ANC, therefore, took the sovereignty of the state for granted. After a brief period in which the ANC, impelled by its young league, made a rhetorical case against ‘national oppression’ and for self-determination, the ANC’s returned to its traditional approach of self-determination-as-democratisation. This understanding found concrete expression in the ANC co-sponsored Freedom Charter of 1955. This Charter opens with the historically significant words: “South Africa belongs to all who live in it, black and white”. Following from this declaration, Charterists could only made a call for equitable sharing of the land. With this liberal Charter, the ANC made it clear that it upheld the legitimacy of the state, it had renounced land reclamation and that its emancipatory horizon was predicated on inclusion and democratisation.
In 1959, the Africanist faction of the ANC broke away to form the PAC. These Africanists argued that a multiracial union would perpetuate the myth of race, secure white hegemony and concretise the abandonment of the original objectives of the liberation struggle; namely, land reclamation and Africanist nation-building. These nationalists differentiated themselves from the ANC by declaring that for them the nature of the struggle is both nationalist and democratic in that, “it involves the restoration of land to its rightful owners – the Africans…At the same time, our struggle is for democracy, if we understand democracy to mean the implementation of the wishes of the majority of the inhabitants of the country” (Potlako Leballo). As is clear, the PAC’s point of departure was that the South African state was a colonial state in that Africans were oppressed as a “subject nation;” and not as a class as the ANC and its allies posited. The PAC’s national-building agenda proceeded from the twin notion that South Africa is not an independent state and that one nation (European) had conquered the other nation (African). More pertinently, whereas the ANC campaigned for a ‘transformative’ constitution that would lead to democratisation and integration of historically marginalised people (thus leading to a ‘new’ South Africa); the PAC set as the horizon of their struggle a post-conquest constitution that would lead to anti-racist, democratic, and socialist Africanist federal state (thus leading to a post-South African state in the form of Azania).
The ANC and the PAC’s divergent apprehensions of the nature of state continued right up to the triumph of the ANC, vis-à-vis the PAC, in the late 1970s. More specifically, from its years in exile up to the 1990s when it returned to the country, the ANC continued to accept the legitimacy of the South African state and its international legality and only protested the legitimacy of the white minority government. Although rhetorically the ANC accepted its communist allies’ characterisation of the South African situation as that of “Colonialism of a Special Type” or a situation of internal colonialism, neither for the communists nor for the ANC did that characterisation commit them to campaign for self- determination understood as full land reclamation and the restoration of subjugated indigenous sovereignties. The 1990s transitional negotiations, which the PAC boycotted, were over-determined by Euro-American constitutional praxis and a liberal discourse resulting in the reconstruction of the state into a Euro-modern state.
As can be seen, the ANC’s has always belonged to the evolutionary side of constitution-making. It is thus not that the ANC lacks political will when it comes to the issue of land restitution. The truth is that, in the historical antimony of black emancipatory thoughts and constitution traditions the ANC belongs to the evolutionary side of constitution-making. Given this history, it is doubtful whether the ANC is finally committed to implementing a radical programme of land restitution, let alone a holistic decolonising programme. To be sure, the president of the ruling party is one of the biggest beneficiaries of the neo-colonial scheme of integrating a handful of black South Africans into the still white-dominated economy.
What then of the EFF, the sponsors of this historic motion and a political party most closely associated with the decolonial turn in popular discourse? As I have indicated, the EFF presents this motion as part of its radical programme of decolonising society. However, I would like to argue that the EFF should also be located within the framework of evolutionary constitutional reform. Firstly, and most importantly, EFF leaders broke away from the ANC because they claimed that the ANC has diverted from the Freedom Charter. As we have seen, the Freedom Charter sets out a transformative contra decolonising agenda. Secondly, the EFF has portrayed itself as the party most committed to protecting and advancing the current constitution. As the EFF has a number of times articulated it, its approach to the constitution is not merely tactical. The constitution and the discourse of human rights are key strategic cogs in their radical agenda of transformation (thus: “we are conducting our revolution within the confines of the constitution”). However, as I have tried to demonstrate, a thoroughgoing programme of decolonisation cannot take place within the framework of the current constitution. I am not suggesting that the EFF should adopt the outdated and ludicrous notion of ‘trashing rights’. In the context of a neo-colonial state that is prepared to murder and jail activists, the tactical use of rights can be a matter of life and death. In this regard, the EFF and other decolonising activists have a lot to learn from social movements such as Abahlali baseMjondolo. These movements have tactically used courtroom battles and rights-talk to propel their counter-hegemonic strategies.
Other areas in which the EFF can learn from these movements is in how to prevent an irredentist agenda from collapsing into exercise in elite self-aggrandizement. As early as the 1940s, these movements have expropriated land from below and managed to build autonomous and inclusive communities. These urban movements show that a land reform processes do not have to collapse into processes of nativism and backward ideologies of autochthony in which the land will once again be balkanised along “tribal” lines. If the EFF is serious about decolonising South Africa, it would have to push for a post-conquest constitution that would lay a framework for a post-segregationist society based on African humanness. What is needed is a new inclusive constitution-making process (perhaps similar in form to the 1990 Beninese National Consultative Forum of Active Forces) that will come up such a post-conquest constitution.
Tshepo Madlingozi is a Senior Lecturer at the Faculty of Law, University of Pretoria and the Chairperson of Khulumani Support Group, a social movement that campaigns for reparation and restitution.
 This Forum was a popular assembly that brought together youth organisations, teachers’ association, organised business, trade unions, NGOs, religious groups, ex-presidents, the military and more than fifty political parties.