Two Cheers for Transformative Constitutionalism

We argued in earlier work that South Africa's democratic transition accomplished more than abolishing formal apartheid and replacing it with civil and political democracy. The transition also established a platform for “transformative constitutionalism,” an aspiration and generous constitutional framework for South Africa to embark on a postliberal path toward becoming an egalitarian social and economic democracy. Manifestly, the promised social and economic transformation remains largely unfulfilled. Many South Africans blame the constitutional settlement for this failure of delivery, seeing it as a weak compromise with the old regime that restricts socio-economic transformation. We reject this view and assign blame for the failure of the transformative project squarely on the politics and policies of ANC governments in power over three decades. The transformative project was not blocked by the constitutional settlement; it was never attempted. The ANC brought mostly conventional, liberal democratic goals to the transition negotiations. It embraced neoliberalism before the 1996 Constitution was drafted, indeed before the 1994 elections brought the ANC to power. Ironically, during the Final Constitution drafting process (1994-1996), ANC negotiators moved left under the inspiration of and pressure from the Mass Democratic Movement (MDM). The 1996 text is transformative in aspiration and in its toolbox of innovative legal technologies, but the ANC never took it seriously as a guide to policy. If South African politics ever realigns, future activists will find in the 1996 text a storehouse of legal values and tools meant to nourish radical social and economic change.