Thirty years of South African constitutional democracy and the crisis of Black Thought

The year 2024 marks the so-called 30 years of constitutional democracy in South Africa. To those who subscribe to this idea, the so-called first democratic elections of 1994 mark the beginning of a nonracial democratic dispensation in South Africa. Reconciliation between blacks and whites through the “entrancing” magic of Desmond Tutu and Nelson Mandela symbolised the fulfilment of the Charterist dream of “South Africa belonging to all who live in it, black and white”. For a moment as far as the Charterists are concerned this 1994 period marked some kind of “the end of history” as the ideology of Charterism reigned supreme. But a historically misguided ideology without a material foundation in terms of the socio-economic aspirations of the African majority was bound to unravel at some point.

The Black Liberal Thought of the “civilized natives” in the ANC and their “friends of the natives” ala white liberals orchestrated behind the scenes, one of the famous triumph of liberalism in South African history and politics. Today these “friends of the natives” in the DA are still celebrating their ideological triumph since 1994. They managed to triumph in the “war of position” without winning the numbers game in the election process. To this day both liberals and radicals in South Africa rely on the constitutional framework as a way to analyse the main problems plaguing the “post-Apartheid South African era”. Archie Mafeje was correct about how Black nationalists succumbed to the ideological charm of white liberals. Thirty years later Black nationalists and white liberals are still “strange bedfellows” to the detriment of the African majority. Black scholars within both the Black Liberal Tradition and the Black Radical Tradition are caught up in the ideological vortex of South African liberal constitutionalism.

By the Black Liberal Tradition in South Africa, we imply the strand of thought pioneered by a cohort of “civilized natives” whose main premise is the acceptance of whites and white civilization. This tradition contests the failure of whites to live up to the promises of their culture and civilization. It is based on the philosophy of moral suasion by appealing to whites for recognition. Unlike the Black Radical Tradition, it does not seek to negate white culture and civilization but pursues the transformation of both whites and their civilization so that they can live up to their promises of equality and freedom. The fallacy of thirty years of constitutional democracy is a product of this tradition. The assimilation of the African majority on the basis of the illusion of non-racialism is an inevitable conclusion of this tradition. In terms of philosophy, this tradition is premised on negative dialectics. The main purpose of this logic and critique is to underscore the contradictions of a totality and to call for their elimination. In other words, if the totality is a white settler colony such as “South Africa”, the problem is identified as the failure to realise the promises of equality and freedom as embedded in the framework of constitutional democracy as opposed to eliminating the entire white settler colonial structure and its institutions. The petitionists of the ANC who appealed to the British empire as loyal subjects of white culture and civilization were driven by this logic and critique of negative dialectics. The ANC proponents of the anti-apartheid movement who problematised the exclusionary nature of the Apartheid regime were also influenced by negative dialectics. So, the attainment of citizenship and liberal rights since 1994 marks the triumph of negative dialectics of the “civilized natives” of the ANC.

It is in this sense that the triumph of the ANC’s negative dialectics under the tutelage of the “friends of the natives” has resulted in historical revisionism about constitutional democracy in South Africa. Constitutional democracy does not trace its origin to 1994. Constitutional democracy under white settler colonialism commenced in 1853 with the Cape colony constitution which accepted the first “civilized natives” as voters on basis of the so-called nonracial franchise. While white settler constitutional democracy has been characterise by the exclusion of the African majority especially since the formation of South Africa in 1910 to 1983, it is false to argue that there was no constitutional democracy. White settlers exercised their right to vote on the basis of their constitutions to preserve white supremacy. This is a historical fact. Charles Mills called it “herrenvolk democracy” but democracy, nonetheless. Discontent with exclusion is a moral judgement which cannot change the historical fact of the existence of constitutional democracy by white settlers and for white settlers. C.L.R James acknowledged the exclusionary nature of European democracy since ancient Greece. Women and slaves were excluded from democratic participation in ancient Greece and many Western countries.

The Black Liberal Thought of the ANC is helplessly fascinated with white culture and civilization that is it prepared to revise history to deal with the pain of exclusion. The spell of white settler constitutionalism is overwhelming. The Black Liberal Thought has produced the black constitutional triumphalists who are willing to revise history to include black lawyers within the epistemological framework of the European conqueror to make the absurd claim of the indigenous roots of the constitution of 1996. The Black Radical Thought on the other hand is led by black constitutional abolitionists who are calling for the elimination of the constitution of 1996. It is in this sense that Black Thought is currently dominated by constitutionalism and legalism. Constitutional discourse has reached a dead-end which must be transcended for the struggle for national liberation of the African majority to evade stagnation. Constitutional critique is now “normal science” thus the African majority urgently needs “revolutionary science” of national liberation. There must be a paradigm shift from Legal Studies (both liberal and radical) characterised by constitutional discourse to an extra-constitutional discourse which focuses on whites, their culture and civilization. The fundamental premise of this paradigm shift must be the historical fact that white settler colonialism in South Africa is founded on war and maintained through the threat thereof. War is one of the dominant traits of European culture and civilization.

Heraclitus, Hobbes, and Hegel are some of the key thinkers who clearly formulated the importance of war in European history and thought. Thus, when Van Riebeek told the Indigenous people that “the country had thus fallen to our lot, being justly won in defensive warfare and…it was our intention to retain it” he was affirming the culture and civilization of the Europeans since Greece. He was at the same time throwing a challenge at them by emphasising the power of war and the ongoing war of power between the natives and the settlers. It is in this sense that the natives must formulate an Afrikanist War-Studies paradigm as a way out of the current dead-end of constitutional critique. The natives must recognise the significant historical fact that their land was dispossessed since 1652 outside and prior to constitutional democracy. The first settler constitution of 1853 did not authorise land dispossession but merely legitimised it like the current constitution of 1996. It is in this sense that Black Thought must transcend its crisis by transitioning from constitutionalism to extra-constitutionalism. Black Thought must respond to the following question, how can the Indigenous people conceptualise land restoration outside the current constitutional framework?

BY Masilo Lepuru
A Researcher and founding director of the Institute for Kemetic and Marcus Garvey Studies (IKMGS).