Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction
Abstract
Against the backdrop of South Africa's transition from apartheid, this provocative book explores the role of late twentieth century constitutionalism in facilitating political change. Using South Africa as a case study, Klug's larger project is to investigate why there has been renewed faith in justiciable constitutions and democratic constitutionalism despite the widespread recognition that courts are institutionally weak, lack adequate resources and are largely inaccessible to most citizens. He places this question in a broader context, evaluating the appeal of different constitutional models and illustrating how globalized institutions can be adapted to serve local domestic needs. Incorporating constitutional law, politics and legal history, this examination of South Africa's constitution-making process provides important insights into the role of law in the transition to democracy.
... World society theory explains this phenomenon as a globalizing constitutionalism where all constitutions around the world would gradually gravitate towards a single-type constitution that would reflect common features and provisions. This process would occur as a result of several international factors including participation in international organizations, memberships in international treaties, and other global relations channels through which norms and ideas are exchanged, such as colonial master-subject relations (Heinz Klug 2000;Julian Go 2003). ...
... World society likewise posits that, given the global influence, there is expected to be, beyond the singleness of the document, a homogenization of constitutional provisions where all existing constitutions would share some basic features that point to a standardization (Klug 2000;Go 2003). These features range from provisions on how political power is organized, through how labor is divided, to what the principles and objectives of governance should be (Go 2003). ...
... More uniformly, it has become the norm for newly written constitutions to have at least six basic chapters that specifically spell out provisions for the structure of the legislature, executive, and the judiciary as well as the processes of amendments, ratification, and protection of inherent fundamental rights (Lerner and Lupovici 2019). This process of constitutional homogenization is referred to in Klug (2000) as globalizing constitutionalism. David Law (2008) attributes it to an intensifying globalization. ...
Global forces known to shape constitutional provisions are abound in SSA. Africans have increasingly participated in world affairs since colonization, and according to world society, are expected to adopt constitutional provisions influenced by Western liberal norms. Truly, post-colonial African governments have rapidly adopted new constitutions or regularly revised old ones to organize social-political life. However, little has been known about the extent to which the new constitutions may be products of global forces present on the continental sub-region, in light of world society. This study contributes to the existing literature by addressing that knowledge gap. While globalization exhibits significant relationships with constitutional trends, it does not do so in the direction expected. The results indicate, unexpectedly, that globalization does not necessarily lead to the adoption of Western liberal norms, but rather, energizes African governments to gravitate towards the adoption of African indigenous (customary) laws. This finding has a few implications. Historically, African customary laws have conflicted with Western liberal norms, a situation that led to the ban on some customary law systems by colonial masters. However, the clamor back to indigenous laws, inadvertently enabled by current global forces, raises questions about the efforts of international organizations such as the CEDAW and the ICCPR on the continent. These organizations, for instance, have long-standing grievances with African customary laws, partly due to the atavist nature of the laws. However, if countries that are members of these organizations are more likely to adopt the unfettered practice and protection of African customary law and institutions than countries that are not, then questions need to be raised about the influence of
these organizations on the continent. Alternatively, questions need to be raised about the ingenuity of governments that sign international treaties with these organizations but are able to get around to continue administering laws that are potentially unpopular with these organizations. Also, currently, studies on what factors determine states’ behavior towards new laws are lacking. Thus, this study contributes to the literature by exploring which and how global forces may be relevant to the discussion. Futuristically, researchers would be able to build on this study’s findings to predict how various states will approach current controversial laws as well as emerging ones on gay rights, women’s rights, and environmental quality.
... These efforts aim to create a more equitable society, acknowledging and addressing the systemic inequalities of the colonial era (Baxi, 2012;Gandhi, 2018;R'boul, 2020). Similarly, South Africa's focus on equality is a response to its legacy of apartheid (Klug, 2000), while Rwanda, in the aftermath of its devastating genocide, prioritizes unity and reconciliation, with an emphasis on reducing inequality to prevent future conflict (Barnett, 2002). Bosnia's constitution grapples with the challenge of addressing ethnic division and minority rights in the aftermath of war (Belloni, 2007). ...
This paper explores the intricate relationship between socio-cultural dynamics and human rights in multicultural societies. It examines how norms, belief systems, and power structures shape the perception and exercise of these universal principles. The study employs a qualitative research design, specifically using the Cultural Relativism Framework, to investigate how cultural norms and values influence the interpretation and application of human rights. Through the analysis of literature and case studies, the paper elucidates the interaction between cultural context and human rights interpretations. It acknowledges that human rights are not uniform but are influenced by diverse cultural contexts. Key findings underscore the significance of multiculturalism in human rights interpretation, the impact of social, cultural, and political contexts, the intersection of values, beliefs, and customs, and the roles of states, civil society, and international organizations in shaping human rights discourse. The paper advocates for educational initiatives, intercultural dialogue, inclusive policymaking, and legal reforms to promote and protect human rights in diverse societies. It recommends enhancing human rights education, facilitating intercultural exchange, empowering civil society, addressing discrimination and inequality, and integrating customary laws with formal legal systems. By fostering mutual respect and understanding, societies can uphold human rights and cultural diversity, enabling peaceful, equitable coexistence. This assertion is based on empirical observations and scientific principles that highlight the importance of mutual understanding in preserving human rights and promoting cultural diversity. This paper contributes to a deeper understanding of human rights, advocating for a balance between universal principles and cultural specificities.
... The multilateral institutions, including the World Bank, argued that it was the failure of governance that explained Africa's lack of economic development (Ndulo 2001, 102). While the global political culture in the post-Cold War era stressed the need for constitutions to protect property and political rights (Klug 2000), Muna Ndulo (2001) stressed the need to recognize the legacies of colonialism and the need to build democratic cultures and institutions as part of constitution making in Africa. However, as Gould's study demonstrates, the simple adoption of liberal constitutions-which provided for multi-party democracies and formally protected individual rights to property and freedom-remained largely detached from most segments of Zambian society. ...
... Local drafters may solicit external advising to confer domestic -or international -legitimacy (Tushnet, 2015: 852). In South Africa, for example, the government's need to establish itself as a legitimate player in the international community in the post-Apartheid period led to massive involvement of foreign organizations and academic experts in constitutional advising (Klug, 2000). Similarly, after the fall of the Soviet Union, the attempt to gain EU membership led many Central and Eastern European countries to seek advice from European organizations such as the Venice Commission in the process of constitution re-writing (Lerner & Lupovici, 2019;de Visser, 2015). ...
The article presents the first systematic comparative study on the growing involvement of international organizations in national constitution making around the world. Over the past three decades, the emerging field of international constitutional advising has undergone an intense process of institutionalization and professionalization, mirroring the increasing role constitution making is playing in both national and international politics. Despite the vast scope of the phenomenon, the involvement of foreign constitutional advisors in domestic constitution-drafting or constitutional reforms has received little scholarly attention. This article takes the first steps towards addressing this lacuna empirically, by introducing a new dataset on 46 international organizations involved in 730 constitutional advising projects in 145 countries between 1989 and 2017. We classified the organizations based on their type, their headquarters’ location, the countries they target, the kind of advising activities they perform and the level of directness of the advising intervention. While generally, we find a significant correlation between more direct constitutional advising activities and larger relative changes in the quality of democracy and larger numbers of constitutional systems in a country, the article suggests avenues for more nuanced research to better understand constitutional advising’s impact.
... The ANC made these changes so that it, and not the apartheid state, would be fully perceived as the legitimate representative of the South African people (Goodwin 2007;Klug 2000). For example, upon declaring the group's adherence to the Geneva Conventions in 1980, the ANC contrasted their organization's compliance with the South African government's disregard for international law. ...
How does third-party diplomatic and material support affect rebel groups’ use of terrorism in civil wars? We argue via a game-theoretic model that diplomatic support prompts prospective shifts in rebel tactics, from civilian to military targets, in anticipation of material support, while material support alters the cost structure of attacks, leading to the same tactical shift. We empirically test the model’s implications using an original dataset of UN resolutions about countries in civil wars as well as a case study of South Africa. In support of our theory, we find that both diplomatic resolutions and material interventions in favor of the rebels are associated with rebel tactical shifts, leading to decreased reliance on violence against civilians. These findings demonstrate the value of modeling civilian and military targeting as substitutes rather than examining civilian targeting in isolation.
... In that particular context, national constitution-making at the end of apartheid took place against the background of an involved and inherently limiting international order. 10 As Klug tells the story, it was a necessary but not sufficient condition of a shared South African rights tradition that enabled the major political actors to turn towards the crucial understanding of a justiciable Bill of Rights. 11 Klug insists that "while it may be reasonable to believe that the victims of apartheid would support the introduction of a bill of rights in response to the massive denial of rights under apartheid, there is less reason to believe that there should be an equivalent faith in the judiciary as the upholders of such rights." ...
This special issue demonstrates the importance of attending to the reception of constitutional concepts in overlapping transnational and local contexts and, for Africans including South Africans, the importance of attending to the economic structures embedded in constitutional political texts. The most significant difference between directive constitutionalism and transformative constitutionalism is the constitutional audience or actor the concepts are primarily addressing – the legislature or the judiciary. This significant distinction reveals a fault-line within the South African development of transformative constitutionalism. This comment begins to explore how the focus within transformative constitutionalism on the judiciary – judges as audience – came to be. During the negotiations/compromise to end apartheid and to establish a democratic constitution, the actors were at times various times speaking to a future audience of legislators and at other times were speaking to an audience of judges. One early 1990 South African constitutional analysis focused on the Constitution to be drafted as a document not only aimed at legislators but indeed embodying constitutional directives in directive constitutionalism’s sense of the term. Two years later, the most influential writing on directive principles primarily viewed the idea through the then-ongoing debate over the timing and content of the South African Bill of Rights to be enforced by the judiciary. Within the broad church of transformative constitutionalism in South Africa, a democratic tradition of constitutionalism has persisted since the years of the late 1980s and early 1990s but is probably best described as minority or contesting. South African constitutional theory could use a bit less transformative and a bit more directive constitutionalism.
... Fernandes havia sido "preso para averiguações" -prática policial consistente em prender e manter presas, sem autorização judicial e fora do contexto de um flagrante, pessoas consideradas "suspeitas". A "prisão para averiguação" era prática até então normal, mas, segundo a nova Constituição, "ninguém será preso senão em flagrante delito ou por ordem escrita e fundamentada de autoridade judiciária competente (...)". 1 A incidência da nova regra seria tão evidente que, segundo o advogado de Fernandes, sua mera presença na delegacia teria feito os policiais liberarem seu cliente: "todo mundo já está sabendo que esse tipo de prisão é ilegal". 2 (Dupré, 2003), Polônia (Sadurski, 2001) e África do Sul (Klug, 2000), o alinhamento entre uma nova Constituição e um novo regime político foi deliberadamente enfatizado pelo tribunal para anunciar uma nova era jurisprudencial. 4 Esses tribunais se apresentaram publicamente como instituições especializadas na proteção de direitos fundamentais, com reflexos na pauta que escolheram para si e nas ideias com que justificavam sua atuação. ...
Resumo Neste trabalho, procuro reconstruir Ellwanger como um momento de mudança no discurso adotado pelos ministros do STF para descrever e justificar seu poder em uma democracia. Ao longo dos anos 90, o tribunal havia sido no geral contido na maneira como exercia seus poderes e não havia investido em uma pauta de direitos fundamentais. Em contraste com outros tribunais em democracias recentes no mesmo período, o STF não se aproveitou do potencial ganho de legitimidade proporcionado pelo “novo começo constitucional” de 1988. No processo de transformação desse tribunal tímido no STF que temos hoje, Ellwanger pode ser lido como um ponto de virada na narrativa dos ministros. Ao longo do julgamento, o tribunal se apresentou, pela primeira vez desde a Constituição de 1988, como representante local de uma tarefa global: a proteção de direitos fundamentais de indivíduos ou grupos social ou politicamente vulneráveis. Com o voto do ministro Celso de Mello traçando a diferença entre o “velho” STF e a “nova” lógica de atuação, Ellwanger dá ao tribunal a chance de construir um “novo começo”, afirmando-se – no discurso, ainda que não necessariamente na prática – como um protetor de direitos fundamentais.
... The upbringing of the right to quality and sustainable education in a democratic country is an exercise that engrosses all government arms and domains working hand in hand, including the judiciary (Klug, 2000). After the legislature has made the framework available, it is the responsibility of the executive to ensure that the right concerned is enforced and achieved while the judiciary must ensure that the right in question is interpreted appropriately (Ibe, 2007). ...
This paper examines the judicial intervention in safeguarding the comprehension and the fulfilment of the right to quality education through its pronouncements and judgements. The paper showcase that these judgements and pronouncements have now become essential regulatory tools shaping the administration and enforcement of the right to quality education in South Africa. It emphasizes that the judiciary on its pronouncements showcase the importance of understanding the meaning of the right to education and steadfast the significance of having social services connected to the learning environment for the delivery and realization of quality and sustainable education. It concludes that this right is inalienable and as such, it is incumbent on the government and institutions responsible for the protection of this right to certify that the right is promoted, protected and provided for at all cost. The paper recommends that the judiciary must continuously contribute in ensuring that quality education is promoted and protected by pronouncing judgements that promote quality sustainable education connected with good social services in schools across South Africa. Received: 20 August 2021 / Accepted: 15 December 2021 / Published: 5 March 2022
... Constitutionalisation can mitigate this risk because it makes the CPA justiciable, empowering courts to resolve disputes relating to the peace agreement. Klug (2001) argues that the justiciability of a democratic constitution may be a solution to fundamental political and normative tensions that are left unresolved during peace negotiations. He develops this argument through an analysis of the negotiations around South Africa's interim constitution of 1993, where the central tensions revolved around individual autonomy and property rights versus social equality and state intervention to achieve transformation. ...
This chapter argues that post-conflict constitutions (PCCs) should be viewed as peace agreements. Conceptually, a PCC is a peace agreement for the same reason that a comprehensive peace agreement (CPA) is one: it is a contract that aims to end violence and prevent its recurrence. Empirically, I show that the parties to a CPA generally seek to constitutionalize their negotiated settlement in whole or in part. They envisage constitutional reform as a means of addressing the credible commitment problem and consolidating, institutionalizing and maintaining peace. By virtue of its status as supreme law, moreover, the PCC supersedes the CPA and becomes the definitive peace agreement. This chapter aims to contribute to an understanding of intra-state peace agreements and open up a research agenda and policy discussion on the peace maintenance function of PCCs.
Virtually all philosophical discussions of the rule of law’s meaning assume that the proper horizon of the concept is the national legal system, or what I call “the rule of law writ small.” But governments are bound by a web of transnational legal obligations that should also be considered part of the rule of law’s scope. Analyzing whether the rule of law is honored against the backdrop of both national and transnational law gives us “the rule of law writ large.” This concept has particular force in the context of backsliding (and democracy-restoring) governments when autocrats first pull their governments away from transnational norms before newly elected democrats seek to restore compliance with those norms. While both sorts of governments may change domestic law, and pack political institutions with those who share their values and fire those who get in their way, only the democracy restorers can be said to be honoring the rule of law writ large.
The basic values rooted in a democratic constitution serve as the foundation for protecting individual liberty, establishing an equitable society, and encouraging civic duty. At its heart, a democratic constitution must explicitly proclaim people's sovereignty, guaranteeing that all political authority is derived from popular desire. This includes holding free, fair, and regular elections that allow individuals to pick their representatives without force or manipulation. Furthermore, the constitution should guarantee fundamental human rights and freedoms such as free speech, religion, assembly, and the press, promoting an atmosphere in which different points of view may be expressed and heard. The notion of the rule of law must take first place guaranteeing that all persons and institutions are held accountable to the law, which is equitably applied and enforced. Another key component is the separation of powers, which provides checks and balances to prevent abuse of authority by different and independent departments of government (executive, legislative, and judicial). Furthermore, the constitution should encourage social justice, equality, and minority rights, guaranteeing that all people have equal opportunities and are protected from discrimination. This study focused on secondary sources of knowledge about the idea and status of the fundamental values entrenched in the democratic constitution. These principles, taken together, guarantee the creation and preservation of a dynamic, inclusive, and resilient democratic society.
This chapter investigates the notion of ‘justice’ that informs ‘just and equitable’ compensation in section 25 of the Constitution and questions whether this notion changed during the attempt to amend section 25. It starts off by investigating the possible meaning of ‘justice’ during the transition and interrogates the usefulness of that notion of justice in interpreting section 25. It makes the argument that the conversations bringing about the Constitution Eighteenth Amendment Bill, even though not leading to an amendment, were important to challenge the notion of ‘justice’. The adoption of this Constitution lays a secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation (Epilogue of the interim Constitution, 1993).
This Introduction has three objectives. The first is to situate this volume within the current phase of South Africa’s difficult engagement with land reform in particular and transformative constitutionalism in general. For this purpose, we characterise the recent debate on ‘Expropriation Without Compensation’ (EWC) and the political developments leading to the tabling, and failure, of the Constitution Eighteenth Amendment Bill. In section two, we begin with an account of the research project and conference that led to this volume and then review the book’s three-part structure and its individual chapters in relation to each other. While there are important points of convergence with regard to the contested assemblage of law, land reform and redistributive justice, there are also divergent views for probing further. In the third section, we respond to this challenge by addressing three interlinked issues that emerge from a transversal reading of the chapters, which we regard as central for the future of redistributive justice in South Africa. These are, first, the respective roles of the state, popular politics and the private sector in driving this project; second, the relative importance to be attached to productive and redistributive measures as building blocks of change; and third, the scale of the structural changes that are needed.
‘Expropriation without compensation’ has crystallised in South African discourse into a symbolic rejection of inherited privilege, with calls for a constitutional amendment that presupposes a legal constraint on the property regime. The intentions of the lawmakers in the ‘property clause’ debates of the 1990s were to craft what I term a ‘mandate for transformation’. Yet the state has failed to override property owner interests in favour of the landless. Second, the battle over ‘expropriation without compensation’ since 2018 has not been about what is written in the Constitution. Third, the counterpoint to the fixation on state power to acquire property is the right of citizens to gain access to land on an equitable basis. This under-developed idea languishing within the property clause offers the basis for constitutional claims for a right to land. Inverting attention from state powers to enact reform to citizens’ powers to claim rights, it could serve as a focal point for emancipatory politics grounded in real struggles.
Legal and social movement scholars have long puzzled over the role of movements in moving, being moved by, and changing the meanings of the law. But for decades, these two strands of scholarship only dovetailed at their edges, in the work of a few far-seeing scholars. The fields began to more productively merge before and after the turn of the century. In this Element, the authors take an interactive approach to this problem and sketch four mechanisms that seem promising in effecting a true fusion: legal mobilization, legal-political opportunity structure, social construction, and movement-countermovement interaction. The Element also illustrates the workings and interactions of these four mechanisms from two examples of the authors' work: the campaign for same-sex marriage in the United States and social constitutionalism in South Africa.
O autoritarismo tem passado por uma metamorfose. Historicamente, autoritários abertamente reprimiam oponentes através da violência ou grave ameaça e subvertiam o Estado de Direito para perpetuar seu governo. A repressão a tais práticas abertamente autoritárias pós-Guerra Fria proporcionou incentivos significativos para evitá-las. Ao invés disso, a nova geração de autoritários aprendeu a perpetuar seu poder através dos mesmos mecanismos jurídicos existentes em regimes democráticos. Ao agirem assim, eles ocultaram práticas repressivas sob a máscara do direito, embutindo-as com o véu da legitimidade, tornando as práticas antidemocráticas mais difíceis de serem detectadas e eliminadas. Este artigo oferece uma abrangente teoria transversal de tal fenômeno, o qual denomino como “autoritarismo furtivo”. A partir da teoria da escolha racional, o texto explica a expansão do autoritarismo furtivo através de diferentes estudos de caso. O artigo preenche um vácuo na literatura, a qual tem deixado sem teorização o aprendizado autoritário ocorrido após a Guerra Fria e a emergente confiança em mecanismos jurídicos, especialmente infraconstitucionais, para perpetuação do poder político. Muito embora práticas autoritárias furtivas sejam mais prevalecentes em regimes não democráticos, esta pesquisa ilustra que elas também podem ocorrer em regimes com credenciais democráticas favoráveis, incluindo os Estados Unidos. Sendo assim, o texto busca orientar o debate acadêmico em torno de práticas levadas a cabo pelos regimes, ao invés de analisar tipos de regimes. Conclui-se discutindo as implicações do autoritarismo furtivo para acadêmicos e políticos. Os mecanismos de promoção da democracia existentes nos Estados Unidos e em outros lugares são pouco úteis na detecção das táticas autoritárias furtivas. Paradoxalmente, estes mecanismos, os quais concentram-se limitadamente na eliminação das deficiências democráticas mais evidentes, têm proporcionado cobertura jurídica e política para práticas autoritárias furtivas e criado as próprias condições para que elas se desenvolvam. Além disso, autoritarismo furtivo pode em última instância tornar a governança autoritária mais durável ao esconder as práticas antidemocráticas sob a máscara do direito. Ao mesmo tempo, no entanto, o autoritarismo furtivo é menos insidioso que sua alternativa mais tradicional e repressiva, podendo, em certas circunstâncias, produzir as condições para expansão e amadurecimento da democracia, numa dinâmica do tipo “dois passos para frente e um para trás”.
Traducción al español de la versión original en inglés del artículo: Hart, Gillian. 2006. "Denaturalizing Dispossession: Critical Ethnography in the Age of Resurgent Imperialism". Antipode. 38 (5): 977-1004.
Ubuntu refers to a traditional African concept commonly expressed in the phrase “I am because we are.” It therefore relates to an understanding of shared identity, and potentially galvanizes collaborative actions towards the common good. Given this, could Ubuntu be of value in addressing the collective challenges faced at a global level?
The following study seek to answer this question. Moreover, it explores conceptualizations of Ubuntu, examines its applications within the South Africa context and then considers its (potential) relevance to global citizenship and global governance. This is undertaken through a review of current literature and an analysis of semi-structured interviews involving participants from academia, politics, civil service and the NGO sector.
The research finds Ubuntu to be a cultural value system, analogous to a broad humanism, which informs both collective and individual identity and action. The concept also appears to have influenced South African public life in variety of ways, from decision-making (‘consensus-building’) to policy development to restorative justice initiatives. Furthermore, an emergence of Ubuntu within certain global discourses (such as debates around universal human rights and global governance reform) can, indeed, be observed.
Finally, on the basis of these findings, an attempt is made to fashion a global citizenship/governance framework of analysis. Limitations of the framework are then considered, followed by a brief discussion around the need for further research in this area.
How do international financial institutions such as the World Bank and the International Monetary Fund influence constitution-making processes? In this essay on Anna Saunders's “Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance,” I argue that the material dimensions of constitution-making are profoundly influenced by the discursive environment that institutions like the World Bank help create for political elites. I show how these institutions operate in opaque ways that are difficult to capture in the results of that constitutional process but serve to facilitate, expand, or contract the options available to constitution-makers to engage with material questions, especially those that involve historic injustice. My argument adds nuance to Saunders's claim that constitution-making traditions display a “relative separation from projects of global economic ordering.” Drawing on an example that Saunders uses, this essay engages with how an international financial institution—the World Bank—acted in a facilitative modality and influenced constitutional history and the current practices of land reform in South Africa since its negotiated transition in 1994. I then show how international financial institutions acted in a more prescriptive modality during the constitution-making processes in Hungary. I choose these countries as examples due to their canonical status for studying the influence of international assistance for constitution-making in the post-1991 moment. What these examples show is that while international financial institutions can guide “post-sovereign” constitution-making states toward better integration into the global economic framework, the sustainability of their constitutional arrangements often depends on broader domestic consensus.
After 1994, the democratisation of the South African state led to the introduction of a new disaster management paradigm aiming to protect vulnerable populations and sustainable development. Yet, the transformation of the law, the bureaucracy, and the profession was a slow, conflictual, and difficult process shaped by different groups, each with its visions and interests. What notions of risk and vulnerability meant for disaster policy and the re-engineering of the state resulted from those attempts by specific groups (politicians, professionals, scientists) to shape reforms, gain or retain control over their jurisdictions. Contradictions between bureaucratic, political, and professional developments limited state building and the extension of state protection against disasters.
The subfield of political anthropology developed out of anthropology's long‐standing engagement with politics, power, interests, and forms of contestation around the world. Political anthropology is a vibrant area of the discipline today, if no longer bounded as a distinct area of inquiry. The pervasiveness of power relations and the stakes in actually existing politics in anthropologists' ethnographic locations make political anthropology central to anthropology's theories, methods, reflexivity, and relevance.
Under what conditions do states protect minority rights in a context of domestic resistance? Recent decades have seen rapid divergence on LGBT rights worldwide, with Africa presented as “norms antipreneur” in the face of international pressure. Yet, in 1996, South Africa was the first country in the world to provide constitutional protection on grounds of sexual orientation. This article develops an original theory on LGBT rights protection using a conflict-to-rights framework. Employing process tracing, elite interviews and archival sources, I show how a situation of insurgency allows LGBT activists to build networks and increase egalitarian attitudes to attain in-group status. Continued violence also works to block public participation in policy-making while dividing opposition forces, allowing a tiny group of activists to effectively lobby for change.
This chapter places South Africa’s smooth leadership renewal in the broader debates on political transition and democratic consolidation in Africa. Unique to other revolutionary political parties across the continent, the ANC preceding presidents have exhibited significant respect for the party and national constitution and step down whenever such calls are constitutionally sanctioned. Nelson Mandela voluntarily relinquished power and constitutional provisions were successfully evoked to induce the resignation of his two successors, Thabo Mbeki and Jacob Zuma respectively. Considering experiences obtained in other African countries with regard to leadership renewal, the ANC’s experience can be viewed as a success story, despite some cracks which also appear in the ANC constitution and the tendency of the party to embrace a political culture exhibited by other revolutionary parties in the region. Leadership renewal has been a nightmare for many post-independent African countries. In some parts of the continent, the legitimacy crisis over leadership metamorphosed into a socio-economic and political crisis with devastating effects on the well-being of the citizens. It is from this backdrop that this chapter examines the contribution of leadership renewal to constitutionalism and the promotion of democracy in South Africa. The chapter further examines the lessons that can be learnt by other revolutionary parties from the South African experience in order to democratise political transitions and avert potential conflicts associated with political transitions in the region. This is notwithstanding the fact that, while the ANC has demonstrated a strong adherence to constitutionalism, it is also overwhelmed by its failure to address a number of socio-economic challenges that continue to afflict the country and the generality of its citizens. The findings relied upon secondary data.KeywordsAfrican nation congressDemocratic consolidationConstitutionalismLeadership renewalPolitical transition
Modern state law excludes populations, peoples, and social groups by making them invisible, irrelevant, or dangerous. In this book, Boaventura de Sousa Santos offers a radical critique of the law and develops an innovative paradigm of socio-legal studies which is based on the historical experience of the Global South. He traces the history of modern law as an abyssal law, or a kind of law that is theoretically invisible yet implements profound exclusions in practice. This abyssal line has been the key procedure used by modern modes of domination – capitalism, colonialism, and patriarchy – to divide people into two groups, the metropolitan and the colonial, or the fully human and the sub-human. Crucially, de Sousa Santos rejects the decadent pessimism that claims that we are living through 'the end of history'. Instead, this book offers practical, hopeful alternatives to social exclusion and modern legal domination, aiming to make post-abyssal legal utopias a reality.
Modern state law excludes populations, peoples, and social groups by making them invisible, irrelevant, or dangerous. In this book, Boaventura de Sousa Santos offers a radical critique of the law and develops an innovative paradigm of socio-legal studies which is based on the historical experience of the Global South. He traces the history of modern law as an abyssal law, or a kind of law that is theoretically invisible yet implements profound exclusions in practice. This abyssal line has been the key procedure used by modern modes of domination – capitalism, colonialism, and patriarchy – to divide people into two groups, the metropolitan and the colonial, or the fully human and the sub-human. Crucially, de Sousa Santos rejects the decadent pessimism that claims that we are living through 'the end of history'. Instead, this book offers practical, hopeful alternatives to social exclusion and modern legal domination, aiming to make post-abyssal legal utopias a reality.
The Public Protector (Ombudsman) became the center of attention in South African politics. This research questions whether the Public Protector has played an expected role as an Ombudsman. Despite its importance, there are few studies on the office. This research is the first academic work to evaluate the office's role both empirically and comprehensively. It analyzes the Public Protector's activity by using annual and investigation reports released by the office. It finds four points: the successive Public Protectors have strengthened the office's operational capacity; the Public Protector mainly investigates small, non-political cases; ordinary citizens are the main complainants, except for politician-relating cases, and; while high-profile cases are controversial, the Public Protector success to resolve most cases. In short, while the Public Protector has secured ordinary citizens' interests, it has failed to correct the allegations of politically high-profile people. Thus, some reforms are required to keep a politically-biased person from office. While the study has some problems due to the issues related to the material on which it is based, this paper would lead to an enhanced understanding of the current South African politics and pave way for future research on the Public Protector.
In recent years, there has been an increasing interest in social justice action that is deliberate and affirmative to marginalised groups in South Africa. The background to this is framed against a ‘Missionary-political justice’ or 'missional-political justice' approach, the clear distinctive that characterises missional imperatives that is very clearly related to postmodern South African culture... [and] emerging churches in postmodern contexts'. The use of this approach gives a new wave of interpretation in the field of mission in order to ultimately deal with developments in South Africa generally but more particularly within ecclesiological structures. An adequate case is defended, and the implications of apartheid in the current South Africa necessitate affirmative action as justice and finally an examination of justice and restitution as founded in Scripture, as a fundamental authority is argued. This article brings a missional-political discourse into discussion with the Scriptures as well as practical theology. It also explores the intersections between the theological theme of social justice from theological and educational interactions.
The inspiration for this book was a Summer School on State, Governance and Development presented by distinguished academics from the School of Oriental and African Studies, London. Written by young African scholars, the chapters here focus on state, governance and development in Africa as seen from the authors’ vantage points and positions in different sectors of society.
The book opens with three forewords by eminent African scholars – Ben Turok, Johan Burger and Mohamed Halfani. The chapters that follow examine rent-seeking, patronage, neopatrimonialism and bad governance. They engage with statehood, state-building and statecraft and challenge the mainstream opinions of donors, funders, development banks, international non-governmental organisations and development organisations. They include the role of China in Africa, Kenya’s changing demographics, state accountability in South Africa’s dominant party system, Somalia’s prospects for state-building, urban development and routine violence, and resource mobilisation.
At a time in which core institutions are being tested – the market, the rule of law, democracy, civil society and representative democracy – this book offers a much-needed multi- and inter-disciplinary perspective, and a different narrative on what is unfolding, while also exposing dynamics that are often overlooked.
This volume focuses on the rise of transnational constitutional laws, primarily created by the interaction between national and international courts, and by the domestic transformation of international law. Through detailed analysis of patterns of institutional formation at key historical junctures in a number of national societies, it examines the social processes that have locked national states into an increasingly transnational constitutional order, and it explains how the growth of global constitutional norms has provided a stabilizing framework for the functions of state institutions. The book adopts a distinctive historical-sociological approach to these questions, examining the deep continuities between national constitutional law and contemporary models of global law. The volume makes an important contribution to the sociology of constitutional law, to the sociology of post-national legal processes, and to the sociology of human rights law. This title is also available as Open Access.
Modern law seems to be designed to keep emotions at bay. The Sentimental Court argues the exact opposite: that the law is not designed to cast out affective dynamics, but to create them. Drawing on extensive ethnographic fieldwork - both during the trial of former Lord's Resistance Army commander Dominic Ongwen at the International Criminal Court's headquarters in The Netherlands and in rural northern Uganda at the scenes of violence - this book is an in-depth investigation of the affective life of legalized transitional justice interventions in Africa. Jonas Bens argues that the law purposefully creates, mobilizes, shapes, and transforms atmospheres and sentiments, and further discusses how we should think about the future of law and justice in our colonial present by focusing on the politics of atmosphere and sentiment in which they are entangled.
The principle and practice of pro bono, or volunteer legal services for the poor and other marginalized groups, is an increasingly important feature of justice systems around the world. Pro bono initiatives now exist in more than eighty countries – including Colombia, Portugal, Nigeria, and Singapore – and the list keeps growing. Covering the spread of pro bono across five continents, this book provides a unique data set permitting the first-ever comparative analysis of pro bono's growing role in the access to justice movement. The contributors are leading experts from around the world, whose chapters examine both the internal roots of and global influences on pro bono in transnational context. Global Pro Bono explores the dramatically expanding geographical and political reach of pro bono: documenting its essential contribution to bringing more justice to those on the margins, while underscoring its complex and contested meaning in different parts of the world.
This volume analyses the social and political forces that influence constitutions and the process of constitution making. It combines theoretical perspectives on the social and political foundations of constitutions with a range of detailed case studies from nineteen countries. In the first part leading scholars analyse and develop a range of theoretical perspectives, including constitutions as coordination devices, mission statements, contracts, products of domestic power play, transnational documents, and as reflection of the will of the people. In the second part these theories are examined through in-depth case studies of the social and political foundations of constitutions in countries such as Egypt, Nigeria, Japan, Romania, Bulgaria, New Zealand, Israel, Argentina and others. The result is a multidimensional study of constitutions as social phenomena and their interaction with other social phenomena.
This collection of rich, empirically grounded case studies investigates the conditions and consequences of 'juridification' - the use of law by ordinary individuals as a form of protest against 'the state'. Starting from the actual practices of claimants, these case studies address the translation and interpretation of legal norms into local concepts, actions and practices in a way that highlights the social and cultural dynamism and multivocality of communities in their interaction with the law and legal norms. The contributors to this volume challenge the image of homogeneous and primordially norm-bound cultures that has been (unintentionally) perpetuated by some of the more prevalent treatments of law and culture. This volume highlights the heterogeneous geography of law and the ways boundaries between different legal bodies are transcended in struggles for rights. Contributions include case studies from South Africa, Malawi, Sierra Leone, Turkey, India, Papua New Guinea, Suriname, the Marshall Islands and Russia.
Political and Legal Transformations of an Indonesian Polity is a long-term study of the historical transformations of the Minangkabau polity of nagari, property relations and the ever-changing dynamic relationships between Minangkabau matrilineal adat law, Islamic law and state law. While the focus is on the period since the fall of President Suharto in 1998, the book charts a long history of political and legal transformations before and after Indonesia's independence, in which the continuities are as notable as the changes. It also throws light on the transnational processes through which legal and political ideas spread and acquire new meanings. The multi-temporal historical approach adopted is also relevant to the more general discussions of the relationship between anthropology and history, the creation of customary law, identity construction, and the anthropology of colonialism.
What does it mean to say that it is 'We the People' who 'ordain and establish' a constitution? Who are those sovereign people, and how can they do so? Interweaving history and theory, constitutional scholar Chaihark Hahm and political theorist Sung Ho Kim attempt to answer these perennial questions by revisiting the constitutional politics of postwar Japan and Korea. Together, these experiences demonstrate the infeasibility of the conventional assumption that there is a clearly bounded sovereign 'people' prior to constitution-making that stands apart from both outside influence and troubled historical legacies. The authors argue that 'We the People' only emerges through a deeply transformative politics of constitutional founding and, as such, a democratic constitution and its putative author are mutually constitutive. Highly original and genuinely multidisciplinary, this book will be of interest to democratic theorists and scholars of comparative constitutionalism as well as observers of ongoing constitutional debates in Japan and Korea.
Political scientists analyze the global rise of judicial appointment commissions as a response to judicialized politics. They argue that appointment processes have formalized to include more constituencies now affected by judicial decisions. This article presents evidence from Southern Africa confounding their expectations. In this region, formalization has social as well as political origins. Over the last two decades, the senior judiciary has suddenly become subject to the same demands for organizational accountability and descriptive representation that sociologists of other professions have been documenting for decades. Throughout the region, therefore, it has become increasingly difficult to defend opaque practices inherited from British (and South African) colonialism. Twenty years ago, Namibia, Botswana, Lesotho, and Swaziland/Eswatini all recruited most appellate judges from abroad through informal channels. In every country, this system has come under pressure from a variety of local sources. Yet those demanding reform have always been able to mobilize new international orthodoxies that require the judiciary to represent its society and make itself accountable to profane, external audiences. These new orthodoxies have acquired an unusual power in Southern Africa thanks to their embodiment in South Africa’s own post-apartheid transition, and long-standing moral imperatives to “localize” senior expatriate positions in postcolonial states.
Offering an alternative view of the jury process, this book argues that each stage transforms ordinary citizens, who are oftentimes reluctant to serve on juries, into responsible jurors. Jurors, Professor Marder argues, are not found, but rather they are made and shaped by the jury process. This book analyzes each stage of this process, from initial summons to post-verdict interview, and shows how these stages equip jurors with experiences and knowledge that allow them to perform their new role ably. It adopts a holistic approach to the subject of jury reform and suggests reforms that will aid the transformation of citizens into jurors. By studying the jury from the perspective of jurors, it gives readers a better understanding of what takes place during jury trials and allows them to see juries, jurors, and the jury process in a new light.
Depuis l’ouvrage de Florence Bernault consacré à l’histoire des prisons africaines, les sciences sociales francophones sont restées singulièrement silencieuses sur les enjeux carcéraux en Afrique. Le présent volume entend combler ce manque à partir de recherches ethnographiques – entretiens, enquêtes de terrain, consultation d’archives – conduites par une équipe pluridisciplinaire dans dix pays du continent, en Afrique francophone et anglophone : Tunisie, Sénégal, Burkina Faso, Côte d’Ivoire, Ghana, Nigeria, Éthiopie, Burundi, Cameroun et Afrique du Sud. Cet ouvrage permet de rompre avec les images archétypales et lacunaires souvent véhiculées sur les prisons du continent, et propose une lecture nuancée de l’expérience carcérale articulée aux représentations de la justice. Il étudie le phénomène carcéral en Afrique dans une perspective historique autant qu’il s’intéresse aux enjeux contemporains de la réforme carcérale. Enfin, il invite à saisir l’empreinte de la prison au-delà de ses murs. Il intéressera les chercheurs, les étudiants ainsi que la pluralité des acteurs impliqués dans le travail carcéral et dans les débats sur les réformes pénitentiaires et le sens de la prison.
On 13 December 2019, South Africa’s Parliament published a notice inviting public comment on a proposed amendment to that country’s celebrated 1996 Constitution. 1 In seven tersely worded pages, the explanatory memorandum sets out the need for a change to section 25 – the property clause. If adopted,2 the amendment would add a provision stipulating that a court, ‘where land and any improvements thereon are expropriated for the purposes of land reform’, may determine that the compensation payable is ‘nil’. In addition, Parliament, rather than the judiciary, would be given the authority to specify the circumstances in which this kind of determination could be made.
The attacks of 9/11 kickstarted the development of a pervasive and durable transnational counter-terrorism order. This has evolved into a vast institutional architecture with direct effects on domestic law around the world and a number of impacts on everyday life that are often poorly understood. States found, fund and lead institutions inside and outside the United Nations that develop and consolidate transnational counter-terrorism through hard and soft law, strategies, capacity building and counter-terrorism 'products'. These institutions and laws underpin the expansion of counter-terrorism, so that new fields of activity get drawn into it, and others are securitised through their reframing as counter-terrorism and 'preventing and countering extremism'. Drawing on insights from law, international relations, political science and security studies, this book demonstrates the international, regional, national and personal impacts of this institutional and legal order. Fiona de Londras demonstrates that it is expansionary, rights-limiting and unaccountable.
The past four years have seen fierce debates over a radical proposal aimed at speeding up the redistribution of land in South Africa—the expropriation of privately-owned land without the payment of compensation. The proposal and its reception must be located within the complex politics of land in the post-apartheid era, in a context where land reform is widely seen as failing to live up to its promise. The notion that ‘expropriation without compensation’ (EWC) offers a simple solution to the many problems facing land reform in South Africa is critically assessed and found wanting. To address the wider problems of land reform and ensure that it’s potential is realized, the state must address other key aspects of policy—beyond simply land acquisition and its cost. These include specifying the socio-political purposes of land reform, intended beneficiaries, anticipated impacts on livelihoods, the nature of land rights to be held by beneficiaries, and building capacity for effective implementation. But government is unlikely to do so on its own accord; sustained pressure ‘from below’, exerted by potential beneficiaries themselves as well as their allies in civil society and the state, will be required. Popular politics is thus key to the prospects for appropriate and effective land policy in South Africa.
ResearchGate has not been able to resolve any references for this publication.