The South African debate on whether
its Constitution is a facilitator or inhibitor in the quest to transform
society is not only long overdue but is in fact timely given the minimum time
period it takes to periodize a generation if 1990 to 1994 is the conception point
of the Constitution. There is a full generation of youth that is about to enter
its productive life and start families including concretizing its lifelong
philosophy of life. Issues of nationhood, citizenship, economic participation,
and the power relations structures are under scrutiny in relation to the next
twenty years. In stable societies, such imaginations are shaped by elders of
society who have accepted the responsibility of ensuring continuity of much
that is going on and influencing the discarding of what a civilization can live
without. How elders relate to power relations in society will be determined by
how cohesive that society ends up being.

In its preamble, the Constitution
declares that ‘we, the people of South Africa, recognize the injustices of the
past …’, and to that effect ‘adopt this Constitution as the supreme law of the
Republic so as to … ‘heal the divisions of the past and establish a society
based on democratic values, social justice, and fundamental human rights”. The
path the Constitution lays is one that recognizes injustice, summons the Constitution
as the supreme law, to heals … a past, and undergird the entire process with ‘democratic
values, social justice, and fundamental human rights. The question will thus be,
what constitutes that injustice, what are its attributes, and what will be
indicators that the injustice has been resolved. Further to that what is this
healing that must occur, and if it is genuine healing what should be its visible
manifestation in society beyond being quarantined to see less of the unhealed
if we are healed, healers, or in the process of being healed. There will also be
a need to be deliberate and mentioning as to what has, is still, and will
continue to divide us which we should direct our healing processes towards to
avoid recidivism.

These constitutional injunctions,
which are the basis of a society we have agreed we are establishing based on
democratic values, social justice, and fundamental human rights, should be what
our constitutionalism is about. In its founding provisions, the Constitution
anchors the state on the values of, and supposedly in addition to the undefined
or unmentioned democratic values in the preamble, of “human dignity, the
advancement of equality, human rights and freedoms”, and “supremacy of the
Constitution and the rule of law”. The demographics that South Africa has
become known for, its inequalities, its management of economic access value
chains, and many other societal challenges which have generated a continuum of
grievances further foreground the compelling need to be deliberate about the
nuts and bolts of human dignity as it applies to those that do not know human
dignity is written in the constitution but would rather want to tell of their
practical experience of human dignity.

Naturally, the interpretation of
the preamble and founding provisions will generate differences that will spawn
conflicts of both interest and ideation. The judiciary, which is independent,
is expected to adjudicate such interpretations as they play themselves in the
allocative prowess of government as the active agent of the state, and in other
organs of state as well as organs of human co-existence facilitation
established in the private sector realm of legal citizenship by South Africans.
In these interpretations, social justice would dictate a process that
interrogates the extent to which there are impediments towards the achievement
of restitution objectives on any matter. For instance, the objects of
employment equity should not be a subject to be interrogated in the
adjudicative arm of the state, but its application is related to the collateral
freedoms of all that is involved in what should be reconciled through
interpretation. 

🤷🏿‍♂️Shhh, miyelani