Not purpose-made! Transformative constitutionalism, post-independence constitutionalism and the struggle to eradicate poverty

Abstract

This article interrogates the relationship between constitutionalism and poverty eradication. Motivating this inquiry is the fact that in South African constitutional scholarship poverty eradication is not articulated as a benchmark or even a measure to determine the ultimate success or failure of social transformation. By this the article makes the claim that within constitutional discourse engagement with poverty seems to be mainly confined to, and mediated through, rights discourses rather than being seen as forming an integral part of the raison d'etre of post-apartheid constitutionalism. The main argument of this article is that whilst transformative constitutionalism is rightly regarded as the preferred approach to reading and understanding the Constitution, it suffers from certain pitfalls that render it ill-suited to delivering a project of poverty eradication. In particular, I shall be arguing here that one major pitfall is that transformative constitutionalism, whilst claiming to be post-liberal, is deeply imbedded in and comfortably co-exists with liberal discourses. In essence I shall be arguing here that (i) transformative constitutionalism finds a clear textual basis in the Constitution; (ii) academic commentators have gone to great lengths to articulate its vision and goals; and (iii) the courts have sought to enforce its principles and aspirations in adjudication, however the prevalence of a liberal democratic constitutional paradigm, has had the effect of defining the goods of constitutionalism in narrower terms than is in fact necessary or desirable. In making this argument the article shall critically engage with transformative constitutionalism, in particular its limits and pitfalls. In so doing, it shall draw upon a Fanonian critique to illustrate the pitfalls of elite dominated transformations. In addition to this the article engages the crisis of constitutionalism in post-independence Africa. It is against this background that the article makes calls for a constitutional conversation that more directly connects between constitutionalism and poverty eradication.

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