‘THE PERSONAL IS POLITICAL’: DECOLONISATION OF LAW

THROUGH THE DYNAMIC POWER OF IDENTITY AND CULTURE

In 2012 the judiciary complained that law graduates ‘are out of their depth and lack
communication skills’.1 In addition, the 2014 White Paper on Post-School Education and
Training concedes that ‘there is widespread concern that “learners emerging from basic
education are insufficiently prepared for further study exhibited through a veritable lack
of adequate reading, writing and comprehension skills”.’2 When students struggle to
comprehend the study material they consequently suffer feelings of inadequacy and
deficiency.3 It is possible that colonisation is the cause of the incomprehension of
[Constitutional] Law because of the transplantation of judicial institutions from the
developed world into developing states with no regard for the domestic circumstances.
This is unsustainable and invariably results in a repeated cycle of ‘violence,
governments collapsing, rights being altered, property being expropriated, new
constitutions being written and policies altered overnight’.4
1 IOL News, ‘Lack of skill in law graduates, says judge’ 30 July 2012.
2 White Paper on Higher Education, 6.
3 RJC Young Postcolonialism (2003) 6. Young states: ‘When faced with the authority of theory produced
by academics, people often assume that their own difficulties of comprehension arise from deficiency
in themselves’.
4 B Weingast (2008) ‘Why developing countries prove so resistant to the rule of law’ in JJ Heckman, R
Nelson & L Cabatingan (eds) Global Perspectives on the Rule of Law (2010) 20.
5 P Freire ‘Pedagogy of the oppressed’ in M Golby, J Greenwald & R West (eds) Curriculum Design
(1975) 143.
6 L Patel Decolonizing Educational Research (2016) 3.
The philosopher Paolo Freire wrote in 1975 that students must become active
participants in creating and negotiating knowledge so as to prevent the situation where
they simply ‘adapt to the world of oppression’ by consuming information without thinking
critically.5 Therefore, to achieve transformation, you, the student, need to actively
participate in creating alternative and decolonised epistemologies (knowledge systems)
that will resonate with the inextricable link to your understanding of yourself (identity)
and the society in which you operate (culture). Changing the way you think and the way
you behave should result in a political shift taking place, which carries with it personal
ownership of the process and the outcomes. Inevitably, the process and the outcomes
will thus be more legitimate, just and equitable, particularly since they affirm self-worth
and culture. The contribution of indigenous knowledge systems to theories of self-
determination, education and survival is crucial in eradicating the grip of colonialism.6
Guiding us is the National Development Plan 2030 emphasising South Africa’s
‘emerging identity, ethics, morality, indigenous systems, struggle for liberation, the
Constitution, and the creation of a non-racial society’. Since South Africa has an
autochthonous Constitution (indigenous/home-grown and which contains elements of
typically African concepts, such as Ubuntu) you should understand, interpret and
develop the law with reference to indigenous values. For example: CSL2601/102/2024
5
Since Ubuntu essentially means that everybody counts in society, Ubuntu’s relationship
with the constitutional law principles of the rule of law and democracy is clear. With
respect to the rule of law, two prominent Africanists, Mbembe and Ramose, argue that
ubuntu is a process of community-making that is premised on respecting the humanity of
others and engaging in ethical interaction with others. Their view is thus that all of us
must follow the rules all of the time to illustrate our respect and concern for each other’s
well-being. Once a pattern forms where certain people do not follow the rules, it would
be absurd to expect ethical behaviour from some but not others. On this thinking
anarchy could result if we do not act ethically. Similarly, in a democracy, everyone’s
opinion counts and must be considered. This is the epitome of a multi-party democracy,
which South Africa has. Everyone’s place in society and right to be heard must be
respected. Parliament is the representation of democracy in action, because it is as a
direct consequence of elections that have been held that the members of Parliament are
elected by us, the people, to represent our needs in that forum where the laws and
important decisions governing our lives are made. Thus, Ubuntu is applicable to
participation in the legislative process. As such, the people should be afforded an
opportunity to provide their opinion on decisions that will affect them. What the case of
Merafong Demarcation Forum and Others v President of the Republic of South Africa
and Others7 has revealed to us in paragraphs 133 to 140 is that genuine public
participation should occur. In the Merafong case, even though a consultative process
had been followed whereby the community were allowed to air their views, the opinions
of the community were blatantly disregarded. The majority of residents of Khutsong
opposed the Constitutional Amendment which would relocate Merafong municipality to
the North West province from Gauteng, yet the legislature brought the law into force
regardless of the dissatisfaction. As a direct result of the failure to give meaningful effect
to public participation, the Khutsong township of Merafong became ‘ungovernable’ and
resembled a war zone as residents refused to accept the decision to relocate the
municipality. Therefore, the conclusion is that public participation is essential, but it must
be real public participation and not formalistic thus giving the impression that it is taking
place whereas it is not in reality.
At a minimum, we should have the legitimate expectation that Parliament will not act
arbitrarily but will instead embrace the views and opinions even of the minority parties in
Parliament and act strictly according to the Constitution. However the evidence has
revealed that Parliament laundered the Public Protector’s Report ‘Secure in Comfort’ on
the “Nkandla” matter in an attempt to absolve the President of any wrongdoing,8 It is thus
unacceptable and intolerable for the minority parties in parliament to be marginalised
simply because there are fewer members of the minority in Parliament. Furthermore, in
the context of scarce resources (as per Mokgoro’s description of Ubuntu), corruption
cannot be tolerated because it is those same resources which are required for society’s
development and survival. Ubuntu thus signifies the approach that everyone must act in
solidarity towards a common objective.
By inculcating a culture of ‘thinking citizens, who can function effectively, creatively and ethically
as part of a democratic society … [with] an understanding of their society, and be able to
participate fully in its political, social and cultural life’, transformation will occur. Our approach is
that we afford you optimal opportunities for learning based on a well-constructed framework
that helps to make complex information understandable, relevant and personally important,
while maintaining truthfulness and accuracy about the topic. The well-constructed framework is
the Diagrammatic Representation of Constitutional Law.