Case of Constitutional transformation in South Africa
Question
Task: Write a detailed report critically examining the case of constitutional transformation in South Africa.
Answer
Introduction
Constitutional transformation is important while a society of a nation is suffering from extreme inequality, lack of dignity and lack of proper social rights. The current study has mainly focused on the role of the constitution in the case of South Africa to implement transformation successfully. Subsequently, the issues in the legal culture of South Africa are identified and the social justice process is analyzed for distributive justice. At last, the transitional jurisprudence process is discussed in the essay.
Discussion
1. How does the Constitution play a role in transformations
The key focus of the South African Constitution is the country needs freedom and equality. The nation has faced issues in the progression of the life of human beings. Basic human rights, equality and freedom ensure the cultural and social development of a nation. This is why the government of South Africa has emphasized constitutional development and establishing basic human rights. The transformative constitution of South Africa has focused on the post-1994 right based approach for ensuring transformation. Civil, Political and Socio-Economic rights are the most important matters to all human beings throughout the world and this is the key transformation matters in the case of the South African Constitution. The transformed constitution has been established in South Africa during the year 1996 . The key change that has been mentioned in the constitution is transforming society. Based on this constitution, the central culture of the constitution of South Africa is to constrain transformative protection. The right justification is the important matter in the case of developing human rights of a country and that transformation has been found in the case of South Africa.
Another important matter that is found in the case of South Africa is real transformation by overcoming poverty. The reason is without poverty elimination, basic human rights cannot be established by a country. Hence, constitutional policy formulation has a significant role in the case of ensuring the transformation process. The term progressive democracy is used in the constitution which reveals that democratic revolution is important to a nation. Democracy helps to ensure equal rights and maintenance of peace within the country. Not only human dignity but equality and freedom can also provide effective results in the case of South Africa, the transformation according to the requirements is an important matter. Legal and Political Perspectives are properly mentioned in the constitution and these are needed to be transformed according to South African Constitution . The poverty in South Africa has damaged the socio-economic performance and this is why it is mentioned that dignity, equality and freedom according to the constitution cannot transform the society of South Africa. The transformation as per requirements is important.
The overall discussion in the above states that structural changes in the constitution are an important matter in the case of implementing transformation. Hence, in the case of the South African Constitution, the structural changes are essential. The legal perspective and political perspectives are mentioned in the constitution for transformation. Hence, constitutional changes ensure transformation.
2. The issue of South African Legal Culture
The transition is an important matter in the case of a country for ensuring social and economic development. Based on South African cultural and social position analysis, it is found that before 1902, racism was endemic in the country. After that period, the issue is going on consistently in South Africa and racism has been developed. It has created the requirements of the development of legal culture in South Africa. As racism was the key issue in the legal culture in South Africa,article 13 of the constitution of Malaysia is considered in the South African constitutional development process. The Constitution has stated that
No person shall be deprived of poverty save according to the law
No law shall be applied for compulsory acquisition or the property used without appropriate compensation.
From the above article discussion, it is found that poverty is another issue in the case of South African legal culture. Based on these issues, the interim constitutional development has been made by the government of South Africa. The bill of rights has been passed for developing the South African Constitution. The right means the equal right of each person and overcoming the issue of poverty and racism . The constitutional borrowings have been considered by the government of South Africa for developing the quality of the constitution.
Another important drawback of South African legal culture is lack of legal infrastructure according to the rules. This needs to be developed for overcoming the issue of culture. The legal culture has focused on the transformation based on legal infrastructural development. Article 13 of Malaysia has been considered in the development of the constitution of South Africa. It has ensured the constitutional development and overcoming the issue of South African legal culture. The comparative law evaluation has been done at the time of developing the constitution of South Africa. The fundamental values are evaluated based on the comparison of the constitution with other nations. The fundamental values include basic rights, change in the legal infrastructure and so on. These are important matters in the case of South African legal culture as the transformation has been done based on the inclusion of these values within the constitution.
3. Social Justice regarding Distributive Justice
The term jurisprudence refers to the philosophy of law and that has been considered in the social justice matter. Social justice has not been found in the society of South Africa and this is why the term social justice is included in the constitution. On the other hand, the term distributive justice focuses on the justice of an individual and it is identified in the case of South Africa. The developments of both social and distributive justice are important to a nation for ensuring equal rights within the society of human beings. Many socialist have stated that distributive justice can ensure the social justice process within the country. Based on the social justice system analysis in South Africa, it has been identified that a highly unequal injustice system has been found in the country. It depicts that social and distributive justice are not properly followed in the case of South Africa. Section 28 of the final constitution has focused on the implementation of equality in the justice system. The constitution of South Africa has been developed based on social interdependence and values.
The implementation of social interdependence has helped the constitution to implement social and distributive justice successfully.
Section 27(1) and 27(2) of the constitution of 1996 reveals that each person has equal rights in the society and hence, maintenance of equality is the responsibility of people. To implement the equality within the society, it is important to implement the social and distributive justice effectively . Social justice is essential for maintaining social equality and on the other hand, distributive justice is essential for developing individual welfare. The social inequality is common within the society of South Africa and this is why the transformation is important within the society. The constitutional development initiative is adopted in the government of South Africa for enhancing the appropriate transformation process. The effectiveness of distributive justice is needed to be enhanced and it would help to ensure the successful application of social justice. Hence, it is clear that social justice has a strong relationship with distributive justice and they are complementary to each other. In addition to civil and political rights, it is important to focus on social and distributive justice. The importance of social and distributive justice is considered by the various countries including the USA. To eliminate inequalities in society, the implementation of social and distributive justice both are important.
4. Transitional Jurisprudence and historic injustice with specific reference to the restorative justice
The term black consciousness philosophy is considered to evaluate the Black Consciousness Movement and it was raised in Africa during mid-1960. The inequality in rights to the black people has been identified since the year 1902 and this has created issues in the social development in Africa. This has been considered as historic injustice concerning restorativejustice. The term restorative justice focuses on criminal justice and that has been developed by the integration of communities. Criminal justice was important in the case of South Africa as the social injustice has been increased in that country and it has damaged the development of the nation. Under these circumstances, the transformation process has been considered by the government of South Africa. The transitional jurisprudence is an important matter for identifying the rule of law under the transformation. The change in regulations has been considered by the government for ensuring the proper transformation of constitutional rules. It has enhanced the development of human rights and dignity of people in society. From the overall discussion of the rules and regulations of constitutions of South Africa and historic injustice, it can be stated that Transitional jurisprudence is an essential factor to enhance the transformation of the constitution.
The social right related injustice is the historical injustice from Black Africans and this is why the restorative justice process has been implemented. The Social right law has been developed in the constitution of South Africa after the transformation during the year 1996. South African Constitutional Court has evaluated various cases regarding social right for protecting the interest of various people . The most distinctive element that is found in the case of South Africa's jurisprudence is adjudicating socio-economic rights in addition to political and civil rights. The Jurisprudence in South Africa has focused on the justifiability concern and hence, it is clear that the legal justice process is properly concerned by the constitutional court in South Africa. However, the difference is found in the jurisprudence for social rights. This is why social injustice has been found in society and historic injustice is found in the social structure.
Conclusion
The above discussion states that the transformation has been made in the South African constitution during 1996 for ensuring human rights in society. The social as well as distributive justices both are essential in the case of society for ensuring social and economic development. The basic human rights are primary matters in the case of a nation and that can be implemented based on constitution only.
References
Christiansen, E.C. Exporting South Africa's Social Rights Jurisprudence. Loy. U. Chi. Int'l L. Rev., 5, 29 (2007).
Davis, D.M. and Klare, K..Transformative constitutionalism and the common and customary law. South African Journal on Human Rights, 403.509 (2010): 26-3
Davis, D.M. Constitutional borrowing: The influence of legal culture and local history in the reconstitution of comparative influence: The South African experience. International Journal of Constitutional Law, 181.195 (2009): 1-2
Rapatsa, M.. South Africa’s transformative Constitution: from civil and political rights doctrines to socio-economic rights promises. TribunaJuridic, 208.219 (2015): 5-10
Roux, T. Principle and pragmatism on the Constitutional Court of South Africa. International Journal of Constitutional Law, 106.138 (2003): 7-1
