Human Rights & South African Constitutionalism: An Interdisciplinary Perspective on Debates over the past Twenty Years

Publication Type:

Journal Article


Ufahamu: A Journal of African Studies, Volume 38, p.137–153 (2014)



This paper explores three South African debates over the past twenty years to outline an interdisciplinary perspective on South African constitutionalism. Two of these debates were set firmly within law, the third less so. The first two debates took place within the explicit formal framework of administrative law, although the application of that very framework was part of the contest in both. The third debate, regarding the {HIV}/{AIDS} epidemic, is widely recognized to have both legal dimensions and dimensions beyond the law. Within the framework of socioeconomic rights, all three debates provide some content to a South African tradition of constitutional and deliberative democracy. Part of the intention in this effort is to consider the possibility of reaching out to other disciplines and scholars beyond those identified within the doctrinal legal community to creatively understand South Africa’s continually forming and reforming constitutional tradition. Another purpose is to pose the question of whether there is enough distance, after twenty years of constitutional democracy, to gain some purchase on current constitutional debates by exploring past ones in their historical context.

Law and Personhood

The assembling of a new set of South African and global citizenships has taken on new urgency and a new plurality twenty years after the supposed advent of freedom. Categories make persons and persons make categories, as Jones and Dlamini have recently pointed out. In the South African constitutional text – where the phrase ‘categories of persons’ is written – race is but one of sixteen categories on the formal list. The Constitutional Court has added more.  Indeed, the effort of desegregating publics now takes place without the freshness of new symbols and with potentially stale institutions. In the public sphere, some responses to this era of citizenship reformation harken back to earlier times – either to times of forward-thinking, to times of social-making, or even to times of separating. Other responses rest in a consumptive present or appear as mere promised rhetorical bridges into the future. In this project WISER will examine the new questions that scholars in law, society and the humanities are posing themselves and others. What are the complex fashions in which bounded enclaves and social categories are fraying and unravelling or reforming? How, if at all, are persons remaking themselves as citizens? At the same time that these questions pose themselves, new fields of play are emerging with the changing audiences of the fashion shops and the sports terrains as well as the changing forms and formats of affluence and the new middle class. The very concept of a person as well as their categorical boundaries may shift with the movement of blood, organs, and self-awareness.

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