​​Did a “rainbow nation" interpretation of Ubuntu gloss over South Africa's historic injustices too fast? Pre-empting a premature push toward unity and reconciliation, before issues like poverty, joblessness and inequality were sufficiently reckoned with?

These were questions raised at a talk hosted by Stellenbosch University Museum, as part of the Ubuntu Dialogues Project. The talk entitled “Ubuntu, decolonisation and South African law" placed a search light on South Africa's 1996 Constitution, particularly its propelling model of transformative constitutionalism, a concept originally coined by American legal scholar Karl Klare.

Addressing a wide audience over Zoom, Dr Allison Geduld, jurisprudence and ethics senior lecturer at North-West University, and a 2021 Ubuntu Dialogues Seminar Exchange Fellow, called for more uncomfortable conversations around addressing South Africa's double colonial past.

“In 1996, South Africa adopted a final Constitution that envisions a society based on democratic values, social justice and human rights," said Geduld.

“Very importantly, how would we create this society? Well, the legal system would play a big role. Interestingly, our legal system did not change overnight. Obviously very overtly racist laws were repealed. But it was decided during this time of negotiation, that laws would be developed over time to align with constitutional rights and values.

“So the idea of transformative constitutionalism was that law, in time, would change our society into a more equal society. But do we see this happening?"

Geduld continued to say that transformative constitutionalism has proved insufficient in bringing about the change desired in South Africa, adding that a more radical interpretation of ubuntu had the potential to bolster this process.

“I think for a lot of people ubuntu represents the idea of being silenced," said Geduld. “You know, just after our transition, the idea was embraced that we would be one and united, and sort of forget about the past and grow together. And I think for a lot of people ubuntu sort of took up that notion of forgetting the past. And I don't think it should. If we incorporate more of a radical understanding, it has the potential of actually not silencing, but giving people a voice, shedding light on those types of inequalities that still exist in society."

She pointed out a spectrum of interpretations of Ubuntu, ranging from Archbishop Desmond Tutu's reconciliatory “rainbow nation" to a more radical stance posited by University of South Africa Philosophy Professor Mogobe Ramose.

“South Africa has had a long history of violence and disposition starting already 300 years ago," said Geduld. “Within this system of violence and dispossession in colonialism and apartheid, there was a very specific idea of what it meant to be human and really it was tied up with Western ideas, and it was really the idea of being white as well. And we still see a lot of those patterns being perpetuated in South Africa.

“For [Mogobe] Ramose, Ubuntu is rooted in African philosophy. It means that we cannot separate ubuntu from the whole quest for liberation of African people. And so in this sense, it has to be seen as part and parcel of a fight against colonial movements and coloniality.

“And so, part of ubuntu is about rebuilding the sense of being a human being, of being conscious that being African is not being inferior. Of feeling entitled and worthy as an African person."

Geduld said she was grappling with reconciling these two different views of ubuntu in her research.

Joining the conversation from Sydney's University of New South Wales, Professor Rosalind Dixon, expert in comparative constitutional law and constitutional design, said Australia had similar challenges.

“I'm reminded to think of the Australian context at the moment," said Dixon. “Where there's a big debate about how first nations can achieve justice. I think if people feel that their fundamental demands for justice haven't been met, to move forward is hard, right?

“In South Africa, many people feel the preconditions for ubuntu are not present. That in order to feel committed to ubuntu, one has to have a sense of being respected, a sense that one's own economic situation has been addressed and acknowledged, as well as the history of racism."

Drawing the discussing broader, Dixon pointed out that for a value to successfully contribute to decoloniality in a country, it needs to serve as both a bridge and a catalyst of change.

“It has to be capable of radical change, but also a degree of continuity and preservation that can take us from the colonial moment to the post-colonial moment in the true decolonial sense," she said.

“Because we know that we don't start afresh; whether we are informally influenced, whether the common law carries over, whether habits, conventions, norms, investment patterns, social practices carry over; we never start on a clean slate. And there has to be some acknowledgement of that continuity, even as we seek to reconstitute it."

Dixon suggested not viewing South Africa's constitutional project through the lens of one set of values, but rather as a dialogue among values.

“And one of those values clearly is ubuntu," she said. “My own view is that sometimes ubuntu might be a stronger discourse, other times transformative constitutionalism might be stronger, depending on the context and the valence.

“I think ubuntu is not by itself capable of carrying the weight of social inclusion and economic transformation… And that it may need to be in dialogue with other ideas about equality and transformation in order to do the work of decoloniality that Alison [Geduld] so powerfully encourages us to aim for. So, to put ubuntu as the sole candidate for radical change, maybe that will press it too hard, asking too much of it."

Geduld concluded that she was hoping to stir more debate and “dangerous conversations" around these topics. “You know, there really is a need for conversations about whether we have incorporated enough African perspective into our legal system," she said.

The Ubuntu Dialogues Project is a collaboration between Stellenbosch University and Michigan State University, where it is hosted by the African Studies Center.

 ​​