The Articulation of an African Philosophy of Equality as Legacy of the South African Constitution

Abstract

African nations have in common the brutal and humiliating experiences of racism, slavery, colonialism, exploitation, and marginalisation. I refer to this collective trauma as the triple humiliation of racism, slavery and colonialism. These shared experiences to a varying degree have informed those nations’ perspectives on equality and non-discrimination in the quest for the recognition of equal humanity. Unlike the rest of the continent, several countries in Southern Africa (ie, Namibia, South Africa, Zimbabwe) achieved black democratic rule towards the end of the twentieth century. Most notably, in 1994 South Africa realised democratisation and adopted an interim constitution. The final Constitution, promulgated in 1996, enshrines equality provisions that express lessons learned from South Africa’s history of racism, colonialism and apartheid – a past defined by institutionalised inequality.

The Constitutional Court and other competent courts since 1994 have developed an impressive and coherent philosophy of equality. Although South African equality jurisprudence has echoes in all regions of Africa and beyond the legal sphere, no effort has been made to bring this radiating influence to its ultimate conclusion, namely that the South African Constitution and constitutional law  largely articulates a truly African philosophy of equality. I draw just such a conclusion. In reflecting on the successes and shortcomings of the South African Constitution twenty years after its promulgation, I find that the equality jurisprudence is indisputably an enduring legacy, not only in South Africa, but in Africa as well. Earlier studies have not elevated the equality jurisprudence to an African jurisprudence because they did not connect the ideal of equality to the pan-African philosophy of the muntu or ubuntu. If the connection is made, different people in different parts of the continent will not merely be able to appropriate this philosophy; they will actively build on it as a rich, invaluable, living source of meaning, self-identity and self-worth.