Towards a post-conquest South African constitution: the legal potential of indigenous African proverbs

Abstract

Colonialism in South Africa subordinated and erased African legal thought and intellectual traditions; this is perpetuated by the 1996 Constitution, through its conceptual Eurocentrism and neoliberal alignment. In contrast, African proverbs, which have been preserved, practically unchanged, through multi generational oral tradition, offer culturally grounded expressions of African notions of justice. Accordingly, this dissertation investigates the legal potential of indigenous African proverbs as a source of law for a post conquest South African constitutional order rooted in Ubuntu and African epistemologies. Drawing from Ubuntu justice theory and Azanian political philosophy as the theoretical frameworks, the discussion shows that indigenous African proverbs do indeed encapsulate legal principles; furthermore, the legal principles in African proverbs can be combined and applied to contemporary legal issues to reach a coherent jurisprudential conclusion, particularly land redistribution and the legal enforceability of socioeconomic rights. The discussion concludes that Ubuntu and the African proverbs that give it meaning, fundamentally conflict with the current constitutional framework, with the former embodying African principles of communalism and the latter being ideologically neoliberal and Eurocentric. Efforts to converge African proverbs and the 1996 Constitution would inevitably distort the former and deradicalize them. Therefore, an authentically African post conquest legal order necessitates the abolition of the 1996 Constitution and the reconstruction of a post-conquest legal order rooted in Ubuntu, as enriched by African proverbs.