The articulation of an African philosophy of equality as legacy of the South African Constitution

• Published date: 01 January 2016
• Date: 01 January 2016
• Record Number: sapr1_v31_n1_a3
• DOI: 10.10520/EJC-c6bea62ca
• Pages: 32-53
• Author: Dunia Zongwe

32

ARTICLE

THE ARTICULATION OF AN AFRICAN

PHILOSOPHY OF EQUALITY AS LEGACY OF

THE SOUTH AFRICAN CONSTITUTION

Dunia P. Zongwe1

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 nal Constitution, promulgated in

1996, enshrines equality provisions that express lessons learned from South Africa’s history

of racism, colonialism and apartheid – a past dened 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 inuence 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 reecting on the successes and shortcomings of

the South African Constitution twenty years after its promulgation, I nd 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.

1 Senior Lecturer, University of Namibia. JSD (Cornell); LLM (Cornell); Cert (Univ Montréal); LLB

(Univ Namibia); BJuris (Univ Namibia). I owe deep debts of gratitude to Peter A. Iita, Cynthy R.

Owoseb and Petrus Shoopala for superb research assistance. I am also indebted to Leezola R. Green

for constructive comments on an early draft of this article. Any residual imperfections in this article

are my own.

https://doi.org/10.25159/2219-6412/2659

ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 31 | Number 1 | 2016 | pp. 32–53

33

Zongwe The Articulation of an African Philosophy of Equality

1. INTRODUCTION

Imagine, somewhere in Africa, judges striving to settle an unusual discrimination claim

before the court. The plaintiff complains that the state has indirectly discriminated

against her because she is a sex worker.2 She brings up the equality clause in that

African country’s constitution to le suit and seek redress against the state because its

laws criminalise sex work.

The dilemma the judges face is that, while the constitution forbids the state from

discriminating against people based on sex, it does not expressly stop it from differentiating

between people based on work. The plaintiff claims that the state’s differential treatment

has robbed her of her dignity and sense of self-worth, that she feels intensely violated,

and that the state’s criminal laws are indirectly discriminatory because most sex workers

are women, a vulnerable group in society.3 On the other hand, the respondent state

denies its conduct is discriminatory since distinctions between prostitution and other

professions are not only rationally connected to the state’s legitimate objectives, they

translate society’s loud rejection of the practice.

How should the court resolve this case? Does the distinction amount to a

violation of the plaintiff’s right to equality? If this is a case of discrimination, what

kind of discrimination is it? Situations such as these raise fundamental practical and

philosophical issues.

The Constitutional Court and other competent courts in South Africa have since

1994 developed an impressive and coherent philosophy of equality.4 Even if South

African equality jurisprudence has echoed across regions within Africa5 and without,6

2 The Constitutional Court of South Africa faced similar facts in Jordan and Others v S [2002] 6 SA 642

(CC).

3 The Supreme Court of Canada was confronted with similar arguments in Canada (Attorney-General)

v Bedford [2013] SCC 72.

4 For an examination of the equality jurisprudence of the South African Constitutional Court, see Anne

Smith, ‘Equality constitutional adjudication in South Africa’ (2014) 14 AHRLJ 609–632; Karthy

Govender, ‘The developing equality jurisprudence in South Africa’ (2009) 107 Michigan Law Review

First Impressions (MLR FI) 120–123, and Albie Sachs, ‘Equality jurisprudence: the origin of doctrine

in the South African Constitutional Court’ (1999–2000) 5 Review of Constitutional Studies 76–103.

5 See for example Gustavo Gomes da Costa Santos, ‘Decriminalising homosexuality in Africa: lessons

from the South African experience’ in Corinne Lennox and Matthew Waites (eds), Human Rights,

Sexual Orientation and Gender Identity in The Commonwealth: Struggles for Decriminalisation and

Change (Human Rights Consortium, Institute of Commonwealth Studies, School of Advanced Study,

University of London 2013) 313–337 (drawing lessons from the South African experience for other

African countries on how to advocate lesbian and gay rights).

6 See for example Anne Smith, ‘Constitutionalising equality: the South African experience’ (2008)

9 International Journal of Discrimination and the Law (IJDL) 201–249 (examining how South

Africa addressed the technicalities of constitutionalising equality in order to draw out lessons for

other countries in the process of constitutionalising equality); Charles J Ogletree, ‘From Pretoria

to Philadelphia: Judge Higginbotham’s racial justice jurisprudence on South Africa and the United

States’ (2002) 20 Yale Law & Policy Review (YLPR) 383–397 (praising South Africa’s racial justice