—Sindiso Mnisi Weeks, University of Massachusetts Amherst
More than twenty-five years since becoming a constitutional democracy, South Africa presents the perplexing paradox of arguably having the most progressive Constitution in the world marked by strong socio-economic rights protection while also being the most unequal country in the world (Gini Coefficient: .63) with growing poverty rates.
Amidst this reality have arisen the protestations of ordinary South Africans who voice feelings that, in the dominant legal system, the epistemological and ontological perspectives, moral values and normative convictions of the indigenous numerical majority are minoritised (Mamdani 2021) even as that same demographic of the population has and continues to be told that the adoption of the democratic Constitution of 1996 has fundamentally transformed South Africa to equally include them, as the formerly dispossessed. This constitutionally tolerated, if not constitutionally enabled, ‘dis/empowerment paradox’ (Sigauqwe 2018) that is endemic to South Africa’s formal system of legal pluralism under the Constitution is representative of ‘colonial unknowing’ (Modiri 2018).
The book from which my remarks draw, Alter-Native Constitutionalism: Decolonising ‘Common’ Law to Transform South Africa (CUP, forthcoming 2023), confronts a disquieting but essential question more and more vociferously raised by those many ordinary South Africans who justifiably see the law as playing a significant role in the inequitable distribution of economic and social goods and are thus critical thereof. That question is: What is really meant by constitutionalism and “the Rule of Law” in a country in which, over a quarter of a century after apartheid’s end, the dominant legal system of European origin is not indigenous to the nearly 81% majority Black African population who also experience poverty at over 64 times the rate of the settler White population?
In the book’s introduction, the pertinence of this question is demonstrated using the heart-breaking case of Komape and Others v Minister of Basic Education  ZALMPPHC 18, which concerned a five-year-old who drowned in a pit latrine at his rural school in Limpopo Province, South Africa. In August 2018, the Limpopo High Court dismissed the Komape family’s claim for R2m ($115,000) in damages. Judge Gerrit Muller’s rejection of the bulk of the damages claim (both under the common law and constitutional law) was on the basis that he wanted more compelling psychological evidence than had been presented.
Reading the court transcript, one sees how the Komapes had been completely unheard during the hearing when they explained how their positionality in vernacular law caused them to be, see and know differently than what the state court expected. In Mr. Komape’s haunted words, “every day when I go to sleep I see Michael’s hand. … My son died and he died in the toilet. It is for the first time I saw something like that.” Similarly, Ms. Komape tried to convey: “It is because my child died in the toilet and I saw my child in the toilet and when I saw him in the toilet there is a waste of many people there and that caused me a lot of pain.” (emphasis added)
The possibilities for an ethnographic reading of this case are immense. But I isolate a narrow sliver here to demonstrate the book’s theoretical and later applied attempts to re-imagine constitutionalism based on empirical evidence. This engagement can be referred to as ‘constitutional ethnography’ if we take that to mean constitutional analysis and theorisation that departs from and is embedded in ethnographic encounters with those who live under and are making meaning of constitutionalism in and through the lenses of their day-to-day experiences. That is, if we integrally take into account, in our ethnographic study of constitutions, the fact that, as duly noted by H. Kwasi Prempeh (2007) , for most ordinary people, “the constitutionalism that would seem to matter the most is not always or necessarily the high constitutionalism of the political elites … but a low constitutionalism … that would address the rampant impunity and abuse of power by officials at the most basic level of the public administration.” Such administration includes the principal and governing body responding to a fatal accident at the local school in the Komape case.
As with the collection of articles Kim Scheppele introduces in the Law and Society Review’s special issue on ‘constitutional ethnography’, my book seeks to “enable researchers who work on other times or other places to see… how national, local, and distinctive ideas modify the universalist ambitions of abstract constitutional theory” (2004: 393–394). As it happens, the account provided in my book partly reveals that the localised practices and context of South Africa and the lived realities of its predominantly indigenous African people have barely and thus inadequately altered the global legal aspirations, convictions and forms expressed in the country’s constitutionalism; hence, the need for an Alter-Native Constitutionalism.
Drawing on critical indigenous scholarship and Black/African feminist thought (Oyěwùmí 1997), mine is a project on Re-membering Alter-Natives in Re-imagining South African Law – starting with constitutional law. While my use of the word, “alternative”, implies some shared meaning between its two parts, the hyphenated “alter-native” is nonetheless distinguished from the conventional “alternative” by the composite nature of its etymology and meaning. The hyphenated version thus combines “alter” in “alternative” (or “alternate”) – thus suggesting “another possibility” as well as “interchange” – with “native”, which is an independent word with separate roots denoting those “born” on the land. This signals another possibility for constitutionalism in South Africa that, based on a decolonial conception of “the Natives”, allows for an equitable interchange between pluralist South Africa’s laws that more closely mirrors the reality of mixing and vernacularisation (Merry 1996) observed by most ordinary South Africans.
This re-membering of “alter-Native modes” of social and material existence, political participation, as well as normative arrangements (Grande 2015), occurs in and through indigenous languages and frameworks using ethnography as method. With that, the book re-imagines not only contemporary South African law and society but simultaneously legal scholarship in a manner grounded in hidden pasts, forgotten futures, and rejected ways of being (‘be–ing’), seeing (‘see–ing’) and knowing (‘know–ing’).
The book consolidates theoretical insights from 15 years of ethnographically-based research on the normative convictions and practices of communities that observe indigenous values as modified by historical encounters over time to produce what I call “vernacular law” (Mnisi Weeks 2018). Noting that “[t]hose who are said to weaken the rule of state law are contributing to the rule of customary law” (Woodman 1996: 160), I take seriously the ways in which the convictions, values and concomitant practices of vernacular law may operate as epistemological, ontological and methodological spaces of indigenous resistance to the oppression that people perceive as coming with imperialist logics, even in law. That is, what Audra Simpson has described as “the politics of refusal” (2007; 2014) in which some indigenous groups have engaged in their resistance of the logics of settler colonialism.
I thereby address the wide gap left by most South African constitutional law scholars who concern themselves only with state law. I therefore question the extent to which “rights” discourse has come to dominate the terms of engagement about “justice” and thus had the effect of relegating the “naive intuitions of fairness” (Bourdieu 1987) of ordinary people to the margins of social discourse and the periphery of the public imaginative space for what is not only permissible but possible. I argue that it is by these means that even the Komapes’ particular psychological suffering is rendered “invisible” (that is, illegible), as well as invalid and illegitimate in terms of both “common” and “constitutional law”. This, indeed, is the essence of the “plunder” described by Laura Nader and Ugo Mattei (2008) as leaving people who are not formally within the “Rule of Law” lex nullius – that is, without law.
This brings me to experimenting with the proposed necessity of “Alter-Native Constitutionalism”. What is that? To build upon Scheppele’s (2004) and Berihun Adugna Gebeye’s (2021) definitions of constitutionalism, Alter-Native Constitutionalism is adherence to a system of political organisation, law-making and government whose institutionalised distribution of power and control, while premised on the written Constitution, is understood to be underwritten by the unwritten vernacular law, in which the social compact is ultimately founded. Thus, the legitimacy of the Constitution and Rule of Law are understood to be fundamentally supported (or, otherwise, undermined) by vernacular law.
Re-membering “alter-Natives” thus begins to set right the history of how the South African state was formed through bloody conquest (starting in 1652): plunder, justified using Roman-Dutch legal constructs. The undoing of the plunderous doctrines of both “terra nullius” (rendering the native occupants as having not laid claim to ownership of the land) and “lex nullius” (rendering them without law in terms of which they could legitimately defend their land), and their effects, are issues that should be seen and handled as mutually constitutive. The histories of violent land dispossession of indigenous Africans and the denial of the legitimacy of their normative and governance arrangements cannot be pulled apart.
Suggested citation: Sindiso Mnisi Weeks, Alter-Native Constitutionalism: Decolonising(?) ‘Common’ Law, Transforming South AfricaInt’l J. Const. L. Blog, Apr. 13, 2023, at: iconnectblog.com/i-connect-symposium-peopling-constitutional-law-revisiting-constitutional-ethnography-in-the-twenty-first-century-part-i-alter-native-constitutionalism-decolonising/