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Essay / The applicability of transformative, fractured and imposed constitutionalism in Africa
The challenges associated with imposed and fractured constitutionalism could be resolved by adopting transformative constitutionalism. Klare (1998) views transformative (objective) constitutionalism as a significant change in constitutional contexts, culture and attitude; that is, practical change in terms of progressive realization of democracy and rights on the ground. Such change occurs when the constitution translates into concrete events that strengthen the protection of citizens' rights. The author (Ibid) argues that the inclusion of socio-economic rights in the South African constitution constitutes a good example of transformative constitutionalism. However, the general assessment of the South African system has been called into question by the numerous protests against service delivery, Rhodes Must Fall campaigns at various universities and protests against free education at universities. Say no to plagiarism. Get a tailor-made essay on “Why violent video games should not be banned”?Get the original essay Teshome (2014) defines transformative constitutionalism as seeking to overcome past discrimination and disadvantages experienced by groups on the basis of race, sex, color, while ensuring equal rights and protection for all citizens. According to former South African Chief Justice Pius Langa, transformative constitutionalism should bridge the past of a deeply divided society, characterized by conflict, untold suffering and injustice, and a future based on the protection of human rights, democracy and peaceful cooperation. existence and development opportunities. After twenty-four years of freedom in South Africa, this idea of transformation still remains a chimera, as in most African countries. Transformative constitutionalism aims to establish substantive equality in society by understanding systematic and entrenched domination and inequalities, examining the social and economic condition of communities, the impact of inequality among vulnerable groups and taking remedial measures to improve the disadvantaged. Kibet and Fombad (2017). ) argue that transformative constitutionalism, which was popularized during South Africa's transition from apartheid to democracy, is the solution to the failure of constitutionalism and the weak protection of fundamental rights and freedoms in Africa . This argument could explain why the Western world continues to support constitution-making processes in Africa, the recent cases being those of Kenya and Zimbabwe following the post-election violence that took place in these two countries. They believe that only respect for the rule of law can solve Africa's problems. Transformative constitutionalism focuses on substantive equality and justice, which involves the empowerment of previously excluded segments of society through the protection of socio-economic rights and the achievement of social justice. This inevitably requires a broader vision of justice, beyond the narrow conception of "negative rights", with less emphasis on technical and procedural legal aspects, since the achievement of substantive justice requires that the State be proactive. Since transformative constitutionalism places great faith in law as an instrument of social and political change, legal practitioners, legislators, and law enforcement must view law as such and be prepared to conceptualize it and to deploy it to achieve the.