Doctoral Degree (Constitutional Law and Philosophy of Law)

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  • ItemOpen Access
    The value of pre-colonial conflict resolution methods in addressing sexual violations committed in internal conflict situations in Zimbabwe
    (University of the Free State, 2022) Gcumeni, Fungisai Gloria A.; Van Marle, K.
    The study considers the development of jurisprudence in conflict resolution with reference to pre-colonial African law in addressing sexual violence against women. The motivation for this investigation stems from the inadequacies of the present legal system in Zimbabwe to redress sexual violations perpetrated against women in the internal ongoing political conflict. The aim of the study is to garner insights from African traditional justice mechanisms in conflict resolution in determining their value in addressing sexual violations against women in Zimbabwe. This investigation of present-day Zimbabwe as a product of colonialism and imperialistic tradition explores its contribution to the loss of African values that shape the current approaches in addressing sexual violence. The socio-political, economic and cultural landscape of Zimbabwe post-independence mimics the political ontology under colonialism. The adopted governing principle of constitutionalism and its post-conflict justice initiatives adopted at independence until the present perpetuate coloniality. The existing conflict in the coexistence structure of Western and pre-colonial African law in conflict resolution is a foregoing challenge in the present legal system in Zimbabwe that prompts new thoughts in post-independent Zimbabwe. The aim of the study is to propagate the re-imagination of the present law and approaches to sexual violations against women from Zimbabwe's political conflict that disrupts post-colonial Zimbabwe. The present study invokes the task of recalling the pre-colonial African philosophy of Ubuntu in conflict resolution in the re-imagination of an alternative jurisprudence. The task of re-envisioning jurisprudence in the resolution of conflict-related sexual violence offers a liberating viewpoint that counters the Western domination and marginalisation of African indigenous knowledge in post-conflict justice initiatives in Zimbabwe. The study investigates the pre-colonial African philosophy of law and justice interpretation in conflict resolution to analyse and evaluate the challenges of the present conflicting existence of the two legal systems and the challenge this poses in addressing conflict-related sexual violence in Zimbabwe. The study explores the possibilities of integrating Western and pre-colonial African philosophy and systems in conflict resolution on sexual violence arising in internal conflict situations. To that end, the study proposes an integrating approach in resolving conflict-related sexual violations that assumes Ubuntu epistemology as the jurisprudence that might bridge the jurisprudential challenges and gaps in the lack of approaches on sexual violations against women in Zimbabwe.
  • ItemOpen Access
    Xenophobia against non-national academics employed at higher education institutions in South Africa: A legal perspective
    (University of the Free State, 2022) Naidoo, Amanda; Brand, J. F. D.
    In this thesis I explore xenophobia against non-national academics at higher education institutions in South Africa, with a specific focus on the legal and policy protections afforded to them. Xenophobia is a national as well as a global phenomenon and manifests in South African society. Although much research has been conducted on xenophobia in general, the position of the non-national academic in relation to xenophobia has not been extensively investigated. I this thesis, therefore, I highlight first, the need to examine the non-national academics' experience of xenophobia within the higher education space and secondly, the legislative and policy protections available to this category of employee. Since xenophobia is a type of discrimination and is linked to issues of equality, I examine xenophobia against the background of existing scholarship on equality and discrimination. The theoretical approach to the study is located in the theories of Tajfel & Turner as well as Harris which focus on xenophobia and social exclusion. The conclusions drawn from the research are that xenophobia against non-national academics in the higher education context does exist and manifests in a covert or symbolic way instead of in a violent manner. While there exist international treaties, national laws, institutional policies, and case law which cater for the rights of non-national academics to some extent, these do not provide adequate legal protection for this group. I recommend the passing of xenophobic-specific legislation to enhance enforcement and accountability and for higher education institutions to specifically provide for xenophobia in its policies. I also conclude that non-national academics would best benefit from the notion of transformative substantive equality since this notion speaks to changes being made to structures within institutions to achieve equality.
  • ItemOpen Access
    The requirement of 'fit and proper' for the legal profession: A South African perspective
    (University of the Free State, 2022) Bloem, Martie; Van Marle, K.
    The research problem of this study is that our understanding and interpretation of the 'fit and proper' requirement for admission to legal practice is too superficial and one-dimensional to allow for a more diverse, broader and critical thinking needed to enable transformation of the legal profession. The question that originates from the research problem and guides this study is what the meaning, reason, purpose and importance of the current 'fit and proper' requirement is, and what it rather should be. The purpose of this research is to indicate that the requirement of 'fit and proper' for a person to be admitted to legal practice is closely related to the role of the legal professional in society and should therefore be directly linked to objectives such as public interest, access to justice and social justice if we are serious about transformation of the legal culture of South Africa. My proposal is that 'fit and proper' should be a continuous responsibility of all legal professionals instead of a prerequisite only required from legal practitioners for admission to legal practice. Furthermore, that the meaning of the concept should be informed by variable values and principles in line with the Constitution and not mere compliance with fixed rules of conduct or a specific test. Every chapter of this study indicates that changing the legal culture will necessarily entail an honest reconsideration and admission of the role and responsibility of legal professionals in their contribution to the current vision of the law and the manner in which law is practiced. What would be needed for this change is that at least the majority of legal professionals understand their responsibility in changing the traditional approach to the law in order for it to respond to the needs of a multicultural society. In my opinion, the role of legal professionals in this process is twofold: in their capacity of being professionals and therefore having an obligation to serve the public interest; and in their capacity as members of the community, having a responsibility of being self-conscious and aware of their complicity. The suggestion is that we should discontinue the practice of finding that a person is 'fit and proper' to be admitted to legal practice and rather expect of all legal professionals to continuously reconsider the role they play in society. Reimagining our understanding of 'fit and proper' requires an endless contribution to the collective effort of thoughtful thinking about the law in an attempt to imagine justice into reality and thereby becoming 'fit and proper'. A shift in focus of legal education may be the starting point or even the solution to the research problem that our thinking about the law, the role of the legal practitioner and interpretation of 'fit and proper' is too superficial to allow for transformation. The recommendation is that the focus of legal education must be adapted to enable law graduates to be critical of both the law and the political state in order to serve the law and the aims of justice and not only on delivering practically skilled law graduates.
  • ItemOpen Access
    Realising access to contraception for adolescents in Nigeria: a human rights analysis
    (University of the Free State, 2010-05) Durojaye, Ebenezer Tope; Ngwena, Charles; Cook, Rebecca
    English: This study is an analysis of whether laws and policies made by the Nigerian government relating to access to contraception for adolescents are consistent with Nigeria's obligations under international human rights law. Adolescents, especially female adolescents, encounter challenges regarding their sexual health needs. For instance, more than half of those living with HIV in the country are female adolescents. Teenage pregnancy and the incidence of unwanted pregnancy are rife, leading to high cases of unsafe abortion. Nigeria is said to have one of the worst cases of unsafe abortion in the region. Moreover, the maternal mortality rate in Nigeria, estimated at about 1,000 deaths per 100, 000 live births, is one of the highest in the region. Most of the deaths occurring from pregnancy-related complications are among young women. Yet contraceptive use among this group is very low. Some of the factors restricting access to contraceptive information and services for adolescents include socio-cultural factors such as emphasis on chastity for female adolescents, negative attitudes on the part of health care providers and inconsistencies in laws and policies. Nigeria has ratified international and regional human rights instruments, including consensus statements, which obligate the government to take necessary steps and measures in realising access to contraceptive services for adolescents, especially female adolescents in the country. Although Nigeria is not wanting in laws and policies relating to access to contraception for adolescents, gaps exist in these laws and policies as most of them do not specifically address the issue of adolescents' autonomy to seek contraceptive services, nor have they specifically addressed the needs of female adolescents. Therefore, the study is premised on the fact that, since female adolescents, compared with their male counterparts are more susceptible to sexual and reproductive ill health in Nigeria, it is necessary to pay more attention to their health needs than that of other groups in the country. Drawing from the experiences of feminist scholars, the study proposes that in analysing Nigeria's laws and policies relating to access to contraception for adolescents, the female adolescent question should be asked to ascertain how the interest of this group has been adequately catered for. The study concludes by arguing that the Nigerian government has not demonstrated adequate political will in implementing existing laws and policies to ensure access to contraception for female adolescents. The government will need to embark on law reforms and awareness campaigns to remove barriers that restrict access to contraception for female adolescents. In addition, Nigerian courts will need to be more proactive in their decisions and adopt a purposive approach to interpreting the laws of the country to advance access to contraception to female adolescents. In doing this, Nigerian courts may need to ask the female adolescent question, which implies that decisions by Nigerian courts on cases bordering on the sexual health of adolescents must always reflect the lived experiences of female adolescents.
  • ItemOpen Access
    'n Kritiese ondersoek na societas, natuurreg en menseregte in die post-Thomistiese regsleer van Antonio Rosmini (1797-1855)
    (University of the Free State, 2007) Swartz, Nico Patrick; Raath, A. W. G.
    English: Societas According to Rosmini, society is not a man-made entity or creation, but rather a theistic institution, since it originates from the will of God. Accordingly, human society is founded in the order of God’s Creation. The freedom of the form of human society is realised in a variety of differentiated social forms, namely civil societas, domestic societas and ecclesiastical societas. Rosmini states that social forms are not reducable to simply civil societas, but include human social togetherness. Neither can one social form derive authority from the next. Unlike Thomas Aquinas who models the principles subsidiarity on the principles of hierarchy, autonomy and intervention, Rosmini emphasises the independence of each social form and in doing so he achieves a well-rounded doctrine of human society and social forms. He is of the opinion that the various social forms are closely bound, which means that a human society cannot be discussed without taking domestic societas, ecclesiastical societas and civil societas into account. Each social form forms part of an independent freedom and fulfils a responsibility before God. Rosmini endorses the Thomistic subsidiary principle to the extent that civil societas merely lends assistance and support to, for instance, domestic societas, should the latter community be unable to preserve its interests. On this basis, civil societas may not interfere with the interests of the other two forms. According to Rosmini, every society has a moral substructure which serves as a basis for the rights and obligations necessary for the maintenance of natural law. Social justice is expressed in society by means of the principles of goodwill. Rosmini relates to classical viewpoints where societies are bound to the fundamental moral principles of the central commandment of love, since all human rights are based on fundamental duty. On these grounds, Rosmini presents a platform for cultural discourse and ethical involvement across ideological boundaries insomuch as he is of the opinion that society as a whole stands beneath the general revelation of God. Natural law In Rosmini’s explicit stance on natural law he maintains a primarily Thomistic opinion which originates from his perspective of Divine Providence. Natural law is a manifestation of practical rationality. For example, to come to the knowledge of human rights, human nature and reasoning must be used as guidelines. As such, Rosmini upholds a paradigmatic perspective of natural law where there is a close correlation between natural law and the maintenance of justice in human society. Natural law and justice culminate in the relationship between rights and duties. Rosmini holds that natural law and justice are built upon the maintenance of important moral duties. On this basis, moral values have significant constitutional implications which give expression to the universal principle of love. In this way, natural law forms the foundation of human rights. Human Rights Rosmini’s point of view regarding human rights rests principally on his natural jurisprudence. His focus on justice in human society supports his standpoint on human rights, the jurisprudence of which originates from the Scriptural principle of love towards God and one’s neighbour. On this basis, Rosmini’s stance regarding human rights is closely linked to his theocentric idea of man’s personal relationship with God. His human rights teachings embrace both individual and social rights, the latter being reflected in social, ecclesiastical and domestic societas. Rosmini holds that social justice can only be ensured by the balanced maintenance of all natural rights on both individual and social levels. He is of the opinion that the natural rights of individuals in social entities originate most deeply in the human cry to God. Accordingly, Rosmini’s human rights teachings can be illustrated by his points of view regarding human dignity.
  • ItemOpen Access
    The constitutional framework for broad-based black economic empowerment
    (University of the Free State, 2010) Janse van Rensburg, Adri; Pretorius, J. L.
    The negative impact of the apartheid regime’s policies on the social, political and economic conditions of the majority of the population is well established and persists into the present day South Africa. The South African Constitution acknowledges this negative legacy, but also contains a vision of the type of society it envisages for South Africa. The inclusion of values, principles and rights on which this new society is based does not, by virtue of its design, erase all the consequences of the previous discriminatory policies. Simply removing discriminatory legislation and practices cannot alleviate the injustice and poverty that resulted from 40 years of oppressive legislation and government policies. Implicit in this constitutional vision are remedial and restitutionary measures for the achievement of the constitutional goal of a free, prosperous and egalitarian South African society. Illustrative of this fundamental commitment, several constitutional provisions, directly or indirectly, sanction remedial measures to address remaining injustices. Different types of remedial measures are envisaged, namely affirmative action programmes, a government policy of preferential procurement, and Black Economic Empowerment. The constitutional imperative for policy tools to transform the South African economy in particular, by means of black economic empowerment is therefore clear. In this study the legacy of apartheid, with specific reference to the economic aspect thereof, is researched. From this it becomes clear that transformation in the way economic resources are divided is necessary. The enactment of specific legislation dealing with the subject resulted from the recognition of the need for regulatory intervention to give momentum to the process of reform. The B-BBEE Act and its Codes of Good Practice provide the foundation for the drafting and implementing of the BBBEE programme. The B-BBEE programme’s operation is analysed in order to draw conclusions on the constitutionality thereof. Within the framework of the Constitution, several provisions empower the state to adopt remedial measures to correct systemic injustice. The most apparent of these is the right to equality in section 9. It provides that everyone is equal before the law and has the right to equal protection and benefit of the law and entrenches the right not to be discriminated against, either directly or indirectly, on a number of specifically enumerated and analogous grounds. Section 9(2) makes specific provision for remedial measures, not as an exception to the equality guarantee, but rather an extension thereof — a restitutionary equality conception. In the Preamble to the B-BBEE Act it is stated that one of the objectives with the Act is to “promote the achievement of the constitutional right to equality”. The right to equality therefore occupies a central place in any constitutional discussion on the B-BBEE programme. The position on the constitutional validity of affirmative action measures, and therefore also the B-BBEE programme, is currently governed by the Constitutional Court’s decision in Minister of Finance v Van Heerden, where the Court formulated three elements for a valid section 9(2) measure. The Court’s approach in the Van Heerden case was therefore analysed in order to make a determination of the constitutionality of black economic empowerment measures. However, in order to place B-BBEE in its constitutional context the totality of constitutional provisions which touch on the programme, that is both mandating and limiting provisions, was considered. The practical operation of the programme was analysed and that information was used to draw conclusions on the constitutionality of the programme when placed in the framework provided by the relevant constitutional provisions. Recommendations were also offered which could address some of the problematic aspects of the programme identified.
  • ItemOpen Access
    Transitional justice: framing a model for Eritrea
    (University of the Free State, 2008-05) Mekonnen, Daniel Rezene; Pretorius, J. Loot
    English: Since its independence in 1991, Eritrea has seen egregious violations of human rights and humanitarian law. This study examines the perpetration of international crimes in Eritrea between 24 May 1991 and 30 May 2008. A factual and legal analysis of the major incidents and events that took place during the above period of time reveals that crimes against humanity, war crimes and crimes of aggression have been perpetrated in Eritrea in an alarming manner affecting hundreds of thousands of people. In most cases, human rights violations have been perpetrated under a clear and premeditated government plan of persecution and repression of political dissent and certain religious convictions. Although some of the incidents discussed in this work appear to be sporadic events occurring only in a specified time and with a specific objective, most of the violations portray a clear, coherent, systematic and comprehensive government policy of repression. The widespread and systematic violation of human rights in Eritrea constitutes crimes against humanity as defined by the relevant provisions of international law. There are also violations perpetrated in the context of the 1996 Eritrea-Yemen border conflict, the 1998-2000 Eritrea-Ethiopia border conflict, as well as other incidents of internal and international armed conflicts. These cases portray categories of crimes perpetrated with political motive of a cross-country nature. It is concluded that a certain group of highranking government officials can be tentatively identified as the most responsible perpetrators and accordingly they bear individual criminal responsibility for serious violations of international law since 1991. To end the culture of impunity, this study proposes that international criminal justice, administered by the International Criminal Court, foreign municipal courts, or national or mixed tribunals, should be instituted. However, in the event of a negotiated and peaceful political transition, conditional amnesty administered by a democratically constituted truth and reconciliation commission is also regarded as an acceptable option.
  • ItemOpen Access
    Law and federal-republicanism: Samuel Rutherford’s quest for a constitutional model
    (University of the Free State, 2014-06) De Freitas, Shaun Alberto; Raath, A. W. G.
    English: Accompanying early seventeenth-century Europe were challenges related to the limitation of political power, civic participation in public affairs and the attainment of the public interest. Absolute rule and the absence of the individual as well as of the collective in political activity required urgent attention. The republican quest towards a much-needed rearrangement of the guardians and executors of political power as well as a more inclusive role to be played by the individual and the collective was accompanied by a view on the law as something beyond merely law enforced by the governing authorities. At the time, England and Scotland served as a scholarly hub where constitutionalism was vigorously addressed. The seventeenth-century Scottish theorist Samuel Rutherford contributed towards the formulation of a constitutional model not only suited to the context of his time but which also has overlapping value for contemporary theories on constitutionalism. Rutherford accomplishes this with special emphasis firstly on an understanding of the concept of republicanism, an understanding that was coupled with a rich legacy spanning many centuries and including Ancient Hebrew, Classical Greek and Roman, Patristic, Medieval, Canonist and Scholastic thinking. Secondly, Rutherford argues for the importance of the Rule of Law idea, together with the idea of the covenant. The encompassing framework within which a constitutional model was to be sought was against the background of the view that the law transcends the laws applied by the civil authorities, mere positivism and pragmatism. Rutherford reiterates the Ciceronian idea that the law is something more than Niccolό Machiavelli and Jean Bodin’s command of the ruler. Thirdly, Rutherford’s constitutionalist thinking also includes valuable insights pertaining to the protection and maintenance of religion and of the conscience. This Rutherford does in reaction to the oppression of religion by the authorities and a more enlightened development in seventeenth-century Britain by which the emphasis was placed on the ‘inner light’ within man, and which was supported by influential theorists such as Grotius, John Milton and John Locke. Emanating from this study are also enduring insights related to constitutionalism such as the importance of social contractarianism; the centrality and superiority of natural or moral law; the mutual relationship between rights and duties; every individual’s participation and duty towards a common good, which transcends mere self-interest; the ruler’s accountability primarily before the moral law; the office of the ruling power and its universalist and immutable normative substance; and activism against physical and psychological oppression.
  • ItemOpen Access
    The constitutionality of categorical and conditional restrictions on harmful expression related to group identity
    (University of the Free State, 2014-01) Marais, Maria Elizabeth; Pretorius, J. L.
    English: The theories of truth and the marketplace of ideas, of democracy, and of human dignity underlie the constitutional protection of freedom of expression and simultaneously set boundaries with regard to such protection. The value of expression in terms of these theories firstly determines the scope of protection afforded to particular forms and incidences of expression. There exists an inherent tension in the appeal of each of the values and interests that is involved. Freedom of expression is central to the development of human personality, but may also harm inherent human dignity. The response to discriminatory expression may eventually promote equality. Free expression may be instrumental to the increase in knowledge and to the maintenance of democracy, but may also discourage target groups from participating in the marketing of ideas and in the democratic process. Secondly, the extent to which a discriminatory statement or expressive conduct serves the values and interests of knowledge, democracy and dignity is a relevant consideration in the context of proportionality analyses. It determines the weight to be assigned to the right to freedom of expression relative to other rights or interests that are involved. The Constitution, in terms of section 16(2)(c), categorically excludes, from constitutional protection, “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. “Hate speech” on these grounds constitutes a proven threat to constitutional democracy. Expression of this nature should be criminalised. Circumstances may exist where “hate speech” on other grounds poses a similar threat and should likewise be criminalised. Current atrocities in South Africa related to homosexuality and nationality constitute such circumstances. This approach is in accordance with South Africa’s obligations in terms of international agreements. Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act categorically prohibits a narrowly defined field of expression, including expression under section 16(2)(c) of the Constitution. The prohibition does not criminalise expression and does not apply to bona fide engagement in expression stipulated in terms of section 16(1) of the Constitution. Within the limited field that remains, it prohibits expression related to any prohibited ground that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful, or to incite harm or promote or propagate hatred. The prohibition will be constitutional if it can be accepted that the expression will, in all given circumstances, constitute or promote unfair discrimination. Considerations in the South African context of the values that inform the protection as well as the restriction of expression, and of international obligations, lead to a positive conclusion in this respect. Of essential importance is the fact that the prohibition does not stifle debate about issues, even if statements relevant to the debate offend people with reference to their group identity. Section 6 of the Act prohibits unfair discrimination, subject to a fairness analysis. It is often not possible to determine whether the effect of discriminatory expression in the broad societal context is indeed detrimental. In the media context, the unequal balance of power in given circumstances reinforces the risk that inequality will be promoted. In the determination of fairness, care should be taken not to restrict expression without sufficient context-related indications of disadvantage. At the same time, the obligation to prohibit unfair discrimination, and the categorical restriction in terms of section 10, may not be disregarded. In the light of section 192 of the Constitution, these considerations are particularly significant with respect to broadcasting. The present broadcasting codes lack the necessary related guidelines and should be amended accordingly.
  • ItemOpen Access
    'Disabled people' and the search for equality in the workplace :. an appraisal of equality models from a comparative perspective
    (University of the Free State, 2010-12) Ngwena, Charles Gideon.; Pretorius, J. L.
    English: Disabled people constitute a historically disadvantaged and marginalized group that experiences discrimination in the workplace among other socio-economic sectors. In this thesis, my focus is on searching for an inclusive type of equality that could inform the interpretation and application the equality clause in the South African Constitution. My aim is neither to arrive at a mathematically constructed abstract type of equality, nor to produce a blueprint of equality that puts finality on the debate on equality. Rather, it is to engage with equality discursively with a view to contributing towards an ongoing development of a juridical as well as philosophical path for constructing the normative architecture of a type of equality that is more responsive to the equality needs of disabled people. The spotlight is on developing a type of equality that is normatively inclusive and transformative as to be capable of sufficiently meeting the quest for political, and more crucially, economic recognition of disabled people. I use a repertoire of analytical techniques to explore and appraise the inclusiveness and responsiveness of contemporary approaches to equality. At a more general level, the discourse employs comparative analysis. However, whilst comparative analysis in this thesis includes comparing and contrasting the equality jurisprudence of different jurisdictions, and in this instance, comparing and contrasting South Africa with Canada and the United States, it is, nonetheless, a relatively small part of my comparative discourse. It is not the primary sense in which the thesis develops a comparative discourse. The greater part of my discourse employs a comparative approach to mean comparing and contrasting the underpinning moral compasses of formal equality and substantive equality with a view to revealing the capacities of each type of equality to be responsive to the equality aspirations of disabled people. Over and above comparative analysis, I use, in the main, the historicity of apartheid, the social model of disability, and feminist theory and practices as analytical techniques for interrogating the responsiveness of notions of formal equality and substantive equality. From insights drawn mainly from the social model of disability and feminism, I construct disability method as a syncretic and legal method for interrogating the normative sufficiency of equality laws and praxis. Disability method is the study’s principal interpretive method for ensuring that the appraisal of pertinent laws, policies or practices is always conscious of the status of disabled people as a disadvantaged and vulnerable historical community, and the imperative of transforming erstwhile culturally, and even more crucially, economically oppressive norms. I contend throughout the study that law does not carry inherently neutral values that, as a matter of course, allow for searching for alternative paradigms of equality. Ultimately, it is the social construction of disability that holds the key to interrogating equality norms in a serious manner and not merely restating what the legislature and the judiciary proclaim about disability and equality. In this sense, by way of clarifying the methodological and philosophical orientation of this study, it bears stressing that the analytical approach that it adopts differs markedly from conventional legal discourses that only use an ‘internal critique’, as it were, to critically evaluate legal norms by using norms derived from law in order to determine whether the law is living up to the standards which it professes to hold and whether the justice promised by those standards is being dispensed evenly across all social groups. Though ‘internal critique’ is part of how some of the arguments in this study are framed, it is only a small part. The greater part of my equality discourse derives from external critique. It derives from appraising the law using ethical or social values that are external to the law but which I argue ought to shape the law. Using disability method, and drawing from the thesis of a heterogeneous civic public sphere, I situate the normative ethical framework for substantive equality within a type of participatory democracy in which equality is constructed dialogically and not unilaterally or hegemonically. I treat equality as a component of democratic ethics that result not from a given centre but from an egalitarian dialogue between disabled people and enabled people. I argue for inclusive heterogeneous equality as the operative equality template for eradicating disablism in an imagined participatory democracy in which respect for pluralism and the eradication of dominance and subordination among social groups are core foundational ethics.
  • ItemOpen Access
    African philosophical values and constitutionalism: a feminist perspective on Ubuntu as a constitutional value
    (University of the Free State, 2008) Keevy, Ilze; Raath, A. W. G.
    English: Since 1995 the South African Constitutional Court has contended that it would no longer entertain only Western thought and legal thinking but also African law and legal thinking as the values of all sections of society must be taken into account in South Africa’s open and democratic society. The Court acknowledged ubuntu as part of South Africa’s jurisprudence and fused Western and African jurisprudence into a new South African “rainbow” jurisprudence. But beneath this miraculous fusion lies a volatile philosophical relationship of two ancient patriarchal philosophies which resulted in the erosion of African values and innumerable injustices against the African Other. Like Greek philosophy, Western philosophy has always been plagued by philosophical prejudice towards women, slaves and barbarians. Racism, however, only entered the equation of Western philosophy when the West had to justify their trade in twenty million African men, women and children as African chattel slaves in the seventeenth century. This crime against humanity was justified in the name of Christianity by philosophers and clergy alike. Whilst the Enlightenment philosophers proclaimed human equality and individual liberties in the eighteenth century they also fuelled a “new racism” which stereotyped Africans as inferior and subhuman. Not only did the Otherness of Africans result in racial segregation in the United States of America in 1883, it also legitimised Western colonisation of the “Dark Continent”. Under the banner of the cross, Western colonial powers embarked on their Christian civilising mission of the African continent: destroying African trade patterns, ancestral lands, self government, tribal systems, African law, cultures, belief systems and values. It was, however, not these factors, the colonial genocides in Congo Free State and German South-West Africa or Apartheid South Africa’s crime against humanity which resulted in the lingering inferiority complex Africans experience on the African continent, but the most destructive weapon wielded by the West: the “cultural bomb”, which eroded African values. The publication of Temple’s Bantu Philosophy in 1945 did not only bring proof that traditional Africans have a collective philosophy but also sparked a heated international and national philosophical debate. In an attempt to structure the discourse on African philosophy Oruka introduced his six trends in African philosophy. According to Oruka, ethnophilosophy (or ubuntu) represents the collective philosophy, or ubuntu, of either an African community or Africa as a whole; sage philosophy illustrates that rational thought prevails in philosophical sages; political philosophy contains the liberation philosophies of African leaders who envisaged the rekindling of eroded traditional African values; Negritude is described as the “sum total of African values”; professional African philosophy is African philosophy in the strict sense produced by African philosophers; the hermeneutical approach attempts to reconstruct African reality in post-colonial Africa; and the literary trend illustrates the devastating effect of Western subjugation of the African Other. The debate on African philosophy illustrates that there is no homogenous way of African thinking and that professional African philosophers, modern Africans, African theologians and African feminists reject traditional African modes of thought. The Constitutional Court claims ubuntu values are in line with the Constitution in general and the Bill of Rights in particular but this study brings evidence to the contrary. Not only are ubuntu values represented in traditional Africa’s closed, strong communitarian societies unique and not universal, but ubuntu “moral philosophy” proves to be a religious philosophy. Whilst sec. 15(1) of the Constitution guarantees freedom of religion one has to question why the Court entertains a religious philosophy such as ubuntu in its deliberations and not other religious philosophies. The Constitutional Court, African Renaissance, the Moral Regeneration Movement, the Ubuntu Pledge, the Heartlines Project and other programmes throughout South Africa aspire to revive ubuntu’s eroded traditional African values. African feminists, African theologians and modern Africans reveal that ubuntu fuels inequalities, sexism and xenophobia and that ubuntu does not comply with sec. 39(1) of the Constitution. Ubuntu is neither in line with international or regional human rights and gender mechanisms nor “the Constitution in general and the Bill of Rights in particular”.