SIBANDA

Question 1

1.) Name the two approaches to constitutionalism that Sibanda discusses in his article, and indicate
which approach he sees as the ‘preferred approach’ within South African constitutional discourse
(2).

Answer 1

The orthodox or liberal democratic approach to constitutionalism:
• This approach views South Africa’s post-apartheid era as a transformation from autocratic
rule to a stable liberal democracy;
• It emphasizes the success of political transformation and the limitations placed on
governmental power.
The transformative approach to constitutionalism:
• This approach highlights the significance of political transformation in the democratic era
and the Constitution’s pledge to “improve the lives of all citizens”;
• It underscores that South Africa continues to face issues of rising income inequality and
poverty, pointing toward the need for political and socio-economic change.
• Sibanda prefers the transformative approach to constitutionalism.

Question 2

2.) What is ultimately Sibanda’s argument regarding the relationship between liberal and
transformative constitutionalism? (2)

Answer 2

• The two approaches differ in their core understanding of constitutionalism.
• Sibanda contends that because South Africa has adopted a liberal democratic approach, the
definition of constitutionalism has become too narrow, limiting transformative
constitutionalism’s ability to effectively address poverty.
• He argues that transformative constitutionalism’s connection to liberal constitutionalism is
constraining.

Question 3

3.) What is the ‘main challenge’ of transformative constitutionalism, according to Sibanda? (2)

Answer 3

• The main challenge is that the Constitution is interpreted and applied in ways that hinder its
progressive, egalitarian visions of social and political transformation.
• The lingering effects of apartheid must be addressed, and transformative constitutionalism’s
primary challenge is the socio-economic issue of poverty eradication in South Africa.

Question 4

4.) Describe Fanon’s stance on ‘national consciousness’ (4).

Answer 4

• Fanon is critical of a top-down approach to fostering national consciousness, which he views
as a fragile construct in a post-independent state rather than a true, shared national identity.
• He argues that the push for nation-building is largely a reaction to colonialism rather than a
genuine collective sentiment felt by communities

Question 5

5.) How does Sibanda use Fanon’s stance on national consciousness to draw an analogy to a
problem within transformative constitutionalism? (4)

Answer 5

Fanon:
• Discusses national consciousness as a crucial moral and political foundation for building a
new nation and a key part of the decolonization process.
• Criticizes an elite-driven project (often led by ruling political parties) of establishing
national consciousness.
• Argues that what is created instead of true national consciousness is a national identity that
reflects various efforts to overcome colonial oppression.
Sibanda:
• Draws a parallel with transformative constitutionalism, suggesting it represents a form of
social and political consciousness in viewing the South African constitutional project.
• If there is a shared transformative consciousness, this value-driven, future-oriented
interpretive approach strengthens the potential for a genuinely transformed society within
the bounds of the Constitution.
• However, in a legal and political environment where transformation is contested, the
reliance on the “right” kind of interpretation could be a pitfall, as different political
ideologies may weaken transformative constitutionalism’s transformative objectives, risking
them being reduced to mere rhetoric.

Question 6

6.) If transformative constitutionalism fundamentally relies on interpretive practices, which could
be weakened by a conservative legal culture, what remains, according to Sibanda, when this
transformative vision of the Constitution is eroded? (3)

Answer 6

• Toward the end of his article, Sibanda suggests that for South African constitutionalism to
1. achieve true transformation, substantial progress is required in three main areas:
Establishing a liberal democratic constitutional system that emphasizes procedural
democracy through:
◦ Free and fair elections;
2. ◦ Maintaining a balance of institutional power among government branches.
Transformative constitutionalism, with its limited provisions, can be a tool to fundamentally
reconstruct South Africa and combat poverty.
3. Transformative constitutionalism can also be interpreted as an extension of the liberal
democratic approach