The Evolution of Constitutionalism in Conqueror South Africa. Was Jan Smuts Right? An Ubu-ntu Response

Abstract

Diphetogo tseo di tlisitsego boipuso mafatsheng a Afrika gase tsa fetola nyenyefatso ya bothopja le bokgoba bjo bo gapeleditsweng ke mafatshe a Bodikela bja mose wa mawatle. Sebakwa ke sona se taodisong ye. Re ema ka la gore magoro kamoka a bophelo a tshwanetse go mothofatswa, botho ebe bjona motheo wa phedisano magereng ga batho kamoka “Afrika-borwa” le lefatsheng ka bophara. Moono wo o tshwanetse go ba karolo ya mananego kamoka a thuto go tloga thutong ya motheo go fihlela thutong tje phagamego. The ethically unjustified violence of Western colonisation continues in the economic and epistemic spheres in Africa, despite the reluctant concession by the Western coloniser to political independence. The constitutional histories of politically independent Africa are mainly the reaffirmation of the imposed domestication of the legal paradigm of the Western colonial conqueror. This is constitutionalism. With particular reference to conqueror South Africa, I take the “Union of South Africa” as the commencement of constitutionalism. General Smuts, later Prime Minister, was among three Afrikaner Generals engaged in the founding and the development of the “Union of South Africa.” He is selected here for his claim that the White colonial conquerors from Western Europe are endowed with superior intelligence. This can be used to continue the subjugation of indigenous conquered peoples into an indefinitely long future. This article challenges this claim because it is ethically untenable and fundamentally at odds with constitution-ness underlying the ubu-ntu legal paradigm. Given the evolution of constitutionalism in conqueror South Africa until the constitution of 1996, was Smuts right in his claim? In addition to the ethical indefensibility of this claim, it is argued further that the “epistemic decolonial turn” overlooks “decolonisation” as argued by Africans, and disregards humanisation—mothofatso—as the fundamental counter to the dehumanisation project of colonialism.