Download This PaperThe Dangers of Transplanting Transformative Constitutionalism into Namibia
Printed in an earlier version in Namibia Law Journal (2019)
in: Governing Universalism or a Variant of Apartheid Particularism? Global Jurisprudential Apartheid and Decolonisation as 21St Century Questions (Tapiwa V. Warikandwa et al. eds., 2020, Forthcoming)
25 Pages Posted: 28 Apr 2020
Date Written: April 2, 2020
Abstract
In the seminal article in which he coined the phrase ‘transformative constitutionalism’, Karl Klare did not merely ask whether transformative constitutionalism would be a viable project for South African lawyers only; he also wondered whether transformative constitutionalism would work “within other legal regimes”, such as Namibian law. Regrettably, questions of constitutionalism remain confined to research by very few academics and judges. In 2016, however, Nico Horn sparked off the much-needed debate on transformative constitutionalism in Namibia by publishing a book on that topic.
Twenty years earlier in South Africa, the then Chief Justice Pius Langa asserted that transformative constitutionalism “places the Constitutional dream at the very heart of legal education.” Today, the Council on Higher Education (CHE) requires all law faculties in South Africa to have a component on transformative constitutionalism. In practical terms, this implies that, if a law faculty does not include transformative constitutionalism throughout its curriculum, the CHE may withdraw the accreditation of that law faculty’s LL.B. program.
While the CHE probably meant well when it made transformative constitutionalism compulsory, the reality is that this move impoverishes legal education in South Africa because transformative constitutionalism works like a Trojan Horse designed to introduce into South Africa an ideological project driven by a group of influential theorists in the United States. Namibia must not make the same mistake.
In this chapter, I urge Namibian educators to avoid the short-sightedness of the CHE and to refrain from transplanting into the country an ideological project that endangers the quality of legal education. Through the four substantive sections of this chapter, I support this urgent plea by showing that great dangers await Namibia if it buys that ideological project. In the first section, I discuss how transformative constitutionalism would trap Namibia’s idea of ‘transformation’ into a particular American style of left-wing politics. In the second section, I move on to demonstrate how talk of transformative constitution will confuse lawyers, judges, and law students about what this general principle exactly covers. And, in the next section, I explain that confusion reigns precisely because many lawyers and stakeholders in South Africa, chiefly the CHE, do not really understand transformative constitutionalism. More specifically, the fourth part backs up my main thesis by focusing on the Namibian legal context and explaining why that context should discourage lawyers in Namibia from emulating the South African obsession with transformative constitutionalism. Finally, in the conclusion, I reveal the greatest danger that legal education in Namibia faces if it embraces transformative constitutionalism.
Lawyers, judges, law students, learners and experts in other disciplines, and the general public in Namibia must enter this debate about transformative constitutionalism. This ‘transformation-oriented’ constitutional project deals with identifying, interpreting, and articulating the core values that define Namibia as a nation. Ironically, failing to grapple with this project may lead to a situation whereby educators in Namibia adopt the project without fully comprehending what it means and what it implies.
Suggested Citation: Suggested Citation