Mobilizing constitutional identity: Transformative constitutionalism and the threat of illiberalism in South Africa

Abstract South Africa’s post-apartheid Constitution is celebrated for its extensive embrace of rights, including justiciable social and economic rights. The focus by academics and other commentators, as well as by Justices of the Constitutional Court, on the transformative goals of this Constitution and the jurisprudence of the Constitutional Court has made transformative constitutionalism central to South Africa’s constitutional identity. This identity is increasingly at odds with South Africa’s competing national identities. This is in part the result of the tensions inherent in the mobilization of a transformative constitutional identity and the limits of courts to foster social change. While the jurisprudence of the courts may promote a transformative constitutional identity, the gap between constitutional promise and increasing social inequality has brought increasing criticism of the Constitution as the product of the democratic transition in South Africa. The resulting dissonance is producing tensions within South Africa’s constitutional identity and raises the question of whether the post-liberal Constitution adopted in 1996 will be able to sustain its transformative identity or whether democratic disappointment will facilitate illiberal political forces.