#20 – Sindiso MnisiWeeks and the Case for an Alter-Native Constitutionalism in South Africa

Today, Fabio talks to Sindiso MnisiWeeks.

Sindiso is Associate Professor in Legal Studies and Political Science at the University of Massachusetts Amherst and Adjunct Associate Professor in Public Law at the University of Cape Town (UCT). She is currently finishing a monograph titled “Alter-Native Constitutionalism: Common-ing ‘Common’ Law, Transforming Property in South Africa”.

Sindiso brings a different perspective to debate on the crisis of South African democracy that Fabio had with Dee Smythe, Michelle LeRoux, and Dennis Davis in PALcast's last episode.

As listeners may remember, those guests contended state capture is at the center of South Africa's democratic crisis, whose main “victim” is the “transformative” spirit of that country's constitution even more than the abstract scheme of liberal-democratic governance based on separation of powers and the rule of law.

Sindiso agrees that "state capture” is there and that it compromises the efficacy of the South African state and its ability to meet its constitutional promises. But she argues that South African constitutionalism has a deeper democratic deficit, which derives from colonialism and the way it deprived natives South African from their own laws. This continues through the current constitution, whose interpretation has been driven by understandings of things like property that are “uncommon” to most in the country.

Building on this insight, Sindiso argues that rather than structuring and sustaining democracy from the top down, by putting together and protecting an institutional framework typical of liberal-democracy and constitutionalism, and then socializing the people into those; we should do it from the ground up, by taking seriously “the normative conceptions and convictions of ordinary South Africans”. This is what she calls an “alter-native constitutionalism”.

In the interview, Fabio and Sindiso unpack this notion and discuss how it relates to liberal-democracy and constitutionalism and what would mean, in practice, to take seriously those “normative conceptions and convictions”.

They also discuss how to reconcile her argument with the finding that traditional authority and legality have been historically misused or abused in South Africa. And they finish with a conversation about what she is expecting from the upcoming elections in that country.