explain the concepts of transformative constitutionalism and transformative justice with specific reference to the transformative role of 1993( interim) and 1996 (final) constitution
Answers
Transformative constitutionalism, popularised in the context of South Africa's transition from apartheid to constitutional democracy, arguably offers an antidote for failed constitutionalism and weak protection of fundamental rights and freedoms in emergent democracies in Africa. This article examines the idea of transformative constitutionalism and its implications for the adjudication of fundamental rights and freedoms. It recognises that past failures of constitutionalism in Africa, to a significant degree entailed state abuses of fundamental rights and the corresponding inability of the courts to uphold these rights. Using examples of adjudication of rights in the post-2010 period in Kenya and post-apartheid era in South Africa, the article argues that, taken as a model for constitutionalism in Africa, transformative constitutionalism offers hope for increased protection of fundamental rights and freedoms. The article analyses the demands of transformative constitutionalism on the judicial adjudication of rights, and concludes that the concept demands more from judges than has traditionally been understood in the two legal systems.
The concept of transformative constitutionalism and transformative justice with specific reference to the transformative role of 1993(interim) and 1996 constitution has been described below:
- On the supremacy of the constitution for the last 20 years south Africa's transition from apart to its democracy constitution.
- Here system carries a agenda to espouses social and substantive justice in economic, political, social realities in the country and this agenda still remains there as a fundamental epitomes .
- The purpose is to reflect the antidote for failed constitutionalism and freedom and fundamental rights adjudication which was implicated .
- In 1994 with context to institutional and normative framework changes occurs concerning transformation of constitution.
- A TC project is enabled to clarify a transformative agenda, embedding major institutional changes.