Question

Explain the concepts of transformative constitutionalism and transformative justice with specific reference to the transformative role of 1993 (interim) and 1996 (final) constitutions

Answer 1

Answer:

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.

Answer 2

The concept of transformative constitutionalism and transformative justice are explained as follows.

• Transformaitve constitutionalism is the process of using the constitution to bring about a comprehensive change in social scale. It is done by a more of non-violent political means. Transformative role of 1993 focused on 'to reverse the socializing of prejudice, discrimination and power'.
• Transformative justice on a generalized scale means its a general physiological strategy in response to conflicts and fights. It works on a scale beyond the criminal judiciary system.