While the idea of transformative constitutionalism first arose in the context of South Africa’s democratic transition to address questions related to the future of private law and old order legal personnel and institutions in the new constitutional dispensation, it has gained a much broader meaning both in South Africa and around the globe in the new millennium. This contribution reflects on the multiple meanings, uses, and criticisms of transformative constitutionalism and its suitability as a model for African constitutionalism more generally. Given contemporary challenges to constitutionalism, it argues that ensuring the continued functioning of democracy is as significant a dimension of transformative constitutionalism as the enforcement of social rights. It ultimately suggests that we should conceive of transformative constitutionalism as providing a conceptual arena in which to develop a socio-legal understanding of how any specific constitutional order emerges and use it as a yardstick to judge and critique the role of constitutions in advancing the cause of social justice.
Bibliographic Citation
Heinz Klug, Transformative Constitutionalism as a Model for Africa?, in The Global South and Comparative Constitutional Law 141 (Philipp Dann, Michael Riegner & Maxim Bonnemann eds., 2020).
