Social justice in a time of neo-apartheid constitutionalism : critiquing the anti-black economy of recognition, incorporation and distribution

In this article, I deploy a decolonisation critique to show that apprehended from the lived experiences of South Africa’s socially excluded and racially discriminated: this is the time of neoapartheid constitutionalism. By neo-apartheid constitutionalism I mean to convey the fact that post-1994 constitutional re-arrangements are transforming society in ways that do not instantiate a fundamental rupture with the inherited, sedimented and bifurcated social structure in terms of which the majority of black people remain confined in a ‘zone of non-beings’. More specifically, I demonstrate that in this time of neo-apartheid the contemporary discourse of social justice, which is transformative constitutionalism’s master frame for social emancipation, is complicit in the continuation of this anti-black bifurcated societal structure. A historical survey of the emancipatory politics of anti-apartheid movements serve as a reminder that transformative constitutionalism and social justice have not always been the only emancipatory horizons. I then demonstrate that the pillars of the contemporary praxis of social justice are fetishisation of human rights, deification of the Constitution, and veneration of civil society. I argue that in historically white supremacist countries, firstly, the human in “human rights” is the conception of humanity imposed during colonisation, and that in the absence of the revolutionary approaches that decolonise “the human”, as historically proposed by the PAC and the BCM, the extension of human rights to those historically deemed sub-human is an endeavour to enact transition from the status of sub-humanity to that of being human like the white man without dislodging the edifice of this society of apartness. Secondly, I show how this idea of the human and of human rights is guaranteed by a deified Constitution that is assimilationist in that it seeks to incorporate the historically conquered into an un-decolonised bifurcated societal structure. Finally, I show that the veneration of civil society in the context where the realm of civil society is dominated by white people – who, of necessity, deploy an ahistorical, colour-blind and state-focused notion of social emancipation - entrenches teleological whiteness and deflects attention away from structures of coloniality and racism.This article was developed in the context of the research project ‘ALICE — Strange Mirrors, Unsuspected Lessons’, coordinated by Boaventura de Sousa Santos (see http://alice.ces.uc.pt) at the Centre for Social Studies of the University of Coimbra, Portugal. The project is funded by the European Research Council, 7th Framework Program of the European Union (FP/2007-2013)/ERC Grant Agreement [269807].Presented an earlier draft of this article at Thinking Africa Colloquium, Grahamstown on 11 September 2014.http://www.journals.co.za/content/journal/ju_slram2018Jurisprudenc