The South African Constitution as Memory and Promise: An Exploration of Its Implications for Sexual Violence

ABSTRACT

This article considers the South African Constitution as a living text that founds the new democratic state and asks about its politics of memory. By its very nature, a constitution looks simultaneously backwards and forwards: the promise of the constitution cannot be understood separately from its memory of the apartheid past, and vice versa. The past continuously gets rewritten and reframed as we always reinterpret it anew in light of current concerns and power distributions. It is argued that these politics do not fade away but rather intensify as we move further away from the constitutional moment in time. Focusing on the urgent problem of on-going very high levels of sexual violence in South Africa, the article tries to capture the ways in which constitutional memory and promise function and should function in this respect. Two strategies of memory, namely the memorial and the monumental, are distinguished and applied to the constitutional promise to end sexual violence.

Acknowledgments

Thanks should also go to Jacques de Ville for his critical comments on the draft version and to the two anonymous reviewers of Politikon for their helpful comments.

Notes

1 Said by Shklar with reference to Nathaniel Hawthorn's The Scarlet Letter.

2 See Davis ‘SA Reconciliation Barometer 2014: The struggle against Apartheid amnesia’ The Daily Maverick (2014, December 4) for a discussion of the Institute for Justice and Reconciliation's 2014 Reconciliation Barometer which shows that among all race groups there is a surprising drop in the percentage of people who believe Apartheid to have been a crime against humanity.

3 See Cavarero (1995) In Spite of Plato: A Feminist Rewriting of Ancient Philosophy for a discussion of how death is the measure of the worth of the masculine hero in the western literary tradition. Because of the gender bias of the term ‘hero’ the suffering of women does not easily lend itself to monumentalisation. See for instance the article by Theidon (‘Gender in Transition: Common Sense, Women, and War’ 2007, 464), and Snyman's quote—where women's suffering is seen as doubly heroic precisely because women do not easily gain honour through their suffering.

4 As used in the post-amble to the (interim) Constitution of the Republic of South Africa Act 200 of 1993; Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’, 31.

5 See Muldoon Tricks of Time: Bergson, Merleau-Ponty and Ricoeur in Search of Time, Self, and Meaning, 2006, 67ff.

6 According to her, Gadamer's work forms the ‘basis for [the] current focus [in philosophy] on limits’; she adds, ‘his concern has been to overcome the positivistic hubris of assuming that we can develop an “objective” knowledge of … phenomena’ in Gadamer: Hermeneutics, Tradition and Reason, 1987, 1.

7 This idea is of course also forcefully articulated by Socrates in his Apology where he argues that his superior wisdom lies in the fact that he does not think that he can know what he does not know (21d) and similarly the voice or daemon that advises him since his early childhood ‘always dissuades [him] from what [he is] proposing to do, and never urges [him] on’ (31d).

8 Christian Education SA v. Minister of Education 2000 (10) BCLR 1051 (CC); 2000 4 SA 757 (CC). See discussion in Du Plessis ‘Affirmation and celebration of the “religious Other” in South Africa's constitutional jurisprudence on religious and related rights: Memorial constitutionalism in action?’, 387–388.

9 Prince v President, Cape Law Society 2001 2 BCLR 133 (CC). See discussion in Du Plessis ‘Affirmation and celebration’, 388–390.

10 S v Makwanyane 1995 (6) BCLR 665 (CC). See discussion in Du Plessis ‘The South African Constitution as memory and promise’, 390–391.

11 Crossley & Others v National Commissioner of South African Police Service & Others [2004] 3 All SA 436 (T). See discussion in Du Plessis ‘Affirmation and celebration’, 393–396.

12 Soobramoney v. Minister of Health KwaZulu-Natal 1997 (12) BCLR 1696 (CC).

13 Rape Crisis ‘Rape in South Africa’ at http://rapecrisis.org.za/rape-in-south-africa. Further, more than 40% of these victims are younger than 18 years (cf. Jewkes, Abrahams, and Mathews Preventing Rape and Violence in South Africa: Call for Leadership in A New Agenda For Action 2009, 1).

14 The point here is not a legal one, since male rape is now treated on a par with female rape since the Sexual Offences Act of 2007. It is rather a symbolic impossibility to simultaneously occupy the position of man and rape victim.

15 The Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković International Criminal Tribunal for the Former Yugoslavia (ICTY) Trial Chamber II, The Netherlands IT-96-23-T & IT-96-23/1-T (22 February 2001), available at http://www.icty.org/x/cases/kunarac/tjug/en/kun-tj010222e.pdf

16 An anonymous reviewer for Politikon rightly pointed out that the promising developments in the 1990s and early 2000s in the ad hoc tribunals for Rwanda and the former Yugoslavia concerning war rape have in the meantime been diluted by more recent developments at the level of international law, with the result that it is no longer straightforward to rely too much on the example set by the International Criminal Court, along the lines that I suggest here.

Additional information

Funding

This work was supported by the NRF under the Rated Researchers Incentive Grant.