AFRICAN PHILOSOPHICAL VALUES AND CONSTITUTIONALISM: A FEMINIST PERSPECTIVE ON UBUNTU AS A CONSTITUTIONAL VALUE

Author: Keevy, Ilze

Advisor: ,Prof AWG Raath - Committee Chair

Educational level: Doctorate

Discipline: Constitutional Law and Philosophy of Law

University: University of Free State

Abstract: Since 1995 the South African Constitutional Court has contended that it would nolonger entertain only Western thought and legal thinking but also African law andlegal thinking as the Values of all sections of society must be taken into accountin South Africa’s open and democratic society. The Court acknowledged Ubuntuas part of South Africa’s jurisprudence and fused Western and Africanjurisprudence into a new South African “rainbow” jurisprudence. But beneath thismiraculous fusion lies a volatile philosophical relationship of two ancientpatriarchal philosophies which resulted in the erosion of African Values andinnumerable injustices against the African Other.Like Greek philosophy, Western Philosophy has always been plagued byphilosophical prejudice towards women, slaves and barbarians. Racism,however, only entered the equation of Western Philosophy when the West had tojustify their trade in twenty million African men, women and children as Africanchattel slaves in the seventeenth century. This crime against humanity wasjustified in the name of Christianity by philosophers and clergy alike. Whilst theEnlightenment philosophers proclaimed human equality and individual liberties inthe eighteenth century they also fuelled a “new racism” which stereotypedAfricans as inferior and subhuman. Not only did the Otherness of Africans resultin racial segregation in the United States of America in 1883, it also legitimisedWestern colonisation of the “Dark Continent”. Under the banner of the cross,Western colonial powers embarked on their Christian civilising mission of theAfrican continent: destroying African trade patterns, ancestral lands, selfgovernment, tribal systems, African law, cultures, belief systems and Values. Itwas, however, not these factors, the colonial genocides in Congo Free State andGerman South-West Africa or Apartheid South Africa’s crime against humanitywhich resulted in the lingering inferiority complex Africans experience on theAfrican continent, but the most destructive weapon wielded by the West: the“cultural bomb”, which eroded African Values. The publication of Temple’s Bantu Philosophy in 1945 did not only bring proofthat traditional Africans have a collective philosophy but also sparked a heatedinternational and national philosophical debate. In an attempt to structure thediscourse on African Philosophy Oruka introduced his six trends in Africanphilosophy. According to Oruka, ethnophilosophy (or Ubuntu) represents thecollective philosophy, or Ubuntu, of either an African community or Africa as awhole; sage philosophy illustrates that rational thought prevails in philosophicalsages; political philosophy contains the liberation philosophies of African leaderswho envisaged the rekindling of eroded traditional African Values; Negritude isdescribed as the “sum total of African Values”; professional African Philosophy isAfrican Philosophy in the strict sense produced by African philosophers; thehermeneutical approach attempts to reconstruct African reality in post-colonialAfrica; and the literary trend illustrates the devastating effect of Westernsubjugation of the African Other. The debate on African Philosophy illustrates thatthere is no homogenous way of African thinking and that professional Africanphilosophers, modern Africans, African theologians and African feminists rejecttraditional African modes of thought.The Constitutional Court claims Ubuntu Values are in line with the Constitution ingeneral and the Bill of Rights in particular but this study brings evidence to thecontrary. Not only are Ubuntu Values represented in traditional Africa’s closed,strong communitarian societies unique and not universal, but Ubuntu “moralphilosophy” proves to be a religious philosophy. Whilst sec. 15(1) of theConstitution guarantees freedom of religion one has to question why the Courtentertains a religious philosophy such as Ubuntu in its deliberations and not otherreligious philosophies.The Constitutional Court, African Renaissance, the Moral RegenerationMovement, the Ubuntu Pledge, the Heartlines Project and other programmesthroughout South Africa aspire to revive Ubuntu’s eroded traditional AfricanValues. African feminists, African theologians and modern Africans reveal that Ubuntu fuels inequalities, sexism and xenophobia and that Ubuntu does notcomply with sec. 39(1) of the Constitution. Ubuntu is neither in line withinternational or regional human rights and gender mechanisms nor “theConstitution in general and the Bill of Rights in particular”.

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Keywords: , African Feminism, African Philosophy, Deconstruction, Postmodernism, S v Makwanyane, Ubuntu, Values, Western Feminism, Western Philosophy, African Jurisprudence



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