One of the participants at the recent colloquium jointly hosted by Parliament, the Thabo Mbeki Foundation and the University of South Africa to mark 30 years since the adoption of the new South African constitution was Prof Muna Ndulo, William Nelson Cromwell Professor of International and Comparative Law at Cornell University in the United States.
Prof Ndulo has a deep understanding of the making of the South African constitution, gained when he worked as an aide to one of its interlocutors who represented the United Nations during its conceptualisation. He recalled how he witnessed the valiant efforts to imagine alternative social, economic and political realities for a new South Africa against the insidious legacy of apartheid.
Reflecting on this unique historical experience, he said the knowledge he gained during this process shaped his future scholarship and contributed to his global reputation in law research and studies. He welcomed the opportunity, 30 years on, to consider the Constitution’s impact on South Africa, Africa and the rest of the world.
He began by recognising the South African Constitution’s role in initiating a progressive constitutional culture around the world, saying “we should pay tribute to South Africans for that”. The Constitution’s model of inclusivity became a tenet of its architecture and was uniquely South African; this is where its legitimacy lies, Prof Ndulo asserted. It set a high bar for how constitutions can be developed.
However, an assessment of its impact and its challenges is intrinsically tied to South Africa’s past, which has left deep septic wounds last continue to fester. In his view, the discourse on human rights cannot be limited to a linear scheme of civil and political rights, nor to constitution-making processes that reduce them to the production of legal documents. Rather, human rights and the Constitution should be seen as an attempt to dismantle the structural injustices of the society in which it exists.
“Throughout the world, constitutions play a significant role in advancing and safeguarding civil and political rights. While that is important, limiting human rights discourse to these rights fails to address the structural realities of inequality and marginalisation that shapes peoples’ lives,” Prof Ndulo explained.
Linear, juristic frames of these rights, he pointed out, do not address the disadvantages of class divisions, racial inequalities and historical oppression that have their roots in colonialism, he said.
To address these shortcomings, he called for a constitutive framework that is broad in scope and which would “preside in the interest and protection of the liberty of the individuals and that would declare the collective ideals and objectives of the nation”.
This is where the legitimacy of constitutions is situated. They need to be at one with the country’s people, able to speak their languages and walk their walks of life, he declared.
South Africa’s Constitution was drafted in the dying days of the Cold War. However, the distinct historical conditions of constitution-making in Africa take place under the pervasive shadow of entrenched colonial institutional structures that are unresponsive to the needs of the people.
As a result, he pointed out, many African states are saddled with rewriting constitutions that were superimposed on colonial political structures during their independence. Now, these nations are seeking ways to demolish the edifice of this historical disjuncture and develop constitutions that will bring about accountable democratic governance.
Prof Ndulo argued that the methodological premise of South Africa’s constitution making process differed from this situation in several ways. It managed to include meaningful public participation and sought out a diversity of views. It also sought to establish accountability and actively promote peace, justice, human rights, inclusivity and democratic governance.
Underscoring the uniqueness of South Africa’s Constitution, he mentioned the establishment of our institutions supporting democracy, which entrench socio-economic rights. They include, among others, the Electoral Commission, the South African Human Rights Commission, the Auditor-General and the Public Protector. He noted them as a unique constitutional concept that does not yet exist in other former colonial states in Africa.
“It goes beyond the separation of powers and protection of political and civil rights; it also includes socio-economic rights. Today, anywhere in the world when you study socio-economic rights, the South African Constitution provides leadership in these areas.”
In conclusion, Prof Ndulo remarked that the making of South Africa’s Constitution shows that the process of constitution making is as important as its content. “An inclusive process of constitution-making is what makes a constitution durable, legitimate and accepted by all.”
Abel Mputing
28 May 2026
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