The Spirit of Ubuntu and the Human Dignity

The Healing Touch of South African Constitutional Jurisprudence

The Spirit of Ubuntu and Human Dignity in South Africa:-  "A Garden where Humanity Breathes"

“Justice boasts at the tribune, and harmony vaunts in the cottage,

While the ghost of the law stands at the throne of the king.

Into the heart's most trusty bond, and into love's secrets,

Presses the sycophant base, tearing the friend from the friend.

All thy holy symbols, O truth, deceit has adopted,

And has e'en dared to pollute Nature's own voices so fair,

That the craving heart in the tumult of gladness discovers;

True sensations are now mute and can scarcely be heard.”

When my constitutional soul is wounded by the Unconstitutional Acts on this Constitutional Day, I felt to go to a shrine where the Jurisprudence of Humanity breathes, in so far these wounds could have a healing touch, and like beloved, Oh! My Mistress, Law you have made me come into your Garden of Dignity, where I could rest and feel the intrinsic worth of myself and what means to be human. It feels to me that I take a bower with you in these beautiful shades of trees of J Keats literature, which represents the South African Constitutional Jurisprudence, as

“A thing of beauty is a joy forever:  Its loveliness increases; it will never

Pass into nothingness; but still will keep A bower quiet for us, and a sleep

Full of sweet dreams, and health, and quiet breathing.

Therefore, on every morrow, are we wreathing

A flowery band to bind us to the earth

Therefore, 'tis with full happiness that I Will trace the story of Endymion”

Thus while breathing the Jurisprudence of South Africa, I write to the traveler of law, that whenever you feel that the inhumanity of Soul have put you in misery, Walk to me, Oh! My friend, Let me take you to, The Walk, which Friedrich Von Schiller profoundly writes,

“Hail to thee, mountain beloved, with thy glittering purple-dyed summit!

Hail to thee also, fair sun, looking so lovingly on!

Thee, too, peaceably azure, in infinite measure extending

Round the dusky-hued mount, over the forest so green,--

Round about me, who now from my chamber's confinement escaping,

And from vain frivolous talk, gladly seek refuge with thee.

Thousands of hands by one spirit are moved, yet in thousands of bosoms

Beats one heart all alone, by but one feeling inspired--

Beats for their native land, and glows for their ancestors' precepts;

Here on the well-beloved spot, rest now time-honored bones.

Purer my life I receive again from thine altar unsullied,--

Purer receive the bright glow felt by my youth's hopeful days.”

John Murungi, in her sublime remarks puts out the Humanity Jurisprudence of South African Constitution by stating that,

“Each path of jurisprudence represents an attempt by human beings to tell a story about being human. Unless one discounts the humanity of others, one must admit that one has something in common with all other human beings. To discount what one has in common with other human beings is to discount oneself as a human being. What is essential to law is what secures human beings in their being. The pursuit and the preservation of what is human and what is implicated by being human are what, in a particular understanding, is signified by African jurisprudence. Being African is a sign of being African, and being African is a sign of being human. African jurisprudence is a signature. In this signature lies not only what is essential about African jurisprudence, but also what is essential about the Africanness of African jurisprudence”

The South African Constitutional Court in Khumalo & ors v Holomisa, placing Human Dignity in its foundational constitutional order recognizing the “intrinsic worth of Human Beings”, observed that,

“the value of human dignity in our Constitution is not only concerned with an individual‟s sense of self-worth, but constitutes an affirmation of the worth of human beings in our society. It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity in our Constitution therefore values both the personal sense of self-worth as well as the public‟s estimation of the worth or value of an individual.”

Justice Mahomed, speaking for the transformative jurisprudence in South Africa observed that,

“All constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that exercise; and the moral and ethical direction which that nation has identified for its future. In some countries, the Constitution only formalises, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future.

 

The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past, which it repudiates, and the future, to which it seeks to commit the nation, is stark and dramatic. "
“Such a jurisprudential past created what the postamble to the Constitution recognises as a society characterised by strife, conflict, untold suffering and injustice.” What the Constitution expressly aspires to do is to provide a transition from these grossly unacceptable features of the past to a conspicuously contrasting: “future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief, or sex.”
 
The postamble to the Constitution gives expression to the new ethos of the nation by a commitment to “open a new chapter in the history of our country,” by lamenting the transgressions of “human rights” and “humanitarian principles” in the past, and articulating a: “need for understanding, but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimisation.”
 
“The need for ubuntu” expresses the ethos of an instinctive capacity for and enjoyment of love towards our fellow men and women; the joy and the fulfilment involved in recognising their innate humanity; the reciprocity this generates in interaction within the collective community; the richness of the creative emotions which it engenders and the moral energies which it releases both in the givers and the society which they serve and are served by."

The famous phrase umuntu ngumuntu ngabantu means “a person is a person by or through other people.” In "ubuntu human beings are intertwined in a world of ethical relations and obligations from the time they are born. The social bond, then, is not imagined as one of separate individuals. This inscription by the other is fundamental in that we are born into a language, a kinship group, a tribe, a nation. But this inscription is not simply reduced to a social fact. We come into the world obligated to others, and in turn these others are obligated to us, to the individual".

Mabogo More brings together the different aspects of ubuntu in his own profound and yet succinct definition, which finds its place in the most profound book, Ubuntu and the law African Ideals and Post Apartheid Jurisprudence as, 

In one sense ubuntu is a philosophical concept forming the basis of relationships, especially ethical behaviour. In another sense, it is a traditional politicoideological concept referring to socio-political action. As a moral or ethical concept, it is a point of view according to which moral practices are founded exclusively on consideration and enhancement of human well-being; a preoccupation with “human.” It enjoins that what is morally good is what brings dignity, respect, contentment, and prosperity to others, self and the community at large. uBuntu is a demand for respect for persons no matter what their circumstances may be. In its politico-ideological sense it is a principle for all forms of social or political relationships. It enjoins and makes for peace and social harmony by encouraging the practice of sharing in all forms of communal existence.

But this sense of Individual Dignity, as the foundation of Constitutional Order, could never come without the cultivation of morality in the society which recognizes the inherent worth of human and hence comes the “glimmering light of Ubuntu”, that provides the healing touch. The Spirit of Ubuntu has been beautifully described by Justice Mokogoro in a landmark the judgment of S v. Makwanyane and Another, as

“Generally, ubuntu translates as humaneness. In its most fundamental sense, it translates as personhood and morality. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasizes respect for human dignity, marking a shift from confrontation to conciliation”

Justice Mokgoro appeals to ubuntu as the Grundnorm of South African Constitutional Jurisprudence. As Mokgoro eloquently points out further,

“Not only is the notion of ubuntu expressly provided for in the epilogue of the Constitution, the underlying idea and its values are also expressed in its preamble. These values underlie, first and foremost, the whole idea of adopting a Bill of Rights and Freedoms in a new legal order. They are central to the coherence of all the rights entrenched in Chapter 3—where the right to life and the right to respect for protection of human dignity are embodied in sections 9 and 10 respectively.”

Justice Sachs, in Dikoko v Mokhatla emphasized the importance of Ubuntu as

“uBuntu-botho is more than a phrase to be invoked from time to time to add a gracious and affirmative gloss to a legal finding already arrived at. It is intrinsic to and constitutive of our constitutional culture. Historically it was foundational to the spirit of reconciliation and bridge building that enabled our deeply traumatised society to overcome and transcend the divisions of the past. In present-day terms it has an enduring and creative character, representing the element of human solidarity that binds together liberty and equality to create an affirmative and mutually supportive uBuntu, Socioeconomic Rights, and Personhood triad of central constitutional values. It feeds pervasively into and enriches the fundamental rights enshrined in the Constitution.

The Ideal of Ubuntu also highlights the important place of Restorative Justice in South African Criminal Jurisprudence as it was further observed,

“uBuntu-botho is highly consonant with rapidly evolving international notions of restorative justice. Deeply rooted in our society, it links up with worldwide striving to develop restorative systems of justice based on reparative rather than purely punitive principles. The key elements of restorative justice have been identified as encounter, reparation, reintegration and participation. Encounter (dialogue) enables the victims and offenders to talk about the hurt caused and how the parties are to get on in future.

Reparation focuses on repairing the harm that has been done rather than on doling out punishment. Reintegration into the community depends upon the achievement of mutual respect for and mutual commitment to one another. And participation presupposes a less formal encounter between the parties that allows other people close to them to participate. These concepts harmonise well with processes well known to traditional forms of dispute resolution in our country, processes that have long been, and continue to be, underpinned by the philosophy of ubuntu-botho.”

The Spirit of Ubuntu was seen more profoundly in the case of Khosa and Others v. Minister of Social Development and Others, where it made the Permanent Residents, as a part of South African Citizen who share the same value of Community and of respect towards persons and their inherent worth in their Community by striking down a law which differentiated on the basis of Citizenship, as Unfair Discrimination. As the Court observed, “the holder of a permanent residence permit has all the rights, privileges, duties and obligations of a citizen save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship”.

“At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.

For, both permanent residents and citizens contribute to the welfare system through the payment of taxes, the lack of congruence between benefits and burdens created by a law that denies benefits to permanent residents almost inevitably creates the impression that permanent residents are in some way inferior to citizens and less worthy of social assistance. Sharing responsibility for the problems and consequences of poverty equally as a community represents the extent to which wealthier members of the community view the minimal well-being of the poor as connected with their personal well-being and the well-being of the community as a whole”.

Justice Jajbhay in City of Johannesburg V. Rand Properties observed the “Ideal Spirit of Constitution and Ubuntu”, in its profound sense as

“Our Constitution requires a Court in matters such as the present to weave the elements of humanity and compassion within the fabric of the formal structures uBuntu, Socioeconomic Rights, and Personhood of the law. It calls upon us to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern.

Our Constitution retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular and repressive, and vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos.”

The Court further highlighted the “deep cultural relation with the philosophy of Ubuntu”,  

This statement articulates a spirit of ubuntu, which is part of the deep cultural heritage of the majority of the population. In South Africa the culture of ubuntu is the capacity to express compassion, justice, reciprocity, dignity, harmony and humanity in the interests of building, maintaining and strengthening the community. uBuntu speaks to our inter-connectedness, our common humanity and the responsibility to each that flows from our connection

 uBuntu is a culture, which places some emphasis on the commonality and on the interdependence of the members of the community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community of which such a person may be a part. In South Africa, ubuntu must become a notion with particular resonance in the building of our constitutional democracy.”

Therefore, the South African Constitutional Court with a deep sense of past and recognizing its "New Role" in the "New South Africa" observed that,

"The [Constitution requires the] Court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy.

It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern. The inherited injustices at the macro level will inevitably make it difficult for the Courts to ensure immediate present-day equity at the micro level. The judiciary cannot of itself correct all the systemic unfairness to be found in our society. Yet it can at least soften and minimise the degree of injustice and inequity, which the eviction of the weaker parties in conditions of inequality of necessity entails. 

Therefore, let me end on these notes and leave you with a happy slumber, shinning with the utmost profundity of the Wordsworth’s Ode: Intimations of Immortality, where one could feel to have rest with a the human heart that leads to the eternal  “Nature” of South Africa Jurisprudence, wherein resides the child of humanity and says,

“Our birth is but a sleep and a forgetting:  The Soul that rises with us, our life’s Star

Hath elsewhere had its setting, And cometh from afar:

Earth fills her lap with pleasures of her own;

Yearnings she hath in her own natural kind, And even with something of a mother’s mind, And no unworthy aim,

The homely nurse doth all she can  To make her foster-child, her inmate man,

O joy, that in our embers Is something that doth live, Thanks to the human heart by which we live,

Thanks to its tenderness, its joys, and fears, To me the meanest flower that blows can give Thoughts that do often lie too deep for tears.”

Thank you, 

Wishing you Happy Constitutional Day

Sanu Ranjan