Ubuntu

{This section is based on a paper titled “Ubuntu and the Law in South Africa” by Former
Constitutional Court Justice Yvonne Mokgoro available online at
http://www.puk.ac.za/opencms/export/PUK/html/fakulteite/regte/per/issues/98v1mok
g.pdf and a paper titled “An African Perspective on Justice and Race” by Prof Mogobe
Ramose also available online at https://them.polylog.org/3/frm-en.htm . Please note
that this Unit is theoretical in nature and includes references to other disciplines that
students might not be used to and it may be difficult to understand at first. Students
are, therefore, urged to read both papers before and after lectures.}

Introduction

In the last two sections, we briefly touched on the African philosophy of Ubuntu. We
saw how – under colonialism and apartheid – African ways of life were replaced by the
philosophies, values and beliefs of the colonisers. We saw how, during South Africa’s
transitional period, there was an attempt to reclaim Ubuntu and include it as a
foundational value of our democracy in the Interim Constitution. Despite its exclusion
in the Final Constitution, this philosophy – it has been argued – found a place in our
constitutional jurisprudence. However, another view argues that Ubuntu cannot be
found in the South African law despite the best intentions of proponents of the former
argument.

Following on from our discussion on legal pluralism, we now discuss Ubuntu as a

concept of law that may either be incorporated into a larger system of law (weak legal
pluralism) or be a stand-alone system of law equal to other systems of law (strong
legal pluralism) or be a prevailing/fundamental principle of a system of law.

In this section, we will explore Ubuntu and the law in South Africa. We will consider
how different perspectives or understandings on Ubuntu generally and in the
law/Constitution offer us different conclusions in respect of Ubuntu and the demands
of justice. We will conclude by thinking about potential solutions that a different
perspective on Ubuntu may provide to the contestations between living customary law
and its recognition, application and development within the context of the Constitution.
‘Ubuntu’ and ‘ubuntu’: A Brief Note on Language(s)

Throughout our discussion, you will notice that we use ‘Ubuntu’ instead of ‘ubuntu’.
The reason for this is that we seek to differentiate between the ‘ubuntu’ that may
denote the biological human being-ness of people and the ‘Ubuntu’ that generally
denotes a way of life (philosophy) of African people.

You will also notice that our use of the word ‘Ubuntu’ is not italicised as would normally
be the case when the word being used is not the same as that which the document is
written in. We have chosen to do so to show that Ubuntu – although coming from
another language – has not only found a place in the English language but is, itself, a
standalone philosophy amongst other philosophies.

Defining Ubuntu: A Case of Two Disciplines

A Legal View

In her seminal paper on Ubuntu and the Law, Former Constitutional Court Justice
Yvonne Mokgoro begins by admitting that this abstract African concept is difficult to
define in English. Despite this, she accepts the definitions that described Ubuntu as ‘a
world-view (or philosophy) of African societies and a determining factor in the
formation of perceptions which influence social conduct’. This social conduct
emphasises group solidarity to ensure the survival of communities. This belief is
expressed in the maxim “umuntu ngumuntu ngabantu”.

Justice Mokgoro argues that the definition of Ubuntu becomes clearer when its social
values are highlighted. She lists values such as group solidarity, conformity,
compassion, respect, human dignity and collective unity as key social values of
Ubuntu.

This view of Ubuntu and the law seeks to find parallels or a middle ground between
the philosophy of Ubuntu and South African law. Through showing how the social
values of Ubuntu align with the values of the Constitution, Justice Mokgoro illustrates
that Ubuntu can still be found in the law without being specifically mentioned in the
Constitution.
A Philosophical View

Approaching Ubuntu from a philosophical perspective, Prof Ramose defines Ubuntu

as the fundamental ontological and epistemological category in African thought of the
Bantu-speaking people. He shows how the prefix ubu denotes the idea of coming into
being in general. This idea of being then manifests itself in a physical form - ntu.
Therefore, ubu is always orientated towards ntu. In other words, the abstract (ubu) is
always geared towards the physically (ntu). These are two aspects of an indivisible
whole hence ‘ubuntu’. In other words, you are always working to become a better
human being.

What we see from Professor Ramose’s definition above is that, like Justice Mokgoro,
Ubuntu is thought of as the way of life of Africans. However, Professor Ramose does
not stop there. He shows how, within the word itself, the philosophy expresses a
continuous coming into being that emanates from the mental (or metaphysical) and
expresses itself in the physical being who is never complete. S/he has to constantly
work on themselves to ensure that their values are in alignment with the society in
which they exist.

The difference between the two definitions can be summarised as follows: the focus
of Justice Mokgoro’s conception emphasises the social values of Ubuntu that a
person, through conformity to a group, must adhere to. Prof Ramose, on the other
hand, sees Ubuntu as not only one of conformity but is one that defines the very being
of a person and how they interact with others. It is this philosophy that defines the
person not only within the group but also defines them individually.

Ubuntu and South African Law

‘Reading and Finding’ Ubuntu in the Law

Justice Mokgoro points out that indigenous law has featured very little in the
mainstream of South African jurisprudence particularly under the colonial and
apartheid legal systems. She asserts that, despite this historical problem, it is
necessary and possible to create a legitimate system of law for all South Africans.
Under such a system, the unique aspects of Ubuntu must be harnessed and used
carefully, creatively and strategically. Mokgoro asserts that under South Africa’s
constitutional dispensation Ubuntu has and continues to find a space in the legal order.
Justice Mokgoro highlights how the Interim Constitution highlighted the need for
Ubuntu and not victimisation. She argues that despite the exclusion of Ubuntu in the
Final Constitution, the founding values of our democracy (i.e. human dignity, equality,
freedom etc.) are commensurate with the values of Ubuntu. She further argues that
harnessing the unique features of Ubuntu may play an important role in the
advancement of constitutionalism and a culture of rights in South Africa.

In relation to Ubuntu and African Customary Law, Justice Mokgoro points out that the
Constitution (see sec 39 (2)) seeks to bring an end to the marginal development of
customary law principles. The development of African Customary Law, however, must
be in line with the constitution. The court must take into account the spirit, purport and
object of the Bill of Rights. She accepts, however, that it is South African law as a
whole that is in need of change. She concludes that the values of Ubuntu can provide
the necessary ‘indigenous impetus’ that is need to change the South African legal
landscape.

The important point to note from the discussion above is that Justice Mokgoro ‘reads’
and ‘finds’ Ubuntu in the South African law. She draws parallels between the values
of Ubuntu and the values of the Constitutions. Her discussion reveals that despite the
absence of an explicit mention of Ubuntu in the Constitution, it is still possible to use
Ubuntu within the larger framework of constitutionalism to seek justice.

Finding Ubuntu Outside the Law

Proceeding from a philosophical point of view, Prof Ramose maintains that the flexible
nature of law based on Ubuntu is that ‘it is law without centre’. This is because the
philosophy of Ubuntu holds that being is one continuous wholeness rather than a finite
whole. He states that life is a constant flow and flux rather than a definite destination
(i.e. you can never be a ‘perfect’ human being, and you have to consistently and
continuously work on being a better human being). Because humans are the makers
of law – and politics, religion etc. – similarly, the law can never be perfect precisely
because it is a human endeavour. Therefore, the law should be written consist with
the behaviours of humans as contained in the flow of life. In simpler terms, like
imperfect constantly changing humans, law should also be seen as imperfect and
change where necessary. This means that legal rules should not have an irreversible
claim to exist permanently.
Similarly, if we agree that the aim of law is to pursue and actualise the demands of
justice, the logical conclusion would be that the pursuit of justice is constant until justice
is found and brought to reality. Prof Ramose argues, therefore, that law based on
Ubuntu would demand a dynamic and constant search for justice to ensure the
restoration of equilibrium between the three levels of being. This understanding of
justice as the restoration of equilibrium means that the law, as a continually lived
system, can never reach a point of finality.1 In other words, an understanding of law
based on Ubuntu would dictate that a feud/debt is not automatically extinguished by
the passage of time. This is articulated in the maxim molato ga o bole/icala aliboli.

Applying this understanding to the South African situation, Prof Ramose concludes
that the historical injustice (in this case the dispossession of land) cannot be resolved
until the restoration of title to territory (ownership/possession) and sovereignty (control)
over it is restored to the indigenous people conquered in the unjust wars of
colonisation. In other words, in a system of law based on Ubuntu, equilibrium (justice)
can only be restored (achieved) by the return of the land. Neither time nor the
agreement between the negotiators concluded at Kempton Park (the Constitution) can
erase or solve this historical injustice.

Umuntu/Abantu/Ubuntu: A Historical Spectre in the Present

The deeply philosophical discussion above is not easy to understand without thinking
about the historic and present day relationship between the coloniser and the
colonised, European/African conceptions of Law and the what justice is and what it
means in practice. We will attempt to briefly address these issues to clarify Professor
Ramose’s position.

As discussed in Unit 1, the recognition of customary law becomes a question of law

and fact only once the colonial encounter between the coloniser and native Africans
takes place. Likewise, the ontological2 difference of umuntu as a human being and
umuntu as a racial category only arises during this encounter. As was discussed

1
This is in direct contrast to the concept of prescription in Western legal thought. Whereas people may lose
their claim by virtue of a certain amount of time having lapsed, in terms of African philosophy time cannot
erase the claim. For as long as the injustice subsists (equilibrium not restored), the claim remains valid and
actionable.
2
Ontology is the philosophical study of the nature of being. The philosophical question that concerns this
study is ‘what does it mean to be human’. For the purposes of our study, we are questioning the historical
claims of both the coloniser and colonised with reference to ‘who is human’.
during lectures, umuntu as a racial category arises out of the colonial encounter. The
colonised, seeing the ‘unhuman-like’ actions of the coloniser enacted upon the
colonised, concluded that these people could not reasonably be thought of as abantu.
The colonised could see that the coloniser is umuntu (in the biological sense) but is
not umuntu (in the ontological sense). Conversely, the coloniser – not seeing the
colonised as human (in the ontological sense) – treats the colonised as less than (or
non-) human. It was this seeing the colonised as less than (or non-) human that formed
the basis of colonisation. This is the first point of Professor Ramose’s argument.

The second point of Professor Ramose’s argument is that this historical (and arguably
ongoing) colonial encounter continues to affect the present. It is therefore necessary
that the atrocities suffered by the ancestors (the ‘living-dead’) are atoned for, for the
benefit of the living and the yet-to-be-born. This, he points out, is because icala aliboli.
The injustice does not disappear merely because of the passage of time. Justice does
not come about based on the enactment of a supreme constitution. This is the
difference between a European conception of law and a conception that is based on
Ubuntu.

These two points (and others in the paper) point to a particular type of thinking about
justice in the South African law. Using this frame of thinking, we could conclude that
the law (or more specifically) does not and will not provide justice as it does not
adequately address the historical problem of colonisation. Comparing this to Justice
Mokgoro’s argument of justice and Ubuntu being contained within and alongside the
Constitution, we see that although they are discussing a similar topic, they come to
very different conclusions.

Conclusion

These two different understandings of Ubuntu in South African law illustrate how
Ubuntu can be used to, at the least, address the problems plaguing the country.
However, the difference in the understanding of the fundamental demand of law based
on Ubuntu gives us two different conclusions in respect of whether the Constitution is
the right tool to be used to truly achieve justice.