The Constitution as a futures document

There is a particular feeling that comes with reading the South African Constitution 30 years on. It is the feeling of holding a letter someone wrote to a country that does not yet exist.

Today is Workers' Day. The holiday commemorates a particular labour history – the strikes, the unions, the long argument about who counts as a worker and what work earns. By accident of the calendar, it also sits close to a question I want to raise. What kind of document is a constitution that writes a labour world the country had never had?

The grammar of progressive realisation

Most constitutions describe a present and constrain a power. The South African one, drafted in the early 1990s and adopted in 1996, does something else. It uses a temporal grammar most legal texts avoid. In its socio-economic rights, the state must take reasonable measures, within its available resources, to achieve the progressive realisation of housing, healthcare, food, water, education.

Progressive realisation. Not realised. Not protected. Achieved, over time, against a horizon.

Even where the rights are direct rather than progressively realised – the right to fair labour practices, the right to strike, the right to bargain collectively – the design points forward. Pre-1994 labour law was one of the engines of apartheid economics: pass laws, migrant labour, a dual structure that kept black workers in conditions the white workforce did not face. To write equal labour rights into the founding text was to write a labour world the country had never had, and to bind every government and every employer to walk towards it.

Futures studies has a name for documents that do this. Anticipatory governance: the practice of building decision-making structures around imagined futures, not only observed presents. Most constitutions are not anticipatory in this sense. They lock in arrangements. The South African text does the rarer thing. It legitimises a future as the standard against which the present must be measured.

Neither founding nor arrival

This is a strange place to live, 30 years in. We are neither at the founding moment nor at the arrival. The country that reads the document is not the country the document was written for.

Unemployment runs at levels the drafters could not have countenanced. The labour market has fragmented in ways the phrase 'fair labour practices' was not built to describe. Gig workers, informal traders, the people who fall outside the unions and outside the formal contracts: they are inside the constitutional vision and outside the constitutional machinery.

Alibi or contract

That gap is where the harder objection lives. Not the lazy one, that the rights are paper. The serious one: that aspirational law can become alibi law. A document that writes a future grants every government a permanent excuse for not yet arriving. The horizon does the work the present should be doing. 30 years of progressive realisation can become 30 years of progressive deferral. To anyone who has watched the same speech given at the same anniversary about the same unfinished promises, this is not paranoia. It is observation.

The temptation is to give in to either reading. Either the labour movement won and the rights are real, or the document is an alibi and the words have become decoration. I find both too tidy for what the text is actually doing. A futures document does not describe a present. It holds a horizon steady while the country approaches it unevenly. Progressive realisation, even where it is not the technical language of a particular section, is the orientation of the whole text. It is not a description of what has happened. It is also not a permission slip for not arriving. It is a contract with what might – and a contract is a thing one party can be held to.

There is something useful in this for anyone who builds – companies, institutions, movements. The documents written at the founding are different from the documents written at the operating stage. I see this in my own work. A shareholders' agreement signed at incorporation, a set of articles, a founding employment contract: these are not just records of what is. They are wagers about what the company will become. The discipline of writing them well is the discipline of writing forward without writing fiction. A founding document, written well, does not only describe the thing being founded. It writes the conditions of its becoming. It says: here is what we are, here is what we are not yet, and here is the path between them. The South African Constitution is the most ambitious example of this I know. It is also a palimpsest now, in the proper sense – every amendment, every Constitutional Court judgment, every act of slow realisation written over the founding text without erasing it.

Keeping faith

On Workers' Day, the question worth holding is not whether the Constitution has delivered on its labour promises. That question has answers, and they are mixed, and the people best placed to give them are not me. The harder question is this: what does it mean to keep faith with a document like that – not by pretending it has arrived, not by treating it as alibi, but by holding to it as work still to be done? The wager was always that the labour world the text wrote could be built. Building it is the inheritance.