The Real Colour of Water: A Review of Ndeunyema’s “Re-Invigorating Ubuntu Through Water”

“Re-Invigorating Ubuntu Through Water” by Dr Ndjodi Ndeunyema (Pretoria University Law Press 2021).

Ndjodi Ndeunyema’s book is the lawyer’s version of the aphorism that “water is life”.

Expressed in the Oshiwambo language as “omeya ogo omwenyo,” this aphorism echoes beyond the confines of Namibia, including the Global North, as Ndeunyema (2021: 2-6) dispels the myth that water crises only affect developing countries. The author of Re-Invigorating Ubuntu Through Water basically argues that the right to life subsumes the right to water – an argument that vastly enriches the sometimes stormy constitutional debates in Namibia, a legal system that the World Justice Project ranked as Africa’s best rule of law.

Particularly, the author’s core argument would make waves in the Amathole District Municipality, in South Africa. In September this year, residents of that cash-strapped municipality in the Eastern Cape dragged to court the provincial and national governments because they have failed, since 2017, to supply potable water in several villages. They put it to the judge in the Mthatha High Court that the Amathole district council has a constitutional duty to give villagers adequate access to water, even carting it to the villages. It is precisely this sort of submission that Ndeunyema wants lawyers to articulate before the courts in Namibia.

The author develops his thesis through five close-knit chapters, each worth our rapt attention. After presenting the main water-security challenge in the introduction, he lays bare the bases for interpreting a human right to water as flowing from the right to life (Chapter 2); he then deploys Ubuntu to construct his idea of “re-invigorative constitutionalism” (Chapter 3); and he examines the right to water under the primary sources of international law, namely binding treaties, customary international law, and general principles of law (Chapter 4). In Chapter 5, the author tackles the fact that, unlike the South African Constitution, the Namibian Constitution does not expressly provide for the human right to water (i.e., the non-justiciability issue). Lastly, he spells out the “AQuA” (Available, of Quality, Accessible) contents of that right (Chapter 6).

“Re-invigorative constitutionalism shines a new trail in the water jurisprudence by the manner in which it combines transformative constitutionalism and the ethos of Ubuntu.”

This review focuses on the author’s “re-invigorative constitutionalism” (2021: 40-59) because I view it as the centrepiece and the book’s most compelling contribution to constitutionalism and comparative constitutional law.

Re-invigorative constitutionalism shines a new trail in the water jurisprudence by the manner in which it combines transformative constitutionalism and the ethos of Ubuntu. True, the author is not the first thinker to couple these two perspectives. For example, Henrico (2016) used administrative law to exemplify how “transformative legal education” and Ubuntu add to transformative constitutionalism. But Ndeunyema’s monograph is remarkable for blending transformative constitutionalism and Ubuntu to cure the former’s “incompleteness” (2021: 40-42) and to remedy the non-justiciability of the right to water. Indeed, the Namibian Bill of Rights does not have any equivalent of section 27(1)(b) of the South African Constitution, which entitles individuals to access “sufficient food and water”.

Despite the sheer substantive force of the author’s point, certain groups of scholars who read it will inevitably contest some of its premises, if only because, like the real colours of pure water, interpreting the Constitution properly has ultimately been something of a mystery. Historians and political scientists would disagree with Ndeunyema (2021: 34-35), Horn (2017: 99), and Mundia (2017: 100) when these three jurists describe the Namibian Constitution as “transformative” in the sense of “post-liberal”. 

Although the genitor of transformative constitutionalism, Karl Klare (1998: 150-156), portrayed the South African Constitution as “postliberal”, this label does not seem to apply to the Namibian Constitution. The five Western nations (Canada, France, UK, US, and West Germany) who set up in 1982 the architecture of the Namibian Constitution during the Cold War era made sure that the Namibian Constitution would be liberal (see Diescho, 1992: 42), not communist. Political scientist and former Windhoek mayor Amupanda (2017) even decried the (neo-)liberal character of the Namibian Constitution.

This insight explains most plausibly why the Namibian Constitution does not feature justiciable socio-economic rights, except for labour and education. Hayek (1960: 72) asserted that the only way to foster a free society is to reduce government interference to a minimum. Liberals would therefore deny the view that this coastal state owes its residents any constitutional duty to supply them with water.

Merging transformative constitutionalism and Ubuntu may prove a highly contentious aspect of re-invigorative constitutionalism for decolonial scholars. Ndeunyema (2021: 13) stresses that his book represents a “decolonial” endeavour, yet most decolonial jurists would denounce that merger because they perceive transformative constitutionalism as a disguised liberal discourse (Sibanda, 2011: 486) that perpetuates neo-apartheid (Madlingozi, 2017: 135-145).

Though I, too, doubt that transformative constitutionalism could ever serve as a genuine indigenous jurisprudence in Africa, I nonetheless expect re-invigorative constitutionalists to confound critics and ease the inner tensions of their theory, some of which Ndeunyema himself (see 2021: 54-58) acknowledges. 

For one thing, unlike transformative constitutionalism, African justice traditions seldom privilege courts as the forums for resolving the dilemmas that societies face; neither do they prefer individualism over community-centeredness. If anything, Rautenbach’s study (2017) on the role of Ubuntu in adjudicating constitutional disputes suggests that Ubuntu can dispense with transformative constitutionalism altogether in settling those disputes.

Whether you endorse or reject the nexus between transformative constitutionalism and Ubuntu, you cannot help but find the book engrossing and its stylish prose limpid like the sky of the Namib Desert. You also can’t forget the passage where the author vividly recalls those households in the drought-stricken Ohangwena region who collected their own urinal “water” and those of their animals to prepare the area where they slash millet.

As re-invigorative constitutionalism places a premium on persuasion and the culture of justification (2021: 37-38), this refreshing book promises to excite better-reasoned arguments in one of the driest countries in Southern Africa where socio-economic issues, such as housing and healthcare, tend to be hotly debated. I therefore can’t wait to see the enthusiasm with which constitutionalists will greet Re-Invigorating Ubuntu Through Water and the tectonic shift that it will ignite in his native Land of the Brave.