The Sizwe will not go away: The truth and reconciliation commission, human rights and nation‐building in South Africa

This article evaluates constitutionalist claims that constructing a ‘state of right’ can displace nationalism and depoliticise ethnicity. Constitutionalism extracts law from its normative context, against which this paper asserts a view of law as an open ideological system which draws from surrounding discourses on power and identity. The paper examines the slippage between nationalist discourse and rights talk in two specific instances. In the Constitutional Court death penalty decree, a number of judges invoked romantic portrayals of African community in their use of the ideological term ubuntu. The Truth and Reconciliation Commission writes a new nationalist history which expresses a discontinuous form and a vision of ‘constitutive violence’ with parallels in other nationalist narratives. It is concluded that a sceptical view of certain constitutionalist claims is necessary to avoid lapsing into the legal fetishism which has characterised Latin American transitions to democracy.