Transitional Justice, Distributive Justice, and Transformative Constitutionalism Comparing Colombia and South Africa

Emerging from national pasts marred by violence, conflict, and injustice, South African and Colombian societies have sought to establish futures founded on equality, democracy, and constitutionalism. Transitional Justice, Distributive Justice, and Transformative Constitutionalism: Comparing Colombia and South Africa offers the first dedicated scholarly comparison of the two countries in relation to the intersecting ideas of transitional justice, distributive justice, and transformative constitutionalism. Featuring contributions by Colombian and South African authors, this volume richly examines each country from a range of thematic perspectives as the basis for deep reflection and comparison between them.

Transitional Justice, Distributive Justice, and Transformative Constitutionalism brings together three interconnected concepts: the need for redress of past historical wrongs, the imperative to ensure fairness in the distribution of resources, and the commitment to law-governed social change mediated through a constitution. Part one explores innovative approaches to transitional justice that go beyond law, such as novel philosophical approaches to reconciliation, the use of art to address past wrongs, and the role of museums in memorialising the past. Part two considers one of the central components of transformative constitutionalism: socio-economic rights. It addresses the role of history in the interpretation of socio-economic rights and the procedural mechanisms that enable access to these rights. Part three looks at the development of legal structures designed to achieve both transitional and distributive justice in the areas of indigenous people's rights, procedural law, and international law.

A timely work of innovative methodology and rare engagement between two constitutional democracies in the Global South, this title will be of interest to academics working in the fields of transitional justice, distributive justice, and transformative constitutionalism in Colombia and South Africa.

David Bilchitz, Professor and Director, University of Johannesburg, University of Reading, and South African Institute for Advanced Constitutional Public, Human Rights, and International Law,Raisa Cachalia, Research Associate and LLD Candidate, University of Johannesburg and Stellenbosch University

David Bilchitz is Professor of Fundamental Rights and Constitutional Law at the University of Johannesburg and Professor of Law at the University of Reading. He is also Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). He is a member of the Academy of Sciences of South Africa and Vice-President of the International Association of Constitutional Law. In 2017, he was awarded a Georg Forster research fellowship from the Von Humboldt Foundation. He publishes widely on constitutional law and fundamental rights including his latest monograph Fundamental Rights and the Legal Obligations of Business (2022).


Raisa Cachalia is an LLD Candidate at the University of Stellenbosch and a Research Associate in the Faculty of Law at the University of Johannesburg. Her research interests include administrative law and constitutional law. She is an editor at the Constitutional Court Review, a journal dedicated to the judgments of South Africa's highest court.

1. Developing a Conceptual Framework for Global South Comparisons: Colombian and South African Contributions, David Bilchitz and Raisa Cachalia
PART I: INNOVATIVE WAYS OF CONCEIVING AND IMPLEMENTING TRANSITIONAL JUSTICE
Theme 1: Re-Conceiving Reconciliation as Relationships: the Role of African and Latin American Values
2. The Role of Economic Goods in National Reconciliation: Evaluating South Africa and Colombia, Thaddeus Metz
3. Building Peace and Restoring Law upon the Ethos: A Comparison between South Africa and Colombia, Nathalia Elena Bautista Pizarro
4. Joint Reflection - Economic Goods and Communitarian Values, Thaddeus Metz and Nathalia Elena Bautista Pizarro
Theme 2: Art and Transitional Justice
5. Aesthetic Negotiation and Artefactual Agency: Key Processes for Symbolic Repair in Transitional Justice, Kim Berman and Michelle LeBaron
6. Aesthetic Litigation as a Mechanism for Building the Truth in the Colombian Truth Commission, Yolanda Sierra León
7. Joint Reflection - How Do Arts Function in Symbolic Reparation? A Comparative Reflection Between Colombia and South Africa, Kim Berman, Michelle LeBaron, and Yolanda Sierra León
Theme 3: History, Museums and Transitional Justice
8. Journey to a New Space: The Apartheid Museum's Truth and Reconciliation Exhibition within the Context of Restorative and Transitional Justice, Emilia Potenza and Adrienne van den Heever
9. Exploring Visitor Expectations and Experiences of Conflict and Transitional Justice Exhibitions in Bogota, Colombia, Nancy Rocio Rueda Esteban
10. Joint Reflection - Journey to a New Space: A Comparative Reflection of Museum Exhibitions within the Context of Restorative and Transitional Justice, Emilia Potenza, Adrienne van den Heever, and Nancy Rocío Rueda Esteban
PART II: SOCIO-ECONOMIC RIGHTS AND THE RELATIONSHIP BETWEEN TRANSITIONAL AND DISTRIBUTIVE JUSTICE
Theme 4: The Role of History in Socio-Economic Rights Jurisprudence: Linking Transitional and Distributive Justice
11. Does History Make a Difference? Exploring the Role of History in the Interpretation of Socio-Economic Rights, David Bilchitz
12. Historical Injustice and Socio-Economic Rights in Colombia Constitutional Jurisprudence: The Case of Victims of Forced Displacement, Magdalena Ines Correa Henao
13. Joint reflection - The Difference History Makes: Comparative Reflections on Socio-Economic Rights and Historical Consciousness in South Africa and Colombia, David Bilchitz and Magdalena Ines Correa Henao
Theme 5: Collective Mechanisms for the Advancement of Socio-Economic Rights
14. Class Actions and the Scarce Resource of the Law, Meghan Finn
15. Forced Displacement and Social Change: Light and Shadows in the Implementation of the Judgment T-025 of 2004, Andres Mauricio Gutierrez Beltran
16. Joint reflection - Litigating for a Collective: Structural Judgments and Class Actions in Colombia and South Africa, Meghan Finn and Andrés Mauricio Gutiérrez Beltrán
PART III: THE ROLE OF NOVEL LEGAL STRUCTURES IN REALISING TRANSITIONAL AND DISTRIBUTIVE JUSTICE
Theme 6: Indigenous Peoples and Transitional Justice
17. Twenty-five Years of Democracy: The Consequences of South Africa's Post-Apartheid Constitution and Political Economy for Traditional Peoples, Sindiso Mnisi Weeks
18. Evaluating the Impact of the Peace Agreement on the Indigenous Peoples of Colombia: Land Rights and Compensation, Diana Carolina Rivera Drago and Filipo Ernesto Burgos Guzman
19. Joint reflection - The South African and Colombian 'Peace Agreements': Restoration of Rights or Continuing Difficulties for Indigenous Peoples?, Sindiso Mnisi Weeks and Diana Carolina Rivera Dragos
Theme 7: Procedural Justice, the Law and Transitional Justice
20. Exploring the Relationship between Violent Protest and Procedural Injustice in South Africa's Democratic Transition, Raisa Cachalia
21. Beyond Democracy: Meaningful Public Participation as a New Approach to Public Decision-Making in the Context of Colombia's Transitional Justice Process, Julián Andrés Pimiento Echeverri and Irit Milkes
22. Joint reflection - Comparative Reflections on Transitional Justice and Political Inclusion in South Africa and Colombia, Raisa Cachalia and Irit Milkes
Theme 8: The Role of International Law in Advancing Transitional Justice
23. South Africa and the International Criminal Court: Perpetuating the Legacy of Overlooking the Ergo Omnes Obligation to Prosecute International Crimes by Prioritising Peace, Mispa Roux
24. Colombia and the International Criminal Court: A Case of Positive Complementarity in Transitional Justice Contexts, Natalia Silva Santaularia
25. Joint reflection - South Africa and Colombia as Transitional Justice Societies, Mispa Roux and Natalia Silva Santaularia