There is no Supreme Constitution - Koos Malan

New book released critiquing South Africa's flawed constitutional order

Koos Malan, There is no Supreme Constitution: A Critique of Statist-individualist Constitutionalism, African Sun Media, 2019

None of the articles of faith of the South African Constitution is plausible. The Constitution is not supreme and entrenched. Vulnerable to potent socio-political forces it changes continuously and often profoundly regardless of stringent amendment requirements. The trite threefold separation of powers is more metaphorical than real and therefore unable to secure effective checks and balances. Though institutionally separated with their own personnel and functions, the three powers are ordinarily integrated

in a single dominant political leadership, committed to achieving the same ideological goals. The bill of individual rights cannot guarantee justice, because rights are subject to the ideologically-driven exercise of judicial interpretation, often with damaging consequences for those relying on the bill of rights.

This situation does not only apply to South Africa, but to all Constitutions premised on the same articles of faith, in this book described as the doctrine of statist-individualist constitutionalism. An improved mode of constitutionalism is called for - one which is equipped with a sounder system of checks and balances and better endowed towards the achievement of justice through a balanced constitution.


There is no Supreme Constitution is one of those very few real additions to the field of constitutional theory and constitutional law. Every student and scholar in the field, in South Africa or anywhere else in the world, stands to profit immensely from it. If its message comes through, a lot of foolishness would be avoided. - Prof Andreas Kinneging, Leiden University, The Netherlands


A work that, determinedly and conscientiously, sets out to dispel a set of myths perceived in our Constitution. It takes aim at every element of our traditional thinking on constitutionalism. There is no Supreme Constitution says that the Constitution is not supreme, nor is it definitive, constant or enduring. If individuals rely on it for protection, they live in a fool’s paradise. Individuals should instead look to community-based organisations, woefully neglected in the enactment, in which they can promote their interests and develop their culture in cooperation, not in conflict, with others. Passionately argued, this work insistently challenges our pre-conceptions and leaves us thoroughly stimulated and invigorated. - Adv Martin Brassey, SC, Johannesburg Bar


A refreshing and highly original criticism of blind faith in formal constitutionalism against the backdrop of the situation in South Africa. - Prof Stefaan van der Jeught, University of Brussels (Vrije Universiteit Brussel)


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