THE NEW ENERGY FOR FEDERALISM AND SELF-GOVERNMENT

1. Introduction – “federalism” and “self-government” not finally laid to rest

People are talking again about autonomy, self-management, self-government and federalism. It touches on macro-constitutional issues dealing with the allocation of government power – legislative, executive, policing, and several other similar forms of binding power. This involves matters that were seriously debated in the eighties and early nineties but seemingly were finally wiped off the table with the coming into operation of the present (1996) constitution. But this is not the case.

In the Western Cape there is considerable insistence on greater autonomy. In the Democratic Alliance (DA) there is considerable energy for federalism (as opposed to centralism). And in the Solidarity Movement, by far the biggest organised grouping among Afrikaners, ideas concerning federalism, more specifically community federalism, are the order of the day.

These are strongly driven by two mutually complementary material forces. On the one hand there is the large-scale failure of government under the ANC – at national, provincial and municipal level – coupled with the drastic decline of state enterprises such as Eskom, Transnet, water boards, etc. On the other hand, we have civil institutions and business organisations that from necessity are taking over numerous responsibilities that should be handled by relevant organs of state in terms of the Constitution. The result is that we increasingly have a constitutional reality of a different kind, in spite of the Constitution’s solemn declaration of its own supremacy and stability.

2. 1910 and 1994/1996

The South African state came into being as the Union of South African in 1910. It was a union with some vague federal features such as – in addition to the national (central) government – provincial and municipal authorities endowed with some relatively minor legislative and executive powers that existed only insofar as it pleased the central government.

In 1994, South Africa experienced a major political and constitutional revolution that culminated in the coming into operation of the 1996 Constitution. The political and constitutional revolutions were intimately interwoven. In fact, it was one and the same thing viewed from two perspectives. From a constitutional perspective, parliamentary supremacy was replaced by constitutional supremacy. From a political perspective, domination by the white minority was replaced by black majority rulep.

In the midst of the enormous praise lavished on the supposedly unsurpassable high quality of the Constitution and inspired by the notion of constitutional supremacy, there was an almost total idealistic denial that the events of 1994 had resulted in black majority domination. It was argued – and indeed widely believed – that constitutional supremacy obviated domination of any group, whether a minority or a majority. This view is fundamentally naive and wrong.

Constitutions, however supreme they may purport to be, do not suspend the functioning of political power, even though idealistic constitutional fundis and their coteries passionately believe this to be the case. As can be seen from the events over the past decades, the ANC has constantly used its majority to have its own way. Appeals to the Constitution have not stopped the ANC from proceeding with its ideological project of transformatism (the so-called national democratic revolution). The judiciary, more specifically the Constitutional Court, has been faithfully supporting the ANC in this respect. Only vigorous political opposition and high political risks for government have had the desired inhibiting effect.

As far as the form of the state is concerned, South Africa in 1994 on paper, that is, in terms of the provisions of the Constitution, moved in a slightly more federal direction and in fact acquired something in the nature of a quasi-federal constitution. This is although the term “federal” or a variation thereof does not appear in the text of the Constitution, and also notwithsranding the fact that the ANC as the dominant power in South African politics is strongly centralistic and unequivocally rejects federalism.

The (quasi-) federal traits include: that provincial and municipal governments have specific legislative and executive powers which which they derive directly from the Constitution (and not from the national government); that the second chamber of the national legislature (the National Council of Provinces) is composed of delegations from the provinces and represents them – the provinces; and that the Constitutional Court has jurisdiction to adjudicate disputes between centres of government, such as between the national government and a provincial government/s.

However, constitutional dispensations usually (and indeed sometimes drastically) change through political and administrative practice without any amendments to the text of the constitution concerned being made to provide for such change. Observers of federal dispensations in fact note that, through practice, such dispensations often take a significantly different character from what the constitution provides. Apparently, this also goes for centralistic constitutional dispensations, which also are subject to informal yet drastic changes.

The same applies to South Africa, where two mutually supporting forces referred to above are active: on the one hand changed ideas favouring self-government and federalism, and on the other hand the comprehensive failure of the ANC government and voids of governance being filled by civil institutions.

3.  The new discourse

The developing macro-constitutional discourse on federalism and self-government regarding where political power should be vested and therefore who (which institutions) should have these powers, increasingly is not taking place any longer within the framework of the provisions of the 1996 Constitution and against the background of confessions regarding our “best constitution in the world”. Furthermore, is not all about only the micro-arrangements of a constitutional discourse, namely the violation of individual rights and court judgments in this regard. It therefore is about a dispensation beyond the present, in other words the New South Africa of the past, and about what the post-New South African dispensation(s) should look like.

For clarity’s sake: It is not only about a new government replacing the current destructively incompetent ANC oligarchy. It is about a successive dispensation beyond the dispensation that came into being in the middle 1990s but now is so broken.

In the current developing discourse, the notions of federalism, self-management, self-government, autonomy, devolution of power, subsidiarity and similar concepts are gaining increasing importance – all notions that are largely foreign to and in fact are at variance with the principled foundation of the 1996 dispensation.

Federalism is enjoying specific attention. It speaks volumes about the changing political climate in South Africa, and especially about the ANC, which has lost its hegemony over constitutional thought as managed to be established in the 1990s.

In terms of the ANC’s ideology of transformatism, all power must be centred in its leadership, and it has to exercise control over all levers of power: legislatures, centres of executive authority, the judiciary, the defence force, the police, state enterprises and ultimately also the civil community and the economy. The grip on all these institutions then must be applied to enforce economic equality and public cultural homogeneity.

This way of thinking does not permit any self-government, federalism, or anything similar, since these things involve sacrificing central control. This is exactly what the ANC fears. However, owing to the ANC’s domination since the constitutional transition in the middle 1990s, these concepts have been kept out of the public discourse and it has become virtually impossible to publicly air ideas concerning federalism and self-government.

Because of the ANC’s almost ridiculous inability to govern, it also has lost its ideological sway. For this reason, the F word, federalism, has rid itself of its status of being damned, and it is increasingly becoming an acceptable and indeed attractive notion.

In Parts 4 to 7 of this discussion, aspects of self-government and federalism will be elucidated and contrasted to centralism as core element of transformatism.

4. Federalism subscribes to multiple self-government – and is democratic

Federalism stems avows the idea of self-government together with voluntary cooperation among self-governing units, each with its own public within a larger whole, in other words a voluntary association (federation) of self-governing political units.

Self-government in essence is democratic. It entails that the public of each of the self-governing units actually governs itself and rejects the idea of the public of any of the self-governing units being governed from outside.

Centralism also pretends to subscribe to self-government. However, by virtue of centralism the logic follows a different direction. It does not recognise self-governing units each with its own public, or if multiple units are indeed recognised, these units are allocated as little power as possible. According to centralism, there should in fact be only one general public (one general population) and the majority wishes of the population as a whole should always prevail, despite the fact that the wishes of the public of one or more of the units may consistently be disregarded and these publics therefore being oppressed.

The result of this is that such oppressed publics time and again will be deprived of their right to self-government.

This is precisely the complaint voiced by (the federalists of) the Western Cape. They rightly argue that the public of the Western Cape, which is differently composed from the rest of the country and also in every election vote differently from the rest of the country, is deprived of its right to self-government. Every time they are overwhelmed by the majority of the rest of the country, with the result that other people – the rest of the state population of South Africa – govern the people of the Western Cape, instead of they governing themselves.

Advocates of a centralistic point of view plead not guilty to this charge. It is argued that a large majority of the whole of the state population repeatedly support the ANC, that the ANC on behalf of the majority of the state population has an equal democratic entitlement to govern the Western Cape as it has to govern any other part of the country, in spite of the majority of the public in the Western Cape time and again decisively rejecting the ANC.

The centralistic argument is unfounded. The reason is that it defines democracy incorrectly, more specifically one-sidedly. It incorrectly associates democracy exclusively with majority government. This is a misconception, seeing that – even more than majority government – democracy actually involves self-government.

The two building blocks of democratic government, namely that of majority government and that of self-government, should be viewed in balance. If democracy is associated exclusively with majority government, it lapses into majority domination, which in principle is as undemocratic as autocracy or minority domination, because in each case it leaves part of the citizenry without self-government, reducing it to “a plead from outside the door ...”, as John Stuart Mill once put it in Considerations on representative government.

This is precisely what has been happening in South Africa since 1994. The former (white) minority domination has been replaced by (African) majority domination. This is to the detriment not only of the public of the Western Cape but of several other cultural and geographic minorities, including Afrikaners (and often Afrikaans speakers in general) whose interests are being disregarded and often intentionally harmed by the ANC government.

Federalism provides the constitutional solution to this situation. In this way the majority principle is tempered by the principle of self-government – whether self-government by the people of the Western Cape or by Afrikaners or any other minority. Federalism in this way actively ensures democracy, not majority domination in the misleading guise of democracy.

5. Federalism is true to the idea of human dignity; centralism is not

Democracy, which, properly viewed, gives expression to self-government, respects the principle of self-determination, in other words that adult persons can determine their own interests, instead of being prescribed to by others. While this principle is generally recognised with regard to individuals. it is rejected regarding communities – a glaring - the contradiction.

Regarding micro-constitutional arrangements, in other words with regard to individual rights, we see that this principle (of self-determination) is meticulously recognisedl. Consequently, constitutions include comprehensive bills of individual rights, giving expression to individualos rights. Yet, when it comes to the macro-arrangements, the exact opposite often holds sway.

Centralistic constitutional dispensations are to blame for this situation. Centralisation of political power as opposed to allocation of power to various components of the population to govern themselves according to the principle of self-government, results in the violation of the human dignity of those who are denied their right to self-government.

On close examination, such persons are not treated as adult persons, but indeed are treated as if they are minor children, subject to something similar to the instructions given by parents. It stands to reason that this is inexcusably offensive. This, however, is exactly the effect of centralistic constitutional arrangements, which not only, as explained in Part 4 above, disregard the democratic principle of self-government but also violates the basic human dignity of adult people.

This is evident of an outrageous discrepancy. At the level of constitutional micro-arrangements – individual rights – individual human dignity is recognised. At macro-level, however, where political power is allocated, centralisation not only results in some individual violations of human dignity, but also in systemic injury, since the human dignity of communities of hundreds or thousands or millions, being excluded from self-government, is violated.

Such violations are all the more serious in circumstances where central governments specifically are not competent to discharge their government functions, and those who are excluded from self-government manifestly are better capable of governing themselves than an incompetent, corrupt and badly governing central regime.

This is exactly the situation currently in South Africa where the national government is so corrupt and incompetent, in contrast with several centres of (potential) (self-) government with a proven record of competence. Among these are the Western Cape provincial government, the local government of Cape Town and several other municipal authorities as well as civil institutions such as the Solidarity Movement.

Federalism gives the constitutional answer to this state of affairs where people’s human dignity is disregarded. The people of the Western Cape, citizens of Cape Town and other municipalities under good non-ANC government, as well as Afrikaners in general or any other community, can, through self-government and federalism, escape from the situation of human undignity they have to endure owing to the directions of an incompetent central government.

6. Subsidiarity (and “correction”) and asymmetry

Federalism is anchored in the principle of subsidiarity. Accordingly, preference is given to habitative government as the natural locus of government. This means that government should be as close as possible to the home – the habitative community. The habitative community is best acquainted with their own situation and interests. Consequently, they themselves should as far as possible form government institutions and govern themselves. More remote governments, located further away from those directly affected by it, therefore are not to interfere in the affairs of closer habitative communities and their governments.

This applies not only to government functions that usually are associated with local or provincial government, but in principle to all other functions.

When habitative governments find it difficult to perform a government function, it is the more remote government’s first responsibility to help ensure that such function can indeed be performed by the habitative government. Only when it is obviously impossible for a habitative government to perform a function, it may be transferred upwards” (Afr. opwentel) to a government that is capable of performing such function. As the point of departure (the default position), however, government functions always are vested at the most habitative level.

They are vested there unless and until upward transferral of such power appears to be essential. And upward tranmaferral is temporary in principle: government authority remains tranmsferred upward only insofar as it is essential and for as long as it cannot be devolved. As soon as it can again be performed at habitative level, it must be devolved.

It is obvious that self-government and human dignity are closely woven together and, as it were, mutually imply each other. This means that people must be able to decide autonomously on the public affairs affecting them. Self-government, in turn, is associated with the principle of human dignity.

Decent behaviour requires that adult people capable of thinking and decising for themlseves, should not be subject to directions of other people. Coercion and directions that restrict people’s autonomous ability to decide on their own affairs constitute a hurtful objectivation of such people and a violation of their human dignity. Basic human dignity, self-government and subsidiarity therefore are three closely linked and mutually implying principles.

Self-government and subsidiarity, from a federal point of view, do not mean sovereignty. It does not mean that the government of a self-governing unit may always do procesly as it wishes. What is aimed at here is balance. To this end, the principle of Correction should be useful.

On the one hand, Correction implies that certain decisions that could be made and executed comfortably at habitative government level, still are impermissible if they could unduly affect individual immunity and freedom, and so could lead to a totalitarian intervention in the private affairs of individuals.

On the other hand, the private claims of individuals cannot extend so far as to inhibit the habitative government’s authority to protect the integrity of the habitative community. There is no simple formula for adequately dealing with this tension. It is something that must be decided on by sound political judgment in each case. However, there are three aids that may be suggested for maintaining this balance.

The first is that political decision-making should take place based on an open political decision-making process throughout. When specific individuals in particular could be affected by a decision, their views on the matter in question should be taken into account and should be reflected in the decision. This boils down to application of the well-known principle of natural justice, namely that of audi alteram partem.

The second extends another principle of natural justice, the nemo iudex in sua causa principle that usually applies only to judicial and administrative decisions, to the domain of political decision-making. In terms of this, political decisions by dominant political decision-makers in their own interest are impermissible.

In the third place there must be a jurisdictional presumption in favour of the authority of the habitative governments so as to protect the self-governing integrity of habitative communities.

Not all communities can govern themselves equally well. There is a wide spectrum of some habitative communities that are capable of governing themselves to such an extent that no assistance, intervention or direction from any more remote government is required or desirable, and where remote governments in terms of the principle of subsidiarity have the obligation to leave habitative governments and communities well alone.

But there also are other communities with habitative governments that cannot do the work and obviously are incompetent. More remote governments therefore have to intervene and accept responsibility for the failed habitative governments until such time as those habitative governments appear to be able to assume their habitative government responsibilities.

In such situations, where a wide variety of habitative governments are found in one constitutional dispensation, the extent of allocation of political authority to each habitative government should be determined based on each one’s specific ability to perform government functions.

They cannot be given similar treatment because they are not similar. In view of their diverse abilities to self-government they should indeed be treated in a diverse way. It is in this context that the standard federal principle of asymmetry comes to the fore. In terms of this principle, federating units are allocated more, fewer or no functions, depending on every unit’s ability to govern itself.

While the terms “subsidiarity” and “asymmetry” do not appear in the 1996 constitution, there are provisions showing traces of them. Such provisions include those that provide for provincial and national intervention in cases where local authorities are unable to perform their government responsibilities.

These provisions gradually are being applied to an increasing extent where numerous local governments collapse, and in cases where provinces are unable to intervene in failing local authorities and in fact also are unable to properly govern the provinces in question.

This is in stark contrast with other provincial and local governments that obviously are governed excellently. In these cases, the national government should refrain from intervening in the affairs of the provincial and local governments in question; on the contrary, since such municipal and provincial governments obviously are governing much better than the national government, national functions should be devolved to the provincial and local governments concerned to enable those provinces and municipalities to be governed even better.

In this regard it has been argued convincingly that the municipal government of Cape Town (and several other local authorities) as well as the quality of governance of the Western Cape are much better than that of the often-failing national government. In such instances, maximum government functions, including functions usually associated with national government, such as policing, rail transport and others, should be transferred to such well-performing provincial and local governments.

Apart from constitutionally recognised spheres of government, spheres of effective informal civil government have also appeared in recent years. Consequently, functions that organs of state fail to perform properly are of necessity being taken over by such informal civil institutions. These include civil institutions such as AfriForum as well as other civil and business formations (individual businesses and networks of businesses). They have been taking over functions that local, provincial, or national government no longer can or want to perform but that nevertheless are essential for an orderly society.

7. Self-government precedes a federation; not vice versa

In principle, a federal dispensation – a federation – functions based on self-governing units that, with a view to longstanbding cooperation, form a constitutional order with an overarching (federal) government. Specific general government functions then are entrusted to the federal government – transferred upwards – which are exercised on a federal basis for the benefit of the federation as a whole and of each unit.

The active agents that create a federation are the self-governing units. The federal government therefore derives its powers from the self-governing units, who entrust these powers to the federal government. Consequently, the source and origin of the power of the federal government are the self-governing units.

Should the federal government appear to be unable to perform its government responsibilities, any of the self-governing units able to perform such responsibilities better than the federal government, should have the right and obligation again to assume those responsibilities.

The self-governing unit exercises the right of resumption of the responsibilities towards the federal government because the transfer of the powers concerned to the federal government is conditional in the first place. The condition is that the federal government should duly perform the responsibilities transferred to it and, more specifically, is better able to perform the responsibilities than the self-governing units. Once it appears that the federal government is unable to do this, the condition on the grounds of which the responsibilities concerned initially were transferred to the federal government, lapses and the self-governing unit's right to perform them itself is reactivated.

At the same time, the governments of self-governing units have an obligation towards their public to govern properly and therefore to look after the interests of their public in a proper way. In the event of the federal government to which specific powers have been entrusted, failing in the performance of those powers, the government of the self-governing unit will have an obligation towards its citizenry again to perform them itself.

This point of view obviously is in accordance with the principle of subsidiarity discussed in Part 6 above, in terms of which the natural locus of government should be at habitative level, in other words as close as possible to those affected by it.

The points of departure of centralism are the opposite. According to this view, government powers in the first instance are vested centrally. Powers may also be vested in organs other than the central government (provinces, municipalities, etc), but this occurs at the initiative of the central government, who decides to devolve or decentralise powers.

Should the central government change its mind, however, the powers may be taken back by the central government. The central government has the initiative. The units are not really self-governing; they rather have the nature of subordinate administrative units under the control of the central government.

The origin of a federal government dispensation therefore is self-governing units. In their absence there cannot be a federal dispensation. Advocating a federation without self-governing units is like putting the cart before the horse. There must be units that govern themselves, who then work towards a federation. The first step in the process of building a federal constitutional order therefore obviously is not the creation of a federal government but the establishment of self-governing units, each with its own public.

In the present South Africa, where the performance of constitutionally mandated government functions has been failing on a large scale, the establishment of self-governing units has reached a relatively advanced stage. Some of these, such as provincial and municipal authorities who effectively exercise their authority, properly use their constitutional powers. Others are civil initiatives that simply srart to discharge governmental responsibilities thus filliong the growing voids left by the government.

Unfortunately, this is not the case everywhere. There are numerous communities where, for whatever reasons, there is no initiative in this regard and where only a low quality of community life is evident. Such communities simply are at the mercy of the failing ANC government in all three spheres of government.

8. For federation every unit must have its own identity

An essential condition for the maintenance of a federal dispensation is that the self-governing units, apart from being able to govern themselves to a large extent, each must have a unique identity. This involves an own language or cultural, religious, intellectual and similar specific characteristics that result in every unit being different from the rest. This is the inspiration for having control over their specific assets and interests by way of self-government. Without such specific characteristics and unique identity there is no desire for self-government (and for uniting with other units on a federal basis).

In the current South African setup there are at least two, maybe three, entities with specific own identities and with the accompanying impulse for self-government and for uniting on a federal basis rather than as a (centralised) union.

The first is the Western Cape, which indeed has a specific identity and a proven record that this province is capable of self-government. The second one is the Afrikaners, who have an own identity and a long history of political pursuit of freedom; of whom a significant segment – probably a significant majority – prefer self-government of some kind; and who are capable of self-government, as appears from the institutions that have been established especially by the Solidarity Movement. The third potential community that may have an own identity sufficient to stimulate self-government is KwaZulu-Natal and more specifically the Zulu kingdom. This, however, at present appears not to be as strong as the two mentioned above.

In the rest of the country there appears to be few such federal impulses. In fact, owing to domination by the ANC and the poor governing ability of most of the ANC-controlled provinces and municipalities, the trend is rather more towards centralisation (and decay) instead of federalism.

9. Politics – including self-government and federalism – has particular drivers

Politics takes its course based on the interaction between ideal and material forces. The path of a constitutional dispensation – continued existence, changes and replacement – likewise depends on this interaction. This is a vast and complex theme. Suffice it to make some relevant remarks.

According to a purely ideal view of the course of politics (and of history), the course of (political) history is determined by ideas – religious beliefs, ideology or similar views. Consequently, the battle of ideas first must be won; then the material aspect will follow and the situation on the ground will change in accordance with the new dominating idea.

According to a purely material view, however, attention should be dedicated

exclusively to material issues – the situation on the ground. So, simply apply brute force to change the material position. Once this has happened, the ideas justifying (and legitimising) the new material situation will follow in accordance with the new material situation.

Regarding self-government and federalism in the South African context, the ideal perspective finds expression in that the majority among all communities all over the country first have to be converted to the ideas of self-government and federalism. Only once this has happened, efforts can start to change the actual (material) situation in the country as a whole so as to bring about a new federal dispensation for the entire country.

This view is wrong. Ideas are very important. This includes the idea of self-government and federalism, as discussed in Parts 4 to 7 above. But ideas function thanks to agents working at specific places in specific communities with specific assets and interests, bringing about actual material changes at specific places, which in this case involves self-government. Ideas that come to life in material realities – in this case forms of self-government – after all have the strongest convincing power, because such ideas demonstrate their validity in a way that cannot be denied in a sensory way, as not merely ideas but actual facts.

Applied to the field of self-government and federalism, this means that while these ideas should be argued with a view to convincing other people, the agreement of a countrywide majority is not a prerequisite before it actually can be put into operation at specific places. If this line of argument is followed, it would mean that the majority can prevent minorities from implementing their own self-government, and therefore subject them to majority domination.

Instead of this, the advocates of self-government who already have the ability to govern themselves and to introduce a dispensation of self-government for themselves, should do so as far as is practicable. The active agent therefore is not a countrywide majority that first have to be convinced – and may never be convinced. The active agent, more specifically agents (plural), are for example the Western Cape, Cape Town, other municipalities with the capacity for self-government and communities of Afrikaners with the determination and ability to implement self-government.

10. But the Constitution does not allow it

A seemingly important objection to the development of self-government and the formation of a federation in the South African constitutional order is that the Constitution does not allow it. That is correct. To a significant extent the Constitution indeed does not allow it. But constitutions, whatever their claim to supremacy may be, do not have the final say on the march of the political and constitutional order.

Many cases of actual changes to the South African Constitution have been recorded, to the extent that an actual and continually changing constitutional order side by side with the formal 1996 Constitution has come into being, in keeping with the leading political forces of the time. (See the discussion in: There is no supreme constitution – a critique of statist-individualist constitutionalism, Stellenbosch: African SUN Media 2019 65-130, in particular 93-130). The constitution and constitutional remedies and instruments are not capable of preventing this.

As the forces favouring self-government and federalism grow stronger and stronger, they also change the constitutional order and become part of the new real or actual constitution.

11. But the ANC will never agree to this

An objection similar to the one immediately above is that the ANC will never agree to this. They are, after all, strongly opposed to self-government and reject federalism unequivocally.

The ANC’s policy of cadre deployment as part of transformatism is gradually weakening the government to the extent that numerous government functions are failing. These include the guarantee of civil safety against crime, the provision of electricity, the maintenance of railways and roads, the maintenance of water supply, the provision of the entire catalogue of municipal services and many more. The responsibility for the provision of these services currently is migrating to a range of other, mostly civil, institutions. These are the institutions that are increasingly becoming self-governing.

The ANC government and relevant organs of state would have none of this. In fact, it is causing panic among them, because the effect of the migration of functions is that they – the ANC – are governing over less and less. This is totally contrary to the ANC’s centralistic DNA and therefore causes anxiety among them. For this reason, there sometimes are frantic attempts to try and prevent migration. One such example is the attempt to prevent four Northern Free State towns from supplying their own solar power.

Occasionally such efforts will succeed (temporarily). Ultimately, however, the trend of weakening of the government and strengthening of civil communities and self-government will simply be too strong for the ANC’s anxious resistance to succeed.

12. In conclusion

South Africa finds itself in a rapidly changing constitutional situation. The one common denominator is the weakening of the government and the inability of organs of state to perform a growing number of government functions. Furthermore, the pattern is widely divergent.

Many parts of the country are simply lapsing into a situation of state withdrawal and absence of government, with nothing coming in the place of the state that has withdrawn. Then there is a spectrum of good government in the Western Cape, where the Democratic Alliance visibly is producing government of good quality, as well as several local authorities under competent opposition control. There also is an enormous civil sector that is simply taking over a range of government functions, exercising de facto government.

The net effect of this is that the proper constitution increasingly is changing towards self-government – and federalism. The Constitution and the ANC ultimately are unable to do anything about this. Finally, the Constitution – any constitution – merely provides a definition of the powerrelations at the time when it was passed.

It claims to determine the future and tries to do it, but it cannot. New political realities and relationships of power emerge, as now appears with the decline of the South African state and the rise of the trend of self-government. These new realities are confusing and disrupting the old constitutional arrangements – those of 1996 – and result in new constitutional orders arising, at least in patches, where the potent forces favouring self-government are exerting themselves.

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This article was initially published in Afrikaans on Litnet.

Prof Koos Malan is a constitutional jurist of Pretoria.

His publications include: Politocracy – An assessment of the coercive logic of the territorial state and ideas around a response to it Pretoria: Pretoria Univ Law Press 2012 (Also in Afrikaans) (The publication is freely available on the internet);

There is no supreme constitution – a critique of statist-individualist constitutionalism Stellenbosch: African SUN Media 2019.