The false gospel of the Constitution (I)

Koos Malan writes on the shacky foundations of the South African Rechtsstaat

This is the first in a weekly series of six articles by Koos Malan based on his newly published book, “There is no Supreme Constitution – a critique of statist-individualist constitutionalism”.

The best Constitution and the constitutional gospel

A gospel is a distinctively religious matter. Hence, to talk of the the existence of a constitutional gospel, is to suggest the Constitution is viewed in religious terms. This is precisely what has happened to the South African Constitution which entered into force approximately a quarter of a century ago. The Constitution was hailed as a redeemer – a redeemer from the evil past of division, suffering, animosity, strife, struggle and destruction and a saviour that would usher and guarantee peace, reconciliation and the protection of the rights of all.

That was the solemn message conveyed by the Postscript to the Interim Constitution, the Preamble to the present Constitution, and it is also a message that has been regurgitated many times by the Constitutional Court.

The gospel orates a blissful faith in the Constitution. In essence the gospel proclaims that individual rights encapsulated in the supreme and entrenched Constitution, interpreted by impartial courts, which also act as an effective check on a powerful government, are a fool-proof guarantee for a benevolent constitutional order, which includes the protection of the interests of all – including minorities.

In section 2 the Constitution proclaims its own supremacy. Accordingly, it was forcefully asserted that everything, including all legislation and governmental conduct would live up to the Constitution.

Encompassed in the Constitution’s supremacy is its stability; the Constitution would be our everlasting guardian. Accordingly, the Constitution can be amended only on compliance with strict requirements, ordinarily with the support of at least two thirds of the members of the National Assembly and at least six of the nine delegations in the National Council of Provinces.

Not only is the Constitution supreme and stable. It is also distinctively caring, guarding all our interests. The Constitution’s care is primarily forthcoming from its splendid bill of rights canonised in chapter 2 of the Constitution. Moreover, the individual rights sanctified in the bill of rights are encompassing, safeguarding all interests conceivable. Besides these exhaustive catalogue of guaranteed rights, nothing more is needed.

But what happens if things go astray? When an unfaithful government deviates from the Constitution; when it acts beyond its powers, or when an organ of state (or anybody else) disregards these rights? The Constitution’s answer is forceful and emphatic. It – the Constitution – has powerful, independent and impartial bodies and mechanisms effectively taking care of such scenarios.

Most important among these are the independent and impartial judiciary with the Constitutional Court at the pinnacle, which corrects such wrongs, thus ensuring that everything would conform with the supreme Constitution.

The courts, especially the Constitutional Court, is a reliable check on and balance against a power-abusing ruling party, regardless of how strong it might be and is the steadfast guarantor for all our rights and interests.

An orthodoxy consisting of a circle of selected constitutional lawyers, politicians and a commentariat-coterie of selected media activists preached the constitutional gospel in suitably accompanying evangelical language. This glorification was tireless. The evangelical crusade did a great deal in inculcating the redeeming message of the constitutional gospel:

The Constitution is entrenched; it provides guarantees; its rights are in fact guaranteed, even enshrined rights.

And obviously, the Constitution as often called in legal literature is the final Constitution: It is enduring. Therefore, we can not only for now, but permanently invest trust in its guarantees, assured of its care for all posterity.

Things can also not really go astray. Hence the evangelical language asserts that the law takes its course. The law cannot be disrupted, it takes its course, because remember, thanks to the Constitution we now have a law governed state (Afrikaans: regstaat) in which the law reliably reigns supreme, thus bringing to a close the volatile will of people – of politicians, the government, the ANC or whatever powerful grouping of people.

-  Evangelical language specifically obtains to the judiciary. Hence there is no basis for dreading that the judges – also the justices of the Constitutional Court – would be politically biased or partial, thus jeopardising our guaranteed rights. Such fears are dispelled by the supreme Constitution itself guaranteeing the independence and impartiality of the courts. Precisely thanks to the courts our guaranteed constitutional rights are certain to be victorious, because the gospel also asserts that the judiciary is the supreme protector (Afrikaans: opperbeskermer) of all our rights and the infallible check and balance against a power hungry and power abusing government.

It is crucially important to highlight two essential pillars upon which the entire edifice of the constitutional gospel is built. These are the state (in the sense of the government) as the monopolising centre of political power on the one hand, and the individual with individual rights on the other. These two form an exclusive consortium, purporting that these two things form the basis for a fool-proof constitutional order.

In asserting this exclusive twosome consortium, two additional and equally crucial prerequisites for a cogent constitutional dispensation are excluded. The first are communities (in addition to individuals); the second is powers vesting in communities (in addition to individual rights).

These two factors, consistently ignored by the constitutional gospel are for two reasons essential: first, because democratic government, especially in a heterogeneous set-up is impossible without it, and secondly, because government cannot effectively be checked and balanced by individuals, no matter how many rights they may formally have. Only autonomous communities and formations of civil society vested with autonomous powers can act as effective checks and balances.

Being a gospel, doubt in the gospel is frowned upon as apostasy and therefore not easily tolerated. Such doubts have been viewed as something tantamount to heretic provocation and the heretics not tolerated in the public domain. However, the truth is not that easily suppressed. After an inexorable history of a quarter of a century it is now incontrovertibly obvious that the South Africa’s constitutional gospel was in fact false and the Constitution manifestly flawed.

The once exuberant exaltation of the constitutional gospel has largely waned to be replaced by timid excuses for why things have gone wrong.

No, goes one excuse, in essence – on paper – the Constitution is laudable and the gospel truthful. Its only that the Constitution is betrayed by bad application. Or, in the same vein it is conceded that some judgments of the courts are in fact wrong. Yet, goes this particular excuse, that is not the fault of the constitutional order. That is only the fault of the court failing to grasp and to give effect to what the true intentions are.

These excuses are baseless. Moreover, these excuses forfeit the very claim of the supremacy of the Constitution because if there is a real and actual Constitution that can be sent astray by the aberrations of its appliers and interpreters, it follows that the Constitution was after all not supreme as claimed by the constitutional gospel. Then the crucial concession is made that its appliers and interpreters are disrupting the Constitution, thus forfeiting the very notion of constitutional supremacy.

And when the courts deliver judgments that deny instead of uphold rights, it follows once again that the perceived supreme protectors of rights are disrupting the Constitution. This once again forfeits the very idea of the supremacy of the Constitution. Moreover, owing to the courts in this scenario failing to protect rights, the Constitution also proves not to be the as caring as the gospel promises.

Having concisely dealt with the gist of the constitutional gospel in this article, its fallaciousness will be enunciated element by element in the next articles. Towards the end in the last article the way to a better dispensation is briefly attended to.

In the second article next week the claim that the Constitution is supreme and stable is debunked. It will be shown that the constitution changes all along. The written and seemingly supreme Constitution consists of a complex of formulations. However, these formulations often do not have any real-life effect in daily practice. On the contrary, due to the effect of potent political forces an (entirely) different, yet largely unwritten actual constitution arises.

In the third article this point will demonstrated with reference to practical examples from South Africa’s own realities. The explanation will show what the actual and real South African constitution looks like, that is the constitution that has come about in place of the partially lapsed so-called supreme Constitution. It is quite remarkable to what extent the written Constitution has surrendered in the way of a different, actual constitution that has established itself in the place of the written Constitution.

Thereafter, in the fourth article it will be shown that there is in fact much less to the notion of the threefold separation of powers (the trias politica) and that the judiciary falls way short of the effective, independent and impartial institution claimed by the constitutional gospel. On the contrary, it will be shown that the highest courts, together with the majority in parliament and the executive ordinarily are an integral part of one and the same governing elite, playing its own distinctive role in achieving the ideological objectives of such elite.

Yet, the question may be asked if the bill of rights does not decisively come to our rescue. Do the provisions of the bill of rights not emphatically enjoin the courts how they should decide the rights issues that come before them? The answer to this question is provided in the fifth article. The answer is that constitutional provisions, more in particular the provisions of the bill of rights do not have inherent, stable and objective meanings.

They acquire meaning only once they are interpreted by the courts. And those meanings are determined by the dominant ideology of the ruling elite, of which the highest courts are an integral element. In present-day South Africa transformationism is the dominant ideology, with the ANC taking the lead in the governing elite. The courts interpret constitutional provisions in the revealing light of this ideology and accordingly ascribe meanings to these provisions.

Thus viewed it should be clear that contrary to the claims of the constitutional gospel, the courts are in fact not impartial. They are biased in favour of the dominant ideology. This point will also be enunciated with reference to practical experience over the last decades with the courts – specifically the transformationist interpretation of the Constitutional Court.

The last article focusses on the ways towards improvement of the present constitutional order. We have to go beyond debunking the claims of the constitutional gospel. In present conditions in South Africa, the way towards a better dispensation is in fact gradually getting clearer.

The book on which this series is based is published by African Sun Media and is available, amongst others, in Protea Book Shop stores. It may be ordered directly from the publisher or from Takealot: Google Books: ITSIFacebook ShopAmazon Kindle: or Pinterest