Societal Constitutionalism in the Place of the Moribund State

The post-1994 constitutional order was vaunted for its splendid promise of justice and guaranteed system of checks and balances, thus purportedly truly embodying the idea of constitutionalism. However, for South Africa to succeed a new kind of constitutionalism, one rooted in society and not state institutions, must emerge.

Constitutionalism and justice

Constitutionalism, on close analysis, encapsulates the quest for justice for all – for all individuals and communities in the polity – regardless of the polity being in the guise of a tribe, city-state (polis), the modern territorial state, an empire, or however one might conceive of it. The pursuit of justice commands the exercise of public office so that governance shall be for the benefit of all instead of merely for segmental gain, be the segment an autocratic (circle), a ruling minority, or a dominant majority.

Power concentration and abuse

The abuse of power is justice and constitutionalism’s eternal challenge. And the menace of abuse is particularly scary when power slants toward the absolute, that is, when it becomes unrestrained. The answer of modern-day constitutionalism, which is essentially statist constitutionalism, is to meet this challenge with structures of power-limitation through a system of checks and balances; and to secure correction whenever abuse and malfunctioning occur. And when power is balanced and controlled, the constitution’s promise of justice will materialise.

Statist constitutionalism

In accordance with the teachings of statist constitutionalism, checks and balances (must) operate within a system of trias politica, that is, power separation between the legislature, executive, and the “independent, impartial and effective judiciary” equipped with comprehensive review powers over all action, especially that of the legislature and the executive. A prosecutorial authority that acts without fear, favour, or prejudice is regarded as a requirement that forms part of the broader judicial system.

This system is augmented by what in South Africa is called independent and impartial institutions for the promotion of democracy under chapter 9 of the Constitution.

To this must be added provisions dealing with the public service, police, and the armed forces, all formulated towards power control and the achievement of the public good.

The South African constitutional system also has provincial and municipal governments, which leads some even to proclaim the constitutional order to be quasi-federalist.

In South Africa, the role of commissions of inquiry has lately become so important that they warrant specific mention as an important element of South African constitutionalism.

Above all, the South African constitutionalism boasts a glorious comprehensive catalogue of entrenched constitutional rights over which the Constitutional Court keeps the final guard. The African National Congress (ANC) was specifically proud of the inclusion of socio-economic rights, including health care, food, water, housing, social security, and educational rights in the Bill of Rights. These rights are said by their proponents to embody the constitutional promise of justice. If, according to the words of the constitution, these rights are in fact respected, protected, promoted, and fulfilled, South Africa does indeed deserve the unprecedented accolades for its “best constitution in the world”, which have long echoed from admiring corners of the world.

Finally, the entire system is sustained by the principle of constitutional supremacy, purportedly safeguarding the constitution from legislative tampering.

The failing of statist constitutionalism

However, the envisaged checks and balances of the South African constitution are not functioning as intended, and the glorious promise of comprehensive justice is faltering.

• The executive, especially in a one-party-dominant system, has proven too strong to be kept in check and come under effective oversight by the legislature. Moreover, the executive, which is made up of the leadership of the ruling party, cannot really be kept in check by its junior members in parliament. Since the formation of the Government of National Unity (GNU) in June 2024 and the accompanying strengthening of opposition parties, especially the Democratic Alliance, parliamentary control may perhaps become a more potent check on executive power than before. However, the weakening of the public service and systemic corruption limit the ability to correct governmental malfeasance – the very purpose of checks and balances.
• Aside from its theoretical independence, the judiciary is practically dependent on the executive for protection and for giving effect to its orders, failing which judicial orders are no more than judicial yearnings. Moreover, judicial appointments are, in the final analysis, in the hands of the ANC, which enjoys a standing majority in the Judicial Service Commission (JSC), thus ensuring that favoured (transformationist) candidates are appointed to the bench. The GNU has not changed this. Of crucial importance, yet on which the doctrines of statist constitutionalism are silent, the highest courts are, together with the majority party in the legislature and the executive, an integral part of a single dominant power elite committed towards the achievement of the same ideological goals, namely that transformationism, also known as the national democratic revolution. In this capacity, the highest courts act to a great extent as the judicial legitimisers of the ideological project of the power elite, marshalling legal jargon to justify and promote these ideological commitments. Although the courts on many occasions rule against the executive on matters relating to corruption and state maladministration, questions pertaining to transformationism are almost without exception decided in favour of transformationism, that is, furthering the governing elite’s ideological goals. Numerous judgments of the Constitutional Court prove this point.
• Provincial and municipal governments are structures of power outside of national government. They can to some extent counter national power concentration when opposition parties are in control, thus giving them a separate identity, which, as Carl Friedrich once highlighted, is a prerequisite for genuine federalism. However, if the same party is in control everywhere or if provincial and municipal governments are ineffectual and necessitate national government to intervene, they become part of the problem of power concentration, instead of a counter for it.
• Commissions of inquiry allow useful information on state malfunctioning to be brought to light. However, as the aftermath of the Zondo Commission clearly demonstrates, corrective measures – one of the crucial aims of checks and balances – are few and far between if at all. This is the consequence of political reluctance to take such action, as well as the incapability of the relevant state institutions, including the seriously compromised police and the directorate of public prosecutions.
• And what about individual human rights – statist constitutionalism’s splendid state-guaranteed promise of justice? Endemic governmental failures, including bad policies, corruption, neglect, and consequent crumbling of infrastructure, cause large-scale failure to safeguard people and their property, and create major impediments to water access, health care, and other socio-economic goods which decades ago were the pride of the constitution’s caring human rights regime. The common denominator of all these failures of justice and checks and balances and their dire consequences in terms of power abuses and rights infringements is that they are all instances of the defects of South Africa’s statist system of constitutionalism.

Genuine societal constitutionalism

What this brings to light is that we must thoroughly reconsider the way we conceive of constitutionalism. We must look beyond institutions of the state and statist constitutionalism for promoting justice, securing important social goods, and guaranteeing checks and balances. This is not to say that the state is of no importance for constitutionalism. Yet, constitutionalism and the structures if offers, as the history of the last several decades in South Africa also incontrovertibly shows, can fail dismally.

Society in general, and not only statist institutions should be the comprehensive basis of constitutionalism – a comprehensive societal constitutionalism. To secure constitutionalism we must look at the civil and private sector, a dense network of institutions of civil society, autonomous communities, and non-governmental organisations, as well as private business big and small. All these are in the final analysis the indispensable ingredients of sound societal constitutionalism.

In conditions in which the statist edifice of constitutionalism falters, as in contemporary South Africa, these become the core ingredients for a sound societal constitutionalism that comes to replace, to a greater or lesser degree, waning statist constitutionalism.

Constitutionalism is not the exclusive domain of the state. Constitutionalism is as comprehensive a concern as justice and is therefore a matter for all of society, not only for institutions of the state.

The belief that the state is necessarily the primary actor in constitutionalism is a product of the statist constitutional paradigm – a paradigm of approximately three and a half centuries – which is ultimately only one of a variety of ways to approach the constitutional question. A societal paradigm of constitutionalism is a viable, and in many places, including present-day South Africa, necessary substituting paradigm for constitutional theory and practice.

Societal constitutionalism is premised on at least two pillars. First, it is based on a rich collection of institutions of civil society – civic, business, and others, mentioned above, with an independent and entrepreneurial spirit, willing and capable of representing and serving a wide array of needs of the populace. Secondly, it must be rooted in secure private property, which is the material basis enabling these institutions to act autonomously, serving society and in so doing discharging their constitutional responsibilities.

This is the lifeblood of genuine constitutionalism.

Anathema

At the same time, societal constitutionalism is anathema to the arch foe of constitutionalism, namely overbearing totalitarian regimes with their natural aversion to pluralism and private property.

These regimes usurp as much property as they can get away with through taxes and other mechanisms of extraction for oligarchic gain and can render an active citizenry docile and dependent on handouts from the omnipresent, powerful, therapeutic state.

At the time of writing, there have seemingly emerged rays of optimism in South Africa after a long and dismal period of decline. This optimism was recently rubberstamped in a widely publicised analysis by Dr Adrian Enthoven.

To be sure, his analysis is not without substance. It even tallies with elements of societal constitutionalism because the rays of optimism in Enthoven’s views are, to a considerable degree, essentially thanks to the constructive involvement of the private sector in South Africa’s state-neglected logistics and energy sectors. By contrast, many sectors are still experiencing dismal failure where the state exercises virtually exclusive control, such as the public service, municipal government, and the combat of organised crime.

Societal constitutionalism is clearly showing the way to a better order in South Africa. We are fortunate to have an excellent supply of societal capability over a huge spectrum of activities in the form of an energetic and resourceful civil society and private businesses capable of giving body to this societal constitutionalism beyond the moribund state.