Further to the cherished constitutional salvation doctrine
22 May 2023
My article No longer seen as saviours of 11 May, the original Afrikaans version of which appeared on 30 April in Rapport was met with intense debate to which I replied in Rapport on 14 May. The slightly amended English version of the reply follows below - Koos Malan.
I welcome the reactions to article, more particularly the sentiment that suggestions should be made to improve the present constitutional dispensation, of which the shortcomings are increasingly apparent.
However, improvement and correction of the present dispensation can hardly begin while the need for such improvement and correction is still denied, or while the mantra that we have “the best constitution in the world” is still mindlessly echoed. I have argued that this mantra is founded upon a constitutional soteriology – a doctrine of salvation – relentlessly pontificated since the advent of the constitutional transition in 1994.
According to this doctrine, the history of South Africa prior to the present constitution was essentially evil. The constitution brought that evil to a close and embodied a redemptive transition towards a new world of guaranteed and entrenched human rights, democracy and peaceful co-existence and development opportunities for all. I have dealt with the primary features of this doctrine in my initial article, and I won’t expand on it here.
The South African doctrine of constitutional salvation is a species of the wide-ranging modern phenomenon of secularised theology, which is often prominently at work in political life. This entails that religious archetypes are implanted on political convictions and ideology, resulting in political ideologies acquiring the character of a doctrine of salvation with a distinctive religious character.
Consequently, we are not dealing with the propagation of mere ideology anymore. No, we are then confronted with a salvatory doctrine, enrobed as religion, being preached and pontificated. The founding documents of ideology here also assume the character of a holy text with its own articles of faith, by this new nature far more difficult to challenge than ideology. Whenever the truthfulness of the articles of faith is denied, it amounts to nothing less than heresy, calling for eradication.
During the French Revolution, a doctrine of salvation of this kind was sermonised and inculcated by the Jacobins. The Declaration of the Rights of Man and the Citizen defined the articles of faith of the salvation which would be attained under the shining new order of liberty, equality and fraternity, beyond the chains of the suppressive ancien régime. Adopting a religious imprimatur, the new dispensation would inaugurate a new era – with a new year Zero. Those suspected of denying or questioning the articles of faith, paid the highest price on the guillotine for their apostasy.
According to Marxist doctrine, there was once in the original condition a benign state of equality. Then came a fall into the evils of inequality, suffering, exploitation and successive struggles among the classes in society, inevitably resulting in a redemptive revolution, paving the way to a paradise of peace, equality and a classless society, in which nobody will lack any means of dignified living. Moreover, this salvation and recovered paradise will eventually be global.
Africanists, more specifically the local so-called Azanianists, proclaim that there once was a benevolent African paradise of ubuntu, where peace, abundance and magnanimity reigned. Then came the fall: European settler-colonists arrived, followed by apartheid, desecrating the immaculate state of ubuntu. This led to a dreadful period of inequality, suffering and exploitation. The constitutional transition, launched in 1994, was supposed to herald salvation, but would only beget disappointment. It was an enormous hoax.
Instead of bringing the suffering and exploitation to a close, it merely perpetuates it under the misleading guise of a liberating constitution. Viewed from this vantage point, the actual revolution and final deliverance still lies ahead, when capitalism and the settler-colonists will have been removed.
Liberal democracy has its own soteriology. The South African salvation of 1994 is part of that. The liberal salvation doctrine, like Marxism, also has global aspirations. Moreover, its character is distinctly more assertive. In 1992 Francis Fukuyama, in his book with the significant title The end of History and the last man, asserted the triumph of the liberal-democratic revolution.
All the challengers of liberal democracy (Soviet communism being only the most recent) had bowed to it. Liberal democracy was finally triumphant, and no alternative ideology could effectively challenge it. Here and there, there may still be a maverick dictator, or a fleeting and limited ideological anomaly, standing at cross purposes to liberal democracy. Globally, however, the argument goes, a secular heaven – liberal democracy – has dawned on us, and so the remaining anomalies would vanish in time.
Indeed, there existed one uniquely nasty anomaly: apartheid South Africa. But it was already hopelessly rickety, bound to be swept away by the supposed world-wide liberal democratic salvation.
This is precisely what happened in 1994, though only completed in 1996, when South Africa’s final and supreme constitution, meeting every requirement and more of liberal democracy’s salvation doctrine descended on us ̶ complete with its forgiving messianic leader, Nelson Mandela. And, to clarify, I do not suggest that Mandela thought of himself as a messiah, nor that he was not a humble person.
This is not the issue. The argument is concerned with what the constitutional salvation doctrine has made of him locally and internationally, namely, a messianic figure and an important element in South Africa’s doctrine of constitutional salvation.
This South African doctrine of salvation, as described in my initial article, became part of the supposed world-wide liberal democratic triumph, as dealt with by Fukuyama in his celebrated book.
The accolades that the South African constitution received at the time from pilgrims, especially from the USA and other parts of the liberal world, can to a large extent be ascribed to the fact that after a long factional struggle internally, it unexpectedly succeeded in becoming part of the supposed global democratic triumph with its “best constitution in the world”.
The world-wide triumph of liberal democracy turned out to be short-lived. Today, for example, the USA (the post-war cradle of liberal democracy) is deeply divided on ideological grounds. Thus, the end of history had never come to pass. And to the extent that South Africa today draws attention from beyond its borders, it is no longer thanks to its redeeming constitution, but owing to its spectacular failure.
In South Africa too, history has moved on, and, alas, the final constitution was not final at all. In times to come, our attention will increasingly be directed towards the development of substitute dispensations beyond the crumbling dispensation launched in 1994.
A necessary starting point is to step away from the liberal democratic (statist-individualist constitutionalism as described elsewhere) recognition of only the individual and the state.
Secondly, cultural and linguistic communities, together with their institutions, must be recognised without any external interference, and free from pressure to be liquidated -assimilated - into others.
Thirdly, these communities should be governed through their own management structures.
Fourthly, communities should create cooperative and federative networks to the benefit of each community, and for the well-being of the whole.
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;
Studente-inleiding tot die konstitusionele reg (co-authored by Ilze Grobbelaar du Plessis) Pretoria: FAK 2022.
