Many of the obituaries of F.W. de Klerk were rather bad-tempered and some were downright spiteful. It seemed to stick in the throat of many people to have to acknowledge that he did an extremely brave and transformative thing by opting for a full and peaceful transition to democracy as soon as he became President. To dwell on his preceding career as an apartheid apparatchik seems perverse in the light of such a bold and complete reversal.

No one seemed to recall that Jesus said there was more rejoicing in heaven over each sinner that repents than over any number of conformist Christians. And the point is germane: F.W. was an extremely religious man. He changed his mind because he came to the view that apartheid was immoral and he had the guts to stand up and admit that he had been morally wrong.

What history’s verdict on F.W. will depend on what happens in the next decade or two. Currently it looks like the New South Africa is heading for failure. If fail it does, the ANC will inevitably get most of the blame but there will also be a re-examination of the constitutional deal that was reached – and which has De Klerk’s fingerprints on it.

The 1996 constitution is routinely praised as a splendid document but it is surely already clear that it was a bad mistake. As followers of Arend Lijphart pointed out at the time, to come up with a winner-takes-all form of democracy in a multi-ethnic state was bound to lead to trouble, with the victorious ethnic group simply dictating to all others.

If apartheid proved anything it was that that model didn’t work in South Africa. You couldn’t govern without the blacks or, indeed, against the blacks. What has happened since has shown that you also can’t govern without the other groups or against them either.

You absolutely have to have a form of power-sharing which guarantees minority rights so that all groups feel they have a fair crack of the whip. Only then will they feel that they have a strong vested interest in making the system work. And it is crucial that the system is able to draw on the talents of all groups.

In that sense, F.W. made a bad error, in good part because he was a lawyer and trusted far too much to simply drawing up an agreed legal document. This hasn’t worked: the ANC has simply disregarded the letter or spirit of the constitution whenever it wanted to and it has had no difficulty in packing the Constitutional Court to ensure it can get away with that. Indeed, to a very large extent the ANC has simply rebuilt the old apartheid system.

The old apartheid racial categories are used as the basis for everything, there is job reservation for black cadres, hate speech is allowed against the minorities but not against blacks and so on. The laws are applied very selectively, language rights and property rights are disregarded, the government is trying to dictate to the private sector whom it may employ and there is grotesque racial favouritism in the form of BEE.

To be fair, F.W. did want power-sharing but he quickly tired of fighting for it. In the end all it meant was that the ANC had to put up with having a number of NP ministers in the cabinet for two years. They were easily by-passed and over-ruled and some of them even joined the ANC, so keen were they to ingratiate themselves with the new men of power.

What was lacking in the 1996 deal was a territorial dimension, which in turn depends on a much stronger degree of federalism. A good example is Canada. The French-speaking minority felt that its culture and language was being disregarded and as a result Quebec separatism became a major force.

If Quebec seceded that would mean that the whole system, indeed Canada itself, would have failed. That threat was so fundamental that major concessions were made. Bilingualism became the rule not just in Quebec but right across Canada. French Canadian politicians achieved a new prominence – Pierre Trudeau and then his son both became prime ministers. And in general Canada took steps to live up fully to its Anglo-French culture and history.

All this happened because French-speakers had a strong territorial base. This enabled them to say “If you do not address our grievances satisfactorily then that means the whole system has failed and we will depart.” In South Africa the analogy would be if the attempt to abolish Afrikaans at Stellenbosch university led to the possible secession of the Western Cape.

The Western Cape has an Afrikaans-speaking majority, after all, which will be strongly disadvantaged if Stellenbosch disregards that fact. There is no doubt that such a threat would guarantee that language rights really would be respected.

Similarly, if the Western Cape (or any other province) said it had no wish to stay in a South Africa if property rights were no longer to be respected there, this would probably dissuade Ramaphosa from legislating EWC. But the power of this veto depends on the territorial base. A constitution – a mere legal document, a piece of paper – has no such power, particularly when the Constitutional Court is, and always has been, full of ANC patsies.

If federalism was the missing ingredient of the new constitutional order, the missing economic ingredient was privatization. Given the terrible record of SOEs throughout Africa – everywhere they are sinks of corruption, overmanning and incompetence – it would have been vastly preferable if all the major SOEs had been privatized before major political changes were made. Had that been done then South Africa’s ports, railways, post office, power generation etc - would all have been in a vastly superior state today.

However, for that to have been the case then these major changes would need to have been carried through and bedded down under P.W. Botha, before De Klerk came to power.

De Klerk’s situation was that on the one hand the fall of the Berlin Wall and the collapse of Communism created an opportunity for major change in South Africa without any prospect of Sovietization. At the same time, he was under enormous pressure for immediate change: Thatcher was frantically signalling that she would not be able to hold out any longer against major sanctions against South Africa.

So when De Klerk came to power he had to cross his Rubicon immediately. That precluded major structural changes like federalism or privatization and meant he could only negotiate a new Constitution – just a piece of paper.

However, to say that P.W. Botha should have made these major changes is a stretch. To be fair to Botha, his predictions of what an ANC government might look like – the corruption, the ideological blinkers, the disregard for law – were pretty accurate and he also predicted that before long an ANC government would be paralysed by factionalism.

So, for him to carry out the major changes above, we would have to imagine that he would visualise a future in which the ANC came to power and largely destroyed South Africa but that he could at least prevent the worst by forcing through federalism and privatization pre-emptively. It was just much simpler for Botha to say that in that case the ANC must never come to power.

In any case, once one admits that to achieve proper power-sharing fundamental changes would have needed to happen before De Klerk came to power, one is caught in a game of infinite regress. Imagine, for example, if the Separate Universities Act (1959) had not been passed and a steady flow of Africans had been able to graduate from the English-speaking universities. This would have created an educated black middle class which would have greatly eased political change. But one could go on with such games of “what if...?” indefinitely and there is no point. Nowhere in Africa did white settler populations adopt enlightened policies aimed at smoothing the eventual hand-over to the black majority.

So, there is no point in denouncing De Klerk for his previous apartheid career or for achieving only a very defective settlement. It was South Africa’s good luck that it has a leader willing to make such a huge reversal. This did not happen in Algeria, Mozambique, Angola, Kenya, Namibia or Rhodesia. Nor is there much point in the myriad studies of the negotiations which led to the transition. This is all so much water under the bridge. But what is eminently worth studying is why the transition was so flawed that it has led us fairly quickly to the situation in which we now find ourselves: a corrupt country, virtually without growth, without law and order, with mountainous unemployment and where very little works. This is not a viable or sustainable situation.

The point is that this situation cannot and will not go on. The ANC is collapsing and so is the state. Everything suggests that before too long we are going to have to acknowledge that the settlement reached at Codesa has failed and that we need to think in terms of a Second Settlement.

We have to admit that almost all our institutions have failed. Parliament has failed over and over again. It failed to investigate the arms deal, it failed to stand up against Mbeki’s Aids denialism, it supinely allowed Zuma to build his Nkandla residence and to hand over the state to the Guptas. The cabinet has also failed. Ministers do what they like, there is no proper cabinet government. The Constitutional Court has been clearly biased, has failed to stand up for language rights and the mode of selection of its members is an open scandal.

The Presidency has had one occupant who didn’t even bother to sit through cabinet meetings or give any direction to policy, another responsible for tens of thousands of deaths, yet another who handed the state over to crooked businessmen and currently one who often seems barely in touch with reality at all. The National Prosecuting Authority seems wholly incapable of fulfilling its mandate. One could go on but there is no need.

If we are to have a second settlement many will assume that means a second Codesa and a new Constitution drafted by squads of lawyers. But that whole way of proceeding is exactly what has failed. Our Constitution was drafted as if we were Sweden and it has been found out because our realities are African.

We have now seen what our failings are and we need to draft a new settlement in the way that De Gaulle drafted the Fifth Republic constitution. He had seen exactly what had gone wrong under the Third and Fourth Republics and drew up a document intended to checkmate exactly those failings. It would probably be wise to begin not with lawyers but with political scientists familiar with power-sharing constitutions. Happily, the fervour and fanaticism of the early 1990s have now spent themselves and we should be able to proceed in a more sober atmosphere.

It will soon be 32 years since De Klerk’s famous speech of 2 February 1990. That is still not long. If we manage to negotiate a Second (and more satisfactory) Settlement it is possible that we will gain sufficient perspective to judge De Klerk properly.

With Codesa and the 1996 Constitution by then in the dustbin we shall then be able to make a judgement free of considerations of the flaws in the First Settlement. We will have to acknowledge that many of his mistakes were made because he was a lawyer, because he was such in a hurry and because his predecessors had left him such an impossible hand to play.

What will be left is a man with a strong moral sense who, in his own way, loved his country and was brave enough to stand up against all the doctrines and history of his party in order to help the country adjust to inevitable change. As a result he was able to prevent the descent into civil war and thus to save countless lives. This cost him the presidency and the rest of his career but it meant that a new era could begin in a spirit of goodwill.

The settlement he reached was badly flawed but probably any settlement reached under the frantic circumstances of those years would have been. He simply did the best that he could. He was, moreover, incorruptible – no small virtue in Africa. The Romans, when regarding the life of a statesman, would always ask whether “he deserved well of his country”. Whatever his faults and failings it seems clear that De Klerk passed that test.

R.W. Johnson