It should come as no surprise that uncovering the fallacies of the South African civil religion should prove to be profoundly unsettling to its dwindling adherents. This holds particularly true for its most devout votaries. It is, therefore, with a measure of condolence that I have taken note of an almost solemn homage to the Constitution (Don’t tear up the contract: Call the delinquents to account, Politicsweb, June 2, 2023), expressed by Chairman of the FW de Klerk Foundation, Dave Steward.

The focus of my exposure of South Africa’s false constitutional salvation doctrine, tirelessly pontificated since the era of the interim constitution beginning in 1994, does not concern the mounting pressure and need for a constitutional settlement at the time. White minority rule became untenable in all material respects and the need for a politico-constitutional settlement was inescapable. That is beyond debate.

Nor have I addressed the National Party’s competence or lack thereof in the constitutional negotiations. Many others, such as Professor Hermann Giliomee, have attended to that issue with sterling distinction.

Instead, I intend to scrutinise the phoney civil religion – the doctrine of constitutional salvation – that has been so fervently pontificated since that time: the soteriology of the Supreme Constitution as the saving Holy Scripture; of Nelson Mandela, the messiah of this salvation doctrine; of the Constitutional Court whence the august judicial high priesthood from the holy temple on a hill in Braamfontein would faithfully radiate the infallible word to the redeemed Rainbow Nation.

The need for debunking this false gospel does not arise from a perverse delight in disparaging the flawed constitution. It stems, instead, from the pressing need to free ourselves from a reassuring, though paralysing deceit – from the empty guarantees of the so-called supreme constitution. One may prefer to, instead, gleefully chant rote praises to the supreme instrument: its enshrined rights and its glorious values. Doing so, however, would mean ignoring the realities of political life and choosing to be oblivious to that which is unfolding around you.

One may then be led to believe, as Mr Steward seems to, that South Africa’s problems only really started in December 2007 when Jacob Zuma took the reins of the ANC. Evidently, this is not the case. 2007 was the year in which literal – not spiritual – darkness would strike, a major power outage that would prove to be only the first of Eskom’s bitter harvests of unchecked ideological missteps under the delusion of transformationism.

And when Nelson Mandela famously donned the number 6 Springbok jersey in 1997, the “national democratic revolution”, a subject about which Mr. Steward is intimately knowledgeable, had already been in the works for some time.

The onset of cadre deployment coincided with the ANC's ascension to office in 1994, regardless of what the Constitution might try to say about it. And the inappropriately named Employment Equity Act (EEA), one of the major instruments of transformationism, dates to 1998.

Clearly then, we are grappling not only with a Zuma problem and its consequences. We are faced with a toxic mixture of ANC’s neo-primitivism, transformationist ideology and its angst-inspired obsession to be fully in control. This neo-primitivsim is driven by an essentially anti-modern mindset, by virtue of which it is believed that basically everybody is more or less able to do what little there is to be done in a pre-modern setting, instead of grasping modern society’s logic of detailed specialisation.

This neo-primitivist political mindset, supported by the Leninist claptrap of democratic centralism and inspired by an agonising fear of a loss of power and authority, together constitute the root cause of transformationism – and the “national democratic revolution”. That is what explains the deployment of the legions of incompetent party cadres in all institutions, the resultant decline and demise of those institutions, and – subsequently – the gradual dissolution of the South African state.

Naturally, we must use whatever means available to fend off assaults against rights and interests, including also making use of those rights which may appear to be constitutionally protected. Independent-minded institutions assisted by astute legal practitioners have been doing so for years.

Our supreme constitution with its inalienable, enshrined individual rights, no matter how fervently revered, is, however, no counterpoise for a state structure permeated with the pernicious mindset of neo-primitivism and the ideology of transformationism.

Our statist-individualist constitution, with its enduring exclusive preoccupation in individual rights, combined with its inimical failure to recognise extensive powers vesting in communities increasingly fails to provide the answers to our challenges. This should be clear to everybody. Why then should we not seek better answers?

Wisdom begins with a clear-headed realisation that the first and foremost mission of a constitution – its macro arrangements – is to provide for an appropriate allocation of legislative and executive powers, including fiscal powers, to be vested in a multitude of centres, so as to mitigate, amongst much else, the risk of concentration of power in one centre alone as part of an effective system of power checks and balances.

It is at this first hurdle that the centralist South African constitution stumbles. As experience shows, the “independent and impartial” Chapter IX bodies fail in serving as an effective check on (central) government. More importantly, they are altogether incapable of serving as an ideological counterbalance against the ANC, precisely because the ANC determines their composition. This is a direct consequence of a constitutional defect, which assigns such inordinately weighty powers to national government.

As many judgments of the Constitutional Court have shown, you might also severely be disappointed with the courts – particularly the Constitutional Court – as a counterbalance for the central government. The essential truth is that apex courts are ordinarily integrated into the ruling regime, thus ordinarily sharing the regime’s ideological convictions. (This matter was dealt with in chapter 6 and 7 of There is no supreme constitution – A critique of statist-individualist constitutionalism as well as in the columns of Politicsweb in April 2020 in Our transformationist Concourt (IV) and in Heads we win, tails we lose (V).

The other centres of legislative and executive power also do not provide effective power balances. Provincial governments are politically mostly compounding replicas of the ANC in national government, and even less capable on an administrative level. More importantly, provincial governments lack the legislative, executive and fiscal powers that would otherwise have allowed them to be counterbalancing forces for national government.

This flows directly from the Constitution’s failure to sufficiently empower provincial government. The ongoing and commendable struggle of the DA government in the Western Cape province to secure police, transport and various other powers serves to prove the point. These are areas in which it can demonstrably govern far better – and yet those powers still vest in the national government.

Therefore, it is abundantly clear that we need a thorough constitutional overhaul to address the serious ills of centralisation in the present dispensation. The main objective is to achieve the principle aim of a constitution, namely, to establish a suitably appropriate (re)allocation of powers to a multitude of centres in the place of the currently inimical power concentration in national (central) government.

Only through this reallocation of power can we gradually start to establish real and effective power checks and balances, and it will be the first real step towards better protection of rights.

Yes, in the interim make maximum use of whatever remedies might be available. In the final analysis, however, there is no way to avoid the necessary challenge of overcoming the constitutionally imposed power centralisation. And thus no way to indefinitely put off paving the way towards suitably empowered autonomous regions and communities which govern themselves and keep the central government in check.

A constitutional dispensation made up of a multitude of centres of power is now far more possible than in the 1990’s. At the time the ANC, emboldened by its intellectual gravity, popular support, and unprecedented international backing, was undoubtedly the primary force in South Africa – and was still ascendent.

All that is now utterly passé. The ANC of today is the very embodiment of a kakistocracy, notorious for its unprecedented ineptitude, maladministration, corruption, clumsiness and governmental failure. It has been stripped of its erstwhile lustre and is devoid of power and authority – irrevocably in descent.

Hence, the present historical direction is increasingly the opposite of what it was in the last decades of the twentieth century when the ANC was at its zenith in South Africa and boisterously extolled across the world.

In consequence, massive governmental failure now makes it incumbent to, and at the same time presents the opportunities to work towards what I advocated for in No, the Constitution is not our salvation namely a vastly improved dispensation.

To that end cultural, linguistic and regional communities must be recognised without external interference to be governed by their own management structures, thus laying the foundation for cooperative, federative networks to the benefit of each community, and for the well-being of the whole.

It is precisely against this backdrop that the constitutional debate and action is now, after thirty years, prominently on the foreground. For example:

- In the Western Cape working towards strengthening and expanding the powers and competencies of provincial government;

- In the Solidarity Movement working towards self-management for Afrikaner communities;

- The expanding collection of civil and business initiatives and organisations which simply fill power gaps left by retreating constitutionally assigned “authorities” and organs of state;

- Through communities in collapsed municipalities such as Disobotla and scores of others which under the pressure of circumstances simply start performing the (governmental) powers which the fallen constitutionally assigned authorities through their own self-imposed weakness are simply abandoning.

Together these initiatives are step by step building a varied new constitutional order in place of the crumbling one.

Let us stop, Mr Steward, judging the present as if we still find ourselves somewhere in the early 1990’s. Do not try to enshrine a mummified constitution, merely for the memory of the twinges of delight which the political messiah of yester year once inspired in some.

Let us build a new order, reminding ourselves of two important truisms.

First, constitutional orders are generally not long-lived. This is now also proving to be true for South Africa’s 1996 constitution, in spite of its secular clergy’s erstwhile belief that our final, best constitution in the would be the exception to the rule.

Secondly, though writing (the drafting of documents) might usually be playing some part in constitution-making, it might and is often no more than marginal. New constitutions might be written as part of a formal process, as Enlightenment constitutional doctrine tries to teach.

More often, however, constitution-making, consists of the actual ways in which things are done and how governance is actually carried out. Conversely, it also consists of failures of attempted governance by organs of state and how new governing structures come into being, replacing those which have failed, grown moribund and fallen by the wayside.

In this way, Mr Steward, constitution-making in this country is forcefully under way before our eyes – even while an infatuation with the best written constitution in the world may prevent you from noticing it.

Koos Malan is a constitutional jurist from Pretoria.