Pioneer InitiativeMuch can be said today about the intentions and expectations of the negotiators who, during the 1990s, envisioned a "new South Africa." This is an important discussion and one that must indeed be had. However, it is primarily a conversation for academic purposes. The key issue should not, in the first place, be what South Africa was supposed to look like, but what it actually looks like today. Secondly — and even more importantly — we must find an answer to the question: What can be done to make things better?
When the South African Constitution came into effect in 1996, it was hailed worldwide as the "best," "most modern," and "most liberal" constitution in the world. The assumption was that a liberal-democratic constitution, with an exclusive focus on guaranteeing individual rights, would provide a solution to the diverse and complex political and cultural dynamics that have played out in South Africa for centuries.
Naturally, there were already voices in the 1990s expressing reservations about South Africa being hailed as a "miracle" and predicting that the country's future would be one of peace, harmony, democratization, and Westernization. One of the most prominent voices in this regard was the Harvard professor Samuel Huntington, author of The Clash of Civilizations and the Remaking of the World Order, one of the most important books of the 1990s. In it, Huntington expresses concern about what he calls the "democratic paradox." In this context, he referred to the phenomenon of democratic institutions being used to pursue undemocratic agendas.
Huntington argued that the world is made up of multiple civilizations and that future conflicts would primarily arise from clashes between these civilizations. For this reason, he warned — specifically with reference to South Africa — that the West should not expect non-Western civilizations to become Western simply by adopting Western institutions. The fact that a country has a Western constitution and a parliamentary system should by no means be taken as evidence that those who interpret the constitution will do so from a Western perspective — or that those who make laws will do so in a Western manner. In fact, Huntington went so far as to predict that there would be a rediscovery of African identity in Africa — and in South Africa in particular — following the political upheavals of the 1990s. This is indeed what happened: not long after the publication of The Clash of Civilizations, then-South African president Thabo Mbeki launched the African Renaissance.
It is precisely for this reason that, in retrospect, it appears naïve to have thought of South Africa as a place that could sustainably be governed by Western institutions. In this regard, I want to highlight five key points:
1. Inadequate Recognition of Community Dynamics
The chief negotiator of the National Party (NP), Roelf Meyer, argued at the time that guaranteeing individual rights would be sufficient to protect communities in South Africa, because communities are made up of individuals. The logic was that if the individual is protected, then the community is implicitly protected as well. Therefore, it was argued that South Africa's complex communal dynamics could simply be ignored in the Constitution by granting everyone individual rights.
The result has been that communities in South Africa are increasingly being suppressed — sometimes deliberately, and other times simply due to a lack of recognition. A constitution that guarantees each individual the right to study in the language of their choice "where that education is reasonably practicable" is fundamentally different from one that grants communities the right to institutions that offer education in their language. In practice, this exclusively individual-based recognition leads to educational institutions gradually becoming English-only, after which it is no longer "reasonably practicable" for individuals to study in their own language. This is just one example.
2. Checks and Balances… but Only in Theory
During the drafting of the South African Constitution, great emphasis was placed on the principle of checks and balances. The argument was that the government would be transparent and accountable if the necessary mechanisms were written into the Constitution to prevent abuse of power. Examples include institutions such as the Human Rights Commission, the Public Protector, and the Judicial Service Commission. It was also claimed that South Africa would operate on the principle of separation of powers—where the executive, legislative, and judicial branches would function independently and keep one another in check.
What sounds like a good idea in theory turned out to be a failure in practice. Since the Constitution came into effect, the ruling ANC has simply ensured that all of these institutions, for all practical purposes, serve the interests of the governing party. That is why Professor Koos Malan argues that it is misleading to think of these sectors of government as separate power structures that restrain one another. It is more accurate to describe them as one cohesive political elite.
3. A Highway to Centralization
Professor Marinus Wiechers, one of the drafters of the Constitution, frequently asserted that the constitutional order in South Africa was highly decentralized. He cited the existence of the National Council of Provinces, provincial premiers, references to municipal authorities, and the aforementioned checks and balances as evidence. But again, what may appear sound in theory does not hold up in practice.
In reality, the South African system is highly centralized — so much so that many citizens do not associate themselves with the government at all. One might say that South Africa is governed from the Union Buildings in Pretoria. But even that is misleading. In practice, it is more accurate to say that the country is governed from the ANC headquarters in Johannesburg.
4. Radical Interpretation of the Constitution
Professor Malan further argues that it is misleading to merely speak of future constitutional changes in South Africa, since the Constitution has already been significantly altered — not by amending its text, but by radically changing its interpretation. There are numerous provisions in the Constitution that, at first glance, seem excellent but that are left entirely to the courts to interpret. Consider provisions such as the state's right to expropriate property "in the public interest," that "measures" must be taken to promote equality, or that several criteria have to be "taken into account" in determining the extent to which the government shall provide for the use of official languages. All of these depend on how the courts choose to interpret them.
This is yet another example of Huntington's warning: we should not naïvely assume that a Western constitution with Western terminology will be interpreted in a Western way.
5. Mandela Is No Longer the President
In hindsight, it is almost comical how much emphasis was placed in the 1990s on Nelson Mandela's presence. Several historians have pointed out that Mandela had already attained an almost divine status during the negotiations — so much so that few dared to challenge him on the merits of his arguments. Mandela, of course, emphasized reconciliation and nation-building, and this was used by NP representatives to reassure those who were concerned about the new political order. At the time, concerns were often dismissed with platitudes like: "Remember, Mandela will be the president," or "Mandela won't allow that."
Now, Mandela certainly deserves credit for his emphasis on peaceful negotiation during the 1990s, and for his efforts as president to bring diverse groups closer together. But the fact remains that the ANC had for decades openly stated its intention to place South Africa on a socialist path and to govern "for black people in general, but Africans in particular" (as if no one but black people can be African). To suggest that South Africa would not unravel simply because Mandela would be president reflects a shockingly short-sighted view of the future. Mandela was not immortal. He died — and South Africa and the ANC carried on without him.
The conversation about the unsustainability of South Africa's current political order is far from over. In fact, it has only just begun. As the reality sets in that the status quo is not sustainable and that some form of systemic change lies ahead, it would be reckless to continue as though these realities do not exist. There are already those who seek to overthrow the political system and replace it with something more radical.
If we do not participate in the conversation about a more sustainable order for South Africa, that conversation will continue in our absence—undoubtedly to our detriment.
Dr Roets is Chief Executive of the Pioneer Initiative