In post-colonial African states, the new or “liberation” constitutions tend to be torn up, thrown away or up-ended via radical amendment.
These processes occur along a well-trodden road, after “liberation party” governments show a tendency to govern by sleight of hand. Frequently lip-service is paid to the values incorporated in these constitutions. They are generated by departing colonial powers as a rather toxic parting gift to the former colonies.
For so long as the indigenous governing elites deem it expedient, constitutions survive a while and politicians abide by the rules which incorporate values and principles that are incompatible with their aspirations; they fought liberation wars for the perks of power and they all but ignore the responsibilities of accountability, openness and responsiveness involved in principled governance once power is attained.
In SA the war-cry of the liberation movements was “Amandla Awethu” – Power is Ours – not “Accountability is Ours”. By adopting the current constitutional dispensation and holding office under it, all politicians are bound by their oath of office to uphold it and the rule of law. Pre-liberation slogans are part of history and have no place in a nation that aspires to be united in its diversity.
According to a simple google search: “Post-liberation and independence constitutions in Africa survive an average of 10.2 years, considerably lower than the global average of 17 years and the European average of 32 years. While several enduring democracies exist in Africa, most post-liberation founding documents fall victim to frequent amendments, ‘constitutional coups’, or complete rewrites by ruling parties. There is a tendency to abide by rather than to embrace constitutional dispensations gifted to Africa by the former colonialists.”
In his biography of the former President, Mark Gevisser writes of Thabo Mbeki’s fear of being succeeded by Jacob Zuma as president:
“Zuma and his backers had no respect for the rule of law, and would be unaccountable to the constitutional dispensation the ANC had put in place if they came to power. There was also the worry of a resurgence of ethnic politics, and – given his support from the left – that Zuma’s leftist advisors would undo all the meticulous stitching of SA into the global economy that Mbeki and his economic managers had undertaken over 15 years.” – The Dream Deferred, p xli.
A descent into kleptocracy was avoided when Zuma was forced from office by his own political party and its allies in 2018.
So far survived
The home-made founding Constitution of our still fairly new democratic order has so far survived all challenges that have come its way, including those of the nine wasted Zuma years. This happy state is due to the work of the judiciary, especially the Constitutional Court, the Chapter Nine Institutions (those that are not infested with loyal cadres of the National Democratic Revolution), civil society organizations and faith-based organisations. The role of ordinary citizens who, in dwindling numbers, turn out to vote in elections at national, provincial and local levels is of critical relevance too.
The indigenous provenance of the Constitution has helped it survive for more than three times the African average constitutional lifespan of 10.2 years. As Zuma explained in parliament to a gob-smacked Lindiwe Mazibuko, then leader of the opposition, back in 2012, in democracy the majority has more rights than the minority. His thinking back then was predicated on the tyranny of the majority, a dictatorship of ‘the people’ and the (false) notion that the majority has more rights than the minority!
More recently, after he founded the MK Party, Zuma has moved on to advocate parliamentary sovereignty in a two-chamber parliament with an upper house of traditional leaders. To upend our constitutional order in this way requires a supporting vote from 75% of the National Assembly and six provinces. Currently MK commands 14.5% of the seats in the National Assembly, and no provinces.
The SA Constitution opens with the words “We, the people” and embraces much of the content of the Freedom Charter which was adopted at a conference held in Kliptown in 1955 as the foundational document of the anti-apartheid struggle in South Africa, outlining a vision for a non-racial, democratic state. The Freedom Charter declared that “South Africa belongs to all who live in it,” and it was adopted by the Congress Alliance, including the ANC and the SA Communist Party.
The Constitution is not part of the legacy of colonialism in SA; it replaces the parliamentary sovereignty of the old SA with an agreed dispensation in which the rule of law and the Constitution are expressly regarded by the founders of the new order as our supreme law. Politicians who paint outside the lines drawn in the Constitution run the risk of being corrected by the courts, because parliament is no longer sovereign, as it was pre-1994.
Separation of powers
The doctrine of the separation of powers is in place and the Constitution itself is designed for government to embrace openness, accountability and responsiveness as the order of the day. The Chapter Nine Institutions (of which there are too many) exist to support constitutional democracy, independently, impartially and without fear, favour or prejudice.
The checks and balances on the exercise of power that are in place in SA may explain the longevity of the Constitution. It prescribes that any law or conduct that is inconsistent with the Constitution is invalid. [Section 2]
Public interest litigation is used frequently to uphold the Constitution when the executive and legislature stray from its prescribed path. Due to the impartiality of the courts, public interest litigation has, by way of examples, secured access to medication for pregnant women who are HIV positive, and greater safety for rail commuters who frequently fall prey to criminals on trains. Judicial decisions created a general class action for citizens, ensured timeous payment of SASSA grants by the state and even notionally created a specialist independent anti-corruption entity after the Scorpions unit within the NPA was disbanded.
The courts helped the Public Protector to hold Jacob Zuma accountable for his non-security expenses incurred during renovations at his Nkandla home by finding that the remedial action order by the OPP was binding. It was the same Public Protector who insisted on the establishment of a Commission of Inquiry into State Capture. The Zondo Commission would not have existed at all without the pertinacity of Adv Thuli Madonsela. SA owes her a debt of gratitude for her intense determination and dedicated perseverance.
It is also significant that Chapter Two of the Constitution, our justiciable Bill of Rights, requires that the state must respect, protect, promote and fulfil the rights set forth in the Bill of Rights. Some of these rights can be progressively implemented within the available resources of the state, others have been claimable in full since day one of our new democratic order.
Spelt out
The basic values and principles governing public administration and public enterprises are spelt out in some detail in Chapter 10 of the Constitution. The “efficient, economic and effective use of resources must be promoted” is a principle that is still a work in progress, largely because of the ravages of the cadre deployment policy of the tripartite alliance which governed at national level until May 2024, when a coalition government took over after the alliance failed to secure a majority in the national elections.
The trends discernible from polling suggest that there is no single political party active in SA today that can return the country to the “dominant party” status of the first thirty years. Coalition politics are here to stay for at least two more election cycles, bringing adherence to constitutional values back into focus. This development can be seen in the litigation of the EFF and ATM parties that ended on 8th May 2026 with a resounding victory for constitutionalism and the rule of law.
The Constitutional Court ordered the National Assembly to take the steps necessary in the process to remove the president from office. A 31-member committee tasked with ascertaining whether the president has seriously violated the Constitution or the law or has seriously misconducted himself is in the process of being set up to inquire into these matters and to report to the National Assembly on its findings.
Only if two thirds of its members support any recommendation for removal will it proceed. The president may succeed in delaying the work of the committee by seeking an interdict against parliament pending the outcome of the review of the report of the Ngcobo committee that found he has a case to answer. It is not a foregone conclusion that any such interdict can be obtained, even on appeal.
Those who favour a swifter reckoning for the president are able to propose a motion of no confidence in him which can be passed by the National Assembly with a simple majority of 50% plus one: a somewhat easier task than the two-thirds majority that the removal from office of the president requires of a parliament in which the ANC holds 40% of the seats.
The MK party has already submitted to the Speaker a formal Section 102 motion of no confidence against the president following the Constitutional Court ruling that invalidated the National Assembly’s previous decision, made during the sixth parliament, to block the Section 89 removal inquiry. The MK party has specifically requested a secret ballot to protect members of parliament from political intimidation.
Notorious
If the motion succeeds, both the president and his cabinet, including deputy ministers, are obliged to resign. The request for secrecy has been made to protect those in the ten GNU-aligned parties from the wrath of their party whips. It is notorious that the president does not have the full support of the ANC caucus, which includes some politicians who owe their allegiance to the SA Communist Party and other factions which are unsupportive of the president.
Both of President Cyril Ramaphosa’s predecessors: Thabo Mbeki and Jacob Zuma, resigned at the behest of the ANC-led alliance after it lost confidence in them. They both retained their pension and other benefits. At the time relevant to both resignations, the ANC enjoyed a majority and could, in the event of presidential recalcitrance, have proposed a motion of no confidence. The removal from presidential office via a Section 89 procedure is regarded as punitive; any president who suffers that fate “may not receive any benefits of that office, and may not serve in any public office” [Section 89(2)].
The section 89 procedure applies only to the president, not to the national cabinet. It is notionally possible to proceed with the removal-from-office process after the president resigns or loses the no confidence motion currently pending before the National Assembly. The purpose of doing so would be to deprive the president of the perks of high office that he holds at present.
The MK party’s core policy on parliamentary sovereignty advocates replacing South Africa’s current constitutional supremacy with what it calls “unfettered parliamentary supremacy”. The party aims to scrap the current 1996 Constitution to ensure that the legislature—not the judiciary or unelected bodies—holds ultimate and absolute authority over the country’s laws.
Less radical
For the policy reintroducing parliamentary sovereignty to SA to succeed, the MK party will have to command the vote of at least 75% of the members of the National Assembly, as required by Section 74 of the Constitution. Less radical amendments that do not involve the repeal of Section 1 of the Constitution require a two-thirds majority. Both these majorities seem to be politically unattainable in the era of coalition politics at national level, which began in 2024.
There are less radical ways of improving the constitutional dispensation in SA.
Currently, far too much power is concentrated in the presidency. Political choices which limit and diffuse the powers of the president are possible. The notion of a “Commission for Senior Appointments and Dis-appointments” has been suggested by former DNDPP Adv Willie Hofmeyr, who also served in parliament for a spell as a member of the ANC caucus.
His proposed commission, if it is created, could streamline the workings of government, eliminate party politics from appointment processes, put an end to cadre deployment and free up the president to be more presidential and less administrative in his many and varied duties. The new commission could create a committee for judicial appointments, in place of the Judicial Service Commission, which is unwieldy, inefficient and dominated by professional and not so professional politicians.
The president, when he gave evidence to the Zondo Commission, startlingly confessed that the ANC picks the judges it wants to see appointed on the recommendation of the JSC. Fewer politicians and more retired judges would enhance the workings of the Commission Hofmeyr has suggested.
The rationalisation of our six Chapter Nine bodies was considered in 2007 by the Asmal Commission, which was an ad hoc committee of the National Assembly. Existing Chapter Nine bodies have overlapping or very similar mandates. Implementing the Asmal recommendations is long overdue. The Gender, Culture, Religion and Linguistics and Human Rights Commissions could comfortably be merged into a single body.
Outside executive control
The body outside executive control created to deal with corruption effectively could be a new and separate Chapter Nine body, as was hinted at in the majority judgment of the Constitutional Court in Glenister Two [paragraph 205]:
We add that any obligation binding upon the Republic under international law must not conflict with express provisions of the Constitution, including those in the Bill of Rights. Here, there is no conflict. Far from containing any provision at odds with the obligation to create an independent corruption-fighting entity, the very structure of our Constitution — in which the rule of law is a founding value, which distributes power by separating it between the legislature, the executive and the judiciary, and which creates various institutions supporting constitutional democracy, which it expressly decrees must be independent and impartial — affords the obligation a homely and emphatic welcome.
A private member’s bill envisaging a new Chapter Nine Anti-Corruption Commission is already in the works in parliament, and has been since November 2024. It should command universal support.
The system of proportional representation currently in place was originally intended for the first free and fair elections, but it stubbornly remains in place. It is high time that the Van Zyl Slabbert Commission findings are revisited with a view to rationalising the system to meet current needs, in our new era of coalition politics at national level.
These needs are different from those of the dominant party politics which ended at national level in 2024. Bad experiences at local level suggest that small parties with very limited support at the polls are able to bargain their way to becoming the tail that wags the dog in too many local governments around the country.
Adjusting the threshold of votes required to get a seat in parliament may well be indicated.
[Image: https://www.flickr.com/photos/xevivarela/2770634880]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
If you like what you have just read, support the Daily Friend