Professor Koos Malan, of the University of Pretoria, published a brilliant critique of the generally accepted doctrine of statist-individualist constitutionalism.
In his book, There is No Supreme Constitution: A Critique of Statist-Individualistic Constitutionalism, Malan challenges the plausibility of all the articles of faith of the South African Constitution.
Which is a complicated way of saying Malan’s book criticises the entire South African Constitution, questioning its validity.
His basic argument
He argues that the Constitution is not supreme and entrenched, but rather vulnerable to sociopolitical forces.
In other words, a single Constitution can’t successfully apply to millions of people across multiple cultural and ethnic divides.
Malan further criticises the threefold separation of powers and the bill of individual rights, suggesting they cannot guarantee justice due to the ideologically-driven exercise of judicial interpretation.
More simply, his book is a criticism of the blind trust in formal constitutionalism, saying that it changes a lot, even when there are strict rules about making amendments.
The Constitution is fickle.
He also says that the idea of separating powers in government is more of a metaphor and can’t really ensure a balance of power. And, even though these powers are separated institutionally, they are usually controlled by a single political leadership that follows the same ideological goals.
Which is the reality, if you think about it.
Moreover, Malan argues that the list of individual rights in the Constitution isn’t truly fair, as their interpretation is biased by specific ideologies, often hurting those who depend on these rights.
This is not just in South Africa, but in all countries that have Constitutions based on the same principles.
Decentralised balance of power
The book calls for a better way of constitutionalism, with a better system of balancing power and a better way to achieve fairness through a balanced constitution.
More specifically, people should rely on community groups to promote their own interests, developing their own culture and heritage.
For example, Orania.
Or the Zulu Kingdom.
South Africa is a country of around 60 million people, including many nations, ethnicities, cultures, tribes and so on. Each could achieve better outcomes if each had its own Constitution.
