Professor Koos Malan, of the University of Pretoria, has published a critique of the generally accepted doctrine of statist-individualist constitutionalism.
In his book, There is No Supreme Constitution: A Critique of Statist-Individualistic Constitutionalism, Koos challenges the plausibility of all the articles of faith of the South African constitution. He argues that the constitution is not supreme and entrenched, but rather vulnerable to potent sociopolitical forces. He also criticises the trite 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.
He also thinks 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.
Moreover, Koos criticises the list of individual rights, saying it can’t promise fairness because these rights are interpreted based on certain ideologies, which can often harm those who rely on these rights. This is not just in South Africa, but in all countries that have constitutions based on the same principles.
Basically, the book asks 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 and develop their own culture.
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.
Because there is no supreme constitution.
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