The Constitution: bedrock of democracy

Richard Calland, an associate professor in Public Law at the University of Cape Town, explains how, despite South Africa's Constitution having been challenged for the past 30 years, it has held firm.

- Richard Calland

"There was a moment during the state-capture years of South African president Jacob Zuma’s term in office (2009 to 2018) when the veil finally slipped. There had been quiet rumblings against the country’s constitution for many years. But now a senior figure in the ruling African National Congress – its chief whip in the National Assembly, Mathole Motshekga – gave public expression to the notion that when judges overturned decisions of the government they were undermining democracy by thwarting the will of the majority.

As I watched a 2014 parliamentary ad hoc committee debate the Public Protector’s report on spending for Zuma’s private home, I realised that this might be a critical time for the notion of constitutionalism in modern South Africa.

The parliamentary committee’s work was to give effect to the findings and recommendations of the Public Protector.

If the view expressed by Motshekga – known in academic circles as the counter-majoritarian dilemma – were to gain wider currency, South Africa’s constitution would be weakened. Arguments in favour of a return to parliamentary sovereignty (of the apartheid era) might gain momentum. Without the checks and balances of the constitution, the scope for abuse of executive power would increase drastically. The human rights advances of the post-1994 era could be rolled back.

As I watched the proceedings of the ad hoc committee, I heard Motshekga ask why the views of the majority party in parliament should be subordinate to an unelected Public Protector.

His rhetorical question went to the heart of South Africa’s constitutional journey; it reflected how much the project to establish the principle of constitutionalism remained contested.