Democracy, Deliberation and Degradation? My optimism for SA’s constitutional democracy was misplaced

When I wrote the first edition of Democracy and Deliberation, which was published about 27 years ago, the analysis embraced the possibility of constitutional democracy. Transforming South Africa, it also envisaged that, at least in part, the constitutional instrument would be enthusiastically embraced and implemented by the government.

Regrettably, more than a quarter of a century later, there are ominous signs that this optimism was misplaced and that dark clouds of a more authoritarian model of governance are gathering.

In the 2024 election, if the total votes cast in favour of the MK party, the EFF and the Patriotic Alliance are combined, about 27% of the electorate voted for parties which advocate the abolition of the Constitution or support extremely significant amendments thereto. In addition, one would be hard pressed to argue that all who voted for the ANC or some of the smaller parties were constitutional advocates.

In summary, in writing the first edition of this work my optimism was clearly misplaced. I would offer three reasons for this misplaced set of arguments.

In the first place there is a marked change from the enthusiasm with which constitutional democracy was greeted throughout the world during the 1990s. At the time that South Africa introduced its 1996 Constitution, it is estimated that between 45 to 60 countries introduced written constitutions. Today the role of the leader has become far more important in many countries than the rule by law. Donald Trump is eviscerating many of the guardrails of US constitutional democracy, which will not be easily repaired. An extremely conservative supreme court will continue to exist even after the end of Trump’s term of office. Arguably the most important example of the supreme court’s weakening of constitutional democracy was the case of Citizens United in which the majority of the court altered campaign finance law and held that laws restricting the political spending of corporations was inconsistent with the First Amendment to the US Constitution. This ensured that plutocrats like Elon Musk would play a far more dominant role than had been the case in previous US elections.

Trump is not the only leader who embraces this model. Narendra Modi in India has done much to weaken what was for many years a vibrant constitutional democracy in India. Mercifully, Viktor Orbán has been removed from office in Hungary, but his contribution to the erosion of constitutional democracy in that country was regarded as a poster child for authoritarians. Benjamin Netanyahu has set about weakening the rule of law, the judiciary and the independent office of the attorney general in Israel.

In the 1990s it could not be hard to predict how dramatic the shift away from constitutional democracy would prove to be. Within the academic context, even liberal constitutional theorists such as Ronald Dworkin and in a broader context John Rawls have been replaced by recourse to the Nazi theorist Carl Schmidt and modern adherence to Schmidt’s theories including Harvard Professor Adrian Vermeule who now view the concept of the “common good” generally as fashioned by the leader whose views take precedence over protected space and individual autonomy, which, however imperfectly, were prioritised by American democracy for more than 200 years.

A second factor, which was not as apparent 27 years ago as it is today, is the failure of the South African government to implement an economic policy which would vindicate the constitutional values of freedom, equality and dignity for all who live in the country.

Levels of unemployment have resulted in a precarious life for many as opposed to a dignified life for all. Economic growth limps along at 1% and there is the irony of celebration if South Africa creeps up to a GDP growth rate of 2%. Historical disadvantage remains the current disadvantage for the majority. In summary, tepid economic growth has ensured that the vision of a constitutional democracy which provides opportunities for all to exercise meaningful citizenship has not taken place. Nor does there appear to be any viable economic policy on the table to ensure that the values of the Constitution are given content through economic policy. It is so that social grants have been critical to staving off even more disastrous consequences for millions, but sustained inclusive economic growth is but an illusion.

Unsurprisingly, political populism has grown in this country and will continue to expand unless there is a congruence between our constitutional vision and economic policy.

It is not surprising that, writing in the 1990s, I overlooked a third factor: constitutional scepticism within South Africa. A number of contemporary public intellectuals argue today that the Constitution represents no more than a “sellout” to white capital in one form or another.

Writing 27 years after the optimism created by Nelson Mandela and the first few years of constitutional democracy notwithstanding, the challenge is to ensure that public institutions, so many of which have been degraded and captured and hence swamped by corruption, can be reinstated into significant guardrails to protect constitutional democracy. From this it must follow that an economic policy is pursued which constitutes a modern version of social democracy as reflected in the framework of the Constitution read as a whole. Failure to address these two core issues can only lead to increasing levels of populism and hence the continued degradation of the South African constitutional dream. The upshot is to be seen in the dramatic rise in xenophobia and the evisceration of the idea that we are all Africans. The amnesia that now engulfs the country in hate conveniently forgets the sustained support we South Africans received from other African countries in our hour of need.

Between the politics of populism and xenophobia as advocated, inter alia by MK and the Patriotic Alliance and civil movements aligned to this level of prejudice, lies the true threat to a viable constitutional democracy. DM

An extract from DM Davis, Democracy, Deliberation or Degradation? Published by Jutas (2026).