Autocratic Legalism: The South African Experience
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Dennis Davis
University of Cape Town
In her recent contribution to a special issue on autocratic legalism in Verfassung und Recht in Übersee (VRÜ)/World Comparative Law, Kim Scheppele has written reflectively on her earlier seminal contributions to the debate about the turn against constitutional democracy. She posits thus:
In my initial article on autocratic legalism, I focused on formal legal changes like new constitutions, waves of statutes, and decisions of high courts. In the cases I had in front of me – Hungary, Poland, Russia – that was how autocracy appeared. But as my colleagues in this issue have pointed out, formal legal change is not the only way that aspirational autocrats use law to consolidate their power.
That passage accurately summarises the South Africa case. In brief: through the 1980s, the African National Congress (ANC) responded to the collapse of the USSR and the rise of constitutional democracy in many countries which transitioned to democracy by way of the development of a constitutional project. This ultimately bore fruit with the ANC-led passing of the 1996 South African Constitution.
During the presidency of Nelson Mandela there was much hope in the Constitutional commitment to the rule of law, the promotion of a substantive conception of equality, and an impressive range of socioeconomic rights to be supervised by an independent judiciary, with an ultimate appeal to a newly established Constitutional Court.
But the African National Congress was never unanimous in its embrace of a constitutional model. It initially had held to the idea that the South African revolution would have to take place in two stages. In the first place, a bourgeois democratic revolution of the kind that Joe Slovo, the General Secretary of the South African Communist Party described as not going beyond the objects of a kind of ‘de-raced capitalism’. Thereafter, the working class could move onto its ultimate goal of establishing a socialist republic that focussed on the national liberation of the African people with the replacement of the capitalist economic system and, thereby, the destruction of the economic base of the white ruling class.
Understandably, there were many within the ruling party who saw the embrace of constitutional democracy as a necessary but imperfect means to attain the ultimate objectives of the struggle against apartheid. Within a decade, the initial disquiet had expanded with the rise of a rent-seeking class that sought to dismantle constitutional democracy, not to promote some more radical democratic vision of South African society but to perpetuate an elite capture of national resources. To achieve this result, it was not necessary to change the legal order per se but rather to populate the various guardrails of constitutional democracy, including the police, the South African Revenue Service, the office of the Public Protector and the National Prosecuting Authority with personnel who were sympathetic to the project of state capture and thus the widescale enterprise of rent-seeking from state coffers.
Some of the guardrails of democracy remained intact. The judiciary and elements of the media exposed the nefarious activities of the then President Jacob Zuma and his acolytes, to the extent that it caused his removal from office. His replacement, Cyril Ramaphosa was a constitutionalist who had headed the ANC delegation during the constitutional negotiations leading up to the 1996 Constitution. He also supported the Judicial Commission of Inquiry into State Capture headed by the then Deputy Chief Justice Raymond Zondo[1] and he removed Zuma lackeys from the National Prosecuting Authority as well as from the Revenue Service. There was thus early promise of a commitment to constitutional governance in the transition from Zuma to Ramaphosa.
When the Zondo Commission on State Capture reported in 2022 and found that members of the ruling party had been central to the project, President Ramaphosa reacted by promising that the ANC would ensure that it brought its house into constitutional order. Not only have no prosecutions taken place but, as it has been exposed recently by significant reporting, extended corruption took place at the electricity power utility, Eskom, causing widespread blackouts throughout the country on a daily basis.
It is now widely predicted that the ruling party will seek a coalition with a profoundly anti-constitutionalist party, the Economic Freedom Fighters (EFF).
This then is the likely scenario for 2024 when a new national election must take place. If current opinion polls are accurate (which reflect that the ANC may struggle to obtain more than 45% of the electorate) , autocratic legalism (i.e., the exploitation of legal reforms and doctrine to undermine the rule of law) is insight. An increase of appointments to the judiciary of those deeply sympathetic to a populist project can be projected. Protection of private property can be severely weakened so that arbitrary confiscation can take place. In addition, the nationalisation of the Reserve Bank and arguably commercial banks will be implemented, as well as the eschewing of any private sector involvement in the reconstruction of the crumbling infrastructure of the country, notwithstanding almost non-existent public resources.
The present constitutional project will be dismantled, supported no longer simply by a small vocal minority but by the government of the day, under a discourse that the Constitution is an Eurocentric construct sourced in Western countries as opposed to a text based on African legal traditions.[2] Consequently, under this form of populist project, amendments to repeal a series of civil, political and economic rights presently contained in the 1996 Constitution will take place; that is if a state of emergency is not enforced earlier.
A 2024 coalition between the ANC and the EFF is utterly at war with any notion of constitutional democracy, even of the progressive kind that was clearly envisaged when the 1996 Constitution was drafted. The fetters which are placed on governance will be seen as an inconvenience to a far wider rent capture project than the country has previously been experiencing. At this point unbridled autocracy will be the dominant governance model and the restraints of legalism will recede into the distant past.
Dennis Davis is Professor at the University of Cape Town Law School
Suggested Citation: Dennis Davis, ‘Autocratic Legalism: The South African Experience’ IACL-AIDC Blog (6 June 2023) https://blog-iacl-aidc.org/autocratic-legalism/2023/6/6/autocratic-legalism-the-south-african-experience.
[1] Judge Zondo was the Deputy Chief Justice when he presided over the Commission into State Capture. Subsequent thereto, in 2022 he was appointed as Chief Justice
[2] The debate about whether the South African Constitution represents a true break from colonial and Apartheid history turns on whether the Constitution represents a coherent attempt to eradicate coloniality and achieve epistemic justice. The complexity of this debate must await a further contribution.
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