The Congress of Vienna, Jean Godefroy

Challenging Constitutionalism in Post-Apartheid South Africa

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Heinz Klug

2 (2016)

Pages 41-58


Twenty years after the adoption of South Africa’s “final” post-apartheid constitution there are increasing demands for constitutional change. Political parties, both in and out of power, challenge the legitimacy of the constitutional order and assert that its failures are a product of its origins rather than its implementation. This paper explores the attack on post-apartheid constitutionalism as a form of nullification in which critics are using both the constitution’s origins and the failures of governance over the last twenty years to reject the existing constitution and to demand a new order. Arguing that the constitution is fundamentally flawed, these critics question the legitimacy of the constitution implying that nullifying the present constitutional order will offer a means to address the legacies of apartheid that continue to dominate the daily lives of most South Africans.