A New Constitutional Order in South Africa

The dominant party era in democratic South Africa is over. After winning absolute majorities in six consecutive national elections spanning thirty years, on 29 May 2024 the African National Congress (ANC) fell below 50% of the vote for the first time.

The ANC remains the largest party. On the evening of 14 June, the National Assembly elected ANC leader Cyril Ramaphosa for a second term as the country’s president.

But South Africa politics, and its constitutionalism, have changed fundamentally. The one certainty of the post-1994 order was that the ANC would hold an absolute majority. No longer. Ramaphosa’s second term rests on a centrist coalition agreement with what since 2003 has been the largest opposition party, the Democratic Alliance (which came second, with 21,81% of the vote), and some smaller parties.

If these are the headlines, several things are worth a closer look. What does the ANC’s result tell us about what voters are thinking? What should we make of the new coalition, formed hastily under constitutional deadlines whose significance has been little noted until now? And what do the events of the last two weeks portend for South African constitutionalism?

New players

First, it is tempting to see the ANC’s loss of support as a long-awaited reckoning. In the end, the party won just 40,18% of the vote, as compared to 57,5% in 2019. The ANC has been mired in corruption. After thirty years in powers, it has seemed increasingly ill-equipped for the socio-economic mountain that apartheid left it to climb.

The truth is more complicated. The biggest gainer in the 2024 elections is a new party, MK or Umkhonto we Sizwe, which used to be the name of the ANC’s armed wing. The party’s figurehead is Jacob Zuma, former South African and ANC president, who has broken away from the ANC. It was under Zuma’s presidency (2009-2018) that corruption was at its blatant worst. Yet MK, and Zuma, won 14,58% of the vote.

That 14,58% represents most of the ANC’s 17,32 percentage point decline from 2019 to 2024. Those votes went to easily the most corrupt ANC president South Africa has had.

The election result, then, is less a rebuke of ANC malfeasance in office, and more about what it looks like when a liberation movement cracks.

The ANC has always been a broad church, originally glued together by a common struggle and maintained by strong party discipline. Neither was going to last forever.

Thus the two most successful new political movements of the last ten years have been breakaways from the ANC – now MK, and before that the Economic Freedom Fighters (EFF), a radical populist party to the ANC’s left. The EFF was founded by former ANC Youth League leader Julius Malema, who was expelled from the ANC in 2013. Malema’s party came fourth, winning 9,52% of the vote. It and MK now represent the coalition’s main opposition.

The fragmentation does not end with MK and the EFF. The 2024 elections saw an unprecedently long list of parties competing. Many of these test balloons did not fly. But forming a government will now be a matter of what can be constructed from this growing set of pieces – and of whether these constructions can be held together. Given the low threshold for entering parliament, constitutional rules will do little to constrain splintering.

Coalitions themselves are hardly unprecedented in post-1994 politics. Following the founding election in April 1994, South Africa was ruled by a Government of National Unity (GNU), with the National Party (the party of apartheid) and the Inkatha Freedom Party (IFP) joining in an ANC-led government. After former apartheid leader F. W. De Klerk withdrew his party from the GNU in May 1996, the IFP remained in the ANC cabinet until 2004.

The current exercise in coalition-building has constantly referred back to this GNU precedent. What is different this time, of course, is that the ANC has no majority of its own.

New pace

It has also had to happen much more quickly. The original GNU was long planned. The 2024 version was hastily cobbled together under a hitherto overlooked constitutional clock.

Under section 86(1) of the 1996 Constitution, the National Assembly must elect the President, the Speaker and the Deputy Speaker ‘at its first sitting after its election’. Elsewhere, section 51(1) provides that this first sitting must occur within fourteen days of the declaration of the election result.

In an era of guaranteed ANC majorities, this posed no difficulties. Now, it places serious pressure on coalition negotiations, which in other countries can drag on for months.

The result was that coalition talks continued even after the National Assembly’s sitting had begun on Friday. Many details, including cabinet positions, have yet to be announced. It remains to be seen how the coalition will deal with some very deep policy differences, including on national health insurance and Black Economic Empowerment – and how durable a coalition can be when such issues cannot be resolved before the coalition must be formed.

For Ramaphosa, this represents an opportunity for a political fresh start. But it will require charting a difficult course between DA supporters who include conservative white voters, and the pressures of a Black majority in a society with the world’s highest GINI coefficient (a measure of inequality). The EFF and MK, who refused to join a coalition that included the DA, have denounced the agreement as an ANC sell-out to white minority capital.

New challenges

Finally, what does all this mean for South African constitutionalism?

There are certainly threats. Most obvious among them is Zuma. It is not that he is on a collision course with the law and the Constitutional Court in particular, so much as that he has already repeatedly collided with them.

In June 2021, the Court sentenced Zuma to 15 months’ imprisonment for contempt of court, as a result of his failure to co-operate with efforts (so far unsuccessful) to hold him legally accountable for pervasive corruption during his presidency. That decision led to widespread unrest and looting. Zuma served little of the sentence, and was later pardoned – but his original conviction means that he is no longer eligible to serve as a member of the National Assembly. A ruling of the Court just before the election confirmed this legal result. Zuma has explicitly and repeatedly attacked the Court in response.

The MK has also challenged the legitimacy of the election, boycotting the first sitting of the legislature. Its apparent willingness to attack all and any institutions recalls Trumpism.

This will represent a significant challenge to the Court, and it is not the only one. Political experimentation will mean more questioning of the post-1994 constitutional order. The loss of the ANC’s majority will mean fewer controversial issues being resolved within the ANC, and more of them ending up in court. Political fragmentation also increases the scope for judicial power. We will see how the Court, and the public, responds.

That is a question for the future, and for the new constitutional order, of one kind or another, that South Africans will now need to build. For the old one is over.