In Search of Constitutional ‘Philosopher-Kings’ in ‘Post-Apartheid South’? A Review of Super President: The History and Future of Executive Power in South Africa

Abstract

In The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (2015), the legal philosophers and political theorists Hans Kelsen and Carl Schmitt engaged in the now heralded ‘debate’ regarding the role of the president and constitutional review. The limits of executive power and constitutionalism were the fundamental point of departure. With the reinforcement of American fascism under the presidency of Donald Trump as evidenced by his avalanche of executive orders, ‘the Kelsen and Schmitt debate’ has become even more germane. In our current context in South Africa the so-called debate on expropriation with or without compensation under the presidency of Cyril Ramaphosa and the constitution of 1996 serves as a relevant example of the significance of ‘how presidential power should be used in South Africa’ (Ndzendze 2024:i). What is the nature of presidential power in the context of South Africa as a white settler colony since the conquest of Indigenous people in 1652? How can a black president undo the structure of white settler colonialism within the legal epistemological paradigm of the European conqueror (Ramose 2006) as embodied in the constitution of 1996? Should the fundamental quest be to decolonise the political and legal paradigm that stems from epistemicide (Ramose 2007) due to conquest since 1652, rather advocating for effectiveness in it? These are some of the more structural questions which the framing of presidential power within the contours of the ‘politics of efficiency’ and the parameters of a liberal white settler constitutional framework makes difficult to entertain and respond to with persuasion. The perennial relationship between structure and agency becomes significant in this regard. Without being grounded in a structural history of South Africa as a white settler colony (Wolfe 2006) one runs the risk of indulging in personality idealism and the fetishization of agency. This is not to deny the power of certain individuals and roles that they endowed with within a given structure. In is within this context that the following question premised on the book  Super President: The History and Future of Executive Power in South Africa (2024) by Bhaso Ndzendze makes sense: how can presidential power be used in South Africa to effect change and institute transparent and effective leadership?