The South African Constitution of 1996 is widely regarded as a negotiated constitution based on core ideals. However, Professor Fowkes contended that both of these viewpoints are misguided. He claimed that the constitutional system is founded on power, specifically the ANC's authority in a "constructive revolution."

He identified parallels between South Africa's post-apartheid constitutional development and India's post-1949 constitutional order under the Congress Party. This comparative research demonstrated that, rather than being an uncommon negotiated settlement, South Africa's constitution followed a global trend of power-driven transformations.

On March 11, the University of Pretoria's Department of Jurisprudence hosted a thought-provoking research seminar with Professor James Fowkes from the University of Münster. The guest speaker's presentation, "On Constitutional Power in South Africa: Beyond the Negotiation Story," challenged widely held ideas about the country's constitutional order.

The seminar opened with remarks by Professor Anton Kok, who introduced Professor Fowkes and framed the discussion as an important opportunity for critical thinking. Fowkes has an extensive academic background at the University of Pretoria and the Institute for International and Comparative Law in Africa (ICLA).

Fowkes' main claims centred on two prominent but, in his opinion, incorrect assumptions:

• The Constitution as Value-Based, he argued that interpreting the Constitution as a predetermined set of democratic values is incorrect. Instead, he emphasised the amendability of even its most fundamental ideas, as stated in section 74(1). This, he maintained, demonstrates that power, not unchangeable values, is the true foundation of the constitutional order.
• The Myth of a Purely Negotiated Constitution, while admitting that negotiation played a role in the late 1980s and early 1990s, Fowkes argued that the concept of a deeply negotiated settlement is exaggerated. He argued that South Africa's transition was "ordinary" in global terms, with the ANC's dominance influencing the constitutional framework.

One of Fowkes' most compelling arguments revolved around Section 74(1) of the 1996 Constitution, which governs amendments to the Constitution's most enduring clauses. He illustrated how a super-majority in Parliament headed by Black South African legislators might unilaterally modify even the most fundamental provisions of the constitution. He sees this method as a deliberate concentration of power rather than a fair negotiation.

Professor Fowkes concluded by calling for a reform in how South Africans view their constitutional structure. He challenged scholars to acknowledge the impact of power on the nation's legal and political landscape, rather than relying on traditional negotiation narratives and principles.

The address culminated with a spirited Q&A session in which attendees discussed the ramifications of Fowkes' ideas. Fowkes, a former researcher at UP's Institute for International and Comparative Law in Africa (ICLA), encourages feedback and anticipates that the research will lead to a book-length effort.

The seminar promoted the significance of continuously reviewing and reassessing South Africa's constitutional history. By challenging conventional interpretations, Fowkes urged legal experts to reconsider how power, rather than solely negotiated principles, continues to govern the country's legal system.