Johannesburg — THE fact that the African National Congress (ANC) missed a two- thirds majority in last month's election was met with relief and elation in opposition circles.

There was a nagging anxiety among the opposition that the ANC might enlist a two-thirds majority to amend the constitution to its own liking, hence the joy that the ANC, devoid of a two- third majority, will now no longer be able to do it. Both the anxiety and the elation were unfounded, for two reasons.

First, at the root of the fear and the joy is the notion that the constitution is primarily a weapon at the disposal of the opposition and is thus troublesome to the ANC. According to this notion, the constitution annoys the ANC; the party is almost a victim of the constitution. It is in power, yet is not really as in power as it should be. The constitution is disruptive to the ANC and prevents it from doing what it wants to do. Hence the constitution is serving the opponents of the ANC with the result that the party would like to bring about fundamental changes to the constitution, thus getting the annoyance out of the way.

A subsidiary notion is that the nimble and astute negotiators of the old National Party made short shrift of their leaden-footed and somewhat dull-witted opponents - people such as Cyril Ramaphosa - during the constitutional negotiations, thus imposing a burden (the constitution) on the ANC under which the ANC has laboured ever since.

This notion is obvious nonsense. The historical record of the constitutional negotiations of the 1990s overwhelmingly shows that the ANC was the principal author of the constitution. To a large extent, the constitution embodies the ANC's own convictions and its much vaunted (yet currently somewhat eroded) moral claims. More than anybody else, the ANC is proud of the constitution as its showpiece to the world -- the ANC-ruled SA's example of what a constitution should look like.

Viewed against this backdrop, material changes to the constitution at the initiative of the ANC are clearly not on the cards. Hence the ANC's present denial that it wants to change the constitution is clearly credible. By leaving the -- its -- constitution basically unchanged, the ANC is faithful to the product for which it fought so hard and of which it is the primary architect. Substantive amendment of the constitution at the initiative of the ANC is therefore not to be feared, and the joy that it is now not going to happen any more is inappropriate and unrealistic.

History since the 2004 election of underscores the point. Although the ANC obtained a two-thirds majority and therefore had the ability up until this year's election to tamper with the constitution at will, it did not do so. It clearly did not sense any need for that.

But the fear and joy is also inappropriate for a second, and more significant reason, which is that the constitution does not change only when the text is formally amended in accordance with the amendment provisions (two-thirds of the members of the National Assembly and six provincial delegations in the National Council of Provinces, etc). Consonant with the dominant sociopolitical forces of the time, the constitution can and also does change unannounced, and even drastically, even though not a single iota of the text is amended.

In accordance with these forces, the constitution may undergo profound changes, or the existing text may acquire a meaning markedly different from what was initially envisaged, or from what the wording suggests. Or, certain provisions can simply silently fall by the wayside due to the operation of these forces. What is more, these changes may be drastic in spite of the stability of the text.

The constitution allocates significant powers to the provinces, to such an extent that the constitution was described as quasi-federal. However, the increased domination of the ANC over the past 15 years, nationally as well as provincially, caused a unitary-centralist change to the constitutional order. The ANC's own internal centralism and the provinces' own weak administrations further strengthen these unitary forces. The erstwhile quasi-federalism is long gone. Yet the text of the constitution still remains the same and does not reveal anything of this constitutional change that has taken place.

Representivity is but one of many factors to be considered in the appointment of judges, public servants and functionaries of other organs of state. However, inspired by the ideological convictions of the ruling party, representivity has developed through practice into the cornerstone of how almost all strictly non- private institutions are organised. Through practice this principle acquired a full-scale and pace-setting constitutional character that guides the state and economic sector as well as the civic sphere. Once again, the constitution was not amended to make provision for this. It is simply a sociopolitical force that has constitutionalised itself though practice.

The constitution provides for 11 official languages. Granted, that does not mean all these languages must of necessity be treated equally. However, it certainly also does not mean English is to be the only or predominant language of state, while all the others are left wallowing far, and ever further behind. Yet this is exactly what has been happening in spite of what the "entrenched" constitution provides. Through practice, under pressure of the preferences of the ruling party and other sociopolitical (among others demographic) forces, the official language dispensation underwent significant changes. Judged by the practice in this regard, the constitution's language provisions should have read that English is the sole official language, while various other languages may be used by the government. Hence practice has long since rendered the constitution's language provisions obsolete, thus profoundly changing this part of the constitution. Yet the constitution still suggests the opposite.

Many examples may be added to illustrate the same point. Personal security has to a considerable extent become a private responsibility in SA, discharged by individuals and civil society instead of the appropriate organs of state. This resulted from bad policy and our ramshackle security agencies, which are simply not capable of backing up the constitutional guarantees, thus rendering meaningless these guarantees in spite of their solemn entrenchment in the constitution.

According to all relevant constitutional and other legal criteria, President Jacob Zuma , like anyone else in a similar legal position, should have been prosecuted. Yet, the relevant political forces -- among which count the support that the president enjoys and the weaknesses of the prosecutorial authority -- were just too much for the law taking its course.

Whether the sociopolitical forces are good or bad is not relevant here. The only relevant point is that changes to the constitution and its meaning are clearly not limited to expressed amendments of the wording of the constitution. Hence, there may be joy that a two-thirds majority was fended off. After all, the trite constitutional doctrine -- as echoed in provisions of the constitution -- teaches that entrenchment prevents amendments of the constitutional text without a two-thirds majority. But constitutional doctrine is no more than doctrine. It offers no insight into or understanding of the dynamics of sociopolitical forces. Hence, even though the doctrine may inspire the belief that the constitution is supreme to the forces outside itself, it does not offer any understanding of how the constitution is delivered to socio-political forces for which the constitution is no match. The truth, in spite of what the constitutional clergy (not all jurists and also not limited to jurists) proclaims, is that the constitution is not as sovereign as the doctrine of constitutional supremacy would like us to believe. The constitution does not merely constitute its sociopolitical environs. More significant than that is that the constitution is also tacitly constituted and continuously reconstituted -- and thus changed -- by these forces, all without any changes to the text.

The joy about the ANC having missed the two-thirds majority is no remedy against this.

Malan is professor of public law at the University of Pretoria.