Institutional Recognition and Accommodation of Ethnic
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CORE Metadata, citation and similar papers at core.ac.uk Provided by UWC Theses and Dissertations Institutional Recognition and Accommodation of Ethnic Diversity: Federalism in South Africa and Ethiopia By YONATAN TESFAYE FESSHA LL.B Hons (Addis Ababa); LL.M (Pretoria) Dip. (Fribourg) A thesis submitted in fulfillment of the requirements for the degree of Doctor of Philosophy (Law) in the Faculty of Law, University of the Western Cape Promoter: PROFESSOR NICO STEYTLER FACULTY OF LAW UNIVERSITY OF THE WESTERN CAPE 9 June 2008 Declaration I declare that ‘Institutional recognition and accommodation of ethnic diversity: Federalism in South Africa and Ethiopia’ is my work and has not been submitted for any degree or examination in any other university or academic institution. All sources and materials used are duly acknowledged and are properly referenced. Yonatan Tesfaye Fessha Date ________________ 9 June 2008 ii Acknowledgment The preparation of this thesis would not have been possible without the help of a number of people. The most important contribution came from my supervisor, Professor Nico Steytler, who tirelessly read the drafts and provided insightful comments. The thesis benefited immensely from his perceptive comments. This work has also benefited greatly from the assistance of Reuben Baatjies and Annette Christmas who read and commented on various parts of the draft. I am also grateful for the insightful comments I received from Prof Jaap De Visser in the early stages of this work. I wish also to thank Christopher Mbazira and Woldekidan Kifle for all their work in the editing of parts of the thesis. My sincere gratitude goes to the Community Law Centre and especially Professor Nico Steytler for providing me the opportunity to be part of the Community Law Centre. I would also like to thank members of the Local Government Project, with whom I have worked for more than three years. Professor Jaap de Visser, Reuben Baatjies, Valma Hendricks and Annette Christmas have done a lot to ensure that my stay in the project went smoothly. For that, I am deeply grateful. It is also while working in this project that I met Coel Kirkby, with whom I have shared nice times not to mention a rich intellectual experience. I am also grateful to the staff of the Community Law Centre for providing supportive environment during my stay at the University of the Western Cape. Two individuals deserve special mention: Trudy Fortuin and Jill Claassen. For making me feel at home away from home and their constant support, I am grateful to Trudy Fortuin and Jill Claassen. Trudy never hesitated in assisting wherever she could. I offer thanks to Jill Claassen for her unfailing support and encouragement. Jill is the best research assistant that anyone can ask for. I would also like to thank Dr. Addisu Gebreigzabhier, who provided me free access to valuable collections on federalism and ethnicity at his office in the iii Ministry of Federal Affairs in Ethiopia. Similar thanks goes to Dr. Assefa Fiseha who avails important materials in the last leg of my research. I would also like to thank the Institute of Federalism, University of Fribourg, for providing me, in the summer of 2007, an opportunity to test ideas at the summer school. The experience has deepened my interest in the ever exciting area of ‘federalism and the multi-ethnic challenge’. Thanks also to all funders to the Community Law Centre, including Ford Foundation, for providing me financial assistance that enabled me to complete this thesis. I have also enjoyed and benefited a lot from the often lengthy but always interesting telephonic conversations I had with my friend Solomon Ayele in the course of this research. If I have successfully weathered the challenges of producing this thesis, it would largely be because the unflinching support and encouragement that I was blessed to receive from Wongelawit. I cannot imagine how I would have gone through this project if I did not have the benefit of being accompanied by the most kind, loving and reliable individual that I have ever come to know. She made it all much easier. I want to say thank you for putting up with someone who spent long hours in front of his computer. I am also grateful to Wongelawit for constantly inspiring me to be a better person. It is to her that my gratitude is principally due. My acknowledgement would not be complete without mentioning my sister K who has constantly been there for me through out challenging times. I know the joy that the completion of this doctoral study would bring to your face. The mere knowledge of that warms my heart. To my family and all my friends, whom I could not mention due to the constraint of space, I am truly grateful. iv Table of content Chapter One: Introduction 1 1. Background to the study 1 2. Statement of problem 3 3. Scope of the study 4 4. Significance of the study 6 5. Methodology 7 6. Limitations of the study 7 7. Structure 8 8. Argument 10 8.1. Recognition as institutional principle 10 8.2. The institutional principles of self rule and shared rule 12 8.2.1. Self rule 12 8.2.2. Shared rule 13 8.3. The federal response in a form of a ‘purpose continuum’ 13 8.4. The limits of federalism 15 Chapter Two: Towards the recognition of ethnic diversity 16 1. Introduction 16 2. Ethnic group and ethnicity 17 2.1. Ethnic group defined 18 2.2. The nature of ethnicity 22 2.2.1. The primordialist school 23 2.2.2. The instrumentalist school 24 2.2.3. The synthesis 25 3. Nation 31 3.1. Distinguishing a nation from an ethnic group 38 3.2. Nation and state distinguished 40 4. The illusion of nation-state building 43 5. Political divorce as a response to the challenges of ethnic diversity 47 6. The individual rights approach 50 6.1. The individual rights approach and the multi-ethnic challenge 50 6.2. The limits of the individual rights approach 56 6.3. Concluding remarks 61 7. The principle of recognition 61 8. Conclusion 69 Chapter Three: Federalism as institutional design to recognise and accommodate ethnic diversity 1. Introduction 71 2. Federalism and federation 72 3. Federation as a territorial arrangement 78 4. Federalism: An ideology or a pragmatic tool? 80 5. Accommodating ethnic diversity through federalism 82 5.1 Federalism as a promising alternative to manage ethnic diversity 84 v 5.2 Federalism as a poor device to manage ethnic diversity 86 5.3 Assessment 88 5.4 Concluding remarks 91 6. Institutional arrangements for recognising and accommodating ethnic diversity 93 6.1 Recognition 94 6.1.1. Preamble 98 6.1.2. Symbolic codes 100 6.1.2.1 Names and terminologies 100 6.1.2.2 Flag 101 6.1.2.3 The practicality of adopting an all-inclusive state symbols 102 6.1.3. Language policy 103 6.1.3.1 The personal model 104 6.1.3.2 The territorial model 106 6.1.3.3 Remark 108 6.2. Self rule 109 6.2.1. Territorial autonomy 110 6.2.1.1 Territorial or administrative federalism 110 6.2.1.2 Ethnic model of federalism 112 6.2.1.3 The dangers of providing a mother state to each large ethnic group 113 6.2.2. Division of powers and competencies 117 6.2.2.1 Competencies allocated 117 6.2.2.2 Symmetry and asymmetry 120 6.2.2.3 Concluding remarks 124 6.2.3. Fiscal autonomy 125 6.3. Shared rule 127 6.3.1. Lower house 129 6.3.2. Second chamber 133 6.3.2.1 Composition of second chamber 134 6.3.2.2 Powers of second chamber 137 6.3.2.3 Concluding remarks 138 6.3.3. Representation in the national executive 138 6.3.4. Fiscal equalisation as ‘fiscal glue of national unity’ 141 6.4. Federalism and the challenges of dispersed ethnic groups and intra-substate minorities 144 6.4.1. The plight of intra-substate minorities 145 6.4.2. Bill of rights as a device to protect minorities 147 6.4.3. Non-territorial autonomy 149 6.4.4 Representation of minorities 150 6.4.5 Concluding remarks 151 7. Conclusion 151 Chapter Four: Ethnicity in South Africa’s political and constitutional development 1. Introduction 153 2. The ascendancy of Afrikaner ethnic nationalism 156 3. The Black homelands: ‘Coupling ethnic differences and territory’ 160 vi 3.1. The homeland policy: An exercise of self-determination? 163 3.2. Assessment 164 3.3. The homeland policy and ethnicity 169 3.4. Assessment 171 4. Towards the Interim Constitution: The emergence of politicised ethnicity? 173 4.1. Ethnic conflicts? 174 4.2. Ethnicity in the constitutional options for a new South Africa 177 4.3. Concluding remarks 182 5. Accommodating ethnic diversity in the Interim Constitution 183 5.1. The status and use of language 184 5.1.1. Language for the purpose of government 184 5.1.2. Language in education policy 187 5.2. Self rule 189 5.2.1. Powers and functions 189 5.2.1.1 Provincial constitution making 189 5.2.1.2 Provincial legislative autonomy 191 5.2.2. Volkstaat 195 5.3. Shared rule 197 5.3.1. National Assembly 197 5.3.2. The Senate 197 5.3.3. The Government of National Unity 199 5.4. ‘Fundamental Rights’ 200 5.5. Constitutional Principles 200 5.6. Assessment 202 6. The political saliency of ethnicity in post-apartheid South Africa 203 6.1.