Provincial Government in South Africa

16–18 August 2000 Holiday Inn Garden Court Umtata Table of Contents

Introduction 5 Ms Xoliswa Jozana, Head of Department, Department of Political Science, University of the Transkei (Unitra)

Welcoming Remarks 7 Dr Michael Lange, Resident Representative, Konrad Adenauer Foundation

Opening Remarks 11 Ms Xoliswa Jozana, Head of Department, Department of Political Science, University of the Transkei (Unitra)

Opening Remarks 15 Prof. Peggy Nomfundo Luswazi, Registrar Academic, Unitra

Keynote Address: Provincial Government in South Africa 17 Mr Zam Titus, Director General, Ministry of Provincial and Local Government

International Perspectives on the Allocation of Powers Between the 21 Tiers of Government: The Case of Nigeria Prof. Jerry Kuye, School of Public Management and Administration, University of Pretoria

Intergovernmental Relations in South Africa: A Comparative Analysis 25 Mr Rashid Kalema, School of Government, University of Western Cape

Provincial Government in South Africa Since 1994 37 Dr David Pottie, Electoral Institute of South Africa

Igoli 2002: Towards a Megacity Government 49 Mr Sam Kongwa, Department of Political Studies, Unitra

3 Table of Contents

Public Participation in Provincial Legislative Processes in South Africa 53 Dr Greg Houston, Human Science Research Council

Accommodating Groupism in a Liberal Democratic Dispensation 71 Dr Eric Labuschagne, Department of Political Studies, Unitra

The Impact of Constitutional Relationships Between the Three Spheres of Government: 77 The South African Perspective Mr Sitembe Msaseni, Department of Political Science and Public Administration, University of Port Elizabeth

Transformational Challenges in Provincial Administration 85 Mr Masilo Mabeta, United Democratic Movement

The IFP Perspective on Provincial Government 89 Minister Narend Singh, Inkatha Freedom Party

Prospecting for Productivity: Enhancing Good Governance in the Provinces 97 Dr Heather Nel, School of Public Administration and Management, University of Port Elizabeth

Prospects for Provincial Government in South Africa: The Way Forward 107 Dr Mohammed Sutry, National Council of Provinces

Transparency International and the Fight Against Corruption 111 Ms Gladwell Otieno, Transparency International, Germany

Programme 117

Participants’ List 119

Seminar Reports 123

Occasional Paper Series 125

4 Introduction

The adoption of a political dispensation that could provide for the dispersal of political authority from the center to regional areas was a compromise reached by the negotiating parties before the 1994 elections in South Africa. Prior to that compromise, the African National Congress (ANC) favoured a strong central government, while the National Party advocated the devolution of strong powers to the regions.

During the constitutional negotiations, an agreement was reached on the decentralisation of government thereby giving significant powers to the regions. Strong regional governments were agreed on in order to encourage democratic participation, promote local initiatives and foster a redistribution of resources and economic development. Nine provinces were identified based on economic, social and population criteria.

South Africa, like Yugoslavia, is characterised by significant territorially defined communal diversities of, for example, culture, language, ethnicity as well as economic disparities. Historically, pluralist societies such as the United States, Switzerland and India opted for such devolution of power to states, regions or provinces so as to bring about national unity. National unity and political stability were equally influential in persuading the ANC leadership to agree to decentralisation of power to the provinces.

It is against this background that the need to evolve special arrangements to accommodate regional interests and demands for regional autonomy was recognised by the ANC government. However, the division of political authority and the distribution of political responsibilities as they relate to the two levels of government – central and provincial – have not been entrenched in the Constitution. South Africa’s provincial governments have little autonomy and indeed are weak in relation to the powers of the national government. All the provinces possess legislatures, cabinets and premiers that are concerned with local affairs such as education, health services, highways, tourism and fish and game. The public demand for services far outstrips the financial ability of both the provinces and the ailing local governments, particularly in the poorest of these provinces, the Eastern Cape. The performance of many of these provinces, therefore, has a mixed record.

The Department of Political Studies, in collaboration with the Konrad Adenauer Foundation, organised a conference on intergovernmental relations to address the problems that confront the system of provincial government in South Africa. The international conference entitled Provincial Government in South Africa took place in Umtata, Eastern Cape from 16 to 18 August 2000. This provided a forum for academics, non-governmental organisations, politicians, political parties and government representatives to share perspectives on the provincial system of government in South Africa.

The conference aimed at stimulating debate on the role and future of the provincial governments in South Africa and at generating proposals for capacity building and/or alternatives to the present politi-

5 Introduction cal dispensation. The papers were a blend of theoretical and practical contributions to the ongoing debate around ways of ensuring efficiency, democracy and more responsive governments in the provinces. The conference therefore provided a forum to take a fresh look at the Constitution and to find a new balance in intergovernmental relations.

Some of the key questions that the conference hoped to address were the following: How can the capacity of these provinces be enhanced to ensure delivery at this level of government? Are the provincial governments strong and competent to supervise and control local governments? Is the system of provincial government costly and wasteful in view of the duplication of political structures and functions? How can the system be modified in order to make it efficient and cost effective? More impor- tantly, is there an evident shift in South Africa from a quasi-federal structure to a more federal or more unitary form of government?

Ms Xoliswa Jozana Head of Department, Department of Political Science, University of the Transkei (Unitra)

6 Welcoming Remarks

Michael Lange

INTRODUCTION of human rights, assist economic development On behalf of the Konrad Adenauer Foundation as well as help to implement social justice and (KAF), I would like to extend a warm welcome the rule of law. to you all. This is now the fifth conference KAF is one of six political foundations in KAF has organised jointly with the University Germany today and is closely affiliated to the of the Transkei’s (Unitra’s) Department of Christian Democratic Union Party – a centrist Political Studies. political party founded after the Second World The forthcoming deliberations will focus on War. It proudly bears the name of one of its an issue which is of particular significance to founding members, Konrad Adenauer, who KAF, since questions relating to the role of subsequently became the first Chancellor of provincial governments in the new democratic post-war Germany. dispensation of South Africa have formed part The international activities of KAF are root- and parcel of KAF’s ongoing involvement in ed in the Christian concept of human nature. the consolidation of new political dispensa- By advocating Christian values, the Foundation tions, not only in South Africa but around the is helping to establish Christian Democratic world. principles not only in Germany, but worldwide. KAF has been cooperating with partners 1. A BRIEF BACKGROUND throughout the world for almost 40 years. For those wondering what kind of organisation Currently, some 80 colleagues oversee some KAF is, allow me to sketch a brief background 200 projects and programmes in more than 100 to the German political foundations and to out- countries. In this way, KAF makes a unique line some of the reasoning behind KAF’s contribution to policies serving peace and jus- involvement in academic endeavours of this tice in international relations. nature. The German political foundations are a 2. KAF IN SOUTH AFRICA unique feature of today’s democratic culture in KAF currently has wide-ranging programmes Germany. The move behind their creation – in different parts of Africa, as well as in the which dates back to the 1960s – was the expec- different provinces of South Africa. The tation that political and civic education would Foundation cooperates with centrist political help develop and consolidate democracy in parties and their respective think-tanks, as well post-war Germany. as with reputable education and research insti- Both in Germany and abroad, these founda- tutions, as witnessed by today’s event. tions seek to further develop and encourage Since the beginning of our involvement in people to engage in political debate, thereby South Africa we have actively participated in strengthening democracy and promoting a plu- projects concentrating on, among other things, ralistic society. By engaging in a variety of constitutional development at federal, provin- activities, they help to strengthen the concept cial and local levels.

7 Lange

A large number of the Johannesburg office’s such as Canada and Germany. South Africa – research and seminar publications have tackled as a result of well-intentioned advice – has constitutional issues, as can be noted from the developed a rather unique political dispensation titles of some of these publications: with much less provincial powers than is the • Implementing Federalism in the Final case in the Federal Republic of Germany. This Constitution of South Africa might explain the fact that the application of • The Final Constitution of South Africa: Local concurrency in South Africa is fraught with Government Provisions and their problems. Implications The new South African Constitution envis- • Future Challenges for Local Government in ages the development of legislation in the con- the 21st Century current field in a manner based on shared • Local-Provincial Government Relations responsibility between national and provincial • The Constitutional Basis of Local governments. Government The practice in South Africa, however, often • Constitution and Law creates the impression that national Parliament • Subnational Constitutional Governance is very active in the concurrent field, while the various provincial legislatures have only passed 3. FEDERALISM a limited number of laws on concurrent matters. Germany is a federal state. During the Kempton It can therefore be argued that provinces have Park negotiations, we believed strongly that the up to now not fully utilised their constitutional- new South Africa could gain from our experi- ly allocated legislative authority. ence with a federal system of governance. A reason for this may be found in the limited This conviction formed the basis of a strong drafting capacity of provinces compared to interaction ever since between the German gov- other spheres of government. ernmental aid agencies – such as the German We know that finding the required number of Agency for Technical Cooperation (GTZ) – and qualified people needed to run a decentralised, other semi- or non-governmental bodies – such more federal system of governance – with its as the German political foundations – the aim different tiers of government – is not an easy of which was to provide knowledge and experi- task, especially looking at the circumstances ence with our particular form of federalism. prevailing in South Africa. We have therefore The new constitutional system of South been providing expertise from Germany in all Africa designed at the Kempton Park confer- matters concerning cooperative governance, as ence and further refined in the Constitutional well as training for a number of different Assembly at Cape Town is, in the end, a decen- groups of government officials in all spheres of tralised system of government, i.e., a system government. with certain federal characteristics. At the Kempton Park constitutional negotia- CONCLUSION tions it was clear that the new provinces had to Germany, with its federal approach to gover- have some measure of legislative authority. nance, sets a reasonably good example in Some parties argued for more powers for the favour of provincial autonomy regarding the provinces while others were more centralisti- definition of rights and responsibilities, espe- cally inclined. cially in areas of particular provincial concern, The result of this debate was an agreement such as cultural affairs, education and taxation. that provinces should have a list of legislative Germany’s federal system is, however, not powers concurrent with the national govern- perfect – and this has become more apparent ment. This new concept in South African con- over the past couple of years. stitutional law, namely concurrency, has since Improvements also need to be made in South become an essential element of South Africa’s Africa. A recently published report by the new constitutional system. Minister of Provincial and Local Government challenges the state to reassess the roles, 4. CONCURRENCY responsibilities and relationships between the Concurrency is a concept that is accepted in provinces and the national government. some other decentralised or federal systems, Several aspects of the current system of co-

8 Lange operative governance in South Africa have whom government could rely for support, come under scrutiny and certain suggestions advice and the implementation of its develop- have been forwarded. ment programme”. A case in point is the power of taxation, This symposium is designed not only to stim- where the report concluded that, “… increased ulate debate on the role of provincial govern- taxation powers at provincial level could help ments in the current South African constitution- enhance accountability at the margin for al framework, but also to answer the difficult provincial expenditures …” question as to the extent to which a provincial Another point has been the effectiveness of constitutional framework may or may not give the National Council of Provinces (NCOP) and expression to a particular view regarding the the suggestion that the NCOP needs to carry rights and responsibilities of the citizens in out its oversight function more competently and question. effectively. Let these proceedings be KAF’s humble con- Criticism was also expressed about the effi- tribution to the resolution of all these difficult cacy of the intergovernmental forum which, the challenges. I wish you fruitful deliberations and report says, “… has failed as a multilateral, hope you find the forthcoming dialogue inspir- intergovernmental policy planning body upon ing and worthwhile.

9 Opening Remarks

Xoliswa Jozana

INTRODUCTION zens have, to the greatest possible extent, The theme of this year’s conference focuses on access to public services of comparable and perspectives on the provincial system of gov- optimal quality. However, it is important that ernment. The conference aims at stimulating each province has the means to pursue this debate on the role and future of the system of quest for quality in its own way. That requires provincial government and at generating pro- innovative and creative redistribution mecha- posals for capacity building and/or alternatives nisms to benefit even the less wealthy to the present political dispensation. It is hoped provinces. that the conference offers a forum in which theoretical and practical contributions to the ongo- 2. FUNDAMENTAL PRINCIPLES ing debate about the ways of ensuring efficien- Productive intergovernmental relations must be cy, democracy and more responsive govern- based upon certain principles and I propose ments in the provinces can be made. The con- four fundamental principles: ference is also an opportunity to take a fresh • Cooperation. More often than not, it is look at the Constitution and the way in which it important to cooperate because government can provide a new balance in intergovernmen- jurisdictions touch on each other in almost all tal relations. sectors of activity. The need for cooperation is obvious for purposes of pooling resources 1. INTERGOVERNMENTAL RELATIONS and talents to achieve national objectives. Let me take this opportunity to make a few • Fairness. For intergovernmental relations to observations about intergovernmental relations yield positive results, there must be a mea- in general, and South Africa’s provincial sys- sure of redistribution among the constituent tem in particular. entities of the system so that even the less The provincial system of government as a wealthy provinces are able to provide their power-sharing formula can be seen as an citizens with services of acceptable quality. answer to debilitating obstacles to progress in • Exchange of information and communica- the social, economic and political spheres. It tion. Exchanging information allows the has been perceived elsewhere as the most constituent units of the political system to viable formula for sustaining the ideology of compare their performance, assess their diversity in unity. The true genius of power respective initiatives and establish a healthy sharing among the levels of government there- emulation. Communication is essential for fore lies in the ability to reconcile diversity in effective public service and enhances the unity. relations among the three levels of govern- The provincial system of government has a ment. A communication breakdown between number of advantages in terms of governance, the different spheres of government in South management of the economy and democratic Africa has been identified as the cause of life. Its major objective is to ensure that all citi- poor relations among the three levels, result-

11 Jozana

ing in uncoordinated programmes and poli- ernment development problems by transfer- cies. ring them to local units of government. This • Transparency. Transparency enables the pub- pertains to a situation whereby responsibili- lic to be aware of the respective contributions ties are assigned to provinces without of the different governments. The public accompanying funding better known as must be able to assess the performance of ‘unfunded mandates’.” each province. The need for transparency in In other words, they are given tasks by the cen- the system is to gain trust with the public ser- tral government without the money to perform vants that administer programmes and pro- them. Consequently, the provinces are very vide funding for contracted services. weak and unable to provide effective service to their communities. The weak and non-viable 3. DIVERSITY subnational governments have given rise to the The reality of the diversities of culture, lan- debate on their relevance to South Africa’s guage and ethnicity must have been at the heart political system or, put bluntly, whether South of the adoption of the formula of power sharing Africa needs them or not. between the central government and the nine The provincial administrations are costly and provinces in South Africa. Historically, plural- complex and the public demand for services far ist societies such as the United States, India and outstrips the financial ability of the provinces. Switzerland opted for the devolution of power They lack money to finance programmes and to states, regions or provinces in order to bring officials are poorly trained and, in some about national unity. National unity and politi- provinces, corruption is rife. Mismanagement, cal stability were equally influential when the corruption, waste and inefficiency led to the major parties in the negotiation process in appointment of a commission by former South Africa agreed on the decentralisation of President, Nelson Mandela, to investigate their power to the provinces. This was a compromise operation. reached by the negotiating parties before the The report of the Maphai Commission rec- 1994 elections. Non-racial regional govern- ommended more control by central government ments were agreed on in order to encourage and a virtual takeover of weak provinces such democratic participation, to promote local ini- as the Eastern Cape. Owing to poor delivery, tiatives and to foster redistribution of resources corruption and mismanagement, the provinces and economic development. The nine regions in South Africa have few friends. Some critics were identified on the basis of economic, social have adopted a radical position to suggest that and population criteria. the provincial system is a disaster and must be scrapped. 4. WEAKNESSES OF THE SYSTEM To suggest that the provincial system must be The assumption behind the adoption of the sys- abandoned is an impractical solution to the tem of provincial government in South Africa reality on the ground in South Africa. Citizen was that the subnational units would perform groups at grassroots level have little chance of certain functions more effectively than the being heard by the centre and have far better national government. Provinces are responsible prospects at the provincial level. Even if South for delivery while the national government Africa were to switch to a unitary system, some retains responsibility for norms and standards. form of regional government offices staffed by The provincial governments, however, operate officials would be necessary. as implementing agencies for central govern- My point of departure in thinking about cen- ment. tral–provincial relations is the primary need for Cheema and Rondinelli in a book entitled provision of services to the people. Public ser- Decentralisation and Development Policy vice must be our watchword. The assumption Implementation in Developing Countries behind the provincial system of government, as observe: stated above, is the provision of public services. “In more than a few countries decentralisa- It is too easy to look at central–provincial gov- tion may have been seen as a convenient ernment relations in terms of concentration or way for national leaders to rid themselves devolution of power or from the vantage point of responsibility for regional and local gov- of a gain or loss for one level of government.

12 Jozana

To view provincial responsibilities in terms of How can the capacity of the provinces in who gets what ignores the aspect of public ser- South Africa be enhanced to ensure delivery at vice. Yet it is the citizens’ health, safety and this level of government? welfare that is at stake. Are the provincial governments strong and competent to supervise and control local gov- CONCLUSION ernment? I would like to pose a few questions that I hope How can the duplication of functions and will be touched on by the papers at this confer- responsibilities be improved? How can the sys- ence. tem be made efficient and cost effective?

13 Opening Remarks

Peggy Nomfundo Luswazi

INTRODUCTION ference contributes to the fulfilment of this On behalf of the management and university mission. community I welcome you as distinguished guests and participants to this meaningful con- 1. UNITRA–KAF COOPERATION ference. In Xhosa we say namkelekile, which This conference is a joint project of the simply means, you are well received. German-based Konrad Adenauer Foundation Those who have followed the national debate (KAF) and Unitra’s Political Science depart- in the media on the future size and shape of ter- ment. It is a long time since 1996, when former tiary institutions in South Africa are aware that Unitra Principal Prof. Moleah and I visited the this conference is taking place at a time when KAF offices in Johannesburg. The aim of that in the history of higher education, tertiary insti- trip was to introduce Unitra to KAF and other tutions – especially black institutions – are fac- German foundations. We were exploring possi- ing serious challenges with regard to their mis- bilities of establishing partnerships to foster sions and future identity. Unitra’s development and that of the region. Despite all these problems, the University of As a strategy to ensure success of our mis- the Transkei (Unitra) is optimistic and is facing sion, Prof. Moleah suggested I open the discus- the future with a problem-solving and forward- sion in German and that contrary to normal thinking attitude. Our planning and actions are protocol I should do most of the talking to guided by Unitra’s new mission which reads: appeal to the sentiments of our German col- “Unitra is committed to excellence in pro- leagues and soften their hearts. I did just that. viding service to its clientele through opti- Indeed, when later Prof. Oseghae, former Head mal utilisation of its resources, and in offer- of the Political Science department, put for- ing relevant and effective teaching, research ward a proposal for financing an annual confer- and community outreach programmes with ence, he found soft ground. All three confer- a special emphasis on the promotion of sus- ences that have taken place so far have put our tainable rural development.” Political Science department on the academic This mission is a commitment by this institu- and political map of this province, this country tion to become a major resource centre for the and indeed the world. development of the Eastern Cape. In my view, KAF deserves to be thanked for The university is refocusing its programmes contributing to Unitra’s development in the fol- to address through teaching, research and com- lowing ways: munity development activities, the key agenda • The conference has promoted national and of the region and province as reflected in the international networking and has made a dif- provincial integrated rural development strate- ference to the political and academic land- gy. scape of the province. We always look for- You are friends of the Eastern Cape; friends ward to this annual event. of Unitra in that your participation in this con- • The inter-party political debate which is

15 Luswazi

always an integral part of the programme theme of provincial governance. Our hopes contributes towards the peace dialogue. As were raised in 1993/94 by political scientists Alfonso Cabal in his book The University as and politicians who promised and assured us of an Institute Today writes: “Relations among the following: people are closer if they become dialogues.” I • That it is much easier for a country with a must admit that there was a time during the federal structure as opposed to a centralised anti-apartheid struggle when foreign organi- state to take account of regional problems, sations such as KAF were looked upon with and this appealed to many. Grassroots organi- suspicion by those engaged in the struggle, sations expected they would have a greater including myself. But engaging in open say in the affairs of the province. debate and dialogue at this conference means, • That a federal structure binds the country’s in the words of Alfonso Cabal, that we “sub- external unity with internal diversity. ordinate the stubborn and egoistic interests • That a federal structure enhances our engage- that often convert dialogues into quarrels and ment in the political process through regional we elevate them to shared values and aims”. and local elections which are easier to under- This must be done since, as Cabal concludes, stand and identify with. “dialogue can make hostile elements agree Although we note all these advantages, we harmoniously and efficiently”. ordinary people lack differentiated terms of ref- • We also recognise that KAF and all speakers erence to guide us in analysing how well or at this conference are here to promote scien- badly our province is faring in comparison to tific knowledge production. The German other provinces or to provincial systems else- word for science is wissenschaft. Literally, it where. All we read and hear about is chaos, means knowledge creation or production. corruption, etc. But is the story as simple as Wissen means knowledge and schaiffen that, or are the provincial problems so complex means to create or produce. Two German that they need a more sophisticated analysis in authors, Martin Thunert and Sylvia Neuner, order to enable us to arrive at workable solu- explain that politics is a field which constant- tions? We do not know, for instance, to what ly needs new ideas and concepts in order to extent our province participates in the national tackle complex and urgent tasks facing the legislative process. In the field of education we world. This conference then becomes a plat- are certainly more aware of national than form for an exchange of ideas between provincial legislature. Is this because there are science – the politically interested public no education laws passed at provincial level? especially in the province and those engaged Whether this marks a strength or a weakness, I in political practice. Unitra’s Political cannot tell. Science department then serves as a political think-tank to assist in preparing decision CONCLUSION makers for the process of decision making on We have also read that the province takes key issues in our society. responsibility and implements national policies • Having worked for development agencies in and laws, for example, the planning of building the past, when I hear the term “development projects. I therefore become concerned when, aid” I foresee problems because foreign aid travelling, for example, to Bisho or Libode, I easily creates dependence and can stifle see new settlements of crowded, tiny match box development. To the German development houses with no space for gardens: I see our scientist O. Odenstedt, aid between material- rural landscape change to slums under the new ly unequal partners is meaningful if it helps dispensation. To me, this is a contradiction. But people to help themselves. to whom do I direct my complaint, who is to blame? Is it the province, national policy or pri- 2. HOPES AND EXPECTATIONS vate industry? Finally, allow me to say a word about the hopes We hope this conference will lead us to and expectations of ordinary citizens and lay answers on aspects such as these. We wish you people like myself, on this conference and its fruitful deliberations in the days ahead.

16 Keynote Address: Provincial Government in South Africa

Zam Titus

INTRODUCTION Provincial and Local Government. When one There is much debate around the issue of focuses on the role of provinces one can there- provinces in South Africa. Some have the view fore not analyse this in isolation from the that we do not need provinces and others ques- broader challenges facing government. tion the number of provinces we have in the When delivering his 2000 budget speech in country. Others raise issues related to function- Parliament, Minister Mufamadi stated: al allocation, service delivery, mismanagement, “The issue of governance continues to etc. There is also the view that we should engage the minds of practitioners and switch over to a unitary system – for ours is a scholars all over the world. The first five quasi-federal system. years of democratic governance in our All these questions arise because we have a country has given us a basis to test the via- vibrant democracy which allows for freedom of bility of theories, systems and structures expression. In order for us to understand fully which are germane to this issue. There is no the debate surrounding provinces, we need to terminus, where, as practitioners, we sit understand the constitutional responsibilities of back and proclaim that our democracy is provinces. finally developed to perfection. In human Our provinces are a creature of statute. affairs there are always new issues to con- Initially, provision for the establishment of front, new methods to apply and new provinces was embodied in the 1993 Interim insights to discover.” Constitution. Thereafter, the Constitutional Assembly conducted an in-depth study into the 1. THE PRESIDENT’S COORDINATING COUNCIL governmental system that would serve our It was as a result of the continuing need for us country into the new millennium. to examine the system of government that, on The Constitutional Assembly considered the 15 October 1999, the President, the pre- numerous issues as well as reviewing the sys- miers of the nine provinces and the Minister for tems currently in use around the world. The Provincial and Local Government, agreed that reports of the various theme committees were the President’s Coordinating Council (PCC) be unanimous that we should establish a three-tier established. system, which ensures that government is The Council will not replace the Ministers brought closer to the people. and Members of the Executive Council The issue for government is therefore not (Minmecs). Minmecs have an important sec- about whether or not we should have toral function and will continue to deal with the provinces, it is more about ensuring that detail of policy and its implementation. The provinces are properly capacitated so that they Council, on the other hand, discusses frame- can give full effect to their constitutional man- work and transversal issues impacting on date. This standpoint led to President Mbeki – enhancing development, strengthening the in June 1999 – establishing a new Ministry for institutions of governance and improving the

17 Titus quality of service delivery. It will be supported things, to preserve peace, the national unity and by a forum of provincial director-generals and the indivisibility of the Republic of South relevant national director-generals and is con- Africa. Moreover, the fiscal regime of the vened by the Director-General for Provincial country ensures equitable allocations for each and Local Government. sphere of government within a framework of Among other things, the Council addresses tight fiscal discipline. the following issues: Some would call this structural arrangement • Enhancing the ability of provincial execu- quasi-federalism. In South Africa it goes by the tives to make an impact on the elaboration of name of cooperative government. Cooperative national policies. government is a product of the political forces, • Strengthening the capacity of provincial gov- the history and the aspirations of South ernments to implement government policies Africans. The principles of cooperative gover- and programmes. nance enable the three spheres to cooperate so • Integrating provincial growth and develop- as to ensure, among others, coordination, shar- ment strategies within the national developing of resources and the involvement of local ment plans. communities. • Improving cooperation between the national Given the challenge of reconstructing a coun- and provincial spheres of government with try divided for hundreds of years on the basis of regard to the strengthening of local govern- race, ethnicity, ideology and wealth, any blue- ment. print for government necessarily had to balance • Improving cooperation with regard to fiscal decentralisation and political competition with issues. common citizenship, national unity and a single • Enhancing cooperation with regard to the government, thus heralding the development of institutionalisation of a cooperative relation- the country. Cooperative government seeks to ship between the elected institutions and the achieve unity of vision, destiny and purpose, structures of traditional leadership. even as it recognises diversity of interest and • Ensuring that there are coordinated pro- opinion. grammes of implementation and the estab- Cooperation, it can then be said, is one of the lishment of the necessary structures with central pillars of the South African constitution- regard to such issues as rural development, al order. The will to cooperate, it may be fur- urban renewal, safety and security, etc. ther argued, is the impetus that was needed to • Increasing the possibility for all citizens to deliver the South Africa of today from hostility, interact with all spheres of government to conflict and stagnation. Arguably too, coopera- ensure that our system of governance function characterises the way in which government tions in a manner which empowers citizens. governs, as well as the institutional and policy architecture in key areas such as macro-eco- 2. COOPERATIVE GOVERNMENT nomic policy and regional and international One may ask what the character of the South relations. The Government of National Unity African state is: the answer might be found in (GNU) was an experimental form of coopera- section 46 of the Constitution. tive government. The Constitution creates a system of govern- Cooperation does not mean acquiescence ment based on the three spheres of government: agreement on everything or absence of dis- national, provincial and local government. Each agreement or subversion of valid viewpoints to has legislative and executive powers within its a dominant viewpoint. Nor is it a counterpoint own functional area, although the bulk of these to strong political and economic leadership. All powers are exercised concurrently between of these are accommodated within the Consti- national and provincial government or tution by principles such as multi-party democ- devolved to local government. racy, and independent institutions such as the These spheres of government are not inde- Human Rights Commission, etc. pendent of each other, rather they are dependent and interrelated yet functionally distinc- 3. THREE SPHERES OF GOVERNMENT tive. Each sphere of government is specifically The spheres of government must be understood directed by the Constitution, among other to be component parts of a larger single body,

18 Titus the government of the Republic of South building role: Provincial governments estab- Africa. This is clearly pronounced in the found- lish municipalities, and are enjoined by sec- ing provisions of the Constitution through the tion 155(6) of the Constitution to promote the statement that “the Republic of South Africa is development of local government capacity to one, sovereign, democratic state…” (Section 1). enable municipalities to perform their func- The preference for the word “sphere”, as tions and manage their own affairs. These opposed to “tier”, was premised on a deliberate responsibilities give provincial government attempt to ensure that all levels of government an important role in the institutional develop- were accorded equal status and treatment. The ment of municipalities. Constitution deliberately refers to the term • A fiscal role: Provincial governments play a “spheres”, as the term “tiers” would emphasise role in monitoring the financial status of the existence of a hierarchical relationship municipalities through the provincial task between the three levels of government, with teams implementing project viability. local government occupying the lowest rung. • A monitoring role: Provincial governments We cannot, however, deny – and must have a key role in monitoring local govern- acknowledge – the existence of a hierarchy of ment in order to ensure that high standards of sorts in our system of government as expressed public service and good government are in the monitoring, support and supervision sec- maintained. tions of the Constitution (sections 100, 125[3], • An intervention role: Provincial governments 139, 154[1] and 155[6]). What the Constitution are given powers to intervene in the affairs of attempts to emphasise is the need for coopera- local government so as to protect and pro- tive government as stipulated in Chapter 3. mote minimum standards of local govern- The existence of the three spheres in South ment service delivery and ensure that local Africa is fact. When analysing the role and government fulfils its constitutional mandate. place of provinces in our system of governance, What is the role of premiers? It is important to we have to bear in mind that provinces do not state that municipalities are required to work exist independently from the other spheres. with provincial and national government in Our Constitution assigns to provinces a num- order to enhance the effectiveness of provincial ber of strategic functions regarding the ongoing and local programmes. evolution of local government. The role of South Africa, like all other developing coun- provincial governments in this regard includes: tries, is faced with a number of challenges. In • A strategic role: Provinces have to develop a some instances, when searching for solutions, vision and a framework for integrated eco- we tend to focus on our constitutional struc- nomic, social and community development in tures. Sometimes we tend to forget that the pri- the province through the respective provin- mary challenge is to capacitate those who are in cial growth and development strategies. government and promote accountability. • A development role: Provincial governments What does this entail for an institution such should ensure that municipal planning and as the University of Transkei (Unitra)? Is the budgetary processes give priority to the basic curriculum at Unitra meant to address the needs of the community and promote social development needs of the Eastern Cape and economic development. Province? Are there any university programmes • An intergovernmental role: Provincial gov- specifically targeting the capacity needs of the ernments should establish forums and province? What about legislative drafting? processes for the purpose of including local Does the university have any project meant to government and traditional leaders in deci- promote good governance and to facilitate sion making. debate on complex and intricate issues such as • A regulatory role: Section 155(7) of the the monitoring and supervision framework for Constitution gives national and provincial South Africa; the challenges arising from glob- governments the legislative and executive alisation; the national overrides and the func- authority to see to the effective performance tional allocation as provided for in schedules 4 by municipalities of their functions through and 5? legislative and other means. Our academic institutions have a greater • An institutional development and capacity responsibility that transcends pure analytical

19 Titus work. We have to ask ourselves a number of optimise the work of our institutions of govern- searching and pointed questions – what can we ment. We have been able to identity weakness- do to assist this province and the rest of the es in the system; inasmuch as we have identi- country in deepening constitutional democracy, fied strengths and opportunities. So, when we enhancing good governance and promoting an consider the weaknesses in the provincial sys- environment which will bring about stability tem of government, we must do so having and prosperity. What work can an institution of focused on the entirety of our system of gover- this nature do to foster cooperative government nance. and strengthen our complex system of intergov- Our governance system is presently being ernmental fiscal relations, particularly issues reviewed, and we are looking at this challenge relating to the vertical split of revenue collected bearing in mind that governance institutions the nationally. world over, are restructuring to meet the chal- A doctor friend of mine often says that if any lenge of the 21st century. We are also aware part of your body gives you a problem, it that the global trends towards the restructuring should simply be chopped off. The continued of governance take place within the parenthesis existence or desirability of any constitutional of the twin pressures of globalisation and structure cannot be decided upon simply on the decentralisation. basis of its current performance. As our Our transformation is informed by the coun- President said: “the system of governance we try’s vision as embodied in the South African are working to create is radically different from Constitution, which is to “improve the quality the one we inherited.” Let us all bear in mind of life of all citizens and free the potential of that our nascent democracy is six years old and each person”, and to “build a united and demo- we also have to acknowledge that there is a cratic South Africa able to take its rightful yawning gap between theory and practice. place as a sovereign state in the family of Today, unlike yesteryear, we are aware that nations”. This should serve as our guide in the some provinces lack the capability to monitor, discussions about South Africa’s governance support and supervise local government effec- system and should also apply to the discussions tively, either due to their lack of capacity or relating to the provincial system of govern- absence of resources to do so. So what we may ment. want to look at are the options/strategies avail- I am convinced that the deliberations that will able to overcome this. We are also aware that unfold throughout this conference will con- some political commentators and politicians tribute immensely to the current debates. have suggested that provincial governments Indeed, this conference could not have taken need more powers if they are to be effective. place at a more ideal time. I have no doubt that While we should all be willing to entertain our discussions will provide government with these debates, we must, collectively, first assess some indication as to how this country’s acade- whether or not provinces have the capacity to mic institutions are positioning themselves dur- execute the current functions they enjoy. ing this phase of consolidation. Let us, together, build a winning nation. Our CONCLUSION centres of learning have a role to play in this Accruing from the experience of the past six regard: they must spawn real debate. years of democratic government, we have I trust that I have sown the seeds of action for acquired a better understanding of how best to – in the end – it is only action that counts.

20 International Perspectives on the Allocation of Powers Between the Tiers of Government: The Case of Nigeria

Jerry Kuye

INTRODUCTION the military to governance, all combined to cre- Military regimes should not be tolerated in the ate considerable standardisation and centralisa- pursuit of modern governance. The Nigerian tion. The states were governed, for instance, by situation should constitute a lesson for new military administrators who answered directly, democracies in understanding that the ability to not to the citizens of their states, but to the fed- abrogate civil liberties by a handful of “unedu- eral military government at the centre. The cli- cated rat packs” should not be allowed. max of this standardisation process was the The disgrace Nigeria faced for the past 30 local government reform of 1976 which saw years should not be allowed to repeat itself. the adoption of a uniform system of local gov- The lesson for South Africa is that it must con- ernment for the whole country, whereas under tinue to “civilianise” its armed forces and not our democratic system, the form and structure allow the confines of civil liberties to be taken of local government was entirely the responsi- for granted. The custodians of civil governance bility of regional or state governments – which must be protected within the confines of the would have in mind the need of the local gov- constitution. ernment system to reflect the diversity within These failures and the protracted political the state or region. Also, in 1976, seven new instability in Nigeria over the years, led to a states were created, bringing the total number dominance of the military in the running of the of states to 19. nation. The election of the new government of President Olusegun Obasanjo should constitute 2. THE CONSTITUTIONS the template for future governments. However, 2.1 The 1954 Constitutional framework the shape and size of the apparatus of the state, Nigeria became a Federation in 1954. This should be addressed. The implications of the Constitution provided for four regions – the three-tiered governance structure must be Northern Region, the Western and Eastern revisited. The multiplicity of states must be Regions and a Federal Territory – Lagos. The stopped and the real issue of managing the Constitution also established a Legislative economy should be brought into question. It is House and styled the House of Representatives, on this premise that this paper rests its case. which also legislated for the Federal Territory. The legislatures of the Northern and Western 1. OVERVIEW Regions were bicameral in nature with each The Nigerian Constitution of 1963 existed for a having a House of Assembly and a House of little over two years before the country was Chiefs. The legislatures of the East and the overthrown by the military on 15 January 1966. Cameroons were kingship based. This military incursion into the lives of Nigerians survived for 14 years. The prolifera- 2.2 The 1960 Constitution tion of states, the prosecutions of the civil war This is the second schedule of the Nigerian and the commandist hierarchical approach of Constitution. It marked the dawn of indepen-

21 Kuye dence from Britain with the parliamentary alise. It should, however, be noted that section Independence Act of 1960 from the British S.6 (6)(c) of the Constitution dealing with the Parliament. fundamental objectives and directives of the principles of state policy could be considered 2.3 The 1963 Republican Constitution unjust. This was a form of affirmative action. This Constitution lasted for well over two years The same principle applied to admission to mil- before the military overthrew the government. itary institutions. This marked the beginning of the Nigerian With respect to the structure of the Federal dilemma. Executive, the Constitution stipulated that the President shall appoint at least one minister 2.4 The 1979 Presidential Constitution from each state, who shall be an indigene of The 1979 Constitution was produced by a such state. But nowhere in the Constitution was Constituent Assembly and modified by the mil- the word “indigene” defined. Nor was there any itary. It was to take effect after almost 14 years provision in the Constitution as to conditions to of military dictatorship, and its aim was to jetti- be fulfilled before a “non-indigene”, howsoever son the parliamentary system in which colonial defined, could acquire the residency status of Nigeria had considerable tutelage, opting for the state of his/her domicile. the executive presidential system, generally The 1979 Constitution was in operation for a along the lines of the practice in the United little over four years before the elected civilian States. administration was once again ousted following The Constituent Assembly confirmed by con- another military coup d’etat. A period of four stitutional fiat the centralising and standardis- years was hardly enough time to put the Consti- ing propensities of the military. For the first tution to a critical test and to assess fully its time in Nigeria’s federal constitution making, merits and demerits in terms of promoting constitutions of the federating states were abol- “unity in diversity”. ished. There was now only one constitution for Nigeria and its component states. 3. THE SECOND MILITARY ERA Under the new arrangement, it was accepted The second coming of the military lasted for that the structure of the legislature of the states, almost 15 years (31 December 1983 to 29 May the structure of the state executive and the 1999). This was a period of hell for the inhabi- structure of the state courts were all uniformly tants of Nigeria. It was also a period of confu- regulated by the one constitution of the Federal sion regarding policy mandates. It marked the Republic of Nigeria (FRN). Even the number blatant abrogation of law and order and the vio- and names of the local governments existing in lation of the constitutional rights of most Nigeria were listed in the Constitution, notwith- Nigerians. standing that Section 7 thereof stated that: The 1989 Constitution, which had no life “The structure of local government by span of its own, called for the operational ele- democratically elected local government vation of local governance structures as a third councils under this constitution guaranteed tier of government. This led to the creation or that the government of every state should increase in state structures from 19 to 21. This ensure their existence under a law, which number subsequently increased in 1991 from provides for the establishment, structure, 21 to 30, and finally in 1997 from 30 to 36. As composition, finance and functions of such a result, the federal government grew steadily councils.” stronger and the state governments grew steadi- The 1979 Constitution made an effort to give ly weaker throughout the period of military every Nigerian a sense of belonging and had to rule. Due to the monopoly of power by the mil- do with the composition of federal, state and itary (now more than 29 years in 39 years of local governments. It was accepted that the Nigeria’s existence as an independent nation) composition of the local, state and other agen- Nigeria’s history is recorded with painful punc- cies would be structured in such a manner that tuations. the diversity of Nigeria would be reflected in its The Constitution also provided for three vice- deliberations. presidents and for power sharing at the execu- Strangely enough, this idea did not materi- tive level of the federal and state governments.

22 Kuye

It also established a Federal Character Com- • child support enforcement mission to elevate the federal character provi- • pre-trial detention centres sions of the 1979 Constitution to a level where • library services these provisions become justiciable. However, • agricultural extension the 1995 Constitution never materialised. • marriage certificates • birth certificates 4. THE 1999 PRESIDENTIAL CONSTITUTION • death certificates This Constitution was put into effect on 5 May • public school transportation 1999 by a military government. The opinion in • sheriff (providing public safety to those areas Nigeria is that the present 1999 Constitution outside the jurisdiction of incorporated cities does not address sufficiently the problems of or towns). the multi-ethnic, multilingual and multireli- gious construct of the Nigerian federation. This 5.2 City or town is evident in the latest series of ethnic clashes in A city or town’s responsibilities include: the north of Nigeria. • building permits Nigeria has today returned to democratic • parks and recreation civilian governance. Most Nigerians believe in • parking control (vehicle parking spaces) the indivisibility of the Nigerian nation state • animal control based on the principles of freedom, equality, • business names and business licences equity and justice for all her citizens as • police department enshrined in the Constitution. Many Nigerians • fire service are optimistic that as the search for “unity in • environmental sanitation diversity” continues over time, an acceptable • market allocation and development constitutional and conventional arrangement • estate development and town planning will evolve, which will satisfactorily address • property rates the ethnic, cultural, social and religious diversi- • sewer and water ty of the Nigerian population. • public works, street cleaning, maintenance, repairs, potholes, streetlights and outages, 5. LOCAL GOVERNMENT RESTRUCTURING traffic signal malfunction. Most Nigerians accept the fact that a dual structure of governance at local level is needed 6. SOME SOLUTIONS (although this creates a burden on the bureau- The political landscape of Nigeria can be cratic structure) and that the procedure for the changed through political accommodation. The incorporation of new states should be through a state structure needs to be revisited and the referendum. For a city or town, a two-thirds number of local governments need to be majority in the provincial council – simple in reduced. The capacity to pay and maintain the State Assembly – should support it; all these structures is not feasible under the current these proceeded by a referendum. It is further economic set up because the 768 local govern- contended that at the administrative level, an ment areas in Nigeria would need to be restruc- administrator and not a governor should handle tured to meet the actual needs of the 36 state the governance of the state. structure. The past political situation in Nigeria saw 5.1 State structure itself creating a panacea for the continued inter- Listed below are responsibilities state structures ference of civil democratic rights by the mili- should have: tary. Some so-called political scientists, even • public schools recently, have praised the position of the mili- • public health tary in Nigerian politics. The simple answer is • hospitals (can enter into private sector part- that they either benefited from the squandering nership) of the excesses of the military or, they them- • emergency medical services (ambulances) selves, were mere admirers of the idea of mili- • court buildings tary insurrection. • building inspections The provision of free primary education in • child protection service Nigeria was a luxury most Nigerians never ben-

23 Kuye efited from. Although the concept was laud- CONCLUSION able, the mechanics at local level were impossi- Are there failures in the current structure? The ble to implement. Healthcare continues to pose system at present comprises federal, state and a problem at local level. Service delivery is left local tiers of government. The complex nature to local councils and local governments to of ethno-politics and geo-economic structures implement. The issue here is that the three tiers makes it almost impossible to address all the of government in reality mushroomed into four, needs of the nation. with local municipalities unable to deliver to If we accept that the functions of local gov- the people. ernment are strictly in the areas of cities and On the political front, there needs to be a towns, then it is not surprising to note that most careful preservation of democratic values. With of the developments and service deliveries are the new government of President Olusegun in the capital centres where government oper- Obasanjo, tactical restructuring of the local tier ates. The rest of the jurisdictions within the needs to be examined. The ability to pay for third tier are left undeveloped. Service delivery goods and services calls into question the via- is almost non-existent. bility of the existence of most local government My core opinion is that Nigeria should aban- authorities. don the three-tier system and reshape the Some critical issues at all tiers of government bureaucracy to a two-tier operation. The costs in Nigeria must be addressed. These include the are minimal and service delivery ability will be actual nature of the federal state, the viability of increased. the current state structure of 36 and the finan- In a budget speech of 1999, the former Head cial consequences of managing the apparatus of of State, General Abdulsalami Abubakar, stat- governance. There is also the question of capi- ed: tal expenditure to develop new infrastructures “In 1999, the Federation Account Revenue at the various state levels. Is it wise to continu- is estimated at N262.4 billion. The existing ously create states just to address the political allocation formula will be maintained. volatility in which past and current govern- Therefore, the federal government will ments see them? The economic capacity of receive N127.2 billion; states – N63 billion; most of these states to function does not exist. local government councils – N52.5 billion; As the number of states continues to grow, so the Federal Capital Territory – N2.6 billion will expectations of the state and local tiers of and special funds – N17.1 billion” (1999 government. Budget, Nigeria). The preservation of geo-politics in Nigeria is Having said this, the economy still experienced a recipe for the future breakdown in the ability a severe shortfall. Therefore, the recipe for of these structures to maintain governing infra- good governance is one that calls into question structures. Does Nigeria really need the current the reality of having multitiered government state structure? structures in as complex a society as Nigeria.

REFERENCE THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999. Government Printer, Nigeria.

24 Intergovernmental Relations in South Africa: A Comparative Analysis

Rashid Kalema

INTRODUCTION tem of IGR will need to accommodate the aspi- The size and complexity of most modern states rations and vested interests of the different tiers is such that some form of decentralised or de- of government and at the same time manage concentrated authority is essential. Irrespective areas of disputes. However, this is a process of the federal or unitary character of a state, the that is as likely to be worked out in practice as number of tiers of authority, the division of to be dictated by legislative fiat. In that respect, powers between them and the financial South Africa has much that it can learn from resources they have at their disposal will all, in the experiences of countries elsewhere in the different ways, influence the overall perfor- world, since IGR are the subject of contestation mance of government both in the advancement and debate in most modern states. of democracy and in the delivery of services. Although South Africa’s history and social The new South African Constitution sets out and political economies have given distinctive the structure of the state and delineates, in character to the state, a comparative perspec- broad terms, the responsibilities of the different tive affords the opportunity to learn, from both tiers of government. As a product of the multi- differences and similarities, what the possible party negotiations which took place between consequences of perusing particular paths in 1992 and 1994, and which aimed to establish the development of IGR might be. This is not as broad a consensual base as possible, the con- to suggest just that a comparative perspective stitution provides an enabling framework rather has been overlooked thus far, but rather that than a prescriptive one. Thus, while it specifies comparisons have been drawn from a relatively that certain goals should be pursued, it does not narrow range of countries in Europe and North say how this should happen; in yet other America. instances it simply states that certain policies This comparative analysis draws from the may be followed. Because of this, national leg- experiences of six countries – Mexico, Brazil, islation must be enacted before many of the Argentina, Spain, India and Malaysia – hitherto provisions of the Constitution can be given little studied in the South African context. They effect. are all, with the exception of Spain, developing The development of an effective system of countries that have been through or are under- intergovernmental relations (IGR) in particular going periods of transition. will need to be supported by appropriate policy They are all, furthermore, states that have pronouncements and by legislation. The attempted with varying degrees of success to process, moreover, will be a complex one grapple with and accommodate political and which will entail striking a balance between the social diversity in their intergovernmental technical requirements for interaction between structures. The discussion in this paper is selec- the different tiers of the governing hierarchy tive and focuses on a number of key themes and the imperatives of political power rela- rather than a systematic analysis of IGR in the tions. The development of an operational sys- countries reviewed.

25 Kalema

1. THE CONCEPT OF IGR 1997 represented the formal and final repudia- Though focusing on local government, Botha tion of apartheid rule. Significantly, the Consti- provides an insightful definition of IGR. tution also specifies that in the configuration of “The concept of intergovernmental relations the state there will be “national, provincial and assumes importance where there is a divi- local spheres of government” and that these sion of powers at both administrative and will be “distinctive, interdependent and interre- legislative levels among different tiers of lated” (para. 40.1) The decision to describe the government. Put differently, it is creative different levels of government as “spheres” mechanism to maintain cooperative rela- rather than “tiers” was a conscious attempt to tionships and coordination among and move away from the notion of a hierarchy with between vertical and horizontal sites” all the connotations of subordinancy. In prac- (1996, p. 67). tice, however, this has not generally proven to Looking at the above quotation, we can deduce be the case, as the essence of hierarchy remains two things: first, that the IGR are forms of prevalent in IGR. interaction between various levels of government (vertical interaction) on the one hand and 2.1 State/provincial relations between equal governmental jurisdictions (hori- One of the most controversial issues in the zontal interactions) within a given state. debate that preceded the drafting of the Interim Second, that the definition alludes to coordi- Constitution was whether the South Farina nation and cooperation as objectives of IGR. State should be unitary or federal in nature. Redcliffe-Maud and Wood (1974) offer broader This reflected a tension between the need for perspectives of IGR: they include interventions, devolution of power – which was seen by the directions, control and consultations, and these African National Congress (ANC) alliance as do not always enhance coordination or corpora- being of importance in taking democracy to the tion. Instead these elements could work to rein- people – and the expressed fear that the devolu- force subjection of one level of government by tion of too much authority to the provinces, another, or such relations may take the form of could lead to a situation where the national assistance and support of one or more levels by identity would be thwarted by political intransi- another, particularly higher level of govern- gence at lower levels. Since then, experiences ment. in the province of the Western Cape, where the There is a tendency to restrict the description ruling National Party (NP) attempted to gerry- of IGR to formal, especially constitutional or mander municipal boundaries to exclude black legal, provisions. While these prescribed pat- communities, and in Kwa-Zulu Natal (KZN) terns are, however, important, they are almost where the provincial government expressed supplemented by formal, semiformal and infor- their intention to establish a Zulu kingdom, mal relations. IGR have also been classified have reinforced these fears (Tapscott, 1999). into constitutional, political and financial rela- The final Constitution stipulates that “the tions (Boraine, 1995). Boraine’s reference to Republic of South Africa is one, sovereign, the constitution is important in that the consti- democratic state.” Despite this, however, the tution is a product of national (central) govern- state reflects many of the characteristics of a ment legislature and all levels of government federal state and relations between the centre are by this fact subject to central government. and the periphery are, in some instances, not This implies that provincial and local govern- different from those in many federations. ments are subordinate to the national govern- Added to this, the demand for greater autono- ment and their relations reflect this fact. The my at the provincial level and for self-govern- position of central government vis-à-vis other ment at other levels, remains a source of dis- levels is the source of much misgiving, suspi- content which carries with it the potential for cion, debate and even mischief in IGR (Lungu, political and social instability. 1998). The new Constitution assigns authority to provincial legislatures to enact legislation with- 2. IGR IN THE NEW SOUTH AFRICA in their defined spheres of competence (para. – A COMPARATIVE PERSPECTIVE 114). It also spells out the functional areas of The adoption of a new Constitution in early exclusive provincial legislative competence as

26 Kalema well as areas of concurrent responsibility with In terms of constitution, the provinces osten- the national government. With provisos, the sibly devolve powers to the federal government Constitution also stipulates that “the implemen- and residual powers are seen to vest in the tation of provincial legislation in a province is provinces. In practice, however, the central an exclusive provincial executive power”. This state arrogates considerable authority to itself. implies significantly more autonomy than This is because the constitutionally defined sys- under the previous dispensation, where provin- tem of federation is based on three principles: cial authority largely represented de-concentrat- subordination, participation and coordination. ed power from the national government. Under the principle of subordination, the feder- There are, however, a number of conditions al government has supremacy by virtue of the under which the autonomy of a province may fact that it derives its mandate directly from the be overridden by national government. This federal constitution, which sets the parameters might occur “when a province cannot or does for constitutions drawn up by the provinces. not fulfil an executive obligation in terms of The constitution specifies the competencies legislation or the constitution”. The interven- assigned to the central and provincial govern- tion may be in the form of a directive to the ments as well as areas of concurrent responsi- provincial executive, or the assumption of the bility. Among the competencies assigned exclu- responsibilities of the province to fulfil its sively to the states are internal relations, the obligations. The conditions under which such right to federal intervention in other tiers of an intervention might take place, would include government, the right to declare martial law, as instances where essential national standards are well as a host of other responsibilities for the not being maintained, where economic unity or overall development of the nation. The inter national security are threatened or where a vireos competencies assigned to the provinces province’s actions are prejudicial to another are also extensive and are shielded by the con- province or to the country as a whole. stitution from arbitrary intervention by the fed- An assessment of IGR in the six country eral government, to administer primary educa- studies reveals that the unitary–federal state tion, among many other responsibilities. distinction is less a dichotomy than a continu- Among the competencies incidental to the um. That is to say, the use of the term “federa- provinces, is the right to raise standing armies tion” is of less consequence than the way in in the event of external invasion or imminent which power is devolved to lower tiers of gov- danger where delay would threaten the whole ernment and the competencies which they are nation. The decision would need to be ratified assigned. Thus, the Malaysian federation is a by the federal government. The provinces also highly centralised system which, in effect, control their own police forces although their devolves less authority to the states (provinces) competencies are narrowly confined to public than is the case in South Africa. security and the enforcement of hygiene and The establishment of federal states has some- morality laws. times been the outcome of efforts to amalga- Despite what appears to be extensive provin- mate and accommodate the political aspirations cial autonomy, the federal government reserves of pre-existing states which may not have considerable constitutional authority to inter- formed part of the national state. In Argentina vene in the affairs of the provinces and munici- the establishment of a federation arose as part palities if this is deemed to be necessary to of an attempt to resolve tensions between polit- enforce the federal constitution or to protect the ically powerful groupings in the major urban national interest. centre, Buenos Aires, and the largely autono- In India, IGR have predominantly revolved mous rural provinces. The founding of the fed- around centre-state relations with local govern- eration was based on three considerations: geo- ment, somewhat surprisingly, only gaining graphical (occasioned by the remoteness of the statutory status through the introduction of con- provinces and the need for a central base), ideo- stitutional amendments in the 1990s. It is of logical (the conviction that power should be interest to observe that state (provincial) bound- dissolved), and practical (managing relations aries were drawn up to accommodate ethno-lin- between the disparate provinces was extremely guistic divisions rather than according to eco- complex). nomically funded units. In that respect, the

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Indian Constitution allows considerable flexi- state government but, at the same time, under- bility to the Union (central) government to cre- scores the supremacy of national sovereignty. ate autonomous regions or district councils to In legal terms, the federal government and the accommodate the aspiration of specific ethnic state are co-extensive entities, both of which groups. This asymmetrical approach could be are subordinate to the Constitution. At the of relevance in resolving seemingly intractable national level the interests of the states are rep- boundary disputes such as those at Bushbuck resented through a second chamber similar to Ridge. the American senate. The Indian Constitution assigns government Despite this federalist structure, however, competencies according to a Union list, a State there have always been strong tendencies list and a Concurrent list – which collectively towards centralisation of power. Part of this determine the legislative spheres of the Indian centralisation tendency stems from the orienta- Parliament and State Legislature. The Union’s tion of the Constitution. The Mexican Consti- extensive responsibilities include defence, for- tution, like the South African, was drafted with- eign affairs, banking, currency and specific tax in the contest of a broad social programme – and levying. The state’s competencies include the Mexican revolution – to transform the state responsibility for public order and police, local and society. This vision was largely shared by government, public health, education and state all tiers of government and, in a sense, social taxes, among others. Even in those states that rights have tended to predominate over political are fully autonomous with their statutory rights. Since this national vision emanated from domain, the Union Parliament predominates the federal government, as a consequence, its over the State Legislature fields’. Thus the laws have historically been virtually identical to State Legislature is subject to the power of the federal laws. Union Parliament to legislate on matters enu- In the 1980s there was an attempt both to merated in the Union and Concurrent list. recognise and modernise public administration The central bias in the Indian Constitution is and to improve intergovernmental coordination. further reflected in the power which the Union Amendments to the Constitution in 1993 grant- government has to intervene directly in the ed the state the rights to participate in the for- affairs of the states. These include power in mulation of the National Development Plan. In terms of the proclamation of a state of emer- that year the Planning Act assigned to the fed- gency – subject to a two-thirds majority of the eral government the responsibility of convening Council of States (similar in function to the the state governments to develop a coordinated National Council of Provinces [NCOP] in system of national planning. South Africa) – power to legislate over matters In order to give effect to this intergovernmen- covered by the State list, where it is deemed to tal coordination, State Planning Committees be in the national interest; as well a proclama- (Coplades) were established ( building earlier tion of Failure of Constitutional Machinery, economic promotional committees (Coplades) made by the president declaring that the powers to coordinate planning between the federal gov- of a state legislature will be exercised by or ernment and the states. The Coplades also under the authority of Parliament . In addition, involved representatives from civil society in all state governors are appointed by the an effort to promote democratic planning. President of the Union, with powers of over- Municipal Development Planning Committees sight over the affairs of the state. Generally (Coplades) were also established to promote speaking, however, the Union government does coordination between a state and local govern- not intervene in the administrative activities of ment. Despite their laudable objective, the the states, and even in the case of concurrent Coplades suffered from their excessive size and responsibility, executive decisions are normally from a shortage of information for effective made at state level. planning. The history of IGR in Mexico has been one During the course of the past two decades, of continuing tension between the central gov- other steps were taken to promote IGR, includ- ernment and the states. Part of this tension ing the establishment of intergovernmental con- stems from the constitution which has some gresses. The first of these was the Individual form of “co-sovereignty” between federal and Coordination Covenant which was a mecha-

28 Kalema nism for the transfer of fiscal resources to indi- This is because IGR in Brazil are largely vidual state administrations according to estab- informal and rely on extensive political lobby- lished norms and criteria. After 1983 the con- ing and brokered deals between the different gresses were renamed Development Covenants tiers of government. The channel of lobbying is (Covenio Unico de Desarollo, CUD) and were generally upward with officials and politicians charged with coordinating federal and state from lower tiers, municipal councillors and activities in the promotion of regional econom- mayors, petitioning the state legislature. These ic development and the strengthening of munic- in turn petition congress people and senators, ipal governments. At this time, there was an while governors appeal to federal ministers and attempt to channel more resources to the state to the president. The relationships are seldom and municipal levels to give true meaning to structured, and rely on personal communica- the federal system. The National System of tion, telephone calls, faxes, etc. Federal Coordination (discussed below) was a further initiative in that direction. 2.2 Autonomous regions – the Spanish case A change of government in the early 1980s, Spain, in contrast, is considered quasi-federal however, saw an undermining of the covenant and yet devolves considerable power to its system and that of the Coplades, and increasing regions. The Spanish case is of interest, further, centralisation of decision making on financial in the way that power is devolved asymmetri- matters. It was argued that increased centralisa- cally to different parts of the country. Up until tion was necessary in that the decentralisation 1978 the state was divided according to central, of resources and responsibilities to the states provincial and local tiers of government. was leading to excessive bureaucracy and poli- Changes to the Constitution in that year intro- cy incoherence. However, a recent change of duced “autonomous regions” as a fourth tier of government has seen yet another swing back government between the provinces and the cen- towards decentralisation. This has become tral state. The establishment of autonomous politically necessary in that various state gover- regions was an attempt to accommodate the norships are now in opposition hands and the strong, and sporadically violent, demands for power relations between the states and the fed- self-government that were characteristic of eral executive are more matched. Spanish political life for much of the preceding In common with many countries in South decades. America, Brazil has passed through various Typically, an autonomous region is formed cycles of military and civilian rule. The federal through an amalgamation of two or more adja- system followed, nevertheless, derives from the cent provinces and municipalities with a com- American bicameral model, with a congress mon historical, cultural and economic back- and a senate. In terms of the Constitution, the ground. Alternatively, it might be comprised of three tiers of government (federal, state and a single province which has its own historical local) have both distinct and concurrent compe- identity. The decision to form an autonomous tencies. Most states assume responsibility for region is a voluntary one, adopted by munici- agriculture, finance, education, health, com- palities and provinces themselves, but goes merce and industry, among others, while the according to the provisions set down by the municipalities’ responsibilities are largely ser- Constitution in what are known as “statutes of vice oriented, for example, water, sewerage, autonomy”. In exceptional cases, the central etc. government may authorise the formation of an Despite the constitutionally prescribed com- autonomous region where this does not involve petencies of the states, the federal government more than one province. can overrule the state legislature when the Unlike the provinces which have no real national interest is threatened, when there is political autonomy and whose affairs are close- dangerous public disorder, or when state ly regulated from the centre, the autonomy con- finances are seriously in arrears. Such interven- ferred on autonomous regions assigns them tions are subject to a ruling of the supreme considerable ultra vires powers to manage the court and generally only occur after the break- affairs of the region. These include responsibil- down of lengthy talks between the federal gov- ity for the organisation of self-governing insti- ernment and the state government involved. tutions, the demarcation of municipal bound-

29 Kalema aries, regional legislation, town planning, hous- each autonomous region. The power to deal ing, transport and infrastructural development with recalcitrant regions, although latent within as well as many other sectoral responsibilities. the central government, is nevertheless real. They also have the right to generate revenue The establishment of autonomous regions through a variety of tax mechanisms. was, in essence, an attempt to resolve an In establishing themselves as autonomous, impasse in the political life of Spain and to regions may decide on a “fast lane” or a “slow blunt the secessionist ambitions of the Basque lane” in achieving their autonomy. Those and Catellonian regions, among others. To that choosing the fast lane will assume immediate extent, it has been considerably successful. At responsibility for the competencies assigned to the same time as indicated, this arrangement them in terms of the Constitution. Those in the has not served to emasculate the central gov- slow lane assume full responsibility progres- ernment, which still retains considerable power sively over a five-year period. This provision to manage the state as a whole. ensures that the lack of capacity is not a limit- Although the demands for provincial autono- ing factor to political demands for regional my in KZN, or for a Boere Staat elsewhere, autonomy. have not reached the levels of Spain in the Although autonomous regions have the com- 1970s, the Spanish option might be considered petence to legislate on a wide sphere of activi- in the long run if the current system of IGR ties, their status does not confer on them any proves to be incapable of accommodating these economic or social privileges that are denied to political aspirations and, in the case of KZN, of Spanish citizens living elsewhere in the coun- stemming the ongoing violence. try. That is to say, irrespective of the form of government under which they live, all Span- 2.3 The role of the provincial/state governor iards have the same rights and the same free- The role of the provincial/state governor is dom of movement to reside or work wherever worth comparing with that of provincial pre- they choose. miers in South Africa. In Argentina and India, Despite the considerable authority devolved one of the mechanisms employed by the central to autonomous regions, the central government government to ensure that national policy is still retains considerable power over matters of implemented at the provincial level, is the national interest. Thus it assumes responsibility appointment of provincial governors to act as for international relations, defence, the admin- agents of the federal government. This provi- istration of justice, labour legislation, foreign sion is a powerful one in that it ensures central trade, banking and planning of the national government oversight of the activities of the economy, in addition to a host of regulatory provinces. It is noteworthy, that in instances responsibilities. Furthermore, while the ultra where provincial/state governors are political vires competencies of autonomous regions are appointees of the ruling party, the central gov- extensive and protect them from central government appears to have more confidence in ernment, they are also subject to exceptional devolving far reaching powers to the provinces, clauses in the Constitution. and particularly control over the provincial Thus, if an autonomous region fails to com- police force. It must also be noted, however, ply with obligations imposed by the Constitu- that arrangements of this nature are often the tion, or if it acts in a manner which threatens source of discontent, in that they are seen to the national interest, the central government undermine the political autonomy of the may issue directives to the president of the provinces. region to comply with the legislation. Should In Brazil, in contrast, governors are directly these directives be ignored, the government elected in each state and wield considerable may – following an absolute majority of the political and economic power. Many own, or Senate – adopt measures to ensure that the control, the main local media (television being region fulfils its constitutional obligations. In the most popular of these). They also control that respect, it is important to note that, in addi- the state’s budget and disbursement, the state tion to defence, security and law and order are police and are responsible for all state-level national competencies, and a delegate appoint- political appointments, in addition to state oper- ed by central government manages the police in ated banks. Typically, these governors also

30 Kalema exert influence over the state delegation in con- tion. On balance, however, the outcomes of dis- gress. For these reasons, the president, federal putes are weighted in favour of the national ministers and other agencies must weigh up government. carefully the demands, as well as the power, of The national government has established a certain governors when elaborating major poli- number of mechanisms to promote IGR. These cy decisions, especially when there are conflict- include the intergovernmental forum (IGF), ing demands and when congress’s approval is Ministers and Members of the Executive required. Council (Minmecs) and technical intergovernmental committees. The issues raised by the 3. MECHANISMS FOR THE PROMOTION OF IGR IGF thus far, have tended to address rather dis- AND DISPUTE RESOLUTION tinct and technocratic issues, but have not really Chapter 3 of the South African Constitution touched on the substance and processes of IGR. spells out the parameters for the promotion of They have also not seriously addressed how cooperative governance and emphasises the intergovernmental structures might be ratio- fact that the three tiers of the government have nalised, nor have they defined the specific role distinct powers and responsibilities which must of intergovernmental institutions. At the same be respected. These parameters specify, inter time, thus far, the Minmecs have not been well alia, that all spheres of government must integrated with the IGF, and the IGF is not pro- “respect the constitutional status, institutions, viding overall coordination of the Minmecs. powers and functions of government in other The recent establishment of the NCOP pro- spheres; exercise their powers and functions in vides a direct channel for provincial govern- a manner that does not encroach on the geo- ments to participate in policy formulation at graphical, functional, or institutional integrity national level. Although the Constitution also of the government in other spheres”, etc. makes provision for the national government to The Constitution further specifies that the override the objections of the NCOP, this different tiers of government must cooperate would require a two-thirds majority. Such an with the others “in mutual trust and good faith”, override, however, would require a consider- inter alia by “fostering friendly relations”, by able degree of unanimity among political par- assisting and supporting each other, by coordi- ties at the national level. nating their actions, adhering to agreed proce- A similar mechanism has been institution- dures and by avoiding legal proceedings against alised in Argentina to ensure that the provinces each other. These values, however, represent are, to an extent, able to participate in the for- statements of intent rather than a formula for mulation of federal policy. A bicameral system action. of government makes provision for a congress At present there are no formal procedures and senate; three senators from each province specified for the achievement of this intergov- represent provincial interests at the federal ernmental harmony – if, indeed, this were ever level. possible – and an organ of state involved in an All six countries reviewed are constitutional, intergovernmental dispute is exhorted to defined as federations, with the implication that “exhaust all remedies before it approaches a the state governments have a substantial degree court to resolve a dispute”. (para. 41.4) An act of autonomy from the centre. In practice, in all of parliament is required to establish appropri- six cases the federal governments reserve con- ate mechanisms and procedures to facilitate set- siderable authority to intervene and overrule the tlement of intergovernmental disputes. (para. decisions of subordinate tiers of government. 41.3) Although the threat of intervention is latent, Where conflicts between national and provin- rather than actualised, it does nevertheless set cial governments do arise, national legislation the parameters for IGR, and asserts the primary will prevail. These relate to threats, national role of the federal government. policies, norms and standards, to national secu- It is evident, however, that the central gov- rity, economic unity, the environment, the pro- ernments seldom invoke their override powers motion of equal opportunities, etc. (para. 146). and rely, instead, on politically invoked solu- If none of these conditions apply, then provin- tions or institutions established to promote dis- cial legislation prevails over national legisla- pute resolution. Thus, in Spain a Constitutional

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Tribunal is empowered to resolve disputes over Federal Court, the country has been singularly competencies. The decisions of the Constitu- free from intergovernmental disputes and only tional Tribunal, which functions like the two formal cases have been addressed in the Constitutional Court in South Africa, are bind- past 40 years. ing. The Constitution also makes provision for This seeming harmony is a function of sever- “laws on harmonisation” which are intended to al factors. Firstly, the central government’s promote coordination and cooperation between powers are overwhelming, while the states have the central government and autonomous only minor powers; secondly, constitutional regions. These may be resolved either by the provisions are heavily weighted in favour of the Constitutional Tribunal or in an ordinary court centre, and thirdly, the central government and of law, depending on the substance of the dis- all the state governments – except one – belong pute. In general, however, attempts are made to to the same coalition party, which has dominat- avoid conflicts through the reciprocal referral ed the political arena since independence. In of reports on interventions and resolutions this context, most intergovernmental disputes between local institutions and the state and are settled at party level. Despite this, the autonomous regions. At the same time, the Malaysian Constitution makes provision for establishment of a National Commission for various councils (a National Finance Council, a Local Administration and Provincial Commis- National Land Council and a National Council sions, promotes collaboration between munici- for Local Government) to encourage uniformity palities and provinces. at the state level in terms of legislature, policy In the case of Argentina, the principle of the and implementation. Both state and federal supremacy of the federation is such that the governments are compelled to consult these central government complies with federal law, councils (which have state and federal mem- and this may be enforced by provincial militia bers) with respect to legislation and policy. that are subject to federal control. One further instrument is available to central In the first three decades of the Indian state’s government to exert its will over the states, this existence, intergovernmental disputes were relates to its sole right to amend the Constitu- generally resolved in the ruling party’s caucus. tion in Parliament. The arrangement, similar to This was because the Congress Party was in that which prevailed in South Africa prior to control of both the Union and most of the state 1994, permits the ruling party to change the governments. Since then, hegemony of Con- Constitution to suit its own needs. The gress has diminished and intergovernmental Malaysian situation points to the restrictions disputes have become more contentious. On placed on equitable IGR when a constitution is balance, dispute resolution is heavily weighted subordinated to parliament. Under this arrange- in favour of the central government. This is ment, any legitimate challenge to central gov- because the President’s power to intervene in ernment policy made by a state government centre-state relations is mandated by the consti- may be rendered illegal by the federal govern- tution and is considerable. The Proclamation of ment exercising its rights to amend the consti- Emergency due to what is termed a “failure of tution. constitutional machinery” (popularly known as the president’s rule) has been invoked in a 4. FINANCIAL MATTERS number of instances and remains a problematic Control over the distribution of financial issue in central-state relations. resources and the amounts allocated to the dif- In instances of interstate dispute, the Union ferent tiers of government are among the most Parliament is constitutionally empowered to contentious issues in IGR throughout the world. adjudicate contested matters. In addition, the In South Africa the Constitution makes provi- president is empowered to establish an inter- sion for the allocation of financial resources, state council to investigate and advise on dis- for budgeting and for treasury control. It also putes that have arisen between states, to make stipulates that national legislation is necessary recommendations and to facilitate better coor- to give effect to most of the important provi- dination between them. sions on the allocation and disbursement of Although provision is made in the Malaysian public funds. Among the more significant pro- Constitution for dispute resolution, through the visions made by the Constitution are that there

32 Kalema must be an equitable division of revenue raised all major sources, while the power of the state nationally among the national, provincial and to raise income is confined to water rates, local spheres of government. The criteria under licences and rents on state property, among oth- which revenue is allocated to the different tiers ers. Each state, however, receives a captivation must take into account various factors including grant from the central government, according to the national interest, the national debt, the fiscal the size of its population. Additional grants capacity and the efficiency of the provinces and may be made to any state by the federal parlia- municipalities, as well as their development ment entirely at its discretion. needs and the economic disparities between In 1980, Mexico inaugurated a National provinces. The Finance and Fiscal Commission System of Federal Coordination as a mecha- will play an important role in deriving appro- nism for more equitable revenue sharing by the priate formulae for the allocation of revenue. three levels of government. The system was an From a comparative perspective, the Argen- attempt to develop a more integrated tax base tinean federal Constitution assigns considerable which would avoid the multiplication of taxes competence to the provinces to raise local across three tiers of government. It was also taxes, to establish provincial banks and to man- intended to promote a more participatory and age their own financial affairs. Although the less discretionary system of grant allocation Constitution assigns specific sources of revenue from the federal government to the states. to the central government and the provinces, Despite the best intentions of this system of fis- constitutional reforms in 1994 established cal coordination, it has served to increase rather mechanisms for the equitable disposal of all than decrease the states’ dependency on central funds raised by the different tiers of govern- government. This was because, in the drive to ment. Under the Federal Joint Participation of create a more integrated and uniform tax sys- Taxes law, 42.3% of revenue is allocated to the tem, they lost control over a number of lucra- central government, 56.6% to the provinces and tive tax sources – value added tax (VAT), for one per cent to the national treasury. This split example – which were taken over by the federal was made according to agreed criteria on the government that still controlled 81% of the specific responsibilities and needs of the differ- national revenue and accounted for 78% of ent tiers of government. spending, indicating that both income and In India, the central government has greater spending remain highly centralised. powers of taxation than the state but, according In Brazil as discussed above, IGR are largely to constitutional principles, it is obliged to dis- a matter of power brokering. In the allocation tribute a portion of this revenue to the states. In of revenues to the different tiers of government that regard, there are four kinds of tax sharing, this system applies no less and emphasis is gen- namely: erally placed on those areas where the federal • Duties levied by the Union and appropriated government derives its principal support. Local by the states. governments have been allowed to own their • Taxes levied and collected by the union and own banks and, since 1987, have been permit- distributed between the union and the states. ted to receive loans directly from the multilater- • Surcharges on certain duties and taxes for the al funding agencies – although these are under- purposes of the union. written by the federal government. • Taxes which are levied and collected by the The 1987–1998 constitutional assembly, in union and which may be distributed between particular, was strongly oriented to state and the union and the states. municipal interests and in addition to inserting The principles for the sharing of these taxes and revenue sharing bloc grant formulas into the duties are decided upon by a Finance Commis- new Constitution, also reduced the federal gov- sion appointed by the president for a five-year ernment’s overall share of tax revenues. This period. Despite their attempts at objectivity, the step was, however, taken without a concomitant resolution of successive finance commissions decrease in the responsibilities of the federal have been heavily criticised by the states, and government (and by implication, a reduction in fiscal federalism remains a source of consider- its expenditure obligations) and this in turn lead able intergovernmental tension. to chronic budgetary deficits at the national In Malaysia, the central government controls level. This crisis necessitated the introduction

33 Kalema of a Fiscal Stabilisation Plan which empowered pertinent in the case of municipalities which the Minister of Finance to reduce and or sus- presently lack capacity. pend transfers to the state and municipal levels, • Labels such as “federal” and “unitary” are as a temporary measure. The implementation of less important than the manner in which IGR this plan entailed a protracted process of bar- are structured and function in practice. gaining, involving the minister of finance, gov- • The political dimensions of IGR are always ernors, state finance secretaries and senators the most contentious and mechanisms are and represented something of a triumph for needed to accommodate them. politically brokered IGR. • IGR in South Africa tend to focus on rela- In that respect perhaps the most significant tions between the central government and the feature of national fiscal affairs in Brazil is its provinces. The case of Mexico, however, overly political nature. The allocation of the points to the potential of involving local gov- national budget, in particular, involves intense ernments in joint planning structures. lobbying at congressional level, as members of • The effective flow of information between congress, senators and other political figures the different spheres of government is essen- strive to achieve the best deals for their home tial to the development of an affective IGR constituencies. This process, which is some- system. what chaotic at times, is seen as preferable to the technocratic formula-based funding that CONCLUSION existed under the military regime. Critics of the The South African Constitution makes provi- technocratic approach point to the fact that the sion for national legislature to regulate IGR. formula applied failed to take into account Yet as the six country studies illustrate, IGR are regional disparities, local issues or the socio- always dynamic and evolve over time to economic standing of different communities. accommodate changing social, economic and Perhaps the most important lesson to learn political relations. Attempts to codify IGR, from the Brazilian experience is the fact that while they might bring greater legal precision where a constitution assigns considerable fiscal to the process, will not necessary relieve inter- autonomy to lowers tiers of government, the governmental tensions and may, in practice, potential exists for uncoordinated financial aggravate them. This is because the most con- management, overspending and ultimately ram- tentious issues in IGR as indicated are general- pant corruption. This is because the provincial ly of a political, not a technical nature. Policy governments have little accountability other framed to support IGR should therefore take than to themselves. The collapse of the state cognisance of the need to maintain a flexible economies, however, impacts adversely on the framework for promoting greater cooperation national economy as a whole, worsening between the different spheres of government. deficits and driving up inflation rates. In the final analysis, it must also be borne in mind that neither a constitution nor an effective 5. LESSONS FROM THE CASE STUDIES system of IGR can guarantee political stability The structure of government, and by implica- in a country. Certainly the recent histories of tion the structure of IGR, may be set up asym- Argentina, Brazil, Mexico and Spain have been metrically, and need not apply to all provinces troubled ones, swinging variously from democ- or local governments in the same uniform way. racy to dictatorship, military rule and back to That is to say, political realities may sometimes democracy. While sound IGR are not a suffi- need to shape IGR rather than the converse: cient condition for a stable democracy, their • Competence can be assigned to lower tiers of absence is, however, likely to aggravate the sit- government gradually; this is particularly uation.

34 Kalema

REFERENCES

BORAINE, A. 1995. Central, provincial and local Technikon, Port Elizabeth, South Africa. relations in South Africa, in Reddy, P.S. (ed.) March 9-14. Perspectives in Local Government Manage- LUNGU, G.F. 1998. Local provincial ment and Development in Africa. Pinetown, Intergovernmental Relations: A comparative South Africa: Kohler Carton and Print, for Perspective. A paper presented at the University of Durban - Westville. Intergovernmental Relations Summit held at BOTHA. T. 1996. Intergovernmental relation - the VW Conference Centre, Midrand, The South African experience, in Reddy, P.S. Gauteng South Africa, April 22–23, 1998. (ed.) Readings in Local government Manage- OYUGI, W.O. 1985. Local government in ment: A Southern African Perspective. Kenya: A case of institutional decline, in Kenwyn, Cape Town: Juta Co. Ltd. pp. 67- Mawhood, T, (ed.) Local Government in the 81. Third World: The Experience of Tropical DCD. THE INTERGOVERNMENTAL RELATIONS Africa. Chichester, England: John Wiley & AUDIT. 1999. Towards a culture of coopera- Sons. pp. 107-140. tive government. The final report of the REDCLIFFE-MAUD, J.P. AND WOOD, B. 1974. Intergovernmental Relations audit. English Local Government Reformed. December, 1999. London: Oxford University Press. LUNGU, G.F., MADZIVHANDILA, L AND ISMAIL, REPUBLIC OF SOUTH AFRICA .1996. Constitution N. 1996. Decentralisation policies of local of the Republic of South Africa, 1996. government in Anglophone Africa: Lessons Constitutional Assembly, Cape Town: for South Africa. Administrato Publica. Vol. Government Printers. 7 No. 1, pp. 34-35. TAPSCOTT, C. Intergovernmental relations in LUNGU, G.F. 1997. Intergovernmental South Africa – A comparative analysis, in Relations. A paper presented at a conference Intergovernmental Relations: An Internation- on training for Emergent Local Government al Comparative Study. School of Government Managers of the Executive Leadership and the national Democratic Institute for Institute for South Africa, at Port Elizabeth International Affairs. UWC, Cape Town.

35 Provincial Government in South Africa Since 1994

David Pottie

ABSTRACT 1994 negotiations, the National Party (NP) – Provincial government, initially a product of now called the New National Party (NNP) – the negotiated political transition in South and the Inkatha Freedom Party (IFP) were the Africa, has subsequently become an entrenched strongest proponents of strong regional govern- feature of South African politics following the ment and a federal state structure for South passage of the Constitution in 1996. The struc- Africa. As Lodge has written: ture and form of provincial government thus “The case for South African democracy’s reflects a careful balancing act structured by assuming a federal form was based chiefly the shifting power relations of post-apartheid on the supposed political benefits of a South Africa. The country is neither explicitly multi-centered political dispensation in eth- federal nor centrist, although provincial nically divided societies. Dividing execu- government finds itself in a peculiar, and tive authority between central and regional sometimes precarious, position vis-à-vis both government would give minorities, defined national and local government. For example, in different ways, a stake in the system.”2 provincial government has relatively few areas Both the NP and the IFP were able to protect of legislative autonomy and is highly depen- their regional power bases through the promo- dent upon the national government for financial tion of decentralised state power. The prospect transfers since its lacks revenue powers. In of gaining regional office was therefore a electoral terms, however, the diversity of politi- strong drawcard for parties that could not hope cal parties represented in provincial legislatures to achieve political power at national level. suggests that it be regarded as a level of state While the NP is the majority party in the office worth contesting. This paper surveys Western Cape, the IFP stronghold is in Kwa- several aspects of this position, including elec- Zulu-Natal (KZN) and as a result each party toral, political and financial considerations holds the premier’s post in the respective about the sustainability of provincial govern- provinces. Although South Africa (and seven ment in South Africa. of the provinces) was governed by the African National Congress (ANC) – as the leading part- INTRODUCTION1 ner in the Government of National Unity In 1994, nine provincial governments and leg- (GNU) – the IFP and the NP also had a stake in islatures were introduced to the people of parliamentary politics with their regional South Africa. strongholds. The current make-up of provincial govern- While federalism did not appear among the ment is largely a result of the pre-election 34 constitutional principles that laid the negotiations over the form of the post-apartheid groundwork for the Interim Constitution of state system. South Africa was to settle on a 1993, it was nevertheless implied in at least 10 three-tiered system of government with nation- of the principles and in the division of concur- al, provincial and local government. In the pre- rent and exclusive powers for national and

37 Pottie provincial government.3 Federalism was also and competing territorial administrations. In retained in the drafting of the final Constitution KZN, a different solution was found with both of 1996. Devenish notes that the 1996 Constitu- Ulundi and Pietermaritzburg serving as dual tion was designed to promote cooperative fed- capitals and the provincial legislature rotates eralism rather than competitive federalism.4 between the two cities. Moreover, the choice of However, as will be shown below, the emerg- provincial capital played a role in a provincial ing politics of federalism in South Africa has boundary dispute involving the Bushbuckridge not necessarily led to strong and effective region of the Northern Province. The residents provincial government. In fact, financial insta- preferred to be serviced from the Mpumulanga bility, political turmoil and calls from some capital of Nelspruit, only two hours away by quarters to re-think the role and purpose of car, rather than the Northern Province capital of provincial government have marked the experi- Pietersburg, which was an overnight drive. ence of provincial government since 1994. Lodge argues that this political affiliation is a good sign that formal borders aside, popular 1. BUILDING PROVINCIAL GOVERNMENT political affiliations are in the process of being The establishment of provincial government reconstructed around regionalism.5 posed a number of administrative and financial challenges for South Africa. For a start, nine 2. PROVINCIAL ELECTIONS AND new provinces had to be demarcated for elec- REPRESENTATION toral and administrative purposes. In some The structure of formal electoral representation cases former homeland administrations had to in provincial legislatures is therefore a matter be integrated with the previous regional struc- of concern if South Africa is to succeed in giv- tures of the apartheid era and the new provin- ing effective voice to this emerging regional- cial legislatures had to be established from ism. The Constitution stipulates that a provin- scratch. cial legislature should consist of between 30 The boundaries and number of provinces and 80 members. The number of members, were confirmed in the final Constitution of which differs among provinces, is determined 1996. But even the selection of provincial capi- using a formula prescribed by national legisla- tals posed a challenge to the new government. tion. The 1998 Electoral Act provides for For example, in the new Eastern Cape awarding one seat for every 100 000 persons province, five cities laid claim to capital status whose ordinary place of residence is within that with the matter eventually being settled in province. The Independent Electoral Com- favour of Bisho, the former capital of Ciskei. mission (IEC) is charged with making this The fact that so many cities laid claim to the determination. Table 1 indicates the seat alloca- title speaks to the fact that the Eastern Cape tions to provinces for 1994 and 1999. administration was being forged out of diverse Each provincial legislature is elected in terms of proportional representation (PR) with an Table 1: Seat allocations to provincial legisla- executive comprised of a premier and a number tures: 1994 and 1999 of members who form an executive council. The premier is elected by the provincial legislature. From 1994 to 1999, national and provin- Provincial No. of No. of legislature seats – 1994 seats – 1999 cial government were structured in terms of a GNU. The GNU rules meant that consensual Eastern Cape 56 63 politics and PR were to play a role in the com- Free State 30 30 position of the executive and the distribution of Gauteng 86 73 cabinet portfolios. Under the rules for the KwaZulu-Natal 81 80 GNU, a party required at least 10% of the seats Mpumulanga 30 30 in the provincial legislature to be represented North-West 30 33 by a member in the executive council. Northern Cape 30 30 The 1994 elections resulted in the ANC gain- Northern Province 40 49 ing provincial power as the majority party in Western Cape 42 42 seven of the nine provinces.6 Only in KZN Total 425 430 (IFP) and the Western Cape (NP) do other

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Table 2: 1994 and 1999 Provincial election results7

Province Seats won in 1994 and 1999 provincial legislature elections8 Total seats

Eastern Cape 1994: ANC 48, NP 6, DP 1, PAC 1 56 1999: ANC 47, NNP 2 PAC 1, UDM 9 63 Eastern Transvaal 1994: ANC 25, NP 3, FF 2 30 Mpumulanga 1999: ANC 26, NNP 1, UDM 1, FF 1, DP 1 30 KwaZulu-Natal 1994: ANC 26, NP 9, IFP 41, DP 2, PAC 1, ACDP 1, MF 1 81 1999: ANC 32, NNP 3, IFP 34, DP 7, ACDP 1, MF 2, UDM 1 80 Northern Cape 1994: ANC 15, NP 12, FF 2, DP 1 30 1999: ANC 20, DP 1, NNP 8, FF 1 30 Northern Transvaal 1994: ANC 38, NP 1, FF 1 40 Northern Province 1999: ANC 44, DP 1, NNP 1, PAC 1, UDM 1, ACDP 1 49 North-West 1994: ANC 26, NP 3, FF 1 30 1999: ANC 27, UCDP 3, DP 1, NNP 1, FF 1 33 Orange Free State 1994: ANC 24, NP 4, FF 2 30 Free State 1999: ANC 25, NNP 2, DP 2, FF 1 30 PWV 1994: ANC 50, NP 21, IFP 3, FF 5, DP 5, PAC 1, ACDP 1 86 Gauteng 1999: ANC 50, DP, 13, NNP 3, IFP 3, ACDP 1, Federal Alliance 1, 73 UDM 1, FF 1 Western Cape 1994: ANC 14, NP 23, FF 1, DP 3, ACDP 1 42 1999: ANC 18, NNP 17, DP 5, ACDP 1, UDM 1 42 political parties hold greater power and the pre- Table 3 compares the distribution of total miership. The ANC and the NP were the only provincial seats by party for 1994 and 1999. two parties to win seats in every province. The The election results provide evidence for the Freedom Front (FF) won seats in seven importance of provincial elections: provinces and the Democratic Party (DP) won • Provincial elections provide an opportunity seats in five. Table 2 compares the provincial for political parties to gain greater representa- election results for 1994 and 1999, indicating tion than might be possible at national level – the number of seats attained by each party. the United Christian Democratic Party Participation in the 1999 provincial elections (UCDP) and the United Democratic Move- was marked in several ways: ment (UDM) built strength in regions. The • 26 parties contested the 1999 elections UCDP was eighth nationally, but came sec- • 15 parties contested the National Assembly ond in one province. The UDM was fifth and provincial assemblies nationally but second in two provinces. • 1 party contested the National Assembly only • 10 parties contested for provincial assembly Table 3: Distribution of total provincial seats seats only (each of these contested in one by party: 1994 and 1999 province only) Party 1994 1999 • 13 parties won seats in the National Assembly ANC 266 289 • 12 of those same parties won seats in provin- NP/NNP 82 38 cial assemblies IFP 44 37 • none of the parties contesting provincial FF 14 5 assemblies only won any seats DP 12 40 • women in provincial government: 27.6 % of PAC 3 2 Members of the Provincial Legislature ACDP 3 3 (MPLs) are women, slightly lower than the MF 1 2 29.7% of women in the National Assembly. FA Did not exist 1 There are 20 women of 99 Members of the UCDP Did not exist 3 UDM Did not exist 10 Executive Council (MECs), 20.2% of the Total seats 425 430 total.

39 Pottie

• Provincial races also show the relatively Table 4: Regional (“provincial to national”) equal strength of several parties at provincial allocations to National Assembly, 1994 and level. The DP, NNP and IFP have roughly 1999 the same number of total provincial seats, however, the IFP won seats in only two Province 1994 1999 provinces while the DP and NNP won seats in every province along with the ANC. Eastern Cape 28 27 • Regional representation varies and builds Free State 15 14 respect for diverse political identities, e.g.: Gauteng 43 46 – the ANC was first nationally, first in eight KwaZulu-Natal 40 38 provinces Mpumulanga 14 14 Northern Cape 4 4 – the DP was second nationally, second in Northern Province 20 20 three provinces, third in five and fourth in North West 15 17 one Western Cape 21 20 – the IFP was third nationally, first in one Total 200 200 province, but only fourth, eighth, ninth, tenth and eleventh in the other provinces The NCOP may legislate in areas falling – the NNP was fourth nationally, second in under the functional jurisdiction of provinces two provinces, third in four and fourth in (discussed below) and all national bills referred three. to it by the National Assembly, but it may not Provinces also play a role in the determination initiate money bills. Bills amending the of candidates for the National Assembly. As in Constitution must also be referred to the NCOP 1994, a total of 400 seats were contested in the and can only be passed with a supporting vote 1999 elections for the National Assembly. In of at least six provinces. the PR electoral system adopted in South There are 90 delegates in the NCOP. There is Africa these seats are filled from the party lists. a single delegation from each of the nine pro- The list system in South Africa is closed, and vinces and each delegation comprises 10 dele- party executives select names for the lists. The gates. The 10 delegates are: composition of the list for the National Assem- • four special delegates consisting of the pre- bly comprises two types of allocations: the first mier of the province or a member of the is a direct list (“national to national”) for 200 provincial legislature designated by the pre- seats in the National Assembly while the sec- mier and three other special delegates ond allocation of 200 seats is drawn from the • six permanent delegates drawn from the provinces. This “provincial to national” list is provincial legislature in proportion to the rep- officially known as the list for regional seats resentation of their respective political parties reserved for the National Assembly. The num- in that legislature. ber of regional seats allocated to each province Each delegation has a single vote and all ques- is determined on the basis of the voting populations before the NCOP are agreed when at least tion and representations by interested parties. five provinces vote in favour of the question.9 Table 4 indicates the seat allocations assigned The NCOP is presided over by a chairperson, to each province for its share of the regional elected for a term of five years from among the lists for the National Assembly. permanent delegates to the chamber. Prior to Provincial representation in the national gov- the 1999 elections the ANC had a two-thirds ernment also extends beyond the National majority of the total delegates to the NCOP (60 Assembly. The provinces also achieve repre- of the 90 seats). The IFP’s largely regional sentation in the National Council of Provinces powerbase in KZN was evident in the composi- (NCOP). Along with the National Assembly, tion of the NCOP, with the province compris- the NCOP is a component of Parliament. It rep- ing the entire basis of its representation in the resents the provinces to ensure that provincial chamber (5).10 By contrast, the FF, also with interests are taken into account in national gov- five members in the NCOP, drew its members ernment. The NCOP replaced the former from five different provinces.11 The NCOP is Senate when the 1996 Constitution was adopted therefore able to reflect not only the diversity of and came into operation on 4 February 1997. provincial parties, but does so as a reflection of

40 Pottie the different basis of regional party political place of the provinces in the overall form of the support (concentrated in the case of the IFP and state remained contentious. The extent of the dispersed for the FF). However, the block vot- powers and functions of the provinces was part ing procedure of the NCOP (based on one vote of the debate over the degree to which the per provincial delegation) consolidates the South African state would be federal or cen- provincial power of the ANC in the national tralised. In the end a model of cooperative gov- government since it holds a majority in six of ernment was adopted to promote coordinated the nine delegations. governance instead of allowing the provinces to The NCOP is rooted in the provinces by “compete with each other and the national gov- virtue of its powers, purpose and representation ernment for power and resources.”14 but it is also part of the National Assembly. It is Under the new Constitution, provincial gov- therefore designed as a bridge between national ernment has relatively few areas of exclusive power and provincial power. But provincial legislative competence. Provinces have execu- power and the ability of provincial legislatures tive authority only to the extent that they have to structure that power effectively have had a the necessary administrative capacity and rather mixed record since 1994. national government may, under some circumstances, take over functions that a provincial 3. PROVINCIAL POWERS government cannot properly perform. National On 10 May 1994, the central government as- government also bears a responsibility to sumed the powers of the four former provinces ensure that the provinces build that capacity. and the homelands. In effect, the new provinces The exclusive areas of provincial legislative did not have any power and would only receive competence are set out in Schedule 5 of the their powers as central government determined Constitution as follows: that the new provinces had established new ad- • Abattoirs ministrations capable of exercising that power. • Ambulance services Some premiers began to complain that they had • Archives other than national archives assumed offices without power.12 • Libraries other than national libraries In August 1994 an intergovernmental forum • Liquor licences was established to determine the distribution of • Museums other than national museums powers between national and provincial gov- • Provincial planning ernments. • Provincial cultural matters The restructuring and amalgamation of • Provincial recreation and sport former homeland administrations posed an • Provincial roads and traffic additional immediate challenge to effective • Veterinary services excluding regulation of provincial government. For example, the the profession.15 creation of the Eastern Cape province involved Provincial government also has oversight pow- the amalgamation of the former homelands of ers with respect to certain areas of local govern- Transkei and Ciskei with part of the former ment. With the adoption of the 1996 Constitu- Cape Province. As a result: tion, however, provincial government saw the “The legacy of the old Transkei and Ciskei removal of some powers that it had enjoyed to the new Eastern Cape government was under the Interim Constitution. For example, chaos. More than a dozen reports by various provincial government lost the power to deter- auditor-generals indicate that no reliable mine the remuneration of provincial premiers, accounts were kept from about 1987. So MECs and traditional chiefs. Further, Parlia- many records have been destroyed or lost ment was given the power to intervene in areas that it is now virtually impossible to find of exclusive provincial jurisdiction by passing out where the money went, to construct legislation which is necessary to: asset registers for inherited offices, or to • maintain national, economic unity or essen- hold anybody accountable for the mess.”13 tial national standards The nine provinces created in terms of the • establish minimum standards for service pro- Interim Constitution brought about a new sys- vision tem of government in South Africa. But in the • prevent unreasonable action being taken by a course of drafting the 1996 Constitution the province which is prejudicial to the interests

41 Pottie

of another province or the country as a owing to various demarcation disputes. In whole.16 KZN, the IFP was determined to ensure a role In practice, however, the lines of distinction for traditional leaders in the transitional region- between national and provincial areas of com- al councils that would represent residents in petence are not so clear cut since the Con- rural areas. Ultimately local elections did take stitution envisages shared or concurrent powers place in June 1996. The dispute, and the delay, and legislation in so many areas.17 These con- indicated that substantial provincial variations current powers include areas such as education, existed with respect to the acceptable form of housing, welfare, environment, health, tourism, government in the country. agriculture, trade, etc. Moreover, with respect to matters of concern outside the authority of 4. THE PROVINCIAL LEGISLATIVE RECORD provincial legislation, a provincial legislature The flow of legislation emanating from provin- may make recommendations to the National cial government has been slow. This is partly Assembly.18 In the event of jurisdictional dis- owing to the restricted areas of exclusive leg- putes between national and provincial legisla- islative competence. As a result, most of the tion, the Constitution also provides for conflict laws passed by provincial government have resolution. Where there is a dispute, the Con- been of a technical nature, designed to bring stitutional Court “must prefer any reasonable various provincial practices in line with nation- interpretation of the legislation that avoids a al legislation or the Constitution. Aside from conflict, over any alternative interpretation that legislation of a technical nature, provincial leg- results in conflict”.19 islatures have enacted laws that provide region- An important source of provincial power lies al institutions with an enabling framework for in the Constitutional provisions for provinces to national legislation. adopt their own provincial constitutions.20 The Development Facilitation Act (DFA) of However, only two provinces (the Western 1995 is a case in point. The DFA was designed Cape and KZN) have sought to exercise this to speed up the delivery of basic services by power. The KZN constitutional process has eliminating procedures and regulations – much endorsed a strong federalist interpretation of the of them inherited from the apartheid era, and role of provinces in South Africa. This agenda now encumbering government with excessive can be summarised with reference to the draft duplication. In order to respond to different constitutional text submitted by the IFP in needs in the provinces, the DFA provided for 1995. This draft called for the province to be regional development tribunals that would renamed the Kingdom of KZN and for the enable public participation in the selection of retention of a Zulu monarch without executive development priorities in the provinces. As part powers. In addition, the kingdom would have of this process, provinces were able to develop its own independent judiciary, constitutional their own parallel legislation. In KZN, where a court and militia. Clearly, the IFP strategy was political rivalry between the ANC and the IFP to expand the boundaries of provincial power. persists, efforts to draft provincial enabling leg- In September 1996 the Constitutional Court, islation for the DFA to be implemented never however, rejected the provincial constitutional took route. The result is that development text approved by the KZN legislature. Subse- efforts that KZN must continue to respond to quently the IFP dropped many of its demands are an often-bewildering array of regulations and later drafts accepted that a provincial con- that differ between urban and rural areas, and stitution had to conform to the national consti- from district to district within the province. tutional guidelines. Table 5 summarises the provincial legislative The exercise of provincial power by opposi- record for the period 1994-1997. tion parties in both the Western Cape and KZN As table 5 indicates, provincial legislatures also led to delays in the scheduling of local have passed relatively few pieces of legislation. government elections in those two provinces. In addition to their limited legislative output, Whereas the rest of the country voted in the provincial legislatures have met for a relatively first democratic local government elections in few number of days each year. The provincial November 1995, parts of the Western Cape and legislatures have not typically convened for all of KZN had to wait for the following year, extended sittings. For example, the Northern

42 Pottie

Table 5: Provincial acts/laws – 1994–1997 civil servants employed by the national government (76 513 persons). Province 1994 1995 1996 1997 In addition to the large absolute number of provincial civil servants, the distribution of Eastern Cape 5 12 3 9 civil servants across the provinces is also Free State 6 6 13 7 skewed. The Constitution delegates the same Gauteng 3 6 11 10 functions to every province and yet the ratio of KwaZulu-Natal 9 4 12 10 civil servants to population varies greatly from Mpumulanga 8 8 5 4 province to province.23 For example, in Northern Cape 8 6 5 7 Gauteng, there is a ratio of one civil servant to Northern Province 6 9 8 4 every 58 persons, whereas in the Eastern Cape, North West 24 16 4 11 the ratio is one for every 42 persons (the Western Cape 12 8 8 13 provincial average is 47). This might be inter- preted that Gauteng is using its civil servants Province legislature sat 23 days in 1994, 38 in more effectively than is the Eastern Cape. But 1995, 45 in 1996 and 42 in 1997. As these fig- if we exclude the health and education sectors ures indicate, there is an overall trend of length- of public employees, the ratio is quite different. ier legislative sittings. But to take another The ratio of “other” civil servants to provincial example, the KZN legislature only sat for 27 population in Gauteng becomes 142 (the days in 1996, passing 12 pieces of legislation. provincial average) and the Eastern Cape In response to this record, the ANC complained becomes 261. Given the other difficulties expe- that: “This is totally unacceptable. We cannot rienced in the Eastern Cape provincial adminis- get bills through the House because we spend tration, this ratio suggests that the civil service half our time correcting technical mistakes.”21 in the Eastern Cape is vastly overstretched. The All three counts (the brief length of the leg- implication for public sector restructuring is islative sessions, the limited amount of legisla- that depending on which ratio is considered tion passed and the type of legislation) indicate acceptable, one province or another would be the relatively narrow scope of provincial pow- affected by significant retrenchments, rationali- ers under the Constitution. Under a harsher sation of services, or additional national to light, these considerations may also indicate provincial financial transfers. underperformance on the part of provincial Since 1994, government at all levels in South government. But the limited legislative output Africa has been preoccupied with improving at provincial level is also due to the lack of government administration and the delivery of capacity at provincial level. This assessment services while keeping an eye on financial sus- cannot be based solely on the criteria above, tainability. In 1997, Paseka Ncholo, Director but it can be supported with reference to the General of Public Service and Administration administrative and financial management in the released a report on governance within the nine provinces. provinces.24 The report signalled that national government policy was often set without due 5. PROVINCIAL GOVERNANCE consideration to the organisational, financial The provinces employ some 800 000 of the and service delivery implications in the country’s 1.15 million public servants. As provinces. National government was further many as 400 000 of these may have been inher- criticised for insufficient provision of support ited from the former homeland administrations. in respect of capacity, clarity over management Moreover, provincial government holds several of key functions and adequate communications. labour-intensive functions such as health and Provinces shared a number of common prob- non-tertiary education, thereby contributing to lems. Among them were: political interference the high number of provincial civil servants.22 in administration, over centralisation of man- If one excludes these categories, the provinces agement, weak strategic planning, poor budget employ just over 230 000 people, or 20.13% of formulation and spending controls, insufficient the entire civil service. Even so, this figure is departmental organisation and inappropriate nearly three times the total number of non-uni- human resource distribution. This report found formed (excludes defence force and police) that three provinces – the Eastern Cape, KZN

43 Pottie and Northern Province – were on the verge of prior to the 1994 elections – that public service collapse. Perhaps not surprisingly, each of these was in a deplorable condition in some provin- provinces had inherited former homeland ces. The existence of the provinces had tended administrations. The report identified further to consolidate the bloated civil service of the problems in financial management, human former homelands and given the poor financial resource management, chronic staff shortages, control of some of those former areas it was not and the prevalence of fraud and theft. Planning surprising that the current systems were defec- was not coordinated and the salary bill was dis- tive.27 Of equal importance, however, was the torted by double payments and a high number PRC recommendation that central government of “supernumeraries” (those employees who no should re-visit the role and powers of provin- longer have a designated post but continue to cial government. This theme would assume draw a salary; most supernumeraries were left increased prominence as the 1999 elections over after the amalgamation of homeland approached. administrations). Poor communication and inef- fective and centralised management hampered 6. FINANCIAL SUSTAINABILITY effective policy implementation. The Interim Constitution of 1993 stipulated that The 1998 Presidential Review Commission provinces are entitled to an equitable share of (PRC) also directed its attention to the revenue collected nationally. There are two provinces. It did not intend to replicate the steps to this process: first, resources must be work of the Ncholo provincial audits, choosing divided between national and provincial gov- instead to evaluate five provinces: KZN, ernments (a vertical division), and second, the Gauteng, Northern Province, Eastern Cape and total provincial share must then be divided Western Cape. The PRC was mandated to among the nine provinces (a horizontal divi- review the structure of all levels of government sion). Transfers to provincial government may with an eye to improving government structure, be affected by changes in population, policies administration and service delivery. The PRC that affect provincial government’s ability to identified five principle issues from the raise its own revenue, and the changing distrib- provinces surveyed for the report: ution of responsibility for service delivery • Widespread confusion over the different roles among national, provincial and local govern- of political and administrative leadership. ment. For example, national legislation • Range of problems in human resource man- designed to address backlogs in infrastructure agement. and services may impose a greater or lesser • Overcentralised financial decision-making financial and administrative burden on some and poor management of funds. provinces than others. Meeting national policy • General lack of strategic planning. standards therefore imposes direct financial • Poor state of information technology.25 costs on the provinces. Further still, legislation The PRC therefore confirmed many of the find- passed during the period 1994–1999 with ings of the Ncholo audits. It found that the respect to housing delivery has added more Northern Province and the Eastern Cape had responsibility for local government, over which the most serious capacity problems and urged provincial government has political oversight. central government “to maintain constant vigi- The overall picture for provincial governments lance over these two provinces” and further: is therefore one of a moving playing field. “The National Government should therefore Some of these dimensions are sketched in the not hesitate, in certain dire circumstances, section that follows. to resume functions delegated to certain The Borrowing Powers of Provincial Govern- provinces or their departments, where those ment Act of 1996 regulates provincial spending provinces provide irrefutable evidence of power. The Budget Council (comprising the inability to carry on those functions.”26 Minister of Finance and the provincial MECs The PRC noted that it was a sad but unintended for Finance) decided that provinces would not consequence of the federal system of govern- borrow in the financial years 1997–1998 and ment in South Africa – as well as the sunset 1998–1999. However, a number of provinces clauses regarding the entrenchment of public were forced to use overdrafts at commercial sector employees agreed to in the negotiations banks to cover basic salary and administration

44 Pottie costs during this period. In 1997, both Finance raising powers and are dependent on central Minister Trevor Manuel and Constitutional government for their fiscal status. At present, Affairs Minister Valli Moosa warned provinces provincial own revenue amounts to only 5% of which overspent that political heads and direc- their total budget and is collected primarily tor-generals would be held responsible.28 from user charges such as motor vehicle licens- Projected overruns for the 1997–1998 finan- ing and hospital fees. The remainder of provincial year were R8 billion – approximately 10% cial revenue comes from central government. of the budgeted provincial allocation of R80.8 Central government has thus far rejected pro- billion.29 The Eastern Cape’s overspending was posals to enable provinces to collect a sur- the highest, projected at R2.7 billion.30 In fact, charge on personal income tax. Given the ques- provincial budget deficits were stabilised some- tions raised about provincial administrative what in 1997–1998, running a 2.3% deficit and capacity, central government is wary of sharing by 1998–1999, two of the provinces in the tax powers with the provinces. worst financial shape, the Eastern Cape and In the medium term, provinces must improve KZN – ran in-year surpluses.31 In his 1999 bud- their expenditure controls while cutting costs get speech, Finance Minister Trevor Manuel before the national government does it for praised the provinces for their efforts to control them. But provinces face a number of chal- overexpenditures.32 lenges in this regard: Nevertheless, the overall state of provincial • Provinces do not control salary levels; these finances remains precarious. Some have are negotiated at national level. blamed provincial overspending on the wage • Provinces have very limited retrenchment bill of provincial public servants and the inabil- powers. ity, or unwillingness, of provincial government • National policy decisions, such as the exten- to retrench public sector workers. The 1998 sion of free health care to pregnant women wage bill, as a percentage of provincial bud- and children under the age of six, eat into gets, ranged from a low of 55% in the Western provincial revenue by reducing hospital fees Cape to a high of 65.4% in the Northern while increasing service costs. Province.33 Labour relations play a role in this • The national Department of Finance began to dynamic with tabled wage demands ranging transfer money on a weekly, not monthly from 9.5% to 15.0%. Increased spending on basis. As a result provinces can no longer wages leaves provinces no choice but to cut earn the interest on unspent money through capital expenditure; a recipe that only leads to a the residual weeks of the month.36 further downward spiral in the poorer • Costs in the big three – services, education, provinces.34 health and welfare – are difficult to drive Others have cited the responsibility of downwards without provincial government provincial governments to extend services to bearing the political costs of an unhappy those who had previously been excluded from electorate. access to public services. Furthermore, the cost Against this background provinces are likely to of integrating former homeland bureaucrats face ever-tightening fiscal options. (approximately 400 000 employees) has to be taken into account. To alleviate the financial 7. POLITICAL INTRIGUE AND PROVINCIAL burden of past practices by these bureaucrats, PERFORMANCE national government absorbed R1 billion in Lodge argues that federal politics in South cash debts run up by the former homelands Africa since 1994 has vastly increased the com- prior to 1994.35 These debts were largely in the plexity for the ANC running its own inner form of overdrafts, with loans to the former organisational life.37 Between 1994 and 1998 homelands having been absorbed by national there were three changes of leadership (Free government in 1996. Finally, attention has also State, Gauteng and Eastern Cape) in the seven been focused on improving the budget skills ANC-led provinces and two of them (Free State and spending practices in the provinces to and Gauteng) were highly contested. The ANC ensure that provincial administrations draft has also faced considerable internal dissent in realistic and sustainable budgets. Mpumulanga were the premier and members of Provinces have highly restricted revenue- his executive committee have been investigated

45 Pottie for fraud. Part of the problem lies with the need variations in perceptions of the way in which for the ANC to expand rapidly to fill all of the the country is being run.40 Only in North West posts it achieved after the 1994 elections. In (60%) and Free State (56%) were a majority of some cases political “outsiders” were called respondents satisfied with the way South Africa upon, “deployed” in the language of the ANC, is being run. In the rest of the provinces, the to fill the new positions. In other instances, majority were dissatisfied. Nationwide, 49% rivalries developed when different individuals were dissatisfied with the way the country is held the posts of provincial party leader and being run, and slightly more than a third (37%) premier. And at a more general level, ANC were satisfied. This figure marks a substantial members were still learning the ropes in terms decline from the 64% who claimed to be satis- of running a government. fied with the way the country was being run in The ANC was not alone in changing leader- 1994. ship in the provinces. KZN has had three pre- On the whole, one-third of respondents miers since 1994. In turn, Frank Mdlalose, Ben (32%) are satisfied with the way in which their Ngubane, and most recently, Lionel Mtshali province is run. With regard to provincial gov- have rotated into the premier’s office as a result ernment, for every five satisfied respondents of internal party shake-ups within the IFP. In there are nine who are dissatisfied. In the the Western Cape, Gerald Morkel of the NP provinces governed by opposition parties – the replaced Hernus Kriel in April 1998 following Western Cape and KZN – respondents are even Kriel’s resignation. more dissatisfied than the average South Changes in provincial leadership did not stop African resident with the way in which both the in the run-up to the 1999 elections. In an country and the province are being run. How- attempt to avoid these intra-party rivalries and ever, the ANC-run provinces of the Northern challenges the ANC executive adopted the rec- Cape and Northern Province joined them in this ommendation that in future, premiers will be category. The average satisfaction rates with appointed by national structures. As a result of both national and provincial government were this policy, the ANC removed three of its cur- higher in the Free State, Mpumulanga, Gauteng rent premiers (Free State, Gauteng and Mpu- and North West. mulanga) from the top spot when it selected candidates for the provincial party lists. 8. PROVINCIAL GOVERNMENT PROSPECTS Explaining the ANC national executive’s The 1999 elections reflected the continuing tur- decision, ANC Secretary-General Kgalema bulence of provincial government. The Western Mothlanthe dismissed the interpretation that the Cape and KZN remained hotly contested national leadership was disciplining provincial provinces. Further, whereas the ANC has leaders. Instead, he said that ANC President retained power in seven of the nine provinces Thabo Mbeki was merely exercising his prerog- as this chapter has argued, the future status of ative to appoint candidates for the top spot of provincial leadership and provincial administra- the provincial list: “It’s only fair, because the tion cannot be taken for granted. Provincial ANC is more concerned with the ability to run government in South Africa will continue to the provincial administration than the populari- face challenges on four main fronts: ty of an individual. The same prerogative goes • The ongoing federalism debate is unlikely to to the premier, who has the power to appoint subside as many opposition parties press for MECs.”38 For some, this move reflects yet greater power at provincial level. The emer- another indication that the ANC national execu- gence of two new parties with substantial tive is set to trim the power of the provinces.39 provincial levels of electoral support (the While the future of the provinces is under UDM in the Eastern Cape and the UCDP in scrutiny from the party elite, it has also the North West) indicate that ANC hegemo- received mixed reviews from below. Public ny cannot be taken for granted. Further, perceptions of provincial government provide former homeland leaders lead both of these yet another perspective with which to evaluate parties, and they may therefore present a pair the track record and viability of this tier of gov- of wildcards at provincial level. ernment. A Human Sciences Research Council • The ANC itself occupies an uneasy seat of (HSRC) survey indicated substantial provincial national–provincial relations within its lead-

46 Pottie

ership structures, and between leaders and of Durban has more responsibilities and supporters. In the immediate aftermath of the demands than the premier of the Free State: elections there is a spirit of triumph, but as the Durban metropolitan budget is even big- the experience since 1994 has indicated, lead- ger than Namibia’s”.42 Motlanthe acknowl- ership challenges, regional divisions, and edged that many current provincial leaders internal debate are likely to remain features would surely resist any perceived demotion of ANC internal relations. in power. • The ongoing fiscal crisis at provincial level But is the size of the budget really the measure and the role of national payments to provin- of the importance of a tier of government? cial government are both likely to keep Friedman argues that provinces were meant to provincial financial administrators in the be vehicles for democracy, not management of news. The South African economy remains a service provision.43 tense balancing act and government revenue Friedman reminds us that provinces provide arrangements are themselves very much tied voters and parties a stake in the electoral sys- to a policy of fiscal prudence. The pressure tem if they cannot win power at national level. on provincial government to get fiscal mat- That way they are not relegated merely to criti- ters under control is therefore likely to con- cising, but can try to put some of their ideas tinue. into practise in their region. • While the overall constitutional status of provincial government is highly unlikely to CONCLUSION change, there will most certainly be discus- For these and other reasons discussed in this sion about the relative powers and status of paper, provincial government will therefore provincial government within the context of remain an important centre of attention for cooperative governance. In May 1999, ANC reform and debate. While the debate between Secretary-General Kgalema Motlanthe those who advocate a unitary and centrist con- revealed that discussion on the future status ception of the state versus those who prefer a of the provinces could start soon after the strongly federal South Africa has been settled June elections. He stated that the view within in favour of the compromise of cooperative the ANC was that cities such as Durban, governance, provincial government’s relative Cape Town and Johannesburg were of status is still open for discussion. This fluidity “greater importance than some provincial will also persist in terms of provincial govern- governments because they have bigger ment’s performance. Some provinces will responsibilities”.41 Motlanthe compared the shine, while others will continue to struggle to city of Durban to the Free State province and achieve their policy goals. The one certainty is concluded that “it is obvious that the mayor that the debate will remain vigorous.

ENDNOTES 1) This paper is an adaptation of a paper pub- (Oxford: James Currey, Cape Town: David lished in Andrew Reynolds, ed. Election 99 Philip, New York: St. Martin’s, 2000). South Africa: From Mandela to Mbeki 2) Tom Lodge, South African Politics Since

47 Pottie

1994 (Cape Town and Johannesburg: 20) Constitution, Sec 104 (1a). David Philip, 1999), p.13. 21) The Daily News, 4 December 1996. 3) T.R.H. Davenport, The Transfer of Power 22) J.P. Landman. “How big and how costly is in South Africa (Cape Town: David Philip, the civil service?” Centre for Policy 1998), p.64. Studies, Policy Brief 4, July 1998. p.3. 4) G.E. Devenish, A Commentary on the 23) Ibid. p.4. South African Constitution (Durban: 24) Department of Public Service and Butterworths, 1998), p.169. Administration, The Provincial Review 5) Lodge, p. 25. Report, August 1997. 6) For a detailed analysis of the 1994 election 25) Developing a Culture of Good Gover- results in South Africa see Andrew nance: Report of the Presidential Review Reynolds, ed. Election ’94: The Cam- Commission on the Reform and Trans- paigns, Results and Future Prospects formation of the Public Service in South (Cape Town: David Philip, 1994). Africa, 27 February 1998, Sec 2.6.4. 7) For detailed tables of 1999 election results 26) Ibid. see: Electoral Institute of Southern Africa, 27) Ibid. National and Provincial Election Results: 28) Daily Dispatch, 26 August 1997. South African Elections, June 1999 29) South African Institute of Race Relations, (Johannesburg: EISA, 1999). Survey 1997/98 (Johannesburg: SAIRR, 8) ANC – African National Congress; 1998), p. 485. NP – National Party; NNP – New National 30) Early in 1998, the MECs for Education and Party; IFP – Inkatha Freedom Party; Welfare were removed from their posts in FF – Freedom Front; DP – Democratic the Eastern Cape owing to the inability of Party; PAC – Pan-Africanist Congress; the provincial government to pay pensions. ACDP – African Christian Democratic 31) Business Day, 12 March 1998. Party; MF – Minority Front; UDM – 32) Business Day, 18 February 1999. United Democratic Movement; UCDP – 33) The Sunday Times, 22 March 1998. United Christian Democratic Party. 34) Finance Minister Trevor Manuel has stated 9) However, for ordinary bills not affecting that public sector personnel costs had the provinces each delegate has one vote. increased 12.2% a year between 1995 and 10) The IFP did win seats in Gauteng, but it 1998. In 1999, personnel costs would gained an insufficient percentage of the account for about 51% of non-interest state vote to gain representation in the NCOP spending. Minister of Finance, Budget delegation from Gauteng. Speech, 17 February 1999. 11) The FF does have members in seven pro- 35) Business Day, 9 April 1998. vincial legislatures, but gained an insuffi- 36) Private service providers who rely on gov- cient percentage of the vote in two of those ernment contracts are also caught in this provinces to gain representation in the spiral when government is slow to pay fees NCOP delegation from those provinces. or cuts back on its demand for services. 12) South African Institute of Race Relations, The Sunday Times, 2 May 1999. 1994/95 Race Relations Survey (Johannes- 37) Lodge, p. 16. burg: SAIRR, 1995), p. 351. 38) The Sunday Independent, 16 May 1999. 13) The Daily Dispatch, 26 August 1997. 39) The Sunday Times, 25 April 1999. 14) Mayibuye, May 1995, p. 9. 40) Human Sciences Research Council, Media 15) Constitution of South Africa, 1996, Release, 11 March 1999. Schedule 5, Part A. 41) The Sunday Independent, 16 May 1999. 16) Constitution, Sec 44(2) read with Sec 76(1). 42) Ibid. 17) See Schedule 4, Constitution. 43) Stephen Friedman, “Why we need provin- 18) Constitution, Sec 104 (5). cial governments,” Business Day, 9 March 19) Constitution, Sec 150. 1999.

48 Igoli 2002: Towards a Megacity Government

Sam Kongwa

INTRODUCTION 3. UTILITIES, AGENCIES AND CORPORATISED There have been concerns regarding the ratio- ENTITIES nale behind the plan of Igoli 2002. One source Perhaps of greater significance is the establish- of acrimony is between the service providers of ment of utilities, agencies and corporatised this new Johannesburg Unicity Metropolitan entities (UACs). These are essentially Council (JUMC), who have embarked on the autonomous business enterprises which are to plan, and the average citizen who is supposed operate under the Companies Act. Their major to benefit from the successful implementation responsibility will be developing business of the unicity concept. plans, which will focus on: • service delivery 1. UNICITY STRUCTURE AND AIMS • customer care improvements The new JUMC – comprising Midrand, • environmental protection Modderfontein, the Northern, Eastern, Western • efficiency and Southern Metropolitan local councils – is • profitability destined to introduce major changes in the • safety standards administrative, operational and financial struc- • social and economic development tures of the Greater Johannesburg Metropolitan • innovative income-generating ideas. Area and its environs. Igoli 2002 management The city will, however, continue to be associat- envisages that such changes: ed with the enterprises by: determining their “will address the problem of fragmentation areas of operation; granting licences; acting as in political governance and within the coun- shareholders; drawing dividends from utilities; cil’s administrative structures. Greater providing subsidies for agencies; determining Johannesburg, including Midrand, will tariffs and capital expenditure; human re- improve the city’s leading position within sources development; and corporate planning the national economy and its ability to and quality control.2 extend service provision to residents, ratepayers and business.”1 4. THE FINANCIAL PLAN The financial plan “focuses on achieving finan- 2. CUSTOMER SERVICE cial sustainability by reducing the operating Of interest are the planned central distribution deficit, improving payment levels, reducing service functions: metropolitan police services, wastage, improving efficiency and increasing heritage services, emergency management ser- capital expenditure to sustainable levels”.3 vices and planning services. These decentralised regional administrations will provide 5. FULFILLING A MANDATE local communities with health care, social ser- Igoli 2002 is premised on section 152 of the vices, housing, libraries and sport and recre- Constitution, which mandates local govern- ation facilities. ment to:

49 Kongwa

• provide democratic and accountable govern- • In 1975, there were only five megacities in ment for local communities the world with ten million plus people. In • ensure the provision of services to communi- 1995, this had increased to 15 and it is esti- ties in a sustainable manner mated that by 2015 the number will increase • promote social and economic development to 26. • promote a safe and healthy environment • encourage the involvement of communities 8. REASONS FOR THE MEGACITY TREND and community organisations in matters of Urban dwellers have been attracted and encour- local government. aged by the globalisation of commerce, trade and industry. This globalisation process takes 6. OVERALL OBJECTIVES place predominantly in the urban areas. More The overall objectives of Igoli 2002 are to people therefore flock to cities and towns for: transform the Greater Johannesburg region by opportunities; services created in the world enhancing service delivery, promoting accessi- wide web (www) process; recreation; education bility, encouraging and facilitating community and development skills; the emotional value participation and promoting political involve- created by the bright lights of the city’s slogan ment and policy making. Ultimately, it is hoped and as centres for international communication. that Johannesburg will be an efficient city – one In addition, the increasing mechanisation of which will be pleasurable to live in and pos- the main employment rural sector – agriculture sessing an enabling environment to attract – has reduced employment opportunities in this investors. sector, and therefore forces people to migrate to In order to ensure that Igoli 2002 objectives cities. As globalisation of the world economy are consolidated and go beyond the short- and increases, there are likely to be more people medium-term, Igoli 2010 – a long-term per- leaving rural areas and heading for the spective – has already been presented to gov- “promised land” of the megacity where often ernment, business, labour and the community. they will encounter unemployment, homelessness, crime, worse poverty and even less water 7. HUMANKIND IS BECOMING PREDOMINANTLY and good sanitation. URBAN The move by Greater Johannesburg towards a 9. IMPLICATIONS FOR DEMOCRACY megacity government reflects a global trend, Our concern with this trend as political scien- and mankind’s inability to control the forces tists is not so much about the socio-economic dictating this trend: consequences, but about the political implica- • For the first time in human history there are tions; about decentralisation and its impact on more people living in urban areas than in the democracy, and about the future of provincial countryside, and this proportion of urban government in South Africa and worldwide. dwellers is increasing at a much faster rate Problems caused by this inexorable global than ever expected. trend towards the megacity concept – and • The world urban population increased from therefore the danger that Igoli 2002 poses – are 29% in 1950, to 47% in 1998 and is projected many. These include: to reach 55% in 2015. • People’s loss of participation in the political • In Europe and North America, it is estimated process. that four out of five people are urban- • Increasing amalgamation of cities, leading to dwellers.4 a megacity, is an affront on local political • The developing world is fast following this autonomy. trend. In 1950 the top five world’s most pop- • The activities of the envisaged Greater ulous cities were New York, Tokyo, London, Johannesburg Metropolitan area, for exam- Paris and Moscow. Today, London, Paris and ple, are so enormous and of such vital impor- Moscow have been succeeded by Mexico tance to the national economy, that central City, São Paulo and Mumbai (Bombay). It is government is increasingly involved in their projected that by 2015, the top five will be planning, operations and funding. Lagos, Shanghai, Mumbai, Jakarta and The exercise becomes a central government Tokyo. show. Already the Department of Finance has

50 Kongwa budgeted for a R550 million grant to kick-start CONCLUSION the Igoli 2002 process. Central government Drawing from international experience, we find involvement tends to debilitate local democra- that even within original decentralised provin- cy. cial governments, amalgamation produced very Lessons from other countries which have powerful and often arrogant executive mayors, gone through the process that Igoli 2002 pro- such as New York City’s ex-Mayor Giuliani. It poses, confirm that local participation in the is interesting that Igoli 2002 does not even process is often the first casualty. This fact was mention this aspect. confirmed in a recent report published after the The argument of the advocates of amalgama- amalgamation of several small Canadian cities tion is the same: amalgamation will result in and towns: considerable cost-savings as a result of “The move towards government efficiency economies of scale, and less duplication of ser- can hamper the public’s ability to partici- vices. But these savings – which no amalgama- pate in the political process. What is given tion has proved – are often not passed on to the up is immediate participation. People will ordinary people; they usually go into the pock- feel less access to their government.”5 ets of new bureaucrats – of the entrepreneurs of The fusion of towns, municipalities and cities the corporatised utilities and services. led to a reduction in the number of local politi- Political education is difficult to promote in a cians, and thus less representation. megacity because of its sheer size. Local issues It appears that this loss is acknowledged by disappear from the political agenda. The only everybody, but those in favour of amalgama- relevant issues are those concerning national tion express a cynical defence of this assault on political parties because the stakes are now too local democracy by saying that the loss of par- high and the central politicians are reluctant to ticipation in local democracy is a price worth leave the stage of the Greater Johannesburg paying. A Canadian professor argues, for exam- unicity to the local community or to indepen- ple, that “the multiplicity of governments and dents. Invariably, the same party ruling at the municipalities is an impediment to growth”. He centre rules in the megacity, leading to the dis- goes on to point out that economic growth is appearance of political accountability. hindered when potential investors are forced to To sum up: the concept of Igoli 2002 should visit several municipalities, in one region, to be “killed” because it does not advance democ- obtain services and information. racy.

ENDNOTES 1) Igoli News, July 2000. p. 2. 4) Fred Pearce, Metropolitan Monsters, 2) Igoli 2002: Making Greater Johannesburg Geographical Magazine, February 2000 Work, Greater Johannesburg Metropolitan vol. 72, no. 2, discusses this trend, the char- Council, July 2000, provides a detailed acteristics of megacities and the economic plan. impact. 3) Ibid., p. 8. 5) Ibid. discusses this point.

51 Public Participation in Provincial Legislative Processes in South Africa

Gregory Houston

INTRODUCTION Pearl, 1961; Baker, 1973; Brody, 1978); It is widely accepted among scholars that pub- alienation from the political system5 (Brody lic participation in political processes is a and Page, 1973; Olsen, 1969); etc. virtue in its own right, and a sine qua non of a However, the overwhelming majority of stud- democracy (Dowse and Hughes, 1986:266). A ies on political participation focus on election healthy democracy is generally seen as one in data. Thus, voter turnout is used to determine which the citizens participate regularly in for- levels/degree of participation. The social vari- mal political activities,1 despite the lack of ables influencing participation are determined agreement among scholars about the required by examining the various social characteristics nature and degree of participation.2 of voters, and attitudinal reasons for non-par- There is a wide variety of approaches to the ticipation are determined by focusing on non- study of public participation in political activi- voters. ties. Three of these have particular relevance to The introduction of a new democracy in this paper: South Africa provides a range of possibilities • The first looks at levels/degree of participa- to extend the study of political participation tion in political activities, and focuses on beyond the focus on election data for two rea- electoral turnout (Rose, 1980; Crewe, 1981; sons, both arising from the introduction of Borg, 1995); involvement in campaign activ- forms of participatory and direct democracy.6 ity (Kenny, 1993); involvement in interest Firstly, the new democracy has entrenched a groups (Le Roy, 1995); active membership number of processes and established a variety of a political party, etc. of institutions for citizen participation at all • The second looks at the social variables that levels of the political structure. These include influence individual and group participation mechanisms for public participation, for exam- in political activities, and includes studies of ple, through the Integrated Development socio-economic status (Tingsten, 1937:155); Planning (IDP) processes at the local level, education (Linder, 1994: 95-6; Powell, 1986: petitions and public hearings in the legislative 27-8; Seligson et. al., 1995:166-71; Muller et. process at provincial and national level, Green al., 1987; Lijphart, 1997:2-3), environment3 and White Paper processes of provincial and (Kenny, 1993); race (Olsen, 1970); ethnicity; national government departments, etc. In addi- gender; personality (Campbell et. al, 1960; tion, a number of consultative forums have Dowse and Hughes, 1986:279ff), etc. been introduced since 1994 to engage civil • The third approach examines attitudinal rea- society actively in the legislative, policy-mak- sons for non-participation, and includes stud- ing and planning processes of government at ies of apathy and lack of interest (Campbell, local, provincial and national levels. 1962; Milbrath, 1972; Verba, Nie and Kim, Secondly, there is a statutory (including in 1971); cynicism about political influence some cases, a constitutional) obligation for through participation4 (Agger, Goldstein and institutions at all levels of the political structure

53 Houston to facilitate public participation in their example, examine the influence of various processes. Local authorities, for example, are social factors such as education, socio-econom- legally obliged to facilitate public participation ic status, ethnicity, age, environment, and gen- in their IDP processes, while provincial and der on levels/degree of public participation in national legislatures have a similar constitution- democratic governance. Attitudinal studies al obligation. Democratic governance in South could examine non-participation by focusing on Africa therefore goes beyond the establishment apathy, lack of political efficacy, etc. They of processes and structures for public participa- could also focus on a range of participatory tion to include the requirement that institutions processes, such as the IDP processes of local of governance actively engage with civil soci- government structures, participation in the poli- ety in the process of carrying out their activi- cy-making processes of national government ties. The result has been the establishment of a departments, etc. number of processes and structures to facilitate public participation by civil society, both as 1. STATUTORY AND OTHER MEASURES FOR individuals and as members of collectivities, in PUBLIC PARTICIPATION the legislative, policy-making and planning It is necessary to begin by establishing the processes of organs of governance. importance of public participation in the leg- This paper examines public participation in islative processes of a democracy through an provincial legislative processes in South Africa, analysis of the role of its legislative structures. which are defined as voluntary activities by The South African Constitution (Act 108 of which members of the public, directly or indi- 1996) sets out two broad powers for the nation- rectly, share in the legislative activities of al and provincial legislatures: legislation and provincial legislatures.7 The paper begins with oversight. Section 114 of the Constitution reads an examination of the statutory and other provi- as follows: sions for public participation in legislative (1) “In exercising its legislative power, a processes, and the steps taken by various provincial legislature may – legislatures to educate the population about par- a. consider, pass, amend or reject any Bill ticipation processes as well as to facilitate pub- before the legislature; and lic participation. This is followed by an analysis b. initiate or prepare legislation, except of levels of public participation in various money bills. processes, knowledge about the legislature and (2) A provincial legislature must provide for legislative processes, intention to participate in mechanisms – various processes, and perceptions of ability to (a) to ensure that all provincial executive influence government decisions. organs of state in the province are At present no other study exists which exam- accountable to it; and ines public participation in the legislative (b) to maintain oversight of – processes by focusing on levels/degree of polit- (i) the exercise of provincial executive ical participation in South Africa. However, authority in the province, including the this is a preliminary study, and focuses on the implementation of legislation; and regional and racial dimensions of public partici- (ii) any provincial organ of state.” pation in legislative processes. The study there- Sections 55 and 68 of the Constitution make the fore tries not to exhaust the range of social and same provisions for the National Assembly and attitudinal factors that influence individual par- National Council of Provinces (NCOP), respec- ticipation in democratic governance. The focus tively. is on knowledge and understanding of political First, legislatures are charged with consider- processes and institutions, intention to partici- ing, passing, amending or rejecting any bill pate and perceptions of the ability to influence placed before them by the executive, and with government decisions as factors underlying lev- initiating or preparing legislation. They are thus els/degree of citizen participation. The exis- meant to be deliberative bodies, and not simply tence of participatory democratic structures and structures that serve as “rubber stamps” for the processes present a range of possibilities for the executive. In dealing with legislation initiated study of public participation in democratic gov- by the executive, legislatures provide the ernance in South Africa. Such studies may, for opportunity for elected representatives to scru-

54 Houston tinise draft legislation for their practicality, rel- The South African Constitution makes explicit evance, comprehensiveness, clarity, anticipated this responsibility of the provincial executive in impact, constitutionality, etc., and to introduce Section 133. other views – such as those of the public and (1) “The members of the executive council the opposition – in the legislative process (refer of a province are responsible for the func- to Proctor, 1999:12). tions of the executive assigned to them by Legislatures can also initiate legislation in the premier. areas where the executive has failed, or is (2) Members of the executive council of a reluctant, to take the initiative. This can come province are accountable, collectively and from two sources: the standing committees or individually, to the legislature for the exer- private members’ bills. Provincial legislatures cise of their powers and the performance of also have the capacity to take legislation into their functions. the NCOP, which is also tasked with initiating (3) Members of the executive council of a legislation. Thus, through their representation province must – in the second chamber of the National Parlia- (a) act in accordance with the Constitu- ment, members of provincial legislatures can tion and, if a provincial constitution has initiate legislation in the national legislature been passed for the province, also that that has broader application to all provinces. constitution; and Second, legislatures are charged with the (b) provide the legislature with full and responsibility for due diligence and oversight. regular reports concerning matters under In this respect, the legislature is responsible for their control” monitoring “the administration and effective- (cited in Senay and Besdziek, 1999:11). ness of the programmes that have been enacted Ian Sinclair (1982:70, cited in Maloka) into law” (School of Government UWC, summed up the oversight work of legislatures 1998:2, cited in Senay and Besdziek, 1999:4). as follows: Senay and Besdziek (1999:6-7) point out that, “… the main opportunities or procedures among others, oversight must be exercised by for the parliament to scrutinise and criticise the provincial legislature over: the government are through the debate on • the work and activities of the executive coun- the address in reply; the budget process; cil, as well as of the provincial public admin- debates on particular bills … private istration and other organs of state members’ notices of motion and private • the policies drafted by the executive council, members’ bills; debates on matters of public the administration and other organs of state importance and censure of a minister, mem- • the implementation of policies by the execu- ber or government. Along with these proce- tive, the administration and other organs of dures are the debates on government state- state ments, petitions, and, of course, Question • the legislation drafted by the executive and Time.” administration The legislative and oversight tasks of legisla- • the impact of administrative action on tures are carried out in plenary sessions and in provincial residents. standing committees. Parliamentary committees In this task, the legislature is charged with have emerged as the most prominent institu- maintaining oversight over the executive and its tions for holding the executive accountable and agencies, the exercise of their power and for conducting the bulk of the legislature’s authority, and the implementation of legislation other work (refer to Proctor, 1999:20). Standing (refer to Proctor, 1999:20). The oversight task committees have the power to initiate policy of the legislature is, of course, linked to the and legislation as well as to exercise oversight executive’s responsibility to account for its over the executive and administration (Senay functions and conduct: and Besdziek, 1999:16). The latter arises from “(I)t must respond to concerns and criti- the power they have to summon members of cisms raised in parliament about its actions the executive council and departmental officials because members of parliament are democ- to answer questions and to undertake investiga- ratically elected representatives of the peo- tions into departmental activities. Standing ple” (Senay and Besdziek, 1999:10). committees also provide an opportunity for the

55 Houston legislature to hear interest groups and to government policies, and thereby ensures involve the public in the policy and legislative democratic stability. process (Kotzé 1997:18, cited in Senay and The most important mechanisms for public Besdziek, 1999:16). involvement in the legislative processes are: Public input is essential in a legislature’s leg- lobbying by organised groups, the raising of islative and oversight responsibilities for a vari- issues by constituents at parliamentary con- ety of reasons. First, members of the provincial stituency offices,8 petitions and public hearings. legislature, as the representatives of the elec- • Lobbying is used by organised groups in civil torate of the province, are charged with accept- society to present well-reasoned arguments to ing policies and laws arising from the execu- targeted decision makers.9 It may include tive, as well as making or initiating policies and detailed written representations outlining a laws that are consistent with the interests of the group’s views on a particular issue. Influen- population. This charge places a responsibility tial decision makers may also be approached on the legislature to obtain as much public personally. Lobbying is of particular rele- input on proposed legislation as possible. vance to organisations of civil society such as Public input in the legislative process also trade unions, business associations, voluntary allows a diversity of viewpoints to be aired and mutual benefit associations, and advoca- (Hilliard and Kemp, 1999:46), thus allowing cy and lobbying groups. A lobbying cam- the registration of popular support or opposition paign, if it is strong enough, can give rise to to proposed legislation. changes in proposed legislation, and can Second, the oversight responsibility of a force society to confront certain issues by provincial legislature requires input from the focusing attention on them.10 provincial population on issues of governance • Members of the public can raise issues at the in order to enable the legislature to hold the constituency offices of their elected represen- executive accountable. Public input provides an tatives, who then raise these issues in the leg- understanding of needs and the impact of poli- islature on their behalf. Thus, parliamentary cy and legislation, and promotes the develop- constituency offices can contribute to the leg- ment of priorities. It is through interaction with islature’s accountability and oversight tasks the public that the legislature can know what by serving as a barometer of community the electorate expects from the government and needs, and helping to determine priorities whether the implementation of policy and legis- (refer to Proctor, 1999:23). Furthermore, lation is inadequate or not, and thereby promote such offices provide a direct link with mem- the development of priorities for the executive bers of the legislature, and could thereby authority. reduce delays in responding to citizens’ prob- Furthermore, as Hilliard and Kemp (1999: lems (refer to Proctor, 1999:9). 43) put it, “(t)he citizen … has a surveillance • Petitions allow individuals or groups to raise role to play to ensure that the public functionar- issues in a formal way without having to go ies comply with the mandate that was granted through a particular member of the legisla- to them ... .” ture. They are useful mechanisms for unor- Public accountability is made effective ganised sectors of society to come together to through the public’s input in areas where public raise particular issues for consideration by functionaries fail to comply with the mandate the legislative authority. to provide good, effective government. Ulti- • Public hearings are normally convened by mately, good governance is best served by standing committees and afford the public the these consequences of public interaction with opportunity to make a written and/or oral the legislative authority. submission on any matter for which a public Most important, however, public participa- hearing has been convened. Here, both indi- tion in the legislative process and the account- viduals and groups have the opportunity to ability and oversight tasks of legislatures is table a written comment or address the stand- essential for long term democratic stability ing committee on the relevant issue. (refer to Khululekani Institute For Democracy, All legislative bodies at national and provincial 1999:1). Public participation promotes legiti- levels are required to facilitate public involve- macy and public support for legislation and ment in their legislative and other processes.

56 Houston

Sections 59 and 72 of the South African – in its efforts to canvass views from specific Constitution charge the National Assembly and sectors of society regarding issues of particular the Council of Provinces respectively with importance to them (Mbete-Kgositsile, 1999:6). responsibility for facilitating public participa- Its public consultancy programmes are supple- tion in the national legislative process. For mented by various programmes aimed at edu- example, Section 59 stipulates that: cating the public about participation processes, (1) “The National Assembly must – and include the National Youth Parliament (a) facilitate public involvement in the (NYP), which is a countrywide “edutainment” legislative and other processes of the pilot project with each province represented by Assembly and its committees; and about 15 schools at the provincial youth parlia- (b) conduct its business in an open man- ments; community meetings and workshops ner, and hold its sittings, and those of its conducted at parliamentary constituency committees, in public, but reasonable offices; and briefing sessions during which measures may be taken – members of parliament address visitors to par- (i) to regulate public access, including liament on any relevant legislative topic (Khu- access to the media, to the Assembly lulekani Institute for Democracy, 1999:17). and its committees; and The Constitution also enjoins provincial leg- (ii) to provide for the searching of any islatures to facilitate public involvement in the person and, where appropriate, the legislative processes. Section 118 of the refusal of entry to, or the removal of, Constitution of the Republic of South Africa any person. stipulates that: (2) The National Assembly may not exclude (1) “A Provincial Legislature must – the public, including the media, from a sit- (a) facilitate public involvement in the ting of a committee unless it is reasonable legislative and other processes of the leg- and justifiable to do so in an open and islature and its committees; and democratic society.” (b) conduct its business in an open man- The national legislature has set up the Public ner, and hold its sittings, and those of its Participation and Information Section to facili- committees, in public, but reasonable tate public participation in the legislative measures may be taken – process. This Section has set itself the follow- (iii) to regulate public access, including ing objectives: access to the media, to the legislature • Developing and providing information about and its committees; and Parliament and promoting the understanding (iv) to provide for the searching of any of the institution. person and, where appropriate, the • Making Parliament accessible to the public. refusal of entry to, or the removal of, • Building Parliament’s profile as a key institu- any person. tion of democracy. (2) A provincial legislature may not exclude • Supporting a public education campaign to the public, including the media, from a sit- reach out to all South Africans, particularly ting of a committee unless it is reasonable marginalised groups. and justifiable to do so in an open and • Mobilising the media in providing informa- democratic society.” tion to the public about Parliament (Mbete- Some of the provincial legislatures have enact- Kgositsile, 1999:5). ed their own constitutions, which, in some This office has two tasks: The first is to provide cases, make provision for public participation. public education about the workings of the They have also engaged in a number of activi- legislature and the mechanisms for public ties to educate the public about participation involvement in the legislative processes; and mechanisms and to facilitate public participa- the second is to facilitate the public’s use of the tion. The Western Cape Legislature’s standing mechanisms for public participation in the leg- committee meetings as well as sittings of the islative processes. House are open to the public and other interest- The Public Participation and Information ed bodies. Standing committees also advertise Section has emphasised marginalised groups – public hearings in the local daily newspapers. the youth and women, particularly rural women In addition, bills and invitations for comment

57 Houston on them are published in the Provincial Ga- take part (Khululekani Institute for Democracy, zette. In the event that submissions are to be 1999:16). considered, the relevant parties are invited to Although the Northern Cape has not estab- present their submissions to the standing com- lished an office dedicated to dealing with pub- mittee. lic participation, it has put in place a number of In addition to the above, the Western Cape measures to educate the public about participa- Legislature receives groups of school children, tion processes and to encourage their participa- community groups, and other interested parties tion. The NYP has been established to educate on visits to its building. These groups are taken the youth about the processes of democratic on a basic tour of the main facilities and the practice. A number of publications are utilised, legislature’s chamber where they are addressed including newsletters, brochures, flyers, hand- on the history of the building, parliament, books, pictorial pamphlets and newspaper provincial emblems and the legislative process. adverts. The legislature also conducts seminars These tours are initiated by members of the on legislative matters, which are led by mem- provincial legislature and the Office of the bers of the provincial legislature. The elderly Speaker. are encouraged to visit the legislature’s cham- In 1998 the Western Cape Legislature pro- ber, where members of the provincial legisla- duced two internal information documents ture take part in mock debates. Visiting school relating to the legislature: a basic Visitor’s children are shown video recordings of actual Guide and a more comprehensive Western debates, led through the debate, and given the Cape Parliamentary Information Pack. The opportunity to ask questions during the educa- documents provide information on the function programme.12 tions and responsibilities of the legislature, the The Free State Legislature uses constituency legislative process, provincial symbols and offices to facilitate public participation in the emblems, functions and duties of parliamentary provincial legislative processes. The main fea- office-bearers, facts and figures relating to the ture of this programme is an invitation for peti- legislature, etc. tions (Khululekani Institute for Democracy, The Western Cape Legislature has not, how- 1999:14-15). ever, established an office dedicated to dealing The Gauteng Legislature has set up the with public participation: at present the Library Standing Committee on Petitions and Public and Research Service is managing this func- Participation, together with an office of support tion. The Western Cape Legislature has, never- staff to this Committee, to facilitate public par- theless, begun a process to establish such an ticipation in the process of governance in this office and to find ways to encourage and facili- province.13 The main activities of the Com- tate public participation.11 mittee and the office include: the receipt and In KwaZulu-Natal (KZN), the Public Partici- processing of petitions; the production of pation Unit provides information on legislative posters; the production of a leaflet series that developments through action-alert documents provides information on the functioning of the to notify people of public hearings. The Unit legislature and how the public should be also runs regional workshops to bring commu- involved in the legislature’s processes; and nity organisations together to plan joint ongoing workshops of two types, namely, one- responses to legislative issues. It provides train- day lay person’s education workshops, and ing to community-based trainers on the struc- two-day trainer’s workshops to prepare trainers ture of the provincial legislature, and on how to to educate their own communities on the peti- interact by lobbying and drafting submissions. tions and public participation process. The In addition, there is a volunteer monitoring pro- main vehicles for implementing public partici- gramme whereby information on legislative pation are the parliamentary constituency matters is disseminated through non-govern- offices, through which the legislature facilitates mental organisations (NGOs) to communities. contact between members of the public and The Unit is also developing information packs members of the provincial legislature for distribution aimed at alerting stakeholders (Khululekani Institute for Democracy, to imminent legislation and providing informa- 1999:15). In addition, the legislature has tried tion in both English and Zulu on how they can to bring public involvement closer to the people

58 Houston by holding public hearings in six regions of the verse for the sample design was all adult province. African people in these areas over the age of 18 The Programme on Governance of the years. Each focus group brought together Canadian International Development Agency between 10 and 18 randomly selected individu- assisted the Public Participation Office of the als of various ages and both sexes,17 drawn Gauteng Legislature by organising workshops from the most disadvantaged sectors of society in seven disadvantaged communities to prepare in terms of education, unemployment, poverty, for public hearings to be held by the welfare etc. Use was made of a semi-structured inter- committee of the Provincial Legislature. The view format, and an attempt was made to cover first stage of the outreach programme was a topics such as participation in provincial leg- workshop to explain the role and function of islative processes; knowledge of the political the provincial legislature and to explain the system; awareness of and involvement in public issues to be addressed by the committee. The participation education programmes; and inten- second stage was designed to assist people tion to participate in provincial legislative interested in preparing a presentation or state- processes.18 ment to be used at the welfare committee’s Tables 1 and 2 (over page) provide indica- public hearings (Sutherland, 1999:37-8). In tions of the level of participation in various leg- addition, the Khululekani Institute for Demo- islative processes. cracy works with elected representatives in this It is clear that there is a low degree of public province to facilitate interaction in parliamen- participation at all levels of the political struc- tary constituency offices (Khululekani Institute ture. Over 60% of respondents have never for Democracy, 1999:15). The legislature also attended a public hearing of a provincial legis- intends to go on a province-wide road show, to lature and 17% seldom do so. Slightly more draw the public’s attention to the role of the than 12% of respondents indicated that they legislature, as well as to increase awareness often attend public hearings of provincial legis- about public participation processes. latures while only 3.5% of respondents indicated continuous attendance at such hearings. 2. LEVELS OF PUBLIC PARTICIPATION, PUBLIC Over 60% of those respondents who indicated KNOWLEDGE ABOUT PARTICIPATION their attendance at a public hearing stated that PROCESSES, AND INTENTION TO PARTICIPATE they never present statements at these hearings. Two methodologies are used in this study: the Close to 15% indicated that they seldom pre- first is derived from the results of a national sent statements. 12.8% and 6.1% of the respon- survey conducted by the Human Sciences dents who attended public hearings presented Research Council (HSRC) in March 1999; and statements often or continuously, respectively. the other is a series of focus group interviews Interaction with parliamentary constituency conducted in Gauteng in late 1999. offices is particularly low, with 73.2% of The HSRC survey was administered to ran- respondents indicating that they never made dom clustered national probability samples of inquiries at these offices, and 12.2% indicating 2200 respondents14 throughout the Republic of that they seldom do so. Only 6.7% of respon- South Africa in March 1999.15 The universe for dents often made inquiries at parliamentary the sample design was all members of the constituency offices and 2.1% do so continu- South African population over 18 years, which ously. was stratified according to the nine provinces Respondents in the Eastern Cape indicate a and the four racial groups. Some of the data higher level of participation than any other used in this analysis are drawn from selected province in all the processes dealt with in the questions in the survey around topics such as table. This province is closely followed by participation in legislative processes; knowl- Gauteng and KZN. The Northern Cape, Free edge about legislative processes; intention to State, Western Cape and North West have limit- participate in legislative processes; and percep- ed attendance at public hearings of their provin- tions of ability to influence government deci- cial legislatures, as well as below the national sions. average for presentation of a statement or opin- Ten focus group interviews were conducted ion at a public hearing. Public interaction with in informal settlements in Gauteng.16 The uni- parliamentary constituency offices is also low in

59 Houston

Table 1: Participation in various processes and institutions by province, March 1999

Participation EC FS GT KN MP NC NP NW WC Total

Never attend a public hearing of a provincial legislature 56.0 78.2 54.2 53.2 70.2 83.9 63.9 65.7 81.0 61.8 Seldom attend a public hearing of a provincial legislature 12.8 16.6 26.2 19.0 11.8 9.7 9.4 20.1 9.2 17.0 Often attend a public hearing of a provincial legislature 23.0 2.9 14.9 9.3 13.5 4.9 18.3 10.1 3.6 12.6 Continuously attend a public hearing of a provincial legislature 0.1 2.4 2.5 4.2 1.8 0.0 3.8 0.4 0.6 3.5 Never present a statement or opinion at a public hearing 50.4 71.9 54.1 58.6 69.8 83.3 58.4 66.7 81.7 61.8 Seldom present a statement or opinion at a public hearing 15.4 18.9 21.2 13.3 11.3 6.9 10.0 15.0 7.7 14.6 Often present a statement or opinion at a public hearing 18.9 7.8 14.4 8.2 12.9 8.2 22.6 13.8 4.7 12.8 Continuously present a statement or opinion at a public hearing 11.9 1.5 8.3 8.7 1.8 0.0 4.4 0.8 1.6 6.1 Never make inquiries at parliamentary constituency offices 62.1 88.3 66.3 71.4 84.7 87.7 74.1 76.6 83.3 73.3 Seldom make inquiries at parliamentary constituency offices 11.7 9.7 23.0 6.4 10.2 8.7 9.5 15.5 5.0 12.2 Often make inquiries at parliamentary constituency offices 14.0 1.5 6.9 4.2 2.6 2.0 10.6 3.9 6.1 6.7 Continuously make inquiries at parliamentary constituency offices 5.6 0.5 1.1 3.0 0.7 0.0 1.1 0.4 1.8 2.1 the Free State, Northern Cape, North West and Thus, participation by Africans is highest in all Mpumalanga provinces. Respondents from the the areas of participation covered in the table. Northern Cape registered the highest levels of Just above 50% of Africans never attend a pub- people who never participate in certain political lic hearing of a provincial legislature or pre- activities, ranging from 83.9% who never attend sented a statement at a public hearing. a public hearing of the provincial legislature, to However, those African respondents who sel- 87.7% who never make inquiries at parliamen- dom (which indicates at least some activity), tary constituency offices. The Western Cape fol- often or continuously engaged in these activi- lows closely behind in levels of non-participa- ties are more than the national average in each tion, while 88.3% of respondents from the Free case. In particular, more than 15% of African State do not make inquiries at parliamentary respondents indicated that they often participat- constituency offices. ed in each of these activities. Interaction with The racial dimension is particularly signifi- parliamentary constituency offices is particular- cant, given South Africa’s history and continu- ly low for Africans, with about 69% who never ing racial polarisation at the political level.19 make inquiries at these offices.

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Table 2: Participation in various processes and institutions by race, March 1999

Participation African Coloured Indian White Total Never attend a public hearing of a provincial legislature 54.3 77.8 74.0 89.1 61.8 Seldom attend a public hearing of a provincial legislature 20.1 7.6 19.1 6.1 17.0 Often attend a public hearing of a provincial legislature 15.1 9.6 5.3 2.3 12.6 Continuously attend a public hearing of a provincial legislature 4.2 2.4 0.0 1.1 3.5 Never present a statement or opinion at a public hearing 53.9 78.2 76.9 90.2 61.8 Seldom present a statement or opinion at a public hearing 17.2 6.9 21.5 4.2 14.6 Often present a statement or opinion at a public hearing 15.9 6.5 0.0 3.0 12.8 Continuously present a statement or opinion at a public hearing 7.3 5.3 0.0 1.6 6.1 Never make inquiries at parliamentary constituency offices 68.9 83.1 76.4 89.8 73.2 Seldom make inquiries at parliamentary constituency offices 14.2 5.4 22.0 3.9 12.2 Often make inquiries at parliamentary constituency offices 7.6 5.6 0.0 3.8 6.7 Continuously make inquiries at parliamentary constituency offices 2.2 3.4 0.0 1.0 2.1

Participation by whites and Indians is partic- majority of interviewees had limited interaction ularly low, while there is a slightly higher level with formal political structures and processes. of participation by coloureds. Thus, 5.3% of Not one of the approximately 160 interviewees Indians and 2.3% of whites often attend public had participated in any formal way in the hearings of a provincial legislature; not one processes of provincial structures. None of the Indian and only 1.1% of whites indicated that participants had interacted with parliamentary they continuously attend public hearings of a constituency offices, nor had there been any provincial legislature; not one Indian respon- participation in processes of the national legis- dent indicated that they often or continuously lature and government departments. The only present a statement at a public hearing, while form of participation was at local level, includ- only 3.0% and 1.6% respectively of white ing attending ward meetings, taking complaints respondents often or continuously presented a to councillors, and attempting to influence local statement at a public hearing; none of the government decisions through various organi- Indian respondents often or continuously made sations of civil society. These varied from set- inquiries at parliamentary constituency offices; tlement to settlement, but the overall impres- and 3.8% and 1% respectively of white respon- sion was also a low level of interaction with dents stated that they often or continuously local government structures. made inquiries at parliamentary constituency Public participation in political processes is offices. Non-participation by whites is particu- dependent to some extent on:20 larly high, ranging from 89.1% who never • public knowledge about participation mecha- attend a public hearing of a provincial hearing nisms in legislative processes to 90.2% who never present a statement at a • intention to participate in legislative process- public hearing. es Non-participation was also high for coloureds • perceptions of ability to influence govern- at all levels of the political structure. Thus, ment. 77.8% never attend a public hearing of a Tables 3 and 4 (over page) provide figures indi- provincial legislature, 78.2% of those who do cating levels of understanding and knowledge attend public hearings never present a statement of various processes and institutions. at a public hearing, and 83.1% never make The survey indicated widespread lack of inquiries at parliamentary constituency offices. knowledge about the Green and White Paper However, more coloured respondents partici- processes, with only slightly lower numbers of pate often or continuously in political processes people believing they had insufficient or no than do Indian and white respondents. knowledge about the processes surrounding The survey data were supported by the focus bills and acts of parliament. These range from group interviews, which indicated a low level the 78.7% who believed they had insufficient or of participation among residents of Gauteng’s no knowledge of the act process, to the 91.1% urban informal settlements. The overwhelming who believed they had insufficient knowledge

61 Houston

Table 3: Understanding and knowledge of processes by province, March 1999

Understanding EC FS GT KN MP NC NP NW WC Total

Insufficient or no knowledge of Green Paper process 79.8 91.6 89.3 95.4 92.1 94.0 97.5 95.0 91.2 91.1 Sufficient knowledge of Green Paper process 20.2 8.4 10.7 4.6 7.9 6.0 2.5 5.0 8.8 8.9 Insufficient or no knowledge of White Paper process 82.2 89.1 85.2 95.2 92.9 90.7 95.9 91.2 89.5 89.6 Sufficient knowledge of White Paper process 17.8 10.9 14.8 4.8 7.1 9.3 4.1 8.8 10.5 10.4 Insufficient or no knowledge of the Bill process 78.7 86.3 78.2 89.5 83.6 77.0 91.9 81.4 84.3 83.6 Sufficient knowledge of the Bill process 21.3 13.7 21.8 10.5 16.4 23.0 8.1 18.6 15.7 16.4 Insufficient or no knowledge of the Act process 71.3 83.8 79.1 71.6 82.6 79.1 91.4 75.4 85.5 78.7 Sufficient knowledge of the Act process 28.7 16.2 20.9 28.4 17.4 20.9 8.6 24.6 14.5 21.3 of the Green Paper process. One in 10 people no knowledge of a process. This province also have sufficient knowledge of the white paper has a low degree of participation. process, while only 8% of respondents indicat- In some cases less than 10% and in others ed sufficient knowledge of the green paper less than 20% of Africans, coloureds and process. This suggests a relationship between Indians indicated sufficient knowledge of a levels of participation and levels of understand- political process. Very few Indian respondents ing and knowledge about political processes. believed they had sufficient knowledge of any This connection is even more clearly demon- of the processes. Although whites are the most strated when the provincial variable is taken knowledgeable about political processes and into account. The Eastern Cape, for example, institutions, they also have a low level of par- which displays higher levels of participation ticipation. For this group, then, there must be than the other provinces, also has relatively other reasons for the low level of participation high levels of understanding and knowledge of in political processes. political processes and institutions. In the The focus group interviews similarly reveal- Western Cape, by contrast, between 84.3% and ed high levels of ignorance about policy-mak- 91.1% of respondents indicated insufficient or ing and legislative processes and institutions.

Table 4: Understanding and knowledge of processes and institutions by race, March 1999

Understanding African Coloured Indian White Total

Insufficient or no knowledge of Green Paper process 92.5 89.9 91.3 84.4 91.1 Sufficient knowledge of Green Paper process 7.5 10.1 8.7 15.6 8.9 Insufficient or no knowledge of White Paper process 91.4 87.6 93.2 80.7 89.6 Sufficient knowledge of White Paper process 8.6 12.4 6.8 19.3 10.4 Insufficient or no knowledge of the Bill process 86.5 86.2 84.3 66.2 83.6 Sufficient knowledge of the Bill process 13.5 13.8 15.7 33.7 16.4 Insufficient or no knowledge of the Act process 81.8 86.5 81.6 56.5 78.7 Sufficient knowledge of the Act process 18.2 13.5 18.4 43.5 21.3

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Table 5: Intention to participate in various processes and institutions by province, March 1999

Intention to participate EC FS GT KN MP NC NP NW WC Total

Likely to complain to a member of the provincial or national legislature 56.2 37.6 47.5 24.5 44.7 25.7 36.3 28.8 21.4 36.3 Unlikely to complain to a member of the provincial or national legislature 40.1 57.7 47.8 59.9 51.8 73.9 51.4 65.7 67.2 54.6 Likely to participate in a public hearing of a provincial legislature 49.5 45.2 49.0 32.2 58.1 29.2 48.5 42.9 38.2 43.9 Unlikely to participate in a public hearing of a provincial legislature 37.7 48.8 46.2 52.0 24.4 44.5 19.0 24.1 30.7 38.7 Likely to participate in a public hearing in the national legislature 57.6 31.3 37.6 21.9 35.6 19.4 31.9 32.0 35.0 35.0 Unlikely to participate in a public hearing in the national legislature 27.2 62.3 57.2 52.9 41.0 49.3 27.0 31.8 34.2 43.7

Most of the interviewees in the focus groups public knowledge about participation processes were unaware of the role of legislatures, and through leaflets, posters and workshops. This some interviewees were even unaware of the lack of knowledge about political institutions existence of provincial legislatures. Although and participation processes is an important fac- most of the interviewees were aware of peti- tor underlying low levels of participation. tions, most had not participated in drawing up a It is clear that knowledge and understanding petition. Moreover, virtually all the intervie- of political processes and institutions is only wees were unaware of the public hearing one factor that affects participation. Participa- process. The lack of knowledge about con- tion is also determined by the willingness of stituency offices was almost total, with only a citizens to participate. Tables 5 and 6 indicate handful of interviewees aware of the closest the level of intention to participate in various constituency office to their homes. In addition, processes. Respondents were asked how likely none of the interviewees in Gauteng had heard is it that they would engage in particular forms of the Petitions and Public Participation Office of participation. of the legislature, or of any attempts to expand The majority of respondents (54.6%) indicat-

Table 6: Intention to participate in various processes by race, March 1999

Intention to participate African Coloured Indian White Total

Likely to complain to a member of the provincial or national legislature 41.6 28.8 18.0 23.6 36.3 Unlikely to complain to a member of the provincial or national legislature 49.8 61.8 71.7 72.2 54.5 Likely to participate in a public hearing of a provincial legislature 48.8 40.1 35.0 21.6 43.9 Unlikely to participate in a public hearing of a provincial legislature 35.3 24.8 52.5 63.6 38.7 Likely to participate in a public hearing in the national legislature 37.4 35.1 42.2 20.2 35.0 Unlikely to participate in a public hearing in the national legislature 41.3 29.3 40.8 67.1 43.7

63 Houston ed that they were unlikely to complain to a groups who were likely to do so. More white member of the provincial or national legisla- respondents were unlikely to participate in pub- ture. Just more than one-third of respondents lic hearings at all levels of the political struc- indicated an intention to complain to members ture than respondents in this group who were of provincial and national legislatures. More likely to participate in this process. The majori- respondents indicated that they were likely to ty of African respondents indicated that they participate in a public hearing of a provincial would be unlikely to participate in public hear- legislature (43.9%) than those that indicated ings of the national legislature. The proportion they were unlikely to do so (38.7%). Respond- of Indians (52.5%) and whites (63.6%) who ents were less likely (43.7%) than likely (35%) indicated that they were unlikely to participate to participate in a public hearing of the national in a public hearing of a provincial legislature is legislature. Thus, the likelihood of participation particularly high. These figures, together with in legislative processes decreases at levels high- the figures indicating a lack of intention to par- er up the political system. The table demon- ticipate in the other processes in table 6, sug- strates a progressive decline in willingness to gest reluctance on the part of these groups to participate in institutions at higher levels. participate in political processes in the new There was a markedly higher likelihood of South Africa. Willingness to participate for all participation by people from the Eastern Cape four groups declines progressively at higher in participatory processes at virtually all levels levels of the political structure. of the political structure than people from the The focus groups demonstrated a high will- other provinces. Respondents from the Western ingness to participate at the local level, and a Cape indicated a lower likelihood of participat- progressive decline in willingness to participate ing than any other province, with some vari- in institutions at higher levels. This could be ance. In KZN and the Northern Cape, for exam- due to a number of factors, including a primary ple, there was a marked reluctance to interact concern with issues that fall within the domain with the provincial and national levels of gov- of local government structures, the distance ernment. Respondents in the Eastern Cape were between local communities and the location of more likely to participate in public hearings of structures at higher levels, as well as ignorance the national legislature than in public hearings about the role of the latter structures. The focus of the provincial legislature. In all the other group interviews indicated a direct relationship provinces there was a higher likelihood of par- between lack of knowledge about the role of ticipation in the processes of legislatures at the provincial legislatures and willingness to par- provincial level than at the national level.21 ticipate. Initially there was limited interest More African, coloured, Indian and white among the interviewees in the participatory respondents believed they were unlikely to take processes of the provincial legislatures. How- their complaints to a member of the provincial ever, once the group was informed about the or national legislature than respondents in these role played by the provincial legislatures, and

Table 7: Perceptions of ability to influence government decisions by province, March 1999

Perceptions EC FS GT KN MP NC NP NW WC Total

It is possible to influence national government decisions 76.8 52.8 56.3 23.7 40.6 40.8 46.0 41.5 21.9 45.1 It is NOT possible to influence national government decisions 20.5 40.3 36.7 58.7 53.8 50.8 44.6 54.7 43.1 43.4 It is possible to influence provincial government decisions 62.8 44.8 52.4 18.7 33.9 29.8 40.8 31.9 18.5 38.5 It is NOT possible to influence provincial government decisions 22.1 45.8 39.6 56.5 51.6 50.4 45.5 55.8 36.9 45.0 It is possible to influence local government decisions 69.9 53.5 55.8 34.5 35.9 41.2 39.5 32.7 25.6 45.0 It is NOT possible to influence local government decisions 26.5 39.3 32.1 46.1 50.4 45.1 48.1 57.6 35.0 40.0

64 Houston

Table 8: Perceptions of ability to influence government decisions by race, March 1999

Perceptions African Coloured Indian White Total

It is possible to influence national government decisions 50.6 33.5 32.7 25.6 45.1 It is NOT possible to influence national government decisions 39.8 41.1 55.1 62.4 43.4 It is possible to influence provincial government decisions 43.1 27.4 21.1 23.6 38.4 It is NOT possible to influence provincial government decisions 43.0 35.0 64.4 58.1 45.0 It is possible to influence local government decisions 47.2 33.6 40.0 41.3 45.0 It is NOT possible to influence local government decisions 40.3 34.9 35.4 43.0 40.0 the importance of public participation, there Province are notable for the small numbers of was a notable increase in enthusiasm about par- people who believed they could influence gov- ticipation. It follows that increasing the public’s ernment decisions at all levels of the political knowledge about the role of legislatures, about structure. This can be related to the lower like- the importance of public participation, and lihood of participation in political processes about participation processes may well lead to expressed by respondents from some of these an increase in levels of public participation. provinces. The level of public participation and inten- White respondents were particularly sceptical tion to participate in legislative processes will about their ability to influence government also be influenced by people’s perceptions of decisions. There were more respondents in this their ability to influence government decisions. group who believed it was not possible to influ- Respondents were asked to agree or disagree to ence government decisions than believed it was the statement: “People like you can have an possible to influence government at all levels of influence on government decisions.” the political structure. By contrast, more Afri- Roughly the same number of respondents can respondents believed it was possible to believed it was (45.1%) and was not (43.4%) influence national, provincial and local govern- possible to influence national government deci- ment decisions than believed it was not possi- sions. More respondents believed it was not ble to do so. However, around 40% of African possible to influence provincial government respondents indicated that it was not possible to decisions (45%) than believed it was possible influence national, provincial and local govern- to influence decisions (38.5%) at this level. The ment decisions. majority of respondents (45%) believed it was Almost two-thirds of the Indian respondents possible to influence local government deci- believed it was not possible to influence sions. Nevertheless, the proportion of respon- provincial government decisions, compared to dents who believe it is not possible to influence 21% who believed they could influence deci- government decisions is high (above 40%) for sions at this level. The majority of Indian all levels of government. respondents also believed it was not possible to The majority of respondents in the Eastern influence decisions made at the national level. Cape believed they were able to influence gov- More Indian respondents believed, however, it ernment decisions at all levels of the political was possible to influence local government structure. This corresponds to very low propor- decisions (40%) than believed it was not possi- tions who believed it is not possible to influ- ble (35.4%) to do so. The majority of coloured ence government decisions at all levels. There respondents believed it was not possible to was a strong feeling among respondents from influence decisions made at the local, provin- KZN that it was not possible to influence gov- cial and national levels. However, these were ernment decisions at the national and provincial generally lower than the national averages for levels, with about 46.1% of respondents from people who believed it was not possible to this province feeling this way about local gov- influence local, provincial and national govern- ernment. In the North West province the major- ment decisions. ity of respondents believed it was not possible There may be many reasons for low levels of to influence government decisions at all levels public participation, but one reason that has of the political structure. KZN and the Western particular relevance for participation in legisla-

65 Houston tive – and other – processes may be a belief low levels of participation. In particular, among the public that their input would not be respondents in the Western Cape indicated low given adequate consideration. This perception levels of willingness to participate in processes is particularly clear among white respondents, at all levels of the political structure, while and to a lesser extent among Indian and African Indian and white respondents indicated reluc- respondents, at the provincial and national lev- tance to participate in these processes. In part, els. It is therefore necessary to remove any this reluctance to participate can be explained doubt that people – and particular race groups – by perceptions of the ability to influence gov- may have about their ability to influence government decisions. Once again, respondents ernment decisions in order to encourage partici- from the Western Cape, as well as Indian and pation in political processes. white respondents, were sceptical about their ability to influence government decisions. This CONCLUSION indicates a direct relationship between willing- South Africa’s new democracy defines democ- ness to participate and perceptions of ability to ratic governance as regular interaction between influence government decisions. the citizens and popularly elected institutions. In other words, in regions and among racial This includes, at one level, the establishment of groups where there is scepticism about the abil- a number of mechanisms and processes for ity to influence government decisions, there are public participation and, at another level, the low levels of intention to participate in political obligation imposed on various political struc- processes. Perceptions that it is not possible to tures to facilitate public participation in their influence political decisions in certain provin- activities. The former includes lobbying by ces and among certain racial groups arise from organised groups, the raising of issues by con- a variety of factors, including alienation from stituents at parliamentary constituency offices, the political system, opposition to the ruling petitions and public hearings for participation party, lack of faith in democratic institutions, in the activities of legislative structures. The perceptions that public inputs are not given latter includes the establishment of offices and adequate attention, etc. agencies and a variety of programmes by the On the other hand, the focus interviews indi- various legislatures to encourage participation cated that lack of knowledge about the political in their activities. It has, however, been demon- system and mechanisms for participation were strated that public participation in legislative primarily responsible for low levels of partici- processes is generally low, and is particularly pation. As pointed out above, once the partici- low for coloureds, Indians and whites. In part, pants were informed about the role played by the reason for this is a general lack of knowl- the provincial legislatures, and the importance edge about the role of political structures and of public participation, there was a notable the mechanisms for public participation. increase in enthusiasm about participation. The latter was clearly demonstrated in the Lack of knowledge about the political system, focus group interviews, where there was very as well as perceptions of ability to influence limited knowledge of political institutions and government decisions are therefore important processes as well as low levels of participation. factors underlying low levels of public partici- It therefore follows that a public education pation in political processes. campaign is required to increase knowledge It is important, then, that action be taken in about the functions of political structures and these two areas to avoid the danger of margin- the mechanisms for public participation. alising sectors of the population either through There are, however, distinct regional as well ignorance of their right to – as well as mecha- as racial variations in the level of intention to nisms to – participate in democratic processes participate in various processes, which indicate or by decreasing their disposition to participate reasons other than lack of knowledge for the in the political system.

66 Houston

ENDNOTES

1) Stephen Rosenstone and John Hansen 7) There are a wide variety of ways in which (1993: 238) have found, for example, that people participate in politics, which ranges in the United States the smaller the number from voting, active membership of a politi- of participants in political activity, the cal party or interest group, to holding pub- greater the inequality in participation. In lic office, with a range of different types of such cases, participation is likely to be high activity in between. Dowse and Hughes among more privileged citizens – those (1986: 267) draw on Milbrath’s (1965:19) with high incomes, better education, etc. – typology of political activities and Verba thus undermining political equality by and Nye’s (1972: 79-80) study of modes of making influence unequal (refer to participation. Political participation is seen Lijphart, 1997:1). Perhaps the most signifi- to take the form of a hierarchy of involve- cant link between high levels of participa- ment, ranging from the person engaged tion and democracy is the legitimacy the only in voting, to the person only engaged former confers. in near-to-home concerns, people engaged 2) Ben-Eliezer (1993:408n) points out that purely with personal problems, the cam- scholars such as Schumpeter (1950) and paigners involved in electoral campaigns, Morris-Jones (1954) advocate a relatively and activists who involve themselves in the low degree of participation for democracy whole field of political activity, including while Bachrach (1967) and Pateman (1970) the holding of political office (Dowse and advocate a high degree of participation. Hughes, 1986:267). However, in this study 3) This includes length of residence, presence political participation is limited to partici- of active community organisations, institu- pation in democratic legislative processes tional factors, such as registration require- as defined. ments and processes, the electoral system, 8) It must be noted, however, that constituen- the frequency of elections, etc. (refer to cy offices are not directly related to the Lijphart, 1997:7-8). legislature. Instead, they are agencies of 4) This is generally called the feeling of lack political parties. They nevertheless func- of political efficacy or the feeling that one tion as mechanisms for public participa- is incapable of influencing the decision- tion. making process. It includes lack of internal 9) There is a wide variety of interest groups political efficacy, or the feeling that as an such as business organisations, trade individual one has no influence on govern- unions, civic organisations, action groups, ment decisions, and lack of external environmental groups, and national self- political efficacy, which is the feeling that help and voluntary non-governmental governments’ do not respond to citizens’ organisations that try to influence legisla- concerns. tive and policy-making processes on a vari- 5) Alienation can include non-allegiance, dis- ety of issues through this mechanism. affection, estrangement, political power- 10) An example of how interest groups can lessness, and anomie. affect legislation in South Africa through 6) Formal democracy generally has four fea- an effective lobbying campaign is given by tures: “regular free and fair elections; uni- Douglas (1997). versal suffrage; accountability of the state’s 11) This information was supplied by James administrative organs to the elected repre- Retief, Senior Librarian of the Western sentatives; and effective guarantees for Cape Provincial Legislature. freedom of expression and association as 12) This information was supplied by Mr J. C. well as protection against arbitrary state Qwemesha, Head of Committees and action.” Participatory democracy entails a Proceedings, Northern Cape Provincial fifth dimension, namely, high levels of par- Legislature. ticipation in the political process through a 13) This information was supplied by the variety of institutional channels (refer to Petitions and Public Participation Office of Huber, et. al., 1997). the Gauteng Provincial Legislature.

67 Houston

14) We have applied the term “interviewees” educated, had some knowledge of political to people who participated in the focus processes and institutions. The extent of groups and the term “respondents” to peo- their knowledge was, however, also very ple who were interviewed for the national limited, and most were as unaware of par- surveys. ticipation processes as the older intervie- 15) The HSRC has conducted regular national wees were. surveys of public opinion for several years. 18) At the end of each focus group interview The survey instrument comprised a ques- the interviewees were given a brief questionnaire consisting of 38 pages of questionnaire which covered the schedule for tions. It was divided into different topics the focus groups in somewhat more detail. and the duration of interviews of respon- This was done in order to ensure that if any dents was between 60 and 90 minutes. A participant was reluctant to talk for any sample of 2200 respondents was selected reason, the data would be picked up in the throughout South Africa in clusters of eight questionnaire. and situated in 338 census enumerator 19) The results for the first democratic election areas (EAs) as determined in the 1996 cen- in April 1994 demonstrate the salience of sus. Each EA was classified in terms of a group identity in South African politics. dominant lifestyle category, based on an The results indicate a racial census HSRC analysis of the 1996 census data. In although considerable cross-racial voting order to enhance adequate representation in took place with all the major parties draw- the sample from each of the nine provinces ing support from every race group. The and from each of the four dominant racial National Party (NP) was supported by 65% population groups, the sample was strati- of the coloured and Indian voters in the fied by province and by race. Dispropor- 1994 election, with 60-70% of coloured tionately large samples were drawn from voters in the Western Cape voting for the areas known to be inhabited by the two party (Reynolds, 1994). Similarly, a large smallest components of the population, proportion of the white vote went to the namely (i) areas with dominantly Indian NP. Apartheid indoctrinated racial fears of populations and (ii) the Northern Cape. In African domination and suspicion of black terms of population group (race), the administrative competence, loss of relative spread was sufficiently wide to facilitate status in the racial hierarchy, and competi- statistical generalisations about opinions tion for jobs and housing were in large part prevailing among persons of each of the responsible for this support (Finnegan, population groups. Each case was then 1994; Adam, 1994:27-28). The Freedom weighted so that the resultant weighted Front (a conservative Afrikaner political dataset would approximate the distribution party) achieved 2.17% (400 000 white vot- of the population of South Africa in terms ers) of the support of national voters in the of population group and province. elections. 94% of the support gained by the 16) Focus group interviews were held in the African National Congress came from the following informal settlements: Nellma- African community (Reynolds, 1994). pius, Free and Fair (Cullinan); Alexandra 20) There is a wide variety of other reasons township; Freedom Square (Thembisa); why people do not participate in political Diepsloot (Randburg), Atteridgeville processes, such as apathy, lack of interest, (Extension 6); Wattville; Mandela Village alienation from the political system, feel- (Mamelodi); Mandela Village – Block S ings of lack of political efficacy, opposition (Soshanguve); and Thokoza. In all, 160 to the ruling party, etc. The focus on people participated in the ten focus group knowledge of participation mechanisms is interviews. crucial because these processes are new in 17) There was very little difference in the South Africa, while the majority of South responses to the set of questions dealt with African citizens have only recently been here based on variables such as age, educa- allowed to participate in provincial and tion and sex. Only a very small number of national political processes. In addition, young people, who also tended to be better intention to participate in legislative pro-

68 Houston

cesses provides insight into levels of alien- levels of intention to participate may signi- ation, particularly among certain racial fy satisfaction with the performance of the groups. Finally, perceptions of ability to provincial legislature instead of alienation influence government provide insight into or feelings of lack of political efficacy. By levels of perception of lack of political effi- contrast, high levels of intention to partici- cacy. pate may signal dissatisfaction with the 21) One should avoid reading too much into performance of the provincial legislature these figures because it is possible that low and a desire to intervene where possible.

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70 Accommodating Groupism in a Liberal Democratic Dispensation

Eric Labuschagne

“What became of the Black People of At the same time Rustow wrote about a tide Sumer?” the traveller asked the old man, of democratic change “sweeping the world, not “for ancient records show that the people of only in the once-monolithic communist regions Sumer were black. What happened to but also in a wave that started in Mediterranean them?” Europe in the mid-1970s and spread to Latin “Ah,” the old man sighed. “They lost their America, Asia, Africa and even South Africa”2 history, so they died” – a global wave of democratisation based on (A Sumer Legend, from Williams C., “liberal” democratic principles. The destruction of black civilisation, 1996). The question that suddenly confronted the academic fraternity was: Is liberalism or “indi- INTRODUCTION – THE PROBLEM vidualism” (the latter as one of the underlying This paper argues that an essential requirement principles of liberalism) not the direct opposite for the success of any liberal democratic gov- of communitarianism or groupism (the latter as ernment is the inclusion of certain groupings, one of the underlying principles of communi- just because they are groupings. tarianism)? This question, if answered affirma- A problem arises, however, when one con- tively, would then have implied an academic siders the fact that a democratic government is reflection on a world that is developing into a built upon the principles of democracy, which mutually excluding and divergent division. in turn is built upon the principles of liberal- “The Liberal-Communitarian Debate”3 as ism, which in turn has its roots in the attempt to Markate Daly recaps it, was born. He qualifies dissolve group-loyalties. the “debate” however as: The problem is then: How can we accommo- “Not a conflict between the values of liber- date certain group-loyalties in a liberal democ- ty and of community. The debate focuses ratic dispensation if those group-loyalties are on the theoretical and social consequences exactly the opposite of what any democracy is of stressing either liberty or community as built upon? the primary value in society.” The alternative of either stressing the one or the 1. COMMUNITARIANISM VERSUS LIBERALISM? other in a society thus appears to be a society Not too long ago, way back in the early 1990s, where the values of liberalism and the values of we were introduced to a new school of thinking communitarianism complement one another. In commonly referred to as “communitarianism” other words, a society where individualism and or, as I wish to call it, “groupism”. This new groupism coexist without the one infringing theoretical approach came after a worldwide upon the rights of the other. resurgence of group identities. In general it However, while the idea of peaceful coexis- was, and still is, a very definite attempt to give tence appears to be very attractive, it does recognition to and justification for people appear also to be unattainable. Why else would organising themselves into groups.1 there be a tendency for either liberty excluding

71 Labuschagne community or vice versa? More to the point: ty as the source of all meaning and the Are they not in principle at loggerheads with highest human good, insisting that a sharp each other where the one has been introduced distinction be made between group identifi- purposely to negate the other? This is precisely cations to be encouraged and factionalisms what George Ketab’s introductory comments to and xenophobias to be discouraged.”8 Notes on pluralism4 alludes to when he com- If one now were to study Ketab’s “group-clam- ments: ouring” and remember Holmes’ warning “Constitutional democracy exists in order to against factionalisms and xenophobias based on give people a chance to be individuals.” zealous misplaced loyalty, then the lasting However, as he continues, what we find today impression still is that: are “people-citizens of constitutional democra- • the resurgence of groupism on a global scale cies – clamouring for groups”. is indeed very close to, if not very distinct Constitutional democracy has according to from, examples of factionalisms and xeno- this analysis failed in its raison d’être. If group- phobias in the making clamouring is the order of the day, then the • this resurgence might hold a sure threat to notion that democracy has conquered the world democracy and democratisation in the future. is a fallacy. We might even have to conclude However, the principle that we now have to that the third reverse wave of democratisation take into account is that the accommodation of has started. Von Beyme’s “third growth-wave groupism in a liberal democratic dispensation is of right-wing extremism” that started in the possible provided that group-loyalty does not 1980s, was just the beginning.5 Huntington not turn bad, that is, when a member’s opportunity only had it right with his notion that historically to be an individual is threatened or, in extreme “a primary wave of democratisation” is usually cases, annulled. followed by “a reverse wave of democratisa- According to this principle neither individu- tion.6 His prediction that The Clash of Civilisa- alism nor groupism is ever absolute. In a dis- tions?7 might be the future of world politics, tinct context they each qualify to exist side-by- has definite merits. If one considers the way in side given that each functions as “a relative which their members belonging to a certain interpretation of the absolute”. The opposite of group unite countries on a broader scale, his “a relative interpretation of the absolute” is words acquire prophetic status. mankind’s tendency to want to make “absolute interpretations of the relative”. We like to think 2. A SOLUTION? of ourselves as masters of the universe where Stephen Holmes appears to have the solution. our interpretations carry absolute weight. In all In the same edition of Social Research from of history this has been the cause of many con- which Ketab was earlier quoted from, he flicts where political ideas were considered to reminds us that liberalism excludes “exclusive” be absolute. If the idea then fails and does not groupism and vice versa. He writes: get actualised, it is discarded. So if the practice “They (liberals) strove to dilute or relativise of absolute individualism fails, the alternative group identity just enough to increase the is to resort to the other extreme … absolute chances for peaceful coexistence and mutu- communitarianism (with no democracy).9 ally beneficial cooperation. … The starting Also, the fact that groupism is not discredited point for liberalism is not the atomistic indi- per se, says something about its value. Holmes vidual, then, but the moral and emotional refers to group identity diluted “just enough” to conflict that ensues when differently increase the changes for peaceful coexistence socialised individuals clumsily rub shoul- and of liberals being not anti-communitarian in ders and attempt to coexist. Liberals are not a “militant” sense. This does not prove my next blind to loyalty, therefore, but instead point but, within the context of Holmes’s arti- assume that loyalty is sometimes good and cle, hints at the fact that there might be some- sometimes bad, depending largely on the thing commendable in groupism. way conflicting affiliations and affinities This commendable virtue is the principle that are handled politically. While liberals are people organising into groups is a factual as not anticommunitarian in a militant sense, well as a “necessary” condition of living. they reasonably refuse to apotheosise loyal- Organising as part of a social club in the pub-

72 Labuschagne lic-social sphere or merely relating to a family cannot be reconciled with the conception of to share your personal-private life, hereby the individual in a liberal society”.13 addresses the human need to belong. This need Arranged marriages, for example, deny the is a natural inclination of the “wise man” partners their freedom of choice; so does the (homo sapiens) which prompts him or her to notion that women should not be allowed to get attach him- or herself to the living and the dead education; or the idea that all Afrikaans-speak- alike. ing boys should play rugby. The list is endless. You join the local church or you buy yourself The bottom line remains that in the case of cul- a new car – in both cases you address your need ture there again arises a conflict between to belong by finding anchor-points in your life. groupism and individualism. Principally we can When the storms of life then erupt, you have a quickly subscribe the remedy as it was worked shelter where you can wait for the storms to out in the above. This would then mean that the abate. Especially in our modern world where obligation is on the state to neutralise any cul- people are flooded with useless information, tural expression that disallows individual people escape their fate by clinging on to cer- choice. The classic Sotho experience comes to tain fixities. mind. It remains unequivocally true that a group can be cruel to, and destructive for, a democra- 3. THE SOTHO EXPERIENCE cy.10 Yet the reality of bad groupism being so As Sandra Burman reminds us,14 the problem close to its good side, gives us no excuse to of dealing with “threatening groups” is nothing penalise groupism as such. new in African and especially South African We are subsequently left with the general history: principle that groupism is valuable as long as it “In the early days of the Cape Administra- does not turn into exclusive groupism where tion, the magistrates were very aware of the the opportunity to be an individual is denied. hostility of the Sotho chiefs, and feared that, But having solved the problem of communi- given the right conditions, they might tarianism versus liberalism in principle still attempt to lead a revolt against the Cape requires us to give it a practical side. For the government.”15 purpose of this paper we will make it practical In their reaction, the Cape government tried to in the public-social/political sphere where the neutralise the chiefs by dividing them. Junior encompassing group-mark is culture. A simple chiefs’ interests were tied to those of the gov- definition for culture would be the arts and ernment by, for example, appointing them in other manifestations of human intellectual the police force. Several of the sons of chiefs achievement regarded collectively. were also send to Cape Town in the hope that For the purpose of our discussion and also as they would acquire a new set of values.16 With our next example of accommodating groupism a similar agenda of neutralising group-loyalty, in a liberal democratic dispensation, we refer to the people were targeted. The chiefs’ followers Avishai Margalit and Moshe Halbertal’s defini- were weaned from them through “carefully cal- tion. Once more in the fall 1994 edition of culated” alterations to Sotho law in exchange Social Research11 one finds their definition of for government protection from unwelcome culture as: impositions by their chiefs.17 Widows, for “A comprehensive way of life [with the lat- example, received the right to custody and a ter] that can only exist in a group, in con- girl was allowed to marry against her father’s trast to a lifestyle, which may characterise wishes when she had reached the age of maturi- the particular manner in which individuals ty. lead their lives.”12 Another way of weaning them away was by They then plead for the protection of culture enticing the people with more money in the according to which: economy with traders buying goods from the “Human beings have a right to culture – not Sotho in exchange for money. Missionaries just any culture, but their own.” also made their contribution by drawing people A culture can, however, as they readily admit: away from their Sotho heritage through conver- “Contradict(s) the status of the individual in sions and European school education while, at a liberal society… when the group norms the same time, condemning Sotho customs. For

73 Labuschagne their part district medical officers were discred- the outset, not because the atomistic individual iting traditional superstitions in the process of is that important but because individual rights providing medical care. help to defuse the destructive effect of irra- Initially during the first eight years the efforts tional group loyalties. Loyalty is herein not did pay off. However, in particular with the necessarily a bad thing but it can grow into one. major changes to Sotho law, uneasiness with In the same manner that unrestrained loyalty the white man’s burden was beginning to show. threatens individual rights, it can also develop Through several acts of defiance – among oth- into a threat for state security. This situation ers the “War of the Guns” – the white man, his arises when this kind of loyalty requires the fur- way of life, his religion and his laws were ther rejection of shared values and symbols of a denunciated. Instead of expanding its influence society and indirectly of state authority. Marga- and conversely eroding the power of the chiefs, lit and Halbertal explain the connection: the government’s efforts drew the people closer “(But) these shared values and symbols are to each other and to the chiefs. meant to serve as the focus for citizens’ On the whole the Sotho experience proves identification with the state, as well as the that: source of their willingness to defend it even “For any government to introduce effective at the risk of their lives.”19 laws making radical changes in the daily The liberal state is thus called upon explicitly to practices of a population, it must either have protect the rights of the individual and implicit- the use of overwhelming force and be pre- ly itself. In order to do this, it must qualify as a pared to use it ruthlessly, or it must obtain “strong” state. “(S)tatelessness means rightless- the cooperation of the people … virtually ness”20 and “statelessness” is nothing else than nothing can be done without popular sup- “weak” statehood. A weak state will not only port.” fail in its protection of individual rights; it will The first possibility is by nature undemocratic. in tandem also contribute to its own downfall. If the second option to neutralise exclusive This notion that a strong state is needed for groupism is taken, then the administration or the protection of individual rights – as well as government has to be satisfied with gradual for its own survival – has been apparent in changes to established customs based on con- democratisation efforts where weak states have sideration and consultation. In the process, the been associated with democracy and subse- administration will also have to make inevitable quently also with liberalism. The resultant dis- concessions. It will further have to depend pensation was one where little to no rights could heavily on the assistance of missionaries and be guaranteed. In fact, newly democratised medical officers. As a final and most important countries after 1974 have been plagued with recourse, the administration will have to accept lawlessness. In the former Soviet Union, for that it needs the support of the paramount chief example, organised crime has been blooming and his heir; the administration will also need since the abolishment of the old order. South to bolster its power.18 Africa has proved itself to be another example The solution for dealing with an exclusive of lawlessness and subsequent rightlessness. public-social/political culture as an expression The law-abiding citizen in South Africa has of groupism, is therefore the neutralisation of been the victim of a relatively uncontrolled its group loyalty which will in turn lead to the crime frenzy ever since the inception of democ- eventual dilution or relativisation of that cultur- racy in 1994. For South Africans then, the third al group identity, or so it would seem. But the wave of democratisation did not only bring a case is alas not as clear-cut as that. The compli- new political dispensation. It also had a new cation steps in when we stop to consider the criminal dispensation with which to contend.21 obligation/s of the liberal state. On the issue of identifying democracy and more in particular liberalism with a strong state, 4. THE LIBERAL STATE AND ITS OBLIGATION/S a substantive misunderstanding must be clari- The liberal state is primarily defined by its fied. The healthy maintenance of law and order obligation to protect and advance individual essential for the survival of the liberal state, is rights. There ought to be no arguing in that. often depicted as an illiberal characteristic. In This is so, as Holmes has reminded us right at fact, statism is regarded as illiberal. The truth

74 Labuschagne is, however, that a liberal dispensation requires anthropological individual) is what one a strong state in order for it to exist. So liberal- becomes when one gives expression to, what ism utilises the state’s authority for its own we have called, “one’s human need to belong”. ends. The existence of centralised and bureau- One’s anchor-points or fixities in one’s life cratic states does, therefore, not mean that accordingly determine one’s identity. stateness itself is inherently illiberal.22 There is, however, an example of a liberal CONCLUSION state’s obligation that comes much closer to an The right to these fixities and the subsequent illiberal obligation. This brings us once again right to culture as a specific manifestation of back to our topic of discussion where we have, groupism, is of extreme importance. The alter- up to now, drawn the following conclusion: native is a society filled with schizophrenics • Groupism is valuable as long as it does not where the only difference between you and degenerate into exclusive groupism where the your neighbour is the level of schizophrenia. opportunity to be an individual is negatively The state, however, is also of extreme impor- affected or even denied. tance, and here I have to underline Thomas • With an exclusive public-social/political cul- Hobbes’ claim that outside of political society ture as a case in point, the state has the oblig- the life of man is solitary, poor, nasty, brutish ation – or so it would seem – to neutralise its and short. Aside from the importance of the group loyalty through democratic means. state keeping itself intact, is the state’s obliga- However, and this must certainly qualify as the tion to uphold, protect and forward the liberal proverbial upset of the apple cart, Margalit and democratic dispensation. Halbertal insist that human beings have a In danger of running the gauntlet, I take up birthright23 to their “own” culture even if that the gauntlet. I therefore submit the following exclusive culture contradicts the status of the for further discussion: individual in the liberal society. • Any cultural grouping in a liberal democratic Moreover, the state might be required to:24 dispensation must be allowed to exist, recog- • “use illiberal means. For example, granting a nised and supported. particular cultural group the opportunity to • An exclusive cultural grouping that contra- preserve its cultural homogeneity in a given venes liberal principles must also be allowed region under certain circumstances may exact to exist, and be recognised and supported. the price of preventing outsiders from living • The elements in the exclusive grouping that there, even if they are willing to pay the are illiberal should be gradually neutralised going prices for homes in that area through democratic means. • abjure its neutrality, in our view, not for the • The responsible party for this type of neutral- sake of the majority, but in order to make it isation is one’s provincial government. possible for members of minority groups to • The way to go about it is to, among others: retain their identity”. – Pull the exclusive culture into the liber- The state is thus expected to use illiberal means al democratic dispensation through small to condone illiberal behaviour. The justification tokens of recognition and appreciation – is as follows:25 giving, for example, paramount duties “The right to culture is, thus, not the right to and responsibilities to the culture – offer- identify with a group but the right to secure ing it the perks of the system. one’s personality identity.” – Increasingly introduce capitalism, avail- Personality identity as opposed to personal able education, and the right of freedom identity (with the latter qualifying one as an to conduct a personalised religion.

75 Labuschagne

ENDNOTES

1) Hence also the preamble to “The Res- 13) Ibid., p. 491. ponsive Communitarian Platform: Rights 14) See Chiefdom politics and alien law: Basu- and Responsibilities” – a document signed toland under Cape rule, 1871–1884 (1981). by over 50 proselytes united in their belief 15) Ibid., p. 61. that “(n)either human existence nor indi- 16) Ibid., p. 69. Noticeable is the fact that these vidual liberty can be sustained for long out- newly recruited “government employees” side the interdependent and overlapping were still allowed to speak at pitsos (public communities to which they belong”. meetings) as chiefs rather than as govern- (Published in Responsive Community, ment employees – an exception aimed at Winter 1991/2, No. 4). keeping the loyalty of their followers in 2) Rustow, Foreign Affairs, Vol. 69, No. 4, p. tact. 75. 17) Ibid., p. 75. “Carefully calculated” i.e. 3) Daly, Communitarianism, 1994, p. xix. “without too greatly annoying the chiefs”. 4) Ketab, Social Research, Vol. 61, No. 3, Ibid., p.77. p. 511. 18) Ibid., p. 185-191. 5) Von Beyme, West European Politics, Vol. 19) Margalit and Halbertal, Social Research, 11, No. 2, pp. 1-18. Vol. 61, No.3, p. 491. 6) See Huntington’s The Third Wave: democ- 20) Holmes, Social Research, Vol. 61, No.3, ratisation in the late twentieth century p. 605. (1991). 21) Taken to the extreme a weak state will have 7) Huntington, Foreign Affairs, Vol. 72, No. to surrender to anti-democratic forces – a 3, pp. 22-49. According to this: “…(T)he reverse wave of democratisation. Unhealthy fundamental source of conflict in this new statehood therefore opens up the door for an world will not be primarily ideological or oppressive regime. The citizenry of a primarily economic. The great divisions democracy expect the state to deliver the among humankind and the dominating virtue promised by that democracy and source of conflict will be cultural. … The even though the virtue of individual rights clash of civilisations will dominate global is not for the sake of the individual (but for politics” (p. 22). the sake of diffusing irrational group loyal- 8) Holmes, Social Research, Vol. 61, No.3, ties), it serves as a definite incentive for pp. 601-602. them to uphold the rules of that democracy. 9) Further examples of “thinking” (next to a With the goods not being delivered and “relative interpretation of the absolute” and individual rights not being protected, the an “absolute interpretation of the relative”), citizenry will in all likelihood reach for are the “absolute interpretation of the another messiah, in which case an oppres- absolute” which is impossible and thus sive alternative will gladly comply. amounts to sinlosism, and the “relative 22) See Holmes, Social Research, Vol. 61, interpretation of the relative” which is an No.3, p. 605-609. example of not thinking at all (hence the 23) This birthright includes (pp. 498-499): inverted commas accompanying thinking • “the right to maintain a comprehensive in the beginning of the sentence). way of life within the larger society with- 10) Take for instance the way in which organ- out interference, and with only the limita- ised crime is threatening the survival of tion of the harm principle newly founded democracies – a supreme • the right to recognition of the communi- example of factionalism and xenophobia ty’s way of life by the general society which follows of course in the footsteps of • the right to support for the way of life by its predecessor “the Mob” where the extend- the state’s institutions so that the culture ed family justifies the misplaced loyalty. can flourish.” 11) See Margalit and Halbertal, Social 24) Margalit and Halbertal, Social Research, Research, Vol. 61, No.3, pp. 491-510. Vol. 61, No.3, p. 491-492. 12) Ibid., p. 497. 25) Ibid., p.502.

76 The Impact of Constitutional Relationships Between the Three Spheres of Government: The South African Perspective

Sitembe Msaseni

ABSTRACT guiding principle to a new socio-political, cul- Each state demonstrates its constitutional and tural and economic discourse. philosophical approach in its system of government. It is extremely difficult to conceive any INTRODUCTION state that demonstrates its fundamental consti- The Republic of South Africa is a constitution- tutional principles outside its system of al democracy, henceforth the Constitution is government. viewed as a liberal piece of legislation. Further- The overriding principles of the constitution- more, the Constitution is regarded as a hybrid al system in South Africa since the adoption of piece of legislation based on principles of the 1909 and 1983 constitutions was a frag- inclusiveness, representativeness, democracy, mented system of government. This paper accountability and transparent government, seeks to venture and discuss the constitutional aimed at promoting the general well being of development that engulfed the country since the populace. The Constitution is indeed an the establishment of the Union in 1910, until acceptable final product of a collected negotiat- the period when a democratic interim constitu- ed settlement. The world views the South tion was adopted in 1993. Furthermore, the African Constitution as most liberal in the paper discusses the underpinnings and pro- sense that it encapsulates the fundamental prin- found implications of such pieces of legislation ciples of human rights as enshrined in the to the broader South African society. United Nations Charter. The South African constitutional dispensa- The Constitution also incorporates the socio- tion of the 1990s and beyond therefore articu- political and economic factors that characterise lates democratisation and transformation of the South African system of government. It structures or institutions of governance. The must also be stressed that the Constitution is two phenomena have become common clichéd fundamentally based on extensive research concepts. Nevertheless, constitutional reforms comparisons of several pieces of legislation are inevitable. It is therefore a process that is from various countries. It is also the result of unfolding, i.e., a means to realise the desired broad consultation with all stakeholders envis- outcomes. aged to be affected by the Constitution, includ- With all the constitutional endeavours, South ing local and international interest groups Africa needed a constitution that would (Msaseni, 1998). embrace a basic human rights philosophy. But The concept of hybrid emanates from the adoption of a democratic constitution does not characteristics of the Constitution. In the con- guarantee effective functioning of public insti- text of the South African Constitution, hybrid tutions and realisation of national ideals. entails that the Constitution has strong features Rather it is just one recurring process that of both federal and unitary systems of govern- would enhance institutional transformation. A ment. The concept of a quasi federal-unitary constitution should therefore be viewed as a system of government was, of course, a com-

77 Msaseni promise during the negotiation process, which adopted Act 1909, which later established what negotiators were obliged to acknowledge and was to become a Union of South Africa. observe, based on the concept of “sharing of Furthermore, the Act created a framework of power” – as articulated by the late Joe Slovo. government. It was not, however, an absolute Prominent political scientists argued against the constitutional code for the country, rather it was concept of power sharing and instead proposed a temporary provision. Since crucial matters a new phenomenon, which they termed “joint were still being decided according to the exercising of power”. Statute of Westminster, foreign and diplomatic The distinction between the two concepts is relations were, for example, referred to the fluid if there is any difference at all, because British governor-general, who was responsible the two terms were used interchangeably during for the administration of the colony (Marais and after the negotiation process. The underpin- and Driekerk, 1981:31). nings of these phenomena could be observed in Act 1909 made provision for the establish- the previous Government of National Unity ment of four major provinces, inter alia, two (GNU), adopted after the 1994 general elec- Boer Republics – the Transvaal and Orange tions. Free State – and two British colonies – the In the post-Mandela era – popularly termed Cape Province and Natal. The Act was incon- “The Madiba Magic” – the two concepts are sistent as far as its application was concerned to still by and large in operation in the Mbeki the four provinces. For example, citizens at the administration. The “final product” of the nego- Cape were obliged to register as voters, irre- tiation process culminated in the adoption of spective of race, colour and/or ethnicity (Ibid., the Interim Constitution Act 200 of 1993. The 1981:32). interim legislation made provision for the This principle was applied differently in the creation of the GNU with various government other three provinces whereby non-white citi- structures, for example, nine provincial admin- zens were not allowed to exercise their democ- istrations and the establishment of transitional ratic vote. In terms of the Act, article 137 local councils, to mention just a few. makes a provision for equal protection of the It is extremely difficult to conceptualise in two official languages – Dutch and English – practical terms the system of government that which were entrenched in terms of article 152 South Africa practices. Most people regard it as of the 1909 Constitution. a tripartite alliance or relationship between This was one of the common constitutional business, government and labour. This paper principles applicable to all four provinces. seeks to address the following: Article 152 states that if Parliament intends to • The process of devolution of constitutional amend clauses 35 and 137, a two-thirds majori- power between the national, provincial and ty of both houses of Parliament was required, local government spheres. i.e. the House of Assembly and the Senate • The nature and extent of power disseminated (Ibid., 1981:32). The adoption of the South to provincial and local administrations. African Constitution Act 1909 was not the end • The constitutional mandate of the three of constitutional reforms. Subsequent to Act spheres of government to render public ser- 1909, the country once again adopted a “new” vices to the local people. Constitution Act (Act 32 of 1961). • The type of power decentralised by the The Act brought significant changes. For national government to lower government example, the position of the governor-general structures. was transformed to that of president, which • A clear distinction between relative and advocated republicanism (Ibid., 1981:38). absolute power is brought to the fore. South Africa became a complete sovereign state but the concept of “distant rule” or 1. SYNOPSIS ON THE SOUTH AFRICAN “remote authority” remained intact even CONSTITUTIONAL DISPENSATION beyond the establishment of the republic (Act It is imperative to provide a brief synopsis of 1961). the several constitutional dispensation and The 1961 Constitution was not without its political arrangements in South Africa since shortcomings – based on racial constitutional 1909. This is the period when the country principles – because the majority of citizens

78 Msaseni were excluded from participating in constitu- But there were two essential conditions or tional negotiations. This exclusion created dis- requirements to PR: a political party must have comfort among the excluded groups, and there- participated in the 1994 general elections and fore the Constitution was declared illegitimate. should obtain a minimum of five per cent of the In a sense, the legitimacy of the 1961 Act was vote. It is worth noting that the GNU was inter- challenged from many fronts. From these chal- im until the Constitutional Assembly – a struc- lenges another constitutional transformation ture which was tasked with the responsibility to was imminent. frame the final constitution – adopted the Henceforth, the South African Constitution Constitution Act 108 of 1996. Act 200 of 1993 Act 110 of 1983 was adopted. The 1983 Act made provision for the GNU to exist for a peri- was a response to the exclusion of the majority od of five years and thereafter it should cease to from contributing constructively to the socio- exist (Constitutional Talks, 1994/5). political and economic transformation of the The GNU comprised seven political parties country. The major change advocated by the that had participated in the 1994 elections. Act was the introduction of a tricameral parlia- Furthermore, the government introduced two mentary system. houses of Parliament, namely, the National Three houses of Parliament were established Assembly and the Senate – the latter was later for the different ethnic groups, namely: the changed to the National Council of Provinces House of Representatives for coloured people, (NCOP). The South African system of govern- the House of Commons for whites and the ment is not different from western democracies, House of Delegates for the Indian population. because its Constitution acknowledges the sep- The constitutional transformation process that aration of powers between the executive, judi- extended from 1909 to 1983 was regarded to be ciary and legislature. It therefore has a strong undemocratic and illegitimate because the triad-politika ensuring checks and balances of process was not representative or inclusive, the functions of each state branch. In terms of hence it was essential for the country to venture the Constitution the president is the head of the to another round of constitutional talks which state, but the Constitution is the supreme law of commenced in 1990 (Marais, 1991:253). the state (Constitution, 1996). The Republic of South Africa had eventually adopted its first democratic Interim Constitu- 2. PROVINCIAL ADMINISTRATIONS tion Act 200 of 1993, after a long history of Before the 1994 general election, South Africa racial segregation and discrimination. The was constituted of four major provinces: the Interim Legislation, 1993 made provision for Cape Province, Natal, Orange Free State and an opportunity for the country to hold its first Transvaal. After the 1994 elections, the country non-racial democratic election in 1994, in was demarcated into nine major provinces, which the majority of South Africans were which incorporated the former “black home- granted an opportunity to exercise their votes lands and self-governing states” to a strong uni- and express their political will for the first time tary and democratic system of government. (Ibid., 1991:253). The jurisdictions of the various provinces are The Independent Electoral Commission delineated in Part 1 of schedule 1 of the (IEC) and international observers declared the Constitution of the Republic of South Africa, 1994 general elections free and fair. Subse- 1993. The legislative authority of a province quent to the general elections, the GNU was only applies within the territorial boundaries of established under the leadership of Mandela, as the province concerned. Each of the nine the first black president. Several political par- provinces is constitutionally obliged to elect its ties that participated in the elections charac- own premier and executive council, which are terised the GNU, and their representation in all responsible for the effective and efficient state apparatus was determined to a large extent smooth running of the provincial administration by the number of votes obtained in the 1994 (Constitution, 1993). elections. The concept of proportional represen- Finally, the provincial Legislative Assembly tation (PR) was advocated as an attempt to is a law-making authority for the province and apply the concept of power sharing among it should not consist of fewer that 30 and not political parties, irrespective of their size. more than 100 members elected in accordance

79 Msaseni with the principle of PR. A provincial legisla- 3. UNITARY VERSUS FEDERAL SYSTEM OF ture is elected for a period of five years (Van GOVERNMENT Der Waldt and Helmbold, 1995:84). The South African government system is fun- However, a provincial legislature cannot act damentally based on the principles of consen- ultra-vires. That is, it should act within the sus and negotiated settlement, seeking agree- ambit of the law. Furthermore, it should func- ment on several contested issues, namely: polit- tion within the constitutional guidelines or ical participation, representation, integration, parameters prescribed by the central govern- good governance, transformation and democra- ment. Provincial laws therefore cannot contra- tisation, as well as many topical or unresolved dict an act of Parliament. The provincial admin- issues that still confront the Mbeki administra- istrations operate in terms of delegated power tion in the 21st century. or authority. All these topical issues are enshrined in the In terms of the national Constitution section Interim Constitution Act 200 of 1993 that was 147, the provincial legislative authority is adopted as a building block to a system of gov- expected to uphold, observe and promote the ernment which the country adopted six years national Constitution (Mckenzie, 2000:14). ago. The 1993 Constitution created a platform The national Constitution makes provision for further deliberations and negotiations on the for the establishment of a provincial constitu- preceding contested issues. The end product of tion which may not be in conflict with an act of such negotiation was the adoption of the final Parliament. As yet, only the Western Cape has Constitution Act 108 of 1996. It has already adopted a provincial constitution. One therefore been alluded to that the final Constitution is wonders as to the effectiveness of provincial regarded by many international constitutional constitutions in relation to the powers of experts as the most liberal constitution in the provinces. As provincial and local government world. spheres do not have an absolute constitutional The aforementioned synopsis can be attrib- mandate or political will, they are therefore uted to a profound assumption. During the for- governed in accordance to the principles pre- mal negotiation that commenced at the begin- scribed by the national Constitution. ning of 1990, a team of experts in constitutional Subsequent to the provision of the establish- matters as well as delegates from the National ment of provincial constitution(s), the Senate Party (NP) government and African National House was abolished and substituted with the Congress (ANC) visited several countries as a NCOP. The latter was created on the assump- conscious effort to compare their constitutions. tion that it would improve coordination of pub- Henceforth, the South African Constitution has lic functions and bring the government closer to both features of a unitary and federal system of the people. The NCOP consists of ten elected government (Act 108, 1996). But it should be members from each province and the election stressed that the final Constitution has estab- of provincial delegates is based on PR (Ibid., lished prominent unitary powers vested to the 2000:7&14). central government. Furthermore, it also creat- It should be noted that the NCOP has been ed two other spheres of government – provin- criticised for being a mere rubber stamp of the cial and local government. In terms of chapter National Assembly. Put differently, it has six of the Constitution, which deals with become a “gate keeper” or merely an extension provincial matters and chapter seven which of central government’s constitutional obliga- deals with local government issues, the latter tions. two spheres of government are supposedly Complementary to this criticism, the autonomous or independent entities. Constitution has been amended to give execu- The breakaway from the hierarchical relative powers to the Members of the Executive tionship between the three spheres was based Council (MECs) at provincial spheres. on levels or tiers of government, because they For instance, MECs have the authority to hire were not regarded as a self-reliant administra- and fire public employees in their respective tion in their own right – they operated within departments. This might be a stepping-stone to the national broad policy directives formulated a spoil system practised in the American feder- at the central government sphere. The paradigm al government (Business Day, 2000). shift from levels to the new functional concept

80 Msaseni of spheres, denotes that the three spheres of Constitution and it cannot be changed government are equal partners in terms of the overnight, unless certain constitutional clauses Constitution (Ibid., 1995:2). are changed. Provincial and local spheres there- Therefore, neither the central sphere nor the fore cannot even begin to advocate or open dis- provincial government sphere should interfere cussions on financial powers if the debate on in the domestic affairs of the local government political power has not been resolved (Pierre, sphere. The three spheres in the real conceptual 1995:215). framework of autonomy, have equal status so Central government is reluctant to yield far as their administration is concerned. But one power to other spheres of government without wonders how much autonomy or power has it being in control of such spheres. The stance been devolved to local and provincial spheres, taken by the national government to centralise because the Constitution is silent on the issue of its power can be attributed to several factors: power distribution. There has been minimum the legacy of the previous government, deeply devolution of power to both provincial and rooted divisions within government structures local government spheres. and political and socio-economic considera- Prominent scholars in the fields of Public tions (Ibid., 1995:215). Administration and Management as well as Concerning the relationship between the Political Studies have made an interesting three spheres of government, metaphorically observation that provincial and local govern- speaking, one sphere cannot serve two masters ment spheres in terms of the South African con- at the same time, and therefore it should stitutional relationship, have what is referred to become responsive to the public and be accord- as relative political power as opposed to ed the autonomy it deserves to take policy deci- absolute power. The former entails that the two sions on pertinent issues (Idem, 1995:216). spheres of government cannot take decision(s) It has already been said that the 1909 Act on a policy issue that will affect the country. made provision for the establishment of four With relative political power the central gov- former colonies, which later became provinces. ernment still has some control over provincial That system of provincial administration or local government administrations. In terms remained basically the same except with limit- of relative political power, the central governed powers devolved by the central government. ment has the right to intervene, particularly if With the adoption of the Constitution Act 108 provincial and local administrations are dys- of 1996, both local and provincial spheres functional and do not provide the required underwent drastic transformation, for example, capacity. There have been several instances the provincial administration was granted more whereby the central government was forced to constitutional obligations and competencies intervene in various levels of administration at than was the case with the previous constitu- provincial and local level. tional dispensation. The concept of absolute political autonomy But the constitutional relationship between as espoused by many is a direct contrast to rela- central and provincial government is fluid. tive political power (Ibid., 1995:3). Absolute Although the national Constitution sets guide- political power means complete or total control lines and a list of provincial powers or compe- of local administration, without interference by tencies, there is lack of absolute clarity as to the central government. With the foregoing where the powers and functions of national synopsis of the constitutional relationship government stop and where those of provinces between the three spheres of government, one begin (World Bank Report, 1999/2000:6). can infer that the relationship is that of central This lack of a clear mandate has culminated political control with minimum discretionary in litigation or legal wrangling in which provin- powers granted to provincial and local spheres. cial authorities have taken up the matter with The assumption of a constitutional relation- the Constitutional Court to resolve the impasse. ship can be articulated from two essential theo- It should be indicated that the Constitutional ries, namely, political and financial relation- Court has been the upholder of the rights of the ships between the three spheres of government. provinces and in its certification of the new The debate on the two theories is a daunting Constitution it made it clear that provinces are and unfolding one as it is embedded in the here to stay (Ibid., 2000:7).

81 Msaseni

4. RETHINKING PROVINCIAL GOVERNMENT ernment to override their decisions. But con- Public institutions around the world seek ceding power to local authorities is no guaran- greater self-determination or self-reliance in tee that local needs and interests would be order to influence central decisions. This reflected in local politics (Idem., 1999/2000: demand has been conceptualised as localisation 112). or, put simply, decentralisation. Approximately Elcock summed up the aforementioned bene- 95% of democracies have established sub- fits of decentralisation in terms of a mutual national governments where devolution of relationship between the three spheres of gov- political, fiscal and administrative power to ernment and the purpose of public organisa- spheres of government has been the order of the tions: day. Decentralisation of such powers is, howev- “…(t)o develop a new kind of organisation- er, often haphazardly executed and decision al culture which is capable of being more makers fail to fully comprehend the dynamic open, democratic and self critical and exegesis of the transformation process (Idem, organisational culture which is anxious to 1999/2000:107). learn and eager to appraise its own perfor- Furthermore, decentralisation models are fre- mance. Such an organisation is very differ- quently exported from one country to another ent from the service provision we have without due regard to local circumstances, labelled bureaucratic paternalism” (Elcock, which are unique and peculiar. The phenome- 1991:39). non of decentralisation is neither good nor bad, rather it is a means to an end, often imposed by 6. DECENTRALISATION AND DEVOLUTION OF political and socio-economic realities. The pos- POWERS itive aspects of decentralisation are immense: it A fixed and essential relationship exists improves efficiency, responsiveness of govern- between observation as a mode of knowledge ment to local demands and it also accommo- and decentralisation. The concept decentralisa- dates divergent political forces to have syner- tion is indeed a misnomer – it appears to have gist mutual relationships to accomplish the pre- been derived from centralisation. Furthermore, determined government objectives. On the a decentralised constitutional system would other hand, negative aspects of abortive decen- indeed be decentralised in an original manner – tralisation impose threats to macroeconomic it would be decentralised simply because it development and growth, as well as political consists of autonomous entities. This type of stability and disrupt service delivery, perfor- independence is authentic, it is not derived mance and equity (Ibid., 1999/2000:111). from the centre or unity as is the case with South African constitutional relationships 5. BENEFITS OF DECENTRALISATION between the three spheres of government The primary purpose of decentralisation is to (Marais, 1991 5). bring together opposition parties into a formal According to the World Bank Development rule-bound bargaining process. It also unites a Report 1999/2000, decentralisation means the deeply divided country, especially along racial transfer of political, fiscal and administrative and ethnic lines. Thus decentralisation illus- powers to subnational units of government. The trates a concrete mechanism to national recon- report states further that the central government ciliation and unity. A classic argument in sup- has not decentralised unless the country encour- port of decentralisation is that it increases ages “autonomous elected local authorities effective and responsive government because capable of taking binding decisions in at least locally elected representatives know their elec- some policy area”. torates better than the central government. It Decentralisation could therefore bring togeth- goes without saying that geographical proximi- er existing local authorities or expand their ty makes it easier for local people to hold polit- resources and responsibilities. In short, decen- ical representatives accountable for their per- tralisation shifts the focus of accountability formance (Smith, 1991:1-2). from central government to elected local con- What provincial administrations can achieve stituencies. depends really on the resources and responsibil- In this respect decentralisation in the South ities granted, and on the power of central gov- African context will leave aside a fluid political

82 Msaseni discourse that surrounds the phenomenon and which enhance meaningful participation and other measures that reduce political autonomy the contribution of all South Africans to a of provincial and local government spheres and coherent transformation and democratisation of the relationships between bureaucracy and soci- structures of governance. ety. Decentralisation is therefore both a cause The system of government in South Africa is and effect of the changing relationship between therefore influenced by and large by three three spheres of government (Idem, 1999/ prominent constitutional developments that 2000). shape the nature and extent of powers devolved Elcock observed that decentralisation and to provincial administrations by the central areas of management embrace a wide spectrum government sphere. The South African system of mutual relationships which public institu- is regarded as semi-federal with strong central tions have developed within their jurisdictions powers vested in the National Assembly. The to make public services more accessible and Constitution itself is a hybrid type, that is, it has affordable to local inhabitants, in order to prominent characteristics of both federalism enhance responsiveness to their needs and and unionism. The Constitutional relationship wants. establishes guiding principles for effective and The spectrum of mutual relationship, which efficient execution of public policies by state Elcock talks about, presupposes to encourage departments or institutions that are responsible concerted and collaborative efforts to all stake- for the rendering of services. From a South holders responsible for service delivery. He fur- African perspective, Constitution Act 108 of ther accentuates his interpretation of mutual 1996 is the supreme law for the state. The relationship by introducing the concept of cor- adoption of the Interim Constitution Act 108 porate management “from below” as opposed resulted in the introduction of the GNU, based to “from above. The corporate management on the principle of “sharing of power” or “joint concept encourages cross-departmental work- exercising of power”. ing relations among relatively junior staff, what In the final analysis, the constitutional rela- Elcock called “street bureaucrats” (Ibid., 1991: tionship between the three spheres of govern- 56). ment is more or less relative as opposed to absolute socio-political and economic relations. CONCLUSION Furthermore, the Constitution is not elucidative The constitutional relationship in South Africa in respect of how much power should be between the three spheres of government devolved to both provincial and local spheres emanates from three successive comparative of government. By the latter point, it is constitutional dispensations. The three constitu- assumed that it would create mistrust between tional dispensations are compared in terms of the three spheres of government as far as socio-political, economic and cultural factors, decentralisation of powers are concerned.

83 Msaseni

REFERENCES

BUSINESS DAY. 2000. Thursday, August 10, ROSENBLOM, D.H. GOLDMAN, D.D. AND 2000. INGRAHAM, P.W. 1994. Contemporary Public THE WORLD BANK. 1999. Entering the 21st Administration. New York: McGraw-Hill, Century – World Development Report Inc. 1999/2000. The World Bank: Oxford SMITH, B. 1991. Progress in Development University Press. Administration: Selected Papers from Public ELCOCK, H. 1991. Change and Decay? Public Administration and Development. Administration in the 1990s. New York: Chichester: John Wiley and Son. Longman Group Ltd. THE CONSTITUTION OF THE REPUBLIC OF SOUTH MARAIS. D. AND RIEKERK. D. 1981. Constitu- AFRICA ACT 108 OF 1996. tional Development of South Africa. South THE INTERIM CONSTITUTION OF THE REPUBLIC OF Africa: Macmillan South Africa (Pty) Ltd. SOUTH AFRICA ACT 200 OF 1993. MARAIS, D. 1991. South Africa: Constitutional THE CONSTITUTION OF THE UNION OF SOUTH Development – A Multi-Disciplinary AFRICA, ACT 1909. Approach. South Africa: Southern Book VAN DER WALDT, G. AND HELMBOLD, R. 1995. Publishers (Pty) Ltd.. The Constitution and the New Public MCKENZIE, K. 2000. Provincial Pocketbook – Administration. Juta & Co. Ltd. 1995. Pims 2000 Guide to Politics in the Province. Cape Town: Idasa.

84 Transformational Challenges in Provincial Administration

Masilo Mabeta

INTRODUCTION trespass on central government’s sphere of leg- Codesa’s constitutional debates in the early islation and governance. The increased mea- 1990s centred on whether South Africa should sure of participation should under normal cir- have a unitary or federal form of government. cumstances facilitate better delivery of ser- The advocates of a unitary state were probably vices. concerned about the fragmentation of our soci- South Africa has been characterised by ety into racial and ethnic entities, which had uneven development – in a typical colonial been characterised and formed the basis of development sense – where a modern infra- apartheid’s separate development governance. structure and developed first world economy They would naturally see the advent of a feder- exist alongside with an Iron Age substructure al form of government as one that perpetuates a of underdevelopment. Attempts by the fractured socio-political order. apartheid regime to reverse this trend by creat- Federalists had always argued against the ing development points and providing incen- centralisation of power in a central government tives to attract industries to rural communities, and the diminishing of political responsibility had minimal success because these measures at regional and local level because this had all were based on an economy that had relied on the ingredients to erode democratic participa- the migratory cheap labour system – which tion at local level, leading to the centralisation drew that labour from rural labour reserves. of power in the hands of the executive at cen- There was little incentive for major industries tral government level. to relocate to rural areas where there was no This view is reinforced by the authoritarian infrastructure for development. nature of the apartheid state that was being Our provincial government under a democra- negotiated out of power. The apartheid govern- tic government has the mammoth task of cor- ment was one of the worst manifestations of a recting that historical imbalance. At present, unitary state. It does not follow, however, that there is little evidence that provincial govern- a unitary form of government need necessarily ment is tackling this problem, nor is there any be undemocratic. real understanding of the nature of the problem For the purposes of this discussion we now or any real commitment from central govern- look at the form of provincial government ment to see development and delivery of ser- established under South Africa’s Constitution. vices at provincial and local government level. It is safe to say that this country’s constitution- However, a constitutional framework exists al structure is a compromise between cen- for government to assert itself at provincial tralised and federal government. Our provincial level to ensure that budgets are allocated to it structures enjoy a measure of autonomy. This to improve roads, provide appropriate and can be seen by the existence of provincial leg- quality education, adequate health services as islatures that have a mandate to matters of a well as to see that social benefits are properly provincial nature, where these matters do not utilised for that purpose. Good performance by

85 Mabeta provincial government would ensure an em- waters of neglect, impoverishment and unem- powering environment for local government ployment. structures to whom the responsibility for ser- In the housing sector these is a clear unequal vice delivery at grassroots level would be fil- distribution of resources because the housing tered. policy and its subsidy schemes focus on urban The perception that the Bantustan apartheid dwellers and excludes other taxpayers who are structure did more for the people on the ground the rural dwellers. in the provinces is a serious indictment of the Although we appreciate that annexed rural performance of central and provincial govern- areas by urban municipalities will benefit in the ment. The deterioration of health and social ser- short-term, it must be pointed out that the vices and the collapse of the education system national government has no long-term national testify to uncaring provincial governments that strategy for development in rural areas. The are tarnished by corruption, nepotism and inef- present approach creates the impression that ficiency. The situation is aggravated by ram- unannexed rural communities will not benefit pant unemployment resulting from economic from local government resource allocation and stagnation. service deliveries. The truth of the matter is, however, that people in rural communities need 1. GOOD, CLEAN GOVERNANCE water, roads, sewerage systems, electricity, etc. The core issue in United Democratic Government has not been able to provide Movement (UDM) policy on provincial admin- answers to all the questions arising from the istration and local government is that of good proposed annexation of rural communities to and clean governance. To realise this objective the municipalities to which they are adjacent. our society must address the issue that centres The questions are: on the power of provinces and their capacity to • Will government provide the necessary infra- function in a manner that is efficient and structure in the annexed territories, which accountable. will be comparable to the existing one in the The current structure of the provincial admin- municipal area to which they are annexed? istrations and their relationship with central • How does government address the perception government militate against the creation of effi- of the people in the proposed annexed territo- cient and accountable management systems. ries that they will be used to beef up the ail- The prevalent culture in the present administra- ing finances of the villages’ boards which are tions is that of inefficiency and corruption, responsible for the general decline and rot in which emanates from poor training, lack of these small, rural towns? adequate resources, institutional fragility, dupli- • How does government respond, on the other cation of services, conflicting power between hand, to the fears of the urban municipal provincial and central government, partisan ori- dwellers, who believe that they will be taxed entation of managers and the total neglect of to provide financial resources for the upgrad- codes of conduct in various aspects of service ing of annexed undeveloped territories? delivery administrations. All these questions give credence to the con- This is very important because institutional tention that central government makes far- chaos and non-accountability in various areas reaching decisions unilaterally in the corridors of the public sector derives from the subordina- of power without proper consultation with rele- tion of standard administrative norms and prac- vant stakeholders at the lowest levels of civic tices to the interests served by a corrupt and society. The poor continue to suffer in poverty unofficial network of operations, at the expense and general neglect by a government that has of ordinary citizens whose interests are neglect- come to be seen as uncaring and non-respon- ed and disregarded. sive to the needs of those who put it in power. The distribution of resources between the urban and rural communities is inequitable. The 2. TRANSFORMATIONAL PROBLEMS FACING government still seems to adhere to apartheid’s PROVINCIAL ADMINISTRATIONS IN uneven developmental patterns which concen- SOUTH AFRICA trated resources in urban communities while South Africa has a history of racial division and relegating rural areas to the economic back serious inequalities that coincides with these

86 Mabeta racial divisions. The past policies have exploit- 3. SPECIFIC TRANSFORMATIONAL INNOVATIONS ed tribal and ethnic diversity to reinforce the Specific transformational innovations need to racial policies and the apartheid ground plan. be implemented. They are as follows: South Africa is a society with diverse groups • Decentralisation of central government so and corresponding interests and concerns. that more power is given to the provinces. These cannot be wished away by the Constitut- • Provinces should develop their own sources ion that highlights non-racialism and unity. of revenue through taxation. Antagonism and mutual suspicion will continue • Taxes should be centralised or decentralised to mar our society for some time yet. We need in line with subsidiary principles, effective a government that will seriously address the execution and management capacity. negative impact of these divisions. This needs • Viable local government infrastructures and to be done by pursuing policies that begin to local institutions should be established. erode these divisions rather than reinforce them • Capacity building points for local people by legitimising them. should be established. It is not within the scope of this paper to • Soft economic borders should be reconciled expand on all the difficult issues facing the with hard political borders based on what is transformation agenda in our provincial admin- economically and socially viable. istration. However, two critical problems, often • National consultation should take place deal- overlooked if not reluctantly acknowledged, are ing with the desirability of fewer provinces worth mentioning. based on a costed norms approach in which First, is the difficulty in dismantling and the distribution of resources is based on reassembling the various apartheid era, local finances available for basic social needs. government structures, so meticulously crafted through the Group Areas Act and its numerous CONCLUSION enabling regulations. Second, is the failure of South Africa is a highly heterogeneous society. our legislation to take into account such factors Provincial strategies for administration and as financial constraints, party political influ- development should therefore mobilise local ence, intergovernmental relations and tradition- human and institutional resources in an integra- al institutions in the establishment of spheres of tive manner. As the local focus of administra- authority between central and provincial gov- tion and development is strengthened, so will ernments. The result of this tendency is the the gap be closed between rural and urban cen- demise of meaningful legislative and executive tres, the rich and the poor, the landed and the autonomy which provinces or regions would landless. This will be done through the full par- require in order to satisfy the most critical and ticipation of local stakeholders in what are local immediate needs of the people in their jurisdic- issues in the first place. Such an approach will tions. make a meaningful contribution to national The way in which power is defined in both unity and integration. This will reduce the ten- the Interim and final constitutions – giving both sion between democratic expectations of the levels legislative jurisdiction over the same majority of citizens and politico-administrative functions – not only causes confusion as to the control of state organs at both national and accountable level of government responsibility provincial levels. Namibia and Botswana are for a particular function, it also encourages the appropriate African examples in this respect. solving of disputes by means of intergovern- The necessary formula for these transforma- mental agreements, which in turn could reduce tive innovations is, in short, strong provincial transparency and increase public uncertainty as governments with meaningful powers and ade- to the allocation of particular functions. quate financial resource bases.

87 The IFP Perspective on Provincial Government

Narend Singh

INTRODUCTION while black people were blatantly barred from I welcome the opportunity to participate in this entering white areas after dark, without a per- international conference on provincial govern- mit to do so. ment, knowing that in South Africa there exists Apartheid was characterised by self-adminis- an exceptional case study for the ever present tration and different governments for each sub- conflict between the provinces and the national ject matter. With the living memory of this ter- government around the issue of decentralisa- rible abuse of local autonomy for uses of racial tion and the devolution of powers. The Inkatha oppression, when the question was posed of Freedom Party (IFP) strongly believes in, and moving beyond apartheid to enable democracy constantly advocates, greater local autonomy. to rule South Africa, the pendulum swung in South Africa has been the battleground of the opposite direction. The perception was that centralistic autonomy for almost a century. local autonomy was bad and centralism good. Since before the Act of Union, the forces of At the outset, the African National Congress centralisation have fought those of local auton- (ANC) was the dominating factor in the libera- omy in an ongoing battle, the outcome of tion movement. Both the ANC and the Pan which will determine the future success of our Africanist Congress (PAC) operated under the country. In this context, diverse political agen- suggestions of the communist and Marxist das have assumed various sides of this conflict ideology of the time and were trapped in the throughout the different stages of history. One conflict and dynamics of the Cold War. Both may trace the origins of this conflict to before subscribed to a centralistic model. The notion 1910, and follow its path running parallel to the was that it was necessary to redress the legacy development of South Africa. of the past, which was one of perverted local Apartheid was a complex system of constitu- autonomy. It was believed that this could only tional engineering, using a carefully crafted be done by virtue of a strong central govern- and specifically designed local autonomy for ment. The other consideration was that, obvi- the purposes of racial oppression. The main ously, much had to be done in order to achieve components of this system were territorial seg- the call for social justice, which remains the regation of populations, the division of the pop- unfinished agenda of South Africa after libera- ulation into racial groups, segregation by terri- tion, and that this too could only be done by a tory and the prohibition of movement from one strong government. part of the territory to another without the nec- The premise was that we need to have a essary authorisation. The apartheid system was strong government to perform a monumental formally equal for all, but substantially unequal job. The perception persisted that a strong gov- due to the obvious and strictly maintained dif- ernment necessarily meant a central govern- ferences of affluence and economic power. ment. Indeed, it was unquestioningly believed This divide would make it unlikely for white that the stronger the central government, the people to want to settle in black townships, greater the possibility of successfully complet-

89 Singh ing the daunting task confronting us. That also based on the notion of subsidiarity, so as to which the IFP always knew, was finally proven ensure the pre-eminence of civil society over only once confronted with the real issues. Since government. Civil society, including families, 1972, the leader of the IFP, Prince Mangosuthu traditional communities, trade unions, universi- Buthelezi, put forward his vision for federalism ties and professional associations should be and pluralism which contradicted the estab- empowered to exercise individual autonomy lished beliefs. Dr Buthelezi proposed that in and to regulate their own interests whenever order to fulfil such a task as faced South Africa, there is no compelling reason for government one would need to rely on the forces and to interfere. strength of all. International mediation was likewise concerned with the form of state. The dominating 1. DEVOLUTION OF POWER AND LOCAL question on the table was whether South Africa AUTONOMY should be a unitary, a regional or a federal The IFP believes that only the devolution of state, and the degree of autonomy to be given to powers and local autonomy could muster the provinces. The form of state is defined not only forces of every South African towards a collec- by the existence of provinces, nor by their type, tive effort of changing society. Society would but also particularly by the level of autonomy need to be changed from the bottom up, and not bestowed upon each province. We see federal- from the top down. We believe in empowering ism as the fastest way of building capacity at the lower levels of government and in devolu- the lower level of government to enhance deliv- tion of powers. We are not interested in talking ery, reconstruction and development. We also down to the people, but are committed to understand the dangers of a centralisation of enabling the people to speak up and make power and advocate devolution of powers to themselves heard, which we believe can only the provincial and local level. After years of be done by allowing the people in the province oppression, we seek to place the power to gov- to determine how the province should be ern as close to the people as possible. Genuine administered. This system would encourage democracy would require a federal system. policy differentiation and competition among There is no point in bestowing powers when provinces and would be best suited to serving provinces remain under the constant control of the needs of their citizens. Such an approach “Big Brother” and lack the autonomy to exer- would maximise our capacity. The IFP provid- cise those powers. The end result is a system ed this input in the negotiation process. In ret- which has been denounced both by the Premier rospect it is clear that the negotiation process of KwaZulu-Natal (KZN) and by the leader of really concerned the form of state. This the IFP, who now sits in government. remained the fundamental issue which set the The present system, developing out of the ANC and the IFP apart, to the point of almost established and misguided belief in a centralist collapsing negotiations. The impending col- government, has been denounced as a system lapse was averted through international media- which is neither fish nor fowl. It has all the tion at the last moment, and by the promise that costs of a federal system, with few of its bene- international mediation would carry over after fits. The IFP has called for the inadequacies of the 1994 elections. this system to be overcome, posing the chal- Devolution of power, federalism and policy lenge of either abolishing provinces or making differentiation leads to healthy competition, them work. Provinces have become a section in which can and should develop among provinces a conveyor belt which emanates from the centre on how to best serve the needs of their respec- towards the periphery. There is unity of policy tive citizens. Provinces should pursue their own formulation, unity of legislation and unity of path towards institutional excellence in an action. effort which motivates them to excel, rather What were originally the minimum standards than assuming the present uniformity as the in the Constitution that made provision for min- single yard-stick upon which performance is imum standards across the territory, have measured. become the only standards which govern all the In addition, the IFP favours a justiciable matters of provincial competence, as set out in divide between government and civil society, schedules 4 and 5 of the Constitution.

90 Singh

2. PROVINCIAL COMPETENCE have effectively become implementers of poli- Schedule 4 of the Constitution lists areas where cies developed at the central level. They are lit- provinces have concurrent legislative compe- tle more than administrators. tence with the central government, while sched- Furthermore, the eradication of persistent ule 5 lists areas which are exclusive compe- poverty, and the reduction of the extreme tences of provinces. These latter matters of inequalities of the apartheid era, remain the exclusive competence are quite marginal and IFP’s fundamental challenge and the core for purposes of our discussions it may suffice to objective of the overall policy for reconstruc- focus on those functional areas in which the tion and development. Sound governance and legislative powers of provinces and the national decentralised decision making and management government are concurrent. have been recognised as being essential for effective and accountable delivery of essential 2.1 Functional areas public services, promoting partnerships for Some of the most important functional areas local empowerment and local economic devel- are quite broad and include: opment. Racial divisions were maintained at all • agriculture levels of government in the past, and were • airports (international and national) reflected in vast inequities in service delivery • consumer protection and access to opportunities for development. • cultural matters These new structures are faced with huge • disaster management challenges, including capacity building, trans- • education at all levels (excluding tertiary formation, delivery and consolidation of demo- education) cratic forms of government. The decentralisa- • environment tion to provincial government of the delivery • health services responsibility for the bulk of priority services, • housing is the key to translating policies for poverty • industrial promotion eradication and inequality reduction into specif- • language policy ic action programmes. • libraries In spite of their administrative nature, • museums provinces have established premiers and a leg- • nature conservation islature which is expensive and cumbersome. In • population development the end, the acid test of what a province does • provincial public enterprises and how much it produces is in its legislation. • public transport Considering the past six years and comparing • regional planning and development legislation on so-called provincial matters • tourism passed at national level with that passed by • trade provinces, it is not difficult to determine that • welfare services. basically all legislation is national and In spite of the constitutional provisions, these provinces have failed to perform. The question listed functional areas of provincial competence I wish to put forward is one we are asking our- are in fact regulated by national legislation and selves in many circles of our provinces: What national policies alone. National legislation went wrong? In answering this question, we controls housing and education, which is the will expose the lesson which must be learned same across the board whether in KZN or the from South Africa’s experience. Western Cape or the Northern Cape. Even though people speak different languages and 3. WHAT WENT WRONG? have different needs, cultures and aspirations, In South Africa, we have adopted a notion of there is no space for policy differentiation. full concurrent legislative powers. The powers There is likewise no space for policies to test of provinces and of the national government in and attempt different ideas or different models, matters of provincial competence are equal. to discover what works better. Similarly, there Both have the full measure of legislative pow- is no space for provinces to compete with one ers. It was understood that provincial powers another on how best to serve the interests of the would overcome national powers, except where country and their own constituencies. Provinces an override could be invoked. In the absence of

91 Singh an override, the provincial powers would pre- could develop our own action at a provincial vail. Instances of overrides were set down in level. An identical problem developed around the Constitution, but are so broad, vague and the National Council of Provinces (NCOP). generalised that no one could definitively state The NCOP consists of 90 members, each drawn where and when they would apply. The end from and representing the nine provincial legis- result has been that central government has leg- latures. Members of the NCOP participate in islated on everything, and provincial govern- the formulation and adoption of laws of the ment on almost nothing. national government in respect of provincial It is significant that after almost six years, in and other matters. In respect of provincial mat- spite of our having had an enormous amount of ters, they naturally have greater influence. Bills constitutional litigation on almost anything and affecting provinces are regulated by section 76 everything, not one single case has been of the Constitution, while other matters are reg- brought before the Constitutional Court on the ulated by section 75. adjudication of overrides. This would seem to Each delegation from each of the provinces indicate that there has been no conflict between consists of ten members, five of which are per- national and provincial legislation, in spite of manent and five are selected by the provincial the fact that this should have been the case. It legislature on an ad hoc basis. Depending on may be seen, however, that full concurrent whether it is a provincial or non-provincial powers in the Constitution failed to create a matter, the NCOP operates on the basis of man- conflict simply because provinces are not legis- dates it receives from the provincial legislature. lating. The lesson that emerges can be captured Effectively, the provincial legislature spends in the comment of a Constitutional Court judge most of its time involved in the adoption of leg- who, when looking at the system of full concur- islation not within its precincts, but rather at a rence, likened it to forcing the lamb to lie national level in Cape Town. Provinces are beside the lion. required to prepare a mandate and send dele- It is true that cooperative governance as gates across the country with the purpose of shaped in our Constitution is, to a certain holding lengthy discussions. The focus of the extent, the lamb being forced to lie beside the provincial legislature is that of contributing to lion. The South African Constitution requires the formulation of national legislation which provinces to work very closely with the central can only apply uniformly across the country. government. Provinces cannot move unless Once again, a conveyor belt system is in place central government consents, and vice versa. where little is developed at the bottom for the But we are not equal. The centre of government bottom. is provided with a far greater capacity. More- The entire system demands reconsideration. I over, a mechanism has been set in place to believe that South Africa is an exceptional ensure that cooperative governance is exercised country. For more than 100 years it has excell- throughout. As the provincial Minister of ed in constitutional engineering. However, in Agriculture, I am called along with my col- the past, such engineering has been applied for leagues into a joint meeting of Ministers and purposes of oppression. Today, constitutional Members of the Executive Council (Minmec). engineering must be applied for the full libera- Provincial ministers, such as myself, are tion of our people. We believe that constitution- expected to meet with respective provincial and making must continue. An awareness of this national colleagues and to discuss any policy need exists because our Constitution has a matter. Usually the agenda is held by the cen- peculiarity which is not found in many other tral government. constitutions. In South Africa, we have the con- Through the Minmec, Ministers and stitutional obligation to review the Constitution Members of the Executive Council (MECs) annually, to which end a Constitutional Review create an input for the formulation of national Committee has been established by the policy. Such input is, however, not always Constitution itself. taken aboard. Nevertheless, the Minmec creates The Constitutional Review Committee has an input which travels up toward the central not met as frequently as required, but is never- government, rather than enabling provinces to theless operating and deliberating. It is in this receive capacity and ideas through which we forum that the issue of the form of state contin-

92 Singh ues to be tabled and debated. There remain out- of municipalities, which is determined at the standing amendments designed to rethink our central level, although this is indeed what we system of institutional government across the are doing. issue of local autonomy and decentralisation, The possibility provided for in the Interim many of which the IFP has promoted. There is Constitution – which is no longer given to a further problem in our system of government, provinces – is for provinces to design their own which is common to many other countries but model of local government to accommodate our is particularly sensitive in our own, given the diversity. In the province of KZN, one of the features of centralisation which I described ear- most relevant issues is the existence of a strong lier. This is the problem of unfunded mandates. and very valuable group of traditional leaders, who are important not only because of the posi- 4. UNFUNDED MANDATES tion of relevance they exercise, but because Unable to determine for ourselves what is they reflect a specific model of societal organi- required, and unable to pursue such require- sation. They are the symbol of communities ments, provinces are forced to pursue the goals which operate on the basis of communal land of central government. Furthermore, this is to and a distinct legal system, and which share be done with the money allocated for that pur- services. pose. Thus the process of determining needs Our commitment is to enable these communi- and that of allocating money to fulfil them ties to take full advantage of the developmental somehow lacks a common policy framework opportunities made available by our govern- and a common decision-making centre. ment, and transition them toward modernity Funding is received as ex post facto, as a distri- and greater levels of progress. However, we bution of what is available through the constitu- believe that they should be entitled to do so tional mechanism of the fiscal and financial while respecting the features of their estab- commission determining the share of national lished societal organisation. We wish to trans- revenues to be given to provinces. In basic form traditional communities into modernity, terms, this commission takes the entire cake not out of existence. We believe that they are and determines what slice of the cake needs to capable of becoming part of an advanced soci- go to provinces. ety while preserving some of the communalistic From this point, provinces have the power features of their societal organisation. and discretion to allocate such funding amongst Obviously, this cannot be done unless we their functions and various mandates, but it is adjust the present model of local governance an ex post arrangement which does not feature and provide a more relevant role for traditional in the determination of obligations and respon- leadership. Under the present legislation, how- sibilities. Obligations and responsibilities are ever, we are bound by a unified model which determined centrally through the mandates was never designed to take traditional leader- given to provinces. Hence, the problem of ship into account. unfunded mandates becomes unusually promi- The IFP strongly believes in the recognition nent. of the autonomy of traditional communities, and the protection of traditional leadership 5. TRADITIONAL COMMUNITIES within the overall system of pluralism. In respect of local government, there is a per- Traditional communities should be recog- ception which I, for one, share: that the pendu- nised as a form of self-governance at communi- lum has swung from one extreme to the other in ty level which consequently entitles participa- a country which has the most diverse population in other levels of government. In local tion and variety of forms of societal organisa- government there should be ex officio positions tion. South Africa is home to traditional com- for traditional leaders in the category ‘‘C’’ munities, which exist and operate on the basis municipal councils. In the provincial govern- of communal principles and customary law, but ment, the House of Traditional Leaders should also to highly industrialised segments of urban advise on all bills placed before the legislature, areas. Given this context, it seems almost and exercise executive functions with respect to absurd that we could impose a uniform system traditional communities. At a national govern- of local government, based on a unified notion ment level the IFP favours a Council of Tradi-

93 Singh tional Leaders (COTL) which would relate to (ii) maintain economic unity; the Houses in much the same way as the NCOP (iii) maintain national security; or does with respect to the provincial legislatures. (iv) preventing that province from tak- The COTL should advise on all bills passed ing unreasonable action that is prejudi- before Parliament, and should work closely cial to the interests of another province with the NCOP. or to the country as a whole. By accommodating the role of traditional (2) If the national executive intervenes in a communities within the system of governance, province in terms of subsection (1)(b) – there are certain advantages to be gained. For (a) notice of the intervention must be instance, the delivery of housing could be tabled in the National Council of speeded up by delegating traditional authorities Provinces within 14 days of its first sit- to address needs in their own communal prop- ting after the intervention began; erty structures. (b) the intervention must end unless it is The accountability of traditional leaders to approved by the Council within 30 days their communities can be preserved by limiting of its first sitting after the intervention central government remuneration. began; and This one example could be duplicated in (c) the Council must review the interven- respect of many other contexts throughout tion regularly and make any appropriate South Africa. Cognisant of these truths, one of recommendations to the national execu- the messages I would wish to convey is that, if tive. attention must be given in terms of maximising (3) National legislation may regulate the the benefits of local governance, it must be process established by this section.” done at the local government level. Local gov- Naturally, this section will rarely be invoked. ernment must be designed by local government. Yet it plays in the subconscious mind of provinces. Indeed, this is the chilling effect that 6. NATIONAL SUPERVISION OF PROVINCIAL a section of this nature may have. We are aware ADMINISTRATION of how often such a section has been applied in In addition to the centralised system of powers, a country such as India, where it had a tremen- our institutional system of government main- dous affect on the development of India’s local tains some convincing means of deterring local autonomy. Moreover, there are similar provi- autonomy. For instance, Section 100 of the sions in respect of local government which Constitution enables central government to enable the central government – and, at times, intervene in the exercise of provincial functions the provincial government – to intervene if whenever it feels that a task is not being ade- there is a concern. quately fulfilled. Furthermore, over and above what is already Section 100 reads: expressed in the Constitution, the system is (1) “When a province cannot or does not becoming increasingly more centralised and the fulfil an executive obligation in terms of presence of the central government is increas- legislation or the Constitution, the national ingly felt by virtue of ad hoc arrangements executive may intervene by taking any established within the system of so-called coop- appropriate steps to ensure fulfilment of that erative governance. In this respect, reference obligation, including – must be made to the President’s Coordinating (a) “issuing a directive to the provincial Council (PCC) in which the President has con- executive, describing the extent of the vened all premiers of provinces. In constitu- failure to fulfil its obligations and stating tional terms, premiers are accountable to the any steps required to meet its obligations; members of our Parliament and to the people. and They are not accountable to the President. (b) assuming responsibility for the rele- But, effectively, through the PCC the percep- vant obligation in that province to the tion is created that premiers are indeed account- extent necessary to – able to the President. The premiers of our (i) maintain essential national standards provinces are convened by the President, who or meet established minimum standards asks questions and creates situations where for the rendering of a service; each premier feels accountable to the President

94 Singh and his own colleagues. Once again, this is an than national level. In a federal system, even element of distortion of the system which runs centralised bargaining often devolves down to deep in the collective institutional psyche. regional forums. The PSC cannot assume the One may also mention the relationship which role of representing the employer while the has developed between the provincial govern- biggest employers, i.e. the provinces, are not ment administration and national administra- included in the collective bargaining process. tion. One of the most peculiar aspects of the Labour laws should be administered by the var- South African system, which is entirely ious provincial ministers and departments of unknown in most other federal systems, is that labour. we have a unified civil service. In terms of the In keeping with the IFP federal approach, the Constitution, the civil service employed in provision and management of education should provinces is part of the national civil service, be a provincial competence. All schools and with the consequence that the central govern- colleges should be regulated in terms of provin- ment has control over how our civil service is cial legislation. The role of the national organised, the conditions of employment, struc- Department of Education should be to monitor ture, positions and organisation. A centralised compliance with essential norms and standards. civil service commission has been established Teachers should be employed by provincial which creates an additional element of continu- administrations on the recommendations of ity from the provincial civil service to the principals and governing bodies. national civil service. Apart from legislative competence over pri- This makes it increasingly difficult for some- mary and secondary schools, the IFP takes the one in my position to develop policies for my view that provinces should also enjoy legisla- own department which divert from the path or tive and executive power over tertiary educa- the pathos of the national Department of tion, including teacher-training colleges. The Agriculture, as my own civil servants are in IFP supports the autonomy of tertiary institu- constant working relationships with national tions. civil servants. The centralisation of the civil Each province should have its own depart- service is also increased at the higher levels of ment of justice, courts and prosecution machin- government by the fact that, for instance, all ery. In addition, each province should also director-generals are appointed by the develop its own body of substantive law, with President, and not by the relevant minister. every province enjoying equal status. Provinces Director-generals are responsible for the final should exercise judicial functions in all areas in administration of their departments and are the which they govern. In each province, where final accounting officers. They are accountable such do not already exist, a single division of to the President of the Republic and not to the the High Court, whose jurisdiction will corre- minister of the department. spond with provincial boundaries, should be This effectively creates the perception that established. All necessary administrative and the President can reach into any department and professional support (Master, State Attorney, control his own ministers through the director- Registrar and Attorney-General) should be general. In provincial departments it is the pre- decentralised. Provincial constitutional courts mier who appoints the heads of departments. should determine issues of constitutionality in The relationship between each of the director- the provinces, as is universal practice in other generals at the national and provincial level is federations. constant, as there are special venues at which The IFP opposes the establishment of the they regularly meet to strengthen the constitu- post of National Director of Public Prosecu- tional reality of a unified civil service. The final tions. The provincial attorney-generals should authority in such meetings eventually lies with be charged with the administration of justice in the President. There must be strong provincial their areas. In addition, the IFP does not sup- Public Service Commission (PSC) structures to port the creation of a super-ministry to fight facilitate a proper devolution of public service crime. It sees merit in maintaining and strength- and administration. ening the existing specialised provincial min- As in the case of federal systems, labour rela- istries and promoting cooperation among them. tions should be dealt with at a provincial rather To complete the picture, the peculiarity must

95 Singh be mentioned of the national government hav- this eventuality. One cannot refuse to sell pre- ing much greater responsibility in respect of scription drugs in case they are abused. Since in local government than provinces do. The IFP many respects, local government requires believes that the South African Constitution hands-on coordination, the IFP believes the was deliberately drafted to emasculate Constitution should be amended to grant provinces and this is particularly pronounced provinces – which are far closer to the prob- with respect to local government. Moreover, lems of local government than the national gov- the IFP is concerned that local government ernment – far more discretion than presently sometimes competes with, undermines and exists with respect to policy formulation on, attempts, at times, to supplant the role of and executive oversight of, local government. provincial government. Provinces have been entirely bypassed and are only titularly respon- CONCLUSION sible for the establishment of local government. We will continue to promote the agenda of However, the legislation relating to the estab- devolution of powers to strengthen the role of lishment of local government, their types, size, provinces and local governments. Since the structure, systems and operational procedures opening of negotiations in 1992, we urged the are all determined by national legislation and ANC to consider how the challenges of libera- national legislation alone. Provinces have no tion are closely related to the type of gover- legislative powers. Even legislation determin- nance to be chosen for South Africa. We want- ing the position of town clerks, who effectively ed to have a preliminary determination on the run the municipalities from an administrative issue of governance to decide up-front whether viewpoint, is determined by the national level it should be top-down or bottom-up. We called of government. Budgetary allocation to local for a preliminary determination of the form of governments can be done directly from the cen- state and urged the ANC to adopt the philoso- tral government to the local government con- phy of maximum devolution of powers. We cerned, bypassing the provincial government. were not heard then, but we hope that within The concern expressed in our context, as it is the parameters of a renewed spirit of reconcilia- always expressed by those who do not believe tion, we may be heard now. There must be in local autonomy, is the fear that something recognition that the devolution of powers to will go wrong. We are apprehensive about the provinces and local governments and their exercise of autonomy and devolving power, for empowerment with real autonomy of policy fear that it will be abused. The concern is valid formulation, is not an issue which affects the and the possibility does indeed exist, but the IFP, but it is indeed about the people of South debate ought to focus on how one intervenes in Africa and their future.

96 Prospecting for Productivity: Enhancing Good Governance in the Provinces

Heather Nel

INTRODUCTION It is thus apparent that provincial government Provincial government in South Africa has in South Africa constitutes a distinct sphere of been the source of much criticism over the past government with the authority to make deci- few years and, at times, there has even been sions on matters listed in schedules 4 and 5 of mention made of abolishing the provincial the Constitution. In this respect, provincial structures. It is against this background that it government in South Africa resembles regional is imperative to analyse critically the right to institutions in countries such as Italy, France existence of provincial government and there- and Spain in that it is distinct from local gov- after explore the prospects for productivity and ernment in terms of area, functions and the good governance in the provinces. This paper degree of autonomy envisaged for it. However, will aim to address these pertinent issues by it is furthermore distinguishable from federal- focusing on: ism in that the provinces do not share sover- • provincial government as a distinct sphere of eignty with the national state and their powers government are handed down to them from national gov- • the advantages of decentralising authority to ernment. provincial government Decentralisation reflects the institutional • the problems experienced by provincial gov- relationship between central government and ernment, particularly in a South African con- subnational spheres of government. Provinces text cannot become autonomous federal entities • various measures whereby the productivity competing with the power of central govern- of provincial government can be improved. ment. Rather, they are regarded as decen- In this respect, it is necessary to provide a brief tralised entities supporting the functioning of overview of the constitutional status of provin- the state and sharing the power and authority of cial government as a distinct sphere of govern- the central government. The reference to coop- ment. erative governance in Chapter 3 of the Consti- tution denotes supportive and complementary 1. PROVINCIAL GOVERNMENT AS A DISTINCT roles among the three spheres of government. SPHERE OF GOVERNMENT IN SOUTH AFRICA Thus, decentralisation as it applies to the Chapter 6 of the Constitution of the Republic creation and right of existence of provincial of South Africa, 1996 (Act 108 of 1996) makes government, needs to be understood in a South provision for the establishment of nine pro- African context as a process that should con- vinces, each with its own legislative and execu- tribute to: tive authority. Furthermore, section 40(1) of • national integration and unity the Constitution stipulates that government in • redressing historical wrongs and empowering South Africa is constituted as national, provin- people in the sense of enhancing cooperation, cial and local spheres of government, which are co-responsibility and the involvement of citi- distinctive, interdependent and interrelated. zens in the governance of the country

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• a unified approach and solutions equally sup- writes that one of the main opportunities for ported by central, provincial and local gov- making positive changes in the state social ernments to the diverse problems and chal- sphere in developing countries is provided by lenges facing the country. decentralising service delivery to regions and From the above, it can be deduced that provin- municipalities. He argues that such decentrali- cial government in South Africa enjoys the sta- sation enhances effectiveness by ensuring that tus of a sphere, as opposed to a level or tier, of programmes are matched more closely to the government. This terminology connotes a shift real needs of the target population. away from a hierarchical relationship towards a From a managerial standpoint, decentralisa- vision of non-hierarchical government in which tion will heighten efficiency by offering greater each government sphere has equivalent status, opportunities for a dynamic, flexible and rapid is self-reliant and possesses the constitutional response. Decentralisation can furthermore latitude within which to define and express its enhance the medium- and long-term sustain- unique character. ability of programmes in that it encourages In this respect, it may prove to be enlighten- recipient populations to articulate their needs. ing to explore the right of existence of provin- Kendall (1991:22) concurs by pointing out that cial government in South Africa. problems such as poverty, homelessness, crime, and a crippled public education system do not 2. RIGHT OF EXISTENCE OF PROVINCIAL lend themselves to top-down solutions imposed GOVERNMENT IN SOUTH AFRICA from above. Rather, solutions require the bot- According to Mawhood (1993:1) most govern- tom-up participation of those affected, as well ments favour the concept of decentralisation as a redistribution of functions and powers to since it implies a transference of legislative, subnational governments to ensure the highest administrative and judicial authority “away possible level of initiative and independence. from the centre” to subnational levels of gov- Keating (1995:185–186) adds that provincial ernment. This transfer of authority to, in this or regional government has been sought by case, provincial and local governments is decentralists seeking to transform the state and favoured for various reasons, inter alia, it: shift power from the centre in the interests of • can become an effective mechanism for over- democracy and pluralism. With larger areas, coming the serious limitations of centrally populations and resource bases, provinces are controlled national planning and ensuring seen as having a greater capacity for autono- that local needs are more effectively mous action over a wider range of functions addressed than the traditional units of local government. • will serve to curb the tendency of an all-pow- In particular, provincial government is seen as erful central government by building the being essential if economic and industrial pow- capacity of provincial/local officials in terms ers were to be decentralised, since local govern- of management and technical skills ment is at too small a scale to address these • would ensure greater representivity for diver- issues. gent political, religious, ethnic and tribal Despite the various arguments in favour of groups in development decisions decentralising authority to provincial govern- • could promote more flexible, innovative and ments, close attention needs to be paid to past creative management by allowing for experi- experience in this respect in order to be aware mentation in respect of policy and pro- of the difficulties and risks that may arise and gramme implementation to devise strategies for tackling and resolving • enables government to locate services more them. For this reason, the next section of this effectively within communities and to moni- paper will focus on the problems experienced tor the implementation of development pro- by provincial government, particularly within jects more carefully South Africa. • can further the efficiency of service delivery by reducing the diseconomies of scale inher- 3. PROBLEMS EXPERIENCED BY DECENTRALISING ent in overconcentration in the national capi- AUTHORITY TO PROVINCIAL GOVERNMENT tal. Reddy (1999:19–20) argues that decentralisa- Kliksberg (2000:252) supports the above and tion cannot be seen as a panacea for all govern-

98 Nel mental problems. Several of the problems asso- ments. Kliksberg (2000:253) correctly points ciated with decentralising authority to the out that if their capacities are weak and if no provinces in South Africa could be summarised sustained effort is made to strengthen them, as follows: then service delivery will be seriously threat- • Central–provincial intergovernmental rela- ened. tions are often marked by tension in that • Decentralisation can encourage separatist nationally based administrators and politi- tendencies particularly among minority cians may fear that provincial governments groups who desire complete sovereignty. would demand independence from the centre Based on field studies conducted in Argen- and undermine national policies. On the other tina and, in part, Brazil it has been noted by hand, since their inception, provincial gov- Raczynski (1995) that the pressures and prac- ernments have continued to demand tices of special interest groups are often far increased powers which would ensure signifi- more intense at the provincial and local levels cant provincial autonomy. than at the national level. In this way, elite • Inefficiency is prevalent since provincial power groups in regions and municipalities authorities cannot command sufficient may seek to steer decentralised resources resources to provide adequate services. towards their economic or political interests. Rapoo (1995:7) highlights the fact that the • Corruption in the provinces remains a critical predominance of central government on fis- problem which will only serve to further cal matters is regarded by some provinces as weaken the capacity of provincial authorities an area of deficiency in the relationship in terms of service delivery if it is not dealt between central and provincial government. with seriously. De Bruyn (1997:6) supports this and writes The problems mentioned above do not invali- that a vertical fiscal imbalance exists where- date the opportunities offered by decentralisa- by central government raises the vast majori- tion. It is vital, however, that provincial govern- ty of revenues, yet its expenditure responsi- ments take stock of their current strengths and bilities are relatively lower than the pro- weaknesses and plan strategically for concerted vinces. It is thus apparent that provincial gov- efforts to boost their productivity and build ernments in South Africa are expected to ful- their internal capacity. In this respect, it is nec- fil a vital role in meeting basic needs and essary to provide an overview of those aspects reducing inequalities in respect of service which require attention in order to enhance the provision, despite the fact that their revenue prospects for good governance and productivity base to do so is restricted. in the provinces. • Decentralisation can serve to increase regional disparities as the more developed and 4. ENHANCING THE PROSPECTS FOR GOOD affluent provinces are in a better position to GOVERNANCE AND PRODUCTIVITY IN utilise their devolved powers. Such regional PROVINCIAL GOVERNMENT inequalities can lead to social problems Any organisation must be productive to survive whereby young, economically active people and government is no exception. The contem- migrate to the more developed regions in porary pressures of scarcity, inflation, globali- search of well-paid employment and a higher sation and taxpayer discontent have further standard of living. This leads to a breakdown enhanced the demand for increased attention to of especially rural communities and the task productivity by elected politicians and public of enhancing economic development in the managers. less developed regions becomes much more difficult. 4.1 Defining productivity and good • Decentralisation measures have to be imple- governance mented under severe economic constraints Crane, Lentz and Shafritz (1976:1–3) refer to and such reforms are costly due to additional productivity improvement as organised efforts expenses for qualified personnel, transport, to obtain a greater yield from the resources buildings, maintenance, etc. Linked to this is allocated to government functions. Productivity the important aspect of the institutional and improvement efforts have a more specific managerial capacity of provincial govern- meaning than better management in that they

99 Nel feature a technical core centred around the rela- development of measures of efficiency and tionships of input to output and to standards of effectiveness on a programme-by-pro- performance. This implies that productivity has gramme, agency-by-agency basis. to do with something called the production • A focus on better resource utilisation within process. All organisations, including those in an established organisation, with given objec- government, can be seen as converting tives. Careful differentiation of information resources from one form into another. Systems needs depending on varying roles and levels analysts call this the input-through-output within government. cycle. When it is said that an operation is pro- • A concern with the interplay of motivation, ductive, it means that it is getting a satisfactory incentives and the role of participation in yield out of the production process. Quantity is decisions by various levels in the organisa- satisfactory in terms of the relationship of out- tion. put to input. In other words, the operation is • Relating the assessment of the performance efficient. At the same time, being productive of individuals and groups to the assessment implies that the quality of the product is satis- of programme efficiency and effectiveness. factory in that the output meets previously • Substitution of processes for reconciling mul- agreed upon standards of performance; in other tiple and conflicting views on objectives for words, the operation is effective. This dual def- exclusively centralised and hierarchical ones. inition of productivity has critical implications: • Emphasis on the need to assess performance first, any continued improvement of productivi- of a programme or operation in terms of both ty is highly dependent upon the ability to define efficiency and effectiveness as the two major input, output and standards of performance; and dimensions of assessing resource utilisation. second, individuals will understand these crite- • Differentiation of analytic and management ria in a common way. techniques that are appropriate by the nature Improving productivity requires acting in of tasks or objectives involved rather than new and different ways. People change their rigid application of one uniform approach to ways of doing things; they change the direction all activities of government. and persistence of their actions because the new Visser (1996: 241) supports the above concep- way is more rewarding than the old. They are tion of productivity and writes that productivity motivated to change because the new way will improvement programmes need to start with an satisfy some basic wants for material needs analysis of the effectiveness of provincial gov- such as money or socio-emotional needs such ernment. In other words, critical questions need as self respect. If people are anxious enough to be asked such as: about these wants and if their job is seen as a • Does provincial government do the right vehicle for satisfying one or several of these things? needs, then they will change their patterns of • Is the output of provincial government truly work. Once people are engaged in more pro- acceptable to the recipients of that output? ductive action, this behaviour must be consis- • Does the output have value? tently rewarded. The starting point is thus whether provincial The problem of productivity motivation, government is doing the right things and then using the above assumptions, is twofold. First, the next step is to measure whether those things there is the technical aspect – knowing the spe- are being done correctly. Here the focus is on cific agency production process well enough in efficiency, but it is important not to think of order to determine what changes should be productivity mechanistically in that attention made in the physical tasks of production. must also be devoted to the willingness or Second, there is the personnel management desire of people to be productive. Above all, problem of influencing the members of that productivity can be regarded as a state of mind. agency to move in favourable directions in a It is the spirit of progress and of continuous persistent way. improvement on what exists today. It further- Finally, emerging productivity improvement more denotes the sustained effort to apply new programmes often possess the following unique techniques and methods to improve on the cur- features: rent situation regardless of how good it may • Investment of significant resources in careful seem.

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Muthien (1996:256) elaborates by asserting General, which have been established to tackle that, although objective performance measure- this problem. In the interests of democratic ment is an invaluable management tool, it can- accountability, citizens must be able to report not replace dedicated public officials who are instances of corruption or unethical behaviour thoroughly socialised in the ideals and ethos of on the part of public servants without fear of public service. Their critical judgement com- victimisation or reprisal. bined with proper performance measurement In addition to the above, a code of conduct can contribute significantly to the improvement for public servants is a vital tool in reinforcing of the ends-means equation in government. a professional ethos. The Public Service Related to productivity improvement in Regulations, 1997 (Notice No. R825) make provincial government, is the concept of good provision for this by including a Code of governance. The use of the term “governance” Conduct for Public Servants. This Code of instead of “government” implies a shift in Conduct stipulates that public servants must not emphasis away from a top-down approach to use their official positions for personal gain, but government to an approach that seeks the active should always act in the interests of the public participation of citizens in public policy deci- being served. It is further indicated that in the sions which affect their daily lives. performance of their duties, public servants The principles of good governance enshrined must, inter alia: by the Constitution are listed in Section 195 as, • execute their duties in a professional and inter alia: competent manner • A high standard of professional ethics must • be honest and accountable in dealing with be promoted and maintained. public funds • Efficient, economic and effective use of • strive to achieve the objectives of their insti- resources must be promoted. tutions and the interests of the public • Services must be provided impartially, fairly, • promote sound, efficient, effective, transpar- equitably and without bias. ent and accountable administration. • The public must be encouraged to participate Clapper (1999:386–389) furthermore provides in policy making and their needs must be a breakdown of an ethics infrastructure which, responded to. in essence, can be regarded as a conceptual • Accountability and transparency must be fos- framework composed of mutually reinforcing tered. functions and elements designed to achieve the • Human potential must be maximised by requisite coherence and synergy that will sup- means of sound human resource management port a public sector environment where high and career development practices. standards of right-doing can be encouraged and With these principles in mind, it is necessary to rewarded. This ethics infrastructure comprises highlight certain key areas where provincial eight elements, namely: governments in South Africa can focus their • Attempts to improve public sector ethics energies in an effort to enhance productivity which need to be sponsored and supported by and good governance. The first of these is pro- political and administrative leadership. moting a sense of professionalism among • An effective legal framework needs to be in provincial officials. place to enforce constitutional documents, such as codes of ethics and other regulatory 4.2 Promoting a professional ethos codes and legislation. As pointed out previously, the problem of cor- • Efficient accountability mechanisms are ruption and maladministration is widespread in required to facilitate the early detection of the South African public service. This serves to any violations so that corrective action can be undermine the effectiveness of public institu- taken timeously. tions and directly contradicts the principles • Workable codes of conduct will serve to underlying the spirit of Batho Pele or “people channel the personal morality of public offi- first”. In this respect, citizens must be made cials towards public service aims, but will aware of mechanisms such as the anti-corrup- only be truly effective if punitive measures tion arm within the Public Service Commis- exist for non-compliance. sion, the Public Protector and the Auditor- • Professional socialisation mechanisms, such

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as ethics training and exemplary rolemodels This implies that all actions undertaken by in the workplace, can further ensure that pub- provincial governments need to be guided and lic officials are conscientised as to what is driven by the needs of the citizens. In this expected and what is acceptable in terms of respect, the prospects for productivity in pro- organisational behaviour. vincial government can be further enhanced by • Public service right-doing is also facilitated promoting democracy and citizen participation. by ideal supporting public service conditions such as competitive salaries, positive organi- 4.3 Promoting democracy and citizen sational hygiene factors, as well as measures participation that contribute towards security, growth and Democratisation goes beyond the right to vote motivation. and requires a comprehensive approach to the • A coordinating ethics body or bodies would development of a democratic and accountable serve as watchdogs, counsellors and promot- public service. In this respect, attention needs ers of ethics and right-doing. to be devoted to: • An active civil society can also fulfil a • internal democracy whereby mechanisms are watchdog role provided citizens are informed in place within a particular department to and enabled by government structures, legis- facilitate a participatory approach to decision lation and regulations to perform their civic making on the part of both workers and man- duties. agement In respect of an active civil society, it can be • external democracy whereby the public is noted that provincial governments are required able to influence and evaluate policy, both by legislation to provide full, accurate and up- indirectly, through elected representatives, as to-date information about the services they pro- well as directly. vide. The mechanism for achieving this will be In accordance with the Batho Pele principle of an Annual Report to Citizens published by consultation, it is also necessary that all provin- national and provincial departments. The pur- cial departments consult the public regularly pose of this report is to set out, in plain lan- and systematically, about: guage: • services currently provided • staff numbers employed • the provision of new basic services to those • names and responsibilities of senior officials who lack them. • performance targets in respect of service There are many ways to consult users of ser- delivery, financial savings and increased effi- vices including surveys, interviews, citizen ciency forums, or meetings with non-governmental or • resources consumed community-based organisations. However, • sources of income whatever method is chosen, consultation must • targets for the following year cover the entire range of existing and potential • a name and contact number for further infor- customers, with particular emphasis on includ- mation. ing the view of those previously denied access The aim of these reports is to provide the public to public services. Consultation must be con- with key information which they are entitled to ducted intelligently and the outcome thereof know and which will assist them in holding should be a balance between what the citizens public servants accountable. To fulfil this aim want and what provincial departments can real- adequately, these reports should be publicised istically afford. as widely as possible and should also be sub- Related to this, it is necessary for provincial mitted to national and provincial legislatures to departments to treat citizens as customers. This assist in legislative oversight and scrutiny of implies that provincial officials and politicians departmental activities. need to: It is thus apparent that while there are no easy • listen to the view of the citizens and take solutions in the fight against corruption, it is these into account when making decisions imperative that provincial governments employ pertaining to service delivery any means possible to curb unethical behaviour • treat citizens with consideration and respect and to promote a professional work ethos. • ensure that the promised level and quality of Related to this is the spirit of Batho Pele. service is always of the highest standard

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• respond quickly and effectively when service Despite this, it is noted in the Medium Term standards are not being maintained. Budget Policy Statement by Trevor Manual The Premier of the Eastern Cape, Reverend (1999:64) that provincial own revenue has been Stofile, remarked in a speech made to promote steadily decreasing, falling from R4.3 billion in the Batho Pele White Paper (1998) that provin- 1995–1996 to an estimated R3.4 billion in cial employees need to be committed to: 1998–1999. Provincial own revenue sources are • creating a corporate culture whereby every- limited, mainly comprising fees for motor vehi- one belonging to the same organisation com- cle licences, gambling licences and hospital mits themselves to fulfiling the objectives of services. the White Paper In line with the above, Moodley and Sing (in • instilling a strong work discipline and sense Reddy, 1996:187) write that there is a need for of self-responsibility foresight and planning in provincial govern- • understanding and being able to express the ment financing, ensuring a balance between kind of service their organisation provides justifiable expectations and available financial • ensuring a greater visibility of the vision and resources for delivering services. It is added mission of each provincial department. that, in bringing about efficient, viable or From the above, it is clear that a public service adequate financing on a rational basis, consid- ethos is one of the key ingredients of a produc- eration of certain factors is necessary. These tive provincial government system in South factors include, inter alia, the: Africa. It is essential that provincial govern- • nature and scope of functions and services to ments be viewed as responsive to the needs of be performed by provincial authorities the public and that the scarce resources avail- • current and potential sources of funding and able to provincial departments to provide ser- other available resources vices are being utilised in the most effective • level of infrastructural base and development and efficient manner. This requirement can fur- of beneficiary communities. ther be met through sound financial manage- This need for foresight and planning in respect ment. of provincial government financing is somewhat addressed by the Medium Term Expenditure 4.4 Promoting sound financial management Framework (MTEF) which serves as a tool to International experience, particularly in devel- help reprioritise expenditure and make informed oping countries, has shown that while fiscal policy choices that are affordable in the medium decentralisation can offer significant gains term. National government is, however, placing under the right conditions, it also carries the greater emphasis on the delivery of quality and risk of accentuating regional inequities and efficient services to people. This implies that compromising macroeconomic stability. Thus, provincial governments are required to make establishing strong foundations and correctly budgetary decisions which take cognisance of sequencing the devolution of responsibilities is what money will buy, with particular emphasis critical to attaining good governance. being placed on spending which will have the National government in South Africa recog- greatest impact on the quality of life of the ben- nises that there are sometimes vast differences eficiaries (Manual, 1999: 51). between provinces in terms of levels of devel- The prospects for productivity and good gov- opment, economic prosperity and social wel- ernance in the provinces will therefore not only fare. For this reason, the national allocations of be determined by merely increasing the nation- revenue to the provinces are based on a redis- al allocation of revenue to provincial govern- tributive formula which takes into account the ment. Rather, it is imperative that the provinces demographic and economic profiles of the explore possibilities for expanding their own provinces. It is furthermore acknowledged that revenue bases and that they implement sound the levels of wealth or income in a province are financial management principles. This will important determinants of demand for social ensure that provincial revenue is spent in the services. The equitable share formula is accord- most efficient and effective way, with the end ingly redistributive, to assist poorer provinces result being the provision of quality services in providing a basic level of services for their which respond to the expressed needs of the cit- citizens. izens.

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CONCLUSION provincial governments in South Africa commit This paper served to explore the prospects for themselves, inter alia, to : productivity and good governance in the nine • promoting a professional ethos and adopting provinces of South Africa. Although it was an ethics infrastructure to ensure public ser- pointed out that provincial governments are vice right-doing confronted with many problems and challenges, • enhancing democracy and citizen participa- there are several advantages attached to decen- tion in respect of service delivery by devoting tralising authority to subnational units such attention to the principles of Batho Pele as provinces. • ensuring sound financial management princi- It was furthermore asserted, however, that the ples in an effort to curb financial maladminis- opportunities provided by decentralisation can tration and to enhance the delivery of quality only be fully maximised if provincial govern- services to citizens. ments recognise their responsibility in terms of Should these and other principles be imple- productivity improvement and good gover- mented by committed provincial leadership, the nance. prospects for productivity and good governance In this respect, it was recommended that in the South African provinces are good.

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REFERENCES

BARRINGTON, T.J. From big government to ment financing in South Africa, in Reddy, local government: The road to decentralisa- P.S. (ed.), Readings in local government tion. Dublin, Institute of Public Adminis- management and development: A Southern tration. African perspective. Kenwyn: Juta. CLAPPER, V. 1999. On seeing the promised MUTHIEN, Y. 1996. The ends-means equation: land: Prospects for public sector right-doing. Assessing the effectiveness of public pro- Journal of Public Administration, vol. 34, no grammes in promoting the general welfare. 4. December 1999. Journal of Public Administration. vol. 31, no CRANE, E.G., LENTZ, B.F. AND SHAFRITZ, J.M. 4, December 1996. 1976. State government productivity: The RACZYNSKI, D. 1995. Estrategias Para Combatir environment for productivity improvement. la Probreza en America Latina. IBD Working New York: Praeger Publishers. Paper. CIEPLAN. DE BRUYN, J. 1997. FFC: No bite but a lot of RAPOO, T. 1995. A system in dispute: Provin- bark, Budget Watch, vol. 3, no 2, June 1997. cial government in practice. Johannesburg, KEATING, M. 1995. Does regional government Centre for Policy Studies, vol. 8, no 10, work? The experience of Italy, France and September 1995. Spain, in Pierre, J. Urban and regional REDDY, P.S. 1999. Local government democra- policy. Aldershot: Edward Elgar Publishing. tisation and decentralisation: A review of the KENDALL, F. 1991. The heart of the nation: Southern African region. Kenwyn, Juta, Regional and community government in the 1999. new South Africa. Norwood: Amagi Books. REPUBLIC OF SOUTH AFRICA, 1996. The KLIKSBERG, B. 2000. Rebuilding the state for Constitution of the Republic of South Africa social development: Towards “smart govern- (Act 108 of 1996), Pretoria: Government ment”. International Review of Administra- Printers, 1996. tive Sciences. vol. 66, no 2, June 2000. STOFILE, M. 1998. “Batho Pele: Forging a new MANUAL, T. 1999. Medium term budget policy social contract with our people”, Speech statement, 29 October 1999. given at the Batho Pele Campaign, 26 June MAWHOOD, P. 1993. Local government in the 1998. Third World: Experience of decentralisation VISSER, J. 1996. Measuring public sector pro- in tropical Africa. Pretoria: Africa Institute. ductivity. Journal of Public Administration, MOODLEY, S. AND SING, D. 1996. Local govern- vol. 31, no 4, December 1996.

105 Prospects for Provincial Government in South Africa: The Way Forward

Mohammed Surty

INTRODUCTION repression that the black majority were subject- In 1995, prior to the adoption of the final Con- ed to over some three centuries of colonial rule stitution, President Thabo Mbeki stated: and almost half a century of apartheid. It must “The African National Congress (ANC) is also be understood in light of the attempt by committed to a constitutional framework the apartheid state to create surrogate states in which balances constitutional powers the former Bantustans based on ethnic division, between the national, provincial and local supported by the myth that those homelands governments in such a way that the unity would contribute to the effective development and integrity of the state is not impaired.” of the black people of South Africa. He cautioned that the failure to secure an A constitution must reflect the ethos and appropriate constitutional framework may aspirations of a nation. Our Constitution has result in “provincial and ethnic conflict which been described as the birth certificate of the in turn could lead to balkanisation of the nation, as it represents a transition from a provinces”. President Mbeki also indicated that polarised racially divided and authoritarian we should deal with the issue of diversity with state to a non-racial and democratic state. It sensitivity. was a transition from a closed society which At the same time, the then ANC Secretary- regarded any opposition to its ideology as sub- General and Chairperson of the Constitutional versive, to an open and transparent democracy. Assembly, on behalf of the ANC, stated that It is for this reason that the Constitution in its the final Constitution would “empower founding provision, describes South Africa as provinces within a framework of cooperative one, sovereign, democratic state founded on the governance and not as a constitution of com- values of human dignity, the achievement of peting fiefdoms”. These remarks reflected a equality and the advancement of human rights constellation of four elements within the ANC and equality. It also commits itself uncondi- in terms of political perspective on provincial tionally to non-racialism and non-sexism. I government, which shaped the framework of shall reflect on this aspect further on. cooperative governance and the three spheres The second element emphasises the perspec- of government. tive of cooperative government. With this in mind it set the tone of the relationships 1. THE FOUR ELEMENTS between the different spheres of government by The first element is the commitment of the adopting principles of cooperative government ANC to a united democratic sovereign state and intergovernmental relations. While recog- which – as eloquently stated in the Preamble of nising the integrity and distinctiveness of the the Constitution and based on the ANC’s three spheres, the Constitution emphasises their Freedom Charter – “belongs to all who live in interdependent and interrelated nature. it, united in our diversity”. This must be under- Among the principles worth mentioning, are stood in the context of the oppression and that all organs of state within each unit must:

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• preserve the peace, the national unity and the logical and political bases on which a system of indivisibility of the Republic government has been established. What must • secure the well-being of the people of the now be addressed are the strategic challenges Republic that face government in general, and, in the • cooperate with one another in mutual trust context of this conference, provincial govern- and good faith by: ment. – fostering friendly relations The government through the President’s – assisting and supporting one another address at the opening of Parliament on 25 June – coordinating their actions and legislation 1999, set its development agenda along the fol- – informing and consulting one another. lowing principles: The third element within the ANC perspective • A better life for all. is that the provinces should not be seen as com- • A government at work. peting fiefdoms, but as a constellation of geo- • Advancing human dignity. graphic entities in a diverse society committed • Construction of a people-centred society. to the constitutional values. • Building a winning nation. • Coordination of government activities. 2. CONSTITUTIONAL VALUES • Intergovernmental cooperation. I now turn to these values. We are a nation • Ensuring an integrated approach to service its divided along racial lines. Blacks were subject- delivery. ed to the indignity of inferior education, • Regional cooperation. unequal resources, deprivation of job opportu- • The African Renaissance. nities, access to the economy, the franchise and • Accommodation of traditional leadership. – through the creation of homelands – their citi- • Crime prevention. zenship. In fact, whether at work, at home or at This programme unleashes certain strategic play, the dignity of blacks was violated. issues for consideration by the spheres of gov- Blacks were disadvantaged to such an extent ernment. They are, among others: that we had what our President referred to as • The need to integrate government activities two nations, in one country: the white one priv- with a view to enhancing service delivery. ileged, skilled, educated, resourced; and the • The need for national and provincial govern- black one lacking resources, education, skills ment to support local government as an and amenities. The achievement of equality important sphere, or site, of service delivery. was therefore also a pre-eminent value in the • The need for improved coordination and Constitution. cooperation between national and provincial The cornerstone of any democracy is a bill of government through an integrated, properly rights that is universally acknowledged. These sequenced and efficient intergovernmental rights, both civil and socio-economic, had to be system. entrenched in the supreme law to ensure that • The need for a monitoring framework both in they become the “touchstones” of our new respect of performance and service delivery. democracy. • The need for championing development with- The fourth and final element, alluded to earli- in a province including rural development. er, is the recognition of the diversity of our peo- • Strategic planning. ple and the sensitivity required here. This diver- The Demarcation Board has established new, sity – be it linguistic, cultural or religious – can different council boundaries. The support of be best managed through a cooperative system provinces in making district councils effective, of government, which while emphasising a coordination nodal points cannot be over common South Africa and African identity, emphasised. Rural development strategies by does not seek to diminish but rather protect the provinces must be integrated with national ini- linguistic, cultural and religious diversity of its tiatives to have a coherent and integrated strate- peoples. The Bill of Rights and the provisions gy for the country as a whole. relating to languages are a reflection of this. The provinces are obliged to provide capacity to local government and to make use of appro- 3. STRATEGIC CHALLENGES priate technology and managerial systems to What I have reflected on thus far are the ideo- achieve operational efficiency in their budgets.

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The issue of unfunded mandates, while tran- ations – this should be a last resort. Provinces sient, is a matter that must be addressed. must work in unison with the various local gov- Provincial government should ensure that ernment associations. municipal IDPs combine to form a viable Provincial taxation has already been the sub- development framework and are vertically inte- ject of a commission. The matter was debated grated within the Provincial Growth and in the National Council of Provinces and the Development Strategy. Provincial governments general view of premiers is that, at the current are also responsible for processing grants to stage of our development, it may be inappropri- municipalities for bulk infrastructure, such as ate. housing and public works. Provincial government should ensure that municipalities give pri- CONCLUSION ority to basic needs and promote social and Provincial government and all entities of gov- economic development. ernment including Parliament and all legislators The provincial government must also ensure must reflect on our strengths, weaknesses and there is effective institutional development and challenges, and may have to realign or refine capacity building. It must monitor the financial their method to deal with the pressing priorities status of municipalities and must put in place of reconstruction and development and the cur- appropriate fiscal controls. rent trends of globalisation. It must also monitor local government in a The Constitution sets out the framework, and constructive way by empowering local govern- it is the ability to manage institutions efficiently ment councillors within local government. It and effectively that will in the end reflect the must, when appropriate, intervene where the satisfaction or dissatisfaction of the perfor- municipality is not fulfilling its executive oblig- mance of government by the electorate.

109 Transparency International and the Fight Against Corruption

Gladwell Otieno

INTRODUCTION abuse of entrusted power for private gain”. It is Corruption is found to some degree in every in keeping with the advance of globalisation society. It is becoming a pervasive phenome- and privatisation and the already-mentioned non and is a sign that something has gone concern for a comprehensive advance against wrong in the relationship between society and corruption, which does not demonise one party. state. Indeed, if one is to adopt the more com- Corruption is most decidedly not the pre- prehensive approach to corruption being serve of developing countries, as media reports demanded and adopted, for example, by of scandals in Europe show. Transparency International’s (TI’s) South What is true, however, is that corruption African chapter, then corruption is also a sign causes the greatest damage in developing coun- that something has gone wrong between the tries and destroys the life chances of the poor- individual and the community. est of the poor. The evils of corruption have President Thabo Mbeki, in a speech to mark been amply demonstrated elsewhere and I will the official opening of the Ninth International not address them in detail here, except to say Anti-Corruption Conference held in Durban in that it is accepted that corruption undermines 1999, decried the fact that material values have good government and distorts public policy. It gained a greater worth in the eyes of many peo- leads to the misallocation of resources, harms ple at the expense of spiritual values: the private sector and private sector develop- “Corruption is a social phenomenon; there ment. It, above all, hurts those who can afford can be no doubt that all of us need to do it least. everything in our power to give corruption In its most extreme state, corruption can lead in both the public and the private sector no to the implosion of entire polities, as seen by quarter whatsoever.” the descent into chaos of the former Zaire, now Democratic Republic of Congo (DRC). 1. CONCEPTUALISING CORRUPTION There are many definitions of corruption, and a 2.TRANSPARENCY INTERNATIONAL detailed examination would go beyond the TI is the only international global non-profit bounds of this discussion. and politically non-partisan movement with an In its simplest terms, it is the abuse of power, exclusive focus on corruption. It is an interna- most often for personal gain or for the benefit tional non-governmental organisation (NGO) of a group to which one owes allegiance. It can dedicated to curbing both international and be motivated by greed, by the desire to retain national corruption and increasing accountabil- or increase one’s power or – perversely enough ity in all spheres of public life, particularly, but – by the belief in a supposed greater good.* not only, in government. As such, the concerns The definition long used at TI was, “the abuse and strategies of TI are of relevance to our of public power for private gain”. However, the deliberations here on the shape, structure of definition which now holds sway is, “ the government and the relations between its dif-

111 Otieno ferent levels and, in particular, of provincial independent institutions, carried out among government. business people and country analysts. The TI was founded in 1993, by a small group of impact of the CPI now reaches far beyond the people led by Peter Eigen, now chairperson of original awareness-raising goals it had hoped to TI. From humble beginnings it has grown to be achieve at its inception. In many countries of a respected and sought after interlocutor at both the South, the CPI has served the constructive national and international levels. purpose of stimulating public debate on corruption, acting as a catalyst for meaningful 3. STRUCTURE reforms. National chapters (NCs) in more than 77 coun- Intense concern for the controversial impact tries worldwide – with more in formation – are of the CPI has motivated efforts to widen its at the heart of the global anti-corruption move- scope and increase the number of countries sur- ment. veyed. As a result of this concern – and with The Board of Directors is the central govern- the aim of answering the critics in the South ing body of TI. It is democratically elected at who complained that the CPI was unfairly tar- the Annual General Meeting. An Advisory geting developing countries – the new Bribe Council, consisting of prominent individuals of Payer’s Index (BPI) was published. international standing, advises our movement and assists in developing our programmes. The 4.2 The Bribe Payers Index Council on Governance Research, consisting of The BPI was published in tandem with the CPI prominent academics and practitioners in the in October 1999, for the first time. The BPI, fields of corruption and governance, contribute based on data collected by Gallup International to research projects and proposals supported by on commission to TI, surveyed perceptions of TI. The International Secretariat supports NCs business leaders in 14 major emerging markets and implements our international agenda. with respect to the use of bribes by companies The TI mission statement provides a frame- from the 19 leading exporting states to win work for programmes and policies. Internally, businesses. The data reflected a disturbing lack TI is governed by its Charter, its Code of of awareness of the Organisation for Economic Conduct for TI office holders and the NC Cooperation and Development (OECD) con- Guidelines which govern the relationship vention in the corporate sector. between NCs and the international movement. A more detailed Bribe Payers Survey was Detailed information about current finances published at the beginning of this year. is given in the financial report as an income Apart from bribery, diplomatic or political statement, in the list of our donors and in the pressures were identified as the leading unfair annual report. business practice. As stated above, TI is active at both international and national level. 4.3 The OECD Convention Combating Bribery of Foreign Public Officials 4. INTERNATIONAL INITIATIVES The entry into force of the OECD Convention At the international level, TI has successfully against the Bribery of Foreign Public Officials, kept the issue of corruption on the international which criminalises the bribery of foreign public agenda. An important instrument in this effort, officials to win or retain business, was a major and one which I am sure many of you are aware success for TI chapters, particularly in Europe of, is the Corruption Perceptions Index (CPI). and the United States (US). The convention does have limitations but it is a positive sign 4.1 Corruption Perceptions Index that more countries are adhering to it and The last CPI – the largest yet – was published implementing the enabling legislation at nation- in October 1999. It ranked 99 countries with al level. South Africa has declared its intention Denmark at the top and Cameroon again at the of belonging to the convention. TI plays an bottom. The CPI is a “poll of polls”, reflecting active role in the monitoring process which is the perceived degree of public sector corruption unfolding at the OECD and will continue to in the surveyed countries. The 1999 survey press for strict and coherent application. But the drew on 17 different polls and surveys from 10 success of the convention will not be achieved

112 Otieno without the adherence of major international 7. STRATEGY players and the active support of the corporate TI focuses on building awareness that simply sector. Recognition is growing in the corporate strengthening prosecution and judicial powers sector of its social responsibility, and dialogue cannot by itself curtail corruption. Ibrahim with the sector may lead to the development of Seushi of TI Tanzania originated the concept of an internationally accepted integrity standard a National Integrity System (NIS) – an edifice which would be used as a benchmark for an built on what were termed pillars such as politi- international ISO-type certification. cal will, administrative reforms, watchdog agencies, parliaments, media, the private sector 5. ACTIVITIES AT NATIONAL LEVEL and the foundation of the whole structure As already stated, NCs form the core of the namely, public awareness and involvement. international movement. It is from this interna- The totality of institutions or pillars which tional network of NCs that TI derives its legiti- make up an NIS are interdependent: if one or macy as an international representative of civil more are weakened, the structure is thrown off society. The phenomenal growth in the number balance and an increased load is thrown on the of NCs, points to the inroads that TI has made others. This concept underlines the necessity in bringing the issue of corruption to the fore of for a holistic approach to combating corruption. the international agenda. While “quick wins” are desirable in mobilising An NC, when it adheres to TI, subscribes to a and motivating the public, an undue reliance on basic set of principles which govern its actions one pillar of the integrity system, e.g. the judi- and interactions with other groups and sectors. ciary, will not appreciably reduce corruption. An NC must agree to be politically non-partisan and independent from government and 8. STRENGTHENING CAPACITY FOR THE FIGHT commercial interests. It should refrain from AGAINST CORRUPTION investigation of individual cases and “naming Reflecting TI’s own meteoric growth, civil and shaming” of individuals, rather concentrat- society organisations (CSOs) are mushrooming ing its efforts on the improvement of systems across the globe. They are growing in terms of which make it more difficult for corruption to membership, while becoming more structured, entrench itself. NCs practise coalition building articulate and effective. New communication and bringing together people from the private technologies are enabling CSOs such as TI to sector, government and civil society. network across national borders thus strengthening their knowledge and influence. 6. WHAT IS THE ROLE OF NATIONAL CHAPTERS? I single out civil society because it has a par- TI’s NCs lie at very the core of its strategy ticularly crucial role to play in the fight against because TI strongly believes that informed anti- corruption. Governments are often part of the corruption initiatives that are homegrown, have problem and lack credibility even when pro- the best chance of lasting success. The chapters moting anti-corruption strategies. Similarly, are independent institutionally and financially business is very often as much the perpetrator from the Secretariat while observing the guid- of corrupt practices as it is sometimes the vic- ing principles. The NCs, embedded in their tim. varying contexts, can far better judge the local While in many countries there are strong context and adopt appropriate strategies than TI chapters waging a struggle against corruption ever could. In deciding their national strategies, and sometimes even winning a battle or two, there is an exchange of information and experi- many other chapters are located in countries ences in the international movement, facilitated where recently won democracy is still young by the Secretariat. However, the TI chapters are and fragile and civil society is not strongly autonomous; they are independent as long as developed. TI places particular importance on they adhere to the basic principles already men- the necessity to strengthen the capacity of its tioned. NCs to undertake the task they have set them- One of TI’s highest priorities is the strength- selves. To this end limited funds have been ening of its NCs and its contribution to the sourced for training. humanitarian and anti-corruption endeavours of To maximise the potential for change, the civil society worldwide. anti-corruption agendas of civil society must be

113 Otieno empowered by knowledge and public support was one under the guidance of the Public as they feed off each other. The greater the Service Commission and its chief directorate of research, the more convinced the public ethics. The envisaged coordinating structure is becomes of the need for action. The greater the currently under development. TI South Africa public support, the greater is the influence of is part of the National Cross-Sectoral Task CSOs. Team established to take recommendations to further transparency. South Africa is playing a 9. PROGRESS IN SOUTH AFRICA central part in the process of developing a more As a whole, in comparison to many other gov- coherent and coordinated input into the NACS. ernments, the South African government can be Several meetings at national and regional level proud of the advances it has made in the strug- will culminate in a national anti-corruption civil gle against corruption and for accountability. society summit to be held in November 2000. This, however, does not mean it can rest on its The Ninth International Anti-Corruption laurels. While a multiplicity of institutions have Conference was hosted in Durban in October been put in place to address the issue – e.g. the 1999 and it brought together delegates from Special Investigation Unit headed by Judge around the world to exchange experiences and Willem Heath and here in the Eastern Cape, the ideas. Public Protector’s Office – an important indica- tor of commitment to watchdog bodies is the 10. ACTIONS BY CHAPTERS – SOME EXAMPLES extent of their independence from the govern- To provide a more concrete idea of the ways in ment of the day and their resourcing in order to which civil society around the world is taking adequately perform the job that they are man- action against corruption, here are a few exam- dated to do. ples. The promulgation of laws such as the The chapter in Argentina has been success- Promotion of Access to Information Act – giv- fully endeavouring to compensate for weak ing effect to the constitutional right of access to national disclosure requirements in the area of state or private information that is required for political party funding. Political parties in exercising or protecting one’s rights, contained Argentina are not required by law to disclose in Section 32 of the Constitution – with certain the amount of private funding they receive. By justifiable limitations was a further advance. monitoring total political party spending above Access to information is a fundamental necessi- publicly disclosed levels of government financ- ty if citizens are to be empowered to press for ing, our chapter was able to estimate the accountable government. amount of private funding the parties were However, continuing reports of corruption on receiving. Once released to the media, these a grand scale point to the need for further vigi- figures became a potent trigger for change. In lance. the latest election campaign, corruption issues The development of a national anti-corrup- have made headlines and the three leading par- tion strategy (NACS) and a coordinating struc- ties were expected to sign an agreement where- ture has been moving ahead at a steady pace by they would disclose the full amount of pri- during the past two years. The national anti- vate funding. corruption summit held in April 1999, was the In nearby Malawi, the NC has conducted culmination of a process which had started the awareness raising seminars for religious and year before with a public sector anti-corruption educational leaders to conscientise them on the conference. In 1999, representatives from the issue of corruption. A drama competition has public sector, the private sector and organs mobilised the youth to come up with plays from civil society looked at problems related to against corruption. TI Kenya has been a central each sector and came up with a set of recom- player in the development of an NACS, and has mendations. An important decision was to also assisted Parliament in closed-door deliber- “rapidly establish a cross-sectoral task team to ations on the finalisation of an anti-corruption look into the establishment of a national coordi- and economic crimes bill to be presented to nating structure with the authority to effectively Parliament this year. lead, coordinate, monitor and manage the TI India, and another NGO, after years of national anti-corruption programme”, which empty promises took the bold step of establish-

114 Otieno ing an Independent People’s Ombudsman most meetings with interested companies and Commission in response to the Indian govern- observe the submission and opening of the bids. ment’s lack of will to establish institutions vest- Such monitoring on the part of civil society is ed with the power to investigate the charges of the key in confirming compliance to the rules corruption levelled against elected public offi- and ultimately, in the case of Bulgaria, it will cials. point to the success of reforms and the potential A committee of three senior retired judges for integration into international economic will be backed by a Citizen’s Vigilance structures. Committee composed of seven lawyers, who will seek to file a public interest petition before CONCLUSION the High Court and the Supreme Court for fur- Corruption at the local level touches ordinary ther criminal investigation on allegations which people in their daily lives. It undermines the the Ombudsman Commission has found to have delivery of basic services and weakens efforts substance. to entrench democracy in countries in transi- Barely beyond its first anniversary, our chap- tion. Local level involvement is an ideal start- ter in Bulgaria is playing a key role in monitoring point for civil society in the pursuit of open ing a flagship privatisation for the Bulgarian and responsive government. It is for this reason economy. An expert group formed by TI that TI’s NCs have become increasingly inter- Bulgaria has been monitoring the sale of a ested in corruption issues relating to local gov- strategic holding in the Bulgarian Telecom- ernment. Our chapters in Central and Eastern munication Company, thus ensuring that the Europe are now involved in a major initiative process has been taking place in accordance focusing on corruption in local government. with the relevant laws and regulations in all due These local level initiatives will focus on probity. Members of the expert group were improved service delivery as well as on diag- given the opportunity to sit in as observers on nosing and rooting out corruption.

ENDNOTE * Cf. Stapenhhurst and Kpundeh, Curbing Corruption, EDI Development Studies, 1999, Washington DC.

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