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The Place and Role of Local Government in Federal Systems

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The place and role of local government in federal systems EDITED BY NICO STEYTLER KONRAD-ADENAUER-STIFTUNG • OCCASIONAL PAPERS • JOHANNESBURG • NOVEMBER 2005 © KAS, 2005 All rights reserved While copyright in this publication as a whole is vested in the Konrad-Adenauer- Stiftung, copyright in the text rests with the individual authors, and no paper may be reproduced in whole or part without the express permission, in writing, of both authors and the publisher. It should be noted that any opinions expressed are the responsibility of the individual authors and that the Konrad-Adenauer-Stiftung does not necessarily subscribe to the opinions of contributors. ISBN: 0-9584936-8-5 Published by: Konrad-Adenauer-Stiftung 60 Hume Road Dunkeld 2196 Johannesburg Republic of South Africa PO Box 1383 Houghton 2041 Johannesburg Republic of South Africa Telephone: (+27 +11) 214-2900 Telefax: (+27 +11) 214-2913/4 E-mail: [email protected] www.kas.org.za Editing, DTP and production: Tyrus Text and Design Reproduction: Rapid Repro Printing: Stups Printing Preface South Africa has embarked on an important experiment of creating a decentralised system of government comprising three spheres of government – national, provincial and local. In comparison with international practice, local government has been given considerable constitutional recognition. In many respects South Africa is a leader in the emerging role that local government is expected to play in entrenching democracy and promoting development. South Africa is not, however, the only decentralised country in the world that has embarked on this route of strengthening local government as a full sphere of government. In the more recent constitutions of Spain, Brazil, India, Nigeria and Switzerland, local government has been entrenched. But having three spheres of government operating each with a degree of autonomy makes for complex relationships. It may also impact on the effectiveness and efficiency of government. These problems are shared by most decentralised countries. The place and role of local government in federal systems were examined at the annual conference of the International Association of Centers for Federal Studies (IACFS). From 29 September to 3 October 2004, the Local Government Project of the Community Law Centre, University of the Western Cape, hosted the annual meeting of the IACFS. The conference, sponsored by the Democracy Development Programme (DDP) and the Konrad-Adenauer-Stiftung (KAS), was held at Mont Fleur, Stellenbosch. The conference was attended by 20 international delegates representing 14 IACFS member organisations from 11 different countries. Delegates were also in attendance from South African organisations, including the Municipal Demarcation Board, the DDP and KAS, the Palmer Development Group, and the Drakenstein Municipality. iv THE PLACE AND ROLE OF LOCAL GOVERNMENT IN FEDERAL SYSTEMS This volume is a collection of some of the papers that were delivered at the conference. The Community Law Centre would like to express its sincere gratitude to both the DDP and KAS for their interest in the project and for their financial support that made the conference and this publication possible. The Centre also acknowledges the assistance of the Ford Foundation, supporting the research on local government in South Africa. I would also like to thank two interns sponsored by the Forum of Federation and the Canadian International Development Agency, Cristen Peel and Coel Kirkby, for their invaluable editorial assistance. Finally, my appreciation goes to all the contributors of papers who responded to the many queries and requests. Professor Nico Steytler Director, Community Law Centre University of the Western Cape November 2005 Table of contents Introduction 1 Nico Steytler State constitutions and local government in the United States 11 Michael E. Libonati Local government: Still a junior government? The place of 27 municipalities within the Canadian federation Harvey Lazar & Aron Seal Constitutional recognition of local government in Australia 47 Cheryl Saunders Local government in Austria 65 Peter Pernthaler & Anna Gamper Local government and city states in Germany 83 Jutta Kramer Local government in Spain 95 Enric Fossas & Francisco Velasco Local government in Switzerland 123 Pascal Bulliard Constitutional reform: Local government and the recent changes to 149 intergovernmental relations in Italy Beniamino Caravita di Toritto vi THE PLACE AND ROLE OF LOCAL GOVERNMENT IN FEDERAL SYSTEMS The normative autonomy of local government in Italy 169 Paola Bilancia Local government in South Africa: 183 Entrenching decentralisated government Nico Steytler Bibliography 213 Occasional Paper Series 221 Seminar Reports 227 Introduction NICO STEYTLER Three-level government – federal, state/provincial and local government – is common to all federal systems; however, the place and role of local government in those systems vary markedly. In some, local government is a constitutionally recognised sphere of government, while in others it is merely a competence of the state/provincial government. Nevertheless, local government has an increasing role in the governance of federal countries, placing new demands on the theory and practice of federalism. Moreover, its status is changing along with its new role. The constitutional recognition of local government as an order of government in federal systems is a modern phenomenon. The first federal constitutions of the modern era did not include local government as an order of government. The Constitution of the United States of 1787 was silent on the matter, as was the Swiss Constitution of 1848. In the Canadian Constitution of 1867, local government was mentioned only as a provincial field of competence. The Australian Federal Constitution of 1901, being silent on the matter, had the same effect – making local government a creature of state power. It was only after the Second World War that local self-government increasingly appeared in federal constitutions, often coinciding with the return to democratic rule. The first was the Constitution of the Federal Republic of Nico Steytler is director of the Community Law Centre at the University of the Western Cape. 1 2 THE PLACE AND ROLE OF LOCAL GOVERNMENT IN FEDERAL SYSTEMS Germany of 1949. Although the Spanish Constitution of 1978 was focused on the creation of Autonomous Communities, local autonomy was nevertheless mentioned. Brazil’s return to civilian rule was also marked by the extensive protection of local self-government in the Constitution of 1988. The entrenchment of local government in the 73rd and 74th amendments to the Indian Constitution in 1992 was prompted by developmental concerns, while the extensive protection of local self-government in the South African Constitution of 1996 was the result of both democratic and developmental goals. Similar sentiments informed the entrenchment of local government as an order of government in the Nigerian Constitution of 1999. In contrast to these developments, the recognition of local government in the Swiss Constitution of 1999 merely reflected the practice on the ground. In Italy, the constitutional reform initiatives of 1999 and 2001, entrenching decentralisation, have seen the recognition of regions, provinces and municipalities. The trend is to increase the role of local authorities in the provision of services. Local authorities are seen as engines for growth and development, and more and more functions are being downloaded on them. This places considerable stress on local government to finance new responsibilities. With the increased status and role of local government, intergovernmental relations between the three levels of government have not only become more complex, but also critical for the demarcation of responsibilities and effective cooperation in service delivery. Given these developments, the theory and practice of federalism are confronted with new challenges and questions, including the following: • Has local government emerged as an entrenched and viable sphere of self- government in federal systems? What were the principal historical, social or political reasons for the place that local government occupies in the system? • Does the emergence of local self-government matter? Are citizens better off? Does it promote democratic and accountable government and better service delivery? What, if any, is the value of the constitutional entrenchment of local self-government? • Where local self-government is entrenched, what has been the impact on the functioning of the federal system? Has it made intergovernmental relations INTRODUCTION 3 overly complex? Has it inevitably led to competition between subnational units for resources and power? • What does the future hold? Is the trend towards ‘glocalisation’ – state power shifting towards global governance and local self-government? Do we see the rise of ‘city states’ rivalling states/provinces? Some of these questions are addressed in this volume in the context of nine countries, namely: the United States (US), Canada, Australia, Austria, Germany, Spain, Switzerland, Italy and South Africa. A brief comparative overview of the papers, and the discussions they provoked at the 2004 annual International Association of Centers for Federal Studies conference, is given under the following headings: CONSTITUTIONAL RECOGNITION OF LOCAL GOVERNMENT: THE SHAPE AND CONSEQUENCES OF RECOGNITION (OR NON-RECOGNITION) As outlined above, local government was not recognised in the constitutions
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