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SOUTH AFRICA (Republic of South Africa) Janis van der Westhuizen 1. History and Development of Federalism South Africa is located at the very southern tip of the African continent and dominates the southern African region. Namibia, Botswana, Zimbabwe and Mozambique are its immediate neighbours, whilst South Africa entirely surrounds Swaziland and Lesotho. The country occupies 1,221,038 km2, and is inhabited by approximately 43 million people. As of the 1990s, the population was approximately 75.2% black, 13.6% white, 8.6% coloured and 2.6% Indian. Federalism has had a marred and highly contested reception in South Africa and this continues to be so, given its historically deeply divided polity. Four British territories—the Cape Colony and Natal (formerly under British control) and the Boer Republics of the Transvaal and the Orange Free State—were merged under the South Africa Act passed by the British Parliament in 1909. In May 1910 South Africa became a self-governing dominion within the British Commonwealth. The Union was a historic compromise: Afrikaners felt it meant greater independence and weakened British imperial influence, while the English saw the Union as consolidating British influence. Initially, the 1910 Union of South Africa explicitly rejected any federalist pretensions. At that time, the Union, celebrated as the reconciliation between Afrikaner and English interests, overshadowed white/black race relations. In fact, the process of creating the Union facilitated a protracted attack against the political rights of black and “coloured” South Africans. Although the Union began reconciling Afrikaner and English interests, it failed to unite South Africa, given that the black majority was excluded from political participation—the issue which subsequently shaped South African history until the 1990s. With the advent of the apartheid state in the 1950s, power was increasingly centralized with the four provinces of the Transvaal, Orange Free State, Natal and Cape existing as administrative units of (white) South Africa proper. The “bantustans” or ethnic homelands, were in effect treated as constitutional annexes or adjuncts consisting of four nominally “independent states” of Bophutswana, Venda, Ciskei and Transkei as well as six “self-governing territories”. These entities stood at the heart of so-called “grand apartheid”, for it was through these territories constituted along tribal lines that black South Africans were supposed to exercise their civil and voting rights. In effect, it meant that they enjoyed little more than “sojourner” status as gastarbeiter (guest workers) in ‘white’ South Africa. Hand-in-hand with grand apartheid, stood “petty apartheid” which was a vast network of state control through which virtually every conceivable aspect of daily life between South Africans of different races were segregated, including transport, residential areas, universities, shop entrances, public amenities, and even sex and marriage. However, the sheer cost which such a massive attempt at social engineering imposed, together with the ruling regime’s inability to provide “separate but equal” life opportunities to black South Africans, ultimately lead to apartheid’s collapse. Urbanization continued unabated, making the notion of grand apartheid all but a fiction. And, as black South Africans became trapped in poverty, unemployment and frustrated aspirations, social protest throughout the 1960s, 1970s and 1980s, triggered international condemnation, isolation and, ultimately, declining economic growth. Facing the vicious circle of international divestment, unemployment and social upheaval, F.W. de Klerk, the apartheid state’s last President, lifted the ban on the African National Congress (ANC) and other popular political movements. This began a process that involved Nelson Mandela’s release from prison, negotiations leading to an interim constitution and inter-party agreement on a quasi-federal constitution, democratic elections which resulted in a coalition government under the interim constitution, the operation of the democratically elected Parliament as a constitutional assembly to draft the new constitution, and the adoption of a new constitution in 1996. Given that apartheid was justified, in part, on a federalist rationale, the federalist idea continued to be viewed with considerable scepticism—if not outright rejection—by many of the disenfranchised during South Africa’s political transition in the early 1990s. Members of the ANC in particular, saw proposals for strong regional government as a form of neo-apartheid, especially because the incumbent National Party became the most ardent champion of federalism with the onset of the transition. The ANC and its allies feared that a federal order with delegation of powers to the provinces would weaken and disperse authority considerably, thereby heavily restricting the central government’s capacity to implement and consolidate mechanisms for reconstruction and development in the post-apartheid era. The support for federalism came from a variety of quarters. Besides the National Party (NP), and liberal democratic Democratic Party (DP), the Inkhata Freedom Party (IFP), which often projects itself as the sole custodian of Zulu political interests, also demanded a highly autonomous KwaZulu-Natal where Zulus remain the ethnic majority, and even claimed the right to self-determination. Similarly, a small group of radical, ultra-right Afrikaners clamoured for the creation of a Volkstaat, effectively a homeland exclusively for white Afrikaners. Indeed, the convergence—despite considerable ideological differences between these constituencies—due to their interest in autonomy resulted in a regular, informal, if odd coalition during the negotiations process to enhance the federalist features of the South African constitution. Most importantly, the NP—representing the majority of whites (and increasingly “coloureds”)—saw federalism, and with it a Bill of Rights, as providing an important check on the excesses of power by a new majority government. Strongly contested and often threatening to upstage the negotiations process altogether, the impasse was finally broken by a March 1993 proposal contained in a confidential Report to Political Parties commissioned by the Consultative Business Movement. The proposal suggested the “34 constitutional principles”, which would have to be followed by the democratically elected Constitutional Assembly when it devised the final constitution. The most important of these included requiring each level of government (national and provincial) to have both exclusive and concurrent powers (Principle XIX) and, highlighting the principle of subsidiarity, that decisions should be taken at whatever level is most “responsible and accountable” (Principle XX). Most analysts view the South African constitution as essentially a federal one, drawing especially upon the German model of integrated federalism with framework legislation implemented by the Länder and fairly tight integration between the central and provincial governments achieved through the Bundesrat. In other words, although the regions fully participate in policy formulation regarding the provinces, the central government has the final say. 2. Constitutional Provisions Relating to Federalism The Republic of South Africa is a parliamentary democracy with the President acting both as head of government and head of state. South Africa’s hybrid presidential-parliamentary system and constitution came into effect on 11 October 1996. The South African constitution and especially the Bill of Rights has been labelled as one of the most progressive in the world and makes special provisions for a number of commissions and offices (Chapter 9). These include: the Auditor-General (s. 188); the Public Protector (s. 182); the Human Rights Commission (s. 184); the Commission on Gender Equality (s. 187); the Independent Electoral Commission (s. 190); the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (s. 185); and finally, the Independent Broadcasting Authority (s. 192). The constitution establishes a federal entity of nine constituent units, namely the provinces of KwaZulu-Natal, Gauteng, Free State, Western Cape, Eastern Cape, North, North West and Mpumalanga (s. 103). Unlike most federations in deeply divided societies, the provincial boundaries are not designed to coincide with racial or tribal boundaries in recognition of the political need to escape similar past practices. The constitution recognizes three “spheres” of government—Chapter 3 of the constitution rejected the use of the term “level of government”. The formal recognition of local government as a distinct constitutional sphere in South Africa contrasts with the practice in many federations where local governments fall under the jurisdiction of the constituent units. The 1996 constitution is designed to promote a model of cooperative federalism rather than competitive federalism. The provincial governments are therefore required to operate in accordance with the letter and spirit of the principles of cooperative government as set out in Chapter 3 of the constitution. A rigid separation of tasks and functions between the different “spheres” of government is absent—clearly suggested by the Council of Provinces with its confluence of national, provincial and local government interests. Nevertheless, the principle of cooperative government does not undermine provincial autonomy. For example, both the Western Cape and KwaZulu-Natal provinces have exercised the right to establish their own provincial constitutions (s. 104) with only that of the former securing approval by the Constitutional Court (s. 144). Yet, it must be acknowledged that the division of power privileges the central government, which sets national standards and norms and may over-ride provincial standards which threaten national unity or national standards. There is a very short list of “exclusive” provincial powers (i.e., abattoirs, provincial planning, roads, sport, cultural, and veterinary matters). In more critical issue areas, powers are concurrent and thus either sphere can legislate, although national law again prevails in matters which cannot be effectively managed by provinces or require uniformity to be effective. South Africa has a bicameral Parliament consisting of the National Assembly (NA) and the National Council of Provinces (NCOP), both located in Cape Town (s. 42(6)). The National Assembly consists of 400 representatives elected on the basis of proportional representation and party list system (Chapter 4, ss. 60-72). As the democratically elected lower house, the National Assembly must ensure “government by the people under the Constitution”. There is a strong possibility that Parliament will be relocated to the administrative capital of Pretoria in the near future in order to reduce the costs associated with split legislative and administrative capitals. The upper house was called the Senate in the interim constitution, but in the 1996 constitution it is called the National Council of Provinces. This body consists of 90 members representing the particular interests of the nine provinces and ensures that those interests are not seriously abrogated by the central government (s. 42(4)). The 1996 constitution makes a decisive break with the British-inspired principle of parliamentary sovereignty in that Parliament is subject to limitations imposed by the constitution As far as fiscal arrangements are concerned, the provinces enjoy limited revenue-raising capabilities as well as very limited borrowing powers (s. 230). Basic rules are set in the constitution and the Inter-governmental Fiscal Relations Act, first implemented in the 1999 budget. Fiscal federalism is highly centralized with distribution taking such factors into account as the needs of national government, the effectiveness of provincial governments as well as the need to overcome income inequalities “within and among provinces” (s. 214(2)(g)). The Finance and Fiscal Commission has been created to make recommendations on the distribution of the budget (s. 220). Section 227 provides for each province to be allocated an equitable share of revenue raised nationally. Additional revenue raised by the provinces or municipalities may not be deducted from their share of revenue raised nationally or from other allocations made to them out of national government revenue (s. 227(2)). The South African constitution has clear guidelines relating to the resolution of constitutional disputes (Chapter 8). In addition to the principle of cooperative government, all spheres of government need to exhaust “every reasonable effort to resolve any disputes through intergovernmental negotiation” (s. 41(3)) and employ every method before approaching the courts to resolve the matter. The courts can even refer such a dispute back to the different parts of government if they consider that substantial efforts have not been made in this regard (s. 41(4)). If a court of law is unable to resolve a dispute, national legislation prevails over provincial legislation or the provincial constitution in cases where conflict over the interpretation of legislation is concerned (s. 146(3) and s. 148). Nevertheless, the Constitutional Court has final say about issues involving central, provincial and local government (s. 167). The Constitutional Court is the highest court regarding constitutional matters. It consists of a President, Deputy-President, and nine other judges (s. 167(1)), and matters must be heard by at least eight judges. The Constitutional Court decides disputes between organs of the state, and on disputes relating to the constitutionality of any provincial or parliamentary bill or constitutional amendment (s. 167(4)). These matters can be brought directly to the Constitutional Court by any person, provided it is “in the interests of justice and with leave of the Constitutional Court” (s. 167(6)). Special and rigid procedures have to be followed in order to make constitutional amendments (s. 74). Such amendments can be classified according to five categories, with different degrees of rigidity involved. Since not all these can be described in detail here, suffice it to indicate that amendments to the entrenched powers of the constitution itself may only be amended by a bill passed by at least 75 per cent of the Assembly together with the support of at least six of the provinces in the National Council of Provinces. The Bill of Rights—a category two amendment—may only be amended by a minimum two-thirds in the Assembly and with the support of at least six of the provinces in the NCOP (s.74(2)). Other amendments which (a) relate to matters affecting the NCOP or (b) alter provincial boundaries, functions or institutions or (c) amend a provision which specifically deals with a provincial matter, also require at least two-thirds support in the Assembly as well as the support of at least six of the provinces in the NCOP. The recognition of the constitutional role of traditional leaders and the right to self-determination (s. 235) is an interesting feature of the South African constitution. The constitution recognizes that traditional authority predates the advent of European colonization of South Africa. To ameliorate the considerable tension which arises from the traditionalism of African indigenous law and its authoritarian patriarchal nature on the one hand, and the modernist, democratic and egalitarian ethos of the constitution on the other, a Council of Traditional Leaders has been established (s. 212). Members are appointed by the Provincial Houses of Traditional Leaders as provided in Section 212(2)(a) of the constitution and are eligible for re-nomination. At the provincial level, Houses of Traditional Leaders have also been created. Nevertheless it is clear that customary law and traditional leaders are empowered essentially to perform a symbolic and advisory role and traditional leadership remains subject to Chapter 12 of the constitution. In relation to the highly sensitive and controversial right to self-determination—largely in reaction to the ultra rightwing Afrikaners and certain constituencies within the IFP—the constitution does not preclude “recognition of the right to self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by legislation” (s. 235). 3. Recent Political Dynamics Since implementation of the constitution, no substantive movement has been made toward the creation of a Volkstaat. Local government elections in December 2000 brought new tensions between traditional leaders—known as the amakhosi—and newly created municipal structures to the fore. Traditional authorities often co-exist alongside modern institutions. For example, local chiefs would provide permission for the acquisition of residential sites by government. With the expansion of local government structures, however, the amakhosi fear that municipal powers and functions will erode their control over land and the administration of justice, ultimately leading to their own demise. Indeed, tensions between government and the amakhosi were so severe that the latter threatened to disrupt local government elections if their status was not secured. Such a bill is to be passed in Parliament in 2001. In the local government elections of 5 December 2000, the ruling ANC garnered approximately 62 per cent of all votes cast nationally and the official opposition, the Democratic Alliance—which amalgamated with the remnants of the National Party shortly before the elections—attained approximately 22.5 per cent. This reflected an almost six percentage point increase on the 17 per cent vote which its constituent parties, the Democratic Party, the National Party and Federal Alliance, won in the general elections of June 1999. Whereas only 48 per cent of ANC supporters voted, the Democratic Alliance was able to get 57 per cent of its voters to the polls. Many observers contend that the degree of apathy displayed by would-be ANC voters—and black African youth in particular—reflects a considerable degree of disillusionment with the lack of social delivery and development six years after South Africa’s first and widely celebrated elections in 1994. Indeed, these voting patters are symptomatic of the profound challenges facing the ANC. Although South Africa’s complex political transition was widely acclaimed, success in terms of reconstruction and development remains elusive. Rather than embarking upon a kind of Keynesian, demand-induced macro-economic program, on which the ANC rose to power, the pressures of globalization have forced a dramatic swing to a neo-liberal program. Although the government has succeeded in luring some foreign direct investment—especially from 1997 to 1999—and has generally succeeded in gaining the respect of the world’s capital markets, domestic political strains loom within the broader governing alliance of which the ANC is the dominant partner. The process of privatization, deregulation and liberalization has incurred the wrath of one of the ANC’s most important constituents, namely labour, represented within the ruling alliance by the Congress of South African Trade Unions. How the ANC manages to consolidate the neo-liberal program on which it has embarked and yet prevent the ruling alliance or even the party, from splitting, will continue to be crucial in shaping the nature of the South and southern African political landscape. At the provincial level, the ANC’s control of all but two provinces—Western Cape, under the opposition DA, and KwaZulu-Natal, governed by the IFP—has stymied the overall process of the provinces gaining a greater degree of freedom from control by the centre. The most direct expression of central efforts to prevent the provinces getting more control has been the appointment of Premiers from ANC headquarters. Tensions between the central government and opposition-run provinces has meant that attempts by the latter to pursue autonomous initiatives relating to relatively ‘technical’ issues (for example, crime prevention strategies) have become highly politicized. More immediate and specific challenges include, first, preventing and overcoming some of the highest rates of HIV/AIDS infection in the world. Second, the government must take measures to reduce the crime rate (which appears to have stabilized in many areas recently). Third, it is necessary to address issues relating to the fact that, although unemployment is high, there is a lack of skilled and semi-skilled labour, especially in management and information technology. 4. Sources for Further Information Abedian, Iraj, Tania Ajam and Laura Walker, Promises, Plans and Priorities: South Africa’s Emerging Fiscal Structures, Institute for Democracy in South Africa, 1997. Calland, Richard, The First Five Years: A Review of South Africa’s Democratic Parliament, Institute for Democracy in South Africa, 1999. Devenish George E., A Commentary on the South African Constitution, Durban: Butterworths, 1998. Hailbronner, Kay and Christine Kreuzer, “Implementing Federalism in the Final Constitution of the Republic of South Africa”, Konrad Adenauer Foundation, Occasional Paper Series, September 1995. Ndlela, Lindiwe, A Practical Guide to Local Government in South Africa, Institute for Democracy in South Africa, 2001. Robinson, Jenny, “Federalism and the Transformation of the South African State”, in Grahan Smith (ed.) Federalism: The Multiethnic Challenge, New York & London: Longman, 1995, pp. 255-278. Www.polity.org/za/govdocs/constitution/saconst.html www.concourt.gov.za www.washlaw.edu/farint/africa/soaf.html www.idasa.org.za/democracy/constit.html www.idasa.org.za/democracy/institut.html www.h-net.msu.edu/~sapsa/ www.constitution.org.za