A Curious, Yet Familiar Debate[1]
The Constitution 17th Amendment Bill was published on 17 June.[2] Six days later, Helen Zille, leader of the Democratic Alliance [DA], issued a statement summed up in the slogan "Provinces must stay; Constitution 17th Amendment Bill must go" (see here). Zille states that the Bill is "intended to entrench the hegemony of the ANC across South Africa" and is "driven" by the ANC's "inability to accept that the DA won a popular mandate to govern in the Western Cape". But Zille tells us very little about the Amendment Bill itself, except to say that "The Constitution 17th Amendment Bill empowers national government to usurp powers from local government" and links this to an apparent attempt by the ANC to "scrap", "eliminate" or "reduce" provinces.
The Bill does not contain the word "province". It is intended to increase national control over municipal executive power.
There are three tiers of government: national, provincial and local - i.e. municipalities. S151(3) of the Constitution gives municipalities the power to govern their own affairs, subject to national and provincial legislation as provided for in the Constitution, while S151(4) prevents national and provincial government compromising or impeding the exercise of municipal power.
This Constitution Amendment Bill, however, will increase the potential for the top tier (national) to control the lowest tier (municipal). It is this that worries the DA, because in terms of Section 155(6) of the Constitution, municipalities must be established, monitored, supported and developed by provincial government. Further, S125 gives provinces the power to implement or administer, within the boundaries of the province, virtually all legislation, and S139 gives a province the power to assume executive responsibility in a failing municipality. The DA apparently sees this proposed Constitution Amendment Bill as usurping, for national government, some provincial functions, particularly in respect of municipalities.
It is important to note that this provincial role in overseeing municipalities has always been limited by national power. The arrangement is complex. Schedule 4 to the Constitution lists functional areas where national and provincial legislatures have concurrent competence, while Schedule 5 lists those where provincial legislatures have exclusive competence. Part B to Schedule 4 lists the municipal functions which, while under concurrent provincial and national legislative control, are for municipalities to administer (eg: electricity reticulation). Part B to Schedule 5 lists the municipal functions under exclusive provincial legislative control which are for municipalities to administer (eg: beaches). Anything not listed at all (eg: defence) is an exclusive national competence.
The provincial power over municipalities has always been circumscribed. S155(7) of the Constitution gives national government an oversight function, jointly with provincial government, in overseeing effective performance of all functions by municipalities. Where legislation is concerned, if Parliament and a provincial legislature pass conflicting legislation in a Schedule 4 area, S146(2) and (3) will see the national legislation prevail wherever, for example, national regulation or uniformity is required. Importantly, in the Mashavha case, the Constitutional Court said that "fairness and equality" were valid grounds for assuming national control in terms of this section.
Even where a Schedule 5 matter is concerned, under S44(2) of the Constitution, Parliament can intervene into any provincial or municipal matter in order to maintain national security, economic unity, maintain essential national standards, establish minimum standards for services, or prevent harmful or unreasonable action by a province. The national executive has an even more far-reaching power under S100, whereby it can issue a binding directive to a province failing to fulfil its obligations, or can assume complete executive responsibility for the relevant obligations of that province. This is essentially the situation in regard to the Eastern Cape Department of Health, although some would say national government has used this provision far too sparingly. Clearly though, provincial powers have serious limits.
On the one hand this poses the question as to why, given the conspicuous existing limits of provincial power, the DA is so up in arms over the Constitution 17th Amendment Bill. More importantly though it demands an explanation from the ANC as to why the existing arrangement, which already favours national government in many areas, needs to be augmented by a constitutional amendment.
Tension over the degree to which power is centralised in our Constitution goes back to the pre-1994 negotiating process. The DP wanted "states", the NP "provinces" and the ANC "regions". The NP and IFP (mostly absent) hoped to win the Western Cape, Northern Cape and KwaZulu-Natal, but made principled arguments in favour of decentralisation. The ANC wanted a unitary state,[3] but made principled arguments in favour of national transformation and economies of scale, and against Balkanisation. The Zille press release refers to "federal aspects of our Constitution", but the word "federal" was rejected at Kempton Park and does not appear in the Constitution.
This tension is reflected in the 34 Constitutional Principles adopted by the Multiparty Negotiating Forum (MPNF) against which the final Constitution had to be certified by the Constitutional Court. Principle XXI(2) held: "Where it is necessary for the maintenance of essential national standards... the Constitution shall empower the national government to intervene..." Principle XXI(4) held: "Where uniformity across the nation is required for a particular function, the legislative power over that function should be allocated predominantly, if not wholly, to the national government." On the other hand, Principle XX required that "Each level of government shall have appropriate and adequate legislative and executive powers and functions that will enable each level to function effectively." It went on to say that "national unity" must be weighed with the need for "legitimate provincial autonomy".[4]
At the first attempt to certify the Constitution, the Constitutional Court considered that the recognition of provinces was too weak, and sent the text back to be improved. Some of the final provisions have been discussed above. In addition, S40 speaks of the tiers of government being "distinctive, interdependent and interrelated", the emphasis being on integration rather than separation. Indeed, as S1 makes clear, "South Africa is one, sovereign, democratic state."
It is against this backdrop that the debate around the Constitution 17th Amendment Bill must be conducted. Are there valid reasons to oppose a review of the provincial system, or might critics, like the DA, be intent on retaining their own marginal sphere of influence, power and privilege to the detriment of the country? On the other hand, are there really valid reasons to reconsider the provincial system as it currently operates, or is any attempt to do so by the ANC government nothing more than an attempt to centralise power?
An Awkward Nine-Tentacled Creature
To keep interest up, there is a cameo role for the Dalai Lama in this debate. It goes back to the fuss kicked up over the government's decision to block His Holiness' visit to South Africa. Barbara Hogan created headlines when she publicly, and bravely, criticised the decision. Her comments on the Lama were in fact a few lines in an important speech about healthcare, service delivery and advancing the Constitution. She was speaking at an AIDS Law Project event on Constitution Hill, a place Hogan knows well, as she spent almost ten years, in the Women's Jail, as the first white woman convicted of High Treason by the apartheid state. On this particular night, 24 March 2009, Hogan was six months into her brief but celebrated term as Minister of Health. A major theme of her speech was the problem of the provinces. Whilst trying to fashion a working health system, and fix the mess that M3 (Mbeki, Manto, Mseleku) had made, she was finding that the diffuse and de facto autonomous provincial system was making that nearly impossible. Below is some of what she said.
"I would appreciate reflection from you on what we need to do about the struggle for access to basic care in this country.
I hesitate to say this in the presence of this Constitutional Court and in the presence of people who are schooled in our Constitution, but it is something we really need to ask ourselves. Is the present Constitution with its concurrent powers given to national and provincial governments around health, the ideal framework for the delivery of not only health but education as well?
I'm not saying this in any way that is disrespectful of our Constitution. But 15 years onwards, what we find is a situation in which you have a national department and nine almost autonomous [provincial] departments. The necessity of driving a programme in the face of the huge challenges facing us becomes incredibly constrained - and this is not disrespectful of the law and the Constitution - by the multiple levels of decision-making.
Let me just elaborate on one.
The national treasury allocates a lump sum to each province in terms of the division of revenue. That province is then free in terms of their constitutional right to divide that lump sum of money and allocate it to the different functions and services that it has to provide.
The national treasury allocates on the basis of a formula, which as part of its calculation determines an amount for health. A provincial treasury can completely subvert that and decide to reduce the amount. So we find that some provincial health departments receive less than anticipated... Then it goes to the provincial health department. That health department has a right to determine its own set of priorities. So what are those priorities? How do you get a united vision of what our priorities are?
I don't want this to be interpreted as in any way that is disrespectful or wanting to take away power from provinces because we're now in an election year and we're scared we might lose a province. It is nothing like that and sometimes the attempt within government to discuss these issues has been interpreted as a purely expedient attempt for central government to seize power. It is certainly not that."[v]
Given the history of contestation over provincial power, what would be a serious response to the problems Hogan describes?
The explanatory note to the Constitution 17th Amendment Bill gives another example. National government is finding it impossible to implement the Blueprint for the Reform of the Electricity Distribution Industry (EDI). The essence of the EDI is consolidation of electricity reticulation into six wall-to-wall regional electricity distributors (REDs) as public entities. But because electricity reticulation falls into Part B of Schedule 4, municipal participation in EDI is voluntary and national government cannot compel municipalities to transfer their electricity distribution assets into the REDs; attempts since 2001 to implement a voluntary system have proven ineffective. Under present constraints, says the explanatory note, the government will "never achieve" its objectives.
The DA might argue that these problems of coordination, planning and standardisation are addressed by S155(7) of the Constitution, discussed above. However, there is a considered opinion to the contrary. To explain this, it is useful to consider in some detail the Public Administration Management Bill[vi] [PAMB] which was tabled in Parliament in 2008. The PAMB set out to deal with some of the problems Hogan describes.
Last year Rudi van Rooyen SC, Chairperson of the Cape Bar Council, prepared a memorandum to Parliament on the PAMB on behalf of the General Council of the Bar.[vii] Van Rooyen described the "essential purpose" of the Bill as being:
"To render more effective the delivery of services throughout the country by a more uniform administration involving common standards, frameworks and conditions for personnel, transfers of functions between national and provincial governments, transfers of employees between institutions including all spheres of government, a single Senior Management Service across all institutions, and even unified service centres..."[viii]
A major element of the PAMB would be the creation of the service centres. These are described in a memorandum by the Community Law Centre of the University of the Western Cape as ‘one stop shops'.[ix] "The ideal", says the UWC memorandum, "is that a citizen should be able to, for arguments sake, query a water bill, apply for a driver's licence, collect a pension and apply for an ID in the same building." Van Rooyen called this a "very important and innovative" element of the PAMB. But as the UWC memorandum points out, "The realisation of this ideal requires close cooperation between the responsible spheres of government." And Van Rooyen suggests that the PAMB's legislative attempts to ensure this close cooperation, through centralising certain functions, would not be acceptable under the current constitutional framework.
Moreover, in reviewing the central features of the PAMB, Van Rooyen found that:
"Few could object to the objects of the Bill insofar as it aims to overcome deficiencies in service delivery or dysfunction in any area of public administration. However, to the extent that the provisions of the Bill would, if enacted, allow national government to intrude upon rights and powers reserved to municipalities and Municipal Councils in terms of the Constitution, constitutional challenges to the validity of the enactment, or to its implementation, are to be expected. Such challenges are clearly most likely where the political party or parties holding power in the Municipal Council differ from the one holding power in the province and nationally."[x]
In other words - and this assessment is borne out by the rest of Van Rooyen's memorandum - the PAMB is, in various respects, a potentially useful bill; but it may be unconstitutional.
If the problems Barbara Hogan describes are as critical as she suggests, and if the electricity reticulation example outlined above is one of many such difficulties, and if potentially useful attempts to solve these problems, like the PAMB, cannot pass constitutional muster, then the obvious next step is to amend the Constitution. And so, the government would argue, we arrive at the Constitution 17th Amendment Bill.
Safe, Legal and Rare
"Safe, Legal and Rare" is a well-worn slogan of conservative supporters of abortion-rights in the United States. It is a more appropriate maxim in regard to constitutional amendments. A few general principles must be stressed. Firstly, that government should always first try to work within the existing constitutional framework. Secondly, that if this does not allow for the necessary national government intervention, then the specific provisions blocking progressive change must be identified and amended as narrowly as is possible to address the concern. These principles may have been overlooked in regard to the Constitution 18th Amendment Bill relating to the State Liability Act, but in this case, the Van Rooyen memorandum seems to show that section 155(7) of the Constitution is not adequate to solve the problem, and that an amendment along the lines of the Constitution 17th Amendment Bill is appropriate.
One aspect of the Constitution Amendment Bill which should be changed is its opening phrase: "Notwithstanding any other provision of the Constitution national legislation may further regulate the executive authority of municipalities..." This suggests that national legislation, like the PAMB, would only need to be tested against this new constitutional provision (which would be S156(1A)) and not against the rest of the Constitution, including the Bill of Rights. This amounts to exclusion of judicial review; it would radically undermine the Constitution if the Amendment were to be passed with that phrase.
Overall though, the Constitution 17th Amendment Bill seems a serious attempt to achieve a reasonable solution, at least on paper. The expressions "when it is necessary", "appropriate", "equitable", and "essential minimum national standards" appear. On the face of it, it would not bar the local attainment of higher standards, and would not permit the discriminatory treatment of any province or municipality for political ends. The envisaged national legislation "may only be enacted" if municipal boundaries and executive authority "negatively impedes regional efficiencies and economies of scale in respect of a specific municipal function". All these are standards capable of contestation and adjudication by the Courts.
A Problem All Parties Must Face
Whether the Constitution 17th Amendment Bill, and the Public Administration Management Bill are enacted into law and withstand constitutional challenge or not, the problem of the provinces is not going away. Barbara Hogan's frustrations at the difficulty of coordinating a national health-care transformation in the face of nine semi-autonomous provinces, were echoed more than once by Naledi Pandor while serving as Minister of Education. Any national government, whether its rhetoric is federal or unitary, would confront this problem. South Africa is a developing country with a long history of dispossession; nothing less than a radical and sustained programme to tackle social inequality is required: it is unlikely that this can be implemented without enhanced national coordination.
On the other hand, while the nine provinces may ultimately prove unsustainable, some provinces are historically very real. The impulses towards separation in the Western Cape and KwaZulu Natal are not far below the surface, would be inclined to surface during a real crisis at the centre, and have real objective roots - primarily the geographic distribution of ethnicity: a still simmering cauldron liable to boil in the absence of unifying leadership towards progressive realisation of people's basic rights. Opportunist opposition parties exploit these fissures and intensify them, but they did not themselves create them. Bureaucratic centralism, if not carefully checked from the outset, will not weaken but rather strengthen them down the line.
Despite their origins the provinces have been, in certain circumstances, somewhat useful as a check on centralised power. Had it not been for the current arrangement, the PMTCT programme (to prevent mother-to-child transmission of HIV) in the Western Cape would never have started when it did. The same could be said for Gauteng and KZN. On the other hand, once the Constitutional Court ordered the state to implement a PMTCT programme, Mpumalanga Province failed to carry it out and had to be threatened with a contempt of court action before it proceeded.
The shambolic behaviour of the ANC leadership in the Western Cape might partly explain Zille's ability to perceive a power-grab every time the government sneezes, but the DA will need to get beyond this if it wants to be taken seriously. The situation described by Hogan is obviously insupportable, and the DA should explain in what way they contend (if they do) that the problem should be solved. Not merely for the Western Cape but also, for example, for the Free State and Mpumalanga. At the same time let them say exactly in what way the Bill could be improved - or substituted by an alternative, more suitable amendment of the Constitution.
The Constitution 17th Amendment Bill and the PAMB are, on balance, pushing in the right direction; increased coordination and economies of scale for better service. Both bills reveal a combination of important practical measures towards solving the problems of inefficiency in delivery while the PAMB also reveals strong tendencies towards centralised bureaucratic diktat. It is tempting to ignore or minimise the dangers of the latter because of the urgency of the former. However, this problem has a long history in SA and will have a long future.
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[1] With thanks to Nathan Geffen, Rob Petersen and Jonathan Berger for contributions and input.
[2] Department of Justice and Constitutional Development ‘Constitution 17th Amendment Bill' Notice 869 of 2009 Government Gazette 17 June 2009 No 32311 at http://www.pmg.org.za/files/bills/constitution17amendmentbill.pdf.
[3] African National Congress ‘Constitutional Principles for a Democratic South Africa' April 1991 at http://www.anc.org.za/ancdocs/policy/constprn.htm
[4] 34 Constitutional Principles, Schedule 4 to the Interim Constitution, Act 200 of 1993 as amended by s. 13 of Act No 2 of 1994 and by s. 2 of Act No 3 of 1994 http://www.constitutionalcourt.org.za/site/constitution/english-web/interim/schedules.html#sched4.
[v] This edit keeps the original meaning, while removing the peculiarities of speech. It has been read over and approved by Hogan as a fair reflection of what she said. It is appreciated that she agreed for the text to be used.
[vi] Public Finance Management Bill [47-2008] at http://www.info.gov.za/view/DownloadFileAction?id=83181.
[vii] Van Rooyen SC ‘Memorandum from R F Van Rooyen SC, in his capacity as chairperson of the Parliamentary Committee of the General Council of the Bar of South Africa ("GCB") COMMENTS ON THE PUBLIC ADMINISTRATION BILL [B47-2008]' Cape Bar Council 9 Sept 2008.
[viii] Van Rooyen Memorandum at para 6.
[ix] Community Law Centre, University of the Western Cape ‘Memorandum of the Draft Public Administration Bill' 30 April 2008 at page 5, cited in Van Rooyen Memorandum at para 10.
[x] Van Rooyen Memorandum at para 7.
