A simple name-change to ignite a spirit of federalism amidst transformania?

Martin van Staden

In political-constitutional terms, what is the difference between South Africa and Austria? To most of the uninitiated, it would be that South Africa is ostensibly a ‘unitary state’ and Austria is a ‘federal state.’ Upon investigation, however, one finds that despite the common use of the appellation of ‘federal’ in Austria, it is in many respects a more centralised system than South Africa is.

Both Austria and South Africa are federal states, despite the degree of centralisation. Nonetheless, we still think of Austria as federal and of South Africa as unitary, simply (I submit) because of the names we give things.

Igniting a federalist culture in South Africa – to pack federal meat onto the already existing federal bones in the Constitution – could, in other words, be as simple as a name-change.

I am not suggesting that the Republic of South Africa be constitutionally renamed to the Federal Republic of South Africa. Instead, a far more modest proposal: if a federally inclined formation, like the Multi-Party Charter, takes the reins of power in the 2024 or 2029 general elections, it should adopt ordinary legislation that changes the name of our so-called ‘national government’ to the ‘federal government.’

While such legislation could (and should) contain more substantive provisions that give more generous effect to the existing federal nature of the Constitution, if it only changed the name of the ‘national’ government it would be doing a lot.

This alone would alter political discourse in South Africa, and has the potential to significantly influence how we think about our constitutional order.

A South African nation?

But it also makes sense at another level: South Africa is not a ‘nation’, so why do we – and indeed why does the Constitution – speak of a ‘national’ government and ‘national’ legislation?

The answer, perhaps, lies with the political aspiration to build a ‘South African nation.’ And, of course, the notion of ‘nation-building’ has always been central to the African National Congress (ANC)’s totalitarian enterprise of so-called ‘transformation.’

This has been quite incompatible with the desires of the peoples of South Africa to federate – not amalgamate.

The peculiar thing is that despite this strong preference for a nation-building unitary state among the ANC, South Africa still adopted two federalist constitutions in the 1990s. To be sure, the current Constitution is more centralist than the interim Constitution before it was, but, ultimately, they remain federal in that they give the subcentral units of governance – provinces, and uniquely, municipalities – original constitutional authority.

It is no surprise, then, that the ANC is quite unhappy with this state of affairs. It has attempted, and largely succeeded, in running the federal South African state as if it were a unitary one. South Africa, then, is a federation largely without federalism.

This is a politico-cultural issue that is ultimately only solvable by changes in mindsets and advocacy. This is something the Multi-Party Charter, or any other federalist movement today or in the future, will need to deal with as a long-term affair.

But some things can be done legally and policy-wise to encourage (but not attain) a general spirit of federalism in South Africa, and that includes a name-change to the ‘national government.’

South Africa is not and has never been a ‘nation’ in the same way the French, Danes, Thai, or Jamaicans are a ‘nation.’ In the future a ‘South African nation’ might emerge, but this would be a spontaneous, organic phenomenon that the ANC’s transformania simply cannot achieve. Currently, however, South Africa is a country comprising various nations – a veritable melting pot with linguistic and cultural diversities that has few rivals elsewhere.

A single, but federal, polity

The various nations of South Africa have time and time again committed and recommitted their desire to be united in a single South African polity.

The English and Afrikaans peoples did this in 1910. Afrikaner leaders reaffirmed the principle when they (repeatedly) rejected any talk of Natal secession during the previous century, and never truly allowed the black ‘homelands’ to conduct themselves in a sovereign fashion.

Black South African leaders, from the federalists in Inkatha to the leftists in the ANC, have also consistently resisted the balkanisation of South Africa.

These repeated commitments by every large population group in the country can be regarded as conscious decisions to federate – to co-exist within the single polity but at the same time retain their diversity.

It is therefore not inconsistent with South Africa’s history, the desire of its peoples, or incongruent with its formally federal Constitution, for the ‘national’ government to be called the ‘federal’ government, which presides not over a nation, but over many nations that have federated.

Such a change would require no constitutional amendments or significant expenditure.

Only political will and a conviction among the new government that South Africa is, in fact, a federation, would be necessary. With the type of poor legal advice the likes of the Democratic Alliance and Inkatha Freedom Party have been receiving for the last few decades, it will take some work to convince them.

Martin van Staden is Head of Policy at the Free Market Foundation.