South Africa’s provinces should conduct their own foreign affairs

22 January 2024

The ability to conduct foreign affairs is a defining characteristic of an independent, sovereign polity. This is why central governments, even in federations, tend to monopolise the function entirely, at the expense of subnational governments. But that is not the whole story.

It is a very unofficial and moreover academic understanding which, in South Africa’s case, is not entrenched by the Constitution. There are also international examples of subnational units in fact conducting at least some of their own foreign affairs. This leaves room for opposition-controlled provinces in South Africa to make a radical push for more decentralisation.

The Western Cape is at present the only such province, and it has very little in the way of excuses not to do so.

Incongruence between Cape Town and Pretoria

Around 21 November 2023, Parliament voted to break diplomatic ties with the State of Israel.

Somehow, I am told, this is not binding, and the executive can simply ignore Parliament on this score. I have my doubts.

South Africa does have a nominal separation of powers, but this does not apply between Parliament and the executive in the same way that it does between those two branches and the courts. This is because the executive is drawn from the legislature – South Africa is, in large part, a constitutional democracy.

In other words, in my view, the executive has no freedom to ignore a parliamentary instruction. If it does disobey Parliament, I would say this would amount to an automatic vote of no confidence in the incumbent Cabinet.

Whether the resolution Parliament adopted as regards Israel is a recommendation or an instruction is a different matter, but as far as I am concerned, the South African central government has now formally decided to break ties with Israel. The ill-considered accusation of genocide that South Africa is now levelling at Israel in the International Court of Justice does not help matters.

And, lest we forget, in addition to siding with (and hosting) Hamas against Israel, the South African government also preposterously finds itself on the side of Russia in its invasion of Ukraine, and on the side of the Beijing rebels against the only democratic and therefore, according to the debatable logic of modern state theory, the only legitimate government of China, based in Taipei.

The Western Cape, generally, does not share the insane foreign policy views of the central government. The Western Cape seems to position itself closer to the West than the African National Congress (ANC) does in Pretoria.

The people who live in the Western Cape have consistently – and without exception – rejected the ANC government in each of South Africa’s last six general elections. South Africa is  a federation, and subcentral units conducting their own foreign affairs in federations are not unheard of.

The Canadian province of Quebec and the Belgian provinces of Flanders and Wallonia have their own foreign offices. It is therefore not out of the question for subnational spheres of government in federations – of which South Africa is undeniably one – to conduct their own foreign affairs, at least partly.

This is even more the case, given that the Constitution does not explicitly reserve all foreign policy business to the exclusive domain of the central government.

The central government, according to section 231 of the Constitution, only has an exclusive mandate to engage in the ‘negotiating and signing of all international agreements’ that are binding on South Africa as a whole.

Take the initiative!

The Western Cape – and any other South African province,  but primarily Western Cape because it is the only province not governed by the ANC – could, if it wanted to, take the initiative in setting up a foreign office with a foreign affairs minister, who would be responsible for the foreign and international dimensions of their provincial (and municipal, where appropriate) competencies.

In Belgium this principle is known as foro interno, foro externo.

Municipalities, which have a far greater scope for self-government than provinces do, according to the South African Constitution, could also delegate some of their competencies upward to their provinces. The municipalities of the Western Cape could designate the provincial government as the international representative of their municipal interests.

If the Western Cape takes the initiative, it will empower other provinces that might be governed by opposition coalitions from 2024 to take similar steps when the time comes.

The Western Cape already has something called the Directorate of International Relations of the Department of Economic Development and Tourism. It states its own mission quite strongly, and along precisely the lines I am advocating, as being ‘to promote sound international relations, provide strategic advice, manage protocol, and to administer the provincial honours system’.

The province, therefore, on paper, already has a foreign office. But like the cold case unit of a police department, this ‘directorate’ seems to be the black sheep of the provincial government, that nobody (least of all the provincial government itself) takes seriously.

What would a provincial foreign office do?

If a province cannot sign binding international agreements, what would a real Western Cape Foreign Office conceivably do?

The value of pure (or ‘mere’, even) representation has suffered a loss of recognition in recent years. There was once a time when parliaments themselves were not primarily ‘law-making‘ entities. They were assemblies where the views of ordinary people outside of the political class would be represented.

Representation, in and of itself, of people or of viewpoints, is important and politically powerful.

One can think back to when South Africa became a subject of international concern, after former US President Donald Trump tweeted about the plans of the central government to confiscate property without compensation. Since then, some civil society organisations have made overtures to the American government, and to the European Union and its various member states, in an effort to garner international support against this backward policy.

It would have been powerful at the time, if a Western Cape Minister of Foreign Affairs were able to stand on the international stage and declare that the central South African government had gone rogue in its decision to water down constitutional institutions, and that the province was against this policy.

This would have been pure representation of over 7 million South Africans at the global level, even if that minister could not do anything binding. It would not merely have been an opposition party leader speaking against the central government, but a senior government official, clothed with legal authority, speaking against the anti-constitutional machinations of Pretoria.

Less symbolically, a provincial foreign office could be at the forefront of representing businesses from that province to international governments. It would also be the Western Cape government representative to foreign businesses looking for a new place to invest in. This seems to be the primary concern of the Directorate of International Relations, at least theoretically.

Western Cape Premier Alan Winde himself recently led a delegation to the United States, on behalf of the provincial government, to ‘promote the Western Cape as a trade and investment destination of choice [and] assure the US Government that the province remains committed to the Africa Growth and Opportunity Act (AGOA)’.  This was pure representation.

One piece of a federalist revival

The Solidarity Movement, a non-governmental group of organisations, has been able to conduct its own foreign affairs, having set up relationships with governments in Hungary and South Tyrol. If the Solidarity Movement can do it, a constitutional institution like the Western Cape Provincial Government has no excuse not to do the same.

Some might claim that foreign states will simply refuse to engage with anyone except the central South African government.

This is a nice, textbook idea, but likely not reflective of reality. Besides, this decision lies with the foreign governments. If they do not wish to engage with the Western Cape, then they need not engage. This does not do anything to harm the argument that the Western Cape must take the initiative and open the door.

The central government is, of course, likely to challenge provinces attempting to conduct their own foreign affairs. That is to be expected, and not necessarily a bad thing. The great federations of the world – the United States, Canada, and Australia – had their characters largely forged in the battleground of courtrooms.

In South Africa, there is an unfortunate dearth of federalist litigation, despite the federal nature of the Constitution. The Constitution is replete with ambiguous provisions relating to the division of powers between the spheres of government. This ambiguity, given the strong constitutional emphasis on subsidiarity, should be constructively exploited by provinces in favour of federalism.

If South Africa’s provinces begin conducting their own foreign affairs, this necessary litigation might be given a kickstart. Perhaps then federal decentralisation will finally begin to receive the attention it so desperately needs, at a time of state collapse.

Martin van Staden is the Head of Policy at the Free Market Foundation and the Deputy Chair of its Executive Committee. Martin has an LL.M. (cum laude) from the University of Pretoria and is pursuing an LL.D. at the same institution.

This article was first published by Daily Friend on 11 January 2024