South Africa has reached the last lap of its Constitution-making process, but the court’s judgment of the text means setbacks for the ANC and frustration for Inkatha. Marion Edmunds
The rejection of the Constitution’s chapter on local government by the Constitutional Court has provoked consternation among African National Congress negotiators — because it interferes with their local government programme.
Local government gurus within the ANC fear that revising the chapter will restrict the ANC’s freedom to develop the sorts of local governments it wants and needs to win votes over the next decade.
The Constitutional Court sent back the whole chapter on local government, asking for greater detail of differing municipal structures, legislative processes and finances.
This is problematic for ANC negotiators and government officials who have yet to take the necessary policy decisions to fill in those gaps.
The deputy director general of constitutional development, Andrew Boraine, said this week: “It’s not as bad as it looked at first … but I am worried about the effect it will have on the White Paper process. We wanted to first look at the role of local authorities and then decide on the most appropriate structures: we wanted structure to follow function. Now we are being rushed to finalise the structures before we have had a really deep look at what municipalities should be doing.”
Boraine said, by way of an example, that municipalities overseas were heavily involved in health care and education, and that remained an option his department wanted to think about before committing itself to structures in the Constitution.
“We really wanted to take a number of months over the White Paper but that will now have to change. It’s a difficult issue because government is not formally involved in the Constitutional Assembly, but we will have to describe a whole number of options in the chapter on local government so that we don’t tie ourselves down unnecessarily,” he said.
Concentrating on the constitutional chapter means that attention will be diverted from the local government bridging legislation, which was to be passed in Parliament this year, throwing a carefully planned timetable out of kilter.
Boraine and a number of ANC strategists believe the Constitutional Court judges have not fully appreciated the chapters on local government in the interim and new constitutions.
The latter chapter was kept deliberately short, simple and vague to give it the necessary flexibility to allow for local government to develop over the next eight years, adapting itself as it went along to the conditions of the country and the political needs of the ANC.
This approach has been spearheaded politically by senior ANC negotiator Pravin Gordhan, who convinced the constitution-makers to wrest local government away from provincial governments in the new constitution and make it an autonomous level of government, beholden only to the centre. This was also the foundation for the White Paper process.
Now, the Constitutional Court is demanding what they hoped to achieve in years, before November. It will cut short the opportunity for consultation on these structures, which is considered crucial. And it will also bind the government to local government structures with which they have had no opportunity to experiment.
It is an interesting conundrum, because its almost entirely the ANC’s. Opposition parties have supported the local government dream which has been growing quietly in strength and political importance since the elections.
And there is a second leg to the conundrum, in which Gordhan and Boraine find themselves. There is a danger that their work might be further undermined by the impulse from other quarters in the ANC to pull local government from its autonomous shelf, and submit it again to provincial government control.
In fact, this has already been hotly debated within the party, with negotiators such as MP Johnny de Lange proposing that local government be sacrificed on the altar of compromise, to balance out the powers of the province with the powers of the centre.
After an internal tussle, the idea was resisted, meaning that the ANC had to agree to the final draft of the Constitution, suspecting that the provinces had been denuded of too many powers to meet the demands of the constitutional principles.
Their suspicions were confirmed last week, when the judgment was handed down, although the court indicated specifically which areas tipped the balance. It pointed to two clauses — the national override and the clause setting national norms and standards in government delivery.
ANC legal experts, such as presidential adviser Professor Fink Haysom, are taking their cue from the judgment and saying that attention to those two clauses will be sufficient to correct the imbalance and that there is no need to play with the finely balanced plethora of provincial powers woven into the text.
But the court does point to other reductions of provincial power, areas in which opposition parties might wish to delve. If the debate shifts from the two suspect clauses into a general scrutiny of provincial powers, the ANC might feel obliged to submit local government again as a power up for negotiations rather than give provinces greater power over policing, for example.
“I would not rule it out, but at the moment it does not seem to be an option,” said Boraine cautiously this week. A senior ANC negotiator, Dirk du Toit, said that there was a chance that this could happen.
“The provincial government’s role in local government must be reconsidered and it must be done to ensure practical results,” Du Toit said. Should this happen, it will make a new local government chapter even more difficult to complete for certification.