provinces
Ian Clayton
Plans by the African Natonal Congress to downgrade provincial governments in favour of stronger municipalities will result in a constitutional fight that the party is bound to lose unless it has a clean sweap of Parliament and provincial legislatures in the June 2 election.
Even then, it will take a major rethink of the 1996 Constitution, which has a separate chapter on “co-operative governance” where the key role of the provinces is emphasised.
Not only has Deputy President Thabo Mbeki pledged not to make any substantial changes to the Constitution, even if the ANC obtains a two-thirds majority next month, but he has also previously endorsed provincial powers and the complex National Council of Provinces (NCOP) system.
The move to give local government more power might well be welcomed in the larger urban areas, but it could further marginalise the rural areas, where nearly half of South Africa’s people live. Many local governments in the rural areas struggle to deliver any kind of service and are starved of resources. Ineffective as much of provincial government may be, it is the key instrument of government delivery in those areas.
Kgalema Motlanthe, secretary general of the ANC, said in an interview with The Sunday Independent that the ANC would push for the downgrading of provincial government and said discussion on whether provincial governments were a necessity or not could start soon after the election.
“What we have to decide as a country is whether we should go the way of the Western world, where the mayor has more powers than the regional leaders,” he was quoted as saying.
Even Motlanthe conceded that there would be resistance to such a move from provincial governments, of which seven out of nine are currently controlled by the ANC.
He is also likely to meet opposition at a national level within the ANC. For example, the national chair of the ANC and current chair of the NCOP, Terror Lekota, is a strong supporter of provincial powers.
But the provisions of the Constitution will severely restrict Motlanthe’s or the ANC’s ability to move on the issue.
Sub-section 8 of Clause 74 provides that any Bill “concerns only a specific province or provinces, the National Council of Provinces may not pass the Bill or the relevant part unless it has been approved by the legislature or legislatures of the province or the provinces concerned”.
In other words, all the provincial legislatures would have to agree to having the powers of the provinces being reduced before the NCOP, and therefore Parliament, would have the power to amend the Constitution.
Sub-section 3 of Clause 74 provides that any Bill that alters provincial boundaries, powers, functions or institutions or amends a provision that deals specifically with a provincial matter would have to be supported by a two-thirds majority in the National Assembly and six of the nine provinces.
Just to make sure that tampering with these provisions would not be easy, the Constitutional Assembly decided that the clause providing for amendments to the Constitution could only take place if supported by 75% of the National Assembly and six of the provinces.
In short, remarkable national consensus across party lines would be necessary to implement Motlanthe’s proposals and it is doubtful he would be able to gain such consensus within the ANC, particularly at a provincial level, let alone among other political parties.
The chapter in the Constitution on co- operative governance lays down that the “government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated” and that “all spheres of government must observe and adhere to the principles in this chapter”.
In the recently released review of the NCOP, Mbeki is quoted as saying: “We must continue to be informed by the perspective which guided us as we drafted the Constitution … Two of the most important principles which were part of that perspective were participatory democracy and co-operative governance.”
And Lekota is quoted as saying: “What the NCOP brings to government and politics in South Africa is a new political culture. This is the culture of consultation and co- operation that is enshrined in the Constitution in the principles of co- operative governance.”
Clearly, in the circumstances, a major rethink by ANC leadership and a substantial constitutional review, as well as a two- thirds majority and victory in at least six of the provinces, will have to take place before Motlanthe’s claim that the ANC wants to downgrade provincial governments can be seriously considered. Even then, all provincial legislatures would also have to agree, and the chances of that are remote.