South Africa: Reluctant Federalists

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South Africa Reluctant Federalists

• Richard Simeon

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Some South Africa/Iraq parallels

• Colonial past
• Non-democratic rule by one minority
• Close to civil war
• International context fostered conflict, hindered
  resolution
• Deeply divided society
• Yet South Africa is one of the most successful
  democratic transitions are there lessons for
  Iraq?

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History, Context

• Colonialism, white domination
• Culminating in Apartheid (total separation of
  races) in 1948
• Denial of citizenship, removals, creation of
  Bantustans, banning of parties, etc.
• Liberation struggle approaching full civil war
  in 1980s.
• Stalemate, end of cold war, leads to start of
  transition negotiations.
• Both sides know they cannot win
• Few predict success

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Why the fear?

• Deep division, inequality between black and white
• Worry that when white rule ended, ethnic/tribal
  differences among blacks would divide the
  country.
• White elite had kept a lid on these potential
  conflicts but also exploited them in divide and
  rule strategy

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Basic elements of the constitution

• Pure proportional electoral system
• Bicameral system National Assembly and National
  Council of the provinces
• Presidential but President is leader of largest
  party in parliament
• Like British Prime Minister, but does not sit in
  the Assembly
• Powerful, strong Bill of Rights Note includes
  social an economic rights, derogation clause
• Strong, independent Constitutional Court
• Set of independent institutions to protect
  democracy Electoral Commission, etc.

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The transition

• Preliminary trust-building the fish hook story
• Unbanning of black parties release of Mandela
  and other prisoners.
• Difficult negotiations lead to Interim
  Constitution (1993) final constitution can only
  be legitimate after democratic elections
• First elections, 1994. ANC majority
• Members of the national Assembly and NCOP
  constituted as Constitutional Assembly
• Final constitution 1996
• Certified by Constitutional Court

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Reconciliation and the rainbow Nation

• ANC had never been a black nationalist party
  always emphasized a non-racial South Africa
• Many whites and Indians participated in the
  struggle
• Establishment of Truth and Reconciliation
  Commission. Confront the past, but move on
• This was no accident reconciliation message is
  communicated extensively, through all media.
  Examples.

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South African Diversity

• Major division is black white 85 per cent
  black
• Diversity within black community many tribal
  groups (two largest Xhosa, Zulu).
• Diversity in white community Afrikaans and
  English
• Other significant groups colored, Indian
• Language 11 official languages
• Nine provinces diverse in size, wealth,
  demographic makeup

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Managing diversity

• History dominant whites manipulated tribal
  identities as part of divide and rule strategy
  created Bantustan homelands
• In transition, some argue for a SA organized
  around tribal/language identities
• ANC argues for non-ethnic, non-racial South
  Africa, with aim of transcending difference not
  reinforcing it.
• Question which is the most effective strategy?

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Result Recognition without Empowerment

• South Africa constitution recognizes and
  celebrates diversity ethnic, religious, etc.
• But seeks to express these differences in the
  private sphere, and to minimize their expression
  in the public, governmental sphere
• Why? Belief old regime manipulated tribal
  identities to divide and rule fear of
  politicizing ethnicity

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Major success

• Many feared once White rule ended, internal
  conflicts among Blacks would escalate
• One major example movement for autonomy of Zulu
  people in Kwa-Zulu Natal. Considerable violence
• Today linguistic/tribal conflict has declined,
  not increased
• Issues today primarily economic, class issues
• Question for Iraq Is it possible to shift
  primary debate from sectarian questions to other
  issues?

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The constitutional process

• Three stages Interim Constitution, 34
  Principles, elections, final constitution
• Constitution as pact settlement of a
  long-lasting conflict and as a framework for
  governance in the future. Possible tensions
• Constitutional Assembly negotiation among
  elites, but extensive public education and
  participation essential to long term success
• Effect disempowered citizens learn about voting,
  rights, rule of law

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Past and present in the SA Constitution

• We the people
• Recognize the injustices of our past
• Honor those who suffered
• Respect those who have worked to build and
  develop our country
• Believe that South Africa belongs to all who live
  in it, united in our diversity
• Purpose to heal the divisions of the past and
  establish a society based on democratic values,
  social justice and fundamental rights
• Note similar words in Iraq constitution how to
  make them real?

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Power-sharing

• Constitution provides for initial period of
  power-sharing
• A party that wins 20 per cent of the vote gets a
  Deputy President
• One that wins five per cent of vote gets a
  cabinet minister
• Soon ends, but assisted the transition
• Reality despite PR, SA is a one-party dominant
  state, because ANC, party of liberation, has
  massive support in black community
• Wins almost three quarters of seats in last
  election which was free and fair
• Worries dominant party may feel it owns the
  system

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Is it federal?

• Like Spain and India the South Africa
  Constitution does not declare South Africa to be
  federal
• But it is federal in form
• Three orders of government spheres
  national, provincial, local.
• Each with assigned powers
• Each independently elected
• Each protected by the Constitution, and the
  Constitutional Court
• But it is a highly centralized form of
  federalism

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The federalism debate

• Central to the constitutional pact.
• ANC hostile to federalism
• Too closely linked to Apartheid and Bantustans
• Could institutionalize tribal and linguistic
  differences that ANC wished to overcome
• Could limit capacity of central government to
  undertake the massive developmental and
  redistribution challenge that it faced
• Compare with ideology of Congress party in India

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White community

• Wants federalism why?
• Fears tyranny of majority wants to limit powers
  of central government
• Prefers a plural South Africa organized around
  groups
• Along with strong Bill of is their bottom line in
  negotiations
• ANC reluctantly agrees

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Federalism in SA/1 Chapter Three of Constitution

• Three constitutional spheres of government,
• National, provincial, local
• Are elements in a single system
• Goal is cooperative government
• The spheres are to be distinctive,
  interdependent and interrelated
• All are obligated to preserve the unity and
  indivisibility of the Republic no right to
  secession

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Federalism in SA/2

• Each sphere must
• Provide effective, transparent, accountable
  government
• Respect the status, institutions, powers, and
  functions of government in the other two spheres
• Not encroach on the powers or integrity of other
  spheres
• Must co-operate with each other in mutual trust
  and good faith by

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Federalism SA/3

• Fostering friendly relations
• Assisting and supporting one another
• Informing and consulting with each other
• Coordinating their actions
• Avoiding legal proceedings against each other
• (Appeal to Constitutional Court only as last
  resort)
• These may only be ideals, but are they relevant
  to governments in a federal Iraq?

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Division of Powers

• Follows German model few areas of exclusive
  powers most are concurrent
• Exclusive provincial powers are minor
• And even in these areas, the national government
  can intervene to protect national security,
  unity, national economy
• In shared powers, national government is
  paramount
• Little provincial autonomy provinces administer
  national laws. Little law-making on their own

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Fiscal federalism

• Central government dominant controls all major
  revenue sources
• More than 90 per cent of provincial revenue is
  transfers from the center
• But Constitution guarantees an equitable share
  of revenue to provinces to carry out their roles
• Finance and Fiscal Commission advises on these
  shares
• May be conditional or unconditional distribution
  based on need

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Representation of Provinces at the Center

• NCOP modeled on Bundesrat
• Provincial voice at center, designed to ensure
  national laws take account of provincial needs.
• Vote as a block, on instruction from provinces on
  Bills directly affecting them
• Requires super-majority in National Assembly to
  override NCOP
• Not very effective

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Intergovernmental Relations

• Governed by legislation
• Regular meetings of national and provincial
  executives, including national President and
  provincial Premiers
• National Department of Provincial and Local
  Government seeks to manage process
• But tends to be top-down center instructs the
  provinces

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Safeguarding the system

• Constitutional Court
• Has final power of judicial review of
  constitutionality of any law
• Final arbiter of intergovernmental conflicts
• But may have bias towards the center Western
  Cape electoral law
• Monitoring, intervention powers of the center.

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Results

• This is a very highly centralized system
• Quasi-federal
• Very limited provincial autonomy, room for
  innovation

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Provincial Capacities

• Provinces are weak in many ways
• In political capacity little strong presence in
  minds of citizens
• One-party federalism ANC dominant in national
  government and in all provincial governments
• Provincial Premiers deployed by ANC national
  executive little autonomy
• Responsibility is up to the national
  government more than down to their
  legislators and citizens

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And in bureaucratic and fiscal capacity

• Several provinces lack human resources ability to
  carry out assigned functions
• Inherited old, corrupt, incompetent Bantustan
  bureaucracies
• Problems with training, competence, corruption
• Hence often inability to deliver services
• Capacity building a high priority
• Monitoring, supervision and support from the
  center is critical
• (But note many of same problems would appear if
  the national government provided all services)
• A major question for Iraq building capacity in
  regions

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Local Government

• Provided in Constitution.
• Implemented only recently.
• Some believe that democratic local governments
  can better serve citizens than provincial
  governments.
• But many local governments have even greater
  capacity problems than provinces
• Relationship between local government and
  provinces and local government and center are
  complex
• Desire to simplify system

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Future of Federalism in South Africa

• Three scenarios currently under debate
• First, abolish provinces
• Second, turn them into administrative bodies,
  responsible to center without elected
  legislatures
• Third, strengthen provincial capacity
• The debate SA established 3 levels of
  government was that one too many?
• What is value added of provinces? Are local
  governments better placed to advance democracy
  and effective government?
• ANC to debate issue at its national convention
  DPLG has started a public consultation process

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Future of Federalism/2

• Some evidence of increasing regional identities
  and interests
• Regional divisions within the ANC may grow
• Regional politicians may become more jealous to
  maintain their powers
• Regional identities may grow
• ANC dominance may end by splits but likely not
  along regional lines
• Larger role for strong provinces Gauteng and
  Western Cape
• Could South Africa follow the Indian pattern
  starts out highly centralized then becomes more
  federal?

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Conclusions

• The success of the SA transition to democracy
• Of which federalism is only a part
• Reasons
• Leadership does it take a Mandela?
• International context
• ANC commitment to democracy, and to
  multi-racialism since its start
• Prior tradition of rule of law
• Shared South African identity