This is the fifth and final article in a series on the topic of federalism in South Africa, past, present, and future. Each article may be read as a standalone piece, but they are best read chronologically.

Albie Sachs and Kader Asmal’s assurances during the transition that a bill of rights with functionally independent courts would be sufficient to safeguard the rights of the individual and of minority groups have proven to be disastrously wrong. 

It was on the strength of these assurances that South Africa adopted a model of so-called ‘cooperative federalism’ – which is to say, not really federalism at all, but an admittedly decentralised unitary arrangement. This has been shown to be inadequate, given the realities of the South African situation.

An emerging reality 

The hopelessness that this dispensation created is slowly but surely being replaced with a determination to succeed despite the central government’s concerted efforts to destroy South Africa. Increasingly, South Africans are shrugging their shoulders at government. 

Soon, a minority of South Africans will go to the polls to elect their municipal governments. During general elections, a minority central government has been successively returned. This shows that a majority of eligible voters have shrugged their shoulders at the political process laid at their feet, and are trying to get on with life over and above it. Alongside collapse, irrelevance is a significant threat staring the various spheres of government in South Africa squarely in the face.

A prominent movement for the unemployed in the Western Cape, the Langeberg Unemployed Forum, in desperation, has thrown in its lot with the Cape independence movement, no longer feeling that negotiating with Pretoria to relax labour laws will yield any results. Xolile Mpini, on behalf of the Forum, argues convincingly on Twitter that a one-size-fits-all labour policy simply does not work.

There are more examples. The Covid-19 lockdown measures did not meet any purchase in townships, as with just about any government edict. South Africa’s townships have, since long before the transition, operated as if South Africa were a federation. While these areas depend on certain important services funded by the central government, labour department inspectors avoid township businesses if they know what is good for them.

The well-off Afrikaner community, no longer exclusively white, has similarly started shrugging its shoulders after a century of psychological dependence on government. Ons sal self – ‘we’ll do it ourselves’ – is a popular new motto associated with the 500,000-family-strong Solidarity Movement, which now has at least three higher education institutions under its banner, among a host of community security, charity, religious, and other initiatives.

Orania, the private community everyone loves to hate for no good reason, furthermore, has no secessionist desires. It acknowledges that it is part of the South African polity. At the same time, however, the central government features virtually nowhere in this private town, and would presumably only become relevant in the event of serious crimes. In all other matters, the local community makes all relevant decisions.

For anyone who can afford it, private security and neighbourhood watches have all but replaced reliance on the South African Police Service (SAPS). It is common nowadays, after a crime has been committed, for victims to either roll their eyes or give a light chuckle when someone asks whether they reported it to the police. Provision for safety and security has been almost entirely localised.

Federalism is emergent in South Africa. The central government is recognised as a lawful authority but is increasingly relegated to the background, and where applicable, completely ignored. South Africa might in the future become a case study of a society where federalism was not initially negotiated among the elite but in fact came about from the ground up. But this de facto emergence would require some de jure recognition, lest it develop into secessionism, as was the case in Natal.

Very few want to abolish the country that is South Africa, for which a lot of sentimentality exists. The economic interdependence of all of South Africa is also a fact that has been widely recognised since the 1930s. Those in Natal who favoured secession favoured it only as a means to re-enter South Africa on a more federal basis. However, patience is not unlimited – as Thabo Mbeki said during the late 1980s – and the central government’s ability to impose its will is rapidly deteriorating, which must bring it down a peg or two from its current high horse of arrogance. 

Commenting on the politics of the transition and constitutional negotiations, James Hamill wrote in 2003 that the African National Congress (ANC) was willing to make various concessions to the National Party (NP) and other negotiating parties because it was simply biding its time until it gained control of South Africa’s police and military forces. In the late 1990s and 2000s, this was a powerful tool in the arsenal of the centralist ANC. 

But thanks in no small part to the ANC’s own efforts, both the police and military are today mere symbols of power, rather than being powerful themselves. Right after the July 2021 riots, for instance, our televisions were showing troops half-heartedly walking around largely quiet streets telling law-abiding citizens to leave the area. The police themselves were hunkered down in their stations during the riots, as ordinary heroes defended their property and communities.

We tell ourselves the police are out there, and therefore we comply with often nonsensical State edicts, but the reality is far more basic. As the liberal Frenchman, Etienne de la Boetie, theorised in his The Discourse of Voluntary Servitude (1577), our subservience to the State is by and large voluntary.

In the absence of some de jure recognition, South Africa’s emergent federalism might develop into an emergent statelessness. Statelessness has its own appeals, chief among which is the absence of a centralised, potentially tyrannical government apparatus. But statelessness is not what South Africans, if you ask them, would want, nor is it something the international community would soon recognise. Secessionism, on the other hand, is a foregone conclusion if the ANC does not come to the negotiating table to formally federate South Africa. 

Indeed, if the ANC does not, then secessionism is an entirely reasonable avenue, as discontented South Africans cannot be expected to wait forever for the ANC to ‘reform itself’ or for the Democratic Alliance to govern nationally.

The ANC’s choice, therefore, is simple: Peaceful federation, or dissolution, whether in the form of chaotic statelessness or violent secessionism. 

South Africa will not go on the way it presently is. The most immediate reason is that the people of the Western Cape simply will not allow it. Whatever one’s view on Cape independence, the polls indicate that just under a majority of Western Cape adults favour secession, and this trend has no reason to change for as long as the ANC remains in power in Pretoria. In the absence of a surprise electoral defeat of both the ANC and the Economic Freedom Fighters (i.e., both, together, obtain fewer than 50% of the seats in the National Assembly), which is exceedingly unlikely, the calls for secessionism will increase, and might spread beyond the Western Cape.

The ANC has always opposed federalism, but it has no way to quell a secessionist movement. It has no notable military or police force. It has no power of persuasion or charismatic leaders who could unite the country in the face of the disaster it has wrought upon us all. It controls very little directable economic might. To protect the integrity of South Africa, and thus the international prestige of the ANC, it will in time have no choice but to federate.

Distributive justice

In the 1980s and 1990s, the most important, sincere argument against federalism was that of so-called ‘distributive justice.’ Had South Africa federalised, the argument went, there would have been a few extremely wealthy provinces and many extremely poor provinces. The wealthy provinces would have hidden behind federalism to hoard their wealth while the poor provinces collapsed. 

In 2021, the superficial details of this argument remain largely true. But the honeymoon is over. South Africa has been experimenting with the unitary arrangement for almost three decades, yet the same regions remain wealthy, and the same regions remain poor. Centralisation did not yield the distributive gains the centralists expected. Instead, it yielded exactly the abuses that the federalists warned about: protection for minority rights is unknown and respect for individual rights are quickly evaporating, with Parliament in the process of destroying one of the most important constitutional rights, that to private property. 

This is to say that too much water has passed under the bridge for the centralists to come back with the same tired argument that federation would allow certain regions to hoard wealth at the ostensible expense of poorer regions. The centralists have had their chance – they partied, celebrated, drank, and ate away every opportunity for growth. Even those who were not corrupt – the academics and journalists – cheered from the sidelines as constitutional institutions were destroyed, as when the Constitutional Court allowed the mass expropriation of mineral and petroleum rights in 2013 or when government threw all constitutional caution to the wind with its response to Covid-19 in 2020. 

Poorer regions, in a competitively federal South Africa, will be disciplined by reality and not protected by faraway corrupt elites. To succeed, they will have to free their internal markets and incentivise investment. All South Africa’s regions have something to offer – poverty is not part of their environmental genetics. They can succeed if they decide to. And federalism will take away the incentives for failure – they will be forced to succeed or to collapse.

The South African project

Asmal and Sachs, and John Merriman and Jan Smuts before them, all argued for the South African project while rejecting federalism. Both groups argued that we must have faith in our fellow South Africans at the ballot box – democracy will discipline government. Asmal and Sachs additionally argued that a supreme constitution, a justiciable bill of rights, and an independent court system would be sufficient checks on the abuse of public power.

All of them have been proven wrong.

There should be no doubt that constitutional democracy, constitutional supremacy, recognition and protection of rights, and an impartial judiciary, are indispensable, even in a federal system. But they are not adequate safeguards in a heterogeneous country where there exists a penchant for strongman politics in almost every segment of the population. 

It was not that long ago when PJ Meyer, a chairman of the Afrikaner Broederbond and later head of the South African Broadcasting Corporation, in his Die Vooraand van Ons Vrywording: Die Afrikanerdom, Een en Verdeeld (1941), argued against ‘liberal’ parliamentary democracy in favour of a father-figure-like, ‘Krugerist’ (his words) State President – the ‘natural leader, called by God and clothed with the necessary authority to rule the volk according to His Will and not according to the whims of groups of atomistic individuals.’ PW Botha, in the 1980s, almost achieved this decisive kind of centralised leadership when he made the office of State President into a super-institution controlling all notable levers of political power.

Strongman politics in the centralist ANC have also remained popular since the 1950s. The precolonial notions of governance by consensus are nowhere to be found in this ostensibly Africanist ruling party. The ANC has seen fit to regard a collapsing electoral mandate as reason enough to follow through with its plans to change the country’s Constitution and seize property on arbitrary grounds. It more often than not ignores overwhelming public opinion against its policies, because it feels entitled to press ahead with whatever is adopted at its own policy conferences. 

Centralised governance is poison to prosperity in South Africa, no matter who is in charge. And the boilerplate institutions meant to protect against abuse have been steadily and predictably taken apart since the Constitution was adopted.

The supremacy of the Constitution has been undermined not only by the government, but also by courts that are occasionally driven by an ideological commitment to Transformation, which of necessity requires a strong central state to engage in social engineering across all spheres of government. In other words, the ordinary meaning of the text of the apparently supreme Constitution has been, certainly not completely but to a notable extent, replaced by an alternative ideological vision. This is how many thinkers can today without hesitation (but incorrectly) claim that the Constitution allows racial affirmative action.

The justiciable Bill of Rights has been remarkably successful in guaranteeing freedom. Freedom of expression, although always under threat, is today, even in South Africa, in more danger from civil society pressure in the form of cancel culture, than from a tyrannical government, largely because of the reverence the Bill of Rights generally enjoys. To a considerable extent, all South Africans have respectable levels of personal and political freedom. 

Private property rights are, unfortunately, the exception to this generally good story. And it is regrettable that, because private property rights are perhaps the most important rights to be guaranteed in the Bill of Rights, failure to respect them stands to render the entire Bill of Rights largely pointless. The rights to privacy and free expression, for instance, are meaningless when the proprietary basis they stand upon is ripped away.

There is a threat to the independence of the court system, in addition to the ideological capture that is continuously in progress. The Legal Practice Act and its associated new Legal Practice Code are geared toward bringing more of the formerly independent legal profession under the ultimate control and direction of government, in particular the Department of Justice. This, in time, will have a marked effect on what is left of the independent-mindedness of South Africa’s judges. The Land Court Bill is particularly brazen indicating that independent judges are not wanted at all for this new court, but judges with a pre-existing commitment to certain ideological convictions shared by the ANC.

I regard myself as one of our Constitution’s most ardent defenders, and that will not change any time soon. Taken as a whole, the South African Constitution can stand among the best in the world.

I also remain a firm believer in the South African project. South Africans have been part of the same state for more than a century, and annual research by the Institute of Race Relations puts it beyond doubt that South Africans across racial and ethnic lines get along well and regard one another as equal partners rather than opponents. 

But we cannot deny that the South African project is being held hostage by the ANC and its ideological compadres, and for as long as an ANC-centred government is returned by a minority of the South African electorate, the project is doomed at worst, or delayed indefinitely at best. 

Perhaps the best way to free the hostage is to federate as soon as possible.

Indeed, dissolution of the unitary state would also not mean the end of the South African project. For many years before the Cape, Transvaal, Natal, and Orange Free State unified, they were collectively regarded as ‘South Africa,’ and their inhabitants interacted with one another as if there were no borders separating them. Substantive, competitive federalism might have the same effect.

Reviving the federal cause

But before complete dissolution of South Africa is brought about – and it will happen all by itself if the alternative is not attempted – federalism must be revived as a cause among the South African commentariat as it once was during various periods in our history discussed in the previous articles of this series. The prospect of federalism brings much to be excited about.

Far from a racial or ethnic federation, Donald Horowitz suggested in his A Democratic South Africa?: Constitutional Engineering in a Divided Society (1991) that ‘South Africans can benefit from [federalism] without in any way conceding the utility of devolution to homogenous units on the homeland model.’ He listed the four ways a federal arrangement could benefit South Africans on a non-racial basis: ‘an accommodative electoral formula,’ ‘arenas in which politicians are socialized in dealing with conflict […] before they must do so at the national level,’ ‘[dispersal of] conflict by proliferating the points of power vertically,’ and ‘[supporting] the maintenance of democracy by making hegemony more difficult to achieve.’ 

Horowitz elaborated that if South Africa adopted federalism, it would ‘proliferate the points of power and so make control of the center less vital and pressing,’ thus averting ‘the zero-sum quality of the stakes’ of a general election. This lowers ‘the high temperature of politics.’ As classical liberal economics professor Alexander William Salter recently pointed out in the same vein on Twitter, ‘Liberalism is about lowering the stakes of politics.’ Federalism is good, liberal politics.

Furthermore, argues Horowitz, federalism is uniquely able ‘to help counter drives toward hegemony by any one group over the entire state.’ To advance this point, Horowitz mentions that Apartheid itself might have been avoided had South Africa opted for a federal arrangement in 1910. Because of its unitary nature then, South Africa was, as it is today, a one-party dominant state. But if, in a federal system, the formation that controls the centre and that which controls a region or regions are different, the imposition of a ‘one-party hegemony becomes much more difficult.’ Where there is generous devolution, Horowitz submits, it is more likely to avert rather than spur on ‘ethnic separatism,’ meaning federalism in a divided society is more uniting than it is divisive.

It would be better, argues Horowitz, to allow a region where a certain political formation dominates some measure of self-determination if that formation does not form part of the governing coalition at the national level. By excluding such a formation from the central government, and denying it substantial control over its own regional affairs, there is a significant risk of alienation. We see this today in the Western Cape, where the majority of that electorate has been excluded from national government for decades, and it is denied substantial provincial autonomy at the same time. There should be no surprise that a Cape secessionist movement exists.

Horowitz continues on this point:

‘Where a territorially based ethnic minority is politically out of step with other groups, uncompromising centralism in the guise of democratic majoritarianism will inevitably suppress that minority and provoke a reaction. Where, however, regional autonomy or federalism – on a territorial and not an ethnic or ‘homeland’ basis – allows such minorities nationally to produce majorities locally, the result is unlikely to be an aggravation of separatism.’

The federal option has been denied to Western Cape dissidents for years, and it seems they have had enough. This discontent will not abate. But if the federal option does become available, the separatist sentiment might, very likely, fall away.

The achievability of federalism

One might look at South African history and at the current stance of the ANC and conclude that federalism is simply not practical politics. The Cape Independence Advocacy Group has certainly come to this conclusion. They do not believe the ANC would ever allow a federal arrangement to weaken its power, and question whether federalism would be a sufficient brake on future centralist impulses.

The existence of the Cape independence movement is the greatest tool in the arsenal of federalists. The only thing the ANC would hate more than placing limitations on the power of the central government, would be for a significant part of South Africa to break away. That moment would be the end of the ‘miracle’ narrative that the ANC has been selling abroad. The Mandela magic that many foreign observers still associate with Africa’s oldest liberation movement would find itself in serious trouble. A successful secession – something the ANC does not have the tools to stop – would be intensely humiliating to the party, and failing to keep the country together would allow other parties to make short work of the ANC in the general election that follows such a separation. 

The ANC knows that federation is the lesser evil, and that it can spin the federalisation of South Africa into an ANC success story.

This is not to say getting the ANC to this point will be easy. Anything but.

South Africans will do well, however, to understand that the ANC responds to real pressure. One should never assume that the ANC will only allow for federalism or devolution over its own dead body. Its own desire for self-preservation outweighs any theoretical or ideological opposition it might exhibit towards federalism. If there is sufficient pressure and the ANC faces great enough embarrassment if it does not concede, it will concede. 

The state of the discourse now is lacking, however. There must first be a groundswell for decentralisation, either across the country, or in concentrated but important pockets and areas, like the Western Cape, Gauteng, and KwaZulu-Natal. The groundswell must also have an intellectual dimension, like the centralist cause of the ANC in the 1980s and 1990s had an intellectual dimension that rationalised it. South Africans must start talking and writing about federalism as a serious matter of public and constitutional policy.

This is how we get to a competitive federation. How do we keep it?

A federalised South Africa will take much more than a few constitutional amendments. South Africa will need more than federation – it will need federalism.

The seeds of federalism have already been sown in the hearts of many South Africans, without them being able to articulate it. The township businesspersons who set up shop in defiance of contextless central government edicts do not think of themselves as federalists, but as people simply trying to eke out a living while some faraway officials engage in a largely academic and suburban enterprise of formulating inapplicable rules. When Solidarity establishes another university, it does not do so because it is committed to decentralisation, but because it has identified a demand among its members that cannot be served by the central Department of Higher Education.

The task of conscious federalists is to positively articulate these inarticulate premises underlying much of what is already happening in South Africa.

The federal agenda must be revived and pursued, this time, uncompromisingly. During the unification of South Africa and during the transition out of Apartheid, federalists allowed themselves to be railroaded. 

That cannot be allowed to happen again. Unlike then, federalists now need to organise, strategise, and advocate, without fear or equivocation. Federalists must expect to suffer much abuse, particularly in the age of political correctness, but our understanding of the fact that South Africa really has no other choice must weigh more than our desire to seem popular or diplomatic. 

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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Martin van Staden is the Head of Policy at the Free Market Foundation and former Deputy Head of Policy Research at the Institute of Race Relations (IRR). Martin also serves as the Editor of the IRR’s History Project and its Race Law Project, and is an advisor to the Free Speech Union SA. He is pursuing a doctorate in law at the University of Pretoria. For more information visit