For the first time since the 1990s transition, federalism is back on the lips of many South Africans. In the last year alone, a Western Cape Devolution Working Group has been formed and AfriForum has published a documentary on the topic. The revitalised interest in federalism raises an important question: where should federalists focus their energy?
Most federalists simply assume – and understandably so – that if we are talking federalism, we are talking about South Africa’s provinces gaining greater authority.
Having studied the Constitution, though, it seems quite clear to me that the greatest potential for federalism lies at the municipal level.
The vertical division of powers set out in South Africa’s Constitution can be understood in this way:
The drafters created a two-sphere federation – as federations tend to be – with a central government and a subnational tier of governments. The central government and the subnational governments were each given wide authority.
At the very last moment before the Constitution was adopted, an additional sphere of government was wedged between the central government and the subnational governments. This sphere was given very limited authority and appears ‘tacked-on’, almost as an afterthought.
The real power of municipalities
This is not quite how it played out in reality, of course. But it is a helpful way to think about how provinces fit into South Africa’s constitutional scheme. As a centralised federation, most governing authority in South Africa is vested at the centre. But as a federation, the subnational sphere also has a wide scope of authority. This subnational sphere, however, is not the provincial sphere, but rather the municipal.
It is counterintuitive, but South Africa’s municipalities are where the residual power not vested in Pretoria truly lies.
According to sections 156(4) and, in particular, (5) of the Constitution, municipalities have general constitutional authority. This effectively means that they may do whatever is necessary to fulfil their constitutional mandate, which is broad and includes the promotion of ‘social and economic development’ (section 152(1(1)(c)).
Provinces do not have comparable general constitutional authority. They have a limited, enumerated list of things that they may involve themselves in. Any other functions must be expressly delegated to them from the centre or from municipalities.
And although the Constitution allows the provinces to adopt their own provincial constitutions, this is something of a bait-and-switch. A provincial constitution is severely limited in what it may make provision for, and is regarded as being of equal status to ordinary legislation passed by Parliament. For municipalities, on the other hand, the central government is under a constitutional obligation to bestow any function upon them if it relates to local government.
The central and provincial governments are also expressly prohibited from ‘[compromising] or [impeding] a municipality’s ability or right to exercise its powers or perform its functions’, by section 151(4) of the Constitution. Outside of a general reading of section 41 of the Constitution which provides for cooperative governance, no similar express provision exists for central government impeding provincial governments.
Even those who understand this tend to have difficulty translating their understanding into practice. There is an overbearing desire to shove the square peg of South African provinces into the round hole of federalism. It is understandable, because in other federations the first and second levels of government division are where authority vests. But the reality is that in South Africa real authority vests in the first and third levels.
This counterintuitive constitution has made it difficult for federalists and devolutionists to get their priorities straight.
Many federalists and devolutionists do not perceive the prestige and glory of political decentralisation in the idea of a ‘municipality’, which conjures up an image of a single city or town. The ‘municipality’ is not grand, but the expansive ‘province’ is!
In reality, of course, some of South Africa’s municipalities are the size of small countries. In terms of their surface area, some district municipalities certainly equal the size of provinces in other states. But local municipalities are also less ‘local’ than you might think: most are larger than typical American cities and are more akin to what the Americans call ‘counties’.
A similar miscalculation occurred in what was known as the Central African Federation, or the Federation of Rhodesia and Nyasaland.
When the colonies of Northern Rhodesia (Zambia), Southern Rhodesia (Zimbabwe) and Nyasaland (Malawi) unified into one state in 1953, all the most promising politicians and officials from the colonies sought out and acquired transfers to the federal government. The federal government was grand!
In reality, the Central African Federation was a confederation, not a federation, which meant the power actually resided with the territories that made up the state, not the central government. This was vividly manifested when the territories tore the confederation apart in 1963 by seceding, lawfully, from the authority of the federal government, despite the latter’s protestations.
The South African municipality is grand, and deserves to be the institution that federalists focus on. Indeed, the wide authority the Constitution formally grants to it has not been fully exploited by municipal governments. It might take civic pressure to make this grant of authority reality.
Municipalities should in fact be thought of as South Africa’s real provinces. The current ‘provinces’ can be conceived of as something of a supervisory intermediary. They are the junior partner to municipalities under normal circumstances. They only become the senior partner when municipalities are unwilling or unable to fulfil their constitutional mandates, allowing provinces to intervene and place the former under administration.
Provinces are still important
Provinces as they currently exist are important, of course, at least to the extent that control over them must be denied to political parties with centralising ambitions.
Tshwane came under the control of a reformist coalition in 2016. The ANC-controlled Gauteng provincial government placed it under administration from March to October 2020. This was only rolled back through expensive and time-consuming litigation.
Provinces must, at the very least, be neutralised for the damage they could do to functional, autonomous municipalities. If parties that value federalism control provinces like KwaZulu-Natal and Gauteng from 2024, this could be significant in protecting municipalities from overbearing and abusive central interference.
Provinces can also be significant centres of support for municipalities. In a previous article, for instance, I explained how provinces could pool municipal resources and establish specialised law enforcement units that all the municipalities in that province can benefit from. But for as long as federalists and the lawyers of the opposition see provinces not as the support mechanism, but as the very vehicle for decentralisation, the federal agenda will suffer.
The province should therefore not be entirely forgotten in South Africa’s march to federalism, but the preoccupation with it must end.
Readers might be thinking that, more than the provinces, most of South Africa’s municipalities have well and truly collapsed. This much is true. This article is written with the handful of holdouts in mind, to where more and more South Africans are moving to escape the collapse.
Since South Africans are digging their trenches in these holdout municipalities, it is all the more important for those municipalities to start exercising real governing authority to protect their inhabitants from the predations and incompetence of the central government.
If a reformist coalition comes to power in 2024 nationally, or even in some provinces, it should take constitutional subsidiarity seriously and adopt national and/or provincial devolution legislation that delegates even more authority downward. For more detail on this proposal, see my 2021 peer-reviewed article for the Cato Journal.