As far as rhetorical support for federalism is concerned, South Africa has had two main political offerings over the past three decades: the Democratic Alliance (DA) and the Inkatha Freedom Pary (IFP). Both now occupy central government portfolios of relevance to decentralisation – will they rise to the occasion?
In Cyril Ramaphosa’s Cabinet announcement late on the evening of Sunday, 30 June, the DA bagged six posts and the IFP two – of which one is crucial.
On the DA’s roster are the portfolios of Agriculture; Basic Education; Communications and Digital Technologies; Forestry, Fisheries, and the Environment; Home Affairs; and Public Works and Infrastructure. It also scored a handful of deputy ministers elsewhere.
The IFP received Cooperative Governance and Traditional Affairs, which also subsumes the Local Government portfolio, and Public Service and Administration.
Constitutional framework
Section 99 of the Constitution empowers Cabinet members to devolve any power or function that they are to perform in terms of an Act of Parliament to a provincial or municipal executive. Acts of Parliament themselves also often empower the relevant member to delegate their functions to others.
Section 44(1)(iii) of the Constitution, in turn, empowers Parliament to devolve any of its legislative powers (the only, singular exception being the power to amend the Constitution) to provincial or municipal legislatures. Schedules 4 and 5 of the Constitution, which set the ‘defaults’ of legislative authority, would therefore not be applicable in this respect.
Pursuant to section 73(2) of the Constitution, Cabinet members are usually the ones to introduce new legislation relating to their portfolios in Parliament.
Power is in their hands
The DA
The DA now presides over six important ministries in which significant executive devolution, in line with section 99 of the Constitution, can begin to take place.
Virtually every regulatory and framework-setting function that these central government ministers possess should ideally be devolved downwards. The ministers will then be in a position to provide coordination, oversight, and support to municipal and provincial authorities where necessary.
One of the primary functions of a minister is to secure funding, and in this respect these ministers could also play an important role to ensure National Treasury sends the relevant funds to the appropriate, more local spheres.
Under no circumstances should these ministers believe that they will bring about sustainable reform with the little time they have in the central sphere. The so-called Government of National Unity is not likely to last very long. If we ignore the corruption and ideology-related forces that would likely lead to collapse, the 2026 municipal elections and the 2027 African National Congress (ANC) leadership conference alone will prove difficult obstacles to overcome.
Fantasies of progress and prosperity engineered from the top down must be put out of all of these ministers’ minds. They must instead look to the federalist principles upon which they campaigned.
The IFP
The IFP now presides over the most important state department for the purpose of devolution and federalisation. Cooperative Governance and Traditional Affairs is the portfolio responsible for the coordination of intergovernmental relations and it is from this portfolio which any devolution or federalisation legislation would ordinarily emanate.
The IFP has more experience being in a coalition with the ANC than the DA, so it is likely that it could retain this post for some time longer than its colleagues.
As the Free Market Foundation (FMF) proposes in its Liberty First: A policy agenda for South Africa’s 2024-2029 parliamentary term, there are four legislative frameworks that the new administration should adopt:
– Devolution legislation that transfers functions currently residing with the central government downwards. This would include policing, labour relations, and select items of economic policy. It could also include aspects of prosecutions and correctional services.
– Fiscal relations legislation that allows provinces and municipalities to retain a greater portion of the revenue that the South African Revenue Service generates within their jurisdictions. Provinces like the Western Cape, Gauteng, and KwaZulu-Natal should expect that most of what SARS collects within their boundaries will remain in the province. Cross-subsidisation between jurisdictions should only occur to the extent that the generating jurisdiction’s own requirements have largely been satisfied.
– Federalisationlegislation that sets out binding guidelines, particularly for the courts, on how to approach disputes about the division of powers between the spheres of government. The South African Constitution is a federal one, but it has been treated as though it were unitary. Proactive legislation setting this right is necessary.
– Self-determinationlegislation. Section 235 of the Constitution allows self-defined cultural or linguistic communities to exercise self-determination within a territorial unit in South Africa, but legislation is required to operationalise this right. It would be best to adopt overarching legislation that can be unilaterally invoked by any such community. However, legislation could also be adopted for every community in particular. These might include the Zulu community living on Ingonyama Trust land or the Afrikaner cultural community of Orania in the Northern Cape.
In its Public Service and Administration portfolio, the IFP minister should also devolve significant executive responsibilities over the civil service downwards – allowing provinces and municipalities more control over central government officers in their jurisdictions – in accordance with section 99 of the Constitution.
‘It’s complicated’
There are always reasons to do something or not to do something. Ultimately, most things that matter are complicated. But it is precisely for this reason that values and principles exist: to help one navigate through complexity.
Priming South Africa’s existing legislative and fiscal framework for substantive federalisation will be hard work, but this is no less true for other things the parties say they will do, like fixing South Africa’s infrastructure or ensuring better outcomes in basic education. Everything worthwhile is difficult.
Both the IFP and DA have long dedicated themselves not merely to the idea of devolution, but to outright federalism as a desirable form of government. The Constitution has met them halfway and waits with its hand extended. The power lies with the DA and the IFP in these portfolios, so ‘the central government will not allow it’ is no longer an excuse they can fall back on like they have done for the past 30 years.
Just as they will defer to their ANC colleagues who have control over other portfolios, they would be right to expect deference from the ANC when it comes to matters within DA or IFP portfolios.
‘The ANC won’t allow it’
Banish the thought, some might say, however, that the ANC would ever allow any such devolution or federalisation. I am one of those ‘some.’
Both the DA and IFP were warned (and warned, and warned, and warned, and warned) by myself and others to not go into an inequitable coalition with the ANC, where the latter controls the majority of Cabinet posts. This is because, among many reasons, the former would not have enough leverage to pursue whatever reform agenda they might have. (‘There needs to be compromise’ always seems to only operate in favour of the ANC.)
Since the 29 May general election, however, both the DA and IFP replied to these warnings with: ‘No, we think we will have enough leverage to pursue our agenda.’
Whether or not the ANC will allow devolution or federalisation is an entirely political (not legal or policy) question that the DA and IFP believe they have answered affirmatively.
The FMF’s proposals above are purposefully framed taking the constitutional status quo into account. If we believed ‘anything is possible,’ we would have recommended significant changes to the Constitution itself. What is proposed is practical.
At this point, it would be a futile exercise to continue second-guessing the DA and IFP from outside government on whether they do or do not have the leverage or pull to bring about real reform.
‘If you say so,’ is therefore my response. ‘So here is the roadmap to decentralisation.’
The test to determine
The rubber has met the road: It is now that it will be decided whether the DA or IFP’s apparent dedication to political decentralisation has been sincere, or merely rhetorical, in the comfort of the opposition, to garner votes.
If not now, then when? Neither the DA nor IFP will ever win an election with an absolute majority in their own right. That has not stopped them from advocating federalism. This can only mean, implicitly, that they would pursue federalism and decentralisation when they have the legal power to do so.
They now do.
Like others, I have held the suspicion that these parties’ dedication to decentralisation only extends so far as it is not they who are required to decentralise their power: They only want decentralisation when they will be the beneficiaries of it in provincial and municipal governments – but when they are in the central government, they will tend to oppose it.
This is not a dedication to decentralisation, but naked opportunism. They are now within reach of dispelling any such suspicion.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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Image: Sir Donald Currie and Messrs. A.S. and G.G. Brown, Public domain, via Wikimedia Commons