Provinces should conduct own foreign affairs
THE ability to conduct foreign affairs is a defining characteristic of an independent, sovereign polity. This is why central governments, even in federations, tend to monopolise the function, at the expense of sub-national governments. But that is not the whole story.
It is an unofficial and, moreover, academic understanding which, in South Africa’s case, is not entrenched in the Constitution. There are also international examples of sub-national units conducting at least some of their own foreign affairs.
This leaves room for opposition-controlled provinces in South Africa to make a radical push for more decentralisation.
The Western Cape is the only such province, and it has little in the way of excuses not to do so.
Around November 21, 2023, Parliament voted to break diplomatic ties with the State of Israel. Somehow, I am told, this is not binding, and the executive can ignore Parliament on this score. I have my doubts.
South Africa does have a nominal separation of powers, but this does not apply between Parliament and the executive in the same way that it does between those two branches and the courts. This is because the executive is drawn from the legislature – South Africa is, in large part, a constitutional democracy.
In other words, the executive has no freedom to ignore a parliamentary instruction. If it did disobey Parliament, that would amount to an automatic vote of no confidence in the incumbent Cabinet. Whether the resolution Parliament adopted as regards Israel is a recommendation or an instruction is a different matter.
As far as I am concerned, the South African central government has decided to break ties with Israel. The ill-considered accusation of genocide that South Africa is levelling at Israel in the International Court of Justice does not help matters.
And, lest we forget, in addition to siding with (and hosting) Hamas against Israel, the South African government also finds itself on the side of Russia in its invasion of the Ukraine.
The Western Cape, generally, does not share the insane foreign policy views of the central government. The Western Cape seems to position itself closer to the West than the ANC does in Pretoria.
The people who live in the Western Cape have consistently – and without exception – rejected the ANC government in each of South Africa’s past six general elections. South Africa is a federation, and sub-central units conducting their own foreign affairs in federations are not unheard of.
The Canadian province of Quebec and the Belgian provinces of Flanders and Wallonia have their own foreign offices. It is therefore not out of the question for sub-national spheres of government in federations – of which South Africa is one – to conduct their own foreign affairs, at least partly.
This is even more the case, given that the Constitution does not explicitly reserve all foreign policy business to the exclusive domain of the central government. The central government, under section 231 of the Constitution, has an exclusive mandate to engage in the “negotiating and signing of all international agreements” that are binding on South Africa as a whole.
The Western Cape – and any other South African province, but primarily the Western Cape because it is the only province not governed by the ANC – could, if it wanted to, take the initiative in setting up a foreign office with a foreign affairs minister, who would be responsible for the foreign and international dimensions of their provincial (and municipal, where appropriate) competencies.
In Belgium, the principle is known as foro interno, foro externo. If the Western Cape takes the initiative, it will empower other provinces that might be governed by opposition coalitions from 2024 to take similar steps when the time comes.
The Western Cape has something called the Directorate of International Relations of the Department of Economic Development and Tourism. It states its own mission strongly, and along precisely the lines I am advocating, as being “to promote sound international relations, provide strategic advice and manage protocol”.
If a province cannot sign binding international agreements, what would a real Western Cape Foreign Office conceivably do?
A provincial foreign office could be at the forefront of representing businesses from that province to international governments. It would also be the Western Cape government representative to foreign businesses looking for a new place to invest in. This seems to be the primary concern of the Directorate of International Relations.
Western Cape Premier Alan Winde recently led a delegation to the US, on behalf of the provincial government, to “promote the Western Cape as a trade and investment destination of choice (and) assure the US government that the province remains committed to the Africa Growth and Opportunity Act (Agoa)”. The Solidarity Movement, a non-governmental group of organisations, has been able to conduct its own foreign affairs, having set up relationships with governments in Hungary and South Tyrol. If the Solidarity Movement can do it, a constitutional institution like the Western Cape Provincial Government has no excuse not to do the same.
Some might claim that foreign states would refuse to engage with anyone except the central South African government.
This is a textbook idea, but probably not reflective of reality. Besides, the decision lies with the foreign governments. If they did not wish to engage with the Western Cape, then they need not engage. This does not do anything to harm the argument that the Western Cape must open the door.
The central government will probably challenge provinces attempting to conduct their own foreign affairs. That is to be expected, and not necessarily a bad thing. The great federations of the world – the US, Canada, and Australia – had their characters largely forged in the battleground of courtrooms.
In South Africa, there is a dearth of federalist litigation, despite the federal nature of the Constitution. The Constitution is replete with ambiguous provisions relating to the division of powers between the spheres of the government. The ambiguity should be constructively exploited by provinces in favour of federalism.
If South Africa’s provinces began conducting their own foreign affairs, the necessary litigation might be given a kickstart. Perhaps then, federal decentralisation would finally begin to receive the attention it so desperately needed, at a time of state collapse.