ANC’s de­sire to tinker with prov­inces sin­is­ter

Daily News - - VIEWS & ANALYSIS - MARTIN VAN STADEN

THE ANC’s sug­ges­tion that the num­ber of prov­inces be re­duced from nine to six comes as a shock.

For­tu­nately, our con­sti­tu­tion and the rule of law do not make abus­ing the lev­ers of power that easy.

It would be un­fair to the ANC to im­ply that this is sim­ply cor­rup­tion and cheap ger­ry­man­der­ing to avoid los­ing Gaut­eng in 2019, as this pol­icy was adopted back in 2007 be­fore the Western Cape fell into the DA’s hands.

But the ANC, the old­est and per­haps most ex­pe­ri­enced demo­cratic po­lit­i­cal party on the African con­ti­nent, must surely be aware that want­ing to re­duce the num­ber of prov­inces and thereby rob the of­fi­cial op­po­si­tion of its demo­cratic man­date in the Western Cape would be per­ceived as an out­right at­tack on our con­sti­tu­tional democ­racy.

A pos­tu­late of the con­sti­tu­tional prin­ci­ple of the rule of law is that the law and pol­icy must be cer­tain and pre­dictable in­so­far as it is prac­ti­cally pos­si­ble.

With the elec­toral – in­deed, po­lit­i­cal – un­cer­tainty cur­rently fac­ing South Africa, it would be reck­less to fid­dle with the con­fig­u­ra­tion of prov­inces or mu­nic­i­pal­i­ties at this stage in our his­tory.

This con­duct in­vites un­cer­tainty and un­pre­dictabil­ity, and is thus ar­guably a vi­o­la­tion of the rule of law, and thus the con­sti­tu­tion.

South Africans would do well to re­mem­ber the le­gal games the apartheid gov­ern­ment en­gaged in to en­sure it got its way be­fore en­dors­ing the ANC’s plans.

In­deed, up to 1956, Coloured South Africans en­joyed lim­ited fran­chise in the Cape Prov­ince, but then the Na­tional Party passed leg­is­la­tion in­creas­ing the size of each prov­ince’s Se­nate rep­re­sen­ta­tion, thereby giv­ing the gov­ern­ment the req­ui­site num­ber of votes in Par­lia­ment to amend the South Africa Act, and re­move the Coloured fran­chise.

Thank­fully, how­ever, for the gov­ern­ment to ac­tu­ally de­crease the num­ber of prov­inces, it would need to go about a process to amend the con­sti­tu­tion.

Sec­tion 74(3)(ii) pro­vides that two-thirds of the Na­tional Assem­bly and six prov­inces in the Na­tional Coun­cil of Prov­inces must ap­prove al­ter­ations to “pro­vin­cial bound­aries, pow­ers, func­tions or in­sti­tu­tions”, and sec­tion 74(8) pro­vides that the pro­vin­cial leg­is­la­tures in ques­tion will need to ap­prove such al­ter­ations.

When gov­ern­ment is closer to the peo­ple and peo­ple have more op­por­tu­ni­ties to par­tic­i­pate in the daily gov­ern­ing of their lives, a coun­try is more demo­cratic. This in­evitably means de­vo­lu­tion of power to lower lev­els of gov­ern­ment, like prov­inces and mu­nic­i­pal­i­ties. Where there is a cen­tral­i­sa­tion of power, ei­ther by tak­ing pow­ers from lower lev­els or by re­duc­ing the num­ber of lower lev­els of gov­ern­ment, democ­racy is be­ing eroded.

If the ANC is truly con­cerned about a “con­cen­tra­tion of re­sources” at the pro­vin­cial level, while ser­vice de­liv­ery or­di­nar­ily hap­pens at local gov­ern­ment level, more ap­pro­pri­ate ac­tion might be to en­sure the re­sources go where they are meant to go.

But the real bur­den­some “mid­dle­man” in this re­la­tion­ship is not the prov­inces, but the na­tional gov­ern­ment, which is the fur­thest away from the peo­ple.

Cen­tral­i­sa­tion of power in fewer lo­cales and, at worst, at the na­tional level, does noth­ing but chip away at real democ­racy.

It as­sumes all South Africans are alike, live un­der the same cir­cum­stances, and thus have to be gov­erned in the ex­act same way. While the Rule of Law does de­mand equal ap­pli­ca­tion of the law, this does not mean all law needs to be the same ev­ery­where.

Which laws work best un­der which cir­cum­stances can only be de­ter­mined if South Africa em­braces the co-op­er­a­tive fed­eral model as en­vi­sioned by the con­sti­tu­tion.

This would be rad­i­cal trans­for­ma­tion in­deed.

Van Staden is le­gal re­searcher at the Free Mar­ket Foun­da­tion and Aca­demic Pro­grams Di­rec­tor of Stu­dents for Lib­erty in South­ern Africa. Find out more at www.mar­t­in­vanstaden.com.

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