Daily News

ANC’s desire to tinker with provinces sinister


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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