Putting the 18th Amendment into effect

1. Formal implementation – Transfer of functions– Restructuring institutions/new institutions

2. Ongoing work – Maintaining and developing the system

3. Changing mindsets

1: Formal implementation

• Examples– Regulation of labour and mine safety– Curriculum, centres of excellence, education

standards– Environment

Formal implementation: ToolsArticle 267A

• By 30 June 2011

• Implementation Commission

• Removal of difficulties

Power to remove difficulties

• Concern that something in the Amendment doesn’t work – or can’t be implemented immediately as intended

• Joint sitting of Parliament –– By resolution– Adapt (refine) provisions– Limited period

• Only available for a year

Laws• Federal laws on concurrent matters that give functions to

Federal Government:– Laws remain in force– Technically Federal Government no longer has executive power

over them

• Amendments needed to shift responsibilities to Provinces

Options include: • “Agency” agreements between individual provinces and Fed

Govt (tax collection?)• Use of Arts 144 and 147

– Provincial assembly gives Parliament power to legislate and administer

Civil Servants

• On contracts• With skills• Based in provinces

• Transfer of staff to provincial governments

• Implication– Slow process for province to redesign civil service and make

it its own– Discretionary budget of provinces likely to be small

Facilities

• Offices

• Records

• Equipment

Politics and practicalities

South Africa’s experience

• National commitment that new Constitution should improve things

• Provinces did not have institutions or skills• Wide differences in capacity between

provinces

• Constitution delayed establishment of new municipalities

• Provision for asymmetrical devolution to provinces –– Provinces to demonstrate capacity– National government given obligation to support

them and help develop capacity

BUT• Political pressure for immediate transfer of

powersCOST ?

• Deterioration of existing infrastructure • National government lost confidence in

provincial system• Particular problem with over hasty fiscal

equalization

2: Ongoing work

Need for coordination of exclusively provincial matters

Need to deal with overlap between federal and provincial matters

• Environment – doesn’t respect boundaries

• Duties in respect of succession to property (removed from Federal Legislative List)

• External affairs – may overlap with provincial matters

• Interprovincial matters and coordinationFederal Legislative List Part II (13)

• Directions to Provinces – Art 149– Provinces shall not impede Federal Government’s

exercise of executive authority– Fed Govt may give directions

Intergovernmental institutions

• Council of Common Interests• Federal ministry OR institution outside Federal

government• Meetings of ministers concerned with specific

issues? – Provincial environment ministers?– Technical meetings?

• Meetings of Chief Ministers?

3: Mindset

Federal• Dismantle various federal institutions

• Learn art of joint decision making– NFC – Council of Common Interests

• Support provincial governments– Don’t over-extend Interprovincial matters power– Don’t overuse directions under Art 149

Provinces

Institutions and their operation

Increased budget and deletion of concurrent listmeans – • Increased functions and responsibilities • Shift to planning development • Realism about what can be done

Judiciary

• Understand the need for cooperation in Federations– Competitive– Cooperative– Combination

Examples

• Interpretation of ambit of Federal list

• Art 157 – electricity - consultation of concerned province

• Federal legislative list Part II: Interprovincial matters and cooperation – Narrow (Canadian Peace Order and Good Governance

provision)– Broader (South African concern for national standards)– Federal dominance

What should guide courts?

• Commitment to federal system – protect devolution of power

• Commitment to certain national values – draw from Preamble, Bill of Rights, Principles of Policy

What can be done to change mindset?

• Vision of what is possible– Offered new ways of doing things

• Citizen expectations

• Teaching