South Africa: Reluctant Federalists

Richard Simeon

Some South Africa/Iraq parallels

• Colonial past• Non-democratic rule by one minority• Close to civil war• International context fostered conflict, hindered

resolution• Deeply divided society• Yet South Africa is one of the most successful

democratic transitions – are there lessons for Iraq?

History, Context• Colonialism, white domination• Culminating in Apartheid (total separation of races) in

1948• Denial of citizenship, removals, creation of Bantustans,

banning of parties, etc.• Liberation struggle – approaching full civil war in

1980s.• Stalemate, end of cold war, leads to start of transition

negotiations.• Both sides know they cannot win• Few predict success

Why the fear?

• Deep division, inequality between black and white

• Worry that when white rule ended, ethnic/tribal differences among blacks would divide the country.

• White elite had kept a lid on these potential conflicts; but also exploited them in ‘divide and rule’ strategy

Basic elements of the constitution• Pure proportional electoral system• Bicameral system: National Assembly and National Council

of the provinces• Presidential – but President is leader of largest party in

parliament• Like British Prime Minister, but does not sit in the Assembly• Powerful, strong Bill of Rights: Note includes social an

economic rights, derogation clause• Strong, independent Constitutional Court• Set of independent institutions to protect democracy –

Electoral Commission, etc.

The transition• Preliminary trust-building: the fish hook story• Unbanning of black parties; release of Mandela and

other prisoners.• Difficult negotiations lead to Interim Constitution

(1993); final constitution can only be legitimate after democratic elections

• First elections, 1994. ANC majority• Members of the national Assembly and NCOP

constituted as Constitutional Assembly• Final constitution 1996• Certified by Constitutional Court

Reconciliation and the rainbow Nation

• ANC had never been a black nationalist party; always emphasized a non-racial South Africa

• Many whites and Indians participated in the struggle

• Establishment of Truth and Reconciliation Commission. Confront the past, but move on

• This was no accident: reconciliation message is communicated extensively, through all media. Examples.

South African Diversity

• Major division is black – white: 85 per cent black• Diversity within black community: many tribal

groups (two largest Xhosa, Zulu).• Diversity in white community: Afrikaans and

English• Other significant groups: ‘’colored,” Indian• Language: 11 official languages• Nine provinces: diverse in size, wealth,

demographic makeup

Managing diversity

• History: dominant whites manipulated ‘’tribal’’ identities as part of divide and rule strategy; created Bantustan ‘’homelands’’

• In transition, some argue for a SA organized around tribal/language identities

• ANC argues for non-ethnic, non-racial South Africa, with aim of transcending difference not reinforcing it.

• Question: which is the most effective strategy?

Result: Recognition without Empowerment

• South Africa constitution recognizes and celebrates diversity – ethnic, religious, etc.

• But seeks to express these differences in the private sphere, and to minimize their expression in the public, governmental sphere

• Why? Belief old regime manipulated ‘’tribal’’ identities to divide and rule; fear of politicizing ethnicity

Major success• Many feared once White rule ended, internal

conflicts among Blacks would escalate• One major example: movement for autonomy of

Zulu people in Kwa-Zulu Natal. Considerable violence

• Today: linguistic/tribal conflict has declined, not increased

• Issues today: primarily economic, class issues• Question for Iraq: Is it possible to shift primary

debate from sectarian questions to other issues?

The constitutional process

• Three stages: Interim Constitution, 34 Principles, elections, final constitution

• Constitution as ‘’pact’’ – settlement of a long-lasting conflict – and as a framework for governance in the future. Possible tensions

• Constitutional Assembly: negotiation among elites, but extensive public education and participation – essential to long term success

• Effect: disempowered citizens learn about voting, rights, rule of law

Past and present in the SA Constitution

We the people:• Recognize the injustices of our past• Honor those who suffered• Respect those who have worked to build and develop our

country• Believe that South Africa belongs to all who live in it, united

in our diversity• Purpose: to heal the divisions of the past and establish a

society based on democratic values, social justice and fundamental rights

• Note similar words in Iraq constitution: how to make them real?

Power-sharing• Constitution provides for initial period of power-sharing• A party that wins 20 per cent of the vote gets a Deputy

President;• One that wins five per cent of vote gets a cabinet minister• Soon ends, but assisted the transition• Reality: despite PR, SA is a one-party dominant state,

because ANC, party of liberation, has massive support in black community

• Wins almost three quarters of seats in last election – which was free and fair

• Worries: dominant party may feel it ‘’owns’’ the system

Is it federal?

Like Spain and India the South Africa Constitution does not declare South Africa to be federal

But it is federal in form: • Three orders of government – ‘spheres ‘ – national,

provincial, local.• Each with assigned powers• Each independently elected• Each protected by the Constitution, and the

Constitutional Court• But it is a highly centralized form of federalism

The federalism debate

Central to the constitutional pact.• ANC hostile to federalism– Too closely linked to Apartheid and Bantustans– Could institutionalize tribal and linguistic differences

that ANC wished to overcome– Could limit capacity of central government to

undertake the massive developmental and redistribution challenge that it faced

• Compare with ideology of Congress party in India

White community

Wants federalism: why?• Fears tyranny of majority: wants to limit

powers of central government• Prefers a plural South Africa organized around

groups• Along with strong Bill of is their bottom line in

negotiations• ANC reluctantly agrees

Federalism in SA/1: Chapter Three of Constitution

• Three constitutional ‘spheres’ of government,• National, provincial, local• Are elements in a single system• Goal is ‘cooperative government’• The spheres are to be: ‘distinctive,

interdependent and interrelated’• All are obligated to preserve the unity and

‘indivisibility’ of the Republic; no right to secession

Federalism in SA/2

Each sphere must:• Provide effective, transparent, accountable

government• Respect the status, institutions, powers, and

functions of government in the other two spheres

• Not encroach on the powers or integrity of other spheres

• Must co-operate with each other in mutual trust and good faith by

Federalism SA/3

• Fostering friendly relations• Assisting and supporting one another• Informing and consulting with each other• Coordinating their actions• Avoiding legal proceedings against each other• (Appeal to Constitutional Court only as last

resort)• These may only be ideals, but are they relevant

to governments in a federal Iraq?

Division of Powers• Follows German model: few areas of exclusive

powers; most are concurrent• Exclusive provincial powers are minor• And even in these areas, the national

government can intervene to protect national security, unity, national economy

• In shared powers, national government is paramount

• Little provincial autonomy: provinces administer national laws. Little law-making on their own

Fiscal federalism• Central government dominant – controls all

major revenue sources• More than 90 per cent of provincial revenue is

transfers from the center• But Constitution guarantees an ‘equitable share’

of revenue to provinces to carry out their roles• ‘Finance and Fiscal Commission’ advises on these

shares• May be conditional or unconditional; distribution

based on need

Representation of Provinces at the Center

• NCOP modeled on Bundesrat• Provincial voice at center, designed to ensure

national laws take account of provincial needs.• Vote as a block, on instruction from provinces

on Bills directly affecting them• Requires super-majority in National Assembly

to override NCOP• Not very effective

Intergovernmental Relations

• Governed by legislation• Regular meetings of national and provincial

executives, including national President and provincial Premiers

• National Department of Provincial and Local Government seeks to manage process

• But tends to be top-down: center instructs the provinces

Safeguarding the system

• Constitutional Court• Has final power of judicial review of

constitutionality of any law• Final arbiter of intergovernmental conflicts• But may have bias towards the center –

Western Cape electoral law• Monitoring, intervention powers of the

center.

Results

• This is a very highly centralized system• ‘Quasi-federal’• Very limited provincial autonomy, room for

innovation

Provincial Capacities

Provinces are weak in many ways:• In political capacity: little strong presence in

minds of citizens• One-party federalism: ANC dominant in national

government and in all provincial governments• Provincial Premiers ‘deployed’ by ANC national

executive; little autonomy• Responsibility is ‘’up’’ to the national government

more than ‘’down’’ to their legislators and citizens

And in bureaucratic and fiscal capacity

• Several provinces lack human resources ability to carry out assigned functions

• Inherited old, corrupt, incompetent Bantustan bureaucracies

• Problems with training, competence, corruption• Hence often inability to deliver services• Capacity building a high priority• Monitoring, supervision and support from the center is

critical• (But note: many of same problems would appear if the

national government provided all services) • A major question for Iraq: building capacity in regions

Local Government

• Provided in Constitution.• Implemented only recently.• Some believe that democratic local governments can

better serve citizens than provincial governments.• But many local governments have even greater

capacity problems than provinces• Relationship between local government and provinces

and local government and center are complex• Desire to simplify system

Future of Federalism in South Africa

Three scenarios currently under debate:• First, abolish provinces• Second, turn them into administrative bodies, responsible

to center without elected legislatures• Third, strengthen provincial capacity• The debate: SA established 3 levels of government: was

that one too many?• What is ‘value added’ of provinces? Are local governments

better placed to advance democracy and effective government?

• ANC to debate issue at its national convention; DPLG has started a public consultation process

Future of Federalism/2Some evidence of increasing regional identities and interests• Regional divisions within the ANC may grow• Regional politicians may become more jealous to maintain

their powers• Regional identities may grow• ANC dominance may end by splits – but likely not along

regional lines• Larger role for strong provinces – Gauteng and Western

Cape• Could South Africa follow the Indian pattern: starts out

highly centralized then becomes more federal?

Conclusions

• The success of the SA transition to democracy• Of which federalism is only a part• Reasons:– Leadership – does it take a Mandela?– International context– ANC commitment to democracy, and to multi-

racialism since its start– Prior tradition of rule of law– Shared South African identity