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The South African Devolution Working Group is pushing for greater devolution within the country, hoping to exert pressure on the central government to delegate some of its powers to the provinces. While South Africa is a federation on paper, it appears to be run more like a unitary state, with the central government holding much of the power. However, the constitution stipulates that many functions should be devolved to the provinces and municipalities, giving them the authority to legislate and administer matters that relate to local governance. Subsidiarity, the notion that governance must take place at the lowest possible level where it remains effective, could facilitate greater decentralisation. To find out more on the concepts of federation and devolution, read the article below.
Federation and devolution: ‘Doing’ versus ‘asking’
By Martin van Staden*
Both federation and devolution are concepts of political decentralisation. The pitfalls of centralisation have been well-documented, but briefly, when a society (or any other social unit) places some important good or service – electricity comes to mind – under the control of a single institution, and hence a single point of potential failure, that represents a significant risk.
When electricity generation or distribution is centralised, if that utility fails, it fails for everyone. When policing is centralised and that authority becomes tyrannical, everyone suffers. On the other hand, when electricity is decentralised, and one utility fails, it only fails for some; and if policing is decentralised, the tyrannical inclinations of government are limited.
Collapse or tyranny coming about in some area of a decentralised political order allows other areas to institutionalise protections, and even provide refuge for those fleeing the collapse or oppression.
Of course, decentralisation is not without its own costs. It often leads to duplication where there are, for instance, multiple local, provincial, and central police services, each with their own staff, procurement, and so forth. It certainly leads to expensive conflict, when different government institutions in different spheres litigate against each other. These costs are often worth it, however, given the lower level of political risk to society and thus fewer harms resulting from central control. South Africa could be significantly wealthier today if it had multiple, decentralised police institutions that guaranteed safety, even if having many such institutions would cost more in the short term.
Federation and devolution: What is the difference?
Devolution is a concept known primarily within unitary states. A unitary state is one where constitutional authority vests in a single sphere of government: the central or ‘national’ sphere. This government, in all unitary states, has the discretion to create other subnational governments, and to delegate some of its own powers to them (or retrieve powers from them). This is an act of devolution, known in Afrikaans as die afwenteling van magte – the passing of powers downwards.
Federation, on the other hand, is an institutional arrangement where constitutional authority is not vested exclusively in a single sphere of government, but rather dispersed, usually across two spheres, but in South Africa across three. These spheres of government have original constitutional authority (and hence power) that they may wield without permission from above.
Some unitary states, like the United Kingdom, devolve significant powers and functions to subnational units. Some federations, on the other hand, like Russia, are quite centralised.
It may therefore happen that some unitary states are more functionally decentralised than some federations. The status of a country as a unitary state or a federation, in other words, says less about the degree of decentralisation, but simply distinguishes between those countries where decentralisation is a matter of central government discretion, or a matter of constitutional entrenchment.
South Africa’s federation
The central government, provincial governments, and municipal governments in South Africa all have original constitutional authority, making South Africa a federation. South Africa is a centralised federation that, on its face, seems to be governed as though it were a unitary state. This is primarily because the ANC, which subscribes to democratic centralism, has been elected into government in most subnational spheres in addition to the central state.
Had several South African provinces, and even more municipalities, been governed by real (as opposed to superficial) opposition parties, the federal nature of the South African Constitution would likely have shone through more clearly.
What does South Africa’s decentralist movement want?
The Devolution Working Group is an informal grouping of organisations striving for greater devolution rather than federalism. It wants to pressure the central government into delegating some of its own powers to the provinces. Indeed, any movement for devolution is fundamentally a movement of request or demand. It puts the ball in the central government’s court.
According to the South African Constitution, there are many functions that would, legally, have to be devolved for them to operate provincially or locally, and it is right, in these circumstances, for advocates of decentralisation to make the necessary demands.
On the other hand, many functions are already constitutionally vested in the provincial and local spheres, which places the ball in the provincial or municipal government’s court. This is especially true of municipalities, which are empowered to ‘exercise any power concerning a matter reasonably necessary for, or incidental to, the effective performance of [their] functions.’
In addition, the Constitution obliges (without discretion) both the central and provincial governments to ‘assign to a municipality […] the administration of a matter [reserved to the central or provincial government] which necessarily relates to local government’. All that is necessary is for the municipality to have the requisite capacity, and that the matter would be administered most effectively at a local level.
Provinces, in turn, have the exclusive authority to legislate on, among other things, ‘provincial planning’. This is a broad, undefined, and vague term that ultimately allows provincial governments to establish authority across a wide range of domains that they deem necessary for their ‘provincial planning’. Since South Africa is, in fact, a federation, with the Constitutional Court having recognised that subsidiarity is a constitutional principle, vague terms like this must be construed as in favour of lower levels of government.
Subsidiarity is the notion that governance must take place at the lowest possible level where it would nonetheless remain effective.
This means that both provinces and (especially) municipalities could simply start implementing self-government, without waiting for the central government to grant it. In reality, only well-run provinces, like the Western Cape, Gauteng, and potentially KwaZulu-Natal, and well-run municipalities – again, primarily in the Western Cape and Gauteng – would be able to do so.
In practice, however, even well-run provinces and municipalities have tended to defer to the central government, for example when it comes to procurement policy.
Section 217 of the Constitution regulates public procurement. Subsection (1) requires organs of State to prioritise value-for-money in procurement. Subsection (2) allows organs of State, voluntarily, to take racial considerations into account when procuring. Subsection (3), in turn, requires Parliament to adopt legislation that must be complied with by those organs of state that choose, under subsection (2), to engage in preferential procurement. The Minister of Finance, Enoch Godongwana, in his medium-term budget policy statement of 2022, confirmed that organs of state need to be left to decide for themselves whether to engage in racial procurement:
‘Every organ of state must have its own procurement policy, not be getting permission now and again from Treasury. We are giving you that authority; each organ of state is to have its own procurement policies. No-one will then say if I don’t deliver on time I’m delayed by Treasury.’
Regrettably, despite the constitutional discretion afforded to organs of state, the Western Cape, Cape Town, and Tshwane, all opposition-controlled governments, have opted for racial procurement when they need not, according to formulas determined by the central government.
The 2024 general election may or may not produce a ‘Wild Dog’ or Reform Coalition at the national level, but it is quite certain that the ANC will lose its majority in Gauteng and very likely in KwaZulu-Natal. It lost its majority in the Western Cape in 2009.
These three provinces are the economic engine-rooms of South Africa, representing 64% of the country’s GDP in 2017 and 62.6% of its jobs in 2020. It is essential that municipal and provincial authorities in these provinces protect their citizens and residents against the damaging policies and interventions of the central government, by embracing the significant federal authority granted to them.
*Martin van Staden is the Deputy Head of Policy Research at the Institute of Race Relations and an advisor to the Free Speech Union SA. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.
Copyright of The Daily Friend 2023
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