South Africa: Reluctant Federalists

1. South Africa: Reluctant Federalists Richard Simeon

2. 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?

3. 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

5. 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

6. 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.

7. 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

8. 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.

9. 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

10. 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?

11. 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

12. 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?

13. 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

14. 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?

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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?

22. 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

23. 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

24. 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

25. 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

26. 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.

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

28. 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

29. 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

30. 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

31. 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

32. Future of Federalism/2 Some 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?

33. 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