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PRESENTATION TO IMFO CONFERENCE. 30 September 2013 Presenter: Mr Muthotho Sigidi Department of Cooperative Governance. PURPOSE of the PRESENTATION. To profile the interventions regime under S100 and S139 of the Constitution.
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PRESENTATION TO IMFO CONFERENCE 30 September 2013 Presenter: MrMuthothoSigidi Department of Cooperative Governance
PURPOSE of the PRESENTATION • To profile the interventions regime under S100 and S139 of the Constitution. • To present on a range of lessons learned re S100 and S139 interventions. • To review the processes and status of the draft IMSI Bill as informed by policy and practice to date.
TYPES OF INTERVENTIONS: THE CONSTITUTION Section 100(1) of the Constitution provides that when a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation. Section 139(1) of the Constitution has similar provisions but pertains to provincial government intervening in a municipality within its jurisdiction. Section 100(3) and 139(8) provides that national legislation may be enacted to regulate the processes established by these sections.
OVERVIEW: S100 • In March 2011 national government announced an intervention in the Eastern Cape, which was later followed by two more interventions in Free State and Limpopo in December of the same year. • A Joint sitting of the Select Committees on Finance, Public Services, Education, Appropriations and Social Services (Feb 2012) met thereafter to discuss interventions in provinces and the roles of national departments. • Members considered the role of the NCOP in oversight, the provincial legislatures, particularly the Public Accounts Committees, as well as pointed out the need for the exercise of specific oversight over the affected departments.
ASSIGNMENT TO LEGISLATE • The President in 2012, pronounced that the Ministry of Cooperative Governance has been delegated with the development of legislation as required by sections 100(3) and 139(8); it should also tap into the experiences of provincial intervention teams, to assist with the drafting of the new interventions framework. • CoGTA has to thus consolidate the legislative concerns of all parties, and provide certainty on the roles of each sphere of government, as well as define its administrative and oversight roles.
ASSIGNMENT TO LEGISLATE • CoGTA was given an ‘urgent’ mandate to: • Provide synergy between the existing IMSI Bill, with the Public Service Act (DPSA), and financial interventions ‘triggers’ and management with the PFMA. • Undertake consultative processes to ascertain necessary amendments to the IMSI Bill to strengthen scope and authority for provincial interventions. • Provide clarity on the roles of MECS and assigned Administrators, during an intervention, as well as the roles and obligations of the various role-players during an intervention.
ASSIGNMENT TO LEGISLATE National Departments were to collaborate to ensure: • Provision of a regulatory framework for Provincial Government (CoGTA) • More effective management of concurrent functions (CoGTA) • Establishment of norms and standards for concurrent functions (DPME) • Creation of objective criteria linked to demonstrable evidence of failure to perform executive obligations (CoGTA, DPME) • Stronger oversight and regulatory environment for conditions of service and administrative matters (DPSA). • Strengthened financial oversight (NT) .
ASSIGNMENT TO LEGISLATE • 7. An Inter-departmental Technical Task Team was established to manage and coordinate the redrafting of the MSI Bill. • 8. The Technical task team comprises of: DCoG, DPSA, National Treasury, DPME and the Public Service Commission. • Each department was tasked to work on the revised drafts of certain sections of the IMSI Bill and also propose amendments to their own legislations : e.g PFMA; MFMA and the PSA.
KEY FEATURES OF DRAFT S100 LEGISLATION • Provides for: • The Minister, or the Minister and another Minister jointly, may be delegated authority to intervene in terms of section 100. • A clear definition of what constitutes an ‘executive obligation’, (as per the Constitutional trigger re ‘failure to perform’). • All notices of interventions to be submitted to the NCOP, National Treasury, the national department having a sectoral interest in the intervention, and the DCoG Ministry. • Regular or minimum 3 monthly reviews of the intervention to be undertaken, covering the effectiveness of the intervention, and reported to the CoGTA Minister.
CURRENT STATUS OF S100 LEGISLATION • The Department has received representation from the Minister responsible for public service and administration regarding the placing of the responsibility of section 100 of the Constitution. • The DPSA has requested that the Intergovernmental Monitoring, Support and Interventions Bill should exclude all the processes relating to section 100 of the Constitution; the DPSA is intending to amend the Public Service Act, 1994 to regulate the process established by this section. • The Department of Public Service and Administration (DPSA) has developed: • The Provincial Monitoring, Support and Intervention Bill, and • The Public Administration Management Act (PAMB) • Both of which impact on provincial governance. • COGTA and the DPSA are advised by FOSAD to meet to establish a way forward regarding the separation or not, of the IMSI Bill re S100 provisions.
SECTION 139 INTERVENTIONS • In terms of section 139 (1) of the Constitution the provincial executive has the power to intervene into the local government affairs when a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation. • Section 139(1) provides for general intervention in instances where a municipality fails to fulfil an executive obligation (this is a provincial discretionaryintervention); • Section 139(4) provides for instances where a municipality fails to approve a budget or any revenue raising mechanism as required by legislation (a mandatory obligation); and • Section 139(5) provides for intervention in instances where a municipality, due to its financial affairs, is unable to deliver services or meet its obligation (a mandatory obligation).
CURRENT INTERVENTIONS Currently there are 13 municipalities in 4 provinces under administration in terms of S139 (10 municipalities) and of S136 (MFMA) (3 municipalities).
TRIGGERS FOR REFORMS: – LEARNING FROM PRACTICE • Pre–intervention Directives in terms of section 139(1)(a) not always issued prior to the intervention. • Monitoring can be highly uneven, including analysis and action on S139 Review Reports. • Degree of Provincial Legislature oversight over the Provincial Executive uncertain. • District municipalities have not determined their support roles: e.g. request progress reports on S139 municipalities at their IGR Forums, determine areas of support; escalate matters to LG MinMec.
TRIGGERS FOR REFORMS: – LEARNING FROM PRACTICE • An intervention should be used as a ‘last resort’; ‘early-warning’ and pre-intervention support mechanisms are needed. • The provincial duty to monitor and support local government is undermined by insufficient personnel, funds, institutional knowledge, and expertise to drive systemic monitoring and support initiatives. • Sustainability uneven: complexities of the root causes; need to review overall viability i.r.o some municipalities. • The IMSI Bill frames roles and responsibilities across and between spheres: it will require an intergovernmental response re suitable capacities and skills to implement.
Summary Objectives: Stabilise the interventions environment through: Clearer procedures and processes for undertaking both S100 and S139 interventions; Establish, together with DPME, a range of sector norms and standards for service delivery to better define executive obligations; Ensure that interventions are used as a ‘last resort’ and prevent ‘conflictual interventions’ through providing pre-intervention measures for provision of support.
Summary Objectives: 4. Providing for a consistent and uniform approach to the application of an intervention at both provincial and local level (and rationalising procedurally, re both S139 and S100); 5. Section 139(8) legislation would complement the provisions of the Municipal Finance Management Act, which provides a detailed framework for (section 139(4)&(5))‘financial’ interventions. Status The IMSI Bill is ready for Cabinet: it will be processed through Cabinet and Parliament during 2014/2015, either as is, or separated as S139 legislation.
CoGTA initiative for Joint Programme: Support and Monitoring
CoGTA initiative for Joint Programme: Support and Monitoring:Finance and Governance
Support Approaches strategies to address challenges Available through the department: • Deploy critical technical skills through MISA • Monitor rigorously the implementation of the amended Municipal Systems Act. • Strengthen oversight structures like s79 Committees, Audit Committees and Ethics Committees. • Engage in partnerships for support programmes. Not within the control of the department: • The political environment in municipal spaces: e.g. coalitions, which can lead to continuous chopping and changing of Mayors and speakers; plus overall problem of political in-fighting and tensions and interference in the political/administrative interface. • Rectifying financial mismanagement, holding to account, ‘consequences’ and technical support for financial turnaround.
