A decentralised provincial system will enrich constitutional democracy

3 November 2023

The Western Cape’s DA government has tabled the Western Cape Provincial Powers Draft Bill for consideration by the provincial parliament. It is a first of its kind in SA, coming from the only province with a constitution of its own, and aims to enable the provincial government to seek the devolution of certain powers held by central government.

The bill articulates in legislation additional powers for the Western Cape government over public functions such as policing, electricity generation and distribution, as well as trade policy, including aspects of international trade pertinent to the province.

The constitution lends itself to a federal mode of governance to a large degree. This is supported by the schedules of the constitution that outline the functional areas of the provincial and national legislatures. This bill is therefore an attempt to exercise the federal aspects of the constitution.

As a means of checking the powers of majorities and to prevent the re-emergence of the centralised state control of the apartheid era, the constitution attempted to spread executive power across the three spheres of government. This form of organising the monopoly of power and decentralising makes for a freer society.

Section 44(2) and 44(3) of the constitution gives the National Assembly the power to determine provincial functions in areas listed in schedule 5. This allows for devolution, but could result in conflict if the central government and provincial governments that seek more powers are at odds.

It is worth noting that by a variety of measures the Western Cape is the best-performing province in terms of service delivery, employment and a host of other quality of life indicators. This while provinces governed by the nationally governing party flounder and fall apart. This has meant the Western Cape has had to deal with a situation where the policies it has provincially, which have been shown to yield superior results, are constantly undermined by the central government’s policies.

Aside from the legality of such a situation, politically it makes sense that the legislators voted in by the people of the Western Cape should be able to define the destiny of the province in a manner that is different to the rest of the country. That is surely what democracy is all about.

The people of the Western Cape clearly have a different political approach to the rest of the country, as reflected in their voting patterns. In principle, a democratic constitution should allow elected representatives to actualise the vision the society voted for. Residents of other provinces should have the same right.

Yet the Western Cape bill has been vehemently opposed by legislators and ministers of the governing ANC. For instance, the police minister rejected the Western Cape government’s request for more policing powers even though the province’s high crime rate points to failure on his part. Opposing the decentralisation of policing powers to the province is unreasonable in this context given that it is allowed in terms of the constitution.

The politically naive would ask themselves why the central government is opposed to decentralising power. The Western Cape is run by an opposition party that performs far better at most governmental functions than the ANC does nationally. Giving the Western Cape more powers would show the SA public that things can be done differently, with better outcomes.

The ANC has an incentive to centralise power so that the effects of its bad policies are felt across the board. Should one province be able to avoid the harsh effects of bad policies, such as high unemployment and crime, before long other provinces would be likely to follow suit and either take on the policing role or vote the ANC out of power.

For centuries European colonisers sought to define the destiny of the indigenous population of Africa and other parts of the world. In trying to guard against this perverse practice the SA constitution allowed for the option of decentralising power. The exercise of those powers of decentralisation, as exemplified in the Western Cape bill, should be seen as a strength of our constitutional democracy.

Instead of seeing the bill as a manifestation of a “laager” mentality by Western Cape citizens and their legislators, it should be viewed as an opportunity for various people across SA to define their own destinies.

South Africans should support this bill and the legal changes against the status quo that are likely to arise. The possibility of different policies and results across different provinces, reflecting the will of the voters in those provinces, is an exciting prospect. Instead of opposing it, democrats should embrace the bill and its rationale.

Zakhele Mthembu BA Law LLB (Wits) is a legal researcher at the Free Market Foundation.

This article was first published by Business Day on 23 October 2023