Why the MPC was wrong to reject the Referendum Party

Martin van Staden notes that a founding principle of Charter is ‘decentralising power to lowest effective level of govt’

It was announced last week that the 11 parties that comprise the Multi-Party Charter (MPC) have rejected the application of the new Referendum Party to join the pact. This is worrying, because the MPC is formally dedicated to political decentralisation, and the Referendum Party is singularly concerned with the decentralised power of provincial premiers to call provincial referenda. 

Of course, the Referendum Party is also closely aligned with the idea that the Western Cape should secede from South Africa and become a sovereign state. But that is not the party’s goal. The party’s goal is for the Western Cape provincial premier to call a referendum in terms of existing South African law and to test the waters of public opinion.
Party functionaries have even said that the party would accept the outcome if most Western Cape voters rejected secession in that referendum. This alone makes it clear that the Referendum Party is primarily concerned with the referendum, not with secession.
So, what should one read into the MPC’s rejection of the Referendum Party’s application to join the broad anti-corruption, anti-centralist coalition? 
One of the MPC’s so-called ‘shared governing principles,’ contained in the Charter itself, is ‘decentralising power to the lowest effective level of government.’
When stripped of its preference for a ‘yes’ outcome in a Western Cape referendum, this is precisely what the Referendum Party is advocating for. 
It is clear that provincial premiers, right now, have the lawful power to call referendums within their provinces. 
Section 127(1)(f) of the Constitution empowers premiers to call referenda in their own provinces in accordance with national legislation. The applicable national legislation, in this respect, is the (existing) Referendums Act. Now, this old – but applicable – law empowers only the old ‘State President’ to call referenda. 
This is no issue, however, because section 3(2)(b) of Schedule 6 of the Constitution explicitly solves this seeming impasse. It provides that a reference to the old State President must be read as a reference to a premier if the applicable legislation assigns to the State President a power that the Constitution assigns to a premier. Simple. 
Provincial premiers need not wait for Parliament to amend the Referendums Act or for the courts to pronounce on the matter. The Referendums Act remains binding law, and the Constitution is clear about how to apply such so-called ‘old order’ legislation.
There is, however, no requirement on premiers to call referenda. This is a discretion that they have. It is a question of political will, not of law. And neither Alan Winde, Premier of the Western Cape, nor his party, the Democratic Alliance, has the will to call a referendum. 
I have speculated in the past that the reason for this is that they might fear the outcome of a referendum on Cape independence. They and the other MPC parties are quite insistent that Cape secessionism is a fringe, minority issue. But if they truly believed that they would expedite the referendum and put the issue to bed. 
I, myself, believe that a referendum on Cape independence would fail if called too soon, but that is neither here nor there.
More than fearing the outcome of the referendum, however, it seems likely that the MPC parties might also fear the consequences of truly committing to the federalism inherent in the South African Constitution.
Imagine the MPC roars to national power in this year’s election and, having hypothetically endorsed the reality that premiers may call referenda, the African National Congress-governed provinces of South Africa all call referendums on independence or some other issue – like continuing to apply corrupt public procurement policy. 
An MPC government would find this intolerable, as it would conflict with its desire to root out corruption and bring ‘good governance’ to all of South Africa.
Federalism is scary. It has many benefits, of which the biggest is probably that it avoids concentration risk: it ensures that a failure in one place is not necessarily a failure for all places. But it has some costs as well, including the inability of a well-intentioned, reform-minded central government to impose its will on corrupt and incompetent subcentral units of government.
It is unfortunate that the MPC’s commitment to governing well seems to be blinding it to the dire necessity for our already-federal Constitution to be injected with a greater dose of federalist culture and governance. This certainly means allowing some parts of South Africa that wish to continue to be governed by the forces of corruption and incompetence, to do so. 
Allowing the Referendum Party into the MPC would have meant that an entity exclusively concerned with political decentralisation would likely have held the MPC strongly to its nominal commitment to decentralisation. This would have undermined the MPC’s desire to impose good governance from above should it win this year’s general election. 
The MPC is poorer for this decision, and will realise its mistake if fails to take the national reins of power but succeeds in forming coalition governments in Gauteng and KwaZulu-Natal. 
Because if that happens, and the new central government doubles down on failed socialistic and centralistic policies, the provinces governed by the MPC will need to radically impose a federal solution from below.

Martin van Staden is the Head of Policy at the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.

This article was first published by BizNews on 23 February 2024