This week I attended a government lekgotla with President Jacob Zuma, members of his cabinet, Premiers, Executive Mayors and Directors-General. The meeting was conducted in a professional and constructive manner. On the eve of the lekgotla, President Zuma called me and we had a cordial conversation.
Unfortunately, while the lekgotla was still underway, the former Deputy President, Baleka Mbete, commented: "Premier Zille is also participating in the government lekgotla. It has sunk into her head that behaving like you are going to secede from this beautiful South Africa is not a good idea".
Of course, there has never been any suggestion that the Western Cape wishes to secede. But it suits the ANC to caricature the DA-controlled provincial government in this way, because it creates the perception that the Western Cape government is somehow threatening to create a breakaway republic in violation of the Constitution.
On this logic, the national government would be legally and constitutionally duty-bound to pull its wayward provincial stepchild into line.
This logic is spurious. The Constitution provides for three spheres of government, at national, provincial and local level. The constitutional principles of co-operative governance require all three spheres of government to "exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere".
And the Constitution is very clear about the nature of those executive and legislative powers in the provinces.
These are the federal aspects of our Constitution. They do not threaten our democracy. They deepen it. During the cabinet lekgotla I had the opportunity to speak to President Zuma and asked him to regard the Western Cape as an opportunity, not as a threat. We are a province that can attempt some alternative policy solutions to several of our country's most pressing problems. It is in everyone's interest to weigh up alternative options and assess which ones work.
For its part, the DA-led provincial government is knuckling down to its constitutional responsibilities of governance. We will not be sidetracked by the ANC's attempts to deligitimise us through statements like the one made by Mbete (or Education Minister Blade Nzimande, who accused me of trying to create a "Bantustan"). Nor will we be deterred by the ANC's plans to disempower us through an orchestrated campaign to make the Western Cape "ungovernable".
We have been through this all before and survived. Upset by, and unable to accept, its defeat at the polls on 22 April, the ANC is trying to undermine the Western Cape government. It did the same thing when it lost control of the City of Cape Town in 2006.
Even so, we will continue to point out and loudly condemn the attempts to dislodge us from power or to reduce our functions, which we have a legitimate mandate to fulfil.
Some of those moves come dressed in legal garb, and they take the form of greater centralisation of power. In fact, just three weeks into Jacob Zuma's presidency, there are disturbing signs that one of the most destructive trends of Thabo Mbeki's reign - towards the centralization of power - is being revived and intensified.
That is ironic, given that one of the main reasons for the deep anger and resentment directed towards Thabo Mbeki by Jacob Zuma's faction, which led to Mbeki's defeat at Polokwane and eventual recall as President, was Mbeki's sustained efforts to centralise power - both in the ANC and the state.
Three developments are of concern.
Firstly, the Minister of Public Service and Administration, Richard
Baloyi, has promised to reintroduce the shelved Public Service Amendment Bill, which will create a "single public service".
Secondly, Sicelo Shiceka, the Minister of Governance and Traditional
Affairs, has indicated that the future of the provinces hangs in the balance. He is part of team busy finalising a report that, in his own words, is "looking at the future of provinces, whether they will exist or not".
Thirdly, the national government looks set to gain greater powers to intervene in provincial and local government through the Ministry of Performance Monitoring and Evaluation and the National Planning Commission, both of which are new and are located in the Presidency.
Coming so soon after Cabinet's decision to approve the draft Constitution 17th Amendment Bill, which empowers national government to usurp powers from local government, these are worrying developments.
If they come to fruition, they will rip up the foundations of the "three-sphere" system of government enshrined in the Constitution and make a mockery of the constitutional principle of co-operative government.
If it is enacted, the resuscitated Public Service Amendment Bill will reduce other spheres of government to mere administrative arms of central government.
The ANC's argument is that the creation of a single public service is meant to standardise the conditions of service across government, to enable government to function better. This is a smokescreen. The Bill is nothing more than an attempt by the ANC to use a centralized bureaucracy, accountable at national level, to impose its policies countrywide, even where the ANC loses elections. This will undermine the core of our democracy, and remove vital checks and balances to power abuse.
Minister Baloyi has linked the creation of a single public service to the establishment of the Ministry for Performance, Monitoring and Evaluation. He noted enthusiastically that the new Ministry will empower the President's office to oversee performance management in all 90 departments, across all nine provinces, in 56 district municipalities, six metros and 283 municipalities. In the same breath, he said: "If you have a single public service, you can go to a local municipality and ensure strict compliance with Batho Pele".
The eight Batho Pele principles were developed by the national government to serve as a policy and legislative framework for service delivery in the public service. But Minister Baloyi was simply using Batho Pele as a fig-leaf for ANC policy. He gave himself away when he singled out the Western Cape provincial government for mention. Insisting that the Western Cape would be subjected to the gaze of the new Big Brother ministry, he said: "You can't say all of a sudden they [the Western Cape government] must do their own thing as if they are not part of South Africa".
However, any plans to strip non-ANC controlled provinces and municipalities of their powers might well come unstuck in the Constitutional Court.
Section 125(2) of the Constitution states clearly that the executive authority of a province is vested in the Premier of that province. The Premier exercises the executive authority, together with the other members of the Executive Council, by implementing provincial legislation in the province; implementing all national legislation within the functional areas listed in Schedule 4 or 5 of the Constitution; preparing and initiating provincial legislation; and developing and implementing provincial policy. This includes the broad policy frameworks on many important portfolios like education, health care, policing, housing and social development.
According to one constitutional expert, this means that, should Trevor Manuel in his capacity as the Minister in charge of the National Planning Commission, decide to impose a policy nationally in one of these portfolios, provincial governments that do not agree with that policy would not necessarily have to implement it. They would be within their constitutional rights to implement an alternative policy, although of course the Constitutional Court would have to weigh up the merits of any such move by a provincial government against the constitutional imperatives of co-operative governance.
In any event, it is only when a provincial government can not or does not fulfil its constitutional obligations that the national government may intervene.
For the National Planning Commission to work in practice, it seems the provinces would have to be abolished or their powers would have to be substantially reduced. That would require a constitutional amendment which, like the Public Service Amendment Bill and the draft Constitution 17th Amendment Bill, the DA will vigorously oppose for the sake of constitutional democracy.
This article by Helen Zille first appeared in SA Today, the weekly online newsletter of the leader of the Democratic Alliance, May 29 2009
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