NORMAN LEVY

Behind this pretentious title is an attempt to re-think some of the themes dealt with during the course of work on the report of the Presidential Review Commission (PRC)[1][1] and the Intergovernmental Relations Audit.[2][2]

The themes that unfailingly excite interest are the geography of the post-apartheid state, its contours of national, provincial and local government institutions (concentric spheres rather than subordinate tiers of government), its structures for decision making and the concept of co-operative government which provides the framework, the values and the principles by which these different spheres of government are required to cohere. I’ll refer to these but it’s hardly possible to deal with them in any depth. I will, however, draw attention to tensions where they’ve arisen or are likely to occur.

The mindset required for co-operative government

Despite the tensions, it would be difficult to imagine what relationships would have emerged and what system(s) of intergovernmental relations would have developed if the Constitution had not broadly defined the principles on which intergovernmental relations were to take place. (These principles are set out in Ch 3 of the Constitution under the heading ‘Co-operative Government’, with an important sub-section headed ‘Principles of co-operative government and intergovernmental relations’). It’s an open question as to whether the concept of co-operative government would not have been invented if a chapter had not been written excluding actions which might encroach on the ‘functions, institutional integrity and geography’ of the particular spheres.

It follows from this that any discussion of the powers, relationships and functional status of the different spheres has to be located in this particular chapter of the Constitution. I’ll do this to some extent, but wish to introduce a seemingly extraneous element into the discussion and that is to argue that the mutual trust and respect for our constitutional arrangements – on which ch 3 is founded – rests on the mindset that the new democratic order would, for the foreseeable future, be based on a common understanding that the state needs to be developmental – however differently that notion might be perceived. Consensus towards that end is an imperative for stability and peace. This raises the question ‘how viable would be the concept of co-operative government outside this tacit understanding?’ Whatever the response to this question, the concept of co-operative government is aided by this generalised view.

This generalised view is bolstered by Ch 2 of the Constitution containing the Bill of Rights which, in the words of the current ANC[3][3] online journal ANC Today, ‘bind[s] all legislative and executive bodies of State at all levels of Government’. The chapter on human rights ‘finds application to all laws, administrative decisions taken and acts performed during the period in which the Constitution is in force’.[4][4] This applies to the social sections of the Constitution on housing, health care, food, water, social security and education and many others. These concerns are the subjects of regular debate in Parliament, the provincial legislatures and the formal and informal intergovernmental institutions such as MINMECs,[5][5] the Budget Council, CEM,[6][6] FOSAD[7][7] and the PCC.[8][8] All these bodies are in place to enable the spheres and vertical and horizontal organs of government[9][9] to work within the understanding of the framework of the principles of co-operative government.

At the political level this understanding is, from time to time, reinforced by the ruling party in its efforts to nurture the active consent of broad sections of society – in Gramscian parlance ‘the winning of hegemony’. It is unlikely that the constitutional principles underlying Ch 3 would be unworkable in the absence of a human rights (that is, developmental) perspective, but the discourse would probably be different and an opposing hegemony (maybe a post neo-liberal ‘glocal’ concept of development) would probably have to replace it to facilitate coherence in the working of government.

The concept of continuing struggle: ‘Aluta continua’

At present the principles that underscore the ‘struggle’ aspirations of South Africans make up the dominant perspective in government and, although spread unevenly throughout ‘the whole social surface’ the ruling party is nonetheless largely successful in determining unity at the economic, political, intellectual and moral levels. It has also up to now been reasonably successful in presenting a generally acceptable social and strategic perspective that is antithetical to the apartheid order or purely ‘business’ perspective. In this respect, President Mbeki’s remarks, made appropriately on Human Rights Day in the context of a scenario of ‘continuing struggle’, is indicative of the consciousness of the ANC, as the ruling party, to win political, moral and economic acceptance of its views. Mbeki writes:

The question that the successors of the Martyrs of Sharpeville had to answer was how they would use the political power they had acquired further to advance the agenda of those who perished, to address the still outstanding goals of the national liberation movement. This question had to be answered within the context of the fact that the democratic power had a responsibility to govern not only in the interests of the formerly oppressed but in the interests of all the people of our country, including the former oppressors…The outcome of this struggle must be the eradication of the legacy of the racist system against which the Martyrs of Sharpeville fought. The legacy includes poverty, underdevelopment, the continuing racial and gender disparities in our society and criminal violence.[10][10]

This ideological map in the name of the successors of the martyrs of Sharpeville requires the ANC (organised as the ruling party in government) to co-ordinate its agenda of ‘continuing struggle’ with those of other groups to obtain their ongoing acceptance of government’s need to redress the past co-operatively through the agency of a development-oriented state. Ch 3 of the Constitution on ‘co-operative government’ is therefore the operational framework through which this co-operative project is seen to be achievable, and it seems reasonable to assume that the prevailing consensus will endure as long as it is able to ensure the cohesion of the alliances on which it rests. Hopefully, in the process, something stronger than the dominance of the strategic perspective of a ruling party will emerge, and the ‘moulding of a unified consciousness’ – a hegemonic view – around the values of the Constitution will emerge in the form of nation building to enable the Constitution to take firmer root.

The hegemony of ideas – a contested terrain

An Alliance Summit document of July 1998 entitled The state, property relations and social transformation cautions that this hegemony of ideas is a contested terrain played out in the shifting balance of forces within the state. As such, the moulding of the collective consciousness around the unified aims of social advancement and the human rights values of the Constitution is part of the contest for the hegemony of ideas and for the strengthening of our constitutional democracy.

In appealing to the successors of the martyrs of Sharpeville, all strata are encompassed. In this Summit document, there is similar reference to all strata. In a sweeping précis of this document – which does not do justice to its nuanced presentation – the state presides over the National Democratic Revolution (NDR) and its aims are to make its goals the universal goals. It ensures that the ownership of capital is not defined in racial terms, and its struggle against the rapacity of capital is to play a strong regulatory role in respect of labour relations, skills development and equity. The state does this through its programme of restructuring state assets and the utilisation of instruments of empowerment. In the process, its strategic interventions are felt via the redistributive functions of the fiscus, the development of a welfare safety net, and the redefinition of the role of the state for modernisation. Briefly this captures the essential points of the Summit document but it also describes the developmental state whose tenets inform social policy and underpin co-operative government.

Co-operative government: Managing the tensions

Although the concept of co-operative government rests on a conscious effort at achieving consensus in the polity, it is not without inherent tensions. The above discussion argued that the unifying project of a development-oriented state facilitated the practice of co-operative government. What follows below is the view that despite the tensions, this partly had been sufficient to make the system function. Both the Audit of Intergovernmental Relations of 1999 and the Presidential Review Commission of 1998 recognised the importance of intergovernmental relations (IGR) – that is, the political approach towards managing consensus in government – in cementing the co-operative endeavour. The Audit addressed the subject of IGR exclusively over a year later than the PRC, by which time the strengths and weaknesses of the system had – to some extent – become more apparent. In this paper the tensions and weaknesses of the system are given emphasis insofar as they affect the power relations between the spheres of government and the impact this has on decision-making. The Audit found that on the whole a credible system had developed and there was much to build upon. But there were nonetheless potential tensions in the concept of seemingly co-equal spheres of government – national, provincial and local – which would, in time, need to be managed.

The Audit went quite far beyond the text of the Constitution to elaborate the underlying power relations between the spheres. Ch 3 s40 of the Constitution maps the geography of government in constituting ‘national, provincial and local spheres of government which are distinctive, interdependent and interrelated’. The regime by which the spheres must conduct their activities is set out in Ch 3 s41 which among other things, enjoins each sphere to preserve the peace, secure the well-being of the people, respect the constitutional status of other spheres, adhere to agreed procedures, and avoid legal proceedings against one another or at least exhaust all other remedies before approaching a court to resolve disputes. In so doing, it manifested a political approach to managing future conflict. An Act of Parliament must at some stage regulate IGR and provide mechanisms to settle intergovernmental disputes, but the Constitution does not lay down a time frame for this, allowing for ‘best practice’ to emerge before regulation takes place. The tension the Audit noted here was that whilst the Constitution refers to spheres of government that are distinctive (in their legislative and executive autonomy); interdependent (in the degree to which they depended on each other for the fulfilment of their functions), and inter-related (in their duty to co-operate with one another ‘in mutual trust and good faith’) – at the provincial and local government levels, they were nonetheless not co-equal in that their executive authority could under certain circumstances be overridden with consequences for the fragile post-1994 consensus. This was especially so as the distinctive legislative competency of both provincial and local governments can be overridden by national government and, in the case of a province’s concurrent competency, the national government can render it inoperative to maintain national interests where the security of the country is threatened or our economic unity undermined, our national standards impaired, or where the actions of a particular province are prejudicial to other provinces. (See s22(2) of the Constitution).

Conflict is inherent, in this context, at the level of local government too. In this respect, both the national and the provincial governments have a regulatory function to oversee the performance of municipalities by regulating the exercise of their executive authority. This process is seldom without tensions. Perhaps the lethargy (or inaction) of the provinces in carrying out their oversight functions is the product of policy rather than inertia. Section 100 of the Constitution enables the national executive to intervene in the affairs of a province if the latter fails to carry out an executive obligation in terms of legislation or the Constitution. A province has a similar power with regard to municipalities in its jurisdiction under s139 of the Constitution. (This is the power which gives provinces the executive authority to intervene in local government if municipalities do not perform according to the mandates given to them by the province). The national government also has limited power to stop payment of funds to municipalities where there is a serious breach of sound financial management.

A binding framework

Irrespective of a sphere’s constitutional authority to override the executive authority of another sphere or intervene under s100 or s139 of the Constitution, the principles of co-operative government lock these relations into a particular normative framework spelled out  in the regime (s41(1)) – noted below – for the conduct of IGR.

The logic of the founders of the Constitution was that no sphere should pursue its own interest at the expense of the nation and that the actions set out in s41(1)(h) to foster peace, support, assist, inform, co-ordinate, adhere to agreed procedures and avoid adversarial actions against one another are the positive actions that must be taken by all parties to make co-operative government a reality.[11] Thus much depends on mutual trust and some like-mindedness or consensus as to what is good for the nation. Although the power of supervision which allows one sphere of government to intervene in another appears to contradict a fundamental principle of co-operative government, the Audit Report noted that these provisions provide a necessary corrective when a province or a municipality fails to govern and thus jeopardises the collective enterprise. All this to some extent reinforces the view above that, in order to make co-operative government a reality, there needs to be some overarching economic, political and moral unity within the polity.

The national government has on three occasions intervened in provinces under s100 of the Constitution. All the cases dealt with budget deficits. Interestingly, the province called for the assistance of the national government on each occasion, so the issue of whether the interventions were necessary did not arise. The point, however, is that while a consensual approach is appropriate, s100 is intended to empower the national government to intervene when a province does not wish to co-operate. In truth, the Audit team were often told that provinces did not welcome extensive and intrusive monitoring. Mechanisms for this clearly needed to be developed and government needed to address the lack of co-ordination between national and provincial departments to forestall interventions which could, with effective monitoring, be avoided. (Audit Report:85–6). This was, however, a sensitive issue as national departments, while conscious of the relations of power over the executive authority of provinces, were reticent in their dealings with their counterparts in the provinces for fear of appearing to be too interventionist and undermining of the co-operative relations that were constitionally designed to govern their interactions.

Oversight – the pre-eminent role of the provinces

The rationale for the existence of provinces in our unitary political system is not a robust one, except in the oversight functions accorded them by the Constitution for local government delivery of social services. Significantly, the Constitution made this a dual, somewhat overlapping function, but the national government has in practice (budgetary matters excepted) left it to provinces to make the formal interventions. The writing is on the wall for the provincial system if, in the new dispensation for the viable development of local government, they continue to distance themselves from what is happening in the municipalities. Both the national and the provincial governments are required in terms of s154(1) of the Constitution, to support and strengthen the capacity of municipalities ‘to manage their own affairs, to exercise their powers and to perform their duties’. Provinces, however, lack monitoring and support mechanisms for the supervision of local government and do not regularly budget for such contingencies. Most provinces are in agreement that local governments are in trouble and lack capacity and an adequate financial base to govern. As a CEO in a former District Council put it before the reconfiguration of municipalities in 2000: ‘their client base has increased – from a small white community to a large community that now includes black residents. With the same income, with greater expenses, these transitional local councils cannot service their loans’ (Audit Report:87). There was, however, a constitutional responsibility under s155(6) of provincial governments to provide monitoring and support for local government in the province and promote the development of local government capacity. National government similarly had an overlapping duty with the provinces to ensure effective performance by municipal authorities, but it has so far been reticent to act where provinces have been slow in their responses, although it has the legislative and executive authority under s155(7) to do this.

While the Department of Provincial and Local Government channelled funds in the form of grants and the equity share to local authorities, it has left it to provinces to intervene where the municipalities failed in performance or lacked capacity to deliver services. While provinces acknowledge that local government is in need of assistance, there are few provincially-assisted programmes. Two case studies which were undertaken by the Audit team in Tweeling in the Free State and Warrenton in the Northern Cape revealed the dire consequences of the absence of provincial oversight or timely action to anticipate collapse. The South African Local Government Association (SALGA) were equally unable to connect effectively with the provinces to avoid these interventions.

The NCOP: Issues for debate

The National Council of Provinces (NCOP) has been best at mediating interventions, but there is little space here to explore this. The point is that while it is an important component of Parliament, it is also a significant instrument in the legislative branch of government for IGR. But the NCOP is more than this. According to the Constitution (s42(4)):

the NCOP represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.

The issue for debate is whether there are constraints of process and principle which inhibit the NCOP from performing this function. This is explored in the course of looking at the NCOP’s participation in the legislative process, its oversight function of the executive, and its powerful review function in scrutinising specific national actions. The NCOP has several other powers which are not reflected in this paper, for example, its specific powers in connection with constitutional amendments and its role on the Judicial Services Commission.

The critique of the Audit Report focused on two aspects: the NCOP’s role in debating s75 and s76 Bills relating to so-called national and provincial legislation respectively. The dichotomy between legislation dealing with national and provincial concerns is problematic and some would say the tagging of Bills to delineate whether they are national or provincial – reminiscent of ‘own’ and ‘general’ affairs – is tenuous. This is particularly the case as the Constitution itself recognises that national legislation (s75 Bills) may also intrude on provincial interests (s76 Bills) in cases specifically stipulated as falling outside areas of provincial competence. The question is rather whether the system is not too complex, whether there is not functional overload of the NCOP’s capacity to debate s75 Bills, and whether the legislative process enables the provinces and the NCOP to add value to the debate.

A general complaint was that the system was too complex for the system to work effectively. As an institution articulating the provincial voice, the NCOP was overloaded with work and its mandate to debate both s75 and s76 Bills was too broad, given its limited resources and the composition of its membership. Its composition of four special and six permanent delegates from each of the provinces was a handicap in that the special delegates lacked continuity and, more pertinently, played no part in the committee system.[12] This left the processing of bills to only 54 delegates – far too few in number to deal with the large number of bills to be scrutinised. The Audit Report calculated that NCOP permanent members serve on average of eight different select committees as opposed to their counterparts in the National Assembly who serve on two portfolio committees. Consequently the quality of input and degree of scrutiny suffered.

The Audit Report saw the consideration of s76 Bills relating to the provinces as the NCOP’s pre-eminent role, although there was no record of great conflict of substance on the whole between the two houses. Moreover, at the political level, there was unlikely to be significant conflict where the political party has a majority in both houses. A further reason for the absence of substantive conflict had to do with the intergovernmental relations process itself – the same matters are discussed in the NCOP as in the IGR institutions (for example, the MINMECs) before they reach the NCOP.

Privileging the executive over the legislative?

This is more than a detail, for it affects the NCOP’s oversight of the executive. The MINMECs are meetings of the national minister with the MECs from every province for each of the sectoral fields for which provinces enjoy concurrent powers with the national government (for example, education, health and welfare). For the MINMECs to work optimally (not all do), MECs need to brief their provincial EXCOs[13] and receive mandates from them to take to the MINMECs; national policies are canvassed by the national minister (possibly initially with Cabinet); MECs buy into the process, discuss, debate, amend and finally reach compromises and consensus inside the province and nationally. Draft legislation is discussed in the parliamentary portfolio committees, amended in the MINMECs and agreements struck. It is unlikely that the delegates in the NCOP would easily unravel the process by re-opening the debates and restarting the process, although this does, on occasion, happen. As the Audit Report noted (page 116) ‘the executive IGR processes effectively eclipse the NCOP’s function.’

What is being suggested is that the executive function may overtake the legislative one, if there is no space left for effective debate in the NCOP on provincial interests because these are seen to have already been articulated at the MINMECs (or through some other IGR process, for example, the Budget Council or CEM or bilateral meetings of departments or portfolio committees of the National Assembly). During the course of the Audit on intergovernmental Relations, officials and elected persons posed the question as to whether any further value could be added to debates when such broad-ranging discussions have already taken place in these bodies. In this sense the NCOP was perceived by officials and politicians ‘as a rubber stamp of the National Assembly!’ Two points emerge from this. First, from a provincial point of view, the MINMECs and other IGR bodies were seen as more appropriate vehicles than the NCOP for making an input into legislation. Second, the practice as it stands potentially privileges the executive over the legislative and to that extent undermines the democratic process in its failure to observe the separation of powers.

The legislative cycle- an unrealistic management process?

Given this procedure, it is unsurprising that, in a crucial respect, the NCOP is constrained by an unrealistic management process from carrying out its responsibilities for scrutinising s75 and s76 legislation in such a way that provincial interests can be taken into account in the national sphere of government. The disparities in managing this function between the National Assembly and the NCOP are stark. For example, once the Bills have undergone the preliminary (IGR) process, they can take a considerable time to be debated in the National Assembly. However, the NCOP is expected to complete the process within four weeks.

The issue for debate is whether the unmanageable time-scale for the formulation of provincial mandates is not so much a failure of organisational design as a more fundamental ambiguity in the perception of the role of the NCOP as a substantive component of Parliament.

The time-scale of the legislative cycle possibly reflects a view that extended debate at the level of the NCOP is  either superfluous (as most matters have already been debated in the National Assembly, the portfolio committees and the IGR institutions) or is likely to delay the passage of legislation.

The legislative cycle is as follows:

·       the minister introduces the Bill in the NCOP in week one

·       the Bill is referred to the provinces for public hearings and the formulation of a provincial mandate in week two

·       the Bill is discussed in the relevant select committee of the NCOP in week 3 and, in that same week, referred back to the provincial legislature for a mandate

·       the Bill is referred to the NCOP for a vote in week 4.

Whatever the merits of the critique of the NCOP, within the limited time-scale it has at its disposal, there is hardly an opportunity for a considered view from the provincial legislatures to be articulated beyond that considered at the executive levels in EXCO or the relevant instrument of IGR.

At a more positive level, the NCOP is most effective in its oversight or review functions; in its veto power over both national and provincial executives when they intervene in a province or a municipality under s100 or s139 as the case may be. There is no space for this debate, but it is interesting to note that it is in this field that the NCOP best contributes its skills and clout to achieve an effective system of co-operative government and the consensus on which the stability of government rests.

Conclusion

Co-operative government is the concept adopted by the South African Constitution to manage the interaction of the different organs of government by dialogue, debate consensus and to avoid the resolution of disputes by judicial means. The paper argues that the Bill of Rights and values of the Constitution reflect the ‘struggle context’ in which the post-apartheid state arose and that these values bind the executive and legislative bodies to give effect to these principles of transformation, redress and development. Co-operative government rests on these assumptions and is aided by them. However, the prevailing consensus around the developmental state (however it may be conceived) is the glue upon which co-operative government rests, although redress, access to skills and the commanding heights of the economy, non-racialism and non-sexism are undisputed.

This consensus is nonetheless not uncontested and the political, moral and economic and intellectual ingredients of the struggle – including poverty, underdevelopment, the continuing racial and gender disparities which are incompletely realised – provide a basis for ‘the moulding of a unified consciousness’ around which the future of co-operative government depends. There are tensions inherent in the constitutional arrangements, but the constitutional guidelines for the management of these provide a normative framework to identify the positive actions that need to be taken to make co-operative government a reality – and to provide a necessary corrective when there is a threat to the integrity of the collective enterprise. This places a considerable burden of responsibility on the national and provincial governments to ensure proper oversight of those powers which they share concurrently and to exercise their executive authority responsibly, according to co-operative rather than hierarchical norms.

 

PROF CHRISTINA MURRAY

Although the Constitution deals with the provincial system, it is not an aspect of the Constitution that is often appealed to. We regularly defend our commitment to human rights and a deliberative Parliament by reference to the Constitution but don’t defend the existence of provinces in the same way. Our lack of consensus around the provinces and lack of confidence in the system undermines the confidence with which individuals and institutions are able to fulfil their roles. Intergovernmental relations (IGR) are not an end in themselves, they are about systems to ensure better delivery. All of us want the system to work better and faster. An enormous amount has happened at the provincial level since 1994, but we tend to emphasise problems rather than successes.

Our lack of confidence in the provincial system is evident in IGR. I have been to two MINMECs, and neither was marked by robust debate with national minister. Rather, the MECs were attending to get instructions from the national minister. The lack of confidence in the provinces feeds into a lack of understanding about how provinces could fit into the national system. The system is meant to ensure that regional interests and regional wisdom informs national policy, but when MECs go to MINMECs simply to take instructions, the system loses its value.

The NCOP provides a good case study about how this provincial input is not being made. The provinces fail to pay attention to s76 legislation passed by the NCOP. They feel frustrated by the NCOP playing a role mainly in respect of s75 legislation. The NCOP finds it difficult to move away from more ‘sexy’ topics (for example, justice) to topics relevant to the most important areas of provincial competency (for example, education and housing). It is hard to understand why the provinces don’t engage. They seem to believe they are engaging when they participate in MINMECs and other IGR forums, but this is engagement in an undemocratic way. We differ from the German Bundesrat (on which the NCOP is modelled) in that we are averse to decisions being made by executives; we feel these should be subject to the kind of scrutiny that only legislatures can provide.

A lack of confidence and a lack of understanding of s76 legislation binds the provincial executives. Legislation is handed down by the national Parliament for the provincial executives to implement. Seeing MINMECs as engagement is a weak argument – decisions should not be taken by the executive. The NCOP should take a second look, it should improve MINMEC processes. Even if the NCOP tends to agree with decisions made by the executive, it need not be a rubber stamp – agreement after proper scrutiny is not a failure of process. The decisions should be seen to be taken publicly by parliamentary representatives in the NCOP.

Another problem in the NCOP has to do with the role of the permanent delegates; the 54 representatives of the provinces (six per province). By and large, the permanent delegates think the NCOP is theirs and that special delegates (four per province) are visitors. Permanent delegates feel they need to show special delegates around, and they are sometimes scornful of their lack of familiarity with the national Parliament and its processes. This is problematic. The provinces are the institutions that should be driving the NCOP. Permanent delegates should be ambassadors for their provinces. Provincial legislatures pay little attention to the permanent delegates, they don’t see their importance, and they don’t see that s76 legislation is a kind of provincial legislation.

Why are the provinces not engaging? They often don’t understand the system, and they defer to national ministers – MECs talk about national ministers as their bosses. The integrity of the multi-sphere government is lost once there is deference to senior politicians. NCOP politicians feel insecure about promoting the provinces, they worry about what it may mean for their careers if they push provincial politics, they feel they need to cultivate a constituency back in the provinces they represent [to secure their political futures].

I am not sure I agree with Norman’s criticism of provinces in their relationship with local government. In fact, I am sympathetic to the lack of provincial capacity and their lack of funding to provide support to municipalities through providing personnel and funding and through taking over some municipal responsibilities. Provinces don’t have spare cash and spare capacity. The division of revenue among spheres is considered a political issue, rather than something which is primarily decided by the Fiscal and Financial Commission and similar technical institutions. Provinces find it difficult to argue for a bigger slice of the cake.

We need to make a clear decision about whether provinces should stay or go, so that they no longer have an ambiguous sense of identity.

 

DISCUSSION

Norman Levy would have wanted to respond to certain of the points below, but the time for the meeting ran out before this was possible. What follows is a summarised, point-form record of points made by participants arranged under broad thematic headings.

The future of the provinces

·       I don’t think the ANC is committed to the provinces. I don’t believe the National Party (NP) was committed to provinces either when it struck the pre-1994 deal [for the handover of power]. The Democratic Alliance (if we accept it is an extension of the Democratic Party) is also losing its commitment to federalism. Compare the ANC party constitution and the national Constitution – the ANC operates on a real unitary structure where the national, central level clearly prevails. The NP wanted to find a way to preserve whatever was left of the status quo and federalism was a way out. It realised would be reduced to taking the Western Cape and, if it was lucky, the Northern Cape as well. The ANC understood it would lose KwaZulu-Natal and the Western Cape, it viewed these as delinquent provinces anyway. The DA is losing its commitment to federalism because it has so little influence at national level. Even though he is a national politician, Tony Leon is becoming involved in politicking at local and provincial level. He is getting advisors in the Western Cape to start working on a model for the DA to contest the 2004 general election from a local and provincial-level base.

·       The position of the provinces is tenuous – Eastern Cape Premier Stofile voiced his reservations about keeping the provinces in a newspaper interview a week ago. This shows the ANC is doing some thinking about the future of provinces.

·       Changing the provincial structure of the country is the theory – I work with the Constitution as it stands at the moment. I am not a federalist, but I believe you need a range of points [including the provincial structure] to hold our previously fractured society together. The ANC could not have effectively administered transformation from national level – the provinces are necessary.

·       There is no discussion in the ANC about getting rid of the provinces, but questions have been raised about new legislation for local government. The ANC has said the current structural arrangement at the local government level needs attention, but there will continue to be a provincial administrative structure.

The ANC’s hegemony

·       The ANC has hegemony and, even if it is not able to secure consensus, it seeks to say its narrative is the right narrative. The ANC was partly right, correctly assuming the opposition would be as weak as it has proved to be. It assumed that civil society would be on its side, because six years is too little time to form a civil society platform against the ANC government. However, the support for the Treatment Action Campaign and resistance to the Igoli 2002 plan shows civil society can challenge its hegemony. The ANC assumes it is the custodian of transformation and of the developmental state. But the electorate during the 2000 local government elections was saying the ANC is not the custodian of these things. Some stayed away in the 2000 elections because there was no alternative party to vote for.

·       I am not clear about Norman’s use of ‘hegemony’, Gramsci said it has to do with power structures and in those who are in power, it does not necessarily include consensus.

Oversight of the provincial executives

·       There are many problems in the provinces as others have said, for example, problems of capacity. Hundreds of millions of rands remain unspent in the conditional grants to the provinces, and it is shocking that the provinces are being praised for underspending. Oversight powers are currently held by the provincial legislatures, not the NCOP. It has been argued that the NCOP must be given oversight powers of the provinces. There are insufficient numbers of representatives in the provincial legislatures to do oversight, except in Gauteng and KwaZulu-Natal. In North West, for example, 14 of the 33 members of the provincial house are MECs, and many others are chairpersons of committees. The provincial legislatures do not have the person power to perform their oversight duties properly. The NCOP has a weak oversight role at the moment – to protect the spheres of government.

·       MECs are reaching small agreements outside the public view. If the Audit had been properly done, it would have highlighted the danger of MINMECs which are allowing ministers to take MECs into little rooms to take executive decisions. The NCOP is encouraging provincial legislatures to call MECs in to explain what has happened behind closed doors. The IGR view that the executive can manage itself and can run the country to the exclusion of the legislature is dangerous. The only way they will see they are wrong is when the provincial legislatures start to use their oversight powers of EXCOs.

·       Provincial legislatures are not clear about the areas in which they can pass legislation, or that they have oversight of the executive and the implementation of policy in provincial areas of competence.

·       The NCOP has tried to carry out a series of debates called provincial reviews, but MECs are inclined to use them to tell us how wonderful the national minister is. The lack of power in the NCOP makes it difficult to ensure that the people’s needs are being attended to. Permanent delegates need to meet with MPLs,[14] but MPLs often feel like the NCOP delegates are coming to tell them what to do.

Legislation – the role of the NCOP and the provincial legislatures

·       Norman says very little unravelling of deals struck by the executive through the IGR institutions and the National Assembly takes place, but in fact a lot of ‘unravelling’ does occur. The NCOP does amend quite a lot of legislation submitted by MECs. For example, the NCOP disagreed with the Liquor Bill because it saw this as a provincial competency. Although the National Assembly overrode the objections of the NCOP, President Mandela and Minister Alec Erwin suspected that the Bill was unconstitutional, and submitted it to the Constitutional Court. The court found in favour of the NCOP on this.

·       The four-week cycle for legislation which Norman referred to refers to the time allowed for consideration of legislation after it has passed through National Assembly (if it is legislation which is introduced in the National Assembly). In fact, there is a much longer period for the NCOP to consider bills.

·       The NCOP, which is only three years old, is beginning to introduce s76 legislation. The NCOP should sit at different times to the National Assembly to emphasise that it plays a different role, but this has not yet happened because the executive is so bad at planning that being able to anticipate when bills will come in is very difficult at this stage. If the houses sat at different times, the NCOP would have more time to consider bills. Planning this would require closer co-operation between the executive, civil servants who draft the legislation and Parliament. The NCOP no longer spends as much time on s75 legislation except in areas such as safety and security, correctional services and justice, all of which operate in the provinces.

·       Tagging bills as s75 or s76 is a difficult process because the presiding officers often have different views of what national and what a provincial matter is. Some bills have been split into two to separate the provincial and national issues.

·       A s75 bill can go through in a day if it is urgent by suspending the rules, but s76 bills take longer because they require provincial mandates.

The provincial legislatures

·       It is necessary to run legislation through provincial legislatures, but some don’t have functioning committees. The NCOP has a website, it has appointed liaison officers, the information for consideration by the legislatures goes to provinces, but often the legislatures claim they have ‘only just’ received legislation [when the deadline is due to lapse]. The ability of provinces to impact on legislation depends on their participation and input. In most provinces, this is very weak. Permanent delegates go to their provinces with bills, meet with the relevant committees, then they come back to Parliament to negotiate a mandate. At that point they have started to develop a position from the provinces. Then they look for agreement in the NCOP, then they go back to the provinces. Then the NCOP gets a resolution from each province giving a mandate for how it sees the bill. A uniform system for mandating legislation is being put in place to make sure the provincial legislatures use their opportunity to express a view in the provincial mandates.

·       Special delegates love the beaches of Cape Town, so they are inclined to come to Parliament when they should not be here at all.

·       Provincial legislatures are male-dominated. When Mosuia Lekota was head of the NCOP, he was also chair of the ANC, so MPLs used to invite him to meetings. Now that the NCOP is headed by a woman, they have gone into the corners.

·       Permanent delegates are going to the provinces and participating in ordinary debates. But any permanent delegate who behaves as if he or she is an MPL is interfering with the composition of the provincial legislature, and therefore affecting the outcome of the vote.

The relationship between the National Assembly and the NCOP

·       The National Assembly is strong and is becoming arrogant and neglecting its role and obligation to exercise oversight of the executive. Civil society also has a responsibility in this. The more space we allow an institution, the more space it will take up.

Constitutional Court decisions on the constitutionality of legislation

·       Our Constitutional Court is different to other similar courts because can make its decisions on the constitutionality of legislation apply from a time in the future to allow the legislatures time to remedy defects in legislation.

The Fiscal and Financial Commission

·       The FFC does not have enough influence, and does not use the influence it does potentially have. The commission is seen in the NCOP as just an extra source of information, rather than a body which can assist in arguing for the provinces to be given more money. There are tensions between the FFC and the Minister of Finance.

·       The FFC should liaise with provinces but it doesn’t. It should speak to provinces but does not. It prefers to talk to the Treasury.

·       The FFC is an advisory body. The Department of Finance filches its best staff so it does not have much influence.

The potential of parliaments to be deliberative bodies

·       African countries which achieved independence early generally do not have vibrant legislatures. Countries which achieved independence from the late 1980s, especially those which had had liberation struggles (for example, Uganda), made their constitutions with public participation and generally have vibrant legislatures with powerful committees, as is the case in South Africa and Malawi. Uganda does just as much navel-gazing as we do. Many countries across the continent are reconsidering their constitutions. The increased attention being paid to parliaments is new. Parliaments are seen as the institution that will promote democracy.

·       We need a debate on Parliament as a deliberative body rather than a rubber-stamp. Parliaments like ours that are constrained by separation of powers need to learn to be deliberative bodies.