Constitutional crisis

2014-02-05 10:00

For the taps to flow, government needs to end the sunset clause on local autonomy

This year has started off badly.

Four people were killed in Mothutlung, in the North West, while protesting over the failure of their municipality to provide them with water.

This marked another deadly milestone in the emergence of widespread so-called service-delivery protests caused, say some commentators, by water supply and sanitation failures.

While the protests are often triggered by local political conflict, failed water supplies are often the immediate focus. And national government is often blamed for responding too slowly.

But the hands of national government are tied by the Constitution. So the question arises whether some service-delivery crises are aggravated, if not actually caused by, the Constitution.

Specifically, are the constitutional provisions that protect local government from national or provincial interference preventing effective intervention?

And does this constitutional protection create a climate of impunity in which local officials – and their opponents – can conduct political fights at the expense of their citizens?

It is often the case that, where service-delivery protests happen, the failings of the municipalities concerned are well known beyond their boundaries, but little action has been taken to deal with them.

This is because the Constitution states that “the national or a provincial government may not compromise or impede a municipality’s ability to exercise its powers or perform its functions”.

It gets worse. The Constitution does not allow national government to intervene directly in local matters. In section 139, that job is given to provincial governments.

This is really unhelpful. First, provincial governments do not have water supply and electricity functions. So they do not have the ability to monitor, much less intervene, in the provision of those two basic services.

Second, there are political obstacles to intervention. Provincial leaders are often reluctant to intervene if they depend on the support of the offending municipal councillors. In provinces like the Free State, North West and Mpumalanga, water supply failures have been aggravated by the long-standing conflicts between ANC factions at provincial level.

Instead of waiting for complete failure and the resultant conflict, common sense suggests that intervention should be triggered before it is too late.

If maintenance is failing, act before the pump burns out, not after. If dams are being drained dry without thought for where the water is going to come from next month, intervene before the supply fails. If the absence of planning means that new infrastructure will not be built in time, don’t wait because it will take years to plan, budget for and build what is going to be needed.

Where there are already problems, municipalities need to work with communities to deal with the problem collectively. Too often in rural communities, the village closest to the source will take as much as they want while villages further down the pipeline go dry.

These problems can be addressed by collaboration, which must be led by other spheres of government if municipalities fail to do their job.

The National Development Plan proposes that regional organisations, such as water boards, should be used where municipalities cannot perform effectively.

But few mayors are willing to give up their control over budgets and appointments, and they cannot easily be compelled to do so.

Compared with many other countries, the South African Constitution gives municipalities an extreme level of autonomy. One reason for this was that National Party negotiators wanted to ring-fence some areas where their white minority could keep control.

Local autonomy was a kind of sunset clause. The ANC allowed this, not least because many members had rosy notions about local government being a place in which citizens could participate actively in the process of government.

We now see that, as elsewhere in the world, local politics can be very nasty. Rather than providing an opportunity for citizens to get involved, it has become a place where competing groups fight for power and personal gain.

So we need to adjust those initial provisions. This would best be done by amending the Constitution.

The first amendment should allow national government to set “triggers” for intervention. Those could include evidence that planning is not happening, operations are not being managed effectively or that funds allocated by national government are not being correctly spent.

These issues are already being monitored by national government, but there is no provision for effective action when failures are identified.

Second, an amended Constitution should allow direct intervention by national government in functions such as finance, electricity and water, where national government is directly responsible and provinces have very limited capacity, because it is not their business.

This is one area in which most political parties should be able to agree. It would end municipal impunity. It would mean that national ministers could fairly be held to account.

In short, it is an action that could transform the lives of ordinary South Africans and strengthen our democracy.

»?Muller is a visiting professor at the Wits University Graduate School of Public and Development Management, and a member of the National Planning Commission. He was director-general of Water Affairs and Forestry from 1997 to 2005

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