Affront to rule of law and democracy

2017-08-22 06:00

THE ANC’s suggestion that the number of provinces be reduced from nine to six comes as a shock.

Fortunately, our Constitution and the rule of law do not make abusing the levers of power that easy.

It would be unfair to the ANC to imply that this is simply corruption and cheap gerrymandering to avoid losing Gauteng in 2019, as this policy was adopted back in 2007 before the Western Cape fell into the Democratic Alliance’s hands.

But the ANC, the oldest and perhaps most experienced democratic political party on the African continent, must surely be aware that wanting to reduce the number of provinces and thereby rob the official opposition of its democratic mandate in the Western Cape, would be perceived as an outright attack on our constitutional democracy.

A postulate of the constitutional principle of the rule of law is that the law and policy must be certain and predictable insofar as it is practically possible.

With the electoral — indeed, political — uncertainty facing South Africa, it would be reckless to fiddle with the configuration of provinces or municipalities at this stage in our history. This conduct invites uncertainty and unpredictability, and is thus arguably a violation of the rule of law and thus the Constitution.

South Africans would do well to remember the legal games the apartheid government engaged in to ensure it got its way, before endorsing the ANC’s plans. Indeed, up to 1956, coloured South Africans enjoyed limited franchise in the Cape, but then the National Party passed legislation increasing the size of each province’s senate representation and thereby giving the government the requisite number of votes in Parliament to amend the South Africa Act and remove the coloured franchise.

Thankfully, however, for the government to decrease the number of provinces, it would need to go about a process to amend the Constitution. Section 74(3)(ii) provides that two-thirds of the National Assembly and six provinces in the National Council of Provinces must approve alterations to “provincial boundaries, powers, functions or institutions”, and section 74(8) provides that the provincial legislatures in question will need to approve such alterations.

When the government is closer to the people and people have more opportunities to participate in the daily governing of their lives, a country is more democratic. This inevitably means devolution of power to lower levels of government, like provinces and municipalities.

Where there is a centralisation of power, either by taking powers from lower levels or by reducing the number of lower levels of government, democracy is being eroded.

If the ANC is truly concerned about a “concentration of resources” at the provincial level while service delivery ordinarily happens at local government level, more appropriate action might be to ensure the resources go where they are meant to go.

But the real burdensome middleman in this relationship is not the provinces, but the national government, which is the furthest away from the people.

Centralisation of power in fewer locales and, at worst, at the national level, does nothing but chip away at real democracy.

It assumes all South Africans are alike, live under the same circumstances and thus have to be governed in the exact same way.

While the rule of law does demand equal application of the law, this does not mean all law needs to be the same everywhere. Which laws work best under which circumstances can only be determined if South Africa embraces the co-operative federal model as envisioned by the Constitution.

This would be radical transformation indeed. — FMF.

• Martin van Staden is a legal researcher at the Free Market Foundation and academic programmes director of Students For Liberty in Southern Africa.


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