As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The various ANC discussion documents released by the ANC regarding the so called “second transition” makes for interesting reading. As the dominant party in our democracy, one that styles itself as a movement that represents the hopes and dreams of the nation (rather than as a normal political party) and as the driver of social change, the ANC’s discussion documents grapple with what it sees as the challenge of strengthening the party’s hold on state power, and to transform the state machinery to serve the cause of social change.
To this end, the proposals for changes to the provincial (as well as local) government is of particular interest. The ANC document recognises that at present the provincial and local government does not function as effectively as it should to provide services to the people. It rejects proposal for the abolition of Provinces, something that is in any case not politically feasible because of the vested interests of those forces in the ANC who have access to power (and the financial perks that come with it) at Provincial level and would not want to lose their influence, power and access to tenders.
Instead the document argues that the “problems emanating from the existence of Provinces are not structural but are more functional and to do with powers… Provinces must be strengthened to play a much more supportive role to local government in service delivery. Thus the powers and functions of provincial government must be re-focused and aligned to complement service delivery at local government.” This seems correct, as the Provinces at present fails to fulfil its task because they are neither full-blown policy developers and implementers, nor mere mechanisms for the implementation of national government policies.
Provinces are seen as important in enhancing the system of both representative and participatory democracy in our system of government. However, this does not mean that the Constitution might not have to be changed. To this end the following important proposals are put on the table for discussion:
The ANC government must reform, rationalize and strengthen provinces. This must ensure the following;
- That we have fewer provinces which are functional, effective, economically sustainable, integrate communities on non-racial basis and do away with ethnic boundaries.
- That the powers and functions of the provincial sphere of government be strengthened to ensure more functionality, economic viability and racial/ethnic integration.
- The role of provincial legislatures be refocused, and mechanism to strengthen legislatures be developed.
- Consideration of municipal representation in legislatures to strengthen participatory democracy and representation.
- The roles and responsibilities of provinces to be legislated so as to remove any uncertainty and disputes. This is especially necessary since the district level of government is to be reviewed.
It is difficult not to read these proposals, with its emphasis on the need for the integration of racial and ethnic communities, as being partly aimed at the Western Cape, where the DA is in power and where Africans do not form a majority of the electorate. The ANC document seems to recognise the potentially controversial nature of any rationalisation of the Provinces – especially if it will involve the Western Cape – and as such the discussion document contains assurances that the “process to reform, rationalise and strengthen provinces” will be “open, democratic and ensure broader consultation and participation by the public”. The document then continues:
The ANC must give serious consideration to constitutional requirements to carry out the above, in case there is a need for fundamental changes to provinces. The envisaged policy changes might require constitutional amendments. The key political parties must be sufficiently consulted and be allowed a space to play a role in shaping the provincial reforms.
These sensitivities may also relate to the fact that any changes to the Constitution to rationalise the Provinces will not be easily achieved. Section 74(3) of the Constitution states that most provisions in the Constitution may be amended by a Bill passed by the National Assembly, with a supporting vote of at least two thirds of its members; and also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment relates to a matter that affects the National Council of Provinces; alters provincial boundaries, powers, functions or institutions; or amends a provision that deals specifically with a provincial matter.
More importantly, section 74(8) states that any amendment that relates to a matter that affects the NCOP; alters provincial boundaries, powers, functions or institutions; or amends a provision that deals specifically with a provincial matter, but “concerns only a specific province or provinces”, can only be passed by the National Council of Provinces if the amendment “has been approved by the legislature or legislatures of the province or provinces concerned”.
This means that any amendment to the boundaries of the Western Cape Province will have to be approved by the Western Cape legislature, something that seems unlikely as long as the DA controls the Western Cape legislature. If such amendments are indeed envisaged, there are two ways around this problem.
The first would be for the ANC to win the next Provincial election in the Western Cape, something that seems unlikely in the near future. The DA has the power of incumbency that works in its favour and it will use that power (and the resources that it controls because of this) to good effect to ensure its dominance in the Province in the near future. Moreover, the ANC in the Western Cape is internally weak and has not yet recovered from the destructive internal battles which raged during the tenure of former Premier Ebrahim Rasool, leaving the party in a relatively weak position.
The second would be to try and amend section 74(8) of the Constitution itself in order to scrap the provision that would require the support of the Provincial legislature for any changes in Provincial boundaries. As section 74(8) itself does not contain a super entrenchment provision regarding its own amendment and thus does not prohibit an amendment of section 74(8) except with the approval of all the Provincial legislatures, this would be possible as long as the governing party could obtain a two-thirds majority in the National Assembly, something that might be achievable through co-option of smaller parties in the National Assembly (or through achievement of a two-thirds majority in the next national election).
Amending the boundaries of the Western Cape would make a lot of political sense for the ANC. Political scientists who write about one party dominant democracies have argued — often pointing to the loss of electoral dominance by the Indian Congress Party after it started losing elections in various states — that one way in which a dominant party often loses its electoral dominance is when other parties start winning regional elections. When this happens, the smaller parties (in this case it would be the DA) will suddenly gain an independent governance base and access to power and resources at a regional level. Ambitious politicians will then no longer have to join or remain in the dominant party to become part of government while the smaller parties can theoretically demonstrate that it is capable of governing just as well or much better than the dominant party.
The smaller party who wins a regional election will also gain access to state resources at regional level and will suddenly become an attractive partner for the business elite and other role players who would want to gain that party’s favour to get access to tenders and other economic opportunities. This will weaken the absolute dominance of the party that governs nationally and will open up opportunities for further regional gains for smaller parties in other regions (or in our case, Provinces).
Whether the DA is well placed to use its electoral dominance in the Western Cape in this way is an open question. Unless it can transform itself in quite fundamental ways the electorate in other Provinces might not flock to it under any circumstances. But as long as the DA controls the Western Cape, it poses at least a potential threat to the continued national electoral dominance of the ANC, so it would make sense for the ANC to neutralise this threat by changing the boundaries of the Western Cape to rob the DA of its majority.
Such a shameless power play by the ANC (if it were to happen) will, however, not be without its dangers. Where the dominant party acts in ways that robs it of its legitimacy in the eyes of the voters — for example, by demonstrating what appears to be a shameless hunger to cling to power at any cost — this may drive its traditional voters into the arms of the opposition as these voters may value their democracy (and their sense of having a real right to choose their leaders) just as much (or more) than they value their emotional bond with the dominant party. It may also lead to a re-alignment of the political landscape as disillusioned democrats within the dominant party may reject such a naked power grab and may then break from the dominant party.
No wonder the ANC is treading carefully and is suggesting that key political parties (which one assumes would include the DA) should be allowed a space to play its role in the re-shaping of provinces. If it is indeed its intention to rob the DA of its governance role in the Western Cape (something that is not explicitly stated in the discussion document), it may well lose credibility and legitimacy among some of its core voters — especially if it changes section 74(8) of the Constitution.