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.
Newspapers report that the government is considering the scrapping of South Africa’s nine Provinces. The DA seems rather upset by this move, probably suspecting that it is all part of an evil plot to undermine Helen Zille and her government in the Western Cape. It’s the end of democracy! It’s a power grab! The sky is going to fall! (But will we all then be wearing blue bonnets?)
This is clearly not true – although the recent victory of the DA in the Western Cape might have added some urgency to the debate about the future of Provinces within the ANC and the government it leads.
Long before the election, the ANC-led government suggested that it was time to rethink the role of provinces in our democracy. During the negotiations back in 1993, the ANC wanted a strong central government while the IFP (remember them?) and the National Party (before Kortbroek became its leader and completely sold out his party for a cabinet post and the perks that go with it) insisted on a strong federal state.
As with most other aspects of the constitutional negotiations, the ANC outwitted its opponents and we got a strange hybrid system which established Provinces with rather limited powers and a strong central state.
Provinces do have very limited exclusive legislative and executive powers to deal with “important” things like abattoirs and provincial roads, but their other powers are rather constrained and must be exercised concurrently with that of the national government. This means that provincial governments have very little room to manoeuvre in exercising their powers regarding education, health care, policing and housing.
They receive almost all their funding from the national government and must deal with the delivery of these important services within the framework of a policy set by the national government. It seems to me Premiers have far less real power than the mayors of the big cities in South Africa and are not much more than glorified civil servants. Why Helen Zille decided to give up the mayorship of Cape Town to become Premier is really beyond me.
The best argument in favour of the retention of Provinces focuses on concerns about the centralisation of power at national level. If we want real service delivery, so the argument goes, voters in provinces must be able to elect their representatives who will be accountable to them and will therefore be more responsive to their needs.
So far this has not happened. Whether this is because of the one party dominance by the ANC or because of the inherent institutional and practical weaknesses of provinces is not so clear. One can try and fix this by giving more powers to provinces – including more powers for provinces to raise their own revenue – but this is politically and ethically untenable because it would favour richer provinces and would exacerbate the already unacceptable levels of inequality in our country – albeit on a regional basis.
Does this mean that provinces will be abolished? I seriously doubt that it would. First, it would require a major re-engineering of the Constitution. The National Council of Provinces (NCOP) will have to be scrapped along with the whole section of the Constitution dealing with provincial government. Chapter 3 – dealing with co-operative government – will also have to be amended. Whether the present crop of ANC leaders has the will and expertise to take on this momentous task is unclear.
But even more importantly, I suspect there will be serious resistance from within the ANC to any move to scrap the Provinces. President Jacob Zuma’s rise to power was partly based on regional mobilisation and promises of decentralising power to provincial ANC structures. This means that provincial ANC structures might well fight tooth and nail to retain the provinces.
Add to this the fact that Provinces are important vehicles for dispensing patronage and it becomes clear that there will be serious resistance to the idea of abolishing provinces from within ANC. If provinces are abolished, what would happen to the Premiers and the MEC’s, who earn fat salaries and are allowed to drive around in very expensive cars – with or without blue lights flashing? There are only so many ambassadorships to upper Mongolia up for grabs.
The dynamics within the ANC might change in future. But at the moment the shrill voices from the opposition about this issue seem misplaced. Like the boy who falsely cried “Wolf” once too often, the DA might lose all credibility when they shout and scream about the undermining of the Constitution in future.
The opposition parties should hold their horses on this one. There are far more important issues to deal with, like the failure to respect the Rule of Law and the anti-poor and elite-driven bureaucratic way in which communities are sometimes being dealt with. Whether provinces are scrapped or not will not address these fundamental problems with our democracy.BACK TO TOP