Phil Craig
A political watershed is looming in Western Cape politics. The Freedom Front Plus (FF plus) tabled a Western Cape Peoples Bill whilst the DA tabled a Western Cape Provincial Powers Bill (DA) and the public participation process is currently under way for both.
All indications are that the FF plus is going to vote for both Bills but the DA just its own. If the DA does vote against the FF plus’s Bill, it will have publicly rejected the opportunity to deliver constitutional federalism.
Western Cape Provincial Powers Bill
The DA’s Provincial Powers Bill creates a legislative framework which legally compels the Western Cape Government to identify which additional powers should be devolved by the national government to the province and for the provincial parliament to take the necessary steps to obtain them.
It is a powerful Bill, but it has an Achilles heel. It relies on section 238 of the Constitution and the voluntary assignment of powers by the national government. But the national government has repeatedly refused to devolve powers to the Western Cape and the DA has consequently been unable to deliver on its 2019 provincial election promises.
Western Cape Peoples Bill
The FF Plus’s Peoples Bill affirms that the Western Cape ‘people’ are constitutionally distinct from the ‘South African people as a whole’. This is highly significant because South Africa has repeatedly sworn to uphold the right of self-determination which all ‘people’ undeniably have.
The Bill then asserts that this right to self-determination entitles the Western Cape ‘people’ to make decisions for themselves, including over the devolution of powers, federal autonomy, or outright independence. The Bill does not determine how the Western Cape people must exercise the right, which is ultimately a decision for the Western Cape people to make for themselves.
Collaborative or Competing Bills?
There is a political tension between these two Bills.
At face value the Bills are complementary. The Powers Bill creates an obligation to seek additional powers but contains no constitutional right by which to compel national government to devolve them, whilst the Peoples Bill creates the opportunity to demand additional powers by right, without specifying what those powers should be.
The FF Plus believes that both Bills should be passed and have the almost universal support of all the organisations working towards greater provincial autonomy. In contrast, the DA has chosen to view the two Bills as being in competition with each other and seem intent on sinking the FF plus’s Bill.
Does the DA really want federalism?
To answer why, you need to understand how there came to be two Bills in the first place. The DA claims that federalism is a core principle of the organisation. Until the emergence of the Cape Independence movement this was a ‘shot to nothing’ for the DA.
They had no way to deliver federalism which would require a change to the South African Constitution and for 23 years they did nothing to pursue constitutional federalism.
Instead, they pursued the devolution of powers. Devolution is the voluntary assignment of powers by the national government, whilst those powers are assigned by right in a federal system.
Bills a response to Cape Independence Pressure In recent years, calls for Cape Independence have gained significant momentum and the majority of Western Cape DA voters support the idea.
The DA has habitually countered by proposing federalism as a more realistic solution.
The Cape Independence Advocacy Group (CIAG) recognised that whether the Western Cape wanted federalism or Cape Independence, the next step was the same. The Western Cape people needed to obtain control over their own decision making (self-determination).
The CIAG approached the DA and suggested a collaboration between all of the organisations seeking provincial autonomy. As a result, the Western Cape Devolution Working Group (WCDWG) was formed, and federalism was its ultimate objective.
This suited the CIAG. If it could be achieved, federalism was a significant waypoint on the road to outright independence. If it could not, then the DA could no longer offer it as a viable alternative.
The CIAG then drafted the Western Cape Peoples Bill and scoped out a Western Cape Federal Autonomy Bill which would follow in the national assembly. It exploited a constitutional back door using international law and in doing so opened a path to full federal autonomy for the Western Cape.
DA reject federalism
This placed the DA under a very different pressure. For the first time, the DA was confronted with the realities of what federalism meant in practice.
They were uncomfortable with the concept of the Western Cape acting alone fearing the reaction of DA voters in the rest of the country.
In contrast, the CIAG and others pointed out to the DA that federalism by its very nature involved treating different regions differently.
For several months the DA stalled and prevaricated, until the CIAG and the FF plus, who had supported the Bill from the outset, lost patience with the DA and agreed that the FF plus would table the Bill.
Caught in a political dilemma, the DA responded with the Western Cape Provincial Powers Bill which pursued devolution rather than federalism. To disguise its unwillingness to pursue genuine federal autonomy (constitutional federalism) the DA invented the term ‘functional federalism’ which is simply a euphemism for devolution.
Consequently, both bills were tabled.
Cape Independence or status quo?
It remains to be seen if the public participation process will influence the DA to support the Peoples Bill.
If the DA do vote against the Peoples Bill, they will no longer be able to claim that they support genuine federalism. Not only will they have spurned an opportunity to deliver it, but they will have actively voted with the ANC against it. They will also have proven that they are willing to act against the best interests of the Western Cape people to further their own political ambitions elsewhere.
By rejecting federalism, the DA will simplify the case for Cape Independence considerably. If constitutional federalism is not an option, then the choice Western Cape voters face will be between the political status quo or Cape Independence.
Craig is a co-founder of the Cape Independence Advocacy Group