Prof Dirk Kotzé
The Western Cape Provincial Powers Bill has created widespread speculation about the DA government’s real intention behind it. The ANC accused the DA of planning an apartheid “homeland” mainly for white people. Parties like the Gatvol Capetonians, the Cape Coloured Congress, CapeXit and Freedom Front Plus propagate various shades of provincial independence or autonomy.
In November 1997, the Constitutional Court certified the Western Cape provincial constitution as being in tandem with the national constitution. It came into effect in January 1998. The provincial constitution restated the provincial powers set out in the national constitution and therefore did not include more powers. No devolution of national powers to the province was made.
Ever since the late 1990s, the DA is campaigning for more powers, especially for policing, education and economic matters like trade and tourism. For this purpose, Wesgro was established to promote the Western Cape on the international level. Known as para-diplomacy, the province also developed international relations with cities and regions in other parts of the world.
A strong trend has therefore developed in favour of Western Cape provincial autonomy. It flows from the DA’s long-standing federalist tradition which it propagated with the IFP during the constitutional negotiations in the 1990s. It is, however, not separatist in nature but accepts that it must be within a single national state.
Separatism, secession or independence is another tradition in the Cape. It is most prevalent in the identity politics of numerous coloured organisations. Their genesis is a sense of marginalisation from national policies like employment equity and BEE. Their perception of the national government’s (and the DA’s) indifference towards them justifies their desperate call for separation. The current bill does not endorse the sentiment.
The bill’s stated objectives are to promote the Western Cape’s exercise of provincial powers as they are presented in the national constitution. It would also require the Western Cape government to report to the provincial legislature how the powers were used by them. At the same time, the draft legislation provides for provincial and national legislation to be introduced which would assist the province in asserting the powers. It should include a new mechanism for the province to introduce national legislation in Parliament’s National Council of Provinces. All the provisions are therefore within the ambit of the national constitution.
More contentious, however, is that it seeks delegation and devolution of more powers from the national to the provincial governments. Delegation is possible, because it does not invoke a permanent transfer of powers from one sphere of government to another. Devolution, on the other hand, entails such a transfer, but it cannot be done without a constitutional amendment passed by Parliament. This will be unlikely, because it requires a two-thirds majority.
The South African constitution provides for two categories of executive and legislative powers: concurrent and exclusive powers. South Africa borrowed the categories from the German constitution, among others. Concurrent powers (listed in Schedule 4) include agriculture, consumer protection, cultural matters, disaster management, health, housing, policing, public transport, public works, tourism, trade and education (excluding tertiary education).
Concurrent powers are exercised in tandem by the national and provincial spheres. National government often concentrate on the national policy framework while provinces take responsibility for their operationalisation. A Minmec forum between the national minister and provincial executive council members is often used to co-ordinate the functions of each portfolio.
The DA’s bill is engaging primarily with the dynamics. It seeks more powers or more scope to exercise its powers in the concurrent relationship in the areas of policing, public transport, energy, trade and harbours. Policing developed a special significance for it. When reading the national constitution, specifically sections 206 and 207, then provincial governments and legislatures have significant powers in conjunction with the national commissioner of police. A province has even the right to remove a provincial commissioner from office. The Western Cape is, however, not satisfied with it and wants to become more involved in police training and other functions.
Being so close to the national and provincial elections later in the year, is the call now for public participation in the bill mainly electioneering? The short answer is that almost everything done now by any governing or opposition party is seen through the filter of the elections. The DA runs the risk of losing some of its coloured support in the Western Cape. The bill can be regarded as also a gesture in their direction. The other DA supporters are probably more focused on what happens at local government level and the economic environment. For them, more provincial autonomy is not a critical requirement for good service delivery.
Legal opinions are cautious about the constitutionality of the bill. Devolution of national powers to provinces is not possible and would require constitutional amendments. Like with the provincial constitution, the DA’s options will have to be found within the constitution.
*Prof. Kotzé is from the Department of Political Sciences at Unisa
**The views expressed do not necessarily reflect the views of Independent Media or IOL