Cries of ‘apartheid’ will not dissuade federalist sentiment
By Martin van Staden, Head of Policy at the Free Market Foundation. He is pursuing a doctorate in law at the University of Pretoria. For more information visit www.martinvanstaden.com.

The African National Congress (ANC) and its client parties disrupted a public hearing on the Democratic Alliance (DA)’s Western Cape Provincial Powers Bill on 29 January, describing it as an ‘apartheid’ measure. Conflating apartheid and political decentralisation, of course, is a political trick with a long history, not an insight the widely discredited ANC has stumbled upon.

It is fair enough for the ANC to engage in this expected propaganda. But that does not mean thoughtful South Africans should fall for it. After all, federalism always stood opposed to the oppressive political thinking that gave rise to virtually all of South Africa’s historical crimes and injustices.

Apartheid: unitary or federal?

The National Party was unequivocal about its rejection of federalism right through the period of apartheid. Its sentiment only shifted around 1991, after the transition to democracy had already begun, when it adopted a federalist manifesto at its Bloemfontein congress that year.

From 1910 to 1994, South Africa was indisputably a unitary state – the ideal held out by the ANC. For the entire period of its existence, then, apartheid was the policy of a unitary state. Only after 1991, when most petty and grand apartheid had already been dismantled, did the now reformist National Party embrace federal thinking.

Kader Asmal, one of the ANC’s most prominent jurists during the transition, echoed the sentiments of Jan Smuts and John X Merriman almost verbatim when he set out the ANC’s opposition to federalism in 1994. Smuts and Merriman, and the Nationalists long after them, opposed federalism and substantive decentralisation during the creation of South Africa in 1910 because it would have limited the ability of the central government to ‘get things done,’ and lead to constitutional deadlock when subcentral spheres of government sought to oppose the central policy.

The ANC’s views on the matter are virtually indistinguishable, although it does add spicy terms like ‘revolution,’ ‘redress,’ and ‘social justice’ to its rhetoric.

It is entirely within the political interest of the ANC and other political parties that seek to secure the big pie of resources controlled by the central South African government, to paint federalism and devolution as nefarious or even evil. The temptation to rent-seeking and loot is strong among revolutionary socialists, and they are easily offended by the notion that their power should be limited.

Concentration risk

A line I am fond of quoting is by American law professor Donald Horowitz, who wrote during the transition that ‘federalism generally remains only the wisdom of hindsight in Africa,’ and this rings true in South Africa in particular.

The ANC’s total mismanagement of law and order in South Africa has necessarily caused a national crisis. This is not natural, and could have been significantly less severe if provinces and municipalities embraced more autonomy to oversee criminal justice.

Having a unitary labour policy in South Africa could have produced high levels of employment across the whole country. The converse is what we are in fact experiencing: this concentration of policy formation in the central labour department has meant that the ANC’s compete ideological wrongheadedness on this issue has caused South Africa to have one of the highest joblessness rates in the world.

Incompetence and corruption and ineptitude at the centre need not mean collapse everywhere. Federalism and decentralisation are imperative to the managing of risk.

The DA bill

The DA and Western Cape Government’s Provincial Powers Bill is not a federal bill. It is, manifestly, a devolution bill, and devolution is a concept that exists primarily in the context of a unitary state. It does nothing but confirm a power the provincial government already has: to nicely and politely ask the ANC government in Pretoria to transfer more authority downwards.

A provincial government committed to the federalism that already exists in the Constitution would not ask for permission. It would simply do what needs to be done.

There is nothing resembling unconstitutionality about the bill.

The ANC, then, is expending significant political capital on fighting a damp squib. Its likely agenda is to oppose the normalisation of a ‘more federalist’ discourse, and in that respect its hysteria is a good thing. It shows that things are changing in South Africa, and even the once dominant ANC is seeing the writing on the wall.

The Western Cape Provincial Parliament should, ideally, fire each of its so-called ‘legal advisors’ who (apparently) said the bill is unconstitutional. They had a defective legal education, seemingly confirming the Council on Higher Education’s concern in recent years with the quality of the law degrees awarded by our universities. But having obtained a few of these degrees myself, I am not quite sure why they would make such basic mistakes about plain old devolution.

Who is to blame?

What the ANC is entirely correct about, is that the Western Cape Government has failed to use the powers it already constitutionally possesses to their full potential. This is unquestionable, and if this was the focus of the ANC’s criticism, I would (as a federalist) stand in their corner.

Ultimately, the lack of federalism in South Africa is not the fault of the ANC. The ANC begrudgingly acquiesced to the adoption of a federal Constitution, but the party itself has never been federalist.

Instead, the blame must fall squarely on formations like the DA and Inkatha Freedom Party (IFP), both with illustrious federalist heritages but with pitifully little to show for it.

Pleading with the ANC government for devolution will yield nothing given the ANC’s predisposition in favour of centralisation. If DA and IFP municipalities and provinces want to do certain things, they simply need to roll up their sleaves and get to it.

The ANC government has lost all expertise and capacity and can, to a degree, be ignored. Its handwringing on federalism and devolution can also simply be laughed off as the childish hysterics that it is. Pay it no heed. Focus attention on provinces and municipalities with capacity, and demand that they get their acts together.