South Africa: Reluctant
Richard Simeon
Some South Africa/Iraq parallels
Colonial past
Non-democratic rule by one minority
Close to civil war
International context fostered conflict, hindered
• Deeply divided society
• Yet South Africa is one of the most successful
democratic transitions – are there lessons for
History, Context
• Colonialism, white domination
• Culminating in Apartheid (total separation of races) in
• Denial of citizenship, removals, creation of Bantustans,
banning of parties, etc.
• Liberation struggle – approaching full civil war in
• Stalemate, end of cold war, leads to start of transition
• Both sides know they cannot win
• Few predict success
Why the fear?
• Deep division, inequality between black and
• Worry that when white rule ended,
ethnic/tribal differences among blacks would
divide the country.
• White elite had kept a lid on these potential
conflicts; but also exploited them in ‘divide
and rule’ strategy
Basic elements of the constitution
• Pure proportional electoral system
• Bicameral system: National Assembly and National Council
of the provinces
• Presidential – but President is leader of largest party in
• Like British Prime Minister, but does not sit in the Assembly
• Powerful, strong Bill of Rights: Note includes social an
economic rights, derogation clause
• Strong, independent Constitutional Court
• Set of independent institutions to protect democracy –
Electoral Commission, etc.
The transition
• Preliminary trust-building: the fish hook story
• Unbanning of black parties; release of Mandela and
other prisoners.
• Difficult negotiations lead to Interim Constitution
(1993); final constitution can only be legitimate after
democratic elections
• First elections, 1994. ANC majority
• Members of the national Assembly and NCOP
constituted as Constitutional Assembly
• Final constitution 1996
• Certified by Constitutional Court
Reconciliation and the rainbow Nation
• ANC had never been a black nationalist party;
always emphasized a non-racial South Africa
• Many whites and Indians participated in the
• Establishment of Truth and Reconciliation
Commission. Confront the past, but move on
• This was no accident: reconciliation message
is communicated extensively, through all
media. Examples.
South African Diversity
• Major division is black – white: 85 per cent black
• Diversity within black community: many tribal
groups (two largest Xhosa, Zulu).
• Diversity in white community: Afrikaans and
• Other significant groups: ‘’colored,” Indian
• Language: 11 official languages
• Nine provinces: diverse in size, wealth,
demographic makeup
Managing diversity
• History: dominant whites manipulated ‘’tribal’’
identities as part of divide and rule strategy;
created Bantustan ‘’homelands’’
• In transition, some argue for a SA organized
around tribal/language identities
• ANC argues for non-ethnic, non-racial South
Africa, with aim of transcending difference not
reinforcing it.
• Question: which is the most effective strategy?
Result: Recognition without
• South Africa constitution recognizes and
celebrates diversity – ethnic, religious, etc.
• But seeks to express these differences in the
private sphere, and to minimize their
expression in the public, governmental sphere
• Why? Belief old regime manipulated ‘’tribal’’
identities to divide and rule; fear of politicizing
Major success
• Many feared once White rule ended, internal
conflicts among Blacks would escalate
• One major example: movement for autonomy of
Zulu people in Kwa-Zulu Natal. Considerable
• Today: linguistic/tribal conflict has declined, not
• Issues today: primarily economic, class issues
• Question for Iraq: Is it possible to shift primary
debate from sectarian questions to other issues?
The constitutional process
• Three stages: Interim Constitution, 34 Principles,
elections, final constitution
• Constitution as ‘’pact’’ – settlement of a longlasting conflict – and as a framework for
governance in the future. Possible tensions
• Constitutional Assembly: negotiation among
elites, but extensive public education and
participation – essential to long term success
• Effect: disempowered citizens learn about voting,
rights, rule of law
Past and present in the SA Constitution
We the people:
• Recognize the injustices of our past
• Honor those who suffered
• Respect those who have worked to build and develop our
• Believe that South Africa belongs to all who live in it, united
in our diversity
• Purpose: to heal the divisions of the past and establish a
society based on democratic values, social justice and
fundamental rights
• Note similar words in Iraq constitution: how to make them
• Constitution provides for initial period of power-sharing
• A party that wins 20 per cent of the vote gets a Deputy
• One that wins five per cent of vote gets a cabinet minister
• Soon ends, but assisted the transition
• Reality: despite PR, SA is a one-party dominant state,
because ANC, party of liberation, has massive support in
black community
• Wins almost three quarters of seats in last election – which
was free and fair
• Worries: dominant party may feel it ‘’owns’’ the system
Is it federal?
Like Spain and India the South Africa Constitution does
not declare South Africa to be federal
But it is federal in form:
• Three orders of government – ‘spheres ‘ – national,
provincial, local.
• Each with assigned powers
• Each independently elected
• Each protected by the Constitution, and the
Constitutional Court
• But it is a highly centralized form of federalism
The federalism debate
Central to the constitutional pact.
• ANC hostile to federalism
– Too closely linked to Apartheid and Bantustans
– Could institutionalize tribal and linguistic differences
that ANC wished to overcome
– Could limit capacity of central government to
undertake the massive developmental and
redistribution challenge that it faced
• Compare with ideology of Congress party in India
White community
Wants federalism: why?
• Fears tyranny of majority: wants to limit
powers of central government
• Prefers a plural South Africa organized around
• Along with strong Bill of is their bottom line in
• ANC reluctantly agrees
Federalism in SA/1: Chapter Three of
Three constitutional ‘spheres’ of government,
National, provincial, local
Are elements in a single system
Goal is ‘cooperative government’
The spheres are to be: ‘distinctive,
interdependent and interrelated’
• All are obligated to preserve the unity and
‘indivisibility’ of the Republic; no right to
Federalism in SA/2
Each sphere must:
• Provide effective, transparent, accountable
• Respect the status, institutions, powers, and
functions of government in the other two spheres
• Not encroach on the powers or integrity of other
• Must co-operate with each other in mutual trust
and good faith by
Federalism SA/3
Fostering friendly relations
Assisting and supporting one another
Informing and consulting with each other
Coordinating their actions
Avoiding legal proceedings against each other
(Appeal to Constitutional Court only as last
• These may only be ideals, but are they relevant to
governments in a federal Iraq?
Division of Powers
• Follows German model: few areas of exclusive
powers; most are concurrent
• Exclusive provincial powers are minor
• And even in these areas, the national government
can intervene to protect national security, unity,
national economy
• In shared powers, national government is
• Little provincial autonomy: provinces administer
national laws. Little law-making on their own
Fiscal federalism
• Central government dominant – controls all
major revenue sources
• More than 90 per cent of provincial revenue is
transfers from the center
• But Constitution guarantees an ‘equitable share’
of revenue to provinces to carry out their roles
• ‘Finance and Fiscal Commission’ advises on these
• May be conditional or unconditional; distribution
based on need
Representation of Provinces at the
• NCOP modeled on Bundesrat
• Provincial voice at center, designed to ensure
national laws take account of provincial needs.
• Vote as a block, on instruction from provinces
on Bills directly affecting them
• Requires super-majority in National Assembly
to override NCOP
• Not very effective
Intergovernmental Relations
• Governed by legislation
• Regular meetings of national and provincial
executives, including national President and
provincial Premiers
• National Department of Provincial and Local
Government seeks to manage process
• But tends to be top-down: center instructs the
Safeguarding the system
• Constitutional Court
• Has final power of judicial review of
constitutionality of any law
• Final arbiter of intergovernmental conflicts
• But may have bias towards the center –
Western Cape electoral law
• Monitoring, intervention powers of the center.
• This is a very highly centralized system
• ‘Quasi-federal’
• Very limited provincial autonomy, room for
Provincial Capacities
Provinces are weak in many ways:
• In political capacity: little strong presence in
minds of citizens
• One-party federalism: ANC dominant in national
government and in all provincial governments
• Provincial Premiers ‘deployed’ by ANC national
executive; little autonomy
• Responsibility is ‘’up’’ to the national government
more than ‘’down’’ to their legislators and
And in bureaucratic and fiscal capacity
• Several provinces lack human resources ability to carry out
assigned functions
• Inherited old, corrupt, incompetent Bantustan
• Problems with training, competence, corruption
• Hence often inability to deliver services
• Capacity building a high priority
• Monitoring, supervision and support from the center is
• (But note: many of same problems would appear if the
national government provided all services)
• A major question for Iraq: building capacity in regions
Local Government
• Provided in Constitution.
• Implemented only recently.
• Some believe that democratic local governments can
better serve citizens than provincial governments.
• But many local governments have even greater
capacity problems than provinces
• Relationship between local government and provinces
and local government and center are complex
• Desire to simplify system
Future of Federalism in South Africa
Three scenarios currently under debate:
• First, abolish provinces
• Second, turn them into administrative bodies, responsible
to center without elected legislatures
• Third, strengthen provincial capacity
• The debate: SA established 3 levels of government: was
that one too many?
• What is ‘value added’ of provinces? Are local governments
better placed to advance democracy and effective
• ANC to debate issue at its national convention; DPLG has
started a public consultation process
Future of Federalism/2
Some evidence of increasing regional identities and interests
• Regional divisions within the ANC may grow
• Regional politicians may become more jealous to maintain
their powers
• Regional identities may grow
• ANC dominance may end by splits – but likely not along
regional lines
• Larger role for strong provinces – Gauteng and Western
• Could South Africa follow the Indian pattern: starts out
highly centralized then becomes more federal?
• The success of the SA transition to democracy
• Of which federalism is only a part
• Reasons:
– Leadership – does it take a Mandela?
– International context
– ANC commitment to democracy, and to multiracialism since its start
– Prior tradition of rule of law
– Shared South African identity

South Africa: Reluctant Federalists