The Potential for Constitutional Devolution in South Africa

Recognizing that secession is usually best reserved as a last resort in political and constitutional disputes, given that secessionist agitation often flares up into violence, this article proposes an alternative—namely, the constitutional path to devolved government.he African National Congress (ANC) today rules South Africa, formally a federation, as though it were a unitary state. There has been increasing agitation in recent years for the secession of the Western Cape province, which since South Africa ended apartheid in 1994 has never returned a majority vote in favor of the ANC.Room exists in South Africa’s Constitution, adopted in 1996, for substantive political devolution, which, it is argued, must be attempted before blood is spilled in the name of national independence. However, calls for more autonomy—whether secession or devolution—are routinely derided as merely attempts to entrench the interests of right‐​wing whites. Yet the facts reveal that such calls are increasingly supported by representatives of all racial groups, united around disillusionment with the central government in Pretoria.The ANC, which controls the central government and eight of the nine provinces of South Africa, does not allow the various governments it controls to pursue policies incompatible with the party’s political program. This, among other factors, has led to calls for secession, particularly of the Western Cape province, which has never returned a majority vote for the party ruling nationally.Secession, as opposed to devolution, is complete political and constitutional separation by a region from its mother state. Prominent protagonists of secession have, however, also noted that they regard the devolution of power as a next best option.1 Devolution means a grant of power by central governments in unitary states to lower levels (“spheres” in South African constitutional terminology).Recognizing that secession is usually best reserved as a last resort in political and constitutional disputes, given that secessionist agitation often flares up into violence, this article proposes an alternative—namely, the constitutional path to devolved government. It begins with a brief recent history of federalism in South Africa, analyzes the provisions regarding decentralization in the present Constitution, concludes that a reasonable reading of the Constitution leaves room for substantive political devolution, and recommends that option as a peaceful and ordered alternative to secession.Federalism at the End of ApartheidSouth Africa’s transition out of apartheid can be said to have started in 1990 (Humphries and Slack 1991: 165), although the National Party (NP) by the late 1980s was consciously seeking to move away from the policy that had defined it since 1948 (Van Rooyen 1988: 21–23). The transition can be said to have ended in 1996, with the adoption of the Constitution. During this period, after a hiatus, interest in federalism and devolution again came about, with only the Democratic Party (DP) at the time having been a consistent advocate of federalism since the 1960s (Asmal 1994: 49).2After the provincial governments were abolished in 1986, representatives of all South Africa’s major racial groups gathered in Durban at the KwaZulu‐​Natal Indaba.3 They sought to address the issue of South Africa’s apartheid system within the context of the Natal province and KwaZulu homeland, and the general loss of provincial autonomy (Lynch 1986: 232). This was the first time in decades that Natal, this time joined by many other types of formations, once again found itself at the forefront of calling for federalization of South Africa. Any suggestion of secession was, however, expressly excluded (ibid.: 233). Formations in the western part of the Cape province, always more liberal than the remainder of South Africa, indicated their interest in a similar indaba for their region (ibid.: 247).The Indaba’s proposals, which Lynch (1986: 235–41) discusses comprehensively, were rejected by conservative Afrikaner racialists and by the ANC, at the time still a banned organization. The former averred that there was insufficient power‐​sharing, which Lynch in his analysis disputes, and the latter claimed to be interested only in an unqualified nonracial, unitary arrangement. Lynch opines that the ANC’s rejection of the Indaba proposals revealed “their political intentions” of “a monopoly of power” after the end of the white regime (ibid.: 242–43).The NP, however, despite having publicly committed to ending apartheid by this time, still practiced political centralization, and did not want the Indaba’s proposals to undermine its abolition of provincial government and their replacement by regional services councils (Lynch 1986: 244).Probably the most well‐​known and radical decentralizationists before and during the transition were Louw and Kendall, who wrote the best‐​selling South Africa: The Solution in 1986. Cameron (1991: 157) summarized their proposal as follows:[They suggest] that the Swiss canton system would be most appropriate for South Africa’s circumstances. The major features of their model are the creation of cantons based on the present 306 magisterial districts as a starting point. Each canton would have its own parliament and possibly its own constitution, would be free to devolve power down to local authorities, and would determine its own economic, labour, transport, education, tax, subsidization, welfare and race policies.The central government would be responsible only for foreign affairs, national finance, defense, infrastructure, and internal affairs (Louw and Kendall 1986: 152).4The ANC, on the other hand, proposed a unitary state with “only one central legislature, executive, judiciary and administration,” which could delegate functions to lower spheres of government (Cameron 1991: 159). Humphries and Slack (1991: 179) note that the ANC wanted a unitary state inter alia so that it may “oversee the redistribution of resources.” Cameron (1991: 159–60) argued that this proposal “diminishes avenues for citizen participation in public policy” and that it would “be highly unresponsive to local demands and conditions.” However, given political realities, the ANC’s model was more viable than substantive devolution, as local governments would have access to greater finance through the central state and the central government could deploy its skilled staff to the local level.Asmal (1994), who had been associated with the ANC, explained that the September 1991 federalist proposals from the NP government limited the post‐​apartheid government’s functions to national defense and security, foreign affairs, and constitutional planning. All other functions would be borne by regional governments. The DP also sought a federal arrangement whereby the federal government was limited exclusively to foreign affairs, economic policy, water, labor policy, citizenship, currency, interregional commerce, defense, borrowing on government credit, immigration, trade, customs and excise, national transportation, and mineral and energy affairs (ibid.: 51).Asmal (1994) criticized the NP and DP suspicion toward central government authority, arguing that limiting the central government too much “is a recipe for constitutional immobility and constitutional warfare” (ibid.: 53). Asmal labeled these parties’ proposals for federalism as smokescreens forlocking wealth and resources into smaller units of government, where consensus decision making enables a veto to be used or where inordinately large majorities at the provincial executive level result in constitutionally protected walls of privilege—a recipe for the entrenchment of segregation and privilege [ibid.: 55].Asmal argue