“Obviously, no model is implemented in pure form in real life, but every polity or regime follows one or another of them and so is situated on one of the two continua, even if it makes use of dimensions of the other one to some extent. In that sense, the transitional constitution of South Africa reflects an unresolved difference of opinion among its framers, with some of its founding parties wanting South Africa to be on a unitary continuum and others on a federal one.”______________
by Daniel J. Elazar
Prologue
(June 04, Jeruselam, Sri Lanka Guardian) My first visit to South Africa was in 1974 when apartheid was at its height. Even at that time I was impressed with the winds of change that were gathering momentum and the qualities of the South African people of all races. Visiting South Africa rather inadvertently on my way between Nigeria and Brazil, I was immensely attracted by the country and the possibilities for a peaceful resolution of its problems and I found myself interested in coming back to provide whatever modest assistance I could in that direction. Subsequently, I have returned to South Africa eight more times, on all but one to be involved with those seeking a reasonable solution to the great problem facing its people. Each time I was more gratified that matters were moving along the right path, even if they were not always moving as I would have wished. Now they seem to have found it. It is in that spirit that I make my initial comments on the new South African transitional constitution.
The Uses of Federal Solutions
As a student of federalism, I have long since come to recognize what I believe are three basic political truths: One, federal solutions are the best means to enhance democratic republicanism in complex societies. Two, federal solutions are often the best way to resolve what seem to be intransigent conflicts through a combination of self-rule and shared rule whereby all legitimate parties are able to maintain their own integrities through self-government within a framework of power-sharing. Three, despite the advantages of federalism, it is by no means suitable for all peoples or polities or the best means for resolution of all conflicts. In order to succeed, there must be a will to federate, sufficient goodwill to make federal arrangements work, and a political culture able to bear those arrangements with the combination of moderation, willingness to negotiate and compromise, and a spirit of comity needed to make shared-rule relationships work. The progress of the negotiations between the parties in South Africa leads me to believe that the self-rule / shared rule possibility is a real one for its people and that the appropriate will, goodwill, and political cultures exist.
The Transitional Constitution
This is not to say that the transitional constitution is federal in the conventional meaning of the term -- i.e., establishes a federation. That decision has not yet been made one way or another, but the document does establish parameters which suggest that whatever emerges will be, in some respects, a federal arrangement if not a federation. Nor is the term used to describe the end result, its most important aspect; far from it. Whatever arrangement is agreed to, the people involved in making it work must be comfortable with it and it must accommodate the major legitimate groups and interests in South Africa. What is critical, however, is on which continuum of government that arrangement finds itself.
Some have supposed that federal and unitary arrangements are located on the same continuum of government, based on the degree of centralization or decentralization they provide. I would argue that this is an erroneous assumption, that the two approaches are on different continua. Of the three regime models identified by political scientists and philosophers, two, the hierarchical and the organic, are based on the assumptions that political authority and power must flow from one single point, however they may be delegated for practical purposes; in the case of the first, from the top of a power pyramid, and in the case of the second, from the center to the peripheries. The third, federal, model is the only one that sees the polity as composed of a nonhierarchical, noncentralized matrix of several or many fundamentally equal cells in which the general government is a framing institution that embraces all of them and in which authority and powers are distributed among them all by a constitution.
Obviously, no model is implemented in pure form in real life, but every polity or regime follows one or another of them and so is situated on one of the two continua, even if it makes use of dimensions of the other one to some extent. In that sense, the transitional constitution of South Africa reflects an unresolved difference of opinion among its framers, with some of its founding parties wanting South Africa to be on a unitary continuum and others on a federal one. The transitional constitution is a compromise in which the crucial issue remains at least formally unresolved, as was true in the post Franco Spanish Constitution of 1978 that successfully established democracy in that country. Nevertheless, however much it is a synthesis, it must lean in one direction or another in practice.
Federal arrangements rest fundamentally on three necessary items: One, a constitutional pact; two, noncentralization; and three, negotiated cooperation and bargaining within the noncentralized constitutional framework. These arrangements manifest themselves, or one or two axes: territorial and consociational. The transitional constitution seems to make at least some provision for all three items and both axes plus other elements which suggest that it is leaning toward the federal model. One, the constitution is, as its preamble states, a solemn pact among equals, the essence of any constitutional federal bargain. Two, the transitional constitution recognizes the pluralism and multiculturalism of South African society, explicitly in Chapter One, Section 3, where it provides for the national recognition of eleven official South African languages and provides for the provinces to recognize additional ones as official provincial languages, and further provides for a pan-South African Language Board established by the Senate, i.e., the national chamber of the provinces, "to further the development of the official South African languages." There is every likelihood that such a board, and the several other to be established for other functions under the constitution, will be a collegial body of the kind used to make many federal arrangements work on the basis of equality among the partners.
The federal leaning of the transitional constitution is modified by its provisions for national citizenship as the cornerstone of the franchise in national, provincial, and local elections. This is a common enough feature of federal arrangements of a national character. At the same time, the declaration of the supremacy of the constitution which immediately precedes the establishment of citizenship clearly makes the constitution rather than national government the supreme authority in the country as in other democratic polities, particularly federal ones.
In Chapter Three on fundamental rights, while, like all bills of rights, this is essentially directed to the protection of individuals, it does provide limited forms of group rights, particularly in relationship to religion, language, and culture, and to some extent with regard to education.
The parliament outlined in Chapter Four has most of the characteristics of a federal assembly, consisting as it does of a National Assembly that includes members who are elected from provincial lists, and a Senate elected on the basis of equal representation from each province, elected by the provincial legislatures. On the other hand, the Senate is limited in its powers to control taxation and appropriate funds. In both, the National Assembly is ultimately supreme (Section 60).
The provinces have some protections with regard to their boundaries, powers and functions, in that both the National Assembly and the Senate must enact any changes and in the Senate a majority of a province's senators must accept the change before the Senate can enact it (Section 61). This is not entirely federal since the process can be done by the national legislature, but it does include some protections. Moreover, the executive and legislative competencies of a province can only be changed with the consent of the provincial legislature (Section 62).
The Senate is provided other protections with regard to joint sessions of parliament and constitutional change. Even more important with regard to the permanent constitution, the boundaries, powers, and functions of the provinces cannot be changed without a two-thirds majority of all of the members of the Senate and then again by at least 60 percent of all members of the Senate. The National Assembly and the Senate together elect the president. All told, 290 of the 490 members of the parliament or nearly two-thirds come from provincial constituencies.
The federal dimension of the transitional constitution finds another expression through certain consociational arrangements which are properly based upon territorial political divisions (i.e., the provinces) which, as experience in other countries shows, is the only way that they can survive. These include election of the National Assembly on a proportional representation basis, half from national lists and half from provincial lists of party candidates, and the provision for executive deputy presidents for every party holding at least eighty seats in the National Assembly. Also, a party holding at least twenty seats in the National Assembly which has decided to participate in the required government of national unity should be allocated one or more cabinet portfolios in proportion to the number of seats that it holds in the National Assembly through a formula that takes into account its strength relative to the other parties. This consociational dimension runs parallel to the territorial federal dimension and is intimately tied to it at certain critical points, allowing the various communities of South Africa to find means of expression through party politics and elections, giving additional thrust to the consociational dimension.
Even the court system is designed to provide for consociational, provincial, and local organization, not as separate courts but as divisions of the key national courts; once again, a compromise between a fully federal or consociational arrangement and the realities of the South African situation that emphasize the preservation of national unity in the manner decided by those seeking unitary government.
In Chapter Eight, along with the requirement that there be a national public protector, the provinces are authorized by the constitution to enact legislation establishing provincial public protectors within a context whereby the national public protector has concurrent jurisdiction within the provinces. In addition, traditional communities are written into the constitution in matters involving the restitution of land rights.
Chapter Nine is devoted to provincial government. The nine provinces are specified in the constitution as the provinces of the republic. At the same time, provisions are made for either agreement within the provincial legislatures or referenda to determine the disputed areas assigned to one or another province, the division of the Eastern Cape into two separate provinces, and the continued existence of the Northern Cape as a province.
Each province will have a legislature with concurrent competence with parliament to make laws for the province within a list of scheduled functional areas. Nevertheless, acts of parliament will prevail over those of provincial legislatures for a variety of reasons defined with relative vagueness to allow great parliamentary discretion. Provincial legislatures will have no areas of exclusive competence but some vague protections against parliamentary preemption in some fields.
Chapter Nine sets a framework for the size of provincial legislatures, requires their election by proportional representation, and provides for their duration, dissolution, elections, and organization either in a general or specific way. In essence, Chapter Nine is a partial common constitution for the provinces, including fifty sections and defining a rather complete frame within which provincial constitutions must fit. The chapter also provides for provincial executive authority headed by a provincial premier in a parliamentary system, governing within the framework of the transitional and provincial constitutions in conjunction with an executive council of not more than ten members appointed by him which must include any party holding at least 10 percent of the seats in the provincial legislature that has decided to participate in the executive council and be given a portfolio or portfolios accordingly.
Chapter Nine also provides that a province shall be entitled to an equitable share of revenue collected nationally, established on a percentage basis by act of parliament or as a conditional or unconditional parliamentary allocation, all of which are to be determined by the national parliament. A province may also levy taxes, surcharges, or other levies when it is authorized to do so by parliament upon the recommendation of the Financial and Fiscal Commission and provided that there is no discrimination against non-residents of the province who are South African citizens. It may also charge user fees and borrow money but within the framework that the national parliament provides. In addition, national funding for local governments shall ordinarily be made through the provincial government. In many respects this is the most potentially restrictive condition on provincial powers in the constitution.
Provincial legislatures are authorized to enact provincial constitutions provided that they pass the review of the national constitutional court. All these provisions are subject to review and recommendation by a commission on provincial government to be appointed by the president of the republic to determine the final provincial framework and powers of the country, subject to a list of constitutional provisions reflecting the general concerns of the transitional constitution. The structure and functioning of the constitutional commission is specified at the end of Chapter Nine.
The transitional constitution also provides for local government in Chapter Ten, a short general chapter consisting of seven sections designed, inter alia, to establish the autonomy of local government within the overall constitutional framework and delineate its powers in a general way. The connections between local and provincial government are either provided in a vague manner or in ways designed to protect the rights of local government to obtain a share of provincial revenues.
As part of the consociational dimension of the transitional constitution, traditional authorities are given constitutional status in Chapter 11. Traditional authorities must have preexisted the transitional constitution in order to gain constitutional recognition. In addition, each province must establish and empower a house of traditional leaders with powers to delay legislation. Nationally, a council of traditional leaders with advisory powers is to be established.
The financial and fiscal chapters of the constitution provide both protections and limitations for the provinces along with the national and local governments.
A public service commission is established (Chapter Thirteen) with powers over both national and provincial governments designed, inter alia, to provide for a more equitable distribution of public service jobs for all groups in South Africa. The chapter also provides that provincial legislatures may establish provincial service commissions subject to national norms and standards.
A South African police service is to be established to function at both national and provincial levels under the direction of both the national and provincial governments. The provinces are granted explicit powers to maintain or raise the national level in Section 17. Provincial commissioners are established. Provincial officials are given potentially extensive police powers within the national framework. Local policing powers are also established.
A system is also introduced in the chapter for a degree of consociational oversight over the national defense force or army.
Chapter Fifteen provides for general and transitional provisions for both the national and provincial governments that should provide for the organization and implementation of the powers and limitations provided elsewhere in the transitional constitution while protecting those existing institutions which will survive after the transition. Schedule 1 of the constitution specifies the areas to be included in each province according to district. Schedule 2 apportions the seats of the National Assembly and the provincial legislatures, providing the number of seats by province for the former and the number of seats in each provincial legislature for the latter.
Schedule 4 lists 33 constitutional principles upon which the South African constitution is based, including federal principles, both consociational and territorial, with the principles for the distribution of powers among them. The constitution was enacted as an act by the South African parliament under the title "Constitution of the Republic of South Africa, 1993." The constitution closes with the motto: "May God bless our country" in six languages.
Some Thoughts About the Document
The transitional constitution clearly falls within the model of the constitution as code prevalent in countries of continental Europe. With the attached schedules, it is some 250 pages long and very detailed. Like other constitutions of this model, it is designed to reorganize an existing state and tries to carefully provide for every relevant contingency. Such constitutions try to allow for as little discretion as possible, although, as we have seen, there is considerable discretion provided, especially for the national authorities, on matters of national-provincial relations.
For a constitution as detailed as this, several things are clear. First of all, South Africa is referred to as a republic rather than emphasizing its present designation as a state. That is important for democracy. Second, it is explicitly not a federation and clear national supremacy is specified. Yet at the same time it is almost as clearly a federal arrangement in that the provinces are anchored and constitutional protected in the document as are their powers, at least on a concurrent basis. There can be a great deal of noncentralization within the framing of this constitution if the parties involved wish it and there is a limit on the degree of centralization possible.
In all of these respects, the transitional constitution reminds one of the Spanish Constitution of 1978 which provides for the division of Spain into constitutionally established and empowered autonomous regions that are at one and the same time vested with certain powers or competencies, yet are not explicitly federal states. That constitution shifted Spain from a unitary, hierarchical governmental pyramid into a federal model that constitutionalized both self-rule and shared ruled, albeit in a way that seemed suitable to the Spanish situation rather than one that fitted any precise definition of a federal system. The direction of subsequent Spanish development has been to intensify this federal model without formally becoming more of a federation.
Indeed, the Spanish constitution is even less federal than the South African transitional constitution in at least one respect. The autonomous regions do not have as much of a role in the composition and direction of the national government, qua regions. But, as the Spanish have shown us all, it is not the precise name or definition that makes the difference, but the paradigm shift to constitutionalized power-sharing.
That is the great achievement of both the South African constitutional framers that offers so much promise for the future. The details will still have to be worked out, mostly through practice and experience, but also through appropriate theoretical considerations in light of experience. That is both the challenge and the opportunity. All South Africans can already foresee the difficulties involved in the process. Yet the fact that a good beginning has been made counts for a great deal.
Notes
1. Robert A. Licht, (ed.), "How Present Conceptions of Human Rights Shape the Protection of Rights in the United States," in Old Rights and New, (Washington: American Enterprise Institute) 1993, pp. 38-50.
2. Daniel J. Elazar, Exploring Federalism (Tuscaloosa: The University of Alabama Press) 1987, Chapter 2.
3. Daniel J. Elazar, "Federal Models of (Civil) Authority," in Journal of Church and State, Vol. 33, No. 2 (Spring 1991), pp. 231-254.
4. Daniel J. Elazar, Exploring Federalism (Tuscaloosa: The University of Alabama Press) 1987, Chapter 6.
5. Daniel J. Elazar, "Federalism and Consociational Regimes," in Publius, the Journal of Federalism, Volume 15, Number 2, Spring 1985, pp. 17-34.
6. Daniel J. Elazar, "Constitution Making: The Preeminently Political Act," in Keith G. Banting and Richard Simeon's (eds.), Redesigning the State: The Politics of Constitutional Change (London: Macmillan Press) 1986.
7. Diaz Lopez, Cesar Enrique, "The State of the Autonomic Process in Spain," in Publius, The Journal of Federalism, Vol. 11, No. 3- 4, Summer 1981, pp. 193-217.
(Professor Daniel J. Elazar (1934-1999) was a leading political scientist and specialist in the study of federalism, political culture, the Jewish political tradition, Israel and the world Jewish community. As founder and President of the Jerusalem Center for Public Affairs, he headed the major independent Jewish "think tank" concerned with analyzing and solving the key problems facing Israel and world Jewry.)
- Sri Lanka Guardian
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