South Africa

OP-ED

Tshwane: Political intervention in elected local councils sets a dangerous precedent

Tshwane: Political intervention in elected local councils sets a dangerous precedent
On 10 March 2020 the Gauteng Executive Council decided to dissolve the City of Tshwane Metropolitan Municipality and appoint an administrator for a maximum period of three months until an election could be held. The matter has now been taken to the Supreme Court of Appeal. (Photo: Flickr / Raphael de Kadt)

The constitutional provisions for provincial and national interventions in municipalities are at serious risk of being abused politically and undemocratically. The dissolution of the Tshwane municipality is a case in point.

Whether democracy is invariably the most efficient way of delivering good and just government is a matter that political theorists and political scientists debate. The fact is that, in the 1990s, South Africans made a historical and, in our view, correct decision to achieve whatever good we are seeking to achieve via democracy. And not just any democracy, but one that is representative, participatory, responsive and accountable.

Like other major historical questions, this one has consequences. One is that we are wagering on elective government to do good by the citizens who elected it; another is that, unfortunately, voters must to some extent bear the consequences of choosing representatives badly. Within limits, to be sure; and we have constitutionally armed courts and other institutions to enforce those limits. But still, this is not just a constitutional democracy; it is a constitutional democracy.

It follows that, wherever possible, voters’ choice of representatives should be respected rather than overturned in the name of good government. Legislative bodies should not be lightly deposed and either be subject to non-elective administration or be forced into new elections at the behest of outside bodies. This may seem an obvious point, at least measured by our normal intuitions about democracy’s meaning. But it is not always obvious in South Africa.

And, indeed, there are moments in South Africa when the opposite seems just as obviously true: that a seriously badly performing government – one that is failing a people mired in poverty and inequality, and demanding better – should be deposed and replaced by more competent politicians or by technocrats. There are in South Africa, after all, constitutionally specified social rights that governments are obliged to seek to realise within available resources. And in South Africa the governments liable to do the interfering in, or deposing of, elective governments are not military juntas but themselves higher elective branches charged with responsibility to a wider set of interests.

The notion of deposing elective government might seem to belong to the discussion of some other state rather than that of our own cherished democracy. But the fact is that constitutional provisions permit provincial governments, with endorsement from the National Council of Provinces and national Cabinet ministers, to remove entire local councils where these are failing to discharge their duties.

Section 139 of the Constitution gives provincial governments the power to intervene in the affairs of local government when the latter “does not fulfil an executive obligation”. In the first instance, a provincial government may issue a directive to the municipality requiring it to take remedial action. Secondly, in terms of Section 139(1)(b) a, a Provincial Executive may intervene to assume responsibility for an obligation that is not being performed by the municipality. In exceptional circumstances, the Provincial Executive Council may dissolve the municipal council and appoint an administrator until a newly elected municipal council has been elected. The latter provision was used by the Gauteng Provincial Executive to dissolve the Tshwane municipality earlier this year.

Democracy is not just one agreed thing, of course; there are different models of democracy. South Africa appears to be a federation of some sort, but what sort? It seems to us that three guiding principles as to its character are relevant here, some operating in the background and others stated more or less explicitly.

In the 2016 local government elections, the ANC lost political control of key metropolitan municipalities in Gauteng. In Tshwane, it received 41.25% of the vote to the DA’s 43.15% of the vote. Initially, the EFF, which won 11.63%, helped to sustain a DA-led minority coalition from the outside. As the DA-EFF relationship broke down, the municipal council became dysfunctional to the point where it was incapable of taking any action.

On 10 March 2020, the Gauteng Executive Council decided to dissolve the City of Tshwane Metropolitan Municipality and appoint an administrator for a maximum period of three months until an election could be held.

The DA launched court proceedings to prevent the municipality from being dissolved. The high court found that the ultimate reason for the dysfunctionality of the municipality was the inability of the municipal council to get a quorum. This was because members of the ANC and the EFF refused to attend meetings.  

The high court, in our view, correctly found that the council should not have been dissolved by the Provincial Executive and ordered the councillors to return to meetings in order to fulfil their democratic obligations. The matter has now been taken to the Supreme Court of Appeal.

While it remains to be seen how this case will be resolved, our concern is that the constitutional provisions for interventions in municipalities are at serious risk of being abused politically and undemocratically.

They offer the temptation of an apparent administrative fix, ignoring the multiple ways in which the crises dogging councils are political in origin and, in part at least and unavoidably, in their solution. 

And our concerns are amplified by two basic premises.

One is that as South Africa is moving into a near-term future where the ANC will be increasingly likely to lose absolute majorities at many levels of governments, without any one party or ideologically stable coalition commanding a majority in its place. In this circumstance, crisis-ridden coalition politics is likely to become the norm, not exceptional in any way; and calls for extra-democratic interventions to resolve local crises are likely to become ubiquitous.

A second, sad, premise is that the delivery crises of local governments are unlikely to be permanently stayed any time soon, not even in the most efficient local governments. There will be, even in the most effective municipalities, delivery failures that the politically motivated opposition groups can exploit, not as campaign material to win the next election, but as pretexts for inviting provincial and national bodies, or judges, to do the work of getting their political rivals out of the way.

In short, there will be new opportunities, and new temptations, to overturn local democracy for partisan advantage.

Democracy is not just one agreed thing, of course; there are different models of democracy. South Africa appears to be a federation of some sort, but what sort? It seems to us that three guiding principles as to its character are relevant here, some operating in the background and others stated more or less explicitly.

If the constitutional cupboard turns out to be bare of robust pretexts to enforce quorums, another solution is legislation. Section 154 (1) of the Constitution requires national and provincial governments “by legislative and other measures” to “support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions”. It is in the enlightened self-interest of all parties to enact measures that protect themselves against anti-democratic mischief by opponents.

One is an idea that local democracy is more democratic than centralised democracy, ceteris paribus. It facilitates more responsiveness, accountability and participation. A second is the idea of checks and balances. Here the assumption is that one part of the state will check other parts, the better to protect basic rights and facilitate good governance overall. The third is the idea of co-operative government. This holds that all the branches and layers of the state must cooperate in a shared pursuit of a constitutionally framed common good.

How do these three imperatives relate to the issue of intervention in local government?

Clearly the local democracy imperative underpins, well, local democracy.

The checking-and-balancing imperative cuts two ways. It could be read as preserving a strict division of turf between branches and levels, problematising the collapse of one branch or level by another. But it could also license a certain amount of blocking of other branches and levels when the latter go awry. It is more common in democratic theory to think of local democracy as counterbalancing unitary central government than of central government checking the local. Moral and democratic imperatives may require either checking move. There is still, though, a profound sense in which deposing any elective government goes beyond the normal routines of checking and balancing.

The relationship of cooperative government to democracy is somewhat mysterious. Is this a democratic imperative, perhaps appealing to an ideal of collective public-interested deliberation? Or is it driven largely by considerations of efficiency or just outcome, the assumption here being that, unless elected representatives cooperate rather than compete, fundamental constitutional imperatives will be left unrealised?

Whichever interpretation is right, co-operative government certainly appears to require that governments resolve problems collectively. This might warrant intervention by higher tiers to correct dysfunctional lower tiers. But if it is precisely to involve cooperation, not endless politicised conflict, it will require wherever possible cooperation based on the mutual consent of organs at different levels of state.

Interpreted thus, all three imperatives support the need to treat drastic intervention in lower branches as highly exceptional.

It is easy to think that philosophy is less relevant here than the ANC and the manifest incompetence with which its councillors often discharge their duties. DA councils claim to do better when it comes to delivery, and many liberal commentators cheer when higher levels of ANC-led government intervene to address dysfunction in lower levels of ANC-led government. 

But the Tshwane case is instructive. It reminds us that the ANC too can play the interventionist game. Whether its motives in doing so are pure is beside the point. All parties, including the DA, engage in partisanship and political opportunism. The bigger point is that restricting the scope of intervention should protect all parties. We see local coalition crises providing numerous occasions for intervention, whether plausible or partisan. It is as well to anticipate these in our thinking, and in our laws and rules.

Two remedies are needed. The first would make it impossible in the first place to collapse elected councils from within. The second would define more narrowly the circumstances in which higher elected bodies can intervene to collapse local councils.

What is needed, first, is a remedy to prevent the politically motivated manufacture of crises designed to precipitate external intervention in the affairs of a council. It should not be possible to paralyse a legislative body’s ordinary operation by denying it a quorum. Paradoxically, protecting against this itself requires external intervention – not to collapse councils, but to compel councillors to turn up. This is what the court offered in Tshwane. This remedy needs to be embedded in democratic, cooperative and functional principles in the Constitution rather than, as in this case, the code of conduct for councillors, which enforces individual discipline.

One option is for the court to order recalcitrant councillors to return to the council chamber by virtue of Section 160(8) of the Constitution. This enjoins members of a municipal council “to participate in its proceedings and those of its committees in a manner that allows parties and interests reflected within the Council to be fairly represented” and “is consistent with democracy”. This obligation cannot be enforced in the absence of a constitutional sanction against coordinated walk-outs. It is an obligation that devolves on individual councillors and, arguably, also on political parties as foundational elements of South Africa’s constitutional democracy.

If the constitutional cupboard turns out to be bare of robust pretexts to enforce quorums, another solution is legislation. Section 154 (1) of the Constitution requires national and provincial governments “by legislative and other measures” to “support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions”. It is in the enlightened self-interest of all parties to enact measures that protect themselves against anti-democratic mischief by opponents.

There certainly will be occasions when radical intervention is unavoidable, morally and perhaps constitutionally, even if it collapses a council. There is, in any government, an imperative to avert humanitarian crises, what Estlund has called the “big bads”. There will be occasions when there is wide cross-partisan agreement about the necessity for dissolution, and a go-ahead from courts. Local democracy can go horribly wrong, and its democratic value cannot override all other considerations. We are thus calling for the further tightening and narrowing, not the complete removal of dissolution provisions. It must be made clear that incompetence and delivery failure are not on their own enough to justify dissolution. Section 139(1)(c), which allows for dissolution of local councils, should rarely be invoked.

Our main concern is to open eyes to dangers that lie ahead – dangers of controversial and politicised intervention in elective local government, and of this happening on a rising scale, and to the detriment of all parties, not to mention the legitimacy of democracy. DM

Victoria Bronstein is Associate Professor in the School of Law at the University of the Witwatersrand.

Darryl Glaser is Professor in Political Studies in the School of Social Sciences at the University of the Witwatersrand.

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