After the Bell: SA’s provinces are camels

It's a great analogy because you can just imagine how somebody on the committee would get a bee in their bonnet about water storage, and the design of the horse would have to be amended just to take account of one committee member’s obsession. Everybody would sigh whenever Water-Conscious Bob would start talking and then out of sheer frustration, they put a huge hump on the horse exactly where the rider would otherwise sit just to get the damn design done and dusted. 

SA’s provincial system is a bit like camel-design by committee.

Those a bit long in the tooth (moi, for one) will remember that one of the most contentious issues of the constitutional negotiations in the early 90's was about provincial powers. The ANC, convinced (correctly) it would win national power, wanted all the power housed in the national government. The National Party, convinced (correctly) it was going to lose national power but might win provincial power, wanted powers to be delegated to the provincial government as much as possible. 

The same sort of result is visible in SA’s provincial setup today. I think the ANC won this issue during the negotiations process by deftly granting the wish of the National Party (and many other parties, notably Inkatha which also had a larger regional support base), for the establishment of a provincial system, but granting the provinces only very, very limited powers. 

At the time, the National Party and its allies took solace in the fact that while the constitution might grant most of the power to national government (other than dog licensing and stuff like that), it also insisted on cooperation between national and provincial arms of government, giving provinces a say. But the big issue is that provinces have very limited ability to raise their own taxes, so they are always going to be under the thumb of national government. 

But the result has been quite honestly a bit of a mess. To be fair, it's a mess that is prevalent in almost all jurisdictions around the world — it's difficult to define, let alone delegate the allocation of powers, and to mete out appropriate finances is another can of worms. The argument has always been that the most effective delivery of services happens where the accountability is most intense and that is often lower down the power structure, closest to the people whose lives decisions touch. But how do you put that into practice?

From a governance perspective, one of the things you want out of a provincial structure is the capacity for parts of the country to experiment with new ideas and theories. One really good example of this is the decision by voters in the US state of Colorado to legalise cannabis for adult recreational use in 2012. At the time, the idea was castigated all over the US (and the world for that matter) because cannabis was considered potentially a “gateway” drug”. But when it was legalised after a ballot referendum, the state made a small fortune in tax from its sales and it turned out the “gateway” drug notion stopped at the gate. Conservative politicians, even those who supported the ban for decades, have now changed their minds and 19 other states have followed Colorado’s example.

In any event, SA has got the worst of both worlds; an extensive provincial government infrastructure, but one with very little power and almost no money of its own. There is only one provincial government in a position to challenge this and that, of course, is the Western Cape. What neither side of the debate at the constitutional negotiations considered was what would happen if the national government had the power but decided not to use it? Or would be incapable of using it? Or would be just too corrupt to actually do what it’s supposed to do? It was always assumed that if the national government had the power, it would exercise that power. What if it just can’t be bothered?

Partly out of frustration, partly out of a keen sense of political timing, the Democratic Alliance in the Western Cape have introduced something called the Provincial Powers Bill, which is nominally aimed at trying to remedy a situation in which the national government has the power but doesn’t act. 

The Western Cape branch of the ANC has taken umbrage because public hearings on the bill are about to begin. ANC provincial deputy secretary Ayanda Bans said "The DA is abusing its majority to push the separatist or secessionist Provincial Powers Bill against the Constitution and sound legal advice". SAPC provincial secretary Benson Ngqentsu said if the bill goes through, “We will make the Western Cape ungovernable,". (It will and they won’t).

You have to say, the bill is very politics-heavy. It's short, only about five pages long, and it doesn’t — and constitutionally can’t — move powers from national to provincial government. So it's all a bit moot, to be honest. The DA claims the bill is a “framework” but essentially what it does is insist the province examine areas where the national government ought to be doing something but isn’t and write a report about it. Then there will be a negotiation process — as there constitutionally must be - on how to fix the situation, and the provincial government might get charged with the responsibility (if they are lucky). 

Actually, I think this is good politics and a good idea. SA’s provincial system needs reform, and if the government is constitutionally required to perform certain services but doesn’t, what’s the harm if the provincial government gives it a go? Think of it the other way around. What you don’t want is the national government deliberately not performing a function to make it seem as though the provincial government is not doing its job. 

In policing, for example, I often think the national government is tolerating high crime levels in the Western Cape because it wants to make the province less attractive to semi-grants. But if that’s the case, it's not working. But more generally, as power at national level becomes more contested, we are going to see more pressure for powers to be delegated to provinces, and honestly, I don’t think that would necessarily be a terrible thing - even for provinces run by the ANC.

Happy investing,
Tim Cohen