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Opinionista

A one-word amendment to the Constitution could make all the difference

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Ian Dewar is an independent researcher and designer of sustainable systems for promoting rural ecological economics. He works under a mandate granted to him in 2000 by the RDP Forum of Greater Plettenberg Bay (now the Bitou Municipality).

Governance. There’s one word in Section 152 of the Constitution which states that objective (a) of local government is ‘to provide democratic and accountable government for local communities’. The one-word amended clause should rather state that it is ‘to provide democratic and accountable governance for local communities’.

In his Opinionista piece of 4 November Omry Makgoale arrows straight to the crux of South Africa’s political quagmire. He states that this problem “is not created by political parties, but by the parliamentary electoral laws, which give no power to voters over MPs and provincial councillors, and all power to party headquarters”, and that this problem will continue “until we have an electoral system that balances representivity with accountability”.

I agree with this assessment, but would add one crucial tier of representatives to those of MPs and provincial councillors — that of local councillors. They are the tier of representatives who in fact engage directly with the citizenry on the ground.

To affect the balancing of “representivity with accountability” he recommends, I would argue that this additional tier is where the electoral system could begin to be lawfully balanced with a one-word constitutional amendment.

The one word in question is in Section 152 of the Constitution which states that objective (a) of local government is “to provide democratic and accountable government for local communities”. The one-word amended clause would rather state that it is “to provide democratic and accountable governance for local communities”.

The immense significance of making a lawful distinction between “government” and “governance” cannot be understated; it would allow the historical conflict of interests between “politics” and “democracy” to be eliminated and thus enable the realisation of real constitutional transformation.

The distinction is that “government” refers to the decision-making role of formal or elected political representation, and “governance” refers to the statutory or lawfully compliant action-taking in accordance with those formal decisions.

In their amended local context “government” would then refer to the executive political authority over matters of local law and policy decision-making, and “governance” would refer to the local statutory entities that take their lawful actions according to that executive decision-making.

Simply put, what this distinction would allow is a clear definition of the distinct but interdependent roles of the three different agencies in municipal government identified under the heading “Legal nature” in Section 2 (b) of the Municipal Systems Act. These agencies and their roles are:

  • Agency 1: The proportional political representatives of local council with the overall executive role of scenario planning and local policy decision-making.

  • Agency 2: The municipal administration with the statutory role of lawfully-compliant action taking according to those executive scenarios and decisions.

  • Agency 3: The democratic citizenry of the local municipality with the role of participating meaningfully in those political decisions and administrative actions plus in holding both agencies accountable for their performance according to the citizenry’s needs and aspirations.

In order to avoid the risk of any conflict of interests between the political aspirations of Agency 1 and the statutory requirements of Agency 2, this is why, in the second amendment to the MSA, municipal managers of the statutory administration are lawfully forbidden from sitting on the executive of a political party at the same time.

But here’s the rub. Surely ward councillors must be considered as statutory representatives as well because they are inescapably accountable — by their nomenclature in law — to the whole citizenry of each spatial ward?

In other words, because their statutory constituency is the whole ward citizenry, surely it would be a conflict of interest for them to also serve a partial political constituency at the same time?

Installing a political representative to chair a statutory ward constituency, as we do now in ward committees, is in effect therefore the prime cause of the conflict of interests between political representative government and statutory democratic governance.

A precedent that partially eliminated any conflict of interests was set for municipal managers in the second amendment to the Municipal Systems Act. It therefore seems patently obvious that this precedent should also be applied in the case of statutory ward councillors.

What all this implies is that while political parties could still nominate candidates for ward councillors, when they win an election they must swear an oath and solemn affirmation in terms of Schedule 2 of the Constitution that they will undertake and perform their statutory duties to the whole ward citizenry without favouring any one political ideology.

As Omry Makgoale so sagely concluded, “we need a parliamentary process that gives ourselves as citizens, the voters, the power to elect the best people from the existing political parties. We, the voters, can distinguish patriots from crooks, democrats from racists. Why can’t we choose the people we trust”?

It almost goes without saying that in order to establish real democratic trust in the electoral system it will be necessary to lawfully balance representivity with accountability before the next elections are held.

I agree with Omry then, that this is how the future of South Africa will be saved. DM

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