13th – 19th July 2009

My fellow citizens of KwaZulu Natal

 
The most recent attempt to amend our constitution in order to “further regulate the executive authority of the municipalities” is being proposed by the ANC on a benign pretext of expediting service delivery at local government level. If taken to its logical conclusion, the amendment would, however, lead to the abolition of the nine provinces and a further unwelcome centralisation of power in South Africa. As a party of federalism, the IFP opposes the amendment with dedication and vigour. 

It is important to note that the proposed amendment seeks to vest in the national government new powers of the intervention at local government level, thus centralizing power and adding new power to the national government which is contrary to the spirit of the constitution and specifically contrary to section 151(4) of the constitution, that states that “the national and provincial government may not compromise or impede a municipality’s ability or right to exercise its power or perform its functions”. The proposed amendment of section 156 has exactly this as its objective. 

It is clear from our constitution that:

•   local government is a “distinctive” sphere of government, alongside national and provincial government;

•   local government is autonomous and may not be compromised as section 151(4) states;

•   local government is not a competence of provincial government nor national government. This does not mean provincial has no say; province has a supervisory role of monitoring and the powers of intervention – see section 139 of the constitution;

•   a developed focus was given to local government. Not only service delivery but the broader social and economic development of the community has become its objects – see section 152 of the constitution;

•   local government was extended to the entire country- see section 151 of the constitution; and

•   local government is a distinctive sphere of inter governmental relations and co-operative government established by Chapter 3 of the constitution. 

The powers of the local government must be used to provide services and promote development. The constitutional objects of local government include the provision of basic services to communities in a sustainable manner, the promotion of social and economic development, and a safe and healthy environment. A municipal council must thus “strive within its capacity to achieve” their objects are expansively defined in the systems act. 

In terms of the constitution the scope of local government’s power and functions is delineated by the functional areas listed in schedules 4B and 5B. All legislation in this regard has to clear the constitutional hurdle; legislation that tends to over-regulate local government may fall foul of the constitution if it compromises or impedes local self-governance. 

In any constitutional challenge, a purposive interpretation of the constitution should strive to maximise local autonomy in support of local democracy and development. Local government’s development mandate should inform such an interpretation.

It is only when local government is afforded sufficient powers that the notion of development driven at local level can take root. Local government must be allowed to govern, make mistakes, learn from its mistakes and most importantly establish a sound and interactive relationship with its local community. 

There are enough mechanisms in the constitution and systems act to deal properly with the day-to-day challenges of local governance. National and provincial governments must start to take on the responsibility given to them by the constitution. This is not a matter of telling other spheres of government what to do but to support, assist and supervise those spheres of government. Admitting that certain aspects of service delivery have failed is actually admitting that the national and provincial governments failed in this regard. This failure cannot be rectified by an amendment to the constitution but can only be rectified by proper support, assistance and supervision to the local sphere of government. 

It is shocking that the proposed amendment to the constitution purports to regulate the Electricity Distribution Industry, but the proposed amendment does not have a limited focus in this regard but has an extremely wide application. All matters listed in part B of schedule 4 and part B of schedule 5 of the constitution will be affected. This will give the national government wide ranging new powers of intervention into local government. which clearly will be unconstitutional and has only one purpose and that is to centralize power. Such centralisation will only weaken democracy and compound the problems. Only political will and able people acting within the ambit of the constitution will solve the EDI implementation. 

The amendment of section 156 of the constitution will be the first step to make provinces obsolete and pave the way to argue that there is no need for governance on a provincial level and to request the scrapping of the provinces. The proposed constitutional amendment will thus have extremely far reaching implications which will undermine democracy and remove power from the people and centralise it in the hands of the central government. 

The IFP had fought long and hard for the establishment of the nine provinces and the modest decentralisation of power that we enjoy through them today. We will not stand by while these democratic achievements, designed for posterity rather than expediency, are being assaulted by a power-hungry ruling party.

Sincerely,

Dr Bonginkosi Buthelezi MPL

Leader of the Official Opposition

Contact: Dr Bonginkosi Buthelezi, 082 516 0156