Putting the 18th Amendment into
effect
1. Formal implementation
– Transfer of functions
– Restructuring institutions/new institutions
2. Ongoing work
– Maintaining and developing the system
3. Changing mindsets
1: Formal implementation
• Examples
– Regulation of labour and mine safety
– Curriculum, centres of excellence, education
standards
– Environment
Formal implementation: Tools
Article 267A
• By 30 June 2011
• Implementation Commission
• Removal of difficulties
Power to remove difficulties
• Concern that something in the Amendment
doesn’t work – or can’t be implemented
immediately as intended
• Joint sitting of Parliament –
– By resolution
– Adapt (refine) provisions
– Limited period
• Only available for a year
Laws
• Federal laws on concurrent matters that give functions
to Federal Government:
– Laws remain in force
– Technically Federal Government no longer has executive
power over them
• Amendments needed to shift responsibilities to
Provinces
Options include:
• “Agency” agreements between individual provinces
and Fed Govt (tax collection?)
• Use of Arts 144 and 147
– Provincial assembly gives Parliament power to legislate
and administer
Civil Servants
• On contracts
• With skills
• Based in provinces
• Transfer of staff to provincial governments
• Implication
– Slow process for province to redesign civil service and
make it its own
– Discretionary budget of provinces likely to be small
Facilities
• Offices
• Records
• Equipment
Politics and practicalities
South Africa’s experience
• National commitment that new Constitution
should improve things
• Provinces did not have institutions or skills
• Wide differences in capacity between
provinces
• Constitution delayed establishment of new
municipalities
• Provision for asymmetrical devolution to
provinces –
– Provinces to demonstrate capacity
– National government given obligation to support
them and help develop capacity
•
•
•
•
BUT
Political pressure for immediate transfer of
powers
COST ?
Deterioration of existing infrastructure
National government lost confidence in provincial
system
Particular problem with over hasty fiscal
equalization
2: Ongoing work
Need for coordination of exclusively provincial
matters
Need to deal with overlap between federal and
provincial matters
• Environment – doesn’t respect boundaries
• Duties in respect of succession to property
(removed from Federal Legislative List)
• External affairs – may overlap with provincial
matters
• Interprovincial matters and coordination
Federal Legislative List Part II (13)
• Directions to Provinces – Art 149
– Provinces shall not impede Federal Government’s
exercise of executive authority
– Fed Govt may give directions
Intergovernmental institutions
• Council of Common Interests
• Federal ministry OR institution outside Federal
government
• Meetings of ministers concerned with specific
issues?
– Provincial environment ministers?
– Technical meetings?
• Meetings of Chief Ministers?
3: Mindset
Federal
• Dismantle various federal institutions
• Learn art of joint decision making
– NFC
– Council of Common Interests
• Support provincial governments
– Don’t over-extend Interprovincial matters power
– Don’t overuse directions under Art 149
Provinces
Institutions and their operation
Increased budget and deletion of concurrent list
means –
• Increased functions and responsibilities
• Shift to planning development
• Realism about what can be done
Judiciary
• Understand the need for cooperation in
Federations
– Competitive
– Cooperative
– Combination
Examples
• Interpretation of ambit of Federal list
• Art 157 – electricity - consultation of concerned
province
• Federal legislative list Part II: Interprovincial
matters and cooperation
– Narrow (Canadian Peace Order and Good Governance
provision)
– Broader (South African concern for national
standards)
– Federal dominance
What should guide courts?
• Commitment to federal system – protect
devolution of power
• Commitment to certain national values – draw
from Preamble, Bill of Rights, Principles of
Policy
What can be done to change mindset?
• Vision of what is possible
– Offered new ways of doing things
• Citizen expectations
• Teaching