The announcement by the South
African National Cabinet that it will be invoking Section 100 (1) (b) of the Constitution
of South Africa to address the ‘apparent crisis’ in the North West Province,
particularly in the health sector, has brought the use of the section onto the
sharp edge of the analysis sword; governance speaking. This is further
complicated by the fact that Cabinet indicates the main objective of the
intervention as; ‘to restore trust and confidence between labour and government’;
‘assist the province to upgrade its systems and capabilities to a normality’; ‘ensure
compliance with the legislative and regulatory framework of government’; ‘stabilise
the labour environment’; ‘restore sustainable service delivery’; ‘ensure
security of staff’ and ‘improve financial management’.
In invoking section 100 in the
North West, the National Executive made reference to an ‘apparent crisis’ that
was either existing or developing. The ‘apparent’ nature of the crisis would have only been the
to the purview of the arguments and background provided as input to the Cabinet
meeting of 24th April 2018. Save for the media-inspired information
on the ‘apparent crisis’ and matters posited as the objective of the
intervention, there seems to have not been an answering information and or
affidavit from the provincial government, that preceded the intervention. A high
level read of accounts of the Auditor-General, one of the Constitutionally
created key institutions charged with reporting indicators of performance of
various administrative units of the state, indicates that the office of the
Premier in particular, had been on an upward trajectory performance and
compliance wise. In respect of other departments in the North West, reports
from the AG office indicate that there were noticeable improvements since the 5th
Administration took over and consequence management processes were in place
when the ‘intervention’ occurred. In fact there is a less reported case on
consequence management traceable to the ungovernability ructions, where a
member of the SMS was disciplined and ultimately dismissed, with a number of
colluders facing various charges related thereto.
The objectives of the intervention
are indicative of what constitutes the ‘apparent crisis’ from the vintage point
of ‘analyses’ that served as the primal input into Cabinet processes and thus generated
the decision. It is always expected that the National Executive of a country
like South Africa will take a decision of this magnitude on the basis of a
thorough process that valorises the audi
alteram partem principle. The Constitution entrenches section 100 as one of
the instruments to facilitate ‘national supervision of intervention in
provincial administration’ in the circumstance ‘a province cannot or does not
fulfil an executive obligation in terms of the Constitution or legislation’. It
is thus premised on the performance of the provincial administration and not
the ‘politics’ instructing to the system.
A closer look at the constitutional
provision reveals a necessity for process before the invoking of section 100.
The invoking of section 100 is in fact an intergovernmental relations
intervention mechanism provided for in the Constitution. It flows from co-operative
governance principles which are the basis of South Africa’s intergovernmental
relations philosophy
and governance, and is based on a reciprocal obligation of spheres
of government to trust, support and assist one another in co-coordinating
service delivery. This includes a legal,
political and moral obligation to inform and consult one another as well as
co-operating with and co-ordinating efforts on matters of common concern and
joint projects, thus patterning intergovernmental collaboration and
co-operation to ensure the success of the national development project.
‘Executive obligations’ mentioned
in the constitution, unless otherwise explained in another legislation, are
understood to be specified in section 125 of the constitution dealing with the
Executive Authority of provinces. Pyramiding this authority is it being vested
in the Premier, and exercising it together with members of the Executive
Council, and subject to provisions of section 100. The discretion of section
100 implementation looms therefore large in the absence of further
circumscription by section 100 (3) of the constitution. It can thus be
concluded that executive obligations are those in legislations promulgated in
terms of the constitution, and anything outside that is either exogenous to
them or discretionary to the extent the nature of politics dictate or allow.
The provisions dealing with conditions that necessitate assuming
responsibility for the ‘obligation’ where ‘failure is observed, reported and/or
perceived’ are specified as being ‘invokable’ to the extent necessary to inter alia maintain essential national standards for the
rendering of a service; maintain economic unity and national security; and to prevent
a province from taking action that is prejudicial to the interests of the
country, or another province. In respect of the North West Province, this
exigency existed and it was acute in the department of health as a result of
then and ongoing strike by NEHAWU and the absence of leadership to deal with
the strike itself, whence Cabinet had the objective of ‘restoring trust and
confidence between labour and government’.
The exigency that propelled the need to invoke section 100 in the North
West Department of health was however not as a result of the fact that the
Provincial Department of Health ‘cannot or does not fulfil an executive
obligation in terms of the Constitution or legislation’. Evidence is that the
NWDoH faced industrial action that rendered it dysfunctional and could
therefore not fulfil its service delivery obligations in Ngaka Modiri Molema
District based Mafikeng jurisdiction, where industrial action was acute and
integrated with grievances emanating from the body politic internal to the
ruling party, the ANC. The intensity of the strike at NWDoH rendered the
provincial department’s centre ungovernable and obligations related to the day
to day management of the department could not be fulfilled; even at remote
sites because the ‘strike command centre’ took full control of the NWDoH head
office and had the capacity to effect changes and reversals to management
decisions including interfering with the suppliers payment systems of BAS.
Notwithstanding, section 100 actually directs the national executive to
amongst others ‘issue a directive to the provincial executive it is intervening
at, describing ‘the extent of the failure’ to fulfil its obligations and
stating any steps required to meet its obligations. The description, and as the
constitution provides, assumes the existence of a process to investigate before
actual intervention occurs, of course without vitiating the possibility of
operating with a context of an emergency; manufactured, real or perceived. The
constitution does not provide for a process to deal with exigencies emanating
for circumstances that are ‘political’ and/or exogenous to those that relate to
‘failure to fulfil an executive obligation’; save to implore of the national
executive through Parliament, to establish such a process through legislation
envisaged in section 100 (3). In the absence of such a provision, discretion
becomes the final arbiter. Except for the court ruling induced
Intergovernmental Relations Framework Act, Act 13 of 2005 ,which in itself is
silent on a section 100 process, there is no legislation that regulates
supervision and intervention in sub-national governments in the event of
conditions similar to those that obtained in the North West when Cabinet
intervened; this leaves the intervention process in a prerogative realm of
state governance and management.
Without vitiating the absence of
legislation envisaged in section 100 (3), the Corporative governance principles
provide a conceptual sieve within which executive overreach in the invoking of
this section can be regulated or circumscribed. The focus of section 100 on
failure to fulfil an executive obligation posits the invoking of the section
within the normative realm that most constitutions in democracies seek to
aspire to. The wisdom of constitution drafters, which included the person of
President Cyril Ramaphosa, in establishing a normative framework as reflected
in chapter 3 of the constitution whilst making provision for the section 100
interventions, would have been focused or targeted the repugnancy threat that
is inherent in democracies that have sub-national jurisdictions with ‘executive
authority powers’. The application of section 100 can therefore not be
exercised within the prerogative realm often reserved for the ‘political’ in
the administration of the state.
It is this article’s submission
that the absence of an articulative intergovernmental relations policy
framework envisaged in 100 (3) as well as sections 41(2), 139(8) and 155(6)(a)
of the Constitution, makes interventions in sub-national political and
administrative jurisdictions a prerogative endeavour that has questionable
normative justifications. The above provisions, read with Chapter 13 of the
Constitution providing for general financial matters, procure for the enactment
of legislation or a regulatory framework; to establish structures and
institutions to promote and facilitate intergovernmental relations; to provide
for appropriate mechanisms and procedures to facilitate the settlement of
intergovernmental disputes; to regulate the process that national government
should follow in determining the extent to which a provincial government could
not fulfil or is not fulfilling its obligation in terms of the constitution or
national legislation; to regulate and provide for mechanisms and processes,
either than those provided for in the constitution, that facilitate a normative
and/or standardised for provincial intervention in local government; provide
for the monitoring and support of local government in the province, a condition
precedent activity between national and provincial. These provisions, and left
unattended, can only increase the discretionary reach and scope of executive
power to levels where the vagueness of policy may spill over into a tacit
authorisation of administrative bodies to intervene in the socio-economic as
well as political life of the nation; a critical indicator of the encroachment
of dictatorship.
The absence therefore, of section 100(3) legislation to regulate the
process established by section 100 creates a lacuna in the intervention procedure.
In its current format the intervention process makes the entire section 100
vulnerable to a ‘settling of scores’ circumstance where national government may
descend on a provincial government for non-administrative reasons or in the
parlance of the Constitution, for reasons of not related to non-fulfilment of
an ‘executive’ obligation. In his seminal work on the legacies of law, Meierhrnrich submits that laws should carry structures
and systems of society through time; laws should insert the common interest of
society into the behaviour of society-members; laws should establish the
futures for society in accordance to what norms that society[1]. In
a society that apexes its Constitution as the supreme law of the land and
espouses the rule of law as the fundamental guide to its jurisprudence, any
abolition of the inviolability of the law becomes a recipe for the
establishment of a prerogative state and thus puts into question the very
significance of the law.
The rule of law positions laws of the state as legal innovations that
enable democracies to coordinate activities within society efficiently, they
are a form of power. In fact, established orthodoxies in society are best
abstracted in the legal order established, whence the ‘establishment’ in
society is anchored on how it manipulates its ways through what the law
provides. Politics being the outcome of interest management, the negotiation of
interests, and the aggregation of information instructing the diversity of such
interests within a context that creates in a society a habit of legality,
requires from those charged with the dispensing of State Power a normative
sensitivity when invoking sub-national intervention provisions of the
constitution. The manner in which such invoking occurs creates in society
continuity patterns that may settle as a socialisation of the ‘political
community’ and thus mutating into a ‘school of thought’ deserving of
acquisition by future generations.
Once settled, the idea of invoking the intervention in sub-national
government intervention clause without a normatively created process that
propels the habit of legality, will entrench a government that exercises
unlimited arbitrariness and viciousness (mostly political), and unrestrained by
any legal guarantees. The evaporation of established legal norms such as the
audi alteram partem rule becomes the first indicators of the development of the
power of doing public good without rules, which is the very first step towards
despotical power; the sovereignty of the individual in law becomes thus the
greatest casualty as focus is on the public good at whatever cost. The
dictatorial authority that accompanies most sub-national interventions in
democracies that don’t have a regulatory mechanism of the process, often occur
when there is an overinflated perception of benevolence in the incumbent
leadership, or a growing personality cult.
The experience of past section 100 interventions such as that in the
Limpopo Province of South Africa, with striking coincidences of the service
delivery departments that spearheaded the intervention, creates a further sieve
of the dangers in the currency of perceived benevolence or a misguided
insatiable appetite for power by national ministers skilled at manipulating
political power vacuums. The then narrative behind the intervention was the
‘apparent bankruptcy’ of the provincial administration. The result was the
usurping of executive powers in selected departments with the outcome being the
removal of the Premier, and thus facilitating the ultimate dismissal of the ANC
Youth League President, who was then the political
prize of the intervention. The contestations for the control of executive
discretion that accompanied the executive authority of the premier muddied the
‘nobility’ of the intents in intervening. In a normative state where the idea
of the law as a constraint is the fulcrum upon which all state decisions are
based, the section 100 (3) legislation would have by now been promulgated and
an intervention process would have been defined already.
The idea of intervention remains one of the hallmarks of the South
African intergovernmental relations system. It provides the necessary checks
and balances for a democracy that procures for its political mandate in
sub-national jurisdictions thus creating a potential for an ideological discord
between the centre and the periphery of government. In coordinating this
efficiency, the system has the potential of creating inefficiencies that may
manifest themselves in in-party factional tensions being a greater motivation
for intervention, when there is no regulatory framework governing the process.
The preponderance of regime change tendencies may be exploited into the creation
chaotic environments that create a perception of ‘failure to fulfil an
executive obligation’ thus triggering a domino that procures for section 100
intervention outside a section 100 (3) and others legislation. The jury remains
out on the correctness of the Limpopo and North West interventions respectively.
It is the extent to which that intervention was normative or prerogative that
will pronounce on the despotical or otherwise of the ruling centre.
Whilst section 100 is a necessary clause in the architecture of the
South African intergovernmental relations system, it remains a prerogative
state building provision unless it is somehow regulated by further legislation.
The context at which it was drafted, like many legislations in South Africa,
assumes the continued existence of the Mandela benevolence and does not anticipate
a possible despotical environment that may be created by successors of Mandela.
The shenanigans around the Mayor of Cape Town further indicate that the risk is
not only in-ANC based. The repugnancy provisions that are designed to keep
national economic unity and national interest remain the pillars with which the
section 100 provisions would always be justified with. However, the political
reasons often perceived to be at play when the section is invoked, makes the nobility
of its intents to be profoundly compromised. The question is therefore, is the
section promoting a prerogative way of running a state or a normative way of
dealing with sub-national challenges. The question is, can this section be
applied in a jurisdiction governed by an opposition party; in there lies its
normativity or otherwise. It is therefore important for government to manage
how it communicates the issue of reviewing sub-national governance,
particularly interventions. Centralisation of political power has joined the
absence of the rule of law as fundamental considerations for foreign direct
investment in a country. With the current global economic meltdown investors
are increasingly paying attention to the political management of economies, with
a particular focus on sub-national ‘governments’ as primary units of democratic
expression. The global decentralist movement has continuously been gaining
premium because of the failure of centrally managed political economic
decisions by either governments or recession responsible private sector
multi-national firms.
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