Local and regional government constitutions for South Africa
If we are to avoid repeating the mistakes of the past in post-apartheid South Africa, the rights of regional governments should be entrenched in the central constitution, and local rights should form part of regional or state constitutions.
This country has been dominated by a racial oligarchy for so many years that its people have to learn from scratch how a participatory democracy works. The great French political philosopher Alexis de Tocqueville observed that “Town meetings are to liberty what elementary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it.” The best way for South Africans to learn the value of democracy is by taking direct control over the issues that affect their lives.
Local and regional governments should not be defined by a room full of planners sitting around a map trying to draw up boundaries. Instead they should be allowed to emerge through a process of choice and negotiation. In the absence of rigid rules about minimum populations and minimum land areas, each community will be able to determine its own optimum size. A combination of large and small governments, some with few functions and some with many, will reflect public preferences and allow opportunities for initiative, creativity and cooperation.
Furthermore, the best way to revitalise community life is by allowing residential areas to have their own economic, cultural and social units such as schools, churches, police and fire stations, shopping districts, community centres, and service, charitable and volunteer organisations. People must be able to relate to the scale of their neighbourhoods and exercise leadership there.
Regional laws regarding local governments should enable rather than enforce. In 1972 the American state of Montana approved a new constitution which required “each local government unit or combination of units to review its structure and submit an alternative form of government to the qualified electors of the next general or special election.” Enabling legislation was passed offering the state’s 184 counties and municipalities:
- six constitutional options as well as the option to write their own charters;
- means whereby municipalities could merge, consolidate, transfer services or separate; and
- processes allowing local governments to adopt self-governing powers if so desired.
The entire process took five years and proved very successful. Subsequent legislation authorised any county or municipality to make further changes at any time it wished to do so.
Enabling rules for local government in South Africa might include:
Rules of association whereby local citizens can petition or vote to create (incorporate) their own neighbourhood government or municipality, or join up with a neighbouring community. Citizens affected by incorporation or annexation should be allowed to vote for or against. Usually incorporation requires a special majority vote (for example, a two-thirds majority). If two or more units are considering a merger, this should require a majority vote in favour in each of the areas concerned.
Boundary adjustment rules which enable citizens or officials to alter the boundaries of existing units. Boundaries should coincide with a community of interests and be an appropriate size for the goods and services involved (see Chapter Seven). If citizens are allowed to choose their own boundaries, local government will reflect changing citizen preferences, population growth or loss and developing technology. Flexible boundaries will also encourage political competition between various jurisdictions to provide the best services at the most affordable prices.
Voting rules to ensure legitimacy and accountability. Governments should be elected regularly, and citizens should also have the right to draw up petitions, launch popular initiatives, vote on fiscal matters or constitutional changes, challenge unpopular laws and recall unpopular officials (see Chapter Six).
Fiscal rules which enable local units to raise revenues and to receive intergovernmental transfers and grants.
Contracting rules whereby local governments may enter into agreements with one another or with private firms. The greater the number of units involved in providing services, the more likely it is that citizens’ demands and preferences will be met.
Rules for transferring functions which make it possible for a newly formed municipality or neighbourhood to transfer functions from existing units to itself.
Home rule charters which allow the people forming a new local government to decide on their own arrangements regarding service provision, taxes, voting and so on.
Conclusion
In countries where everyone speaks the same language and shares the same values, a considerable degree of centralisation can be tolerated, although it is seldom beneficial. But the imposition of one set of policies on people with diverse traditions and values is perhaps the most serious source of conflict in heterogeneous societies. Diversity is accommodated best where local governments enjoy considerable autonomy. For this reason South Africa’s future constitution should allocate specific functions to the central government and leave all others to regional governments, as in the USA and Switzerland. Metropolitan and rural regions should be formed through negotiation and they should be allowed to decide for themselves how much power they are willing to devolve to cities, towns, communities and neighbourhoods.