Implementing the 18th Amendment: Challenges and Strategies

Putting the 18thAmendment 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 doesnt 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