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Putting the 18 th Amendment into effect

Putting the 18 th Amendment into effect. Dr Christina Murray University of Cape Town. Formal implementation Transfer of functions Restructuring institutions/new institutions Ongoing work Maintaining and developing the system Changing mindsets. 1: Formal implementation. Examples

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Putting the 18 th Amendment into effect

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  1. Putting the 18th Amendment into effect Dr Christina Murray University of Cape Town

  2. Formal implementation • Transfer of functions • Restructuring institutions/new institutions • Ongoing work • Maintaining and developing the system • Changing mindsets

  3. 1: Formal implementation • Examples • Regulation of labour and mine safety • Curriculum, centres of excellence, education standards • Environment

  4. Formal implementation: ToolsArticle 267A • By 30 June 2011 • Implementation Commission • Removal of difficulties

  5. 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

  6. 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

  7. 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

  8. Facilities • Offices • Records • Equipment

  9. 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

  10. 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

  11. 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

  12. 2: Ongoing work Need for coordination of exclusively provincial matters Need to deal with overlap between federal and provincial matters

  13. Environment – doesn’t respect boundaries • Duties in respect of succession to property (removed from Federal Legislative List) • External affairs – may overlap with provincial matters

  14. 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

  15. 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?

  16. 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

  17. 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

  18. Judiciary • Understand the need for cooperation in Federations • Competitive • Cooperative • Combination

  19. 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

  20. 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

  21. What can be done to change mindset? • Vision of what is possible • Offered new ways of doing things • Citizen expectations • Teaching

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