Putting the 18 th amendment into effect
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Putting the 18 th Amendment into effect. Formal implementation Transfer of functions Restructuring institutions/new institutions Ongoing work Maintaining and developing the system Changing mindsets. 1: Formal implementation. Examples R egulation of labour and mine safety

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Putting the 18 th Amendment into effect

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Putting the 18 th amendment into effect

Putting the 18th Amendment into effect


Putting the 18 th amendment into effect

  • Formal implementation

    • Transfer of functions

    • Restructuring institutions/new institutions

  • Ongoing work

    • Maintaining and developing the system

  • Changing mindsets


1 formal implementation

1: Formal implementation

  • Examples

    • Regulation of labour and mine safety

    • Curriculum, centres of excellence, education standards

    • Environment


Formal implementation tools article 267a

Formal implementation: ToolsArticle 267A

  • By 30 June 2011

  • Implementation Commission

  • Removal of difficulties


Power to remove 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


Putting the 18 th amendment into effect

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

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

Facilities

  • Offices

  • Records

  • Equipment


Politics and practicalities

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


Putting the 18 th amendment into effect

  • 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


Putting the 18 th amendment into effect

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

2: Ongoing work

Need for coordination of exclusively provincial matters

Need to deal with overlap between federal and provincial matters


Putting the 18 th amendment into effect

  • Environment – doesn’t respect boundaries

  • Duties in respect of succession to property (removed from Federal Legislative List)

  • External affairs – may overlap with provincial matters


Putting the 18 th amendment into effect

  • 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

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

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

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

Judiciary

  • Understand the need for cooperation in Federations

    • Competitive

    • Cooperative

    • Combination


Examples

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

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

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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