Why South Africa Needs Federalism

South Africa’s political problems are usually discussed as a series of crises relating to corruption, incompetence, bad policy and the decline of state institutions. All of these are real problems, and none of them should be understated. Yet they point to a deeper constitutional difficulty that is discussed far less often: a highly centralised national government is expected to make far too many decisions on behalf of a country that is exceptionally large, diverse and politically divided.

The peoples of South Africa differ from one another in language, culture, history, religion, economic circumstances and political expectations. This is not unusual in itself; many successful countries contain significant differences. The question is not how to get rid of diversity, but how to manage it through a political system that is both viable and sustainable. The problem is that South Africa’s constitutional system requires all these communities to compete for control of the same central institutions, because an extraordinary range of decisions is made nationally and then applied throughout the country.

As a result, national politics in South Africa has become a permanent struggle over who will control the centre. Whoever wins is able to use the machinery of the state to advance their preferred policies, while those that repeatedly find themselves outside of the centre of power exercise very little real authority over many of the matters that most directly shape their daily lives. This is not to say that they don’t have rights, but that their rights address micropolitical factors (such as having the right to speak their mind within certain limits), while they struggle as a result of macropolitical factors (the consequences of a system presiding over a network of policies that has become detached from reality).

The obvious outcome is that when the national government makes a disastrous decision, the consequences are felt throughout every community in the country. A mistaken policy does not remain confined to one province or municipality. It is imposed nationally, often despite major differences in local conditions and despite the fact that certain communities or regions may have the institutional ability to do things differently and more successfully.

South Africa’s problem, then, is not merely that the national government governs badly. It is also that it is expected to govern too much. Put differently, when we consider solutions, the focus should not be on how the government needs to do more, but rather on how the government needs to do less, allowing the space for local communities and institutions to do more.

Lex Libertas is currently working on a more substantial paper on federalism, the possibility of a more decentralised constitutional order for South Africa and what ought to be done to achieve this. The purpose of that paper will not be to offer federalism as a magical solution to every political problem, because no constitutional model can remove the need for competent leadership, responsible citizens and functioning institutions. The argument is rather that South Africa would be more stable, more governable and more free if significantly more authority were exercised by provinces, municipalities and communities themselves.

What federalism actually means

Federalism is often misunderstood, especially in South Africa.

Some think of it as a Western concept, even though there are many federal states in Africa (including Nigeria and Ethiopia), Asia (including India and the United Arab Emirates) and South America (including Argentina and Brazil).

Furthermore, some associate the term with secession or the destruction of the state. That is not what federalism means.

A federal country remains one country. It has a national government and a common constitutional order. The national government continues to perform functions that are genuinely national in character, such as foreign affairs, national defence, the maintenance of the broader constitutional system and, depending on the particular model, certain aspects of infrastructure and economic coordination.

The important difference is that the national government is not regarded as the source of all legitimate public authority. Power is divided constitutionally between different levels of government, and the powers of provinces, regions or municipalities are not merely granted at the discretion of the centre.

This is what distinguishes federalism from ordinary administrative decentralisation. A central government may delegate certain tasks to provincial or local authorities while still retaining ultimate control over those tasks. What has been delegated can usually also be withdrawn. In a meaningful federation, however, provincial and local authority is protected by the constitutional order itself.

Federalism therefore attempts to combine two ideas that are too often presented as though they are mutually exclusive: unity and self-government. It is possible for communities to cooperate within one country while retaining meaningful authority over those matters that do not need to be decided nationally.

It is also possible for different parts of the same country to follow different policies without threatening the existence of the country as a whole. In fact, this is precisely what happens in many successful federal systems. Different regions govern themselves differently because their circumstances, priorities and political preferences differ.

Building political order from below

One of the earliest systematic thinkers on federalism was Johannes Althusius, whose major political work, Politica, was first published in 1603. Althusius is especially relevant because he did not begin his political theory with the state. He began with the communities in which people actually live.

Human beings do not ordinarily encounter political life as isolated individuals standing directly before a national government. They live in families, churches, schools, towns, professional associations, cultural institutions and other forms of community. These institutions have purposes of their own, and many of them existed long before the modern centralised state began to claim authority over nearly every sphere of public life.

Althusius therefore understood political order as something that should be built from the bottom upwards. Families and associations form local communities; local communities form larger political bodies; and these larger bodies cooperate within a wider commonwealth.

The higher level of government has an important role, but it should exercise only those powers that cannot properly or effectively be exercised lower down. This is closely related to the principle of subsidiarity, according to which decisions should be made at the lowest level capable of dealing with them.

The point is not that national government is unnecessary. It is that national government should perform national functions, rather than assuming that every important problem must eventually be solved in Pretoria.

This has obvious relevance to South Africa. A country containing communities with different histories, languages, institutions and political preferences does not become more united simply because one national policy is imposed upon all of them. Instead, the insistence on uniformity produces greater conflict because every disagreement becomes a struggle over who will control the national government.

Federalism offers another way of thinking about unity. A common country does not have to be governed identically in every place.

Freedom must be exercised through institutions

Alexis de Tocqueville, writing more than two centuries after Althusius, approached the same broad problem from a more practical angle. Tocqueville was a French political thinker who travelled to the United States in the 1830s and later published his observations in Democracy in America.

What struck him was the contrast between France and the United States. France had experienced revolution and the destruction of many older institutions, but political and administrative power had nevertheless become increasingly concentrated at the centre. In America, by contrast, citizens participated in a wide variety of local institutions, municipal governments, churches, associations and state structures.

Tocqueville’s insight was that freedom cannot be sustained by constitutional declarations and national elections alone. People need institutions through which they can actually practise self-government.

Local government was important to him because citizens learned to govern by taking responsibility for matters close to them. They did not experience politics only as spectators who occasionally voted for distant representatives. They were involved in decisions about their towns, schools, roads, public funds and communal concerns. In doing so, they developed judgement, responsibility and an understanding of the practical consequences of political choices.

Voluntary institutions were equally important. Churches, schools, civic associations, professional bodies, cultural organisations and publications enabled people to combine their efforts and accomplish things that they could never have accomplished alone.

This is not an argument against individual freedom. Quite the opposite. Institutions make individual freedom more effective. A person may enjoy extensive rights in theory, but still possess very little practical influence if he or she has no institutions through which to act. By joining with others, people can establish schools, preserve languages, defend interests, provide services, publish ideas and hold government accountable.

Institutions are therefore not merely barriers against state power. They are the means through which freedom becomes visible and practical.

The problem of national majoritarianism

Democracy implies majority rule, but it does not follow that a national majority should be able to decide every question for everyone.

Tocqueville warned about the tyranny of the majority because he understood that democratic power could also become oppressive. A majority may use national institutions to impose its political preferences upon minorities, weaken independent institutions or treat every form of difference as something that must be brought into line with a single national programme.

This danger becomes far more serious when power is heavily centralised. When the national government controls education policy, policing priorities, economic regulation, public resources, cultural policy and a wide range of administrative functions, losing a national election may mean losing meaningful influence over nearly every important area of government.

Federalism reduces this problem by dividing political authority.

A community that is a minority nationally may be a majority in a province, municipality or particular institution. It may therefore govern certain matters without first having to win control of the entire country. Not every disagreement must be settled by the same national electorate, and not every difference must end with one side imposing its will upon everyone else.

This does not weaken democracy. It makes democracy more substantial by creating more places in which citizens can govern themselves.

A democracy should not be judged only by whether citizens may cast a vote in a national election every five years. It should also be judged by whether they possess real influence over the institutions that affect their daily lives.

What a federal South Africa might look like

South Africa already has national, provincial and local spheres of government, but that does not necessarily make it meaningfully federal. Provinces and municipalities remain heavily dependent on the national government, both financially and administratively, and they often function mainly as implementers of policies determined elsewhere.

A more federal order would require a clearer and more secure division of powers.

The national government would continue to perform genuinely national functions, but provinces and municipalities could exercise much greater authority over matters such as education, policing, infrastructure, housing, healthcare administration, economic development, language and cultural affairs.

The precise division would have to be debated carefully. The purpose is not to take every function away from the national government, but to ask honestly whether a particular function truly needs to be controlled nationally.

Authority would also have to be accompanied by responsibility. A province or municipality cannot be meaningfully autonomous if it has no reliable revenue of its own and remains dependent on national departments for every significant decision. At the same time, governments that exercise greater power should also be held accountable for the results of their choices.

A South African federal model should probably not be limited to the existing provincial boundaries. Some communities are geographically concentrated and could exercise greater self-government through provinces, regions or municipalities. Others are spread across the country and would require forms of community-based autonomy.

Cultural and linguistic communities, for example, could exercise greater responsibility through their own schools, educational networks, welfare organisations, cultural institutions and other bodies. This would allow communities to govern appropriate parts of their common life without every form of self-government having to depend on territorial concentration.

The arrangement would not necessarily have to be identical in every part of the country. Different provinces and communities possess different levels of institutional capacity and may desire different degrees of autonomy. A more flexible and asymmetrical model could allow some regions or communities to assume greater responsibility without forcing every part of South Africa into exactly the same structure.

Why federalism would make South Africa more governable

Federalism is not quite like a switch that is either on or off. It should be thought of as a sliding scale towards decentralisation and self-governance. A constitutional arrangement can be more or less federal, depending on the extent to which communities have a say over their own affairs and the extent to which institutions can function independently. This is why Lex Libertas is broadly of the view that ‘more federalism’ is better than ‘less federalism’.

However, it should be understood that federalism in itself does not guarantee good government. Provinces can also become corrupt, municipalities can also fail and communities can also make foolish decisions. The case for federalism does not depend on the belief that local government is automatically virtuous.

Its advantage is firstly that it disperses both power and risk, and secondly that it ensures that those who wield power are closer to the people, making corruption more difficult while ensuring higher levels of accountability.

When power is centralised, one serious policy failure can harm the entire country. In a federal system, different regions can try different approaches. Successful policies can be copied, while the consequences of failure may remain more limited.

Federalism also brings decision-making closer to those who are affected by it. Citizens generally have a better understanding of local conditions than distant administrators do, and they are more capable of holding accessible local officials accountable than national departments that operate far away.

Perhaps most importantly, federalism lowers the stakes of national politics. Communities would no longer have to win control of the national government before they could exercise meaningful authority over their own affairs. Political disagreement would remain, but not every disagreement would become a struggle for control of the entire state.

The variety of peoples and communities in South Africa do not have to agree on every question in order to share a country. They do not need one language, one culture, one political tradition or one view of the good society. What they need is a constitutional order that allows them to cooperate where cooperation is necessary while retaining meaningful freedom where uniformity is not.

Federalism offers precisely that possibility: one country, but not one political voice; a common constitutional order, but also real provincial, local and community self-government.

That is why South Africa needs federalism.

Dr Ernst Roets

Dr Roets is Executive Director of Lex Libertas