Defining Intergovernmental Relations.: (PMG Ed. Note: Footnotes Have Not Been Included)
Defining Intergovernmental Relations.: (PMG Ed. Note: Footnotes Have Not Been Included)
Defining Intergovernmental Relations.: (PMG Ed. Note: Footnotes Have Not Been Included)
EXECUTIVE SUMMARY
Backgound
The Audit:
The Audit Team’s primary role was to make recommendations for overcoming
the many serious challenges impeding the development of a sound culture of
intergovernmental relations and to inquire into those practices that inhibit the
development of an effective and unifying system. Some of the constraints
were caused by the hasty establishment of intergovernmental relations
instruments to attain the rudimentary objectives of policy and planning in the
wake of the transition from apartheid.
to assess the strengths and weaknesses of the system and to provide some
insights into the desirability of regulation;
to examine the reasons for disputes between and within the spheres.
The Audit has addressed the fundamentals of the system. The constitution
establishes norms of co-operative government in which the spheres [as
opposed to subordinate tiers] are distinctive, interdependent and inter-related.
Distinctiveness is defined as the degree of legislative and executive power
each sphere has to make laws and to execute them. Their interdependence is
seen to rest on the degree of dependency they have on one another for the
proper fulfilment of their constitutional functions -- and their inter-
relatedness is defined as the duty of each to co-operate with the other in
mutual trust and good faith.. There are, however, inherent tensions in the
power relations which the Audit has not overlooked.
Theoretically, the concept provides for a structure in which all three spheres
co-ordinate their actions in such a way as not to infringe on the integrity of any
of the other spheres. In practice the relationship is far more sensitive. For
example, at one level there is the duty of the national and provincial spheres
to empower, and at another level, to intervene, as shown in the section on the
supervision of Local Government and the complexities of Intergovernmental
Fiscal Relations. Co-operation is thus central to the system . The instruments
of IGR facilitate this and reflect the concept of co-operative government
whose principles underline the predominance of the national interest and
require from each sphere that it respect the constitutional status, powers and
functions of the other spheres.
the informal national-provincial sectoral fora [in the financial and educational
sectors respectively], such as the MINMECs
the statutory MINMECS, fora formally derived from legislation, e.g. the
Budget Council and HEDCOM
the administrative/ technical forum, FOSAD [the Forum for South African
Directors’ General]
those at the legislative level, namely the NCOP and its interaction with the
National Assembly and the provincial legislatures.
Where formerly the IGF was seen as the instrument at the apex of the
intergovernmental relations system, it was, in the view of the Audit Team, an
early instrument of IGR whose structure and functions were mutually
incompatible. The Audit examined it closely. Although the restructuring of the
presidency has provided the strategic architecture to integrate development
planning through its intersectotal cluster committees and cabinet offices, there
is still considerable need to develop adequate linkages between these and the
IGR instruments for the greater coherence of the system. Similarly the
creation in June 1999 of the Department of Provincial and Local Government
has enabled the national government to improve its monitoring and oversight
capacity and, through the department, provide greater strategic direction for
intergovernmental co-operation. As indicated in the Audit, this arrangement
was more sustainable than replacing the representation afforded by the IGF
with any other forum at the centre of the system. The PCC, for
instance,among others, technically assisted by the six inter sectoral
committees in the Cabinet Office would therefore jointly have the responsibility
of advancing the culture of co-operative governance.
The sectoral structures such as the MINMECs – a layer between the national
and provincial governments -- were seen to be at the "coalface" of IGR. The
recommendations [referred to below] to enact enabling legislation for their
regulation is to provide a framework for their activities without imposing an
inflexible regime upon them. Assymetry in the design of regulation was
possible so long as it was not inconsistent with the general principles
underlying the proposed legislation.
The Audit Team noted the failure at the provincial level to develop the
necessary co-operative government framework, although an encouraging sign
of progress was the Memorandum of Understanding between the Eastern
Cape Provincial Legislature and the Eastern Cape Local Government
Association which ,if acted upon, would regulate their interaction with
Organised Local Government and, in so doing, encourage emulation by other
provinces for improved co-operation with municipalities and metros.
A number of general conclusions flowed from the study, notably [in respect of
the intervention in Warrenton] that with a proper monitoring system and use of
the right measures of support, the intervention could have been prevented.
The case of Tweeling, in the Free State was an example of political and
administrative mismanagement on the part of the TLC. Among the lessons
learned from the case study was that in this instance the intervention also
could have been prevented, if the provincial department had understood its
supporting role better and adopted the problem-solving role played by the
NCOP after the intervention. Recommendations for the national supervision of
provinces and conclusions drawn from the case studies extend the scope of
IGR.
The most persistent critique of the NCOP is, however, that executive IGR
processes have effectively eclipsed its function, that is to say, that when
legislation comes before the NCOP, provincial interests have already been
articulated by the MEC’s in the MINMEC or through other IGR processes.
Respondents felt that little value was added to the debate and the
NCOP appeared to them as simply a "rubber stamp" of the National
Assembly.
In its oversight function the NCOP had not carried out its role as competently
as it is required to do. The internal organisation of the Select Committees was
found to be seriously wanting in regard to their management and the issues to
be probed.. However the NCOP’s current interventionist review approach was
seen more positively, although it was likely to impact detrimentally on its
limited resources.
The Audit presents a number of policy options – the way forward - in which
NCOP activities would focus on IGR.
Intergovernmental Fiscal relations
The Audit Report maps out the constitutional responsibilities of the spheres in
their fiscal relations and the inherent tensions in the system – reflecting the
conceptual inconsistencies in the power relations between the spheres
[referred to earlier in the Audit]. In elaborating the financial framework
provided by the constitution for the provinces, this section considers the
question of revenue raising – primarily reserved for national government but
balanced by the provincial right to its equitable share .A critical review of the
provincial intergovernmental fiscal institutions is provided, dealing with their
roles and functions, alignment, and sequencing and inconsistencies in the
intergovernmentaL budget process. A review is made of the part played by the
Medium Term Expenditure Framework [MTEF]; the Budget Council, Finance
and Fiscal Commission , the Departments of Finance and State Expenditure
and the Department of Provincial and Local Government. Policy options for
improving provincial fiscal relations call for a re-assessment of the roles and
responsibilities of provincial and national goverbnment with regard to
concurrent functions to bring consistency into the process and set norms,
standards and policy objectives. A reassessment of the present revenue
assignment is recommended, including increased taxation powers at
provincial level.. Monitoring, co-ordination and alignment are seen as
important in accelerating budget reform and improving co-ordination. An
innovative aspect of this section of the Audit is the discussion on Key
indicators -- both Outcome and Processed based -- for measuring the health
of IGR.
The final section of the Audit refers to the avoidance of legal proceedings
against one another, by the spheres. This is a duty imposed by the
Constitution. Whilst the latter foresees the likelihood of a breakdown between
and within spheres, it imposes a duty on organs of state, in the event of a
dispute, to exhaust all other remedies before approaching a court. An act of
Parliament is required under S 41 (2)(b) of the Constitution to provide for such
alternative[non judicial] mechanisms. In the absence of such an Act, disputes
have to be settled politically and/or by means of intergovernmental relations.
The Audit addresses these and recommends that legislation be delayed. It
sees no compelling urgency to enact this legislation. Moreover, delay might
allow best practices to emerge which can later be captured in effective
legislation.. The duty to exhaust all procedures before resorting to judicial
remedies will obviously continue to apply. Sectorally-based legislation is
however encouraged for settling disputes within a sector [vide the National
Environmental Management Act].. Such legislation is essentially issue-
sensitive and can give content to a normative framework in terms of which
disputes can be settled. The recommendations that follow encapsulate this
approach.
RECOMMENDATIONS
1. Introduction:
The following are the main recommendations of the Intergovernmental
Relations Audit. The chapters referred to appear in the same order in the Final
Report.
During the course of the audit, a process of review of the IGF was under way. As an
inclusive body, the IGF was initially seen to be important for consultation between
provincial and national government. Potentially it was well placed to facilitate planning
and co-ordinate the activities of the three spheres of government. but its lack of focus,
"all-in" audience, and generalised presentations prevented this. Since it brought
together most of the top leadership in the country, it was important for receiving (rather
than sharing) information and should have provided opportunities for networking beyond
the confines of political parties. It did, however, serve as a forum for members to receive
information on important, often sensitive issues, requiring more inter-governmental
consultation, co-operation and co-ordination than the forum was able to provide. On the
whole, the Audit Team found that it failed as a multilateral, intergovernmental, policy-
planning body upon whom government could rely for support, advice and the
implementation of its development programme.
The recommendation of the Audit Team is that this body should not be disestablished. It
should be a smaller forum which meets twice a year after the President’s address to
Parliament. This would enable the government to meet and plan a programme of action
based on the government’s priorities. A second meeting should take place at the end of
the year after Parliament has convened in mid-June/July to reflect on government’s
outputs and achievements. The first meeting should be used by the President to set out
the priorities of government and these should be filtered down to the national, provincial
and local levels. The purpose of the second meeting should be to review progress of
objectives set out in the first meeting. In this way, "the IGF should be used as an
instrument to co-ordinate government programmes and enhance and add value to
Cabinet decisions." The presence of elected persons and officials is seen to be
important to generate a sense of achieving the unity and common purpose of
government.
The remit of the PCC should be what the premiers themselves had realised was
previously a lack of synergy between the provinces and the other spheres with respect
to planning, policy and legislation. In addition, the new Council would need to include in
their brief the terms of reference appropriate to the extensive executive authority
prescribed for premiers by the Constitution (S 125[1] and [2]; S 127[1] and [2]). In order
to achieve this, the PCC will perforce create new linkages with the other
intergovernmental relations for a, such as the MINMECs, statutory co-ordinating
institutions and other bodies. Given the experience of the previous forum, this is
unquestionably a priority.
The creation of the PCC should help to improve co-ordination between national and
provincial government and, with the development of appropriate linkages between the
formal and informal institutions of IGR, serve to integrate planning and development
across all the spheres. The reference point for the new forum is the constitutional
responsibility of premiers to exercise their executive authority (together with their Excos)
to promote good governance in the province. Inter alia, this involves the development of
provincial policy, championing development and the administration of key concurrent
functions shared with the national government. What separates the national-provincial
forum from the previous body is its emphasis on these core activities within a co-
operative government framework. An important feature of this framework is the formal
responsibility of premiers to use their executive authority to ensure the delivery of
services through co-operative interaction with local government.
2.2.3 Agenda
A "strategic agenda" should inform its deliberations and enable it collectively, with the
advice and support of the national Department of Provincial and Local Government, to
deal with the substantive issues confronting provincial government.
2.3.1 Accountability
There are seldom mechanisms in the provinces to deal with recommendations and it is
unclear whether MECs regularly make full reports to their Excos or whether line
ministers refer matters with any regularity or detail to Cabinet. The flow of information
between provincial and national departments is one of the serious problems raised by
respondents. The recommendation (see below) for an Act to regulate IGR structures is
designed to address this.
2.3.2 Regulation
The Audit Team recommends that legislation be enacted forthwith. While section 41(2)
of the Constitution requires an Act of Parliament to "establish or provide a structure and
institutions to promote and facilitate intergovernmental relations", it does not specify
when this legislation should be enacted, or prescribe its nature.
While the requirements of the sector will determine specific objectives, the Act
would establish general criteria such as would require MINMECs to act as a
means of co-operation, alignment and co-ordination of policies, and to
facilitate the interaction of national and provincial government and, wherever
applicable, in local government, according to the principles of Section 41 of
the Constitution.
2.3.5 Attendance
2.3.7 Disputes
The absence of structured linkages between the MINMECs and other IGR institutions
was a major weakness in the IGR system. The proposed legislation is designed to
address this.
2.4.2 Monitoring
There is little interaction with the FFC except at the Budget Council, which the FFC
attends as an observer. The role of the FFC needs further clarification and its contact
with provinces needs to improve.
FOSAD’s role would include oversight of professional management and the impact of
policy on service delivery. It could continue to review strategic direction of cross-cutting
issues, and submit recommendations to the Cabinet structures on monitoring policy
alignment. Its structure should reflect its new functions. Rather than being purely
technical, it should concern itself with serious strategic management and its approach
should be efficient governance generally, not performance management. The latter
should be left to the minister.
In summary, it should do the following, but not duplicate the activities of the
Cabinet committees:
_ satisfy themselves that they are cost-effective (this will entail a monitoring
exercise);
_ use their expertise to confirm that policies are viable and make
recommendations accordingly.
_ to focus on policy alignment in, for example, the following areas: housing,
economic development, transport systems and tourism; and
In all provinces, there was an emphasis on the need for capacity building within SALGA.
The Association was seen as ineffectual for a range of reasons – political, financial, and
because of its lack of capacity to facilitate co-operation between provinces and
municipalities. There is, in fact, a general dissatisfaction among local government
regarding the intergovernmental co-operation between provinces and municipalities. In
some cases there is little interaction between organised local government and the
province because of political differences. Lack of capacity to address some of the major
problems confronting local government is the cause of the problem.
There appears to be a problem of communication flow from national down to local level.
Very often, issues, addressed in national level structures such as the IGF and
MINMEC, in which SALGA is represented, do not filter down to local level. Some
respondents also remarked upon the preparation of local government representatives
who attend the MINMEC meetings. SALGA needs to address this as part of its
programme to build internal capacity.
The relationship between the provincial and local government is poor in most provinces
and needs to be addressed with urgency. The absence of structured relationships
between local government and the provinces has resulted in the programmes and
policies not being co-ordinated and aligned. Many provinces tend to act as "big brother".
Many respondents expressed the view that it should be appreciated that both levels of
government are important in the governance process. The absence of an effective
working relationship between the provinces and the provincial local government
associations does not help this.
Fora need to be developed to deal with planning, growth and development. There are
few linkages between the provinces and local government on growth and development.
(For example, there is very little interaction (if any) with regard to the formulation of
IDPs). There is no strategy in place to address issues. Communication takes place on
ad hoc basis. In some provinces the MEC meets with Exco chairs from time to time.
Most provinces compile their budgets in isolation. There is no consultation with local
government thus resulting in duplication and wasting of resources. In some provinces
(e.g. Eastern Cape), because of the lack of interaction, communities are able to apply to
both province and local government for funding of the same project.
2.6.7 Observers
In order to bridge the divide between the two spheres of government, a need was
expressed to develop a policy framework that would allow councillors to
become participating observers in provincial standing commitees. As already indicated,
this facility exists in Gauteng and a few provinces (where observers may not vote but
verbal interventions are allowed). However, it is not standard practice and there are
reservations about councillors’ participation. This should be followed up with the
provinces.
3.1.1 Monitoring
While all the provinces accept that monitoring is required by the Constitution, there
should be clarity about what monitoring entails. As a minimum, it entails the due
performance of provinces’ statutory executive obligations. Whether such obligations are
fulfilled requires monitoring, and processes giving effect to it should be devised.
Because monitoring in terms of section 100 is in and of itself an intervention, it should
preferably be spelled out in legislation.
3.2 Intervention
Section 100(3) provides that "national legislation may regulate the process established
by this section". Because of the intrusive nature of the supervision process and its
encroachment on the functional and institutional integrity of the provincial sphere, it
would be advisable for the sake of clarity and avoidance of future disputes to define and
describe the process closely in legislation.
At present the powers of supervision vary across sectors. Because this form of
intervention can be very intrusive, it should be defined in legislation.
The NCOP is perceived as not working effectively and its functions and structures need
to be reviewed for the following reasons, some of which are operational, while others
are structural. These include:
_ There are too few permanent members to deal with the large number of bills
especially since both section 75 and 76 bills receive its attention.
_ The system is too complex and the resources are too limited.
_ There is very little time to study documentation sent by the NCOP to the
provinces.
_ The provincial legislatures are unable to apply their minds to issues (due to
the shortness of the legislative cycle).
_ Tight time-frames set by the NCOP make it difficult for all concerned to deal
expeditiously with the legislative cycle and there is hardly an opportunity for
a considered view to be heard from the provincial legislatures through public
hearings.
4.2 Critique of the legislative process
_ that executive IGR processes have effectively eclipsed the NCOP’s function;
_ that provincial interests have already been articulated by the MECs in the
MINMEC or through other IGR processes;
_ that the NCOP is simply a rubber stamp of the National Assembly; and
The NCOP needs to carry out its oversight function more competently and select
committees need to be more active. The internal organisation of the select committees
has been found seriously wanting in regard to their management and the awareness of
delegates of the issues to be probed. (Note: There is no specific constitutional provision
that mandates the NCOP to perform an oversight function. Where it does exercise this
function, it should be situated within the framework of its overall objective as stated in
section 42[4].)
There is a strong need for SALGA to improve its participation. It is currently viewed as
neither having sufficient capacity nor attending proceedings regularly enough to make a
difference. While the NCOP has gained a high profile in local government through its
review of provincial interventions, SALGA’s role in the NCOP has been limited.
SALGA’s view that its "under-participation" is due to the lack of resources needs to be
addressed. The fact that SALGA has no permanent members in the NCOP, also
requires attention.
A number of reforms are needed for the NCOP to achieve this. There is a strong view
that, despite its limitations, the NCOP could play an effective role if the following were
addressed:
Given its limited resources, time pressures and lack of political clout hitherto,
the perception is that the obvious way forward is to ensure that the NCOP has
a definite IGR focus. This should apply in particular to its legislative and
oversight functions.
There is considerable artificiality in splitting bills into their section 75 and section 76
components, requiring the devising of most complex procedures. It is recommended
that this distinction be addressed. Although the differentiation between the categories of
legislation remains fundamental to the constitutional dispensation, it should be applied
more flexibly in practice without introducing unnecessary rules that are not required by
the Constitution. The option that mixed bills should not be in the Constitution but should
be regulated by legislation, warrants consideration.
This is a policy option to be addressed. If followed, it is likely that section 76 bills would
have a provincial perspective, which is currently missing in the early debating stages of
these bills. It might also generate enthusiasm in the provinces about participating in the
national legislative process. In order for the NCOP and the provinces to be able to
perform this primary legislative task adequately they would have to be well versed in the
relevant issues to deal competently with complex bills. This again calls for focused
capacity building in the areas of provincial competencies. (Note: The NCOP has the
power to initiate and prepare section 76 bills other than money bills. It could also be
more proactive by using its powers to propose section 75 legislation.)
_ limiting its oversight function to issues dealing directly with the executive
conduct of intergovernmental relations such as:
(a) national executive actions that affect provinces and local government,
including:
_ the functioning of the instruments and procedures of IGR such as the IGF,
MINMECs, the Forum for South African Directors-General (FOSAD), etc; and
Although it may be too soon to speculate on alternative ways of restructuring the NCOP
and the provincial legislatures, particularly if the informal reforms are effected, the
various proposals made by respondents in this audit merit debate. (See Chapter 4,
paras 7.3.3.1 and 7.3.3.2 of this Report.)
Members selected:
_ should also be skilled in managing tight timetables in the NCOP and the
provincial legislatures.
There is a strong perception that the constitutional provision for special delegates needs
to be addressed for the following reasons:
_ that they have "very little impact on legislation" and "would be rehashing the
work that they have already done at MINMECs".
The proposal that there should be more appropriate representation for SALGA in the
NCOP, including voting rights, should be addressed. SALGA would then come into the
NCOP as a sphere of government. (Note: Currently, each provincial association elects
10 representatives to the NCOP, while SALGA would select 10 representatives from the
90 provincial nominees for a particular meeting. The SALGA representatives in the
NCOP are thus in continuous flux. The deputy chair of SALGA regarded this practice as
being democratic, but lacking continuity. She proposed that "this lack of continuity and
consistency could be addressed if the same principle applicable to provinces is applied,
that is, provincial associations should choose six permanent and four special
delegates.")
In addressing the issue of unfunded mandates, the following actions are necessary:
_ The costing should be included in the proposed legislation, and not done as
an afterthought.
_ Government should build internal capacity for costing and policy analysis.
Where this capacity is to be located requires further investigation.
There are broad categories of indicators that need to be considered with regard to
intergovernmental relations. (See Chapter 5 para 4.4.1.) These ought to be developed
further.
Attention needs to be given to the fact that the information available at a local level is
presently inadequate for any type of comprehensive, in-depth analysis. The Department
of Provincial and Local Government has made some leeway in this regard with Project
Viability. However, more emphasis should be placed on detailed information collection.
In the experience of the Audit Team, there would appear to be no compelling urgency to
enact this legislation. First and foremost, delaying the legislation does not impede non-
judicial dispute settlement; to the contrary, it might allow best practices to emerge which
can then be captured in effective legislation. Rather than regulating dispute settlement
processes too much, too early, it would be in the interests of developing sound
intergovernmental relations to allow the maximum of flexibility and informality in view of
the complex web of intergovernmental relations in which the array of organs of state are
involved. Creating inappropriate formal structures and procedures may encourage
more, rather than less, disputes.
Second, the absence of legislation does not create a legal vacuum. The
general duty to pursue non-judicial means of dispute resolution still applies.
Every organ of state remains under the general constitutional obligation of co-
operative government of avoiding legal proceedings against another organ of
state. Likewise, the duty to exhaust all other non-judicial remedies before
approaching a court, remains operative. Practice suggests that the various
organs of state are indeed heeding this constitutional mandate. Disputes
between and among spheres of government have not been disruptive of
intergovernmental relations. Practice suggests that where disputes did arise,
they were approached in the spirit of co-operative government by seeking
compromises through the political process. Litigation, where it did occur, has
not been destructive or unnecessary; the Constitutional Court has in a number
of judgments given more flesh to the bare bones of the Constitution.
The experience gleaned from practice suggests that when the legislation is drafted the
focus should be on the process of dispute settlement rather than the creation of new
structures. Furthermore, in prescribing mechanisms and processes a minimalist
approach should be taken.
The focus should be on promoting the process of dispute settlement rather than the
creation of new structures. Section 41(2) makes a clear distinction between
Parliament’s obligation to "establish or provide for structures and institutions to promote
and facilitate intergovernmental relations" and its obligation to "provide for appropriate
mechanisms and procedures to facilitate settlement of intergovernmental disputes".
With the promotion and facilitation of intergovernmental relations, the focus is
necessarily on institution building – the creation of fora in and through which co-
operative government can be effected. In contrast, where disputes develop, the focus is
properly on the processes of dispute settlement, rather than on creating new institutions
for this purpose.
The audit has revealed that intergovernmental disputes include constitutional issues,
legislative interpretation and policy, and factual disagreements. The nature of the
disputes differs as well as the need for expeditious settlement. It would neither be
desirable nor practicable to prescribe a uniform mechanism and procedure for the
settlement of all these disputes. The fear was expressed by interviewees that legislation
should not make the process of dispute resolution inflexible or too cumbersome which
would then defeat the object of the exercise. Examples were mentioned where a dispute
had to be resolved within 24 hours. In view of the wide variety of disputes that may arise
between a wide array of organs of state, the Act should list the broad range of dispute
settlement mechanisms and procedures.
A wide choice should be available because the nature of a dispute and the
position of the parties involved are important factors in determining an
appropriate dispute settlement mechanism or procedure. The choice should
be left to the parties. Where they cannot come to an agreement, the court
which is approached by one party, may well refer the dispute back; a failure
even to agree on a method of non-judicial dispute settlement could well be
evidence that "every reasonable effort to settle" has not been made.
Any non-judicial dispute settlement mechanism or procedure usually includes the offices
of a mediator, conciliator or arbitrator. It is not recommended that organs of state should
perform this function as it blurs the distinctiveness of spheres. Independent facilitators
and arbitrators would be more appropriate to fulfil this function. The Department of
Provincial and Local Government should, however, play a facilitative role by keeping a
list of accredited mediators and arbiters. The list may specify specialists in particular
fields of intergovernmental relations, such as local government or finance.
Notes