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South Africa:
Provinces Take a Back Seat
CHRISTINA MURRAY / S A L I M A . N A K H J AVAN I
The advent of democratic elections in 1994 brought about a massive
change for a critically isolated South Africa. Suddenly the pariah state was
a celebrated new democracy and its president, Nelson Mandela, an international
icon. The world wooed South Africa and South Africa responded
wholeheartedly.
The Constitution is unequivocal on the exclusive authority of the national
government to enter international agreements. Still, South Africa’s nine
provinces and many municipalities have enthusiastically developed international
connections. But disputes remain regarding both the constitutional
context in which provinces and municipalities engage in international
relations and their role in national treaty negotiations affecting
their jurisdiction.
The first international forays by sub-national officials were largely a matter
of “toasting and twinning.” A plethora of aspirational agreements were
struck, but while motivated by sincere openness, produced little beyond
paper and reciprocal travel.
Now, as the real challenges of transforming South Africa’s racially
skewed economic and social system are better understood, provincial and
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34 Christina Murray / Salim A. Nakhjavani
municipal enthusiasm towards international relations is beginning to
translate into agreements of concrete economic benefit or social value to
the whole population. There is a shift towards purpose-driven arrangements
guided by national socio-economic priorities which aim for greater
alignment with national foreign policy objectives. The Eastern Cape
Province, with a quarter of its 7 million people lacking any formal education
and facing a 31 percent unemployment rate in 2003, paved the way by
focusing only on project-specific agreements with development partners.
Other provinces are following suit.
As provincial actors focus on securing donor funding, however, there
has been a marked pull by the National Treasury to centralize accountability
for the spending of that aid. In the name of fiscal oversight, the
national government has begun occupying the field of provincial international
relations.
Humanitarian concerns have also fostered a sense of African regionalism
engendering more concrete benefits than earlier initiatives. For
instance, the province of KwaZulu-Natal provides free health services, by
informal acquiescence, to residents of Swaziland and Mozambique who
cross the border for this purpose.
Although their international forays are increasingly aligned with national
goals, provinces and municipalities continue to conduct international
activities with minimal coordination amongst one another or with the
national government – with sometimes embarrassing results. Thus, in
order to reduce such confusion and inefficiency, the national Department
for Provincial and Local Government first promulgated guidelines on
municipal international relations and then started work on a policy framework
for provincial international relations. Meanwhile, KwaZulu-Natal is
circulating its own draft framework as de facto best practice. This pragmatic
approach has pushed into the background questions about the legality of
international agreements concluded by provinces and municipalities and
set aside the line between provinces’ legitimate international relations and
agreements that trespass on the power of the national sphere.
But, however eager provinces and municipalities may be, under South
Africa’s constitutional framework international ventures by provinces and
municipalities are likely to remain minor. By contrast, many agreements
concluded by the national government have significant implications for
provinces and municipalities.
South Africa is characterized by provinces with concurrent responsibility
for trade, agriculture, health and the environment – matters which occupy
a large part of South Africa’s international agenda. Moreover, the
Constitution anticipates that provinces will usually implement national
laws concerning such matters. Thus, provinces have a vital interest in international
agreements in these fields for two reasons: they concern provincial
jurisdiction and provinces are likely to be required to implement them.
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South Africa 35
This constitutional framework suggests that provinces should be
involved in the negotiation of international agreements in areas of concurrent
responsibility. Provinces must consent to the ratification of some
international treaties through their representation in the second chamber
of the national Parliament, the National Council of Provinces (NCOP).
Ironically however, the NCOP need only table, not obtain approval for
agreements of ‘a technical, administrative or
executive nature’ – precisely those most likely to
raise matters of provincial concern.
This constitutional omission would seem
immaterial within a constitutional framework of
‘cooperative’ government under which national
government should engage provinces and
municipalities when it negotiates agreements on
matters concerning their responsibilities. But,
this seldom happens. There is clear need for a
framework to structure cooperation between the provinces and the national
government. Otherwise, international relations at the sub-national
level will be curtailed by the central government in the name of fiscal
accountability and risk management rationales.
There are exceptions to the reluctance of the national government to
draw provinces into international negotiations on matters of concurrent
responsibility. The most significant occur in the area of the environment
in which the relevant national department uses provincial agencies with
specialized expertise as implementing partners. The Maloti-Drakensberg
Transfrontier Park – an ambitious, five-year project to promote conservation
through nature-based tourism – established by agreement between
Lesotho and South Africa and funded by the Global Environment Facility,
is an excellent example. The province of KwaZulu-Natal was involved in
the negotiations and the provincial conservation authority is the delegated
implementing agency for South Africa.
South Africa’s multilevel government is young and as its provinces and
municipalities struggle to provide housing, pay pensions and manage
schools, their international activities ought not to be excursion opportunities
for officials, but should translate into support initiatives to address
domestic needs. Current strongly centralizing tendencies in national
government, coupled with uncertainty about the future of provinces suggest
that, for the time being, the involvement of South Africa’s subnational
governments in international relations will likely depend on a stark choice
between alignment with national frameworks, or ongoing, but eventually
unsustainable, ad hoc engagements
There is clear need
for a framework to
structure cooperation
between the
provinces and the
national government.
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