South Africa: Federal or Unitary?

• Abgenia Rivoningo Hlophe

South African Governing System

Introduction

The governing system of a country is a crucial component in understanding the manner in which the political sphere functions. This essay will examine the federal and unitary system of government and relate it one to South Africa. In this respect, this essay will focus on the key features of the systems. Notably, this essay aims to prove that the governing system of South Africa, despite having come to existence in 1909 with a constitution that was unitary (Welsh, 1994:243), is federal. However, an inclusion of the unitary system is mandatory for the sake of comparison.

Federal and Unitary systems definitions and affirmative argument.

Andrew Heywood defines the federal system of governance as a system where power is decentralized, meaning that the central and peripheral levels of government are sovereign (2013:381). He further emphasizes the statement that power is decentralized in a federal state by expanding on the concept of decentralization, reviewing its strengths, as the ability to encourage participation, responsiveness, legitimacy and liberty (Heywood, 2013:383).

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Adding to this assertion, Kenneth Newton credits the federal system for having many strengths that will make a country successful if it is utilized. He describes the federal system as a way to separate power and encourage consensus within the government (2010:60).Another advantage that he outlines is that the federal system provides the government with an opportunity to address the different needs of people irrespective of geographical location (2010:61).

To contrast the federal system, Heywood speaks of the unitary system of government. In this system, power is centralized and there is only sovereignty of power in one authority (2013:385). Additionally, he draws attention to the fact that there are instances where power can be decentralized, which is when there are devolved assemblies (2013:386). Furthermore, the unitary system’s centralization of power has the advantage of having national unity, encouraging uniformity, equality and progress (Heywood, 2013:386).

Also adapted from Newton’s dissertation, are the strengths of the unitary system. He writes that unitary systems having central government increases accountability and promotes more organized decision making and fairness (2010:112).

With an understanding of the respective systems of government, it places one at an advantage to grasp how a country resembles a particular system, when looking at the key features of the system which follow.

Key features associated with South Africa’s governing system.

As priory stated, South Africa is a federal system. A federal system has certain characteristics and features which aid in the understanding of what it means for a country to be federal. The features are prescribed as the existence of a written constitution, two relatively autonomous levels of government, a constitutional arbiter and linking institutions (Heywood, 2013:384). Each of these features will be investigated and referred back to the South African context.

Firstly, the existence of a written constitution. This is perhaps the most important feature. In any federal system, the constitution must be a formal written document that outlines how government works, the role of each section of government as well as the legislative framework. South Africa has a written constitution which is regarded as the ‘supreme law of the Republic” (South African constitution, 1996:08). Any law that that exists in South Africa must be justified in accordance with the constitution, otherwise it does not have any validity. The presence of a written constitution is vital to the classification of South Africa as a federal system, the constitution forms the foundation of the argument being presented.

There are three levels of government namely the national, provincial and local government. Of these levels of government, two levels are “relatively autonomous” (Heywood, 2013:384). That means that the national and state government each have a certain range of power. In the constitution of South Africa it is clearly stipulated that the spheres of government are distinctive, interdependent, interrelated (South African constitution, 1996:40). It may appear to present a complexity to the initial definition, however when closely reviewed, the constitution says that the spheres are merely interdependent not that they don’t hold separate reins of power. In fact there is further evidence in the constitution to prove the decentralization of power, it states that the different spheres of government have legislative authority (South African Constitution, 1996:44). Indeed, the national and provincial level of government have power, they are only obligated to remain within the borders of the constitution. Also, the fact that all levels of government have a right to be represented in parliament through the National Assembly and the National Council of Provinces, shows that there is autonomous power because the procedure to get a law passed, is the same for both national and provincial government. Not only the abovementioned but the fact that each province has a legislature where there is a structure separate from national government and has the power to pass bills that affect the province without having to attain permission from national level. Of course, the bill would have to be constitutional but the fact that it can be implemented by provincial authority shows the decentralization (South African Constitution, 1996:82). Since South Africa places great emphasis on the Head of State, the laws implemented at national level, which are constitutional, are of the greatest authority. Even with that understanding, there are matters which the Head of State cannot check such as the dispute between two provinces, or to suppress a rebellion or establish a productive impose (Molteno, 1896:40).

Comparatively, critics might present the structure of the world’s largest economy and oldest federal system, the United States of America (USA) to dispute the claim made about South Africa being solely federal, on the basis that it does not have separate branches but rather it has levels of government that are interdependent. While that might appear plausible, John McCormick writes about how the USA is a unique federal system because of its set up but even so, there is “shared power, checked and balanced with one another” (2009:48).

Another feature of a federal system is exposed, specifically, the presence of a constitutional arbiter. Heywood tells us that this is the formal undertaking of the constitution which is implemented by the Supreme Court and hereby has the authority to arbiter in the event of a dispute between the national and the provincial government (2013:384). Nowhere is this better outlined than in the South African constitution, the courts are independent and are accountable only to the constitution and the law, no entity can interfere with the courts (1996:84). Although the courts, whether being the high court or a magistrate’s court in a particular province, rule according to national legislation, it should not be mistaken as being under the national government. It complies with the constitution particularly, not with a certain level of government, therefore the provincial government cannot have its own laws in the magistrate’s court. Thereby adhering to its main characteristic of being a federal feature.

Another interesting feature of a federal system, is the linking of institutions. An assertion by Heywood will be implored upon to understand this feature. He explains this as an effort to garner cooperation and understanding between the national and provincial government because these are the autonomous levels and the local government adheres to the provincial rule (2013:384). This is done through bicameralism, which in the South African context would be the National Assembly and the National Council of Provinces. Kenneth Newton raises an awareness of a weak and strong bicameralism, which means that one house is stronger than the other (2010: 113). Keeping this in mind, the South African parliament is made up of the National Assembly and the National Council of Provinces and they both participate in the legislative proceedings, however, there are some issues such as war and peace treaties, army and navy, currency and taxation (Molteno, 1896:118) which are left to national government, where the National Council of Provinces may not vote upon. From that we can say that South Africa has linking of institutions with a “weak bicameralism” system because the National Assembly is stronger than the National Council of Provinces.

While the evidence seems to correlate with the claim that South Africa is a federal system, supporters of unitary systems many present the argument, that South Africa is unitary because the National government has a lot of power vested in it and there is a parliament. However this naysayer’s argument can be countered by David Welsh’s information that when South Africa began to function as a republic in 1909, there was a unitary system in place and the key players of the Inkhata freedom party who proposed federalist policy were attempting to strip the central government of power, which granted the constitution we have today, was a successful attempt (1994:243). This has been mentioned because it explains why South Africa has a parliament. Bearing in mind that South Africa used to be a British colony and as it is a widely recognized fact that, Britain is where the concept of a parliament started. This does not suggest that South Africa is unitary but rather there are remnants of colonization which proved to be effective and were not eradicated.

Conclusion

This essay has defined as well examined the key features of a federal system without isolating the unitary system, and further related the features to South Africa. Based on the evidence of the presence of a written constitution, two autonomous levels of government, constitutional arbiter and linking of institution as well as decentralized power in the South African political sphere, it is with concrete knowledge that the initial stance, that South Africa has a federal system of government is found to be correct. Regardless of the presence of a parliament. South Africa evidently has decentralization of power and thus shows all the attributes of a federal system.

Bibliography

Heywood, A. 2013. Politics. United Kingdom: Palgrave Macmillan.

McCormick, J. 2009. Comparative Politics in Transition. Indianalopis: Cengage learning.

Molteno, P. 1896. A federal South Africa. London: Sampson Law and Marston.

Newton, K & Van Deth, J. 2010. Foundations of Comparative Politics. South Hampton: Cambridge University Press.

South African Government. (1996). South African Government. 9108-96. [Online] Available from www.gov.za/documents/constitution/9108-96.pdf . [Accessed: 03 March 2014].

Welsh, D. 1994. Evaluating federal systems. Cape Town: Juta&co.