AN OVERVIEW OF LOCAL GOVERNMENT AND PUBLIC PARTICIPATION IN DECISION MAKING

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Lawson Naidoo – Executive Secretary, Council for the Advancement of the South African Constitution (CASAC)

Date: 9 AUGUST 2019

Place: Cala

In a paper commissioned by CASAC in 2015 entitled “The System’s Not To Blame? Electoral Systems, Power and Accountability” Prof Steven Friedman noted:

“While definitions of accountability are hotly debated in academic literature, for practical purposes we can understand it as a key element of the core democratic principle that holders of public office govern on behalf of the people and are therefore entitled to govern only as long as people wish them to do so. This in turn means that they should be accountable to the people who are entitled to know what office bearers do to serve them, to tell them what they should do and how they should do it, and to remove them from office if they fail to comply. Accountability is thus a core consequence of the democratic idea of rule by the people since it assumes that public office holders are, in principle, servants of the people who must report to and take instruction from those they serve. It is, therefore, also a core value underpinning the South African Constitution.”[1]

I will return to aspects of this paper later in this presentation.

Introduction

  • In the new democratic dispensation, the South African government was tasked with transforming local government. This occurred by shifting from racially designed local government structures to democratic and non-racial local government structures. The new government sought to merge formerly white and black areas under one administrative regime. [2] This process became permanent with the advent of the Constitution of the Republic of South Africa in 1996 and the legislation that came thereafter.

 

  • As it stands there are 278 municipalities in the country. There are 8 metropolitan councils, 44 districts and 226 local municipalities. In 2018, the Department of Co-operative Governance and Traditional Affairs (COGTA) characterised 30% of the municipalities in the country as dysfunctional. This input will focus on the issue of public participation in decision making in local government. As public participation is recognised as an important value in democratic societies, its role in decision making must be evaluated in the light of the failures of local government.

Legal Framework

  • In the context of public participation two key principles emerge from the Constitution. Firstly, that everyone is equal under the rule of law in terms of section 1 (d)[3], and secondly, that local government has a duty to provide democratic and accountable governance in terms of section 157. [4] Section 1 (d) speaks of a “multi-party system of democratic government, to ensure accountability, responsiveness and openness”. These provisions place great responsibility on all tiers of government. Access to information is absolutely critical to being able to claim rights in terms of the Constitution, and this is also a theme to which I will return later.

 

  • Chapter 7 of the Constitution sets out the rights, duties and obligations of local government. Section 151 states that the local sphere of government consists of municipalities. [5] More importantly, section 152 provides for the objects of local government which are; “providing democratic and accountable government for local communities; ensuring provision of services to communities in a suitable manner; promoting social and economic development; promoting a safe and healthy environment; and encouraging the involvement of communities and community organisations in matters of local government.”[6]

 

  • There are three pieces of legislation which govern municipalities. Firstly, the Municipal Structures Act which under Chapter 4 sets out the internal structures and functionaries. Part 4 deals with the Ward Committees which are responsible for enhancing participatory governance in local government. [7] Secondly, the Municipal Systems Act in which Chapter 4 sets out community participation. Part 16 envisages a culture of participation between the state and local communities. Lastly, the Municipal Finance Management Act regulates the Municipal budget.

Public Participation

  • According to Bassuday and Pypers, public participation can be defined as the following;

 

Public participation is a process by which Parliament, the Provincial Legislatures and Municipalities consult with the people, especially interested or affected individuals, organisations and government entities, before making decisions. However, public participation is actuality is a two-way street that should comprise of effective communication and a collaborative problem-solving mechanism, with the goal of achieving better and more acceptable decisions from both government and the people. Public participation can also be referred to as ‘public involvement’, ‘community involvement’ or ‘stakeholder involvement’. This is evident in the constitutional framework of our Municipal Structures Act and Municipal Systems Act.” [8]

 

  • Ward Committees function as a means of enhancing community participation by providing a link between communities and structures of the Council. In terms of the Guidelines for the Establishment and Operation of Municipal Ward Committees’ (Notice 965 of 2005), Section 5(1)(3)(b)(v) prescribes that ward committees ‘ensure constructive and harmonious interaction between the municipality and community through the use and co-ordination of ward residents’ meetings and other community development forums. [9] The guidelines further establish that ward committees are key structures for public participation as well as occupying a non-partisan, independent and advisory role to communities.[10]

Decision making

4.1. Section 5 of the Municipal Systems Act determines the rights of members of local communities. Specifically, section 5 (1) (a) (i) states that members of local communities have the right to contribute to the decision-making processes of the municipality.[11] Section 11 of the Municipal Systems Act provides that the executive and legislative authority of a municipality is exercised by the council of the municipality, and the council takes all the decisions of the municipality subject to section 59.[12]

4.2.It is important to note the key difference between local government from the national and provincial tiers. Whereas there is a clear distinction between the legislative (Parliament) and executive (Government) structures at national and provincial levels as a part of the principle of the separation of powers – the judiciary being the third component – at a local level, municipalities combine the law-making and governance responsibilities. The checks and balances that are a feature of the separation of powers doctrine are therefore absent at a local level.

Sakhisizwe Local Municipality

5.1. Sakhisizwe local municipality has not had a by-election since 2015. Alfred Siyabulela Nxozi of the African National Congress was the new councillor in Ward 2. The composition of the municipality includes the following: Siyabulela Nxozi (Mayor), Kholiswa Faku (Speaker), Cllr Buyiswa Ntsere ( Infrastracture and Integrated Planning), Cllr Nokuphumla Stofile (Social Needs and Community Service) and Mr Dm Mvulane ( Muncipal Manager).[13] There are currently 10 ward councillors, PR councillors and a management team. However, there are vacancies for a Chief Financial Officer, Corporate Services Manager and IPED Manager.

5.2. Due to the lack of information it is unclear why there have been no by-elections. If there has the information has not been released online. Furthermore, there are two annual reports missing for the 2014/15 and 2016/17 years. It is unclear how accountable the municipality is to its members and how effective the ward counsellors are.

Challenges

6.1. Government acknowledged the fact that local governments are not working well because of numerous problems relating to:” systemic factors; policy and legislative factors; political factors, capacity and skills constraints; weak inter-governmental support and oversight; and inter-governmental fiscal system issues.” [14]

6.2. It has been acknowledged ward committees have problems relating to representation, factional power-plays and party politics.

6.3. Scholar T Tshoose suggests that public participation in South Africa lacks “transformative qualities and are marred by a mixture of neglect, lack of service delivery, corruption, infrequent feedback, limited involvement and inexperience on the part of planners and officials.”[15]

Provincial Interventions

7.1. Provincial Government may intervene in the functioning of local municipalities in the following ways:[16]

  • Where a municipality is unable to fulfil an executive obligation
  • Where there is a serious financial problem
  • Where a municipality fails to approve a budget
  • Where a municipality, as a result of a financial crisis, cannot meet its obligation to provide basic services

Organisation and Mobilisation

8.1. In his paper which I  referred to at the beginning Prof Friedman essentially argues that changing the electoral system at a national and provincial level will not be the magic bullet that solves the problem of a lack of accountability. As we know we have a mixed electoral system at a local government level with directly elected ward councillors and Proportional  Representation councillors, yet the levels of accountability at this level are probably even worse! Friedman then goes on to make some suggestions about what can be done, advocating for a change in the culture of our politics. He says “Without the vote, citizens cannot exercise power. But, on its own, the vote is not a source of power: to use it effectively citizens need to be able to work with like-minded people, which requires organisation, and they also need to be able to access government effectively … It is organisation and access which confers the power to hold to account and the vote is only a means to that.”[17] He argues that a more organised citizenry is key to extracting greater accountability from government.

8.2. But without access to key information we would not be able to hold government to account – the constitutional value of openness must be pursued vigorously. Only once we know what government is supposed to do, has committed to do, and has actually done, can we demand accountability. There needs to be free flow of information from the Municipality, councillors and management to enable citizens to exercise democratic rights. This is an essential part of the social compact envisaged by the Constitution.

Concluding remarks

Despite a progressive legal framework, political problems and ineffective implementation seem to be the cause of these problems. Furthermore, Sakhisizwe Municipality is an example of a municipality whereby there is a lack of transparency regarding information. Better exercise of public participation and community feedback is necessary in this regard. Tshoose suggests that more must be done to help the marginalised and poor through forms of “meaningful engagement” as used in various court cases such as  Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others [2008].[18]

[1] Steven Friedman, The System’s Not To Blame? Electoral Systems, Power and Accountability, April 2015, www.casac.org.za

 

[2] Christopher Mbazira “Service Delivery Protests, Struggle for Rights and The Failure of Local Democracy in South Africa and Uganda: Parallels and Divergences (2013) 29 SAJHR at pg. 262.

[3] Section 1 (d) of the Constitution of the Republic of South Africa 1996.

[4] Section 157 of the Constitution of the Republic of South Africa 1996.

[5] Section 151 of the Constitution of the Republic of South Africa 1996.

[6] Section 152 of the Constitution of the Republic of South Africa 1996.

[7] Municipal Structures Act 117 of 1998.

[8] Bassuday and Pypers “BP 421: Public Participation in Local Government” December 2016 at pg. 2.

[9] Piper, L. and Deacon, R. (2009). Too dependent to participate: ward committees and local democratisation in South Africa.  LOCAL GOVERNMENT STUDIES, 35(4) at pg. 418.

[10] Ibid.

[11] Section 5 (1) (a) (i) of the Municipal Systems Act 32 of 2000.

[12] Ibid at section 11

[13] https://www.sakhisizwe.gov.za/index.php?page=default_templates

[14] Op cit note 2 at pg 264.

[15] C I Tshoose “Dynamics of public participation in local government A South African perspective” African Journal of Public Affairs (8) 2 June 2015 at pg. 18.

[16][16] Michelle Toxopeüs, Helen Suzman Foundation “Municipalities III: Assessing provincial intervention in local government. Are provinces doing too little or too much?” July 16, 2019

[17] Op cit at pg 58.

[18] Ibid at pg 23.

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