A political watershed is looming in Western Cape politics as the DA’s bluff is called on delivering federalism.
The Western Cape Peoples Bill (Freedom Front Plus) and the Western Cape Provincial Powers Bill (DA) have both been tabled in the Western Cape Provincial Parliament(WCPP) and the public participation process is underway for both.
All indications are that the Freedom Front Plus (FF plus) is going to vote for both its own and the DA’s Bill, whilst the DA intends to vote in favour of its own Bill but against the FF plus’s.
In voting against the FF plus’s Bill, the DA will be publicly rejecting an opportunity to deliver constitutional federalism.
Western Cape Provincial Powers Bill
The DA’s Provincial Powers Bill creates a legislative framework which legally compels the Western Cape Government to identify which powers it requires to provide adequate services to, and meet the constitutional entitlements of, the Western Cape people. The explicit context is that the national government is either unwilling or unable to provide these services.
The Bill contains clear action points with specific timelines for the Premier, the speaker, a new ‘Provincial Powers Committee’, and the Western Cape Parliament requiring them to pursue maximum autonomy from the national government via the devolution of powers.
It is a powerful Bill, but it has an Achilles heel. In the final reckoning, it relies on section 238 of the Constitution and the voluntary assignment of powers from the national government. The national government has repeatedly refused to devolve powers and the DA has consequently been unable to deliver on its 2019 provincial election promises.
Western Cape Peoples Bill
The FF Plus’s Peoples Bill affirms that the Western Cape ‘people’ are constitutionally distinct from the South African people as a whole (even though they may elect to form a part of them), and that they meet the criteria recorded under international law to describe a ‘people’. Beyond the existing administrative and constitutional realities which establish a Western Cape population, the Western Cape has distinctly different ideological values to the rest of South Africa which the FF plus say is evidenced by election results since 1994.
This is highly significant because South Africa has repeatedly sworn to uphold the right of self-determination which all ‘people’ undeniably have.
The Bill then asserts that this right to self-determination entitles the Western Cape ‘people’ to make decisions for themselves, including over the devolution of powers, federal autonomy, or outright independence. The Bill does not determine how the Western Cape people must exercise the right, which is ultimately a decision for the Western Cape people to make for themselves.
Collaborative or Competing Bills?
There is a political tension between these two Bills.
At face value the two Bills are entirely complementary. The Powers Bill creates an obligation to seek additional provincial powers but contains no constitutional right by which to compel national government to devolve them, whilst the Peoples Bill creates the opportunity to demand additional powers by right, without specifying what those powers should be.
The FF Plus believe that both Bills should be passed. They have privately indicated that they will vote for the DA’s Bill and have the almost universal support of all the organisations working towards greater provincial autonomy.
In contrast, the DA have chosen to view the two Bills as being in competition with each other and they have privately indicated that they intend to vote for their own Bill but against the FF Plus’s.
Does theDA really want federalism?
I have worked closely with both organisations. I conceived the Western Cape Peoples Bill and led the legal team which wrote it, and I gave input into the Western Cape Provincial Powers Bill.
To understand the political tension between these Bills you need to understand why there came to be two Bills in the first place.
The DA claims that federalism is a core principle of the organisation. Until the emergence of the Cape Independence movement this was a ‘shot to nothing’ for the DA. They had no way to deliver federalism which would require a change to the South African Constitution, and other than having a ‘Federal Leader’ and a ‘Federal Executive Committee’, for 23 years they did nothing whatsoever to pursue constitutional federalism.
Instead, they pursued the devolution of powers which is usually associated with unitary rather than federal states. Devolution is the voluntary assignment of powers by the national government, whilst those powers are assigned by right in a federal system.
Bills a response to Cape Independence Pressure
In recent years, calls for Cape Independence have gained significant momentum. With the DA under pressure from its Western Cape voters, the majority of whom support it, the DA has habitually countered by proposing federalism as a more realistic solution. The problem is, the DA had no way to deliver it.
The Cape Independence Advocacy Group (CIAG), who were playing a leading role in the charge for Cape Independence, recognised that whether the Western Cape wanted federalism or Cape Independence, the next step was the same. The Western Cape people needed to obtain control over their own decision making (self-determination), and it would benefit the Cape Independence movement if the Western Cape requested federalism.
Either the national government said yes, and the Western Cape was 90% of the way to independence, or the national government said no and any pretence that federalism was a viable alternative to Cape Independence would be emphatically settled. Federalism cannot be achieved without the consent of the national assembly, independence can.
The CIAG approached the DA and suggested a collaboration between all of the organisations seeking autonomy where the first order of business should be to deliver federalism. As a result of this the Western Cape Devolution Working Group(WCDWG) was formed. The CIAG then drafted the Western Cape Peoples Bill and scoped out a Western Cape Federal Autonomy Bill which would follow in the national assembly. It exploited a constitutional back door using international law and in doing so opened, for the first time, a clear path to full federal autonomy for the Western Cape.
DA reject federalism
This placed the DA under a very different pressure. For the first time, the DA was confronted with the realities of what federalism, their stated policy, means in practice and what would be required to deliver it. They were uncomfortable with the concept of the Western Cape acting alone and feared the reaction of DA voters in the rest of the country.
In contrast, the CIAG and others pointed out to the DA that federalism by its very nature involved treating different regions differently. That is the essence of federalism.
For several months the DA stalled and prevaricated, until the CIAG and the FF plus, who had supported the Bill from the outset, lost patience with the DA and agreed that the FF plus would table the Bill, forcing the DA to take a stand either for or against federalism.
Caught in apolitical dilemma, the DA responded by writing the Western Cape Provincial Powers Bill. It pursued devolution rather than federalism, which the DA viewed as politically safer, and tried to dress it up as federalism. To disguise its unwillingness to pursue genuine federal autonomy (constitutional federalism) the DA invented the term ‘functional federalism’ (which is simply a euphemism for devolution).
Consequently, both bills were tabled.
Cape Independence or status quo?
It remains to be seen if the public participation process will influence the DA to support the Peoples Bill. The CIAG has written to every member of the WCPP asking them to honour their constitutional obligation to act in the best interests of the Western Cape people and to vote in support of the Bill. The participation process is open until 7 August and several thousand people have already registered their support.
If the DA do vote against the Peoples Bill, they will no longer be able to claim that they support genuine federalism. Not only will they have spurned an opportunity to deliver it, but they will have actively voted with the ANC against it. They will also have proven that they are willing to act against the best interests of the Western Cape people to further their own political ambitions elsewhere.
By rejecting federalism, the DA will also simplify the case for Cape Independence considerably. If constitutional federalism is not an option, then the choice Western Cape voters face will be between the political status quo or Cape Independence. There will no longer be any middle ground.
The CIAG fully intends to make Cape Independence a key election issue in 2024.