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THIRD REPORT TO THE NEGOTIATING COUNCIL ON
CONSTITUTIONAL
PRINCIPLES BY THE TECHNICAL COMMITTEE
ON
CONSTITUTIONAL MATTERS
27 May
1993
1. Introduction
1.1 We were requested by the Planning Committee to develop our Second
Report on Constitutional Issues (19 May 1993) so as to formulate
a comprehensive
set of constitutional principles, and in particular principles on the powers and
functions of regions to serve the
purpose suggested by us in paragraph 6.3 of
our Second Report.
1.2 We do not think that any good purpose will be served
by attempting to analyse each of the submissions made to us in order to indicate
the type of constitution that is contemplated by the various participants, or
how they differ from one another. We have considered
all the proposals put to
us, and have decided that we can best give effect to the request from the
Planning Committee by formulating
a set of constitutional principles for debate
in the Negotiating Council. In formulating these principles, we have drawn on
the
Codesa documents, and on our own knowledge and experience as well as the
submissions of the participants.
1.3 The principles that we offer for debate
do not accord wholly with the submissions of any of the parties, and we
appreciate that
they are likely to meet some resistance from all of the
participants. It seems to us, however, that areas of agreement, disagreement
and possible compromise will emerge from the debate on our report, and that in
the process, the participants may be able to find
a solution along the lines
suggested by us in paragraph 6.3 our Second Report (19 May 1993). For the sake
of clarity we deal with
general constitutional principles and principles on
SPR's in separate paragraphs. Together they constitute one body of
constitutional
principles.
1.4 We have not yet had a response to paragraph
3.6 of our Second Report. In the circumstances we do not intend dealing in this
report
with the question of confederation. How, if at all, a confederation can
be accommodated within one set of constitutional principles
may depend on that
response.
2. General Constitutional Principles
2.1 The constitution of South Africa shall provide for the establishment
of a single sovereign state with a democratic system of government
and a common
South African citizenship.
2.2 The constitution shall be the supreme law
of the land, shall be binding on all organs of government, shall prohibit racial
and
all other forms of discrimination and promote racial and gender equality and
national unity.
2.3 There shall be a separation of powers between the
legislature, executive and judiciary, with appropriate cheeks and balances to
ensure accountability, responsiveness and openness.
2.4 The judiciary shall be competent, independent, legitimate and impartial
and shall have the power and jurisdiction to safeguard
and enforce the
constitution and all fundamental rights.
2.5 There shall be
representative government embracing multi-party democracy, regular elections,
universal adult suffrage, a common
voters roll, and in general, proportional
representation.
2.6 Provision shall be made for freedom of information so
that there can be open and accountable administration at all levels of
government.
2.7 Formal legislative procedures shall be adhered to by
legislative organs at all levels of government.
2.8 The diversity of
languages, cultures and religions shall be acknowledged, promoted and
protected.
2.9 Collective rights of self-determination in forming,
joining and maintaining organs of civil society, including linguistic, cultural
and religious associations, shall, on the basis of non-discrimination and free
association, be recognised and protected.
2.10 All shall enjoy
universally accepted fundamental rights, freedoms and civil liberties, protected
by entrenched and justiciable
provisions in the constitution.
2.11 The legal system shall ensure the equality of all before the law and an
equitable legal process. The principle of equality before
the law includes
laws, programmes or activities that have as their object the amelioration of the
conditions of the disadvantaged,
including those disadvantaged on the grounds of
race, colour or gender.
2.12 The status of traditional leaders shall be
acknowledged and recognised in an appropriate manner in the constitution.
Unless
provided otherwise by legislation, indigenous law shall be applied to the
extent that it is compatible with the provisions of the
fundamental rights
contained in the constitution.
2.13 Provision shall be made for
participation of minority political parties in the legislative process in a
manner consistent with
democracy.
2.14 Amendments to the constitution
shall require special procedures involving
specified
majorities.
3. Principles dealing with the allocation of powers to
different levels of government
3.1 Government shall be structured at national, SPR and local levels.
3.2 At each level of government there shall be democratic
representation.
3.3 Each level of government shall have appropriate and
adequate legislative and executive powers and functions that will enable each
level to function effectively.
3.4 The powers and functions of each level of
government shall be defined in the constitution. Amendments to the constitution
which
alter the powers, boundaries, functions or institutions of regions shall
in addition to any other procedures specified in the constitution
for
constitutional amendments, also require the approval of a specified majority of
the legislatures of the SPR'S, and if the amendment
concerns specific SPR's
only, the approval of the legislatures of such SPR's will also be needed.
3.5 The powers and functions of each level of government may include
exclusive and concurrent powers, as well as the power to perform
functions for
other levels of government on an agency or delegation basis.
3.6 Each level
of government shall have fiscal powers which will be defined in the
constitution.
3.7 A Financial and Fiscal Commission, including
representatives of each of the SPR'S, shall be constituted to advise the
national
government on the distribution of financial and fiscal
resources.
3.8 Fiscal and financial allocations by the national government to
SPR governments shall be made on an equitable basis after taking
into account
the national interest, disparities within SPIES, the advice of the Financial and
Fiscal Commission, the population and
developmental needs, administrative
responsibilities and other legitimate interests of each of the SPIES.
3.9 The following criteria shall be applied in the allocation of powers to
the national government and the SPR governments:
3.9.1 General*
3.9.1.1 The level at which there is most control over the quality and
delivery of services, should be the level responsible for the
execution of the
programme or the delivery of the services.
3.9.1.2 The national
government shall not exercise its powers (exclusive or concurrent) so as to
encroach upon the territorial, functional
or institutional integrity of the
SPIES.
3.9.1.3 In the event of a dispute concerning the legislative powers
allocated by the constitution concurrently to the national and
SPR governments,
precedence shall be
given to the legislative powers of the national
government.
_____________________________________________________________________________
*In
dealing with this issue we have made extensive use of the report on
Constitutional Options and their Implications for Good Government
and a Sound
Economy prepared by a group of experts which consisted largely of South Africans
of different political persuasions,
published in March 1993 by the Consultative
Business
Movement.
_______________________________________________________________________________
3.9.1.4 Where
it is necessary for the maintenance of national
standards, the maintenance of economic unity, the maintenance of national
security or the prevention of action taken by one SPR which
is prejudicial to
the interests of another SPR or the country as whole, the constitution shall
empower the national government to
intervene through legislation or such other
steps as may be defined in the constitution.
3.9.1.5 The essential principles
of the constitution including the fundamental rights contained therein shall
apply to all organs
of the state at all levels of government.
3.9.2 National Government
3.9.2.1 Where there is necessity for South Africa to speak with one voice, or
to act as a single entity - in particular in relation
to other states - powers
should be allocated to the national government.
3.9.2.3 Where minimum standards across the nation are regarded as important
for the delivery of public services, the power to set
such standards should be
allocated to the national government.
3.9.2.4 The power to promote
inter-SPR commerce and protect the common market in respect of the mobility of
goods, services, capital
and labour, should be allocated to the national
government.
3.9.3 SPR Government
3.9.4 Concurrent
Powers
Where mutual co-operation is essential or desirable or where it is
important to guarantee equality of opportunity or access to a government
service, the powers should be allocated concurrently to the national government
and the SPR governments.
3.9.5 Residual Powers
Powers which are not specifically allocated
in the constitution to the national government or to an SPR government, shall
vest in
the national government, alternatively in the SPR governments. (This is
a fundamental issue which calls for a political
decision).
4. Asymmetry
Certain parties have made submissions to our committee that the constitution
should make provision for SPR asymmetry. Regional asymmetry
may manifest itself
in the following ways:
4.1 Geographical and demographic
asymmetry
It stands to reason that a measure of geographical and demographic
asymmetry will exist amongst SPR'S. If such asymmetry becomes
disproportionate
and creates possibilities of economic decline or disruption of inter-regional
relationships, constitutional mechanisms
could be applied to rectify the
position (eg adjustment of SPR borders on a basis of consent by the people
concerned and approval
by the respective SPR's as well as the national
legislature).
4.2 Asymmetry in respect of functions and
powers
There can be asymmetry in the allocation of powers and
functions. In the submissions to our Committee it has been suggested that
SPR's
may require different powers and functions depending on their location, the
nature and extent of the development that has taken
place in a particular SPR,
and even the composition of the population. It has been suggested that
asymmetry could be extended not
only to powers and functions, but also to
matters such as SPR citizenship, and the recognition and use of
languages.
4.3 Institutional asymmetry
There can be asymmetry in the institutions of government, ie different types
of legislatures, different electoral systems etc. There
can also be
asymmetrical institutions, ie different institutions for the accommodation and
recognition of traditional leaders, and
linguistic, cultural and religious
groups etc.
4.4 Temporal Asymmetry
SPR governments,
institutions, functions and powers may be phased in at different times.
We have not dealt with asymmetry as a principle because it is not clear to us
what the views of all the parties are on this
issue. The principles that we
have formulated are of general application and ought not to hamper a debate on
asymmetry.
- Matters
requiring the consideration of the Negotiating Council:
5.
1 Matters such as the powers, functions and boundaries of the SPR's and local
governments in the interim depend on decisions to
be taken by the Negotiating
Council in regard to the process of transition and can only be dealt with after
such decisions have been
taken.
5.2 The process of decision making with
regard to the allocation of exclusive, concurrent or residual powers
specifically to different
levels of government, is a matter requiring political
negotiation in the light of this report. The final model should be one which,
inter alia, is financially viable and conducive to effective public
administration, and which promotes national unity, legitimate
regional autonomy
and cultural diversity.
CONFIDENTIAL
THIS REPORT IS EMBARGOED UNTIL 12H00
ON FRIDAY 28
MAY 1993
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