Browsing by Author "Steytler, Nico"

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    The African Charter on democracy, elections and governance: A normative framework for analysing electoral democracy in Africa
    (University of the Western Cape, 2007) Alemu, Tikikel; Steytler, Nico; Faculty of Law
    This paper gave an insight into the novelties as well as the deficiencies of the provisions related to democratic elections and their implementation framework. It examined the potential effectiveness or otherwise of a binding treaty which is not yet enforced on the basis of past experience. In effect, it shed light on the possible measures that could be taken to guarantee its realisation and to circumvent the shortcomings in ensuring its effective implementation.
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    An analysis of the decentralisation framework provided for in the African Charter on the Values and Principles of Decentralisation, Local Governance and Local Development, 2014
    (University of the Western Cape, 2016) Ziswa, Melissa Nyaradzo Sibongile; Chigwata, Tinashe; Steytler, Nico
    In 2014, the African Union (AU) adopted the African Charter on the Values and Principles of Decentralisation, Local Governance and Local Development (the African Charter on Decentralisation). The Charter is a first of its kind to provide a decentralisation framework for local government on the African continent. It seeks to use local government as a vehicle for improving the livelihoods of people on the African continent. Member States of the AU will only be bound by the African Charter on Decentralisation once they have ratified it. The actual impact of the Charter to improve the livelihood of people on the African continent is unknown. This research paper provides a critical analysis of the Charter in order to establish its potential. The analysis is undertaken against the background of the international literature on decentralisation and 'best' practices on local government.
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    An analysis of the decentralisation framework provided for in the African Charter on the Values and Principles of Decentralisation, Local Governance and Local Development, 2014
    (University of the Western Cape, 2016) Ziswa, Melissa Nyaradzo Sibongile; Chigwata, Tinashe; Steytler, Nico
    In 2014, the African Union (AU) adopted the African Charter on the Values and Principles of Decentralisation, Local Governance and Local Development (the African Charter on Decentralisation). The Charter is a first of its kind to provide a decentralisation framework for local government on the African continent. It seeks to use local government as a vehicle for improving the livelihoods of people on the African continent. Member States of the AU will only be bound by the African Charter on Decentralisation once they have ratified it. The actual impact of the Charter to improve the livelihood of people on the African continent is unknown. This research paper provides a critical analysis of the Charter in order to establish its potential. The analysis is undertaken against the background of the international literature on decentralisation and 'best' practices on local government.
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    An Assessment of South Africa’s Intergovernmental Relations System as a Response to the Covid-19 Pandemic
    (University of the Western Cape, 2024) Mzingelwa, Andisiwe; Steytler, Nico; Stevens, Curtly
    South Africa was among the numerous nations impacted by the Covid-19 pandemic. The health systems in every nation were overhauled because of this pandemic, which claimed countless lives. The pandemic in South Africa, however, also had a direct impact on the system of multilevel governance, since it necessitated cooperation between the national, provincial, and local governments, particularly in disaster management. According to schedule 4 (Part A) of the 1996 Constitution, disaster management in South Africa is a concurrent function between the three spheres of government. The intergovernmental relations (IGR) structures were put in place for the concurrent functions, disaster management being one of them, since the three spheres could only collaborate through the IGR structures to manage the Covid-19 pandemic.
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    Confronting the state of local government: the 2013 Constitutional Court decisions
    (Juta, 2016) de Visser, Jaap; Steytler, Nico
    In September 2014 the then Minister of Cooperative Governance and Traditional Affairs, Pravin Gordhan, divided municipalities into three groups: a third of the municipalities was carrying out their tasks adequately, a third was just managing, and the last third was ‘frankly dysfunctional’ because of poor governance, inadequate financial management, and poor accountability mechanisms.1 What this analysis starkly illustrates is that local government cannot be seen as a uniform institution, operating in the same manner, facing the same challenges. Most, but not all metropolitan municipalities are highly functional and the same applies to the so-called ‘secondary cities’. Then there are highly dysfunctional rural municipalities but also rural municipalities that perform well. Yet a uniform system of law applies to them all.
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    Constitution-Building in Africa
    (Community Law Centre, University of the Western Cape, 2015) de Visser, Jaap; Steytler, Nico; Powell, Derek; Durojaye, Ebenezer
    The process towards the adoption of a constitution is determined by the context in which the constitution is written. It navigates such issues as political engagement, keeping politically agreed timelines, ensuring the inclusion of a variety of constituencies and groups, the use of domestic and foreign technical expertise, and ensuring legitimacy and public awareness. This book examines examples of constitution-making processes around the continent and how they attempt(ed) to accommodate the many interests at play. As such, the chapters offer a range of different constitution-making narratives. In Zimbabwe, the Global Political Agreement (GPA) provided for a parliamentary select committee, co-chaired by the three main political parties, to lead the drafting of a constitutional text. The process included public hearings and a referendum. In the case of Malawi, all of its five constitutional review projects were initiated by the presidential appointment of a constitutional review commission or technical drafting committee. The drafting of the country’s 1966 Constitution took place primarily under the auspices of the ruling Malawi Congress Party; the 1995 constitutional review process was led by a National Consultative Council and consisted of various consultative processes. While this review was markedly more inclusive, it still lacked legitimacy. The making of Kenya’s 2010 Constitution was, by all accounts, impressive in its inclusivity. With the horrors of the 2007/2008 post-election violence engraved in collective memory, and the experience of the impressive consultation, led by the Ghai Commission, still fresh in mind, Kenya’s Constitution was drafted on the basis of extensive consultation.
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    The constitutional conversation between the federal structure and a bill of rights
    (Institute of Federalism, University of Fribourg, 2015-01) Steytler, Nico
    It is often assumed that a constitution speaks with one voice and that all parts are in harmony with each other. Although different provisions can be given higher status than others (as reflected in the more arduous amendment procedures concerning, for example, national values), the general assump-tion is that they are all of equal value. Where provisions are seemingly at odds with one another, such as cases where there are two rights in a bill of rights lead to conflicting outcomes, the deft in-terpreter can nevertheless produce a balanced or harmonious end-result. While this approach is nec-essary for a purposive interpretation of a constitution, it blocks from view a different reality in which parts of the constitution are in constant conversation with each other. A particular instance of this is the conversation between the federal structure and a bill of rights. Tuning into this conversation is not only pertinent from a theoretical perspective but also has practi-cal consequences. The Community Law Centre at the University of the Western Cape in South Afri-ca, to which I have been attached for the past two decades, has a dual focus: multi-level government and human rights. We have organised ourselves into projects focusing, on the one hand, on local government and federalism, and, on the other, socio-economic rights, gender rights, children’s rights and prisoners’ rights. This dual focus was not by design so much as historical accident. The first director of the Centre, Advocate Dullah Omar, was a leading legal activist in the African National Congress who eventually became the first Minister of Justice in the Mandela cabinet and had played a strong hand in the drafting of the interim Constitution in 1993; his focus was on the structures of government. Other staff members, such as Brigitte Mabandla (who, in the Mbeki cabinet, also be-came a Minister of Justice), were more interested in the Bill of Rights, in particular the rights of women and children. Since then there has been the split in the Centre between the structuralists (fo-cusing on multi-level government) and the normativists (concerned with human rights).
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    The constitutional conversation between the federal structure and a bill of rights
    (Community Law Centre, University of the Western Cape, 2015-01) Steytler, Nico
    It is often assumed that a constitution speaks with one voice and that all parts are in harmony with each other. Although different provisions can be given higher status than others (as reflected in the more arduous amendment procedures concerning, for example, national values), the general assump-tion is that they are all of equal value. Where provisions are seemingly at odds with one another, such as cases where there are two rights in a bill of rights lead to conflicting outcomes, the deft in-terpreter can nevertheless produce a balanced or harmonious end-result. While this approach is nec-essary for a purposive interpretation of a constitution, it blocks from view a different reality in which parts of the constitution are in constant conversation with each other. A particular instance of this is the conversation between the federal structure and a bill of rights. Tuning into this conversation is not only pertinent from a theoretical perspective but also has practi-cal consequences. The Community Law Centre at the University of the Western Cape in South Afri-ca, to which I have been attached for the past two decades, has a dual focus: multi-level government and human rights. We have organised ourselves into projects focusing, on the one hand, on local government and federalism, and, on the other, socio-economic rights, gender rights, children’s rights and prisoners’ rights. This dual focus was not by design so much as historical accident. The first director of the Centre, Advocate Dullah Omar, was a leading legal activist in the African National Congress who eventually became the first Minister of Justice in the Mandela cabinet and had played a strong hand in the drafting of the interim Constitution in 1993; his focus was on the structures of government. Other staff members, such as Brigitte Mabandla (who, in the Mbeki cabinet, also be-came a Minister of Justice), were more interested in the Bill of Rights, in particular the rights of women and children. Since then there has been the split in the Centre between the structuralists (fo-cusing on multi-level government) and the normativists (concerned with human rights).
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    The Constitutional Court of South Africa: Reinforcing an hourglass system of multi-level government
    (University of Toronto Press, 2017) Steytler, Nico
    “The supremacy of the constitution and the rule of law” are two foundational values of South Africa’s 1996 Constitution (s. 1(c)). An independent judiciary is thus set to play a major role in interpreting and enforcing the Constitution. With some significant federal elements in the Constitution, such as establishing provincial and local orders of government, the courts, with the Constitutional Court at the apex, are bound to give shape and texture to this system of government. Since 1995, the Constitutional Court as well as the Supreme Court of Appeal and High Court have asserted the supremacy of the Constitution and the separation of powers, establishing a jurisprudence that gives effect to the principle of limited government. However, in interpreting the federal arrangements, the Constitutional Court has not given full effect to the self-rule elements of provincial government. Instead, it has more often enforced local government’s constitutional “right to govern, on its own initiative, the local government affairs of its community” (s. 151(3)). Furthermore, while soft on the substantive content of provincial self-rule, it has scrupulously policed compliance with the procedural rules of intergovernmental relations. The Court’s jurisprudence has given further credence to the hourglass model of multi-level government; provinces are squeezed thin from the top by a dominant national government and from below by powerful metropolitan governments.
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    Decentralisation and Constitutionalism in Africa: Concepts, Conflicts and Challenges
    (Fourth Stellenbosch annual seminar on constitutionalism in Africa (SASCA), 2016-09-07) Steytler, Nico
    A central quest in post-Cold War Africa has been to bring the Leviathan – the untrammelled ruler – to heel through constitutionalism, and, to a lesser extent, also decentralisation. 1 The unbridled power of the imperial presidency, the one party state, and military regimes, has resulted, contrary to their projected justification of unifying and developing the new ‘nation’ bequeathed by the departing colonisers 30 years before, in underdevelopment, marginalisation of minorities, and in many countries fragility and conflict. When the proxy wars and the propping up of dictators, petty tyrants and kleptocrats came to an end, a vision and hope of governance in terms of constitutionalism and decentralisation emerged in some, if not most, parts of the continent; it would bring peace, democracy, good governance and development. This vision of decentralisation and constitutionalism has, however, only been partially realised over the past 25 years. The story of the Arab Spring of 2011 is similar in hope and outcome. Within this context, this conference seeks to examine the relationship between decentralisation and constitutionalism, giving rise to three interrelated questions: First, has the quest for decentralisation been dependent on a legal-political environment of constitutionalism? Put differently and prospectively, are any efforts towards decentralisation doomed in the absence or partial realisation of constitutionalism in a particular country? Secondly, is there a mutually supporting relationship between decentralisation and constitutionalism, where the former bolsters and buttresses the latter? Thirdly, in the absence or partial realisation of constitutionalism, has the quest for decentralisation been a vehicle for the building of constitutionalism? Or, more prospectively, does decentralisation hold the potential as a governance strategy, among others, that may advance the vision of constitutionalism.
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    Decentralisation as a tool in managing the ethnic question: a case study of Uganda
    (University of the Western Cape, 2011) Oloya, Charlotte; Steytler, Nico
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    Decentralisation as a tool in managing the ethnic question: a case study of Uganda
    (University of the Western Cape, 2011) Oloya, Charlotte; Steytler, Nico
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    Defining local government powers and functions
    (Sabinet, 2007) Steytler, Nico; Fessha, Yonatan Tesfaye
    The functional areas of provincial and local government competency are listed in Schedules 4 and 5 of the Constitution, with those appearing in part A of each schedule confined to provincial government and those in part B of each schedule to local government.1 The schedules list functional areas without providing any detailed definitions of them. Considerable overlap between the functional areas assigned to these two spheres of government leads, in practice, to an overlap of powers and functions. Overlap is distinct from ‘concurrency’. Within the meaning of the Constitution, concurrency of powers refers to the existence of the same powers over the same functional areas, as is the case for example with national and provincial competencies over Schedule 4 functional areas. Overlap of functions, on the other hand, occurs where more than one level of government has authority (be it legislative, executive, or both) over the same functional area. The constitutional allocation of ‘original powers’ to local government produces at least two areas of overlap.2 The first type of overlap can be referred to as supervisory overlap. A provincial government has regulatory and monitoring powers over Schedules 4B and 5B matters in terms of ss 155(6)(a) and 155(7) of the Constitution. Thus, in respect of every Schedule 4B and 5B functional area, provincial government has power, albeit limited, of supervision. The question then arises as to the extent and ambit of such supervisory powers. The other type of overlap arises from an overlap between matters listed in Schedules 4A and 5A and those in Schedules 4B and 5B. In this case, there is no clear definition of the functional areas belonging to each sphere of government, resulting in a lack of clarity about the cut-off points between functional areas. For example, both provincial and local government have authority over health care services, with the only definitional distinction being made through the use of the qualifying term ‘municipal’. Due to this overlap there is a degree of confusion about who does what. This article is confined to the issues of overlap flowing from the latter type of case. The focus is on the overlap between provincial and local government powers that, unlike the intended concurrent jurisdiction that the national and provincial governments have over Schedule 4 matters, is unintended although not unforeseen. The aim of this contribution is threefold: (a) to determine the nature and extent of overlap between provincial and local government powers and functions as well as problems flowing from such overlap; (b) to examine how the overlap is being dealt with by stakeholders; and (c) to develop a systematic approach to defining provincial and local government powers.
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    District municipalities : giving effect to shared authority in local government
    (Law, Democracy & Development, 2003-01) Steytler, Nico
    A new feature of local government outside metropolitan areas is the establishment of 47 district municipalities in December 2000. They share legislative and administrative powers with local municipalities in their area. Overlapping local government structures is not unknown in South Africa or elsewhere in the world. During South Africa's interim phase of local government transformation between 1995 and 2000, a two tier metropolitan system was established where both the metropolitan councils and a number of metropolitan sub-councils enjoyed jurisdiction in the same metropolitan area. Two-tier local government is also a feature in countries such as the United States, India, Germany and Spain.
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    District-local municipal relations: The challenges to cooperative government
    (Community Law Centre, University of the Western Cape, 2005) Steytler, Nico; Jordan, Janis
    Outside of metropolitan areas, local government is shared by district and local municipalities; the 47 district municipalities and 231 local municipalities share legislative and administrative powers over the same geographical area. This overlapping jurisdiction was bound to raise questions regarding its functionality. The system of local government is premised on cooperation and a productive atmosphere between district and local municipalities. It has been noted by the National Assembly Portfolio Committee on Local Government that the relationship between district and local municipalities varies from “cordial and cooperative to conflictual and unproductive”.1 The Western Cape branch of the South African Association for Local Government (SALGA) noted in their minutes2 that there is “an unwillingness to interact in a cooperative way” among district and local councils. A member of the Free State Provincial Department of Local Government3 noted that relations between the district and local municipalities counted among the reasons for the bad state of local government in the province. These examples illustrate the urgent need to address the state of relationships between district and local institutions. This question is what causes conflict and ultimate unproductiveness? Having identified key areas of conflict, the next question to be addressed is: how are these conflicts managed? This question is pertinent in light of the Intergovernmental Relations Framework Act4 (IRFA) which requires the establishment of District Intergovernmental Forums (DIFs) aimed at managing such relations. The object of this study is thus the identification of the challenges that DIFs must meet. This paper must be read with the “Status quo report on intergovernmental relations regarding local government”, prepared by the Local Government Project, which focuses on the incidence and functioning of intergovernmental forums at district level prior to the IRPA coming into operation
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    District-local municipal relations: The challenges to cooperative government
    (Community Law Centre, University of the Western Cape, 2005) Steytler, Nico; Jordan, Janis
    Outside of metropolitan areas, local government is shared by district and local municipalities; the 47 district municipalities and 231 local municipalities share legislative and administrative powers over the same geographical area. This overlapping jurisdiction was bound to raise questions regarding its functionality. The system of local government is premised on cooperation and a productive atmosphere between district and local municipalities. It has been noted by the National Assembly Portfolio Committee on Local Government that the relationship between district and local municipalities varies from “cordial and cooperative to conflictual and unproductive”.1 The Western Cape branch of the South African Association for Local Government (SALGA) noted in their minutes2 that there is “an unwillingness to interact in a cooperative way” among district and local councils. A member of the Free State Provincial Department of Local Government3 noted that relations between the district and local municipalities counted among the reasons for the bad state of local government in the province. These examples illustrate the urgent need to address the state of relationships between district and local institutions. This question is what causes conflict and ultimate unproductiveness? Having identified key areas of conflict, the next question to be addressed is: how are these conflicts managed? This question is pertinent in light of the Intergovernmental Relations Framework Act4 (IRFA) which requires the establishment of District Intergovernmental Forums (DIFs) aimed at managing such relations. The object of this study is thus the identification of the challenges that DIFs must meet. This paper must be read with the “Status quo report on intergovernmental relations regarding local government”, prepared by the Local Government Project, which focuses on the incidence and functioning of intergovernmental forums at district level prior to the IRPA coming into operation
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    Electing councillors: A guide to municipal elections
    (University of the Western Cape, 2016) de Visser, Jaap; Steytler, Nico
    The electoral system for local government combines ward elections with proportional representation. It is regulated in at least four different statutes, the Electoral Act 73 of 1998, the Local Government: Municipal Structures Act 117 of 1998, the Local Government: Municipal Electoral Act 27 of 2000 and the Local Government: Municipal Systems Act 32 of 2000. More rules can be found in various regulations under these Acts. The result is an advanced but complex electoral system. This manual outlines the main features of the system in an accessible manner. The objective is to assist anyone who participates in the election or assists in making it happen. This includes voting officials, government officials, councillors, candidates, political parties and members of civil society. The manual also addresses the rules for filling vacancies in between elections. While the manual is comprehensive. it does not address every detail of the electoral system or every conceivable interpretation of the electoral laws. Further detail can be found in the various acts and regulations or obtained from the Independent Electoral Commission.
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    The emerging role of metropolitan cities in federations
    (Forum of Federations, 2001) Steytler, Nico
    City-regions or large metropolitan cities are a rapidly growing phenomenon in developing countries. They are also seen as a key mechanism to the development and growth trajectories of those countries, particularly in the age of globalisation. However, metropolitan governments are often not geared towards and enabled to perform this function due to political and structural constraints. These issues are also germane to metropolitan cities located in federations. The challenge facing federations is to adapt their legal/constitutional architecture and practice of intergovernmental relations to ensure that metropolitan cities can play their developmental role. The principles and practices of federalism are uniquely suited to accommodate the emerging role of metropolitan cities.