At the time this article was written Gary O'Brien was Principal Clerk, Committees of the Senate. In November 1996 he visited South Africa along with Senator John Stewart. They attended a workshop on the implementation of the National Council of the Provinces.

The new South African upper house, called the National Council of the Provinces (NCOP) came into existence earlier this year. It is the product of much thought, international comparative study, and negotiation among political parties and regional, tribal and linguistic interests. It is a key element of the new Constitution of the Republic of South Aftrica which was adopted by the Constitutional Assembly in May 1996. The National Council cf the Provinces has been given a clear constitutional goal, to represent the provinces to ensure that provincial interests are taken into account in the national sphere of government. The success of the new Constitution and whether or not South Africa will become the inclusive democracy it wants to be will greatly depend on the effectiveness of this new upper chamber.

In 1938 Edward Sait observed that legislatures usually evolve without specific previously-agreed purposes or goals. Their development said Sait, is driven by "organizational imperatives". "When we examine political institutions one after another they seem to have been erected, almost like coral reefs, without conscious design. There has been no pre-arranged plan, no architectual drawings and blue-prints; man has carried out the purposes of nature we might say, acting blindly in response to her obscure demands".¹ The new South African Upper House has developed exactly opposite to the 'unconscious design' model described by Sait.

Institutional Design

Traditionally second chambers in bicameral parliaments have two general functions: 1) to revise legislation often from a technical or constitutional perspective sent up from the more broadly elected democratic house; and 2) to act as a check on the executive and the lower house to protect against the abuse of political power and what de Tocqueville and John Stuart Mill called "the tyranny of the majority". In federal states, a third function is added: to represent in the legislative process the diversity of the country and safeguard the interests of the provinces or states, thus preventing the centralization of decision-making.

South Africa as a state entity has had a Senate since the 1908 Union of South Africa.² However, given the extent of white domination and the lack of popular representation in or legitimacy of the previous South Afncan regime, there is very little of the unreformed Senate which has carried over into the new Constitution, not even the place of meeting. The institutional design of the National Council of the Provinces clearly does not effectively incorporate the first two general functions of second chambers. The framers have not accepted making it a chamber of sober-second thought along the lines of the House of Lords for fear that it may become a harbour of entrenched interests. As the Minister res:Donsible for Constitutional Development remarked, the National Council of the Provinces should not be questioning the drinking habits of the lower house.³ Pursuant to Section 42(3) of the Constitution, it is the National Assembly which is "to represent the people and to Ensure government by the people..." The executive is primarily accountable to the lower, not the upper, house. The National Council of the Provinces will have no say in ordinary constitutional amendments, such as those dealing with the Public Protector or National Defence, nor in the selection of the President of the Republic. These tasks belong exclusively to the National Assembly. Likewise, there is no wish to create a system of checks and balances as this, it is believed, could lead to inefficiencies and conflict and would be a threat to majority rule. In accordance with Section 75, National Council of the Provinces disagreement to legislation which does not affect the provinces may be overridden by the National Assembly by a simple majority vote.

It is the third general function of second chambers, the federal principle, upon which the National Council of the Provinces is to be focused. The structure of South Aftrica's federalism is to be much different from that practiced in North America. As a legal advisor to the Premier of the Western Cape Province, has stated: "We have embarked on the road of cooperative federalism similar to the German model, where the focus is on cooperation, which does not mean cooption, in contrast with competitive federalism as found in the U.S.A."⁴

The drafters of the new South Africa Constitution have clearly been drawn to the German system of bicameralism and its "horizontal". division of powers . They have been extremely impressed with Germany's Basic Law which embraces the goal of cooperative government and which identifies the Bundesrat or upper chamber as the specific organ through which the Land or State governments are to participate in federal decisions.

The South Aftricans have rejected the concept of federalism whereby the major powers of governance are divided between central and provincial institutions believing that this arrangement will lead to wasteful court challenges to determine which level has legislative jurisdiction in cases which are not clear. Instead they have accepted the principle of recognizing that both levels of government have a stake in social legislation and that they must cooperate with each other as is done in Germany.

Chapter 3 of the Constitution is entitled "Cooperative Government" Section 41 (1) provides that "All spheres of government and all organs of state within each sphere must ... (e) respect the constitutional status, institutions, powers and functions of government in the other spheres; (f) not assume any power or function except those conferred on them in the terms of the Constitution. (g) exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and (h) cooperate with one another in mutual trust and good faith...."

The consensus model of federalism which South Africa is attempting to create is based on a constitutional system of shared powers. Schedule 4 lists 33 areas of concurrent powers shared by the national government and the 9 provinces. These include agriculture, indigenous forests, health services, education, the environment, housing, consumer protection, the police, language policy, industrial promotion, cultural matters, public trimsportation and trade. It is true that a number of federal constitutions provide for some shared powers, such as the Canadian Constitution where agriculture and immigration are identified as concurrent powers, but few countries have as extensive a list of horizontal powers. Tree National Council of the Provinces is the principal institution which will speak for the provinces when legislation is proposed affecting the areas of concurrent powers.

Pursuant to Section 76, if the National Assembly passes a bill which falls under the functional areas of concurrent national and provincial legislative competence listed in Schedule 4, the National Council of the Provinces has a suspensive veto power which can only be overridden by a iwo thirds majority in the lower house. Voting is as follows: each of the nine provinces has a single delegation consisting of ten delegates. Each province has one vote which is cast on behalf of the province by the head of the delegation. The supporting vote of at least five of the provinces is required in respect of any Section 76 matter before the National Council of the Provinces.

As the voice of the provinces, the National Council of the Provinces will have a direct structural relationship with them. Unlike the German Bundesrat which speaks only for the Lander executives, the National Council of the Provinces is to represent both the provincial executive (the Premier of the province is designated in the Constitution as head of each provincial delegation), and the members composing the provincial legislature. Political parties represented in the provincial legislature are entitled to delegates in the province's delegation in accordance with a specific formula described in Schedule 3. The number of delegates in a provincial delegation will be determined by multiplying the number of seats the party holds in the provincial legislature by ten and dividing the number of seats in the legislature plus one. However, on matters affecting the provinces, the provincial delegates are to vote as a block.

An Assessment

Canadian Senator John Stewart in his address to the members of the South African National Council of the Provinces in November 1996 noted that when building models of governance "the shoe should be cut to fit the foot"^5. It is understandable that federalism as a form of government would be attractive to a country like South Africa. As the following table providing a social and economic profile of the various provinces shows, the environment of the South African political system appears quite compatible with federalism. It is also abvious that federalism can assist South Africa in oecoming an inclusive democracy.

A Social and Economic Profile of South Africa's Provinces
Province	Population	Area	% of GDP	Languages
Gauteng	7,027,254 (16.8%)	1.5%	37%	Afrikaans(18%); IsiZulu (17%); English (14%)
Eastern Cape	6,978,254 (16.4%)	13.9%	7.4%	IsiXhosa (85%); Afrikaans (9%); English (3%)
Northern Transvaal (Northern Province)	5,431,473 (12.6%)	8.9%	3.1%	Sesotho (56%); Shangaan (22%)
Western Cape	3,756,845 (8.9%)	10.6%	13.2%	Afrikaans (63%); English (20%); IsiXhosa (16%)
North West	3,704,667 (8.6%)	9.7%	7.2%	Setswana (63%); IsiXhosa (14%); Sesotho (8%)
Eastern Transvaal (Mpumalanga)	3,014,578 (6.7%)	6.7%	8.3%	SiSiwate (40%); IsiZulu (28%); Afrikaans (9%)
Orange Free State (Free State)	2,918,266 (6.9%)	10.6%	7.2%	Sesotho (56%); Afrikaans (14%); IsiXhosa (9%)
KwaZulu Natal	8,966,860 (21%)	7.5%	14.5%	IsiZulu (80%); English (15%); Afrikaans (2%)
Northern Cape	785,604 (1.9%)	29.7%	2.3%	Afrikaans (65%); Setswana (22%); IsiXhosa (4%)
Sources: South Africa Yearbook, 1995, Second Edition (Pretoria: Government Printer) and South Africa 1995 (South Africa Foundation)

 

What is not clear, and this of course is the great challenge facing its members, is whether the National Council of the Provinces can effectively represent and defend the interests of the provinces and prevent the centralization of decision-making. In a country like Canada, this task is left primarily to the executives of the provinces themselves. In South Africa this will be the responsibility of the National Council of the Provinces and much attention will be focused on its ability to effectively deal with Section 76 legislation. There appears !:o be obstacles which may stand in its way. The National Council of the Provinces does not share the same powers as the German Bundesrat. The Bundesrat has an absolute veto on constitutional amendments and all bills affecting is-ander interests, including fiscal matters, which are called "consent bills" and which are in practice about 50% of all bills dealt with.b The South African Constitution excludes money bills from those considered as ordinary bills affecting the provinces. The National Assembly can override any disagreement on money bills by a simple majority. Also, it is not clear who decides if a bill falls under Section 76 (matters affecting the provinces) or Section 75 (matters not affecting the provinces). As well, because of the political conditions existing now in South Africa, it is not expected that the National Council of the Provinces will seriously challenge the will of the lower house: presently, the African National Congress controls the governments of seven of the nine provinces, as well as a majority in the National Assembly.

Nothwithstanding these obstacles, the model of bicameralism South Africa has created is an exciting one. It attempts to create a new institutional relationship between the second chamber and the provincial governments and legislatures and to bring their talents and interests into the national decision-making process. Observers will be watching closely in the months ahead to see how well it succeeds.

Notes

1. Edward Sail, Political Institutions: A Preface, New York & London, ikppelton-Century Co., 1938.

2. T.R.H. Davenport, South Africa: A Modern History, University of Toronto Press, 1977, p. 166.

3. Workshop on the Implementation of the National Council of the Provinces, Proceedings, Capetown, November 11-13, 1996.

4. Dirk Brand, "The National Council of the Provinces: Constitutional Provisions and Principles", November, 1996, p. 1.

5. Workshop on the Implementation of the National Council of the Provinces, Proceedings, Capetown, November 11-13, 1996.

6. See Comparative Study of Second Chambers of Parliament in Selected Countries, National Democratic Institute for International Affairs, October, 1996.