AU Decentralisation Charter: ratification

Meeting report

The Chairperson welcomed Members to the first Committee meeting of the third quarter after constituency work. As Members of Parliament from the National Council of Provinces, they had visited their provinces to engage with local structures and communities to gain more insight about building the necessary municipal and provincial infrastructure considering the challenges faced there.

African Union Charter on Values & Principles of Decentralization, Local Governance and Local Development for Ratification
Dr Kevin Naidoo, COGTA Deputy Director-General: Policy, Governance and Administration, He introduced the COGTA team: Mr Wayne McComans COGTA Chief Director: Municipal Governance and Structures; Mr Tshepo Khasi Senior Manager: Power, Functions, and Intervention Support and Ms T Thembani Senior Manager: International Relations.

Dr Naidoo appealed to the Committee to support the ratification of Charter in terms of section 231(2) of the Constitution. The purpose of the Decentralization Charter was to assist AU Member States in developing their constitutional and legislative prescripts on decentralizing powers and functions from high-ranking spheres of government to regional and sub-regional areas within a country.

Dr Naidoo gave a background to the AU Charter and its critical contribution to decentralization in governance. The Summit that led to the adoption of the Decentralisation Charter had recognised that:
1. Decentralisation serves as a powerful catalyst for equitable development and improved governance. Local governance fosters a sense of ownership and accountability among citizens, thereby enhancing overall social and economic progress.
2. Local Governance Best Practice: devolving decision-making powers to local governments can lead to more effective service delivery, citizen engagement, and sustainable development.
3. Local Development Initiatives were seen as vital drivers of economic growth and social cohesion.
4. Capacity Building and Resources Allocation  were essential components to empower local authorities effectively.
5. Monitoring and accountability mechanisms to assess progress, identify challenges, and adjust strategies accordingly was recognized as a cornerstone for successful decentralisation efforts.
6. Regional Cooperation: Knowledge-sharing and collaboration among AU member states needed

The COGTA Minister had signed the Decentralization Charter in August 2021. Thereafter South Africa obtained legal opinions from the Office of the Chief State Law Advisor in the Department of Justice and Constitutional Development and the Department of International Relations and Cooperation that indicated the Decentralization Charter is compliant with the Constitution. Currently, 17 countries have signed the Decentralization Charter and 9 countries have ratified it. As soon as the 15th Member State has approved it, the Decentralization Charter would come into effect for all the signatory Member States.

The briefing gave an overview of the 26 articles of the Decentralization Charter.

Article 1 to 4 of Chapter 1: provides the key concepts, objectives, scope, and core values of the Charter as well as promotes, protects and act as a catalyst for Decentralization, local governance, and local development in Africa.

Article 5 of Chapter 2 (Local Governance): state parties shall enact domestic laws and recognize the different levels of government with the mandate to exercise their competencies through defined regulatory mechanisms

Article 6 (Subsidiarity): states that national and central government shall create enabling conditions for decision-making, policy and programme initiation, adoption, and implementation to take place at lower levels of government.

Article 7 (Resource Mobilization and Local Economic Development): states that national and central government shall adopt legislation, measures and establish relevant mechanisms to give local governments the authority to mobilise and disburse resources at the local level for local economic development.

Article 8 (Diversity and Differentiation): states that national, central, and local governments may establish consultative mechanisms informed by local conditions to make proposals.

Article 9 (Legality): states that local governments shall adopt by-laws, develop, and implement local programmes, projects in a manner consistent with national laws and regulations.

Article 10 (Inclusion, Equity and Equality): states that local governments shall discharge their responsibilities and duties in a manner that it is inclusive, equitable and gives equal treatment to all local residents.

Article 11 (Shared Responsibility and Complementarity): states that local governments promote and improve the livelihoods and environment of local communities.

Article 12 (Participation): states that national legislation shall guarantee the rights and outline responsibilities of citizens to participate in public life at the local level.

Article 13 (Representation): states that central governments shall establish innovative measures and appropriate mechanisms to ensure the full participation of eligible citizens including specific measures for the representation of women and marginalised groups in local government elections within the framework of national legislation.

Article 14 (Transparency, Accountability and Ethical Behaviour): states that measures for the promotion of transparency and accountability by local governments shall be clearly outlined in national legislation.

Article 15 (Mainstreaming Gender, Youth and Disability): states that local governments shall integrate gender, youth, and disability issues in the overall process of formulating policy, planning development, and providing services.

Article 16 (Efficiency): states that national legislation shall be adopted to empower local governments to determine and manage the organization of local public administration within a common national framework of standards.

Article 17 (Solidarity, Cooperation and Partnership): states that local governments may enter into appropriate partnerships with non-African local governments to promote cooperation.

Article 18 of Chapter 3 (Follow-up Mechanisms): Commit to create favourable conditions for dissemination.

Article 19 (Reporting): states that state Parties shall, from the date the Charter comes into force, submit to the Commission, every three years, a Report to the Commission on the legislative or other measures taken with a view to giving effect to the principles and commitments of this Charter.

Article 20 (Recognition, Award System and Commemoration): the Commission shall promote innovative experiences and institute a system of awards for innovation in decentralisation, local governance, and local development.

Article 21-26 of Chapter 4: the provisions of the Charter shall not be interpreted in a manner that is inconsistent with the relevant principles of international law, including international customary law. Any dispute to this Charter shall be amicably resolved through direct negotiations between the State Parties concerned.

The Charter implementation plan is guided by Chapter 3 through implementation at individual State level and implementation at AU Commission level. The implementation at individual State level focused on the local government level which requires that local government shall equally be responsible and accountable to their local population for the implementation of the objectives of this Chapter as well as national government level which compels State Parties to adopt legislative, executive, and administrative measures to align national laws and regulations to the objectives of this Charter.

The implementation at Commission level focused on the regional level in accordance with their constitutive instruments, regional economies shall encourage Member States to ratify, accede, implement, and monitor the Charter as well as at the continental level to ensure and facilitate the implementation of this Charter. The Commission shall develop guidelines for its implementation.

Discussion
The Chairperson thanked Dr Naidoo for the informative presentation

Mr C Smit (DA) asked about the contradiction between the AU Charter and the District Development Model (DDM). How does it relate to the AU Charter? This is the reason the DA has been against the DDM due to the contradictory general practices throughout the continent.

Ms S Shaikh (ANC) acknowledged the importance of the AU Charter. However, as the AU Charter was adopted in 2014 why is it that South Africa wants to ratify it only now? What are the implications for South Africa as there are various principles of the AU Charter that relate to the constitutional framework as well as its legislation? Secondly, how will the country benefit through this AU Charter? She said she supported of the ratification of the AU Charter.

The Chairperson pointed out that the implementation of the terms of the AU Charter is already being executed in South Africa such as legislation dealing with the decentralization of governance, intergovernmental relations, cooperation between different spheres of government, a series of legislation on local government, and municipalities passing bylaws. South Africa has embraced the values and principles from the AU Charter. However, there are two critiques of the AU Charter. Firstly, the majority of African countries are governed through the traditional authority sector but the AU Charter does not cover relations between local government and traditional authorities. Please specify how local government should relate to local authorities? The second critique is about local autonomy. Although he does not agree with Mr Smit due to political reasons, he asked for a response to Mr Smit's concerns about local autonomy. The AU Charter does not address local autonomy and there is no protection of powers and functions of local government. He asked for a response to this whether it relates to intervention and supervision in the local government space. However, besides that, the AU Charter has the essence of a South African context as it covers the areas that are broadly implemented in South Africa.

COGTA response
On the delay in the ratification of the AU Charter, Mr Tshepo Khasi, COGTA Senior Manager: Power, Functions and Intervention Support, replied that there was confusion between COGTA and Department of International Relations and Cooperation (DIRCO) on which was the lead department as it is known that DIRCO focuses on coordinating South Africa’s international relations. This misunderstanding between the departments decelerated the ratification process. After negotiations with DIRCO on this, COGTA was allowed to proceed with the process.

Mr Khasi accepted that there was a oversight in the involvement of the stakeholders being solely based on regional governance such as local as well as provincial government in the AU Charter. COGTA is open to the Select Committee suggestions and recommendations for the amendment of the AU Charter.

Mr Wayne McComans COGTA Chief Director: Municipal Governance & Structures, stated that it was important to define the role of the DDM. It is a system that sought to coordinate how government conducts service delivery from the planning perspective between different spheres of government. The purpose of DDM was not to change the system of governance as it still maintains the planning responsibility in terms of the legislation. On the coordination of the three spheres of governance, the DDM aims to achieve an inclusive relationship between the different levels of governance with planning efficiency. The relationship then coheres with the principles and values of the AU Charter which aligns with the DDM.

Dr Naidoo replied that there was an AU African Charter on Democracy, Elections and Governance dating back to around 2004 that dealt with traditional leadership. The point made by Mr Khasi on traditional leadership could still be amplified in the AU Charter. It has been included in previous AU Charters on request by COGTA.

On the implications of the AU Charter for South Africa, Dr Naidoo noted the engagement he had with other stakeholders on the Continent. He believes that as a country, the state is leading on local government policy and legislative development. Both the Chairperson and himself had cited South African legislation on demarcation, local government structures as well as on financial management. There is a lot to offer to the rest of the continent. Once the AU Charter is ratified and deposited, it will prompt collaboration with other states in the policy domain.

On the lack of local autonomy provisions, Dr Naidoo noted the AU Charter definition: "Decentralization means the transfer of power, responsibilities, capacities and resources from national to subnational levels of government with the aim of strengthening the ability of the latter to both foster people's participation and the delivery of quality services". The AU Charter’s elements of local autonomy and devolution of powers relates to the principle of decentralization. Once the AU Charter has been ratified, there is a reporting process required every three years, where appropriate measures to effect local autonomy would be addressed in the reports required by the AU Charter.

Further discussion
Mr Smit replied that Mr McComans has contradicted himself about the DDM being aligned with the AU Charter in the efficient coordination of the different spheres of government in the DDM. The DDM centralizes certain functions and specifically the budget. The DDM does not relate closely to the people on the ground but prompts central control from the district to its municipalities and allows for dictation from national government. Therefore the DDM contradicts AU Charter principles.

The Chairperson responded to Mr Smit’s remarks saying the purpose of the briefing is to receive a COGTA presentation to ratify the AU Charter on decentralization in local governance and local development. It does not necessarily focus on the DDM. As there are differing views on the DDM, it might take the entire day to engage on the DDM. He proposed that the Select Committee can perhaps have a meeting later on this matter and engage further. He suggested that the Members stay within the agenda of the AU Charter ratification. He would appreciate continuing later with a meeting on the DDM focusing on its weakness, implementation, and critiques of its principles in order to realign and work together for the improvement of the DDM.

Mr R Badenhorst (DA, Western Cape) asked where the AU Charter stands on decentralization and devolution of powers in a situation where the central government does not want to fulfil a certain function. Would the AU Charter make it possible for the function to devolve to another sphere of governance such as provincial or local government?

Dr Naidoo replied that the AU Charter relates to devolution in-depth. It has a preamble that is "cognisant of the various forms of decentralization including devolution, deconcentration and delegation in the political, administrative and financial spheres". The devolution would be specific to the state and how its policy provides practical implementation of this.

Ms Shaikh agreed with the Chairperson about the different views on the DDM. The purpose of the meeting is to focus on the ratification of the AU Charter. She proposed the Committee recommend that the NCOP ratify the AU Charter.

Mr Smit stated that he fully supports the AU Charter for ratification. His intention was to show the Department the contradictions between what they plan to implement in the DDM and the AU Charter. COGTA should not focus on the DDM as it is important not to contradict the Charter.

The Chairperson acknowledged Mr Smit's remarks. He could have phrased the question differently.

Mr Smit interjected that the Chairperson should not misquote him.

The Chairperson repeated the statement he made on the Select Committee having a future meeting that focused on DDM. He thanked Mr Smit for his response approving the ratification of the AU Charter.

Ms Shaikh seconded the approval.

The Chairperson stated that the Committee gives approval for the AU Charter to be ratified and recommends this to the House.

He thanked everyone and adjourned the meeting.