The distinctiveness finds expression in powers and duties afforded to each sphere of government. The Constitution requires that each sphere of government must exercise its powers and duties to "secure the wellbeing of the people of the republic". This is not a duty that a sphere carries alone, the three spheres have a symbiotic relationship, as interdependent partners. Interrelatedness defines the supervisory relationship between the three spheres. The national government and provinces must oversee and ensure that municipalities exercise their powers and perform their duties in a manner that "secure the wellbeing of the people". The intervention instrument, entrenched in section 139 of the Constitution, is one of the many mechanisms designed to ensure that where the wellbeing of the people is under threat in a municipality the province and in some cases, the national government, can step in temporarily to rectify the problem. Three decades into the implementation of the 1996 Constitution, intergovernmental interventions have largely been ineffective. The Draft White Paper on Local Government notes that,

“the system’s approach to support, intervention and consequence management is too late, too unpredictable and too weak. Interventions have had limited success, and consequence management is uneven, with recurring failures to enforce accountability for non-performance or non-compliance across spheres. Of particular concern is the failure of national departments to align their intervention strategies. In practice, interventions are often triggered after prolonged decline, and implementation is uneven and fragmented, including in the way section 139 interventions are applied.” 

One of the positive aspects of the Draft White Paper is that it does not sugarcoat failure or downplay incompetence. Acknowledging a problem is an important step towards fixing it. The Draft White Paper proposes the establishment of a “more effective system of oversight, early warning, intervention and enforcement when there is clear evidence of decline”. It acknowledges that the intervention instrument is not a silver bullet to all municipal problems; it should be used under exceptional circumstances. The Draft White Paper proposes a number of ways of enhancing the effectiveness of interventions.

First, the Draft White Paper proposes the establishment of a data-driven early warning system based on standardised, objective and verifiable financial and non-financial performance information. This system must be accessed by both national and provincial spheres of government, and other role players that oversee municipalities. It should provide objective triggers for various forms of interventions. This is a welcome initiative which the Dullah Omar Institute has advocated for a while. Our Municipal Audit Consistency Barometer has demonstrated how consistency in audit performance can, for instance, be used as an early warning system to flag serious and persistent financial problems in municipalities. This is because poor audit outcomes are more often than not indicative of both financial and performance distress in a municipality.

Second, when the early warning system shows that a municipality is in a risk of being dysfunctional, the Draft White Paper proposes that the provision of support and interventions aimed at stabilising the municipality be made compulsory. However, this is not new. Section 154 of the Constitution already obliges the national government and provinces to support and strengthen the capacity of municipalities to perform their functions. The challenge in practice is that national and provincial support initiatives have largely been adequate and disjointed. This is where the Draft White Paper’s suggestion to adopt a logical and methodical way of dealing with municipalities in distress becomes crucial.

Provincial interventions into municipalities have not only been unpredictable but also lacked transparency. This partially arises from a lack of understanding of the parameters of intervention powers provided under section 139. The envisaged law to guide the exercise of intervention powers has been forthcoming for decades. In its absence, interventions into municipalities have been selective, with political considerations often outweighing the legal imperatives, at the expense of communities. The Draft White Paper seeks to address this in two ways: (1) when triggers for an intervention are in place, a province must justify why not to intervene (2) decisions on interventions must now be made public. In short, it is high time that the supervisors of local government are held accountable for the way in which they exercise their oversight powers.

As indicated above, the current approach to national interventions into municipalities is often not coordinated. National government departments such as COGTA, National Treasury and the Department of Water and Sanitation often work in silos, which means that there is a disjointed national effort to address challenges being faced by municipalities. The Draft White Paper seeks to address this by introducing the concept of “single coordinated protocol” among these departments to ensure an integrated response. All support measures from the national government must come through the integrated programme except “urgent life and safety risks require immediate action”. This is also another positive proposal. But will we finally walk the talk? The Constitution already requires that government activities be coordinated. Unless the source of the lack of coordination is addressed, we may continue to go in circles. Fortunately, proposals elsewhere in the Draft White Paper are aimed at fixing this challenge.

Section 139 of the Constitution positions provinces as the primary or first line responders to municipal failures, with the national government only playing a secondary and supportive intervention role only with respect to budget and financial problems. When a province is unwilling or incapable of exercising its intervention powers, the municipality would deteriorate into crisis, with the national government often arguing that its hands are tied.  It is against this background that the Draft White Paper has raised the question whether the legal framework should be strengthened to enable the national government to assume the primary responder function. The proposal is commendable but will likely require a constitutional amendment. 

There are perhaps two ways of expanding the national government’s intervention role. Option 1 - involves widening the scope of section 139(7) of the Constitution, providing for national interventions into municipalities to cover section 139(1). Under this option, the national government would remain a “back-up” option, when a province is unable or unwilling to effectively exercise its intervention powers despite the existence of relevant jurisdictional facts.  Option 2, which is much more drastic, would be to make intervention power a concurrent function of provinces and national government. This means the national government would no longer be a “back up” option, only intervening as last resort, but a first time responder when the situation justifies so. This option requires national and provincial governments to cooperate with one another otherwise conflicts between them may become common. Both options require the national government to build its capacity to assume the expanded intervention role.

The Draft White Paper correctly identifies the need for stronger enforcement and consequent management in the intervention system, not only at municipal level but also at provincial and national levels. This is meant to address challenges such as poor performance of oversight functions, the wide practice of undermining municipal recovery interventions, and lack of respect for the law. Identifying these challenges is the earlier task; a much more difficult task is how to address them. This is where the Draft White Paper currently falls short. However, the specific measures need not be provided in the White Paper. The anticipated legislative reforms will probably take care of this and other issues.

Lastly, the proposals in the Draft White Paper demand a lot not just from municipalities but also from the national government and provinces. It is acknowledged, rightly so, that the national and provincial governments’ houses are not in order as far as supporting municipalities is concerned. Moreover, provinces in particular often lack the capacity to comprehensively support their municipalities.  Hence, the Draft White Paper, recommends that a “single, coherent system of differentiated support and capacity building for local government” be established. The national government is assigned the task of consolidating and governing this support framework. Two areas of caution: (1) this should not be interpreted to mean more laws as local government is already overregulated (2) the national government may not necessarily have the capacity to perform an expanded mandate.

In conclusion, the proposals which the Draft White Paper seeks to introduce to enhance oversight over local government, including interventions, are progressive. The Dullah Omar Institute supports the calls for the clarification of intervention powers as provided in section 139 of the Constitution – to provide the much-needed guidance to provinces and national departments. Further, there is merit in widening the scope of intervention powers of the national government so that it can step in where provinces are unable or unwilling to act. It is clear provinces need help.

By Tinashe C Chigwata