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Effects of federal mandates on intergovernmental relations essay

It is an evolving system of institutional co-operation that seeks to address the relations of equality and interdependence as defined by the Constitution. Effects of federal mandates on intergovernmental relations essay The Presidential Review Commission recommended an Audit of IGR in February 1998identifying the main challenges as establishing a balance between the natural evolution of intergovernmental relations and the need for prescription.

It also called for a review of the multiple structures established to promote intergovernmental relations and for proposals to improve the weak intergovernmental relations between local government and the other two spheres. This was followed by a Discussion Document March 1999 announcing the present Audit [in collaboration with the University of Fort Hare and the University of the Western Cape] for an enquiry into the existing intergovernmental structures throughout the country.

A Conference on IGR in the same month served to provide the vision of intergovernmental relations as expressed by the President and also the framework for the Audit, especially the view: Some of the constraints were caused by the hasty establishment of intergovernmental relations instruments to attain the rudimentary objectives of policy and planning in the wake of the transition from apartheid.

The chief objectives of the Audit were: The Audit has addressed the fundamentals of the system. The constitution establishes norms of co-operative government in which the spheres [as opposed to subordinate tiers] are distinctive, interdependent and inter-related. Distinctiveness is defined as the degree of legislative and executive power each sphere has to make laws and to execute them.

Their interdependence is seen to rest on the degree of dependency they have on one another for the proper fulfilment of their constitutional functions -- and their inter-relatedness is defined as the duty of each to co-operate with the other in mutual trust and good faith. There are, however, inherent tensions in the power relations which the Audit has not overlooked. Theoretically, the concept provides for a structure in which all three spheres co-ordinate their actions in such a way as not to infringe on the integrity of any of the other spheres.

In practice the relationship is far more sensitive.

Forum of Federations

For example, at one level there is the duty of the national and provincial spheres to empower, and at another level, to intervene, as shown in the section on the supervision of Local Government and the complexities of Intergovernmental Fiscal Relations. Co-operation is thus central to the system. The instruments of IGR facilitate this and reflect the concept of co-operative government whose principles underline the predominance of the national interest and require from each sphere that it respect the constitutional status, powers and functions of the other spheres.

The Instruments of Intergovernmental Relations: The co-operative government framework described above is what determines the distinctive features of the instruments of IGR and sets them apart from comparative, more conventional conceptions.

Accordingly, the emphasis of the Audit has been on identifying the weaknesses of the existing structures, strengthening the mechanisms for intergovernmental co-operation and seeking ways to mediate tensions so as not to impair the integrity of the spheres but to elevate their overall unity. The Effects of federal mandates on intergovernmental relations essay recognised that reform or regulation in itself might not lead to dramatic improvements in performance as poor IGR co-ordination is frequently a problem of capacity and management rather than a problem of inappropriate intergovernmental relations.

The instruments examined in depth comprised those so far developed in an evolving system of IGR. They are at once the institutions and actors in the system -- assessed according to the efficacy of their interaction between the spheres and within them for planning and integrated development. The instruments included, first, the executive branch of government and second, the legislative, which has its own role of developing co-operation between the national assembly and the provincial legislatures, through the National Council of Provinces.

Where formerly the IGF was seen as the instrument at the apex of the intergovernmental relations system, it was, in the view of the Audit Team, an early instrument of IGR whose structure and functions were mutually incompatible. The Audit examined it closely. Although the restructuring of the presidency has provided the strategic architecture to integrate development planning through its intersectotal cluster committees and cabinet offices, there is still considerable need to develop adequate linkages between these and the IGR instruments for the greater coherence of the system.

Similarly the creation in June 1999 of the Department of Provincial and Local Government has enabled the national government to improve its monitoring and oversight capacity and, through the department, provide greater strategic direction for intergovernmental co-operation.

As indicated in the Audit, this arrangement was more sustainable than replacing the representation afforded by the IGF with any other forum at the centre of the system. The PCC, for instance, among others, technically assisted by the six inter sectoral committees in the Cabinet Office would therefore jointly have the responsibility of advancing the culture of co-operative governance. The recommendations [referred to below] to enact enabling legislation for their regulation is to provide a framework for their activities without imposing an inflexible regime upon them.

Assymetry in the design of regulation was possible so long as it was not inconsistent with the general principles underlying the proposed legislation.

The practice of supervision and support The Audit Team noted the failure at the provincial level to develop the necessary co-operative government framework, although an encouraging sign of progress was the Memorandum of Understanding between the Eastern Cape Provincial Legislature and effects of federal mandates on intergovernmental relations essay Eastern Cape Local Government Association which ,if acted upon, would regulate their interaction with Organised Local Government and, in so doing, encourage emulation by other provinces for improved co-operation with municipalities and metros.

In assessing the practice of monitoring, support and intervention by provinces, the Audit assessed the use of Section 139 of the Constitution and the obligation of the province to oversee the capacity of local government to deliver services effectively. The role and oversight function of the NCOP were equally addressed. The case studies on Tweeling in the Free State and Warrenton in the Northern Cape Province, provide insights into the role, relations [with province and NCOP] and the capacity of organised local government to discharge its services responsibly A number of general conclusions flowed from the study, notably [in respect of the intervention in Warrenton] that with a proper monitoring system and use of the right measures of support, the intervention could have been prevented.

The case of Tweeling, in the Free State was an example of political and administrative mismanagement on the part of the TLC. Among the lessons learned from the case study was that in this instance the intervention also could have been prevented, if the provincial department had understood its supporting role better and adopted the problem-solving role played by the NCOP after the intervention.

Recommendations for the national supervision of provinces and conclusions drawn from the case studies extend the scope of IGR. Since this function is exercised by all three components of government, the NCOP is regarded by the Audit Team as an important instrument for giving effect to intergovernmental relations. Moreover, its powerful review function — scrutinising specific national and provincial executive actions affecting the distinctiveness of another sphere, with the power to overturn or approve those actions -- makes its role in IGR significant.

The Audit was critical of the NCOP at a number of levels, noting its functional overload, limited resources and dis-empowering legislative process.

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The consideration of Section 76 bills was seen to be its pre-eminent role and the one for which it was best equipped and structured. The substance of the critique in respect of overload, is that the NCOP is inundated with work due to its broad mandate in which it scrutinises both Section 75 and 76 bills. As special delegates play little part in the committee system, the scrutiny of all bills rests with only the permanent delegates.

The problem is compounded by the smaller 30 member provincial legislatures, where approximately half the members are free to do Committee work. The legislatures simply do not have the resources to cope with the exacting demands of legislative scrutiny or to deal with bills expeditiously within the legislative cycle.

Hence there is hardly an opportunity for a considered view to be heard from the provincial legislatures. Respondents felt that little value was added to the debate and the NCOP appeared to them as simply a "rubber stamp" of the National Assembly.

In its oversight function the NCOP had not carried out its role as competently as it is required to do. The internal organisation of the Select Committees was found to be seriously wanting in regard to their management and the issues to be probed. Intergovernmental Fiscal relations The Audit Report maps out the constitutional responsibilities of the spheres in their fiscal relations and the inherent tensions in the system — reflecting the conceptual inconsistencies in the power relations between the spheres [referred to earlier in the Audit].

In elaborating the financial framework provided by the constitution for the provinces, this section considers the question of revenue raising — primarily reserved for national government but balanced by the provincial right to its equitable share.

A critical review of the provincial intergovernmental fiscal institutions is provided, dealing with their roles and functions, alignment, and sequencing and inconsistencies in the intergovernmentaL budget process. Policy options for improving provincial fiscal relations call for a re-assessment of the roles and responsibilities of provincial and national goverbnment with regard to concurrent functions to bring consistency into the process and set norms, standards and policy objectives.

A reassessment of the present revenue assignment is recommended, including increased taxation powers at provincial level. Monitoring, co-ordination and alignment are seen as important in accelerating budget reform and improving co-ordination. An innovative aspect of this section of the Audit is the discussion on Key indicators -- both Outcome and Processed based -- for measuring the health of IGR.

The Settlement of Intergovernmental Disputes: The final section of the Audit refers to the avoidance of legal proceedings against one another, by the spheres.

This is a duty imposed by the Constitution. Whilst the latter foresees the likelihood of a breakdown between and within spheres, it imposes a duty on organs of state, in the event of a dispute, to exhaust all other remedies before approaching a court. An act of Parliament is required under S 41 2 b of the Constitution to provide for such alternative[non judicial] mechanisms.

  1. Such legislation is essentially issue-sensitive and can give content to a normative framework in terms of which disputes can be settled.
  2. Currently, each provincial association elects 10 representatives to the NCOP, while SALGA would select 10 representatives from the 90 provincial nominees for a particular meeting.
  3. Constitution does not contemplate direct federal-local relations.

The Audit addresses these and recommends that legislation be delayed. It sees no compelling urgency to enact this legislation. Moreover, delay might allow best practices to emerge which can later be captured in effective legislation. The duty to exhaust all procedures before resorting to judicial remedies will obviously continue to apply.

Sectorally-based legislation is however encouraged for settling disputes within a sector [vide the National Environmental Management Act]. Such legislation is essentially issue-sensitive and can give content to a normative framework in terms of which disputes can be settled. The recommendations that follow encapsulate this approach. The recommendations of the Audit appear below as a separate section to this summary.

The following are the main recommendations of the Intergovernmental Relations Audit. The chapters referred to appear in the same order in the Final Report. Instruments of intergovernmental relations 2. During the course of the audit, a process of review of the IGF was under way. As an inclusive body, the IGF was initially seen to be important for consultation between provincial and national government.

Essay about Mandates and Federalism Essay

Potentially it was well placed to facilitate planning and co-ordinate the activities of the three spheres of government. Since it brought together most of the top leadership in the country, it was important for receiving rather than sharing information and should have provided opportunities for networking beyond effects of federal mandates on intergovernmental relations essay confines of political parties.

It did, however, serve as a forum for members to receive information on important, often sensitive issues, requiring more inter-governmental consultation, co-operation and co-ordination than the forum was able to provide. On the whole, the Audit Team found that it failed as a multilateral, intergovernmental, policy-planning body upon whom government could rely for support, advice and the implementation of its development programme.

The first meeting should be used by the President to set out the priorities of government and these should be filtered down to the national, provincial and local levels. The purpose of the second meeting should be to review progress of objectives set out in the first meeting. In this way, "the IGF should be used as an instrument to co-ordinate government programmes and enhance and add value to Cabinet decisions. In addition, the new Council would need to include in their brief the terms of reference appropriate to the extensive executive authority prescribed for premiers by the Constitution S 125[1] and [2]; S 127[1] and [2].

In order to achieve this, the PCC will perforce create new linkages with the other intergovernmental relations for a, such as the MINMECs, statutory co-ordinating institutions and other bodies. Given the experience of the previous forum, this is unquestionably a priority. The reference point for the new forum is the constitutional responsibility of premiers to exercise their executive authority together with their Excos to promote good governance in the province. Inter alia, this involves the development of provincial policy, championing development and the administration of key concurrent functions shared with the national government.

What separates the national-provincial forum from the previous body is its emphasis on these core activities within a co-operative government framework.

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An important feature of this framework is the formal responsibility of premiers to use their executive authority to ensure the delivery of services through co-operative interaction with local government. The flow of information between provincial and national departments is one of the serious problems raised by respondents. The recommendation see below for an Act to regulate IGR structures is designed to address this.

While section 41 2 of the Constitution requires an Act of Parliament to "establish or provide a structure and institutions to promote and facilitate intergovernmental relations", it does not specify when this legislation should be enacted, or prescribe its nature. Such legislation should be broadly enabling and set out such basic requirements as terms of reference, membership, criteria for compliance, technical support structures, and the assignment of responsibility for compilation of agendas, minutes of meetings, regular reports, a consultative process, linkages with other sectors, clusters and fora, and reports to provincial Excos and the Cabinet Office.

Communication and information between the MINMEC structures, the provincial executive committees, appropriate national departments and the Presidency should be a requirement. As the Act should be enabling, rather than prescriptive, regulation may be applied asymmetrically for each structure, provided that it is not inconsistent with the legislation.

While the requirements of the sector will determine specific objectives, the Act would establish general criteria such as would require MINMECs to act as a means of co-operation, alignment and co-ordination of policies, and to facilitate the interaction of national and provincial government and, wherever applicable, in local government, according to the principles of Section 41 of the Constitution. It is recommended that the proposed legislation require MINMECs to include mechanisms for the settlement of potential disagreements in the regulations governing their procedures.

Accountability should include the relevant portfolio committee s to ensure that the structure works in a way that best served the sector and its related parts, within a co-operative governance framework.