Spatial Reconfiguration and the value of an Independent Demarcation Body

1
Spatial Reconfiguration and the value of an
Independent Demarcation Body

• TEN YEAR CELEBRATORY CONFERENCE
• JOHANNESBURG
• 23 JANUARY 2009

Vuyo MlokotiChairperson Municipal Demarcation
Board
2
BACKGROUND

• On this occasion, its appropriate to reflect on
  the spatial history of South Africa, and to
  consider the value of an independent body such as
  the MDB.
• We come from an era where previous Constitutions
  were not supreme, and where the spatial
  reorganisation of our country was not a
  constitutional priority.
• Prior to 1994, South Africa was deeply divided
  not only along racial, social and economic lines,
  but also spatially.
• The divisions have colonial roots with the
  creation of reserves under the British rule in
  the 19th century.

3
BACKGROUND

• Under apartheid, there were
• 4 provinces and 10 homelands, some of which were
  highly fragmented.
• The 1950 Group Areas Act geographically separated
  racial groups.
• Each homeland was required to develop a
  separate-nation state with its own citizenship,
  separate national identity, culture and language.
• At local level the1262 different local government
  structures included
• - R293 black townships with own administrations
  but with no powers
• - Coloured and Indian management Committees
  which were advisory to White municipalities
• - Black Administration Boards which removed the
  responsibility for townships from White
  local authorities
• - Community Councils with elected members but
  without meaningful powers and resources
  and later

4
Background

• - Black local authorities which replaced
  community councils - members were elected but
  without a significant tax base and political
  legitimacy.
• - Within municipal areas, municipal land could
  be demarcated or reserved for a particular
  race group under the Separate Amenities Act of
  1953.
• In summary
• Under apartheid, settlements were spatially,
  socially an economically distorted
• Post 1994, there was an urgent need for
  appropriate spatial reorganisation of our
  country.

5
A NEW ERA

• In the new era Political and the consequential
  spatial reform emerged as a result of
• The Local Government Negotiation Forum.
• The Codesa negotiations and the adoption of the
  1993 interim Constitution.
• The National and Provincial elections on 27 April
  1994.
• The Elections Task Group (ETG)
• The Local Government elections in 1995/1996.
• The adoption of the 1996 Constitution.
• The rationalisation of municipalities in
  1999/2000 through the demarcation process
• The delimitation of wards for the 2000 local
  elections
• The Local Government Elections in 2000
• The National and Provincial Government Elections
  in 2004
• The Local Government Elections in 2006

6
A NEW ERA

• Key spatial changes dealt with include
• The disestablishment of the homeland system and
  boundaries the first major step in building an
  undivided South Africa
• The pre 1994 local government boundaries and
  bodies were reduced from 1262 to 843 in the
  1995/96 local elections,
• A further reduction occurred with the 2000 local
  government elections from 843 to 284
  municipalities,
• In 2000, a number of cross provincial boundary
  municipalities were established
• A slight reduction in the number of local
  government structures in 2006 284 to 283
  municipalities
• The disestablishment of cross boundary
  municipalities in 2005/2006 resulting in,
• A modification of provincial boundaries in (7
  provinces)
• Gauteng
• North West
• Northern Cape
• Mpumalanga
• Limpopo
• KwaZulu-Natal
• Eastern Cape

7
A NEW ERA

• Future changes include the following
• In 2008 the inclusion of district management
  areas into the municipal areas of the local
  municipalities this will become effective on
  the date of the next local elections in 2011
• The establishment of 3 new metropolitan areas on
  the date of the local elections in 2011
• Key policy issues which may be considered and
  which will impact the current spatial
  configuration of South Africa
• Retention or reduction in the current number of
  provinces
• Retention, modification or disestablishment of
  the two tier system of local government

8
CONSTITUTIONAL RECOGNITION AND LEGISLATION

• Specific and detailed comparative studies and
  research may not be readily available.
• However, with reasonable confidence, South Africa
  is probably unique in that
• our local government system is autonomous, being
  a distinct sphere of government in its own right,
  
• an independent body (the MDB) contributes
  significantly to the spatial transformation of
  our country, especially at local level, and
• the Constitutional protection of our local
  government system including the demarcation of
  municipal and ward boundaries, and the assessment
  of municipal capacity by an independent
  authority.
• Indeed, our extensive local government
  legislation may put South Africa in a leading
  role amongst many developed and developing
  countries.

9
CONSTITUTIONAL RECOGNITION AND LEGISLATION

• Given the complexity of South Africas history
  the drafters of our final 1996 Constitution made
  provision for the creation of an independent body
  to deal with the demarcation of municipal
  boundaries Section 155(3)(b)
• The Local Government Municipal Demarcation Act,
  1998 gave effect to this Constitutional provision
  by establishing the Municipal Demarcation Board
• The Local Government Municipal Structures Act,
  1998 provided the MDB with additional functions
  which included
• the determination of ward boundaries for local
  elections,
• the assessment of the capacity of municipalities
  to perform their functions, and
• the declaration of district management areas.

10
SOME SPECIAL FEATURES

• The distinctive nature of our system include the
  following aspects
• There are two bodies, namely,
• The IEC responsible for organising elections and
  maintaining the national common voters.
• The MDB responsible for demarcating municipal and
  ward boundaries.
• In some countries, one body is responsible for
  both the elections and electoral/administrative
  boundaries.
• Our municipal boundaries are re-determined on an
  ongoing basis (remain flexible), while in some
  countries municipal boundaries remain static.
• Municipal boundaries form a basis for the
  alignment of voting districts and voting
  districts are used as building blocks for ward
  boundaries.
• Registered voters in voting districts are used to
  ensure that each ward in a municipality has more
  or less an equal number of voters.
• Our system allows for proper public and
  stakeholder participation in the demarcation and
  delimitation processes.
• Members of the Board are appointed by the
  President, and represent the diversity of the
  people of our country.
• In some countries, members come either from the
  judiciary or parliament.
• The Board has the final say on municipal and ward
  boundaries. (it is not an advisory body).
• In some countries final decision/approval is a
  prerogative of the President or a Governor
  General or a commissioner or legislatures.

11
INTERNATIONAL TRENDS

• Its accepted that each country designs its own
  structures and systems, informed by its history
  to fit the particular needs and circumstances in
  that country.
• In many countries local government and the
  determination of municipal boundaries are subject
  to some political or governmental supervision,
  approval and/or intervention.
• The responsibility for drawing boundaries vests,
  in some countries with
• the Legislature,
• the Executive,
• a Boundary Commission,
• an electoral management body,
• a government department, or
• an agency.
• In some Commonwealth countries, the authority for
  demarcation vests with independent , impartial
  commissions with final decision making powers. In
  some countries, the legislature can debate and
  even delay the enactment of a commissions plan,
  but it cannot modify the plan. However, some
  countries require executive approval, rather than
  legislative approval, before implementation.
• In Canada the federal and provincial levels of
  government have constitutionally entrenched
  status, while municipal governance is subject to
  provincial authority. (a common trend in most
  Federal states)

12
INTERNATIONAL TRENDS

• Ireland has a Local Government (Boundaries) Act,
  in which the Governor appoints a commissioner to
  determine the boundaries of local constituencies.
  
• The Local Government Boundary Commission for
  Scotland is an Advisory Non-Departmental Public
  Body. It is an independent, non-political body
  created by the Local Government (Scotland) Act
  1973.
• In New Zealand the Local Government Commission,
  an independent Statutory body, takes decisions on
  the structure and representation requirements of
  local government and is also responsible for
  altering boundaries of local authorities.
• In Malawi Sierra Leonne the Electoral
  Commissions are responsible for boundary issues
  in addition to electoral matters.
• The Constitution of the Republic of Ghana
  provides for the Electoral Commission to be
  final authority in the demarcation of
  constituency boundaries, and electoral
  districts. 
• In Fiji the major urban centres are proclaimed
  City or Town under the Local Government Act etc.

13
THE INDEPENDENCE OF THE MDB

• Constitutional and legal provisions on the
  independence of the MDB were strengthened by
  Constitutional court judgements.
• In the 1999 Western Cape/KZN Case the
  Constitutional Court had the following to say
  about the MDB
• The purpose of section 155(3)(b) may well have
  been to guard against political interference in
  the process of creating new municipalities, and
  to this extent the function of determining
  municipal boundaries is entrusted to an
  independent authority
• .. it means that the provincial government
  must establish municipalities in accordance with
  the boundaries as determined by the Demarcation
  Board
• the Demarcation Board should determine
  boundaries in accordance with the criteria and
  procedures . it should be able to do this
  without being constrained in any way by the
  national or provincial governments.
• the authority to determine municipal
  boundaries vests solely in the Demarcation Board.

14
CHARACTERISTICS OF AN INDEPENDENT BODY

• It must be protected by law.
• It must be a-political, and perform its functions
  free of a political ideology or partisanship.
• It must be able to resist political and other
  influences and pressures.
• It must operate independently, but within the
  parameters of the law.
• It must protect its independence, and never be
  subject to directions and control of any persons,
  party, institution or interest group unless
  permitted by law.
• It must not rely on others in its decision
  making.
• It must be self-directing, and not subject to
  bias and influence.
• It must perform its functions without fear,
  favour or prejudice, but with dignity.
• It must be accountable, transparent, and
  impartial.

15
CHARACTERISTICS OF AN INDEPENDENT BODY

• It must comprise of knowledgeable persons who
  understand the history and challenges of the
  country, and in particular its terms of reference
  and duties.
• It must be open for change, and able to engage
  with different opinions.
• It must be innovative and members must be willing
  to work as a team to find collective solutions to
  challenges within set or predictable timeframes.
  .
• It must take decisions to satisfy legitimate
  needs and not to enhance the interest of a
  particular person, organisation or institution.
• Its decisions must have the force of law, and may
  not be subject to modification or veto by the
  government or by the legislature.
• Its processes must be viewed by stakeholders as
  impartial and unbiased although the results
  may, in fact, have profound political
  consequences.
• It must be well resourced in terms of staff,
  finances, infrastructure and technology.
• It must have a clear working relationship with
  its administration and other organs of state with
  due regard to its independence.

16
ADVANTAGES OF AN INDEPENDENT BODY

• It removes key and sensitive processes from
  bureaucratic red tape. (It was possible to
  rationalise municipalities, and to create new
  municipal and ward boundaries within 18 months in
  1999/2000.). GOVT dept---Bosberaad-----5yr
  strategic plan----implementation plans etc.
• It prevents political and other interferences,
  interventions, and gerrymandering.
• It ensures that criteria are applied by a body
  not having a direct interest.
• It ensures that the same standards are maintained
  throughout the country.
• It ensures a dedicated focus without being
  influenced by other governmental objectives,
  projects and programmes.
• It allows for weighing of different interests
  without preferences e.g. traditional boundaries
  vis-a-vis municipal boundaries.

17
ADVANTAGES OF AN INDEPENDENT BODY

• It reduces the chances for ethnic, political,
  community and other polarisations.
• It enhances community trust and faith in the
  processes and outcomes.
• It maximises opportunities for participation in
  processes.
• It prevents administrative shocks when political
  power changes.
• It ensures continuity of structures and
  processes.

18
WAY FORWARD

• The term of office of the current (2nd)
  Demarcation Board will end, and the term of
  office of the new (3rd) Demarcation Board will
  commence on 1 February 2009.
• A sound basis has been laid over the past 10
  years by the 1st and 2nd Board, and its
  administration.
• The immediate priority is to make - through the
  ward delimitation process - a further
  contribution to sustain democracy at local level,
  and to enhance the development of our local
  government system.
• This process needs to be followed up with the
  further refinement of municipal and other
  boundaries.
• However, boundaries can not solve all the
  problems that municipalities are facing, and can
  not substitute other reform and capacity measures
  that are needed.
• Boundaries can set the structural conditions
  within which other processes of transforming and
  developing local government must occur.

19

• Much needs to be done to ensure that
  municipalities have councils and administrations
  that are properly organised, have stable and
  adequate sources of income, and have
  well-functioning structures and systems.
• Boundary changes must be part of a total package
  to make South Africa a better place for all its
  inhabitants.
• I thank and salute members of the 1st and 2nd
  Board,
• and all the MDB staff and stakeholders for their
  valuable contributions.
• I wish the new members of the 3rd Board
• all the best for their
• 5 year term in office.