COMMENT ON THE INTERGOVERNMENTAL RELATIONS FRAMEWORK BILL
Joan van Niekerk, Childline SA
OVERALL COMMENT
Childline welcomes the intention of the Bill as laid out in its preamble and object as the lack of communication and coordination between different tiers and sectors of government compromises effective service delivery to children families. Childline frequently experiences a critical lack of communication and coordination between national and provincial and between provincial and local levels of government.
This bill has the potential to give expression to the constitutional imperative for communication and coordination between different levels of government.
It therefore provides a broad framework into which National Policy Frameworks on specific issues such as the intersectoral management of children’s issues and sexual offences can be integrated. It is noted that this Bill deals with intergovernmental relations very broadly, and is therefore not sufficient to deal with specifics such as the protection and care of children and the management of sexual offences.
SPECIFIC COMMENTS ON THE BILL
The intention of the Bill is very broad and the statements in the preamble cut across all sectors and levels of government.
The Provisions are seen as complementary to existing (and one would therefore presume draft) legislative provisions providing for inter-governmental relations.
Of interest is the Interpretation Clause 1(3) in which it is stated that this "Act does not affect other Acts of Parliament regulating intergovernmental relations and in the event of any conflict between a provision of this Act and a provision of such other Act the Provision of that other Act prevails."
From points 2 & 3 one can therefore conclude that
this Bill does not intend to replace other national statutory provisions that facilitate intergovernmental coordination. However it can, where there is conflict, prevail over provisions in provisions at local government level.
The provisions are generalist – and therefore not specific enough to provide the coordination, implementation and oversight of a piece of legislation as complex and comprehensive as the Children’s Bill (Act).
The Bill serves the interests of government and government structures and not the interests of civil society, even iro service recipients who are only mentioned in relation to provisions that apply at local government level.
In view of the exclusion of civil society representatives, the Bill therefore has the potential to intensify all the attributes of a large bureaucracy rather than serves the interests of the citizens of the country. One might argue that a better functioning and more coordinated (bureaucracy) government will better serve the interests of its citizens. However the inclusivity of the structures and processes do not auger well for this indirect outcome.
This Bill therefore in its present form, does not, and cannot, replace the National Policy Framework in the Children’s Bill.
Specifically excluded from this Bill are the Courts and Judicial Officers 2 (2)(c), any independent and impartial tribunal 2(2)(d) and any public institution that does not fall within the National Provincial or local sphere of government. 2(2)(g). If the proposed structures in the Bill were therefore motivated as "replacements" for the provisions in the excluded chapter in the original Children’s Bill on the National Policy Framework, these specific exclusions would be particularly problematic as these structures are an integral part of service provision for children and families.
Civil society organizations, NGO’s, CBO’s and FBO’s are not included in the application of the Bill – this would be an unacceptable situation in respect of the proposed structures and processes as these provide essential services to children in respect of the implementation of the Children’s Bill. If the structures proposed in this Bill are considered to be adequate replacements for National Policy Frameworks, any coordinating and inter-sectoral structure has to be inclusive of the civil society component in order for it to be effective.
The Object of the Act as defined in clause 3 is to facilitate coordination in the implementation of policy and legislation – the provisions of the National Policy Framework as envisaged in the original draft of the Children’s Bill are far broader and have to do with the actual implementation – not just the coordination of implementation.
The Objects of the Act and their promotion – clauses 3 and 4 – make it clear that the focus is on policy, legislation and the material interests of other governments and avoiding unnecessary and wasteful duplication or jurisdictional contests between government departments. The objects do not relate directly to civil society or the protection of citizens, including children, from uncoordinated service provision. Nowhere in the Bill are citizens/children mentioned as potential or actual beneficiaries of the Bill. The bill is thus a "government structure supportive" policy not civil society supportive. Obviously civil society will be the indirect beneficiaries of improved coordination between government structures. However the National Policy Framework, as envisaged in the original draft of the Children’s Bill, acknowledged the need to coordinate (etc) services to children and families.
The President’s Coordinating Council appears to be focused on tier government structure coordination rather than inter-sectoral coordination at national level as this council limits Cabinet members to Finance, and Public service and is inclusive of the Premiers and local government representatives. However the President is empowered in section 5 (3) to invite persons not mentioned to meetings of the council. However this is obviously discretionary.
Of concern is the voluntary nature of the structures and processes proposed in the Bill – Clause 8 – "any Cabinet member may" – there is no imperative to set up coordinating structures.
The focus in the above clause is also on the Cabinet member’s functional area for which that Cab inet member is responsible. This limits the Bill’s inter-sectoral application although Clause 14 does provide (again this is not an imperative) for "Two or more national intergovernmental forums established in terms of Section 8 may meet jointly when necessary to discuss and consult on issues which are inter-sectoral in nature."
There is a more productive possibility of inter-sectoral forums at the Provincial level as there is provision for "any other members of the Executive Council designated by the Premier" 16(1)(c) . There is also the provision for the Premier to invite "any other person not mentioned…." However again these invitations are all discretionary on the Premiers and it is clear that the forums are inter-governmental and therefore not inclusive of civil society representatives and organizations.
The discretionary replication of inter-government forums is repeated at local government level. However at this level the role of the forum is inclusive of the provision of services. The district inter-government forums are tasked with "meeting at least once a year with "service providers and other role-players concerned with development in the district to co-ordinate effective provision of services and planning in the district." 25(5) – this is an interesting provision as at this level there is no stipulation as to whom these people might be so one might have the inclusion of civil society at this level. However this is not spelled out specifically and would remain discretionary on the part of the chairperson of the forum.
the frequency of forum meetings is not discussed in the Bill at national and provincial government levels but at the local government level the forum must meet at least once a year. Clause 25(5). This is an interesting provision in that this is worded as an imperative, whereas the establishment of the forum itself is not.
Chapter three of the Bill deals with conduct of Intergovernmental relations and the implementation of Protocols. Section 32 provides for the imperative (not discretionary) coordination but the discretionary development of an implementation protocol. Discretion falls away
when the performance of the function and implementation of a policy is a national priority,
when it is linked to constitutional obligations to support a local sphere of government or to build capacity in that sphere,
when the protocol will materially assist the organs of state participating in the provision of a service in a specific area (not defined - ? sector or geographical area) to co-ordinate their actions in that area
the organ of state tasked with the implementation of the policy, the exercise of statutory power, the performance of a statutory function or the provision of the service (it) has been assigned lacks the necessary capacity. Clause 32(2)
These protocols do address a number (but not all) of the tasks of the National Policy Framework as envisaged in the original draft of the Children’s Bill, are binding, but limited to government structures and it is not clearly stated that they may be inter-sectoral. (A comparison of the tasks should be inserted here for clarification)
Section 33 provides for the development of provincial policies and draft legislation affecting the local sphere of government. What is interesting is that consideration has to be given to the impact of such policy or legislation might have on the functional, institutional or financial integrity and coherence of government in the local sphere of government in the province – no consideration is given to the potential impact on civil society or service recipients. 33(2)
The provision for the settlement of inter-governmental disputes are indeed helpful in curtailing the expenses sometimes incurred in settling these as recourse to judicial proceedings, which are expensive, are discouraged.
The Memorandum on the objects of the Bill is of interest:
There is no civil society consultation as listed in the bodies consulted in Section 2 of the memorandum, other than that the bill was gazetted.
The memorandum notes that there are no financial implications for the state in respect of the implementation of the Bill – This would seem simplistic and unrealistic in relation to the setting up of the structures, processes and protocols envisaged. Certainly if this Bill were motivated as providing alternative coordinating structures to the National Policy Framework, the zero cost statement would be both inaccurate and misleading.
The decision has been made that this Bill should not be referred to the National House of Traditional Leaders since it does not contain provisions pertaining to customary law or customs of traditional communities. This decision is very difficult to understand in the context of service provision as traditional leaders provide services mandated through the National Parliament and interface with other government structures. There role in governance in communities is recognized in our national constitution. One would therefore motivate for their inclusion in the consultation processes as well as in the structures, processes and protocols envisaged in the Bill.
OVERALL CONCLUSIONS
The Bill has the potential to improve inter-governmental relations at a broad level.
Provisions are too broad to facilitate coordination on specific and complex issues, such as contained in the Children’s Bill.
The voluntary nature of some of the structures, the omission of civil society and traditional leadership from participation in these structures and processes may contribute to a lack of effectiveness.
The lack of realism around cost may compromise implementation.