Status quo report on intergovernmental relations regarding local government

Local government in South Africa is a unique experiment in intergovernmental relations. Guided by the constitutional principle of co-operative government, the provinces, and district and local municipalities must work together to achieve their, often overlapping, goals. Key for local government is the delivery of basic services, such as water and housing, enshrined in the Bill of Rights. These government actors must coordinate common policies, programmes and delivery with each other. Since municipalities were created in 2000, a myriad of informal channels and forums have developed to align and inform each actor of the others’ desires and needs. Five years later, the current state of intergovernmental relations is fraught with confusion and misunderstanding. The Intergovernmental Relation Framework Act (IRFA) came into effect on 15 August 2005. This Act formalizes the relations between (and within) the three spheres of government. Many of the proposed forums already exist in name or practice, or both. The IRFA’s ultimate goal is to enhance intergovernmental co-operation, which is a necessary precondition of realizing the goals of the Constitution: especially the effective delivery of basic human rights. The object of this study is to canvas the evolution of intergovernmental structures, both provincial-local and intra-local, up to the date the IRFA was enacted. By analyzing the powers and function of these forums and how they have worked in practice, we will create a comprehensive picture of intergovernmental relations in South Africa. This study will serve as a benchmark against which to measure the success of the IRFA, in particular its nascent forums and their legislated activities. The report further establishes a set of criteria to evaluate the success (or failure) of IRFA forums in achieving the goals of cooperative governance

Paradises Lost? The Constitutional Politics of “Indian” Enfranchisement in Canada, 1857–1900

Enfranchisement was the legal process for an individual or community to end their legal status as “Indians” under the Indian Act. The Canadian government hoped it would break up bands before assimilating them into settler society. This article aims to excavate the untold story of this attempt to extinguish special “Indian” status in the nineteenth century. It first traces enfranchisement as part of a Victorian discourse of civilization and as a specific Canadian legal process for the assimilation of “Indian” subjects. It then uses new archival sources to tell the untold story of the politics of enfranchisement over the second half of the nineteenth century. The article concludes with the strange case of Doctor Oronhyatekha (aka Mr. Martin). His story is of one exceptional individual’s attempt to pursue an alter”Indian” enfranchisement can help us better appreciate what is at stake in contemporary questions of belonging within the agonistic relationships of the Canadian and Indigenous constitutional orders

Pamela A. Jordan, Defending Rights in Russia: Lawyers, the State, and Legal Reform in the Post-Soviet Era (Vancouver : UBC Press, 2006)

Kirkby Coel. Pamela A. Jordan, Defending Rights in Russia: Lawyers, the State, and Legal Reform in the Post-Soviet Era (Vancouver : UBC Press, 2006). In: Revue Québécoise de droit international, volume 19-1, 2006. pp. 361-363

PAMELA A. JORDAN, DEFENDING RIGHTS IN RUSSIA: LAWYERS, THE STATE, AND LEGAL REFORM IN THE POST-SOVIET ERA (VANCOUVER: UBC PRESS, 2005)

Kirkby Coel. Pamela A. Jordan, Defending Rights in Russia: Lawyers, the State, and Legal Reform in the Post-Soviet Era (Vancouver : UBC Press, 2006). In: Revue Québécoise de droit international, volume 19-1, 2006. pp. 361-363

A Critical Survey of Subnational Autonomy in African States

This article examines the quiet yet pervasive transfer of power from central governments to subnational units in Africa since the early 1990s. Central governments have justified this trend by arguing it promotes one or more of three goods: democracy, development, and accommodating diversity. The authors survey six selected countries representing federal-unitary and regional differences to evaluate their degree of formal and substantive political, administrative, and financial autonomy. Transfer of powers to subnational units, the authors conclude, is a real and nearly universal trend. However, many central governments have clawed back this grant of power in numerous ways, which led to an informal recentralization of power. Moreover, central governments of federations have deliberately strengthened local government at the expense of regional autonomy. Copyright 2008, Oxford University Press.

Fiji In transition: Towards a Susutainable Constitutional Democracy

At the time of writing, Fiji has just seen its first elections, and the first sitting of Parliament under its newly introduced constitution of the Republic of Fiji 2013 (the 2013 Constitution). The Citizens’ Constitutional Forum (CCF) shares in the excitement felt by many Fijians about this new and exciting chapter. This publication attempts to join in that excitement and hope for the future, while recognizing that there is significant work yet to be done in order to enshrine a sustainable constitutional democracy for Fiji. CCF has worked in the area of constitutional strengthening and debate for more than 15 years. We hope that the substantive analysis of the 2013 Constitution presented here will contribute to a vibrant national discussion on constitutional issues fundamental to Fiji’s transition to sustainable constitutional democracy. CCF intends this book to help kindle an informed, open and progressive national debate on the extent of constitutional dilemmas facing the country. It is directed at moving Fiji towards a stable democracy that avoids the divisions and mistrust that have hindered past transitions. The publication begins by presenting three discussion papers that provide substantive analysis on technical constitutional issues. First, on the Transitional Process, sets the scene for the volume by describing international and comparative best practice regarding transitional arrangements for nations attempting to emerge from military-backed rule. While Fiji has its unique historical, cultural, socio-economic and political context, there are common issues of central concern for countries shifting from a military-backed government to civilian rule. This paper assesses the transitional provisions set out in the 2013 Constitution against these international and comparative best practices. It concludes by presenting suggestions for ways in which the 2013 Constitution can better support a successful transition back to civilian rule. The second paper tackles the constitutional issues surrounding the doctrine of Separation of Powers. It highlights the fact that in countries emerging from highly centralized military rule, appropriate checks and balances on the executive power, including strong oversight powers in the legislature and an independent judiciary, are essential to implement the will of the people. In the absence of adequate checks and balances and the concentration of power in the hands of a few, nations emerging from military-backed rule risk becoming illiberal democracies – that is, governing systems in which elections provide nothing more than a democratic façade to dictatorial government. Such systems are particularly vulnerable to future coups. In light of this danger, the paper highlights the importance of taking steps to amend the 2013 Constitution in order to strengthen Fiji’s democratic process and end the engrained coup culture. The third Discussion Paper explores the 2013 Constitution’s Bill of Rights. The paper emphasizes that during a period of transition, such as Fiji’s, a strong Bill of Rights is essential to protect a nation’s citizens. Rights of expression and association, rights of persons to participate in political and civil life, rights necessary to ensure that the state does not harm individuals, rights essential to the rule of law, rights to promote an open and democratic society and rights to prevent governmental intrusion on an individual’s private life are all critical to any successful transition to civilian rule. Equally so is the enumeration of limitations on those rights that accord with international best practice and standards. For this reason, this paper explores the troubling omissions and limitations to be found in the 2013 Constitution’s Bill of Rights as well as the provisions that essentially undermine the Constitution’s rights and protections altogether. Key actions for the new Parliament and civil society to rectify this situation are suggested. The publication then shifts focus from the technical issues found in the 2013 Constitution, to an exploration of how the Fijian public understand the 2013 Constitution in the Constitutional Perceptions Survey. According to international and comparative best practice, constitutional reform should adhere to fundamental international principles of inclusivity, participation, transparency, consensus and national ownership. This helps to legitimize the constitution-making process and the resulting constitution in the eyes of the public, thereby reducing the risk of instability during the transitional process. The Constitutional Perceptions Survey attempts to explore and document a small portion of Fijian citizens’ thoughts, feelings and opinions about the Constitution and to gauge their sense of ownership over the document. While the results of the Perception Survey are mixed, many participants felt that they would have been more satisfied with the 2013 Constitution if its development had been more consultative and transparent, so that its contents could be seen as reflective of citizen’s wishes. The Perception Survey concludes by presenting some recommendations based on the participants’ comments for how to encourage Fijian citizens to take ownership and pride in their supreme law. The publication concludes with a Monitoring Report, which attempts to document the key events in the implementation of the 2013 Constitution over the year between its promulgation in September 2013 and the September 2014 elections. According to international and comparative best practice, an environment most conducive to democratization is achieved in a transition where the military-backed government hands over to a caretaker government for a reasonable period before elections are held. !is helps to make sure that the incumbent military-backed government does not gain an unfair advantage over any opponents, given their power to arbitrarily control events in the lead up to elections. Given that no such provisions were put in place for Fiji’s transition, it was important to monitor and document the implementation of the transitional requirements of the 2013 Constitution itself. !e Monitoring Report outlines these events, reviews the implementation status of the 2013 Constitution, the challenges that implementation has faced so far and the prospects for timely and comprehensive implementation in the future