The federal experience in Africa: South Africa and Ethiopia in a comparative perspective

Prof. Yonatan T. Fessha

University of the Western Cape

South Africa

• https://time.com/4463910/ethiopia-feyisa-lilesa-protest-olympics/

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• https://www.defenceweb.co.za/featured/900-service-delivery-protests-in-south-africa-over-six-months/

The federal solution

• Countries emerging from a history of ethnic and racial conflict

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• Federalism as a response

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• Explicitly embraced by some and implicitly adopted by others

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• Nigeria and Ethiopia

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• South Africa and Nigeria?

South Africa and Kenya

• Check against the minimum set of elements of federation.

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• At least two governmental units (the federal and subnational gvt).

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• Separate powers or competencies allocated to each level via a written constitution – although they may have concurrent or shared powers.

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• No unilateral amendment of division of power

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• Shared rule/ representation of regional views within the federal policy-making institutions

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• An umpire (i.e. the courts/ referendums)

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• “What’s in a name?”

The promise of a robust federation

• Empowering communities/territories

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• Political autonomy in a form of territorial autonomy

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• Direct election of subnational government by subnational electorate
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• Division of power

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• A picture of a dynamic federation

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• The practice?

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• Constituional promise not fulfilled

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• Federations that operate as a centralised system of government

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• Reasons?

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• Federalism as a ruled-based division of power

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• Violated blatantly

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• Undermined indirectly

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• South Africa and Ethiopia

Rule of law: ignored blatantly

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• Interferences that are no so subtle

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• Ethiopia: policy documents that are regularly issued by the federal government. ….. Matters that are regarded as the exclusive competence of state governments are often the subject matter of these important federal documents…..

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Subtle interferences : Acting under dictation

• Federal government undermine autonomy by dictating state governments on policies, laws and actions that must be taken.

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• South Africa

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• The transfer of Merfaong (Gauteng/ North West)

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• Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others 2008 (5) SA 171 (CC).
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• Ethiopia

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• 2001: separating the office of the State President from the legislature

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• The dictation represents a manifestation of the continuity of a federal government that is undermining the autonomy of state governments.

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Federalism within a dominant party state

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• National governments controlled by Vanguard Party (i.e. the Ethiopian People’s Revolutionary Democratic Front (now PP); African National Congress)

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• Centralised decision making process, the policy of ‘democratic centralism’ and party discipline

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• The outcome: a dominant party that is guided by democratic centralism undermines the federal feature of national-regional relationships

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• What about the courts?

The role of the umpires?

• Ethiopia
• The exclusion of courts from constitutional adjudication; The House of Federation  

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• Institutionally unsuitable and incompetent to engage with a kind of analysis that constitutional adjudication requires.

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• Difficult to see the HOF as an impartial adjudicator on constitutional disputes.

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• Very few cases have made it to the HOF.….No meaningful conversation over the constitution

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• South Africa
• The Constitutional Court
• Has strengthened municipalities by interpreting their power generously (not only against provincial governments but also against the national government)

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• Has not been supportive with respect to provincial autonomy

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The harm

•  The actions of the national government represent double harm.

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• First, the interference in subnational political affairs is committed by national politicians.

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• An accountability that should be directed to the subnational electorate is now directed to the national politicians.

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• It therefore represents harm to the principle that requires “the accountability of elected representatives to voters”.
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• But most importantly, a dominant party that is guided by democratic centralism undermines the federal feature of central-subnational relationship; it represents harm to the federal structure.

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• These types of interferences do not only disrupt the accountability of elected representatives to voters but also harm the federal structure which entails the accountability of elected subnational office-holders to subnational voters.