The place and role of local government in federal …

1 The place and role of local government infederal systemsEDITED BYNICO STEYTLERKONRAD-ADENAUER-STIFTUNG OCCASIONAL PAPERS JOHANNESBURG NOVEMBER2005 KAS, 2005 All rights reservedWhile copyright in this publication as a whole is vested in the Konrad-Adenauer-Stiftung, copyright in the text rests with the individual authors, and no paper maybe reproduced in whole or part without the express permission, in writing, of bothauthors and the publisher. It should be noted that any opinions expressed are theresponsibility of the individual authors and that the Konrad-Adenauer-Stiftung doesnot necessarily subscribe to the opinions of : 0-9584936-8-5 Published by:Konrad-Adenauer-Stiftung60 Hume RoadDunkeld 2196 JohannesburgRepublic of South AfricaPO Box 1383 Houghton 2041 JohannesburgRepublic of South AfricaTelephone: (+27 +11) 214-2900 Telefax: (+27 +11) 214-2913/4E-mail: DTP and production: Tyrus Text and DesignReproduction: Rapid ReproPrinting.

2 Stups PrintingSouth Africa has embarked on an important experiment of creating adecentralised system of government comprising three spheres of government national, provincial and local . In comparison with international practice, localgovernment has been given considerable constitutional recognition. In manyrespects South Africa is a leader in the emerging role that local government isexpected to play in entrenching democracy and promoting Africa is not, however, the only decentralised country in the worldthat has embarked on this route of strengthening local government as a fullsphere of government . In the more recent constitutions of Spain, Brazil, India,Nigeria and Switzerland, local government has been entrenched.

3 But havingthree spheres of government operating each with a degree of autonomy makesfor complex relationships. It may also impact on the effectiveness and efficiencyof government . These problems are shared by most decentralised place and role of local government in federal systems were examined atthe annual conference of the International Association of Centers for FederalStudies (IACFS). From 29 September to 3 October 2004, the local GovernmentProject of the Community Law Centre, University of the Western Cape, hostedthe annual meeting of the IACFS. The conference, sponsored by the DemocracyDevelopment Programme (DDP) and the Konrad-Adenauer-Stiftung (KAS), washeld at Mont Fleur, conference was attended by 20 international delegates representing 14 IACFS member organisations from 11 different countries.

4 Delegates were alsoin attendance from South African organisations, including the MunicipalDemarcation Board, the DDP and KAS, the Palmer Development Group, andthe Drakenstein volume is a collection of some of the papers that were delivered at Community Law Centre would like to express its sincere gratitude toboth the DDP and KAS for their interest in the project and for their financialsupport that made the conference and this publication Centre also acknowledges the assistance of the Ford Foundation,supporting the research on local government in South would also like to thank two interns sponsored by the Forum of Federationand the Canadian International Development Agency, Cristen Peel and CoelKirkby, for their invaluable editorial assistance.

5 Finally, my appreciation goes toall the contributors of papers who responded to the many queries and Nico SteytlerDirector, Community Law Centre University of the Western CapeNovember 2005 THE place AND ROLE OF local government IN federal SYSTEMSivIntroduction1 Nico SteytlerState constitutions and local government in the United States11 Michael E. LibonatiLocal government : Still a junior government ? The place of 27municipalities within the Canadian federationHarvey Lazar & Aron SealConstitutional recognition of local government in Australia47 Cheryl SaundersLocal government in Austria65 Peter Pernthaler & Anna GamperLocal government and city states in Germany83 Jutta KramerLocal government in Spain95 Enric Fossas & Francisco VelascoLocal government in Switzerland123 Pascal BulliardConstitutional reform.

6 local government and the recent changes to 149intergovernmental relations in ItalyBeniamino Caravita di TorittoTable of contentsTHE place AND ROLE OF local government IN federal SYSTEMSviThe normative autonomy of local government in Italy169 Paola BilanciaLocal government in South Africa: 183 Entrenching decentralisated governmentNico SteytlerBibliography213 Occasional Paper Series221 Seminar Reports227 Three-level government federal , state/provincial and local government iscommon to all federal systems; however, the place and role of local governmentin those systems vary markedly. In some, local government is a constitutionallyrecognised sphere of government , while in others it is merely a competence ofthe state/provincial government .

7 Nevertheless, local government has anincreasing role in the governance of federal countries, placing new demands onthe theory and practice of federalism. Moreover, its status is changing alongwith its new role. The constitutional recognition of local government as an order ofgovernment in federal systems is a modern phenomenon. The first federalconstitutions of the modern era did not include local government as an orderof government . The Constitution of the United States of 1787 was silent on thematter, as was the Swiss Constitution of 1848. In the Canadian Constitution of1867, local government was mentioned only as a provincial field ofcompetence.

8 The Australian federal Constitution of 1901, being silent on thematter, had the same effect making local government a creature of statepower. It was only after the Second World War that local self-governmentincreasingly appeared in federal constitutions, often coinciding with the returnto democratic rule. The first was the Constitution of the federal Republic of1 IntroductionNICO STEYTLERNico Steytleris director of the Community Law Centre at the University of the of 1949. Although the Spanish Constitution of 1978 was focused onthe creation of Autonomous Communities, local autonomy was neverthelessmentioned.

9 Brazil s return to civilian rule was also marked by the extensiveprotection of local self- government in the Constitution of 1988. Theentrenchment of local government in the 73rd and 74th amendments to theIndian Constitution in 1992 was prompted by developmental concerns, whilethe extensive protection of local self- government in the South AfricanConstitution of 1996 was the result of both democratic and developmentalgoals. Similar sentiments informed the entrenchment of local government as anorder of government in the Nigerian Constitution of 1999. In contrast to these developments, the recognition of local government inthe Swiss Constitution of 1999 merely reflected the practice on the ground.

10 InItaly, the constitutional reform initiatives of 1999 and 2001, entrenchingdecentralisation, have seen the recognition of regions, provinces andmunicipalities. The trend is to increase the role of local authorities in the provision ofservices. local authorities are seen as engines for growth and development, andmore and more functions are being downloaded on them. This placesconsiderable stress on local government to finance new responsibilities. Withthe increased status and role of local government , intergovernmental relationsbetween the three levels of government have not only become more complex,but also critical for the demarcation of responsibilities and effective cooperationin service these developments, the theory and practice of federalism areconfronted with new challenges and questions, including the following: Has local government emerged as an entrenched and viable sphere of self- government in federal systems?