Western Cape Minister of Foreign Affairs?

Henry

The ability to conduct foreign affairs is a defining characteristic of an independent, sovereign government. This is why central governments, even in federations, tend to monopolize the function entirely, at the expense of subnational governments. But that is not the whole story.

It is a very unofficial and moreover academic understanding which, in South Africa’s case, is not enshrined in the Constitution. There are also international examples of subnational units that actually conduct at least some of their own foreign affairs. This leaves room for opposition-controlled provinces in South Africa to make a radical move towards more decentralisation.

The Western Cape is currently the only such province, and it has many excuses for not doing so.

Incongruence between Cape Town and Pretoria

Around November 21, 2023, the parliament voted to cut diplomatic ties with the state of Israel.

Somehow, I am told, it is not binding, and the executive can simply override parliament. I have my reservations.

South Africa does have a nominal separation of powers, but this does not apply between parliament and the executive in the same way as between those two branches and the courts. This is because the executive authority is established from the legislature – South Africa is largely a constitutional democracy.

In other words, in my opinion, the executive has no freedom to ignore a parliamentary directive. If it does disregard parliament, in my opinion it would amount to an automatic motion of no confidence in the sitting cabinet.

Whether the resolution that the parliament accepted on Israel is a recommendation or an instruction is another matter – but as far as I am concerned, the South African central government has now formally decided to sever ties with Israel. The ill-considered accusation of genocide that South Africa is now putting in the International Court of Justice against Israel does not help.

Besides the fact that the South African government finds itself pro-Hamas and against Israel, the South African government also ridiculously finds itself on the side of Russia in its invasion of Ukraine. So also on the side of the Beijing rebels against the only democratic, and therefore according to the contestable logic of modern state theory, the only legitimate government of China based in Taipei.

The Western Cape, in general, does not share the insane views on foreign policy of the central government. It seems that the Western Cape positions itself closer to the West than the ANC does in Pretoria.

The people living in the Western Cape have consistently – and without exception – rejected the ANC government in each of South Africa’s last six general elections. South Africa is a federation, and sub-central units that conduct their own foreign affairs in federations are not unheard of.

The Canadian province of Quebec and the Belgian provinces of Flanders and Wallonia have their own foreign offices. It is therefore not unheard of for sub-national spheres of government in federations – of which South Africa is undeniably one – to conduct at least partially their own foreign affairs.

This is even more the case, since the Constitution does not expressly reserve all foreign policy matters to the exclusive domain of the central government.

According to article 231 of the Constitution, the central government only has an exclusive mandate to get involved in the “negotiation and signing of all international agreements” that are binding for South Africa as a whole.

Take the initiative!

The Western Cape – and any other South African province, but primarily the Western Cape because it is the only province not governed by the ANC – can take the initiative to establish a foreign office with a foreign minister . The office will be responsible for the foreign and international dimensions of their provincial (and municipal, where appropriate) powers.

In Belgium this principle is known as forum interno, foro externo.

Municipalities, which according to the South African Constitution have a much greater scope for self-government than provinces, can also delegate some of their powers upwards to their provinces. The municipalities of the Western Cape can designate the provincial government as the international representative of their municipal interests.

If the Western Cape takes the initiative, it will empower other provinces that may be governed by opposition coalitions from 2024 to take similar steps when the time comes.

The Western Cape already has something called the directorate international relations of the department of economic development and tourism. It states its own mission very strongly as “to promote healthy international relations, provide strategic advice, manage protocol and administer the provincial honors system”.

The province therefore already has a foreign office on paper. But like the cold case unit of a police department, this “directorate” appears to be the black sheep of the provincial government, which no one (least of all the provincial government itself) takes seriously.

What would a provincial foreign office do?

If a province cannot sign binding international agreements, what would a real Western Cape office of foreign affairs conceivably do?

The value of pure (or ‘mere’, even) representation has suffered a loss of recognition in recent years. There was a time when parliaments themselves were not primarily ‘legislative’ entities. They were meetings where the views of ordinary people outside the political class would be represented.

Representation, in itself, of people or of points of view, is important and politically powerful.

One can think back to when South Africa became a subject of international concern, after former US President Donald Trump tweeted about the central government’s plans to confiscate property without compensation. Since then, some civil society organizations have attacked the US government and the European Union and its various member states in an attempt to garner international support against this backward policy.

It would have been powerful at the time if a Western Cape foreign minister could have stood on the international stage and declared that the central South African government had gone rogue in its decision to water down constitutional institutions, and that the province was against this policy is.

It would have been pure representation of more than 7 million South Africans at the global level, even if that minister could not do anything binding. It would not have been merely an opposition party leader speaking out against the central government, but a senior government official, clothed with legal authority, speaking out against the anti-constitutional plots of Pretoria.

Less symbolically, a provincial foreign office can be at the forefront of representing businesses from that province to international governments. It will also be the Western Cape government’s representative for foreign businesses looking for a new place to invest. This seems to be the primary concern of the Directorate of International Relations, at least in theory.

Western Cape Prime Minister, Alan Winde, recently himself led a delegation to the United States, on behalf of the provincial government, to ‘promote the Western Cape as a trade and investment destination of choice (and) assure the US government that the province remains committed to the Africa Growth and Opportunity Act (AGOA)’. It was pure representation.

One piece of a federalist revival

The Solidarity Movement, a non-governmental group of organisations, was able to conduct its own foreign affairs, after establishing relations with governments in Hungary and South Tyrol. If the Solidarity Movement can do this, a constitutional institution like the Western Cape provincial government has no excuse not to do the same.

Some may claim that foreign states will simply refuse to engage in dialogue with anyone but the central South African government.

This is a good textbook idea, but probably does not reflect reality. Moreover, this decision rests with the foreign governments. If they don’t want to get involved in the Western Cape, they don’t have to get involved. This does nothing to harm the argument that the Western Cape should take the initiative and open the door.

The central government will naturally challenge provinces that try to conduct their own foreign affairs. This is to be expected, and not necessarily a bad thing. The characters of the great federations of the world – the United States, Canada and Australia – were largely forged in the battlefield of courtrooms.

In South Africa there is an unfortunate lack of federalist litigation, despite the federal nature of the Constitution. The Constitution is replete with ambiguous provisions relating to the division of powers between the spheres of government. This ambiguity, given the strong constitutional emphasis on subsidiarity, should be constructively exploited by provinces in favor of federalism.

If South Africa’s provinces start conducting their own foreign affairs, this necessary litigation may get a kick-off. Perhaps federal decentralization will then finally begin to receive the attention it so desperately needs, in a time of state collapse.