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CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
18 August 1998
MUNICIPAL STRUCTURES BILL; PERFORMANCE MANAGEMENT AT LOCAL GOVERNMENT LEVEL: BRIEFING
Documents handed out
Departmental draft report on the Remuneration of Public Office Bearers Bill (to be discussed in 19/8/98 meeting.)
The first hour of the meeting was a briefing by Dr. Chippy Olver from the Department of Constitutional Affairs on the Municipal Structures Bill [B68-98] with questions of clarity. The committee is moving through the Bill very slowly. The briefing dealt with the first part of the chapter on Municipal Councils.
The second hour of the meeting was a briefing by two UK consultants who are advising the Deptartment on policy issues around performance management in local government.
Briefing on B68 -98 Local Government: Municipal Structures Bill by Dr C Olver with questions of clarity from the members of the committee
The department has received comment on the Bill and it suggested areas the committee could look at amending in line with some of the comments.
Section 22 : By-elections
An MEC, for example, was concerned that the role of MECs should not be reduced to that of a clerk and suggested that the task of calling a by-election should be given to the council as it is largely an administrative task. There are four instances in which a by-election must be held and the department makes a distinction between the first three of
these and the last, the last being when a vacancy in a ward occurs. With regard to this last instance the department feels the task could be given to the council as it is merely an administrative task but motivated that the other three instances involve a degree of political discretion and that the task should therefore remain with the MEC. Some of the questions from committee members raised doubts about this interpretation and the department will look into the matter further.
Colin Eglin raised the point that there is no provision for giving notice of an election. The section says only that by-elections must be held within 90 days of the date of the event giving rise to the need for an election. Again the department will look into this matter.
Dr Olver pointed out that the constitutional amendment before the committee overlaps somewhat with this Bill and if that amendment is not passed aspects of the Bill may need to be revisited.
Section 23: Terms of Office
Mr Eglin pointed out that this section does not actually use the words "terms of office" and does not provide a clear definition of a councillors' terms of office. With regard to drafting style he suggested it should do this as other sections (e.g. s. 24) refer to terms of office.
Section 24: Vacation of office
The discussion here revolved around the right of recall of members of Municipal Councils who are appointed by other Municipal Councils to represent those other councils (section 157(1)(a)(i) of the constitution).
Their mandate comes from those councils that they are representing and if they fail to carry out their mandate should section 24 not include an additional clause allowing for their recall. Would this not increase their accountability?
Dr Olver asserted that the question was whether their task was to represent the councils or to provide strong district government. Some committee members felt that in terms of the constitution their task was solely to represent the councils and there should therefore be a right of recall. According to Dr Olver the department does not believe that there should be an automatic right of recall just because of the constitutional directive that they are nominated to represent their councils. This issue was also tagged for further discussion.
Section 25: Privileges and Immunities
The debate here revolved around whether this piece of national legislation could say that provincial legislation must be passed or whether it should be discretionary (i.e. that provincial legislation may be passed).
Dr Olver motivated the use of the word "must" because this would ensure consistency. One could not have some councils with immunity from prosecution while others did not have such immunity. MPs raised problems with the constitutionality of issuing such a directive. Section 161 of the constitution says that provincial legislation within the framework of national legislation may provide for privileges and immunities of Municipal Councils. Committee members thought that section 25 of the Bill did not sufficiently provide such a national framework and that the Bill should use the word "may". The issue was tagged for further discussion.
Performance Management at Local Government Level
UK consultants for the department, Geoffrey Fulton and Robert Chilton presented some of their initial findings and thoughts and asked the committee for comment on the way ahead.
Dr Olver first gave an overview of how the department was dealing with the issue of performance management. They have started work on a Municipal Systems Bill, the core of which will be a performance management system. They are looking at finding a structured mechanism whereby citizens can demand better services from local government.
On the advice of the UK their starting point is: what are the drivers for change in SA local government? They have identified the following drivers:
greater accountability between the council and the administration
internal culture of measuring performance
There is a need to develop a national indicator system so that performance can be measured in terms of indicators. The measurement will be done principally by municipalities with some outside oversight over the process.
There is a need to set performance targets and the need to audit the performance of municipalities. This audit should also deal with systems.
There should also be some agency highlighting who is doing well.
There is no clear regulatory framework for employment policies and administration and municipalities fall outside the Public Service Act.
Batho Pele (the Public Service programme of putting people first) therefore formally does not apply to local government and the question is how to introduce it at local level. The only regulation happens via bargaining councils.
The question of intervention must also be looked at. If municipalities consistently underperform how does intervention occur?
The debate on the institutional framework that will give effect to the above is still going on.
There is a constitutional obligation on national and provincial government to strengthen local government. This involves national policies on performance management. The key is getting more value from limited resources. It is possible to make significant improvements without additional resources, although it is a difficult task constructing national policies to give effect to this.
Local government must be clear on current priorities. Resources can then be realigned in line with these priorities, targets can be set, and performance can be measured.
1. There is a need for a limited number of performance indicators which must be used as a challenge rather than a judgement. Indicators facilitate communication, introduce purposeful action and make intervention more possible.
2. A necessary precondition for moving forward is the collection of all available data on local government. The data on local government is not reliable but if all the sources of data were pooled a clearer profile would emerge and decisions could then be taken about where action should occur.
3. One must celebrate best practice. Identify who is doing well and not just who is doing badly. One needs an umpire for this, an independent agency that could also act as a bridge to international best practice.
The above however, is necessary but not sufficient. It is also necessary to look at behavioral issues and incentives. Change cannot be optional and national policy must deal with resistance or passivity to change. Policy could look at how finance policy could be used to stimulate better performance and how to make public accountability a way of eliciting better performance. It is also important for mutually supportive polices across
the various government departments.
If all else fails what system of intervention should be adopted?
Questions by committee members:
Peter Smith (IFP): What is the core activity of local government and what can local government farm out perhaps to the private sector? Should rewards and incentives not be directed at individuals rather than councils?
Answer: In UK the core activities were defined as the delivery of services. Elsewhere it is defined as community leadership and the UK is changing towards this latter definition.
Agrees that there must be a mechanism for rewarding and motivating individuals.
Colin Eglin: (DP) Conceptually what system of intervention would they recommend?
Answer: It is easier to enter than to exit. The key is a clear diagnosis of the problem and a clear picture of what the intervention should achieve. There is no clear cut answer. Intervention sometimes needs to be subtle amounting more to capacity building than intervention.
Yunus Carrim (ANC): What is the response of Trade Unions?
What is their frank feeling about the state of local government in SA? Is it in a state of crisis?
What performance indicators are being developed in developing countries?
Answer: They have heard a lot of voices proclaim a sense of crisis but also a lot of motivation for change. Trade Unions in UK 15 years ago served to frustrate delivery. Now they have recognized that putting themselves in opposition to the public interest is suicide and they have been very impressive in some of the ways they have worked with government. The key in developing countries is for them to determine a limited number of clear objectives.
A final question was on the role of CEOs and political managers. The answer was that it is important to define the appropriate roles very clearly otherwise there can be confusion. Get a key list of functions for a CEO.
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