CONSTITUTION WATCH 9/2016
[4th June 2016]
Constitutional Alignment: Local Government
The Local Government Laws Amendment Bill - Part I
Ever since the Constitution came into operation three years ago the country has been waiting for the Rural District Councils Act and the Urban Councils Act, among other statutes, to be amended so as to devolve powers to local authorities and accord them the independence they are entitled to under Chapter 14 of the Constitution. The Local Government Laws Amendment Bill, which the government gazetted on 9th May, should have provided for this, but it doesn’t. All it does is to amend the two Acts to allow for the setting up of a tribunal to deal with the removal from office of mayors and councillors.
In Constitution Watch 7/2016 of 11th May we commented on attempts by the Minister of Local Government, Public Works and National Housing to suspend the mayor of Harare and the mayor and councillors of Gweru. As we reported, the mayors and councillors brought court applications challenging their suspensions; and while the Bulawayo High Court declared the suspension of the Gweru mayor and councillors to be unconstitutional, the suspension of the mayor of Harare was declared valid by the High Court in Harare.
To recap the legal issues involved: section 278 of the Constitution sets out the sole grounds on which mayors and councillors can be removed from office and states that an Act of Parliament must provide for the establishment of an independent tribunal to remove them. So far, no Act provides for the setting up of such a tribunal. Section 114 of the Urban Councils Act gives the Minister of Local Government power to suspend mayors and councillors for up to 45 days while their conduct is being investigated, and allows the Minister to dismiss them if the investigation shows they were guilty of gross mismanagement of their councils’ affairs.
The High Court in Bulawayo held that in the absence of an Act of Parliament allowing an independent tribunal to be established, as envisaged by the Constitution, the mayors and councillors of Gweru could not be dismissed and so there could be no valid reason for their suspension. The High Court in Harare, on the other hand, said the mayor of Harare could be suspended but the suspension would lapse after 45 days unless the law was amended to provide for the establishment of a tribunal to decide whether or not the mayor should be removed from office.
Now the government has gazetted the Local Government Laws Amendment Bill, in an attempt to effect this amendment. The Bill has not even been presented in Parliament yet so it cannot be used against the mayor of Harare, whose suspension comes to an end today, the 4th June.
Contents of Bill
The Bill will amend the Rural District Councils Act and the Urban Councils Act. [The amendments to each Act are very much the same and deal with the removal from office of mayors, chairpersons and councillors; for ease of reference we shall refer to them simply as “councillors”]
The substance of the amendments are as follows:
They will restate the constitutional grounds for dismissing councillors, namely inability to perform their functions, gross incompetence, gross misconduct, conviction of an offence involving dishonesty, corruption or abuse of office, or wilful violation of the law.
The Minister will be empowered to suspend councillors if he or she has reasonable grounds for suspecting they are liable to be dismissed on the above grounds.
After a councillor has been suspended the Minister will have to cause a “thorough investigation” to be conducted into his or her conduct within 45 days.
If the investigation throws up evidence which the Minister considers justifies the dismissal of the councillor, he or she will constitute a tribunal consisting of:
a chairperson chosen by the Minister from a list of lawyers nominated by the Judicial Service Commission, and
two other members appointed by the Judicial Service Commission from a list of persons who are experienced in local government and nominated by the Minister – though if the allegations against the councillor involve financial impropriety one of the members must be a registered accountant.
Within 30 days after completion of the investigation, the tribunal will have to inform the councillor of the allegations against him or her, calling on him or her to reply to them in writing within 14 days.
If the tribunal considers the councillor has a case to answer it will convene a hearing into the allegations. The hearing will be less formal than court proceedings, but “substantial justice” must be done. This means that the tribunal must treat the councillor fairly.
If the tribunal determines that the councillor is guilty of “misconduct”, he or she “will be deemed to be removed from office on the date of that determination”.
If the tribunal suspects that the councillor may be guilty of something other than the conduct alleged against him or her, it may refer the matter back to the Minister for further investigation.
The tribunal will be able to impose a civil penalty on a councillor found guilty of misconduct, to compensate his or her local authority for loss of money or property for which the councillor was responsible. Such an order will “constitute a debt due by the [councillor] to the local authority”.
Decisions of the tribunal will be final [i.e. not subject to appeal] but may be reviewed by the High Court. A review in this sense entails a formal civil application to the High Court by a councillor who is aggrieved by a tribunal’s decision.
Defects in the Bill
The Bill is not very well drafted. For example, it will insert a new Fourth Schedule into the Urban Councils Act which will do duty for the Rural District Councils Act as well, so anyone who wants to find out how rural district councillors are suspended and dismissed will have to look at both Acts rather than just one.
More substantially, however, the Bill is defective in the following respects:
First and foremost, it tries to align the two Acts with the Constitution only in regard to the suspension and dismissal of councillors. It does nothing to bring numerous other provisions in the Acts into line with the Constitution. [We shall list these other provisions in Part II.]
Unlike the current provisions in the two Acts, which specify a 45-day limit to a councillor’s suspension, the amendments in the Bill do not set any time limit. In the absence of a time-limit, it seems that the Minister can keep a councillor on suspension even if he or she is exonerated by the tribunal. This would be unconstitutional, because a councillor cannot represent his or her ward while on suspension thereby reducing the effectiveness of the council itself. A council whose members can be suspended indefinitely is not independent as envisaged by the Constitution.
As already noted, a councillor will be removed from office automatically if the tribunal finds him or her guilty of “misconduct”. The term is not defined, and it could be construed as being wider than gross misconduct, gross incompetence, conviction of an offence involving dishonesty, or any of the other grounds set out in section 278 of the Constitution as the sole grounds for the removal of councillors. If the Bill is so construed it would be unconstitutional.
Decisions of the tribunal are not subject to appeal, where an appeal court could look at the merits of the tribunal’s decision; but only to review by the High Court, in which the court can set aside the tribunal’s decision only for procedural defects. This is particularly important in regard to the civil penalties the tribunal will be able to impose, because a councillor will not be able to dispute the amount of the penalty unless it is so grossly unreasonable that no tribunal acting properly could have imposed it.
The Minister of Local Government will be able to amend the new Fourth Schedule by statutory instrument, subject to obtaining parliamentary approval. It is not clear why he should be able to do this, since the schedule deals with the procedure to be followed by the tribunal. One of the provisions of the schedule, noted above, states that “substantial justice” must be done by the tribunal: surely that provision should never be amended? It is usually undesirable for Ministers to have power to amend Acts of Parliament, and in this case it could allow the Minister to change the procedural rules in order to prevent councillors from refuting the charges against them.
It is apparent from what has been said above that the Bill is unsatisfactory, and quite probably unconstitutional, in several respects. Indeed, perhaps its only satisfactory aspect is that it cannot now affect the suspension of the mayor of Harare, which lapses today, the 4th June.
The Bill’s inadequacy in bringing the Rural District Councils Act and the Urban Councils Act into line with the Constitution will be dealt with in Part II.
The Local Government Laws Amendment Bill, the Constitution,
the Rural District Councils Act and the Urban Councils Act referred to above
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