Constitution Watch 10-2016

CONSTITUTION WATCH 10/2016

[5th June 2016]

Constitutional Alignment: Local Government

The Local Government Laws Amendment Bill – Part II

Introduction

In Constitution Watch 9/2016 [The Local Government Laws Amendment Bill – Part I] we analysed the Local Government Laws Amendment Bill, which will amend the Rural District Councils Act and the Urban Councils Act to provide for the suspension and removal from office of mayors, chairpersons and councillors of local authorities in accordance with section 278 of the Constitution.  We noted that the Bill failed to touch many other provisions of the two Acts which need to be aligned with the Constitution.

In this Constitution Watch we list those provisions, but first we shall set out briefly the constitutional provisions to which the two Acts must be aligned.

The Constitution

Chapter 14 of the Constitution deals with provincial and local government.  It starts with a statement that governmental powers and responsibilities must be devolved wherever appropriate to local authorities which are capable of exercising them [section 264].  Section 265 goes on to set out general principles of local government, among which are the following:

All members of local authorities must be elected by registered voters within their areas.

An Act of Parliament must provide procedures to facilitate co-ordination between central government and local authorities.

Section 266 of the Constitution states that employees of local authorities must not be politically partisan and “must not be office-bearers of any political party”.  Parliament is required to enact legislation to ensure their political neutrality.

Section 276 sets out the functions of local authorities:  every local authority, urban or rural, “has the right to govern, on its own initiative, the local affairs of the people within the area for which it has been established, and has all the powers necessary for it to do so.”

Other parts of the Constitution also impinge on local government.  For example, under section 161 responsibility for delimiting wards is vested in the Zimbabwe Electoral Commission.

Inconsistencies between the Constitution and the Urban and Rural District Councils Acts

Both the Urban Councils Act and the Rural District Councils Act are inconsistent with the Constitution in many respects [In what follows we shall call the Urban Councils Act “the UC Act” and the Rural District Councils Act “the RDC Act”]:

Establishment and alteration of districts

Sections 6 and 7 of the RDC Act give the President power to establish and alter the boundaries of districts.  No mention is made of the Zimbabwe Electoral Commission, which must be consulted in terms of section 267(2) of the Constitution.

Delimitation and alteration of ward boundaries

Section 4 of the UC Act and sections 8 & 139 of the RDC Act give the President power to divide council areas into wards, to determine their boundaries and to alter ward boundaries.  Under section 161 of the Constitution, this is the function of the Zimbabwe Electoral Commission, not the President.

Appointment of councillors

The Minister has power to appoint councillors [section 4A of the UC Act and sections 11 & 31 of the RDC Act].  Under section 265 of the Constitution all councillors in urban and rural local authorities must be elected.

Excessive and Unconstitutional Ministerial Control over Local Authorities

Although section 276 of the Constitution gives every local authority the right to govern its local affairs “on its own initiative”, i.e. without interference from the central government, the Minister of Local Government can interfere greatly in their affairs, particularly in the following ways:

In the case of rural district councils, by appointing their officers [section 66 of the RDC Act].

In the case of urban councils, by giving policy directives to the Local Government Board, which has the function of approving conditions of service of councillors and employees and of vetting the appointment of senior staff [section124 of the UC Act].  Conditions of service of other staff must be approved by the Minister of Labour rather than fixed under the Labour Act [section 138 of the UC Act].

By reversing, suspending or rescinding their resolutions and decisions [section 314 of the UC Act and section 52(3) of the RDC Act].

In the case of rural district councils, by requiring them to obtain his approval before passing resolutions [section 53 of the RDC Act].

By giving them policy directives as to the actions they may take [section 313 of the UC Act and section 155 of the RDC Act].

By exercising the power to approve or disapprove [i.e. to veto] their by-laws [section 229 of the UC Act and section 90 of the RDC Act].

By making by-laws on their behalf [section 233 of the UC Act and section 94 of the RDC Act].

By controlling their finances, particularly through the power:

to approve or disapprove their long-term and short-term borrowing [section 290 of the UC Act and section 124 of the RDC Act];

in the case of urban councils, to levy rates on their behalf in order to repay their loans [section 315 of the UC Act];

in the case of rural district councils, to require them to levy rates in order to repay loans [section 97 of the RDC Act];

to approve or disapprove their income-generating projects [section 221 of the UC Act and section 80 of the RDC Act].

By ordering them to develop commercial, industrial or residential estates [section 206 of the UC Act and section 87 of the RDC Act].

Generally, by compelling them to take action they are supposed to take [section 315 of the UC Act and section 156 of the RDC Act].

Conclusion

In this Constitution Watch we have listed only the more important provisions of the UC Act and the RDC Act which are inconsistent with the Constitution.  There are a great many others which allow the Minister of Local Government to intervene in the affairs of local authorities – so many, in fact, that both Acts exhibit a profound distrust of local authorities and subject them to strict Ministerial Control.  Such a distrust is inappropriate in the light of our new Constitution, which envisages a considerable increase in devolution of power and makes provisions for considerable responsibility and autonomy for local authorities.

Local authorities need oversight from the central government, because both in this country and elsewhere some of them have proved to be incompetent, extravagant and corrupt.  Nonetheless, the powers given to the Minister under the UC Act and the RDC Act are excessive and unconstitutional.  The Local Government Laws Amendment Bill does nothing whatever to remove or even limit the Minister’s powers.  It is to be hoped that during the Bill’s passage through Parliament it will be amended to remedy this.  This will restore confidence in the Government’s oft-repeated assertion of its intention to implement the Constitution.

Note: in 2014 the Ministry of Local Government published a draft Local Authorities Bill for public discussion.  It was not a very satisfactory Bill and in the light of considerable public and expert criticism of it the Ministry undertook to revise it.  It was wider in scope than this present Bill and parliamentarians could question why it has taken so long to see the light of day.

The Current Bill, the 2014 draft Bill, the Constitution, the Rural District Councils Act and the Urban Councils Act can all be downloaded from the Veritas Website

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