BILL WATCH 19/2018
10th September 2018
Inauguration of New Local Authority Councils
Following our two previous bulletins about the post-election inauguration of the President and Parliament, this bulletin discusses the inauguration of the new local authority councils and outlines the relevant constitutional and statutory provisions.
Previous councillors’ term of office ended on the eve of the general elections
All existing councillors went out of office at midnight on 29th July, the day before polling day, i.e., at the same time that Parliament stood dissolved and members of Parliament went out of office [Constitution, section 278(1) as read with sections 129(1)(a) and 143(1)].
The successful candidates for the relatively small number of uncontested council seats had been known from 14th June, when nomination courts sat and unopposed candidates were declared duly elected as councillors with effect from polling day, 30th July. On 31st July the results of the elections for the contested seats were announced and the winning candidates declared duly elected as councillors with effect from that date.
Contested seats elected in general elections of 30th July
The election of new council members for local authorities throughout the country was an important component of the 30th July harmonised elections. Results were declared at ward level on 31st July.
What Should have Happened Next
Assumption of office of councillors
The Constitution section 277(3) states that the assumption of office by councillors, the election of council mayors and chairpersons, and the first post-election meetings of councils, should take place on the ninth day after the announcement of the results of the general election in which they were elected. This would have been the 9th August.
The role of the Minister
The Minister of Local Government, Public Works and National Housing and his officials should have taken steps, even before then, to do whatever was required to allow the councillors to function as such and collectively as councils with effect from, or as soon as possible after, that date, i.e. 9th August.
Note: until President Mnangagwa started his new Presidential term on 26th August all outgoing Ministers continued in office, including the Minister responsible for local government, the Minister of Local Government, Public Works and National Housing [Constitution, section 108(4)].
At the First Meetings of Local Authorities
On August 9th local authority councils should have met for:
Swearing in of Councillors
Section 48(3) of the Urban Councils Act [UCA] requires all councillors, before undertaking their duties, to take the prescribed oath of loyalty and office before the town clerk. The town clerk must, therefore, swear in councillors before the first meeting.
Election of mayors or chairpersons and their deputies.
This first meeting must elect a mayor or chairperson [Constitution, section 277(2)]. Until these officers are elected, the meeting must be chaired by the appropriate provincial administrator [Harare and Bulawayo city councils] or district administrator [other councils] [UCA, section 103].
Section 265(2) states that “all members of local authorities must be elected by registered voters within the areas for which the local authorities are established”. As mayors and chairpersons are members of the council, this can be taken to mean that they must have been elected by the voters in their respective areas.
Note: the UCA section 103 states that a city or municipal council may elect a councillor “or other person” as mayor, while the chairperson of a town council must be a councillor. This section of the UCA has not yet been aligned with the Constitution and the Constitution overrules it.
Delay in Inaugurating Councils
It was only last week that urban and rural district councils started having their inaugural meetings and electing their mayors or chairpersons and deputies. Harare City Council, for instance, had its meeting on Monday 3rd September and elected a mayor and deputy mayor. Other councils have since followed suit. Bulawayo City Council’s meeting had to be adjourned to 7th September because the council chamber proved too small to accommodate the large number of members of the public who wished to attend. Gradually, therefore, councils are being activated.
The delay of more than a month between the declaration of the council election results and these inaugural meetings has left local authorities without functioning councils, pending the swearing-in of councillors and the holding of the inaugural meetings at which the first business must by law be the election of mayors or chairpersons and their deputies.
Appointment of caretakers in absence of functioning councils
In the cases of Harare City Council and Chitungwiza Municipal Council the situation has been complicated by the appointment by the Minister of Local Government, Public Works and National Housing of “caretakers” or “commissions” to function in place of the councils for the time being. This was announced by the Herald on 10th August. The explanation given was that there should not be a vacuum in the running of council affairs. As the councils should have been sworn in on 9th August this seemed unnecessary and can only lay an extra expense onto already cash-strapped councils.
Although the Minister cited Section 80 of the UCA as empowering these appointments, it should be noted that that section empowers the Minister to appoint caretakers to act in place of a council, only when:
· there are no elected councillors for a council area, or
· all the elected councillors are unable to exercise all or some of their functions.
Any appointment of caretakers automatically lapses as soon as there are elected councillors who are able to function.
Court challenge to Harare and Chitungwiza Caretakers
Concerned residents’ associations took the Ministry and the town clerks to the High Court last week, challenging the validity of the Minister’s appointment of caretakers for Harare and Chitungwiza and the delay in getting the councils up and running. They pointed to the constitutional provision for councillors to assume office on 9th August. The presiding judge gave the Ministry and other respondents a week in which to respond on the issue of whether this was an urgent matter and on the merits; the outcome is awaited. As both Harare and Chitungwiza now have duly sworn-in elected councillors able to function and have demonstrated this by electing their mayors and deputy mayors, both caretaker appointments have lapsed by operation of law, and the court application may have become academic.
It would, nevertheless, be of interest to know what official explanation, if any, was given to the court – and whether it was in accordance with the constitutional and statutory provisions.