HH 07-23 COMBINED HARARE RESIDENCE ASSOCIATION AND OTHERS V MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS AND NATIONAL HOUSING

274 Urban Local Authorities

            (1) There are urban local authorities to represent and manage the affairs of people in urban areas throughout Zimbabwe. 

(2) Urban local authorities are managed by councils composed of councillors elected by registered voters in the urban areas concerned and presided over by elected mayors or chairpersons, by whatever name called.

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            276 Functions of local authorities

(1) Subject to this Constitution and any Act of Parliament, a local authority 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.

            (2) An Act of Parliament may confer functions on local authorities, including—

            (a) a power to make by-laws, regulations or rules for the effective administration of the areas for which they have been established;

      (b) a power to levy rates and taxes and generally to raise sufficient revenue for them to carry out their objects and responsibilities.”

 

            The above provisions of the Constitution assert the powers of urban local authorities in a representative capacity to manage the affairs of the people in urban areas. This means that the elected representatives take charge of the people’s affairs. Section 276 enhances the powers by stating that a local authority has the right to govern on its own initiative the local affairs of the people within its area and has all the powers to do so subject to the Constitution and any Act of Parliament. There can be no clearer provision on the mandate of a local authority. The constitutional conferment of managerial and governance powers on urban local authorities is sacrosanct as it is premised on the will of the people who in a participatory manner elect representatives to make decisions on their behalf pertaining to their social welfare and general affairs in their locality. That sanctity is defiled when the respondent moru mero and in his view decides that, that which has been decided by the people through their elected representatives is not in their interests. The whole purpose of devolution is in the court’s view premised on bringing power to the people by way of cascading governance through the tiers of government.

            Central to the objectives of devolution is the giving of power of local governance to the people and enhancing their participation in the exercise of the powers of the state in making decisions affecting them. The right of communities to manage their own affairs and further their development coupled with the transfer of responsibility and resources from national government with the aim of establishing a sound financial base for each province, metropolitan and local authority as provided in s 264 of the Constitution can only be fostered by ensuring the independence of these tiers of government. In fact, such participation in governance at different levels fosters peace and unity amongst the people of Zimbabwe as contemplated by s 264 of the Constitution given that communities are in charge of their affairs and enjoy the democracy brought about by the revolutionarised Constitution borne out of their participation. The section further calls upon the provincial, metropolitan and local authorities to carry out their responsibilities efficiently and effectively in a transparent accountable and coherent manner.  In essence local authorities have full powers to run their affairs and determine what is in the interests of the local communities and ultimately feeding into the public and national interest hence the demand to carry out their responsibilities efficiently and effectively.

 Given the aforegoing, the provisions of  s 314 of the Act which singularly give unfettered powers to the Minister to reverse, suspend, rescind resolutions or decisions made by the people through their democratically elected representatives can only be ultra vires the Constitution more particularly the decision being taken by an individual without consultation whatsoever. Such overriding powers which have no checks and balances are a danger to democracy as enshrined in the Constitution particularly given the objectives of devolution as outlined in Chapter 14 of the Constitution. It is tantamount to disregarding the will of the people as constitutionally provided through the democratic election of representatives sitting in the local authorities. Given the aforegoing there is absolutely no justification for the existence of s 314 of the Act in the form it is hence counsel for the respondent was at pains to justify its existence citing s 265(3) of the Constitution whose provisions do not speak to the Minister’s actions. Finally s 314 of the Urban Councils Act [Chapter 29:15] fails the constitutionality test when juxtaposed against ss 264(2), 265(1) and (2), 274 and 276(1) of the Constitution. The provisions of that section are ultra vires the constitution hence are declared invalid.

It is therefore ordered as follows:

  1. Section 314 of the Urban Councils Act [Chapter 29:15] is ultra vires the provisions of  ss 264(2), 265(1) and (2), 274 and 276(1) of the Constitution of Zimbabwe and is hereby declared invalid.
  2. The respondent to pay costs.

The court is cognizant of the further progression of the matter vis confirmation of the order in terms of s 175 of the Constitution as read with s 31 of the Constitutional Court Rules.

 

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2023