COURT WATCH 2/2023

[14th January 2023]

Limiting Central Government’s Powers Over Local Authorities

A Step Towards Devolution?

On the 11th January the High Court delivered a judgment which, if confirmed by the Constitutional Court, will go some way to preventing undue interference by the central government in decisions of local authorities.

The judgment was delivered by Judge Munangati-Manongwa in the case of Combined Harare Residents Association & Others v Minister of Local Government, Public Works and National Housing HH-07-23, a case commissioned by Veritas and argued by Mr Tendai Biti.  The judgment can be accessed on the Veritas website [link].

Background

The applicants were two Harare residents’ associations together with a city councillor and two other residents.  They applied to the High Court for an order that section 314 of the Urban Councils Act, which gives the Minister of Local Government, Public Works and National Housing power to direct councils to rescind their resolutions and decisions, was unconstitutional.

The case originated in a dispute between the Minister and the Harare City Council over a contract to convert waste to electricity at a dumpsite at Pomona.  The Council had concluded a contract with a company called Geogenix BV to process waste at the dumpsite.  Following an election, a new Council cancelled the contract on the grounds that it had been entered into as a result of undue pressure from the Minister and his officials and that its terms were seriously prejudicial to the City of Harare.  The Minister responded by directing the Council to rescind its resolution cancelling the contract.

Although the case had its origins in the dispute over the waste processing contract, the applicants sought only an order that section 314 of the Urban Councils Act was unconstitutional;  they were not asking the court to set aside the contract.  Hence the learned Judge dismissed an objection raised by the Minister’s lawyer, that the Council and Geogenix should have been made parties to the case because they had an interest in it.  The judge said, rightly, that the only issue the Court had to decide was whether section 314 of the Urban Councils Act violates the Constitution.

The Decision

Section 314 of the Urban Councils Act reads as follows:

“(1)  Where the Minister is of the view that any resolution, decision or action of a council is not in the interests of the inhabitants of the council area concerned or is not in the national or public interest, the Minister may direct the council to reverse, suspend or rescind such resolution or decision or to reverse or suspend such action.

 (2)  Any direction of the Minister in terms of subsection (1) to a council shall be in writing.

 (3)  The council shall, with all due expedition, comply with any direction given to it in terms of subsection (1).”

The learned Judge held that the section was unconstitutional for the following reasons:

Any power exercised by a Minister must have a legal basis;  it must comply with the law both procedurally and substantively.  This is the principle of legality, a component of the rule of law.  Hence the Minister could issue directives under section 314 only if section 314 itself is valid, i.e. conforms with the Constitution.

The concept of devolution, with power cascading to local communities, is an essential constitutional value expressed in section 3(2)(l) of the Constitution and in the preamble, which speaks of “the democratic participation in government by all citizens and communities”.

Section 314 gives the Minister arbitrary power to order a council to rescind its decisions;  the section makes no provision for consultation with inhabitants if the Minister considers a council’s decision not to be in their interests, and there is no objective mechanism by which the Minister decides whether or not a council’s decision is in the public interest.

The Constitution in sections 264, 274 and 276 confers governing and management powers on local authorities, and those powers should not be interfered with clandestinely;  they should rather be fostered by ensuring the independence of local authorities.

The overriding powers conferred on the Minister by section 314 of the Urban Councils Act are a danger to democracy as enshrined in the Constitution.

Section 265(3) of the Constitution, which states that an Act of Parliament must provide mechanisms to facilitate co-ordination between central government and local authorities, cannot justify section 314 because the power to reverse, suspend or rescind council resolutions are drastic actions that do not form part of mechanisms that facilitate co-ordination between the different levels of government.

Confirmation of the Judgment

In terms of section 175 of the Constitution the judgment has no effect until it is confirmed by the Constitutional Court.  The procedure for confirmation is laid down in rule 31 of the Constitutional Court Rules:

The Registrar of the High Court must file a copy of the record of the proceedings (including the judgment) with the Constitutional Court within 14 days after the judgment is delivered.

Then the Registrar of the Constitutional Court must call on the parties (the residents associations and other applicants, and the Minister) to file heads of argument, and

Then the case is set down for the Constitutional Court to hear the parties’ arguments and to decide whether or not to confirm the judgment of the High Court.

The Registrar of the High Court has sent the record to the Constitutional Court and the parties have been called on to file their heads of argument.  The applicants are in the process of filing theirs and in due course they will be told when they are to appear before the Constitutional Court to deliver their arguments.

Effect of the Judgment

The Constitutional Court is likely to confirm the judgment, because its correctness is beyond argument.  The Minister’s arbitrary power to override decisions of a local authority is so clearly contrary to the concept of devolution envisaged by the Constitution that it is difficult to see the Constitutional Court coming to a different conclusion from that reached by the learned Judge.  The Constitutional Court may however take some time to confirm the judgment, so we need to look at what legal effect the judgment has now, before it is confirmed by the Constitutional Court, and what effect it will have after confirmation.

Effect of judgment before it is confirmed

In terms of section 175 of the Constitution the judgment “has no force” unless it is confirmed by the Constitutional Court.  However, that does not mean that section 314 of the Urban Councils Act is valid until the Constitutional Court declares it to be unconstitutional, because section 2(1) of the Constitution states that any law inconsistent with the Constitution is invalid to the extent of the inconsistency.

There is no conflict between sections 175 and 2(1) of the Constitution, because they deal with different things:  the legal force of a court order declaring a law to be unconstitutional (in this case, the judgment we are considering) and the validity of an unconstitutional law (in this case, the Urban Councils Act).  Read together, the two sections mean this:

The judgment has no force until it is confirmed by the Constitutional Court.  It is not authoritative and cannot be relied on to prove that the Minister has no power to order local authority councils to rescind their decisions.  The judgment, in other words, is suspended until it is confirmed.

Section 314 of the Urban Councils Act is invalid because, as a matter of law, it is inconsistent with the Constitution – and it has been invalid ever since the Constitution was enacted in 2013.  However, the section remains on the statute book and there is a presumption that all statutory provisions are constitutional, so if the Minister directs a council to rescind a decision, anyone aggrieved by the Minister’s directive will have to go to court for an order setting it aside – and they will have to prove all over again that section 314 is unconstitutional.  They will have no difficulty in proving this, of course, so the Minister would be very ill advised to issue directives under the section.

Effect of judgment after confirmation

Once the Constitutional Court has confirmed the judgment, all our courts and everyone else will have to accept that section 314 is invalid, and has been so since 2013.

They will also have to accept that some other statutory provisions are definitely or at least probably unconstitutional:

Section 52(3) of the Rural District Councils Act is the equivalent of section 314 of the Urban Councils Act:  it gives the Minister power to order rural district councils to rescind or alter their resolutions.  It is certainly unconstitutional.

Section 53 of the same Act allows the Minister to direct that council resolutions must be approved by him or her before they can be put into effect.  This provision too is unconstitutional.

Section 313 of the Urban Councils Act allows the Minister to give councils general directives on matters of policy;  this may well infringe the constitutional right of councils to govern their affairs on their own initiative.

Conclusion

The judgment, if confirmed by the Constitutional Court, will be a valuable addition to our constitutional jurisprudence.  Even in its unconfirmed state it serves as a wake-up call to the Government to align the Urban Councils Act and the Rural District Councils Act with the Constitution.

Devolution and decentralisation of power are founding constitutional values, but ten years after the Constitution was enacted virtually nothing has been done to devolve power from central government to provincial and local authorities.  It is high time the Government and Parliament took up this important task.