What the Constitution says about suspension of mayors

Local government and national government in Zimbabwe have a dramatic, turbulent and frictional history that has often seen the local government (particularly, executive mayors) being removed through suspensions. This piece will focus on the latest victim of this local government and national government “feud”, suspended Harare mayor, Bernard Manyenyeni and the judgment that upheld his suspension for allegedly unlawfully appointing James Mushore as town clerk without seeking approval from the Local Government Board.

Paul Kaseke

Source: What the Constitution says about suspension of mayors – NewsDay Zimbabwe May 19, 2016

Background
The previous Constitution did not deal with local government at all and certainly did not regulate the removal of councillors. Local government was, thus, dealt with exclusively by The Urban Councils Act (UCA). This broad piece of legislation dealt with almost everything under local government business, including the removal and suspension of councillors, which include the mayor for purposes of this article. The most notorious section of the Act is section 114 and it’s most notable victim is Elias Mudzuri, whose suspension was so indefinite it effectively became a dismissal.

The Constitution and local government
The Constitution now explicitly deals with and regulates local government and because it is the supreme law of the country, it overrides all other laws. In interpreting the Constitution, we must ask ourselves why the drafters saw it important to include it when it was previously left out. The answer to this is that a shift in reasoning and governance has taken place.

One of the most fascinating aspects of the Constitution is that unlike the previous one, it envisages an express devolution of powers from central government to local government. There is no more room for appointments by the minister in respect of local government because the Constitution requires that such offices be exclusively occupied by elected officials. Given that Harare, in particular, was run by appointed commissions for a long time, it is clear that the intention of the drafters of the Constitution was to prevent appointment of commissioners or authorities.

The UCA and the Constitution are worlds apart and anyone who tries to reconcile the two does so to the detriment of sound logic and legal reasoning. This is so because the UCA is based on a now extinct idea of ministerial superintending in respect of Local Government but the Constitution does not subscribe to that same notion, in fact, it opposes it in no unclear terms. My proposition is that ministerial supervisory role that resulted in suspensions and dismissals by the minister, simply does not exist post the 2013 Constitution.

The Constitution does not envisage or allow for the Local Government minister to exercise any substantive power over councils at all. The evidence of this is seen in section 274(2)which reads, “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”. The minister does not share this management authority concurrently with the councils, nor does he enjoy any measure of control over them. Unfortunately or fortunately, those powers no longer rest with the minister and to construe this otherwise is to play on a legal fiction and to undermine the Constitution’s idea of devolution of power. One could, in fact, say the role of the minister is now constitutionally redundant because it is impossible to think of any meaningful or substantive role being played by a Local Government minister. This thinking is consistent with the power conferred to local government by the Constitution to govern without interference and remain autonomous from central government.

It would seem to me that post 2013, the powers purportedly exercised by the minister are actually snatched from the provincial and local authorities, albeit contrary to the Constitution. Interestingly, the only reference in the Constitution to the minister in the entire chapter dealing with local government (sections 274-279) is in section 278(1) alludes to the minister playing the same role as the President of the Senate or Speaker of Parliament when a seat becomes vacant on the grounds listed in section 129 of the Constitution. The Constitution only envisages the minister receives notices from political parties to inform him if a councillor is no longer with a party.

The judgment that was
The judgment in the case of Manyenyeni is a tragic miss to correct the tension between local and central government, but it also fails to capture the transformational power of the Constitution. With respect, the judgment betrays the Constitution and what effectively is the voice of the people that voted for it. Justice Mary Dube, who ruled in favour of the minister, essentially found that the Constitution did not make reference to the word “suspension” and in the absence of that, section 114 continues to apply only in as far as suspensions are concerned. Again, with respect, that interpretation is inappropriate and inconsistent with the Constitution.

One of the most obvious flaws of the judgment is the reliance on a flawed interpretational approach to interpret section 278 of the Constitution. The ordinary grammatical rule, which the judge used, is highly inappropriate for the interpretation of any constitution. The court should have used the purposive approach, which seeks to determine what the purpose of the provision is. Nevertheless, the court found that suspension is a part of a regiment meant to eventually end with an investigation, leading to a dismissal in terms of section 114. The court also found that the suspension would be rendered useless because the power to dismiss rests with the independent tribunal that should be created by an Act of Parliament (which at the time of litigation did not exist). It would, thus, mean that the suspension would lead nowhere, as there is no dismissal that is possible at this stage (since there is no tribunal).

The suspension is, thus, a punitive exercise that serves no other purpose in our legal framework. The judge conceded to and reconciled herself to that logic but still upheld a suspension that serves no legitimate or lawful purpose and therein lies another fatal error. To uphold the suspension that serves no legal purpose is to create an absurdity that is not justifiable in law.

He with the power to dismiss, inadvertently has the power to suspend and he without the power to dismiss, cannot logically be said to have the power to suspend. A suspension cannot be lawful when it operates outside a staggered disciplinary process. It, therefore, makes no sense that the judgment upheld a suspension that is on the face of it, baseless and unlawful. Interpreted correctly, the power to suspend will only resurrect when an independent tribunal is created and given effect to by an act of parliament. Even when such power resurfaces, it will not and cannot be exercised by the minister, as that would be contrary to the Constitution.

The purpose of section 278 is quite clear: nobody should be able to dismiss or interfere with local government operations and this is what autonomy entails, but the judge gives the minister free rein to do exactly what the Constitution intended to prevent. The judgment can aptly be said to be anti-devolutionary.

There is no jurisdiction that has a devolution of power and yet allows the Local government minister to suspend an elected councillor or mayor. The power is inconsistent with the idea of devolution.

Another one of the failings of the judgment is its incorrect application of the “constitutional conformity” test, wherein laws must conform to the Constitution or be declared invalid to the extent of their invalidity. The judgment gives the impression that it is the Constitution that must be read into section 114 or the Act more generally. That is not correct. If this test had been applied by the learned judge correctly, then the result would be that the section, in its entirety, cannot be spared from a conclusion of invalidity and this was indeed the case in the other two cases, where the minister purported to suspend the mayors of Bulawayo and Gweru.

Even if we assumed that the suspension was within the ambit of the minister, it raises the question of the validity of the charge against which the suspension was made. Section 114 allowed/allows the minister to suspend on established grounds but none of them match the charge. The suspension letter purported to suspend the mayor on the ground that he appointed the town clerk without going through the Local Government Board. The powers and the existence of that board died a “constitutional death” by the simple fact that the Constitution distributes the powers previously enjoyed by the board and gives them to either The tribunal or the councils themselves. In essence, the minister suspended the mayor on the basis that he appointed a town clerk without the approval of a body that no longer exists nor has a function according to the Constitution. That duty to go through to the Local Government Board, as set out by the UCA, is unconstitutional and, therefore, unlawful. The suspension, therefore, cannot possibly be valid because the charge itself is not valid. That board became unconstitutional and non-existent from the time that the Constitution was adopted.

We should ideally start seeing less cases of suspension of mayors in the future if the Constitution is given effect to. It is encouraging that two out of the three cases dealing with the suspensions of mayors, thus, far have largely endorsed the positions discussed in this piece. What of course remains to be seen is the political will to give effect to these judgments and the Constitution.

l Paul Kaseke is a senior lecturer a Wits University in South Africa