Source: Saviour Kasukuwere sees light | The Financial Gazette May 19, 2016
THE Minister of Local Government, Saviour Kasukuwere, has gazetted a Bill that seeks to align with the Constitution the provisions of the laws that he administers.
Last week, Kasukuwere gazetted the Local Government Laws Amendment Bill, whose purpose is to align certain provisions of the Rural District Councils Act and the Urban Councils Act with section 278(2) and (3) of the Constitution — provisions which regulate the removal from office of mayors, rural district council chairpersons and urban and rural district councillors.
The move by Kasukuwere appears to have been caused by the realisation of legal challenges that stand in his way to permanently get rid of Harare mayor, Bernard Manyenyeni, as well as Gweru mayor Hamutendi Kombayi.
There have been suggestions that the ZANU-PF national commissar plans to replace opposition-dominated Movement for Democratic Change (MDC-T) councils with special commissions run by nominees of his ruling party as part of its elaborate groundwork for the 2018 elections.
Under the country’s new Constitution unveiled in 2013, elected local council office-bearers may only be removed from office only by an independent tribunal provided for by an Act of Parliament.
The outmoded Acts — which Kasukuwere relied on to suspend Manyenyeni and the entire Gweru City council — do not provide for the removal of elected councillors by an independent tribunal.
They provide for suspension and removal of councillors by the Minister of Local Government, Public Works and National Housing.
This has led to High Court battles between the minister and Kombayi and his councillors in Gweru, and Manyenyeni in Harare.
In the Gweru case, the High Court ruled that the Urban Councils Act’s provision was unconstitutional and void as to both suspension and removal from office.
Kasukuwere, however, simply ignored the two High Court rulings.
In the Harare case, a different High Court judge agreed there was no valid provision for removal from office, but upheld the validity of the 45-day suspension, adding that it would fall away at the end of the 45 days.
The Bill is government’s response to this situation.
It provides for suspension of an elected councillor by the minister; investigation of whether there is sufficient evidence for the issue of removal from office to be referred to an independent tribunal; and the setting of up of an ad hoc tribunal where the minister sees fit after an investigation to pursue the issue of removal.
Manyenyeni was suspended on April 21 for appointing banker James Mushore to the vacant position of town clerk without consulting the Local Government Board (LGB) as stipulated by the Urban Councils Act.
The Harare Council acted on the basis of the new national charter, which states that local authorities are free to make appointments without consulting the minister or the LGB.
Manyenyeni’s 45-day suspension expires in June, raising questions about what would happen to him.
The process of aligning the local government laws with the Constitution can take several months to complete and its only after the alignment that a legally binding process to remove Manyenyeni from office could start.
However, there are also several other legal bottlenecks that Kasukuwere faces.
Last week, legal and legislative watchdog, Veritas, published a detailed commentary of the legal hurdles Kasukuwere faces in getting rid of Manyenyeni and other elected councillors.
“The minister’s claim stretches the meaning of section 114 to the limit and, perhaps, beyond. It is hard to see how appointing a town clerk without approval amounts to ‘gross mismanagement’ unless the person appointed is so obviously unsuitable that no reasonable councillor would have dreamt of appointing him — and no one has suggested that that was the case here.
“The minister’s case becomes even shakier when one considers the rest of section 114 of the Act. It will be remembered that the section is headed ‘Suspension and dismissal of councillors’, and it goes on to say that after a councillor has been suspended the minister must cause the matter to be investigated within 45 days; if the investigator’s report establishes the grounds for the suspension, the minister may dismiss the councillor from office. So section 114 of the Act does not allow the minister to suspend a mayor or councillor and then do nothing further. The suspension must be followed by an investigation and, where appropriate, a dismissal by the minister within 45 days. The suspension, investigation and removal are inextricably linked together in the section. In the absence of the last two — an investigation and a decision on removal — there cannot be a suspension because the purpose of the suspension is impossible to achieve. On this ground alone, the minister’s action in suspending the mayor was illegal.
“We say ‘on this ground alone’ because there are other reasons for questioning the suspension. We have mentioned one — that the ground of suspension does not seem to fall within section 114 of the Urban Councils Act, much less the Constitution. It can also be argued that section 132 of the Urban Councils Act, which prohibits municipalities from appointing town clerks without the Local Government Board’s approval, infringes the autonomy that Chapter 14 of the Constitution confers on local authorities.”
In conclusion, Veritas said: “It is most regrettable that the Minister has persisted in trying to suspend councillors under section 114 of the Urban Councils Act after being told by two judges of the High Court that he has no power to do so. Whatever his motive, his conduct undermines the independence of local authorities and the devolution of governmental powers that are keynotes of Chapter 14 of the Constitution.”
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