Constitution Watch 10/2014 of 14th October

via Constitution Watch 10/2014 of 14th October 15 October 2014

Are the Draft Local Government Bills Constitutional?

Part II – Provincial and Metropolitan Councils Administration Bill

Introduction

In this series of Constitution Watches we are discussing draft Bills which the Ministry of Local Government, Urban and Rural Development have prepared in order to align their legislation with the new Constitution. In Constitution Watch 9/2014 of 10th September we analysed the draft Local Authorities Bill. We now turn to the Provincial and Metropolitan Councils Administration Bill. [Both these draft bills are available at the addresses at the end of this bulletin]

Constitutional Background to the Bill

Provincial and metropolitan councils are created by the Constitution, which deals with their boundaries and membership and sets out their basic functions. In order to understand the Bill, therefore, we should first outline the constitutional provisions relating to these councils.

Devolution of powers

Devolution of governmental powers is a basic principles of the new Constitution: wherever it is appropriate to do so, governmental powers and functions must be devolved to provincial and metropolitan councils and to local authorities [section 264 of the Constitution].

Provinces and councils

Under section 267 of the Constitution, there are ten provinces whose boundaries must be fixed under an Act of Parliament; two of them, Bulawayo and Harare, are declared to be metropolitan provinces. Section 268 goes on to establish provincial councils for all the non-metropolitan provinces and section 269 establishes metropolitan councils for Bulawayo and Harare.

Provincial councils consist of:

• all the Members of Parliament for the province concerned

• the mayors and chairpersons of all the local authorities in the province

• ten additional members elected under a system of proportional representation by voters in the province [section 268].

The chairperson of a provincial council is elected by councillors at their first meeting, from candidates put forward by the political party which gained most parliamentary seats or received the most votes in the province at the last general election [section 272].

Metropolitan councils consist of:

• the Members of Parliament for the province concerned

• the mayors and chairpersons of all the local authorities in the province and their deputies

The mayors of Bulawayo and Harare chair the metropolitan council for their province [section 269].

Functions of provincial and metropolitan councils

Section 270 of the Constitution gives provincial and metropolitan councils responsibility for the social and economic development of their provinces, including:

• planning and implementing social and economic development activities

• co-ordinating and implementing governmental programmes

• planning and implementing environmental conservation measures

• promoting tourism and developing tourist facilities

• monitoring and evaluating the use of resources in their provinces

• exercising other functions, including legislative functions, conferred or imposed by Act of Parliament.

To enable them to exercise these functions, councils can form committees, but every committee must be chaired by an elected member, in the case of a provincial council, or a mayor or chairperson or deputy, in the case of a metropolitan council [section 271].

Procedures of councils

Section 273 of the Constitution states that an Act of Parliament must provide for the procedures to be followed by provincial and metropolitan councils, as well as the duties of chairpersons and how staff should be appointed.

Filling of vacancies

The Electoral Act makes provision for holding elections for vacancies among members elected in each province under proportional representation. If vacancies occur among other members, who hold office by virtue of their being members of Parliament or being mayors and chairpersons of local authorities, these vacancies will be automatically filled by whoever fills the Parliamentary or local authority vacancy concerned.

Removal of chairpersons from office

Section 272 of the Constitution says that an Act of Parliament must establish an independent tribunal for the purpose of removing chairpersons of provincial councils from office on certain specific grounds, such as incapacity, gross incompetence and wilful violation of the law.

Contents of the Bill

The Constitution, therefore, deals fairly comprehensively with provincial and metropolitan councils. It establishes them, it sets out their membership, and it gives them basic functions.

What does the Bill add to this? Not very much, unfortunately, and some of what it does add is constitutionally questionable.

Provinces and districts

The Bill begins by giving the President power to alter the boundaries of provinces and to establish districts and alter their boundaries. The Bill also provides for publication of a notice in the press calling for written representations before boundaries are established or altered. But this is probably not sufficient to satisfy the requirements for consultation imposed by section 267(2) of the Constitution.

Establishment, membership and functions of councils

1. The Bill purports to give the President power to establish provincial and metropolitan councils, but it cannot do this because, as pointed out above, the councils are established by the Constitution itself.

2. It then sets out the membership and functions of the councils, simply repeating sections 267, 268 and 269 of the Constitution, which we outlined above.

3. Councils are given no additional functions. The Bill does allow the Minister to confer powers on councils, but only powers which are ancillary or incidental to their functions; again, this is unnecessary because section 342(3) of the Constitution confers all those powers on councils, so councils can exercise the powers whether the Minister confers them or not.

Election of chairpersons

The Bill then deals with the election of chairpersons of provincial councils, though that is already provided for in section 272 of the Constitution. The Bill also mentions vice-chairpersons, but does not indicate how they are to be elected or appointed.

Independent Tribunal

The Bill makes elaborate provision for the establishment and procedures of an independent tribunal which, in terms of section 272(7) of the Constitution, is given the function of removing chairpersons of provincial councils from office on grounds specified in that section. The Bill implies, however, that the tribunal will also be able to remove other councillors from office.

This is not possible because provincial councillors who are elected members of provincial councils retain their seats in all respects as if they were members of Parliament — there is no room for a tribunal to remove them [section 268(4)(c) of the Constitution]. Provincial councillors who are members of Parliament or mayors or chairpersons of local authorities remain for so long as they retain their seats in Parliament or their positions in the local authority concerned [sections 268(4) and 269(2) of the Constitution].

Proceedings of councils

Part V of the Bill deals with the proceedings of councils, namely, how they conduct their meetings, the keeping of minutes and so on. These provisions are useful, subject to two reservations:

• Clause 29 refers to “standing orders” which, one assumes, will regulate the order of debate at council meetings. However, the Bill does not say how standing orders are made, nor whether they will indeed regulate debates.

• Councils will be allowed to go into committee and exclude the public from their meetings whenever they consider that a topic should be debated in private. Minutes of such meetings will not be open to public inspection. In the interests of transparency councils should not be allowed so easily to avoid public scrutiny of their proceedings.

Committees of councils

Part VI of the Bill gives councils power to appoint committees, even though section 271 of the Constitution gives them the same power. The Bill does, however, specify that councils must appoint finance committees, environmental management committees, and audit committees to ensure the proper use of their resources; all these committees will have useful work to do, and audit committees may help prevent the maladministration which has plagued local government in Zimbabwe.

Staff of councils

Under Part VII of the Bill, councils will appoint chief executive officers, to be known as clerks; and will also have power to appoint other employees. The salaries and conditions of service of the clerks and employees will have to be approved by the Minister of Finance — a useful check on the payment of extravagant salaries.

These provisions are sensible and useful, except that clerks will be allowed to take part in council debates, though they will have no vote. This may blur the distinction between councillors, who formulate decisions, and the clerks who will be responsible for carrying them out. Clerks should not be allowed to participate in debates at the most they could be allowed to provide technical advice and secretarial assistance if called upon.

Council finances

The Bill will require councils to keep proper accounts and makes provision for their accounts to be audited by the Auditor-General. In addition, councils will have to have an audit committee and also an internal auditor to monitor their financial management and assess the effectiveness of the projects they undertake. It is not altogether clear who appoints these internal auditors, however: the Bill, by referring to the Public Finance Management Act, suggests that the Civil Service Commission appoints them, but this may not have been intended.

Deficiencies in the Bill

As stated earlier, the Bill does not add much of substance to what the Constitution says about provincial and metropolitan councils. This is a serious defect, because there is a lot that needs to be said, particularly on the following topics:

• Council finances: The Bill gives councils no independent power to raise money, whether through rates or taxes or other means. They will not, for example, be able to engage in “income-generating projects” which local authorities can do by virtue of section 221 of the Urban Councils Act. Section 301 of the Constitution states that an Act of Parliament must provide for capital grants [presumably from the central government] to be allocated equitably between councils and local authorities, so it seems that grants from government will be the councils’ only source of revenue.

• Legislative powers: Although section 270(1)(f) of the Constitution provides for councils being given legislative powers by Act of Parliament, the Bill makes no provision for councils to have law-making power; so they will not be able to make by-laws or regulations or other legally enforceable rules regulating, for example, the conservation or management of natural resources.

• Relations with other authorities: There is nothing to indicate how provincial and metropolitan councils will interact with the central government and local authorities within their provinces. Some provision is necessary because the functions of councils and local authorities overlap to some extent. For example, provincial and metropolitan councils are responsible for conserving and improving natural resources; urban councils also have those responsibilities, and the Bill should state whose rules or measures will prevail in the event of a conflict. Also the President has now appointed Ministers of State for each Province. The bill does not indicate how the councils are to interact with these Ministers and who has overall authority for the governmental activities in the province.

Conclusion

We have shown in this Constitution Watch that the draft Bill:

• repeats many of the constitutional provisions relating to provincial and metropolitan councils,

• does not give the councils powers or functions beyond those directly conferred by the Constitution

• does not indicate how the councils are to interact with other authorities

• does not ensure that funding of councils is commensurate with their responsibilities. The central government should not devolve responsibilities without funding.

It is hard to avoid the conclusion that the Ministry of Local Government has either not yet decided what role the councils should play in Zimbabwe’s governmental system, or has decided that they should be no more than debating chambers for the airing of issues that will be dealt with by other bodies such as the Government or local authorities.

Whichever view is correct, the Bill will seriously disappoint those who advocate greater autonomy for the provinces.