Are the Draft Local Government Bills Constitutional?

via Are the Draft Local Government Bills Constitutional? | The Zimbabwean. 12 September 2014 by Veritas

CONSTITUTION WATCH 9/2014

[10th September 2014]

Are the Draft Local Government Bills Constitutional?

Part I – The Local Authorities Bill

Introduction

Last week the Ministry of Local Government, Urban and Rural Development presented three draft Bills at a series of consultative workshops organised with the assistance of UNDP. The Bills were designed to align the Ministry’s legislation on local government with the new Constitution. Selected interest groups, including civil society organisations, were invited to discuss these Bills:

• Local Authorities Bill

• Provincial and Metropolitan Councils Administration Bill

• Traditional Leaders Amendment Bill

The Ministry deserves great credit for preparing the Bills — other Ministries have not even begun to bring their legislation into line with the Constitution — and also for consulting the public before producing final drafts for presentation to Parliament.

In this and subsequent Constitution Watches we shall examine the three Bills in turn, starting with the Local Authorities Bill.

The Local Authorities Bill

The Bill is an amalgamation of the Urban Councils Act, which regulates cities, municipalities, towns and local government areas, and the Rural District Councils Act, which regulates rural district councils. Like those two Acts, the Bill covers the establishment of local authorities, their membership and staff, their powers including their power to make by-laws, and the powers of the Minister to control their activities. Many of the Bill’s provisions have been taken word for word from one or other of the two Acts. Whereas the intentions of its new provisions are to align governance of local authorities with the Constitution this has not been satisfactorily achieved. Nor has the Bill been well drafted – although it is perhaps unfair to criticise the Bill on this ground as it only a lay draft produced for public discussion, and no doubt it will be tidied up by the professional drafters in the Attorney-General’s Office before it is presented in Parliament.

Constitutional Provisions Relating to Local Government

Before assessing whether the Bill’s intention to give effect to the new Constitution is fulfilled, we need to outline the constitutional provisions relating to local authorities. These are in Chapter 14 of the Constitution

Section 264 deals with devolution to provincial and local government. It starts with a statement that governmental powers and responsibilities must be devolved wherever appropriate to local authorities which are capable of exercising them This echoes section 3(2)(l) of the Constitution, which makes devolution of governmental power one of the values on which the Constitution is founded.

Section 265 goes on to set out general principles of local government, of which the most important are:

• Local authorities must ensure good governance, must not exceed their functions, must co-operate with one another, and must ensure the fair and equitable representation of people in their areas.

• All members of local authorities must be elected by registered voters within their areas.

• An Act of Parliament must facilitate co-ordination between central government, provincial councils and local authorities.

Section 266 of the Constitution states that employees of local authorities must not be politically partisan and “must not be office-bearers of any political party” and that Parliament is required to enact legislation to ensure their political neutrality.

Section 274 provides that urban local authorities may be of different classes — i.e. they may be cities, towns, and so on — and must be managed by councils composed of councillors elected in terms of the Electoral Act by registered voters within their areas. They may have executive mayors, but such mayors must be directly elected by the voters.

Section 275 provides that rural local authorities also may be of different classes. Their councillors too must be elected by registered voters and their councils are presided over by elected chairpersons

Section 276 sets out the functions of urban and rural local authorities: every local authority, urban or rural, “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.” Hence the Constitution itself gives local authorities the powers they need to govern the local affairs of their people.

Section 278 provides that councillors of local authorities enjoy protection from arbitrary dismissal. They vacate their seats in the same circumstances as members of Parliament — e.g. if they take up employment as public officers, become insolvent or change their political allegiance — and they may be removed from office only by an independent tribunal [by implication, after a proper investigation] on restricted grounds such as incapacity, gross incompetence or conviction for an offence involving dishonesty, corruption or abuse of office.

Criticism of the Local Authorities Bill on Constitutional Grounds

In the light of the constitutional provisions outlined above , how does the Bill shape up? The answer: not as well as it should.

Degree of Ministerial Control Unconstitutional

Whereas the Constitution provides for more local autonomy, the Bill allows the Minister to retain the excessive control he currently exercises over the affairs of local authorities.

Section 276 of the Constitution, as noted above, gives every local authority the right to govern local affairs “on its own initiative”, i.e. without interference from the central government. Although the section does allow Parliament to reduce local authorities’ independence to some extent [ it begins “Subject to … any Act of Parliament”] local authorities must retain a fair degree of autonomy. The Bill hardly allows them that, because under it the Minister will have the following powers, amongst many others:

• To reverse, suspend or rescind resolutions and decisions of local authorities [clauses 54(2) and 254].

• To require local authorities to obtain his approval before passing resolutions [clause 56].

• To give local authorities directives as to the policies they may adopt [clause 253].

• To approve or disapprove [i.e. to veto] by-laws of local authorities [clause 148].

• To make by-laws on behalf of local authorities [clause 153].

• To control local authorities’ finances, particularly through the power:

• to approve or disapprove local authorities’ estimates of expenditure [clause 228(2)];

• to approve or disapprove their long-term and short-term borrowing [clauses 230 & 231];

• to require them to levy rates in order to repay loans [clause 233];

• to approve or disapprove their income-generating projects [clause 34].

• To compel local authorities to take action they are supposed to take under the Bill [clause 255].

• To give policy directives to the Local Government Board which has the function of approving conditions of service of councillors and local authority employees and of vetting the appointment of senior staff [clause 82].

Local authorities may need oversight from the central government, because both here and elsewhere some of them have proved to be incompetent, extravagant and corrupt. Nonetheless, the powers given to the Minister under the Bill are excessive and unconstitutional, and are likely to snuff out any sparks of initiative local authorities may try to produce.

Other Inconsistencies with the Constitution

The Bill will go some way towards bringing our local government legislation into line with the Constitution — for example, it states that all councillors must be elected rather than appointed by the Minister, as at present — but some constitutional inconsistencies remain:

• Clauses 6 and 12 give the President power to delimit and alter ward boundaries within local authority areas. Under section 239(f) of the Constitution, that is the function of the Zimbabwe Electoral Commission [ZEC].

• Under clause 16 the Minister can extend the powers of local authorities to cover matters incidental to the powers specifically given them by the Bill. This is unnecessary and undesirable because section 276(1) of the Constitution gives them all the powers they need.

• Clause 5, which deals with the establishment and alteration of districts, requires some degree of consultation with local people — at a minimum, publication of a notice in the press calling for written representations — but this is probably not sufficient to satisfy the requirements for consultation imposed by section 267(2) of the Constitution. In particular, the clause does not mention consultation with ZEC, which is specified in section 267(2).

• Clause 17 empowers local authorities to demolish buildings erected illegally. Section 74 of the Constitution, however, obliges an authority to obtain a court order if the demolition would result in people being evicted from their home. There is no mention of this in clause 17.

• There is no provision in the Bill for the equitable allocation of revenues between provincial and local tiers of government, which section 301 of the Constitution states must be provided for in an Act of Parliament. Perhaps, however, this is to be dealt with in the Public Finance Management Act or some other legislation.

• There is no provision in the Bill for co-operation and co-ordination between local authorities and provincial and metropolitan councils, as required by section 266 of the Constitution. Indeed, provincial councils are not mentioned at all in the Bill.

• There is no provision in the Bill ensuring that employees of local authorities are politically neutral.

There are other substantial criticisms that can be made about the Bill

Inadequate Distinction between Different Kinds of Local Authorities

It is doubtful if combining urban and rural authorities into a single Bill will lead to greater administrative efficiency — officials of each type of local authority may prefer to be governed by their own specific piece of legislation. But even if one accepts that it may be desirable to deal with all local authorities together, the Bill does not take enough account of real differences between urban and rural authorities. For example:

• All local authorities, including urban ones, are obliged by clause 18(2) to consider annual development plans prepared by their rural district development committees. This can only apply to rural district councils.

• Clause 126 empowers local authorities to canalise or divert public streams within their areas, regardless of the Environmental Management Act or the Water Act. This may perhaps be appropriate for urban local authorities, but if it is extended to rural ones it will nullify most of the Water Act.

• Parts XV and XVI, which deal with valuation and rating, do not take account of the very different rating and tax structures between urban and rural local authorities. Urban authorities get rates from valued urban properties; rural authorities impose land development levies [often called unit taxes].

Furthermore, no distinction is made between different kinds of urban local authorities: cities, municipalities and towns. Although cities, municipalities and towns are occasionally mentioned separately, they are all given the same functions and powers regardless of their status or size.

Unclear Provisions

Several provisions of the Bill are unclear. In many cases, no doubt, the lack of clarity will be removed when the Bill is redrafted in the Attorney-General’s Office. Some unclear provisions should be mentioned, however, because they create doubt as to the policy behind the Bill or even the scope of the Bill itself:

• The term “local authority” is defined in clause 2 as including municipalities and towns but does not mention local government areas or local boards, even though those terms appear in the rest of the Bill. Are local boards to be abolished, and if so what is to happen to existing ones such as Chirundu and Epworth?

• Clause 6 of the Bill deals with the establishment of rural local authorities but does not mention urban ones. How are they established?

• Clause 9(2) states that even though local authorities are corporate bodies, councillors are “liable either collectively or individually”. What does this mean? If it extends to criminal liability, then it will probably be unconstitutional. Councillors must be told in the clearest possible terms what the extent of their liability is.

• In a similar vein, clause 65 requires elections of mayors and chairpersons to be “gender sensitive”. Those words are so vague as to be meaningless. Councils must be told precisely how they are to tackle gender issues when electing mayors and chairpersons. Clause 74, which uses the same words in relation to the appointment of the chairperson of the Local Government Board, must be similarly clarified.

• It is not clear if the Labour Act is to apply to employees of local authorities. The Act does not exclude them, but Part IX of the Bill, which deals with the appointment and dismissal of employees, suggests that the Act will not apply.

• Clauses 39 to 47 of the Bill provide for an Independent Tribunal which, as required by section 278(2) of the Constitution, is responsible for removing councillors from office. Although the Tribunal’s establishment and composition are dealt with in detail there is no indication how the Tribunal is to set about its work of deciding whether a councillor should be removed.

Terminology Confusing

Throughout the Bill, local authorities are called “local authorities” rather than “councils” or more specific terms such as “municipalities” and “towns”. It is not easy to understand why. Chapter 14 of the Constitution does use the term “local authorities” but it does not suggest that no other terms should be used. Indeed, section 5 of the Constitution, which sets out the tiers of government, refers to urban councils and rural councils “by whatever name called”.

Up till now, the various types of local authorities have been called by the following names:

• Cities and municipalities, governed by city and municipal councils.

• Towns, governed by town councils.

• Local government areas, governed by local boards.

• Rural district councils, whose governing bodies are also called rural district councils.

There seems no good reason to change that terminology, which has been used for a great many years without apparent difficulty.

Conclusion

As the above assessment makes apparent, the draft Bill does not achieve its purpose of bringing local government legislation into line with the Constitution. One hopes that when the Bill is redrafted the Ministry will engage in further consultations to ensure this purpose is achieved and that the other shortcomings noted above are corrected.

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