Source: Bill exposes ZANU-PF | The Financial Gazette July 7, 2016
THE urgency with which Local Government Minister Saviour Kasukuwere has pressed for the amendment of the Local Government Act points to a very desperate government that is pulling all the stops to remain in power.
A month after the Local Government Bill was gazetted on May 9, amid angry protests, Kasukuwere introduced it in the National Assembly on June 7 for its first reading.
It was immediately after referred to the Parliamentary Legal Committee (PLC) to check its compliance with the Constitution.
While public hearings on the Bill were held from June 13 to 17 by two teams of Members of Parliament from the Portfolio Committee on Local Government, there was a major public protest over the surprising omission of the country’s entire southern and western regions of Matabeleland North and South.
Hearings were then quickly factored in the two provinces on June 21 and 23.
Interestingly though, a week after the public hearings were conducted, the Bill was returned to Parliament on Wednesday last week for its second reading before findings of the countrywide consultations were inputted, raising more concerns regarding the seemingly flawed process of amending the Bill.
Despite protests from opposition Movement for Democratic Change (MDC-T) MPs over the fast- tracking of the Bill, it, nonetheless sailed through its second reading after the House Speaker ruled that a June 23 PLC meeting had issued a non-adverse report on the Bill.
This now effectively means that the Bill can now be enacted into law without any further ado after it went through the committee and third reading stages.
Parliamentary and Legal watchdog, Veritas, has described the events leading to the tabling of the Bill and railroading through Parliament as unfortunate because it gave the portfolio committee insufficient time to thoroughly assess the public input and prepare its report on the Bill for Parliament to consider any report the committee may produce.
“Fast-tracking of Bills is always to be deplored except in the case of a real emergency. A Bill awaited for three years cannot be considered an emergency. The Constitution makes provision for public involvement in the legislative process. This is not only a necessary exercise, but an expensive one,” said Veritas.
“The constitutional provision will be nullified, and all the expense incurred in public hearings on the Bill will go to waste, if the Portfolio Committee is not given enough time to prepare its report and if the National Assembly is not allowed enough time to consider the report,” said Veritas.
The legal watchdog, which described the Bill as “unsatisfactory and quite probably unconstitutional, in several aspects” because it was “not very well drafted”, is arguing that: “…the Bill is defective in the following respects:
•First and foremost, it tries to align the two (Rural District Councils and the Urban Councils) Acts with the Constitution only in regard to the suspension and dismissal of councillors. It does nothing to bring numerous other provisions in the Acts into line with the Constitution;
•Unlike the current provisions in the two Acts, which specify a 45-day limit to a councillor’s suspension, the amendments in the Bill do not set any time limit. In the absence of a time-limit, it seems that the minister can keep a councillor on suspension even if he or she is exonerated by the tribunal. This would be unconstitutional, because a councillor cannot represent his or her ward while on suspension thereby reducing the effectiveness of the council itself. A council whose members can be suspended indefinitely is not independent as envisaged by the Constitution;
• As already noted, a councillor will be removed from office automatically if the tribunal finds him or her guilty of ‘misconduct’. The term is not defined, and it could be construed as being wider than gross misconduct, gross incompetence, conviction of an offence involving dishonesty, or any of the other grounds set out in section 278 of the Constitution as the sole grounds for the removal of councillors. If the Bill is so construed it would be unconstitutional;
• Decisions of the tribunal are not subject to appeal, where an appeal court could look at the merits of the tribunal’s decision; but only to review by the High Court, in which the court can set aside the tribunal’s decision only for procedural defects. This is particularly important in regard to the civil penalties the tribunal will be able to impose, because a councillor will not be able to dispute the amount of the penalty unless it is so grossly unreasonable that no tribunal acting properly could have imposed it;
• The Minister of Local Government will be able to amend the new Fourth Schedule by statutory instrument, subject to obtaining parliamentary approval. It is not clear why he should be able to do this, since the schedule deals with the procedure to be followed by the tribunal. One of the provisions of the schedule, noted above, states that ‘substantial justice’ must be done by the tribunal: Surely that provision should never be amended? It is usually undesirable for ministers to have power to amend Acts of Parliament, and in this case it could allow the minister to change the procedural rules in order to prevent councillors from refuting the charges against them.”
That Kasukuwere, who has since suspiciously reworded the Bill’s text in between readings, appears hell- bent on obtaining these sweeping powers just to suspend mayors and councillors by appointing an independent tribunal, without aligning the entire Local Government Act to the Constitution in the process, has prompted many to see a desperate ruling party that is going all out to control the country’s local authorities that are currently under the opposition MDC-T’s armpits.
Kasukuwere’s shenanigans come hard on the heels of his failed previous attempts to get rid of mayors and councillors of Gweru and Harare municipalities after the courts ruled his moves as unconstitutional.
Social commentator, Alexander Rusero, said in times like these opposing the ruling party in Parliament would be a sheer waste of time because the opposition MPs are outnumbered.
He suggested that civil society should, instead, play a leading role in fighting such unconstitutional developments.
“If you look at the Bill, the MDC-T should have seen it coming; the post 2013 election is a reflective political game of numbers. So whatever makes sense or doesn’t make sense, if ZANU-PF wants to do it, it will do it. It always boils down to the game of numbers since it has the majority in Parliament. So there is nothing they (MDC-T) can do (about it).
“That’s where civil society comes in. At times it’s not necessarily the voice of the opposition that should be on the top, but the civil society should fill that part because we have a ZANU-PF-led government and a ZANU-PF-led Parliament,” said Rusere.
Political analyst, Vince Musewe, also concurred that trying to stop the ruling party through a parliamentary vote would be foolhardy for anyone.
He added that the unfolding events in Parliament were typical of ZANU-PF’s desperate bully-boy tactics and the opposition is too small in terms of numbers to have even attempted to stop ZANU-PF.
“It is ridiculous for (the) MDC-T to stop ZANU-PF from passing the Local Government Bill because ZANU-PF has a majority seats in Parliament, especially after MDC managed to give them 24 (more) seats, so it’s coming back to bite everyone now because ZANU-PF can basically do as they like and they are desperate because they have got nothing to give to the Zimbabweans. The country is broke, they can’t pay salaries and now the only thing they can do is bully the people and try to use the law to suppress any kind of positive action that might happen in Harare…They are trying to change the laws so that they can use their bullying tactics once more,” said Musewe.
Political analyst, Dumisani Mpofu, said the Bill’s silence on devolution of power was the chief reason behind why it has been publicly rejected.
“I think it has to be withdrawn like the National Peace and Reconciliation (NPRC) Bill because what frustrates people from the start is that the chairperson of that tribunal shall be appointed by the minister which means he shall continue to have influence even behind bars,” said Mpofu.
Government withdrew the NPRC Bill last month after it was found to be in violation of the Constitution in 20 clauses.
Another political analyst, Rejoice Ngwenya, said it was clear that ZANU-PF was out to frustrate all MDC-T run councils by coming up with the Bill. He argued that although the opposition run councils could be corrupt, government ministers were even more corrupt and but were going scot-free.
“The Constitution gave councils autonomy; this bill is contaminated and stinks with ministerial interference. Why is the minister involved in setting up a tribunal when he is an interested party?” queried Ngwenya.
Harare Residents Trust director, Precious Shumba, said: “The Bill lacks sincerity from the Ministry of Local Government because it only focuses on Section 278 of the Constitution which speaks to the removal and suspension of councillors, chairpersons and mayors from office.
“It ignores the most important aspect of the devolution of governmental powers as espoused in terms of the whole chapter 14 on provincial and local government in the Constitution.”
Shumba added that the public’s resistance of the proposed law was genuine and legitimate because the Bill ignores the input of stakeholders during consultative meetings.
It has been argument after argument, but the bottom line is that the Bill is poised to become law in a move that could adversely affect the country’s ease of doing business rankings by further keeping foreign investors, who might be wary of the ad hoc manner in which the country alters its laws, at bay.
Zimbabwe, according to the Global Property Guide, is one of the countries ranked the lowest on the Property Rights Index, which measures the degree to which a country’s laws protect private property rights, and the degree to which its government enforces those laws.
The country currently has a score of 10 while, for instance Botswana and South Africa have scores of 70 and 50 respectively.
“The index also assesses the likelihood that private property will be expropriated and analyses the independence of the judiciary, the existence of corruption within the judiciary, and the ability of individuals and businesses to enforce contracts,” says the Global Property Guide.
And given the manner in which Kasukuwere has handled the amendment of the Local Government Bill, both foreign and local investors would most probably be developing goose bumps and would most likely wait in the wings until after the 2018 general elections to consider making serious commitments in investing in the southern African country.