Source: MDC-T drags Kasukuwere to Constitutional Court | The Herald January 24, 2017
Daniel Nemukuyu: Senior Court Reporter
MDC-T has approached the Constitutional Court challenging the constitutionality of parts of the recently amended Local Government Act which gives the responsible minister powers to unilaterally suspend councillors, chairpersons and mayors without setting up a tribunal.In terms of the Local Government (Amendment) Act, 2016, the Minister of Local Government, Public Works and National Housing has power to suspend councillors, mayors and council chairpersons on his own, a situation which the opposition party argued to be against the spirit of the supreme law.
The opposition party argued that the new law was in disharmony with the Constitution, which provides for the setting up of an independent tribunal to decide on whether or not a councillor should be removed from office.
MDC-T last week filed an application for direct access to the Constitutional Court, arguing that the new law should be declared unconstitutional.
The Minister of Local Government, Public Works and National Housing Saviour Kasukuwere, Vice President Emmerson Mnangagwa, Attorney-General Advocate Prince Machaya and the Speaker of Parliament Adv Jacob Mudenda were cited as respondents in their official capacities.
Section 278 of the Constitution provides for the promulgation of an Act of Parliament which provides a legal framework for the removal of councillors from office through a tribunal.
Section 278 reads:
“An Act of Parliament must provide for the establishment of an independent tribunal to exercise the function of removing from office mayors, chairpersons and councillors, but any such removal must only be on the grounds of,
a) Inability to perform the functions of his or her office due to mental or physical incapacity, or
b) Gross incompetence, or
c) Gross misconduct, or
d) Conviction for an offence involving dishonesty, corruption or abuse of office, or wilful violation of the law, including a local authority by-law.”
MDC-T argued that the Section 2(i) of the Act does not comply with the Constitution because it was silent on the setting up of a tribunal.
“Clearly, the Constitution says there shall be an independent tribunal to remove mayors, chairpersons and councillors, but any such removal shall be on the grounds provided,” reads the application.
“By omitting to mention the independent tribunal from the onset, the Act proceeded as if chairpersons, mayors or councillors could be removed by anybody. The Act has already lost the correct trajectory.”
The opposition party argued that Section 2(2) of the Act gives the minister power to suspend councillors, mayors and chairpersons if he or she has reasonable grounds for suspecting acts of misconduct.
“The minister is not an independent tribunal and there is no room for ministerial intervention left by the constitutional provision. This is blatantly unconstitutional. Suspension is removal, albeit temporarily,” the MDC-T said.
“It is incredible that the Act seeks to smuggle the minister into the law by merely replacing removal with suspension.”
The party also attacked Section 2(4) of the Act which gives the minister the mandate to conduct a thorough investigation whenever he suspects misconduct.
The listed respondents are yet to file their responses to the application.