via Urban Councils Act under scrutiny | The Herald September 14, 2015
The validity of the powers of Local Government, Public Works and National Housing Minister Saviour Kasukuwere to fire councillors using the Urban Councils Act, has come under the spotlight at the High Court in a case that could provide clarity on the contentious issue.
This brings the need to urgently realign laws in line with the dictates of the new Constitution.
Two Gweru councillors — Albert Chirau and Moses Marecha — were fired for misusing council property and engaging in corruption while a third councillor, Kenneth Sithole of Ward 4 was slapped with a written warning.
Chirau and Marecha were fired in July this year, as councillors for Ward 11 and Ward 5 respectively.
In firing the duo, Minister Kasukuwere used Section 114 (1) Chapter 9:15 of the Urban Councils Act. It states that the Local Government Minister can suspend and dismiss a councillor after an independent committee thoroughly inquired into the councillors’ misconduct prior to dismissal.
The two councillors have now engaged NGO Forum to challenge their dismissal from council.
The constitutional challenge is premised on the fact that Section 278 of the Constitution gives exclusive powers to fire councillors to an independent tribunal. The tribunal is not yet set up.
In their application filed in the High Court, the councillors argue that Minister Kasukuwere could not dismiss them in a manner inconsistent with Section 278 (2) of the Constitution.
Clrs Chirau and Marecha also seek to request the apex court hearing of the matter treated with urgency before the by-election scheduled for November.
The NGO Forum has retained Advocate Tawanda Zhuwarara to argue the matter. Clr Chirau who deposed to an affidavit said no formal hearing answering to the standards set by Section 278 of the Constitution was ever conducted before they were fired.
“What (Minister) Kasukuwere called an investigation was fraught with constitutional irregularities and is at law a nullity,” said Clr Chirau who deposed to an affidavit filed in the High Court. Section 114 of the Urban Councils Act, which the minister used to fire them “is in direct conflict and disagreement with section 278 of the Constitution”, argued Clr Chirau.
The councillors also claim Minister Kasukuwere hand-picked an investigative team that is not independent.
“Such team did not answer to the description of the independent tribunal contemplated by Section 278 of the Constitution,” said Cllr Chirau.
“We were denied the formality of a tribunal and the attendant safeguards of quasi-judicial proceedings.” He further argues that the manner in which the minister conducted the enquiry was against the dictates of a fair hearing.
Cllr Chirau said a determination should be made on the question of the constitutional validity of sections 114 (1)-(5) of the Urban Councils Act that in view of the provisions of sections 278 (2) of the Constitution.
Clr Chirau strongly feel Minister Kasukuwere’s reliance on the sections of the Urban Councils Act was constitutionally improper and violated their fundamental rights.
Prior to their dismissal, Chirau and Marecha had been first suspended and ordered to stop conducting council duties in their respective wards until the outcome of the investigations conducted by the Ministry.
Clr Chirau was accused of renting out a council club house in his ward and pocketing the rentals while Marecha was accused of selling pit sand and gravel in Senga to a public contractor and pocketing the money.