[Bill-Watch] Constitution Watch 10/2014 of 14th October [Are the Draft Local Government Bills Constitutonal? Part II - Provincial & Metropolitan Councils Administration Bill]

[Veritas Bill Watch]

CONSTITUTION WATCH 10/2014
[14th 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.
 
Veritas makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied
To subscribe or unsubscribe from this mailing list please email
<mailto:veritas at mango.zw> billwatch at mango.zw
If you wish to contact Veritas please email  <mailto:veritas at mango.zw>
veritas at mango.zw 
If you are requesting legislation please email  <mailto:veritas at mango.zw>
veritas at mango.zw or look for it on www.veritaszim.net
<http://www.veritaszim.net/>  
 
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mail.veritas.co.zw/mailman/public/bill-watch/attachments/20141014/30725657/attachment.html 
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/gif
Size: 31941 bytes
Desc: not available
Url : http://mail.veritas.co.zw/mailman/public/bill-watch/attachments/20141014/30725657/attachment.gif