[Bill-Watch] Constitution Watch 9/2014 of 10th September [Are the Draft Local Government Bills Constitutonal? Part I - The Local Authorities Bill]

[Veritas Bill Watch]

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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