By Veritas Zimbabwe
Disclosures of mismanagement in the governance of Harare, and attempts by the Minister of Local Government to interfere in the City’s affairs, makes it topical to look at what the Constitution says about the relationship between local authorities and central government, and how the Constitutional Court has interpreted the Constitution in this regard.
The Constitution and Local Authorities:
Section 3 of the Constitution declares that devolution and decentralisation of governmental powers are principles of good governance, and good governance is itself declared by section 3 of the Constitution to be a foundational value of Zimbabwe.
More specifically, Chapter 14 of the Constitution deals with provincial and local government, emphasising the importance of devolving powers and responsibilities.
Thus section 264(1) says: “Wherever appropriate, governmental powers and responsibilities must be devolved to … local authorities which are competent to carry out those responsibilities efficiently and effectively.”
Subsection (2) of the section explains the reasons for devolving powers and responsibilities:
“(a) to give powers of local governance to the people and enhance their participation in making decisions affecting them;
(b) to promote democratic, effective, transparent, accountable and coherent government in Zimbabwe;
(c) to preserve and foster the peace, national unity and indivisibility of Zimbabwe;
(d) to recognise the right of communities to manage their own affairs and to further their development; Section 276(1) goes on to say:
“Subject to this Constitution and any Act of Parliament, a local authority 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.”
There has to be a balance between the powers of central government and those of local authorities. While local authorities must be allowed to govern local affairs on their own initiative, they cannot be given complete autonomy. The central government has a duty to govern the country as a whole, and its laws must be applicable to everyone wherever they live. Local authorities cannot have such complete autonomy that they override national laws. On the other hand, laws made by the central government – Acts of Parliament – must not unduly restrict the powers of local authorities to regulate their local affairs. As we have said, there has to be a balance.
The Urban Councils Act
The Urban Councils Act, as its name indicates, regulates the affairs of urban local authorities. It long predates the Constitution and pays little regard for local autonomy – so little regard that it gives the Minister of Local Government very wide powers to control the activities of urban councils. For example:
· Under section 4A the Minister can appoint up to one-third of the councillors of any local authority, who hold office at the Minister’s pleasure. [section 274(2) of the Constitution, on the other hand, says that councillors are to be elected by voters in the areas concerned].
· Under section 206 of the Act the Minister can direct councils to establish townships and, if they fail to do so, he or she can establish townships on their behalf.
· The Minister has a veto over councils’ by-laws; that is to say, the Minister must approve all their by-laws and under section 232 he or she can make by-laws on their behalf.
· Under section 313 the Minister can give councils policy directives “in the national interest” and councils must comply with them.
· Under section 314 the Minister can direct councils to reverse, suspend or rescind resolutions and other action taken by them.
The validity of these powers, particularly those conferred on the Minister by section 314 of the Act, was considered by the Constitutional Court in a Veritas case decided earlier this year, Combined Harare Residents’ Association & Others v Minister of Local Government, Public Works and National Housing [link].
The View of the Constitutional Court
The Court’s decision was not unanimous, with two judges delivering separate dissenting judgments. A large part of all the judgments was taken up with issues of jurisdiction – the power of courts to deal with constitutional questions – and the right of citizens to challenge the constitutionality of legislation. On these matters the judges made far-reaching pronouncements which we shall consider in another Constitution Watch. In this bulletin we shall confine ourselves to the Court’s decision on the relationship between central government and local authorities.
The majority judgment
Judge Makarau delivered the judgment of the majority of the Court. The main points she made were:
· One of the objectives of devolving powers set out in section 264(2) of the Constitution is to enhance democratic participation in government by all citizens and communities. Another objective is to preserve the national unity and indivisibility of Zimbabwe. Both these objectives must be given their due weight.
· It is for central government to determine when devolution of power may occur and whether local authorities are competent to exercise the devolved power.
· The right of local authorities to run local affairs must be read subject to the Constitution and any Act of Parliament.
· The Minister responsible for local government must retain some residual oversight powers to ensure that the core values of devolution are upheld and that national unity is maintained.
· Hence the Minister must be able to direct councils to rescind, alter or suspend their resolutions under section 314 of the Urban Councils Act, but the Minister’s power under the section cannot be exercised on mere whim:
Ø The exercise of the power must be informed and rational
Ø The Minister may exercise the power only where a local authority’s resolution or decision is demonstrably not in the interests of the inhabitants of the area or is not in the public or national interest
Ø The Minister must give reasons for exercising the power, showing how the local authority’s resolution is demonstratively not in the national or public interest or in the interests of inhabitants of the area, and
Ø the Minister’s decision is subject to review by the courts in terms of the Administrative Justice Act.
There is one further point which the learned Judge did not make, but which is implicit in her reference to the Administrative Justice Act: before the Minister directs a council to rescind, suspend or alter a resolution the Minister must inform the council of the proposed directive and give councillors an opportunity to make representations as to why the directive should not be given – section 3(2) of the Act.
The minority judgment
Judge Patel, giving a minority judgment, would have gone further. He considered that the Minister’s power under section 314 undermines the concept of devolution laid down in the Constitution.
While the Constitution allows central government to supervise local authorities to ensure effective and efficient administration throughout the country, the supervision must be benign, supportive and permissive rather than oppressive.
Section 314, on the contrary, is bluntly undemocratic. In the learned Judge’s view therefore the section is patently unconstitutional.
Comment
Veritas prefers the view expressed by Judge Patel (of course we would – Veritas sponsored the case to have section 314 declared unconstitutional and void) that said, the judgment of the majority of the Court is authoritative and will go a long way to curtail Ministerial power to interfere in local authority affairs:
· Ministers will be able to overturn only those council decisions that are patently contrary to the public or national interest or contrary to the interests of people who live in the council area
· Ministers will have to consult councils before overruling their decisions
· Ministers will have to give reasons for overruling council decisions, and
· Ministers may be taken to court if they exceed their powers.
Putting it very briefly: the Constitutional Court has ruled that Ministers of Local Government can no longer act like dictators.
*Veritas Zimbabwe is a constitutional watchdog
