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Law and Development - Bulletin 3
Centre for Applied Legal Research (CALR)
October 02, 2013

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The Law & the Devolved System of Governance

Chapter 14 of the new Constitution of Zimbabwe introduces a ‘devolved system’ of governance for the first time in the country’s history. This system, at least conceptually, is different from the ‘centralized system’ of governance that existed previously. Under a devolved system, it is expected that certain aspects of political, administrative, and fiscal management powers will be transferred and shared between the central government and the newly constitutionally-established Provincial/Metropolitan and Local Authority tiers of government.

According to Section 264 of the new Constitution, the devolved system is anticipated to: give powers of local governance to the people and enhance their participation in the exercise of the powers of the State and in making decisions affecting them; promote democratic, effective, transparent, accountable and coherent government; preserve and foster the peace, national unity and indivisibility of Zimbabwe; recognise the right of communities to manage their own affairs and to further their development; ensure the equitable sharing of local and national resources; and to transfer responsibilities and resources from the national government in order to establish a sound financial base for each provincial and metropolitan council and local authority.

These are the noble ideals of a devolved system that the people of Zimbabwe overwhelmingly endorsed in the March 2013 Constitutional Referendum. While the significance of these broad ideals cannot be questioned, it is always the question of ‘detail’ that determines whether they will transcend the realm of theoretical idealism to practical reality.

Research and experiences from other jurisdictions has shown that the success of a devolved system of governance is dependent on various factors, chief of which is the design of policy, legal and institutional instruments that are intended to achieve the set constitutional objectives. The new Constitution establishes the constitutional legal framework. However, this framework has to be supported by carefully designed policies, legislation and institutions that are intended to achieve the desired objectives. The constitution alludes to some of these pieces of legislation, which include inter alia, an Act of Parliament to facilitate the coordination between central government, provincial/metropolitan councils and local authorities (S. 264(3)); an Act of Parliament to establish and provide for the functions of provincial/Metropolitan Councils (S. 267 (2) and 270 (2)); and an Act of Parliament to establish and confer powers and functions upon local authorities (S. 276 (2)). The content and effect of these laws should ordinarily be gleaned from the essence of what was intended by the Constitution. This means that they ought to be designed in a manner that reflects not only the letter of the Constitution but also the spirit of Chapter 14. This would mean for instance that they ought to extensively espouse the principle of subsidiarity which is the cornerstone of any devolved system of governance. The principle of subsidiarity requires that certain government matters ought to be handled by the smallest, lowest, or least centralised authority capable of addressing those matters effectively.

According to the United Nations Development Programme (UNDP), this principle speaks to the need to restructure or reorganise government authority so that there is a system of corresponsibility between institutions of governance at the central, provincial/metropolitan and local levels, with the objective of increasing the overall quality and effectiveness of the system of governance, while increasing the authority and capacities of sub-national levels. This is intended to result in: enhanced democracy by bringing government closer to the people; protecting democracy by establishing vertical checks and balances between the three tiers of government; and enhancing public service delivery by distributing authority of fiscal management and improving efficiency in resource allocation.

The significance of ‘getting it right’ at the stage of policy, legislation and institutional design is emphasized by the fact that an ill-designed system may lead to negative and unintended results. Experiences from other jurisdictions reveal that a devolved system may, if not properly planned, reduce the ability of the government to re-distribute national resources thereby aggravating provincial/ metropolitan disparities in public spending and economic outcomes. In some instances, it can foster corruption at local level if there are no rules and systems to address local political hegemony, amongst other ills.

This edition of the CALR Law and Development Bulletin focuses on the ‘Devolved System of Governance’ as outlined in the country’s new Constitution. It contains four articles that try to shed some light on some of the conceptual and legal niceties required to make the system functional. The articles touch on the definitional aspects of devolution; the structure of a devolved system of governance; the expected developmental benefits in terms of service delivery and resource allocation efficiency. These articles are not exhaustive, by themselves, to provide a comprehensive depiction of what a devolved system of governance will look like in Zimbabwe. Rather they provide insights into some of the issues, with the purpose of promoting further debate and attention on the matter by government, the private sector, academics, civil society, and the general public.

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