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Devolution Part 2- Constitution Watch - Content Series 3/2010
Veritas
August 22, 2010

Read Devolution Part 1

In Part I of this discussion on devolution we outlined the provisions of the current constitution, as well as those of the Kariba Draft and the NCA draft constitution, which would devolve the central government’s powers to provinces and local authorities. We also discussed the advantages and disadvantages of devolution.

In this Part we shall deal with some of the issues which must be settled before devolution of power can take place. It is not enough for the constitutional outreach exercise to conclude [if it does] that most people want devolution: the constitution-makers will have to tackle these issues if devolution of power is to become a reality in Zimbabwe.

Issues to be Considered

1. How many provinces should there be?

This basic question is not easy to answer. The present Constitution is surprisingly ambiguous. In section 113 it defines the word “province” in such a way as to allow an Act of Parliament to fix the number and boundaries of provinces, while in section 34(1)(a) it suggests that (for electoral purposes at least) there should be 10 provinces. The Kariba Draft provides for 10 provinces whose boundaries are to be set out in an Act of Parliament, while the NCA draft constitution limits the number to five with their boundaries set out in a Schedule to the draft.

Obviously, if real power is to be given to provinces their number must be stated clearly in the Constitution, particularly if some members of Parliament are to be elected on a provincial basis. There is probably no need for provincial boundaries to be fixed in the Constitution, so long as the central government is not able to change the boundaries at will - in other words, boundary changes should require the consent of the provinces concerned.

2. Should the provinces form the basis of a federal structure?

There is no clear dividing line between a unitary State which has devolved powers to provinces and local authorities, and a federal State composed of semi-autonomous provinces. The answer to this question therefore depends largely on the extent of the powers that are devolved to the provinces (which is the next question). It may be noted, however, that the South African constitution gives a nod to federalism by allowing the provincial legislatures to adopt their own constitutions.

3. What functions should be devolved to provinces?

The central government should obviously retain some functions, particularly those that affect the welfare of the country as a whole. These would include:

• international relations and defence (though in the United States individual states have their own armed forces);
• communications such as railways, national roads and telecommunications;
• immigration and emigration;
• taxation, in so far as it is imposed by the central government.

But apart from those, the range of functions that can be devolved is limited only by the capacity of provincial and local authorities to exercise them and the willingness of central government to shed them. Education, for example, can be devolved to the provinces unless the central government wants to preserve national standards. Some functions can be shared: the provinces may be allowed to establish their own police forces, for instance, while the national police retain overall responsibility for enforcing the law. And there are some functions, such as town and country planning, which are most appropriately exercised at a local or provincial level.

4. How far should provincial governments control resources in their provinces and receive the benefit of those resources?

This problem is particularly acute in relation to mineral resources. Should provincial governments of Manicaland and Matabeleland, for example, have the right to allocate mineral rights over diamonds and coal, and to what extent should the people of those provinces benefit from the exploitation of “their” minerals? Neither question is easy to answer but there must be some equitable sharing of responsibilities and benefits if provincialisation is to work. It has to be remembered that while the diamonds and coal are situated in Manicaland and Matabeleland, those provinces are situated in Zimbabwe so Zimbabweans as a whole must obtain some benefit from them.

The problem goes further than minerals and relates to all forms of revenue. Should a provincial government be allowed to retain taxes and duties raised within the province? The answer is probably not, if the taxes and duties are collected by the central government provided there is some form of equitable sharing of revenues between the central and provincial governments. It would not be fair, for example, for the province of Masvingo to retain all the customs duties collected at Beitbridge, particularly if the goods on which the duties are levied are destined for other provinces in Zimbabwe.

So far as the new constitution is concerned, it probably cannot go further than the South African constitution (which is echoed in the NCA draft) by stating that an Act of the national parliament must provide for the equitable division of national revenue between the national, provincial and local spheres of government. In other words the new constitution should simply state that revenues must be shared equitably, and leave it to an Act of the central parliament, made in consultation with the provincial governments, to work out the details.

5. What sources of revenue should provincial and local governments have?

Obviously, if provincial and local governments have functions to perform they must be given the resources to do so. They should not have to rely solely on the central government for these resources, but should be able to raise their own revenues. Their revenue-raising powers cannot be unlimited, however:

• They should not be allowed to levy their own customs duties, for instance. If each province had its own border-post and taxed goods going in and out of the province, inter-provincial trade would suffer to the detriment of the national economy.
• In theory there can be no objection to provinces levying their own income taxes or V.A.T., though their power to do so may need to be limited in order to avoid prejudice to the national economy. Levying taxes can be a costly matter, however, and if provinces assume this function they may have to increase their bureaucracies and, as a result, the burden of costs they impose on the people of their province.
• Rates and other taxes on immovable property seem an ideal form of taxation for provincial and local governments, so long as there is some co-ordination between the taxes raised by a provincial government and the local authorities within the province. It should not be forgotten that rates, like other taxes, can be used to achieve social purposes in addition to raising revenue. Rates may be imposed, for example, in order to break up large land-holdings and encourage a redistribution of land.

To devolve functions and responsibilities without giving provinces and local authorities the financial resources to carry them out would result in ineffectual performance of functions and would result in a blame game as happened in the past - national government blaming local government and vice versa, with ordinary citizens being the losers.

6. What legislative powers should provincial and local governments have?

The answer to this depends on the functions that have been devolved to them. The greater the range of devolved functions, the greater should be the legislative powers of provincial and local governments.

A more difficult question is how far should provincial and local legislation be subordinate to national legislation passed by the central parliament. If national legislation can simply override provincial or local legislation, then the provincial and local governments will have no real autonomy. On the other hand, there must be some circumstances in which the central government, acting in the national interest, can overrule provincial or local governments. In the NCA draft constitution there is a provision which would allow the national parliament, by a two-thirds majority, to nullify provincial legislation which is prejudicial to the interests of the country or another province. The South African constitution is more detailed and nuanced, dealing with the resolution of conflicts between national and provincial legislation and setting out limited circumstances in which national laws prevail over provincial laws.

7. What should the relationship be between provincial and local governments?

Put another way, should municipal and district councils be autonomous or, if they are to be subject to control, should the control be exercised by the central government or by the government of the province within which they are situated?

The question is not answered clearly in either the Kariba draft or the NCA draft constitution. The Kariba draft seems to put local authorities under the control of the central government, while the NCA draft states that their powers must be exercised “subject to national and provincial legislation”: in other words, they are to be controlled both nationally and provincially.

The South African constitution takes a different approach by emphasising the independence of municipalities: both national and provincial governments “must support and strengthen the capacity of municipalities to manage their own affairs” and “may not compromise or impede a municipality’s ability or right to exercise its functions.” This seems sensible. If the new constitution deals with local authorities it should give them full autonomy within their spheres of responsibility, otherwise there is no point in mentioning them at all.

Conclusion

Three final points need to be emphasised:

1. The most important and difficult of the issues listed above can be summed up in two words: resources and finance. To what extent should the natural resources within a province be shared between the province and the rest of the country; and how can provincial and local governments obtain the necessary finances to carry out functions that have been devolved upon them? The success of any measure of devolution, and possibly of the entire constitution-making process, will depend on our finding satisfactory and democratic solutions to those problems.

2. Secondly, devolution must be accompanied by measures to ensure that provincial and local governments are democratic, transparent and accountable. In the absence of such measures there provincial and local governments will be inefficient and corrupt, and incapable of gaining and retaining the trust of the people.

3. Finally, devolution or provincialisation is not in itself a panacea for all the country’s ills. It will not prevent atrocities such as Gukurahundi from occurring, nor will it assist the victims of such atrocities from obtaining redress. For that to happen, there must be a change in our entire political culture and philosophy, rather than a mere change in the institutions through which that culture and philosophy is expressed.

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