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Devolution Part 2- Constitution Watch - Content Series 3/2010
August 22, 2010
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
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.
to be Considered
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.
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.
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.
functions should be devolved to provinces?
government should obviously retain some functions, particularly
those that affect the welfare of the country as a whole. These would
relations and defence (though in the United States individual
states have their own armed forces);
such as railways, national roads and telecommunications;
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.
far should provincial governments control resources in their provinces
and receive the benefit of those resources?
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.
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.
sources of revenue should provincial and local governments have?
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
- 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.
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
should the relationship be between provincial and local governments?
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?
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.
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.
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.
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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