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Local Government and the Constitution - Constitution Watch 2011
- Content Series 7/2011
September 20, 2011
Constitution Watches, how far the new constitution should devolve
or transfer power from the central government to provincial governments
was considered. In this Constitution Watch the same question in
regard to local authorities will be considered – asking how
much independence they should have and what powers they should be
Note: the terms
“local authorities” and “local government”
are used to mean cities, municipalities and towns established for
urban areas, and rural district councils established for the rural
areas of Zimbabwe.
Constitution does not deal with local government. In this country,
as in the United Kingdom, power is given to local authorities by
Acts of Parliament, namely the Urban
Councils Act and the Rural District Councils Act. Both these
Acts vest considerable powers in the central government. For example:
- The President
on the advice of Cabinet can establish local authorities without
the consent of the people who live in the area [though they must
be consulted], and he can abolish local authorities and alter
their areas without the consent of the authorities themselves.
- The Minister
responsible for local government has virtually unfettered powers
to suspend elected councillors for suspected misconduct and, after
investigation, to dismiss them. No formal enquiry or judicial
involvement is required; the nature of the enquiry and who conducts
it is not specified. A disaffected councillor’s only recourse
is to take the Minister’s decision to the High Court for
review, which means that he cannot challenge the merits of the
decision, only the way in which it was reached.
made by local authorities must be approved by the Minister before
they are enacted. The Minister therefore can veto all by-laws.
- Rents and
service charges must be approved by the Minister before local
authorities can levy them in high-density areas.
- The Minister
may prohibit rural district councils from passing resolutions
on any particular subject without his approval; he therefore has
a veto over those resolutions.
- The Minister
appoints the Local Government Board which regulates conditions
of service for senior employees of local authorities.
- Urban councils
cannot appoint or dismiss senior employees, including town clerks,
without the approval of the Local Government Board
- The Minister
may give urban and rural councils directives as to the policies
they must follow, if he considers such directives necessary in
the national interest. Councils must obey the directives.
- The Minister
can direct a council to reverse, suspend or rescind any resolution,
decision or action if he thinks it is not in the interests of
the inhabitants of the council area or is not in the national
or public interest.
are profoundly undemocratic, and there can be little doubt that
in recent years they have been used for partisan political purposes.
For example, shortly after the MDC took power in Harare in 1999,
the Minister suspended the entire council and replaced it with his
own nominees - who remained in office after their six-month term
expired and were re-appointed unlawfully for several years.
Local Authorities be Given More Autonomy?
for giving local authorities more autonomy [i.e. independence] are
largely based on the premise – which is difficult to argue
with – that councillors who live and work in an area are more
attuned to local sentiment than politicians based in a distant capital,
and are better able to find out what services local people need
and how those services can best be provided. Many issues are local
only and should not concern the central government. On the other
hand, there are dangers to be considered in giving local authorities
local authorities may adopt different policies or may implement
the same policies in different ways. This is not always a bad
thing, but it can result in different levels of service provision
and benefits in different areas. It may also make it difficult
to implement national policies dealing with country-wide issues
such as water conservation.
- Too much
local autonomy may entrench local prejudices and lead local authorities
to develop isolationist attitudes, inhibiting co-operation with
central government and other local authorities.
- The more
levels of government that are imposed on the country, the greater
the burden, particularly the financial burden, becomes for ordinary
people. This extra cost must be weighed against the benefits that
accrue from local government.
- Clearly a
balance must be struck between allowing local authorities freedom
to deal with local issues, while ensuring they do not hinder the
central government from performing its task of setting and implementing
national policies. It is clear, however, that our local authorities
should be given more powers of self-government than they have
the Powers of Local Authorities be Laid Down in the Constitution?
The reason why
local authorities in Zimbabwe have so little autonomy is largely
because their powers derive from Acts of Parliament
rather than the Constitution, and they can reduced at any time.
If local authorities are to be protected against undue control and
interference, then their autonomy must be upheld in the new constitution
rather than by Act of Parliament. The Kenyan and South African constitutions
both recognise a degree of autonomy for local government as a necessary
part of democracy. Section 174 of the Kenyan constitution states
that the objects of devolving government are, amongst other things:
- to promote
democratic and accountable exercise of power;
- to foster
national unity by recognising diversity;
- to recognise
the right of communities to manage their own affairs and to further
- to ensure
equitable sharing of national and local resources throughout Kenya.
All these desirable
objectives are applicable to Zimbabwe. Section 152 of the South
African Constitution is to the same effect.
to be Considered
There are several
contentious issues that need to be dealt with in the new constitution
when devolving power to local authorities:
At present local
authorities raise revenue through rates, rents, licence fees, charges
for services, parking charges, and so on; but this is not enough
to fund the services they are expected to provide. Further revenue
must be found, and it can only come through taxation or from grants
by central government. If local authorities are allowed to impose
taxes in their areas, the question arises whether their taxes should
be imposed in place of or in addition to national taxes. Whichever
answer is given to that question, there may be difficulties:
- If local
authority taxes are substitutes for national taxes, then the new
constitution will have to devise a system for determining which
taxes can be imposed by the central government and which by local
authorities. If there is no such system, the central government
is likely to tax all the most lucrative sources of revenue, leaving
local authorities with little or nothing.
- If local
authority taxes are imposed in addition to national taxes, then
many people will find themselves doubly taxed and in some cases
over-taxed. Furthermore there may be difficulties in collecting
local taxes, and the process of tax remittance could become an
administrative nightmare for taxpayers.
is whether there should be uniformity in taxation as between local
authorities. The answer here is probably not, because local authorities
should be able to compete for investment through tax concessions.
It will not
be feasible for the new constitution to lay down precise rules for
local authority taxation. All it will be able to do is to give local
authorities taxing powers [extensive or limited, as the constitution-makers
may decide] and leave the details to be sorted out by the national
legislature, i.e. by Parliament. This is how the constitutions of
the Philippines and South Africa, for example, deal with the matter,
though they differ in that the Philippines constitution gives local
authorities broad taxing powers while the South African constitution
prohibits them from raising income taxes, VAT, sales taxes or customs
If local authorities
are to receive additional funding through grants from the central
government, the new constitution will need to specify this and lay
down some way of ensuring that local authorities receive adequate
funding. If the constitution leaves the amount of the grants to
the discretion of the central government then local authorities
will almost certainly be starved of revenue, as they are at present.
The South African constitution seeks to resolve this problem by
stating that national revenues must be equitably divided between
the central, provincial and local spheres of government, their respective
shares being determined after consultation between representatives
of the three spheres and a constitutional Finance and Fiscal Commission.
In Zimbabwe the Law Society’s draft
model constitution adopts the same idea.
with central government and provincial governments
is desirable for local authorities to be given broad autonomy within
their sphere of operation, their autonomy cannot be absolute because,
as already suggested, the central government must be able to set
and implement national policies to deal with national issues. Furthermore,
the central government should have power to compel local authorities
to meet minimal standards of good governance, particularly in financial
matters, for example by ensuring that they operate transparently
and adhere to proper accounting standards.
What if a local
authority fails to carry out its statutory duties? Should one of
the other spheres of government be able to take action, or should
it be left to local residents to do so? In South Africa, if a municipality
cannot or does not fulfil an executive obligation in terms of the
constitution or legislation, a provincial executive may intervene
by taking any appropriate steps to ensure fulfilment of the obligation.
The steps that may be taken include: directing the municipal council
to fulfil its obligation; assuming responsibility for the obligation,
so far as is necessary to maintain essential standards or to prevent
prejudice to other local authorities or to the whole province; or
in exceptional circumstances dissolving the municipal council and
appointing an administrator pending fresh elections. The central
government can take similar steps if a municipal council persistently
fails to provide basic services, or fails to keep proper control
of its finances or is unable to meet its financial obligations.
The grounds on which such interference can take place are fairly
limited. Neither the central government nor a provincial government
can interfere with a municipality merely because it disagrees with
the municipal council’s policies or politics.
Should the central
government be able to interfere with an urban council indirectly,
by imposing another layer of government on it? This happened in
Zimbabwe, when new provinces, each headed by a provincial governor,
were created in Harare and Bulawayo, apparently with the intention
of diminishing the power of the “opposition-led” city
councils. The President was able to do this in terms of s 3 of the
Provincial Councils and Administration Act without consulting anyone.
Such manipulation of the local government system should not be allowed
under the new constitution.
powers should local authorities have?
which fall under a local authority’s control, and the extent
of its legislative powers [i.e. its power to make by-laws] will
need careful consideration by the constitution-makers. The South
African Constitution gives municipal councils power over the following
things, amongst others: air pollution, building standards, electricity
reticulation, roads, public transport, municipal planning, fire-fighting,
health services, trading, markets, water and sanitation - in other
words, amenities and facilities that affect the lives of people
living in municipal areas. Similar powers should be given to local
authorities under the new Zimbabwean constitution.
system of government should local authorities have?
It would be
unrealistic to expect the new constitution to lay down in detail
the governmental structure of local authorities, i.e. how many councillors
there should be, how they are elected or appointed, and so on. These
matters must be dealt with in an Act of Parliament. It is worth
noting, however, that neither the Urban Councils Act, which governs
municipalities and towns in Zimbabwe, nor the Rural District Councils
Act, which governs rural district councils, give residents of an
area the right to decide for themselves what the structure of their
local authority should be. These matters are all laid down in the
Acts themselves; in other words, they are decreed by the national
Parliament and only Parliament can change them.
approach can lead to abuse, as illustrated by the system of salaried
executive mayors which was introduced in the 1990s, although there
was little or no public demand for the system. Executive mayors
received mansions and expensive motor cars, benefits which the various
cities and towns could scarcely afford. In 2008 Parliament abolished
the system and there was a return to non-executive, non-salaried
ceremonial mayors. If there had been greater consultation with residents
of the municipalities concerned, this unnecessary and expensive
experiment might have been avoided.
In the new constitution,
once powers have been devolved via the constitution, provision can
and perhaps ought to be made for residents of an area in which a
local authority is to be established, to decide on the form and
structure of that local authority – in other words, to draw
up a constitution for their local authority. [For example cities
in the US have their own Charters.] This would ensure local authorities
are “people driven” and promote democracy and accountability.
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