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Local Government and the Constitution - Constitution Watch 2011 - Content Series 7/2011
Veritas
September 20, 2011

In previous 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 given.

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.

The Present Position

The present 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.
  • By-laws 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.

These powers 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.

Should Local Authorities be Given More Autonomy?

The arguments 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 greater autonomy:

  • Different 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 today.

Should 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 their development;
  • 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.

Issues to be Considered

There are several contentious issues that need to be dealt with in the new constitution when devolving power to local authorities:

1) Taxation and revenue

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.

Another question 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 duties.

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.

2) Relationship with central government and provincial governments

Although it 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.

3) What powers should local authorities have?

The matters 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.

4) What 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.

This top-down 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.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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