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Summary of Private Member's Bill to amend the Urban Councils Act - Bill Watch 48/2011
Veritas
November 08, 2011

Both Houses of Parliament are adjourned until 15th November

Summary of Private Member’s Bill to amend the Urban Councils Act

On 25th October, when seeking – and obtaining – the leave of the House of Assembly to introduce his Bill to amend the Urban Councils Act, Hon Matimba explained that the object of the Bill was to reduce “the powers of central government over municipal and town councils, thereby encouraging democracy at local levels”. The 35-clause Bill has been professionally drafted and is accompanied by a detailed memorandum prepared by the drafter, explaining in clear terms the effect of each clause.

The proposed amendments include:

• No appointed council members: The Bill will revoke the power presently held by the Minister of Local Government, Rural and Urban Development to appoint non-voting members of municipal and town councils “to represent special interests”. This means that if the Bill becomes law all councillors will be elected. [The Minister’s use of this power has been controversial, resulting in accusations that his appointees are merely ex-councillors defeated at the last council elections, in no way representative of special interests as envisaged by the Act.]
  
• Ministerial powers abolished: The Bill proposes the abolition of the Minister’s powers (1) to give policy directions to a council; (2) to order a council to reverse, suspend or rescind resolutions and other council actions; (3) to order a council to make certain by-laws or to adopt model by-laws; (4) to order two or more councils to combine to provide services jointly; (5) to veto proposed council by-laws [instead he will be limited to asking a council to reconsider by-laws on strictly limited grounds].
  
• Suspension and dismissal of councillors: The Minister’s power to suspend councillors on suspicion of corruption or other misconduct will remain, but under stricter controls requiring prompt institution of investigations and completion within 60 days. But the Minister will not be able to dismiss a councillor – if the Minister thinks an investigation reveals grounds for dismissal, he or she will have to apply to the High Court for an order of dismissal, meaning that the decision to dismiss will be taken by a High Court judge. [Note: Last week Justice Patel set aside the Minister’s dismissal of several Harare city councillors, ruling that the Minister’s decision was irrational.]
  
• Appointment of “caretakers” to require consultation with Parliament: The Minister’s power to appoint caretakers to run a council’s affairs if there are no councillors, or if all councillors have been suspended, will only be exercised after consultation with the Parliamentary portfolio committee on local government. Caretakers will hold office for a maximum of 90 days, non-extendable, pending the election of new councillors.
  
• Council’s agreement required before Ministerial powers exercised: At present the Minister can exercise certain powers after merely “consulting” councils, i.e., without their agreement. Under the Bill the Minister will be unable to act without council agreement in such matters as: conferring or removing council responsibility for administering a local government area; changing a council’s area; or abolishing a council.
  
• Mayor must be an elected councillor: At present a council may elect as its mayor a person who is not a councillor; Harare is a case in point. Under the Bill a mayor must be chosen from among the elected councillors. Existing non-councillor mayors will however continue to serve until the expiry of their terms of office.
  
• Appointment of council auditors: At present a council must appoint an auditor approved by the Minister and the auditor need not be a registered auditor. The Bill will remove the need for the Minister’s approval and substitute a requirement that all auditors must be registered as such under the Public Accountants and Auditors Act.

Parliamentary Update

By-Elections

The Attorney General’s Office has confirmed that the State has noted an appeal against the decision of Justice Ndou in the High Court in Bulawayo on 13th October ordering the President to call by-elections within 14 days in the House of Assembly constituencies of Lupane East, Nkayi South and Bulilima East. These Matabeleland constituencies have been vacant since August 2009. [Reminder: calling by-elections is the duty of the President, not the Zimbabwe Electoral Commission, and the Electoral Act says the President must call a by-election within 14 days of a vacancy being officially notified to his office by Parliament.]

The State’s appeal will deter further court cases calling for by-elections in the other unrepresented constituencies. Vacancies have been accumulating since July 2008, and no by-elections have been called. There are now 18 vacant seats in the House of Assembly and Senate. The vacancies do not in fact alter the voting majorities in either House, but the failure to fill the seats means that citizens in these constituencies are denied their constitutional right to have a representative in Parliament.

Threats to Hon Eddie Cross MP a Contempt of Parliament?

On 27th October Hon Cross’s motion calling for the nationalisation of the Chiadzwa diamond fields was approved by the House of Assembly. Mr Cross has since published a statement describing how immediately after the debate he was threatened by a ZANU-PF member of the House [“we will investigate and come after you”] and also how, three days later, while en route to Bulawayo he was accosted, warned that he was being “monitored” and subjected to threats by a person who identified himself as a CIO operative. The context of both incidents indicate that the threats were prompted by Mr Cross’s speech in the House when proposing his motion. These facts suggest that a serious contempt of Parliament may have been committed – paragraph 13 of the Schedule to the Privileges, Immunities and Powers of Parliament Act states that a contempt of Parliament is committed by any person “making any oral or written threat to a member … on account of his conduct in Parliament or a committee.” Contempt of Parliament may be punished by Parliament itself after an investigation by a Privileges Committee – or by a court following conviction in an ordinary criminal trial; the penalty that may be imposed is a fine of up to $400 or up to 2 years’ imprisonment or both.

Deputy Minister of Labour and Social Services Mutinhiri

Although she lost her seat in the House of Assembly on 14th September 2011, following her expulsion from ZANU-PF and the party’s communication of that fact to the Speaker, the President has not removed Mrs Mutinhiri from office the Deputy Minister of Labour and Social Services. Under the Constitution she can remain in office as Deputy Minister without being a member of Parliament – but only for three months, i.e., until the 14th December 2011.

MPs’ Sitting Allowances

Since the present Parliament first met on 26th August 2008 neither members of the House of Assembly nor Senators have been paid their sitting allowances – the allowances paid for each sitting of the House or the Senate actually attended. On 12th October the Minister of Constitutional and Parliamentary Affairs, after reminding members of the House during Question Time that fixing allowances is the responsibility of the President, said that the Speaker had written to the President recommending that members of the House and Senators should get a sitting allowance of $75 for each sitting attended, backdated to August 2008. But since then it has been announced that “the principals”, i.e. the three GPA party leaders, have agreed to the figure of $75 per sitting, but not the backdating, so that allowances will only be paid for sittings attended from 1st November 2011 onwards.

MP’s have for many years been entitled to sitting allowances and this fact has often been used as a justification for not paying them higher salaries. Under the Parliamentary Salaries, Allowances and Benefits Act allowances become legally payable only once they have been specified by the President in regulations published in the Government Gazette. No such regulations have been gazetted since 2003, when allowances were set at a now meaningless figure in Zimbabwe dollars. This means that at present there is no legal basis for back paying allowances but it is only fair that it should be done as a matter of natural justice. In fact, even the $75 dollars daily sitting allowance from 1st November has no present legal basis – but this could be remedied by gazetting regulations before the end of the month. There has been an angry reaction to the principals’ decision from MPs of all parties, and the Speaker, Mr Lovemore Moyo has said that he will challenge the principals’ decision; presumably this means he will try to convince the principals.

Status of Bills

Bills Passed by Parliament awaiting gazetting as Acts

• Deposit Protection Corporation Bill [final reading in Parliament – 2nd August]
• Small Enterprises Development Corporation Amendment Bill [final reading in Parliament – 12th July]

Bills Awaiting Presentation

• Older Persons Bill [gazetted 9th September – to be presented by the Minister of Labour and Social Services]
• Urban Councils Amendment Bill [Private Member’s Bill to be presented by Hon Matimba of MDC-T]

Government Gazette dated 4th November

No Bills or Acts were gazetted in this week’s Government Gazette.

Statutory Instruments: Only two SIs were gazetted [electronic versions NOT available]:

SI 127/2011 - amendments to the Water (Sub-catchment Councils) (Rates) Regulations fixing new charges for applications, permits and registrations, and for the supply of water.

SI 128/2011 - a new collective bargaining agreement for the insurance industry.

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