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Local authorities: Is their early demise and the ignoring of new council boundaries constitutional - Constitution Watch 31/2013
Veritas
July 04, 2013

Introduction

There has been much controversy about constitutionality of the amendment of the Election Law by Presidential Powers regulation and the subsequent court challenges which are before the Constitutional Court today.

With the welter of news about these challenges and the nomination of Presidential and parliamentary candidates for the forthcoming election, perhaps the constitutionality of what is being done in the lead up tothe local authority elections has not been thoroughly questioned.

Elections in Zimbabwe are “harmonised”, and voters will be called upon to vote not only for a new President and Parliament but also for councillors of local authorities and these also must be held within the terms of the Constitution.

Two recent announcements give cause for concern:

• The first is a report that the Minister of Local Government, Rural and Urban Development has appointed caretakers and commissions to run all local authorities following their “automatic dissolution” on the 29th June.
• The second is an advertisement by the Zimbabwe Electoral Commission [ZEC] to the effect that the electoral boundaries for local authority elections will be those delimited in 2008.

Automatic Dissolution of Local Authorities?

According to a report in The Herald, the Secretary for Local Government sent a letter to all local authorities saying that “in terms of section 58(1) of the existing Constitution of the Republic of Zimbabwe, all councils shall be dissolved by the affliction of time [sic: the error may be the reporter’s, not the Secretary’s] on 29 June, 2013.” To avoid disruption of local services, the Secretary said that caretakers and commissions would be appointed to run the local authorities until the election of new councillors.

It seems clear that the Secretary and, presumably, his Minister were acting in the belief that since the life of Parliament came to an end on the 29th June, the terms of office of all local authority councillors also came to an end. Is that so?

Section 58(1) of the former Constitution [viz. the Lancaster House Constitution], which was cited by the Secretary, says nothing about the dissolution of local authority councils; all it says is that a general election and “elections for the governing bodies of local authorities” must be held on a date fixed in a Presidential proclamation. In any event, section 58 is no longer in force, having been superseded by the new constitution when it was published on 22nd May [this is by virtue of paragraph 3(1)(e) of the Sixth Schedule to the new Constitution]. The equivalent provision of the new Constitution, section 158, is substantially the same: it lays down the time-limits for elections and states that general elections to local authorities must take place concurrently with presidential and parliamentary general elections. Nowhere does either provision - sec 58(1) or 158 - state that local authority councils have the same life-span as Parliament; indeed there is no such provision in either Constitution. Nor is there a provision in either Constitution setting any limit to the life of local authorities.

The Minister seems to have assumed, from the fact that parliamentary and local authority elections are harmonised, that local councils are automatically dissolved when Parliament is dissolved. That is a heroic assumption, to put it mildly. Neither the old nor the new Constitution says so expressly, and the fact that elections for different institutions are held together does not necessarily mean that the office-bearers in those institutions must serve the same terms. After all, the President and members of Parliament are elected at the same time but while Parliament has died but the President’s term has not come to an end. He and his Ministers continue in office and will do so until after the next election.

If therefore it had been intended that local authorities expire when Parliament expires, one would have expected a specific statement to that effect in the constitution or in an Act of Parliament.

There is nothing in the Electoral Act or the Urban Councils Act that sets specific time-limits on councillors’ terms of office; this is not surprising in view of the constitutional provisions that require council elections to be harmonised with Presidential and Parliamentary Elections. The Rural District Councils Act], on the other hand, does set a limit. Section 30(1) of the Act states:

“Every elected councillor shall assume office as a councillor on the day following the day of his election, and … shall hold such office until the day following the day on which a new councillor is elected for the ward concerned.”

In other words, councillors remain in office until their successors have been elected - and, quite clearly, the councils themselves remain in place from one election to the next, because one cannot have councillors if there are no councils for them to sit on.

If therefore the Secretary’s letter to local authorities was based on legal advice, then the advice was questionable at best in regard to urban councils and downright wrong in regard to rural district councils.

Delimitation of Local Authority Wards

ZEC’s advertisement, issued by the Chief Elections Officer, stated:

“…notwithstanding the publication of any proclamation creating new local authorities … the electoral boundaries as determined by the Zimbabwe Electoral Commission in its 2008 delimitation report will apply for the 2013 harmonised elections.”

In most cases it will be sensible for ZEC to base the forthcoming local authority council election on the 2008 delimitation of wards, because in most cases they have not been any changes. Paragraph 5 of the Sixth Schedule to the new Constitution waived the usual need for a fresh countrywide delimitation based on population changes, as it was anticipated there would be no time for this between the publication date of the new Constitution and the forthcoming elections – a countrywide delimitation exercise is usually done before new elections but it is a time-consuming process that should be completed at least three months before an election. BUT paragraph 5 does not say that the 2008 electoral boundaries must be used. What it says is:

“The boundaries of provinces, constituencies and wards as they were immediately before the publication day [i.e. 22 May 2013] apply for the purposes of the first election.”

So ZEC may use the 2008 boundaries only to the extent that they were not altered between 2008 and 22nd May 2013. If they ignore those alterations, as the advertisement clearly suggests they intend to do, they will be acting illegally in contravention of pararaph 5 of the Sixth Schedule to the Constitution.

Illegality aside, it will surely be impossible for ZEC to ignore all the post-2008 boundary alterations. New councils have been established: Mbire and Mhondoro-Ngezi Rural District Councils, for example, and Mvurwi Town Council in 2010, and their new boundaries will have to be taken into account if meaningful elections of councillors are to be held.

Because it will be both illegal and in some cases impossible for ZEC to ignore changes to electoral boundaries, it is probable that the advertisement does not accurately reflect ZEC’s true intention. If so, it will be in the public interest for ZEC to clarify as soon as possible what it really means to do.

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