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Giving effect to the new Constitution: Local government: ministers, mayors and money - Constitution Watch 37/2013
Veritas
October 06, 2013

Giving effect to the New Constitution: Local government: ministers, mayors and money

1. Appointment of Ministers of State for Provincial Affairs

On 11th September it was announced that the President had appointed ten “Ministers of State for Provincial Affairs”, one for each province. The announcement did not explain what their precise functions would be nor how they would interact with the chairpersons of provincial and metropolitan councils established by Chapter 14 of the Constitution. It has been suggested that they may be provincial governors under another name, and doubt expressed about the validity of their appointment.

The President has a wide discretion when appointing Ministers under section 104 of the Constitution: he is not restricted in the number of Ministers he can appoint or in the functions he can assign to them. Although section 5 of the Constitution distinguishes between the national and provincial tiers of government, there is no suggestion that the President cannot assign a Minister functions restricted to a particular geographical area such as a province. It seems, then, that the President was entitled to appoint the ten Ministers.

The issue of their functions - i.e. how they will interact with provincial and metropolitan councils and their chairpersons - is not so simple. Section 270 of the Constitution gives provincial councils responsibility for the following functions within their provinces:

• planning and implementing social and economic development activities;
• co-ordinating and implementing governmental programmes;
• planning and implementing measures for the conservation, improvement and management of natural resources;
• promoting tourism and developing facilities for that purpose;
• monitoring and evaluating the use of resources.

These functions are very similar to those that were exercised by provincial governors under section 10 of the Provincial Councils and Administration Act. The new Ministers of State for Provincial Affairs cannot be given the same functions, because they would then encroach upon the constitutional responsibilities of provincial councils. Although the Constitution does not specifically prohibit such encroachment - that is to say, it does not expressly prohibit the central government from exercising the functions conferred on provincial and metropolitan councils - it would be contrary to the spirit of devolution set out in Chapter 14 of the Constitution for Ministers to be given those functions.

If the purpose of appointing Ministers of State for Provincial Affairs was to direct the activities of provincial and local councils, then their appointment was constitutionally questionable since it would be incompatible with the devolution of power and responsibilities to those councils.

2. Election or imposition of mayors and chairpersons of local authorities

Before the recent elections of mayors and chairpersons of local councils, the MDC-T party wanted its councillors to elect persons who had been selected by the party leadership, but who had not been elected to the councils. The Ministry of Local Government, on the other hand, maintained that only councillors could be elected mayors or chairpersons. The party applied to the High Court for an order resolving the issue, but the court dismissed the application on the questionable ground that it was not urgent [questionable because the elections were imminent and the issue was an important one affecting many people other than the applicant party]. The issue therefore remained unresolved. What is the legal position?

The Constitution

One starts with the Constitution, the supreme law.

Section 265(2) of the Constitution states that all members of local authorities i.e. urban and rural district councils “must be elected by registered voters within the areas for which the local authorities are established”. Although the definition of “member” in section 332 is not decisive on the point, it seems obvious that mayors and chairpersons must be regarded as members of the councils over which they preside. If so, then they must be elected by registered voters within the council areas.

Urban councils [cities, municipalities and towns] must be presided over by mayors or chairpersons who are elected at the first sittings of the councils following a general election [sections 274 and 277(2) of the institution]. Since the mayors and chairpersons should be regarded as members of their councils, as noted above, and therefore must have been elected by registered voters within the council areas, it follows that at their first sitting councillors must elect one of themselves to be mayor or chairperson. They cannot elect an outsider.

Rural district councils are presided over by chairpersons elected in accordance with an Act of Parliament [section 275(2) of the Constitution]. As with urban councils, and for the same reasons given above, the chairpersons must themselves have already been elected as councillors; in other words, outsiders cannot be elected as chairpersons.

The Urban Councils Act

The Urban Councils Act, as its name suggests, regulates the affairs of cities, municipalities, towns and local boards. Section 103 of the Act states that at the first council meeting after a general election, the councillors of a city or municipal council must elect one councillor “or other person” to be mayor and another councillor to be deputy mayor; in the case of a town council the councillors must elect one councillor to be the chairperson and another to be deputy chairperson of the town. So the Act is in conformity with the Constitution in so far as it requires councillors to elect their mayors and chairpersons at their first meeting, but not to the extent that it permits persons who are not councillors to be elected as mayor of a city or municipality. To that extent it is not been aligned with the new Constitution, so the words “or other person” in section 103 must be disregarded.

The Rural District Councils Act

Rural district councils are regulated by the Rural District Councils Act. Under section 45 of the Act, at the first meeting of councillors after a general election they must elect “from among their number” a chairperson and a vice-chairperson of the council. Only councillors are eligible for election. These provisions are entirely in conformity with the Constitution.

Can a political party “impose” mayors and chairpersons on local authorities?

There is nothing in the law that prohibits a political party from encouraging its councillors to vote for a particular candidate, even if the encouragement amounts to an order and even if the councillors are threatened with disciplinary action if they vote for anyone else. In this respect councillors who are elected on a party ticket are no more independent than members of Parliament. Members of Parliament are theoretically supposed to vote according to their conscience but in practice usually cast their votes as directed by their party whips. The fact that party loyalty rather than individual conscience dictates how they vote does not affect the validity of their votes.

Whether a political party should tell its councillors how to vote is another matter. If elections of mayors and chairpersons are to be directed from a central political authority, local authorities may be saddled with office-holders who meekly carry out their party’s wishes rather than fearlessly uphold the interests of their councils - hardly a recipe for a vibrant, independent system of local government.

Can the MDC-T dismiss mayors and councillors for indiscipline?

In the recent mayoral elections some MDC-T councillors voted contrary to directives from party headquarters, instead supporting the Zanu-PF candidates or an MDC-T candidate not nominated by the party. The media reported on 23 September that the MDC-T had fired 15 of its councillors for indiscipline. The MDC-T spokesperson has said this is incorrect and that what they have done is to set up a disciplinary panel to consider whether “rebel” councillors be expelled from the party. If they expel any councillors from the party, the next steps are regulated by section 278 of the Constitution which provides that the seat of a mayor, chairperson or councillor in a local authority automatically becomes vacant as soon as a political party has written to the Minister of Local Government that the member has ceased to belong to the party. But, the party would have no right to fill a vacant seat simply by nominating another qualified party member.

To fill a local authority vacancy:

Mayor or chairperson - A vacancy must be filled by a councillor elected by the council concerned.

Councillor - ZEC must within the next 90 days hold a by-election to fill the vacancy.

3. Writing off and prescription of local authority debts

Before the election, the Minister of Local Government announced that he had issued a circular to all local authorities i.e. urban and rural district councils, which were in fact at that time being run by commissioners appointed by the Minister [see note below]:

• directing them, in terms of section 133 of the Rural District Councils Act and section 303 of the Urban Councils Act, to write off debts in respect of rents, unit taxes, development levies, licences and refuse charges owed by individual [i.e. non-corporate] ratepayers as at 30 June, 2013, and
• stating that amounts owed by individuals in respect of rates since February 2009 stand prescribed in terms of the Prescription Act, i.e. that the debts have been extinguished by the passage of time and are no longer owed. [The wording of the directive was garbled, but this reflects the gist of it]

The announcement was dismissed as an election gimmick but the Minister has stuck to it since his reappointment to the local government portfolio, so it is important to see if he can indeed give such directives to local authorities and if his reading of the Prescription Act is correct.

Can local authorities write off debts?

As a general rule, public bodies such as local authorities are not allowed to write off debts owed to them unless an Act of Parliament specifically allows them to do so. There is a good reason for this rule: local authorities’ revenues are trust money in which ratepayers have an interest, and the authorities have a duty towards their ratepayers as a whole to collect those revenues.

Both the Urban Councils Act and the Rural District Councils Act give councils a limited power to write off debts.

Under section 283 of the Urban Councils Act, an urban council can write off rates which have remained unpaid for at least five years if the council considers they cannot be recovered or that the expense and difficulty of recovering them would be greater than the amount owed; it can write off unpaid rates before the five-year period has elapsed if the person who owes them has become insolvent or, in the case of a company, has gone into liquidation. Other debts can be written off under section 303 of the Act if the council considers the debts irrecoverable or that they are not worth recovering.

Section 133 of the Rural District Councils Act gives rural district councils a similar power to write off unpaid debts: under the section, councils cannot write off amounts due for charges such as levies and rates until the amounts have been unpaid for at least five years, and then only if the councils consider them irrecoverable or uneconomic to recover.

These provisions, therefore, do not give local authorities power to write off their debts in the way the Minister has ordered them to.

Can the Minister order local authorities to write off debts?

To what extent can the Minister, by issuing directives to local authorities, compel them to write off debts in circumstances not envisaged by the sections of the Urban Councils Act and the Rural District Councils Act considered above; in other words, can the Minister, by issuing a directive, authorise or require councils to write off all their outstanding debts?

The first and most obvious point to make is that the Minister cannot order councils to do something they are not allowed to do and, as pointed out above, councils cannot write off debts except to the extent that they are specifically allowed to do by statute.

The second point is that the Minister’s power to issue directives to councils is limited:

• Under section 313 of the Urban Councils Act, he can give a council “such directions of a general character as to the policy it is to observe in the exercise of its functions, as appear to the Minister to be requisite in the national interest.” The directive which the Minister issued was not of a general character; it did not relate merely to policy; and, as already noted, it directed councils to do something they cannot do, i.e. to go beyond their statutory functions.
• Under section 155 of the Rural District Councils Act, if a council has failed to carry out a statutory duty, he may direct the council to take specified action to remedy the situation. Again, this section does not authorise the Minister to direct councils to do something they cannot do.

The Minister’s directive was therefore illegal, and councils not only may but must disregard it.

Have debts for rates outstanding since 2009 prescribed?

In his directive the Minister said that amounts owed by residents for rates since February 2009 had become prescribed, i.e. that the debts had been extinguished by the lapse of time.

The Minister was wrong.

The Prescription Act provides for the extinction of debts by the passage of time: debts are extinguished if they remain unpaid for periods which vary according to the type of debt. Some debts are extinguished after as little as three years which may be the period the Minister had in mind in his circular but others after as long as 30 years.

According to section 15(a)(iii) of the Prescription Act, debts “in respect of taxation imposed or levied by or under an enactment” are extinguished after 30 years. Municipal and rural district council rates and levies are imposed under Acts of Parliament - the Urban Councils Act and the Rural District Councils Act, respectively - and are a form of taxation. Debts in respect of rates and levies are therefore covered by section 15(a)(iii) of the Prescription Act and remain recoverable for 30 years. The point is obvious; indeed, as a judge suggested in a case in which the question arose, it is almost axiomatic.

Hence, contrary to what the Minister said, debts which residents owed for rates as at February 2009 will not become prescribed [i.e. will not be extinguished] until 2039.

Note: in Constitution Watch 32/2013 of 4th July 2013 [Local Authorities: Is their Early Demise Constitutional?] Veritas argued that the Secretary for Local Government’s letter to all local authorities that their councils stood dissolved, and were replaced by appointed caretakers and commissions to run the local authorities until the election of new councillors, was unconstitutional.

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