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effect to the new Constitution: Local government: ministers, mayors
and money - Constitution Watch 37/2013
October 06, 2013
to the New Constitution: Local government: ministers, mayors and
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.
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:
and implementing social and economic development activities;
and implementing governmental programmes;
and implementing measures for the conservation, improvement and
management of natural resources;
tourism and developing facilities for that purpose;
and evaluating the use of resources.
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.
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?
One starts with
the Constitution, the supreme law.
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.
[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.
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.
Urban Councils Act
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.
Rural District Councils Act
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.
a political party “impose” mayors and chairpersons on
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.
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
Mayor or chairperson
- A vacancy must be filled by a councillor elected by the council
ZEC must within the next 90 days hold a by-election to fill the
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]:
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
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]
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
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.
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.
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
therefore, do not give local authorities power to write off their
debts in the way the Minister has ordered them to.
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
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
- 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
- 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.
directive was therefore illegal, and councils not only may but must
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.
Minister was wrong.
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.
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
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,
makes every effort to ensure reliable information, but cannot take
legal responsibility for information supplied
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