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Proposals for amendments to legislation on local government
Zimbabwe United Residents Association (ZURA) & Combined Harare Residents' Association (CHRA)
March 2003

The Combined Harare Residents Association (CHRA) under the auspices of Zimbabwe United Residents Association (ZURA) commissioned an audit of the Urban Councils Act [Chapter 29:15] and other related legislation, with a view to discover to what extent public participation in urban local government is entrenched within the legal system.

The results of the audit were presented and discussed at various workshops through out the country as already outlined in the foregoing chapter.

In examining the legislative framework for civic participation in municipal governance, we looked first into the constitution of the Republic of Zimbabwe and other Acts of Parliament in relation to the concepts above. The following are the key points that we note that there are no provisions for in the Constitution of Zimbabwe, and which enshrine a decentralised system of neither urban nor rural local government. We understand that the Draft Constitution of Zimbabwe, which was rejected by the majority of voters in early 2000, had recognised local government and sought to enshrine decentralisation as a principle.

Having established the sad point above, we then examined the Urban Councils Act and the Regional Town and Country Planning Act 1996, which are the two pieces of legislation that guide the day today management of urban councils and landuse planning and management respectively in urban areas in Zimbabwe.

Urban Councils Act 1995

• The Act is characterised by delegation rather than decentralisation of power and functions.
• The Act is built upon the concept of upward accountability and not local accountability. The Minister responsible for local government has a say in many issues and not the local people or civic groups.
• Related to the above, Central Government, and not the local people, retains firm control over all local authorities with powers to suspend the enabling legislation, suspend a local authority and put in an administrator as has been done in the case of City of Harare, and suspend individual councillors and prohibit them from taking active part in local politics
• We did not find any sections that give recognition and acknowledge the existence of civic groups such as residents and ratepayers associations. In Mozambique, the election of representatives into councils is not restricted to partisanship. Civic groups are allowed to nominate a candidate to stand for election.
• The Act provides for the direct election of councillors and mayors by the residents of a town for a term of four years. Residents are therefore free to participate in electing their representatives.
• The Act provides that no meeting of council shall commence before half past four o’clock in the afternoon unless it is an exceptional meeting and the majority of members have agreed to it. What this has done is to exclude the participation of women in council meetings, as councils meetings take place during the time that they are expected to be preparing meals for their families at home. The tendency also is for council meetings to finish off late, normally after 7pm, which is risky for women participants relying on public transport to travel from council meetings.
• In relation to landuse planning, where the council wishes to use a piece of land for parking purposes which is not zoned for such, the council is required to advertise in two issues of a newspaper for such change of use. The Act is silent on the process of public consultation with regards to planning for parking within the city. Recently, changes by Harare City Council on parking policies have been implemented without consultation of the commuting neither public nor the transport operators.
• The Act provides for the establishment of a procurement Board of between 5 and 7 members, and further allows for a technical committee to be established to assist the board.
• The Act provides for the establishment of co-operative companies and co-operative societies to carry on commercial, industrial, agricultural and other activities such as advance moneys and give other assistance. This is the kind of support that we envisage municipal council can give to CBOs and NGOs as a way of supporting their development.
• In formulating bylaws, the act requires consultation with stakeholders. This means that it is not possible for council to formulate a by-law without seeking the opinion of residents.
• With regards to rating of property, the Act provides for objections to be made by residents. There seems to be a tendency for the Act to provide mainly for objections to certain developments, but not so much for initiating development activities or making contributions. It is assumed that such contributions can be made through the elected representative, but when it comes to objections, they are better made by the aggrieved party,.
• Borrowing powers. The Act also provides for public notice, thorough the press, for an application for borrowing powers. The selected medium for disseminating information in the Act presupposes that residents are literate, and that they gain access to the press advertisements. While this is only but a minimum requirement, there is need for wider consultation on borrowing powers and such application, such that residents are able to understand the impact of the burden of borrowing in terms of additional payments that will be required to service the debt.
• The Act requires that the council bylaws and Act be made available for inspection at its offices. The assumption taken by the authors of the Act that there is a fair understanding of the English language and the legal jargon. The Act should impose a duty to make councils bylaws available in local languages for easy understanding.
• On matters of accounts, no conditions are imposed by the Act for dissemination of information to residents on collection, utilisation and balances of moneys belonging to council.

A Review of the Regional Town and Country Planning Act
The RTCP Chapter 29:12 1996 establishes every municipal council, town council, rural district council or local board as the local planning authority for the area under its jurisdiction. The Act gives power to these local planning authorities to prepare, implement, alter, repeal or replace operative master and local plans and approved town schemes. The Act is, in my view, one of the most powerful in Zimbabwe as it deals with land and improvements, regulates land use activities, including the subdivision and consolidation of such land pieces. The extent to which, therefore the act allows for civic participation in urban development is a measure of the prospects for participation in urban development in Zimbabwe.

Regional Planning Councils
The Act provides for the establishment of regional planning councils and their mandate in Part II Section 3 to 9. The Regional Planning Council is established by the President, with the composition of such a council being task of the Minister. Nowhere does the act provide for civic participation in the preparation of the regional plan. Impliedly though, during the preparation of an inventory of the region, existing civic associations may be identified and become used as a resource. Even when the issue at hand is the environment, environmental groups are not considered an important source of information. Further, the composition of the Regional Council is left as a ministerial task, without guidelines on pressure groups or civic associations that need to be represented. In the preparation of the regional plan, civic participation only becomes an issue at the stage of putting the draft regional plan on public exhibit. Persons that the regional planning council are supposed to consult as in Section 7 [1] are those that the Minister will have directed the council to do so. One wonders then for whom the regional plan will be prepared. The provisions of the RTCP in so far as regional planning are inadequate when it comes to public consultation and civic participation in general.

The importance that women’s participation has been accorded in development discourse over the years is yet to find its way in some of the important statutes governing land and development such land. The spirit of the Act is that development is gender neutral, which has been demonstrated in literature that it is not. There is need for the regional plan to be gender sensitive through the inclusion of women representatives, at least.

Master Plans
The preparation of master plans is mandated to local planning authorities as specified earlier on. Before a master plan is prepared, local planning authorities are directed to undertake a study of the planning area. It is through the conduct of the study that the first step of citizen consultation is expected to occur. Further the LPA is directed to consult neighbouring local planning authorities, but not specific interest groups, neither women.

Section 15 of the RTCP dwells on Publicity in Connection with the Master Plan directing that in formulating and determining the contents of the master plan, the LPA shall take steps as will, in its opinion, ensure that there is adequate consultation in connection with the matters proposed to be included in the master plan. This is certainly bounded consultation, first it is the LPA that determines the amount of consultation, and second the consultation is only in connection with matters that are proposed to be included in the master plan. Therefore interest groups that have matters NOT included in the master plan can be ignored during the consultation.

The master plan is then put on public exhibit at places that will have been notified. What is important to note about the RTCP is that it places emphasis on seeking the approval of the public of a draft plan, and does not place sufficient emphasis on wide consultation before the draft plan is produced. This attitude exhibited in the RTCP is based on the premise that planning is a highly technical job, which the officials must be left to proceed to do without public interference. However, the ACT requires that the public appreciate the plan and before the Minister approves it and at best to make objections. What is required therefore is to demystify the planning process. Rather than invite the public to make objections, there should be room for the public to work hand in glove with the LPA such that by the time of public exhibit of the plan, there are not many objections. The argument that citizen participation prolongs the planning process flies in the face of the fact that landuse planning is such an important activity, determine as where ‘semi-‘permanent development should take place. The planning process should therefore be allowed to be as long as it takes to achieve consensus on the more important decisions regarding the location of activities.

Local Plans
Almost similar steps are followed in the preparation of local plans, hence the same observation s as in preparation and implementation of master plans apply.

An important serious omission of the RTCP Act is that it does not see the role of civil society or in its language the ‘public’, beyond preparation of the plans. There are no provisions through which the public can follow the implementation of the master or local plan, and evaluate jointly with the LPA the success or failure of one plan before the next one is prepared. The inherent assumption of the RTCP is that the LPA does not fail in implementing the plan, but instead physical plans become obsolete with time, as conditions under which they were prepared may have changed. The weakness of this system is that the LPA will proceed to prepare another plan, without accounting to anyone on what happened with the other plan.

Development Control
Part V of the RTCP deals with development control. The main point to raise about the RTCP is that it establishes the role of LPA in controlling development, but does not specifically define the role of LPA in promoting development. This is left to a separate Act, the Urban Councils Act, [and RDC ACT] which gives a range of powers to the LPA to engage in estate development etc. The effect of this is that planners have been criticised unfairly for development control and doing nothing about promoting development.

Another identifiable weakness in the RTCP is that it is silent on mobilised representation in favour of or against certain developments. The ACT takes a narrow view in dealing with the role of pressure groups or civic associations, as it does not recognise their existence nor give weight to mass protests or demonstrations. For example, associations have made representation against the opening of some night-clubs to no avail. This does not mean that some protests or petitions are representative of sectarian and at times selfish interests.

Need to Decentralise Powers of the Minister in the Residents
We have highlighted, but may be not sufficiently, that fact that the Minister responsible for the two Acts [Minister of Local Government, Public Works and National Housing], wields tremendous power. In the Act, this power is vested in the Minister in the interest of the public. There is an inherent assumption that the civil society is weak, hence requires that protection of the Minister. This could have been true in the past, but it requires review today given the literacy levels achieved in most urban settlements. The residents of a local authority can not dissolve their council, but the Minister. There is need for review, so that the powers vested in the Minister can be ploughed back to the residents and citizens. For example, the power to dissolve a council.

The above requires detailed study of the Urban Councils Act and the Regional Town and Country Planning Act, and recommendations have to be made on the institutional structures to which the powers of the Minister have to be devolved.

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