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

Summary of Findings of the Audit

Following the audits of relevant pieces of legislation in the above section, the following observations are made.

Representative Democracy
The system of representative democracy is entrenched in our legal system. Residents in any urban local authority have a right to elect representatives into a council. The elected agents, (the councillors) will then administer the affairs of the city on behalf of the residents. Residents are therefore conferred with the right to vote at elections that are held at a four-year interval. Further, there are provisions in the Urban Councils Act that allow residents to directly participate in the decision making process of a council. This process gives the residents the right to object to certain decisions made by the council.

These mechanisms are however not fool proof. On a closer look, there are certain weaknesses in the systems that inhibit effective public participation. Below are some of the weaknesses that were identified: -

Powers of Recall
It was observed that although on paper, the residents have a right to elect agents of their choice into office, they do not have the corresponding right to recall them (vote of no confidence) should they wish to do so. As such they are often stuck until the next election with representatives who no longer represent their interests and aspirations, or worse still who abuse their offices and betray the electorate.

It was observed that the only person who, in terms of the law, could reach out to an erstwhile council is the Minister of Local Government, exercising his powers in terms of section 114 of the Act. The exercise of these powers by the Minister, it was observed, is entirely discretionary. Further, it is restricted to a situation where the Minister has reason to believe that a particular council is guilty of some misdemeanour/misconduct.

The residents therefore advocated a system under which they would be given the power to vote out of office a council that abandons their mandate or that is involved in any corrupt practices. It was felt that this should not be left to the Minister, because the residents are closer to their councillors than the Minister and are therefore in a better place to monitor their performance and conduct.

Transparency and Accountability
The residents further advocated an Anti Corruption Commission to monitor the operations of local authorities.

Ministerial Commissions
It was further observed that, even though residents have the right to regularly elect their representatives, the Minister of Justice could subvert this right using power conferred upon him in terms of section 103K of the Local Authorities Electoral Laws Amendment Act that allows him to postpone elections. The Minister of Local Government could also subvert this right in terms of section 80 of the Act. This provision empowers him to appoint a commission to run the affairs of a local authority for a period of up to six months where there is no council in place. This applies where he would have suspended or dismissed a council using his powers as discussed earlier.

This observation was made against a background where the Minister had used his powers in terms of that section to appoint a commission to run the affairs of the City of Harare, which Commission was then kept in office way beyond its statutory tenure.

Whilst it was conceded that there may arise situations when it may be prudent for the Minister to exercise his powers in terms of the said provision, his continued re-appointments of the City of Harare Commission amounted to a denial of the residents' right to an elected council. It was therefore resolved that the legislation should make it clear that the term of office of a commission can not be extended after the initial period of six months. The commission must be there solely to facilitate the elections, and a quota system must be put in place to ensure that marginalized groups are represented.

Objections and Referenda
On the right conferred on residents to object to certain decision by a council, particularly the issue of raising of rates and other charges, a process that affects the residents most, a number of shortcomings were observed.

To start with, most residents were not aware that they have a right to make representations and objections to the raising of rates and other related charges. This was attributed to lack of civic education strategies on the part of local authorities. It was observed that this was due to the fact that there is no obligation on the part of local authorities to do so. It was proposed that local authorities should be obliged to put in place civic education programmes.

Further, it was observed that in certain instances, even though the residents were given the right to raise objections, the objections they raise are not adjudicated over by a partial body. They are instead adjudicated over by the same council against whom they are raised. It was resolved that an independent arbiter should deal with the objections.

Further proposals were made based on parallels drawn from other legal systems. Drawing examples from jurisdictions in the Western world, for instance Germany and Switzerland, it was proposed that we should introduce a referendum system where certain important civic issues and decisions are referred to a referendum for public approval.

Representation
Further, following the realization that almost all the councils were dominated by certain quarters, for example men, it was proposed that there be affirmative action in favour of disadvantaged groups. Inspiration was drawn from countries like Uganda where there is affirmative action in favour of women, the youth and the disabled, in local authorities.

Civic Participation
We observe that for there to be an effective monitoring system of local authorities, Residents Associations should be recognized in terms of the relevant laws.

Further, we argue that in keeping with the purpose and spirit of decentralization, the affairs of local authorities should be decentralized.

Decentralisation
Closely related to the issue of decentralization was also the long-standing issue of a one-city concept. It was once again reiterated that there was need to abolish the two tire system for the levying of rates that draws a distinction between the high density and the low suburbs.

The above observations having been made, this paper shall in the next chapter suggest some key policy proposals to give effect to some of the proposals that were made. It will be underlined that some of the proposals that require further research could be subject of a separate inquiry, and may therefore be achieved in the long term. These include the decentralisation process and the recognition of residents associations. We shall focus in this discussion on what are conceived as short-term policy proposals, that is, those that it is believed can easily be realized.

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