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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 proposed policy changes and amendments

In this chapter, we present the specific policy proposals and the necessary amendments to the urban councils act aimed at enhancing civic participation in municipal governance. Attempts have been made to carefully analyse the changes proposed in terms of institutional capacity to see their execution and implementation, the resultant outcomes and impacts, financial implications on the national and local authority fiscus and other factors. The proposed changes are numbered for easy reference.

Proposal that the Residents be conferred with the Power of Recall
Whilst the power of recall is commonplace in most democracies, it is not legally entrenched in our Zimbabwean legal system. The right by an electorate to vote out of office elected agents is not legally entrenched even in the Constitution of the country.

Before that right is recognized in municipal laws as was suggested, it is proposed that this has to start with the national Constitution itself. It is therefore suggested that this issue be taken up as a constitutional issue, which unfortunately appears to be a long-term issue.

In the immediate term, it is however suggested that one could still utilize the existing provisions to achieve the same result, that is, to enable residents to hold accountable their elected representatives.

It is therefore proposed that the powers conferred upon the Minister to act as the upper guardian of the rights and interests of the residents be shared with the residents.

In terms of section 311, of the Act, the Minister has the power to appoint an investigator to investigate any affairs of a local authority and to act on the findings of any such investigation. In terms of section 114, as discussed earlier, s/he may in his/her discretion suspend (or ultimately dismiss) a council.

It is proposed that further to the ministerial discretion in invoking this provision, this section may be amended to provide for a public petition system. The amendments would make it compulsory for the Minister to act once a petition by a particular percentage of the electorate is presented to him.

For administrative expediency, the mobilization of the necessary numbers for the purposes of the petition would be left to the residents concerned. The threshold requirement, it will be observed, guarantees against abuse of the system. This amendment it is argued, can easily be implemented, as it does not entail institutional changes but is merely a matter of legal reform.

Establishment of an Anti Corruption Commission
This proposal, it is suggested, must be looked at in light of amendment number 16 to the Constitution of Zimbabwe. This amendment established the Anti Corruption Commission to deal with issues of corruption both in the private and public sector.

It is submitted that this Commission is sufficient to deal with issues of corruption in local authorities. These shall include among many, the gender procedures and use of council property. What is required is for residents to lobby for the appointment of the commission that, notwithstanding the amendment, is not yet functional.

The issue here is therefore one of implementation rather than policy.

Term of office of a Commission
The Harare Commission saga, with respect, was either an issue of misinterpretation of the law or abuse of statutory powers.

The issue of the duration of the term of office of a commission has since been clarified in the case of Samudzimu and Others vs. The Minister of Local Government and Others.

However, for clarity if not brevity's sake it is proposed that section 80 of the Act be amended so that it is read together with Part XIXA of the Local Authorities Election Laws Amendment Act 21/97 on the conduct of local authority elections. It should be made clear that during the tenure of office of a commission, there should put in place mechanisms for the holding of elections. We need to emphasise that a commission is a stoppage measure and therefore its tenure should be strictly limited for purposes of facilitating the elections of a council.

Establishment of an Independent Arbiter
This proposal is very easy to achieve as the institution is already provided for in terms of section 312 of the Act. Section 312 provides for the appointment of an independent board to deal with objections where any provision of the Act enjoins the Minister to do so.

If any provision of the Act requires that any objections raised should be referred to arbitration, then the Minister is enjoined to appoint the board constituted in terms of section 312.

It is therefore suggested that all provisions conferring on the residents the right to raise objections, unless if they refer to other independent arbitrating bodies such as the courts, then such provisions should be amended to the effect that, any objections raised shall be referred for independent arbitration in terms of the Act. That way all such objections would fall for determination by the board appointed in terms of section 312.

It is proposed that these amendments be effected particularly to sections 219(7) (b) and 228 (7) (b) of the Act.

Civic Education
This appears to be more an issue for civic organizations to take up than for local authorities. Moreover, even if it were argued to be the responsibility of local authorities, this issue may be dealt with administratively.

Proposal for a Referendum System and Recognition of Residents Associations
If the proposals that have been made above were implemented, they would firmly entrench the participation of the residents in the management of their affairs to such an extent that it may not be necessary to pursue this proposal. Although this proposal is not necessarily inconsistent with the others proposed above, if the ones proposed above were adopted, this may render the proposal superfluous. It would amount, in the writer's view, to chewing more than we can swallow.

If however, the proposal were to be adopted, then it would be in the long term. The proposal envisages not just legal reform but also institutional changes with far reaching logistical and financial implications.

The same predicament bedevils the proposals on the recognition of Residents Associations.

If these were to be adopted, there would be need to amendment the Act, by the introduction of enabling provisions, establishing (creating) the institutions. The amendments would have to go further to deal with such complex issues as how the systems would be synchronized with existing ones. Regulations must be put in place to deal with the modalities of the operations of the systems. For instance on the question of the recognition of Residents Associations, there would be need to define their function, composition, election system, the extent of their powers, their relationship with council, how they will be financed etc.

All these issues need to be investigated further and are in themselves subject of a separate inquiry. The starting point however is that these proposals be embraced.

Decentralization
Decentralization of services can be achieved administratively once the residents put in place an efficient, effective and accountable council. All that is required is that the council equips its district offices with the necessary equipment for them to be able to respond to the urgent needs of their localities. This can therefore be achieved, if the residents insist on an efficient, affective and transparent local authority.

Affirmative Action
This may be a medium term proposal as it entails an unprecedented re-orientation of our system of local government. It will be pointed out that we do not have the concept of affirmative action at parliamentary level and as such its introduction at local government level would be some what, novel. Given this fact, it is difficult to say whether there will be the necessary political will to do so. Charity always begins at home.

At national level this again would entail amendment of the Constitution. At local government it would entail introducing new clauses in the Act, providing for among other things, affirmative action for defined disadvantaged groups e.g. the disabled, youths and women, how they obtain office and what percentages of the seats are reserved for each particular group. This is mainly an issue of legal reform and depending on the political will, can be easier to implement, although further homework would need to be done on it.

There should therefore be introduced a quota system over and above the normal council seats.

Conclusion
As indicated earlier, the proposals herein emphasized are those that can easily be implemented. These are mainly those that require amendments to the law, for them to be effective. Their implementation therefore only requires the political will of those in authority. On the part of the residents, the challenge is for them to prevail upon those on whom the power to realize the amendments lie, so that they identify with the cause.

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