Devolution Bill must fully address all issues

Information, Publicity and Broadcasting Services minister Monica Mutsvangwa addressed a post-Cabinet media briefing on November 20, where she announced that Cabinet had approved principles of the Provincial Councils and Administration (Amendment) Bill.

By John Makamure

Local Government, Public Works and National Housing minister July Moyo then presented the principles, which detail the mechanisms for decentralisation and devolution.
The amendment seeks to align the current Provincial Councils and Administration Act [Chapter 29:11] with the provisions of the Constitution of Zimbabwe which provides for the devolution of power to provincial and metropolitan councils.
Under Section 264(1) of the Constitution, “whenever appropriate, governmental powers and responsibilities must be devolved to provincial and metropolitan councils and local authorities which are competent to carry out those responsibilities efficiently and effectively.”
Section 265(3) goes on to say an Act of Parliament must provide appropriate mechanisms and procedures to facilitate co-ordination between the three tiers of government: central government, provincial and metropolitan councils, and local authorities.
Treasury has since earmarked an estimated $310 million in fiscal transfers for support to Provincial and Metropolitan Councils in 2019.
Under the devolved State, each province will have its own economic development plan underpinned by resources found in that province.
The previous administration had demonstrated hostility to devolution. A newer line of thinking around devolution emerged during the 2019 pre-budget seminar held in Bulawayo in November.
The Local Government minister correctly queried the provisions of the Constitution providing for legislators to be members of provincial and metropolitan councils on the ground that this would hamper oversight by Parliament.
His sentiments were echoed in greater detail in President Emmerson Mnangagwa’s weekly column in the The Sunday Mail of December 2.
In the column, the President advanced the idea of removing legislators from provincial and metropolitan councils.
The rationale behind the amendment is the doctrine of separation of powers (legislators have an oversight function, while the councils are meant to have an executive function), and the need to streamline councils.
In 2016, Parliament enacted the Local Government Laws Amendment Act, 2016 seeking to align the Rural District Councils Act [Chapter 29:13] and the Urban Councils Act [Chapter 29:15] with section 278(2) and (3) of the Constitution (Tenure of seats of members of local authorities).
The Act gives the Local Government minister the power to convene an independent tribunal to adjudicate on the suspension and removal from office of mayors, chairpersons and councillors.
The law left unaligned a host of other pertinent provisions in the two Acts requiring alignment to the Constitution.
The law was also seen as a reactionary piece of legislation to the then Local Government, Public Works and National Housing minister’s court battles with the then MDC Gweru mayor Hamutendi Kombayi and then Harare mayor Bernard Manyenyeni, who were challenging their suspension by the minister.
Civil society’s call for comprehensive local government law reform that would also entail devolution fell on deaf ears.
Whilst the new Local Government minister got Cabinet approval on the principles of the Provincial Councils and Administration (Amendment) Bill, amending the composition of provincial and metropolitan councils would require a constitutional amendment.
This is because the composition of the councils is provided for by the Constitution, and a statute purporting to change such composition would be ultra vires the Constitution — which is the enabling law — and will thus be unconstitutional.
It is expected that the amendment in the works will make provision for codification of the role of Provincial Affairs ministers.
Presently, the Constitution makes no provision for the office of the Provincial Affairs ministers who replaced provincial governors under the previous Constitution.
There is debate on whether or not the provincial ministers will not undermine the role of provincial chairpersons and metropolitan chairpersons.
The Bill must therefore clearly demarcate the role and powers of provincial ministers and these chairpersons to avoid unnecessary conflict which can negatively affect service delivery.
It is important for the Bill that will be drafted from the principles that have been approved by Cabinet to finally provide for the appointment of district administrators, which is not specifically provided for in any legislation.
The Bill should also attend to a host of other pertinent provisions in the Rural and Urban Councils Acts requiring alignment to the Constitution.
Examples include the following:
a. Sections 6 and 7 of the Rural District Councils Act empower the President to establish and alter the boundaries of districts. However, Section 267(2) of the Constitution requires the Zimbabwe Electoral Commission (Zec) to be consulted.
b. Section 4 of the Urban Councils Act and sections 8 and 139 of the Rural District Councils Act empower the President to divide council areas into wards, to determine their boundaries and to alter ward boundaries. Under section 161 of the Constitution, this is the function of Zec.
c. The minister has power to appoint councillors [section 4A of the Urban Councils Act and sections 11 & 31 of the Rural District Councils Act]. Under section 265 of the Constitution, all councillors in urban and rural local authorities must be
elected.
d. Ensuring that section 276 of the Constitution which gives every local authority the right to govern its local affairs “on its own initiative” is given life.
What is important to bear in mind is that it is only the principles of the Bill that have been drafted. The actual piece of legislation is still to be drafted and introduced in Parliament.
So there is still a window of opportunity to influence its content.
The Local Government ministry did the correct thing last week to convene a stakeholder workshop to discuss enabling legislation for devolution.
Such consultation is the way to go in order to come up with the best law for such an important component of our Constitution.

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