Zim’s latest constitutional abomination

By The NewsDay | Jul. 2, 2016 | 14 Min read

MATTERS of constitutionalism, governance and administrative justice are issues close to my heart which is why I am very vocal in my criticism of laws or conduct that circumvent these aspects or undermine the role they play in society. Not so long ago, I wrote on the unlawfulness of the Local Government Minister’s suspension of the Harare Mayor. At that stage, the Local Government Bill meant to create the Tribunal that suspends councillors was not before Parliament. Shortly after the suspension, a creature was created rather speedily and poorly, if I may add, to fulfil this task. The creature is a reincarnation of the very same statute that was deemed inconsistent with the Constitution. That creature is the Local Government Laws Amendment Bill and it is the subject of this piece.

Guest Column Paul Kaseke

It is important to set out that all provisions in the Bill must be consistent with the Constitution. As per basic constitutional interpretation, the Constitution assumes a more important role than any other law and such laws must be in line with the Constitution. Where the Constitution sets out a right or confers a power, it is not possible for any other law to limit that right. Acts of Parliament may only flesh out details of a right or power conferred, but may never subtract or reduce the right or power in the Constitution. When an Act or Bill fails to do so then it fails to meet “constitutional muster” and cannot be passed. This is of course theoretic in the Zimbabwean context because many unconstitutional Acts have been passed by Parliament despite adverse reports on constitutionality. A good example of this is the Labour Amendment Act which received a unanimous adverse report from the parliamentary select committee tasked to do this. The Bill was nevertheless passed using the ruling party’s majority in Parliament.

The current Local Government Amendment Bill can only be described as a constitutional abomination and here is why: The Bill concerns itself primarily and solely with the appointment, suspension and removal of councillors The ambit of this amendment is notoriously and suspiciously narrow. I have previously argued that the current Urban Councils Act and the Rural District Councils Act cannot survive a constitutional challenge because the premise of those Acts was before devolution of power was envisaged expressly in our law. That means those two statutes were crafted on the basis and understanding that the Minister of Local Government played the role of supervisor of the local governing bodies. That was pre-2013. Post-2013 (when the Constitution was adopted), this role no longer exists and this renders large portions of those Acts inconsistent with the Constitution. Those two Acts cannot be amended, they have to be repealed because many of their provisions fell away when the Constitution was adopted.

When power is devolved, it is not possible for central government to continue to play the same role it played before but rather sadly, the Bill is silent on this aspect. In fact, the Bill pretends like the constitutional values and principles governing local government are non-existent. There is an entire chapter of the Constitution dealing with local government matters that needed to be addressed by the Bill, but instead the Ministry of Local Government chose to deal with two subsections — 278(2) and (3).

The Constitution requires legislative enactments to give effect to s 265(3) dealing with the cooperation between central government and local government, s 266(4) dealing with the neutrality of employees, s275(2) dealing with the governance of rural authorities and s 279 dealing with the same in respect of local government authorities. The failure of the Amendment Bill to do this only shows that the real intention was to effect suspensions which seem to be more of a priority than the actual functioning of the councils. In this respect, the Bill is shallow and “sinister” if one is to be frank. Our law recognises that laws cannot be crafted for ulterior motives and as such on this sole ground, the Bill ought to be reworked.

The Bill has no definitions

The lack of definitions renders the Bill vague and otherwise ambiguous, which is not desirable since it governs local authorities across the country. At this stage nobody knows what constitutes gross incompetence and misconduct for purposes of the Bill. The uncertainty as to the meaning of terms, more dangerously, creates a loophole for abuse and disputed meanings. This government has shown that such loopholes can and will be exploited to their advantage. There should be nothing left to chance in this regard.

The Bill gives the minister

far-reaching powers to determine charges and meanings of charges

Keep Reading

In the absence of definitions, the meanings of charges against councillors seem to vest in the minister himself. In most instances throughout the Bill, the minister can determine whether one of the trigger charges against a councillor exists. On this basis, the minister can suspend councillors and mayors based on his subjective determination. This is problematic especially with a minister bent on removing all perceived threats from office through means of suspensions. It is at odds with the Constitution, which only refers to the minister once in the entire chapter dealing with local government. This, as I have previously argued, is indicative that the drafters did not want to see the interference previously exhibited by ministers in the running of council affairs. This power is also at odds with the underlying principles of devolution and decentralisation of powers.

The Bill allows the continued existence of the Local Government Board

Because the Bill only touches on s 278(2) and 278(3), it fails to address the unconstitutionality of the Local Government Board which previously performed a supervisory and oversight role along with the minister. This Board is unconstitutional because it performs functions that local governing authorities are competent to determine on their own. Section 264 of the Constitution clearly articulates that the responsibility of running the affairs of councils rests with elected councils that are competent to make such appointments as may be necessary to govern. Where there was no decentralisation, indeed the Local Governing Board would have to approve certain appointments like that of the Town Clerk, but when the Constitution came into operation, that role fell away because the councils themselves are conferred with the autonomy to make decisions without the meddling of national or central government. The Local Government ministry incorrectly asserts that the Board still exists post-2013, but that of course is an absurdity considering that the Constitution says nothing of such a Board and certainly does not delegate any powers to it. The silence of the Bill on the Board is an acceptance of its continued existence which is untenable, as I have argued.

The Bill is minister-centric and people-poor

One of the main changes to the local government regime is that communities must be involved in the running of their municipalities and this forms part of the governing principles in Section 264 of the Constitution. Strangely, the minister has more say than the people do in terms of the Bill. In fact, the minister usurps and strips the communities of their power to determine what happens to the local governing authority. This reflects a large role being played by the Executive to the detriment of the electorate that appointed the councillors and mayor.

Ordinarily, the removal of elected members of government (which includes local government) should not be by another branch of power because this undermines the decision of the electorate. Though some instances of this take place, they are not desirable trends to have in any democracy particularly where decentralisation has taken place. It is the people instead who should have a say in the dismissal of their elected representatives but in this instance, it would seem the people are irrelevant in the entire process. The Amendment Bill refers to the minister on over 30 occasions and says nothing about public involvement. Ironically, the opposite is true of the Constitution because in the entire chapter dealing with local government, the minister is referred to once, but the involvement of the public is a constant theme.

The Bill fails to address the partisan nature of employees

An interesting provision was included in the Constitution that prohibits council employees from carrying out partisan agendas and pushing partisan interests while in office. To quote from Section 266(2) of the Constitution, “No employee of a provincial or metropolitan council or a local authority may, in the exercise of their functions — further the interests of any political party or cause”. This is important to note because history has shown us that legitimate councils were replaced with puppet figures who existed to further the minister’s political agendas.

Consequently, stands and houses were awarded to garner votes for elections etc. Considering that the elections are less than two years away, there is a legitimate fear that the same will happen in the absence of the political neutrality provisions required by the Constitution. The misplaced focus of government in pushing for amendments relating to suspensions while neglecting such pivotal areas only strengthens the argument that an ulterior motive lies behind this Amendment Bill.

Lack of Independence of governing bodies

When read in its entirety, the Bill seeks to further entrench the powers of the Local Government minister instead of decentralising them as per the Constitution’s dictates. One of the new features of the Constitution in this regard is to confer autonomy on the local governing authorities to make decisions without the meddling of the minister. This conferment is in terms of Section 278 of the Constitution. The entire Amendment Bill does the opposite and actually undermines the authority of the councils to make independent decisions. When determining exercise of power by bodies, a functional and control test is used. The test simply asks how much power is exerted by an individual. The individual who exercises the most control or influence according to the test, is the centre of power. The Constitution places the first concentration of power to the citizenry who elect the councillors. The councillors according to the Constitution, exercise the most power in respect of local governance matters on behalf of the electorate. The Amendment Bill reverses that completely and places the centre of power with the minister contrary to the Constitution. In this respect, the Amendment Bill is unconstitutional.

Restoration of ministerial powers that were abolished by the Constitution

The Constitution strips the Local Government minister of powers to remove councillors from office but those powers are inextricably linked to the power of suspension. It is a trite principle of law that whoever has the power to dismiss has the power to suspend as it forms part and parcel of the same regiment. Our law has always recognised and linked the powers of suspension to disciplinary processes that could end in dismissal, but never has the power to suspend been vested in a person without the power to dismiss. It’s a constitutional absurdity that the minister assumes the powers to suspend and yet has no power to dismiss or remove from office. That reasoning is intellectually and ideologically bankrupt. The whole basis of an independent tribunal being formed to deal with removal of councillors is to avoid a situation where the minister interferes with the running of council and yet the minister has appropriated to himself, powers that are not given to him under the Constitution. To give the minister powers outside the Constitution is to act unlawfully and in so doing, the Bill is attempting to enact an illegality.

The Bill furthers a “Big Brother” micro-management of council affairs

As per points 8 and 9, the interference by the minister amounts to an usurping of powers, but the Bill also attempts to micromanage the affairs of councils. In its silence on other unconstitutional elements that remain in the Urban Councils Act (UCA) and the Rural Districts Councils Act (RCDA), the Bill endorses and otherwise legitimises these unconstitutional acts. The Bill violates the Constitution in that it fails to:

Strip the minister of powers to appoint councillors ( found in Section 4A of the UCA) especially when seen against the Constitution, which expressly indicates that all councillors must be elected
Remove the power of the minister to issue policy directives on specific actions that councils must take
Remove the power of the minister to reject or approve by-laws
Remove the power of the minister to approve or reject the decision by a council to take long term and short term loans
Remove the power of the minister to impose or approve income generating projects or financing projects for councils
Remove the power of the minister to veto or reverse resolutions by councils The continued existence of these provisions means that councils are not free to conduct their own affairs which runs contrary to the principles of devolution and deeply roots a “Big Brother” role by the minister.
The Bill creates indefinite suspensions of councillors

Whereas the UCA provided for a 45-day suspension limit, The Bill allows the minister to suspend indefinitely because no time limit is prescribed for the power to suspend. This not only falls foul of the Constitution, but is also inconsistent with principles of natural justice. Generally speaking, indefinite suspensions are increasingly viewed as unlawful the world over. The Bill only goes as far as giving time limits by which investigations must be concluded. The obvious pitfall here is that we could see a use of indefinite suspensions being effected to get rid of perceived opponents of the ruling party. It would seem that the Local Government Amendment Bill is designed to legitimise the “Mudzuri-suspensions” — a term I use to describe indefinite suspensions that amount to a dismissal as was the case with the Former Harare Mayor , Engineer Elias Mudzuri. This current Bill leaves a situation where these kind of suspensions can be resurrected albeit lawfully.

The Bill does not allow appeals from the Tribunal

In law there is a distinction between reviews and appeals. When one wants to contest the correctness of the decision of a tribunal or court, an appeal is lodged but when one wants to dispute the process leading to the outcome was incorrect then a review application is made. In a review, it is the process that is under scrutiny and the conduct of the presiding officer often comes into question. So where there is bias, malice or inclusion of irrelevant of considerations by the court or tribunal, a review is the correct approach, but where the actual merits of decision are in question, then appeals are the appropriate vehicle. The Bill allows reviews from the Tribunal to proceed to the High Court, but not appeals. No appeals are possible from the Tribunal and this means that if one does not challenge the process or conduct of the Tribunal, the decision is binding and final. This obviously offends access to justice as enshrined in the Constitution

The Bill effectively leaves room for Presidential powers contrary to the Constitution

As I have mentioned before, the Bill is silent on a number of matters and in the absence of the removal of these unconstitutional clauses, they will continue to remain in force even if they are blatantly unconstitutional. Until such sections are brought before the courts to declare their unconstitutionality, they will continue to apply as law which is why the role of Parliament in ensuring compliance and constitutional soundness is crucial. Some of the constitutionally offensive clauses that remain are that the President still has the power to divide the council areas into wards and determine boundaries for purposes of elections. That function was removed from the President by Section 161 of the Constitution which designates that function to the Zimbabwe Electoral Commission. Clearly, this inconsistency should be rectified but the silence of the Bill on this leaves the power to the President even if such power would be ultra vires the Constitution. The Rural District Council Act through sections 6 and 7, allows the President to create districts. That power is inconsistent with Section 267 of the Constitution which requires an act of Parliament to do this in consultation with the Zimbabwe Electoral Commission.

The Bill creates “weirdly-unconstitutional legislative” powers for the minister

Generally, legislative functions to amend and create legal instruments vests in Parliament and the function of the Executive is to generally implement such instruments. The Bill confers on the minister the power to amend the Schedule dealing with the processes of the tribunal provided that the draft is brought before Parliament. It is of course very worrying when the Executive assumes the function of the Legislature regardless of how much involvement the latter has. This further cements the suspicion that the powers of the minister in terms of this Bill will be used to neutralise opposition local government bodies. It is undesirable to have that degree of power vested in one individual particularly when such conferment of power runs contrary to the Constitution.

The Bill violates the right to administrative justice

Section 68 of the Constitution creates a constitutional right to administrative justice, which guarantees every individual a right to administrative conduct that is prompt, reasonable and both substantially and procedurally fair. The procedures laid down for the suspensions of councillors easily offend this right and the Administrative Justice Act because of its lack of timelines for the end of suspensions. It also fails to guarantee procedural fairness for the individuals brought before the Tribunal.

The Bill confers powers of Investigation on the minister

The Bill grants the minister the power to conduct an investigation. This power is contrary to the principles of the relevant constitutional provision. In any event, the minister already has too many hats to wear in terms of the Bill which would make it quite irregular that he conducts this function along with the other functions. The irony is that the Tribunal is largely under his control but he is also in charge of the investigation, suspension and or “prosecution” thereof. The loophole for abuse is quite clear.

The Bill creates a tribunal that is not independent

Section 278(2) of the Constitution specifically directs Parliament to create an independent Tribunal to deal with the removal of mayors and councillors. By definition, independence denotes a state of being free from interference, regardless of where such interference may come from. Given the background of local government and central government conflict, it seems quite clear that the idea was to remove the function now performed by the tribunal, from the minister. Logically, the drafters of the Constitution could not have then envisaged the minister having power over the tribunal because of the likelihood of continued interference. That would defeat the idea of an independent tribunal. In simple terms, the minister is the bully that the Constitution seeks to bar from interfering with removal of mayors so it makes no sense that the same bully is now overseeing the selection of the people in charge of a process previously abused by his office. The idea that the minister has control over who sits on the tribunal is not desirable because of his involvement with other matters relating to the investigation and formulation of charges against the councillor or mayor. It is highly irregular for one to investigate, formulate charges and then have oversight over who may preside over the matter. To make matters worse, the same investigator/accuser has the power to amend the process relating to the tribunal’s operations. Again, the same problem of too many hats worn by one individual arises.

The Bill seems to create ad-hoc tribunals and not a consistent tribunal

The Bill is, as I have noted before, very poorly drafted and one of its failings is that in its opening lines it suggests that there is a separate tribunal convened for every disciplinary matter. If that interpretation was to be adopted and applied, it would clash with the Constitution, which seems to suggest otherwise. The Constitution seems to envisage the creation of a fixed term tribunal as opposed to the formulation of several ad hoc bodies that will be constituted for every new case. The contradiction while bordering on semantics, has a huge impact on the Bill and its constitutionality. If indeed the Constitution envisages the tribunal in the way I have suggested, then the Bill cannot create a different type of tribunal.

This discussion shows why the government wants to rush this Bill through Parliament but on all accounts, it is an unconstitutional amendment that should never see the light of day and even if it does, it should immediately be challenged in the Constitutional Court to prevent this constitutional abomination from being implemented.

Paul Kaseke is a legal advisor, commentator, analyst and sessional law lecturer with the Wits Law School. He writes in his personal capacity. You can give him feedback via email: [email protected] or follow him on twitter @paulkasekesnr