Devolution and the new Constitutional Dispensation in Zimbabwe
Autor: Jephias Mapuva and Loveness Muyengwa-Mapuva
Originally Published at Peace and Conflict Monitor on: 03/05/2014
Zimbabwe adopted a new people-driven constitution in March 2013. Before that, the country had been administered through the Lancaster House Constitution of 1979, a surrender document that ended the protracted liberation war that occupied most of the country’s years of the 1970s. The new Constitution sought to address the anomalies that had been observed during the tenure of the Lancaster House Constitution. Notably the new constitution sought to democratise the political landscape through delegation and devolution. The previous constitutional order had politicised much of public spaces, including local governance that was characterised by the overarching powers of the Minister responsible for Local Government.
Politicisation of Local Governance in Africa
One of the most prevalent features of local governance and local government institutions is the high level of politicization, which has tended to compromise democratic practice. Be it in federal states (which are very few on the African continent) and unitary states (which constitute the bulk of the continent’s member states), local governance is inundated with political interference, to the extent that citizens are either not consulted adequately or central government simply hands down laws and regulations without consulting the general populace. What has resulted from this scenario is a high level of dissatisfaction among people as the quality of service delivery has continued to plummet, increasing outbreaks of disease and the mushrooming of informal settlements in most urban areas. All these challenges are the result of a lack of adequate consultation with the residents who are the best judges of their needs. The World Bank (2007) has concurred that national governments in most African states do not seek to promote democracy within the sphere of local government by allowing the participation of its citizens. Instead, national governments only go as far as consulting citizens when already armed with legislations and regulations already crafted in government offices by technocrats. ‘Consultation’ in this case is a formality and does not reflect the commitment of most African central governments to democratise local governance. The prevalence of the practice of the politicization of local government and local governance has not only deprived communities of their democratic right to contribute to policies that affect their development, but has been manipulated by the ruling elites to gain political mileage by crafting and handing down policies and regulatory frameworks that seek to promote the political agendas of politicians. One case in this regard is the crafting of a local government legislative framework that empowers the Minister responsible for local government in Zimbabwe to appoint additional councillors in addition to those elected by the electorate. It does not require much familiarity with issues of governance to see that such a system of local government enables the Minister to appoint friends and relatives and promote other corrupt practices. The overall impact of such a piece of legislation is a loss of confidence in central government by communities, the creation of a rift between local communities and central government as well as the perpetuation of corrupt practices initiated at central government level. In the end, communities feel insecure and find solace in the formation of community-based organisations (CBOs) such as residents’ associations. Residents’ associations are formed by residents to engage with local authorities and central government regarding the undesirability of some of its policies and practices.
Local Governance in Zimbabwe: A General Overview
Local governance in Zimbabwe dates back to the 1890s when the colonial administration of the day, the British South African Company (BSAC), established the first formal local authority, the Salisbury Sanitary Board, to administer local affairs.1 Local government was not provided for in the Constitution but became a creature of statute which meant that the local government system did not have constitutional protection. Subsequent local government instruments and institutions such as municipal ordinances, as well as advisory boards and councils, were established and all fell under the direct control of the District Commissioner who sought to reinforce colonial policy in African townships. The centrally defined local governance institutions and structures were instituted to deny Africans self-government. In response to this repressive dispensation, residents, mostly from urban areas, resisted the entrenched racial legal and institutional frameworks. The centralised local government system imposed substandard and centrally defined programmes on African and Native Councils and “laid the foundation for a highly centralised post-colonial local governance system that was inherited at independence in 1980.”2
The post-colonial reforms to the local government system culminated in the amalgamation of African Councils into District and Urban Councils governed by a new set of legislation, namely the Rural District Councils Act 3 and the Urban Councils ActIn District Councils, a consolidated set of legislative frameworks has been used to govern the conduct of district council operations, ranging from appointments, the election of council officials as well as revenue collection and service delivery. In addition, this legislation governs how the infrastructure should be developed. The same goes for urban areas where the Urban Councils Act operates along the same lines, providing direction on the way that local councils should be managed as well as how revenue should be collected to enable local councils to function properly. However, it should be noted that the new post-colonial dispensation did not seek to loosen central government’s stranglehold on local authorities but, rather, perpetuated its dominance over local councils by empowering the Minister of Local Government, Rural and Urban Development (MLGRUD) to provide strict monitoring mechanisms for local councils, both in rural and urban areas. Consequently, the post-colonial political establishment is often blamed for failing to redress the centralisation of powers by central government and to democratise local government.5 What appears to have been misconstrued by many people in Zimbabwe is the fact that the governing legal and institutional framework of local governance in the country provides an opportunity for the responsible Minister to legally enable or disable local authority administration.6 The intervention in the operation of local councils by the MLGRUD has been viewed as the ‘Achilles Heel’ of local authorities and presents a major weakness in the administration of local government affairs in the country.7 One of the pieces of legislation that has promoted legal intervention by the MLGRUD is section 60 of the District Councils and section 4A of the Urban Councils Act in which the Minister monitors or appoints special interest councillors in all urban councils in the country. However, it is the implementation of the law and practice of appointing special interest councillors in urban local councils that has attracted controversy and public outcry. Public outcry and negative media reports on the implementation of section 4A has resulted in a loss of faith with the way that the MLGRUD has been implementing this legislation.
Devolution of Governmental Powers and Responsibilities
Under devolution, the COPAC Constitution exhibits the desire to reform local government by empowering local councils with a view to enhancing their autonomy. The provisions on devolution in the COPAC Constitution present a first attempt in Zimbabwe to provide constitutionally protected powers for local government and institutional and legislative frameworks. The local government provisions of the new constitution on local governance are unique in the history of the country because over the years, local government has been a creature of statute with no constitutionally protected powers. In addition, the comprehensive provision of local government in the COPAC Constitution provides for structures and institutions that should comprise the new local government system in the country. Most importantly, the COPAC Constitution provides for the devolution of powers from central government to local communities. In this regard the COPAC Constitution provides that: “governmental powers and responsibilities must be devolved to provinces and metropolitan councils and local authorities which are competent to carry out those responsibilities efficiently and effectively.”8
In addition, the COPAC Constitution recognises the right of communities to manage their own affairs for developmental purposes. In this regard, the Constitution makes it mandatory “to recognise the right of communities to manage their own affairs and to further their development.”9
The COPAC Constitution is different to all constitutional and legislative local government provisions in the history of the country because it recognises the right of communities to contribute to local democracy primarily through the election of local council officials. The Constitution presents local governance as seeking “to enhance citizen participation in local governance.”10 This is stated in the provision: “to give powers of local government to the people and enhance their participation in the exercise of State powers in making decisions that affect their lives.”11
No other legislative or constitutional framework in the constitutional history of Zimbabwe ever provided for the ceding of State powers to communities and the incorporating of communities into decision-making processes through their electing the local leadership. Consequently, the COPAC Constitution recognises the importance of devolution by empowering local councils and local communities through the “transfer [of] responsibilities and resources from national government in order to establish a sound financial base for each provincial and metropolitan and local authority.”12
Urban Local Authorities
The COPAC Constitution also makes specific reference to urban local governance. It provides that the primary purpose of urban local councils is “to represent and manage the affairs of people in urban areas.”13 In addition, the provision recognises the importance of elected councillors in the management of urban council affairs by stating that “urban local authorities are managed by councils composed of councillors elected by registered voters in the areas concerned.”14
The new Constitution does not make any reference to the appointment of councillors by local communities or councils. This provision reaffirms the need for community participation in the election of local leadership.
Functions of Local Authorities
This is one of the most important provisions of the COPAC Constitution with regard to the establishment of autonomous local councils. The Constitution provides for the creation of autonomous local councils. The draft recognises that: “a local authority has the right to govern on its own initiative, the local affairs of the people within the area for which it has been established, and shall have all the powers necessary for it to do so”15
This provision is confirmation that the COPAC Constitution recognises the importance of the autonomy of local authorities. In addition, this provision recognises and acknowledges the importance of investing power in local authorities to represent their interests. Moreover, the Constitution reaffirms and recognises that a locally elected leadership understands community needs better than those individuals appointed to local councils, a trend that had become common in the old local government system which was governed by a plethora of statutory instruments which empower the Minister responsible for local government to make arbitrary decisions on the operations of local councils. This is the major difference with the new constitutional provision on local government. The new Constitution has therefore sought to curtail the practice of appointing individuals, thereby allowing any individual intending to be in local councils to go through the electoral process.
Elections and Local Authorities
The COPAC Constitution further recognises the importance of locally elected councillors in local councils and stipulates when (and how) as well as under what circumstances these should be elected into office.16 The Constitution reaffirms the view that councils should be established for every locality and that the respective communities should be responsible for the election of local council officials to administer the affairs of the communities.17 The Constitution also recognises the fact that mayors should be appointed by those councillors elected to represent different wards in council 18, a provision which seems to have been retained from the previous legislation. Before the amendment of the legislation on the election of mayors, the situation was that these were called Executive Mayors and were elected by the local communities.
The COPAC Constitution exhibits elements of democratic governance, providing for the election of local councillors as well as mayors and other public office bearers. However, for technocrats and other officials where expertise is required, these are appointed on merit through the interview process. The new Constitution also recognizes the role of communities in determining the choice of local leadership, by recognising the significance of elections and elected leadership. Most importantly devolution is provided for and is an acknowledgement that the transfer of powers and functions from the centre should help to facilitate the participation of communities in decision-making processes with limited central government intervention.
Normative Values Emerging and New Constitution
Several critical values of representative democratic governance have emerged from the exploration of international instruments and the new Constitution (herein the COPAC Constitution). The common elements of representative governance identified are: decentralisation/devolution (where power is transferred to the sub-national level to make autonomous decisions); local democracy (where local people contribute to decision-making processes within their areas); inclusiveness (where every social group is involved in making decisions that affect their lives); accountability where local government and its officials (both elected and appointed) should be accountable to the community it serves; transparency (where all decisions are clear and apparent); representative leadership (where political leadership should represent the needs of the citizens); and citizen participation (residents should play an active role in decision-making processes).
The different international, regional and national instruments that were reviewed by the author identified devolution as being at the epicentre of the implementation of critical features of representative democratic governance. In addition, different instruments have highlighted the importance of cultivating and inculcating a culture of local democracy through the election of representatives, community participation, transparency and accountability. The COPAC Constitution calls for the recognition of special interests and equity in democratic governance. Despite the call for the devolution of functions to local authorities, cooperation between different levels of government should exist. Under devolution, the author discusses the fact that powers and functions should be transferred to local communities to make decisions that impact on their livelihoods. In local democracy, local communities should take part in the election of a local leadership that should represent their community’s interests. The election of local leadership should be transparent. In addition, the elected leadership should be accountable to the local communities whose interests they represent. In the election of a local leadership, cognisance should be taken of the need to represent special interests. The composition of the elected leadership should also be inclusive of marginalized groups such as minorities and women. Effectiveness and efficiency are components of democratic governance which help in achieving developmental objectives. In local governance effectiveness and efficiency seek to ensure that objectives benefit communities through the economic use of resources. In the different instruments that were reviewed, it was noted that cooperation between the different spheres of government help in the effective implementation of policies. It is on the basis of these values that the practice and implementation of section 4A will be tested to establish the extent to which it complies with international benchmarks as provided by different instruments and the COPAC Constitution. The next chapter unpacks the provisions of section 4A of the Urban Councils Act to establish the extent to which the practice and implementation of legislation complies with representative democratic governance.
Despite the fact that the new Constitution has not seen the test of time, given that authorities have so far failed to reconcile the existing legislation to the provisions of the new Constitutions, there seems to be a lack of political will to implement the new Constitution in letter and spirit.
Bio: Dr Jephias Mapuva is a Senior Lecturer in Development Studies at Bindura University of Science Education (Zimbabwe). Loveness Muyengwa-Mapuva is a Law lecturer at Midlands State University-