LOCAL GOVERNMENT LAW

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General introduction

 

Local government is administration locally by elected bodies whose functions are conferred upon them by central government. Local government thus is a form of de-centralised administration. Local government institutions play a key role in urban and rural development. The Ministry that is in charge of local government is the Ministry of Local Government and Rural and Urban Development.

 

According to Dele Olowu “Decentralisation and Local Government in the Zimbabwean Constitution” (2009) “Local government refers to the establishment of participatory and democratically elected structures that can identify with the needs of the people at grassroots level and ensure the translation of those needs into the actual programmes and projects and maintenance of essential services.” This author also states that decentralisation of government powers allows "self-governance at local level by transferring powers to local authorities to govern, subject to safeguards against misappropriation of finances and abuse of power and spelling out of interrelationship with central government."

 

Decentralisation should be distinguished from the concepts of deconcentration and delegation.

Deconcentration is the distribution of powers and responsibilities among different units or levels within central government. The distribution of powers and responsibilities occurs within the hierarchy of central government.

 

Delegation refers to the transfer of responsibility for specifically defined functions to structures outside local government. These structures are allowed wide discretion but subject to indirect control by central government. Central government can withdraw a delegated power but it cannot exercise the same power when this power is being exercised by the delegate,

 

Devolution policy under the new Constitution

 

Section 264 of the new Constitution sets out the broad policies relating to the devolution of government powers and responsibilities.

 

264 Devolution of governmental powers and responsibilities

(1) 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.

(2) The objectives of the devolution of governmental powers and responsibilities to provincial and metropolitan councils and local authorities are—

(a) to give powers of local governance to the people and enhance their participation in the exercise of the powers of the State and in making decisions affecting them;

(b) to promote democratic, effective, transparent, accountable and coherent government in Zimbabwe as a whole;

(c) to preserve and foster the peace, national unity and indivisibility of Zimbabwe.

 

General principles of provincial and local governance

 

Section 265 of the new Constitution provides some general principles of provincial and local governance.

 

265 General principles of provincial and local government

(1) Provincial and metropolitan councils and local authorities must, withintheir spheres—

(a) ensure good governance by being effective, transparent, accountable andinstitutionally coherent;

(b) assume only those functions conferred on them by this Constitution oran Act of Parliament;

(c) exercise their functions in a manner that does not encroach on thegeographical, functional or institutional integrity of another tier ofgovernment;

(d) co-operate with one another, in particular by—

(i) informing one another of, and consulting one another on, mattersof common interest;

(ii) harmonising and co-ordinating their activities;

(e) preserve the peace, national unity and indivisibility of Zimbabwe;

(f) secure the public welfare; and

(g) ensure the fair and equitable representation of people within their areasof jurisdiction.

(2)All members of local authorities must be elected by registered voters withinthe areas for which the local authorities are established.

(3)An Act of Parliament must provide appropriate mechanisms and proceduresto facilitate co-ordination between central government, provincial and metropolitancouncils and local authorities.

 

 

 

 

 

CENTRAL GOVERNMENT

PROVINCIAL COUNCILS

LOCAL AUTHORITIES

 

 

Central Government

Provincial Councils (Metropolitan and Non-Metropolitan)

Local Government

Administration by elected bodies whose functions are conferred on them by central government.

Urban Councils

Rural  Councils

Communal lands

Traditional leadership by chiefs

Ward Development Committee

Village Development Committees

 

 

Provincial governance

The new Constitution provides for a new system of Provincial Governancethrough Provincial Councils. Harare and Bulawayo will have Metropolitan Provincial Councils (section 268). The other eight provinces will have Provincial Councils (section 267).

 

Composition of Provincial Councils

 

Metropolitan Provincial Council

(Non-metropolitan) Provincial Council

Chairperson Mayor of Harare or Bulawayo

Chairperson elected by Provincial Council from 2 persons submitted by party with highest number of National Assembly seats in province or highest number of votes

The mayors and deputy mayors and the chairpersons and deputy chairpersons of all local authorities in province.

Senators elected in province

The Senators elected from province

The two senator chiefs elected in province

 

The president and deputy president of the National Council of Chiefs, where their areas fall within the province

Constituency Members of N/A in province

Constituency Members of National Assembly in province

Women Members of National Assembly elected from province

Women Members of National Assembly elected from province

 

The mayors and chairpersons of all urban and rural local authorities in province

 

Ten persons elected by a party-listsystem.

 

Functions of Provincial Councils

 

Section 270 of the Constitution sets out the functions of these Councils. They are responsible for social and economic development of their provinces. This responsibility includes:

  • planning and implementing social and economic development activities in its province;
  • co-ordinating and implementing governmental programmes in its province;
  • planning and implementing measures for the conservation, improvement and management of natural resources in its province;
  • promoting tourism in its province, and developing facilities for that purpose;
  • monitoring and evaluating the use of resources in its province; and
  • exercising any other functions, including legislative functions, that may be conferred or imposed on it by or under an Act of Parliament.

Section 270(2) of the Constitution provides that an“Act of Parliament must provide for the establishment, structure and staff of provincial and metropolitan councils, and the manner in which they exercise their functions.”

 

Section 270(3) deals with accountability of the members of these councils. It provides that the members are “accountable, collectively and individually, to residents of their province and the national government for the exercise of their functions.”

 

Implementation of new system of provincial governance

 

The new system of devolution to provinces can only come into operation after the legislature passes the necessary legislation setting out in detail how the new system is to work. There must be active citizen participation when designing the form and content of the new system of devolution.

 

Arguments in favour and against devolution

Rural local governance

 

Introduction

 

Up to 1988, there was a separate system of local government on the one hand, for communal lands and purchase areas and, on the other, for the commercial farming areas. This reflected the racially differentiated system established by the old regime. For the communal and purchase lands there were district councils established in terms of the District Councils Act [Chapter 231 of 1974], whereas the local government bodies for commercial farming areas were known as rural councils (set up under the Rural Councils Act [Chapter 211 of 1974]). These rural councils had as their primary activity the development and maintenance of district roads, although it was intended that their main function would be the conservation of natural resources within their areas.

 

In 1988, the Rural Districts Council Act [Chapter 29:13] was passed. This Act repealed the Rural Councils Act and the Districts Councils Act. Its main purpose was to replace the dual system of local government in rural areas with a single unified system of local government that would apply in all rural areas. By-laws and regulations made by the former rural and district councils remain in force until the successor rural district councils repeal them.

 

Establishment of councils

 

Whenever he or she considers it desirable, the President may, by proclamation in the Gazette establish a rural district council for any district, give it a name and divide the council area into wards [s 8].

 

Composition

 

A council consists of one elected councillor for each ward of the council area plus persons appointed by the Minister to represent special interests but these appointed members must not exceed one-quarter of the number of elected councillors [s 11].

 

Elections for councillors are now held at the same time as elections for parliamentarians. Section 58(1) of the Constitution provides that a general election and elections for members of the governing bodies of local authorities must be held within four months of a proclamation dissolving Parliament.

 

In 1980 government made the District Administrator the Chief Executive Officer of the District Council. Previously the District Commission was the President of Rural Councils. The District Administrator effectively became chief advisor to council, chief implementer, government regulator and monitor.

 

The councillors are directly elected and the council is chaired by a chairperson elected by the council. All rural councillors are part-time. Councils must establish five mandatory committees: finance, roads, rural district development, natural resource conservation, and ward development and village development committees.  The council may create other committees as the need arises.

 

Body corporate

 

Every council is a body corporate with perpetual succession and, in its own name, it can sue and be sued and may carry out any of the functions assigned to it [s 12].

 

Powers

 

These powers include the following: Farming, roads, bridges, dams, water, hospitals, clinics, health services, sewerage, pollution, education, libraries, halls and grants to charity.

 

A council has the power to undertake or carry out any or all of the matters and things set out in the First Schedule, subject to the Act and any law to the contrary. Additionally or as an extension of these powers the Minister may authorise a council to do or carry on any act or thing which, in his opinion, is incidental to the exercise of the council’s powers or necessary or desirable in the interests of all or some of the inhabitants of the council area [s 71].

 

Classification of land in council area

 

For the purposes of this Act, the Minister may declare that any land in Council area is -

 

  • large-scale commercial land; or
  • resettlement land; or
  • small-scale commercial land; or
  • urban land.

 

See section s 3.

 

Council committees

 

The council must establish a finance committee, a town board (where any land in the council area is classified as a town area), a road committee, a ward development committee, a rural district development committee and a natural resources conservation committee if the council has an intensive conservation area. It may also appoint an area committee, to exercise any function of the council within any area of urban land within the council area and such other committees as it considers desirable [ss 55-62].

 

The town board consists of the councillors elected for the town wards in a town area and the council must delegate to that board its powers which are solely concerned with the town area for which the town board is appointed, except that the council will retain the power to impose levies, rates, special rates, rents or charges, to borrow money, to expropriate property or to make by-laws and it will also retain certain other specified powers.

 

The functions of ward development committees are to draw up development plans for their wards. Rural district development committees are there to assist in the development of the council area by doing such things as considering ward development plans and making recommendations to the council about matters to be included in the annual development plan and other plans.

 

Financing

 

The operations of a council are financed in various ways. These include–

  • grants from central government for the general administration costs, including paying for recurrent expenditure like salaries and wages;
  • loans received under the Public Sector Investment Programme for infrastructure development;
  • levies, rates, and rents paid to council for services rendered by government such as refuse collection, sewerage and water;
  • charges, rates and levies on various types of property within its area (Part XII).
  • taxes on land owners, mining locations, licensed dealers and permit holders.
  • charges for the issuing of licences and permits,
  • charges rental for property let out by it;
  • interest earned on moneys invested by council in any investment instrument as providedfor in the Act.

 

With the written approval of the Minister and subject to such terms and conditions as he or she may impose, a council may engage in any commercial, industrial, agricultural or other activity for the purpose of raising revenue for the council [s 80].

 

Rural District Councils have far more limited powers than Urban Councils as regards revenue raising and borrowing. A Rural District Council can borrow only from central government unlike municipalities and cities that can borrow from many other sources, including the money market.

 

After the council has approved council estimates, the council is obliged to ensure that copies of such estimates are forthwith made available for inspection by the public free of charge at the council offices. [s 121 (5) a i)]

 

Co-operation agreements

 

Rural District Councils can enter into co-operation agreements with the state, another local authority or any other entity or person “for the better or more economic carrying out …of any matter which the council may by law perform and in which the contracting parties are mutually interested”. The Minister may also enter into such agreements with other parties on behalf of the council. [s 82]

 

By-laws

 

A council has the power to make by-laws [s 88]. After passing a resolution for the making of any by-laws, a council must place for inspection for fourteen days a copy of the proposed by-laws at the offices of the council or at any other place where notices of the council are usually displayed or published. It must also publish a notice in a newspaper and cause it to be posted at some prominent place in the council area. The notice must:

 

  • describe the general effect of the proposed by-laws and the area to which they will apply;
  • state that a copy of the proposed by-laws is open for inspection; and
  • invite persons who have objections to the proposed by-laws to lodge their objections, in writing, with the council within fourteen days after the last day on which the proposed by-laws are open for inspection.

 

If any objections to any proposed by-laws are lodged with a council the council must not pass a resolution to make the proposed by-laws until it has reconsidered them in the light of the objections.

 

The Minister must approve all by-laws [s 90]. After a council has resolved to pass any proposed by-law, it must be submitted to the Minister for his approval together with a copy of any objections thereto that have been lodged and the comments or recommendations of the council thereon. The Minister may approve them or withhold his or her approval as he or she thinks fit. After consulting with the council, he or she may amend or modify the by-law if this seems to him or he to be advisable and this is not opposed to the true spirit and intent of the proposed by-laws as advertised.

 

The by-law becomes law after it has been approved by the Minister and has been published as a statutory instrument.

 

Powers of Minister

 

The Minister has various powers in relation to councils. He or she may appoint any person to examine the accounts and records of a council [s 138]. If he or she considers it necessary or desirable in the public interest, he or she may appoint one or more persons as investigators, to investigate any matter that relates to the good government of a council area or district, or anything relates to or arises out of the affairs or conduct of a council or any of its committees [s 154].

 

Where, in the opinion of the Minister, a council has failed to give effect to any duty whatsoever imposed upon it by the Act or any other enactment, he or she may after having given the council an opportunity to submit any representations it may wish to make in connection therewith, direct the council to take such action as he or she considers necessary within a time specified by him or her. Where a council fails to take action in accordance with such a direction within the time specified, the Minister may take appropriate action on behalf of the council and recover the expenses incurred in connection therewith from the council [s 155].

 

If anything required to be done in terms of the Act is omitted to be done, or is not done in the manner or within the time so required, the Minister may order all such steps to be taken as in his opinion are necessary or desirable to rectify the matter, and the thing done will be of the same force and effect as if originally done in accordance with the appropriate provision of the Act [s 156].

 

In terms of s 157, the Minister could, by written notice to the councillor and the council concerned, suspend a councillor from exercising all or any of his functions as a councillor in terms of the Act or any other enactment if he or she has reasonable grounds for suspecting that the councillor:

 

  • has contravened any provision of the Prevention of Corruption Act [Chapter 9:16];
  • has contravened s 48 of the Rural Districts Council Act;
  • has committed any offence involving dishonesty in connection with the funds or other property of the council;
  • has been responsible through serious negligence, for the loss of any funds or property of the council, or for gross mismanagement of the funds, property or affairs of the council; or
  • has not relinquished office after his seat became vacant in terms of the Act.

 

As soon as is practicable after he or she has suspended a councillor the Minister must cause a thorough investigation to be conducted with all reasonable dispatch to determine whether or not the councillor has been guilty of any act, omission or conduct referred to above.

 

If, following investigation, the Minister was satisfied that the grounds of suspicion on the basis of which he or she suspended a councillor have been established as fact, he or she may, by written notice to the council and the councillor concerned, dismiss the councillor, and the councillor’s seat will then become vacant.

 

A person who has been dismissed in terms of s 157(3) of the Act was disqualified from nomination or election as a councillor for a period of five years.

 

The Minister could appoint one or more commissioners to act as the council if there are no councillors for a council area or all the councillors for a council area are unable, for any cause whatsoever, to exercise all or some of their functions as councillors. The commissioner however cannot, without the approval of the Minister, exercise any power conferred on the council to impose levies or to alienate any land or interest in land or to increase any charge fixed or levied by the council or to fix any new charge [s 158].

 

These provisions on suspension and dismissal by the Minister are now incompatible with the provisions of section 278(2) of the Constitution which provides that an Act of Parliament must   provide for the establishment of an independent tribunal to exercise the function of removing from office mayors, chairpersons and councillors, but any such removal must only be on the grounds of—

(a) inability to perform the functions of their office due to mental or physical incapacity;

(b) gross incompetence;

(c) gross misconduct;

(d) conviction of an offence involving dishonesty, corruption or abuse of

office; or

(e) wilful violation of the law, including a local authority by-law.

 

Association of Rural District Councils

 

The Association of Rural District Councils has been actively involved in research, training and advocacy with a view to strengthening local governance. The Association meets with the local government ministry on an ad hoc basis.

 

 

Structures for development

 

The main structures established for developmental purposes in rural areas include:

 

  • The District Development Fund (established in terms of the District Development Fund Act [Chapter 29:06]). This fund was set up for developing the communal lands. The Minister of Local Government controls the fund with his Assistant Secretary (Development) acting as executive officer in relation to disbursements. The Minister may declare an area to be a development area and apply funds to development projects in this area. At district level the District Administrator will assist rural district councils in forward planning for development. This is an institution created by central government to assist in the provision of infrastructure and is one of the main sources of public finance for the development of rural areas, especially the communal lands. Though the agency scored some resounding successes in the early 1980s, it has since lost momentum and has become a vehicle for massive mismanagement of resources and corruption.The Association of Rural District Councils has called for the DDF to be put under the direct supervision of local authorities and for a Commission of Inquiry to be set up to investigate its activities. At its biennial conference in August 2004 this association the DDF came under heavy criticism for not consulting local authorities, who are the planning authorities, on its activities, resulting in the duplication of roles. (The Herald 24 August 2004)
  • The Provincial Governors whose main function is by a process of consultation, suggestion and advice, to foster and promote the activities of the various Ministries and organs of central government in implementing development plans prepared by the provincial council established for his or her province;
  • In each province there is a Provincial Council which is headed by the Provincial Governor, with the function of developing projects beyond the reach of individual rural district councils.
  • Within each province there are a number of rural district councils, as indicated above, with developmental functions such as establishing and maintaining roads, schools and clinics and the establishment of income generating projects such as establishing townships and business centres.
  • The District Administrator co-ordinates government and local government activities at district level. He or she liaises between rural district councils and central government.
  • In the CommunalLand there are Village and Ward Development Committees. (See next section.)

 

Traditional leadership and governance of Communal Land

 

Chiefs and Headmen are appointed in terms of the Traditional Leaders Act [Chapter 29:17] and their powers and functions are laid down in this Act. Chiefs are traditional leaders who exercise powers in the Communal Land. The main duties and functions of Chiefs are to provide traditional leadership to their communities and to promote and uphold cultural values among members of the community under their jurisdiction, particularly the preservation of the extended family and the promotion of traditional family life. [s 5(1)] Together with Headmen they exercise a variety of administrative functions. They also have adjudicatory functions at local level in terms of the Customary Law and Local Courts Act [Chapter 7:05]. They preside over community courts, which courts apply customary law to resolve civil disputes. A Chief can be removed from office by the President if he or she is found guilty of offences involving dishonesty or misconduct and the Minister recommends his removal. 

 

The President appoints Chiefs taking into account certain factors such as the prevailing customary principles of succession applicable to the community over which the chief is to preside and the administrative needs of the communities in the area concerned in the interests of good governance. Wherever practicable, the President must appoint a person nominated by the appropriate persons in the community concerned in accordance with these principles. [s 3] The local government Minister must appoint a sufficient number of persons nominated by the chief as headmen for each community to assist the chief to properly carry out his duties. [s 8(1)].

 

Communal and Resettlement Land is divided into a number of provinces. In each of these provinces there is a body called Provincial Assembly which consists of all the chiefs in that province and is headed by one of the Chiefs elected by the Chiefs. [s 35] The main functions of this body is to bring to the attention of the Council of Chiefs or the local government Minister matters of national and local interest which affected persons living in their province. [s 36]The Council of Chiefs consists of chiefs elected by the provincial assemblies. [s 37] The Minister or the Council of Chiefs is entitled to refer matters to Provincial Assemblies.

 

  • Each village must establish a village assembly composed of all inhabitants of the village concerned who are over the age of eighteen years. This assembly is presided over by the village head. [s 14] Its function include considering all matters, including cultural matters, affecting the interests and well-being of all the inhabitants of the village, and ensuring the good government of the village. In more detail its functions are as follows:
  • Identification and articulation of village needs;
  • Co-ordination and forwarding of village needs to the Wadco;
  • Co-ordination and co-operating with government extension workers in the operations of

development planning;

  • Co-ordinating and supervision of all activities relating to production and general development of the village area; and
  • Organising the people to undertake projects that require a considerable workforce.

 

Every village assembly must elect members of the village to a village development committee in accordance with regulations made in terms of the Rural District Councils Act [Chapter 29:13]. The village development committee is presided over by the village head. [s 17]

 

Each communal and resettlement ward in a rural district council area must have a ward assembly which will consist of all headmen, village heads and the councillor of the ward. [s 18] The functions of the ward assembly include the following:

  • to supervise the activities of the village assemblies within its jurisdiction;
  • to review and approve development plans or proposals submitted by the village assembly and to submit such plans for incorporation into the rural district development plan;
  • generally to oversee the discharge of functions by village assemblies to ensure good government at that level.

[s 18]

 

In terms of s 59 of the Rural District Councils Act each ward of a council area must have a ward development committee consisting of the councillor for the ward, who will be the chairman of the committee; and the chairman and secretary of every village development committee and neighbourhood development committee in the ward. Section 20 of the Traditional Leaders Act provides that a ward development committee established in terms of the Rural District Councils Act will, in addition to the functions conferred upon it in terms of the Rural District Councils Act, be responsible for reviewing and integrating village development plans in accordance with the directions of the ward assembly.

 

The Ward Development Committee is supposed to be the central planning authority in the ward, overseeing and co-ordinating development plans in their area of jurisdiction. However, in practice, it appears that it is primarily the receiver of information and directives from above (i.e., from central government and from ZANU PF party officials), rather than acting as a channel for bottom-up initiatives.

 

Urban local governance

 

Introduction

 

Soon after independence, the government did away with the previous system under which the so-called township areas were separately administered. Now both high and low-density areas are administered under the same system of local government. Under the scheme of decentralisation incorporated into the Urban Councils Act [Chapter 29:15] elected local government bodies are given the responsibility of providing services to the public and regulating the affairs of their local areas.

 

There are various types of urban local government bodies. There are town, municipal and city councils. The powers of these bodies will depend upon the nature and extent of the area they administer. They range from a small authority such as a town council which will have powers to determine and execute only very limited measures within a small area to a large body such as a city council which will have broad permissive powers as well as having obligatory functions to perform and will possess considerable autonomy in determining and financing priorities in its area.

 

The powers and functions of urban councils are set out in the Urban Councils Act. (However, the smaller councils will be given power to carry out only some of these functions.) The functions specified in the Act include housing development (including low cost housing), road maintenance, organising water supplies, operating hospitals, acquiring land, running markets, etc.

 

Also contained in the Urban Councils Act are provisions setting out the multiplicity of matters upon which urban councils can pass by-laws such as by-laws regulating building construction, licensing by-laws and by-laws aimed at the prevention of disease. When creating by-laws urban councils can either simply adopt model by-laws or they can draw up their own by-laws to suit local conditions.

 

As regards services provided by urban councils, these can be sub-divided into obligatory services which are essential services which the public is obliged to use and to pay for, such as refuse and sewerage disposal and supply of potable water, and optional services such as public transport and health services.

 

In certain specified circumstances, the Minister of Local Government can interfere in the affairs of these elected bodies. Under s 315, he or she may intervene and take appropriate action where the council fails to perform its duties or to deal with its budgetary problems.

 

Finance

 

The main sources of finance for urban councils are rates charged on land and buildings and rentals of properties. Licensing fees are also a source of revenue.

 

Urban councils may also, with the consent of the minister responsible for local government and the minister responsible for finance, raise the necessary funds by issuing stock, bonds, debentures or bills, or from any other source not mentioned in the Urban Councils Act.[s 290].

 

The Act provides for a series of stringent financial control measures.

 

Establishment of municipalities and towns

 

Whenever the President considers it desirable he or she may, subject to the Act, by proclamation in the Gazette, after any local authority concerned has been consulted establish a municipality or town. After doing this he or she must then establish a municipal council or a town council, fix the area of the municipality or town and give it a name. He or she may also divide the council area into any number of wards [s 4].

 

Town and city status

 

A growth point, unincorporated urban area, local board or council may apply to the Minister for a change of its status. The Minister must consider any application made and, if he or she decides to grant the application, he or she must take the necessary steps under the Act to effect the change of status applied for. On receipt of an application for city status by a municipal council, the Minister must appoint, at the expense of the municipality concerned, a commission consisting of such number of persons as the Minister may determine to consider the matter and make recommendations to him or. He or she must then publish in the Gazette and in three issues of a newspaper notice of the appointment of the commission and calling upon any person who wishes to make representations to submit them to the commission before a date specified in that notice, being not less than thirty days after the date of the first publication of the notice in the newspaper. The commission must consider the matters set out in the First Schedule in addition to any other matters that it considers to be relevant and must thereafter submit its report to the Minister, and any such report must refer to the substance and number of any representations made to it. As soon as practicable after receiving the report the Minister must lay it before Parliament. If, in pursuance of a resolution of Parliament, an address is presented to the President requesting him or he to accord city status to the municipality specified in the address, the President may, by proclamation in the Gazette, declare that the status of the municipality concerned is altered to that of a city.

 

Types of urban local authorities

 

There are four species of urban council. These are Local Boards, Town Councils, Municipalities and City Councils. The smallest body with the least powers is the Local Board and the largest with the greatest powers is the City Council. Presently there are twenty-seven urban councils and of these, four are local boards, seven town councils, nine municipalities and seven city councils.

 

Composition of councils

 

City councils and municipalities consist of elected councillors. Elections for councillors are now held at the same time as elections for parliamentarians. Section 58(1) of the Constitution provides that a general election and elections for members of the governing bodies of local authorities must be held within four months of a proclamation dissolving Parliament.

 

A council consists of a number of councillors. The Minister decides on the number of councillors for each council but the number must not less than six. If the council area is divided into wards there will be one councillor for each ward unless the Minister fixes different numbers of councillors for different wards [s 39].

 

In addition to the elected councillors the Minister may now also appoint councillors to represent special interests but the numbers of these councillors may be more than a quarter of the elected members. The appointed councillors hold office “during the pleasure of the Minister.”This provision for appointed councillors was introduced in 2008. The appointed participate in the business of the councils and perform the same functions as elected councillors, except they do not have a vote at council meetings. They are also entitled to the same benefits as if they were elected councils.

 

Each City Council and municipality must establish an Executive Committee. This comprises the mayor, his or her deputy and the chairpersons of the other compulsory committees specified in the Act. The chairpersons of committees are elected by the other councillors and not chosen by the mayor.

 

A Town Council consists of elected councillors and is headed by a chairperson elected by the councillors. The local government minister appoints all or some of the councillors of a Town Board.

 

Mayors

 

Previously executive mayors headed municipal councils. These were directly elected by local people in local government elections. The system of executive mayors came into operation in 1997 by an amendment to the Urban Councils Act. In 2008 the system of executive mayors was abolished. Majors are now elected by the elected councillors. A person who is elected as mayor does not have to be a person who is himself or herself an elected councillor. This is because section 103 provides that the person who is elected as mayor can be a councillor or “other person.” The term “other person” is not defined. Thus in 2008 the person elected as mayor of Harare was not a person who had stood for election as a councillor.

 

The first meeting at which the mayor is elected will be chaired by the provincial administrator in respect of the Harare and Bulawayo municipal councils and the district administrator in respect of other councils.

 

The mayor or deputy mayor chairs all council meetings and these councils use the committee system to conduct their affairs, with the various specialist committees dealing with matters of detail, and matters of policy being dealt with by the full council. Co-ordination is required in order to avoid duplication and overlap.

 

Town councils are not presided over by mayors. Instead these councils elect a chairperson and a deputy chairperson.

 

Disqualifications of councillors

 

If a councillor is convicted of a criminal offence and sentenced to at least 6 months’ imprisonment, he or she ceases to be a councillor [s 41(7)].

 

Functions of mayors

 

A mayor presides over all meeting of his or her council and has both a deliberative and casting vote. [s 104]

 

Dismissal and suspension of mayors

 

The President may require a mayor to vacate his office if the mayor has been guilty of any conduct that renders him or her unsuitable as mayor, or if he or she is mentally or physically incapable of efficiently carrying out the functions of his office.

 

The Minister can suspend a mayor whom he or she suspects on reasonable grounds of engaging in conduct that renders him or her unsuitable as mayor or where criminal proceedings have been instituted against the mayor for an offence that can attract a sentence of imprisonment without the option of a fine.

 

Local Government Board

 

This Board mainly deals with the organisation and control of staff of urban councils. The Board consists of seven members appointed by the Minister as follows:

  • one must be chosen from a list of not less than three names submitted by the Urban Councils Association;
  • one must be chosen from a list of not less than three names submitted by the town clerks; and
  • one must be chosen from a list of not less than three names submitted by the Municipal Workers Union; and
  • one must be a member of the Public Service Commission chosen from a list of not less than three names submitted by the Minister responsible for the Public Service; and
  • two must be appointed for their ability and experience in public administration and who are or have been employed by a local authority or the Public Service for a period of not less than five years in a senior post.

[ s 116]

 

The functions of this Board are:

  • to provide guidance for the general organization and control of employees in the service of councils;
  • to ensure the general well-being and good administration of councils staff and the maintenance thereof in a high state of efficiency;
  • to make model conditions of service for the purposes above for adoption by councils;
  • to make model regulations stipulating the qualifications and appointment procedures for senior officials of councils;
  • to approve the appointment and discharge of senior officials;
  • to conduct inquiries into the affairs and procedure of councils; and
  • to exercise any other functions that may be imposed or conferred upon the Board in terms of this Act or any other enactment.

 

Local government staff members are recruited by local authorities themselves and have the power to discipline and dismiss staff but the Local Government Board must approve the appointments and dismissals of senior staff.

 

Suspension and dismissal of councillors

 

In terms of s 114 the Minister had the power to suspend and dismiss councillors. The Minister may suspend a councillor if he or she has reasonable grounds for suspecting that a councillor–

  • has contravened any provision of the Prevention of Corruption Act [Chapter 9:16]; or
  • has contravened section 107, 108 or 109; or
  • has committed any offence involving dishonesty in connection with the funds or other property of the council; or
  • has been responsible through serious negligence, for the loss of any funds or property of the council or through gross mismanagement of funds, property or affairs of the council; or
  • has not relinquished office after his seat became vacant in terms of this Act.

 

Not later than 45 days after suspending a councillor, the Minister must cause a thorough investigation to be conducted with all reasonable dispatch into the allegations. After the investigation, if the Minister is satisfied that the grounds for suspension have been established, he or she may dismiss the councillor.

 

If, following investigation, the Minister is satisfied that the grounds of suspicion on the basis of which he suspended a councillor have been established as fact, he may, by written notice to the

council and the councillor concerned, dismiss the councillor, and the councillor’s seat will then becomevacant.

 

A person who has been so dismissed will be disqualified from nomination or election as a councillor for a period of five years.

 

These provisions on suspension and dismissal by the Minister are now incompatible with the provisions of section 278(2) of the Constitution which provides that an Act of Parliament must   provide for the establishment of an independent tribunal to exercise the function of removing from office mayors, chairpersons and councillors, but any such removal must only be on the grounds of—

(a) inability to perform the functions of their office due to mental or physical incapacity;

(b) gross incompetence;

(c) gross misconduct;

(d) conviction of an offence involving dishonesty, corruption or abuse of

office; or

(e) wilful violation of the law, including a local authority by-law.

 

Inquiries by the Minister and appointment of investigators

 

The Minister may, if he or she considers it necessary or desirable in the public interest, appoint one or more persons as investigators to carry out investigations and report to him or her. He or she can appoint these investigators to inquire into any matter which relates to the good government of a council area or local government area or arises out of the government of a council area or local government area; or relates to the failure of a council to undertake any function or provide any facilities for which it has the necessary power in terms of this Act, which power it has failed to exercise; or relates to or arises out of the affairs of a council. On receipt of the report from the investigators the Minister may take such steps as in his opinion are necessary or desirable to rectify any defect or omission revealed by the report [s 311].

 

Minister may give directions on policy

 

Under s 313 the Minister may give a council such directions of a general character as to the

policy it is to observe in the exercise of its functions, as appear to the Minister to be requisite in the national interest. But where he decides to do this, he must give notice to the council of his or her proposal and the council must submit to the Minister its views on the proposal and the possible financial implications on the finances and other resources of the council. The council must, with all due expedition, comply with any direction given by the Minister.

 

Power of Minister to reverse, suspend, or rescind resolutions, decisions of councils

Under s 314 where the Minister is of the view that any resolution, decision or action of a council is not in the interests of the inhabitants of the council area concerned or is not in the national or public interest, the Minister may direct the council to reverse, suspend or rescind such resolution or decision or to reverse or suspend such action. The council must, with all due expedition, comply with any such direction.

 

In MWI Zimbabwe (Pvt) Ltd v Ruwa Town Council & Anor HH-237-11 the first respondent town council had invited tenders for the supply of water to the town. The council’s technical committee had recommended that the tender be awarded to the second respondent, which was the lowest bidder, but the council resolved to award the tender to the applicant. The district administrator for the area wrote to the secretary of council, directing that the resolution to award the tender be suspended in terms of s 314(1) to (3) of the Urban Councils Act [Chapter 29:15].  A special full board meeting of the council was held on the issue as a result of the district administrator’s letter. A motion to rescind the previous resolution and accept the technical committee’s recommendation was adopted and the tender awarded to the second respondent. A week later, the Minister of Local Government, purportedly acting in terms of s 314 of the Act rescinded the resolution, which had already been purportedly rescinded by the council. He said that the resolution violated s 211 of the Act, as it was not in the best interests of the inhabitants of the town, who had not had safe and adequate water supply for a long time. The applicant then filed an application, seeking an announcement of the results of the tender within 4 days of the order and an interdict against the award of the tender to any party other than itself. On the return day it proposed to seek a declaration of nullity of the rescission of the tender and an order that it be confirmed as the winner of the tender process. It was argued for the applicant that the resolution still subsisted and that it granted a legitimate expectation to the applicant that it won the tender. It was argued for the council that the resolution was properly rescinded by council in terms of s 89 of the Act. It was also argued that until the results of the tender were officially communicated to the applicant, the applicant did not have a prima facie right or any legitimate expectation of those rights to the award of the tender to itself.

 

The court held that the procedure for rescission of a council resolution is set out in s 89. That procedure was not followed: no committee was set up that recommended cancellation of the resolution, nor was there evidence that seven’ days notice of motion, signed by not less than one-third of the membership of the council, was moved through the chamber secretary before the meeting at which the resolution was purportedly rescinded. The district administrator had not authority to usurp the Minister’s powers in s 314 of Councils Act, nor did he have power to suspend the resolution pending discussion. The Minister is not empowered by s 314 to rescind council resolutions. He may, if he is of the view that any resolution, decision or action of a council is not in the interests of the inhabitants of the council area or is not in the national or public interest, may direct the council to reverse, suspend or rescind such resolution. It is council that reverses, suspends or rescinds or does any such action directed by the Minister. It is not the Minister himself who does it. All that council is enjoined to do is to obey the Minister. Here, the rescission was not properly rescinded and was still extant. The council had yet to comply with the Minister’s directive. Under s 88(6)(b)(ii) of the Act, the public has no right to inspect or obtain copies of minutes relating to a tender where the lowest bid is not the one accepted by the council. Accordingly, until the offer was communicated, the applicant had no legitimate expectation that the tender would be awarded to it. Further, the process of oversight by the minister or council over council decisions demonstrated the absence of any legitimate expectation by any tenderer in the process until the conclusion of the oversight role.

 

Minister’s power to direct certain actions and elimination of deficit

Under s 315 Where–

  • a council has failed to give effect to any of the duties imposed upon it by or under this Act or any other law; or
  • the final accounts of a council for any financial year reveal an accumulated deficit on the consolidated revenue account and the council has not provided to the satisfaction of the Minister for the elimination or reduction of such deficit;

the Minister may, after having given the council an opportunity to submit any representations it may wish to make in connection therewith, direct the council to take such action as he considers necessary within a time specified by him or her. If the council fails to take the action directed, the Minister may take appropriate action on behalf of the council and recover the expenses incurred in connection therewith from the council.

 

Correction of errors or omissions

Under s 316if an actor thing required to be done or in terms of this Act is not done or is not done in the manner or within the time so required, the Minister may order all such steps to be taken as in his opinion are necessary or desirable to rectify such act or thing, and when it is done in this manner it will have the same force and validity as if originally done the said act or thing when done in terms of the said order shall be of the same force and validity as if originally done in accordance with the appropriate provisions of this Act. But such action must not deprive a person of any right he or she has acquired before the Minister made his or her order.

 

Appointment of caretakers

 

Under s 80 the Minister had the power to appoint three caretakers to run the affairs of the council area where there are no elected councillors for a council area or the elected councillors have been suspended or imprisoned or are otherwise unable to exercise all or some of their functions. The persons appointed as caretakers do not have to be qualified to become elected councillors. The caretakers may exercise all the functions of elected councillors except that they need the Minister’s approval for such actions as levying rates or taxes or increasing charges. Caretakers are paid monthly salaries at a rate determined by the Minister.

 

Previously the Minister was empowered to appoint what were called Commissioners where there were no councillors. These Commissioners held office for a maximum period of 6 months but frequently these Commissioners were kept in place illegally for periods exceeding 6 months. See Zvobgo v City of Harare2005 (2) ZLR 164 (H).

 

Section 278(2) of the Constitution now provides that–

 

“An Act of Parliament must provide for the establishment of an independent

tribunal to exercise the function of removing from office mayors, chairpersons and

councillors, but any such removal must only be on the grounds of—

(a) inability to perform the functions of their office due to mental or physical

incapacity;

(b) gross incompetence;

(c) gross misconduct;

(d) conviction of an offence involving dishonesty, corruption or abuse of

office; or

(e) wilful violation of the law, including a local authority by-law.”

 

By-laws

 

The Act lays down complex procedures for the passing of by-laws, which include laying open for any objections the proposed by-laws. These procedures must be strictly adhered to otherwise the by-laws will be invalid.

 

A council has the power to make by-laws [s 228]. After passing a resolution for the making of any by-laws, a council must place for inspection for thirty days a copy of the proposed by-laws at the offices of the council or at any other place where notices of the council are usually displayed or published. It must also publish a notice in a newspaper and post it at some prominent place in the council area. The notice must:

 

  • describe the general effect of the proposed by-law and the area to which it will apply;
  • state that a copy of the proposed by-law is open for inspection; and
  • invite persons who have objections to the proposed by-law to lodge their objections, in writing with the council within 30 days of publication of the notice in the newspaper.

 

If any objection to any proposed by-law is lodged with a council the council must not pass a resolution to make the proposed by-law until it has reconsidered them in the light of the objections.

 

The Minister must approve all by-laws [s 229]. After a council has resolved to pass any proposed by-law, it must be submitted to the Minister for his approval together with a copy of any objections thereto that have been lodged and the comments or recommendations of the council thereon. The Minister may approve it or withhold his approval as he or she thinks fit. After consulting with the council, the Minister may amend or modify the by-law if this seems to him or her to be advisable and this is not opposed to the true spirit and intent of the proposed by-laws as advertised.

 

The by-law becomes law after it has been approved by the Minister and has been published as a statutory instrument.

 

Ministerial power in relation to by-laws

 

Where a council has not made by-laws for any matter in respect of which it may make by-laws and the Minister considers that the matter should be controlled or regulated by by-laws, he or she may direct the council to make by-laws or to adopt model by-laws in relation to that matter within such period as he or she may specify. If the council fails to do so the Minister may make by-laws on behalf of the council in respect of that matter, or make by-laws adopting the appropriate model by-laws on behalf of the council. If the Minister proposes to make by-laws on behalf of a council he or she must lay the proposed by-laws open for inspection and receive any objections [s 233].

 

Urban Council Association of Zimbabwe

 

This association, together with the Association of Rural District Councils, has been actively involved in research, training and advocacy with a view to strengthening local governance. It has established a committee that meets reportedly regularly with the Minister for Local Government to discuss matters of mutual concern.

 

These two associations made useful submissions about reforming the local government sector during the Presidential Constitutional Commission with both in strong favour of “constitutionalising” local government in Zimbabwe.

 

Planning and development

 

The Regional, Town and Country Planning Act [Chapter 29:12] provides the mechanisms for planning in regions, districts and local areas. It provides for the compilation of regional plans, master plans and local plans in both urban and rural areas. As regards development the most important legislation is the Provincial Councils and Administration Act [Chapter 29:11].