The Law and Practice of the Devolved System of Governance in Zimbabwe
Author: Jephias Mapuva
Originally Published at Peace and Conflict Monitor on: 08/01/2014
Local governance in Zimbabwe has a chequered history, having been a creature of statute since 1894 and used by the colonial regime to subdue African in decision-making processes. The formation of the first local government institution, the Salisbury Sanitary Board in 1894 was an indication that the colonial administration wanted to keep local governance and public affairs in check. Subsequent local government legislative instruments were intended to consolidate colonial rule and keep the indigenous population powerless over local administration of their affairs. At independence in 1980, Zimbabwe inherited most of the local government legislative practices and continued with a local government system that did not enjoy constitutional protection. As such local government remained a creature of statute with the Minister responsible for local government enjoying enormous executive powers over local authorities. Among the most notable of these enormous powers was the enactment of section 4A of the urban Councils Act (2008) which provided for the appointment of special interest councillors in all urban areas. The rural counterpart of this piece of legislation also existed, but the bottom line of this legislative provision was to identify those individuals with expertise in niche areas and whose incorporation in local authorities would enhance the performance of such local councils. However, the rest is history given that the practice and law of section 4A caused a stir in local government circles, in particular and in the political spectrum in general as different political parties traded barbs over who should be appointed. Most importantly, this piece of legislation, just like most of the local government regime of legislation showed the dire need for the constitutionalisation of local government. The inception of the government of national unity (GNU) in the 2009) and the subsequent enactment of a new constitution in 2013 saw the transformation of the local government system in Zimbabwe, a move that saw the recognition of local government as a component of governance with a constitutional mandate. Under the new constitutional dispensation, local government is presented as a way to empower local communities in decision making processes.
Under Chapter 14 of the new Constitution of Zimbabwe, the law introduces a ‘devolved system` of governance for the first time in the country’s history, local government having existed by way of statutory instruments. The fact that the inter-party GNU ruling coalition agreed on the need to constitutionalise local governance is an indication that they had seen the show falls and deficiencies of the Lancaster House Constitution as well as the disadvantage of operating local government as a creature of statute. Hence the different political players and stakeholders to the new constitution saw devolution as the best option for democratic local governance. This system, at least conceptually has shown that it is different from the ‘centralized system` of governance that existed previously as it seeks to accommodate different needs and desires of different constituencies. However, given that the constitution is still in its infancy, it remains to be seen to what extent the implementation will resonate with the dictates of democracy which should be predominantly participatory. Previously all major decisions I local government were handed down from the centre. However, under a devolved system, it is expected that certain aspects of political, administrative and fiscal management powers will be transferred and shared between the central government and the newly constitutionally-established Provincial/Metropolitan and Local Authority tiers of government, all of which are enablers of devolution.
The devolved system of government is intended to meet certain objectives for it to make a difference in the management of local affairs through community participation. According to Section 264 of the new Constitution, the devolved system is anticipated 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. Additionally, the new Constitution seeks to promote democratic, effective, transparent, accountable and coherent government given that the public is incorporated in major decision making processes and that public officials are required to account for their actions and to display a high degree of transparency in execution of their duties. In addition, given the country’s assorted demographic nature, the devolved system of governance is expected to preserve and foster the peace, national unity and indivisibility of Zimbabwe. Most importantly the devolved system is expected to recognise the right of and empower communities to manage their own affairs and to further their development. Lastly, the new system is expected to ensure the equitable sharing of local and national resources from the national government in order to establish a sound financial base for each provincial and metropolitan council and local authority. It is therefore expected that if these ideals are implemented in letter and in spirit, Zimbabwe’s local government system will be among the most democratic in the region. These are the noble ideals of a devolved system that the people of Zimbabwe overwhelmingly endorsed in the March 2013 Constitutional Referendum which decision the people of Zimbabwe will never regret. However it can be argued that while the significance of these broad ideals cannot be questioned, it is always the question of ‘detail` that determines whether they will transcends the realm of theoretical idealism to practical reality.
It has been noted that research and experiences from other jurisdictions have shown that the success of a devolved system of governance is dependent on various factors, notably, the design of an appropriate policy regime that is compatible with the constitutional provisions and acceptable to the populace. Secondly, the success of a devolved system of governance hinges on the existence of effective legal and institutional instruments that are intended to achieve the set constitutional objectives. In this regard, the new Constitution establishes the constitutional legal framework that is a prerequisite for effective implementation of a devolved system of governance. However, this framework has to be supported by carefully designed policies, legislation and institutions that are intended to achieve the desired objectives.
Given all the prerequisites of a devolved system of governance as a manifestation of democratic governance, it can be argued that the new Constitution provides all the necessary ingredients for a vibrant local governance system in the country. The constitution alludes to some of the pieces of legislation which include inter alia, an Act of Parliament to facilitate the coordination between central government, provincial/metropolitan councils and local authorities (S. 264(3); an Act of Parliament to establish and provide for the functions of Provincial/Metropolitan Councils (S.267(2) and 270(2)); and an Act of Parliament to establish and confer powers and functions upon local authorities (S.276(2)). The content and effect of these laws should ordinarily be gleaned from the essence of what was intended by the Constitution. This means that they ought to be designed in a manner that reflects not only the letter of the Constitution but also the spirit of Chapter 14 .This would mean for instance that they ought to extensively espouse. However, it is rather saddening to note the lack of political will to expedite the alignment, reconciliation and harmonisation of existing local government legislation to the new Constitution. Such delay in aligning existing legislative instruments to the new Constitution would equally affect the implementation of the new regime of constitutional provisions on local governance and may even lead to confusion.
Bio: Jephias Mapuva is a Senior Lecturer in Development Studies at Bindura University of Science Education.
