BILL WATCH 28/2021
[6th May 2021]
The Provincial Councils and Administration Amendment Bill
Work in Progress or a Dog’s Breakfast?
The Provincial Councils and Administration Amendment Bill [link] was published in the Gazette on the 31st March and may be presented in the National Assembly at any time. In this Bill Watch we shall attempt to explain its contents – no easy task because it seems put together without clarity about what needs to be achieved and a rather hazy idea of how to draft intelligible legislation. It is not even clear if the Bill is supposed to amend the existing Provincial Councils and Administration Act [link] or to replace it entirely, because while some clauses specifically amend provisions of the Act, many other clauses seem intended to form part of a separate piece of legislation. Clause 1 of the Bill only adds to this confusion: it says the title of the Bill is “the Provincial and Metropolitan Councils Administration Act”, without any reference to amendments. In any event, the Bill appears to be a preliminary draft rather than a final product: in several clauses there are references to “section xx of the Act”, which suggests that the intention was to fill in the numbers at a later stage, and in clause 16 there is the following cryptic note, which should have been acted upon and then deleted before the Bill was sent for printing:
“**A clause that states Provincial Council shall include a Metropolitan Council, where appropriate. Sections 23, 24, 2 include Metropolitan Councils.”
The task of explaining the Bill is made even more difficult by the absence of an explanatory memorandum such as is usually inserted in Bills printed for presentation in Parliament.
Despite all this, we shall attempt to analyse what seem to be the important provisions of the Bill.
Objective of the Bill
According to the Bill’s long title, its objective is to bring the Provincial Councils and Administration Act [which we shall call “the Act” in this bulletin] into conformity with the Constitution. In assessing how far the Bill achieves its objective, we must bear in mind what the Constitution says about provinces and provincial and metropolitan councils:
What the Constitution says about provinces and provincial and metropolitan councils
[Sections referred to under this heading are sections of the Constitution]
- There are 10 provinces, whose boundaries are to be fixed and altered as provided by an Act of Parliament, after consultation with the Zimbabwe Electoral Commission [ZEC] and the people in the provinces concerned [section 267].
- The two metropolitan provinces of Harare and Bulawayo each have a metropolitan council, and there is a provincial council for each of the other provinces [sections 268 and 269].
- Each provincial council is made up of the parliamentarians elected for the province, plus the mayors and chairpersons of local authorities within the province, plus ten persons elected for the province at a general election [section 268]. The councils are each chaired by a person elected by the council from a list submitted by the party with the greatest number of National Assembly seats in the province [section 272].
- The two metropolitan councils are made up of the parliamentarians elected for those provinces, plus the mayors or chairpersons of any local authorities within the metropolitan provinces. The councils are chaired by the mayors of the metropolitan city councils (Harare or Bulawayo, as the case may be) [section 269].
- Provincial and metropolitan councils are given planning and co-ordinating functions under section 270 of the Constitution, plus any other functions, including legislative functions, that may be conferred on them by an Act of Parliament [section 270(1)(f)].
- Section 264 of the Constitution states that wherever appropriate governmental powers and responsibilities must be devolved to provincial and metropolitan councils which are competent to carry them out efficiently and effectively.
- Councils and local authorities are supposed to be allocated at least five per cent of national revenues every year (section 301 of the Constitution).
- Finally, it should be noted that the Constitution does not mention either provincial governors or provincial ministers.
To what extent will the Bill bring the Act into conformity with these constitutional provisions?
Clause 7 of the Bill will replace section 3 of the Act, which provides for the establishment of provinces and the alteration of their boundaries. The new section 3 will give the President power to divide provinces into districts and to alter district boundaries, in both instances after consulting ZEC and the people in the districts concerned as required by the Constitution. To the extent that it requires consultation the new section will bring the Act into line with the Constitution, but it is problematic for two reasons:
- The new section does not deal with the alteration of provincial boundaries, and as a result there will be no law that allows those boundaries to be altered. In other words, existing provincial boundaries will remain fixed forever.
- The division of provinces into districts, and the alteration of district boundaries, are covered by section 6 of the Rural District Councils Act. The Bill will not alter or repeal section 6 of that Act so there will be two pieces of legislation covering the same topic.
The Act permits the President to appoint provincial governors [in section 4], to fix their terms of office [section 6] and their conditions of service [section 9] and to dismiss them at will (section 8(2)(b)). Provincial governors perform high-level co-ordinating roles within their provinces [section 10] and, when the Act was passed by Parliament in 1985, were intended to be, in effect, provincial Ministers. No provincial governors have been appointed for a great many years and their roles have been taken over by Ministers of State for Provincial Affairs, of whom there are currently 10 – one for each province.
Amendments to be made by the Bill
The Bill proposes to change the title of provincial governors to “Ministers of State and Devolution” throughout the Act – though the amendment is so ineptly drafted it won’t actually do that. Even if the drafting is corrected, there will be difficulties:
- If the Ministers of State are to be Ministers in the true sense they have to be appointed in terms of section 104 of the Constitution. Under the Bill they will not: they will be appointed under section 4 of the Act as amended. Furthermore, the Ministers of State under the Bill may not even be qualified for appointment as Ministers under the Constitution because they need not be Members of Parliament whereas real Ministers must generally be drawn from Parliament.
- Ministers of State will be appointed for five-year terms under section 6 of the Act as amended by the Bill, whereas real Ministers hold office indefinitely at the President’s pleasure.
- So the Ministers of State will not be Ministers for the purposes of the Constitution – and if they are not, then what will they be?
Devolution of Powers to Councils
The Bill provides for the devolution of governmental powers to provincial and metropolitan councils, but it does so in a confusing and haphazard way.
Clause 5(2) states:
“The competence of a Council to carry out any devolved functions shall be as may be prescribed”
which is difficult to understand. Clause 5 then goes on to say that the President, acting on the advice of the Minister [of Local Government, Public Works and National Housing] can issue proclamations devolving specified governmental powers and responsibilities upon councils. Clause 6 of the Bill then confuses things by stating that before the President issues such a proclamation:
- the Minister will have to consult “national or provincial organisations representing local authorities in the province concerned” and issue notices calling for representations from the public, and
- Parliament [presumably both the Senate and the National Assembly] will have to resolve to present an address to the President requesting him to devolve powers to the council concerned.
Apart from the confusion of having two procedures [one with the President acting on the advice of the Minister, the other with him acting at the request of Parliament] there are difficulties with this:
- If the President is required to act on the advice of the Minister, as stated in clause 5, he will be obliged to follow the Minister’s advice. Is that really going to happen?
- While it is admirable to require widespread consultation before powers are devolved to councils, and also to involve Parliament, the process will be lengthy and cumbersome. It would be simpler for powers to be devolved directly in an Act of Parliament.
- Later clauses of the Bill give councils power to legislate for matters set out in the First Schedule to the Bill [it is in fact the only schedule]. These range from the control of indigenous forests through animal and disease control, consumer protection, health services, housing and public transport, all the way to vehicle licensing and welfare services. It is hard to see what additional functions will need to be devolved to councils.
Membership of Councils
The Bill will insert no fewer than two new sections 14 into the Act, the first dealing with members of provincial and metropolitan councils, the second dealing with council chairpersons. Both of them simply reproduce provisions of the Constitution but the provisions they reproduce are likely to be altered by the Constitution of Zimbabwe Amendment (No. 2) Bill, which is currently being fast-tracked through Parliament.
Suspension and dismissal of council members
Clauses 31 and 32 of the Bill propose to insert two new sections into the Act dealing with the suspension and dismissal of council members, including chairpersons. Read together they are likely to cause problems:
- The process for dismissing chairpersons and members is initiated by the Minister, if he or she has reasonable grounds for suspecting there are grounds for their dismissal. This means the process is in danger of being politicised.
- The procedure for dismissal applies not just to chairpersons, as provided in section 272 of the Constitution, but to all council members. The problem here is that most members hold their seats on the council because they are Senators or Members of the National Assembly elected for the province concerned, or are mayors or chairpersons of local authorities within the province: if they are removed from office on the council, who is to replace them? The same problem arises with a new section 22 which the Bill will insert in the Act. This states that if a member of a council is absent from three or more council meetings and the council has not permitted or condoned the absence, the member commits gross misconduct and the council must refer the matter to the Minister for “removal of the member from office”. If mayors, chiefs or members of Parliament are removed from office for failing to attend council meetings, how can they be replaced?
Committees of Councils
The Bill provides for councils to appoint various committees, in particular a finance committee, an environmental management committee, an audit committee and a development committee. These provisions are admirable but it is not clear if the new sections providing for these committees are supposed to supplement or replace existing sections of the Act.
Employees of Councils
The Bill provides for councils to appoint staff, in particular clerks to be their chief executive officers. Clerks will serve for a maximum of 12 years, which may help to prevent or at least reduce the corruption that is endemic in local authorities. Among their other staff councils will appoint legal advisers, who will go by the grandiose title of “counsel” even though they need not be registered legal practitioners.
Councils will fix the conditions of service of their staff after consultation with the Minister of Finance, so in this regard at least councils will not be subjected to undue control by central government.
A new section 54 will prohibit employees of councils from obeying orders that are manifestly illegal. This is a welcome provision which should be inserted in all legislation regulating the conduct of public officers and employees.
Legislative Powers of Councils
The provisions of the Bill that give councils legislative powers are hopelessly confused. A good example is clause 57. Subclause (1) says:
“In this part ‘power to make law’ means to propose legislation for adoption by Parliament in consultation with all stakeholders with respect to any matter within the competence of the Councils jurisdiction.”
To begin with, the term “power to make law” is not used anywhere else in the Bill, so the subclause is meaningless. If any meaning can be attached to it, the subclause indicates that councils have no power to enact legislation themselves but can merely propose legislation for Parliament to adopt. However, this meaning is contradicted by subclause (2) which says that councils can in fact make legislation for the following matters:
- The “functional areas” [i.e. topics] specified in Part A of the Schedule to the Bill, if those areas are not already covered by national legislation [i.e. Acts of Parliament or Ministerial regulations].
- The functional areas specified in Part B of the Schedule, if those matters are not already covered by by-laws of local authorities.
However, Part A of the Schedule is headed “Functional Areas of Concurrent National and Provincial Legislative Competence”, which suggests that both provincial and national legislation can cover those topics; and Part B of the Schedule is headed “Functional Areas of Exclusive Provincial Legislative Competence”, which suggests that only provincial councils, not local authorities, can make legislation within those areas. In other words, the Schedule contradicts clause 57.
The rest of the Bill does not clarify matters much except to say, nearly 50 clauses later, that legislative enactments made by councils are to be called “ordinances”.
Financial Provisions and Allocation of Income
The Bill does not regain clarity when it deals with financial matters. Again, one example serves to illustrate the point. According to clause 66, among the sources of income for councils are:
“taxes, levies and duties other than income tax, value-added tax, general sales tax, rates on property or customs duties in their respective provinces a certain amount and royalties collected by local authorities”.
Make sense of that if you can!
Section 301 of the Constitution requires an Act of Parliament to provide for allocations of revenue from central government to provincial and metropolitan councils and to local authorities. At least five per cent of national revenues must be allocated to provinces and local authorities every year. The Bill tackles this by requiring the Minister of Finance to prescribe [presumably in regulations] a “fiscal equalisation model” for the allocations, taking into account criteria listed in clause 67 of the Bill. A body called the Inter-governmental Fiscal Transfer Task Force will also be set up to work out a formula for apportioning revenues to provincial and metropolitan councils [but not local authorities]. There seems to be no link between the Minister’s fiscal equalisation model and the formula worked out by the Task Force. There is also no provision for the Task Force’s formula to be published, so the process of allocation is liable to be opaque.
It will be apparent from what we have said in this bulletin that the Bill has been unskilfully cobbled together and will need a great deal more work put into it before it is fit to be presented to Parliament. This is unfortunate because the devolution and decentralisation of power – which is what the Bill is supposed to achieve – is one of the founding values set out in section 3 of the Constitution. And it is now eight years since the Constition was enacted.
On the other hand perhaps the Bill is a telling indication of how unimportant the government considers devolution and decentralisation to be.