News / National
Parly rejects law, to clip minister's power
04 Oct 2017 at 08:25hrs | Views
A PARLIAMENTARY committee has shot down proposed amendments to the Shop Licensing Act arguing new provisions giving the minister powers to approve budgets of local authorities violate constitutional provisions on the autonomy of councils.
All council and local authority annual budgets require approval from the Minister of Public Works, Local Government and National Housing before they can be implemented. After deliberations the Parliamentary Legal Committee on Shop Licensing resolved that an adverse report be issued in respect of clause 7 of the Amendment Bill amending section 13 of Shop Licences Act and clause 8 of the Bill repealing section 14, with all sections to be amended falling in Chapter 14:17 of the Act.
Clause 7 amends section 13(2) (c) of the principal (Shop Licensing) Act, which provides fixing of fees , to the effect that local authorities must incorporate every licensing fee into their annual budget and such budgets shall be approved by the Minister.
"The approval of annual budgets of local authorities by the Minister violates section 276 of the Constitution which gives local authorities the right to govern on their initiatives and the power to make by-laws, regulations and the power to levy rates and taxes in order to raise their own revenue," the committee noted in its report.
According to the parliamentary committee, the involvement of the local Government minister in council business had reduced the authorities to appendages of central Government. It said minister's power to approve council budgets was inconsistent with devolution principles set out in Chapter 14 of the Constitution.
The devolution principles grant local Governments new powers and responsibilities in three dimensions: political, administrative, and fiscal.
These dimensions give local Governments discretionary space and they should not be unconstitutionally limited. The proposal in the Bill is inconsistent with the spirit of the Constitution leading to serious shortcomings in the administration of local Government.
According to the committee another amendment to section 13 (2) (c ) of the Shop Licences Act takes away the authority conferred by section 264(1) which stipulates that "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".
The interference by the minister defeats the whole purpose of devolution of powers and provisions of section 5 of the New Constitution, which establishes three tiers of government namely national Government, provincial and local authorities. Clause 8 sought to repeal section 14 of the principal Act, which provides for the publication of intention to apply for a shop licence and lodging of objections to such applications.
The publication is done in local press circulating in the area while certain requirements must be met, including waiting period of about 56 days before the application is considered to allow council to receive objections if any from any third party.
The Bill seeks to do away with this prolonged cumbersome procedure by repealing the requirement for notice publication and removing the lodging of objections.
"The repealing of section 14 of the principal Act in clause 8 is inconsistent with section 68 (1) of the Constitution as it limits a procedurally fairness process and also offends section 3(2) of the Administrative Justice Act," the committee said.
The publication of applications in the press and lodging of objection ensures that interested parties are well informed about applications made and would enable such persons to raise their concerns, if any, the parliamentary committee said.
"This is in line with section 68 of the Constitution, which guarantees the right to administrative justice. Section 68(1) of the Constitution provides that, 'every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, and impartial and both substantively and procedurally fair".
All council and local authority annual budgets require approval from the Minister of Public Works, Local Government and National Housing before they can be implemented. After deliberations the Parliamentary Legal Committee on Shop Licensing resolved that an adverse report be issued in respect of clause 7 of the Amendment Bill amending section 13 of Shop Licences Act and clause 8 of the Bill repealing section 14, with all sections to be amended falling in Chapter 14:17 of the Act.
Clause 7 amends section 13(2) (c) of the principal (Shop Licensing) Act, which provides fixing of fees , to the effect that local authorities must incorporate every licensing fee into their annual budget and such budgets shall be approved by the Minister.
"The approval of annual budgets of local authorities by the Minister violates section 276 of the Constitution which gives local authorities the right to govern on their initiatives and the power to make by-laws, regulations and the power to levy rates and taxes in order to raise their own revenue," the committee noted in its report.
According to the parliamentary committee, the involvement of the local Government minister in council business had reduced the authorities to appendages of central Government. It said minister's power to approve council budgets was inconsistent with devolution principles set out in Chapter 14 of the Constitution.
The devolution principles grant local Governments new powers and responsibilities in three dimensions: political, administrative, and fiscal.
These dimensions give local Governments discretionary space and they should not be unconstitutionally limited. The proposal in the Bill is inconsistent with the spirit of the Constitution leading to serious shortcomings in the administration of local Government.
The interference by the minister defeats the whole purpose of devolution of powers and provisions of section 5 of the New Constitution, which establishes three tiers of government namely national Government, provincial and local authorities. Clause 8 sought to repeal section 14 of the principal Act, which provides for the publication of intention to apply for a shop licence and lodging of objections to such applications.
The publication is done in local press circulating in the area while certain requirements must be met, including waiting period of about 56 days before the application is considered to allow council to receive objections if any from any third party.
The Bill seeks to do away with this prolonged cumbersome procedure by repealing the requirement for notice publication and removing the lodging of objections.
"The repealing of section 14 of the principal Act in clause 8 is inconsistent with section 68 (1) of the Constitution as it limits a procedurally fairness process and also offends section 3(2) of the Administrative Justice Act," the committee said.
The publication of applications in the press and lodging of objection ensures that interested parties are well informed about applications made and would enable such persons to raise their concerns, if any, the parliamentary committee said.
"This is in line with section 68 of the Constitution, which guarantees the right to administrative justice. Section 68(1) of the Constitution provides that, 'every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, and impartial and both substantively and procedurally fair".
Source - zimpapers
