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An Analysis of the Cabinet principles on devolution

07 Oct 2019 at 09:55hrs | Views
It is important to consult the people widely before making a move to amend the Act of Parliament pertaining to councils, because a lot of things are supposed to change because of the contents of Chapter 14 & 17 of the Constitution. It is therefore premature for the Minister of Local Government, Public Works and Housing Honourable July Moyo to make proposals to amend the said Act before consulting and coming to an agreement with the people of Zimbabwe in whose hands the power and responsibility for local governance now mostly rests in.

All the people in government operate on delegated authority from the people it is therefore not proper, not to consult them before making changes to policies and legislation. The people in Zimbabwe should be consulted before government debates or changes policies or legislation, not only because power over the nation of Zimbabwe now rests in their hands as the shareholders of Zimbabwe. Consulting the people of Zimbabwe before the debating and enactment of legislation enables the government to tap into a wide base of expertise which enables them to produce robust policies and legislation. Robust policies and legislation makes the government's job lighter and achievable.

The Minister of local government, public works and housing was supposed to work with the people within the provincial and metropolitan councils and local authorities and come up with proposed amendments before tabling them to Cabinet and later on to Parliament. After preparing the Bill for the enactment proposed by the Minister ,Parliament is supposed to inform the people .The procedure for enactment of Bills is given us in section 131, section 132 and the fifth schedule and in section 141 which calls for public access to and involvement in Parliament.

Provincial and Metropolitan councils and devolved local authorities should start operating after all the necessary systems have been put in place. It is therefore important that all the Acts of Parliament and systems are put in place before the lowers tiers of government are instituted (start operating).It is imperative for Parliament to seek the assistance of registered Auditing firms which have adequate resources to come up draft all the Acts in as short space of time as it is authorised to do in section 339.After the Acts are drafted Parliament should consult the people before they are debated and enacted.

We know that devolution is the answer to all the problems Zimbabwe is facing and we are hoping to start a new devolved era from January 2020, where there is a will there is a way.

The Legislature (made up of President and Parliament) is responsible for enacting all the Acts of Parliament with the Members of Parliament initiating, debating and passing them and the President signing them. Cabinet can also prepare, initiate legislation send it to the legislature for debating and passing them, with the President signing the Bills which are taken back to Cabinet for implementation. Let us remember that we are preparing legislation which is going to lift Zimbabwe out of the doldrums when enacted and implemented and which will be used for generations to come, we therefore have to be fast and diligent when preparing it.

The information missing from the Cabinet Principles on devolution document which is called for by the Constitution for devolution to be a success is as follows:

1) Section 265(3) An Act of Parliament must provide appropriate mechanisms and procedures to facilitate co-ordination between the central government, provincial and metropolitan councils and local authorities.

2) Section 266(4) An Act of Parliament must make provision to ensure the political neutrality of employees of provincial and metropolitan councils and local authorities.

3) Section 267(2) An Act of Parliament

(a) Must provide for the division of provinces into districts; and
(b) May provide for the alteration of provincial and district boundaries; after consultation with the

Zimbabwe Electoral Commission and the people in the provinces and districts concerned.

What are referred to as districts in Section 267, are what we identify as Wards or local authorities. The three tiers of government as given us in Section 5 are the national government, provincial and metropolitan councils and local authorities. In section 274(2) we are told that urban local authorities are managed by councils composed of Councillors and currently we are identifying the areas which the Councillors manage as Wards, therefore there is no need to create districts. But if Cabinet wants to change the name of Wards to Districts there is no problem with that, but it cannot create another level of government.

Different names can be used to identify the same thing what is important for us, is to know the levels of governance we should have nationwide. In other areas of the Constitution the national government is referred to as the central government which is one and the same thing. Section 5(ii) tells us that different names can be used but what matters is to know the number of levels so that we do not create a level which is not called for by the Constitution.

4) Section 270(2) 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.

5) Section 272(7) An Act of Parliament must provide for the establishment of an independent tribunal to exercise the function of removing chairpersons of provincial councils from office.

6) Section 273(1) An Act of Parliament must make provision, consistent with Chapter 14 for the establishment and functions of provincial and metropolitan councils.

7) Section 274(5) An Act of Parliament may confer executive powers on the mayor or chairperson of an urban local authority, but any mayor or chairperson on whom such powers are conferred must be elected directly by registered voters in the area for which the local authority has been established.

8) Section 275 An Act of Parliament must provide for the establishment of rural local authorities and its management.

9) Section 276(2) An Act of Parliament may confer functions on local authorities including

(a) A power to make by-laws ,regulations or rules for the effective administration of the areas for which they have been established;
(b) A power to levy rates and taxes and generally to raise sufficient revenue for them to carry out their objects and responsibilities.

10) Section 278(2) An Act or Parliament must provide for the establishment of an independent tribunal to exercise the function of removing from office of mayors, chairpersons and councillors.

11) Section 279 An Act of Parliament must provide for the procedure to be followed by councils of local authorities.

12) Section 299(2) An Act of Parliament must provide mechanisms for Parliament to monitor and oversee expenditure by the State and all Commissions and institutions and agencies of government at every level, including statutory bodies, government controlled entities, provincial and metropolitan councils and local authorities, in order to ensure that

13) All revenue is accounted for

14) All expenditure has been properly incurred and any limits and conditions on appropriations have been observed.

15) Section 301 An Act of Parliament must provide for
(a) The equitable allocation of capital grants between provincial and metropolitan councils
(b) Any other allocations to provinces and local authorities and any conditions on which those allocations may be made.

16) Section 315(1) An Act of Parliament must prescribe procedures for the procurement of goods and services by the State and all institutions and agencies of government at every level, so that procurement is effected in a manner that is transparent, fair, honest, cost-effective and competitive.

17) Section 315(2) An Act of Parliament must provide for the negotiation and performance of the following State contracts

a. Joint venture contracts
b. Contracts for the construction and operation of infrastructure and facilities
c. Concessions of mineral and other rights; To ensure transparency, honesty, cost-effectiveness and competitiveness.

From the above Acts which the Constitution is asking Parliament to create, it is asking Parliament to provide an organisation structure and operating and financial systems to be used at national, provincial and metropolitan, and at local authority level which are in line with devolution. For Parliament to come up with an organisation structure and a financial and operational system which meets the dictates of the Constitution it has to look at the duties and the relationships of all the people at national level, metropolitan and provincial level and local authority level. It will also have to look at all the sections pertaining to provincial and metropolitan councils and local authorities and how they are related to each other.

This means all the levels of government have to first agree on the organisation structure which will exist at national ,provincial and metropolitan level and at local authority level before moving on to set out the operating and financial systems and lastly the Acts of Parliament. We cannot create an Act of Parliament before finalising on the organisation structure and the respective operating and financial systems which comply with the constitution. The organisation structures are affected by what the people through their Councillors decide to take.

If Parliament takes some of the sections pertaining to metropolitan and provincial councils and local authorities and leaves some we won't have an organisation structure, financial and operating systems which comply with the Constitution. We can understand everything the Constitution is saying by analysing all the sections and then coming to a conclusion. We have commented on the Cabinet Principles on devolution, but we want all the people to know that a few sections from the Constitution were selected in coming up with the Cabinet principles on devolution as such they do not bring out the spirit of the Constitution on devolution. The bottom line is that the Cabinet principles on devolution cannot be used to implement devolution because critical information which is laid out by the Constitution on devolution was omitted from the document.

- Point 2.4 Cabinet cannot prepare the legislation for the management of Metropolitan and Provincial councils before looking at the Wards because the Constitution gives the first right of refusal to the people concerning administrative and financial power. This means lasting legislation cannot be prepared before finalising with the people the functions which they will take up. The functions which the people take up have a bearing on the operating and financial systems given in the different Acts of Parliament decreed above.

What will happen at Ward level as decreed in section 264 has a lot of bearing on what should happen at provincial and metropolitan level and at national level therefore legislation for Ward level cannot be the last to be prepared but the first . We also cannot have systems(Acts of Parliament) which are incomplete, everything should be agreed from Ward up to National level first before any legislation is prepared. Legislation preparation should be the last step.

With the new Constitution some processes which were being done at national level will be done and provincial and metropolitan level and some at Local authority (district, Ward) level. We have Section 265(3) to help us on what to do on this point. Section 265(3) says An Act of Parliament must provide appropriate mechanisms and procedures to facilitate co-ordination between the central government, provincial and metropolitan councils and local authorities.

- Point 4.3, there is need to add section 270(1)(f) which gives provincial councils the power to exercise any other functions, including legislative functions, that may be conferred or imposed on it by or under an Act of Parliament.

- Point 4.4.3 and 4.4.4, there is need to amend the Constitution, for the presence of the Senate and the National Assembly within the Provincial Councils compromises their independence. The role of Parliament is to supervise all tiers of government and bring them to account in accordance to section 119.Therefore putting them as part of a council which they are supposed to supervise weakens the system.

However when amending the Constitution there is need to make sure that the spirit of the Constitution is maintained by replacing members of Parliament within a council with people who are elected into council by the people in the province.

- Point 6.3 for a tribunal to be independent all interested persons should not be part of the tribunal or select members of the tribunal neither should one person be responsible for selecting all the people in the tribunal. The proposed way of selecting members of the people is as good as saying the Minister should remove from office Chairpersons of Metropolitan and Provincial councils. The Minister for local government and public works and housing is an interested party in the issue of local governance.

We therefore propose that the tribunal for removing the Chairperson of Provincial and Metropolitan Councils be established by Parliament which is responsible for bringing all tiers of government to account.

- Point7.4 .Giving power to the Minister and the Minister of Finance to fix the terms and conditions of service of the other employees of the provincial and metropolitan council takes away governing power and autonomy which is the core objective of devolution from the Metropolitan and Provincial council. The formation of Provincial and Metropolitan Council is supposed to create healthy competition between the different provinces for the benefit of the people of Zimbabwe .For a Metropolitan or Provincial Council to be able to attract and retain expertise which makes it competitive and which in turn enables it to govern effectively and efficiently it should be able to determine the service conditions for its employees.

Therefore the power to fix the terms and conditions of service of the other employees of the provincial and metropolitan council should be in the hands of the respective council for us to reap the benefits of devolution. However the Minister with the help of the Minister of finance can regulate the minimum service conditions for all the employees within Provincial and Metropolitan councils and local authorities.

- Point8.2 and 8.3 for us to reap the benefits of devolution each Metropolitan and Provincial Council should be allowed to appoint and come up with service conditions and the functions of ALL the employees under it as explained on point 7.4 above.

No one in national government should interfere with the operation of metropolitan and Provincial Councils for there to be healthy competition between Metropolitan and provincial councils for the benefit of the people. Everything from the national government should be approved by the provincial council so that there is no conflict between the different tiers of government as emphasized by section 265(1)(a-e).

The operation of Metropolitan and Provincial councils should be guided by the Constitution of Zimbabwe and any Act of Parliament. What we should all keep in mind the supremacy of the Constitution over an Act of Parliament, and any Act of Parliament which contradicts the Constitution is illegal and it should not be recognised.

- Point 11.1c there is no need to burden people further by adding a surcharge for use by provincial and metropolitan councils since some operations are being transferred from national government in turn reducing their expenditure.

Therefore there should be a standing ratio on how the national government, provincial and metropolitan councils and local authorities share all the taxes which were previously collected at national level. Most of government income comes from corporate income tax, value added tax, rates on properties and customs duties, therefore it is unfair to exclude them from the money which is allocated to provincial councils. Doing so will cripple provincial and metropolitan councils whilst leaving most of the income at national level and when people are left with more money than they need or can use, financial abuse kicks in. The sharing of income proposed by point 11.1c is contrary to the spirit of equity in the sharing of national resources which in turn leads to unity and the indivisibility of Zimbabwe which the Constitution preaches throughout.

Each tier of government should prepare five year budgets whose figures are agreed on by the different levels of government looking at the national vision and priorities before submission to Parliament. Budgets approved by Parliament are then used to come up with the sharing ratio for the next five years. The income sharing ratios should be calculated within the first six months of every election.

- Point 12 .A separate board cannot be created to allocate revenue between different tiers of government, the national resources are already stretched to the limit and the people are burdened to the core by taxes and the poor performance of the economy. The Constitution is clear on section 301, the allocation of revenue should be put in place in an Act of Parliament and the Legislature is responsible for doing so. The allocation of revenue should be left to the Legislature as the Constitution says.

As said above the Legislature needs the assistance of an Auditing firm in the writing all the Acts pertaining to Chapter 14 and 17 and any other Act which they need help on, The writing of an Act is generally a once off event, Parliament can incur a once off cost in their writing instead of us having an Advisory board whose costs we will carry for all generations to come. A formula to review the rates should be put in the Act of Parliament.

- Point 13.Even though not stated the Metropolitan and Provincial Chairperson is the one who is responsible for co-ordinating Metropolitan and provincial council activities, he is the one to do everything stated on this point. We also do not understand why there should be a Minister for provincial affairs when there is a Minister of local government isn't this unnecessary duplication which takes up the much needed finances? A Minister reporting to another Minister that's a first, maybe there is a new curriculum on organisational management which we haven't read. Mbeva zhinji hadzina mashe, many cooks spoil the broth.

Creating another level above the Metropolitan and Provincial Chairperson is going back to the traditional hierarchy which we are running away from because of its many disadvantages which we laid out in the document titled Devolution of administration and financial power which we have also attached. We have also attached documents titled

i. Achieving equity, unity and progress at Ward level
ii. Devolution of administration and financial power at national, Metropolitan and Provincial and Ward level.
iii. Achieving equity ,unity and progress at Metropolitan and Provincial level
iv. Constitutional amendments

If Cabinet decides to continue with the appointment of the Minister for provincial affairs one thing for certain is that he should not be involved in the operation activities of Metropolitan and Provincial councils and he should only interact with the Metropolitan and Provincial Chairperson. Section 270 clearly tells us that operating activities are for Provincial and Metropolitan councils and section.

- Point 14 for autonomy to exist the Metropolitan and Provincial Councils should choose which committees to create as said in section 271 of the Constitution. For Zimbabwe to benefit from devolution and for us to have unity and the indivisibility of Zimbabwe, and for us to have good governance which is effective, transparent and accountable and institutionally coherent as is called for in section 265(1)(a-e) of our constitution the upper tiers of government should not interfere in the lower tier of government's operations.

The Minister should communicate and get everything he needs from the Provincial Chairperson of the Metropolitan and Provincial council that's good governance. Good governance respects all the people within the tiers of governance, no criss -crossing of authority, authority should follow a defined structure up and down.

In conclusion we say Parliament should without delay seek the assistance of an Auditing firm in coming up with the Acts of Parliament decreed in the Constitution starting with Chapter 14, 17 and 16. Doing so will enable us to finalise devolution at National, Provincial and Metropolitan and Ward level in record time(by December 2019) and in turn alleviate the suffering of the people.



Source - Gabriela Victorious
All articles and letters published on Bulawayo24 have been independently written by members of Bulawayo24's community. The views of users published on Bulawayo24 are therefore their own and do not necessarily represent the views of Bulawayo24. Bulawayo24 editors also reserve the right to edit or delete any and all comments received.

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