By Byron Mutingwende
Corruption is rampant in the land governance system in Zimbabwe and is most pronounced in the urban areas where there is a housing backlog and high demand for land among the growing population, the Advocacy and Legal Advice Centre (ALAC) has said.
ALAC – a unit under Transparency International Zimbabwe (TIZ) said that land barons were taking advantage of the situation that is characterized by corruption and impunity, partisan politics and lack of institutional monitoring.
The sentiments came after the Combined Harare Residents` Association (CHRA) recently hosted a policy dialogue forum to discuss the implications of the recently promulgated Local Government Laws Amendment Act on city governance and service delivery. CHRA Chairperson, Simbarashe Moyo said that the provisions of the Act do not comply with the Constitution in that it does not provide for the devolution of power as prescribed by section 264 of the Constitution.
Irene Zindi, the Chairperson of the Parliamentary Portfolio Committee on Local Government reflected on the role of Parliament in the law making process.
“The main reason for the promulgation of the Act was the rampant corruption which persists in local government as extensively reported in the press. An example of this corruption is the emergence of land barons,” Zindi said.
The lawmaker gave the example of Chitungwiza where councilors discovered that land barons had set up a parallel town planning structure.
“The scrapping of council debts in 2013 has left the local councils worse off with regards to service delivery as a result of the loss of revenue. Internal squabbles at ZINWA are making it difficult for local authorities to provide water to residents.”
Citizens were encouraged to exercise their constitutional right to petition Parliament in terms of Section 149 of the Constitution. The petition would be handed to the speaker of Parliament, who will then bring it to the attention of the Executive. Citizens have the right to make recommendations of what they want to see in the Act.
Harare Mayor Bernard Manyenyeni said that partisan politics was affecting his ability to execute his duties effectively.
“Most of the time the ruling party opposes me simply because I am from the opposition MDC party. Factionalism in Zanu PF is also negatively affecting service delivery and city governance. City officials are selected on grounds of nepotism and cronyism.
The Act should not have seen the light of day since ZANU (PF) is failing to introduce devolution of governmental powers and responsibilities in terms of section 264. The city should be moving towards devolution, decentralization and autonomy as directed in the constitution, but the Act is designed to frustrate these principles,” Manyenyeni said.
In his view, the procedure for the appointment of the town clerk is the most transparent since 1980.
“The government directive that applications to vacancies be in printed form as opposed to email is not only cumbersome but makes the process more susceptible to corruption and yet we are supposed to be promoting the culture of the ease of doing business.”
The Director of Urban Local Authorities, Erica Jones, had the task of unpacking the Act and discussing the key provisions on city governance.
The rationale for the Act is on Section 278(2) of the Constitution, which states that an act of parliament must provide for the establishment of an independent tribunal to exercise the function of removing members of local authorities from office on the grounds set out therein.
The Rural District Councils and the Urban Councils Acts (as amended) set out the procedures for the suspension and removal of councillors from office; and the appointment and procedure for independent tribunals.
“There are only two penalties that can be imposed when a councillor is found guilty of an offence; either dismissal or reappointment. The benefits of the Act to local governance are – that councillors can now be dismissed and be prevented from completing their five-year term in office if they are found guilty of an offence. This heavy penalty will be a deterrent and will repel councillors from errant behaviour while in office. Any person aggrieved by the proceedings or decision of the tribunal has the right to appeal or apply for review to the High Court, which provision will ensure transparency. The Act contains checks and balances to counter corruption and the effects of partisan politics,” Jones said.
Tendai Biti gave an analysis of the constitutionality and legality of the Act. His role was to highlight the strengths, gaps, opportunities and threats presented by the Act and to make recommendations.
Biti dismissed the Act as an “atrocious piece of legislation” that should not have seen the light of day.
“The entire act should be measured against section 265 of the Constitution, which sets out the general principles of provincial and local government. The Act ignored principle of devolution provided for in section 264 of the constitution in that power is still with central government and the Minister of local government. This in violation of section 324 of Constitution, which directs that all Constitutional obligations must be performed diligently and without delay,” Biti said.
He added that there little time devoted to seek public opinion before enactment of legislation.
“The Urban Councils and Rural District Councils Acts (as amended) now provide that members of local authorities are suspended first, after which an investigation into the alleged offence is then conducted. That is unconstitutional as it infringes on the officials’ right to fair administrative action entrenched in section 68.”
Biti said that the Principle of audi alteram partem requires that investigations into alleged offence must be undertaken prior to suspension and the official must be given the opportunity to provide their defence before any punitive action is taken.
“It is problematic that the Act does not specify the manner in which investigations into alleged offences are to be carried out. Moreover, there is no clarity on who has the authority to appoint the investigators and what their terms of reference are.”
As recommendations he said that the procedure for appointing investigating officers must be similar to that provided for an independent tribunal. He suggested that an independent committee must consist of members from standing institutions like the Law Society and the Office of the Auditor-General.
He also suggested that the final determination on whether an official is guilty of offence or not must be made by a judge and not by the minister. The judiciary must be involved in order to avoid partisan determinations.
Biti reiterated that the Urban Councils Act must be repealed since it allows unelected officials to run councils. He called for its harmonisation with international standards like devolution as in Rwanda.
He said that Zimbabwe should have organisations similar to the Southern Africa Litigation Centre (SALC) in South Africa to focus on constitutional compliance.
Honourable Mawondera, who is a member of the Parliamentary Legal Committee said that there was pressure to fast-track the bill and some councillors did not have any knowledge of the bill during the enactment stage, but were merely given directive to approve it from their relevant political parties.
“Some members of parliament therefore simply rubber stamped it. The public hearings were merely a window dressing exercise because the views expressed by the citizens during the public hearings did not find their way into the Act. There is evidence that the act in its current state does not reflect their wishes.”
Phillip Muziri from the Souther African Parliamentary Support Trust (SAPST) said that the legislative authority in Zimbabwe is derived from the people and is vested in and exercised by the legislature.
He bemoaned the fact that Parliament is under resourced and said that there are various mechanisms for public interface with Parliament, namely, public hearings, petitions, advocacy, litigation and publications such as the Government Gazette.