Unpacking the Kariba Draft Constitution for Zimbabwe from a Local Government perspective: Part One
The Kariba Draft Constitution has been criticized by many stakeholders to the current constitution making process. Various critics of this draft, including civic society organizations, have rightly pointed out that the draft was constructed secretly, without the participation of the ordinary citizens of Zimbabwe. For the record, this draft was constructed by representatives from the 3 main political parties in Zimbabwe namely the two formations of the Movement for Democratic Change (MDC) and the Zimbabwe African National Unity Patriotic Front (ZANU PF). The MDC and ZANU PF do not necessarily represent allthe people of Zimbabwe; and neither are they the only political parties in Zimbabwe. Vicious criticism of the Kariba Draft constitution arose after President Robert Mugabe and ZANU PF leadership declared that the constitution making process must be based on the Kariba Draft constitution provisions. On the other hand, the co chairpersons of the Parliamentary Select Committee on the constitution making process and the MDC formations’ leaderships have declared that the constitution making process will consider all the other previous drafts as basis for the new people driven constitution for Zimbabwe. Article 6 of the Global Political Agreement (GPA) signed by MDCs and ZANU PF, which gave birth to the current coalition government, acknowledges the Kariba draft constitution and signed. Whether the GPA excludes other drafts from the process is a matter of interpretation and debate, but that the Kariba draft is mentioned in the GPA and its acknowledgement without clarity, has raised a lot of anxiety in the crafting of the people driven constitution as highlighted “determined to create conditions for our people to write a constitution for themselves…” Art 6.
Very few people and a number of civil society organizations have analyzed and rejected the Kariba draft on the basis of content. This article acknowledges tremendous efforts to unpack the content of the Kariba draft, made by the Combined Harare Residents Associations (coordinating the efforts of the National Residents Associations Consultative Forum), National Constitution Assembly (NCA), Women’s Coalition, Crisis in Zimbabwe Coalition, the Zimbabwe Lawyers for Human Rights (ZLHR) as well as the Zimbabwe Human Rights NGO Forum, among others. Many people and civil society organizations have rightly dismissed this draft on the basis of the non consultative procedure by which it was made and the fact that it was drafted by politicians alone as a political settlement. This is reminiscent of the Lancaster Agreement rationale – truce. It has become apparently clear that the current constitution making process will definitely be based on this Kariba draft as it is part of the Amendment No 19, with appreciation of the mandate given to the Parliamentary Select Committee and its inherent flaws. Whether other drafts like the 1999 Constitutional Commission draft and the National Constitution Assembly draft will also be considered on equal footing is another issue that remains debatable. The ordinary citizens of Zimbabwe would have wanted the constitution making process to be premised on all these drafts and incorporate other views from the constitutions of other countries. Besides, it is one of the fundamental principles of constitutionalism and constitution making process that the consultations must be as wide as possible. Whichever way this constitution making process will be conducted, it is feared that this Kariba draft will definitely be an important factor if not the most important draft. It then becomes apparently imperative that academics and civic society movements also focus on analyzing the content of this draft for public consumption. It is within this context and background that this article unpacks the Kariba Draft constitution from a local government perspective. This article examines how the local government provisions set out in this draft create a democratic local governance framework that can lead to good governance in all the spheres of Government. The writers of this article are researchers and consultants in Local Governance and lead a civic society movement that lobbies for a democratic and transparent local government system in Zimbabwe.
The Kariba Draft Constitution provides for Local Government through Chapter 16. Part 1 of Chapter 16 mentions the 3 tiers of Government namely the National Government, Provincial Councils and the Local Authorities. It also defines and lists “principles of Local Government” and the “Local Government finances”. Part 2 of the same chapter lists the Provinces, describes Provincial Councils, Provincial Governors and their functions. Part 3 of the same Chapter provides for “Local Authorities for Urban and Rural Areas” and their functions and how they are constituted. Traditional leaders are provided for separately in Chapter 16. In terms of unpacking the Kariba draft constitution; this article will focus on each of the above mentioned sub sections as they are provided for in the draft constitution. This week, attention will be paid to the general manner in which Local Government is provided for as well as the manner in which the principles of Local Government as set out in Section 242 (a-h). The article for next week will suggest a framework (structure, powers and duties).
General manner in which the Local Government is set out through chapter 16
The Kariba draft constitution broadly acknowledges local government through Section 241.C.(i) and (ii) and 242 (d). However, the draft should also go beyond just providing for principles and finances only; but also set out the structure and powers of the Local Spheres of Government. In accordance with the principles of democratic and good governance, an ideal Local Government structure would provide for the Executive (led by the Mayor) and the Legislature (composed of the councilors). After setting out the structure of the Local Authorities, the constitution should provide for executive and legislative powers. Executive powers would entail the mandate to formulate and implement policies for the development of and service provision for the local authorities; while the legislative mandate entails the power to enact by laws. The constitution must also define policy areas that the Local Authorities have power to legislate and execute on. Such areas may be distinguished from those that are exclusive to the Provincial and National Government. This is critical as a way of avoiding clashes and confusion between the powers, functions and duties of the Local Authorities and the Provincial Governments. Constitutional mechanisms for regulating the relationship between the three spheres of Government may be put in place. This speaks to issues of devolution and decentralization, and the need to have clear mandates, powers and autonomy in planning and development as well as leverage and extent to levy taxies across the three levels and ensure fiscal viability and minimal taxation on the people. This indeed is a debate worth exploring in a separate or subsequent discussion.
The Kariba draft Principles of Local Government
To begin with, the principles of local government are vaguely defined. For instance S 242 (b) which says “Provincial councils and local authorities must be given as much autonomy as compatible with good governance” can really be problematic when it comes to its interpretation. According to 242 (b), the level of autonomy provided to local authorities will be qualified by the principles of good governance. Good governance is a wide concept that carries various meanings, so much that this provision will be vulnerable to abuse by the Central Government. It appears this provision seeks to give Local Authorities autonomy from the central government. It could do this better by clearly providing for such autonomy and then set out a mechanism through which the central government may intervene or interface with the operations of the local authorities, including nullification of local authorities’ decisions or council resolutions. One mechanism would be to direct that such autonomy will be exercised in so far as the Local Authorities do not pursue policies that are contrary to the letter and spirit of the constitution, national legislation or national policy. This assumes that the constitution will be the supreme law (constitutional supremacy) and will be premised on principles and values of participatory democracy. It will then follow that any national legislation or policy will itself need to conform to such a constitution for it to be valid and prevail over the decision of the Local Authorities. Thus the autonomy of the Local authorities and Provincial councils will only be limited by the constitution, national legislation and policy; and for the central government to suspend such authority, they should be a constitutional requirement to demonstrate such conflict. As a regulatory mechanism for such autonomy, the same provision can further direct that the central government will only interfere with such autonomy through a High court order; after conducting negotiations with the Local Authority in question. Autonomous Local Government system is critical as it protects Local Authorities from partisan political interference by the Central Government. However such autonomy need to be regulated, but that cannot be done by the very same arm (central government) against whose interference the same provision intends to protect the Local Authorities.
The principles of Local Government as set out in Section 242 (a-h) are haphazard and inadequate if analyzed from a Good governance perspective. They are vague and inadequate so much that they can not provide a basis for good governance in the Local Authorities. The inherent ambiguity is a major cause for concern given the recent past experiences in local government administration. Basically, and in a lay person’s language, good governance is a concept that entails the exercise of authority in a manner that is participatory, transparent, accountable, effective and efficient. The following could be a set of principles of Local Governance; that can provide a firm constitutional basis for the establishment and proper functioning of a democratic local government framework for Zimbabwe;
Only democratically elected councilors must run the affairs of the Local Authorities. National legislation that regulates and provides for the establishment of Local Authorities, Local Government elections, appointment of special interests councilors and the administration (including the recruitment and dismissal of senior council workers) of such Local Authorities will be enacted.
Local Authorities shall function on the basis of residents’ consultation and participation. National legislation shall be enacted that provides for mechanisms for residents’ participation in Local Authorities decision making processes. Such legislation will also provide mechanisms through which residents and other stakeholders can demand such participation, transparency and accountability. The same legislation will provide the residents with the right of recall, as a mechanism of demanding accountability.
Local Authorities shall be administered and function in a manner that is transparent and accountable to the residents and other stakeholders.
Local Authorities will operate in a manner that is autonomous; subject to the constitution, national legislation and national policy.
In their functions, Local Authorities shall ensure the growth and enhancement of cooperation with the National Government.
Local Authorities shall provide quality and affordable services to the residents without discriminating on any basis including geographical location, political affiliation, race and gender.
Local Authorities shall ensure equal and equitable distribution of public revenue and other resources.
The next article will suggest a local government framework premised on the above suggested principles. Such a framework will consist of the structure of Local Government, powers and functions of each arm that exists within such a structure, interaction between such arms. The framework will also define the role that Traditional Chiefs or Indigenous Chiefs will play in local government. Given space and time, it is our intention to look at other interesting drafts that espouse these tiers or spheres of government, namely the National Constitutional Assembly and the Constitutional Commission drafts, among others. Ultimately, we will expose on the local government reforms as defined by the residents in the various parts of the country we have interacted with on this critical subject. Article co-authored by Farai Barnabas Mangodza (Chief Executive Officer; Combined Harare Residents Association BA Honors Rel. Stud. and Dip in Philosophy) firstname.lastname@example.org, email@example.com, and Justice Alfred Mavedzenge (Programmes Manager; Combined Harare Residents Association, BA African Languages & Culture, Certificate in Good Governance ( University of Pretoria), LLB Final year student with UNISA; firstname.lastname@example.org; +263912 653 074 or +2783 996 6296).