Challenges to Urban Democratic Governance in Zimbabwe : The Case of the Appointment of Special Interest Councillors in Urban Local Councils [1 ed.] 9781443863186, 9781443853569

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Challenges to Urban Democratic Governance in Zimbabwe

Challenges to Urban Democratic Governance in Zimbabwe: The Case of the Appointment of Special Interest Councillors in Urban Local Councils

By

Jephias Mapuva

Challenges to Urban Democratic Governance in Zimbabwe: The Case of the Appointment of Special Interest Councillors in Urban Local Councils, by Jephias Mapuva This book first published 2014 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2014 by Jephias Mapuva All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-5356-9, ISBN (13): 978-1-4438-5356-9

The dedication to the Almighty God surpasses whatever dedication is contained in this book. I also dedicate this piece of work to my late father, Josiah Mapuva, my mother Sarah Mapuva, my Wife Loveness Muyengwa-Mapuva, my children and siblings. To King Emmanuel Ȇ, I once again say this is the book that you have always been talking about. I also want to dedicate the book to all those who work towards the creation of improved service delivery in urban areas in the country, in particular and in Africa and the globe.

TABLE OF CONTENTS

Acknowledgements .................................................................................... ix List of Acronyms ........................................................................................ xi Executive Summary.................................................................................. xiii Preamble .................................................................................................... xv Chapter Outlines ...................................................................................... xvii Chapter One ................................................................................................. 1 Introduction Chapter Two ................................................................................................ 9 Local Governance: A General Overview Chapter Three ............................................................................................ 57 Local Government in Zimbabwe and the Appointment of Special Interest Councillors Chapter Four .............................................................................................. 79 Comparing the Appointment of Special Interest Councillors against Normative Frameworks and the Copac Constitution Chapter Five .............................................................................................. 97 Conclusion and Recommendations References ............................................................................................... 107

ACKNOWLEDGEMENTS

The compilation and subsequent submission of such an intensive research document would not have been the effort of one person. First and foremost, I acknowledge the hand of God in the final completion of this compilation. Additionally, a number of people and institutions contributed to the successful completion of this document. It is the intention of the author to acknowledge their contributions. I acknowledge the role played by Professor Jacobus De Visser of the Faculty of Law at the University of the Western Cape in the compilation of the content of this manuscript. This was part of my Mini-thesis in which Professor De Visser supervised the study to its completion. I would like to thank Professor Jacobus De Visser for his patience, resilience and scholarly advice towards this work. To him I say please keep up the good spirit with which you dealt with my study area Special thanks and appreciation go to the Community Law Centre of the University of the Western Cape (South Africa) for having provided a conducive working, research and study environment without which this compilation would have seen the light of day. Of note are the contributions made by Mrs Virginia Makanza of the Midlands State University’s Department of Local Governance (Zimbabwe) whose contribution in the collection of data on special interest councillors in 20 urban councils could not have been achieved without her contribution. To her I say many thanks and hope you keep that good spirit of collegiality. A colleague, Tyanai Masiya at the School of Government’s African Centre for Citizenship and Democracy [ACCEDE] (University of the Western Cape) as well as my wife Loveness Muyengwa-Mapuva of the Faculty of Law at the University of the Western Cape, also deserve special mention for having contributed towards this book during both formal and informal discussions. I also acknowledge the contributions of various staff members and researchers at the Faculty of Law’s Community Law Centre for having provided input during regular seminars at the Centre. To all the above and others who might have contributed directly and/or indirectly, I say thank you and may God provide you with abundant grace.

LIST OF ACRONYMS

ACDEG AMCOD BSAC CHRA COPAC CPPDT GNU GPA IULA MDC MISA MLGRUD UCA UCLG UDHR UGI ULCGA UNESCAP ZANU PF ZEA ZEC

African Union Charter on Democracy, Elections and Governance African Ministerial Conference on Democracy British South Africa Company Combined Harare Residents Association Zimbabwe Parliamentary Select Committee Charter for Popular Participation in Development and Transformation Government of National Unity Global Political Agreement International United Local Authorities Movement for Democratic Change Media Institute for Southern Africa Minister of Local Government, Rural and Urban Development Urban Councils’ Act United Cities and Local Government Universal Declaration of Human Rights Urban Governance Index United Cities and Local Governments of Africa United Nations Economic Commission for Asia and the Pacific Zimbabwe African Union Patriotic Front Zimbabwe Electoral Act Zimbabwe Electoral Commission

EXECUTIVE SUMMARY

Local government is the nearest sphere of government to local communities and as such is very important as a conduit through which national/central government implements policies and provides services to communities. Given that central government cannot directly administer all communities, it utilizes local authorities as a conduit to reach out to individual communities. Such local authorities are manned by elected and appointed officials. These officials include technocrats whose expertise in the interpretation of statues and bylaws is necessary in the administration of local authorities as they seek to enhance service delivery to local communities. In addition to technocrats, there are those officials who are elected by the local people to represent local community interests in councils. The existence of elected officials (herein called ‘councillors’) enables local communities to keep informed of events in local councils and to participate in the business of local councils. The existence of such elected councillors is common in both federal and unitary local government systems. However, the relationship between central government and local government is different in federal and unitary systems of government. Federal and unitary governments have different forms of local authorities and the devolution of powers is more visible in federal governments than in unitary governments. In unitary forms of government, central government seeks to usurp and amass or even retain most decisionmaking powers of local authorities while in federal forms of governments, central government spreads decision-making powers to regions or provinces and only retains important portfolios, such as those pertaining to national security, which cannot be handled at local or regional levels. Although the relationship between central government and local government is different in federal and unitary systems of government, the major functions of local government in either of the two systems of government remain that of implementing central government policies. However, the difference is in the level of community participation. Although it might seem as though the administration of local councils is a straight forward practice, it is inundated by a myriad of challenges ranging from the politicization of local governance in favour of the ruling elites, lack or little consultation of local communities in decision-making processes, and the visible hand of central government in the affairs of local

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Executive Summary

councils. The major challenges to local government in Africa have remained that of political interference by the ruling elites, as well as the scarcity of resources with which to deliver good quality services to local communities. This has resulted in the disintegration of local government structures in most urban areas, and the near destitution of residents in sprawling informal settlements as local authorities fail to meet the demand for housing as a result of increased urbanization. As in most African countries with unitary systems of central government, local government has had its own share of challenges. The most notable of Zimbabwe’s challenges in local governance has been the acutely partisan nature of local governance, manifesting itself in the plethora of legislation that determines local governance. With the Minister responsible for local government wielding enormous executive powers, there has been a notable disruption of operations in most local councils as the Minister has sought to settle political scores with locally elected councillors. With the advent of a new amendment to the Urban Councils Act (2008) – section 4A, the Minister has been empowered to appoint special interest councillors which, I argue, is a waste of resources and ratepayers’ hard-earned money. Local governance bench marks and best practice have, as shown by the legislative instruments discussed in this book, proved that the appointment of special interest councillors is not only unnecessary, but is not consistent with democratic urban governance.

PREAMBLE

Through this book, the author seeks to establish the extent to which local government in Zimbabwe has lived up to its general mandate: that of promoting local democracy through community participation in local governance processes. It is generally acknowledged that through local government structures, central government and local communities interact at the same level. But most importantly, local government should provide a conduit through which local communities can influence public policy formulation and implementation. As such, this book seeks to establish whether through legislation central government has been able to create an enabling environment for local communities to influence policy. A plethora of local government, as well as international and regional, legislative instruments have shown that Zimbabwe has lived up to the common trends in unitary state systems: central government hordes power, with no trickle-down effect to local communities. The nature of local government legislation seems to confirm the fact that the Minister of Local Government is not a servant of the people but is some kind of colossal demagogue, lording it over local governance and thereby defeating the essence of the institution of local government. To put theory into practice, the author embarks on an expansive exploration of 20 urban local councils in Zimbabwe to establish the extent to which legislation and the practice of democratic urban governance is realized. In this regard, the author explores one piece of local government legislation, namely section 4A of the Urban Councils Act (2008) which empowers the Minister of Local Government, Rural and Urban Development (MLGRUD) to make additional appointments of ‘special interest’ councillors to all urban local councils. The appointees are ‘special’ in that they are personally accountable to the person of the Minister and, I suggest, ‘dance to his tune’. In exploring the different legislative instruments on democratic governance, the author looks at to whom the appointees are expected to be accountable, the place of local communities in the appointment process and whether the appointments bring any added value to service delivery to the local communities. The practice of appointing special interest councillors does not resonate with democratic local governance, especially given that the local communities that should ideally benefit from the activities of the appointed incumbents

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Preamble

are not consulted at all, nor is their participation in the process of making the appointment guaranteed or sought. However, one cannot necessarily judge the level of democracy (or lack of it) in such appointments. Therefore, the author explores the provisions and dictates of various international and regional legislative instruments to come up with a normative framework on democratic and representative urban governance. These legislative instruments enable the author to establish whether local government law and practice in the case of the appointment of special interest councillors complies or resonates with the democratic benchmarks and the best practices of democratic urban governance.

CHAPTER OUTLINES

This book is made up of five chapters. Chapter one provides a general overview of local government in federal and unitary states and compares local governance in the two systems of government. Chapter two provides the key aspects contained in the book, notably the controversy emanating from the appointment of special interest councillors as well as public reaction to such appointments. In addition, the chapter presents the methodology for establishing the extent to which the practice of appointing special interest councillors complies with democratic urban governance. Chapter three provides a normative framework for local democratic and representative governance. This chapter explores and analyses selected legislative and regulatory frameworks that provide for representative democratic governance. From the cited frameworks and instruments, the author extrapolates elements of representative governance. In addition, from the Constitutional Parliamentary Committee (COPAC) Constitution, the author will extrapolate critical features of democratic local governance. The normative frameworks for best practices and benchmarks in representative governance will be drawn from the Universal Declaration of Human Rights (UDHR), UN-Habitat-Urban Governance Index; European Charter of Local Self-Government; African Charter on Human and Peoples’ Rights; United Cities and Local Government of Africa model; the Kigali Declaration; and the Victoria Falls Declaration. Chapter four provides a discussion of local government structures and institutions in Zimbabwe and the appointment of special interest councillors. The legal framework and policy rationale of appointing special interest councillors in urban councils by the MLGRUD provides the focus for this chapter. The chapter begins by presenting the history of local government in Zimbabwe and characteristics and compositions of local government institutions in the country. The author then presents a brief discussion of the genesis of the appointment of special interest councillors. The discussion focuses on the practice of appointing special interest councillors in the country’s local government institutions, a practice which had initially started in rural councils in terms of section 60 of the District and Rural Councils Act and was later adopted in urban

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Chapter Outlines

councils through the enactment of section 4A of the Urban Councils’ Act of 2008. The thrust will then be directed to the content of section 4A of the Urban Councils Act, highlighting the role of the Minister in appointing special interest councillors and the accountability structure of the provision. Chapter four involves a comparative discussion of the practice of appointing special interest councillors and the representative democratic normative framework drawn from international instruments and the COPAC Constitution. In this chapter the author tests section 4A of the Urban Councils Act (UCA) against elements of representative democratic local governance drawn from the COPAC Constitution as well as from international instruments. The focus is on the ways in which ministerial powers appoint special interest councillors and whether such appointments are acceptable practice in a representative democracy and, in addition, what impact this practice has on service delivery and local councils’ decision-making processes. This chapter tests and compares the provisions of section 4A of the UCA to the critical features of representative democratic local governance drawn from the COPAC Constitution and other international and regional instruments. Chapter five provides a conclusion based on the comparative analysis of section 4A of the UCA against international instruments and the COPAC Constitution. The comparative analysis will seek to test the extent to which section 4A of the UCA complies with elements of representative democracy drawn from international instruments and the COPAC Constitution. In highlighting the shortfalls of section 4A of the UCA and local governance elements of COPAC, I try to indicate how this document might be bettered with a view to improving the structures and institutions of local governance. Recommendations on how to improve the Zimbabwean local government system and enhance urban democratic governance are presented after identifying gaps in the implementation of section 4A of the Urban Councils Act of 2008.

CHAPTER ONE INTRODUCTION

This book traces the root cause of the controversial issue of appointing special interest councillors in urban areas at a time when poverty levels had risen sharply among the urban population, in part, as a consequence of the appalling state of public services. The appointment of special interest councillors has been viewed as presenting an additional financial burden as it is from the local councils’ coffers that such appointees are paid. This explains the reason why the appointment of such councillors has encountered a lot of resistance, especially among urban residents who have expressed the view that elected councillors are sufficient to deal with the needs of local communities and that Ministers therefore do not need to add unelected councillors, particularly against a backdrop of dwindling financial resources that exists in most urban councils. In addition, the issue of appointing special interest councillors came at a time when the fight for dominance of urban local councils had reached fever pitch as different political parties, especially ZANU PF and the MDC-T, tussled for political hegemony in urban areas where the vote is used as a barometer to determine a political party’s popularity. As a result, cut-throat competition and contestation for the dominance of urban councils has ensued, resulting in the enactment of section 4A of the Urban Councils’ Act which enabled the MLGRUD to make additional appointments in all local councils, both in urban and rural areas. This book looks at the impact of the appointment of such councillors in urban areas where the electorate in particular and the residents in general have contested such appointments. To be able to establish the essence behind the appointment of such councillors and to prove or disprove the notion that such councillors have been used by the MLGRUD as a political ploy to increase the number of ZANU PF councillors in most urban councils, the author undertook a survey of 20 urban councils. The objectives of the survey of the 20 urban councils were to establish the composition of the appointees, the expertise or skills that each appointee would bring to the local council, and whether the practice of appointing special interest councillors, especially in urban areas, has

2

Chapter One

been used to democratize local governance by incorporating more than one political party.

Appointment of Special Interest Councillors in Zimbabwe and the Democratic Discourse Democratic discourse and practice entails among other things the election of political leaders through regular elections, transparency in the implementation of policy, responsiveness on the part of political leaders and institutions, the existence of the rule of law, inclusiveness as well as accountability to the electorate/communities/residents (Raftopoulos, 2009; Makumbe, 2010; Sachikonye, 2011; Masunungure, 2010). It is on this basis that the law and practice of appointing special interest councillors is viewed. The appointment of special interest councillors in terms of section 4A of the Urban Councils Act has encountered much opposition from residents in many urban areas.1 These appointments have also attracted public attention, especially in the media which has highlighted the plight of urban councils, most of which have failed to contend with additional unelected personnel on their payrolls. There has also been a claim that the process of appointing special interest councillors may be or is being abused.2 What has further exacerbated this situation is the fact that there is no legal provision to check the powers of the Minister, leaving room for the manipulation of the powers to appoint.3Since the enactment of section 4A of the Urban Councils Act (UCA) in April 2008, numerous elected councillors and mayors belonging to the MDC-T have been dismissed, or summarily suspended pending dismissal so as to justify the appointment of special interest councillors over and above elected councillors. One case of simmering discontent and disagreements between residents and the MLGRUD is cited in a media article, entitled Special interest councillors dismissed, 4 which highlights the fact that such appointments have the propensity to create anarchy and despondency in some localities. The dismissal and suspension of MDC-T (the MDC faction led by Mr Morgan 1

Sibanda A ‘Bulawayo residents and Chombo to clash over special interest councillors’ Bulawayo24, 16 May 2012. 2 Harare Residents Trust. ‘Chitungwiza Residents raise concerns with Minister Chombo’ SW Africa Radio, 13 February 2012. 3 ‘Bulawayo: Chombo tries (again) to impose “Special Interest Councillors”’ Zimbabwe Metro 24 April 2012. 4 Ndlovu N ‘Zimbabwe: Special Interest Councillors Dismissed’ The Standard, 14 April 2012.

Introduction

3

Tsvangirai) councillors and mayors and the dissolving of urban councils have led to allegations that the Minister seeks to weaken MDC power in urban local councils through the of special interest councillors. By highlighting and examining the implications of these appointments on urban governance and the general functioning of urban local councils, the author will critically evaluate the seemingly undemocratic practice of appointing special interest councillors in Zimbabwe.

Significance of the Problem of Appointing Special Interest Councillors This section explains the significance of the controversy surrounding the appointment of special interest councillors in urban councils as cited above. Most urban local councils argue that the appointment of special interest councillors has become a financial burden on the councils’ fiscus, since the appointees are paid by the councils that appoint them.5 The print media has also highlighted the controversy of the appointment of special interest councillors in terms of section 4A of the Urban Councils Act. A cross section of media reports has presented the appointment of special interest councillors as a controversial practice that has led to the deterioration of relations between the MLGRUD and most urban councils6 as well as between residents and the MLGRUD.7 Both residents and elected councillors have been angered by the fact that while many elected councillors have either been suspended and/or dismissed,8 no such action has been taken against appointed special interest councillors. The media reports have also noted that most local councils view the appointment of such councillors by the MLGRUD as an abuse of power by the Minister, with some threatening to take legal action9. Other media reports have

5

S 4A (2), Urban Councils’ Act (2008). “Chombo Risks Lawsuit” in Zimbabwe Daily News, May 23, 2010; CHRA, 2012 ‘Brian James Suspension Exposes Urgent Need for Local Government Reform!’. 7 Sibanda A ‘Bulawayo residents and Chombo to clash over special interest councillors’ Bulawayo24, 19 May 2012. 8 Chombo has of January 2012 suspended a total of four MDC councillors in Harare for corruption: five in Rusape; one in Nyaminyami Rural District Council; two in Zvimba Rural District Council; and two in Harare Municipality, Councillors Warship Dumba and Casper Takura who opened a council probe on the minister regarding the way in which he had acquired so many properties in Harare, Brian James becomes the latest victim. 9 Staff Reporter ‘Chombo Risks Lawsuit’ in Zimbabwe Daily News, 23 May 2010. 6

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Chapter One

expressed the view that the Minister’s powers should be reduced.10 Precious Shumba of the Harare Residents’ Trust has acknowledged that while special interest councillors may help to enrich debates in local councils, these should be appointed with the concurrence of local residents. In addition, Precious Shumba has also noted that currently special interest councillors are a liability to most local councils, most of which do not have adequate financial resources to accommodate such appointments.11 The Combined Harare Residents’ Association (CHRA) has expressed the need for local government reforms12 as a way of strengthening local democracy, while the Harare Residents’ Trust has equally expressed concerns with the way the Minister has been making these appointments.13All the media reports have expressed criticism of ministerial powers to appoint special interest councillors, with the Media Institute of Southern Africa (MISA) suggesting that the Minister’s ‘wings be clipped’.14 The overarching objective of this book seeks to provide a critical analysis of such appointments, given that most media reports have gone as far as expressing opposition to such appointments without providing a critical analysis of the practice.

Guiding Questions and Objectives of the Exploration In the exploration of legislation governing the appointment of special interest councillors, the author questions the criteria employed by the MLGRUD to make such appointments for urban areas and the implication of such appointments on local democracy. A survey of international and comparative legislative and regulatory frameworks as well as the Zimbabwe Parliamentary Select Committee Constitution (herein COPAC Constitution) will be undertaken to establish the democratic elements of local governance. From the normative framework, the author extrapolates elements of representative democratic local governance that will be used to establish the extent to which section 4A of the Urban Councils Act 10

MISA “Residents wants Chombo's powers clipped” Human Rights – The Zimbabwean, 18 September 2010. 11 Shumba P ‘Special Interest councillors ideal but not necessary’ SW Africa Radio, 17 SW Africa Radio, 26 March 2012. 12 CHRA ‘Brian James Suspension Exposes Urgent Need for Local Government Reform!’. 13 Harare Residents Trust. ‘Chitungwiza Residents raise concerns with Minister Chombo’ SW Africa Radio, 13 February 2012. 14 MISA ‘Residents wants Chombo's powers clipped’ The Zimbabwean, 18 September 2010.

Introduction

5

complies with international best practices and the local governance provisions of the COPAC Constitution. The COPAC Constitution was instituted as a result of inter-political party deliberations and public consultations on a new constitution for Zimbabwe to replace the Lancaster House Constitution of 1979. As a result, the author intends to establish the extent to which the COPAC Constitution provides for representative local governance. Subsequently, the author investigates the extent to which the appointment of special interest councillors under section 4A of the Urban Councils Act complies with the principles of representative democracy as set out by various international instruments, as well as the COPAC Constitution15. As such, the author seeks to: (i) Extrapolate elements of representative governance from selected international and regional instruments as well as from the COPAC Constitution. (ii) Assess the impact of the appointment of special interest councillors on the relationship between local authorities, residents and central government. (iii) Test the extent to which the appointment of special interest councillors under section 4A encroaches on local democracy. (iv) Test the practice of appointing special interest councillors under section 4A against international standards and COPAC Constitution provisions on representative governance. (v) Provide recommendations for improving local democracy in local councils.

Raging Debates about Appointment of Councillors Literature on federal and unitary state systems and the forms of local government structures expected in them has been explored above. However, the gap in the literature on the two state systems exists in relation to the role of central government, specifically regarding the 15

S 14 of the COPAC draft provides for Provincial, Metropolitan and Local council structures and institutions as well as the election of local council office bearers.

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Chapter One

Minister’s own role in relation to the operations of local councils. It is therefore the purpose of this section of the book to explore the literature or concerns raised by similar studies - on Ministerial power in relation to appointments in local councils, and the extent to which, in making such appointments, the Minister is required to consult with local communities. The book also seeks to establish whether the appointment of councillors by the Minister resonates with representative democracy as provided by existing legislative local governance instruments. While much concern has been expressed in the field about Ministerial powers in the operations of local councils (both in rural and urban areas), there is no critical analysis of the practice of appointing special interest councillors. Most of the people who have written about the appointment of special interest councillors have concentrated on the MLGRUD’s general powers over the affairs of local councillors, without focusing specifically on section 4A of the Urban Councils Act that empowers the Minister to make such appointments. While Chakaipa 16 has written about special interest councillors, the author only mentions these appointed officials in light of electoral processes, as well as the introduction of such a portfolio in urban areas, but does not say anything about the operation or impact of such appointed councillors on urban governance. Additionally, the major part of Chakaipa’s discussion is confined to elected councillors and local government electoral processes. Mushamba17 discusses special interest councillors in relation to the decentralisation of power from central to local authorities but does not discuss their appointment or the role of the Minister in making these appointments. Media houses in Zimbabwe have ‘flip-flopped’ over the issue of the appointment of special interest councillors. Although the Media Institute for Southern Africa (MISA) has argued about the need to amend the Urban Councils Act in order to reduce the powers of the MLGRUD in general, it has not provided a detailed critique of the appointment of special interest councillors per se. Machingauta18 has come closer to addressing the issue of special interest councillors but the author tends to confine himself to “the appointment of 16

Chakaipa S ‘Local government institutions and elections’ in De Visser J; Steytler N & Machingauta N (eds) Local Government Reform in Zimbabwe: A policy dialogue (2010) 31-68. 17 Mushamba S ‘The powers and functions of local government authorities’ De Visser J; Steytler N & Machingauta N (eds) Local Government Reform in Zimbabwe: A policy dialogue (2010) 101-120. 18 Machingauta N A legal analysis of the appointment of caretakers to act as council in terms of Zimbabwe’s section 80 of the Urban Councils Act (unpublished LLM thesis, University of the Western Cape, 2010)

Introduction

7

caretakers to act as councils” in terms of section 80 of the Urban Councils Act of Zimbabwe. Again, Machingauta’s discussion of special interest councillors addresses the broader caretaker framework in which caretakers may be appointed to act as full council in certain circumstances, but does not specifically refer to section 4A of the Urban Councils Act. In her thesis, Madzivanyika19 provides a generic catalogue of legislative weaknesses in the Urban Councils Act that impact on an efficient and effective service delivery. However, the thesis by Madzivanyika does not discuss the issue of special interest councillors in detail, in part because it was not the focus of her study. However, most importantly this book will draw from the recently published Zimbabwe Parliamentary Select Committee (COPAC)20 constitution which passed through the referendum on 16 March 2013, thereby making it the new law for the country. The COPAC Constitution is vital because it is the first attempt by Zimbabwe to incorporate local government into the national constitution. The author will analyse section 14 of the COPAC Constitution which provides for local government structures and institutions as well as the election of local council officials.

Methodology This book is based on both a review of secondary sources, such as legislation and regulatory frameworks to test the compliance of section 4A of the Urban Councils Act, with regards representative governance, as well as a survey of 20 urban local councils. With regards the latter, the author has conducted a relatively random survey of twenty (20) urban local councils to establish the composition of their special interest councillors. The basic criterion that was used to select the councils was that these should be functional urban local councils and that they should have appointed special interest councillors or at least have attempted to impose these appointments on the councils. In order to acquire information on special interest councillors for the selected local councils, the author reviewed documents pertaining to each council, including minutes of local council meetings as well as council websites. 19

Madzivanyika L The impact of weaknesses in the Urban Councils Act on efficient and effective service delivery in urban local councils in Zimbabwe (unpublished LLM Research paper, University of the Western Cape, 2011. 20 The Parliamentary Select Committee (COPAC) is an inter-party committee of parliamentarians that was tasked by the Unity Government in Zimbabwe to make public consultations for a new constitution. The Draft will be taken to a referendum either late 2012 or early 2013 before it can be adopted as the new Constitution of Zimbabwe.

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Chapter One

During the survey, the author sought information, from appointed special interest councillors, in selected local authorities, about their principal expertise. Again, local councils were selected at random, irrespective of their city/town status. From the special interest councillors, the author sought information about the appointees’ relevant working experience as well as their political alignment and gender.

CHAPTER TWO LOCAL GOVERNANCE: A GENERAL OVERVIEW

The central argument of this book is based on the premise that citizens have the right to participate in governance processes within their geographical boundaries, as enshrined in different international and regional instruments. Of more importance in this regard are the provisions of Article 21 of the Universal Declaration of Human and People’s Rights and Article 13 of the African Charter of Human and People’s Rights, both of which concur that: Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law

This same is applied to the practice of appointing special interest councillors in terms of local government legislation, notably section 4A of the Urban Councils Act. Local government is the sphere of government that deals with local affairs and involves elected officials, usually as councillors, in addition to other technocrats appointed on the basis of their expertise in different areas. This is applicable in both federal and unitary state systems. Local government operates under the auspices of national government with the ruling political party dictating the pace and policy framework that is supposed to be implemented. This means that each political party that comes to power ensures that it implements local government policies that benefit that very party. Local government can therefore be used as a political tool to endear political parties to local communities. In an effort to effectively handle communities, national governments subdivide the country into smaller and manageable geographical areas that are easy to manage (Mhlahlo, 2007:109). Hence, Mamadou (1996) has consented that local government is “an administrative body for a small geographic area, such as a city, town, county, or state”.

10

Chapter Two

Relationship between Central Government and Local Government A central government can be defined as the government of a nation-state. Central government is usually more typically a characteristic of a unitary state whose powers reside with the centre and where there is little or no power for local government. In a unitary state, the central government has the power to make laws for the whole country, in contrast with local governments where local councils and communities influence the making of national laws, in addition to making their own laws as in the federal system. The federal form of government may have distinct powers at various levels authorized or delegated to it by its member states, though the adjective 'central' is sometimes used to describe it (Watts, 1990).1 The structure of central governments varies, ranging from quasi-decentralised to totally centralized systems of governance. Many countries have created autonomous regions by delegating powers from the central government to governmental institutions at subnational level, such as a regional, local, or state level. Based on a broad definition of the existing political dispensation in a designated territorial area, there are two or more levels (tiers/spheres) of government that exist within an established territory and govern through common institutions with overlapping or shared powers, as prescribed by a constitution or other law (Madhekeni A & Zhou, 2012). It would be practically impossible for central government to reach out to various parts of the country other than through local government institutions such as rural councils and urban councils. Usually the constitution of the concerned country allows for the demarcation of the country into constituencies or towns/cities and rural sub-divisions which are in turn administered by local councils. A local government will typically only have control over their specific geographical region, and cannot pass or enforce laws that will affect a wider area. Local governments can elect officials, enact legislation to draw and charge taxes and other revenues, and do, on a more restricted scale, many of the things associated with the practices of national government.

Local Governance What should be noted is that local governance is a process and a derivative of local government and entails the involvement of local communities in the management of their own affairs (Watts, 1999:25). Local governance 1

Watts R ‘Comparing Federal Systems’ (2nd ed.) SPC Queen's U (1999) 20-26.

Local Governance: A General Overview

11

involves organisations such as municipalities and city councils that are charged with providing public services in specific localities (be they urban or rural) and are usually controlled by officials who are either chosen, appointed and/or elected in local elections or through other formal means, responding to job advertisements, for example. (Madhekeni A & Zhou, 2012). In some cases, legislation may allow the Minister responsible for local government to appoint officials. One such piece of legislation that empowers the Minister responsible for local government to make appointments to local councils is section 4A of the Zimbabwe Urban Councils’ Act of 2008. This empowers the Minister to appoint special interest councillors to all urban and rural councils in order to sit alongside elected local councillors, with a view to ostensibly enriching debates and deliberations in local councils and thereby apparently adding value to the making of bylaws. However, the new Zimbabwean Constitution adopted in April 2013 does not provide for such appointments and only provides for the election of councillors as well as technocrats recruited on the basis of their expertise.

Major Functions of Local Authorities Through local governance, local authorities implement policies for the provision of services to local communities and, in addition, formulate bylaws that effect the provision of such services. Local authorities are responsible for the provision of an extensive range of public services in a geographical location. In addition to making bylaws and providing services, local authorities promote the interests of local communities in various spheres ranging from and including the social, economic, environmental, recreational and cultural. In federal state systems, local authorities enjoy more autonomy than in unitary state systems where such local authorities operate under the watchful eye of central government and receive instructions from the centre.

Local Government in Federal States As has been indicated above, the operations of local government in federal states is more liberal than in their unitary counterparts, hence they can be regarded as partially self-governing. This is acknowledged by Watts (1999:27) in his definition of a federation. A federation (also a convent in Latin) is a political entity characterized by a union of partially selfgoverning states or regions united by a central (federal) government (Watts, 1999: 26). In a federation, the self-governing status of the component states,

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Chapter Two

as well as the division of power between them and the central government, are, typically, constitutionally entrenched and may not be altered by a unilateral decision taken by a component state (Watt, 1999:26). The governmental or constitutional structure found in a federation is known as federalism and constitutes the very opposite of a unitary state which is characterized by the centralisation of power at the expense of local communities (Hyden, 1992). It was in Germany where the practice of federalism started, with the country itself being constituted of 16 federal states of districts (landers). Similarly, Germany’s neighbour, Austria, is made up of administrative divisions which are characteristic of federal states in which power is devolved to local administrative units, in most cases called ‘local councils’, ‘municipal councils’ or ‘city councils’. This is the system that was inherited by most African states when they attained their political independence. The composition of federal states may vary, with some having multiethnic, multi-lingual and multi-cultural communities while others may be homogenous societies. The complexion of a federal state does not need to meet any ethnic or cultural requirements or criteria. Those federal states that cover vast geographical areas include India, which is multi-ethnic. Multi-ethnic communities may be prone to ethnic violence, a common feature in some federations, which usually results in demands for cession by some ethnic groups. Although sometimes, arguably, despotic, unitary state systems often have some semblance of stability as a result of their mostly homogenous nature. However, on the political front, such states are characterised by an acute centralization of power, often leading to authoritarianism where human rights violations are commonplace. In such systems, local government is more dependent on central government which holds all the power to make decisions. Given that local government is a sphere and an extension of central government, it acts as a conduit through which national policies can be implemented and communities consulted. At the same time, the political ideology of most local government institutions is a manifestation of the desires of the ruling elites whose political survival rests with the local communities which should in principle, therefore, be appeased by local government in order to further reinforce their own position as the ruling elite. Hence, devolution and decentralization are common practices in federal political state systems. On the other hand, in unitary state systems, the local communities are mere recipients of policies made at central government level. There is no community participation in the formulation of these policies and in most cases central government is not wholly aware of what local communities might require for their survival. The World

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Bank (2007) has bemoaned local government policies in unitary state systems for being more consultative than participatory in nature. By this, the World Bank means that local government legislation in unitary states does not oblige central government to incorporate communities in decision-making processes but that the government may consult communities. Below is a more detailed discussion of local governance in a unitary system of government.

Local Government in Unitary States The most prevalent feature of a unitary state is that it usually consists of one centralized political structure in which there is a single tier or sphere of government wielding all or most of the executive authority in order to make and/or reverse decisions. In most cases unitary states may include one or more regions. In the case of Zimbabwe these regions are called ‘provinces’. One major difference between a federal system of government and a unitary system is that, while both political systems have regions or provinces, in a federal state system provinces are autonomous, having no or little recourse to central government, and have all the necessary institutions, resources and infrastructure to implement their own policies. On the other hand, in a unitary system the provinces are merely quiescent structures that do not serve any meaningful purpose other than distributing resources and serving as warehouses for keeping goods and information for subsequent onward transmission to central government which is usually housed in the capital. It should be emphasized that regions in unitary states are not guaranteed institutions as they can be revoked at any time, unlike in federal states where regional structures are permanent institutions with guaranteed lifespans. It is normal practice that the powerful status of regions in federal states is manifested in the fact that they are, with the consent of central government, constitutionally empowered to make bilateral agreements with other independent states.

Local Government in Africa Local government in Africa is characterised by fragmented local practices as each nation implements different local government regulations (Watts, 1999:28). This is contrary to the European system of local government which is collectively governed by a single regulatory and legislative framework, namely The European Charter of Local Self-Government. The Charter provides a uniform system of local governance that governs all members of the European Union. In addition, such a collective arrangement/provision of

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local governance allows for peer review by member states, something that depends on the extent to which each member state complies with the regulatory framework on local governance. The Charter also guarantees political, administrative and financial independence to local authorities, thereby allowing them enough latitude to make their own developmental plans without or with limited central government interference. The Charter also recognizes the principle of local self-governance which is contained in domestic legislation. The principle of local self-governance is further reiterated by the fact that local authorities are elected by universal suffrage, arguably, the mainstay of a democratic system. It can therefore be noted that the European legislation on local governance seeks to inculcate democratic governance through the election of local authorities, which is left to the electorate, and there is no provision for the appointment of local officials. Of note are provisions in the Charter’s Preamble which, for instance, stipulate that local authorities should be: the main foundations for democratic regime and that the right of citizens to participate in the conduct of public affairs is one of the democratic principles that are shared by all member States of the Council of Europe.

These provisions show the extent to which European countries governed by the Charter are committed to democratic local governance. This also means that local authorities are able to regulate and manage their own affairs. This is unlike most African states where each country runs its own brand of local government, with most local government institutions being administered in line with the dictates of a unitary state system. As such, in the African local governance scenario there often appears to be no common purpose among countries in the same region. While it is common knowledge that Africa has the highest number of regional economic groupings, notably the SADC, COMESA, ECOWAS, or East African Community (EAC), each country in each of the regional blocs has its own brand of local government system. It can therefore be noted that there is an absence of a collective regional regulatory framework for all these regions. This leaves local governance in the hands of the ruling elites and other politicians in each country, who in most cases manipulate the fragmented local government system to their own advantage. For example, while South Africa and Zimbabwe belong to the SADC, local government in each of the countries is governed by a different brand of legislation. This could be due to the fact that South Africa is a federal state and runs its local government system in this regard. On the other hand, Zimbabwe, although it has regions/provinces, does not take these into consideration

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because the local government in the country is run along unitary state lines. One common feature of most local governments in Africa is that they are directly controlled by central government, save for new democracies such as South Africa which exhibit strong elements of a federal state system. The reason for this may be that most African governments came to power through the barrel of the gun and do not seem to be comfortable with the idea of allowing communities to make their own decisions. As such, most rulers in Africa are of the opinion that they are destined to rule their countries forever. Even in the South African federal system of governance, central government pulls strings from the centre by deploying the ruling African National Congress (ANC) cadres as a way of influencing community decision-making processes and adopting a regulatory framework that favours the ANC. In countries like Zimbabwe, central government makes arbitrary appointments to local councils so that the appointees operate alongside elected councillors. The local government transformation and decentralization processes underway in Sub-Saharan Africa have opened up space for local communities to better participate in decision-making processes and administration (Matovu, 2006: 5). The challenge facing decision makers has been to develop models of local governance that can best facilitate the involvement of civil society and local communities as well as how and by how much these can contribute to the establishment of good governance in a sustainable way. Scholars have provided various definitions of the concept of civil society, with the most common definition referring to civil society as involving organizations through which citizens can participate in, and exert influence over, public life (Fung and Wright, 2001; Mamadou, 1996: Manor, 1999; Swilling, 1994). Manor (1999: 34) maintains that civil society can be understood as “organized interests with a significant degree of autonomy from the state”. Swilling (1994: 4) offers the view that civil society consists of locally constituted voluntary organizations which have the capacity to influence and even determine the structure of power and the allocation of resources. These are ‘watch-dog’ institutions that exert pressure and control on state institutions in the area of governance and development, and that jealously guard their autonomy and identity (Swilling, 1994: 4). Mamadou (1996: 78) argues that many African countries are characterized by an institutional disconnect between formal, modern institutions trans-planted from outside and indigenous, informal institutions rooted in local culture. Formal institutions include the entire government machinery; from ministries to local governments. Civil society organizations exist as political organizations, trade unions, human

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rights groups, community-based organizations, and others (Fung and Wright, 2001: 8). As a rule, civil society organizations adhere to the principles of participation, transparency, accountability, equity, effectiveness and efficiency, strategic vision, and good management, which they seek to promote and enhance. In theory, a vibrant civil society can contribute to effective institutional development and democratic decentralization, enhance the responsiveness of government institutions, increase the information flow between government and the people, make development projects more sustainable, enhance accountability, transparency and integrity, all of which constitute good governance in a democracy. In short, proponents of civil society organisations view these institutions as enhancing participation and promoting good governance. However, considering the challenges that face local governance, it might be difficult for government to fully embrace civil society as a pillar of democratic decentralization. The socio-political and economic crises that engulfed Sub-Saharan Africa in the 1990s have persuaded state and non-state actors to collectively review policy and institutional mechanisms for delivering services and fostering development. Citizens demand quality services, while city managers lack the resources and morale to perform. One of the reasons civil society groups sprung up in the 1990s was as a result of the incapability of local governments to deliver good services and fight poverty and environmental destruction. It is unfortunate that the two parties (state and civil society) seem to have difficulties engaging in a productive relationship. Hyden (1992: 13) had earlier observed that in most African countries, governmental staff tended to be quite arbitrary in their approach to the people for whom they were designing or executing policies. If the people questioned or resisted arbitrary tactics, the officials resorted to intimidation or other measures aimed at punishing vocal citizens. This culture continues unabated in spite of decentralization and the democratization of governance. In Uganda, public officials are wary of civic associations, not least because of their role as vocal advocates for the disadvantaged, and are therefore reluctant to allow them to play a more active role in public affairs (Hoyos & Uys). Councillors tend to believe that civil society thrives on sowing the seeds of political discontent and on challenging the legitimacy of the councils. In Zimbabwe, the liberation background of the country which forced it to adopt a socialist/communist stance, tend to view non-state actors as saboteurs who should be guarded against or even avoided at all costs (Matumbike, 2010). Consequently, local governance in Zimbabwe is heavily politicised with the ruling political party calling the shots. Even with a different political party

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having come to dominate local government, the former ruling party still finds it difficult to contend with elected councillors from other political parties. This has resulted in the manipulation of local government legislation to counter the dominance of other political parties in the affairs of local councils.

Local Governance and Democracy: The Federal/Unitary Dichotomy While it can be acknowledged that the essence for local government structures is to promote democracy, this has varied between federal and unitary systems. In federal systems of government, devolution enables central government to transfer power and resources to local councils. This helps to enhance local democracy and citizen participation in governance processes. Through devolution, local communities are able to engage with their own elected leadership and to directly influence decisions on matters that directly affect their lives. In such cases there is very little central government interference and visibility. It is in matters of paramount importance, such as those of national security, that central government presides over since such matters do not always require public participation. In federal state systems, although central government may still seek to promote the policies of the ruling party(ies), the impact of such attempts can be vetted and at times turned down by local communities in favour of, for example, ‘pro-poor’ policies that benefit such communities (Afonso, 2006). Such is the character of democracy in a genuine federal system of government. In contrast, in most unitary state systems it is common practice that central government dictates what should be done by local councils for the communities. While there may be elements of consultation between central government and local government, this is limited and it is usually left to the whims of the Minister responsible for local government to make decisions on behalf of both central government and the local communities. Unitary systems are generally characterized by a disconnect between central government and local communities, since the emissary of central government, who is the Minister responsible for local government, may block communication between the two, leading to a loss of trust in central government by local communities. This may also impact negatively on democracy, especially given that democracy is all about the existence of healthy communication structures between central government and local communities. This is the case with Zimbabwe, in which the appointment of special interest councillors has compromised and in some cases

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frustrated communication between central government and local communities. The residents in different constituencies where such special interest councillors have been appointed have questioned the raison d'être for such appointees, especially given that some of the appointees may have lost in local government electoral contests. Such mistrust has led to a loss of trust in central government’s political will to involve communities in the resolution of problems concerning poor service delivery. This has resulted in residents accusing central government of peddling political ambitions. It has also been shown to be true that central governments in unitary state systems have sought to impose their political will on residents without consultation. This book goes into detail about the extent to which such a practice resonates with international benchmarks and best practice on democratic urban governance.

Politicisation of Local Governance in Africa One of the most prevalent features of local governance and local government institutions is the high level of politicization, which has tended to compromise democratic practice. Be it in federal states (which are very few on the African continent) and unitary states (which constitute the bulk of the continent’s member states), local governance is inundated with political interference, to the extent that citizens are either not consulted adequately or central government simply hands down laws and regulations without consulting the general populace. What has resulted from this scenario is a high level of dissatisfaction among people as the quality of service delivery has continued to plummet, increasing outbreaks of disease and the mushrooming of informal settlements in most urban areas. All these challenges are the result of a lack of adequate consultation with the residents who are the best judges of their needs. The World Bank (2007) has concurred that national governments in most African states do not seek to promote democracy within the sphere of local government by allowing the participation of its citizens. Instead, national governments only go as far as consulting citizens when already armed with legislations and regulations already crafted in government offices by technocrats. ‘Consultation’ in this case is a formality and does not reflect the commitment of most African central governments to democratise local governance. The prevalence of the practice of the politicization of local government and local governance has not only deprived communities of their democratic right to contribute to policies that affect their development, but has been manipulated by the ruling elites to gain political mileage by crafting and handing down policies and regulatory

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frameworks that seek to promote the political agendas of politicians. One case in this regard is the crafting of a local government legislative framework that empowers the Minister responsible for local government in Zimbabwe to appoint additional councillors in addition to those elected by the electorate. It does not require much familiarity with issues of governance to see that such a system of local government enables the Minister to appoint friends and relatives and promote other corrupt practices. The overall impact of such a piece of legislation is a loss of confidence in central government by communities, the creation of a rift between local communities and central government as well as the perpetuation of corrupt practices initiated at central government level. In the end, communities feel insecure and find solace in the formation of community-based organisations (CBOs) such as residents’ associations. Residents’ associations are formed by residents to engage with local authorities and central government regarding the undesirability of some of its policies and practices.

Residents’ Associations as a Conduit for Promoting Democracy Although from a civil society point of view, residents associations should be legitimate institutions representing the will of the local people, in the case of Zimbabwe, these institutions are not recognised in law and are simply regarded as civil society organisations that gratuitously oppose central government. It has been noted that as residents, mostly in urban areas, become increasing dissatisfied with central government and local council performance, they establish networks and institutions that enable them to speak with one voice. This is the essence of residents associations that both seek to create a discursive space for residents and in so doing democratise the decision-making process. Residents’ associations, by nature, are voluntary organizations that thrive on the commitment of the citizens to participate. They are attempts by residents to participate in the governance of their local affairs and to demand political space from central government. Participation in these voluntary associations has attracted a lot of controversy in recent years, with some associations being accused of being extensions of opposition political parties. Irvin and Stansbury (2005: 59) argue that “…because citizen participants are not paid for their time, (such) committees may be dominated by strongly partisan participants whose livelihood or values are strongly affected by the decisions being made, or by those who live comfortably enough to allow them to participate regularly”. It has been argued that “…citizenparticipation committees such as resident associations are usually

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overpopulated with members of the top socio-economic group” (Irvin and Stansbury, 2005) because “…the main priorities [of those from the lowincome groups] are to provide for their families, not spend time in meetings” (Irvin and Stansbury, 2005: 59). However, this is not always the case. Some residents’ associations have been known to be populated by poor people. An example of this is the Combined Harare Residents’ Association (CHRA) which is populated by aggrieved poverty-stricken citizens in urban areas whose interest is not confined to improved service delivery, but includes a desire for the restoration of democratic institutions in the country; hence their involvement in national programmes like the constitution-making process, election monitoring and petitioning the Minister of Local Government against the dismissal of democratically elected councillors in towns and cities throughout the country. The ‘resident association’ is an old concept, having begun during the colonial era when, due to the increase in the number of Africans in urban areas, concerns regarding appalling standards of living increased. These associations have been associated with urban dwellings and, during colonial days, with poor living conditions such as over-crowding, the establishment of, and living conditions in, squatter camps (informal settlements), as well as a shortage of safe drinking water and adequate sanitary conditions suitable for human habitation. As a result, local authorities became increasingly under pressure to provide good services to residents and to address any other conditions that pertained to residents’ livelihoods. Consequently, urban development and human settlement has brought to the fore issues of good living conditions, proper service delivery and good governance. Historically, associational life amongst Africans in the towns tended to be as ephemeral as the periods spent by migrant workers in the early urban settlements (Moyo et al, 2001: 23). Additionally, associational life in urban areas became spaces “…coterminous with modernization and therefore antithetical to African tradition and control” (Moyo et al, 2001: 23). The high rates of urban population growth raised the need for a corresponding increase in the provision of quality services. However, urban local authorities have always lacked adequate resources to meet the rising demand for quality services, which had been on the rise as a consequence of political emancipation, high literacy rates and increased global communication (Bland, 2011:345). The challenge facing decision makers has been to develop models of local governance that can best facilitate the involvement of civil society and how much civil society can contribute to the establishment of good, sustainable governance. For Mamadou (1996: 79), the challenges of local governance emanates from

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“…the institutional disconnect between formal, modern institutions transplanted from outside and indigenous, informal institutions rooted in local culture, namely the entire government machinery, from ministries to local governments”. It is this ‘disconnect’ that the Combined Harare Residents Association (CHRA) has attempted to address by calling the local authority to account. Matovu (2006: 69) notes that increasing demands for local government transformation and decentralization “…have opened up spaces for better participation in decisionmaking processes and administration”. In this vein, the Combined Harare Residents Association’s activities in attempting to enhance citizen participation in budgetary processes, as well as other democratic overtures, have provided an opportunity for residents to influence public policy formulation and implementation in local councils; in this case in the capital of Zimbabwe, Harare, and its environs. However, while there has been evidence to support the effectiveness of residents associations, insofar as influencing policy is concerned, development theorists argue to the contrary. The World Bank (2000: 56) argues that the ordinary citizens do not have the capacity and ability to influence public policy. To facilitate citizen participation, an appropriate and enabling environment should be created where human rights are observed, democratic structures put in place, the constitution is upheld, and the need to allow civil society unlimited access to the citizenry is acknowledged. Kamete (2009: 64) points out that “…the poor are often untouched by formal civil society organizations; instead they rely on a host of informal associations within their communities that often lack the capacity to influence government decision making, and which are by-andlarge limited in number, resources and leverage”. This is perhaps rather a discouraging remark, made by developmental multilateral institutions that should in principle be canvassing for participatory democracy through citizen involvement in national and local programmes and decisionmaking processes. Despite all the rosy definitions of residents associations in Zimbabwe and their inherent propensity to influence policy, the political landscape in Zimbabwe has always been such that central government plays a domineering role in local governance, leaving residents associations and other community-based organisations with no power, and turning CBOs into ceremonial institutions that are merely forced to comply with the dictates of central government. This has been shown by the amendment of section 4A of the Urban Councils Act which, in an effort to return losing ZANU PF cadres to the local government political fold, led to the empowerment of the Minister of Local Government Rural and Urban

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Development to appoint any individual to a local council on the pretext that such an individual has expertise required in local councils. The law and practice of this piece of legislation has led to the appointment of political colleagues of either the Minister or other ZANU PF party supporters most of whom had over the years been deployed to local councils.

Local Governance in Zimbabwe: A General Overview Local governance in Zimbabwe dates back to the 1890s when the colonial administration of the day, the British South African Company (BSAC), established the first formal local authority, the Salisbury Sanitary Board, to administer local affairs.2 Local government was not provided for in the Constitution but became a creature of statute which meant that the local government system did not have constitutional protection. Subsequent local government instruments and institutions such as municipal ordinances, as well as advisory boards and councils, were established and all fell under the direct control of the District Commissioner who sought to reinforce colonial policy in African townships. The centrally defined local governance institutions and structures were instituted to deny Africans self-government. In response to this repressive dispensation, residents, mostly from urban areas, resisted the entrenched racial legal and institutional frameworks. The centralised local government system imposed substandard and centrally defined programmes on African and Native Councils and ‘laid the foundation for a highly centralised postcolonial local governance system that was inherited at independence in 1980’.3 The post-colonial reforms to the local government system culminated in the amalgamation of African Councils into District and Urban Councils governed by a new set of legislation, namely the Rural District Councils Act 4 and the Urban Councils Act5. In District Councils, a consolidated set of legislative frameworks has been used to govern the conduct of district council operations, ranging from appointments, the election of council officials as well as revenue collection and service delivery. In addition, 2

Jordan JD Local Government in Zimbabwe: An Overview (The Mambo Press Gweru 1984) 12. 3 Madhekeni A & Zhou G ‘Legal and Institutional Framework: The “Achilles Heel” of Local Authorities and Raison D’etre of Ministerial Intervention in Zimbabwe’ (2012) Journal of Public Administration and Development 2 (3)20 4 Chapter 29.13, Rural District Councils Act (1996). 5 Chapter 29.15, Urban Councils Act, (1996).

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this legislation governs how the infrastructure should be developed. The same goes for urban areas where the Urban Councils Act operates along the same lines, providing direction on the way that local councils should be managed as well as how revenue should be collected to enable local councils to function properly. However, it should be noted that the new post-colonial dispensation did not seek to loosen central government’s stranglehold on local authorities but, rather, perpetuated its dominance over local councils by empowering the Minister of Local Government, Rural and Urban Development (MLGRUD) to provide strict monitoring mechanisms for local councils, both in rural and urban areas. Consequently, the post-colonial political establishment is often blamed for failing to redress the centralisation of powers by central government and to democratise local government.6 What appears to have been misconstrued by many people in Zimbabwe is the fact that the governing legal and institutional framework of local governance in the country provides an opportunity for the responsible Minister to legally enable or disable local authority administration.7 The intervention in the operation of local councils by the MLGRUD has been viewed as the ‘Achilles Heel’ of local authorities and presents a major weakness in the administration of local government affairs in the country.8 One of the pieces of legislation that has promoted legal intervention by the MLGRUD is section 60 of the District Councils and section 4A of the Urban Councils Act in which the Minister monitors or appoints special interest councillors in all urban councils in the country. However, it is the implementation of the law and practice of appointing special interest councillors in urban local councils that has attracted controversy and public outcry. Public outcry and negative media reports on the implementation of section 4A has resulted in a loss of faith with the way that the MLGRUD has been implementing this legislation.

Creating a Normative Framework for Local Representative Governance The principal purpose of this section of the book is to provide a normative framework for local representative governance. To be able to provide the 6

Blunt G ‘Overcoming a decade of crisis: Zimbabwe’s Local Authorities in transition’ 2011 Journal of Public Administration and Development 31 (4) 340350. 7 Bland G ‘Overcoming a Decade of Crisis: Zimbabwe’s Local Authorities in Transition’ (2011) Journal of Public Administration and Development 31 (4) 342. 8 Madhekeni & Zhou 25.

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normative framework, the author will explore and extrapolate critical features of representative governance from the different international and regional instruments as well as the Zimbabwe Parliamentary Select Committee (COPAC) constitutional draft. In this regard, the author explores selected instruments drawn from different levels to extrapolate the critical features of democratic governance. By using the critical features of democratic governance extrapolated from the instruments, the author will be able to provide a critique of section 4A of the Urban Councils Act which empowers the MLGRUD to appoint special interest councillors and establish the extent to which law and practice complies with democratic best practice. The instruments that are discussed are divided into four sections: ¾ international instruments to which Zimbabwe is not a signatory; ¾ international instruments to which Zimbabwe is a signatory; ¾ African regional instruments to which Zimbabwe is a signatory; as well as ¾ the COPAC Constitution of Zimbabwe which recently passed through a referendum and underwent ascension.

Instruments to which Zimbabwe is not a Signatory Although Zimbabwe may not be a signatory to some of the international and regional instruments, there are traits and attributes contained in the instruments from which the country’s local government system can draw. This category of instruments is noted for its provision of critical features of democratic representative democracy in designated areas such as the Asian and Pacific regions as well as countries covered by the European Union. In different regions of the world, guidelines have been used to provide guidance to local governance. There are several international instruments that provide for democratic local governance in different parts of the world that may not be relevant to Zimbabwe but from which the country can draw significant lessons. The international instruments to which Zimbabwe is not a signatory are the European Charter of Self-Government (2010), the United Nations Economic Commission for Asia and the Pacific, and the UNESCAP-Good Governance Index (2006). These instruments provide a general framework from which Zimbabwe can draw critical features of democratic local governance. Although these instruments refer to local government in Europe and Asia and the Pacific regions, Zimbabwe can draw from them. The European Charter recognises the autonomy of local authorities and the

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right of local communities to take part in the election of local councillors.9 With regards the autonomy of local councils, the Charter recognises the right and the ability of local authorities to regulate and manage public affairs under their own responsibility and in the interest of the local population.10 The Charter also highlights the composition of local councils which should comprise members freely elected by secret ballot on the basis of direct, equal, universal suffrage.11 The UNESCAP-Good Governance Index provides eight generic and critical features of good governance which are participation, equity and inclusiveness, effectiveness and efficiency, responsiveness, rule of law, accountability and transparency. Both the European Charter and the UNESCAP-Good Governance Index do not provide for the appointment of local councillors. The two instruments provide that councillors should be elected in conformity with local/national legislation. These two instruments help in setting standards to test the extent to which section of 4A of the UCA conforms to representative governance standards. In addition, the index provides a framework for the democratisation of the country’s local government system.

International Instruments to which Zimbabwe is a Signatory All countries that are members of the various international communities are obliged to comply with the dictates of such international instruments. To acknowledge their acceptance of international instruments that place an obligation on member states to comply, member states become signatories to the provisions of such instruments. In this regard, there are several international instruments to which Zimbabwe is a signatory. In this book, as has been highlighted elsewhere, the focus is on those instruments that provide for democratic local governance. The international instruments that are explored in this book and which seek to address good democratic local governance include the United Nations-Habitat–Good Urban Governance Index (2004) and the United Cities and Local Governments (UCLG). These instruments are included in this book to provide an idea of the extent to which they represent critical features of a model of good democratic governance. The discussion of these instruments provides a framework for international ‘best practice’ on which to ‘test’ local 9

Article 3 (1), European Charter of Local Self-Government (2010). Article 3 (1), European Charter of Local Self-Government (2010). 11 Article 3 (2), The European Charter of Local Self-Government (2010). 10

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government legislation anywhere, including Zimbabwe, and to establish whether such law and practice complies with international best practices in local government. The United Nations-Habitat –Good Urban Governance Index (2004) provides benchmarks for transparent and democratic local governance. The United Cities and Local Governments (UCLG) provides a forum for the promotion of democratic local governance. The UCLG Constitution places an obligation on local government institutions to promote local democracy. The UCLG Committee on Decentralisation and Self-Government has as its main objective ‘strengthen(ing) decentralisation and local self-government processes with the aim of improving local governance in every region of the world’.12 The work of the Committee contributes to the strategy of the World Organisation of United Cities and Local Government in the field of local governance and seeks to influence local governance practices across the globe.

African regional instruments to which Zimbabwe is a signatory In addition to the two categories of instruments discussed above, there is a plethora of African regional instruments which have been created by African countries for the governance of African local government institutions. Such instruments seek to provide a collaborative forum and framework on the basis of which local government institutions on the continent can be governed. In the African region, the most notable local government instrument is the United Cities and Local Governments of Africa (UCLGA). The others are the Charter for Popular Participation in Development and Transformation (CPPDT) (1990); the African Union Charter on Democracy, Elections and Governance (ACDEG) (2012); the All Africa Ministerial Conference on Decentralisation (AMCOD); the Victoria Falls Declaration (1999); the Kigali Declaration (2006) and the Harare Declaration (1999). The different international and regional instruments as well as the COPAC Constitution are discussed in detail. From all the instruments the author extrapolates critical features of democratic local governance which will be used to test the extent to which the legislation and practice of appointing special interest councillors in terms of section 4A of the Urban Councils Act (UCA) conforms to democratic urban governance. It should be noted that most of the instruments that will be explored are ‘soft laws’ which are commitments made by negotiating parties and are not legally binding but depend on the willingness of state parties to 12

UCLG, Committee on Decentralisation and Local Self- Government (2012) 4.

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comply. ‘Soft laws’ are characterised by the relatively large amount of discretion which is left to the parties bound by the obligation.13 However, it should be noted that although the ‘soft laws’ are discretionary, they are not without important legal and political effects. They help to promote coexistence and the exchange of information among state parties as a way of finding common ground on issues of national, regional and international importance. As such, it can be pointed out that soft law instruments are only potentially binding and can be conceived of as the beginning of a gradual process in which further steps are needed to make such agreements binding rules for states.14 This is the premise on which the instruments that are explored for this book will be regarded.

The Zimbabwe Parliamentary Select Committee (COPAC) Constitution It should be noted that although the COPAC Constitution has not been in existence for a long time, its provisions on local government highlight democratic local governance. Given that local government in Zimbabwe has been in existence for a long time and has been implemented differently over the years, the new Constitution holds prospects for a more transparent and democratic form of local governance. The frameworks obtaining from the cited instruments will be used in this section of the book to determine the extent to which section 4A of the Zimbabwe Urban Councils Act complies and resonates with elements of representative democratic governance. In addition to the wide range of legislative, institutional and regulatory frameworks that provide acceptable standards for representative democratic governance, a brief discussion of Zimbabwe’s Parliamentary Select Committee (COPAC) Constitution on decentralisation and devolution will be provided.15 From the selected legislative and regulatory frameworks, this section will identify the objectives of each instrument; their legal status, guiding principles, elements of democracy, decentralization, cooperative governance, as well as whether the framework recognises local governance. The findings from this discussion will provide the basis for the analysis of local government practices in Zimbabwe, with specific reference to the provisions of section 4A and the extent to which this legislation resonates with these elements of good local governance. 13

Grnchalla-Wesiershi T ‘A Framework for Understanding “Soft Law”’ (2001) McGill Law Journal 30 (37). 14 Grnchalla-Wesiershi (2001) . 15 S14.11, COPAC draft (July 2012).

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Legislative and Regulatory Frameworks Providing for Critical Features of Representative Governance In exploring the different instruments, the author presents the background, legal force and relevance of the instruments to local governance as well as the elements of representative governance. A detailed analysis of the COPAC Constitution and international instruments will be provided and used to test section 4A.

International Framework for Local Governance A brief discussion of the UN-Habitat-Good Urban Governance Index and the United Cities and Local Governments guidelines as instruments providing for generic guidelines for good local governance is provided. United Nations Habitat-Good Urban Governance Index (UGI)

Background and Purpose The United Nations-Habitat Urban Governance Index (UGI) was developed by the Global Urban Observatory and the Global Campaign on Urban Governance to provide general guidelines and a normative framework for good urban governance. The UGI is an advocacy and capacity-building tool that assists urban councils and countries in monitoring the quality of urban governance. The objectives of the UGI are: ‘to demonstrate the importance of good urban governance in achieving broad development objectives’ at global level,

and at local level ‘to catalyse local action to improve the quality of urban governance by developing indicators that respond directly to their unique contexts and needs’16

as well as ‘to contribute to the strengthening and improving of urban governance’17

16

UN-HABITAT-Good Urban Governance Index ‘Urban Indicators Guidelines: Monitoring the Habitat Agenda and the Millennium Development Goals’ (2004b). 17 UN-HABITAT-Good Urban Governance Index (2004b).

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The UGI provides a blueprint for good urban governance practices in urban areas across the globe. The UGI is anchored in its desire to promote participatory local governance in urban areas including participatory budgeting. The UGI chart below shows the different components of good urban governance. The chart is important for this book because it identifies the various elements of democratic urban governance which provide a normative framework from which local government institutions in Zimbabwe can extrapolate the practice of democratic governance. The UGI chart graph provides accountability, participation, equity and effectiveness as vital elements of democratic urban governance.

Adapted from the UN-Habitat-Good Urban Governance Index (2004).

Relevance and Legal Force Although the UN-Habitat Good Urban Governance Index is not a binding document, it provides a normative framework for democratic local governance in local councils. Additionally, the UN-Habitat provides a self-assessment framework for cities and a platform on which assessment of performance of local governance structures and instruments can be

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based. From the framework, countries are able to draw critical features of local democratic representative governance. .

Critical Features of Democratic Governance As indicated above, the Urban Governance Index presents several normative elements that constitute democratic governance practice in general and representative governance in particular. It can be noted that the elements encapsulated in the UGI index are accountability, participation, equity and effectiveness. All these elements are components of representative governance.18 The Index provides that democratic local governance should be accountable to the local community. Accountability is also promoted through independent audits as well as monitoring by higher tiers of government. Public officials must abide by codes of conduct, avoid corrupt practices and receive public complaints.19 To promote transparency, anti-corruption institutions and the disclosure of incomes for local council officials should form part of the accountability processes. The UGI chart emphasises participation as a vital component of democratic governance. Participation in local governance should be through the election of councillors by residents. The Index encourages local authorities to strive for gender balance in the composition of local authorities. The chart also provides that equity is of paramount importance in democratic governance where the election of local leadership should be in recognition of the role of women and other marginalised groups in decision-making processes. The involvement of communities in establishing citizen charters and the formulation of pro-poor policies provide an opportunity for citizens to be part of the governance process. The Index also presents effectiveness as the beneficial utilisation of resources to ensure transparency in financial transactions. Lastly, the UGI index recognises the role that civil society organisations can play in ensuring accountability by public institutions and officials. The UGI exhorts local authorities to make available communication channels by way of citizen charters, thereby acknowledging citizens’ right of access to basic services.20

18

UGI (2004). UGI (2004). 20 UGI (2004). 19

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United Cities and Local Governments Background and Purpose The United Cities and Local Governments (UCLG) is an amalgamation of the International Union of Local Authorities (IULA) and the United Towns Organisations and Metropolis (UOTM).21 The UCLG is the largest local government forum in the world that brings together different towns and cities across the globe to deliberate on ways to enhance democratic urban governance. Together the UCLG Committee and other affiliates of the UCLG provide a forum where local government institutions deliberate on local government best practices and the implementation of such practices in different cities and towns across the globe. The UCLG provides a forum for setting norms and standards for the promotion of local democracy, self-government and decentralisation. In addition, UCLG helps in mapping out ways of fostering accountable and transparent local governance through forging linkages between local communities and NGOs.

Relevance and Legal Force The UCLG is a persuasive forum that inculcates the values of ‘normsetting’ in cities, towns, metropolitan and national local government institutions. The UCLG provides a platform for mapping out programmes that promote representative governance and set a normative framework for democratic governance. Through committees such as the Committee on Social Inclusion, Participatory Democracy and Human Rights, the UCLG is able to influence local government policy formulation and make representations on behalf of its affiliates. The UN General Assembly has afforded the UCLG observer status. This means that although the UCLG is not a member of the United Nations Organisation, it can be invited to observe the deliberations of the United Nations.22 The UCLG is thus an advisory body to the United Nations on local government mechanisms to promote decentralisation and to deepen local democracy. It also advises the UN on more systematic ways to engage with elected representative and authorities at local level as well as on principles of local autonomy. Taking cognisance of its advisory role within the UN organs, the UCLG can 21

UN-Habitat-United Cities and Local Governments’ (2011). General Assembly of the United Nations Observer status for the United Cities and Local Governments in the General Assembly (2010) (A/C.6/66/L.6). 22

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influence policies on local government. In addition, the UCLG enjoys international recognition, with the World Bank and the Global Forum having signed cooperation agreements with the UCLG to collaborate in strengthening local government democratic structures, fighting poverty and improving living standards of people. However, despite this recognition, the UCLG Constitution remains a ‘soft law’ and Zimbabwe can still draw from the elements of representative democracy provided by the UCLG on the election of local representatives.

Critical Features of Democratic Governance The UCLG Committee on Social Inclusion, Participatory Democracy and Human Rights of the United Cities and Local Governments (UCLG) recognises people’s right to social inclusion, participation and to human rights.23 The UCLG Committee on Social Inclusion, Participatory Democracy and Human Rights acknowledges and reaffirms the fact that social inclusion is of paramount importance to democratic governance.24 In this context social inclusion implies incorporating all people in decision-making processes that affect their lives. The Committee also supports the notion of ‘the right to the city’ in which cities have the right to be managed by competent individuals democratically elected by residents.25 Residents’ socio-economic rights are viewed as of paramount importance and should be realised by local authorities.26 In addition, the Committee provides for the articulation of participatory democracy initiatives and programmes in local government institutions.27 The UCLG also recognises the importance of local forums as platforms for information exchange among citizens and local authorities. It can therefore be noted that the Committee holds that social inclusion and participative democracy only make sense as political goals committed to the recognition of civil, political and social rights realised through the application of very diverse, institutional and non-institutional tools. The Committee notes that citizens must be regarded as equal and should therefore enjoy their political, social and economic rights.28 Here 23

From the work of the Committee on Social Inclusion, Participatory Democracy and Human Rights (2011). 24 Article 2, UCLG Committee on Social Inclusion, Participatory Democracy and Human Rights (2011). 25 Article 4, UCLG Committee (2011). 26 Article 4, (1), UCLG Committee (2011). 27 Article 6, UCLG Committee (2011). 28 Article 4 (1), UCLG Committee (2011).

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the Committee implies that local communities should be regarded as having the right to participate in the socio-economic and political activities which affect their communities. For this book the Committee’s provisions would imply that democratic governance should incorporate the involvement and contribution of different actors in governance processes. The fact that the UCLG recognises the existence of vulnerable and marginalised groups in society resonates with the concept of inclusiveness which is a vital component of representative democracy. The UCLG does not allude to the appointment of local councils in its provision of elements of representative democracy. The critical features of democracy that are drawn from the work of the Committee on Social Inclusion, Participatory Democracy and Human Rights include citizen participation through electoral processes, the inclusion of marginalised groups in decisionmaking processes, accountable local leadership and the devolving of decision-making powers to local communities.29 In addition, the UCLG Committee provides the right of residents to have clean and well-managed cities.

Framework for Local Governance in Africa A number of regional legislative instruments on local governance govern the conduct of local governance and local government institutions in different parts of the globe, including on the African continent. These instruments form a framework for local governance on the continent. The different legislative instruments governing local governance in Africa are presented in this section. Some of the international instruments are linked to Africa since they have chapters on the African continent. An example is the United Cities and Local Governments (UCLG) which has the United Cities and Local Government in Africa (UCLGA) as its African chapter. As such, the two institutions link their activities. Similarly most African local governments draw from international frameworks such as the UNHabitat framework on local government. There is also a plethora of Africa-specific legislative instruments that seek to provide a framework for democratic practice in general and democratic local governance in particular. The instruments and forums can either be binding or ‘soft laws’ which are not binding. The legislative instruments and forums to be explored in this normative framework include the Charter for Popular Participation in Development and Transformation (CPPDT) (1990); the African Union Charter on Democracy, Elections and Governance 29

Article 9, UCLGA Constitution (2008).

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(ACDEG) (2012); the All Africa Ministerial Conference on Decentralisation (AMCOD); the United Cities and Local Governments of Africa (UCLGA); the Victoria Falls Declaration adopted in 1999; the Kigali Declaration of 2006 and the Harare Declaration. From each of the instruments the author extrapolates critical features of representative democratic governance that will be used to establish the compliance of section 4A of the Urban Councils Act to democratic practice.

The United Cities and Local Governments of Africa (UCLGA) Background and Purpose The United Cities and Local Governments of Africa (UCLGA) is a forum of African local government institutions and it is guided by a Constitution. The UCLGA was established by the Ministers and leaders of local governments in Africa at the Africities 1 Summit, Abijan, 1998 to spearhead local government reforms in most African countries and democratise local government institutions.30 The General Assembly is the supreme decision-making body of the UCLGA31 while the Pan-African Council of Local Governments is the policy-making body of the organisation.32 The researcher discusses elements of representative democracy contained in the UCLGA Constitution.

Relevance and Legal Force The United Cities and Local Governments of Africa (UCLGA) was established by way of a Constitution as a Pan-African international organisation of which the majority of African countries, including Zimbabwe, are members.33 The UCLGA enjoys the recognition of the African Union and strives for a united and strong Africa and a local government system based on democracy and accountability.34 The UCLGA draws its power from the UCLGA Constitution which regulates activities of the organisation in seeking to provide a framework for the governance of cities and local government in Africa. The UCLGA’s 30

Preamble, UCLGA Constitution (2008). Article 10, UCLGA Constitution (2008). 32 Article 10, UCLGA Constitution (2008). 33 Article 1, UCLGA Constitution (2008). 34 Preamble, UCLGA Constitution (2008). 31

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recognition by the African Union enables it to have credibility and acceptance by member states on the continent, including Zimbabwe.

Critical Features of Democratic Governance The UCLGA is guided by its founding values which are respect for democratic principles, rule of law and good governance.35 In addition, the UCLGA Constitution presents the objectives of the UCLGA, the most applicable to the theme of this book being that of seeking to promote democratic principles and institutions, popular participation in the processes of governance.36 In its objectives, the UCLGA also encourages State parties to abide by and/or complement the efforts of other regional legislation frameworks, especially those that seek to promote the observance of human rights37 such as the African Charter on Human and People’s Rights as well as the African Charter on Democracy, Elections and Governance both of which strive to promote democratic electoral principles.38 In addition, the UCLGA recognises the importance of inculcating the virtue of popular participation in the governance of local authorities as evidenced by the provision that central government should seek to ‘promote democratic principles and institutions, popular participation in the process of governance and good governance generally’.39 Most importantly the UCLGA recognises the importance of the decentralisation of power from central government to local councils and eventually to communities. This is provided in the statement that central governments should seek to ‘promote the policy of decentralisation’.40 The critical elements of representative democracy drawn from the UCLGA Constitution include decentralisation, popular participation, the rule of law and good local governance. As a result, the promotion of the devolution of power to local authorities and communities forms one of the core components of UCLGA. This book will seek to test the extent to which the appointment of special interest councillors in the Zimbabwean context complies and/or resonates with the elements of representative governance provided in the UCLGA Constitution. 35 Article 3.4, Constitution of the United Cities and Local Governments of Africa (UCLGA) (2008). 36 Article 4.9, UCLGA (2008). 37 Article 4.10, UCLGA (2008). 38 Article 4.11, UCLGA) (2008). 39 Article 4 (4.9), UCLGA Constitution (2008). 40 Article 4 (4.12), UCLGA Constitution (2008).

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Charter for Popular Participation in Development and Transformation (CPPDT) Background and Purpose Unlike most international instruments and initiatives which are spearheaded by national governments, the Charter for Popular Participation in Development and Transformation (CPPDT) was a collaborative initiative by NGOs, grassroots organisations as well as African states.41 The CPPDT was adopted by the United Nations Economic Commission for Africa in Arusha, Tanzania in February 1990. The major objective of the Charter was ‘to sensitise national governments and the international community to the dimensions, dynamics and processes and potential of a development approach rooted in popular initiatives and self-reliant efforts’ 42

The Charter was established in response to the deterioration of social and economic conditions in most African countries from the 1980s onwards. This deterioration of the socio-economic conditions and the closed political systems that characterised most of Africa’s governance structures and institutions in the 1980s led to the ‘full appreciation of the role of popular participation in decision-making processes’.43 The Charter was therefore meant to explore ways of curtailing the deterioration of the social and economic conditions of people on the African continent through empowering citizens to make decisions on matters that affect their lives. Consequently, the focus of the CDDPT is rooted in adopting a community-centred approach to development and recognises the vital importance of a people-based approach to development where communities are part of the governance process at all levels and at all times. The CDDPT has provided a blueprint on which participatory democratic principles can be strengthened, including empowering people to make informed socio-economic and political decisions. Key features of representative democratic governance emanating from the CDDPT that

41

Article (B) (d) and Article (D) (a), Charter for Popular Participation in Development and Transformation (1990). 42 Article 4 (b), Charter for Popular Participation in Development and Transformation (CPPDT) (1990). 43 Charter for Popular Participation in Development and Transformation (CPPDT) (1990).

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will be used to examine section 4A are participation, inclusiveness, accountability and transparency.

Relevance and Legal Force The Charter for Popular Participation in Development and Transformation (CDDPT) is ‘soft law’. Zimbabwe is a signatory to the Charter and as such it is bound by the provisions. The Charter calls for popular participation in development and transformation.44 However, although the CPPDT lacks the force of law it encourages state parties to make a commitment towards the realisation of the ideals of popular participation and democratic governance.

Critical Features of Democratic Governance The Charter for Popular Participation in Development and Transformation (CPPDT) presents several elements of democratic representative governance. These include citizen (popular) participation which highlights the importance of a participatory approach to governance. The CPPDT presents popular participation as a fundamental right of the people to fully and effectively participate in the determination of the decisions that affect their lives at all levels and at all times.45 The Charter asserts the role of popular participation as a determinant and assertive ingredient in democracy and recognises that governance is a collaborative effort between the citizens, their respective governments as well as the international community. Citizens provide a vital cog in the participation continuum and should ‘be fully involved, committed and indeed, seize the initiative’.46 The Charter urges African governments to provide an enabling environment for citizens to freely participate in affairs that affect their lives by way of appropriate legislation at different levels of government ‘to yield space to the people, without whom popular participation would be difficult to achieve’.47 The CDDPT also recognises the importance of the international community in supporting the

44

Article 21 (ii), African Charter for Popular Participation in Development and Transformation (ACPPDT) (1990). 45 Article 23 (ii), ACPPDT (1990). 46 Article 23 (iii), ACPPDT (1990). 47 Article 17, African Charter for Popular Participation in Development and Transformation (1990).

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Chapter Two indigenous efforts which promote the emergence of a democratic environment and facilitate the people’s effective participation and empowerment in the political life of their countries.48

From the viewpoint of the CPPDT it can be noted that the instrument presents governance as a collective obligation of both the governors and the governed. The CPPDT obliges state parties to facilitate popular participation, which is required to create enabling legislation and a conducive environment for citizens to freely deliberate on political, economic and social decision-making processes. State parties are compelled to tolerate differences, accept consensus on pertinent issues as well as ensure the effective participation of the people and their organisations and associations.49

African Charter on Democracy, Elections and Governance (ACDEG) Background and Purpose The African Charter on Democracy, Elections and Governance (ACDEG), which came into force and was ratified on 15 February 2012, seeks ‘to promote adherence by each State Party to the universal values and principles of democracy and respect for human rights premised upon the supremacy of the constitution and constitutional order’.50 The ACDEG is possibly the first comprehensive instrument to call for decentralisation and to make it binding on African governments and reaffirms Africa's commitment to democracy and the rule of law. The Charter has been credited for reaffirming the primacy of the rule of law and calling on state parties to initiate appropriate measures, including legislative, executive and administrative actions to bring State Parties' national laws and regulations in conformity with the Charter.51 Given that the ACDEG is the latest of African initiatives to democratise governance on the continent, it stands to contribute to the strengthening of electoral processes. It should be noted that the thrust of the Charter is in ‘stating the minimum requirements for the observance of democratic principles, and its ratification and implementation is imperative to the attainment of peace 48

Article 23 (3) (iv), African Charter for Popular Participation in Development and Transformation (1990). 49 Article 24 (1), ACPPDT (1990). 50 Lee R ‘New era for democracy in Africa’ (2012) Open Society for Southern Africa (OSISA). 51 Lee (2012).

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and security, protection of human rights and effective democratic governance in Africa’52. While the Charter provides for democratic principles, it does not specifically allude to the appointment of political leadership but to its election through the electoral process which should meet the minimum requirements that deem them free and fair.

Legal status and relevance The ACDEG presents one of the most outstanding efforts by African heads of state to democratise local government through either decentralization or devolution, or both. The plethora of ‘soft laws’ that had existed prior to the enactment of the ACDEG, notably the Charter for Popular Participation in Development and Transformation adopted by the UN Economic Commission for Africa (1990), the Victoria Falls Declaration (1999) as well as the Kigali Declaration of 2006 were not enforceable as will be highlighted later in this section of the book. Zimbabwe is one of the countries that signed and adopted the instrument in January 2007.53 The ratification of the Charter in February 2012 comes at a time when states are increasingly coming under pressure to democratise different institutions of government, especially local government. The ACDEG is therefore a continental effort by African heads of state showing commitment to the decentralisation and democratisation of local government. The Charter exhorts AU members that accede to the Charter commit themselves to establishing and strengthening independent and impartial national electoral bodies responsible for the management of elections, and to ensure that there is a binding code of conduct before, during and after the election period. 54

Zimbabwe, being a signatory to the Charter, has an obligation to subscribe to and implement the guidelines governing electoral processes contained in the Charter. In addition, the ratification of the Charter signalled a new era in Africa based on the synergy between free and fair elections, good governance and promotion of the rule of law.55

52 IDASA (2012) ‘15 Ratifications of the AU Charter on Democracy, Elections and Governance’. 53 IDASA (2012). 54 Article 3 (4), ACDEG (2012). 55 Lee New era for democracy in Africa (2012).

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Critical Features of Democratic Governance The contribution of the ACDEG to local government is that the instrument recognises the importance of decentralisation in the governance of communities. The instrument requires state parties to ‘decentralise power to democratically elected local authorities as provided in national laws’.56 In addition, the Charter reaffirms the importance of free and fair elections and the need for political stability in African states.57 As a result, the instrument seeks to promote best practices in the management of elections for purposes of political stability and good governance.58 The ACDEG recognises the right of communities to contribute to decision-making processes through the creation of conditions conducive to citizen participation. The instrument identifies transparency, access to information, media freedom and accountability as some of the elements that make for good democratic governance. In this regard, the instrument requires that states should promote the establishment of the necessary conditions to foster citizen participation59, transparency,60 access to information, freedom of the press and accountability in the management of public affairs.61

The ACDEG acknowledges the significance of transparency in the election of public officials, which in the case of local government would mean the election of public official to administer the affairs of local councils. In addition, the instrument compels states to take reasonable measures to ensure that people have access to information that would enable them to make informed socio-economic and political decisions. It calls upon state parties to enact relevant legislation that promotes and strengthens democratic institutions. In this regard the ACDEG calls upon state parties to ‘develop the necessary legislative and policy frameworks to establish and strengthen a culture of democracy and peace’. 62 The ACDEG subscribes to the free and fair election of public officials as a democratic way of securing political leadership. In summary, the

56

Article 34, African Charter on Democracy, Elections and Governance (ACDEG) (2012). 57 Article 35, (ACDEG) (2012). 58 Article 2 (13), ACDEG (2012). 59 Article 2 (10), ACDEG (2012). 60 Article 2 (10), ACDEG (2012). 61 Article 2 (10) ACDEG (2012). 62 Article 11, ACDEG (2012).

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Charter calls upon states to conduct free and fair elections, establish good governance structures and promote the rule of law.63

All Africa Ministerial Conference on Decentralisation (AMCOD) Background and Purpose The growing realisation and recognition of the importance of local governance has resulted in states making concerted efforts and taking initiatives to promote decentralisation. In this regard African Ministers of Local Government have established forums and platforms to deliberate on ways to promote and enhance local governance. One such forum is the All Africa Ministerial Conference on Decentralisation (AMCOD) which was established in terms of its constitution. The AMCOD is a permanent ministerial forum where Ministers in charge of local governance map out strategies for the enhancement of local government structures. Through AMCOD forums Ministers responsible for local government in their respective countries deliberate on ways to enhance democratic governance and share democratic governance best practices. Most importantly the AMCOD initiated the drafting of the African Charter on the Values, Principles and Standards of Decentralisation and Local Governance.64 Together with the United Cities and Local Governments of Africa (UCLGA) these two bodies have a specific focus on, and mandate to develop, common regional standards on sub-national governance and democracy. The AMCOD is therefore concrete evidence of the commitment shown by Ministers in charge of local governments on the African continent to share experiences on local government best practices.

Legal Status and Relevance The AMCOD is a ministerial grouping and provides a framework for decentralisation as ‘soft law’. It is guided by a constitution which stipulates ministerial functions in terms of the decentralisation of local government institutions and is a persuasive instrument that provides a platform for ministers of local government to make and deliberate on resolutions on ways of strengthening local democracy. The African Union (AU) invites the AMCOD to AU meetings as a way of recognising the 63 64

Article 34, ACDEG (2012). Article 2, AMCOD Constitution (2008).

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concerted effort of African governments in enhancing local democracy. The AMCOD is in regular interaction with the AU during which the African Union and the AMCOD may hold joint consultative meetings through their competent organs65. However, the provisions of the AMCOD are not binding on member states. The decision-making process in the AMCOD is by consensus. In this regard the AMCOD provides that: decisions of the Conference of Ministers are adopted by consensus, or where necessary, by the majority of members present. 66

This implies that in the spirit of unity, ministers are bound by the decisions of the AMCOD and as such this helps to inculcate a sense of compliance with these decisions. All ministers in charge of local government adopt the Constitution through the vote. It is stipulated that: the AMCOD Constitution shall be enforceable as soon as it is adopted by the Ministers in charge of decentralisation and local development by a 2/3 (two-third) majority of member countries present. 67

The AMCOD provides a link between decentralisation and local development.68 In addition, through sub-regional groups of Ministers responsible for local government, Ministers are able to peer review each other on the extent to which they implement decentralisation programmes in their respective countries. Zimbabwe is a member of the AMCOD and as such is bound by the resolutions of the Conference.

Critical Features of Democratic Governance The AMCOD calls upon AU member states to enact defined laws that empower local authorities to make decisions that address the challenges in their respective constituencies. The Constitution sets out several objectives of the ACMOD, which include the promotion of, ‘decentralisation, local governance and participation of citizens and social groups in designing and implementing development policies’.69 This objective places decentralisation at the epicentre of local governance where citizens are given the opportunity to participate in the 65

Constitution of the All Africa Ministerial Conference on Decentralisation and Local Development (AMCOD) (2008). 66 Article 11, AMCOD Constitution (2008). 67 Article 22, AMCOD Constitution (2008). 68 Article 23, AMCOD Constitution (2008). 69 Part I (2), AMCOD Constitution (2008).

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formulation and implementation of developmental policies within their constituencies. In addition, the AMCOD takes cognisance of the importance of incorporating civil society in development initiatives and urges state parties to collaborate with civil society in this regard to ‘sensitise all the stakeholders of the civil society to the primordial place of decentralisation in the economic, social and cultural development of every nation’.70 For this book the provision on decentralisation would mean that the empowering of communities to make decisions on matters that affect their lives and communities is vital for local democracy. The AMCOD does not provide for the appointment of public officials but points out that leadership should be subject to a democratic electoral process.71 In conclusion, the critical features of representative democracy that have been identified from the provisions of the AMCOD include decentralisation, community participation, and inclusiveness. The emphasis of the AMCOD is decentralisation of local government, and this will be used in chapter 4 to test the level of compliance of section 4A of the UCA to representative democratic practices. In addition, section 4A will be tested against the contribution of stakeholders to the democratic process as provided by the AMCOD.

The Kigali Declaration (2006) Background and Legal Status The Kigali Declaration is a culmination of deliberations by ministers in charge of decentralisation and local government held in Kigali (Rwanda) in 2006. The focus of the meeting was to provide a road map for decentralisation and the empowerment of local communities to participate in decision-making processes.72 Zimbabwe took part in the deliberations and as such is party to the commitments that were reached at the meeting. The resolutions of the Ministerial Conference, which came as a declaration, are a show of commitment by participants to the meeting and as such are not binding. All the provisions of the Kigali Declaration are in the form of ‘soft law’ and as such are persuasive and call upon participants to commit themselves to the democratisation of local government and decentralization, in which central government cedes power to sub-national government 70

Part 1 (2) (2008). Article 17, AMCOD (2012). 72 Preamble, Kigali Declaration on Leadership Capacity Building for Decentralised Governance and Poverty Reduction in Sub-Saharan Africa (2005). 71

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level. In addition, as ‘soft law’ the Declaration provides guidelines to the signatories and other non-signatory states to promote and strengthen democratic local governance.

Critical Features of Democratic Governance The Kigali Declaration recognises the negative impact of poverty on the promotion of democratic local governance structures as well as promoting development. Consequently the Declaration considers decentralisation as central to poverty reduction and states that: decentralisation is an essential instrument for consolidation and strengthening of democracy, good governance, economic growth and poverty reduction.73

In addition, the Kigali Declaration calls upon and exhorts State parties to enact legislation that provides for the decentralisation of local government institutions to accommodate community participation in the decisionmaking processes of local councils. The Declaration further calls upon States to facilitate the enactment of legal and institutional frameworks based on clear decentralisation vision containing the effective process of decentralisation and legal instruments that determine the pace of commitment to decentralisation. 74

The primary elements of representative democratic governance that have been drawn from the Kigali Declaration are decentralisation, citizen participation and economic growth and poverty reduction and the need for State parties to enact legislation for the promotion of decentralisation of power to local councils.

The Victoria Falls Declaration (1999) Background and Legal Status The Victoria Falls Declaration was the result of deliberations by ministers responsible for local government and decentralisation, mayors and key stakeholders. The Declaration sought to map out a shared vision on local 73

‘Decentralised Governance Challenges’ Kigali Declaration on Leadership Capacity Building for Decentralised Governance and Poverty Reduction in SubSaharan Africa (2005). 74 Kigali Declaration (2005).

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government in Africa and to identify action for further strengthening democratic local governance in Africa. Adopted in 1999, the Declaration is a reaffirmation of Africa’s commitment to the decentralisation of central powers to sub-national levels and the democratisation of local government and was a significant step towards decentralisation. However, just like the Kigali Declaration, the Victoria Falls Declaration is ‘soft law’ and is not binding to signatories but depends on the commitment of State parties to adopt the normative framework contained in the Declaration. In addition, the Declaration urges sub-Saharan African governments to enact and adopt legislation that provides for decentralisation and the devolution of power to promote local democracy.75 Given that Zimbabwe was part of the group of states that signed the Declaration, it has an obligation to recognise the provisions of the Declaration.

Critical Features of Democratic Governance The Victoria Falls Declaration is informed by the principle of devolution as a way of enhancing and strengthening the growth of local democracy. Under the Victoria Falls Declaration, signatory states are required to commit themselves to the promotion of democracy and good political governance and enhance the accountability of public office holders.76 In addition, the Declaration places vital importance on decentralisation in local governance and recognises the role that communities play in strengthening democratic institutions. Furthermore, the Declaration encourages states to enact legislation to: ¾ to devolve power and responsibility to lower echelons, promote local democracy and good governance, with the ultimate objective of improving the quality of life of the people; 77 ¾ be directed towards local government structures, which are representative of, and accountable to, all sectors of the local population, including marginalised and disadvantaged groups;78 ¾ be directed to levels of local government structures, which enable effective community participation in local governance;79

75

Article 3 (1), Victoria Falls Declaration (1999). Article 3 (3). 77 Article 3 (3). 78 Article 3 (b). 79 Article 3 (c). 76

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¾ involve the transfer to local government institutions those powers and functions necessary to enable them to: provide services for the local population efficiently and effectively 80and ¾ provide a conducive environment for local economic development;81 In conclusion, the Victoria Falls Declaration identified decentralisation, devolution and community participation as salient features of democratic governance. In addition, the Declaration encouraged states to take reasonable measures to ensure that these features of democratic governance are provided in legislation. To that effect, participants concurred that there is a need for decentralisation to take place as a way of transforming local government and enhancing accountability and transparency, inclusion of marginalised and disadvantaged social groups, effective community participation and to enshrine local government in the constitutions of the countries present.82

Summary While most of the instruments explored above are ‘soft laws’, they do present a blueprint for the democratisation of local government. In addition, they are evidence of increasing levels of commitment by African states to democratise local government mostly through decentralisation and devolution. The different African instruments found common voice in calling upon their governments to enact enabling legislation to promote local democracy through electoral processes. The different instruments that were explored identified several critical features of representative democratic governance. The critical features that have been drawn from the different instruments include community participation, transparency, accountability, efficiency, inclusiveness and representative leadership. These features of democratic governance extrapolated from the instruments will form the basis for testing section 4A of the Urban Councils Act to establish the extent to which it resonates with democratic practices. In the following section, the book discusses the Zimbabwe Parliamentary Select Committee (COPAC) constitutional provisions on local government. The COPAC constitution is vital for this book because it is a ‘peopledriven’ constitution, drawn from public consultations, and is the first 80

Article 3 (d) (i). Article 3 (d) (ii). 82 Article 3(e) (i). 81

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document to represent local government as an institution with constitutionally protected powers.

The Zimbabwe Parliamentary Select Committee (COPAC) Constitution Introduction The political and economic crises of the 1990s in Zimbabwe and the disputed elections of 2008 led to the signing of the interparty Global Political Agreement (GPA)83 which paved way for the formation of the government of national unity (GNU) or Inclusive Government in 2009. The Inclusive Government was provided for in the Global Political Agreement as a three-year transitional political arrangement during which various political reforms would be implemented, including the drafting of a new constitution 84 for the country. This is how the COPAC Constitution came into being after nation-wide public consultations by an interparty parliamentarian committee - the Parliamentary Select Committee (COPAC). Hence the resultant constitutional document is referred to as the COPAC Constitution. The public consultations commenced in July 2010 and went on until March 2011. During the period from April 2011 up to July 2012, members of the COPAC undertook the task of writing up the constitutional draft by interpreting findings from public consultations. The document that resulted from these public consultations came to be known as the COPAC Constitution. The draft constitution was eventually taken to a referendum on 16 March 2013 and sailed through Parliament before being ratified by the State President shortly after the referendum. The adoption of the COPAC Constitution was the last step towards Harmonised Elections which were slated for the 31 July 2013. This section provides a detailed discussion of local government provisions of the COPAC Constitution contained under section 1485 which has helped to transform the local government system in Zimbabwe. The provisions of the COPAC Constitution on local government are explored in this book to determine the extent to which the new constitution provides for representative local governance. A comparative analysis of the COPAC Constitution provisions on local government and those extrapolated from different instruments are 83 Ndlovu-Gatsheni SJ ‘Elections in Zimbabwe: A recipe for tension or remedy for reconciliation’ 2012 Institute for Justice and Reconciliation Cape Town (IJR 2012). 84 Article VI, Global Political Agreement (2009). 85 S14, COPAC draft (July 2012).

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then used to test the extent to which section 4A of the Urban Councils Act complies with critical features of representative governance. Unpacking the COPAC Constitution provisions on local governance This section unpacks elements of local governance that are provided in the COPAC Constitution in preparation for a comparative analysis of the elements of representative democratic governance contained in the new Constitution against section 4A of the Urban Councils Act to establish the extent to which section 4A of the UCA complies with the requirements of representative democratic governance. The COPAC Constitution gives a detailed description of local government in four sections under the following headings: Devolution of Governmental Powers and Responsibilities;86 Urban Local Authorities;87 Functions of Local Authorities;88 and Elections and Local Authorities.89 Devolution of Governmental Powers and Responsibilities Under devolution, the COPAC Constitution exhibits the desire to reform local government by empowering local councils with a view to enhancing their autonomy. The provisions on devolution in the COPAC Constitution present a first attempt in Zimbabwe to provide constitutionally protected powers for local government and institutional and legislative frameworks. The local government provisions of the new constitution on local governance are unique in the history of the country because over the years, local government has been a creature of statute with no constitutionally protected powers. In addition, the comprehensive provision of local government in the COPAC Constitution provides for structures and institutions that should comprise the new local government system in the country. Most importantly, the COPAC Constitution provides for the devolution of powers from central government to local communities. In this regard the COPAC Constitution provides that: governmental powers and responsibilities must be devolved to provinces and metropolitan councils and local authorities which are competent to carry out those responsibilities efficiently and effectively. 90 86

S 14.1, COPAC draft (July 2012). S 14.11, COPAC draft (July 2012). 88 S 14.13, COPAC draft (July 2012). 89 S 14.14, COPAC draft (July 2012). 90 S 14.1 (1), COPAC draft (July 2012). 87

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In addition, the COPAC Constitution recognises the right of communities to manage their own affairs for developmental purposes. In this regard, the Constitution makes it mandatory “to recognise the right of communities to manage their own affairs and to further their development” 91

The COPAC Constitution is different to all constitutional and legislative local government provisions in the history of the country because it recognises the right of communities to contribute to local democracy primarily through the election of local council officials. The Constitution presents local governance as seeking “to enhance citizen participation in local governance”92. This is stated in the provision that “to give powers of local government to the people and enhance their participation in the exercise of State powers in making decisions that affect their lives”93.

No other legislative or constitutional framework in the constitutional history of Zimbabwe ever provided for the ceding of State powers to communities and the incorporating of communities into decision-making processes through their electing the local leadership. Consequently, the COPAC Constitution recognises the importance of devolution by empowering local councils and local communities through the “transfer [of] responsibilities and resources from national government in order to establish a sound financial base for each provincial and metropolitan and local authority”94

Urban Local Authorities The COPAC Constitution also makes specific reference to urban local governance. It provides that the primary purpose of urban local councils is to represent and manage the affairs of people in urban areas.95 In addition, the provision recognises the importance of elected councillors in the management of urban council affairs by stating that 91

S14.1 (2) (d), COPAC draft (July 2012). S14.1 (3) (d), COPAC draft (July 2012). 93 S14.1 (2) (a), COPAC draft (July 2012). 94 S14.1 (1) (2) (f), COPAC draft (July 2012). 95 S14.11 (1), COPAC draft (July 2012). 92

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Chapter Two “urban local authorities are managed by councils composed of councillors elected by registered voters in the areas concerned”96

The new Constitution does not make any reference to the appointment of councillors by local communities or councils. This provision reaffirms the need for community participation in the election of local leadership. Functions of Local Authorities This is one of the most important provisions of the COPAC Constitution with regard to the establishment of autonomous local councils. The Constitution provides for the creation of autonomous local councils. The draft recognises that: “a local authority has the right to govern on its own initiative, the local affairs of the people within the area for which it has been established, and shall have all the powers necessary for it to do so”97

This provision is confirmation that the COPAC Constitution recognises the importance of the autonomy of local authorities. In addition, this provision recognises and acknowledges the importance of investing power in local authorities to represent their interests. Moreover, the Constitution reaffirms and recognises that a locally elected leadership understands community needs better than those individuals appointed to local councils, a trend that had become common in the old local government system which was governed by a plethora of statutory instruments which empower the Minister responsible for local government to make arbitrary decisions on the operations of local councils. This is the major difference with the new constitutional provision on local government. The new Constitution has therefore sought to curtail the practice of appointing individuals, thereby allowing any individual intending to be in local councils to go through the electoral process. Elections and Local Authorities The COPAC Constitution further recognises the importance of locally elected councillors in local councils and stipulates when (and how) as well as under what circumstances these should be elected into office.98The Constitution reaffirms the view that councils should be established for 96

S14.11 (2), COPAC draft (July 2012). S14.113 (1), COPAC draft (July 2012). 98 S14.14 (1) COPAC draft (July 2012). 97

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every locality and that the respective communities should be responsible for the election of local council officials to administer the affairs of the communities.99 The Constitution also recognises the fact that mayors should be appointed by those councillors elected to represent different wards in council100, a provision which seems to have been retained from the previous legislation. Before the amendment of the legislation on the election of mayors, the situation was that these were called Executive Mayors and were elected by the local communities.

Overview The COPAC Constitution exhibits elements of democratic governance, providing for the election of local councillors as well as mayors and other public office bearers. However, for technocrats and other officials where expertise is required, these are appointed on merit through the interview process. The new Constitution also recognizes the role of communities in determining the choice of local leadership, by recognising the significance of elections and elected leadership. Most importantly devolution is provided for and is an acknowledgement that the transfer of powers and functions from the centre should help to facilitate the participation of communities in decision-making processes with limited central government intervention.

Summary of provisions of international instruments and the COPAC Constitution The author has reviewed different international and regional instruments as well as the COPAC Constitution to establish a normative framework for representative democratic governance. Below is a table presenting a summary of the critical features of representative democratic representative governance. The table presents those critical features of democratic representative governance that apply to Zimbabwe and legislative framework to which Zimbabwe is a member or affiliate.

99

S14.14 (2) COPAC draft (July 2012). S14.14 (2) (a), COPAC draft (July 2012).

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UN HabitatGood Urban Governance Index (UGI)

Charter for Popular Participation in Development and Transformation (CPPDT)

Chapter Two Summary of provisions and critical features of representative governance Provides an index and regulatory framework for good local governance and seeks to establish how local action can improve the quality of urban governance. Advocates for human rights, nondiscrimination and inclusion, gender equity and marginalised groups. Advocates for a participatory approach to governance.

Elements of representative governance

Relevance for Zimbabwe

Calls for elected councillors and elected mayors who should be accountable to the communities who elected them into office

Should align its local government policy in accordance with the UGI in coming up with councillors

Calls for full appreciation of the role of popular participation in decision-making processes

Should consider the role of residents in appointment of councillors of election of such officials. Zimbabwe is a member and is bound by the terms of the Charter Local authorities should be elected by local communities Zimbabwe is a signatory to the Charter and is obliged to abide its terms

African Charter on Democracy, Elections and Governance (ACDEG)

Encourages democratic governance through transparent electoral processes at any level of government.

Provides for the decentralisation of power to democraticallyelected local authorities as provided in national laws

All Africa Ministerial Conference on Decentralisation (AMCOD).

Advocates for devolution of government structures to provincial and local levels.

Calls for decentralisation and deepening of local democracy.

Zimbabwe is a member of the UNHabitat

It is imperative to deepen local democracy through decentralisation and devolution Zimbabwe is a participant.

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The United Cities and Local Governments of Africa (UCLGA)

Advocates for African unity through a united local government framework and urges nation states to enact legislation to promote such unity of purpose.

Calls for promotion of democratic principles and institutions, popular participation in governance

Popular participation enhances legitimacy for local councils.

The Kigali Declaration

Provides for legal and institutional frameworks based on clear

Decentralisation and devolution of functions to different levels of government

Should consider decentralisation as the cornerstone of local democracy. Zimbabwe is a signatory and is obliged to comply with terms of the Declaration.

Advocates for limited central government interference and in local government affairs. Advocates for autonomous local government based on participatory democracy.

Recognises the role of local communities in strengthening local democratic institutions.

Communities have a role to play in enhancing local democratic institutions

Recognises the right of communities to manage own affairs Devolves powers of local governance to local communities as a way of enhancing citizen participation. Places heavy emphasis on decentralisation and devolution Advocates for democratic, transparent and accountable local governance.

Calls for devolution of powers to local councils which are elected by local residents. Urban local authorities are managed by councils composed of councillors elected by registered voters in the areas concerned

Victoria Falls Declaration

The Zimbabwe Parliamentary Select Committee (COPAC) Constitution

Zimbabwe is a member of the UCLGA and draws from the recommendations of the body.

Zimbabwe is a signatory to the Declaration.

The COPAC Constitution once passed at the referendum will become a constitution with binding provisions. Local government will be presented as an institution with constitutionally-protected status

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Normative Values Emerging and COPAC Constitution Several critical values of representative democratic governance have emerged from the exploration of international instruments and the COPAC Constitution. The common elements of representative governance identified are: decentralisation/devolution (where power is transferred to the sub-national level to make autonomous decisions); local democracy (where local people contribute to decision-making processes within their areas); inclusiveness (where every social group is involved in making decisions that affect their lives); accountability where local government and its officials (both elected and appointed) should be accountable to the community it serves; transparency (where all decisions are clear and apparent); representative leadership (where political leadership should represent the needs of the citizens); and citizen participation (residents should play an active role in decision-making processes). The different international, regional and national instruments that were reviewed by the author identified devolution as being at the epicentre of the implementation of critical features of representative democratic governance. In addition, different instruments have highlighted the importance of cultivating and inculcating a culture of local democracy through the election of representatives, community participation, transparency and accountability. The COPAC Constitution calls for the recognition of special interests and equity in democratic governance. Despite the call for the devolution of functions to local authorities, cooperation between different levels of government should exist. Under devolution, the author discusses the fact that powers and functions should be transferred to local communities to make decisions that impact on their livelihoods. In local democracy, local communities should take part in the election of a local leadership that should represent their community’s interests. The election of local leadership should be transparent. In addition, the elected leadership should be accountable to the local communities whose interests they represent. In the election of a local leadership, cognisance should be taken of the need to represent special interests. The composition of the elected leadership should also be inclusive of marginalized groups such as minorities and women. Effectiveness and efficiency are components of democratic governance which help in achieving developmental objectives. In local governance effectiveness and efficiency seek to ensure that objectives benefit communities through the economic use of resources. In the different instruments that were reviewed, it was noted that cooperation between the different spheres of government help in the effective implementation of

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policies. It is on the basis of these values that the practice and implementation of section 4A will be tested to establish the extent to which it complies with international benchmarks as provided by different instruments and the COPAC Constitution. The next chapter unpacks the provisions of section 4A of the Urban Councils Act to establish the extent to which the practice and implementation of legislation complies with representative democratic governance.

CHAPTER THREE LOCAL GOVERNMENT IN ZIMBABWE AND THE APPOINTMENT OF SPECIAL INTEREST COUNCILLORS

Introduction This chapter of the book mainly focuses on the genesis and chronological development of the local government system in Zimbabwe from the colonial times to recent local government reforms as manifested in the new COPAC Constitution. Subsequently and most importantly, this section discusses the local government system in Zimbabwe, local government structures and institutions, local councils in rural and urban areas, the election of local council officials as well as political leadership that has a role to play in local community development. The emphasis of this chapter is on unpacking and discussing different parts of section 4A. This chapter discusses the background to the appointment of special interest councillors and the content, practice and implementation of section 4A of the Urban Councils Act. The chapter then presents a critique of the content of the legislation and the extent to which the practice and implementation of the legislation impacts on local democratic governance. The thrust of this section is to discuss the role of local council leadership (appointed or elected) and how they impact on local autonomy and representative democratic governance.

The History of the Local Government System in Zimbabwe The history of local government in Zimbabwe dates back to the 1890s with the arrival and subsequent colonisation of the country by the British South Africa Company (BSAC). This form of local government complemented the existence of traditional forms of local government systems that had been presided over by traditional chiefs from time immemorial. The control of local populations and Native Councils was achieved through the

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enactment of a plethora of different pieces of legislation through which different structures and institutions such as advisory boards were created.1 Different legislation for controlling rural and urban areas were enacted, but the most important concerned how the increasing urban population groups was to be controlled as well as the provision of services in the growing townships.2 Hence the first legislation and structures for the control and provision of services was implemented in urban areas with those pertaining to rural areas being enacted later. The first local government structure was the Salisbury Sanitary Board, established in 1891 under Ordinance 2. Salisbury was the capital city and the economic hub of the country. Other advisory boards in other urban centres came later to provide a strict monitoring mechanism for African affairs. All the advisory boards fell under the direct control of the District Commissioner who represented the political dispensation in the locality.3 These structures ‘laid the foundation for a highly centralised system of local governance based on policies of white supremacy and characterised by the imposition of sub-standard and centrally defined programmes on Africans and Native Councils’.4 To further institutionalise white control of native affairs, a plethora of other local government legislation was to follow. This included the Matabeleland Order in Council (1894), the Municipal Law (1897), the Land Apportionment Act (1930), the Municipal Act (1930) and the Urban Councils Act (1973). Through the Matabeleland Order in Council (1894), Matabeleland was made a British protectorate under direct British control and protection. The Municipal Law of 1897 created municipal structures in different urban centres with the major motive being to monitor the black urban population, in addition to providing basic needs such as appropriate sanitary conditions as well as housing quarters and recreational facilities. The Urban Councils Act sought to provide urban governance institutions and structures for providing service delivery to those in urban areas, such as water, electricity housing and other needs for the increasing black population. However, the provision of such services was done along racial lines. Through these different pieces of legislation, central government was able to monitor and control operations of local councils and Advisory Boards. Although Advisory Boards were established in African townships, these played a purely consultative role, and were not intended to empower

1 Yoshikuni T African Urban Experiences in Colonial Zimbabwe: A Social History of Harare before 1925 (Harare: Weaver Press 2006) 15. 2 Mushamba (2010) 13. 3 Yoshikuni (2010) 23. 4 Madhekeni & Zhou (2012) 4.

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the local authorities or residents.5 This plethora of legislation signalled the commitment of the colonial administration to entrenching their control of the indigenous population. The predominant characteristic of these pieces of legislation was the level of control of central government over local affairs.

Post-colonial Local Government System and Administration It would not be proper to discuss the local government system in Zimbabwe without elaborating on the different structures and institutions that comprised local government in the country at different times in the history of the country and how such structures have shaped the present day local government system. The issues that will be discussed are the local government institutions that administer urban and rural affairs, the personnel involved with local government administration, the electoral system in local government, the powers and responsibilities of different structures and institutions, as well as significant institutions such as mayors and municipal managers and/or those that are directly involved within the higher echelons of municipal administration. The author will also attempt to locate the role, place and influence of the MLGRUD in the cited different aspects of local governance. Local government institutions The post-colonial system of local government in Zimbabwe inherited several elements of the colonial local government system, notably the classification of rural and urban areas, governed by the respective rural and urban councils through the appropriate pieces of legislation. At independence the new dispensation sought to reform local government by creating a single local government ministerial portfolio by re-classifying former African councils as district councils and urban councils. In addition, a new set of local government legislation was enacted for district councils and urban councils, namely the Rural District Councils Act6 and the Urban Councils Act7 respectively. Through these pieces of new legislation and accompanying institutional frameworks the system enabled central government to retain dominion over local authorities.8 Additional 5

Chatiza (2010) 8. Chapter 29:13, Rural District Councils Act (1996). 7 Chapter 29:15, Urban Councils Act (1996). 8 Yoshikuni T African Urban Experiences in Colonial Zimbabwe: A Social History of Harare before 1925. (Harare: Weaver Press 2006). 6

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specialised subsidiary legislation was enacted to strengthen central government’s grip on local authorities as well as on citizens in general. Some of the subsidiary legislation included the Chiefs and Headmen Act9, Communal Land Act10, the Provincial Councils and Administration Act, the Customary Law and Local Courts Act11 and the Traditional Leadership Act.12 Each of the cited pieces of legislation sought to monitor the operation of the respective institutions as central government exerted its influence through relevant officials appointed to execute central government objectives. The implementation and practice of each piece of legislation falls directly under the control of the Minister of Local Government, Rural and Urban Development (MLGRUD). The MLGRUD was empowered to oversee the implementation of all the aforementioned local government legislation. Taking charge of all of the above pieces of legislation has enabled the MLGRUD to exercise enormous executive powers and play a domineering role over all local government activities and local council operations by facilitating central government’s grip on local councils in general and residents in particular. Urban Councils Urban councils were created to administer and oversee the affairs of urban areas. Currently there are 30 urban councils in the country. Urban councils are arranged in hierarchical order or levels. Those in level 1 are city councils which are 7 in number. Level 2 are municipalities (9), and level 3 are town councils (10). Lastly, those in level 4 are local boards which are 4 in number and which are found in emerging towns. Through regular review by the person of the MLGRUD, the status of each urban area (including the promotion to the next level) is determined by the MLGRUD. Legislation provides for the establishment and upgrading and/or promotion of urban councils to the next level.13 The upgrading of urban councils is done by the Minister in terms of legislation.14 Urban councils are empowered to make bylaws that regulate socio-economic activities within their areas of jurisdiction, in terms of existing

9

Chapter 29:01, Chiefs and Headmen Act (1990). Chapter 20:04, Communal Land Act (1990) 11 Customary Law and Local Courts Act (No. 2) of 1990. 12 Traditional Leadership Act of 1998; Zimbabwe Institute Local Government: Policy Review (Cape Town 2005). 13 S 4 (1) (14), Urban councils Act [Chapter 29:15]. 14 S 14 (3), Urban Councils Act. 10

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legislation.15 The bylaws may regulate the provision of health and education, as well as other aspects of service delivery, including housing and the provision of clean drinking water.16 In all these functional areas, councillors play a pivotal role in linking up local residents with the local council, keeping residents abreast of activities and programmes of the local councils and representing the interests of residents in council so as to enable residents to influence decision-making processes in local councils. Councils are composed of both elected ward councillors and appointed special interest councillors.17 To facilitate participation in local council debates and to better transact business, councils establish specialised administrative committees to deal with different aspects of local governance.18 Committees such as Health, Finance, Housing, Environmental, are some of the common structures that exist in different urban and rural councils. Rural District Councils Rural and district councils are established in terms of the appropriate legislation.19 These councils administer the affairs of rural districts across the country. There are a total of 60 district councils across the country. The current district councils are a result of the amalgamation of the former African and European Councils that existed in rural areas before 1980. This amalgamation of different local councils was in line with the democratic requirements of inclusiveness and equity (as well as tolerance) among different racial groups. Among the major functions of rural district councils are the demarcation of ward and constituency boundaries as well as the imposing of taxes by means of the introduction of the relevant legislation.20 In addition, as with urban councils, rural district councils have powers to make bylaws for the administration of the affairs of district areas and the provision of socio-economic services.21 Just like urban councils, rural district councils are managed by elected councillors in addition to appointed special interest councillors.22 Like urban councils, rural councils also have specialised committees that facilitate the 15

S 102, 145, 227 & 232, Urban Councils Act. S 228, Urban Councils Act. 17 S 4 (1), Urban Councils Act. 18 224 (50), Urban Councils Act. 19 S 8, Rural and District Councils Act [Chapter 29:13]. 20 S 6, Rural and District Councils Act. 21 S 88, Rural and District Councils Act . 22 229 (2), Rural and District Councils Act. 16

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participation of councillors in council business for the subsequent achievement of council objectives. However, the stranglehold of central government on the operations of both urban and rural district councils is reflected by the fact that the Minister may dissolve such councils in the event of any irregularities such as maladministration or corruption and appoint a Commission to run the affairs of the affected urban or rural councils in terms of legislation.23 Elections of local council officials Elections play a vital role in determining the local leadership of local councils as well as electing those who are required to execute different operational tasks. All electoral processes in the country including local government elections are conducted by the Zimbabwe Electoral Commission in terms of appropriate legislation.24 All electoral processes in the country have been harmonised and as such are carried out simultaneously at all of the different levels of government, namely the Presidential, Parliamentary, Senatorial as well as Local Government portfolios. The Zimbabwe Electoral Act oversees the conduct of elections, including the election of councillors. Local councils are composed of ward councillors elected by residents and special interest councillors appointed by MLGRUD in terms of legislation.25 Below is a discussion of the election and appointment of local council councillors. Elected councillors are elected by residents in the wards where the incumbents reside.26 The incumbents are elected to represent the interests of those in their constituencies or wards. There are two categories of appointed councillors. The appointed councillors can either be caretaker councillors27 or special interest councillors.28 Ideally, in both cases the appointment of special interest councillors may be based on the expertise or skill that the prospective appointee in a designated interest area brings to the local council. Caretaker councillors are appointed by the Minister in urban areas. These should not exceed three councillors where there are no elected councillors or in the event that the incumbent has been suspended, imprisoned or is suffering from ill health.29 The caretaker councillors may 23

S 207 (1), Rural and District Councils Act. S 104 (1), Urban Councils Act. 25 S 4A, Urban Councils Act. 26 S 4, Urban Councils Act 27 S 80, Urban Councils Act. 28 S 4A, Urban Councils Act. 29 S 41 (7), Urban Councils Act. 24

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be appointed on a temporary basis to take charge of a council ward. The qualifications for appointment as a caretaker councillor include owning immovable property in the municipal area such as a house or business.30 In some cases, the Ministry of Local Government, Rural and Urban Development may dispatch its own officials to take charge in a specific local council until new councillors are elected to fill the vacancies.31 The other group of appointed councillors is known as special interest councillors and unlike the caretaker councillors, special interest councillors are appointed on the basis of skill or expertise in a specific area of relevance to local government. Appointments made on the basis of the possession of skills recognize the possible contribution that the incumbents can make in local councils to represent the interests of designated groups, such as those in business, the disabled and the different genders. Those appointed on the basis of expertise may be required to possess professional credentials that would enable them to competently represent the interests of their designated fields, such as those in education, the legal and medical fields. This means that although the appointment to such specialized fields is at the discretion of the Minister, it is imperative that the Minister appoints individuals with the relevant academic and/or professional credentials and experience. It is the practice of appointing special interest councillors and the implementation of the relevant legislation which is the focus of this book. One of the most important elected council officials is the mayor who is selected from amongst the elected councillors at the first sitting of the council.32 Councillors are either elected or appointed. In terms of legislation, once ward councillors are elected they may then elect a mayor33 and deputy mayor34 from among themselves, which is in line with democratic practice. The position of mayor used to be an executive portfolio but changes to local government legislation35 have rendered the portfolio ceremonial.36 Currently the position of mayor is ceremonial, which means that the incumbent does not have executive powers to make decisions, but has to consult with elected councillors. The major functions of the mayor are:

30

S 104 (1) (b), Urban Councils Act. S 80 (1), Urban Councils Act. 32 S 48 (1), Urban Councils Act. 33 S 38, Urban Councils Act. 34 S 103 (1) (b), Urban Councils Act. 35 S 103 (1), Urban Councils Act. 36 S 87, Urban Councils Act. 31

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to supervise and co-ordinate the affairs of the council concerned; 37 control the activities of the employees of the council; 38 preside over all meetings of the councils’ executive committee; 39 sign orders, notices and documents that require execution or authentication40 as well as; ¾ exercise any function that the council may delegate to him/her.41 ¾ ¾ ¾ ¾

These functions put the mayor at the epicentre of local council administration and represent the incumbent as a crucial cog in the implementation of local council policies and ministerial directives. The details of the appointment of special interest councillors in urban local councils will be discussed in detail in the next section. Political leadership In the pre-colonial era, traditional chiefs were the de facto local leadership and were in charge of traditional institutions. This involved some form of elementary local government system but one that later fell under the direct control of the colonial administration. At the attainment of political independence the new dispensation inherited the centralised local government structure where all major decisions of local authorities were directed from the centre. At independence, the new dispensation adopted the political party system, which resulted in the politicisation of the local government system. The politicisation of local government is characteristic of elected leadership in political party systems as political parties seek to influence local government policies and local council decision-making processes. The politicisation of local councils is rooted in the desire by political parties to influence local government policies.42 It has been argued that different political parties seek to manipulate their popularity in rural or urban areas to promote their policies and eventually gain political mileage.43 Having been in power for most of the post-colonial era, the Zimbabwe African National Union- Patriotic Front (ZANU PF) set about imposing local leadership in local government structures and institutions 37

S 64 (1) (a), Urban Councils Act. S 64 (1) (b), Urban Councils Act. 39 S 64 (2) (a), Urban Councils Act. 40 S 64 (2) (d), Urban Councils Act. 41 S 64 (2) (h), Urban Councils Act. 42 Yoshikuni (2006). 43 Helmsing (2004). 38

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across the country in the 1980s and 1990s until reforms to the constitution and local government were initiated and eventually implemented from 2009. In cases where local council elections were held, candidates were imposed on residents44 unlike in the new constitution where candidates are elected by local communities. Local autonomy Local autonomy has dominated local government as it sought to shape the way local communities influence the local decision-making and democratic governance processes. Jordan (1984) has noted that the existence of autonomy in local affairs is a sine qua non for the continued existence of local democracy.45 Threats to local autonomy can come either through direct interference by central government or through direct interference by the Minister of Local Government.46 For example, in terms of legislation, the Minister has the power to appoint the senior staff of all local councils in the country.47 Either way, interference curtails local autonomy as instructions are handed down from either central government or the Minister. From the establishment of the first structures of local government in colonial Zimbabwe, the Salisbury Sanitary Board and later the Victoria Advisory Board, it was evident that the concept of local autonomy would be difficult to introduce because the Advisory Boards fell under the direct control of the District Commissioner. The legislation accompanying these Advisory Boards put the District Commissioner at the epicentre of all local government activities.48 The post-colonial local government legislation does not differ much from colonial legislation, as it allowed for the direct interference of the Minister in the local affairs and the stifling of local autonomy. The appointment of special interest councillors originates from the desire by central government to provide strict monitoring of local councils by deploying the Minister to make interventions in local council operations. These interventions came in the form of a direct involvement in the appointment of senior local government personnel, the interpretation of statutory instruments and the oversight role played by the Minister in the general operations of local councils, be they urban or rural. The wide-ranging, delegated powers of 44

Madhekeni (2012) 12. Jordan JD Local Government in Zimbabwe: An Overview’ Mambo Occasional Papers-Socio-Economic Series No. 17 (1984) 89. 46 Jordan (1984) 89. 47 S 132/133/134, Urban Councils Act. 48 Madhekeni & Zhou (2012) 21. 45

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the Minister to make appointments to ‘rectify any shortcomings in the local governance system’49 have resulted in additional appointments to local councils as the Minister deems necessary. These decisions by the Minister have had an impact on the operations of local councils in terms of decision-making and participatory budgetary processes. Below is a discussion of one such case of Ministerial interference in the local affairs of councils through the appointment of special interest councillors in terms of section 4A of the Urban Councils Act.

Background to the Appointment of Special Interest Councillors in Local Government The practice of appointing council officials to local councils is not a new development but has existed during the colonial times. From 1891 when the Salisbury Advisory Board was established, the practice of appointing council of officials was introduced when in the same year a Board of Management was established to run the affairs of the emerging town of Salisbury. The Board of Management was composed of four elected members and three members appointed by the British South Africa Company which was the Company responsible for the administration of the town.50 From that time the practice of appointing local council officials has co-existed alongside a similar practice of electing council officials. In the current local government system the appointment of special interest councillors has attracted much controversy and attention and forms the basis for this book. In successive advisory boards, the local government systems continued to appoint African councillors to advise the white officers on the status of African townships. Since then the appointment of councillors by central government has become common practice. The current local government system provides for the appointment of special interest councillors in both rural 51 and urban councils 52 by the MLGRUD and the incumbents should exhibit high level skills, expertise and/or relevant experience in designated interest areas as has been discussed above.

49

Jonga & Chirisa ‘Urban Local Governance in the Crucible: Empirical Overtones of Central Government Meddling in Local Urban Councils Affairs in Zimbabwe’ 2009 Theoretical and Empirical Researches in Urban Management 3 (12) 168. 50 Chakaipa, S (2010) 35. 51 S 80, Rural and District Councils Act (1996). 52 S 4A, Urban Councils Act (2006).

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Although most of the Ministerial appointments have not attracted much attention, it was the introduction of the appointment of special interest councillors in rural district councils53 that showed such appointments could be used for political reasons. The appointment of special interest councillors became a continuous process of ‘establishing grassroots participation structures, and providing a framework for coordinating government institutions’ participation in rural development’.54 However, it faced a lot of criticism from affected rural communities because of the lack of transparency and accountability. Mushamba has argued that despite the fact that decentralisation enhances democracy and increases efficiency in service delivery, 55 much of the decentralisation process has been implemented in rural areas.56 In the Zimbabwean case, rural areas have been a political stronghold for ZANU PF over the years and as such appointing special interest councillors would help to consolidate the ZANU PF support base in rural areas.57 Having been in power for a considerable amount of time, ZANU PF has sought to use the same practice of appointing special interest councillors in urban areas to bolster their presence in urban local councils. To be able to appoint special interest councillors in urban local councils, Parliament, at the instigation of ZANU PF, amended the Urban Councils Act in 2008 to enable the Minister to appoint special interest councillors in urban areas as had been common practice in rural and district councils in terms of section 4A of the Urban Councils Act of 2008. The section below unpacks the content of this piece of legislation. Background to the enactment of section 4A of the Urban Councils Act The practice of appointing councillors to local councils has been in existence beyond the 1980s when Zimbabwe attained political independence. The practice was put in place as part of the post-colonial local government reforms initially implemented in rural areas. However, 53

S 11 (b), Rural and District Councils Act (1996). Chatiza (2010). 55 Government of Zimbabwe Local Governance for Poverty Reduction: The case of Zimbabwe Paper prepared for presentation at the Africa Governance Forum, Maputo, May 23-25 2002. 56 Mushamba S (2010) 5. 57 Hammar A The making and unma(s)king of local government in Zimbabwe’ in Zimbabwe’s Unfinished Business: Rethinking Land, State and nation in the Context of Crisis (eds) Hammar A, Raftopoulos B and Jensen S (Harare: Weaver Press 2003). 54

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the practice was only implemented in district rural councils in terms of the District and Rural Councils Act58. The practice was introduced at a time when ZANU PF was the sole political party with very little or no opposition to its hegemony as has been discussed above. The appointments were therefore made to consolidate ZANU PF’s hold on political power in rural areas as has been discussed above. The councillors were appointed on the basis of expertise and were known as ‘special interest’ councillors responsible for specialist areas such as the education, health, the disabled, women’s affairs as well as legal issues. It should be noted that because ZANU PF was the main political party then, it dominated local government both in rural and urban councils. It was not until the 1990s that ZANU PF began to face a threat to its political hegemony from emerging political parties, notably the Zimbabwe Unity Movement (ZUM) and the Movement for Democratic Change (MDC), the latter being a broad based political movement which became increasingly popular, mostly in urban areas, from 2000 onwards. This emergence of the MDC and its subsequent domination of urban councils in the elections that were conducted in the elections of 2000 enabled it to dominate urban (and in some cases rural) local councils thereby putting ZANU PF’s political hegemony under threat. Further reforms to the Electoral Act led to the transformation of the electoral system in which the electoral process was harmonised. On the eve of the 2008 Harmonised Presidential, Senatorial, House of Assembly and Local Government Elections, the Urban Councils Act was amended by the different parties in government, leading to the amendment of the Urban Councils’ Act on 8 April 2008, and the eventual enactment of section 4A of the Urban Councils Act. Through statutory instrument 79/2010, which gave rise to section 4A of the Urban Councils Act, the Minister of Local Government is vested with authority to appoint and fix the maximum possible number of special interest councillors for every urban area in the country, without consulting the residents in the ward.59 Under this legislation, the MLGRUD makes additional appointments to urban councils. The introduction of special interest councillors was based on the policy rationale that the new elected councillors need to work alongside experienced individuals in local councils and to represent the interests of marginalised groups in society. In the next chapter the author discusses the practice and implementation of legislation of appointing special interest councillors by the MLGRUD in 58

S 11, District and Rural Councils Act . Veritas (2010) Urban Councils to get special interest councillors – Bill Watch 15/2010.

59

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terms of legislation60 and the challenges attendant on this. The detailed media chronicles of dismissals and suspensions of different councillors and mayors are evidence of the power that the Minister wields in determining who should be councillor and who should not. Provisions of section 4A of the Urban Councils’ Act The amended section 4A of the Urban Councils Act is made up of three sub-sections. Firstly, the amendment stipulates the quota of appointed special interest councillors in each urban local council. Secondly, the legislation highlights to whom the appointees should be accountable in addition to determining how the incumbents should relate to the MLGRUD. In addition, the legislation provides for the benefits that should accrue to the incumbents in their capacity as councillors, although they should not be involved in the voting process. Below are the full provisions of section 4A of the Urban Councils Act: Subject to this Act, every municipal and town council shall consist of(1) (a) One elected councillor for each ward of the council area; and (b) Such number of appointed councillors representing special interests, not exceeding one-quarter of the number of elected councillors, as the Minister may fix in respect of the council by statutory instrument, and who shall hold office during the pleasure of the Minister. (2) Appointed councillors shall participate in the business of the municipal or town council to which they are appointed and perform the same functions and be entitled to the same benefits in every respect as if they were elected councillors, except that they shall not have a vote at meetings of the municipal or town council concerned.

Unpacking Section 4A of the Urban Councils Act In this section the author unpacks the implementation of the legislation and how it resonates with representative democracy. In the discussion of the legislation, the author highlights provisions of the legislation, notably deciding on the numbers to be appointed and elected; selecting candidates for appointment based on interest; deciding on tenure of incumbents; and the status of appointed special interest councillors. 60

S 4A, Urban Councils Act.

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Deciding on the Numbers Section 4A (1) (a) provides for the election of at least one ward councillor for each ward. This is in line with representative democracy where residents are able to elect local leadership. This section of the legislation also recognises the right of residents to elect leaders of their own choice. In this section there is no evident influence of the MLGRUD in the election of councillors, or if such influence is there, it is limited. Such election of local councillors is legitimate as it is (or should be) done in terms of the Zimbabwe Electoral Act.61 This section of the legislation in turn stipulates the number of councillors to be elected for each ward. The Act is thus important in that it sets the foundation on which the number of special interest councillors is based. However, the Minister may deviate by going over the 25% threshold since he/she is empowered to fix the number of those individuals that may be appointed as special interest councillors62, although the legislation fixes the threshold of the appointees to not more than 25%. Once the councillors are elected, the Minister would then appoint more than 25% of elected councillors.63 This means that the higher the number of elected councillors in a constituency, the higher the possible number of appointed special interest councillors, although the Minister is not obliged to make the required number of appointments. The Minister may appoint less or exceed the 25% threshold as shown in the table below, which reveals one of the major weaknesses of giving wide-ranging discretion to the Minister to implement the legislation. This element of discretion on the part of the Minister to fix the number of appointed councillors could be the reason for different numbers of appointed special councillors in urban councils that possess the same number of elected councillors. The legislation enables the Minister to ‘discretely’ determine the number of special interest councillors, which should not exceed one quarter of the elected councillors. This means that the Minister may decide to appoint less or an equivalent of a quarter of those elected to council. More details in this regard are presented under paragraph 3.4.2 which presents a survey of 20 urban councils showing different numbers of appointed special interest councillors in different local councils.

61

Article 23 (1), Zimbabwe Electoral Act (2006). S 4A (2), Urban Councils Act. 63 S 4A (2), Urban Councils Act. 62

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Selecting candidates based on expertise Section 4A (1) (b) calls upon the MLGRUD to make the necessary appointment of individuals with the special skills (and in some cases with relevant expertise as with former mayors). Although section 4A (1) (b) mandates the MLGRUD to make the appointments, it does not provide the guidelines or criteria for such appointments. The process of appointing councillors is left to the discretion of the Minister. However, practice has shown that the common fields that have been considered as special interest areas include skills and expertise (experience) in education, health, disability, women and other fields that the Minister may from time to time identify or deem necessary for inclusion in local councils. In addition, the legislation does not provide for ways of determining or establishing the level of skills and/or expertise of the appointees. This means that the Minister may appoint anybody as long as, in the Minister’s judgment, the individual is suitable, which in practice may result in the appointment of friends, relations or other corrupt appointments. Thus it is the Minister who makes the final decision without being restrained by any statutory criteria. Thus also there is no guarantee that the appointed special interest councillors indeed possess the required expertise or indeed represent special interests. Deciding on the length of the tenure In addition to providing for the selection of candidates for appointment as special interest councillors, section 4A (1) (b) also decides on the length of tenure of the appointees. The appointed councillors shall hold office during the pleasure of the Minister.64 This means that they may operate as long as the Minister wants them to and can be dismissed or have their tenure renewed or terminated, depending on whether they are performing well or not or whether the way that they discharge their duties pleases the person of the Minister. This also implies that whether or not appointees operate within the law is a subjective matter which the Minister has to decide. The fate of special interest councillors is thus in the hands of the Minister to retain or dismiss them.

64

S 4A (2), Urban Councils Act.

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Status of the appointed special interest councillors Section 4A (2) empowers the appointed special interest councillors to take part in municipal business and to perform the same functions as their elected counterparts. In addition, the appointees are entitled to the same benefits as their elected counterparts, with their salaries being paid by the local authority and not by the Minister who made the arbitrary appointments. However, the major difference between appointed and elected councillors revolves around voting rights. While elected councillors can vote and be involved in the formulation and enactment of municipal bylaws, appointed special interest councillors do not have the right to vote. Elected councillors can also be elected as mayor unlike special interest councillors who do not qualify to be elected to the office of mayor since only elected ward councillors can be nominated and eventually elected by fellow elected ward councillors. Despite the fact that the appointed special interest councillors have no voting rights, they are influential in terms of providing expertise and skills in their designated areas. In addition, appointed councillors enjoy the personal recognition of the Minister, unlike the elected councillors who are chosen by the local communities. Therefore they can be regarded as vital to the implementation of policy in local councils due to their expertise and skills in local government. Their presence can also enrich deliberations and policy formulation in local councils.

Justification for the Enactment of Section 4A of the Urban Councils Act It may be noted that section 4A (2) brings up questions of the desirability of special interest councillors, given that they are non-elected individuals, enjoying similar benefits as their elected counterparts. It has been argued that their presence can be important because they contribute to debates in councils and help influence policy formulation and implementation towards specific interest groups. By virtue of their experience and expertise, special interest councillors are necessary to retain continuity of council business after the election of new and inexperienced MDC councillors.65 It may also be noted that there are several justifications for the enactment of section 4A of the Urban Councils Act. The justification for appointing special interest councillors is that such practice paves the way for promoting multi-party democracy; as a bulwark against corruption 65

Shumba P (2012) 2.

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or as a partisan practice by a dominant political party. On the other hand, there are political reasons for appointing special interest councillors in urban councils. The two positions will be discussed under separate headings, namely ‘official policy position’ and ‘political reasons’. Official policy position The argument under the official position was that since most of the elected MDC councillors were still inexperienced in the intricacies of local governance, they needed to work alongside experienced former councillors, hence the need to incorporate experienced councillors alongside them, mostly from ZANU PF. It should be noted that only ZANU PF held the position of councillors in almost all local councils because it was the only dominant political party with no challenges to its rule until 2000 when MDC councillors participated and won most local government elections. The existence of inexperienced councillors mostly from the MDC justified the need to appoint special interest councillors.

Need for Expertise in Local Council During the enactment of section 4A of the Urban Councils Act it was argued that the appointment of special interest councillors would help to integrate experienced councillors and other civic leaders into local councils to strengthen and promote balanced debate. It was envisaged that such experienced councillors and civic leaders would draw from their years of exposure to local council business. The experience of the appointed councillors would be of help to the elected MDC councillors most of whom did not have any prior local government experience. Therefore, in order to have continuity in local council business the appointment of experienced councillors, mostly ZANU PF candidates who had lost in local government elections, was justified.66

Promoting Multi-party Democracy It was argued that confining the composition of local councils to elected councillors would limit the composition of most local councils to MDC councillors who were usually the preferred political party candidates, especially in urban areas. Therefore, finding alternative ways of opening 66 Grabmore G ‘Ignorance Chombo's primary aim is to frustrate MDC councils’ New Zimbabwe Forums, 18 May 2012.

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up the composition of local councils through incorporating other political parties and constituencies without passing through the voting process would enable more voices in local councils.67 Incorporating different social groups would give voice to different sections of the local community. Despite the fact that the MDC party had won in most urban councils during this period, it was envisaged that the incorporation of individuals from other political parties would facilitate the cross fertilisation of ideas in local councils and a culture of tolerance among different political parties. It was further envisaged that having one political party in council would not instil the spirit of multi-party democracy. The appointment of special interest councillors coming from different political, social and economic backgrounds would not only enrich the debates and incorporate expertise within local councils, but would also promote multiparty democracy.68 In addition, the appointment of individuals from different social interest groups within local councils was envisaged to be the only sure way of ensuring representation of different social groups. Bringing in specific groups such as women, the disabled and youth would also ensure the representation of their interests in local government policy formulation and implementation. Appointing special interest councillors from these and other groups would also enable local councils to make informed policy decisions to serve the interests of different groups.

Bulwark against Corruption and Protection of Residents It was argued that special interest councillors were appointed to provide checks and balances on the performance and activities of elected councillors from the same political parties who might want to engage in corrupt practices.69 There were also claims by the MLGRUD that the enactment and subsequent implementation of section 4A was necessitated by central government’s desire to protect residents from corrupt councillors and local council excesses. The MLGRUD justified the intervention in local councils as seeking to ‘protect residents’ from the excesses of inexperienced MDC councillors.70 This is the official version of what the Minister presents as the justification for making additional

67

Shumba, P (2012) 3. Madhekeni G (2012) 23. 69 Harare Residents Trust (2012) 2. 70 This is expressed in the following newspaper report: Chombo has justified his meddling, insisting that he is protecting residents from the excesses of corrupt local authorities – most of which are run by the MDC-T. 68

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appointments to urban councils that are dominated by the MDC councillors elected in their respective wards.71 However, despite the official rationale for the appointment of special interest councillors, there are those who view such appointments as being done for political reasons. Political reasons Apart from the official policy position which states that experienced former councillors should be appointed by the Minister as a way of inserting expertise and skills, there is also another position (herein the political position) which argues that in proposing the cited legislation in Parliament and subsequently enacting section 4A and appointing special interest councillors, the MLGRUD had political motives as discussed below.

Capitalising on the Inexperience of the MDC in Local Governance to Enact the Piece of Legislation One of the most puzzling issues is how the MDC could have allowed the enactment of Section 4A when it was evident that the legislation would not only empower the MLGRUD but would also be used against MDC elected councillors. It is possible that the euphoria over the prospects of winning all electoral processes in the elections which were to be held in 2008 overwhelmed the MDC legislators to the extent that they saw no need to delay the amendment of the Urban Councils Act. It could also be that the lack of local government experience and the meaning and impact of local government legislation contributed to this oversight on the part of the MDC. In 2006, when section 4A first became operational in urban local councils, ZANU PF had been in government for over 26 years, while the MDC had never been the sole party of government. As such, it lacked government experience and tended to take things for granted, including the possible impact of section 4A on the operations of urban local councils dominated by the MDC.

71 Staff Reporter ‘Mangwana raps 'undemocratic' Chombo’’ New Zimbabwe, 25 August 2012.

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Using the Appointed Special Interest Councillors as Spies for the MLGRUD Given that most councillors in both urban and rural councils are from the MDC, the Minister may have sought, through appointed special interest councillors, to gather information on what would be going on in urban councils. With different political parties in local councils as well as experts in different fields, these councillors would also check on each other’s performances and such practice would most likely limit corrupt tendencies. It may be that the MLGRUD wanted to use the appointment of special interest councillors to gather intelligence on the proceedings in urban local councils.72 This argument has been expressed by the media as the major reason behind the suspension and dismissal of MDC councillors on the pretext that they were either corrupt or incompetent. It would only be through some of the councillors in councils that the Minister would be knowledgeable about deliberations in local councils. As a result, appointed special interest councillors could be the most likely source of information for the Minister and could enable him to decide who to suspend and eventually dismiss allegedly for ‘maladministration’ or ‘mismanagement’. ‘Maladministration’ and/or ‘mismanagement’ are subjective terms which cannot be quantified.73

Using the Appointment of Special Interest Councillors as a Way of Discrediting the MDC In addition to using special interest councillors to gather intelligence, the author has also noted that the appointment of special interest councillors could most likely be used to discredit the MDC which had dominated most urban local councils, especially from 2000. The dominance of the MLGRUD in local council decision-making processes and the operations of all local authorities could have been used to frustrate the efforts of elected MDC councillors in their endeavours to execute projects in their constituencies and subsequently curry favour with residents and eventually put the name of their political party, ZANU PF, in good public standing. As a result of the rampant suspension and dismissal of elected MDC councillors, many projects have not been completed. The deterioration of 72

The Elected Councillors’ Association of Zimbabwe (ECAZ) ‘Chombo uses councilors as spies’ The Zimbabwean, 7 August 2012. 73 Media reports have highlighted that there has been regular suspension and subsequent dismissal of MDC elected councillors as mayors as cited by the Combined Harare Residents’ Association (see Shumba 2012:2).

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services against the backdrop of the regular suspension of elected councillors has portrayed the MDC elected councillors as incompetent, with further accusations that such councillors are unsuitable to hold public office. By such behaviour, the MLGRUD has sought to weaken the MDC as a political party and discredit elected MDC councillors. The fact that the Minister does not appoint special interest councillors in some urban councils such as in Kwekwe and Chinhoyi could be due to the fact that there is no provision that sets timeframes for such appointments to be made, indicating that it is not mandatory for such appointments to be made. This lack of a timeframe calling upon the Minister to make the appointment of special interest councillors could lead to the hasty appointment of individuals with no expertise to offer.

Summary The local government system in Zimbabwe has been characterised by the domineering role of central government over local affairs through the MLGRUD. This domineering role of the MLGRUD, standing in for central government, has also frustrated cooperation between the centre and local authorities. Through pieces of legislation, the centre has been able to control and monitor local councils and in some cases frustrate them in the course of their duties. This chapter unpacked the contents of section 4A of the Urban Councils Act. The discussion of the content of section 4A indicated that the legislation provides for the election of ward councillors and the appointment of special interest councillors to provide direction, skills and expertise. In addition, the legislation empowers the MLGRUD to decide on the length of tenure and status of the appointed councillors. In all these provisions the MLGRUD plays a decisive role and is not mandated to seek a second opinion from either the local councils or residents. The implementation of section 4A is the sole decision of the Minister. There are no guidelines to direct the Minister on whom to appoint, for how long and to whom such appointees should be accountable. The official justification of appointing special interest councillors has been to augment the work of the elected councillors and to insert skills and expertise through appointing experienced individuals. In addition, in this chapter the discussion presented political reasons that are assumed to be behind the appointment of special interest councillors.

CHAPTER FOUR COMPARING THE APPOINTMENT OF SPECIAL INTEREST COUNCILLORS AGAINST NORMATIVE FRAMEWORKS AND THE COPAC CONSTITUTION

Introduction From the exploration of international instruments and the COPAC Constitution in Chapter 2, different values of representative democratic governance emerged. These are devolution and the limits to central government interference; elements of local democracy, notably the election of representatives, community participation, accountable and effective leadership as well as transparent and efficient decision making. In realising these values there should be cooperation between different levels of government. In this chapter the author seeks to establish the extent to which the implementation and practice of section 4A complies with these values drawn from the international instruments and the COPAC Constitution. In order to assess practice, a sample survey of 20 urban local councils is presented below and discussed. This list is used to establish the extent to which section 4A complies with the critical features of representative governance drawn from international instruments and the COPAC draft.

An Analysis of the Practice of Appointing Special Interest Councillors in Terms of Section 4A The author undertook a survey of 20 urban councils to establish the practice and implementation of section 4A. In addition, the study analyses the level of consistency in the appointments with the quota provided in section 4A (1) (b) of section 4A.

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Special Interest Councillors in Selected Urban Councils The author uses results of a survey of selected local councils to analyse the composition of the appointed special interest councillors in terms of gender, political party alignment as well as the skills that they have, as presented in the table below.

Summary of Salient Aspects of the Composition Special Interest Councillors The summary discusses political affiliation, gender, special interest areas, and the skills of the appointed councillors. From a total of 320 elected councillors in 20 urban areas, 57 were appointed as special interest councillors. This represents 18% of the total elected councillors. This is less than the stipulated 25% quota for special interest councillors. It should be noted that the Minister has the right to determine the number of special interest councillors as long as it does not exceed 25% of those elected by residents. However, it defies logic why the Minister would appoint less than the required stipulation in some case and more in others. The author has observed that the thrust of the appointments seems to be tilted towards personalities with skills and expertise more than the representation of special interests. What is of importance in the composition of this table is the fact that there are more special interest councillors appointed on the basis of their skills or experience in a designated field than those representing special interests. Such practice compromises the meaning of the term ‘special interest’ as it puts the onus on the Minister to interpret its meaning. It is implied that the thrust is more on expertise and experience than on the representation of special interest groups such as the disabled and women. From the table above it may be noted that the number of those appointees representing designated interests is 13, which represents 23%. On the other hand, the number of those representing designated skills and expertise is 44 which represents 77%. This can be interpreted to mean that it is not about the representation of special interests but, rather, skills and expertise and that this implies that the focus of the Minister is to insert skills and expertise among the elected councillors.

Elected 29

15 18

17

14

12

18

9 13 11

City/ Town Bulawayo

Chinhoyi Gweru

Kadoma

Kwekwe

Marondera

Mutare

Redcliff Shurugwi Victoria Falls

2 1

4

3

0

4

1 4

Appointed 7

2 1

4

2

-

1

4

-

-

1

-

3

1 -

Gender M F 7 -

2 -

4

3

-

4

1 4

1

-

-

-

-

-

-

Party alignment ZANU PF MDC 7 -

1 business no appointment 1 business

1business

Minister made NO appointment -

All rejected by residents Unconfirmed 1 resident assoc. 1 disabled -

Remarks Special interest

Comparing the Appointment of Special Interest Councillors

unconfirmed 1 commerce 1 education 1 male-former mayor, 3 females 1 medical doctor, 1 education, 1 media no appointments made 1former ZANU PF mayor, 1 former ZANU PF dep. mayor, 1 former ZANU finance chair 1 legal, 1 finance, 1 admin 1 artisan No appointment -

unconfirmed

22% 0% 9%

22%

25%

0%

24%

7% 22%

25%

Special skills/expertise

81

11

9

10

12

17

13

15

8

23

320

Gwanda

Kariba

Karoi

Zvishavane

Masvingo

Rusape

Chegutu

Bindura

Chitungwiza

TOTAL

Table 1.

46

Harare

82

57

4

2

1

2

3

2

3

1

2

11

46

4

2

1

1

2

1

2

1

2

9

1 1

-

-

-

1

1

1

1

-

-

2

55

4

2

1

1

3

2

3

1

2

11

Chapter Four

2

-

-

-

1

-

-

-

-

-

-

13 interests

1 business

-

1 disabled 1 business -

1 business

-

-

1 business

1 disabled, 1 residents assoc.

18%

17%

30%

11%

18%

24%

2 former (ZANU PF) councillors 1 former mayor, 2 former (ZANU PF) councillors, 44 skills/expertise

18%

17%

25%

1 former (ZANU 15% PF) councillor, 1 education 1 former (ZANU PF 7%

1 business, 8 former ZANU PF councillors 1former ZANU PF councillor 1 former ZANU PF mayor 3 former ZANU PF councillors 1 former ZANU PF councillor 1 education

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Percentage of councillors from ZANU PF The author has observed a trend in which most appointed special interest councillors are losing ZANU PF candidates. The composition of the special interest councillors shows that there are more councillors affiliated to ZANU PF than those from the MDC. Out of the 57 appointed special interest councillors, 55 are from ZANU PF which represents 96% of the total of appointed special interest councillors. This inclination towards the appointment of ZANU PF councillors by a ZANU PF Minister suggests that the appointments are being used to serve a political purpose more than inserting skill and expertise in local councils. From the evidence presented by the survey it may be argued that the MLGRUD may be using the appointment of special interest councillors to reward political associates. This is even more evident in that almost all appointed special interest councillors belong to ZANU PF which happens to be the political party of the MLGRUD.1 It could therefore be concluded that the appointees are not only close associates of the Minister, but that the practice of appointing individuals without any set criteria could promote nepotism and patronage. Their appointment as special interest councillors could also be consolation for ZANU PF losing candidates for having braved the political storm against popular MDC candidates, most of whom were elected to local councils. Although the practice can be blamed on the absence of criteria for appointing special interest councillors, it is possible that the Minister may be appointing political associates as special interest councillors, as has been highlighted above. Percentage of female appointees From the picture given by the composition of appointed special interest councillors derived from the table above, appointments do not seem to be sensitive to gender equality or representation. From a cumulative total of 57 appointed special interest councillors, only 11 are women while 46 are male. This percentage of women to men is approximately 24%. This is despite the fact that women are generally under-represented in most areas and that more women would have been appointed under ‘special interest’ to increase the representation of women. It could be argued that the appointment of very few female special interest councillors shows the 1

See Survey table of the composition of special interest councillors in 18 urban local councils for different urban councils. In two urban councils, namely Kwekwe and Chinhoyi the Minister did not make an appointment for special interest councillors.

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negative impact of the lack of guidelines, which has led to arbitrary appointments without due regard for gender equity, and that this defies the critical element of inclusiveness. Percentage of the disabled While it may be acknowledged that the disabled are a special interest group and that more representation would have been necessary, then it should also be acknowledged that this could be achieved by appointing at least one disabled person, or representative, to each of the local councils cited. The survey shows that the representation of the disabled is minimal, given that out of a total of 57 appointed special interest councillors, only 2 have been appointed to represent the interests of this group in Harare and Gweru. This represents 3.5% of the total number of special interest councillors in the selected local councils. The inadequate representation of the disabled as depicted by the composition of special interest councillors defeats the purpose of inclusive representation, especially given the increasing number of disabled people in society. In the appointment of special interest councillors, the Minister claims that the interests of designated groups should be represented, but in the case of the disabled their representation is not adequate or uniform across all urban councils. Appointment based on skill An analysis of the table shows that under ‘skills’ there are those who have been involved in a specific working environment for a long time and have gained relevant experience, such as former mayors and councillors. These have been included based on the contribution that their skills would make to local government. Then there are those who have received training in a specific trade or vocation, such as medical or legal practitioners. These have been incorporated on the basis of their expertise. This is the basis on which ‘skills/expertise’ and ‘interest’ were distinguished in the table above. However, for the purposes of this discussion both of these columns, ‘skills/expertise’ and ‘interest’ will be regarded as representing skills. As a result, each of the appointed special interest councillors represents specific skills or interests. However there are cases where the skills of the appointees could not be confirmed, such as the case in Bulawayo and Chinhoyi.

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Frustrating residents for failing to vote for ZANU PF candidates From the way special interest councillors have been selected for appointment and the fact that most of them are former councillors, it is evident that the incumbents are losing candidates. The appointment of the incumbents is meant to frustrate the residents who refused to vote for the ZANU PF candidates. It is also assumed that in appointing losing ZANU PF candidates back into local councils, the MLGRUD may have sought to disappoint the electorate and sway the electorate’s vote in future elections by implanting voter apathy since residents will see no need to vote for an MDC candidate when at the end of the day both those that they voted for and those that they voted against could co-exist in council and enjoy the same benefits, including the same salaries. Exacerbating the scarcity of local council financial resources It is the author’s opinion that the appointment of special interest councillors whose salaries come from the coffers of local councils has been responsible for the depletion of financial resources in local councils, meaning that councils often fail to provide adequate services to residents. The very essence of the appointment of special interest, in addition to elected, councillors has put pressure on local councils’ financial resources. While it is a well-known fact that most local councils do not have adequate financial resources, adding more councillors whose welfare and benefits have not been budgeted for exacerbates the scarcity of financial resources of local councils and decreases their ability to provide quality service delivery to residents.

Gaps in Implementation of Section 4A of the Urban Councils Act Several gaps have been identified in the implementation of section 4A of the Urban Councils Act. The author has observed that there is a lack of consistency, transparency and clarity on the number of special interest councillors appointed to each urban council. While the legislation2 stipulates the maximum number of special interest councillors to be appointed to each local council, there is no mention of how many there should be. The lack of consistency is a result of the ambiguous nature of the provision. The vague nature of the legislation has led to inconsistencies 2

S 4A (1) (b), Urban Councils Act.

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in the numbers of special interest councillors that are appointed for each council. Such inconsistencies in the allocation of special interest councillors have shown the extent to which legislation can be abused for political gain. The appointments have also shown that the term ‘special interest’ has been interpreted to straddle skills/expertise and experience. This explains why there are more appointees with professional backgrounds which indicate expertise rather than skill. The vague nature of the legislation has also led to the manipulation of the provision of appointing such councillors, resulting in the appointment of special interest councillors to those local councils which pose a political challenge to the political party of the Minister of Local Government and no appointments to those councils which do not. The fact that five years after the enactment of the legislation, some cities like Kwekwe and Shurugwi have no special interest councillors appointed may mean that these local councils do not pose much of a challenge to the Minister. It is common knowledge that the work of a Cabinet Minister is to implement policy and legislation, but taking such a long time to implement section 4A in some parts of the country shows the extent to which the Minister can act arbitrarily. The most likely reason for this lack of urgency on the part of the Minister to appoint special interest councillors for some cities could be that such local councils do not present a major political challenge.

Comparing Section 4A to Critical Features of Representative Democratic Governance The section contained in Chapter 3 explored different international instruments and the COPAC draft to extrapolate critical features of representative governance. This part of the book compares section 4A of the Zimbabwe Urban Councils’ Act with elements of democratic governance as well as COPAC constitutional provisions on local governance. The exploration of different international instruments and the COPAC draft has led to the extrapolation of critical values which are used in this section to establish the extent to which section 4A complies with the requirements of representative democratic governance. The analysis and comparison of section 4A to critical elements of representative governance will be guided by democratic values extrapolated from international instruments and the COPAC Constitution. The values are devolution and limits to central interference in which the discussion will be centred on the extent to which devolution of powers to local authorities has been exercised in the practice and implementation of section 4A. In addition, the analysis seeks to establish whether there has been a restraint on limiting central interference.

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The book also seeks to establish the extent to which local democracy has been provided in law and practice of section 4A. Other elements that will be used to compare section 4A to international instruments and COPAC draft are the level of representative democracy, transparency, participation and accountability and the extent to which these have been achieved in the practice and implementation of section 4A. In addition, the book will seek to establish whether the appointment of special interest councillors contributes to efficiency and effectiveness in local council operations and whether the practice is able to accommodate special interests and equity. The analysis will also seek to establish whether there is cooperation between levels of government.

Devolution and Limited Central Government Interference This section seeks to establish the extent to which the practice and implementation of section 4A exhibits a devolution of functions to local authorities. Devolution and decentralisation featured because both concepts call for the transfer of powers to sub-national levels for communities to make autonomous decisions in line with the needs of localities.3 It has been argued that the major reason for devolution of governmental powers and responsibilities to lower levels of government is to empower them to make decisions that affect their communities and to enhance efficiency and effectiveness.4 Devolution helps in limiting central government interference while at the same time transferring functions to local communities. In terms of section of 4A of the Urban Councils Act, central government does not transfer power to communities to make appointments. While it may be acknowledged that central government has devolved government functions to sub-national levels, the Minister continues to appoint special interest councillors. Through legislative powers, the Minister can make additional appointments to all urban councils. The COPAC Constitution assumes that devolution and decentralisation form the basis for local government and present the central themes that inform provincial and local council governance.5 While it can be acknowledged that section 4A of the Urban Councils Act seeks to enhance local councils by incorporating expertise, it compromises devolution of power to sub-national level.

3

S 14 (1), COPAC draft (July 2012). S 14 (1) (1) COPAC draft (July 2012). 5 S14.1, COPAC draft (July 2012). 4

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The reason why the Minister does not consult local councils or communities is connected to the way that section 4A was enacted and implemented. In fact it is evident that it was never intended to devolve power to lower levels of government. The legislation focuses on the Ministerial powers to intervene in local council affairs and therefore compromises devolution, as it does not consider input from local councils or communities. This failure to devolve power within section 4A enhances central government’s role in local council affairs. As a result, central government exercises unlimited interference and control in local council affairs. The legal framework and practice do not provide a restraint on central government interference in line with the principle of devolution. From the manner in which section 4A is being implemented, it does not suggest that this principle of devolution is being respected. It has also been noted in the table of special interest councillors above that the Minister may even decide not to make any appointments, as in the case with the Kwekwe City Council and Shurugwi Town Council. In determining how many individuals should be appointed as special interest councillors, the Minister makes the final decision. In addition, it has also been observed that there are inconsistencies in appointments because in some cities the appointments are more than the 25% threshold, (Karoi 30%), while in other areas the appointments are less than the threshold (Chinhoyi, Chitungwiza, Kariba and Victoria Falls). In other towns, the appointments comply with the 25% threshold (Bindura, Harare and Marondera). It is evident that the Minister acts subjectively in implementing section 4A appointments and uses this piece of legislation as an instrument of control which further frustrates the practice of devolution. Local democracy The elements drawn from the international instruments and the COPAC Constitution in chapter 2 are representation, participation, transparency and accountability. In line with the requirements of different instruments, and in practice, local democracy requires that communities elect or appoint leaders to represent their interests in government. At local government level, local communities should be involved in electing local leadership. The process of electing leadership should ensure that there is representation, that the process enables participation of different people in the community, that there is transparency in the electoral process or the way the leaders are chosen or appointed and that the elected or appointed leaders are accountable to the community.

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Representative Democracy In the case of section 4A of the Urban Councils Act the appointed special interest councillors are accountable to the MLGRUD and do not represent the interests of local communities. As such, the practice of appointing special interest councillors falls short of representative democratic governance requirements which require public officials to be elected by their communities to represent the affairs of the communities. It may be argued that the fact that only 2 special interest councillors belong to the MDC, representing about 4% of appointed councillors, indicates that the practice of appointing special interest councillors does not appear to promote political pluralism. In addition, there is no evidence to suggest that appointed councillors are democratically elected or that they represent different political parties or different constituencies. In addition, out of the 57 special interest councillors appointed by the Minister, only 2 special interest councillors are from the MDC while the other 56 belong to ZANU PF as shown on the table above. Therefore, the appointed councillors cannot be regarded as somehow representing a democratic leadership. While it is acknowledged that special interest councillors are proportionally elected representatives, the fact that some of them have been rejected by residents (as shown in Bulawayo), implies that the practice is unpopular with residents. This is further confirmed by negative media reports which castigate the practice and implementation of section 4 by the Minister. In the case of section 4A the special interest councillors do not originate from people’s choices and do not represent a confirmed constituency. In the appointment of special interest councillors under the terms of section 4A residents are not consulted and the exclusion of residents in determining who should be appointed to administer their affairs does not comply with the requirements of representative democracy. The councillors are therefore not a representation of local interests but represent the interests of the Minister who appointed them.

Participation The principle of participation emerged as a critical feature of democratic governance. Effective participation of citizens in democratic and development processes and in governance in public affairs helps to strengthen democratic institutions.6 In representative democratic 6

Article 3 (7), African Charter on Democracy, Elections and Governance (ACDEG) (2012).

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governance, citizens should be involved in all decision-making processes that effect citizens’ lives. Evidence has shown that the appointment of special interest councillors has been done by the Minister without public consultation. Indeed, the legislation instructing the appointment of special interest councillors does not provide for the transfer of powers to communities in order to participate in the appointment of such councillors. Thus, in the practice and implementation of section 4A, the MLGRUD is not required to seek the opinion of local residents in this regard. There is no provision calling on the MLGRUD to interact with residents. It could be argued that this piece of legislation does not conform to the requirements of participatory or representative democracy as it adopts a non-participatory approach to the appointment of special interest councillors in urban areas. It may be noted that this piece of legislation falls short of the principles engendered by democratic systems of governance. The picture created by the table above suggests that the implementation of section 4A does not suggest that residents should be part of the appointment process, especially given that residents rejected the very candidates who were eventually appointed by the Minister.

Transparency Transparency has been identified in Chapter 2 as an important aspect of democratic decision making. Transparency refers to clarity and fairness in the management of public affairs.7 Transparency in the election of political leadership forms the basis for a representative democracy 8 as it enhances the legitimacy of the elected leadership. Without transparency decisions risk being rejected by the citizens, as in the case of the seven special interest councillors appointed in Bulawayo (see table above). In the case of appointing special interest councillors, in terms of section 4A there is no transparency about how special interest councillors are appointed by the MLGRUD. The fact that there are no criteria to guide the Minister in making the appointments has led to lack of transparency. In stipulating the appointment of special interest councillors, the law assumes that the Minister will appoint people with the required skills, experience and/or expertise. The lack of guidance may result in anybody being appointed as a special interest councillor. As a result, the practice has become shrouded in mystery. These shortfalls make the procedure of appointing special 7

Article 3 (8), African Charter on Democracy, Elections and Governance (ACDEG). 8 Article (1) (vi), African Charter on Democracy, Elections and Governance (ACDEG).

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interest councillors, under the terms of section 4A, flawed because the practice lacks transparency. In addition, the constituencies of the special interest councillors are based on the opinion of the Minister; hence, some are not adequately represented while others like the business sectors are adequately represented. In addition, some special interest areas are not clearly defined, such as the education sector. Judging by how section 4A is currently being implemented, as well as by the results of the survey, we can say that the value of transparency is not being observed.

Accountability Accountable governance demands that public officials should be answerable to the public in the management of public affairs. The accountability of public officials should be directed at those who elected them into public office. Accountability to local communities provides checks and balances on public officials. Local councillors are elected into office through the electoral process and in accordance with existing electoral laws.9 As such, the elected councillors strive to serve their local councils. Through the appointments of special interest councillors, the MLGRUD is able to monitor the performance of public officials. As a result, local leadership should be accountable to local communities. Section 4A is precise as to whom the appointed special interest councillors are accountable to. The fact that the special interest councillors “hold office at the pleasure of the Minister”10 implies that they operate at the behest of the Minister who may dismiss them at any time. Given that the appointed special interest councillors are accountable to the Minister, it suggests that they serve the interests of the Minister. The appointment of special interest councillors under the terms of section 4A put the elected councillors in a position where they are accountable to the Minister despite holding public office. Given that special interest councillors are public officials, it is reasonable to assume that they should be accountable to the public. However this is not the case as they are accountable to the MLGRUD. Judging by the language used in section 4A, whoever is appointed is the Minister’s personal preference and as such should be accountable to the Minister. It is worth noting that the tenure of those appointed as special interest councillors is decided by the Minister, who may decide to renew their appointment, dismiss or suspend the incumbents. The Minister thus 9

S 14 (2) (ii), COPAC draft (July 2012). S 4A (2), Urban Councils Act (2008).

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determines their working conditions. The legislation and practice of appointing special interest councillors compromises the accountability of special interest councillors to the public or their respective local councils. Therefore, the law and practice of section 4A does not suggest that the value of accountability is being respected. Accommodating special interests/equity Inclusiveness ensures the representation of all social groups in the community and contributes to local democracy. Inclusiveness also helps in mobilising different groups in the community. Equity enables the representation of different social groups on an equal basis irrespective of their social status and gender.11 Out of a cumulative total of 57 special interest councillors for 18 urban local councils, only 8 are women. This is a far cry from the provisions of major instruments which call for gender balance and equality in governance and development processes.12 The appointment of special interest councillors is one way of achieving equity. In appointing special interest councillors in terms of section 4A there is no evidence that the Minister considers appointing individuals representing different political, economic and social sectors. The incorporation of appointed special interest councillors, mostly from ZANU PF, does not really add to pluralism because it renders the composition of local councils inadequate in terms of the incorporation of other political parties or interests, other than those presented on the table above. In principle, the inclusion of special interest councillors could facilitate the accommodation of a variety of interests, particularly those of vulnerable groups such as the disabled, women, minority groups and political parties. However, the fact that the Minister is not required to ascertain prospective appointees’ expertise leads to arbitrary appointments, which might not include those able to represent the interest of vulnerable groups. It can therefore be argued that their presence in local councils as appointed councillors does not contribute to political pluralism. Political pluralism would entail the existence of individuals from different political backgrounds, elected onto the council to represent their constituencies. In the case of special interest councillors, they do not have the mandate of the people and as such cannot be recognised as contributing to political pluralism. From the table of special interest councillors drawn from 11

UN-Habitat-Good Governance. Article 2 (11), African Charter on Democracy, Elections and Governance (ACDEG) (2012). 12

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eighteen (18) urban councils (in two councils no appointments were made),13 there is no or very little evidence to show the representation of vulnerable groups. Of the 57 special interest councillors in different towns, only three represent the interest of the disabled (Harare, Gweru and Masvingo). The rest of the special interests councillors have been appointed on the basis of skills such as business, legal, medical and educational skills. All these are considered as the exclusive interests of those pursuing affluent lifestyles. It can therefore be argued that while the notion of appointing special interest councillors is noble, the practice is fraught with inconsistencies which result in the representation of the wellto-do and not the vulnerable. It can therefore be acknowledged that while there is pluralism in the composition of local councils as a result of the incorporation of special interest councillors, this does not benefit the target groups. The interests of marginalised groups such as the disabled, the homeless and orphans as well as organised groups such as residents have either been inadequately represented or have not been represented at all. Under the terms of section 4A the appointment of special interest councillors is not based on any criteria, hence there is no provision for affirmative action. Although it is argued that special interest councillors could represent specific expertise, often marginalised groups such as women, the disabled and people living with HIV/AIDS, are not considered as a priority for representation. Hence there is no evidence to suggest that these designated groups are equitably and sufficiently represented. As a result, section 4A falls short of the requirements of democratic and representative governance which prescribes equity as a vital condition and requirement. Despite the existence of an opportunity presented by section 4A to represent the interests of disadvantaged and marginalised groups, the MLGRUD has not taken advantage of it. Instead it would seem that the Minister has concentrated on political survival at the expense of the general populations’ interests. It could therefore be argued that section 4A has a noble intention of representing the interests of different sectors of society but that the Minister has confined the terms of the legislation to those that he regards as vital to him. The practice of having more special interest councillors from one political party and less from another party does not meet the requirement of political pluralism. The fact that the Minister appoints individuals whose skills or expertise are known confirms the likelihood that appointed 13 In Chinhoyi and Kwekwe urban councils, no special interest councillors were appointed.

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special councillors have a contribution to make towards enhancing the effectiveness of local councils. In addition to the failure of the system to promote political pluralism as discussed above, it shows that the implementation of this legislation does not recognise other minority political parties or other people from marginalised groups in the community whose interests are not being represented. As a result, it may be noted that by appointing more special interest councillors from one political party and without being gender sensitive, the Minister has failed to achieve inclusiveness. It can therefore be noted that section 4A fails to meet the requirements of inclusiveness in representative democratic governance. Effective and efficient decision making Efficiency implies using minimum resources to get maximum output as well as the making of sound decisions. In the case of local government, efficiency would mean using the available resources economically. Although special interest councillors have no vote, their existence as advisors to the councils enables councils to make informed decisions on policy formulation and implementation. Taking cognisance of their experience in local government, it is assumed that they have some contribution that they can make to enhance the performance of local councillors.14 In terms of section 4A there is no evidence that the inclusion of special interest councillors has enhanced the quality of decision making. However, what is evident is that the additional special interest councillors are an additional financial burden on local councils which contributes to the depletion of council financial resources. On the other hand, the disagreements that are likely to erupt in local councils as a result of different political backgrounds between the elected and appointed councillors are likely to compromise effectiveness. It can therefore be argued that the legislation and practice of appointing special interest councillors have not improved the efficiency and effectiveness of local councils. What is evident is that there has been increased inefficiency as local councils become increasingly bankrupt while effectiveness has 14 UN-Habitat Urban Governance Index / United Cities and Local Governments (UCLG); United Cities and Local Governments in Africa (UCLGA); The United Cities and Local Governments of Africa; All Africa Ministerial Conference on Decentralisation (AMCOD); Charter for Popular Participation in Development and Transformation (CPPDT). African Charter on Democracy, Elections and Governance (ACDEG); Kigali Declaration; Victoria Declaration; COPAC Constitution.

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decreased as evidenced by the dilapidated infrastructures found in most towns.15 It is most likely that the practice and implementation of section 4A has had an impact on sound decision-making processes. Sound decision making involves incorporating the community in the making of decisions that affect the lives of the people in that community. Although, from a policy point of view, the infusion of special interest councillors would facilitate sound decision making, the practice of appointing the councillors is fraught with inconsistencies. This eventually defeats the purpose of inserting skills in local councils. Despite the assumption that the presence of special interest councillors enhances the efficiency and effectiveness of local councils, the differences in the political ideologies of elected and appointed representatives should not be taken lightly. There is evidence from media reports that the political rivalry between the elected MDC councillors and the appointed special interest councillors has led to fraught relationships that negatively impact on sound decision making. As a result, it can be argued that the presence of experienced former ZANU PF councillors would most likely not contribute to sound decision making or the strengthening of council debates. Cooperation between levels of government Cooperation between levels of government entails cooperation, co-existence and interaction between different levels of government to implement policies. Cooperative governance enhances the efficient implementation of public policies as different levels of government complement each other in this regard. From the composition of special interest councillors provided above, there is no evidence of cooperation between the Minister who represents central government and local authorities in the appointment of special interest councillors. Section 4A does not recognise or facilitate for cooperation between different levels of government. Also, in implementing section 4A the Minister does not act in the spirit of cooperation. In making the appointments, the Minister does not consult local councils. The way that section 4A has been implemented leaves local councils with no role to play in the appointment of these councillors, despite the fact that the councillors will serve together in local councils. This is a recipe for failure as it creates a rift between central and local governments. It also shows that the interaction between central and local 15

Combined Harare Residents’ Association (2010).

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government is not in the spirit of cooperation but is one in which local councils receive and implement policies handed down from central government. It can therefore be argued that section 4A does not comply with the requirements of cooperative governance because there is no evidence of consultation between central government (represented by the Minister) and local government (represented by local councils).

Observations The discussions about the practice and implementation of section 4A of the Urban Councils Act concluded that in appointing special interest councillors in urban local councils, the Minister is not required to consult residents or local councils. The Minister eventually makes the appointments of special interest councillors at his discretion. This was further shown by the composition of special interest councillors appointed in different urban councils in which the Minister did not comply with legislation. While in some cases the Minister appointed less than the required quota, in other cases the Minister did not appoint any special councillors at all. There is evidence to show that the practice and law of section 4A compromises the accountability of the appointed special interest councillors who should be answerable to the Minister. Therefore, the researcher makes recommendations that would strengthen the practice and implementation of appointing councillors in urban local councils. In addition, the researcher may also seek to provide ways in which the local operation of councils can be strengthened. The researcher has also observed that the tenure of the appointees rests with the Minister who can either renew or terminate it. It has also been shown that most appointed councillors belong to ZANU PF which in practice does not translate into political pluralism, precisely because other factors need to be considered when appointing special interest councillors; factors other than just political affiliation.

CHAPTER FIVE CONCLUSION AND RECOMMENDATIONS

The previous chapter presented a survey of twenty urban councils and the composition of the councils in terms of both elected and appointed councillors. It emerged that there is no regulated appointment of councillors to represent special interests. The practice and law of section 4A was also found to be implemented inconsistently. In some cases many individuals are appointed to represent one special interest, while in other areas - like disability - there are very few individuals appointed to represent their interests. The study also presented critical features of democratic governance whose values were used to test section 4A and the extent to which it complies with the requirements of democratic representative governance. From the analysis of section 4A against the values of representative democratic governance extrapolated from international instruments and the COPAC draft, it emerged that the legislation has failed to comply with the major requirements of representative democratic governance. From the discussions above, it may be noted that the practice and implementation of section 4A does not only negate international benchmarks on representative democratic governance, but falls short of the basic democratic requirements of participation and transparency. Instead of curbing corrupt practices in local councils, there is evidence to show that the subjective appointments by the Minister could promote corrupt practices. Taking note of the way the practice and law of section 4A is implemented, the author makes recommendations based on the values that were extrapolated from Chapter 2. The author will seek to identify how devolution and limits to central interference can be achieved; how local democracy could be enhanced; ways in which community participation and transparency in the implementation of local government legislation can be incorporated into legislation. In addition, recommendations will also include ways in which the special interests of different groups, and equity, can be represented in local councils. Lastly, the study will seek to

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suggest ways of enhancing the effectiveness and efficiency of local councils.

Recommendations Devolution and Limits to Central Interference Devolution ensures that lower levels of government are empowered to make their own decisions in line with national legislation. The researcher recommends that having noted that the practice and implementation of section 4A violates democratic practices, it would be in the best interests of residents and democracy to either repeal or amend the legislation. If the legislation is to be amended, it should aim to ensure that local councils have a say in the appointment of special interest councillors. In the event that the legislation is repealed then the state should ensure that all councillors are democratically elected. If the notion of appointed councillors is to be retained, local councils should be given the opportunity to present their own candidates for appointment by the Minister. In this way the interference of the Minister would be limited, since individuals would be presented to him to choose from, contrary to the current position where the Minister identifies and appoints individuals without consultation.

Local Democracy In order to enhance local democracy the researcher provides two recommendations. First, that the Minister makes the appointments in consultation with local residents. Alternatively, as has been alluded to above, residents may come up with lists of preferred candidates. Under this option, residents compile lists of candidates that they know have the required expertise and skills to represent different interests. Once such lists have been compiled, they are presented to the Minister who should, on the recommendation of local boards composed of residents, make the final appointment. The second option entails residents making the appointments from among local people who have the required skills and expertise to represent different groups in their localities. In this option, residents use their knowledge of their community to identify local residents who have specific skills and expertise that can represent designated interests in local councils. It is common knowledge that residents know each other better than a Cabinet Minister; they are likely to appoint qualified individuals in

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terms of experience, skill, expertise and those from marginalised groups whose interests should be prioritised. Both options require amending or repealing the current legislation on the appointment of special interest councillors. As such, the local communities and local councils should be instrumental in appointing special interest councillors to take charge of specific areas. The incumbents should be individuals who are elected or appointed to promote local democracy, and who are identified and appointed by the local communities. In line with the devolution of powers, existing legislation should be amended to incorporate community participation in the identification of local individuals with the prerequisite skills and expertise that would help to strengthen democratic governance in local councils. A broader interpretation of special interest areas should therefore be considered. Involving communities in the appointment of special interest councillors would improve transparency and accountability because the individuals appointed would be aware of the role of the community in the appointment and would be more inclined to be accountable to the local community. Such a way of appointing special interest councillors would also minimise nepotism and help reduce the powers of the Minister in decision-making processes. Equity is also likely to be improved since communities will be in a position to know those social groups which are under-represented in public office. In addition, the process of appointing the councillors should be transparent and should recognise the right of communities to choose local leaders. It is common knowledge that individuals feel grateful to those who appoint them to a position. In the same way, currently special interest councillors feel obliged to be accountable to the Minister who appoints them to local councils. Amending the legislation to enable communities to make the appointments would entitle the appointees to be accountable to local communities.

Accommodating Special Interests/Equity Casting the net wider by calling upon communities to provide lists of individuals with expertise and skills in designated areas of local governance would help identify candidates who possess the best skills and expertise. Such a process of identifying people with skills and expertise would legitimise the practice and implementation of appointing special interest councillors. The legislation should either be enacted or the existing legislation be amended to contain the provision of having special interest

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councillors in urban local councils to represent designated interests. Such legislation would also need to contain a clause providing the criteria for the qualities that are required in candidates vying for appointment as special interest councillors. The problem that has been identified with the practice and implementation of section 4A has been that it lacks any criteria to guide the Minister in appointing individuals for such appointments. In the practice and law of section 4A the definition of a ‘special interest area’ has been limited to the disabled and women and vulnerable groups whose interests are not adequately represented as shown in the survey of twenty urban councils. However, in the end the appointments include professionals and individuals with experience in local government affairs. It could also be as a result of the Minister’s limited interpretation of the definition of ‘special interest’ areas. Providing guidelines that define which areas should be considered as ‘special interest’ areas would help avoid such a trend. Providing guidelines would also help in providing for equity and inclusiveness of minority groups and other marginalised groups such as the homeless, widows, and the youth. As a result, it is recommended that if the practice of appointing special interest councillors is to be retained, existing legislation should be amended to contain a clause that stipulates clear criteria on how and for how long the special interest councillors should be appointed. The criteria should be clear as to whom the appointees should be accountable, who should pay the appointees, and for how long should the incumbents should be in council, as well as the specific interests that the incumbents would represent in local councils. The issue of appointing losing candidates would most likely be avoided since the criteria in place would also seek to address the identification of suitable candidates who may not be strongly inclined to support specific political parties, save for the elected councillors who are elected to represent their respective political parties. With such criteria contained in the legislation, the current difficulties pertaining to accountability, transparency and inclusiveness would be curtailed. The author also recommends that distinctions between skills and expertise should be made so as to avoid mistaking one for the other in the appointment of special interest councillors. However, with the adoption of the new Constitution of Zimbabwe (herein the COPAC Constitution), it should be noted that the challenges and manipulation of the appointment of special interest councillors has been abolished and a more democratic way of election local government officials has been provided.

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In addition, the author recommends that there should be clarity on what skills and expertise local councils require, before making the appointments. It should only be after local councils have identified what skills and expertise they require that suitable appointments would be made.

Cooperation between Levels of Government The current practice and implementation of appointing special interest councillors compromises cooperative governance. To improve the relationship between central and local government, the introduction of advisory boards comprising members from central government and local councils would help to promote cooperation between central and local government. Such advisory boards would help in the interpretation of local governance statutes and provide a roadmap for implementing such legislation. In addition, the advisory boards would take part in a number of functions such as ¾ advising the Minister on special skills and the criteria to be used in appointment of special interests councillors; ¾ advising the Minister on special interest areas and the criteria to use to determine whether an area is a special interest or not; ¾ nominating candidates for consideration by the Minister; ¾ vetting candidates that will have been nominated by residents With such advisory boards in place, there is likely to be consensus between the two levels of government in the implementation of section 4A. Given that Ministers are politicians, in some cases they do not have the knowledge of the portfolios that they handle, it would not be appropriate to leave the practice and implementation of legislation to them. The current system of appointing special interest councillors to local councils did not take into consideration the availability of resources. It would be appropriate to consult with the concerned local councils to establish the status of resources and whether the available resources can accommodate new appointed councillors. If such local councils do not have adequate resources, the appointment of councillors would be set aside until such a time when resources are available. However, the new Constitution has also provided for the devolution of powers and does have the propensity to provide for cordial relations and cooperation between different levels of government.

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Effective and Efficient Decision Making As has been discussed above, the lack of criteria to guide the Minister in making the appointments has also led to flawed decisions in terms of the calibre of the candidates that are eventually appointed. It is recommended that special interest councillors be appointed on the basis of criteria set by local councils, since the councils know the special interests that they want to be represented in their councils. However, the local councils should be guided by legislation to define what constitutes a special interest area. This would help local councils to identify candidates with the skills and expertise that they require in their local councils as well as the interests of those people in their communities that they think should be represented. With regards the working conditions of the appointed special interest councillors, it is recommended that this be borne by central government since the individuals are not elected by local residents. Such councillors should not be allowed to strain the financial resources of local councils, thus compromising their ability to provide efficient and effective services to residents.

General Remarks It has been noted that the practice and implementation of section 4A of the Urban Councils Act has not complied with the critical features of representative governance extrapolated from international instruments and the COPAC Constitution. It was noted that the COPAC Constitution contains crucial elements that would provide democratic local governance. If political developments in Zimbabwe are anything to go by, the adoption of the COPAC Constitution at the referendum on the 16 March 2013 was a watershed development in the history of democracy for the country in general and for local government in particular. The new Constitution of Zimbabwe did away with the despotic practice of appointing special interest councillors in local councils. In other words, the new COPAC Constitution, which is now law, has transformed local government, local governance and local democracy. Local communities have also been empowered to be able to influence decisions that affect their lives by partaking in legislation that benefits them per se. The practice of appointing special interest councillors as had been provided by section 4A has not been retained and therefore has failed to survive the democratic winds of change under the new Constitution. However, given the acrimony between the two major political parties in the country, namely ZANU PF and the MDC-T, it remains to be seen whether the two political rivals will

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collaborate or stick to the democratic principles of governance as they seek to implement the new Constitution. From the way section 4 has been implemented, it is evident that the old system of local government was not only untenable, but its existence has long needed to be transformed or overhauled, something that was achieved by the new COPAC Constitution by leaving out provisions that had been given by section 4A and replacing them with legislation that promotes democratic governance. It should therefore be noted that if the new local government provisions are implemented to the letter they would go a long way in transforming local governance in general and the operations of local councils in particular.

Further Examples of the Domineering Role of the Minister in Local Governance In addition to the appointment of special interest councillors as stipulated by section 4A of the Urban Councils Act and section 80 of the District and Rural District Councils Act there are several examples of how the MLGRUD has dominated decision-making processes in local governance. The following are some of the major examples of the oversight role of the MLGRUD:

1. Power to suspend councillors and mayors The Urban Councils Act [Chapter 29:15] has always empowered the Minister to suspend councillors who cause a council to lose property and funds due to mismanagement, negligence and corruption. However, the Minister has used these powers to persecute and chase out his political foes together with councillors who have investigated the alleged abuse of office by the Minister. The Bulawayo Residents’ Association has also noted that the Minister has deliberately failed to consult residents, culminating in the removal of councillors and mayors for reasons of political expediency. This disregard for the residents’ voice portrays the Minister as a dictatorial individual who does not take cognizance of the significance of residents and community participation.

2. Local Government Board The Minister is empowered to select individuals of his own choice to sit on the Local Government Board. The Board is supposed to supervise the running of local authorities but its silence on serious issues of service

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delivery failure and corrupt governance reveals that the Board does not have the concerns of the residents at heart. While the Board constitutes various stakeholders, it does not have space for residents who are the primary consumers and recipients of services provided by local authorities. To function effectively, the Local Government Board should have seats reserved for residents’ representatives and its appointment must be approved by the Parliamentary Portfolio Committee on Local Government and not by one individual.

3. Appointment of Commissions The Minister is also mandated to appoint a Commission to run the affairs of a local authority in the event of a suspension or the dismissal of councillors. This has allowed for the Minister’s unwarranted interference in Council procedures and the manipulation of the law to further political ends and self-enrichment. Residents should also be consulted with regards to composition of Commissions.

4. Approval or rejection of budgets The Minister approves or disapproves the budgets proposed by councils at his own discretion and time. This has tended to cause delays that have had a trickledown effect on residents who end up feeling the brunt of poor waste management, sporadic water supplies and burst sewers as councils await approval from the Minister to proceed with their budget estimates proposed in their respective budgets.

5. Power to override Council Resolutions While local authorities are empowered by legislation to make bylaws that are relevant and operational in the local authority area, the Urban Councils Act also permits the Minister to override the decisions of the duly elected ward councillors. This is an affront to democratic principles whereby the will of one man silences the expressions and concerns of residents as articulated by their councillors. One of the most vocal residents associations, the Bulawayo Progressive Residents Associations has reacted to this legislative provision by recommending that the Urban Councils Act be amended or repealed so that the Parliamentary Portfolio on Local Government is given the mandate and adequate power to enact checks and balances against such an abuse of office, ostensibly by the Minister. The Association proceeds by highlighting that such envisaged changes to local

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government legislation should make it mandatory for the Minister to consult the Parliamentary Portfolio Committee on Local Government before taking decisions unilaterally. The Committee should thus provide checks and balances to ensure that the conduct and operations of the Ministry of Local Government, Rural and Urban Development and local authorities are in tandem with the principles of transparency, accountability and good local governance.

Recent Local Governance Constitutional Developments The Constitutional reform process which started with calls by prodemocracy civil society organisations, notably the National Constitutional Assembly as well as political parties, culminated in the drafting of a more democratic and encompassing constitution in 2012. The task of coming up with a new Constitution was handled by a multi-party Committee of Parliamentarians, commonly known as the Parliamentary Select Committee (COPAC). In order to come up with a people-driven constitution, the Parliamentarians undertook outreach programmes across the whole country. In March the 2013 a new Constitution of Zimbabwe was ascended by the executive, making it the second constitution for the country since the attainment of political independence in 1980. One of the most notable provisions in the new Constitution was the section on Local Governance, the first of its kind in the constitutional history of the country. Never before has local government been a constitutional provision, but a creature of statute. Moreover, local government was a creature of statute presided over by the Minister responsible for Local Government. This arrangement concentrated most of the decision-making power in the Minister, with very little power for local authorities and residents. Unlike different local government legislation, the new Constitution gives wide-ranging decision-making powers to local authorities as well as to residents to influence local government policy formulation and implementation.

REFERENCES

Books Curtin DM & Wessel A (eds) Good governance and the European Union: reflections on concepts, institutions and substance (2005) New York: Intersentia. Fung A, Wright EO (2001). Deepening Democracy: Innovations in Empowered Participatory Governance in Politics and Society, March, Sage Publications, Inc., 29(1) 5-41. Hyden G (1992). ‘The Study of Governance’, in G. Hyden & M. Bratton (eds) Governance and Politics in Africa 1-26, Lynner Rienner Publishers. Irvin RA, Stansbury J (2005). Citizen Participation in Decision Making: Is It Worth the Effort? Public Admin. Rev., 64(1): 55-65. Kamete A (2009). ‘“For enhanced civic participation in local governance”: calling tyranny to account in Harare’ Environ. Urbanization, 21(1): 5975. Litvack J; Ahmad J & Bird R Rethinking decentralisation in developing countries (1998) Washington, DC: The World Bank. Mamadou D (1996). Africa’s Management in the 1990’s and beyond; Reconciling Indigenous and Transplanted Institutions. Washington: IBRD/The World Bank. Manor J (1999). The Political Economy of Democratic Decentralization. Washington, DC: World Bank. Mararike CG Grassroots Leadership: The Process of Rural Development in Zimbabwe (1995) Harare: University of Zimbabwe. Matovu G (ed) (1996). The Design and Management of Poverty Reduction Programs and Projects in Anglophone Africa. Washington D.C.: International Bank of Reconstruction and Development/ The World Bank, 1996. NetLibrary. Summar Library, Jackson, TN. 10 Feb. 2006 . Moyo J, Makumbe J, Raftopoulos B (2001). NGOs, The State and Politics in Zimbabwe. Harare: Baobab Books. Olowu D & Wunsch JS Local Governance in Africa: The Challenges of Democratic Decentralisation (2004) Lynne Rienner: Boulder.

108

References

Swilling M (1994). Political Transition, Development and the Role of Civil Society. Paper presented to the Affinity Group for South Africa, American Council of Foundations, Washington, November 6-7, 1994. mimeo. World Bank, (2000). Annual Report 2005: Year in Review. —. (2007). “Budgeting and Budgeting Processes-Participatory Budgeting”. Yoshikuni T African Urban Experiences in Colonial Zimbabwe: A Social History of Harare before 1925 (2006) Harare: Weaver Press.

Book Chapters Chakaipa S ‘Local government institutions and elections’ in De Visser J; Steytler N & Machingauta N 2 (eds) Local Government Reform in Zimbabwe: A policy dialogue (Community Law Centre: Cape Town) 2010. Chatiza K ‘Can Local Government steer socio-economic transformation in Zimbabwe?’ in De Visser J, Steytler N & Machingauta N 5 (eds) Local government reform in Zimbabwe: a policy dialogue (Community Law Centre: Cape Town) 2010. Hammar A ‘The making and unma(s)king of local government in Zimbabwe’ in Hammar A, Raftopoulos B and Jensen S (eds) Zimbabwe’s Unfinished Business: Rethinking Land, State and nation in the Context of Crisis (Harare: Weaver Press) 2003. Mushamba S ‘The powers and functions of local government authorities’ in De Visser J; Steytler N & Machingauta N 4 (eds) Local Government Reform in Zimbabwe: A policy dialogue (Community Law Centre: Cape Town) 2010.

Journal Articles Agarwala A & Ribot J ‘Accountability in decentralisation: A framework with South Asian and West African cases’ (1999) 33 Journal of Developing Areas (4) 473 502. Bland G ‘Overcoming a decade of crisis: Zimbabwe’s Local Authorities in transition’ (2011) 31 Journal of Public Administration and Development (4) 340 350. Frederickson H; Wood G C & Logan B ‘How American City Governments Have Changed: The Evolution of the Model City Charter’ (2001) 90 National Civic Review (1) 12 35. Grnchalla-Wesiershi T ‘A Framework for Understanding “Soft Law”’ (2001) 30 McGill Law Journal 37 88.

Challenges to Urban Democratic Governance in Zimbabwe

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Hoyos A & Uys F ‘Theoretical Perspective to Fiscal Decentralisation in Developing Countries’ (2008) 43 Journal of Public Administration (1) 26 43. Jonga W & Chirisa I ‘Urban Local Governance in the Crucible: Empirical Overtones of Central Government Meddling in Local Urban Councils Affairs in Zimbabwe’ (2009) 3 Theoretical and Empirical Researches in Urban Management (12) 166 182. Madhekeni A & Zhou G ‘Legal and Institutional Framework: The “Achilles Heel” Of Local Authorities and Raison D’etre of Ministerial Intervention in Zimbabwe’ (2012) 2 Journal of Public Administration and Governance (3) 19 32. Makumbe J ‘Is there a civil society in Africa?’ (1998) 74 International Affairs (2) 305 317. Mhlahlo SR ‘Assessment of Urban Governance in Zimbabwe: Case of the City of Gweru’ (2007) 23 Eastern Africa Social Science Research Review (1) 107 128. Orsello GP ‘Governance in the European Union” (2003) RSC Harvard Law School ‘Response to the European Commission’s White Paper on Governance’, pp5-27. Radio VOP ‘Bulawayo Rejects Chombo's Imposed Councillors’ Zimbabwe Inclusive Government (ZIG) Watch: Issue 15-27 April 2010 5.

Working Papers Afonso A; Schuknecht L & Tanzi V Public Sector Efficiency: Evidence for New EU Member States and Emerging Markets (2006) European Central Bank, Working Paper Series No. 581. Jordan JD Local Government in Zimbabwe: An Overview (1984) Mambo Occasional Papers-Socio-Economic Series No. 17, Gweru: Mambo Press. Matumbike CWE (2010). Local Government in Zimbabwe 1970-2009: Historical Perspectives and Reflections on the Last Four Decades Discussion document prepared for UNPD-Ministry of Local Government.

Conference Papers All Africa Ministerial Conference on Decentralisation (AMCOD) 1999. Mimicopoulos MG ‘Department of Economic and Social Affairs’ presentation to the United Nations World Tourism Organisation Knowledge Management International Seminar on Global Issues in

110

References

Local Government: Tourism Policy Approaches, Madrid, 27-29 September 2006. Government of Zimbabwe ‘Local Governance for Poverty Reduction: The case of Zimbabwe’ Paper prepared for presentation at the Africa Governance Forum, Maputo, May 23-25 2002. Zimbabwe Institute ‘Local Government: Policy Review’ (Cape Town 2005). Strategic Reflection Workshop, Kadoma, 10-12 June 2009.

Policy Briefs Graham J; Amos B & Plumtree T Principles for Good Governance in the 21st century (2003) Policy Brief No. 15, Institute on Governance. Helmsing HH Transforming Rural Local Government: Zimbabwe Post independence Experience No.0104.02 (2004).

Reports African Development Bank African Development Report 2001: Fostering Good Governance in Africa (2011) Oxford: Oxford University Press. Shah & Shah (2006) Governance: The World Bank’s Experience (2007) Washington, DC: World Bank.

Internet Sources The Elected Councillors’ Association of Zimbabwe (ECAZ) ‘Chombo uses councillors as spies’ The Zimbabwean 7 August 2012 2; Available at http://www.thezimbabwean.co.uk/news/zimbabwe/60002/chombouses-councilors-as-spies.html [Accessed 12 August 2012]. Grabmore G ‘Ignorance Chombo's primary aim is to frustrate MDC councils’ New Zimbabwe Forums, 18 May 2012 4. Available at http://forum.newzimbabwe.com/index.php?/topic/57413-even-thestrongest-zanoids-will-be-shocked/page__st__20 [Accessed 26 August 2012]. Madava T ‘Anger over special interest councilors’ The Financial Gazette 16 August 2012 2; Available at http://www.financialgazette.co.zw/national-report/13793-anger-overspecial-interest-councillors.html [24 August 2012]. Municipal Reporter ‘Chikumbirike named councillor’ The Chronicle, 23 August 2011 4. Available at

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http://www.chronicle.co.zw/index.php?option=com_content&view=art icle&id=19177:chikumbirike-named-councillor&catid=38:localnews&Itemid=131 [Accessed 17 July 2012] Rejoice Ngwenya ‘Tsvangirai’s 2013 electoral albatross” in Kubatana.net 20 April 2012 6. http://www.kubatana.net/html/archive/opin/120420rn.asp?sector=LEG ISL&year=2012&range_start=31 Accessed 26 August 2012]. Staff Reporter ‘Mangwana raps 'undemocratic' Chombo’’ New Zimbabwe, 25 August 2012 3, Available at http://www.newzimbabwe.com/news8275 Mangwana%20raps%20Chombo%20power/news.aspx Chimhete C & Ndlovu N ‘Chombo unsettles MDC-T run councils’ The Standard. Sunday, 22 April 2012 . Available at http://www.thestandard.co.zw/local/34891-chombo-unsettles-mdc-trun-councils.html [Accessed 6 July 2012]. Ndlovu N ‘Zimbabwe: Special Interest Councillors Dismissed’ The Standard, 14 April 2012 5. Available at http://allafrica.com/stories/201204160265.html [Accessed 2 July 2012]. Sibanda A ‘Bulawayo residents and Chombo to clash over special interest councillors’. Bulawayo24, 16 May 2012 6.Available at http://bulawayo24.com/index-id-news-sc-local-byo-15273-articleBulawayo+residents+and+Chombo+to+clash+over+special+interest+c ouncillors.html HRT ‘Chitungwiza Residents raise concerns with Minister Chombo’ SWAfrica Radio, 13 February 2012 1. Available at http://www.swradioafrica.com/chitungwiza-residents-raise-concernswith-minister-chombo/[Accessed 12 June 2012]. Staff Reporter ‘Bulawayo: Chombo Tries (again) to impose “Special Interest” Councillors’ Zimbabwe Metro. Available at http://www.zimbabwemetro.com/bulawayo-chombo-tries-again-toimpose-special-interest-councillors/ ‘European Charter on development cooperation in support of Local Governance,’ Available on http://as03.cooltoad.com/go/desktop?o=item:290412737:1.2:CharterE ULocal%20Governance.pdf [Accessed on 20 July 2009] Shane PA (ed) Building Democracy Through Online Citizen Deliberation. A Framework for Action (2009) http://moritzlaw. osu.edu/pldd/docs/building democracy.pdf 28.4

112

References

Theses Madzivanyika L The impact of weaknesses in the Urban Councils Act on efficient and effective service delivery in urban local councils in Zimbabwe (unpublished LLM Research paper, University of the Western Cape, 2011). Machingauta N A legal analysis of the appointment of caretakers to act as council in terms of Zimbabwe’s section 80 of the Urban Councils Act (unpublished LLM Thesis, University of the Western Cape 2010).

Legislation Urban Councils Act [Chapter 29:13] Act 6 of 2008. Rural and District Councils Act [Chapter 29:15] Act 4 of 1996.

Legislative Instruments African Charter on Human and People’s Rights. African Union Charter on Democracy, Elections and Governance (ACDEG) 2012. Charter for Popular Participation in Development and Transformation (CPPDT) 1990. European Charter of Self-Government 1996. Kigali Declaration 2006. United Cities and Local Governments of Africa (UCLGA) 1990. UN-HABITAT. "Legal issues for city-to-city co-operation: a framework for local government international action" Seville, Spain in January 2007. United Nations Millennium Development Goals (2000). Universal Declaration on Human Rights (UDHR) 1948. Victoria Falls Declaration 1999. Zimbabwe Parliamentary Select Committee Draft Constitution (COPAC) July 2012.