Mayoral suspensions: A case of constitutional ignorance or arrogance?

By Paul Kaseke

I have very rarely come across a gross violation of a constitution such as the case of the Zimbabwean Minister of Local Government, Saviour Kasukuwere and his suspension of mayors. Perhaps what riles me the most is that the checks and balances built into our democracy (if indeed it can be called one), are failing and dismally so, to prevent such violations and in fact in some instances , the checks and balances are legitimising his violation of the Constitution.

Following the footsteps of his successor, Dr. Ignatius Chombo who was particularly fond of suspending mayors, Minister Kasukuwere started his term of office by suspending three Mayors. The mayors of Harare, Bulawayo and Gweru were suspended for various clashes with the Minister.

In the case of Harare mayor, Bernard Manyenyeni, suspension was first grounded on the allegation of unlawfully appointing the Town Clerk without seeking approval from the Local Government Board and more recently, for failing to conduct an audit.

The continued constitutional ignorance fused with arrogance that plagues central government in general, is very disappointing to say the least but beyond that, it shows a gross disrespect for the voice of the people which finds expression in the Constitution. Whereas the previous Constitution did not govern the relationship between the Central Government and the Local Government, the current constitution does.

Logically, one can conclude that the inclusion of it in the Constitution reflects a change in tone and a change in direction which is a response to the era of abuse of powers vested in central government through the Minister of Local Government. As a matter of fact the inclusion of the local government provisions in the Constitution is to prevent situations where suspensions are used to bully local authorities and to frustrate them as was the case with Eng. Elias Mudzuri who was effectively dismissed by use of an indefinite suspension.

That is an important aspect in understanding the shift in the relationship and indeed the mistake of the courts is to pretend that this is not the case where in fact it is probably the biggest interpretational tool to their disposal. It is therefore not possible for us to continue to view the relationship between central government and local government the way we did before the adoption of the Constitution. The landscape has changed.

One of the sticking points of the constitutional drafting phase was the area of devolution which people desperately desired to have in the Constitution. Devolution of power entails that power to govern no longer lies exclusively with central or national government but is shared with the provincial government and local government.

Devolution of power is perhaps best seen in the South African context where there are certain functions the central government is not allowed to override the decisions of the provincial and local government.

The drafters of our Constitution sought to do the same for Zimbabwe and indeed they started the process by having it written down in our supreme law. The problem does not lie with them or the document itself but lies with central government whose failure to give effect to the concept is delaying the implementation of the type of devolution envisaged.

Devolution as set out in our Constitution practically entails that central government no longer plays a policing or supervisory role when it comes to local government as was the case before the adoption of the Constitution. Like an independent organ, the local government is competent to govern without the leading hand of the central government even though it must work together with it.

The relationship which was hierarchical is now horizontal and the two governments must cooperate with each other and complement each other. Unfortunately for the Minister of Local Government, he seems to have taken the reins at the wrong time because he no longer enjoys the wide assortment of powers enjoyed by Dr Ignatius Chombo despite his beliefs that he is entitled to them.

That degree of power and influence was effectively ‘murdered’ by the Constitution and cannot be resurrected by a court of law despite the learned judge, Judge Mary Dube clumsily attempting to do so with her judgment in the Harare Mayor’s case.

It is true that the Urban Councils Act (the UCA) previously required the council to appoint a town clerk but only after getting the requisite permission from the Local Government Board. That was then but that is not the case anymore. The Local Government Board itself is a relic of the past. It was composed of ministerial appointees who were tasked with superintending the local governing authorities across the country.

That Board, simply cannot exist alongside the Constitution without creating an absurdity and mockery of the Constitution. Constitutional supremacy means that the Act (which should be repealed and not amended or reincarnated under a new name as government has done with the Local Government Bill) must bow down to the Constitution which is superior.

The powers the Board previously enjoyed under the Act, are powers that now rest with the various councils and the Independent Tribunal which should deal with the suspension and dismissal of councillors and the mayor.

This Tribunal is non –existent at present but only it has the powers to suspend and dismiss the local government authorities. Devolution on its own, entails that central government cannot create a Board with powers to supervise, suspend or dismiss local government authorities.

In the Zimbabwean context more specifically, another reason why the central government cannot exercise the above named powers is because the Constitution now requires that every councillor is elected and not appointed.

This is consistent with the idea of devolution and the Constitution also makes this quite clear because it makes no mention of that Board and gives the local governing authorities power to govern autonomously. That is the breaking deal in this mambo jambo –autonomous.

The travesty of justice in the Manyenyeni judgment is that the court failed to realise that the Minister of Local Government can no longer exercise any substantive power over councils at all. The evidence of this is seen in s 274 (2)which reads  ‘Urban local authorities are managed by councils composed of councillors elected by registered voters in the urban areas concerned and presided over by elected mayors or chairpersons, by whatever name called.’

I previously argued that one could in fact say the role of the Minister is now constitutionally redundant because of the idea of devolution and the framework set out in the Constitution. The most bizarre interpretation of the law was and is being displayed both by the judiciary and by central government which pretends that the Minister has the powers to allocate land and suspend mayors.

As I have mentioned, that power does not belong to the Minister but to the local authorities. That is the law and government cannot change it without amending the Constitution.

In essence here is what I am saying:  The Mayor was unlawfully suspended for a charge that was incorrectly and unlawfully formulated by an authority who acted unlawfully in discharging powers he neither holds nor is conferred by the Constitution.

Not only is the law relied on wrong but he is also the wrong functionary to exercise such powers. Our law is quite clear post 2013 –Local governing authorities have the right to govern without interference and remain autonomous from central government.

What really remains is to see whether or not the Constitutional Court will rightly interpret the Constitution and give effect to the concept of devolution if these cases are ever brought before it.

More importantly however, it remains to be seen whether the State displays maturity and integrity in giving effect to court judgments and the Constitution. It simply does not make sense that the intention of the drafters of the Constitution is not given effect to and the Minister of Local Government is allowed to make a mockery of local governing authorities.

Paul Kaseke is a legal advisor, commentator, analyst and sessional law lecturer with the Wits Law School. He writes in his personal capacity. You can give him feedback via email : [email protected] or follow him on twitter @paulkasekesnr