Transcript Document

Draft Constitution of Zimbabwe
Comments with regard to provincial and local
government
Prof. JW (Jaap) de Visser
Multi-level Government Initiative
University of the Western Cape
Cape Town
This presentation
• SA transition (focus on multi-level government
issue)
• some remarks on constitutional design and
multi-level government - why multi-level
government / what are the dangers?
• some remarks on Copac draft of 18 July 2012
Constitutional design and multi-level
government
• Multi-level government: sharing of authority across
levels of government
• More and more countries entrench multi-level
government in Constitution, e.g.
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Uganda (1995)
Ethiopia (1994)
Nigeria (1999)
South Africa (1996)
Kenya (2010)
• Copac Draft suggests a degree of constitutional
entrenchment of multi-level government for Zimbabwe
South African Constitution Building
• contentious theme: structure of the state:
how ‘federal’ or ‘decentralised’ will South
Africa be?
• ANC: strong central govt - NP/IFP: strong
provincial govt.
• avoid ‘F-word’, instead: what will work?
• Final Constitution 1996
– quasi-federal
– LG with strong protection in Constitution
• remains contentious until today
Provinces
• directly elected (PR) provincial parliaments
• indirectly elected Premier
• legislative powers protected in Constitution
– some exclusive, most concurrent with national
• (entirely) dependent on national grants
• provinces represented in Parliament (NCOP)
• debates:
– underperformance/maladministration (‘text book
saga’)  national intervention
– ANC is examining options for merging/changing role
– democratic deficit: provincial parliamentarians
unaccountable (no constituency, no taxing power)
Local government
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278 municipalities with elected municipal councils
Constitution lists municipal powers and broad mandate
supervised by provinces (& national govt.)
high degree of self-sustainability (property taxes,
service fees  constitutionally protected)
– E.g. > 85% of operating costs self-funded
• national govt. redistributes through grant system
• Debate:
– underperformance/maladministration
– financial viability
– expectations too high?
• Why multi-level government and what are the
dangers?
• Broad overview of arguments, centred
around:
1. democracy
2. development
3. cultural, religious & ethnic diversity
• NB application is context-specific!
1 Development
• ‘improves allocative efficiency’ – better able
to match preferences of residents
• enhances sustainability of development
through ‘better citizen participation’ in it
• ‘stimulates innovation and experimentation’ in
service delivery
– e.g. role of SA provinces in provision of free antiretroviral drugs
1 Development
• ‘breeds corruption’ - local discretion and
proximity result in elite capture
• ‘promotes inequality’ – decentralised taxing
and spending increases disparities
• ‘causes macro-economic instability’ –
decentralised taxing, spending and borrowing
may destabilise the economy
• requires high levels of capacity
2 Democracy
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‘restrains concentration of power’
‘stimulates citizen participation’
‘enhances accountability’
multiple sites of politics is ‘good for multiparty democracy’ – requires mutual tolerance
– e.g. opposition governing cities
• subnational governments are ‘seedbed for
future leaders’
3 Cultural, religious and ethnic
diversity
• ‘diffuses competition for power’
• ‘opportunities to govern for more than one
group’
• ‘opportunities for special accommodation of
specific groups’
• ‘greater sense of unity’ through recognition of
diversity
• responsive and caring local/regional government
‘(re)connects people to the State’ – constructing
Nation State
3 Diversity
• ‘weakens national unity by accentuating
identity’
• ‘weakens national unity by stimulating
secessionist tendencies’
• none of the benefits/concerns are absolute must be balanced in context-specific manner, e.g.
– Ethiopia: ‘ethnic’ federalism, right to secession etc.
– South Africa: avoid ethnicity as political currency
• appropriate design of the Constitution (and
statutes)
• Three indicators
– autonomy/self-governance – how much local
discretion?
– supervision – oversight role of national govt.?
– cooperation – levels of govt. working together?
Development
• ‘improves allocative efficiency’ – better
match preferences of residents
• ‘enhances citizen participation’
• ‘stimulates innovation and experimentation’
in service delivery
Self-govt.
Development
• ‘breeds corruption’ - local discretion and
proximity result in elite capture
• ‘promotes inequality’ – increases
Central
disparities
supervision
• ‘causes macro-economic instability’
decentralised taxing, spending and
borrowing may destabilise the economy
• requires high levels of capacity
2 Democracy
• ‘restrains concentration of power’
• ‘stimulates citizen participation’
• multiple sites of politics is ‘good
for multi-party democracy’
– stimulates mutual tolerance
Self govt.
Questions wrt autonomy/selfgovernment
• do they have their own democratic legitimacy?
• are their powers protected?
– does Constitution itself devolve by specifing/listing
powers? (e.g. RSA)
– does Constitution instruct nat. govt to devolve? (e.g.
India / Nigeria / Ethiopia)?
– can courts pronounce on division of powers?
• are MLGs permitted to raise their own revenue
and/or borrow?
• do they control their own administrations?
– RSA: LGs/Prov. appoint their own
– Uganda: senior LG managers appointed by central
govt
Questions wrt. cooperation
• Does Constitution bring together levels of
government in national institutions
(executive/legislative)?
– RSA: National Council of Provinces, Financial &
Fiscal Commission etc.
– Ethiopia: House of Federations
• does Constitution encourage cooperation and
consultation across levels of govt?
– RSA: Ch 3: ‘cooperative government’
Questions wrt. supervision
• is subnational activity subject to supervisory
regulation?
• is national government empowered to monitor
subnational govts?
• is national government instructed to support
subnational govts?
• is there provision for intervention when a
subnational government fails? checks and
balances?
• does national government redistribute resources
across subnational govts?
– intergovernmental grants (RSA: ‘equitable share’)
Remarks on Copac Draft Constitution
of 18 July 2012
Vision on devolution?
• Terminology  unitary state with devolution, based on
Constitution
devolution is a principle of “Whenever appropriate, governmental powers and
good governance (s 3(2)(l)) responsibilities must be devolved to provincial and
metropolitan councils and local authorities which are
competent to carry out those responsibilities efficiently
and effectively” (s 14.1(1))
Objects of devolution in s 14.2
1. difference between constitutional principle – instruction
to central govt. to implement
2. when is devolution ‘appropriate’ and when is an
authority ‘competent’?
3. who decides?
4. will courts play a role?
Compare s 50(4) Constitution of
Ethiopia
• State government shall be established at State
and other administrative levels that they find
necessary. Adequate power shall be granted
to the lowest units of government to enable
the People to participate directly in the
administration of such units.
• after almost 20 years - meaning still uncertain
Compare s 156(4) RSA Constitution
• “The national govt…must assign to a
municipality…the administration of a matter
which necessarily relates to local government
if a) …most effectively administered locally; and
b) the municipality has capacity to administer it.”
• after 15 years - meaning still uncertain, no
jurisprudence
Local authorities
• urban local authorities / rural local authorities with
elected councillors
– single election date (s 14.4(1)(a))
• “to represent and manage the affairs of people in
urban/rural areas” (s 14.11(1)/ 14.12(1))
• elected mayors/chairpersons
• Act of Parliament may confer executive powers on
mayors of urban local authorities but then they must
be directly elected
• Cllr/mayor/chairperson can be ‘impeached’ but only by
council
14.13
Functions of local authorities
1) Subject to this Constitution and any Act of Parliament, 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 has all the powers necessary for
it to do so.
2) An Act of Parliament may confer functions on local
authorities, including—
a) a power to make by-laws, regulations or rules for the effective
administration of the areas for which they have been
established;
b) a power to levy rates and taxes and generally to raise sufficient
revenue for them to carry out their objects and responsibilities.
• does para. (1) suggest original, constitutional powers?
• power to raise revenue will depend on Act of Parliament
Provincial/metropolitan councils
Provincial Council :
Metropolitan councils:
• Governor, appointed by
President, nominated by
party that fared best in NA
elections in that area
• Senators/MPs with
constituency in area
• Women MPs from area
• Mayors/chairpersons of area
• Senator Chiefs
• 10 elected councillors (PR)
using NA elections
• Mayors (+ Mayor of 2nd
biggest local authority in
Harare metropolitan
province)
• Senators/MPs with
constituency in area
• Women MPs from area
• Mayors/chairpersons /
Deputy mayors/chairpersons
S 14.7 - functions of
provincial/metropolitan council
“…social and economic development…, including—
a) planning and implementing social and economic
development activities in its province;
b) co-ordinating and implementing governmental
programmes in its province;
c) planning and implementing measures for the
conservation, improvement and management of natural
resources in its province;
d) promoting tourism in its province, and developing
facilities for that purpose;
e) monitoring and evaluating the use of resources in its
province; and
f) exercising any other functions, including legislative
functions, that may be conferred or imposed on it by or
under an Act of Parliament.
• Nature of Provincial/Metropolitan Council?
– delivery / implementation?
– intergovernmental coordination?
• but power ‘must be devolved’ to them if appropriate..
• no specific provision on role/function of Governor
(other than chairing Prov./metr. Council)
• democratic legitimacy / accountability?
“Members of a provincial or metropolitan council are
accountable, collectively and individually, to residents of
their province and the national government for the exercise
of their functions.”
Allocation of revenues between
tiers of government
S 17.4 An Act of Parliament must provide for—
a) the equitable allocation of capital grants
between provincial and metropolitan councils
and local authorities; and
b) any other allocations to provinces and local
authorities, and any conditions on which those
allocations may be made.
Not less than five per cent of the national revenues
raised in any financial year must be allocated to the
provinces and local authorities as their share in that
year.
• Provinces and LG guaranteed slice of cake
(compare: Kenya: 15% / RSA: no guarantee)
• division between prov./LAs and division
among provinces/LAs in Act of Parliament
• Does process towards Act of Parliament
involve provinces/LAs? Consultation?
– No Financial Commission
Supervision
• No provision empowering national
government intervention into LAs
• No constitutional checks on intervention,
except: no longer remove cllrs/mayors from
office
Supervision
• Are there provisions that empower and regulate
central government monitoring, supporting and
intervening into PCs/LAs?
• 17.2 Parliament must monitor and oversee
expenditure by the State …at every level,
including… provincial and metropolitan councils
and local authorities…
• 17.12 Auditor-General audits accounts of
provincial councils and local authorities
• Supervision/oversight by the executive not
provided for/regulated  limits will depend on
Parliament
Cooperation
• Are there central institutions/mechanisms, bringing
together levels of government in dialogue/consultation?
• fair representation of regions in State institutions (e.g. s
2.10(1))
• Provincial Councils bring together local, provincial and
national govt. – effective?
• no central govt. institutions that include representatives
of LG / PCs
• Financial Commission?
• Organised local government?
• Reliance on general principles for cooperation (s 14.2)
and call for Act of Parliament
Accommodating diversity
• Choice made for ‘non-territorial’
accommodation of diversity
– equitable access to resources for all ethnic
communities (e.g. s. 2.10(2))
– President must consider “…ethnic, regional and
gender considerations” in appointing Ministers (ss
6.12(3) / 6.16(4))
– Etc.
Conclusion
• no drastic changes to existing system
• vision on devolution?
• does ‘constitutionalism’ extend to division of
authority among three levels?
• devolution entrenched as a principle but leaves it
to national government to control devolution
– principle of devolution, general functions but no
specific powers allocated by Constitution
• consultation input from communities, governors,
local authorities, organised local government
• how important is devolution?
Thank You