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. – – – – – 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 • • • • 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 • • • • ‘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