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Dr James Tsabora

Devolution is here to stay. It is an indelible part of the 2013 Constitution. It is also a key feature of the recently adopted five-year economic plan called the National Development Strategy 1 (NDS1).

Indeed, it was importantly accommodated in the Transitional Stabilisation Programme (TSP) and the Vision 2030 policy documents, which are both instruments of the Second Republic.

This in itself speaks volumes — the 2013 — 2018 ZIMASSET had curiously and inexplicably, relegated devolution to the background. Since it is a constitutional injunction, it will permanently redefine and reshape Zimbabwean politics and the trajectory of national economic development.

Despite massive media campaigns and focus on devolution, many have not known what this process is all about. To some, it is the decentralisation of services currently provided by Government. To others, it represents building capacity of the two other tiers of Government so that they can receive and assume some of the powers currently possessed by central government, and exercise them at a more local level.

Yet to other persons, it is the shedding of governmental power, so much concentrated in central government, to lower levels of government, represented by provinces, and local authorities. Other people regard devolution as akin to a movement from strict unitary state to a federation, where the provinces are equated to federal regions exercising almost the same power as central government. From all this surmise, one can conclude that there is a transfer of power from the centre, which is central government to the lower sub-national tiers of government.

Under the Constitution, these sub-national tiers of government are clear; they are provincial and metropolitan councils and also local authorities, represented by urban councils and rural district councils.

It must however be accepted that the devolution expressed in the Constitution will not lead to a federal state. The result of the devolution must leave Zimbabwe as a unitary state, as recognised by the Constitution. Thus, no matter what amount of power is given to provinces and local authorities, devolution must not breed secession or federalism. The Constitution is fully aware that devolution might be construed to mean this — it thus mentions that what is to be devolved is governmental powers and responsibilities, not the state.

Further, the Constitution inserts a preamble on the parts dedicated to devolution, stating that devolution must be pursued ‘to ensure the preservation of national unity in Zimbabwe and the prevention of all forms of disunity and secessionism.’ Importantly, the Constitution identifies one of the objectives of devolution as the need to ‘preserve and foster the peace, national unity and indivisibility of Zimbabwe’.

Clearly, the provinces must be made aware of this trajectory — central government decides which powers it will transfer, to whom and when such transfer is to take place. In all this, a solid relationship has to be thrashed out through law and policy so that no tier of government is seen to be doing anything that endangers devolution. In this vein, the Constitution requires that laws to be passed by central government must ensure that all tiers of government ‘exercise their functions in a manner that does not encroach on the geographical, functional or institutional integrity of another tier of government’. Other laws will be passed to ensure that there are appropriate mechanisms and procedures for coordination between central government, provincial and metropolitan councils and local authorities.

The NDS1 embeds devolution as a fundamental policy thrust to be vigorously implemented in its five -year period. According to the NDS1, devolution is to be implemented on the basis that it seeks to make the system of governance community-based and people centred. This is achieved by enhancing community participation in making decisions on local development issues that affect them and in the exercise of governmental powers, whilst upholding the preservation of national unity.

From this, it is clear that the NDS1 locates devolution in Zimbabwe’s developmental path — there cannot be talk of national socio-economic development without contextualising such development in devolution.

This was the mistake of ZIMASSET, which fortunately has not been repeated by the NDS1 and it is to be applauded. Any national policy document that totally ignores a key constitutional objective such as devolution lacks seriousness, especially where such national policy is crafted after the Constitution is already in force.

Apart from properly locating devolution, the NDS1 identifies the importance of capacitating local regions before or during the transfer of such power. It expresses that empowerment of the lower tiers of Government must be persuaded with seriousness. Previously, local governments were part of the diluted ‘devolution’ form called administrative decentralisation. This fell short of devolution since central government remained omnipresent, all local governments remained accountable to the centre for the implementation of Government policies at these levels. The nature of accountability equated to legislative prescriptions to local government institutions.

The Minister of local government had enormous powers which pre-supposed that local government institutions needed constant supervision, inspection, prescriptions, direction and monitoring. Through this framework, local government institutions became subservient to central government — there was no degree of real or relative autonomy.

To the provinces and local authorities, the message is clear. Central government will only devolve certain powers and responsibilities based on competence of local government institutions. This means that there is much work to do — local government institutions that do not demonstrate the required levels of competence will likely miss out. But central government will not stop there — it will progressively and actively seek to capacitate those local government institutions so that they acquire competence.

Since devolution is a key constitutional obligation, local government institutions that do not work to meet set criteria, or that continuously fail to meet set targets for devolution to begin will be acting in a manner that is inconsistent with the Constitution. On its own, the failure to meet devolution standards and targets must be a cause for investigation in local government affairs. For local government secretariat, this may mean dismissal from employment. There are few options to choose when an institution is given adequate resources, but squander them in a manner that results in its failing to meet required criteria. In the context of development, this approach can bear fruits — devolution must be seen from both the political and economic sense.

There has been much debate about the composition of the provincial councils.

The Constitution creates the controversy. As it stands, provincial councils are composed of ten elected councillors, senators and members of Parliament from that province, two senator chefs elected from that province, women Members of Parliament elected through proportional representation from that province and mayors and chairpersons from urban and rural councils in that province.

This composition is problematic for two reasons — it complicates Parliament’s oversight role. Members of Parliament cannot sit on provincial councils since these councils can be called to answer before Parliament itself. The same applies for senators. The second reason is constitutional — section 129(1)(h) of the Constitution itself prohibits Members of Parliament from being members of provincial councils, otherwise they lose their seats in Parliament. There was therefore a clear contradiction in the Constitution that needed to be addressed.

The correction seems to be coming in the form of the Constitutional Amendment No. 2 Bill, which seeks to remove all Members of Parliament and chiefs from the provincial councils. Unsurprisingly, this will infuriate Members of Parliament — they always regard the provincial council as a kingmaker. In their view, their exclusion means they lose relevance in provincial affairs despite their constituencies falling in that province. Of course, this is a parochial view — provincial councils are more developmental and Members of Parliament have no constitutional role in development.

This is echoed by the NDS1 itself. Paragraph 729 of the NDS1 identifies key socio-economic priorities as including comprehensive devolution capacity development programme informed by needs assessment; upgrading, rehabilitation and maintenance of existing infrastructure across all the sectors; construction of new infrastructure across all sectors; promotion of value edition and beneficiation; establishment and strengthening of Special Economic Zones; human capital development; and digitalisation.

These priorities are removed from the constitutional mandate of legislators. They must therefore be exorcised from the provincial councils lest they obstruct development by playing politics. Their role is limited to representation, law making and oversight at national level. The point is that Members of Parliament are part of a national legislature; they cannot come back and be part of a local government structure.

The real possibility of double-dipping accompanies the other problems militating against their involvement.

The Devolution policy (para 77-80) envisages the eventual handover of the powers of PDCs to empowered local government institutions. In this vein, there seems to be no more than a temporary role for PDCs, the Devolution policy is clear that staffing and recruitment in provinces is the preserve of the respective local government institutions.’

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◆ James Tsabora is a constitutional law expert and lecturer in the Faculty of Law of the University of Zimbabwe. Views expressed here represent individual opinion, not that of any organisation. His email address is [email protected]