By Tinashe Chigwata
Chapter 14 of the 2013 Constitution, which provides for provincial and local governments, is the only Chapter of the Constitution that has got a preamble of its own. The preamble reads:
Whereas it is desirable to ensure: (a) the preservation of national unity in Zimbabwe and the prevention of all forms of disunity and secessionism; (b) the democratic participation in government by all citizens and communities of Zimbabwe; and (c) the equitable allocation of national resources and the participation of local communities in the determination of development priorities within their areas; there must be devolution of power and responsibilities to lower tiers of government in Zimbabwe.
The preamble provides the basis for devolution. However, the foundation may not be very strong given the use of the words ‘whereas it is desirable’ which are prone to a wide range of interpretations.
It is nevertheless striking that the Constitution identifies devolution as the most desirable form of diffusing governmental powers, responsibilities and resources in Zimbabwe to realise development, democracy and peace, including national integration.
The requirement for devolution in the preamble is further given effect by section 264(1). The provision provides that ‘[w]henever appropriate, governmental powers and responsibilities must be devolved to provincial and metropolitan councils and local authorities which are competent to carry out those responsibilities efficiently and effectively’.
At face value, this provision suggests that questions of when to devolve, what to devolve, whom to devolve, and devolution for what purposes, are completely left to be determined by the national government.
But a closer look at the history of over-centralisation of power, poor service delivery, and perceived marginalisation of certain areas, among other reasons which motivated the adoption of devolution, it would make it seem illogical to come to that conclusion.
Moreover, the fact that devolution, relative to other forms of decentralisation, is recognised as one of the Founding Values and Principles of the Constitution suggests that devolution is ‘now’ rather than ‘futuristic’.
In other words, devolution is desirable now and should be basis for organising the three-tier form of government recognised in the Constitution, and whose establishment is not made conditional on ‘competence’, among other qualifications.
Thus, an argument can be made that under the new constitutional order provincial and local governments should exercise some devolved powers.
This nevertheless does not preclude the national government from deconcentrating authority and delegating power.
4.1. The objectives of devolution and principles of provincial and local government
Section 264(2) of the Constitution provides the general objectives of devolution. Devolution is necessary to ‘give powers of local governance to the people and enhance their participation in the exercise of the powers of the State and in making decision affecting them’.
It must be implemented to ‘promote democratic, effective, transparent, accountable and coherent government in Zimbabwe as a whole’. Given that Zimbabwe is an ethnically diverse country, devolution is important to ‘preserve and foster the peace, national unity and indivisibility of Zimbabwe’.
While there is nothing wrong with nationally led development with respect to ‘national issues’, devolution is a means of ‘recognis[ing] the right of communities to manage their own affairs and to further their own development’.
If properly designed, devolution can ‘ensure the equitable sharing of local and national resources’. Lastly, for locally driven development to have a higher chance of success, devolution is necessary to ‘transfer responsibilities and resources from the national government in order to establish a sound financial base for each provincial and metropolitan council and local authority’.
It can be observed that the Constitution envisages the devolution of powers, responsibilities and resources not just to the provincial and local levels but to structures beyond the local government level.
The objectives of devolution are supported by the general principles of provincial and local government enshrined in section 265 of the Constitution.
The provision provides that provincial and metropolitan councils and local authorities must, within their spheres, ‘ensure good governance by being effective, transparent, accountable and institutionally coherent’.
They must ‘assume only those functions conferred on them by th[e] Constitution or an Act of Parliament’. In other words, their conduct should be legal at all times. The Constitution requires these subnational governments to ‘exercise their functions in a manner that does not encroach on the geographical, functional or institutional integrity of another tier of government’.
They are encouraged to ‘cooperate with one another, in particular by (i) informing one another of, and consulting one another on, matters of common interest (ii) harmonising and coordinating their activities’. Even with devolved powers, provincial and local governments are required to ‘preserve the peace, national unity and indivisibility of Zimbabwe’.
They must always work towards ‘secur[ing] the public welfare; and ensure the fair and equitable representation of people within their areas of jurisdiction’.
While they are not hard rules, these principles demand positive action from provincial and local governments.