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Suspension of Harare Mayor: Why the local government Minister is violating the Constitution

Alex T. Magaisa[if lt IE 9]><![endif]

I have read that the Minister responsible for local government affairs, Saviour Kasukuwere (the Minister) has suspended the Mayor of Harare, Bernard Manyenyeni (the Mayor).

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Media reports state that the Minister based his decision to suspend the Mayor on s. 114(1)(d)(ii) of the Urban Councils Act. The apparent reason for the suspension is that the Harare City Council unprocedurally appointed a new Town Clerk, Mr James Mushore and that the Mayor has refused to take ministerial instructions to rescind the appointment. Kasukuwere suggests that the Mayor breached s. 265(1)(b) of the Constitution. He further states that the Mayor will be brought before a “competent authority” to answer those charges.

Unless the media has misrepresented Kasukuwere’s letter, it is shocking in its glaring omissions and inaccuracies on law. I do not know if the Minister consulted the Attorney General, who in terms of the Constitution, is the principal legal adviser to government. If the Attorney General has indeed provided advice for the Minister’s present action, then it reflects very badly on his office.

Constitutional Provision for Removing a Mayor

The Constitution is very clear on the issue of removing a Mayor from office. The relevant provision is s. 278 of the Constitution. It sets out the circumstances under which the seat of a Mayor becomes vacant and the circumstances under which he may be removed. This provision is conspicuous by its absence in the present process of removing the Mayor. Failure to use this provision is fatal to the action taken by the Minister for the simple reason that it is the exclusive provision under which a mayor can be removed from office. This is because s. 278(3) states very clearly that:

“A mayor or councillor of a local authority does not vacate his or her seat except in accordance with this section”

The ordinary meaning of this provision is clear and there is no reason to depart from it. It is that if anyone wants to remove a mayor, it must ONLY be done in accordance with s. 278. But as I have stated, this provision is conspicuous by its absence in the Minister’s communication. Instead, he makes reference to s. 265(1)(b), which has nothing to do with the removal of a mayor but deals with general principles of local government. How do you purport to remove a mayor when you flagrantly disregard a clear provision of the Constitution which is designated to deal with the issue?

The Constitution is the supreme law of the land, and whatever the Urban Councils Act states, it has to be in conformity with the Constitution. Let us observe what s. 278 says regarding the removal of a Mayor.

Circumstances under which a Mayor may Vacate Office

278(1) provides for circumstances in which a Mayor’s seat becomes vacant. It provides that a Mayor’s seat becomes vacant in accordance with s. 129 of the Constitution, that is, if any of the circumstances listed under s. 129 occur. Now, s. 129 is the same provision that lists circumstances under which a Member of Parliament may lose his or her seat. These include where one is convicted, where one ceases to be a member of his political party, where one misses a certain number of consecutive meetings, etc. There is no suggestion in this case that the mayor has done anything that fulfils any of those circumstances, so it is irrelevant.

I must point out here that one of the principal reasons for using the same provisions for mayors and councillors as are used for MPs was to give better protection to mayors and councillors who were previously vulnerable to the whims of a Minister under the Urban Councils Act. In the past, the tenure of mayors and councillors seats was not a constitutional issue but was dealt with under legislation. There were always problems of the Minister for local government using his powers to interfere in local authorities and removing mayors and councillors, precisely what the Minister is trying to do in this case. S. 278(1) changed this in order to provide security of tenure to mayors and councillors, just as MPs are protected by the Constitution. In other words, what the Minister has done is contrary not only to the letter of the law, but it is also a violation of the spirit of the law. What the Minister is doing is the exact mischief that s. 278 was designed to curb.

Removal by a Tribunal

278(2) deals with the removal of mayors and councillors. It provides that: “An Act of Parliament must provide for the establishment of an independent tribunal to exercise the function of removing from office mayors. Chairpersons and councillors …” The language used in this provision is mandatory – there MUST be primary legislation which establishes “an independent tribunal” which deals with the removal of a mayor. In other words, the only body that has the authority to remove a mayor is an independent tribunal established under an Act of Parliament.

The Minister does NOT have the power to remove a mayor.

The question to be asked is whether such legislation exists. Has the Urban Councils Act been amended to provide for such an independent tribunal to deal with the removal of a mayor as required by s. 278? To my knowledge, the Urban Councils Act has not yet been realigned with the Constitution to provide for such an independent tribunal. To the extent that the Urban Councils Act does not comply with the mandatory provisions of the Constitution, it is deficient and any actions taken under its terms are invalid.

However, even in the unlikely event that such provisions do exist under the Urban Councils Act and that such an independent tribunal does exist, it is clear that only that tribunal has the power to remove a mayor and not the Minister. Suspending a mayor is part of the process of removing a mayor and to the extent that the Minister is purporting to exercise the function of suspending a mayor he is exercising a power that he does not have; a power that only vests in an independent tribunal. For that reason, it is arguable that the Minister is acting beyond his powers. A process of removal disguised as a suspension is contrary to the letter and spirit of the law.

Non-compliance with exclusive grounds of removal

Finally, s. 278(2) sets out the grounds upon which a mayor may be removed from office. This is an exclusive list of five grounds – in other words the removal MUST only be on any of those five grounds but nothing else. It is not necessary to re-state these grounds save to state that if the removal (including the suspension) is not on the basis of any of those grounds listed under s. 278(2), then such removal (or suspension) is constitutionally invalid. Now, looking at the provisions cited by the Minister, none of them makes reference to s. 278(2) or the grounds listed thereunder. The Minister has cited the wrong provisions. His purported suspension is therefore without legal basis. He does not have the power that he is claiming to apply.

He cannot argue that he is using the Urban Councils Act because between the Urban Councils Act and the Constitution, the latter takes precedence. The principle that the Constitution takes precedence over legislation is an elementary one but for the avoidance of doubt, s. 2 of the Constitution states that: “This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of its inconsistency.” If this does not make the hierarchy of laws clear, then nothing else will.

The fact of the matter is that the Minister has acted outside the Constitution. Yet in taking the oath of office, he pledges to uphold the Constitution. If indeed, he has a case against the mayor, he must go back to the drawing board, study the Constitution and act in accordance with its provisions. I suspect the reasons why s. 278 has not been cited or used in this instance that the Urban Councils Act has not been realigned with the Constitution and therefore, its requirements have not been fulfilled. The Minister cannot use provisions that do not exist in the law. But that is the price that the government must pay for dragging its feet in the task of realigning the legislation to the Constitution. And no, they can’t take shortcuts which blatantly disregard and violate the Constitution.

waMagaisa

Not to be reproduced without the author’s express permission: wamagaisa@gmail.com

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