CHRA takes Ministry to court for rescinding Town Clerk appointment

Saviour Kasukuwere

We the organizations here present,

United under the banner of the Harare Metropolitan Residents Forum (HamRef) with whom the Combined Harare Residents Association (CHRA) is our secretariat,

Concerned by the perpetual political and administrative inconsistencies being championed by the Minister of Local Government, Public Works and National Housing, Hon Saviour Kasukuwere,

Acknowledging and submitting to section 2 of the constitution, this spells out the supremacy of the Constitution above any other subsidiary law/by-law,

Maintaining and further reinforcing that the Urban Councils Act is inconsistent with the law/constitution based on legal fact and precedence,

Worried about the continued suffocation of chapter 14 of the constitution which clearly spells out devolution and local authorities autonomy,

We therefore do recognize that on the 24th of March, the City of Harare held a Special Council Meeting in which it approved the appointment of James Andrew Mushore as the substantive Town Clerk for the city of Harare. Just a few hours after the passing of this resolution number 8, Hon Kasukuwere reacted on the double by writing a letter to the Mayor directing council to rescind its decision to appoint the substantive Town Clerk.

As the Harare Metropolitan Residents Forum, we note and conclude guided by the Constitution of Zimbabwe, through section 2 (Supremacy Clause) which states that the constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. It goes further in section 2(2) to state that the obligations imposed by the Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them. The preamble to chapter 14 of Constitution on Provincial and Local Government directs that there must be devolution of power and responsibilities to lower tiers of government in Zimbabwe. We learn from section 276(1) of the Constitution that local authorities have the right to govern and manage the affairs of the people within the area for which they have been established. They must govern on their own initiative and have all the powers necessary to do so.

We also acknowledge that it is within this framework and spirit that the Special Council meeting appointed James Andrew Mushore as the substantive Town Clerk, rightfully ignoring the procedure laid down in the Urban Councils Act taking cue from the fact that the Urban Councils Act is subservient to the Constitution which is the supreme law of the land.

We conclude by informing Minister Kasukuwere that he misdirected himself by relying on section 314(1) which reads “where the Minister is of the view that any resolution, decision or action of a council is not in the interests of the inhabitants of the council area concerned or is not in the national or public interest, the Minister may direct the council to reverse, suspend or rescind such resolution or decision or to reverse or suspend such action.”

It is now common cause that the procedure as laid down in the Urban Councils Act militates against the letter and spirit of the Constitution that empowers local authorities to manage the affairs of the people within the area for which they have been established and govern on their own initiatives.

Having studied and participated in this issue, we would like to categorically make clear of the following:

1. That the process of appointing the Town Clerk was participatory, transparent and inclusive,
2. As representative of residents of Harare, we confirm that the appointment of the new Town Clerk is consistent with our wishes, needs and demands whose weight is contained within the rates and bills that we entrust Harare city council with,
3. That the appointment of the new Town Clerk seem not to be in the interest of the Minister himself which raises question over issues of patronage and centre local relations,
4. After the transparent and intensive selection and interviewing process we are looking forward to the assumption of duty by the new and substantive Town Clerk for the City of Harare and this should be done without undue interference from central government.
5. That as residents, we have already sought the consent of the High Court guided by the precedence set in the case of Minister Kasukuwere versus Mayor Hamutendi Kombai and other councillors of Gweru. We are aware already that the courts have deemed the Urban Councils Act as unconstitutional and the same Minister errant at law.

Our concerns borrow from the speed at which the Minister reacted to the Special Council meeting resolution on item number 8 (the meeting ended at around 3pm and by 5pm of the same day a letter of rescission had already been delivered) before getting the views of the inhabitants of the area concerned which glaringly points to the fact that it is only the Minister himself who is not happy with the council resolution.