Since the adoption of the new Constitution, the struggle for Constitutionalism has intensified. It is the view of many that if the new Constitution was implemented in full and in the spirit in which it was drafted, then 70 per cent of our problems would be addressed. However since March 2013 when the President signed the law into effect, the State has moved at a snailâ€™s pace at the process of implementing the new Constitution by amending or â€œaligningâ€ all existing legislation with the new Constitution.
One of the key aspects of the new Constitution are the provisions affecting Local Government. In the Constitution elected local authorities are elevated to the position of autonomous entities which have the powers and authority to â€œgovernâ€ the areas under their jurisdiction. This strips the Minister of Local Government of his right to give directives to local authorities and to arbitrally suspend or dismiss Councilors. Despite this the Minister has continued to act as if the new Constitution was not in effect and had become the new supreme law of the State.
On the 20th of April 2016, the Minister attempted to â€œdismissâ€ the Mayor of Harare because the Council has appointed a new Town Clerk who is not a lackey of Zanu PF. In response the MDC has asked the Lawyers for Human Rights to take up this matter with the Courts and this process is underway. The letter below has been sent to the Minister in the interim as we wait for the Courts to rule on this issue.
Harare, 22nd April 2016
PREPARED BY THE ADVOCATE WORKING ON THE CONSTITUTIONAL CHALLENGE TO THE MINISTERIAL DIRECTIVES
The Honourable Minister of Local Government,
Public Works and National Housing
20 APRIL 2016
RE :Â Â Â PUPORTED SUSPENSION OF HIS WORSHIP THE MAYOR OF HARARE
COUNCILLOR BERNARD MANYENYENI
ATTENTION HON S. KASUKUWERE
We represent His Worship the Mayor of Harare, Councillor Bernard Manyenyeni kindly note our interest.
Our client presented us with a letter purporting to suspend him in terms of Section 114(1)(d)(ii) of the Urban Councils Act[Chapter 29:15] signed by yourself. Regrettably the Honourable Minister has not benefitted from competent legal advice as this section of the Urban Councils Act is in clear violation of Section 278 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013.
Whereas under the Urban Councils Act (which has not been aligned to the new Constitution) your predecessors enjoyed unfettered powers to suspend and dismiss in terms of Section 114, sadly you donâ€™t. A new legal regime came into effect with the promulgation and signing of the new Constitution and its coming into effect.
The Constitution of Zimbabwe Amendment (No. 20) Act 2013 is the Supreme Law of the land and any Act of Parliament, Ministerial discretion or Statutory instrumentÂ inconsistent with it is invalid and a legal nullity.
The Sixth Schedule, Part 4 paragraph 10 provides that â€œSubject to this schedule, all existing laws continue in force but must be construed in conformity with this Constitution.â€Whereas the Urban Councils Act as an existing law continues to be in force, some sections of it which are inconsistent with the Constitution cannot at law be construed to be in conformity with this Constitution.
We accordingly advise that the purported suspension of the elected Mayor of Harare, His worship Councillor Manyenyeni is a legal farce, void ab initio, a legal nullity, of no legal force or effect and an exercise in futility. Our client will report for work and tender his services in accordance with his elected mandate which also finds Constitutional expression in section 274 of the Constitution being to represent and manage the affairs of the people in the City of Harare.Should you wish to suspend or remove our client please proceed in terms of Section 278 of the Constitution of Zimbabwe.
Please be guided accordingly.
ZIMBABWE LAWYERS FOR HUMAN RIGHTSPost published in: Featured