The Urban Councils Act and the Rural District Councils Act establish urban and rural local authorities respectively, as well as provide for the supervisory and monitoring roles of national government in the running of local authorities. Practically speaking, this means Local Government does not operate independently of Central Government – all its activities are coordinated by the parent ministry. This is not in line with democratic forms of governance. The ideal situation is that Local Government administration is regulated by the Constitution rather than by Acts of Parliament.
So the starting point should be to include local governance issues in the new Constitution in line with international human rights standards. Below is information on how the various constitutions starting with local Draft Constitutions have dealt with one topic under Local Government, namely Principles of Local Government. It is against such a background that a critical analysis has to be made of the Urban Councils Act to see whether it meets the grade.
Other jurisdictions:
The executive and legislative authority of a municipality in the Republic of South Africa is vested in its Municipal Council. A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.
In Kenya, county governments established under this Constitution shall reflect the following principles: county governments shall be based on democratic principles and the separation of powers; county governments shall have reliable sources of revenue to enable them to govern and deliver services effectively; and no more than two-thirds of the members of representative bodies in each county government shall be of the same gender.
Drafts in relation to Local Govt:
In the 2000 Rejected Constitutional Draft it was decided that provincial councils and local authorities must be democratically elected and given as much autonomy as is compatible with good governance. Their functions and responsibilities were decentralized and transferred from the central Government to provincial councils and local authorities in a co-ordinated manner. This decentralization had to be a principle applying to all levels of local government so that there was participation by the people and democratic control in decision-making. It was laid out that each provincial council and local authority should have a sound financial base with reliable sources of revenue and that they be enabled to plan, initiate and execute policies in respect of all matters affecting their communities;
Co-operation between and among provincial councils and local authorities and coordination of their activities was encouraged. The Kariba Draft is the same as the 2000 Constitutional Commission Draft.
The alternative NCA-proposed Draft states that the purpose of local government will be to provide democratic and accountable government for local communities, to promote social and economic development and to provide participation by the people in decision-making.
The Law Society Constitutional Model is similar to the NCA Draft but leaves out issue of the incorporation of Traditional Leaders in local government structures.
Transparency needed
The laws relating to Local Government should be such that they ensure that there is transparency and accountability on the part of elected officials who should control what unelected employees do in the course of their duties because, at the end of the day, it is the elected official who has to answer the electorates queries on local governance. The law should not allow the relevant Minister to be a law unto himself or herself by being answerable to no one. If local governance issues find their origin in the Constitution, the Minister will be bound by it and cannot override the Constitution; neither can any provisions which breach fundamental rights and human freedoms ensconced in the Bill of Rights survive in an Act of Parliament when they are clearly ultra-vires the Constitution.
Post published in: Opinions