Decentralisation In The Zambian Constitution

A CASE FOR DECENTRALISED GOVERNMENT IN THE NEW ZAMBIAN CONSTITUTION A concept paper prepared for the MS Zambia Knowledge and Strategy Team on Inclusion and Effective Voice

Authored By: Nachilala Nkombo, Lee Habasonda and Ian Mwiinga

December 2008

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CONTENTS

1. Introduction

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2. Decentralisation and Local Government in Zambia: Major Historical Institutional Highlights and Current Institutional Challenges

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2a) Past Local government Service Highlights in Zambia

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2b) Current Local government Institutional deficiencies in Zambia.

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3. Strengths of the recommendations by the current Constitution Review Commission on Decentralised Governance

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4. Weaknesses in the recommendations of the current Mung’omba draft Constitution on Decentralised Governance and Proposals for strengthening them.

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4.1 Stipulate the Levels of government under decentralised government

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4.2 Stipulate the vertical separation of powers and basic functions of the

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different levels of local government clearly in the constitution. 11 4.3 Central government and Intra-government cooperation 12 4.4 Financing Local Government 13 4.5 Integrated planning 13 5. Conclusion 15 References

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1. Introduction The Zambian people have been involved in several processes of reviewing their republican constitution since 1973. The latest effort initiated in April 2003 is one that resulted into the Mungomba Constitutional Review Commission’s report with recommendations for modification of several aspects of the current constitution. Following the submission of this report the Government of Zambia legislated the National Constitutional Conference (NCC) Act of 2008 that spells out how this new constitution will be adopted. One of the key aspects in the Mungomba report is the attention paid to how local government should be structured in future in order to enhance accountability of governors and improve service provision. It proposes greater decentralisation of government with specific measures for addressing factors that have hindered decentralisation so far. In 2002 the Zambia government launched a decentralisation policy, whose tenets of devolution are not support by the current republican constitution and the local government act of 1991. The need for a decentralised Government system arises from the desire to bring the government closer to the community. Ideally, a good system of local government should facilitate an efficient delivery of services and promote accountable governance. Commentators have also argued that under a decentralised system of governance “Policy makers are also better able to monitor their subordinates who are in the front-lines of service delivery (Scott A. Fritzen and Patrick W. O. Lim 2006, p.4).” Thus, decentralisation has not only been a question of efficiency in providing social services but social justice in accessing them. Consequently, decentralisation has been a key governance reform issue in the last two decades (jutting and Stock Mayer 2005). Since the republican Constitution is a basic framework that provides a set of rules to restrain citizens and public officials from deviating from the values, goals and aspirations of the nation as a whole (North 2005, 4), the process of developing the new republican constitution of Zambia should not only ensure that the main avenue through which citizens’ right to local governance is provided for but also protected. Thus, this paper makes a case for clearly enshrining a decentralised government system in the new constitution. It highlights the strengths of the recommendations of the draft 2005 Constitutional Review Commission (CRC) report, with respect to good local government and decentralisation, as well as highlighting the weaknesses in the recommendations that

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would continue to undermine the spirit and the letter of decentralised local government in Zambia. It must however be noted that the decentralisation of government is a means and not an end in ensuring good local government. Decentralization consists of a transfer of public functions from higher tiers to lower tiers of the governance structure. Thus, decentralization can be administrative (transfer of civil servants and public functions to the local level), fiscal (devolution of fiscal resources and revenue generating powers), political (devolution of decision making powers) or a mixture of these (Jutting and Stock Mayer 2005). It can also be a process known as agentification, i.e. management of some resources allocated to autonomous and semi-autonomous agencies. The section below highlights the background to decentralisation in Zambia and strengths and weaknesses of the Mungomba report.

2. Decentralisation and Local Government in Zambia: Major Historical Institutional Highlights and Current Institutional Challenges 2a) Past Local government Service Highlights in Zambia During all instances of reforms at the local government level, it must be noted that the provision of service mandates at local level and provision of guaranteed funds to lower tiers of government is not a new undertaking in Zambia. Most Literature on the history of local government in Zambia including the 2005 CRC Report notes the period between 1965 to 1972, as the most stable period in the local government service delivery in Zambia. During this period, electricity was controlled by local authorities and yielded substantial surpluses, which helped finance capital projects and general development. Local authorities also received steady and generous Central Government grants for community developments such as housing, roads, fire services, police and health services. These grants were based on some predetermined formula such as a percentage of the total expenditure. This paper agrees with the CRC observation that it is such a decentralised governance structure and the predictable flow of resources that enabled Zambian local authorities at the time to plan and implement and provide adequate services (CRC Interim Report, 2005). It is for this reason that this paper argues that local

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authorities if accorded sufficient mandates, human and financial resources can increase the level of service delivery to the citizens and stimulate local and equitable economic and social development patterns. 2b) Current Local government Institutional deficiencies in Zambia. Despite the country reverting to multi party politics in the 1990’s, the Local government system has not been in a position to provide service levels at and beyond its historical performance. This is because current legal and institutional structures for local government continue to undermine local democracy and hinder predictable and effective service provision to citizens at the local level. The legal and regulatory challenges that characterize the local government in Zambia were also observed by the CRC, which recommended that the constitution review process should provide an adequate framework to resolve these challenges. These challenges include: i)

The Citizens right to Effective Local Government is not Protected by the Constitution

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Until 18 May 1996, when the Constitution Amendment Act No. 18 of 1996 came into force, the Zambian republican Constitution made no direct reference to local government.

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The current constitution, amended in 1996 does not provide a framework describing the powers and functions for local government in Zambia Vis a Vis central government. Local government has been left to exist within the provisions of an Act of Parliament.

ii) No guidelines on Purpose and performance standards for councils •

The local government Act does not explicitly define the purpose and objectives of local government particularly decentralisation of any form.

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In terms of service delivery, the Act does not set minimum standards for measuring performance in Councils.

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iii) The local government Act vests excessive powers with the Local government minister and central government at the expense of democratically elected local leaders. •

The division of powers and functions between local and central government is not balanced and clear. This has led to Central Government taking over duties such as local revenue collection that the Councils would traditionally undertake.

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Despite the mandate that councillors get from the people, the minister can under the current Local Government Act suspend all councillors. With the approval of the President, S/he is empowered to dissolve all the councils and administer the whole country with appointed local government administrators.

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Though council Mayors and Chairpersons are thereafter elected by councillors from amongst themselves to head Councils, they perform non-executive functions. The local government Act does not clearly stipulate avenues for local council members to hold council staff accountable. Consequently, council members have taken a less proactive role as they are not involved in the design, implementation and evaluation of council affairs.

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The Act leaves out the all-important aspect of local government finance. It does not guide on how local and central government should distribute revenue powers and budget allocation functions equitably. Consequently, traditional local government sources of revenue such as rates from houses, motor vehicle licenses, water supply, electricity distribution and sales tax have been taken over from local authorities by Central Government. Central government grants have for a long period been low and unpredictable.

iv) The supportive, supervisory, autonomous relationships between central/ provincial and local levels of government are not clearly defined •

The local government Act makes no reference to Provincial Administration or how the district councils will relate with the province as well as under which circumstances the provincial administration and central government units can step in to rectify the performance deficits of a failing local government.

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v) Politicisation of government civil service positions at provincial level and parallel implementation structures at local level •

Politicisation is characterised by the role of the President in the appointment and removal of provincial ministers, permanent secretaries, deputies and other administrative staff without approval from local representatives.

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The non-adherence to professional civil service recruitment procedures and affiliation of the appointees to the ruling party is another area where the local government system is politicised?

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Parallel to operations of Town Clerks and Council secretaries, under the local government system in Zambia, the Central Government also functions directly at district level through a number of line ministry departments. These are supervised by the Office of the District Commissioner (D.C). The office of the District Commissioner is established under the Office of the Republican President. This office acts as a patronage instrument of the ruling party because the Republican President appoints the District Commissioners. This makes them unable to objectively engage with affairs at the local level objectively as their allegiance is owed to the appointing authority and the ruling party.

3. Strengths of the recommendations by the current Constitution Review Commission on Decentralised Governance The recommendations of the current Constitution Review Commission show clarity in their resolve to ensure that local governance is given prominence in the new constitution. Henceforth, the Commission recommends that the Constitution should make provision for a devolved system of local government that will outline the goal, objectives, structures, functions and financing of the local government system. The commission outlined a number of guiding principles for the system of local government (CRC 2005 report, 503). These are stipulated as follows: •

the purpose of decentralisation shall be to devolve power and responsibility to lower echelons, and promote local democracy and good governance, with the ultimate objective of improving the quality of life of the people through improved delivery of public goods and services;

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decentralisation should be to local government structures which are representative of and accountable to all sectors of the local population, including marginalised and disadvantaged groups;

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decentralisation should be to levels of local government structures which enable effective community participation in local governance;

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decentralisation should involve the transfer to local government institutions of those powers, functions and matching resources necessary to enable them to: a) provide services for the local population efficiently and effectively; b) provide a conducive environment for local economic development; and c) develop and manage local resources in a sustainable manner; and •

the local government system shall provide for affirmative action to ensure adequate representation of marginalised groups such as youths, women, the disabled and the aged;

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Financial resources should be available to local authorities in a manner which is reliable, adequate, predictable, transparent, accountable, sustainable and equitable; and

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Local Authorities shall be accountable to their electorates and to Central Government regarding the execution of their mandates.

The merit of laying down these principles in the constitution is that the subsidiary acts can optimize and come up with the best legislation to translate the constitutional provisions in favour of decentralised governance. Although the commission did not clarify the overarching mandates of the different tiers of local government, it nevertheless provides an opportunity to make the local government efficient and effective. For example, while the commission espouses the above principles, they do not recommend establishment of offices in the wards to facilitate local participation and development. Some of the progressive recommendations identified in the draft report include the council’s liberty to dissolve itself instead of being dissolved by the Local government Minister. This in our view is in line with the decentralisation of power to the local

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government. The commission also notes with dismay the current political nature of the office of the district commissioner. This contradicts with the tenets of local participation of the people in determining their own development. We note however with gladness that the current Constitution Review Commission rightly recommended for the abolishment of the office of the District Commissioner so that powers, responsibilities and functions of the civil servants are not confused with powers vested in elected officials. Another strength in the Mung’omba Constitution interim report is the recommendation that mayors and council chairpersons should be elected by universal adult suffrage and the office should have executive powers. This will enable quick action on service delivery, as it will not wait for authority from elsewhere to take decisions concerning any local authority. Overall, the framework for decentralised governance has been pointed out in a more visible manner than in any of the previous constitutions. That is why there is need to point out a few notable weaknesses so that we can come up with a document that recognises the views and wishes of the people at the local level.

4. Weaknesses in the recommendations of the current Mung’omba draft Constitution on Decentralised Governance and Proposals for strengthening them. To compliment the strengths of the recommendations presented by the Constitution Review process, this paper contends that there is still room for the constitutional provisions to further strengthen the ideal and practise of the local democratic system through decentralised governance.

This is because benefits from decentralisation can only be

maximised if all structural impediments and contradictions in law and regulations are eliminated. Enshrining the decentralisation process in the constitution will contribute towards social and economic development and improved services delivery. This will ensure equity in the distribution of state resources and reduce conflict between the different tiers of government. it is for this reason that this paper contends that decentralisation in the constitution should be clearly stated to be as much of a political imperative as it is an administrative arrangement. Therefore, this paper proposes the following core aspects of decentralised governance to be strengthened and clearly clarified in the constitution.

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4.1 Stipulate the Levels of government under decentralised government While the CRC report emphasises the district as the basic unit of decentralized government structure it does not clearly stipulate the distinct levels of government. While it also notes that the objective of decentralisation will be “To deliver power to lower echelons of

government”. However, the section does not stipulate the type of decentralisation to be followed and it does not provide clarity on the basic set of institutions (echelons) that will make the local governance that will prevail in all regions. The constitution should clearly provide guidelines whether the government will have a two or four tier level of government. It should stipulate clearly whether the main levels will be central, provincial, district and ward for true and effective decentralized governance. For greater local democracy, provisions for sub-district units of development and participation should be enshrined in the constitution and means through which they will be established determined. In our view, lessons can be drawn from other countries that have implemented decentralisation reforms. A case in point is Ghana. As for the case of Ghana, its Constitution has extensive provisions on the system of local government. These include the principle of devolution of functions, powers and responsibilities from Central Government to local government units and decentralisation of decision-making to the people at all levels.

4.2 Stipulate the vertical separation of powers and basic functions of the different levels of local government clearly in the constitution. While the CRC report states that the district council will have legislative and executive powers to be exercised in accordance with the constitution (CRC 2005, 492) it does not stipulate the specific powers at each level of government. It does not explicitly affirm the powers of local authority to manage its own affairs including taking charge of core functions such as budgeting and planning. The legitimacy and boundaries of powers exercised at different levels need to be defined in line with the goal of strengthening local government and promotion of local democracy. For example, the role of local representatives in endorsing Provincial ministers nominated by the Republican President and from among the elected officials in the region can be

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adopted. However, this must be clearly stipulated in the constitution as the practise is in Ghana. The Provincial administration should discharge its duties in support to local structures and its functions as stipulated by an act of parliament. There should be guaranteed autonomy of these structures from partisan political influences emanating from the central government.

4.3 Central government and Intra-government cooperation Proposals in the draft Mung’omba Constitution Review report, under the ‘central government and Intra-government cooperation’ section, suggest that the Central government will largely still have all powers for policy formulation (CRC 2005 report, 507). This goes against the spirit and letter of promoting local governance and increasing local citizen’s influence on priorities chosen. This provision is open to abuse by power hungry officials at central government level. This can in turn undermine the legislative and executive functions of the local authority. It would be useful if major aspects/sectors of policy making that were to be undertaken at central, provincial and local government were clearly distinguished. Aspects of local and provincial policy that need central government’s guidance and standardization can also be outlined in the constitution. The report does not recommend how the constitution should guide the nation on which echelons’ decisions override the other when a contradiction or conflict occurs between the local, district, provincial and central governments that ensures local democracy or citizen’s control in the spirit of decentralised governance. The constitution should stipulate the powers that supersede the other in an event of conflict or contradiction of priorities with a view of promoting and enhancing decision making capacity at the local level, thus ensuring local democracy and citizen’s control in the spirit of decentralised governance. Another comparison where the country has devolved power from Central Government to local authorities is South Africa. South Africa is a typical example that has Municipalities vested with legislative authority and the right to govern on their own initiative, with little or no intervention from Central Government. The South African constitution treats issues of cooperative government guided by the two principles below:

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“The national government and provincial governments, by legislative and other measures, must; (1)

Support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.

(2)

Draft national or provincial legislation that affects the status, institutions, powers or functions of Local government must be published for public comment before it is introduced in Parliament or a provincial legislature, in a manner that allows organized local government, municipalities and other interested persons an opportunity to make representations with regard to the draft legislation”(SA constitution, pg 47)

Thus, it is important that the new Zambian constitution similarly, distinguishes between the support and supervisory functions of project levels that ensures autonomy of specific levels of government. Guidelines should include conditions that would justify intervention/ interference by provincial and central administration in the management of local affairs.

4.4 Financing Local Government The right to and responsibility of local authorities to independently raise adequate local revenues is not clearly expressed under the principles of local government section of the Interim report of the Constitution Review Commission. The powers and not just entitlements of local government or district/municipal and city councils to raise funds locally should be stated. The act of parliament should distinguish between levies and taxes to be executed by local and central government. In comparison, the Constitution of Ghana makes provision for the collection of local taxes and the retention of a percentage by local authorities. Similarly, the Constitution of South Africa provides for a Financial and Fiscal Commission, in which each province shall be represented, shall recommend equitable fiscal and financial allocations to the provincial and local governments from revenue collected nationally. This is after taking into account the national interest, economic disparities between the provinces as well as the population and

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developmental needs, administrative responsibilities and other legitimate interests of each of the provinces. The equitable division of revenue raised nationally among the national, provincial and local spheres of government is a principle laid down in the Constitution (Derichs and Einfeldt GTZ, 2006).

4.5 Integrated planning The Citizens’ involvement in developing the local development plans needs to be strengthened beyond the objectives of decentralisation and local government. Also the provisions for fixed structures to protect the right of participation, needs to be clearly stipulated in the constitution. This transfers the responsibility for local development to the people. The Local Government Act can further stipulate the criteria of how participation of the citizens can be enhanced at the local level during planning. The requirement of balancing sub-district priorities in the district and between provinces should be enshrined in the constitution.

The role of the local government budget making and execution and its link to local development plans is not mentioned under this section of the Interim Constitution Review Commission report and its important link to the local development plans. The mere mention of the link of the district plans only to the national budget process undermines the role of local governments in managing financial matters at the local level. The Budgeting Process and timetable of planning should be stipulated in an act of parliament.

5. CONCLUSION This paper has attempted to show the high marks and gaps in the recommendations in the draft Mung’omba report on decentralisation and local government in Zambia. It makes a case for enshrining decentralised form of government in Zambia on the basis of experiences from other progressive African countries and on the basis of Zambia itself having demonstrated a track record of better local government service delivery in the 1960s and the 1970. This was despite the country lacking the protection of decentralisation

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ideals in the constitution obtaining at the time. The launch of the decentralisation policy in 2002 and the current review of the republican constitution provides an opportunity for the constitution of Zambia to provide clear guidelines on decentralised government and local government operations. This framework coupled with appropriate regulatory, institutional and fiscal frameworks would be key in ensuring rapid local economic development across the country, deepened accountability of public officials to local citizens and improved public service delivery. For coherence of government action, it is important that the constitution and related institutional arrangements for decentralisation of governance systems reflect the principles and ideals expressed in the decentralisation policy. The need to consider enshrining decentralisation in the new constitution is critical as decentralisation is not just an administrative matter but also a democratic imperative.

Lastly, the lack of political will to implement full scale decentralisation is partly driven by fears of the ruling party losing influence in opposition dominated and controlled local authorities

and losing the benefits accruing to the ruling elite under a centralised

government. Despite these challenges, decentralisation of government need to be promoted as a way furthering citizens democratic rights in public and national interest.

Disclaimer: This document is composed of the professional views of the authors and does not, in any way, represent the views of the organisations and employers they work for.

Southern African Center for the Constructive Resolution of Disputes Corner of Lubwa & Beit Roads, Lubwa 4749/ Beit No.5 P.O Box 37660, Rhodes Park, Lusaka Tel: +260 211 25 00 17 Mail: [email protected]

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References Dillinger, W. and G. Perry (1999). Macroeconomic Management in Decentralized Democracies: “The Quest for Hard Budget Constraints in Latin America. In Development in

Latin America and the Caribbean”: Decentralization and Accountability of the Public Sector. World Bank: Washington, DC. Fritzen, S. (2000). Decentralization and Local Government Performance: A Comparative Approach with Application to Social Policy Reform in Vietnam. Ph.D Dissertation, Princeton University. Hofman, B. and K. Kaiser (2002) the Making of the Big Bang and its Aftermath. Can Decentralization Help Rebuild Indonesia? Atlanta, Georgia, International Studies Program, Andrew Young School of Policy Studies, Georgia State University. Hofman, B and Guerra, S. (1999). “Fiscal Disparities in East Asia: How Large and Do They Matter.” In East Asia Decentralizes. World Bank, Washington, DC. Jutting, J., Corsi, E. And Stockmayer, A. (2005). Decentralisation and Poverty Reduction. Policy Insights.No.5. OECD Development Centre. Mclean, Keith. (1998). “Characterizing Decentralization in 19 Countries.” Rural Development Department, Washington DC: World Bank. Mimeo quoted in the report by the International Bank for Reconstruction and Development (2005, p.12). North, D. (1990). Institutions and Institutional Change. Cambridge University Press. Cambridge Republic of Zambia, “Interim Report of the Constitution Review Commission”, Secretariat Constitution Review Commission, Lusaka, 29 June 2005 Republic of Zambia, National Decentralisation Policy Republic of Zambia, Local government Act of 1996. World Bank (2004). World Development Report 2004. World Bank: Washington, DC.

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E-sources The Constitution of the Republic of Ghana. CHAPTER TWENTYDECENTRALIZATION AND LOCAL GOVERNMENT. Available at Http://www.ghanaweb.com/GhanaHomePage/republic/constitution.php?id=Gconst20.html. Accessed 29/07/08 The constitution of South Africa available at www.info.gov.za/documents/ constitution/1996/96cons7.htm - 35k Accessed 29/07/08

For further information contact: MS Zambia 5011 Los Angeles Boulevard P.O Box 35788 Longacres, Lusaka Tel: +260 211 25 26 05 Mail: [email protected]

Southern African Center for the Constructive Resolution of Disputes Corner of Lubwa & Beit Roads, Lubwa 4749/ Beit No.5 P.O Box 37660, Rhodes Park, Lusaka Tel: +260 211 25 00 17 Mail: [email protected]

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