HARARE – The High Court has delivered a landmark ruling setting aside a law which gave Local Government minister, July Moyo powers to interfere and issue unilateral directives to local authorities.
Justice Priscilla Munangati-Manongwa in a judgement handed down on January 17 2022, set aside section 314 (2) of the Urban Councils Act Cap 29:15. which effectively allowed the minister to have overbearing control on the affairs of local authorities.
This follows an application by the combined Harare Residents Association, Borrowdale Residents and Ratepayers Association, Clever Rambanapasi, Ian Makone and Elvis Ruzani against the meddlesome government official through their lawyer Tendai Biti.
The landmark ruling came at a time Moyo has clashed with opposition dominated councils for allegedly usurping their powers and issuing often ruinous directives.
In opposition to the court action, Moyo had challenged the residents associations’ locus standi as litigants to the matter.
The minister had said the two residents associations were just rate payers hence lacked any legal standing.
However, the judge dismissed his submissions for lack of merit.
“Whether they stay in Mufakose or Greendale is neither here nor there as the test is whether the applicants have real substantial interests in the matter.
“That aside, there are still three other litigants whose legal standing has not been challenged, hence the matter could still be heard.
“In essence, the challenge by the respondent even if it had succeeded, would not have prevented the case from proceeding,” ruled Munangati-Manongwa.
Moyo had also sought the joinder of City of Harare and a company called Georgenix B.V since “the outcome would affect their rights”.
The judge again found no merit in that request.
“It has nothing to do with contracts between the parties mentioned. The application has everything to do with putting to test whether the section cited is not contrary to the provisions of the cited sections of the constitution.
“The issue rises above individuals, entities or contracts. It pertains to whether the section deserves to live or should be decimated for want of conformity.
“The argument presented having no merit the court dismissed the same.”
The applicants had argued that the section mentioned above gives the minister unnecessary powers to make decisions even on non-policy issues.
Biti had argued that Moyo had literally taken over the running of councils yet he is not an elected councillor.
In response, Moyo argued his ministry could not be complacent when local authorities were making bad decisions that had negative impact on the affairs of residents.
In her judgment, Munangati-Manongwa said the minister’s arguments were not relevant, and as such, could not stand.
She said it was incumbent upon the court to exercise its watchdog role and ensure that the exercise of public power conformed to the constitutional dictates and the principle of legality.
The judge said the constitution was born out of people’s will and as such should be respected.
She ruled that a decision by a local authority is a decision of the people in that area.
“Hence for the minister to reverse, suspend and rescind resolutions without consultation whatsoever is tantamount to acting contrary to the provisions of the constitution which provide the residents with powers to manage their own affairs,” she said.
“There can be no empowerment that surpasses the giving of authority to the people to decide, manage and administer their affairs through their democratically elected representatives which are in turn accountable to the local residents.”
She said the minister could not exercise power or perform functions beyond those conferred by the law.
“Without conforming to the principles of legality, the power conferred by s314 cannot be exercised in a constitutional democracy.
“The constitution unequivocally confers local authorities with governing and management powers which should not be clandestinely interfered with.”
She said the whole purpose for devolution is premised on bringing power to the people by way of cascading governance through the tires of government.
“In fact, such participation in governance at different levels fosters peace and unity amongst the people of Zimbabwe as contemplated by s264 of the constitution given that communities are in charge of their affairs and enjoy the democracy brought about by the revolutionarised constitution born out of their participation,” the judge said.
She said such overriding powers that had been given to Moyo, which have no checks and balances, were a danger to democracy.
“Given the foregoing, there is absolutely no justification for the exercise of s314 of the Act in the form it is hence counsel for the respondent was at pains to justify its existence citing s265 of the constitution whose provisions do not speak to the minister’s actions.
“Finally, s314 of the Urban councils Act chapter 29:15 fails the constitutionality test when juxtaposed against sections 264 (2), 265(1) and 276 (1) of the constitution.
“The provisions of that section are ultra vires the constitution hence are declared invalid,” she ruled.
