In her ruling following a challenge by the Combined Harare
Residents Association (CHRA), Justice Priscilla Munangati Manongwa said the
section under scrutiny was beyond the powers of some provisions of the
Constitution, therefore, it was illegal.
“It is therefore ordered as follows: Section 314 of the
Urban Councils Act [Chapter 29:15] is ultra vires the provisions of s264(2),
265(1) and (2), 274 and 276(1) of the Constitution of Zimbabwe and is hereby
declared invalid. The respondent to pay costs. The court is cognisant of
further progression of the matter vis confirmation of the order in terms of
s175 of the Constitution as read with s31 of the Constitutional Court Rules,”
ruled Justice Manongwa
CHRA and four other applicants approached the High Court challenging
the constitutionality of the provisions of Section 314 Urban Councils Act which
they deem not to be in conformity with the 2013 Constitution.
Under the Section 314 Urban Council Act, the minister may
reverse, suspend, rescind resolutions, decisions, etc of councils (1) 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. (2) Any direction of the Minister in terms of subsection
(1) to a council shall be in writing. (3) The council shall, with all due
expedition, comply with any direction given to it in terms of subsection (1).”
Using the Section, Moyo has been rescinding resolutions of
local authorities across the country.
The applicants argued that Section 314 gives the Minister
unnecessary powers to make decisions even on non- policy issues and that the
section allows Moyo to interfere with the running of council business when he
is not an elected councillor.
CHRA’s lawyer Tendai Biti argued that the central
government cannot, and should not interfere with running of councils in the
light of section 274 of the Constitution which allows urban and local
authorities to represent and manage the affairs of the people in their areas.
The applicants cited Chapter 14 of the Constitution which
pertains to Provincial and Local Government; where it provides as follows: “Whereas it is desirable to ensure: (b) the
democratic participation in government by all citizens and communities of
Zimbabwe; and (c) the equitable allocation of national resources and the
participation of local communities in the determination of development
priorities within their areas; there must be devolution of power and
responsibilities to lower tiers of government in Zimbabwe.”
Biti submitted that
the lower tiers of government are thus clothed with the powers and
responsibilities to run their affairs in terms of section 274 and section 265
of the Constitution which speak to urban local authorities and provincial and
metropolitan councils and local authorities respectively.
He submitted on behalf of the applicants that the
democratic participation by citizens in government and by local communities in
the running of the affairs of the areas they reside in is thwarted when the
respondent invokes the powers in section 314 of the Act.
He further argued that the provisions of section 264 of the
Constitution clearly seek to empower people at local level and enhance their
participation in making decisions affecting them. Newsday
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