The ManicaPost
Blessing Chafesuka
From the Town Clerk’s Desk
In Zimbabwe, the primary role of making laws is vested in the Parliament.
There are instances, however, when Parliament, for one reason or the other, delegates these law-making powers to the public authorities such as local authorities.
Laws made by these authorities whilst exercising law making powers delegated to them by Parliament is called delegated or subsidiary legislation.
The delegation of legislation by Parliament is in terms of Section 134 of the Constitution.
The provision empowers Parliament to delegate legislation and sets the conditions under which Parliament may do so and the criterion to be met by the delegated legislation for it to be enforceable.
In the case of urban local authorities, the mandate to make subsidiary legislation is derived from Section 227 of the Urban Councils Act [Chapter 29:15] (otherwise referred to as the Act).
Subsidiary legislation made by local authorities is called by-laws.
Part XVII of the Act provides for by-laws and regulations.
The third schedule provides matters to which a local authority may make by-laws in terms of Part XVII.
There are 116 matters to which a local authority may make by-laws. As such, the powers for a local authority to make by-laws are restricted to matters in the third schedule only.
Having set out the basis for making by-laws by local authorities, this brief shall attempt to simplify the by-laws making process and concludes with recommendations on what the author deems necessary for the by-law making process or their enforcement to be comprehensive or for enforcement of the same.
Just like any other law, a by-law seeks to address a certain mischief.
Any ratepayer through councillors can suggest or promote enactment of by-laws of their interest.
The proposal is given to council management for processing all areas in need of regulation.
The drafting processes is spearheaded by council legal section.
After by-laws are made by management they are referred to Council for adoption.
It should be noted that the Act is silent on the consultation of residents and stakeholders in the by-law making process at this stage but it is however an important process which should not be overlooked.
Once a resolution for such is obtained either to amend, make or repeal by-laws, Council shall cause a notice to be published in two issues of a newspaper.
The notice should describe the purpose of the proposed by-laws and the area to which it applies.
Most importantly, it informs that a copy of the proposed by-laws be open to inspection at the office of the Council during office hours for a period of thirty days from the date of the last publication of that notice in the newspaper.
The objections to the proposed by-laws may be lodged with the Town Clerk in writing before a specified date, being not less than thirty days after the date of the last publication of the notice in the newspaper.
Furthermore, the council must ensure that a copy of the proposed by-law is open to inspection during office hours for a period of thirty days from the date of the last publication of the notice.
If, after the thirty days’ notice, there are no objections lodged, council shall submit the proposed by-laws to the Minister of Local Government and Public Works (otherwise referred to as the Minister) for approval.
If any objections have been lodged, the council shall reconsider the proposed by-laws, together with the objections thereto.
If council resolves to alter the by-laws from its advertised form, it shall advertise the by-laws in accordance with the provisions of the Act.
If it resolves to pass the proposed by-laws in its advertised form, it shall submit that by-law to the Minister for his approval.
If any objection has been lodged, council may at the same time of submitting the by-laws to the Minister request the Minister to take account of any objection when exercising his powers to direct that the council shall adopt model by-laws in terms of the Act.
Any proposed by-laws passed by council, together with a copy of any objections that have been lodged and the comments or recommendations of the council on the objections, are then submitted to the Minister.
The Minister has the powers to approve or reject the by-laws.
The Minister may direct that the council shall adopt model by-laws or may, after the council has been consulted, modify or amend the submitted by-laws.
Modified or amended by-laws are not required to be advertised or to be lying open for inspection again.
Approved by-laws are then gazetted. By-laws become a statutory instrument and begin to have legal effect upon gazetting.
General observations
1. The by-law making process is a cumbersome legal process best done by a legal practitioner.
However, most local authorities, which are not city councils, do not have qualified legal professionals within their ranks.
This affects the by-law making process and as a result, most of the by-laws made are poorly drafted and have inadequate substance.
2. As opposed to the law making process which involves the consultation of stakeholders, the provisions of the Urban Councils Act [Chapter 29:15] are silent on the consultation of residents and stakeholders in the by-law making process.
An attempt for that is done through flighting an advert for objections.
There is need to amend the act so that there is a consultation stage which is separate from advertisement for objections.
The obvious advantages being that it helps in sharing ideas on the mischief sought to be addressed, it helps to decide on the necessity of the by-laws in certain subjects and it reduces the objections to be filed if the residents are made aware of the substance of the by-laws.
3. The area around governance by local authorities is an important subject, hence the delegation of powers to make by-laws.
However, enforcement of the same is greatly affected considering that Municipal Police Officers do not have arresting powers and the fines charged are minimal.
Further, if one becomes a repeated offender, they are referred to the police.
The police in turn refer the matter to the criminal courts, which at most times are overwhelmed with other criminal matters such that the offences may be trivialised.
Therefore, there is need to establish Municipal Courts and to ensure that the Municipal Police have arresting powers.
