Central government however maintains that local authorities have no capacity to engage in social protection but instead should expend their efforts on service delivery. The local council may however engage in such programs only in partnership with NGOs or local business community but subject to government approval. The implementation of the partnership social protection programs remains subjective to monitoring by the provincial governorâ€™s office. One such program between the local council and Mercy Corps an international NGO had grown in popularity with the residents in Dangamvura, Sakubva and Chikanga. The program was discontinued due to political interference in the selection of beneficiaries. The councilors report that the governorâ€™s office directed council to suspend the program. The councilorâ€™s further report that there are also instances where the state security apparatus has directed council to revisit certain social protection partnership agreements with NGOs considered not “friendly”. It is against this background that the UCAZ and PPCLG concurred that social protection is not within local council mandate and in the few conceived programs, central governmentâ€™s role still looms large.
There is confusion on division of regulatory authority in local businesses, like, barbers, local restaurants and other retailers. It is not clear who exactly wields regulatory authority because the local council grants permits to operate in designated areas, but the registration aspect of the business is centralized. The local councilâ€™s role is to allocate a renewable operational license but cannot sanction malpractices in business transactions. To buttress this complex position, local councilors, the UCAZ and PPCLG all cited the 2011 national budget in which central government engaged local councils to collect presumptive taxes on its behalf. They would collect the tax from businesses operators like barber shops, hair salons and restaurant and retain only 10% of the revenue collected. However the local council failed to enforce the measure because it has no legal backing. This reflects the local councilâ€™s lack of regulatory authority in relation to business enterprises and shows central governmentâ€™s conveniently deploys councilâ€™s to collect revenue on its behalf.
the Zimbabwe Revenue Authority (ZIMRA), a statutory body responsible for revenue collection on behalf of central government infringe on councilâ€™s business regulation powers. ZIMRA has hundreds more implied de-facto business regulatory powers than the explicit powers exercised by the council. The UCAZ and PPCLG respondents assert that ZIMRA is conspiring with central government to deny UCs business regulatory powers even for the minutest of enterprises. 60% of local respondents together with UCAZ and PPCLG respondents noted that, the council cannot regulate backyard home industries and the informal sectors, a responsibility which has been usurped by the Ministry of Small to Medium Enterprises (MoSMEs), assisted by ZIMRA. Council does not even have a specific by-law to deal with the ever-growing informal sector, except relying on its ability to levy fees for space rentals. Consequently under the guise of national preferences and standards, UCs regulatory authority over local businesses which extends even to the minutest ones has been submerged.
However the restrictions on authority of UCs over regulation in crime prevention, social and environmental protection conforms to the scope of legislative responsibilities because these public goods are partially non-excludable at the national level. On the other hand, local tourism, provision and maintenance of local sport facilities, and retail and agricultural business are purely local goods, and therefore, should be part of the UCs regulatory authority. It was however argued that, local tourism is seen as the preserve of the Ministry of Tourism and the Zimbabwe Tourism Authority (ZTA) and as such local council has not been able to exert its regulatory authority. Whilst councils have generally had control of urban agricultural activities and at times conducted operations to clear unauthorized farming, Ministerial directives have been issued out ordering councils to halt such operations
Amending, Enforcing By-Laws and Sanctioning Non-Compliance
The making or amending of by-laws has also fallen prey to the centralization tendencies and bureaucracy. Currently over 80% of by-laws in the city of Mutare were inherited from the colonial government. Of the changes instituted after independence, 90% were done by the central government through statutory instruments or amendments to the Urban Councilsâ€™ ACT. Respondents were unanimous that the process of making or amending by-laws is not only cumbersome by could equally be frustrated by the Minister whose approval is essential. It is cumbersome in that there are other several pieces of legislation that impinge on UCs and as such any change has to be in compliance. As such central government has exploited these fault lines to cause UCs to adopt its by-laws promulgated though statutory instruments. In practical terms, central government has tended to dominate this landscape with the local council reduced to mere spectators as shown in figure 4.
The argument is further buttressed by the number and frequency of ministerial directives which either downplay the local councils’ by-laws or seek to suspend the legislative actions of the council. For instance in 2011, the Minister refused to sign the Cityâ€™s 2012 budget until council incorporated certain things as he had directed such as making financial and material provisions for former commissioners. Thus it is argued that the overarching supervisory powers of the Minister prevent due exercise of legislative discretion by UCs. The UCAZ and Parliamentary Portfolio Committee on Local Government (PPCLG) indicated that the system has been subject to abuse and does not augur well for local authoritiesâ€™ legislative discretion.
Additionally in exercising legislative discretion, UCs have powers to change by-laws and sanction non-compliance. One such tool is administrative penalty that is applied through a locally promulgated by-law and administered by the UC. The penalties usually entail monetary fines or the revocation of licenses or rights related to, an economic activity or land use. Although sanction authority requires a qualified workforce to monitor non-compliance, endowing UCs with such an enforcement power could prove more practical and cost-effective than prosecution through litigation. In the case-study, however, it was observed that whilst UCs possesses authority to sanction non-compliance on certain issues like traffic parking, there are other legal limitations and populist directives issued by the Minister. Councilors decried the fact that they have not been vested with adequate authority to revoke licenses of licensees adjudged to be contravening set by-laws. However one area the local council has been able to enforce compliance is through its traffic by laws which empowers council traffic officials to clamp vehicles parked in designated areas without parking discs.
UCs legislative discretionary powers are cosmetic. The Minister has directed the local council to “consult” with Provincial Governor on policy matters and seek approval for routine and mundane decisions. For instance the council finds it very difficult to enforce its street or road side vending by-laws. This is as result of the unclear role of the Zimbabwe Republic Police (ZRP) which on numerous occasions engages in street battles with vendors as they assert their mandate to ensure law and order citing provisions of national laws. To circumvent these challenges the local council reached a compromise were the council police works with the ZRP in special joint operations to mete sanctions on those violating council street vending and traffic parking by-laws. In practice, the council has lost the powers to enforce the street and road side vending by-laws alone without enlisting the help of ZRP which according to the PPCLG and UCAZ fully understands the politics of law enforcement. This undeniably exerts pressure on local councils not only to conform but comply with directives which undermine the exercise of legislative discretion either in formulating or enforcing by-laws.
The overriding principle that central government seem to be following is: keep everything of value centralized and transfer centrally defined obligations to lower-level authorities. This is a clear formula for central consolidation. The PPCLG and UCAZ cited capacity arguments as a tool used by the centre to justify retaining control and hem in legislative discretion by overly restrictive management requirements and oversight. The PPCLG and UCAZ further argue that, lack of capacity is not the issue but the technical hurdles deliberately created by the centre simply to provide an excuse not to transfer powers to the local level. Critically, the deconcentrated bureaucracy is stronger relative to the local government and this limits UCsâ€™ discretion. The excuse often proffered is the need to adhere to certain minimum standards set by central government. This explains the dominant role of the MoLG in the local councilâ€™s legislative agenda presented in figure 5 While it may be desirable to prescribe to the minimum standards in pursuance of some functions, some of the standards are too stringent and often paralyze UCs. For example eight (8) years on, more than 80% of households affected by the Operation Clean Up are yet to be relocated despite recommendations by the United Nations special envoy. In this regard many hurdles are erected that prevent the local council from exercising its legislative discretion.