Former minister and member of the National Assembly for Lobengula in Bulawayo, Samuel Sipepa Nkomo, has dragged Local Government minister Ignatius Chombo, Justice minister Emmerson Mnangagwa and the government to the Constitutional Court (ConCourt) for breaching the country’s constitution by failing to implement devolution.
Chombo is cited as the first respondent as he is responsible for the administration of the Provincial Councils and Administration Act. Mnangagwa is the second respondent as he deals with the constitution, Bills and other legal matters on behalf of government, which is the third respondent.
Through his lawyers, Tendai Biti Law, Nkomo argues failure by the respondents to operationalise Chapter 14 of the new constitution, in so far as it deals with local governance, was a violation of his right to equal protection and benefits of the law.
He wants the respondents to bring before parliament bills which would ensure devolution is implemented. The application was filed on Tuesday.
The constitution received overwhelming endorsement in a referendum in March last year.
In his founding affidavit, Nkomo argues that the respondents have failed or neglected to cause the enactment of an Act of Parliament that would give effect to the provisions of Chapter 2 and Chapter 14 of the constitution.
“Indeed as a result, the respondents have failed to operationalise the key constitutional question of devolution in this country. Chapter 14, in so far as it deals with the provincial tier of government, has thus remained moribund or non-operational,” said Nkomo.
Section 2 of the constitution states that the constitution is the supreme law of the land and the obligations imposed by it are “binding on every person, natural or juristic, including the state and all executive, legislative and judicial institutions and agencies of the government at every level, and must be fulfilled by them”.
He argues the delay to operationalise devolution was therefore a breach of the law and says he had approached the ConCourt because it was the watchdog of constitutional compliance.
“The issue of devolution is key and central in the part of the country I come from and in the constituency I represent. I was chosen to represent my constituencywhich expects me to serve in the Bulawayo Metropolitan Council and represent its interests. I want to serve in this important institution so that it can perform and execute its developmental roles as defined by the constitution,” said Nkomo.
During the constitution-making exercise the MDC formation headed by Welshman Ncube was the most vocal in supporting devolution, which became part of their poll campaign in the run up to the July 31 general elections.
According to the constitution, there should be a provincial council for each of the country’s provinces which should consist of the provincial governor, members of both houses of parliament, mayors and chairpersons of all urban and rural local authorities in the province.
The provincial councils are supposed to be responsible for the social and economic development of the province as well as planning and implementing social and economic development activities, preparing annual development plans for the province while also coordinating and implementing governmental programmes.
The provincial councils are also mandated with coordinating the conservation, improvement and management of natural resources, monitoring and evaluating the use of resources in the province and reviewing and evaluating the implementation of development plans and policies within the province.
Chapter 14 of the constitution lists the objectives of devolution as:
To give powers of local governance to the people and enhance their participation in the exercise of the powers of the state and in making decisions affecting them;
To promote democratic, effective, transparent and accountable and coherent government of Zimbabwe as a whole;To preserve and foster the peace, national unity and indivisibility of Zimbabwe;
To recognise the right of communities to manage their own affairs and to further their development;
To ensure the equitable sharing of local and national resources;
To transfer responsibilities and resources from the national government in order to establish a sound financial base for each provincial and metropolitan council and local authority.
Nkomo argues that although devolution was a contentious issue during the constitution-making exercise, particularly because of Zanu PF’s scepticism as it feared it would be interpreted as federalism or secessionism, it was one of the most popular issues during the constitution-making exercise. He also says the constitution was a people-driven process where more than three million people were consulted.
“The bottom line therefore, is that the question of devolution and decentralisation was an issue that was popular amongst people of Zimbabwe.
“It was also an issue that was heavily contested amongst the three political parties, all of whom appreciated its importance. Having been so agreed and incorporated in the new constitution, surely there should be no reason why it is taking the respondents months and months before the same is implemented,” Nkomo argues.
The respondents were given 10 days to file a notice of opposition if they intend to oppose the application, failure of which the application will be set down for hearing at the ConCourt without further notice.