Is devolution still an option?

Devolution has had an enduring legacy in Zimbabwe and has courted a lot of controversy, attracting militant behaviour on one hand, and legal court challenges on the other hand.

The provincialisation of the country along ethnic/tribal lines by the British colonial administration had set the stage for devolution.

The perception created through provincialisation was that each ethnic/tribal group had been allocated its own geographical space and as such, was responsible for the developments therein. The claim for de facto devolution/ sovereignty assumed different dimensions and manifested itself either through militant behaviour, such as was witnessed in the Anglo-Ndebele War of 1893, or through legal contestations, such as the one staged by the Mthwakhazi political outfit in the Constitutional Court challenges of 2014.

The thread of devolution had lingered in the minds of indigenous people since the Anglo-Ndebele in which the British colonial administration had refused to recognise the Ndebele State that had existed prior to the arrival of the British. In the legal court challenge, the Mthwakhazi political outfit, had approached the ConCourt to compel the State to take appropriate measures to implement devolution, claiming that the State had failed to take reasonable measures (within a reasonable time frame since the enactment of the new Constitution in 2013) to institute the process of devolution in different provinces.

The most conspicuous question is why has the claim for devolution been so prevalent in the western region of Matabeleland. It has been argued that in terms of development, the region has not done very well and the State have been exhorted to take proactive measures to economically develop the region. This is the premise on which the Mthwakhazi party has based their court challenge to compel the State to speed up the implementation of devolution in the country.

The transformation of local governance from a creature of statute to a constitutional provision would see devolution contributing to the economic development of the region as well as the enhancement of democratic governance. As a result the form of local governance is informed by whether the power to make decisions is centralised, decentralised, delegated or devolved. In a devolved state political and administrative power would be shared between a national government and lower level spheres of the state, for example, provinces and local authorities.

Smarting from decades of delegated local governance and associated challenges, Zimbabwe seems to be taking its time to activate the new devolutionary local governance provisions in the new constitution. This seemingly quagmire has been evidenced by the delay from the legislature to realign, reconcile and harmonise the myriad of local governance legislation from the previous legislative regime to the new constitutional dispensation. This failure has tended to create two centres of power: one emanating from legislative provisions and the other from constitutional provisions.

With the advent of the new constitution in 2013, the concept of devolution has once again resurfaced and this time around it has courted a lot of controversy. The slow pace at which the implementation of devolution has taken place has been attributed to lack of political will to implement the constitutional provision on devolution and this has culminated in court challenges by people of the western region of Matabeleland. There are basically two case laws both challenging the State to observe the content and provision of the Constitution (2013) on devolution. First was the court challenge by Paul Siwela of the Mthwakazi, a quasi-political outfit claiming to fight for a secessionist state and subsequent resurrection of the extinct Ndebele State. The case law Paul Siwela vs Minister Justice, Legal and Parliamentary Affairs sought to compel the State to expeditiously attend to the constitutional provision on devolution.

Secondly came the Constitutional Court (ConCourt) challenge by a former Cabinet Minister, one Sipepa Nkomo of the Movement for Democratic Change (MDC) political outfit, who claims that the implementation of the constitutional provision on devolution is well overdue and should be activated forthwith (see The Legal Monitor April 2015). In the case, Sipepa Nkomo, bemoans the delay and attendant lack of political will to implement the provisions of the new constitution on devolution. By approaching the ConCourt to compel the Government of Zimbabwe to align existing legislation and eventually, this was meant to pile pressure on Government to put in place mechanisms for the implementation of devolution in different parts of the country. In his legal arguments, Sipepa Nkomo argues that provinces must be given the powers to administer their own affairs as a matter of urgency. However, the fact that the demand for devolution are coming from the western region has not been surprising.

Devolution and the new Constitution

Section 264 of the new Constitution of Zimbabwe provides for devolution. Taking a cue from the South African Constitution, the Zimbabwe Constitution of 2013 is considered as the most democratic in the constitutional history of the country. However, the interpretation of devolution has courted a lot of controversy with the Matabeleland region expressing impatience and anxiety over the delay in implementing devolution in the country.

Sections of Matabeleland through the Mthwakazi have taken the issue of devolution a gear up by demanding secession thereby politicising devolution and being labelled ‘a secessionist political party’ with leaders of the said political party being arraigned before courts of law. This presents contradictions because secessionism is prohibited in the new Constitution. The major thrust of section 264 (1) is devolution of governmental powers and responsibilities to provincial and metropolitan councils and local councils.

However, what is not clear are the conditions under which devolution would take place. This is the weak point which has caused controversy because the constitution does not give a timeframe under which devolution should be implemented. Devolution of governmental powers and responsibilities seems to rest in the hands of central government which can consider a region ‘appropriate’. It is therefore not surprising that Matabeleland may be found to be ‘inappropriate’, given that the Mthwakazi political party has mixed up its political ambitions with devolution.

To the government, such ambitions would be tantamount to secessionism. Additionally, the clause ‘whenever appropriate’ creates anxiety within local governance circles as it entails that central government has the mandate to put in place institutions for devolution at a time appropriate to it. This raises fears as to what would happen if central government deems the situation inappropriate for devolution in a particular region. On the other hand, delays in implementing devolution may culminate in confusion and mayhem, and in some cases, overlap and duplication of tasks, since legislative and constitutional provisions would be operating simultaneously. Given that scenario, it is evident that central government may not voluntarily devolve the powers on a silver platter. It is the author’s conviction that there may rise situations when central government may deem it inappropriate to devolve power and responsibilities, thereby making a mockery of participatory democracy as enshrined under this section of the new constitution.

It therefore remains to be seen to what extent central government is committed to implement the devolution and the new constitution in letter and spirit. It also remains to be seen what would happen with devolution if central government ‘finds’ that some local councils are not ‘competent to carry out those responsibilities efficiently and effectively’. While equitable distribution of resources resonates with democratic practice, but the fact that it is enshrined in the new Constitution of Zimbabwe does not mean that it will be an easy task. The precedence set by diamond mining in the Manicaland Province of Zimbabwe which only benefited a few people is indicative of the fact that equitable distribution of resources is likely to present challenges.

Conclusion

Claims and allegations of secessionism and devolution tend to create sensationalisation and a possible cause for panic, especially taking cognisance of the fact that different regions in the Zimbabwean society have different interpretations of devolution. Politicisation of devolution has led to more divisions, contrary to the dictates of the new constitution which call for unity in the country. It therefore remains to be seen whether a more amicable solution to devolution will be found. It is therefore this author’s conviction that devolution should be supported by a carefully designed set of policies to achieve meaningful devolution devoid of tribal accusations and counter-accusations. – Dr Jephias Mapuva is a Senior Lecturer in Development Studies at Bindura University (Zimbabwe) and can be contacted at mapuva@gmail.com.

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