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Thursday, 18 March 2010

The Local Government (Amend) Bill, 2010

An important amendment bill to the Local Government Act has been tabled. It seeks to : (a) establish the Local Government Service Commission ("the Commission") and provide for its functions and powers; (b) vest the power to appoint, transfer, second, promote discipline or discharge the staff of councils in the Commission; and, (c) increase the tenure of office of the mayor, deputy mayor, chairperson and vice-chairperson of a council from one year to two and a half years.

The fundamental role of the Commission are specified under Section 91:  "The functions of the Commission are to exercise responsibility in respect of all matters relating to the staff of the councils established under this Act; and do all such things as are necessary or incidental to the regulation of service with councils". Under Sections 93 - 96, the Commission  has a range of significant powers which includes hiring and firing principal officers of a council as the Commission considers necessary. The move towards establishing the Commission is therefore intended, in theory, to make the local government system more independent and progressive. It is particularly suppose to usher in a new era of de-politicisation.

Some aspects of the legislation are positive, especially related to funding matters. A key concern in the past has been that the Commission would be broke. Section 90 (5) directly addresses this by making it clear : "the expenses and costs of the Commission shall be paid out of funds appropriated by Parliament for the performance of  the Commission's functions under this Act". Section 97 adds more weight for the day-to-day tasks : "The Minister responsible for local government shall provide the necessary staff to the Commission to enable the Commission perform its functions under this Act".  However,  the draft Bill as it currently stands still has three significant deficiencies :

Weak parliamentary scrutiny. Section 90 (3) vests the appointment power of the five commissioners  entirely in the President's hands : "The members of the Commission shall be appointed by the President and shall serve on full-time basis". Unfortunately, there's no additional provision anywhere for Parliamentary scrutiny of these appointments. This is a major weakness for what is likely to be a politically hot commission, especially given the range of powers under its disposal.

Weak provisions on political influence. The unchecked role of the President cited above is further compounded by two additional clauses. Section 90 (4)(i) states that no person shall be eligible for appointment as a member of the Commission if "that person holds any office in a political party". This is too limited. We have seen recent provisions in the National Constitutional Conference relating to other important positions specify that one must have at-least a one/two year gap in politics before and after the appointment to reduce the incentive for political capture. I would be more comfortable with a similar additional clause. Similar problems arise with Section 92(3)(g) which states that the  office of a member shall be vacated "if the member is removed by the President for inability to discharge the functions of the member's office". Given the members are appointed at the President's pleasure this is expected, but the drafting does not specify what the "inability to discharge" is. This clearly leaves plenty of room for the President to hire and fire as he/she pleases, further exerting political influence.

Ambiguity of appointments.  Section 92(4) provides for Ministerial appointments of Commissioners in the event of a vacancy. What is strange here is that now it is for the Minister to act. Why is it that it is okay for the Minister to appoint someone to fill a vacancy, but the president must fill the original commissioners at the beginning of the term?  This temporary delegation of responsibility is ambiguous and makes it difficult for people to know who to hold responsible for the operation of the Commission.

Some might question whether we need to worry about these issues. My view is that we must, and it is patriotic to do so because the test for any new legislation is to imagine the worst leader in charge. The current President may not use this draft bill  to foster poor governance, but we can never be sure that all leaders to follow would not do the same. We must not draft with "hope" but with "worst case" contingencies in mind.

A Million Words Project Review
New Parliamentary Bills (Not Passed) - Not Read:

The Immigration and Deportation Bill, 2010
The Dairy Produce Marketing and Levy (Repeal) Bill, 2010
The Dairy Produce Board (Establishment) (Repeal) Bill, 2010
The Dairy Industry Development Bill 2010"
The Registration of Business Names (Amendment) Bill, 2010
The Plea Negotiations and Agreement Bill, 2010
The Forfeiture of Proceeds of Crime Bill, 2010
The Engineering Institution of Zambia Bill,2010

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