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By-laws are rules and regulations that govern activities and operations within local authorities. It stands to reason then that these should be easily accessible to all affected persons. Alas, that is not the case in most major cities and towns as these crucial documents are shrouded in secrecy and bureaucracy, leaving residents and businesses susceptible to flouting them unknowingly.
The management of urban areas is administered through the enforcement of by-laws enacted by the respective urban council or local board. These by-laws cover a wide array of issues, such as council operations, property maintenance, construction, traffic, public utilities, and amenities. Part XVII of the Urban Councils Act Chapter 29:15 empowers councils to make these by-laws under the final approval of the Local Government minister.
When designing by-laws, councils should consider all the intended and unintended effects of the proposed by-laws on the effective management of the area and its residents. To this end, the UCA mandates that all proposed by-laws be open for inspection to all residents for a period of 30 days in which they can raise comments or objections to any part of the proposals. Council must review objections and address them, either by amending the draft by-laws or by rejecting them on appropriate grounds. Rejected input must be forwarded to the minister, along with the approved draft for final authorisation and enactment. Enacted by-laws are published in the Government Gazette as statutory instruments, and become effective on that date or a later date as specified within.
Why are by-laws important?
By-laws are localised laws that apply specifically to council areas, such as the City of Harare, Chegutu Municipality, Chirundu Town, and others. They give limits and direction to what one can and cannot do within the bounds of the specified area, even within one’s own property. As they have direct bearing on our daily lives, by-laws must also be relevant and kept up to date with latest developments. This relevance is somewhat overshadowed by the fact that the vast majority of active local authority by-laws were made prior to independence or before the year 2000.
Invocation of convenience
Recently, the cities of Harare and Bulawayo announced that they were invoking bicycle licencing regulations, covered under Vehicle Licencing By-Laws of the 1960s (as amended).
Harare posted on its social media pages: “Over the years, the fee had been neglected and cyclists had assumed it was scrapped off our books.” The capital city will use the funds to maintain cycle lanes and attendant services. On the other hand, Bulawayo is simply collecting revenue due to the council.
We often see this invocation of convenience when city management decides to “clean up the vending menace” that has plagued most urban areas. The recent running battles between vendors and municipal police in Harare serve as living testimony of poor enforcement procedures. Where were the enforcement agents for over five years as vendors filled the streets, taking over sidewalks and street corners? The by-laws governing street vending operations have not changed. In fact, they are the same ones that were used to propagate the mass clean-up exercise.
Our urban authorities have a loose relationship with their management mandate and this often leads to disorganisation of town planning and acrimony between residents and authorities.
Constitutionality of existing by-laws
In the same manner as Acts of Parliament and subsidiary legislation are undergoing a process of constitutional alignment, the same equally applies to the local authority by-laws.
For over a decade, Harare City Council has been under fire from residents for their continued application of these “outdated” by-laws that, in some cases, are in violation of Zimbabwe’s 2013 Constitution and other superseding national laws.
One of the most contentious by-laws in force relates to water; what happens when a resident is behind on their bill payments. The Water Regulations 1913 (as amended) stipulate that council has the power to cut off water to premises for failure to pay bills. This position was challenged in court by local residents’ organisations and ruled to be inconsistent with the Constitution.
The same applies to building and land use by-laws that have led to numerous property demolitions that have fallen foul of administrative justice. There is little recourse available to the affected residents who have no resources to challenge the actions through the legal system.
As it stands, there has been next to no review process undertaken by most urban authorities to align their existing statutes with the Constitution nor the prevailing or desired operating environment.
The City of Harare recently took to social media to list a number of outstanding by-laws, amendments and repeals that await the Local Government minister’s approval dating back as far back as 2012. While the list is minor in its overall effect on the city’s operations, it signifies the bottleneck in the system where, regardless of the local authority’s intentions, the minister has the final say.
These delays by the various Local Government ministers may be political or administrative, but either way, there is need to streamline the system and any queries or objections need to be dealt with efficiently and effectively for the betterment of our urban areas.
The ability of local authorities to make laws specific to their areas is a representative example of devolution, a concept given greater prominence in the Constitution. While there is need for oversight and review of constitutionality, the provisions of ministerial approval of by-laws, in my view, go against this principle.
The minister should ultimately focus on the national vision of local government and provide the necessary governmental resources and policies to achieve this. In execution of this mandate, the provision of guiding principles on the management of specific areas as opposed to explicit direction should be considered. The Parliamentary Legal Committee undertakes legislative review on the constitutionality of all legal instruments issued under various authorities.
Access and review
Going back to my opening remarks, local authorities, especially the cities of Harare and Bulawayo, should consider codifying their by-laws into a single comprehensive document as each has in excess of 500 active pieces of legislation in their by-laws. The third schedule of the UCA already provides the general skeleton of the requisite contents that will ultimately be the complete set of fully amended by-laws.
The codification process must include a comprehensive review of each by-law and its provisions. Numerous by-laws, in their current form, have outlived their usefulness or relevance. In some cases, they need to be overhauled to take into account the environmental changes from 1964 to 2019. Others are simply unconstitutional.
A single bound volume gives all affected persons reasonable access to all relevant by-laws without issues of selected application. It then becomes less of a burden for local authorities to avail copies of these by-laws for sale to all residents at their various offices. The authorities gain from the ease of reference and so do residents and potential investors.
Further distributed access is achievable by uploading all by-laws on local authority websites. The City of Bulawayo website contains 26 by-laws, while the City of Harare only shows ten. These are cities with more than 50 active by-laws each (excluding amendments). The by-laws available for download cannot even be trusted to be complete and containing the latest amendments.
Ignorance of the law is no excuse
Sadly, regardless of a local authority’s inability, negligence, or disregard for a particular by-law, the ignorance of the resident is not an excuse at law. Our urban councils are well-known for picking out obscure historical legislation and using it with impunity to make up for their past negligence. Often, this is to the detriment of the resident and business operator.
To world class status
It is my fervent hope that our local authorities and central government come together in common vision and mission to revamp themselves and our urban areas to reach that excellence we so desperately want.
Source : NewsDay