Local Governance - 2
The Law and your rights
The other day I went to the Midlands Hotel for a drink in what used to be the parking area for hotel residents. It has now been transformed into an eating and drinking place as patrons enjoy their braai, while playing snooker or chatting away over current affairs. I happened to sit next to a group of young residents who combined playing games and quaffing laagers with banter on subjects of all sorts.
“Come to think of it…this council asks me to pay tax for my dogs, while those with cats do not pay. That is silly…as if my dog grazes on municipality pastures!” said one of the guys.
“It’s law my friend. You can’t fight against the law. Does it not surprise you that we still have to pay rates yet the roads are full of potholes, and there is garbage all over. What are our so-called city fathers doing?” retorted the other guy.
“Yaa it’s all about law. Am not sure what my rights are…also not sure whether our councilors are clear how law is applied…” another young man joined the discussion.
Upon reflection, that is after I went home, it struck me that it is imperative to share information about what law is and how it should be consciously recognized by our councilors as they go about their municipal tasks. This led me to seek answers to the question:
What is Law?
You will find any number of descriptions of law, but for the present purposes let us define law for our councillors as: a body of rules or regulations, which facilitate and regulate human society. Law orders society and brings legal certainty, by enforcing a form of sanction (penalty) where legal rules have not been obeyed. A law, e.g. paying fee for dog licence, or stopping when traffic lights go red, must have legitimacy. A law is said to be legitimate when it is accepted by the people who are governed by it.
The Mayor, the councillors, or the Chief Executive Officer of a rural district council must be made aware that law can be severally classified, for example, we talk of private law and public law. Examples of private law include law of property, family law, law of contract, etc. Public law, on the other hand, includes administrative law, public indigenous law, criminal law, and so forth. The two most important types of law the councillor must be familiar with are constitutional and administrative law, as explained presently.
Constitutional law is the body of law, which defines the relationship of different entities within a state, namely, the executive (the state president and his cabinet), the legislature (the parliament), and the judiciary (all the courts in our republic- magistrate, constitutional court, supreme court, etc.). Administrative law, on the other hand, is the body of law that governs the activities of administrative agencies (e.g. your councillor) of government. Government agency action can include rulemaking, or the enforcement of specific regulations such as by-laws in your municipality. Administrative law is a branch of public law.
The Constitution is the supreme law of Zimbabwe, in which case, any law that is passed by your local council and is inconsistent with the constitution, is invalid. The by-laws made by your city council are known as subordinate (inferior) legislation because they are made by bodies (e.g. the city council) whose function is not to make laws, but to carry them out. The primary legislative body is the Parliament, also referred to as the legislature.
Residents, the mayor, and his team of councilors must be familiar with Administrative Law. Administrative law deals with governance and public administration (of which councillors form an important part). City Fathers, also referred to as public administrators, must apply administrative law in the day-to-day running of the city or rural district.
As government agencies/public administrators, councillors must undertake what is known as administrative action (an important idea to be discussed in one of the subsequent articles) in a reasonable and procedurally fair manner. Procedural fairness involves, among other considerations, taking into account the rights of you the citizen. Our Constitution contains the Bill of Rights in Chapter 4 (Declaration of Rights). It is noteworthy that, without exception, every country contains the Bill of Rights in its constitution. In South Africa, this is contained in Chapter 2, and in Botswana that is also contained in Chapter 2. The Bill of Rights should be clearly understood by city residents and the administrators. Chapter 4 of our constitution lists numerous rights such as right to life, right to human dignity, right to personal security, freedom to demonstrate and petition, right to privacy, freedom of assembly and association, labour rights, and many others. It is the responsibility of the City Council to protect the resident by observing these human rights.
For example, it is not a criminal offence for residents to demonstrate and petition the Council to offer better services to rate payers. This is a human right. It is your right to have personal security as you move in the streets of Gweru. A situation where you are mugged in broad daylight, and no one cares about you, would be a clear example of negligence of duty by the city council. It is your right to have access to information about what is happening in your city. There should be an information centre where residents can learn what is going on in the city.
A good example is the situation where a visitor parks a car outside a supermarket only to come back and find the car clamped. The so-called securities demand immediate payment of $45 fine, arguing that the poor person should have looked for them before going into the supermarket. They contend that information is written on bill boards as you enter the city. They can be nasty too, and throw a few abusive words to the unsuspecting visitor, and the public humiliation one goes through can be beyond description. Alternatively, one of them would direct you to their supervisor, who will, in turn ask the victim, “How much do you have?...OK give me $10 so that you don’t have to pay $45”. After that, the clamps would be removed from the visitor’s car.
Obviously this is an example of a good by-law aimed at raising revenue, but invalidated by infringing the individual’s right of access to information. Who, for example, would pay attention to the numerous billboards when driving into the city? The well-intended law is also aggravated by entrusting such a law in the hands of unscrupulous implementers, whose actions are procedurally unfair, corrupt, and lead to tarnishing of the city council’s name –CORRUPTION at lowest level!!
Obviously, as we will discuss in subsequent articles, councillors have great legal responsibilities as public administrators. We have discussed what law is, and shed some light about the types of law, such as private, constitutional, and public law. Essentially, exercise of legal responsibilities ought to take into account the critical matter of human rights. Human rights are not a joke to be simply spoken about when people are having fun, for example in the pub as a way of whiling up time. In the context of local government, they hold primacy of observance by administrators at what we referred to as grassroots of democracy. This article has been motivated by the objective to sensitise both city fathers and residents about the very fundamental considerations towards a prosperous city or rural council. It may not be expecting too much to require that councillors should be exposed to some form
of induction and training about the role they play and how to play it at best level. Being voted into council is only a political step, yet performance of civil duties is totally different, and calls for minimum preparation that is also systematic. This is because carrying out administrative action, the routine responsibility of the state agency, the councilor and other executive employees at town house (juristic persons), is not an arbitrary and sentimental matter.
Until we meet next week when we discuss the administrative law relationship, reflect on our today’s discussion and see how you can apply the ideas towards the qualitative improvement of the City of Gweru so that you leave it better than you found it!!