Mphatso Kachule Presented at the National Consultative Conference on Local Government PRESENTATION OUTLINE 1. Objectives of the review & Methodology of study 2. Governing instruments on Local Government 3. Amendments made to the Local Government Act in 2010, the effects thereof and recommendations. 4. Gender inclusivity in Local Government 5. Conclusion OBJECTIVES OF THE REVIEW To establish the extent to which the amendments made to the Local Government Act in 2010 affected the spirit of decentralization espoused in the Constitution, the Local Government Act and National Decentralization Policy. To establish the potential effects of the amendments on the operations of Councils. to explore measures that can be employed to enhance women participation in Councils. To provide recommendations that are deemed necessary in light of the review of the amendments Methodology of the study Analysis of legal and policy instruments on Local Government Studies on Local Government and constitutionalism in Malawi The Hansard Key informant interviews with officials of MLGRD, Ministry of Justice, Gender and Social welfare, LGSC, Civil society organisations, officials from councils, MPs, and experts on Local Government. Findings of the Baseline survey on Cross-Party Local Governance Initiative conducted on behalf of CMD GOVERNING INSTRUMENTS ON LOCAL GOVERNMENT (a) The Constitution of the Republic of Malawi, Chapter XIV- section Establishes Local Government Authorities Provides for the composition, powers and functions of the Local Government Authorities Provides for funding of Local Government Authorities Gave mandate to Parliament to provide for the powers and functions of Local Government Authorities GOVERNING INSTRUMENTS ON LOCAL GOVERNMENT (b)The National Decentralization Policy (1998) Sets up the policy goals and aspirations of decentralization in Malawi Formed the basis for the Local Government Act of Vital in interpreting and applying the provisions of the Local Government Act GOVERNING INSTRUMENTS ON LOCAL GOVERNMENT (c ) The Local Government Act Provides an elaborate legal framework of Local Government in Malawi An Act that amend and consolidate the law relating to local government and to provide for matters connected therewith or Incidental thereto GOVERNING INSTRUMENTS ON LOCAL GOVERNMENT (d) Local Government Elections Act (e ) The Electoral Commission Act (f) Local Government Service Act AMENDMENTS MADE TO THE LOCAL GOVERNMENT ACT IN provisions of the Act were amended The name of a Local Government area was changed from Assembly to Council; Section 5(1)(b) of the Act was amended to include Members of Parliament as voting members of the council; Section 5(1) (c) of the Act was amended to remove Sub Traditional Authorities as members of the Council. Section 6(1) (a) of the Act was amended to remove the function of policy making from the responsibilities of the Councils; AMENDMENTS MADE IN 2010 Section 7(1) of the Act was amended to exclude Members of Parliament and other ex officio members from appointment as Chairman or Vice Chairman of the Council; Section 7(4) of the Act was amended to reduce the term of office of the Chairman and Vice Chairman from five years to one year renewable once but in the case of City Council and Municipal Council the term of office was reduced from five years two and half years renewable once; Section 11(2) of the Act was amended to provide that a Chief Executive Officer and a District Commissioner shall be appointed by the Minister; AMENDMENTS Section 26 of the Act was amended to provide that the determination of Salaries of Council employees shall be approved by the Minister; The first schedule to the Act was amended in order to merge Town Councils with their respective District Councils to reduce expenditure on administration of Councils; NB-Since the amendments, we have not had councillors in place. AMENDMENTS IN CONTEXT Aimed at improving the efficiency and effectiveness of Local Authorities That the amendments emerged from a review which included consultations with various stakeholders in Malawi and study visits to a number of councils in other African countries In depth review of the operations of the Councils between NB. Enactment of laws usually results from contestations and bargains over power among the dominant classes, gender and other interests group of the day CHANGING THE NAME OF LOCAL GOVERNMENT AREA FROM ASSEMBLY TO COUNCIL I In the Local Government Act of 1998, the Local Government Areas were called Assemblies to reflect the policy position enshrined in the National Decentralization Policy. Changed in 2010 to Councils. To ensure that the name correspond to the one that existed before the Local Government Act of 1998 when the country had councils and not assemblies; term Assembly attaches a tinge of sovereignty to Local Assemblies and this led to a lack of complementarity between the central government and local authorities since the local authorities perceived themselves to be sovereign. that apart from Malawi, it was only Ghana that used the term assemblies. EFFECT OF THE AMENDMENT The Constitution did not designate a particular name for local government authorities. The Constitution only provided for the powers, functions and composition of the local government authorities. The mere change of the term Assembly to Council in itself without taking away the powers and functions of the local government authorities and without undermining or interfering with their composition as enshrined in the Constitution does not have legal or constitutional ramifications. This amendment cannot be faulted from the legal or practical point view since it does not add or detract anything from the powers and functions of councils. INCLUSION OF MEMBERS OF PARLIAMENT AS VOTING MEMBERS OF THE COUNCIL Prior to 2010 Councillors were the only members who had voting rights in Council meetings. Reflected the idea that the Councillors are specifically elected to represent the views and interests of the grassroots in decision making on matters affecting local government areas. The National Decentralization policy also restricted voting rights to councillors. REASONS FOR THE AMENDMENT Persistent conflicts between MPs and Councillors at meetings of assemblies because MPs had no voting rights thereby paralyzing the effectiveness of the assemblies; MPs did not take assembly meetings seriously since by having no voting rights the Local Government Act did not recognize them as full members of the assembly; Since MPs, just like councillors, are elected and are accountable to the same grass root communities they should also have voting rights like Councillors; That by having voting rights MPs would fully participate in the development of the constituencies through council meetings; That voting rights for MPs would give them an aura of respectability which was lacking prior to the amendment MPS VOTING MPs are of the view that they are in a better position to understand issues affecting their constituents and to channel them through to the Central Government for assistance in cases where the Councils have no capacity to assist. That most MPs are more experienced and enlightened than councillors as such they will positively contribute to the decisions made at council meetings through their votes. A political compromise to ensure that Government eventually conduct Local Government Elections which had been postponed for a number of years EFFECT OF THE AMENDMENT MPS are more likely to capture and dominate the proceedings in Council meetings and thereby render the views of democratically elected local government officers irrelevant- cf-Numerical strength of Councillors; MPs will now decide on local governance issues at the local level thereby leading to centralization of political power. Councils will be extension of Parliament. Undermining devolution of political & administrative power. Compromises the oversight role of Parliament on Councils,for example on finances. Potential Breeding ground for political power contestations to the detriment of local development. Blurs the distinction of the roles of MPS and Councillors contrary to the Constitutional requirements. Undermines the composition of Councils as provided by the constitution RECOMMENDANTION Electorates and the general public be sensitized on the different roles of MPs and Councillors Initiatives must be put in place to attract well informed and articulate councillors The provision be amended to make MPs non-voting members. Amendment will ensure consistency with the amendment that excluded MPs from being elected chairman/vice chairman of Council Caution: Amendment of the provision likely to meet stiff resistance from MPs. REMOVAL OF POLICY MAKING FUNCTION FROM COUNCILS Prior to 2010, Councils had powers to make policy on local governance and development for the local government areas. In line with constitutional requirements as well the dictates of the National Decentralization Policy Policies support effective decision making and delegation because they provide guidelines on what people can and cannot do, what decisions they can make and what activities are appropriate. A clear policy framework means there will be fewer misunderstandings or debates about what to do in particular situations and there will be transparency and consistency in the way you operate as an organization and make decisions. REASONS FOR REMOVING POLICY MAKING POWERS FROM COUNCILS To ensure that there is complementarity between local and central government so that that local councils act within the stated national policies and problems of the government. The absence of councillors from 2005 meant councils could not make policies. The power was theoretical. EFFECT OF THE AMENDMENT the wholesome taking away of power to make policy from councils is inconsistent with the express provisions of the constitution (See s.146(3), 147(3) Undermines the devolution of political and administrative powers. Councils will merely be implementing agents of central government policy. RECOMMENDATION Councils be given powers to make policy decisions because- (a) Local needs and problems are specific to local government areas. Central Govt policy might not offer the best solutions. In that regard local policy making by councillors becomes indispensable. (b) Policy making by councillors is also important since it plays a crucial role in the enactment of by-laws. By-laws by their very nature are aimed at implementing and enforcing policy decisions that are made by local councils. (c) Policy making is at the cornerstone of the Local Government Act. There can be no accountable and participatory decision making when the elected local representatives do not have a say in making policies that directly affect their people. POLICY MAKING REINSTATED Policy making powers of Councils are not without limits. The National decentralization policy and the Local Government Act of 1998 had clear provisions on ensuring that local government policies are not contrary to national policies Ministers power in section 21 of the Local Government Act are consistent with National Decentralization policy since they aim at ensuring that there is complementarity between policies of central government with those of local governments. The failure by the central government to exercise this oversight function over Councils cannot be solved by taking away policy making powers of councils but rather by simply exercising the oversight powers as provided by law. REDUCTION OF TENURE OF OFFICE OF THE CHAIRMAN OR VICE CHAIRMAN OF THE COUNCIL Prior to 2010 the tenure of the said offices was five years. In 2010 reduced the tenure to one year with a provision for re-election for a further term of one year for Chairman or Vice Chairman of District Councils. For City and Municipal Councils the tenure was reduced from five years to two and half years but the Chairman or Vice Chairman are also eligible for election for one additional term REASONS FOR THE AMENDMENT That the Chairpersons of the Assemblies assumed executive powers and took over the actual administration of the Assemblies. A political compromise to ensure that there is a rotation of the Chairmanship amongst councillors from various political parties to avoid monopoly in the control of Councils Ensuring that the Chairpersons are not complacent in providing leadership No explanation for differentiation of the terms of offices for District and City/Munucipal councils. EFFECT OF THE AMENDMENT One year is too short a period of time for the Chairperson or his Vice to properly provide leadership of the Council in the formulation, execution and implementation of plans and policies of the Council. The reduction will not provide a platform for Councillors to ensure continuity of projects and to galvanize the much needed experience in managing the Council. undermines the whole spirit of decentralization of political and administrative authority as it seeks to destabilize the leadership of Councils by ensuring that Chairman and Vice Chairmen have little time as possible to provide the much needed leadership of the Council. Practical implementation challenges in view of the Electoral Commission (Amendment) Act of 2010 which has reduced the number of wards per District. The case of Likoma. RECOMMENDATION The tenure of office for the Chairman and Vice Chairman in District Councils be increased to two and half years with eligibility for re -election for another term. To ensure uniformity with City/Municipal Councils and for the sake of political compromise REMOVAL OF SUB TRADITIONAL AUTHORITIES AS MEMBERS OF THE COUNCIL Prior to 2010, Traditional Authorities (TAs) and Sub Traditional Authorities (Sub TAs) were members of the Council. This was also consistent with the National Decentralization policy of 1998 With the amendment to the Local Government Act in 2010, STAs are no longer members of the Council REASONS FOR THE REMOVAL OF SUB T/AS to ensure that councils are manageable in terms of numbers. The idea was to retain Senior Chiefs, Paramount Chiefs and Chiefs. The Constitution only requires that the composition of councils must include prescribed number of persons serving as Chiefs in the area of jurisdiction of such authorities and affords equal representation in respect of each ward within its jurisdiction. The number and the category of chiefs was left to Parliament to decide. EFFECT OF THE AMENDMENT The word Traditional Authority on its face is vague for one to know that it refers to Senior Chief, Paramount Chief and Chief. Paramount Chiefs, Senior Chiefs and Chiefs will have large areas over which they will have to represent without the assistance of Sub TAs during council meetings. Limits grass roots participation in councils since Paramount Chiefs, Senior Chiefs are far removed from them. RECOMMENDATION There is a strong voice for retaining Sub TAs for effective grass-roots participation. Need for extensive and thorough consultations However, Sub T/As and other lower ranking chiefs still have the forum to participate in the affairs of the Council through various committees of the Council. S. 14(2) and 14(3) of the L G Act provides that the Council may establish other committees at local government area level or other committees at ward, area or village level as it may determine. the compositions of these Committees do not necessarily require a composition of the type of Chiefs envisaged in section 5 of the Local Government Act, RECOMMENDATION There is need to amend section 5(1)(c) of the Local Government Act to replace the term Traditional Authorities with the words Paramount Chief, Senior Chief and Chief to correspond with the ranks of Chiefs as provided for in the Chiefs Act and for the sake of clarity REMOVAL OF COUNCILS POWERS TO APPOINT CHIEF EXECUTIVE OFFICERS AND DISTRICT COMMISSIONERS OF COUNCILS. When the Local Government Act was enacted in 1998, the power to appoint Head of the Council was vested in the Council. In 2001 the Local Government Act was amended to remove from Assemblies the power to appoint Chief Executive Officers, District Commissioners and Directors and vested it in the Local Government Service Commission. In 2010, section 11 of the Local Government Act was amended to give powers to the Minister to appoint Chief Executive Officers and District Commissioners of Councils, but the powers to appoint Directors remain with the Local Government Service Commission. Councils have no powers in terms of both appointment and removal of staff from the grade of Director to Chief Executive Officer or District Commissioner of the Councils IMPORTANT NOTE Local Government Service Act which is an Act that, inter alia provide for the unification of the local government service of all local authorities into a Local Government Service, to regulate the appointment and terms and conditions of service of persons joining the Service. Section 15(1) provides that the Local Government Service Commission has power to appoint persons to the service. whereas the powers of appointment under the Local Government Act have been fragmented and vested in different entities according to grades of the officers being appointed, the Local Government Service Act has put no limit on the grades or post of officers which the commission can appoint into the local Government service. IMPORTANT NOTE The powers of appointment vested in the Local Government Service Commission have not been made subject to the powers of councils, or the Minister in appointing officers into Councils. Arguably the Local Government Service Commission can even appoint Chief Executives and District Commissioners of Councils and persons in all grades of councils. REASONS FOR THE AMENDMENTS To ensure checks and balances. When the power to appoint and discipline employees of the council is left with the Council, the exercise of such powers became partisan. To ensure that the provision is line with our own regulations which stipulate that any public servant be in the civil service or outside at the level of above P4 will be appointed through a letter from the Chief Secretary. REASONS FOR AMENDMENT Since most of the Councils have not achieved financial autonomy, salaries of Chief Executive officers and District Commissioners are still paid by the central government. As such central government should have a say in the appointment of these administrative heads of Councils. In the absence of councillors, there was no one to appoint Chief Executive Officers and District Commissioner of Councils. EFFECT OF THE AMENDMENT By vesting in the Minister the powers to appoint vital employees of the council, the amendment has reinforced centralization of administrative powers in the central government Chief Executive Officers and District Commissioners will have no reason to be accountable to a body that is not responsible for their appointment and Removal there are no checks and balances for the exercise of the powers of the Minister in making the appointments. we have regressed back to the pre-1998 position when legal framework was not compatible with devolution of administration of political authority to councils RECOMMENDATION To limit politicization and nepotism, the powers to appoint these officers should be vested in Councils on recommendation from the Local Government Service Commission. Need to harmonise the powers and functions of the Local Government Service Commission with those of the Councils regarding appointment of employees of Councils. In this regard there is need to engage the Ministry of Local Government and the Local Government Service Commission. MINISTERIAL APPROVAL OF SALARIES AND ALLOWANCES FOR COUNCIL EMPLOYEES The Local Government Act of 1998 gave the Assemblies the power to determine the salaries and allowances payable to its employees. In line with the key objective of decentralization which is aimed at devolving political and administrative authority to councils. In 2010 the power of councils to determine the salaries and allowances payable to its employees was limited by making the exercise of such powers subject to approval by the Minister. REASONS FOR THE AMENDMENT Aimed at ensuring that there is standardisation of salaries and allowances payable to employees in all councils. Standardisation of salaries and allowances in councils is aimed at ensuring fairness in the treatment of Council employees in so far as the payment of salaries and allowances is concerned. To address the issue of transfers of employees from one council to another. In practice, standardisation has not been fully achieved. Controlling expenditure by Councils EFFECT OF THE AMENDEMENT To the extent that a Minister should have a say in purely administrative matter of approving salaries and allowances of council employees, this amendment is an assault on the powers of councils to exercise their administrative powers over its employees. Leads to centralization of administrative control over council employees. However, the amendment is justifiable in view of Councils lack of financial autonomy RECOMMENDATION When Councils achieve financial autonomy, there will be need to rethink the position and allow Councils to determine salaries and allowances of Council employees unfettered. To ensure harmonisation of salaries and limit centralization of administrative control over Councils, it is recommended that Councils power to determine salaries and allowances should be subject to approval by the Local Government Service Commission rather than the Minister THE OVERALL EFFECTS OF THE AMENDMENTS Central government will have more control over the affairs of Councils both on matters of policy, decisions and implementation of those policies and decisions at the local level. The amendments have led to re-centralization of political and administrative powers in the central government contrary to the spirit of decentralization as enshrined in the Constitution, the Local Government Act as a whole and the National Decentralization Policy; MPs have now by implication become local government officers, with all the powers bestowed on the councillors. MPs will now be deciding on matters affecting both the central government and local government. The potential effect is that agendas which are championed at the National Assembly will be replicated at council level. OVERALL EFFECTS OF THE AMENDMENTS With the blurred distinction in the roles and functions of MPs and councillors, one can foresee a potential increase in political power contest between councillors and MPs in council affairs as each would seek to galvanize political clout to impress the grassroots The amendments have by implication changed the form of decentralization in Malawi from that of decentralization by devolution as envisaged in the Constitution to that of decentralization by deconcentration contrary to the spirit of the Constitution and the National Decentralization policy. GENDER REPRESENTATION UNDER THE LOCAL GOVERNMENT ACT The Act is gender neutral and presupposes that both men and women are capable of being equally elected as councillors, MPs, or appointed as members of councils to represent special interest groups in terms of section 5 of the Local Government Act; The reality on the ground, however, is that women representation in elected political offices since 1994 has not been impressive despite the majority of voters being women themselves. This means that women participation and involvement at the local level has been very minimal. GENDER IN LOCAL GOVERNMENT Minimal women participation in elected political office has been attributed to number of social, political and economic reasons. Out of 1,967 candidates who contested for Local Government Elections in November 2000, only 187 were women. 132 out of 859 elected councillors were women. In 2014, out of 2398 candidates 417 are women it is arguable that pertinent issues that directly affected women might not have been brought to the attention of councils. Some Councils had no women councillors STRATEGIES TO INCREASE WOMEN PARTICIPATION AND REPRESENTATION Advocacy, lobbying and Community mobilization and Awareness Capacity Building for women political spirants/women councillors Ensuring that where there are no women councillors of MPs, there has to be a deliberate effort that among the five non-voting elected to cater for special interests groups there must be a woman. Engendering laws related to elections? THE END THANK YOU FOR YOUR ATTENTION