By Yasin Maoni:
On November 28 2020, the Malawi Local Government Local Government Association (MALGA) posted on its Facebook page that it was, on that day, conducting a consultative meeting at Lilongwe City Council chamber on the review of the Local Government Act. I thereby became aware of the ongoing exercise, which I believe is long overdue. The awareness triggered a desire in me to be part of the process owing to my little knowledge and experience working in the sector. That, obviously, could not be possible as I am outside the system and I am not one of the notable people that may be consulted.
For being an outsider, of course with working experience that has allowed me to understand some of the working problems of the prevailing Local Government legal framework, I decided to contribute to the exercise by writing down a few points that the 1998 Act reviewers may consider and I believe, if taken on board, may contribute towards improving local governance n Malawi. I have outlined the proposal pints in the following paragraphs:
- Amend Section 5(1)(b) to preclude members of Parliament (MPs) from voting in the local Councils. Ordinarily, local councils ought to be an institutional unit for councilors since it is the wards that are represented and the MPs have an alternative own institutional Unit at the National Assembly level.
Aside from the fact that there have been some complaints on MPs undermining the mandate of councilors at the council level, it is also argued by other quarters that neither Section 146 nor 147 of the Constitution of Malawi intended or authorised the inclusion of members of Parliament into the council structure. The ideal, in compliance with the supreme law, is, therefore, to exclude members of Parliament from the council altogether, or, on the least of it, exclude them from voting.
- Prescribe a specific number of serving chiefs to constitute part of the council in terms of Section 146(4) of the Constitution. The Constitution provides for prescription of a specific number, whereas the Act, under section 5(1)(c) just provides generally for traditional authorities from the local government area to be members of the council without any prescription. This is a failure to follow the dictates of the Constitution and must be rectified.
- Decentralise the appointment of CEOs and DCs by removing the power of the Minister to appoint such officers under Section 11(2) of the Local Government Act. Local Authorities are corporations and the authority for governing in these areas of jurisdiction is granted to the councilors through an electoral process. Once the councilors are elected, being accountable to the people, they must be allowed to appoint the CEOs and DCs, —the way boards appoint CEOs of other statutory corporations.
There is usually an excuse that is cited claiming that councils do not have the capacity to deal with appointment of such personnel and the authority must remain with the Minister of the Commission. This should be dismissed because; (i) these shortcomings can be resolved by a deliberate capacity building exercise coupled with guidelines and regulations on how such recruitment and performance management can be had by local councils, and (ii) local authorities do handle sophisticated matters of procurement in big projects through internal procurement committees without hindrance in as much as they are guided by the procurement law and regulations. The same can be achieved with respect to recruitment not only of CEOs and DCs, but also of Directors if a similar approach is used.
- Provide specific and detailed executive functions to the mayors and chairpersons of the councils by amending Section 7(3) of the Local Government Act. This will give mayors and council chairs a clear line of mandate as well as delineated executive power. The current setup only makes the mayors and council chairpersons as personnel for chairing council meetings with an obscure mandate of “providing leadership in the council”. There is no clarity and specificity on the context of leadership, in what aspects and manner or to what extent. This obscurity is exacerbated and confounded by section 11(5)(b) which gives the CEOs and DCs authority to manage “day to day executive and administrative functions of the council”. This raises questions: If the CEOs and DCs exercise executive functions, what nature of powers do mayors and council chairpersons exercise? Further, what constitutes executive functions?
A modern trend in local governance is to move towards the separation between executive and legislative governmental functions. Local authorities are governments in their own right, they legislate, make policies and execute them, Effective governance is achieved when there is some separation between those exercising legislative powers and those exercising executive powers, or, at the least, if there is some checks and balances as well as oversight and accountability between the two functionaries.
Malawi may not be at that level where there can be a clear separation of these functions at local level, but we can start by allocating clear executive function to the Mayors and Council chairpersons such as the responsibility of proposing policies, by-laws and plans, to prepare budgets, to appoint at least 3 councillors who shall assist him/her in that regard and who, in totality, shall constitute an executive committee answerable and accountable to the council and the residents on the implementation of the local policies, by-laws, plans and budgets. The mayors and chairpersons and their committees would then have a clear defined mandate as opposed to the obscurity currently obtaining.
- Increase the tenure of council chairperson by amending Section 7(4) which differentiates between the tenure of council chairpersons in districts and those of Mayors, yet all of them exercise the same functions. A period of one year does not provide enough time for council a chairperson to fulfil set goals and a differentiation with mayors in urban councils is devoid of any justification. It is proposed that their tenure be equated with those of mayors to two and a half years, or both must be extended to five years, with an option of a provision for a vote of no confidence deal with under-performing chairpersons.
- Fully implement the initial policy position of allocating to local authorities at least 5 percent of total national revenue as it was originally stated in the Decentralisation Policy, 1998. While this is clear in the Decentralization policy, the intent was lost in the Local Government Act as well as in practice and resulted in insufficient transfers to local authorities and consequential poorly funded mandates. This must be remedied by incorporating a provision in the Act mandating the intent.
- Introduce a provision in the Act that will specifically authorize the line Minister to make regulations, rules and guidelines for proper and detailed implementation of the Act. The Act does not have a specific provision in that regard, a departure from the norm and possibly an oversight. As a result, the line ministry has been unable to regulate the sector and the guidelines they issue lack the force of law. Introducing such a provision will enable the line ministry to govern on a number of issues such as recruitment and performance management processes and standards, fees standards, standing orders standards, and many legally unregulated areas.
- Streamline the delineation of function between local government and the national government by reviewing section 6 and second schedule of the Act. While the constitutional mandate of each of these levels of government is clearer, section 6 and the second schedule make the list of responsibility for local authorities impractically long and cumbersome, taking almost all of the functions of the national government at the local level. In practice, however, no local authority fulfils more than a third of their mandated functions. This has been the case because the national agents have resisted to give up many of their functions, o the one hand, and also due to lack of requisite funding, resources and general capacity in the councils, on the other hand. It is, therefore, needful that the demarcation of functions between the national government and local government be simplified so that local government is allocated realistic mandates that makes practical executable sense.
- Repeal the Local Government Service Act and introduce a part in the Local Government Act that deal with the Local Government Service Commission in terms of Section 147(4) of the Republic of Malawi Constitution, 1994. The provision envisages an Act of Parliament to set out the composition, powers, functions and procedures of the Local Government Service Commission. Since the 1994 Constitution came in force there has been no such legislation to formulate a commission that aligns with the new local government regime. Instead, the Local Government Service Act enacted in 1983 with the aim of creating and regulating a single local government service nationwide – as opposed to the 1994-1998 framework scheme of decentralized self-employing councils- is the prevailing albeit outdated legislation.
There is, therefore, need to do away with the archaic law and make necessary up to date provisions of the Local Government Service Commission aligning its functions with the new scheme. It has to be stated, however, how strange it is for the framers of the Constitution to think of establishing a commission the structure, powers, function and procedure of which they did not provide. Why did they find a need to establish it at all?
- Reduce the period on expiry of which the local councils may seize, through court, property whereon rates have remained unpaid from three years to 1 year. This entails amending Section 91 of the Act to reduce the backlog of unpaid property rates and to prevent un-abetted accumulation of huge sums of property rates which the property owners struggle to settle. Further, an addition remedy must be included to permit councils to (i) attach through court order any rentals accruing from property on which rates have not been paid for 6 months, and (ii) close any property that rates have remained unpaid for a period of one year. This will allow councils a wider room to enforce payment of rates and increase their revenue collection. Currently, records show that many councils are owed huge sums in rates and enforcement has been very poor.
- Incorporate principles of corporate governance into the Act through an introduction of a provision in that regard. Principles of corporate governance ensure efficient governance, yet they lack the force of law with respect to statutory corporations. While the Companies Act, 2013 has, through regulations, attached the force of law to the principles of corporate governance in relation to companies registered under the Act, the same is not the case with respect to statutory corporations generally.
Despite the existence of sector guidelines for parastatal, local authorities are a specialised and unique form of corporations which may need own guidelines and principles. Thus, in addition to introducing the provisions in the Act or regulations attaching force of law to principles of corporate governance, there is need to set up specialised principles or sector guidelines with respect to local governments. The significance of good corporate governance on the overall governance and service delivery in local authorities cannot be overemphasised.
Some of the proposed points above may have been already raised or discussed in other fora and consultative meetings or may be found to be unacceptable or not practical. I cannot, however, risk not participating in this review exercise as participation is the epitome of a democratic legislation process. May the review process be informed by practical issues, established paradigm and solution-oriented research to improve Malawi local governance.
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