DEVOLUTION OF POWER: Democracy or Juristocracy?

1. Introduction 

On 11 January 2023, the High Court of Zimbabwe struck down section 314 of the Urban Councils Act. Justice Munangati-Manongwa ruled that the Minister of Local Government’s power to reverse local authority decisions is constitutionally invalid. Even though the court order has no force or effect unless confirmed by the Constitutional Court, it will spark spirited discussions regarding state structure and the proper allocation of powers between the centre and the periphery. According to the ruling, the Constitution grants residents the power to manager their own affairs. Thus, popular power cannot be subjected to a ministerial veto. It is not clear whether this laudable theory of direct democracy is supported by the constitutional text.  

2. Devolution 

Devolution is a discretionary grant of power by a sovereign entity to regional or sub-regional units. It is exercised in unitary states where centrality of power is constitutionally guaranteed. A devolved power is one that is transferred from the centre whilst a reserved power is maintained thereat. In federal unions, regional autonomy is not ordinarily subject to the government of the day. It is constitutionally guaranteed, whilst a devolved power can be revoked by ordinary law. 

Consider the governments of the UK and the US. The US is a federal union of 50 states. No Act of Congress can diminish state autonomy. This is consistent with the motto on the great seal e pluribus unum (from the many: one). On the other hand, the UK is governed as a unitary state out of Westminster. It was only through devolution legislation that various levels of autonomy were granted to Wales, Scotland and Northern Ireland. This is in keeping with the latin maxim ex uno plures (from the one: many). The Federation of Rhodesia and Nyasaland was our brief experiment with federalism, after which the state remained unitary. 

Concordantly, the current Constitution does not demand devolution of power, but only provides authority for its implementation. This is self-evident in the wording of section 264(1) of the Constitution:  

Whenever appropriate, governmental powers and responsibilities must be devolved to provincial and metropolitan councils and local authorities which are competent to carry out those responsibilities efficiently and effectively.

Assessment of competency and the decision to devolve are both left in the hands of the elected branches. In other words, it is a political question decided through electoralism. Constitutionalism is not the exclusive preserve of judicial processes. When the Constitution delegates decision making to elected branches, those entities have the primary authority for constitutional enforcement. This is the case with impeachment of the president, parliamentary recall as well as constitutional review of bills by the Parliamentary Legal Committee. In the same vein, a government can opt to legislate for devolution, whilst a different government could opt for its revocation. Neither the act of devolving power, nor that of reserving it, would constitute a constitutional violation. Devolution is, by definition, subject to the government of the day. 

Thus, it is not readily apparent whether a litigant can sue for invalidation of a law because it is contrary to reasons provided for a discretionary power yet to be exercised. Neither is it clear that section 314 of the Urban Councils Act is a devolved power subject to chapter 14. The High Court presumed that devolution has occurred, or is required to occur, without discretionary leeway to the government. Maintenance of reserve powers was treated as ipso facto evidence of constitutional violation. The positive authority for devolution when appropriate was construed as empowering the court to be a negative legislator against the powers of central government. In so doing, the court treated a unitary state as though it were a federal union in which regional autonomy is constitutionally guaranteed. It also approached the discretionary power to devolve as though it were a justiciable right to devolution. 

This is particularly remarkable given that the decision to devolve is wholly subjective. It is not decided based on an objective assessment of whether a reasonable person would devolve power. As the Constitutional Court stated in Sam Sipepa Nkomo vs Minister of Local Government CCZ 06/16: 

In terms of s 264(1), the division of the provinces into districts is to take place whenever appropriate. The section is not cast in mandatory terms. The State has been given a constitutional mandate to decide when it is appropriate and it is not for the applicant to make that decision.

Thus, it is settled law that the power to devolve is discretionary, rendering the High Court judgement somewhat tenuous. 

3. Preamble to Chapter 14 

The High Court judgement cites the preamble to chapter 14 of the Constitution which is couched as a peremptory norm:

there must be devolution of power and responsibilities to lower tiers of government in Zimbabwe. 

Preambles fall into three categories: ceremonial, interpretive and substantive. These were expounded in Mathew Sogolani vs Minister of Primary and Secondary Education CCZ 20/20. Ceremonial preambles use abstract language without being an independent source of rights or obligations. Interpretive preambles are an aide to interpretation, but remain subservient to the actual text. Substantive preambles are those like the former Constitution’s section 11 (prior to the 14th Amendment) which was a numbered section and was held as forming part of the Declaration of Rights (see Rattigan and Ors v Chief Immigration Officer and Ors 1994 (2) ZLR 54 (S)).

In Sogolani, the preamble to the current Constitution was found to be symbolic. In essence, it means certain words in the constitutional text form no part of the constitutional law. For this reason, section 335 excludes all tables of contents, headings and other references from the constitution proper. The Constitution starts from section 1 and ends with section 20 of the sixth schedule. The preamble is, as the name suggests, before the constitution. It introduces, but forms no part, of the constitution. Like the references excluded by section 335, it is a sign post pointing towards a destination to which it can never reach. The preamble to chapter 14 might be useful in understanding the rationale for devolution, but cannot be an independent source of rights and obligations. It is subservient to the actual constitution. When the preamble states that there must be devolution, that can only be read together with 264(1) which makes that power elective. The Constitution is always read as a whole. Devolution cannot be deemed mandatory on the basis of a preamble when the next section asserts that the power is wholly discretionary. 

4. Autonomy of Local Authorities 

Per the High court, local authorities have autonomy to run their affairs independent of central government. Put differently, the Minister’s powers constitute an undemocratic intrusion on constitutional autonomy. Local authorities are subject only to the Constitution. Yet section 276 (1) subjects local authorities to both the Constitution and Acts of Parliament: 

Subject to this Constitution and any Act of Parliament, a local authority has the right to govern, on its own initiative, the local affairs of the people within the area for which it has been established, and has all the powers necessary for it to do so.

This must not be confused with parliament’s power to make by-laws and levy rates under section 276(2). 276 (1) allows parliamentary supervision of constitutional self-governance via statute. That statute is the Urban Councils Act. Section 314 of the Urban Councils Act is based on this 276(1) power. Since the power of local authorities is not subject only to the Constitution, the minister’s powers are in accordance with the constitutional structure of governance. 

It must be added that, if local authorities had constitutional independence, this would dispense of the need for devolution entirely. Power need not be transferred to bodies which already enjoy constitutional autonomy. The chapter 14 power is precisely because local authorities are subject to the national government since Zimbabwe is a unitary state. This is confirmed by section 270(3) of the Constitution: 

Members of a provincial or metropolitan council are accountable, collectively and individually, to residents of their province and the national government for the exercise of their functions.

The Constitution envisages local governance as accountable to both local residents and central government. Whilst this provision relates to provincial and metropolitan councils, it highlights the constitutional relationship between local authorities and national oversight; central government for the provincial and metropolitan councils and statutory oversight for local authorities. It may be undesirable when ministerial oversight undermines the electoral power of residents through needless interference, but that does not make it unconstitutional. The Constitution does not define devolution as mutually exclusive with national oversight. In fact, governmental supervision animates the verticality of checks and balances between the centre and the periphery. 

5. Will of the People 

The High Court insisted that the current Constitution is distinct from its predecessor because the latter was negotiated to resolve a political impasse. Whilst the current Constitution is indeed free from the former’s colonial entanglements, it is also the result of an impasse between political parties following a disputed presidential election. The term disputed in this case denotes more than protestations or filing of a court petition. It refers to fundamental legitimacy questions raised by regional bodies such as SADC and AU, resulting in the Global Political Agreement (GPA). The current Constitution is a product of that process. The people’s participation actively necessitated, rather than obviated, the need for compromise; an essential condition for the synthesis of diverse views into a single text. If anything, the COPAC process engrained the GPA compromises with constitutional permanence. Whilst some called for devolution, others wanted a strong central government. As local authorities sought greater autonomy, central government insisted on national oversight. Just as with the impasse of 1979, neither side won outright. 

This is what happens when a people find each other. A constitutional centrism emerges, synergizing left and right through fundamental concessions. The people referred to in the Constitution are this collective whole: those who sought autonomy in local authorities and those who sought government oversight. Those who sought conservative approaches and those inclined to be more liberal. The chapter 14 remedy is electoral. It is not judicial. Local authorities and/or residents do not get to decide whether power will be devolved through judicial pronouncements. Rather, voters writ large get to decide through the ballot box. This means political parties can legitimately campaign on the promise of devolving power (or reserving it). Asking the judiciary to pick winning sides ex-post enactment of political compromises poses the risk of vitiating the accord upon which the constitutional draft secured broad endorsement and referendum success. This would also displace democratic discretion with juristocratic judgements, with the effect of supplanting the very same sovereign will and popular legitimacy which the High Court sought to uphold. 

NB. Contrary to a tradition established by the Constitutional Court, the High Court ordered the Minister to pay legal costs for defending his statutory powers in constitutional matter – an issue beyond the scope of this post. 

DELIMITATION: REDISTRICTING OR PARTISAN GERRYMANDERING?

Delimitation refers to redistricting of electoral maps. It accounts for changes in population demographics to achieve equal representation in single member districts. In countries like the United States, it is a hot-button issue because it is mainly done by legislative majorities in service of plurality/first past the post systems. These are winner-take-all elections in which all votes for losing candidates amount to wasted votes. They have no effect on incumbency. This makes redistricting particularly salient as electoral minorities can create voting boundaries which ensure long-term incumbency without mastering the support of popular majorities. This is the practice known as partisan gerrymandering. 

Zimbabwe employs a winner-take-all system for the presidential election. Since the president is elected nation-wide, delimitation is of no consequence to the highest office. The directly-elected seats in the National Assembly and local authorities are vulnerable to gerrymandering. However, the votes cast for losing candidates in these elections are not entirely wasted. Through a system of proportional representation, they are used to compute the quota allocation of senators, women and youth parliamentarians, as well as provincial councillors. In this way, Dr. Thokozani Khupe secured two proportional representation seats in 2018 in spite of her poor return in the direct elections.  Gerrymandering remains a danger to democracy, but the constitution reduces its effect through hybridity of the electoral system. 

A partisan gerrymander is unfair because the electoral maps concerned lack partisan symmetry. Partisan symmetry requires that the vote total in a district must translate to the same number of seats no matter which party secures such total. Thus, if party A secures fewer seats than part B from the same total number of votes, then it is the victim of a partisan gerrymander. Another way of showing a partisan gerrymander is using the efficiency gap which divides the total number of wasted votes by the total number of votes cast. An efficiency gap of over 7% or below -7% was established by University of Chicago Professors as empirical evidence of gerrymandering. 



It is obviously premature to make a claim of gerrymandering from the preliminary delimitation report. That would require the election results. Commentators are slow to make this admission, instead making claims of ‘smart’ or ‘subtle’ gerrymandering. Dr. Phillan Zamchiya’s great piece shows that there has been some redistricting which works in the opposition's favour (ZEC has not bothered to create a significant number of new constituencies in areas where ZANU PF has a chance to win) and some which ZANU PF would commend (In ZANU PF’s perceived areas of electoral dominance there has been little reconfiguration of constituencies). A non-partisan process would produce such variegated results, eliciting both discontent and delight across the political divide. It cannot point to gerrymandering, as that would require the actual election results. 

Thus, ahead of the electoral outcome, there is less focus on the contents of the report, and more scrutiny of whether a constitutional infringement could render the entire process nugatory. The relevant part of the Constitution provides as follows: 

…the Commission may depart from the requirement that constituencies and wards must have equal numbers of voters, but no constituency or ward of [a] local authority may have more than twenty per cent more or fewer registered voters than the other such constituencies or wards.

The Lancaster House Constitution, as amended, provided as follows: 

the..Commission … may depart from the requirements of subsection (4) [equal representation] , but in no case to any greater extent than twenty per centum more or less than the average number of registered voters in House of Assembly constituencies.

The argument is that these two provisions are not the same. Whilst the former Constitution allowed a 20% variation, it is only a 10% variation above or below the average which would meet the current Constitution's limit of 20%. This cannot be correct. The Constitution can only be amended in express terms – never by implication ( 52(1) of former Constitution and 328(2) of current Constitution). If COPAC sought to change the import of this provision, it would have stated in clear and unambiguous terms that 20% is now a reference to total variation, whether above or below, the constituency/ward average. 

Instead, the wording of the former constitution is retained almost in toto. Those questioning ZEC’s approach do not dispute, indeed they confirm, that the former Constitution allowed for variation of 20% above or below the average. This is relevant since the wording of the former and current constitutions is almost identical. It diverges only by omission of the phrase ‘average number’ and replacement of less than with fewer than. The current Constitution is also broader as it includes local authority wards for the same variation. Notwithstanding these incidental differences, the actual percentage for variation is precisely the same. 20 percent more or less than the average in the former Constitution, and 20 percent more or fewer than other constituencies and wards in the current Constitution. This cannot amount to an amendment of the percentage variation, let alone one that is in express terms. It is eminently a case of constitutional continuities. To this extent, the approach by ZEC is unimpeachable.  

Redistricting is not done by partisan legislators in Zimbabwe. It is conducted by an independent constitutional commission led by a judge or someone qualified for judicial appointment. The independence of ZEC and that of its chairperson are important institutional safeguards, the latter of which ensures legal interpretation is internally subject to judicial supervision. These measures insulate ZEC, and the elections it conducts, from partisan manipulation. Whilst the elected branches can refer the delimitation report back to ZEC, its subsequent decision is final. When viewed in light of the system of proportional representation and its effect on wasted votes, these important features should serve to increase public trust in the electoral system broadly and inspire more people to participate at the polls. Yet the perpetual paradox of political commentary lay in consistent condemnation of the same system we hope that people will, somehow, believe in with sufficient confidence as to register to vote en masse.