A Critical Analysis of Zimbabwe’s Non-implementation of Constitutional Injunctions on Devolution

• Jurisdiction: South Africa
• Date: 01 December 2022
• Pages: 1-26
• Author: Paul Mudau,Hoolo ‘nyane
• Published date: 01 December 2022
• DOI: 10.25159/2522-6800/9584

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/9584

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), ISSN 2219-6412 (Print)

Volume 37 | Number 2 | 2022 | #9584 | 26 pages

© Unisa Press 2023

A Critical Analysis of Zimbabwe’s Non-

implementation of Constitutional Injunctions on

Devolution

Paul Mudau

https://orcid.org/0000-0002-8696-7495

Senior Lecturer, Faculty of Law,

University of South Africa

mudaufp@unisa.ac.za

Hoolo ‘Nyane

https://orcid.org/0000-0001-5674-8163

Associate Professor, School of Law,

University of Limpopo, South Africa

hoolo.nyane@ul.ac.za

Abstract

Zimbabwe’s 2013 Constitution provides for a multi-level system of government

whereby the government is constituted at national, provincial and local levels.

Despite the new Constitution being relatively comprehensive about the

devolution of powers to the subnational levels of government, the country is still

trapped within the post-independence highly centralised unitary state design.

Although the new Constitution was adopted in 2013, devolution has not yet been

fully implemented in Zimbabwe. This non-implementation of the constitutional

injunctions on devolution, almost a decade after the promulgation of the

Constitution, brings into question the country’s commitment to the devolution

of powers and constitutionalism. This article critiques this state of affairs, and

identifies the politico-legal factors responsible for the country’s non-

implementation of the constitutional injunctions on the devolution of powers to

subnational levels of government. This article’s central thesis is that the full

devolution of powers is one of the significant levers of constitutional

transformation in Zimbabwe.

Keywords: constitution; devolution; constitutionalism; democracy; rule of law;

constitutional supremacy; Zimbabwe

Mudau and ‘Nyane

2

Introduction

Zimbabwe adopted a new Constitution in 2013.

1

In many respects, this Constitution was

intended to break with the past and replace the 1979 Constitution

2

adopted when

Zimbabwe attained its independence in 1980. One of the significant changes ushered by

the 2013 Constitution is in the devolution of powers to subnational governments.

3

Under

the old Lancaster House Constitution, the process of decentralisation was largely

governed by statutes.

4

Conversely, the 2013 Constitution specifically incorporates the

devolution of powers as a constitutional injunction.

5

Consistent with the emerging

pattern in Africa,

6

the Constitution provides for a multi-level system of government

where the government is constituted at the national, provincial and local tiers.

7

The objectives of devolution as contemplated in section 264 of the 2013 Constitution

are to enhance public participation;

8

promote democratic government;

9

foster peace and

national unity;

10

ensure the equitable sharing of local and national resources;

11

and the

transfer of power from the national to the subnational level.

12

Despite the Constitution

being relatively comprehensive about the devolution of powers, the country is still

trapped within the parameters of a centralised unitary state structure.

13

Since the

adoption of the new Constitution in 2013, devolution has not yet been fully implemented

in Zimbabwe.

14

Most notably, the non-implementation of devolution is evidenced by

the absence of provincial and metropolitan councils.

15

The constitutionally prescribed

composition of the councils are envisioned to have democratically elected members to

further promote a democratic, effective, transparent, accountable and coherent

1

Constitution of the Republic of Zimbabwe, Amendment No 20 of 2013 (2013 Constitution).

2

Constitution of the Republic of Zimbabwe, Amendment No 19 of 1979 (Lancaster House

Constitution).

3

Tinashe C Chigwata and J de Visser, ‘Local Government in the 2013 Constitution of Zimbabwe:

Defining the Boundaries of Local Autonomy, (2018) 10 HJRL 179.

4

These included the Urban Councils Act [Chapter 29:15] (UCA); the Rural District Councils Act

[Chapter 29:13] (RDCA); the Regional Town and Country Planning Act [Chapter 29:12]; and the

Provincial Councils and Administration Act [Chapter 29:11].

5

Tinashe C Chigwata ‘Decentralisation and Constitutionalism in Zimbabwe: Can the Leviathan be

Tamed? in Charles M Fombad and Nico Steytler (eds), Decentralization and Constitutionalism in

Africa (OUP 2019) 302.

6

Charles M Fombad, ‘Constitutional Entrenchment of Decentralisation in Africa: An Overview of

Trends and Tendencies’ (2018) 62(2) JAL 175.

7

See the whole of Chapter 14 of the 2013 Constitution.

8

2013 Constitution s 264(2)(a).

9

ibid s 264(2)(b).

10

ibid 264(2)(d).

11

ibid s 264(2)(e).

12

ibid 264(2)(f).

13

Tinashe C Chigwata, Provincial and Local Government reform in Zimbabwe: An Analysis of the

Law, Policy and Practice (Juta 2018) 100.

14

Jephias Mapuva, ‘Local Governance, Democratisation and Constitutionalism in Zimbabwe (2014) 5

Intl J of Politics and Good Governance 20.

15

2013 Constitution ss 268 and 269.