THE CONSTITUTIONAL LAW PERSPECTIVE OF THE MSB SALE

Yasin Maoni

A lot has been said on the sale of Malawi Savings Bank from a political angle, the legal angle and the economic angle. On the legal perspective, however, little has been said on its significance on constitutional law theories and implications. This write up seeks to point out a few of those theoretical implications with minimum nuance.

The first constitutional doctrine implicated in the issue of MSB sale is the doctrine of Separation of Powers. The Constitution, under section 7 and 8, creates separate status and function for the executive and legislature, respectively. This separation of functions is further exposed in sections 66 and 89 which provides for powers and functions of the National Assembly and that of the President, respectively.

The issue of the sale of MSB has manifested a contestation of powers and functions between the executive and the legislative chamber. In the outset, it has been clear to be the position of the executive that it is within its mandate to decide whether to sale MSB or not, without prior sanction of the legislative arm. On the other hand, some Members of Parliament (MPs) and other sympathisers argued that the National Assembly should be part pf the decision making process. The interesting fact is that none of the proponents were able to cite a clear provision of the law to support their position. In essence, there is no clear delineation and delimitation of the powers and function between these two organs of state. It is, loosely speaking, a grey area as to which decisions of the executive require involvement of the National Assembly, aside from those expressly mentioned in the Constitution like the national budget. Beyond the Constitution, however, the like decision for divesture of public enterprises has been covered by statute, i.e., the Public Private Partnership Act. The process outlined in the Act does not involve the National Assembly.

The second constitutional law implication of the MSB sale is that it confirms the the complete migration of Malawi from Parliamentary Supremacy to Supremacy of the Constitution. The new constitutional regime expressed under section 4 of the Constitution places all organs of state at par; all under the Constitution within their mandate. This positioning of parity creates a balanced relationship between the organs, as opposed to one being superior to the other. This is clear from the MSB transaction that the voice of the National Assembly is no longer superior. The official sale of MSB took place in disregard of the resolution of the National Assembly a day or two before to put on hold the said sale. Without putting to question the legality of a sale that contravenes a clear resolution of the National Assembly, what is clear is that the National Assembly, the legislative chamber, has been ignored.

The third implication is a bit specific, although related to the above two. It is specific because it delves on the import of section 66(1) (c) of the Constitution which mandates the National Assembly to "debate and vote motions in relation to any matter..". This section relates to the previous two issues because it is one of the powers and functions of the legislative house under the separation of powers and it also relates to the supremacy of the Constitution or Parliament discussion.

The gist of this write up on this point is to question the reach of section 66(1)(c). This is a constitutional provision which under the supremacy of the Constitution regime must be given all import it deserves. It gives power to the National Assembly, subject to other provisions of the Constitution, to debate on any matter of national importance. By necessary implication, the debate may lead to resolution(s) being made. The Constitution falls short of stating the Significance of a Resolution of the National Assembly vis-a-vis powers and functions of other organs of state. The natural implication of section 4 and 5 of the Constitution is that such resolutions of the National Assembly may be tested for conformity with the Constitution through a court of law. But beyond and before that, is the executive organ of state bound by a resolution of the National Assembly made after motion and debate under section 66(1) (c)? What if the executive is not bound, what is the significance of section 66(1)(c)? If the executive ought to be bound, what are the consequences of the disregard of the said resolutions.

The Constitution itself has not offered any help to resolve these queries. The Constitution seems to hang in the air on the extent of authority of resolutions of the National Assembly. This has been clear in the MSB controversy. It shows a constitutional gap that can be resolved by judicial interpretation, further research or constitutional debate and reform.

In a nutshell, the sale of MSB has not only raised political and economic questions, but also put to the fore constitutional law issues worth further research and interrogation.

THE FEDERALISM QUESTION: A FEW CONSIDERATIONS

By Yasin Maoni

A federal system of government is not a bad idea. It works for many countries. Whether a nation adopts a federal or unitary system of government is merely a matter of choice. It is a choice of the architects of a nation, ordinarily representative of the will of the people, or the people themselves who determine the kind of governance system that is to apply. In most cases there are historical events coupled with other geographical, economic, political and ethnic considerations that influence the formation of a particular governance system.

As the debate on the proposal to adopt a federal system of government rages on, it is clear that it is a time of choice for the people of Malawi; to decide whether to go federal or remain unitary. In this kind of scenario there are many factors to consider. Here are just a few, especially for the proponents of federalism in Malawi.

For starters, federalism is a form of a decentralized system of government whereby certain powers and functions are reserved for regional governments in most cases referred to as state government. Other powers and functions are then shared between the federal government and the local governments. Malawi already embarked on a decentralization program after the 1998 Nation Decentralization Policy which has faced a lot of challenges. One challenge has been the absence of Councillors, an integral part of the system, for a period of nine years. This was due to a decision of political masters who thought having the system fully operational with Councillors was expensive.

The question for the proponents of the federal idea is; if we have failed to successfully undertake a wave of decentralization to local governments under this program, is it prudent that we should be thinking of an additional wave length of a decentralized formation? Is it logical to further decentralize national powers and functions to regional governments when the decentralization to local governments has not be completed and taken stock of?

The foregoing also raises a question of cost. Perhaps the political masters who thought having Councillors was costly had a valid point. The current governance system has two tiers; the national and local government. There is already a high cost for sustaining the national executive, Parliament and Councillors from the consolidated fund. Going federal will add a third tier of government at the regional level with executive, legislative body and supporting staff. This entails a further cost from the consolidated fund already overstretched. It is an economic question for the proponents of federalism to consider.

Related to the issue of cost is the question of competent personnel. One of the challenges of the decentralization program has been the inability of local governments to attract competent personnel with requisite skills. Creating one more tier of government will require specific skilled personnel. Isn’t this going to pose a challenge on the proposed system?

Allied to the issue of cost and skilled personnel is the question of the electoral method. The electoral method recently introduced, namely, the tripartite elections of combining elections of the president, MPs and Councillors caused confusion to the electorate many of whom are illiterate and encountered a number of logistical challenges. Adding another tier of government will require another set of elections for the regional executive and legislature.  Could this be added on top of the tripartite method or it will require an alternative electoral period? If the former is the option, the complication is compounded. In case of the latter is opted, then we are adding on the cost of instituting our government. The sad part is that we mostly rely on donors to assist us to successfully conduct these elections as the electoral bill is substantively high. These additions seem to elude economic sensibility.

There is also an inter-governmental relations question. With only two tiers of government there is a confusion of roles and functions between the central government and the local governments. One may argue that the powers and functions between these two are not clearly delineated. There is also a conflict and overlap between the role of MPs and those of Councillors. The proposition of federalism intends to add on regional executives and legislators to the quagmire. This needs a little more homework than we did with the current setup, otherwise it will result into a chaotic system.

A question of logic also crops in. Apart from identity of a people and historical reasons, population and size of a country informs the decision making whether to divide the country’s governance formation into regional governments for better administration. Though population may be on the high scale, the land mass of 118,484 km², which includes 24,404 km² of water surface, is quite small and does not make logical sense to divide that into a three tier government with addition of regional governments.

It is also prudent that the proponents of the idea realize that federalism is not a panacea to the problems being cited. The main motivation for the proposal is that the northern region should also have a fair share of national development. This entails allocation of financial resources to the northern region to address such developmental need. It is not a given fact that a federal system will deliver that solution. In allocation of national financial resources to regional or local governments one of the usual variables factored into a formula for financial distribution is population density. Given that the northern region is the less populated region in the country, it is also likely to receive less of the national cake, probably less than what is allocated in the current system where government discretion rules.

On the issue of financial resources, it is also the northern region that is likely to face challenges in raising revenue locally as it is less populated and has less economic activity compared with the rest of the country. This makes self-sustenance for the northern region difficult and is more probable that it will end up relying on the grants or transfers from the national government to support its development efforts. The latter scenario does not make any difference with what is obtaining currently. The question then is whether going federal is worth the trouble.

The issues aforementioned should not undermine the benefits that the federal system may bring. Going federal conforms with the principle of subsidiarity which dictates that governmental function should be left to the level of government that can best address the needs of a particular locality. In this case it mean that, in line with the principle, the people of the north are well placed to address their needs and aspirations. The same applies to other regions. Secondly, the creation of another tier of government will result in a division of labour which may lead to efficiency as well as job creation for the created positions in the regional level of government. These pros, however, need to be weighed against the issues raised earlier.

Whilst the agitation for a federal state riles, the onus is wholly on the federalist to convince Malawians how the issues raised will be addressed if the proposal carries the day. The decision to change Malawi to a federal state, which is different with a decision for the northern region to secede, will have to be decided by the whole of Malawi and not the northern region alone. If it is a campaign for federalism, it has to be convincing across the country with clear reform and strategic points. Let the federalists get to work.

An Assessment of the Framework for Appointment of Local Government Staff in Malawi

https://www.academia.edu/5899737/AN_ASSESSMENT_OF_THE_FRAMEWORK_FOR_APPOINTMENT_OF_LOCAL_GOVERNMENT_STAFF_IN_MALAWI

Decentralization and Local Development in Malawi. The Demerits of the Public-Private Partnership Act 2011

https://www.academia.edu/5900000/DECENTRALIZATION_AND_LOCAL_DEVELOPMENT_IN_MALAWI_DEMERITS_OF_THE_PUBLIC-PRIVATE_PARTNERSHIP_ACT_2011

LEGISLATIVE OVERSIGHT. HOW EFFECTIVE IN MALAWI

By Yasin Maoni

The sitting of the National Assembly of February 2013 comes right after and concurrently with a number of issues of concern to Malawians. There have been reported incidents of overspending in many departments of the Malawi government, including the state residencies. The very issue of drug shortage and mis-procurement thereof is among the hot issues.

One would expect a concerted scrutiny of the executive by Parliament in terms of financial probity and protection of the common interests of Malawians. This expected function of the National Assembly on the executive arm of government is within the concept of legislative oversight. The pertinent question is; how effective is the Malawi National Assembly in exercising the oversight function and holding the executive accountable?

Legislative oversight, according to L.B Lemos, connotes the notion of monitoring, supervising and controlling. The Ohio Legislative Commission defines legislative oversight as legislative review and evaluation of activities of the executive branch of government. In essence oversight refers to the watchfulness, supervision, control, monitoring, review and evaluation of the exercise of power of the executive and executive organs by the legislature.

Oversight is important as it ensures that the executive complies with legislative intent, improves efficiency, effectiveness and economical government operations, evaluates performance, prevents executive encroachment on powers, and ensures investigation of alleged instances of poor administration, abuse, waste, dishonesty and fraud. In essence oversight ensures that the executive arm and the administration are effective and efficient in their operations, and in the exercise of their mandate and authority as entrusted or delegated to them.

The Constitution of Malawi does not expressly provide that the National Assembly shall oversee the executive. However, it contains a number of provisions which are to that effect. One of such provision is where the President may be called to Parliament to answer questions, although rarely used, if at all used.

This is one ideal function of the legislature. But does our National Assembly effectively oversee the executive? Is there any meaningful control, supervision, review and proper evaluation of the exercise of executive powers and functions by the National Assembly?

There is obviously a Parliamentary Committee system in place which is a mechanism aimed at assisting the National Assembly attaining that end. Do they really achieve it? The practice is that they summon relevant public officers from the executive and administration when need arises for scrutiny and questioning, whereof reports are made afterwards. But where do these reports end? Do they really have an impact?. What if the report are brought into the house and discussed, does the debate, if at all, translate into necessary action by the executive?  

The converse of oversight is accountability. The one who is overseen is ordinarily made to account. In this regard the executive arm of the government is to be held accountable by the National Assembly. The notion of accountability entails some sort of action, decision or sanction after scrutiny, investigations or reporting. The essence is that those who have mismanaged, abused or misused powers or resources are held accountable. That includes those who have made bad and imprudent decisions which have proven costly to every citizen.

Do we really see such action in the Malawian scenario? Take for instance the issue of drug shortage. Who is going to be accountable? The same question can be asked in a number of issues like huge millions of abused allowances, imprudent decision in dismissing public officers from which government is usually losing millions, and many need-not-mention instances.

It is high time that our parliamentarians show the people of Malawi that they are not in parliament for the sake of remuneration, but to exercise their rightful functions, one of which is to oversee the executive and hold it to account. The executive arm of government should not be untouchable. It ought to be subject to scrutiny, assessment, control and sanction by all people of Malawi through representatives in the National Assembly.

As to the pertinent question whether this function is effectively exercised by the Malawi National Assembly, each and every one of us can judge.  But if it is effective enough, am yet to see the 

RECENTRALISATION? THE LOCAL GOVERNMENT SERVICE COMMISSION AND ITS POWERS TO APPOINT

By Yasin Maoni

After the popular transition from the one party state to a multi-party system, the Malawi Government embarked on a decentralization program. This was necessitated by the need to devolve political and administrative authority to district level.[1] As a result, a decentralisation policy was adopted by the cabinet in 1998. In the same year, a new Local Government Act was enacted.

With the intent of devolving administrative powers to local decision makers, the policy also made the councils possessory of the power to appoint, develop, promote and discipline their own staff.[2] The policy also unequivocally states in a separate section that the councils have the mandate to employ own staff.[3] The intent to devolve administrative powers, including those to appoint staff, also manifests itself in the Local Government Act of 1998. Section 6(1)(g) of the Act provides, similar to what is in the policy, the powers to appoint, develop, promote and discipline own staff as a function of councils. This power of appointment is in exception to the Chief Executives (CEs)/District Commissioners (DCs) who are to be appointed by the Minister[4] and Directors who are to be appointed by the Local Government Service Commission (LGSC).[5]

Many years down the line, the intent of allowing councils to have their own administrative authority, including the power to appoint own staff, seem to be eclipsed. This is evident from the fact that the Ministry of Local Government has put up adverts in the dailies and Weekend Nation intending to employ personnel into various District Councils. These are from grade M4 to M9 and are to be employed through the LGSC.  This begs an obvious question whether that is in order.

It is clear from the policy and the law as selectively explained above that the involvement of the Ministry and LGSC in the employment process of staff other than CEs/DCs or Directors firstly contravenes the National Decentralisation Policy, and secondly contravenes the law. In effect, it is a reversal or undesired resistance to the decentralisation or devolution of administrative functions to local governments. It appears to be on the re-centralisation direction.

It may be argued that the LGSC is rightfully acting on the powers granted to it by section 15(1) of the Local Government Service Act.[6] The LGSC is by that provision granted powers to appoint persons into the Local Government Service. That was the correct position before the 1998 policy and Act. Prior to the new local government regime, all employees in local governments were under one local government service as a consolidated entity, similar to the civil service.[7] The position has since changed on the adoption of the new policy and enactment of the new Local Government Act, 1998. In this new regime, the local authorities are body corporate in their own right and have the powers to appoint staff, except the CEs/DCs and Directors. The powers of the LGSC have been reduced to only the appointment of Directors.

In conclusion, the intended employment by the Ministry through LGSC of staff meant for councils, being staff other than the CEs/DCs or Directors, is in contravention of the National Decentralisation Policy and illegal for contravention of the Local Government Act of 1998.

---

[1] National Decentralisation Policy 1998 1.

[2] Ibid 5 Bullet 6(g).

[3] Ibid 10 Bullet 8.

[4] Section 11(2) of Local Government Act 1998.

[5] Section 11(3) of the Local government Act 1998.

[6] Chapter 22:04 of the Laws of Malawi.

[7] Section 3(1) of the Local Government Service Act.

OVERSIGHT, SEPARATION OF POWERS AND THE LEGAL FRAMEWORK

By Yasin Maoni

2.1       INTRODUCTION

This paper analyses the relationship between oversight and separation of powers and the relationship between oversight and accountability. This is followed by a discussion on the constitutional and legislative framework of oversight and separation of powers at local government level.  An attempt is made to outline the challenges that are being cited by certain interest groups and scholars as resulting from the set up in the local governance system. The paper winds up with a brief statement on the divergent options on how to deal with the problems attributed to conflation of powers at local level.

2.2       THE CONCEPT OF OVERSIGHT AND SEPARATION OF POWERS

2.2.1 Understanding oversight

In the ordinary English meaning oversight relevant to the concept under discussion is derived from the word oversee. To oversee is to watch somebody or something and make sure that a job or activity is done correctly.[1] In the context of this discussion, oversight is considered in the scenario of a relationship between the legislative functionality to oversee the executive and administrative functionality, commonly referred to as legislative oversight.  Legislative oversight connotes the legislative supervision or watchfulness of the authority which is considered delegated to the executive branch and entities.[2] According to Lemos, it connotes the notion of monitoring, supervising and controlling.[3] In another use of phraseology, the Ohio Legislative Commission defines legislative oversight as legislative review and evaluation of activities of the executive branch of government.[4] In essence oversight refers to the watchfulness, supervision, control, monitoring, review and evaluation of the exercise of power of the executive and executive organs by the legislature. In the study herein, it refers to such legislative oversight in municipal governance.

Oversight is important as it ensures that the executive complies with legislative intent, improves efficiency, effectiveness and economy of government operations, evaluates performance, prevents executive encroachment on powers, and ensures investigation of alleged instances of poor administration, abuse, waste, dishonesty and fraud.[5] In essence oversight makes sure that the executive arm and the administration are effective and efficient in their operations, and in the exercise of their mandate and authority entrusted or delegated to them. It ensures that they do that within their proper confines of power and legislative intent.  Oversight ensures that the executive arm of government is accountable for the exercise of their powers and performance of their functions. This works especially within the tenets of the principle of separation of powers and is related to the concept of checks and balances. Thus, oversight keeps the exercise of executive and administrative powers in a check.

2.2.2 Understanding separation of powers.

Separation of powers is a jurisprudential doctrine or principle that requires a division and delimitation of powers and functions of the branches of government classified as executive, legislative and judicial in a sense that each of the three branches of government is responsible for a single function. The doctrine was conceived on the need to protect the liberty of individuals and is an antithesis of tyrannical rule.  It prevents the accumulation of all powers, legislative, executive and judicial, in the same hands, whether of one, a few men or many, and whether hereditary or elected .[6] The doctrine when practiced ensures independence of the branches of government, facilitates an expedient division of labour, creates more seats or avenues of power and develops areas of expertise in the respective branches.[7]

The principle of separation of powers is not only important in that it creates efficiency, but it is also necessary in ensuring that there are proper checks and balances in exercise of power. [8] The principle of separation of powers divides powers of government among different branches of government, whereas the doctrine of checks and balances prevents each of the branches from usurping power of another branch.[9] Separation of powers, therefore, is a principle that serves a number of purposes if put in practice. The major one is to prevent concentrating of all powers, legislative, executive and judicial, in one body or person so as to allow a proper and reciprocal check or control of the powers of government.

2.2.3 Relationship between separation of powers and oversight.

There is an inherent relationship between separation of powers and oversight. This relationship exists in the sense that oversight, as defined above, entails watchfulness, supervision, monitoring, control, review or evaluation by the legislature over the executive and administrative functions of government. This requires an existing division or delimitation of powers classified as executive and legislative. That division is within the prescription of the doctrine of separation of powers. It can, therefore, be rightly said that for legislative oversight to be effectively exercised, there must be some application of the doctrine of separation of powers.

Separation of powers is also related to oversight if observed from the perspective of accountability. Adhering to the principle of separation of powers has the potential of enhancing accountability. According to O’Regan K Justice, separation of powers enhances the vision of democracy which is founded on the values of accountability, responsiveness and openness.[10] Accountability is understood as a social relationship in which an actor feels an obligation to explain and to justify his or her conduct to some significant other.[11] The significant other to whom the account or explanation is given exercises watchfulness and oversees the accounter, thereby creating an oversight relationship. According to Bentham, the more strictly we are watched, the better we behave.[12] This is the inherent rationale behind emphasising oversight which also entails accountability. In the same way, there is a natural relationship between accountability and oversight; the more an institution is overseen, the more accountable it becomes. The application of the doctrine of separation of powers, therefore, ensures an environment that facilitates oversight and accountability, whereas accountability and oversight have a reciprocal relationship that enhances one another.

2.3       CONSTITUTIONAL AND LEGISLATIVE FRAMEWORK

As the study deals with the mechanisms of oversight and separation of powers in metropolitan municipalities, the legal context in which they operate need to be understood and is analysed in this part. The discussion is in the context of the Constitution and legislation.

2.3.1 Oversight in the Constitution and legislation

The provision of oversight in the Constitution can be considered in the perspective of the differences in the spheres of government, particularly in the context of legislative oversight. At national level, the national assembly is elected to represent people and to ensure government by the people by, among other things, scrutinising and overseeing executive action.[13] The usage of the phrase “overseeing executive action” means that the national assembly has the duty and responsibility of providing oversight over the national executive. In another provision, the Constitution has unequivocally provided for legislative oversight of executive authority. It has obliged the national assembly to provide mechanisms that will ensure that all executive organs at national level are accountable to it, and that it maintains oversight of the exercise of national executive authority.[14] This is a clear requirement of oversight by legislature, and reciprocal accountability, by the national executive organs. In furtherance of the national assembly’s duty to oversee the executive organs, and the executive to account, members of the cabinet, which is the apex of executive authority at national level, are required to provide parliament with full and regular reports concerning matters under their control.[15] Legislative oversight over executive organs at national level has , therefore, been clearly provided for in the Constitution.

At provincial level, oversight has been similarly provided for in the Constitution. The provincial legislature is instructed to provide for mechanism ensuring that all executive organs in the province are accountable to it and that it must maintain oversight of the exercise of executive authority in the province.[16] By this instruction, the provincial legislature has been conferred a duty to oversee executive authority and organs and to make sure that such executive organs are accountable to it. Further, in the fashion of oversight and accountability relationship between provincial legislature and executive, members of the executive council are required to provide to the legislature full and regular reports concerning matters under their control.[17] In this case as well, oversight has been clearly provided for by the Constitution.

At local government level the scenario is different. The Constitution does not provide any oversight and accountability relationship due to the reason, as it will be detailed later, that executive and legislative powers are vested in the council as one body.[18] Thus, there is no separation of powers provided in the Constitution at local government level. This accounts for the absence of an express provision for legislative oversight at local level in the Constitution. Interestingly, no legislation has also expressly provided for legislative oversight at local government level. However, legislation, as will be discussed later, has provided mechanisms that may be used to facilitate oversight at local government level despite the absence of express stipulation.

2.3.2 Separation of powers in the Constitution and legislation

In relation to providing for the doctrine of separation of powers, the Constitution has not made an express use of the phrase separation of powers but has made provisions which put into effect principles of the doctrine. The Constitutional principles which were negotiated during the multiparty negotiation process and formed the basis of drafting the 1996 Constitution did, however, have an express provision for the separation of powers between the executive, legislature and judiciary.[19] It is on the basis of the constitutional principle that the current Constitution has provided for the separation of powers, although not expressly mentioning it. The legislative, executive and judicial functions have been vested in different branches or organs, at least at national and provincial level. At national level legislative authority is vested in parliament,[20]executive authority is vested in the president who is supported by the cabinet,[21]and judicial authority is vested in the Judiciary.[22] At provincial level legislative power is vested in the provincial legislature, [23]executive authority vested in the premier who is supported by the executive council,[24] and the same judiciary determines all judicial matters. There is in this case a clear division of powers between the three branches of government at the national and provincial level.

At local government level, however, the Constitution has vested both legislative and executive powers in the council which is a single organ.[25] There is, therefore, no separation of powers provided by the Constitution at local government level. Legislation has also not provided for a separation of powers at local level, but has only provided mechanisms which if properly used, may in practice create a separation of powers at local government level. The mechanisms available include the terms of reference which designate the roles and responsibilities of each political structure or position,[26] and the systems of delegation through which the council may transfer part of its powers to political structures and positions.[27] These mechanisms, together with other numerable mechanisms which will be discussed in detail in chapter 3, may also be used to provide for oversight at local government level. The use of such mechanisms for creation of separation of powers and enhancement of oversight is the main subject of this study and will be discussed in the proceeding chapters. Additionally, legislation has, to a lesser extent, provided some form of separation of functions; especially to the higher offices of the speaker and executive mayors or executive committees. At this stage what is clear is that the Constitution and legislation, while providing for oversight and separation of powers at national and provincial level, have not done so with regard to the local government. There is therefore no clear separation of powers and legislative oversight provided at local government level. This has been confirmed by the Constitutional Court in the case of Democratic Alliance V Masondo.[28]

2.4        PERCEIVED PROBLEMS DUE TO CONFLATION OF EXECUTIVE AND        LEGISLATIVE POWERS AT MUNICIPAL LEVEL

As seen above, the Constitution and legislation do not make an express provision for separation of powers at local government level. The Constitution has done the opposite by providing that both executive and legislative powers are vested in the council. What, then, are the consequences of this conflation of executive and legislative powers at local level? De Visser has stated three challenges emanating from this constitutional set up.[29] First, he observes that the conflation of powers at local government level complicates or brings confusion on the office of the speaker of the council. Although the speaker would properly be considered to be the head of the legislative functionality of the council, the council also makes executive and administrative decisions on which the speaker presides. In practice, he is not really divorced from the municipal executive and municipal decision making. He benefits from the same administrative budget and therefore dependent on the administration. Secondly, De Visser states, it is not clear who is the overall in charge of municipal administration between the speaker and the mayor. Thirdly, it is stated that the conflation creates a challenge as it makes room for municipalities to adopt wrong form of committees. He observes that most of the municipalities have adopted section 80 committees which are merely portfolio committees assisting the executive mayor instead of section 79 committees which could have been providing oversight on the executive and administrative powers and functions.

Apart from the above challenges coming about as a result of the conflation of executive and legislative powers at local government level, De Visser and Akintan have cited the problem of conflict or tension between the office of the speaker and that of the mayor.[30] This tense environment does have a negative impact on overall governance at municipal level, particularly on oversight. The African National Congress (ANC), through its National Executive Sub-committee also noted that the absence of separation of powers at municipal level, among other effects, result to blurred line of accountability of the mayors and mayoral committees to the municipal council.[31] The accountability and oversight relationships at at local government level are not clear and straight forward and create a challenge in governance. The Department of Traditional affairs and Cooperative Governance (CoGTA) in the National State of Local Government Report 2009 indicates that municipal governance is in distress. One of the reasons cited for the distress is the lack of separation of powers between legislative and executive at local government.[32]

From the discussion above and findings presented, it is clear that the absence of separation of powers at local government level has been part of the causation to governance problems obtaining in the sphere. This ranges from inherent conflict or tension between higher municipal office bearers, unclear lines of oversight and accountability, misunderstanding as to who is in charge of municipal administration and the adoption of wrong committees of the council.

2.5       THE DEBATE ON OVERSIGHT, SEPERATION OF POWERS AND          PROPOSALS THEREOF.

Generally, academics and policy makers do agree that the conflation of legislative and executive powers in the same council at local government level creates a challenge which has a negative impact of general governance, in one way or another. There is, however, a dichotomy of options on how to deal with the problems attributed to the conflation of powers at municipal level. One such proposal is to have a a separation of powers at local level by constitutional amendment, whereas the other view proposes to retain the constitutional setup as it is but concentrate on making use of the mechanisms made available by statute to create a system of separation of powers that also enhances oversight relationships. These two divergent options, it is stated, would resolve the governance problems attributed to the conflation of powers at municipal level.

De Visser and Akintan in discussing the tension that exist between the office of the speaker and that of the mayor intimated that the amendment of section 151(2) of the Constitution to provide for a separation of powers would be one option in dealing with the tension between the two offices.[33]  This, according to them, would entail a reworking of related legislation that deals with political structures at local level. They indicate, however, that this option would bring significant repercussions in the local government system. They argue that a prior nuanced study of what could obtain in practice should be done as a viable test measure before using the option.[34] This, nevertheless, has been a view of many other people in policy discussion forums, including that of the ANC. The ANC recommendations, however, from the policy national conference of 2012 has fallen short of recommending for amending section 151(2) of the Constitution. It has merely recommended that there should be a greater separation of executive and legislative arms of municipalities.[35]It is not clear whether this will be through a constitutional amendment or not.

De Visser on the other extreme, while accepting that the conflation of powers creates a challenge, argues that focus should not be on the debate on conflation of powers but on other ways of improving governance and resolving the resulting problems within the current legal framework.[36] The municipalities, he states, can make use of legislative mechanisms which already provides for a degree of separation on the function at local level.[37] These mechanisms can be used to effectuate separation of powers at local government level without constitutional amendment

The discourse above shows that there is a dichotomy of options on how to to deal with the consequent problems of of the conflation of powers at local level. Despite this dichotomy of options, the study here in focuses on understanding how the latter option has been used by by the selected metropolitan municipalities to provide for a separation of powers and enhance oversight.

2.6       CONCLUSION

In the discussion it has been seen that oversight is an important notion for effective governance. It is one of the attributes of good governance as it is correlated with accountability. It has also been noted that the doctrine of separation of powers, when applied in a governance system, creates an environment conducive to oversight and accountability as it delineates powers and functions to different structures or organ of governance. Thus, it may be concluded that there is an inherent relationship between separation of powers, on the one hand, and oversight and accountability on the other hand.

In the South African context, it has been seen that while the Constitution has provided for legislative oversight at national and provincial level, it has not provided for legislative oversight at local government level. This is on the reason that, as opposed to providing for separation of powers at national and provincial level, the Constitution has not provided for separation of powers at local government level. This causes a challenge on governance to the sphere.  Additionally, it has been noted that there are two possible options in dealing with the problems of governance attributed to the conflation of powers. These are either to amend the Constitution and provide for separation of powers, or to retain the current legal set up and work with it. 

BIBLIOGRAPHY

Legislation, regulations and legal instruments

The Constitution of the Republic of South Africa Act No 200 of 1993

The Constitution of the Republic of South Africa Act No 108 of 2006.

The Local Government: Municipal Systems Act No 32 of 2000.

Case Law

Democratic Alliance v Masondo 2003 (2) BCLR 128 (CC)

Re: Certification of the Constitution of the Republic of South Africa, 19996 1996 (10) BCLR 1253 (CC), 1996 (4) SA 744(CC) at par 108=109.

Books, Journal Article and Research Papers

Bovens M Public Accountability in Pollit, Lynn Jr and Ferlie (Eds) The Oxford Handbook of Public Management Oxford 2005.

De Visser J The Political- Administrative Interface in South African Municipalities: Assessing the Quality of Local Democracies in Commonwealth Journal Of Local Governance 2010 epress.lib.uts.edu.au/ojs/index.php/cjlg/article/.../1488/1567Share.(accessed 12/06/2012)

De Visser J and Akintan O Institutional Tension In Between Municipal Chairpersons and Executives-Speaking of Mayor Conflict Community Law Centre 2008. http://www.ldphs.org.za/publications/publications-by-theme/local-government-in-south-africa/governance-in-municipalities/Institutional%20Tensions%20between%20Municipal%20Chairpersons%20and%20Executives%20Speaking%20of%20Mayor%20Conflicts.pdf.(accessed 12/06/2012)

Hornby A.S Oxford Advanced Learners Dictionary of Current English Oxford University Press Oxford 2010.

 Kaiser FM, Oleszick WJ and Talelman TB Congressional Oversight Manual 2010 http://www.fas.org/sgp/crs/misc/RL30240.pdf Accessed 08/09/2012)

Lemos LB Legislative Oversight of the Executive in Branch in Six Democracies in Latin Americas Paper delivered at the Oxford-Princeton Global Leaders Workshop, Princeton-NJ,

 May 2010 http://www.princeton.edu/~pcglobal/conferences/GLF/lemos_glf.pdf (Accessed 16/09/2012)

Lindberg S.I Accountability: The Core Concept and its Sub-types in Africa Power and Politics Working Paper No 1 Overseas Development Institute London 1999 http://www.institutions-africa.org/filestream/20090507-appp-working-paper-no-1-apr-09-accountability-the-core-concept-and-its-subtypes  (accessed 24/08/2012)

Ohio Legislative Service Commission A guide Book for Ohio Legislators  Ohio 2010 http://www.lsc.state.oh.us/guidebook/chapter7.pdf.(accessed 08/09/2012)

Oleszek W.J Congressional Oversight: An overview Congressional Research Service Report for Congress 2010 http://www.fas.org/sgp/crs/misc/R41079.pdf (accessed 08/09/2012)

O’Regan K Checks and Balances Reflections on the Development of the Doctrine of Separation of Powers in the South African Constitution PER Potchefstroom Electronic Law Journal Vol 8 No 1 Potchefstroom 2005. http://www.nwu.ac.za/sites/default/files/images/2005x1x_ORegan_art_tdp.pdf (accessed 20/07/2012)

Policy and Discussion Documents

African National Congress Legislature and governance Policy Discussion Document March 2012 http://www.anc.org.za/docs/discus/2012/legislaturek.pdf (accessed !5/08/2012)

African National Congress Legislative and Governance NEC Sub-committee Provincial and Local Government Review Discussion Paper 2010 http://www.anc.org.za/docs/discus/2010/summitz.pdf (accessed 11/09/2012).

 African National Congress Recommendation from the $th National Policy Conference June 2012 http://www.anc.org.za/docs/pol/2012/policy_conferencev.pdf (accessed 16/09/2012).

Department of Cooperative Governance and Traditional Affairs (CoGTA) State of Local Government: Overview Report 2009 http://www.pmg.org.za/files/docs/091017tas.pdf Accessed 15/09/2012)

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[1] Hornby A.S Oxford Advanced Learners Dictionary of Current English 2010.

[2] Oleszek W.J Congressional Oversight: An overview Congressional Research Service Report for Congress 2010 4.

[3] Lemos L B Legislative Oversight of the Executive Branch in Six Democracies in Latin America 2010 7

[4] Ohio Legislative Service Commission A guide Book for Ohio Legislators 2010 73.

[5] Kaiser, Oleszick and Talelman Congressional Oversight Manual 2010 2-3.

[6] O’Regan K Checks and Balances Reflections on the Development of the Doctrine of Separation of Powers in the South African Constitution 2005 4, quoting Thomas Madison in the Federalist Paper.

[7] De Visser and Akintan Institutional Tension Between Municipal Chairpersons and Executives-Speaking of Mayor Conflicts 2008 11.

[8] De Visser and Akintan 2008 11, and O’Regan K 2005 4.

[9] Re: Certification of the Constitution of the Republic of South Africa, 19996 1996 (10) BCLR 1253 (CC), 1996 (4) SA 744(CC) at par 108=109.

[10] O’Regan K 2005 5.

[11] Bovens M Public Accountability in The Oxford Handbook of public Accountability 2005 184.

[12] Quoted by Lindberg S.I Accountability: The Core Concept and its Sub-types in Africa power and politics Working Paper No 1 1999 7.

[13] Section 42(3) of the Constitution of the Republic of South Africa 1996.

[14] Section 55(2) of the Constitution.

[15] Section 92(3) (b) of the Constitution.

[16] Section 114(2) of the Constitution.

[17][17] Section 133(3) (b) of the Constitution.

[18] Section 151(2) of the Constitution.

[19] Constitutional Principle No IV of the Constitutional Principles.

[20] Section 43(a) of the Constitution.

[21] Sction 83 of the Constitution.

[22] Section 163(1) of the Constitution.

[23] Section 43(b) of the Constitution.

[24] Section 125(1) of the Constitution.

[25] Section 151(2) of the Constitution.

[26] Section 53(1) and (2)(a) of the Systems Act.

[27] Section 59(1) of the Systems Act.

[28] Democratic Alliance v Masondo 2003 (2) BCLR 128 (CC) Para 60.

[29] De Visser J The Political- Administrative Interface in South African Municipalities: Assessing the Quality of Local Democracies in Commonwealth Journal Of Local Governance 2010 91.

[30] De Visser and Akintan 2008 15.

[31] African National Congress Legislative and Governance NEC Sub-committee Provincial and Local Government Review Discussion Paper 2010 17.

[32][32] Department of Cooperative Governance and Traditional Affairs (CoGTA) State of Local Government: Overview Report 2009 10.

[33] De Visser and Akintan 2008 23.

[34] De Visser and Akintan 2008 24-25.

[35] ANC Recommendations from the 4^th National Policy Conference June 2012 30.

[36] De Visser 2010 93.

[37] De Visser 2010 90.