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Proposed Local Government Act

Preamble 

The Centre for Multiparty Democracy (CMD) is a platform for dialogue for political parties in Malawi. It sets out to contribute to the consolidation of multiparty democracy by striving for the development of a well-functioning multiparty political system and promotion of accountable and institutionalized political parties in Malawi.

As part of discharging its mandate in the past one and half years, the CMD has facilitated dialogue around the local Government Act in light of the amendments that have been done over the years including those of the year 2010, as well as gaps that have been identified since its enactment in 1998.

Involved in this dialogue are members of the Government/Civil Society Taskforce on local governance which include the Ministry of Local Government and Rural Development (MoLGRD), the Public Affairs Committee (PAC), the Catholic Commission for Justice and Peace-Archdiocese of Lilongwe; the Malawi Local Government Association (MALGA), PACENET, and the National Initiative for Civic Education (NICE-Trust). 

Below is the revised draft local Government Bill with specific aspects which were identified as requiring particular attention:

LOCAL GOVERNMENT (AMENDMENT) BILL 2014
A BILL
Entitled
An Act to amend the Local Government Act
ENACTED by the Parliament of Malawi as follows

  1.  This Act may be cited as the Local Government (Amendment) Act, 2014 
  2. Section 5 of the principal Act is amended  by-

(a) deleting subsection (1) ( c) and substituting it with the following_

“Paramount Chief, Senior Chief and Chief from the local government area, as non-voting members ex officio;”

(b) by deleting the words “as voting members” after the words “local government area” in subsection 1(b)

 (b) by deleting subsection 1(d) and  substituting it with the following-

“five persons, as non-voting members, to be appointed by the elected members to cater for  the interests of such special interest groups as the Council may determine the composition of which shall take into account gender representation of the Council”

  • The Principal Act is amended by inserting  immediately after section, the  following new sections 5A,  and 5B-

5A- (1)   The seat of a member of a Council, other than an ex-officio member shall become vacant-
(a)       if the  Council  has been dissolved;
(b)       if the member dies or resigns his or her seat;
(c)       if the member ceases to be a citizen of Malawi;
(d)       if the member assumes the office of President or Vice-President;
(e)       if any circumstances arise that, if he or she were not a member of the  Council, would cause that member to be disqualified for election under  any other Act of Parliament; or
(f)        if the member is sentenced to imprisonment without the option of a fine upon conviction by a competent court ; or
(f)        if the Council declares a member’s seat vacant in accordance with such Standing Orders as may permit or prescribe the removal of a member for good and sufficient reason provided that they accord with the principles of natural justice.
(2) The Chairman of the Council shall give notice in the Gazette in the event that the seat of any member of the Assembly shall become vacant under this section:
Provided that—

  • the Electoral Commission shall  hold  by-elections to fill any vacancy that shall occur in accordance with the provisions of the Local Government Elections Act;

(b)       any by-election to fill a vacancy that occurs shall be held within sixty days after the seat of the member becomes vacant or, if in the opinion of the Chairman of the Council the circumstances do not so admit, then as expeditiously as possible after the expiry of that period; and
(c)       any member elected at a by-election shall serve until such time as his or her seat becomes vacant in accordance with subsection (1).

(3) The Chairman of the Council may, upon a motion of the Council, postpone the declaration of a vacant seat for such period as that motion prescribes so as to permit any member to appeal to a court or other body to which an appeal lies against a decision which would require that member to vacate his or her seat in accordance with this section.
(4) The seat of an ex-officio or appointed member of the Council shall become vacant-
(a)       if the Council has been dissolved;
(b)       if the member ceases to hold the office under any law  which qualifies him or her to be a member of the Council;
(c)       if the member ceases to be a citizen of Malawi;

(d)       if the member dies or resigns his or her seat

(e)       if the member is  adjudged or otherwise declared bankrupt under any law and has not been discharged;
(f)        if the member is appointed to or to act in any public office
(g)       in case an ex-officio member if any circumstances arise that, if he or she were not a member of the  Council, would cause that member to be disqualified for election or appointment under  any other Act of Parliament;
(h)       if he or she knowingly fails to declare a conflict of interest relating to any matter under consideration by the Council.
(5) Subject to subsection (4) an appointed member of the Council may be removed from Council for reasons of misconduct or for  good and sufficient reasons  prescribed by the Council’s standing orders only after due inquiry  in accordance with principles of natural justice and subject to a resolution of the majority of the voting members of the Council. 



 5B (1) The Chairman of the Council shall declare vacant the seat of any member of the Council, other than an ex-officio and appointed member, who having been elected to the  Council  as a member of a political party voluntarily ceases to be a member of that party and joins another political partyrepresented in the Council.
(2) Notwithstanding subsection (1), all members of all political parties shall have the absolute right to exercise a free vote in any and all proceedings of the Council, and amember shall not have his or her seat declared vacant solely on account of his or her voting in contradiction to the recommendations of a political party, represented in the Council, of which he or she is a member. 

  • Section 6 of the principal Act is amended in subsection (1) (a) by inserting immediately after the word “make” the words “policy and”
  • Section 7 of the principal Act is amended by deleting subsection(4) and substituting it with the following-“The Chairman and Vice Chairman shall each serve in their respective capacities for a period of two and half years, unless sooner replaced, and shall be eligible to be re-elected for one additional term.”
  1. The Principal Act is amended by inserting immediately after section 7 the following new section 7A


7A (1)   The office of Chairman or vice- Chairman or the Council shall become vacant—
(a)       on the death or resignation of the holder;
(b)       if the holder ceases to be a member of the  Council;
(c)       if the holder becomes President, Vice-President, a Minister or a Deputy Minister; or
(d)       if the Council, by a resolution supported by the votes of not less than twothirdsof all the voting  members of that Council , resolves that the holder be removedfrom office:

Provided that the Chairman  and Deputy Vice-Chairman  shall have the right to be heard by the Council on his or her own motion on any matter relating to his or her removal from office.

            (2) In the event of the office of the Chairman or vice-Chairman of the Council becoming vacant through any cause whatsoever, the Council shall, at its next meeting immediately after the occurrence of such vacancy, elect amongst their number other than members ex officio, a Chairman and a Vice-Chairman

  1. Section 11 of the principal Act is amended by deleting subsection (2) and substituting it with the following_

Amendment of section 14 of theprincipal Act

  “The Chief Executive Officer or the District Commissioner shall be appointed by the Council on recommendation of the Local Government Service Commission.”

  1. Section 14 of the principal Act is amended by inserting  the following paragraph immediately after subsection  (4)-

 

“Provided that the Composition of service committees and the committees established under subsections (2) and (3) shall take into account gender representation. 

  1. Section 21 of the Principal Act is amended by-
  2. deleting  the words “ Minister may suspend the Council” in subsection (3) and inserting thereon the  following-

 “the High Court  may, on a motion of the Minister, suspend a Council pending the determination of whether the Council acted unlawfully or contrary to national policies;

  1.  deleting subsection (5)
  2. renumbering subsection (6) to read subsection “(5)”.

Section 26 of the principal Act is amended by:

  • deleting  the word “Minister” immediately after the words “subject to approval by”;
  • inserting immediately after the words “ subject to approval by”, the words  “ the Local Government Service Commission”.
  •  Section 51 of  the principal Act is  amended by inserting immediately after subsection (2)  the following  new subsection (3)-

(3)       the Local Government Finance Committee  may  disallow the estimates of a Council  either wholly or in part only if-
(a)       the estimates submitted by the  Council are not in line with the
Councils development plans;

(b)       the estimates of expenditure exceed the revenue to be collected by the Council;

(c)       the expenditure is not in line with national development goals
orthat if implemented will have negative effect on the national  economy or on the  economy  of the Council ; or

(d )      when the  estimates of theexpenditure is contrary to the provisions of the Public Finance and Management Act or any other law in the country.

  • Section 53 of the principal Act is amended by deleting the words “six months” in subsection (1) and inserting thereon the words “four months”.

 

OBJECTS AND REASONS
The Object of this Bill is to amend the Local Government Act in order to improve the effectiveness of Councils and to align the Act with the objectives of decentralization.

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For more information and comments, please contact
Dr. Gerard Chigona, Programme Manager
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