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Devolution, Urban Autonomy and Local Governance in the Cities of the SADC

Document Cited in Related
Vincent
Pages612-635
Published date01 November 2020
DOI10.3366/ajicl.2020.0342
Date01 November 2020
INTRODUCTION

Most people in the world now live in cities and the wave of urbanisation has not yet crested. Cities are where the forces of globalisation converge – they are where the planet's most pressing challenges and threats originate, as well as where these are felt and must be confronted and solved. Unsurprisingly, therefore, cities are emerging as crucial sites of governance and constitutionalism, both within and beyond nation-states.

The literature on globalisation has long engaged with the increased economic and social clout of urban localities, and typically details transnational, inter-urban competition for the location of investment, capital, skills, labour and expendable income.1 Increasingly, this literature also betrays concern for the human dimensions, side effects and after effects of global economic processes at a localised, urban scale, as well as a recognition that the ways in which particular cities operate contribute to a range of economic and social outcomes at bigger scales.2

Reflecting this, Sustainable Development Goal (SDG) 11 in the UN's 2030 Development Agenda3 contains an imperative on states to ‘make cities and human settlements inclusive, safe, resilient and sustainable’. Moreover, the UN's recently adopted New Urban Agenda (NUA) speaks of an ‘urban paradigm shift’ that requires states to ‘readdress the way we plan, finance, develop, govern and manage cities and human settlements, recognizing sustainable urban and territorial development as essential to the achievement of sustainable development and prosperity for all’.4 Within this paradigm shift, these documents and their implementation plans speak of deploying the ‘force’ of urbanisation towards overcoming major global challenges, through policies aimed at inclusive and sustainable urban living.5 In particular, the NUA emphasises the need for policies aimed at ‘strengthening urban governance, with sound institutions and mechanisms that empower and include urban stakeholders, as well as appropriate checks and balances, [thereby] providing predictability and coherence in urban development plans to enable social inclusion, sustained, inclusive and sustainable economic growth, and environmental protection’.6

The NUA further clarifies that strengthening urban governance institutions also involves empowering, capacitating and democratising urban local government, so as to enable transparency, accountability and participation in the quest for a sustainable urban future.7 This lends an urgent new dimension to conversations on the constitutional status of local governments and the devolution of governmental functions. While these have conventionally focused on notions of subsidiarity, efficiency and effectiveness, and on democratic virtues and drawbacks of government by institutions ‘close to the people’, they must now also consider the institutional ability of urban local governments to contribute to solving problems (such as poverty, environmental and security threats, and economic marginalisation) that originate from structures operating beyond the parochial scale. Moreover, given global shifts in economic and political power, the institutional arrangements flowing from these conversations are increasingly determinative of collective fates.8

The importance of paying attention to the formal dimensions of urban autonomy and governance is illustrated by the increasing tendency of city governments around the world to act independently in various realms, regardless of whether their actions are legally or constitutionally ordained. Indeed, while the divergent local government arrangements in constitutional systems around the world typically bestow only limited and restrained autonomy on cities, this seldom reflects the true extent of autonomous urban local government activity.9 Domestically, cities are increasingly exercising de facto control over governance in a range of functional areas – sometimes crossing swords with ‘higher-level’ governments, but more typically simply going about the business of day-to-day urban administration in ways that belie, or at least extend significantly beyond, their role on paper.10 Internationally, local government is increasingly demanding a seat at the decision-making table (as illustrated by the growing clout of organisations such as United Cities and Local Government (UCLG) and the C40 Cities for Sustainability group), whereas collaboration between individual cities, as well as collective cross-boundary urban policy initiatives, are increasingly commonplace, much as they remain unperceived by formal structures of international relations and international law.11

The upshot is that, nowadays, formal legal structures often fail to equip urban local governments for the increasingly complex roles they are required to play, and just as often fail to perceive or guide the roles that they do play. This is problematic not only because it means that the law often (unintentionally) prevents or restrains cities from adequately responding to opportunities or challenges, but also because it thereby fails to keep in check those that act regardless.

This article considers the links between urban autonomy and the constitutional and legal powers, functions and responsibilities of urban local government in countries of the Southern African Development Community (SADC). The cities in the region function under a wide array of constitutional and legal arrangements, but all face rapid, unplanned and uneven urbanisation, poverty, environmental degradation, inequality, overcrowding, underdevelopment, spatial and socio-economic legacies of colonialism, infrastructure shortfalls and lack of governmental capacity.12 Like other cities in sub-Saharan Africa, they operate mostly on the edge of the global urban economy, hampered by a colonial legacy of an imbalanced and extractive economy, a disconnected, fragmented and inefficient urban form, low levels of employment, industrialisation and economic participation, and a lack of economic agglomeration.13 Governance-wise, as will be shown, devolution of state power across the region has been incomplete, haphazard and uneven, and has been bedevilled by politically divided authority, party-political turf-wars, human and financial resource shortages, and dysfunctional accountability, intergovernmental relations and community participation structures. Yet, the cities of the SADC are the economic backbones of their nation-states and embody all the potential of urbanisation. As such, they are uniquely positioned to work towards achieving the goals of the SDGs and the NUA.

Accordingly, the article evaluates SADC cities’ constitutional status, their operational, functional and financial autonomy, their collaborative and strategic space and the different accountability structures to which they answer. It further reflects on structural and political challenges to effective urban autonomy in the region and suggests ways in which its exercise may better be steered towards the realisation of developmental goals.

 CONSTITUTIONAL AND LEGISLATIVE DIMENSIONS OF URBAN AUTONOMY IN THE SADC<xref ref-type="fn" rid="fn14"><sup>14</sup></xref> Background

The SADC consists of 16 states in southern sub-Saharan Africa and the adjacent Indian Ocean,15 which are party to a treaty-based organisation with headquarters in Gaborone, which aims for cross-border cooperation and economic integration, improved governance and regional development. The SADC's economic integration goals include the establishment of a free trade area, customs union, common market and common currency, but it has fallen behind its own targets and deadlines in this regard and is generally regarded as somewhat ineffective.16 Through the years, it has adopted binding protocols and strategic instruments on a range of developmental issues, but none of these focus on local government or urban governance. There is no SADC-wide local government organisation and local governments are not incorporated or accommodated in any of the SADC's decision-making structures.

In 2016, 16 cities in the SADC were rated by the Globalisation and World Cities Study Group (GAWC) as being ‘sufficiently connected’ to the global economy to be thought of as ‘world cities’.17 These are led by Johannesburg in South Africa, the region's economic powerhouse and only ‘alpha-rated’ global city. Four other major South African cities (Cape Town, Durban, Pretoria and Port Elizabeth) make the GAWC list, alongside Port Louis (Mauritius), Dar es Salaam (Tanzania), Lusaka (Zambia), Harare (Zimbabwe), Luanda (Angola), Maputo (Mozambique), Gaborone (Botswana), Blantyre (Malawi), Antananarivo (Madagascar) and Kinshasa (DRC).

One of the reasons offered for the SADC's slow progress towards its goals is that its member states have very different legal systems due to their different colonial histories. This is especially true for commercial, trade and private law.18 Constitutionally, there are two monarchies (Swaziland and Lesotho, with the former being more absolute and the latter more symbolic in nature), alongside democracies ranging from predominantly unitary states (such as Botswana and Mauritius) to states (notably South Africa and Tanzania) with federal characteristics. All states in the region have written Constitutions.

Local government is acknowledged and (in principle) ensconced in several of these Constitutions, though only those of South Africa (1996), Angola (2010), Malawi (1994), Zimbabwe (2013) and Zambia (2016) elaborate on their powers, functions and capabilities in any detail. The Constitutions of Mozambique (2004), Lesotho (1993), Namibia (1990), Swaziland (2005) and Tanzania (1977) merely mandate the establishment of local government and its legislative regulation, whereas no mention is made of local government in the Constitutions of Botswana (1966), Mauritius (1968) and the Seychelles (1993).19

All the SADC states have legislative frameworks for local government, with most distinguishing urban councils...

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