A quick analysis of certain sections of THE LGA

[Lotus]

A quick analysis of certain sections of
THE LOCAL GOVERNMENT BILL of 2003
by Sanjit Teelock,
Local Government Committee,
Mauritius Labour Party.

(1) "2. Interpretation
(1) In this Act -[…]
"valuer" means any competent person appointed by a municipal council to value and assess -
(a) the rateable value under this Act; and
(b) the gross and net annual value under the repealed Local Government Act 1989,
of any immovable property situate in the area within the jurisdiction of the municipal council;"
Previously such work was carried out by Government Valuation Officers. There is
no specific definition with regard to the qualifications required for the valuer apart
from the word "competent". Furthermore, the implication is that the work would be
allocated to the private sector, in a field where standardisation and regularisation
are quite poor.

(2) "4. Divisions of Towns and Districts into electoral wards

(1) The President shall, after consultation with the Electoral Boundaries Commission and such other person as he thinks fit, by Order provide for -
(a) the division of a town or district into a specified number of electoral wards;"
No guidelines are given as regards to population or geographic constraints. If population alone is used to determine the ward sizes, then most rural wards will be of much greater surface area than their urban counterparts.

(3) "7. Supplementary provisions for new area
Where a new administrative area is created under section 6, the President may, in the Order creating such area, or in any subsequent Order -
(a) appoint persons to act as councillors of the local authority of that area;

(b) fix the date on which the first councillors shall retire from office; and
(c) fix such dates, times and places for the first election of councillors or appoint such persons to perform such duties, and make such temporary modifications to this Act, applying to that area, as may appear necessary to him so that such provisions be applicable to the first constitution of the local authority."

This provision is to allow for the appointment of an interim nominated council. As no mention is made of advice of the Minister, this effectively confers to the President certain executive powers.

(4) "11. Election of municipal councillors
[…]
(4) The President may, at any time, by Order, dissolve a municipal council."
New executive powers conferred to the President. No justification for dissolution required.
(5) "13. Disqualification of councillors
No person shall be qualified to be a councillor if he - […]
(c) is the holder of, or is acting in, an office of emolument -
(i) other than that of member of the National Assembly, under the State;"
According to the the press report in Week-End of the 27th of April: ""Il n'y aura
plus de députés/conseillers avec la nouvelle loi sur les Administrations régionales", a
fait comprendre le ministre Lesjongard." Yet this section contradicts the
Minister's statement.

(6) "16. Term of office of municipal councillors
Subject to the provisions of this Act, the term of office of a municipal councillor shall begin on the day on which he takes the oath in terms of section 17 and, except for the Mayor and Deputy Mayor, shall terminate on the eve of the day on which polling takes place for an ordinary election of councillors."
The term of office should end on the eve of NOMINATION day, as was the case in the old Local Government Act (LGA 1989). Even Members of Parliament (who are not Ministers) are not allowed to stay in office after nomination day. This would affect free and fair elections.

(7) "22. Election of Mayor and Deputy Mayor
(1) The Chief Executive shall, between the third day and the seventh day following the proclamation of the results of an ordinary municipal election, convene a meeting of all the returned candidates who, after taking the oath referred to in section 17, shall meet under the chairmanship of the Senior Councillor, to elect from amongst themselves a Mayor and a Deputy Mayor who, unless they resign their office or are sooner removed, shall remain in office -

(a) in the case of the Mayor until such time as a new Mayor is elected following an ordinary election for the renewal of the whole Council;"
According to the the press report in Week-End of the 27th of April, the Minister stated: "Il a confirmé que le mandant du maire sera de cinq ans en vue de permettre aux premiers magistrats des différentes villes de mettre à exécution un plan de développement quinquennal."
However, as the Mayor will be elected by the councillors, nothing prevents arrangements being made to share the mandate, as is a common occurrence in the present District Councils. Furthermore, the Mayor could be changed if ever the majority of councillors so decided.

( "23.Election procedure
(1) In the case of elections for the office of Mayor, and Deputy Mayor, appointed after an ordinary election, the Senior Councillor shall receive nominations of candidates from any councillor who has been already sworn, except that no member shall nominate more than one member for the same office.
[…]
(4) Where, on the second ballot, there is again an equality of votes, the Senior Councillor shall exercise a casting vote."
This is a new procedure replacing drawing of lots. It is debatable whether this is more democratic.

(9) "26. Revocation of Mayor
Where the Mayor of a local authority no longer commands a majority or where a vote of no confidence has been passed against him, the President may-
(a) revoke the Mayor and order that a new Mayor be elected in accordance with section 23 within such time as he shall fix; or
(b) where no person commanding a majority can be elected Mayor within the time fixed under paragraph (a), suspend the whole Council and, after consultations with the Prime Minister and the Leader of the Opposition, appoint a Mayor and a Deputy Mayor and such number of persons as he may determine to act as councillors until such time as the term of office of the suspended councillors would normally have terminated under section 16."
Emphasis is put here on a nominated council in times of crisis rather than fresh
elections.

(10) "28.Vacation of office by resignation
(3) Where a person who has been elected as Mayor or Deputy Mayor resigns his office, he shall be deemed to have also resigned his office as councillor."
This is a very weird provision: if a Mayor resigns on a question of principle, he will also lose his seat on the Council.

(11) "33.Casual vacancies amongst councillors
[…]
(2) Subject to subsection (3) and section 34, the vacancy shall be filled by
election -
(a) in case of less than 3 vacancies amongst the councillors of a municipal council, where the Minister considers that it is in the public interest to hold an election and he so informs the Electoral Supervisory Commission; or
(b) in case of more than 3 vacancies amongst the councillors, unless the Electoral Supervisory Commission, after consultation with the Minister, considers that the vacancies will not upset the relativity between the number of councillors in the majority group and in the opposition respectively."

This provision was introduced by the MSM led government in 1988 with the tacit agreement of the MMM opposition at the time. The idea was to avoid numerous municipal by-elections. With the reduction in the number of councillors, this provision is out of place, even more so since some councils only have 12 members. By-elections are of the utmost importance.

(12) "34.Vacancy within 12 months of election
[…]
(2) Where the number of remaining councillors of a local authority falls below the number required for a quorum of councillors of that authority, the President shall appoint such number of persons to be councillors of the local authority until the holding of such elections as may be necessary to ensure that there is a quorum of councillors at meetings of the authority. "
More executive powers to the President. This provision would not be necessary if regular by-elections were held.

(13) "38.Association of Local Authorities"

No mention is made as to the public officers involved. In the past this lack of detail has been abused by the MMM.

(14) "40.Comités de Quartiers
(1) Every local authority may, for consultative purposes, establish in such parts of the town or district falling under its jurisdiction, such Comités de Quartiers as it may consider appropriate."

No guidelines whatsoever. There will be no control as to political patronage. Village Councils are being abolished and small villages may find themselves not represented at either Municipal Council level or in the Comité de Quartiers.

"(2) Every Comité de Quartier shall comprise -
(a) not more than 9 persons living or working in that part of the town or district in respect of which the Comité is established, who shall be appointed every year by the Council;
(b) not more than 2 Councillors, other than the Mayor and the Deputy Mayor, appointed every year by the Council."
This is nothing less than a way to dole out public funds to nominated political
agents.

(15) "42.Functions of local authorities
[…] (2) A local authority shall, within the limits of the area under its jurisdiction, be responsible for -
[…]
(i) the formulation and implementation, particularly in deprived regions, of policies aiming to respond better to -
(i) poverty and exclusion - related problems;
(ii) the safeguard and promotion of the rights and welfare of children living within its administrative area;"
This work is presently the responsibility of government. It is doubtful whether local authorities can deal with such matters.

(16) "64.Annual estimates
[…]
(6) In considering the amount of grants to be allocated to the local authorities, the Minister responsible for the subject of finance shall give due consideration to the financial and development needs of the particular local authority and shall, for a fair allocation of the amount of the grants, take into account -
[…] (b) the possibility of the local authority concerned to increase its revenue by way of any local rates, fees or charges;
[…]
67. Grants may be withheld
Where the Minister is satisfied that -
(a) a local authority has failed to achieve or maintain a reasonable standard of efficiency and progress in the discharge of its functions; or
(b) the requirements of this Act are not being complied with,
he may withhold any grant payable to a local authority by such amount as he thinks just."

These two provisions effectively FORCE the imposition of a rural tax, despite
government claims to the contrary.

(1 "80.Levy of local rates
(1) Subject to the other provisions of this section, an annual local rate shall be levied on the owner of every immovable property situate in the rating area of a local authority."

Whereas section 74 of the old LGA 1989 specified that the net annual value of any taxable immovable property should exceed Rs1750, this requirement is no longer maintained. The result will be that all residential buildings in the rural areas, no matter how humble, as well as ALL low-cost urban housing estates, including those for cyclone refugees, will be liable for property tax. The only way out would be to appeal for remission due to poverty, which will probably result in the new councils being flooded with such requests. So much for Robert Ahnee's "chateaux".

(19) "82.Rateable value
[…]
(2) The Minister may, every 5 years, determine the percentage by which the rateable value of the immovable properties appearing on the cadastral database shall be increased to take into account the general increase in value of immovable properties."

Already power has been delegated from the Government Valuer to the private sector as regards initial valuations. Here, new powers are being given to the Minister, without specifying the statistics/criteria that will be used to work out the percentage increase.
[…]
(5) "For the purpose of this section -
"rateable value", in relation to any property, means its value ascertained on the basis of its market value, had it been vacant and available for letting."
Whereas section 80 of the old LGA 1989 was quite specific with regard to gross value and net value of properties, these details have been streamlined to the more subjective "market" value.

(20) "83.Rate due and payable
(1) The local rate leviable under section 80 shall, in respect of every financial year, be due on 1 July and shall, subject to subsection (2), be payable in 2 equal instalments, the first one on or before 31 July in that year and the second one on or before 31 January next ensuing.
(2) Where the Financial Controller, on a written application being made, is satisfied that a ratepayer is unable to pay the local rate in respect of any financial year within the periods specified in subsection (1), he may -
(a) accept that the local rate be paid without any surcharge, by bank standing order, in not more than 12 consecutive equal instalments during that financial year;"

According to the the press report in Week-End of the 27th of April, Robert Ahnee stated: "[…]que la formule de cette taxe sur la valeur immobilière des propriétés sera plus simple à calculer et que les contribuables seront en mesure de s'acquitter de la taxe sur une base mensuelle." He failed to mention the proviso of insufficient means. Then again, in view that Bank Standing Orders usually charge Rs25 for each transaction (ie Rs300 for 12 installments), one wonders how someone unable to pay in two parts would be able to take up the alternative monthly scheme.

(21) "89.Cadastral database
(1) Every local authority shall keep and maintain a cadastral database of all immovable properties situate in the rating area of the local authority and which shall consist of the entries specified in subsection (2), kept on computer or such other electronic device at the office of the Chief Executive."

No requirement for adequate back-up for data loss, due to accident or hacking, is mentioned.

(22) "91.Ascertainment of value of immovable property
[…]
(3) For the purposes of ascertaining the value of an immovable property under this section, the valuer or any person duly authorised by him in writing, may, at all reasonable times and after giving not less than 48 hours' notice in writing, enter on, survey and value, any immovable property in the area for which the valuer acts."

This is the first time in history that someone who is NOT a public officer is given the power to enter a private residence.

(23) "92.Notice for payment of local rate
(1) Any notice for the payment of local rate shall specify -
[…]
(b) the period in respect of which the rate is payable;"

Under the old LGA 1989, arrears going back to 5 years could be included. No details are specified in this section, which means that if a new municipal council takes a few years to evaluate a residence, the owner could find himself liable to the current tax with several years in arrears.

(24) "131.Local Government Tender Board
(1) There is established a Local Government Tender Board for the purpose of considering and approving tenders called by local authorities which shall be a division of the Central Tender Board.
[…]
(4) Subject to the other provisions of this section, any tender, the estimated value of which is less than one million rupees or such other sum as may be prescribed for the purposes of subsection (3), may be called, received, considered and approved by a local authority without any reference to the Board provided such tender has been approved by the Municipal Tender Committee which shall comprise -
(a) the Chief Executive or his Deputy, who shall act as Chairperson;
(b) the Financial Controller or his Deputy; and
(c) one senior officer in charge of any department other than that of the Chief Executive or the Financial Controller.2

Whereas tenders were previously award by a committee comprising the Mayor, some councillors and some officers, the new system will now put the Municipal Councils in front of a "fait accompli". Whether this measure will reduce corruption is extremely doubtful.

(25) "139.Use of computer system
(1) Notwithstanding the other provisions of this Act, the Chief Executive may direct the performance of any act or thing which is required to be done under this Act or any other enactment relating to local authorities or regulations made thereunder, to be made or done by such electronic or other technological means as may be approved by him.
(2) Unless otherwise authorised, the Chief Executive may, with effect from such date as may be specified in regulations made by the Council, direct that any matter, act or thing referred to in subsection (1) shall be made or done by electronic or other technological means.2

The same applies as to section 89 with regard to lack of back-up requirements.
(26) "FIRST SCHEDULE
BOUNDARIES OF THE MUNICIPAL COUNCIL OF PORT LOUIS"
Pailles should be included.
"BOUNDARIES OF THE MUNICIPAL COUNCIL OF CUREPIPE"
Midlands, including Seizième Mille should be included.
"BOUNDARIES OF THE MUNICIPAL COUNCIL OF VACOAS-PHOENIX"
Closel, Henrietta, should be included.
(27) "FOURTH SCHEDULE
Meetings and proceedings of local authorities
[…]
8. (1) No resolution expressly or impliedly repealing or altering a decision taken by the Council within the year preceding that resolution shall be proposed at any meeting held within that year unless prior notice thereof is given to the Chief Executive at least 10 days before the meeting.
(2) On receiving a notice under subsection (1), the Chief Executive shall do the needful so that notice of the motion is served on every councillor at least 7 days before the meeting and no such resolution shall have effect unless it is voted at the meeting by at least two-thirds of the councillors present.
(3) After a resolution expressly or impliedly repealing or altering a decision of the Council has been proposed and rejected, no councillor may propose the same resolution again or propose a new resolution expressly or impliedly repealing or altering the decision, unless -
(a) 6 months have elapsed from the date of the decision; or
(b) his proposal has the written support of half of the total number of councillors.
(3) Where for want of a quorum, the resolution cannot be put to the vote at 2 following subsequent meetings, no councillor may propose the same resolution unless 6 months have elapsed."

Such provisions have been used in the past as a way to propose bogus motions of no confidence against the Chairmen of District Councils in order to remain in power unhindered for 6 months. It might be wise to spell out explicitly that any resolution concerning a vote against a Mayor does not fall under this section.

"16. No business shall be transacted at a meeting of a local authority unless there are present -
(a) in the case of a meeting of the Council not less than 9 councillors;"

This provision makes no distinction between councils of 12, 15 or 18 members and will probably paralyse the smaller councils.