LE 260: ELEMENTS OF CENTRAL & LOCAL GOVERNMENT

Central and Local Government Overview

• Functions of Central Government (CG):

  • Enactment and Maintenance of Law and Order: For the protection of all citizens and people within the boundary.
  • Defense of the Country: Safeguarding national sovereignty.
  • Promotion of Economic Activities: Creating conditions for growth and stability.
  • Provision of Social Amenities: Delivering public goods to the citizenry.
  • Conduct of External Relations: Managing international diplomacy and treaties.

• Division of Service Delivery Functions:

  • National Importance Functions: These are reserved strictly for the central government.
  • Semi-Autonomous Bodies: Functions of national importance requiring technical expertise are handled by semi-autonomous bodies such as the Volta River Authority ($VRA$), Civil Aviation, Ghana Cocoa Board ($Cocoboard$), and the Lands Commission.
  • Local Peculiarities: Matters specific to certain localities are performed through devolution on behalf of the central government, giving rise to local government structures.

• Definition of Local Government:

  • Semi-autonomous bodies created by central government to undertake functions within specific localities.
  • Government at the "grass root" level established by an Act of Parliament.
  • A corporate body with defined territorial areas, as per Section $4(1)$ of $Act\,936$.

Decentralization: Concepts, Types, and Implications

• General Definitions:

  • Defined as any act where a central government formally cedes powers to actors and institutions at lower levels in a political, administrative, and territorial hierarchy.
  • Per the Commonwealth Secretariat ($1987$): "Any deliberate change in the organization of government involving the transfer of powers, resources and functions from the centre to units of government administration at sub-national level."

• Types of Decentralization:

  • Political Decentralization: Seeks to give citizens and elected representatives more power in public decision-making. It supports democratization and pluralistic political structures through citizen involvement in policy formulation and implementation.
  • Administrative Decentralization: The transfer of responsibility for planning, financing, and management of public functions from CG to local units, subordinate units, or semi-autonomous public authorities.
    • Forms of Administrative Decentralization:
      • Devolution: Constitutional or legal power given to a local unit to rule with little to no central control. Common in federal states.
      • Deconcentration: Delegation of administrative functions to local units with considerable central supervision. Common in unitary states (e.g., Ghana Education Service ($GES$), Ministry of Food and Agriculture ($MOFA$), Ministry of Health ($MOH$)).
      • Delegation: Powers are assigned to sub-governmental bodies (local authorities or public corporations) that remain accountable to the central authority.
  • Fiscal Decentralization: The transfer of financial resources and responsibilities. It includes:
    • Self-financing or cost recovery via user charges.
    • Co-financing and co-production arrangements.
    • Local revenues via property taxes or indirect charges.
    • Central government transfers, borrowing, and resource mobilization.
  • Economic or Market Decentralization: Shifting responsibility for economic functions from the public to the private sector.
    • Privatization: Leaving provision of goods and services to the free market or public-private partnerships.
    • Deregulation: Reducing legal constraints on private participation or allowing competition in services previously monopolized by the government.

• The Need for Decentralization:

  • Efficiency: Promotes accountable administration.
  • Local Development: Crawford ($2004$) argues societies gain socially and economically from responsive decentralization.
  • Service Relevance: Representation and participation lead to development planning relevant to local contexts (Akudugu et al., $2012$).
  • Power-Sharing: Acts as a form of checks and balances.
  • Minority Protection: Potential to protect ethnic and traditional minority interests.

• Challenges and Problems:

  • State Capture: Potential for local-level corruption and elite capture.
  • Lack of Transparency: Arbitrary use of resources for political rather than public interest.
  • Capacity Constraints: Shortages in human, logistical, and financial resources leading to ineffective delivery.

Historical Development of Local Government in Ghana

• Pre-Independence Era:

  • Native Authority System: Known as the "Indirect Rule" system during the colonial era.
  • Parallel Tracks: Local government developed via the Municipal Council Ordinances (regulating major municipals) and the Native Jurisdiction Ordinances (regulating the rest of the country through State Councils and Native Authorities).
  • Key Milestones:
    • $1859$: Municipal Ordinance established municipalities in coastal towns.
    • $1943$: Elected town councils were established for Accra, Kumasi, Sekondi-Takoradi, and Cape Coast.
    • $1949$: Coussey Committee recommendations.
    • $1951$: Local Government Ordinance ($No.\,20$) established urban and local councils in medium towns but failed to bring major structural changes.
    • Impact of $1951$ Ordinance: It strengthened the powers of chiefs (who headed new councils) and empowered local authorities to collect proceeds from stool lands (Lawer, $2017$).

• Post-Independence Development:

  • $1957$ Independence Constitution: Divided the country into $5$ regions (Eastern, Western, Ashanti, Northern, and Trans-Volta Togoland) with Regional Assemblies.
  • $1960$ Republican Constitution: Expanded to $7$ administrative regions (adding Central and Upper regions).
  • Local Government Act, $1961$ ($Act\,54$): Created City, Municipal, and Local Area Councils and allowed for Village, Town, and Area Committees. It introduced elections but banned traditional authority representation, creating a problematic Dual Hierarchy Model.
  • $1974$ Reforms: The Local Administration Act, $1971$ ($Act\,359$) was implemented via the Local Administration (Amendment) Decree, $1974$ ($NRCD\,258$). It established a Single Hierarchy Model with a four-tier structure (Regional Councils, District Councils, Area/Municipal/Urban/Local Councils, and Town/Village Development Committees).

• The $1988$ Reforms:

  • Legal Backing: Local Government Law $1988$ ($PNDCL\,207$).
  • Features:
    • Renamed bodies to Metropolitan, Municipal, and District Assemblies ($MMDAs$).
    • Established Regional Co-ordinating Councils ($RCCs$).
    • Heads were called District Secretaries (changed to District Chief Executives after $1992$).
    • Composition: $\frac{2}{3}$ directly elected; $\frac{1}{3}$ appointed by the government (replacing chiefs).
    • Established an elected Presiding Member.
    • Expanded to $110$ districts by $2003$.

Contemporary Local Government Structure and Forms

• The Current Ghanaian System:

  • Governed by the $1992$ Constitution (Chapter $20$) and the Local Governance Act, $2016$ ($Act\,936$).
  • Composition (Act $936$): $70\%$ elected members and $30\%$ government appointees.
  • Structure:
    1. Regional Coordinating Council ($RCC$)
    2. Metropolitan Assembly (4-tier): Sub-Metropolitan District $>$ Town Council $>$ Zonal Council $>$ Unit Committees.
    3. Municipal/District Assembly (3-tier): Urban/Town/Area Council $>$ Unit Committees.

• Universal Management Styles:

  • Mayor-Councillor System: (British model) Councillors are elected. The Mayor is the chairman. The Mayor can be indirectly elected by councillors (e.g., England, France, Mali), directly elected by the people (e.g., USA, Greater London), or appointed by the government (e.g., Ghana, Netherlands, Canada).
  • City Manager System: (USA model) Councillors are elected on a non-partisan basis. The council hires a professional City Manager based on qualifications and experience for a fixed term.

Legal Framework and the Doctrine of Ultra Vires

• Primary Legislation:

  • $1992$ Constitution (Art. $240$-$256$).
  • Local Governance Act, $2016$ ($Act\,936$) [Repealed Acts $462$, $455$, and $656$].
  • Land Use and Spatial Planning Act ($Act\,925$).
  • Civil Service Law $1993$ ($PNDCL\,327$).
  • NDPC Acts ($Act\,480$ and $Act\,479$).
  • Institute of Local Government Studies Act $2003$ ($Act\,647$).

• Legal Personality:

  • Local authorities are corporate bodies with perpetual succession. They can sue and be sued.
  • They possess no inherent powers; they must act within the framework of the law.

• Duty Types:

  • Mandatory Duties: (Statutory word "shall") A legal duty that, if failed, allows citizens to take legal action.
  • Permissive Duties: (Statutory word "may") Powers that allow an authority to act at its discretion (e.g., establishing rural health centers).

• Doctrine of Ultra Vires:

  • Literally means "beyond one's powers."
  • Traditional View: Performance of only what is expressly or impliedly required by law.
    • Case: Attorney General vrs Fulham Cooperation (1929). The council was empowered to build bathhouses but built a laundry instead; this was held ultra vires.
  • Modern View: Accommodates "reasonably incidental" actions.
    • Case: Attorney Gen. Vrs Great Eastern Railway Cooperation. Construction of railway sleepers alongside docks was held as reasonably incidental.
  • Modern Test for District Councils:
    1. Is it specifically authorized?
    2. Is authority reasonably implied by the linguistic context of the statute?
    3. Is the act reasonably incidental to carrying out a statutory obligation?

Central Government Control over Local Authorities

• Legislative Control:

  • Bye-laws require approval (e.g., by the $RCC$).
  • Expenditure or loans may require parliamentary approval.

• Executive Control:

  • The President controls $LAs$ through the Minister of Local Government.
  • The President can dissolve or suspend an Assembly for up to $1$ year via Executive Instrument.
  • $DCEs$ can be dismissed per Section $20$ of $Act\,936$.

• Financial Control:

  • Assemblies must submit yearly budgets to the $RCC$/Minister of Finance.
  • Heavy dependency on the District Assemblies Common Fund.
  • Auditing by internal auditors and the Auditor General to prevent fraud.
  • Surcharge and Disallowance: Auditor General can penalize officials for excess expenditure.
  • Case: Roberts V Hopwood (Poplar Case). The House of Lords held that paying wages significantly higher than market rates ($£4$ per week) was an unlawful use of ratepayer money, as the council acts as a trustee of public funds.

• Judicial and Informal Control:

  • Certiorari: Quashing powers if the authority acts ultra vires.
  • Liability for damages/compensation to individuals.
  • Informal: Public criticism, pressure groups, and demonstrations.

The Principles of Natural Justice

• Constitutional Mandate:

  • Article $296$ ($1992$ Constitution): Administrative bodies must act fairly and reasonably.

• Primary Rules of Natural Justice:

  • 1. Nemo judex causa sua (Rule against Bias): No man shall be a judge in his own cause.
    • Basis: Independence and impartiality. Bias targets include pecuniary interest, blood relations, marriage, friendship, or negative judicial comments.
    • Case: Dimes V Grand Junction Canal (1852). Lord Chancellor's decision was invalidated because he held shares in the company.
    • Case: Regina vrs Sussex Justice. Conviction quashed because the judge’s clerk belonged to a firm representing the opposing party.
    • Case: Akosua Bedabuo v Yaa Hima (1948). Judgment set aside because the panel chairman married the defendant after the trial.
    • Case: Pinochet (1999). Extradition quashed because a judge’s wife was an executive at Human Rights Watch.
    • Case: Sierra Leone War Crimes Court (2004). Geoffrey Robertson was disqualified for RUF trials due to bias expressed in his book.
  • 2. Audi alteram partem (Hear the other Party): No man should be condemned unheard.
    • Case: Broadent Vrs Rotterdam Corporation. Demolition order quashed because the corporation refused to hear the plaintiff’s repair proposals.
    • Case: Awuni v West African Examinations Council (2003-04). $WAEC$'s cancellation of results was overturned because students were not heard.
    • Case: Rep. Vrs The V-C, KNUST (Ex-parte: Enekwa). Dismissal of students for misconduct was set aside because the university failed to set up an inquiry committee as per its own guidelines.

• Exceptions - Doctrine of Necessity:

  • Where a statute compels a specific person to perform a function, they must do so even if natural justice rules appear breached (e.g., the Chief Justice empanelling a court even if they are a defendant).
  • Case: FRANK AGYEI TWUM v ATTORNEY-GENERAL BRIGHT AKWETEY [2006]. Held that empanelling a bench is a ministerial/administrative act, not judicial, so natural justice principles do not apply to the selection process itself.