Unfinished businessLocal officials have been elected, now their authority must be spelt out through laws
Nepal’s new constitution was promulgated with a determination to fulfil the people’s aspirations for sustainable peace, good governance, development and prosperity through a federal, democratic and republican system of governance. The foundational basis of a federal democratic republican system had been affirmed by the Interim Constitution 2007. It led the state towards a major governance and constitutional transformation and carried the essence and principle of a federal republic until it was adopted and acknowledged in the new Constitution of Nepal 2015.
The current form of federal governance requires the election of representatives to the three different tiers of government: federal, provincial and local. Local elections have been held in six out of the seven provinces. This is the first time in 20 years that elected local bodies have been set in motion to lead local level
governance. As per the constitution, jurisdictional authorities and responsibilities have been delegated to the elected local and provincial representatives.
The constitution further guarantees other arrangements with regard to local level authorities. As per Article 56 (4), village bodies, municipalities and district assemblies will be established at the local level. The commencement and term of local body officials have been guaranteed under Article 303 (3). Executive power at the local level has been vested in the village or municipal executive by Article 214. Similarly, local authorities have been empowered to control and regulate the town police, local taxes—including land revenue collection—and basic health and education, among other services.
A serious concern in the current context is the veracity of legislative arrangements to scrutinise the obligations of elected local representatives or governments. Although the constitution provides the structural framework for local bodies, institutional and functional legitimacy depends on domestic acts and regulations governing local bodies. For instance, the Local Self-Governance Act 1999 (LSGA) gives decentralised powers and responsibilities to the local bodies while the Good Governance Act 2008 unfolds the administrative front of governance at different levels.
Although both these acts are subject to amendment and consolidation, only a draft bill to amend the LSGA has been tabled in Parliament. While the Good Governance Act maps out the administrative functions to promote and sustain good governance, it remains obsolete in terms of devolving administrative functions as per the new federal structure. Hence, alongside the Good Governance Act, other acts regulating local level undertakings need timely amendments too. For instance, divisions in the form of development regions, zones and districts, and the provision related to the power, functions and duties of the regional administrator and district administration in the Local Administration Act are inconsistent with the changed context
Recently, the Ministry of Federal Affairs and Local Development issued a directive about budget formulation, implementation, fiscal management and property transfer at the local level. The directive mandates that a law be drafted to disburse or spend the revenue collected by the local governments and the grant amounts received from the federal government. Since local governments will be receiving a huge amount of funds, transparent and accountable management of the finances is necessary. In the present situation where local representatives have commenced their duties, the absence of laws and regulations makes it difficult to hold them accountable for misconduct. It is high time that amendments to local laws and regulations are speeded up.
Efforts need to be made to draft new bills or amend existing laws. The parliament needs to expedite the process of passing the bills registered with it. Civil society organisations need to precisely demonstrate their expertise in policy formulation and implementation regarding local governance. The elected local representatives hailing from different walks of life are most likely to be unaware of their rights and obligations stated in one or more laws. Accordingly, local representatives and people need to be educated about their roles and responsibilities enshrined in the constitution and legislative instruments including policies, guidelines and regulations.
The essence of good governance through local development is unlikely to be met in the absence of governing local laws. There is a serious need for the current laws to be revised. Likewise, local officials and people need to be made aware of them. The essence and spirit of the constitution to establish ‘good governance, development and prosperity through the federal, democratic, republican system of governance’ will remain unclear in the absence of local laws and awareness among representatives and inhabitants.
Devkota is an advocate and holds an LLM in Rule of Law for Development from Loyola University, Chicago