PER / PELJ - Pioneer in peer-reviewed, open access online law publications
Authors Liberty Masekesa & Oliver Fuo
Affiliation University of South Africa North-West University, South Africa
Email libertykudzai@gmail.com & Oliver.Fuo@nwu.ac.za
Date Submitted 11 April 2023
Date Revised 18 April 2024
Date Accepted 18 April 2024
Date Published 8 July 2024
Editor Prof H Chitimira
Series Editor Prof O Fuo
Journal Editor Prof C Rautenbach
How to cite this contribution
Masekesa L and Fuo O "The Potential of Spatial Planning as a Tool for Cities' Pursuit of Sustainable Development Goal 11 in Zimbabwe" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a15931
Copyright
DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a15931
Abstract
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This article analyses the extent to which the applicable legal and |
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Keywords
Sustainable Development Goal 11; spatial planning; local authorities; law and policy; Zimbabwe.
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1 Introduction
More than half the world's population is living in cities,
1
Liberty Masekesa. LLB LLM PhD (NWU). Postdoctoral Fellow, Department of Public, Constitutional and International Law (CLAW), University of South Africa (UNISA). Email: libertykudzai@gmail.com. ORCiD: https://orcid.org/0000-0002-1668-6743. This article draws from the PhD thesis of Dr Masekesa that was supervised by Prof Fuo and submitted to the NWU: The Role of Local Authorities in Realising Goal 11 of the Sustainable Development Goals (SDGs) in Zimbabwe (2021). Oliver Fuo. LLB LLM and LLD (NWU). Professor, Faculty of Law, North-West University (NWU), South Africa. Email: Oliver.Fuo@nwu.ac.za. ORCiD: https://orcid.org/0000-0002-1442-8599. 1 There is no universally accepted definition of a city. However, the term is broadly read to include all municipal or local governments exercising some form of legislative, executive, and administrative powers within a defined geographic jurisdiction. See Aust and Du Plessis "Introduction" 7. 2 UN SDG Progress Report 44. See also UN World Population Prospects 1. 3 Paragraph 2 of the Habitat III New Urban Agenda UN Doc A/RES/71/256 (2016) (hereinafter referred to as the NUA). 4 UN Transforming Our World: The 2030 Agenda (hereinafter referred to as Agenda 2030). 5 Masekesa 2021 PELJ 2. 6 See Part 2 below for details.
Spatial planning can be used to address urban sustainability challenges and therefore to promote the normative vision portrayed in SDG 11.
7
7 Van Wyk Planning Law 1. 8 Silva and Acheampong Developing an Inventory 11.
such as spatial plans, strategies and policies for regulating the location, timing and form of development.
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9 Healey et al Making Strategic Spatial Plans 3; UN-Habitat International Guidelines 2. 10 UN-Habitat International Guidelines 2. 11 Chan, Samat and Hoa "Decision Support System" 199.
Zimbabwe is committed to the pursuit of local sustainability as envisaged in terms of SDG 11 since it was among the 193 UN Member States that unanimously adopted the 2030 Agenda in 2015. A closer look at laws and policies in Zimbabwe shows that the commitment to promote local sustainability predates the adoption of the 2030 Agenda.
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12 Masekesa 2021 PELJ 10-12. 13 Republic of Zimbabwe 2020 http://zimbabwe.un.org/en/159037-zimbabwe-sdgs-review-progress-report; Masekesa 2022 AHRLJ 244; Masekesa 2021 PELJ 25-27. 14 See Parts 2 and 3 below for details.
In this context, the main objective of this article is to analyse the extent to which the applicable legal and policy frameworks in Zimbabwe enable cities to use spatial planning to pursue the vision encapsulated in SDG 11. Through engaging in this process the article reflects on the extent to which these frameworks make provision for some generic benchmarks for successful spatial planning distilled from the literature. We note that despite the agreement in the literature in terms of identifying these benchmarks, differences in economic, political, social, and technological developments can affect outcomes in different settings.
15
15 Stead 2012 Planning Practice and Research 104, 107.
and implementing spatial plans in pursuit of local sustainability in Zimbabwe. The third part of the article discusses how the law and policy framework in Zimbabwe positions cities to pursue the vision in SDG 11. The fourth part questions the extent to which the legal and policy frameworks in Zimbabwe empower cities, based on the generic benchmarks identified, to utilise spatial planning to advance local sustainability. Part five concludes this discussion.
2 The vision and mandate of cities in SDG 11
Cities across the world are expected in terms of SDG 11 to be "inclusive, safe, resilient and sustainable" by 2030. Even though there are no generally accepted parameters of what makes a city "sustainable", SDG 11 contains specific targets on a wide variety of issues that should be realised by cities across the globe.
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16 Fuo "Funding and Good Financial Governance" 87; SDG 11 (Targets 11.1-11.7, 11.a-11.c.) (available at UNEP date unknown https://www.unep.org/explore-topics/sustainable-development-goals/why-do-sustainable-development-goals-matter/goal-11_. 17 UN-Habitat SDG Goal 11 14-55; Masekesa 2021 PELJ 5-6; Van der Berg 2017 Obiter 561-563.
Outcome-oriented targets require local authorities to: 11.1) ensure access for all to adequate, safe and affordable housing, basic services and to upgrade slums; 11.2) provide access to safe, affordable, accessible and sustainable transport systems and to improve road safety by expanding public transport; 11.3) enhance inclusive and sustainable urbanisation and the capacity for participatory, integrated and sustainable human settlement planning and management; 11.4) protect and safeguard the world's cultural and natural heritage; 11.5) reduce the number of deaths and the number of people affected by economic and other disasters; 11.6) reduce their adverse per capita environmental impact with specific emphasis on air quality and municipal and general waste management; and 11.7) provide universal access to safe, inclusive and accessible green and public spaces.
On the other hand, process-oriented targets require local authorities to: 11.a) support positive economic, social and environmental links between urban, peri-urban and rural areas by strengthening development planning; 11.b) adopt and implement disaster risk reduction (DRR) strategies in line with the Sendai Framework for Disaster Risk Reduction 2015-2030 (the Sendai Framework); and 11.c) put pressure on national governments to seek international financial and technical support in building sustainable and resilient buildings.
Against the above background it may be thought that the set of SDG 11 targets may not be exhaustive as to what can be done by local authorities across the world to assist the states in which they are situated to foster local sustainability. Although there is no unanimity in the literature as to the definition of a sustainable city due to different typologies and characteristics that a sustainable city might present,
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18 See, for example, Du Plessis 2017 LDD 239-262; Doust 2014 Journal of Traffic and Transport Engineering 151-182; Eiraibe, Al-Malki and Furlan 2015 American Journal of Sociological Research 101-118; Jabareen 2006 Journal of Planning Education and Research 38-52. 19 For other definitions, see Du Plessis 2017 LDD 245-246; Sattherwaite Earthscan Reader 6; Doust 2014 Journal of Traffic and Transport Engineering 180; Jabareen 2006 Journal of Planning Education and Research 38 20 Joss Sustainable Cities 3. 21 Slavin "Rise of the Urban Sustainability Movement" 1-19. 22 For other definitions, see Sattherwaite Earthscan Reader 6; Doust 2014 Journal of Traffic and Transport Engineering 180; Jabareen 2006 Journal of Planning Education and Research 38.
SDG 11 underlines the need to employ planning as a local governance tool In pursuit of local sustainability.
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23 See, for example, SDG 11 (Targets 11.3 and 11.a).
3 Spatial planning as a local governance tool for realising SDG 11
Discussion on how cities should use spatial planning to promote local development is not new. It is therefore not surprising that SDG 11
acknowledges the importance of planning for the realisation of its targets.
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24 See, for example, SDG 11 (Targets 11.3 and 11.a). 25 Bryson Strategic Planning 6. 26 Yelder et al Effective Strategic Planning 1; Clarke and Stewart Planning for Change 6; Gates Strategic Planning 3; Cheshmehzangi and Dawodu Sustainable Urban Development 8. 27 UN-Habitat Habitat III Issue Paper 8 1. 28 UN-Habitat Habitat III Issue Paper 8 1-10; UN-Habitat The City We Need 2.0 8. 29 UN-Habitat Habitat III Issue Paper 8 1-10; UN-Habitat The City We Need 2.0 8; Chan, Samat and Hoa "Decision Support System" 199. 30 UN-Habitat International Guidelines 1-40.
Firstly, there should be a solid and predictable long-term legal framework for urban development.
31
31 UN-Habitat International Guidelines 3. 32 UN-Habitat International Guidelines 3. 33 Chigwata, Muchapondwa and De Visser 2017 J Afr L 44; Chigwata and Ziswa 2018 HJRL 311-312.
planning".
34
34 SDG 11 (Target 11.a.). See also SDG 11 (Target 11.b), which is measured by the proportion of "local governments" that adopt and implement local disaster risk reduction strategies in line with "national" disaster risk reduction strategies. 35 For details on horizontal integration, see Gupta and Nilsson "Toward a Multi-Level Action Framework" 275-281. 36 See SDG 11 (Targets 11.a). 37 Kanuri et al Getting Started with the SDGs in Cities 72. 38 Jabareen 2006 Journal of Planning Education and Research 39; Wheeler 2002 Journal of the American Planning Association 270-274. 39 Burton, Jenks and Williams "Compact Cities and Sustainability" 4; UN-Habitat International Guidelines 3.
Secondly, local authorities should have sufficient resources to successfully design and implement spatial and other related plans.
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40 UN-Habitat International Guidelines 3; Stead 2012 Planning Practice and Research 107; Kanuri et al Getting Started with the SDGs in Cities 49; Hendrick 2010 Public Administration Review 222; Virtudes 2016 Procedia Engineering 1711. 41 Virtudes 2016 Procedia Engineering 1711. 42 Kanuri et al Getting Started with the SDGs in Cities 49.
plans of local authorities should contain a realistic income plan, including the sharing of urban value between all stakeholders, and an expenditure provision to address the requirements of the urban plan.
43
43 UN-Habitat International Guidelines 3. 44 See SDG 11 (Targets 11.3, 11.4 and 11.a). 45 Fuo "Funding and Good Financial Governance" 87. The US dollar is predominantly the standard currency unit in which goods are quoted and traded, and with which payments are settled in, in the global commodity markets. See Kowalski 2020 http://www.thebalancemoney.com/how-the-dollar-impacts-commodity-prices-809294.
Thirdly, local authorities should facilitate public participation in spatial planning.
46
46 Virtudes 2016 Procedia Engineering 1711; International Council for Local Environmental Initiatives Local Agenda 21 Planning Guide 80; and SDG 11 (Targets 11.1; 11.2 and 11.7). 47 Virtudes 2016 Procedia Engineering 1711; International Council for Local Environmental Initiatives Local Agenda 21 Planning Guide 80. 48 Moyo "Basic Tenets of Zimbabwe's New Constitutional Order" 18; Mutema 2012 International Journal of Asian Social Science 2091. 49 SDG 11 (Target 11.3). 50 UN-Habitat International Guidelines 11.
Fourthly, it is important for politicians and management teams of local authorities to be committed to supporting the entire spatial planning process and the implementation of spatial and other related plans.
51
51 UN-Habitat International Guidelines 3; Mitchell 2018 State and Local Government Review 110.
planning process.
52
52 Šuklev and Debarliev 2012 Economic and Business Review 72-73.
The above factors would enhance the potential of spatial planning in driving development at the local level. The discussion below briefly explores the law and policy basis for sustainable cities in Zimbabwe.
4 The legal and policy basis for sustainable cities in Zimbabwe
The duty of local authorities to promote sustainable development in Zimbabwe predates SDG 11. A reading of the Constitution of Zimbabwe (2013), legislation and policies shows that local authorities in Zimbabwe have a legal duty to realise some of the aspirations captured in SDG 11. Although the Constitution does not clearly demarcate the mandate of local authorities, its National Objectives
53
53 Chapter 2 of the Constitution of Zimbabwe, Amendment (No 20) Act, 2013 (the Constitution). 54 Section 28 of the Constitution. 55 Sections 20(1)(d), 21 and 32 of the Constitution. 56 Sections 13(2) and 17-22 of the Constitution. 57 Sections 16 and 33 of the Constitution. 58 Section 13 of the Constitution. 59 Zimbabwe Homeless People's Federation and 7 Ors v Minister of Local Government and National Housing and 3 Ors (Civil Appeal SC 541 of 2019; SC 94 of 2020) [2020] ZWSC 94 (17 July 2020) para 8.
Apart from the National Objectives, the mandate of local authorities to pursue local sustainable development is evident from their co-responsibility for ensuring the progressive realisation of the socio-economic and environmental rights enunciated in the Constitution.
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60 See for example, ss 73(2), 75(4), 76(4) and 77(b) of the Constitution. 61 Section 81(1)(e) of the Constitution.
a clean and healthy environment,
62
62 Section 73 of the Constitution. 63 Section 77 of the Constitution. 64 Section 63 of the Constitution. 65 See paras 3-5 and 7 of CESCR 1990 https://www.refworld.org/ legal/general/cescr/1990/en/5613 (General Comment No 3). Also see ACHPR Principles and Guidelines 10, 13. 66 Sections 69(3) and 85 of the Constitution. 67 Section 68 of the Constitution. This right is governed in terms of the Administrative Justice Act [Chapter 10:28] 2004. 68 Section 67(1) of the Constitution. 69 Section 62 of the Constitution. This right is governed in terms of the Access to Information and Protection of Privacy Act [Chapter 10:27] 2002.
Besides the Constitution, the mandate of local authorities derived from framework local government legislation
70
70 See the Urban Councils Act [Chapter 29.15] 1996 (UCA) – a framework local government legislation which functions in tandem with the Regional Town and Country Planning Act [Chapter 29:12] 1976 as amended (RTCPA). 71 See ss 16, 23, 36, 43, 63 and 88 as well as the First and Second Schedules to the Housing Standards Control Act [Chapter 29:08] 1972. Also see Principles 33 and 63 of the National Housing Policy (2012) (NHP). 72 See ss 12(1), 64(1), 67 and 183 of the Water Act [Chapter 20:24] 1998. Also see Zimbabwe National Water Policy (2012) 16, 17. 73 See ss 4 and 39-52 of the Roads Act [Chapter 13:18] 2001; National Transport Policy (2012). 74 Section 8 of the Environmental Management Prohibition Access to Genetic Resources and Indigenous Genetic Resource-Based Knowledge Regulations, SI 61 of 2009 (hereinafter referred to as SI 61 of 2009). Also see the National Museums and Monuments Act [Chapter 25:11] 1972. 75 Waste and Solid Waste Disposal Regulations, SI 6 of 2007; Environmental Management (Environmental Impact Assessments and Ecosystems Protection) Regulations, SI 7 of 2007; National Environmental Policy and Strategies (2009). 76 Section 9(1) of the Civil Protection Act [Chapter 10:06] 1989; s 4(a) of the Roads Act [Chapter 13:18] 2001; s 12(1) of the Water Act [Chapter 20:24] 1998; National Climate Change Response Strategy (2014) (NCCRS) 145; National Climate Policy (2016) (NCP) 24; NHP para 62.
disasters,
77
77 See, for example, ss 11(1), 11(5) and 18(2)(c) of the Civil Protection Act [Chapter 10:06] 1989; also see the NCP 9-20. 78 See the NCCRS 100-130. Also see the NCP 9-20.
Although the constitutional, legislative and policy frameworks capture the mandate of local authorities piecemeal, they oblige and enable local authorities to provide city services critical to the pursuit of local sustainability as envisaged in terms of SDG 11. Since the ability of local authorities to discharge this mandate depends on their utilisation of different local governance tools, Part 5 below questions the extent to which the legal and policy frameworks in Zimbabwe empower urban local authorities to utilise spatial planning in pursuit of local sustainability, taking into consideration the generic factors discussed in Part 3 above.
5 Legal and policy framework for spatial planning in Zimbabwe
As noted in Part 3, the success of spatial planning depends largely on the existence of a solid and predictable long-term legal framework for urban development.
79
79 See Part 3; UN-Habitat International Guidelines 3. 80 Section 10(1) of RTCPA. Since RTCPA was inherited at independence in 1980 and has since then remained the primary tool governing planning in urban areas with no significant changes in 1996, it needs to be construed in line with the 2013 Constitution.
5.1 Flexible urban planning and design
Successful spatial planning requires that the legal framework for urban development should promote sound and flexible urban planning and design from vertical, horizontal and territorial perspectives.
81
81 See Part 3; UN-Habitat International Guidelines 3.
provide the basis of flexible urban planning and design, if one considers the two-tier planning system captured therein, with regional and master plans
82
82 Sections 14-16 and 20-21 of RTCPA. 83 Sections 17-21 of RTCPA. 84 Section 14(2)(a) of RTCPA. 85 See generally s 14 of RTCPA. 86 Chigara et al 2013 International Journal of Management and Social Sciences Research 33. 87 Section 14(2) of RTCPA. 88 Section 14 (2)(a) of RTCPA. 89 Section 14 (2)(b) of RTCPA. 90 Section 14(4) of RTCPA. 91 Section 14(5) of RTCPA.
In order to operationalise master plans, the RTCPA also authorises a local planning authority to keep under review at all times the desirability of preparing a local plan for any part of its area of jurisdiction.
92
92 Section 17(1) of RTCPA. 93 Sections 17(3)(c) and 17(4) of RTCPA. 94 Section 17(2) of RTCPA.
the manner in which these are to be treated.
95
95 Section 17(3)(b) of RTCPA. 96 Section 17(3) of RTCPA. 97 Section 17(5) of RTCPA.
In the light of the above, local authorities are required in terms of the RTCPA to adopt and implement master plans
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98 Sections 14-16 and 20-21 of RTCPA. 99 Sections 17-21 of RTCPA.
5.1.1 Horizontal integration
As noted in Part 3 above, horizontal integration requires coordination in the formulation and implementation of spatial plans across different sectors/departments of a local government.
100
100 See Part 3; Gupta and Nilsson "Toward a Multi-Level Action Framework" 275-281.
In the housing sector, local authorities in Zimbabwe have a combined responsibility, together with the other tiers of government, to contribute towards ensuring that people have access to adequate housing.
101
101 Sections 28 and 81 of the Constitution; s 205(1)(b) of the UCA; Housing Standards Control Act [Chapter 29:08] 1972; NHP.
responsibility must be fulfilled on a progressive basis through planning for and coordinating appropriate housing development in the authorities’ areas of jurisdiction.
102
102 NHP para 66. 103 NHP para 42 and Principles 33:5 and 33:6. 104 Sections 16, 23(b) and 88 and the First Schedule to the Housing Standards Control Act [Chapter 29:08] 1972. 105 Sections 36, 43, 88 and the Second Schedule to the Housing Standards Control Act [Chapter 29:08] 1972. 106 Sections 52 and 88 of the Housing Standards Control Act [Chapter 29:08] 1972. 107 For example, in 2015 government, through the Urban Development Corporation, began a process of regularising Caledonia – perhaps the largest informal settlement within City of Harare boundaries. The regularisation approved layout plans for phases 4-20 and regularised 27,000 houses with about 90% of the structures being completed houses. Muchadenyika and Williams 2017 Cities 38. 108 A high-profile example is when urban local authorities across the country, with the supervision of the national government, launched a blanket enforcement of planning laws and spatial plans through Operation Murambatsvina/Restore Order in order to restore the form and structure of cities, which had significantly changed as if there was no planning at all. It is regrettable to note, however, that about 700,000 people either lost their homes, their source of livelihood or both; with a further 2.4 million people or 18% of the Zimbabwean population affected at varying degrees. For details on this Operation, see Chitimira 2017 J Afr L 178-179; Muchadenyika and Williams 2017 Cities 37; Ndhlovu Protection of Socio-Economic Rights in Zimbabwe 3-4. 109 Muchadenyika and Williams 2017 Cities 37; Republic of Zimbabwe 2015 https://habitat3.org/wp-content/uploads/Republic-of-Zimbabwe-Country-Report-Habitat_2.pdf 39.
Regarding land-use, local authorities are given development control powers
110
110 Part V of RTCPA. 111 Sections 31-33 of RTCPA.
acquisition, disposal,
112
112 Part VII of RTCPA. 113 Part VI of RTCPA. 114 Section 39(1) of RTCPA. 115 Paragraph 588 of the Republic of Zimbabwe 2020 http://www.veritaszim.net/sites/veritas_d/files/NDS.pdf (the National Development Strategy); NHP para 42. 116 National Development Strategy para 599. 117 NCCRS 115, 137. 118 NCCRS 49. 119 Chitungwiza-Seke Combination Concept Plan (2015). 120 Toriro 2021 Journal of Urban Systems and Innovations for Resilience in Zimbabwe 144-145.
In terms of the transport sector, local authorities have a specific mandate to plan, design, construct, maintain, rehabilitate and manage roads in their respective areas of jurisdiction as part of their mandate to provide public transport and ensure road safety.
121
121 Section 4(a) of the Roads Act [Chapter 13:18] 2001.
by local authorities should include measures for the movement of traffic.
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122 Sections 14(2)(a)(iv) and 17(3)(iii) of RTCPA. 123 Section 196(2) of the UCA. 124 Section 4(g) of the Roads Act [Chapter 13:18] 2001. 125 NCCRS 115, 137.
In the cultural dimension, the master and local plans adopted by local authorities should seek to improve the facilities or amenities available to the public in connection with any land or thing under the control of the local authority, which may be a monument or national monument or relic in terms of the National Museums and Monuments Act.
126
126 Paragraph 53(2) of the Second Schedule to the UCA. 127 Sections 14(2)(a)(ii) and 17(3)(ii) of RTCPA. 128 Paragraphs 38(a) and 53(1) of the Second Schedule to the UCA; s 16(3) of the Constitution. 129 Section 16(2) of the Constitution.
In the environmental dimension, the Zimbabwean legal framework for planning obliges and enables local authorities to reduce the environmental impact of cities. For instance, in cases where activities such as housing developments, the provision of water supply, the development of tourist-resorts and other recreational facilities, and the establishment of waste treatment and disposal plants
130
130 Sections 97-108, as well as the First Schedule, to the Environmental Management Act [Chapter 20:27] 2002. 131 Environmental Management Act [Chapter 20:27] 2002 (EMA). Part Three of Environmental Management (Environmental Impact Assessments and Ecosystems
Protection) Regulations, SI 7 of 2007 specifies how EIAs are conducted in Zimbabwe.
authorities should make sure that such an EIA is conducted in order to ensure that the development project complies with the local vision for the sustainable use of land and environmentally sensitive areas as stipulated in their master plans or local plans. In the light of the above, the significance of EIA requirements to the realisation of all SDG 11 targets cannot be questioned as it helps in identifying which policies or actions are going to realistically achieve the desired sustainability objectives as well as highlighting where trade-offs and countermeasures may be required during the development planning.
Apart from the above, local authorities have very specific planning responsibilities with regard to waste management in Zimbabwe. The RTCPA identifies refuse or waste disposal
132
132 Section 22(1) of RTCPA. 133 Part V of RTCPA. 134 Section 12(2) of SI 6 of 2007. 135 Section 12(1) and 12(2) of SI 6 of 2007. 136 Section 24 of RTCPA 137 Section 26(5) and 26(6) of RTCPA. 138 Section 26(6) of RTCPA. 139 Section 73 of the Constitution.
to reduce the adverse per capita environmental impact of cities, specifically in terms of municipal solid waste management.
With the above in mind, there is no doubt about the potential of master plans and local plans to promote compactness and mixed land-use. Since the areas of focus of these plans transcend different sectors, such as the environment, roads, traffic, cultural and natural heritage, there is a need for the responsible departments to consider and balance the sector-specific and local area-specific needs in planning processes and encapsulate them in the goals, targets and strategies of local authorities. By integrating sector-specific needs that speak to the socio-economic, environmental and cultural rights entitlements in the planning and implementation of local and master plans, local authorities would improve the relevance of their plans to the objectives envisaged in SDG 11 in their areas of jurisdiction.
5.1.2 Territorial integration
As indicated in Part 3 above, territorial integration is important in the spatial planning process.
140
140 UN-Habitat International Guidelines 1-40; Kanuri et al Getting Started with the SDGs in Cities 72. 141 See s 5(c)(ii) of the Constitution; ss 6 and 7 of the Rural District Councils Act [Chapter 29:13] 1998; s 4 of the UCA. 142 See para 40 of the NHP. 143 Combined Harare Residents Association Green Paper on Zimbabwe's Local Government 14; Office of the Auditor-General 2019 https://www.veritaszim.net/sites/veritas_d/files/AGs%20Report%20on%20Local%20Authorities%202018.pdf iv. 144 Section 4 of the UCA. 145 Harare, Bulawayo, Gweru, Mutare, Kwekwe, Kadoma and Masvingo. 146 Kariba, Victoria Falls, Gwanda, Chitungwiza, Redcliff, Marondera, Bindura, Chegutu and Chinhoyi. 147 They include Karoi, Chipinge, Gokwe, Plum Tree, Norton, Lupane, Zvishavane, Rusape, Shurugwi, Chiredzi and Beitbridge. 148 They include Ruwa, Chirundu, Epworth and Hwange. 149 Sections 13(1) and 13(2) of the Constitution.
councils may cooperate with urban, peri-urban and rural areas, based on their common local contexts, in designing and implementing economic, social, cultural and environmental plans that seek to equitably distribute the costs, benefits and opportunities of urban development and particularly to promote social inclusion and cohesion.
150
150 Section 298(1)(c) of the Constitution. Also see Principle 6(a) of UN-Habitat International Guidelines.
In the same vein, section 10 of the RTCPA authorises two or more local authorities to combine their spatial plans on such terms and conditions as may be agreed between them for the purposes of discharging their duties. In addition, before preparing any master plan or local plan, every local authority is obliged in terms of the RTCPA to undertake a study of the planning area and, to the extent it considers necessary, of any neighbouring area in order to determine any factors that are likely to affect its planning or development.
151
151 Section 13(1)(a) of RTCPA. 152 Section 13(2) of RTCPA. 153 These included local authorities governing the adjacent areas of Goromonzi, Chitungwiza, Seke Beatrice Mazowe and Zvimba. Harare Combination Master Plan (1993).
5.1.3 Vertical integration
As noted in Part 3 above, by promoting vertical integration local authorities would enhance the potential of spatial planning.
154
154 Chigwata, Muchapondwa and De Visser 2017 J Afr L 44; Chigwata and Ziswa 2018 HJRL 311-312.
good balance in the development of rural and urban areas.
155
155 Sections 13(1) and 13(2) of the Constitution; s 17(4) of RTCPA. 156 Section 17(4) of RTCPA. 157 Sections 16(4) and 19(5) of RTCPA. 158 Chirisa 2014 Consilience 6; Kamete 2009 Urban Studies Journal Limited 906. 159 Section 20(1)(b) of RTCPA. 160 Subject to the Constitution and any legislation, local authorities have the right in terms of this section to govern, on their own initiative, the local affairs of the people within their areas of jurisdiction.
5.2 Public participation
Public participation, which is one of the constitutive elements of good urban governance, is important for spatial planning.
161
161 See Part 3 above. Also see UN-Habitat International Guidelines 8, 9. Virtudes 2016 Procedia Engineering 1711; International Council for Local Environmental Initiatives Local Agenda 21 Planning Guide 80; and SDG 11 (Targets 11.1; 11.2 and 11.7). 162 Section 67(2) of the Constitution. 163 Section 15 of RTCPA.
there is adequate consultation in connection with the matters proposed to be included in a local or master plan.
164
164 Sections 15(1) and 18(1) of RTCPA. 165 Section 7(c) of the Constitution. 166 Sections 20 and 80 of the Constitution. 167 Sections 19 and 81 of the Constitution. 168 Section 20 of the Constitution. 169 Sections 21 and 82 of the Constitution. 170 Sections 21, 22, 82 and 83 of the Constitution.
Secondly, after adopting a master or local plan, but before submitting it to the Minister for consideration,
171
171 Sections 16(1) and 18(2)(a) of RTCPA. 172 Sections 15(2)(a), 15(2)(b), 18(2)(b) and 18(2)(c) of RTCPA. 173 Also see SDG 11 (Target 11.3).
Despite the above obligations, it is regrettable to note that public participation is not effective in Zimbabwe.
174
174 Masvaure 2016 Urban Forum 447-463; Chikerema 2013 Journal of Humanity and Social Science 88. 175 The plan covers an area approximately two kilometres from the Enterprise Road along the whole stretch of the Enterprise Road from Eastlea, through Highlands up to the north-eastern end of Harare City. It seeks to introduce several non-residential uses (offices and other commercial uses) along this corridor, that was previously largely residential in character. Harare Enterprise Corridor Local Development Plan (2020). 176 For details, see Toriro 2021 Journal of Urban Systems and Innovations for Resilience in Zimbabwe 139-141. 177 Masvaure 2016 Urban Forum 447-463; Chikerema 2013 Journal of Humanity and Social Science 88.
other effective means of participating in local governance. This means that citizens cannot generally influence spatial planning in Zimbabwe.
5.3 Financial resources
It was noted in Part 3 above that the successful execution of the spatial planning function also depends on whether a local authority has the requisite fiscal resources.
178
178 UN-Habitat International Guidelines 3; UN-Habitat Habitat III Issue Paper 8 7, 8. 179 Section 14(3)(b)(v) of RTCPA. 180 Section 276(2)(b) of the Constitution. 181 See for example ss 218, 159, 179, 173, 174, 178, 152, 269 and 272 of the UCA. Also see the Second Schedule to the UCA. For details on these sources of revenue, see Chigwata "Fiscal Decentralisation" 218-240. 182 Republic of Zimbabwe 2020 http://zimbabwe.un.org/en/159037-zimbabwe-sdgs-review-progress-report; Chigwata "Fiscal Decentralisation" 226. 183 Section 301(1) of the Constitution. 184 Ministry of Finance 2021 http://www.zimra.co.zw/downloads/category/18-government-gazettes?downloads=1756:2022-national-budget-statement-25-nov-21.pdf paras 342 and 349. (hereafter Ministry of Finance 2022 National Budget Statement). 185 Ministry of Finance 2022 National Budget Statement paras 134 and 538. 186 Ministry of Finance 2022 National Budget Statement para 26.
community
187
187 SDG 11 (Target 11.c). 188 Masekesa 2021 PELJ 1-43. 189 SDG 11 (Targets 11.3, 11.4 and 11.a). 190 The Auditor-General noted with concern that Gweru City Council was also unable to provide layout plans for stands sold during the 2018 financial year. Office of the Auditor-General 2019 https://www.veritaszim.net/sites/veritas_d/files/AGs%20Report%20on%20Local%20Authorities%202018.pdf v. Also see Norton Town Council Strategic Plan (2019-2023) (2019) 15, 17; City of Harare Results-Based Strategic Plan (2017-2020) (2017) 27, 29, 43; City of Bulawayo Corporate Strategy (2020-2024) (2020) para 4.1. 191 Sections 9 and 265(1)(a) of the Constitution.
5.4 Political will
Political and managerial commitment was identified in Part 3 above as a crucial success factor for spatial planning.
192
192 UN-Habitat International Guidelines 3. 193 Section 11(1) of RTCPA. 194 Section 20(1)(a) of RTCPA. 195 See Part 5.1.1. 196 For details, see Toriro 2021 Journal of Urban Systems and Innovations for Resilience in Zimbabwe 142-143.
of the RTCPA.
197
197 Section 20(1) of RTCPA. 198 Toriro 2021 Journal of Urban Systems and Innovations for Resilience in Zimbabwe 143.
5.5 Legal effect of spatial plans
For the draft master or local plan to become a legal document, the Minister must formally approve it.
199
199 Sections 16(4) and 19(5) of RTCPA. 200 Sections 14(2), 17(3) and 19(4) of RTCPA. In terms of s 2 of this Act, "planning area" means the area for which a regional plan, master plan or local plan is being or has been prepared. 201 Section 21 of RTCPA. 202 Section 21(1) of RTCPA. 203 Section 21(2) of RTCPA. 204 Part X of RTCPA. 205 Section 11 of RTCPA.
guaranteed in the Constitution.
206
206 Sections 69(3) and 85 of the Constitution. 207 Part VIII of RTCPA.
Moreover, where SDG 11 targets have been mainstreamed into a spatial plan, a local authority must pursue such targets in a manner that is consistent with the content of the respective spatial plan and may not deviate from it. When physical developments in urban local authorities do not conform to the land use requirements in a master plan, the respective urban local authorities can exercise their development control powers in order to ensure compliance. These development control powers include: powers for enforcing legal compliance where an authority considers that there is illegal development taking place;
208
208 Section 32 of RTCPA. 209 Section 33 of RTCPA. 210 Section 30 of RTCPA. 211 Section 31 of RTCPA.
It goes without saying that spatial plans are dynamic, since a local authority is obliged in terms of the RTCPA to alter, repeal or replace plans if it is discovered that the assumptions upon which they were based are no longer valid.
212
212 Section 20(1) of RTCPA.
6 Conclusion
The international community acknowledges cities as essential drivers of sustainable development as is shown by the inclusion of a stand-alone goal for cities in the 2030 Agenda. In Zimbabwe, as elsewhere, a sub-national scale of intervention at the core of SDG 11 is critical if by 2030 its cities are to meaningfully address a wide range of sustainability challenges in the areas of housing, land use, access to water, roads, traffic and culture, to address climate change and to plan for the mitigation of local disasters, for example. Although there is no piece of legislation or policy containing a coherent set of principles for the transition of cities to a sustainable future,
as expected in terms of SDG 11, there are synergies and interactions that can be drawn between the rights-based constitutional duties of local authorities in the country and their express mandate in national legislation, on the one hand, and planning for the sustainable cities envisioned by SDG 11, on the other hand. Cognisant of the many local governance tools that are at the disposal of local authorities, this article has analysed the extent to which the legal and policy frameworks for spatial planning in Zimbabwe enable cities to use this tool to pursue the vision encapsulated in SDG 11. In order to achieve this objective the article has distilled spatial planning benchmarks from scholarly literature and international best practice and used them to test Zimbabwean planning laws and policies. In terms of this assessment, it has generally been established that the Constitution and the Regional Town and Country Planning Act [Chapter 29:12] 1976 sufficiently make provision for some of the key features required for effective spatial planning at the local level. This article has argued that although the existing legal framework makes adequate provision for features that could hypothetically guide cities to use spatial planning to pursue the vision envisaged in SDG 11 in Zimbabwe, their potential is constrained by diverse factors such as the lack of effective public participation in local governance, the inability of local authorities to generate sufficient revenue, systemic corruption in spatial planning processes, and the under-utilisation of the flexible and accommodating legal framework. Some local authorities in Zimbabwe continue to use outdated spatial plans that do not reflect the current reality in their jurisdictions. Without adequately addressing these challenges, the ability of such local authorities to utilise the legal framework regulating spatial planning to drive the ideals encapsulated in SDG 11 is severely constrained.
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List of Abbreviations
ACHPR |
African Commission on Human and |
---|---|
AHRLJ |
African Human Rights Law Journal |
CESCR |
Committee on Economic, Social and Cultural Rights |
CSOs |
civil society organisations |
DRR |
disaster risk reduction |
EIA |
Environmental Impact Assessment |
EMA |
Environmental Management Act [Chapter 20:27] 2002 |
HJRL |
Hague Journal on Rule Law |
J Afr L |
Journal of African Law |
LDD |
Law, Democracy and Development |
NANGO |
National Association of Non-Governmental Organisations |
---|---|
NCP |
National Climate Policy (2016) |
NCCRS |
National Climate Change Response Strategy (2014) |
NDP |
National Development Plan |
NHP |
National Housing Policy (2012) |
NUA |
New Urban Agenda |
OECD |
Organisation for Economic Co-operation and Development |
PDP |
Provincial Development Plan |
PELJ |
Potchefstroom Electronic Law Journal |
RTCPA |
Regional Town and Country Planning Act [Chapter 29:12] 1976 |
SDG |
Sustainable Development Goal |
SI |
Statutory Instrument |
UCA |
Urban Councils Act [Chapter 29.15] 1996 |
UN |
United Nations |
UN-Habitat |
United Nations Human Settlements Programme |
UNEP |
United Nations Environment Programme |