It is distressing to see that the constitutionally empowered local bodies have failed to emerge as strong and functional as the constitution envisaged. Now all eyes are on upcoming local polls slated for May 13. But it is hard to believe representatives elected from this election will fulfill their responsibilities of delivering on development and rule of law.
The constitution of Nepal, which entered into force on September 20, 2015, envisaged strong and committed local bodies to expedite infrastructural development, ensure administrative convenience, and address local concerns at the local level. The constitution not only granted powers to the executives of the local bodies to exercise executive functions but also empowered them to exercise judicial functions.
As a matter of fact, the local bodies have been provided executive, legislative and judicial powers. They can legislate laws in the matters relating to town police, cooperative institutions, operation of FM radios, management of local services and other items enumerated under Schedule 8 of the constitution.
The local bodies can adjudicate local disputes as well. Article 217 of the constitution envisages a three-member Judicial Committee to be coordinated by the Deputy Mayor in the case of the Municipality and by its Chairperson in the case of the rural municipality. The government of Nepal has adopted and enacted the Local Government Operation Act (2017) to ensure public participation, transparency, and accountability in the executive, legislative and judicial functions of the local governments. The preamble of the Act envisages that the local bodies will take steps for institutionalizing the fruits of democracy, inclusivity, sustainable development, rule of law and strengthening a socialism-based democratic system of governance from the very local level.
This Act aims to strengthen local participation in politics and national life. The law entrusts power to the Judicial Committee to adjudicate matters related to land encroachment, defamation, environmental pollution and other civil cases through mediation. They can also adjudicate criminal cases where the offenses are punishable with imprisonment for a term not extending to one year. The procedures laid down in the Act are much similar to that of the working of the courts. For instance, Sections 46 and 47 of the Act provide that, upon receiving a complaint from the plaintiff, the Judicial Committee will issue a summon in the name of the defendant and the defendant would have to present by self or through a legal representative with a written response to the plaintiff within the stipulated period of 15 days from the date of acknowledgment of the summon (so issued in his name). This arrangement has been made to promote the concept of fair trial and audi alteram partem (let the other side be heard as well).
The architects of the constitution envisaged strong and committed local bodies so that they could address the concerns of the rural and urban folks at their place without recourse to court and district administration office. However, available instances show that the local bodies have grossly failed to abide by the constitutional spirit. Corruption and misuse of power is what they have excelled at.
Misuse of power
Of late, the local bodies have become a safe haven for employing near and dear ones on a contractual basis. The local bodies have promoted employees against the directives issued by the Federal Affairs Ministry. For instance, the Mayor of Janakpurdham has arbitrarily promoted its officials. Section 7 of the Employees Adjustment Act (2018) prescribes that if a government servant has worked for five years or more, s/he would be adjusted to a rank higher by one level and if one has served less than five years one will get the benefit of two additional pay grades. For instance, if a person has worked as Section Officer (seventh level) under federal government for five years or more, s/he will be eligible to be adjusted to the eighth level under provincial and local bodies. And if s/he has worked less than five years and gets adjusted to provincial or local level, then s/he would get the benefit of two additional pay grades.
In addition to this, the majority of chiefs of local bodies were in the news for refusing to accept adjusted employees and Administrative Officers sent by the federal government. Their act of refusal to take them [employees] was a sheer violation of the law. In Madhesh, the Mayors have developed a general practice of providing seats to administrative officers who have the following qualifications: a) s/he is a ‘yes man’ of the Mayor, b) s/he should work in line with the idea and vision of the Mayor and c) s/he should not question the Mayor.
If the existing bad practices are to be repeated after the upcoming local elections as well, the local election itself will be meaningless for people.
In case an administrative officer endeavors to question the Mayor, then he would be disallowed to work in the office. These things have happened in several local bodies of Madhesh. The Mayors and rural municipality chiefs have never issued any notification as to on which ground the government employees, who were either adjusted or transferred by the Centre, were not allowed to work. Their decision to disallow them to function in office was simply an arbitrary exercise of power.
Strong mandates, poor implementation
The laws confer a wide range of powers on the local bodies. The Right to Free and Compulsory Education Act (2018) specifies the duty and responsibilities of the federal government, provincial governments and local bodies in providing free and compulsory education. The financial burden will be shared between the provincial and federal governments. The local bodies are mandated to play a constructive role in ensuring the admission of children. As per this Act, all the three-tier governments have to play a creative role in ensuring special education for disabled children or the children of the martyrs. The local bodies have to ensure basic level education for every child of the 4-13 age group.
Moreover, the local bodies have a legal duty to ensure a basic level of education for the persons who are the victims of natural calamities and accidents. The Act under Section 19 provisions that the persons who do not have basic education (up to grade eight) would not be eligible for any government or non-government jobs after April 13, 2028 (Baisakh 1, 2085 BS). So, are we prepared to ensure at least basic education for all by 2028? Or, will there be islands of unemployed youths at every local level?
Likewise, Section 41 of the Public Health Act (2018) directs the local bodies to ensure proper (disposal of) waste management and to act against pollution. This law explicitly suggests that the local bodies are duty-bound to ensure compliance of green laws and standards set for the protection of the natural environment. Local bodies have failed to abide by this law. Take the example of Janakpur. If this law had been effectuated in letter and spirit, Janakpur would have emerged as a clean green provincial capital city. Unfortunately, Janakpur is known for pollution and stranded pigs on the streets.
The local bodies have also been conferred the powers to issue identity cards to peasants. The Right to Food and Food Sovereignty Act (2018) under Section 14 directs the local bodies to issue identity cards to farmers and maintain a record of the same in their respective jurisdictions. However, this law remains only on paper.
The law obliges the local governments to generate employment opportunities at the local level. Section 10 of the Right to Employment Act (2018) envisages the establishment of an Employment Service Centre at every local level. Section 20 of this Act directs the federal, provincial, and local governments to implement schemes and training programs for generating job opportunities. This law is also limited on paper. If this law had been implemented, hundreds of thousands of youths would not have to fly to Gulf countries for menial jobs.
Political parties field women nominees just to meet constitutional obligations. They are mostly provided tickets for the post of Deputy Mayor. As a matter of fact, during the local elections of 2017, women comprised 94 percent of deputy mayor positions. The bitter reality is that the mayors never respect the ideas of deputy mayors who are mostly women. Women have been treated just like showpieces.
Given these disappointing facts, if similar practices are to be repeated after the upcoming local elections as well, the local election itself will be meaningless.
It is getting later for the local leaders to stand for a cause and take steps for the betterment of their place and their people.
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