Vanuatu Sessional Legislation
Commencement: 07 October 1997
REPUBLIC OF VANUATU
DECENTRALIZATION AND LOCAL GOVERNMENT REGIONS
NO. 13 OF 1997
Arrangement of Sections
1. Replacement of title to Act No. 1 of 1994
2. Replacement of section 1 of Act No. 1 of 1994
3. Repeal of section 2
4. Insertion of new sections 4A, 4B, 4C
5. Repeal of section 6
6. Amendment of section 8
7. Amendment of section 15
8. Repeal of section 19
9. Insertion of new Part IIIA
10. Insertion of new Parts after Part IIIA
11. Amendment of section 20
12. Amendment of section 23
13. Repeal of section 25
14. Insertion of new sections after section 27
15. Repeal of section 28
16. Insertion of new Part VIIA
REPUBLIC OF VANUATU
DECENTRALIZATION AND LOCAL GOVERNMENT REGIONS
NO. 13 OF 1997
An Act to amend the Decentralization and Local Government Regions Act No. 1 of 1994.
BE IT ENACTED by the President and Parliament as follows: -
REPLACEMENT OF TITLE TO ACT NO. 1 OF 1994
REPLACEMENT OF SECTION 1 OF ACT NO. 1 OF 1994
(1) In this Act, unless the context otherwise requires: -
"by-law" means a by-law made by each local government council under the provisions of this Act;
"local government council" means a Council established under section 4 comprising representatives of each local government region;
"local government region" means a region declared under section 3(1)(a);
"Local Government Region Executive Officer" means an officer appointed under section 19 of this Act;
"Minister" means the Minister for the time being responsible for local government or any Minister acting on his behalf;
"Secretary" means the public servant seconded to a local government council under section 18E."
"Accountant" means the Public Servant seconded to a local government council under section 18F."
REPEAL OF SECTION 2
3. Section 2 of the principal Act is repealed.
INSERTION OF NEW SECTIONS 4A, 4B, 4C
"DIVISION OF LOCAL GOVERNMENT REGION INTO AREA COUNCIL DIVISIONS"
4A. The Minister on the advise of each local government Council shall by order divide a local government region into area council divisions or districts and may alter those divisions or districts.
LOCAL GOVERNMENT COUNCILS TO BE BODIES CORPORATE
4B. A local government council shall be a body corporate with perpetual succession and power to: -
(a) sue and be sued in its corporate name; and
(b) purchase, acquire, hold, manage and dispose of movable and immovable property.
4C. Each local government council shall have a seal of a design approved by such local government council which shall be kept in the custody of the Secretary to the local government council."
REPEAL OF SECTION 6
5. Section 6 of the principal Act is repealed.
AMENDMENT OF SECTION 8
6. Section 8 of the principal Act is amended: -
(a) in subsection (2) by deleting the words "forty five days' and substituting the words "twenty one days"
(b) in subsection (3) by deleting the words "sixty days" and substituting the words "twenty one days"
(c) by repealing subsection (8)
AMENDMENT OF SECTION 14
REPEAL OF SECTION 19
8. Section 19 of the principal Act is repealed.
INSERT ION OF NEW PART IIIA
9. After Part III of the principal Act insert the following new part: -
TERM OF OFFICE OF MEMBERS
OF LOCAL GOVERNMENT COUNCILS
TERM OF OFFICE OF MEMBERS OF LOCAL GOVERNMENT COUNCILS AND ELECTIONS THERETO
18A. (1) Members of local government councils shall be elected or appointed as the case may be for a period of 4 years and together with any councillor elected or appointed to fill a vacancy shall retire together at the end of the period.
(2) Subject to subsection (3), the number of elected members in each local government council region shall be such that each member shall represent not less than a population of 1,500 people in the region.
(3) The Minister may prescribe the number of persons who may be elected as members of a Council whose membership based on the rule in subsection (2), will no exceeds 10.
(4) Subject to the provisions of the Constitution and this Act, the Electoral Commission may by Order provide for the regulation and conduct of elections to be held under the provisions of this Act and, without prejudice to the generality of the foregoing, may provide for the regulation and conduct of elections to be held under the provisions of Act and, without prejudice to the generality of the foregoing, may provide for -
(a) the date for election of elected members of a local government council. If the Electoral Commission fails to fix such date the election shall take place on a date that is 1 calendar month before the end of the term of office of the members presently in office. If the date is a Saturday, Sunday or public holiday the election shall take place on the next preceding day that is not one of those days;
(b) the qualifications and disqualifications of electors;
(c) the registration of electors in any local government region or in any area council division;
(d) the ascertainment of the qualifications and disqualifications of candidates for election as members of local government councils;
(e) the method of making and disposing of claims or objections in connection with the registration of electors;
(f) the procedure for the nomination of candidates for election as members of local government councils;
(g) the method of election in any local government region;
(h) the determination of any question which may arise whether any person has been elected as a member of a local government council;
(i) the nature of corrupt and illegal practices in connection with elections and penalties in relation thereto:
Provided that no penalty prescribed by any Order made under this paragraph shall exceed imprisonment for a period of 5 years or a fine of VT100,000 or to both such imprisonment and fine;
(j) such forms as the Commission may consider necessary to be used in connection with elections.
(5) Election of members of local government Councils under this Act shall be on the basis of direct universal franchise which shall include an element of proportional representation.
DISQUALIFICATION FOR ELECTION OR APPOINTMENT AS MEMBER OF LOCAL GOVERNMENT COUNCIL
18B. (1) The following persons shall not be qualified for election or appointment as members of local government councils -
(a) the President;
(b) Judges and Magistrates;
(c) members of Parliament;
(d) members of the police force;
(e) members of the National Council of Chiefs;
(f) public servants;
(g) members of the teaching service;
(h) a person who is in the service of the local government council; and
(i) a municipal councillor.
(2) Any member of the district council of chiefs, island council of chiefs and area council of chiefs who holds the position of chairman, vice-chairman, secretary or treasurer, shall not be qualified for election as a member of a local government council.
(3) A council member shall vacate his seat if any circumstances arise that, if he were not a member of the council would cause him to be disqualified from election or appointment as such.
VACATION OF OFFICE
18C. If any member of a local government council -
(a) is found to have been unqualified or disqualified for election or appointment to a local government council;
(b) does, or permits or suffers any act, matter or thing which would, under the provisions of section 18B disqualify him for appointment or election;
(c) resigns from the local government council;
(d) fails to attend 3 consecutive meetings of the local government council or of any committee of the local government council of which he is a member, unless he has obtained the prior permission of the local government council to absent himself throughout such period,
he shall cease to hold office.
FILING OF VACANCIES
18D. (1) Whenever a vacancy occurs in the office of an elected member of a council such vacancy shall be filled in accordance with Orders made under the provisions of section 18A.
(2) Notwithstanding the provisions of subsection (1), if -
- (a) a vacancy occurs in the office of a councillor within 6 months preceding the date on which such councillor would ordinarily retire;
- (b) the total of unfilled vacancies does not exceed a third of the total number of councillors; and
- (c) no local council division will thereby be unrepresented;
such vacancy shall not be filled under the provisions of this section and such vacancy shall remain unfilled until the time of the next ordinary election.
(3) A person elected under the provisions of this section to fill a vacancy shall hold office until the date upon which the person in whose place he is elected would ordinarily have retired, and he shall then retire.
(4) Whenever there is a vacancy in the office of an appointed member of a local government council the Minister shall appoint another person to fill that vacancy in accordance with subsection (3)."
INSERTION OF NEW PARTS AFTER PART IIIA
OFFICERS AND STAFF
SECRETARY TO LOCAL GOVERNMENT
18E. (1) The Public Service Commission shall appoint a fit person, who is a public servant, to be Secretary for each Local Government Council.
(2) The Secretary shall be the Chief Executive Officer of the local government council for which he is appointed and shall have the charge and custody of and be responsible for all books, records and other documents of the local government council.
(3) For the avoidance of doubt, no local government council shall have power to suspend or dismiss the Secretary.
ACCOUNTANT TO LOCAL GOVERNMENT
18F. (1) The Public Service Commission shall appoint a fit person, who is a public servant, to be accountant for each local government council.
(2) For the avoidance of doubt, no local government Council shall have power to suspend or dismiss the accountant.
TREASURER AND OTHER OFFICERS
18G. (1) Subject to subsection (3), a local government council shall appoint a treasurer.
(2) A local government council may appoint such other officers, as it may consider necessary for the proper performance of its functions, upon such terms and conditions as it may determine and may define the powers and duties of such officers.
(3) Until such time as the Minister is satisfied that suitable persons are otherwise available the treasurer and such other officers as he may consider necessary shall be seconded to a local government council from the public service.
POWER TO ENGAGE STAFF
18H. Subject to section 18G(3), a local government council may from time to time employ, on such terms and conditions as it may determine, such agents, servants and workmen as may be necessary for the proper performance of its
18I. (1) A local government council shall make staff regulations, which, subject to the provisions of this Act, may make provision for all or any of the following matters relating to persons in the service of the council other than persons seconded to it -
(a) grades and salary scales;
(b) appointments, promotions, leave, termination of appointments and dismissals;
(c) maintenance of discipline;
(d) disciplinary offences;
(e) interdiction and payment of salary or wages during any period of interdiction;
(f) punishments in respect of disciplinary offences including the withholding or deferment of increments, fines, reductions in rank or salary and deductions from salary in respect of damage to property of the local government council by reason of misconduct or breach of duty by an officer, servant or employee;
(h) payment of allowances; and
(i) terms and conditions of service generally including matters relating to procedures and the duties and responsibilities of officers, servants and employees.
(2) Staff regulations made under the provisions of subsection (1) shall be published in the Gazette.
POWERS AND DUTIES OF COUNCILS
GENERAL POWERS AND DUTIES OF COUNCILS
18J. (1) Every local government council shall be generally responsible for the good government of its local government region and shall do all such things as it lawfully may and as it considers expedient to promote the health and welfare of the people therein.
(2) The provisions of this Act relating to the powers and duties of local government councils are in addition to, and not in derogation of, the provisions of any other written law relating to such powers and duties and in the exercise of their powers and the performance of their duties in relation to any matter for which provisions is made by other law, a local government council shall ac tin conformity therewith.
18K. (1) Subject to the provisions of subsection (2), to any order made under section 35 and to any conditions or limitations imposed by its Standing Orders, a local government council may enter into contracts for the purpose of any works, services or other matters which it is required or empowered to undertake, carry out and manage.
(2) Except as may be permitted to its Standing Orders, a local government council shall not enter into any contract -
(a) for the supply of goods or materials; or
(b) for the execution of any works or provision of any services, other than professional services to or for the local government council;
except after publicly calling for tenders for the same.
(3) A contract purporting to be made by a local government council which is -
(a) sealed with the seal of a local government;
(b) signed by an officer of the local government council duty authorized in that behalf by any resolution or standing order of the local government council,
shall not be invalid by reason only of any failure to observe any Standing Order made under the provisions of this Act.
ENQUIRIES AND SUSPENSION
INQUIRIES AND SUSPENSION
18L. (1) If the Minister -
(a) has cause to suspect that a local government council has failed to observe and perform any of the duties and powers conferred or imposed upon it by the provisions o this Act or any other law; or
(b) has cause to suspect that a local government council has done or performed any act, matter, or thing without due authority; or
(c) is otherwise of the opinion that an investigation should be made into the affairs of a local government council;
he may in his discretion, appoint a person or persons to inquire in to such matter.
(2) If upon an inquiry under this section the Minister is satisfied that the local government council has done or suffered any of the act, matter or thing contained in paragraphs (a) and (b) of subsection (1), he may by directive in writing require the council to remedy the same within such time as he may appoint.
(3) If a local government council fails to comply with the terms of a directive of the Minister made under subsection (2) or if the Minister, having appointed a person or persons to make an inquiry under subsection (1) considers it expedient so to do, the Minister may in addition to any other powers conferred upon him by the provisions of this Act -
- (a) suspend the exercise by the council of any of the powers conferred upon it by this or any other Act for such period as he may think fit; or
- (b) dissolve the council and, in his discretion, appoint or direct the election of new councillors;
and during such period, or, as the case may be, pending the appointment or election of new councillors, confer upon a public servant the exercise of any powers to suspended or of the powers of the council so dissolved.
(4) The expenses incidental to -
- (a) any inquiry under this section; or
- (b) the exercise of any of the powers of the council under this section;
shall be a debt due by the local government council to the Government and shall be paid and discharged out of the funds or revenues of the council in such matter as the Minister shall direct. Any such direction may include a direction that the expenses shall be deducted from any grant payable by the Government to the local government council.
REDUCTION OR REFUND OF GRANTS
18M. (1) If on receipt to the report of an auditor, or of an inspector appointed under the provisions of section 18L(1) the Minister is satisfied that any duty or power of a local government council is being exercised in an improper or inefficient manner the Minister may in respect of any such duty or power reduce or withhold any further grants to such council or any part of such grants until he is satisfied that the duty or power will be exercised in a proper manner.
(2) In any case where the Minister has reduced or withheld a further grant or part of such grant under the provisions of subsection (1) it shall be in the Minister's discretion at the time he restores the grant whether he restores any part of the grant that was reduced or withheld.
(3) The Minister before reducing of withholding a grant under subsection (1) shall give the local government council an opportunity of making representations to him why such grant should not be reduced or withheld."
AMENDMENT OF SECTION 20
11. Section 20 of the principal Act is amended by repealing subsection (7).
AMENDMENT OF SECTION 23
12. Section 23 of the principal Act is amended -
(a) in subsection (1) by deleting "2,500" and substituting "5,000";
(b) in subsection (3)(i) by deleting "VT10,000" and substituting "Vatu 30,000";
(c) in subsection (3)(ii) by deleting "VT5,000" and substituting "Vatu 20,000".
REPEAL OF SECTION 25
13. Section 25 of the principal Act is repealed.
INSERTION OF NEW SECTIONS AFTER SECTION 27
27A. The financial year of a local government council shall be a period of 12 calendar months commencing on 1 January.
LOCAL GOVERNMENT FUND
27B. There shall be for every local government council a fund to be called the "Local Government Fund".
PARTICULARS OF THE FUND
27C. The fund of a local government council shall consist of -
(a) all local taxes lawfully levied by the local government council;
(b) fees and charges payable in respect of licences and permits which have been lawfully issued or authorized for issue by the local government council, whether under this or any other Act;
(c) all other fees, charges, rents end dues payable to or recoverable by the local government council or to which the local government council is entitled under the provisions of this or any other law;
(d) all fines, penalties and forfeitures recovered by the Council under the provisions of this Act or any other written law or declared to form part of the revenues of or directed to be paid to the Council by the provisions of any written law;
(e) all charges or profits arising from any trade, service or undertaking carried on by the local government council in exercise of the powers vested in it;
(f) interests on moneys invested by the local government council, except where other provision is made in respect thereof under the provisions of this or any other law;
(g) grants paid by the Government under sections 26 and 27;
(h) all rents from lands leased by the local government council;
(i) such other revenues as the Minister responsible for finance may declare in writing to be revenues for the purposes of this section;
(j) all moneys received by way of a duly authorized loan;
(k) gifts and legacies;
(l) proceeds from the sale of local government council property;
(m) any other unusual or temporary income.
27D. A local government council may, subject to the provisions of this or any other law, expend moneys in the proper exercise of its duties and powers and in the proper performance of matters necessarily incidental thereto or arising there from, and for the purpose of meeting its lawful debts and obligations.
POWER TO RAISE LOANS
27E. (1) A local government council may from time to time, -
(a) with the consent of the Minister responsible for finance;
(b) and with the approval of the Head of the Department of Finance, which approval may only be made on the Head being satisfied that a study has shown that the project for which the loan is being sought is viable.
raise loans by way of mortgage, issue of stock, or any other method, in such amounts not exceeding 100,000,000 Vatu (one hundred million) and on such conditions as the Minister responsible for finance in each case, may approve and all such loans shall be charged upon the revenues and assets of the local government council and shall rank equally without priority.
(2) Any financial liability to the Government lawfully incurred by a local government council for the purpose of acquiring any interest in land or any works, schemes, undertakings or assets from the Government, and not discharged by immediate payment, shall be deemed to be a loan granted by the Government.
27F. (1) There is hereby established a fund to be known as the "Trust Fund" for each Local Government Council.
(2) Not less than 5% of the National Government grant to each local government council each year shall be deposited in the Trust Fund.
(3) The purpose of the Trust Fund is to provide guarantee for loans provided for under section 27E.
(4) Interest accumulating from the Trust Fund shall be taken to be part of the Fund and shall not be used in any way whatsoever.
27G. (1) All moneys belonging to a Council shall be paid into such bank as the Council may from time to time appoint.
(2) Subject to the provisions of section 27H, all moneys paid by a Council shall be drawn from the Council's bank by cheque signed by -
(a) the Chairman; or
(b) the Deputy Chairman; or
(c) one councillor authorized in that behalf by the Council,
and counter signed by the Secretary.
27H. (1) A council may by resolution establish an imprest account which shall be kept at the bank at which the Local Government Fund account is kept.
(2) The imprest account shall be held jointly in the names of, and operated on by, the Secretary and the treasurer.
(3) The Council shall from time to time fix the maximum amount that may be held at any time in an imprest account.
(4) Moneys in the imprest account shall be available only for the payment of casual wages and for emergency expenditure.
(5) A statement of all payments made from the imprest account shall be submitted to the Council at its first ordinary meeting after such payments have been made.
ESTIMATE OF EXPENDITURE
27I. (1) Every local government council shall on or before the annual meeting to be held during the month of November in every year, prepare and approve an estimate of the income and expenditure of the council for the next succeeding year. Such estimate must comprise a balanced budget.
(2) Every local government council may at any time during the year for which an estimate has been made cause a revised or supplementary estimate to be prepared and, where appropriate submitted for approval.
(3) Re-appropriation of funds referred to in an estimate may be made from time to time with the approval of the council.
(4) No expenditure of a local government funds shall be incurred except by or under a law.
FAILURE TO APPROVE ESTIMATE OF EXPENDITURE
27J. Where a local government council's estimate of expenditure for its succeeding financial year remains not approved by 31 December the Minister with the approval of the Minister of Finance shall by order issue the draft estimate as the approved estimates of the local government council for its ensuing year.
27K. (1) The Secretary may by warrant under his hand authorize disbursement of monies forming part of the Local Government Fund for the purpose of making advances to officers of the local government council for such purposes and under such terms and conditions as may be prescribed in by-laws from time to time.
(2) No advances whatsoever shall be made by or to councillors of a local government council from the Local Government Fund or other funds."
REPEAL OF SECTION 28
15. Section 28 of the principal Act is repealed.
INSERTION OF NEW PART VIIA
16. After Part VII of the principal Act, insert the following new part -
ACCOUNTS AND AUDIT
28A. Every local government council shall -
(a) cause proper books and accounts to be kept and true regular records entered therein of all financial transactions of the local government council;
(b) have general account which shall be kept and credited with all moneys not required by this Act or otherwise to be carried to any other account and debited with expenditure in payment of the general debts and liabilities of the council which are not included in any special appropriation and of the general expenses incident to the administration of this Act and the affairs of the local government council;
(c) have separate accounts which shall be kept of all moneys raised or levied for or appropriated or allocated to or held in trust for any special purpose.
TRANSFER FROM GENERAL FUND TO MEET DEFICIENCIES
28B. If the balance in any of the separate accounts referred to in paragraph (c) of section 28A is at any time insufficient to met the lawful charges thereon, the council may, subject to the approval of the Minister, transfer such sums as are necessary from the general account to meet such charges and may at any time repay such advances out of any excess in the receipts over the liabilities of any such account, but no transfer shall be made from any one to any other of such separate accounts.
28C. (1) A local government council may subject to the approval of the Auditor General appoint a fit and proper person to be the auditor of the local government council at such rate of remuneration as the local government council may determine for the purpose of auditing and reporting on the accounts of the local government council.
(2) If the Auditor General so directs, a local government council shall reimburse to the Government such sum in respect of the Auditor General's expenses as the Minister may fix.
(3) A local government council shall -
(a) produce to the auditor within 3 months of the conclusion of the year to which they relate all the books and accounts of the local government council together with all deeds, contracts, documents, receipt relating thereto;
(b) permit the auditor to inspect all stores and other assets of the local government council as he may require; and
(c) give to the auditor such information, explanation and facilities as he may require to be given to enable him to perform the duties of an auditor.
(4) It shall be the duty of the auditor to report to a local government council not less than once in each year separately in respect of each of the following matters, that is to say, whether or not -
(a) he has obtained all such information, explanation and facilities as he may have required to be given to enable him to perform the duties of an auditor;
(b) the accounts of the local government council are in order and present a true view of the financial position of the local government council;
(c) separate accounts of all undertakings and other accounts required to be kept by the provisions of this Act have been kept;
(d) due provision has been made for redemption and repayment of all moneys borrowed by the local government council;
(e) due provision has been made for depreciation or renewal of the assets of the local government council.
(5) In addition to the report required under subsection (4) the auditor shall report to the Minister and to the local government council any matter or thing is discovered during the course of the audit and which appears to have been done or performed without due authority.
(6) The Secretary shall -
- (a) within 30 days of the receipt of the auditor's report on the accounts of the local government council for any year submit the accounts together with such report to the Minister; and
- (b) lay the accounts of the local government council for each year together with the auditor's port thereon before the local government council within 30 days of the receipt of such report or if the council is not sitting, at its next meeting.
POWERS OF AUDITOR TO REQUIRE PRODUCTION OF DOCUMENTS
28D. (1) For the purpose of any audit, an auditor may be notice in writing require any person holding or accountable for any books, records, accounts, vouchers, deeds, contracts or other documents which he may require for the purpose of such audit or examination to appeal before him at the time and place specified in the notice and to produce any such document as aforesaid for his inspection.
(2) Any such person who fails without reasonable cause to appear and produce any such documents when required so to do shall be guilty of an offence and shall be liable on conviction to a fine not exceeding 50,000 Vatu.
AUDITOR TO REPORT ERRORS AND DEFICIENCY
28E. If the auditor finds the account or statement submitted for audit to be erroneous of deficient in any particular, he shall -
(a) report thereon, and forward a copy of his report and findings, to the Minister; and
(b) forward a copy of his report by registered post to the Secretary
MATTERS REQUIRED TO BE MENTIONED IN REPORT
28F. The auditor shall, in respect of the accounts for the full financial year, satisfy himself -
(a) whether or not in his opinion -
(i) due provision has been made for the repayment of loans ;
(ii) the value of assets has so far as the auditor can judge, been in all cases fairly stated; -
(ii) due diligence and care has been shown in the collection and banking of income;
(iv) the expenditure incurred has been duly authorized, vouchered and supervised;
(v) any of the moneys or others properties of the council have been misappropriated or improperly or irregularly dealt with, and
(b) as to any other matters which in his judgment call for special notice or are prescribed.
AUDITOR MAY TAKE LEGAL ADVICE
28G. The auditor may at the expense of the council obtain and act upon legal opinion on a question arising in the course of an audit.
DESTRUCTION OF ANY BOOKS, ETC
28H. A local government council may, with approval of the auditor, destroy used or obsolete receipt books, bank pass books or statements, cheque books, registers, cash books and documents relating to the counts of the council if they have not been in use of more than six years
28I. An annual statement showing the financial position as regards the general and special accounts of the local government fund in a form approved by the Minister shall be prepared by each council on or before the 31st day of May in every year showing the assets and liabilities of the council on the 31st day of December immediately preceding and the income from all sources and expenditure during the immediately preceding years. This statement shall be audited and if found correct shall be certified by the auditor as correct and a copy thereof shall be displayed at the local government council office
17. This Act shall come into force on the date of its publication in the Gazette.