FOR PRESENTATION TO THE WORKSHOP FOR THE MEMBERS OF PARLIAMENT ORGANISED BY THE ETHICS SECRETARIAT OF THE UNITED REPUBLIC
OF TANZANIA 27TH APRIL 2010 Page | 1
THE LEGAL FRAMEWORK FOR THE REGULATION OF PUBLIC ETHICS IN TANZANIA
Dr. R.W. Tenga , Advocate of the High Court of Tanzania & Senior Lecturer at the SCHOOL OF LAW (Formerly THE FACULTY OF LAW), UNIVERSITY OF DAR ES SALAAM 27/04/2010
THE LEGAL FRAMEWORK FOR THE REGULATION OF PUBLIC ETHICS IN TANZANIA: A REVIEW.
[By Ringo Tenga1]
0. An Introduction. This paper is a review of the legal framework for regulation of public ethics in Tanzania. It relies substantively on an earlier partial consultancy done for the Ethics Secretariat and CIDA of Canada which carried out a review of the PUBLIC LEADERSHIP CODE OF ETHICS ACT, CAP 398 [R.E. 2002] Both sponsors of that consultancy felt that the present Leadership Code of Ethics Act is in serious need of review and outlined a number of factors that have arisen since its enactment, and these factors include: The expanded mandate of the Ethics Secretariat in 2004 to cover not only public leaders but also middle level public servants; The establishment of six Ethics Secretariat Zonal Offices closer to stakeholders in executing Ethics Secretariat functions; A set of major public sector reform initiatives that have resulted in the enactment of new legislation such as the Commission for Human Rights and Good Governance Act (2001) and the Prevention and Combating of Corruption Act (2007); The enactment of the Public Sector Regulations in 2003 providing for a Code of Conduct for all civil servants; The enactment in 2000 of a Codes of Ethics for Local Government Councillors who are also covered under the Act; New strategies such as the National Strategy for Growth and Reduction of Poverty with good governance as one of the three clusters of the Strategy;
Dr. Ringo Tenga is a Senior Lecturer in the School of Law of Law University of Dar Es Salaam where he teaches, amongst other subjects, Legal Ethics. He has also lectured, part time, on Medical Ethics at the Muhimbili University of Medicine as well.
The introduction and adoption by the Government of the National Anti-Corruption Strategy Action Plan (NACSAP) as a strategic policy and action framework for preventing and combating corruption in the country for the period 2004-2011 thereby strengthening governance, transparency, accountability, integrity and efficiency and improved public delivery; Recent regulatory changes, in particular in the tendering and procurement area have been introduced and put into place mechanisms that address certain areas covered in the existing Act. The consultants were then mandated to review the provisions of Cap. 398, pointing out, among other things, its short comings, contradictions, conflicts and duplication, if any, with other legislation and some initial recommendation for remedies. In doing so we surveyed the various legislative schemes both within Tanzania and in other jurisdictions and benefited from the comparative exercise. In the present paper I am requested to give a general overview on regulation of ethical conduct of public leaders and articulate the various challenges public authorities face in doing so. The paper gives first a short historical background to the public ethics in Tanzania; second, it gives an Analysis of the various legislative schemes with emphasis on Cap.398; third, a brief comparative analysis of the existing strategies and policies; and, lastly, some tentative recommendations for reform.
1. THE DESIGN OF THE MODERN LIBERAL STATE AND THE PARADOX OF CORRUPTION. The modern democratic state in all its forms is the current bedrock of public leadership. The attributes of such leadership can only be grasped by understanding the design of the modern state. From Plato’s Republic, in ancient Greece, it is clear that public leaders are assumed to be people with special leadership acumen coupled with an unimpeachable character. For Plato leaders are the Guardians of the State and must be well educated and of high integrity, in short, ‘men of gold’. Plato
even assumed that such people should be celibate in order to devote most of their time to the complexities of the state. A similar perception of the qualities of public leadership resonates throughout history. In Roman times Cicero committed some of his most memorable writings to the qualities of a good leader. In his ‘De Officiis’ (On Duty) Cicero makes a contrast between duty and expedience. He argues a good leader is one imbued and guided by the moral dimension and not expedience. In the middle ages in Europe Machiavelli’s ‘The Prince’ is concerned with a public leader led by expedience and utility for the good of the State. But the classical design of the modern state is best defined through the work of 17th Century enlightenment philosophers in Europe from Bodin, Grotius, Hobbes Locke, Rousseau, Montesquieu, etc., who defined modern sovereignty and grounded it on the Social Contract. This representative democratic model and its structure required a definite form of leadership and accountability to the citizenry and defined what the best leader would be. It is Montesquieu who saw the need to regulate leadership through institutional arrangements that would “check” and “balance” state organs in such a way that democracy would not degenerate into despotism or dictatorship of individuals or oligarchs2. If leaders were not constrained by rules and institutions they would easily “capture the state”, as it were, and usurp its ‘ownership’ from the people. The consequence of this omnipresent threat led Montesquieu to design a state system that is both representative and based on the ‘Separation of Powers’ between the legislature, executive and judiciary as the basic pillars of state machinery. The ‘checks and balances’ that were in-built were the guarantee that a usurper would not hijack the state from its stakeholders - the citizenry. But Montesquieu understood that any creation of human beings has a beginning and an end, just like everything else that exists. One of the terminal diseases which was bound to effect his design of the state was the corruption phenomenon. That greed
Montesquieu, Baron Charles de THE SPIRIT OF THE LAWS, See Book VIII entitled ‘Of the Corruption of the Principles of the Three Governments’. Shows how DEMOCRACY, ARISTOCRACY and MONARCHY are destroyed ultimately by corruption.
and corruption would one day triumph over democracy is one of the most paradoxical prophecies of Montesquieu3. And true enough the modern state is bedevilled with the corruption phenomenon that has become the ‘social cancer’ of our times. The list of International Conventions and Organs that deal with corruption is illustrative. International NGO’s such as Transparency International are huge organizations with chapters in many countries all dealing with the issue of corruption. Municipal laws have also been developed in many countries to combat the phenomenon. Instead of diminishing after all this effort, corruption is increasing. Is the deterministic view of the designer of the modern state, Montesquieu, unstoppable?4 Or do we need today a redefinition of the State? These are the questions political scientists, sociologists and philosophers grapple with even today, but this paper is not essentially about that. What I am mandated to focus on is what the law does in restraining a Public leader from degenerating into a corrupt leader. So what is a good Public Leader? The question is ethical and attempts have been done to define the qualities of a Public leader. In 1995 the so – called Nolan Committee in United Kingdom outlined the ‘Seven Principles of Public life’5. These include: 1. SELFLESSNESS Holders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends. 2. INTEGRITY Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties. 3. OBJECTIVITY In carrying out public business, including making public appointments, awarding contracts, or
3 4 5
Althusser, Louis 'Politics and History: Montesquieu, Rousseau, Marx (Radical Thinkers)'.
See Bakunin, Bakunin ‘The Immorality of the State’. See Generally: http://www.public-standards.gov.uk/
recommending individuals for rewards and benefits, holders of public office should make choices on merit. 4. ACCOUNTABILITY Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. 5. OPENNESS Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. 6. HONESTY Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest. 7. LEADERSHIP Holders of public office should promote and support these principles by leadership and example. The Principles have been widely debated and we take them to be a good foundation for any analytical framework for the review of any systems or rules concerning the ethics of Public Leadership. In Tanzania concern to regulate Public Leadership has its roots in the British colonial administration and it is important to reflect in brief on the relevant legislative history. 2. LEGISLATIVE HISTORY OF THE REGULATION OF PUBLIC LEADERS ETHICS IN TANZANIA. Colonial Period The regulation of Public Leaders through institutions and rules has its roots in the colonial period. The Colonial government enacted the first anti-corruption legislation in the 1950s. This was known as the Prevention of Corruption Ordinance, Cap. 400, enacted in 1958.
Earlier the main legal framework for regulating Public Officials was through general penal provisions of bribery, forgery, and embezzlement sourced from the Indian Penal Code. These were of limited utility and Cap. 400 widened the net for covering corrupt acts by including amongst others, an offence where a Public Officer would have obtained “an advantage without lawful consideration or adequate consideration”, etc. Later in 1970 the Ordinance was amended to also cover the offence of “a public Officer being in possession of property corruptly obtained”.
Independence and After
After Independence in 1961 statecraft was left to African natives, as the British departed the new African leaders faced a challenge that was totally new to them. In an attempt to grapple with the leadership of a state many leaders equated the symbols or marks of leadership as synonymous with wealth. In order to march the cultural sophistication, modernity, grandiose, pomp and ceremony of the British master, conspicuous consumption within the leadership became the order of the day. Mwalimu Nyerere had to deal severely with cabinet ministers who took bribes flagrantly discrediting the Virtuous leadership he tried to inspire. Historians note that the craze to buy Mercedes-Benz cars by leaders in this period led the citizenry to refer to them as “Wabenzi”, - a new ‘tribe’ of public leaders whose distinctive status was based on wealth accumulated from public office. This was a clear indication that public leaders were becoming distant from the rest of the population and their ‘wealth’ was obviously not based upon salaries alone6. Nyerere’s first attempt at regulating the leadership was through the then Permanent Commission of Enquiry (PCE), recognized in the provisions of the Interim Constitution of United Republic of Tanzania of 1965. Later on, the PCE was established under its own statute7, and mandated specifically to inquire, when need arose, into the conduct of public leaders.
The era of TANU’s Leadership Code 1967 – 1995.
Pratt, Cranford. The Critical Phase in Tanzania 1945-1968: Nyerere and the Emergence of a Socialist Strategy (Cambridge U.P. 1976, reprinted 2009) 7 The Permanent Commission of Enquiry Act, 1966 (No.25 of 1966).
When the Arusha Declaration was announced in 1967 ushering in an era of “African Socialism” or Ujamaa, one of the critical documents of the time was a Leadership Code for the TANU Party leaders. Here we see an attempt to regulate Public Leaders not from restraining laws per se but through a code of honour. 8 A leader according to that code included: Members of TANU National Executive Committee Ministers in Government Members of Parliament Senior Officials of Organization Affiliated to TANU Senior Officials of Parastatals. Leaders appointed under the TANU Constitution Councillors of Local Government Civil Servants of high and middle calibre The definition of ‘a Leader’ included the spouse of such leader. The TANU Leadership Code had the following basic principles9: 1. 2. 3. 4. 5. Every TANU and Government leader must be either a Peasant or a Worker, and shall in no way be associated with the practices of Capitalism or Feudalism. No TANU or Government leader shall hold shares in any Company. No TANU or Government leader shall hold Directorship in any privately owned enterprises. No TANU or Government leader shall receive two or more salaries. No TANU or Government Leader shall own houses for rent.
The Code received legislative recognition in 1973 through the enactment of the Committee of the Enforcement of the Leadership Code Act 1973.10 Later in 1987 the Act was amended to give it broader coverage by applying it to Zanzibar and substituting CCM for TANU11 The Act’s intention was “to establish a committee for investigation into cases of breaches or suspected breaches of the Leadership Code by Public Officers” It was signed
Mashamba J. Clement When the Operation of the Law enhances Corruption in Tanzania: An Enigma in a Legal Regime Needing Reform [NOLA, 2004] 9 Mujumba, Philemon. 1999 ‘ The Efficacy of the Leadership Code of Ethics Act, 1995 in combating Corruption in Tanzania’ LLB research dissertation, Faculty of Law, University of Dar Es Salaam. 10 (Act No. 6 of 1973 – 1st May, 1973). 11 Act No. 5 of 1987
into law by President Nyerere on 30th of April, 1974.12 Section 2 the Act defines “the Leadership Code” to be the Code of Ethics relating to a specific cadre of leaders covered in a specific instrument. For example in the case of Members of the National Assembly the Code of Ethics was made up of the conditions under Section 27(2) 9h), (i), (j) and (k) of the Interim Constitution of Tanzania 1965, breach of which would disqualify a person from election as a constituency member. These provisions were extended by an amendment to the Interim constitution (Act No. 40 of 1967) which amended S. 27 by adding paragraphs (h) – (l). The provision stated that no person shall be qualified for election as a constitutional member:(h) if he or his spouse is the beneficial owner of any share in any company in corporate or established in the United Republic or elsewhere or, of any interest in any such share. If he or his spouse holds the Office of a director in any company incorporated or established in the United Republic or elsewhere otherwise than as a nominee of the Government or of any Statutory Corporation or of any company of which the majority of ordinary shares are held by the Government or by Statutory Corporation. If he or his spouse is the beneficial owner of any house or other building or of any interest in a house or other building which, or any portion of which, is in the exclusive occupation of some other person in consideration of payment of rent, fee or other valuable consideration whatsoever other than lawful deductions from the wages payable to a domestic servant in respect of occupation by him of any portion of such house or of any living quarters attached thereto. If or his spouse is in receipt of two or were salaries; or If he or his spouse being a person engaged in any trade, business, profession or vocation, employs any workman for the purposes of, or in connection with, such trade, business, profession or vocation.
Similary in 1974 the Interim Constitution was Amended to give the Committee Constitutional recognition See S. 3 – 5 of the Interim Constitution of Tanzania (Amendment) Act, 1974) amending SS. 34 A + B and 37 of the Interim Constitution.
The provisions were quite elaborate. Where a member acquired in some way property that was not reported earlier he had to give a notice to the Electoral Commission that he would dispose the property in three months from the date of the notice (S. 27 (10)). Section 34A was introduced to provide for declarations by members of National Assembly, and the declarations were to be lodged with the Speaker indicating that the particular member is not disqualified in terms of Section 27(2) Paragraphs (h) – (l). A copy of each declaration was to be forwarded to the Attorney General (S. 34 A (5)). Further, section 34B was introduced in the Constitution for Members to lodge statements of affairs regarding particulars of the members’ income and assets and of the income and assets, and of the income and assets of the member’s spouse or spouses. That statement also was forwarded to the Attorney General (s. 34b (3)). It is noteworthy that this information was highly confidential and only the President, the Speaker and Attorney General were to be privy to it (s. 34B (4)). And where an Act of Parliament authorized access to such information the Interim Constitution directed that such an Act must make “provision as may be necessary to ensure that no unauthorized person gains access to any statement of affairs or receives any information contained therein.” These provisions also were to apply to the Speaker of the National Assembly and he was required to report to the President directly (Section 37 (2A) and (2B)). The President would, in turn, forward a copy of the Speaker’s declaration to the Attorney General (Section 37 (2C)). The contravention of the Code meant that the Member of Parliament would vacate his Parliamentary seat (S. 34(1)). The case of Members of a Local Authority was covered under Section 2 of the Leadership Code Committee Act, 1973, which provided that ‘the leadership code’, in the case of a member of a local authority, included conditions referred to under section 48(1) paragraphs (i), (j), (k), (l) and (m) of the Elections Act, 1970 (No. 25 of 1970) the breach of which would disqualify a person from election as a member of a local authority. Provisions in the stated Paragraphs were similar to those applicable to members of parliament.
In the case of Civil Servants section 2 of the Leadership Code Committee Act, 1973, provided that ‘the leadership code’ in the case of any person in the employment of the Government of the United Republic, the conditions of leadership set out in the 2 nd Schedule of the Civil Service Regulations of 1970 would constitute the leadership code for that cadre of public leaders. In the case of any other public officer it was provided that “the leadership code” for this cadre not covered by the other categories would be such conditions of leadership as may be prescribed by the President, or other authority having powers so to do in relation to the office held by the public officer. But where no such conditions were in place the conditions applicable to the local authorities were deemed, mutatis mutandis, to be the conditions of leadership prescribed in relation to such office. The Act further defined who is a leader and it practically reproduced the TANU leadership code’s definition. It however added “any person who in the opinion of the Committee is a leader of an Ujamaa Village” The Committee was constituted of a Chairman who was a presidential appointee, and not less than two and not more than three other members also appointed by the President 13. The Committee was to be assisted by a Secretariat whose officers were Civil Servants. The jurisdiction of the Committee was to enquire into any alleged or suspected breach of the leadership Code by any Public Officer. Every inquiry conducted by the Committee was to be private14. The proceedings before the committee were to be judicial proceedings and except for state privilege all kinds of evidence could be produced before it.15 The decisions of the Committee were to be forwarded to the President for further action as such they were largely recommendations. The reports of the Committee were confidential and could not be disclosed to any person other than the President or his delegate. The President had options of taking action against the Public Officer either on his own or in consultation with the then powerful TANU’s National Executive Committee.16 The failure of the Committee from making an inquiry or reaching a verdict was not
Section 3 Section 4 (2) 15 Section 13 (4) 16 Section 10
however a bar to further legal proceedings against the Public Officer.17 The failure to attend proceedings, or obey the orders of the Committee constituted as criminal offence punishable, if convicted, to a fine of not more than Ts. 5,000/= or imprisonment not exceeding two years, or to both such a fine and imprisonment. 18 But offences under the Act would only be prosecuted with the Attorney General’s consent.19 We have dealt in relative detail with this Act because it has a lot of ‘kinship’ with its successor, the present Leadership Code of Ethics Act, 1995, which is the focus of this review. The significant elements of the Act were thus as follows: (a) The Act gave statutory recognition of TANU’s Leadership Code and applied it to Public Leaders, in the party, and public servants in general. The assumptions here was that TANU as the sole ruling party had jurisdiction over all public leaders and its ideology and conception of public leaders’ ethics was deemed to be part of the Public Ethic. Obviously for those who detested Nyerere’s ‘Ujamaa’ and its socialist leanings they had no sympathy for such a Code, grounded as it were on a socialist world view. ‘Ujamaa’ appeared to its critics to have stifled business acumen and activity and appeared to divorce arbitrarily economic activity from leadership. Hence the misconception that is current even today that such a ‘divorce’ of business from politics is a creature of socialism and not necessarily an attribute of good governance. (b) The President had an over-arching role in supervising the adherence to the leadership code. It made sense that his office was a focal point of authority as in both the ideological forum (i.e. the TANU party) and in the Official forum (i.e. Government and its parastatals) he was the supreme public leader. The exemplary integrity of Mwalimu
Section 10 (3) Section 13 (1) 19 Section 13 (5)
Julius Nyerere created the myth that the President by dint of example was the superintendent and the role model for ethical leadership. The monopoly and supremacy of the party was exemplified in the extreme glorification of its Chairman’s wisdom by the then current slogan ‘Zidumu fikra za Mwenyekiti’ – long live the thoughts of the Chairman. Statutory provisions appear to have been tailored around the persona of this extra-ordinary personality. With the retirement of Julius Nyerere in 1985 and the entrance of political pluralism the ideological monopoly of the party subsided and thus the President’s acts in the public sphere were increasingly being called into question. (c) It appears to be a pre-condition that is consistent throughout these earlier provisions that any information or report of proceedings done under the leadership code Act is confidential. Public scrutiny of the affairs of public leaders was circumscribed. Transparency was therefore remarkably low. The present Acts seem to have inherited this attribute. (d) That the creation of a formal system of regulating public leader’s ethical conduct was not punitive and it appears to have been rather educative and based on guidance rather than punishment. It was an ‘inspirational’ code of conduct and not overly prescriptive. It is important to remember that these Acts were passed notwithstanding the existence of anti-corruption statutes which were basically punitive. The intention must have been to create an alternative scheme for the regulation of public leaders, exhortative in character and complementary to the penal or prescriptive regime. The structure of the Permanent Commission of Enquiry, and that of the Committee of the Leadership Code Act, were similar in that the punitive thrust was left to the wisdom and discretion of the President. Hence reports or rather ‘awards’ of these two organs were basically in the form of recommendations. Today those two institutions exist in a pluralistic post-socialist era in the form of the Commission for Human Rights and Good Governance (for the PCE) and the Ethics Commission (for the
Committee of the Leadership Code). No wonder when Justice Kisanga of CHRGG in the proceedings against government functionaries in the Nyamuma Case sought to enforce a decision against those functionaries the government stonewalled as the award was deemed to be just a recommendation as in the old style.20 The Legal and Human Rights Centre (LHRC) took the matter to the High Court arguing that the Government has to enforce the CHRGG’s recommendation and that Court held it has no jurisdiction to interfere into the Commission’s recommendations. The LHRC went to the Court of Appeal and in January 2009 got a favourable finding by the Court stating that the High Court erred in not considering the merits of the case and it has jurisdiction.21 This decision has given a significant boost to the image of the Commission or else its decisions would have be rendered useless and a waste of scarce public resources. The lesson being that this ‘path-dependency’ mindset and form of legislative enactments ought to be overhauled completely to suit the present democratic pluralistic era. In the case of the present-day Ethics Tribunal its structure is statutorily designed to be similar to that of a Commission of Inquiry under Cap. 32.22 It is however a positive achievement of the TANU leadership in recognizing that leadership has to be cultivated and the ethical dimension be enhanced through institutional arrangements bolstered by the law and rules. If measured against the principles of leadership as enumerated in the Nolan Principles of Public Leadership some aspects of the TANU Leadership Code scheme cannot stand the test especially with regard to principles of openness and accountability. The confidential nature of the reports and conduct of proceedings cannot augur well with transparency. The public’s oversight of its leaders would thus inevitably be compromised under the cloud of secrecy, as it were. More so in the present day circumstances the President as the ultimate appointer of the Civil Service stands in
See Human Rights in Tanzania Reports by the Legal and Human Rights Centre (LHRC) See http://www.policyforum-tz.org/node/6451 - ‘LHRC WINS COURT APPEAL (NYAMUMA HUMAN RIGHTS)’. 22 Section 26 (10) of the Public Leadership Code of Ethics Act, Cap. 398.
conflict of interest where his principal officers are subjected to scrutiny. Questions arise whether his office should solely be the ultimate arbiter of issues concerning integrity of public leaders. With this background in mind we undertake herein a review of the Leadership Code of Ethics Act by first making reference to the constitutional mandate for the legislative scheme, secondly by briefly outlining the Act itself and by making some comparative commentary.
3. Establishment of the Ethics Secretariat: The Constitutional Mandate
The Ethics Secretariat is a creature of the Constitution of United Republic of Tanzania. Under Article 132 of the Constitution the Ethics Secretariat is established.23 The Secretariat is empowered and is given authority to inquire into the behaviour and conduct of any public leader for the purpose of ensuring that the provisions of the laws concerning the ethics of public leaders are duly complied with. The definition of who is a public leader is left to the particular enactments concerning the ethics of a particular cadre public leaders24. Specific provisions exist under Leadership Code of Ethics Act, Cap. 398 that define who is a public leader. The Ethics Secretariat is constituted by an Ethics Commissioner and such other employees whose number shall be specified by the laws enacted by Parliament. Similarly Parliament is enjoined to enact a law stipulating basic rules of ethics for public leaders which shall be complied with by all persons holding public office which shall be specified by Parliament.25 The constitutionally directed content of Rules of Public Leaders Ethics appear to be the legal pillars for the formal codes of ethics. The Constitution states that these Rules of Ethics shall :a) Identify office holders who shall be subject to the rules of ethics.
Article 32(1) of the Constitution of URT. These provisions came into being through the 12+9 Amendment of the Constitution (Act No. 12 of 1995 which be effective in July, 1995) 24 Art 132(2). 25 Article 132(4)
b) Require such holders of Public Offices to make formal declarations concerning their assets income and liabilities. c) Prohibit conduct that portrays a leader as a dishonest, practices favouritism or lacks integrity; or forbid conduct that tends to encourage corrupt practices in public affairs or jeopardizes public interest or welfare. d) Prescribe penalties which may be imposed for breaches of codes of ethics. e) Provide for procedure, powers and practice to ensure compliance with the code of ethics. f) Prescribe any other provisions necessary for promotion and maintenance of honesty, transparency, impartiality, and integrity in the conduct of public affairs and for the protection of public funds and any other public property. These requirements are in line with the seven principles of public life: Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership. Other provisions of the Constitution that touch on the question of ethical leadership are provisions which provide for the measure of ethical integrity to be the basis upon which a public leader’s competence might be judged upon. In the case of the President where he is impeached by Parliament one of the criteria for initiating such proceeding is failure to adhere to the leadership code of ethics. Similarly the Prime Minister, Ministers and Regional Commissioners may be required to vacate office where they are shown to have conducted themselves in an unethical manner. Mechanism The same provisions apply to members of parliament who may be disqualified for having breached the code of leadership ethics. Members of the Judiciary are also specifically required to adhere to judicial standards of ethical conduct. The constitution is emphatic on this score and gives mandate for the establishment of a mechanism that would restrain conflict of interest and enhance accountability of Members of Parliament by declaration of their interests, assets and liability in a formal manner. Article 70 of the Constitution provides:
70.(1) Every Member of Parliament shall be required to submit to the Speaker two copies of a formal statement regarding his property and the property of his spouse. The statement shall be made on a special form prescribed by law enacted by Parliament and shall be submitted from time to time as shall be directed by such law. (2) The Speaker shall transmit to the Ethics Commissioner, a copy of every formal statement submitted to him in accordance with the provisions of this Article. (3) Parliament may enact legislation for the purposes of making provisions designed for the protection of the statement of property submitted by a Member of Parliament in accordance with the provisions of this Article and to ensure that persons unauthorized or not concerned do not get the opportunity to see the statement of property or know its contents. The Constitution lays down the requirement of registering declarations and also the confidentiality of those declarations. It is within these constitutional parameters that we review Cap. 398.
4. Overview of THE LEADERSHIP CODE OF ETHICS
ACT, CAP. 398
The Public Leadership Code of Ethics Act Cap. 398 (Act No. 13 of 1995, amended by Act No. 5 of 2001) came into force on the 1st of July, 1995. The Act is constituted by six parts, as follows:I. Preliminary Provision (ss.1 – 4) II. The Basic Elements of Code of Ethics (ss. 5 – 7) III. Code of Ethics Applicable to all public leaders (ss. 8 – 15) IV. Supplementary Provisions Applicable Ministers and Regional Commissioner (ss.16 – 17) V. Administration and Enforcement (ss. 18 – 26) VI. Miscellaneous provisions (ss. 27 – 32)
Under section 31 (1) and (2) (a) & (e) of the Act the President, in consultation with the Minister responsible for Local Government, has enacted subsidiary legislation, namely, the Public Leadership Code of Ethics (Declaration of Interests, Assets and Liabilities) Regulations, 1996 ( amended by GN No. 261 of 2001). The Regulation sprovide for the registration procedures of Declarations of Assets and provide for the forms of the Register and the Declarations.
5. Comparative Legislative Schemes on Public Code of Ethics: Comparison with Uganda and Kenya
The World Bank Framework i. We have stated that a framework for an Ethics Code may be derived from a set of general principles that may be applied to a given cadre. For public office we have referred to Lord Nolan’s Seven Principles of Public Leadership: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. These principles are fairly reflected in the Leadership Code of Ethics Act of Tanzania. We say “fairly” because at times salutary words or phrases are used in the Act in the most grave manner only to be contradicted within the provisions.26 However, in undertaking a comparative analysis of Cap. 398 we have adopted the World Bank framework for Asset Disclosure of public officials27 for considering similar statutes of neighbouring countries of Kenya and Uganda, using seven basic criteria:i. Historical Information, ii. Coverage of the law; iii. Filing Frequency and Method; iv. Content of the Declaration; v. processing of the Declaration; vi. Punishment for Breach and vii. Public Access to Declarations.
-Mashamba (Nola), - Mujumba http://www1.worldbank.org/publicsector/civilservice/assetsDimensions.htm
Historical Information. Tanzania The Tanzania Statute was passed in 1995 (and was amended in 2001). This statute is preceded by the Committee for the Enforcement of the Leadership Code Act of 1973. The establishment of the Ethics Secretariat is mandated by the Constitution Article 130. Similarly the obligation to be ethical is constitutionally recognized in the case of Ministers Article 57(g); and the members of parliament to make Declarations of their Assets by Article 69; and for a Register to be established Article 70. The Constitution under Article 67 (d) is emphatic that one of disqualification of an MP is conviction of any offence in breach of ethics. The Speaker of parliament is similarly bound under the terms of Article 84 of the Constitution, he must vacate his chair if he is found to be in breach of the Code of Ethics (Article 84(7) (h)). The Constitution also defines what is a code of Judicial Ethics for Judges in the service of the Courts to follow. (Article 151). Uganda The Leadership Code Act, 2002 of Uganda was passed by the Ugandan parliament “to provide for a minimum standard of behaviour and conduct for leadership’ to require leaders to declare their incomes, assets and liabilities’ to put in place an effective enforcement mechanism and to provide for related matters”. The Act is much more elaborate than Cap. 398 in the interpretation part where such words or phrases like “conflict it of interest”, “benefit”, “declaration”, “agent”, etc. are defined. The Constitution of Uganda under its Chapter 14 provides for the Leadership Code of Conduct. In four precise Articles parliament is directed to enact a leadership code of conduct for persons holding offices as may be specified by Parliament (Article 233). The Code is to make provision for specified leaders to declare their incomes, assets and liabilities from time to time; prohibit conduct likely to comparable honesty impartiality and integrity of leaders; or conduct likely to lead to corruption or that is detrimental to public good or good governance. The Code shall prescribe penalties for breach of the without prejudice to
criminal prosecution. It shall also prescribe powers and procedures for effective enforcement of the Code; and make all the necessary provisions for promotion and maintenance of honesty, probity, impartiality and integrity in public affairs; protection of public funds and other public properties (Article 233 (2)). The enforcement of the Ugandan Code is enforced by the Inspectorate of Government. (Article 234) A leader is disqualified in Uganda where he is found to be in breach of the code of conduct. The other details are dealt with in the Statute. Kenya In Kenya the Act to regulate the conduct of Public leaders is the Public Officer Act 2003 and it is enacted to “advance the ethics of public officer by providing for a code of conduct and Ethics for Public Officers and requiring financial declaration from certain public officers and to provide for connected purposes.” The Constitution of Kenya (2001 ed.) is silent on provisions of a Code of Ethics for Public Servants. The Constitution only establishes a Public Service Commission. However the Draft Constitution of 200428 has provisions of under Chapter 9 that deal with “Responsibilities of leadership” (Art. 95) and also establishment of an “Ethics and Integrity Commission” (Art. 99). However as the Draft Constitution has yet to be adopted Kenya does not currently have a Constitutionally mandated Public Ethics framework. II. Coverage of the Law on Asset Disclosure Tanzania Cap 398 under its Section 5 gives a list of public leaders who have to declare their assets. This includes all high ranking appointive officials covering about 27 individuals and/or groups of official cadres. The application of the law extends to Zanzibar and to Ambassadors and High Commissioner, representing Tanzania abroad. Thus there is a cadre of Public officials that are not covered by the Act. These however are covered by other codes under the Public Service Regulations of 2003, Local Government Regulations and professional regulations recognised
Source: The Constitution of Kenya Review Commission - aka the Ghai Commission.
by particular professions or adopted by government agencies. No similar rules for registration of Assets applies to them. Uganda Under the Leadership Code Act 2002 the coverage of the law includes all leaders appearing on the two Schedules of the Act. The Second Schedule to the Act, part A, gives the list of “Political Leaders”, which innovatively includes “A member of the National Executive of any Political Party or organization” Part B of the 2nd Schedule deals with “Specified Officer”. The Asset Declaration provisions are thus only applicable to these high ranking officials. There is no separate law requiring appointed officials to declare their assets. Kenya Similar to Tanzania the coverage of the Kenyan Act lists the officers who are to be covered under its Section 2 which is the interpretation section of the Act. However a “Public Officer” includes “any officer, employee or member, including an unpaid, part – time or temporary officer, employee or member of a Government, national Assembly, Local Authority, or any Council or Committee, Corporation or Board administering funs granted by government, a Cooperative Society, a public university or other law as prescribed by the Act. This is the most thoroughgoing definition of a public officer in East African. The Declarations of Income, Assets and Liabilities are enforced against every Public Officer (s. 26) III. Content of the Declaration Tanzania Section 11 of Cap. 398 provides for a list of properties and assets to be declared. The Act under Sections 9, 10 and 11 makes a distinction between declarable assets and nondeclarable assets. The paradox of these provisions as stated earlier is that matrimonial property is not required to be registered (S. 9(3); while the properly of the spouse and unmarried children is declarable (S. 9(1)(d)). Further properties for non commercial use are similarly not declarable. As
commented this is a significant loophole in the Tanzania code of ethics. Uganda The declaration of income, assets and liabilities is made on a form that covers details of the assets to be declared by the Public leader. However the assets and properties of spouses and children have to be declared separately. Kenya The scheduled format lists the kind of properties that must be reported. There is a distinct part for income (Salary, emoluments and investments income) and for assets (land, building, vehicles, etc). This is similar to the Tanzanian form under the Regulations. Liabilities are also declarable just as is the case in Tanzania since 2001. Information for the spouses and children of under the age of majority must be filed separately. IV. Filing Frequency and Method. Tanzania The law provides that on first appointment or taking of office a Public leader musts give a Declaration in 30 days. After which an annual declaration must be submitted, followed by a declaration on the date of leaving office. This gives a relative wider space for superintendence of any increase of assets whilst the leader is in office. Uganda The filing of declarations by civil servants must be done, within 3 months of one’s appointment or of becoming a leader and thereafter after every two years in March. Kenya There is no requirement in Kenya for filing a Declaration on taking office, however a Declaration ought to be filed annually. It must be noted that in Kenya the submission of declarations is done by all public officers. V. Declaration Processing
Tanzania The processing of declarations is done by the Ethics Secretariat where a public Official fails or is suspected that he has submitted a false declaration the Ethics Commissioner may require him to confirm or amend it. Declarations are not compulsorily verifiable and the Ethics Secretariat has the option under Sections 18 -22 to initiate investigation or under a complaint procedure. There is no requirement for the length of period a declaration would remain in the register29. Maybe in Tanzania since the information is largely confidential time limit has not been an issue. But it would appear should Tanzania still find the secrecy, which is the current situation, attractive then at least those records ought to be open to the public after a certain period of time. Uganda The superintendence function in Uganda is within the Offices of the Inspector General of Government (IGG). Chapter 13 of the Ugandan Constitution sets up the Inspectorate of Government and Article 233 establishes the Office of the IGG. This Office has the focal function of enhancing integrity in government, good governance and enforcement of the Leadership Code of Conduct (Art. 225) Where a Public Leader fails to declare his income and assets properly the IGG may require him to account for any discrepancy or omission. The leader must do so in 30 days from the date of the request. The IGG therefore retains all powers of examining declaration. Kenya In Kenya oversight of the Public Officers Ethics Act is segmented to several authorities under Section 3 of its Act. Hence a given cadre of public officers would report to one Commission while another Cadre to a different Commission. Nevertheless under Section 27 of the Kenyan Act an Officer may be compelled to give clarification of any discrepancy, omission or inconsistency in the Declaration. The contents of the Declaration are confidential according to Section 29(1) of the Act, and hence verification may only be predicated upon this confidentiality. This situation is even worse than that of Tanzania the declarations are
In UK Reports are Online.
inaccessible to the Public. The records of the declaration are kept for a period of 30 years after the leader leaves office. VI. Penalties for Breach of the Code of Ethics Tanzania Section 15 of Cap 398 provides that where a public leader fails to make a declaration without a reasonable cause it would be a breach of the Code. It is unclear what kind of penalty arises from such a breach. But where one gives a false declaration of assets the general punishment for the breach, per S. 27(2), is a fine of 1 up to 5 Million Shilling or imprisonment for 1 year. The Ethics Commissioner has to refer to a Tribunal any breach of ethics (S.27 (3) (b)). Uganda Similar to what is provided for in Tanzania failure of filing a Declaration is a breach of the Ugandan Code. But first as is the case for Tanzania no clear punishment is specified (S.4(8)). However the filing of false, misleading or insufficient declaration is a breach of the Code and under S. 5(2) a leader who does not rectify the error may be subject to a formal warning or caution or dismissal. Kenya In Kenya the law is clearer. Where an official fails to submit a declaration it is a breach of the Code and is liable for a fine not exceeding Ksh. 1,000,000 or to imprisonment of 1 year, or both. A similar punishment is in store for a public Officer who is convicted, per S. 31, of submission of a false or misleading declaration. VII. Public Access to Declaration Tanzania The Public has access to the Register of Declaration under Section 20(2) and (3) of Cap. 398. The method of accessing the register is provided for under the Rules whereby by Rule 6 the Commissioner must be satisfied that the Inquirer has no ulterior motives other than for purposes of lodging a Complaint. Any
person who misuses that access privilege is guilty of an offence and if convicted liable to a fine of Tshs. 10,000/= or imprisonment for a term not exceeding two years or both. Uganda Uganda’s Act treats all information lodged with the IGG as public information (S. 7). Consequently on an application to the IGG on a prescribed form such information is accessible. Kenya In Kenya the information lodged with the Declaration is confidential so not accessible to the Public.
6. Consideration of the Framework of Ethics for
General Framework. It is the Nolan Committee of UK that in 1995 set out what are today considered to be general principles of public life. 1. 2. 3. 4. 5. 6. 7. Selflessness Integrity Objectivity Accountability Openness Honesty Leadership.
The last principle is one based on role – modelling and practical adherence to integrity standards in public and private life. Mwalimu Julius Nyerere was such a role model. By dint of example he managed to adhere to a strict regime of integrity. It is possible that some kind of emphasis on professionalism does not clearly stand out in the Nolan Principles. Yet if a Public leader has to be accountable then competence becomes an important element. We consider here the leadership frameworks in Tanzania.
Tanzania’s Public Ethics Regime As already stated this frame work is based on the Constitution, the Leadership Code of Ethics Act (already analysed herein), the Public Service Act, and the Local Government Codes. The Constitution The Constitution provides for ethical integrity as a qualification for leadership, both in the Executive, Legislative and Judicial spheres of public life. Furthermore the provision of the Ethics Secretariat, and the necessity of declaration of assets, are a Constitutional requirement, and hence gives a constitutional basis to the Leaders’ Codes of Conduct.
A.2 Cap 398
Statutory Frameworks: The Leadership Code Act.
Under Section 6 of Cap. 398 the Act gives a framework for a Code of Ethics. It considers about 10 elements or attributes: A public leader must uphold the highest ethical standards. Here the Codes mention most of the elements of ethical conduct: honesty, compassion, sobriety continence and temperance (6(a)). A public leader has the obligation to, first organize his affairs in a style that would “bear the closest public scrutiny” and, Secondly, to declare all property or assets owned by him, his spouse or unmarried children in a procedure provided for by law (6(b). Public Officers must fulfil their official duties by upholding the rule of law, public interest and give due regard to merits of each case when making decision (6(c)) The private interests of a public leader must never undermine governmental action (6(d))
Public leaders must avoid real, potential or apparent conflicts of interest. Where conflict exist public interest must prevail (6(e)) A public leader shall not accept or solicit gift and benefits. He may however accept “incidental gifts, customary hospitality or other benefits of nominal value” . This exception similar to that which approved “Takrima” has attracted criticisms (6(f)) A public leader shall not offer preferential treatment to any person. Access to government services is based on equality. (6(g)). A public leader shall not take advantage of inside information, unavailable to the public, for deriving benefits out of it. (6(h)) A public leader shall protect public property from misuse of any kind (6(i) A public leader after employment with government, on retirement or otherwise, shall not use his experience for his own benefit or in a manner that would bring ridicule to public service. These basic principles are similar to those listed by Nolan’s Committee. The one principle that requires clearer emphasis is that of competence. This is covered by the core value of professionalism. In the present past accusations have been leveled against public leaders who are holders of bogus’ degree and doctorates. The public is thus placed under a serious dilemma of whether to trust leaders as mere “wise men” or qualified professionals. Obvious a clear statement on competence is needed. In the case of the Public Service Code of Ethics, 1995, this principle is covered by the requirement of “pursuit of excellence in service”. The Code ought to include similar provisions. The Public Service Code of Ethics, 200530. The Code of Ethics for public servants that are not covered by Cap. 398 was published in 1995 under the Public Service Act. The
Made under S. 34 of the public service Act, 2002 (Cap. 298) and Regulation 65(1) of the Public Service Regulations 2003
Code contains eight principles: Pursuit of Excellence in service, Loyalty; Diligence; Impartiality; Integrity; Accountability; Respect of Law; and proper use of official Information. These elements any contained in three core ethical values31. First, is the core value of professionalism. This includes service excellence, diligence, impartiality and use of information by public official. We connect this with a claim professional competency by public servants and clearly it is a most appropriate. Second, is the core value of Honesty which is defined by the ethical principle of integrity. The very definition of corruption is largely a failure of integrity. Thirdly, the core value of responsibility, which contains the ethical principles of loyalty to government, accountability to the public, and respect of the rule of law. We find the principles to be well defined and more definitive than the Nolan Principles of Public Life. We recommend that the Principles outlined in the Act should be strengthened by incorporating the attributes or ethos and clarity found in this Public Service Code of Conduct. The Local Government Leaders and Staff Codes of Ethics. There are specific codes of conduct for Local Government.32 These include: o The Local Government (Officers code of conduct) Regulations,33, 1990. o The Local Government Service (Staff Code of Conduct) Regulation,342000.
Doing What is Right – A Manual on the use of the Code [URT – PSC]
Section 176 of Local Government (District Authority) Act, Cap. 287; and Section 119 of the Local Government (urban Authorities Act, Cap.288 33 G.N. 435 of 1990, M/u Section 15 of Act No. 10 of 1982 local Govt. Service Act; but now under the Public Service Act, Cap. 298 34 G.N. No. 279 of 200 (made under S. 20 A of Act No. 10 of 1982) but now under Cap. 298.
o The Local Government District Authorities (Councilors Code of conduct) Regulation, 35 2000. o The Local Government (Urban Authorities) (Councillors Code of Conduct) Regulations, 2000.36 These codes are almost generic. The significant observations to be made here is that they are much more explicit and cover a wider range of ethical situations than the Public Service Code. A potential conflict exists in the sense that on one hand these Codes appear as if they are grounded in the Public Service Act regime and at times they appear not. A need is therefore real of synchronising all these Codes with the Leadership Code of Ethics Act and through the use of ‘addenda’ customised the code to a certain cadre if necessary. Otherwise overlaps would occur and the provisions for the President to consult with the Minister for Local Government under Section 31 of Cap. 398 would be superfluous. 7. Areas of Concern in the Public Leadership Code
of Ethics Act.
In 1999, some ten years ago today, Philemon Mujumba submitted a research paper for his undergraduate studies at the Faculty of Law, University of Dar Es Salaam, entitled ‘The Efficacy of the Leadership Code of Ethics Act, 1995, in Combating Corruption in Tanzania’,37, and it has remained a significant attempt at evaluating Cap.398. Later in 2001 the Act was amended and certain improvements were made. In that paper Mujumba submitted a critique of the Act that pointed at several areas of concern. In 2001 the Leadership Code of Ethics Act was amended and several areas of concern pointed out by Mujumba were rectified. For example, the extension of coverage of the Act to more decision making Public Leaders, and also the inclusion of liabilities in declaring the interests of a leader, etc.
G.N. 280 of 2000 under S. 176 of Cap. 287. GN. No 281 of 2000 of Cap. 288 The Local Government (Urban Authorities)Act, 1982. Note: The Public Service Act, Cap. 298 repealed. The Civil Service Act, No. 16 of 89; The Fire Services Rescued Act. No. 3 of 1985. The Local Govt. Service Act No. 10 of 1982. And the Teachers Service Commission Act, No. 1 of 1989 under S. 35. But under Section 36 it saved all the Codes created under it + the Commissioner too. To continue until such time that they are replaced by legislation.
Mujumba’s dissertation was supervised by Prof. P. J. Kabudi (presently the Dean Faculty of Law)
More still the Public Service Act in 2003 issued the Public Service Regulations under which all Public Servants are covered. Local Governments also from 2000 have issued a variety of leadership codes. Legislatively Tanzania has made commendable progress in enactment of the codes in every sphere of public life. Mujumba’s critique therefore, much as it is still relevant, does not tell the whole story as it should be told today. In 2004 however another important analysis of these Codes was done by NOLA entitled When the Operation of the Law Enhances Corruption in Tanzania: An Enigma in a Legal Regime Needing Reform, its lead researcher being Clement Mashamba, and Advocate, and human rights activist. Many of the criticisms of Mujumba were adopted but also a holistic critique of the laws regulating corruption were reviewed. Since then however we have the PCCA Act coming in 2007 and other developments not in place then. The Ethics Secretariat itself has come up with additional criticism of the Act hence the need for this review. These historical critiques and some additional concerns merit some consideration as follows: The Definition of a Public Leader First, there is some weakness in the Act with regard to the definition of a Public Leader. This seems to be a persistent problem. How far can the net go. In Kenya the Act covers all Public Officers. In 1999 when Mujumba wrote his critique some public leaders such as Deputy Principal Secretaries, Commissioners, and Directors in Government departments and high ranking officials in Parastatals were not included in the category of leaders. This criticism was partially resolved, as stated above, by the amendment of the Act in 2001. The list, as expanded, does not still include leaders of political parties. In Uganda the public leader include leaders of political parties. It is useful to include leaders of political parties who are by virtue of their offices potential aspirants of public office or have significant influence over the Government of the day. Declaration of Assets The second area of concern revolves around the declaration of assets. Before 2001 it way unclear whether a Public Leader is required to declare his liabilities. Section 9(6) of the Act has
cured that defect and liabilities are also declarable. But nevertheless the legislation is still found wanting where it makes a distinction between declarable assets and those that are not declarable. Section 10 still provides that assets that are not of commercial character are not declarable. The other objectionable distinction is where the code makes a distinction between matrimonial property and property which is not. Again this splitting of hairs generates unnecessary suspicion. There is no justification whatsoever why a Public Leader should not declare property that is not matrimonial or that is not held for commercial purposes. These distinctions should be abolished by following the Kenyan example and require Public leaders to declare their properties assets and liabilities.
Gifts – Nominal and Customary Hospitality. The Act also makes some ambiguous references to gifts, customary hospitality and other nominal advantages. This reference to “takrima” - like gifts generates a lot of concern.38 We recommend as follows: (i) (ii) All assets of leaders ought to be declarable without distinction. A gift of less than a certain amount in value (Say Tshs. 50,000 as provided today) should not be declared but must be reported in a departmental register of gifts. Any non – monetary “hospitality” ought also to be reported if it is too frequent or involves the receipt of tickets or accommodation being paid for.
Public Access of the Register.
See Nola Report.
The Act highly restrains any individual from the public through bureaucratic hurdles to access the Register. The procedure involves a person who must show the Ethics Commissioner that he has a genuine concern for accessing the Register. The Commissioner has discretion to give permission or not. If one is given permission and uses the information not as intended that person would be guilty of an offence punishable by fine or imprisonment conviction. The information may not be used for used for media purposes or for defamatory purposes.39 This aspect of the code has faced a lot of criticism. Apart from Mujumba the other critics of the Code are mainly from the NGOs. The NOLA report is largely similar Mujumba’s concern, and NOLA is one of the Petitioner, to the High Court for a Constitutional Case where the petitioners are praying for Judicial Intervention in amending the Code to increase public accessibility to it. NOLA’s proposals for the amendment of the Act are four (see p.102 of their report) and 3 of the proposals are on access to the Register of assets! We complement the concern as worthy of public and official attention. Yet considering the matter further there is an obvious need of balance between the right of the public to know and the leader’s right to privacy. More so when politicians are known to use the “tit-for – tat” arguments in political motivated smear campaigns or clear defamation. The Constitution under Article 70 provides for confidentiality of the information in the case of MPs. So the rules of confidentiality do have a Constitutional mandate. But total non – disclosure also completely puts a bar on public superintendence of public leaders – an important component in enhancing integrity and accountability. It is suggested that the regulations be amended in such as way that access would be controlled and the use of the information for wrongful purposes be restricted. A good example is the Rules of Guidance given by the Ethics Commissioner for the UK Parliament. The Rules do not bar access to the Register but control access through procedures that assure responsible access to information. Therefore much as
Regulation of the Declaration of Interests Assets + Liabilities Regulation (G. N. No 108 of 1996 and 261 of 2001
there is some constitutional justification for confidentiality, it is obvious that constitutions are not cast in stone and amendments should be done to enhance transparency. Penalties for breach of the Code. The punitive provisions of the Act are not clear enough nor are they drafted to provide for similar penalties where breaches occur. The constitution provides for leaders to vacate their offices where they are found to be in breach of ethical principles. The President may be impeached (Art. 46 A(2)). The Prime Minister, Ministers and Regional Commissioners may also be removed from office if they breach the Public Leaders Codes of Ethics, and Members of Parliament too (Article 11(i)(d)). The Code puts in place an elaborate process for filing a complaint with the Commissioner for Ethics; the Secretariat investigating to establish a prima facie case; then appointment of a Tribunal to hear the case. In whatever case the Tribunal makes recommendations as to administrative actions, criminal prosecutions or other further actions to be taken as it thinks fit. 40 The Tribunal is styled in the manner of the defunct a Commission of Enquiry ( recall the PCE) and Section 26(10) equates it to a commission of inquiry! What then would the Executive do with the recommendation? The function of the Ethics Commission and the Tribunal ends there. Here again the Report is not Public although there is some reference that it may be laid before Parliament and it is not clear for what purposes. It is recommended that a summary of the Conclusions of the Tribunal be published. The proceedings are conducted in public (under S. 26(5) and there is not point for the Public not to be informed of its findings. The in equity of the penalties provision i.e. Section 27, is rather surprising. Whilst an individual member of the public who makes an unfounded allegation against a Public leader knowing the same to be false is punished with either the payment of a fine of not less than Tshs. 200,000 and not more than Tshs. 1,000,000/= or to imprisonment of not more than 2 years; a
S. 26 (8)
public leader on the other hand if he commits a similar offence against another leader gets a fine of one Million shillings and imprisonments for a term not exceeding one year for a member of public and one year for a leader? We recommend that the punishment clause should contain the same penalties. The first principle of formal justice is to treat like cases alike, the public leader appears here as some privileged offender!
Conflict with other Statutes In our reading of the statutes we find that a significant amount of work has been done regarding legislating for a Code of Ethics in the Public Service. We have found a lot of materials relating to codes of ethics especially from the Public Service Commission. The Ethics Secretariat is however the only agency that has a systematic procedure to record the declaration of assets. There are Local Government regulations which refer to declaration of property but these are not comprehensive. We find no conflict on that score. What may be a ground for some conflict is in the superintendence of some leaders of say local government who may be the subject of both regimes, for example, the Member of Parliament who is also a Councillor by virtue of his office. Here it is important to have uniformity and find ways of resolving the conflict in favour of the Code under Cap. 398. Yet we have seen some concern about public leader’s affairs not transparent enough to bear “highest public scrutiny” as the Act provides. We recommend a review of the Statute: (a) To require all public leaders and Officers to declare their interests, assets and liabilities. Similar to the Kenyan Statute. (b) To require all Public leaders and officers to make the declaration on the assumption of any public office, annually after that; and finally on vacating office. (c) The Statute to make a distinction between High Ranking public leaders (both elective and appointive) whose Declarations must be accessed by the public and centrally registered with the Ethics Commissioner, and other Public
leaders and Officers whose declarations are to be kept in their confidential files. Their reports may be available for public scrutiny where genuine complaints of breach of Code of Ethics are levelled against them. The restriction presently applicable to public leaders should be applied for medium and lower level public leaders and officers. The Kenyan Act was provided for this and the requirement appears not to be onerous. The Question of proper management of Conflict of interest. The President in his recent speech pointed at the virtue of making a distinction between the business activities or Commercial interests of public leaders with those of governance. This is a legitimate concern and true enough a lot of ethical breaches arise when these two spheres are mixed. In Plato’s ‘The Republic’ the Guardians, or the Rulers, never deal with business affairs, they devote their lives to governance. Even for the Christians, Jesus drove merchants from the Temple. Worship cannot be mixed with commercial activity based on the “buy cheap, sell dear” principle which is essentially robbery and exploitation of ignorance. The challenge is how to make this separation real. What has been suggested is the possible use of blind trusts.41 This device has been used extensively in many countries. Basically it is a device based on the law of Trustees.42 Here a Trustee (“Mdhamini”) is appointed to hold the legal interests of a Beneficiary (say a the Public leader in our case) as if the trustee were the owner of the assets or interests of the beneficiary. The Trustee would make all decisions concerning the properties of the beneficiary without communicating with him (hence the word “blind trust”). In theory then the beneficiary would avoid his business interests interfering with his official actions. Of course this fiction has so many loopholes; principally depending on the
According to Black’s law Dictionary a Blind Trust is “A Trust in which the Settler places investments under the control of an independent trustee, usually, to avoid a Conflict of Interest” 42 “A Trust involves three elements, namely, (1) a Trustee who holds the Trust property and is subject to equitable duties to deal with it for the benefit of another ; (2) a beneficiary to whom the trustee owes equitable duties to deal with the property for his benefit. (3) Trust property, which is held by the trustee for the beneficiary” (Black’s Law Dictionary 7th Ed)
power of other legal and moral institutions it is easy to use a third party to get information or give information to the Trustee. Again what of the properties of the spouse and minor children must these also be placed under the Blind Trust? What of their entitlement to run their affairs without the constraint of the public leader’s office? It is recommended that provisions for the use of these Blind Trusts or such devices be developed by: (a) Determination of the different devices that may be used i.e. the traditional Blind Trust and/or the disposition of the property to a professional trustee or a family trust managed by an independent professional trustee. The identification and qualification of individuals or bodies corporate that may be retained to perform the functions of a Professional Trustee who would have the obligation to report properly to on management of the property be provided for. Amendment of the law of Trusts and succession in a manner that would accommodate the concept of “Blind Trusts”. All Public leaders to place their commercial interests and assets under such authorized Trusts. This may not involve public leaders who are not required to report their affairs with the Ethics Commissioner.