By Frederick Fussi
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| Chairperson of the Commission for New Constitution Judge. J.Warioba |
Dar es Salaam.
A leading scholarly and political argument as to why Tanzanians need a new Constitution is that, when the current Mother Law was created, most people did not participate in the process of writing it. The perspective of people’s participation has dominated most debates.
The need for a new Mother Law and the leading argument for its discourse ended up demanding massive people’s participation in the process. Democratically, this is correct. However, technically this view is wrong.
It is wrong because the weakness of lack of popular people’s participation cannot override the issue of shortfalls in the Mother Law itself, particularly in the area of autonomous power of the president to make decisions like appointment of key officials such as the Controller and Auditor General (CAG) and Commissioner of Public Leadership Ethics Secretariat.
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| A Tanzanian Citizen |
For democratic purposes, it’s appropriate and relevant to have a new Constitution that provides fundamental guidelines for governing the country’s affairs. The new Constitution should guarantee an independent electoral commission that would oversee free and fair elections, among other things.
The pressing issue of ethics in public leadership is crucial for a democratic country. Tanzania should have ensured an effective framework for public leadership ethics before embarking on the exercise of writing a new Constitution.
What is being done now is vice versa, we have started with the new Constitution and nothing substantial has been done yet on adopting public leadership ethics.
This raises doubts whether the new Constitution will work effectively because good governance is crucial to effectiveness of any law.
A constitution is merely a law, while ethics go beyond the premise of legislation. You may have very good laws, but lack of appropriate personal values can be a problem in putting statutes to effect. I will give an example on compliance with laws versus a person who observes ethics and a person who doesn’t.
Complying with the law is not a matter of the law itself; it’s a matter of an official responsibly observing ethics by upholding principles of natural justice.
Unethical individual would not comply with laws. For instance, procurement in a municipal council would end up unjustly benefiting officials who oversee the tendering process.
In his 2010 annual report of financial statements by local government authorities, the CAG commented, “My general statement is that, the status of compliance with the Public Procurement Legislations learned from the transactions tested as part of my audits is still not satisfactory as far as the legal requirements are concerned.”
Therefore, compliance with laws requires ethical people. The magnitude and impact of our unethical problem has been widely realised that’s why there is an urgent need to address it in the new Constitution.
In a recent study done by Twaweza, it was reported that in Dar es Salaam, one out of five residents pay bribes when seeking healthcare services in public facilities.
Soliciting or receiving bribes has become common among Tanzanians. This unethical tendency is one of the national catastrophes, yet it doesn’t feature among serious matters in most debates in the process of making the new Constitution.
In its 2012 East Africa Bribery Index, Transparency International (TI) identified ten prominent service rendering sectors which are leading in bribery.
The sectors include, police, judiciary, city and local councils, land services, medical services, regional administration, educational institutions, registry and licensing services, utilities (water, electricity and postal services), and tax services.
The police and the judiciary ranked as the most bribery institutions in the country. However, it is important to highlight that the Police Force score was almost twice as much higher than that of the Judiciary.
This article was also published in the most read news paper in Tanzania, The Citizen on Sunday 3 march 2013. Click here to view it
The author is the executive secretary of Tanzania Youth Vision Association [TYVA].
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