The Legal Framework for Regulation of Public Ethics in Tanzania- A Review (Ethics Commission, Parliamentary C'tee Workshop, Morogoro, April 2010)

THE LEGAL FRAMEWORK FOR THE REGULATION OF PUBLIC ETHICS IN TANZANIA : A REVIEW[By R.W.Tenga, 2010 ] ETHICS SECRETARIAT WORKSHOP MOROGORO, April 2010

OVERVIEW1. THE DESIGN OF THE MODERN LIBERAL STATE AND THE PARADOX OF CORRUPTION 2.LEGISLATIVE HISTORY OF THE REGULATION OF PUBLIC LEADERS ETHICS IN TANZANIA. 3.THE PUBLIC LEADERSHIP CODE OF ETHICS ACT, CAP. 398: OVERVIEW 4.COMPARATIVE LEGISLATIVE SCHEMES ON PUBLIC CODE OF ETHICS: COMPARISON WITH UGANDA AND KENYA 5.CONSIDERATION OF THE FRAMEWORK OF ETHICS FOR PUBLIC LEADERS.6.2

JUSTIFICATION FOR REVIEW1 Ethics Secretariat s Mandate has widened to cover Middle Level Civil Servants; 2 The establishment of six Ethics Secretariat Zonal Offices 3 New legislation such as the Commission for Human Rights and Good Governance Act (2001) and the Prevention and Combating of Corruption Act (2007); 4 Public Sector Regulations in 2003 providing for a Code of Conduct for civil servants;

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JUSTIFICATION FOR REVIEW (2)5 Enactment of Code of Ethics for Local Government Councillors, 2000. 6 New strategies such as the National Strategy for Growth and Reduction of Poverty (MKUKUTA) with good governance as one of the three clusters of the Strategy; 7 Adoption of National Anti-Corruption Strategy Action Plan (NACSAP) 8 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.4

1.THE MODERN LIBERAL STATE AND THE PARADOX OF CORRUPTION

qThe Centrality of Leadership.Platos REPUBLIC Ciceros DE OFFICIIS (On Duty) Machiavellis THE PRINCE Jesus to Julius Nyerere

qDesigning the State - MontesquieuTHREE PILLARS of the STATE SEPARATION OF POWERS CHECKS & BALANCES The inevitability of CORRUPTION & the withering away of the State.

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KAUFMANN STUDY MOST EFFECTIVE ANTI-CORRUPTION MEASURES

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KAUFFMAN ON GOOD GOVERNANCE MANY DIMENSIONS

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S E V E N PRI NCI PLE S OF PU BLI C L I F ELord Nolan's Committee , UK , 1995

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1.SELFLESSNESS 2.INTEGRITY 3.OBJECTIVITY 4.ACCOUNTABILITY 5.OPENNESS 6.HONESTY 7.LEADERSHIP8

2. LEGISLATIVE HISTORY OF THE REGULATION OF PUBLIC LEADERS ETHICS IN TANZANIA. TANUs Leadership qColonialismPenal Code Prevention of Corruption Ordinance Cap. 400 Code 1967 The Committee for the Enforcement of the Leadership Code Act, 1973

qIndependence and AfterThe Interim Constitution 1965 The Permanent Commission of Enquiry 1966

THE LEADERSHIP CODE OF ETHICS ACT, Cap. 398 [1995] LOCAL GOVERNMENT CODES OF CONDUCT [2000] PUBLIC SERVICE ACT,

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The Establishment of the ETHICS SECRETARIAT THE CONSTITUTIONAL MANDATESARTICLE 132 WHAT A LEADERSHIP CODE OF ETHICS SHOULD CONTAIN Define PUBLIC LEADERS Provide for ASSETS

PROVISIONS THAT UNDERSCORE THE PRIMACY OF ETHICAL CONDUCT

President [Art. 46A(2)] Vice President [Art. 50 (3) (b) ] Prime Minister [Article 53 (2) (a) ] Ministers, & Deputy Ministers [Article 57

DECLARATIONS Prohibit UNETHICAL CONDUCT Prescribe PENALTIES Provide for COMPLIANCE mechanisms. Promote HONESTY, TRANSPARENCY, IMPARTIALITY, & INTEGRITY Protect PUBLIC FUNDS & PROPERTY

(2) (g)] Members of Parliament (Article 67 (2) (d) ] Declaration of Ethics compliance by MPs [Art.69] Declaration of Assets by MPs [Art. 70] Loss of Seat for Breach of Ethics [Art. 71 (1) (d) & (g)] Speaker [Art. 84] Deputy Speaker [Art.85] Judicial Officers Judges [Art.110 (5)]

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3. PUBLIC LEADERSHIP CODE OF ETHICS ACT, 1995 [Cap. 398] - OVERVIEW

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Principles to be invoked in the coe [Section 6]1. UPHOLD HIGHEST ETHICAL STANDARDS 2. ENHANCE CONDUCT THAT WOULD BEAR CLOSEST PUBLIC SCRUTINY 3. UPHOLD THE RULE OF LAW 4. LEADERS PRIVATE INTEREST NOT TO UNDERMINE GOVERNMENT ACTION 5. AVOID REAL, POTENTIAL OR APPARENT CONFLICTS OF INTEREST

6. AVOID GIFTS & OTHER ECONOMIC BENEFITS 7. AVOID PREFERENTIAL TREATMENT TO ANY PERSON 8. INSIDE INFORMATION 9. USE PUBLIC PROPERTY FOR PUBLIC BENEFIT 10.GUIDE POST-EMPLOYMENT BEHAVIOUR

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Comparison with the public service coe, 20051.PURSUIT OF EXCELLENCE IN SERVICE 2.LOYALTY 3.DILIGENCE 4.IMPARTIALITY

5.INTEGRITY 6.ACCOUNTABILITY 7.RESPECT OF LAW 8.PROPER USE OF OFFICIAL INFORMATION

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CORE VALUES UNDERLYING THE PUBLIC SERVICE COEI CORE VALUE : PROFESSIONALISM . Principle 1 : SERVICE EXCELLENCE Principle 2 : DILIGENCE Principle 3 : IMPARTIALITY Principle 4 : USE OF INFORMATION I CORE VALUE : HONESTY I . Principle 5 : INTEGRITY I. CORE VALUE : RESPONSIBILITY I I Principle 6 : LOYALTY TO GOVERNMENT Principle 7 : ACCOUNTABILITY TO PUBLIC Principle 8 : RESPECTING THE LAW

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4. COMPARATIVE LEGISLATIVE SCHEMES ON THE PUBLIC CODE OF ETHICS: COMPARISON WITH UGANDA AND KENYA

UGANDA1995 CHAPTER FOURTEEN LEADERSHIP CODE OF CONDUCT 233. Leadership Code of

KENYAPUBLIC OFFICER ETHICS ACT , 2003

CONSTITUTION OF UGANDA,

Conduct. 234. Enforcement of the code. 235. Disqualification for breach of the code. 236. Interpretation

LEADERSHIP CODE ACT 2002 PART III CONFLICT OF

INTEREST [ss 8 - 15] PART IV POSTEMPLOYMENT [ss16-17]

P A R T I I SPECIFIC CODES OF CONDUCT AND ETHICS P A R T I I I GENERAL CODE OF CONDUCT AND ETHICS 8 PERFORMANCE OF DUTIES , GENERAL . 9 PROFESSIONALISM 1 0 RULE OF LAW . 1 1 NO IMPROPER ENRICHMENT . 1 2 CONFLICT OF INTEREST . 1 3 COLLECTIONS AND HARAMBEES . 1 4 ACTING FOR FOREIGNERS . 1 5 CARE OF PROPERTY . 1 6 POLITICAL NEUTRALITY . 1 7 NEPOTISM 1 8 GIVING OF ADVICE 1 9 MISLEADING THE PUBLIC 2 0 CONDUCT OF PRIVATE AFFAIRS . 2 1 SEXUAL HARASSMENT . 2 2 SELECTION , ETC . OF PUBLIC OFFICERS . 2 3 SUBMITTING OF DECLARATIONS 2 4 ACTING THROUGH OTHERS 2 5 REPORTING IMPROPER ORDERS P A R T I V DECLARATIONS OF INCOME , AS SET S A ND L I A B I L I TIES

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WORLD BANK COMPARATIVE FRAMEWORK FOR ASSETS DECLARATIONS[ http://www1.worldbank.org/publicsector/civilservice/assetsDimensions.htm ]

1.Historical Information; 2.Coverage of the law; 3.Filing Frequency and Method; 4.Content of the Declaration;

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5.Processing of the Declaration ; 6.Punishment for Breach; 7.Public Access to Declaration s.

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EXAMPLE 1 COVERAGE OF THE LAW

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EXAMPLE 2 PUBLIC ACCESS TO DECLARATIONS

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5.CONSIDERATION OF THE FRAMEWORK OF ETHICS FOR PUBLIC LEADERS. A GENERAL FRAMEWORK

General Framework Tanzanias Public Ethics Framework qThe Constitution qStatutory Frameworks Public Leadership Code of Ethics Act, Cap 398 [1995] The Public Service Act, Cap 298 [2000] The Public Service Code of Ethics, 2005 The Local Government Acts Professional Codes19

5.CONSIDERATION OF THE FRAMEWORK OF ETHICS FOR PUBLIC LEADERS. AREAS OF CONCERNq AREAS OF CONCERN Major Reviews: Philemon Mujumba (1999) NOLA

q q q q q q q

The Definition of a Public Leader Declaration of Assets Gifts Nominal and Customary Hospitality. Public Access of the Register. Penalties for breach of the Code. Conflict with other Statutes Achieve Highest Public Scrutiny by: Making Declarations mandatory for all Public Leaders & Officers (eg. Kenya) Declarations to be lodged on assumption of office, annually after that and on vacation of office Publicity of high ranking public leaders declarations be mandatory and for others be subject to restrictions

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5.CONSIDERATION OF THE FRAMEWORK OF ETHICS FOR PUBLIC LEADERS. RESOLVING CONFLICT OF INTEREST THE CASE OF THE BLIND TRUSTq THE CASE OF THE BLIND TRUST

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 (Blacks Law Dictionary) A Trust involves three elements, namely,

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 (Blacks Law Dictionary 7th Ed)

(1) a Trustee who holds the Trust property and is subject to

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Tentative Recommendations on the Blind Trust 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. (RITA, PUBLIC TRUSTEE, ADMINISTRATOR GENERAL, INCORPORATION OF TRUSTEES ACT, etc.) 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.

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MWISHO!!!!

ASANTE KWA KUNISIKILIZA!! THANK YOU!

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