Mpaka Kieleweke
JF-Expert Member
- Feb 27, 2007
- 4,132
- 1,577
Hii ni pepa aliyowasilisha kwa wafadhili juu ya skendo la BOT, na hii ndio inawanyima usingizi hawa mafisadi kwani wanatakiwa ama kujibu au kutoa ufafanuzi na wafadhili.
RESISTING CORRUPTION AND BREAKING RANKS THE PRICE YOU PAY IN TANZANIA
The Experiences with Taking dissent in Tanzania and the
Debacle around the Bank of Tanzania (BOT):
(By Dr. Willibrod Peter Slaa, (MP), Karatu Constituency🙂
Paper Presented at the Workshop for U4Workshop- 19th September, 2007,
AT CORAL BEACH HOTEL, DAR-ES-SALAAM:
1:O INTRODUCTION:
This is the final presentation in our workshop. It looks analytically at the possibilities of Resisting Corruption within the frame work of the abundant legal and policy instruments as well as the price one pays in breaking ranks with the system.
This presentation also looks at experiences of taking dissent in Tanzania, their consequences and thus indicating what is actually happening on the ground despite the many constitutional, legal instruments and beautiful words and promises that are being made by the authorities.
1.1 SUMMARY OF FACTS: The CASE of BOT:
On the 25th of June, in my main Speech as Shadow Minister, Office of the Prime Minister, I demanded explanation from the Government concerning various obtaining and indeed widely circulated reports of misappropriation/misuse of public funds and or elements of corruption at the BOT. Immediately after My Speech, I was summoned by the Hon. Prime Minister, in the Speakers Lounge, and was requested not to pursue these matters as they would greatly tarnish the image of our Nation. My position was that to the contrary we would be more credible and trustworthy if these charges were properly and transparently investigated. The Parliament likewise would be a credible and independent Institution it deserves. However, after around 40 minutes we agreed to differ. The Government did not only give satisfactory answers, but came up with contradictory statements through Statements of the Minister for Finance as well as the Minister for Energy and Natural Resources, during the week, before the winding up of the Prime Ministers Budget. Latter, during the week, at the Appropriation Committee of the Full House, I gave an oral notice that I intend to bring a private motion for the appointment of a Parliamentary Select Committee as per sect.104(1) and (2) of the Standing Orders, to investigate the veracity of those reports, as well as to prove the accuracy of the statements made by the two Ministers. This is the only avenue open to a backbencher, in accordance with the Parliamentary procedures .
On the 26th of June, I submitted my notice officially in writing as per requirement of section (2) of the Standing Orders. Detailed statement was submitted after thorough research to the Clerk of the National Assembly on the 8th of August, 2007 as per the requirement of the same provision of the Standing Order.
In the morning of the 13th of August a special seating of the Steering Committee of the CCM caucus consisting of Central Committee Members in the House was convened in the Office of the Speaker. Membership of this Committee Comprises of the Prime Minister, the Speaker, Secretary General of CCM (also MP), the Publicity Secretary-CCM (also MP), the Deputy Speaker. In other words, all MPs members of the Central Committee of CCM ).
Reliable information from this meeting indicates that the two Private Motions, one of Zitto Kabwe, and the other of Dr. Slaa, were the subject of discussion. The meeting went on for over four hours.
On the 13th of August, I received a letter from the Office of the Speaker, ref. CA.150/277/01/07 demanding that I submit evidence to support my motion so that the Speaker may satisfy himself before the motion is scheduled for debate. I submitted all the evidence in 1V volumes the same evening of the 13th of August, with a three- page summary indicating the source of the relevant documentary evidence.
However, in the morning of the 15th of August, I was brought a copy of a letter dated 30th of July, 2007 to Intelligence Officer in Dodoma, purportedly from the Intelligence Head Office in Dar. I studied the letter and the attachments and was convinced that it is a trustworthy document. It had as an attachment an Audit Document from the CAG, which I am using to build my case on. The letter was meant to advice the PM to block my Motion from being presented in the House, as it raises issues that the Government has no satisfactory answers, since the basis of the allegations are the findings of CAG.
From this, and with the background of the Steering Committee meeting that had taken place on the 13th I concluded that the letter of the Speaker on the 13th was in fact an implementation of this letter. I still decided to give the office of the Speaker benefit of doubt, but until morning of the 16th there was no indication that the motion would be scheduled at all. I therefore, on the 16th of August decided to withdraw my Motion in accordance with provisions of section 48 of the Standing Orders.
With this background let us now look at a few issues in my Private Motion for which a Select Committee was to be established:-
1:2 ALLEGATIONS OF MISUSE OF PUBLIC FUNDS/USE OF FUNDS
CONTRARY TO FINANCIAL PROCEDURES :
1:2.1 BOT PAYING TSHS 155 BILLION IN RESPECT OF
DEBTS OF MEREMETA (GOLD) CO.LTD:
Since 1998 we have been following up in Parliament various issues concerning this company, reported in the House to be a corporation sole, under the Tanzania Armed Forces, and the proceeds of which would be used to finance the mass production of the Nyumbu trucks manufactured by JWTZ. However, since then there has been no transparency, and no reports concerning this company were ever presented to the House, despite the many questions we raised( vide Hansard Reports since 1998). During the Budget Session 2006/2007 the Government admitted this co was under liquidation. We needed more details and none was supplied.
In short, the Government could not provide satisfactory answers as to who are the shareholders, the directors, where Meremeta is registered, where the accounts of Meremeta are audited, and where the income from Meremeta appears in the Revunue books of the Government!
This 2007/2008 Budget session, in reply to my speech, the Minister for Energy and Minerals, reiterated that Meremeta has been under liquidation and all properties of Meremeta Transferred to another company, TANGOLD ltd, a 100% Government owned company. Yet when we demanded where TANGOLD is registered, who are the directors, where are the accounts and why TANGOLD did not future anywhere in the Budget speech of the Minister, we could still not get any response from the Government.
My independent research uncovered the following:
(i)That, Meremeta Gold Co.Ltd was registered in the UK as an Offshore Co. with Registration na. 3424504 being registered as a Private Co. It has a certificate of Registration issued by Registrar of Companies in London issued on the 19th August, 1997. It was then registered in Tanzania as a branch of foreign company on the 3rd of October, 1997 obtaining Certificate of Compliance na. 32755. My search further indicates that Registrar of Treasury holds only 50% of the shares in Meremeta and the other 50% is owned by a South African Trienex (PTY) Co.Ltd. The available documents further reveal that two London based companies i.e. London Law Services Ltd and London Law Secretarial Service Ltd have one share each.
a) A number of serious issues are raised by these findings?
(i) Why would the Government of Tanzania hide all this information from the Parliament ?
(ii) How many shares does Meremeta have? Simple mathematics indicate that there is something fishy about this whole affair particular with the no of shares.
(iii) Why should Meremeta be registered as an Offshore company? Gold is in Tanzania, the JWTZ is a Tanzanian Defence Force what is being camoufladged? This is even more complex as the other main shareholder is South African.
(iv) Who exactly are these London Law Services and London Law Secretarial Services Ltd? What would a law firm have to do with gold mining?
(v) Meremeta was registered in 1997. According to records it ought to be making its returns 30th September every year. No returns are available in Dar, and no official Audit has ever been conducted. In fact, Alex Stewart Evaluation reports that Meremeta had refused to be audited by them on the pretext that it is a Government company. How is this explained?
(vi) Meremeta is registered as a Private Co. how much has it ever paid to the Government in Taxes?
(vii) How much profit has been realized since the establishment of this company, and how much has Tanzania benefited as a country and or NYUMBU directly.
(viii) The Budget Speech 2006/7 indicates that in the Financial year 2006/2007 Meremeta output was 2.7 Tons of Gold, if Meremeta was actually liquidated how then is this explained?
(ix) After-all is the Parliament no entitled to proper answers to all these legitimate questions on behalf of the People of Tanzania?
ii) Yet , with all these questions unanswered, the Controller and Auditor Generals ( CAG) report (BOT audited Accounts) of ending 30th June, 2006 (after liquidation) that BOT paid Meremeta debts to the tune of Tshs 155 Billion as follows: US $ 118,396460.36 to un unknown account of Nedbank Ltd of South Africa through HSB of New York. The Balance of US $ 13,736,628.73 was paid to TANGOLD account with NBC Corporate Branch Dar-Es-Salaam. This raises further questions:-
a) How is it that such a huge sum could be paid without Parliament being notified, and or such important information being deliberated be refused to be given peoples representatives?
b) From the shareholding, it is clear that Tanzania has only 50% of the shares, (if the mathematics is correct), why is it that the full amount of the Meremeta debt was to be carried only by BOT? Or otherwise, what percentage of this debt BOT actually covered on behalf of Tanzania?
These issues needed to be probed, and the only statutory authority for this work would be the Select Committee of the Parliament as per Section 104 (1) and (2). This is also in fulfillment of the Constitutional requirement of the powers of the Parliament, Art.63(2)3ab.
1:2:2: TANGOLD LTD:
As stated above, The Parliament was given scanty information about TANGOLD. My investigation further revealed the following:
a) That TANGOLD Ltd, is a foreign registered Co. It was registered again as an offshore co. in Mauritus with Registration na. C 205006121 dated 8th April, 2005 and subsequently registered in Tanzania as a branch of foreign company and got Certificate of Compliance na. 55661 dated 20th February, 2006.
b) That the Memorandum and Articles of Association do not show in any of the articles or even by implication, that TANGOLD is a Government owned company.
c) Section 7 of the Memorandum and Articles is even more shocking. It indicates that the shares may be transferred to members of the Family of the Shareholders that is father, mother, wife, children. This construction in a memorandum of a company belonging 100% to the Government seems not only odd but strange.
d) TANGOLD Co.ltd was registered in 2005. No returns and or Audited accounts have been submitted to date. These raise serious issues of concern. We have seen above, that BOT already paid the sum of US $ 13,736,628.73 from Public coffers. The nation, through its representatives needs to know what this money was for. The Nation needs to know the activities of this company said to belong to the Government of Tanzania, if indeed it does belong to the Government. The Parliament needs to know to what extent this company has been of benefit to our country, and how much has been paid in taxes if any! If not why?
e) My further investigation of the BRELA FORMS indicates that in all the relevant forms and returns, no where do the Directors register themselves as representatives of the Government, albeit, their directorship elsewhere is stated accordingly. This is very shocking for a company purported to belong 100% to the Government.
f) The Registrar of Treasury, who owns in trust all Government property does not appear anywhere in the statutory documents of this Company, a matter raising serious concern.
Hence, a solid ground motivating me to demand for the establishment of a Select Committee of the Parliament to probe on these pending and unresolved issues.
1:2:3 BOT PAYMENTS TO MWANANCHI GOLD CO.LTD.
(IRREGULAR PAYMENTS):
Mwananchi Gold Co.Ltd. (MGCL), unlike Meremeta and TANGOLD is a locally registered Private Company. In the Financial years 2004/2005 and 2006/2007 BOT effected total payment of US $ 5,512,398.55. I have no problem BOT making payments to private companies. I am concerned with the irregularities in the payments. CAG Management letter, indicates that up to 21st December 2006, MGCL had an outstanding payment of US $ 62,847.91, equivalent to 78,753,459.in the form interest for loan advances. According to the auditors the interest was to have been paid in the first six months. Yet, 18 months later, no single cent had been paid and the BOT had not moved in to take any attachments or properties. This is a serious irregularity.
Further a loan of US $, 2,807,920, appears as per CAG report to have been secured by raw gold purchased with the same loan funds. This transaction is nor usual.
BRELA reports indicate that BOT holds 500 shares in MGCL and NDC- a Government parastatal holds 375 shares. Other Private companies by the names of Mwananchi Trust Company Ltd holds 1,123 and Chimera Co.ltd with 500 shares respectively. MGCL was registered and got certificate of Registration na.44962 dated 12th December, 2002 and was registered as a Private Company without authority to sell shares to the public.
The Mwananchi Trust Company and Chimera Company raise lots of question marks in themselves too.
The CAG report further indicates the following unsubstantiated BOT payments to MGCL:
a) 17/7/2005 File 18003 Temp f/47 US $ 95,000 to MGCL.
b) 29/0/7/2005 Allowances US $ 7,500 to MGCL without explanation.
c) 18/01/2006 Transfer to Tanzania Embassy, Kinshasa, US $, 1,500,000.= without any explanation.
It is therefore clear that there is a thick cloud around these transactions within the BOT all of which needed to be probed in detail by a statutory body in a transparent procedure. The Select Committee would not be allowed, as stated earlier on.
1:2:4: OTHER ALLEGATIONS CONCERNING BOT:
Allegations concerning the EPA have been reported by the Papers and the Government has not denied these reports. These same concern is also reported by the CAG, with much higher figures. I would like to take note in particular the Story in the Government Paper, Daily News, Issue no. 0856-3812 and 9315 of 22nd June, 2007. According to this report payments close to 30.8 billion was made to M/s Kagoda Agricultural Co. Ltd, a private Co. registered on the 29th of September, 2005 and within 8 weeks BOT had already made payments to the tune of 30.8 billion to foreign companies-through Kagoda, which companies the CAG could not identify even after contacts with their metropolitan companies in the USA, Italy, Germany, France, and Japan. I therefore needed an explanation from the Government in my Speech, and as I could not get any satisfactory reply from the Government, I this is one of the areas covered in my oral Notice for the Select Committee of the Parliament. The Government indicated that it will work in collaboration with the IMF on this matter. Yet, the Parliament is the sole Constitutional and statutory body and hence the Government reply was not satisfactory, particularly since the coverage of the Government Special Audit was limited to EPA only.
The total amount of misappropriation/loss of public funds/use of public office for corrupt purposes is said to amount to US $ 1,000,000. This is only from the identified sources and could be only a tip of the iceberg. It is therefore clear that there was need for a Select committee of the Parliament.
2: REASONS FOR THE SELECT COMMITTEE:
As it is clear, from the available records and documents the abuse, misappropriation and use of public funds contrary to Public financial Memoranda is very extensive. Secondly, any allegation against the Bank of Tanzania, involves, the Government by virtue of the nature of the Bank and its mandates. In most cases, allegations would touch on the personalities within the Government. In such a situation, no person can be a judge of himself.
3: WITH THIS BACKGROUND IS IT POSSIBLE TO
FIGHT CORRUPTION IN TANZANIA:
Having stated what has transpired in practice in the case of the BOT let us now briefly look at the various instruments that theoretically make the fight against corruption in Tanzania look possible, and in fact makes Tanzania a model country, on the right track in the process of fighting corruption. I will only attempt to venture into a few areas for purposes elucidation.
3.1: The Constitution as the basis:
Indeed Tanzanias Constitutional provisions, if properly implemented take us miles away. Art. 8(1)(a) of the Constition, specifies that The people are the source of all authority, and the government shall get all its authority from the people (literal translation). And 8(1)(c) the government shall be answerable to the people.
Article 18(b)each person has right to seek, receive and disseminate information without regard to territorial boundaries.
Article 63(2) further stipulates that the the Parliament shall be the supreme body in the United Republic of Tanzania, and shall have authority on behalf of the people to oversee and advice the Government and all its organs in the implementation of their respective responsibilities in accordance with the stipulations of this Constitutions. In the implementation of its responsibilities, Parliament shall demand from any minister any question under his responsibilitiesArt.63(3)(a).
The Member of Parliament is then indemnified in the implementation of his responsibilities, and is guaranteed full freedom of speech and debate, and that this freedom shall not be questioned any where in the United Republic, and shall not be sued for anything said or submitted in the form of a motion, private members Bill ,or any other means ( Article 100(1)(2).
These provisions create the Constitutional basis of my demand for the Select Committee.
3.2 THE PARLIAMETARY IMMUNITIES, POWERS AND
PRIVILEGES ACT, 1998 (RE)
This act amplifies and puts into operation the stated Constitutional provisions in a number of ways.
a) Sect.3 guarantees freedom of speech and debate, There shall be freedom of speech and debate in the Assembly and such freedom of speech and debate shall not be liable to be questioned in any court of place outside the Assembly (vide also Art.100 (1)(2).
b) That subject to this act, and to any statutory or other provisions regulating the disclosure of information by public officers, a member may, on request by himself, be furnished with information by the public officer concerned(Sect.10)
c) The Act provides ample power for the Parliament to be able to oversee and indeed supervise the Government if properly implemented. It provide powers to the Assembly, Sessional Committee and or any such other Committee to order any person to attend b efore the Assembly or before such committee and to give evidence or to produce any document in the possession or under the control of such person..(Sect.13 (1) (2). These are immense powers, and would have been the statutory authority for the Select Committee to probe the stated BOT alleged misappropriation/misuse of funds and elements of Corruption. In other words the Select Committee acquires Quasi-judicial powers.
d) However, all these powers, are eroded by the subsequent provisions, ..The Speaker shall have the power, subject to the Standing Orders of the Assembly, to determine whether or not any act, matter or thing is one into which the Assembly may inquire, judge and pronounce upon.( Sect. 12(2).
e) Further the Speaker shall, either of his own accord, or upon recommendation of a committee, report to the Attorney General all acts, matters or things amounting to offences under this act, This provision, prima facie, looks an unconstitutional, taken into account the Freedoms granted above. But this is the situation, and hence, most Members of Parliament are automatically silenced for fear of being reported to the Attorney General and hence being Charged for criminal offences.
f) These provisions put too much power in the hands of the Speaker, and may arbitrarily decide either way, hence watering down the spirit and the freedoms, responsibilities provided by the Constitution. This is even more precarious when the Speaker is not only an active Member of the Ruling Party, but a Member of the Central Committee, a member of the Caucus of the Members of the Ruling Party , and plays active partisanship.
3.3 THE STANDING ORDERS 2004 EDITION:
I wish to hasten that these are in the process of being amended. For the purpose of understanding the BOT debacle I will use the 2004 Edition, which is still current.
a) One of the major weakness of the current Standing Orders is that they have concentrated too much power in the Hands of the Speaker. The Speaker has power to decide/rule on any matter and may not be questioned, albeit there is a procedure for complaint, but the committee is chaired by himself, and in this case it shall be chaired by the Deputy Speaker. The report is still submitted to him though.
b) The Select Committee is provided for under Sect.104 (1)(2). The provision does not require any censureship by the Speaker. In the case it was imposed, on the instruction of the Members of the Steering Committee of the CCM-the Ruling Party. The parliamentary matters were taken outside the realm of the Parliament and decided by Leadership of a Party. The Leadership and Authority of the Parliament were only implementers of decisions originating from another authority, which is of course mixed with that of the Executive as the Chairperson of the CCM Steering Committee is the Prime Minister. A blurred vision of the Doctrine of the Separation of Powers.
c) The practice has been since this current Parliament, many decisions have been arbitrarily made by the Speaker, basing on the authority granted by Sect. 126 of the Standing Orders. However, strictly interpreted, the Speaker is only mandated by this section to make decision basing on parliamentary tradition, if and only if the matter has not been regulated by the Standing Orders. Such decisions have been the arbitrary change of Sect.81(2)(b) during the budget Session. The arbitrariness leads to loss of confidence in the parliamentary system and authority, but also issues are compromised on the basis of political affiliation and the like.
3.4 THE PREVENTION AND COMBATING OF
CORRUPTION ACT, 2007:
When this Bill was first presented it raised hope among many people. The Preamble makes a very bold statement when it says, the Government ..to ensure that Tanzania remains a corruption free state adhering to principles of freedom, equality, justice, brotherhood, peace and wherein all people are equal and every person has a right to ownership and protection of property acquired by lawful means.. It creates, a Land of Promise!
The Act has many good things. The best among them, which has been a big mouse-trap for the International Community is Sect.5(2) The Bureau shall be an independent public body. Paradoxically, no other paragraph through all the 55 sections, indicates or even alludes to this independence. At the time of drafting and passing this bill we protested vehemently against this dangerous game, but the majority made their way, the minority may have been listened to, of which I am not sure either.
There cannot be independence of the PCB when,
a) The Director General is nominated/Appointed by the President, and no prerequisites for the appointment have been statutorily postulated. No transparent procedures at the very least have been postulated for this purpose either. Nothing at the end of the day can stop full and maximum loyalty to the sole appointing authority.
b) The PCB reports directly to the President. And the only two connections with the Parliament is (i) when funds are appropriated by the Parliament (Sect.47(1) and (ii) when the Minister lays the report before National Assembly. In accordance with the Standing Orders, the Laying is not followed by automatic debate of the report, except when so demanded by an MP and supported by at least 10 MPs which is not always easy, as there is no prior notification as to the date of the laying down of the report. Most reports pass un noticed on account of this bad regulation. According to the Minister responsible, the PCB is an arm of the Government just like the Police force.
c) This is an indication of the relationship between the Government and the PCB, and hence direct contradiction with the Spirit of Section 5(2) of the ACT. The outcome is not difficult to imagine, under the circumstances. Indicators are always clear as in the case of the investigations concerning the RICHMOND Co. ltd, closed without the report being made public despite a public outcry and clear indicators of elements of corruption.
d) Similarly in the case of the BOT debacle, the PCB is alleged to have sent out a circular to all the electronic and Print media notifying them that the matter is under investigation, and that as per Sect.37 not even investigative journalism is allowed. As per this section it is even a criminal offence, bearing a fine of one hundred thousand, and or imprisonment for one year, and or both. I have been affected by this Circular as I was to make a Radio Presentation at one of the local Stations but the program was cancelled 30 minutes before the start of the program. We are indeed entering an even darker age in the fight against corruption.
e) I had presented the BOT issue in Parliament, and thenceforth a public matter. I am surprised, PCB undertaking any serious investigation, without having summoned me? Reading between the lines it is clear what this means and or leads to. The matter is up for a big cover, and this should be linked to what the Prime Minister told me on the 26th of June, 2007.
4: CHALLENGES FACED BY TANZANIAN
PARLIAMENTARIANS:
We have taken note of the legal frame work its strength and weaknesses. Let us now look briefly at the challenges facing a Tanzania Member of Parliament, who seeks to expose cases of grand corruption.
The legal framework and the parliamentary system structure are basically in place but are not basically user friendly. There are a number of reasons for this:-
4.1: The Culture of docility: Tanzanians are just coming out of single party rule ( we are just about 15 years into multi party system). The dominant culture of docility under the single party structure is still in the minds of many. When told to shut-up in the ruling party caucus, normally the CCM Members will shut up sheepishly and for a motion in parliament to succeed you need coalitions. It is not possible to build coalitions under the current system. In the case of the BOT debacle only one CCM member openly and defiantly supported the call for Select Committee. He had actually been summoned by the authorities but says he obeyed his conscience rather than the party whip. Many of these are of cause needed, but it takes a generation to make them. Courage is groomed and developed, is not only inborn.
4.2: The un-supportive and user unfriendly legal frame work: As noted above, there are very good legal provisions, in the Constitution, the principle legislation, as well as in the subsidiary legislation ( Standing Orders). But the wide use of the Claw-back provision-type render even the good provisions basically useless. These provisions are used to induce fear in the Members, and in the end they decide to shut up, quietly enjoy the luxurious benefits endowed to an MP, than the peril and tedious process of self-defence whether in the House, or through the party caucus to Party Machinery as has happened so many times to a number of those who appeared to be vocal.
4.3 The unwarranted use of the State Intelligence, in silencing such serious issues, as it happened in the case of the BOT debacle ( advice to the PM ) instead of the State Intelligence and the State Machinery supporting proper investigation and supporting committed Members in the fight against Corruption. Even such Institutions as PCB which should have been in the forefront, are Government protective machineries rather than harbingers for the war against corruption for reasons explained above. I have incidences of PCB involvement in petty issues on the Instruction of Government leaders-Regional Commissioners and District Commissioners, elsewhere rather than the real issues of corruption. And sometimes, PCB is even instructed to cook up cases, as recently happened in Karatu. Evidence could be provided, should it be needed.
4.4 The absence of clear separation of power between the Executive and the Parliament, where the Prime Minister exerts excessive control over the Parliament, either through the ruling party caucus, or directly through instructions to the Speaker. The Select Committee for BOT was withdrawn on the direct instructions by the Prime Minister. Literally to hide the truth from the parliament and hence the public, under the guise of protecting the national image. Which in my opinion is more damaging as truth is indivisible and will re-surface at some stage anyhow. But irreversible damage would have been done by then.
4.5 The effects of the Donor Praise and the Bretton Woods System of working only with the Government. The Parliament is completely in the dark when it comes to Donor or Partner funding. It is only now that some Friendly Partner countries contributing into the Direct Budget Support (DBS) are approaching the Parliament and access some information. Information is power. Parliamentarians fail in most cases to fight corruption, as the Funding arrangements, agreements, and whatever conditionalities are not known to them. It is not possible let alone, easy to Oversee something you do not know. The Budgets in Tanzania are passed generally without much critique for lack of proper information, and in some cases, direct refusal of the government to provide such necessary information for the Parliament to perform its oversight function.
Most donor countries, on visiting a few projects, come out even before a comprehensive evaluation, with huge praises of the Government performance, to the effect that the Government would not subsequently accept any internal criticism. But to our experience, most of the missions, see only tip of the mountain, and do not experience what actually happens on the ground. A Partnership with Parliament is the only way to get a balanced, and true picture of how the funds are used on the ground.
4:6 Dominance of Single Party in Parliament: The sheer numbers of the ruling party in the House is a great obstacle to any serious fight against corruption. The Members of the ruling party are instructed to defend their Government. Most of them are aware they would not have gone through if not by direct support of funds obtained from the same Government, source of which they do not know, by such other indirect ways. In fact, the Kagoda case, is a typical example, and reliable information says, that the money was taken from the Bank of Tanzania for campaign purposes ( remember 29th of September, 2005 was right in the middle of campaign for the General Elections). Hence, allegations of CCM buying voters, CCM being able to provide nation wide T-Shirts and Caps as campaign material, things very attractive to rural peasants who are struggling to buy clothing hence elements of corrupting voters).
Indeed, this makes the statement by the Intelligence, that the Government would have no satisfactory answers to these issues more plausible. Yet even International Observer Missions, who come only for a few final days of the campaign eventually declare the elections free and fair, but the process of election in Tanzania lasts about 70 days. Observing a few campaigns, actual voting in a number of stations out of over 35,000 polling stations, and counting in about the same number does not make one to make such far reaching conclusions. Consequently, whatever is said by anybody else, the Government reply is we were elected by overwhelming majority. The results are now visible. Things seem to be crumbling all over, shouts of corrupt practices abide within the CCM intra party elections. With clear evidence of what is happening within the Party, what would have prevented them from the same practice in the General Election? Once one gets in through a corrupt practice it is totally impossible to fight corruption.
With 274 MPs against 45 of the opposition. CCM is assured to pass any motion, whether for the good of the nation or otherwise, important is to protect their regime.
5: My Ordeal in Parliament and its Consequences:
As stated above, on the 16th of August, 2007 I withdrew my Motion by way of a letter to the Clerk of the Assembly, stating reasons for the same, and called a press Conference. Some explained I was worried of the similar consequences of what happened to Hon. Zitto on the 14th, of August, when he was suspended by a resolution of the Parliament.
The real reasons are:
a) Once a Motion is submitted to the Clerk of the National Assembly is not withdrawn, it is the property of the Parliament, and a Member, including the author may not debate it in any other forum until it becomes a public document- after being tabled and debated in the House. This in accordance with the Standing Order. In the circumstance, it was very clear, that the strategy adopted was to prevent it from getting into the House, and therefore, it would be permanently dead. The only solution was to withdraw and adopt other methods to continue with the fight against corruption. This is why I am now free to make this presentation. It would have been irregular, and I would have been charged for it.
b) The allegations involved are very serious, and any delay in raising alarm would cause greater harm to this nation.
c) Even if, it were to go into the House, ways and means would have been found to cover up the issues and facts and debate would go lop-sided as the Buzwagi issue was conducted, and the purposes intended would not have been achieved.
6: The Possible Consequences Personally on the Author:
Immediately after the Press Conference I received three unidentified Telephone calls, threatening my life, for poking my nose in peoples affairs. They all used hidden cell numbers under private number. When I reported to the police was asked if I had any suspect, but could not have imagined who it could be. They refused even to open a police investigation file claiming they have no way of identifying as Tanzania has no control system as yet. I reported to my Party leaders, and they had also received similar calls asking them to warn me. The Chairman, has since written a letter to the Inspector General of Police (IGP) to see to it that appropriate protections is provided, but we have not received any communication from the IGP to date. These are challenges one faces for standing for the Truth in a society where values do not count.
Could be taken to court, on made up charges, and the case would in practice never take off for years. This is a very effective means of covering up issues. It is good that the Judiciary is more and more becoming independent and is more likely to refuse such a buy out now than ever before. Yet it remains a challenge. I even received a threat from the Speaker, that I should expect a court actions should I dare to go public outside the Parliamentary system where I would have some kind of immunity.
7:0 WHAT COULD BE DONE TO KEEP THE FIGHT ON
COURSE:
This is of course the end purpose of this paper. The experiences are only meant to help solve the obtaining problem(s). In my opinion a number of things need to be urgently undertaken if the fight against grand corruption is to succeed.
7:1 Harmonisation of all Laws:
The most important strategy is:-
a) First and foremost to make a review of all the laws, including the Prevention and Combating of corruption Act, 2007. The claw-back clauses should be immediately and urgently removed to give greater effect to those positive provisions stated above. Once the claw back clauses are gone, I am sure courageous Members of Parliament will rise, and take up the challenge, as they will personally feel protected. The donor community may have an important influence in this area, albeit not a direct one.
b) To make PCB a truly Independent Institution, and accountable to the Parliament instead of the President. The Transparent system of appointing Director General of PCB should be stated in the law, and Security of Tenure established statutorily. This will assure the Independence of the Institution, and subsequently PCB shall no more be obliged to take instructions from the Government functionaries.
c) The Letter of the Law , be it Constitution, Statutory laws, and or Standing Orders should be strictly observed and the current practice of interpreting laws according situations should cease forthwith.
7:2: CREATING GREATER TRANSPARENCY IN
FUNDING ARRANGEMENTS:
Corruptions breeds where there is great secrecy. Current procedures and arrangements encourage corruption, It is my earnest appeal to all our Funding Partners, who are contributing to DBS, (around 42% of Recurrent Expenditure) and even higher percent of the Development Budget, to access all such information , if not to the Full House, at least to relevant Parliamentary Standing Committees. These will enhance the Oversight Role of the Parliament.
Increased Sessions and Interaction with the Parliament will also greatly contribute to awareness on the side of Parliamentarians. The increased information will enable the Parliamentarians to critically analyise the Government reports, expenditure as well as performance.
I believe if these basic interventions are undertaken, we shall be able to make significant step towards the fight against Corruption. The Funding Partners have a very significant role in this, and indeed have ability in pushing for these changes as a precondition for further support. The money you provide is Tax Payers money somewhere else, and I believe no Tax Payer would want his money misused. In some cases, the Donor money may not be used directly but the locally generated funds will be used for these clandestine operations, but since the donor does not know or even have full access to information on local funds would not reckon easily any misappropriation.
I thank you .
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
RESISTING CORRUPTION AND BREAKING RANKS THE PRICE YOU PAY IN TANZANIA
The Experiences with Taking dissent in Tanzania and the
Debacle around the Bank of Tanzania (BOT):
(By Dr. Willibrod Peter Slaa, (MP), Karatu Constituency🙂
Paper Presented at the Workshop for U4Workshop- 19th September, 2007,
AT CORAL BEACH HOTEL, DAR-ES-SALAAM:
1:O INTRODUCTION:
This is the final presentation in our workshop. It looks analytically at the possibilities of Resisting Corruption within the frame work of the abundant legal and policy instruments as well as the price one pays in breaking ranks with the system.
This presentation also looks at experiences of taking dissent in Tanzania, their consequences and thus indicating what is actually happening on the ground despite the many constitutional, legal instruments and beautiful words and promises that are being made by the authorities.
1.1 SUMMARY OF FACTS: The CASE of BOT:
On the 25th of June, in my main Speech as Shadow Minister, Office of the Prime Minister, I demanded explanation from the Government concerning various obtaining and indeed widely circulated reports of misappropriation/misuse of public funds and or elements of corruption at the BOT. Immediately after My Speech, I was summoned by the Hon. Prime Minister, in the Speakers Lounge, and was requested not to pursue these matters as they would greatly tarnish the image of our Nation. My position was that to the contrary we would be more credible and trustworthy if these charges were properly and transparently investigated. The Parliament likewise would be a credible and independent Institution it deserves. However, after around 40 minutes we agreed to differ. The Government did not only give satisfactory answers, but came up with contradictory statements through Statements of the Minister for Finance as well as the Minister for Energy and Natural Resources, during the week, before the winding up of the Prime Ministers Budget. Latter, during the week, at the Appropriation Committee of the Full House, I gave an oral notice that I intend to bring a private motion for the appointment of a Parliamentary Select Committee as per sect.104(1) and (2) of the Standing Orders, to investigate the veracity of those reports, as well as to prove the accuracy of the statements made by the two Ministers. This is the only avenue open to a backbencher, in accordance with the Parliamentary procedures .
On the 26th of June, I submitted my notice officially in writing as per requirement of section (2) of the Standing Orders. Detailed statement was submitted after thorough research to the Clerk of the National Assembly on the 8th of August, 2007 as per the requirement of the same provision of the Standing Order.
In the morning of the 13th of August a special seating of the Steering Committee of the CCM caucus consisting of Central Committee Members in the House was convened in the Office of the Speaker. Membership of this Committee Comprises of the Prime Minister, the Speaker, Secretary General of CCM (also MP), the Publicity Secretary-CCM (also MP), the Deputy Speaker. In other words, all MPs members of the Central Committee of CCM ).
Reliable information from this meeting indicates that the two Private Motions, one of Zitto Kabwe, and the other of Dr. Slaa, were the subject of discussion. The meeting went on for over four hours.
On the 13th of August, I received a letter from the Office of the Speaker, ref. CA.150/277/01/07 demanding that I submit evidence to support my motion so that the Speaker may satisfy himself before the motion is scheduled for debate. I submitted all the evidence in 1V volumes the same evening of the 13th of August, with a three- page summary indicating the source of the relevant documentary evidence.
However, in the morning of the 15th of August, I was brought a copy of a letter dated 30th of July, 2007 to Intelligence Officer in Dodoma, purportedly from the Intelligence Head Office in Dar. I studied the letter and the attachments and was convinced that it is a trustworthy document. It had as an attachment an Audit Document from the CAG, which I am using to build my case on. The letter was meant to advice the PM to block my Motion from being presented in the House, as it raises issues that the Government has no satisfactory answers, since the basis of the allegations are the findings of CAG.
From this, and with the background of the Steering Committee meeting that had taken place on the 13th I concluded that the letter of the Speaker on the 13th was in fact an implementation of this letter. I still decided to give the office of the Speaker benefit of doubt, but until morning of the 16th there was no indication that the motion would be scheduled at all. I therefore, on the 16th of August decided to withdraw my Motion in accordance with provisions of section 48 of the Standing Orders.
With this background let us now look at a few issues in my Private Motion for which a Select Committee was to be established:-
1:2 ALLEGATIONS OF MISUSE OF PUBLIC FUNDS/USE OF FUNDS
CONTRARY TO FINANCIAL PROCEDURES :
1:2.1 BOT PAYING TSHS 155 BILLION IN RESPECT OF
DEBTS OF MEREMETA (GOLD) CO.LTD:
Since 1998 we have been following up in Parliament various issues concerning this company, reported in the House to be a corporation sole, under the Tanzania Armed Forces, and the proceeds of which would be used to finance the mass production of the Nyumbu trucks manufactured by JWTZ. However, since then there has been no transparency, and no reports concerning this company were ever presented to the House, despite the many questions we raised( vide Hansard Reports since 1998). During the Budget Session 2006/2007 the Government admitted this co was under liquidation. We needed more details and none was supplied.
In short, the Government could not provide satisfactory answers as to who are the shareholders, the directors, where Meremeta is registered, where the accounts of Meremeta are audited, and where the income from Meremeta appears in the Revunue books of the Government!
This 2007/2008 Budget session, in reply to my speech, the Minister for Energy and Minerals, reiterated that Meremeta has been under liquidation and all properties of Meremeta Transferred to another company, TANGOLD ltd, a 100% Government owned company. Yet when we demanded where TANGOLD is registered, who are the directors, where are the accounts and why TANGOLD did not future anywhere in the Budget speech of the Minister, we could still not get any response from the Government.
My independent research uncovered the following:
(i)That, Meremeta Gold Co.Ltd was registered in the UK as an Offshore Co. with Registration na. 3424504 being registered as a Private Co. It has a certificate of Registration issued by Registrar of Companies in London issued on the 19th August, 1997. It was then registered in Tanzania as a branch of foreign company on the 3rd of October, 1997 obtaining Certificate of Compliance na. 32755. My search further indicates that Registrar of Treasury holds only 50% of the shares in Meremeta and the other 50% is owned by a South African Trienex (PTY) Co.Ltd. The available documents further reveal that two London based companies i.e. London Law Services Ltd and London Law Secretarial Service Ltd have one share each.
a) A number of serious issues are raised by these findings?
(i) Why would the Government of Tanzania hide all this information from the Parliament ?
(ii) How many shares does Meremeta have? Simple mathematics indicate that there is something fishy about this whole affair particular with the no of shares.
(iii) Why should Meremeta be registered as an Offshore company? Gold is in Tanzania, the JWTZ is a Tanzanian Defence Force what is being camoufladged? This is even more complex as the other main shareholder is South African.
(iv) Who exactly are these London Law Services and London Law Secretarial Services Ltd? What would a law firm have to do with gold mining?
(v) Meremeta was registered in 1997. According to records it ought to be making its returns 30th September every year. No returns are available in Dar, and no official Audit has ever been conducted. In fact, Alex Stewart Evaluation reports that Meremeta had refused to be audited by them on the pretext that it is a Government company. How is this explained?
(vi) Meremeta is registered as a Private Co. how much has it ever paid to the Government in Taxes?
(vii) How much profit has been realized since the establishment of this company, and how much has Tanzania benefited as a country and or NYUMBU directly.
(viii) The Budget Speech 2006/7 indicates that in the Financial year 2006/2007 Meremeta output was 2.7 Tons of Gold, if Meremeta was actually liquidated how then is this explained?
(ix) After-all is the Parliament no entitled to proper answers to all these legitimate questions on behalf of the People of Tanzania?
ii) Yet , with all these questions unanswered, the Controller and Auditor Generals ( CAG) report (BOT audited Accounts) of ending 30th June, 2006 (after liquidation) that BOT paid Meremeta debts to the tune of Tshs 155 Billion as follows: US $ 118,396460.36 to un unknown account of Nedbank Ltd of South Africa through HSB of New York. The Balance of US $ 13,736,628.73 was paid to TANGOLD account with NBC Corporate Branch Dar-Es-Salaam. This raises further questions:-
a) How is it that such a huge sum could be paid without Parliament being notified, and or such important information being deliberated be refused to be given peoples representatives?
b) From the shareholding, it is clear that Tanzania has only 50% of the shares, (if the mathematics is correct), why is it that the full amount of the Meremeta debt was to be carried only by BOT? Or otherwise, what percentage of this debt BOT actually covered on behalf of Tanzania?
These issues needed to be probed, and the only statutory authority for this work would be the Select Committee of the Parliament as per Section 104 (1) and (2). This is also in fulfillment of the Constitutional requirement of the powers of the Parliament, Art.63(2)3ab.
1:2:2: TANGOLD LTD:
As stated above, The Parliament was given scanty information about TANGOLD. My investigation further revealed the following:
a) That TANGOLD Ltd, is a foreign registered Co. It was registered again as an offshore co. in Mauritus with Registration na. C 205006121 dated 8th April, 2005 and subsequently registered in Tanzania as a branch of foreign company and got Certificate of Compliance na. 55661 dated 20th February, 2006.
b) That the Memorandum and Articles of Association do not show in any of the articles or even by implication, that TANGOLD is a Government owned company.
c) Section 7 of the Memorandum and Articles is even more shocking. It indicates that the shares may be transferred to members of the Family of the Shareholders that is father, mother, wife, children. This construction in a memorandum of a company belonging 100% to the Government seems not only odd but strange.
d) TANGOLD Co.ltd was registered in 2005. No returns and or Audited accounts have been submitted to date. These raise serious issues of concern. We have seen above, that BOT already paid the sum of US $ 13,736,628.73 from Public coffers. The nation, through its representatives needs to know what this money was for. The Nation needs to know the activities of this company said to belong to the Government of Tanzania, if indeed it does belong to the Government. The Parliament needs to know to what extent this company has been of benefit to our country, and how much has been paid in taxes if any! If not why?
e) My further investigation of the BRELA FORMS indicates that in all the relevant forms and returns, no where do the Directors register themselves as representatives of the Government, albeit, their directorship elsewhere is stated accordingly. This is very shocking for a company purported to belong 100% to the Government.
f) The Registrar of Treasury, who owns in trust all Government property does not appear anywhere in the statutory documents of this Company, a matter raising serious concern.
Hence, a solid ground motivating me to demand for the establishment of a Select Committee of the Parliament to probe on these pending and unresolved issues.
1:2:3 BOT PAYMENTS TO MWANANCHI GOLD CO.LTD.
(IRREGULAR PAYMENTS):
Mwananchi Gold Co.Ltd. (MGCL), unlike Meremeta and TANGOLD is a locally registered Private Company. In the Financial years 2004/2005 and 2006/2007 BOT effected total payment of US $ 5,512,398.55. I have no problem BOT making payments to private companies. I am concerned with the irregularities in the payments. CAG Management letter, indicates that up to 21st December 2006, MGCL had an outstanding payment of US $ 62,847.91, equivalent to 78,753,459.in the form interest for loan advances. According to the auditors the interest was to have been paid in the first six months. Yet, 18 months later, no single cent had been paid and the BOT had not moved in to take any attachments or properties. This is a serious irregularity.
Further a loan of US $, 2,807,920, appears as per CAG report to have been secured by raw gold purchased with the same loan funds. This transaction is nor usual.
BRELA reports indicate that BOT holds 500 shares in MGCL and NDC- a Government parastatal holds 375 shares. Other Private companies by the names of Mwananchi Trust Company Ltd holds 1,123 and Chimera Co.ltd with 500 shares respectively. MGCL was registered and got certificate of Registration na.44962 dated 12th December, 2002 and was registered as a Private Company without authority to sell shares to the public.
The Mwananchi Trust Company and Chimera Company raise lots of question marks in themselves too.
The CAG report further indicates the following unsubstantiated BOT payments to MGCL:
a) 17/7/2005 File 18003 Temp f/47 US $ 95,000 to MGCL.
b) 29/0/7/2005 Allowances US $ 7,500 to MGCL without explanation.
c) 18/01/2006 Transfer to Tanzania Embassy, Kinshasa, US $, 1,500,000.= without any explanation.
It is therefore clear that there is a thick cloud around these transactions within the BOT all of which needed to be probed in detail by a statutory body in a transparent procedure. The Select Committee would not be allowed, as stated earlier on.
1:2:4: OTHER ALLEGATIONS CONCERNING BOT:
Allegations concerning the EPA have been reported by the Papers and the Government has not denied these reports. These same concern is also reported by the CAG, with much higher figures. I would like to take note in particular the Story in the Government Paper, Daily News, Issue no. 0856-3812 and 9315 of 22nd June, 2007. According to this report payments close to 30.8 billion was made to M/s Kagoda Agricultural Co. Ltd, a private Co. registered on the 29th of September, 2005 and within 8 weeks BOT had already made payments to the tune of 30.8 billion to foreign companies-through Kagoda, which companies the CAG could not identify even after contacts with their metropolitan companies in the USA, Italy, Germany, France, and Japan. I therefore needed an explanation from the Government in my Speech, and as I could not get any satisfactory reply from the Government, I this is one of the areas covered in my oral Notice for the Select Committee of the Parliament. The Government indicated that it will work in collaboration with the IMF on this matter. Yet, the Parliament is the sole Constitutional and statutory body and hence the Government reply was not satisfactory, particularly since the coverage of the Government Special Audit was limited to EPA only.
The total amount of misappropriation/loss of public funds/use of public office for corrupt purposes is said to amount to US $ 1,000,000. This is only from the identified sources and could be only a tip of the iceberg. It is therefore clear that there was need for a Select committee of the Parliament.
2: REASONS FOR THE SELECT COMMITTEE:
As it is clear, from the available records and documents the abuse, misappropriation and use of public funds contrary to Public financial Memoranda is very extensive. Secondly, any allegation against the Bank of Tanzania, involves, the Government by virtue of the nature of the Bank and its mandates. In most cases, allegations would touch on the personalities within the Government. In such a situation, no person can be a judge of himself.
3: WITH THIS BACKGROUND IS IT POSSIBLE TO
FIGHT CORRUPTION IN TANZANIA:
Having stated what has transpired in practice in the case of the BOT let us now briefly look at the various instruments that theoretically make the fight against corruption in Tanzania look possible, and in fact makes Tanzania a model country, on the right track in the process of fighting corruption. I will only attempt to venture into a few areas for purposes elucidation.
3.1: The Constitution as the basis:
Indeed Tanzanias Constitutional provisions, if properly implemented take us miles away. Art. 8(1)(a) of the Constition, specifies that The people are the source of all authority, and the government shall get all its authority from the people (literal translation). And 8(1)(c) the government shall be answerable to the people.
Article 18(b)each person has right to seek, receive and disseminate information without regard to territorial boundaries.
Article 63(2) further stipulates that the the Parliament shall be the supreme body in the United Republic of Tanzania, and shall have authority on behalf of the people to oversee and advice the Government and all its organs in the implementation of their respective responsibilities in accordance with the stipulations of this Constitutions. In the implementation of its responsibilities, Parliament shall demand from any minister any question under his responsibilitiesArt.63(3)(a).
The Member of Parliament is then indemnified in the implementation of his responsibilities, and is guaranteed full freedom of speech and debate, and that this freedom shall not be questioned any where in the United Republic, and shall not be sued for anything said or submitted in the form of a motion, private members Bill ,or any other means ( Article 100(1)(2).
These provisions create the Constitutional basis of my demand for the Select Committee.
3.2 THE PARLIAMETARY IMMUNITIES, POWERS AND
PRIVILEGES ACT, 1998 (RE)
This act amplifies and puts into operation the stated Constitutional provisions in a number of ways.
a) Sect.3 guarantees freedom of speech and debate, There shall be freedom of speech and debate in the Assembly and such freedom of speech and debate shall not be liable to be questioned in any court of place outside the Assembly (vide also Art.100 (1)(2).
b) That subject to this act, and to any statutory or other provisions regulating the disclosure of information by public officers, a member may, on request by himself, be furnished with information by the public officer concerned(Sect.10)
c) The Act provides ample power for the Parliament to be able to oversee and indeed supervise the Government if properly implemented. It provide powers to the Assembly, Sessional Committee and or any such other Committee to order any person to attend b efore the Assembly or before such committee and to give evidence or to produce any document in the possession or under the control of such person..(Sect.13 (1) (2). These are immense powers, and would have been the statutory authority for the Select Committee to probe the stated BOT alleged misappropriation/misuse of funds and elements of Corruption. In other words the Select Committee acquires Quasi-judicial powers.
d) However, all these powers, are eroded by the subsequent provisions, ..The Speaker shall have the power, subject to the Standing Orders of the Assembly, to determine whether or not any act, matter or thing is one into which the Assembly may inquire, judge and pronounce upon.( Sect. 12(2).
e) Further the Speaker shall, either of his own accord, or upon recommendation of a committee, report to the Attorney General all acts, matters or things amounting to offences under this act, This provision, prima facie, looks an unconstitutional, taken into account the Freedoms granted above. But this is the situation, and hence, most Members of Parliament are automatically silenced for fear of being reported to the Attorney General and hence being Charged for criminal offences.
f) These provisions put too much power in the hands of the Speaker, and may arbitrarily decide either way, hence watering down the spirit and the freedoms, responsibilities provided by the Constitution. This is even more precarious when the Speaker is not only an active Member of the Ruling Party, but a Member of the Central Committee, a member of the Caucus of the Members of the Ruling Party , and plays active partisanship.
3.3 THE STANDING ORDERS 2004 EDITION:
I wish to hasten that these are in the process of being amended. For the purpose of understanding the BOT debacle I will use the 2004 Edition, which is still current.
a) One of the major weakness of the current Standing Orders is that they have concentrated too much power in the Hands of the Speaker. The Speaker has power to decide/rule on any matter and may not be questioned, albeit there is a procedure for complaint, but the committee is chaired by himself, and in this case it shall be chaired by the Deputy Speaker. The report is still submitted to him though.
b) The Select Committee is provided for under Sect.104 (1)(2). The provision does not require any censureship by the Speaker. In the case it was imposed, on the instruction of the Members of the Steering Committee of the CCM-the Ruling Party. The parliamentary matters were taken outside the realm of the Parliament and decided by Leadership of a Party. The Leadership and Authority of the Parliament were only implementers of decisions originating from another authority, which is of course mixed with that of the Executive as the Chairperson of the CCM Steering Committee is the Prime Minister. A blurred vision of the Doctrine of the Separation of Powers.
c) The practice has been since this current Parliament, many decisions have been arbitrarily made by the Speaker, basing on the authority granted by Sect. 126 of the Standing Orders. However, strictly interpreted, the Speaker is only mandated by this section to make decision basing on parliamentary tradition, if and only if the matter has not been regulated by the Standing Orders. Such decisions have been the arbitrary change of Sect.81(2)(b) during the budget Session. The arbitrariness leads to loss of confidence in the parliamentary system and authority, but also issues are compromised on the basis of political affiliation and the like.
3.4 THE PREVENTION AND COMBATING OF
CORRUPTION ACT, 2007:
When this Bill was first presented it raised hope among many people. The Preamble makes a very bold statement when it says, the Government ..to ensure that Tanzania remains a corruption free state adhering to principles of freedom, equality, justice, brotherhood, peace and wherein all people are equal and every person has a right to ownership and protection of property acquired by lawful means.. It creates, a Land of Promise!
The Act has many good things. The best among them, which has been a big mouse-trap for the International Community is Sect.5(2) The Bureau shall be an independent public body. Paradoxically, no other paragraph through all the 55 sections, indicates or even alludes to this independence. At the time of drafting and passing this bill we protested vehemently against this dangerous game, but the majority made their way, the minority may have been listened to, of which I am not sure either.
There cannot be independence of the PCB when,
a) The Director General is nominated/Appointed by the President, and no prerequisites for the appointment have been statutorily postulated. No transparent procedures at the very least have been postulated for this purpose either. Nothing at the end of the day can stop full and maximum loyalty to the sole appointing authority.
b) The PCB reports directly to the President. And the only two connections with the Parliament is (i) when funds are appropriated by the Parliament (Sect.47(1) and (ii) when the Minister lays the report before National Assembly. In accordance with the Standing Orders, the Laying is not followed by automatic debate of the report, except when so demanded by an MP and supported by at least 10 MPs which is not always easy, as there is no prior notification as to the date of the laying down of the report. Most reports pass un noticed on account of this bad regulation. According to the Minister responsible, the PCB is an arm of the Government just like the Police force.
c) This is an indication of the relationship between the Government and the PCB, and hence direct contradiction with the Spirit of Section 5(2) of the ACT. The outcome is not difficult to imagine, under the circumstances. Indicators are always clear as in the case of the investigations concerning the RICHMOND Co. ltd, closed without the report being made public despite a public outcry and clear indicators of elements of corruption.
d) Similarly in the case of the BOT debacle, the PCB is alleged to have sent out a circular to all the electronic and Print media notifying them that the matter is under investigation, and that as per Sect.37 not even investigative journalism is allowed. As per this section it is even a criminal offence, bearing a fine of one hundred thousand, and or imprisonment for one year, and or both. I have been affected by this Circular as I was to make a Radio Presentation at one of the local Stations but the program was cancelled 30 minutes before the start of the program. We are indeed entering an even darker age in the fight against corruption.
e) I had presented the BOT issue in Parliament, and thenceforth a public matter. I am surprised, PCB undertaking any serious investigation, without having summoned me? Reading between the lines it is clear what this means and or leads to. The matter is up for a big cover, and this should be linked to what the Prime Minister told me on the 26th of June, 2007.
4: CHALLENGES FACED BY TANZANIAN
PARLIAMENTARIANS:
We have taken note of the legal frame work its strength and weaknesses. Let us now look briefly at the challenges facing a Tanzania Member of Parliament, who seeks to expose cases of grand corruption.
The legal framework and the parliamentary system structure are basically in place but are not basically user friendly. There are a number of reasons for this:-
4.1: The Culture of docility: Tanzanians are just coming out of single party rule ( we are just about 15 years into multi party system). The dominant culture of docility under the single party structure is still in the minds of many. When told to shut-up in the ruling party caucus, normally the CCM Members will shut up sheepishly and for a motion in parliament to succeed you need coalitions. It is not possible to build coalitions under the current system. In the case of the BOT debacle only one CCM member openly and defiantly supported the call for Select Committee. He had actually been summoned by the authorities but says he obeyed his conscience rather than the party whip. Many of these are of cause needed, but it takes a generation to make them. Courage is groomed and developed, is not only inborn.
4.2: The un-supportive and user unfriendly legal frame work: As noted above, there are very good legal provisions, in the Constitution, the principle legislation, as well as in the subsidiary legislation ( Standing Orders). But the wide use of the Claw-back provision-type render even the good provisions basically useless. These provisions are used to induce fear in the Members, and in the end they decide to shut up, quietly enjoy the luxurious benefits endowed to an MP, than the peril and tedious process of self-defence whether in the House, or through the party caucus to Party Machinery as has happened so many times to a number of those who appeared to be vocal.
4.3 The unwarranted use of the State Intelligence, in silencing such serious issues, as it happened in the case of the BOT debacle ( advice to the PM ) instead of the State Intelligence and the State Machinery supporting proper investigation and supporting committed Members in the fight against Corruption. Even such Institutions as PCB which should have been in the forefront, are Government protective machineries rather than harbingers for the war against corruption for reasons explained above. I have incidences of PCB involvement in petty issues on the Instruction of Government leaders-Regional Commissioners and District Commissioners, elsewhere rather than the real issues of corruption. And sometimes, PCB is even instructed to cook up cases, as recently happened in Karatu. Evidence could be provided, should it be needed.
4.4 The absence of clear separation of power between the Executive and the Parliament, where the Prime Minister exerts excessive control over the Parliament, either through the ruling party caucus, or directly through instructions to the Speaker. The Select Committee for BOT was withdrawn on the direct instructions by the Prime Minister. Literally to hide the truth from the parliament and hence the public, under the guise of protecting the national image. Which in my opinion is more damaging as truth is indivisible and will re-surface at some stage anyhow. But irreversible damage would have been done by then.
4.5 The effects of the Donor Praise and the Bretton Woods System of working only with the Government. The Parliament is completely in the dark when it comes to Donor or Partner funding. It is only now that some Friendly Partner countries contributing into the Direct Budget Support (DBS) are approaching the Parliament and access some information. Information is power. Parliamentarians fail in most cases to fight corruption, as the Funding arrangements, agreements, and whatever conditionalities are not known to them. It is not possible let alone, easy to Oversee something you do not know. The Budgets in Tanzania are passed generally without much critique for lack of proper information, and in some cases, direct refusal of the government to provide such necessary information for the Parliament to perform its oversight function.
Most donor countries, on visiting a few projects, come out even before a comprehensive evaluation, with huge praises of the Government performance, to the effect that the Government would not subsequently accept any internal criticism. But to our experience, most of the missions, see only tip of the mountain, and do not experience what actually happens on the ground. A Partnership with Parliament is the only way to get a balanced, and true picture of how the funds are used on the ground.
4:6 Dominance of Single Party in Parliament: The sheer numbers of the ruling party in the House is a great obstacle to any serious fight against corruption. The Members of the ruling party are instructed to defend their Government. Most of them are aware they would not have gone through if not by direct support of funds obtained from the same Government, source of which they do not know, by such other indirect ways. In fact, the Kagoda case, is a typical example, and reliable information says, that the money was taken from the Bank of Tanzania for campaign purposes ( remember 29th of September, 2005 was right in the middle of campaign for the General Elections). Hence, allegations of CCM buying voters, CCM being able to provide nation wide T-Shirts and Caps as campaign material, things very attractive to rural peasants who are struggling to buy clothing hence elements of corrupting voters).
Indeed, this makes the statement by the Intelligence, that the Government would have no satisfactory answers to these issues more plausible. Yet even International Observer Missions, who come only for a few final days of the campaign eventually declare the elections free and fair, but the process of election in Tanzania lasts about 70 days. Observing a few campaigns, actual voting in a number of stations out of over 35,000 polling stations, and counting in about the same number does not make one to make such far reaching conclusions. Consequently, whatever is said by anybody else, the Government reply is we were elected by overwhelming majority. The results are now visible. Things seem to be crumbling all over, shouts of corrupt practices abide within the CCM intra party elections. With clear evidence of what is happening within the Party, what would have prevented them from the same practice in the General Election? Once one gets in through a corrupt practice it is totally impossible to fight corruption.
With 274 MPs against 45 of the opposition. CCM is assured to pass any motion, whether for the good of the nation or otherwise, important is to protect their regime.
5: My Ordeal in Parliament and its Consequences:
As stated above, on the 16th of August, 2007 I withdrew my Motion by way of a letter to the Clerk of the Assembly, stating reasons for the same, and called a press Conference. Some explained I was worried of the similar consequences of what happened to Hon. Zitto on the 14th, of August, when he was suspended by a resolution of the Parliament.
The real reasons are:
a) Once a Motion is submitted to the Clerk of the National Assembly is not withdrawn, it is the property of the Parliament, and a Member, including the author may not debate it in any other forum until it becomes a public document- after being tabled and debated in the House. This in accordance with the Standing Order. In the circumstance, it was very clear, that the strategy adopted was to prevent it from getting into the House, and therefore, it would be permanently dead. The only solution was to withdraw and adopt other methods to continue with the fight against corruption. This is why I am now free to make this presentation. It would have been irregular, and I would have been charged for it.
b) The allegations involved are very serious, and any delay in raising alarm would cause greater harm to this nation.
c) Even if, it were to go into the House, ways and means would have been found to cover up the issues and facts and debate would go lop-sided as the Buzwagi issue was conducted, and the purposes intended would not have been achieved.
6: The Possible Consequences Personally on the Author:
Immediately after the Press Conference I received three unidentified Telephone calls, threatening my life, for poking my nose in peoples affairs. They all used hidden cell numbers under private number. When I reported to the police was asked if I had any suspect, but could not have imagined who it could be. They refused even to open a police investigation file claiming they have no way of identifying as Tanzania has no control system as yet. I reported to my Party leaders, and they had also received similar calls asking them to warn me. The Chairman, has since written a letter to the Inspector General of Police (IGP) to see to it that appropriate protections is provided, but we have not received any communication from the IGP to date. These are challenges one faces for standing for the Truth in a society where values do not count.
Could be taken to court, on made up charges, and the case would in practice never take off for years. This is a very effective means of covering up issues. It is good that the Judiciary is more and more becoming independent and is more likely to refuse such a buy out now than ever before. Yet it remains a challenge. I even received a threat from the Speaker, that I should expect a court actions should I dare to go public outside the Parliamentary system where I would have some kind of immunity.
7:0 WHAT COULD BE DONE TO KEEP THE FIGHT ON
COURSE:
This is of course the end purpose of this paper. The experiences are only meant to help solve the obtaining problem(s). In my opinion a number of things need to be urgently undertaken if the fight against grand corruption is to succeed.
7:1 Harmonisation of all Laws:
The most important strategy is:-
a) First and foremost to make a review of all the laws, including the Prevention and Combating of corruption Act, 2007. The claw-back clauses should be immediately and urgently removed to give greater effect to those positive provisions stated above. Once the claw back clauses are gone, I am sure courageous Members of Parliament will rise, and take up the challenge, as they will personally feel protected. The donor community may have an important influence in this area, albeit not a direct one.
b) To make PCB a truly Independent Institution, and accountable to the Parliament instead of the President. The Transparent system of appointing Director General of PCB should be stated in the law, and Security of Tenure established statutorily. This will assure the Independence of the Institution, and subsequently PCB shall no more be obliged to take instructions from the Government functionaries.
c) The Letter of the Law , be it Constitution, Statutory laws, and or Standing Orders should be strictly observed and the current practice of interpreting laws according situations should cease forthwith.
7:2: CREATING GREATER TRANSPARENCY IN
FUNDING ARRANGEMENTS:
Corruptions breeds where there is great secrecy. Current procedures and arrangements encourage corruption, It is my earnest appeal to all our Funding Partners, who are contributing to DBS, (around 42% of Recurrent Expenditure) and even higher percent of the Development Budget, to access all such information , if not to the Full House, at least to relevant Parliamentary Standing Committees. These will enhance the Oversight Role of the Parliament.
Increased Sessions and Interaction with the Parliament will also greatly contribute to awareness on the side of Parliamentarians. The increased information will enable the Parliamentarians to critically analyise the Government reports, expenditure as well as performance.
I believe if these basic interventions are undertaken, we shall be able to make significant step towards the fight against Corruption. The Funding Partners have a very significant role in this, and indeed have ability in pushing for these changes as a precondition for further support. The money you provide is Tax Payers money somewhere else, and I believe no Tax Payer would want his money misused. In some cases, the Donor money may not be used directly but the locally generated funds will be used for these clandestine operations, but since the donor does not know or even have full access to information on local funds would not reckon easily any misappropriation.
I thank you .
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx