The big question in Tanzania executives checks and balances

Saturday November 9 2019

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By Khalifa Said @ThatBoyKhalifax ksaid@tz.nationmedia.com

Dar es Salaam. Recently appointed Controller and Auditor General (CAG) Charles Kichere has his job clearly cut out. With a raft of directives from the President over his new job, and the public’s expectation of his office’s constitutional mandate, the CAG would be treading a thin ground of accountability.

Does he do the President’s bidding? What about the low confidence with which the public has viewed his assumption of office following the unceremonious exit of his predecessor Prof Mussa Assad?

These are not easy questions. Not any easier to the man whose very undertaking is to hold his appointing authority to account. Only time can tell which path Mr Kichere chooses, but his predicament is only one of the symptoms of Tanzania’s apparent trouble with the executives’ checks and balance equation.

As a constitutional office, the CAG is among the valves the public could rely on to question the unfettered powers of the government. But recent happenings that likely denied Prof Assad a second term in office leaves a lot to be desired.

Parliament, Judiciary and other such bodies as the Commission for Human Rights and Good Governance also play critical roles in upholding the virtues of good governance. Coupled with a free press and a thriving Civil Society, a well-functioning mix of both the constitutional and non-constitutional systems of political accountability testifies to the maturity and civility of the people as a nation.

In Tanzania, the growing debate now is whether the constitutional safeguards are enough and if one arm of the government is not overreaching itself at the expense of accountability and good governance.

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Experts in the field of public administration say there is genuine cause of concern about a government interested in overshadowing all constitutional and non-constitutional accountability mechanisms. There is fear that the concept of “public watchdog” may be fast losing steam as is the decline in the democratic space.

Judiciary and Parliament

The co-option of oversight institutions such as Parliament, the Judiciary, the media, the opposition parties, civil society organisations (CSOs), and others has been interpreted as a demonstration of the executives’ implicit but felt resolve to have a free reign in “efforts to bring development to the people.”

Media censorship, political opposition’s disorientation, CSOs inability to even hold a press conference, the national human rights watchdog not investigating any complaints for it has been passive since November 2017, the Judiciary’s suspension of a prominent advocate for challenging the appointment of the attorney general and Parliament’s kowtowing to the executive are among the telltale signs.

A vocal critic of the government, Mr Zitto Kabwe, says Tanzanians needed to re-evaluate the direction they wanted to take to safeguard the larger public good. “For now there is little faith in the judiciary and parliament as independent arms of the State,” he told The Citizen.

Mr Kabwe who is the leader of ACT Wazalendo Party said the bungled local government elections process that has forced out his party and Chadema explains the resolve by what he said was a clique in government to only raise one voice and stifle others.

Neither Speaker of Parliament nor the Chief Justice could be reached for comment on the state of affairs in their respective institutions. However, they’re both on record affirming their independence. Both Speaker Job Ndugai and CJ Prof Ibrahim Juma have always maintained that their organs will freely exercise their powers, with Ndugai even summoning former CAG Prof Assad for grilling over his “Parliament is weak” remarks.

Asked what the government would do to ensure effective governance and accountability, Good Governance Minister George Mkuchika said there is no governance challenge in Tanzania. “You can verify it yourself by researching how we are ranked in terms of governance by such institutions as Transparency International, Repoa, and Twaweza. Go and see what the world has got to say about it,” he told The Citizen in an interview.

CCM last resort

Some commentators have suggested that the ruling Chama cha Mapinduzi (CCM) should step in to fill the vacuum. A public administration expert who requested for anonymity said given the current political situation, CCM would be the last resort to safeguard the public’s wellbeing and enforce government accountability.

“The key stakeholder that is disappointing us is the ruling party. It is very weak in the area of rebuking and directing the executive. CCM would be the last line of defence in an environment like ours where all other actors have their assessments distrusted or their power strangulated,” said the source, whose fear of naming represents the prevailing fear to freely express oneself.

But it is futile to expect CCM to hold its own government to account, according to former Tanganyika Law Society (TLS) president Fatma Karume. Ms Karume noted that CCM did away with all requisite mechanisms and personalities who would help to keep the executive under check through recent sweeping reforms of the party’s constitution.

“As chairman of CCM, President Magufuli has reversed some safeguards introduced by his predecessor Jakaya Kikwete but has entrenched his powers within the party’ Central Committee,” wrote the outspoken lawyer in an earlier article to The Citizen. Ms Karume was recently locked out from practising law in Tanzania mainland over her alleged “misconduct” in a submission for a High Court case challenging Dr Magufuli’s appointment of Prof Adelardus Kilangi as Attorney General. Ms Karume was representing opposition ACT-Wazalendo’s Ado Shaibu who argued the AG was not qualified to hold the post.

CCM’s secretary for Political and International Affairs Ngemela Lubinga, however, said the party never ceased to check on government, adding that CCM’s Central Committee and National Executive Committee (NEC) meetings are organised specifically for that purpose.

“And as far as we are concerned, the government is on the right path. “The appointment of the US ambassador to Tanzania, a country that was still doubting Tanzania’s approach to governance, is one of the things that can attest to our party’s stance,” he noted.

Former University of Dar es Salaam professor of public administration Benson Bana warns that checks and balance should not be confused with confrontation, dismissing the idea that there is no one to check on President Magufuli as simply an exaggeration.

“I think we can all agree that under this administration we have seen unprecedented cooperation of the three arms of the State in the pursuit of building a healthy and prosperous nation,” noted Prof Bana. He said the good relationship does not mean they do not hold each other accountable

President’s powers

But the issue of weak checks and balance is not exclusively a problem under the Magufuli administration. Some constitutional experts think that the problem is more of an institutional malaise rather than a mere personal weakness.

Constitutional lawyer and human rights lawyer Daniel Marari writes in a 2015 article published in ConstitutionNet, that checks and balances in Tanzania are hindered by the excessive powers that have been vested to the President by the 1977 constitution.

“While the President should certainly not be entirely deprived of a government appointment powers, he should not possess extensive personal and formal control of other governmental institutions at the risk of undermining their autonomy and effectiveness” highlighted Mr Marari in the piece critiquing the then proposed new constitution. “Checks and balances are crucial to democratic stability and protecting fundamental rights.”

While Prof Bana agrees that this is true to some extent, he nevertheless thinks that excessive powers vested on the President are somehow justifiable, considering the infancy of both the statehood of Tanzania in general. “Given the immaturity of our nation, we sometimes need an executive president with the legal power to intervene on anything when convinced that the national interests are at stake.” He offered that the people can petition for constitutional changes.

Legal and Constitutional Affairs minister Dr Augustine Mahiga said the debate around checks and balances was a “complex issue.”

“It’s not an issue that I can speak about as an individual minister. It’s a policy issue, a systematic issue that would require discussion in the cabinet and party meetings as well as a national dialogue,” said the former long serving diplomat.