Strengthening Tanzania’s Public Leadership Code of Ethics Act

by Mary Gusella

Introduction

Tanzania, a country in East Africa that is approximately the size of Ontario with a population of about 40 million people, is a relatively young democracy that has been working diligently to put into place its institutional governance mechanisms. Canada, through CIDA, has been a partner in these efforts for many years and in 2009 selected Tanzania as one of 20 “countries of focus”. 

 

Major public sector reform initiatives in Tanzania have included new legislation establishing the Commission for Human Rights and Good Governance in 2001 and the Prevention and Combating of Corruption Act in 2007. Tanzania’s Poverty Reduction and Growth Strategy, Mkukuta, identifies good governance as one of its three clusters. As well, the Government adopted the National Anti-Corruption Strategy Action Plan (2004-11) as a strategic policy and action framework to prevent and combat corruption.

 

Against this backdrop of reform, allegations of corruption against public leaders have resulted in resignations, including two Ministers and the former Prime Minister. In August 2008, in a major speech in Parliament, President Kikwete, announced his intention to improve declarations of assets of public leaders before upcoming elections in 2010.These declarations, contained in the 1995 Public Leadership Code of Ethics Act, were becoming the target of a more informed and critical public environment. The Ethics Commissioner, Mr. Justice Steven Ihema, sought Canada’s assistance in responding quickly and comprehensively to the President’s declaration.

 

The project, accepted under CIDA’s Deployment for Democratic Development (DDD) in January 2009, was conceived as a comprehensive review of the Act from its inception, including an examination of the functions and powers of the Ethics Secretariat as set out in Article 132 of the Constitution and the Act.

 

PROJECT PROFILE Title: Support to Tanzania’s Ethics Secretariat for the updating of the Public Leadership   Code of Ethics Act Client: Ethics Commissioner, head of an Independent Department under the President’s Office Consultant: Mary Gusella and research contract with Professor Adam Dodek, Faculty of Law, University of Ottawa Duration: Approved January 2009; three missions: February, May and September 2009; final report November 2009. Budget: $ 273,108 Key Outputs: 1.       Draft decision-making document on proposals for legislative changes to the Public Leadership Code of Ethics Act 2.       Stakeholder Consultation/Workshop on proposals for changes 3.       Research papers describing legal frameworks for conflict of interest machinery in six selected countries, a comparative analysis and papers on conflict of interest standards adopted by key international organizations. 4.       A series of “Supplementary Materials” to assist in the decision-making process

 

Because the “draft decision-making document” was intended as an input to a Cabinet submission, it had the unusual implication, dictated by Cabinet secrecy, that the consultant could not be privy to the actual Memorandum to Cabinet. At the time of writing, no decision on the proposals for change has been announced although recently the Prime Minister made a public declaration of his assets, a key proposal in the package that was prepared.

 

Tanzania's Democratic Governance Profile

Tanzania’s success in securing official development assistance (ODA) can be attributed both to need (ranking 151st of 177 countries on the United Nations’ Human Development Index) and donor perceptions concerning its quality of governance.  For example, Tanzania receives the most aid among Sub-Saharan African countries from the US Millennium Challenge Corporation (MCC), which bases its aid commitments on meeting good governance standards.[1]  Overall, it ranks second among Sub-Saharan African countries as an ODA beneficiary (excluding humanitarian aid).[2]  With respect to democratic governance, however, Tanzania’s performance is mixed.

 

Freedom House ranks Tanzania as “partly free”, a rating it has held for the last decade.  One-party dominance, high corruption levels, and ongoing failure to agree on political reforms with the Zanzibar-based opposition are cited as barriers to further progress.

 

Press freedom has been steadily improving over the last decade.  In 2009, Tanzania ranked 62nd of 175 countries, and 7th in Sub-Saharan Africa, on the Reporters without Borders Press Freedom Index.

 

The World Bank’s Governance Indicators point to reasonable progress with one glaring exception: Of the six indicators, control of corruption ranked lowest (36th percentile) in 2008 and was the only indicator that had significantly declined (from 43rd percentile) since 2003.  By contrast, scores in voice and accountability, political stability and rule of law showed definite improvement.

 

On Transparency International’s 2009 Corruption Perceptions Index, Tanzania ranked 126th of 180 countries and 27th in Sub-Saharan Africa.  Disturbingly, the modest progress gained over the previous five years reversed last year.

 

Corruption clearly remains a central governance challenge facing Tanzania.  Given the linkage between aid levels and governance, incentives to address this issue are high.  This Deployment for Democratic Development (DDD) case study is situated at the heart of this vital issue facing Tanzania. 

 

 

Tanzania's Public Leadership Code of Ethics Act

“In its efforts to improve good governance and accountability in the public sector the Government of the United Republic of Tanzania in 1995 enacted the Public Leadership Code of Ethics Act….The main objective of the Act was to provide for a Code of Ethics to be observed by specified public leaders in all three branches of the state (the Executive, the Judiciary and the Legislature).”[3] The Act applies to about 7,600 people (more than twice as many as in Canada) including political leaders, Members of Parliament, public service leaders, judges, university officials, leaders in corporations in which the Government has a controlling interest, mayors, local government leaders and certain, but not all, public leaders in Zanzibar. Since 1995, other legislation has been enacted and other initiatives implemented that have impacted on the Act, resulting in issues around conflict of laws and duplication as well as around the Act’s adequacy and effectiveness. As well, “there has been a general perception among various stakeholders to the effect that the Public Leadership Code of Ethics Act has not been sufficiently effective in curbing unethical conduct among public leaders.”[4]

Defining the Project

During the planning mission, it became clear that the number and nature of desired deliverables could not be achieved within the limited duration and budget of a DDD project. The original requests relating to the functions and operations of the Ethics Secretariat, for example, can only be addressed as part of a larger, longer-term project focusing on organizational design and capacity building relating to implementing the revised Act.

 

In the end, it was agreed to lay the groundwork and focus on developing the draft decision-making document required by the President. To meet the client’s tight time frames, the project needed to produce as quickly as possible the research, policy, analytical and stakeholder work required for the draft decision-making document and legislative revisions. The work plan accommodated the extreme time pressures by having modules proceed on parallel tracks that converged and were integrated in preparation for the stakeholder consultation/workshop.

 

The work plan comprised four main activities, each with a specific output to support the Ethics Secretariat’s preparation of the decision-making document as follows: 

(1) research models and best practices for institutional machinery for conflict of interest and ethics, including mechanisms for separating private and public interests; (2) identify requirements for legislative action through in-depth analysis of the current Act and interrelated legislation; (3) hold consultations with representatives from a broad base of stakeholders; and (4) develop recommendations for new/amended legislative provisions that could be advanced for decision-making.

 

An additional piece of work, the review of other legislation to identify instances of duplication, inconsistency or conflict with the Public Leadership Code of Ethics Act, was undertaken as a separate but supportive project by a local law professor.  However, this contract was not completed during the course of the project.

 

The importance of achieving clarity in project scope, definition and deliverables cannot be overstated and had to be accomplished during the one-week planning mission, including achieving buy-in from the client. 

 

Delivering the Project

As noted above, the first two activities proceeded in parallel with the research component contracted to Professor Adam Dodek of the Faculty of Law, University of Ottawa who supervised several students in drafting the country-specific documents and comparative analysis. The second activity was an analytical review of the current legislation, including a clause by clause analysis to identify deficiencies, gaps and issues to be addressed in legislative proposals. This paper also discussed gender-related issues and was prepared by the consultant between the first and second missions. In addition, preparatory work was begun on the PowerPoint presentations for the stakeholder consultation.

 

The second mission focused on two tasks: reviewing the analytical and research work and agreeing on the proposals for amendments to the Act; and preparing/holding the stakeholder consultation. Particular attention was given to ensuring representation from such stakeholder groups as women lawyers’ and women journalists’ associations. The day-long consultation was chaired by Mr. Justice Steven Ihema, Ethics Commissioner, with the opening speech given by Mr. Michael Mwanda, Permanent Secretary, State House, whose presence and message to stakeholders signalled the importance of the reform to the President’s Office.

 

The main presentation, the “Nature and Challenges of Conflicts of Interest” drew on the research and reviewed the types of conflicts of interest and methods used in various countries for addressing them. It was delivered by the Deputy Ethics Commissioner. Three workshops dealing with a series of proposals for amendments generated feedback from the stakeholders. Handouts prepared by the consultant entitled “The Public Leadership Code of Ethics Act -Separating Public and Private Interests” and “Research Summary and Comparison of Key Provisions” were provided.

 

The response from attendees was positive and the Commissioner was complimented on the gender representation and for engaging stakeholders during the development of the proposals, as opposed to later in the process, after decisions had been made.

 

The project’s final stage, preparation of the decision-making document, was overtaken by the quick pace of events. The Commissioner indicated that the consultation documents were already being utilized in pre-Cabinet discussions and additional assistance was requested to support the upcoming decision-making process. Eight key areas were identified as subjects of a series of “Supplementary Materials,” including: Blind Trusts – Background Paper, A Model for Treatment of Assets, Sample Provisions – Qualified Blind Trust Agreement, Example of Recusal Arrangements, Guidelines – Reimbursement of Costs, Conflict of Interest Definitions, Defining “real/potential/apparent” conflicts of interest, Draft Conflict of Interest Scenarios for Discussion.

               

Project Timelines
February	First mission – scope project, prepare work plan
March-April	Develop research papers, clause by clause analysis of current legislation and materials for consultation
May	Second mission – review research and analytical work with client, finalize presentations and hold consultation
June-August	Draft decision-making document
September	Third mission – finalize “decision-making document”,  respond to request for supplementary materials

 

Lessons Learned

The DDD Program connects Canadian expertise with pressing public policy/management needs in developing countries. In doing so, it relies on the ability of the expert(s) to quickly assess the nature and scope of the requirements and to design a set of deliverables that will meet those needs in the course of a short, limited-budget project. It has been noted elsewhere that “Little time exists for cultural acclimatization, relationship-building, piloting, or extensive consultations”.[5] In spite of these challenges, this project enabled the Ethics Commissioner to respond quickly and comprehensively to the President’s priority of revising the Public Leadership Code of Ethics Act. As of April 2010, although the legislation has not yet been tabled by the Government, the Prime Minister recently, and completely voluntarily, publicly disclosed his assets, one of the proposals put forward, surprising the media and civil society leaders.

 

Lessons learned include:

 

• Maximize the planning mission. Usually short and meeting-packed, the planning mission is probably the single best determinant of the overall success of the project. Extensive preparation is not paid for, but will yield results for the expert who learns enough about the background and environment to be able to listen to the needs being expressed and mentally triage them so as to develop a focused project with clear activities and deliverables.  The expert may also have to be persuasive so that the client sees that it is necessary to scope down the project in order to achieve the key results desired, rather than undertaking a wide array of activities.

 

• Seek out comparable experience in other countries. Six countries were identified during the planning as having legislative regimes of interest. Together with the work of several international organizations, this information provided a useful backdrop for developing new provisions. In addition, the papers were synthesized and provided as handouts for the consultations, thus creating well grounded discussion during the workshops.

 

• Use university expertise. Asked to recommend a professor with expertise in ethics, the Dean of the University of Ottawa Law School proposed a unique win-win arrangement. Students in a legal writing course prepared project research material under the supervision of Professor Adam Dodek who himself drafted a comparative paper and ensured the quality of the student papers. When the papers were posted on the DDD website, the students were recognized by name and were pleased to be “published”. The contracting process by IPAC was straightforward and delivered good value.

 

• Remain realistic. Given that the ethics legislation has not yet been tabled, it might appear that no concrete outcome has been achieved. However, like many countries, including Canada, decision-making in Tanzania on matters that directly affect the lives and conduct of politicians and other leaders can be extremely difficult and usually requires time and enormous political will.  Remaining realistic means that the project’s goal always needs to be kept in mind. The fact that the Ethics Commissioner was able to put forward timely and comprehensive proposals for the decision-making process was the concrete outcome. DDD experts, like public servants everywhere, must look to political leaders to take the next steps.

 

• Work on overcoming distance with technology. Designing and delivering a legislative policy process and a set of proposals (including a stakeholder consultation) in eight months proved quite demanding. Unfortunately, little collaborative work was accomplished between the three missions, which were intense working sessions for all concerned. To avoid this “start-stop-start” approach, it would be desirable to build a technology-based component into the work plan requiring regular face-to-face communication, using Skype for example, to provide updates and discuss issues between missions.

 

Strengthening Democratic Governance

Virtually all “good governance models” include an anti-corruption component.  The focus of this project, preparation of a new Public Leadership Code of Ethics Act, will provide Tanzania with a powerful tool to prevent corruption.  CIDA’s support, through DDD, to Tanzania’s Ethic’s Secretariat comes at a critical juncture for the country.  If the fight against corruption does not succeed, the gains being made in other areas of good governance and the related level of aid will be at risk.  This is a small project with major implications. 

 

 

Knowledge Transfer Potential

The design of this project lends itself to being used in other countries, particularly when proposals for legislative change need to be developed. Transferable features of this process included the use of research on legislative machinery in selected jurisdictions, the convening of an early stakeholder consultation on the proposals under development, and, to accommodate tight time frames, the division of activities into modules that could be undertaken simultaneously and then integrated just-in-time prior to the stakeholder consultation.

 

Looking Ahead

As this case study is being written, there has been no government decision on the legislative proposals, but it is understood that they have reached the Cabinet. In view of the fixed-term fall 2010 elections, the timing would be appropriate to announce any changes so that those who are making decisions regarding candidacy in those elections could know how their assets will have to be dealt with should they be elected. Alternatively, those who would not be prepared to conduct their financial and other affairs in keeping with an amended Public Leadership Code of Ethics Act could decide not to present themselves for election. Once it is clear which proposals will be placed before Parliament, the project’s work will serve as a basis for developing an implementation plan that may include legislative drafting, the development of related regulations, the design of new procedures and the internal organizational steps and capacity building needed to equip the Ethics Secretariat to implement the legislation, apply the new law, build awareness of its requirements, and enforce compliance.

 

 

Update

(August 9, 2010)

 

When the Parliamentary session closed on July 16, the proposed amendments had not been introduced and are now awaiting the formation of a government, following the October 31, 2010 elections.

 

Despite the lack of legislative action, there has been Presidential action in the form of the appointment of a three member panel for the Ethics Tribunal. Three former judges have now been sworn in, making this tribunal operational for the first time.

 

The Ethics Tribunal is an important piece of machinery that was part of the existing legislation enacted in 1995 but it had never been "activated" by successive Presidents. Its absence meant that where the Commissioner found evidence of a breach of the Conflict of Interest Code, he had no authority to make findings and no avenue for presenting evidence to a body authorized to make findings and to impose sanctions. When we analysed the legislation as part of the project the absence of an operational tribunal was identified as a glaring gap in the machinery and it was recommended that it be addressed.

 

 

Mary Gusella is Chair of the Board, Commission for Complaints for Telecommunications Services and former Chief Commissioner of the Canadian Human Rights Commission. She completed her work on the above DDD initiative in November 2009 and is currently working on behalf of DDD with the Government of Tanzania to develop a social marketing campaign that would help improve ethical conduct of public servants and increase citizen awareness and demand for quality public services.

 

Endnotes

[1] Tanzania has signed a 5-year $698 million aid contract with MCC.

 

[2] OECD DAC reports that Tanzania received $2.33 billion in 2008, just behind Ethiopia.

 

[3] Terms of Reference for Consultancy Services for the Review of the Public Leadership Code of Ethics Act, 1995.

 

[4] Ibid

 

[5] See Ukraine Case Study on DDD website http://www.democraticdevelopment.ca