Why the Public Leadership Code of Ethics Law is Seriously Flawed

The Citizen (Dar es Salaam)

30 April 2011

opinion

The Ethics Commission is one of the strategic institutions that were established essentially to facilitate democratization and good governance in the country. Born by the Public Leaders Code of Ethics Act No.13 of 1995, it has a Secretariat which is mandated to oversee the political conduct of public leaders. The latter is charged with the duty of receiving, keeping and verifying declarations of properties owned by leaders.

Such declarations, made at the end of each year, were supposed to be a good indicator of a leader’s integrity (or the lack of it).But the ethics law has not proved it is worth the paper it is printed on! This is basically because it is flawed in many ways. Firstly, it does not oblige leaders to publicly declare their wealth; the declarations remain the secret of the Secretariat.

Secondly, it provides for a lengthy and cumbersome process of inquiring into indictments where a leader has defaulted. Thirdly, a person (mwananchi) lodging a complaint must pay a fee in order to have access to the register of the assets declared by a leader.

This seems to have been deliberately devised to frustrate members of the public who might wish to scrutinize a leader’s wealth. Fourthly, the law leaves loopholes for leaders to cheat and conceal information about the illegal incomes and assets. (A friend of mine once remarked to me that the most interesting part of a leader’s declaration of his/her property is the undisclosed part of it).

And, lastly, the legislation does not give explicit and decisive powers to the Commission. For example, the Secretariat’s Commissioner can’t cause to prosecute any investigated cases of breach of the Code of Ethics!

This last point brings us to the recently widely reported issue (in our local media) of public leaders’ failure to file declarations of their wealth with the Ethics Commission as required by law.

We were told that more than 56 per cent of leaders who are required to declare their wealth had not done so by December 31 last year. The list included more than 50 per cent of MPs alleged not to have submitted their declarations since 2005!

Perhaps this is what prompted the Ethics Tribunal, headed by highly respected Judge (rtd) Damian Lubuva, to convene marathon sessions in D’Salaam recently, where it summoned and grilled the defaulters over their non-compliance with the law. These sessions were, in a sense, eventful, especially because they exposed certain other weaknesses of the ethics law, which I guess many weren’t aware of.

One is that the Code of Ethics covers thousands and thousands of people who are categorized as leaders and are required to declare their wealth.

With such huge number, it is almost practically impossible for the Secretariat (whose annual budget, I am told, does not exceed Sh 250m) to seriously and thoroughly scrutinize the declarations. I was surprised to learn that, even junior officers such as internal auditors and others of that calibre in government and public organizations were bound by the law to declare their assets. I think that the essence of the ethics code was that high-profile leaders’ conduct must be exemplary.

The other shortcoming in the ethics law, which came to light in the course of the sessions of the Ethics Tribunal, is that the tribunal has no powers to punish offenders. It can only recommend to the president the disciplinary action to be taken against offenders. I thought this tribunal was just like any other court, with all juridical powers.

That it is not the case is something really surprising. It is equally astounding that the law talks of disciplinary action, instead of a legally-enforceable punishment against the culprits.

Surprising because we are talking here of people who have broken the law, and not flouted a mere government regulation!

Given this scenario, one can not but agree with critics who say that, its underlying good intentions notwithstanding, the ethics law tends to encourage, rather than inhibit, leaders to accumulate wealth, comfortable in the knowledge that it is inconsequential. But, even with the present skewed law, people would have expected President Kikwete to publicly declare his wealth and be a model for others.

Mr Kagaruki is a political analyst based in Dar es Salaam

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