Mama Amon
JF-Expert Member
- Mar 30, 2018
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Hayati Prof. Kanywanyi
Mhadhiri wa Chuo Kikuu cha Dar es Slaam (UDSM), Profesa Josaphat Kanywanyi hatunaye tena tangu tarehe 10 Januari 2021.
Anajulikana kwa kuwa mhadhiri wa muda mrefu wa sheria UDSM lakini aliwahi kushika nyadhifa serikalini hata sekta binafsi.
Profesa Kanywanyi aliyezaliwa Novemba mwaka 1938 alifariki dunia katika Hospitali ya Kairuki alikokuwa akipata matibabu.
Heshima za mwisho zilitolewa katika ukumbi wa mikutano wa Nkrumah uliopo Chuo Kikuu cha Dar es Salaam.
Baadaye mwili wa Profesa Kanywanyi ulizikwa katika makaburi ya Kinondoni jijini Dar es Salaam.
Baadhi ya mawakili waliofundishwa na nguli huyo wa sheria walisema tasnia hiyo imempoteza mtu muhimu ambaye alijitoa moja kwa moja katika utendaji kazi wake.
“Nitamkumbuka Profesa Kanywanyi kwa namna alivyoandaa andiko lake la PhD hadi chuo kikuu kikatunga kanuni za kuwataka wengine wasiandike andiko refu. Pamoja na kutufundisha, alikuwa mshauri elekezi wa Chama cha Wanasheria Tanganyika (TLS) na alikuwa kiongozi kwa nyakati tofauti,” alisema wakili Julius Mutabazi.
Wakili huyo alisema marehemu alisimamia maadili na alisononeka mawakili wakituhumiwa. Kwa muda mrefu, alisema alikuwa mdhamini wa mfuko wa mawakili wanaofariki.
Wakati Dk Mutabazi akieleza hayo, wakili Bernard Mbakileki alisema enzi za uhai wake Profesa Kanywanyi hakuwa mjeuri wala mwenye majivuno.
“Wengi tumejifunza kutoka kwake, nakumbuka mwaka 1966 tulionana chuoni mlimani wakati akianza kufundisha. Mwaka 1999 tulianzisha kampuni ya uwakili na Profesa Kanywanyi alikuwa mwenyekiti wetu hadi umauti unamkuta, ni hazina kubwa,” alisema Mbakileki.
Enzi za uhai wake, Profesa Kanywanyi aliwahi kuwa msimamizi wa nje wa kitivo cha sheria wa Chuo Kikuu cha Haile Selassie nchini Ethiopia, Chuo Kikuu Cha Nairobi (Kenya), Makerere (Uganda), Shule ya Sheria Zambia, Idara ya Sheria ya Chuo Kikuu cha Zimbabwe na Chuo Kikuu cha Swaziland.
Mbali na hilo, Profesa Kanywanyi aliwahi kuhudumu katika taasisi mbalimbali ikiwamo kuwa mjumbe wa bodi ya wakurugenzi wa Benki Kuu ya Tanzania (BoT) na mjumbe tume ya huduma za mahakama.
Pia alifanya kazi kama kaimu jaji wa mahakama ya rufaa kati ya mwaka 1993-1994 na mwaka 1998-2000 alikuwa rais wa mahakama ya Comesa (Jumuiya ya Uchumi ya Nchi za Mashariki, Kati na Kusini mwa Afrika). Alikuwa wakili wa Mahakama Kuu tangu mwaka 1978 na alibobea kwenye sheria ya mabenki, bima na hifadhi za jamii.
Source: Mwananchi
=============NYONGEZA YA MAMA AMON==============
Sjawahi kukutana na Profesa Kanywanyi. Lakini nimefanikiwa kusoma andiko lake moja linalopatikana mtandani na linapatikana hapa. Naona alikuwa mwanasheria mahiri wa mambo ya Katiba. Naliambatanisha hapa chini....
OPEN-ENDED FEATURES IN CONSTITUTIONALISM AND CULTURAL ATTITUDES IN EAST AFRICA: BASIS FOR PREVALENCE OF CORRUPTION, POOR PUBLIC SERVANTS’ RESPONSIBILITY, ACCOUNTABILITY AND PUBLIC SERVICES DELIVERY?
1. GENERAL INTRODUCTION
‘It is easily said than done!’, says an old adage. The title of this paper sounds judgmental and conclusive. It should, rather, be understood to be largely hypothetical. That is why there appears a question mark at the end of its parenthesized aspect.
Still, the main heading is assertive: It patently asserts that the Constitutions (and related legal systems) as well as peoples’ cultural attitudes in East Africa bear ‘openended features’ which, presumably, form the basis for the indicated adverse socio-economic effects.
That assertion calls for some explanation regarding its meaning at the very outset of the presentation as it is also, indeed, the main focus of the paper.
‘Open-ended features in constitutionalism’ is meant to describe a phenomenon of constitutions and their related implementing principal and subsidiary legal instruments which prescribe what should (“shall”) or “may” be done without always indicating:-
a) The goal(s) to be attained and, where necessary or appropriate, the time frame and relevant quality and quantity for each aspect in question;
b) The criteria, principles, values, standards and/or rules to be observed and to form the objective basis for monitoring and evaluation of implementation steps;
c) The state person, authority, organ or body corporate who/which specifically bears the responsibility for necessary action in respect of what is prescribed or allowed to be done;
d) The state person, authority, organ or body corporate who/which is to play the role of supervisor/over-seer, monitoring and evaluation;
e) The sanctions for default(s) in implementation or for non-implementation, and the state person, authority, organ or body corporate to play the role of applying them once the supervisory/over-sight, monitoring and evaluation state person, etc. has played his/its part and reported default(s); and
f) The sanctions for default(s) by the supervisory/over-sight, monitoring and evaluation persons, etc. in (d) and (e) and the way and/or state person, etc. to effect them: Everything in (d) – (f), ought, of course, to be done with due diligence and in accordance with due process.
The lack of some, if not many, of the above-enumerated points is a weakness that may partly explain the generally observable slow progress in the political (democracy-in-practice) and socio-economic spheres of the respective Partner States and the sub-region as a whole.
This, as will soon appear in this paper, is partly and primarily due to that condition in respect of the Partner States and, consequently, also now partly because of the existence of the same flaw in the Treaty and Protocols of the EAC as well.
‘Open-ended features in cultural attitudes’, on the other hand, is meant to depict a social-culturalethical phenomenon in each Partner State and, hence, in the sub-region as a whole of cultural environmental attitudes which foster, tolerate, encourage or ignore and, thus, perpetuate nonabidance by progressive general policies and related legislation, due diligence in public service as well as due process in policy, administrative and legal decision-making and implementation by over-seers, executives, judicial and/or quasi-judicial officers, and operatives.
This tends to happen in public offices, authorities, and organs, on the one hand, and, on the other, formal or regulated private business enterprises particularly where and when it does not have direct or immediate adverse/severe consequences on the people concerned.
For instance, there is a tendency to defend or protect politically, instead of allowing proper legal steps to be taken in due process and with due diligence against, individual personalities who are alleged to be defaulters in their performance of public service duties.
Such defence may, for example, be on the basis of mere familiarity with the defaulter(s), or that the defaulter(s) belong(s) to the same ethnic, cultural or religious community, political ideology, orientation or affiliation as that of the defending supporters who may be many and/or politically powerful or influential.2
In short, this is what may be referred to as a tendency to commit the social-political-legal fault (social ‘sin’) of unprincipled favouritism in disregard of legality meant to promote and enhance the interests of each and of all in the society or community of a given country, sub-region or region (the common good).
It is a case and function of cultural environments in which the level of literacy, political experience in democratic practice and rights-enforcement by due (judicial, political and administrative) process is low; in which political and civil society organizations are still young and/or weak, and the private news media are weak in professionalism (technical knowledge, experience and skills) or censured.
The said environments tend to allow, encourage and/or tolerate great latitude in laxity, inefficiency and ineffectiveness of government, and consequent misallocations and misuse of public resources and abuse of office and power contrary to law (including codes of ethics and discipline which tend to be discriminately applied) as well as general constitutional order and good governance.
These two sets of phenomena may take many pages and hours to describe, analyse and illustrate with literary material and field research data in order to convincingly establish their respective authentic veracity to an audience. But that would be necessary if one were to address an audience not quite familiar with what the phenomena described above are all about in theory and in practice.
What one may observe on the subject within the East African sub-regional setting may, however, be found to obtain, to a certain degree, in so many other countries and sub-regions, including even where one may happen to be or to come from. This, as a subsidiary hypothesis at any rate, gives some relief to the author of this paper, who is not really an expert in constitutional law matters, in his effort to make a modest presentation of the subject within the limited time frame allocated to him for its preparation and subsequent delivery at Bayreuth.
The paper focuses on the open-ended features which are characteristic of constitutionalism and cultural attitudes in East Africa (the East African Community Partner States of Kenya, Tanzania, Uganda, Rwanda and Burundi severally and, under the Treaty, jointly) as an hypothetical principal basis for the prevalence of corruption, poor public servants’ responsibility, accountability and public services delivery in the subregion:
It is an hypothesis because its authentication cannot be provided here and now although some illustrations of such open-ended features can be and are given or cited.3 Reliance is principally made on some public reports and generally known information, statutory instruments, parliamentary sources, books and other literary materialii as well as the author’s personal experience.
“Prevalence of corruption” is intended to be a wide encompassing phrase that describes both institutional, systemic or inbuilt defects in constitutional and other related legal (substantive and procedural) provisions (bearing unlimited powers to individual officials)4 and resultant practices.
It also covers personal corrupt practices by public servants involving bribery; forgery; misuse, abuses, failures and negligence or laxity in the use of public office, positions and resources for unauthorized or illegitimate personal interests.
There is also the aspect of corrupt practices engaged in by members of the public among themselves (own and neighbour’s child abuse, acts of cruelty to other persons in vulnerable circumstances, taking law into one’s own hands, etc.) and towards public property and officials (damage to, destruction, theft, pilferage and/or adulteration of communal and/or public property; bribing of officials).
As one generally knows and understands, humans are naturally and inherently corruptible since their respective inner selves are characterized by attributes of ‘good-and-evil’ inseparably bound up together.
While the ‘good’ continuously contends with the ‘evil’ aspect for dominance of each individual’s character and vice-versa, the quantity and quality of daily ‘good’ or ‘evil’ thoughts and deeds or actions (of commission and omission) of the individual greatly influence the general and daily outcome of that incessant internal contest in both quantity and quality.
By way of extension, one can make similar observations about society and its institutions.
The general inner ethical character of a society as well as, therefore, the ethical foundations, basic values and principles of its main institutions may be seen as a function of cumulative ‘good’ and ‘evil’ thoughts and deeds or actions of its individual members and especially leaders as well as those of its institutions.
All these are performed in the course of the dynamics of the processes of historical time and space. Its cultural attitudes and the general behaviour of its leaders, therefore, stem from and are influenced by the same foundations, values and principles as well as those circumstantial dynamics.
It is thus befitting to conclude this Introduction with the following belatedly found summary observations on the institutional-societal foundations of corruption and its consequences:
In general terms, corruption arises from institutional attributes of the state and societal attitudes toward formal political processes. Institutional attributes that encourage corruption include wide authority of the state, which offers significant opportunities for corruption: minimal accountability, which reduces the cost of corrupt behavior; and perverse incentives in government employment, which include self-serving rather than public-serving behavior. Societal attitudes fostering corruption include allegiance to personal loyalties over objective rules, low legitimacy of government, and dominance of political party or ruling elite over political and economic processes.
Such, in short, is the philosophical basis of the theme of this paper. The rest of the presentation assumes that the reader will appreciate what is presented in here against the background of all the foregoing general observations.
Besides Section 1 which is the Introduction, the paper is divided into four other sections. Section 2 examines briefly, for illustrative purposes, the open-end features of Constitutionalism in East Africa by looking at a number of the Partner State constitutions’ and related implementing legislation’s provisions, which demonstrate the type of gaps and shortcomings enumerated above.
The open endedness of cultural environments and probable attitudes in the sub-region is adumbrated in Section 3 with some citation of illustrative historical and contemporary instances derived from literary sources and the present author’s personal experience.
On the other hand, in Section 4, an attempt is made to broach the issue of open-ended constitutionalism and cultural attitudes in East Africa as a basis for the prevalence of corruption, poor public servants’ responsibility, accountability and public services delivery.
Section 5 contains brief general observations in lieu of a conclusion. The account in each Section is brief to obviate an unduly lengthy presentation without added real value in variety of illustrative instances.
2. THE OPEN-ENDED FEATURES OF CONSTITUTIONALSM IN EAST AFRICA: Gaps and Loopholes which Allow Irremediable Derogations and Indefinite Defaults
2.1 Opening Remarks and Observations
De Smith’s descriptive definition of constitutionalism, though characterized as being “firmly set in a western liberal democratic mould” by John Hatchard et al. 6 and “ … ‘minimalist’ by one of Africa’s most distinguished academic lawyers …”, still, in the present author’s humble opinion, bears some basic truth which should neither be ignored nor belittled.
Thus, although the present author, being neither one of “Africa’s most distinguished academic lawyers” nor an expert in constitutional theory and/or practice, does not wish to get entangled in a critique of any view on the subject, he nevertheless agrees with de Smith when he says:
The idea of constitutionalism involves the proposition that the exercise of governmental power shall be bound by rules, rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting their permissible content – Constitutionalism becomes a living reality to the extent that these rules curb the arbitrariness of discretion and are in fact observed by the wielders of political power, and to the extent that within the forbidden zones upon which authority may not trespass there is significant room for the enjoyment of individual liberty.
The account on the gaps in the constitutional and implementing legislative instruments in this paper, to a large extent, bears witness to the criticized viewpoint of de Smith quoted here.
The critical characterization “as ‘minimalist’ … noting that western constitutionalism was often argued to be representative of a foreign element which had no place in African tradition, history or practice…”, is, from an academic point of view, both curious and, yet, interesting especially when, in elaborating the criticism, the account adds: “This latter perspective led to a ‘developmental’ argument in favour of authoritarianism: no fetter should be placed on the exercise of state power in the interests of the development of the masses. …”
The curiosity arises from the fact that the argument by ‘developmental’ authoritarianism advocates and political practitioners of it based on the claim that “western constitutionalism was often argued to be representative of a foreign element which had no place in African tradition, history or practice” might have been swallowed bait, hook and line by an accomplished academic as though it were sacrosanct! Indeed, one may, rhetorically, ask whether Western constitutionalism is the only “foreign element which had no [such] place …”?!
Interesting, because, Western constitutionalism accompanies Western capital- dominated socioeconomic bases as concomitant and necessary superstructure in former colonial possessions and most of the dependencies of Western Powers, especially in the absence of direct colonial control. Moreover, the so-called African tradition, history or practice, in general historical perspective, is by no means unique to Africa or at all static.
It may be generalized in terms of historical epochs of socio-economic development as understood today and similar instances of it are still visible especially in Asia, Latin America, Oceania, and among Native Americans – so-called Red Indians.
The process of colonial domination in the political, economic, legal and cultural-ethical spheres was bound, as historical records of former times in Europe itself clearly show, to erode and imperceptibly transform local traditions, histories or practices everywhere and orientate them towards Western constitutionalism.
Interestingly, Western constitutionalism itself was, in turn and on its part, positively affected by its imperial acquisitions, domination and exploits of these other places, regions and continents – a matter one cannot address in a paper of this kind but is historically verifiable.
Centuries ago, Western Europe itself went through some stages of what still persists in these other places. Who does not know of or recall the episodes of the Mercantilist era and its ‘benevolent absolute’, despotic and/or authoritarian monarchs, kings and emperors as well as country-inward looking and protectionist traditions, history or practices?!
The tendency to manipulate modern (western) constitutionalism in Continental Europe itself in the first half of the 20th Century, and even till today in some of the former ‘Communist Bloc Countries’ in favour of totalitarianism was and is still demonstrably manifest. One wonders whether that alone should necessarily belie the general argument and basic truth (and value) in de Smith’s descriptive definition of ‘western constitutionalism’.
Since, however, presumably, all this may have missed the gist of the whole argument of the expert colleague(s), it is better to let the matter rest here. Still, generally speaking, however, the tradition, history or practice of peoples everywhere does, in reality, progressively exert influence on constitutionalism in political life process.
On the other hand and at the same time, noble constitutional ethos, principles, goals and values as well as their further articulation in implementing instruments, all aimed at promoting the present and future common good and aspirations of the people in question at their level and in their times of development, tend to play an upgrading cultural-revolutionary role:
They set standards of governance and general conduct of life and socio-economic affairs of the country concerned to be observed and adhered to by both those in authority and common subjects.
Derogations, defaults, violations and manipulations of them by totalitarian and/or corrupt rulers, leaders and wealthy individuals do not detract from this basic historical quality, value or truth about them!15
Moreover, constitutionalism from a socio-economically more advanced culture, whether introduced peacefully and imperceptibly among, or by conquest over, a people or peoples is bound to influence or bring about trends of change in the local tradition, history in process or practice over time in tandem with the progress made in the socio-economic base.
This is particularly true where and when such ‘constitutionalism’ is accompanied with introduction or imposition of that superior culture’s socioeconomic system. It is, indeed, as natural a tendency as what is witnessed in water flowing from upper to lower reaches of a land mass.
To be sure, a significant aspect of the main argument in this paper is that the tendency of having a high incidence of open-ended features in constitutionalism in East Africa derives from the legacy of constitutions and other legislation handed down at independence from the former colonial Powers.
These powers could not give anything better in terms of constitutionalism than what their own constitutionalism contained and was, thus, capable of granting to their hitherto colonial territories upon the latter’s gaining of political independence, peacefully or otherwise, from the former.
It should also be noted with some emphasis in these regards that Western constitutionalism has developed as a sophisticated and highly regulated system of governance based on a common Christian, democratic and cultural-ethical foundation. It has been built and evolved over centuries of short and long inter-state wars of conquest and/or internal revolution.16 But this matter is beyond the scope of this paper.
In this Section, our interest centres on instances of open-ended features of constitutionalism in East Africa.
Partly for the sake of brevity and partly for failure to sight a copy of relevant instruments from all the Partner States of the EAC, the instances have been drawn from instruments of Partner States that were readily accessible to the present author at the material time of writing this paper. These appear in supportive direct (footnoted) references in the text.
2.2 Common Observable Significant and Recurring Open-ended Features in Legislation
2.2.1 Opening remarks
There are significant common and recurring open-ended features which one may observe in most of the constitutions and related implementing principal and subsidiary legislation of the respective Partner States.
In order to make a moderate presentation of them for the limited purposes of this paper, this subsection makes a descriptive listing of a sample of them here as follows below:
2.2.2 Constitutional provisions
(a) Unlimited presidential powers
It is evident in all the Constitutions of the Partner States that the respective Presidents are both of the executive type and, at that, have been granted virtually unlimited powers and privileges of an absolute or despotic monarch nature!
This derives both from our colonial past and pre-colonial local objective (socio-economic) and subjective (traditional cultural-ethical) conditions that are still with us today.
Initially, it did not even seem untenable in a democracy, however young or weak it might have been, to have such unlimited powers left in the hands of the head of State, hitherto an anti-colonial nationalist, pro-democracy-and-good-governance mass movement leader and son of the land.
Thus the so-called tendency to authoritarianism by our leaderships derives both from our own local histories, customs, traditions and usages as well as legacies of colonial constitutions and implementing legislation meant to sustain neo-colonial socio-economic and cultural-ethical interests of the former colonial powers.
It was rationalized around post-independence nationalist developmental policies in typical classical fashion; yet, its roots were and remain deeper than that even though they are increasingly being shaken by growing democratic practice and free press/media.
In their positions of President, the Heads of State in the EAC sub-region are, either directly under the constitution or specific pieces of principal legislation, endowed with the powers of Commander-inChief of their respective States’ armed forces; to authorize (“assent”) by signature all principal legislation; determine the size of the cabinet of ministers and the number of ministries, main departments and other subdivisions of the government as deemed fit or politically expedient; appoint cabinet ministers, permanent secretaries and other upper/senior State officers, chairpersons, CEOs and Deputy CEOs of boards of State executive (business, educational/cultural or other public) agencies, institutions and organizations; they also have legislative powers to issue charters, proclamations, orders and directives/decrees.i
Obviously, these are inordinately extensive and concentrated or centralized powers, in one office. Since there are rare limitations on them under most of the constitutions, the tendency to abuse, lack of immediate capacity or failure to use them effectively and efficiently and, hence, sloppiness or negligence in their application is bound to feature predominantly, in varying degrees, in the political, administrative and judicial landscapes of the respective Partner States.
In Tanzania, Kenya and Uganda, for example, there are many instances of unexplained delayed Presidential “assent” action to Bills which had been through all the requisite parliamentary “Readings” and related procedural and substantive processes.
This would not happen if the equivalent of the following virtually ‘self-executing’ provisions in Art. 1 of the Constitution of the United States or those similar to them was in our local Constitutions and would be honoured:
Section7. All bills for raising Revenue shall originate in the House of Representatives; … Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States. If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by [Y]eas and Nays, and Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. [The Rules and Limitations prescribed in the Case of a Bill shall apply to every] Order, Resolution, or Vote to which the Concurrence of the Senate and the House of Representatives may be necessary (except on a question of the Adjournment) [and which] shall be presented to the President of the United States; … [Emphasis added.]
Other alternative approaches could also be explored towards achieving better or quicker responses to performance of duty in high offices including the Office of the President: Disaggregating the disgorged power package and distributing most of the powers to other higher State organs, such as the Vice-President, Prime Minister, Sectoral Ministers, Heads of Main Departments – the Judiciary, the Attorney General and the like.
The Constitution of the Republic Kenya has, here, made a break with the past and one hopes that actual implementation will bear the new provisions out in practice. It is also imperative here to make reference to the Constitution of the Republic of Ghana which provides in Art. 1, among others, thus: “The Sovereignty of Ghana resides in the people of Ghana …. The Constitution shall be the supreme law of Ghana …”. It then goes on, under the next Art., to state as follows:
2. (1) Any person who alleges that – (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of any provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect. (2) The Supreme Court shall, for the purpose of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made. (3) Any person or group of persons to whom an order or direction is addressed under clause (2) of this article by the Supreme Court, shall duly obey and carry out the terms of the order or direction. (4) Failure to obey or carry out the terms or direction made under or given under clause (2) of this article constitutes a high crime under this Constitution and shall, in the case of the President or the Vice-President, constitute a ground for removal from office under this Constitution.
The provisions of Art. 2. (4) quoted immediately above render it clear that the position of the President of Ghana under the Constitution may, in a proper case, be jeopardized by his disobedience of an order or direction by the Supreme Court. The executive President is made subject to law while still in office.
Even if, in a given instance, there is defiance of such Supreme Court order by an incumbent President and it becomes practically or politically impossible to remove him, the illegality would have been established against him and his political standing and that of his party locally and internationally seriously damaged.
The virtually unlimited constitutional powers granted to executive presidents not only transform each ostensibly democratically elected president, but also ostensibly democratically and good-governancebased local and regional constitutionalism into authoritarian presidents and systems: Presidents tend to become authoritarian not necessarily of their own wish and ill-intended design but by means of the constitution and the law in general.
And so also does the system of law-making, justice, administration and governance tend to become oppressive while democratic values, principles and goals remain on the Statute Book as virtually irrelevant in practice and decorative appendages of the Statute Book, good material for academic researches and debates.
The adage, “Power corrupts; absolute power corrupts absolutely” thus tends to be played out in the full view of all in the local jurisdictions and the international community. This would, indeed, tend to happen even if it were the present author or any other person, for that matter, who were to assume the mantle of president or any other office endowed with absolute discretionary power for a term or terms of years.
One, and the system, would tend to increasingly become, at best, benevolent-authoritarian and, at worst, corrupt-dictatorial and dependent on the security and armed law enforcement forces and agencies of state power. This would happen, as, indeed, historically, it has, certainly, happened, in Europe22 as in America,23 in Africa as in Asia and Oceania!
Yet, the high sounding and emotive provisions of the constitution of any country which may seem to remain as virtually irrelevant and mere appendages thereto for lack of serious or consistent abidance by those in power during any particular period of time are not by that fact alone totally useless.
For they represent historical landmarks and set the tone and level of noble aspirations of the people for the ‘goods’ to be striven for and attained under their popularly and democratically elected leaders and the institutions set up for the purpose.
The fact that such aspirations are or tend to be dashed initially or in course of time due to derogations does not necessarily negate the historical relevance, significance or irreversible urge for progressive transformative change towards that illusive and virtually unattainable ideal of ‘the common good’ which can only be achieved in the context of genuine freedom, truth, justice and solidarity that together yield peace.
Such change takes place mainly imperceptibly in course of time and social, economic and cultural interactions of peoples. Its toll in human freedom and even life itself in certain places, countries or regions is sometimes or for a time heavy and bitter but the end result cumulatively is bound to be better in both the quantity and quality of ‘the common good’ attained. Such is what historical trends everywhere reveal when carefully studied and analysed despite the natural law of uneven development which is also, equally, historically manifest – in USA, Europe (West and East), Asia, Latin America, Africa and Oceania.
(b) Discretionary ministerial powers in relation to principal and subsidiary legislation
It is common in the EAC Partner State jurisdictions for principal pieces of legislation to empower the relevant sectoral ministry to – i. determine the date or dates when they or certain aspects thereof shall, respectively, come into operation (commencement date(s)); and ii. make regulations/statutes/decrees or rules by order published in the official Government Gazette.
In many such instances, however, unlimited discretion is left to the authoritarian president or a sectoral minister to determine the time frame and establish more specific criteria where, say, implementing regulations are imperative, on the basis of technical expert advice from within his office or ministry or hired consultants.
Therefore, in order for required action to be taken within a reasonable time scale, much may depend on the position of the legislation’s standing on the ministry’s priorities list, availability of local expert capacity and either internal budgetary or donor-provided resources.
That may explain recurring delayed action in respect of the two aspects (i. and ii) stated above. Some of the legislation concern seriously negotiated and pressing organized labour-employer-State interests, such as social security and other labour-employment related legislation.
Unduly delayed action in such and similar situations, like those concerning investor interests and social services delivery improvement matters, would tend to result in widespread adverse consequences.
2.3 Other Instances Drawn from some of the Partner States
2.3.1 Constitutional provisions
Starting with the author’s own country, such instances appear in many Sections and sub-Sections of the Constitution of the United Republic of Tanzania, 1977, as amended from time to time. Only a few significant ones among them, however, are cited for the already-said sake of brevity.
From the Preamble up to Article 6 in Chapter One, Parts I and II, one gets the impression that the Constitution is seriously meant to promote ideals of a society set on the path of realizing and enjoying the noble and “ Fundamental Objectives and Directive Principles of the State Policy” in Part II of the said Chapter One relating to “The Government and the people” (Ar. 8);
“The pursuit of Ujamaa [Socialism] and Self-Reliance” (Art. 9); and “Right to work, to education and other pursuits” (Art. 11). Art. 9 is rendered in quite elaborate terms spelling out eleven (11) specific duties or obligations to the State Authority and all its organs to direct all its policies and operations towards ensuring the implementation of the fundamental principles of Ujamaa/Socialism and Self-Reliance with due regard to the obtaining circumstance within the United Republic.
But any such impression is soon dashed when one reads Section 7 that renders all these provisions on the duty of the State to implement them non-justiceable or not enforceable by court actio.
7(1) Notwithstanding the provisions of sub-article (2), it shall be the duty and responsibility of the Government, all its organs and all persons or authorities exercising executive, legislative or judicial functions to take cognizance of, observe and apply the principles of this Part of this Chapter. (2) The provisions of this Part of this Chapter are not enforceable by any court. No court shall be competent to determine the question whether or not any action or omission by any person or any court, or any law or judgment complies with the provisions of this Part of this Chapter.
Indeed, these and those other provisions in Part II of Chapter One constitute perfect examples of openended features in the Constitution. For they leave absolute discretion to the State Authority (the Government of the United Republic for all Union Matters and the Revolutionary Government of Tanzania Zanzibar for all non-Union Matters concerning the Isles) to determine whether or not, how or by what means and in what way(s), at what objectively measurable rate and on what specific basis or criteria to fulfil their duty.
If they cannot be judicially or legally accountable for the duty stipulations in that Part II of Chapter One, at best, the provisions have only moral value and, at worst, are worthless hoodwinkers!
No similar provisions are found in the constitutions of the other EAC Partner States, except those that provide for derogations under a statute by Parliament to address special circumstances or emergency situations, a feature also found in the Constitution under our present discussion.
Part III (Basic Rights and Duties) 30 of the same Chapter One, contains some Articles which attempt to provide principles, criteria and guidelines regarding steps to be taken towards their implementation. But many do not do so while those which do, still exhibit gaps that allow room for derogation, non-abidance or inaction: In this regard, for instance, Art. 13 (Equality before the law) sub-art. (6) provides for such specific principles, criteria and guidelines to “the state authority [to] make procedures which are appropriate or which take into account [those] principles …”.
Still, in respect of sub-Art. 6(d) and (e), one is left wondering as to what is to happen if the police and security officers do not observe the stipulated principles; how they are to observe those principles; what constitutes “human dignity”, “torture” or “degrading punishment or treatment”? Indeed, there is the further question of the default by law enforcement officers/agencies, what sanctions are to apply in respect of them, by whom or what authority/organ and under what procedure?
One could always think of and come up with an answer to each and to all of these and similar queries within a proper understanding of the system in question as well as application of interpretation skill and technique. But, by itself, that may not always elicit the basic spirit and intention of the framers of the Constitution and what bears out the public interest or best serves the ends of justice, equity and the common good.
To be sure, the grisly accounts on “Torture and Inhuman and Degrading Treatment or Punishment” generally and with respect to Tanzania particularly provided by Chris Maina Peter in his famous publication on Human Rights in Tanzania, among others,32 renders credence to the concern expressed here by the present author regarding the gaps in the constitutional provisions referred to above.
It is evident from the renditions, particularly the aspects concerning court cases, that judicial intervention is not normally available nor when courts are seized of opportunities for intervention is it always timely, effectual or even availed in favour of victims of torture, inhuman and degrading treatment or arbitrary punishment under investigating police, State Security officers and/or prison officers and warders.
This observation equally applies to many other countries and places in East Africa33 and beyond, both in terms of how vague the provisions on the subject tend to be and the actual practice by law enforcement agencies and officers as well as the ineffectual role of judicial intervention.
There are numerous provisions in the Constitution which one could cite and elaborate upon with a view to further clarification of the general argument of this paper concerning gaps that render constitutionalism in, inter alia, Tanzania open-ended, etc.
To avoid self-repetition in essence, only one further illustrative instance will be cited: The Special Constitutional Court of the United Republic. This very important organ exists on paper only; it has thus far not been physically established: No judges or other officers of the Court have been appointed; no time frame is provided for its commencement; it is not a court of justice, as such, but essentially a conciliation/arbitration tribunal whose awards have no legal effect on decisions of the High Court or the Court of Appeal of Tanzania, on relevant constitutional matters, and are final and not appealable to any court or other authority.
This Court, however, would, if it were in operation, presumably, be useful in resolving the various apparent and latent as well as future conflicts between the Constitution of the United Republic and the Constitution of Zanzibar, which are bound to render further constitution-making, including the on-going constitutional review process, arduous, if not explosive and dangerous to peace and harmony in the Union.
Some illustrative instances drawn from the Constitution of the Republic of Burundi, 2004 and the Constitution of Kenya, 2010 should suffice to further demonstrate both the nature of the problem and its manifestation in the different constitutions of the countries in the sub-region. We start with Burundi.
Under Part II: The Charter of Fundamental Rights and Duties of the Individual and the Citizen, Arts. 19, 25, 36 and 37, respectively, provide (as per a preliminary translation from the French34) as follows:
[Art. 19] The rights and duties proclaimed and guaranteed, among other things, the Universal Declaration of Human Rights, the International Covenants on Human Rights, the African Charter on Human and People’s Rights, the Convention on Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child are integral part of the Constitution of the Republic of Burundi.
These fundamental rights are not subject to any restriction or derogation, except in certain circumstances be justified by public interest or protection of a fundamental right.[Art 36.] Everyone has the right to property. No one shall be deprived of his possessions except in the public interest in the cases and manner established by law and subject to fair and prior compensation or pursuant to a decision casting as res judicata.
Here the clear general provisions are made subject to exceptions “in certain circumstances [which may] be justified by public interest” which is a vague concept and may be abused unless some basic criteria and reasonable and transparent procedure acceptable in a free, democratic society are also stipulated to abide the exceptions “in the cases and manner established by law”.
It is, of course, arguable that there is no need to repeat what is generally provided as fundamental principles to guide legislative, administrative/executive and judicial decisions and actions. Yet, experience provides many instances of abuse or failure to abide by the spirit of constitutional provisions because of the vagueness and gaps they leave in areas of great concern to the liberty and well-being of the citizens and subjects generally
[Art. 25.] Every woman, every man has the right to freedom of person, including the physical and mental integrity and integrity and freedom of movement. No one shall be subjected to torture or to cruel, inhuman or degrading treatment.
The observations made in respect of the provisions of the Constitution of Tanzania apply here, mutatis mutandis, except that in this case the provisions of Art. 19 may enable accessibility to comprehensive definitions and interpretations of the concepts and rights in question in view of the international and regional instruments contained in Article 19 cited above.
[Art. 37.] The right to form trade unions and join, and the right to strike, are recognized. The law may regulate the exercise of these rights and to prohibit certain categories of people to strike. In all cases, these rights are forbidden to members of the defence and security as well magistrates.
There ought to be a clear stipulation of the criteria to be observed in the passing of the law to regulate the exercise of the rights and those upon which to prohibit certain categories of people, apart from those specifically mentioned in the above Article, to strike.
The Constitution of Kenya35 avails us of very good illustrative instances of comprehensive provisions that leave little room for error both as to the meaning and intention or spirit thereof. Let us look at only a select few for the sake of demonstration of the point being made here.
This is not to suggest that other country constitutions do not, in some specific provisions, stipulate criteria, particular principles or sources thereof for future legislative, judicial and administrative/executive actions. It does not also mean that the respective constitutions do not contain provisions which are open-ended or have observable gaps because this is a characteristic feature of many a constitution.
It is, rather, to indicate that, in certain cases like that of Kenya (South Africa,36 Namibia,37 Ghana38 and, to some extent, Uganda39, to mention those the present author is aware of), owing to country-specific practice or historical experience and socio-economic circumstances, the incidence of such comprehensiveness is high while in the others it is generally low.
This may signify that in most of the countries, the need for complete clarity was not felt at the time the respective constitutions were made or reviewed or that vagueness was/is designed to served certain political (party or class) interests within the principle of ‘flexibility of legislation’.
Art. 20. [Application of Bill of Rights] (1) The Bill of Rights applies to all law and binds all State organs and all persons. (2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. (3) In applying a provision of the Bill of Rights, a court shall – (a) develop the law to the extent it does not give effect to a right or fundamental freedom; and (b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom. (c) In interpreting the Bill of Rights, a court, tribunal or other authority shall promote – (d) the values that underlie an open and democratic society based on human dignity, equality and freedom; and (e) the spirit, purport and objects of the Bill of Rights. (f) In applying any right under Article 43 [Economic and social rights], if the State claims that it does not have resources to implement the right, a court, tribunal or other authority shall be guided by the following principles – (i) it is the responsibility of the State to show that the resources are not available; (j) in allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and (k) the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion.
Here we have an instance of a constitutional article that not only prescribes what should (shall) be done and by whom (which organ or authority) but also the criteria upon which to base action in a way or manner that bears out the letter and spirit of the provisions in question.
It is curious, though that, in sub-art., (4) para. (a), reference is not made to the “National values and principles of governance” under Art. 10 of the same Constitution. On the contrary, the said reference relates to a wider and more general (undefined) spectrum or set of vague (i.e., “open”) and politically popular concepts which are quite familiar to both domestic and international legal and political forums.
There are many other very good examples of a similar kind as well as those which display gaps. Such gaps could have been deliberately allowed to remain in order to permit flexibility that, presumably, would work in favour of the target beneficiaries of the Bill of Rights. But for the sake of brevity, we leave them out of consideration here for the time being.
Indeed, for the purposes of this paper, these illustrative provisions drawn from the Constitutions of Tanzania, Burundi and Kenya do suffice to show both the kind of problem which is the main concern of this paper and how, in some of the Partner States, it is addressed.
It is clear that it can be remedied in all critical areas of basic rights and freedoms covered by the Constitutions of EAC Partner States. One may concede that where, in a given context, it is unnecessary or would be tantamount to tautology to set out clarifying specific criteria, guidelines or principles for any of such areas, such clarification need not be made.
There, then, would be a risk of either arbitrary execution of the provisions in practice because of the grant, under those provisions, of absolute discretion or their lack of clarity. But in any instance where a provision allows discretion, then, the exercise of such discretion should not be left without prudential limits or guiding criteria.
This should be done even when or where, say, in the light of the applicable English common law and equity principles and doctrines, the exercise of discretion is supposed to be always ‘judicious’ – itself a vague notion!
2.3.2 Illustrative instances from some implementing legislation
In this sub-section we also cite a few illustrative instances of gaps in principal legislation drawn from Tanzania, Uganda and Rwanda so as to broaden and render all-inclusive the reference base for the paper, given its ostensible scope.
For the case of Tanzania, we take two brief instances from each of two regulatory/supervisory bodies: The Tanzania Insurance Regulatory Authority (TIRA) and the (Tanzania) Social Security Regulatory Authority (SSRA).
Both are statutory bodies and run under boards, chaired by Presidential appointees, and consisting mainly of other members representing State and relevant industry stakeholder interests as well as persons with relevant or specified knowledge and experience who are appointed by the specified Minister in each case respectively. Their chief executive officers (CEOs) are also formally appointed by the President but their attributes are either vaguely stated, as in the case of TIRA, or not at all mentioned, as with regard to SSRA.
It is also generally observable in both instances that, while each Authority, Board and CEO has a tall order of powers, functions and/or duties, which should form the basis for regular statutory either internal/self or external technical performance audit or monitoring and evaluation, there is no provision which requires it. Provisions envision only regular internal (quarterly, half yearly and annual) as well as external annual financial reporting and performance audits.
But these do not necessarily tell one the whole story about the inner workings, challenges, strategies and trends in actual operational performance levels of achievements and failures as well as actual internal and external causes thereof. Moreover, for presumably the same reason, there are no clear sanctions for default cases in these regards: For without such regular comprehensive (financial and operational) performance audits, there can be no satisfactory objective basis for sanctions against a board or its chair, an authority or its CEO.
Moreover, in both instances, no general principles and values or criteria are stipulated generally or specifically for certain aspects to guide the policy formulation (ministerial) and industry regulation (supervisory) functions, respectively. It is as though Parliament abdicated to technical experts in insurance and social security fields working in these institutions its general legislative policy guidance role.
These experts should in or for each relevant case, recall the applicable basic principles or formulate whatever criteria they deem fit, appropriate or necessary. That may imply either lack of adequate necessary knowledge and experience in these disciplines at both Government (Attorney-General’s Chambers) and Parliament (Speaker’s Office) levels or precedent legislation which bears such features!
There are also many provisions under which Parliament left too much discretion in the hands of the CEOs by using the term “may” instead of “shall” and by not setting down any limits, guiding principles and/or criteria to be observed.
For instance, section 18 of the TIRA Act,40 No. 10 of 2009, requires separation of insurance and brokerage by limiting the degree of ownership of shares or participation in the equity of a brokerage firm by a “Tanzanian insurer”, or in shares or equity of a “Tanzanian insurer” by a “Tanzanian registered insurance broker”. Sub-section (4), on the other hand, provides:
The Commissioner may, where he deems that it is in the interest of the insurance industry and the public in general and by notice published in the Gazette, grant specific exemption to any person, company or body of persons from application of the provisions of this section under any terms and conditions.
The Commissioner of Insurance, upon being satisfied that an applicant for registration as an insurer has complied with all the registration requirements under the Act, “.. may grant the registration and issue a registration certificate to the applicant”. Moreover:
(3) The Commissioner may, in granting registration, impose such terms and conditions as he may deem appropriate.
But why, one may ask, did Parliament consider it prudent to grant so much discretionary power to the CEO of TIRA: to determine “the interest of the insurance industry and the public in general”, and, then, to “impose such terms and conditions as he may deem appropriate”?!
In the one case, if he is satisfied with the applicant’s compliance with the relevant statutory requirements, why should he still have absolute discretion to grant or to deny grant of the registration?
In the other cases, one would have expected some prudential guidelines or criteria which the Commissioner would have to observe or heed in the exercise of the discretion instead of open-cheque-like grants of discretionary power under the quoted provisions. One instance may be noted from the SSRA Act41 in this regard:
19.(1) The Authority may refuse to register any scheme or any person proposing to act as a manager or custodian if it is satisfied that the application for registration does not meet the requirements provided for under this Act.
In this latter case, how can there be discretion where the statutory requirements for registration have not been met? One would, in a case like this, tend to read “shall” in “may”; otherwise, such granting of discretion would be unprecedented and basically untenable for its lack of logic and good sense.
Some few instances drawn from the Rwanda Decree which “regulates traffic on the public highway, of pedestrians, of vehicles public and loaded or mounted draught animals, and livestock.” It is a long and very detailed piece of legislation with obviously large subject coverage.
In Chapter 3. (Qualified Agents), Art. 3, as many as nine categories of “qualified agents” are detailed to execute the provisions of the Decree as specified under the article. Some legislative power is granted to the “Minister having Transports in his duties under, inter alia, Part 3. (Vehicles), Chapter 3. (Minimum Weights Authorised), as follows:
Article: 67 5. The Minister having Transports in his duties may: (a) authorise, on parts of the public highway that he designates, normal traffic of vehicles of which the weight exceeds the ones indicated above[omitted here]; (b) authorise, by means of particular and temporary decisions, those same special vehicles to move on determined routes. He fixes, where necessary, the special conditions to which these transports must comply. Article: 68 1. The Minister having Transports in his duties may reduce the maximum total weight fixed by Article 67, on some sections of the public highway as well as on crossing of bridges, ferries or other civil engineering works, within limits as dictated by the preservation of these ways or works and traffic security.
There are no clear guiding criteria or limits in all cases to be observed by the Minister in the exercise of the powers granted to him by the quoted provisions. For example, under Art. 67.5(b), the Minister seems to have discretion embedded in his power to “authorise, by means of particular and temporary decision …” and to fix “where necessary, the special conditions to which these transports must comply”.
In the case of Art. 68.1, the discretion left to the Minister is more evident. It is extremely doubtful that the Minister would always act fairly, prudently or judiciously in his exercise of the virtually unlimited discretionary power.
The ‘Klitgaadian’ mathematical-definition-based principle or rule is likely to apply here as elsewhere: discretion without accountability or prudential criteria/guidelines induces corruption.42
Perhaps, all these illustrative instances suffice to demonstrate the point the paper is attempting to make about the open-endedness of our constitutionalism.
There is a need to be more keen at a societal level about the rights and obligations provisions we make that have a bearing on the dignity of the human person, the interests of private citizens, of the public and its related communities (cultural, religious, political, economic, professional).
It is imperative to provide necessary regulations, prudential guidelines as well as ethical and disciplinary codes of conduct to ensure more abidance than derogation and, thus, to develop a rule-abidance-based culture of responsibility and accountability of public officers for what they do as such.
3. IMPACT OF FEATURES OF OPEN-ENDED CULTURAL ATTITUDES ON TENDENCY TO CORRUPTION, LOW RESPONSIBILITY, ACCOUNTABILITY AND PERFORMANCE IN PUBLIC SERVICE
3.1 Opening Remarks
The discussion here is not intended to delve into deep questions and issues of culture and either lawmaking or law-implementation and observance. But as indicated at the beginning of the paper, largely by way of hypothesis, it is the view of the paper that the cultural environments and historical backgrounds of the people(s) in the EAC sub-region foster attitudes and do create conditions that may explain the unabated major open-ended features of constitutionalism and prevalence of corruption, poor public servants’ responsibility, accountability and public services delivery.
It would require extensive and intensive research data collection, close study and analysis and synthesis to arrive at some scientifically verifiable conclusions on this matter.
That is out of the question here as already observed before. Yet, there are generally known historical-cultural-ethical facts upon which one can comfortably rely to make generally acceptable observations which are appropriate for the purposes of this paper as is done herein below.
3.2 Historical Basis and Impact of Open-ended Cultural Practices and Attitudes The Partner States are composed of different ethnic communities, both indigenous and immigrant. Thus they have different and variegated cultural backgrounds and uneven levels of socio-economic development and status.
They were forcefully formed, unified and transformed into single dependent “people” groupings in Territories under Western colonial rule in the course of the latter part of the 19th century and the first six-and-a-half decades of the 20th century.43 The indigenous ethnic communities composing each Territory had had each its own (unwritten) historical background, cultural-ethical principles, values, rules and/or norms ‘code’.
By the time of colonial rule, there were already settled in most of the EAC Partner States smaller immigrant communities from Southern Africa as well as (for slaves and spices) Sudan, Somalia, and Oman.45 Colonialism brought with it more immigrant small communities mainly from Asia,46 who came as virtually indentured Railways and Harbours construction labourers and small traders, as well as those from Great Britain and Europe, who came as settler farmers, traders and colonial civil servants, police and military officers.
The traders groups were encouraged by the colonial regime to facilitate the import-export trade and local distribution of commodities imported from the respective colonial Powers and their allies.
Except for the immigrants from Southern Africa (such as the peasant Nguni/Ngoni), the others, during the colonial era, tended to settle in ghetto-like style in urban and semi-urban areas as communities engaged largely in retail trade. Some of these were followers of Islam (the Koran), others Buddhism, others Hinduism, ‘Bahaism’, etc.
This multiplicity of communities, cultural-ethical groupings, historical backgrounds and experiences, which were collapsed forcefully into “peoples” under colonial conditions that included colonial legislation and governance, cultural-ethical principles and values, was bound to give rise to countries and States with complex cultural-ethical formations rather than popularly accepted and practised cultural forms.
There lies the deeper historical basis for largely open-ended country cultural attitudes. Then, from the colonial period to the present time, we have had a phenomenon increase in and expansion of the multiplicity of religious (including denominational sub-divisions thereof) communities.
Political and civil-society-organization communities and groups have added to the complexity of the situation in each Partner State and the sub-region as a whole. (Of course, this has also tended to happen in other areas, countries and regions worldwide and it is not, therefore, a peculiarity of our EAC subregion.)
The strength of such a country scenario lies in its variety of cultures and cultural-ethical values and principles which calls for evolution and observance of the unifying democratic and ethical principle of tolerance of the views and beliefs of others.
Other people’s views may well be opposite to those which one holds dear but so long as they are held and expressed honestly and peacefully, they should be given opportunity to exist and, if they can, thrive or grow for whatever they may be worth to the community that holds and practises them and/or the society as a whole.
The existence of such an environment also provides opportunities for the evolution of various democratic institutional methods and processes of handling and resolving peacefully local and national social conflicts.
People develop mature strategic and pragmatic ways of living together in their state of ethnic, cultural, economic and political/ideological diversity and become increasingly conscious of that reality and its necessity for their well-being as a polity.
They thus grow stronger in culture, ethics, politics, and matters of economy, etc., in their unity-in-diversity than they would ever have been or would ever be in their respective specific ethnic-religious individualities.
On the other hand, within that very strength, there also resides their transitory weakness, namely, the very liberality or open-endedness which has strong roots in an internally divided cultural-ethical environment whose inner divisions and sub-divisions are not always easily reconcilable.
Such a state of affairs, then, is inherently weak from its very sources of strength which also render the leaderships of the countries in question vulnerable: That is another way of saying that the leaderships, along with the respective systems they serve, are inevitably corruptible unless they are well formed politically and ethically and that they abide strictly to provisions of well-formulated power-sharing democratic constitutional and related legal and ethical frameworks.
Such well formed systems, which evolve over time through systemic institutionalization and practice, should nurture,50 in theory and practice, principles and values that give centre stage to the dignity of the human person and the common good, responsibility and accountability of leaders based on genuinevii transparency, due diligence and due process as well as a just and fair (equitable) resources-distribution-and-sharing system.
Within the historical and current context of cultural-ethical customs, traditions and practices, one finds reported instances of ethical values which honour that which others would consider criminal and unethical.
For example, commission or omission of certain acts involving, in present day enlightenment terms, moral turpitude but customarily regarded as insignia of bravery and/or heroism: cattlerustling;52 theft or cheating committed against ‘strangers’, common, communal, or public property; rape; girl abduction into forced marriages; bribery of public figures;54 and the like.
There is also hero-, king-, chief- or religious community-leader worship-like reverence and loyalty by members of the respective subject traditional and/or religious communities.
All these and similar historical factors, cultural-ethical values, principles, customs, traditions and practices invariably tend to influence outlooks and attitudes not only of performers and displayers of such acts and conduct but also the beneficiaries thereof both within their inner family/community groupings and public life generally.
And this happens oftentimes in ways and by means that are not always easily detectable by ordinary observation but they are real and verifiable by one’s own experience, media-reported incidents as well as careful and purposeful research.
It is a basic assumption of this paper that all these factors do actually operate within our national political, administrative and legal-judicial spheres as much as they do in particular localities with increasingly mixed multi-ethnic and multi-religious communities and denominational groups.
There is also the dimension of multi-party and multi-civil-society-organization groups operating there as well, which adds to the complexity and is affected by the very same factors as a matter of course.viii The features of cultural open-ended attitudes appearing in the subtitle of this paper is also now, presumably, fully justified and, theoretically at least, reasonably established.
4. BASIS FOR PREVALENCE OF CORRUPTION, POOR PUBLIC SERVANTS’ RESIPONSIBILITY, ACCOUNTABILITY AND PUBLIC SERVICES DELIVERY
It is reasonable to assume that it is now evident that a linkage does exist between the generally reported incidents of deep-rooted and wide-spread corruption, poor levels of public servants’ responsibility, accountability and public services delivery, on the one hand, and, on the other, the demonstrated open-ended features of constitutionalism and cultural attitudes in the EAC Partner States.
It is unnecessary here to present a lengthy account of the reported incidents. Suffice it to say that reports by researches,56 the popular media press,57 State/Parliamentary58 and other public commission59 or committee as well as IBRD/IMF reports60 contain general accounts of information and specific data all of which together suggest prevalence of instances of the mischief focused upon by this paper.
The reported incidents include: (a) high incidence of demand and receipt of monetary and material benefits (bribes, sex in respect of female applicants for jobs, promotion, admission to studies, etc.) at all levels of Government and other public institutions; (b) grand corruption involving millions in terms of money by people in high office62 (presidential, ministerial, parliamentarian, departmental, regional or provincial and district), in professional and enterprise supervisory boards, organizations and agencies; (c) lack of proper or poor control/supervision over, or accountability for, expenditure of public funds and use of public resources or property allocated under annual budgets or as Stateforeign-donor-grants-in-aid of specific projects or general expenditure; (d) lack of accountability for quick acquisitions of property of enormous monetary value by State and other public leaders and officers as well as private citizens; (e) failure to apply or inconsistent, arbitrary or selective application of staff disciplinary codes to enforce discipline among employees, staff schemes of service to promote staff on basis of seniority and merit, and the like; (f) apparent general public or popular approval of corrupt practices of leaders and public servants and despise for or low appreciation of meritorious performance, integrity, probity and rectitude of character of public leaders and officers (suggested, inter alia, by hero-like popular receptions accorded by their communities to public leaders or officers demoted due to proved or alleged scandalous conduct in their public service); and (g) a high incidence of wanton acts of inter-communal violent encounters, ‘street/mob justice’ meted out against petty thieves, incendiarism/arson due to bigotry in some places with intolerant religious groups, and similar incidents involving ordinary citizens in rural and urban areas of EAC Partner States.
5. GENERAL OBSERVATIONS IN LIEU OF A CONCLUSION
All those incidents and the rest of the presentation thus far are indicative of deep-rooted elements of corruption in constitutionalism itself and cultural-ethical dispositions in our countries. Indeed, they illustrate the impact of open-ended features in our constitutionalism and cultural-ethical attitudes and, of course, our still-low level of development of the more fundamental socio-economic conditions in each Partner State and the sub-region as a whole.
It is the progressive development of these conditions as well as such conscious political (policy), legal (legislative and judicial) and administrative (executive) decisions and concrete reform steps as deemed necessary or expedient in course of, and in proper, time and space, that will create the conducive environment for the abatement of the incidence and extent of prevalence of corruption, poor public servants’ responsibility, accountability and public services delivery.
Both progressive constitutional-legal-judicial changes in each Partner State and the sub-region as a whole, on the one hand, and, on the other, the peoples’ (individually and as groups) sustained striving for freedom, justice, truth and in solidarity will egg on equally progressive trends of change in constitutionalism and cultural-ethical attitudes.
Such trends will, in course of time, involve a positive impact on and, hence, a decline in the prevalence of corruption, poor pubic servants’ responsibility, accountability and public services delivery. Thus, depending on what we plan to, can and actually, do today, the future should not be viewed as bleak, problematic and hopeless but rather, as bright, challenging and promising.
(Chanzo: WARAKA WA MAONI YA CPT JUU YA MCHAKATO WA KUUNDA KATIBA MPYA YA JAMHURI YA MUUNGANO WA TANZANIA (2012), Kiambatanisho C: uk 50--74). Nimeambatanisha Waraka huu hapa chini.
