FOR PRESENTATION TO THE WORKSHOP FOR THE MEMBERS OF PARLIAMENT

ORGANISED BY THE ETHICS SECRETARIAT

OF THE UNITED REPUBLIC OF TANZANIA
27TH APRIL 2010

Page | 1

THE LEGAL
FRAMEWORK FOR
THE REGULATION OF
PUBLIC ETHICS IN
TANZANIA
A REVIEW
Dr. R.W. Tenga ,
Advocate of the High Court of Tanzania & Senior Lecturer at the
SCHOOL OF LAW (Formerly THE FACULTY OF LAW), UNIVERSITY OF
DAR ES SALAAM
27/04/2010
 THE LEGAL FRAMEWORK FOR THE REGULATION OF
PUBLIC ETHICS IN TANZANIA:
A REVIEW.
[By Ringo Tenga1]

0. An Introduction.

This paper is a review of the legal framework for regulation of

public ethics in Tanzania. It relies substantively on an earlier
partial consultancy done for the Ethics Secretariat and CIDA of
Canada which carried out a review of the PUBLIC LEADERSHIP
CODE OF ETHICS ACT, CAP 398 [R.E. 2002] Both sponsors
of that consultancy felt that the present Leadership Code of
Ethics Act is in serious need of review and outlined a number of
factors that have arisen since its enactment, and these factors
include:

The expanded mandate of the Ethics Secretariat in

2004 to cover not only public leaders but also middle
level public servants;
The establishment of six Ethics Secretariat Zonal Offices
closer to stakeholders in executing Ethics Secretariat
functions;
A set of major public sector reform initiatives that have
resulted in the enactment of new legislation such as
the Commission for Human Rights and Good
Governance Act (2001) and the Prevention and
Combating of Corruption Act (2007);
The enactment of the Public Sector Regulations in
2003 providing for a Code of Conduct for all civil
servants;
The enactment in 2000 of a Codes of Ethics for Local
Government Councillors who are also covered under
the Act;
New strategies such as the National Strategy for Growth
and Reduction of Poverty with good governance as one
of the three clusters of the Strategy;

1
Dr. Ringo Tenga is a Senior Lecturer in the School of Law of Law University of Dar Es Salaam where he teaches, amongst other
subjects, Legal Ethics. He has also lectured, part time, on Medical Ethics at the Muhimbili University of Medicine as well.
 The introduction and adoption by the Government of
the National Anti-Corruption Strategy Action Plan
(NACSAP) as a strategic policy and action framework
for preventing and combating corruption in the country
for the period 2004-2011 thereby strengthening
governance, transparency, accountability, integrity and
efficiency and improved public delivery;
Recent regulatory changes, in particular in the
tendering and procurement area have been introduced
and put into place mechanisms that address certain
areas covered in the existing Act.

The consultants were then mandated to review the provisions of

Cap. 398, pointing out, among other things, its short comings,
contradictions, conflicts and duplication, if any, with other
legislation and some initial recommendation for remedies. In
doing so we surveyed the various legislative schemes both within
Tanzania and in other jurisdictions and benefited from the
comparative exercise. In the present paper I am requested to
give a general overview on regulation of ethical conduct of public
leaders and articulate the various challenges public authorities
face in doing so.

The paper gives first a short historical background to the public

ethics in Tanzania; second, it gives an Analysis of the various
legislative schemes with emphasis on Cap.398; third, a brief
comparative analysis of the existing strategies and policies; and,
lastly, some tentative recommendations for reform.

1. THE DESIGN OF THE MODERN LIBERAL STATE AND THE

PARADOX OF CORRUPTION.

The modern democratic state in all its forms is the current

bedrock of public leadership. The attributes of such leadership
can only be grasped by understanding the design of the modern
state. From Platos Republic, in ancient Greece, it is clear that
public leaders are assumed to be people with special leadership
acumen coupled with an unimpeachable character. For Plato
leaders are the Guardians of the State and must be well
educated and of high integrity, in short, men of gold. Plato
 even assumed that such people should be celibate in order to
devote most of their time to the complexities of the state. A
similar perception of the qualities of public leadership resonates
throughout history. In Roman times Cicero committed some of
his most memorable writings to the qualities of a good leader. In
his De Officiis (On Duty) Cicero makes a contrast between
duty and expedience. He argues a good leader is one imbued
and guided by the moral dimension and not expedience. In the
middle ages in Europe Machiavellis The Prince is concerned
with a public leader led by expedience and utility for the good of
the State.

But the classical design of the modern state is best defined

through the work of 17th Century enlightenment philosophers in
Europe from Bodin, Grotius, Hobbes Locke, Rousseau,
Montesquieu, etc., who defined modern sovereignty and
grounded it on the Social Contract. This representative
democratic model and its structure required a definite form of
leadership and accountability to the citizenry and defined what
the best leader would be. It is Montesquieu who saw the need to
regulate leadership through institutional arrangements that
would check and balance state organs in such a way that
democracy would not degenerate into despotism or dictatorship
of individuals or oligarchs2. If leaders were not constrained by
rules and institutions they would easily capture the state, as it
were, and usurp its ownership from the people. The
consequence of this omnipresent threat led Montesquieu to
design a state system that is both representative and based on
the Separation of Powers between the legislature, executive
and judiciary as the basic pillars of state machinery. The
checks and balances that were in-built were the guarantee that
a usurper would not hijack the state from its stakeholders - the
citizenry.

But Montesquieu understood that any creation of human beings

has a beginning and an end, just like everything else that exists.
One of the terminal diseases which was bound to effect his
design of the state was the corruption phenomenon. That greed

2
Montesquieu, Baron Charles de THE SPIRIT OF THE LAWS, See Book VIII entitled Of the Corruption of the Principles of the
Three Governments. Shows how DEMOCRACY, ARISTOCRACY and MONARCHY are destroyed ultimately by corruption.
 and corruption would one day triumph over democracy is one of
the most paradoxical prophecies of Montesquieu3. And true
enough the modern state is bedevilled with the corruption
phenomenon that has become the social cancer of our times.
The list of International Conventions and Organs that deal with
corruption is illustrative. International NGOs such as
Transparency International are huge organizations with chapters
in many countries all dealing with the issue of corruption.
Municipal laws have also been developed in many countries to
combat the phenomenon. Instead of diminishing after all this
effort, corruption is increasing. Is the deterministic view of the
designer of the modern state, Montesquieu, unstoppable?4 Or do
we need today a redefinition of the State? These are the
questions political scientists, sociologists and philosophers
grapple with even today, but this paper is not essentially about
that. What I am mandated to focus on is what the law does in
restraining a Public leader from degenerating into a corrupt
leader. So what is a good Public Leader?

The question is ethical and attempts have been done to define

the qualities of a Public leader. In 1995 the so called Nolan
Committee in United Kingdom outlined the Seven Principles of
Public life5. These include:
1. SELFLESSNESS
Holders of public office should act solely in terms
of the public interest. They should not do so in
order to gain financial or other material benefits
for themselves, their family, or their friends.
2. INTEGRITY
Holders of public office should not place
themselves under any financial or other
obligation to outside individuals or organisations
that might seek to influence them in the
performance of their official duties.
3. OBJECTIVITY
In carrying out public business, including making
public appointments, awarding contracts, or

3
Althusser, Louis 'Politics and History: Montesquieu, Rousseau, Marx (Radical Thinkers)'.
4
See Bakunin, Bakunin The Immorality of the State.
5
See Generally: http://www.public-standards.gov.uk/
 recommending individuals for rewards and
benefits, holders of public office should make
choices on merit.
4. ACCOUNTABILITY
Holders of public office are accountable for their
decisions and actions to the public and must
submit themselves to whatever scrutiny is
appropriate to their office.
5. OPENNESS
Holders of public office should be as open as
possible about all the decisions and actions that
they take. They should give reasons for their
decisions and restrict information only when the
wider public interest clearly demands.
6. HONESTY
Holders of public office have a duty to declare
any private interests relating to their public
duties and to take steps to resolve any conflicts
arising in a way that protects the public interest.
7. LEADERSHIP
Holders of public office should promote and
support these principles by leadership and
example.

The Principles have been widely debated and we take them to be a

good foundation for any analytical framework for the review of any
systems or rules concerning the ethics of Public Leadership. In
Tanzania concern to regulate Public Leadership has its roots in the
British colonial administration and it is important to reflect in brief
on the relevant legislative history.

2. LEGISLATIVE HISTORY OF THE REGULATION OF PUBLIC

LEADERS ETHICS IN TANZANIA.

Colonial Period

The regulation of Public Leaders through institutions and rules has

its roots in the colonial period. The Colonial government enacted
the first anti-corruption legislation in the 1950s. This was known as
the Prevention of Corruption Ordinance, Cap. 400, enacted in 1958.
 Earlier the main legal framework for regulating Public Officials was
through general penal provisions of bribery, forgery, and
embezzlement sourced from the Indian Penal Code. These were of
limited utility and Cap. 400 widened the net for covering corrupt
acts by including amongst others, an offence where a Public Officer
would have obtained an advantage without lawful
consideration or adequate consideration, etc. Later in 1970
the Ordinance was amended to also cover the offence of a public
Officer being in possession of property corruptly obtained.

Independence and After

After Independence in 1961 statecraft was left to African natives, as

the British departed the new African leaders faced a challenge that
was totally new to them. In an attempt to grapple with the
leadership of a state many leaders equated the symbols or marks of
leadership as synonymous with wealth. In order to march the
cultural sophistication, modernity, grandiose, pomp and ceremony
of the British master, conspicuous consumption within the
leadership became the order of the day. Mwalimu Nyerere had to
deal severely with cabinet ministers who took bribes flagrantly
discrediting the Virtuous leadership he tried to inspire. Historians
note that the craze to buy Mercedes-Benz cars by leaders in this
period led the citizenry to refer to them as Wabenzi, - a new
tribe of public leaders whose distinctive status was based on
wealth accumulated from public office. This was a clear indication
that public leaders were becoming distant from the rest of the
population and their wealth was obviously not based upon salaries
alone6. Nyereres first attempt at regulating the leadership was
through the then Permanent Commission of Enquiry (PCE),
recognized in the provisions of the Interim Constitution of United
Republic of Tanzania of 1965. Later on, the PCE was established
under its own statute7, and mandated specifically to inquire, when
need arose, into the conduct of public leaders.

The era of TANUs Leadership Code 1967 1995.

6
Pratt, Cranford. The Critical Phase in Tanzania 1945-1968: Nyerere and the Emergence of a Socialist Strategy (Cambridge
U.P. 1976, reprinted 2009)
7
The Permanent Commission of Enquiry Act, 1966 (No.25 of 1966).
 When the Arusha Declaration was announced in 1967 ushering in an
era of African Socialism or Ujamaa, one of the critical documents
of the time was a Leadership Code for the TANU Party leaders. Here
we see an attempt to regulate Public Leaders not from restraining
laws per se but through a code of honour. 8 A leader according to
that code included:
Members of TANU National Executive Committee
Ministers in Government
Members of Parliament
Senior Officials of Organization Affiliated to TANU
Senior Officials of Parastatals.
Leaders appointed under the TANU Constitution
Councillors of Local Government
Civil Servants of high and middle calibre
The definition of a Leader included the spouse of such leader.

The TANU Leadership Code had the following basic principles9:

1. Every TANU and Government leader must be either a

Peasant or a Worker, and shall in no way be associated
with the practices of Capitalism or Feudalism.
2. No TANU or Government leader shall hold shares in any
Company.
3. No TANU or Government leader shall hold Directorship in
any privately owned enterprises.
4. No TANU or Government leader shall receive two or more
salaries.
5. No TANU or Government Leader shall own houses for rent.

The Code received legislative recognition in 1973 through the

enactment of the Committee of the Enforcement of the
Leadership Code Act 1973.10 Later in 1987 the Act was
amended to give it broader coverage by applying it to Zanzibar and
substituting CCM for TANU11 The Acts intention was to establish
a committee for investigation into cases of breaches or suspected
breaches of the Leadership Code by Public Officers It was signed

8
Mashamba J. Clement When the Operation of the Law enhances Corruption in Tanzania: An Enigma in a Legal Regime
Needing Reform [NOLA, 2004]
9
Mujumba, Philemon. 1999 The Efficacy of the Leadership Code of Ethics Act, 1995 in combating Corruption in Tanzania
LLB research dissertation, Faculty of Law, University of Dar Es Salaam.
10
(Act No. 6 of 1973 1st May, 1973).
11
Act No. 5 of 1987
 into law by President Nyerere on 30th of April, 1974.12 Section 2 the
Act defines the Leadership Code to be the Code of Ethics relating
to a specific cadre of leaders covered in a specific instrument.

For example in the case of Members of the National Assembly

the Code of Ethics was made up of the conditions under Section
27(2) 9h), (i), (j) and (k) of the Interim Constitution of Tanzania
1965, breach of which would disqualify a person from election as a
constituency member. These provisions were extended by an
amendment to the Interim constitution (Act No. 40 of 1967) which
amended S. 27 by adding paragraphs (h) (l). The provision stated
that no person shall be qualified for election as a constitutional
member:-

(h) if he or his spouse is the beneficial owner of any

share in any company in corporate or established in
the United Republic or elsewhere or, of any interest
in any such share.
(i) If he or his spouse holds the Office of a director in
any company incorporated or established in the
United Republic or elsewhere otherwise than as a
nominee of the Government or of any Statutory
Corporation or of any company of which the
majority of ordinary shares are held by the
Government or by Statutory Corporation.
(j) If he or his spouse is the beneficial owner of any
house or other building or of any interest in a house
or other building which, or any portion of which, is in
the exclusive occupation of some other person in
consideration of payment of rent, fee or other
valuable consideration whatsoever other than lawful
deductions from the wages payable to a domestic
servant in respect of occupation by him of any
portion of such house or of any living quarters
attached thereto.
(k) If or his spouse is in receipt of two or were salaries;
or
(l) If he or his spouse being a person engaged in any
trade, business, profession or vocation, employs any
workman for the purposes of, or in connection with,
such trade, business, profession or vocation.

12
Similary in 1974 the Interim Constitution was Amended to give the Committee Constitutional recognition See S. 3 5 of the
Interim Constitution of Tanzania (Amendment) Act, 1974) amending SS. 34 A + B and 37 of the Interim Constitution.
The provisions were quite elaborate. Where a member acquired in
some way property that was not reported earlier he had to give a
notice to the Electoral Commission that he would dispose the
property in three months from the date of the notice (S. 27 (10)).
Section 34A was introduced to provide for declarations by members
of National Assembly, and the declarations were to be lodged with
the Speaker indicating that the particular member is not disqualified
in terms of Section 27(2) Paragraphs (h) (l). A copy of each
declaration was to be forwarded to the Attorney General (S. 34 A
(5)). Further, section 34B was introduced in the Constitution for
Members to lodge statements of affairs regarding particulars of the
members income and assets and of the income and assets, and of
the income and assets of the members spouse or spouses. That
statement also was forwarded to the Attorney General (s. 34b (3)).
It is noteworthy that this information was highly confidential and
only the President, the Speaker and Attorney General were to be
privy to it (s. 34B (4)). And where an Act of Parliament authorized
access to such information the Interim Constitution directed that
such an Act must make provision as may be necessary to ensure
that no unauthorized person gains access to any statement of
affairs or receives any information contained therein.

These provisions also were to apply to the Speaker of the National

Assembly and he was required to report to the President directly
(Section 37 (2A) and (2B)). The President would, in turn, forward a
copy of the Speakers declaration to the Attorney General (Section
37 (2C)). The contravention of the Code meant that the Member of
Parliament would vacate his Parliamentary seat (S. 34(1)).

The case of Members of a Local Authority was covered under

Section 2 of the Leadership Code Committee Act, 1973, which
provided that the leadership code, in the case of a member of a
local authority, included conditions referred to under section 48(1)
paragraphs (i), (j), (k), (l) and (m) of the Elections Act, 1970 (No. 25
of 1970) the breach of which would disqualify a person from
election as a member of a local authority. Provisions in the stated
Paragraphs were similar to those applicable to members of
parliament.
 In the case of Civil Servants section 2 of the Leadership Code
Committee Act, 1973, provided that the leadership code in the
case of any person in the employment of the Government of the
United Republic, the conditions of leadership set out in the 2 nd
Schedule of the Civil Service Regulations of 1970 would constitute
the leadership code for that cadre of public leaders. In the case of
any other public officer it was provided that the leadership code
for this cadre not covered by the other categories would be such
conditions of leadership as may be prescribed by the President, or
other authority having powers so to do in relation to the office held
by the public officer. But where no such conditions were in place
the conditions applicable to the local authorities were deemed,
mutatis mutandis, to be the conditions of leadership prescribed
in relation to such office.

The Act further defined who is a leader and it practically reproduced

the TANU leadership codes definition. It however added any
person who in the opinion of the Committee is a leader of an
Ujamaa Village The Committee was constituted of a Chairman who
was a presidential appointee, and not less than two and not more
than three other members also appointed by the President 13. The
Committee was to be assisted by a Secretariat whose officers were
Civil Servants. The jurisdiction of the Committee was to enquire
into any alleged or suspected breach of the leadership Code by any
Public Officer. Every inquiry conducted by the Committee was to be
private14. The proceedings before the committee were to be judicial
proceedings and except for state privilege all kinds of evidence
could be produced before it.15

The decisions of the Committee were to be forwarded to the

President for further action as such they were largely
recommendations. The reports of the Committee were confidential
and could not be disclosed to any person other than the President
or his delegate. The President had options of taking action against
the Public Officer either on his own or in consultation with the then
powerful TANUs National Executive Committee.16 The failure of the
Committee from making an inquiry or reaching a verdict was not
13
Section 3
14
Section 4 (2)
15
Section 13 (4)
16
Section 10
 however a bar to further legal proceedings against the Public
Officer.17

The failure to attend proceedings, or obey the orders of the

Committee constituted as criminal offence punishable, if convicted,
to a fine of not more than Ts. 5,000/= or imprisonment not
exceeding two years, or to both such a fine and imprisonment. 18
But offences under the Act would only be prosecuted with the
Attorney Generals consent.19

We have dealt in relative detail with this Act because it has a lot of
kinship with its successor, the present Leadership Code of Ethics
Act, 1995, which is the focus of this review. The significant elements
of the Act were thus as follows:

(a) The Act gave statutory recognition of TANUs

Leadership Code and applied it to Public Leaders, in the party,
and public servants in general. The assumptions here was
that TANU as the sole ruling party had jurisdiction over all
public leaders and its ideology and conception of public
leaders ethics was deemed to be part of the Public Ethic.
Obviously for those who detested Nyereres Ujamaa and its
socialist leanings they had no sympathy for such a Code,
grounded as it were on a socialist world view. Ujamaa
appeared to its critics to have stifled business acumen and
activity and appeared to divorce arbitrarily economic activity
from leadership. Hence the misconception that is current
even today that such a divorce of business from politics is a
creature of socialism and not necessarily an attribute of good
governance.

(b) The President had an over-arching role in

supervising the adherence to the leadership code. It made
sense that his office was a focal point of authority as in both
the ideological forum (i.e. the TANU party) and in the Official
forum (i.e. Government and its parastatals) he was the
supreme public leader. The exemplary integrity of Mwalimu

17
Section 10 (3)
18
Section 13 (1)
19
Section 13 (5)
Julius Nyerere created the myth that the President by dint of
example was the superintendent and the role model for
ethical leadership. The monopoly and supremacy of the party
was exemplified in the extreme glorification of its Chairmans
wisdom by the then current slogan Zidumu fikra za
Mwenyekiti long live the thoughts of the Chairman.
Statutory provisions appear to have been tailored around the
persona of this extra-ordinary personality. With the retirement
of Julius Nyerere in 1985 and the entrance of political
pluralism the ideological monopoly of the party subsided and
thus the Presidents acts in the public sphere were
increasingly being called into question.

(c) It appears to be a pre-condition that is

consistent throughout these earlier provisions that any
information or report of proceedings done under the
leadership code Act is confidential. Public scrutiny of the
affairs of public leaders was circumscribed. Transparency was
therefore remarkably low. The present Acts seem to have
inherited this attribute.

(d) That the creation of a formal system of

regulating public leaders ethical conduct was not punitive
and it appears to have been rather educative and based on
guidance rather than punishment. It was an inspirational
code of conduct and not overly prescriptive. It is important to
remember that these Acts were passed notwithstanding the
existence of anti-corruption statutes which were basically
punitive. The intention must have been to create an
alternative scheme for the regulation of public leaders,
exhortative in character and complementary to the penal or
prescriptive regime. The structure of the Permanent
Commission of Enquiry, and that of the Committee of the
Leadership Code Act, were similar in that the punitive thrust
was left to the wisdom and discretion of the President. Hence
reports or rather awards of these two organs were basically
in the form of recommendations. Today those two institutions
exist in a pluralistic post-socialist era in the form of the
Commission for Human Rights and Good Governance
(for the PCE) and the Ethics Commission (for the
 Committee of the Leadership Code). No wonder when Justice
Kisanga of CHRGG in the proceedings against government
functionaries in the Nyamuma Case sought to enforce a
decision against those functionaries the government
stonewalled as the award was deemed to be just a
recommendation as in the old style.20 The Legal and Human
Rights Centre (LHRC) took the matter to the High Court
arguing that the Government has to enforce the CHRGGs
recommendation and that Court held it has no jurisdiction to
interfere into the Commissions recommendations. The LHRC
went to the Court of Appeal and in January 2009 got a
favourable finding by the Court stating that the High Court
erred in not considering the merits of the case and it has
jurisdiction.21 This decision has given a significant boost to
the image of the Commission or else its decisions would have
be rendered useless and a waste of scarce public resources.
The lesson being that this path-dependency mindset and
form of legislative enactments ought to be overhauled
completely to suit the present democratic pluralistic era. In
the case of the present-day Ethics Tribunal its structure is
statutorily designed to be similar to that of a Commission of
Inquiry under Cap. 32.22

It is however a positive achievement of the TANU leadership in

recognizing that leadership has to be cultivated and the ethical
dimension be enhanced through institutional arrangements
bolstered by the law and rules.

If measured against the principles of leadership as enumerated in

the Nolan Principles of Public Leadership some aspects of the TANU
Leadership Code scheme cannot stand the test especially with
regard to principles of openness and accountability. The
confidential nature of the reports and conduct of proceedings
cannot augur well with transparency. The publics oversight of its
leaders would thus inevitably be compromised under the cloud of
secrecy, as it were. More so in the present day circumstances the
President as the ultimate appointer of the Civil Service stands in

20
See Human Rights in Tanzania Reports by the Legal and Human Rights Centre (LHRC)
21
See http://www.policyforum-tz.org/node/6451 - LHRC WINS COURT APPEAL (NYAMUMA HUMAN RIGHTS).
22
Section 26 (10) of the Public Leadership Code of Ethics Act, Cap. 398.
 conflict of interest where his principal officers are subjected to
scrutiny. Questions arise whether his office should solely be the
ultimate arbiter of issues concerning integrity of public leaders.

With this background in mind we undertake herein a review of the

Leadership Code of Ethics Act by first making reference to the
constitutional mandate for the legislative scheme, secondly by
briefly outlining the Act itself and by making some comparative
commentary.

3. Establishment of the Ethics Secretariat: The

Constitutional Mandate
The Ethics Secretariat is a creature of the Constitution of United
Republic of Tanzania. Under Article 132 of the Constitution the
Ethics Secretariat is established.23 The Secretariat is empowered
and is given authority to inquire into the behaviour and conduct of
any public leader for the purpose of ensuring that the provisions of
the laws concerning the ethics of public leaders are duly complied
with. The definition of who is a public leader is left to the particular
enactments concerning the ethics of a particular cadre public
leaders24. Specific provisions exist under Leadership Code of Ethics
Act, Cap. 398 that define who is a public leader. The Ethics
Secretariat is constituted by an Ethics Commissioner and such other
employees whose number shall be specified by the laws enacted by
Parliament.

Similarly Parliament is enjoined to enact a law stipulating basic rules

of ethics for public leaders which shall be complied with by all
persons holding public office which shall be specified by
Parliament.25 The constitutionally directed content of Rules of Public
Leaders Ethics appear to be the legal pillars for the formal codes of
ethics. The Constitution states that these Rules of Ethics shall :-

a) Identify office holders who shall be subject to the

rules of ethics.

23
Article 32(1) of the Constitution of URT. These provisions came into being through the 12+9
Amendment of the Constitution (Act No. 12 of 1995 which be effective in July, 1995)
24
Art 132(2).
25
Article 132(4)
 b) Require such holders of Public Offices to make
formal declarations concerning their assets income
and liabilities.
c) Prohibit conduct that portrays a leader as a
dishonest, practices favouritism or lacks integrity; or
forbid conduct that tends to encourage corrupt
practices in public affairs or jeopardizes public
interest or welfare.
d) Prescribe penalties which may be imposed for
breaches of codes of ethics.
e) Provide for procedure, powers and practice to
ensure compliance with the code of ethics.
f) Prescribe any other provisions necessary for
promotion and maintenance of honesty,
transparency, impartiality, and integrity in the
conduct of public affairs and for the protection of
public funds and any other public property.

These requirements are in line with the seven principles of public

life: Selflessness, Integrity, Objectivity, Accountability, Openness,
Honesty and Leadership.

Other provisions of the Constitution that touch on the question of

ethical leadership are provisions which provide for the measure of
ethical integrity to be the basis upon which a public leaders
competence might be judged upon. In the case of the President
where he is impeached by Parliament one of the criteria for
initiating such proceeding is failure to adhere to the leadership code
of ethics. Similarly the Prime Minister, Ministers and Regional
Commissioners may be required to vacate office where they are
shown to have conducted themselves in an unethical manner.
Mechanism The same provisions apply to members of parliament
who may be disqualified for having breached the code of leadership
ethics. Members of the Judiciary are also specifically required to
adhere to judicial standards of ethical conduct.

The constitution is emphatic on this score and gives mandate for

the establishment of a mechanism that would restrain conflict of
interest and enhance accountability of Members of Parliament by
declaration of their interests, assets and liability in a formal manner.
Article 70 of the Constitution provides:
 70.-
(1) Every Member of Parliament shall be required to submit
to the Speaker two copies of a formal statement regarding
his property and the property of his spouse. The statement
shall be made on a special form prescribed by law enacted
by Parliament and shall be submitted from time to time as
shall be directed by such law.

(2) The Speaker shall transmit to the Ethics Commissioner,

a copy of every formal statement submitted to him in
accordance with the provisions of this Article.

(3) Parliament may enact legislation for the purposes of

making provisions designed for the protection of the
statement of property submitted by a Member of
Parliament in accordance with the provisions of this Article
and to ensure that persons unauthorized or not concerned
do not get the opportunity to see the statement of
property or know its contents.

The Constitution lays down the requirement of registering

declarations and also the confidentiality of those declarations. It is
within these constitutional parameters that we review Cap. 398.

4. Overview of THE LEADERSHIP CODE OF ETHICS

ACT, CAP. 398

The Public Leadership Code of Ethics Act Cap. 398 (Act No. 13
of 1995, amended by Act No. 5 of 2001) came into force on the 1st
of July, 1995. The Act is constituted by six parts, as follows:-

I. Preliminary Provision (ss.1 4)

II. The Basic Elements of Code of Ethics (ss. 5 7)
III. Code of Ethics Applicable to all public leaders
(ss. 8 15)
IV. Supplementary Provisions Applicable Ministers
and Regional Commissioner (ss.16 17)
V. Administration and Enforcement (ss. 18 26)
VI. Miscellaneous provisions (ss. 27 32)
 Under section 31 (1) and (2) (a) & (e) of the Act the President, in
consultation with the Minister responsible for Local Government,
has enacted subsidiary legislation, namely, the Public Leadership
Code of Ethics (Declaration of Interests, Assets and Liabilities)
Regulations, 1996 ( amended by GN No. 261 of 2001). The
Regulation sprovide for the registration procedures of Declarations
of Assets and provide for the forms of the Register and the
Declarations.

5. Comparative Legislative Schemes on Public

Code of Ethics: Comparison with Uganda and
Kenya

The World Bank Framework

i. We have stated that a framework for an Ethics Code may
be derived from a set of general principles that may be
applied to a given cadre. For public office we have
referred to Lord Nolans Seven Principles of Public
Leadership: selflessness, integrity, objectivity,
accountability, openness, honesty and leadership. These
principles are fairly reflected in the Leadership Code of
Ethics Act of Tanzania. We say fairly because at times
salutary words or phrases are used in the Act in the most
grave manner only to be contradicted within the
provisions.26 However, in undertaking a comparative
analysis of Cap. 398 we have adopted the World Bank
framework for Asset Disclosure of public officials27 for
considering similar statutes of neighbouring countries of
Kenya and Uganda, using seven basic criteria:-
i. Historical Information,
ii. Coverage of the law;
iii. Filing Frequency and Method;
iv. Content of the Declaration;
v. processing of the Declaration;
vi. Punishment for Breach and
vii. Public Access to Declarations.

26
-Mashamba (Nola), - Mujumba
27
http://www1.worldbank.org/publicsector/civilservice/assetsDimensions.htm
I. Historical Information.

Tanzania
The Tanzania Statute was passed in 1995 (and was amended in
2001). This statute is preceded by the Committee for the
Enforcement of the Leadership Code Act of 1973. The
establishment of the Ethics Secretariat is mandated by the
Constitution Article 130. Similarly the obligation to be ethical is
constitutionally recognized in the case of Ministers Article 57(g);
and the members of parliament to make Declarations of their
Assets by Article 69; and for a Register to be established Article
70. The Constitution under Article 67 (d) is emphatic that one of
disqualification of an MP is conviction of any offence in breach of
ethics. The Speaker of parliament is similarly bound under the
terms of Article 84 of the Constitution, he must vacate his chair
if he is found to be in breach of the Code of Ethics (Article 84(7)
(h)). The Constitution also defines what is a code of Judicial
Ethics for Judges in the service of the Courts to follow. (Article
151).

Uganda
The Leadership Code Act, 2002 of Uganda was passed by the
Ugandan parliament to provide for a minimum standard of
behaviour and conduct for leadership to require leaders to
declare their incomes, assets and liabilities to put in place an
effective enforcement mechanism and to provide for related
matters. The Act is much more elaborate than Cap. 398 in the
interpretation part where such words or phrases like conflict it
of interest, benefit, declaration, agent, etc. are defined.
The Constitution of Uganda under its Chapter 14 provides for
the Leadership Code of Conduct. In four precise Articles
parliament is directed to enact a leadership code of conduct
for persons holding offices as may be specified by Parliament
(Article 233). The Code is to make provision for specified leaders
to declare their incomes, assets and liabilities from time to time;
prohibit conduct likely to comparable honesty impartiality and
integrity of leaders; or conduct likely to lead to corruption or
that is detrimental to public good or good governance. The Code
shall prescribe penalties for breach of the without prejudice to
 criminal prosecution. It shall also prescribe powers and
procedures for effective enforcement of the Code; and make all
the necessary provisions for promotion and maintenance of
honesty, probity, impartiality and integrity in public affairs;
protection of public funds and other public properties (Article 233
(2)). The enforcement of the Ugandan Code is enforced by the
Inspectorate of Government. (Article 234) A leader is
disqualified in Uganda where he is found to be in breach of the
code of conduct. The other details are dealt with in the Statute.

Kenya

In Kenya the Act to regulate the conduct of Public leaders is the

Public Officer Act 2003 and it is enacted to advance the
ethics of public officer by providing for a code of conduct and
Ethics for Public Officers and requiring financial declaration from
certain public officers and to provide for connected purposes.
The Constitution of Kenya (2001 ed.) is silent on provisions of a
Code of Ethics for Public Servants. The Constitution only
establishes a Public Service Commission. However the Draft
Constitution of 200428 has provisions of under Chapter 9 that
deal with Responsibilities of leadership (Art. 95) and also
establishment of an Ethics and Integrity Commission (Art. 99).
However as the Draft Constitution has yet to be adopted Kenya
does not currently have a Constitutionally mandated Public
Ethics framework.

II. Coverage of the Law on Asset Disclosure

Tanzania
Cap 398 under its Section 5 gives a list of public leaders who
have to declare their assets. This includes all high ranking
appointive officials covering about 27 individuals and/or groups
of official cadres. The application of the law extends to Zanzibar
and to Ambassadors and High Commissioner, representing
Tanzania abroad. Thus there is a cadre of Public officials that
are not covered by the Act. These however are covered by other
codes under the Public Service Regulations of 2003, Local
Government Regulations and professional regulations recognised
28
Source: The Constitution of Kenya Review Commission - aka the Ghai Commission.
 by particular professions or adopted by government agencies.
No similar rules for registration of Assets applies to them.

Uganda
Under the Leadership Code Act 2002 the coverage of the law
includes all leaders appearing on the two Schedules of the Act.
The Second Schedule to the Act, part A, gives the list of
Political Leaders, which innovatively includes A member of
the National Executive of any Political Party or organization Part
B of the 2nd Schedule deals with Specified Officer. The Asset
Declaration provisions are thus only applicable to these high
ranking officials. There is no separate law requiring appointed
officials to declare their assets.

Kenya
Similar to Tanzania the coverage of the Kenyan Act lists the
officers who are to be covered under its Section 2 which is the
interpretation section of the Act. However a Public Officer
includes any officer, employee or member, including an unpaid,
part time or temporary officer, employee or member of a
Government, national Assembly, Local Authority, or any Council
or Committee, Corporation or Board administering funs granted
by government, a Cooperative Society, a public university or
other law as prescribed by the Act. This is the most
thoroughgoing definition of a public officer in East African. The
Declarations of Income, Assets and Liabilities are enforced
against every Public Officer (s. 26)

III. Content of the Declaration

Tanzania
Section 11 of Cap. 398 provides for a list of properties and
assets to be declared. The Act under Sections 9, 10 and 11
makes a distinction between declarable assets and non-
declarable assets. The paradox of these provisions as stated
earlier is that matrimonial property is not required to be
registered (S. 9(3); while the properly of the spouse and
unmarried children is declarable (S. 9(1)(d)). Further properties
for non commercial use are similarly not declarable. As
 commented this is a significant loophole in the Tanzania code of
ethics.

Uganda
The declaration of income, assets and liabilities is made on a
form that covers details of the assets to be declared by the
Public leader. However the assets and properties of spouses and
children have to be declared separately.

Kenya
The scheduled format lists the kind of properties that must be
reported. There is a distinct part for income (Salary, emoluments
and investments income) and for assets (land, building, vehicles,
etc). This is similar to the Tanzanian form under the Regulations.
Liabilities are also declarable just as is the case in Tanzania since
2001. Information for the spouses and children of under the age
of majority must be filed separately.

IV. Filing Frequency and Method.

Tanzania
The law provides that on first appointment or taking of office a
Public leader musts give a Declaration in 30 days. After which an
annual declaration must be submitted, followed by a declaration
on the date of leaving office. This gives a relative wider space
for superintendence of any increase of assets whilst the leader is
in office.

Uganda
The filing of declarations by civil servants must be done, within 3
months of ones appointment or of becoming a leader and
thereafter after every two years in March.

Kenya
There is no requirement in Kenya for filing a Declaration on
taking office, however a Declaration ought to be filed annually. It
must be noted that in Kenya the submission of declarations is
done by all public officers.

V. Declaration Processing
 Tanzania
The processing of declarations is done by the Ethics Secretariat
where a public Official fails or is suspected that he has submitted
a false declaration the Ethics Commissioner may require him to
confirm or amend it. Declarations are not compulsorily verifiable
and the Ethics Secretariat has the option under Sections 18 -22
to initiate investigation or under a complaint procedure. There is
no requirement for the length of period a declaration would
remain in the register29. Maybe in Tanzania since the information
is largely confidential time limit has not been an issue. But it
would appear should Tanzania still find the secrecy, which is the
current situation, attractive then at least those records ought to
be open to the public after a certain period of time.

Uganda
The superintendence function in Uganda is within the Offices of
the Inspector General of Government (IGG). Chapter 13 of
the Ugandan Constitution sets up the Inspectorate of
Government and Article 233 establishes the Office of the IGG.
This Office has the focal function of enhancing integrity in
government, good governance and enforcement of the
Leadership Code of Conduct (Art. 225) Where a Public Leader
fails to declare his income and assets properly the IGG may
require him to account for any discrepancy or omission. The
leader must do so in 30 days from the date of the request. The
IGG therefore retains all powers of examining declaration.

Kenya
In Kenya oversight of the Public Officers Ethics Act is segmented
to several authorities under Section 3 of its Act. Hence a given
cadre of public officers would report to one Commission while
another Cadre to a different Commission. Nevertheless under
Section 27 of the Kenyan Act an Officer may be compelled to
give clarification of any discrepancy, omission or inconsistency in
the Declaration. The contents of the Declaration are confidential
according to Section 29(1) of the Act, and hence verification may
only be predicated upon this confidentiality. This situation is
even worse than that of Tanzania the declarations are
29
In UK Reports are Online.
 inaccessible to the Public. The records of the declaration are
kept for a period of 30 years after the leader leaves office.

VI. Penalties for Breach of the Code of Ethics

Tanzania
Section 15 of Cap 398 provides that where a public leader fails to
make a declaration without a reasonable cause it would be a
breach of the Code. It is unclear what kind of penalty arises from
such a breach. But where one gives a false declaration of assets
the general punishment for the breach, per S. 27(2), is a fine of 1
up to 5 Million Shilling or imprisonment for 1 year. The Ethics
Commissioner has to refer to a Tribunal any breach of ethics
(S.27 (3) (b)).

Uganda
Similar to what is provided for in Tanzania failure of filing a
Declaration is a breach of the Ugandan Code. But first as is the
case for Tanzania no clear punishment is specified (S.4(8)).
However the filing of false, misleading or insufficient declaration
is a breach of the Code and under S. 5(2) a leader who does not
rectify the error may be subject to a formal warning or caution or
dismissal.

Kenya
In Kenya the law is clearer. Where an official fails to submit a
declaration it is a breach of the Code and is liable for a fine not
exceeding Ksh. 1,000,000 or to imprisonment of 1 year, or both.
A similar punishment is in store for a public Officer who is
convicted, per S. 31, of submission of a false or misleading
declaration.

VII. Public Access to Declaration

Tanzania
The Public has access to the Register of Declaration under
Section 20(2) and (3) of Cap. 398. The method of accessing the
register is provided for under the Rules whereby by Rule 6 the
Commissioner must be satisfied that the Inquirer has no ulterior
motives other than for purposes of lodging a Complaint. Any
person who misuses that access privilege is guilty of an offence
and if convicted liable to a fine of Tshs. 10,000/= or
imprisonment for a term not exceeding two years or both.

Uganda
Ugandas Act treats all information lodged with the IGG as public
information (S. 7). Consequently on an application to the IGG on
a prescribed form such information is accessible.

Kenya
In Kenya the information lodged with the Declaration is
confidential so not accessible to the Public.

6. Consideration of the Framework of Ethics for

Public Leaders.

General Framework.

It is the Nolan Committee of UK that in 1995 set out what are

today considered to be general principles of public life.

1. Selflessness
2. Integrity
3. Objectivity
4. Accountability
5. Openness
6. Honesty
7. Leadership.

The last principle is one based on role modelling and practical

adherence to integrity standards in public and private life.
Mwalimu Julius Nyerere was such a role model. By dint of
example he managed to adhere to a strict regime of integrity. It
is possible that some kind of emphasis on professionalism does
not clearly stand out in the Nolan Principles. Yet if a Public
leader has to be accountable then competence becomes an
important element.

We consider here the leadership frameworks in Tanzania.

 A. Tanzanias Public Ethics Regime
As already stated this frame work is based on the
Constitution, the Leadership Code of Ethics Act (already
analysed herein), the Public Service Act, and the Local
Government Codes.

A.1 The Constitution

The Constitution provides for ethical integrity as a

qualification for leadership, both in the Executive,
Legislative and Judicial spheres of public life. Furthermore
the provision of the Ethics Secretariat, and the necessity of
declaration of assets, are a Constitutional requirement, and
hence gives a constitutional basis to the Leaders Codes of
Conduct.

A.2 Statutory Frameworks: The Leadership Code Act.

Cap 398

Under Section 6 of Cap. 398 the Act gives a framework for

a Code of Ethics. It considers about 10 elements or
attributes:-
A public leader must uphold the highest ethical
standards. Here the Codes mention most of the
elements of ethical conduct: honesty, compassion,
sobriety continence and temperance (6(a)).
A public leader has the obligation to, first organize
his affairs in a style that would bear the closest
public scrutiny and, Secondly, to declare all
property or assets owned by him, his spouse or
unmarried children in a procedure provided for by
law (6(b).
Public Officers must fulfil their official duties by
upholding the rule of law, public interest and give
due regard to merits of each case when making
decision (6(c))
The private interests of a public leader must never
undermine governmental action (6(d))
 Public leaders must avoid real, potential or apparent
conflicts of interest. Where conflict exist public
interest must prevail (6(e))
A public leader shall not accept or solicit gift and
benefits. He may however accept incidental gifts,
customary hospitality or other benefits of nominal
value . This exception similar to that which
approved Takrima has attracted criticisms (6(f))
A public leader shall not offer preferential treatment
to any person. Access to government services is
based on equality. (6(g)).
A public leader shall not take advantage of inside
information, unavailable to the public, for deriving
benefits out of it. (6(h))
A public leader shall protect public property from
misuse of any kind (6(i)
A public leader after employment with government,
on retirement or otherwise, shall not use his
experience for his own benefit or in a manner that
would bring ridicule to public service.

These basic principles are similar to those listed by

Nolans Committee. The one principle that requires
clearer emphasis is that of competence. This is covered by
the core value of professionalism. In the present past
accusations have been leveled against public leaders who
are holders of bogus degree and doctorates. The public is
thus placed under a serious dilemma of whether to trust
leaders as mere wise men or qualified professionals.
Obvious a clear statement on competence is needed. In
the case of the Public Service Code of Ethics, 1995, this
principle is covered by the requirement of pursuit of
excellence in service. The Code ought to include similar
provisions.

The Public Service Code of Ethics, 200530.

The Code of Ethics for public servants that are not covered by
Cap. 398 was published in 1995 under the Public Service Act. The
30
Made under S. 34 of the public service Act, 2002 (Cap. 298) and Regulation 65(1) of the Public Service
Regulations 2003
 Code contains eight principles: Pursuit of Excellence in service,
Loyalty; Diligence; Impartiality; Integrity; Accountability; Respect
of Law; and proper use of official Information. These elements
any contained in three core ethical values31.

First, is the core value of professionalism. This includes service

excellence, diligence, impartiality and use of information by
public official. We connect this with a claim professional
competency by public servants and clearly it is a most
appropriate.

Second, is the core value of Honesty which is defined by the

ethical principle of integrity. The very definition of corruption is
largely a failure of integrity.

Thirdly, the core value of responsibility, which contains the

ethical principles of loyalty to government, accountability to the
public, and respect of the rule of law.

We find the principles to be well defined and more definitive than

the Nolan Principles of Public Life. We recommend that the
Principles outlined in the Act should be strengthened by
incorporating the attributes or ethos and clarity found in this
Public Service Code of Conduct.

The Local Government Leaders and Staff Codes of Ethics.

There are specific codes of conduct for Local Government.32

These include:
o The Local Government (Officers code of
conduct) Regulations,33, 1990.
o The Local Government Service (Staff Code of
Conduct) Regulation,342000.

31
Doing What is Right A Manual on the use of the Code [URT PSC]
32
Section 176 of Local Government (District Authority) Act, Cap. 287; and Section 119 of the Local Government (urban Authorities
Act, Cap.288
33
G.N. 435 of 1990, M/u Section 15 of Act No. 10 of 1982 local Govt. Service Act; but now under the Public Service Act, Cap. 298
34
G.N. No. 279 of 200 (made under S. 20 A of Act No. 10 of 1982) but now under Cap. 298.
 o The Local Government District Authorities
(Councilors Code of conduct) Regulation, 35
2000.
o The Local Government (Urban Authorities)
(Councillors Code of Conduct) Regulations,
2000.36
These codes are almost generic. The significant observations to
be made here is that they are much more explicit and cover a
wider range of ethical situations than the Public Service Code. A
potential conflict exists in the sense that on one hand these
Codes appear as if they are grounded in the Public Service Act
regime and at times they appear not. A need is therefore real of
synchronising all these Codes with the Leadership Code of Ethics
Act and through the use of addenda customised the code to a
certain cadre if necessary. Otherwise overlaps would occur and
the provisions for the President to consult with the Minister for
Local Government under Section 31 of Cap. 398 would be
superfluous.

7. Areas of Concern in the Public Leadership Code

of Ethics Act.

In 1999, some ten years ago today, Philemon Mujumba

submitted a research paper for his undergraduate studies at the
Faculty of Law, University of Dar Es Salaam, entitled The
Efficacy of the Leadership Code of Ethics Act, 1995, in
Combating Corruption in Tanzania,37, and it has remained a
significant attempt at evaluating Cap.398. Later in 2001 the Act
was amended and certain improvements were made. In that
paper Mujumba submitted a critique of the Act that pointed at
several areas of concern. In 2001 the Leadership Code of Ethics
Act was amended and several areas of concern pointed out by
Mujumba were rectified. For example, the extension of coverage
of the Act to more decision making Public Leaders, and also the
inclusion of liabilities in declaring the interests of a leader, etc.

35
G.N. 280 of 2000 under S. 176 of Cap. 287.
36
GN. No 281 of 2000 of Cap. 288 The Local Government (Urban Authorities)Act, 1982. Note: The Public Service Act, Cap. 298
repealed. The Civil Service Act, No. 16 of 89; The Fire Services Rescued Act. No. 3 of 1985. The Local Govt. Service Act No. 10 of
1982. And the Teachers Service Commission Act, No. 1 of 1989 under S. 35. But under Section 36 it saved all the Codes created
under it + the Commissioner too. To continue until such time that they are replaced by legislation.
37
Mujumbas dissertation was supervised by Prof. P. J. Kabudi (presently the Dean Faculty of Law)
More still the Public Service Act in 2003 issued the Public Service
Regulations under which all Public Servants are covered. Local
Governments also from 2000 have issued a variety of leadership
codes. Legislatively Tanzania has made commendable progress
in enactment of the codes in every sphere of public life.
Mujumbas critique therefore, much as it is still relevant, does
not tell the whole story as it should be told today. In 2004
however another important analysis of these Codes was done by
NOLA entitled When the Operation of the Law Enhances
Corruption in Tanzania: An Enigma in a Legal Regime Needing
Reform, its lead researcher being Clement Mashamba, and
Advocate, and human rights activist. Many of the criticisms of
Mujumba were adopted but also a holistic critique of the laws
regulating corruption were reviewed. Since then however we
have the PCCA Act coming in 2007 and other developments not
in place then. The Ethics Secretariat itself has come up with
additional criticism of the Act hence the need for this review.
These historical critiques and some additional concerns merit
some consideration as follows:

The Definition of a Public Leader

First, there is some weakness in the Act with regard to the
definition of a Public Leader. This seems to be a persistent
problem. How far can the net go. In Kenya the Act covers all
Public Officers. In 1999 when Mujumba wrote his critique some
public leaders such as Deputy Principal Secretaries,
Commissioners, and Directors in Government departments and
high ranking officials in Parastatals were not included in the
category of leaders. This criticism was partially resolved, as
stated above, by the amendment of the Act in 2001. The list, as
expanded, does not still include leaders of political parties. In
Uganda the public leader include leaders of political parties. It is
useful to include leaders of political parties who are by virtue of
their offices potential aspirants of public office or have significant
influence over the Government of the day.

Declaration of Assets
The second area of concern revolves around the declaration of
assets. Before 2001 it way unclear whether a Public Leader is
required to declare his liabilities. Section 9(6) of the Act has
 cured that defect and liabilities are also declarable. But
nevertheless the legislation is still found wanting where it makes
a distinction between declarable assets and those that are not
declarable. Section 10 still provides that assets that are not of
commercial character are not declarable.

The other objectionable distinction is where the code makes a

distinction between matrimonial property and property which is
not. Again this splitting of hairs generates unnecessary
suspicion. There is no justification whatsoever why a Public
Leader should not declare property that is not matrimonial or
that is not held for commercial purposes. These distinctions
should be abolished by following the Kenyan example and
require Public leaders to declare their properties assets and
liabilities.

Gifts Nominal and Customary Hospitality.

The Act also makes some ambiguous references to gifts,
customary hospitality and other nominal advantages. This
reference to takrima - like gifts generates a lot of concern.38
We recommend as follows:

(i) All assets of leaders ought to be declarable without

distinction.
(ii) A gift of less than a certain amount in value (Say
Tshs. 50,000 as provided today) should not be
declared but must be reported in a departmental
register of gifts. Any non monetary hospitality
ought also to be reported if it is too frequent or
involves the receipt of tickets or accommodation
being paid for.

Public Access of the Register.

38
See Nola Report.
 The Act highly restrains any individual from the public through
bureaucratic hurdles to access the Register. The procedure
involves a person who must show the Ethics Commissioner that
he has a genuine concern for accessing the Register. The
Commissioner has discretion to give permission or not. If one is
given permission and uses the information not as intended that
person would be guilty of an offence punishable by fine or
imprisonment conviction. The information may not be used for
used for media purposes or for defamatory purposes.39 This
aspect of the code has faced a lot of criticism. Apart from
Mujumba the other critics of the Code are mainly from the NGOs.
The NOLA report is largely similar Mujumbas concern, and NOLA
is one of the Petitioner, to the High Court for a Constitutional
Case where the petitioners are praying for Judicial Intervention in
amending the Code to increase public accessibility to it. NOLAs
proposals for the amendment of the Act are four (see p.102 of
their report) and 3 of the proposals are on access to the Register
of assets! We complement the concern as worthy of public and
official attention.

Yet considering the matter further there is an obvious need of

balance between the right of the public to know and the leaders
right to privacy. More so when politicians are known to use the
tit-for tat arguments in political motivated smear
campaigns or clear defamation. The Constitution under Article
70 provides for confidentiality of the information in the case of
MPs.

So the rules of confidentiality do have a Constitutional mandate.

But total non disclosure also completely puts a bar on public
superintendence of public leaders an important component in
enhancing integrity and accountability. It is suggested that the
regulations be amended in such as way that access would be
controlled and the use of the information for wrongful purposes
be restricted. A good example is the Rules of Guidance given by
the Ethics Commissioner for the UK Parliament. The Rules do not
bar access to the Register but control access through procedures
that assure responsible access to information. Therefore much as
39
Regulation of the Declaration of Interests Assets + Liabilities Regulation (G. N. No 108 of 1996 and 261
of 2001
 there is some constitutional justification for confidentiality, it is
obvious that constitutions are not cast in stone and amendments
should be done to enhance transparency.

Penalties for breach of the Code.

The punitive provisions of the Act are not clear enough nor are
they drafted to provide for similar penalties where breaches
occur.

The constitution provides for leaders to vacate their offices

where they are found to be in breach of ethical principles. The
President may be impeached (Art. 46 A(2)). The Prime Minister,
Ministers and Regional Commissioners may also be removed
from office if they breach the Public Leaders Codes of Ethics, and
Members of Parliament too (Article 11(i)(d)). The Code puts in
place an elaborate process for filing a complaint with the
Commissioner for Ethics; the Secretariat investigating to
establish a prima facie case; then appointment of a Tribunal to
hear the case. In whatever case the Tribunal makes
recommendations as to administrative actions, criminal
prosecutions or other further actions to be taken as it thinks fit. 40
The Tribunal is styled in the manner of the defunct a Commission
of Enquiry ( recall the PCE) and Section 26(10) equates it to a
commission of inquiry! What then would the Executive do with
the recommendation? The function of the Ethics Commission and
the Tribunal ends there. Here again the Report is not Public
although there is some reference that it may be laid before
Parliament and it is not clear for what purposes. It is
recommended that a summary of the Conclusions of the Tribunal
be published. The proceedings are conducted in public (under S.
26(5) and there is not point for the Public not to be informed of
its findings.

The in equity of the penalties provision i.e. Section 27, is rather

surprising. Whilst an individual member of the public who makes
an unfounded allegation against a Public leader knowing the
same to be false is punished with either the payment of a fine of
not less than Tshs. 200,000 and not more than Tshs.
1,000,000/= or to imprisonment of not more than 2 years; a
40
S. 26 (8)
public leader on the other hand if he commits a similar offence
against another leader gets a fine of one Million shillings and
imprisonments for a term not exceeding one year for a member
of public and one year for a leader? We recommend that the
punishment clause should contain the same penalties. The first
principle of formal justice is to treat like cases alike, the public
leader appears here as some privileged offender!

Conflict with other Statutes

In our reading of the statutes we find that a significant amount of
work has been done regarding legislating for a Code of Ethics in
the Public Service. We have found a lot of materials relating to
codes of ethics especially from the Public Service Commission.
The Ethics Secretariat is however the only agency that has a
systematic procedure to record the declaration of assets. There
are Local Government regulations which refer to declaration of
property but these are not comprehensive. We find no conflict
on that score. What may be a ground for some conflict is in the
superintendence of some leaders of say local government who
may be the subject of both regimes, for example, the Member of
Parliament who is also a Councillor by virtue of his office. Here it
is important to have uniformity and find ways of resolving the
conflict in favour of the Code under Cap. 398.

Yet we have seen some concern about public leaders affairs not
transparent enough to bear highest public scrutiny as the Act
provides. We recommend a review of the Statute:
(a) To require all public leaders and Officers to
declare their interests, assets and liabilities.
Similar to the Kenyan Statute.
(b) To require all Public leaders and officers to
make the declaration on the assumption of any
public office, annually after that; and finally on
vacating office.
(c) The Statute to make a distinction between High
Ranking public leaders (both elective and
appointive) whose Declarations must be
accessed by the public and centrally registered
with the Ethics Commissioner, and other Public
 leaders and Officers whose declarations are to
be kept in their confidential files. Their reports
may be available for public scrutiny where
genuine complaints of breach of Code of Ethics
are levelled against them. The restriction
presently applicable to public leaders should be
applied for medium and lower level public
leaders and officers. The Kenyan Act was
provided for this and the requirement appears
not to be onerous.

The Question of proper management of Conflict of interest.

The President in his recent speech pointed at the virtue of
making a distinction between the business activities or
Commercial interests of public leaders with those of governance.
This is a legitimate concern and true enough a lot of ethical
breaches arise when these two spheres are mixed. In Platos
The Republic the Guardians, or the Rulers, never deal with
business affairs, they devote their lives to governance. Even for
the Christians, Jesus drove merchants from the Temple. Worship
cannot be mixed with commercial activity based on the buy
cheap, sell dear principle which is essentially robbery and
exploitation of ignorance.

The challenge is how to make this separation real. What has

been suggested is the possible use of blind trusts.41 This device
has been used extensively in many countries. Basically it is a
device based on the law of Trustees.42 Here a Trustee
(Mdhamini) is appointed to hold the legal interests of a
Beneficiary (say a the Public leader in our case) as if the trustee
were the owner of the assets or interests of the beneficiary. The
Trustee would make all decisions concerning the properties of
the beneficiary without communicating with him (hence the word
blind trust). In theory then the beneficiary would avoid his
business interests interfering with his official actions. Of course
this fiction has so many loopholes; principally depending on the

41
According to Blacks law Dictionary a Blind Trust is A Trust in which the Settler places investments under the control of an
independent trustee, usually, to avoid a Conflict of Interest
42
A Trust involves three elements, namely, (1) a Trustee who holds the Trust property and is subject to equitable duties to deal with
it for the benefit of another ; (2) a beneficiary to whom the trustee owes equitable duties to deal with the property for his benefit. (3)
Trust property, which is held by the trustee for the beneficiary (Blacks Law Dictionary 7th Ed)
power of other legal and moral institutions it is easy to use a
third party to get information or give information to the Trustee.
Again what of the properties of the spouse and minor children
must these also be placed under the Blind Trust? What of their
entitlement to run their affairs without the constraint of the
public leaders office?

It is recommended that provisions for the use of these Blind

Trusts or such devices be developed by:

(a) Determination of the different devices that

may be used i.e. the traditional Blind Trust
and/or the disposition of the property to a
professional trustee or a family trust managed
by an independent professional trustee.
(b) The identification and qualification of
individuals or bodies corporate that may be
retained to perform the functions of a
Professional Trustee who would have the
obligation to report properly to on
management of the property be provided for.
(c) Amendment of the law of Trusts and
succession in a manner that would
accommodate the concept of Blind Trusts.
(d) All Public leaders to place their commercial
interests and assets under such authorized
Trusts. This may not involve public leaders
who are not required to report their affairs with
the Ethics Commissioner.

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