THE ERRUPTION OF ESCROW

The Director of VIP Engineering and Marketing Mr James Rugemalira and Mr Harbinder Singh Sethi of Pan Africa Power Solutions Tanzania Limited (PAP), appeared at the Kisutu Magistrate Court yesterday (19/06/2017) facing six counts of economic sabotage and occasioning a loss to the government of US $ 22.1 million dollars and 309 bn/-.

State Attorney Paul Kadushi read the charges against them after which they were remanded since the lower court has no jurisdiction to prosecute such charges unless they get an approval from the Director of Public Prosecutions.

Resident Magistrate Huruma Shaidi explained further that economic sabotage crimes can only be heard at the High Court but that the DPP can in some instances issue an approval for the lower court to hear the charges.

The State Attorney informed the court that between October 18, 2011 and March 19, 2014, in Dar es Salaam, the duo conspired to commit offences in South Africa, Kenya, India and elsewhere.

During a session of parliament in November 2014, the august House had made eight resolutions one of which was for investigations and arrest of all people who were involved in the scandal.

The resolution followed a report by a special committee of the Parliamentary Public Accounts Committee (PAC) which was formed to probe the affair.

The court heard yesterday that between November 28 and 29, 2011 and on January 23, 2014 at the Stanbic Bank headquarters at Kinondoni and Mkombozi Bank, St Joseph Branch, the two businesspersons, through deceit, received the said amount from the Bank of Tanzania (BoT).

Before the arraignment of the duo yesterday, the Director General of Prevention and Combating of Corruption Bureau (PCCB), Mr Valentino Mlowola, told a news conference that the agency had all along been investigating the scam which rocked the country in 2014.

“The two will initially be brought before the Kisutu court before some judicial arrangements are made to transfer the case to the Corruption and Economic Crimes Division of the High Court,” Mr Mlowola explained to journalists.

The scandal involved the transfer of 309bn/- from an escrow account at the Bank of Tanzania (BoT), where it was jointly opened by Tanzania Electric Supply Company (TANESCO) and IPTL pending legal wrangles over capacity charges between the parties before domestic and international courts. IPTL, which operates dieselfired turbines at Tegeta in Dar es Salaam, was initially founded through a joint venture between a Malaysia company, Mechmar (70 per cent) and Mr Rugemalira’s VIP Engineering and Marketing Limited (30 per cent).

It is still unclear how Mechmar sold off its shares to another company, PiperLink of British Virgin Island, which later allegedly sold its stake to Mr Sethi’s PAP.

Billions of shillings were then paid to Mr Sethi from the account after he convinced officials that he had acquired a 70 per cent stake in IPTL. He then proceeded to acquire the 30 per cent stake which was owned by VIP Engineering and Marketing.

To seal a deal with Mr Rugemalira’s company, it is said that Mr Sethi had to pay a whopping US $75 million dollars (about 165bn/-) to acquire the 30 per cent.

As the scandal ravaged on with calls for actions from the parliament and subsequent investigations by PCCB and audits by the Controller and Auditor General (CAG), several top government officials were sacked while others resigned.

Among those who resigned were the then Minister for En ergy and Minerals, Prof Sospeter Muhongo and Attorney General Fredrick Werema, while Prof Anna Tibaijuka, then Minister for Lands, Housing and Human Settlements Development, was fired by former President Jakaya Kikwete.

The former UN Habitat boss was fired after it emerged that she had been paid 1.6bn/- by Mr Rugemalira. The funds were suspected to be part of monies from the escrow account.

The list of other individuals said to have pocketed some of the funds include former Minister for Energy and Minerals William Ngeleja and former Attorney General Andrew Chenge. President Kikwete also dropped the then Permanent Secretary in the Ministry of Energy and Minerals, Mr Eliakim Maswi.

Source: Daily News Tanzania (20/06/2017).

REPRESENTATIVE BUREAUCRACY

Representative Bureaucracy
©KATEMBO

The consensus among scholars interested in representative bureaucracy is that the term was first coined by J. Donald Kingsley in the 1940s to examine the representativeness of the British civil service, although it had a more limited sense than the one it is currently understood to have (Krislove, 1974).

Kingsley was of the view that civil servants carry the policies of the governing party, and that those policies should reflect in all aspects of democratic institutions. He argued that representative bureaucracy is necessary because there need to be at least some administrators sympathetic to the programmatic concerns of the dominant party (Kingsley, 1944). To him, therefore, “the degree to which all democratic institutions are representative is a matter of prime significance” quoted by (Naff, 2011). This means that the representative patterns is requisite in the community as Denhardt and deLeon, (1995) argued that the degree of representative is necessary because  “the dominance of social, political, and economic elites in the British bureaucracy resulted in policies and programs that failed to meet the needs of all social classes.

The concept of “representation” seem to be more complicated in defining ever since many scholars tries to give out their views in the expense of their thought which are different from others for instance Meier (1993), thinks that representation is not  a process that is amenable to rigid specification. From this conception he argues that a representative exercise opinions and choices on behalf of the represented. According to him the bureaucracy could be effective if it “produce the same outcome that the represented person would produce if the represented person could be there and actively participate in the bureaucratic process”

Again Mansbridge (2003), give her view in representation from which she called it “political representation”. The process involves and may take different forms namely promissory, anticipatory, gyroscopic, and surrogate. According to her promissory is the traditional model of representation which its main focus is on the idea that during campaign representative makes promises to constituents, which they can keep or fail to keep. Anticipatory representation focuses on retrospective voting which concentrate much on the decision and the approval of the constituent and not the representative promises during the last election, in gyroscopic representation the main concern is the basis of action to conception of interest and principles derived from the representative own background moreover surrogate representation happens when a legislator represent their constituent outside their territory (district)

Another concept of representation has been defined by Krislove (1994), he argued that representation is seen as actors speaking, advocating, symbolizing and acting on behalf of others in the bureaucracy rather political arena. So krislove explain the behaviour of actors in the issues concerning the presentation of opinion and interests of people in the bureaucracy.it generally means the action done by representatives on behalf of other (majority interests)

Forms of representation in representative bureaucracy

Apart from having different definitions according to different perceptions of scholars, representation is of different forms in the representative bureaucracy, (Mosher, 1982) identified two forms of representation in representative bureaucracy as Passive or descriptive and active or functional. The according to him “Active or functional representation” means that the representative will be pushing the opinions and interests of the majority. It generally means that the represented group in the bureaucracy benefits from their representatives. In the side of “passive or descriptive representation” means that the bureaucracy should consists of the same demographic origin (gender, race, income, class, and religion) as population it serves. This means that the bureaucracy should consist of social characteristics of the community. Unlike active representation this form of representation does not care about how the represented social group benefits from their representatives ever since it is more of demographic consideration rather than the workflow and productivity.

The role of representative bureaucracy in Tanzania

Representative bureaucracy emerged as the panacea of bureaucratic illness ever since the old/traditional approach/paradigm of bureaucracy seemed to be much discriminative by favouring and basing on the merit of people. Elite were highly privileged in the sense that the lower class lacked representation in the bureaucracy at all. So To either avoid or deal with this dilemma, many scholars have endorsed the theory of representative bureaucracy, according to which bureaucratic power can be made more responsive to the public if the personnel who staff administrative agencies reflect the demographic characteristics of the public they serve. From that point of view, what are the roles of representative bureaucracy?

Firstly, as explained in one form of representation as passive representation: “passive representation is important because variations in demographic background are associated with differences in socialization experiences. Individuals’ attitudes and values are shaped by their background and socialization experiences (Selden, 1998).  In this sense the representative bureaucracy ensure the equal or at least equal representation of people. Without disregarding the presence of minority who are more likely not to be represented the representative bureaucracy ensures and observes their presence. Representative in Tanzania is actually practised by using the house of representative (legislature) as the point of reference, Tanzanian legislature comprises of representatives from different areas of their jurisdictions these are districts which stand as constituency or district comprises more than one constituency, also it consists of women special seats, people with disabilities who stands for representing their group. And this also has been articulated in the united republic of Tanzania constitution (URT) Of 1977 article 66(1) paragraph (a) it shows the categories of members, states the members elected to represent the constituencies (MP’s), also article 66(1) paragraph (b) Observe the women members that will be elected by political parties represented in national assembly on the basis of proportional representation amongst the parties. So this shows how social interest are represented in the Tanzanian national assembly, so the presence of different political parties in the parliament with their representative from different areas(constituencies) and the sight of women who are elected from different political parties on the basis of proportional representation mark that social interest and public demands shall be presented.

Moreover, it is also believed that representative bureaucracy can lead to the resolution of ethnic conflicts, ethnocentric ideas or views in the organization mainly a caused by low representation of model for all members in the community so it can happen the dominant class having the tendency of favouring a particular religion, race, origin which seem to be the same to it. So it is representative bureaucracy could have avoided them through symbolic (passive) representation in the bureaucracy,(selden,1998). So in Tanzania let’s concentrate on the president appointment of ministers (cabinet) as stated in the constitution of of United Republic of Tanzania in article 36(2) that
“The President shall have the authority to appoint persons to hold positions of leadership responsible for formulating policies for departments and institutions of the Government, and the Chief Executives who are responsible for supervision of the implementation of those department’s and institution’s policies in the Service of the Government of the United Republic, in this Constitution or in various laws enacted by the Parliament, which are required to be filled by a appointment made by the President”
From this contextual analysis, his excellence Tanzanian head of the state appointed his cabinet members from different areas and with different race, tribe and other ethnical criteria’s. Here the question emerges “what if President Magufuli could only appoint the Sukuma in the cabinet?” or “if the cabinet or parliament could only compose of people from Mwanza?”  in the actual sense the instability could occur for demanding representation in both cabinet and parliament.

Furthermore, representative bureaucracies have the sense of democracy. In this regards the conception of “representation” itself shows how democratic patterns in the community and this is simply because in the state with representative bureaucracy, minority enjoy privileges like that of majority. Tanzania being one of the state that work under representation model it people are well represented and they have the rights in any political, social, economic participation in the community, from this conception Tanzanian enjoy several rights democratically, it even explained and well stated in the United Republic of Tanzania Constitution of 1977 article 12 and 28, these articles explain the privileges that shall be enjoyed by the Tanzanian civilians, and well-articulated in article 29(1) that
“Every person in the United Republic has the right to enjoy fundamental human rights and to enjoy the benefits accruing from the fulfillment by every person of this duty to society, as stipulated under Article 12 to 28 of this Part of this Chapter of the Constitution” 
This shows how government of Tanzania observe the sense of democracy in bureaucracy.in this point of view, Tanzania practice representative bureaucracy in the sense of representation.

In addition, representative bureaucracy results to the well balanced laws. Firstly before arguing in this point questions arise “who exactly enact law?”, “who are the target of the law enacted”? in response to this questions, the legislature is responsible in enacting laws of the state with the great collaboration and other governmental organs namely executive and judicially, the concept of well balance laws comes in the sensation that “ representative of people are the ones who enact laws”  as the legislature consists of different members and representatives from different areas and social groups so this can lead to the laws that are in the equilibrium point of view, meaning that the laws enacted will be considering all social demographic characteristics. The same applied to Tanzania where the parliament on behalf of the citizen enacts the laws that will govern the state without disregarding any social group. The United Republic of Tanzania  constitution(1977)  provides a power  to the parliament in their legislation procedural as it stated in article 97(1) that,
“Subject to the provisions contained in this Constitution, the Parliament shall exercise its legislative power through the process of debating and passing Bills which eventually shall have to be assented to by the President, and a Bill shall not become law unless it is so passed by the National Assembly and assented to by the President in accordance with the provisions of this Article.”

However, representative bureaucracy legitimate the government, the government drives its confidence from people, this means that its people who constitute the power of the government (though not in all case) the relationship between people and their government exist in term of social contract where the government should ensure the needs of the people is fulfilled. Always the government that provide what their citizen wants last longer but if it diverge from the contract its legitimacy will be lost ever since people will remove the trust and anything bad can happen that is political instability, coup de tat and many others

Shortcomings of representative bureaucracy

Apart from having benefits in its application, representative bureaucracy has been viewed negatively having numbers of weaknesses towards the population it focuses on.

Firstly, representativeness does not necessarily lead to more responsiveness, inasmuch as similar social backgrounds do not necessarily lead to similar experiences throughout life. (Kim 1994). This scholar teases this kind of bureaucracy that responsiveness cannot be brought though the representation of different social groups with the same demographic characteristics. And there can be different representatives but yet the representation cannot be applied effectively and efficiency for instance the state can conduct the democratic election in electing the representatives, here the question comes “what are the outcomes of the election?” yes the representatives will  be aired out but will they be responsible from what they addressed during their campaign? Most of them forged and the self-interest spirit invade their mind and forgetting their task of representation.

Secondly, representative bureaucracy does not always result from a bureaucracy that happens to be representative of the general population. Actually the state or community have different social groups from which it is very difficult to wage a comprehensiveness of representation. For instance at a national level the legislature compose of common social groups but groups like students, teachers though they may have their organization at a local level and not at national level.

Thirdly, representative bureaucracy can lead to an element of bias in policy development, something the bureaucracy is meant to eliminate. Such bias will go against the fundamental principle of the bureaucracy as a neutral organization, which is to design and apply basic principles in policy development and policy implementation in a neutral manner to all citizens, irrespective of certain specific characteristics (Meier 1993).

Fourthly, it lead to the delay of critical decision making where something urgent had occurred, for instance the state has been attacked by other state, in the representative state there are several procedures to follow instead of declaring directly, for instance in Tanzania there should be the approval of the parliament, foreign affairs minister, minister of finance  then the president, this could take longer procedures to the maximum that the state could be damaged and astonished to the large extent.

Conclusion
Is there a need for Tanzania to have or practise representative bureaucracy?  at the critical point Tanzania without representative model bureaucracy cannot hit the target as far as the citizen needs as concern, though to some extent this model lack responsiveness to the extent that the appointees of his excellence the head of the state work under fear, and this is due to the fact that the government seem to be under one organ which is leviathan, from this sense the representative bureaucracy lose its meaning. As the current bureaucracy apart from being representative but it lack the responsiveness and effectiveness the issue that enrage peoples mind and thinking about how the state runs, people seem to be hopeless, many are jobless and the life cost seem to be difficult. So Tanzania needs representative bureaucracy that will enhance and observe peoples interests and not only the matter of parliamentary demographic consistence, this means that the form of representation needed in Tanzania   is active representation from which minority plus the majority will benefit from the representations, it’s a time when the MPs should hold accountable in accordance to their deeds simply because their power derived from the people then its people who will punish the failure of the representation of a particular geographical area.

References
United Republic of Tanzania Constitution (1977)

Denhardt, R., and L. deLeon (1995) Great thinkers in personnel management, in Jack Rabin, et al. (eds.) Handbook of Public Personal Administration, New York: Marcel Dekker

Kim, P. S. (1994) A theoretical overview of representative bureaucracy: synthesis, International Review of Administrative Sciences,

Kingsley, J. D. (1944) Representative bureaucracy, Antitoch Press: Ohio

Krislov, S. (1974) Representative bureaucracy; Prentice Hall: Englewood Cliffs, New Jersey

Mansbridge, J. (2003) Rethinking representation, American Political Science Review,

Mosher, F. C. (1982) Democracy and the public service , 2nd ed., New York: OUP

Meier, K. J. (1993) “Representative bureaucracy: A theoretical and empirical exposition,” in James Perry, ed., Research in Public Administration, Greenwich CT: JAI Press

Naff, K. C. (2011) Representative bureaucracy, in Evan M. Berman and Jack Rabin (eds.) Encyclopaedia of Public Administration and Public Policy , 2nd edition, New York: Taylor & Francis,

Selden, S. C.  (1997)  the promise of representative bureaucracy, Armonk, NY: M.E. Sharpe

KATEMBO

Judiciary in Tanzania

JUDICIARY IN TANZANIA

:1 BACKGROUND OF THE JUDICIARY

The Constitution of the United Republic of Tanzania, 1977 vests the authority and responsibility to administer justice in the Judiciary of Tanzania. The Judiciary has its foundation on Article 107A (1) and 107B of the Constitution and states clearly about the Independence of the Judiciary in the United Republic of Tanzania. Now the strategic plan for Judicial Independence is focused in both form and content.

1:2 Mandate of Judiciary

The mandate of Judiciary to perform its functions is obtained from the Constitution of the United Republic of Tanzania vide article 107 and its primary function is to dispense justice with equity and compassion according to laws of Tanzania.

2:1 Roles and Functions

With above mandate the roles and functions of the Judiciary include:

v Interpreting diverse Laws and execution administrative decisions.

v Hearing and deciding cases filed before the courts of law.

v Educating members of the public of their rights obligations under the laws of the Tanzania.

v Facilitating maintenance of peace and order through good governance and the rule of law.

2:2 Current Vision and Mission

2:3:1 VISION: Timely and Accessible Justice for All.

2:4:2 MISSION: To carry out the administration of Justice to the general public in dealing with disposal of cases effectively and efficiently.

2:3 GENERAL PERFORMANCE REVIEW.

Since the launching of the legal sector reform programme some years ago, the Judiciary has made notable interventions in enhancing its functions in the administration of justice and the Rule of Law. Bellow is major findings, achievements.

3:1 Major Findings

(a) A achievements

Introduction of ADR( Alternative Dispute Resolution)A functioning case calendar for honorable Judges and MagistratesEstablishment of effective case flow management committee both in National level and lower courts.The adoption of client service charterEnhancement of Supervisory mechanism.Strengthening ethical committee of ethical committee.The establishment of specialized High Court divisions of Commercial, Land and Labor disputesEstablishment of High Court centers.There is notable increase allocation of financial resources from 23% of the actual request in 2002/2003 to 40% in financial 2006/2007-2009/20010. All these measures created a new culture and friendly environment for all Judicial and public in order to enhance their rule of law and good governance. On top of these significant achievements Judiciary is undertaking reforms to review its organizational structure to cope with social and economic development of modern times. Taking to account of these changes some new structure and units had been introduced.

(a) The Judiciary has its Client Service Charter now under revision.

(b) Complaints Handling Mechanism in Judiciary exists in different forms starting with traditional suggestions boxes in every Court which handles many complaints from the public. When these reports are compiled they are filed in special confidential files for immediate actions from the accounting officer in charge. This system exists in every zone and at end all information reaches to Registrar High Court or Registrar Court of Appeal.

The Chief Justice’s office meets with the members of the Public in every Thursday of the week to register complaints and files them for CJ. If the complaint qualifies; an appointment is made for the complainant to see the Chief Justice on Saturday of the same week. Upon listening to the complainant the Chief Justice immediately takes the necessary steps to solve the problem either by talking or to write direct to relevant authority .This procedure has solved a lot of problems which initially seemed chronic. The number of complainants dwindles as days pass. This is an indication that the system works. To enhance monitoring of complaints, IEC unit of the Judiciary is on the way introducing a telephone hotline to register all complaints and direct them to respective departments, units and advice on various ways of solving customer complaints and review the service client charter.

Recently, with the operations of Web site at Commercial and Labour courts enhanced information exchange with other court centers. The web site for Judiciary of Tanzania is under conctruction. More ever, the IEC unit with collaborations with editorial committee of the Judiciary continues to publish a quarterly Judicial News Letter known as “Haki Bulletin”. The former weekly radio progrmme ‘Ijue Mahakama’ is under progress and will be aired soon as stipulated on IEC action plan.

The Judicial strategic plan is associated closely with existing reforms currently taking place in the Judiciary. The proposed system makes possible for transparency of Judicial operations and division of responsibilities within the Judiciary itself, including the establishment of the Chief Registrar’s office, establishment of Legal Unit, Planning ,Evaluation, Monitoring Division and at last, the Case Management Division. For the first time in recent years the audit report for Judiciary has been improving for example in 2006/2007 the Judiciary got adverse report on financial statements based on outstanding amount of cases involving laundering of public money. In 2007/2008 the Judiciary got qualified opinion.

HIV/AIDS has been one of the factors hindering development of our Human Resources capital. In recognizing and valuing its precious Human Resources, the Judiciary took deliberate measures to conduct massive awareness seminars to its e employees. To the moment 3026 employees have been reached, 655 have voluntary tested for HIV/AIDS and 59 employees have declared their HIV positive status. These 59 receive financial aid of 100,000/-per month to supplement their diet requirement. Plans are to make sure that, all employees are reached with accurate and timely information about HIV/AIDS

In case of Open Performance Review and Appraisal System (OPRAS) Judiciary was omitted in the project and still uses the confidential reports system of monitoring work performance by its staff.

As regards to customer perceptions on the improvement of service delivery, for last two years the Judiciary has been advancing in the use of IT in service delivery. For example all Judges of the High Court and Court of Appeal have been supplied with modern laptops and this in turn helps to reduce the time taken for delivery of judgments. Not only that, but also the number of computerized offices with access to internet has risen making fast, reliable transfers of information within the Judiciary in general. IT project is underway to connect all regional centers with headquarters on e-communication and possibility of online case system is on progress.

©CHOIJACK™