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Tenga, Ringo W. 'The Legal Framework for Regulation of Public Ethics in Tanzania - An Overview' 2010 (Ethics Secretariat, URT)

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Tenga, Ringo W. 'The Legal Framework for Regulation of Public Ethics in Tanzania - An Overview' 2010 (Ethics Secretariat, URT)
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   Page 1 of  69 Law on Public Ethics in Tanzania, Ringo Tenga Ethics Secretariat (URT) FOR PRESENTATION TO THE WORKSHOP FOR MEMBERS OF PARLIAMENTORGANISED BY THE ETHICS SECRETARIATOF THE UNITED REPUBLIC OF TANZANIA27TH APRIL 2010  THE LEGALFRAMEWORK FOR THE REGULATION OFPUBLIC ETHICS IN TANZANIA A REVIEW Dr. R.W. Tenga ,Advocate of the High Court of Tanzania & Senior Lecturer at theSCHOOL OF LAW (Formerly THE FACULTY OF LAW), UNIVERSITY OFDAR ES SALAAM27/04/2010  THE LEGAL FRAMEWORK FOR THE REGULATION OFPUBLIC ETHICS IN TANZANIA:A REVIEW. [By Ringo Tenga 1 ] 0.An Introduction.  This paper is a review of the legal framework for regulation of public ethics in Tanzania. It relies substantively on an earlierpartial consultancy done for the Ethics Secretariat and CIDA of Canada which carried out a review of the LEADERSHIP CODEOF ETHICS ACT, CAP 398 [R.E. 2002] Both sponsors of thatconsultancy felt that the present Leadership Code of Ethics Act isin serious need of review and outlined a number of factors thathave arisen since its enactment, and these factors include:  The expanded mandate of the Ethics Secretariat in2004 to cover not only public leaders but also middlelevel public servants;  The establishment of six Ethics Secretariat Zonal Officescloser to stakeholders in executing Ethics Secretariat functions;   A set of major public sector reform initiatives that haveresulted 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) ; 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 enactment of the Public Sector Regulations in2003 providing for a Code of Conduct for all civilservants;  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 Growthand Reduction of Poverty with good governance as oneof the three clusters of the Strategy;  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 strengtheninggovernance, transparency, accountability, integrity andefficiency and improved public delivery;  Recent regulatory changes, in particular in thetendering and procurement area have been introducedand put into place mechanisms that address certainareas 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 otherlegislation and some initial recommendation for remedies. Indoing so we surveyed the various legislative schemes both within Tanzania and in other jurisdictions and benefited from thecomparative exercise. In the present paper I am requested togive a general overview of regulating the ethical conduct of   public leaders and articulate the various challenges publicauthorities face in doing so. The paper gives first a short historical background to the publicethics in Tanzania; second, it gives an Analysis of the variouslegislative 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 THEPARADOX OF CORRUPTION .  The modern democratic state in all its forms is the currentbedrock of public leadership. The attributes of such leadershipcan only be grasped by understanding the design of the modernstate. From Plato’s Republic , in ancient Greece, it is clear thatpublic leaders are assumed to be people with special leadershipacumen coupled with an unimpeachable character. For Platoleaders are the Guardians of the State and must be welleducated and of high integrity, in short, ‘men of gold’. Platoeven assumed that such people should be celibate in order todevote most of their time to the complexities of the state. Asimilar perception of the qualities of public leadership resonatesthroughout history. In Roman times Cicero committed some of his most memorable writings to the qualities of a good leader. Inhis ‘ De Officiis’ (On Duty) Cicero makes a contrast betweenduty and expedience. He argues a good leader is one imbuedand guided by the moral dimension and not expedience. In themiddle ages in Europe Machiavelli’s ‘ 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 definedthrough the work of 17 th Century enlightenment philosophers inEurope from Bodin, Grotius, Hobbes Locke, Rousseau,Montesquieu, etc., who defined modern sovereignty andgrounded it on the Social Contract. This representativedemocratic model and its structure required a definite form of leadership and accountability to the citizenry and defined whatthe best leader would be. It is Montesquieu who saw the need toregulate leadership through institutional arrangements thatwould “check” and “balance” state organs in such a way thatdemocracy would not degenerate into despotism or dictatorshipof individuals or oligarchs 2 . If leaders were not constrained byrules and institutions they would easily “capture the state”, as itwere, and usurp its ‘ownership’ from the people. Theconsequence of this omnipresent threat led Montesquieu todesign a state system that is both representative and based onthe ‘Separation of Powers’ between the legislature, executiveand judiciary as the basic pillars of state machinery. The‘checks and balances’ that were in-built were the guarantee thata usurper would not hijack the state from its stakeholders - thecitizenry . But Montesquieu understood that any creation of human beingshas a beginning and an end, just like everything else that exists.One of the terminal diseases which was bound to effect hisdesign of the state was the corruption phenomenon. That greed 2   Montesquieu, Baron Charles de THE SPIRIT OF THE LAWS  , SeeBook VIIIentitled ‘Of the Corruption of the Principles of theThree Governments’. Shows how DEMOCRACY, ARISTOCRACY and MONARCHY are destroyed ultimately by corruption.
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