1.0 INTRODUCTION
The means
of controlling administration must be exercise in accordance with the rights of
citizens. Generally, in any society there is an institution of the government
charged with the primary function to safeguard citizens against abuse or misuse
of power. Therefore, in this work we are going to examine the historical
development of ombudsman in Tanzania and its effectiveness in controlling
maladministration especially to the developing country like Tanzania.
1.1 THE
MEANING OF OMBUDSMAN.
The word
ombudsman is a Swedish word, which means a person who acts and speaks on behalf
of someone else as an advocate. Under international scope means a special
institution for the protection of the rights of citizens against abuse of
power, error, omission, and neglect from the side of the administration
authorities in many countries of the world[1].
Also ombudsman can mean, an official appointed to
receive, investigate, and report on private citizen’s complaints about the
government.[2]
2.0 THE
HISTORICAL DEVELOPMENT OF OMBUDSMAN IN TANZANIA
The
development of ombudsman in Tanzania was started by establishing a special
institution to deal with allegation of maladministration and to recommend on
the appropriate steps to be taken. That special institution was known as The
Permanent Commission for Enquiry (PCE), which was established on 28th
Jan 1964 by the late president Mwalimu Julius Kambarage Nyerere[3].
During that era Tanganyika was transformed from a multiparty state into a single
party state, under the leading party namely TANU, which had a very strong,
voice in all polluted matters including the way the government run its
activities. After realizing, the danger of having single party in political activities
that it may render the possibility of abuse of powers by administrative
officers, hence the commission was formed which would necessarily inquire or provide
the framework for political, economical, and social activities.
The Permanent Commission for enquiry was established
under chapter VI of Article 67 and 68 of the Interim constitution[4]
provides for the composition, which comprises
Chairman, and two other members who was to be appointed by the president. A person appointed was required to
vacate any office from the ruling of TANU party. Even after the constitution of
the United Republic of Tanzania[5]
came into force, the PCE was one of the creatures of it. It was found under
Article 129[6].
This was the first ombudsman in Tanzania charged with powers to inquire on any
alleged act of maladministration affecting citizens.
The PCE has the following functions as per Article 129[7];
it was empowered to inquire into the conduct of any person in respect of the
exercise, or abuse by him of the functions or authority of the office. The
commission made an enquiry when; the president direct it to make an inquiry,
the commission itself thought it desirable to make an enquiry in respect of any
allegation or complaint made.
Despite the aforementioned functions, PCE had weakness
that includes; its function depended on the president to intervene most
activities of the commission, it was purely advisory body since it could not
enforce its own recommendation, also it failed to control its counterparts
since it was party of executive and lastly it started when the Bill of Rights
was not enshrined in the constitution of the United Republic of Tanzania.
Following those weaknesses, the Commission for Human
Rights and Good Governance (CHRGG), replaced the PCE. This can be referred to
as the second ombudsman in Tanzania.
The Commission for Human Rights and Good Governance
was enshrined in the constitution of the United Republic of Tanzania following
the 13th constitution amendment[8].
Those constitutional changes were enforced with the enactment of the Commission
Act known as Commission for Human Rights and Good Governance Acts[9].Article
129(2)[10]
provides for the composition of CHRGG to include, a chairman, vice – chairman,
also commissions not more than five appointed from amongst persons who have
knowledge, experience and a considerable degree of involvement in matters
relating to Human right law, Government, politics or social affairs.
With regard to functions of the commission as provided
under Article 130 (1)[11]
and section 6(1)[12].
In short such functions includes, to
receive allegation and complaints in the
violation of human rights, to investigate or inquiry into complaints concerning
practices or actions by persons holding office in the service of the
Government, public authorities or other public bodies including private
institutions and private individuals where complainant alleged are of abuse of
power, injustice, unfair treatment of any person, and whether complainant or
not in the exercise of their official activities.
2.1
THE EFFECTIVENESS OF OMBUDSMAN IN
CONTROLING MALADMINISTRATION IN TANZANIA.
Having seen
the historical development of ombudsman in Tanzania, at this juncture let’s
have a look on the effectiveness of ombudsman in controlling maladministration
namely:
It saved the administration from unnecessary bother by
people who due to ignorance or otherwise, where dissatisfied with administrative action for instance in case No 58 of 1966/67
the complainant was knocked by the car which broke his leg and bicycle beyond
repair. He reported to the police and no action was taken. On investigation,
the Commission (PCE) discovered that the car belonged to an ambassador while on
official duty and consequently the police could do nothing because of
Diplomatic immunity. Then the commission informed the complainant about the
position regarding Diplomatic immunity.
Also raises awareness on the public on the functions
and powers vested and how can a citizens enjoy its services, in ensuring the
good administration to the people, the Commission creates awareness to them
about general public functions and powers vested to the agents or offices in
their administrative machinery. Therefore, ombudsman enables people to be aware
on the maladministration
Therefore, the commission succeeds in investigating
some of the complaints of the citizens and recommending on necessary measures
to be undertaken. Through investigation, it enables them to come up with good
conclusion. A good example here is the investigation in the famous Nyamuma
Village Case[13]
where, the commission concluded that there were violations of human rights and
principles of good governance.
Lastly, the commission has resolved the disputes on
its jurisdiction in Zanzibar and now it has opened its offices in that part of
Tanzania. The Commission expands its functions so as to solve dispute within
its jurisdiction, hence succeeds to that effect.
2.2
WEAKNESS OF OMBUDSMAN IN TANZANIA
Though
there are number of succession of the ombudsman in Tanzania through PCE and CHRGG,
herein below are the weakness of ombudsman as follows:
The commission depends on the way the president would
exercise his powers against the operation of the commission since at the
beginning the president has the power for the establishment and appointment of
members within the commissions. For this case now, the president would exercise
his power against their operation.
Reports of the commission are sent to the National
Assembly through the Minister and thus may influence the content, which is to
be tabled before the National Assembly, this implies that the commission has
little powers.
Another weakness is that, the commission remains to be
generally an advisory body since it cannot enforce its own recommendations,
unless it does so through an order of the court.
Then just like its predecessor, the CHRGG also its
privileged with a practice of secrecy and confidentiality on some of its
information and communication which if not carefully used can be abused and remove the whole idea
of having a democratic organ which is transparent in its activities.
Lastly, the restrictions imposed on the commission as
per section 16[14],
waters away its powers to intervene in some of the issues, which might be of
public importance. Therefore, those restrictions within the commissions would
render the infringement of the human rights within the arm of administrative
bodies against the innocent people
3.0 CONCLUSION
By
following the suggestions of the presidential commission a PCE that it is
necessary in Tanzania, not only to ensure that the executive does not trample
on the rights of individuals but also to awaken a National Ethic, that makes people
grow conscious of their rights and to be able to ask for their rights as
citizens do in more civilised countries hence ombudsman plays a great role to
the most of Tanzanians.
4.0 BIBLIOGRAPHY
Statute
The Tanzania Government of: The Constitution of the United Republic of
Tanzania, 1977 as amended in 2005. Government Printers, Dar es Salaam
The Tanzania Government of: The
Interim constitution of 1975, Government Printers, Dar es Salaam
The Tanzania Government of: The Commission for Human Rights and Good
Governance Act not 7 of 2001, Government Printers, Dar es Salaam
The Tanzania Government of: The
Constitutional Amendment of 13th, Act No 3 of 200o, Government
Printers, Dar es Salaam.
Case
Ibrahim Korosso and 135 others v. Thomas Ole Sabaya
and others case No HUB/S/1030/2001/2002/Mara
Books
Takwan C.K.C; (1998), Administrative law, 4th Ed, Eastern
Book Company, New Delhi.
Oluyede P.O; (2006), Administration Law in East Africa,
Kenya literature Bureace, Nairobi
[13] It is cited
as Ibrahim Korosso and 135 others v. Thomas Ole Sabaya and others, case No
HUB/S/1030/2001/2002/Mara.
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