The Oil And Gas Revenues Management Act Review

The Oil and Gas Revenue Management Act, No. 22 of 2015 came into life on the 4^th of August 2015 after it was successful assented by the then President Dr. Jakaya M. Kikwete. The Act, generally aims at the establishment and management of Oil and Gas Fund to provide for the framework for fiscal rules and management of oil and gas Revenues.

The Act is a positive step towards Economic Development for all Tanzanians as it sets a foundation stone towards Oil and Gas Revenue Management for the betterment of all.

The Act established several measures and steps for the successful reaching of its objectives and this includes;

§  The BOT being the key player in the establishment of accounts and the management of revenue funds as per Section 5 of the Act;

§  The TRA and the TPDC (The state owned  National Oil Company) are set as collectors of Oil and Gas revenues due to the Government by virtual of the section 6 of the Act; and

§  Establishment of Oil and Gas Fund which shall consist of the Revenue Holding Account and the Revenue Saving Account as per section 8 of the Act.

THE REVIEW

 The Act being a stepping stone towards the establishment of an optimum system of oil and gas revenue management and an effective legal framework for the same has received positive critics as a result of non involvement of stakeholders including the regulated personnel such as Foreign Consortium who as directly involved for investment purpose in the Oil and Gas sector leave alone the General Public whom in one way or the other are affected by Oil and Gas key players.

Some of the positive criticisms are as following;

 First and far most important is on the Oil and Gas Fund itself. Section 8 (3) (a) of the Act provides that one of the Objectives of the Fund is to ensure that the financing of investment in oil and gas as guaranteed, this can be interpreted as to mean that Investment in oil and gas may be eligible to loans and credit facility so as to ensure the positive growth and development on the oil and gas sector.

In Contrary, Section 11 (a) of the same Act restricts (prohibits) monies deposited in the Fund being used for providing credit to the Government, Public enterprises and private sector entities. This contradicts with the general role and objective of the Fund itself.

The Second area challenged is on the Sources of the Fund itself. Section 9 of the Act did not provide for all sources of the Oil and Gas Fund and left other sources of Fund including Capital Gain Tax and Penalties for delays and non compliances of the Act or its regulations imposed under it[1].

Another area that has faced criticisms though most legal scholars fear to discuss and open their views against it is on the Establishment of a Portfolio Investment Advisory Board under section 12 of the Act.

The Board is comprised of 5 members whom among other requirements are to possess knowledge, Skills and Experiences in the fields of Financial Investment, portfolio management and investment law.

Unfortunately as many would have expected, the entire Board Members are appointed by one Person, “The President”. This  is not only dangerous on question of accountability of the Board but Truth be told this prevents not only the independence of the Board but also threatens the legality and accuracy of its decisions, including but not limited to its role and function as per section 13 of the Act.

In additional to that, According to the Fiscal Rules as stipulated on section 17 of the Act, specifically, section 17 (c)  ( i ) (bb)  provided that any amount in Revenue Holding Account which is in excess of 3% of the GDP is automatically transferred to the Revenue Saving Account. As an ideal the provision is correctly set but in practical sense 3% of the GDP cannot be met now or any future time.

According to the World Bank data base, Tanzania has experienced a 7% GDP per annum on 2016 alone contrary to a 6.5% GDP per annum on previous decade[2]. It should be know that the GDP of any country is constantly changing and is not at a fixed rate.

The legal position taken above defeats the overall objective of fiscal rules objecting the saving for future use as provided on section 16 (2) (d) of the Act.

SUGGESTIONS

In order for the Oil and Gas Fund to be effective and meet the expected objectives, there is a need to expand the sources of the Fund by widening the revenue base. Some of the key areas which were not included as sources of revenue for the fund are fees paid in respected on licences for production and conduct of Oil and Gas Business.

As provided on EWURA’s 9^th Annual Report for the year ended 30^th June, 2015 and published on January 2016, Income from levy and Licences alone has increased from TZS. 30 Billion In 2014 to TZS. 34 Billion In 2015 which is an increase of almost 15% in comparison.[3]

The increment above is a result of increase in investment in Oil and Gas sector and thus should be included as one of the Sources of the Fund.

Further to that, there is a need to increase The Natural Gas Infrastructures so as to attract more investments and increase the Natural Gas markets this is evidenced on the EWURA’s 9^th Annual Report which provided that, as of June, 30^th 2015 on which the Ministry of Energy and Minerals confirmed the quantity of the discovered gas (gas in place) amounting to 55.08 Trillion Standard Cubic Feet[4]  

However, with more than enough gas in place there is still an infrastructure challenge learning the fact that, all Natural Gas infrastructures ends at Dar es salaam and therefore more investments are required to extend the Pipelines to Tanga, Morogoro and other regions within a reasonable timeframe.

This measure has been adopted by our neighbours Mozambique and has been very successful under the “Virtual Pipeline Project” whereby compressed Natural Gas (CNG) could be transported consistently to different Municipalities to pave way for new markets, thus automatically increasing the revenue base.

Prepared by;

Oscar Oswald M, LL.B (Hons)

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[1] www.allafrica.com accessed on the 21^st November 2016 at 10:50 am

[2] www.worldbank.org accessed on 21^st November 2016 at 10:30 am

[3] www.ewura.go.tz accessed on 21^st November 2016 at 10:00 am

[4] Page 36 of EWURA’s 9^th Annual Report for the Year Ended 30^th June 2015 (Published on January 2016)

A Practical Guide to Corporate Compliance

To a Lay person the obtaining of Company’s Certificate of Incorporation seems to be the last step before the final take off of the Company’s Business. Corporate Lawyers know this being untrue and in most cases their deeper involvement on Company’s affairs seems like an act to squeeze more cash from their Clients.

This Article aims at a practical approach after the incorporation of the Company on which most cases is the duty of the Company Secretary to ensure the Company complies with all requirements before commencing the day to day business of the Company.

The Following are mandatory requirements that every Company Secretary appointed at the very first beginning prior the incorporation of the Company needs to be familiar with when taking the position;

1^st Step: Company’s Taxpayer’s Identification Number (TIN)

The Income Tax Act provides two categories of TIN, one is TIN for Individuals which is subdivided into two groups, one being Individual TIN for Licences Purpose (Driving Licence) and the Other is Individual TIN for Business Purpose (Sole Proprietorship Business Undertakings), on the other hand, the second category is TIN for Corporate entities.

Our focus here is mainly on “Corporate TIN” as the title suggests. Though there are no direct fees involved in obtaining the same (No Fees), indirect costs are inevitable at this point. The normal procedure at the TRA is that one fills in Form ITX100.01.B available at the TRA official website www.tra.go.tz or at their many branch offices National wide.

The Form is to detail all information of the newly incorporated Company including its physical address that is, its actual business premises. Information regarding its Directors and the actual date/expected date for the commencement of the Company’s business must be provided as well.

It should be noted that all Directors of the Company regardless the number must fill as well specific forms detailing their particulars and other relevant information for the issuance of the Company’s TIN.

After the undertaking above, the Company needs to fill in Form ITX202.01.E which is a Statement of Estimate for the Company on its expected yearly/annual income. The mainly purpose of the annual estimate is one thing only, deriving the Corporate tax expected to be met by the Company on its Fiscal year.

At the moment, Corporate Tax is at 30% of the total Company’s Income and 25% for a company that is already incorporated and has been listed at the Dar es Salaam Stock exchange.

After the filling in and submission of the same, an estimated corporate tax is derived thereinafter and the amount derived after assessment by a Tax officer must be paid in quarterly instalments, that are, 31^st of March, 30^th June, 30^th September and 31^st December of the Company’s Business year (It should be noted that, In cases whereby the Company fails to meet the estimated target or exceeds the estimated sum, the Company shall fill amended Estimate relevant forms and account for the amount not met/exceeded the estimated amount on the following accounting/Business year).

After the successful payment of a quarterly estimated corporate tax, it is the responsibility of the Company Secretary to submit all relevant documents prior the issuance of the Company’s TIN which documents includes but not limited to;

§  Company’s Memorandum and Articles of Association;

§  Lease Agreement regarding the Company’s place of business or any other proof of ownership of Business Premises;

§  A Letter from the Local Government recognizing the place of Business of the Company;

§  Directors photographs and Passport or other form of Identification; and

§  Company’s Certificate of Incorporation.

Lastly but not least, is a Tax Clearance Certificate which is issued only to entities that have paid for and complied with all requirements, including payment of Withholding Tax and Stamp Duty in respect of the Company’s Lease Agreement. Withholding Tax is currently at 10% while Stamp Duty is at 1%.

Therefore, for instance, Lease Agreement purporting a rent payment of TZS 100, 000/- per month equals to TZS 1,200,000/- annually, in that regard, 10% of the annual rent being Tax Withheld equals TZS 120,000/- and when we derive an additional 1% from the 10% we find the stamp duty to be paid at TZS 12,000/-

The Bottom line is, in order to obtain corporate TIN and Tax Clearance Certificate one has to ensure payments are made in respect of;

§  Quarterly estimated Corporate Income Tax; and

§  Withholding Tax and Stamp Duty in respect of Lease Agreement in relation to Company’s Business Premises.

2^nd Step: Obtaining Business Licence

All Steps flow down on a hierarchy on which a present step (Process) acts as a stepping stone of the next. In that order, obtaining a Business Licence one must first obtain Company’s TIN and Tax Clearance Certificate.

In light of the above, the following are mandatory documents when applying for a Business Licence;

§  Company’s Memorandum and Articles of Association;

§  Company’s TIN Certificate;

§  Company’s Tax Clearance Certificate;

§  Lease Agreement regarding the Company’s place of business or any other proof of ownership of Business Premises;

§  A Letter from the Local Government recognizing the place of Business of the Company on that particular area;

§  Directors photographs and Passport or other form of Identification; and

§  Company’s Certificate of Incorporation.

Upon Submission of the Business Licence Application Forms together with all accompanying documents and upon payment of relevant fees for the same depending on the Business Licence Class applied for and depending on the issuing authority (i.e. Some Licences are issued at the District’s Municipal Councils while others are issued by the Ministry of Industries and Trade) one obtains a Business Licence.

A point of Note, TIN applications as well as Business applications are done at Regional Level on a Particular district on which the Company conducts its Business. For Instance, A Company with Business Premises in Kinondoni District must apply for TIN at a TRA Branch within Kinondoni Municipality, same as Business Licence at the Kinondoni Municipal Council unless the Business Licence applied for is issued only by the Ministry.

3^rd Step: Opening of Company’s Bank Account.

In today’s World, having a bank account is not only inevitable but it is a reality that a Company cannot survive without it. The Company Bank Account will enable all transactions connected to the Company’s Business to go smoothly and it will enable the Company to discharge its obligations towards its employees and staffs (For Instance, Salary Payments).

In that sense, having a Bank account is not only crucial in the Corporate World but is an essential requisite for running the Company’s day to day Business affairs.

In order to open the Company’s Bank Account the following are its requirements though they may vary depending on a Bank (Financial Institution) involved, nevertheless these are the basics;

§  Company’s Certificate of Incorporation;

§  Company’s TIN;

§  Tax Clearance Certificate;

§  Business Licence(s) (If the Company does more than one Business/General Commercial Company);

§  An Introduction Letter with details of the Signatories  of the Bank Account; and

§  Directors’ ID and Photographs.

4^th Step: Employment and Labour Relation Documents (Employment Contracts)

Every Employer must formulate employment Contracts, this will guide its relation with its employees as well as other Labour Statutorily Compliances. As one of the Final steps, Employment Contracts are to be prepared in compliance with the Employment and Labour Relation Laws of Tanzania.

In additional to that, The Company as an Employer must formulate its Employment Policies and HIV/AIDs policy which must be registered at the Labour Commission leave alone other Employment requirements which are mandatory as per the Law (i.e. Social Security Funds, for example the NSSF and the like)

5^th Step: Doing the Company’s Business

After the successful completion of all steps above, the company can now conduct its business as permitted by its Memorandum and Articles of Association.

This marks the end of Company’s Secretary to do List after the successful incorporation of the Company. However other responsibilities stipulated on the Company’s Memorandum and Articles of Association should not be forgotten.

Amongst other duties of the Company Secretary is the filing of Company’s Annual Returns (Form No 128), Renewing the Company’s Business Licences, Attending Company’s Meetings and taking minutes of the same, Filling in and Signing Forms of appointments and termination of individuals for the Company and ensuring payments of all taxes and meeting all legal compliances and any other are other duties/responsibilities of a Company Secretary.

 

Prepared by:

Oscar Oswald M.

 

"BABY GAMMY" IN KENYA

About a week ago, I saw a news piece on the BBC website about an Australian couple who were allegedly accused of leaving behind a surrogate baby called Gammy with the surrogate mother sadly because Gammy was diagnosed with down-syndrome. This triggered a thought process in my head and I decided to dig deeper in order to see the relationship between the law and surrogacy in Kenya.

Quite astonishing is the fact that the business of surrogacy is booming in Kenya to the point of potential surrogate mothers advertising on websites such as 'www.surrogatefinder.com' and the profits are being eaten by many fertility Clinics in Kenya this is particularly due to the fact that couples who have difficulty in getting children chose to take this path rather than the conventional methods such as adoption particularly due to the fact that the Children Act prescribes a lot of procedures before the adoption process is completed. What remains are the other methods of conceiving which have been advanced by science and medicine such as test-tube babies and indeed surrogacy although which attracts many ethical issues; but what is Surrogacy? ‘Surrogacy’ is where a woman becomes pregnant with the intention of handing over the child to someone else after giving birth. Generally, she carries the baby for a couple or parent who cannot conceive a child themselves - they are known as "intended parents".

There are two forms of surrogacy. In traditional surrogacy, the surrogate mother's egg is used, making her the genetic mother. In gestational surrogacy, the egg is provided by the intended mother or a donor. The egg is fertilised through in vitro fertilisation (IVF) and then placed inside the surrogate mother.

In the absence of clear regulation, the practice of surrogacy in Kenya is growing as an unsupervised industry with no law to fall back on if anything goes wrong during the treatment.

Surrogacy indeed raises many questions such as; Does the surrogate mother have any rights? What about the commissioning couple, the donors and the health facility that carries out the procedure? What about the rights of the unborn child, and its legal status? And what happens in an instance where a child born through surrogacy is afflicted with physical abnormalities? Is the commissioning couple obligated to take the child - what if they refuse to? What if twins are born and the contract only provides for one child? Does the surrogate hand over one child - since the contract specifies only one - and keep the second? Does either the parent donating the embryo or gamete gain parental responsibility as described under the Matrimonial Causes Act? what happens when a married woman agrees to be a surrogate and undergoes treatment without the husbands consent and the injustice that will be caused under the evidence Act in section 118 which presumes the husband to be the legitimate father of the child during a valid marriage and extends up to 180 days even after divorce unless the husband can prove that there was no sexual intimacy between them and thus conferring upon him parental responsibility.

So many questions and yet the law is still trying to play catch up with this issue which is facing our society today. What is important to note is the fact that the courts will ensure the interests of the Child are first upheld

Surrogacy arrangements are categorized as either commercial or altruistic. In commercial surrogacy, the surrogate is paid a fee plus any expenses incurred in her pregnancy. In altruistic surrogacy, only the expenses incurred, are paid, but the surrogate is not paid at all. In Jurisdictions, such as the United Kingdom, such agreements are said to be unenforceable by or against any of the persons making it. Meaning that, even though surrogacy is in fact legal, if a dispute were to arise out of the arrangement, the commissioning couple cannot sue the surrogate mother if she refuses to hand over the baby, and nor can she (the surrogate) sue the commissioning couple, if she does not receive any of the agreed payments, or if they refuse to take the baby.

The question that comes to mind is what happens if the surrogate mother refuses to hand over the baby to the intended parents? Do the parents have a right to enforce the surrogacy contract under law? In the Australian Case - Re Evelyn (1998) F.L.C 92-807, the Court recognized that it was to the benefit of the child to have knowledge of and contact with all parties to the surrogacy arrangement.

The brief facts of the case were that ‘Evelyn’ was born as a result of a surrogacy arrangement between two couples who had been close friends for many years. The arrangement was described as ‘entirely altruistically motivated’ and had been initiated by the woman who gestated the child and who was also biologically related to her. It was originally intended that close contact would be maintained between the two families, but frictions developed because the woman responsible for gestation became frustrated by what was perceived as inadequate communication. She was also struggling with her decision to relinquish the child. It was her decision to seek to have Evelyn returned to her.

The commissioning couple refused to give up Evelyn and a dispute over residence arose. At the time of the trial Evelyn was one-year-old and had been mainly residing with the commissioning couple. The Court decided that the child should be handed over to the gestational surrogate mother and her husband with visitation rights awarded to the commissioning couple. One may not agree with the finding of the court, but , is there not some profound wisdom in this decision which recognizes the complexity of the issues involved which might impact on the child’s future wellbeing both in the short and long-term?

It would be interesting to see how such a case would be decided in the Kenyan set up. Would reason prevail or half-hearted arguments based on morality carry the day?

Closer to home, South Africa adopts a liberal approach to surrogacy and as per the South Africa Children's Act of 2005 (which came fully into force in 2010) enables commissioning parents and the surrogate to have their agreement validated by the High Court even before fertilization. However, only those living in South Africa can benefit from the law, and the agreement must be altruistic rather than commercial in nature. In addition, the surrogate mother must have had at least one pregnancy and viable delivery, and have at least one living child. The South African statue also outlines the conditions of termination of pregnancy by the surrogate, and in that case, the implications on medical bills and reimbursements.

It remains to be seen how Kenya will be able to develop surrogacy laws while at the same time balancing the public interest and moral and ethical issues. Feminist will argue that criminalisation of commercial surrogacy will be an effort from men to stop women from gaining financial independence. You will even be surprised to find out that in Indonesia, some women are making a career out of surrogacy and are registered in agencies which handle surrogacy making it a big business for Fertility Clinics offering these services as well as Law firms who help in drafting of the surrogacy contract and the handling the registration of the baby. One important question which requires an answer is whether Kenya is ready to accept surrogacy into the society as it has been accepted in other states such as Indonesia and parts of the United States of America. Whatever the case, the pain of not being able to bear children is unbearable to some couples and the legislature should promptly address the issue of surrogacy in order to make it easy for such couples to experience the joy of surrogacy.

Prepared by Alan Kigen, LL.B (Finalist) at the Catholic University of Eastern Africa

Information from other sources have been duly acknowledge,*Adapted mainly from an original article by Derek Ndonye, Published in 2014.

IN THE NEW WORLD ORDER

Inevitably it is, and so shall it be. THE NEW WORLD ORDER has been in place for several decades now. We are all part of it, believe it or not. The uniform laws in place, world political reforms that have been witnessed by many of us, the world financial systems, religious singularity and many more are crucial wheels towards achieving this climax.

We cant deny the optical impacts of this system, we see laws being consolidated, monetary unification and religious singularity. All these have been shaped, with master minds and men of visions. It was only an imagination then, and it seemed utopian to attain but what's more powerful than imagination? even knowledge cannot overpower it, for every reality starts with imagination. Who would have believed a hundred years ago that mankind would walk on the moon, that space tourism would be as touring a national park or a museum? all this great change is by the power of imagination.

What is to be attained is far more greater than globalisation, its far more than internet, its far more than United Nations. We are in the quest for one world government making the world not only as a village but as one family. This is a turning point of mankind's history, having attained a total control of resources, total control of environment which is the crucial vehicle towards global advancement.

Africa is part of this and so every one else. To deny it is fooling oneself its better to face the reality and shape the system to suite our needs. Positives things can be adopted from all parts, from all jurisdictions, from all legal systems. This will shape our weaknesses and enhance our energies seeing things from different angles and so making the right decisions and correct judgements towards one another with fairness, love and equality at the highest level, this is total liberation, total democracy.

What we need as Africa is transformative leaders, leaders who are willing for a transformation, leaders who are determined to the end. For the end is only the beginning, and a new course shall take place, better, stronger and more advanced than the former.

By Oscar O. Mutaitina,

LL.B (Finalist) at Catholic University of Eastern Africa, Nairobi

AFRICAN YOUTH & THE CHANGE

‘Kijana’ as how is pronounced in Kiswahili and used to describe a youth, as many would have grouped a person from teenage to an age before getting married. It is of no doubt that youth have played greater role to a lot of changes that is the product of this era. From scientific innovations, economics to political revolutions you just mention, all of these have been achieved by a greater contribution from the youth wing.

But what or which Change do we refer exactly when addressing the issue of role played by different age groups in our society. “The change my dearest reader is the total transformation of an individual being or so mankind from deep beneath our flesh, from our inner world, the spirit and then conscious”. The change must come within us, in us for we are the skeleton of this system. We are the wheels of this structure. They depend on us in every means, our sweats and tears are what they eat, dress and walk. Youth are the blueprint towards every major development so far as history testifies.

The fathers of Africa who were on the front line fighting the System were not only brave but courageous youth. Courage to speak and to act, Indeed their bloodshed will not be forgotten and will not go in vain for they will always be remembered because history will speak on itself. The turning point of Africa is first marked by an extraordinary African  Leader, teacher and King in history of all times, His Imperial Majesty Haile Selassie I, Emperor of Ethiopia who has played a greater role as the grand architecture of the Africa Union of today. The Emperor have shown a good example of being as courageous as any other being, He addressed the League of Nations in 1936 after the league being established in 1920 after the first world war then He addressed the United Nations in 1963 on many issues regarding the liberation of Africans from the colonial powers. On the issue of making a move towards change I quote Him saying that, “…We must speak out our major issues, courageously, openly and honestly, and in blunt terms of right and wrong…..” A wicked man will swallow his words and speak none for he fears the truth, the Truth that was hidden from us (for further reading concerning the TRUTH, read: The Stolen Legacy by George G.M. James). African youth must be awake we must be in the front line to win the battle, for there is war everywhere War against humanity. There are Political, Economic and Social clashes in all corners of the earth, the greatest question pauses on Africa, where will it be if the scrabble begins, if the European Union collapses, when new world order is enforced on us? Where will African be? What shall we stand for? I beg you today to open your inner eyes, to liberate yourself from mental slavery. We must be different than how we were before. We must be new in the eyes of God and fellow beings as His Majesty said that, ‘What we seek is a new and a different way of life. We search for a way of life in which all men will be treated as responsible human beings, able to participate fully in all matters of life.’

The Change took place in the movements for Africa Liberation which did not come cheaply or as easy as one might picture it, many have been done and many have been lost until this time and this day. The liberation of a African was not only a song sang by His Imperial Majesty but also many others that had even not step their feet in Africa like Malcolm X and Martin Luther King. At a greater extent in the diaspora Black movements where rooted by the most distinguished Marcus Garvey whom have played a vital role in creating Blackman awareness not only in the diaspora but also in Africa for their contribution which finally led freed us from colonial chains.

Extraordinary men like Mandela who has come from a ‘long way to freedom’, men who were optimist until final point, being tortured, humiliated and abused in every means by imprisonment and even assassination like how they did to our brother Patrice Lumumba in the Congo. Another critical question to ask is why did we move on? Why did we succeed to attain the so called Independence which I only termed it as flag independence?

Let me tell you, the sinews of Africa had been awaken far back in the imposition of Colonial rule, our ancestors the fathers of Africa reacted aggressively against the system, for many wars had been fought to remove the system, all the historic wars and events of time we read whether is of Chimurenga war of 1896- 1897, The Shaka Zulu wars, Maji Maji war of 1905- 1907, Mau Mau wars in Kenya and not leaving behind the western African movements to Liberate Africa that led to Ghana’s Independence. All of these had a spirit of African hood and the brotherhood we cherish as our pride, the solidarity to take up arms and fight our common foe.

That warrior spirit and that warrior blood of our forefathers are still in our veins, their courage and bravery is within us all. We can accomplish what they had started, that dream of One Africa, one people and one government. We should not give up the hope we have, for truly anything can be done by us, we only need to do it better for we have a chance they had not, a chance to be educated and acquire knowledge. Our knowledge and history of the past is the key that opens future doors. We should never forget the Long way we came from, where we are and to critically look where we are heading to.

There are two quotes that really moves me when I try to think deeply about them, one is by Mandela who said, “Everything seems impossible until it’s done” and the other is when Patrice Lumumba before he was assassinated he had mention in one of his speeches when he spoke about success he said, “There is no way to success, for success is truly the only way” from these you will swallow and to a sound mind will reasoning awake.

Let’s wake up youths of Africa, let’s be part of the change, Let us be in the front line. Let us rebel towards this system, the system of injustice, discrimination, embezzlement, corruption and all sorts of evil. Let us speak in one voice though a different language, let us speak as Africa and not as a tribe. I personally declare our Victory is near, we will not reward them evil with evil, we will take their arms and return them where they came from for our battle is sided with the God Almighty against them and we know we shall win for we are confident in the Victory of good over evil.

Prepared by: Oscar O. R. Mutaitina

LL.B Student at Catholic University of Eastern Africa, Nairobi.

DEVOLUTION

I’ve thought about even gave it some time to fuse in my mind but I still couldn’t see a better solution to all crisis present in our government. The absolute power that cannot be questioned among few individuals, the terrible extent in corruption, the check and balances in the three pillars of government not leaving behind lack of transparency in the whole governing system are some of the few riddles we cannot solve.

Speaking my mind I see ‘Devolution’ as the only possible and inevitable system to be employed in our blessed country. Devolution which in other term could be describe as the simplification of Government into small manageable  Governments that are in County levels chaired by the senator who is a member of the senate assembly. Devolution in a larger context means the whole breakdown of power into the hands of people themselves, this means bringing the government closer to people. One of the well devolved governments of all times is the structure of the United States of America and currently Kenya empowering the new constitution gave room for a devolved Government made up by forty seven counties.

One of the key advantages of this system is that people could be able to divide and utilize the resources we have. The residents of a resourceful area will be first to receive fruits of their work in preserving the resources. For instance the community around a resourceful like a lake or mountain and valleys should be benefiting by having a given projects to develop the people of that area or using effectively the advantages of the resource either in fishing, agriculture, tourism or any other commercial activity that we’ll add income to the local people of the area thus fostering development. According to the Kenya constitution 2010, cap 11, article 174 there establishes the Objects of Devolution that are:-

•            To promote democratic and accountable exercise of power
•            Fostering National unity by recognizing diversity
•         Giving power of self-governance to people and enhance the participation of the people in the exercise of the powers of state
•   To ensure equitable sharing of national and local resources
•     To facilitate the decentralization of states organs, their functions and services from the capital
•  To promote social and economic development

Counties having given power as governments thus County governments will have power to form laws that are different to other counties as long as they are not inconsistent with the supreme law, The Constitution. This will empower County governments through making better laws and policies that will make one county develop highly that other county depending on the resources availability for I see it unfair a place enriched with minerals, water bodies and every kind of natural resource be the least to develop, even its residents are in deep poverty that cannot be described by a whole written book. In the 2010 Kenya constitution, article 185(4) says that the county assembly may receive and approve plans and policies for:-

• The management and exploitation of the county’s resources and
•  The development and management of its infrastructure and institutions.

 This will restrain some few individuals who are hungry to take what is left for us and what is for the betterment of all the community.

One of the likely defects that one may point out in this system of devolution is in the case of boundaries of the counties. In case of a conflict regarding the boundaries of the counties I do suggest that an independent commission to be formed for that purpose as Article 188(1) of the same says that county’s boundaries matter must only be resolved by an Independent Commission set up for that purpose by the parliament and passed by the national assembly and the senate with not less than two third (2/3) of all members in each house.

I am very optimistic about a greater change, a change that will put Tanzania my blessed Country in the economic map of the World by being one of the developed countries in Africa and the world at large, but all hopes I have will not be achieved if a move will not been made from this day, this moment and this time so as to have a fruitful future

By Oscar O. Mutaitina,
LL.B student at The Catholic University of Eastern Africa

JUDICIARY INDEPENDENCE

The doctrine of separation of power as currently imitated by the three arms structure of the Government was first spoken by early legal scholars like Montesqueiu, John Locke and many others. Like for Instance Montesqueiu pointed that the division of Government into three organs is to separate power and ensuring checks and balance in the organs for every organ has a traditional duty either to make, interpret or enforce the Law. If that so is true which I think you will agree that the Judiciary as an organ and not only an organ but a crucial body of the government needs not to be bounded, needs not to be chained in the absoluteness of oneself.

Like how John Locke in 1609 pointed that power must be limited and must be controlled, meaning also that powers concentrated much on one individual or a mini group is unfit and may harm personal rights and protection under equal Justice. The greatest powers ever granted to the presidency to elect or rather choose Judges and other senior Justices is more than any power ought to be granted to the Executive as an arm of the Government.

The reason for my motion is simply that the key traditional approach of Governmental Structure which we comply with does not allow delegation of such vast powers like ‘the power to elect or remove a Judge from the office’ by the President. In our current Constitution we can clearly observe the vast power given to the Presidency over the Judiciary, Article 109 shows how the president may elect Judges of the High Court in which their number is not less than thirty individuals. Apart from that all members of the Judicial Service Commission are elected by the president as Article 112 s(1), (2)a, b, c, d and e and s(3) highlight that the Commission to be comprised with CJ as a Chairperson, AG, Justice of Appeal, Principle Judge and two members appointed by the president. If a sound minded person will observe this commission one can visibly see that the whole commission is elected by one person, that in first instance is not only dangerous for the exercise of the rule of law but also the appointed members may work in the interest of the Appointer.

From the fact therefore, for a better governing and a proper separation of power among the arms of the Government then a free and nonalignment commission needs to be formed by the civilians themselves employing intellect members from the legal field that are not part of the Judiciary itself but will be independent in making decision and resolving any disputes arising.

A good portrait of this is found in the Kenya Constitution 2010, Article 160(1) says that the judiciary should not be subject to the control or direction of any person or authority rather than the constitution. Also on the Issue of appointment of Chief Justice, the Attorney General and all the Justices must be confirmed by the Judicial Service Commission of Kenya and later on being given life by the National Assembly as Article 166 s(1)a and b clarify. This should also be in the case of removal of the Judges from office which also should be done in conformity with the Judicial Service commission.

Nailing it down a change is ought to be made for even the functions of the Judicial service Commission as expressed in Article 172 of our Constitution cannot be executed efficient since all the members being choose by the president have no sound or rather fully power over decision making as the body itself is not independent in its nature of formation.

By Oscar O. Mutaitina,
LL.B student at the Catholic University of Eastern Africa.