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Magufuli: No mercy for economic saboteurs

FIVE major decisions made by President John Magufuli, as his administration clocks three years, have brought positive impact, not only on the legal sector and administration of justice, but also on the protection of the country’s natural resources.

After taking the country’s highest office, though he immediately began to impose measures to cut government spending and fight corruption, Dr Magufuli demonstrated that his administration would adhere to the rule of law and enhance the administration of justice.

The Head of State announced a bold decision during his first time to officiate the Law Day, the official opening of Judicial Calendar Year, in February 2016 when he declared that he would support the Judiciary, as among the three pillars of the state, to ensure it performs its duties effectively and on timely disposal of cases.

President Magufuli directed the Treasury to provide over 12bn/- that has not been issued by the government as part of development budget and promised more offer of 250bn/- being 25 percent of 1tri/- worth of tax evasion related cases that were still pending undetermined before different courts.

His continued support, notably on enhancement of both recurrent and development budgets, has helped this important pillar of state, which is charged with dispensation of justice in the country, to improvements on good working conditions and other essential services.

The Judiciary is currently implementing its Five Year 2015/16 - 2019/20 Strategic Plan to improve, among others, infrastructures by constructing modern buildings countrywide to accommodate court sessions and other offices of magistrates and judicial officers when performing their functions.

Thanks to President Magufuli, good relationship with the Word Bank which is one of the donors supporting the Judiciary during the implementation of the said strategic plan, continues to flourish.

Considering the role of the Judiciary, as the only institution charged with dispensation of justice in the country, as per Article 107A of the Constitution of the United Republic of Tanzania, President Magufuli has not remained behind in equipping such judicial body in terms of enough manpower.

Since he assumed the presidency duties, within the three years he has appointed a total of 19 as members of the bench, both at the High Court and Court of Appeal. Among them 12 are judges of the High Court and the remaining seven are justices of the Court of Appeal.

After his nomination on July 21, 2015, as CCM’s presidential candidate for the 2015 elections, one of his priorities he marketed during the campaign was the fight against corruption. He promised to establish the Economic, Corruption and Organised Crime Court as division of the High Court of Tanzania.

Early 2016, it becomes apparent that President Magufuli was genuinely waging war on corruption in the country. Though in previous administrations primary victims of these anti-corruption operations have been midand low-ranking civil servants, the current fifth phase government has proved to the contrary.

There are a number of senior officials both from the civil service and the private sector who are current in various courts countrywide facing economic sabotage and corruption cases. They may be at either the preliminary stage or the trial stage.

Indeed, in July 2016 the President endorsed the bill to become law for establishment of the High Court’s Division to help address graft problems in the country and speed up and timely dispensation of justice, whereas the rules governing the operation of the court were prepared and published.

Such rules indicate how witnesses, that would be called to testify during the trial, would be protected and provides the procedure on how the cases to be determined by the court would be filed. The Corruption Court started operating in September 2016.

The Court Registrar Charles Magesa, says that since then, a total of economic and corruption cases filed are 323, of which 111 alone were lodged in Dar es Salaam registry. Out of the total cases, he says, 294 have been determined and the rest, that is, 29 cases are still pending at various stages.

Another positive decision President Magufuli has made towards improvements in the legal sector is the restructuring of the office of the Attorney General (AG). When inaugurating the 2017 Law Day, the President revealed a power tussle between the AG and that of the Director of Public Prosecutions (DPP).

The President noted that such ‘fighting’ had been negatively impacting on justice delivery. He directed the Ministry of Legal and Constitutional Affairs, under which the two offices work with, to immediately end the dispute. It is where a move was made for the president to issue an Instrument in February 2018.

On February 13, 2018, the government published the Office of the Attorney General (Re-structure) Order, 2018 (Order). Such Order was published in Government Notice (GN) No. 48 of 2018. He exercised such powers conferred upon him under Article 36 (1) of the Constitution of the United Republic of Tanzania, vesting in the President Powers to establish and disestablish such offices in the Services of the Government of the United Republic.

According to the Order in question, the President also established the Office of the Solicitor-General within the AG’s Office organisation structure. It is in parallel with the Office of the National Prosecutions Services, commonly known as the Director of Public Prosecutions (DPP).

The Office of the Solicitor- General is charged with supervision of civil litigation and arbitration proceedings and shall be autonomous from the Office of the Attorney- General. Prior to this Order, all civil and criminal litigations were under direct control of the AG.

Such Order further confers independence to the office of the DPP with mandate over all criminal litigations, while law officers in ministries, independent departments, executive agencies and local government authorities to be law officers and state attorneys under the supervision of the AG.

Following the restructuring, the functions of the office of the AG shall be, among others, provision of legal advisory services, legislative drafting, contracts and treaties and general supervision of Law Officers, State Attorneys and other staff under his command.

The reorganisation was, thus, made to enhance and strengthen capacity to efficiently discharge duties under office of the Attorney General, Director of Public Prosecutions, Solicitor General and Law Officers in ministries, independent government departments, agencies and local government authorities.

Though the reorganisation process appears to usurp powers of the AG over the DPP, some legal analysts are of the view that the restructuring ensures the government to obtain best legal services ranging from advisory, drafting, litigation and arbitration.

One of legal analysts, the litigation and arbitration department at Breakthrough Attorneys, commends the initiative made by the government towards enacting the Order, believing the envisaged changes are for protection of public interests in ensuring that litigation risks are well managed.

Another milestone decision initiated by President Magufuli’s administration is the coming of the Mining (Local Content) Regulations, 2018, which were included in the Written Laws (Miscellaneous Amendments) Act No. 7 of 2017. These Regulations were enacted following the Amendments of the Mining Act, 2010.

These Regulations have to be followed by contractors in order to ensure that local content rules are adhered to all persons or companies involved in the mining industry. A committee has been established so as to oversee the implementation of these Regulations in the mining industry in Tanzania.

These Regulations clearly state that priority has to be given to qualified Tanzanians in employment and on job training. Further, the Regulations provide that preference has to be given to local service providers and goods which are manufactured locally.

Companies which will be given first preference in the grant of mining licence are indigenous Tanzanian companies. According to the Regulations, legal services have to be provided only by local legal practitioners or local law firms, while the insurance and financial services used by these companies should be local ones only.

The Mining (Local Content) Regulations, 2018 also provide that Tanzanian companies which are indigenous must hold an equity participation of at least 20 percent in mandatory joint venture arrangements for supply of goods and services which will be required.

It is stated further that the indigenous Tanzania companies are required to have at least 5 percent equity participation in a mining company. The failure to comply with the Regulations attracts heavy criminal and administrative sanctions, notably fines up to five million US dollars.

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Author: FAUSTINE KAPAMA

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