By Kiranga
I am seriously advocating for a campaign to stipulate more open contracts for all big Tanzania government deals. I have had these sentiments for some time now, but the Dowans fiasco and the almost medieval usury it imposes on the people of Tanzania (Shylock would be envious) is proving to be the last nail in the coffin of any semblance of patience on my part.
Dorosela Ferdinand Bishanga, a Tanzanian political scientist, has a very articulate and concise analysis here. I found the views to resonate in tune with mine. A discussion of how the “Bill of Freedom of Information” – a crucial tool in instituting transparency in government – was butchered and left to rot before seeing the vote of parliament is most disturbing. The study nicely complements this work with anecdotal figures of how Tanzania does not do well in the international rankings of government transparency. I find no reason to go over the same legal discussion as well as the statistical documentation. I could hardly reasonably state the case clearer in those aspects.
Philosophically, from 10,000 feet above at least, openness goes hand in hand with free trade, which we have been pursuing – or at least claim to pursue – for some time now. Like an observant chess player, I can already anticipate several key objections, chiefly based on the concept of “trade secrets”. To be fair this is not an open and shut case. I hardly tackle those. I hope this piece will interest curious minds to contribute more towards the merits of this campaign’s endeavor.
If by definition, the government is the people, then why the secrecy? The question is especially relevant now that we are seeing that the responsible officials cannot be trusted with the responsibility of effectively charting our country’s course and safeguarding it’s interest. A fiasco is a fiasco, but I would rather see a fiasco that was open for all Tanzanians to vet than one swept secretly, or hurriedly signed in some London hotel room under suspicious circumstances.
Going back to the trade secrets point, if only to show my appreciation of this important possible objection, I am forced to observe and acknowledge that I wouldn’t have such a big problem philosophically with a reasonable degree of privacy. An argument can be made that some of these details may actually prove as crucial game-changers – decisive on who succeeds and who doesn’t enough to be the subject of industrial espionage – so there is a legitimate business reason not to bare all. But still, this does not mean complete secrecy, not even half way in-transparency.
A more involving argument is that of protecting the bargaining power of the government of Tanzania itself. This is a troubling double-edged sword. If you promote openness too much, and that openness end up corroding the people’s bargaining power, does that justify not embracing greater openness in order to protect the economic interests of the Tanzanian people? Not to be a one handed economist, on the other hand, how would the people know that this act of supposedly benevolent censorship is not used as a loophole to promote the unnecessary overreach of governmental exclusivity? Niels Bohr, that sometimes under appreciated Danish theoretical physicist contemporary of Einstein used to say “How wonderful that we have met with a paradox. Now we have some hope of making progress.” I hope so too. I sincerely believe there should be a sliver of room for well defined and very limited discretionary provisions that would help address such a paradox. This must be done in a manner that will prove in the interest of Tanzanians without snowballing into promoting even greater governmental exclusivity.
I am usually not easily so sold on the “this will scare investors away” argument that is used anytime the government wants to grant concessions to investors, but to be fair to this issue demands an extraordinary amount of open mindedness. While I want to institute a more open government, I am also sensitive to the business environment, and would not want to create an avoidable investment flight. It is possible to strike the price balance that will minimize genuine investors alarm, and at the same time maximize Tanzanian’s direct involvement in the welfare of their nation. Before I risk sounding like I am advocating for secret contracts, or want to have an Eva Morales moment equivalency in Tanzania, let me make a few points to make my case against our level of secrecy.
Trade secrets are more about formulas, techniques and processes that a company owns outright or has such rights to. Anything that is instituted as part of a contract between a mining company for example, and the government of Tanzania on behalf of it’s people, should not qualify as part of trade secret to be afforded the benefit of privacy for business purposes. This should be a clear clause in all government contracts. Investors are almost certainly good at crying “we will go elsewhere”. But often, especially if the prospects are exceedingly lucrative, this is a business gambit to wield their bargaining power. After all, if the clause is uniform in all contracts, there shouldn’t be any issue of unfairness. There will be a level ground for all investors. All investors will have equal opportunity under openness and mass scrutiny.
It is shocking to note that some of these contracts are completely sealed at cabinet level, and that what should really be a parliamentary vetting task, with the public having complete access to the documents and Hansard is locked inaccessible in the stratosphere of the political landscape. Not open on a “need to know basis”, not open in a public version that omits some information contained in the full version or simply not available to those not directly involved. As if this secrecy was not enough, when explained at all, the rationale is shaped under the most ludicrous of reasons, such as the usual suspects of “national security” and “attracting investors”. Chris Rock, that sometimes insightful American comedian, in a statement that almost carries a sense of gender betrayal, rightly observed “A man is as faithful as his options”. (Some say this increasingly applies to women too nowadays.) The idea of the rule of law is there to guarantee that people follow order, and that the running of societies is not left to the chance benevolence of the people in power. The secrecy in our tendering process is almost like an inherent temptation. A few people could agree to sell an important part of our national infrastructure. Why tempt them with this much secrecy?
The East African reported an IMF study showing that Tanzania has the most rigid Financial sector in East Africa! I appreciate the finer detail, but I did not need an IMF report to conclude that. It is that obvious.
Tanzanian investors – not foreign mind you – couldn’t even participate in the Safaricom IPO due to some Vogon poetry passing for governmental regulations. This runs contrary to the idea of open government and free trade, the ideas carry a natural tendency toward open contracts. If there are some specific concerns, example being capital flight, then let us address these particular issues, not employing “mtego wa panya unasao waliokusudiwa na wasiokusudiwa.”
It has to be noted that the Tanzania government is making some moves. It joined the Extractive Industry Transparency Initiative (This Day 3/11/2010). The EITI aims at enforcing publishing of all revenues and payments made by mining companies. But this does not help in a situation like Dowans, in which shoddy contracts are signed only to be exploited by clever corporate lawyers at the bidding of the so called investors causing an astronomical amount of money to leave the national coffers. Some are of a mind to dispute paying Dowans, but this matter is already ruled in international courts under the International Chamber of Commerce. The International commercial chambers and trade court systems are not necessarily designed to champion the interests of the so called economically backward nations, especially when the pillage is all but certified by a legitimate – but secret – contract. This led the Attorney General to report that Tanzania will have to pay. What irks me, is I don’t even hear a whisper saying whoever is responsible will be disciplined, prompting skeptics to speculate that this is not a case of incompetency, or simple graft, but a grandly orchestrated vault haul.
AG Werema is quoted saying, “I have gone through the verdict and concluded that the tribunal’s decision was fair. It was we Tanzanians who made the decision to unilaterally terminate the Dowans contract, so we must be ready to live with the consequences of our actions.”
We have made the bed, now we must lie in it, basically. This is where my passion for open contracts becomes extremely important. Had the Tanzanian public known the facts about Richmond / Dowans and had an open review been in place we wouldn’t be in this mess. Even allowing for some absolutely necessary concessions to investor’s right to privacy. The fiasco was so obvious any half witted unemployed lawyer, or indeed investigative journalist, could have spotted the troubling clauses and raised them as issues before the final signing, saving the government millions of US $, no small amount for a country whose GDP Per Capita (PPP) is well under $ 1500 even by some liberal estimates.
I understand there will possibly be all kinds of opposition towards completely open contracts. It is not my wish to change the system – at least in this context – abruptly. I would be fine with attaining near complete contracts gradually, after all information theory has it that it is in the nature of information to want to be free. In the meantime, we must pressure the government to drastically reduce bureaucratic secrecy and institute a people based vetting system, accessible to all and not violating our goals of a freer trade environment. The powers that be may very well prove responsive to repeated principled demands for openness which will eventually increase our collective level of vigilance.
To avoid the now inevitable repetition of a Richmond/ Dowans, we must gradually – fast at first and then as the matters get more intricate, slower – increase our degree of openness. It is a simple enough concept that I do not expect much in terms of fundamental opposition, unless from interested parties aiming to capitalize on this secrecy. This approach will be balanced in heeding the core of investors concerns, while at the same time instituting a more organic and therefore efficient review system. Of course every solution is bound to have it’s own challenges. The wider the set of reviewers, the longer the review process could take, even as the process promises better calibration for a more robust path to risk aversion. Gradually I envision using the experience to develop self correcting matrices, ignoring the unavoidable purely political rhetoric over sound economic input.
Let’s work together to contain any governmental control of exclusivity to an absolutely necessary minimum.
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Kiranga is a regular contributor at Vijana FM
What is your opinion on this transparency campaign?
Thank you, Kiranga. Your essay reminds me of Julian Assange; it seems what you are arguing for is based on similar principles. Do you fear, however, that perhaps it is possible to be “too open”?
That is, where do we draw the line to say OK this information is good for public (manifestos, reports, observations, etc.), and No, this information is best kept away from public eyes (eg: meeting minutes, lunch conversations, e-mails, etc.)?
ak,
While I am flattered to even remind you of Assange, any sensible person not flirting with anarchy will easily recognize the dangers of extremism. This is why, if you have noticed, I am going out of my way to convey my appreciation of the case for justified exclusivity. I had half a mind to write the piece in a dialogue format, like Galileo’s “The Dialogues…” because of all the devil advocacy presented.
You pose an interesting question. I am for baring most information, especially that which relates to the interests of the Tanzanian people directly. I talked about excusing what could be used by business competition in industrial espionage cases. But dealing specifically with contracts, government contracts at that, you don’t have too much of these. The government of Tanzania is not going to ask Coca Cola for it’s beverages formula in a contract to build a Coca Cola plant.
So I can easily see a clause stating that if an investor can make a case that certain information could be used in cases of industrial espionage by the competition, or would inherently entail exposing the investor to unfair disadvantage, then the government could concede to reduct that particular information. With a strict adherence to freedom of information and not reducting too much (CIA archives anyone ?)
From my limited experience with government contracts, this should not constitute more than roughly 3% of the contract document. Anything more than that begins to look like those declassified CIA documents. And even that 3% should not be automatic, and should be justified.
Otherwise everything should be out there, discussed in Bunge, searchable in Hansard PDFs, and even on a common government portal for this type of documents.
This is what I would like to see.
Well, one of the very establishing principles of government is the need for government to remain in power. So, governments all over the world have created systems and mechanism that ensure they remain in power for as long as the constitutional limits provide or long enough until the next government get into power.
In order for governments to remain in power for long enough then there is a need for secrecy. Governments don’t trust its people and even worse for corrupt governments. So there is a direct relationship between a corrupt governments and the level of secrecy in that government – the more the corrupt government the more the level of secrecy.
This tells us that we can tell how corrupt our government by looking at the level of transparency!
Like the author, I’m of the opinion that government contracts shouldn”t be shrouded in secrecy, at least not from the very people who put the government in place and whose interests the government is supposed to be safeguarding.
The so often raised “national security” banner is by and large as outdated as an abacus in this age of laptops and smartphones…. FWIW anyone can find anything they need to know about Tanzania right now, one just needs to know where to look…the “leaked” Buzwagi contract and others of the ilk which were supposedly “classified come to mind, but I digress.
I believe we can demand transparency from all levels of government, the first step being, holding our elected officials to a level of accountability with real corresponding consequences, no ifs, ands or buts, unlike the pathetic excuses masquerading as “accountability” that we have seen time and time again (the EPA saga comes to mind). I mean, it has reached a point where everyone knows “changa la macho” hilo, and sadly, we go along with it.
We need to educate our people on their rights and responsibilities as citizens, that should perhaps be the very first practical step even before holding our elected officials accountable. That way the populace knows what to expect of their leaders and the leaders will execute their offices with a sense of responsibility knowing what they’ve signed up for.
We also need to uphold the rule of law, our own magna carta if we don’t already have one, right now it sure looks like we don’t. No one regardless of their position should be above the law.This would then mean that the judiciary should be free to execute its duties and obligation without fear or favor.
In the case of Tanzania the secrecy sorrounding government contracts is really no secret at all, like Mwanakijiji so aptly elucidated, it’s CORRUPTION plain and simple.
In addition to this, there also need to be an online portal where the govt presents documents showing all purchases made to: local govts, to govt schools, ministries, as well as development assistance funds we receive. Having such documents online, in one portal, would make tax-payers to effectively track their balance of payments.
Thinking about the majority with no access to internet or electricity, this is where media houses and civic organizations come in and complement the information vacuum. Radio & TV Public service announcements, discussions of prospective contracts, and central govt payments to local authorities could be broadcasted and scrutinized in detail to inform citizens on what is at stake.
Kabla ya hiyo mikataba kufikishwa bungeni for vetting kuna haja ya wananchi kuchagua wabunge wenye ‘uelewa’ la si hivyo tutakuwa tunawaongezea posho ya vikao tu au kuwarundikia maamuzi ya kila aina wale wachache wenye uelewa wa kutosha.
* kuna wabunge wasiojua kusoma Kiingereza cha kawaida licha cha lugha ya mkataba
* kuna wabunge ambao hawana uwezo wa kutafakari impact ya mikataba husika.
@Kiranga This is definately an interesting idea. I did a rough spot check, and look what I found (example of the UK). Usually we would see these in the Newspaper in TZ, no? Under the Government Tenders section, or similar sections. It seems you are simply asking for the next logical step – digital archives.
wanaharakati wenyewe ndio waliipinga huo muswada wa habari!