Constitutional Debate on Constituency Development Funds in Tanzania

Bora Kujenga Daraja (better to build a bridge) discusses the filing by a group of civil society organizations of a lawsuit challenging the constitutionality of new legislation in Tanzania creating Constituency Development Catalyst Funds, or Mfuka wa Majimbo. [h/t to Global Integrity  on Twitter]

Here is an introduction to the Daraja organization that sponsors this blog from their website:

Daraja is a new organisation that aims to make positive changes to life in rural Tanzania by bringing people and government closer together. Our name reflects our approach – Daraja comes from the Swahili word for bridge.

In rural Tanzania, local government has a responsibility to listen to the community and to deliver public services that meet local needs. We want to make sure local government fills that role. We want to make the system work.

The argument in the lawsuit is that the legislation violates the Tanzanian constitution by inappropriately crossing the separation of powers by giving legislators executive authority, rather than legislative oversight, over these funds:

A few days ago, a group of seven civil society organisations, including Policy Forum and the Legal and Human Rights Centre (LHRC) filed a case with the High Court of Tanzania, arguing that the act establishing the Constituency Development Catalyst Fund, or Mfuka wa Majimbo, is unconstitutional. In doing so, they are following the lead of other organisations raising challenges to similar constituency-based development funds in other countries.

But this move is far from being universally popular. MPs from all major parties supported the CDCF bill. One MP – Dr Faustine from Kinondoni – used his personal blog to criticise the CSOs’ case, arguing that the CDCF has been a very effective way of quickly solving problems in his constituency. . . .

And this view can perhaps claim some academic support from a surprising source: the DFID-funded African Power and Politics Programme (APPP), who have been looking into the idea that governance reforms should build on what exists and should be rooted in their socio-cultural context. Perhaps it’s better to give MPs a means of fulfilling constituents’ expectations and to find ways of ensuring it’s well managed, accountable and more than just a slush fund, rather than to insist on western governance niceties in a very different context. “Going with the grain” is the slogan of this approach.

I have a lot of sympathy for going with the grain. But surely it applies more to governance reforms at the administrative level – focussing on things like budgeting and financial management systems – than to such a fundamental distinction as that between the executive and the legislature. After all, the constitution is supposed to prevent misuse of power by the government and MPs, which is exactly what these CSOs are trying to use it for.

And let’s not forget, MPs are hardly powerless to “bring development” to their constituencies. They have the most influential seat on the council, which sets the budget for local development projects. And if that system is too slow and bureaucratic for them to use in response to local demands, MPs are better placed than almost anyone else to make the system work better, since they also have a roll in setting the national budget and national laws and policies.

For civil society there’s also a rigourous debate about tactics going on here – also a question of following formal processes or going with the grain. Launch a legal challenge to bring the law down, or focus on monitoring how the CDCF works in practice. In Kenya, for example, such monitoring has uncovered widespread abuses and I hear this has led to some MPs concluding that this type of fund is more trouble than it’s worth. It doesn’t have to either/or, of course; it could be both legal challenge and monitoring, but that takes twice as much effort.

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