21 Mar 2011

Mfuko wa Majimbo - Unconstitutional, or going with the grain?

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. He concludes by saying:
Kwa mtazamo wangu sababu zilitolewa na wanaharakati kupinga uwepo wa mfuko huu ni hafifu sana. Nachelea kusema kuwa inawezekana sababu ya kwenda mahakamani kuna msukumo wa kisiasa. Naheshimu sana mchango wa wanaharakati katika jamii lakini kwa hili naona wamepotoka.  
(From my perspective the reasons given by these activists to challenge the CDCF are very weak. I don't like to say that it's possible that their reason for going to court is politically motivated. I highly respect the contribution of activists to society but on this they've lost their way.)
(It's not entirely clear which political forces he suspects to be behind the CSOs' action, since all the major parties support the CDCF.)

Even one of Tanzania's leading activist organisations - Twaweza, a donor to Daraja - used it's facebook page to ask (and therefore to promote debate) whether the CSOs' action is worthwhile given that the law has already been passed.

On the one hand, the CSOs are claiming, with good justification, that giving MPs an executive role undermines (and contradicts) their core functions of making laws and holding the executive to account. How can they hold the executive to account if they become a key part of that executive?

On the other hand, there's no doubt that MPs' constituents expect them to "bring development" to their constituencies. If they have no funds available to them, how are they going to fulfill that expectation? It's not hard to see why the fund is so popular with MPs.

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.

To conclude, I'll take a lead from former UK MP (and former Minister for Africa) Chris Mullin's inspiring political diaries, Decline and Fall, which I finished reading this weekend. In his final speech to parliament before retiring, he gave a powerful reminder of the value of democracy. We're not talking about western political niceties here, but the best system of governance that exists. It may not be working perfectly in Tanzania, but it's surely worth every effort we can put in to build, strengthen and protect it. Policy Forum and their partners in this action therefore surely deserve our support.
I count it a privilege to have been born in a democracy and to have served in this place. The great thing about democracy is that, although harsh things are sometimes said, we are not actually trying to kill each other. Differences are ultimately resolved at the ballot box. One side wins; one side loses and the loser lives to fight another day.

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Update, March 22nd

In response to comments below, the paragraph above on Twaweza has been rephrased to clarify Twaweza's position. Previously this paragraph suggested Twaweza were opposing the CSOs' move rather than simply trying to promote debate.