tion. The OGP has worked to try and have the government release civic data to the public.
The Tanzanian Government has made commitments to OGP to improve data disclosure through the creation of a website for the release of governmental information and to en-hance its efforts towards global initiatives.177 Nevertheless, the results of these commit-ments to OGP have not fully materialized as this thesis has demonstrated. On the national, non-governmental level, civil society organizations, like Policy Forum, and media bodies, like MwanaHalisi, work to also positively affect accountability, as this thesis has sought to prove, yet the lack of governmental transparency, overly-restrictive laws, and, at times, governmental and private cooperation, prevents the full capability of these organizations to exact change. Thus, by looking at governmental as well as international and national non-state accountability initiatives, one can see that they are limited in the level of influence and adequate action they are able to perform in the process of ensuring fair and lawful ac-tion in the extractive industries within Tanzania.
8.2 Implications of Governance Imbalance in Tanzania’s Extractive
“Weak”178 in the Resource Governance Index of the Natural Resource Governance Insti-tute.179 Tanzania governance has been ranked so low because of its weak institutional and legal framework settings that result from insufficient reporting mechanisms and a lack of freedom of information law; weak reporting practices due to the non-disclosure of con-tracts, limited information on the mineral licensing process, and not releasing information about EI revenues by the Finance Minister; partial safeguards and quality controls because of the Minister of Energy and Mineral having discretionary power over licensing and con-tract negotiations, and the non-existence of a clear outline of parliamentary responsibilities for oversight; and, finally, a weak enabling environment for governmental effectiveness and the rule of law along with poor rankings for corruption and accountability indicators.180 Even though Tanzania’s record is marginally better than those states ranked as “failing,”
the Index shows that Tanzania’s EI governance is still a great distance from reaching inter-national standards.
Once overly-strict restrictions to the freedom of expression and participation of CSOs and the media are removed as well as improvements in transparency and accountability are increased in Tanzania, it will better follow other countries, like Norway, who are highly ranked in resource governance within the extractive industries. Norway, the host state for the EITI, is ranked the highest for good governance in the Resource Governance Index. It has been successful in its governance process due, in part, to high levels of transparency and an environment of openness due to a freedom of information Act; strong institutional and legal structures that protect societal benefits from EI; strong reporting practices that makes publicly accessible EI financial information and EI specific documentation includ-ing information on licenses, locations, operators, and owners; strict safeguards and quality controls through mandatory audit requirements; and, an enabling environment for account-ability, democracy, and rule of law.181 As part of the enabling environment in Norway, the rights of freedom of expression and political participation are legally protected and strictly
178 This scale goes from “Satisfactory” to “Failing.”
179 Natural Resource Governance Institute, “Resource Governance Index.”
180 Natural Resource Governance Institute, “Tanzania’s Performance on the Resource Governance Index.”
181 Natural Resource Governance Institute, “Norway’s Performance on the Resource Governance Index”
enforced for civil society and the media in Norway, allowing organizations to play a strong role in the governance process.182 Until these same changes are made in Tanzania, the de-velopmental benefits of the extractive industries will continue to be limited for Tanzania and, most especially, its citizens.
9 Conclusion and Recommendations
The Tanzanian extractive industries are a divers and important mechanism for the possible development of the state, yet they are fraught with issues of public and private corruption, detrimental tax laws,183 and weak means of accountability. Though Tanzania has improved, to a certain degree, in regards to financial transparency within EI, the extrac-tive industries are still far from reaching good governance. This diminished lack of govern-ance is due, in part, to freedom of expression-limiting, legislation and structural barriers, which actively restrict civil society and the media from adequately participating in and suf-ficiently holding the Tanzanian government and international corporations accountable within EI.
Though the freedom of expression is fairly progressive in nature within Tanzania’s Constitution, the reality of the right to the freedom of expression is well below internation-al, regioninternation-al, and national legal standards, especially for civil society organizations and the media. Tanzanian legislation—including: the Newspapers Act of 1976, National Security Act of 1970, and Cybercrimes Act of 2015, among others—contradicts and limits both the reach and scope of the freedom of expression under Tanzania’s Constitution as well as un-der international and regional human rights standards. These pieces of legislation allow for the banning of media sources for reasons that fall below necessity and proportionality un-der the law, the disproportionate limitation of information based on subjective interpreta-tions of national security, and the prevention of communication without interference based on perceptions of data being false, deceptive, misleading or inaccurate. An environment of
182 Freedom House, “Norway: Freedom in the World 2015.”
183 As mentioned in section 2 of this thesis.
varying levels of self-censorship and fear exists for civil society and the media as a result from these pieces of draconian legislation.
Structural barriers, along with the above mentioned legislation, actively impede the efforts of civil society and the media from fulfilling their role as ‘watch-dogs’ in EI. These barriers include: limited and disjointed freedom of information legislation, attacks on and intimidation of journalists and human rights defenders, and the use of certificates of urgen-cy within the legislative process. In Tanzania there is not a national Freedom of Infor-mation Act; rather, there are only some examples of industry-specific transparency legisla-tion. Though some legislation for transparency in EI is better than no legislation at all, a lack of consistency on what should be made public, a lack of action by ministers to make documents public, and continued limitations from expression-restricting legislation directly limit the freedom of information for CSOs and the media. Attacks on and intimidations of journalists and human rights defenders working with extractive industry topics have direct-ly impacted capacity to influence EI through arrests, lack of visas being provided, the con-fiscation or theft of data devices, personal attacks, and so forth. Similarly, the continuous use of certificates of urgency within the legislative process for extractive industry bills directly limits the capacity of CSOs and other stakeholders from adequately taking part and expressing their views and recommendations in the legislative process.
These restrictions to expression stand in the way of civil society and the media from gaining the strength necessary to exact high levels of change within EI, and the rest of the country. When a strong civil society and media exist they can help improve the level of freedom in a country, decrease corruption, promote the rule of law, and increase accounta-bility, as mentioned above. Yet, to accomplish this, governmental transparency, free ex-pression, and participatory rights must abound for civil society and the media to have the necessary capabilities and strength to adequately and effectively hold state and non-state bodies accountable within EI and the state as a whole. It is only when Tanzania follows suit with countries, like Norway, who have built the necessary governance mechanisms, includ-ing civil society and media accountability capabilities, to allow for good governance, that governance for Tanzania will be able to rise from weak to good.
In order to help move Tanzania towards the goal of both good and accountable gov-ernance in EI, specific changes must be made within EI and the country as a whole. Five specific policy recommendations are suggested to help lead to this change. These mendations are based upon the major issues presented within this thesis. Thus my recom-mendations for Tanzania, based on this study, are as follows:
1. Revise or remove draconian legislation that overly limits the freedom of ex-pression.
The Newspapers Act of 1976, the National Security Act of 1970, the Cybercrimes Act of 2015, and all other pieces of expression-restricting legislation should be amended, re-moved, or rewritten to make them resemble international human rights standards. Also, the penalties for infractions of these laws must be revised and reduced. This should be done with the intent to strengthen, not weaken, the power of the citizenry to use both speech and the press in impacting EI.
2. Pass a progressive Freedom of Information Act, and follow common practic-es in sharing information and documentation in the EI.
The Freedom of Information Act should encompass the accessibility norms found within General Comment 34 and the Declaration of Principles on Freedom of Expression in Afri-ca. These soft-law standards should lead the content of the Act to only allow limitations in public accessibility that can pass the tests of necessity and proportionality as described within the ICCPR. Under this law, all extractive industry documents should be made acces-sible to the public. This recommendation should also lead to the necessity of interpreting specific, existing extractive industry legislations like Article 125(6) of the Petroleum Act of 2015, based upon international and regional human rights standards, to ensure progressive, not overly restrictive, transparency legislation in the extractive industries.
3. Pass legislation that implement HRCm and ACmHPR standards for the free-dom of expression.
The purpose of this legislation should be to strengthen the existing expression clauses with-in Tanzania’s Constitution. New legislation, based on progressive expression standards, should protect the freedom of press and prevent overly restrictive interpretations of the Constitution.
4. Ensure that communities affected by EI have a say in decisions affecting their lands and livelihoods.
Certificates of Urgency should be prevented, as much as is reasonable, within the legisla-tive process. It is vitally important for the full capability and incorporation of stakeholder input within proposed bills. As these opinions are fully allowed and adequately weighed, policy can better meet the needs of the governed. Also stakeholders should be included within discussions of land rights during EI contract negotiations to ensure free, prior and informed consent. Clarification and an explanation of legal rights should also be presented to those who must be relocated to ensure adequate compensation is provided.
5. EI legislation should be revised to bring greater benefit to Tanzania as a whole.
An implementation of more favorable tax laws on behalf of the state, revision of checks on ministerial powers, provision of fair contractual proceedings, indication of clear parliamen-tary responsibilities for oversight, improvement in reporting practices, and improvement in auditing procedures are necessary for accountability and governance within the state to be increased and provide greater development for Tanzania and its citizenry.
10 References
International, Regional, and National Legal Instruments
Constitution of the United Republic of Tanzania 1977 (as Amended by Act No. 15 of 1984), 1984.
Constitution of the United Republic of Tanzania 1977 (as Last Amended by Act No. 1 of 2005). WIPO Lex No. TZ008, 1977.
Organization of African Unity. African Charter on Human and Peoples’ Rights (ACHPR).
Vol. CAB/LEG/67/3 rev. 5, I.L.M. 58, 1981.
Parliament of the United Republic of Tanzania. The Cybercrimes Act, 2015.
———. The Draft National Energy Policy, 2015.
———. The Mining Act, 1998.
———. The National Natural Gas Policy of Tanzania, 2013.
———. The National Petroleum Policy of Tanzania, 2014.
———. The National Security Act, 1970.
———. The Newspapers Act, 1976.
———. The Non-Governmental Organizations Act, 2002.
———. The Petroleum Act, 2015.
———. The Tanzania Extractive Industries (Transparency and Accountability) Act, 2015.
———. The Tanzanian Penal Code: Chapter 16 of the Laws (Revised): Principle Legisla- tion, 1981.
UN General Assembly. International Covenant on Civil and Political Rights. Vol. 2200A (XXI), 1976.
United Nations. Statute of the International Court of Justice, 1946.
———. Vienna Convention on the Law of Treaties, 1980.
International, Regional, and National Soft-Law Documents
African Commission on Human and Peoples’ Rights. Declaration of Principles on Free-dom of Expression in Africa, 2002.
General Assembly, “Annual General Assembly Report of the Human Rights Committee.”
UN Doc. (A/50/40). United Nations, 1996.
http://www.refworld.org/pdfid/3f4746ae4.pdf.
Human Rights Committee. General Comment No. 34: Article 19, Freedoms of Opinion and
Expression, 2011.
http://www.refworld.org/publisher,HRC,GENERAL,,4ed34b562,0.html.
———. Consideration of Reports Submitted by States Parties Under Article 40 of the Cov-enant, Comments of the Human Rights Committe: United Republic of Tanzania.
United Nations. CCPR/C/79/Add.12, December 28, 1992.
———. Consideration of Reports Submitted by States Parties under Article 40 of the Cov-enant, Concluding Observations of the Human Rights Committee: United Republic of Tanzania. United Nations. CCPR/C/79/Add.97, August 18, 1998.
———. Consideration of Reports Submitted by States Parties Under Article 40 of the Cov-enant, Concluding Observations of the Human Rights Committee: United Republic of Tanzania. United Nations. CCPR/C/TZA/CO/4, August 6, 2009.
———. UN Human Rights Committee: Concluding Observations: Cameroon. November 4, 1999, CCPR/C/79/Add.116. http://www.refworld.org/docid/3ae6b01014.html.
Human Rights Council. Human Rights, Democracy, and the Rule of Law.
A/HRC/RES/19/36. 2012.
http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/19/36.
———. “Report of the Working Group on the Universal Periodic Review: United Republic
of Tanzania.” A/HRC/19/4, 2011.
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19 /A-HRC-19-4_en.pdf.
Parliament of the United Republic of Tanzania. “The Legislative Process in Tanzania.”
Fact Sheet No. 1. Parliament of the United Republic of Tanzania. Accessed March 15, 2016. http://www.parliament.go.tz/docs/FACTSHEET_1.pdf.
Tanzanian Ministry of Energy and Minerals. “Model Production Sharing Agreement be- tween the Government of the United Republic of Tanzania and the Tanzanian Pe-troleum Development Corporation and ABC LTD for Any Area,” 2013.
United Nations Office of High Commissioner of Human Rights. “Minority Rights under the African Charter on Human and Peoples’ Rights.” Pamphlet. UN Guide for
Mi-norities. UNOHCHR, 2001.
http://www.ohchr.org/Documents/Publications/GuideMinorities6en.pdf.
Books and Articles
Besley, Timothy, and Robin Burgess. “The Political Economy of Government Responsive-ness: Theory and Evidence in India.” Quarterly Journal of Economics 117, no. 4 (2002): 1415–51.
Camaj, Lindita. “The Media’s Role in Fighting Corruption: Media Effects on Governmen-tal Accountability.” The International Journal of Press/Politics 18, no. 1 (January 1, 2013): 21–42. doi:10.1177/1940161212462741.
Curtis, Mark, and Tundu Lissu. “A Golden Opportunity?: How Tanzania Is Failing to Ben-efit from Gold Mining.” Christian Council of Tanzania, National Council of
Mus-lims in Tanzania, and Tanzanian Episcopal Conference, 2008.
https://www.kirkensnodhjelp.no/contentassets/a11f250a5fc145dbb7bf932c8363c99 8/a-golden-opportunity-2nded.pdf.
Desai, Deval, and Michael Jarvis. “Governance and Accountability in Extractive Industries:
Theory and Practice at the World Bank.” Journal of Energy & Natural Resources Law 30, no. 2 (June 2012): 101–28. doi:10.1080/02646811.2012.11435288.
Hyden, Goran. “Governance and the Study of Politics.” In Governance and Politics in Af-rica, edited by Goran Hyden and Michael Bratton, 1–26. Boulder, Colorado: Lynne Reinner Publishers, 1992.
International Monetary Fund. Sub-Saharan Africa: Maintaining Growth in an Uncertain World. Regional Economic Outlook : REO, 2012, Oct. Washington, DC: Interna-tional Monetary Fund, 2012.
Lange, Siri. “Gold and Governance: Legal Injustices and Lost Opportunities in Tanzania.”
African Affairs 110, no. 439 (April 1, 2011): 233–52. doi:10.1093/afraf/adr003.
Makene, Madoshi, Jody Emel, and James Murphy. “Calling for Justice in the Goldfields of Tanzania.” Resources 1, no. 1 (December 19, 2012): 3–22.
doi:10.3390/resources1010003.
Malena, Carmen, Reiner Forster, and Janmejay Singh. “Social Accountability: An Intro-duction to the Concept and Emerging Practice.” Social Development Paper. World
Bank, December 2004.
http://c.ymcdn.com/sites/www.istr.org/resource/resmgr/working_papers_toronto/ma lena.carmen.pdf.
Maxeiner, James R. “Some Realism about Legal Certainty in the Globalization of the Rule of Law.” Houston Journal of International Law 31, no. 1 (2008): 27–
46.
McConville, Mike, and Wing Hong Chui. “Introduction and Overview.” In Research Methods for Law, edited by Mike McConville and Wing Hong Chui. Research Methods for the Arts and Humanities. Edinburgh: Edinburgh Univ. Press, 2007.
Mihyo, Paschal. Non-Market Controls and the Accountability of Public Enterprises in Tan-zania. [S.l.]: Palgrave Macmillan, 2014.
Miller, Arthur H., and Ola Listhaug. “Political Parties and Confidence in Government: A Comparison of Norway, Sweden and the United States.” British Journal of Political Science 20, no. 3 (July 1990): 357–86.
Mueller, John. “Theory of Democracy.” American Journal of Political Science 36, no. 4 (November 1992): 1015–22.
Nalwoga, Lillian. “Access to Information in Tanzania: Laws, Policies and Practice.” CIPE-SA, March 24, 2015. http://www.cipesa.org/2015/03/access-to-information-in-tanzania-laws-policies-and-practice/.
O’Donnell, Guillermo. “Horizontal Accountability in New Democracies.” In The Self-Restraining State, edited by Andreas Schedler, Larry Diamond, and Marc F.
Plantter, 29–52. Boulder, CO: Lynne Reinner, 1999.
O’Flaherty, Michael. “International Covenant on Civil and Political Rights: Interpreting Freedom of Expression and Information Standards for the Present and the Future.”
In The United Nations and Freedom of Expression and Information: Critical Per-spectives, edited by Tarlach McGonagle and Yvonne Donders, 55–88. Cambridge:
Cambridge Universtiy Press, 2015.
http://search.ebscohost.com/login.aspx?direct=true&scope=site&db=nlebk&db=nla bk&AN=996379.
Rehman, Javaid. International Human Rights Law. 2. ed. Harlow: Pearson, 2010.
Reinikka, Ritva, and Jakob Svensson. “The Power of Information: Evidence from a News-paper Campaign to Reduce Capture.” Working Paper. Policy Research. Washing-ton, DC: The World Bank, 2004.
Schedler, Andreas. “Conceptualizing Accountability.” In The Self-Restraining State, edited by Andreas Schedler, Larry Diamond, and Marc F. Plantter, 13–28. Boulder, CO:
Lynne Reinner, 1999.
Shringare, Alaknanda. “Democratic Governance: Some Theoretical Issues.” In Party Poli-tics and Democratic Governance in India. New Delhi: Concept Publishing Compa-ny, 2009.
Singh, Sandhiya. “The Impact of Clawback Clauses on Human and Peoples’ Rights in Af-rica.” African Security Review 18, no. 4 (2009): 94–104.
Society for International Development, ed. The Extractive Resource Industry in Tanzania:
Status and Challenges of the Mining Sector. Nairobi: Society for International De-velopment, Regional Office for Eastern Africa, 2009.
Stapenhurst, Richard. The Media’s Role in Curbing Corruption. Washington, DC: The World Bank, 2000.
Tusalem, Rollin F. “A Boon or Bane? The Role of Civil Society in Third- and Fourth-Wave Democracies.” International Political Science Review 28, no. 3 (2007): 361–
86.
Wilson, Geoffrey. “Comparative Legal Scholarship.” In Research Methods for Law, edited by Wing Hong Chui and Michael McConcille, 87–103. Research Methods for the Arts and Humanities. Edinburgh: Edinburgh University Press, 2007.
World Bank, ed. A Contribution to the Policy Debate. Anticorruption in Transition, The World Bank ; [1]. Washington, DC: World Bank, 2000.
Reports
Article 19. “Tanzania: Ban on Newspaper MwanaHalisi Violates Right to Freedom of
Ex-pression.” Article 19, August 1, 2012.
https://www.article19.org/resources.php/resource/3398/en/tanzania:-ban-on-newspaper-mwanahalisi-violates-right-to-freedom-of-expression.
———. “Tanzania: Cybercrime Act 2015.” Legal Analysis. Article 19, May 2015.
https://www.article19.org/data/files/medialibrary/38058/Tanzania-Cybercrime-Bill-TO.pdf.
———. “The United Republic of Tanzania: Article 19’s Submission to the Universal Peri-odic Review, For Consideration at the Twelfth Session of the UPR Working Group,
October 2011.” NGO Report. Article 19, 2011.
http://lib.ohchr.org/HRBodies/UPR/Documents/session12/TZ/Article19-eng.pdf.
Baker, Raymond, Christine Clough, Dev Kar, Brian LeBlanc, and Joshua Simmons. “Hid- ing in Plain Sight: Trade Misinvoicing and the Impact of Revenue Loss in Ghana, Kenya, Mozambique, Tanzania, and Uganda: 2002-2011.” Global Financial Integri-ty, May 2014.
BG Group. “Tanzania.” BG Group, 2015. http://www.bg-group.com/assets/files/cms/
CountryData/BG_DataBook_Tanzania_Sept15.pdf.
Bomani, Mark. “Report of the Presidential Mining Review Committee to Advise the Gov-ernment on Oversight of the Mining Sector.” The United Republic of Tanzania, April 2008. http://www.resourcegovernance.org/training/resource_center/report-tanzanian-presidential-mining-review-committee-advise-government-min.
Charles, Mariagoreth, Boka Lyamuya, and Benedict Ishabakaki. “Report on the Situation of Human Rights Defenders in Tanzania 2014.” Tanzania Human Rights Defenders Coalition, 2014.
“Civil Society in Tanzania.” Working Paper. Helsinki: Kepa, 2007.
https://www.kepa.fi/tiedostot/julkaisut/civil-society-in-tanzania.pdf.
Freedom House. “Norway: Freedom in the World 2015.” Country Report. Freedom in the World. Freedom House, 2015. https://freedomhouse.org/report/freedom-world/2015/norway.
———. “Tanzania: Freedom in the World 2015.” Country Report. Freedom in the World.
Freedom House, 2016. https://freedomhouse.org/report/freedom-world/2015/tanzania.
———. “Tanzania: Freedom in the World 2016.” Country Report. Freedom in the World.
Freedom House, 2016. https://freedomhouse.org/report/freedom-world/2016/tanzania.
———. “Tanzania: Freedom of the Press.” Country Report. Freedom of the Press. Free-dom House, 2015. https://freeFree-domhouse.org/report/freeFree-dom-press/2015/tanzania.