Why grilling the CAG over remarks is unacceptable

Dar es Salaam. The unfolding tug of war between the Office of the National Assembly and the office of the National Audit Office (NAOT) is intriguing.

Recently Prof Mussa Assad, the incumbent Controller and Auditor General (CAG), analyzed the role of parliament in relation to his duties while on his work visit to the US.

Responding to the question posed to him by a journalist from the UN’s Radio Swahili service, on how his office is being supported by other organs of the state, Prof Assad lucidly explained that the Parliament of Tanzania has the cardinal duty to oversee the implementation of various recommendations contained in the CAG reports.

He, however, bluntly complained that as of recent the Parliament has been weak and sluggish when it comes to implementation of his office’s work.

Prof Assad explained that NAOT has been repeatedly issuing reports on how public funds are being misused but the Parliament feebly worked on them by taking skimpy interventions.

Prof Assad is arguably among a few high-ranking government officials who had been picked from academic institutions and have invariably demonstrated highest degree of independence, professionalism, integrity and allegiance to the state values.

Reacting to the utterances made by the CAG, the Speaker of the National Assembly, Mr Job Ndugai, on January 7, 2019 ordered the CAG, Prof Mussa Assad, to appear before the Parliamentary Privileges, Ethics and Powers Committee on January 21, 2019 voluntarily or else he will be forced to appear before the committee with his hands handcuffed.

Mr Ndugai insisted that CAG Assad will be quizzed for maliciously disrespecting the law-making body while on duty in US.

The mandate and independence of the NAOT and CAG

NAOT is the supreme audit Institution in the United Republic of Tanzania headed by the Controller and Auditor General (CAG). Its mandate is enshrined under Article 143 of the Constitution of the United Republic of Tanzania.

The powers and mandate of the CAG are clearly stipulated in Sections 11 and 12 of the Public Audit Act of 2008.

The powers, functions and responsibilities of the Controller and Auditor General have also been governed by four different constitutions since Independence.

The four constitutions being referred to are the Independence Constitution of Tanganyika, the Republican Constitution of Tanganyika, the Interim Constitution of the United Republic of Tanzania and the Constitution of the United Republic of Tanzania.

These four constitutions explicitly stated the constitutional mandate, the powers, the functions and the responsibilities of the CAG, as the controllership of funds from the Consolidated Fund and auditing of the use of such funds.

These constitutions had further elaborated on the powers of the CAG such as to have unlimited access of books of accounts and any other information that is the subject of audit. Moreover, these constitutions have all along provided for independence of the CAG that in the course of performing his functions, he should not be subject to any order or direction from any government department or any person on any issue concerning such audit.

Where does the Speaker get powers to summon CAG?

The Speaker’s order for CAG questioning has ignited a fierce public debate on whether he (the Speaker) has the mandate to summon CAG. The answer can be yes on no depending on what he is being summoned for.

It should be remembered that the CAG office and the Parliament have complementary roles, so they hardly avoid each other. The CAG office prepares reports and submit them to Parliament for action.

So in this context the Parliament can summon the CAG or any other officer of the NAOT only if the call relates to the routine working relationship between the two offices. The Parliament can also use the Parliamentary Immunity, Powers and Privilege Act to summon CAG only to provide evidence of any matter attended by the Parliament in relation to his office.

The Parliament has no power whatsoever, to summon the CAG for the purpose of grilling him on any disciplinary matter related to his duties.

Therefore the provisions used by the Speaker under Parliamentary Immunity, Powers and Privilege Act as the legal basis of his call are erroneously cited.

No any Act of Parliament can overrule the immunity of the CAG guaranteed by the Constitution. If we allow this to happen one day the Parliament may also summon Chief Justice and Judges for “disrespecting the Parliament while on their duties.”

As pointed out above the office of the CAG is the constitutional creature.

Mr Ndugai, for this matter therefore acted beyond his powers to summon CAG for disciplinary scrutiny, as the said parliament committee has no legal mandate to discipline CAG for anything related to his duties. Article 143 (6) of the Constitution unequivocally says; “In the discharge of his functions in accordance with the provisions of sub-articles (2), (3) and (4) of this Article, the Controller and Auditor-General shall not be obliged to comply with the order or direction of any other person or government department, but the provisions of this sub-article shall not preclude a court from exercising jurisdiction to enquire into whether the Controller and Auditor- General has discharged his functions in accordance with the provisions of this Constitution or not.”

It is explicitly clear that the Speaker of the Parliament acted excessively by exercising the powers that are beyond the confines of his mandate.

According to my own emphasis, Mr Ndugai ought to have summoned Prof Assad as CAG under normal line of duty and not as an errant to be grilled by the committee that lacks that mandate. In my view, CAG was correct to speak of the Parliament because it is the only main institution mandated by the Constitution and the Law to effectively oversee the implementation CAG reports.

This was effectively done during the Escrow scandal under PAC when, Mr Ndugai was the deputy speaker in 2014.

During those days the Parliament through PAC and other oversite committees performed their role majestically by even summoning some of the key officials implicated by CAG reports such as the PCCB boss, TRA officials and others.

The office of the CAG works together with Parliament through the following oversite permanent committees; the Public Accounts Committee (PAC), and the Local Authorities Accounts Committee (LAC) .

These committees have been mentioned by the Audit Act section 38 and their duties are to digest CAG reports after they have been tabled in the National Assembly. The Parliamentary oversight committees then prepare and submit reports to the parliament for actions. The oversight committees focuses on following jurisdictions;

The Public Accounts Committee responsible for the oversight of the Central Government i.e Ministries, Independent Government Departments and Executive Agencies and government parastatals.

The Local Government Accounts Committee which is responsible for the oversight of the Local Government Authorities

Therefore, the statement by Prof Assad, after all is just a fair comment, which any other citizen is bound to express as his/her opinion on the role of the Parliament in fighting corruption in the country.

Section 38 of the Public Audit Act 2008 clearly states the role of Parliament and the working relationship between the Parliamentary and that of NAOT.

In my opinion, let the Speaker and the parliament invite Prof Assad not as a criminal in handcuffs but as the working partner and independent state official who need to be treated with all respect for the interest of the country, to express his candid opinion about the Parliament while discharging its oversite roles with respect to the war against corruption in the country.

The parliamentary standing orders used by the Speaker are not and will not be above the Constitution.

The CAG office, given the nature of its works, is currently protected by the Constitution, to the extent that even the President has no direct mandate to summon straightforwardly the CAG on any disciplinary matter. in relation to his duties.

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