The Court dismisses this case.
On Friday, 28th January, 2022; the High Court of Tanzania, sitting as a panel of three Judges; dismissed Mbatia’s constitutional case, holding that Ndugai “had followed the correct procedure in submitting his resignation letter, as per article 149 (1) and (2) of the constitution of the United Republic”.
In the matter of constitutional litigations.
In my opinion, looking at this matter from the constitutional litigation point of view, there are two sides relating to James Mbatia’s move: a positive side, and a negative side. On the positive side, is the fact that the case offers a useful lesson on this subject of “constitutional litigation”. This is because constitutional litigations have been a rather rare phenomenon in our jurisdiction. Even though the mood of anticipating an ‘explosion’ of constitutional litigation was partly created by Professor Issa Shivji; who, in his inaugural Professorial Lecture at the University of Dar es Salam, vigorously challenged the powers of Parliament to amend the constitution, specifically the list of ‘Union Matters’, which appears in the First Schedule to the Union constitution.
In his lecture, Professor Shivji strongly asserted that “the amending Acts could be impugned in the domestic courts on the ground of repugnancy”. The ‘explosion of constitutional litigation was expected, mainly because of the large number of similar amendments which had been made to the constitution following the adoption of multi-party politics; and particularly, in view of the controversy, championed by the Civil United Front party (CUF), which accompanied the 11th constitutional amendment, that was made on 2nd December, 1994.
The CUF Secretary General had written letters addressed to both the Speaker of the National Assembly, and the Registrar of Political Parties; claiming that a breach of the constitution had occurred, when Parliament enacted the said constitutional amendment “with a two-thirds of the whole House, instead of a two-thirds majority of the Mainland MPs and a two-thirds majority of the Zanzibar MPs voting separately” .
The CUF Secretary General had written letters addressed to both the Speaker of the National Assembly, and the Registrar of Political Parties; claiming that a breach of the constitution had occurred, when Parliament enacted the said constitutional amendment “with a two-thirds of the whole House, instead of a two-thirds majority of the Mainland MPs and a two-thirds majority of the Zanzibar MPs voting separately” .
I was the incumbent Speaker at that material time. Hence, I responded to his letter, by explaining that the voting procedure in adopting the said 11th amendment was done under article 98(1 (a) of the constitution; and that his claim was wrongly based on article 98 (b); which applies only to certain specified matters which are listed in the Second Schedule of the constitution. Since the 11th Amendment did not touch any of the specified matters listed therein; there clearly was no breach of the constitution.
My response seems to have convinced the CUF Secretary General, who said nothing more about it; and did not go to petition the High Court in the way James Mbatia did in the instant case. Thus, and perhaps fortunately, the anticipate ‘explosion’ did not happen.
On the one hand, Mbatia’s action in filing a constitutional case is quite refreshing; as the holding of the court in this case, has given us new insights into the meaning, and the workings of our country’s constitution.
But on the other hand, his action has produced some (perhaps unexpected) strange negative features. Strange things do of course happen from time to time; but this was the strangest thing to have happened in a very long time; since, by that action, James Mbatia had reduced his argument to the level of absurdity!
It should be noted however, that it was not the taking of that court action which was strange, not at all. What was strange, was the argument on which that court action was based. The action itself was not strange because, under the provisions of article 26(2) of the constitution of the United Republic of Tanzania, every citizen who is aggrieved by what he considers to be a breach of the law, has the right to petition the courts, in order to get the matter determined; Ordinarily, court petitions are filed for the purpose of either seeking to determine whether an alleged breach of the law has indeed occurred; or that the procedure that was followed in making the relevant decision , did not comply with the provisions of the law, or with the requirements of natural justice.
It should be noted however, that it was not the taking of that court action which was strange, not at all. What was strange, was the argument on which that court action was based. The action itself was not strange because, under the provisions of article 26(2) of the constitution of the United Republic of Tanzania, every citizen who is aggrieved by what he considers to be a breach of the law, has the right to petition the courts, in order to get the matter determined; Ordinarily, court petitions are filed for the purpose of either seeking to determine whether an alleged breach of the law has indeed occurred; or that the procedure that was followed in making the relevant decision , did not comply with the provisions of the law, or with the requirements of natural justice.
Mbatia’s action of going to petition the court in the instant case, was therefore perfectly in order, for two good reasons: First, “access to justice” is a cherished constitutional right’; and, second, the holding of the court has, presumably, enhanced our understanding, and the working, of our country’s constitution. This now, incidentally, reminds me of the following instructive lines in Shakespeare’s Macbeth; Act 1, scene 1 :“ 1st witch : when shall we three meet again ? 2nd witch : when the hurly burly is done, when the battle is lost and won.
3rd witch : That will be ere the set of sun”. Well, in the instant case, we can say that “the hurly burly is now done, and the battle has been lost and won”
A matter of commonsense.
But, it is also true that former Speaker Ndugai’s letter of resignation was published in many of the mass media outlets, thus making it public knowledge. Hence, ordinary commonsense would aver that with such knowledge, any ‘reasonable person’ could easily satisfy himself of the fact that a procedural breach had indeed occurred, when former Speaker Ndugai addressed his resignation letter to the Secretary General of his party (CCM), instead of addressing it the Clerk of the National Assembly, but that mistake was quickly cured; the Clerk of the National Assembly confirmed that she had received that resignation letter. James Mbatia is, clearly and obviously, a reasonable man, and of sound mind. Then why did he go to court? This is what makes his action look strange, perhaps even stranger than fiction. But the sages have also warned, that “commonsense is not so common”. Could this, perhaps be a case in point?
Was the procedure unconstitutional?
The High Court has now confirmed that the procedure followed by Ndugai, was fully in accordance with the relevant provisions of the constitution. Thus, for the proverbial ‘reasonable man’, it is “Roma locuta, causa finita”
Article 149 (1) (c) of the country’s constitution provides that “ iwapo mtu huyo ni Spika, taarifa yake ya kujiuzulu ataiwakilisha kwenye Bunge”. It surely could not have been the intention of the constitution- makers, that the person resigning would himself appear before Bunge in person, in order to submit his resignation letter; since the normal method of submitting written communications to any Organization, is by addressing the relevant communication to the CEO of that Organization. That is why, for example, letters addressed to a government Ministry must be addressed to the Permanent Secretary of that Ministry. The Clerk of the National Assembly is the CEO of the National Assembly, which, in government documents, is categorized as an “Independent Department”.
But, it is also true that former Speaker Ndugai’s letter of resignation was published in many of the mass media outlets, thus making it public knowledge. Hence, ordinary commonsense would aver that with such knowledge, any ‘reasonable person’ could easily satisfy himself of the fact that a procedural breach had indeed occurred, when former Speaker Ndugai addressed his resignation letter to the Secretary General of his party (CCM), instead of addressing it the Clerk of the National Assembly, but that mistake was quickly cured; the Clerk of the National Assembly confirmed that she had received that resignation letter. James Mbatia is, clearly and obviously, a reasonable man, and of sound mind. Then why did he go to court? This is what makes his action look strange, perhaps even stranger than fiction. But the sages have also warned, that “commonsense is not so common”. Could this, perhaps be a case in point?
Was the procedure unconstitutional?
The High Court has now confirmed that the procedure followed by Ndugai, was fully in accordance with the relevant provisions of the constitution. Thus, for the proverbial ‘reasonable man’, it is “Roma locuta, causa finita”
Article 149 (1) (c) of the country’s constitution provides that “ iwapo mtu huyo ni Spika, taarifa yake ya kujiuzulu ataiwakilisha kwenye Bunge”. It surely could not have been the intention of the constitution- makers, that the person resigning would himself appear before Bunge in person, in order to submit his resignation letter; since the normal method of submitting written communications to any Organization, is by addressing the relevant communication to the CEO of that Organization. That is why, for example, letters addressed to a government Ministry must be addressed to the Permanent Secretary of that Ministry. The Clerk of the National Assembly is the CEO of the National Assembly, which, in government documents, is categorized as an “Independent Department”.
Therefore to me, since the Clerk of the National Assembly had confirmed that she had received Ndugai’s letter of resignation, Mbatia’s action of challenging that procedure, remains an ingenious paradox!
The good news is that we now have a new Speaker, Dr. Tulia Ackson Mwansasu, who becomes the eighth in the order of succession of National Assembly Speakers, since Tanganyika’s independence in December 1961. In this distinguished list are : 1. AbdulKarim Karimjee ( December 1961-December 1962). 2. Adam Sapi Mkwawa (December 1962 - October 1983). 3. Erasto Mbwana Mange’nya (October 1983 - October 1985). Adam Sapi MKwawa again (October 1985 - April 1994. 4. Pius Msekwa (April 1994 - December 2005. 5. Samuel Sitta (Deember 2005 - October 2010). 6. Anne Makinda (October 2010 - October 2015. 7. Job Ndugai (October 2015 - January 2022). And now: 8. Dr. Tulia Ackson Mwansasu.
The election of the Deputy Speaker.
The National Assembly can now proceed with its business of electing the new Speaker; in accordance with the provisions of article 85 (2) (b) of the Constitution of the United Republic of Tanzania, 1977; namely: “katika kikao cha kwanza cha Bunge baada ya nafasi ya Naibu Spika kuwa wazi, au mapema iwezekanavyo baada ya kikao hicho”.
Dr. Tulia Ackson’s elevation to the Speakership is actually what creates a vacancy in the Deputy Speaker’s position. Although Dr. Tulia Ackson herself decided to resign from that position on the day before her election, possibly in response to opinions which had been expressed by some observers suggesting that she must resign from her Deputy Speaker’s position in order to qualify for election to the Speakership; I challenged that false assertion; just because I am not aware of any statutory provision, or National Assembly Rule, which requires such resignation by the incumbent Deputy Speaker who is seeking election to the Speakership.
However, resignation from any office, is always a personal decision. Hence, there is no valid reason for discussing that personal decision which was taken by Dr. Tulia Ackson. Thus, the next step will be the election of the Deputy Speaker, to fill the vacancy so created. This exercise will certainly not be as exciting as was that of the competition for the Speakership; for two cogent reasons. One is that the Speaker is the Head of that second ‘pillar’ of governance, known as the Legislature. Therefore, even for that reason alone, it attracts much greater interest and much keener electoral competition.
The good news is that we now have a new Speaker, Dr. Tulia Ackson Mwansasu, who becomes the eighth in the order of succession of National Assembly Speakers, since Tanganyika’s independence in December 1961. In this distinguished list are : 1. AbdulKarim Karimjee ( December 1961-December 1962). 2. Adam Sapi Mkwawa (December 1962 - October 1983). 3. Erasto Mbwana Mange’nya (October 1983 - October 1985). Adam Sapi MKwawa again (October 1985 - April 1994. 4. Pius Msekwa (April 1994 - December 2005. 5. Samuel Sitta (Deember 2005 - October 2010). 6. Anne Makinda (October 2010 - October 2015. 7. Job Ndugai (October 2015 - January 2022). And now: 8. Dr. Tulia Ackson Mwansasu.
The election of the Deputy Speaker.
The National Assembly can now proceed with its business of electing the new Speaker; in accordance with the provisions of article 85 (2) (b) of the Constitution of the United Republic of Tanzania, 1977; namely: “katika kikao cha kwanza cha Bunge baada ya nafasi ya Naibu Spika kuwa wazi, au mapema iwezekanavyo baada ya kikao hicho”.
Dr. Tulia Ackson’s elevation to the Speakership is actually what creates a vacancy in the Deputy Speaker’s position. Although Dr. Tulia Ackson herself decided to resign from that position on the day before her election, possibly in response to opinions which had been expressed by some observers suggesting that she must resign from her Deputy Speaker’s position in order to qualify for election to the Speakership; I challenged that false assertion; just because I am not aware of any statutory provision, or National Assembly Rule, which requires such resignation by the incumbent Deputy Speaker who is seeking election to the Speakership.
However, resignation from any office, is always a personal decision. Hence, there is no valid reason for discussing that personal decision which was taken by Dr. Tulia Ackson. Thus, the next step will be the election of the Deputy Speaker, to fill the vacancy so created. This exercise will certainly not be as exciting as was that of the competition for the Speakership; for two cogent reasons. One is that the Speaker is the Head of that second ‘pillar’ of governance, known as the Legislature. Therefore, even for that reason alone, it attracts much greater interest and much keener electoral competition.
And secondly, because the interest in that election will be strictly limited; since the Deputy Speakership is confined only to persons who are members of Parliament; unlike the Speakership itself, which is open to “all and sundry” who have the specified qualifications.
But apart from that, the procedure for electing the Deputy Speaker will be largely the same as that of the Speaker, and as provided for in the First Schedule to the Parliamentary Rules of Procedure (Nyongeza ya Kwanza : Kanuni za Uchaguzi wa Spika na Naibu Sipka); namely, that any interested member of Parliament may file an application to his/her political party seeking to be nominated as a candidate for that election; and the relevant political party will submit only one name to the Clerk of the National Assembly (who is the Returning Officer for all such elections), at the time and date specified by the Returning Officer for that purpose. And, eventually, the voting process will take place as provided for in the said National Assembly Rules of procedure.
piomsekwa@gmail.com /0754767576.
piomsekwa@gmail.com /0754767576.
Source: Daily News and Cde Msekwa.
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