PRESIDENT HUSSEIN ALI MWINYI’s PRACTICAL LESSON ON POLITICAL ‘VICARIOUS LIABILITY’.

 

On February 2^nd, 2024; the print media carried some news, regarding Zanzibar President Dr. Hussein Ali Mwinyi’s powerful statement, or ‘lecture’, on what in law is known as “vicarious liability”.  In legal parlance, the word “liability” means “a legal obligation, or duty’. And the phrase “vicarious liability” is defined as “the liability which arises because of one person’s relationship to another”. Thus, for example, an employer is generally liable for the tort of his employee which is committed in the course of his employment. And in criminal law, a master may sometimes be held ‘vicariously liable’ for an offence committed by his servant.

         In terms of political leadership, this means that a political leader, particularly a Minister, may be required to resign from his position,  even  on account of wrongs committed not by himself, but by officials operating under his docket. President Mwinyi was speaking in relation to the resignation by the Minister responsible for the tourism docket in the Zanzibar government, Mr. Simai Mohamed Said.                                                                         

        Following his sudden and unexpected resignation, Minister Simai had issued a lengthy statement detailing the reasons for his resignation; without stating that reason very clearly, and unambiguously. Instead, he had resorted to generalizations about “circumstances which had made it difficult for him continuing to serve in that capacity”. He was, undoubtedly, telling the truth; but, obviously, not the whole truth. And, if this may be put in slangy style, he was being “economical with the truth”. Presumably, this is what prompted President Hussein Mwinyi to ‘caution’ that “people should  be truthful,  by detailing  the actual reasons behind their action”, as shown in the  paragraph below. 
        For those who might have missed President Mwinyi’s statement, here is what he is reported to have said: - “In terms of accountability, resignation decisions are taken by political leaders after differing with the government on a policy issue”. He also cautioned that “people should be truthful by detailing the actual reasons behind their decisions”.                         

         He further said that “problems arising in the docket that is supervised by a Minister, could lead to his or her resignation”; and  went on to cite several examples to illustrate and amplify this important point. That ‘caution’, is precisely what I have described above as “a practical lesson on political vicarious liability”. And it relates, in special particular, to Ministers, and Regional Commissioners. And it is for that specific reason, that I have chosen this topic as the subject for today’s presentation; as I have personally witnessed many similar occurrences during President Julius Nyerere’s Presidency. My purpose here, is to illustrate three points.

         One, is that such resignations are normally forced resignations, caused by directive from the appointing authority, namely the President. That is to say, they are not voluntary decisions, that are  made by the person who tenders his or her resignation in such circumstances.                                                    

         The second, is to show that President Mwinyi’s action in that respect, was not an isolated incident. He was only building on past practice and experience.                                                   

        The third, and perhaps more important, is to draw attention to this little known doctrine of “vicarious liability”, which is also provided for in our legal regime. I wish, in particular, to highlight and emphasize the point, that these are not voluntary decisions. This could be useful, and helpful knowledge, to the current holders of such positions, and enable them to be psychologically prepared, in the unlikely event that it is applied  to any of them. I have used the word unlikely, but the possibility always exists; as will be shown in the examples below.
President Nyerere’s actions in that respect.
The following incident will help to illustrate that there are  some other reasons as well, that could be the cause for forced resignations. I have in mind,  the resignation of Minister Austin Kapere Shaba, in 1963; which was not a case of “vicarious liability”, but was, instead, a case of ‘violation of the constitution’; caused by his failure, or negligence, to disclose the fact of his being a non-citizen. It also helps to illustrate President Hussein Mwinyi’s point, that “persons (who are required to resign in such circumstances) should be truthful in detailing their reasons for resignation”.                                                                    

        Austin Shaba was, at the material time, Minister for Health in President Nyerere’s government, and a Member of Parliament for the Mtwara Urban constituency. He had, most probably unwittingly,  committed this offence when  he failed to disclose the fact of his not being a citizen of Tanganyika (now Tanzania Mainland); because he was born in neighbouring Nyasaland (now Malawi). When President Nyerere discovered this, he directed him to write a letter of resignation; which Minister Shaba immediately did, in which he falsely attributed his resignation  to “health reasons”. President Nyerere refused to accept his letter, insisting that he must disclose the true reason for his resignation. Minister Austin Shaba had, obviously, not been truthful in stating the reason for his resignation. He went back and wrote another letter, disclosing the truth, and promising to correct that mistake.

The incidents directly relating to ‘vicarious liability’.
The most prominent of these incidents, is the resignation of Minister Ali Hassan Mwinyi, and three other high ranking government leaders in 1977. Ali Hassan Mwinyi was, at that time, Minister for Home Affairs, in President Nyerere’s government. This incident was, in political terms, a very serious occurrence; for it involved the forced resignation of four leaders: one other Minister, and two Regional Commissioners. The two Ministers were Ali Hassan Mwinyi, Minister for Home Affairs, and Peter Saidi Siyovelwa, Minister responsible for the Security Department.  While the two Regional Commissioners were Peter Kisumo, RC Mwanza, and Marco Mabawa, RC Shinyanga; who were separately asked (read directed) by President Julius Nyerere to submit to him   their letters of resignation immediately.                                              

        As will be shown below, they themselves had done nothing wrong. But it was the government officials working in their respective Ministries, and Regions, who had committed the crimes for which these leaders were punished under the said doctrine of “vicarious liability”. This may perhaps sound ‘unfair’ to the ordinary mind, for a person to be punished for wrongs he had not committed; but that is, precisely, the meaning of the legal phrase “vicarious liability”.

The circumstances leading to President Nyerere’s decision.
The circumstances were that at the material time, there had emerged what amounted to a ‘security crisis’ in the Regions of Shinyanga and Mwanza, as a result of numbers of people being murdered, reportedly on suspicion that the victims were causing other peoples’ deaths through the dreaded witchcraft practices. These deaths became such a big concern to the people living in these Regions, that it became imperative, and necessary, for the government to intervene, in order to restore peace and tranquility among the people there. Thus, the government security organs were ordered to investigate, and take the necessary remedial measures to restore peace.                                                              

        The government’s intention was clearly good, and in line with the established principles and conventions of good governance. However, what went terribly wrong, was the cruel, unconventional  methods that were used  in the course of these investigations. This cruelty became known only after one person had died in the hands of the said investigators 
        The news of this person’s death somehow reached the ears of President Nyerere, who promptly appointed an ‘inquiry team’ to go and find out what exactly had happened. The team was led by the Chairman of the then ‘Permanent Commission of Enqury (PCE).  Its report, which was submitted to the President, contained horrifying narratives of the extraordinary cruelty that was being inflicted by the security agents on the suspected victims.   
        That Report is what ruffled President Nyerere’s feelings, and drove him into taking the actions of not only ordering the arrest and prosecution of the security agents involved in this torture exercise, but  also  ordered  the political leaders mentioned above, to  resign immediately.  

        This ‘inside’ information was revealed at a meeting of the combined National Executive Committees of TANU and the ASP, at which President Nyerere himself literally “spilt the beans” in anger caused by the injustices that had been committed by state agents against innocent individuals. (These combined NEC meetings were being held frequently, in order to receive reports on progress being made regarding the preparations for the imminent establishment of Chama cha Mapinduzi).
Subsequent, related occurrences.
What could be regarded, perhaps, as a ‘consoling’ aspect to the leaders concern, is that in practice, this “vicarious liability” punishment has been applied very sparingly. This is evidenced by the fact that after President Nyerere’s application of this doctrine, there is no record of any other President of the United Republic who has taken similar action. And it only happened again recently, when  Zanzibar President  Dr. Mwinyi, entered the stage, as already narrated above.                                                                                 
        Indeed, during his time in office, President Jakaya Kikwete did order Prime Minister Edward Lowassa in February 2008, to resign immediately from that position.  But, this was caused by Lowassa’s  own misdemeanours, and certainly not for any offences committed by his subordinates. It only helps to illustrate the other point, that resignations in such circumstances have never been voluntary decisions.                                                           

        However, records exist, of some other actions which were also taken by President Nyerere, that are closely related to “vicarious liability”. These are the cases of Mr. Mahami  Rajabu Kundya, then Regional Commissioner Tanga Region; and Mr. Abdinuru Suleiman, then Regional Commissioner Mwanza; who lost their jobs also through  forced resignations, resulting from offences committed by their subordinates in their respective jurisdictions, and not directly by themselves.                                                                              
        Theirs is an identical story, relating to their misguided enthusiasm, in implementing the ruling party’s cherished socio-economic policy of re-settling the rural population into “Ujamaa villages”, during the early post-Arusha Declaration decades.

        Because the main economic activity in the rural areas is peasant farming, this was interpreted by the leaders on the ground, as a requirement to establish  large communal ‘village farms’’ for every village within their respective areas of jurisdiction.                 

        Thus, during President Nyerere’s regular tours to the different Regions; the host Regional Commissioner was eager to impress the President, that his Region was actively implementing the said requirement of establishing ‘communal farms’ in their villages.  It was on one such scheduled tour of Mwanza Region in January 1981, when President Nyerere was taken to see a ‘village communal farm’ of cabbages, alleged to belong to one of their villages.              

        But in reality, it was a fake project, which had hurriedly been put in place in order to impress the President (the planting of cabbages having been done only the day before the President’s visit)!

        Whether by intuition, or otherwise, President Nyerere was suspicious that this was probably what had actually happened. So during his tour of the project, he stopped at one particular point, seemingly to “admire” one of the cabbages. He bent to touch the selected plant. But then, the still unstable, newly planted cabbage came out of the soil.  The secret had been exposed. And, consequently, the Regional Commissioner was sacked.          

        Similar fate had earlier befallen the Tanga Regional Commissioner, Mahami Rajab Kundya, for the same mischief, which may be described as ‘conspiracy to dupe the President’. The offences were probably committed by their District subordinates.                                                                                      
pomsekwa@gmai.com /0754767576.  

Source: Daily News.