A recent judgement by the High Court of Tanzania in Constitutional case no. 17 of 2018, cited as: Bob Chacha Wangwe vs the Attorney General and two others; nullified sections 7(1) and 7(3) of the Elections law, on the ground that they offend the articles the Constitution of the United Republic of Tanzania, which the court cited in that judgement. And, in accordance with normal procedure in judicial proceedings, the Hon. Attorney General, who was a party to the proceedings, having been aggrieved by the High Court ruling, gave notice of appeal against that judgement to the Court of Appeal. So far so good. Nothing unusual, or abnormal. However, what transpired immediately thereafter, is what motivated me to write this article, simply because of the rather unusual event which followed, namely that quite unexpectedly, and indeed most surprisingly, the Attorney General’s action was attacked by a colossal combination of a powerful ‘regiment’ of political stakeholders! This powerful combination consisted of eight Opposition political parties: ATC-WAZALENDO; CCK; CHAUMA; CHADEMA; DP; NCCR –MAGEUZI; NLD; and UPDP. The said parties, acting together, issued a joint statement which appeared in the social media under the heading: “Wapinzani watoa msimamo mkali suala la Mahakama kutengua Wakurugenzi kuwa Wasimamizi wa Uchaguzi”. In that statement, the said parties very warmly applauded the High Court judgement, but very strongly objected to the action taken by the Attorney General in appealing that decision. Now, there is, of course, no problem whatsoever in their joy and enthusiasm in supporting the said judgement, which they considered, perhaps prematurely, as “ushindi wa kihistoria”. However, their strong objection to the Attorney General’s action of appealing the High Court’s decision, is a matter of some concern.
I am personally of the settled view, that ‘Constitutional litigation’ is the most preferred, and a very healthy way, of resolving society’s socio-political problems. It simply means “the process of knocking at the door of the temple of justice” in order to seek redress for injury, which any person believes has been caused by a violation of some provision/provisions of the Constitution of the United Republic.
As was succinctly put by Judge Barnabas Samatta (as he was then) in one of his judgments delivered at the High Court: in Mtwara: “the doors to the temple of justice are always wide open and welcoming to anyone who is aggrieved by a contravention of the law”. But the said “joint action” taken by the Opposition political parties, quickly reminds me of a similar ‘joint action’ that was taken a long time ago, by an almost identical group of political stakeholders, then representing: NCCR-MAGEUZI; CUF; UDP; UMD; TADEA; PONA; NLD; NAREA; and CHADEMA. This was in respect of the election petition case of Augustine Lyatonga Mrema & others vs Attorney General & others (Miscellaneous Civil case no 59 of 1995). It appears reasonable to presume, that such ‘joint action’ is a manifest indicator of the existence of a large measure of understanding and unity between them, which is commendable. However, in the instant case of apparently demonstrating their ‘unity’ only by attacking the Attorney General’s action of filing a notice of appeal in circumstances where he felt aggrieved by the High Court’s decision is, in my humble opinion, absolutely misconceived. A proper, mature response from them, ought to have been: “O.K. we’ll see you there” (in the Court of Appeal).
Their jubilation is fully justified
Part of the said joint statement reads as follows: “Madai ya kutaka kuondolewa kwa Wakurugenzi wa Uchaguzi yamekuwa ni madai ya muda mrefu ya wananchi. Sisi vyama vya siasa, tumekuwa tukipaza sauti tangu miaka ya tisini, kutaka Wakurugenzi hawa wasisimamie Uchaguzi, na kutaka Tume Huru ya Uchaguzi kwa ujumla wake”.
That is of course quite true. For those of our readers who are interested in history, I will narrate the story of how the contested provisions found their way into our Elections law.
It is that from as early as the first multi-party elections held in 1995; the Opposition parties have repeatedly claimed that they have no confidence in the National Electoral Commission; which they constantly accused of being biased in favour of the ruling party. Their claim being based solely on the suspicion that because the members of that Commission are appointed by the President, who is also the national Chairman of the ruling party, the Commission would, inevitably, be working in favour of that party. However, that claim clearly overlooks, or disregards, the fact that the appointed Commission members were judicial officers of very high ranking, who should be trusted to carry out their duties and responsibilities “without fear or favour”.
I was the Speaker of the House at the material time, and I can vividly remember that the Government of the day did, in fact, accept this argument; and gave the necessary permission, plus the requisite funds, to the Commission to enable it to employ their own ‘independent’ Returning Officers and Presiding Officers. Thus, in preparation for the next following general elections of the year 2000, the Commission Secretariat invited applications from members of the general public to fill these important positions. But, knowing that these were purely temporary positions created only for the purpose of the relevant elections; the majority of the applications received were from unemployed persons, seeking temporary relief from the cruel misery of unemployment. And they were indeed employed, but this created immense problems of administrative failures and lack of accountability, due not only to their lack of experience in matters relating to administration, but also to the temporary nature of their employment, since they could not be held to account after the elections were over.
Hence, as a result of that experience, the National Electoral Commission itself, in its Report on the 2000 general elections, recommended a return to the previous practice of employing civil servants as election officials. Their recommendation was accepted by the Government, and that is when the Elections law was amended by Parliament, to include the provisions that have now been nullified by the High Court.
But their attack on the Attorney General’s action raises serious concern.
Considering Mr. Justice Samatta’s invitation quoted above, namely that “the doors to the temple of justice are open and welcoming to anyone who feels aggrieved by a contravention of the law”; it is obviously not right for anyone to blame the Attorney General for his justified intention to appeal a court decision which aggrieved him. Remembering my own predicament in similar circumstances.
Interestingly, this episode also reminds me of my own previous predicament, which occurred in somewhat similar circumstances, and in a similarly ‘justified’ enthusiasm on my part, to defend a decision which had been made by Parliament; which happened soon after the Court of Appeal of Tanzania had nullified sub-section 11(2) of the Elections Act, 1985. This sub-section had been introduced as an amendment to that principal Act, the effect of which was to raise the ‘deposit for security’ fee in election petitions, from the previous five hundred shillings, to five million. But subsequently, on a petition filed by one Julius Francis Ndyanabo, the Court Appeal nullified that new provision, on the ground that “Parliament had exceeded its legislative powers” in enacting that subsection”.
That is when I wrote an innocent, inoffensive, and innocuous analytical Paper, in my capacity as Speaker of the House, questioning the basis for that court’s decision, namely that “Parliament had exceeded its legislative powers”. My Paper was published in two local English language newspapers, The Daily News, and The African. Essentially, it was only commenting on that judgement, but certainly NOT challenging!) In other words, mine was, basically, a bold attempt to justify the action that had been taken by Parliament of enacting the said provision, by endeavoring to show that Parliament had, in fact, acted totally within the confines of its legislative powers. This was but a purely intellectual and academic Paper intended mainly for consideration by the relevant stakeholders in the field of law, because it made references to certain new developments in that area; and, in particular, to the new “Latimer House Guidelines for the Commonwealth”; which were issued in 1998. For that reason, I had dutifully and diligently delved into a variety of relevant legal records, to support my arguments in defense of Parliament’s action. But immediately thereafter, trouble begun in the form of a personal attack.
The flabbergasting personal attack.
An anonymous sage once said the following: “Simple minds discuss people; Ordinary minds discuss events; Great minds discuss ideas. Thus, surprisingly, despite all the efforts I had invested in crafting that article, by supporting it with incontestable material from the ‘books of authority’ on that subject, my article suddenly created what appeared to me to be “a storm in a tea cup”, when the Tanganyika Law Society issued a lengthy press statement, attacking me personally! They said this: “The author of the article is the Speaker of the National Assembly. His knowledge and experience with parliamentary affairs and powers is so vast that he has no competitor. Therefore, when Hon. Pius Msekwa picks for criticism a land mark decision of the highest court of the land for its apparent censure of parliamentary powers, his views are taken as the mainstream views of the Assembly itself . . . We therefore must feel concerned about one unfortunate impression, the impression that we may be witnessing the beginning of a “conflict of power” (between the Legislature and the Judiciary). I was absolutely flabbergasted by this personal attack, which I considered to have been totally misconceived. One Kiswahili language newspaper maliciously printed a front-page headline titled “Msekwa Awashambulia Majaji” This strange notion of ‘attacking the Judges’ was not there at all in my article. The Law Society statement continued: “Pius Msekwa was in charge of the proceedings of the House when it passed the offending provisions. His complaint that the court decision is an unfair assault on the Legislature by the Judiciary, is really misleading”.
Obviously, this was a deliberate misinterpretation of the information which I had included in the concluding paragraphs of my article, referring to the great American controversy which actively engaged many American legal minds for a long period of time in its history, regarding the issue of Judicial Review of Legislation; wherein I quoted from a book by Sylvia Snowiss titled Judicial Review and the Law of the Constitution (Yale University Press) the information that “Judicial authority to enforce the Constitution against unconstitutional Acts, is conventionally traced to Chief Justice John Marshall’s opinion in Marbury v Madison (1803), who laid the claim that “the written Constitution is included within, that law for which it is the province and duty of the Judiciary to determine what the law is.
But the extent to which Marshall’s assertion reflected a shared agreement has yet to be conclusively determined; while powerful criticism of the Marbury reasoning made over succeeding centuries, remains unanswered”. And I pointed out that one of the earliest criticisms is recorded in Gibson’s opinion expressed in Ekin v Raub (1825), who said that “It is the business of the Judiciary to interpret laws, not to scan the authority of the law maker”.
It is an interesting long story, which is narrated in great detail in my book titled: The Story of the Tanzania Parliament, pages 70 – 94. (Nyambari Nyangwine Publishers, Dar es Salaam). Copies are available on request from the author.
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Source: Daily News and Cde Msekwa Himself.