Just before midnight on 27th November, 2020, CHADEMA Chairman Freeman Mbowe, announced the decisions that had been taken by the CHADEMA Central Committee earlier that day; of having expelled all its 19 Women MPs who had just been sworn into office as members of Parliament. The East African TV (EATV) was the first media outlet to call me the following morning, to inquire about the fate of the affected MPs. The journo asked me: “In your experience as former Speaker, what will now be the fate of these MP” ? And, indeed, having been involved in several such occurrences during my Speakership, my response was immediate and off-the-cuff.
I told the inquisitive journo, that the Constitution of the United Republic is absolutely clear on this issue, for it specifies, in its article 71 (1), the specific events which, upon the occurrence of any of them, results in the immediate cessation of the MP’s membership of Parliament. The events are the following:
(a) if something happens that would disqualify the MP from being a Member of Parliament.
(b) if the MP is elected President. (c) if the MP absents himself from three consecutive sessions of the National Assembly, without the Speaker’s permission.
(d) if it is established that the MP has contravened the leadership code of ethics.
(e) if the MP is elected or nominated to become the Vice President.
(f) if the MP ceases to be a member of the political party that brought him/her into Parliament.
The basis of my response.
In my capacity as Secretary of the historic ‘Thabit Kombo Commission’ that was tasked to make proposals for the merger of the previous TANU and ASP political parties; and thereafter to make proposals for the 1977 Constitution of the United Republic; I was an active participant in the making of this Constitution, and can give testimony that the intention of the lawmakers, was that these provisions would operate immediately, upon the occurrence of any of the listed events.
But, of course, there is the doctrine of ‘the rule of law’, which requires that any administrative decision is always subject to Judicial review by the Courts. This means that if the matter is taken to court by the party that feels injured by such decision, there is the possibility of such decision being invalidated, if the evidence produced convinces the court that the said action, or decision, was taken unlawfully.
This is a cardinal principle of Administrative law. And for the benefit of those colleague, who had no chance of leaning the law; and, in particular Constitutional Law; I should perhaps explain that “Administrative law” is that branch of Constitutional law which relates to the organization, composition, functions and procedures of public authorities; whose actions or decisions do make an impact on the individual citizen.
For that reason Administrative law also makes provision for the legal restraints and liabilities to which these public authorities are subject; by prescribing tangible and enforceable limits to their power to make such decisions. These limits are prescribed by certain established rules, known as the ‘rules of natural justice’, which are designed to ensure the making of fair decisions by such authorities.
On the basis of these rules, and through the judicial review mechanism, any action taken, or decision made by a public authority which affects an individual or group of individuals, will be liable to being invalidated by a court of competent jurisdiction, where it is proved to the required standards of proof, that the authority concerned either: (a) does not have the necessary power to take such action; or (b) if it has the power, that it acted in excess of that power, or (c) that it acted in contravention of the laid down procedures for taking such action.
The ‘rules of natural justice’ are generally formulated to include the rule against bias of any kind; as well as the rule that guarantees a person’s right ‘to be heard’, which forbids a person being condemned “without him being heard”. This means that the accused person must be enabled to know exactly what he is being accused of, and must be given a fair opportunity to defend himself against the said accusations.
In my capacity as Secretary of the historic ‘Thabit Kombo Commission’ that was tasked to make proposals for the merger of the previous TANU and ASP political parties; and thereafter to make proposals for the 1977 Constitution of the United Republic; I was an active participant in the making of this Constitution, and can give testimony that the intention of the lawmakers, was that these provisions would operate immediately, upon the occurrence of any of the listed events.
But, of course, there is the doctrine of ‘the rule of law’, which requires that any administrative decision is always subject to Judicial review by the Courts. This means that if the matter is taken to court by the party that feels injured by such decision, there is the possibility of such decision being invalidated, if the evidence produced convinces the court that the said action, or decision, was taken unlawfully.
This is a cardinal principle of Administrative law. And for the benefit of those colleague, who had no chance of leaning the law; and, in particular Constitutional Law; I should perhaps explain that “Administrative law” is that branch of Constitutional law which relates to the organization, composition, functions and procedures of public authorities; whose actions or decisions do make an impact on the individual citizen.
For that reason Administrative law also makes provision for the legal restraints and liabilities to which these public authorities are subject; by prescribing tangible and enforceable limits to their power to make such decisions. These limits are prescribed by certain established rules, known as the ‘rules of natural justice’, which are designed to ensure the making of fair decisions by such authorities.
On the basis of these rules, and through the judicial review mechanism, any action taken, or decision made by a public authority which affects an individual or group of individuals, will be liable to being invalidated by a court of competent jurisdiction, where it is proved to the required standards of proof, that the authority concerned either: (a) does not have the necessary power to take such action; or (b) if it has the power, that it acted in excess of that power, or (c) that it acted in contravention of the laid down procedures for taking such action.
The ‘rules of natural justice’ are generally formulated to include the rule against bias of any kind; as well as the rule that guarantees a person’s right ‘to be heard’, which forbids a person being condemned “without him being heard”. This means that the accused person must be enabled to know exactly what he is being accused of, and must be given a fair opportunity to defend himself against the said accusations.
With this background knowledge in mind, we can now examine the matter of CHADEMA’s decision to expel its 19 Women special seats MPs.
The issues involved.
The relevant issues can be formulated as follows:-
(i) CHADEMA, as a registered political party, it is thus defined as a public authority. Its decisions are therefore subject to judicial review.
The issues involved.
The relevant issues can be formulated as follows:-
(i) CHADEMA, as a registered political party, it is thus defined as a public authority. Its decisions are therefore subject to judicial review.
(ii) Under its party constitution, CHADEMA has the power to take the said decision. Thus, if the expelled MPs feel injured by the expulsion decision, they are entitled to petition the court to review that decision; and the court will seek to establish whether, or not, the principles of natural justice were properly observed by the relevant CHADEMA Organ in arriving at this decision.
My past experiences in this connection.
There have been several such cases (of MPs’ expulsion by their political parties) in the past; and the basic intention in all these cases was, obviously, to remove them from Parliament. And my recollection is that the offence with which they were charged was, in all cases, that of “kusaliti Chama chao” (disloyalty to their party).
In 1969, when I was TANU’s National Executive Secretary, the Tanganyika African National Union (TANU), at a meeting of its National Executive Committee held in Tanga, resolved to expel a number of its constituency MPs from party membership; who, consequently. Immediately lost their membership of Parliament as well. They did not go to court to contest their expulsion.
My past experiences in this connection.
There have been several such cases (of MPs’ expulsion by their political parties) in the past; and the basic intention in all these cases was, obviously, to remove them from Parliament. And my recollection is that the offence with which they were charged was, in all cases, that of “kusaliti Chama chao” (disloyalty to their party).
In 1969, when I was TANU’s National Executive Secretary, the Tanganyika African National Union (TANU), at a meeting of its National Executive Committee held in Tanga, resolved to expel a number of its constituency MPs from party membership; who, consequently. Immediately lost their membership of Parliament as well. They did not go to court to contest their expulsion.
But more recently, during the period of my Speakership; several such cases also occurred. I remember the event when CIVIC United Front (CUF) expelled some of their specials seats women MPs. The expelled MPs petitioned the High Court for what they claimed to be wrongful dismissal. They won their case and were re-admitted into Parliament.
On a different occasion, the United Democratic Party (UDP), also expelled two of their MPs, Erasto Tumbo and Danhi Makanga; who, as a consequence thereof, also immediately lost their seats in Parliament. They did not go to court to challenge their expulsion. And on yet another occasion, CHADEMA expelled its special seats woman MP, Ms Asha Ngede, who went to court to oppose her expulsion, and won the case. She was re-instated.
On a different occasion, the United Democratic Party (UDP), also expelled two of their MPs, Erasto Tumbo and Danhi Makanga; who, as a consequence thereof, also immediately lost their seats in Parliament. They did not go to court to challenge their expulsion. And on yet another occasion, CHADEMA expelled its special seats woman MP, Ms Asha Ngede, who went to court to oppose her expulsion, and won the case. She was re-instated.
In the meantime, CHADEMA National Chairman Freeman Mbowe has been piling blames on Parliament Speaker Job Ndugai, for what he claims to be the Speaker’s “unconstitutional” decision to administer the oath to the CHADEMA MPs concerned; claiming that those persons had not been nominated by that party, as the law requires.
Chairman Freeman Mbowe further claims that because the Speaker administered the said oath outside the Parliament chamber, and at a time when the House was not sitting; this, he says, was another breach of the Constitution.
These claims do raise issues which can only be determined through hearing by the Court. The questions weather the 19 women MPs were properly nominated; and weather the Speaker’s action in administering the oath to them was unlawful; can only be determined after due hearing by a Court of competent jurisdiction.
However, by the time of writing this piece, neither CHADEMA, nor the expelled MPs, have gone to court to challenge the actions that are being complained of. Thus, unfortunately, these issues remain unresolved.
Chairman Freeman Mbowe further claims that because the Speaker administered the said oath outside the Parliament chamber, and at a time when the House was not sitting; this, he says, was another breach of the Constitution.
These claims do raise issues which can only be determined through hearing by the Court. The questions weather the 19 women MPs were properly nominated; and weather the Speaker’s action in administering the oath to them was unlawful; can only be determined after due hearing by a Court of competent jurisdiction.
However, by the time of writing this piece, neither CHADEMA, nor the expelled MPs, have gone to court to challenge the actions that are being complained of. Thus, unfortunately, these issues remain unresolved.
The Speaker’s role.
But since the Speaker received these names from the National Electoral Commission, obviously he only played his proper role in this process, by administering the required oath to them, because the MPs’ names had been submitted to him in accordance with the provisions of the relevant law.
The question of gender.
The CCM Secretary General has attempted to turn this expulsion saga into a gender issue, by welcoming the expelled women MPs to CCM. However, with due respect, I think what happened is a reflection of a more serious internal conflict within the CHADEMA leadership; and the fact that the victims are all women, was basically accidental, and only peripherally incidental thereto.
But since the Speaker received these names from the National Electoral Commission, obviously he only played his proper role in this process, by administering the required oath to them, because the MPs’ names had been submitted to him in accordance with the provisions of the relevant law.
The question of gender.
The CCM Secretary General has attempted to turn this expulsion saga into a gender issue, by welcoming the expelled women MPs to CCM. However, with due respect, I think what happened is a reflection of a more serious internal conflict within the CHADEMA leadership; and the fact that the victims are all women, was basically accidental, and only peripherally incidental thereto.
After that scheduled digression; and still basking in the sunshine of my coveted “Doctor of Laws (honoris causa)” degree, awarded to me just the day before yesterday; I will now return to the matter of the ‘ induction course’ for the newly elected MPs.
The powers and privileges of Parliament.
The Parliament of every Commonwealth country (and probably of every other country in the world), is vested with certain legal powers vested and privileges which are vested in it, which are necessary for the exercise of its constitutional functions. A book of authority on this subject titled “Parliamentary privilege in Canada” by J.P. Maignot, Q.C. (Mc-Gill Queen’s University Press, 1977); makes the following statement at page 12:- “It is obvious that no Legislative Assembly would be able to discharge its duties with efficiency, or assure its independence and dignity, unless it had adequate powers to protect itself, and its members and officials, in the exercise of their functions” ‘Parliamentary privilege’ is part of the law of the land. This is provided for in the Parliamentary Immunity, Powers and privileges Act” (no. 3 of 1988); as amended by Act no.3 of 2004). And thus, breaches of its provisions are also punishable under the law. That is to say, through court proceedings.
The powers and privileges of Parliament.
The Parliament of every Commonwealth country (and probably of every other country in the world), is vested with certain legal powers vested and privileges which are vested in it, which are necessary for the exercise of its constitutional functions. A book of authority on this subject titled “Parliamentary privilege in Canada” by J.P. Maignot, Q.C. (Mc-Gill Queen’s University Press, 1977); makes the following statement at page 12:- “It is obvious that no Legislative Assembly would be able to discharge its duties with efficiency, or assure its independence and dignity, unless it had adequate powers to protect itself, and its members and officials, in the exercise of their functions” ‘Parliamentary privilege’ is part of the law of the land. This is provided for in the Parliamentary Immunity, Powers and privileges Act” (no. 3 of 1988); as amended by Act no.3 of 2004). And thus, breaches of its provisions are also punishable under the law. That is to say, through court proceedings.
Article 100 of the Constitution of the United Republic of Tanzania, 1977; also makes provision which guarantees the privilege of ‘freedom of speech and debate’ in the House.
The specific powers are the following:- (i) The power to regulate its internal affairs; and (ii) The power to enforce discipline on its members.
And there have been some practical examples which illustrate the enforcement of these powers, such as the case of Augustine Lyatonga Mrema; who had made serious allegations in his speech inside Parliament, claiming that there was “a plot to assassinate him, which was engineered by certain government officials”.
On the basis of these allegations, Hon. Mrema was ordered by the Speaker to produce documents that would substantiate his serious allegations, and was given five days, within which to find and assemble the relevant documents. On the last day of these five days, Hon Mrema dutifully presented the awaited documents.
In the debate that followed his presentation, the House was of the unanimous view that the MP had failed to substantiate his allegations. Thereupon a motion was moved proposing his immediate suspension from Parliament for the remainder of the budget session that was then in progress . The motion was carried ‘nemine contradicente’ (with no one dissenting).
Hon. Mrema subsequently went to the High Court to challenge his suspension, wherein he filed an application for stay of execution of the resolution suspending him, in Misc. Civil Application no 36 of 1998). However, after a prolonged hearing, his application was dismissed. In dismissing the Application, Judge Katiti said:- “In obedience to article 100 (1) of the Constitution of the United Republic, I hereby declare that this court has no jurisdiction to hear this petition, and therefore the Application is un-maintainable . Hence, I dare not, by illegal force, break into the Parliamentary castle” (to be continued next week).
piomsekwa@gmail.com/0754767576.
The specific powers are the following:- (i) The power to regulate its internal affairs; and (ii) The power to enforce discipline on its members.
And there have been some practical examples which illustrate the enforcement of these powers, such as the case of Augustine Lyatonga Mrema; who had made serious allegations in his speech inside Parliament, claiming that there was “a plot to assassinate him, which was engineered by certain government officials”.
On the basis of these allegations, Hon. Mrema was ordered by the Speaker to produce documents that would substantiate his serious allegations, and was given five days, within which to find and assemble the relevant documents. On the last day of these five days, Hon Mrema dutifully presented the awaited documents.
In the debate that followed his presentation, the House was of the unanimous view that the MP had failed to substantiate his allegations. Thereupon a motion was moved proposing his immediate suspension from Parliament for the remainder of the budget session that was then in progress . The motion was carried ‘nemine contradicente’ (with no one dissenting).
Hon. Mrema subsequently went to the High Court to challenge his suspension, wherein he filed an application for stay of execution of the resolution suspending him, in Misc. Civil Application no 36 of 1998). However, after a prolonged hearing, his application was dismissed. In dismissing the Application, Judge Katiti said:- “In obedience to article 100 (1) of the Constitution of the United Republic, I hereby declare that this court has no jurisdiction to hear this petition, and therefore the Application is un-maintainable . Hence, I dare not, by illegal force, break into the Parliamentary castle” (to be continued next week).
piomsekwa@gmail.com/0754767576.
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