The events pertaining to former Speaker Job Ndugai’s resignation, and the process leading to Speaker Tulia Ackson’s election to that position; were altogether an entirely new experience to many of our people. This is because the last time such events occurred in our jurisdiction was in 1994, nearly thirty long years ago. Hence, understandably, these “novel” events stimulated some animated discussions among the interested members of the public; and I was asked several times by the media to comment on, or clarify, some of the issues involved in connection therewith, particularly those relating to the Speaker’s “meagre” election qualifications, and his/her leadership roles. And I responded by doing the needful, in several articles published in this column.
However, because of limited editorial space allocations, I could not cover some of the more important aspects; such as the question of the “Speaker’s burdens”; which include that of “defending Parliament’s decisions”. I have thus decided to make that issue the subject of today’s article.
The relevant background.
The British Parliament, the House of Commons, still maintains a tradition, which started at a time in its history, when the relations between Parliament and the Monarch were toxic, and extremely antagonistic. Thus, because the Speaker had the duty of conveying certain Parliamentary resolutions to the Monarch, an irate King, who was opposed to such resolutions, could demonstrate his anger by ordering the Speaker’s punishment, for the ‘crime’ of bringing such ‘treasonable ‘ messages to him. Hence, in view of that lingering danger, there developed a tradition for the person who was elected to the position of Speaker, to make a token show of reluctance in accepting that office, as a demonstration of fear for the consequences involved; whereby every newly elected Speaker of the House of commons had to be literally ‘dragged’ to the Speaker’s Chair, in a mock little ceremony.
However, because of limited editorial space allocations, I could not cover some of the more important aspects; such as the question of the “Speaker’s burdens”; which include that of “defending Parliament’s decisions”. I have thus decided to make that issue the subject of today’s article.
The relevant background.
The British Parliament, the House of Commons, still maintains a tradition, which started at a time in its history, when the relations between Parliament and the Monarch were toxic, and extremely antagonistic. Thus, because the Speaker had the duty of conveying certain Parliamentary resolutions to the Monarch, an irate King, who was opposed to such resolutions, could demonstrate his anger by ordering the Speaker’s punishment, for the ‘crime’ of bringing such ‘treasonable ‘ messages to him. Hence, in view of that lingering danger, there developed a tradition for the person who was elected to the position of Speaker, to make a token show of reluctance in accepting that office, as a demonstration of fear for the consequences involved; whereby every newly elected Speaker of the House of commons had to be literally ‘dragged’ to the Speaker’s Chair, in a mock little ceremony.
This ‘dangerous’ role of the Speaker is what I have referred to in the heading of this article, as the “unsung Speaker’s Burden”. In this context, the word “burden” means ‘responsibility that causes worry, or difficulty”. Thus, in pursuance of that responsibility, in February 2004, I published an article titled “In the defense of our Parliament” ; which was published simultaneously in two local English language newspapers, the Daily News, and The African, on 26th February, 2002, commenting on a judgment by the Court of Appeal of Tanzania, in the case of Julius Ishengoma Francis Ndyanabo vs Attorney General; delivered in Dar es Salaam on 14th February, 2002; in which the court held that: “Parliament exceeded its powers by enacting the unconstitutional provision”.
This is precisely the point which prompted me, as the Speaker, to defend Parliament’s decision in that regard. But surprisingly, that article raised a ‘hue and cry’ from some obviously uninformed gentlemen members of the media. One Kiswahili newspaper carried a front page headline with the malicious wording:‘MSEKWA AWASHAMBULIA MAJAJI”, which was a deliberate and mischievous misrepresentation of the facts.
This is precisely the point which prompted me, as the Speaker, to defend Parliament’s decision in that regard. But surprisingly, that article raised a ‘hue and cry’ from some obviously uninformed gentlemen members of the media. One Kiswahili newspaper carried a front page headline with the malicious wording:‘MSEKWA AWASHAMBULIA MAJAJI”, which was a deliberate and mischievous misrepresentation of the facts.
And another attack came from the Tanganyika Law Society , which responded (like the irate King in the story of the British tradition narrated above), by publishing its own misconceived statement, describing my article as an ‘assault on the Judiciary’, and falsely attributed to me certain words that I had not said in my article! For example, they falsely claimed that I “had challenged the decision of the Court of Appeal”; when, in fact, I had stated clearly therein, that “the offending provision is surely dead and buried”.
They also falsely claimed that I had “challenged the power of the court to make that decision”; when, in fact, I had fully acknowledged the power of the courts of competent jurisdiction to make such decisions, by quoting the 1984 constitutional amendments which gave them that power. As the incumbent Speaker at the material time, I was only carrying out my responsibility of defending Parliament’s decisions.
They also falsely claimed that I had “challenged the power of the court to make that decision”; when, in fact, I had fully acknowledged the power of the courts of competent jurisdiction to make such decisions, by quoting the 1984 constitutional amendments which gave them that power. As the incumbent Speaker at the material time, I was only carrying out my responsibility of defending Parliament’s decisions.
This is what I said: -Basically, I raised the following three “points of order” in that submission. One, that Parliament did not exceed its powers in enacting that legislation. In support of that assertion, I made reference to the High Court judgment in the case of Rev Mtikila vs Attorney General, (TRL 31); in which the High Court of Tanzania magnanimously acknowledged the wide extent of parliaments legislative powers, even in respect of the Constitution itself. The High court had held that “our Constitution confers on Parliament very wide powers of amendment; but they are by no means unlimited. These powers are to be found in article 98 (1) and (2). They are evidently wide, for in the first place, Parliament has power to amend even those provisions providing for basic human rights.
Secondly, that power is not confined to a small sphere. It extends to modification of those provisions; their suspension or repeal and replacement; or re-enactment or modification in the application thereof”
Two, an admission that the inherited British concept had been substantially been modified and qualified by article 64 (1) of our Constitution, which confines Parliament’s legislative powers only to matters that are specifically stated therein.
Three, that this court had unfairly ignored the Latimer House Guidelines for the Commonwealth” on ‘the relationship between Parliament and the Judiciary’; which provides that “the legislative function is primarily the responsibility of Parliament, as the elected body representing the people. Judges may be constructive and purposive in the interpretation of legislation but must not usurp Parliament’s legislative function.
Secondly, that power is not confined to a small sphere. It extends to modification of those provisions; their suspension or repeal and replacement; or re-enactment or modification in the application thereof”
Two, an admission that the inherited British concept had been substantially been modified and qualified by article 64 (1) of our Constitution, which confines Parliament’s legislative powers only to matters that are specifically stated therein.
Three, that this court had unfairly ignored the Latimer House Guidelines for the Commonwealth” on ‘the relationship between Parliament and the Judiciary’; which provides that “the legislative function is primarily the responsibility of Parliament, as the elected body representing the people. Judges may be constructive and purposive in the interpretation of legislation but must not usurp Parliament’s legislative function.
Courts have the power to declare legislation to be unconstitutional, However, the appropriate remedy should be for the court to declare the incompatibility of a status with the Constitution, leaving it to the Legislature to take remedial legislative measures”.
Four, that this court had also unfairly ignored the “intention of the Legislature” in enacting this legislation; which was ,firstly, to avoid vexatious or frivolous petitions; and secondly, to ensure that the respondents in election petitions are protected in terms of costs which they are forced to incur in defending their cases. But alas, in spite of these cogent arguments, I became the victim of attack by the said “irate Kings”.
Four, that this court had also unfairly ignored the “intention of the Legislature” in enacting this legislation; which was ,firstly, to avoid vexatious or frivolous petitions; and secondly, to ensure that the respondents in election petitions are protected in terms of costs which they are forced to incur in defending their cases. But alas, in spite of these cogent arguments, I became the victim of attack by the said “irate Kings”.
An abbreviated version of that article.
“On 14th February, 2002; the Court of Appeal of Tanzania delivered its judgment in the appeal case of Julius Ishengoma Francis Ndyanabo vs Attorney General; in which the court held that section 112 (2) of the Elections Act, 1985 (which requires a deposit of shillings five million to be made by a petitioner in an election petition, in order for his petition to proceed to hearing), was unconstitutional., and was consequently struck out of the statute book. But the Court of Appeal held further, that “Parliament had exceeded its legislative competence is limited to making laws which are consistent with the Constitution”.
The question of Parliament exceeding its legislative powers.
Article 64 (1) of the Constitution of the United Republic of Tanzania, 1977; provides that: “Legislative power in relation to all Union matters, and also in relation to all other maters which are not Union matters concerning Mainland Tanzania, is hereby vested in Parliament”. As in many other cases, this provision was inherited from the then British concept, that “the legislative authority of Parliament over all matters and persons within its jurisdiction is unlimited. A law might be unjust or contrary to sound principles of governance, but when it erred, its errors could only be corrected by itself”.
However, new developments that took place in the twentieth century, led Parliament to accept that its unlimited legislative powers should be qualified. But, perhaps unwittingly, the previous British concept of Parliament’s legislative supremacy was transferred to Tanganyika in its totality at the time of the country’s independence, through its inclusion in both the Independence and Republican Constitutions of 1961 and 1962 respectively; and is reflected in Mwalimu Nyerere’s in the House on 28th June, 1962 when he said the following:- “This Parliament can make any law. For example, it has power to pass a law, which provides that no one in Tanganyika should have the right to vote, except bachelors and polygamists. They have the constitutional power to do so; but our MPs will certainly not do that; simply because they are not insane. There is a distinction between the availability of given powers, and the practical use of such powers”. The Latimer House Guidelines.
These Guidelines were drawn up and approved at a meeting of Representatives of the Commonwealth Parliamentary Association; the Commonwealth Magistrates’ and Judges’ Association; the Commonwealth Lawyers’ Association; and the Commonwealth Legal Education Association; which was held at Latimer House in the United Kingdom, from 15th to 19th June, 1998; which adopted the resolution that was quoted above; which requires the courts, in the relevant cases, “to declare the incompatibility of a statute, leaving it to Parliament to take the remedial legislative measures”.
And in the case of Tanzania, this guideline was actually implemented through the constitutional amendments which were made in 1994 to by article 30 (5) of the Constitution of the United Republic; which prescribe the procedure to be followed where the court of competent jurisdiction considers that Parliament enacted legislation which is in conflict with the Constitution, aa follows:- “Where, in any proceedings it is alleged that any law enacted abrogates or abridges any of the basic rights set out in this Constitution, the court is satisfied that the law, to the extent that it is in conflict with the Constitution then, instead of declaring that such law is void, shall have power to afford the authority concerned a opportunity to rectify the defect, within such period and in such manner as the Court shall determine”. That is when I posed the question: why did the noble court of Appeal fail, or perhaps refuse, to adopt this procedure, which is prescribed by the Constitution itself?
It is worth noting, that in creating the said guidelines, the Latima House meeting also emphasized that “the successful implementation of these guidelines calls for a commitment made in the utmost good faith of the relevant national institutions, in particular the Executive, the Parliament, and the Judiciary”. In our case, both the Executive and the Parliament had done the needful in introducing the constitutional amendments referred to above.
“On 14th February, 2002; the Court of Appeal of Tanzania delivered its judgment in the appeal case of Julius Ishengoma Francis Ndyanabo vs Attorney General; in which the court held that section 112 (2) of the Elections Act, 1985 (which requires a deposit of shillings five million to be made by a petitioner in an election petition, in order for his petition to proceed to hearing), was unconstitutional., and was consequently struck out of the statute book. But the Court of Appeal held further, that “Parliament had exceeded its legislative competence is limited to making laws which are consistent with the Constitution”.
The question of Parliament exceeding its legislative powers.
Article 64 (1) of the Constitution of the United Republic of Tanzania, 1977; provides that: “Legislative power in relation to all Union matters, and also in relation to all other maters which are not Union matters concerning Mainland Tanzania, is hereby vested in Parliament”. As in many other cases, this provision was inherited from the then British concept, that “the legislative authority of Parliament over all matters and persons within its jurisdiction is unlimited. A law might be unjust or contrary to sound principles of governance, but when it erred, its errors could only be corrected by itself”.
However, new developments that took place in the twentieth century, led Parliament to accept that its unlimited legislative powers should be qualified. But, perhaps unwittingly, the previous British concept of Parliament’s legislative supremacy was transferred to Tanganyika in its totality at the time of the country’s independence, through its inclusion in both the Independence and Republican Constitutions of 1961 and 1962 respectively; and is reflected in Mwalimu Nyerere’s in the House on 28th June, 1962 when he said the following:- “This Parliament can make any law. For example, it has power to pass a law, which provides that no one in Tanganyika should have the right to vote, except bachelors and polygamists. They have the constitutional power to do so; but our MPs will certainly not do that; simply because they are not insane. There is a distinction between the availability of given powers, and the practical use of such powers”. The Latimer House Guidelines.
These Guidelines were drawn up and approved at a meeting of Representatives of the Commonwealth Parliamentary Association; the Commonwealth Magistrates’ and Judges’ Association; the Commonwealth Lawyers’ Association; and the Commonwealth Legal Education Association; which was held at Latimer House in the United Kingdom, from 15th to 19th June, 1998; which adopted the resolution that was quoted above; which requires the courts, in the relevant cases, “to declare the incompatibility of a statute, leaving it to Parliament to take the remedial legislative measures”.
And in the case of Tanzania, this guideline was actually implemented through the constitutional amendments which were made in 1994 to by article 30 (5) of the Constitution of the United Republic; which prescribe the procedure to be followed where the court of competent jurisdiction considers that Parliament enacted legislation which is in conflict with the Constitution, aa follows:- “Where, in any proceedings it is alleged that any law enacted abrogates or abridges any of the basic rights set out in this Constitution, the court is satisfied that the law, to the extent that it is in conflict with the Constitution then, instead of declaring that such law is void, shall have power to afford the authority concerned a opportunity to rectify the defect, within such period and in such manner as the Court shall determine”. That is when I posed the question: why did the noble court of Appeal fail, or perhaps refuse, to adopt this procedure, which is prescribed by the Constitution itself?
It is worth noting, that in creating the said guidelines, the Latima House meeting also emphasized that “the successful implementation of these guidelines calls for a commitment made in the utmost good faith of the relevant national institutions, in particular the Executive, the Parliament, and the Judiciary”. In our case, both the Executive and the Parliament had done the needful in introducing the constitutional amendments referred to above.
The decision by the court of Appeal to ignore these guidelines, provides a temptation for people to assume that perhaps it was lacking in its “commitment to the utmost good faith” that is required for the proper implementation of these guidelines! And I concluded with a humble admission, that this article “was a purely intellectual exercise, for it is clearly of no effect with regard to the Court of Appeal’s decision.
The full story, that is to say, the court of Appeal’s judgment; my published article commenting on that judgment; the Tanzania Law Society’s misconceived statement; and my rejoinder to that Statement; are all available in my book titled “The story of the Tanzania Parliament” (Nyambari Nyangwine Publishers, Dar es Salaam, 2012).
The Speaker is not only the Presiding Officer over the business of the House; he/she is also its spokesperson, and guardian of its privileges. This story hopefully helps to ‘bring to light’ the little known (unsung) Speaker’s burden of having to defend Parliament’s decisions in a hostile environment.
piomsekwa@gmail.co /0754767576.
The full story, that is to say, the court of Appeal’s judgment; my published article commenting on that judgment; the Tanzania Law Society’s misconceived statement; and my rejoinder to that Statement; are all available in my book titled “The story of the Tanzania Parliament” (Nyambari Nyangwine Publishers, Dar es Salaam, 2012).
The Speaker is not only the Presiding Officer over the business of the House; he/she is also its spokesperson, and guardian of its privileges. This story hopefully helps to ‘bring to light’ the little known (unsung) Speaker’s burden of having to defend Parliament’s decisions in a hostile environment.
piomsekwa@gmail.co /0754767576.
Source: Daily News tomorrow.
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