Wednesday, August 21

CONCERNING THE RECENT HIGH COURT JUDGEMENT, WHICH NULLIFIED CERTAIN SPECIFIED SECTIONS OF THE ELECTIONS LAW

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          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.             

Image result for PHOTOS OF PIUS MSEKWA          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.

Source: Daily News and Cde Msekwa Himself.

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