The wrong way of preventing bad Bill from becoming law

A FRONT-PAGE headline of a news item which was published on page 2 of THE CITIZ EN of last Thursday, July 4, 2019, read: “CSOs appeal to President Magufuli not to assent to contentious law.”

The said item reads as follows: “Civil Society Organizations (CSOs) have appealed to President John Magufuli, NOT to sign into law a contentious Bill they say could paralyze their operations.

They claimed that once enacted, the written Laws (Miscellaneous Amendments) Bill no. 3 of 2019), “may force dozens of non-state, local and regional organizations to wind up their activities”.

It continues thus: “The CSOs said this yesterday, at a hastily convened meeting in Arusha, that took stock of the controversial law”.

It further said that “the changes would not only effectively kill or reduce the critical role of the civil society sector, but would also curtail the citizens’ rights to the freedoms of expression and peaceful assembly”.

As we stated above in the heading of this article, such attempts to put pressure on the Head of State to ‘withhold his assent’ to a Bill which has been properly passed by the National Assembly, is not only unorthodox, but is also unethical.

And, in fact, as we will explain a little later, no sane President will ever listen to any such misconceived requests, for fear of the negative consequences that will follow from such imprudent action on his part.

Th is may b e d u e to lac k of k nowled ge or awareness. Presumably, such unorthodox and unethical attempts to put pressure on the President, asking him to handle ‘the forbidden fruit”, are the result of an unfortunate lack of knowledge, or awareness, of the Parliamentary complexities that are involved in such matters.

This is understandable, because lots of other people in many other countries also share this problem, as evidenced by a book which was published in London as a useful ‘guide’ for new Members of the British House of Commons, The book is titled: “Member of Parliament: The job of a backbencher (Macmillan Press, London 1990); which carries the following statement: “In the days immediately following a general election, the Palace of Westminster is full of earnest men and women.

They are the newly elected Members of Parliament and for many among them, the job which they have just been elected to do is something of a mystery”.

This statement is also applicable to almost all newly elected MPs of many other Parliaments elsewhere in the world, including Tanzania.

This is so because the Rules of procedure inside Parliament, as well as the other Conventions and processes which must be observed, will, obviously, be completely new and unfamiliar to them.

Inevitably, this also applies to all other stakeholders, like our CSOs who are putting pressure on President Magufuli to do what, in fact, is ‘forbidden fruit’ which cannot be handled.

Hence, a little exposure to this kind of knowledge may be helpful to such stake holders, as it will presumably save them from making requests which cannot be granted.

And that, is the primary purpose of today’s article; namely, to introduce our interested readers to this specialist world of ‘parliamentary affairs’ knowledge. Why th e Presid ent c annot with h old h is assent.

In the Parliamentary system of Government, there are two basic, cogent and compelling reasons which prevent the President from withholding his assent to a Bill which has been properly passed by the National Assembly.

They are the following:- (i) the dreadful consequences arising from such imprudent action. It is imprudent because it will immediately activate the nasty, conflict-laden process which is envisaged under article 97 (2) to (4) of the Constitution of the U nited Republic; which provides as follows (paraphrased from Kiswahili): “97(2). Where a Bill has been presented to the President for his assent, he will have the option of either assenting to it, or withholding his assent. But in case he opts to withhold his assent, he will be obliged to return the Bill to the National Assembly, with a full statement of his reasons for withholding his assent thereto. 97(3).

A Bill which has been so returned to the National Assembly, shall not be resubmitted to the President seeking his assent within a period of six months, unless, during that restricted period, the National Assembly will have again passed the same Bill, but this time with a two-thirds majority of all its Members. 97(4).

In the event of that actually happening, and the Bill is accordingly re-submitted to the President for his assent, then the President shall be required to give his assent to the said Bill within twenty- one days of his receiving it.

Failure of which will oblige him to dissolve Parliament, in order to facilitate the holding of a new general election”.

As can be seen, these are Constitutional provisions which, literally, force the President to take the measures stated therein; but which are so conspicuously conflictladen that they should best be avoided for the sustenance of peace and tranquility, plus the smooth political management of the country’s affairs.

Such processes will, inevitably, create unnecessary tension between the President and the Legislature, the two most powerful organs in the country’s governance system. (ii) Obedience to Parliamentary Conventions.

Sophocles, that 18th century B.C. Greek Dramatist; is on record as having said that: “nobody has a more sacred obligation to obey the law, than those who make the law”.

In the instant case, there is one important Rule that our law makers must obey, which is the old parliamentary Convention which states that “the Government is collectively accountable to Parliament”.

And “the Government” in this context, is defined in Chapter TWO of the country’s Constitution, as consisting of “the President, the V ice President, the Prime Minister and the Ministers (Baraza la Mawaziri).

All these officials are therefore under a ‘sacred’ obligation “to stand together or fall together”, in their defence of any government business that is routinely brought to the National Assembly for approval. In other words, the President cannot willingly escape from this obligation, by refusing to give assent to a Government Bill!

He must “stand together, or fall together” with the rest of his colleagues in the Government. And, indeed, they could ‘fall together’ in the (unlikely) event of Parliament’s dissolution, if it eventually comes to that!

Another important factor which should be noted, is that the Bill under discussion was a Government Bill. In which case, the Convention relating to the Government’s collective responsibility becomes fully applicable; thus effectively preventing the President from taking any such unilateral action of withholding his assent to a Government Bill, in arrogant defiance of that convention!

Th ere are acc ep tab l e, l egal meth od s of p rev enting a b ad Bill from b ec oming l aw. There is actually NO need for stake holders to resort to such unorthodox and unethical methods of trying to prevent what they consider to be a bad Bill from becoming law, since our parliamentary system has put in place certain clear, user-friendly, legal (and therefore acceptable) opportunities for doing that.

The first such opportunity is presented at the stage when a given Bill is under consideration by the relevant Standing Committee of the National Assembly.

This is when the stake holders, plus any other interested persons, are given the opportunity to appear before the Committee to present their views or opinions regarding the contents of the relevant Bill.

In parliamentary language, this is known as the “Public hearing stage”; which was first introduced during the year 2000, at the time when I was the Speaker of the National Assembly.

The merits of this procedure have since been confirmed, especially when, in June 2015, the Media stake holders successfully made use of it to achieve postponement of consideration by the National Assembly of two Government Bills: the “Access to information Bill” and the “Media Services Bill”; which were postponed pending further consultations regarding their apparently contentious provisions.

The second opportunity is provided for in the Rules of the National Assembly, which permit what is known as “lobbying of the Members” of the National Assembly by stake holders, seeking to influence them to reject what they consider to be a bad Bill. This is a perfectly lawful method, provided that it is not misused through corruption.

But in addition, there is also a third opportunity, in cases where the two methods described above have failed to produce the desired results, as was the case regarding the Bill under discussion.

That method is to petition the courts of justice. It means that in cases where all such attempts have failed and the disputed Bill has been passed by the National Assembly and enacted into law by Presidential assent; the only remaining legal method of challenging such a law is to petition the court of competent jurisdiction, seeking to have that law, or specified parts of it, invalidated.

But that will succeed only if the petitioners can marshal sufficient credible evidence, to prove that the said law actually violates a specified provision of the country’s Constitution.

This presentation is, basically, an endeavour to show that what the stake holders in the instant case are attempting to do, namely, to request the President to withhold his assent to “The Written Laws (Miscellaneous Amendments Bill (no. 3 of 2019); is a total “non-starter”, i.e. something which has no chance whatsoever of being successful, additionally because of their flawed argument. Th eir argu ment ap p ears to b e flawed .

There appears to be a fatal flaw in their argument. The relevant stake holder CSOs are reported to base their argument on the conjecture that the new law “will not only effectively kill or reduce the critical role of the civil society sector , but would also curtail the citizens’ right to freedoms of expression and peaceful assembly”.

(THE CITIZEN, 4th July, 2019). This, quite obviously, is mere conjecture regarding the possibility of this law being abused.

However, there is the authority of the High Court judgment in the case of Rev Christopher Mtikila vs Attorney General (1995) T.L.R 31, which, in part, reads as follows : “The constitutionality of a statute is not found in what could happen in its operations, but in what is actually provided for.

The mere possibility of a statutory provision being abused in actual operation will not make it invalid”. Thus, mere conjectures, “will not invalidate” the relevant law.

There is another unacceptable method which has been attempted in the past by some stake holders, in their vein attempts to prevent a ‘bad bill’ from becoming law.

That was the attempt to prevent such a Bill from being introduced in the House. It should be noted that any such attempt, (other than by lobbying and persuading the relevant Parliamentary Committee to agree to do so), is equally unorthodox and unacceptable; for it could amount to an offence under the Parliamentary Immunity, Powers and Privileges Act.

Stake holders are therefore strongly advised, to also avoid taking that route.

piomsekwa@ gmail. c om 07 5 4 7 6 7 5 7 6

Author: Pius Msekwa

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