IT may be remembered that ‘The aftermath of former Speaker Ndugai’s resignation’, was the main focus of my presentation in this column on 13th January, 2022.
However after that article was published, I continued receiving inquiries about some other aspects of this matter, which, because of space restrictions, had not been covered in the said presentation.
In particular, regarding the position of the Deputy Speaker, who has joined the race for the election of the next Speaker; whereby some people are suggesting that she “must first resign from her position as Deputy Speaker, in order to contest the Speakership; and even quoting article 84 (2) of the Constitution of the United Republic of Tanzania to support their contention.
I will, in today’s article, attempt to clarify that particular issue, by relying on what I know was ‘the intention of the Constitution – makers’ in respect thereof, and in connection therewith; as I was an active participant in the task of making the current Constitution.
The application of the concept of ‘the intention of the Legislature’, is fairly common practice in the courts of law; when the Judge finds that the wording of the law whose breach is under investigation is not sufficiently clear. He therefore seeks to establish what was ‘the intention of the Legislature’ in enacting that law; which suggests that ‘the intention of the constitution – makers’ is also a matter of crucial importance, in any discussion on the constitutional provisions.
Regarding Article 84 (2).
This article reads as follows:- ‘Waziri, Naibu Waziri au mtu mwenye madaraka ya aina nyingine yatakayotajwa na sheria iliyotungwa na Bunge kwa madhumuni ya Ibara hii, hataweza kuchaguliwa kuwa Spika’. The operative words are: ‘mwenye madaraka ya aina nyingine yatakayotajwa na sheria iliyotungwa na Bunge kwa madhumini ya Ibara hii’.
I stand to be corrected, but to the best of my knowledge and understanding, there is no such law which has been enacted by Bunge. The usual practice has been to identify the laws which are enacted by our Parliament by giving them serial numbers relating to the year in which they were enacted. Thus, for example, we have Acts no. 1, 2, 3, etc; of 2021; and the same for all the previous years. I therefore challenge all those who rely on that constitutional provision, to produce their evidence on this; and I will humbly beg to be forgiven for my ‘ignorance in bliss’ of that fact.
But , in the absence of such evidence, I maintain that the Deputy Speaker is absolutely free to join the race for the Speakership, without the encumbrance of “having to first resign” from that position.
The circumstances under which the Deputy Speaker is obliged to vacate office, are listed in article 85 (4); as follows:- “Naibu Spika atakoma kuwa Naibu Spika, na ataacha kiti cha Naibu Spika, litokeapo lolote kati ya mambo yafuatayo:- (a) Ikiwa mtu huyo atakoma kuwa Mbunge (b) Ikiwa litatokea jambo lolote ambalo, kama asingekuwa Naibu Spika, ingemfanya asiwe na sifa za kuchaguliwa kuwa Naibu Spika; (c ) Ikiwa mtu huyo ataondolewa kwenye madaraka ya Naibu Spika kwa Azimio la Bunge.
As can be seen, seeking election to the Speakership is not among the circumstances listed in the said article of the Constitution. That view is therefore a ‘misconception’, which means ‘a belief, or idea, which is not based on correct information’. The view that the Deputy Speaker must resign before she can contest for the Speaker’s position, is just a misconception, and should therefore be ignored.
Who will preside over the proceedings?
This is the other question that is puzzling some people, in the aftermath of former Speaker Ndugai’s resignation. The puzzle appears to be based on the misconceived view, that ‘because the Deputy Speaker is a candidate for election to the Speakership, she is barred from presiding over the proceedings’ . This is absolutely wrong.
There could possibly be a slight confusion here, regarding which Bunge sitting we are talking about.
I am here referring to the first Bunge sitting, which will be held on 1st February, 2022; as has already been announced by Katibu wa Bunge.
This sitting will not elect the next Speaker. That will be done later at another sitting, when the nomination process by all participating political parties has been completed.
As has already been explained above, this first Bunge sitting will only receive former Speaker Ndugai’s resignation letter; and that is precisely the moment when the Speaker’s seat will become vacant. Hence the Bunge will have to be adjourned immediately thereafter.
It should therefore be noted, that the Deputy Speaker is not an election candidate yet, simply because the nomination process for such candidates has not yet been completed; since only CCM have completed their internal process.
But the other political parties must also be given the same opportunity to process their nominations, if they want to participate in this election.
It has been normal practice, amounting to a convention, for the first Bunge sitting after any adjournment to be presided over by the Speaker himself. But since it is already common knowledge that Ndugai has already submitted his letter of resignation, he obviously cannot carry out the duties functions of the Speaker. It is therefore expected that, in the light of the said convention, the Deputy Speaker will preside over the proceedings of this first sitting .
However, ‘conventions’, just like ‘guidelines’, are not legally binding. Thus, in view of the misconceived prevailing perception that the Deputy Speaker is already a candidate for election to the Speakership; she may opt to leave this task to one of the “Presiding Members”, known in Kiswahili as “Wenyeviti wa Bunge”.
The new Speaker’s election sitting.
The actual day for this sitting will have to be arranged by the relevant Bunge Authorities; and, if the Deputy Speaker will have been finally nominated by her political party as its candidate for this election; then that sitting will have to be presided over by Mwenyekiti wa Bunge”.
This is different from the election Bunge sittings which are held after a general election , for which Bunge has to elect one of their members to preside over the proceedings. This is so just because the House is completely new, and has not yet elected any of its regular Presiding Officials.
Regarding the CCM nomination process.
Inquiries have been also raised regarding its ongoing process of nominating its candidate for the next Speaker’s election following Ndugai’s resignation; and specifically regarding whether it affects the Deputy Speaker, who has also joined he election race by submitting her “request to be considered” forms to her party CCM.
As we have already noted above, questions have been raised regarding whether she can validly become such candidate, without first resigning from her position as Deputy Speaker; and also whether, being such candidate, she can legally preside over the proceedings of the forthcoming Bunge session. The omnibus answer to all these questions, is that, according to the country’s constitution, the Speaker’s seat, is not yet vacant; as is amply clarified in the paragraphs which follow below.
The relevant provisions of the Constitution.
Article 149 (1) of the Constitution of the United Republic of Tanzania, 1977; provides as follows:- “ Mtu yeyote mwenye dhamana yoyote iliyoannzishwa na Katiba hii, aweza kujiuzulu kwa kutoa taarifa iliyoandikwa na kutiwa saini kwa mkono wake, kwa kufuata masharti yafuatayo:-
(a) Iwapo mtu huyo alichaguliwa na kikao cha watu, basi taarifa hiyo ya kujiuzulu, ataiwasilisha kwenye kikao hicho kilichomchagua”
( c) Iwapo mtu huyo ni Spika au Naibu Spika, basi taarifa hiyo ya kujiuzulu ataiwasilisha kwenye Bunge”
Article 149 (2): Mtu aliyetoa taarifa ya kujiuzulu kwa mujibu wa masharti ya Ibara ndogo ya (1) ya Ibara hii, atahesabiwa kuwa amejiuzulu tangu siku ile ambayo taarifa yake ya kujiuzulu itakapopokelewa na kikao kinachohusika”.
These provisions are absolutely clear and unambiguous. What this means is that the CCM nomination process has no relationship whatsoever with the constitutional Bunge proceedings. With regard to Bunge; that process can only start at the point when the Speaker’s resignation letter is presented to the Bunge at the time when it is in session; and in the instant case, at its first sitting on February 1st, 2022. Hence, as far as Bunge is concerned, it is just “business as usual”, until that date.
Which also means that the Deputy Speaker legally continues holding that position.
The CCM nomination process is of course perfectly in order, and lawful; since Ndugai’s letter was mistakenly addressed to the CCM Secretary General (a non-fatal mistake which does not invalidate the entire process). Thus, CCM was totally right in commencing their nomination process.
The only procedural deficiency lies in the fact that the other political parties were not similarly informed of the occurrence of this vacancy, so that they too could embark on their respective nomination processes; if they so wish.
But this minor mistake is again curable. It only requires Katibu wa Bunge to formally inform the other political parties of the existence of this vacancy in the Speakership; so that those who wish to participate in this election, may also submit their nominations.
These are some of the requirements that must fulfilled in any properly functioning multi-party Parliament.
It should therefore be noted, that it is only after the Speaker’s position has become constitutionally vacant, that Katibu wa Bunge can start the process of preparing for the new Speaker’s election; by going back to her office to call for candidate nominations from the other political parties; plus setting the date for the Bunge sitting which will conduct the election of the new Speaker, after due consultation with the other relevant Authorities.
The ‘modus operandi’ of the multi-party Parliament.
All multi-party Parliaments, actually operate on the basis of the “rules of competition”, that is to say, competition between the ruling party and the parties that occupy the opposition Benches inside Parliament. Hence, because of the composition of our current Parliament, in which the ruling party has an overwhelming majority, there is no doubt that the next Speaker will be elected from among the CCM candidates. Hence, this should not come as a surprise at all to anyone.
Furthermore, considering the fact that the only other Speaker’s resignation event occurred close to thirty years ago in 1994; thus there is currently a whole new generation of people, including officials, who understandably do not know exactly what should be done in such circumstances.
Hence, this presentation will hopefully help this young generation of officials to enhance, or update, their knowledge, as well as the application, of these particular provisions of of our country’s constitution ; as well as the intentions of the constitution-makers in making these provisions.
The good or bad fortune of a nation.
In the book titled “The British Constitution”; there is a quotation which is attributed to one Georges Bidault, who reportedly said the following:-- ”the good or bad fortune of a nation depends on three factors: its Constitution; the way that constitution is made to work; and the respect it inspires”. Well, that is precisely the way our constitution is made to work; and that is why it inspires confidence, in all men and women of goodwill.
piomsekwa@gmail.com / 0754767576
