Obadia Kajungu
Member
- Jul 8, 2015
- 31
- 39
A Review of H. L. A. Hart’s Concept of Hard Cases.
(Jurisprudence Revisited)
THIS Article, although it might strongly seem biased to those politically motivated readers, tends to give insights of law review of socio-legal, political and administrative incidences of the means through which the CHADEMA special seats -women were nominated and eventually being sworn in as members of Parliament following the year 2020 General Elections results for purposes of academic critical legal theory reasoning.
By
Obadia Kajungu, Esq.
+255 756 145 390
obbidee4tz@gmail.com
1. Abstract
“in hard cases, judges only constantly talk about
the answer they already knew in advance”
‘Hard Cases’ may be explained to mean Herbert L. A. Hart’s general name given to issues of law where facts are not fitting the existing statutes or precedents thus rendering decision makers to be generally surrounded by discretion as to who or against whom should benefit the decision.
This Hart’s legal concept has faced serious criticism including Professor Ronald Dworkin but, nevertheless at the end of the day Hart’s concept has remained invincible to the extent that modern philosophers of law are divided in this respect whereas Prof. Ronald Dworkin although has come out with his convincing “single answer model” other philosophers, positivists, critical legal studies scholars and legal realists have stagnated to “no single answer model” on the ground that “the legal doctrines are always indeterminate.”
2. Author’s Forewords
When I was in the university taking my undergraduate studies I used to be imagining the possibility of applicability of those legal theories and concepts we were being taught by professors into our daily practical social and occupational life. I have worked in the government organizations for the period indeterminable and therefore fetched a broad spectrum of experience to the extent of understanding the nature of governments and their relationships with citizens. I came to realize Julius Stone’s words that the challenges of our profession are the processes of bringing legal practice to our everyday life for creating legal theories drawn from the experience of our own society or to bring legal theories which we studied in schools but which were drawn from the experience of exotic societies to our everyday life for legal practice at home.
I came at some time to strongly hate actions of universities which in some cases required at least three years working experience as a condition precedent so as to join for master’s degree but which I came to realize later that experience matters in advanced academics rather than analytical conceptual works in the level above undergraduate education. The intention was to afford postgraduate students to come with comparisons between what they studied at school and what they saw at work in the field as inputs for master’s education armed with their own inferences. I realized further that this was also intended to afford such students to be creative in the sense that they could make theories out of their own experience and to see whether they can apply theories they studied at school which were inferred from exotic societies into their local social life. I was indeed too naïve to comprehend the objects of the then academicians requiring experienced students for advanced university studies until it was, but not too late.
Today, universities do not bother set working experience as a prerequisite for a student to qualify for master’s education enrollment presumably due to lack of employments opportunities after degree certificates whereas by proceeding to insist on working experience, such university institutions will be denying many graduates who fell unlucky by missing jobs an opportunity for further studies. I came to understand later that the requirement of working experience was important to enroll postgraduate students with not only high level of intelligence quotient (IQ) but also experience with empirical inputs from the field to test what theories provide.
3. Introduction
In this article it is intended to apply legal theories into practice with view to test and disclose the legitimacy of appointed nineteen (19) special seats - women as Parliamentarians through conflicting administrative decisions made by the Office of Chama cha Demokrasia na Maendeleo (CHADEMA), the Office of the Director of Elections (the Commission) and the Office of the Parliamentary Speaker (the Speaker), under the unprecedented facts whereby, in this respect, our existing Constitution, electoral statutes and judicial precedents were silent with view to coming out with an opinion on the position of the law under the circumstances at the end.
We have experienced in our country, the controversial post election socio-legal political issues of administrative dilemma which left questions than answers in the diverse of ambivalent public opinions.
Following the completion of year 2020 national general elections in our country there was, as a matter of constitutional requirements in every general elections, necessary administrative decisions for national administrative and political systems restructuring.
This being the case, there arose some misunderstandings between CHADEMA, the Commission and the Speaker which in principle was year 2020 post election results discontent on the allegations that there was no free and fair elections due to alleged poll rigging whereas opposition parties being led by CHADEMA blamed the Commission that it condoned the poll rigging alleged to had been made by Chama Cha Mapinduzi (CCM).
4. Facts
After the year 2020 Tanzania’s general elections, CCM rose to scoop majority polls of 92% followed by CHADEMA which scored 5% and the rest of political parties scoring 3% of general polls.
Oppositions were not satisfied by the elections results which were announced by the Commission. CHADEMA, having won 5% of general elections votes was, pursuant to Articles 66 and 78 of the Constitution of the United Republic of Tanzania (the Constitution) and section 86A of the National Elections Act, Cap. 343, qualified to propose names of women candidates to be nominated by the Commission as Parliamentarians special seats – women. Because of being dissatisfied by the elections, CHADEMA opted not to propose the names of women for special seats to the Commission for nomination.
Later on, the Commission basing on the letter purported to had been received from CHADEMA nominated nineteen (19) Ladies from CHADEMA and deployed them to the Speaker who swore in them and eventually they became Parliamentarians notwithstanding.
CHADEMA contended that it never proposed any lady and alleged that the letter of proposition was forged but as of today it is unknown as to who forged the said letter, to wit; whether the Commission forged the letter so that it could fulfill constitutional objectives; or whether the ladies decided so forge and enjoy the constitutional vacancies which CHADEMA refused to give its blessings.
CHADEMA decided to revoke the Ladies’ membership from the party on the grounds among other things of disciplinary misconduct and hypocrisy to the party. The Speaker, notwithstanding that Article 67(1)(b) and 71(1)(e) of the Constitution, where the former Article dictates persons to belong to the Political Party so as to qualify as Parliamentarians while the latter expressly stipulates that the cessation of belonging to any political party disqualifies a person from continuing to be a Parliamentarian, decided to condone these constitutional provisions thus he proceeded to pronounce publicly that the Ladies shall remain Parliamentarians even though their party memberships were revoked.
The validity of these actions ranging from CHADEMA’s refusal of proposing the women all the way long to the Commission’s decision by proceeding to nominate Ladies devoid of the proposition by CHADEMA plus the consequential swearing in by the Speaker and eventually the Speaker’s utterance on his intended retaining as Parliamentarians, the Ladies whose party memberships were revoked under the silent constitutional and statutory provisions to cover this unprecedented event, seem to have their answer in Jurisprudence and Administrative Law.
Having due regard to the parables of events that appeared to turmoil our constitutional continuum in administrative decision makings, I would prefer a review of Hart’s concept of “hard cases” to test as to whether it fits into our local society by giving the answer to the events narrated in the above facts in relation to our constitutional and statutory lacunae in the light of the legality of decisions made by CHADEMA vis-à-vis legality of counter-decisions made by the Commission, the legality of decisions made by the Speaker and eventually the legitimacy of remaining Parliamentarians, the Ladies whose political party memberships were revoked with view to bringing new insights into Tanzania’s legal reasoning.
Before we go deep into advanced laws, I must put it clear to everyone to agree with me that CHADEMA, the Commission and the Speaker are products of the Constitution which are interdependent with view to meeting constitutional objectives for the interests of the nation. I want to mean that these offices have the same and equal constitutional recognition in the sense that every office has its constitutional complementarity in order to meet Tanzanian constitutional goals.
5. The Law
The decision of CHADEMA, by refusing to propose women to the Commission for nomination to be members of Parliament was, in principle, an action of defiance of Article 78(1) of the Constitution which reads as thus:
78.—(1) Kwa madhumuni ya uchaguzi wa Wabunge Wanawake waliotajwa katika ibara ya 66 (1) (b), vyama vya siasa vilivyoshiriki uchaguzi, kwa kufuata utaratibu uliowekwa, vitapendekeza kwa Tume ya Uchaguzi majina ya wanawake kwa kuzingatia masharti ya uwiano wa uwakilishi baina ya vyama vilivyoshinda uchaguzi katika majimbo na kupata viti Bungeni. Tume ya Uchaguzi ikiridhika kuwa mtu yeyote aliyependekezwa anazo sifa za kuwa Mbunge itamtangaza kuwa amechaguliwa kuwa Mbunge, na masharti ya ibara ya 67 ya Katiba hii yatatumika kuhusu kuchaguliwa kwa mtu huyo kuwa Mbunge.
So it is undisputed that CHADEMA, having refused to cooperate with its counterpart constitutional offices perhaps due to its discontent on general elections results while having qualified to propose names of special seats – women after achieving the set constitutional minimum standard of 5%, contravened Article 78(1) of the Constitution as cited above and also was contrary to Section 86A of the Elections Act, Cap. 343; which reads as thus hereunder:
86A- (1) There shall be women special seats in the National Assembly as provided for in Article 66 of the Constitution.
(2) A political party which contests for Parliamentary election held after the dissolution of the National Assembly may propose and submit to the Commission the names of eligible women candidates for nomination to women special seats.
(3) The Commission shall specify a number of women candidates to be nominated by each political party.
(4) The names of women candidates proposed to the Commission shall be in the order of preference.
(5) The provisions of Article 67 of the Constitution shall apply to every woman who is sponsored by a political party.
(6) The Commission shall, subject to articles 66, 67 and 78 of the Constitution and in accordance with the order of preference indicated in the list proposed by each political party, declare such number of women candidates from the respective political parties as Members of Parliament special seats women.
(7) The Commission shall send a notification of the declaration to the Speaker of the National Assembly and Secretary General of the respective political parties.
(8) The list of names of women candidates proposed to the Commission in accordance with article 78(4) of the Constitution by each political party for the General Elections shall, subject to Article 76(3) of the Constitution, be the same list that shall be used by the Commission for purposes of filling any vacancy in the office of Member of Parliament for women special seats during the whole period of the life of Parliament.
The decisions of the Commission and the Speaker by proceeding to nominate and swearing in the Ladies was respectively, assuming that it is proved that the letter of proposition was indeed a forgery thus void to the effect that there was no such a letter at all, therefore, it is undisputed that the said nominations were done by the Commission and subsequent swearing in by the Speaker were in real sense done without the blessings of CHADEMA as required by the Constitution.
Again, the decision of the Speaker to pronounce that the Ladies will remain Parliamentarians notwithstanding the loss of their (Ladies’) party memberships was in fact, in contravention of Article 71(1)(e) of the Constitution.
So long as the actions of both CHADEMA, the Commission and the Speaker were in contravention of the Constitution, therefore there remain two main issues, one being that “whether the actions of the commission and consequential swearing in of the Ladies were lawful regard being heeded to the presumption of lack of letter of proposition by CHADEMA after refuting to had written such a letter”; and the other issue being “whether the Ladies are legally Parliamentarians despite that CHADEMA has revoked their party memberships.”
6. Analysis
“On the one hand, legal doctrine seems indeterminate, but it may be maintained that even in ‘hard cases’, judges only ‘constantly talk about the answer they already knew in advance.”
Legal philosophers are divided in this respect. Dworkin provided a very convincing answer for the ‘single answer’ model, whereas both inclusive and exclusive Positivists and Critical Legal Studies (CLS) and Legal Realists presented plausible to the ‘no single answer’ model.”
In law, there is a distinction between arguments of principle on the one hand and arguments of policy on the other hand. Arguments of principle are arguments that appeal to ideas about fairness and rights. Arguments of policy justify political decision by showing that the decision advances or protects some collective goal of the community as a whole. That is to say the decision making process always is a dual action in the sense that it tends to meet both the principle of law and public policy. In going through this theoretical proposition, eventually everybody shall agree with me and bear in mind that there is no force of law that can be effective without political powers behind to the effect that political objectives are part and parcel of the law.
In applying this principle of law we must consider the object of Tanzania’s constitutional provisions particularly Article 66(1)(b) and 78(b) and the decisions of the Commission and the Speaker as being based on the latent argument of principle but manifested on the argument of policy. Article 66(1)(b) reads:
66.—(1) Bila ya kuathiri masharti mengine ya ibara hii, kutakuwa na aina zifuatazo za Wabunge, yaani— (a) …………………..;
(b) Wabunge wanawake wa idadi inayoongezeka, kuanzia asilimia ishirini ya Wabunge waliotajwa katika aya ya (a), (c) na (d), itakayotajwa mara kwa mara na Tume ya Uchaguzi kwa taarifa itakayochapishwa katika Gazeti la Serikali baada ya kupata kibali cha Rais, watakaochaguliwa na vyama vya siasa vinavyowakilishwa Bungeni, kwa mujibu wa ibara ya 78, na kwa kuzingatia masharti ya uwiano wa uwakilishi baina ya vyama hivyo;
For this reason, within the meaning of Article 66 of the Constitution and Section 86A of the National Elections Act, Cap. 343, we should unanimously agree that the special seats – women are the constitutional vacancies dedicated to the Commission so as to make the political parties not to be complacent but to work hard so as to be granted such seats as a motivation, that is why the law has set a minimum target to the political party as a standard of motivation, of at least 5% to qualify to nominate women to the Commission. In other words, the special seats women are not political party’s vacancy and to insist onto that effect, according to Article 78(1) it is in the discretion of the Commission to or not to nominate the Lady so proposed by the political party to be a Parliamentarian!
Except, at the time the constitution was being amended to include the multiparty democratic system, women were still marginalized in political activities thus a need of nurturing gender matters in Tanzania’s politics, while newly established opposition parties were intended by the constitution to be motivated by setting a minimum standard of achievement of at least 5% as per Article 78 and Section 86A of the National Elections Act, Cap. 343 in order to qualify for award of special seats women as a gift from the Commission.
In order to ascertain this constitutional objective and the intention of parliament behind the necessity of nomination of women special seats –women as parliamentarians, section 89 of the National Elections Act, Cap 343, creates an offence for any person who, in his official capacity resists the exercise of nomination of the woman to contest for nomination for special seats.
The section provides as thus;
89(1) Any person holding any official office or acting in any official capacity who, in the exercise of functions of such office or in such official capacity, makes any statement or does any act with intent to discourage any other person from seeking nomination under this Act or to procure any person who has been nominated to withdraw his candidature, commits an offence and shall, on conviction, be liable to the fine not less than one hundred thousand shillings and not exceeding three hundred thousand shillings or to imprisonment for term not exceeding twelve months or to both.
What does this mean? This means that, the actions of CHADEMA’s officers who, in their official capacity or in the capacity of their offices, fought to discourage the Ladies in their pursuit to be nominated, or dismissing their party memberships so as to disqualify Ladies for their candidature, attracts jail or fine through criminal prosecutions.
In order to do away with doubts, Article 78(4) of the Constitution dictates, in case of special seat – women vacancy, the Commission to nominate Ladies as Parliamentarians whose names appear in the database of the Commission (presumably the law intended the proposing authorities not to abuse their powers through proposing Ladies with whom they have conflicts of interests) by virtue having participated in constituency contestation for elections.
The challenge herein is the lacunae in the sense that at the time the Constitution was being amended and passing new laws to invite multiparty system the law makers did not foresee so that they could expressly include in the Constitution or statute (lack of statutory foresight) the possibility of occurrence of political radicalism in the future, in the sense that there is no any judicial precedent or constitutional or statutory provision as to what should be done in case any qualified political party decides to be radical and refuses to or strikes the discharge of its constitutional obligations by not proposing the names of a women for special seats – women.
The Constitution or statutes are also silent as to what should be done in case the Commission nominates any person special seats – women when the political party has not proposed any.
Under the circumstances the Commission, by proceeding to nominate ladies special seat while CHADEMA had refused to propose, did not contravene any existing provision of the Constitution or any law because it was the Constitution which is silent to the effect that the Commission was surrounded by discretionary choice as to whether to nominate or not to nominate.
Having received the Ladies nominees whose names were sent by the Commission, the Speaker’s duty was only to swear them in because he had no mandate to question the legality under which they were obtained unless any person intending to object their Parliamentarianism had filed a formal objection to that effect, something which was not done anyway.
In Administrative Law the administrative decision done under environments of legal lacunae or in environments of legal ambiguities are in other words termed as ad hoc decisions and the administrative body becomes filled with discretion; provided that such discretion must be lawful and reasonable (test of legality and reasonableness), and actually the decisions under such environments are sub-legislative choice of policy or in other words are termed as decisions ex post facto.
Administrative discretion refers to the flexible exercising of judgments and decisions allowed to public administrators.
In the American decided case of Citizens to Preserve Overton Park Inc. vs Volpe, 401 US 402 [1971], in Memphis, Tennessee, citizens claimed that the Secretary of Transportation made a decision to have construction of a high way where Overton Park was located, therefore, violated the statute passed by the Congress but the Supreme Court of the United States, under Justice Burger upheld the feasible and prudent clause despite that the decision of Secretary was contrary to Department of Transportation Act, 1966. This means that, although in exceptional circumstances, administrative bodies are justified to disregard statutory provisions so as to meet public interests.
Philip Cooper defines administrative discretion as the “power of an administrative body to make significant decisions that have the force of law, directly or indirectly, and that are not specifically mandated by the Constitution, statutes, or other sources of black letter law”
So, even though it seems that the decisions of the Commission and the Speaker were biased under the circumstances but following the fact that there was no any provision of the Constitution or statute to warrant what the decision ought to be done, it therefore remains as to whether the so doing was reasonable and necessary, thus the rule of necessity comes at play.
The rule of necessity is a judicial doctrine that permits judges or administrative agency decision makers to decide a case even if they ordinarily be disqualified due to bias or prejudice. The rationale of the doctrine is that if there is no other person who can do the decision let the biased person decide the case rather than no decision made at all.
The act of the Commission to nominate Ladies and eventually swearing them in by the Speaker was, even though CHADEMA did not propose them, a reasonable necessary step to rescue the constitutional objectives because so long as the constitutional provisions were silent under the circumstances there is no any reasonable administrative body who would wait until the Constitution is amended in order to proceed with government actions with view to meeting the public objectives implied in the Constitution.
Under the circumstances of the lacunae, the Commission had two options, whether or not to nominate after CHADEMA’s refusal to propose. Now it could reasonably be necessary to nominate because failure to do so was to offend the Constitution which gave vacancies for women participation in national politics for gender equality.
The action of CHADEMA by not proposing the names of women was calculated to frustrate the constitutional continuum, and therefore contravened the Constitution and the National Elections Act, to the effect that every subsequent administrative decisions done by the Commission and the Speaker was justifiable to rescue the public policy under the doctrine of necessitatis non habet legem (necessity knows no law), a Latin legal maxim which is a defense in public law where the state or public body may take necessary measures to rescue public interests or to meet public objectives! In this situation the law never demand whether or not it is written, just as Jesus Christ, the legal positivist, was insisting in the Bible when he was being tempted by Satan.
However, by lack of proposition letter, because CHADEMA denied it thus assuming it is proved as being forged renders the said letter void as if it never existed in the sense that the government cannot act upon a forged document, there is a necessary implication under Article 78(4) of the Constitution that by refusing to propose any woman as required, all positions of special seats - women for CHADEMA were presumed to had been fell vacant thus the Commission was justified to proceed to nominate those nineteen (19) women who participated in constituencies elections campaigns according to the Commission’s database. With further necessary implication under Article 78(4), the Constitution did not intend the special seats women to remain vacant.
Article 78(4) Orodha ya majina ya wagombea wanawake iliyowasililshwa kwa Tume ya Uchaguzi na kila chama kwa ajili ya Uchaguzi Mkuu ndiyo itakayotumiwa na Tume ya Uchaguzi baada ya kushauriana na chama kinachohusika, kwa madhumuni ya kujaza nafasi yoyote ya Mbunge wa aina hii inapotokea wakati wowote katika maisha ya Bunge.
By contravening Article 78(1) of the Constitution and sections 86A of the National Elections Act, Cap. 343, in physics one might say that CHADEMA, for not giving complementarity or cooperation to the constitutional objectives, disturbed the (constitutional) equilibrium, just as throwing a stone in the ripple tank thus causing waves, or in other words, disturbances so that all subsequent Constitution non-compliances by the Commission and the Speaker were remedial necessities.
The act of the Speaker to swear in those Ladies was not an option but mandatory after the Commission had nominated and deployed them to him unless there was any formal preliminary objection raised by any person challenging their eligibility to be sworn in.
Having seen that the Commission and the Speaker have done such necessary actions to rescue the public objectives implied in the Constitution, CHADEMA, in order to make sure that things remain frustrated against the government, opted to terminate the Ladies’ party memberships so as to maliciously disqualify them from being Parliamentarians under Article 71(1)(e) of the Constitution.
Here there are conflicts of laws between the CHADEMA rules of conduct and the Constitution of the United Republic whereby the provision or underlying objectives of the Constitution will, of course, prevail on the one hand and the principle of illegality, in Latin maxim referred to as ‘ex turpi causa non oritur actio’ sometimes referred to as “ex dolo malo non oritur actio” to mean that no right of action can arise from unlawful acts shall apply, on the other hand!
“None shall benefit from his own wrong.” This was the practical application of the principle of ex turpi causa non oritur actio in the decided case of Riggs vs Palmer 115 N.Y. 506 (1889). In that case, the Supreme Court of the United States, affirming the decision of the Court of Appeals of New York, held; “the Court must deny succession to a son who killed his father so that the testament would be effective, even though the will (testament) was validly executed in son’s favour by his deceased father. Thus: CHADEMA’s action to refuse to be cooperative for constitutional objectives cannot be a ground for their constitutional rights or blessings for CHADEMA’S intra-party administrative measures against the nineteen (19) women.
Having considered that the laws should be consistent, therefore, if the action of CHADEMA to refuse the proposition of women for nomination was a derogation of their constitutional obligations and contrary to sections 86A and 89(1) of the National Elections Act on the one hand and the subsequent administrative decisions by the Commission and the Speaker were meant necessary measures to cure constitutional objectives on the other hand, there remains an inference that the actions of CHADEMA were void ab initio and therefore the Ladies by being cooperative to meet the public objectives implied in the Constitution to promote marginalized women gender in political activities, although against the interests of CHADEMA, were lawful actions in themselves.
For this reason, the action of termination of the Ladies party memberships was based on the illegalities for its being maliciously calculated to sabotage constitutional goals to the extent that the action of CHADEMA was retrospective, mala fide (based on bad faith) and therefore the said ladies are lawfully remaining in Parliament notwithstanding. To put this fact clear the nominated nineteen(19) CHADEMA Ladies cannot be condemned for the reason that they were cooperative to the public objectives implied in the Constitution, although CHADEMA was aggrieved to that effect, something which in the law of torts, CHADEMA suffered a ‘damnum sine injuria,’ a Latin legal maxim to mean that that even if somebody was hurt by the actions of another person such other person is not legally responsible because he never infringed any legal right vested into somebody so hurt.
The basic principles of Constitutional interpretation are mainly two namely "literal" and "broad meaning". By basing on the fact that there was no express provisions in our Constitution in relation to such events that arose after 2020 general elections, the principle of broad meaning to interpretation, in my opinion, is the best option so as to draw intended inferences in it, as a mother law, by basing on its broad underlying values from which legislations, customs, precedents and other moral and political judgments would derive their justifications.
The administrative decisions even if erroneous remain valid unless challenged in Court through Judicial Review, therefore the Commission and the Speaker are already functus officio, which means that an administrative officer who has made decision on certain facts his mandates have expired in the sense that he cannot go back anymore to revoke his own decisions. At this juncture, the Commission and the Speaker cannot reverse their decisions or utterances because the issue is already closed.
In Courts of law, the doctrine of functus officio is used to refer to a judge or any other person whose decision making duty or authority has expired and come to an end after making a decision to the extent that the law prohibits reopening of the cases which have been already decided.
In the case of Malik Hassan Suleiman vs Serikali ya Mapinduzi ya Zanzibar [2005] T.L.R. 236, the Court of Appeal of Tanzania held that: "A court becomes functus officio when it disposes of a case by a verdict of guilty or by passing sentence or making orders finally disposing of the case, in this case, the learned judge became functus officio when he passed the judgment on 19th February 1998 and he was not clothed with the necessary jurisdiction to review his own decision subsequently”.
The doctrine of functus officio is one of the mechanisms by means of which the law gives expression to the principle of finality in the sense that once a decision maker has pronounced a final decision or order, his authority to correct such decision expires so as to prevent intolerable uncertainties in government administrative or judicial decisions.
In this regard the Speaker cannot revoke his statement that “the Ladies will remain Parliamentarians even though without any political party memberships;” and this decision, which is otherwise functus officio, is binding against the whole National Assembly because none questioned the same.
On the other side of the coin, by terminating those Ladies’ Parliamentarianism, the Speaker will have wavered his defense of acting in necessity for public interests, thus, instead, it will be his confession to had intentionally or negligently contravened the Constitution or abused his office, something which may attract his impeachment by the very National Assembly.
Except the said Ladies are advised to make necessary legal measures to reconcile or quash the decision of CHADEMA either by way of appeal within the party or by way of judicial review, in order to do away with possibility of being disqualified as Parliamentarians in the 2025 general elections, be it by constituency or by nomination after the expiration of this ad hoc Parliamentarianism which they are enjoying today.
7. Conclusion
Following my analysis in the foregoing, it is in my strong opinion that the CHADEMA Ladies are lawfully in Parliament within the ambits of underling moral and political objectives of our Constitution until the Parliament is dissolved in year 2025. This is because they were so nominated under circumstances amounting to state of emergency thus entitled to be termed as “ad hoc Parliamentarians” so as to meet political objectives of our constitution for public interests which is, among other things, the gender equality in national political affairs, a raison d’être of our Constitution.
To justify this point of view, one should revisit Prof. Ronald Dworkin’s definition of law to mean beyond the scripts of black letter laws, where he says: "law is a body of rights given expression to in legislation, custom and precedent, plus the political and moral rights that are implied by the political theory that best explains and justifies the existing legislation, custom and precedent"
So many unprecedented social events, having not been expressly covered in the Constitution, statutes or judicial precedents are to be expected to sporadically arise in human community lifetime. There is no any Legislature around the world that can cover every unforeseen future event into the statute. For this reason therefore not every uncovered new event must necessitate the amendment or passing of new Constitution or statute, because by doing so may lead to costly daily printing of such laws and wastage of public funds unnecessarily instead of applying legal creativity by decision makers.
God bless Tanzania.
“Building a Nation through Legal Reasoning”
Obadia Kajungu, Esq.
+255-756-145-390
obbidee4tz@gmail.com
(Jurisprudence Revisited)
THIS Article, although it might strongly seem biased to those politically motivated readers, tends to give insights of law review of socio-legal, political and administrative incidences of the means through which the CHADEMA special seats -women were nominated and eventually being sworn in as members of Parliament following the year 2020 General Elections results for purposes of academic critical legal theory reasoning.
By
Obadia Kajungu, Esq.
+255 756 145 390
obbidee4tz@gmail.com
1. Abstract
“in hard cases, judges only constantly talk about
the answer they already knew in advance”
‘Hard Cases’ may be explained to mean Herbert L. A. Hart’s general name given to issues of law where facts are not fitting the existing statutes or precedents thus rendering decision makers to be generally surrounded by discretion as to who or against whom should benefit the decision.
This Hart’s legal concept has faced serious criticism including Professor Ronald Dworkin but, nevertheless at the end of the day Hart’s concept has remained invincible to the extent that modern philosophers of law are divided in this respect whereas Prof. Ronald Dworkin although has come out with his convincing “single answer model” other philosophers, positivists, critical legal studies scholars and legal realists have stagnated to “no single answer model” on the ground that “the legal doctrines are always indeterminate.”
2. Author’s Forewords
When I was in the university taking my undergraduate studies I used to be imagining the possibility of applicability of those legal theories and concepts we were being taught by professors into our daily practical social and occupational life. I have worked in the government organizations for the period indeterminable and therefore fetched a broad spectrum of experience to the extent of understanding the nature of governments and their relationships with citizens. I came to realize Julius Stone’s words that the challenges of our profession are the processes of bringing legal practice to our everyday life for creating legal theories drawn from the experience of our own society or to bring legal theories which we studied in schools but which were drawn from the experience of exotic societies to our everyday life for legal practice at home.
I came at some time to strongly hate actions of universities which in some cases required at least three years working experience as a condition precedent so as to join for master’s degree but which I came to realize later that experience matters in advanced academics rather than analytical conceptual works in the level above undergraduate education. The intention was to afford postgraduate students to come with comparisons between what they studied at school and what they saw at work in the field as inputs for master’s education armed with their own inferences. I realized further that this was also intended to afford such students to be creative in the sense that they could make theories out of their own experience and to see whether they can apply theories they studied at school which were inferred from exotic societies into their local social life. I was indeed too naïve to comprehend the objects of the then academicians requiring experienced students for advanced university studies until it was, but not too late.
Today, universities do not bother set working experience as a prerequisite for a student to qualify for master’s education enrollment presumably due to lack of employments opportunities after degree certificates whereas by proceeding to insist on working experience, such university institutions will be denying many graduates who fell unlucky by missing jobs an opportunity for further studies. I came to understand later that the requirement of working experience was important to enroll postgraduate students with not only high level of intelligence quotient (IQ) but also experience with empirical inputs from the field to test what theories provide.
3. Introduction
In this article it is intended to apply legal theories into practice with view to test and disclose the legitimacy of appointed nineteen (19) special seats - women as Parliamentarians through conflicting administrative decisions made by the Office of Chama cha Demokrasia na Maendeleo (CHADEMA), the Office of the Director of Elections (the Commission) and the Office of the Parliamentary Speaker (the Speaker), under the unprecedented facts whereby, in this respect, our existing Constitution, electoral statutes and judicial precedents were silent with view to coming out with an opinion on the position of the law under the circumstances at the end.
We have experienced in our country, the controversial post election socio-legal political issues of administrative dilemma which left questions than answers in the diverse of ambivalent public opinions.
Following the completion of year 2020 national general elections in our country there was, as a matter of constitutional requirements in every general elections, necessary administrative decisions for national administrative and political systems restructuring.
This being the case, there arose some misunderstandings between CHADEMA, the Commission and the Speaker which in principle was year 2020 post election results discontent on the allegations that there was no free and fair elections due to alleged poll rigging whereas opposition parties being led by CHADEMA blamed the Commission that it condoned the poll rigging alleged to had been made by Chama Cha Mapinduzi (CCM).
4. Facts
After the year 2020 Tanzania’s general elections, CCM rose to scoop majority polls of 92% followed by CHADEMA which scored 5% and the rest of political parties scoring 3% of general polls.
Oppositions were not satisfied by the elections results which were announced by the Commission. CHADEMA, having won 5% of general elections votes was, pursuant to Articles 66 and 78 of the Constitution of the United Republic of Tanzania (the Constitution) and section 86A of the National Elections Act, Cap. 343, qualified to propose names of women candidates to be nominated by the Commission as Parliamentarians special seats – women. Because of being dissatisfied by the elections, CHADEMA opted not to propose the names of women for special seats to the Commission for nomination.
Later on, the Commission basing on the letter purported to had been received from CHADEMA nominated nineteen (19) Ladies from CHADEMA and deployed them to the Speaker who swore in them and eventually they became Parliamentarians notwithstanding.
CHADEMA contended that it never proposed any lady and alleged that the letter of proposition was forged but as of today it is unknown as to who forged the said letter, to wit; whether the Commission forged the letter so that it could fulfill constitutional objectives; or whether the ladies decided so forge and enjoy the constitutional vacancies which CHADEMA refused to give its blessings.
CHADEMA decided to revoke the Ladies’ membership from the party on the grounds among other things of disciplinary misconduct and hypocrisy to the party. The Speaker, notwithstanding that Article 67(1)(b) and 71(1)(e) of the Constitution, where the former Article dictates persons to belong to the Political Party so as to qualify as Parliamentarians while the latter expressly stipulates that the cessation of belonging to any political party disqualifies a person from continuing to be a Parliamentarian, decided to condone these constitutional provisions thus he proceeded to pronounce publicly that the Ladies shall remain Parliamentarians even though their party memberships were revoked.
The validity of these actions ranging from CHADEMA’s refusal of proposing the women all the way long to the Commission’s decision by proceeding to nominate Ladies devoid of the proposition by CHADEMA plus the consequential swearing in by the Speaker and eventually the Speaker’s utterance on his intended retaining as Parliamentarians, the Ladies whose party memberships were revoked under the silent constitutional and statutory provisions to cover this unprecedented event, seem to have their answer in Jurisprudence and Administrative Law.
Having due regard to the parables of events that appeared to turmoil our constitutional continuum in administrative decision makings, I would prefer a review of Hart’s concept of “hard cases” to test as to whether it fits into our local society by giving the answer to the events narrated in the above facts in relation to our constitutional and statutory lacunae in the light of the legality of decisions made by CHADEMA vis-à-vis legality of counter-decisions made by the Commission, the legality of decisions made by the Speaker and eventually the legitimacy of remaining Parliamentarians, the Ladies whose political party memberships were revoked with view to bringing new insights into Tanzania’s legal reasoning.
Before we go deep into advanced laws, I must put it clear to everyone to agree with me that CHADEMA, the Commission and the Speaker are products of the Constitution which are interdependent with view to meeting constitutional objectives for the interests of the nation. I want to mean that these offices have the same and equal constitutional recognition in the sense that every office has its constitutional complementarity in order to meet Tanzanian constitutional goals.
5. The Law
The decision of CHADEMA, by refusing to propose women to the Commission for nomination to be members of Parliament was, in principle, an action of defiance of Article 78(1) of the Constitution which reads as thus:
78.—(1) Kwa madhumuni ya uchaguzi wa Wabunge Wanawake waliotajwa katika ibara ya 66 (1) (b), vyama vya siasa vilivyoshiriki uchaguzi, kwa kufuata utaratibu uliowekwa, vitapendekeza kwa Tume ya Uchaguzi majina ya wanawake kwa kuzingatia masharti ya uwiano wa uwakilishi baina ya vyama vilivyoshinda uchaguzi katika majimbo na kupata viti Bungeni. Tume ya Uchaguzi ikiridhika kuwa mtu yeyote aliyependekezwa anazo sifa za kuwa Mbunge itamtangaza kuwa amechaguliwa kuwa Mbunge, na masharti ya ibara ya 67 ya Katiba hii yatatumika kuhusu kuchaguliwa kwa mtu huyo kuwa Mbunge.
So it is undisputed that CHADEMA, having refused to cooperate with its counterpart constitutional offices perhaps due to its discontent on general elections results while having qualified to propose names of special seats – women after achieving the set constitutional minimum standard of 5%, contravened Article 78(1) of the Constitution as cited above and also was contrary to Section 86A of the Elections Act, Cap. 343; which reads as thus hereunder:
86A- (1) There shall be women special seats in the National Assembly as provided for in Article 66 of the Constitution.
(2) A political party which contests for Parliamentary election held after the dissolution of the National Assembly may propose and submit to the Commission the names of eligible women candidates for nomination to women special seats.
(3) The Commission shall specify a number of women candidates to be nominated by each political party.
(4) The names of women candidates proposed to the Commission shall be in the order of preference.
(5) The provisions of Article 67 of the Constitution shall apply to every woman who is sponsored by a political party.
(6) The Commission shall, subject to articles 66, 67 and 78 of the Constitution and in accordance with the order of preference indicated in the list proposed by each political party, declare such number of women candidates from the respective political parties as Members of Parliament special seats women.
(7) The Commission shall send a notification of the declaration to the Speaker of the National Assembly and Secretary General of the respective political parties.
(8) The list of names of women candidates proposed to the Commission in accordance with article 78(4) of the Constitution by each political party for the General Elections shall, subject to Article 76(3) of the Constitution, be the same list that shall be used by the Commission for purposes of filling any vacancy in the office of Member of Parliament for women special seats during the whole period of the life of Parliament.
The decisions of the Commission and the Speaker by proceeding to nominate and swearing in the Ladies was respectively, assuming that it is proved that the letter of proposition was indeed a forgery thus void to the effect that there was no such a letter at all, therefore, it is undisputed that the said nominations were done by the Commission and subsequent swearing in by the Speaker were in real sense done without the blessings of CHADEMA as required by the Constitution.
Again, the decision of the Speaker to pronounce that the Ladies will remain Parliamentarians notwithstanding the loss of their (Ladies’) party memberships was in fact, in contravention of Article 71(1)(e) of the Constitution.
So long as the actions of both CHADEMA, the Commission and the Speaker were in contravention of the Constitution, therefore there remain two main issues, one being that “whether the actions of the commission and consequential swearing in of the Ladies were lawful regard being heeded to the presumption of lack of letter of proposition by CHADEMA after refuting to had written such a letter”; and the other issue being “whether the Ladies are legally Parliamentarians despite that CHADEMA has revoked their party memberships.”
6. Analysis
“On the one hand, legal doctrine seems indeterminate, but it may be maintained that even in ‘hard cases’, judges only ‘constantly talk about the answer they already knew in advance.”
Legal philosophers are divided in this respect. Dworkin provided a very convincing answer for the ‘single answer’ model, whereas both inclusive and exclusive Positivists and Critical Legal Studies (CLS) and Legal Realists presented plausible to the ‘no single answer’ model.”
In law, there is a distinction between arguments of principle on the one hand and arguments of policy on the other hand. Arguments of principle are arguments that appeal to ideas about fairness and rights. Arguments of policy justify political decision by showing that the decision advances or protects some collective goal of the community as a whole. That is to say the decision making process always is a dual action in the sense that it tends to meet both the principle of law and public policy. In going through this theoretical proposition, eventually everybody shall agree with me and bear in mind that there is no force of law that can be effective without political powers behind to the effect that political objectives are part and parcel of the law.
In applying this principle of law we must consider the object of Tanzania’s constitutional provisions particularly Article 66(1)(b) and 78(b) and the decisions of the Commission and the Speaker as being based on the latent argument of principle but manifested on the argument of policy. Article 66(1)(b) reads:
66.—(1) Bila ya kuathiri masharti mengine ya ibara hii, kutakuwa na aina zifuatazo za Wabunge, yaani— (a) …………………..;
(b) Wabunge wanawake wa idadi inayoongezeka, kuanzia asilimia ishirini ya Wabunge waliotajwa katika aya ya (a), (c) na (d), itakayotajwa mara kwa mara na Tume ya Uchaguzi kwa taarifa itakayochapishwa katika Gazeti la Serikali baada ya kupata kibali cha Rais, watakaochaguliwa na vyama vya siasa vinavyowakilishwa Bungeni, kwa mujibu wa ibara ya 78, na kwa kuzingatia masharti ya uwiano wa uwakilishi baina ya vyama hivyo;
For this reason, within the meaning of Article 66 of the Constitution and Section 86A of the National Elections Act, Cap. 343, we should unanimously agree that the special seats – women are the constitutional vacancies dedicated to the Commission so as to make the political parties not to be complacent but to work hard so as to be granted such seats as a motivation, that is why the law has set a minimum target to the political party as a standard of motivation, of at least 5% to qualify to nominate women to the Commission. In other words, the special seats women are not political party’s vacancy and to insist onto that effect, according to Article 78(1) it is in the discretion of the Commission to or not to nominate the Lady so proposed by the political party to be a Parliamentarian!
Except, at the time the constitution was being amended to include the multiparty democratic system, women were still marginalized in political activities thus a need of nurturing gender matters in Tanzania’s politics, while newly established opposition parties were intended by the constitution to be motivated by setting a minimum standard of achievement of at least 5% as per Article 78 and Section 86A of the National Elections Act, Cap. 343 in order to qualify for award of special seats women as a gift from the Commission.
In order to ascertain this constitutional objective and the intention of parliament behind the necessity of nomination of women special seats –women as parliamentarians, section 89 of the National Elections Act, Cap 343, creates an offence for any person who, in his official capacity resists the exercise of nomination of the woman to contest for nomination for special seats.
The section provides as thus;
89(1) Any person holding any official office or acting in any official capacity who, in the exercise of functions of such office or in such official capacity, makes any statement or does any act with intent to discourage any other person from seeking nomination under this Act or to procure any person who has been nominated to withdraw his candidature, commits an offence and shall, on conviction, be liable to the fine not less than one hundred thousand shillings and not exceeding three hundred thousand shillings or to imprisonment for term not exceeding twelve months or to both.
What does this mean? This means that, the actions of CHADEMA’s officers who, in their official capacity or in the capacity of their offices, fought to discourage the Ladies in their pursuit to be nominated, or dismissing their party memberships so as to disqualify Ladies for their candidature, attracts jail or fine through criminal prosecutions.
In order to do away with doubts, Article 78(4) of the Constitution dictates, in case of special seat – women vacancy, the Commission to nominate Ladies as Parliamentarians whose names appear in the database of the Commission (presumably the law intended the proposing authorities not to abuse their powers through proposing Ladies with whom they have conflicts of interests) by virtue having participated in constituency contestation for elections.
The challenge herein is the lacunae in the sense that at the time the Constitution was being amended and passing new laws to invite multiparty system the law makers did not foresee so that they could expressly include in the Constitution or statute (lack of statutory foresight) the possibility of occurrence of political radicalism in the future, in the sense that there is no any judicial precedent or constitutional or statutory provision as to what should be done in case any qualified political party decides to be radical and refuses to or strikes the discharge of its constitutional obligations by not proposing the names of a women for special seats – women.
The Constitution or statutes are also silent as to what should be done in case the Commission nominates any person special seats – women when the political party has not proposed any.
Under the circumstances the Commission, by proceeding to nominate ladies special seat while CHADEMA had refused to propose, did not contravene any existing provision of the Constitution or any law because it was the Constitution which is silent to the effect that the Commission was surrounded by discretionary choice as to whether to nominate or not to nominate.
Having received the Ladies nominees whose names were sent by the Commission, the Speaker’s duty was only to swear them in because he had no mandate to question the legality under which they were obtained unless any person intending to object their Parliamentarianism had filed a formal objection to that effect, something which was not done anyway.
In Administrative Law the administrative decision done under environments of legal lacunae or in environments of legal ambiguities are in other words termed as ad hoc decisions and the administrative body becomes filled with discretion; provided that such discretion must be lawful and reasonable (test of legality and reasonableness), and actually the decisions under such environments are sub-legislative choice of policy or in other words are termed as decisions ex post facto.
Administrative discretion refers to the flexible exercising of judgments and decisions allowed to public administrators.
In the American decided case of Citizens to Preserve Overton Park Inc. vs Volpe, 401 US 402 [1971], in Memphis, Tennessee, citizens claimed that the Secretary of Transportation made a decision to have construction of a high way where Overton Park was located, therefore, violated the statute passed by the Congress but the Supreme Court of the United States, under Justice Burger upheld the feasible and prudent clause despite that the decision of Secretary was contrary to Department of Transportation Act, 1966. This means that, although in exceptional circumstances, administrative bodies are justified to disregard statutory provisions so as to meet public interests.
Philip Cooper defines administrative discretion as the “power of an administrative body to make significant decisions that have the force of law, directly or indirectly, and that are not specifically mandated by the Constitution, statutes, or other sources of black letter law”
So, even though it seems that the decisions of the Commission and the Speaker were biased under the circumstances but following the fact that there was no any provision of the Constitution or statute to warrant what the decision ought to be done, it therefore remains as to whether the so doing was reasonable and necessary, thus the rule of necessity comes at play.
The rule of necessity is a judicial doctrine that permits judges or administrative agency decision makers to decide a case even if they ordinarily be disqualified due to bias or prejudice. The rationale of the doctrine is that if there is no other person who can do the decision let the biased person decide the case rather than no decision made at all.
The act of the Commission to nominate Ladies and eventually swearing them in by the Speaker was, even though CHADEMA did not propose them, a reasonable necessary step to rescue the constitutional objectives because so long as the constitutional provisions were silent under the circumstances there is no any reasonable administrative body who would wait until the Constitution is amended in order to proceed with government actions with view to meeting the public objectives implied in the Constitution.
Under the circumstances of the lacunae, the Commission had two options, whether or not to nominate after CHADEMA’s refusal to propose. Now it could reasonably be necessary to nominate because failure to do so was to offend the Constitution which gave vacancies for women participation in national politics for gender equality.
The action of CHADEMA by not proposing the names of women was calculated to frustrate the constitutional continuum, and therefore contravened the Constitution and the National Elections Act, to the effect that every subsequent administrative decisions done by the Commission and the Speaker was justifiable to rescue the public policy under the doctrine of necessitatis non habet legem (necessity knows no law), a Latin legal maxim which is a defense in public law where the state or public body may take necessary measures to rescue public interests or to meet public objectives! In this situation the law never demand whether or not it is written, just as Jesus Christ, the legal positivist, was insisting in the Bible when he was being tempted by Satan.
However, by lack of proposition letter, because CHADEMA denied it thus assuming it is proved as being forged renders the said letter void as if it never existed in the sense that the government cannot act upon a forged document, there is a necessary implication under Article 78(4) of the Constitution that by refusing to propose any woman as required, all positions of special seats - women for CHADEMA were presumed to had been fell vacant thus the Commission was justified to proceed to nominate those nineteen (19) women who participated in constituencies elections campaigns according to the Commission’s database. With further necessary implication under Article 78(4), the Constitution did not intend the special seats women to remain vacant.
Article 78(4) Orodha ya majina ya wagombea wanawake iliyowasililshwa kwa Tume ya Uchaguzi na kila chama kwa ajili ya Uchaguzi Mkuu ndiyo itakayotumiwa na Tume ya Uchaguzi baada ya kushauriana na chama kinachohusika, kwa madhumuni ya kujaza nafasi yoyote ya Mbunge wa aina hii inapotokea wakati wowote katika maisha ya Bunge.
By contravening Article 78(1) of the Constitution and sections 86A of the National Elections Act, Cap. 343, in physics one might say that CHADEMA, for not giving complementarity or cooperation to the constitutional objectives, disturbed the (constitutional) equilibrium, just as throwing a stone in the ripple tank thus causing waves, or in other words, disturbances so that all subsequent Constitution non-compliances by the Commission and the Speaker were remedial necessities.
The act of the Speaker to swear in those Ladies was not an option but mandatory after the Commission had nominated and deployed them to him unless there was any formal preliminary objection raised by any person challenging their eligibility to be sworn in.
Having seen that the Commission and the Speaker have done such necessary actions to rescue the public objectives implied in the Constitution, CHADEMA, in order to make sure that things remain frustrated against the government, opted to terminate the Ladies’ party memberships so as to maliciously disqualify them from being Parliamentarians under Article 71(1)(e) of the Constitution.
Here there are conflicts of laws between the CHADEMA rules of conduct and the Constitution of the United Republic whereby the provision or underlying objectives of the Constitution will, of course, prevail on the one hand and the principle of illegality, in Latin maxim referred to as ‘ex turpi causa non oritur actio’ sometimes referred to as “ex dolo malo non oritur actio” to mean that no right of action can arise from unlawful acts shall apply, on the other hand!
“None shall benefit from his own wrong.” This was the practical application of the principle of ex turpi causa non oritur actio in the decided case of Riggs vs Palmer 115 N.Y. 506 (1889). In that case, the Supreme Court of the United States, affirming the decision of the Court of Appeals of New York, held; “the Court must deny succession to a son who killed his father so that the testament would be effective, even though the will (testament) was validly executed in son’s favour by his deceased father. Thus: CHADEMA’s action to refuse to be cooperative for constitutional objectives cannot be a ground for their constitutional rights or blessings for CHADEMA’S intra-party administrative measures against the nineteen (19) women.
Having considered that the laws should be consistent, therefore, if the action of CHADEMA to refuse the proposition of women for nomination was a derogation of their constitutional obligations and contrary to sections 86A and 89(1) of the National Elections Act on the one hand and the subsequent administrative decisions by the Commission and the Speaker were meant necessary measures to cure constitutional objectives on the other hand, there remains an inference that the actions of CHADEMA were void ab initio and therefore the Ladies by being cooperative to meet the public objectives implied in the Constitution to promote marginalized women gender in political activities, although against the interests of CHADEMA, were lawful actions in themselves.
For this reason, the action of termination of the Ladies party memberships was based on the illegalities for its being maliciously calculated to sabotage constitutional goals to the extent that the action of CHADEMA was retrospective, mala fide (based on bad faith) and therefore the said ladies are lawfully remaining in Parliament notwithstanding. To put this fact clear the nominated nineteen(19) CHADEMA Ladies cannot be condemned for the reason that they were cooperative to the public objectives implied in the Constitution, although CHADEMA was aggrieved to that effect, something which in the law of torts, CHADEMA suffered a ‘damnum sine injuria,’ a Latin legal maxim to mean that that even if somebody was hurt by the actions of another person such other person is not legally responsible because he never infringed any legal right vested into somebody so hurt.
The basic principles of Constitutional interpretation are mainly two namely "literal" and "broad meaning". By basing on the fact that there was no express provisions in our Constitution in relation to such events that arose after 2020 general elections, the principle of broad meaning to interpretation, in my opinion, is the best option so as to draw intended inferences in it, as a mother law, by basing on its broad underlying values from which legislations, customs, precedents and other moral and political judgments would derive their justifications.
The administrative decisions even if erroneous remain valid unless challenged in Court through Judicial Review, therefore the Commission and the Speaker are already functus officio, which means that an administrative officer who has made decision on certain facts his mandates have expired in the sense that he cannot go back anymore to revoke his own decisions. At this juncture, the Commission and the Speaker cannot reverse their decisions or utterances because the issue is already closed.
In Courts of law, the doctrine of functus officio is used to refer to a judge or any other person whose decision making duty or authority has expired and come to an end after making a decision to the extent that the law prohibits reopening of the cases which have been already decided.
In the case of Malik Hassan Suleiman vs Serikali ya Mapinduzi ya Zanzibar [2005] T.L.R. 236, the Court of Appeal of Tanzania held that: "A court becomes functus officio when it disposes of a case by a verdict of guilty or by passing sentence or making orders finally disposing of the case, in this case, the learned judge became functus officio when he passed the judgment on 19th February 1998 and he was not clothed with the necessary jurisdiction to review his own decision subsequently”.
The doctrine of functus officio is one of the mechanisms by means of which the law gives expression to the principle of finality in the sense that once a decision maker has pronounced a final decision or order, his authority to correct such decision expires so as to prevent intolerable uncertainties in government administrative or judicial decisions.
In this regard the Speaker cannot revoke his statement that “the Ladies will remain Parliamentarians even though without any political party memberships;” and this decision, which is otherwise functus officio, is binding against the whole National Assembly because none questioned the same.
On the other side of the coin, by terminating those Ladies’ Parliamentarianism, the Speaker will have wavered his defense of acting in necessity for public interests, thus, instead, it will be his confession to had intentionally or negligently contravened the Constitution or abused his office, something which may attract his impeachment by the very National Assembly.
Except the said Ladies are advised to make necessary legal measures to reconcile or quash the decision of CHADEMA either by way of appeal within the party or by way of judicial review, in order to do away with possibility of being disqualified as Parliamentarians in the 2025 general elections, be it by constituency or by nomination after the expiration of this ad hoc Parliamentarianism which they are enjoying today.
7. Conclusion
Following my analysis in the foregoing, it is in my strong opinion that the CHADEMA Ladies are lawfully in Parliament within the ambits of underling moral and political objectives of our Constitution until the Parliament is dissolved in year 2025. This is because they were so nominated under circumstances amounting to state of emergency thus entitled to be termed as “ad hoc Parliamentarians” so as to meet political objectives of our constitution for public interests which is, among other things, the gender equality in national political affairs, a raison d’être of our Constitution.
To justify this point of view, one should revisit Prof. Ronald Dworkin’s definition of law to mean beyond the scripts of black letter laws, where he says: "law is a body of rights given expression to in legislation, custom and precedent, plus the political and moral rights that are implied by the political theory that best explains and justifies the existing legislation, custom and precedent"
So many unprecedented social events, having not been expressly covered in the Constitution, statutes or judicial precedents are to be expected to sporadically arise in human community lifetime. There is no any Legislature around the world that can cover every unforeseen future event into the statute. For this reason therefore not every uncovered new event must necessitate the amendment or passing of new Constitution or statute, because by doing so may lead to costly daily printing of such laws and wastage of public funds unnecessarily instead of applying legal creativity by decision makers.
God bless Tanzania.
“Building a Nation through Legal Reasoning”
Obadia Kajungu, Esq.
+255-756-145-390
obbidee4tz@gmail.com
