Fatma Karume's opinion on president's power to confer the municipality status of the city was given per incuriam

[Mwanasheria Lunkunku]

SHANGAZI FATMA KARUME'S OPINION ON PRESIDENT'S POWER TO CONFER THE MUNICIPALITY STATUS OF THE CITY WAS GIVEN PER INCURIAM.

PART 1: GENERAL OVERVIEW.

President, John Pombe Magufuli in early hours of 24th February, 2021 during the inauguration of the Ubungo Interchange expressed his intention to dissolve the Dar es Salaam City Council in lieu thereof to confer the Ilala Municipal Council the status of the City Council.

Several hours later on the same day the Minister of State in the President's Office (Regional Administration and Local Government), Hon. Selemani Jafo released the official statement that President Magufuli has dissolved Dar es Salaam City Council and in lieu thereof has conferred the Ilala Municipal Council the status of the City Council and that such decision comes into effect immediately from 24 February, 2021.

Hon. Selemani Jafo in his official statement said that President's legal authority to dissolve the Dar es Salaam City Council and confer Ilala Municipality the status of the City is derived from provisions of Section 5 (1) and 84 of the Local Government (Urban Authorities) Act, Cap. 288, however, it seems Hon. Selemani Jafo inadvertently forgot to cite the provisions of Section 5 (3) of the Local Government (Urban Authorities) Act, Cap. 288 as amended by provisions of Section 14 of the Local Government Laws (Miscellaneous Amendments) Act, 2006 (Act No. 13 of 2006) which expressly bestow upon His Excellency President of the United Republic of Tanzania the power to confer the Municipality status of the City in lieu thereof he cited Section 5 (1) of Cap. 288 which is too general instead of Section 5 (3) of Cap. 288 which is very specific on this subject matter.

The President's move to dissolve the Dar es Salaam City Council and conferment of Ilala Municipality the status of the City did not go well with the former President of Tanganyika Law Society, Shangazi, Fatma Karume who criticised the move by President by painting it as illegal move and Shangazi's legal attacks were twofold, id est, substantive front and procedural front. Shangazi, Fatma Karume (as fondly known and addressed by her supporters ) opined that the move by President was both substantively and procedurally illegal move thereby ultra vires in law.

On substantive illegality Shangazi argued that the President does not have power to establish the City in lieu thereof such power vests in the Minister for Local Government and Regional Administration. On procedural impropriety Shangazi argued that the Minister did not publish the two months notice in the Government Gazette and one News Paper to call upon or invite the general public (people) to lodge objections against the move to establish the City contrary to provisions of Section 7 of the Local Government (Urban Authorities) Act, Cap. 288.

With due respect, I beg to differ with Shangazi wa Taifa, Madam Fatma Karume albeit a little bit with regards to President's power to confer the Municipality status of the City. However, my antagonistic view against Ms. Karume's opinion centres on matters of substance rather than the matter of procedure. On matter of procedure for establishment of City Council, Shangazi Fatma Karume was and still is substantially correct in law save that she wrongly cited provisions of Section 7 of the Local Government (Urban Authorities) Act, Cap. 288 in lieu of Section 8 of Cap. 288 as far as procedures for establishment of, or conferment of status of a city council to the Municipality are concerned.

The procedures for establishment of the City Council are prescribed by provisions of Section 8 of the Local Government (Urban Authorities) Act, Cap. 288 as correctly stated by Shangazi Fatma Karume are summarised briefly hereunder;

(1) the Minister should publish the two months notices in the Government Gazette to call upon interested persons to lodge objections and to prescribe particulars relating establishment of City Council.

(2) If no objection is lodged the Minister should proceed to cause the establishment Order to be published in the Government Gazette.

(3) If objections are lodged, the Minister should consult the President and consider or take into account such objections prior the City Council is established.

(4) After Establishment of the City Council, the Minister must lay before the National Assembly a copy of the Establishment Order.

With regards to President's power to establish the City or conferment the Municipality status of the City, Shangazi Fatma Karume's opinion was given per incurium either in forgetfulness or ignorance, inter alia, of the following provisions of law:

(1) Section 3 and 5 (1) of the Ministers (Discharge of Ministerial Functions) Act, Cap. 299.

(2) Rule 2 of the Ministers (Assignment of Ministerial Functions) Notice, 2016 (G.N. No. 144 of 2016) and provisions of the First Schedule thereto.

(3) Section 7 (2) of the Urban Planning Act, 2007 read in tandem with provisions of Paragraph 5 of the Fifth Schedule thereto.

(4) Section 5 (3) of the Local Government (Urban Authorities) Act, Cap. 288.


PART 2: PRESIDENT AS MINISTER FOR LOCAL GOVERNMENTS.

It must be noted from the outset that the provisions of Section 5 (3) of the Local Government (Urban Authorities) Act, Cap. 288 as amended by provisions of Section 14 of the Local Government Laws (Miscellaneous Amendments) Act, 2006 (Act No. 13 of 2006) expressly bestow upon His Excellency President of the United Republic of Tanzania the power to confer the Municipality status of the City apart from President being the Minister for Local Government and Regional Administration as matter of law. The provisions of Section 5 (3) of the Local Government (Urban Authorities) Act, Cap. 288 as amended by provisions of Section 14 of the Local Government Laws (Miscellaneous Amendments) Act, 2006 provides as reproduced de verbo in verbatim hereunder;
​

​

"(3) Where the purpose sought to be achieved by the order under subsection (1) is only to confer on an existing municipality the status of a city, that order shall be made by the President; ..................."


The President of United Republic is the Minister for Local Government and Regional Administration in terms of provisions of Section 3 and 5 (1) of the Ministers (Discharge of Ministerial Functions) Act, Cap. 299 read in tandem with the provisions of Rule 2 of the Ministers (Assignment of Ministerial Functions) Notice, 2016 (G.N. No. 144 of 2016) and provisions of the First Schedule thereto. Under the said provisions, the President of the United Republic in his own wisdom retained to himself the ministerial functions relating to Local Government and Regional Administration. Therefore, in terms of the said provisions President has power to establish City Council or confer status of the City Council to a Municipal Council, dissolve the City Council, expand or reduce or vary the boundaries of City Council under provisions of Section 5 and 84 of the Local Government (Urban Authorities) Act, Cap. 288 and under provisions of Section 7(2) of the Urban Planning Act, 2007.

Where the question arises as to whether the Minister or public authority who is responsible for a certain ministerial matter as between President, Vice-President, Prime Minister, Minister or Deputy Minister, then such question should be referred to the Attorney General for determination whose decision is final and conclusive and the Court of law cannot inquire into such question determined by Attorney General, reference be made to provisions of Section 5 (2) of the Ministers (Discharge of Ministerial Functions) Act, Cap. 299.

If I am invited to describe the legal status of the so called Minister for Local Government and Regional Administration, Hon. Suleiman Jafo's in the Executive of United Republic, I would describe him as the Minister without Portfolio in the Office of President assigned by President the role of supervising the Local Governments and Regional Administration affairs in this great res republica. This is why official title of Hon. Suleimani Jafo is the Minister of State in the President's Office (Regional Administration and Local Government.

Maajabu na kweli is that the law neither recognises the Ministry of Local Government and Regional Administration nor recognises the Office of Minister for Local Government and Regional Administration.

The so called Ministry of Local Government and Regional Administration is not in the statutory list of the Ministries of the Government of United Republic listed in the Second Schedule to the Ministers (Assignment of Ministerial Functions) Notice, 2016. The so called Ministry of Local Government and Regional Administration is nothing but a mere part and parcel of Presidential Ministry alongside Public Service Management and Good Governance and the Presidency. Also, the so called Minister for Local Government and Regional Administration is not listed as the Minister in the Second Schedule to the Ministers (Assignment of Ministerial Functions) Notice, 2016.

Now, therefore, I wish to conclude that wherever the term "Minister" appears in the provisions of the Local Government (Urban Authorities) Act, Cap. 288 means and include the President of the United Republic of Tanzania who is the Minister for Local Government and Regional Administration in terms of provisions of Section 3 and 5 (1) of the Ministers (Discharge of Ministerial Functions) Act, Cap. 299 read in tandem with the provisions of Rule 2 of the Ministers (Assignment of Ministerial Functions) Notice, 2016 (G.N. No. 144 of 2016) and provisions of the First Schedule thereto.


PART 3: APPROPRIATE LEGAL ARGUMENTS AND COUNTER ARGUMENTS.

Shangazi Fatma Karume would somehow be correct in law if she would have challenged the conferment of Ilala Municipality the status of City by President if she would have premised her argument on provisions of Paragraph 5 of the Fifth Schedule to the Urban Planning Act, 2007 (Act No. 8 of 2007) read in tandem with provisions of Section 7 (2) of the same Act alongside Doctrine of Implied Repeal as enunciated by Court of Appeal in the case of Julius Ishengoma Ndyanabo Vs Attorney General, Civil Appeal No 64 of 2001.

Provisions of Paragraph 5 of the Fifth Schedule to the Urban Planning Act, 2007 provide as follows:
​

"5. .............. The power to bestow a municipality the status of a city shall be vested in the National Assembly."​

So, the argument of Shangazi would be that the power to bestow a municipality the status of the city mandatorily vests in the National Assembly and that in case of conflict between Cap. 288 and Act No. 8 of 2007 in respect of conferment of status of city council to the municipality the later prevails over the former within purview of Doctrine of Implied Repeal as enunciated by Court of Appeal in the case of Julius Ishengoma Ndyanabo Vs , Civil Appeal No 64 of 2001.

It is important to take notice, that the provisions of Section 5 (3) of the Local Government (Urban Authorities) Act, Cap. 288 expressly bestow upon His Excellency President of the United Republic power to confer the Municipality status of the City.

However, provisions of Section 5 (3) of the Local Government (Urban Authorities) Act, Cap. 288 is in conflict with provisions of Paragraph 5 of the Fifth Schedule to the Urban Planning Act, 2007 read in tandem with provisions of Section 7 (2) of the same Act which mandatorily vests in the National Assembly the power to confer the municipality status of the city.

Nevertheless, under Doctrine of Implied Repeal as enunciated by Court of Appeal in the case of Julius Ishengoma Ndyanabo Vs Attorney General, Civil Appeal No 64 of 2001 it is settled principle of law that where a later legislation is inconsistent with, or repugnant to, an earlier legislation to the existent that the two cannot co-exist, then the latter legislation overrides or prevails over the earlier legislation thereby the later legislation in law is taken to have repealed the earlier legislation by necessary legal implication.

To this end, on basis of Doctrine of Implied Repeal it can be argued that the Urban Planning Act, 2007 which is the later legislation overrides or prevails over the Local Government (Urban Authorities) Act, Cap. 288 which is the earlier legislation.

However, this argument premised on Paragraph 5 of the Fifth Schedule to the Urban Planning Act, 2007 and Section 7 (2) of the Act alongside the Doctrine of Implied Repeal can be challenged by Counter Argument promised on Latin Maxim: Lex specialis derogat legi generali otherwise known as Lex Specialis Doctrine which provides that if two laws which regulate the similar subject matter are in conflict, then special law that regulates specific subject matter (lex specialis) overrides or prevails over a general law that regulates the matter generally ( lex generalis ).

In Tanzania Lex specialis Doctrine finds legal refuge in the decision of the Court of Appeal in the case of the Permanent Secretary (Establishments) & the Attorney General Vs Hilal Hamed Rashid and 4 Others, Civil Appeal No. 64 & No. 66 of 2002 which is also reported in [2005] TLR 121.

On basis of Lex specialis Doctrine it can be argued that the Local Government (Urban Authorities) Act, Cap. 288 is lex specialis which overrides or prevails over the Urban Planning Act, 2007 which is lex generalis.

By Matojo M. Cosatta​

 

[Retired]

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[Stroke]

Ndefu sana msomi make it short please and in an easy language.

 

[Intelligence Justice]

Hon. the learned lawye Matojo M. Cosattar,

Why did you ptefer challenging the 'Shangazi wa Taifa' as she fonds being touted by her bewildered supporters on disbanding the then Dar Es Salaam City Councl and alternatively confrering status of a City Council to a geopolitic Ilala Municipal Council?

Are you prepared to be circumvented with countless outraged attacks from her blinded supporters?

Oqtherwise I concur with your indepth and explicit legally cited arguments healthful for the respective authority take it to correct the expressly and impliedly general technical errors.

I commend you to further continue advising without playing a sided position.

 

[fyddell]

Ndefu sana msomi make it short please and in an easy language.

Lugha ya kisheria hiyo, haifupishiki mkuu

 

[Stroke]

Lugha ya kisheria hiyo, haifupishiki mkuu

Naelewa mkuu lengo langu iwe katika lugha rahisi ambayo kila mtu ataelewa.

Mimi sina tatizo kabisa na hiyo lugha mkuu.

 

[Mwanasheria Lunkunku]

Ndefu sana msomi make it short please and in an easy language.

The targeted audience are members of legal fraternity, scholars and politicians at national level who are willing to read longest disquisitions for acquisition of legal knowledge and for constructive criticism of this disquisition.

 

[Mwanasheria Lunkunku]

Hon. the learned lawye Matojo M. Cosattar,

Why did you ptefer challenging the 'Shangazi wa Taifa' as she fonds being touted by her bewildered supporters on disbanding the then Dar Es Salaam City Councl and alternatively confrering status of a City Council to a geopolitic Ilala Municipal Council?..

Much thanks for appreciation.

 

[la magica]

Si mliambiwa muwe mnatumia kiswahili jamani🤤

 

[Stroke]

The targeted audience are members of legal fraternity, scholars and politicians at national level who are willing to read longest disquisitions for acquisition of legal knowledge and for constructive criticism of this disquisition.

Nimeona kule kwenye group lenu umepost ukaona haitoshi umeileta na hapa.

Haya bwana ngoja nikuache maana nafahamu kuna ka nafasi unagombea TLS hivyo hii nayo ni sehemu ya kutanua wigo.

Kama ulivyosema wewe umelenga watu wazito wazito tu, bila shaka kabisa makapuku huna kama wateja wako.

 

[Mwanasheria Lunkunku]

Nimeona kule kwenye group lenu umepost ukaona haitoshi umeileta na hapa.

Haya bwana ngoja nikuache maana nafahamu kuna ka nafasi unagombea TLS hivyo hii nayo ni sehemu ya kutanua wigo.

Kama ulivyosema wewe umelenga watu wazito wazito tu, bila shaka kabisa makapuku huna kama wateja wako.

Hizi ni hoja za kiunazuhunio (scholarly arguments), hivyo, consumers ni, lawyers, scholars na politicians at national level.

Sifanyi kampeni hapa JF bali ninachangia kama ilivyo desturi ya wana JF wote.

 

[MIXOLOGIST]

Issue ya msingi ni kwamba Oysterbay iko nje ya jiji na Chanika iko ndani ya jiji. Hizo nyingine ni siasa tu

 

[viking]

Kiinglish nitarudi baadae ,to hell with you. English ,Hivi nimetamka kiinglishi au kishwahili

 

[Stroke]

Hizi ni hoja za kiunazuhunio (scholarly arguments), hivyo, consumers ni, lawyers, scholars na politicians at national level.

Sifanyi kampeni hapa JF bali ninachangia kama ilivyo desturi ya wana JF wote.

Ila mada ipo jukwaa la siasa,

Inabidi ipelekwe jukwaa la sheria kwa muktadha huo.

 

[YEHODAYA]

Fatma ni mzanzibari mambo ya bara atuachie wenyewe

Serikali za mitaa si jambo la muungano atuachie watanzania bara
Pia naipongeza serikali kupitisha lugha ya mahakama kuwa kiswahili sasa hicho alichoandika kamwandikia nani Ansyetdam au nani? mimi nimetoka patupu sijaelewa chochote

Tatu kaandika vingereza vingi lakini hajawahi shinda kesi hata moja mahakamani !!!

 

[Mwanasheria Lunkunku]

Si mliambiwa muwe mnatumia kiswahili jamani🤤

Sheria zote zitafsiriwe kwa Kiswahili kwanza ndo wanasheria wataanza kutumia Kiswahili. Sheria zote ambazo nifanyia rejea kwenye andiko langu ziko katika lugha ya Kiingereza.

 

[Intelligence Justice]

Sheria zote zitafsiriwe kwa Kiswahili kwanza ndo wanasheria wataanza kutumia Kiswahili. Sheria zote ambazo nifanyia rejea kwenye andiko langu ziko katika lugha ya Kiingereza.

Mkuu,

Unauwezo mkubwa sana wa kujibu hoja kwa kuzingatia matakwa ya kisheria. Huwezi kuanza kutumia Kiswahili mahakamani kama sheria husika bado ziko kwenye lugha ya kigeni. Endapo kama shauri likaamuliwa bila kuzingatia mwongozo wa kisheria utatoa mwanya kwa wanasheria nguli kutoa changamoto katika maamuzi.

Uzuri kwa taaluma ya sheria hata ukibadili matumizi ya lugha kwenda Kiswahili kuna baadhi ya maneno hasa ya Kilatini, Kirumi, Kigiriki na Kifaransa hayatabadilika kuepuka kupoteza maana halisi hivyo bado wanasheria wana uwanada mpana wa kifundi katika matumizi yake yatawapiga chenga baadhi ya wateja katika kesi.

Tazama Kiingereza kinachotumika Nigeria kuna baadhi ya maneno ambayo wanaamini kuyatafsiri kutoka lugha ya asili yatapoteza maana halisi hivyo inabidi wayatumia katika matumizi yao

 

[Smart911]

Ahsante kwa taarifa.

 

[Stroke]

Sheria zote zitafsiriwe kwa Kiswahili kwanza ndo wanasheria wataanza kutumia Kiswahili. Sheria zote ambazo nifanyia rejea kwenye andiko langu ziko katika lugha ya Kiingereza.

Ni kweli mwanasheria wa Chadema.

 

[paul sylvester]

These things are just for fun, If everything about urban planning is broken or upgraded until an announcement is made in the Government Gazette ..... why is it when the President is promoting the city of Dodoma from the Municipality to the city, why were there no such reports in the newspaper Governmentbefore?

Except on the same day the President declared Dodoma a city and there were no complaints from Fatma Karume, a.k.a Aunt of the Nation?

Stop sewage politics