ON Thursday 4th June 2020, Tanzanians woke up to the news of a law proposed under the certificate of urgency to significantly alter the country’s constitutional order.
This was followed immediately after by a notice by the clerk of the parliament soliciting public opinion with a shocking 48-hour notice. The bill titled the Written Laws (Miscellaneous Amendments) Ac no.3 2020 seeks to amend a series of laws including the Basic Rights and Duties Enforcement Act, the Presidential Affairs Act, the National Assembly Act and the Judiciary Administration Act.
If passed as it is, the bill will eliminate the opportunity for Tanzanian citizens to challenge in court constitutional violations committed by its national leaders. Before such complaints can be admitted, the petitioner would need to prove that the violation affects them personally.
So, if, for instance, Magufuli does indeed bring a bill to parliament to remove the two-term limit provided under Article 40 of the country’s constitution, no one will be able to challenge that unless they can prove that they are personally affected by it.
In further pursuit of his desire to eliminate the term limits, the proposed bill seeks to provide him with immunity from being sued for any violation of the constitution. So, the president can go ahead and declare a special status for his home village, and no one will be able to challenge him unless he is immune from the constitutional violation. The president took an oath to uphold and defend the constitution.
If no citizen can go to court to challenge violations by the president who is doubly protected by law from being sued, the letter and spirit of the Tanzanian constitution are rendered useless.
Magufuli’s authoritarian and extralegal temperament is an open secret. Since taking office he has enacted a series of legislation that have contravened both the constitution and existing laws.
In 2019, he swirled through parliament amendments that make it impossible for independent charitable organizations to operate unless they seek a 9-year license which doesn’t guarantee their continued presence should the registrar decided to withdraw their registration.
In a departure from common law traditions, Tanzania no longer has legal provision for charitable companies as such. Companies are now required to “promote trade, commerce and investment”. These amendments were challenged in court by well-meaning citizens before this most recent bill was introduced which would not have been possible with the new amendments.
Magufuli’s administration is known for being an ardent violator of the constitution. In 2017, he appointed Adelardus Kilangi to become his Attorney General. The former lecturer had no experience of practice as a lawyer and had never served in government. Obviously, he was not qualified for the appointment.
The Tanzania constitution demands that one qualifies and practices as an advocate of the high court or serves in public office for at least 10 years before they can be appointed Attorney General. Magufuli did not heed to public warnings and protest. He and went on to appoint the law professor. Both hail from his stronghold in the Lake Victoria region.
In October 2019, he fired the Controller and Auditor General Prof. Mussa Assad and replaced him with his former finance assistant at the Tanzania National Roads Agency (TANROADS), Charles Kichere, another “home-mate.”
The two are known buddies who had worked closely together when Magufuli was Minister for Works. Both these decisions have sparked widespread debate, protest and subsequently suits against the president at the Tanzanian High Court.
Since coming into power, Magufuli has been consolidating his presidency by centralizing key government functions, including the local government docket, the national airline and important procurement functions, which he personally supervises.
In the last two years, his government has been accused of failing to account for over US$ 2Billion as per the Controller and Auditor General, leading to the latter’s dismissal.
When his ruling party lost the Zanzibar elections in 2015, the national military occupied the islands and nullified the election results leading to a total boycott from the government by Zanzibar’s largest opposition party CUF which had since 2010 run a government of national unity.
The military occupation of Zanzibar has been followed by the passing of draconian laws including a new Election Act in 2018 which provides immunity for the Electoral commission should they decide to nullify the elections once more.
The only thing standing between Magufuli and his life presidency is his own party, CCM, the only party that has ruled the country for the past 59 years.
In a move to recoup control of the party, he changed the party’s constitution to limit the influence of national leaders, including retired presidents from being part of the decision making organs. He went on to slash the number of elected representatives at the party’s politburo only to keep a small crew of sycophants running the bureau and the party’s all-powerful secretariat.
At the party’s national convention in December 2017, he was warned by the party’s old guard to stay away from life presidency, which has been touted by some of his known followers prior.
Since assuming the party’s chairmanship, he has deliberately invested in recalibrating the party in order that his bid for the life presidency is not challenged. Now that he feels confident about his chances in the party, he has embarked on clearing constitutional and legal hurdles to his ultimate wish.
His interest in amending the laws, therefore, stems from a recent court decision in the application of Ado Shaibu vs the President of Tanzania, and of Zitto Kabwe vs the President of Tanzania, in which the high court determined that as per article 46 of the constitution, the president is not granted immunity from a constitutional violation.
The amendments, therefore, are a reaction to what Magufuli considers nuisance from the courts in his closely guarded ambition for a life presidency. Since the constitution already protects him from criminal liability, the obligation to uphold the constitution is the only thing standing in the way of his preferred supreme presidency.
In attempts to lure the courts, he has offered, in this most recent amendment, the immunity for all judicial employees so that they can join him in violating the constitution to support his life presidency bid.
The parliament, which basically has a very important obligation to stop Magufuli from a lifetime presidency, seems to give leeway to his wish, using the majority of his members in the August house. Opposition parliamentarians look set to block the move, but their fewness betrays their noble and patriotic position.
In October 2019, SAUTI KUBWA ran a story predicting how life-presidency was creeping into Tanzania. With this new law, it is almost becoming a reality. On Tuesday, June 9 2020, some ruling party MPs proposed the amendments that would extend the president’s terms in office. Since 1995, no president has been in power for over two terms of five years each as per constitutional provision. The house speaker responded in support of the proposal.
One local bishop, in an open letter circulated on social media, has publicly warned the president, the house speaker and the members of parliament against this move. They will likely not heed his advice.
