A Welcome Precedent

On June 20th of this year, Tanzania’s Prime Minister, Mizengo Pinda responded to a question in parliament by South Kilwa MP, Murtaza Mangungu, that asked about the government’s position on allegations of police use of excessive force and brutality, particularly in cases such as the Mtwara protests. To paraphrase the Prime Minister’s response, he said that we are a country that abides by the law and that if anyone intends to create chaos, they should just be beaten up.

This statement has created a lot of controversy and debate. On the one hand, supporters of the Prime Minister’s statement remind us that indeed we are a nation that operates within the constraints of the law, and anyone who breaks the law should rightfully be held accountable. On the other hand, opponents argue that what the Prime Minister’s statements amount to are directives to an already aggressive security apparatus to physically abuse individuals, in spite of their legal and human rights.

Tanzania’s Legal and Human Rights Centre (LHRC), along with the Tanganyika Law Society (TLS) are within this latter camp. The two organizations have taken the Prime Minister and the Attorney General to court over these statements. The LHRC and TLS both feel that Pinda’s statements  “will spark extrajudicial killings as it came from one of the most top three government leaders.” They want the Prime Minister to publicly rescind his statements.

These very courageous institutions are doing a very laudable service to this nation. They are setting a welcome legal precedent that (1) one can take a high ranking official to court, holding them accountable through the legal system and (2) one can invoke the constitution to hold government accountable. Both these things will test the independence of our judiciary. Win or lose, the precedent has been set.

And they have built an excellent case. Their case rests on two major Articles of the constitution: Article 12 and 13. They argue specifically that Pinda’s statements are in violation of Articles 12(1); 13(1); 13(3); and 13(6)(a-e).

Article 12(1) says that “Every person is entitled to recognition and respect for his dignity.” Underpinning the equality of each and everyone of us.

Article 13(1) says that “All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law.”  This is fundamental because not only does it underscore our shared equality, but also our shared equality in front of the law. The law must be impartial, for it to be of any worth to our society. Pinda’s statements violate this clause because under his paradigm of “just beat them up”, you are assuming that these “protesters” are somehow unequal in front of the law.

Article 13(3) says that “The civic rights, duties and interests of every person and community shall be protected and determined by the courts of law or other state agencies established by or under the law.” This not only provides legal protection to all, but it also introduces the idea that the courts are the organs of one’s protection. The law is supreme, eternal and protects us all, unlike a transient elected government which is temporary.

Article 13(6)(a-e) is quite long but is worth quoting in its entirety to make my point as it says the following:

“To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely:

(a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the
decision of the court or of the other agency concerned;

(b) no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence;

(c) no person shall be punished for any act which at the time of its commission was not an offence under the law, and also no penalty shall be imposed which is heavier than the penalty in force at the time the offence was committed;

(d) for the purposes of preserving the right or equality of human beings, human dignity shall be protected in all activities pertaining to criminal investigations and process, and in any other matters for which a person is restrained, or in the execution of a sentence;

(e) no person shall be subjected to torture or inhuman or degrading punishment or treatment.”

All of these ensure that one is always presumed innocent until proven guilty; that one is not tortured or subjected to a punishment not commensurate to the crime; and that human dignity is always preserved in one’s dealings with the law.

The case was presented in court yesterday and the Prime Minister has objected to these charges. As of this writing, I could not get details on his objections, but earlier this year John Joel, Parliement’s Table Office Director, defended Pinda and said that as an MP, the Prime Minister has constitutionally-provided immunity for statements made in parliament. Moreover, Joel said that if Pinda had indeed violated the constitution, parliament would have moved a motion of no confidence against the Prime Minister and hence, the absence of this motion is a signal of parliament’s confidence in Pinda.

Now, I find this argument a bit absurd. The absence of a no confidence vote in parliament is not a signal of confidence or anything for that matter. Our’s is a contradictory parliament. Last year, this same parliament enacted a law outlawing social security withdrawals, but then quickly amended that law to allow withdrawals. This year, that same parliament enacted a law introducing a Tshs. 1,000 per month tax on mobile phone sim cards, but then quickly amended that law to remove the tax. In the absence of the crescendo of public outcries, the government, has by the way “forgotten” to amend that particular law and Tanzania’s Revenue Authority (TRA) has vowed to collect this tax until the amendment is passed in parliament, as they should. This is the nature of our parliamentary mood swings. But I digress.

The point still remains that parliamentary actions do not constitute anything but the seasonal whims of parliament, which seem inconsistent at best, schizophrenic at worst.

In the end, I am proud of the LHRC and the TLS for filing this case because prior to this, there are really no examples of high ranking officials being summoned to court, let alone sued in a court of law. When former President Benjamin Mkapa testified in defense of his buddy, Prof. Costa R. Mahalu, it was front page news, not only because of the controversial nature of the case, but also because of the precedent this case set of having a former high ranking government official be cross-examined in court. Now, if you think that was a big deal, even though Mkapa was not on trial, this Pinda case is an even bigger deal.

This case is even more historic, because Pinda is still Prime Minister and is on trial, unlike Mkapa, who was neither a current government official nor on trial.

I wrote a few months ago in The People’s Constitution: Fact or Fiction, that in order for our constitution to mean anything, it is up to all of us, “the citizenry, to ensure the government and the organization of our state adhere to those words, lest the constitution simply be a dead document.” The folks at the LHRC and the TLS are doing exactly what I hope each and everyone of us does. And that is using the constitution and not allowing it to just be a dead document. By invoking constitutional provisions in their case, these folks are making our constitution a living document.

In 1954, the United States Supreme Court handed down a landmark decision in the Brown versus Board of Education case, arguing against segregation of schools in that country. This case overturned an earlier Plessy versus Ferguson case that upheld states’ rights to segregate resources according to one’s race. In trying to end segregation, the National Association for the Advancement of Colored People (NAACP) had many options at their disposal. They could either invigorate violent and/or non-violent protest to these segregation laws or they could use the courts to argue against the law. The organization chose the latter and to do so, the organization recruited among the best and brightest of lawyers, including a young Thurgood Marshall, who later became a US Supreme Court Justice. Rather than asking that the “separate but equal” doctrine be struck down, Marshall and others asked the States to enforce Plessy versus Ferguson. 

In what is among the greatest examples of strategic legal fights, they argued that indeed facilities were separate, but they were never equal. They filed a series of lawsuits that sought to enforce the equality of the segregation law. In one famous case, a law school could not prove that it provided equal facilities to its black students as it did to its white students, including a well-equipped library, identical to the white-only library, for instance. As a result, the court ordered the school to either provide these equal facilities, which it could not afford to do, or integrate the black students into the white student population, which it was forced to do, in lieu of building a brand new identical library, and the like.

You see, taking down segregation took decades before Brown versus Board of Education struck down segregation. It took case upon case that build legal precedent. By the time the issue was taken up by the highest court in the land, it was easy even for a prejudiced justice to succumb to the majority opinion that segregation is wrong. For our democracy to strengthen, we should not necessarily clad in the patience of the civil rights movement of the United States, but we should certainly not sit idly without incrementally gaining ground, battle after battle.

The case against Pinda might be a token case in that nothing will actually come of it, i.e. Pinda might not be forced to rescind his words, which he should do, without legal action. But even if the case is lost, we all win, just by the fact that the case was tabled. John Joel’s best argument in defending the Prime Minister is invoking a constitutional argument that under Article 100(1-2), the Prime Minister is immune to prosecution based on words uttered in parliament. That particular article reads as follows:

“There shall be freedom of opinion, debate and in the National Assembly, and that freedom shall not be breached or questioned by any organ in the United Republic or in any court or elsewhere outside the National Assembly.

Subject to this Constitution or to the provisions of any other relevant law, a Member of Parliament shall not be prosecuted and no civil proceedings may be instituted against him in a court in relation to any thing which he has said or done in the National Assembly or has submitted to the National Assembly by way of a petition, bill, motion or otherwise.”

Mr. Joel is right. But the fact that the two sides are using the constitution to battle it out in court is a welcome thing for us all. I am not a student of law, nor of Tanzania’s legal history, but to the best of my knowledge, this case constitutes the first of its kind in our country. I hope there will be plenty more that will set welcome precedents for us all. Let us take these fights to improve our country’s governance, democracy and rule of law through such means, and not just into the streets.