By Allen Crony Kasamala*
Tanzania
is a sovereign state that subscribes to the principle of the rule of law. The
definition of the term rule of law is contested in that there is no single agreed
definition.
Emeritus
Professor Geoffrey Walker provides that most of the contents of the rule of law
can be summed up in two points; first that the people should be ruled by the
law and obey it and secondly that the law should be such that people will be able
to be guided by it.
On
the other hand Christian Fleckof LexisNexis an entity on the advancement of the
Rule of Law sums the principle to mean ‘ that no one is above the law. The
principle is intended to be a safeguard against arbitrary governance, whether
by a totalitarian leader or by mob rule. Thus the rule of law is hostile both
to dictatorship and to anarchy’
In
a nutshell the following salient tenets are warranted for a state to be said to
be subscribing and practicing the said principle, the separation of powers, law
made by representatives of the people in an open and transparent way,
presumption of innocence, independence of the judicially, equal and fair
application of the law among others .
The
constitution of the United Republic of Tanzania provides for the separation of
powers assigning distinct roles to the three organs of state namely; the
Executive, Judiciary and the legislature. Furthermore the constitution of
Tanzania has within it incorporated the Bill of Rights from Articles 12 through
to article 30.
The
constitution provides both for rights and obligations applicable to the
subjects of the Republic and those who reside in it. Article 26 provides
clearly and categorically to the effect that every person has the duty to
observe and to abide by the constitution and the laws of Tanzania.
In
one of the past issues of the East
African an article by one Ansbert Ngurumo captioned ‘Critical Minds Have a
Hard Time With JPM’ the article creates an impression and indeed the writer
draws the conclusion that there is a gross departure in the application of the
principle of the Rule of Law in Tanzania more specifically with regards to the
freedom of expression which is provided for under article 18 of the
Constitution. A section of activists have also carried the similar
propositions.
I
see it as an obligation to be part of the said ‘critical minds’ from a legal
point of view and indeed to share my knowledge to the debate provoked by what I
see as a less researched article in various circles.
It
is important to note the irony here that by writing his article the writer and
other critics are in fact freely enjoying that right which they feel the state
is abridging.
The
laws cited in the article and in many discussions no doubt were enacted by the
Parliament of Tanzania in an open and transparent manner by the highest organ
of representation in the country and indeed we all are by virtue of article 26
of the Constitution duty bound to observe them.
Cases
pending in Court are also referenced to and I would not owing to legal professional
ethics wish to discuss their merits as has my friend because that may be
interpreted to mean contempt of Court which is against law. It is thus
disturbing to say Tanzania is intolerant to the freedoms when one can even have
the audacity to contempt the court by freely discussing pending court cases in
open forum.
While
we spend millions of taxpayers’ money to service the Parliament and to enact
laws, it is in my opinion, fallacious to see the execution of those laws by the
Executive and the interpretation of the same by the judiciary as provided for
by the constitution as being a departure rather than compliance and administration
of justice, it would have made a significant argument if there were arbitral
arrests without any basis of law or that there were detentions without trial on
record.
Arraigning
a person to Court for a supposed breach of law is part of the administration of
justice where among other rights one is provided for an opportunity to legal
representation and the enjoyment of the rules of natural justice that no one be
judge in his own case and the right to be heard nemoiudex in causasua and audialterampartem
respectively.
Otherwise
how does one test the laws we have in force and enacted in a transparent manner
by the highest level of democratic representation and at a cost?
Finally
no freedoms even in the most liberal countries are absolute and without a duty.
The European Convention for instance provides that ‘everyone has the right to
freedom of expression’ but the Convention adds a limitation clause empowering
governments for among other reasons the interests of national security,
preserving public safety and for the prevention of disorder or crime to
restrict the freedom.
It is thus the Courts well constituted within
proper jurisdiction and in their enjoyment of their jealously guarded doctrine
of the independence of the Judiciary that can decide in context whether a ‘
dream’ amounts to a crime as provided by law or otherwise.
I
thus see no cause for concern in that respect contrary to Mr Ngurumo’s highly
politicized comments. My only concern is the temptation by some to try to
justify our own anarchy by interfering with the due process of law and choosing
for convenience purposes and possible partisan considerations in highlighting what we perceive to be state anarchy.
On
a final note no one in Tanzania is denied a right to move the Courts to have
them interpret any provision of the laws of the land one feels there is a need
to do so, furthermore there are procedures to amend and repeal laws however
while ignorance of law is no defense once a law is force the duty is to comply
and not to defy.
Lord
Justice Mwaisumo of Tanzania in one of his most celebrated Judgements summed it
up in these iconic words ‘the Court is a temple of justice no one should fear to
enter it to battle his legal redress’ in brief that is the essence of the Rule
of Law which Tanzania proudly enjoys.
I
see President Magufuli as a true visionary leader, as a positivist and a hero of
our own who ascribes to the very tenets of rule of law and reminds us all that
we have all the available options but to pursue our own rights while we observe
the freedoms of others too.
*Allen Crony Kasamala is an Advocate of the High
Court of Tanzania.
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