REFLECTIONS ON THE PROCEEDINGS OF THE AUGUST 2009 DODOMA
MEETING OF THE NATIONAL EXECUTIVE COMMITTEE OF CCM.
MEETING OF THE NATIONAL EXECUTIVE COMMITTEE OF CCM.
By Pius Msekwa
Vice-Chairman of CCM.
Vice-Chairman of CCM.
INTRODUCTION:
Since the closure of the CCM National Executive Committee (NEC) meeting which ended in Dodoma on 17th August 2009, there has been a great deal of media reports, focussing on what is believed to have transpired in that meeting regarding Hon. Speaker Samuel Sitta. The print media has been awash with stories describing what they claim to be “information from sources inside the meeting”.
The purpose of this article is to give a correct and factual account of the proceedings of that particular meeting, in order to dispel certain fears arising from some misrepresentations of fact and allegations of improper motives on the part of CCM, such as the allegation that “it had moved to silence its MPs”; as well as other allegations, such as that “through its deliberations, CCM has breached the provisions of article 100 of the Constitution of the United Republic”, etc. But the main media focus has been centered on the Speaker, who is alleged to have been clobbered at the said meeting, on account of his declared war against mafisadi.
In view of these confusing reports, I believe it is important to explain what exactly happened in that NEC meeting.
The proceedings of the NEC meeting of August, 2009.
We will start by making available the relevant information regarding what actually transpired in NEC in relation to this particular matter.
The agenda item under discussion was, the current state of politics in the country (hali ya kisiasa), which covered a wide range of politically sensitive issues that have emerged since the last meeting of NEC. Among them was an item titled “Matamshi na vitendo vya baadhi ya viongozi wa CCM”, (the conduct of and utterances by some CCM leaders). Particular reference was made to certain unacceptable utterances which have been made by members of parliament, and others of the Zanzibar House of Representantives in their respective Houses, as well as the conduct of Speaker Samuel Sitta.
The major concern of the National Executive Committee at that meeting was the simmering problems which had recently emerged in both the Prliament of the United Republic of Tanzania and the Zanzibar House of Representantives, problems which are inimical to the interests and reputation of the party.
These problems relate to (a) the appearance of confrontational groups among the CCM Members of Parliament seemingly based on the question of Ufisadi; (b) the injudicious utterances and conduct of some members of those organs of state. Hence it was prudent and necessary for NEC to discuss these negative developments with a view to finding a viable solution, and taking appropriate remedial action where necessary.
The media reports do not reflect this primary concern of NEC, as they seem to concentrate almost entirely on the Speaker.
Framing the contested issues
As is normally done in court proceedings, the starting point is normally the framing of the issues to be considered during the hearing. Hence in order to facilitate a better understanding of the issues involved in this case, I will also start by framing the issues which are being challenged. These issues are framed on the basis of what has been extensively reported in the print media, because that appears to be the public perception regarding the proceedings of that NEC meeting.
The issues can be listed as follows:
(i) Did the discussions in the National Executive Committee of CCM amount to questioning the proceedings of Parliament, which is a breach of article 100 of the country’s Constitution?
(ii) Was it proper and justifiable for the CCM National Executive Committee to discuss the conduct inside Parliament of its MPs, including the Speaker? In other words, did such action constitute a breach of the law governing the powers and privileges of Parliament?
(iii) Was the Speaker “clobbered” in that meeting because of his front line position in the war against mafisadi?
(iv) Was it a move by NEC to silence its vocal CCM MPs?
In the light of the facts to be presented herein, this article presents a “no” answer to all these questions, as follows:
Issues (i) and (ii): Did NEC breach the law of Parliamentary privilege?
The CCM NEC has the necessary powers to discuss the conduct of its leaders.
Article 108 of the Constitution of Chama cha Mapinduzi (CCM) describes the general functions of NEC meetings, whereby sub-article 108 (8) prescribes the function of “kudumisha uangalizi juu ya vitendo vya wanachama na viongozi wa CCM”. i.e. to maintain a regular watch over the conduct and actions of its members and leaders.
The proceedings of that NEC meeting arose from the mandate provided by that article of the CCM constitution, i.e. the task of maintaining a regular watch over the conduct and actions of its members.
What the NEC actually did
Confrontation on the floor of the House is clearly bad conduct. But it is public knowledge that confrontational groups have developed among the CCM MPs on the issue of fighting ufisadi. These groups are described as consisting of those who are in the front line of the fight against Ufisadi on one side, and those who are condoning ufisadi on the other.
Hence, on the basis of the mandate given to it by the CCM constitution, the NEC meeting proceeded to discuss the conduct of certain CCM Members of Parliament, and certain others of the Zanzibar House of Representatives, who were scrutinized and criticized for failure to carry out their constitutionally binding obligation to safeguard the interests of their political party in the House. (see articles 15 (1), and 105 (3) (6) of the CCM constitution); while the Speaker was criticized for failure to observe, while guiding the proceedings of the House, the parliamentary conventions regarding the operation of the oversight function of parliament over the government in a multi-party Parliament. We will explain these conventions a little later in this article.
Secondly, the CCM MPs were collectively criticized for failure to make proper use of their CCM Parliamentary Standing Committee, or caucus, whose functions are clearly spelt out in the Rules of that Committee. The use of this Committee could have averted the unnecessary public confrontations among and between them, which have been taking place on the floor of the House. It was felt that this division into confrontational groups is what has made it difficult for them to resolve their differences through candid dialogue at meetings of their CCM parliamentary caucus, which in turn has led to undersirable accusations and counter accusations (malumbano) taking place on the floor of the House.
Question: that being the case, was there a breach of the law governing the powers and immunities of parliament? Or of article 100 of the Constitution of the United Republic of Tanzania?
The answer and the supporting evidence.
The answer to both questions is “no”, and that answer is supported by the following authorities:
In the English case of R.v Murphy(1885) 64 A.R.L. 498, it was stated as follows: ‘”what is meant by the freedom of speech and debate in the House is that no court proceedings having legal consequences against a member of parliament are permitted, which have the effect of preventing his exercising free speech in Parliament, or of punishing him for having done so. The freedom of speech and debate in parliament was first declared in Article 9 of the English Bill of Rights, 1689, and was intended to protect members of parliament from possible deprivation by the other Branches of the Government, namely the Crown or the Executive, and indeed the Courts”.
Artilce 100 of the Constitution of the United Republic of Tanzania is an exact reproduction of this declaration in the English Bill of Rights of 1689, and is therefore subject to the same interpretation.
It is worth mentioning also that the authorities quoted above have said further that “article 9 of the Bill of Rights prohibits the questioning of the proceedings of parliament in any place outside parliament; but those participants in its proceedings, principally the members of parliament themselves, but also any witnesses, petitioners, and others, are still subject to the disciplinary powers of the House for their conduct during the proceedings” This statement appears to separate the proceedings themselves from the conduct of its participants. In the instant case, the NEC meeting did not discuss the proceedings of parliament, but discussed only the conduct of its CCM MPs, as participants in those proceedings.
Elaboration of the parliamentary conventions which were adopted from Westminster
We stated earlier that during the NEC meeting of Chama cha Mapinduzi, the Speaker was criticized primarily for his failure, while guiding the deliberations of the House, to observe the parliamentary conventions governing the exercise by parliament of its control function over the government. We will now present the details of those conventions.
The system of parliamentary government which was adopted in Tanganyika at the time of independence was the typical British system commonly known as the “Westminster model”. This is because the country’s Constitution which came into effect on independence day was in many respects the standard form of constitutions which were drafted by the British colonial office in London for all the countries which achieved independence from British colonial rule at that material time. Hence, a Parliament of Tanganyika was established, consisting of Her Majesty the Queen, and the National Assembly. Even the Rules of procedure for the Tanganyika National Assembly were so designed as to follow very closely the procedures and practices of the British House of Commons. In fact, they included an omnibus provision which said thus:
“In all cases not herein provided for, resort shall be had to the usage and practice of the Commons House of Parliament of Great Britain and Northern Ireland”, and further that “in cases of doubt, the Standing Rules and Orders of this Assembly shall be interpreted in the light of the relevant usage and practice of the House of Commons”.
Thus, it is within the environment of British constitutional experience that the people of Tanganyika entered the independence period, and the relations between the National Assembly and the government were naturally shaped by this experience. It is therefore useful to take a brief look at the Rules and conventions governing this relationship.
It is stated in the relevant books of authority that “It is a basic principle of British Constitutional practice that the function of parliament is to control the government, but not to govern the country. British constitutional practice has two basic elements: an iniating and directing element, which is the cabinet of ministers; and a checking and criticizing element, which is the House of Commons. In the House of Commons, this is a function of Her Majesty’s Loyal Opposition. It is chiefly the opposition which prods, probes, critizes and exposes those in power. Indeed, our sytem is one of government of the people and for the people, but not by the people” (emphasis added) See A.H. Birch: The British system of government George Allen & Unwin, London,
The rule regarding government accountability.
The accountability of the government under the British system is said to be assured by two constitutional conventions: the convention that ministers are collectively responsible to parliament for the policy of the government as a whole; and the convention that each minister is individually responsible to Parliament for the work of his Department. The essence of the convention of collective responsibility is:-
(a) That members of the government must present a united front to parliament in defense of government policies, and
(b)That if parliament refuses to support the government on an issue of importance, the Prime Minister and all other ministers must resign.
The existence of this convention is an effective weapon which ensures parliamentary control of the Executive, for it influences the behaviour of the government, and may lead it to modify its plans, as indeed happened in 1965 when the Labour government decided not to go ahead with its declared policy of the re- nationalization of the steel industry.
The convention of individual responsibility means that the Minister in charge of a Department is personally answerable to Parliament for all the actions of that Department. Hence, Members of Parliament who wish to query the performance of any Department know that there is one person who cannot evade the responsibility of answering their questions; and the opportunity to do so is made available everday (except Fridays) during the first hour of business, which is reserved for questions to ministers.
Conventions which condition the British Parliament’s control of the government.
However, there are other parliamentary conventions which have an important effect on this control function of Parliament. They are the following:
(i) The loyalty and discipline of the ruling party back-bench members of parliament. This is not only because of the pressures that the party whips can bring to bear on the individual MPs, but also due to the existence of a team spirit that pervades the respective parliamentary parties. Because of this team spirit, the governing party’s back-bench members are normally most reluctant to do anything that would help the opposition to score a point.
(ii)The British tradition of political behaviour, or political culture, which assumes that because ministers are responsible for governing the country, they should be given ample opportunity to carry out that responsibility.
Consequently, it is agreed that parliament may indeed criticize ministers, but should not obstruct them.
Hence, for example, whereas the President of the United States of America has to accept that Congress will propably amend his budgetary proposals by altering his requests for the appropriation of money to the various Departments of State; the British cabinet is assured that its budget will go through parliament without any change at all. This particular convention is reflected in article 99 (2) of the Constitution of the United Republic of Tanzania.
A Summary
In summary, the applicable Parliamentary conventions or principles which must be observed, are following:-
(a) That the government is accountable to Parliament. Parliament may indeed criticize Ministers, but should not obstruct them in the performance of their government functions.
(b) That there is loyality, discipline and a strong team spirit among the back-bench MPs of the rulling Party.
(c) That Parliament’s role is to exercise the oversight or control function over the government, but not to govern the country.
In the context of Tanzania, in order to assist Parliament to discharge its oversight function properly, the Constitution of the United Republic does not stop only at making provision for this role of Parliament in its article 63 (2); but goes even further and provides the actual procedure through which this function shall be carried out, in article 63 (3) thereof. This is very helpful.
Issue (iii): What was the Speaker’s burden?
The basis of the criticisms directed to the Speaker was not his stand on ufisadi.
It is the non-observance of these conventions and principles which were dopted from the Westminster model a long time ago by the Tanzania Parliament, that was the basis of the criticisms directed to the Speaker by the National Executive Committee, and certainly not because of his stand regarding the war against Ufisadi, which is the false impression that seems to be rapidly gaining ground.
On their part, the CCM MPs were collectively criticized for their lack of party loyalty and disciplne which, under that convention, is routinely expected from the ruling party’s MPs, due to the team spirit which is presumed to exist among them.
As for the Speaker, his critics challenged his conduct of allegedly failing to observe and adhere to these parliamentary conventions. For example, reference was made to a publication titled A Parliament with Teeth, wherein the Speaker has written to challenge Party discipline as being an obstacle or hindrance to his reform programme.
This action by NEC can be faulted.
Although the action taken by NEC to discuss the conduct of the speaker and certain other CCM MPs can be defended to that extent, but it can also be faulted on other grounds, especially on procedural grounds. It can be faulted on procedural grounds because CCM has got good and well-established rules of procedure for prosecuting any of its members or leaders who are alleged to have breached the Party's code of ethics.
The said rules provide for the alleged wrong-doer to be given a list of charges against him, and given ample opportunity to answer those charges. It is only thereafter that the Party’s Ethics Committee convenes in order to examine the matter and make its own decisions and recommendations to NEC.
It is admitted that these procedural rules were not followed in the instant case.
Issue (iv): was the action by NEC a move to silence its vocal MPs?
The failure of CCM MPs to make proper use of the CCM parliamentary party caucus.
The other matter which was discussed by NEC relating to the conduct of CCM Members of Parliament, is their alleged failure to make use of the CCM parliamentary caucus to resolve their individual differences, instead of engaging themselves in confrontations on the floor of the House. This section will answer the last question in the list of the framed issues, namely, was the action by NEC a move to silence its vocal MPs?
In the light of what was actually said in that meeting, the answer is again “no”. There was no move at all to silence the CCM MPs. On the contrary, NEC was drawing their collective attention and reminding them of the existence of the CCM caucus rules, which were specifically designed in order to facilitate their meaningful participation as members of the ruling party, in debates on the floor of parliament.
Generally speaking, Parliamentary party caucuses are an integral part of the fundamental processes of a Multi-party parliament. In the Tanzania parliament, the party parliamentary caucuses are officially recognized by the rules (the Standing Orders) of the House. But the CCM parliamentary caucus has its own rules of procedure, whose main purpose is to enable its back bench members to participate fully in parliamentary debates. They were designed immediately upon entry into the multi-party political system, in order to make provision for the following matters:
(i) To provide a transparent procedure for conflict resolution among its members, in accordance with the CCM Guidelines of 1981, in order to avoid undersirable public confrotations (malumbano) between CCM MPs on the floor of the House; and
(ii) To provide a clear procedure which enables CCM MPs, during the time when their party is in power, to participate fully in the deliberations of the House, in order to remove the false perception that strict party discipline prevents them from doing so.
The objects and reasons for the caucus rules.
The main objective of these rules is to enable the back bench members of the governing party in parliament, just like their counterparts on the opposition benches, also to be heard by their constituents, or the people who voted for them to enter parliament. This is important because one way of ensuring defeat for a member of parliament in his constituency, is to deny him the oxygen of publicity regarding his work inside parliament.
“Publish or perish” is a well known slogan in University academic circles relating to the professional survival of University lectures, which commands them to “publish or perish”. This means that if he has no publications to show, his advancement to higher academic positions is barred. The equivalent of that slogan in relation to Members of Parliament would be: “Speak or perish” i.e. it is for their own survival as parliamentarians representing the people, that they must be heard speaking in parliament. If a Member of Parliament is not heard at all by his voters actually speaking in parliament, his re-election is endangered.
These rules were made after learning from the experience of other parlimentary jurisdictions, which shows that back bench members of the governing party can be “Whipped” to follow the party line on pratically every issue that comes up for debate in parliament, thus affording limited freedom of speech to its members. This is particularly so where the ruling party commands only a small majority over the opposition. The makers of the CCM Parliamentary caucus rules did not want this to happen in our Parliament.
How the rules are crafted.
The CCM caucus rules are similarly based on the British House of Commons experience, which operates at three different levels of the “whip”, depending on the type and importance of the business under discussion. The methodology used is to divide all parliamentary business items, or motions, into three distinct categories for purposes of the whip, as follows:-
Category 1
This category is reserved for certain specified matters which are of extreme importance to the survival of the government, such as motions of “no confidence” in the government which, if passed by the House, would force it out of power. It is only in very serious matters of that kind that the caucus rules attract the highest level of whip, which, in parliamentary parlance, is known as “the three line whip”, whereby each and every member of the governing party is required to support the government, and failure to do so would certainly attract disciplinary action against the offending member.
In the case of CCM, the practice has been to apply that strict three line whip to CCM members of parliament to only one item of parliamentary business, namely the motion for the passage of the annual government budget. This is understandable, because a rejection of the government budget amounts to a vote of no confidence in the government, which then forces the President to dissolve parliament and call for a new general election. Apart from the budget, all other items of business have been placed in the lower level whip categories, which are described below.
Category II
This category includes those matters which are of lesser importance, or which do not threaten the survival of the government. The rules of the caucus in relation to such matters are far less strict, for they allow the ruling party MPs to speak their minds as they see fit. They can even express disagreement, without fear of attracting any disciplinary response from the chief whip. But if such matters have been presented to parliament by the government, the caucus rules still require its members to vote in support of the government. This level of whip is described as “the two line whip”. Motions for the passage of individual ministerial budgets are good examples of matters which fall in this category. This is why, for example, CCM MPs are free to “withhold a shilling” during such motions.
Category III
This category includes all other parliamentary business which has no significant impact on the operations of the government, even if the motion which introduced the relevant matter is defeated. In such matters, the caucus rules provide complete freedom of speech to its members, as well as freedom to vote in accordance will the individual member’s conscience and belief. One example of the application of this rule is the event which occurred in parliament in November, 1998; when a motion by a CCM member Hon. Parseko Vincent Kone, to oppose a section of a government Bill which was then under consideration by the House, succeeded in being passed with the active support of other CCM Members of Parliament. This resulted in the government withdrawing the entire Bill.
This is clear proof that the system actually works, provided it is put to practical application by the members concerned.
Adherence to these rules would greatly facilitate the operations of parliament.
A careful reading of these rules enables the reader to understand the reason why NEC was insistent that the CCM MPs must actively adhere to them, because they were designed to facilitate the smooth operations of our parliament. They provide for the proper conduct of its members during the time when CCM is in power, and in particular the need to enable its back benchers to participate fully in the deliberations of the House as representantive of the people. That is why, in practice, the application of the three line whip has been restricted to one issue only, which is the passage of the annual government budget. This is understandable, because a rejection of the government budget is treated as being equivalent to a motion of no confidence in the government, which has very serious consequences.
However, these rules have not overlooked the fact that CCM might one day be out of power, and they have therefore made appropriate provision for that eventuality.
This was done in realization of the Biblical saying that:-
“To everything there is a season,
A time for every purpose under heaven...
A time to gain
And a time to lose...” (Ecclesiastes, 3:2-11).
Conclusion.
In conclusion, it should be noted that the culture of multi-party politics puts the greatest emphasis and reliance on party organization and party discipline. It is generally recognized and accepted that the two fundamental features of any political party are organization and discipline. That is to say, organizing support in the country generally; and imposing discipline on its members.
This emphasis is based on the acceptance of the notion that political parties are absolutely essential to democracy, because of the fundamental principle that democracy gives the majority the right to govern, and that there is no acceptable way of establishing such majority without an open contest taking place between different political parties for the right to form the government, by presenting their different policies and programmes to the electorate, and each party trying to persuade the electorate to vote for its particular policy option.
After elections, competition moves to Parliament
But it must always be rembered that after the elections have determined the winners who will sit on the government side in parliament, and the losers who will occupy the opposition benches, multi-party competition now moves to parliament, and continues to take place therein. It must be emphasized that competition between political parties does not terminate with the elections. That competition continues, it only shifts to the floor of parliament, and continues to take place between members of the governing party, and those of the opposition parties. Hence, appropriate rules of competition are also required for this competition within parliament. This emphasizes the importance as well as the high value of the CCM parliamentary party caucus rules, and the need to adhere to them.
The purpose of this article is to give a correct and factual account of the proceedings of that particular meeting, in order to dispel certain fears arising from some misrepresentations of fact and allegations of improper motives on the part of CCM, such as the allegation that “it had moved to silence its MPs”; as well as other allegations, such as that “through its deliberations, CCM has breached the provisions of article 100 of the Constitution of the United Republic”, etc. But the main media focus has been centered on the Speaker, who is alleged to have been clobbered at the said meeting, on account of his declared war against mafisadi.
In view of these confusing reports, I believe it is important to explain what exactly happened in that NEC meeting.
The proceedings of the NEC meeting of August, 2009.
We will start by making available the relevant information regarding what actually transpired in NEC in relation to this particular matter.
The agenda item under discussion was, the current state of politics in the country (hali ya kisiasa), which covered a wide range of politically sensitive issues that have emerged since the last meeting of NEC. Among them was an item titled “Matamshi na vitendo vya baadhi ya viongozi wa CCM”, (the conduct of and utterances by some CCM leaders). Particular reference was made to certain unacceptable utterances which have been made by members of parliament, and others of the Zanzibar House of Representantives in their respective Houses, as well as the conduct of Speaker Samuel Sitta.
The major concern of the National Executive Committee at that meeting was the simmering problems which had recently emerged in both the Prliament of the United Republic of Tanzania and the Zanzibar House of Representantives, problems which are inimical to the interests and reputation of the party.
These problems relate to (a) the appearance of confrontational groups among the CCM Members of Parliament seemingly based on the question of Ufisadi; (b) the injudicious utterances and conduct of some members of those organs of state. Hence it was prudent and necessary for NEC to discuss these negative developments with a view to finding a viable solution, and taking appropriate remedial action where necessary.
The media reports do not reflect this primary concern of NEC, as they seem to concentrate almost entirely on the Speaker.
Framing the contested issues
As is normally done in court proceedings, the starting point is normally the framing of the issues to be considered during the hearing. Hence in order to facilitate a better understanding of the issues involved in this case, I will also start by framing the issues which are being challenged. These issues are framed on the basis of what has been extensively reported in the print media, because that appears to be the public perception regarding the proceedings of that NEC meeting.
The issues can be listed as follows:
(i) Did the discussions in the National Executive Committee of CCM amount to questioning the proceedings of Parliament, which is a breach of article 100 of the country’s Constitution?
(ii) Was it proper and justifiable for the CCM National Executive Committee to discuss the conduct inside Parliament of its MPs, including the Speaker? In other words, did such action constitute a breach of the law governing the powers and privileges of Parliament?
(iii) Was the Speaker “clobbered” in that meeting because of his front line position in the war against mafisadi?
(iv) Was it a move by NEC to silence its vocal CCM MPs?
In the light of the facts to be presented herein, this article presents a “no” answer to all these questions, as follows:
Issues (i) and (ii): Did NEC breach the law of Parliamentary privilege?
The CCM NEC has the necessary powers to discuss the conduct of its leaders.
Article 108 of the Constitution of Chama cha Mapinduzi (CCM) describes the general functions of NEC meetings, whereby sub-article 108 (8) prescribes the function of “kudumisha uangalizi juu ya vitendo vya wanachama na viongozi wa CCM”. i.e. to maintain a regular watch over the conduct and actions of its members and leaders.
The proceedings of that NEC meeting arose from the mandate provided by that article of the CCM constitution, i.e. the task of maintaining a regular watch over the conduct and actions of its members.
What the NEC actually did
Confrontation on the floor of the House is clearly bad conduct. But it is public knowledge that confrontational groups have developed among the CCM MPs on the issue of fighting ufisadi. These groups are described as consisting of those who are in the front line of the fight against Ufisadi on one side, and those who are condoning ufisadi on the other.
Hence, on the basis of the mandate given to it by the CCM constitution, the NEC meeting proceeded to discuss the conduct of certain CCM Members of Parliament, and certain others of the Zanzibar House of Representatives, who were scrutinized and criticized for failure to carry out their constitutionally binding obligation to safeguard the interests of their political party in the House. (see articles 15 (1), and 105 (3) (6) of the CCM constitution); while the Speaker was criticized for failure to observe, while guiding the proceedings of the House, the parliamentary conventions regarding the operation of the oversight function of parliament over the government in a multi-party Parliament. We will explain these conventions a little later in this article.
Secondly, the CCM MPs were collectively criticized for failure to make proper use of their CCM Parliamentary Standing Committee, or caucus, whose functions are clearly spelt out in the Rules of that Committee. The use of this Committee could have averted the unnecessary public confrontations among and between them, which have been taking place on the floor of the House. It was felt that this division into confrontational groups is what has made it difficult for them to resolve their differences through candid dialogue at meetings of their CCM parliamentary caucus, which in turn has led to undersirable accusations and counter accusations (malumbano) taking place on the floor of the House.
Question: that being the case, was there a breach of the law governing the powers and immunities of parliament? Or of article 100 of the Constitution of the United Republic of Tanzania?
The answer and the supporting evidence.
The answer to both questions is “no”, and that answer is supported by the following authorities:
In the English case of R.v Murphy(1885) 64 A.R.L. 498, it was stated as follows: ‘”what is meant by the freedom of speech and debate in the House is that no court proceedings having legal consequences against a member of parliament are permitted, which have the effect of preventing his exercising free speech in Parliament, or of punishing him for having done so. The freedom of speech and debate in parliament was first declared in Article 9 of the English Bill of Rights, 1689, and was intended to protect members of parliament from possible deprivation by the other Branches of the Government, namely the Crown or the Executive, and indeed the Courts”.
Artilce 100 of the Constitution of the United Republic of Tanzania is an exact reproduction of this declaration in the English Bill of Rights of 1689, and is therefore subject to the same interpretation.
It is worth mentioning also that the authorities quoted above have said further that “article 9 of the Bill of Rights prohibits the questioning of the proceedings of parliament in any place outside parliament; but those participants in its proceedings, principally the members of parliament themselves, but also any witnesses, petitioners, and others, are still subject to the disciplinary powers of the House for their conduct during the proceedings” This statement appears to separate the proceedings themselves from the conduct of its participants. In the instant case, the NEC meeting did not discuss the proceedings of parliament, but discussed only the conduct of its CCM MPs, as participants in those proceedings.
Elaboration of the parliamentary conventions which were adopted from Westminster
We stated earlier that during the NEC meeting of Chama cha Mapinduzi, the Speaker was criticized primarily for his failure, while guiding the deliberations of the House, to observe the parliamentary conventions governing the exercise by parliament of its control function over the government. We will now present the details of those conventions.
The system of parliamentary government which was adopted in Tanganyika at the time of independence was the typical British system commonly known as the “Westminster model”. This is because the country’s Constitution which came into effect on independence day was in many respects the standard form of constitutions which were drafted by the British colonial office in London for all the countries which achieved independence from British colonial rule at that material time. Hence, a Parliament of Tanganyika was established, consisting of Her Majesty the Queen, and the National Assembly. Even the Rules of procedure for the Tanganyika National Assembly were so designed as to follow very closely the procedures and practices of the British House of Commons. In fact, they included an omnibus provision which said thus:
“In all cases not herein provided for, resort shall be had to the usage and practice of the Commons House of Parliament of Great Britain and Northern Ireland”, and further that “in cases of doubt, the Standing Rules and Orders of this Assembly shall be interpreted in the light of the relevant usage and practice of the House of Commons”.
Thus, it is within the environment of British constitutional experience that the people of Tanganyika entered the independence period, and the relations between the National Assembly and the government were naturally shaped by this experience. It is therefore useful to take a brief look at the Rules and conventions governing this relationship.
It is stated in the relevant books of authority that “It is a basic principle of British Constitutional practice that the function of parliament is to control the government, but not to govern the country. British constitutional practice has two basic elements: an iniating and directing element, which is the cabinet of ministers; and a checking and criticizing element, which is the House of Commons. In the House of Commons, this is a function of Her Majesty’s Loyal Opposition. It is chiefly the opposition which prods, probes, critizes and exposes those in power. Indeed, our sytem is one of government of the people and for the people, but not by the people” (emphasis added) See A.H. Birch: The British system of government George Allen & Unwin, London,
The rule regarding government accountability.
The accountability of the government under the British system is said to be assured by two constitutional conventions: the convention that ministers are collectively responsible to parliament for the policy of the government as a whole; and the convention that each minister is individually responsible to Parliament for the work of his Department. The essence of the convention of collective responsibility is:-
(a) That members of the government must present a united front to parliament in defense of government policies, and
(b)That if parliament refuses to support the government on an issue of importance, the Prime Minister and all other ministers must resign.
The existence of this convention is an effective weapon which ensures parliamentary control of the Executive, for it influences the behaviour of the government, and may lead it to modify its plans, as indeed happened in 1965 when the Labour government decided not to go ahead with its declared policy of the re- nationalization of the steel industry.
The convention of individual responsibility means that the Minister in charge of a Department is personally answerable to Parliament for all the actions of that Department. Hence, Members of Parliament who wish to query the performance of any Department know that there is one person who cannot evade the responsibility of answering their questions; and the opportunity to do so is made available everday (except Fridays) during the first hour of business, which is reserved for questions to ministers.
Conventions which condition the British Parliament’s control of the government.
However, there are other parliamentary conventions which have an important effect on this control function of Parliament. They are the following:
(i) The loyalty and discipline of the ruling party back-bench members of parliament. This is not only because of the pressures that the party whips can bring to bear on the individual MPs, but also due to the existence of a team spirit that pervades the respective parliamentary parties. Because of this team spirit, the governing party’s back-bench members are normally most reluctant to do anything that would help the opposition to score a point.
(ii)The British tradition of political behaviour, or political culture, which assumes that because ministers are responsible for governing the country, they should be given ample opportunity to carry out that responsibility.
Consequently, it is agreed that parliament may indeed criticize ministers, but should not obstruct them.
Hence, for example, whereas the President of the United States of America has to accept that Congress will propably amend his budgetary proposals by altering his requests for the appropriation of money to the various Departments of State; the British cabinet is assured that its budget will go through parliament without any change at all. This particular convention is reflected in article 99 (2) of the Constitution of the United Republic of Tanzania.
A Summary
In summary, the applicable Parliamentary conventions or principles which must be observed, are following:-
(a) That the government is accountable to Parliament. Parliament may indeed criticize Ministers, but should not obstruct them in the performance of their government functions.
(b) That there is loyality, discipline and a strong team spirit among the back-bench MPs of the rulling Party.
(c) That Parliament’s role is to exercise the oversight or control function over the government, but not to govern the country.
In the context of Tanzania, in order to assist Parliament to discharge its oversight function properly, the Constitution of the United Republic does not stop only at making provision for this role of Parliament in its article 63 (2); but goes even further and provides the actual procedure through which this function shall be carried out, in article 63 (3) thereof. This is very helpful.
Issue (iii): What was the Speaker’s burden?
The basis of the criticisms directed to the Speaker was not his stand on ufisadi.
It is the non-observance of these conventions and principles which were dopted from the Westminster model a long time ago by the Tanzania Parliament, that was the basis of the criticisms directed to the Speaker by the National Executive Committee, and certainly not because of his stand regarding the war against Ufisadi, which is the false impression that seems to be rapidly gaining ground.
On their part, the CCM MPs were collectively criticized for their lack of party loyalty and disciplne which, under that convention, is routinely expected from the ruling party’s MPs, due to the team spirit which is presumed to exist among them.
As for the Speaker, his critics challenged his conduct of allegedly failing to observe and adhere to these parliamentary conventions. For example, reference was made to a publication titled A Parliament with Teeth, wherein the Speaker has written to challenge Party discipline as being an obstacle or hindrance to his reform programme.
This action by NEC can be faulted.
Although the action taken by NEC to discuss the conduct of the speaker and certain other CCM MPs can be defended to that extent, but it can also be faulted on other grounds, especially on procedural grounds. It can be faulted on procedural grounds because CCM has got good and well-established rules of procedure for prosecuting any of its members or leaders who are alleged to have breached the Party's code of ethics.
The said rules provide for the alleged wrong-doer to be given a list of charges against him, and given ample opportunity to answer those charges. It is only thereafter that the Party’s Ethics Committee convenes in order to examine the matter and make its own decisions and recommendations to NEC.
It is admitted that these procedural rules were not followed in the instant case.
Issue (iv): was the action by NEC a move to silence its vocal MPs?
The failure of CCM MPs to make proper use of the CCM parliamentary party caucus.
The other matter which was discussed by NEC relating to the conduct of CCM Members of Parliament, is their alleged failure to make use of the CCM parliamentary caucus to resolve their individual differences, instead of engaging themselves in confrontations on the floor of the House. This section will answer the last question in the list of the framed issues, namely, was the action by NEC a move to silence its vocal MPs?
In the light of what was actually said in that meeting, the answer is again “no”. There was no move at all to silence the CCM MPs. On the contrary, NEC was drawing their collective attention and reminding them of the existence of the CCM caucus rules, which were specifically designed in order to facilitate their meaningful participation as members of the ruling party, in debates on the floor of parliament.
Generally speaking, Parliamentary party caucuses are an integral part of the fundamental processes of a Multi-party parliament. In the Tanzania parliament, the party parliamentary caucuses are officially recognized by the rules (the Standing Orders) of the House. But the CCM parliamentary caucus has its own rules of procedure, whose main purpose is to enable its back bench members to participate fully in parliamentary debates. They were designed immediately upon entry into the multi-party political system, in order to make provision for the following matters:
(i) To provide a transparent procedure for conflict resolution among its members, in accordance with the CCM Guidelines of 1981, in order to avoid undersirable public confrotations (malumbano) between CCM MPs on the floor of the House; and
(ii) To provide a clear procedure which enables CCM MPs, during the time when their party is in power, to participate fully in the deliberations of the House, in order to remove the false perception that strict party discipline prevents them from doing so.
The objects and reasons for the caucus rules.
The main objective of these rules is to enable the back bench members of the governing party in parliament, just like their counterparts on the opposition benches, also to be heard by their constituents, or the people who voted for them to enter parliament. This is important because one way of ensuring defeat for a member of parliament in his constituency, is to deny him the oxygen of publicity regarding his work inside parliament.
“Publish or perish” is a well known slogan in University academic circles relating to the professional survival of University lectures, which commands them to “publish or perish”. This means that if he has no publications to show, his advancement to higher academic positions is barred. The equivalent of that slogan in relation to Members of Parliament would be: “Speak or perish” i.e. it is for their own survival as parliamentarians representing the people, that they must be heard speaking in parliament. If a Member of Parliament is not heard at all by his voters actually speaking in parliament, his re-election is endangered.
These rules were made after learning from the experience of other parlimentary jurisdictions, which shows that back bench members of the governing party can be “Whipped” to follow the party line on pratically every issue that comes up for debate in parliament, thus affording limited freedom of speech to its members. This is particularly so where the ruling party commands only a small majority over the opposition. The makers of the CCM Parliamentary caucus rules did not want this to happen in our Parliament.
How the rules are crafted.
The CCM caucus rules are similarly based on the British House of Commons experience, which operates at three different levels of the “whip”, depending on the type and importance of the business under discussion. The methodology used is to divide all parliamentary business items, or motions, into three distinct categories for purposes of the whip, as follows:-
Category 1
This category is reserved for certain specified matters which are of extreme importance to the survival of the government, such as motions of “no confidence” in the government which, if passed by the House, would force it out of power. It is only in very serious matters of that kind that the caucus rules attract the highest level of whip, which, in parliamentary parlance, is known as “the three line whip”, whereby each and every member of the governing party is required to support the government, and failure to do so would certainly attract disciplinary action against the offending member.
In the case of CCM, the practice has been to apply that strict three line whip to CCM members of parliament to only one item of parliamentary business, namely the motion for the passage of the annual government budget. This is understandable, because a rejection of the government budget amounts to a vote of no confidence in the government, which then forces the President to dissolve parliament and call for a new general election. Apart from the budget, all other items of business have been placed in the lower level whip categories, which are described below.
Category II
This category includes those matters which are of lesser importance, or which do not threaten the survival of the government. The rules of the caucus in relation to such matters are far less strict, for they allow the ruling party MPs to speak their minds as they see fit. They can even express disagreement, without fear of attracting any disciplinary response from the chief whip. But if such matters have been presented to parliament by the government, the caucus rules still require its members to vote in support of the government. This level of whip is described as “the two line whip”. Motions for the passage of individual ministerial budgets are good examples of matters which fall in this category. This is why, for example, CCM MPs are free to “withhold a shilling” during such motions.
Category III
This category includes all other parliamentary business which has no significant impact on the operations of the government, even if the motion which introduced the relevant matter is defeated. In such matters, the caucus rules provide complete freedom of speech to its members, as well as freedom to vote in accordance will the individual member’s conscience and belief. One example of the application of this rule is the event which occurred in parliament in November, 1998; when a motion by a CCM member Hon. Parseko Vincent Kone, to oppose a section of a government Bill which was then under consideration by the House, succeeded in being passed with the active support of other CCM Members of Parliament. This resulted in the government withdrawing the entire Bill.
This is clear proof that the system actually works, provided it is put to practical application by the members concerned.
Adherence to these rules would greatly facilitate the operations of parliament.
A careful reading of these rules enables the reader to understand the reason why NEC was insistent that the CCM MPs must actively adhere to them, because they were designed to facilitate the smooth operations of our parliament. They provide for the proper conduct of its members during the time when CCM is in power, and in particular the need to enable its back benchers to participate fully in the deliberations of the House as representantive of the people. That is why, in practice, the application of the three line whip has been restricted to one issue only, which is the passage of the annual government budget. This is understandable, because a rejection of the government budget is treated as being equivalent to a motion of no confidence in the government, which has very serious consequences.
However, these rules have not overlooked the fact that CCM might one day be out of power, and they have therefore made appropriate provision for that eventuality.
This was done in realization of the Biblical saying that:-
“To everything there is a season,
A time for every purpose under heaven...
A time to gain
And a time to lose...” (Ecclesiastes, 3:2-11).
Conclusion.
In conclusion, it should be noted that the culture of multi-party politics puts the greatest emphasis and reliance on party organization and party discipline. It is generally recognized and accepted that the two fundamental features of any political party are organization and discipline. That is to say, organizing support in the country generally; and imposing discipline on its members.
This emphasis is based on the acceptance of the notion that political parties are absolutely essential to democracy, because of the fundamental principle that democracy gives the majority the right to govern, and that there is no acceptable way of establishing such majority without an open contest taking place between different political parties for the right to form the government, by presenting their different policies and programmes to the electorate, and each party trying to persuade the electorate to vote for its particular policy option.
After elections, competition moves to Parliament
But it must always be rembered that after the elections have determined the winners who will sit on the government side in parliament, and the losers who will occupy the opposition benches, multi-party competition now moves to parliament, and continues to take place therein. It must be emphasized that competition between political parties does not terminate with the elections. That competition continues, it only shifts to the floor of parliament, and continues to take place between members of the governing party, and those of the opposition parties. Hence, appropriate rules of competition are also required for this competition within parliament. This emphasizes the importance as well as the high value of the CCM parliamentary party caucus rules, and the need to adhere to them.
source!!! CCM WEBSITE!!
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