Though this article might seems to be biased to those politically motivated readers, it tends to give insights of law review of socio-legal, political and administrative incidences of the means through which the CHADEMA special seats -women were nominated and eventually sworn-in as members of Parliament, following the year 2020 General Election results for purposes of academic critical legal theory reasoning as Obadia Kajungu, Esq, explains:-
‘Hard Cases’ may be explained to mean Herbert L. A. Hart’s general name given to issues of law where facts do not fit the existing statutes or precedents, thus rendering decision makers to be generally surrounded by discretion as to who or against whom should benefit the decision.
Hart’s legal concept has faced serious criticism, including from Professor Ronald Dworkin, but, ultimately, Hart’s concept has remained invincible to the extent that modern philosophers of law are divided in this respect.
Although Prof. Ronald Dworkin has come out with his convincing “single answer model,” other philosophers, positivists, critical legal studies scholars, and legal realists have stagnated to “no single answer model” on the ground that “the legal doctrines are always indeterminate.”
When I was in university, taking my undergraduate studies, I used to imagine the possibility of the legal theories and concepts we were being taught by professors being applicable to our daily practical social and occupational lives.
I have worked in government organizations for an indeterminable period and, therefore, have a broad spectrum of experience in understanding the nature of governments and their relationships with citizens.
I came to realize Julius Stone’s words that the challenges of our profession are the processes of bringing legal practice to our everyday life for creating legal theories drawn from the experience of our own society or to bring legal theories which we studied in schools but which were drawn from the experience of exotic societies to our everyday life for legal practice at home.
I came to strongly hate the actions of universities, which in some cases required at least three years of working experience as a condition precedent to join for a master’s degree, but I came to realize later that experience matters in advanced academics rather than analytical, conceptual works above undergraduate education.
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The intention was to allow postgraduate students to make comparisons between what they studied at school and what they saw at work in the field as inputs for their master’s education, armed with their own inferences.
I realized further that this was also intended to allow such students to be creative in the sense that they could make theories out of their own experience and see whether they could apply theories they studied at school, which were inferred from exotic societies, to their local social life.
I was indeed too naïve to comprehend the objects of the then academicians requiring experienced students for advanced university studies until it was, but not too late.
Today, universities do not bother setting working experience as a prerequisite for a student to qualify for master’s education enrollment, presumably due to the lack of employment opportunities after degree certificates. By proceeding to insist on working experience, such university institutions will be denying many graduates who fell unlucky by missing jobs an opportunity for further studies.
I came to understand later that the requirement of working experience was important to enrol postgraduate students with a high intelligence quotient (IQ) and experience with empirical inputs from the field to test what theories provide.
Introduction
This article is intended to apply legal theories to test and disclose the legitimacy of appointed nineteen Special Seats—Women as Parliamentarians through conflicting administrative decisions made by the Office of Chama cha Demokrasia na Maendeleo (CHADEMA), the Office of the Director of Elections (the Commission), and the Office of the Parliamentary Speaker (the Speaker).
Under unprecedented circumstances, our existing Constitution, electoral statutes, and judicial precedents were silent in this respect, with no view to expressing an opinion on the position of the law under the circumstances at the end.
We have experienced in our country the controversial post-election socio-legal political issues of administrative dilemmas, which left more questions than answers in the diverse of ambivalent public opinions.
Following the completion of the 2020 national general elections in our country, necessary administrative decisions for restructuring national administrative and political systems were taken, as is constitutionally required in every general election.
This being the case, there arose some misunderstandings between CHADEMA, the Commission, and the Speaker, which, in principle, were the 2020 post-election results of discontent on the allegations that there were no free and fair elections due to alleged poll rigging. Opposition parties, led by CHADEMA, blamed the Commission for condoning the poll rigging alleged to have been made by Chama Cha Mapinduzi (CCM).
Facts
After the year 2020, Tanzania’s General Election, CCM rose to scoop majority polls of 92%, followed by CHADEMA, which scored 5%, and the rest of the political parties scored 3% of the polls.
Oppositions were not satisfied by the election results, which the Commission announced. CHADEMA, having won 5% of general election votes, was, pursuant to Articles 66 and 78 of the Constitution of the United Republic of Tanzania (the Constitution) and section 86A of the National Elections Act, Cap. 343, qualified to propose names of women candidates to be nominated by the Commission as Parliamentarians special seats – women.
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Because it was dissatisfied with the elections, CHADEMA opted not to propose the names of women for special seats to the Commission for nomination.
Later, the Commission, basing itself on the letter purportedly received from CHADEMA, nominated nineteen women from CHADEMA and deployed them to the Speaker, who swore in them. Eventually, they became Parliamentarians notwithstanding.
CHADEMA contended that it never proposed to any lady and alleged that the letter of the proposition was forged. However, as of today, it is unknown who forged the said letter, to wit, whether the Commission forged the letter so that it could fulfil constitutional objectives or whether the ladies decided to forge and enjoy the constitutional vacancies to which CHADEMA refused to give its blessings.
CHADEMA decided to revoke the Ladies’ membership from the party on the grounds of disciplinary misconduct and hypocrisy to the party.
The Speaker, notwithstanding that Article 67(1)(b) and 71(1)(e) of the Constitution, where the former Article dictates persons to belong to the Political Party so as to qualify as Parliamentarians/ while the latter expressly stipulates that the cessation of belonging to any political party disqualifies a person from continuing to be a Parliamentarian, decided to condone these constitutional provisions thus he proceeded to pronounce publicly that the Ladies shall remain Parliamentarians even though their party memberships were revoked.
The validity of these actions ranged from CHADEMA’s refusal to propose the women to the Commission’s decision to proceed to nominate Ladies devoid of the proposition by CHADEMA and the consequential swearing-in.
This was by the Speaker, and eventually, the Speaker’s utterance on his intended retaining as Parliamentarians, the Ladies whose party memberships were revoked under the silent constitutional and statutory provisions to cover this unprecedented event seem to have their answer in Jurisprudence and Administrative Law.
Considering the parables of events that appeared to turmoil our constitutional continuum in administrative decision-making, I would prefer a review of Hart’s concept of “hard cases” to test whether it fits into our local society.
This is by answering the events narrated in the above facts in relation to our constitutional and statutory lacunae in the light of the legality of decisions made by CHADEMA vis-à-vis legality of counter-decisions made by the Commission, the legality of decisions made by the Speaker and eventually the legitimacy of remaining Parliamentarians.
This is in relation to women MPs whose political party memberships were revoked to provide new insights into Tanzania’s legal reasoning.
Before we go deep into advanced laws, I must make it clear to everyone to agree that CHADEMA, the Commission and the Speaker are products of the Constitution, which are interdependent to meet constitutional objectives for the nation’s interests.
I want to mean that these offices have the same and equal constitutional recognition in the sense that every office has its constitutional complementarity to meet Tanzanian constitutional goals.
The Law
The decision of CHADEMA, by refusing to propose women to the Commission for nomination to be members of Parliament, was, in principle, an action of defiance of Article 78(1) of the Constitution, which reads in Kiswahili as follows:
78.—(1) Kwa madhumuni ya uchaguzi wa Wabunge Wanawake waliotajwa katika ibara ya 66 (1) (b), vyama vya siasa vilivyoshiriki uchaguzi, kwa kufuata utaratibu uliowekwa, vitapendekeza kwa Tume ya Uchaguzi majina ya wanawake kwa kuzingatia masharti ya uwiano wa uwakilishi baina ya vyama vilivyoshinda uchaguzi katika majimbo na kupata viti Bungeni. Tume ya Uchaguzi ikiridhika kuwa mtu yeyote aliyependekezwa anazo sifa za kuwa Mbunge itamtangaza kuwa amechaguliwa kuwa Mbunge, na masharti ya ibara ya 67 ya Katiba hii yatatumika kuhusu kuchaguliwa kwa mtu huyo kuwa Mbunge.
So, it is undisputed that CHADEMA, having refused to cooperate with its counterpart constitutional offices perhaps due to its discontent on general elections results while having qualified to propose names of special seats – women after achieving the set constitutional minimum standard of 5%, contravened Article 78(1) of the Constitution as cited above and also was contrary to Section 86A of the Elections Act, Cap. 343, which reads as thus hereunder:
86A- (1) There shall be women special seats in the National Assembly as provided for in Article 66 of the Constitution.
(2) A political party that contests for parliamentary election held after the dissolution of the National Assembly may propose and submit to the Commission the names of eligible women candidates for nomination to women’s special seats.
(3) The Commission shall specify a number of women candidates to be nominated by each political party.
(4) The names of women candidates proposed to the Commission shall be in the order of preference.
(5) The provisions of Article 67 of the Constitution shall apply to every woman who is sponsored by a political party.
(6) The Commission shall, subject to articles 66, 67 and 78 of the Constitution and in accordance with the order of preference indicated in the list proposed by each political party, declare such number of women candidates from the respective political parties as Members of Parliament special seats women.
(7) The Commission shall notify the Speaker of the National Assembly and the Secretary General of the respective political parties of the declaration.
(8) The list of names of women candidates proposed to the Commission by Article 78(4) of the Constitution by each political party for the General Elections shall, subject to Article 76(3) of the Constitution, be the same list that the Commission shall use for purposes of filling any vacancy in the office of Member of Parliament for women special seats during the whole period of the life of Parliament.
The decisions of the Commission and the Speaker by proceeding to nominate and swear in the Ladies were, respectively, assuming that it is proved that the letter of a proposition was indeed a forgery and thus void to the effect that there was no such a letter at all.
Therefore, it is undisputed that the Commission made the nominations and subsequent swearing-in by the Speaker in a real sense without the blessings of CHADEMA as required by the Constitution.
Again, the decision of the Speaker to pronounce that the Ladies will remain Parliamentarians notwithstanding the loss of their (Ladies’) party memberships was, in fact, in contravention of Article 71(1)(e) of the Constitution.
So long as the actions of both CHADEMA, the Commission and the Speaker were in contravention of the Constitution, therefore there remain two main issues.
One is that “whether the actions of the commission and consequential swearing in of the Ladies were lawful regard being heeded to the presumption of lack of a letter of a proposition by CHADEMA after refuting to had written such a letter”; and the other issue being “whether the Ladies are legally Parliamentarians despite that CHADEMA has revoked their party memberships.”
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Analysis
“On the one hand, legal doctrine seems indeterminate, but it may be maintained that even in ‘hard cases’, judges only ‘constantly talk about the answer they already knew in advance.”
Legal philosophers are divided in this respect. Dworkin provided a very convincing answer for the ‘single answer’ model, whereas both inclusive and exclusive Positivists and Critical Legal Studies (CLS) and Legal Realists presented plausible to the ‘no single answer’ model.”
In law, there is a distinction between arguments of principle on the one hand and arguments of policy on the other hand. Arguments of principle are arguments that appeal to ideas about fairness and rights.
Arguments of policy justify political decisions by showing that the decision advances or protects some collective goal of the community as a whole.
That is to say, the decision-making process is always a dual action in the sense that it tends to meet both the principles of law and public policy.
In going through this theoretical proposition, eventually, everybody will agree with me and bear in mind that no force of law can be effective without political powers behind it, and political objectives are part and parcel of the law.
In applying this principle of law, we must consider the object of Tanzania’s constitutional provisions, particularly Article 66(1)(b) and 78(b), and the decisions of the Commission and the Speaker as being based on the latent argument of principle but manifested on the argument of policy. Article 66(1)(b) reads in Kiswahili as follows:
66.—(1) Bila ya kuathiri masharti mengine ya ibara hii, kutakuwa na aina zifuatazo za Wabunge, yaani— (a) …………………..;
(b) Wabunge wanawake wa idadi inayoongezeka, kuanzia asilimia ishirini ya Wabunge waliotajwa katika aya ya (a), (c) na (d), itakayotajwa mara kwa mara na Tume ya Uchaguzi kwa taarifa itakayochapishwa katika Gazeti la Serikali baada ya kupata kibali cha Rais, watakaochaguliwa na vyama vya siasa vinavyowakilishwa Bungeni, kwa mujibu wa ibara ya 78, na kwa kuzingatia masharti ya uwiano wa uwakilishi baina ya vyama hivyo;
For this reason, within Article 66 of the Constitution and Section 86A of the National Elections Act, Cap. 343, we should unanimously agree that the special seats – women are the constitutional vacancies dedicated to the Commission so as to make the political parties not be complacent but work hard so as to be granted such seats as a motivation.
That is why the law has set a minimum target for the political party as a standard of motivation of at least 5% to qualify to nominate women to the Commission. In other words, the special seats women are not political party’s vacancy and to insist onto that effect, according to Article 78(1) it is in the discretion of the Commission to or not to nominate the Lady so proposed by the political party to be a Parliamentarian!
However, when the constitution was being amended to include the multiparty democratic system, women were still marginalized in political activities. Thus, gender matters in Tanzania’s politics need to be nurtured.
At the same time, the constitution intended to motivate newly established opposition parties by setting a minimum standard of achievement of at least 5% as per Article 78 and Section 86A of the National Elections Act, Cap. 343, to qualify for the award of special seats for women as a gift from the Commission.
In order to ascertain this constitutional objective and the intention of parliament behind the necessity of nomination of women special seats –women as parliamentarians, section 89 of the National Elections Act, Cap 343, creates an offence for any person who, in his official capacity resists the exercise of the nomination of the woman to contest for nomination for special seats.
The section provides as thus;
89(1) Any person holding any official office or acting in any official capacity who, in the exercise of functions of such office or in such official capacity, makes any statement or does any act with intent to discourage any other person from seeking nomination under this Act or to procure any person who has been nominated to withdraw his candidature, commits an offence and shall, on conviction, be liable to the fine not less than one hundred thousand shillings and not exceeding three hundred thousand shillings or to imprisonment for term not exceeding twelve months or to both.
What does this mean? It means that the actions of CHADEMA’s officers who, in their official capacity or in the capacity of their offices, fought to discourage the Ladies in their pursuit of being nominated or dismissed their party memberships so as to disqualify Ladies for their candidature attract jail or fine through criminal prosecutions.
In order to eliminate doubts, Article 78(4) of the Constitution dictates that, in case of a special seat—women vacancy, the Commission nominate Ladies as Parliamentarians whose names appear in its database (presumably, the law intended the proposing authorities not to abuse their powers by proposing Ladies with whom they have conflicts of interests) by virtue of having participated in constituency contestation for elections.
The challenge herein is the lacunae in the sense that at the time the Constitution was being amended and passing new laws to invite a multiparty system, the lawmakers did not foresee that they could expressly include in the Constitution or statute (lack of statutory foresight) the possibility of occurrence of political radicalism in the future, in the sense that there is no any judicial precedent or constitutional or statutory provision as to what should be done in case any qualified political party decides to be radical and refuses to or strikes the discharge of its constitutional obligations by not proposing the names of women for special seats – women.
The Constitution or statutes are also silent as to what should be done in case the Commission nominates any person special seats – women when the political party has not proposed any.
Under the circumstances, the Commission, by proceeding to nominate ladies’ special seats while CHADEMA had refused to propose, did not contravene any existing provision of the Constitution or any law because the Constitution is silent to the effect that the Commission was surrounded by discretionary choice as to whether to nominate or not to nominate.
Having received the Ladies’ nominees whose names were sent by the Commission, the Speaker’s duty was only to swear them in because he had no mandate to question the legality under which they were obtained unless any person intending to object to their Parliamentarianism had filed a formal objection to that effect, something which was not done anyway.
In administrative law, administrative decisions made in environments of legal lacunae or ambiguities are called ad hoc decisions. The administrative body becomes filled with discretion, provided that such discretion must be lawful and reasonable (test of legality and reasonableness). Decisions in such environments are sub-legislative choices of policy or, in other words, are termed decisions ex post facto.
Administrative discretion refers to the flexible exercising of judgments and decisions allowed by public administrators.
In the American decided case of Citizens to Preserve Overton Park Inc. vs Volpe, 401 US 402 [1971], in Memphis, Tennessee, citizens claimed that the Secretary of Transportation decided to construct a highway where Overton Park was located, therefore, violated the statute passed by the Congress but the Supreme Court of the United States, under Justice Burger upheld the feasible and prudent clause despite that the decision of Secretary was contrary to Department of Transportation Act, 1966.
This means that, although in exceptional circumstances, administrative bodies are justified in disregarding statutory provisions to serve public interests.
Philip Cooper defines administrative discretion as the “power of an administrative body to make significant decisions that have the force of law, directly or indirectly, and the Constitution, statutes, or other sources of black letter law do not specifically mandate that.”
So, even though it seems that the decisions of the Commission and the Speaker were biased under the circumstances, following the fact that there was no provision of the Constitution or statute to warrant what the decision ought to be done, it, therefore, remains as to whether the so-doing was reasonable and necessary; thus, the rule of necessity comes into play.
The rule of necessity is a judicial doctrine that permits judges or administrative agency decision-makers to decide a case even if they ordinarily would be disqualified due to bias or prejudice. The rationale of the doctrine is that if no other person can make the decision, let the biased person decide the case rather than make no decision at all.
The act of the Commission to nominate Ladies and eventually swearing them in by the Speaker was, even though CHADEMA did not propose them, a reasonable and necessary step to rescue the constitutional objectives because so long as the constitutional provisions were silent under the circumstances, there is no any reasonable administrative body who would wait until the Constitution is amended in order to proceed with government actions to meet the public objectives implied in the Constitution.
Under the circumstances of the lacunae, the Commission had two options: whether or not to nominate after CHADEMA refused to propose. Now, it could reasonably be necessary to nominate because failure to do so was to offend the Constitution, which gave vacancies for women participation in national politics for gender equality.
The action of CHADEMA by not proposing the names of women was calculated to frustrate the constitutional continuum. It, therefore, contravened the Constitution and the National Elections Act to the effect that every subsequent administrative decision done by the Commission and the Speaker was justifiable to rescue the public policy under the doctrine of necessitatis non habet legem (necessity knows no law). This Latin legal maxim is a defence in public law where the state or public body may take necessary measures to rescue public interests or to meet public objectives!
In this situation, the law never demands whether or not it is written, just as Jesus Christ, the legal positivist, insisted in the Bible when he was being tempted by Satan.
However, the lack of a proposition letter, because CHADEMA denied it, thus assuming it is proved as being forged, renders the said letter void as if it never existed in the sense that the government cannot act upon a forged document, there is a necessary implication under Article 78(4) of the Constitution that by refusing to propose any woman as required, all positions of special seats – women for CHADEMA were presumed to had been fell vacant.
Thus, according to the Commission’s database, the Commission was justified in nominating the nineteen (19) women who participated in constituency election campaigns. With further necessary implication under Article 78(4), the Constitution did not intend the special seats for women to remain vacant as it rally states in Kiswahili.
Article 78(4); Orodha ya majina ya wagombea wanawake iliyowasililshwa kwa Tume ya Uchaguzi na kila chama kwa ajili ya Uchaguzi Mkuu ndiyo itakayotumiwa na Tume ya Uchaguzi baada ya kushauriana na chama kinachohusika, kwa madhumuni ya kujaza nafasi yoyote ya Mbunge wa aina hii inapotokea wakati wowote katika maisha ya Bunge.
By contravening Article 78(1) of the Constitution and sections 86A of the National Elections Act, Cap. 343, in physics, one might say that CHADEMA, for not giving complementarity or cooperation to the constitutional objectives, disturbed the (constitutional) equilibrium, just as throwing a stone in the ripple tank, thus causing waves, or in other words, disturbances so that all subsequent Constitution non-compliances by the Commission and the Speaker were remedial necessities.
The Speaker’s swearing-in of those Ladies was not an option but mandatory after the Commission had nominated and deployed them to him unless there was any formal preliminary objection raised by any person challenging their eligibility to be sworn in.
Having seen that the Commission and the Speaker have taken necessary actions to rescue the public objectives implied in the Constitution, CHADEMA, in order to ensure that things remain frustrated against the government, opted to terminate the Ladies’ party memberships so as to maliciously disqualify them from being Parliamentarians under Article 71(1)(e) of the Constitution.
Here there are conflicts of laws between the CHADEMA rules of conduct and the Constitution of the United Republic whereby the provision or underlying objectives of the Constitution will, of course, prevail on the one hand and the principle of illegality, in Latin maxim referred to as ‘ex turpi causa non oritur actio’ sometimes referred to as “ex dolo malo non oritur actio” to mean that no right of action can arise from unlawful acts shall apply, on the other hand!
“None shall benefit from his own wrong.” This was the practical application of the principle of ex turpi causa non oritur actio in the decided case of Riggs vs Palmer 115 N.Y. 506 (1889). In that case, the Supreme Court of the United States, affirming the decision of the Court of Appeals of New York, held, “the Court must deny succession to a son who killed his father so that the testament would be effective, even though the will (testament) was validly executed in son’s favour by his deceased father.
Thus, CHADEMA’s refusal to cooperate for constitutional objectives cannot be a ground for their constitutional rights or blessings for CHADEMA’s intra-party administrative measures against the nineteen (19) women.
Having considered that the laws should be consistent, therefore, if the action of CHADEMA to refuse the proposition of women for the nomination was a derogation of their constitutional obligations and contrary to sections 86A and 89(1) of the National Elections Act on the one hand and the subsequent administrative decisions by the Commission and the Speaker were meant necessary measures to cure constitutional objectives.
On the other hand, there remains an inference that CHADEMA’s actions were void ab initio, and therefore, the Ladies’ cooperative efforts to meet the public objectives implied in the Constitution to promote marginalized women’s gender in political activities, although against the interests of CHADEMA, were lawful actions in themselves.
For this reason, the action of termination of the Lady’s party memberships was based on the illegalities for its being maliciously calculated to sabotage constitutional goals to the extent that the action of CHADEMA was retrospective, mala fide (based on bad faith) and therefore, the said ladies are lawfully remaining in Parliament notwithstanding.
To put this fact clear the nominated nineteen(19) CHADEMA Ladies cannot be condemned for the reason that they were cooperative to the public objectives implied in the Constitution.
However, CHADEMA was aggrieved to that effect, and in the law of torts, CHADEMA suffered a ‘damnum sine injuria,’ a Latin legal maxim that means that even if somebody was hurt by another person’s actions, such another person is not legally responsible because he never infringed any legal right vested in somebody so hurt.
The basic principles of Constitutional interpretation are mainly “literal” and “broad meaning”. Based on the fact that there weren’t express provisions in our Constitution to such events that arose after the 2020 general elections, the principle of broad meaning to interpretation, in my opinion, is the best option to draw intended inferences from it, as a mother law, by basing on its broad underlying values from which legislations, customs, precedents and other moral and political judgments would derive their justifications.
Even if erroneous, administrative decisions remain valid unless challenged in Court through Judicial Review. Therefore, the Commission and the Speaker are already functus officio, which means that an administrative officer who has made a decision on certain facts’ mandates has expired in the sense that he cannot go back to revoke his own decisions. At this juncture, the Commission and the Speaker cannot reverse their decisions or utterances because the issue is already closed.
In Courts of law, the doctrine of functus officio refers to a judge or any other person whose decision-making duty or authority has expired and come to an end after making a decision to the extent that the law prohibits reopening cases that have already been decided.
In the case of Malik Hassan Suleiman vs Serikali ya Mapinduzi ya Zanzibar [2005] T.L.R. 236, the Court of Appeal of Tanzania held that:
“A court becomes functus officio when it disposes of a case by a verdict of guilty or by passing sentence or making orders finally disposing of the case, in this case, the learned judge became functus officio when he passed the judgment on 19th February 1998 and he was not clothed with the necessary jurisdiction to review his own decision subsequently”.
The doctrine of functus officio is one of the mechanisms by means of which the law gives expression to the principle of finality in the sense that once a decision maker has pronounced a final decision or order, his authority to correct such decision expires so as to prevent intolerable uncertainties in government administrative or judicial decisions.
In this regard the Speaker cannot revoke his statement that “the Ladies will remain Parliamentarians even though without any political party memberships;” and this decision, which is otherwise functus officio, is binding against the whole National Assembly because none questioned the same.
On the other hand, by terminating those Ladies’ Parliamentarianism, the Speaker will have wavered his defence of acting in the necessity for public interests. Thus, instead, it will be his confession that he intentionally or negligently contravened the Constitution or abused his office, something which may attract his impeachment by the very National Assembly.
Except the said Ladies are advised to make necessary legal measures to reconcile or quash the decision of CHADEMA either by way of appeal within the party or by way of judicial review, in order to do away with the possibility of being disqualified as Parliamentarians in the 2025 general elections, be it by constituency or by nomination after the expiration of this ad-hoc Parliamentarianism which they are enjoying today.
Conclusion
Following this analysis, I strongly believe that the CHADEMA Special Women MPs are lawfully in Parliament within the ambit of the underlying moral and political objectives of our Constitution until the Parliament is dissolved in 2025.
This is because they were so nominated under the circumstances amounting to a state of emergency and thus entitled to be termed as “ad hoc Parliamentarians” to meet the political objectives of our constitution for public interests, which are, among other things, gender equality in national political affairs, a raison d’être of our Constitution.
To justify this point of view, one should revisit Prof. Ronald Dworkin’s definition of law to mean beyond the scripts of black-letter laws, where he says: “Law is a body of rights given expression to in legislation, custom, and precedent, plus the political and moral rights that are implied by the political theory that best explains and justifies the existing legislation, custom, and precedent.”
So many unprecedented social events not expressly covered in the Constitution, statutes, or judicial precedents are expected to arise sporadically in the human community’s lifetime. No Legislature worldwide can cover every unforeseen future event in the statute.
Therefore, not every uncovered new event must necessitate the amendment or passing of a new Constitution or statute because doing so may lead to costly daily printing of such laws and the unnecessary waste of public funds instead of applying legal creativity by decision-makers.
God bless Tanzania.
