Chama cha Demokrasia na Maendeleo (CHADEMA) epic legal battles to punish her allegedly errant 19 female MPs capsized in the High Court Dar-es-Salaam because they have a poorly written constitution which failed to align itself to the laws of land.
According to the CHADEMA allegations, the 19 MPs had digressed their constitution when they nominated themselves to represent fellow women in the national Parliament. CHADEMA argued that according to their constitution the nomination of women representation in the Parliament albeit was the BAWACHA affair but ratification of the CHADEMA central committee was paramount, and only the secretary general could forward the names of nominees to the NEC (National Election Commission).
The central committee decided to follow disciplinary measures as stipulated in their constitution to descend upon their 19 members. That began with a written charge and a right to riposte. Once the 19 members received their charge sheet responded in kind to ask for deferment that they may prepare their defence, and had asked for change of hearing venue after hostile crowds surrounded CHADEMA headquarters.
The 19 CHADEMA members feared for their lives when they exercised CHADEMA constitution to seek a reprieve. However, the CHADEMA politburo would not give them an opportunity to defend themselves as the 19 members had requested in writing, and proceeded to dismiss them.
Once the 19 members came to a realization that they have been axed remained unperturbed as they sought an appeal in the CHADEMA general council. The CHADEMA general council upheld the dismissal decision.
The 19 members not being undeterred by that final decision opted to seek legal redress. The keystone to the 19 members legal pursuit was that their constitutional right to a fair hearing were taken away in all organs that dealt with their discipline matter.
CHADEMA defense was that they acted according to their constitution so the dismissal decision was flawless. But after the High Court has gone through the submissions and evaluated the legal arguments ruled in favor of the 19 members.
The Gist of The Matter
The Court took swipe on CHADEMA constitution for being at variance with the laws of the land. The participation of the politburo that had dismissed the 19 members on the general council was fatal and offensive because CHADEMA had become a judge of his own cause violating the tenets of the doctrine of natural justice.
Since the High Court ruled the 19 members were deprived of their constitutional rights to a fair hearing the dismissal decision of the general council was overturned, and the 19 members were reinstated as bona-fide members of the CHADEMA delivering a telling blow to disqualify them as MPs which was the nefarious intention of the dismissal.
Can CHADEMA Reconvene The General Council Without The Politrubo?
CHADEMA legal team had informed the general public that was possible but we strongly dispute that is a correct position of the law. And, we shall elaborate on our legal reasoning.
Once the Court make a decision based on violations of the principles of natural justice two monumental precedence take effect and those are the doctrine of SPACKMAN and the ruling of RIDGE vs BALDWIN.
Recapitulation of the SPACKMAN doctrine this is what we learn:
“..if the principles of natural justice have been violated in respect of any decision it is immaterial whether the same decision would have been arrived at in absence of departures from the essence of justice that decision must be declared a no decision.” End of quotation but emphasis is solely mine.
Similarly, the ruling of Ridge versus Baldwin says that, and we quote:
:…Once it has been established the principles of natural justice have been violated the impugned decision is not merely voidable but it is void, abinitio.” End of quotation but emphasis solely mine.
Having gone through those pillars of pertinent legal positions we are now in pole position to say that any attempt by CHADEMA to resurrect dead bones will be illegal and a damning violations of the “DOCTRINE OF DOUBLE JEOPARDY” which basically outlaw anybody being punished twice for the same offence.
Legally speaking this matter is now pretty much shuttered, and the only sensible thing is for CHADEMA to desist from making a fool out of themselves to pursue a lost cause.
But, CHADEMA will do well if instead of squandering valuable time to pursue deadwood by fixing all areas in their constitution which offend the laws of the land like the politburo should be removed from disciplinary process lest it be judge on her iwn cause, and create an independent body within CHADEMA to resolve those inimical disciplinary matters lest it once again found to be unconstitutional.
Read more observant articles from Rutashubanyuma Nestory here.
