Doctor Mama Amon
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- Mar 30, 2018
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Assessing President Samia’s Utterances to Elders on 02 December 2025: Constitutional Loopholes Under Articles 46(1) and 46(3) Permit Court Proceedings Against Samia
1. Abstract
“Do not pollute the land where you live, for bloodshed pollutes the land, and no atonement can be made for the land on which the blood is shed, except by the blood of the one who shed it. Do not defile the land where you live and where I dwell" --Numbers 35:33-34
On 02 December 2025, President Samia delivered a nebulous speech to Dar Es Salaam Elders. She confessed the occurence of mass killings in Tanzania through the use of lethal force by security organs against virtually unarmed demonstrators during the election week in October 2025.
Her speech reminded many of us of the evil things that are detestable to God as narrated in Numbers 35:33-34 and Proverbs 6:16-19.
These verses severally condemn President Samia types of politicians for their “haughty eyes, a lying tongue, hands that shed innocent blood, a heart that devises wicked schemes, feet that are quick to rush into evil, a false witness who pours out lies and a man who stirs up discord among brothers.”
In this essay, I argue that, constitutional loopholes under articles 46(1) and 46(3) of the constitution (1977) permit us to institute court proceedings against Samia for failing to prevent these extra-judicial killings.
2. Introduction
The teachers and students of international relations and conflict management program at The Mozambique-Tanzania Centre for Foreign Relations, located at Kurasini in Tanzania, have a common answer to the following question: What is the best way for disagreeing parties to deal with their differences without fighting?
They all agree that, negotiation as a discussion in which two or more parties attempt to reach an agreement through bargaining is the best option.
To this end, they are very familiar with the four distinctive negotiation types and alternatives. They are: BATNA, NOPA, WATNA, ZOPA.
BATNA (best alternative to a negotiated agreement) refers to the most profitable alternative option, which may be achieved by a participant, in case the negotiations do not succeed, and an agreement has not been arrived at between the parties.
WATNA (worst alternative to a negotiated agreement) is the opposite to BATNA in negotiation, meaning the worst option or outcome for a party, in case the parties fail to reach an agreement during the negotiation process.
ZOPA (zone of possible agreement) is is the range of negotiations where parties to negotiations can find common ground in terms of interests, needs and values.
In business, ZOPA is the range between the minimum the seller is willing to sell and the maximum the buyer is willing to pay.
It is the overlapping range where a deal benefiting both sides beyond their WATNAs is possible.
One of the basic conditions to determine ZOPA is the necessity of parties to know their alternatives, including optimal alternatives, best alternatives and worst alternatives.
NOPA (no possible agreement) is the opposite of ZOPA in a negotiation, which means that when the parties are unable to reach a zone of possible agreement (ZOPA), they happen to be in a negative bargaining zone (NOPA).
And WAP (Walk Away Point) is the pre-determined, non-negotiable limit—a price, condition, or set of terms—beyond which you will end discussions because accepting less would be worse than getting no deal, acting as your ultimate boundary to protect interests and avoid bad agreements, often linked to your Best Alternative to a Negotiated Agreement (BATNA).
ZOPA, BATNA and WATNA from the sales example
These are core terms referring to negotiation and reconciliation concepts under the Harvard Negotiation Method, which was developed by Roger Fisher and William Ury (1991).
They have done so, in their recent book "Getting to Yes: Negotiating Agreement Without Giving In," the second edition, as printed in New York by Penguin Books. (Book attached)
A simple process for determining your BATNA is the following: (1) develop a list of actions you might conceivably take if no agreement is reached; (2) improve some of the more promising ideas and convert them into practical options; and (3) select, tentatively, the one option that seems best.
By looking at President Samia’s speech to Dar Es Salaam elders 02 December 2025, it is obvious that the conflict between the government and Generation-Z in Tanzania is intractable. President Samia has declared that no ZOPA. She has declared a NOPA.
In effect, President Samia’s BATNA has declared her BATNA. Her BATNA is what I propose to call the “DECIDED MOPPERS” policy framework.
This framework has 14 dimensions, each dimension, being represented by one letter in the acronym “DECIDED MOPPERS,” namely:
- Detentive abductions;
- Extrajudicial killings and extralegal operations;
- Court capture and dramas;
- Inquiry commissions dramas;
- Deregistration of critical associations;
- Election rigging;
- Disinformation and mind capture;
- Media capture and intimidation;
- Outsourcing killers;
- Parliamentary capture and dramas;
- Police and paramilitary forces brutality;
- Embezzlement of financial and natural resources;
- Religious oppressions; and
- Security forces outsourcing for domestic oppressions.
So, the best way to assess the most controversial President Samia’s speech to Dar Es Salaa elders is to take one of the following approaches.
Either to agree with President Samia that she is absolutes above the law, as she insinuates; or to totally counter head-on President Samia’s insinuations that she is absolutes above the law; or to partially counter head-on President Samia’s insinuations that she is absolutes above the law. In this analysis, I will take the latter route.
At a constitutional level, there are two points that should be noted carefully by all vigilant citizens who hate presidential crown immunities which are entrenched in our constitution.
On one hand, article 46(1) prohibits any criminal proceedings whatsoever against the incumbent president “during the President’s tenure of office.”
An alternative to criminal proceedings is civil proceedings, which are not prohibited by article 46(1).
This implies that,, under article 46(1), “during the President’s tenure of office,” the incumbent president can be immediately sued for any civil proceedings for anything he does in his capacity as President while he holds the office of President.
And on the other hand, article 46(3) prohibits any criminal or civil proceedings whatsoever against the retired president for “anything he did in his capacity as President while he held the office of President.”
Conceptually, the law distinguishes between "commissions" and "omissions". Thus, "“anything he did in his capacity" is a commission, while "anything he did NOT in his capacity" is an omission. And, acts of suing the retired president for "omissions" are not prohibited by article 46(3).
This implies that, the retired president can be immediately sued by instituting any criminal or civil proceedings against him/her for “anything he did" NOT ALTHOUGH HE OUGHT TO HAVE DONE IT "in his capacity as President while he held the office of President,” due to negligence, say.
3. Speech Assessment
Despite the above stated facts which are overt and clear constitutional provisions, while addressing the Dar Es Salaam elderly citizens on 02 December 2025, President Samia Suluhu Hassan made many claims that are sufficient for supporting civil proceedings against her now, and can supporting criminal proceedings against her as a retired president for “things she did not do” during her presidency.
To this end, there is one disquieting utterance that invites critical scrutiny from the vigilant public.
Specifically, while responding to the charges against her government in relation to the alleged violations of domestic and international laws that prohibit extrajudicial killings, President Samia apparently invoked the outdated rule of the common law, according to which, a citizen may not seek redress in the court of law from the government for wrongs committed by the latter.
In this regard, President Samia apparently defended the government’s “shoot to kill order,” first, based on maxim which states that "the president can do no wrong," and second, based on maxim which states that "the president cannot be sued in international fora without one’s consent."
But is it true that “the president can do no wrong” and that "the president cannot be sued in international fora without one’s consent"? Evidence is not on Samia’s side.
Specifically, President Samia claimed that, under her capacity as the president, she can do no wrong, even if she instructs her subordinates to implement a “shoot to kill order” against demonstrators, simply because she believes that, her authority derives from God, and she must be left to stay in office until 2030 for that very reason.
The maxim that "the president can do no wrong," means that “the President has no liability for misadministration.”
It creates a certain screen behind which the President may be able to play dirty politics under the comfort that the president cannot be sued in his own courts.
Presidential crown immunity, which eliminates the president’s liability to be sued, and which are entrenched in some state constitutions is basically the application of the premise “the president can do no wrong.”
This implies that, the retired president can be immediately sued by instituting any criminal or civil proceedings against him for “anything he did" negligently omit to do "in his capacity as President while he held the office of President.”
In fact, the maxim that "the president can do no wrong," is wrongly based on the historical understanding that, in constitutional monarchies, the sovereign is the origin of the authority which creates the courts.
Thus the courts had no power to compel the sovereign to be bound by them as they were created by the sovereign for the protection of his or her subjects.
As the expression suggests, it is a doctrine that protected the sovereign from claims of unlawful behavior in carrying out the duties and privileges of sovereignty. However, many modern republican states have abrogated the rule, either partially or totally.
For example, in Tanzania, it has been abrogated partially as follows:
Article 46(1) prohibits any criminal proceedings whatsoever against the incumbent president “during the President’s tenure of office.”
This implies that,, under article 46(1), “during the President’s tenure of office,” the incumbent president can be immediately sued for any civil proceedings for anything he does in his capacity as President while he holds the office of President.
Article 46(2) prohibits any civil proceedings whatsoever against the incumbent president in respect of “anything done or not done by him” in his personal capacity as an ordinary citizen “whether before or after he assumed the office of President.”
And article 46(3) prohibits any criminal or civil proceedings whatsoever against the retired president for “anything he did in his capacity as President while he held the office of President.”
The second maxim that, "the president cannot be sued in international fora without his consent," precludes any law suit against the government in international fora unless it "consents" by binding itself under some international agreement.
It is based on the classical concept of sovereignty in the sense that a sovereign could not be subjected to the jurisdiction of another sovereign without his or her approval, since the two are equals international actors.
However, is a rush judgment to conclude that there is no form of legal control of the actions of the “President” in Tanzania, meaning that, the “President” cannot be prosecuted for one’s actions.
That is, President Samia rushed to wrongly conclude that the absence of criminal sanctions against the incumbent “President” does imply that the “President” is absolutely above the law.
The reasons are obvious. Like many other maxims, both rules lose much of their dogmatic character when they are stripped of their rolling phraseology and reduced to simple statements of law.
To hold that the president "can do no wrong" means that anything the president does simply is no legal wrong, hence no violation of the law at all.
This view fitted into the constitutional system of an unrestricted absolute monarchy, or into Hitler's government, whose legal theories proclaimed that everything the chief of state does is law automatically.
It has little room in a constitutional monarchy whose ruler is subject to the law. It is utterly out of place in a republican democracy, like Tanzania.
The statement that whatever "the president" does may not be regarded as a legal wrong furthermore means that where he, as usual, acts through subordinates, their wrongful acts cannot be imputed to him via the superior liability doctrine.
Moreover, the respondeat superior doctrine (Latin for "let the master answer") is a legal doctrine that makes employers liable for their employees' wrongful acts (torts) committed within the scope of their employment.
It allows injured parties to seek compensation from the deeper-pocketed employer, not just the employee, based on the idea that the employer benefits from the work and should bear the responsibility for harm caused by it.
For it to apply, the person must be an employee (not usually an independent contractor) acting within their job duties when the harm occurs, and the employer can be held responsible for negligence or sometimes intentional acts related to the job.
In short, the tort doctrine of “respondeat superior” means to hold an employer liable as if he had committed the tort himself, and the President is no exception.
Then, since the president would not be liable had he done the act himself it follows that he is not responsible for acts of inferior organs. In short, according to “the president does no wrong” rule, a governmental act is never a tort, at least as far as the government is concerned.
Similarly, the second rule, concerning the "sovereign" who cannot be sued in international fora without his "consent," is now outdated too.
President Samia forgot that the constitutional immunity she enjoys does not prevent Tanzania from fulfilling its obligations towards the International Criminal Court or other such courts under treaties which have been ratified by Tanzania.
When translated into twentieth-century legal language, the maxim that "the president cannot be sued in international fora without his consent," simply means that there cannot be a lawsuit against the government unless the law so permits. And the law does permit it in certain generally prescribed instances, such as under treaties.
At this point, it should be noted that, the gist of President Samia’s defense of the lethal force applied by her security organs is that, although outside of armed conflict, domestic and international law prohibit defendants from carrying out targeted extrajudicial killing of citizens, including violent protesters, targeted extrajudicial killing of citizens is exceptionally permitted under circumstances in which the targets present a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat.
Therefore, the concept of “extrajudicial killing” under domestic and international law needs to be properly understood as a precondition for criticizing Samia’s utterances.
Since ancient civilizations there have been many instances where one could find acts of arbitrary killings, such as stoning the perpetuator death, crucifying the perpetuator, burning the perpetuator alive to ashes, and burning the whole town population and property to ashes.
These atrocities were practiced as a tool of instilling fear and suppressing the people’s opinion against their rulers. During the said era the simple rule was that the “president can do no wrong.” The right to life was not recognized as a universal right at all.
But today, the right to life and the corollary right to be free from the arbitrary deprivation of life constitute the ground of all other human rights.
It is the supreme human right, since without effective guarantee of this right, all other rights of the human being would be devoid of meaning.
The prohibition of “extrajudicial killing” is an extension of the right to life norm and represents a manifestation of the right to be free from the arbitrary deprivation of life.
Its status is evidenced in both human rights law and the law of armed conflict, including in an overwhelming number of multilateral and regional sources.
In short, the right to life and the corresponding right to be free from the arbitrary deprivation of life provide the foundation for the prohibition against extrajudicial killing. This prohibition regulates the use of lethal force by law enforcement, security forces, and military personnel.
It applies in times of peace, as well as in times of armed conflict. While such killings are often captioned in different ways—murder, arbitrary deprivation of life, unlawful killing, summary execution, arbitrary execution, extrajudicial killing—they maintain a common core.
In effect, the prohibition against extrajudicial killing has two components: a substantive component and a procedural component.
The substantive component places limits on the use of force by states to prevent the arbitrary deprivation of life.
The procedural component requires states to conduct investigations and pursue accountability when there is reason to believe an arbitrary deprivation of life has occurred. An extrajudicial killing can thus implicate both components.
Specifically, under the a substantive component of extrajudicial killing, an extrajudicial killing occurs when:
(1) a public official or other person acting at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity;
(2) whose acts were intentional or negligent;
(3) and resulted in one or more deaths;
(4) and who knew or should have known that death may result from their acts;
(5) and who failed to comply with any relevant standards regarding the use of force, including the principles of necessity, distinction, proportionality, and precaution;
(6) and whose acts were not authorized by legal process or complied with the rule of law.
And the procedural component creates an obligation on states to investigate potentially unlawful deaths, assign responsibility and remedy violations.
When a state knows or should know that an unlawful killing has occurred, it is required to conduct a prompt, effective, impartial, and transparent investigation.
This obligation gives practical effect to the duties to respect and protect the right to life, and promotes accountability and remedy where the substantive right may have been violated.
Where appropriate, the procedural component also requires prosecution of perpetrators who commit an extrajudicial killing.
Where an investigation reveals evidence that a death was caused unlawfully, the State must ensure that identified perpetrators are prosecuted and, where appropriate, punished through a judicial process.
Finally, the procedural component requires states to provide the families of victims with a full and effective remedy, including reparations.
4. Conclusion and recommendation
Thus, in light of the utterances of President Samia on 02 Desemba 2025, I hereby propose that she has admitted to have failed to prevent extrajudicial killings during the general elections week in October 2025.
Accordingly, I make the following proposals:
One, at the right time, formal civil proceedings against President Samia should be instituted against her in light of the loopholes available under article 46(1), 46(2) and 46(3) of the state constitution (1977).
Two, immediate criminal charges against Samia should be instituted for her failure to properly advise President Magufuli concerning the evil of several extrajudicial killings and extralegal operations against Tundu Lissu and others that occured while Samia served as the vice president of Tanzania.
Three, right now, charges against President Samia related to crimes against humanity should be fast tracked under international human rights law, in light of the treaties to which Tanzania is a member.
And four, in the same vein, criminal charges should be framed and filed against the retired president Jakaya Kikwete, in relation to corruption, economic sabotage, and extrajudicial operations during his presidential tenure. The constitutional loopholes I have highlighted allow this to be done.