THE CABINET DOES NOT EXIST AND OFFICE OF PRIME MINISTER IS VACANT RETROSPECTIVELY SINCE 2020 AS DIRECT LEGAL CONSEQUENCE OF DECISION OF HIGH COURT IN BASHANGE VS ATTORNEY CASE.
"An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed."
Norton Vs Shelby County, 118 U.S. 425 (1886)
The provisions of
Section 44 of the National Elections Act, Cap. 343 being declared unconstitutional thereby
null et void ab initio and being struck out from constitutional text with immediate effect for being repugnant to, and inconsistent with, the provision of
Article 21(1) and (2) of the Constitution of United Republic of Tanzania, 1977 courtsey of the High Court constituted as constitutional court in the case of
Joran Lwehabura Bashange Vs Attorney General, Misc Civil Cause No. 19 of 2021, the net legal effect of this judgment is that that
Office of Prime Minister is Vacant retrospectively from the year 2020 by operation of law and also
the Cabinet stands dissolved retrospectively by operation of law within purview of
the Blackstonian Declaratory Theory and and within legal province of
the Void Ab Initio Doctrine and its subsets namely
"the Not Operative Principle" as well as
"the Non-Existent Principle".
In Tanzania,
the Blackstonian Declaratory Theory is embodied in decision of Court of Appeal of Tanzania in the case of
Freeman Alikaeli Mbowe & Attorney General Vs Alex O. Lema, Civil Appeal No. 84 of 2021 (among other legal authorities) which affirmed the common law principle that judicial precedent operates retrospectively as the court
does not enact the law rather the court does declare what has always been the correct position of the law from inception, from the day the law was enacted or purported to have been enacted, this rule is tailored under
the Declaratory Theory propounded by the famous English Jurist one
Sir William Blackstone in 18th century. Also, the landmark case of
Marbury v. Madison, 5 U.S. 137 (1803) too concedes to the Blackstonian Declaratory Theory as it says that legal province of the court is just to say what the law is, of which it has always been.
More so, provisions of
Section 44 of the National Elections Act, Cap. 343 after being declared unconstitutional are incapable of creating any public office of Member of Parliament elected from constituency retrospectively from the date such provisions were enacted by Parliament under
the Void Ab initio Doctrine and its subsets as baptised by Senior Counsel,
Audax Kaendaguza Vedasto in his book authored in 2010 titled
"the Life of an Unconstitutional and so a Void Statute" which he assigned the said subsets the names of
the Not Operative Principle (Retrospective Principle) and
the Non-Existent Principle
If we have to borrow wisdom of Supreme Court of USA in the case of
Norton Vs Shelby County, 118 U.S. 425 (1886) tailored within realm of
the Void Ab initio Doctrine and its subsets, we are bound to concede to the legal proposition that the provision of principal legislation struck out from the constitutional text for being declared unconstitutional and
null et void ab initio by court of competent jurisdiction
is not a law thereby such provision of such principal legislation confers no legal rights, imposes no legal obligations or duties, affords no legal protection,
creates no public office and it is in legal contemplation as inoperative as though it had never been enacted by Parliament.
This position taken in
Norton Vs Shelby County finds legal support in
A.A. Sisya & Others Vs Principal Secretary, Ministry of Finance & Another, Civil Case No.5 of 1994, among others.
This too means that subsidiary legislation short titled as
Tangazo la Kuchaguliwa kwa Wagombea Pekee wa Ubunge Katika Uchaguzi Mkuu wa Mwaka 2020 (G.N. No. 917 of 2020) is also
null et void ab initio as this subsidiary legislation was made by electoral authority under provisions of
Section 44 of the National Elections Act, Cap. 343 which no longer exist in eyes of law as the same was struck out from constitutional text by High Court on 29th March, 2023 through case of
Joran Lwehabura Bashange Vs Attorney General.
The said
G.N. No. 917 of 2020 in the Schedule thereto lists the names of 28 Members of Parliament who won parliamentary seats unopposed and uncontested as such candidates were the only candidates who were nominated by Returning Officers in their respective constituencies thereby deemed elected under provisions of
Section 44 of the National Elections Act, Cap. 343.
The provisions of
Paragraph 5 of the Schedule to
G.N. No. 917 of 2020 list Rt. Hon. Prime Minister,
Majaliwa Kassim Majaliwa (as he then was in eyes of law) as one of Members of Parliament who won parliamentary seats unopposed and uncontested in the 2020 General Election in his Ruhangwa Constituency.
Since provisions of
Section 44 of the National Elections Act, Cap. 343 are
null et void ab initio and were struck out from constitutional text by High Court with immediate effect automatically all persons who were deemed to have been elected members of Parliament under
Section 44 of Cap. 343 and gazetted under the same provisions of law are deemed to have not been elected from inception retrospectively from
16th October, 2020 when they were purported to have been declared elected by the National Electoral Commission through publication of their names as members of Parliament in
the Government Gazette, Issue No. 42, Vol. 101 dated 16th October, 2020.
Since, Rt. Hon. Prime Minister,
Majaliwa Kassim Majaliwa (as he then was in eyes of law) was not duly elected member of Parliament for Ruhangwa Constituency retrospectively from 16th October, 2020 as consequence of decision of High Court in
Bashange Vs Attorney General automatically Rt. Hon. Prime Minister,
Majaliwa Kassim Majaliwa (as he then was in eyes of law) also was not duly appointed Prime Minister retrospectively from date he purported to have taken and subscribed the oath of office of Prime Minister on
16th November, 2020 before the then President, Dr. John Pombe Magufuli.
Provisions of
Article 51 (2) of the Constitution mandatory requires the Prime Minister to be a Member of Parliament elected from constituency. Once Prime Minister ceases to be Member of Parliament elected from constituency automatically he ceases to hold Office of Prime Minister by operation of law under
Article 51 (2) of the Constitution.
Since, the Office of Prime Minister is vacant automatically the Cabinet stands dissolved by operation of law under
Article 57 (2) (e) of the Constitution of United Republic of Tanzania, 1977 retrospectively from date the Cabinet was constituted by the then President, Late Dr. John Pombe Magufuli.
At this juncture, I wish to state that my legal mind is alive on existence of three competing legal theories namely:
(1) Retrospective Approach
(2) Prospective Approach
(3) Hybrid Approach
However, I am the firm view that the position of the law rather the binding judicial precedents in Tanzania embrace
the Retrospective Approach which is founded under the Blackstonian Declaratory Theory and the Void Ab Initio Doctrine and its subsets namely "the Not Operative Principle" and "the Non-Existent Principle". Therefore, the correct position of the law in Tanzania is that judicial precedent operates retrospectively as the court
does not enact the law rather the court does declare what has always been the correct position of the law from inception, from the day the law was enacted or purported to have been enacted.
Now therefore, I wish to conclude that the net legal effect of the judgment of High Court in
Joran Lwehabura Bashange Vs Attorney is that that
Office of Prime Minister is Vacant retrospectively from the year 2020 by operation of law and also
the Cabinet stands dissolved retrospectively by operation of law from the day the Cabinet was constituted by the then President within purview of
the Blackstonian Declaratory Theory and within purview of
the Void Ab Initio Doctrine and its subsets namely "the Not Operative Principle" and "the Non-Existent Principle".
By
Lord of Bukoba
2nd day of April, 2023
I strongly support
Harold Sungusia's TLS Presidential Bid.
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