Swali kwa Dkt. Hosea: Rais Samia hana mamlaka ya kutangaza hali ya hatari kwenye sekta ya uchumi na kusitisha kwa muda haki ya kujumuika?

Mama Amon said:

Rais ametangaza hali ya hatari katika sekta ya afya. Umesitisha vifungu vya katiba juu ya uhuru wa kwenda popote mtu atakako na kukusanyika. Hajaomba ridhaa ya Bunge. Amekasimisha utekelezaji wa hali ya hatari katika sekta tya afya kwa Waziri wa Afya. Hujashangaa maamuzi haya. Rais akifanya hivyo unashagaa nini?

Nakukumbusha: Hali ya hatari inaweza kutangazwa katika senario zinbazopatikana kwa kujibu maswali yafuatayo:

1. Taifa zima kijiografia? (Y/N)
3. Sekta zote za maisha ya watu? (Y/N)

Ukifanya mchanganuo wa kimantiki kuhusu mambo haya unapata senario zifuatazo:

View attachment 1872578

Rais analazimika kutafuta ridhaa ya Bunge kwa options namba 1 na 3 pekee.

Halazimikikufanya hivyo kwa options namba 2 na 4. Tangazo la hali ya hatari katika sekta ya afya limefanyika kwa msingi huu.Ni vivyo hivyo kwa tangazio la hali ya hatari katika sekta ya uchumi.

Karibu

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Tatizo unalazimisha square ikae kwenye circle, hicho kitu hakipo. Utaratibu wa kutanganza hali ya hatari upo kwa mujibu wa Katiba, sio mapenzi yake. Hakuna kitu kama "hali ya hatari kisekta", unajaribu kumpa madaraka ambayo hana.

MtamaMchungu said:

Tatizo unalazimisha square ikae kwenye circle, hicho kitu hakipo. Utaratibu wa kutanganza hali ya hatari upo kwa mujibu wa Katiba, sio mapenzi yake. Hakuna kitu kama "hali ya hatari kisekta", unajaribu kumpa madaraka ambayo hana.

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Hujasoma emergency powers act na kuitafsiri sambamba na Katiba. Katiba imesimamishwa, kwa sehemu, kupitia Tangazo la serikali kuhusu hali ya hatari ktk sekta ya afya. Hakuna azimio la Bunge. How do you account for this phenomenon?

Mama Amon said:

Hujasoma emergency powers act na kuitafsiri sambamba na Katiba. Katiba imesimamishwa, kwa sehemu, kupitia Tangazo la serikali kuhusu hali ya hatari ktk sekta ya afya. Hakuna azimio la Bunge. How do you account for this phenomenon?

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Lete kifungu cha sheria, nimeattach Emergency Powers Act ya 1986. Soma uone utaratibu wake. Haifanywi kienyeji kama kusema "niacheni nijenge uchumi"

MtamaMchungu said:

Lete kifungu cha sheria, nimeattach Emergency Powers Act ya 1986. Soma uone utaratibu wake. Haifanywi kienyeji kama kusema "niacheni nijenge uchumi"

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Kwanza ni definitions muhimu at section 3:



Pili, madaraka maalum kuhusu mikutano haya hapa



Tatu, ni ufafanuzi wangu:

From the above, it appears to me that,

There are at least four aspects of an emergency condition.

1. The first is its temporal character: An emergency is sudden, unforeseen, and of unknown duration.
2. The second is its potential gravity: An emergency is dangerous and threatening to life and well being.
3. The third, in terms of governmental role and authority, is the matter of perception: Who discerns this phenomenon? The Constitution may be guiding on this question, but it is not always conclusive.
4. And fourth, there is the element of response: By definition, an emergency requires immediate action but it is also unanticipated and, therefore, cannot always be “dealt with according to rule.”

From these simple factors arise the dynamics of national emergency powers. These dynamics can be seen in the history of the exercise of emergency powers. But two facts are clear.

1. COVID-19 entails a state of emergency in the health sector
2. Economic recession from the GDP of 6.8 to the GDP of 4.8, that is -42% of economic growth, is another state of emergency.

The Tanzanian decisions to invoke emergency powers that were taken in response to COVID-19 have similarly been taken in response to economic recession, without parliamentary approval.

Our neighbours, Botswanam required a parliamentary vote to pass COVID-19 emergency measures. We did not.

So, the question is: are the Tanzanian measures taken in response to COIVID-19 and economic recession unconstitutional and illegal? The answer is either Yes or No.

I have given a negative answer and defended it by using a four-fold taxonomy of state of emergency.

You seem to reject it. Show me your analysis to defend your position.

Mama Amon said:

Kwanza ni definitions muhimu at section 3:

View attachment 1875275

Pili, madaraka maalum kuhusu mikutano haya hapa

View attachment 1875279

Tatu, ni ufafanuzi wangu:

From the above, it appears to me that,

There are at least four aspects of an emergency condition.

1. The first is its temporal character: An emergency is sudden, unforeseen, and of unknown duration.
2. The second is its potential gravity: An emergency is dangerous and threatening to life and well being.
3. The third, in terms of governmental role and authority, is the matter of perception: Who discerns this phenomenon? The Constitution may be guiding on this question, but it is not always conclusive.
4. And fourth, there is the element of response: By definition, an emergency requires immediate action but is also unanticipated and, therefore, cannot always be “dealt with according to rule.”

From these simple factors arise the dynamics of national emergency powers. These dynamics
can be seen in the history of the exercise of emergency powers. But two facts are clear.

1. COVID-19 entails a state of emergency in the health sector
2. Economic recession from the GDP of 6.8 to the GDP of 4.8, that is -42% of economic growth, is another state of emergency.

The decisions that were taken in response to COVID-19 have similarly been taken in response to economic recession.

So, the question is: are these measures taken in response to COIVID-19 and economic recession unconstitutional and illegal?

The answer is either Yes or No.

I have given a negative answer and defended it by using a four-fold taxonomy of state of emergency. You seem to reject it.

Show me your analysis to defend your position.

NB: Botswana required a parliamentary vote to pass COVID-19 emergency measures. We did not.

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Tatizo unakimbia kitu cha muhimu.....

We can talk about "hali ya hatari" mpaka mbuzi wataota mabawa...



Kuna utaratibu wa kutangaza.... na lazima uwe na justifications. Hakuna justification yoyote hapa, na legally hakuna kilichotangazwa. It would be political suicide kutangaza kwenye gazeti la serikali eti uchumi umeyumba mpaka unahitaji kuwa na hali ya hatari

MtamaMchungu said:

Tatizo unakimbia kitu cha muhimu.....

We can talk about "hali ya hatari" mpaka mbuzi wataota mabawa...

View attachment 1875395

Kuna utaratibu wa kutangaza.... na lazima uwe na justifications. Hakuna justification yoyote hapa, na legally hakuna kilichotangazwa. It would be political suicide kutangaza kwenye gazeti la serikali eti uchumi umeyumba mpaka unahitaji kuwa na hali ya hatari

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Response noted. I shall respond again, this time formally.

I propose to summarize my formal argument as follows:

1. The prosecution of Presidential emergency powers with respect to the banning of opposition public rallies in the name of the prevailing crisis of economic recession has been triggered by either the parliamentary vote, or the prevailing tradition of public acquiescence to past Presidential decisions that never enjoyed parliamentary blessings, or by arbitrary decision of the President.

2. It has been triggered neither by the parliamentary vote nor by arbitrary decision of the President.

3. Therefore, it has been triggered by the prevailing tradition of public acquiescence to past Presidential decisions that never enjoyed parliamentary blessings.

4. This conclusion is evidenced by the prosecution of presidential emergency powers with respect to various government's efforts to contain COVID-19 pandemic, under which presidential emergency powers were invoked.

5. This conclusion is further supported by the fact that, in other countries such as Botswana, presidential emergency powers against covid-19 pandemic were triggered by the parliamentary vote.

6. In our case, the government's tradition of circumventing parliamentary vote related to the triggering of presidential emergency powers and the subsequent public acquiescence, can only be analytically explained by a four-part taxonomy of state emergencies as the diagram below shows, namely:

• emergencies that are geographically nationwide and affecting all sectors of human life (1);
• emergencies that are nationwide and not confined to all sectors of human life (2);
• emergencies that are not nationwide and affecting all sectors of human life (3);
• D. emergencies that are not geographically nationwide and not confined to all sectors of human life (4);

Based on the constitutional phrasing, and the government's tradition of circumventing parliamentary vote related to the triggering of presidential emergency powers and the subsequent public acquiescence, only options 1 and 3 require parliamentary vote related to the triggering of presidential emergency powers. Other options do not. Check the diagram below for clarity.


I call upon constitutional lawyers to improve this argument, if there is such an improvement.

Mama Amon said:

Response noted. I shall respond again, this time formally.

I propose to summarize my formal argument as follows:

1. The prosecution of Presidential emergency powers with respect to the banning of opposition public rallies in the name of the prevailing crisis of economic recession has been triggered by either the parliamentary vote, or the prevailing tradition of public acquiescence to past Presidential decisions that never enjoyed parliamentary blessings, or by arbitrary decision of the President.

2. It has been triggered neither by the parliamentary vote nor by arbitrary decision of the President.

3. Therefore, it has been triggered by the prevailing tradition of public acquiescence to past Presidential decisions that never enjoyed parliamentary blessings.

4. This conclusion is evidenced by the prosecution of presidential emergency powers with respect to various government's efforts to contain COVID-19 pandemic, under which presidential emergency powers were invoked.

QED.

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Usituletee u Rais wa kifalme . Nchi ya wote hii . Kama katiba mbovu tuizungumze lini ?! Na hasa ukizingatia uchumi ni swala endelevu kama ilivyo katiba