Possi pick as diplomat triggers hot legal debate

Dodoma. There was confusion yesterday as legal experts and ordinary people debated the appointment of nominated MP Abdallah Possi as an ambassador, with questions  whether his new status safeguards the constitutional requirement.

Some analysts feel the appointment announced Thursday night was meant to undo a constitutional breach.

On Monday, President Magufuli picked University of Dar Salaam law professor Palamagamba Kabudi and CCM Parents Wing chairman Abdallah Bulembo as lawmakers, bringing to eight the total number of nominated MPs. Six of them are men.

The Constitution stipulates that the President nominate the maximum of 10 MPs,  at least five of them being women.

Critics say the nominations breached Article 66 (1) (e) of the  Constitution.  The minister for constitutional affairs Harrisson Mwakyembe however was  however quoted as saying that the President was within his right to make the appointment.

The Chadema Women Wing  (Bavicha) threatened to go to court to block the swearing in of Prof Kabudi and Mr Bulembo.

As criticism grew the President on Thursday named Dr Possi as a diplomat.

However, lawyers say a sworn-in MP does not cease to hold such a position by simply appointing to an executive  post.

“The appointment [of Dr Possi] is not a cure. The President was supposed to invalidate the  nomination of his two latest choices who have not been sworn in,” says Tanzania Constitutional Forum Deus Kibamba.

According to Mr Kibamba, an MP who has been sworn-in and already enjoying parliamentary privileges and immunities cannot be stripped of his/her parliamentarianship by being appointed to an executive position.  

Citing Section 71 (g) of the Constitution, Mr Kibamba argues that the only thing Dr Possi can do is to write to the Speaker of the National Assembly to resign as an MP.

The section says: “Where a Member of Parliament does not cease to be a Member of Parliament…and if he does not sooner resign or die, then he shall continue to hold office as Member of Parliament until the next general election.”

Yesterday, National Assembly Speaker Job Ndugai told The Citizen Dr Possi was still an MP.

“Perhaps he [Dr Possi] will issue a statement on his fate before the start of the next parliamentary meeting [January 31]. Let’s wait and see. Again even in the other appointment (ambassadorial) there’s an oath of office, and he’s yet to take it. So far, he is still an MP,” said Mr Ndugai.

Dr Possi himself hinted to The Citizen it would not be possible for him to hold two positions.

“Do you think I will keep holding the two positions? No. And there’s no need to speculate what will happen next.  Time will tell. Until Monday each and everything will be known.”

Many viewed Dr Possi’s new appointment as the President’s effort to reduce the number of nominated male MPs to five to meet requirements of the constitution.

Two Tanganyika Law society (TLS) senior officials who asked not to be named said Dr Possi’s new appointment was not a remedy at all.

“Essentially, as we speak Dr Possi is still an MP, until he is sworn in to his new position or he decides to resign,” he said. “However that doesn’t change the fact that he is among the eight presidential nominees,  meaning even if he is losing his parliamentary membership on whatever reasons it doesn’t mean his position is vacant. The President has already appointed eight MPs and has only two remaining people to pick.”

The other TLS official argued: “It is like having 10 cakes and eating eight, you can’t have back any cake that you have already eaten. We are in a constitutional crisis, and the more the President tries to rectify it he is complicating things.”

TLS President John Seka told The Citizen that they were closely following up on the matter and TLS Governing Council was to meet yesterday evening to discuss the matter and issue its position.

Since Dr Possi’s appointment was made public, concerns were raised if the President had constitutional powers to invalidate one’s parliamentary membership.

Legal and Human Rights Centre executive director Helen Kijo- Bisimba said Dr Possi’s membership in Parliament had not ceased by being appointed ambassador.