President John Magufuli’s recent appointment of the Clerk of Parliament, Mr Stephen Kagaigai, once again raised the question on procedure in presidential appointments. The Head of State was quickly accused by his critics of making his pick without following due procedure, which was basically adhering to the appropriate legislation-the National Assembly (Administration) Act [Cap. 115 R.E. 2015].
Some Members of Parliament said the President specifically violated Article 87 (1) of the Constitution of 1977, which empowers the President to appoint the Clerk of the National Assembly from the list of persons holding a high office in the service of the Union Government. More so, the recently enacted National Assembly (Administration) Act (enacted in 2008), (fully cited above), procedurally requires the President to appoint the Clerk from amongst the three names of persons recommended to him by the Parliamentary Service Commission (PSC) established under section 12 of the Act.
While no clear statement from State House or the government spokesman was made with regards to the questions surrounding the appointment of Mr Kagaigai, specifically to explain why the President made such an appointment without first getting recommended names from the PSC as provided in section of 7 of Act, some lawyers defended the presidential appointment as above board.
They argue that it was made in accordance with Article 87 (1) of the Constitution. Nevertheless, it must be understood that the President is not only guided by what is contained in the Constitution only, but also by various legislations (statutes), sub-legislations and even rules for better execution of the Office of the President. In the words, substantive and procedural laws complement each other -- and everyone, including the President is obliged to follow both to the letter.
Breaching the law
The point here is that, while the Constitution is the main law of the land, providing the general principles on how the country must be run, there are also equally important statutes and rules that help to provide procedures for easier observation of the law, in this case with regards to decisions on presidential appointments. Where procedural law is made available and is pretty clear, the substantive law cannot be invoked without breaching the law in generality.
For appointments that the President is constitutionally empowered to make but no legal procedure is provided, the President is not necessitated to seek help from any authority; he may use any available vetting of his choice to get someone for appointment.
But it is different matter in cases where procedural law if available. It can be interpreted as breach of law on the part of the President to ignore procedural law. By and large, the question remains on procedure. Parliamentary laws on how to appoint the Clerk are clear. The question, therefore, is: Did the President intentionally ignore the procedural law? If he did, it is for reasons best known to him. Maybe it was an error of omission, but was it beyond correction?
Yet I personally think it wasn’t an error of omission. First, according to MP Zitto Kabwe, the same procedural law was applied in 2008 when the immediate past Clerk, Dr Thomas Kashililah, was appointed by then-President Jakaya Kikwete.
Second, the President should know better that before making such an important appointment for an executive office of a key pillar of the State, it was crucial to observe the procedural provisions.
Moreover, the language of the provision of the Act, which requires the Commission to recommend three names to the President for the appointment, is clear. It reads: ‘’Subject to Article 87 of the Constitution, the Commission shall recommend three names of persons who are suitable for appointment to be the Clerk’’.
Not only that. The statutory interpretation compels the legal fraternity to differentiate the words ‘shall’ and ‘may’ as they are used in constructing and wording of any section or statement of the Constitution or any statutory law. When the word ‘shall’ is used in wording of a sentence in a particular section of the statute, that means it is mandatory; it is a must. But when the word ‘may’ is used, such can simply means, it is not necessary; it might be done or not be done -- it is optional. This means then, that the PSC has a legal obligation to recommend to the President three names of persons from who the President must appoint one to be the Clerk. It is as simple as that.
So, why did the President fail to comply with this legal requirement? Since the word used in section 7 (3) of the National Assembly (Administration) Act, is ‘shall’, that obviously means, it is mandatory for him to appoint the Clerk from the three names of persons recommended to him by PSC. Doing the opposite was improper and inappropriate and can easily be interpreted as contempt of one pillar of the state by the other.