Tag Archives: Parliament

Tanzania – Is parliament waking up?

It is now old news that, since taking office in November 2015, President Magufuli has sought to reign in political dissent in Tanzania, be it from his own ruling party, opposition parties, the legislature, the media or private citizens. While many have denounced this authoritarian turn, there has been little by way of effective pushback.

That is starting to change.

It began with a dramatic show of strength from one of Magufuli’s close lieutenants, the Regional Commissioner for Dar es Salaam, Paul Makonda. Speaking at a televised press conference, Makonda brandished a list of 65 individuals who he claimed were in some way implicated in the drug trade. The list included everyone from prominent businessmen to religious leaders to pop music celebrities to the Chairman of Tanzania’s largest opposition party. All the individuals named were ordered to report for questioning at the Dar es Salaam Central Police Station.

The order, and the highhanded way it was enforced, prompted an immediate outcry from those whose names appeared on the list. The denunciation did not stop there, however. For the first time since Magufuli took office, parliamentarians from both CCM and the opposition parties united, unanimously resolving to summon Makonda to appear before Parliament.

It seems Makonda had crossed a red line. First, he overreached by targeting—en masse—a group of well-connected individuals from both sides of the political spectrum. While the opposition has had to contend with systematic repression, and individual politicians have also come under fire, Makonda’s smear affected a large and diverse group of prominent individuals, which made a coordinated backlash that much easier.

Second, Makonda’s actions fed into growing tensions between parliamentarians and Regional and District Commissioners. While there have always been disputes over the respective powers of MPs versus Commissioners, these have grown more acute under Magufuli. This is because the President has relied on his administrative appointees to implement the government’s local development agenda, which has led to the political marginalization of parliamentarians. Given the opportunity to shift the balance, MPs were quick to pounce.

It is unclear what comes next. On the one hand, Makonda is in a bad way. Amidst a sustained outcry, rumours of forged academic qualifications, and allegations of ill-begot wealth, the Commissioner has lost some of his nerve. After breaking down sobbing during a church service, he is now rumoured to have left on a two-month vacation to South Africa.

But whereas Makonda could fade into the background, the real concern here is Magufuli. Many were—implicitly or not—critical of the President for his role in nurturing a political environment where an official of Makonda’s rank could issue such a seemingly outrageous order. At the same time, Makonda’s intervention stoked divisions within government and CCM, divisions which Magufuli appears at increasing pains to contain. Take, for instance, his recent appointment of the former First Lady, Salma Kikwete, to a parliamentary seat. This unprecedented move has fuelled a wave of speculation as commentators mull whether the no-nonsense President is making concessions to appease potential detractors within his own party.

Whatever the realty of this situation, things continue to move fast on the ground. This coming weekend, an extraordinary meeting of the CCM National Congress is set to approve sweeping reforms to the party constitution. These will see the elimination of more than half of National Executive Committee positions as well as new rules barring CCM and government leaders from holding more than one official post. The response to these reforms, and Magufuli’s ability to manage a situation where party patronage has been vastly reduced, remains to be seen.

France – Government engages its responsibility on Sunday trading bill

Following a meeting of the Council of Ministers chaired by President François Hollande, Prime Minister Manuel Valls announced on Tuesday afternoon that he was invoking Art. 49-3 of the Constitution in order to try to pass the controversial Loi Macron, which, amongst other things, aims to liberalise the rules of shop opening hours on Sundays.

Art. 49-3 states: “The Prime Minister may, after deliberation by the Council of Ministers, make the passing of a Finance Bill or Social Security Financing Bill an issue of a vote of confidence before the National Assembly. In that event, the Bill shall be considered passed unless a resolution of no-confidence, tabled within the subsequent twenty-four hours, is carried as provided for in the foregoing paragraph. In addition, the Prime Minister may use the said procedure for one other Government or Private Members’ Bill per session.”

This wording results from a 2008 constitutional amendment. Prior to this time, the ability to use the Article was much greater with no restrictions on how many times it could be used or on what bills.

Following PM Valls’ announcement on Tuesday, the right-wing opposition put down a motion of no-confidence. The vote will be held this evening. The Front de Gauche (Left Font) block in parliament announced that they would support the motion of no-confidence, though individual deputies are unhappy with backing a right-wing proposal and may abstain. By contrast, the Greens have announced that they will not vote for it, though there are divisions within the parliamentary group. Currently, the government has a very slender majority in parliament. However, there were fears that between 40-50 government deputies might rebel and vote against the bill or abstain. This meant that it would most likely have been defeated. Now, given the use of Art. 49-3, as well as the position of the Greens and other deputies, it is highly likely that the government will survive the vote of no-confidence and that the bill will be passed.

Art 49-3 is so controversial partly because it raises the possibility of a bill being passed without it being formally approved by parliament and partly because even if there is a debate the bill may be passed not on its own merits but because of the desire to see the government remain in power. What is more, the use of Art. 49-3 immediately stops any debate in parliament and means that if the bill is passed, then it is passed in the form that it was tabled by the government. In all, it raises major concerns about the abuse of parliamentary democracy.

Art 49-3 was one of the most controversial constitutional innovations of the 1958 constitution. It was one of the features that weakened the power of parliament at the expense of the legislature. As recently as 2006 François Hollande, then in opposition, denounced it as a “denial of democracy’. The 2008 amendment was an attempt to reduce the controversy surrounding the bill. However, as this week’s events have shown, it can still be used to get the government out of a political hole.

In his analysis of French parliamentary procedures, John Huber argues that Art. 49-3 is used primarily as a signalling device to the public (p. 122). It allows the government to signal its policy preferences without risking its survival. What is more, he suggests that it is likely to be used on only the most controversial bills (p. 136). He also predicts that whereas government deputies and parliamentary groups are likely to oppose the bills in debates, they often abstain in the confidence vote itself (p. 137).

The use of Art. 49-3 in the case of Loi Macron confirms all of these intuitions. We have already seen that the Greens are likely to abstain and that PS deputies will fall back in line. What is more, the Loi Macron is clearly an important bill. In some senses, the bill is modest, only liberalising Sunday trading laws after certain conditions have been met. Nonetheless, it is symbolically important and has been criticised by the unions and the left. It must be remembered that the government has been accused of immobilism. The Loi Macron is designed to demonstrate that the government has a reformist agenda. Finally, PM Valls comes from the more social-liberal wing of the Socialist party. Having invested so much in the bill, not least 190 hours of debate in parliamentary commissions and the floor of the houses, he wants to see the bill passed and in a form that he recognises. PM Valls has presidential ambitions and wants to signal to centrist voters that he is someone they can trust.

The use of Art. 49-3 is probably something that the government did not want to have to resort to. There are political costs. It exposes the fact that it did not have a majority in favour of the reform. Nonetheless, it has calculated that benefits of using it outweigh those costs. PM Valls hopes to reap some credit from that calculation.

Tanzania – As corruption spreads under President Kikwete, Parliament quietly gains strength

The past year has been a politically tumultuous one for Tanzania. Controversy over a new draft constitution, uncertainty over coming elections, media censorship, and police violence were only a few of the issues to crowd headlines. Yet as one observer noted recently, ‘nothing galvanized public opinion and aroused such passion’ like the disappearance of $122m out of an escrow account held by the Tanzanian central bank.

The Tegeta escrow scandal, as it is known, came to a head late last year when the Tanzanian parliament—or Bunge—passed a resolution calling on President Kikwete to remove four high ranking officials from his government. This call led to a cabinet reshuffle last month in which Kikwete sacked his Minister for Land while leaving the Minister for Energy and Minerals to resign.

As temperatures cool, commentators are now beginning to put this latest cabinet makeover into context. An analysis published by The Citizen last week notes that Kikwete has made seven cabinet reshuffles during his nine years in office, which together led to the removal of 60 ministers. Prior to the Tegeta saga, the most notorious incident involved Kikwete’s former Prime Minister Lowassa, a man who was also the kingmaker credited with manoeuvring Kikwete into office. Lowassa was forced to resign in 2008 over the Richmond scandal. Crucially, the Citizen reports that all high profile reshuffles under Kikwete were in response to pressure from parliament over corruption.

Various explanations have been fronted to explain the increased frequency of cabinet reshuffles under Kikwete. These point to, among other things, the political engagement of a more youthful, media savvy populace as well as the tenacity of anti-corruption crusaders like Zitto Kabwe, current chairman of the parliamentary Public Accounts Committee (PAC). But if we take a step back, two important—and related—trends emerge. First, there is the increasing factionalism and competitive patronage within the ruling CCM party. Second, the steady institutionalization of the long-marginalized Bunge.

On CCM factionalism

The Chama Cha Mapinduzi party controlled Tanzanian politics throughout the one-party state period and has remained hegemonic since the first multiparty elections in 1995. As some analysts argue,[1] these elections were the first experience of ‘candidate centred politics’ in which aspirants’ strengths—both financial and strategic—were critical to the final election outcome. The new pressures resulted in greater competition both between and within parties—especially CCM—and the steady commercialization of politics.

While former president Nyerere—affectionately nicknamed Mwalimu or Teacher—still presided over national politics, internal CCM divisions remained contained. In particular, they did not greatly affect presidential nominations. This fragile stability crumbled, though, during the 2005 elections when money and networks pitted various CCM factions, and their preferred nominees, against each other. The fallout from this bruising competition reverberated throughout Kikwete’s first term in office, notably with the Richmond scandal.

Commenting on this new dynamic, a 2014 ODI report describes the ‘current political settlement ’in Tanzania as ‘an unstable alliance of public and private interest groups practicing competitive patronage around the ruling party and president.’ As such, the report argues that CCM ‘is likely to invest major resources in staying in power by buying support through a combination of natural resource plunder, tax exemptions for key supporters and the conduct of non-competitive tenders.’

While a majority still predict that CCM will have little trouble winning the presidential and legislative elections later this year, it is clear that such victories are coming at an ever higher cost. Political and financial improprieties perpetrated during elections now leave sitting governments with a messy trail of corruption scandals to contend with.

On a Bunge ‘with teeth’

There is no immediately obvious reason why CCM factionalism should go hand in hand with an increasingly assertive—and institutionally empowered—parliament. Yet that is the trend.

For much of the post-Independence period, the Tanzanian Bunge was viewed as weak, even by regional standards. While MPs in neighbouring Kenya would occasionally join together in criticizing the executive, the Bunge remained a neglected backwater. For ambitious individuals, it was a career dead-end—or at best a stepping stone—in a state dominated by government and party bureaucracies.

In the 1990s, two things began to change. First, parliament started to attract attention—particularly among businessmen—as a strategic way to access prized politico-economic networks. At the same time, the anticipation of a multiparty transition led a large cross-section of MPs to show more political independence, notably by pushing for constitutional amendments to strengthen legislative powers.[2]

This early parliamentary spring nevertheless did not yield immediate, lasting results. The two parliamentary sessions following the 1995 and 2000 elections remained muted. After 2005, though, CCM and opposition MPs in the 9th Parliament joined hands in pushing for an ambitious institutional reform programme. This included changes to the standing orders, such as enhanced committee oversight powers and new powers to table private members bills. While observers were initially sceptical, this momentum carried over into the 10th parliament, which again reviewed committee structures. The latest wave of reform led to the introduction of the Kabwe-headed Public Accounts Committee, now a hero of the Tegeta scandal saga.

Analysts have linked the earlier period of legislative assertiveness to a temporary decline in CCM party unity ahead of the 1995 transition. A similar story may well apply to the post-2005 House, this time roused not by the prospect of an imminent political transition but rather by the growing number of disgruntled CCM MPs, frustrated by internal party factionalism and further energized by their activist colleagues in the opposition. While the prospects for cross-party coalitions and parliamentary assertiveness do not extend to all issue-areas, there is a shared intolerance where corruption is concerned.

But does a strong parliament make a difference, really?

The combination of competitive patronage in CCM and a more assertive parliament certainly helps explain the sharp increase in cabinet reshuffles under President Kikwete. It is rather less certain whether the Bunge’s policing efforts are having much of an effect on the overall trajectory of Tanzanian politics. Where corruption is concerned, impunity is still the norm. Lowassa has bounced back from his Richmond shame and is now a leading candidate to become CCM presidential nominee for the 2015 elections. Meanwhile, after Pof. Muhongo resigned last month as Minister of Energy and Minerals, Kikwete quickly appointed him an ambassador.

But even with these apparent setbacks—which by no means constitute a full review of parliament’s impact—it seems likely that the Bunge’s actions may yet have a significant ripple effect. At the very least, it has helped draw public attention to issues of corruption. Ahead of elections, there is growing speculation about what this attention might yield in terms of growing opposition support. While many cannot imagine an end to CCM’s over 50 year stay in power—or be sure of what that might mean for Tanzania—recent events are fuelling a growing wave of speculation.

Posted by Michaela Collord

[1] The below is in part informed by a discussion paper delivered by Hon. Ezekiel Maige, Member of Parliament from 2005 to date.

[2] See, for instance: Killian, Bernadeta. “Comparing Performances: The 1990-1995 Single-Party Parliament and the 1995-200 Multi-Party Parliament.” People’s Representatives: Theory and Practice of Parliamentary Democracy in Tanzania. Eds. Mukandala, R.S., S.S. Mushi and C. Rubagumya. Kampala, Uganda: Fountain Publishers Ltd, 2004. 183-200. Print.

Presidential Ordinances in India: An Analysis

India has a parliamentary democracy. Ordinarily, laws are enacted by Parliament. But India’s Constitution also provides for an exception; namely, Article 123. It says that the President may promulgate ‘ordinances’ if at least one House of Parliament is not in session and ‘he is satisfied that circumstances exist which render it necessary for him to take immediate action’.

Five things about this exception are worth noting. In keeping with India’s Westminster credentials, the power to promulgate ordinances is exercised by the Council of Ministers; the latter decide if ordinances are necessary. Presidents formally promulgate them. They enjoy some discretion, the precise scope of which still remains unclear. Second, ordinances may be promulgated ‘except when both Houses of Parliament are in session’. That is, it may be done even if either the Lower House or the Upper House of Parliament is still in session. Third, ordinances are limited to circumstances when it is necessary to take ‘immediate action’. They are predicated on some form of legislative urgency and, unlike parliamentary legislation, require additional justifications. They cannot be promulgated merely because the Council of Ministers so desire. Fourth, and most importantly, ordinances are like parliamentary legislation; they have the ‘same force and effect’. They are not rules, orders, by-laws or delegated legislation of some kind. Rather, they are legislation proper. Consequently, there are no substantive limitations. Presidents are competent to do through ordinances all those things Parliament may achieve through Acts. Fifth, ordinances are not permanent. Unless converted into Acts through the usual legislative procedure, they ‘ceases to operate’ six weeks from the day parliamentary sessions resume.

This vesting of original legislative power on the executive is perhaps anomalous, but not necessarily radical. Under Article 123, Parliament, after all, retains final authority. It may approve ordinances or reject them. But that is a mistaken view. After nearly 65 years of use and abuse, interpretations and amendments, Article 123 stands transformed. It effectively functions like a second, or an alternative Parliament in India.

Take the first two conditions, i.e. the conditions that must be satisfied before Presidents may take recourse to ordinances. At least one House of Parliament should not be in session. But who decides whether Parliament is in session, or should be in session? India’s Supreme Court has taken the view that parliamentary calendar is outside the scope of judicial review. Minsters along with the Speaker and the Opposition must decide when and how frequently Parliament should convene. If both Houses are in session, can the Government simply prorogue one House to make an ordinance possible? The Supreme Court has said yes. Consequently, the executive is the sole judge of when the Houses of Parliament are in session, or when they should be in session. The Court will not review this matter. The second condition has attracted a similar fate. Presidents must be satisfied that ‘immediate action’ is necessary.  In 1970, the Supreme Court held that Governments are the sole judge of ‘necessity’; the courts will not get into this question. In other words, when a President on the advice of Ministers concludes that an ordinance is necessary, legally speaking, that is the end of the matter. He or she may promulgate an ordinance for any reason whatsoever, and that is valid. The two pre-conditions, therefore, are not really conditions in any meaningful sense of the term.

What happens when Parliament resumes? An ordinance may become an Act of Parliament. That is the best case scenario for the Ministers. But it may also be voted down. Ministers are also authorised to withdraw ordinances before they are voted in Parliament. Finally, ordinances may lapse; they may ‘cease to operate’ because Parliament takes no action on a given ordinance. Now say that an ordinance is presented before Parliament and it is voted down. Can the executive re-promulgate the same ordinance? In 1987, the Supreme Court answered in the affirmative. While re-promulgation is generally invalid, it may be constitutional under certain – mostly unspecified – circumstances. That judgment effectively makes a Parliamentary vote on ordinances redundant. Irrespective of whether Parliament wants that law or not, the executive can keep the ordinance in force simply by re-promulgating it.

Finally, what happens if Ministers stop re-promulgating a failed ordinance, and allow it to lapse? Like I mentioned earlier, it ‘ceases to operate’. But what does that mean? Imagine a situation where an ordinance was in effect for, say, six months. During that period many actions would have been taken under the ordinance. What happens to all those actions? Do they also ‘cease to operate’? In 1964, the Supreme Court said no; the actions do not get wiped out. All actions initiated or completed during the time an ordinance is validly in force remain permanently valid. What this means is that even if an ordinance fails, it can produce permanent legal effects. Consider an ordinance that repeals an Act, and then ‘ceases to operate’. If the Supreme Court is correct, it implies that the repeal by the Ministers shall become permanent. That is, by any definition, a radical outcome.

Taken together, these decisions imply that the President, acting on the advice of the Council of Ministers, may promulgate ordinances at any time for any reason. More importantly, such ordinances can produce permanent changes in the law even if they fail. Article 123, as a result, has morphed into a second Parliament, and more importantly, renders India’s ‘normal’ Parliament nearly redundant. Compared to the ‘cumbersome’ method of making laws through Parliament, ordinances are easier and quicker; they require neither debates nor votes. It should therefore come as little surprise that 11 ordinances have been promulgated on average every year since 1950. Article 123 is a handy legislative tool for the President, and has been abused more than it has been properly used.