By Pius Msekwa
(continued from last week)
WE concluded last week's article on Immunity, Parliamentary powers and privileges, at the point of the Court of Appeal's judgement, which severely criticised three MPs and two Officials who failed to seek special leave to enable them to give evidence in court, in clear breach of section 9 of the Parliamentary Immunities, Powers and Privileges Act, 1988.
It is perhaps necessary to clarify that the words 'Parliamentary privilege' refers to certain specified rights which members of Parliament are entitled to enjoy, such as freedom of speech and debate inside Parliament; and 'Parliamentary immunity' refers to a set of specified exemptions from the application of the ordinary laws of the land; such as the exemption from legal proceedings for words spoken in the House; and the immunity from arrest for civil debts. It is also important to underscore the point, that parliamentary 'privileges and immunities' are granted to MPs solely for the purpose of enabling them to perform their duties 'without let or hindrance'.
And further that these are strictly confined only to occasions when the MP is actually taking part in a proceeding of the House; which is defined as follows: "An individual MP takes part in a 'proceeding of the House' usually by speech, but also by various other recognised kinds of formal action; such as voting, asking questions, giving notice of a motion, presenting a petition or a report from a committee."
That is to say that in order for these privileges and immunities to apply to an MP, he must be actually exercising his recognised functions as such member inside Parliament.
It is therefore absolutely necessary for parliament to always abstain from abusing these privileges.
Our readers, and other lovers of history, may be interested to know that this definition was actually developed as a result of an ancient English case that was decided in 1512, in which Richard Strode, a member of the British House of Commons, had introduced a private members' Bill in the House, aimed at regulating the tinners in Cornwall. Strode was subsequently imprisoned for that act.
It is his prosecution and imprisonment which resulted in a special Act of Parliament being enacted, cited as "An Act respecting Richard Strode"; which made the following provision:- "All suits and other proceedings regarding Richard Strode, and every other member of the present Parliament, or of any Parliament thereafter, for the introduction of any Bill, speaking or declaring any matter concerning Parliament to be committed and treated of, shall be utterly void and of no effect".
This completes our coverage of the section on parliamentary powers and privileges. We will now move on the matter of parliamentary immunities. The Parliamentary immunities. These can be listed as follows:- (i) Immunity from legal proceedings.
Section 3 of the Parliamentary immunities, powers and privileges Act (no. 3 of 1988) provides as follows: "No civil or criminal proceeding may be instituted against any member for words spoken before the Assembly or any of its committees, or for act done bona fide in pursuance of a decision or proceeding of the Assembly or a committee." This provision merely reinforces the protection relating to ' freedom of speech and debate in the Assembly'.
It means that an MP can have a judgment awarded against him in civil proceedings arising out of a speech made in Parliament.
(ii) Immunity from arrest for civil debts. This provision also has its origins in Britain's parliamentary history. Again, for the benefit of fellow lovers of history who may be interested in knowing the origins of this provision, I should explain that it originated from the English King's desire "not to let anybody interfere with the agents of the Shires and Boroughs whom he had summoned to treat with him about supplying money for his needs. So he made supreme the necessity of attending the business of his highest court, and took its members under his protection." The King's main concern was to secure the attendance of the said members; which was the principal reason for granting immunity from arrest to its members when they were on their way to, or from, attending its sittings, and in the course of such sittings.
(iii) Immunity from service of civil process within the precincts of Parliament. Section 11 of Act no. 3 of 1988; states thus:- "Notwithstanding anything to the contrary, no summons issued by any court in the exercise of its civil jurisdiction shall be served or executed within the precincts of the Assembly while the Assembly is sitting; nor shall any member be arrested on civil process while he is within the precincts of the Assembly, save by leave of the Speaker first obtained." This means that this protection is not available during the periods when the House, or its committees, are not in session.
But it is also not available to an MP who is a fugitive from justice. This is confirmed by the interesting 1815 case of the arrest of one Lord Cochrane, who was then a member of the British House of Commons. This MP had previously been committed to prison following his conviction of a criminal offence. One day he managed to escape from prison, and successfully made his way to the House of Commons chamber. The House was in session at that time, had not yet commenced that day's business.
Thus, no other members were present at that material time. But he was soon discovered, and re-arrested right there inside the chamber. This interesting story shows that the precincts of Parliament do not provide a sanctuary for an MP who is a fugitive from criminal justice, and offers no protection to such fugitives even during the period when the House is actually sitting. Definition of 'the precincts of Parliament'.
In that Act, the "precincts of the Assembly" are defined as "the chamber in which the Assembly meets in session for the transaction of business, together with the offices, rooms, galleries, courtyards, and other places provided for the use or accommodation of the members; or any passages connecting such places, and any other places immediately contiguous thereto".
This now brings us to the end of our presentation regarding those peculiar rights, that are enjoyed by members of Parliament, and which are provided for in the Parliamentary Immunities, Powers and Privileges Act (no. 3 of 1988), which are not normally available to other bodies or individuals. But since we still have sufficient editorial space for this article, this allows us to move on to two other equally important matters, namely that of ETHICS for Members of Parliament; and the extent of their ACCOUNTABILITY.
The code of ethics for Members of Parliament. In 1995, Parliament enacted a law establishing a "Code of ethics for public leaders", which is Act no. 13 of 1995. The definition of a "public leader" includes Members of Parliament; and for them, it carries significant importance, in the sense that under the provisions of article 71(1)(g) of the Constitution of the United Republic of Tanzania, a breach of this particular law by an MP can lead to the immediate cessation of his membership of Parliament.
The same ethics law imposes certain specified obligations on the public leader, and also requires the leader to observe certain specified standards of personal behaviour. The specified obligations read as follows:- (i) A public leader shall, while in office, act with honesty, compassion, sobriety, continence and temperance, trust and objectivity; and shall uphold the highest possible ethical standard in order to conserve public trust. (ii) Public leaders shall arrange their private affairs in a manner that would bear the closest scrutiny, an obligation which is not fully discharged by simply acting lawfully.
(iii) A public leader shall, within thirty days of taking office, at the end of each year, and at the end of his term of office, declare in prescribed form, all the property and assets owned by him, and liabilities owed to him, his spouse, and any unmarried minor children; without prejudice to the right of their wives or husbands owning property independently of their spouses. Failure to make this declaration without reasonable cause; or knowingly making a declaration which is false or misleading in a material particular, will be considered as a breach of the code of ethics; which attracts the specified penalties. And the required standards of a leader's personal behaviour include the following, which he must strictly avoid:- (i) Exerting any improper influence in the appointment, promotion, disciplining, or removal of a public Officer.
(ii) Soliciting, or accepting transfers of economic value (read bribes), other than customary hospitality, and traditional or token gifts; or gifts from family members. (iii) A public leader shall not speak in the Cabinet, the National Assembly, a Local Government Council, or a committee thereof; on any matter in which he has a direct pecuniary interest, unless he has disclosed the nature of that interest to the forum in which he is speaking. That completes our presentation regarding the ethics part of that law; next is the "accountability" part. The accountability of Members of Parliament.
In our parliamentary system of governance, the individual MP is accountable to the following authorities:- (a) his political party; (b) his constituency; (c) his country. (a) Accountability to his political party is clearly his foremost responsibility; simply because his political party's electoral support is what facilitated his entry into Parliament; and any form of cessation of membership of his party will lead to his losing his membership of Parliament.
Hence, the MP is also accountable to his political party in relation to his performance within Parliament. Indeed, the success of any political party that is represented in Parliament, but in particular the ruling party, basically depends on the successful performance of its MPs in the House.
It is primarily for that reason that in return, his party is entitled to demand the MP's full loyalty, especially when he is carrying out his parliamentary functions. (b) Accountability to the MP's constituency also arises from the fact that (in the case of the constituency MPs who constitute the great majority of Members of Parliament), their entry into parliament was facilitated by the votes of their constituents.
That, in fact, is the reason why there is such wide media coverage of parliamentary proceedings, which is intended to enable the electorate to know exactly how their representative is performing inside Parliament, so that they can censure him if he fails to perform to their satisfaction.
(c) The MP's accountability to his country is actually implied in his oath of office, wherein he promises that "he will be faithful to his country". And this means that should a conflict arise between the interests of his constituency and the 'national interest', the MP must always remember that he is a Member of the Parliament of the United Republic of Tanzania, which is one nation, with one compound interest, namely the 'national interest'; and that the national interest must take precedence over all local constituency interests.
Fortunately however, these external obligations do not obliterate the MP's personal entitlement to express his own frank views and opinions on any proposal that is brought to the House for debate; for he is also accountable to his own conscience. piomsekwa@gmail.com / 0754767576.
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