Dons see logic in Kilango choice.

PRESIDENT John Magufuli has, by nominating former Shinyanga Regional Commissioner, Ms Anne Kilango- Malecela as MP ahead of the parliament session starting next week, swiftly moved to forestall debate on what appeared to be a ‘constitutional crisis’.

For the past few days, the social media has been awash with hot debate that President Magufuli could have gone against the Supreme Law after he nominated two new MPs -- Law Professor Palamagamba Kabudi and Abdallah Bulembo. Their appointment has so far brought to eight out of 10, which is the total number of presidential nominees allowed under the constitution.

Out of the eight, six are men. Two more are required. Those who publicly argued against the appointment said considering the required ratio between male and female nominees, Article 66 (1) (e), says at least five members amongst the nominees should be women.

But, according to the analysts, that debate has now become baseless following the nomination of Ms Kilango-Malecela, which came as a replacement a few hours after one of the male nominees, Dr Abdallah Possi, a Deputy Minister in the Prime Minister’s Office, resigned as an MP, a day after he had been appointed ambassador. His appointment as ambassador and nomination of Ms Malecela as lawmaker brings to an end the vividly blown up constitutional dilemma.

Academicians who spoke to the ‘Daily News’ yesterday noted that President Magufuli has made a good ‘U-turn’ ahead of the Parliament sitting next week, which would probably have attracted discussions on whether the previous nominations did not consider gender balance.

Professor Kitila Mkumbo of the School of Education of the University of Dar es Salaam (UDSM) said the president has reacted too fast to prevent a constitutional crisis, noting that the discussion could feature in the forthcoming Bunge session. However, Professor Mkumbo said the president had acted on his constitutional powers to nominate and revoke the appointment.

Professor Gaudence Mpangala of the Ruaha Catholic University (RUCU) commented that now there is a huge possibility for President Magufuli to meet the required menwomen ratio required under the constitution.

“I guess that the president heard the concerns from stakeholders over unconstitutional nominations; hence his swift decision to avert any possible constitutional conflict,” he observed. Recently, following the appointments of Professor Kabudi and Mr Bulembo, some legal practitioners said the president was in the right direction as others faulted him for going against the provisions of Article 66 (1) (g) of the Union’s Constitution.

Seasoned Advocate Mpale Mpoki pointed out that the question whether the president has exceeded his powers depended on interpretation of the Article in question. He was of the opinion that the president has not committed any offence as long as the total number of 10 nominees has not so far been attained.

“He (president) may resort to Article 67 (2) (g) of the constitution to strike the gender balance contemplated under Article 66 (1) (e). So, It is wrong at the moment to conclude that there is a constitution breach for the recent appointments,” he pointed out.

Article 67 (2) (g) reads, “A person shall not be qualified to be elected or appointed (MP) if such person holds a senior office in the service of the government, not being an office of which the President may or is required to appoint a Member of Parliament in accordance with this Constitution or a law enacted by Parliament.”

Advocate Mpoki was, however, quick to point out that the president could be wrong somewhere -- going by purposive approach of interpretation of the constitution because the purpose of Article 66 (1) (e) was to have a gender balance among the nominees.

If there were six men already, then the gender balance is not there. But there is a lacuna in this article, as far as revocation of the appointee is concerned. This gape can be cured later under Article 67 (2) (g) since the president still has other nominees to make,” he said.

Advocate Hudson Ndusyepo was of a different view “going by clear reading of the article in controversy’’. He said that the words “at least” used under the article meant minimum.

Thus, he said, most of the nominees were required to be women and not men as what has been done by the president. He suggested that the president could resort to Article 67 (2) (g) and Article 71 (1) of the Constitution to already nominee MPs to remedy the situation.

Otherwise, he said, if the position would remain would amount to the constitutional breach.

Advocate Jerome Msemwa almost gave similar sentiments, but threw the ball to legal advisors to the president – in that they had not properly interpreted the constitution, in particular the article in question, which vests powers on the head of the state to appoint lawmakers.

Daily News