Nemo dat quod non habet, I was taught as a young aspiring lawyer, Latin for “You cannot give what you do not have.”
I found it only too logical, for how can it be otherwise? You do not have a thing, and that is it, you just don’t have it and so the question of giving it to a third party just does not arise. No-brainer. But I have lived my life post-university mingling with people who behave as if the opposite of what that maxim states is the norm, who go about their lives trying to prove that it is exactly what you do not have that you should be passing on.
If my memory serves me well, the quoted injunction is invoked in the law of contract and is about the impossibility of transferring a proprietary right that you do not possess in the first place, that is in the business of entering into contractual obligations. But I think it can be relevant in other, more subtle engagements, such as transferring legitimacy, bona fides and moral authority.
I hold it to be indisputable that a thief cannot superintend an operation dedicated to thwarting robbery, nor a murderer an undertaking to protect life against murderous criminals.
Now, fast forward to just the other day when a congress of the Interparliamentary Union (IPU) met in Luanda, Angola, and decided, among other things, to renew its leadership organs, and at the end of the process chose the Speaker of the Tanzanian parliament, Dr Tulia Ackton Mwansasu, erstwhile law lecturer at Dar es Salaam university, as president.
To be sure, this erudite lady, being a varsity don, is much better versed than I in such legal jargons than I can ever hope to be, having relegated myself since graduation to the ranks of the paralegals. But I have always observed that the theoretical knowledge of a subject matter does not always go hand in hand with the practical operationalisation of such knowledge. In fact, it would seem that what one knows is one thing and what one does is quite another.
Indeed, had the Lady Speaker examined herself before the Luanda congress – or had anyone else done due diligence on her apropos the office she was seeking – her candidacy would have been withdrawn for fear of being trashed from adverse publicity.
Instead, she went to Luanda and mounted a campaign on steroids, buoyed by the efforts of the officials of the Tanzania government, observed to be unstinting in their generosity. In the end she won handsomely and came back home to lavish congratulatory receptions and such praise singing as only Tanzanians know how to do these days.
Back to my nemo dat. Ostensibly, the IPU is an organisation whose most basic principle is to foster democracy and good governance in member countries through the promotion and protection of the rights of members of parliament to carry out their duties freely and in safely. This includes making sure parliamentarians understand these principles and work to promote and protect them. Does Lady Speaker Tulia fit this bill? I do not think so.
She presides over a truncated parliament, that is to say, a parliament that is not complete, for the simple reason that her House is not constituted as per the constitutional stipulation for its composition. To be sure, there is a lot to be desired in our current Constitution and calls for its overhaul are legion. But at least we should start with what we have and move forward to make it better.
What we have presently is a constitutional requirement that every member of parliament be sent by a recognised political party. It is a requirement that I have, alongside many other people, opposed but which the authorities have stubbornly and blindly defended, as if their lives depended on it.
Yet it is the same requirement ruling-party authorities are flouting, just so they can smuggle into parliament female members who have ceased to be members of any party!
So, in fact, all these three years, Dr Tulia has 19 female members of her House who are legally not members, and that means her parliament is not properly constituted.
The way matters stand to date, let us suppose hypothetically that a citizen is charged in a court of law under the provision of a law passed by this current, incomplete House. A defence line would be open to him/her that the provision in question has no legal basis, because it was not passed by a properly constituted parliament. In this case, the body that enacted the legal provisions in question clearly lacks legitimacy, a nemo dat situation.
But while we wait for someone to take up this matter before a court of law, is it fair to expect Dr Tulia to chaperon the IPU in fulfilling its mandate equitably, especially among its members in countries like the one she hails from, which cannot tell democracy from Adam?
Could she be expected to take issue with totalitarian states that seriously hamper democratic processes and have turned their parliaments into choruses singing the praises of the Executive, like hers has become?
To be fair to her, the don did not create this situation, she inherited it. But is she capable of rejecting this inheritance and instead craft out of it a real parliament that would rein in the government and serve as the voice of the people?