Reject impunity lurking behind ‘immunity for head of state’ tag

Saturday March 25 2023
John Magufuli.

The late Tanzania's former president John Magufuli. Catholic clergy have called for the removal of a spurious immunity that was legislated under him. PHOTO | FILE | NMG


Two statements, one coming on the heels of the other, may help convey the feel of what it is to be working in the governance labyrinth that is Tanzania, and the frustration that could beset you from time to time.

The first statement came from a representative of TEC, which is an organisation of the Catholic clergy, and it called for the removal of a spurious immunity that was legislated under the late president John Pombe Magufuli, placing a number of officials above the law by giving them immunity in cases which would normally burden them with responsibility, civil or criminal.

The first official granted such immunity under that law was, of course, the president, followed by the vice-president, the prime minister, the chief justice and others, all the way to the speaker of parliament who was chaperoning the immunity Bills.

Now, for some time the arguments have taken place around what the Constitution — this same, obsolete one that many people want rewritten — says about the president’s immunity when serving and after vacating office.

Unmitigated immunity

Some remarks give one the impression that some people understand that the president cannot be held responsible for anything, anything at all, full stop. My reading of the articles relating to the presidency and the individual occupying it has never given me the understanding of such pure, total and unmitigated immunity.


Without quoting verbatim, the wording of the Constitution shields the president on those matters done by him or her while performing the duties of his/her office. There are different provisions for responsibility while in office and when out of office, making it hard to sue a president on any matter while he/she still holds the office, but making it somewhat easier after his/her tenure. There is a reason for this, as no one wants to have a head of state who is forever moving in and out of courtrooms instead of concentrating on what they were elected to do.      

That said, it is clear from my reading—and I do not claim expertise in this area—there is no place where it says the president would be performing his/her duties if the offences are criminal in nature, because, simply, those are not part of presidential functions. For example, it cannot be said in any circumstance that when the president sexually assaulted his office secretary he was performing his duties.

Now, as I just said above, I have limited expertise in the matter, and I could be wrong. If it is in fact the case that this immunity is total, complete and without exception, then it should be rescinded without any further thought, because such legislation would be introducing an abomination in our governance and body politic. 

That is what the Catholic cleric was saying when he suggested that such purported immunity be scrapped. I could not agree with him more. It is to be hoped that the commission working on these proposals will take such views on board, and, while at it, spell out clearly what presidents may and may not do while in office.

Candidates for presidency

The second statement I referred to at the beginning of this contribution was made by a renowned human rights activist and defender who got so carried away with the good work done by President Samia Suluhu Hassan that he suggested that opposition parties should desist from putting up candidates for the presidency in the next elections in 2025, and should instead allow Samia an easier path to winning her own mandate. Instead, he said, opposition parties should focus their attention on the parliamentary and civic elections.

I have heard this one before, and I think it is very bad politics, which should not be allowed into our discourse. I have no doubt that Samia is doing the best job anyone could have done in her position. She has done monumental work and I have not held back when it has come to commending her for her efforts. She truly has been trying her very best to heave this country out of the dark hole into which it had sunk under her predecessor.

Still, we are not out of the woods yet. All we have seen is commission after commission, taskforce after taskforce, but very little traction. It is no time to talk about gifts to the president for doing what she is supposed to do, and that is pulling this country up from the depths it had sunk into.

There are so many repugnant laws passed under Magufuli that she could order amended or scrapped, for beginners. She could go back to the 40 or so laws listed by CJ Francis Nyalali as laws that needed to be removed back in 1992 because they were inimical to any meaningful multiparty system, but which remain on the statute books where they have been joined by the Magufuli-era laws to sink us deeper into the pit. To me that would constitute her low-hanging fruit, from which she could climb into the boughs to ferret out the juicier plums.

My plaudits to Samia for what she is doing right (in my view) should not exonerate her from the responsibility she accepted when she swore to be our leader. No prizes for now, it’s still early days.

Ulimwengu is now on YouTube via jeneralionline tv. E-mail: [email protected]