Wednesday, January 7, 2009




THE question of whether or not to prosecute a former president for any wrong-doing and/or abuse of office during his tenure of office has raised strong public debate.

That is quite understandable within the current atmosphere of the ‘ufisadi” conscious public and in a large measure, by recent court appearances of two former ministers and one permanent secretary over matters of corruption and abuse of office.

The one big question now on the lips of many people is: Did these people act alone? Or did they make such decisions with the full knowledge of the president or were they carrying out orders?

The situation in which the present administration finds itself in, is not of its making, but it is a spill-over from the former immediate presidency. What prompted us to comment on this issue is the reportage of some newspapers on two almost contradicting positions from the same government and on the same issue.

First, the PCCB’s statement as reported in several papers yesterday, denied what it said were grapevine “rumours” that it was probing the former President on allegations of abuse of office allegedly committed whilst in power.

Secondly, on the same day, the Prime Minister, Mizengo Pinda issued what we think to be the most judicious statement over the matter. He was quoted by one paper as saying that the Government was not afraid of former President, Benjamin Mkapa and that if it is proved that he did any wrongdoing whilst in office, he can be prosecuted.

We would have held no qualms against the country’s corruption watchdog had the “denial” of not probing Mkapa just ended there. However, its going further by showing that moving against the former Head of State was against the Constitution – in effect trying to interpret the Constitution in its own way – is what we want to comment upon.

PCCB quotes Article 46(3) which says (brackets are ours): “Except where he ceases to hold the office of President pursuant to the provisions of Article 46(10)(i.e. through impeachment), it shall be prohibited to institute in court criminal or civil proceedings whatsoever against a person who was holding the office of president after he ceases to hold such office for anything he did in his capacity as President while he held the office of the president in accordance with this Constitution.”

It is therefore quite evident that the PCCB is manipulating the somewhat ambiguous stipulation “anything he did in his capacity as president while he held the office of the president in accordance with this Constitution.”

We hold strong convictions that the words “anything he did in his capacity as president” don’t include criminal activities or abuse of office as these are not part of the presidential duties as provided for in the Constitution. In other words the Constitution does not licence him to commit crimes, or may be it was thus included under the assumption that a president is not supposed to commit such acts. The Constitution only requires him to execute his duties as virtuously and as nobly as possible.

If the stipulation is interpreted in its face value (like what PCCB does), then ours might be the only constitution in the world that gives its Head of State a licence to commit crime while in office!

If we are to go by the PCCB interpretation, then we would be in great trouble in case we put in the presidency a thieving individual who would literary ransack our state coffers under the pretext that he would be immune from prosecution after leaving office.

We think it is the role of our lawyers and other constitutionalists in Tanzania to enlighten and educate the public on the Constitution and state that the Constitution does not give blanket immunity to ex-presidents. We are not constitutional experts, but we do not agree with the interpretation of Article 46(3).

In our opinion, the Prime Minister’s statement was the correct interpretation. Constitutions should be above individuals, including heads of state. However, having said that it does not mean we would want to see our former heads of state brought to book just to justify certain political ends. If at all, there is need for us to review/rewrite the Constitution not only to remove all ambiguities, but also plug all the loopholes therein.