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{
    "id": 69515,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/69515/?format=api",
    "text_counter": 239,
    "type": "speech",
    "speaker_name": "Mr. Namwamba",
    "speaker_title": "",
    "speaker": {
        "id": 108,
        "legal_name": "Ababu Tawfiq Pius Namwamba",
        "slug": "ababu-namwamba"
    },
    "content": "Mr. Deputy Speaker, Sir, this option was also found to have the advantage as follows: 1. That the IIBRC has the institutional memory and real time experience on this matter, and that it is best placed to answer questions on its work; 2. That returning the IIBRC would afford it time for activities previously denied it, including the opportunity for public feed-back, as happened with the Committee of Experts on the Constitutional Review. However, this option would have the following challenges: 1. Returning the IIBRC to office required amending the Constitution, raising the challenge of time and the two thirds majority threshold required under Articles 255 and 256 of the Constitution; 2. The IIBR would also have to deal with the strong divisive political sentiments, both for and against it; 3. The Commission would have to grapple with the challenge of internal splits that had encumbered the tail-end of its work. Mr. Deputy Speaker, Sir, the second option that the Committee considered was to expand the mandate of the Interim Independent Electoral Commission (IIEC) to include a specific mandate to conclude and publish the IIBRC work within a specific timeframe and defined parameters. This option was found to have the advantage that the IIEC was available, has existing infrastructure, and would not waste too much time and resources getting down to handling the proposed additional mandate. But it would face the following challenges: 1. Like the option of returning the IIBRC to office, expanding the mandate of the IIEC would also require amending the Constitution; this option could also bog down the IIEC, with the politics already encumbering the IIBRC Report. The option could also be open to a legal challenge, given the specific mandate of the IIEC in the light of the rationale behind having both the IIBRC and the IIEC. This Report provides in detail the various legal issues that the Committee considered in detail, which I will not go into but are placed on record, in terms of the specific provisions of the Constitution and in the law regarding the two options. Mr. Deputy Speaker, Sir, the third option that the Committee looked at was constituting the new Independent Electoral and Boundaries Commission (IEBC), under Article 80(8) of the Constitution, and giving it the responsibility of addressing outstanding issues from the IIBRC Report, guided by legislation under Articles 89(5) and 250 of the Constitution. This option was found to have the following advantages: 1. The IEBC may not require constitutional amendment if Article 259(3)(d) of the Constitution is applied; if it is determined that it can, indeed, handle issues from the first review as envisaged in Articles 1(a) and 27(4) of Schedule 6 to the Constitution; 2. The new body may enjoy higher public trust and goodwill; 3. Parliament could determine the character of the Commission through Article 250, and its functions under Article 289(5); 4. This option may be faster than returning the IIBRC, or expanding the mandate of the IIEC. Mr. Deputy Speaker, Sir, the challenges that would be faced by this Commission were:- 1. The great risk of soiling the image of the IIEC, because of the already poisoned political sentiments, thus gravely compromising its ability to handle the crucial 2012 general election; 2. It has no institutional memory and could also be challenged as to whether it has the mandate to handle the first review, in accordance with Clauses 1(a) and 27(1) of the Sixth Schedule of the Constitution, and to save protected constituencies under Clause 27(4) of the same Schedule; 3. Parliamentâs legislative guidance could be challenged for being ultra vires in the absence of specific limits; 4. Possible compromised independence at the initial if its composition is as a result of a political dealing. Mr. Deputy Speaker, Sir, the Report also provides in great detail, the specific legal and constitutional issues that the Committee considered while looking at this option, which I will also not mention specifically, but which I go ahead to place on record. The fourth option the Committee looked at was for Parliament to debate the IIBRC Report, adopt it with any agreed amendments paying due regard to address issues outlined in a Report by the Justice and Legal Affairs Committee, and proceed to effect it through legislation and or gazettement. This will be done under the broad mandate of Article 254 of the Constitution, and the initial mandate of the IIBRC, under Articles 41B and 41C of the former Constitution. This process was found to have two positives. 1. The process would benefit from a political settlement in Parliament. 2. It would be faster than options one, two and three. Mr. Deputy Speaker, Sir, the challenge was that while Article 254 empowers Parliament to receive reports of all Commissions, there is no express authority for Parliament to deal with this matter through legislation, or otherwise. This could open the option to judicial challenges. Again, I draw hon. Membersâ attention to the specific constitutional issues that the Report provides in great detail, in terms of the implications of pursuing this option. Mr. Deputy Speaker, Sir, the last option that the Committee looked at was to get the IIBRC Report gazetted as presented to the Government Printer and outstanding issues dealt with through judicial action as contemplated by law, and, possibly, with the input of Parliament. The advantages of this input were that the process would not require amending the Constitution. Secondly, it would be the fastest of all the options. However, the Committee did note that the option would face three challenges: 1. how to deal with the outstanding issues; 2. what would be the fate of the many legal suites; 3. the gazettement of the IIBRC Report had already become victim of intense politics. Mr. Deputy Speaker, Sir, based on these options, the Committee proposes the following roadmap of resolving these outstanding issues. 1. The Committee would prepare its report on the IIBRC Report. 2. The Committee would table its report in this House. 3. That the House would consider this report on the IIBRC Report together. 4. That the process will then be concluded through the preferred option of the five options we have looked at."
}

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