HUKUMU YA RUFAA YA MGOMBEA BINAFSI

THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM

RAMADHANI, C. J.; MUNUO, J. A.; MSOFFE J. A.; KIMARO,J.A
MBAROUK, J.A.;LUANDA, J. A. ; And MJASIRI, J.A.)

CIVIL APPEAL NO. 45 OF 2009 BETWEEN
THE HONOURABLE ATTORNEY GENERAL ... APPELLANT
AND
REVEREND CHRISTOPHER MTIKILA ... RESPONDENT
(Appeal from the Judgment of the High Court of Tanzania at Dar
Es Salaam,)

(Manento, J. K.; Massati, J. And Mihayo, J.)
dated the 5th day of May , 200 in Misc. Civil Cause No. 10 of 2005 JUDGMENT OF THE COURT.

RAMADHANI, C. J.:For the ease of reference and to avoid a possible mix-up and confusion, we shall refer to the parties simply as Rev. Mtikila for Reverend Christopher
Mtikila, the respondent/petitioner, on the one hand, and the A. G. for the
Attorney General, the appellant/respondent, on the other hand. Also to
appreciate most fully what is at stake in this appeal we have to preface this
judgment with a brief background.
1
Way back in 1993 Rev. Mtikila filed Misc. Civil Cause No. 5 of 1993,
challenging, among other matters, the prohibition of independent
candidates for presidential, parliamentary and civic elections which was
introduced by the Eighth Constitutional Amendment Act, 1992. That Act
amended Art. 39 which previously provided as follows:
No person shall be eligible for election to the office of
President of the United Republic unless he -
(a) has attained the age of forty years; and
(b) is otherwise qualified for election as a Member of
the National Assembly or of the (Zanzibar) House
of Representatives.
The Eighth Amendment retained the above paragraphs but re-numbered
them as (b) and (d) respectively and added new paragraphs (a) and (c)
which state:
(a) is a citizen of the United Republic by birth;
(c) is a member of and sponsored by a political party.
That requirement for membership of and sponsorship by a political party
applies also to parliamentary elections under Articles 67 and 77 and to local
councils elections under s. 39 of the Local Authorities (Elections) Act, 1979,
as amended by the Local Authorities (Elections) (Amendment) Act, _
(Act No 7 of 1992).
Rev. Mtikila's contention before LUGAKINGIRA, J. (as he then was) was
that the requirement for membership of and sponsorship by a political
party abridged the right to participate in national public affairs under Art.
21(1) of the Constitution which provides:-
Every citizen of the United Republic is entitled to take part
in matters pertaining to the governance of the country,
either directly or through representatives freely elected by
the people in conformity with procedures laid down by, or in
accordance with, the law.
LUGAKINGIRA, J. poignantly summed up his dilemma as we shall see later
and concluded that:
For every thing I have endeavored to s tate and
notwithstanding the exclusionary elements to that effect in
arts 39, 67 and 77 of the Constitution as well as s 39 of the
Local Authorities (Elections) Act 1979, I declare and
direct that it shal l be lawful for independent
candidates, along with candidates sponsored by
political parties, to contest presidential,
3
parliamentary and local council elections. This will not
apply to the council elections due in a few days. (Emphasis is
ours.)
The learned judge restrained himsel f not to declare the various
constitutional provisions to be unconstitutional though he had been invited
to do so. We shall revert to this at an appropriate stage.
However, soon after that judgment the A. G. reacted in two simultaneous
ways: he filed an appeal in this Court and sent to Parliament the Eleventh
Constitutional Amendment, Act No. 34 of 1994, whose effect was to nullify
the declaration and the direction of LUGAKINGIRA, J. and to maintain the
constitutional position which had been before the decision of Misc. Civil
Cause No. 5 of 1993.
We have already reproduced Article 21(1) in English version but for the
sake of clarity we shall recite it again in Kiswahili, both as it was before its
amendment by Act 34 of 1994, and as it reads now after the amendment.
Before the amendment it read as follows:
4
as amended by the Local Authorities (Elections) (Amendment) Act, 1992,
(Act No 7 of 1992).
Rev. Mtikila's contention before LUGAKINGIRA, J. (as he then was) was
that the requirement for membership of and sponsorship by a political
party abridged the right to participate in national public affairs under Art.
21(1) of the Constitution which provides:-
Every citizen of the United Republic is entitled to take part
in matters pertaining to the governance of the country,
either directly or through representatives freely elected by
the people in conformity with procedures laid down by, or in
accordance with, the law.
LUGAKINGIRA, J. poignantly summed up his dilemma as we shall see later
and concluded that:
For every thing I have endeavored to s tate and
notwithstanding the exclusionary elements to that effect in
arts 39, 67 and 77 of the Constitution as well as s 39 of the
Local Authorities (Elections) Act 1979, I declare and
direct that it shall be lawful for independent
candidates, along with candidates sponsored by
political parties, to contest presidential,
3
Kila raia wa Jamhuri ya Muungano anayo haki ya kushiriki
katika shughuli za utawala wa nchi, ama moja kwa moja au
kwa kupitia wawakilishi waliochaguliwa na wananchi kwa
hiari yao, kwa kuzingatia utaratibu uliowekwa na sheria au
kwa mujibu wa sheria.
After the amendment that sub-Article reads the same way but it is prefaced
by the following formulation:
Bila ya kuathiri masharti ya Ibara ya 39, ya 47 na ya 67 ya
Katiba hii na ya sheria za nchi kuhusiana na masharti ya
kuchaguwa na kuchaguliwa, au kuteua na kuteuliwa
kushiriki katika shughuli za utawala wa nchi,
That reads in English as follows:
Subject to the provisions of Articles-39, 47 and 67 of this
Constitution and of the laws of the land in connection with
the conditions for electing and being elected or for
appointing and being appointed to take part in matters
related to governance of the country, ...
In the petition, Misc. Civil Cause No. 10 of 2009, the subject matter of this
appeal, Rev. Mtikila challenged the Eighth Amendment and asked the High
Court of Tanzania to grant the following four prayers:
5
(a) A declaration that the constitutional amendment to Articles 39 and
67 of the Constitution of the United Republic of Tanzania as
introduced by amendments contained in Act No. 34 of 1994 is
unconstitutional.
(b) A declaration that the petitioner has a constitutional right under
Article 21 (1) of the Constitution of the United Republic of
Tanzania to contest for the post of the seat of a member of
parliament of the United Republic of Tanzania as a private
candidate.
(c) Costs of this petition be borne by the Respondent.
(d) Any other remedy and/or relief the honourable Court will deem
equitable to grant.
Three judges of the High Court of Tanzania, MANENTO, J. K., MASSATI, J.,
and MIHAYO, J. (all three Judges as they then were) granted the prayers
except for costs which they ordered each party to bear its own. We better
let the High Court speak for itself:
We thus proceed to declare the alleged amendments
unconstitutional and contrary to the International Covenants
to which Tanzania is a party.
The A. G. has preferred this appeal in which he was represented by Mr.
George Masaju, the learned Deputy Attorney General, assisted by Mr.
6
Matthew Mwaimu, learned Principal State Attorney. The respondent, on the
other hand, had the services of Mr. Richard Rweyongeza, learned
advocate, assisted by Mr. Mpale Mpoki, learned counsel.
The Chief Justice decided that the appeal be heard by a Full Bench of
seven Justices of Appeal. He also invited four friends of the Court: Mr.
Othman Masoud, the Director of Public Prosecutions, Zanzibar; Prof.
Palamagamba Kabudi; Prof. Jwan Mwaikusa and the Chairman of the
National Electoral Commission, who was represented by the Director of
Elections, Mr. Rajabu Kiravu. We are extremely grateful to all.
First and foremost let us take the opportunity to correct one thing: There is
nothing like "a private candidate". That is a direct translation from Kiswahili
"mgombea binafsi". But the right terminology is "an independent
candidate", as Prof. Kabudi, properly pointed out, and in this judgment we
shall use that terminology.
The A. G. had seven grounds of appeal but at the hearing he dropped
grounds three and five and consolidated grounds one and two. However, in
7
this judgment we are going to deal with grounds one and two separately.
Otherwise, we are going to follow the order in which Mr. Masaju argued
the remaining five grounds which will, necessarily, be renumbered.
Mr. Masaju started with the last ground, ground number 7, which is now
ground number 5, and which avers as follows:
That the High Court erred in law in proceeding with the
determination of the petition without framing issues.
Admittedly, the High Court did not frame issues and we agree with Mr.
Masaju that that offends 0 XIV R 1(5) of the Civil Procedure Code [Cap. 33 R.
E. 2002] which provides as follows:
(5) At the first hearing of the suit the court shall, after
reading the plaint and the written statements, if any, and
after such examination of the parties as may appear
necessary, ascertain upon what material proposition of fact
or of law the parties are at variance, and shall thereupon
proceed to frame and record the issues on which the right
decision of the case appears to depend.
The High Court itself said in its judgment:
8
Although the court did not formulate the issues to be tried,
the petitioner has framed and both parties have fully argued
on the following issues:
(i) Whether the sections, namely Article 39 (1)
(c) and 39 (2) and Article 67 (b) and 67 (2)
(e) are unconstitutional.
( i i ) Whe ther the said sec t ions meet the
proportionality test?
(iii) Whether the said amendment introduced by
Act No. 34 of 1994 contravenes the
International Instruments signed, ratified
and deposited by the Government of the
United Republic of Tanzania?
The court was thus fully aware of the provisions of the CPC but was also
cognizant of the fact that the petitioner had suggested three issues which
were adopted by the A. G. hook, line and sinker as is apparent in his reply to
the written submissions of Rev. Mtikila:
As long as the issues were not agreed upon between the
parties yet our submissions will discuss them as nearest as
possible.
This Court in Abel Edson Mwakanyamale v. N. B. C. (1997) Ltd. Civil Appeal
No. 63 of 2003 (unreported) cited with approval the observation of Sir
9
BARCLAY NIHIL, P. in Janmohamed Umerdin v. Hussein Amarshi and Three
Others (1953) 20 EACA 4:t at p. 42 that:
It may be that where, as here, neither party asked for
issues, the validity could not be successfully attacked on the
ground that the cour t should have framed issues,
nevertheless, in my view neither the court nor the counsel
are entitled to leave out the requirements of Order 14 Rule
5, this being a rule governing the conduct of a civil
proceeding.
This Court in that same appeal, referred also to MULLA on The Code of
Civil Procedure, 15th edition p. 1421:
The answer depends on the following considerations. If,
though no issue is framed on the fact, the parties adduce
evidence on the fact and discuss it before the Court decides
the point, as if there was an issue framed on it, the decision
will not be set aside in the appeal on the ground merely
that no issue was framed ... The reason is that mere
omission to frame an issue is not fatal to the trial of a suit
unless the omission has affected the disposal of the case on
the merits ..,
The mere omission, on the part of the trial court, to frame
an issue in a matter of controversy between the parties,
10
cannot be regarded as fatal unless, upon examination of the
record, it is found that the failure to frame the issue had
resulted in the parties (i) having gone to the trial without
knowing that the said question was in issue between them,
and (ii) having therefore failed to adduce evidence on the
point.
After reviewing those two authorities this Court said:
In view of the unorthodox procedure followed by the
learned trial judge, we are not certain that the parties had
gone to trial knowing what was the real question between
them, non-payment of the debt or the purported invalidity
of the Mortgage Deed! As we have explained before, the
parties did not adduce any evidence at the trial and so the
decision of the learned trial judge was not based on
evidence.
Their Lordships then set aside the relevant parts of the proceedings that
were affected and ordered a retrial before another judge.
This appeal is a totally different scenario from that of Abel Edson
Mwakanyamale and so we cannot take a leaf from that appeal and order a
retrial. We are of the decided opinion that even if issues were not framed,
11
since the parties being ad idem as to what was at stake, had fully
addressed the points in dispute, and since the court made its decision
based on their submissions, then no injustice was occasioned and this
appellate Court will not interfere solely on that score.
In fact, we are just being consistent with a recent decision of this Court in
Jaffari Sanya Jussa and Another v. Salehe Sadiq Osman, Civil Appeal No.
51 of 2009 (unreported) citing 17th Edition of MuIla at p. 719 which is in pari
materia with page 1421 of the 15th Edition.
We, therefore, dismiss this ground of appeal.
Then Mr. Masaju tackled what had been ground six reading as follows:
That the High Court erred in law and in fact by subjecting
the Constitution to International Instruments.
Mr. Masaju pointed out that the United Republic of Tanzania has not
surrendered its sovereignty in any way and that is why Article 177 B
requires courts, when dealing with disputes, to take into account only the
provisions of the Constitution and laws of the country.
12
However, we agree with Mr. Rweyongeza that International Instruments
were not the conclusive factor in the judgment so even if they were to be
ignored the judgment will remain intact. The learned judges said:
In the event, we agree with the learned counsel for the
petitioner, that the amendments to Articles 21(1), 39(1)(c)
and 67(1)(b) of the Constitution also contravenes the
International Conventions. So we answer the third issue
also in the affirmative. (The emphasis is ours.)
It is clear to us that the word "also" used in the above paragraph meant "in
addition to". Thus the International Conventions were considered in
addition to the position that had already been taken by the court.
This Court in D. P. P. v. Daudi Pete [1993] T. L. R. 22 ruled that reference to
International Instruments is in order when interpreting the Bill of Rights of
our Constitution. This Court said at p. 34:
Tanzania signed the [African Charter on Human and
Peoples' Rights] on 31 May 1982 and ratified it on 18
February 1984. Since our Bill of rights and Duties was
introduced into the Constitution under the Fifth Amendment
in February 1985, that is, slightly over three years after
Tanzania signed the Charter, and about a year after
13
ratification, account must be taken of that Charter in
interpreting our Bill of Rights and Duties. (Emphasis is
ours.)
So, we are at one with Mr. Rweyongeza in his reply that reference to
International Human Rights Instruments has been ordained by this Court.
We, therefore, cannot fault their lordships in any way and this ground of
appeal is dismissed, too.
In what had been ground 4 the appellant averred:
That the High Court erred in law by assuming legislative
powers.
To beef up this ground Mr. Masaju referred us to what the High Court said:
We shall also declare in the present case that in principle it
shall be lawful for private candidates to contest for the post
of President and Member of Parliament along wi th
candidates nominated by political parties. However, unlike
[LUGAKINGIRA, J.] the learned late judge we will not just
leave it at that. Exercising our powers under any other relief
as prayed in the petition and cognizant of the fact that a
vacuum might gi ve bi r th to chao s a nd pol i t i cal
pandemonium we shal l proceed to order that the
respondent in the true spirit of the original Article 21(1) and
guided by the Fundamental Objectives and Principles of
14
State Policy contained in Part II of the Constitution between
now and the next general elections, put in place, a
legislative mechanism that will regulate the activities of
private candidates. So as to let the will of the people prevail as
to whether or not such candidates are suitable.
Mr. Rweyongeza replied that the High Court merely used its powers under
Article 26 and directed that the articles be dealt with by Parliament. The
learned advocate concluded by saying that "the High Court might have
possibly erred but it certainly did not usurp parliamentary powers".
We are a shade unsure as to what Mr. Rweyongeza meant that "the High
Court might have possibly" erred.
LUGAKINGIRA, J. stated in his judgment "I declare and direct that it shall be
lawful for independent candidates, along with candidates sponsored by
political parties, to contest presidential, parliamentary and local council
elections". Did he strike out the articles which require a prospecting
candidate for election as a President, a Member of Parliament or a Local
Government Councilor to belong to and be sponsored by a political party,
that is, Articles 39, 47 and 67? If he did not do that his declaration and
15
direction that independent candidates are lawful is an empty statement.
Anyway, we are not si t t ing on appeal against the judgment of
LUGAKINGIRA, 1 The A. G. miscalculated in denying this Court that
opportunity in 1994.
But even in this appeal when travelling through what their Lordships said,
as quoted below, we are left speculating:
So in conclusion on the above two issues, we wish to make it
very plain that in our view Act 34 of 1994 which amended
Article 21(1) so as to cross refer it to Articles 5, 39 and 67
which introduced into the Constitution, restrictions on
participation of public affairs and the running of the
government to party members only was an infringement on
the fundamental right and that the restrict ion was
unnecessary and unreasonable, and so did not meet the
test of proportionality. We thus proceed to declare that
the said amendments to Articles 21(1), 39(1)(c) and
67(1)(b) are unconstitutional. (Emphasis is ours.)
One thing which is crystal clear to us is that their Lordships "declared the
said amendments" to be unconstitutional. Did they strike down those
amendments? We think not. They categorically stated that "we shall
16
proceed to order that the [A. G.] between now and the next general
elections, put in place, a legislative mechanism that will regulate
the activities of private candidates".
The A. G., the chief legal advisor of the Executive was to take the
necessary steps to amend the laws and the Constitution so that
independent candidates could be permitted. We are, therefore, of the
settled view that the learned judges did not clothe themselves with
legislative powers. This ground fails, too.
As already said earlier we are going to address grounds one and two
separately despite the consolidation by Mr. Masaju. Ground one provided
as follows:
That the High Court wrongly assumed jurisdiction in
entertaining the Petition.
Mr. Masaju submitted that since the dispute is on articles of the
Constitution of the United Republic then the High Court of Tanzania had no
jurisdiction to construe it. With all due respect to the learned Deputy
Attorney General, we do not think that he seriously contended that. He
17
failed to tell us which court in the whole of the United Republic has the
jurisdiction to construe the Constitution of the United Republic of Tanzania.
We agree with Mr. Rweyongeza that where the jurisdiction of the High
Court or any court, for that matter, is ousted there has to be an express
provision to that effect. The learned advocate referred us to Article 7 (2)
which states:
The provisions of this Part of this Chapter are not
enforceable by any court. No court shall be
competent to determine the question whether or not
any action or omission by any person or any court, or any
law or judgment complies with the provisions of this Part of
this Chapter. (Emphasis is ours).
Now, "this Chapter" mentioned in that sub-article refers to Chapter One of
the Constitution and "this Part" refers to Part II. Chapter I is titled "The
United Republic, Political Parties, The People and The Policy of Socialism
and Self-Reliance" and Part II is titled "Fundamental Objectives and
Directive Principles of State Policy". Now, those are statements of policy.
What is of crucial importance for our purposes in this appeal is that if
Parliament had intended that all the provisions of the Constitution were not
18
justiciable, as contended by Mr. Masaju, then there would have been an
express provision in line with Art. 7(2). Since there is no such provision
then the High Court had jurisdiction to entertain the petition.
Where there are such express provisions ousting jurisdiction the courts
observe them and restrain from adjudicating. This Court did just that in
Seif Shariff Hamad v. Serikali ya Mapinduzi ya Zanzibar, Criminal Appeal No
171 of 1992, (unreported) because, though the Court is for the whole
Union, Article 99(2)(a) of the Constitution of Zanzibar, 1984, denies this
Court jurisdiction of interpreting that Constitution in the following terms:
Mahakama ya Rufaa haitakuwa na uwezo wa kusikiliza kesi
zozote zinazohusiana na:-
(a) Tafsiri ya Katiba hii;
We may as well reiterate what we had said in that judgment on 24th
February, 1993, over 17 years ago now:
Tunapendekeza kuwa mamlaka zinazohusika katika pande
zote mbi l i za Muungano zichukue hatua zipasazo
kusawazisha vifungu hivi na vyengine vyenye utata ama
uwezekano wa kuleta utata baina ya hizi Katiba mbili.
That can be translated as follows:
19
We recommend to the relevant authorities on both sides of
the Union, to take necessary steps to harmonize these
conf l ict ing sect ions and other sect ions of the two
constitutions which are potentially irreconcilable.
This is the second time we recite that passage in Seif Shariff Hamad. The
first time was in S. M. Z. v. Machano Khamis Ali & 18 Others, Criminal
Application No. 8 of 2000 (CAT unreported), where we said:
In that appeal we reserved constitutional matters for
political solutions and we disposed the appeal on a
procedural ground. But it is time to look at such provisions
and take remedial steps. The Court will not throw in the
towel but will keep on drawing the attention of the
Powers that be. That is our role.
We should not be taken to be prophets of doom but it is an undisputed fact
that this Court of Appeal contains part of the cream of legal minds in this
United Republic and, therefore, their opinion should be accorded the
weight it deserves. Unfortunately, the Attorney General's Chambers is
oblivious to that naked fact or does not read such important decisions even in
cases where that Chamber is actively involved.
20
To return to the first ground of appeal, apart from the absence of such
prohibition the High Court had jurisdiction to adjudicate the petition
because of the constitutional set up of the United Republic of Tanzania
which, according to Art. 2(1), consists of Mainland Tanzania (or what was
formerly Tanganyika Territory) and Tanzania Zanzibar (or what was
formerly Zanzibar Protectorate). In political parlance Tanzania Zanzibar is
simply referred to in Kiswahili as Tanzania Visiwani (Tanzania Islands).
The constitutional set up is that, whereas there is a Constitution and
organs of Tanzania Zanzibar, there is no such Constitution and organs for
Mainland Tanzania. The Constitution of the United Republic of Tanzania
and its organs, which are referred to as of the United Republic, are for
both the Union and for Mainland Tanzania. Thus the High Court of
Tanzania is both for the Mainland Tanzania and for the Union on matters
pertaining to the Constitution, such as the one that is the subject matter of
this appeal.
So, the High Court had jurisdiction to entertain the petition and ground one
is dismissed in its entirety.
21
Ground 2 was formulated in the following way:
That the High Court erred in law in nullifying the provisions
of the Constitution.
May be we start by saying that it is doubtful whether their Lordships
nullified the provisions of the Constitution. As we have already said they
certainly declared them unconstitutional. Their Lordships, after the
declaration, did not take the next step to nullify or strike out the articles
they found to be objectionable.
So, the issue then is whether the High Court of Tanzania or this Court has
jurisdiction to declare a provision or provisions of an article or articles of
the Constitution to be unconstitutional. Here is where we summoned the
assistance of three friends of the Court: Mr. Othman Masoud, the Director
of Public Prosecutions, Zanzibar; Prof. Palamagamba Kabudi; and Prof.
Jwan Mwaikusa.
Mr. Masaju started by pointing out that courts are entrusted with the
protection of the constitution and that their chambers get worried when
the court strikes out an article of the Constitution. He specifically criticized
their Lordships when they said:
Our Constitution consists of 10 chapters, and some chapters
have several parts. Chapter One has three parts. Part Three
of chapter One has 32 Articles. So Article 30(3) of the
Constitution is only applicable to the enforcement of Part III
of Chapter One of the Constitution. So this court may
indeed declare some provisions of the Constitution,
unconstitutional.
May be we pause here for a while and digest this bit. Article 30 is about
"Limitations upon, and enforcement and preservation of basic rights,
freedoms and duties", now sub-Article (3) provides:
Any person claiming that any provision in this Part of this
Chapter or in any law concerning his right or duty owed to
him has been, is being or is likely to be violated by any
person anywhere in the United Republic, may institute
proceedings for redress in the High Court.
With all due respect, we fail to see how the provisions of Article 30(3) led
their Lordships to conclude that "this court may indeed declare some
provisions of the Constitution, unconstitutional".
23
On the contrary Mr. Rweyongeza's view is that a constitutional amendment
Act is not exempted from review by the courts under Art. 30(3). He
referred us to Art. 368 (1) of the Indian Constitution, which is in pari
materia with our Art. 98 (1). He pointed out that it has been held that the
Indian Parliament cannot use Art 368(1) to amend the basic structure of
the Constitution. He concluded that their Lordships were right to declare
the amendments by Act No. 34 of 1994 to have been unconstitutional as
they meddled with the basic structure of the Constitution, that is,
franchise.
We admit two factual positions: One, Art 98(1) provides for the procedure
of altering the Constitution and does so in the following terms:
Parliament may enact law for altering any provision of this
Constitution in accordance with the following principles:
(Emphasis is ours.)
Those principles are not relevant for this judgment.
24
This Court said in Daudi Pete (supra) that the Kiswahili version of the
Constitution is the authentic one. The Kiswahili version of Art 98(1)(a) and
(b) provide: "kubadilisha masharti yoyote ya Katiba hii".
So, the Parliament can alter "any provision" of the Constitution. We wish to
emphasize "any provision" of the Constitution. Altering has been defined
by Art 98(2) to include:
... modification or correction of those provisions or repeal and
replacement of those provisions or the re-enactment or
modification of the application of the provisions.
We have no doubt in our minds that what the Eleventh Amendment did
was altering Art 21 as explained above.
The second matter is that Art 30(5) provides for the review of any Act of
Parliament in these words:
Where in any proceedings it is alleged that any law enacted
or any action taken by the Government or any other
authority abrogates or abridges any of the basic rights,
freedoms and duties set out in Articles 12 to 29 of this
Constitution, and the High Court is satisfied that the law or
25
action concerned, to the extent that it conflicts with this
Constitution, is void or is inconsistent with this Constitution,
then the High Court, if it deems fit, or if the circumstances
or public interest so requires, instead of declaring that such
law or action is void, shall have the power to decide to
afford the Government or other authority concerned an
opportunity to rectify the defect found in the law or action
concerned an opportunity to rectify the defect found in the
law or action concerned within such a period and such
manner as the High Court shall determine, and such law or
action shall be deemed to be valid until such time the defect is
rectified or the period determined by the High Court
lapses, whichever is the earlier.
The question which arises is whether a law effecting a constitutional
amendment according to Art 98(1) is like any other law passed by
Parliament.
Mr. Masaju contended that a constitutional amendment law is not like any
other law and that it is above ordinary law. That view was opposed by Mr.
Rweyongeza who was supported by Prof Mwaikusa. However, both the DPP
26
of Zanzibar and Prof Kabudi are of the same opinion as Mr. Masaju that a
constitutional amendment law is not like any other law.
The case of Kesavananda Bharat' v. State of Kerala, A. I. R. 1973 SC 1461
has been heavily relied upon in the High Court. We are grateful to Prof
Kabudi who pointed out that Justice KHANNA at p. 1903 stated:
The word 'law' in Art 13(2) does not include amendment of
the Constitution. It has reference to ordinary pieces of
legislation.
We are of the decided opinion that that is so. We say so because an
ordinary legi s lat ion can be enacted by a s imple major i ty of
parliamentarians. That is not so with a constitutional amendment law
whose enactment requires a specific number of votes. Art 98(1)(a) is loud
and clear that:
A Bill for an Act to alter any provisions of this Constitution
(other than those relating to paragraphs (b) of this
subarticle) or any provisions of any law specified in List One
of the Second Schedule to this Constitution shall be
supported by the votes of not less than two thirds of all the
Members of Parliament.
That paragraph speaks for itself but we have to point out that it is twothirds
of all the Members of Parliament and not just those sitting and
voting. An ordinary law is not subjected to that stringent requirement.
The second question that follows is whether such a constitutional
amendment can be reviewed by a court like any other law.
Mr. Othman Masoud and Prof Kabudi were again at one with Mr. Masaju,
that s. 27 of the Interpretation of Laws Act, Cap 1 [RE 2002] provides that
an amending Act is to be construed as one with the amended Act and so
Act No 34 of 1994 should be construed as one with the Constitution.
According to them the cardinal principle of Constitutional interpretation is
to read the entire Constitution as an entity. This Court said so in Julius I.F.
Ndyanabo v. A. G., Civil Appeal No. 64 of 2001. There is, therefore, a need
to harmonize the various articles of the constitution. This means that an
article of a constitution cannot be struck out or declared unconstitutional.
28
We agree with LUGAKINGIRA, J., as he then was, when he stated in Rev.
Christopher Mtikila v. Attorny General [1995] TLR 31 at p. 66, that:
What happens when a provision of the constitution enacting
fundamental right appears to be in conflict with another
provision in the Constitution? In that case the principle of
harmonization has to be called in aid. The principle holds
that the entire Constitution has to be read as integrated
whole, no one particular provision destroying the other but
each sustaining the other...
The learned judge went further:
If the balancing act should succeed, the Court is enjoined to
give effect to all the contenting provisions. Otherwise, the
court is enjoined to incline to the realisation of the
fundamental rights and may for that purpose disregard even
the clear words of a provision if the application will result in
gross injustice.
However, we do not subscribe to his last sentence. The court can never
ever disregard the clear words of a provision of the Constitution. That will
cause anarchy.
29
As Prof. Kabudi submitted there are two exceptions to the general
principle. The first exception is where there is a specific constitutional
provision prohibiting the amendment of certain articles of the constitution or
what are called entrenched provisions which are subject to immutable
principles.
We were given a number of examples of such provisions: Article 89 of the
Constitution of France of 1958, Article 139 of the Constitution of Italy of
1947, Article 288 of the Constitution of Portugal of 1975, and Article 4 of
the Constitution of Turkey of 1982. On the African soil there are Articles
174 to 178 of the Constitution of Algeria, Article 124 of the Constitution of
Chad of 31st March 2006, and also the Constitutions of Malawi, Namibia
and South Africa.
May be we use the case of Turkey to drive home the point of what are
entrenched provisions: Article 4 of the Constitution stipulates that: ... the
provisions of article 1 of the Constitution, establishing
the form of the state as a Republic, the provisions of article 2
on the characteristics of the Republic, and the provisions
30
of ar t icle 3 shal l not be amended, nor shal l thei r
amendment be proposed.
Then Articles 2 provides as follows:
The Republic of Turkey is a democratic, secular and social
state governed by the rule of law; bearing in mind the
concepts of public peace, national solidarity and justice;
respecting human rights; loyal to the nationalism of AtatOrk,
and based on the fundamental tenets set forth in the
Preamble.
Article 3 reads as follows:
The Turkish state, with its territory and nation, is an
indivisible entity. Its language is Turkish. Its flag, the form of
which is prescribed by the relevant law, is composed of a
white crescent and star on a red background. Its national
anthem is the "Independence March". Its capital is Ankara.
Another illustration is Article 178 of The Constitution of Algeria which
expressly prohibits constitutional amendments on:
(1) the republican nature of the State;
(2) the democratic order based on multi-party system;
(3) Islam as the religion of the State;
(4) Arabic as the national and official language;
31
(5) fundamental liberties, and citizen's rights;
(6) integrity of the national territory.
Article 131 of the Constitution of Namibia has an interesting proviso. The
marginal note reads: "Entrenchment of Fundamental Rights and
Freedoms".
No repeal or amendment of any of the provisions of Chapter
3, in so far as such repeal or amendment diminishes or
detracts from the fundamental rights and freedoms
contained and defined in that Chapter, shall be permissible
under this Constitution, and no such purported repeal or
amendment shall be valid or have any force or effect.
In such Constitutions if the Constituent Assembly or Parliament
purports to amend such entrenched provisions the courts have power to
declare the amendments to be unconstitutional and strike them out.
The second exception to the general rule is those jurisdictions where the
courts claim to have implied powers to protect "basic structures". The
argument is that the power of Parliament to amend the constitution is
limited. Their lordships in their judgment which is the subject matter of this
appeal said:
32
The Respondent contends that the amendments were
const i tut ional because they were duly enacted by
Parliament who have such powers under Article 98 (1) of
Constitution. We think that is not the issue here. We accept
the proposition that although the Parliament has powers to
enact legislation, such powers are not limitless. As Professor
Issa Shivj i in his ar t icle "Const i tut ional Limi ts of
Parliamentary Powers" published in the special edition of
THE TANZANIA LAWYER October, 2003 put it on p. 93: "...
the power to amend the Constitution is also limited. While it is
true that parliament acting in Constituent capacity can amend
any provision of the Constitution, it cannot do in a manner
that would alter the basic structure or essential features of
the Constitution.
Prof. Shivji cited his authority for that proposition as the decision of the
Supreme Court of India in Kesavananda v. State of Kerala (supra) which,
as already said, featured predominantly in the High Court.
Prof . Kabudi gave the histor ical background of the decision in
Kesavananda. He said that it was a result of a struggle between the
Executive and Parliament which started over the government's bid to effect
land reforms soon after independence. Prof. Kabudi went on to cite
33
pronouncements of Prime Minister Jawaharlal Nehru as evidence of the
struggle. We do not think that it is necessary to delve into that for the
purposes of this judgment except to say that at no time in the history of
this country have we had sour relationship between the Executive and the
Judiciary. That is extremely healthy and we wish to maintain it unless it is
absolutely necessary to depart from it.
Prof. Kabudi went further to point out that the Indian Supreme Court was
inspired by the lectures of a German scholar, Prof. Dietrich Conrad, titled
"Implied Limitations of the Amending Power" delivered in 1965 at the
Faculty of Law of the Banaras Hindu University. That is testified to by Prof.
Mahendra.P. Singh, Professor of Law at the University of Delhi in an
obituary article, "Bridging Legal Traditions: Professor Dietrich Conrad, 1932-
2001", published in the Frontline, Vol. 18 – Issue 18, Sep, 01-14, 2001,
and also A.G. Noorani in his article "Behind the 'basic structure'
doctrine: On India's debt to a German jurist, Professor Dietrich Conrad".
We agree with Prof Kabudi that the doctrine is nebulous as there is no
agreed yardstick of what constitutes basic structures of a constitution. In
34
this regard Prof. Shivji himself proposed some instances in his article stated
that the Parliament cannot:
.. amend the 1977 Union Constitution in any of its
provisions, it cannot amend it to change the nature of the
two government union or establish life presidency or abolish
the judiciary or turn the Parliamentary Standing Committee
on Powers, Privileges and Immunities into a court of law.
Such constitutional amendments would be beyond the
powers of the Parliament even in its constituent capacity
and therefore liable to be struck down because they alter
the basic structure of the Constitution.
We shall make our observations on this portion at a later stage. We may
also point out that even Prof. Conrad himself conceded that there is no
litmus test as to what constitutes basic structure. He wrote: in one of his
essays carrying the title "Basic Structure of the Constitution and
Constitutional Principles":
Finally, a note of caution might not be out of place. The
jurisprudence of principles has its own distinct dangers
arising out of the flexibility and lack of precision of principles
as well as their closeness to rhetorical flourish. This might
invite a loosening of judicial discipline in interpreting the
explicit provisions of the Constitution. ... Tightening of
35
judicial scrutiny would be necessary in order to diminish the
dangers of opportunistic use of such principles as mere
political catchwords.
Let us now examine our Constitution of 1977. We have already seen that Art
98(1) provides for the alteration of any provision of the Constitution, that is,
there is no article which cannot be amended. In short there are no basic
structures. What are provided for are safeguards. Under Art 98(1)(a)
constitutional amendments require two-thirds vote of all Members of
Parliament while Art 98(1)(b) goes further that:
A Bill for an Act to alter any provisions of the Constitution or
any provisions of any law relating to any of the matters
specified in List Two of the Second Schedule to this
Constitution shall be passed only if it is supported by the
votes of not less than two-thirds of al l Members of
Parliament from Mainland Tanzania and not less than twothirds
of all Members of Parliament from Tanzania Zanzibar.
List Two of the Second Schedule of the Constitution enumerates eight
matters, to wit:
1. The existence of the United Republic
2. The existence of the Office of the President of the United Republic.
3. The Authority of the Government of the United Republic.
36
4. The existence of the Parliament of the United Republic.
5. The Authority of the Government of Zanzibar.
6. The High Court of Zanzibar.
7. The list of Union Matters.
8. The number of Members of Parliament from Zanzibar.
These eight matters could have been basic structures in the sense that
Parliament cannot amend them. However, they are amendable once the
procedure for amendment is followed. So, there is nothing like basic
structures in our Constitution.
All the examples given by Prof Shivji as basic structures are not so. They
are contained in List Two: The abolishing of two governments is covered in
the authority of the Union Government and that of the Zanzibar
Government. Then the abolishing of the Judiciary is covered in the
existence of the High Court of Zanzibar and the designation of the Court of
Appeal as a Union Matter. All these matters can be amended under Art
98(1)(b). So, the examples given by Prof. Shivji are not basic structures of
the Constitution of Tanzania, 1977.
37
It is our considered opinion that the basic structures doctrine does not
apply to Tanzania and we cannot apply those Indian authorities, which are in
any case persuasive, when considering our Constitution.
After coming to that conclusion there is still an issue glaring at us: What
does the Tanzanian court do when there are articles which cannot be
harmonized?
LUGAKINGIRA, 1 and later J. A., one of our judicial luminaries, confessed to
have been in a dilemma. May be we let him soliloquy:
The position, as I see it, is now this: By virtue of art 21(1)
every citizen is entitled to participate in the government of
the country, and by virtue of the provisions of art 20(4)
such citizen does not have to be a member of any political
party; yet by virtue of art 39(c) and others to that effect, no
citizen can run for office unless he is a member of and
sponsored by a political party. This is intriguing. I am aware
that the exercise of the right under art 21(1) has to be In
accordance with procedure provided by or under the law,' but
I think that while participation through a political party is a
procedure, the exercise of the right of participation through a
political party only is not a procedure but an issue
38
of substance. The message is: either you belong to a
political party or you have no right to participate. There is
additionally the dimension of free elections alluded to in art
21. A citizen may participate in the government 'either
directly or through freely chosen representatives.' It is
contrary to every notion of free elections if non-party
citizens are compelled to vote for party candidates. In the
midst of this unusual dilemma I had to turn to the canons of
statutory and constitutional interpretation.
As we already pointed out at the beginning of this judgment, the learned
judge concluded without declaring the Eighth Amendment to be
unconstitutional. He said:
I declare and direct that it shall be lawful for independent
candidates, along with candidates sponsored by political
parties, to contest presidential, parliamentary and local
council elections.
This Court has already made its stand abundantly clear in Attorney General
v. W. K. Butambala, [1993] T. L. R. 46 at p. 51 when it said:
We need hardly say that our Constitution is a serious and
solemn document. We think that invoking it and knocking
39
down laws or portions of them should be reserved for
appropriate and really momentous occasions.
In that appeal this Court was dealing with the Criminal Procedure Code.
Here it is the Constitution itself. We have to be extra cautious.
That stand in Butambala was taken a step further in Mbushuu Dominic
Mnyaroje And Another v. R, [1995] T. L. R. 97 at p 117:
But the crucial question is whether or not the death penalty is
reasonably necessary to protect the right to life. For this we
say that it is the society which decides. The learned
judge in the above quoted passage acknowledges that
present ly the society deems the death penal ty as
reasonably necessary.
In that appeal the trial judge convicted the appellants of murder, did not
sentence them to hang but used the occasion to strike out the death
sentence as being unconstitutional. The Republic appealed and this Court
conceding that death penalty was inherently inhuman, cruel and degrading
punishment but observed that it was saved by Art 30(2). This Court was of
40
the decided opinion that the issue of annulling death penalty was the
responsibility of Parliament which is aware of public opinion.
In the judgment which is the subject matter of this appeal, their lordships
said:
So as to let the will of the people prevail as to whether or
not such [independent] candidates are suitable.
We are definite that the Courts are not the custodian of the will of the
people. That is the property of elected Members of Parliament.
The High Court of Kenya has the same view as expressed in a very recent
decision in Jesse Kamau & 25 Others v. A. G., [2010] eKLR where 24 clergy
men of various religious institutions challenged the inclusion of Kadhis'
Courts in the Draft Constitution. In their final orders three judges of the
High Court ruled:
As regards paragraph 2 of the prayers we find and hold that
sections 66 and 82 are inconsistent with each other, and
that section 66 is superfluous but it is not the court's role to
expunge it. It is the role of Parliament and the citizenry in a
referendum.
41
So, if there are two or more articles or portions of articles which cannot be
harmonized, then it is Parliament which will deal with the matter and not
the Court unless that power is expressly given by the Constitution, which,
we have categorically said, it has not.
However, situations can arise where the High Court and this Court can
nullify a constitutional provision on the ground that it is unconstitutional in
the sense that it was not enacted as provided for by Art. 98. An example is
where a constitutional amendment is challenged on the grounds that it did
not obtain the prerequisite number of votes according to Art. 98(1)(a). We
already pointed out earlier that generally a constitutional amendment
requires the support of a two-thirds majority and under Art 98(1)(b) the
support of two-thirds majority of all the Members of Parliament from
Zanzibar and all Members of Parliament from the Mainland. If such a
challenge is sustained then the court might have to find that the article has
not been enacted in accordance with the constitutional provisions and is,
therefore, unconstitutional.
In such a situation the courts will be performing its constitutional function
of maintaining checks and balances. Otherwise, Tanzanian courts exercise
42
calculated restraint to avoid meddling in constituencies of the other two
pillars of the State. This has been amply demonstrated in numerous
decisions. LUGAKINGIRA, J., himself in his ruling in Rev. Mtikila's case
refused many prayers as being not justiciable. We agree with Prof
Mwaikusa that it is a pity that that ruling has not been reported. We
recommend to the Editorial Committee to report it.
Another example of such judicial restraint is Mwalimu Paul John Mhozya v.
Attorney General (No. 1) [1996] TLR 130 (HC). The applicant sought an
interlocutory injunction to restrain the President of the United Republic of
Tanzania from discharging his functions pending a determination of the
main case in which the applicant sought orders of declaration that: (a) the
Constitution of the United Republic had been violated; (b) the President
was guilty of having allowed or enabled the said violation; and (c) the
continued exercise of presidential powers by President Ali Hassan Mwinyi
was unconstitutional and a potential danger to the well being of the
country and its citizens. It was held, inter alia,:
(iii) The principle that the functions of one branch of
government should not encroach on the functions of
another branch is an important one to ensure that the
43
governing of a state is executed smoothly and
peacefully;
(iv) No provision of the Constitution or any other law
authorises the High Court to hold that the President
can be removed or suspended from office by a body
other than that which the Constitution specifically
provides for;
(v) This Court has no jurisdiction to issue the order of
injunction sought against the President.
Ground one is, therefore, allowed: a court cannot declare an article of the
Constitution to be unconstitutional except where the article has not been
enacted in accordance with the procedure under Art 98(1)(a) and (b).
After saying all that it is obvious that we cannot legally say that
independent candidates are allowed. That is the province of Parliament to
amend the Constitution according to Art 98(1).
We may as well add that apart from the legal argument we have advanced
there is a purely practical issue. Where will we stop? The argument is that
the provisions of Art 21 have been abridged since a candidate has to
belong to and be sponsored by a political party. The next complaint will be
44
why should a parliamentary candidate be required to be of the age of 21
years and a presidential candidate 40 years? Why not be the age of
majority of 18 years? Also why should the presidential candidate be a
citizen born in Tanzania? Why do we exclude those born outside the
Republic simply because their parents were faithfully serving the Republic
outside the country? Are all these not abridging Art 21?
Having said all this, and having made our conclusion obviously clear, we
now turn to a litigation which is on all fours with this current appeal: the
case before the Inter-American Court of Human Rights, Jorge Castalieda
Gutman v. Mexico. Briefly stated the facts in this case are as follows:
On 05/03/2004 Jorge applied to the General Council of Federal Electoral
Institute to be registered as an independent presidential candidate claiming
to exercise his rights under Art 35 (II) of the Mexican Constitution which
reads as follows:
Article 35. The citizen shall have the following prerogatives:
II. To be able to be elected for any elected public office
and appointed to any other employment or assignment,
45
if he complies with the requirements established by law;
(The emphasis is ours).
The application was refused because an Electoral Law provides:
... only the national political parties have the right to
request the registration of candidates to elected office.
(Emphasis is ours).
Jorge unsuccessfully exhausted local remedies so, on 12th October, 2005, he
filed a petition with the Inter-American Commission on Human Rights which
made certain recommendations to the Mexican Government and gave it
two months to report on actions taken to implement them. As time lapsed
and no progress was made, the Commission lodged before the Court an
application against Mexico:
... to claim the constitutionality of political rights and the
consequent impediment for Jorge Castalieda Gutman ... to
register his independent candidacy for the presidency of
Mexico [in the elections held in July 2006].
After disposing four preliminary objections and a lengthy deliberation
covering 251 paragraphs and 61 pages, seven judges of the Court
concluded its judgment in the following terms in relevant parts:
46
DECLARES,
unanimously, that:
3. The State did not violate, to the detriment of Jorge
Castarieda Gutman, the political right to be elected
recognized in Article 23(1)(b) of the American Convention
on Human Rights, in relation to Articles 1(1) and 2 thereof, in
the terms of paragraphs 134 to 205 of this judgment.
Art 23 of the American Convention on Human Rights provides:
Article 23. Right to participate in government
1. Every citizen shall enjoy the following rights and
opportunities:
a. to take part in the conduct of public affairs, directly or
through freely chosen representatives;
b. to vote and to be elected in genuine periodic elections,
which shall be by universal and equal suffrage and by secret
ballot that guarantees the free expression of the will of the
voters; and
c. to have access, under general conditions of equality, to
the public service of his country.
2. The law may regulate the exercise of the rights and
opportunities referred to in the preceding paragraph only on
the basis of age, nat ional i ty, residence, language,
education, civil and mental capacity, or sentencing by a
competent court in criminal proceedings
Art 23 goes much further than our Art 21, yet the Electoral Law, and NOT
the Constitution, as is in our case, was held not to violate it.
47
In our case, we say that the issue of independent candidates has to be
settled by Parliament which has the jurisdiction to amend the Constitution
and not the Courts which, as we have found, do not have that jurisdiction.
The decision on whether or not to introduce independent candidates
depends on the social needs of each State based on its historical reality.
Thus the issue of independent candidates is political and not legal
However, we give a word of advice to both the Attorney General and our
Parliament: The United Nations Human Rights Committee, in paragraph 21 of
its General Comment No. 25, of July 12, 1996, said as follows on Article 25
of the International Covenant on Civil and Political Rights, very similarly
worded as Art 23 of the American Convention and our Art 21:
The right of persons to stand for election should not be
limited unreasonably by requiring candidates to be members of
parties or of specific parties.
Tanzania is known for our good record on human rights and particularly
our militancy for the right to self determination and hence our involvement
48
in the liberation struggle. We should seriously ponder that comment from a
Committee of the United Nations, that is, the whole world.
Each party is to bear its own costs both in this Court and below.
DATED at DAR ES SALAAM this 17th day of June, 2010.
A. S. L. RAMADHANI
CHIEF JUSTICE
E . N . M U N U O
JUSTICE OF APPEAL
J . H . S O F F E
JUSTICE OF APPEAL
N . P . K I M A R O
JUSTICE OF APPEAL
49
4 -JR a t
M. S. MBAROUK
STICE OF
APPEAL
B.M. LUANDA
JUSTICE OF APPEAL
S. MJASIRI
JUSTICE OF APPEAL

END
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