Having seen the decision by the High Court, here is the decision of the Court of Appeal. I hope this will help those who wish to compare the two judgement to have a good position to make comparisons and therefore give a good argument.
THE COURT OF APPEAL
OF TANZANIA
AT DAR ES SALAAM
ILLAMADHANI, C. J.; MUNUO, J. A.;
MSOFFE J. A.; KIMAROJ,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 , 2006
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 renumbered 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 everything I have
endeavored to state 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
3
1979, 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
will not apply to the council elections due in a
few days.
(Emphasis is ours.)
The
learned judge restrained himself 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
4
was before its amendment by Act 34 of 1994,
and as it reads now after the amendment. Before the amendment it read as
follows:
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 everything I have endeavored to state 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
candidates, along with candidates sponsored by
political parties,
to contest presidential,
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, ...
5
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:
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.
0)
Costs
of this petition be borne by the Respondent.
a)
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,
6
assisted by Mr.
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. 7
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
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 which8the
right decision of the case appears to depend.
The
High Court itself said in its judgment:
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.
0) Whether the said sections meet the proportionality
test?
0)
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 9Mwakanyamale v. N. B.
C. (1997) Ltd.
Civil
Appeal No. 63 of 2003
(unreported) cited with approval the
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 court 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
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
11
retrial. We are of
the decided opinion that even if issues were not framed,
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
12
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.
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]13 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
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 with
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 give birth to chaos and
14
political pandemonium we
shall 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
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 15a
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
direction that independent candidates are lawful is an
empty statement. Anyway, we are not sitting 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 restriction 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
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
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
17
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
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
|
|
|
18
|
of
|
State
|
|
|
"Fundamental Objectives
and Directive Principles
|
|
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
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 mbili 19za
Muungano zichukue hatua zipasazo kusawazisha vifungu hivi na vyengine vyenye
utata ama uwezekano wa kuleta utata baina
That can be
translated as follows:
We
recommend to the relevant authorities on both sides of the Union, to take
necessary steps to harmonize these conflicting sections and other sections 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 20accorded
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.
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.
21
So, the High Court had jurisdiction to entertain the
petition and ground one is dismissed in its entirety.
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. otection of the constitution and that their chambers get worried when
Mr. Masaju started by pointing out that courts are
entrusted with the
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
23
indeed declare some provisions of the Constitution,
unconstitutional".
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
25
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
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
26
opposed by Mr.
Rweyongeza who was supported by Prof Mwaikusa.
However, both the DPP
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
legislation can be enacted by a simple majority 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 two-thirds 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 read28the
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.
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
29
Constitution. That
will cause anarchy.
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
30
the
form of the state as a Republic, the provisions of article 2 on the
characteristics of the Republic, and
of article 3 shall not be amended, nor shall their
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;
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:
The Respondent contends that
the amendments were constitutional 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 Shivji in his article "Constitutional Limits
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 historical
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
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 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
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 all Members of Parliament from Mainland Tanzania and not
less than two-thirds 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.
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.
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
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
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 presently the society deems the death
penalty 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
40
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
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 role41 to
expunge it. It is the role of
Parliament and the citizenry in a referendum.
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
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 country43 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
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
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
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
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
0.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, nationality, 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
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 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 . RAM ADHANI
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
M.
S. MBAROUK STICE OF APPEAL
B.M.
LUANDA
JUSTICE
OF APPEAL
MJASIRI JUSTICE OF
APPEAL
