IN THE HIGH COURT OF TANZANIA
(DAR
ES SALAAM MAIN REGISTRY)
AT
DAR ES SALAAM
MISC.
CIVIL CAUSE NO. 10 OF 2005
MANENTO
J.K. MASSATI J. MIHAYO J:
CHRISTOPHER MTIKILA ……………………………..
PETITIONER
VERSUS
THE ATTORNEY GENERAL …………………………. RESPONDENT
_______________
JUDGMENT
Date of Hearing – 6/2/2006
Date of Ruling – 5/5/2006
MASATI,
J:
The Petitioner, REV. CHRISTOPHER MTIKILA, is a very
determined man. In 1993 he filed a
petition in the High Court at Dodoma, to seek among other reliefs, a
declaration that the citizens of this country have a right to contest for the
posts of president, member of parliament and local government councilor without
being forced to join any political party.
The High Court decided in his favour on this aspect. The government filed an appeal against that
finding, but later withdrew the appeal and sent a bill in parliament to
legislate in anticipation against that decision of the court. As we shall shortly see below that law is the
subject matter of the present proceedings.
It could have
been assumed that the petitioner had a motive for doing so in 1993, because by
then he was still fighting to register his political party, the Democratic
Party, as illustrated by his earlier petition.
Having secured
the registration of his party, the petitioner who describes himself as the
chairman of the Democratic Party has come again to this Court for the following
orders:
(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 2(1) of the Constitution of the United Republic of Tanzania to contest
for the post of the president of the United Republic of Tanzania and/or 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.
The gravamen of
the Petitioner’s complaints are couched in paragraphs 7, 8 and 9 of his
petition which is to say: first, that the said constitutional amendments are
violative of the Basic Human Rights as proclaimed in Article 21(1) of the
Constitution, two, that the said constitutional amendments are violative of
Article 9(a) and (f) of the Constitution, three, that the said amendments are
violative of Article 20(4) of the Constitution, and fourthly, the said constitutional
amendments are a violation of International Covenants on Human Rights to which
the United Republic is a party.
According to the petition the effect of all these amendments is that an
ordinary Tanzanian is forced to join a political party in order to participate
in government affairs in order to be elected to any of the posts of president
or member of parliament.
The Respondent
Attorney General resists the petition.
The kernel of his objection is contained in paragraph 4 of his Answer to
the Amended petition. It is to this
effect:
“…
the enactment of Act No. 34 of 1994 which was coupled with Constitutional amendments of the said Article
is valid, legally done in a general
way, for a specific public good and not in violation of any basic human rights. Further to that the Respondent states that
the said constitutional amendments were
not discriminatory at all as the law is applicable
to all people and all candidates who wish to contest in elections”.
In short, the
bone of contention between the parties in this petition is whether the
amendment to the Constitution introduced by Act No. 34 of 1994 is
constitutional.
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 Articles
39(1)(c) and 39 (2) and Article 67(b)
and 67(2)(e) are unconstitutional.
(ii) Whether the said sections meet the
proportionality test?
(iii) Whether the said amendment introduced by
Act No. 34 of 1994 contravene
the International Instruments signed ratified and deposited by the Government of the
United Republic of Tanzania?
We believe that
no injustice will be done if we decide the petition on the basis of those
issues even if we did not frame them at the beginning of the hearing of this
petition, which was effectively in the form of written submissions. Counsel were also accorded opportunity to
elaborate on their written submissions orally.
Mr. Rweyongeza
and Mr. Mpokie learned Counsel appeared for the petitioner. Mr. Mwaimu and Ms. Ndunguru appeared for the
Respondent.
It was the
petitioner’s submission that the amendments to Article 39 and 67 introduced by
Act 34 of 1994 restricting the right to contest in elections for president and
member of parliament to political party candidates only are violative of the
Basic Rights contained in Article 21(1) of the Constitution, which gives a
citizen, the right of association, and also violative of Article 20(4) of the
Constitution which prohibits the enactment of laws forcing people to join any
society or corporation. Mr. Rweyongeza
and Mr. Mpoki, submitted that the said provisions are a limitation for citizens
who desire to contest for those political posts. They submit that such provision is
discriminatory because it tends to discriminate citizens who are members of
political parties against those who are not members in contesting for political
posts. The learned Counsel quoted
several principles laid down by Lugakingira J. (as he then was) in REV. MTIKILA Vs. ATTORNEY GENERAL
[1995] TLR. 31.
The learned
Counsel further submitted that since REV.
MTIKILA Vs. ATTORNEY GENERAL (supra) upheld the fundamental rights
contained in the Constitution, the legislation of Act 34 of 1994 was void, on
the score of repugnancy. They cited from
SYLVIA SNOWSIS’ book JUDICIAL REVIEW AND THE LAW OF THE
CONSTITUTION (Universal Law Publishing Co Pot Ltd, 2nd Reprint
1996, wherein the cases of LESSEE Vs.
DORRANCE and KAMPER Vs. HEWKINS
were referred to.
Submitting on
the second issue which is whether the said provisions meet the proportionality
test, Mr. Rweyongeza and Mr. Mpoki, submitted, first, that it was incumbent
upon the Respondents to prove that the challenged legislation is within the
purview of the exception. For that
principle the learned Counsel relied on two Indian cases namely SAPHIR AHMED Vs. STATE OF UTRAH PRADESH
[1954] AIR SC 729 and DEANA Vs. UNION
[1984] 1 SCRI.
Coming closer at
home, the learned Counsel cited the Tanzania Court of Appeal decision in KUKUTIA OLE PUMBUN & ANOTHER Vs.
ATTORNEY GENERAL AND ANOTHER [1993] TLR. 159, where it was held that for a
legislation to pass the proportionality test, it must be shown that it is not
arbitrary, and that the limitation is reasonably necessary to achieve a
legitimate objective. They concluded on
this issue that the impugned law does not meet the proportionality test.
Lastly, Mr.
Rweyongeza and Mr. Mpoki, submitted that the Act violated the Universal
Declaration of Human Rights and the African Charter on Human and Peoples’
Rights. The said International
Conventions must be taken into account in interpreting the Bills of Rights and
Duties. For that statement, the learned
Counsel relied on the Court of Appeal decision in DPP Vs. DAUDI PETE [1993] TLR. 22.
In concluding
their submission on the third issue, the learned Counsel for the petitioner
said that in all its activities, the Constitution enjoins, the Government to
adhere to the directives, principles of state policy, and this includes, in
their duty to make laws. The learned
Counsel therefore penned off by praying that the petition be allowed with
costs.
Mr. Mwaimu, the
learned Principal State Attorney and Ms. Ndunguru, learned State Attorney
submitted on the first issue that the amendments to the Constitution were done
within the powers of the legislature and that did not breach any provision of
the constitution. For this, the learned
state Counsel sought to rely on Article 98(1) & (2) of the
Constitution. They stated further that
this position was also supported by Lugakingira, J. (as he then was) in REV. MTIKILA Vs. ATTORNEY GENERAL
(supra).
On the issue
whether the amendments violated Article 21(1) of the Constitution, the learned
Counsel submitted that the amendments were done for a specific public
good. They state in their submission:
“The
prohibition to individual contestants in general and local governments elections is one way to achieve
representative democracy. The
constitution primarily aims at
establishing and safeguarding a representative democracy which is the policy our country follows, it
is a policy, which intends to safeguard
peace, order security and tranquility”.
And further
down, the learned State Attorneys submit:
“The
principle requiring an individual who is vying for leadership to contest through a political party is intended to
ensure that whoever is made a candidate
is well known to the people he wants to lead”.
These, the
learned Counsel informed the Court, are the reasons why the Parliament decided
to prohibit private candidacy.
It was submitted
for the Respondent that the question whether the restriction is reasonable must
be decided on a case to case basis, citing decisions by the constitutional
Court of South Africa (SOUTH AFRICA Vs.
MAKWANYANE [1995] (3) S.A. 391 and another of S Vs. BHULWANA [1996] (1) S.A. 388 9cc). They submitted that those views are
persuasive to our Courts. On the basis
of those decisions Mr. Mwaimu, and Ms. Ndunguru submitted that the amendment
was not only good for representative democracy but also for balancing the
interests of the public at large.
Responding to
the question of discrimination, the learned state attorneys submitted that the
amendment was meant for all those who aspire for leadership for the principle of
equality does not require every one to be treated the same, but simply that
people in the same position should be treated the same. Citing another South Africa case of PRESIDENT OF REPUBLIC OF SOUTH AFRICA Vs.
HUGO [1997] 4 S.A. 1 CC cited in a book BILL OF RIGHTS HANDBOOK. The
learned Counsel submitted in the alternative that sometimes it is possible to
justify discrimination as an exception if the purpose is to meet the ends of
affirmative action. This is called the
principle of “fair discrimination”.
The learned
state attorneys submitted further that Articles 21 (1), 39 (1) (2), 67 (1) (b)
2, and Article 20(4) if read together, it will be noted that Article 21(1) does
not create any procedure. They submitted
that the procedure for enfranchisement are found in kthe Elections Act and its
Regulations. Therefore, it was not
correct that there is no procedure for enfranchisement. They went on to submit that the fear that the
provision could lead to abuse and confine the right to govern to a few and to render
illusory the emergence of a truly democratic society, was unfounded and could
not justify the declaration that the provision was unconstitutional. They submitted that on the contrary private
candidates are uncertain, and unreliable and could easily abuse powers as they
would not originate from the people.
The learned
Counsel then went on to distinguish the cases cited by the petitioner on the
question of the proportionality test as all the cases cited dealt with the
provisions in the statutes, whereas the present case deals with the
Constitution itself which is a result of the will of the people.
On the last
issue, the learned state attorneys submitted that while it is not disputed that
Tanzania was a signatory to the Universal Declaration of Human Rights and
ratified the African Charter for Human and Peoples Rights, these instruments
have their limitations. They cited the
example of Article 29(2) of the Universal Declaration of Human Rights, which
provides to the effect that the exercise of those rights shall be subject to
such limitations as may be imposed by law for the purpose of securing and
recognition of the rights and freedoms of others. On that premise, the learned Counsel
submitted that since the Constitution advocates representative democracy, the
amendments were necessary in order to maintain the requirements of morality,
public order and general welfare of the people. And so the amendments were
within the letter and spirit of the international instruments for Human Rights.
At the end of the day the learned state attorneys prayed that the petition be
dismissed with costs.
In their
rejoinder, Mr. Rweyongeza and Mr. Mpoki, learned Counsel have submitted that
although the Parliament is given wide powers to amend constitutional provisions
those powers are subject to the limits imposed by Article 30(2) and 31 of the
Constitution. For that proposition they
relied on the reasoning of Lugakingira J. (as he then was) in REV. MTIKILA Vs. ATTORNEY GENERAL (supra). Relying on the cases of PETER NG’OMANGO Vs. KIWANGA AND ANOTHER [1993] TLR. 77, DPP Vs. DAUDI PETE [1993] TLR 22, and MBUSHUU Vs. REPUBLIC [1995] TLR
97. The learned Counsel submitted that
the amendments sought to be impugned do not meet the proportionality test. They submitted that private candidacy was not
inconsistent with representative democracy.
Therefore private candidacy would not erode the principle of
representative democracy. They submitted
further that there were no adequate safeguards and control against abuse by
those in authority in the exclusive political party system, and so it does not
fall within one limb of the proportionally test. Referring to the Sough African case of MAKWANYANE (supra), cited by the
Respondent’s Counsel, Mr. Rweyongeza and Mr. Mpoki, submitted that persuasive
as that decision, is, it is also authority for the need to widen the horizon of
the principle of proportionality test, so that, it was desirable that the
effect of a provision should not negate the content of the right in question,
and that, the learned Counsel went on, was the essence of the decision in REV. MTIKILA Vs. ATTORNEY GENERAL
(supra), in that the decision was made in order, not to negate the essential
content of the right of an independent candidate. So, if anything, the South African case is a
persuasive authority for widening the scope of the proportionality test.
On the question
whether or not there was any procedure set by statute, the learned Counsel
reminded the Court that the issue was settled by Lugakingira, J. (as he then
was) in MTIKILA Vs. ATTORNEY GENERAL
(supra) in that by using the harmonization principle where the balancing act
does not succeed courts should incline towards the realization of the
fundamental rights even at the cost of disregarding the clear words of a
provision if their application would result in gross injustice.
On the authority
and influence of international covenants, the learned Counsel for the
petitioner reiterated their conviction on the weight to be attached to such
instruments as illustrated I the DAUDI
PETE case (supra). The learned
Counsel concluded their submission by praying that the petition be allowed.
It is now our
turn to examine and analyse the rival arguments of the legal Counsel. But before we embark on this we think it is
opportune for us to recapitulate the principles which will guide us in this
task. These are those that govern the interpretation of the constitution and
resolution of constitutional disputes.
These principles
have mostly been developed by case law, and they are numerous, but in the
present case we intend to adopt only those which we consider to be relevant in
the circumstances of the case.
In Civil Appeal
No. 64 of 2001 JULIUS ISHENGOMA FRANCIS
NDYANABO Vs. THE ATTORNEY GENERAL (unreported) the Court of Appeal of
Tanzania (Samatta C.J.) at pp. 17 – 18 laid down five principles.
(1) The Constitution of the United Republic
is a living instrument, having a
soul and consciousness of its own.
Courts must therefore endeavor to
avoid crippling it by construing it technically or in a narrow spirit. It
must be construed in tune with the lofty purpose for which its makers framed
it.
(2) The provisions touching fundamental
rights have to be interpreted in a broad
and liberal manner, thereby jealously protecting and developing the dimensions of those
rights and ensuring that our people enjoy their rights, our young democracy not only
functions, but grows and the will and dominant aspirations of the
people prevail. Restrictions on fundamental rights
must therefore be strictly construed. So
Courts have a duty to
interpret the Constitution so as to further fundamental Objectives and Directives of State policy.
(3) Until the contrary is proved legislation is presumed to be constitutional. If possible a legislation should receive such
a construction as will make it
operative and not in operative.
(4) Since there is a presumption of constitutionality of a
legislation save where there is
a clawback or exclusion clause relied upon as a basis for constitutionality the onus is upon those who challenge
the constitutionality of the
legislation, they have to rebut that presumption.
(5) Where those supporting a restriction on a
fundamental right rely on a clawback
or exclusion clause in doing so, the onus is on them to justify the restriction.
Although not
expressly included in the fifth principle it was the Court’s view also
(adopting its own decision in KUKUTIA
OLE PUMBUN AND ANOTHER Vs. ATTORNEY GENERAL AND ANOTHER [1993] TLR. 159; as
a rejoinder to that principle that:
“Whoever
relies on a clawback or exclusion clause has to prove that the restrictions are not arbitrary, unreasonable
and disproportionate to any claim of
state interest.
The other
principles of constitutional interpretation include:-
(6) Courts are not concerned
with the legislative wisdom of Parliament. They are concerned only with its legislative competence.
(7) While
parliament cannot directly override a decision of a Court of law declaring a statute unconstitutional and pronounce it to have been valid, it can make a
fresh law, free from unconstitutionality
(8) Courts do
accept that civilization owes quite as much to those who limit freedom as to those who expand it.
(9) A Constitution must not be construed in
isolation, but in its context
which includes the history and background to the adoption of the Constitution
itself. It must also be construed in a way which secures
for individuals the full measure of its provisions”.
Beginning with
the immediately forgoing principle of constitutional interpretation let us
briefly attempt to give a historical glimpse to the provisions relating to
representative democracy in the genesis of the history of post independent
Tanzania.
The constitutional
history of Tanzania begins with the Tanganyika (Constitution) Order in Council,
1961 published as Government Notice No. 415 of 1/12/61. The Second Schedule thereof was THE CONSTITUTION OF TANGANYIKA. Section 20 of that Constitution declared universal
adult suffrage to every citizen of Tanganyika who had attained the age of 21
years, unless disqualified by an Act of Parliament. Sections 18 and 19 of the Constitution
governed the qualifications and disqualifications for elections at the National
Assembly. Section 18 provided:
“18 Subject to the provisions of
Section 19 of this Constitution, any person who:
(a) is a citizen of Tanganyika
(b) has attained the age of
twenty one years, and
(c) is able to speak, and unless
incapacitated by blindness or other physical
cause to read the English language with a degree of proficiency sufficient to enable him to take an active part in
the proceedings of the National
Assembly”.
“shall
be qualified for election as a member of the National Assembly, and no other person shall be so qualified”.
The next
Constitution was C.A. Act No. 1 of 1962.
(The Constitution of Tanganyika) Section 24 of the Republican
Constitution retained the same qualification for being elected to the National
Assembly. But Section 4(3) also listed
down the qualifications for election of President. It reads”
“4(3)
Any citizen of Tanganyika who:
(a) is qualified
to be registered as a voter for the purposes of elections to the National Assembly.
(b)
has attained the age of thirty years and,
(c) in the case of elections
held on a dissolution of Parliament, is nominated
by not less than one thousand persons registered as voters for the purposes of elections
to the National Assembly shall be qualified
for elections as President”.
It may be noted
in passing here that in these constitutions there was no political party
membership qualifications, although there were several active political
parties.
Next, was the
Interim Constitution which followed the union of Tanganyika and Zanzibar. Notably, Article 3(1) declared Tanzania as a
one political party state …..
“3(3) All political activity in Tanzania other than
that of the organs of State of the
United Republic ............... shall be conducted by or under the auspices of the party”.
Article 4(4)
forbade:
“No
Act of Parliament shall provide for the disqualification of any citizen of Tanganyika from registration as a voter
for the purposes of elections by the people
or for the disqualification of any such registered voter from voting at such elections except on the grounds of his
allegiance to another state, infirmity
of mind, criminality, absence or failure to produce evidence of age, citizenship or registration”.
So while
political activity was confined to be conducted under the party all the
citizenry had the universal franchise to vote.
But this Constitution did not expressly provide for the qualifications
of a presidential candidate, like Section 4(3) of the 1962 Republican
Constitution. Instead, the 1965
Constitution left it to the Electoral Conference to nominate a presidential
candidate. This was the Electoral
Conference of TANU as defined in Part E of the party’s Constitution which was
annexed as a schedule to the 1965 Interim Constitution.
Unlike the 1961
and 1962 Constitutions, Article 27 of the 1965 Interim Constitution introduced
for the first time, party membership qualification for candidates of
constituency members. It provided:
“27(1) Any citizen of Tanzania who has attained the
age of twenty one years and is a member of the Party shall, unless
he is disqualified under the following
provisions of this section or an Act of Parliament to which this section refers be qualified for election
as a constituency member, and no other person shall be so qualified”.
So, party
membership, as a qualification for an elective, post, was introduced in the
country with the advent of a one party state.
It is an undeniable historical fact.
We must hasten
to add that although there were other political parties up to 1965 the previous
constitutions did not provide for party membership qualification. In 1977 Tanzania enacted its first permanent
constitution, with CHAMA CHA MAPINDUZI, entrenched
as the only political party in the country.
Article 4(2) retained the universal suffrage as in the previous
constitutions. No express qualifications
were spelt down for a presidential candidate but his political membership is
strongly implicit because the candidate has to be nominated by the party’s
General Meeting. But for candidates of
Constituency Assembly, Article 26 of the 1977 Constitution provides:
“26(1) Ili mtu aweze kuchaguliwa kuwa Mbunge wa
kuwakilisha wilaya ya uchaguzi ni, lazima awe na sifa
zifuatazo:-
(a) ………………………
(b)
awe mwanachama wa chama anayetimiza masharti ya uwanachama kama yalivyoelezwa
katika katiba ya chama na pia awe
na sifa za kiongozi zifuatazo:- etc…”
This
constitution was amended in 1985 to introduce the Bill of Rights. Article 3(3) entrenched the one party state:
“3(3) Chama
Cha Mapunduzi, kwa kifupi CCM ndicho chama cha siasa
pekee katika Jamhuri ya Muungano”.
Universal
franchise was retained in Article 5 Article 10 provides:
“10(1) Shughuli zote za kisiasa nchini na zinazohusu
Jamhuri ya Muungano zitaendeshwa
ama na chama chenyewe au chini ya uongozi, usimamizi wa chama”.
This edition of
the Constitution introduced Articles 20 and 21, which we find relevant in the
present petition. Article 20(1)
provides:
“20(1) Kila mtu anastahili kuwa huru, bila ya kuathiri
sheria za nchi kukutana
na watu wengine kwa hiari yake na kwa amani, kuchanganyika
na kushirikiana na watu wengine, kutoa mawazo hadharani,
na hasa zaidi kuanzisha au kujiunga na vyama au mashirika
yaliyoanzishwa kwa madhumuni ya kuhifadhi au kuendeleza imani au maslahi yake au maslahi mengineyo.
(2) Bila
ya kuathiri sheria za nchi zinazohusika ni marufuku kwa mtu yeyote kulazimishwa
kujiunga na chama chochote.
Article 21(1)
provides:
“21(1) Kila raia wa Jamhuri wa Muungano anayo haki ya
kushiriki katika shughuli
za utawala wan chi, ama moja kwa moja, au kwa kupitia wawakilishi waliochaguliwa na
wanacnhi kwa hiari yao kwa kuzingatia
utaratibu uliowekwa na sheria au kwa mujibu wa sheria.
(2) Kila
raia anayo haki na uhuru wa kushiriki kikamilifu katika kufikia uamuzi juu ya mambo
yanyomhusu yeye, maisha yake au yanayolihusu taifa.”
Let us now go to
the provisions governing the qualifications for presidential and constituency
members” qualifications the subject matter of the present dispute.
With the 1985
amendments Article 39 of the Constitution read:
39.
Mtu hatastahili kuchaguliwa kushiriki kiti cha Rais wa Jamhuri ya Muungano isipokuwa tu kama:
(a) ametimiza
unri wa miaka arobaini na
(b) anazo sifa za
kumwezesha kuchaguliwa au kuteuliwa kuwa Mbunge auMjumbe wa
Baraza la Wawakilishi”.
The
qualifications for a member of parliament are spelt out in Article 67(1) of the
Constitution:
“67(1) Bila ya kuathiri masharti yaliyomo katika ibara
hii, mtu yeyote atakuwa
na sifa za kustahili kuchaguliwa au kuteuliwa kuwa Mbunge endapo:
(a) …………………………..
(b) ni
mwanachama wa chama anayetimiza masharti yote ya uanachama
yaliyoelezwa katika katiba ya chama ………”
And “Chama” is defined in Article 151 to
mean:
…
Chama Cha Mapinduzi kilichotajwa katika ibara ya 3(3) nay a (10) ya Katiba hii”.
The dominance of
Chama Cha Mapundizi was abolished by an amendment to Article 10, introduced by
Act No. 4 of 1992, with the advent of multiparty politics in Tanzania while
Articles 20 and 21 remained intact.
Section 13 of
Act No. 4 of 1992 amended Article 39 but retained paragraph (c) of the
qualifications for a presidential candidate.
“(c) ni mwanachama na mgombe aliyependekezwa na
chama cha siasa”.
What the law did
here is to transfer that qualification, which was initially only by
implication, to an express one. On the
other hand Article 67(1)(b) remained the same except that for one to be elected
as a parliamentarian he must now be:
“mwanachama
na ni mgombea aliyependekezwa na chama cha siasa”.
The 8th
Amendment (Act 4 of 1992) also amended Article 77(3) of the Constitution by
providing that”:
“(3) Wagombea uchaguzi katika jimbo la uchaguzi
watatakiwa watimize yafuatayo:
(a)
wawe wamependekezwa mmoja mmoja, na chama cha siasa
kinachoshiriki uchaguzi katika kjumbo hilo”.
Before that,
Article 77(1)(2) required a nominated parliamentary candidate to be approved by
the party’s National Executive Committee, a position since the promulgation of
the 1965 Interim Constitution (Article (28)) (b) and the 1977 Constitution
(Article 27(2)(b).
It is those
provisions which this petitioner challenged in his Misc. Civil Cause No. 5 of
1993. After due considerations and
visiting numerous authorities, the learned Justice Lugakingira in that case
(reported as) REV. CHRISTOPHER MTIKILA
Vs. ATTORNEY GENERAL (supra) at p. 68 concluded:
“For
everything I have endeavored to state and notwithstanding the exclusionary elements to that effect in
articles 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, parliamentary and local Council
elections. This will not apply to the
Council elections due in a few
days”.
Aggrieved by this
declaration, the Respondent filed an appeal to the Court of Appeal while the
Petitioner also cross appealed against certain decisions made adverse to
him. This was Civil Appeal No. 3 of
1995. It cannot also be disputed that while
the appeal was pending the Respondent processed a bill and proceeded to enact a
law which had the effect of rendering the ruling of the High Court ineffective
and/or a nullity.
On that ground
the Respondent applied to withdraw the appeal.
The Court of Appeal of course had to grant the application for
withdrawal but speaking through KISANGA
Ag. C.J. the Court of Appeal lamented at p. 3 of the typed judgment:
“… We
are constrained to have to point out some aspects in the handling of this matter by the appellant which
cause great concern. While the ruling
was being awaited, the Government on
16/10/1994 presented a Bill in Parliament seeking
to amend the Constitution so as to deny the existence of that right, thus pre-emptying the Court Ruling
should it go against the Government.
This is where things started
going wrong. The Government was not
adopting parallel causes of action
towards the same end by asking Parliament to deal with the matter simultaneously with the High Court. That was totally wrong for reasons which will be apparent
presently.
Thus
the government consciously and deliberately draw the judiciary into a direct clash with Parliament by asking
the two organs to deal with the same matter
simultaneously. Such a state of affairs
was both regrettable and most undesirable. It was wholly incompatible with the smooth
administration of justice in the
country and every effort ought to be made to discourage it”.
The Court then
went on to observe in conclusion:
“In
the instant case had the amendment been initiated and passed after the Court process had come to a finality
that in law would have been alright procedurally,
the soundness of the amendment itself, of course, being entirely a different matter. Then the clash would have been avoided. Indeed that would
be in keeping with good governance which today constitutes one of the attributes of a democratic society”.
The amendments
referred to in the judgment of the Court of Appeal are those made by Act No. 34
of 1994 which as observed, was passed by the Parliament on 16/101994 while the
Ruling of Lugakingira, J. (as he then was) was handed down on 24/10/94, as it
was still pending when the Parliament enacted the law. As a matter of procedure, we must, at once condemn
this act of the Respondent as being contrary to the dictates of good
governance, and for which we can do no more than quote the above cited passage
from the judgment of the Court of Appeal.
We shall leave it at that and now go to the substance of the petition which
is before us.
Act No. 34 of
1994, amended Articles 21, 39, and 67 of the Constitution by cross referring
Article 21 to article 5, 39 and 67.
Article 5 entrenches the universal franchise subject to the other
provisions of the Constitution and other laws that may be enacted. To appreciate the impact of the amendments
both the former and the new relevant Articles must be quoted kin full.
Before the
amendment, Article 21(1) provided:
“21(1) Kila raia wa Jamhuri ya Muungano anayo haki ya
kushiriki katika shughuli
za utawala wan chi, 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.
The new Article
21(1) now reads (2005 edition):
“21(1) 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 kuchagua na kuchaguliwa,
au kuteua na kuteuliwa kushiriki katika shughuli za utawala
wa nchi 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 nanchi kwa hiari yao,
kwa kuzingatia utaratibu uliowekwa na sheria au kwa mujibu wa sheria”.
The underlined
words were introduced by the amendment through the 11th
Amendment. Article 39(1) which refers to
the qualifications of a presidential candidate and those of Article 67(1), of
the Constitution as amended articulate the necessity of being a member of a
political party as a qualification for presidential and parliamentary
candidates.
The petitioner
contends that these provisions violate Article 9(a) and (f), of the
Constitution. On the other hand the
Respondent contends that the amendments were valid, legally done, for a
specific public good and not in violation of any basic human rights. It is from these rival contentions that the
first issue was framed to wit:
“Whether
Article 39(1)(c), 39(2), 67(b) and 67(2)(e) are unconstitutional?
It may of course
sound odd to the ordinary mind to imagine that the provisions of a constitution
may be challenged for being unconstitutional.
The petition was filed under S. 4 of the Basic Rights and Duties
Enforcement Act (Cap 3) which enables persons aggrieved by the violations of
their basic rights under sections 12 to 29 of the Constitution to seek redress
from this Court. According to the
amended petition, the petitioner seeks redress under, among others, Articles
13(2), 20(4) and 21(1) and partly under Article 9(a) and (f). Since S. 4 of the Basic Rights and Duties
Enforcement Act does not cover Article 9 we too, shall not consider the
petitioner’s complaint under that Article, as it is outside the scope of our
mandate. Here we shall only confine
ourselves to examining the alleged violation of Articles 13(2) and 21 of the
Constitution.
The jurisdiction
of this Court to adjudicate on violations of such article is further derived
from Article 30(3) of the Constitution, which reads:
“30(3) Mtu yeyote anayedai kuwa sharti lolote katika
sehemu hii ya sura hii au
katika sheria yeyote inayohusu haki yake au wajibu kwake imevunjwa, linavunjwa
au inaelekea litavunjwa na mtu yeyote popote
katika Jamhuri ya Muungano, anaweza kufungua shauri katika Mahakama Kuu”.
The official
English version of that Article is:
30(3) Any person alleging 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.
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.
But before we
proceed, we feel impelled to touch on one thing which none of the parties has
raised. And this relates to the
procedure of instituting petitions under the Basic Rights and Duties
Enforcement Act (Cap 3). Section 5 of
that Act stipulates:
“5. An
application to the High Court in pursuance of section 4 shall be made by petition to be filed in the appropriate
registry of the High Court by originating
summons”.
In the present
case the petition was filed without an originating summons. This appears to offend the mandatory section
5 of the Act. Ordinarily, this would
have the effect of the petition being struck out as incompetent. But this is a matter that touches on
fundamental rights under the Constitution.
In THE JUDGE I/C HIGH COURT
ARUSHA, and ATTORNEY GENERAL Vs. N.I.N. MUNUO NG’UNI Civil Appeal No. 45 of
1998 (unreported) the Court of Appeal of Tanzania, adopted with approval the
following passage paraphrased by the trial Court:
“… that a Court should take liberal approach to rules
of practice, and procedure where basic rights and freedoms are involved so as
to give to the complainant a full measure of his rights. The rationale is that since the rights
guaranteed by the Constitution are effectively enforced, and that to decline to
examine kthe merits of a petition on the basis of a procedural technicality
would be an abrogation of that duty”.
In that case,
the Court was also sitting on appeal from a decision of the High Court sitting
under the Basic Rights and Duties Enforcement Act, just as we are. There of course, the issue was on how to
plead specific damages which was a matter of procedure. Here, the question is want of originating
summons which, we think, is also a matter of procedural technicality. On the basis of the above authority, we do
not think the lack of an originating summons should abrogate us from doing that
duty.
Mr. Rweyongeza
and Mr. Mpoki learned Counsel for the petitioner, have submitted that, while
Article 21(1) of the Constitution guarantees the right of any person to elect
or be elected or nominated to take part in matters pertaining to the government
of the country, that right is violated by Act 34 of 1994 amending Articles
21(1), 39 and 67 which require that such person can only so participate if he
is nominated by a political party for the posts of the president and/or member
f parliament. They submitted that the
said amendments are further violative of Article 20(4) which prohibits persons
from being compelled to join any association or organization. The learned Counsel proceed to argue that by
this provision, it means that only members of registered political parties may
be permitted to be elected president or members of parliament. These they conclude is unconstitutional.
Mr. Mwaimu,
learned Principal State Attorney submitted, that the said amendments were
legally promulgated by the Parliament in terms of Article 98(1) of the
Constitution. Then reverting to Article
21(1) the learned State Attorney first submitted on the reasons for the
prohibition of private candidacy. He
said it was one way of achieving representative democracy, and intended to
safeguard peace, order, security and tranquility. To support his argument on the
proportionality test, the learned Principal State Attorney quoted several
decisions from South Africa, to which we shall revert soon below.
In reply, Mr.
Rwenyeongeza and Mr. Mpoki, learned Counsel submitted that although parliament
has powers to amend Constitutional provisions, those powers are not limitless,
hence the proportionality test. Here,
the learned Counsel cited several decisions of this Court and the Court of
Appeal. They argued that representative democracy was not inconsistent with
that of private candidacy. They disagreed with the Respondent’s contentions
that political parties enabled the candidates to formulate and propagate their
philosophies, because that mechanism had no adequate safeguards and effective
controls against abuse by those in authority.
Although the
learned State Attorney addressed the Court generally on the constitutionality
of the impugned Articles, in this ruling we intend to examine and decide on each
of the issues as agreed by the parties.
The Respondent
contends that the amendments were constitutional because they were duly enacted
by the Parliament who have such powers under Article 98(1) of the
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
special edition of THE TANZANIA LAWYER
October, 2003 put it on p. 39:
“…
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 so in a manner that would alter the basic structure or essential features of the Constitution”.
The issue
therefore is whether the amendments to Articles 21(1) and Articles 39 and 67 of
the Constitution is Constitutional. We
have tried to trace above the history of representative democracy. We have shown that soon after independence
the two Constitutions 1961, and 1962 had no restriction on the qualifications
for elective posts of the president and Members of Parliament. We noted also
that this restriction to party members to be nominated for the said elective
posts first appeared in the 1965 Interim Constitution and carried over in the
1977 constitution, when the party was under one party system. But until the enactment of the Bill of Rights
in the 1984 Constitutional Amendments, there were no provisions similar to
Articles 20 and 21, hence the legitimacy of Articles 39 and 67 which remained
restrictive to party membership. We have
seen above what the two provisions provide.
To us the combined effect of Articles 20 and 21 is to expand the arena
of representative democracy. To
appreciate it one must compare Article 20(2) as it appeared immediately after
the insertion of the Bill of Rights and reflected in the 1985 version of the
Constitution and Article 20(4) as it appears in the 2005 edition of the
Constitution which reads:
“20(4) Itakuwa ni marufuku kwa mtu yeyote kulazimishwa
kujiunga na chama chochote
au shirika lolote au kwa chama chochote cha siasa kukataliwa kusajiliwa kwa sababu tu ya
itikadi au falsafa ya chama hicho”.
It appears to us
therefore that, while Articles 20 and 21 of the Constitution are intended to
expand the arena of democracy and the right to participate in the government of
the state, Articles 39(1)(c) and 67(1)(b) of the Constitution as amended seem
to erode and restrict the right to contest for the elective posts to members of
political parties only. We think that
those provisions cannot be reconciled.
In our
considered view the right to join or not to join political parties is as
fundamental as the right to religious belief which cannot be made a basis for
contesting for an elective political post.
And so we proceed to hold that the provisions of Articles 21(1),
39(1)(c) and 67(1)(b) are violative of Articles 20 and 21 of the
Constitution. But the contraventions
alone are not sufficient to declare the Articles, unconstitutional. This then takes us to the second issue which
is whether the impugned Articles meet the proportionality test?
To bring the
provisions within the proportionality test it must be shown that the Articles
are saved by Articles 30 and 31 of the Constitution, but Article 30(1) is in
our view, more pertinent. It provides:
30(1) Haki na uhuru wa binadamu ambavyo misingi
yake imeorodheshwa katika
katiba hii havitatumiwa na mtu mmoja kwa maana ambayo itasababisha kuingiliwa kati au kukatizwa
kwa haki na uhuru wa watu wengine
au maslahi ya umma”.
As we have seen
above, once the petitioner has shown that his fundamental rights have been
violated the burden shifts to the Respondent to prove that the impugned
provision is in the public interest. As
the Court of Appeal has put it in KUKUTIA
OLE PUMBUN (supra).
“A
law which seeks to limit or derogate from the basic right of the individual on grounds of public interest will be declared
un constitutional unless it satisfies
two requirements:
(a) that it is not arbitrary, and
(b) that the limitation imposed by law is no
more than is reasonably
necessary to achieve the legitimate objection”.
The requirement
to subject the impugned legislation to this test is not disputed by the
parties. It is also not in dispute that
the burden now is on the Respondent to justify the legislation.
Elaborating on
this aspect, the learned Counsel for the petitioner, submitted that to pass the
proportionality test it must be shown that the legislation was directed towards
a legitimate societal and community interest, and that the restriction kwas
necessary to achieve the said goal. They
submitted that the impugned Articles as amended do not pass the proportionality
test.
Mr. Mwaimu,
learned principal State Attorney paraphrased his argument by a long discourse
on the reasons why Parliament had to pass such legislation. To quote him:
“...
the amendments were done for a specific public good … The prohibition to individual contestants in general and local
governments elections is one way to
achieve representative democracy … it is a policy which intends to safeguard peace order security and
tranquility …”
The learned
Principal State Attorney also anchors his arguments on Article 3(1) of the
Constitution, and ends up by emphasizing the importance of a potential leader
to be weighed through a political party. This is where Mr. Mwaimu, brought in the South African cases of SOUTH
AFRICA Vs. MAKWANYANE [1995] (3) S.A. 391(cc) and S Vs. BHULWANA [1996] (1) S.A. 388 (cc).
Undaunted, Mr.
Rweyongeza and Mr. Mpoki, learned Counsel for the petitioner, submitted in
rebuttal that the proportionality test was not met. They rallied the support of the decision of
this Court in PETER NG’OMANGO Vs.
KIWANGA & ANOTHER [1993] TLR. 77 and the Court of Appeal decisions in DPP Vs. DAUDI PETE [1993] TLR.22, and MBUSHUU Vs. REPUBLIC [1995] TLR.
97. They even went on to quote the same
South African cases of MAKWANYANE
(supra) and BHULWANA (supra), to
support their arguments by stating that while widening the horizon of the
principle of proportionality test, such limitations would only be justified if
it is –
(i) reasonable,
(ii) justifiable in an open and democratic society
based on freedom and
equality and
(iii)
shall not negate the essential content
of the right in question.
They thus
submitted that the decision of Lugakingira, J. (as he then was) was in line not
to negate the essential content of the right for a person to contest as a
private candidate or through his chosen party.
We are not of
course, entitled to question the wisdom of the parliament for enacting the
Constitutional amendments in question but if we were to assume that the
Respondent was attempting to discharge his burden of proof, we are not
satisfied that kin this case, the Respondent has succeeded. The arguments may be attractive to the ear,
but they are not supported by any empirical evidence. There is no evidence at all to suggest that
the existence of the right of private candidate is inimical to the spirit of
representative democracy. In fact as we
have shown above there was no such restriction immediately after the country
became a Republic. There is no suggestion that the lack of the party affiliated
qualification had brought any havoc to the society by then.
We have also had
the advantage of reading the South African cases cited by Mr. Mwaimu. In S.
Vs. BHULWANE [1996] 1 South African Law Report, the Respondent was found in
possession of 856 9 gms of cannabis. He
was convicted on the statutory provision raising a presumption of guilt under
S. 21(1)(a) of The Drugs and Drugs Trafficking Act. The provision’s constitutionality was
challenged on the ground of infringing the fundamental right of presumption of
innocence. Then, S. 33(1) of the
Constitution of South Africa was considered and the Constitutional Court
through O’REGAN J., held at p. 395 of the Report:
“...
In sum therefore, the Court places the purposes, effects and importance of the infringing legislation on one side of
the scales and the nature and effect of the
infringement caused by the legislation on the other. The more substantial the inroad in to fundamental right, the more persuasive the
grounds of justification must be”.
S. Vs. MAKWANYANE AND ANOTHER (supra) was another criminal case in which S. 277(1)(a)(c) of the
Criminal Procedure Act 51 of 1977 sanctioning capital punishment was challenged
as being unconstitutional. CHASKASON P.
of the Constitutional Court made the following observation on kp. 403 GH that:
“… I need say no more in this judgment than that S.
11(2) of the Constitution must not be construed in isolation, but in its
context, which includes the history and background to the adoption of the
Constitution itself, and in particular, the provisions of Chapter 3 of which it
is part. It must also be construed in a
way which secures for individuals the full measue of its provisions”.
We have also had
the advantage of perusing the decision in SAGHIR
AHMED AND ANOTHER V. STAFF OF V.P. AIR 1954 SC 728. The Appellant there had challenged the
constitutionality of a legislation restricting the right to use a highway. We agree with Mr. Mwaimu that the facts there
were different; as there what was being challenged was a statute and not the
provisions of the constitution itself.
However, that decision is also authority that:
“There
is undoubtedly a presumption in favour of the Constitutionality of a legislation. But when the enactment on the face of it is
found to violate a fundamental
right guaranteed under Article 19(1)(g) of the Constitution, it must be held to be invalid unless
those who support the legislation can bring it with
the purview of the exception laid down in clause 6 of the Article”.
And that –
“The
question whether the restriction imposed by a particular legislation on the exercise of fundamental rights under
Article 15(1)(g) are reasonable or not
would depend on the nature of the trade and the conditions prevalent in it”.
We think that
these statements of Constitutional interpretation are of universal application
whether the impugned legislation is an Article of the Constitution itself or
another statute.
In DEENA @ DEEN DAYAL ETC Vs. UNION OF INDIA
AND OTHERS [1984] SCR. 1, the sentence of death was being challenged for
being unconstitutional. There the
Supreme Court of India held among others:
“In
cases arising under Article 21 of the Constitution, if it appears that a person is being deprived of his life or has
been deprived of his liberty, the burden
rests on the state to establish the constitutional validity of the impugned law”.
This principle
is equally applicable in a case where as in this case a person alleges that his
fundamental right to participate in the running of the government of his
country is being restricted by another provision of the Constitution.
What we gather
from the persuasive authorities cited by the learned Counsel can be put in a
nutshell as follows:
(i) Where a person alleges an infringement of his
fundamental right the burden shifts to
the state to justify the impugned law.
(ii) Whether or not the infringement or restriction
imposed is reasonable or not
would depend on the nature of the restriction/infringement.
(iii)
In determining whether the impugned
law/provision is reasonable or not the
Constitution must be construed in the light of its history and background, so as to ensure that the individual
realizes the full measure of his fundamental rights;
so that the essential contents of the rights are not negated.
We have
attempted above to show that historically, Articles 20 and 21 of the
Constitution were introduced to broaden the arena of representative democracy
and participation in public affairs. In
the scheme of the Constitution, this is one of the basic rights of the citizens
of Tanzania. We have also seen that
party qualification to contest for elective posts was unknown before the 1965
Interim Constitution and the entrenchment of the one party state. So it emerged and continued to dominate all
the subsequent Constitutions as a legacy of one party policy. So, it cannot be gain said that during the
one party state, the right to participate in being voted to power was
restricted to party members. With the
insertion of the Bill of Rights in 1985 and later multipartysim in 1992, party
membership qualification was hardly or of little relevance, except as a legacy
of the one party structure because not only party monopoly was abolished by
Article 3 of the Constitution but also it was expressly forbidden under Article
20(4) to force any person to join any association or party. It is in the light of these developments that
we take the firm position that Articles 20(4) and 21(1) entrench fundamental
rights, and Articles 39(1)(c) and 67(1)(b) must be construed so as to achieve
the full measure of those fundamental rights.
On a full and deep consideration, we are of the settled view that
Article 39(1)(c) and 67(1)(b) make a substantial inroad into those rights
guaranteed under Articles 20(4) and 21(1) of the Constitution. We are also satisfied that the Respondent has
failed to discharge his burden to justify the said restriction, because, first,
it is historical, secondly they have not produced any evidence to substantiate
their fears on private candidates. It is
true that Article 3 introduces a multiparty political system but we do not
think that this is inconsistent with private candidacy. Private candidacy could well exist alongside
multipartysim as was indeed the case before the 1965 Interim Constitution.
We have also
carefully weighed the balance of the scale of the purposes, effect and
importance of the impugned Articles, against the nature and effect of the
infringement caused by the said Articles, and we are satisfied that the
infringement is a substantial and unjustified inroad into the fundamental
rights and we think such trends must be nipped in the bud, if our constitution
has to remain a respectable fountain of basic rights. As Mwalimu Julius K. Nyerere, put it in his
book OUR LEADERSHIP AND THE DESTINY OF
TANZANIA, HARARE AFRICAN PUBLISHING GROUP 1995, p. 9, quoted by Prof. Issa
Shivji in his article CONSTITUTIONAL
LIMITS ON PARLIAMETARY POWERS (supra).
“This
is very dangerous. Where can we
stop? If one section of the Bill of Rights can be amended, what is to
stop the whole Bill of Rights being made meaningless
by qualifications of and amendments, to all its provisions?
We have prefaced
our ruling by stating that one of the principles of Constitutional
interpretation, is that the Constitution must be construed as a living
organism. With whatever little knowledge
we might have, we know as a basic principle of nature that living organisms do
grow in size with time, but, unless it is dead, it does not grow smaller. By analogy our Constitutional provisions on
representative democracy, having emerged from the cocoon of a one party system
should be interpreted so as expand the arena of representative democracy and
not shrink back to that era as demonstrated in the attempt by Act 34 of
1994. This is even more so now in view
of the fragile opposition political parties existing along with the ruling CCM
party as demonstrated in the just ended general elections.
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(10)(b) are unconstitutional.
We shall dispose
of the third issue briefly, although we do not really consider it necessary to
do so in view of our findings on the first two issues. The issue is whether the impugned Articles
also contravene the International Covenants to which Tanzania is a party?
Mr. Rweyongeza
and Mpoki learned Counsel, have submitted that these Articles contravene the
Universal Declaration of Human Rights, and the African Charter on Human &
Peoples Rights. They cited Articles
20(1) and (2) and 21(1) of the Declaration and Articles 10(2)(1) and 29 of the
African Charter on Human Rights to illustrate their arguments, and DPP Vs. DAUDI PETE (supra) to show the
effect of these conventions in the interpretation of our Constitution.
On the other
hand, Mr. Mwaimu the learned Principal State Attorney does not seriously
contest the existence and effect of the International Covenants but said these
should be construed within their own limitations. He cited Article 29(2) of the Universal
Declaration of Human Rights to illustrate his point. He submitted that in the light of those
limitations the impugned Articles of the Constitution were made kin order to
maintain morality, public order and general welfare of the people. So, the learned state counsel submitted, this
Court should find that even as against these international conventions, those
amendments were just and reasonable. He
therefore prayed that the petition be dismissed with costs.
As the Court of Appeal
of Tanzania observed in DAUDI PETE,
we have no doubt that international conventions must be taken into account in
interpreting, not only our constitution but also other laws, because Tanzania
does not exist in isolation. It is part
of a comity of nations. In fact, the
whole of the Bill of Rights was adopted from those promulgated in the Universal
Declaration of Human Rights. To come
nearer to the case at hand, Articles 20 and 21 (as originally drafted before
the Amendments) of the Constitution are replica of Articles 20(1) and (2) and
21 of the Declaration. The Covenant of
Civil and Political Rights which followed the declaration and ratified by
Tanzania in June 1976 provides in its Article 25 thus:
“Every
citizen shall have the right and the opportunity without any of the distinctions in article 2 and without
unreasonable restriction:-
(a) To take part in the conduct of public affairs
directly or through freely chosen
representatives
(b)
To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall
be held by secret ballot guaranteeing the
free expression of the will of the electorates.
Article 2 of the
convention, enshrines the right of an individual without any distinction of any
kind such as political or other opinion.
Article 29(2) of
the Universal Declaration of Human Rights, relied upon by Mr. Mwaimu has the
same effect as Article 30(1) of the Constitution of the United Republic of
Tanzania. As seen above, case law has
subjected any justification for restricting fundamental rights under that
Article 30(1) to the proportionality test.
We have, we hope, amply demonstrated above that the amendments
introduced by Act 34 of 1994 into Articles 21(1), 37(1)(c) and 69(1)(b) of the
Constitution, do not meet that test as they seek to make a substantial inroad
into a fundamental right of the citizens to participate in the affairs of their
government. We are of the unshakeable
view that political party membership as a qualification to being nominated for
an elective post is too unnecessary a restriction, for the purposes of
achieving and maintaining morality, public order and general welfare of the
people. There are, certainly alternative
and better ways of achieving that goal.
And so, in our opinion, the impugned provisions are not saved even under
Article 29(2) of the Universal Declaration of Human Rights. In the event, we agree with the learned
Counsel for the petitioner, that amendments to Articles 21(1), 39(1)(c) and
67(1)(b) of the constitution also contravene the International
Conventions. So we answer the third
issue also in the affirmative.
For all the
above reasons we now come to the inevitable conclusion that this petition must
succeed. We are of the settled view that
the amendments to Articles 21(1) Article 39(1)c) and Article 67(1)(b)
introduced by Act No. 34 of 1994 or popularly known as the 11th
Amendment are unnecessary and unreasonable restrictions to the fundamental
right of the citizens of Tanzania to run for the relevant elective posts either
as party members or as private candidates.
We thus proceed to declare the alleged amendments unconstitutional and
contrary to the International Covenants to which Tanzania is a party.
In REV. MTIKILA Vs. ATTORNEY GENERAL
[1995] TLR. 31, at p. 68 this Court through Lugakingira, J. (as he then)
declared and directed that:
“… it
shall be lawful for independent candidates along with candidates sponsored by political parties to contest,
presidential, parliament and local council
elections”.
We shall also
declare kin the present case that in principle it shall be lawful for private
candidates to contest for the posts of president and Member of Parliament along
with candidates nominated by political parties.
However unlike 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 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
11 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. As this is a public interest litigation the
parties shall bear their own costs.
It is so ordered.
A.R.
MANENO
PRINCIPAL
JUDGE
S.A.
MASSATI
JUDGE
T.B.
MIHAYO
JUDGE
05/05/2006
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