Rev. Christopher Mtikila v. The Attorney General, Civil Case No. 5 of 1993 (separation of powers)

Rev. Christopher Mtikila v. The Attorney General

High Court (Lukakingira J.): September 22, 1994

Civil Case No. 5 of 1993

Constitutional Law-separation of powers- courts jurisdiction-whether courts may interfere in executive and legislative action or inaction to protect and promote rights of individual citizen-whether may formulate government policy nor compel legislation 

The petitioner, Rev. Mtikila filed a petition challenging the validity and protection of the 1977 Constitution. The respondent raised preliminary objections to the petition, and hence this ruling. The objections were based on three broad grounds, firstly, that the petitioner had no locus standi in his claims.  The second ground was that the claims did not disclose a cause of action, and lastly, that the court had no jurisdiction in the matter. 

Specifically, the petitioner claimed in paragraphs 4 and 19© that the 1977 Constitution and its subsequent amendments were passed by an incompetent body and prayed for a declaration that the said Constitution is void. 

He also claimed in paragraph 5 that contrary to Article 21(2) of the Constitution, he had been denied the right to participate in making decisions on matters affecting the nation, to wit, in making a new Constitution through a national conference or a broad-based constitutional commission and a referendum.  He therefore prayed in paragraph 19(a) for an order directing the Government to set that process in motion. 

The petitioner further complained in paragraph 6 that the government continued to behave as if Tanzania was still a one party democracy and prayed in paragraph 19(d) for a declaration that there was need for the formation of a transitional government and in paragraph 19(e) for the disestablishment of the present government.

In paragraph 7 and 19(b) the petitioner also demanded a referendum to decide on the desirability and the form of onion between Tanganyika and Zanzibar.

Without asking for a specific prayer, the petitioner in paragraph 8 also claimed that the Government had been adding unconstitutionally to the list of Union matters contained in the Acts of Union. 

He further claimed in paragraphs 17 and 18 that the Constitution made provision for a separate government for Zanzibar but did not make similar provision for Tanganyika.  He also lamented that Zanzibar’s elected Members of Parliament participated in debating and passing measures that touched on and concerned Tanganyika only and that this was unconstitutional and an unreasonable burden on the people of Tanganyika, contrary to the democratic principles of election and representation. The attendant prayers were laid out in paragraphs 19(k) and (e).

Held:

1.  Courts could only interfere in executive or legislative action or inaction to protect and promote the rights of the individual citizen. Beyond that the courts will not go.  They could not formulate government policy nor would they compel legislation.  They could only make law either through the doctrine of judicial precedent or in the exercise of the power to make rules of court.

Paragraphs 4,5,6,7,8,17, and 19 and attendant reliefs in paragraphs 19(c), (a), (d) and (e), and 19(b), (c), (o) and 19(1) respectively struck out as misconceived.

Mbezi for the applicant

Kipenka Msemembo Mussa for the respondent

Legislation considered:

Acts of Union (cap 557)

Constitution 1977 Article 21(2)

Cases cited:

1. D.P.P. v. Daudi Pete Criminal Appeal No. 28 of 1990 (unreported)

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