Constitutional Court vs. constitutional cases. By Johnson Yesaya. LL.B

 

Scenario 

Mr. Agha Kujikosha, the national of Tanzania who is 34 of his age, was charged with murder before the High Court of Tanzania, whereof, he, was convicted and sentenced to death by hanging. Henceforth, being aggrieved with the trial court’s decision, he appealed to the Court of Appeal of Tanzania, where forth, the appellate court restored the conviction and sentence of the trial court inter alia. Being again aggrieved with the Appellate Court’s decision, Mr. Agha filed an application for the review in same court of appeal. 

The said application was entertained and then found of non-meritorious in its entirety. Mr. Agha was also aggrieved with the passed decision on his application for review, he then wants to file the petition before the Constitutional Court (the High Court of Tanzania) challenging the decision of the appellate court as it has closed the room for him to access to justice for the further appeal as the review was the last remedy for him to access justice. 

In his petition to the Constitutional Court he claims that Articles 30(3) and 26(1) of the Constitution of the United Republic of Tanzania offer to him an avenue to challenge the appellate court’s decision as he claims that his fundamental and basic rights provided under Article 13(1), (4), and13 (6)(a) of same Constitution were infringed. He further reiterates that, during the hearing of his appeal in the court of appeal, he was discriminated, not given enough time to defend his appeal, and also there was no a fair due process in general, hence the herein petition.  

Raised issues:

1.Whether the Constitutional Court (the High Court of Tanzania) has the competent jurisdiction to adjudicate the filed petition 

2.Whether the petition was tenable

3.Whether the petitioner had another remedy to access to his justice apart from filing the constitutional petition.     

Answers

Whether the Constitutional Court (the High Court of Tanzania) has the competent jurisdiction to adjudicate the filed petition.

The special constitutional court.

The only known constitutional court is the one established under Article 125 of The Constitution of United Republic of Tanzania . As per Article 126, the jurisdiction of special constitutional court is to hear and give  a conciliatory decision over a matter referred to it concerning the interpretation of Constitution where such interpretation or its application is in dispute between the Government of the United  Republic and the Revolutionary Government of Zanzibar.

The private parties lacks locus stand to sue each other before special constitutional court, the only recognized parties entitled rights to sue before this court are Government of the United  Republic and the Revolutionary Government of Zanzibar. The subject matter of the suits before special constitutional court must be on interpretation or application of articles of constitution, the court cannot exceed it’s Jurisdiction to entertain matters brought to it by private individuals or matters not connected to interpretation and application of articles of constitution.

Constitutional cases.

The constitutional cases are divided into two, the one which fall within Jurisdiction of special constitutional court as stated above and two, the normal cases before High Court seeking orders of the court on infringement of basic constitutional rights stated under Article 12-29 of the Constitution as provided under Article 30(3) of the Constitution and section 4 of The Basic Rights and Duties Enforcement Act . 

Article 30 (3) provides that, “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.”

Section 4 of  BRADEA provides, “Where any person alleges that any of the provisions of Articles 12 to 29 of the Constitution has been, is being or is likely to be contravened in relation to him, he may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the High Court for redress.”

Private persons are allowed by both above provisions to institute proceedings before High Court in case their basic rights or duties are infringed or likely to be infringed. They are allowed to institute proceedings before normal High Court Registry and not Special Constitutional Court.

The best example to use is the recent case of Freeman Aikaeli Mbowe v. The Director of Public Prosecution and Inspector General of Police, Misc. Civil Cause No 21 of 2021. Petitioner was challenging unlawful arrest and denial of his basic rights like food and treatment. This suit was before normal High Court Registry and not Special Constitutional Court.

To answer the question above, the constitutional court has no jurisdiction whatsoever to entertain matters from private individuals and matters not involving interpretation and application of Articles of constitution. The persons whose basic constitutional rights has been violated, are entitled rights to seek redress before normal High Court Registry and not Special Constitutional Court.

Whether the petition was tenable.

Before instituting a civil litigation, one must make sure that, there is tenable cause of action, locus stand, competent platform to determine the suit and all rules regulating civil litigations are adhered. Basing on the above scenario, the petition filed was not tenable and bad in law. The hierarchy of our courts must be followed as it is, it is impossible to take back a matter to High Court after being taken to court of appeals. The court of appeal has no original Jurisdiction but its appellate Jurisdiction is unlimited, court of appeals can hear and correct any legal wrong from any case of any nature. Petitioner had an avenue to complain about infringement of his rights during hearing at court of appeal through review. He was required to state in his application that his basic constitutional rights were infringed during hearing and court of appeal would be capable to reversed or re-hear a matter again and give him all rights he claimed.

Whether the petitioner had another remedy to access to his justice apart from filing the constitutional petition.

Rule 66(7) of The Court of Appeal Rules  provides that, “Where an application for review of any judgment and order has been made and disposed of, a decision made by the court on the review shall be final and no further application for review shall be entertained in the same matter.”

Basing on the above rule, the petitioner has no any room for justice, he mis-used the review, he had to include all his claims in review application.

Necessary documents.

Application for redress as per section 4 of BRADEA

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 supported by affidavit. Section 5 of BRADEA.

Application for judicial review at C.A.T

Notice of Motion supported by affidavit. See Rule 66 and 67 of Court of appeals rules.