CHRISTOPHER MTIKILA v ATTORNEY GENERAL 1995 TLR 31 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

CIVIL CASE NO. 5 OF 1993 B

October 24, 1994

Flynote

Constitutional Law - Supremacy of Parliament - Power of Parliament to amend the

Constitution - Whether limitless C

Constitutional Law - Fundamental Rights enshrined in the Constitution - Whether

Parliament can amend constitutional Provisions safeguarding fundamental rights

Litigation - Locus standi - Sufficient personal interest in the subject of litigation -

Extent of interest in private law and public law litigation distinguished D

Locus Standi - Constitutional Rights - Locus Standi in litigation for basic

constitutional rights - No particular right of Petitioner is infringed - Whether

Petitioner has locus standi - Article 30(3) of the Constitution. E

Litigation - Public Interest Litigation - Whether sufficient interest is necessary in

public interest litigation - Article 26(2) of the Constitution

Civil Practice and Procedure - Stay of proceedings - Suit brought on an issue already

F pending before another court - Whether subsequent suit may proceed - Section 8

of the Civil Procedure Code, 1966.

Statutory interpretation - Interpretation of Constitutional provisions - Constitutional

Provision being in conflict with another provision of the Constitution - Use of the

harmonisation principle of statutory interpretation G

Constitution - Constitution of the United Republic of Tanzania - Union Matters

under the Constitution - Appointment of persons from Zanzibar to offices of nonunion

matters on the Mainland - Whether Constitutional

-Headnote

The petitioner was a human rights campaigner and political activist. In his petition he

invited the High Court to consider whether certain amendments to the Constitution

were validly made as they appear to infringe the right to participation in national

public affairs and freedom of association, both of which are guaranteed by the

Constitution. The petitioner also invited the Court to declare a number of statutory

provi- H

1995 TLR p32

A sions unconstitutional for infringing rights and freedoms guaranteed under the

Constitution. These were some provisions of the Political Parties Act 1992 which, the

petitioner claimed, infringed freedom of association; some provisions of the election

laws which made it impossible for independent candidates to contest in B elections;

certain provisions of the Newspapers Act 1976 which he claimed were arbitrary and

liable to abuse, and an infringement to freedom of expression; and certain provisions

of the Police Force Ordinance, Cap 322, and the Political Parties Act 1992 which, he

claimed, infringed the constitutional right to peaceful assembly and public expression

by requiring a permit to be obtained before one C can hold a public meeting or a

rally. The petitioner also sought a declaration whether or not the appointment of

people from Zanzibar to offices in Mainland Tanzania dealing with non-union

matters was constitutional. Besides opposing the petition on substantive grounds,

preliminary objections were raised for the Respondent regarding whether the

petitioner had locus standi, whether he had a cause of action, and whether the issues

he raised were justiciable.

D Held:

(i) The orthodox common law position regarding locus standi no longer

holds good in the context of constitutional litigation in that the notion of sufficient

personal interest over and above the interest of the general public has more to do

with private law rather than public law; in matters of public interest litigation the

Court will not deny standing to a genuine and bona fide litigant even where he has no

personal interest in the matter; E

(ii) In the circumstances of Tanzania, if a public spirited individual springs

up in search of the Court's intervention against legislation or actions that pervert the

Constitution, the Court, as guardian and trustee of the Constitution, must grant him

standing; F

(iii) The principles of public interest litigation are expressed in the

Constitution of Tanzania by vesting in every person the capacity of an individual by

virtue of articles 12 to 24 of the Constitution, and the capacity of a member of the

community by virtue of articles 25 to 28 of the Constitution, thereby equipping the

individual with double standing to sue; G

(iv) The petitioner in this case has locus standi by virtue of article 30(3) of

the Constitution which entitles a person who alleges that a basic right is being or is

likely to be contravened in relation to him to institute proceedings for relief in the

High Court, as well as by virtue of article 26(2) of the Constitution which entitles

every person to institute H proceedings for the protection of the Constitution and of

legality;

(v) Article 26(2) of the Constitution is an independent and additional

source of standing according to which personal interest is not necessary in order to

institute proceedings; the article is tailored for the community and it enacts into the

Constitution of Tanzania the doctrine of public interest litigation; I

1995 TLR p33

(vi) In this petition the dispute is over the validity of various laws and that

A suffices to constitute a cause of action; it is not always necessary for powers under

those laws to be exercised first so as to give rise to a cause of action;

(vii) Fundamental rights are not gifts from the state but they inhere in a

person by virtue of birth, and they are prior to the state and the law; the enactment of

those rights in the Constitution is mere evidence of their B recognition and the

intention that they should be enforceable in a court of law, and an intention that

those rights should not be arbitrarily restricted by the state;

(viii) Parliament is given very wide powers to amend constitutional

provisions, including those providing for basic human rights, but those powers of

Parliament can only be exercised subject to the limits imposed by articles 30(2) and 31

of the Constitution; what is beyond the powers of Parliament C to amend is only the

ethic of human rights but not the letter by which those rights are expressed;

(ix) The constitutional amendments which brought article 20(2) and (3) of

the D Constitution laying conditions for registration of political parties, and those in

article 39 of the Constitution relating to qualifications to contest in presidential,

parliamentary and local government elections, were all validly enacted; the

amendments do not abrogate, beyond the limits set by article 30(2) of the

Constitution, freedom of association and the right to participate in national public

affairs which are guaranteed under the Constitution; E

(x) As the issue of the constitutionality of certain provisions of the Political

Parties Act 1992 is also substantially an issue in an appeal already pending before the

Court of Appeal, in terms of s 8 of the Civil Procedure Code 1966, decision on that

issue is stayed until the outcome of the said appeal; F

(xi) The constitutionality of a statutory provision is not found in what

could happen in its operation but in what it actually provides for; the mere possibility

of a statutory provision being abused in actual operation will not make it invalid;

(xii) Section 40 of the Police Force Ordinance, Cap 322, and s 11(1) of the G

Political Parties Act 1992, hi-jack the right to peaceful assembly and procession

guaranteed under the constitution and place it under the personal disposition and

absolute discretion of the District Commissioner without adequate or any safeguard

against arbitrary exercise of that discretion; they infringe the right to freedom of

peaceful assembly and procession, and are therefore unconstitutional; H

(xiii) Section 41 of the Police Force Ordinance does not take away the right

to hold assemblies or processions but only empowers the Police and the magistracy to

step in for preserving peace and order whenever the holding or continuance of an

assembly or procession is likely to cause a breach of the peace; it seeks to ensure

public safety and public order, and is therefore a valid provision saved by article

30(2)(b) of the Constitution; I

1995 TLR p34

A (xiv) Sections 42 and 43 of the Police Force Ordinance, which define an

unlawful assembly and punish it, are constituitionally valid provisions which seek to

ensure public safety and order, and to ensure that the rights and freedoms of others,

and the public interest, are not prejudiced by the misuse of an individual rights and

freedom;

B (xv) As article 21(1) of the Constituion entitles every citizen to participate

in the government of the country, either directly or through freely elected

representatives, it is illogical for that Constitiution to provide, as it does in articles

20(4) and 39, 67 and 77 as amended, that no person shall be compelled to belong to a

political party and in the same breath to provide that no person shall run for office

except through a political party; C

(xvi) The right of every citizen to participate in government under article

21(1) of the Constitution is to be exercised according to a procedure set by or under a

law; while participation through a political party is a procedure, the requirement that

participation shall be through a political party only is not a procedural matter but a

substantive condition taking away the right to participate for citizens who do not

belong to political parties; D

(xvii) In interpreting the Constituion when a constitutional provision

enacting a fundamental right appears to conflict with another constitutional

provision, the Court is enjoined to incline to the realisation of the fundamental rights

and may disregard the other provision if its application would result in E injustice; it

is the fundamental rights, and not the restrictions on them which are fundamental,

and it is the fundamental rights which the Court is enjoined to guard jealously, not

the restrictions. F

(xviiI) The amendments made in articles 39, 67 and 77 of the Constituion,

restricting the right to contest in elections to political party candidates only, are

capable of being abused to confine the right of governing to a few and to render

illusory the emergence of a truly democratic society; not withstanding those

restrictions, it shall be lawful for private candidates to contest elections along with

political party candidates; G

(ix) Breach of the Constitution is such a grave and serious matter that

cannot be established by mere inference but by proof beyond reasonable doubt; in

this case it has not been proved that the appointment of persons from Zanzibar to

offices in non-union departments in Tanzania Mainland is in breach of the

Constitution of the United Republic. H

Case Infomation

Orders accordingly

Cases referred to:

(1) Thomas and Others v. Olufoseye [1986] L.R.C. (Const) 639 I

1995 TLR p35

(2) Guriet v. Union of Post Office Workers [1978] AC 435 A

(3) IRC v. National Federation of Self-Employed and Small Businesses Ltd [1981] 2

All ER 93

(4) R v. Metropolitan Police Commissioner, ex parte Blackburn [1968] 2 QB 118

(5) Blackburn v. Attorney General [1971] 2 All ER 1380

(6) Thorson v. Attorney General of Canada [1975] 1 SCR 138 B

(7) Nova Scotia Board of Censors v. McNeil [1976] 2 SRC 265

(8) Minister of Justice v. Borowski [1981] 2 SCR 375

(9) Olawayin v. Attorney General of Northern Nigeria [1961] All NLR 269.

(10) Adesanya v. President of Nigeria & Another [1981] 1 All NLR 1 C

(11) Chief Isagba v, Alege [1981] 2 NCLR 424

(12) Attorney General of Bendel State v. Attorney General of Nigeria, [1982] 3

NCLRI 88

(13) Adediran v. Interland Transport Ltd [1991] 9 NWLR 155

(14) Benazir Bhutto v. Federation of Pakistan, PLD 1988 SC 46

(15) Director of Public Prosecutions v. Daudi Pete [1993] TLR 22 D

(16) Peoples Union for Democratic Rights v. Minister of Home Affairs, AIR 1985

Delhi 268

(17) Prahalad Jena v. State, AIR 1950 Orissa 157

(18) Muhammad Nawaz Sharif v. President of Pakistan, PLD 1993 DC 473

(19) Golaknath v. State of Punjab [1967] 2 SCR 762

(20) Kesavananda v. State of Kerala [1973] Supp. SCR 1 E

(21) Raj Spinning Mills v. A.G. King Ltd [1954] A. Punj.113

(22) Hariram v. Hazi Mohamed [1954] Allahabad 141

(23) Javda Karson v. Harman Singh Bhogal [1953] 20 EACA 74

(24) Jinnat Bibi v. Howeah Jute Mills Co. Ltd., AIR 1932 Cal.751

(25) Collector of Customs (Madras) v. N.S. Chetty, AIR 1962 S.C. 316 F

(26) Kukutia Ole Pumbun v. Attorney General [1993] TLR 159 (CA)

(27) Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd, AIR 1983 SC 239

(28) C.R. Ramson v. Llyed Barker and the Attorney General [1983] 9 CLB 1211 G

(29) Attorney General of Alberta v. Attorney General of Canada [1947] AC 503

(30) C. Mtikila and Others v. Republic, High Court at Dodoma, Criminal Appeal

No.90 of 1992 (unreported)

(31) Wahid Munwar Khan v. State, AIR 1956 Hyd. 22

(32) Minister of Home Affairs v. Hickke and Others [1985] LRC (Const) 755 H

(33) Attorney General v. W.K. Butambala [1993] TLR 46 (CA)

(34) Attorney General of Gambia v. Jobe [1985] LRC (const)556

(35) British Coal Corporation v. The King [1935] AC 500

(36) James v. Australia (Commonwealth) and New South Wales (State) [1936] AC

578

(37) Sturat v. Crowninshield [1819] 4 Law Ed. 529 I

1995 TLR p36

LUGAKINGIRA J

A (38) Haji v. Nungu and Another [1987] LRC (Const) 224.

D. Mbezi and R. Rweyongeza, for the petitioner

K.M. Mussa, for the respondent

[zJDz]Judgment

B Lugakingira, J.:

This was an unusual petition. In its content and demands it constitutes several

petitions in one which range from challenges to the validity of diverse laws to the

protection of the Constitution and legality. The petitioner, the Rev Christopher

Mtikila, is a human rights campainer-cum-political activist and was represented by C

learned counsel Mr Dominic Mbezi who was assisted by Mr Richard Rweyongeza.

The respondent Attorney General was represented by Mr Kipenka Msemembo Mussa,

a Senior State Attorney. I wish to commend them all for the industry and brilliance

that went into the preparation and presentation of arguments. D

The petition originally raised very diverse issues, many of them rather political in

flavour and substance, and this prompted Mr Mussa to raise a litany of preliminary

objections which the Court resolved in the early stages of the proceeding. The E

objections were grounded in questions of the petitioner's locus standi cause of action

and justiciability of some of the issues. At the end of the day a number of matters

were struck out and issues were then framed for the survivors. In view of the

character of the petition which had to be amended several times it is better to

paraphrase these issues rather than merely list them. F

The first issue is a general one and is tied up with the second and fifth issues. It seeks

to establish generally whether the fundamental rights guaranteed in Part III, Chapter

One of the Constitution of the United Republic, 1977 are immutable. The G inquiry

is prompted by a set of amendments to the Constitution vide the Eighth

Constitutional Amendment Act, 1992 (No 4). The Act amends arts 39, 67 and 77 in a

manner which appears to infringe the right of participation in national public affairs

which is guaranteed by art 21(1); it also amends art 20 in a manner which H appears

to infringe the freedom of association which is guaranteed in sub-art (1) thereof. To

put it differently, the problem posed in the first issue is whether the amendments to

the Constitution were validly made and, if not, whether they can be declared void

pursuant to the provisions of art 64(5).

The second issue turns on the provisions of ss 8, 9, 10 and 15 of the Political Parties

Act, 1992 (No 5) which was enacted pursuant to I

1995 TLR p37

LUGAKINGIRA J

the amendment to art 20. These provisions are alleged to inhibit the formation of A

political parties and therefore to infringe the freedom of association. I am called upon

to declare them unconstitutional and void. The fifth issue arises from the amendment

to arts 39, 67 and 77 as well as s 39 of the Local Authorities (Elections) Act, 1979.

These amendments renders it impossible for independent candidates to contest

presidential, parliamentary or local council elections. I am again called upon to

remedy the situation. B

In the third issue the petition takes on ss 5(2), 13, 25 and 37--47 of the Newspapers

Act, 1976 (No 3). Section 5(2) empowers the Minister responsible for matters relating

to newspapers to exclude any newspaper from the operation of C any of the

provisions relating to the registration of newspapers. Section 13 empowers the

Minister to require any publisher of a newspaper to execute and register a bond in the

office of the Registrar of Newspapers. Section 25 empowers D the Minister to order

cessation of publication of any newspaper. Sections 37 - 47 are concerned with

defamation and the punishment for libel. Finally, the petition takes on para 12(1) of

the Government Notice No 166 of 1977 which empowers the Registrar to refuse

registration of a newspaper. It is contended that all these provisions are arbitrary and

liable to abuse and constitute as infringement to the freedom of expression which is

guaranteed under art 18(1). E

The fourth issue turns on the freedom of peaceful assembly and public expression and

questions the constitutionality of ss 40, 41, 42 and 43 of the Police Force Ordinance,

Cap. 322 as well as s 11(1) and (2) of the Political Parties Act. These F provisions

make it necessary for permits to be obtained in order to hold meetings or organise

processions and also provide for police duties in relation thereto. In the sixth and final

issue a declaration is sought on the constitutionality of the appointment of Zanzibaris

to non-Union posts on the Mainland. G

In my ruling in the preliminary objections I reserved for consideration at this stage

the questions of local standi, cause of action and justiciability and I will proceed to do

so before considering the matters set out above.

Arguing the question of locus standi, no doubt with a mind to the common law H

orthodox position, Mr Mussa submitted that the petitioner had to show a sufficient

interest in the outcome. He considered this to be implied in art 30(3) of the

Constitution. In his view the petitioner had to demonstrate a greater personal interest

than that of the general public, and cited the Nigerian case of Thomas & Ors v

Olufoseye (1) in support of his argument. I

1995 TLR p38

LUGAKINGIRA J

A In that case it was held by the Court of Appeal that under s 6(6)(b) of the 1979

Nigerian Constitution it was necessary for the appellants to establish a sufficient

interest in maintaining the action and this should be a personal interest over and

above that of the general public. Adomola, JCA said at p 650:

B 'It is also the law as laid down in the (Adesanya) case that, to entitle a person

to invoke judicial power, he must show that either his personal interest will

immediately be or has been adversely affected by the action or that he has sustained

or is in immediate danger of sustaining an injury to himself and which interest or

injury is over and above that of the general public.' C

Basing on this, Mr Mussa went on to assert that the crucial factor in the petition was

the petitioner himself and not the contents of the petition. Furthermore, he

contended that art 26(2) of the Constitution did not in itself confer locus standi and

appeared to read the provision as if it were not independent in itself. D

In response Mr Mbezi argued that standing was certainly conferred on the petitioner

by art 26(2) and that personal interest (or injury) did not have to be disclosed in that

context. He maintained that the alleged illegality of the laws was E sufficient to

justify the petition under that provision. Mr Mbezi further stated that the petitioner

acquired locus standi under art 30(3) as well and referred to the dispersal of his

meeting under the provisions of the Police Force Ordinance, the refusal to register his

party under the provisions of the Political Parties Act and the F banning of Michapo

and Cheka newspapers (his alleged mouthpieces) as sufficiently demonstrating the

petitioner's interest within the contemplation of art 30(3). Mr Mbezi further argued

that in view of the provisions of art 64(5) the Court could be moved into action by

any petitioner.

G I have given due consideration to the contending arguments and feel called upon

to deal with the subject at some length. The status of a litigant in administrative law is

a crucial factor and it has assumed an added dimension in constitutional law in the

wake of written constitutions. In English common law the litigant's locus standi was

the handmaid of judicial review of administrative actions. H Whenever a private

individual challenged the decision of an administrative body the question always

arose whether that individual had sufficient interest in the decision to justify the

court's intervention. Hence, it is stated in Wade and Phillips, Constitutional Law

(1965: 672): I

1995 TLR p39

LUGAKINGIRA J

'In administrative law it is necessary for a complainant to have a peculiar

grievance which is A not suffered in common with the rest of the public.'

The turning point in England came with the procedural reforms in judicial review,

vide s 31 of the Supreme Court Act, 1983, which was to lead in the course of the B

1980 to the recognition of the existence of public law as a distinct sphere from private

law. In other parts of the Commonwealth, notably India and Canada, a similar but

imperseptible development came to manifest itself in the doctrine of public interest

litigation. Traditionally, common law confines standing to litigate in C protection of

public rights to the Attorney general and this was reaffirmed by the House of Lords in

Guriet v Union of Post Office Workers (2), and the Attorney General's discretion in

such cases may be exercised at the instance of an individual. D

But before even the enactment of the Supreme Court Act a liberal view of standing

was already taking shape and a generous approach to the issue was already considered

desirable. This is illustrated by the words of Lord Diplock in IRC v National

Federation of Self-Employed and Small Businesses Ltd (3) at p 107: E

'It would, in my view, be a grave lacuna in our system of public law if a

pressure group, like the federation or even a single spirited taxpayer, were prevented

by out-dated technical rules of locus standi from bringing the matter to the attention

of the a court to vindicate the rule of law and get the unlawful conduct stopped.' F

Yet more contemporary developments indicate that in England judges are beginning

to acknowledge the possible appearance of apparent 'busy-bodies' where public

interest litigation is concerned. The late Raymond Blackburn, a G lawyer and former

Member of Parliament, litigated several public interest questions in which he

evidently had no greater interest than the other members of the public. In R v

Metropolitan Police Commissioner, ex parte Blackburn, (4), he challenged police

policy in not enforcing the gaming or obscenity laws, and in Blackburn v Attorney

General (5), he challenged Government policy in joining the European Community.

The developments in Canada have been no less breathtaking and we there find more

generous standing rules applied than elsewhere in the older Commonwealth. This has

been largely facilitated by the existence of a written constitution and the

incorporation of a charter of basic rights. The taxpayer is the central figure in the

Canadian I

1995 TLR p40

LUGAKINGIRA J

A approach. In Thorson v AG of Canada, (6), a taxpayer was allowed by a majority

to challenge the constitutionality of the Official Languages Act.

Laskin, J, speaking for the majority, contemplated '... whether a question of

constitutionality should be immunized from judicial review by denying standing to

anyone to challenge the impugned statute.' It was observed that standing in B

constitutional cases was a matter for the exercise of judicial discretion. In the case of

Nova Scotia Board of Censors v McNeil, (7), the Supreme Court again granted

standing to a taxpayer to challenge the validity of a provincial Act regulating film C

and theatre shows. This position is also illustrated in Minister of Justice v Borowski

(8) where the majority granted standing to a taxpayer impugning federal legislation

allowing abortion, and ruled:

D '... to establish status as a plaintiff in a suit seeking a declaration that the

legislation is invalid, if there is a serious issue of invalidity, a person need only to

show that he is affected by it directly or that he has a genuine interest as a citizen in

the validity of the legislation and that there is no other and effective manner in which

the issue may be brought before the Court.'

E The Canadian Supreme Court has in fact extended the liberalising affect of these

judgments beyond constitutional cases.

Finally, it is important to revisit the Nigerian position. What was said in Thomas (1)

was not merely an expression of the seeming inflexibility of s 6(6)(b) of the 1979 F

Nigerian Constitution but it was also a product of colonial heritage. Soon after the

attainment of independence Nigerian courts found themselves having to determine

when and under what circumstances would a litigant be accorded standing to

challenge the constitutionality of a statute or to ask for a judicial review. In Olawayin

v AG of Northern Nigeria (9) the plaintiff had challenged the G constitutionality of a

law which prohibited children from engaging in political activities. The trial court

dismissed the claim on the ground that no right of the plaintiff was alleged to have

been infringed and that it would be contrary to public principle to make the

declaration asked for in vacuo. He appealed to the Federal H Supreme Court which

dismissed the appeal on the same ground of absence of sufficient interest. In a classic

restatement of the orthodox common law approach, Unsworth, FJ said, at p. 274:

'There was no suggestion that the appellant was in imminent danger of coming

into conflict with the law or that there has been any real or I

1995 TLR p41

LUGAKINGIRA J

direct interference with his normal business or other activities - the appellant

failed to show A that he had a sufficient interest to sustain a claim - to hold that

there was an interest here would amount to saying that a private individual obtains an

interest by the mere enactment of a law which may in future come in conflict.

Curiously, the Nigerian courts remained stuck in that position even when the 1979 B

Constitution suggested a way out with the clause -

'Any person who alleges that any of the provisions of this chapter has been, is

being or likely to be contravened in any State in relation to him may apply to a High

Court in that State for redress.' C

This is illustrated in the much criticized decision in Adesanya v President of Nigeria

& Anor (10). In that case the appellant brought action challenging the appointment

by the President of the second respondent to the chairmanship of the D Federal

Electoral Commission. The latter was at the material time the Chief Judge of Bendel

State and was, therefore, disqualified from being appointed a member of the

Commission. When the matter came up for final disposal before the Supreme Court it

was unanimously held that the appellant had no locus standi E to bring the action

on the ground that he had not demonstrated the appointment and subsequent

confirmation by the Senate of the second respondent had in any way infringed his

civil rights and obligations. Significantly, though, Fatayi-Williams, CJN who

delivered the leading judgment had these interesting remarks to make (at p 20): F

'I take significant cognizance of the fact that Nigeria is a developing country

with a multi-ethnic society and a written Federal Constitution, where rumour

mongering is the pastime of the market places and the construction sites. To deny any

member of such a society who is aware G or believes, or is led to believe, that there

has been an infraction of any of the provisions of our Constitution, or that any law

passed by any of our Legislative Houses, whether Federal or State, is unconstitutional,

access to a Court of law to air his grievance on the flimsy excuse of lack of sufficient

interest is to provide a ready receipe for organized disenchantment with the judicial

process.' H

There was unfavorable reaction from the public and the profession to the Adesanya

decision and the ambivalence of the Chief Justice in the above passage provided more

ammunition. Henceforth many of the Nigerian courts preferred to use the broad and

1995 TLR p42

LUGAKINGIRA J

A liberal part of the judgment of the Chief Justice. Therefore, in Chief Isagba v

Alege (11), Omosun, J accorded standing to a plaintiff by holding that any Nigerian

taxpayer had sufficient interest in the observance of the provisions of the Constitution

by any organ of the State or its agency. And in AG of Bendel State v AG of Nigerian

(12), Obaseki, JSC, who was a party to the decision in Adesanya, came around to say:

'The constitution has opened the gates to the courts by its provisions and there

can be no justifiable reasons for closing the gates against those who do not want to be

governed by a law enacted NOT in accordance with the provisions of the

constitution.' C

The shift in Nigeria was sealed in Adediran v Interland Transport Ltd (13), where

Karibi-Whyte, JSC said:

D '. . . the restriction imposed at common law on the right of action - is

inconsistent with the provisions of s 6(6)(b) of the Constitution, 1979 and to that I

think the high constitutional policy involved in s 6(6)(b) is the removal of the

obstacles erected by the common law requirements against individuals bringing

actions before the court against the government and its institutions . . .' E

It was necessary to treat the subject at this length in order to demonstrate that Mr

Mussa's appreciation of locus standi in the context of constitutional litigation no

longer holds good. The notion of personal interest, personal injury or sufficient

interest over and above the interest of the general public has more to do with F

private law as distinct from public law. In matters of public interest litigation this

Court will not deny standing to a genuine and bona fide litigant even where he has no

personal interest in the matter. This position also accords with the decision in G

Benazir Bhutto v Federation of Pakistan (14), where it was held by the Supreme Court

that the traditional rule of locus standi can be dispensed with and procedure available

in public interest litigation can be made use of if the petitionis brought to the court by

a person acting bona fide.

H The relevance of public interest litigation in Tanzania cannot be overemphasized.

Having regard to our socio-economic conditions, this development

promises more hope to our people than any other strategy currently in place. First of

all, illiteracy is still rampant. We were recently told that Tanzania is second in Africa

in wiping out illiteracy but that is statistical juggling which is not reflected on the

ground. If we were that literate it would have been unnecessary for I

1995 TLR p43

LUGAKINGIRA J

Hanang District Council to pass by-laws for compulsory adult education which A

were recently published as Government Notice No 191 of 1994. By reason of this

illiteracy a greater part of the population is unaware of their rights, let alone how the

same can be realised. Secondly, Tanzanians are massively poor. Our ranking in B the

world on the basis of per capita income has persistently been the source of

embarrassment. Public interest litigation is a sophisticated mechanism which requires

professional handling. By reason of limited resources the vast majority of our people

cannot afford to engage lawyers even where they were aware of the infringement of

their rights and the perversion of the constitution. C

Other factors could be listed but perhaps the most painful of all is that over the years

since independence Tanzanians have developed a culture of apathy and silence. This,

in large measure, is a product of institutionalised mono-party politics which in its

repressive dimension, like detention without trial, supped up initiative and guts. The

people found contentment in being receivers without being seekers. D Our leaders

very well recognise this, and with the emergence of transparency in governance they

have not hesitated to affirm it. When the National Assembly was debating Hon. JS

Warioba's private motion on the desirability of a referendum before some features of

the Constitution were tampered with, Hon. Sukwa Said E Sukwa, after two

interruptions by his colleagues, continued and said (Parliamentary Debates, 26 August

1994):

'Mheshimiwa Spika, nilisema kwamba tatizo la nchi yetu sic wananchi. Lazima

tukubali hili F kwa kweli, tatizo ni sisi viongozi. Kama sisi viongozi tutakubaliana,

wananchi hawana matatizo. Mimi nina hakika Mheshimiwa Spika. Kama viongozi wa

Tanzania wote, wa pande zote mbili wa Zanzibar na wa Tanzania Bara, tutakubali

kusema Kesho Serikali moja, basi itakuwa kesho, na wananchi watafanya

maandamano kuunga mkono. Maana wananchi wetu hawana tatizo. Kwa nini

tunawapolekea hili tatizo? Nasema tatizo ni sisi viongozi.' G

Given all these and other circumstances, if there should spring up a public-spirited

individual and seek the Court's intervention against legislation or actions that H

pervert the Constitution, the Court, as guardian and trustee of the Constitution and

what it stands for, is under an obligation to rise up to the occasion and grant him

standing.

The present petitioner is such an individual.

These principles find expression in our constitution. It is apparent I

1995 TLR p44

LUGAKINGIRA J

A from the scheme of Part III, Chapter One of the Constitution that every person in

Tanzania is vested with a double capacity: the capacity as an individual and the

capacity as a member of the community. In his former capacity he enjoys all the basic

rights set out in art 12 to art 24; in the latter capacity he is bound to discharge duties

towards the community as indicated in art 25 to art 28. This B scheme reflects the

modern trend in constituionalism which recognises the pre-emimence of the

community in the formulation of the constitution. It is recognised that rights are

correlative with functions: we have them that we may make our contribution to the

social end. Our Constitution goes further to C emphazise the two capacities by

equipping the individual with a double standing to sue. In the first place he is vested

with standing by art 30(3) which states:

D '(3) Where any person alleges that any provision of this Part of this Chapter or

any law involving a basic right or duty has been, is being or is likely to be

contravened in relation to him in any part of the United Republic, he may, without

prejudice to any other action or remedy lawfully available to him in respect of the

same matter, institute proceedings for relief in the High Court.'

E This provision, in my view, caters for both personal and public interest litigation

for at times the two may prove inseparable. A person who sues because he desires to

be an independent parliamentary candidate where the system does not so allow

necessarily shoulders the burden for the public. It is also important to note F that

under this provision action lies where a person's right 'has been, is being or is likely to

be contravened.' These are plain and clear words which admit of no controversy.

Standing is therefore available under the Constitution even where contravention of a

basic right is reasonably apprehended. The case of Thomas G (1), and in as much as

it was decided in deference to the much criticized decision in Adesanya (10), has no

relevance in the context of our Constitution. In the upshot it is not correct to say, as

Mr Mussa suggested, that the petitioner has no locus standi because he cannot show

that his rights have already been infringed. In my view he is within the purview of

art 30(3) if there is in existence a law the operation of which is likely to contravene

his basis rights. H

Standing is additionally conferred by art 26(2), and this states:

'(2) Every person is entitled, subject to the procedure provided for by the law,

to institute proceedings for the protection of the Constitution and legality.' I

1995 TLR p45

LUGAKINGIRA J

Mr Mussa suggested that this provision has to be read with art 30(3) and cannot A be

used in lieu of the latter. With respect, I cannot agree. It is a cardinal rule of statutory

and constitutional interpretation that every provision stands independent of the other

and has a special function to perform unless the contrary intention appears. There is

nothing in art 26(2) or elsewhere to link it to art 30(3). The only B linkage is to art

30(4) and this is one of procedure rather than substance. Clause (4) empowers

Parliament to make provision for the procedure relating to institution of proceedings

under the article. It has not done so to date but that does not mean that the court is

hamstrung. In DPP v Daudi Pete, (15), the Court of Appeal stated C in that ' - until

the Parliament legislates under sub-art (4) the enforcement of the Basic Rights,

Freedoms and Duties may be effected under the procedure and practice that is

available in the High Court in the exercise of its original jurisdiction, depending on

the nature of the remedy sought.' I hold art 26(2) to be an D independent and

additional source of standing which can be invoked by a litigant depending on the

nature of his claim. Under this provision, too, and having regard to the objective

thereof - the protection of the Constitution and legality - a E proceeding may be

instituted to challenge either the validity of a law which appears to be inconsistent

with the Constitution or the legality of decision or action that appears to be contrary

to the Constitution or the law of the land. Personal interest is not an ingredient in

this provision; it is tailored for the community and falls under the sub-title 'Duties to

the Society.' It occurs to me, therefore, that art 26(2) enacts F into our Constitution

the doctrine of public interest litigation. It is then not in logic or foreign precedent

that we have to go for this doctrine; it is already with us in our own Constitution.

I hasten to emphasize, however, that standing will be granted on the basis of public

interest litigation where the petition is bona fide and evidently for the public G good

and where the Court can provide an effective remedy. This point is underscored in

Peoples Union for Democratic Rights v Minister of Home Affairs (16), where it was

stated that 'public interest litigation' meant nothing more than what it stated, namely,

it is a litigation in the interest of the public. It is not the type of litigation which is

meant to satisfy the curiosity of the people, but it is a litigation H which is instituted

with a desire that the court would be able to give effective relief to the whole or a

section of the society. It is emphasized in the case that the condition which must be

fulfilled before public interest litigation is entertained by the court is that the court

should be in a position I

1995 TLR p46

LUGAKINGIRA J

A to give effective and complete relief. If no effective or complete relief can be

granted, the court should not entertain public interest litigation.

I gave serious consideration to the matters raised in this petition and the prayers

connected therewith and I was persuaded that in quite a number of areas the B

public interest overwhelmed what appeared to be a private factor. I therefore allowed

arguments to proceed on the issues reviewed above. But in the light of those

arguments and what is stated in this paragraph, it may be necessary to reconsider the

position of one issue at the appropriate stage later. Meanwhile I will C turn to

dispose of the question of cause of action. Cause of action is not a problem in this

petition. Mr Mussa seemed to suggest, but I respectfully disagree, that in order for

cause of action to arise an event injurious to the rights of the petitioner must have

taken place. In my view, where the issue is whether a law is unconstitutional the

court looks at the law itself but not at how it works. The D following passage from

Chitaley & Rao, The Constitutionof India (1970: 686), citing Prahalad Jena v State

(17), is to the point:

E 'In order to determine whether a particular law is repugnant or inconsistent

with the Fundamental Rights it is the provisions of the Act that must be looked at and

not the manner in which the power under the provision is actually exercised.

Inconsistency or repugnancy does not depend upon the exercise of the power by

virtue of the provisions in the Act but on the nature of the provisions themselves.' F

I agree and I do not wish to add anything more. In this petition the dispute is over the

validity of various laws and this, in my view, constitutes the necessary cause of action.

A situation could certainly arise where the cause of action would depend upon actual

exercise of power. Such a situation is exemplified in this petition G where the

constitutionality of the appointment of Zanzibaris to non-union positions on the

Mainland is questioned. In that context it is the appointments themselves that

constitute the cause of action, but that has to do with the validity of the action H

rather than a law. There now remains the question of justiciability of the claims but

since that has more to do with the first of the issues, I will now turn to consider them.

The first issue seeks to determine the immutability of basic rights enacted in the

Constitution. This turns on the power of the Parliament to amend the provisions

providing for these rights. Specifi- I

1995 TLR p47

LUGAKINGIRA J

cally, what is at issue are the amendments to art 20 and art 39 of the Constitution A

vide the Eighth Constitutional Amendment Act, 1992. In its original form art 20 read

as follows:

'20 - (1) Subject to the laws of the land, every person is entitled to freedom of

peaceful assembly, association and public expression, that is to say, the right to

assemble freely and B peaceably, to associate with other persons and, in particular, to

form or belong to organisations or associations formed for the purposes of protecting

or furthering his or any other interests.

(2) Subject to the relevant laws of the land, a person shall not be compelled to

belong to any association. C

In its amended form clause (1) remains unaffected, hence the rights and freedoms

spelt out therein remain as before. Our interest in this petition centres on the freedom

of association which, under the present multi-party system, includes the D

formation of political parties. Clause (2) was also unaffected by the amendment save

that it now became clause (4). In between there are new clauses (2) and (3) which it is

necessary to set out in full. (The translation from Kiswahili is partly my own and

partly adapted). E

(2) Without prejudice to subsection (1) no political party shall qualify for

registration if by its constitution and policy -

(a) it aims to advocate or further the interests of -

(i) any religious belief of group;

(ii) any tribal, ethnic or racial group; F

(iii) only a specific area within any part of the United Republic;

(b) it advocates the breaking up of the Union constituting, the United

Republic;

attaining its political objectives; G

(d) it advocates or aims to carry on its political activities exclusively in one

part of the United Republic; or

(e) it does not allow periodic and democratic elections of its leadership

(3) Parliament may enact legislation prescribing conditions which will ensure

compliance by political parties with the provisions of subsec 2 in relation to the

people's freedom and right of association and assembly. H

Pursuant to clause (3), Parliament enacted the Political Parties Act, 1992 providing

for the registration of political parties and other matters. Clause (2) above was lifted in

its entirety and re- I

1995 TLR p48

LUGAKINGIRA J

A enacted as s 9(2) of the Act. In addition s 8 of the Act provided for a two-stage

registration - provisional and full registration. Provisional registration is done upon

fulfilment of the conditions prescribed in s 9; full registration is effected after

fulfilment of the conditions in s 10 which reads:

B '10 - No political party shall be qualified to be fully registered unless -

(a) it has been provisionally registered;

(b) it has obtained not less than two hundred members who are qualified

to be registered as voters for the purpose of parliamentary elections from each of at

least ten Regions C of the United Republic out of which at least two Regions are in

Tanzania Zanzibar being one Region each from Zanzibar and Pemba; and

such leadership draws its members from both Tanzania Zanzibar and Tanzania

Mainland; D

(d) it has submitted to the Registrar the location of its head office within

the United Republic and a postal address to which notices and other communications

may be sent.

E It is contended by the petitioner that ss 8, 9 and 10 of the Political Parties Act are

unconstitutional in the sense that they impose enough conditions on the formation of

political parties and thereby inhibiting enjoyment of the freedom of association

enacted in art 20(1). It is further contended that art 20(2) and (3) from which those

sections derive are for the same reason unconstitutional. I am therefore invited to

strike out art 20(2) and (3) of the Constitution as well as ss 8, 9, 10 and 15 of the

Political Parties Act. F

On the other hand, art 39 previously provided as follows:

G '39. 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.

H As amended by the Eighth Constitutional Amendment Act, the above paragraphs

are retained but re-numbered (b) and (d) respectively. There is added new paragraphs

(a) and (c) which state (my translation):

(a) is a citizen of the United Republic by birth;

(d) is a member of and sponsored by a political party. I

1995 TLR p49

LUGAKINGIRA J

The requirement for membership of and sponsorship by a political party is A

extended to candidacy for the National Assembly in art 67 and art 77 as well as for

local councils in s 39 of the Local Authorities (Elections) Act 1979 as amended by the

Local Authorities (Elections) (Amendment) Act, 1992 (No 7), s 9. The petitioner

contends that the requirement for membership of and sponsorship by a political party

abridges the right to participate in national public affairs granted by art 21(1) which

states: B

'21 - (1) Every citizen of the United Republic is entitled to take part in the

government of the country, either directly or through freely chosen representatives,

in accordance with procedure provided by or under the law. C

I am therefore called upon to strike out para (d) in art 39 and wherever else the

requirement for membership of and sponsorship by a political party occurs. D

As stated earlier the issue of immutability turns on Parliament's power to amend the

Constitution. In assessing this power it is appropriate to recall, in the first place, that

fundamental rights are not gifts from the State. They inhere in a person by reason of

his birth and are therefore prior to the State and the law. In our times E one method

of judging the character of a government is to look at the extent to which it

recognises and protects human rights. The raison d'etre for any government is its

ability to secure the welfare of the governed. Its claim to the allegiance of the

governed has to be in terms of what that allegiance is to serve. Allegiance has to be

correlative with rights. Modern constitutions like our own have F enacted

fundamental rights in their provisions. This does not mean that the rights are thereby

created; rather it is evidence of their recognition and the intention that they should

be enforceable in a court of law. It can therefore be argued that the very decision to

translate fundamental rights into a written code is by itself a restraint upon the

powers of Parliament to act arbitrarily. G

As aptly observed by Chief Justice Nasim Hassan Shah in Muhammed Nawaz Sharif v

President at Pakistan (18), at p 557: H

'Fundamental Rights in essence are restraints on the arbitrary exercise of

power by the State in relation to any activity that an individual can engage. Although

constitutional guarantees are often couched in permissive terminology, in essence

they impose limitations on the power of the State to restrict such activities. Moreover,

Basic or Fundamental Rights of individuals which presently stand I

1995 TLR p50

LUGAKINGIRA J

A formally incorporated in the modern constitutional documents derive their

lineage from and are traceable to the ancient Natural Law.

Our Constitution confers on Parliament very wide powers of amendment but these

powers are by no means unlimited. These powers are to be found in art 98(1) and (2)

and it is necessary to set out the relevant parts. B

'98 - (1) Parliament may enact legislation altering any provision of this

Constitution - (emphasis added)

C (2) For the purpose of construing the provisions of subsec (1), references to

alteration of any provision of this Constitution or of any law include references to the

amendment or modification, of those provisions, suspension or repeal and

replacement of the provisions or the re-enactment or modification in the application

of those provisions.

D These powers are evidently wide. It has to be accepted, in the first place, that

Parliament has power to amend even those provisions providing for basic human

rights. Secondly, that power is not confined to a small sphere.

E It extends to modification of those provisions, suspension or repeal and

replacement of same, re-enactment or modification in the application thereof. Drastic

as some of these terms may sound, I still do not believe that they authorise abrogation

from the Constitution of these rights. The provisions of art 98 should be read in the

light of the clawback clauses in art 30(2) and 31. The former reads as follows: F

'(2) It is hereby declared that no provision contained in this Part of this

Constitution, which stipulates the basic human rights, freedoms and duties, shall be

construed as invalidating any existing law or prohibiting the enactment of any law or

the doing of any lawful act under such law, making provision for - G

(a) ensuring that the rights and freedoms of others or the public interest

are not prejudiced by the misuse of the individual rights and freedoms; H

(b) ensuring the interests of defence, public safety, public order, public

morality, public health, rural and urban development planning, the development

planning, the development and utilisation of mineral resources or the development or

utilisation of any other property in such manner as to promote the public benefit;

made in any civil or criminal proceeding; I

1995 TLR p51

LUGAKINGIRA J

(d) the protection of the reputation, rights and freedoms of others or the

private lives of A persons involved in any court proceedings, prohibiting the

disclosure of confidential information, or the safeguarding of the dignity, authority

and independence of the courts;

(e) imposing restrictions, supervision and control over the establishment,

management and operation of societies and private companies in the country; or B

(f) enabling any other thing to be done which promotes, enhances or

protects the national interest generally.

Article 31, on the other hand, empowers Parliament, notwithstanding the C

provisions of art 30(2), to legislate for measures derogating from the provisions of art

14 (Right to live) and art 15 (Right to personal freedom) during periods of emergency,

or in ordinary times in relation to individuals who are believed to be conducting

themselves in a manner that endangers or compromises national security. We may

also refer to art 97(1) which provides in part - D

(1) subject to the other provisions of this Constitution, the legislative power of

Parliament shall be exercised through the National Assembly ...

Reading all these provisions together, it occurs to me that Parliament's power in E

relation to the amendment of the provisions under Part III of Chapter One of the

Constitution can only be exercised within the limits of art 30(2) and art 31. Hence, F

even if it is a suspension, or a repeal and replacement it must be justifiable within the

scope of the two provisions. I have therefore come to the conclusion, and Mr Mussa

concedes, that Parliament's power of amendment are not unlimited. It should be

recognised, on the other hand, that society can never be static. New times bring with

them new needs and aspirations. Society's perception G of basic human rights is

therefore bound to change according to changed circumstances, and that makes it

imperative for Parliament to have power to alter every provision of the Constitution.

What remains immutable, therefore, is the ethic of human rights but not the letter by

which they are expressed. H

We turn to consider whether the amendments complained of were not within the

constitutional limits, beginning with art 20(2) and (3). The former does not abrogate

or abridge beyond the purview of art 30(2) the right of association guaranteed under

art 20(1). It merely lays down the conditions a political party has to fulfil before

registration and all these conditions are within the perimeters of art I

1995 TLR p52

LUGAKINGIRA J

A 30(2). The conditions are clearly aimed at the promotion and enhancement of

public safety, public order and national cohesion. There cannot be any such thing as

absolute or uncontrolled liberty wholly freedom without restraint, for that would

lead to anarchy and disorder. Indeed, in a young country like ours, nothing could be

B more suicidal than to licence parties based on tribe, race or religion. The problem

with art 20(3) is even less apparent. It is an enabling provision giving Parliament

power to enact a law for the registration of political parties and for ensuring

compliance with art 20(2) by those parties. It does not expressly tell C Parliament

what to write in that law. I am satisfied and hold that art 20(2) and (3) were validly

enacted. There remains, however, the provisions of the Political Parties Act which

fall for comment under the second issue. Next is art 39 and allied articles and

provisions relating to presidential, parliamentary and local council candidacies. Once

again, I am unfortunate in having to say that these D amendments were within the

powers of the Parliament. They do not abrogate but merely modify the application of

art 21(1) by providing that participation in national public affairs shall be through

political parties. As seen earlier, modification in application is covered under art

98(2). I also think that the amendments are within E the ambit of art 30(2) if public

order be taken as having supplied the inspiration. These amendments were, therefore,

validly made. It should be understood, however, that I am at this juncture talking of

validity in strict legal terms; the amendments are otherwise not free from difficulties

and these are dealt with under the fifth issue. F

The Court's power to declare a law void is founded in art 64(5). Having held that the

impugned constitutional amendments were validly made, I do not have to consider

whether such amendments are 'law' within the meaning of the article. I have read in

this connection the interesting arguments in the cases of Golaknath v State of Punjab

(19) and Kesavananda v State of Keral (20) but in view of the G decision I have

reached, I am unable to take advantage of them.

The second issue questions the constitutionality of ss 8, 9 10 and 15 of the H Political

Parties Act. Much effort had gone into this matter when I was obliged to admit that

the trial of this issue should have been stayed. Last year the petitioner filed at the Dar

es Salaam registry of this Court an application for orders of certicrari and mandamus.

That was Miscellaneous Civil Cause No 67 of 1993, the applicants being himself and

the Democratic Party and the respondents being the Attorney General and the

Registrar of Political Parties. The grounds for the application were that the Registrar

1995 TLR p53

LUGAKINGIRA J

was biased in refusing to register the Democratic Party and that the Political A

Parties Act (apparently the whole of it) was unconstitutional and void. He was

praying for orders to quash the Registrar's decision and to direct him to reconsider the

Democratic Party's application according to law. The application was heard and

subsequently dismissed by Maina, J on 14 December, 1993. Two days later B the

petitioner lodged a notice of appeal. There is now pending before the Court of Appeal

a Civil Appeal No 24 of 1994, in which the first ground of appeal states:

'The learned judge erred in law in failing to hold that section 8 and 10 of the

Political Parties C Act, 1992, Act No 5 of 1992 are violative of art 13(6)(a) of the

Constitution of the United Republic of Tanzania and therefore null and void on the

ground that they do not provide for fair hearing before the Second Respondent's

decision to refuse full registration of a political party.

The memorandum concludes: D

'It is proposed to ask the Court for the following orders: -

(i) an order striking out ss 8, 10 and 16 of the Political Parties Act, 1992.'

In the present petition I am confronted with the same prayer with slight variation,

namely, to strike out ss 8, 9 10 and 15 of the same Act. In other words a suit in which

the matter in issue is substantially in issue in another suit between the same parties is

pending in another court in the country. It seems also that the Dar F es Salaam suit

was instituted earlier because the record of this petition shows that its trial was being

put off to await the outcome of the former. In those proceedings we do not have a

prescribed procedure but we have invariably invoked and been guided by the

provisions of the Civil Procedure Code, 1966. Section 8 of the Code provides thus: G

8. No court shall proceed with the trial of any suit in which the matter in issue

is also directly or substantially in issue in a previously instituted suit between the

same parties, or between parties under whom they or any of them claim litigating

under the same title where such suit is pending in the same or any other court in

Tanganyika having jurisdiction to grant the relief claimed. H

This provision is in parimateria with s 10 of the Indian Code of Civil Procedure, 1908.

Mulla observes in relation to the latter that the object is to prevent courts of

concurrent jurisdiction from simul- I

1995 TLR p54

LUGAKINGIRA J

A taneously trying two parallel suits in respect of the same matter in issue. It goes

on to claim, citing a 1919 obscure authority, that the section enacts merely a rule of

procedure and a decree passed in contravention of it is not a nullity and cannot be

disregarded in execution proceedings. I think, however, that this might be true where

the subsequent suit is decided without knowledge of the existence of the previous

suit. B

It is the pendancy of the previously instituted suit that constitutes a bar to the trial of

the subsequent suit. The word 'suit' has been held to include 'appeal': see Raj Spinning

Mills v AG King Ltd (21). The 'matter in issue' in the provision has also C been

construed as having reference to the entire subject matter in controversy between the

parties and not merely one or more of the several issues: see Hariram v Hazi

Mohamed (22). The same position was stated by the Court of Appeal of Eastern Africa

in Jadva Karson v Harman Singh Bhogal (23), when they were considering s 6 of

Kenya Civil Procedure Ordinance which is again in D parimateria with our s 8. The

case before me is, of course, a novelty. Like the eye of a butterfly, it is a composite of

several petitions wrapped up into one. When considering the expression 'matter in

issue' one has to consider each issue independently for they have no relationship.

There is not one subject matter in E controversy between the parties but several. In

these circumstances the second issue is severable as it could indeed have been tried in

a separate suit. In the circumstances of this case 'matter in issue' must be taken to be

matter in issue in each of the six issues framed and I am satisfied that the same matter

is in issue in the appeal pending before the Court of Appeal. F

In Jinnat Bibi v Howeah Jute Mills Co Ltd (24), it was held that the provisions of s 10

of the Indian Code were mandatory and left no discretion to the courts in respect of

the stay of suits when circumstances are such as to invoke the G operation of that

section. It was further held that one test of the application of that to a particular case

is whether on the final decision being reached in the previous suit such decision

would operate as res judicata in the subsequent suit. Indian decisions are certainly not

binding on this Court, but they deserve the greatest respect where they expound a

provision which was previously our own and which remains in parimateria with our

own. H

The Indian Code of Civil Procedure was in application in Tanganyika until 1966 and s

10 thereof is in parimateria with our s 8. It is therefore not only in courtesy but also

in common sense that I consider myself entitled to rely on these decisions. In so

doing, I I

1995 TLR p55

LUGAKINGIRA J

hold that the provisions of s 8 of our code are mandatory and provide no room for A

discretion in circumstances where it is invokable. It is invokable in the instant case.

Moreover, there is no doubt that the final decision in the pending appeal would

operate as res judicata in the instant petition. The question is not whether I am in a

position to decide the matter ahead of the Court of Appeal; courts of law B are not

racecourses. The point is that I am bound to stop in my tracks and let the previous

suit proceed to finality because the decision on the matter in issue would operate as

res judicata on the same matter in the suit before me. I will therefore stay the decision

on the second issue until the outcome of Civil Appeal No 24 of 1994. C

In the third issue the Court is invited to pronounce on the constitutionality of ss 5(2),

13, 25, 37-47 of the Newspapers Act, 1976 and para 12 of GN No 166 of 1977. I have

two observations to make in this connection. First, it must be realised that the

constitutionality of a provision or statue is not found in what could happen D in its

operation but in what it actual provides for. Where a provision is reasonable and valid

the mere possibility of its being abused in actual operation will not make it invalid:

Collector of Customs (Madras) v NS Chetty (25). It seems E to me, with respect, that

much of what was said against the above provisions reflected generally on what could

happen in their operation rather than on what they actually provided for. I was

generally referred to the decision of the Court of Appeal in Kukutia ole Pumbum v

Attorney General (26), but I think that case F covers a different situation - the

situation where a person was deprived of his right to sue unless he was permitted to

do so by the defendant (the Government). The provisions complained of however, are

administrative and implementational and their constitutionality can only be

challenged if they were not within the power of the Legislature to enact them. G

Secondly, and most importantly, I have unfortunately come to doubt the petitioner's

standing in this issue. As stated before, our Constitution confers a double capacity on

every person - his personal and his community capacities. Now, in what capacity did

the petitioner take up these provisions? It cannot be in his personal H capacity

because there is nothing in the provisions or any of them which is shown to have

contravened, is contravening or is likely to contravene his right to receive or impart

information. The contravention has to be read in the provisions themselves. It

transpires that the petitioner's complaint is in fact founded on the banning of the

'Michapo' and 'Cheka' newspapers vide Government Notice I

1995 TLR p56

LUGAKINGIRA J

A No 8 of 1993. That is improper. The use or misuse of the powers granted by s 25,

the relevant provision in that connection, has nothing to do with the validity of that

provision as such. What would be relevant is whether Parliament had no power to

grant those powers. As for the misfortunes of 'Michapo' and 'Cheka' the B doors

were open for the option of judicial review but it seems better options were found.

Can we alternatively say that this issue falls under public interest litigation? I don't

think so either. As seen before, public interest litigation is litigation in the interest of

the public. In other words, the general public, or section thereof, must C be seen to

be aggrieved by the state of the law and to be desirous of redress. There could

probably be provisions in the Newspaper Act one could consider oppressive,

unreasonable and even unconstitutional, but that is beside the point; the point is that

there is no evidence of public agitation against that law. And by 'public' I do not

mean merely newspaper editors but the Tanzanian public D generally. Ironically,

whatever ills this law may be identified with appear to be overshadowed by the

unprecedented upsurge of private newspapers in recent years. As stated in Sanjeev

Coke Manufacturing Co v Bharat Coking Coal Ltd E (27), courts are not authorised

to make disembodied pronouncements on serious and cloudly issues of constitutional

policy without battle lines being properly drawn. Judicial pronouncements cannot be

immaculate legal conceptions. It is but right that no important point of law should be

decided without a proper issue between parties properly ranged on either side and a

crossing of the swords. It is F inexpedient for the Court to delve into problems

which do not arise and express opinion thereon. In the premises I decline to

pronounce on the third issue.

The fourth issue brings us to the provisions of the Police Force Ordinance and the

Political Parties Act touching on assemblies and processions. Under s 40 of the G

former a permit is necessary to organise an assembly or procession in a public place.

The permit is grantable by the District Commissioner. Similarly, political parties

require a permit from the District Commissioner to hold public meetings pursuant to

the provisions of s 11(1) of the Political Parties Act. Section 41 of the H Ordinance

empowers a police officer above the rank of inspector or any magistrate to stop or

prevent any assembly or procession if the holding or continuance of it "is imminently

likely to cause a breach of the peace, or to prejudice the public safety ...' The police

officer or magistrate may therefore give orders, including orders for the dispersal of

the assembly or procession. Section 42 defines what constitutes an unlawful assembly

or I

1995 TLR p57

LUGAKINGIRA J

procession, namely, an assembly or procession not authorised by a permit, where A

one is required, or one held in contravention of the conditions thereon or in disregard

of orders by the police or magistrate. Section 43 is the penal provision for

disobediences, etc. These provisions i.e. ss 41, 42 and 43, are imported into the

Political Parties Act vide s 11(2) thereof. It was argued for the petitioner that B these

provisions are inconsistent with the freedom of peaceful assembly and public

expression which is guaranteed under art 20(1). Mr Mussa, on the other hand,

thought they were all supervisory in character, intended to ensure peace and good

order, to the end that the rights and freedoms may be better enjoyed. C

A better approach to these provisions is to distinguish their functions. First of all,

there is the requirement for a permit grantable by the District Commissioner and this

falls under s 40 of the Ordinance and s 11(1) of the Act. Next there is control of the

meetings and processions and this falls under s 41, the exercise of that D power

being vested in the police and the magistracy. Finally, we have the criminal law

provisions in ss 42 and 42. In considering the question of constitutionality these

distinctions have to be kept in mind. I draw these distinctions also because not all

meetings or processions require a permit, yet all attract police and magisterial

supervision. By virtue of GN No 169 of 1958, religious processions as E well as

religions, social, educational, entertainment and sporting assemblies do not require a

permit; by virtue of GN No 98 of 1960 assemblies convened by rural local authorities

within the areas of their jurisdiction do not require a permit; and by virtue GN No

237 of 1962 assemblies convened by Municipal or Town Councils within the area of

their jurisdiction do not require permits either; but all these F events attract police

and magisterial supervision. Let us now look at the character of the three divisions in

relation to the Constitution. Section 40(2) provides in part: G

'(2) Any person who is desirous of convening, collecting, forming or

organising any assembly or procession in any public place, shall first make application

for a permit in that behalf to the District Commissioner . . . and if the District

Commissioner is satisfied, having regard to all H the circumstances, . . . that the

assembly or procession is not likely to cause a breach of the peace . . . he shall, subject

to the provisions of sub-section (3), issue a permit . . .'

Section 11(1) of the Political Parties Act is to the same effect although it does not

expressly set out all that is in the above provi- I

1995 TLR p58

LUGAKINGIRA J

A sion. These provisions may then be contrasted with the provisions of art 20(1)

which states in part:

(1) Subject to the laws of the land, every person is entitled to freedom of

peaceful assembly, association and public expression, that is to say, the right to

assemble freely and peaceably . . . B

The Constitution is the basic or paramount law of the land and cannot be overridden

by any other law. Where, as in the above provision, the enjoyment of a constitutional

right is 'subject to the laws of the land,' the necessary implication is that those laws

must be lawful laws. A law which seeks to make the exercise of C those rights

subject to the permission of another person cannot be consistent with the express

provisions of the Constitution for it makes the exercise illusory. In this class are s 40

of the Police Force Ordinance and s 11(1) of the Political Parties Act. Both provisions

hijack the right to peaceful assembly and procession D guaranteed under the

Constitution and place it under the personal disposition of the District Commissioner.

It is a right which cannot be enjoyed unless the District Commissioner permits. That

is precisely the position that was encountered in ole Pumbun (26) where the right to

sue the Government could not be exercised save with the permission of the

Government. The Court of Appeal was prompted to say: - E

'. . . a law which seeks to limit or derogate from the basic right of the

individual on grounds of F public interest will be saved by art 30(2) of the

Constitution only if it satisfies two essential requirements: First such a law must be

lawful in the sense that it is not arbitrary. It should make adequate safeguards against

arbitrary decision, and provide effective controls against abuse by those in authority

when using the law. Secondly, the limitation imposed by such law must not be more

than is reasonably necessary to achieve the legitimate object. This is what G is also

known as the principle of proportionality . . . If the law . . . does not meet both

requirements, such law is not saved by art 30(2) of the Constitution, it is null and

void.'

H Section 40 does not meet these requirements. It is in the absolute discretion of the

District Commissioner to determine the circumstances conductive to the organisation

of an assembly or procession; there is no adequate or any safeguards against arbitrary

exercise of that discretion and there is no mechanism for challenging his decisions,

except probably by way of judicial review which is tortuous and unbeneficial for the

purpose of assemblies and pro- I

1995 TLR p59

LUGAKINGIRA J

cessions. I have easily come to the conclusion that the requirement for a permit A

infringes the freedom of peaceful assembly and procession and is therefore

unconstitutional. It is not irrelevant to add, either, that in the Tanzanian context this

freedom is rendered the more illusory by the stark truth that the power to grant

permits is vested in cadres of the ruling party. B

Coming to s 41, I am of the view that the provision does not operate to take away the

right to hold assemblies or processions. it only empowers the police and the

magistracy to step in for the preservation of peace and order. The provision is thus

saved by art 30(2)(b), it being in furtherance of the State's normal functions of C

ensuring public safety and public order and is reasonably justifiable in a democratic

society. As rightly remarked by Mr. Mussa the enjoyment of basic human rights

presupposes the existence of law and order. A provision like s 41 is therefore a

necessary concomitant to the realisation of these rights. Moreover, there is inherent

in the provision a safeguard against arbitrary use. It comes into D play when the

holding or continuance of an assembly or procession 'is imminently likely to cause a

breach of the peace, or to prejudice the public safety or the maintenance of public

order or to be used for any unlawful purpose,' (emphasis added) and therefore meets

what is termed the 'clear and present danger' test. In Muhammed Nawaz Sharif (18)

cited earlier, Saleem Akhtar, J said, at pp 832--833: E

'Every restriction (on basic rights) must pass the test of reasonableness and

overriding public interest. Restriction can be imposed and freedom . . . may be

curtailed provided it is justified F by the 'clear and present danger' test enunciated in

Saia v New York (1948) 334 US 558 that the substantive evil must be extremely

serious and the degree of imminence extremely high.'

Section 41, in my view, is conditioned on a clear and present danger where the G

substantive evil is extremely serious and the degree of imminence extremely high. A

situation befitting the application of the provision can be found in the Guyanese case

of CR Ramson v Lloyed Barker and the Attorney General (28). That case H arose

from the dispersal of a political meeting by the police. The plaintiff, an Attorney-at-

Law, was standing near his motor car parked by the roadside discussing with a

colleague the methods used by the police to disperse the crowd. A policeman came

up, held the plaintiff by his arm and asked him what he was doing there, and was told

'that is my business.' Other policemen came I

1995 TLR p60

LUGAKINGIRA J

A up and surrounded the plaintiff, who was then jabbed several times in the ribs

with a baton by another policeman who ordered him into the car. The plaintiff and

his colleague then got into the car unwillingly and drove away. The plaintiff later

brought action alleging, inter alia, an infringement of his right to freedom of

assembly, expression and movement. It was held by the Court of Appeal that there B

was no infringement of the constiutional right to the freedom of assembly, expression

or movement as the action of the police was not directed towards a hindrance or

deprivation of these constitutional freedoms.

C These factors apart, it is equally apparent that the petitioner admits the legitimate

role of the police at assemblies and processions although, somehow, he does not

realise that this role is specially authorised by s 41. Para 19(h) of the petition states in

part:

D 'The court should also declare that a citizen has right to convene a peaceful

assembly or public rally and the right to make a peaceful demonstration or procession

without a permit from anybody except that he should just inform the police before

doing so'. (my emphasis).

E I would not wish to believe that by this prayer it is intended that the police

should attend assemblies and processions to applaud the actors and fold their arms in

the face of an imminent break down in law and order. I am satisfied that s 41 is a

valid provision.

F Finally, ss 42 and 43. The former defines an unlawful assembly or procession and

the latter punishes the same. Article 30(2)(a) and (b) of the constitution empowers the

Legislature to enact legislation for ensuring that the rights and freedoms of others or

the public interest are not prejudiced by the misuse of the individual rights and

freedoms and for ensuring public safety and public order. This power, in my view,

includes the power to prescribe penalties for criminal G breaches. In other words,

the penalties are necessarily concomitant to the effective exercise of police and

magisterial powers under the other provisions. I consider the provisions valid as well.

H At this stage I will proceed to show the significance of the distinction I have been

making. I have held that the requirement for a permit is unconstitutional but not the

police magisterial and penal role. The crucial question now is whether these aspects

can be severed. Severance is provided for under art 64(5) which states that 'any other

law inconsistent with the provisions of the Constitution . . . shall, to the extent of the

inconsistency, be void.' It is therefore established that where the valid portion is

severable from the rest, I

1995 TLR p61

LUGAKINGIRA J

that portion will be maintained provided it is sufficient to carry out the purpose of A

the Act. Delivering the judgment of the Privy Council in AG of Alberta v AG of

Canada (29) at p 516, Viscount Simon said:

'The real question is whether what remains is so inextricably bound up with

the part declared B invalid that what remains cannot independently survive, or as it

has sometimes been put, whether on a fair reivew of the whole matter it can be

assumed that the Legislature would have enacted what survives without enacting the

part that is ultra vires at all.' C

I am in no doubt whatsoever that the permit aspect can be expunged and expelled

from the law without prejudicing the rest. This is illustrated by the fact that the

supervisory aspects already operate independently where a permit is not required. It

is evident, therefore, that the Legislature could have enacted the supervisory aspects

without enacting the permit aspect. Having held, and I repeat, that the D

requirement for a permit is unconstitutional and void, I direct the provisions of s 40 of

the Police Force Ordinance and s 11(1)(a) of the Political Parties Act, and all

provisions relating thereto and connected therewith, shall henceforth be read as if all

reference to a permit were removed. It follows that from this moment it shall be E

lawful for any person or body to convene, collect, form or organise and address an

assembly or procession in any public place without first having to obtain a permit

from the District Commissioner. Until the Legislature makes appropriate

arrangements for this purpose, it shall be sufficient for a notice of such assembly or

procession to be lodged with the police, being delivered a copy to the District

commissioner for his information. F

In reaching this decision, I am certainly aware of the decision cited to me in C Mtikila

& Ors VR (30). In that case the present petitioner and others were charged before the

District Court of Dodoma with three counts, the first of which alleged G 'refusing to

desist from convening a meeting or assembly after being warned not to do so by

police officers contrary to ss 41 and 42 of the Police Force Ordinance, Cap 322.' They

were convicted and fined Shs 500/= each. They appealed to this H Court and it was

contended, inter alia, that s 41 was unconstitutional. Mwalusanya, J agreed and said: 'I

construe s 41 of the Police Force Ordinance to be void. From now onwards this

section is deleted from the Statute Book.' I am given to understand that an appeal has

been lodged against that decision. I

1995 TLR p62

LUGAKINGIRA J

A The fact that an appeal is pending naturally restrains me in my comments on that

decision, yet I cannot avoid to show, albeit briefly, why I find that decision difficult

to go by. The learned judge did not merely hold s 41 to be unconstitutional; he went

further and held the entire trial to be a nullity. He said between pp 23 and 25 of his

judgment: B

'In my judgment I find that the denial by the trial magistrate to have the

appellants have access to the documents they required for their defence was a

fundamental defect which is not curable - The error is so fundamental that it has

rendered the whole trial a nullity.' C

This is significant indeed. It is established practice that where a matter can be

disposed of without recourse to the Constitution, the Constitution should not be

involved at all. The Court will pronounce on the constitutionality of a statue only

when it is necessary for the decision of the case to do so: Wahid Munwar Khan v D

State (31). In that case a passage from Coday's Treatise on Constitutional Limitations

was also cited in these terms:

E 'In any case where a constitutional question is raised, though it may be

legitimately presented by the record, yet if the record presents some other clear

ground the court may rest its judgment on that ground alone, if the other questions

are immaterial having regard to the view taken by the court.'

F The Supreme Court of Zimbabwe expressed the same view in Minister of Home

Affairs v Hickke & Ors (32), where Georges, CJ said (at 758):

'Courts will not normally consider a constitutional question unless the

existence of a remedy depends upon it; if a remedy is available to an applicant under

some other legislative G provision or on some other basis, whether legal or factual, a

court will usually decline to determine whether there has been, in addition, a breach

of the Declaration of Rights.'

H And here at home the Court of Appeal had this to say in Attorney General v WK

Butambala (33):

'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 serious occasions.' I

1995 TLR p63

LUGAKINGIRA J

The court continued: A

'... it is not desirable to reach a situation where we have 'ambulance courts'

which go round looking for situations where we can invalidate statutes.'

It is evident that the appeal under reference could have been disposed of on the B

ground that the trial was a nullity without going into the constitutionality of s 41. It is

indeed curious that a trial which was adjudged a nullity could still provide the basis

for striking down s 41. On these grounds and others, I was unable to benefit from the

decision of my learned brother. C

The fifth issue takes us back to the amendments to the Constitution and elsewhere

which make membership of and sponsorship by a political party mandatory for a

person to contest presidential, parliamentary or local authority elections. I held that

the amendment was constitutionally valid but I reserved my D position on their

practical implications until this stage. It is essential for the purpose of the present

exercise, and for ease of reference, to set out side by side the provisions of art 21(1),

art 20(4) and art 39(c), the last mentioned being representative of allied amendments

elsewhere. Article 21(1) reads as follows: E

'(1) Every citizen of the United Republic is entitled to take part in the

government of the country, either directly or through freely chosen representatives,

in accordance with procedure provided by or under the law.' F

Article 20(4) states (my translation):

'(4) Without prejudice to the relevant laws, no person shall be compelled to

belong to any party or organisation, or for any political party to be refused

registration by reason only of its ideology or philosophy.' G

And art 39(c) states (my translation):

'39. No person shall be eligible for election to the office of President of the

United Republic unless he - H

(a) ...; (b) ...

As generally understood the citizen's right to participate in the government of his

country implies three considerations: the right to I

1995 TLR p64

LUGAKINGIRA J

A the franchise, meaning the right to elect his representatives; the right to

represent, meaning the right to be elected to law making bodies; and the right to be

chosen to political office. These three rights are, in my view, epitomized in the

provisions of art 21(1), subject, of course, to the qualifications which expediency may

dictate for the exercise of these rights, e.g literacy and age. But while B accepting the

relevancy of such qualifications it has to be admitted in the first place that the

concept of basic human rights has a utilitarian aspect to it: to whom are these rights to

be useful? Harold Laski (A Grammar of Politics, 1967, at 92) responds thus:

C 'There is only one possible answer. In any State the demands of each citizen

for the fulfilment of his best self must be taken as of equal worth; and the utility of a

right is therefore its value to all the members of the State. The rights, for instance, of

freedom of speech does not mean for those in authority, or for members of some

special church or class. Freedom of speech is a right either equally applicable to all

citizens without distinction or not applicable at all. D

These remarks are no more applicable in political philosophy than they are in human

rights jurisprudence. The matter is brought into focus if we substitute the right to

participate in the government of one's country for the freedom of speech. E The

proposition would then be that the right to participate in the government of one's

country is not reserved for those in authority, or for members of some special class or

groups, but it is a right either equally applicable to all citizens F without distinction

or not applicable at all. This utilitarian factor is writ large in art 21(1) for it speaks of

'every citizen' being entitled to participate in the government of his country. It could

easily have said 'Every member of a political party ...,' but it G did not, and this

could not have been without cause. it will be recalled, indeed, that the provision

existed in its present terms ever since the one-party era. At that time all political

activity had to be conducted under the auspices and control of Chama Cha

Mapinduzi, and it could have been argued that this left no room for H independent

candidates. It is certainly this notion which was at the base of Mr. Mussa's submission

to the effect that the amendments did not take away the right for independent

candidates for such right never existed before. The argument is no doubt attractive,

but, at least with effect from 1 July, 1992, art 21(1) has to be read in a multi-party and

non-party context. That is what I can gather from art 20(4) - previously art 20(2) -

which was deliberately rephrased to accommodate both situations. It is I

1995 TLR p65

LUGAKINGIRA J

illogical for a law to provide that no person shall be compelled to belong to a A

political party and in the same breath to provide that no person shall run for office

except through a political party. If it were the intention of the Legislature to exclude

non-party citizens from participating in the government of their country, it could

easily have done so vide the same Eighth Constitutional Amendment Act by

removing the generality in art 21(1). B

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 C

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 D 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 E 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. F

When the framers of the Constitution declared the fundamental rights in Part III of

Chapter One thereof, they did not do so in vain, it must have been with the intention

that these rights should be exercisable. It is therefore established that the provisions

of the Constitution should always be given a generous and purposive G construction.

In AG of Gambia v Jobe (34), at 565, Lord Diplock said:

'A constitution and in particular that part of it which protects and entrenches

fundamental rights and freedoms to which all persons in the State are to be entitled, is

to be given a generous and purposive construction. H

This echoes what was said earlier in British Coal Corporation v The King (35), to the

effect that in interpreting a consistitutent or organic statute the construction most

beneficial to widest possible amplitude of its powers must be adopted. And not much

later, in I

1995 TLR p66

LUGAKINGIRA J

A James v Commonwealth of Australia (36), at 614 Lord Wright, MR said:

'It is true that a Constitution must not be construed in any narrow and

pedantic sense. The words used are necessarily general, and their full import and true

meaning can often be B appreciated when considered, as the years go on, in relative

to the vicissitudes of fact which from time to time emerge. It is not that the meaning

of the word changes, but the changing circumstances illustrate and illuminate the full

import of the meaning.'

C This approach is directed principally at resolving difficulties which may be

inherent in a single provision. The strategy, according to these authorities, is to

approach the provision generously and liberally particularly where it enacts a

fundamental right. The case before me takes us a stage further. What happens D

when a provision of the constitution enacting a 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 an integrated whole, no one particular provision destroying the

other but each sustaining the other; see Muhammed Nawaz Sharif E (18) at 601. If

the balancing act should succeed, the Court is enjoined to give effect to all the

contending 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 their application would result in gross injustice. Chitaley, at 716, renders

the position thus: F

'. . . it must be remembered that the operation of any fundamental right may

be excluded by any other Article of the constitution or may be subject to an exception

laid down in some other G Article. In such cases it is the duty of the Court to

construe the different Articles in the Constitution in such a way as to harmonise them

and try to give effect to all the Articles as far as possible and it is only if such

reconciliation is not possible, one of the conflicting Articles will have to yield to the

other.' H

These propositions are by no means novel but are well known in common law

jurisdictions. They rest, above all, on the realisation that it is the fundamental rights

which are fundamental and not the restrictions. In the case of Sturat v Crowninshield

(37), at 550, Chief Justice Marshall of the Supreme Court of the United States said: I

1995 TLR p67

LUGAKINGIRA J

'Although the spirit of an instrument, especially a Constitution, is to be

respected not the less A than its letter, yet the spirit is to be collected chiefly from its

words. It would be dangerous in the extreme to infer from extrinsic circumstances

that a case for which the words of an instrument expressly provide shall be exempt

from its operation. Where words conflict with each other, where the different clauses

of an instrument bear upon each other and would be inconsistent unless the natural

and common words be varied, construction becomes B necessary, and a departure

from the obvious meaning of words is justifiable. But if in any case the plain meaning

of a provision, not contradicted by any other provision in the same instrument is to be

disregarded, because we believe the framers of that instrument could not intend what

they say, it must be one in which the absurdity and injustice of applying the C

provision to the case would be so monstrous that all mankind would, without

hesitation, unite in rejecting the application.'

In the instant petition, the following factors emerge. First, art 39(c) and allied D

amendments are restrictions on the exercise of a fundamental right and not

fundamental in themselves. It is the fundamental rights, but not their restrictions,

that this Court is enjoined to guard jealously. Secondly, the scheme of our E

Constitution contemplates the full exercise of the fundamental rights enacted therein

save as they may be limited in terms of the provisions of art 30(2) and art 31(1).

Although the amendments pass the test of validity by virtue of the very wide

definition of 'alteration' in art 98(2), it is only tenuously that they come within the

ambit of art 30(2). Thirdly, the literal application of the amendments could lead to F

monstrous and nationally injurious results. It is believed that there are between three

and four million people in this country who subscribe to some political party, leaving

well over twenty millions a free decision in the government of their country is unjust,

monstrous and potentially calamitous. Fourth, it must be said that any G talk of

'parties' at this juncture in the country's history cannot be serious. Apart from Chama

cha Mapinduzi whose presence is all pervasive, the rest exist more in name than in

practice. The amendments are therefore capable of being abused H to confine the

right of governing into the hands of members of a class and to render illusory the

emergence of a truly democratic society. I do not wish to believe that that was the

intention of the Legislature. Finally, art 21(1) can in fact operate alongside art 39 and

allied amendments, without the latter's exclusionary properties, there being nothing

strange in having party and independent candidates in any election. I

1995 TLR p68

LUGAKINGIRA J

A 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

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. B

We now come to the sixth and final issue. A declaration is sought to the effect that it

is unconstitutional for the President to appoint Zanzibaris to head non-union

ministries and departments on the Mainland. This matter invites a bit of the union's

history. When Tanganyika and Zanzibar united in 1964 the Constitution of the C

former was adopted as the interim Constitution of the United Republic, modified as to

provide for a separate government for Zanzibar in matters other than those reserved

to the union Government. At the same time the Government of D Tanganyika was

abolished. The union operated under interim constitutions until the promulgation of

the 1977 Constitution.

Article 4(3) of the Constitution provides for the division of governmental functions

on the basis of union and non-union matters. Authority in respect of all union E

matters as well as non-union matters in and for the Mainland is vested in the Union

Government by art 34(1). Likewise all executive power of the United Republic with

respect of union matters and with respect to non-union matters in and for the

Mainland is vested in the President. He may exercise that power either directly or F

through delegation to other persons holding office in the services of the United

Republic. The President is also empowered to constitute and abolish offices and,

pursuant to the provisions of art 36(2), he has power to appoint persons to offices in

the public services of the United Republic subject to the other provisions of the

Constitution. In the exercise of the functions of his office the President has G

unfettered discretion apart from complying with the provisions of the Constitution

and the law. Article 55(1) additionally empowers the President to appoint Ministers

who 'shall be responsible for such offices as the President may from time to time . . .

establish.' He also has power to appoint Regional Commissioners for regions in the

Mainland. Zanzibar retains its internal autonomy in respect of non-union H matters

falling on that side. It was argued by Mr Mbezi that the structure of the Constitution

points to a dual role for the Union Government, i.e. as a Government responsible for

Uniion Matters and as a Government responsible for non-Union Matters for and in I

1995 TLR p69

LUGAKINGIRA J

the Mainland. He also submitted that the division of union from non-union matters

A could not have been done without a purpose. In his view non-union matters on the

Mainland have to be run by Mainlanders, and the fact that they are constitutionally

placed under the Union Government does not amount to their unionisation. He

therefore thinks that the appointment of Zanzibaris to run these matters offends art

4(3). Mr Mussa responded by pointing out that no provision in B the Constitution

compelled the President not to appoint Zanzibaris to such positions and that it would

actually be discriminatory if he did not do so. In his view the exercise of the power of

appointment was a matter of policy but not one founded on the Constitution. C

The issue of Zanzibaris in 'Mainland' ministries is presently a matter of considerable

interest, and seems to derive more drive from the polarised political situation which

culminated in the ill-fated parliamentary motion for a government of Tanganyika.

But sentiments apart, one would certainly wish to know the jurisdical D position of

non-union matters in and for the Mainland. The dualism factor asserted by Mr Mbezi

was recognised and articulated by the Court of Appeal in Haji v Nungu & Anor (38),

where Chief Justice Nyalali further stated (at p 231) that in the basic structure of the

Constitution there are 'matters which concern E exclusively that area which before

the Union constituted what was then known as Tanganyika ...' He went on to say that

'These matters under the scheme of the Constitution fall under the exclusive domain

of the Government of the United Republic. The Revolutionary Government of

Zanzibar has no jurisdiction over F these matters.' Of course that case was concerned

with a different matter - the jurisdiction of the High Court of the United Republic in

election petitions - yet, even with that reference to the exclusive domain of the

Government of the United Republic over Tanganyika matters, I cannot read a

suggestion of the unionization G of those matters. There are various types of

constitutions which are classified as federal and ours could carry that appellation in

the absence of a standard or ideal type of a federal constitution. It is not uncommon

for such constitutions to enumerate the areas reserved to the federated states, leaving

the rest to the federal or central government. The founders of our Union could easily

have done H that. They could have enumerated the spheres in which the Zanzibar

Government would exercise power and leave the rest to the Union Government. In

that case the philosophy of changu, changu; chako, chetu (mine is mine; yours is ours)

would have made considerable sense, for everything in and I

1995 TLR p70

LUGAKINGIRA J

A for the Mainland would have then been a union matter. But that was carefully

avoided. Instead the Constitution enumerates union matters only and expressly

declares the rest to be non-union; and this is so, according to art 4(3), 'For the purpose

of the more efficient discharge of public affairs . . . and for the effective division of

functions in relation to those affairs . . .' I think, with respect, there is B reason to

insist on the significance of the division. It occurs to me, that the fact of the nonunion

matters on the Mainland side being under the Union Government does not

derogate from their character. They remain 'matters which concern C exclusively

that area which before the Union constituted what was then known as Tanganyika,

and is presently referred to under the constitution as Tanzania Mainland.' to quote

the Chief Justice again. And since the Constitution also recognises the necessity 'for

the effective division of functions' in the discharge of public affairs in the United

Republic, the appointment of Zanzibaris to positions of authority in non-union

matters in the Mainland could have the effect of blurring that division. D

That said, however, it is difficult to draw the inference of unconstitutionality, which

the Court was called upon to draw, in relation to those appointments. The E

provisions to which I have referred, notably art 36(2) and art 55(1), do not limit the

President in his choice of officers or Ministers or in their disposition. The furthest we

can go is to fall back to the words 'subject to the other provisions of this F

Constitution' in art 36(2) and this would lead to the division of union and non-union

matters in art 4(3). It can then be suggested that to keep the division effective there is

an implied invitation to keep Tanganyika matters Tanganyikan. A breach of the

Constitution, however, is such a grave and serious affair that it cannot be arrived at by

mere inferences, however attractive and I apprehend that this would require proof

beyond reasonable doubt. I have therefore not found myself in a position to make the

declaration sought and I desist from doing so. G

Finally, each party prayed for costs. I cannot find my way to award any. In the first

place the record suggests that this was a legal aid case and I don't quite see how the

question of costs arises. Additionally, I think this was a balanced case where both

sides won and lost. The parties will therefore bear their respective costs. H

1995 TLR p71

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