MWALIMU PAUL JOHN MHOZYA v ATTORNEY GENERAL (No. 1) 1996 TLR 130 (HC)

MWALIMU PAUL JOHN MHOZYA v ATTORNEY GENERAL (No. 1) 1996 TLR 130 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Samatta JK

E

CIVIL CASE No. 206 of 1993

25 April 1994 F

Flynote

Constitutional law -- Separation of Powers -- Purpose and function of the doctrine of

separation of powers.

Constitutional Law -- Removal or suspension of the President from office -- Whether

the President G may be removed or suspended from office by the High Court --

Sections 42(1) and 46A of the Constitution of Tanzania

-Headnote

In this application the applicant sought an interlocutory injunction restraining the

President of the United Republic of Tanzania from discharging his functions pending

H determination of the main cae in which the applicant sought orders of declaration

that: (a)the Constitution of the United Republic had been violated; (b) the President

was guilty of having allowed or enabled the said violation; and (c) the continued

exercise of presidential powers by President Ali Hassan Mwinyi was unconstitutional

and a potential I danger to the well being of the country and its citizens. The

Attorney General raised a preliminary objection

1996 TLR p131

against the application on the grounds that the affidavit in support of the application

was A fatally defective, and that the Court had no jurisdiction to make the orders

sought:

Held:

(i) The concern of the Court is substance rather than form and its function

is to get to the bottom of the dispute and determine the real issues in it and; for that

B purpose, the Court may allow steps to be taken to cure any defects in a pleading or

an affidavit provided that the other party is not prejudiced thereby;

(ii) The affidavit in this application did not strictly comply with the

provisions of the Civil Procedure Code 1966, but the Court could grant leave to the

applicant to cure the defects in the affidavit; C

(iii) The principle that the functions of one branch of government should

not encroach on the functions of another branch is an important one to ensure that

the governing of a state is executed smoothly and peacefully;

(iv) As s 42(3)(d) of the Constitution states that the President shall be in

office until D he ceases to hold office `in accordance with the provisions of' the

Constitution, and s 46A of the Constitution lays down the procedure by which the

legislature may remove or suspend the President from office, any attempt to remove

or suspend the President in a manner other than that laid down in the Constitution

would not be legal; E

(v) No provision of the Constitution or any other law authorises the High

Court to hold that the President can be removed or suspended from office by a body

other than that which the Constitution specifically provides for;

(vi) This Court has no jurisdiction to issue the order of injunction sought

against the President. F

Case Information

Application for temporary injunction rejected

Cases referred to:

1. Hornal v Neyberger Products Ltd [1956] 3 All ER 970

2. Attorney General of the Gambia v Momodou Jobe [1984] 3 WLR 174

G

3 re: Coles and Ravenshear [1970] 1 KB 1

[zJDz]Judgment

Samatta JK: This is an application for an interlocutory injunction restraining His H

Excellency Ali Hassan Mwinyi, the President of the United Republic, from

discharging presidential functions pending the determination of Civil Case No 206 of

1993, filed in this Court, in which the applicant seeks, inter alia, the following

declarations:

I (1) The Constitution of the United Republic of Tanzania (herein-

1996 TLR p132

SAMATTA JK

A after referred to as the Constitution) was violated by Zanzibar joining

an organisation known as Islamic Conference Organisation.

(2) The President is guilty of allowing or enabling that violation to take

place and is therefore personally answerable for the violation. B

(3) His Excellency Ali Hassan Mwinyi's continued exercise of presidential

powers is unconstitutional as well as a potential danger to the well-being of the

United Republic and its citizens.

The application has been strenuously opposed by Mr Salula, Senior State Attorney, on

C behalf of the respondent. Although he is a teacher by profession, the applicant,

who appeared in person at the hearing, has argued the application, including legal

issues, with much confidence.

At the hearing Mr Salula raised a preliminary objection to the application. He based

the D objection on three principal grounds. These are:

1. The application is incompetent because the affidavit sworn and filed by

the E applicant in support of it is fatally defective in that it does not comply with the

provisions of Order 19 Rule 3(1) of the Civil Procedure Code.

2. The application contravenes s 46A of the Constitution in that it

attempts to move the court to do an act in respect of which Parliament has provided a

F special and entirely different procedure. In other words, this Court does not have

jurisdiction to make the order sought by the applicant.

3. The provisions of s 11(2) of the Government Proceedings Act, 1967,

and those of Order 37 Rule 2 of Civil Procedure Code as amended by the Govt G

Proceedings (Procedure) Rules, 1968 (Govt Notice No 376 of 1968) prohibit the

granting of the kind of injunction sought in this application.

In performing my task in the instant application I must make it perfectly clear that I

bear H in mind, inter alia, the following principles:

1. A court will not be deterred from a conclusion because of regret at its

consequences: Hornal v Neuberger Products Ltd (1) at 978.

I 2. It is wrong for a court of law to be anxious or to appear to be anxious to

avoid treading on executive toes.

1996 TLR p133

SAMATTA JK

A 3. A constitution is a living instrument which must be construed in the

light of present day conditions. The complexities of our society must be taken into

account in interpreting it. A workable constitution is a priceless asset to any country.

4. A constitution should be given a generous and purposive

construction:Attorney-General of the Gambia v Momodou Jobe (2). B

Respect must, of course, be paid to the language used in the instrument.

5. The balance of power between the three branches of government,

namely, the executive, the legislature and the judiciary, and the relationship of the

courts to C the other two branches must be carefully maintained. Any statutory

alteration of that balance must be in unmistakable terms. One branch of government

should not usurp the powers of another branch.

6. The notion, apparently harboured by some people in this country, that

the D President of the United Republic is above the law is subversive of the

Constitution and the laws. All Government leaders, including the President, are, like

the humblest citizen, bound to comply with the laws of this country. The maxim

`The King can do no wrong' has no place in our law even if the word `President' is

substituted for the word `King'. Everyone and every institution or E organisation in

this country is enjoined to pay respect to the principle of supremacy of the law, see s

26(1) of the Constitution.

7. Flexibility in the application of procedural law is a desirable thing, for

it assists to F ensure that at the end of the day justice triumphs. When it comes to

the issue of compliance with rules of procedures the instinct for strictness should,

where appropriate, be subdued. Substance rather than form should be the courts'

primary concern. G

Having stated the above principles, I turn now to consider Mr Salula's preliminary

objection. I propose to start with the argument concerning the applicant's affidavit.

As will be recalled, it was the learned Senior State Attorney's contention that the

affidavit is defective for non-compliance with the provisions of Order 19 Rule 3(1) of

the Civil H Procedure Code. Order 19 Rule 3(1) provides:

`3.-(1) Affidavits shall be confined to such facts as the deponent is able of his

knowledge to prove, except on interlocutory applications, on which statements of his

belief may be admitted: I

Provided that the grounds thereof are stated'.

1996 TLR p134

SAMATTA JK

It cannot be argued, and the applicant, if I understood him correctly as I believe I did,

did A not venture to argue, that the supporting affidavit in this application strictly

complied with the above quoted provisions of the Civil Procedure Code. I would not,

on that ground alone, however, drive the applicant from the judgment seat in this

application. It is the B function of a court of justice to try to get to the bottom of the

real dispute and to determine what are the real issues in the matter before it provided,

of course, no party can be prejudiced. As already remarked, substance rather than

form should be the courts' primary concern. If legal steps can be taken to cure any

defects in a pleading or C an affidavit, without substantially prejudicing with the

opposite party, a court of justice should grant leave to the party to take these remedial

steps, if he so wishes. I would call attention to the elaborated words of Lord Collins

MR, in Re Coles and Ravenshear (3)

D `Although a court cannot conduct its business without a code of procedure,

the relation of the rules of practice to the work of justice is intended to be that of

handmaid rather than mistress; and the court ought not to be so far bound and tied by

the rules, which are after all only intended as general rules of procedure, as to be

compelled to do what will cause injustice in the particular case'. E

If I will be satisfied that this court has jurisdiction to grant the relief sought by the

applicant, I will be prepared to grant leave to him to take remedial stops. I now turn,

therefore, to the question whether this court has that jurisdiction. F

Mr Salula's submission on this point was that, as the Constitution contains specific

provisions governing how and under what circumstances a person holding the office

of the President of the United Republic will cease, temporarily or otherwise, to hold

that office, the suspension or removal of such a person from office is not by way of

judicial G process. In support of that submission the learned Senior State Attorney

cited s 42(2) and (3) of the Constitution as read with s 46A of the same legislation.

Countering that argument, the applicant contended, among other things, that s 26(2),

30(3) and 108(2) of the Constitution, whether read together or separately, empower

this court to grant the H temporary injunction sought. Section 42 (2) and (3) of the

Constitution reads as follows:

`42-(1) ...

(2) Unless he sooner resigns or dies, a person elected as President shall, subject

to subsection (3) I of this section, hold office for a term of five years from the date on

which he is elected President.

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SAMATTA JK

A (3) A person elected President shall hold the office of President until:

(a) the day when his successor in office takes the oath of office; or

(b) the date when he dies in office; or

(c) the day of his resignation from that office; or

(d) he ceases to hold the office of President in accordance with the

provisions of this constitution.' B

Section 46A provides as follows:

`46A.-(1) Notwithstanding the provisions of article 46 of this Constitution the

National Assembly may C pass a resolution to remove the President from office if a

motion to impeach the President is moved and passed in accordance with the

provisions of this Article.

(2) Subject to the other provisions of this article, no motion to impeach the

President shall be moved save only if it is alleged that the President- D

(a) has committed acts which generally violate the Constitution or the law

concerning the ethics of public leaders;

(b) has committed acts which contravene the conditions concerning the

registration of political parties specified in article 20(2) of this Constitution; or

E (c) has conducted himself in a manner which lowers the esteem of the

office of President of the United Republic, and no such motion shall be moved within

twenty months from the time when a similar motion was previously moved and

rejected by the National Assembly.

(3) The National assembly shall not pass a motion to impeach the President

save only if- F

(a) a written notice signed and supported by not less the twenty per cent

of all the member of Parliament is submitted to the Speaker thirty days prior to the

sitting at which such motion is intended to be moved in the National Assembly,

specifying the wrong committed by the G president and proposing that a Special

Committee of Inquiry be constituted to inquire into the charges brought against the

President.

(b) at any time after the Speaker receives the notice duly signed by the

Member of Parliament and satisfies himself that the provisions of the Constitution for

the moving of the motion have been H complied with, to vote on the motion to

constitute a Special Committee of Inquiry, and if it is supported by not less than two

thirds of all the Members of Parliament, the Speaker shall announce the names of the

members of the Special Committee of Inquiry I

(4) The Special Committee of Inquiry for the purpose of this article shall

consist of the following members, that is to say-

1996 TLR p136

SAMATTA JK

A (a) the Chief Justice of the United Republic who shall be the Chairman of

the Committee;

(b) the Chief Justice of Tanzania Zanzibar; and

(c) seven members appointed by the Speaker in accordance with the

Standing Orders of the National Assembly and taking into account the proportional

representation amongst the B political parties represented in the National Assembly.

(5) In the event that the National Assembly passes the motion to constitute a

Special Committee of Inquiry, the President shall be deemed to be out of office, and

the duties and functions of the office of president shall be discharged in accordance

with the provisions of article 37(3) of this Constitution C until the Speaker shall

inform the President about the resolution of the National Assembly in connection

with the charges brought against him.

(6) Within seven days after the Special Committee of Inquiry is constituted, it

shall sit, inquire into and analyse the charges preferred against the President,

including affording the president the opportunity D to be heard in his defence in

accordance with the procedure prescribed by the Standing Orders of the National

Assembly.

(7) As soon as possible and in any event within a period of not more than

ninety days, the Special Committee of Inquiry shall submit its report to the Speaker.

E (8) After the Speaker receives the report of the Special Committee of Inquiry,

the report shall be tabled before the National Assembly in accordance with the

procedure prescribed by the Standing Orders of the National Assembly.

(9) After the report of the Special Committee of Inquiry is submitted pursuant

to sub-article (8) the F National Assembly shall discuss the report and shall afford

the President the opportunity to be heard, and then by the votes of not less than two

thirds majority of all the Members of Parliament, the National Assembly shall pass a

resolution either that the charges against the President have been proved and that he

is unworthy of continuing to hold the office of President, or that the charges have not

been proved.

(10) In the event the National Assembly passes a resolution that the charges

against the President have been proved and that he is unworthy of continuing to hold

the office of President, the Speaker shall inform the President and the Chairman of

the Electoral Commission about such resolution of the National Assembly,

whereupon the President shall be obliged to resign before the expiry of three days

from the day the National Assembly passed the resolution.

(11) In the event the President ceases to hold the office of President by reason

of the charges against him being proved he shall not be entitled to receive any

payment by way of pension or to receive any benefits or other privileges which he

has under the Constitution or any other law enacted by Parliament.'

1996 TLR p137

SAMATTA JK

The sections of the Constitution which were the main-stay of the applicant's

contention A that the Court has the jurisdiction to make an injunction order which

has the effect of suspending the President of the United Republic from office read as

follows:

`26(2) B

`Every person is entitled, subject to the procedure provided by the law, to

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

`30(4) C

`Subject to the other provisions of this Constitution, the High Court shall have

and may exercise original jurisdiction to hear and determine any matter brought

before it in pursuance of this section; and an Act of Parliament may make provision

with respect to-

(a) the procedure regulating the institution of proceedings under this

section; D

(b) the powers, practice and procedure of the High Court in relation to the

hearing of proceedings instituted under this section;

(c) ensuring the more efficient exercise of the powers of the High Court,

the protection and enforcement of the basic rights, freedom and duties in accordance

with this Constitution.' E

`108(2)

`Where it is not expressly stated in this Constitution or in any other

legislation that any specific matter shall be first heard and determined in a certain

court, the High Court shall have jurisdiction to hear and determine that matter. In

addition, the High Court shall have jurisdiction in respect of any other F matter

which, in accordance with legal traditions and conventional practices obtaining is

ordinarily to be heard and determined by the High Court; save that, the provisions of

this section shall apply subject to the jurisdiction of the Court of Appeal of Tanzania

as provided for in this Constitution or in any other legislation'. G

I have given careful and earnest consideration to the competing arguments addressed

to me on the issue of jurisdiction and in the end I am satisfied that Mr Salula's

argument is sound in law. The principle that the functions of one branch of

government should not H encroach on the functions of another branch is a very

important principle, one of the principles which ensure that the task of governing a

State is executed smoothly and peacefully.

It seems to me to be an incontrovertible proposition of law, having regard to the use

of I the words `in accordance with the provisions of this constitution' in s 42(3)(d) of

the Constitution, that

1996 TLR p138

SAMATTA JK

removal or suspension from office of the President of the United Republic is the A

legislature's exclusive prerogative. Since s 46A of Constitution lays down the

procedure to be used in removing or suspending the President, the attempt to remove

or suspend him by a procedure other than that would not be legal. If Parliament had

intended this B Court to exercise concurrent jurisdiction of dealing with politicoconstitutional

offences it could easily have said so when enacting s 46A of the

Constitution. The omission to provide such a provision in the constitution would

appear to strongly suggest that Parliament did not want judicial process to be used in

removing or suspending the C President from office. It is not for this Court to say

whether or not that was a wise decision. None of the sections of the Constitution

cited by the applicant compels me to hold a different view. The right granted by s

26(2) to institute proceedings for the protection of the Constitution and legality

cannot, in my considered opinion, be regarded D as providing an authority to this

Court to grant a relief which, according to the Constitution itself, is a remedy

available only through a parliamentary procedure. As regards s 30(4), the following

can be said. The subsection deals with the subject of limitations upon and the

enforcement and protection of basic rights and duties. No issue E concerning basic

rights arises in the instant application. With regard to enforcement of duties, it can be

said without inaccuracy, I think, that that matter does not authorise the court to hold

that the President can be removed or suspended from office in a manner other than

that which the Constitution has specifically provided for. As for s 108(2), let F me

say without ambiguity that I know of no legal traditions or conventional practices

which authorise this Court to try alleged politico-constitutional offences, and the

applicant cited none in his argument. It may well be (and I say no more than that, G

because the issue is not before me at this stage of the case) that the court has

jurisdiction to give a declaratory judgment as to the commission or otherwise of such

offences, but I will, I hope, be forgiven for stating the obvious, namely, that a

temporary injunction and a declaratory judgment are two different things.

But under the common law does this court not have the jurisdiction to grant the H

injunction sought by the applicant? I can, I think, answer that question very briefly.

Under the common law (the Crown Proceedings Act, 1948, reaffirmed the rule) no

injunction can lie against the Crown: see SA de Smith: Judicial Review Administrative

Action, 2nd I ed pp 461--462; Halsbury's Laws of England, 4th ed para 168 p 161. It

follows from this position that under that

1996 TLR p139

law this court could not have jurisdiction to issue an injunction against the President.

In A any case, any rule of common law granting this court such a jurisdiction would,

by necessary implication, have been abolished in this country by the provisions of s

42 and 46A of the Constitution.

While paying due respect to the applicant's gallantry, I have, for the reasons I have

given, B reached a clear conclusion that this Court lacks jurisdiction to grant the

relief sought by the applicant in this application. This conclusion renders it

unnecessary to decide whether, as was strenuously contended by Mr Salula, the

provisions of s 11(2) of the Government Proceedings Act, 1967, and these of Order 37

Rule 2 of the Civil Procedure C Code as amended by the Government Proceedings

(Procedure) Rules, 1968, stand in the applicant's path in the instant application.

The point taken in limine succeeds and the application for interlocutory injunction is

rejected. D

1996 TLR p139

E