joran lwehabura bashange vs the chairman of national electoral commission and another 2023 tzhc 16367 29 march 2023

joran lwehabura bashange vs the chairman of national electoral commission and another 2023 tzhc 16367 29 march 2023

The impugned provisions are unconstitutional because they curtail the right of citizens to participate in governance through representatives freely elected by the people, as guaranteed by Article 21(1) and (2) of the Constitution. The provisions introduce a category of members of parliament and councilors who are deemed elected without a vote, which is not provided for in the Constitution. The respondents failed to justify the limitation under Article 30(2) or show that the provisions meet the proportionality test. Therefore, the impugned provisions are null and void and are struck out from the statute books.

Citation
joran lwehabura bashange vs the chairman of national electoral commission and another 2023 tzhc 16367 29 march 2023
Parties
Petitioner: Joran Lwehabura Bashange; 1st Respondent: The Chairman of National Electoral Commission; 2nd Respondent: The Attorney General
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
29 March 2023
Procedural Posture
Miscellaneous Civil Cause (constitutional Petition) / Judgment
Outcome
Petition allowed. Impugned provisions declared unconstitutional, null and void.
Legal Topics
Right to Vote, Constitutionality of Election Laws, Discrimination in Electoral Processes, Interpretation of Constitutional Rights
Source Language
English
Constitutional Law Election Law Human Rights Law Right to Vote Constitutionality of Election Laws Discrimination in Electoral Processes Interpretation of Constitutional Rights

Case Brief

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Parties

Joran Lwehabura Bashange

Petitioner

The Chairman of National Electoral Commission

1st Respondent

The Attorney General

2nd Respondent

Procedural Posture

Miscellaneous Civil Cause (constitutional Petition) / Judgment

Legal Issues

  1. 1 Whether section 44 of the National Elections Act, Cap. 343 and sections 45(2) and 13(7) of the Local Government (Elections) Act, Cap. 292 are unconstitutional for allowing unopposed candidates to be declared elected without a vote, thereby violating the right to vote under Article 21(1) and (2) of the Constitution.

Ratio Decidendi

The impugned provisions are unconstitutional because they curtail the right of citizens to participate in governance through representatives freely elected by the people, as guaranteed by Article 21(1) and (2) of the Constitution. The provisions introduce a category of members of parliament and councilors who are deemed elected without a vote, which is not provided for in the Constitution. The respondents failed to justify the limitation under Article 30(2) or show that the provisions meet the proportionality test. Therefore, the impugned provisions are null and void and are struck out from the statute books.

Court Disposition

Petition allowed. Impugned provisions declared unconstitutional, null and void.

Orders

  • Section 44 of the National Elections Act, Cap. 343 and sections 45(2) and 13(7) of the Local Government (Elections) Act, Cap. 292 are declared unconstitutional, null and void for offending Article 21(1) and (2) of the Constitution.
  • The impugned provisions are struck out from the statute books.