NA TZHC Dar es Salaam1

IN THE IDGH COURT OF TANZANIA (DAR ES SALAAM MAIN REGISTRY)

AT DAR ES SALAAM MISC. CIVIL CAUSE NO.10 OF 2005 MANENTO J.K, MASSATI J, MIHAYO J.: CHRISTOPHER MTIKILA ..................... .... PETITIONER

VERSUS THE ATTORENY GENERAL .......................RESPONDENT

JUDGMENT , _ ·~ Date of Hearing - 6/2/2006 ~D~ Date of Ruling-5/5/2006 I 0 "Jo MASSATI,J: The Petitioner, REV. CHRISTOPHER MTIKILA, is a very determined man. In 1993 he filed a petition in the High Court at Dodoma, to seek among other reliefs, a declaration that the citizens of this country have a right to contest for the posts of president, member of parliament and local government councillor without being forced to join any political party. The High Court decided in his favour on this aspect. The government filed an appeal against that finding, but later withdrew the appeal and sent a bill in parliament to legislate in anticipation against that decision of the court. As we shall shortly see below that law is the subject matter of the present proceedings. It could have been assun1ed that the petitioner had a motive for doing so in 1993, because by then he was still fighting to register his 2 political party, the Democratic Party, as illustrated by his earlier } petition. Having secured the registration of his party, the petitioner who describes himself as the chairman of the Democratic Party has come again to this Court for the following orders: (a) A declaration that the Constitutional amendment to Articles 39 and 67 of the Constitution of the United Republic of Tanzania as introduced by amendments contained in Act No. 34 of 1994 is unconstitutional. (b) A declaration that

the petitioner has a constitutional right under Article 2 (I) of the Constitution of the United Republic of Tanzania to contest for the post of the president of the United Republic of Tanzania and/or the seat of a member ofparliament of the United Republic of Tanzania as a private candidate. (c) Costs of this petition be borne by the Respondent. (d) Any other remedy and/or relief the honourable Court will deem equitable to grant. The gravamen of the Petitioner's complaints are couched in paragraphs 7, 8 and 9 of his petition which is to say: first, that the said constitutional amendments are violative of the Basic Human Rights as 3 proclaimed in Article 21 (1) of the Constitution, two, that the said ' . k,, constitutional amendments are violative of Article 9 (a) and (f) of the Constitution, three, that the said amendments are violative of Article 20 (4) of the Constitution, and fourthly, the said constitutional amendments are a violation of International Covenants on Human Rights to which the United Republic is a party. According to the petition the effect of all these amendments is that an ordinary Tanzanian is forced to join a political party in order to participate in government affairs in order to be elected to any of the posts of president or member of parliament. The Respondent Attorney General resists the petition. The kernel of his objection is contained in paragraph 4

of his Answer to the Amended petition. It is to this effect: " ... the enactment ofAct No. 34 of 1994 which was coupled with Constitutional amendments of the said Article is valid, legally done in a general way, for a specific public good and not in violation of any basic human rights. Further to that the Respondent states that the said constitutional amendments were not discriminatory at all as the law is applicable to all people and all candidates who wish to contest in elections." In short, the bone of contention between the parties in this petition is whether the amendment to the Constitution introduced by Act No. 34 of 1994 is constitutional. 4 Although the Court did not formulate the issues to be tried the petitioner has framed and both parties have fully argued on the following issues: (i) Whether the sections, namely Articles 39 (]) (c) and 39 (2) and Article 67 (b) and 67 (2) (e) are unconstitutional. (ii) Whether the said sections meet the proportionality test? (iii) Whether the said amendment introduced by Act No. 34 of 1994. contravene the International Instruments signed ratified and deposited by the Government of the United Republic of Tanzania? We believe that no injustice will be done if we decide the petition on the basis of those issues even if we did not frame them at the beginning of the hearing of this petition, which was effectively in the form of written

submissions. Counsel were also accorded opportunity to elaborate on their written submissions orally. Mr. Rweyongeza and Mr. Mpoki learned Counsel appeared for the petitioner. Mr. Mwaimu and Ms Ndunguru appeared for the Respondent. It was the petitioner's submission that the amendments to Article 39 and 67 introduced by Act 34 of 1994 restricting the right to contest in elections for president and member of parliament to 5 political party candidates only are violative of the Basic Rights ~ contained in Article 21 (I) of the Constitution, which gives a citizen, the right of association, and also violative of Article 20 (4) of the Constitution which prohibits the enactment of laws forcing people to join any society or corporation. Mr. Rweyongeza and Mr. Mpoki, submitted that the said provisions are a limitation for citizens who desire to contest for those political posts. They submit that such provision is discriminatory because it tends to discriminate citizens who are members of political parties against those who are not members in contesting for political posts. The learned Counsel quoted several principles laid down by Lugakingira J (as he then was) in REV. MTIKILA VS ATTORNEY GENERAL (1995] TLR.

31. The learned Counsel further submitted that smce REV. MTIKILA VS ATTORNEY GENERAL (Supra) upheld the fundamental rights contained in the Constitution, the legislation of Act 34 of 1994 was void, on the score of repugnancy. They cited from SYLVIA SNOWSIS' book JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION (Universal Law Publishing Co Pot Ltd, 2nd Reprint 1996, wherein the cases of LESSEE vs. DORRANCE and KAMPER vs. HEWKINS were referred to. Submitting on the second issue which is whether the said provisions meet the proportionality test, Mr. Rweyongeza and Mr. Mpoki, submitted, first, that it was incumbent upon the Respondents to prove that the challenged legislation is within the purview of the exception. For that principle the learned Counsel relied on two Indian 6 cases nan1ely SAPIDR AHMED VS STATE OF UTRAH • PRADESH [1954] AIR SC 729 and DEANA VS UNION [1984] I SCRI. Coming closer at home, the learned Counsel cited the Tanzania Court of Appeal decision in KUKUTIA OLE PUMBUN &

ANOTHER VS ATTORNEY GENERAL AND ANOTHER [1993] TLR. 159, where it was held that for a legislation to pass the proportionality test, it must be shown that it is not arbitrary, and that the limitation is reasonably necessary to achieve a legitimate objective. They concluded on this issue that the impugned law does not meet the proportionality test. Lastly, Mr. Rweyongeza and Mr. Mpoki, submitted that the Act violated the Universal Declaration of Human Rights and the African Charter on Human and Peoples' Rights. The said International Conventions must be taken into account in interpreting the Bills of Rights and Duties. For that statement, the learned Counsel relied on the Court of Appeal decision in DPP VS DAUDI PETE [1993] TLR.

22. In concluding their submission on the third issue, the learned Counsel for the petitioner said that in all its activities, the Constitution enjoins, the Government to adhere to the directives, principles of state policy, and this includes, in their duty to make laws. The learned Counsel therefore penned off by praying that the petition be allowed with costs. 7 .. Mr. Mwaimu, the learned Principal State Attorney and Ms. Ndunguru, learned State Attorney submitted on the first issue that the amendments to the Constitution were done within the powers of the legislature and that did not breach any provision of the constitution. For this, the learned state Counsel sought to rely on Article 98 (I) & 2 of the Constitution. They stated further that this position was also supported by Lugakingira J (as he then was) in REV. MTIKILA VS. ATTORNEY GENERAL (Supra). On the issue whether the amendments violated Article 21 (1) of the Constitution, the learned Counsel submitted that the amendments were done for a specific public good. They state in their submission: "The prohibition to individual contestants in general and local governments elections is one way to achieve representative . democracy. The constitution primarily aims at establishing and safeguarding a representative democracy which is the policy our country follows, it is a policy, which intends to safeguard peace, order

security and tranquility. " And further down, the learned State Attorneys submit: "The principle requzrmg an individual who is vying for leadership to contest through a political party is intended to ensure that whoever is made a candidate is well known to the people he wants to lead". 8 • These, the learned Counsel informed the Court, are the reasons why the Parliament decided to prohibit private candidacy. It was submitted for the Respondent that the question whether the restriction is reasonable must be decided on a case to case basis, citing decisions by the constitutional Court of South Africa (SOUTH AFRICA VS MAKWANYANE [1995] (3) S.A. 391 and another of S VS BHULWANA [1996] (1) S.A. 388 (cc). They submitted that those views are persuasive to our Courts. On the basis of those decisions Mr. Mwaimu, and Ms. Ndunguru submitted that the amendment was not only good for representative democracy but also for balancing the interests of the public at large. Responding to the question of discrimination, the learned state attorneys submitted that the amendment was meant for all those who aspire for leadership for the principle of equality does not require every one to be treated the same, but simply that people in the same position should be treated the same. Citing another South Africa case of PRESIDENT OF REPUBLIC OF SOUTH AFRICA VS HUGO [1997] 4 SA 1 CC cited in a book BILL OF

RIGHTS HANDBOOK. The learned Counsel submitted in the alternative that sometimes it is possible to justify discrimination as an exception if the purpose is to meet the ends of affirmative action. This is called the principle of "fair discrimination". 9 The learned state attorneys submitted further that Articles 21 ' (1 ), 39 (1) (2), 67 (I) (b) 2, and Article 20 (4) if read together, it will be noted that Article 21 ( 1) does not create any procedure. They submitted that the procedure for enfranchisement are found in the Elections Act and its Regulations. Therefore, it was not correct that there is no procedure for enfranchisement. They went on to submit that the fear that the provision could lead to abuse and confine the right to govern to a few and to render illusory the emergence of a truly democratic society, was unfounded and could not justify the declaration that the provision was unconstitutional. They submitted that on the contrary private candidates are uncertain, and unreliable and could easily abuse powers as they would not originate from the people. The learned Counsel then went on to distinguish the cases cited by the petitioner on the question of the proportionality test as all the cases cited dealt with the provisions in the statutes, whereas the present case deals with the Constitution itself which is a result of the will of the people. On the last issue, the

learned state attorneys submitted that while it is not disputed that Tanzania was a signatory to the Universal Declaration of Human Rights and ratified the African Charter for Human and Peoples Rights, these instruments have their limitations. They cited the example of Article 29 (2) of the Universal Declaration of Human Rights, which provides to the effect that the exercise of those rights shall be subject to such limitations as may be imposed by 10 law for the purpose of securing and recognition of the rights and • freedoms of others. On that premise, the learned Counsel submitted that since the Constitution advocates representative democracy, the amendments were necessary in order to maintain the requirements of morality, public order and general welfare of the people. And so the amendments were within the letter and spirit of the international instruments for Human Rights. At the end of the day the learned state attorneys prayed that the petition be dis1nissed with costs. In their rejoinder, Mr. Rweyongeza and Mr. Mpoki, learned Counsel have submitted that although the Parliament is given wide powers to amend constitutional provisions those powers are subject to the limits imposed by Article 30 (2) and 31 of the Constitution. For that proposition they relied on the reasoning of Lugakingira J ( as he then was) in REV. MTIKILA VS ATTORNEY GENERAL (Supra). Relying on the cases

of PETER NG'OMANGO VS KIWANGA AND ANOTHER [1993) TLR. 77, DPP VS DAUDI PETE [1993] TLR 22, and MBUSHUU VS REPUBLIC [1995] TLR 97. The learned Counsel submitted that the amendments sought to be impugned do not meet the proportionality test. They submitted that private candidacy was not inconsistent with representative democracy. Therefore private candidacy would not erode the principle of representative democracy. They submitted further that there were no adequate safeguards and control against abuse by those in authority in the exclusive political party system, and so it does not fall within one limb of the proportionally test. Referring to the South African case of MAKWANYANE (Supra), cited by the Respondent's Counsel, Mr. 11 Rweyongeza and Mr. Mpoki, submitted that persuasive as that decision, is, it is also authority for the need to widen the horizon of the principle of proportionality test, so that, it was desirable that the effect of a provision should not negate the content of the right in question, and that, the learned Counsel went on, was the essence of the decision in REV. MTIKILA VS. ATTORNEY GENERAL (Supra), in that the decision was made in order, not to negate the essential content of the right of an independent candidate. So, if anything, the South African case is a persuasive authority for widening the scope of the proportionality test. On the question whether or

not there was any procedure set by statute, the learned Counsel reminded the Court that the issue was settled by Lugakingira J (as he then was) in MTIKILA VS ATTORNEY GENERAL (Supra) in that by using the harmonization principle where the balancing act does not succeed courts should incline towards the realization of the fundamental rights even at the cost of disregarding the clear words of a provision if their application would result in gross injustice. On the authority and influence of international covenants, the learned Counsel for the petitioner reiterated their conviction on the weight to be attached to such instruments as illustrated in the DAUDI PETE case (Supra). The learned Counsel concluded their submission by praying that the petition be allowed. 12 It is now our tum to examine and analyse the rival arguments of the legal Counsel. But before we embark on this we think it is opportune for us to recapitulate the principles which will guide us in this task. These are those that govern the interpretation of the constitution and resolution of constitutional disputes. These principles have mostly been developed by case law, and they are numerous, but in the present case we intend to adopt only those which we consider to be relevant in the circumstances of the case. In Civil Appeal No. 64 of 2001 JULIUS ISHENGOMA

FRANCIS NDYANABO VS THE ATTORNEY GENERAL (Unreported) the Court of Appeal of Tanzania (Samatta C.J.) at pp. 17 - 18 laid down five principles. (1) The Constitution of the United Republic is a living instrument, having a soul and consciousness of its own. Courts must therefore endeavor to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purpose for which its makers framed it. (2) The provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions, but 13 grows and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must therefore be strictly construed. So Courts have a duty to interpret the Constitution so as to further fundamental Objectives and Directives of State policy. (3) Until the contrary is proved legislation is presumed to be constitutional. If possible a legislation should receive such a construction as will make it operative and not in operative. (4) Since there is a presumption of constitutionality of a legislation save where there is a clawback or exclusion· clause relied upon as a basis for constitutionality the onus is upon those who challenge the constitutionality of the legislation, they have to rebut that presumption. (5) Where those supporting a restriction on a fundamental right rely on a clawback or exclusion clause in doing so, the onus is on them to justify the restriction. Although not expressly included in the fifth principle it was the Court's view also (adopting its own decision in KUKUTIA OLE

PUMBUN AND ANOTHER VS ATTORNEY GENERAL AND ANOTHER [1993] TLR. 159; as a rejoinder to that principle that: 14 "Whoever relies on a clawback or exclusion clause has to prove that the restrictions are not arbitrary, unreasonable and disproportionate to any claim ofstate interest. " le...s The other princip!ir of constitutional interpretation include: - (6) Courts are not concerned with the legislative wisdom of Parliament. They are concerned only with its legislative competence. (7) While parliament cannot directly override a decision of a Court of law declaring a statute unconstitutional and pronounce it to have been valid, it can make a fresh law, free from unconstitutionality. (8) Courts do accept that civilization owes quite as much to those who limit freedom as to those who expand it. (9) A Constitution must not be construed in isolation, but in its context which includes the history and background to the adoption of the Constitution itself It must also be construed in a way which secures for individuals the full measure of its provisions. " Beginning with the immediately forgoing principle of constitutional interpretation let us briefly attempt to give a historical glimpse to the provisions relating to representative democracy in the genesis of the history of post independent Tanzania. 15 The constitutional history of Tanzania begins with the Tanganyika (Constitution) Order

In Council, 1961 published as Government Notice No. 415 of 1/12/61. The Second Schedule thereof was THE CONSTITUTION OF TANGANYIKA. Section 20 of that Constitution declared universal adult suffrage to every citizen of Tanganyika who had attained the age of 21 years, unless disqualified by an Act of Parliament. Sections 18 and 19 of the Constitution governed the qualifications and disqualifications for elections at the National Assembly. Section 18 provided: "18 Subject to the provisions of Section 19 of this Constitution, any person who: (a) is a citizen of Tanganyika. {b) has attained the age of twenty one years, and (c) is able to speak, and unless incapacitated by blindness or other physical cause to read the English language with a degree of proficiency sufficient to enable him to take an active part in the proceedings of the National Assembly. "shall be qualified for election as a member of the National Assembly, and no other person shall be so qualified". The next Constitution was C.A. Act No. 1 of 1962. (The Constitution of Tanganyika) Section 24 of the Republican 16 Constitution retained the same qualification for being elected to the National Assembly. But Section 4 (3) also listed down the qualifications for election of President. It reads" "4 (3) Any citizen of Tanganyika who: (a) is qualified to be registered as a voter for the purposes of elections to the

National Assembly, (b) has attained the age of thirty years and, (c) in the case of elections held on a dissolution of Parliament, is nominated by not less than one thousand persons registered as voters for the purposes of elections to the National Assembly shall be qualified for elections as President. It may be noted in passing here that in these constitutions there was no political party membership qualifications, although there were several active political parties. Next, was the Interim Constitution which followed the union of Tanganyika and Zanzibar. Notably, Article 3 (1) declared Tanzania as a one political party state ....... . 17 "3 (3) All political activity in Tanzania other than that of • C the organs of State of the United Republic ............ shall be conducted by or under the auspices of the party. " Article 4 (4) forbade: "No Act of Parliament shall provide for the disqualification of any citizen of Tanganyika from registration as a voter for the purposes of elections by the people or for the disqualification of I"" any such registered voter from voting at such elections except on the grounds of his allegiance to another. state, infirmity of mind, criminality, absence or failure to produce evidence· of age, citizenship or registration." So while political activity was confined to be conducted under the party all the citizenry had the universal franchise to

vote. But this Constitution did not expressly provide for the qualifications of a presidential candidate, like Section 4 (3) of the 1962 Republican Constitution. Instead, the 1965 Constitution left it to the Electoral Conference to nominate a presidential candidate. This was the Electoral Conference of TANU as defined in Part E of the party's Constitution which was annexed as a schedule to the 1965 Interim Constitution. 18 Unlike the 1961 arid 1962 Constitutions, Article 27 of the 1965 " . ' Interim Constitution introduced for the first time, party membership qualification for candidates of constituency members. It provided: "27 (]) Any citizen of Tanzania who has attained the age of twenty one years and is a member of the Party shall, unless he is disqualified under the following provisions of this section or an Act of Parliament to which this section refers be qualified for election as a constituency member, and no other person shall he so qualified." So, party membership, as a qualification for an elective post, was introduced in the country with the advent of a one party state. It is an undeniable historical fact. We must hasten to add that although there were other political parties up to 1965 the previous constitutions did not provide for party membership qualification. In 1977 Tanzania enacted its first permanent constitution, with CHAMA CHA MAP IND UZI, entrenched as

the only political party in the country. Article 4 (2) retained the universal suffrage as in the previous constitutions. No express qualifications were spelt down for a presidential candidate but his political membership is strongly implicit because the candidate has to be nominated by the party's General Meeting. But for candidates of Constituency Assembly, Article 26 of the 1977 Constitution provides: 19 " "26 (]) Iii mtu aweze kuchaguliwa kuwa Mbunge wa kuwakilisha wilaya ya uchaguzi ni, lazima awe na sifa zifuatazo:- (a) (b) awe mwanachama wa chama anayetimiza masharti ya uwanachama kama yalivyoelezwa katika katiba ya chama na pia awe na sifa za kiongozi zifuatazo:- etc ... " This constitution was amended in 1985 to introduce the Bill of Rights. Article 3 (3) entrenched the one party state: "3 (3) Chama Cha Mapinduzi, kwa kifupi CCM ndicho chama cha siasa pekee katika Jamhuri ya Muungano. " Universal franchise was retained in Article 5 Article 10 provides: "JO (1) Shughuli zote za kisiasa nchini na zinazohusu Jamhuri ya Muungano zitaendeshwa ama na chama chenyewe au chini ya uongozi, usimamizi wa chama." This edition of the Constitution introduced Articles 20 and 21, which we find relevant in the present petition. Article 20 (1) provides: 20 "20 (1) Ki/a mtu anastahili kuwa huru, bi/a ya kuathiri sheria za nchi kukutana na watu wengine kwa hiari yake na kwa amani,

kuchanganyika na kushirikiana na watu wengine, kutoa mawazo hadharani, na hasa zaidi kuanzisha au kujiunga na vyama au mashirika yaliyoanzishwa kwa madhumuni ya kuhifadhi au kuendeleza imani au maslahi yake au maslahi mengineyo. (2) Bila ya kuathiri sheria za nchi zinazohusika ni marufuku kwa mtu yeyote kulazimishwa kujiunga na chama chochote. Article 21 (1) provides: "21 (1) Kila raia wa Jamhuri wa Muungano anayo haki ya kushiriki katika shughuli za utawala wa nchi, ama moja kwa moja, au kwa kupitia wawakilishi waliochaguliwa na wananchi kwa hiari yao kwa kuzingatia utaratibu uliowekwa na sheria au kwa mujibu wa sheria. (2) Ki/a raia anayo haki na uhuru wa kushiriki kikamilifu katika kufikia uamuzi juu ya mambo yanayomhusu yeye, maisha yake au yanayolihusu taifa." 21 Let us now go to the prov1s10ns govemmg the qualifications for presidential and constituency members' qualifications the subject matter of the present dispute. With the 1985 amendments Article 39 of the Constitution read: 39. Mtu hatastahili kuchaguliwa kushiriki kiti cha Rais wa Jamhuri ya Muungano isipokuwa tu kama: (a) ametimiza umri wa miaka arobaini na (b) anazo sifa za kumwezesha kuchaguliwa au kuteuliwa kuwa Mbunge au Mjumbe wa Baraza la Wawakilishi. " The qualifications for a member of parliament are spelt out in Article 67 (I) of the Constitution: "67 (1) Bila ya kuathiri masharti yaliyomo katika

ibara hii, mtu yeyote atakuwa na sifa za kustahili kuchaguliwa au kuteuliwa kuwa Mbunge endapo: (a) (b) ni mwanachama wa chama anayetimiza masharti yote ya uanachama yaliyoelezwa katika katiba ya chama ...... ... " 22 And "Chama" is defined in Article 151 to mean: ... Chama Cha Mapinduzi kilichotajwa katika ibara ya 3 (3) na ya (10) ya Katiba hii. " The dominance of Chama Cha Mapinduzi was abolished by an amendment to Article 10, introduced by Act No. 4 of 1992, with the advent of multiparty politics in Tanzania while Articles 20 and 21 remained intact. Section 13 of Act No. 4 of 1992 amended Article 39 but retained paragraph (c) of the qualifications for a presidential candidate. "(c) ni mwanachama na mgombea aliyependekezwa na chama cha siasa. ,, What the law did here is to transfer that qualification, which was / initially only by implication, to an express one. On the other hand I Article 67 (1) (b) remained the same except that for one to be elected as a parliamentarian he must now be: . ' "mwanachama na ni mgombea aliyependekezwa na chama cha . siasa. " 23 th · The 8 Amendment (Act 4 of 1992) also amended Article 77 (3) of the Constitution by providing that" "(3) Wagombea uchaguzi katika jimbo la uchaguzi watatakiwa watimize yafuatayo: (a) wawe wamependekezwa mmoja mmoja, na chama cha siasa kinachoshiriki uchaguzi katika jimbo hilo.,, .... Before that, Article 77 (1) (2)

required a nominated parliamentary - candidate to be approved by the party's National Executive Committee, a position since the promulgation of the 1965 Interim Constitution (Article (28)) (b) and the 1977 Constitution (Article 27 (2) (b). It is those provisions which this petitioner challenged in his Misc. Civil Cause No. 5 of 1993. After due considerations and visiting numerous authorities, the learned Justice Lugakingira in that case (reported as) REV. CHRISTOPHER MTIKILA VS \j ATTORNEY GENERAL ( Supra) at p. 68 concluded: "For everything I have endeavored to state and notwithstanding the exclusionary elements to that effect in articles 39, 67 and 77 of the Constitution as well ass. 39 of the Local Authorities (Elections) Act 1979, I declare and direct that it shall be lawful for independent candidates along with 24 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. ,, Aggrieved by this declaration, the Respondent filed an appeal to the Court of Appeal while the Petitioner also cross appealed against certain decisions made adverse to him. This was Civil Appeal No. 3 of 1995. It cannot also be disputed that while the appeal was pending the Respondent processed a bill and proceeded to enact a law which had the effect of rendering the ruling of the High

Court ineffective and/or a nullity. On that ground the Respondent applied to withdraw the appeal. The Court of Appeal of course had to grant the application for withdrawal but speaking through KISANGA Ag. C.J. the Court of Appeal lan1ented at p. 3 of the typed judgment: " ... We are constrained to have to point out some aspects in the handling of this matter by the appellant which cause great concern. While the ruling was being awaited, the Government on 16/10/94 presented a Bill in Parliament seeking to amend the Constitution so as to deny the existence of that right, thus pre-emptying the Court Ruling should it go against the Government. This is where things started going wrong. The Government was now adopting parallel causes of action towards the same end by asking Parliament to deal with the 25 matter simultaneously with the High Court. That was totally wrong for reasons which will be apparent presently. Thus the government consciously and deliberately drew the judiciary into a direct clash with Parliament by asking the two organs to deal with the same matter simultaneously. Such a state of affairs was both regrettable and most undesirable. It was wholly incompatible with the smooth administration of justice in the country and every effort ought to be made to discourage it. " The Court then went on to observe in conclusion: "In the instant case had the amendment been

initiated and passed after the Court process had come to a finality that in law would have been alright procedurally, the soundness of the amendment itself, of course, being entirely a different matter. Then the clash would have been avoided. Indeed that would be in keeping with good governance which today constitutes one of the attributes of a democratic society. " The amendments referred to in the judgment of the Court of Appeal are those made by Act No. 34 of 1994 which as observed, was passed by the Parliament on 16/10/94 while the Ruling of Lugakingira J (as he then was) was handed down on 24/10/94, as it was still pending when the Parliament enacted the law. As a matter of procedure, we must, at once condemn this act of the Respondent as being contrary to 26 the dictates of good governance, and for which we can do no more than quote the above cited passage from the judgment of the Court of Appeal. We shall leave it at that and now go to the substance of the petition which is before us. Act No. 34 of 1994, amended Articles 21, 39, and 67 of the Constitution by cross referring Article 21 to article 5, 39 and 67. Article 5 entrenches the universal franchise subject to the other provisions of the Constitution and other laws that may be enacted. To appreciate the impact of the amendments both the former and the new relevant Articles must be quoted in full. Before the

amendment, Article 21 (1) provided: "21 (]) Kila raia wa Jamhuri ya Muungano anayo haki ya kushiriki katika shughuli za utawala wa nchi, ama moja kwa moja au kwa kupitia wawakilishi waliochaguliwa na wananchi kwa hiari yao, kwa kuzingatia utaratibu uliowekwa na sheria au kwa mujibu wa sheria. The new Article 21 (1) now reads (2005 edition): "21. (1) Bila ya kuathiri masharti ya Ibara ya 39 ya 47 na ya 67 ya Katiba hii na ya sheria za nchi kuhusiana na masharti ya kuchagua na kuchaguliwa, au kuteua na kuteuliwa kushiriki katika shughuli za