JOHN SEKA

r IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [PAR ES SALAAM SUB REGISTRY] AT PAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO 27210 OF 2024 IN THE MATTER OF SECTION 201A OF THE LOCAL GOVERNMENT[DISTRICT AUTHORITIES] ACT AND SECTION 87A OF THE LOCAL GOVERNMENT[URBAN AUTHORITIES] ACT IN THE MATTER OF ELIGIBILITY FOR NOMINATION AS CANDIDATE FOR THE LOCAL GOVERNMENT ELECTIONS SLATED FOR 29.11.2024 AND IN THE MATTER OF DECLARING REGULATION 15(F) OF GN NO. 571 OF 2024; REGULATION 14(F)OF GN NO. 572 OF 2024; REGULATION 15(F) OF GN NO. 573 OF 2024 AND REGULATION 15(F)OF GN NO.574 OF 2024 VOID,ILLEGAL AND UNCONSTITUTIONAL AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF MANDAMUS,CERTIORARI AND PROHIBITION JOHN SEKA APPLICANT VERSUS MINISTER OF STATE IN THE PRESIDENT'S OFFICE REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT RESPONDENT ATTORNEY GENERAL 2'^'' RESPONDENT RULING 5th ^ 7th November 2024 MKWIZU,J: This Is an application for leave to file an application for Judicial Review for orders of certiorari, mandamus and Prohibition made under Section 2(3) of the Judicature and Application of Laws Act; Section 18(1) and 19(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions] Act read together with Rule 5(1); 5(2) and 5(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions)(Judicial Review Procedure and Fees) Rules, 2014]. The Application was accompanied by two affidavits, a main affidavit and a supplementary sworn by John Seka,the applicant herein acknowledging that the First Respondent, as the Minister in charge of local governments, has a constitutional mandate under Article 146[2][c] to consolidate democracy within the local government area to accelerate the development of the people and that in fulfilling the aforementioned constitutional obligations, he has announced through the Tangazo la Uchaguzi dated 15/08/2024 the commencement of electoral processes to choose local government leaders In the local government elections slated for 27.11.2024 and has passed regulations for the carrying out of the aforementioned elections namely: 1. Kanuni za Uchaguzi wa Mwenyekiti wa Kijiji, Wajumbe wa Halmashauri ya Kijiji na Mwenyekiti wa Kitongoji katika Mamiaka za Wiiaya za Mwaka 2024(GN No. 571 of2024); 2. Kanuni za Uchaguzi wa Mwenyekiti wa Kitongoji katika Mamiaka za Miji Midogo za Mwaka 2024(GN572 of2024); 3. Kanuni za Uchaguzi wa Mwenyekiti wa Kijiji, Wajumbe wa Haimashauri ya Kijiji na Mwenyekiti wa Kitongoji katika Mamiaka za Mijiza Mwaka 2024(GNo. 573 of2024)and; 4. Kanuniza Uchaguzi wa Mwenyekiti wa Mtaa na Wajumbe wa Kamati ya Mtaa katika Mamiaka za Mijiza Mwaka 2024 (GN No. 574 of2024) He expressed surprise at his Inellglblllty to contest for any positions due to his non-membership In a registered political party, as outlined In several regulations (regulation 15(f) of GN No. 571, regulation 14(f) of GN No. 572, regulation 15(f) of GN No. 573, and regulation 15(f) of GN No. 574 of 2024) set by the First Respondent. He contends that these provisions may Infringe upon his rights to participate in national affairs, and access to equality, employment, fundamental rights, and consultation on significant national issues. He seeks to nullify the regulations affecting his eligibility for the upcoming local Government elections, arguing that the law-making authority has exceeded its constitutional limits in enacting these illegal and unreasonable provisions. Given the nomination timeline outlined in the Tangazo la Uchaguzi, he believes that pursuing a judicial review application is the only effective remedy to address his ineligibility for the local government elections scheduled for November 29, 2024. The application was vehemently opposed by the respondents, who, apart from filing counter affidavits in response to the applicant's affidavits, also filed two points of preliminary objection as follows: 1. T/he court has nojurisdictions to grant the reliefsought 2. The application is resjudicata Taking into account the urgency of the matter, it was ordered that both the preliminary objections and main application be heard simultaneously, but the merit of the application would depend on the result of the preliminary objection. This was done by oral submissions, with the applicant present in person while Daniel Nyakihya, Senior State Attorney, Edwin Weblio and Caroline Lyimo, State Attorneys, defended the respondents. Submitting on the preliminary objections, Mr Edwin Webilo, State Attorney, said the court lacks jurisdiction to address the matter because the applicant has an alternative remedy available to seek the reliefs desired and two, that the constitutional claims made in the application cannot be resolved through a judicial review process. Citing the decision in Pavisa Enterprises V The Minister for Labour Youth Development and Sports and Attorney General, Miscellaneous Civil Cause no 65 of 2003(Unreported), the learned State Attorney said that the settled law requires that a judicial review application must be accepted on where the applicant demonstrates the lack of any alternative remedy. He asserted that the applicant is, by paragraph 4 of the statements in support of the application, seeks to challenge the impugned regulations because they contravene Article 12; 13(1)(3), and (4); 20 (4); 21 (1) (2); 22(2); 26(1); 29 (1), (2) and (5) and. Article 146(2) paragraph(c ) of the Constitution of the United Republic of Tanzania that guarantee equality, prohibit discrimination, ensure participation in governance, and affirm the right to equal opportunities. To him, all the listed reliefs can only be entertained through constitutional cases under section 4 of the Basic Rights and Duties Enforcement Act(Cap 3 R E 2019)( BRADEA). He thus maintained that the applicant, based on the grounds cited, had an alternative remedy of filing a constitutional case in a constitutional court to determine whether the impugned regulations infringe the enumerated articles of the Constitution And since leave cannot be granted where the applicant has an alternative remedy, he submitted that the applicant needs to exhaust all available remedies. Arguing on the second limb of the objection, Mr Webilo said the court lacks jurisdiction to address the applicant's claims, as they primarily challenge the constitutionality of complained regulations. It is contended that such matters must be resolved by a Constitutional Court, which can provide the appropriate remedies under the Basic Rights and Duties Enforcement Act and cannot be adjudicated in a judicial review context. Reliance was made to the decision of Attorney General V Lohay Akonaye and Another (1995) TLR 8 Submitting the second preliminary objection, Mr. Nyakihya, a senior State Attorney, stated that the application is res judicata. He argued that the applicant is seeking a public law remedy, which typically addresses issues of public interest. This means that the implications of this application extend beyond just the parties directly involved; its outcome will also impact the wider public. Regarding the doctrine of res judicata concerning public law remedies, the learned state attorney said, in Onesmo Ole Ngurumo v. The Attorney General, Misc. Civil Cause No. 36 of 2019, the court identified four key elements necessary for res judicata to apply, (I), the matter currently in dispute must have also been a central Issue In the prior case,(ll)the previous case must have been conclusively resolved,(III) The parties In both cases must be the same and claiming under the same title and iy) that a court with the appropriatejurisdiction must have tried the former case with a clarification note even if the parties differ, public interest litigation can still be deemed res judicata provided that the other elements are satisfied. He also cited the decision in Jebra Kambole v. The Attorney General, Civil Appeals No. 236 of 2019, where the Court of Appeal reiterated on page 25 that in public interest litigation, the determination of issues does not solely pertain to individual rights but concerns the Public at large. He said, in the case of Bob Chacha Wangwe and Others v. The Minister of the President's Office, Regional Administration and Local Government, Miscellaneous Cause No. 23513 of 2024, this same court dealt with Government Notices No. 571, 572, 573, and 574 of 2024 which are the same Notices intended to be challenged as demonstrated by paragraph 4 (b), of the applicant's statement in support of the application where the applicant wants their removed on the grounds of procedurally ultra vires. In assessing procedural ultra vires, the court was called to evaluate section 201 of the Local Government (District Authorities Act) alongside section 87A of the Local Government (Urban Authorities) Act, similar to what is requested in the current application. In its findings recorded on page 36, the court determined that the first respondent, the same entity involved in the present case, acted within the legal powers granted to them when enacting Government Notices No. 571, 572, 573, and 574 of 2024. He firmly believed that the grounds outlined in paragraph 4(b) of the applicant's statement had already been conclusively addressed, regardless of the specific regulations mentioned in the cited Government Notices. In his second point in respect of the res judicata principle, with regard to public law remedies, the State Attorney articulated that the applicant seeks to invalidate the Government Notices (GNs) listed above on the grounds of unconstitutlonality due to purported restrictions on independent candidates. Citing to the Court the Full Bench decision in Honorable Attorney General V Rev. Christopher Mtikila Civil Appeal No. 45 of 2009, he said the decision, interpreting Articie 21 of the Constitution, underscored that the matter of independent candidacy must be addressed by Parliament, not by the judiciary insisting that the issue of private candidates raised by the appiicant directly correlates to the matter previously adjudicated by the Court of Appeal, thereby invoking the doctrine of res judicata. He affirmed that since simiiar issues have already been adjudicated, the principie of res judicata precludes the current application from proceeding. He lastly prayed that the application be dismissed Mr. Seka initiated his argument by addressing the preliminary objections argued by Mr. Nyakihya, asserting that the issues adjudicated in Bob Chacha Wangwe differ substantially from those currently before the court. He highlighted that the crux of his application, as expressed in the statement and chamber summons, is a request for judicial leave to pursue orders of mandamus, certiorari, and prohibition regarding the challenge to the validity of Government Notices (GN) Nos. 571, 572, 573, and 574 of 2024 imposing restrictions on candidates participating in the forthcoming Local Government elections, explicitly mandating that candidates either be members of or sponsored by a political party, thereby impeding the rights of independent candidates, a request that is more precise and narrowly focused. Should the court grant leave, he assured that the argument will specifically address the provisions outlined in Regulation 14 (f) and 15(f) of GN 571 of 2024, GN 572 of 2024, GN 573 of 2024, and GN 574 of 2024. He urged the court to examine the chamber application, supporting affidavit, and statement, which collectively underscore that the complaint pertains to a distinctly limited scope, addressing specific regulatory stipulations within the challenged Government Notices. Addressing whether the regulations in question were previously deliberated in the Bob Chacha Wangwe case, Mr. Seka asserted a definitive "no." While acknowledging the established principles of res judicata within public litigation, he maintained that the issues raised in the present application are substantively distinct from those considered in the prior case. He Invited the Court to scrutinise the findings in Bob Chacha Wangwe, particularly on page 14, where the applicants delineated their reasons for seeking relief, including their challenge to the first respondent's authority to promulgate the regulations, claims of bias due to the first respondent's affiliations with the CCM party, and questions 10 surrounding the jurisdiction of the Independent National Electoral Commission over local government elections. He noted that on page 24, the Court had framed vital issues regarding the legal authority of the second respondent to issue the disputed Government Notices and to oversee the impending local government elections as central to the previous decision. In contrast, he contended that the current application does not challenge the legitimacy of the regulations' enactment. Instead, the applicant seemingly concedes the Minister's authority to issue such regulations with a conspicuous absence of claims concerning bias, conflicts of interest, or the jurisdiction of the Electoral Commission in the current proceedings. He respectfully submitted that the first limb of the second preliminary objection is misconceived and should be dismissed for the reasons provided. Responding to the second limb of the second preliminary objection, Mr. Seka expressed uncertainty as to whether the Court of Appeal has previously adjudicated the issue of independent candidates can legitimately be addressed at the level of a preliminary objection, as it necessitates a review of the Full Bench decision in the Reverend Mtikila case, including an analysis of Article 21 of the Constitution the inquiry that would involve assessing whether the issues settled in the Mtikila case are 11 pertinent to the current proceedings. Citing the decision of the Court of Appeal in Soitambu Village Council v. Tanzania Breweries Limited and Another, Civil Appeal No. 105 of 2011, he noted that the Court indicated, on page 11 of its ruling, that it is impractical to determine res judicata if the parties contest factual matters that require resolution. He argued that the Mtikila decision is distinguishable from the present case, asserting that Article 21 explicitly delineates that only candidates enumerated under Articles 39, 47, and 67 are subject to restrictions. Article 39 pertains to presidential qualifications. Article 47 to vice- presidential qualifications, and Article 67 to parliamentary elections and no reference to local government elections concerning independent candidates was made available for discussion. He was of the view that if the framers of the Constitution had intended to impose such restrictions across the board for independent candidates, they would have articulated that intention explicitly. He was emphatic that the Mtikila decision does not constitute res judicata for the current matter nor conclusively settle the issues surrounding independent candidates for it does not address local government election matters or scrutinize the minister's authority to impose regulations that potentially infringe upon constitutional rights. Therefore, he argued that the matter before the court is distinctive and 12 seeks to challenge the ministerial powers that may contravene the rights enshrined in the Constitution. Regarding the available alternative remedies, Mr Seka argued that his inability to participate in the impending local government elections is directly attributable to the restrictions imposed by Regulations 14(f) and 15(f), constituting subsidiary legislation. He queried the appropriate course of action for individuals aggrieved by such legislation, contending that while the opposing counsel suggests a constitutional petition, this interpretation is fundamentally flawed. He drew upon established jurisprudence, stating that several decisions from this court have clarified the procedural avenue available for challenging subsidiary legislation through judicial review rather than constitutional petitions. He cited to the court the case of Geoffrey Watson Mwkasege v. Tanganyika Law Society and the Attorney General, where the court, on page 41 of the judgment, firmly articulated that judicial review is the requisite approach for redress in such instances emphasising that the Basic Rights and Duties Enforcement Act (BRADEA) should only be invoked when addressing challenges to Parliamentary Acts. He argued that the court's invitation to consider a constitutional remedy might overlook relevant legal frameworks, as Sections 4 and 8 of BRADEA 13 indicate that a party does not need to seek redress through the constitutional bench if alternative actions are available. He interpreted this to mean that judicial review is still a viable option for addressing grievances connected to subsidiary legislation. He went further to state that, the regulatory framework governing judicial review is encapsulated in the Law Reforms (Fatal Accident and Miscellaneous Provisions) Act, which, under section 18(2), provides for the opportunity to address issues on the infringement of fundamental freedoms specified in Part Three, contingent upon the Attorney General is made a party to the proceedings. He argued that the inverse scenario does not hold. Under the Basic Rights and Duties Enforcement Act (BRADEA), it is unequivocally stated in section 8(4) that judicial review remedies cannot be sought within the confines of a constitutional petition, and therefore, a constitutional petition does not constitute an alternative remedy. He thus sought to clarify and distinguish the case of Lohay Akonaye referred to by the respondents. He posited that the argument concerning the appropriate forum is applicable only where an alternative remedy exists, yet in the current scenario, all remedies are already before the court and, therefore, incumbent upon the applicant to determine the appropriate remedy they wish to pursue. 14 Addressing the point raised in the second limb of the preliminary objection, Mr. Seka said, the challenge outlined in paragraph 4 of the statements pertains specifically to the contested regulations, asserting their illegality and voidness on the grounds of contravening constitutional provisions. He elaborated that under paragraph 4(b) of his statement in support of the application, the challenge also addresses the regulations' procedural ultra vires. In contrast, paragraph 4(c) contests the restrictions as unreasonable and irrational. This is substantiated by circumstances that underpin the complaint and well-established bases for seeking judicial review. He banked the case of Sanai Mkukobe and Another v. Muhere Chacha (1990)TLR 54 as precedent contending that the matter at hand encompasses more than merely constitutional arguments, countering the assertion made by the opposing party. Accordingly, he respectfully urged the court to dismiss the preliminary objection on the grounds of lack of merit, thus facilitating an opportunity for the application for leave to be assessed on its substantive issues. He also stated that he would not seek costs in relation to this matter Rejoining on the applicant's submissions regarding the first objection, Mr Webilo, the State Attorney, pointed out that the applicant's assertion, which relies on the decision of Geoffrey Waton Mwakasege, is flawed. 15 as it presumes that a constitutional challenge is outside the purview of judicial review. The decision, he said, belongs to this court and does not bind it in the current instance. He maintained that the contested regulations are being challenged for being unconstitutional, necessitating the filing of a constitutional petition. He also considered the assertion that BRADEA applies only to acts of Parliament as a misunderstanding. Mr. Webilo pointed out that Section 4 of BRADEA explicitly provides that if an individual alleges a contravention of any constitutional provision that directly affects them, they may file a constitutional petition. To him, the contraventions could arise from various sources, including government decisions, regulations, or actions defined under Section 2 of BRADEA. He said section 13(2) of BRADEA explicitly allows the High Court to address applications that allege the abrogation of basic rights and freedoms outlined in Articles 12 to 29 of the Constitution. He asserted that any law or action infringing upon basic rights falls squarely within the jurisdiction of BRADEA, thus reinforcing the claim that the applicant's challenge should have been pursued through a constitutional application. 16 Regarding the implications of Section 18(2) of the Law Reforms (Fatal Accidents Miscellaneous Provisions) Act, Mr. Webilo contended that this section only applies when the applicant has no alternative remedy. He asserted that the necessity for judicial review arises solely in cases without other remedies, negating its applicability in this scenario. Concerning jurisdiction, Mr. Webilo reiterated that issues related to constitutional violations, particularly those implicating Articles 12 to 29, must exclusively be addressed by a Constitutional Court in accordance with BRADEA. He lastly urged the court to sustain the objection and dismiss the application accordingly. In relation to the second preliminary objection, Mr. Nyakihya, Senior State Attorney, stated that the applicant's challenge specifically targets Regulation 14(f) of GN No. 572, Regulation 15(f) of GN No. 573, and Regulation 15(f) of GN No. 574. This issue falls under the scope of the Bob Chacha Wangwe case, which addressed the legality of the entire set of regulations, including those highlighted by the applicant. He argued that the matters considered included the first respondent's claims of unreasonableness and ultra vires actions, which closely resemble the claims made in the applicant's chamber summons. Mr. Nyakihya emphasized that although the applicant specifically mentioned 17 Regulations 14 and 15, the core of their argument is based on the assertion that these regulations are ultra vires. He clarified that the context of res judicata in Soitsambu's case pertains to a conventional civil case distinct from the present public law litigation. Thus, it aligns more closely with the principles established in Ole Ngiirumo's case. Mr Nyakihya reiterated their position, highlighting that the applicant is contesting the constitutionality of independent candidates as framed in paragraph 4(a) of their statement, a matter already adjudicated in the Mtikila case. He asserted that this establishes a basis for res judicata within the context of public law remedies. He respectfully urged the court to uphold the preliminary objection and dismiss the application accordingly. I have considered the chamber summons, the Affidavits, and the spirited statements filed by the parties for and against the application. As stated earlier, this court's power to adjudicate upon the intended prayers after the leave stage is strongly challenged. The Respondent points are mainly two: (i)The Court lacks jurisdiction to grant the relief requested because the applicant has an alternative remedy available under Section 4 of the Basic Rights and Duties Enforcement Act. Additionally, this case involves 18 constitutional matters where constitutional relief is sought and (ii) the application is considered res judicata. To determine the two points, I will need to look at the intended reliefs by the applicant and the grounds thereof to gauge the validity of the respondent's arguments. The chamber summons sets out four prayers as follows: 1. That the application be and is hereby certified as urgent having regard to the fact that 08.11.2024 is the appointed date of nomination of candidates for the upcoming iocai governmentelectionssiatedfor27.11.2024and on accountof the factthatifthe applicants concerns are notdetermined the intended judicial review application wiii be an academic exercise; 2. That this courtgrants leave to the applicant to fiie ajudicial review application for orders of Certiorari, Mandamus and Prohibition to remove into,court GN No. 571 of2024; GN No. 572of2024; GN No. 573of2024and GN No. 574 of2024 and question the validity and legality ofrestricting the applicants candidacy in the upcoming iocai government elections siated for 27.11.2024 unless he is a member ofand is sponsored by a registered political party. 3. That this courtgrants leave to the applicant to fiie ajudicial review application for orders of Certiorari, Mandamus and 19 Prohibition to remove into court GN No. 571 of2024; GN No. 572of2024; GN No. 573of2024and GN No. 574of2024 and question the vaiidity and iegaiity of the restricting aduit citizens of Tanzania to contest eiections in the upcoming iocai government eiections siated for 27.11.2024 uniess such citizens are members of and are sponsored by registered poiiticaiparties. 4. That this court be pieased to grant any other reiief which deems fit and proper in the interest ofjustice, inciuding an order extending the time of accepting the nomination of eiigibie candidates who are not members of the registered poiiticai parties to contest for iocai government positions in the upcoming iocai government eiections siated for 27.11.2024. According to paragraph 4 of the applicant's statement, the above reliefs are based on three main grounds. 1. That the promulgations of Regulation 15(f) of GN No. 571 of 2024; Regulation 14 (f) of GN No. 572 of 2024; 15(f) of GN No. 573 of 2024 and regulation No. 15(f) of GN No. 574 of 2024 restricting citizens who are not members of registered political parties to contest the upcoming local government elections slated for 27.11.2024 was in contravention of the Constitutions; illegal and void on account of contravening Articles 12; 13[1]; 13[2]; 13[4]; 20[4]; 21[1]; 21[2]; 22[2]; 26[1]; 29[1]; 29[3]; 29[5] and 146[2][c] of the Constitution of the United Republic of Tanzania 20 2. That the First Respondent's promulgations of complained provisions restricting citizens who are not members of registered political parties to contest the upcoming local government elections slated for 27.11.2024 was procedurally ultra vires on account that the provisions exceed the Respondent's regulatory authority, established without considering the applicant's viewpoints, lacked adequate consultation with affected citizens not affiliated with political parties, and reflect the First Respondent's bias as a member of a registered political party. 3. That the promulgations of the complained provisions restricting citizens who are not members of registered political parties to contest the upcoming local government elections slated for 27.11.2024 was unreasonable and irrational on the absence of constitutional, local government, particularly Local Government [Urban Authorities] Act; the Local Government [District Authorities] Act or other statutory law provisions to support such restrictions, infringing upon several fundamental rights of Tanzanian citizens as guaranteed by the Constitution, disregarding relevant international treaties and conventions to which Tanzania is a party, and failing to adhere to Part 3 of Chapter 1 of the Constitution of Tanzania. 21 It is clear that ground one above challenges the constitutionality of the impugned regulations, while grounds 2 and 3 touch on the validity of the impugned rules, challenging the respondent's mandate to make them. The respondent argues that the constitutional claims made in the application cannot be resolved through a judicial review process but in a constitutional court under Section 4 of the Basic Rights and Duties Enforcement Act. While acknowledging that the challenge outlined in paragraph 4(a) of his statements specifically addresses the contested regulations' illegality and voidness due to their contravention of constitutional provisions, the applicant posits that the matter extends beyond mere constitutional arguments. Moreover, a remedy is also accessible under the Law Reforms (Fatal Accident and Miscellaneous Provisions) Act, particularly section 18(2), which allows for the redress of issues pertaining to the infringement of fundamental freedoms delineated in Part Three, provided that the Attorney General is joined as a party to the proceedings. I have carefully considered the competing submissions before me. It is a settled principle in our jurisdiction that issues concerning the constitutionality of any law fall within the jurisdiction of the Constitutional Court. This position is well spelt by the Constitution itself under Article 22 ji 30(3) of the Constitution reinforced under section 4(1) of the Basic Rights and Duties Enforcement Act(BRADEA). Article 30(3) is couched thus: 30(3) Any person claiming that any provision in this Part ofthis Chapter or in any law concerning his right or duty owed to him has been, is being or is iikeiy to be vioiated by anyperson anywhere in the United Republic may institute proceedings for redress in the High Court. And section 4(1) states: "4(1) Where any person aiieges that any of the provisions ofArticles 12to 29 ofthe Constitution has been, is being or is iikeiy to be contravened in reiation to him, he may, without prejudice to any other action with respect to the same matter that is iawfuiiy avaiiabie, appiyto the High Courtfor redress The above provisions read together unequivocally establish the right of any individual affected by an infringement of constitutional rights to file a constitutional petition. The above provisions are underlined by the powers vested to the constitutional court under section 13 of BRADEA which says: "13.-(1) Subject to this section, in making decisions in any suit, ifthe High Court comes to the conciusion that the basic rights, freedoms and duties concerned have been uniawfuiiy denied or that grounds exist for their protection by an order, 23 it shall have power to make all such orders as shall be necessary and appropriate to secure the applicant the enjoyment ofthe basic rights, freedoms and dudes conferred or Imposed on him under the provisions ofArticles12to 29 ofthe Constitution. (2) Where an application alleges that any law made or action taken by the Government or other authority abolishes or abridges the basic rights, freedoms or duties conferred orimposed byArticles12to 29ofthe Constitution and the High Court Is satisfied that the law or action concerned to the extent ofthe contravention Is Invalid or unconstitutional, then the High Court shall. Instead of declaring the law or action to be Invalid or unconstitutional, have the power and the discretion In an appropriate case to allow Parliament or other legislative authority, or the Government or other authority concerned, as the case may be, to correct any defectIn the Impugned law or action within a specified period, subject to such conditions as may be specified by It, and the law or action Impugned shall until the correction Is made or the exphy of the limit set by the High Court, whichever be the shorter, be deemed to be valid. (3) The power ofthe High Court under this Act shall Include the power to make all such orders as shall be necessary and appropriate to secure the enjoyment by the applicant of the basic rights, freedoms and dudes under the provisions of Articles 12 to 29 ofthe Constitution should the Courtcome to the conclusion thatsuch basic rights, freedoms or duties have 24 been unlawfully denied or violated or that grounds exist for their protection by an order,"(emphasis added) To my understanding, the phrase "anylaw" as employed in Article 30(3) of the Constitution and Section 13(2) of the BRADEA, encompasses all forms of legislative enactments without distinction between subsidiary and principal legislation. This assures all individuals seeking to protect their constitutional rights that they are afforded recourse against any legislative provisions that may infringe upon those rights by the BR,ADEA through a constitutional petition. Now back to the applicant grounds: Paragraph 4(a) of the applicant's statements is a bit detailed: It is drafted thus: "4. That the following grounds shall be relied upon by the applicants to claim reliefs: a) That the First Respondent's promulgations of Regulation 15[f]ofGN No. 571 of2024;regulation 14[f]ofGN No. 572of 2024,15[f]ofGN No. 573of2024 and regulation No. 15[f]of GN No. 574 of2024 restricting citizens who are not members of registered political parties to contest the upcoming local government elections slated for 27.11.2024 was In contravention ofthe Constitutions; Illegal and void on account ofcontravening Articles 12;13[1];13[2]; 13[4];20[4];21[1]; 21[2];22[2];26[1J;29[1J;29[3J;29[5]and 146[2][c]having regard to the fact: 25 [i] That the promulgation did not consider the import and effectofArticle 12ofthe Constitution thatguarantees equality to aii human beings including the applicant [ii] That the promulgation did not consider the import and effect of Article 13[1] of the Constitution that guarantees equality before the iaw and prohibits discrimination; [Hi] That the promulgation did not consider the import and effect of Article 13[2] of the Constitution that prohibit enactmentofprovisions are discriminatory either ofitseifor in its effect. [iv] That the promulgation did not consider the import and effect of Article 13[4] of the Constitution that prohibit discrimination against any person by any person or any authority acting under any iaw or in the discharge of the functions or business ofany state office. [vJThat the promulgation did not consider the import and effectofArticle 20[4]that makesit unlawfulfor anyperson to be compelled tojoin any association or organization, [vi] That the promulgation did not consider the import and effect ofArticle 21[1]that guarantees to every citizen rights to directly take partin the affairs oftheir country underArticle [vii] That the promulgation did not consider the import and effect ofArticle 21[2]that guarantees to every citizen rights to participate fuiiy in the process leading to the decision on matters affecting him, his weii-being or the nation. 26 [viii] That the promulgation did not consider the import and effect ofArticle 22[2]that guarantees to every citizen equal opportunity and right to equal terms to hoid any office or discharge any function under the state authority. [ixj That the promulgation did not consider the import and effect of Article 26[1]that required the First Respondent to observe and to abide by the Constitution of Tanzania; [xJThat the promulgation did not consider the import and effect ofArticle 29[1]that guarantees to citizens the right to enjoy fundamental rights and benefits guaranteed and or imposed by the constitution; [xiJThat the promulgation did not consider the import and effectofArticle 29[2]thatguarantees to every citizen the right to equalprotection under the iaws ofthe United Republic; [xiiJThat the promulgation did not consider the import and effect of Article 29[5]that required the First Respondent to conduct himseif and his affairs in the manner that does not infringe upon the rights and freedoms ofothers or the public interest; [xiii] That the promulgation did not consider the import and effect of Article 146[2][c] of the Constitution that seeks to consolidate democracy as a means to accelerate the development ofthe people." 27 This ground is also supported by the applicant's averment in paragraphs 9,11, and 12 of the affidavit in support of the chambers summons, which read: - 9. That being disturbed by the text ofthe compiained provisions and having regard to my intended desire to contest and seek eiected office in the upcoming eiections; it dawned upon me that the compiained provisions may be inconsistent with severaiofmyfundamentairightsinciuding the rightto directiy take partin the affairs ofmycountry;the right not to be discriminated; the right to equaiity without discrimination; the right to work; the right to enjoy fundamentairightsand the rightto be consuited when important nationai matters affecting them are discussed and iegisiated, amongst others. 10. That I am aware that the First Respondent has constitutionai duty and obiigations to observe and to abide by the Constitution of Tanzania. Additionaiiy, Iam further aware that it is uniawfuifor any person[inciuding the first Respondent] to compel me to join any association or organisation. 12. That being aiive to the constitutional duty of the First Respondent aforestated; I have now scrutinised the entire Constitution of Tanzania and in so doing faiied to iocate anyprovision thatrestrict me to contestiocai governmentieadership position in the upcoming iocai government eiections siated for 27.11.2024 untii and 28 unless I become a member of a registered political party. "(bold is mine) Reading between the lines of the foregoing paragraph reveals a clear challenge to the constitutionality of the impugned provisions. The applicant asserts that the provisions in question do not align with the constitutional framework, particularly articles Article 12; 13 (1)(3), and (4); 20 (4); 21 (1) (2); 22(2); 26(1); 29 (1), (2) and (5) and, Article 146 (2) paragraph( c ) of the Constitution implying that they infringe upon fundamental rights as enshrined in the Constitution, thereby engaging the scope and purview of constitutional law. The applicant's assertion regarding the regulatory framework for judicial review, under section 18(2) of the Law Reforms (Fatal Accident and Miscellaneous Provisions) Act is flawed and may lead to misinterpretation. The grounds articulated in paragraph 4(a) of the applicant's statement pertain to essential rights enumerated in Articles 12-29 of Part III, Chapter One of the Constitution, and accordingly fall within the purview of BRADEA as established by Article 30(3) of the Constitution, which explicitly provides the framework for protecting and enforcing constitutiorial rights. Thus, contrary to the applicant's claims, recourse to the mechanisms 29 outlined in BRADEA is not only appropriate but mandatory in enforcing the fundamental rights at issue. Thus, I agree with the learned State Attorney's position that the constitutional claims articulated in paragraph 4(a) of the application are not amenable to resolution via the judicial review process. Instead, such claims must be adjudicated within the jurisdiction of a constitutional court under Section 4 of the Basic Rights and Duties Enforcement Act. However, as stated, the above grounds were not the only ones asserted by the applicant. Specifically, in paragraphs 4(b) and 4(c), the applicant contests the procedural validity of the impugned regulations for being ultra vires, as they exceed the statutory authority granted to the promulgating body, unreasonable, and irrational, the procedural deficiencies inherent in the challenged regulations, where the issue of res judicata is predicated. The respondents assert that the prayers sought are precluded from consideration, arguing that the validity of Government Notices No. 571, 572, 573, and 574 of 2024, was conclusively decided upon by this court in Bob Chacha Wangwe and Others v. The Minister of the President's Office, Regional Administration and Local 30 Government(Supra). Mr Seka holds a different position, asserting that the issues adjudicated in Bob Chacha Wangwe differ substantially from those of the crux of the applicant's petition, as formulated in the statement and chamber summons. To him, the current challenge is precise and narrow with a limited scope, addressing specific regulatory stipulations within the challenged GNs focused on the validity of Government Notices (GN) Nos. 571, 572, 573, and 574 of 2024 in imposing restrictions on candidates participating in the forthcoming Local Government elections, explicitly mandating that candidates either be members of or sponsored by a political party, thereby Impeding the rights of independent candidates. He invited the court to revisit page 14 of the cited decision on the prayers made. I have revisited the principles of res judicata doctrine articulated in Onesmo Ole Ngurumo v. The Attorney General (supra) in relation to public law litigation. It is settled that for a matter to be considered res judicata, it must have been a key issue in the earlier case that was definitively resolved. The parties involved in both cases must be identical and assert claims under the same title. Additionally, a court with proper jurisdiction must have tried the previous case. More importantly, even if 31 1 I the parties differ, public interest litigation can stili qualify as res judicata if all other criteria are met. Both parties agree to this settied position. It is to be noted that the doctrine of Res judicata is rooted in the principle of providing finality to judicial decisions, indicating that the outcome of the first iegai action is definitive regarding the matters in the second iegal action. Thus, whether the matters to be adjudicated if leave is granted in this appiication are res judicata Bob Chacha Wangwe's decision. I have read the judgment in Bob Chacha Wangwe (supra)cited. In that decision, this Court was invited to consider the legality of the respondent, who is the exact respondent in this application to enact Government Notices No. 571, 572, 573, and 574 of 2024, questioning the 1^ respondent's power in enacting the said regulations for being enacted beyond the powers prescribed by the iaw (ultra vires), illegal and against ruies of natural justice(see pages 24 to 38 of the decision). In dismissing the application in Bob Chacha Wangwes' case, the court held a concrete position that Government Notices No. 571, 572, 573, and 574 of 2024, whose provisions are being contested here, were made by the respondent in accordance with section 56(3) and 201 A of the Local Government( District Authorities) Act and section 87 A of the Local Government( Urban Authorities) Act, and therefore that the first 32 respondent acted within its legal mandate in enacting the challenged regulations declining to endorse the claim of bias. This is precisely what is being sought in paragraphs 4(b )and(c)of the applicant's statement in support of the application, where the first respondent's enactment of the pinpointed regulations is attacked for being procedurally ultra vires, unreasonable, and irrational, specifically that the complained provisions exceed the Respondent's regulatory authority, established without considering the applicant's viewpoints, lacking adequate consultation with affected citizens not affiliated with political parties, reflecting • First Respondent's bias as a member of a registered political party; unreasonable and irrational on the absence of constitutional, local government, particularly Local Government [Urban Authorities] Act; the Local Government [District Authorities] Act or other statutory law provisions to support such restrictions. These grounds are further supported by the applicant's detailed affidavit, which I partly reproduce for convenience: 10. "That being aiive to the fact that in enacting legislation; the framer is required to indicate the reasons for enacting particular provisions; I scanned the entire complained provisions and I couid not decipher, appreciate and understand, the legal criteria deployed by the First Respondent to determine that I, an aduit 33 citizen who is nota member ofa registered politicalparty do not possess requisite skiiis and competence to become a good iocai government ieader. 13. That in addition to the aforementioned absence ofrestriction in the constitution; I am not aware of any law that has conferred to the FirstRespondent^ thejurisdiction and or mandate to legislate complained provisions that have the effect of side-iining me from contesting iocai government ieadership position in the upcoming iocai government elections siated for27.11.2024. 14. That additionaiiy I have aiso searched the entire website of the First Respondent to wit https://www.tamisemi.go.tz/ and J couid not find any document that explained to me the jurisdictionai mandate and or objective criteria used by the First Respondent to introduce complained provisions that have the effect of side-iining me from contesting iocai government ieadership positions in the upcoming iocai government elections siated for27.11.2024. 16. That having failed to locate any constitutional and or iegai mandate for the promulgation of the complained provisions, It dawned upon me that the First Respondents decision to introduce complained provisions that have the effect ofside lining me from contesting iocai government ieadership positions in the upcoming iocaigovernmentelectionssiatedfor27.11.2024 was not influenced by iaws governing and or regulating iocaigovernmentelections. 17. That I am not aware of any public invitation and or public consultation organised by the First Respondent during the period leading to the enactment of the compiained provisions that speciflcaiiy or generaiiy sought my personal views on the merits and or demerits ofside-iining me from contesting iocaigovernmentieadership positions in the upcoming iocai government elections siated for 27.11.2024. Further, Ihad legitimate expectations thatI will be consulted. 34 18. ThatIam now aware that the introductions ofthe complained provisions were heaviiy influenced by persona! bias, inclinations, whims and wishes of the First Respondent and some selected stakeholders including registered political parties."(emphasis added) It is unequivocal that the central issue in this matter revolves around the extent of the 1st respondent's authority to promulgate the disputed regulations, which are alleged to exhibit characteristics of illegality, unreasonableness, bias, and conflict of interest parallel to those examined in the Bob Chacha Wangwe's case. Mr. Seka's assertion that the application concedes the Minister's authority to issue the contested regulations and that it is devoid of claims regarding bias or conflict ofinterest dxrofdir^ contradicts his affidavit supporting the application and the grounds articulated in the statement accompanying it. Mr Seka asserts that his grounds possess a specificity and focus that surpass those presented in Bob Chacha Wangwe. Nonetheless, I contend that this distinction is inconsequential. The resolution of these grounds and their consequent implications for the public interest remain unchanged, irrespective of any asserted specificity, as they carry identical legal ramifications. It is undoubtedly clear that the grounds presented by the applicant in this application have been conclusively adjudicated by this court in the case 35 above, rendering the claims in grounds 4(b) and (c) of the applicant's statement in support of the application res judicata. As such,the principles established therein preclude further examining the issues raised. The two points resolve the matter, so I do not find reasons to engage with the remaining arguments necessary, which would only serve as an academic exercise without practical relevance. As a result, the preliminary objections are sustained to the extent explained above. I find and hold that this court lacks jurisdiction to adjudicate upon the intended application for judicial review. Therefore, the application for leave to file judicial review is dismissed for the above reasons. Each party is ordered to bear its own costs. DATED 3t DAR ES SA this 7*^ November 2024 o CD IZU X JUDGE Ui 7/11/2024 2^ COURT: Ruling is delivered this 7th day of November 2024 in the presence of Mr John Seka, the applicant and Mr Pantaleo Urasa assisted by Kelvin Kisayo, all State Attorney for the respondents u o IZ X JUDGE ★ 36