20020214 TZHC Dr es Salaam

(CORAM: SAMAT-TA, C -.:i:~•~i,.J~ISA...T-JG_A_1, J .A..!..2..,~d LUGl}IGNGIRA, J ••A•) CIVIL APPEAL NO. 64 OF 2001 BETWEEN JULIUS ISHENGOMA F.R.MiJCIS NDYANABO • • • APPELLANT AND THE ATTORNEY GE:f\l'ERA.L,. ~ 0 0 0 0 • • .. • RESPONDENT (Appeal from the 1~~jority decision Af the High Court of '11a11z.a.nia at Dar es Salaam) (Hone K;y:__ando, ~-JJ and_Kimarl'; 2 J_.) ··aated +:b! 29t:h day of June, 2001 --~-----...·.,_,_-~---------~-- Miscellaneous Civil Cause No., 2 of 2001 S.AMATTA, C .J .. : 'I'h is is an appeal from a de c is ion of the High Court ( Kyan do and Ihema, JJ, Kimaro, ,T "~ disse.nt:ing) dismissing a petition filed by the appellant for a declar&tion that Section 111 (2), (3) and (4) of the elections Act, 1985 (~he Act), is unconstitutional for being violative of Articl,':! 13 -:1), (2) and 6 (a) of the Constitution of the United Republic of Tanzani& (hereinafter ~eferred to as the Constitution)o Essentially 1 the appeal is about access to justiceo The background to the ctppc,tl may.1 we think, be stated ·as follows. In the general electio::-_ ~1old in this country in October 2000 the appellant, an advocate by profession, entered into a contest for the parliamentary s::at ::n Nk,mge Constituency. According to the results of ths- contest announced by the Returning Officer, the appellant lost the election,, He was aggrieved by those resultso As he was entit~_;:-d under section 111 (1) of the Act~ • e .,/2 he filed an alection petition before the High C.ourt, questioning ' the validity of the declared victory of one of his opponents in the el.action. The Registrar of the Court has not, in compliance with the provisions of Section 111 (2) of the Act, fixed a date for the heating of th~ petition. The subs~tion, as amen-d,ed by the EUiot6rJ1 Laws (.Misciella.neou.s Arn.endments) Aet, 2001, reads o 11 ( 2) The Registrar shall not fix a date for the hear•ing of any election petition unless the petitioner has paid :into the court, as security for costs, a sum of five million shillings in respect of the proposed election petition."· file, under Article 30 (3) of the c~nstitution and Section 4 o:f the Basic Rights and .Enforcement Act, 199,4, a pe'tition queat.irnjng the constitutionality of the subsection and praying fnr a decl::-..:r·Rtion that the said statutory provision is unconstitutional. It is tht decision of the High Court on that petition which has given rise t'.) the appeal now before U.So Before the High Court it was the appellant's contention that the requirement in the subsection is. unconstitutional, on the ground that it is arbitrary, discriminatory and.unr~sonable and therefore it constitutes an unjustified restri~ti,,n on the right of a citizen to be heard by the Cour~· on his complaint against illegalities or irregularities h the ,onduct of a parliamentary election. The learned Attorney General r, · xesp,mse to the petition was a fairly simple one: the req 11irerr"'"'·c to deposit $hs. 5 million as security for costs was 1 ·consist~"lt w ch the ·avoidance of unnecessary and unreasonable costs to the Gov~ nment, as well as individuals involved which can be caused by \ll'lrear nable and vexatious petitioners who might bring petitions withou" a.."ly .../3 reasonable cause .,i The learned Attorney General urged the learned Judges of the High Court to hold that the appellant had taken a t,,.. wrong step in law in challenging the constitutionality of the requirement of depositing Shs. 5 million as e~eurity for costs; what he should have done W-c\S to file .a.n ~io-atio.n ~ :au.le 11 (3) of the Elections (Elections Petitio:n..s) Rules* 1971 as amended ( for short r,the Rules 11 ) for a direction that he gives -su.o.h o:l:hes- torri; 0£' soou.ri.ty a.s the co\U't. would.. -consider '.fit, or that he be exempted from payment of any form of security for o-ost:e.. The learned .Attorney Ge~era.l ale<>- ro-st,etl his -oef'enoQ to the petition on the provisions of Article 30 (2) (a) and ( f) of the Constitution,. a..sserting that those clawback clauses save the statutory requirement of depoeiting Sha .. 5 nt:iJ-1:LOli a:s security :for ----~ costs .complained against by t.i:ie appellant from the vice of unconstitutionality. It was his case that the provisions of Section 111 meet the test of constitutionality laid down by this Court in ~ukUti,~le_Pumbun anq.~o:t_her v At.,tornex_.Q-enerJill and....&i:other ./j_~9SJ 1'•1::..R• 152• Kyando and Ihema, JJ o, who examined the issues raised before the Court at a great length, entertained no doubt whatsoe~er unconstitutionality. In the course of their ruling they said: ,;we have carefully considered the parties' pleadings and their lucid submissions thereto and we are of the firm view that the petition has been filed without any colour of merit. It is bound to fail•" Accepting,-. as they did, the contention of counsel for the learned Attorney General that the impugned statutory provision was aimed at protecting respondents in election petitions on the question of costs, the learned Judges said: ••• /4 "As a general principle payment ef security for costs is intended to secure 1•the payment of costs if such person doee no-t prevail.~ 1 And aa correctly submitted by Mr. Mwidunda, learned Senior State Attorney, for the reep<mc:lent the provisj..,.-m 'f.~ ~ s pUt$ ~ just and fair obligation on the part c,.f the petitioner to secure the costs of those he d±-ags to Court and as such tbe p ~ i 6 n is legally necessary to protect a respondent in the costs to be inow.-red in t~~ 1.iti.gation. tfa agree and ru,~d that the provisions of Section 111 (2) of the .Elections Aot 1 1985, ~amen®~~ in tandem. "1ith Article 30 ( 1) and 2 (a.) rm~ ( f) of the 0f'.lnsti tutio:n. of thee United · Republic of Tanzania. :irnp<?tQin,e: l . ~ ~ . ~""l'\. an~' ~nfp:c_c_ement - - - -~-. -;:-:-·-;- ~ ·-. . . ..,.and-preserv.a-t-i~-- --.- . of basic rights, freedoms and duties.u 1;30~ ... (1) The human rights and ~ , the ~rinciples of which are set ~ut in by a person. in a manner that causes interference with or curtailment•! the rights and freedoms of 0ther persons or of the public interest. (2) It :i:f; hereby declared that the provisions contained in this Part of this Constitu- tion which set AUt the basic human rights, freedoms. and duties, do not inv~date any exis. t·mg 1 eglS . laticn . or prohibit the enactment of any legislation or the doing of any lawful act in accordance with such legislation for the purpose of •'J (a) ensuring that the rights and freedoms of other people -or- ;Of---the interests of_the~-- public are not prejudiced by the wrongful exercise of the freedoms and rights of indi vir'luals ; (b) .... (c) •0. (d) ••• (e) ••• ( f) lsnabling any other thing to be done which promotes or preserves the national interest :in general." 'Xhe J.earned Judges dismi-ssed .as untenable the contention of the appellant that the provi~~ons of Section 111 (2) and (3) of the Act are di&criminatory on ·'- 1r ground that they deny equal access to the High Court because they p:ace a private e1ection petitioner and th8 Attorney General on unequal footing on the matter of d:9:positing a sum of money as '"'-:curi ty for costs• They said: . •'The Petitioner supports his proposition by contending that adberencd to the rule of law dema-rids equal treatment before the law in terms of Article 13 (1) of the Constitution and t_he extent that a legal provision which · is discriminatory :in itself or its effect is prohibiter!. by Article 13 (2) of the Cortstitutiono We quite agree that is a c_orrect proposition of the law but we hasten to say that litigation, including election petitions involving the Government, are governed and or regulated by a specific legislation, the Government Proceedings Act ••• /6 . t) - 1967 as amended whereas, as correctly submitted by the learned Senior State Attorney, litigants' cos.ts against the Government are more than s'ecured under .Section 15 of that Act. We are of the considered view that such a practice is more of an exception than outright discrimination as alluded to by the petitioner. There is therefore no violence done to Arti-cle 13 (1) and (2.) of the Constitution which bas:i.o.i.1J.y g1;arantees equality before' the lau.;; A little later, the learned Judges -concluded t~ir cons-ideration ------------- ·We agre'3 that the s:pirft oeb.i.nd the amen<lment 1 to Section 111 of the Elections Act 1985 was intended to ensure that respomie.ll.t.s in election petitions a.re protected :in terms of costs which they are 'forced to ihcur in defondil1g their cases,. We are not perJJ.uaded that tho amendment ~ ~ither' j . n t ~ t.o i..~troduce a new aspect unknown to law or a precondition to curtail the Tight to fair hearing and equa.lity before the law. For we reiterate that the legal requirement for payment of security for costs i.s well established and accepted in many jurisdictions where the rule of law is vigorously followed. We on the other hand f:ind it desirable to introduce such adequate safeguards for a petitioner (sic) who is not-able to give the prescribed security ior costs. Essentially this is what is provided for :in Rule 11 (3) of the Election (Election:; Petitions) Rules 1971 which we believe is still in force and .../7 ,...._.,,= \ 'I ... apl)licable. For the avoidance of doubt we advise that the wording of Rule 11 (3) cf th~ election (ElectioraPetitions) Rules, ·1J7--; ~ be also uplifted and introduced in the provisions of se·ction 111 of the ;~ / :,,?)~•i,\.;',j~,, ,;;',:~;):lections Ac.t 1985.•· 9 P.-- .,.,,1.1.~eady indicated, K:imaro, J., fonnd herself una·ole -:- share her brethren 1 s views on the constitutional statv of tr,· challenged statutory provision. She held that the P-~ viaione o:: Section 111 (2) and (3) of tlle Act are violative of he c-,~1st-i.tv'.., '·:m. In the course of her diseent:ing ruling, she said: ; ;By: any__ standard the p_r_o_yis.ions_o_.. , L . P - _ ' - - - - - - - - - - ' - - - - - - - - - - -------------------· 8ection 111 (2) and (3) have been m·ade arbitrarily and the limitations impo,3ed in the law cannot be said to be rea,onably necessary for achieving a legitimate objective. The impression created by th0 r:-ovisions is that they are safeg·iards o: ~·:,terests of few people.:. Dc-.lj .1g with the argument of counsel fer the At ':or; ~'·r '}· )~- that the amount of money required to be depo<"dted as so,::·- ·.t:, .fc ~ costs is :1ot excessive 1 the learned Judge ·sa.;_d: ,;My views are that the amount bebg requi"'."ed to be deposited as security for :osts being excessive, it is only few people who can afford to pay. This means that ;he righ: to sue though given by the Const::.tution and the law concerned, will be c~u-tailed. Accessibility to ju.stice _will be open to only those who can af.ford to pay security for costs_, " ••• /8 ... i ';rhe appellant now says that Kyando and Ihemai JJ,, misdirected ~hehiselves in law in finding no merit ill his petition, and Kima.ro~ J,, was right in dissenting from that view~ Before . . us he was :represented by Prof• Shivji 1 who was assisted by MesBrs Maira~ Rweybn~eza and Magafu. The High Court's debision is impugned -0n thEi following six grounds of appeal: Th_e trial Ju~es erred in law 'and. in fact in holding that the right to access to C6urt as provided under Article 13 (1) of. the Constitution of the United Republic of Tanzania is fulfilled by simply filing the · p4-e:adings and payment of requisite Court fees. 2. The trial Judges erred in law and in fact in not holding that the principle of equality before the law as con.tained in Article 13 (1) 'and 13 (6) (a) of the Constitution of the United Republic of Tanzania means that all persons must have free access to Court and must be equally protected from discriminatory pre-conditions which curtail the right to be heard~ 3. The trial Judges erred in law end in fact in holding that the mandatory pre-condition of payment of J'sh~..,__000,0..9.9 as per secti.on 111 (2) of the Elections Act, 1985, is realistic, reasonable and necessary to achieve legitimate purpose of se,~uring Respondent's costs in a Petition without taking into account that the majority of Tanzanians are poor. • •• /9 • J 4. The trial Judges erred in law and :in fact in not hold:ing that implementation of Section 111 (3) of the Elections Act, 1985, is discriminatory in nature rather than an exception as natural persons are mandated to deposit security amount:ing to TShs. 5,000,000/::.: for costs unlike the Attorney General. 5., The trial Judges erred in law and in fact in not holding ~hat section 111 (2) and (3) of the Elections Act 1 1985, have been made arbitrarily and the limitations therein are unreasonable and unfair to the citizens of Tanzania. 6. The trial Judges erred in law and in fact in not holding that the mandatory pre-condj,tion for security for costs as provided under section 111 (2) of the ~lect~ons Act, 1985, operates as to stultify or curtail the right to fair hearing /.oiJ an ordinary citizen who cast his vote. Pro.f. Shivji argued 1st, 2nd, 3rd and 6th Grounds of Appeal toget'ner 1 and the remaining two grounds also together. Mr. Mwidunda, Senior ttate Attorney, who appeared, together with Mr. Salula, for the, respondent Attorney General, adopted the same method of pre$entation of his arguments• We hope we are not misrepresenting or failing to do justice to counsel if we seek to summarise their submissions, Dealing with Grounds of Appeal 1, 2 1 3 and 6, and citing Article 13 (1) and (6) of the Constitution; ~oogue v Secreta£~ of the Minis-g:y: of Irriga~ion:, Water Resources & Fo9§...f.2n.tr_oJ:. (l?ap.glades~l. and .. othe,r R.,09§1._J_ LRC 1; -~uz~8.!:..-~~gishnan v ••• /10 Pengarah L'll.i5resen !'legeri Sab~; anff ~Ap.dther ./}p,o§l, 1. LRG. 301 , a:mG11g_ o.tht!r:_ a,uth0:r-it:ies-,- t-1:l,~:clearned adv0cate for the appe.llant pressed us t•O· attach sp·ecia.1 jJllportance to the right of unimpeded access tP justice. In this conne¢ti0n, h~ ee,lled our _att:ent:iori: to .a nur.r.11:Yex- o:f passages :fr0m some judgments i'rQm vario"U.9 Ca$e.s 9 ~including Balakr.ishnan 's case supra ·m whicht s;p~~irlg :for t;b.e ::_Ai:· Court ,of A:p;peai o:f Malaysia'., Gopal Sri Ram,. JCA, ,said: \i ~ ~. u • .-. We are of the view that the libercy o:t an aggrieved pen,Qn to ·go t◊ cQurt and seek ~lief, ht¢1udifig ju,9,±cfai 2tevi~~ o.:t admirlistrative acti,.on, is one :of th~ rn~ facets of' the _personal. libi.,r;ty ~ua:t>a:ntee:d by__c?,~st~-(,.:.1t)~o~the::--"Fed.eraJ.--;G.onstitifti~-,-"- - - - - - - - - - --------------~W.~re it o:l;h~r:wis~, -the• prote~rtii.9n ai'fg).'.'ded by arts j t':i) and. 8 {1) t>f ,tB~ J!ed,!:'raii · d~nstihtti"on will be i11.t,;sory ·attd th~ language pf the $Ul)rerne laW n,o more .than high 1Somiding words of nii> ·pfic~i:¢ia.l signifiQance~u Prof. Bhivji eha.llenged . the constitutionality . of' S~ct.ien, 111 (2) or .the Act with. great .force, He submitt~d that the. statuto:cy p1tovision creates almost an insunnountable obstaclo to the exerc~e of the right o:t access t.<;; Justice beca-µse a tria.l gt· .~ el~.ction petition is made contingent upon :paying the cl.epositJ Ac.c0rd:µi.g to coun:se:1, the requirement, whieh leaves no d_iseretion in th~ court, is a violation of Article 13 (1) an:d (6) of the Co!1$titution:. Relying cm a ~$.age in tho .jud@nent of th~ Higll Oou,i·t of Hong Kong in Ua.l've.st Sheen Ltd. ~ .tmotp_!'r v Col1ector 0,:f' S:t~p :g~_v:.,etrµ~,, .aJHRLD.246, I I • i the learned advocate submitted that ~•if a litigant is entit 1 to a fair- trial 1 it must be implicit that the litigant gets '-:r trial in the first place.~• He went on to contend that a petitioner in an election petition cannot ask the High Court to 1 summon the aid of the provisions of Rule 11 (3) of the Rule~ his favour. The sub-rule provides: 1•(:3) Where on application made by the petitibneri the court is satisfied that compliance with the provisions of paragraph ( 1) or paragraph ( 2) of this rule will cause considerable hardship to the petitioner, the court may direct ·------------tha-t-------------- - - - - - - - . - - --- (a) the petitioner give such other form of security as the court may consider fit; or (b) the petitioner be exempted from payment of any form of security for costs: Provided that no order shall be made. "'"' 1, ·::- this paragraph unless an opportunity ~ad been given to the respondent, or, where there are two or more respondents, to each of the respondents to make rcrr;:;.:::6ntations in that behalf • 11 Prof. Shivji conte:rvied that a petitioner cannot now make e, application refer:red to in the sub-rul.e because, as the lea·~-- -1 advo9ate put it, the sub-rule has, by necessary implicatic-·.. ~.,,_ repealed by Section 111 (2) of the Act. Mr. Mwidunda's reSJ ; .,.•I these_a_~gurnel_lt§_ .}'!as_ ~ ~~om_I>r~j,_s~g_ o~e ~- He sou3ht to c 1 nbat the arguments by contending that Section 111 (2) of the Act doeR not in any way constitute an impediment to access to justice; what its provisions do is to bale.nee rights and duties of litig~nts in election petitions. Treat:ing Article 30 (2) (a) and (f) of the Constitution as the sheet-anchor of his response, the learned Senior State Attorney went on to submit that Section 111 (2) and (:;) WP ..~ enacted to ensure that the rights and freedoms of petitioners :in election petitions are not used to the prejudice of respondents in those proceedings as far as costs are concerned~ Accordi.."'lg to the learned Senior State Attorney, the provisionr:: of Section 111 (2) <'f the Act meet the test of reasonableness ni a reetriction on a fundamental right, laid down by this Court :..D. Ha.t;i§~~- does not disclose the criterion which was used in fixing five million shillin J:,S c>.s the amount of deposit to be made. Mr. Mwidunda further submitted that, contrary to Prof. Shivji 1 s abolished contentton~ Section 111 (2) has not the d:Lscretionary power of the High Court under Rule 11 of the Rules to direct that a petitioner pro-ride some other form of security or to waive the requirement to deposit Shs. 500/= as security for costs. According to the learned Senior State Attorney, the requirement of depositine five mill:'._on shillings does not limit the right of access to j 1 n°.;ice in elect50n petitions~ ~ 1 +,..,,.,. i,,;~ ,., •. '1-,-;Bsions on the 4th Ground of Appeal, Profo Shivji cor..tended that Section 111 (3) of the Act is discriminatory against ,. 1.irivate petitioner because the Attorney General, is exempted from being required to make a deposit for security for costs. Jlccording to the learned a.dvocate 1 whether the Government Proceedings Act is applicable to election petitions or not, the .../13 • I private petitioner is discrimi.-iated against because an aw~d for cibsts against the Government is most unsectlre. Mr~ Mwi<iunda's response to this argument was that s, 15 of the Government Proceedings Act protects the interests 0£ a dacreel41olckr,in a -cas~ against the Attorney General.; the -cos.ts ~f .such a litigant are more than secure. The learned Senior State Atton-1ey also sought to meet Prof. Shivji 1 s challenge of the constitutiona1 validity of Section 111 (3) of the Act by submitting that the d.is~rimination envisaged unde~ Ax-ti..el.e -1-3 ~~) 1>£. the c~tit:u.tion does not include the alleged discrimination in that Section because the vice frowned upon by tho .constitutional. provision is q~ relati.ng to lll'l.tur.a.1. persons-. In support of the 5th Grb1..U1d o-r .Appeal. 1 Prof. Chivji submitted that the requirement in Section 111 (2) of the Act, (1) it does not leave any discretion in the Court; (2) the amount was fixed arbitrarily. Putting it interrogatively, the learned advocate asked: Why t-1as not the amount fixed at 10 million shillings or at 50 million shilli..~gs? He reminded us that eosts ____ of litigation cannot reasonably be fixed before trial. He then ______v. Daudi _._..._..,._.....,__._.... went on to submit 1 citing Director ......of Public Prosecutions .,., ___ __ ._ P£,~,!:t /39931 T.L.R. 22, that a restriction on a fundamental right must serve legitimate purpose and has to be proportionate. According to the learned advocate, the net in Section 111 (2) has been cast too widely, and the statutory provision should, therefore, be struck down as being unconstitutional. Mr. Mwidunda, calling our attention to the fact that litigation costs have been on the rise in this country, valiantly contended that the sum of five ••• /14 . ' million shillings cannot, m the circumstances, be said to be - arbitrary. If the appellant fmds it impossible to raise that amount it is open to him, the iearned Senior State Attorney went · on to submit, to ask the High Court to invoke its discretion/ll'Y power under Rule 11 (3) of the Rules in his favour. It wiii be recalled that the learned Senior State Attorney had earlier contended that the provisions of that sub-rule are still in force. We propose, before coramGncing to ~tnino ~ .correctness or oth~.130 ~£ counsel I s arguments, to allude to general principles governing constitutional interp~tati"n ~ in our op,ini<"'n, are relevant to the determination of the issues raised by cowisel in ~,...this-a.ppea-l-.-These-p~inciples_may_, __ jn_ the ___jp. teres ts_c:i f__Erev~ty, - be stated as follows. First, the Constitution of the United n~~bJ_ic of 'J!mizania is a l:i -ji.ris inst..rumei:rt 1 bavin,g ~ .soul and consciousness of its own as reflected in the Preambie and ~ n t a l Objectiv~s and n.:r.ective Principles o.f State- Policy. Courts must, therefore, ende~vour to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purposes for which its makers framed it~ So construed, the instrument becomes a solid foundation of democracy and rule of law" As was correctly stated by Mr,, Justice E,,O. Ayoola~ a former Chief Justice of The Gambia, in his paper presented at a seminar on the Independence of the Judiciary, in Pent - Louis, Mauritius, in October 1998: nA timorous and unimaginative exercise of the judicial power of constitutional interpretation leaves the constitution a stale and sterile document •• : ••e/15 Seeond.1y 1 the provisions touching fundan1ental rights have to be interpreted in a broad and liberal manne-r, thereby-jealous-ly -- protecting and d~veloping the dimensions of those rights a.11d tinsui'j,ng that our peCiple enjoy their rights, cur yow:i.g .di.1m.oc:racy ~ t ...~,. tu.not~ l:U.• 1''.l.tJ... =-~, ~- tha ~il!. -~ ~ t aspirations of the people prevail. Restrictl.bll5 ()n. .:tundtunefital. rights must be strictly construed. Thirdly, until the contrary 4~. ~lllollP'Ad,. 4 J . e ~ 1 ~ ,S.Q pl.'0£;l\lZlled t.o be constitutional. It is a sound principle at· con,s-c3.,t....t-.tQn--t ~ ~ - ~ t 1 ~~ possible~ a legi.slation should receive such a construction as wilJ. make it oper6:tive and not ~rative. Fourthly, sin09 1 ~ .sta-ted a short while ago, there is a presumption ..Qf ~ , a . ; ~ ~ of - - ------- --------=- a 1.ao;:islationr ~v~ whe.~ ?:I. c4wb?.Ck.- o:r ~:t;u:s.ioo:c:~-iJ;_--r-ai:±e-d-- - - --_. - _ upon as a basis for constituti~nality of _the legislationt the onus is upon those who challenge the constitutionality of the legislation; they have to rebut the presumption. Pii'.t.hl.v., w ~ th-Q§~ ! : i ¥ ~ ~ , ~xc)..vs.ion, c)..ause in doirig so, the onus is on them; the~ have to justify the restriction. to <la~ witii the arguments addressed tt'I us. Convenience, we think, requires that we commence with Mr. Mwidunda's argument on the true application of Article 13 (5) of the Constitution. It will be recalled that it was the learned Senior State Attorney's submission that the provisions of the sub--article have nothing to do with discrimination against juristic; persons• Who, we ask1 are the intended beneficiaries of the principle of equality before the law 1 embodied in Article 13 of the Constitution? Mr. Mwidunda 's answer would be: Nat~al persons onll• According to the learned .../16 16 .' -Sen-ior-State_Attorn_ey'L~ubm~sion, the principle does not relate to juristic persons or collective bodies. We have given anxious and careful consideration to this submission and in the upshot we are of .the settled opinion that, though not lacking in att~~ctiveness, -~· ' it is without merit• But, first, 1.et us quote the sub-article. Correctly £U1d literally translated the provision should read {we ~ k . too official. ~a:oslat:i.Qn of i~ i$ ao-t ~Q1y cor~eoi.): t1(5) For the purposes of this Article the expression ''discrimina:t-4l;i ~ to sa;tisfy the needs, rights or other requirements -o-:! nif.ier~n-t perso.g.e,. QP. the:· bas~ of their nationality, tribe, place of origin, political opinion, colour, religion or station in life such that certain categories of people are regarded as w:--.:a}:-_ or inf'er:k:>r :W-.si. b Q ~ ~@~~ a,cr restrictions or conditions whereas persons of other categories are treated differQntfy or are accorded o ~ i t . i e s or advantage outside tha -specified conditions or the prescribed necessary c'"'11r1;_tions, provided that the expression "discriminate• 1 shall not be so const-rued as to prevent the Government frOtll taking deliberate steps aimed at solving problems in society.\. ( the underlining is supplied) The language in this provision has exercised our minds considerably; · but in the end we are satisfied that the use of the word ~•and;' immediately after the word "inferior'' could not have been intended, for, so read, the provision would not make much sense. The framers of the Constitution, it seems to us, bearing in mind the wording of theprovision, -intended- the-pFov-ision_ to _c_ompX'....is~ tw~limbs ~ They ••• /17 must I therefore, have intended to· use the word '·or" :immediately after the word "il'lferior" • If that word is taken to be used. there, it cannot be doubted, in our opinion, that the definition o:f' the expression H<iiser:iminate"; in the :provision also embraces juristic persons and collective· bodies. We ar.e emboldened in the view that t~e definition was not intended to relate to natural persons only by the fact that, while :in Article 12 of eoo, ~ t i . t u t ~ ~ £,,.OPitOrs; fls4d. t h e . - ~ • ~ · ~ he:i.r1gs••, in Article 13 (4) a.~d (5) they chose to -µse the expression "person/s 1'• The use of those two different expressions strongly suggests to us that the framers intended to make a d:istinction l;>etweeJi the beneficiaries of the principles underlying the two might be subjected to. While we recognise that the wording of a 't'elG»v:nit con.stitutional,-provision is important in determining whether the Coru.titwt.ion ~reats juristic peraons iID.d ~oUective bodies as beneficiaries of the principle of equality before the law, we wish to draw attention ,to a footnot-i, in the book 1 The Irish Q..9nstit~, 3rd ed., by J.M. Kelly and Gerry Whyte, in which the learned authors disclose, at P• 722, the way the courts in Germany and Italy have applied the principle on the aspect of beneficiaries. The footnote, No. 53, reads: 1'The position reached in Ireland, on the mere strength of a narrow interpretation of the phrase ,;as human persons 11 , should be contrasted with that reached in Germany and Italy in respect of the \;equality before the law" guarantee in the Constitutions of those countries. In both jurisdictions ••• /18 it has been for many.years clear that juristic as wel:;_ as natural persons are entitled to the benefit of the rule: and ( in Gennany) th&...; even groups with no legal pen:3onalitv, such as political parties, may rel.· on· it.. The concise -- - -- - - reasoning _of ±he_Itc1.lian_C_onstitut.ional___ _ Court in a case about associations for the assistance flf iisabled persons may be cited: iAn un~ustified .discrimination 1 between the diffe:-:-ent associations must inevitably have r,percussions on the legal sphere of L1e members , and so must am·ount, even if c 1.ly indirectly, to a violation of the ~quality ()f the citizen'' (Corte constituz~·- ·nale 1966/25). It is true that this conclusion is facilitated by Article 2 of the Constitu .... ;o-.,_. which guarantees the ilrri...,lable rig·· t of man 11 whether as an inc'i vidual 1 or in the socic\l formations ~n which his personality unfolds 11: but this ·.s simply a hr:1nrl .:oma pleonasm. The very· word ;;citizen~' carries within it i-.he recogniti.on that the subjects of th· leP--"11 i:::•'":·~--n e-vigt· within a society,,; In an appr·,-pria.te · case a juristic person may, in our opinion~ comp;tain before the High Court of a vi0le.tion of the principl· equality h ~~re the law. 0 We observed at the begi:n.ning of this jud@n· nt thatt E•· this appeal is about access to justice o That ri'~ht has, f,: "~ long time and in nany jurisdictions, been regarc',ed as one c· most ini:!:')()r+:ant rights a person is entitled to enjoy_ in a de· society. Even in England, where, consistent with the doct:-:. ••al Parliamentary sovereignty, legislative powers of Parliament have been regarded by courts to-be--unlimited, the right of access _to_ . justice has been jealously guarded by the courts. More than eighty years ago 1 :in In Re_ Boa1-er flr":U 1K.B ••cU,. S-erttt~, .J •-~ emphasised the importance of· that right. He said, at P• 26: 1 •0ne of the valuable rights of every subject of the King is to appeal to the King in his Courts if he alleges that a civil wrong has been done to him, or if he alleges that a wr~:>ng punishabJ.e criminally has be~n done to him or has been committed by anothe~ subject of the .King. This right is sometimes a,.bused and it is, of course, quite c.arnpetent ----,--------'-------- t p .. Parliament to deprive any suoject·of t h e - - - - - - - - - - - - - King of it either absolutely or j,n. part. But the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least erroneous meaning unless clear words are used to justify such extension.;• The importance of the right r..as. also been emphasized in many other English cases, including Cheste=E._, V:..Eateson Ji.9.?§1. 1K~.8f9;, R.• &, W. E_~~J!.t~-,~..,~...Y..Jhe Wheat Commi.ssion_Li9.3V A.f~- 139; P;:os, ~r~ite £2• Ltd., V · Mini(:?tr_y . 9.f- Housing and L~cal .G<?_y~_~ent .and_Others _.fi9607 A.C. 26Q, and R~xr!iond y:__!Ion~.,;y.J.l98JL~£if.• In "fJ[;x, Gz:~~e Co. 1 § case (§PJ?I~) t Viscount Simonds expressed the emphasis in the following celebrated words at Po 286: •••/2D 21 mean:ingloss, and injustice aild oppression would become the order " of the day o About two years ago, ___d~li verin_g _her judg111ent. in with which -the rest oJ the members of the Constitutiona._l Court of South - '·'The right of access to court is indeed foundational to the stability of a._71 orderly societyo It ensures the peaceful, rGgulated and institutionalised mechanisms to resolve disputes, without resorting to self holpo 'I'he righ_t_ oLcJ.~_c_e_ss_to-cour,-t-is a - bulwark ---------- against vigilantism, and the chaos and. anarchy which it causes. Construed in this context of the rule of law and the principle against self help in particular, access to court is L~deed of cardinal ~nportance. As a result, )very powerful considerations would be required for its l~nitation to be reasonable and justifiable/ Access to courts is, Lmdoubtedly, a cardinal safeguard again.st violatioi:'..S of one 1 s rights, whether those rights are fundamental OT. not•. Without the,t right, there can be no rule of law 2.nd, th~refore, no democracy. A court of law is the ;;last resort of th0 oppreesed and the bewildered. Anyone seeking a legal remedy should be able to knock on the doors of justic0 and be heard. We deem it logical, before examining the question whether Uection 111 ( 2) of the .Act is violative of Article 13 ( 2) of the Constitution, to deal first with the issue whethert as was very manfully contended by r'iro Nwidund.a., Hulo 11 (3) of the Rules, as rrl i bv ·th8 Elections (Election Petitioc!.s) (Amendment) Rules, ., 1 cnr1 the Elec~fons (Election Pctitio.i · '! , ·.mendment) Rules, , .. ;1j_l in force.. Prior to the .enact1 ')llt of the Section, th~ m_gh 8ourt had a discretionary power to direct either that a p0tit:l---n,t" in a parlie.menta.ry election petition give such for-m , f secJ..r:'.ty :' t considered fit, or that the petitioner be exe!'llpted .t:::i.-; ~-~1te::~-.-~ts of clarity and for the sake of' comp1et!?lr. ~e:j,to quote in e:xtenso. the Rule .,.____,_,_-~ It reads: 11. - ( 1) The Registrar shall noi: fix a date of the hearing of any petition unless the petitioner has paid into the court, as --------------secur-i-ty-for-cos-ts-,-a-sum-o-f-f-i-ve-huxrdred shillings in respect of each ~estondent4 ( 2) \1here any person is med0 ,. 'nt pursuant t0 an o:. U:\;,;~· oi ·;_;t1:; co.,_. tho petitioner shall within such ti.i1e c1.s the court may direct or if the cout''7 · .:: not given any direction i':1 that be ..., '.- vii thin se-ren days of the date on which the order r1irecting a person to bQ joinecl. 2.s a respondent is made, -:.~1.y into t:~ :::c: -~ n. further sum of five hundred shillings in respect of such pe'.".'soi:_i. (3) Where on application made b•r J,.:. petitioner, the court is satisfied that c.".>mplianGe with the provisions o:;: ~::':l.ragraph ( 1) or paragraph ( 2) of this ".'Ule wi.11 ca.use· ,..~"'"'~~- ..... :-_,.__ .. · l-o the petit:faner, the court may d;rect · that ... • •• /23 .-,,.,,j rn,.Jhere a later enactment or a _,;I subordinate legislation is so inconsistent with or repugnant to an earlier enactment or subordinate legislation that the two cannot co,,exist, then the lattE:lr one would effect repeal of the former by implication~" A later Act can~ by i~plication, restrict the scope of a regulati.,,n which has been brought into force under an earller Aot: Kruse v Jon,uson / 1 § ~ ! per Lo:r.-d Ifossell of Killowen, CJ. We readily agree with Profa Shivji that Section 111 (2) of the Act has, by necessary implication, repealed Rule 11 (3) of the Rules. rrParriament-na:a.----:--mten-de·d-that-the-H-i-gh-Gourt-00n-tinue-ha.v-ing----------- the power it had under the sub-rule, it could easily hava added a provision :in the section identical with or similar to the sub-rule or one s~v:bg the aub-:rul.e. It !5eents clear that the law - making authority wanted to abolish the power and make it a rule without exception that each petitioner, regardless of his .firumc.ial standing, must deposit the sum of fiv-e million s h i l l ~ ae s,ecurity Sar ~ost..c, beforF- hi'.:' :::-,,tition can be fixed for hearing. We have no doubt that the subsection and the sub-rule are inconsistent with each othert and, therefore, they ca.'1Ilot co-exist or stand together. For the reasons we have given, we have reached the unhesit_..~.;.,...,- .-.~~- ... ··-.:~...., that; contrary to the views expressed by Kyando and Ihema~ JJ q on the point in their ruling, Section 111 (2) of the Act has, by necessary implication, repealed Rule 11 (3) of the Rules, and, therefore, the High Court no longer h~S the power to prevent or mitigate the rigours of the subsec'tion by directing ,•••/26 (a) the petitioner give such other ,, form of security as the c-ourt may consider fit; or (b) the petitioner be exempted from payment of any form of security »for ,cost-s: ...,. Provided that no order shall be made under - this paragraph unless an opportunity had been given to the respondent, or, where there arc two or more respondents, to each of the respondents to make repres·eritations :in that behalf., ------- ---f1f)~osec-urity-for-00s~s-ahall_b~_p]!yable by a petitioner who has been granted legal aid under the Legal Aid Scheme of either the Faculty of Law, University o.f Dar es Salaam, the Tanganyika Law Society or the Tanzania Women Lawyers I Associatio:p.. 1• Drawing our attention to the f~ct that the Rules \vere. saved by. s • 129 (b) of the Act when the legislation under which they were made was· repealed, Mr., Mwidunda strenuously argued that subrule ( 3) was not repeal8d or .=ended by th.;} Electoral J ,aws (M isc-eJ laneou.s Amendments) Act, 2000, and is therefore, still in force. By that Act, Parliament enacted, among other things, Section 111 (2) and (3), the constitutionality of which the appellant challenged before the High Court. As already pointed out, Prof. Shivji pressed us to hold that the sub-rule was, by necessary :implication, re-pea.led by the Section,. ••• /24 !n spite of the soldierly courage which he demonstrated while arguing this point, Mr. Mwidunda has not succeeded to persuade us that Rule 11 (3) of the Rules is still in force. We entertain no doubt that ·Prof., Shiv,ji 'e eon.-tent;on- that the sub•rule is no longer in force is incontrovertible. Why do we hold that view? That we will tell. It is an established principle of common law that rules must be read together with their relevant Act: see A.G v De Keyser'!? RoyalJI,Qj;el L1_2?.9] ~ - 268, ,22.l, per Lord Moulton., Rules cannot repeal or contradict express prov:isions in the Act from which they derive - - -- - - - that point in that case, James, L.J ., 'said, at P• 529: ••If the Act is plain, the rule must be interpreted so as to be reconciled with it, or if it cannot be reconciled, the rule fll-.U:?-t.Ai VEL~~!t.L..t.<1..•th,e-E..l~in_te__r~ £!_~~--~~-~<>"' ( the emphasis is ours) It is also a we llL•es cablished principle of law that where an Act passed subsequently to the making of the rules is inconsistent with them, the Act must prevail unless it was plainly passed with a different object and then the two will stand together: BriJ.L_v_ Buckin~ cg h9f:i.Y... 1 Q ..B.77, 78. In their book1 Interpretation of Statutes and Legislation, 7th ed, at po 157, Mahesh Prasad Tandon and Rajesh Tandon make the same point by say:ing: 0 •• /25 either .that-a- petitioner give such form of security as it considers fit, or that the petitioner be e~empted from payment of any form of security for costs. Therefore, unless we are satisfied that the subsection is not, as submitted by Mr. Mwidunda, violative under any circumstances, be heard or tried before the petitioner pays into the High Court, as security for costs, a sum of five million shillings in respect of his petition. It must also be correct to say, as we do, that the provisions of su.b-rul.e (4) 05 Rule 11 of the Rul.es have aU'CTt b;t n e c e ~ ~ ~ been r~p&a.J.,;,d by Soc.tion 111 .(2) of the Act. It will be recalled that - - -- - - sub-rule7 1D-exemptea-a-petitioner-who--was__ g.r:gD.ted legal aid under . -------~~------- the Legal Aid Scheme of the Faculty of Law, University of Association from paying security for costs :in respect of his petition •. It mea.ns that now even such petitioners must deposit arrived at these conclusions, we must now turn our attention to the question whether subsections (2) and (3) of Section 111 of the Act are unconstitutional. Keeping :in view the principles of constitutional interpretation we alluded to e.arlier, can it be said that those statutory provisions are violative of Article 13 of the Constitution? Prof. Shivji valiantly attacked Kyando and Ihema, JJ's conception of the right of access to justice. Referr:ing to the requirements for paying or depositing security for costs under Order 25 Rule 1 (1) of the Civil Procedure Code and Section 111 (2) of the Act, the learned Judges said: •••/27 .. ,_ -- , ~ -.,~. ~.' ~•... :..:':'.',~~~·..::----',.~-- .. >·.,• ,: • * ~ - - . --~• .. !i'•· I••. -,~ .1, -""' • . .· i ... ' -,-. - -· ! :.:.. ·_ . ' 1i1t is _pertinent to note that in both situations the party required to pey- or . deposit security for costs will have already accessed to the Court by filing hi:;/her pl.ead:i.ngs an.d paid the necessary court fees •ii With great.respect to the learned Judges, we cannot agree t~t access to justice constitutes mere filing .o.f pleadings mid paying the required 'court-fees. The right to bavP- reoour,;.-e or ;iccese tQ eourts me~ more than that. It includes the right to present one's case or defence before the courts. It cannot, the~efore, be o~~ '9"0 ~q th~t once bo tiles his petition a petitioner in an election petition has enjoyed the whole of liisrignt--o-f-access-to;-------+--- justice. Access to justice is not roerely kno-4-.king ou the door o! a court. It is more than that. being absolute is to invite anarchy in soc.lety,. Those rights can be limited, but the limitations must not be arbitrary, unreasonable and dispropos-tionate to any claw of Stat-e- :lntorGst: see Pumbun I ....... s ~ ~ case su:pz;a. Under the Constitution, an individual's fundamental right may have to yield to the common weal of the society. What is observed by Dr. Durga Das Basu in his book, Shorter Constitution of India, 12th ed., at P• 104, in connection with the Constitution of India is entirely applicable to our own Constitution. The learned author states; •••/28 .- 28 ... - ,,. i;There cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint for-that would lead to anarchy and disorder. The possession and en-j0Yn1ent of all rights_ are_ subje_c_t to such £,.easonable conditions as may be deemed to the governing authority of the country to be essential to the safety, health, peace, general order and moral of the community. Ordinq.rily every man has the liberty to order his life as he pleases, to say what he will, to go where he will, to fol.low any trade , occupation or calling at h_is pleasure and to any other thing which he can lawfully do without let or hindrance by any other person. On the other hand, for the very protection of these liberties the society must arm itself with certain powers. What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control."' Personal freedoms and rights must necessarily have limits, for, as l.iearned Hand also rightly remarked in his eloquent speech on The Apirit of Liberty, cited by Khanna, J-., in his judgment in l!,:!-s [c,liness _Ke~,av~anda 1.2!?:~~~i Sripad~_Malavaru v _S~9..f....!(er.~¾ and Anothe_;:_l1·21~?_s_upp. S .9_.1<..:1: '•A society in which men recognise .c10 check upon their freedom soon becomes~ society where freedom is the possessi~1 of only a savage few •• •" •••/29 (_. ) - -ProI; Sh-ivJi- submitted, as-will be :i:-ecalled, _that .Se_ction 111 (2) ., of the Act is arbitrary and violates the principle of equality because 'it unreasonabl,y classifies petitioners into two groups: those who can cause the Registrar of the High Court, by l)aying a deposit of the sum of five mill.i6n shill,ings as security for ~gst~• to fix the bearing dates of their petitions, ·and those who can only sit by as they watch the files of their petitions-· accumulate dust because they cannot pay the deposits and there are no statutory provisions which empower the Court to waive the requii:'ement to make the deposits. While he appeared to concede that Section 111 (2) of the Act Constitutes a restriction on the - - - - -- - - ----------------- right of access to courts, Mr~Mwidunda contenaea-tnat-,havin-g------------ been passed to protect respbndents :from frivolous or vexations petitions, and to ensure that those litiga.nts recovered their expenses incurred while defending themselves if eventually the :petitions are dismissed, the statutory provision cannot be said to be a.rbi'h-Q,ry or unreasonable. What is the test of reasonableness in this context? We !ind the observations of the Supreme Court of India in ~.Elt.e .of. !1~~~as ,vr Y.~• ,R<?.!f fi95il_ SCJl. .,5-2.'Z -v-er:, helpfuJ., if may we respectfully say so, in answering that. question. Speaking by P.atanjali Sasitri, CJ., the Court said, at p. 6o7: ,JThe test of reasonableness ... should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down a.s applic~ble to all cases. The nature of the right E\lleged to have been infringed, the underly1ng purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the •••/30 _,,W 30 .,,. .r, • disproportion of the :imposition, the prevailing conditions at the t:ime, should all enter into the judicial verdict. 1; We aliio find ve_ry- usefttl-the...:follqwing,y.?Ssa-ge "fr~ the judg'I;nent ~ - ·,.oc,. .. ~:..•. -· ii. : ----:-....,..,,....-;:, of Barnett 1 J. t in !farvest Shean Ltd. 1 s case su12r~, at P• ·13: " •• • the Court must be satisfied,. firstly, that the li.T.itations applied do not restrict or reduce the access /J,o the courti} left to the individual in such a way or to _such an extent that the very essence of the right is :impaired .. Becondly 1 a restriction must pursue a IegiT:ima:te~----------- a.im and there must be a reasonable relationship of proportionality between the means employed and the a:im sought to be achieved •••• ; App1yins the test stated fa these two passages, we are of the settled opinion that Section 111 (2) of the Act is arbitrary. According to subsection (1) of the Section, an elaotim1 petition may be presented .by,· among others, a person who lawfully voted or· had a right to vote at the election to which the petition relates~ Many of such voters would be persons who cannot possibly raise e:ven one-tenth of. the required five million shillings as security 'for costs or for any other purpose o Bearir;lg in mind the minimum wage in the Civil Service, which we can take judicial notice of under Section 58 of the Evidence Act, 1967, a minimum wage-earner will r.equire literally more than all his eight years• wages to pay five million shillings. When this fact is borne in mind, it cannot in our opinion, be disputed that it is utterly :impossible - -- - - -- ~ -- -- -- ~ -for-an- -ind-igcn t_ Jl_o_t_~:r:. j:_C>_p~;y-_ J_ive mil lion shillings as required by Section 111 ( 2) of the Act., . The statutory provision, there fore, Is the infliction of this extreme disability on an indigent voter or candid.ate justified? We have no hesitation in answering that· question in the negative.. Mrc- Mwidurida strenuously contended that the provisions of the statutory provision are justified on the groupd that they prevenl the filing ·of frivolous or vexatious petitions and also they ensure that respondents in election petitions recover their litigation expenses in the event the petitions are unsuccessful., We find no merit in this argument<') First, fundamental rights and costs of litigation should not be weighed in the scales against each other,. Secondly, we think is partly to be found L."11. a statement by Lord Macaulay in his criticism of a preamble of a Bengal Regulation of 1795 which purported to justi£y coUT.t fees on the ground o:f discouraging frivolous variety of litigation,, The statement, quoted by C.Bo Srinivasan in his book 1 Towering Justice, at Pe 38o, reads: i; o ,.:, It is undoubtedly a great evil that frivolous and vexat~ous suits should be instituted., But it is an evil for which the Government has only itself and its agents to blame, a.Yld fo::c which it b..as the power o:f proving a most c-fficient remedy. The real way to prevent unjust suits is to take care that there shall be just decisiona No man goes to law except jn the hope of succeeding. No man hopes to succeed in a bad caus'C' unless he has reason to believe that it will be determined according to bad laws or b,id ,judges., Dishonest suits will never b~ common un1.e,;:;s the public entertains an - - --- -- -- - - -- -- -- -- -urrfavourab-1:e -opinion- of_ the- admini.s_t.r-.~tt~:g. ______________ _ of J;ustice .. r. ..../32 •1-- Thirdly, as was pointed out by Mr_. Justice (ret'd) Chandr,achud in his article, Fundamental Rights in 'l'h~ii- Economic Soci:l.l and Cultural Context, published in the journal of Developing Human Rights Jurisprudence, at P• 142: 1 'The fact the.t a forum for just•ice is misused does not justify the closing of the doors of justice. 1i Abolishing; the right of an irn;ligent J?etitioner to apply to the High Court for a' direction that either he give some other form of --------- security, or he be exempted from payment of any fonn of security ----------------- f.or costs .• ~d repe~l5.11g the provisions of Rule 11Cl+)o:r--·ni:e-:au::i:-e:s--------._ which provided that no security for costs were payable by a petitioner who had been granted legal, a,;i.,d under the Legal Aid Scheme of the Faculty of Law, Univ~rsity of Dar es Salaam, the Tanganyika Law Society or the Tanzania Women Lawyers t Association ~<>UA-t, in pro.ctic~l termo a to closi:ne: the doors of justice to such seekers of legal remedies. To such petitioners, the right of access to justice becomes mea.n:ingless. Be that as it may 1 there appears to be no explanation why the so-called protection of respondents is not made available to respondents in litigation not aris:ing from elections6 The repoal of Rule 11 ( 3) and ( 4) of the Rules has, as we have endeavoured to demonstrate, effectively classified those who are aggrieved by the results of a parliamentary election and have a right to file a petition before the High Court :into two distinct groups, namely, those who, because they can afford to pay a deposit of five million shillings, will be able to have their petitions o•a/33 heard oy the -coU1~t, -and-those who,-as-a_res_ult_of _tl:i,eµ-_~~er-t1 l_ the doors· of justice will be firmly shut agn:i.rist them. It is n-·t · · a principle of the law that all laws must be of universal application or that the state has no power of distinguishing or classifying persons or things for the purpose of legislationo What the law demands is that any cla~sification or difforent.:_3+-' ·n must have a rational nexus to the object sought to be achieved by the legislation in question.. What is forbidden by Article 13 of the Constitution is cle,.ss legislation and not reasonable classi:tcation. The legi.slative power to make differentiation or classification is important, for, as Prof. M.P. Jain states in his book, Indian Constitutional Law, 4th Ed., at p. .. 1'!.11 persons are not equal by nature, attai..,rnent, or circumstances. The varying needs of different classes or sections of people require differential an~ separato to~ l with diverse problems arising of an inf;~ 1·9 variety of human relations. It must 1 therefore, necess~~ily he.ve the power of making laws to attain particular objects and, for that purpose, of distinguishing, selec-'--'ng and classifying pP.rsons and thine:3 upon which its laws Dre to operate.;; It is, of cours3, for the courts to d0c ide whether a classification adopted by a law is reasonable or note The judiciaJ antennae must to cmsur~11.g tha_.; the classification is rational. To be aEsurcd of a t-:~:.. 0 •• ;; a country must have its foundations of justice and equality -: ,,'y --- -- -- - - - - -- -- --and- -fi-rmly- laid. __ l_t__ ~ _'?alutary to remember - and here we gracefully --- -- - - - - -- -- -- .... i - . adopt the words of Rahman, J. 1 iriJ'aroog~e's case supra; at p. 28, as our own: 11 If justice is not easily and equally accessible to every citizen there then can hardly be a rule of law. If access to justice is limited to the rich, the more advantaged and more powerful sections of-society, theh the poor and the deprived will have no stake in the rule of law and they will be more readily available to turn against it. Ready and equal access to justice is a sine qua non for the maintenance of the rule of law. ~----;-:----------- Where t"nere is-a-wr±tten-Gons-t-i-tu-t-ion-and_an ______________~ - - independcnt judiciary and the wrongs suffered by any section of the people are capable of being raised and ventilated publicly in a court of law there is bound to be greater respect for the rule of law,.r, Frivolous or vexatioUB litigation is!! un<ioubtedl.y_,. a detestable th.:i.n.g... But the right way to deal with that evil is not to close the doors of justice, but to depend upon courts invok:ing their inherent or statutory jurisdictions to strike out actions of that nature. The doom of justjce must always be left open even to the poorest man or woman in. the country .. Section 111 (2) of the Act is likely- to stultify p£!1_0ide petitions from indigen+ !)(~"!:'Sons,. Having paid due attention to counsel's arguments, we are satisfied, for the reasons we have endeavoured to give, that :{C__yando and Ihema., JJ.,, erred in holding, as they did1 that Bec'eton. 111 (2) of the Act is not unconstitutional. In our view, the ---- -- -- ---- -- --s-tatutory__pr.ovisj.._o_J::! -~- -a- -class legislation. ----- -- - - - ~-- It is also arbitra17 and the lif()itation it purports to impose on the fundamental :r-ighe ••• /35 of access to justice- is more -than is-!'-easonably _!le.c.essary__to---8...C.hie-v-e------ . - - -- - -- - - - - ------ the objective of preventing ab~se of the judicial process. Plainly, Pariiament ·exceeded its powers by enacting the unconstituti.qnal provision. Legislative competence is limited to making laws~ich '· :are consistent with the Constitution.. These conclusions are ' ~~ . sufficient · to dispose of the appeal, b~t we coriside~ it useful "- to say a word or two on the arguments addressed to us concerning the exemption granted to the Attorney General by Section 111 (3) of the.Act. The importance of the role of the Attorney General in his capacity as tlieguard·i-an-0-f__:publi_c interest cannot in our opinion, be over-emphasizedo But the problem arising from Section 111 of the Act is not that -the· statutory provision ·purports to exempt - -. the :Law Officer from giving security for costs, but, by repealing Rule 11 (3) of the Rules, that it purports to dep:i--.i,.ve a petitioner of his right, under the sub-rule, to apply for an ~xemption. As . ', far as_l.egialat-ive discrimination is_ concerned. what is-dec~ive is not the phraseology of the statute but the effect of the legislation. However, since we have held that subsection (2) of the. .Section..a.is--unconsti.tu.tionai.:. it --follows, as day f'.ollows night, that Rule 11 (3) is still in force, and, ther~fore., a. petitioner still has a right to apply for an exemption. In prac¾ical te::-m·~, there,rore, an ordinary petitioner cannot be said to be'_subjected' to discrimination by Section 111 (3) of the Act. In the circumstances, we agree with Kyando and Ihema, JJ a, thoiigh for different reasons, that the subsection is not violative ,:of thE; \ provisions of Article 13 (2) of the Constitution. '~'- o•o/¼ .. • ·,"\. __ ·.. \',· . ·' For the foregoing reasons, in our opinion, this appeal must succeed. Allowing the same with costs, we reverse the decision of the High Court and declare that Section 111 (2) Of the Elections Act, 1985, is unconstitutional and, therefore, devoid of ahy legal ., I force ~b_,,i.r_i!:io,. that is to say~ from the date of its enactment. For the avoida?lce of doubt, it must be distinctl:y stated that, since the subsection has been so declared, the provisions of Rule " 11 (3) of the Elections (Elections Petitions) Rules, 1971, ~ amended, are still in force and, therefore, the powers conferred upon the High Court by those provisions may~ in appropriate cases, be invoked by the Co'urt in favour of petitioners. One of the l· " i._, -~ -------------------r_eaulj;E__Qf Section 111 (2) being struck down for being unconstitutional security for costs in a parliamentary electicn .:petition is still five hundred shill:i.."lgs • Bearing L'l'l mind the decline of the value of the shilling which has taken place since 1971 1 when the Rules were made, it cannot be disputed that that sum is now too little to serve any useful or practical purpose in terms of providing security for costs, but it is not within the ,,competence of this Court or any other court, for: that matter.i to amend the Rules- DATED at DAR.,.ES...SALi\.lli"l this 14th day of February:, 2002, B .il. ~ bf.,_t'ViA'I'TA CHIEF ,TUSTICii.; KffS .. K,,LUGAKI.t"WIRA ~USTICE OF APPE~ this i.s a true copy of the original e . •··.it'·:·•' ~t)li ,,1,c:, ;; •.·• · ,;~