misc No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF

TANZANIA (DAR- ES SALAAM SUB - REGISTRY) AT DAR-ES SALAAM MISCELLANEOUS CAUSE NO. 21253 OF 2024

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977 AS AMENDED FROM TIME

TO TIME

AND

IN THE MATTER OF THE PETITION TO CHALLENGE THE CONSTITUTIONALITY OF THE MINISTER, PRESIDENT'S

OFFICE REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT TO CONDUCT, COORDINATE, OR SUPERVISE

ELECTIONS OF THE LOCAL GOVERNMENT LEADERS IN TANZANIA 2024 AND IN THE MATTER OF ARTICLES 74(l)(5)(e), 74(11) OF THE

CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977 AS AMMENDED FROM TIME TO TIME AND IN THE MATTER OF SECTION 10(1) (C) OF SHERIA YA TUME HURU YA UCHAGUZI 2023 AND i IN THE MATTER OF SECTION 87A (1) (2) OF THE LOCAL GOVERNMENT (URBAN AUTHORITIES) ACT, CAP. 288 [R.E 2002] AS AMENDED BY WRITTEN LAWS (MISCELLANEOUS AMENDMENT) NO. 02 of 2009 AND IN THE MATTER OF SECTION 201 A (1) (2)(A)(B) OF THE LOCAL GOVERNMENT (DISTRICT AUTHORITIES) ACT, CAP. 287 [R.E 2022] AS AMENDED BY WRITTEN LAWS (MISCELLANEOUS AMENDMENT) ACT, NO. 2 OF 2009 WALLACE MAYUNGA................................................... PETITIONER

VERSUS THE MINISTER, PRESIDENTS' OFFICE

REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT.............................................. 1st RESPONDENT THE ATTORNEY GENERAL...................................... 2nd RESPONDENT

RULING Date: 12th November, 2024 BAHATI SALEMA, J.: The Petitioner WALLACE MAYUNGA has moved this court by way of an Originating Summons made under the provisions of Articles 26(2), 30(3), and 108(2) of the Constitution of the United Republic of Tanzania, 1977 as amended (henceforth the "Constitution"); Sections 4 and 5 of the 2 Basic Rights and Duties Enforcement Act, Cap.3 [R.E 2019] (henceforth "BRADEA"); and Rule 4 of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014. The craved prayers are for; - a) Declaration that it is unconstitutional for the 1st respondent to supervise, conduct and coordinate Local Government Elections of 2024; b) Declaration that the provisions of sections 4, 56(3), 57(1) (2), (3), 146(1), (2) and 201A (1) (2) (a) and (b) of the Local Government (District Authorities) Act, [Cap.287] are unconstitutional and inconsistent to the spirit of having an independent National Electoral Commission; c) Declaration that the provisions ofsections 16(4), 19(2) (a) (b) (c) and (d), 19(3), 4 and 5 (87A) of the Local Government. (Urban Authorities) Act, [Cap.288] as amended by the Written Laws (Miscellaneous Amendment) Act, No.2 of 2009 are unconstitutional and inconsistent with the spirit of having an Independent National Electoral Commission; d) Declaration that the omission of the parliament to enact a law to operationalize section

10(l)(c) of the Independent National Electoral Commission Act of2024 is unconstitutional; e) Any other order(s) as the court may deem fit to grant. Briefly, the basis of this petition has been stated and averred in the originating summons and an affidavit of the petitioner respectively. The 3 petitioner challenges the validity of the 1st respondent, Minister President's Office-Regional Administration and Local Government Authorities who has enacted regulations published in GN. Nos. 571,572,573 and 574 of 2024 to govern the conduct of the local government electoral process expected to happen this year,2024 which is contrary to the provisions of Articles 74, 75, and 78 of the Constitution of the United Republic and sectionlO(l)(c) of the Independent National Electoral Commission Act of 2024. It is averred further that the local government elections are normally conducted every five years under the supervision of the President's Office of Regional Administration and Local Government. He went on to aver that the 1st respondent being a political leader in charge of the Ministry responsible for Regional Administration and Local Government and a member of the ruling party is conflicted in the whole process of supervising, coordinating and conducting the Local Government Elections. That following public opinion and views collected all over the country from different stakeholders, the

Parliament decided to uphold the Constitutional principles by enacting the Independent Commission to supervise the local government electoral process under section 10(1) (c) of the Independent National Electoral Commission Act of 2024. The enactment of the Independent National Electoral Commission Act, 2024 (Sheria ya Tume Huru ya Uchaguzi ya Mwaka 2024) specified under section 10(1) (c) that the Independent National Electoral Commission (INEC) shall supervise and coordinate the conduct of elections for local government authority in accordance with the procedures to be laid down in the Act to be enacted by the Parliament, the provision of section 4,56(3), 57(1), (2) (3),146(1)(2) and 201 A (1) and (b) 4 of the Local Government District Authorities) Act, Cap. 287 defeat the purpose and spirit of the Independent National Electoral Commission. The petitioner further avers that the making of subsidiary legislation GN. Nos. 571,572,573 and 574 of 2024 is a clear move of usurping the powers vested in the parliament of laying down procedures to guide the Independent National Electoral Commission in the conduct of the local government elections. It is from this background that the Petition was filed. Responding to the petition, the respondents namely the Minister, the President’s Office Regional Administration and Local Government (the 1st respondent) and the Attorney General (2nd

respondent) filed a reply thereto supported by the joint counter affidavit and raised a notice of preliminary objections on three points of law praying this court to strike out the Petition in its entirety with costs. For the sake of quick reference, I hereby reproduce herewith verbatim that: I. The Petition is incompetent for contravening the provisions of Sections 3 and section 4(2) of the Basic Rights and Duties Enforcement Act, Cap.3 [R.E 2019] as amended as the Petitioners have no locus standi to institute this petition. II. The Petition is incompetent for failure to Join the Parliament as a necessary party; III. That, the Petition is incompetent for being supported with incurable defective affidavit containing legal arguments, conclusion and opinion under paragraphs 4,5,6,7,8,9,10,11 and 12. 5 Hearing of the preliminary objections as mentioned above proceeded by way of written submissions in which the learned counsel for the parties complied with the court orders. In this matter, the petitioner was represented by Mr. Bartazary Bosco Mahai, learned counsel whereas the first and second respondents enjoyed the services of Ms. Vivian Method, Principal State Attorney. Accounting for the merits of the first Preliminary Objection, Ms. Vivian Method, Principal State Attorney submitted that the Petition is incompetent for contravening the provisions of sections 3 and 4(2) of the

Basic Rights and Duties Enforcement Act, Cap.3 [R.E 2019] as amended as the Petitioner has no locus to institute this petition. She added that this application is incompetent for want of an affidavit stating the extent to which the contravention of the provisions of Articles 12 to 29 of the Constitution has affected the petitioner personally pursuant to Section 4 (2) of the Basic Rights and Duties Enforcement Act, Cap.3 [R.E 2019] as Amended by the Written Laws (Miscellaneous Amendment) Act No. 3 of 2020. To bolster her argument, she pointed out that Section 4(2) as amended presumes that, for a person to institute petition under the BRADEA, that person must have a locus standi which is well elaborated in the case of Chama cha Wafanyakazi Mahoteli na Mikahawa Zanzibar (horau) V. Kaimu Mrajis wa Vyama vya Wafanyakazi na Waajiri Zanzibar, Civil Appeal No. 300 of 2019 at page 11, paragraph 2.Equally in the case of Lujuna Shubi Ballonzi Senior Vs. The Registered Trustees of Chama Cha Mapinduzi [1966] TLR 203. She further submitted that 6 there are no material facts disclosed in the affidavit as required to show how the Petitioner's rights and duties have been violated or how they are likely to be violated. She added that in establishing that locus, the State through the Written Laws (Miscellaneous Amendments) (No.3) Act, 2020, introduced the amendment which was incorporated under

BRADEA as section 4(2) of the Act which requires any person alleging contravention under section 4(1) of the Act, should file an affidavit stating the extent to which the violation of the provisions of Articles 12 to 29 of the Constitution has affected such person personally. She averred that the procedure enumerated under BRADEA does not favour the petitioner, as the requirement to establish how he has been personally affected as stipulated under section 4(2) of the BRADEA has not been met. There is no affidavit from the Petitioner to indicate the extent of the contravention of his rights. This applies to whether a person has invoked section 4 of the BRADEA and or Article 30(3) of the Constitution as the Petitioner has done in this Petition. To support her stance, the counsel for the respondents cited the case of Tanzania Epilepsy Organization versus Attorney General, Misc. Civil Cause No. 5 of 2022 at page 14-20 where it was held that: "However, locus standi for matters which are preferred under Article 30 (3) of the Constitution is well explained in the case of Rev. Christopher Mtikila vs Attorney General [1994] TZHC 12 (24 October1994) that: - "The petitioner in this case has locus standi by virtue ofArticle 30(3) of the Constitution which entities 7 a person who alleges that a basic right is being or is likely to be contravened in relation to him to institute proceedings

for relief in the High Court, as well as by virtue of Article 26(2) of the Constitution which entities every person to institute proceedings for the protection of the Constitution and of legality..." She stressed further that from the above interpretation, it is obvious that for a petition to be brought under Article 30 (3) of the Constitution and/or Section 4 of BRADEA; the petitioner must show that, a basic right is being or is likely to be contravened in relation to him. She also referred to the case of Sioi Graham Solomon versus ICBC Standard Bank Pic and 6 Others, Misc. Civil Cause No 29 of 2021 (unreported) at pages 14 and 15 where it was held that; "Itgoes without saying that the Petitioners' affidavit must show the extent of contravention as far as Article 27(1) (2) is concerned and how the contravention affected him personally". She argued further that the petition does not contain an affidavit to that effect. Moreover, the Petitioner has pleaded in paragraph 10 of the petition that Article 21 of the Constitution of the United Republic of Tanzania which falls under the Bill of Rights on the right to vote is curtailed. In this case, the Court went ahead and considered Mtikilas' case which gave a position that if the matter falls under the realm of public interest, then the doctrine of locus standi cannot be raised. My learned brother, Rwizile, J in the case of Sioi

Graham Solomon versus ICBC Standard Bank Pic and 6 Others, (supra) held that; 8 "I agree with the learned counsel and what was stated in the said cases, however with all due respect it is my view that this was a position before the amendment ofsection 4 of BRADEA by section 7 of the Written Laws (Miscellaneous Amendment) No. 3 Act, 2020 which makes it mandatory for a person who initiates a proceeding under Article 26 (2) to abide with requirements under Article 30 (3) of the Constitution which requires the Petitioner to be an aggrieved person or interested person". She submitted that this implies that the petitioner must establish his locus standi and affidavit stating the extent to which he has been personally affected by an alleged violation of the Constitution. She urged the court to sustain the preliminary objections and strike out the petition. Responding to the objection, the counsel for the Petitioner submitted that; the Respondent's submission is misconceived for failure to appreciate the fact that this is a public interest litigation and that under Article 26 of the Constitution, the Petitioner is entitled to take action in protecting the Constitution of the United Republic of Tanzania. Moreover, the case of Godbless Jonathan Lema Vs. Mussa Hamis N kang a, Civil App.47/2012 at page 11. The Court held that, "Z/7 matters ofpublic interest litigation this Court will not

deny standing to a genuinely and bonafide litigant even though he has no personal interest in the matter. He urged this court to overrule the objection. 9 Addressing the second preliminary objection which is to the effect that the petition is incompetent for failure to join the Parliament as a necessary party; the counsel for the respondents stated that the Petitioner has made allegations against the Parliament under paragraph 8 of the Petition and paragraph (d) of the reliefs prayed. However, he has omitted to make the Parliament a party to this petition. She averred that if this case proceeds without joining the Parliament, then the Parliament will be deprived of its right to be heard before adverse decision or action is made against it. Buttressing her argument, her reliance was echoed in the case of Abbas Sherally andAnother Vs. Abdul Sultan Haji Mohamed Fazal Boy, Civil Application No. 33 of2002 CAT as quoted on pages 6 &7 in the case Shaibu Salim Hoja Vs. Helena Mhacha as Legal Representative ofAmerina Macha, Civil Appeal No. 7 of2012 CAT. "The right of a party to be heard before adverse action or decision is taken against such party has been stated and emphasized by the Court in the previous decision. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been heard, because the violation is

considered to be a breach of the principles of naturaljustice". She further made a reference to Rule 9 Order 1 of the Civil Procedure Code, Cap. 33 [R.E 2019] that misjoinder and non-joinder of a party shall not defeat a suit however; the Court of Appeal in the case of Abdulatif io Mohamed Hamis Versus Mehboob Yusuf Osman & Fatna Mohamed, Civil Revision No. 6 of 2017 at page 27 held that; "Viewed from that perspective, we take the position that Rule 9 of Order 1 only holds good with respect to the misjoinder and non­ joinder of non-necessary parties. On the contrary, in the absence of necessary parties, the court may fait to deal with the suit, as it shall, eventually, not be able to pass an effective decree". The learned counsel for the respondents further submitted that the petitioner has pleaded relief against the Parliament and the Court of Appeal quoted Order 1 Rule 3 of the Civil Procedure Code, Cap. 33 [R.E 2019] in the case of Tanzania Railways Corporation (TRC) Versus GBP (T) Limited, Civil Appeal No. 218 of 2020 at page 14 as follows; "AH persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of arts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if separate suits were brought against such persons, any common question of law or fact would

arise". She further stressed that, from the Petitioner's pleading it is clear that without the presence of the Parliament the suit cannot be completely decided without hearing the Parliament. She prayed that this preliminary objection be sustained. ii Opposing, the Petitioner's counsel submitted that this point is grossly misconceived. He further submitted that remedy available for this fault is to order an amendment. This fault does not warrant striking out the petition nor dismissal, it is not a fatal irregularity. He prayed that this Court be pleased to order for an amendment of the same or order the Parliament to be joined under Order I Rule 10 of the Civil Procedure Code, Cap.

33. The third limb of preliminary objection is to the effect that the application is incompetent for being supported with incurably defective affidavit containing legal arguments, conclusion and opinion. The counsel for the respondents shed light on what an affidavit entails and the ingredients thereof. Similarly, in the case of DPP Vs DodoU Kapufi and another, Criminal Application No. 11 of2008, CAT on page 2 held that; "The essential ingredients to be contained in an Affidavit are as follows; "Statement or declaration of facts; Verification clause, Jurat and Signature of the deponent and the person who in law is authorized either to administer the oath or accept affirmation." She further emphasized that Order XIX Rule 3 of the Civil Procedure Code, Cap. 33 [R.E 2019] provides that an affidavit shall be confined to such facts as the deponent is able of his knowledge to prove and cited the case of Jacqueline Ntuyabaliwe Mengiand2 Others Versus Abdiel Reginald Mengi, Civil Application No. 332/01 of 2021 where the Court held that "It should be noted that, apart from the ingredients stated above, the affidavits must be confined to facts and must be free from extraneous matters". The learned counsel for respondents referred this court to the specific paragraphs 12 of the petitioner's affidavit that paragraphs 4 and 7 conclude that the 1st respondent is conflicted and at the same

time opining. Paragraphs 5 and 8 conclude that the 1st respondent has no mandate to conduct, coordinate and supervise local government elections while paragraph 5 goes further to opine that making subsidiary legislation is a clear move of usurping powers vested in the parliament. She further averred that, paragraphs 6 and 9 opines that the 1st respondent has allocated a budget, paragraphs 10 and 11 opine and conclude that the purpose and spirit of the Independent National Electoral Commission is defeated. Paragraph 12 of the affidavit opines and argues that the process should be conducted fairly through an independent organ and not the 1st respondent who is a politician and member of the ruling party with an interest to serve. She stressed that these are extraneous matters which defects the petitioner’s affidavit. To further concretize her point of objection, the learned Principal State Attorney advanced that, having examined the offensive paragraphs, the Court of Appeal has held several times that the remedy is to expunge the offensive paragraphs; though as held in Mengi's case cited above at page 23, the Court of Appeal went ahead to provide the effect of offensive paragraphs and held that; "...Where the remedy to the affidavit which contains such 'extraneous matter is to expunge such offensive paragraphs or disregard them to allow the court to proceed with hearing

and determination of the application basing on the remaining paragraphs." 13 Having submitted that the counsel for the respondents prayed that the third preliminary objection be sustained whereas the offensive paragraphs be expunged from the affidavit. Having expunged the offensive paragraphs, the remaining paragraphs cannot support the petition hence the entire petition becomes incompetent. The remedy available to an incompetent proceeding such as this is to strike out the same as held by the Court of Appeal in the case of Ghati Methusela Vs, Matiko Manua Meriba, Civil Application No. 6 of2006 (Unreported) as cited at page 8 in the case of Shangwe Mjema Versus Frida Salvatory and Another, Criminal Appeal No. 103 of2017. Concluding her submission, the counsel for the respondents reiterated that the preliminary objections be sustained and the Petition be strike out in its entirety, with costs. Disagreeing on the third point of objection which is to the effect that the Petition is incompetent for being supported with incurable defective affidavit containing legal arguments, conclusion and opinion under paragraphs 4,5,6,7,8,9,10,11 and 12. The Petitioner stated that it is not true since no legal argument, conclusion nor opinion. The counsel for the Petitioner while agreeing with the stated principles in the cited cases of Dodoli Kapufi and Jacquiline Mengi, (supra) stated that he

is not in consensus that the affidavit contains defective paragraphs on the reason that the affidavit contains narration of facts only. He averred that there are no legal arguments, conclusions and opinions under paragraphs 4,5,6, 7,8,9,10,11 and 12 as alleged by the respondent's counsel. In his conclusion, the counsel for the Petitioner borrowed a leaf from the Court of Appeal of Tanzania in 14 the case of DPP Versus Bernard Njavike (1988) TLR,18 where the court held, inter-alia, that "There are places and seasons for everything." Therefore, he prayed to this court to overrule the preliminary objections for want of merit with costs. Having considered the nature of the raised points of objections, the issue is to see whether the objections raised have merits or not. I have keenly read the submissions and reviewed the affidavit and the counter-affidavit made by both parties. The task of this court now is to determine if these objections have merits or not. Starting with the first limb of objection; regarding the locus standi in this petition. The plain meaning of locus standi is the right or capacity to bring an action or to appear in a Court, Locus standi should be one of the first things to establish in litigation. It concerns the sufficiency and directness of a litigant's interest in proceedings, which warrants his or her title to prosecute the claim asserted. There are

various court decisions regarding locus stand! In the case of The Attorney General V The Malawi Congress Party and Another, Civil Appeal No. 22 of 1996, the Malawian Supreme Court of Appeal as cited in the case of Godbless Jonathan Lema v Musa Hamis & 2 Others, Civil appeal No. 47/2012, CAT at Arusha, provided the test for locus standi that: "Locus Standi is a jurisdictional issue. It is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject of it, that is to say unless he stands in a sufficient dose 15 relation to it so as to give a right that requires prosecution or infringement of which he brings the action. "Similarly, in the case of Lujuna Shubi Balonzi (supra) where it was stated that/ "In this country, locus standi is governed by the common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with In this matter, the issue before this court as far as this petition is concerned is whether the petitioner has locus standito institute this petition. It is in the record that the basis of this petition is Articles 26(2), 30(3) and 108(2) of the Constitution. For clarity the same are enumerated as hereunder; "26.-(2) Every person has the right, in accordance with the procedure provided by law, to take legal action to ensure the protection of

this Constitution and the laws of the land. 30 (3) Any person claiming that any provision in this Part of this Chapter or in any law concerning his right or duty owed to him has been, is being or is likely to be violated by any person anywhere in the United Republic, may institute proceedings for redress in the High Court. 108 (2) Where this Constitution or any other law does not expressly provide that any specified matter shall first be heard by a court specified for that purpose, then the High Court shall have jurisdiction to hear every matter ofsuch type. Similarly, the High Court shall have jurisdiction to deal with any matter which, 16 according to legal traditions obtaining in Tanzania, is ordinarily dealt with by a High Court provided that: the provisions of this sub-article shall apply without prejudice to the jurisdiction of the Court of Appeal of Tanzania as provided for in this Constitution or in any other law." Flowing from the provisions above, it is undeniable that the petitioner has a right to institute a legal action in court to protect the Constitution. It is also settled that the enforcement of Part III of the Constitution is under section 3 of the Basic Rights and Duties Enforcement Act, Cap.3 (BRADEA) which applies only to enforce the provisions of the Basic Rights and Duties set out in Part III of Chapter One of the Constitution of the United Republic of Tanzania, Cap.2. It is also a rule that institution of a legal action before the court as far as Part III of BRADEA is concerned, the person must abide by the requisite conditions stated under section 4(1) of the BRADEA as amended by section 7 of the Written Laws (Miscellaneous Amendments) (No.

3) Act, 2020 and Article 30(3) of Constitution which states among others that; 4(1) "Where any person alleges that any of the provisions of Articles 12 to 29 of the Constitution has been, is being] or is likely to be contravened in relation to him, he may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the High Court for redress." 17 Under the said Constitution, Article 30(3) provides that; "any person claiming that any provision in this Part of this Chapter or in any law concerning his right or duty owed to him has been, is being; or is likely to be violated by any person anywhere in the United Republic may institute proceedings for redress in the High Court". Therefore, the necessary conditions or requirements stated by provisions of the law cited above are two; one, there must be or likely to be a contravention ofa right or duty and two such contravention must be in relation to the person himself. The fundamental question would be, has the petitioner shown any contravention in relation to his right or duty as stated in this petition? It is an established law, that the affidavit accompanying the petition must state the extent of contravention and how it affected the petitioner personally. The position of the law section 4(2) of BRADEA as amended by section 7 of the Written Laws (Miscellaneous Amendments) (No.

3) Act, 2020 reads; " Without prejudice to the provisions of the Commission for Human Rights and Good Governance Act, relating to the powers of the Commission to institute proceedings, an application under subsection (1) be admitted by the High Court unless it is accompanied by an affidavit stating the extent to which the contravention of the provisions of Articles 12 to 29 of the Constitution has affected such person personally." 18 Therefore; with the above considered in composite, there is no dispute that the petitioner's affidavit must show the extent of contravention as far as Articies 30(3), 26(2) and 108 are concerned and how that contravention affected him personally. In that regard, it is clear to this court that after going through the petitioner's affidavit averred in paragraphs 4,5,8,9 to 12 I subscribe with the respondents' counsel that nowhere the Petitioner has disclosed in the affidavit. I thus agree with the learned Principal State Attorney that the petitioner has failed to disclose in the affidavit as per the requirement of the law how his/her rights and duties were or is likely to be contravened and the effect thereof in relation to him. With due respect, I am not convinced by the Petitioner argument that it is a public interest litigation and that under Article 26 of the Constitution, the Petitioner is entitled to take action in protecting the Constitution

of the United Republic of Tanzania since section 4(2) of the Basic Rights and Duties Enforcement Act, Cap.3 requires the High Court to reject admission any petition from an ordinary person not accompanied by an affidavit showing personal interest.Thence, I find that this ground of the PO is sustained. Turning to the second point of objection that; the Petition is incompetent for failure to join the Parliament as a necessary party. It is a well-known- principle of law that there are proper and necessary parties in a suit. The Black's Law Dictionary Sixth Edition Centennial Edition: (1891-1991) defines a proper party: As distinguished from a necessary party, who has an interest in the subject matter of the litigation 19 which may be conveniently settled therein. One without whom a substantial decree may be made, but not a decree which shall completely settle all the questions which may be involved in the controversy and conclude the right of all the persons who have any interest in the subject of the litigation... proper party may be joined in action but whose nonjoinder will not result in dismissal, (on page 12,16). The Black's Law Dictionary (supra) defines the "necessary partied in the following manner: In pleadings and practices those persons who must be joined in action because, among other things, complete relief cannot be given to those already parties without their

joinder. Those persons who have such an interest. As gathered from the counsel's submission, the wrangle revolves around paragraph 8 of the Petition and (d) of the prayed reliefs that the 1st Respondent has no mandate to conduct, coordinate, or supervise the local government elections. The making of subsidiary legislation is a clear move of usurping the powers vested in the Parliament of laying down procedures to guide the Independent National Electoral Commission in the conduct of the local government elections and (d). Declaration that the omission of the Parliament to enact a law to operationalize section 10(l)(c) of the Independent National Electoral Commission Act of 2024 is unconstitutional. Whereas I understand that, by virtue of the Parliament being a necessary party, its involvement is indispensable. This raises an important question that precedes the main dispute between the parties who qualifies as a necessary party. This is the same question the Court of Appeal faced when it addressed 20 the appeal proceedings in the case of Abdulatif Mohamed Hamis v. Mehboob Yusuf Osman & Another (supra). The Court of Appeal borrowed the description laid down in the Indian case of Baranes Bank Ltd. V. Bhagwandas, A.I.R. (1947) All 18, wherein it was guided as follows: The full bench of the High Court of Allahabad laid down two tests for determining the questions whether a

particular party is necessary party to the proceedings. "First, there has to be a right, of relief against such a party in respect of the matters involved in the suit and; second, the court must not be in a position to pass an effective, decree in, the absence of such a party. The foregoing benchmarks were described as true tests by the Supreme Court ofIndia in the case o/Deputy Comr, Hardoi v. Rama Krishna, A.I.R. (1953) S.C. 521." In the end, the superior Court concluded, at page 6 of the judgment, as hereunder. " We, in turn, fully adopt the two tests and, thus, on a parity of reasoning, a necessary party is one whose presence is indispensable to the constitution ofa suit and in whose absence no effective decree or order can be passed. Thus, the determination as to who is a necessary party to a suit would vary from a case to case depending on upon the facts and circumstances of each particular case. Among the relevant factors for such determination include the particulars of the non­ joinder party, the nature of relief claimed as well as whether or not, in the absence of the party, an executable decree may be passed." 21 Applying the tests emphasized in the cited decisions, the question is whether, in the circumstances of this case, the Parliament is a necessary party whose joinder in the proceedings is of imperative need. Although I am aware of Order 1 Rule 9 of the Civil

Procedure Code, Cap.33 that misjoinder and non-joinder of a party shall not defeat a suit nonetheless I respectfully agree with the respondents' counsel view that in the absence of necessary parties, the court may fail to deal with the suit, as it shall, eventually not be able to pass an effective decree. There is a plethora of case laws on this matter which include but are not limited to the case of Stanislaus Masunga Nkoia & 2 Others; The Board of Directors, Nyarugusu Mine Company Limited & Others, HC-Misc. Civil Cause No. 1 of 2021 (MZA) (unreported), " This implies that no effective order or decree may be passed in the absence of the said party, the Court finds itself trapped in the temptation ofhaving the saidparty ordered to take an action without being heard. It would require taking such a party on board, and have it put a case." As well indicated by the respondent's counsel, I fully subscribe with her that the Parliament is, for all intents and purposes, a necessary party whose presence in the Petition cannot be washed away. This was appropriately underscored by the Court of Appeal in the case of Ngerengere Estate Company Limited v. Edna William Sitta, CAT-Civil Appeal No. 209 of 2016 (unreported). The Court held that: 22 "In view of the settled law on the right to be heard, we are of a serious considered view that, it will be absurd for this Court to make any order

against the Parliament as prayed by the respondents without availing her opportunity to be heard. In this regard, I agree with the respondent's counsel that, the Parliament ought to have been joined as a party in the Petition before the High Court; failure of which amounted to a fundamental procedural error. The argument on the absence of the necessary party and the adverse consequence that it carries featured prominently in the case of Abdullatif Mohamed Hamis Mehboob Yusuf Osman & Another (supra) where the court laid the following specific emphasis: "... There is no gainsaying the fact that the presence of a necessary party is, just as well, imperatively required in our jurisprudence to enable the courts to adjudicate and pass effective and complete decrees. Viewed from that perspective, we take the position that Rule 9 of Order 1 only holds good with respect to the misjoinder and non-joinder of non-necessary parties. On the contrary, in the absence ofnecessary parties, the court may fail to deal with the suit, as it shall, eventually, not be able to pass an effective decree. It would be idle for a court, to pass a decree which would be of no practical utility to the Petitioner. Therefore, from the above position, it is my considered view that without Parliament being a party to the case, the court would not have the 23 opportunity to hear its defence or reasoning behind the

legislative actions being challenged. As a result, the court's ruling could be incomplete or invalid without Parliament's input. I find the preliminary objection meritorious, the petition is incompetent for leaving out a necessary party. Although, I am live to the well settled principle of the law that the remedy for non-joinder is to allow the party to amend his pleadings, in this matter, granting such remedy will be absurd as the petitioner lacks the necessary capacity to do so pursuant to the decision of the court in regard to the first limb of the PO above. It will be of no use to allow the 'incompetent party' to amend his pleadings. Turning to the last limb of the objection, the petition is incompetent for being supported with an incurable defective affidavit containing legal arguments, conclusion and opinion under paragraphs 4,5,6,7,8,9,10,11 and 12. The position of the law governing the Affidavit is stated under Rule 3(1) of Order XIX of the Civil Procedure Code, Cap 33 which provide: "Affidavit shall be confined to such facts as deponent is able of his on knowledge to prove, except in the interlocutory applications, on which statement of his belief may be admitted provided that the grounds thereof are stated." Most importantly, in the case of Uganda v Commissioner of Prisons ex parte Matovu (1966) EA 514, the High Court of Uganda, stated that- 24 " ...Asa general rule

of practice and procedure, an affidavit for use in court' being a substitute for oral evidence, should only contain statements of facts and circumstances to which the witness deposes either ofhis own knowledge or from information which he believes to be true. Such an affidavit should not contain extraneous matters by way of objection or prayer or legal argument or conclusion." Based on this legal requirement, this Court has revisited the affidavit of the petitioner to see whether paragraphs 4,5,6,7,8,9,10,11 and 12 exposed herein by the respondents offend the provisions. This court having traversed through the stated paragraphs is of the considered view; that they do contain arguments, opinions and conclusions as claimed by the respondent's counsel. They do not provide facts that must be proved during the hearing. Therefore, it is the court's scrutiny that the affidavit always serves as evidence, and its role is to present factual details, not legal arguments or opinions. As properly admitted by the counsel for the Petitioner, the offensive paragraphs as noted above could be expunged as per the case of Dodoli Kapufi and Jacqueline Mengi (supra). Similarly, in the case of Phantom Modem Transport [1985] Limited v. D. T. Dobie [Tanzania] Limited, Civil Reference No. 15 of 2001 and 3 of 2002. In the event, I hereby expunge all paragraphs save for the 1st, 2nd and 3rd. Thereafter after expunging the remaining paragraphs, I find that this Petition does not suffice for the determination of merits before the court of law. It is 25 on this basis that the Preliminary Objection is sustained. The Petition is accordingly struck out. Considering the nature of this petition I order no costs. Order accordingly. Dated at Dar es salaam this 12th day of November, 2024. A. BAHATI SALEMA

JUDGE Court: This ruling is delivered today this 12th day of November, 2024 in the presence of Mr. Baltazar Bosco Mahai, learned counsel and the Petitioner in person and in the presence of Mr.Erigh Rumisha, Kelvin Kisayo and Francis Wisdom, learned Senior State Attorneys for the respondents. A. BAHATI SALEMA

JUDGE 12/11/2024 26