Hon

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY

AT DAR ES SALAAM CONSTITUTIONAL CASE NO. 18394 OF 2024 HON. LUHAGA JOELSON MPINA ………………………………. PETITIONER

VERSUS THE HON. SPEAKER OF THE NATIONAL ASSEMBLY……1ST RESPONDENT THE HON. MINISTER FOR AGRICULTURE ……………….2 ND RESPONDENT THE HON. ATTORNEY GENERAL…………………………….3RD RESPONDENT

RULING Date of last order: 18/10/2024 Date of ruling: 24/10/2024 A.A. MBAGWA, J. This ruling is a result of the preliminary objection on points of law raised by the respondents’ counsel against the competency of this petition. To grasp the gist of the matter, I find it imperative to recount the background of the matter albeit briefly. The petitioner is a Member of Parliament for Kisesa Constituency. It is 1 contended that on the 4th day of June 2024, while the Minister for Agriculture (2nd respondent) was addressing the National Assembly on the budget estimates for 2024/2025, the petitioner raised and informed the National Assembly that the 2nd respondent lied to the National Assembly and the public at large in respect of gap sugar of about 60,000 metric tons of the year 2022/2023. Following these accusations, the Hon. Speaker of the National Assembly (1st respondent) required the petitioner to submit the evidence to substantiate his allegations by the 14th day of June 2024. The petitioner complied with the order of the 1st respondent. However, no sooner had the petitioner submitted the evidence to the 1st respondent than he held a press conference and shared the contents of his evidence with the media. This act was viewed as unethical conduct within the purview of the Parliamentary Standing Orders. Thus, on the 18th day of June 2024, the 1st respondent assigned the KAMATI YA

HAKI, MAADILI NA MADARAKA YA BUNGE, among other things, to investigate whether the petitioner’s allegations against the 2nd respondent were valid and whether the petitioner’s conduct of sharing the evidence with the media constituted 2 insubordination to the 1st respondent and the National Assembly at large. According to the pleadings, KAMATI YA HAKI, MAADILI NA MADARAKA YA BUNGE found the petitioner guilty. Consequently, the National Assembly under the superintendence of the 1st respondent suspended the petitioner from fifteen (15) Parliamentary sittings. The petitioner was discontented with the way he was treated in the entire inquiry exercise and the resultant punishment imposed by the 1st respondent. He thus brought this petition under the provisions of Article 107 A(1) and 108(2) of the Constitution of the United Republic of Tanzania of 1977 read together with section 2(3) of the Judicature and Application of the Laws Act [Cap. 358 R.E. 2019]. The petitioner prays for the following reliefs: 1. DECLARATION that the suspension order issued by the 1 st respondent contravenes the provision of Article 66(1)(a) of the Constitution of the United Republic of Tanzania, 1977 as amended timely. 3 2. DECLARATION that the suspension order issued by the 1 st respondent shall deny the citizens and voters within Kisesa Constituency their right to fair representation in the forthcoming August National Assembly.

3. DECLARATION that the suspension order by the 1st respondent denied the general public right to access information in terms of section 5(1) of the Access to Information Act, No. 6 of 2016.

4. DECLARATION that the suspension order was made without formal resolution of the National Assembly as required by the provision of order 68(7) of the Parliamentary Standing Orders, February Edition, 2023.

5. DECLARATION that the suspension order was made without affording the petitioner the right to be heard, fair hearing, and defence.

6. DECLARATION that the suspension order made by the 1st respondent is unconstitutional, unlawful, illegal, null, and void with no legal force.

7. DECLARATION to nullify the suspension order and reinstitute back the petitioner in the August National Assembly.

8. THAT, having nullified the suspension order, this court declares that the petitioner is entitled to all benefits, remunerations, and privileges in the entire period of his suspension.

9. Costs be provided for by the respondents. 4 10. Any other order that this Honourable Court may deem fit and appropriate to grant Upon service, the respondents contested the petition through a joint affidavit sworn by Maria Mdulugu, a Senior State Attorney employed by the National Assembly. Along with the counter affidavit, the respondents filed a notice of preliminary objection containing three preliminary objections on points of law as follows; 1. The Petition is incompetent and bad in law for the failure of the Petitioner to exhaust the available remedies under the Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act [Cap. 310 R.E. 2019].

2. The Petition is incompetent and bad in law for misjoinder of the 2nd Respondent.

3. This Honourable Court lacks jurisdiction to entertain this Petition. Following the preliminary objections raised, this Court was obliged to dispose of the preliminary objection before delving into the merits of the petition. As such, the matter was scheduled for a hearing of the preliminary objections on 24th September 2024. On the hearing date, the petitioner was ably represented by Mr. John Seka, 5 Mr. Edson Kilatu, Mr. Ferdinand Makole, and Mr. Fredrick Msaki, learned advocates whilst the respondents had the services of Mr. Hangi Chang’a, learned Principal State Attorney assisted by Mr. Obadia Kamea learned Principal State Attorney, Mr. Edwin Webiro learned State Attorney, and Ms. Thuaiba Jume learned State Attorney. From the outset, I am exceedingly grateful to both counsel for the enriching and insightful submissions. Mr. Webiro preferred to begin with the 3rd ground of objection for the reason that it touches on the jurisdiction of the Court. Submitting on the jurisdictional issue, Mr. Webiro commenced by expounding on the term jurisdiction as defined by this Court and Court of Appeal. He referred this Court to the case of Bestcom Company LTD vs Jacob Mtalitinya t/a IT Farm, Civil Case No. 160 of 2012, HC at Dar es Salaam, on page 1 where this Court defined the word jurisdiction as follows; ‘By jurisdiction’ is meant the authority which the Court has to decide matters

that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or 6 commission under which the court is constituted, and may be extended or restricted by similar means’ Further, Mr. Webiro also referred this Court to the case of Commissioner General Tanzania Revenue Authority vs JSC Atomredmetzoloto (ARMZ), Consolidated Civil Appeals Nos 78 and 79 of 2018, CAT at Dodoma, in his bid to buttress the point on jurisdiction. The Court, on page 26, held; ‘The question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature... The question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial....’ Based on the definition of the term jurisdiction as construed in the above decisions, Mr. Webiro strongly argued that this Court lacks jurisdiction in terms of Article 100 of the Constitution of the United Republic of Tanzania read together with section 3 of the Parliamentary Immunities, Powers, and Privileges Act [Cap. 206 R.E 2020]. On this, the learned State Attorney had it that individual members of Parliament and the Parliament itself have privileges and immunities on any

matter said or done in the National 7 Assembly or submitted to the National Assembly by way of petition, bill, motion, or otherwise. He explained that in view of the provisions cited above, it is a general rule that courts are barred from questioning any matter relating to parliamentary proceedings or any matter done in the course of the business of the Parliament. Mr. Webiro went on to clarify that the immunities and privileges enshrined under Article 100 of the Constitution aim to ensure that the principle of separation of powers which is provided under Article 4 of the Constitution is not interfered with by other arms of the state. However, the learned State Attorney quickly remarked that he was alive to the fact that the parliamentary immunities and privileges provided under Article 100 of the constitution and Section 3 of the Parliamentary Immunities, Powers, and Privileges Act are not without limitations. Mr. Webiro told the Court that the scope and limitations were squarely defined in the case of Augustine Lyatonga Mrema vs Speaker of the National Assembly and the Attorney General [1999] TLR 206. He said 8 that on page 229 the High Court cited with approval the case of MS Sharma vs Shree Krishna Sinha and Others AIR 1960 1187 to the following effect; ‘As per this Article and authorities above cited, the Indian Court would not be entitled to question the validity of any

proceedings in Parliament on the grounds of irregularity procedure thus the above immunity from judicial interference is confined to matters of irregularity of procedure not to matters done without jurisdiction or done with in defiance to mandatory provisions of the Constitutions or exercising powers not granted by the Constitution.’ Further, Mr. Webiro submitted that the High Court subsequently deliberated the scope and limitation of the parliamentary immunities and privileges in the case of Paul Revocatus Kaunda vs The Speaker of The National Assembly and Others, Misc. Civil Cause No. 10 of 2020, HC (Main Registry) at Dar es Salaam where on page 23, it had this to say; ‘From the above discussions, it would sound to us to be the law that, the privileges and immunities protected under article 100(1) of the Constitution is limited to freedoms of thoughts, deliberations, and procedures enjoyed in the formal transaction of business in the Parliament or in its Committees. It does not, 9 in our view, extend to matters done without jurisdiction, or done in contravention of mandatory provisions of the Constitution, or exercising powers not granted by the Constitution.’ In view thereof, the learned State Attorney candidly submitted that this Court is not clothed with jurisdiction to question the validity of any proceedings in Parliament on the ground of irregularity of procedure or

matters relating to freedom of thought, deliberations, and procedure enjoyed in the formal transaction of business in the Parliament or its Committee. He stressed that the Court only has powers to determine or question matters done by the Parliament without jurisdiction or in contravention of the mandatory provisions of the Constitution or where the Parliament exercises powers not granted to it by the Constitution. Mr. Webiro was of the strong opinion that if the matter is done by the Parliament within its jurisdiction, this Court cannot question it even if the procedure of doing so was contravened. Insisting on the duty to observe the doctrine of separation of powers, Mr. Webiro again referred this Court to the case of Augustine Lyatonga 10 Mrema (supra) where it cited with approval the holding in MS Sharma vs Shree Krishna Sinha and Others AIR 1960 1187 on page 229 to the following effect; ‘It must also be observed that once it has been held that the legislature has the jurisdiction to control the publication of its proceedings and go into the question whether there has been any breach of its privileges, the legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules business even though it may not have strictly complied with the requirement of procedural law laid down for conducting its business that cannot be a ground for

interference by this Court under Article 32 of the Constitution, Courts have always recognized the basic difference between want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of the procedure cannot be ground for issuing writs under Article 32.’ The learned State Attorney continued that the position was restated in the case of Alphonce Lusako and Others vs the Attorney General and Others, Misc. Civil Cause No. 5 of 2023, HC (Sub-Registry) at Mbeya where the Court observed as follows; ‘The reasoning in the Mrema case (supra) and others which were cited in the Msekwa Book distills one important principle. That 11 the conduct of the Parliament in this matter, from the issuance of the notice and all other subsequent steps, however mistaken they may be, are matters which would not be questioned by any court, including this Court. It is a no 'fly zone' that should be observed and we are not persuaded that we should drift from that established position.’ Mr. Webiro added that the Court, on page 68, cited with approval the English case of British Railways Board and Another v. Pickin [1974] AC 765 where it held: "....it must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further decide whether they have been obeyed. It

must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark on an enquiry concerning the effect or effectiveness of the internal procedures of Parliament or an enquiry whether in any particular case those procedures were effectively followed." 12 To bolster the position, Mr. Webiro said that section 33(1) of the Parliamentary Immunities Powers and Privileges Act ousts the Court’s jurisdiction even where the procedure of doing the act was not properly complied with. Expounding, the learned State Attorney had it that the borne of contention in the matter at hand is the suspension of the petitioner by the National Assembly after he was found guilty of contravening the provisions of the Parliamentary Immunities Powers and Privileges Act and the Parliamentary Standing Orders. He adamantly submitted that the issue for determination is therefore whether the Parliament had jurisdiction to suspend the petitioner. In his opinion, the answer was in the affirmative in terms of Order 83 (3) of the Parliamentary Standing Order R.E. 2023 ( also known as KANUNI ZA KUDUMU ZA BUNGE TOLEO LA

FEBRUARY 2023). He concluded that what was done by the Parliament was within the law as such, the Parliament had jurisdiction to suspend the petitioner. Mr. Webiro said that this Court was once faced with an akin situation in 13 Augustine Lyatonga Mrema (supra) where the petitioner had been suspended by the Parliament but in the end, the Court ruled that in terms of rule 60 of the 1988 Standing Orders made under Article 89(1) of the Constitution, the Parliament had the jurisdiction to suspend the petitioner. The learned State Attorney further submitted that looking at the pleadings in particular paragraphs g, h, i, k, m, n, p, q, i, s, and t of the petition, the petitioner is challenging the parliamentary proceedings and its resultant decisions on the grounds of irregularity of procedure. Mr. Webiro firmly stated that the petitioner is not alleging that the Parliament acted without jurisdiction or exercised powers not granted to it by the Constitution. In fine, the respondents’ counsel argued that since the respondents established that the Parliament had jurisdiction to suspend the petitioner in terms of Rule 84 of the Parliamentary Standing Orders and that the petitioner is challenging the improper or irregular exercise of jurisdiction or non- compliance with the rule of procedures, this Court is not enjoined to entertain the petition within the purview of the cited

cases. 14 In addition, Mr. Webiro referred this Court to the case of Hon. Andrew John Chenge vs the Public Leaders’ Ethics Secretariat and 2 Others, Misc. Civil Cause No. 18 of 2015, HC (Main Registry) at Dar es Salaam where it held; ‘In the result, we feel disposed to partly accede to the first preliminary objection raised by the respondents, to the effect that this Court has no jurisdiction to entertain this matter as the petition contravenes the provisions of article 100 (1) of the Constitution, in so far as it seeks to challenge National Assembly resolutions and proceedings leading thereto. This Court cannot, therefore, grant the petitioner's prayers (b) and (e) of the petition, which directly touch upon those debates, opinions and resultant decisions.’ Furthermore, the learned respondents’ counsel cited the persuasive decision of Ras Marain Singh vs Atamaram Govind AIR 1954 saying that the Indian Court held that the resolution to suspend a member of parliament was within its exclusive jurisdiction. In fine, Mr. Webiro urged this Court to find the objection tenable and consequently strike out the petition. 15 The 2nd objection was argued in the alternative to the jurisdictional issue. Mr. Webiro submitted that in the event the Court finds the jurisdictional issue lacking in merits, then this Court should hold that the petition is incompetent in that the petitioner had

another remedy that he ought to exhaust before filing the constitutional petition. He elaborated that the petition was filed under Articles 107A(1) and 108(2) of the Constitution. It was the respondents’ argument that Article 107A(1) is a general Article that gives powers to this Court as final authority in dispensing justice whereas Article 108(2) is the enabling provision under which the applicant moved the Court to grant the reliefs sought. According to the learned State Attorney, Article 108(2) is only applicable where the law has not provided for an alternative avenue to pursue the redress sought. The learned State Attorney was opined that the petitioner has an alternative remedy apart from filing a constitutional petition. He elucidated that pursuant to Order 5(4) of the Parliamentary Standing Orders, a member of parliament who is aggrieved by the decision of the 1st respondent, is required to file his complaint before the Speaker 16 within the prescribed time. It was therefore the respondents’ submission that since the petitioner is challenging the decision of the 1st respondent as deciphered from the reliefs sought, the petitioner ought to have exhausted remedies under Order 5(4) before filing the present petition. Mr. Webiro further submitted that apart from the remedy provided under the Standing Orders, the petitioner is challenging the decision made by

the quasi-judicial body for being illegal. He thus opined that the proper way of challenging the decision of a quasi-judicial body on illegality is by way of judicial review. On this, he heavily relied on the decision in the case of James Funke Gwagiro vs The Attorney General [1994] TLR 73 saying that the court held that an action or decision of a public body that allegedly made contrary to statutory provisions is considered to be illegal and such illegality is a pure ground for judicial review. To fathom his argument, Mr. Webiro remarked that, on diverse occasions, the Court held that constitutional petition cannot be an alternative to normal civil proceedings. On this, he significantly relied on the decisions in the cases of Paul Revocatus Kaunda (supra) and Tanzania Cigarette Company LTD vs 17 Fair Competition Commission and Another, Misc. Civil Cause No. 31 of 2010, HC at Dar es Salaam and Freeman Aikael Mbowe vs the Director of Public Prosecutions, Civil Appeal No. 382 of 2021, CAT at Da es Salaam. While winding up the second objection, Mr. Webiro said that since the petitioner is challenging the procedures used by the Parliament to suspend him, the appropriate forum was to file a judicial review and not a constitutional petition. He equally beseeched the Court to find the second objection meritorious and to proceed striking out the petition on the basis

of incompetence. The third and last objection was on the misjoinder of a party to wit, the 2nd respondent. It was the respondents’ contention that, on reading the entire petition, no cause of action was established against the 2nd respondent. Mr. Webiro lamented that even the reliefs sought by the petitioner were not directed to the 2nd respondent. He concluded that the 2nd respondent was improperly impleaded in the petition. The learned State Attorney observed 18 that whereas nonjoinder or misjoinder of a party does not defeat the suit as per Order 1 Rule 9 of the Civil Procedure Code, this Court is enjoined, in terms of Order X Rule 2 of the Civil Procedure Code, to strike out any party improperly impleaded. He therefore implored the Court to invoke its powers under Order X Rule 2 of the Civil Procedure Code and consequently strike out the name of the 2nd respondent on the ground that there is no cause of action against him. In addition, Mr. Obadia Kameya, the learned Principal State Attorney recapped the second objection regarding the availability of the alternative remedy. He explained that Order 2(1) of the Parliamentary Standing Orders is broad enough to accommodate the remedies sought by the petitioner and hence it was improper for the petitioner to approach this Court through a constitutional petition. In rebuttal, Mr. John Seka, Mr. Edson Kiratu, and Mr. Ferdinand

Makole, the learned advocates for the petitioner vehemently opposed the the first and third preliminary objections. 19 Mr. John Seka countered Mr. Kamea’s submission saying that Order 2(1) and (2) of the Parliamentary Standing Orders must be compatible with the Constitutional dictates. Expounding, Mr. John Seka argued that Article 89 (1) of the Constitution under which the Parliamentary Standing Orders are made subjects the Orders to the Constitution. He continued that Article 26(1) of the Constitution imposes a duty to every person including the National Assembly to abide by the Constitution and laws of the United Republic of Tanzania. He was thus of the opinion that where the constitutional dictates are contravened, the remedy available to the aggrieved party is not to demonstrate in the streets but rather to knock on the doors of this Court. Mr. Seka told the Court that the petitioner resorted to the Court by virtue of Article 108 to get a remedy for the challenges he was facing. The learned advocate was very emphatic that this Court is under Article 108 enjoined to adjudicate over any matter where there is no specific remedy. He added that the petitioner invoked the provisions of Article 107A(1) because it designates the Court as the supreme authority to dispense justice. He thus stressed that 20 where there is a violation of the Constitution and another basic right

the only place to seek redress is the Court. Mr. Seka went on that the borne of the petitioner’s complaints was that he was suspended from the parliamentary sittings by using the procedures under the Parliamentary Standing Orders which did not adhere to the dictates of the Constitution of the United Republic of Tanzania. It was Mr. Seka’s argument that the petitioner’s constitutional rights were violated throughout the Parliamentary Proceedings. As such, the petitioner did not see the avenue to get a remedy for his grievance under the Parliamentary Standing Orders. Further, Mr. Seka contested the remedy available under Order 5(4) of the Parliamentary Standing Orders contending that there was an issue of bias and for that reason, any attempt by the petitioner under Order 5(4) would end up in futility. Mr. Seka stressed that the petitioner was right to bring the matter to Court and that it has full jurisdiction to entertain the petition. While citing Article 13(6)(a) of the Constitution, Mr. Seka submitted that 21 every person has the right to equality before the law. He clarified that the principle of equality before the law entails an adequate hearing and the right to appeal against the decision made by an individual or a body. He claimed that it was against this background the petitioner brought the petition before this Court. He added that the petitioner resorted to moving

the Court under Article 108 because the procedures complained of are among the basic rights. Mr. Seka complained that the petitioner had no right to appeal under the Parliamentary Standing Orders and for that reason he was entitled to approach the Court. To bolster his argument, the learned advocate invited the Court to the decision in the case of Julius Ishengoma Ndayanabo vs The Attorney General [TLR] 2004 page 14. Mr. Seka recounted that the Court of Appeal held that a court of law is the last resort of the oppressed and bewildered. In that regard, Mr. Seka submitted that anyone seeking a legal remedy should be able to knock on the doors of justice and be heard. He urged the Court to reject any attempt to close the doors to justice. He insisted that the Court should be ready to open its doors to the petitioner. Submitting further, Mr. Seka had it that the Parliamentary Standing Orders 22 made under Article 89(1) of the Constitution under which the petitioner was investigated, prosecuted, and convicted lack constitutional safeguards in determining the rights of the members of parliament. He candidly submitted that the entire procedure of investigating the petitioner violated the petitioner’s constitutional rights. More so, Mr. John Seka lamented that some of the acts for which the petitioner was punished were done outside the Parliament. As such, the learned counsel submitted

that it is only the Court that can decide on the conduct that the petitioner did outside the Parliament. He added that the petitioner was accused and found guilty of telling lies hence a third party, in this case, this Court needed to adjudicate the matter. Still protesting why the petitioner could not appeal to the Speaker of the National Assembly under the Parliamentary Standing Orders, Mr. Seka argued that the very person, the 1st respondent who accused the petitioner also participated in the decision-making session. Mr. Seka emphasized that this Court enjoys the power to entertain the 23 matter because the Parliamentary Standing Orders are subject to the Constitution. He supported his argument with the decision in the case of Said Juma Shekimweli vs Attorney General [1997] TLR 3 where this Court held; ‘No power conferred by law on a public leader or officer is absolute or limitless. Every such power must be exercised in good faith and in accordance with the Constitution and other laws. Any assertion that presidential powers drook no limitation will have no basis in law…’ Mr. Seka continued that where a duty is imposed by the law and that duty is not discharged according to the law, this Court is entitled to question such an error. In a bid to augment his position, the learned counsel referred the Court to the case of Mwalimu Paul John Muhoza vs Attorney General 1996 [TLR

]130 on page 133 where the Court held; ‘The notion apparently harboured by some people in this country that the President of the United Republic of Tanzania is above the law is subversive of the Constitution and laws. All government leaders, including the President, are, like the humblest citizen bound to comply with the laws of this country. The maxim the king can do no wrong has no place in our law 24 even if the word President is substituted with the word king. Everyone and every institution or organization in this country, is enjoined to pay respect to the principle of supremacy of the law.’ Lastly, Mr. Seka referred this Court to the holding of the Court of Appeal in the case of the Attorney General and Two Others vs Amani Walid Kaburu [1996] TLR 156 wherein on page 170, the Court of Appeal held; ’On the face of it, it appears that the Constitution expressly prohibits the Court from inquiry into the validity of such like tamko rasmi, but on deeper considerations of principles that underline the Constitution, it is obvious such an interpretation of the Constitution is wrong. One of the fundamental principles of any democratic constitution including ours, is the rule of law. The principle is so obvious elementary in a democracy that it does need (sic) to be expressly stated in a democratic Constitution. However, for purpose of clarity, there is an express provision to that

effect under the Constitution of the United Republic of Tanzania. It is sub-Artice 1 of Article 26 which states; ‘every person is obliged to comply with this Constitution and laws of the United Republic. In light of this principle, we respectively agree with submissions of Mr. Werema moving up…’ We are satisfied and we find that the High Court in this country like the High Court in England has a supervisory jurisdiction to inquire into the legality of anything done or made by the public authority.’ 25 Based on the above holding, Mr. John Seka argued that although Article 74(12) of the Constitution categorically ousted the jurisdiction of this Court to determine any action of the National Electoral Commission, the Court waved such limitation. He continued that Article 74(12) is similar to Article 100(1) of the Constitution which ousts this Court's powers to question freedom of opinion, debate, and procedure. He thus invited the Court to apply the position taken in Amani Kaburu to lift the veil and inquire into the alleged grievances committed by the 1st respondent. He concluded that this Court has all the mandate to entertain the matter. Mr. Seka added that similar limitations are imposed under Section 3 of the Parliamentary Immunities, Powers, and Privileges Act. He equally urged the Court to apply the supervisory role as the Court did in Amani Walidi Kaburu’s case. Mr. Seka

also challenged that the respondents’ counsel significantly relied on the decisions of the High Court, unlike the petitioner’s counsel who referred 26 this Court to the authorities of the Court of Appeal. He thus invited this Court to put much reliance on the authorities cited by the petitioner’s side. He commented that had the decision of Kaburu been considered, the interpretation of Article 100(1) would have been different. He added that the decision of Augustine Mrema (supra) is distinguishable because it did not take into account the decision in Amani Walidi Kaburu (supra) which was already there. He warned that if Augustine Mrema's decision is considered a good law, it will undermine the import of Article 107A. Mr. John Seka concluded that this Court has all requisite jurisdiction to entertain this matter. Whether the Court has powers to grant all the reliefs prayed by the petitioner, Mr. Seka argued that it is an issue of merits that cannot be considered at this juncture. According to him, of particular relevancy is that the petitioner is entitled to come to this Court. Mr. Ferdinand Makole, the learned counsel for the petitioner, on his part, associated himself with all the submissions made by Mr. Seka. In addition, he said that the petitioner does not challenge the procedures that were 27 involved in the suspension but rather the petitioner invites this Hon. Court to

test whether the suspension was in consonance with the law and Constitution. Further, Mr. Makole submitted that this Court should depart from the decision in Augustine Mrema because it relied much on parliamentary supremacy instead of constitutional supremacy which is enshrined under Article 108(1) of the Constitution. Commenting on the legal force of the decision in the case of Amani Walid Kaburu, Mr. Makole had it that Augustine Mrema’s case was decided in the obliviousness of Kaburu’s case. He said that by virtue of the doctrine of stare decisis, Mrema’s case is per incuriam. Regarding the objection on the misjoinder of the 2nd respondent, Mr. Makore initially opposed the objection saying that it was proper to implead the 2nd respondent as he was the one who triggered the matter. However, in the course of submission, Mr. Makole changed his earlier position and invited the 28 Court to take a recourse as provided under Order 1 Rule 10(2) of the Civil Procedure Code and as discussed in the case of Tanzania Railways Corporation (TRC) vs GBP (T) Limited, Civil Appeal No. 218 of 2020, CAT at Tabora. Mr. Edson Kilatu, the learned advocate for the petitioner confined his reply submissions on the alternative remedies. Mr. Kilatu said that for an alternative remedy to qualify, there must be redress that is convenient, feasible, and effective in the circumstances of each particular

case. He challenged that the petitioner cannot resort to an alternative remedy simply as a matter of procedure. Mr. Kilatu attacked the remedy provided under Order 5(4) of the Parliamentary Standing Orders saying that it does not meet the litmus test. He candidly submitted that presenting the complaint before the 1st respondent as suggested under Order 5(4) cannot be an effective remedy as it would be tantamount to rendering the 1st respondent a judge on his own case. In support of his argument on the litmus test (effective and 29 feasible remedy), Mr. Edson Kilatu relied on the case of Abadia Salehe vs Dodoma Wine Company Limited [1990 ] TLR 113. In the alternative to the foregoing submissions by Mr. Kilatu, he had it that there was no other available remedy to the petitioner because the decision complained of was eventually sanctioned by the entire National Assembly which is the final authority. Commenting on the remedy of a judicial review, Mr. Kilatu submitted that it was neither convenient nor effective because, under judicial review, the applicant can only obtain orders of mandamus, certiorari, and prohibition. He elaborated that one of the reliefs sought by the petitioner is compensation which cannot be obtained through judicial review. While distinguishing the cases of Freeman Aikael Mbowe and Tanzania Cigarette Company LTD cited by the respondents’ counsel, Mr. Kilatu

was insistent that it is only through this constitutional petition that the petitioner may obtain the necessary reliefs. Mr. Kilatu continued that judicial review is among the ancient common law 30 remedies that traditionally required a party to exhaust the available remedy before resorting to it but the present petition is made under Article 108(2) and 107A(1) of the Constitution both of which do not require exhaustion of local remedies. He opined that, in the circumstances of the instant case, the available remedy with no legal encumbrances whatsoever is by invoking Articles 107A and 108(2). He observed that it would be improper to resort to a judicial review remedy without first exhausting the remedy under Articles 107A and 108(2)of the Constitution. Mr. Edson Kilatu proceeded that the constitutional petition is effective in terms of speed unlike a normal civil suit that would require 90 days' notice and hence by the time the suit is concluded, it would have no effect. To bolster his point on the effectiveness of the remedy, Mr. Kilatu referred this Court to the case of Bob Chacha Wangwe and two others vs The Minister, President’s Office Regional Administration and Local Government, and Another, Misc. Civil Cause No. 19721 of 2024 on page 32 where this Court held that where an appeal has proved ineffective and 31 the requisite grounds exist, the aggrieved party may seek and

the court would be entitled to grant the reliefs by way of prerogative orders. The learned counsel clarified that if the remedy is not effective, a party is at liberty to pursue his rights without exhausting the available remedy. He thus urged this Court to borrow the wisdom from the decision in Chacha Wangwe’s case. Further, Mr. Kilatu distinguished the case of Paul Revocatus Kaunda (supra) from the present circumstances saying that in that case, the applicant had an effective remedy under Article 83(1)(b) of the Constitution but preferred the remedy under Basic Rights and Duties Enforcement Act (BRADEA) which was not appropriate. More so, Mr. Kilatu explained that another important point as to why the petitioner resorted to Articles 108(2) and 107A is that through Written Laws Misc. Amendment No. 3 of 2020, the BRADEA was amended by conferring immunity on certain public authorities including the Speaker. As such, the petitioner had the doors closed for suing the 1st respondent who 32 sparked the matter. He argued that the petitioner could only succumb to remotely sue the Speaker through the Attorney General which could not quench the petitioner’s thirst in that his interest was to bring the Speaker to the Court under her official capacity to test the constitutionality of her acts. He concluded that the present petition would have deterrent and more effective implications than

bringing the Attorney General who is completely strange to the saga. In rejoinder, Mr. Webiro clarified that he did not mean that this Court is barred completely from questioning anything done by the Parliament but rather he made it clear that this Court can question anything that the Parliament did without jurisdiction or where the Parliament had contravened the mandatory provisions of the Constitution or exercised the powers not granted to it. Mr. Webiro recapped that where the Parliament acts within jurisdictions then this Court under Article 100 of the Constitution is prevented from questioning the procedural impropriety of such acts. He stressed that the petitioner’s 33 suspension which is complained of was within the jurisdiction of the Parliament hence the Court is barred. Regarding Mr. Seka’s submission that the procedures of suspending the petitioner contravened the provisions of the Constitution, Mr. Webiro rejoined that throughout the complained procedures under paragraphs (g) to (t) of the petition no specific provision of the Constitution was indicated to have been contravened. The learned State Attorney underscored that the contentions that the petition is challenging the constitutionality of the procedures were not borne from the pleadings but rather they were mere submissions from the bar. Mr. Webiro candidly elucidated that for a matter to qualify as a

constitutional case, the petitioner is duty-bound to show the specific provision of the statute or a specific act alleged to be unconstitutional and the provision of the Constitution allegedly contravened. He continued that the essence is to give the Court an opportunity to ascertain whether the allegations are true. He lamented that failure to indicate the contravened provisions of the 34 Constitution disqualifies this case as a constitutional one but a normal case challenging the improper exercise of powers of the Parliament. He impressed the Court to invoke the principle that parties are bound by their pleadings and find that the petition is challenging the improper exercise of powers by the Parliament. He echoed that the court has no jurisdiction to entertain the matter. While commenting on the decision in the case of Julius Ndyanabo that was heavily relied on by Mr. John Seka, and insisted that people have the right to access the Court and should not be denied such right, the learned State Attorney pronounced himself that he had no squabble with the holding of the Court in Ndyanabo’s case. He referred the Court to Article 26(2) of the Constitution and amplified that in accessing justice a party is obliged to follow the laid down procedures. He further distinguished the case of Ndayanabo on the rider that it did not discuss Article 100 which governs the parliamentary

immunities. He said that Ndyanabo’s case was a pure constitutional case because it was challenging section 111 of the Election Act unlike the present one. 35 Also, Mr. Webiro criticized that although Mr. Seka cited the case of Sheikimweli which was a judicial review case, the same was overturned by the Court of Appeal. Hence, the learned State Attorney observed that the High Court decision is no longer a good law. Concerning Mr. Seka’s argument that the Parliamentary Standing Orders give the 1st respondent powers to be the complainant and judge on his own case, Mr. Webiro explicated that since that is the position of the law as of now, the appropriate recourse was to question the constitutionality of those provisions. Further, Mr. Webiro submitted that Mr. John Seka wanted this Court to believe that the case of Lyatonga Mrema is in conflict with the decision of Walid Kaburu. The learned State Attorney assured the Court that Kaburu’s case is, in any event, not in conflict with Lyatonga Mrema. He amplified that the principle enunciated in Mrema’s case is the same as that in Amani Kaburu on pages 12 to 13 to wit, where the Parliament acts beyond jurisdiction then the Court has powers to question those conducts. 36 He consequently urged the Court to find the principles in Lyatonga Mrema’s case still valid and applicable to the instant matter. Responding to the attacks that the

respondents’ counsel only relied on High Court decisions, he submitted that since the said decisions were not overturned by the Court of Appeal they are still valid and applicable to the matter at hand. Rejoining Mr. Kilatu’s submission on the effective, convenient, and feasible remedy provided under Order 5(4) of the Parliamentary Standing Orders, Mr. Webiro submitted that much as the petitioner is not challenging the provisions of the Orders but the acts of the 1st respondent, he was duty bound to follow the procedures provided thereunder. Regarding the petitioner’s decision to decline to pursue a judicial review on the rider that it does not provide other reliefs such as compensation, the learned State Attorney was of the view that even in a constitutional petition, compensation cannot be granted. To fathom his stance, Mr. Webiro referred 37 the Court to the provisions of Article 30(5) of the Constitution and expounded that compensation is not among the redress available. Mr. Webiro further countered the argument by Mr. Kilatu that the principle of alternative remedy does not apply where the petition is brought under Article 108 but rather under BRADEA. He was very articulate that the principle of exhausting available remedy applies to both petitions under BRADEA and any other constitutional provision. To fortify his position, he referred the Court to the case Kaunda

(supra). Moreso, Mr. Obadia Kamea remarked that Article 108 may not be used as an alternative to appeal. He outlined that where there is no right to appeal, there are two remedies namely, revision and judicial review. He submitted that in the circumstances of the case, judicial review was the most viable recourse. Having provided a precis of the rival submissions and the obtaining facts, it behooves me to determine the raised preliminary objections. Both parties commenced with and submitted at length in respect of the objection to the 38 effect that this Court has no jurisdiction to entertain the matter. On my part, I am persuaded and prepared to follow the same path in determining the points of objection. Simply put, I am going to begin with the determination of the jurisdictional issue. From the rival submissions made, the thrust of objection on the jurisdiction of this Court is anchored on the constitutional principle of parliamentary privileges and immunities which is one of the components of the doctrine of separation of powers. Richard Benwell and Oonagh Gay in Standard Note: SN/PC/06053 on page 1 define the separation of powers as follows; ‘Separation of powers” refers to the idea that the major institutions of state should be functionally independent and that no individual should have powers that span these offices. The principal institutions are usually taken to be the

executive, the legislature and the judiciary.’ Furthermore, the authors, on page 6, discuss the parliamentary privileges in democratic states. They say; ‘Article 9 of the Bill of Rights 1689 set out the principle of privilege of Parliament: freedom of speech and debate. According to Lord Neuberger, Master of the Rolls, it is “an absolute privilege and is of the highest constitutional 39 importance”. Any attempt by the courts to contravene Parliamentary privilege would be unconstitutional. No court order could restrict or prohibit Parliamentary debate or proceedings. On the other side of the coin, there is a convention that Members of Parliament will not criticise judicial decisions. This is complemented by the sub judice rule that guards against Parliamentary interference in cases currently before the courts.’ The above literature underscores the relevance of separation of powers and sheds some light on the manner and scope within which the state organs check each other. As hinted above, Mr. Webiro argued that the petition is incompetent and therefore this Court lacks jurisdiction to entertain the matter in terms of Article 100 of the Constitution and Section 5 of the Parliamentary Immunities, Powers, and Privileges Act. The respondents’ counsel contended that the petitioner is challenging the impropriety of the parliamentary proceedings and the resultant punishment of

suspension from fifteen (15) parliamentary sittings. He was thus of the firm view that the petitioner’s grievances cannot be entertained by the Court because they are ousted from the court’s intervention by virtue of the above provisions of laws. 40 In rebuttal, the petitioner’s counsel opposed the objection saying that the petitioner is challenging the constitutionality of the provisions of the Parliamentary Standing Orders and hence, in terms of Articles 108 and 107A this Court enjoys full mandate to entertain the petitioner’s complaints. For the purposes of clarity and completeness, it is worthwhile to reproduce the relevant provisions of the law on which the preliminary objection is pegged. Article 100 of the Constitution provides; ‘100.-(1) There shall be freedom of opinion, debate and procedure of immunity from business in the National Assembly, and that freedom shall not be breached or questioned by any organ in the United Republic or in any court or elsewhere outside the National Assembly. (2) Subject to this Constitution or to the provisions of any other relevant law, a Member of Parliament shall not be prosecuted and no civil proceedings may be instituted against him in a court in relation to anything which he has said or done in the National Assembly or has submitted to the National Assembly by way of a petition, bill, motion or otherwise.’ Further, section 5 of the

Parliamentary Immunities, Powers, and Privileges Act provides; 41 ‘No civil or criminal proceedings may be instituted against any member for words spoken before, or written in a report to the Assembly or a committee, or by reason of any matter or thing brought by him therein by petition, bill, or motion or otherwise or for words spoken or act done in bona fide pursuance of a decision or proceeding of the Assembly or a committee.’ As good luck would have it, it is not the first time for this Court to test the provisions of Article 100 in relation to the suspension of a Member of Parliament like the present petitioner. Having extensively examined the import of Article 100 in particular on the aspect of Parliamentary immunities and privileges, this Court (Katiti J as he then was) in the case of Augustine Lyatonga Mrema (supra) pages 224-225 held: ‘Having, however, considered the pros and cons of submissions, article 100, section 12 of the Act and of course Patricia’s case (7), I think both learned and illiterate will concede that for most of its activities, and by their nature, the National Assembly is the sole judge of its own privileges and duties in its business. This is not to say that Parliament cannot be questioned on anything regardless of its constitutional limits; after all as a creature of the Constitution it cannot, in my view, claim immunity if the proceedings are held

without jurisdiction, e.g. in defiance of the 42 mandatory provisions of the Constitution, or by exercising power which Parliament does not, under the constitution, possess.’ The above holding has not been overturned nor has Article 100 been amended to date. Thus, going by the above decision, it is common cause that the Court would be entitled to inquire into parliamentary business only if the acts complained of were done either without jurisdiction for example, in contravention of the mandatory provisions of the Constitution, or in the exercise of powers which the Parliament does not possess. The immediate next question therefore is whether the proceedings against the petitioner and the consequent suspension which are sought to impugned were conducted in violation of the mandatory provisions of the Constitution or whether the Parliament did not possess such powers. It is undisputed that the petitioner was investigated and subsequently suspended under the provisions of the Parliamentary Standing Orders. These orders are made under Article 89 of the Constitution which empowers the National Assembly to enact Standing Orders for the purpose of prescribing procedure for the conduct of its business. 43 I have keenly read the provisions of Orders 82, 83, and 84 and Part One of the Eighth Schedule (Sehemu ya Kwanza ya Nyongeza ya Nane) of the Parliamentary Standing Orders in respect

of the powers of the Speaker and the KAMATI YA HAKI, MAADILI NA MADARAKA YA BUNGE, and the procedures for inquiry. Undoubtedly, the above provisions empower the Speaker and the KAMATI YA HAKI, MAADILI NA MADARAKA YA BUNGE to do what they did. As such, I am satisfied that the Parliamentary proceedings and the subsequent suspension complained of by the petitioner were neither violative of the Constitutional provisions nor can one dare say that the National Assembly exercised the powers which it did not possess. In reply submissions, Mr. John Seka suggested that the petitioner was challenging the constitutionality of the provisions of the Parliamentary Standing Orders which were used in suspending the petitioner. With due respect to Mr. Seka, this is not born from the petitioner’s pleading. Looking at the contents of the petition and the reliefs sought, it is clear that the petitioner is assailing the impropriety or irregularities in the proceedings and 44 the punishment allegedly imposed by the 1st respondent. For example, the petitioner prays, among others, for the following reliefs; 1. DECLARATION that the suspension order by the 1st respondent denied the general public right to access information in terms of section 5(1) of the Access to Information Act, No. 6 of 2016.

2. DECLARATION that the suspension order was made without formal resolution of the National Assembly as required by the provision of order 68(7) of the Parliamentary Standing Orders, February Edition, 2023.

3. DECLARATION that the suspension order was made without affording the petitioner the right to be heard, fair hearing, and defence.

4. DECLARATION that the suspension order made by the 1st respondent is unconstitutional, unlawful, illegal, null, and void with no legal force.

5. DECLARATION to nullify the suspension order and reinstitute back the petitioner in the August National Assembly.

6. THAT, having nullified the suspension order, this court declares that the petitioner is entitled to all benefits, remunerations, and privileges in the entire period of his suspension. 45 Undeniably, upon critically looking at the reliefs above, nowhere the petitioner is challenging the constitutionality of a specific provision of the Parliamentary Standing Orders. Moreover, Mr. John Seka put much reliance on and invited this Court to follow the position taken by the Court of Appeal in the case of Amani Walidi Kaburu (supra). Nonetheless, upon reading the said case, I noted that Article 100 of the Constitution was not in issue nor were Parliamentary immunities and privileges discussed. As such, the case of Amani Walidi Kaburu is not on all fours to the present matter. Notwithstanding the foregoing, the Court of Appeal made it very clear that the court’s intervention is justifiable only where the alleged acts are contrary to the Constitution and the relevant laws. On pages 12-13, the Court held; ‘In the light of this principle, we respectfully agree with the submission of Mr. Werema, Learned Senior State Attorney to the effect that Sub-Article (12) of Article 74 of the Constitution cannot be interpreted so as to protect unconstitutional or illegal acts or deeds of the Electoral Commission from inquiry "by the courts of law. This means that the protection from inquiry by

the 46 Courts applies only to acts or deeds made according to the Constitution or the relevant law. It follows therefore that any act or deed made contrary to the Constitution or the relevant law is subject to review or inquiry by the appropriate courts of law.’ Besides, Mr. Seka forcefully submitted that the Court’s doors should be open and accessible to every person. Whereas I entirely agree with Mr. Seka that this Court’s doors should be open to everybody, it is equally important to note that a Court is accessible through procedures provided under the laws and therefore people coming to court including the petitioner must abide by the relevant procedural laws. On the above account, I am inclined that the acts complained of were within the walls of the National Assembly and for that reason, this Court is barred, in terms of Article 100 of the Constitution, from questioning them. Noteworthy that in upholding the doctrine of separation of powers in particular the parliamentary immunities and privileges as provided under Article 100 of the Constitution, the Court is not enjoined to inquire into 47 internal parliamentary businesses that are not at variance with the Constitutional dictates. The limitation is common in many jurisdictions. Explaining the limitation of the judiciary under the doctrine of separation of powers, Nicholas Kilford in his article ‘Separation of Powers: A

Theory for the New Order’ Durham Law Review Volume IV, 2019, says; ‘The separation of powers is not then a license for unbridled judicial action, (or indeed inaction) but rather a new form of constitutional legitimacy for their part within the constitution system, and further provides a way of understanding what the courts are already doing.’ In view thereof, I find the third preliminary objection on the jurisdiction of the Court meritorious, and consequently, I sustain it. Much as the jurisdictional issue is sufficient to dispose of the matter, I am of the considered opinion that deliberation on the other two objections serves nothing more than an academic exercise. All the above said, I hereby strike out this petition for want of jurisdiction and since this is a public interest litigation, I make no order as to costs. It is so ordered. 48 The right of appeal is explained. A.A. Mbagwa

JUDGE 24/10/2024 Court: Ruling has been delivered in the presence of Mr. Ferdinand Makole and Mr. Fredrick Msaki, learned advocates for the petitioner and the petitioner in person, on the one hand, and Mr. Hang’i Changa (PSA), Mr. Obadia Kameya (PSA) and Mr. Pius Mboya (PSA), for the respondents, on the other hand. A.A. Mbagwa

JUDGE 24/10/2024 49