legal and human rights centre lhrc others vs attornery general 2006 tzhc 76 5 may 2006

1

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM (MAIN REGISTRY) (CORAM: KIMARO, J. MASSATI, J. AND MIHAYO, J.) MISCELLANEOUS CIVIL CAUSE N 0.77 OF 2005

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA, 1977

AND

IN THE MATTER OF A PETITION TO ENFORCE A

CONSTITUTIONAL BASIC RIGHT UNDER THE BASIC RIGHTS AND DUTIES ENFORCEMENT ACT, 1994 AND IN THE MATTER OF THE ELECTIONS ACT, NO.l OF 1995

AND

IN THE MATTER OF A PETITION TO CHALLENGE AS UNCOSNSTITUTIONAL SECTIONS 98 (2) AND 9893) OF THE ELECTORAL LAW (MISCELLANEOUS AMENDEMEND) ACT 4/2000

BETWEEN LEGAL AND HUMAN RIGHTS CENTRE (LHRC) - r‘PETITIONER LAWYERS’ ENVIRONMENTANTAL ACTION TEAM (LEAT) -2ndPETITIONER

NATIONAL ORGANIZATION FOR LEGAL ASSISTANCE (NOLA) . 3rdPETITIONER

VERSUS THE ATTORNEY GENERAL _____ -RESPONDENT JUDGMENT OF MIHAYO, .T: I have read the judgm ent of Kimaro, J. in draft and I am positive that I concur with her findings. I have also read the judgm ent of Massati, J. in draft, and likewise I concur. I agree that the two preliminary objections on points of law should be dismissed. It makes sense to define the word “person” in accordance with the Interpretation of Laws Act [Cap I R.E. 2002], Article 13(3) of the Constitution has this to say:- “Haki za raia, wajibu na maslahi ya kila mtu na jum uia ya watu yatalindwa na kuamuliwa na mamlaka na vyombo vinginevyo vya Mamlaka ya Nchi vilivyowekwa na sheria au kwa mujibu wa sheria (emphasise mine) The sub article enforces the view taken by Kimaro and Massati JJ that the word uperson ” cannot be confined to natural persons only. The approach and decision adopted by this court (Lugakingira, J. as he then was) in Rev. Christopher M tikila vs. Attorney General [1995] TLR 31 in dealing with the principle of locus standi is sound and correct. The first ground of preliminary objection should therefore be dismissed. The second point o f preliminary objection, that the petition does not disclose a cause of action is, likewise not meritorious. The court will look at the im pugned law and how it may affect society. It will look at the nature of the provisions them selves and not the m

anner in w hich the pow er under the provision is exercised. I w ould therefore also dism iss this ground of prelim inary objection. The “ta k rim a ” provisions are discrim inatory. They seek to legalise an action in relation to one group o f the society which w ould be illegal if done by another group o f the sam e society. A frican hospitality has been known for ages. It does not need codification. It is priceless, hum ble and timeless. It does not resurface with the advent of elections. If this happens, it ceases being african hospitality. It becom es business. In pure african hospitality, it is the host who entertains, mostly relatives and friends, not the guest. Part of section 130 of the National Elections A ct (the Act) dealt adequately with situations which go out of tradition. The section says: " 130. When it appears to High Court either on application or upon an election petition - (a) that an act or omission o f a candidate at any election or o f his agent or o f another person, which but fo r this section, w ould be corrupt or illegal practice has been done or m ade in good fa ith through inadvertence or 4 accidental miscalculation or some other reasonable cause o f that nature; (b) that an act o f a candidate, his agent or another person was done in good faith as o f normal or traditional hospitality; (c) that normal or ordinary expenses were spent in good fa ith

by a candidate, his agent or another person in furthering the candidate’s election campaign; and (d) that upon taking into account all the relevant circumstances it would be ju st that the candidate or his agent or that other person, or any o f them, should not be subject to any o f the consequences under this Act fo r such act or omission, the High Court may make an order allowing the act or omission to be an exception from those provisions o f this Act which would otherwise make the act or omission corrupt or illegal practice, and the candidate, agent or person shall not be subject to any o f the consequences under this Act fo r the act or omission and the election o f a candidate shall not by reason only o f such act or omission be void. ” 5 As can be seen sub-sections (b) and (c) are a repetition of the impugned provisions herein. These two provisions are, likewise undesirable. I would, likewise, order that they be struck out, under “a n y ” other reliefs. The introduction o f the ‘takrim a’ provisions was unnecessary and created classes on the playing field favouring the financially well to do. This is what is called discrimination within the meaning of Article 13 (5) o f the constitution. I also agree that the “takrima” provisions are not saved by the proportionality test because as said by advocates for applicants, the m ischief created is more serious than the object

sought to be achieved. Moreover, as stated above, the provisions were unnecessary in view o f part o f section 130 o f the Act. The provisions are also too widely woven as to render useless the spirit o f the Act vis a vis the serious offence of treating. Finally, I agree that the “takrima” provisions are violative of Articles 13 (1) 13 (2) and 2 1 (1 ) and (2) o f the Constitution and are therefore null and void. They should accordingly be struck out of the National Elections Act. I also agree that each party should bear their own costs. It is so ordered. T.B. Mihayo

JUDGE I certify that this is a true copy of the original.

DISTRICT REGISTRAR