20100617 TZCA Dar es Salaam

11. IN THE COU~.T OF APPEAL OF TANZANIA

AT DAR ES SALAAM ✓ ('CORAM: RAMADHANI, C. J.; MUNUO, l. A.; MSOFFE, l. A.; KIMARO, J. A.; MBAROUK, J. A.; LUANDA, J. A.; And MJASIRI, J. A.) CIVIL APPEAL NO. 45 OF 2009 1i THE HONOURABLE ATTORNEY GENERA~ ............................... APPELLANT Versus REVEREND CHRISTOPHER MTIKILA ..................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam,) (Manento, l. K~; Massati, J. And Mihayo, J.) · . dated the 5 th daj of May , 2006 in Misc. Civil Cause No. 10 of 2005 ---------------

JUDGMENT OF THE COURT 9th April & 17th June 2010 RAMADHANI, C. J.: For the ·ease of reference and to avoid a possible mix-up and confusion, . we shall . refer to the parties! simply as Rev. Mtikila .for Reverend Christopher Mtikila, the respondent/petitioner, on the one hand, and the A. • I • G. for the Attorney General, the -~ppellant/respondent, on the other hand. Also to appreciate mostfully what is: at stake: i~ this appeal we have ·to preface this judgment with a brief background. Way back in 1993 Rev. Mtikila filed Misc. Civil Cause N,O': 5 of 1993, challenging, among other matters~ the prohibition of independent ' candidates for presidential, parli.3.mentary and civic elections. which ·was c~ ~ ~"' ;t· intrbduced by the Eighth Constitutional Amendment Act, 1992. That Act amended Art. 39 ,which previously provifed as follows: ''No person shall be eligible fo~ election to the office of President of the United Republic Vlnless he - (a) has attained theage (j)f forty years; and I , I, .·. (b) .is otherwise qualified![ for election as a Member of the National Assefbly or of the (Zanzibar) House of Representat{ves. " The Eighth Amendment retaindd the above· paragraphs but re- l! numbered them as (b) and (d) respecqvely and added new paragraphs (a) and ( c) which state: "(a) is a citizen of the United Republic by birth; (c) is a member of and sponsofed by a political

party." I ! I That requirement for membershi;p of and sponsorship by a political party applies also to parliamentary elections under Articles 67 and 77 and to local council elections under s. 391:of the Local Authorities (Elections) Act, 1979, as amended by the Local · i uthorities (Elections) (Amendment) ! Act, 1992, (Act No 7 of 1992). i Rev. Mtikila's contention before ~UGAKINGIRA, J. (as he then was) was that the requirement for member+p of and sponsorship by a political party abridged the right to participate in national public affairs under Art. I 21(1) of the Constitution which provide~:- 2 T !i "Every citizen of the United R:epublic is entitled to take part in matters pertaining tb the governance of the I count(½ either directly or through representatives freely elected by the people in confJ~mity with procedures laid1! ! down by, or in accordance with the law. " I < LUGAKINGIRA, J. poignantly summed up his dilemma as we shall see later 1 1: and concluded that: . j ''For everything I have eqdeavored to state and . ~ notwithstanding the exclusionfry elements to that effect in arts 39, 67 and 77 of the Oonstitution as well as s 39 j of the Local Authorities (Elections) Act 1979, I declare and direct that it shall be /awful for independent 1 candidates, along with cJndidates sponsored byjl political parties, .to icontest presidential, parliamentary and local council

elections. This will iI not apply to the council electJ1ns due in a few days. " (Emphasis is ours.) The learned judge restrained himself I not to declare the various 11 constitutional provisions to be unconstitutional though he had been invited I to do so. We shall revert to this at an appropriate stage. However, soon after that jud~ment the A. G. reacted in two simultaneous ways: he filed an appeal !in this Court and sent to Parliament ,1 1: the Eleventh Constitutional Amendment, Act No. 34 of 1994, whose effect 3 l I was to nullify the declaration and the ,: irection of LUGAKINGIRA, J. and to maintain the constitutional position whllich had been before the decision of Misc. Civil Cause No. 5 of 1993. I We have already reproduced Article 21(1) in English version but for the sake of clarity we shall recite it agalin in Kiswahili, both as it was before its amendment by Act 34 of 1994J and as it reads now after the "Ki/a raia wa Jamhuri ya f amendment. Before the amendment, it-II reads as follows: uungano anayo haki ya kushiriki katika shughuli za utawala wa nchi, ama moja kwa moja au kwa kupitia walakilishi waliochaguliwa na wananchi kwa hiari yao, lwa kuzingatia utaratibu uliowekwa na sheria au ~wa Jujibu wa sheria. " _ After the amendment that sub-Article jads the same way but it is prefaced . i by the following formulation: ''Bila ya kuathiri masharti ya ~tJara ya 39, ya 47

na ya 67 ya Katiba hii na ya sheria za tchi kuhusiana na masharti ya kuchaguwa na kuchaguliw(, au kuteua na kuteuliwa kushiriki katika shughuli za ut9wala wa nchi, ... " That reads in English as follows: ''Subject to the provisions 01 Articles 39, 47 and 67 of this Constitution and of tre laws of the land in connection with the conditio~ s for electing and being 4 ! elected or for appointing an{ being appointed to take part in matters related to gov1rnance of the country, ... " I In the petition, Misc. Civil _cause No.I 10 of 2005, the subject matter of this appeal, Rev. Mtikila challenged the Eighth Amendment and asked the High Court of Tanzania to grant the foll6wing four prayers: I . (a) A declaration that the constitutiional amendment to Articles 39 and 67 of the Constitution of th~ United Republic of Tanzania as introduced by amendments c~ntained in Act No. 34 of 1994 is unconstitutiona I. (b) A declaration that the petitio1er has a constitutional right under Article 21 (1) of the Constitution of the United Republic of ,: I! Tanzania to contest for the post of the seat of a member of parliament of the United Rt public of Tanzania as a private i candidate. ; ( c) Costs of this petition be borne by the Respondent. (d) Any other remedy and/or reli~f the honourable Court will deem equitable to grant. i i I Three judges of the High Court of Tlnzania, MANENTO, J. K.,

MASSATI, I! J., and MIHAYO, J. (all three Judge~ as they then were) granted the < prayers except for costs which th6;Y ordfred each party to bear its own. We . better let the High Court speak for itself: "We thus proceed to declare the alleged amendments 'I i' unconstitutional and contrary to the International Covenants to which Tanzani~ is a party. " . 1, 5 : , The A. G. has preferred this appeal in which he was represented by Mr. George Masaju, the learned Deputy Attorney General, assisted by Mr. Matthew Mwaimu, learned Principal State Attorney. The respondent, on the other hand, had the services of Mr. Richard Rweyongeza, learned advocate, assisted by Mr. Mpale Mpoki, learned counsel. The Chief Justice decided that the appeal be heard by a Full Bench of seven Justices of Appeal. He also invited four friends of the Court: Mr. Othman Masoud, the Director of Public Prosecutions, Zanzibar; Prof. Palamagamba Kabudi; Prof. Jwan Mwaikusa and the Chairman of the National Electoral Commission, who was represented by the Director of Elections, Mr. Rajabu Kiravu. We are extremely grateful to all. First and foremost let us take the opportunity to correct one thing: There is nothing like "a private candidate". That is a direct translation from Kiswahili "mgombea binafsi". But the right terminology is "an independent candidate", as Prof. Kabudi, properly pointed out, and in this judgment

we shall use that terminology. The A. G. had seven grounds of appeal but at the hearing he dropped grounds three and five and consolidated grounds one and two. However, in this judgment we are going to deal with grounds one and two separately. Otherwise, we are going to follow the order in which Mr. Masaju argued the remaining five grounds which will, necessarily, be renumbered. 6 Mr. Masaju started with the last grounl, ground number 7, which is now . . .· : .. II . ground number 5, and which avers as f1llows: "That the High Court erred in law in proceeding with 'the determination of the petition ,)ithout framing issues. " i ' Admittedly, the High Court did n<l>t frame issues and we agree with Mr. Masaju that that offends O XIV ~ 1(5) of the Civil Procedure Code I [Cap. 33 R. E. 2002] which provides as follows: ''{5) At the first hearing of the /suit the court shall, after reading the plaint and the writt~n statements, if any, and after such examination of the!' parties as may appear necessary, ascertain upon what aterial proposition of fact 1 or of law the parties are at variance, and shall thereupon ! proceed to frame and record th~ issues on which the right decision of the case appears to dbpend " i The High Court itself said in its judgmJt: ''Although the court did not form1late the issues to be tried, the petitioner has framed and bo~h parties have fully argued on the

following issues: . I! · (i) Whether the sectionk, namely Article 39 (1) I (c) and 39 (2) an4Article 67 (b) and 67 (2) ( e) are unconstitutional. (ii) Whether the said sedions meet the I proportionality test. ' 7 (iii) Whether the said a1endment introduced by Act No. 34 ofl 994 cqntravenes the lnter,national lnstrum}nts signed, ratified and deposited by the Go~ernment of the United Republic of Tanzanial(' The court was thus fully aware of thel provisions of the CPC but was also cognizant of the fact that the petition ,r had suggested three issues which ! were adopted by the A. G. hook, line 1nd sinker as ·is apparent in his reply to the written submissions of Rev. Mtildla: ! I I ''.As long as the issues were no~ agreed upon between the parties yet our submissions will Viscus:s- them as nearest as I possible. " · This Court in Abel Edson Mwa~anyamale v. N. B. C. (1997) Ltd!. Civil Appeal No. 63 of 2003 ( unr~ported) cited with approval the ! observation of Sir BARCLAY NIHIL, IP. in Janmohamed Umerdin v. Hussein Amarshi_and Three Other~ (1953) 20 EACA 41 at p. 42 that: ''It may be that where/ as he)e, neither party asked for issues/ the validity could not be }uccessfully attacked on the ground that the court shoJ/d have framed issues/ nevertheless, in my view neithe~ the court nor the counsel are entitled to leave out the reqUirements of Order 14 Rule 5✓ this being a rule

governinb the conduct of a civil I proceeding. " 8 This Court in that same appeal, referr~d also to MULLA on The Code of Civil Procedure, l_Sth edition, p. 1421: "The answer depends on the following considerations. It though no issue is framed on the fact, the parties I adduce evidence on_ the fadi and discuss it before the Court decides the point, as if there was an issue framed on it, the decision will not be set aside in the appeal on the ground merely that no issue was framed ... The reason is that mere omissio , to frame an issue is not fatal to the trial of a suit unless the omission has affected the disposal of the case on the merits .., " I I The mere omission, on the part bf the trial court, to frame an issue in a matter of controversy bJtween the parties, cannot be regarded as fatal unless, upon exa~ination of the record, it is found that the failure to frame the Issue had resulted in the parties (i) having gone to tt,e trial wit~out knowing that the said question was in issue between them, and (ii) having therefore i failed to adduce evidence on the point. After reviewing those two authorities this Court said: ''In view of the unorthodox }rocedure followed by the learned trial Judge, we .are )ot certain that the parties had gone to trial knowing Jhat was the real question between them, non°payin+t of the debt or the purported invalidity of the M0rtgage Deed! As we

have 9 !I !' :i i: explained before, the _parties did not adduce any evidence at the trial and so the decision of the learned trial Judge was not based on evidence'~ I Their Lordships then set aside the -relevant parts of the proceedings , that were affected and ordered a retrial before another judge. This appeal is a totally different scenario from that of Abel Edson Mwakanyamale and so we cannot take a leaf from that appeal and order a retrial. We are of the decided opinion that even if issues were not framed, since the parties being ad idem as to what was at stake, had fully addressed the points in dispute, and since the court made its decision based on their submissions, then no injustice was occasioned and this appellate Court will not interfere s;olely on that score. In fact, we are just being consistent with a recent decision of this Court in Jaffari Sanya Jussa and Another v. Salehe Sadiq Osman, Civil Appeal No. 51 of 2009 (unreported) citing lih Edition of Mulla at p. 719 which is in pari materia with page 1421 of the 15th Edition. We, therefore, dismiss this ground of appeal. Then Mr. Masaju tackled what had been ground six reading as follows: That the High Court erred in law and in fact by subjecting the Constitution to International Instruments. Mr. Masaju pointed out that the Uhited Republic of Tanzania has not . ' surrendered its sovereignty in any war and that is

why Article 177 B requires courts, when dealing with disp~tes, to take into account only the provisions of the Constitution and laws ~r the country. However, we agree with Mr. j, Rweyongeza that .International Instruments were not the conclusive faqor in the judgment so even if they were to be ignored the judgment will [remain intact. The learned judges said: IIi ''In the event, we agree with t(Je learned counsel for the petitioner, that the amend~ents to Articles 21 (1), 39(1)(c) and 67(1)(b) of 1 the I Constitution also contravenes the Internation~I Conventions. So we I! answer the third issue also in the affirmative. " 1 (The emphasis is ourJ .) I It is clear to us that the ~ord "f lso" used in the above paragraph meant "in addition to". Thus the International Conventions were considered in addition to the position that had alre~dy been taken by the court. I This Court in D. P. P. v. Daudi P~te [1993] T. L. R. 22 ruled that reference to International Instruments i'.s in order when interpreting the Bill of Rights of our Constitution. This Cou~ said at p. 34: "Tanzania signed the [African I Charter on Human and Peoples' ·Rights] on 31 May 1 82 and ratified it on 18 7 February 1984. Since our Bill bf rights and Duties was 11l1 • introduced into the Constitution 'nder the Fifth Amendment in February 1985, that is,' sligh~ly over three years after I Tanzania signed the Charter,

/and about a year after I ratification, account must be taken of that Charter in interpreting our Bill of Rights and Duties." (Emphasis is ours.) So, we are at one with Mr. Rwey9ngeza in his reply that reference to International Human Rights Instrumen~s has been ordained by this Court. I We, therefore, cannot fault their lords~ips in any way and this ground of appeal is dismissed, too. I In what had been ground 4 the appella'.nt averred: That the High Court erred in 1Jw by assuming legislative powers. ; To beef up this ground Mr. Masaju refJrred us to what the High Court said:. "We shall also declare in the present case that in ! . I principle it shall be lawful for private candidates to contest for the post of Rresident and Member of Parliament along with candidates nominated by political parties. However, unlike [LUkAKINGIRA, J.] the learned late judge we will not just leJve it at that. Exercising our powers under any other reli!t as prayed in the petition and cognizant of the fact tha~ a vacuum might give birth to chaos and political pandehonium we shall proceed to ! order that the respondent ' in the true spirit of the 12 original Article 21(1) and guided by the Fundamental Objectives and Principles of State Policy contained in Part II of the Constitution between now and the next general elections, put in place, a legislative mechanism that will regulate the activities of

private candidates. So as to let the will of the people prevail as to whether or not such candidates are suitable. " Mr. Rweyongeza replied that the High Court merely used its powers under Article 26 and directed that the articles be dealt with by Parliament. The learned advocate concluded by saying that "the High Court might have possibly erred but it certainly did not usurp parliamentary powers". We are a shade unsure as to what Mr. Rweyongeza meant that "the High Court might have possibly" erred.· LUGAKINGIRA, J. stated in his judgment "I declare and direct that it shall be lawful for independent candidates, along with candidates sponsored by political parties, to contest presidential, parliamentary and local council elections". Did he strike out the articles which require a prospecting candidate for election as a President, a Member of Parliament or a Local Government Councilor to belong to and be sponsored by a political party, that is, Articles 39, 47 and 67? If he did not do that his declaration and direction that i~1dependent candidates are lawful is an empty statement. Anyway, we are not sitting on appeal against the 13 I: judgment of LUGAKINGIRA, J. The f· G. miscalculated in denying this Court that opportunity in 1994. But even in this appeal when trAvelling through what their Lordships said, as quoted below, we are left spedulating: $0 in conclusion on the above tlo

issues, we wish to make 1 11 it very plain that in our view Act J4 of 1994 which amended 1 Article 21(1) so as to cross refef it to Articles 5, 39 and 67 which introduced into the cJnstitution, restrictions on I participation of public affairs and the running of the government to party members o½ly was an infringement on the fundamental right and ~hat the restriction was I unnecessary and unreasonable, · and so. did not meet the test of proportionality. We thus·proceed to declare that the said amendments to Arti't:les 21(1), 39(1J{c} and . I 67(1}(b} are unconstitutional." (Emphasis is ours.) I ' - I One thing which is crystal clear t<b us is that their Lordships "declared I . the said amendments" to be unconsti~utional. Did they strike down those amendments? We think not. They 4ategorically stated that "we shall proceed to order that the [A. G.] ... ~etween now and the next general elections, put in place, a legislativk mechanism that will regulate the activities of private candidates['. I I i 14 I I The A. G., the chief legal adviso~ of the Executive was to take the necessary steps to amend the laJi and the Constitution so that independent candidates could be perf itted. We are, therefore, of the settled view that the learned judges did not clothe themselves with legislative powers. This ground fails, tad. As already said earlier we are going to address grounds one and

two I separately despite the consolidation b~, Mr. Masaju. Ground one provided I as follows: : j That the High Court wrongly!, assumed jurisdiction in entertaining the Petition. Mr. Masaju submitted that sine: the dispute is on articles of the Constitution of the United Republic thei the High Court of Tanzania had no jurisdiction to construe it. With all dpe respect to the learned Deputy Attorney General, we do not think thbt he seriously contended that. He failed to tell us which court in the w~ole of the United Republic has the jurisdiction to construe the Constitution of the United Republic of Tanzania. We agree with Mr. Rweyongeza that where the jurisdiction of the High Court or any court, for that mal er, is ousted there has to be an express provision to that effect. The learned advocate referred us to Article I 7 (2) which states: I ,, I "The provisions of this Pard,I of this Chapter are not ij enforceable by any court. No court shall be competent to determine ~he question whether or 1511 I not any action or omission by any person or any court, or any law or judgment complies with the provisions of this Part of this Chapter. " (Emphasis is ours). Now, "this Chapter". mentioned: in that sub-article refers to Chapter One of the Constitution and "this Part" refers to Part II. Chapter I is titled "The United Republic, Political Parties, The People and The Policy of Socialism

and Self-Reliance" and Part II is titled "Fundamental Objectives and Directive Principles of State Policy". Now, those are statements of policy. What is of crucial importance for our purposes in this appeal is that if Parliament had intended that all the provisions of the Constitution were not justiciable, as contended by Mr. Masaju, then there would have been an express provision in line with Art. 7(2). Since there is no such provision then the High Court had jurisdiction to entertain the petition. Where there are such express. provIsIons ousting jurisdiction the courts observe them and restrain from adjudicating. This Court did just that in Seif Shariff Hamad v. Serikali ya Mapinduzi ya Zanzibar, Criminal Appeal No 171 of 1992, (unreported) because, though the Court is I for the whole Union, Article 99(2)(a) of the Constitution of Zanzibar, 1984, denies this Court jurisdiction of interpreting that Constitution in the following terms: Mahakama ya Rufaa haitakuwa na uwezo wa kusikiliza kesi zozote zinazohusiana na:- (a) Tafsiri ya Katiba hii; 16 We may as well reiterate what je had said in that judgment on 24th :1 . ' i: :, February, 1993, over 17 years ago no ; 1 Tunapendekeza kuwa marffaka zinazohusika katika pande zote mbili za Muunga/20 zichukue hatua zipasazo kusawazisha vifungu hivi nalvingine vyenye utata ama uwezekano wa kuleta utata b •ina ya hizi Katiba mbili. I That

can be translated as follows: i i We recommend to the relevant authorities on both sides of the Union, to take necessary !teps to harmonize these ! conflicting articles and other articles of the two constitutions I which are potentially irreconcilable. ! I This is the second time we recite that passage in Seif Shariff . . I Hamad. The first time was in S. M. !Z. v. Machano. Khamis Ali & 18 Others, Criminal Application No. 8 of 2000 (CAT unreported), where we said: 1 ' . ''In that appeal we reserved ~onstitutional matters for political solutions and we disposed the appeal on a procedural ground But it is timel to look at such provisions and take remedial steps. The cohrt will not throw in the I towel but will keep on draw1ng the attentir;,n of the Powers that be. That is our ro(e·" i:1' We should not be taken to b~ prophets of doom but it is an undisputed fact that this Court of Ap~eal contains part of the cream of 17 legal minds in this United Republic and,1 therefore, their opinion should be accorded the weight it deserves. Unfqrtunately, the Attorney General's Chambers is oblivious to that naked fac~ or does not read such important decisions even in cases where_ that Cha~bers is actively involved. To return to the first ground of lppeal, apart from the absence of such prohibition the High Court had ju{rsdiction to adjudicate the petition I . because of the constitutional set

up of the United Republic of Tanzania which, according to Art. 2(1), consists Jf Mainland Tanzania (or what was I! formerly Tanganyika Territory) and lanzania Zanzibar ( or what was formerly Zanzibar Protectorate). In political ! parlance Tanzania Zanzibar is II simply referred to in Kiswahili as Tanzanja Visiwani (Tanzania Islands). The constitutional set up is that, lhereas there is a Constitution and organs of Tanzania Zanzibar, there is nbI such Constitution and organs for I Mainland Tanzania. The Constitution of the United Republic of Tanzania and its organs, which are referred to as of the United Republic, are for both the Union and for Mainland TJnzania. Thus the High Court of Tanzania is both for the Mainland Tanz~nia and for the Union on matters pertaining to the Constitution, such as t~e one that is th~ subject matter-of this appeal. So, the High Court had jurisdiJion to entertain the petition· and ground one is dismissed in its entirety. 1: Ground 2 was formulated in the following way: 1s I' That the High Court erred in law in nullifying the provisions of the Constitution. May be we start by saying that itl• is doubtful whether their Lordships nullified the provisions of the Constitul ion. As we ha\/e already said they certainly declared them unconstitutrnal. Their Lordships, after the declaration, did not take the next steR to nullify or strike out the

articles ! they found to be objectionable. So, the issue then is whether the High Court of Tanzania or this Court has jurisdiction to declare a provision or provisions of an article or articles of the Constitution to be unconstitutionl1. Here is where we summoned the assistance of three friends of the Cou~: Mr. Othman M~soud, the Director ! . of Public Prosecutions, Zanzibar; Profi Palamagamba Kabudi; and Prof. • 1 Jwan Mwaikusa. I Mr. Masaju started by pointing oJ that courts are entrusted with the protection of the constitution and thaJ their chambers get worried when I the court strikes out an article of the Opnstitution. He specifically criticized their Lordships when they said: 1 ! "Our Constitution consists of 10 · chapters, and some I chapters have several parts. Chapter One nas three parts. Part Three of cl!apter One has 32 Articles. So Article 30(3) of the Constituti n is only applicable to the 1 . I enforcement of Part III . ~f Chapter One of the 11 1; 19 • 1: I Constitution. So this court , )nay I indeed declare some . :i provisions of the Constitution, Iunconstitutional~ " I May be we pause here for a whllile and digest this bit. Article 30 is - I about "Limitations upon, and enforcement and preservation of basic rights, I freedoms and duties", now sub-Article (IB) provides: ,_ '~ny person claiming that an~ provision in this Part of this Chapter or in any law

cJ(1cerning his right or duty owed to him has been, is being or is likely to be violated I . by any person anywhere in rhe United Rep&blic, may institute proceedings for redn:>ts in the High Court " With all due respect, we fail to s~ how the provisions of Article 30(3) led their Lordships to conclude that "tiis court may inpeec! declare some provisions of the Constitution, unconstiTional". On the contrary Mr. Rweyongela's view is that a constitutional I amendment Act is not exempted froni review by the, courts under Art. · 30(3). He referred us to Art. 368 (1) of the Indian Constitution, which is in pari materia with our Art. 98 (1). He poi~nted out that it has been held that the Indian Parliament cannot use Art 368(1) to amend the basic structure Ir of the Constitution. He concluded that t~eir Lordships were right to declare · . II : . . the amendments by Act No. 34 of 199~ to have been unconst1tut1onal as !i they meddled with the basic structilire of the Constitution, that is, I I franchise. 20 We admit ~o factual ~osi~ions: ~ne, Art_ 98(1)' provi_des for the procedure of altering the Const1tut1on an1 does so m the '.ollowmg terms: ''Parliament may enact law for !altering any provision of this Constitution in accorda~ce with the following principles:" ' (Emphasis is oursi) Those principles are not relevant for this Jijudgment. I: This Court said in Daudi Pete c)~pra) that

the ~iswahili version of the Constitution is the authentic one. Thie Kiswahili version of Art 98(1) (a) and (b) provide: "kubadilisha masharti ybyote ya Katiba ~iilf. So, the Parliament can alter "any provision" of the Constitution. We wish to emphasize "any provision" of trae Constitution. Altering has been I defined by Art 98(2) to include: ·:.. modification or correctio . of those provisions or repeal and replacement of tdose provisions or the re- enactment or modification or the application of the provisions." We have no doubt in our minds that what the Eleventh Amendment did was altering Art 21 as explained abole. i The second matter is that Art· 30.(5) provides for 1the review of any Act of Parliament in these words: 21 "Where in any proceedings it t alleged that any law enacted or any action taken by Ithe Government or any other authority abrogates or abridges any of the basic I rights, freedoms and duties set ort in Articles 12 to 29 of this Constitution, and the High Court is satisfied that the law I: or action concerned, to the extenf that it conflicts with this Constitution, is void or is inconsist'"ent with this Constitution, I - then the High Court, if it deems fit, or if the circumstances or public interest so requires, instiad of declaring that such law or action is void, shall have; the power to decide to I afford the Government or othel authority concerned

an opportunity to rectify the defect found in the law or action concerned within such a period ~nd such manner as the High Court shall determine, and sfch law or action shall be deemed to be valid until such time the defect is rectified or the period determined by the HiJh Court lapses, whichever is the earlier. " I I I The question which arises is wheJher a law affecting a constitutional amendment according to Art 98(1) is like any other law passed by Parliament. I - Mr. Masaju contended that a constitutional amendment law is not like any other law and that it is above ordin bry law. That view was opposed by 1,, Mr. Rweyongeza who was supported bYi Prof Mwaikusa. However, both the 22 : I DPP of Zan~ib~r and Prof Kabudi ar~ o~/ th_e same opinion as Mr. Masaju that a const1tut1onal amendment law Is n0t like any·other law. I. I The case of Kesavananda Bharrti v. State of Kerala, A. I. R. 1973 SC 1461 ha_s been heavily relied iupon in the High Court. We are . ' grateful to Prof Kabudi who pointed . outI that Justice KHANNA at p. 1903 stated: I "The word 'law' in Art 1¥(2) does not include II amendment of the Constitution. It has reference to ordinary pieces of legislation. " I i· We are of the decided opinion thaf that is so. We say so because an ordinary legislation can be enact~d by a simple majority of I parliamentarians. That is not so with a constitutional amendment law whose

enactment requires a specific number of votes. Art 98(1)(a) is loud I . . and clear that: I; ''.A Bill for an Act to alter any prorisions of this Constitution ( other than those relating to paragraphs (b) of this I subarticle) or any provisions of any law specified in List One : of the Second Schedule to this Constitution shall be I supported by the votes of not lesJ than two thirds of all the Members of Parliament. " i, That paragraph speaks for itself but we have to point out that it is two-thirds of all the Members of Parlia~ent and not just those sitting and voting. An ordinary law is not subjected Ito that stringent requirement. 23 The second question that follows Iis whether such a constitutional amendment can be reviewed by a court like any other la~. ., 1: I Mr. Othman Masoud and Prof Kabudi wJre again at one with Mr. Masaju, thats. 27 of the Interpretation of Laws +t, Cap 1 [RE 2~02] provides that an amending Act is to be construed as 0ne with the amended Act and so I Act No 34 of 1994 should be construed asr one with the Constitution. I According to them the - cardihal principle of Constitutional I - - interpretation is to read the entire Constitution as an entity. This Court said . I so in Julius I.F. Ndyanabo v. A. G., qivil Appeal No. 64 of 2001. There is, therefore, a need to harmonize the iarious articles of the constitution. This means that an article of a

constitution cannot be struck out or. I declared unconstitutional. i We agree with LUGAKINGIRA, J., ls he then was, when he stated in Rev. Christopher Mtikila v. Attorne~ General [1995] TLR 31 at p. 66, that: I "What happens when a prov(sion of the corstitution enacting I: fundamental right appears to be in conflict with another . . i provision in the Constitution?· In that case the principle of harmonization has to be cJlled in aid The principle I holds that the entire ConstittJJtion has to be read as Ii I 24 j .Jf j! integrated whole, no one particJlar provision destroying · I _ I the other but each sustaining the other... " The learned judge went further: ''If the balancing act should succecJd, the Court is enjoined to give effect to all the contentin! provisions. Otherwise, 11 I the court is .enjoined to incline t~ the realisation of the fundamental rights and may for tha~ purpose disregard even the clear words of a provision if thJ application will fesult in gross injustice. " I However, we do not subscribe to lhis last sentence. The court can never ever disregard the clear words o a provision of· the Constitution. i That will cause anarchy. As Prof. Kabudi submitted there are I two exception~ to the general principle. The first exception is where there is a specific constitutional provision prohibiting the amendment of lcertain articles ~f the co~stitution or what are called entrenched provision~ which are subject to immutable principles. - ~ · , We were given a number of examples of such provisions: Article 89

II I of the Constitution of France of 1958, !Article 139 of the Constitution of Italy of 1947, Article 288 . of the Constitution I of Portdgal . of 1975, and Article 4 of the Constitution of Turkey of 1982. On the African soil there are 1 25 I .I I ·I 1: Articles 174 to 178 of the Constitutioi of Algeria, Article 124 of the Constitution of Chad of 31st March 20d6, and also the1 Constitutions of Malawi, Namibia and South Africa. I May be we use the case of Turkey to .rive home the point of what are I 1 entrenched provisions: Article 4 of the Co1rstitution stipula~es that: "... the provisions of article 1 of the Constitution, establishing the form of the st1te as a Republic, the i ; provisions of article 2 on the characteristics of the Republic, and the provisions of article 3 sh111 not be amended, nor shall their amendment be proposed. " I .· Then Article 2 provides as follows: "The Republic of Turkey is a dem0cratic, secular and social state governed by the rule of t4w; bearing in ¢ind the concepts of public peace, natio~al solidarity anc( Justice; respecting human rights; loyal to the nationalism of Atatiirk, I I and based on the fundamental · tenets set forth in the I Preamble. " I., Article 3 reads as follows: I I "The Turkish state, with its teI'iritory and nation, is an ' [i : indivisible entity. Its language is yurkish. Its flag, the form 1 of ~hich is prescribed by the re/etant law, is composed_of a white crescent and star on a red background. Its national anthem is the 'Tndependence Mar~h''. Its capital is;Ankara." 26 1 ,j_ - -· ···- ···- -·· ·- ..

I

I I I Another illustration is Article 178 of e Constitution 'of Algeria which expressly prohibits constitutional amendments on: (1) the republican nature of the State;, : (2) the democratic order based on multi-party system; (3) Islam as the religion of the State;· I (4) Arabic as the national and official lan4uage; (5) fundamental liberties, and citizens' riJhts; (6) integrity of the national territory. !I I Article 131 of the Constitution of Nami+ has an interesting proviso. The marginal note reads: "Entrenchment of Fundame ntal1 Rights and I• Freedoms". I Ii I I "No repeal or amendment of 1ny of the protdsions of Chapter 3, in so tar as such'. repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that Chapter,i shall be permissible under this. Constitutio I' and no such purported repeal or amendment shall be vc1lid or have any force or I I effect."

I I I In such Constitutions if the Constituent Assembly or Parliament 1 purports to amend such entrenched prbvisions the courts have power to declare the amendments to be uncon~titutional and strike them out. 27 . I . j. The second exception to the general rule is those jurisdictions where the courts claim toJ1ave implied powers to protect "basic structures". The argument is that the power of Parliament to amend the constitution is limited. Their lordships in their judgment which is the subject matter of this appeal said: "The Respondent contends that the amendments were constitutional because they were duly enacted by Parliament who have such ,powers under Article 98 {l} of Constitution. We think that is not the issue here. We accept the proposition that although the Parliament has powers to enact legislation such powers are not limitless. As Professor Issa Shivji in his article "Constitutional Limits of Parliamentary Powers" published in the special edition of THE TANZANIA LA WYER October, 2003 put it on p. 93: "... the power to amend the Constitution is also limited. While it is true that parliament acting in Constituent capacity can amend any provision of the Constitution it cannot do in a manner that would alter the basic structure or essential features of the Constitution. " Prof. Shivji cited his authority for that proposition as the decision of the Supreme Court of

India in Kesavananda v. State of Kerala (supra) which, as already said, featured predomi~antly in the High Court. Prof. Kabudi gave the historical· background of the decisio~ in Kesavananda. He said that it was a result of a struggle between the · 28 Executive and Judiciary which started over the government's bid to effect land reforms soon after independence. Prof. Kabudi went on to cite pronouncements of Prime Minister Jawaharlal Nehru in parliament as evidence of the struggle. We do not think that it is necessary to delve into that for the purposes of this judgment except to say that at no time in the history of this country have we had sour relationship between the Executive and the 'Judiciary. That is extremely healthy and we wish to maintain it unless it is absolutely necessary to depart from it. Prof. Kabudi went further to point out that the Indian Supreme Court was inspired by the lectures of a German scholar, Prof. Dietrich Conrad, titled "Implied Limitations of the Amending Power" delivered in 1965 at the Faculty of Law of the Banaras Hindu University. That is testified to by Prof. Mahendra.P. Singh, Professor of Law at the University of Delhi in an obituary article, "Bridging Legal Traditions: Professor Dietrich Conrad, 1932-2001", published in the Frontline, Vol. 18 - Issue 18, Sep, 01-14, 2001, and also A.G. Noorani in his article "Behind the 'basic

structure' doctrine: On India's debt to a German jurist, Professor Dietrich Conrad". We agree with Prof Kabudi that the doctrine is nebulous as there is no agreed yardstick of what constitutes basic structures of a constitution. In this regard Prof. Shivji himself proposed some instances in his article stated that the Parliament cannot: n••. amend the 1977 Union Constitution in any of its provisions, it cannot amend it to change the nature of the two government union or establish life presidency or abolish 29 I I the judiciary or turn the Parliamentary_ Standing Committee on Powers,· Privilege; and Irrimu~1ties ·into a court of law. Such constitutional amendmenti would be beyond the I powers of the Parliament even ih its constituent capacity ~ !· and therefore liable to be struck :down because they alter the basic structure of the Constitution. " . I I iI We shall make our observations on this portion at a later stage. We I may also point out that even Prof. Conrad himself conceded that there is no litmus test as to what constitutes basic structure. He wrote: in one of I, I his essays carrying the title "Basic ·structure of the Constitution and • Constitutional Principles": .! I 11 Finally, a note of caution might not be out of place. The I jurisprudence of principles has ~ts own distinct dangers arising out of the flexibility and lack of precision of principles I as well as

their closeness to rhetbrical flourish. This might i invite .a loosening of judicial discipline in interpreting the explicit provisions of the Constifution. ... Tightening of I judicial scrutiny would be necessary in order to diminish the I ' dangers of opportunistic use of 'Such principles as ·mere I political catchwords." i: Let us now examine our Constitution of 1977. We have already seen that Art 98(1) provides for the alteration of any provision -of the Constitution, that is, there is no article which cannot be amended. In short there are no basic structures. What are provided for are safeguards. Under 30 I .1 Art 98(1)(a) constitutional amendments require two-thirds vote of all Members of Parliament while_Art 98(1)(b) goes further that: '~ Bill for an Act to alter any provisions of the Constitution or any provisions of any law relating to any of the matters specified in List Two of the Second Schedule to this Constitution shall be passed only if it is supported by the votes of not less than two-thirds of all Members of Parliament from Mainland Tanzania and not less than two- thirds of all Members of Parliament from Tanzania Zanzibar. " List Two of the Second Schedule of the Constitution enumerates eight matters, to wit: 1. The existence of the United Republic 2. The existence of the Office of the President of the United Republic.

3. The Authority of the Government of the United Republic.

4. The existence of the Parliament of the United Republic.

5. The Authority of the Government of ?anzibar.

6. The High Court of Zanzibar.

7. The list of Union Matters.

8. The number of Members of Parliament from Zanzibar. These eight matters could have been basic structures in the sense that Parliament cannot amend them. However, they are amendable once the procedure for amendment is followed. So, there is nothing like basic structures in our Constitution. 31 All the examples given by Prof Shivji •is basic structures are not ~o. They are contained in List Two: The abolishinb of two governments is covered in the authority of the Union Govern~ent and that of the Zanzibar · I . i . Government. Then the abolishing of the Judiciary is covered in the I I I • existence of the High Court of Zanzibar ~nd the designation of the Court of Appeal as a Union Matter. All .these ~atters can be amended . under Art 98(1)(b). So, the examples given by Prof. Shivji are not basic structures of 't the Constitution of Tanzania, 1977. . ' It is our considered opinion that th~ I basic structures doctrine does not d . apply to Tanzania and we cannot.apply: fhose Indian authorities, w_hich are in any case persuasive, when considerirlg our Constitution. . · After coming to that conclusion there is still an issue glaring at us: What I does. the Tanzanian court do when tnere are articles whith cannot be. harmonized? LUGAKINGIRA, J. and later J. . A.~i one of our judicial luminaries, ,I confessed to have been in a dilemma. M~Y be we let him soliloquy: I: "The posit/on, as

I see_ it, is now this: By virtue of art 21(1) eve!JI citizen is entitled to partici~ate in the government of · the country, and by virtue of thk provisions of art 20(4) such citizen does not have to ·be:1 member of any political I . party; yet by virtue of art 39(c).an~ others to that effect, no,! citizen can run for office unles; :lhe is a member of and. 32 sponsored by a political party. This is intriguing. I am aware that the exercise of the right under art 21 (1) has to be 'in accordance with procedure provided by or under the law, ' I but I think that while participation through a political party is a procedure, the exercise of the right of participation through a political party only is not a procedure but an issue of substance. The message is: either you belong to a political party or you have no right to participate. There is additionally the dimension of free elections alluded to in art 21. A citizen may participate in the government 'either directly or through freely chosen representatives. ' It is contrary to every notion of free elections if non-party citizens are compelled to vote for party candidates. In the midst of this unusual dilemma I had to turn to the canons of statutory and constitutional interpretation. " As we already pointed out at the beginning of this judgment, the learned judge concluded without declaring the Eighth Amendment to be unconstitutional.

He said: "I declare and direct that it shall be lawful for independent candidates, along with candidates sponsored by political I parties, to contest presidential parliamentary and local council elections. " This Court has already made its stand abundantly clear in Attorney General v. W. K. Butambala, [1993] T. L. R. 46 at p. 51 when it said: I 33 We need hardly say that our Constitution is a serious and solemn document. We think that invoking it and knocking down laws or portions of them should be reserved for appropriate and really momentous occasions. In that appeal this Court was dealing with the Criminal Procedure Code. Here it is the Constitution itself. We have to be extra cautious. That stand in Butambala was taken as a step further in Mbushuu @ Dominic Mnyaroje And Another v. R, (1995] T. L. R. 97 at p 117: But the crucial question is whether or not the death penalty is reasonably necessary to protect the right to life. For this we say that it Js the society which decides. The learned judge in the above quoted passage acknowledges that presently the society deems the death penalty as reasonably necessary. In that appeal the trial judge convicted the appellants of murder, did not sentence them to hang but used the occasion to strike out the death sentence as being unconstitutional. The Republic appealed and this Court conceding that death penalty was inherently inhuman,

cruel and degrading punishment but observed that it was saved by Art 30(2). This Court was of the decided opinion that the issue of annulling death penalty was the responsibility of Parliament which is aware of public opinion. 34 • In the judgment which is the subject matter of this appeal, their lordships said: ''So as to let the will of the people prevail as to whether or not such [independent] candidates are suitable. " We are definite that the Courts are not the custodian of the will of the people. That is the property of elected M~mbers of Parliament. The High Court of Kenya has the same view as expressed in a very recent decision in Jesse Kamau & 25 Others v. A. G., [2010] eKLR where 24 clergy men of various religious institutions challenged the inclusion of Kadhis' Courts in the Draft Constitution. In their final orders three judges of the High Court ruled: •~s regards paragraph 2 of the prayers we find and hold that sections 66 and 82 are inconsistent with each other, and that section 66 is superfluous but it is not the courts role to expunge it. It is the role of Parliament and the citizenry in a referendum." So, if there are two or more articles or portions of articles which cannot be harmonized, then it is Parliament which will deal with the matter and not the Court unless that power is expressly given by the Constitution, which, we have categorically said, it has

not. However, situations can arise whe're the High Court and this Court can nullify a constitutional provision on the grou"nd that it is unconstitutional in the sense that it was not enacted as provided for by Art. 35 . ' I \, 98. An example is where a constitutional amendment is challenged on the grounds that it did not obtain the prerequisite number of votes according to Art. 98(1)(a). We already pointed out earlier that generally a constitutional amendment requires the support of a two-thirds majority and under Art 98(1)(b) the support of two-thirds majority of all the Members of Parliament from Zanzibar and all Members of Parliament from the Mainland. If such a challenge is sustained then the court might have to find that the article has not been enacted in accordance with the constitutional provisions and is, therefore, unconstitutional. In such a situation the courts will be performing its constitutional function of maintaining checks and balances. Otherwise, Tanzanian courts exercise calculated restraint to avoid meddling in constituencies of the other two pillars of the State. This has been amply demonstrated in numerous decisions. LUGAKINGIRA, J., himself in his ruling in Rev. Mtikila's case refused many prayers as being not justiciable. We agree with Prof Mwaikusa that it is a pity that that ruling has not been reported. We recommend to the Editorial Committee to

report it. Another example of such judicial restraint is Mwalimu Paul John Mhozya v. Attorney General (No. 1) [1996] TLR 130 (HC). The applicant sought an interlocutory injunction to restrain the President of the United Republic of Tanzania from discharging his functions pending a determination of the main case in which the applicant sought orders of declaration that: (a) the Constitution of the United Republic had been violated; (b) the President was guilty of having allowed or enabled the said 36 violation; and ( c) the continued exercise of presidential powers by President Ali Hassan Mwinyi was unconstitutional and a potential danger to the well being of the country and its citizens. It was held, inter alia,:: , I (iii) "The principle that I the functions of. one branch of government should not encroach on the functions of another branch is an important one to ensure that the governing of a state is executed smoothly and peacefully; I (iv) No provision of the Constitution or any other law authorises the High Court to hold that the President can be removed or1suspended from office by a body I other than that which the Constitution specifically provides for; (v) This Court has no jurisdiction to issue the order of injunction sought against the President." Ground one is, therefore, allowed: a court cannot declare an article of the Constitution to be unconstitution~I except

where the article has not ' been enacted in accordance with the procedure under Art 98(1)(a) and (b). After saying all that it is obvious that we cannot legally say that independent candidates are allowed. That is the province of Parliament to I I amend the Constitution according to Art 98(1). We may as well add that apart from the legal argument we have advanced there is a purely practical issue. Where will we stop? The 37 I argument is that the provisions. of Art 21 have been abridged since a candidate has to belong to and be sponsored by a political party. The next complaint will be why should a parliamentary candidate be required to be of the age of 21 years and a presidential candidate 40 years? Why not be the age of majority of 18 years? Also why should the presidential candidate be a citizen born in Tanzania? Why do we exclude those born outside the Republic simply because their parents were faithfully serving the Republic outside the country? Are all these not abridging Art 21? ,, I . Having said all thist and having made our conclusion obviously clear, we now turn to a litigation which is on all fours with this current ·appeal: the case before the Inter-American· Court of Human Rights, Jorge Castaneda Gutman v. Mexico. Briefily stated the facts in this case are as I follows: On 05/03/2004 Jorge applied to the General Council of Federal Electoral Institute to be

registered , as an independent presidential candidate claiming to exercise his rights under Art 35 (II) of the Mexican Constitution which reads as follows: "Article 35. The citizen shall have the following prerogatives: I ''IL To be able to be elected for any elected public office and appointed to any other employment or assignment, if he. complies ' with the requirements established by law;" (The emphasis is ours). The application was refused because an Electoral Law provides: 38 I 11 ••• only the national politica/ parties have the right to ! request the registration of candidates to elected office. " .(Emphasis is ours). ! . . I Jorge unsuccessfully exhausted local remedies so, on 1th October, 2005, he filed a petition with the Inter-American Commission on Human Rights which made certain recommendations to the Mexican Government and gave it two months to report on a~tions taken to implement them. As time lapsed and no progress was made, the Commission lodged before the Court an application against Mexico: 11 ••• to claim the constitutionality of political rights and the consequent impediment for Jorge Castaneda Gutman ... to register his independent candidacy for the presidency of Mexico [in tt:,e elections held in July I 2006}." After disposing four preliminary qbjections and a lengthy deliberation I covering 251 paragraphs and 61 pages, seven judges of the Court concluded

its judgment in the following terms in relevant parts: "DECLARES, unanimous!½ that: 3. The State did not violate, to the detriment of Jorge Castaneda Gutman, the political right to be elected . I recognized in Article 23(1)(b) of the American Convention on Human Rights, in relation to Articles 1(1) and 2 thereat in the terms of paragraphs 134 to 205 of this Judgment,, 391 \. ! • • I Art 23 of the American Convention on Human Rights prqvides: "Article 23. Right to participate in government 1. Every citizen shall enjoy the following rights· and .• •. I opportunities: a. to take part in the conduct: of public affairs/ directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections/ which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and c. to have access/ under general conditions of equalit½ to the public service of his country.

2. The law may regulate the exercise of the rights and opportunities referred to in, the preceding paragraph only on the basis of age/ nationalit½ residence/ language/ education civil and mental capacit½ or sentencing by a competent court in criminal proceedings." Art 23 goes much further than our Art 21, yet the Electoral Law, and NOT the Constitution, as is in our case, was held not to violate it. I In our case, we say that the issue of independent candidates has to be settled by Parliament which ha~ the jurisdiction to amend the i 40 I Constitution and not the Courts which, as we have found, do not have that · jurisdiction. The decision on whether or not to introduce independent candidates depends on the social needs of each State based on its historical reality. Thus the issue of independent candidates is political and not legal. However, we give a word of advice to both the Attorney General and our Parliament: The United Nations Human Rights Committee, in paragraph 21 of its General Comment No. 25, of July 12, 1996, said as follows on Article 25 of the International Covenant on Civil and Political Rights, very similarly worded as Art 23 of the American Convention and our Art 21: "The right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties." Tanzania is known for our good record on human rights and particularly our militancy for the right to self determination and hence our involvement in the liberation struggle. We should seriously ponder that comment from a Committee of the United Nations, that is, the whole world. Each party is to bear its own costs both in this Court and below. DATED at DAR ES SALAAM this lih day of June, 2010. 41 I 1 A. ' S. L. •RAr1f1q ADHANI I ,ji ;'

CHIEF JUSTICE ; I: ) '!; .· ' ':'J! E. N.MUNUO lUSTICE OF! APPEAL ~I J. H. M~tlFFE : :I JUSTiCE OF:, APPEAL i II N._·P.-KI~ARO JUSTICE ·0F1 APPEAL I I i ', I . M. S. MB~ROUK .. JUSTICE o~\APPEAL '. I r: ! .1· •:' B. M. LU.ANDA ii 1 JUSTICE OF APPEAL i 11 . . I S. MJAS!IRI

JUSTICE OF APPEAL . 11 I certify that this is a true ~PY of ;_ e originaL · 11 , . I, 1 _.- . ~ f\ 'J.S.~ DEPUTY REGrlSTRAR 1 ( · COURT OF APPEAL 42 . I :! '!',