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Tanzania decisions
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The High Court dismissed applications for injunctions and related interim orders in a dispute over constitutional amendments, asset disposal, and NGO governance.
The Court of Appeal held that Tanzanian courts do not have jurisdiction to declare constitutional amendments unconstitutional on substantive grounds, except where the amendment was not enacted in accordance with the prescribed constitutional procedure. The requirement for political party membership for candidates does not violate the Constitution as amended, and the issue of independent candidates is a political question for Parliament, not the courts.
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The High Court has jurisdiction to entertain petitions challenging constitutional amendments, but cannot declare constitutional provisions unconstitutional unless the amendment procedure under Article 98 was not followed. The doctrine of basic structure does not apply in Tanzania, as all constitutional provisions are amendable if the prescribed procedure is followed. The requirement for political party membership for candidates is a matter for Parliament, not the courts, to decide. International instruments may inform interpretation but cannot override clear constitutional provisions.
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The amendments to Articles 21(1), 39(1)(c), and 67(1)(b) of the Constitution, introduced by Act No. 34 of 1994, unreasonably and unnecessarily restrict the fundamental right of Tanzanian citizens to participate in government by requiring political party membership for presidential and parliamentary candidacy. These restrictions violate Articles 20(4) and 21(1) of the Constitution, fail the proportionality test, and are not justified by public interest or international law. The amendments are therefore unconstitutional and void.
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The amendments to Articles 21(1), 39(1)(c), and 67(1)(b) of the Constitution, introduced by Act No. 34 of 1994, which restrict candidacy for president and member of parliament to members of political parties only, are unconstitutional as they violate the fundamental rights to freedom of association and participation in government under Articles 20(4) and 21(1). The state failed to justify the necessity and proportionality of these restrictions, and the amendments also contravene international human rights instruments to which Tanzania is a party.
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Claims that are political in nature or seek to compel legislative or executive action beyond the court's legal mandate are not justiciable and must be struck out; only claims raising legal issues within the court's jurisdiction will proceed.
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The amendments to Articles 39 and 67 of the Constitution, introduced by Act No. 34 of 1994, restricting candidacy for president and parliament to political party members, are constitutional. The amendments were enacted within legislative competence, serve the legitimate aim of representative democracy, and do not violate fundamental rights or international instruments. The proportionality test is met, and the restriction is not arbitrary or discriminatory.
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