IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM MAIN REGISTRY) AT DAR ES SALAAM
MISC. CIVIL CAUSE NO. 10 OF 2005
MANENTO J.K, MASSATI J, MIHAYO J.:
CHRISTOPHER MTIKILA PETITIONER
THE ATTORENY GENERAL RESPONDENT
JUDGMENT Date of Hearing - 6/2/2006
Date of Ruling - 5/5/2006 MASSATI, J:
The Petitioner, REV. CHRISTOPHER MTIKILA, is a very determined man. In 1993 he filed a petition in the High Court at Dodoma, to seek among other reliefs, a declaration that the citizens of this country have a right to contest for the posts of president, member of parliament and local government councillor without being forced to join any political party. The High Court decided in his favour on this aspect. The government filed an appeal against that finding, but later withdrew the appeal and sent a bill in parliament to legislate in anticipation against that decision of the court. As we shall shortly see below that law is the subject matter of the present proceedings. It could have been assumed that the petitioner had a motive for doing so in 1993, because by then he was still fighting to register his political party, the Democratic Party, as illustrated by his earlier petition. Having secured the registration of his party, the petitioner who describes himself as the chairman of the Democratic Party has come again to this Court for the following orders:
A declaration that the Constitutional amendment to Articles 39 and 67 of the Constitution of the United Republic of Tanzania as introduced by amendments contained in Act No. 34 of 1994 is unconstitutional.
A declaration that the petitioner has a constitutional right under Article 2 (1) of the Constitution of the United Republic of Tanzania to contest for the post of the president of the United Republic of Tanzania and/or the seat of a member of parliament of the United Republic of Tanzania as a private candidate.
Costs of this petition be borne by the Respondent.
Any other remedy and/or relief the honourable Court will deem equitable to grant.
The gravamen of the Petitioner's complaints are couched in paragraphs 7, 8 and 9 of his petition which is to say: first, that the said constitutional amendments are violative of the Basic Human Rights as proclaimed in Article 21 (1) of the Constitution, two, that the said constitutional amendments are violative of Article 9 (a) and (f) of the Constitution, three, that the said amendments are violative of Article 20 (4) of the Constitution, and fourthly, the said constitutional amendments are a violation of International Covenants on Human Rights to which the United Republic is a party. According to the petition the effect of all these amendments is that an ordinary Tanzanian is forced to join a political party in order to participate in government affairs in order to be elected to any of the posts of president or member of parliament. The Respondent Attorney General resists the petition. The kernel of his objection is contained in paragraph 4 of his Answer to the Amended petition. It is to this effect: " ...the enactment of Act No. 34 of 1994 which was coupled with Constitutional amendments of the said Article is valid, legally done in a general way, for a specific public good and not in violation of any basic human rights. Further to that the Respondent states that the said constitutional amendments were not discriminatory at all as the law is applicable to all people and all candidates who wish to contest in elections. " In short, the bone of contention between the parties in this petition is whether the amendment to the Constitution introduced by Act No. 34 of 1994 is constitutional. Although the Court did not formulate the issues to be tried the petitioner has framed and both parties have fully argued on the following issues:
(i)Whether the sections, namely Articles 39 (1) (c) and 39 (2) and Article 67 (b) and 67 (2) (e) are unconstitutional.
(ii)Whether the said sections meet the proportionality test?
(iii) Whether the said amendment introduced by Act No. 34 of 1994 contravene the International Instruments signed ratified and deposited by the Government of the United Republic of Tanzania? We believe that no injustice will be done if we decide the petition on the basis of those issues even if we did not frame them at the beginning of the hearing of this petition, which was effectively in the form of written submissions. Counsel were also accorded opportunity to elaborate on their written submissions orally. Mr. Rweyongeza and Mr. Mpoki learned Counsel appeared for the petitioner. Mr. Mwaimu and Ms Ndunguru appeared for the Respondent. It was the petitioner's submission that the amendments to Article 39 and 67 introduced by Act 34 of 1994 restricting the right to contest in elections for president and member of parliament to political party candidates only are violative of the Basic Rights contained in Article 21 (1) of the Constitution, which gives a citizen, the right of association, and also violativeArticle 20 (4) of the Constitution which prohibits the enactment of laws forcing people to join any society or corporation. Mr. Rweyongeza and Mr. Mpoki, submitted that the said provisions are a limitation for citizens who desire to contest for those political posts. They submit that such provision is discriminatory because it tends to discriminate citizens who are members of political parties against those who are not members in contesting for political posts. The learned Counsel quoted several principles laid down by Lugakingira J (as he then was) in REV. MTIKILA VS ATTORNEY GENERAL TLR. 31.
The learned Counsel further submitted that since REV. MTIKILA VS ATTORNEY GENERAL(Supra) upheld the fundamental rights contained in the Constitution, the legislation of Act 34 of 1994 was void, on the score of repugnancy. They cited from SYLVIA SNOWSIS' book JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION(Universal Law Publishing Co Pot Ltd, 2nd Reprint 1996, wherein the cases of LESSEE vs. DORRANCE and KAMPER vs. HEWKINSwere referred to.
Submitting on the second issue which is whether the said provisions meet the proportionality test, Mr. Rweyongeza and Mr. Mpoki, submitted, first, that it was incumbent upon the Respondents to prove that the challenged legislation is within the purview of the exception. For that principle the learned Counsel relied on two Indian cases namely SAPHIR AHMED VS STATE OF UTRAH PRADESH AIR SC 729 and DEANA VS UNION I SCRI.
Coming closer at home, the learned Counsel cited the Tanzania Court of Appeal decision in KUKUTIA OLE PUMBUN & ANOTHER VS ATTORNEY GENERAL AND ANOTHER  TLR. 159, where it was held that for legislation to pass the proportionality test, it must be shown that it is not arbitrary, and that the limitation is reasonably necessary to achieve a legitimate objective. They concluded on this issue that the impugned law does not meet the proportionality test.
Lastly, Mr. Rweyongeza and Mr. Mpoki, submitted that the Act violated the Universal Declaration of Human Rights and the African Charter on Human and Peoples' Rights. The said International Conventions must be taken into account in interpreting the Bills of Rights and Duties. For that statement, the learned Counsel relied on the Court of Appeal decision in DPP VS DAUDI PETE TLR. 22.
In concluding their submission on the third issue, the learned Counsel for the petitioner said that in all its activities, the Constitution enjoins, the Government to adhere to the directives, principles of state policy, and this includes, in their duty to make laws. The learned Counsel therefore penned off by praying that the petition be allowed with costs. Mr. Mwaimu, the learned Principal State Attorney and Ms. Ndunguru, learned State Attorney submitted on the first issue that the amendments to the Constitution were done within the powers of the legislature and that did not breach any provision of the constitution. For this, the learned state Counsel sought to rely on Article 98 (1) & 2 of the Constitution. They stated further that this position was also supported by Lugakingira J (as he then was) in REV. MTIKILA VS. ATTORNEY GENERAL(Supra).
On the issue whether the amendments violated Article 21 (1) of the Constitution, the learned Counsel submitted that the amendments were done for a specific public good. They state in their submission: "The prohibition to individual contestants in general and local government elections is one way to achieve representative democracy. The constitution primarily aims at establishing and safeguarding a representative democracy which is the policy our country follows, it is a policy, which intends to safeguard peace, order security and tranquility. "
And further down, the learned State Attorneys submit:
"The principle requiring an individual who is vying for leadership to contest through a political party is intended to ensure that whoever is made a candidate is well known to the people he wants to lead". These, the learned Counsel informed the Court, are the reasons why the Parliament decided to prohibit private candidacy. It was submitted for the Respondent that the question whether the restriction is reasonable must be decided on a case to case basis, citing decisions by the constitutional Court of South Africa (SOUTH AFRICA VS MAKWANYANE (3) S.A. 391 and another of S VS BHULWANA (1) S.A. 388 (cc). They submitted that those views are persuasive to our Courts. On the basis of those decisions Mr. Mwaimu, and Ms. Ndunguru submitted that the amendment was not only good for representative democracy but also for balancing the interests of the public at large. Responding to the question of discrimination, the learned state attorneys submitted that the amendment was meant for all those who aspire for leadership for the principle of equality does not require every one to be treated the same, but simply that people in the same position should be treated the same. Citing another South Africa case of PRESIDENT OF REPUBLIC OF SOUTH AFRICA VS HUGO  4 SA 1 CC cited in a book BILL OF RIGHTSsometimes it is possible to justify discrimination as an exception if the purpose is to meet the ends of affirmative action. This is called the principle of "fair discrimination ". The learned state attorneys submitted further that Articles 21 (1), 39 (1) (2), 67 (1) (b) 2, and Article 20 (4) if read together, it will be noted that Article 21 (1) does not create any procedure. They submitted that the procedure for enfranchisement are found in the Elections Act and its Regulations. Therefore, it was not correct that there is no procedure for enfranchisement. They went on to submit that the fear that the provision could lead to abuse and confine the right to govern to a few and to render illusory the emergence of a truly democratic society, was unfounded and could not justify the declaration that the provision was unconstitutional. They submitted that on the contrary private candidates are uncertain, and unreliable and could easily abuse powers as they would not originate from the people.
The learned Counsel then went on to distinguish the cases cited by the petitioner on the question of the proportionality test as all the cases cited dealt with the provisions in the statutes, whereas the present case deals with the Constitution itself which is a result of the will of the people.
On the last issue, the learned state attorneys submitted that while it is not disputed that Tanzania was a signatory to the Universal Declaration of Human Rights and ratified the African Charter for Human and Peoples Rights, these instruments have their limitations. They cited the example of Article 29 (2) of the Universal Declaration of Human Rights, which provides to the effect that the exercise of those rights shall be subject to such limitations as may be imposed by law for the purpose of securing and recognition of the rights and freedoms of others. On that premise, the learned Counsel submitted that since the Constitution advocates representative democracy, the amendments were necessary in order to maintain the requirements of morality, public order and general welfare of the people. And so the amendments were within the letter and spirit of the international instruments for Human Rights. At the end of the day the learned state attorneys prayed that the petition be dismissed with costs. In their rejoinder, Mr. Rweyongeza and Mr. Mpoki, learned Counsel have submitted that although the Parliament is given wide powers to amend constitutional provisions those powers are subject to the limits imposed by Article 30 (2) and 31 of the Constitution. For that proposition they relied on the reasoning of Lugakingira J (as he then was) in REV. MTIKILA VS ATTORNEY GENERAL (Supra). Relying on the cases of PETER NG'OMANGO VS KIWANGA AND ANOTHER[1993) TLR. 77, DPP VS DAUDI PETE TLR 22, and MBUSHUU VS REPUBLIC TLR impugned do not meet the proportionality test. They submitted that private candidacy was not inconsistent with representative democracy. Therefore private candidacy would not erode the principle of representative democracy. They submitted further that there were no adequate safeguards and control against abuse by those in authority in the exclusive political party system, and so it does not fall within one limb of the proportionally test. Referring to the South African case of MAKWANYANE(Supra), cited by the Respondent's Counsel, Mr. Rweyongeza and Mr. Mpoki, submitted that persuasive as that decision, is, it is also authority for the need to widen the horizon of the principle of proportionality test, so that, it was desirable that the effect of a provision should not negate the content of the right in question, and that, the learned Counsel went on, was the essence of the decision in REV. MTIKILA VS. ATTORNEY GENERAL(Supra), in that the decision was made in order, not to negate the essential content of the right of an independent candidate. So, if anything, the South African case is a persuasive authority for widening the scope of the proportionality test. On the question whether or not there was any procedure set by statute, the learned Counsel reminded the Court that the issue was settled by Lugakingira J (as he then was) in MTIKILA VS ATTORNEY GENERAL(Supra) in that by using the harmonization principle where the balancing act does not succeed courts should incline towards the realization of the fundamental rights even at the cost of disregarding the clear words of a provision if their application would result in gross injustice.
On the authority and influence of international covenants, the learned Counsel for the petitioner reiterated their conviction on the weight to be attached to such instruments as illustrated in the DAUDI PETEcase (Supra). The learned Counsel concluded their submission by praying that the petition be allowed. It is now our turn to examine and analyse the rival arguments of the legal Counsel. But before we embark on this we think it is opportune for us to recapitulate the principles which will guide us in this task. These are those that govern the interpretation of the constitution and resolution of constitutional disputes. These principles have mostly been developed by case law, and they are numerous, but in the present case we intend to adopt only those which we consider to be relevant in the circumstances of the case.
In Civil Appeal No. 64 of 2001 JULIUS ISHENGOMA FRANCIS NDYANABO VS THE ATTORNEY GENERAL(Unreported) the Court of Appeal of Tanzania (Samatta C.J.) at pp. 17-18 laid down five principles.
The Constitution of the United Republic is a living instrument, having a soul and consciousness of its own. Courts must therefore endeavor to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purpose for which its makers framed it.
The provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions, but grows and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must therefore be strictly construed. So Courts have a duty to interpret the Constitution so as to further fundamental Objectives and Directives of State policy.
Until the contrary is proved legislation is presumed to be constitutional. If possible legislation should receive such a construction as will make it operative and not in operative.
Since there is a presumption of constitutionality of legislation save where there is a clawback or exclusion clause relied upon as a basis for constitutionality the onus is upon those who challenge the constitutionality of the legislation, they have to rebut that presumption.
Where those supporting a restriction on a fundamental right rely on a clawback or exclusion clause in doing so, the onus is on them to justify the restriction.
Although not expressly included in the fifth principle it was the Court's view also, adopting its own decision in KUKUTIA OLE PUMBUN AND ANOTHER VS ATTORNEY GENERAL AND ANOTHER TLR. 159; as a rejoinder to that principle that:
"Whoever relies on a clawback or exclusion clause has to prove that the restrictions are not arbitrary, unreasonable and disproportionate to any claim of state interest. "
The other principles of constitutional interpretation include: -
Courts are not concerned with the legislative wisdom of Parliament. They are concerned only with its legislative competence.
While parliament cannot directly override a decision of a Court of law declaring a statute unconstitutional and pronounce it to have been valid, it can make a fresh law, free from unconstitutionality.
Courts do accept that civilization owes quite as much to those who limit freedom as to those who expand it.
A Constitution must not be construed in isolation, but in its context which includes the history and background to the adoption of the Constitution itself. It must also be construed in a way which secures for individuals the full measure of its provisions. "
Beginning with the immediately forgoing principle of constitutional interpretation let us briefly attempt to give a historical glimpse to the provisions relating to representative democracy in the genesis of the history of post independent Tanzania. The constitutional history of Tanzania begins with the Tanganyika (Constitution) Order In Council, 1961 published as Government Notice No. 415 of 1/12/61. The Second Schedule thereof was THE CONSTITUTION OF TANGANYIKA. Section 20 of that Constitution declared universal adult suffrage to every citizen of Tanganyika who had attained the age of 21 years, unless disqualified by an Act of Parliament. Sections 18 and 19 of the Constitution governed the qualifications and disqualifications for elections at the National Assembly. Section 18 provided: "18 Subject to the provisions of Section 19 of this Constitution, any person who:
is a citizen of Tanganyika.
has attained the age of twenty one years, and
is able to speak, and unless incapacitated by blindness or other physical cause to read the English language with a degree of proficiency sufficient to enable him to take an active part in the proceedings of the National Assembly.
"shall be qualified for election as a member of the National Assembly, and no other person shall be so qualified". The next Constitution was C.A. Act No. 1 of 1962. (The Republican Constitution of Tanganyika) Section 24 of the Republican Constitution retained the same qualification for being elected to the National Assembly. But Section 4 (3) also listed down the qualifications for election of President. It reads"
"4 (3) Any citizen of Tanganyika who:
is qualified to be registered as a voter for the purposes of elections to the National Assembly,
in the case of elections held on a dissolution of Parliament, is nominated by not less than one thousand persons registered as voters for the purposes of elections to the National Assembly shall be qualified for elections as President.
It may be noted in passing here that in these constitutions there was no political party membership qualifications, although there were several active political parties.
Next, was the Interim Constitution which followed the union of Tanganyika and Zanzibar. Notably, Article 3(1) declared Tanzania as a one political party state
"3 (3) All political activity in Tanzania other than that of the organs of State of the United Republic shall be conducted by or under the auspices of the party. " Article 4 (4) forbade: