Kamakabuzi
JF-Expert Member
- Dec 3, 2007
- 2,859
- 1,301
Ground 1:That the High Court erred in law in proceeding with the
determination of the petition without framing issues.
We, therefore, dismiss this ground of appeal
Ground 2:That the High Court erred in law and in fact by subjecting
the Constitution to International Instruments.
So, we are at one with Mr. Rweyongeza in his reply that reference to
International Human Rights Instruments has been ordained by this Court.
We, therefore, cannot fault their lordships in any way and this ground of
appeal is dismissed, too.
Ground 3: That the High Court erred in law by assuming legislative
powers.
So in conclusion on the above two issues, we wish to make it
very plain that in our view Act 34 of 1994 which amended
Article 21(1) so as to cross refer it to Articles 5, 39 and 67
which introduced into the Constitution, restrictions on
participation of public affairs and the running of the
government to party members only was an infringement on
the fundamental right and that the restriction was
unnecessary and unreasonable, and so did not meet the
test of proportionality. We thus proceed to declare that
the said amendments to Articles 21(1), 39(1)(c) and
67(1)(b) are unconstitutional. (Emphasis is ours.)
This ground fails, too.
Ground 4: That the High Court wrongly assumed jurisdiction in
entertaining the Petition.
So, the High Court had jurisdiction to entertain the petition and ground one (4) is dismissed in its entirety.
Ground 5: That the High Court erred in law in nullifying the provisions
of the Constitution.
Ground one (5) is, therefore, allowed: a court cannot declare an article of the Constitution to be unconstitutional except where the article has not been enacted in accordance with the procedure under Art 98(1)(a) and (b).
In our case, we say that the issue of independent candidates has to be settled by Parliament which has the jurisdiction to amend the Constitution and not the Courts which, as we have found, do not have that jurisdiction.
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.
Wapendwa, hayo ndiyo maamuzi ya mahakama tena ya rufaa chini ya jaji kiongozi mwenyewe!
Kimsingi wamekubaliana na maamuzi yote ya mahakama kuu kama unavyoweza kuona grounds 1 – 4.
Wanakubali kuwa kuna conflict katika vifungu vya katiba, kwamba marekebisho ya katiba yaliyomwondoa mgombea huru yalikiuka haki za binadamu zilizo ndani ya katiba yenyewe na zilizo ndani ya hati za kimataifa ambazo Tanzania imezikubali na kutia sahihi nk;
Walichoogopa kufanya ni kusema kuwa marekebisho hayo yalikiuka katiba – yaani eti kwa kuwa marekebisho yalipitishwa kwa taratibu zilizowekwa kikatiba, japo yameleta mgongano katika vifungu vya katiba hiyohiyo, basi ni sawa, na mahakama haiwezi kutengua! Hiki ndicho kichekesho kabisa. Majaji 7 akiwemo jaji kiongozi mnajifunga kitanzi wenyewe? Kwa hiyo bunge likifuata utaratibu likafuta hata kuwepo kwa ofisi ya rais wa Jamhuri ya Muungano wa TZ, basi hata mahakama haziwezi kuhoji? Hakika huu ni upuuzi!
Upuuzi mwingine huu hapa: Eti wakiruhusu mgombe huru hawajui itaishia wapi – litakuja suala la umri, kuzaliwa nk:
Where will we stop? The 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?
Yaani majaji hawaoni pia kuwa kulazimisha rais awe wa miaka 40 linaweza kuwa ni tatizo?, hawaoni sababu kwanini katiba inawakataza waliozaliwa nje ya TZ – jibu ni rahisi tu – hawa wanakuwa na uraia wa kule walikozaliwa nasi hatujaruhusu uraia wa nchi mbili
Tunaweza kusema mengi, lakini la msingi ni kuwa mahakama imejitia kitanzi. Kwa maana akiingia dikteta akainfluence au akalazimisha kuwa na bunge lake na bunge hilo likapitisha vifungu kwa kutumia theluthi mbili, basi mahakama itakaa kimya tu – maana pia hakuna ambapo mahakama inzweza kuhoji uhuru wa uchaguzi!
determination of the petition without framing issues.
We, therefore, dismiss this ground of appeal
Ground 2:That the High Court erred in law and in fact by subjecting
the Constitution to International Instruments.
So, we are at one with Mr. Rweyongeza in his reply that reference to
International Human Rights Instruments has been ordained by this Court.
We, therefore, cannot fault their lordships in any way and this ground of
appeal is dismissed, too.
Ground 3: That the High Court erred in law by assuming legislative
powers.
So in conclusion on the above two issues, we wish to make it
very plain that in our view Act 34 of 1994 which amended
Article 21(1) so as to cross refer it to Articles 5, 39 and 67
which introduced into the Constitution, restrictions on
participation of public affairs and the running of the
government to party members only was an infringement on
the fundamental right and that the restriction was
unnecessary and unreasonable, and so did not meet the
test of proportionality. We thus proceed to declare that
the said amendments to Articles 21(1), 39(1)(c) and
67(1)(b) are unconstitutional. (Emphasis is ours.)
This ground fails, too.
Ground 4: That the High Court wrongly assumed jurisdiction in
entertaining the Petition.
So, the High Court had jurisdiction to entertain the petition and ground one (4) is dismissed in its entirety.
Ground 5: That the High Court erred in law in nullifying the provisions
of the Constitution.
Ground one (5) is, therefore, allowed: a court cannot declare an article of the Constitution to be unconstitutional except where the article has not been enacted in accordance with the procedure under Art 98(1)(a) and (b).
In our case, we say that the issue of independent candidates has to be settled by Parliament which has the jurisdiction to amend the Constitution and not the Courts which, as we have found, do not have that jurisdiction.
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.
Wapendwa, hayo ndiyo maamuzi ya mahakama tena ya rufaa chini ya jaji kiongozi mwenyewe!
Kimsingi wamekubaliana na maamuzi yote ya mahakama kuu kama unavyoweza kuona grounds 1 – 4.
Wanakubali kuwa kuna conflict katika vifungu vya katiba, kwamba marekebisho ya katiba yaliyomwondoa mgombea huru yalikiuka haki za binadamu zilizo ndani ya katiba yenyewe na zilizo ndani ya hati za kimataifa ambazo Tanzania imezikubali na kutia sahihi nk;
Walichoogopa kufanya ni kusema kuwa marekebisho hayo yalikiuka katiba – yaani eti kwa kuwa marekebisho yalipitishwa kwa taratibu zilizowekwa kikatiba, japo yameleta mgongano katika vifungu vya katiba hiyohiyo, basi ni sawa, na mahakama haiwezi kutengua! Hiki ndicho kichekesho kabisa. Majaji 7 akiwemo jaji kiongozi mnajifunga kitanzi wenyewe? Kwa hiyo bunge likifuata utaratibu likafuta hata kuwepo kwa ofisi ya rais wa Jamhuri ya Muungano wa TZ, basi hata mahakama haziwezi kuhoji? Hakika huu ni upuuzi!
Upuuzi mwingine huu hapa: Eti wakiruhusu mgombe huru hawajui itaishia wapi – litakuja suala la umri, kuzaliwa nk:
Where will we stop? The 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?
Yaani majaji hawaoni pia kuwa kulazimisha rais awe wa miaka 40 linaweza kuwa ni tatizo?, hawaoni sababu kwanini katiba inawakataza waliozaliwa nje ya TZ – jibu ni rahisi tu – hawa wanakuwa na uraia wa kule walikozaliwa nasi hatujaruhusu uraia wa nchi mbili
Tunaweza kusema mengi, lakini la msingi ni kuwa mahakama imejitia kitanzi. Kwa maana akiingia dikteta akainfluence au akalazimisha kuwa na bunge lake na bunge hilo likapitisha vifungu kwa kutumia theluthi mbili, basi mahakama itakaa kimya tu – maana pia hakuna ambapo mahakama inzweza kuhoji uhuru wa uchaguzi!
