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Amidst controversy, the highest court bends the law!

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by Rutashubanyuma, Sep 25, 2010.

  1. Rutashubanyuma

    Rutashubanyuma JF-Expert Member

    Sep 25, 2010
    Joined: Sep 24, 2010
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    In order to defer human rights of independent candidates until the next life of parliament, the Appeals Court had to clip her immense judicial powers generously conferred under Article 30 of the constitution by legislating a new constitutional dispensation in Article 30 (5) which constitutional framers had never intended! In Rev. Mtikila v. the A.G, the Appeals Court conceded the High Court had original jurisdiction to hear and determine constitutional petitions but was in complete variance with the High Court adhering neither Article 30 (3) nor Article 30 (5) had empowered High Court to knock off constitutional amendments! On page 17 of a 51 paged ruling, the Appeals Court decided as follows:- “Mr. Masaju submitted that since the dispute is on articles of the Constitution of the United Republic then the High Court of Tanzania had no jurisdiction to construe it. With all due respect to the learned Deputy Attorney General, we do not think that he seriously contended that. He failed to tell us which court in the whole 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 matter, is ousted there has to be an express provision to that effect….page 21…So, the High Court had jurisdiction to entertain the petition and ground one is dismissed in its entirety.” But on pages 27-28, the Appeals Court disingenuously capitulated to Prof. Kabudi; an amicus curiae, specious averment and the Court ruled as follows:- “The case of Kesavananda Bharat' v. State of Kerala, A. I. R. 1973 SC 1461 has been heavily relied upon in the High Court. We are grateful to Prof Kabudi who pointed out that Justice KHANNA at p. 1903 stated: The word 'law' in Art 13(2) does not include amendment of the Constitution. It has reference to ordinary pieces of legislation. We are of the decided opinion that that is so. We say so because an ordinary legislation can be enacted by as implied majority of parliamentarians. That is not so with a constitutional amendment law whose enactment requires a specific number of votes. Art 98(1)(a) is loud and clear that: A Bill for an Act to alter any provisions of this Constitution (other than those relating to paragraphs (b) of this subarticle) or any provisions of any law specified in List One of the Second Schedule to this Constitution shall be supported by the votes of not less than two thirds of all the Members of Parliament. That paragraph speaks for itself but we have to point out that it is two thirds of all the Members of Parliament and not just those sitting and voting. An ordinary law is not subjected to that stringent requirement.” But the said Article 30 (5) had placed five times the word “law” at par with the word “any action” vitiating all that the Appeals Court had construed as constitutional powers of the High Court to intervene on constitutional provisions. In fact every time the word law is invoked in Article 30 (5) it is accompanied by the word “or action” implying the constitutional framers had intended for the High Court to intervene on anything that encroaches upon basic rights, freedoms and duties. Certainly, the seven justices who blustered for being part of judiciary “cream” on page 20 should not be excused for overlooking clear expression of the constitution that had placed the words “law” and “any action” at par five times in Article 30 (5) rendering superfluous their contentions the word “law” is confined to normal legislations that require simple majority to pass unlike constitutional amendments which require two thirds majority of all MPs to pass. But what did the justices brag on page 21? Here is what they advanced…”… it is an undisputed fact that this Court of Appeal contains part of the cream of legal minds in this United Republic and, therefore, their opinion should be accorded the weight it deserves.” Sometimes braggarts are tolerable but not when human rights are on the fire-line!