Fatma Karume vs Attorney general: Who is legally right with regards to stay of execution in Bob Chacha Wangwe's constitutional case?

[Mindi]

Mwanasheria mkuu wa serikali amekata rufaa kwa sababu utekelezaji wa hukumu hiyo ndani ya kipindi kifupi haitawezekana bila kuleta madhara makubwa kwa taifa na wananchi wote kwa jumla. Mfumo wa Tume ya Uchaguzi hauwezi kubadilishwa ndani ya muda mfupi. Inahitaji maandalizi thabiti hususani ya kibajeti na kubadilisha sheria zetu. Ili kubadili mfumo huu mara moja mwananchi atapaswa kutozwa kodi zaidi za kuwezesha kuanzisha na kuendesha mfumo huo mpya. Haya ndiyo madhara ya kutekeleza hukumu hiyo mara moja......Hii ya Fatuma /Wangwe vs AG, great thinkers hawadhani kama itafanikiwa.

Kwa mawazo yako, na inabaki kwenye mawazo yako tu, ila ni kisingizio tu, kwamba "kutenda haki na kufuata sheria ni jambo lenye gharama kubwa na liltaleta madhara makubwa kwa taifa na wananchi wote kwa ujumla" hiki ni kichekesho cha mwaka! Unasema "haina madhara kwa sababu wananchi wameuzoea mfumo huu wa sasa" kichekesho kingine. kwa kuwa jambo baya limekuwa likifanyika muda mrefu, basi liendelee kwa kuwa "watu wamelizoea"?

Unajua gharama za kuhamishia makao makuu Dodoma kwa mwendokasi alivyofanya magufuli? unajua gharama za kufanya chaguzi za marudio kutokana na wabunge "wanaoguswa na utendaji wa JPM"? haya yote ni "halali", ila "haramu" ni kuingia gharama kwa ajili ya jambo halali la utendaji haki na kufuata katiba na sheria zetu?

Kwa hakika, ninavyoifahamu serikali hii ya awamu ya 5, inaweza kabisa ku-ignore maamuzi ya mahakama. si mara ya kwanza na si ya mwisho. mbona wananchi waliobomolewa kimara walishinda kesi na bado wakabomolewa nyumba zao?

Kwa jinsi Magufuli alivyowekeza katika kuwategemea wakurugenzi "kumbeba", sidhani kama atakuwa na plan B, na kwa hiyo atakomaa nao iwe isiwe.

 

[Stroke]

Kwa uelewa wangu notice of intention to appeal sio automatic stay.

Application for stay has to be filed, heard and determined.

 

[kmbwembwe]

wanasheria mnabwebwe, eti 'ratio decidendi', hivi kwanini msiseme tu 'the rationale for the decision'?. au ndio mbinu yakutufukuza ma 'bush lawyer'?

Eti bhana..maana mimi mpaka usiku kumetulia ndio nitasoma tena hii lugha ya mwanasheria nikiwa na kamusi lile kubwa la kizungu kuelewa kasema nini...Ndio maana hawapendi sheria nchini ifanywe kwa kiswahili ili wakoge watu kwa lugha.

 

[Matojo Cosatta]

Sorry AG kakata rufaa Ni sahihi kujadili kesi iliyoko mahakamani mitandaoni kama alivyofanya huyu wakili? Sio kuingilia uhuru wa mahakama?

Asante sana kwa kutukumbusha kuheshimu sheria kwa kuepuka kujadili swala ambalo liko mahakamani hususani rufaa ya AG dhidi ya Bob Chacha Wangwe maana katika kesi zenye mguso na mnuso wa kisiasa kuna tabia na mazoe ya kujisahau na kujadili kesi au shauri ambalo liko mahakamani kinyume na Kunga ya kishera (legal principle) ya Res subjudice, YEHODAYA

Rufaa ya AG imejikita katika uhalali wa kikatiba wa Kifungu cha 7 cha Sheria ya Taifa uchaguzi, Sura ya 343 kuhusu Wakurugenzi wa majiji, manispaa, miji na halmashauri kuwa wasimamizi wa uchaguzi wa Rais na Wabunge ngazi ya jimbo.

Uchambuzi wangu umejikita katika utekelezaji au ukaziaji wa hukumu (stay of execution) ya Mahakama Kuu na sio kesi ya msingi ya kikatiba na kadri nijuavyo (to the best of my knowledge) kwa sasa hakuna shauri lolote mahakamani linalohusu ukaziaji au utekelezaji wa hukumu ya mahakama kuu linalotokana na kesi ya rufaa ya AG & Others Vs Bob Chacha Wangwe ambayo hiko mahakama ya rufaa au kesi ya kikatiba ya Bob Chacha Wangwe Vs AG & Others ambayo iliamuliwa na mahakama kuu.

Hivyo, Kunga (principle) ya Res Subjudice ambayo inazuhia kujadili swala ambalo liko mahakamani haijavunjwa hata kidogo kwa sababu uchambuzi wangu hakujadili merits za Rufaa ya AG na Wenzake dhidi ya Wangwe.

 

[ROMUARD KYARUZI]

Safeguarding status quo has to get an end we need to polish our NEC/ constitution to sound democratically.Benefits that will derive from being democratic are great locally and internationally.First it will ensure our peace and tranquility and avoid using cohesive instruments to use excessive force during election.People will have great confidence to them because they have a mandate obtained democratically and not from intrigues.Internationally,our country will shine and get more support from financial oligarchy

 

[ROMUARD KYARUZI]

Safeguarding status quo has to get an end we need to polish our NEC/ constitution to sound democratically.Benefits that will derive from being democratic are great locally and internationally.First it will ensure our peace and tranquility and avoid using cohesive instruments to use excessive force during election.People will have great confidence to them because they have a mandate obtained democratically and not from intrigues.Internationally,our country will shine and get more support from financial oligarchy

 

[Matojo Cosatta]

Kwa uelewa wangu notice of intention to appeal sio automatic stay.

Application for stay has to be filed, heard and determined.

Unachosema ni kweli kwenye kesi zote isipokuwa kwenye kesi za kikatiba mambo ni tofauti ambapo Notice of Appeal ina operate as automatic stay, hatahivyo, kuna exceptions mbili ambazo nimezitaja kwenye uchambuzi wangu hapo juu.

 

[ngalanga]

wanasheria mnabwebwe, eti 'ratio decidendi', hivi kwanini msiseme tu 'the rationale for the decision'?. au ndio mbinu yakutufukuza ma 'bush lawyer'?

Hahahahaha mhudumu mpe moja baridi ntalipa

 

[Matojo Cosatta]

I think reading through the concluding paragraph you know the position that for the time being the ratio decidendi in Attorney General Vs Mtikila Case stands as legal position until it is decided otherwise because of its per incuriam. So in that way Cosatta opined that Fatuma she is still right

Asante sana Mwananchi kwa kutoa ufafanuzi mzuri sana kuhusu hitmisho (conclusion) langu.

 

[Matojo Cosatta]

Eti bhana..maana mimi mpaka usiku kumetulia ndio nitasoma tena hii lugha ya mwanasheria nikiwa na kamusi lile kubwa la kizungu kuelewa kasema nini...Ndio maana hawapendi sheria nchini ifanywe kwa kiswahili ili wakoge watu kwa lugha.

Sio wanasheria wenye uwezo wa kuamua lugha gani itumike katika kutunga sheria na katika kutoa haki mahakamani bali ni bunge ndo lenye mamlaka ya kuamua lugha gani itumike. Miswada ya sheria inawasilishwa na serikali bunge ikiwa katika lugha ya Kiingereza na bunge utunga sheria zikiwa kwenye lugha ya kiingereza. Hii, lawama ya kutumia kiingereza katika kutunga sheria na katika kutoa haki mahakamani inapashwa kuelekezwa kwa bunge na serikali mihimili ambayo inashiriki katika kutunga sera na sheria na sio kwa mahakama na wanasheria ambao wanatumia sheria tu baada ya kupendekezwa na serikali kama miswada na kutungwa na bunge kama sheria.

 

[Matojo Cosatta]

Hahahahaha mhudumu mpe moja baridi ntalipa

Hata mimi nikipata bia moja ya moto sio mbaya.

 

[Matojo Cosatta]

Safeguarding status quo has to get an end we need to polish our NEC/ constitution to sound democratically.Benefits that will derive from being democratic are great locally and internationally.First it will ensure our peace and tranquility and avoid using cohesive instruments to use excessive force during election.People will have great confidence to them because they have a mandate obtained democratically and not from intrigues.Internationally,our country will shine and get more support from financial oligarchy

How safeguarding status quo can be brought to an end?

 

[Abeto Malakoti]

DOES THE PENDENCY OF GOVERNMENT'S NOTICE OF APPEAL IN THE COURT OF APPEAL OPERATES AS AUTOMATIC STAY OF EXECUTION OF DECISION OF HIGH COURT IN CONSTITUTIONAL CASES?

By Matojo M. Cosatta


PART I: INTRODUCTION

It is unfortunate that I am not the constitutional lawyer rather “I m jack of all trades, and master of none”, however, let me enjoy constitutional freedom of expression by sharing my own thoughts on the matter.

As it is well known by all informed citizens of this great res republica that on 10th May, 2019, the High of Court (Main Registry) at Dar es Salaam in the case of Bob Chacha Wangwe Vs Attorney General and Others, Misc. Civil Cause No. 17 of 2018 as per Ngwala, Masoud and Matogolo (judges) declared provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 to be unconstitutional for being repugnant to, and inconsistent with some provisions of the Constitution of United Republic of Tanzania, 1977. The said provisions of election statute used to confer power on City, Municipal, Town and District Council Directors to be returning officers by operation of law in presidential and parliamentary elections at constituency level.

The Government of United Republic of Tanzania was aggrieved by such decision of High Court as result Attorney General lodged Notice of Appeal to challenge such decision of High Court on 13th May, 2019 and the source of this information is Attorney General’s Press Conference with journalists and the Public Notice issued by Office of Attorney General dated 13th May, 2019 and titled “Taarifa kwa Umma Kuhusu Msimamo wa Serikali Kuhusu Uamuzi wa Mahakama Kuu ya Tanzania Katika Kesi ya Kikatiba Iliyofunguliwa na Bob Chacha Wangwe dhidi ya Mwanasheria Mkuu wa Serikali na Wenzake Kupinga Vifungu vya Sheria ya Taifa ya Uchaguzi Kuhusu Wasimamizi wa Uchaguzi.” .

Attorney General via the said Press Conference informed the general public his legal stance on the matter that the Notice of Appeal in constitutional cases operates to stay automatically the decision of High Court. It is important to note that legal position taken by Attorney General on any legal matter is deemed to be official legal position of Government until is either recalled by Attorney General himself or is reversed by Cabinet or competent court of law as per Section 23 (1) of the Office of Attorney General (Discharge of Duties) Act, 2005.

However, the former President of Tanganyika Law Society (TLS) and counsel for petitioner (Mr. Wangwe), Bi Fatma Karume took opposite legal stance that Notice of Appeal does not operate as automatic stay of execution where the provision of statute so declared by High Court to be unconstitutional continues to breach or violates provisions of constitution in issue. Bi Fatma Karume opines that provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 declared to be unconstitutional involves continuous breach of provisions of the Constitution, therefore, Miss Karume is of the firm view that government’s Notice of Appeal does not operate automatically to stay the decision of High Court in circumstance.

Within legal fraternity and political fraternity, the serous legal and jurisprudential debate has ensued from these two antagonistic legal views, one being of Bi Fatma Karume and another being of Attorney General, Professor Adelardus Kilangi. The said serious debate centres on the following legal issue or question:


"Does pendency of Government's Notice of Appeal in the Court of Appeal operate automatically to stay the decision of High Court in constitutional cases."

This is the legal issue or question, this work intends or seeks to answer.



PART II: LEGAL ANALYSIS

As general Rule once government lodges the Notice of Appeal in appropriate registry as far as constitutional case is concerned indispensably the Notice of Appeal operates as automatic stay of execution of decision of High Court as per Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 and for easy reference the provisions of Section 14 (3) are reproduced verbatim hereunder;

​

“14(3) Notwithstanding the provisions of the Civil Procedure Code * or of any other law to the contrary, where in proceedings under this Act which do not involve continuous breach or personal injuries, the Government files a notice of intention to appeal against any decision of a court, the notice shall, when entered, operate as a stay of execution upon the decision sought to be appealed against.”​

However, this General Rule on Automatic Stay of Execution of decision of High Court in constitutional case admits two exceptions namely;

(1) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “constitutes or involves continuous breach” of provision of the constitution in issue.

(2) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “causes personal injury”.

However, the Court of Appeal of Tanzania in its order made on 8th February, 2010 arising out of the case of Attorney General Vs Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009 at page 3 of printed ruling observed that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. The Court of Appeal in its own words at page 3 of printed ruling observed as reproduced verbatim hereunder;

“However, for avoidance of doubt we wish to refresh the memories of the learned Deputy Attorney General and his team that an appeal does not operate an automatic stay. So, the law as it is at the moment and onward to the General Election in October, is what the High Court has decided, that is, independent candidates are allowed” ​

My humble opinion is that Court of Appeal made the said order per incuriam either in forgetfulness or in ignorance of existence of provisions of Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 within the purview of the term as defined in the case of Morelle Ltd v Wakeling [1955] 2 QB 379 and approved by East African Court of Appeal in the case of Kiriri Cotton Co. Vs Dewani [1958] E.A 239 . It seems to me that the Court of Appeal in making such order mistakenly had in mind the provisions of Rule 11 of the Court of Appeal Rules, 2009 instead of Section 14 (3) of Cap. 3. My humble and honest believe that Court of Appeal made the said order per incuriam is founded on the fact that Court of Appeal neither expressly nor impliedly considered or made any reference to provisions of Section 14 (3) of Cap. 3 and the decision it made falls quite squarely in provisions of Rule 11 of the Court of Appeal Rules, 2019 which is inapplicable to stay of execution of decision of High Court in Constitutional Cases.

As General Rule in the realm of “Stare Decisis” Court of Appeal is bound by its own previous decision and there are plethora of unbroken chain of legal authorities to support this legal proposition, inter alia, include the following cases;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Dodhia v. National Grindlay Bank [1970] E.A. 195

(iii) Juwata v. Kiuta, Civ. App. No. 29 of 1987

This General Rule in the realm of “Stare Decisis” that Court of Appeal is bound by its own previous decision admits several exceptions and one of them is that the Court of Appeal is not bound by its own previous decision given per incuriam in ignorance or forgetfulness of binding statutory provisions and legal authority for this legal proposition include the following;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Riziki Binti Abdulla Vs Sharifa binti Mohamed Bion Hemed [1959] E.A 1035

Since the Court of Appeal is not bound by its own previous decision given per incurium, then the three justices of the Court of Appeal are likely not to follow the ratio decindendi in Attorney General Vs Mtikila Case simply because it was given per incurium. The Court of Appeal in case of Juwata v. Kiuta, Civ. App. No. 29 of 1987 overruled its own previous decision given per incuriam in the case of Zambia Tanzania Road Services Ltd Vs J.K Pallangyo, Civil Appeal No. 9 of 1982.



PART III: CONCLUSION

In circumstances what is the position of law pro tempore? For the time being the ratio decidendi in Attorney General Vs Mtikila Case stands as legal position. Though the decision of the Court of Appeal in Attorney General Vs Mtikila Case appears to have been given per incuriam but the position of the law in the matter is as it was decided by Court of Appeal on 8th February, 2010 that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. This is so because the decision of the court once delivered remains valid until reversed by the competent superior judicial authority, in the circumstance, the decision of the court of appeal in Attorney General Vs Mtikila Case continues to be valid until is overruled by Full Bench of the Court of Appeal or is vacated by bench of three justices of appeal on review or revision.

This is how I understand the law to be correct.



Matojo M. Cosatta is advocate of High Court of Tanzania and for purpose of any comment, criticism and improvement of this work, author can be reached via his e-mail address: cosatta9@gmail.com

I am in deep love with you linguistic eloquence, legal rhetorics and your legal language flavour but above all I do appreciate the legal contents of analytical legal writing. Good jo, asante sana.

 

[Chairman Lee]

DOES THE PENDENCY OF GOVERNMENT'S NOTICE OF APPEAL IN THE COURT OF APPEAL OPERATES AS AUTOMATIC STAY OF EXECUTION OF DECISION OF HIGH COURT IN CONSTITUTIONAL CASES?

By Matojo M. Cosatta


PART I: INTRODUCTION

It is unfortunate that I am not the constitutional lawyer rather “I m jack of all trades, and master of none”, however, let me enjoy constitutional freedom of expression by sharing my own thoughts on the matter.

As it is well known by all informed citizens of this great res republica that on 10th May, 2019, the High of Court (Main Registry) at Dar es Salaam in the case of Bob Chacha Wangwe Vs Attorney General and Others, Misc. Civil Cause No. 17 of 2018 as per Ngwala, Masoud and Matogolo (judges) declared provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 to be unconstitutional for being repugnant to, and inconsistent with some provisions of the Constitution of United Republic of Tanzania, 1977. The said provisions of election statute used to confer power on City, Municipal, Town and District Council Directors to be returning officers by operation of law in presidential and parliamentary elections at constituency level.

The Government of United Republic of Tanzania was aggrieved by such decision of High Court as result Attorney General lodged Notice of Appeal to challenge such decision of High Court on 13th May, 2019 and the source of this information is Attorney General’s Press Conference with journalists and the Public Notice issued by Office of Attorney General dated 13th May, 2019 and titled “Taarifa kwa Umma Kuhusu Msimamo wa Serikali Kuhusu Uamuzi wa Mahakama Kuu ya Tanzania Katika Kesi ya Kikatiba Iliyofunguliwa na Bob Chacha Wangwe dhidi ya Mwanasheria Mkuu wa Serikali na Wenzake Kupinga Vifungu vya Sheria ya Taifa ya Uchaguzi Kuhusu Wasimamizi wa Uchaguzi.” .

Attorney General via the said Press Conference informed the general public his legal stance on the matter that the Notice of Appeal in constitutional cases operates to stay automatically the decision of High Court. It is important to note that legal position taken by Attorney General on any legal matter is deemed to be official legal position of Government until is either recalled by Attorney General himself or is reversed by Cabinet or competent court of law as per Section 23 (1) of the Office of Attorney General (Discharge of Duties) Act, 2005.

However, the former President of Tanganyika Law Society (TLS) and counsel for petitioner (Mr. Wangwe), Bi Fatma Karume took opposite legal stance that Notice of Appeal does not operate as automatic stay of execution where the provision of statute so declared by High Court to be unconstitutional continues to breach or violates provisions of constitution in issue. Bi Fatma Karume opines that provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 declared to be unconstitutional involves continuous breach of provisions of the Constitution, therefore, Miss Karume is of the firm view that government’s Notice of Appeal does not operate automatically to stay the decision of High Court in circumstance.

Within legal fraternity and political fraternity, the serous legal and jurisprudential debate has ensued from these two antagonistic legal views, one being of Bi Fatma Karume and another being of Attorney General, Professor Adelardus Kilangi. The said serious debate centres on the following legal issue or question:


"Does pendency of Government's Notice of Appeal in the Court of Appeal operate automatically to stay the decision of High Court in constitutional cases."

This is the legal issue or question, this work intends or seeks to answer.



PART II: LEGAL ANALYSIS

As general Rule once government lodges the Notice of Appeal in appropriate registry as far as constitutional case is concerned indispensably the Notice of Appeal operates as automatic stay of execution of decision of High Court as per Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 and for easy reference the provisions of Section 14 (3) are reproduced verbatim hereunder;

​

“14(3) Notwithstanding the provisions of the Civil Procedure Code * or of any other law to the contrary, where in proceedings under this Act which do not involve continuous breach or personal injuries, the Government files a notice of intention to appeal against any decision of a court, the notice shall, when entered, operate as a stay of execution upon the decision sought to be appealed against.”​

However, this General Rule on Automatic Stay of Execution of decision of High Court in constitutional case admits two exceptions namely;

(1) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “constitutes or involves continuous breach” of provision of the constitution in issue.

(2) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “causes personal injury”.

However, the Court of Appeal of Tanzania in its order made on 8th February, 2010 arising out of the case of Attorney General Vs Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009 at page 3 of printed ruling observed that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. The Court of Appeal in its own words at page 3 of printed ruling observed as reproduced verbatim hereunder;

“However, for avoidance of doubt we wish to refresh the memories of the learned Deputy Attorney General and his team that an appeal does not operate an automatic stay. So, the law as it is at the moment and onward to the General Election in October, is what the High Court has decided, that is, independent candidates are allowed” ​

My humble opinion is that Court of Appeal made the said order per incuriam either in forgetfulness or in ignorance of existence of provisions of Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 within the purview of the term as defined in the case of Morelle Ltd v Wakeling [1955] 2 QB 379 and approved by East African Court of Appeal in the case of Kiriri Cotton Co. Vs Dewani [1958] E.A 239 . It seems to me that the Court of Appeal in making such order mistakenly had in mind the provisions of Rule 11 of the Court of Appeal Rules, 2009 instead of Section 14 (3) of Cap. 3. My humble and honest believe that Court of Appeal made the said order per incuriam is founded on the fact that Court of Appeal neither expressly nor impliedly considered or made any reference to provisions of Section 14 (3) of Cap. 3 and the decision it made falls quite squarely in provisions of Rule 11 of the Court of Appeal Rules, 2019 which is inapplicable to stay of execution of decision of High Court in Constitutional Cases.

As General Rule in the realm of “Stare Decisis” Court of Appeal is bound by its own previous decision and there are plethora of unbroken chain of legal authorities to support this legal proposition, inter alia, include the following cases;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Dodhia v. National Grindlay Bank [1970] E.A. 195

(iii) Juwata v. Kiuta, Civ. App. No. 29 of 1987

This General Rule in the realm of “Stare Decisis” that Court of Appeal is bound by its own previous decision admits several exceptions and one of them is that the Court of Appeal is not bound by its own previous decision given per incuriam in ignorance or forgetfulness of binding statutory provisions and legal authority for this legal proposition include the following;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Riziki Binti Abdulla Vs Sharifa binti Mohamed Bion Hemed [1959] E.A 1035

Since the Court of Appeal is not bound by its own previous decision given per incurium, then the three justices of the Court of Appeal are likely not to follow the ratio decindendi in Attorney General Vs Mtikila Case simply because it was given per incurium. The Court of Appeal in case of Juwata v. Kiuta, Civ. App. No. 29 of 1987 overruled its own previous decision given per incuriam in the case of Zambia Tanzania Road Services Ltd Vs J.K Pallangyo, Civil Appeal No. 9 of 1982.



PART III: CONCLUSION

In circumstances what is the position of law pro tempore? For the time being the ratio decidendi in Attorney General Vs Mtikila Case stands as legal position. Though the decision of the Court of Appeal in Attorney General Vs Mtikila Case appears to have been given per incuriam but the position of the law in the matter is as it was decided by Court of Appeal on 8th February, 2010 that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. This is so because the decision of the court once delivered remains valid until reversed by the competent superior judicial authority, in the circumstance, the decision of the court of appeal in Attorney General Vs Mtikila Case continues to be valid until is overruled by Full Bench of the Court of Appeal or is vacated by bench of three justices of appeal on review or revision.

This is how I understand the law to be correct.



Matojo M. Cosatta is advocate of High Court of Tanzania and for purpose of any comment, criticism and improvement of this work, author can be reached via his e-mail address: cosatta9@gmail.com

Thank you for your effort to reveal the truth #standing for the truth #

 

[artch2311]

First and foremost, I would like to tender my sincere apology for employing English Language and legal language or technical language in analysing this subject matter of national importance in lieu of Swahili language and in lieu of plain English Language. This work is in legal language because the targeted audience was legal fraternity, this was for consumption of lawyers, however, I find that it is "lesser evil" to share this legal work with members of Jamiiforums than not sharing it at all as at JF there are several lawyers and several intellectuals of Mkiliman caliber who stand in the position to comprehend my submissions.

Read my conclusion carefully, it will tell you by necessary implication who is right and who is wrong. Conclusion need not be express, sometimes we do conclude by necessary implication.

Just tell laymen like me in simple and plain language by mentioning that either you stand with AG or Fatu..
Just as simple
Otherwise your article is useless to Great thinkers who are not lawyers

 

[BEHOLD]

Ndugu @Matojo Cossata. I salute you for such articulate thread. However being a friend of the court (an Amicus), I thought you could rightly come up with suggestive conclusion to the matter. And this is where Where We should ask our selves, Whether the declared unconstitutional sections of the election the law as per the decision of the High Court in the Wangwe's case, are of such a nature that if they are allowed to continue to they wont *constitute or involve continuous
breach* and they will not *“cause personal injury”*.

In my view, this question has answered itself in affirmative.

We all know that most DEDs who also serve as election returning officers are not only CCM's supporters and Cadres but also are the Appointees of CCM's Chairman, President Magufuli.

Secondly we have several examples of flouted electral procedures happened in Kinondoni, Korogwe(r) and Monduli Constituencies owing to intentional motives by the respective Directors who also are NEC officers.

Also the "appointing authory" has being heard from some quaters warning this appointees against declaring opposition contestants winners while they are fully aware that it is the "appointing authority " that employed them, gives them fat salaries, decent housing and posh cars for transport.

I've mentioned some examples, but the base line is; Under these circumstances and given these coming two crucial elections, YES, the declared unconstutional section of elections act, if left to continue, *they will continue to impede fair elections in this nation* and also they still will continue to *cause injury* to the opposition parties and aspirants who illegaly continues to be deprived of their rights.

This is democratic country as per the Consititution and principles of democracy must be obeyed and upheld at all the times at any cost.

 

[Abeto Malakoti]

DOES THE PENDENCY OF GOVERNMENT'S NOTICE OF APPEAL IN THE COURT OF APPEAL OPERATES AS AUTOMATIC STAY OF EXECUTION OF DECISION OF HIGH COURT IN CONSTITUTIONAL CASES?

By Matojo M. Cosatta


PART I: INTRODUCTION

It is unfortunate that I am not the constitutional lawyer rather “I m jack of all trades, and master of none”, however, let me enjoy constitutional freedom of expression by sharing my own thoughts on the matter.

As it is well known by all informed citizens of this great res republica that on 10th May, 2019, the High of Court (Main Registry) at Dar es Salaam in the case of Bob Chacha Wangwe Vs Attorney General and Others, Misc. Civil Cause No. 17 of 2018 as per Ngwala, Masoud and Matogolo (judges) declared provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 to be unconstitutional for being repugnant to, and inconsistent with some provisions of the Constitution of United Republic of Tanzania, 1977. The said provisions of election statute used to confer power on City, Municipal, Town and District Council Directors to be returning officers by operation of law in presidential and parliamentary elections at constituency level.

The Government of United Republic of Tanzania was aggrieved by such decision of High Court as result Attorney General lodged Notice of Appeal to challenge such decision of High Court on 13th May, 2019 and the source of this information is Attorney General’s Press Conference with journalists and the Public Notice issued by Office of Attorney General dated 13th May, 2019 and titled “Taarifa kwa Umma Kuhusu Msimamo wa Serikali Kuhusu Uamuzi wa Mahakama Kuu ya Tanzania Katika Kesi ya Kikatiba Iliyofunguliwa na Bob Chacha Wangwe dhidi ya Mwanasheria Mkuu wa Serikali na Wenzake Kupinga Vifungu vya Sheria ya Taifa ya Uchaguzi Kuhusu Wasimamizi wa Uchaguzi.” .

Attorney General via the said Press Conference informed the general public his legal stance on the matter that the Notice of Appeal in constitutional cases operates to stay automatically the decision of High Court. It is important to note that legal position taken by Attorney General on any legal matter is deemed to be official legal position of Government until is either recalled by Attorney General himself or is reversed by Cabinet or competent court of law as per Section 23 (1) of the Office of Attorney General (Discharge of Duties) Act, 2005.

However, the former President of Tanganyika Law Society (TLS) and counsel for petitioner (Mr. Wangwe), Bi Fatma Karume took opposite legal stance that Notice of Appeal does not operate as automatic stay of execution where the provision of statute so declared by High Court to be unconstitutional continues to breach or violates provisions of constitution in issue. Bi Fatma Karume opines that provisions of Section 7 (1) and (3) of the National Election Act, Cap. 343 declared to be unconstitutional involves continuous breach of provisions of the Constitution, therefore, Miss Karume is of the firm view that government’s Notice of Appeal does not operate automatically to stay the decision of High Court in circumstance.

Within legal fraternity and political fraternity, the serous legal and jurisprudential debate has ensued from these two antagonistic legal views, one being of Bi Fatma Karume and another being of Attorney General, Professor Adelardus Kilangi. The said serious debate centres on the following legal issue or question:


"Does pendency of Government's Notice of Appeal in the Court of Appeal operate automatically to stay the decision of High Court in constitutional cases."

This is the legal issue or question, this work intends or seeks to answer.



PART II: LEGAL ANALYSIS

As general Rule once government lodges the Notice of Appeal in appropriate registry as far as constitutional case is concerned indispensably the Notice of Appeal operates as automatic stay of execution of decision of High Court as per Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 and for easy reference the provisions of Section 14 (3) are reproduced verbatim hereunder;

​

“14(3) Notwithstanding the provisions of the Civil Procedure Code * or of any other law to the contrary, where in proceedings under this Act which do not involve continuous breach or personal injuries, the Government files a notice of intention to appeal against any decision of a court, the notice shall, when entered, operate as a stay of execution upon the decision sought to be appealed against.”​

However, this General Rule on Automatic Stay of Execution of decision of High Court in constitutional case admits two exceptions namely;

(1) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “constitutes or involves continuous breach” of provision of the constitution in issue.

(2) Notice of Appeal does not operate as automatic stay of execution of decision of High Court in constitutional cases where act, decision or provision of law declared by High Court to be unconstitutional “causes personal injury”.

However, the Court of Appeal of Tanzania in its order made on 8th February, 2010 arising out of the case of Attorney General Vs Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009 at page 3 of printed ruling observed that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. The Court of Appeal in its own words at page 3 of printed ruling observed as reproduced verbatim hereunder;

“However, for avoidance of doubt we wish to refresh the memories of the learned Deputy Attorney General and his team that an appeal does not operate an automatic stay. So, the law as it is at the moment and onward to the General Election in October, is what the High Court has decided, that is, independent candidates are allowed” ​

My humble opinion is that Court of Appeal made the said order per incuriam either in forgetfulness or in ignorance of existence of provisions of Section 14 (3) of the Basic Right and Duties Enforcement Act, Cap. 3 within the purview of the term as defined in the case of Morelle Ltd v Wakeling [1955] 2 QB 379 and approved by East African Court of Appeal in the case of Kiriri Cotton Co. Vs Dewani [1958] E.A 239 . It seems to me that the Court of Appeal in making such order mistakenly had in mind the provisions of Rule 11 of the Court of Appeal Rules, 2009 instead of Section 14 (3) of Cap. 3. My humble and honest believe that Court of Appeal made the said order per incuriam is founded on the fact that Court of Appeal neither expressly nor impliedly considered or made any reference to provisions of Section 14 (3) of Cap. 3 and the decision it made falls quite squarely in provisions of Rule 11 of the Court of Appeal Rules, 2019 which is inapplicable to stay of execution of decision of High Court in Constitutional Cases.

As General Rule in the realm of “Stare Decisis” Court of Appeal is bound by its own previous decision and there are plethora of unbroken chain of legal authorities to support this legal proposition, inter alia, include the following cases;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Dodhia v. National Grindlay Bank [1970] E.A. 195

(iii) Juwata v. Kiuta, Civ. App. No. 29 of 1987

This General Rule in the realm of “Stare Decisis” that Court of Appeal is bound by its own previous decision admits several exceptions and one of them is that the Court of Appeal is not bound by its own previous decision given per incuriam in ignorance or forgetfulness of binding statutory provisions and legal authority for this legal proposition include the following;

(i) London Street Tramways Vs London City Council, [1898] AC 375

(ii) Riziki Binti Abdulla Vs Sharifa binti Mohamed Bion Hemed [1959] E.A 1035

Since the Court of Appeal is not bound by its own previous decision given per incurium, then the three justices of the Court of Appeal are likely not to follow the ratio decindendi in Attorney General Vs Mtikila Case simply because it was given per incurium. The Court of Appeal in case of Juwata v. Kiuta, Civ. App. No. 29 of 1987 overruled its own previous decision given per incuriam in the case of Zambia Tanzania Road Services Ltd Vs J.K Pallangyo, Civil Appeal No. 9 of 1982.



PART III: CONCLUSION

In circumstances what is the position of law pro tempore? For the time being the ratio decidendi in Attorney General Vs Mtikila Case stands as legal position. Though the decision of the Court of Appeal in Attorney General Vs Mtikila Case appears to have been given per incuriam but the position of the law in the matter is as it was decided by Court of Appeal on 8th February, 2010 that pendency of appeal in the Court of Appeal arising out of constitutional case does not operate as automatic stay. This is so because the decision of the court once delivered remains valid until reversed by the competent superior judicial authority, in the circumstance, the decision of the court of appeal in Attorney General Vs Mtikila Case continues to be valid until is overruled by Full Bench of the Court of Appeal or is vacated by bench of three justices of appeal on review or revision.

This is how I understand the law to be correct.



Matojo M. Cosatta is advocate of High Court of Tanzania and for purpose of any comment, criticism and improvement of this work, author can be reached via his e-mail address: cosatta9@gmail.com

Please can you help us to make legal analysis as to whether the section 7 (1) and (2) of national election act involves continuous breach of the provisions of constitution involved in the constitutional case of Wangwe as to fall within the exception No. 1 revealed by you in your article.

I will be pleased if you will respond to my question.

 

[vvm]

Tunaomba summary just imagine ungekuwa insta ungeandika nini ili watu wa insta waelewe

 

[Matojo Cosatta]

Just tell laymen like me in simple and plain language by mentioning that either you stand with AG or Fatu..
Just as simple
Otherwise your article is useless to Great thinkers who are not lawyers

In a simple language, presence of Government's Notice of Appeal in the Court of Appeal arising out of constitutional case does not operate to stay execution or prevent implementation of decision of High Court in Bob Chacha Wangwe's Constitutional Case or any other constitutional case on basis of the decision of Court of Appeal in case of Attorney General Vs Mtikila date 18 February, 2010 in which Court of Appeal decided that presence of Government's Notice of Appeal in the Court of Appeal arising out of constitutional case does not operate to stay execution or prevent implementation of decision of High Court.

 

[Dr Akili]

In a simple language, presence of Government's Notice of Appeal in the Court of Appeal arising out of constitutional case does not operate to stay execution or prevent implementation of decision of High Court in Bob Chacha Wangwe's Constitutional Case or any other constitutional case on basis of the decision of Court of Appeal in case of Attorney General Vs Mtikila date 18 February, 2010 in which Court of Appeal decided that presence of Government's Notice of Appeal in the Court of Appeal arising out of constitutional case does not operate to stay execution or prevent implementation of decision of High Court.

The Attorney General vs Mtikila case has never been executed at any one time up to now. Private candidates are still not legally allowed up to now. Hence this case does not support your argument and the argument of Fatuma. Find another argument to support your reasoning.