Hukumu ya mgombea binafsi hii hapa (AG vs Mtikila)

[Zak Malang]

Wrong, lawyers tell Court of Appeal

Speaker Sitta says issue will be discussed in tenth parliament

The Court of Appeal ruling on private candidates has come under fire from lawyers and MPs, but National Assembly Speaker, Samuel Sitta said yesterday that he foresees the matter coming up in parliament.

Speaking to reporters at the parliament grounds, Sitta said time could not allow for the matter to be discussed in the current parliament, but he remained optimistic that the necessary processes, if followed will finally land it in the house.

He said Rev Christopher Mtikila can now channel his thought on the matter through the parliamentary committee on Justice, Constitutional Affairs and Governance, which can bring it to parliament and seek amendments of the constitution.

Alternatively, he said through networking, the matter can be brought to parliament by any Member of Parliament as a private motion.

This comes in just a day after the court of appeal ruled against private candidates contesting in election in Tanzania.

Prominent lawyers and members of parliament interviewed by this paper said by the ruling, the judiciary had failed to exercise its powers. The panel of seven Appeal Court judges led by Chief Justice Augustino Ramadhan ruled that the court had no powers to determine the issue of independent candidate.

In their ruling that lasted for almost two hours, the judges said that the issue of private candidates in elections was political and not legal, and that it could therefore not be settled in court but by the parliament which has the jurisdiction to amend the constitution.

However, an independent lawyer, Prof. Abdallah Safari, told The Guardian yesterday that the ruling has proved that the judiciary, one of the three state pillars, had failed to exercise its powers in determining sensitive issues that touch on the rights of majority of Tanzanians.

"The decision is a clear indication that the judiciary has sold its powers to the Parliament. That was the issue that should be determined by the court and not the Parliament," said Safari.

Kigoma-North Member of Parliament, Zitto Kabwe supported the don saying that the verdict showed that the judiciary had surrendered its independence to the Parliament by failing to give a fair ruling on the question of independent candidate.

Dr Xavier Lwaitama, a lecturer at the University of Dar es Salaam (UDSM) criticized the Appeal Court judges who gave the verdict saying they had abdicated their duties and responsibilities so as to serve the interests of a few people in the government.

He said the Appeal Court had legal powers to determine the case, because the issue of independent candidate was a public interest matter.

The Executive Director of the Legal and Human Rights Centre (LHRC), Francis Kiwanga described the Appeal Court decision as a serious violation of human rights and failure by the judiciary to exercise its powers enshrined in the country's Constitution.

Speaking at a news conference yesterday, the LHRC director said the country's Constitution and principles of separation of powers between the judiciary, the parliament, and the executive-give powers to the judiciary to determine cases related to rights of people such as the one on independent candidate.

"If the judiciary is avoiding its duties and responsibility as interpreter of the country's laws, where should Tanzanians go in search of their rights? Obviously, their rights would be denied, and they would have nowhere to go," said Kiwanga.

Harold Sungusia, LHRC Director of Advocacy and Reform, said the government's efforts and programmes aimed to observe human rights principles and good governance could hardly be implemented if the guardian (judiciary) of the Constitution would abdicate its duties.

He said the centre planned to forward the issue to the international legal instruments if Parliament would not seriously work on the matter of independent candidate as per the ruling of the Appeal Court.

However, Lucas Selelii, Nzega Member of Parliament, has welcomed the Appeal Court verdict, saying that it was the duty of the Parliament to handle such matters.

"The verdict is a clear testimony that Parliament is more powerful than the Judiciary. Because they failed to make the decision, the judiciary should from now onward forward to the Parliament all complicated and contradictory matters," said Selelii.

Professor Haji Semboja of UDSM praised the Appeal Court decision saying, the seven judges gave correct interpretation of the law on the issue of independent candidate.

He said the court was right by forwarding the issue to the parliament to allow wananchi to decide on the matter.

"The High Court erred in its decision to allow independent candidate...the Court of Appeal gave correct interpretation of the law. It's true that the issue concerns the rights of many Tanzanians, but we have to observe the law. The judiciary cannot decide on everything," he said.

The Court of Appeal on Thursday ruled that the issue of private candidates in elections can only be settled by the parliament which has the jurisdiction to amend the constitution and not the courts.

The panel of seven Appeal Judges led by Chief Justice Augustino Ramadhani said in their ruling that private candidates would therefore not participate in the coming general election scheduled for October.

The bench whose other members were Eusebia Munuo, January Msofe, Natalia Kimaro, Mbaruku Mbaruku, Bernard Luande and Sauda Mjasiri said the issue was political and not legal thus quashing and setting aside the earlier High Court decision allowing independent candidates to run for office.

Reading the verdict which lasted for almost two hours, the Chief Justice said the decision on whether or not to introduce independent candidates depended on the social needs of each state based on its historical reality.

He, however, advised both the Attorney General and Parliament to ponder seriously the comment from the United Nations Human Rights Committee that the right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of specific parties.

He said Tanzania was known for its good record on human rights and particularly militancy for the right to self determination and involvement in the liberation struggle.

Rev Mtikila had earlier in 1993 filed a miscellaneous civil cause no. 5 of 1993, challenging among other matters, the prohibition of independent candidates for presidential, parliamentary and civic elections. This was introduced by the eighth constitutional amendment act, 1992.

In 2006, the High Court panel comprising of Judges Amir Manento, Salum Massati and Thomas Mihayo ruled in favour of re-introducing independent candidates.

However, the Attorney General (AG) appealed against the decision asking the appellate court to quash and set aside the decision.

Deputy AG George Masaju had told the court that Mtikila filed his petition to seek for orders allowing independent candidates under section 4 of the Act, Cap 3 revised Edition.

Before the appeal hearing was adjourned in February, this year, the judges allowed ordinary citizens to contest for presidential and parliamentary seats as private candidates during elections.

In April this year, Masaju told the panel that no court in the country had jurisdiction to construe the constitution, and that the High Court had erred in law by assuming legislative powers.




Source: Guardian


My take: Sitta is just dreaming to think that Parliament will discuss the issue and approve private candidates. It will never do so, even though it might try to go through the motions.

 

[August]

The biggest problem of this judgement is to allow judge to choose and pick, if someone deem that this issue is complicated or just feel otherwise, will contended that the issue at stake is not a legal one, but domestic, friendship which had gone sour etc etc, hence delaying a cause of justice.
I think this judgement will set a very bad record to the "learned Judge" though i know running with time some of those & judge will di-associate themselves with this Judgement.
It is very unfortunate that some have decided to take this route.
So Sad .................

 

[Mzee Mwanakijiji]

Hebu tujiulize.. kama Bunge likifanya mabadiliko ya Katiba kwa utaratibu halali kabisa na kusema kwenye mabadiliko hayo, kuwa mtu hawezi kupiga kura isipokuwa awe ni mwanachama wa chama cha siasa, je itakuwa halali na hakuna recourse ya mahakama kwa wale ambao hawataki kuwa wanachama wa chama siasa ili wapige kura? -- ukisoma hukumu ya mahakama the answer is an emphatic yes! well this is the reign of idiocy!

 

[Mzee Mwanakijiji]

Thanx Carmen, the issue here was to look at two constitutional provisions which are in conflict and more so one which derogates fundamental rights of a citizen, the court was not asked to deal with other articles which were not the subject matter of the complaint, hence the court could not have gone that much far.

Carmen, secondly you seem to have taken the issue so much lightly.

I have a feeling that so long as during trial two senior counsel from the AG chambers the respondent then and two counsel for the applicant were in disagreement on whether the court can declare a constitutional provision unconstitutional, and three judges of the High court agreed that the court has such powers is in itself a manifestation of the fact the issue was very complex, not to be left for a first year law student of constitutional law. I would have gone further by asking you of which college, however that is not the issue here.

As you may be also aware during hearing of the appeal the appellant had two counsel who challenged the High court decision, the respondent had two counsel who supported the judgment of the court and the court was assisted by three amicus learned in law namely professors from the University of Dar Es Salaam and the DPP of Zanzibar, at this stage too there was a disagreement on whether or not the court was right. Suffice is to say that there was a peculiar, complex and unique case which has been faced several times by the courts in India which shares with Tanzania the common law system and no other country.

Therefore saying this matter can be answered by a law student is not to accord the whole issue the weight it deserves.

Coming to the issue, going through the posts the main complaint is that the Highest court of the land abdicated from its duty, this was a matter relating to the enforcement of basic rights and the law is very clear that where a court agrees that there is an infringement it is legally bound to make an order that the citizen enjoys the right: see section 13 below;

(1)Subject to this section, in making decisions in any suit, if the High Court comes to the conclusion that the basic rights, freedoms and duties Concerned have been unlawfully denied or that grounds exist for their protection by an order, it shall have power to make all such Orders as shall be necessary and appropriate to secure the applicant the enjoyment of the basic rights, freedoms and duties conferred or Imposed on him under the provisions of sections 12 to 29 of the Constitution.

The high court did so without knocking down or declaring the offending sections unconstitutional and went on to make an order as the law provides an order which would that is necessary and appropriate to secure the applicant to the enjoyment of the basic right.

The main concern on the judgment of the Court of Appeal is that it falls short of the requirements of law. What was before the court on appeal was a matter for the enforcement of basic rights. In its judgment the court of appeal did not make an order to that effect asmandarorily requiredby law, though it agreed as a matter of law and fact that there is an infringement of the basic right yet the court did not make an order to secure the enjoyment of that right.

The judgment was purely declaratory as the court just declared that there is an infringement of the rights provided for in the constitution and there was no justification for the denial (both during trial and on appeal) and having seen that there were grounds for the protection the court did nothing to secure the enjoyment of the right. This means that if the respondent wants to enjoy the said right his remedy is to institute another proceeding to enable him the court issue an order to enjoy the rights and opinions as pronounced by the Court of Appeal.

The Court of Appeal could not have failed to so do, it could have done as it did before in the case of Joseph Warioba versus Stephen Wassira 1997 TLR 272 at page 282 where is said:

Thus, for the reasons set out above, we feel justified to read the word `corrupt or' into s 114 and it is not necessary or desirable to wait for Parliament to amend the law. We, therefore, uphold Dr Mwaikusa's submission and find that the learned trial judge, having found that the respondent was guilty of corrupt practice, wrongly declined to certify the same to the Director of Elections. The appeal is allowed with a direction to the trial court to certify to the Director of Elections in terms of s 114(1) of the Elections Act.

At page 280 the court of appeal stated:

The issue of construing s 114 was properly before the Court, and the Court is satisfied that literal construction of that section would render it discriminatory in its effect and hence ultra vires the country's Constitution. In those circumstances we are of the view that the Court is justified, and indeed has a duty, to construe the provision in a manner that brings it into conformity with the Constitution, and it would not be necessary or even desirable to wait for Parliament to amend the section.

Unaenda mahakamani kulalamika kuwa umeingiliwa kwenye nyumba yako hivyo unaenda mahakamani na kudai kuwa kuna mvamizi na unaomba mahakama itamke kuwa yeye ni mvamizi na mahakama umuondoe kwenye nyumba yako. Mahahakama ya kwanza inakubalina kutoa tamko kuwa kweli yeye ni mvamizi na inabidi atolewe kwenye nyumba. Mvamizi anataka rufaa na mahakama ya juu inakubali kuwa kweli yeye ni mvamizi lakini aendelee kukaa kwenye nyumba kwa sababujukumu la kumtoa kwenye nyumba si la mahakama. Hapo ndipo wananchi wanashindwa kuielewa Hukumu ya Mahakama ya Rufaa Tanzania

Sorry for going to the use of national language I have to think in my mothers language and then translate to my national language then to the interview language whereby in the process I miss a lot of important points which I did not want to do.

ngambo.. asante kwa hii umenisaidia kuandika majibu yangu kwani toka juzi nimekuwa nikichambua hiyo section ya mgombea binafsi na kuonesha kuwa kuna makosa ya reasoning ambayo yamefanyika ambayo mwanafunzi yeyote wa falsafa anaweza kuona toka mwanzo.

Kwanza, mahakama ya rufaa haikurudi nyuma kabisa na kusoma reasoning ya Jaji Kisanga alipohutoa hukumu ya awali 1994 kabla ya mabadiliko ya Katiba.

Pili, wamejichanganya kudai kuwa hakuna "basic structure" kwenye Katiba yetu kwani Bill of Rights naamini iko katika basic structure na huwezi kuishambulia bill of rights (ambapo haki ya kuchagua na kuchaguliwa is enshrined) ukabakia salama.

 

[Ngambo Ngali]

Hebu tujiulize.. kama Bunge likifanya mabadiliko ya Katiba kwa utaratibu halali kabisa na kusema kwenye mabadiliko hayo, kuwa mtu hawezi kupiga kura isipokuwa awe ni mwanachama wa chama cha siasa, je itakuwa halali na hakuna recourse ya mahakama kwa wale ambao hawataki kuwa wanachama wa chama siasa ili wapige kura? -- ukisoma hukumu ya mahakama the answer is an emphatic yes! well this is the reign of idiocy!

Tell them,

 

[Ngambo Ngali]

ngambo.. asante kwa hii umenisaidia kuandika majibu yangu kwani toka juzi nimekuwa nikichambua hiyo section ya mgombea binafsi na kuonesha kuwa kuna makosa ya reasoning ambayo yamefanyika ambayo mwanafunzi yeyote wa falsafa anaweza kuona toka mwanzo.

Kwanza, mahakama ya rufaa haikurudi nyuma kabisa na kusoma reasoning ya Jaji Kisanga alipohutoa hukumu ya awali 1994 kabla ya mabadiliko ya Katiba.

Pili, wamejichanganya kudai kuwa hakuna "basic structure" kwenye Katiba yetu kwani Bill of Rights naamini iko katika basic structure na huwezi kuishambulia bill of rights (ambapo haki ya kuchagua na kuchaguliwa is enshrined) ukabakia salama.

Yote tisa, kumi , leo bunge likikaa na kurekebisha sheria na kusema kuwa kuanzia leo hii nchi ni monarch (ya kifalme) kinyume cha ibara ya kwanza ya katiba inayosema:

Tanzania ni nchi moja na ni Jamhuri ya Muungano.

Na bunge likapitisha je mahakama itakaa kimya, au mahakama itarudisha suala hilo bungeni kwa marekebisho? Tusome katiba between lines na tuilewe katiba ni hai na haifi, haiendi hospitali, haiendi ICU inatakiwa iwe na uhai, imetungwa na wananchi kupitia bunge maalumu hususan kwa minaajili ya kutunga katiba . Katiba haitakiwi kujali matakwa ya kundi la watu, badala yake iendane na matakwa ya wananchi wote.

Ndio maana katiba inaanza kwenye utangulizi:

KWA KUWA SISI Wananchi wa Jamhuri ya Muungano wa Tanzania tumeamua rasmi na kwa dhati kujenga katika nchi yetu jamii inayozingatia misingi ya uhuru, haki, udugu na amani:

Katiba ni ya wananchi wote, sio ya kikundi fulani.

 

[Ngambo Ngali]

ngambo.. asante kwa hii umenisaidia kuandika majibu yangu kwani toka juzi nimekuwa nikichambua hiyo section ya mgombea binafsi na kuonesha kuwa kuna makosa ya reasoning ambayo yamefanyika ambayo mwanafunzi yeyote wa falsafa anaweza kuona toka mwanzo.

Kwanza, mahakama ya rufaa haikurudi nyuma kabisa na kusoma reasoning ya Jaji Kisanga alipohutoa hukumu ya awali 1994 kabla ya mabadiliko ya Katiba.

Pili, wamejichanganya kudai kuwa hakuna "basic structure" kwenye Katiba yetu kwani Bill of Rights naamini iko katika basic structure na huwezi kuishambulia bill of rights (ambapo haki ya kuchagua na kuchaguliwa is enshrined) ukabakia salama.

Kila nikisoma hii hukumu sipati jibu, naomba msaada wenu Buchannan, Ngoshwe, Zak Malang, Mwanakijiji, Devils Advocate na wengineo hebu jaribuni kulinganisha hukumu hii juu kesi ya Warioba hapo juu,na kesi ya Ally Linus Vrs THA ( 1998) TLR 5 iliyosema "Apart from the historical origin of certiorari, which we do not go into in this case, it is clear that the basic structure of the constitution of this country vests the judicial power in the judicature, that is, the judicial arm of the Government. The function of interpreting the laws of the state is a judicial function and for that reasons the judicial arm of the Government has the final word about the meaning of the laws of this country."

Kutona na hukumu hii na warioba sio kweli kama mahakama haikufanya kazi inavyotakiwa kikatiba na kisheria? jadala uendelee.

 

[Rutashubanyuma]

Tunakushukuru sana Devils Advocate kwa huu mchango maana hii tume ya Warioba na sheria yote iliyotungwa ya mchakato wa katiba ni ukiukwaji mkubwa wa katiba iliyopo na hii hukumu ndiyo ushahidi kamili!!!!!!!!!

 

[Zawadi B Lupelo]

Kazi ipo

 

[Zawadi B Lupelo]

Nimesikitishwa sana na kauli zifuatazo za Mahakama ya Rufani:

1. At no time in the history of this country we have had sour relationship between Executive and the Judiciary!
Hapa tunapewa somo kwamba wakubwa LAZIMA waheshimiane, Sheria zimewekwa pembeni, wakubwa waliowekana madarakani LAZIMA wapeane HESHIMA!

2. Courts are NOT the Custodians of the will of the People. That is the property of the elected Members of Parliament!
Nilikuwa sijui kama Mahakama hazifuati matakwa ya wananchi na ni kazi za wabunge pekee! Jana ndio nimefumbuka macho ndugu zangu kupitia kesi hii! Swali la kujiuliza, hizi Sheria zimetungwa kwa ajili ya mawe au miti? Napata shida sana!

3. Tanzania Courts exercise calculated restraint to AVOID MEDDLING in counstituencies of other two pillars of state!
Hii kauli utafikiri haitoki kwa Mwanasheria, ni afadhali kama ingetolewa na vijana wavuta bangi vijiweni! Kwani hapa suala lilikuwa ni kuepusha malumbano au kulinda haki za wananchi za kugombea? Naona maruwe ruwe kwenye hili. Jopo la Majaji saba (7) walipoteza fedha zetu bure kutuletea kauli za KISIASA!

4. The issue of independent candidates IS POLITICAL AND NOT LEGAL!
Hapa Jopo la Majaji saba (7) ndio limetoa kituko cha mwaka! Kama suala la mgombea binafsi SI LA KISHERIA kwa nini walilipokea Mahakamani? Mbona katika ukurasa wa 19 Mahakama ya Rufani imedai kwamba Mahakama Kuu ya Tanzania ilikuwa na mamlaka (Jurisdiction) ya kusikiliza shauri hili? Sasa Mahakama Kuu ilikuwaje na Mamlaka ya kusikiliza suala la kisiasa? Hapa nimepata homa kabisa kuhusu Hukumu ya ajabu ya Mahakama ya Rufani!

Independent of the judiciary serikali ilicheza mchezo mkali sana kwenye hii kesi

 

[Zawadi B Lupelo]

Hili limekwisha. JK tayari yuko kwenye kampeni kwa kivuli cha "ziara za Rais" mikoani. Kigoma umeme, barabara bwerere. Hata Zitto kamkubali tunaambiwa. Zitto wa Bungeni sio huyu anayekutana na JK. Tusiendelee kuwaona Majaji wa Rufaa wote 7 hawajui walichokifanya. Maslahi na AMANI ya NCHI kwanza.

Zitto tehetehetehe

 

[Zawadi B Lupelo]

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!

Duuh

 

[Zawadi B Lupelo]

Hawa Majaji saba (7) sijui hawapitii Hukumu zao wenyewe au namna gani? Wanapotuambia kwamba "at no time in the history of this country we have had sour relationship between Executive and the Judiciary" huku wakijua kwamba Serikali ilishawahi kulumbana na Mahakama na pia kulihusisha Bunge huko nyuma na Mahakama ya Rufani iliilalamikia sana Serikali katika kesi ya Attorney General v. Rev. Christopher Mtikila [1998] TLR 100 (CA). Kisanga, Ag. C. J., alikuwa na haya ya kusema kama by the way (Obiter) katika ukurasa wa 101:

"The Government drew the Judiciary into conflict with Parliament by asking the two organs to deal with the same matter simultaneously, ending into two conflicting results: the Court upholding the right of private candidates and Parliament barring that right; such a state is regrettable and udesirable, and is incompatible with the smooth adminstration of justice."


Au hawa Majaji walitaka Serikali na Mahakama warushiane ngumi kwanza ndio iwe "sour relationship?" Hawaoni kwamba Serikali mara nyingi imedharau maamuzi ya Mahakama na wanatumia "the ends justifies the means" kupata wanachotaka?

Usimlinganishe kisanga na vitu vya kijinga hawa saba wanaingia mara mbili kwa kisanga mmoja

 

[Zawadi B Lupelo]

Dont mind the English, an empty stomach leads to sound reasoning.

That is what I was saying, do you think the court of appeal will get this opportunity again? This was the time for the court to put it emphatically the the parliaments power to ammend the constitution are limited. They saw it and still abdicated from its noble duty. Fearing alone is not enough something positive could have been done.

There was an issue before the court for determination, the court ended up giving opinion, that is not the duty of the court. Those are merely obiter dictum we want ratio decidendi.

They have time to overrule their decisions though too late

 

[Zawadi B Lupelo]

You see a judge is a human being like you or me and could possibly have an inclination and expecting him or her not to be one is asking for impossibles. Even in the US where there is an open and transparent system of choosing judges who are then veted by the legislature you still find judges leaning towards being democrats or republicans.

judgeship is a state of mind where an individual is asked to remain sober and impartial in a world where impartiality isnt there. Its a huge task and possibly impossible but to a large extent these people manage.

Choosing a woman to be a judge may sound affirmative action but trust me its late in coming. We, in the judiciary have systems of vetting through appeal processes if you aren't satisfied with a decision of a particular judge.

Good

 

[Zawadi B Lupelo]

tukiachia hizo terms na utaalamu wa kisheria kitu kinacho sikitisha, ni hiyo kauli ya kusema kesi hii imeka kisiasa, sasa sijui ni wapi tunaweza kuchora mstari wa kusema kesi hii imekaa kimajunguu, ingwa facts zipo ., ua ni ya kifamilia, kisayansi na kadhalika, kama De Novo alivyo ainisha, pamoja na Zak Malanga , kwamba wazee 7 wakiongozwa na Brigedia Generali wameshindwa kuona mizizi ya katiba yetu, je ni lini hao wananchi wa Tanzania kupitia Bunge lao waliweza pewa nafasi iliyo bora kutengeneza katiba inayo wafaa?
Kutokana na Katiba hii yumeona teuzi nyingi tu mbovu mbovu ambazo zinakiuka hiyo katiba au taratibu, mfano wa huyo Jaji Mbarouk, katiba hii hihii imesababishwa Mikataba kama ya KIA, takukuru ambayo ina omba mushauri kwa mtuhumiwa refer case ya Richmond, tunaona waziri wa Fedha anafukuza wakaguzi bila kuwapa nafasi ya wao kuelezea sababu za kufukuzwa kwao, leo hii Nyumba za Serikali zimeuzwa wakuulizwa hakuna, au katiba ina mlinda, Mikata ya madini inapokuwa ni Biashara ya Mumiani na Viongozi wa serikali , wakati wananchi kupewa haki yao inakuwa ni fadhila, na mambo lukuki kwa lukuki.
ni Juu yetu mwaka huu, wabunge wote wanaotetea mfumo huu wasirudi bungeni, ni juu yetu sisi wananchi kutowapa kura , labda wapigiwe na watoto wao

Tutamkumbuka Jaji Lugakingira na Mwalusanya J

 

[Lord Diplock MR]

Tujikumbushe hapa, R.I.P Mtikila

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[Pukudu]

Hivi kesi ya kuondoa ukomo wa Urais imeamuliwaje?