Ruling on private candidates ‘intact’


Gangi Longa

Senior Member
Feb 5, 2010

Gangi Longa

Senior Member
Joined Feb 5, 2010
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Ruling on private candidates ‘intact’
By FAUSTINE KAPAMA, 8th February 2010 @ 21:01, Total Comments: 0, Hits: 42

THE High Court’s decision allowing private candidates in both parliamentary and presidential elections is still valid, the Court of Appeal stated in a judicial notice in Dar es Salaam yesterday.

Led by the Chief Justice, Mr Augustino Ramadhani, the seven justices of the court said in their notice that the appeal lodged by the Attorney General (AG) could not stay the execution of the decision.

“We wish to refresh the memories of the learned Deputy Attorney General and his team that an appeal does not operate as an automatic stay,” the full Appellate Court bench said.

They pointed out further that the law "as it is at the moment and onward to the general elections in October is what the High Court has decided; and that is, independent candidate are allowed.”

Other justices forming the full court are Justice Eusebia Munuo, Justice January Msoffe, Justice Nathalia Kimaro, Justice Mbarouk Mbarouk, Justice Bernard Luanda and Justice Sauda Mjasiri.

The court gave the judicial notice when granting adjournment of the hearing of the appeal to April 8, sought by the state, led by Deputy Attorney General George Masaju -- to give them time to prepare effectively.

Mr Masaju, assisted by the Director of Human Rights and Constitutional Affairs in the AG Chambers, Mr Mathew Mwaimu, and State Attorney Edson Mweyunge said the respondent served them his list of authorities last Saturday.

“We gave him our authorities on Friday. Therefore, we did not get enough time to prepare ourselves to argue the appeal effectively. We pray for adjournment of at least four months,” he submitted.

Advocates Richard Rweyongeza and Mpale Mpoki, for the respondent in the appeal, Rev. Christopher Mtikila, did not strongly object to the request, but pointed out that the four months’ adjournment was unreasonable.

Before seeking for adjournment, Mr Masaju sought the court’s direction on whether the composition of the full court to hear the appeal was proper. He submitted that the proper quorum should consist of three judges and not otherwise. He cited Section 27 of the Court of Appeal Rules as indicated under Article 122 of the Constitution, which state that the court shall consists of three judges for the hearing of an appeal or application.

According to him, the composition of the full court comprising not less than five justices in terms of Article 118 of the Constitution is done where there are conflicting decisions given by two different panels.

The chief justice, however, informed the state that the composition of the full court was taken into consideration of the seriousness and sensitivity of the appeal as what had happened in Zanzibar in 1984.

He said in 1984, when he was chief justice of Zanzibar; he invited for the first time, the Court of Appeal to hold its session to determine a pending serious appeal.

“The chief justice by then, the late Francis Nyalali, formed a full court of five judges to hear that appeal. If this is a wrong precedence, then it was done in 1984,” he pointed out.

He pointed further that there is no appeal after the Court of Appeal has made its decision. Therefore, he said, the effect would be the same even if the matter would go before three justices as suggested by Mr Masaju.

In the appeal, the AG is asking the appellate court to quash and set aside the decision given by High Court panel comprising judges Amir Manento, Salum Massati and Thomas Mihayo, on May 5, 2006. In their judgment, the judges allowed ordinary citizens to contest in both presidential and parliamentary seats as private candidates during elections.

They gave the AG between the date of delivery of the judgment and next general elections to put in place a legislative mechanism that would allow private candidates to participate in elections alongside with those representing political parties.

Rev Mtikila filed his petition on February 17, 2005, asking the court to declare as unconstitutional, amendment of the law and declare that he has the constitutional right, under Article 21 (1) of the constitution, to contest for the post of president or parliamentary seat as a private candidate.

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