Legal experts divided on independent candidates
By Njonanje Samwel
10th April 2010
Chief Justice Augustine Ramadhani.
Friends of the Court were yesterday divided on whether or not the ruling of the High Court of Tanzania on the petition that paved the way for constitutional amendments allowing the participation of independent candidates in the countrys election violated the Constitution.
Led by Chief Justice Augustine Ramadhani, University of Dar es Salaam (UDSM) law Professors - Palamagamba Kabudi and Jwan Mwaikusa, and Zanzibar Public Prosecutor, Othman Masoud they gave their opinions at the Court of Appeal in Dar es Salaam on the second and last day of hearing of states appeal filed by the government protesting the decision taken by the High Court of Tanzania.
Chief Justice Ramadhani requested the Zanzibars DPP and the law professors to be friends of Court so that they would give their views as to whether or not the High Courts decision to amend the provision in the constitution was a violation of the Constitution.
The first to give his opinion was the Zanzibar DPP Othman Masoud who said the High Court had powers to translate section 30, clause 5 of the Constitution and provide directives to carry out amendments given that sections of the countrys Constitution were contravening each other.
He, however, said the High Court had no legal mandate to declare that certain sections in the Constitution were null and void and that it was against the Constitution.
Prof Kabudi for his part said that the court had no powers to invalidate a section in the constitution because one section was contravening the other unless it acted under the directives of the Constitution.
Giving his opinion, Prof Mwaikusa said that the court had powers of hearing the private candidate row because the dispute involved citizens being denied their constitutional right.
He said according to section 107A (1) of the countrys constitution, the court was the highest authority among three state pillars, commissioned with the duty of giving justice in the United Republic of Tanzania.
Due to that, he said, the court had all rights to nullify laws and acts that denied a person, his or her right to participate in elections.
Ones right is not given by the constitutionthe constitution only protects the rights to be observed, said Prof Mwaikusa.
As the friends of court were giving their views, National Electoral Commission Director, Rajabu Kiravu also told a panel of judges who presided over the hearing that any decision to allow private candidates as ruled by the High Court would gravely affect this years general elections scheduled for October.
In your invitation letter, your honour, Chief Justice, you requested us to come here and give our views as to whether the court has powers to nullify a section in the constitution and not whether private candidates be allowed or not. If being asked, I would have answered that the court has no such powers of invalidating a section in the constitution for reasons that it contravenes with the other, unless it is under directives of the constitution itself.
He said, the disputed part, section 21 (1) of the constitution did not invalidate other sections of the constitution.
Deputy Attorney General George Masaju had earlier told the Court of Appeal that no court in Tanzania could rule on the petition that led to the constitutional amendments allowing the participation of independent candidates in the countrys elections.
Masaju made the remarks in an oral submission before a panel of seven Appeal Court judges, led by Chief Justice Augustino Ramadhani. The other members of the panel are Eusebia Munuo, January Msoffe, Natalia Kimaro, Mbaruku Mbaruku, Bernard Luande and Sauda Mjasiri.
According to the deputy AG, when provisions in the Constitution were in conflict with one another, not even the Court of Appeals could legally rule on the matter.
He said that the courts in the country had jurisdiction only if it was an ordinary law that is in conflict with the Constitution.
The deputy AG argued that the respondent in the appeal, Rev Christopher Mtikila who felt that the constitution was violating his constitutional rights to contest for the countrys presidency or a parliamentary seat as a private candidate, should have been advised to seek the intervention of either the National Assembly or non-governmental organisations dealing with human rights.
Masaju went on to argue that the May 5, 2006 High Court decision to amend a provision in the Constitution to make it accommodate the respondents prayer was a clear violation of the Constitution.
The only authority the said court had over the matter was to give advice and not to amend the constitution, he said, adding: It was wrong for the High Court to amend the provision in the constitution because that was tantamount to destroying it, while it was supposed to protect and defend it.
In view of that, he said, the High Court wrongly assumed jurisdiction in entertaining the petition, and asked the Court of Appeal to declare the decision null and void because it ran against provisions in the Constitution.
Responding, Counsel Richard Rweyongeza and Mpale Mpoki for the respondent submitted that the appeal filed by the AG was totally and completely without merits.
Rweyongeza said the High Court had not usurped powers to formulate laws as suggested by the deputy AG but it used its powers under subsection (v) of Article 30 of the Constitution to amend a provision it found to have discrepancies.
The High court has powers accorded to it by the Constitution, he said, adding that subsection (ii) of Article 7 of the constitution was very clear on the provisions in respect of which the court could not conduct a trial.
There must be express provisions of the law for that to take place and not merely by implying that the High Court has no jurisdiction.
The Attorney General has lodged an appeal petitioning the High Court ruling to the effect that independent candidates could legally participate in all levels of elections in the country.
Chief Justice Agustino Ramadhani said ruling on the matter would be made at a date to be determined later.
SOURCE: THE GUARDIAN