Why the WARIOBA COMMISSION has failed the nation in many ways!

From the infamous Appeals Court decision of A.G v. Rev. Christopher Mtikila we can blithely soliloquize the following paragraphs:-

THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM

ILLAMADHANI, C. J.; MUNUO, J. A.; MSOFFE J. A.; KIMAROJ,A MBAROUK, J.A.;LUANDA, J. A.; And MJASIRI, J.A.)

CIVIL APPEAL NO. 45 OF 2009

BETWEEN

THE HONOURABLE ATTORNEY GENERAL ... APPELLANT

AND

REVEREND CHRISTOPHER MTIKILA ... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dar Es Salaam,)​

(Manento, J. K.; Massati, J. And Mihayo, J.) dated the 5[SUP]th[/SUP] day of May , 2006
in

Misc. Civil Cause No. 10 of 2005


JUDGMENT OF THE COURT




.............on page .......25-27.............




The second matter is that Art 30(5) provides for the review of any Act of

Parliament in these words:


Where in any proceedings it is alleged that any law enacted or any action taken by the Government or any other authority abrogates or abridges any of the basic rights, freedoms and duties set out in Articles 12 to 29 of this Constitution, and the High Court is satisfied that the law or



25


action concerned, to the extent that it conflicts with this Constitution, is void or is inconsistent with this Constitution, then the High Court, if it deems fit, or if the circumstances or public interest so requires, instead of declaring that such law or action is void, shall have the power to decide to afford the Government or other authority concerned an opportunity to rectify the defect found in the law or action concerned an opportunity to rectify the defect found in the law or action concerned within such a period and such manner as the High Court shall determine, and such law or action shall be deemed to be valid until such time the defect is rectified or the period determined by the High Court lapses, whichever is the earlier.


The question which arises is whether a law effecting a constitutional

amendment according to Art 98(1) is like any other law passed by

Parliament.





Mr. Masaju contended that a constitutional amendment law is not like any

other law and that it is above ordinary law. That view was opposed by Mr.

Rweyongeza who was supported by Prof Mwaikusa. However, both the DPP









26


of Zanzibar and Prof Kabudi are of the same opinion as Mr. Masaju that a

constitutional amendment law is not like any other law.





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 a simple 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.
...............on page........42-44...........


However, situations can arise where the High Court and this Court can nullify a constitutional provision on the ground that it is unconstitutional in the sense that it was not enacted as provided for by Art. 98. An example is where a constitutional amendment is challenged on the grounds that it did not obtain the prerequisite number of votes according to Art. 98(1)(a). We already pointed out earlier that generally a constitutional amendment requires the support of a two-thirds majority and under Art 98(1)(b) the support of two-thirds majority of all the Members of Parliament from Zanzibar and all Members of Parliament from the Mainland. If such a challenge is sustained then the court might have to find that the article has not been enacted in accordance with the constitutional provisions and is, therefore, unconstitutional.
In such a situation the courts will be performing its constitutional function of maintaining checks and balances. Otherwise, Tanzanian courts exercise


42


calculated restraint to avoid meddling in constituencies of the other two pillars of the State. This has been amply demonstrated in numerous decisions. LUGAKINGIRA, J., himself in his ruling in Rev. Mtikila's case refused many prayers as being not justiciable. We agree with Prof Mwaikusa that it is a pity that that ruling has not been reported. We recommend to the Editorial Committee to report it.


Another example of such judicial restraint is Mwalimu Paul John Mhozya v. Attorney General (No. 1) [1996] TLR 130 (HC). The applicant sought an interlocutory injunction to restrain the President of the United Republic of Tanzania from discharging his functions pending a determination of the main case in which the applicant sought orders of declaration that: (a) the Constitution of the United Republic had been violated; (b) the President was guilty of having allowed or enabled the said violation; and (c) the continued exercise of presidential powers by President Ali Hassan Mwinyi was unconstitutional and a potential danger to the well being of the country and its citizens. It was held, inter alia,:
(iii) The principle that the functions of one branch of government should not encroach on the functions of another branch is an important one to ensure that the



43


governing of a state is executed smoothly and

peacefully;

(iv) No provision of the Constitution or any other law authorises the High Court to hold that the President can be removed or suspended from office by a body other than that which the Constitution specifically provides for;

(v) This Court has no jurisdiction to issue the order of injunction sought against the President.


Ground one 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).


After saying all that it is obvious that we cannot legally say that independent candidates are allowed. That is the province of Parliament to amend the Constitution according to Art 98(1).

Click to expand...

It is clear that the on-going constitutional amending process has offended Article 98 (1) and the High Court ought to be requested to strike out the law behind this constitutional anarchy before our very eyes...............

Jana tumemsikia Tundu Lissu akinguruma juu ya sheria ya marekebisho ya Katiba inakiuka katiba iliyopo. Tatizo ni kuwa haya mawazo sahihi yamekuja yamechelewa sana hasa ukizingatia Chadema walishiriki katika kuunda Tume ya Warioba. Kilichobaki sasa ni kwenda mahakamani kupinga sheria ya marekebisho ya katiba badala ya kuendeleza kuwachanganya wananchi na hivi vigeugeu ambavyo havina tija kabisa..............