Thanks Haruna, polemics and all. Cheers, Jah
On 11 November 2011 02:03, Haruna Darbo <[log in to unmask]> wrote:
> Jah, I knew you're foraging around for resurrection. The idea is Free and
> Fair Elections. That's the underlying message of the petition.
>
> If democracy were Hamat's pursuit, he would run as an NRP candidate and when
> he wins, he would remove the ambiguities that you and Hamat find
> troublesome.
>
> Good night. Now you want democracy.
>
> Haruna. My friend once shared with me: Haronda, democracy is one thing we
> find hard to fake. That's why you're gonna have to drag us kicking and
> screaming to adopt democracy.
> -----Original Message-----
> From: Edi Jah <[log in to unmask]>
> To: GAMBIA-L <[log in to unmask]>
> Sent: Thu, Nov 10, 2011 8:33 pm
> Subject: [G_L] JUDICIAL PROTECTION OF DEMOCRATIC VALUES: THE JUDGMENT OF THE
> COURT OF APPEAL ON INDEPENDENT CANDIDATES
>
> Folks,
>
> Independent Candidature is one of the fundamental components of
> democratic values. Notwithstanding contradictions and toxic amendments
> in our sub-standard constitution, I will hazard to say all of us here
> would advocate for it.
>
> Now why would anyone petition the IEC to uphold a piece of law
> anathema to democracy?
>
> Please read the article below.
>
> Cheers,
> Jah
>
> ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------
>
> http://www.thecitizen.co.tz/sunday-citizen/40-sunday-citizen-news/6467-special-reportjudgment-of-the-court-of-appeal-on-independent-candidates.html
>
>
> SPECIAL REPORT:JUDGMENT OF THE COURT OF APPEAL ON INDEPENDENT CANDIDATES.
> Saturday, 18 December 2010 23:50
>
>
> Formar Chief Justice,Barnabas Albert Samatta
> JUDICIAL PROTECTION OF DEMOCRATIC VALUES: THE JUDGMENT OF THE COURT OF
> APPEAL ON INDEPENDENT CANDIDATES
>
> A Public Lecture delivered by Chief Justice (rtd) Barnabas Albert
> Samatta at Ruaha University College, Iringa, November 25, 2010.
> ___________________________________
> 17th June, 2010, will always occupy a unique place in the history of
> administration of justice in this country. As all of you assembled in
> this Hall well know, on that date a seven Judge Full Bench of the
> Court of Appeal (Ramadhani, C.J., Munuo, Msoffe, Kimaro, Mbarouk,
> Luanda and Mjasiri JA) delivered its judgment in what is beyond
> rational controversy, the most important constitutional case ever to
> have been brought before a court of law in the country.
>
> Having given serious consideration to the possible grave consequences
> of that judgment on human rights, democracy and rule of law in our
> country, I have decided, not without some hesitation, to share with
> you my views on the said judgment.
>
> I wish to thank the Associate Dean of the Faculty of Law for inviting
> me to address this august gathering. I consider that invitation a
> great honour and privilege. My topic this afternoon is JUDICIAL
> PROTECTION OF DEMOCRATIC VALUES: THE JUDGMENT OF THE COURT OF APPEAL
> ON INDEPENDENT CANDIDATES.
>
> Some of you may not be sufficiently familiar with the background to
> the Court's decision. I will give an outline of it. In 1993, one Rev.
> Christopher Mtikila filed a petition before the High Court of Tanzania
> praying for, among other things, a declaration that the amendments to
> articles 39 and 67 of the Constitution of the United Republic of
> Tanzania were unconstitutional.
>
> The prayer was based upon the contention that, contrary to the
> provisions of Article 21 of the Constitution, the said amendments were
> invalid because they purported to destroy a citizen's fundamental
> right to take part in presidential, parliamentary or local council
> election as an independent candidate. The Petition was heard by the
> late Mr Justice Lugakingira. About a week before the learned Judge
> delivered his landmark judgment - on October 16, 1994, to be more
> precise – the Government tabled a Bill before the National Assembly
> seeking to deny the existence in law of the fundamental right which
> Rev. Mtikila had asked the High Court to recognize and give effect to.
> On October 24, 1994, Mr.Justice Lugakingira delivered the much-awaited
> judgment.
>
> He granted the Petition, holding, among other things, that:
> (1)Fundamental rights are not gifts from the State but they inhere in
> a person by virtue of birth and they are prior to the state and the
> law; the enactment of those rights in the Constitution is mere
> evidence of their recognition and the intention that they should be
> enforced in a court of law, and an intention that those rights should
> not be arbitrarily restricted by the state.
>
>
> (2) Parliament is given very wide powers to amend constitutional
> provisions, including those providing for basic rights, but those
> powers of Parliament can only be exercised subject to the limits
> imposed by articles 30(2) and 31 of the Constitution; what is beyond
> the powers of the Parliament to amend is only the ethic of human
> rights and not the letter by which those rights are expressed.
>
> (3) Article 21(1) of the Constitution entitles every citizen to
> participate in the government of the country, either directly or
> through freely elected representatives. It is illogical for that
> Constitution to provide, as it does in Articles 20(4) and 39, 67 and
> 77, as amended, that no person shall be compelled to belong to a
> political party and in the same breath to provide that no person shall
> run for the office except through a political party.
>
> (4) The right of every citizen to participate in the government under
> Article 21(1) of the Constitution is to be exercised according to a
> procedure set by, or under, a law. While participation through a
> political party is a procedure, the requirement that participation
> shall be through a political party only is not a procedural matter but
> substantive condition taking away the right to participate for
> citizens who do not belong to political parties.
>
> (5) When a constitutional provision enacting a fundamental right
> appears to conflict with another constitutional provision the court is
> enjoined to incline to the realization of the fundamental rights and
> may disregard the other provision if its application would result in
> injustice; it is the fundamental rights, and not the restrictions on
> them which are fundamental. It is the fundamental rights which the
> court is enjoined to guard jealously, not the restrictions;
>
> (6) The amendments made in Articles 39, 67 and 77 of the Constitution,
> restricting the right to contest in elections to political party
> candidates only, are capable of being abused to confine the right of
> governing to a few and to render illusory the emergence of a truly
> democratic society. Notwithstanding those restrictions, it shall be
> lawful for private candidates to contest elections along with
> political party candidates.
>
> The Attorney General was aggrieved by this decision. He lodged a
> notice of appeal, but later abandoned the intended appeal. Instead,
> the government vigorously pursued the aforementioned Bill before the
> National Assembly. On December 2, 1994, the House passed that Bill,
> which became to be known as the Eleventh Constitutional Amendment Act,
> 1994. The President assented to it on January 17, 1995. Silently, but
> only for several years, the citizen's right to contest an election as
> an independent candidate remained buried.
>
> Rev. Mtikikila, who in its judgment, the High Court described as "a
> determined man", was of the opinion that the constitutional amendments
> were invalid. He challenged their constitutionality before the High
> Court. A Bench consisting of Manento, J.K., Massati and Mihayo, JJ,
> heard the Petition. It agreed with the petitioner.
>
> The learned Judges held that the impugned amendments were violative
> of the democratic values and principles enshrined in the Constitution
> and also violative of the doctrine of basic features. In the course of
> their judgment, they said: ... we wish to make it very plain that in
> our view Act No. 34 of 1994 which amended article 21(1) so as to cross
> refer it to Article 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 rights and that the restriction was unnecessary and
> unreasonable, and did not meet the test of proportionality. We thus
> proceed to declare that the said amendments to Article 21(1), 39(1)(c)
> and 67(1)(b) are unconstitutional.
>
> The learned Judges made these findings after having made a very long
> analysis of the issues before them and shortly after having quoted
> with approval Mwalimu Julius K. Nyerere's following observations in
> his book, Our Leadership and the Destiny of Tanzania, published in
> 1995:
> "This is very dangerous. Where can we stop? If one section of the Bill
> of Rights can be amended, what is to stop the whole Bill of Rights
> being made meaningless by qualifications of, and amendments to, all
> its provisions?"
>
> The learned Judges also cited with approval the following observations
> by Professor Issa Shivji, made in his article, Constitutional Limits
> of Parliamentary Powers, which was published in 2003 in a special
> edition of the journal TANZANIA LAWYER:
> " the power to amend the Constitution is also limited. While it is
> true that parliament acting in constituent capacity ... can amend any
> provision of the Constitution, it cannot do so in a manner that would
> alter the basic structure or essential features of the Constitution."
> The Attorney General was aggrieved by the learned Judges' decision. He
> appealed against it to the Court of Appeal. Although that Court did
> not formally allow the appeal, in effect it did so.
>
> It strongly disagreed with the High Court's decision. It held, among
> other things, that:
> (1) The word law in Article 13(2) of the Constitution of the United
> Republic of Tanzania means ordinary law, and, therefore, that word's
> meaning does not include constitutional amendment.
>
> (2) The doctrine of basic features recognized and applied in some
> foreign jurisdictions is nebulous and lacks a litmus test.
>
>
> (3) The only limitations on Parliament's powers of amending the
> Constitution are the provisions of article 98 of the fundamental law.
>
> (4) The doctrine of basic features is, for reasons stated in
> paragraphs (2) and (3) above, not part of the constitutional law of
> Tanzania.
>
> (5) Courts of law in this country do not have power to amend the
> Constitution.
>
> (6) The Constitution must be interpreted as a whole. The doctrine
> of harmonious interpretation is applicable to that extent only. A
> court of law has no power to disregard any provision of the
> fundamental law. Where one provision is irreconcilable with another, a
> court of law is impotent to make a decision thereon. In that
> situation, the court must refer the disharmony to parliament for a
> solution.
>
> The Court of Appeal concluded its judgment with the following
> unforgettable words:
> "[T]he 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. The
> decision on whether or not to introduce independent candidates depends
> on the social needs of each state based on its historical reality.
> Thus the issue of independent candidates is political and not legal."
>
> The Court could, and perhaps should, have stopped there, but it
> preferred to part with the appeal after volunteering the following
> advice:
> "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 Article 23 of the American Convention
> and our Article 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 of human rights and particularly
> our militancy for the right to self-determination and hence our
> involvement in the liberation struggle. We should seriously ponder
> [over] that comment from a Committee of the United Nations, that is,
> the whole world."
> The independent candidates' system was thus buried again; this time by
> a court of justice! No one knows for how long, and who will resurrect
> it. What one knows is that it will have to be the Court of Appeal,
> Parliament or the people themselves in the exercise of their
> sovereignty.
>
> As will be recalled, the Court of Appeal held that the doctrine of
> basic features, otherwise known as the doctrine of basic structure, is
> nebulous. Is it so? To answer that question correctly we need first to
> have correct understanding, of the essence of the doctrine. That
> doctrine is one of the great judicial innovations made by the Supreme
> Court of India. It was first evolved in Golak Nath v. State of Punjab,
> A. 1967 S.C. 1643. It can be said to have been firmly established in
> Kesavananda v. State of Kerala, A. 1973 S.C. 1416.
>
> The innovation over-ruled the established rule of constitutional
> interpretation that all parts of a written constitution and all its
> guarantees have equal importance. According to the doctrine, the power
> to amend a constitution cannot be exercised in such a manner as to
> destroy or emasculate the fundamental features or the basic structure
> of the instrument. The underlying rationale of the doctrine in India,
> according to the Supreme Court, is not only the fact that the Indian
> Constitution is a fundamental law, but because the manner the
> instrument came into existence. It was made by the PEOPLE through
> their Constituent Assembly, and thus the people gave themselves a
> constitution.
>
> According to that Court, that being how the constitution was made, the
> people could not possibly have intended their creature - Parliament -
> to have powers to change the very face of their product, hence the
> limitation on parliamentary powers of amendment. As every lawyer
> knows, the Constitution of the United Republic of Tanzania, 1977, was
> similarly made. The application of the doctrine of basic features to
> the interpretation of that instrument is, therefore, a necessity.
>
> Having described the essence of the doctrine, I turn now to the
> question whether the said doctrine is, as was held by the Court of
> Appeal, nebulous. According to the Court, that label must be tied to
> the doctrine because, as it put it, "there is no agreed yardstick of
> what constitutes basic [features] of the constitution." With great
> respect, there may be lack of unanimity on the status of individual
> provisions in the Indian Constitution, but the same cannot be said
> with regard to the meaning of the doctrine itself.
>
> The Court of Appeal does not appear to have given its attention to the
> leading judgments of the Supreme Court on the proper approach which a
> judge should adopt when confronted with the question whether a
> particular facet of a constitution is part of the basic structure or
> is a basic feature. In L. Chandra Kumar Etc.Etc v. The Union of India
> and Others, [1997] 2 SCR 1186, Ahmad, C.J, cited with approval the
> approach formulated by Chandrachud, J., in Indira Nehru Gandhi v. Raj
> Narain, AIR 1975 SC 2299 that the proper approach for a judge who is
> confronted with such question is to examine, in each individual case,
> the place of the particular feature of the scheme of the constitution,
> its object and purpose, and the consequences of its denial on the
> integrity of the Constitution as a fundamental instrument of the
> country.
>
> This approach was expressly adopted by Bhagwati, J, in Minerva Mills
> Ltd. V. India, AIR 1980 SC 1789. The approach has, of course, not been
> regarded as the "definitive" test in this field of the constitutional
> law. The word "definitive" is defined by the Oxford Advanced Learner's
> Dictionary on Current English as follows: "final; to be looked upon as
> decisive and without the need for, or possibility of change or
> addition." The test does not close the door to improvement on it. As I
> hope to demonstrate later in this lecture, notwithstanding that lack
> of perfection in the test, the doctrine of basic features is said to
> be of great use in India. In any case, why should the features of the
> constitution which are incontestably paramount not be so regarded?
>
> The Court of Appeal based its rejection of the doctrine on some other
> grounds: first, Article 98 of our country's Constitution adequately
> provides for stiff requirements for amending some of the provisions of
> the fundamental instrument. With respect, it is submitted that this
> ground also lacks merit. The Court of Appeal's attention was
> apparently not drawn to the fact that the Supreme Court of India
> applies the doctrine notwithstanding that the Constitution of that
> country requires that certain stiff conditions be met before certain
> provisions of the Constitution are amended.
>
> The proviso to sub-article (2) of Article 368 of that fundamental
> instrument lays down that the amendment by way of change of any of the
> five areas listed therein will require to be ratified by the
> Legislatures of not less than one-half of the states. One of the
> agonizing effects of the Court of Appeal's judgment is that, subject
> to compliance with the provisions of Article 98, now Parliament can
> repeal and replace any provision of the Constitution in any manner it
> wants.
>
> Could the framers of the fundamental instrument have intended to
> confer on the legislative organ almost unlimited amending powers? Was
> the power of amendment intended to include the power to destroy or
> emasculate basic democratic values and principles enshrined in the
> fundamental law? The Court of Appeal' answer to these questions would
> be: YES. If that answer is correct, it follows, if logic is to
> prevail, that in its constituent capacity our Parliament is competent
> in law to make the following amendments to the Constitution:
>
> (a) Repeal the provisions establishing a republican system and
> replace them with provisions establishing a monarchy;
>
> (b) Repeal Article 40(2) which restricts presidential terms to two,
> each being of five years, and substitute therefor a provision
> establishing, life presidency;
>
> (c) Repeal the provisions assuring Tanzanians of the enjoyment of
> fundamental rights and freedoms mentioned therein and replace them
> with provisions empowering the executive or a representative thereof
> to decide what rights and freedoms, if any, and when and where the
> people will be entitled to enjoy them;
>
> (d) Dissolve itself and transfer its legislative powers to the Cabinet;
>
> (e) Abolish the current court system by repealing the relevant
> provisions and establish a new system whereby courts are wholly manned
> by laymen and laywomen and controlled by the President's Office
> through the ministry responsible for legal affairs;
>
> (e) Repeal Article 107A and B and substitute therefor provisions
> making courts accountable to Parliament or subjecting their decisions
> to revision by that organ's Committee;
>
> (f) Amend the Fifth Chapter of the fundamental law by conferring on
> the Public Accounts Committee of the National Assembly, a body which
> is not a court of law and its members are not judicial officers, the
> power to find a public servant guilty of theft in the course of
> employment and thereafter remit the matter to a court of law for
> sentence;
>
> (h) Repeal Article 98 and substitute therefor a provision
> authorizing the alteration of any provision of the Constitution by a
> simple majority or, even worse, by votes of a quarter of members of
> parliament present in the House;
>
> (i) Under the guise of exercising power of constitutional amendment
> or alteration, repeal and replace the whole Constitution. That is what
> was done to the 1964 constitution when the 1965 Constitution was
> enacted. However it must be pointed out that in 1965 there was no
> basic structure doctrine, and, more importantly, the repealed
> Constitution was not made by a constituent assembly, unlike the
> Constitution currently in place, namely, the Constitution of the
> United Republic of Tanzania, 1977.
>
> I submit that prior to the delivery of the Court of Appeal's judgment
> Parliament had no power to do any of these things. Sadly, as a result
> of that judgment, it now has. It would be extremely risky to bank upon
> the wisdom of Members of Parliament in averting parliamentarian
> authoritarianism. The amendment or alteration is not the same thing as
> destruction or abrogation. The legislative organ does not have power
> to make amendments whose result would be to render the Constitution an
> empty shell or which would make aspirations of the people, firmly and
> solemnly declared in the preamble to the fundamental instrument, no
> more than high sounding words of no practical significance.
>
> Article 98 of the Constitution does, of course, confer power on
> Parliament to regulate the exercise of fundamental rights and
> freedoms, but the Legislature can not destroy, emasculate or damage
> any of those rights or freedoms or their essence. The Article could
> not have been intended by the framers of the Constitution to be used
> as a licence to suffocate democracy or rule of law or to denude our
> people of their rights. The doctrine which, according to the Court of
> Appeal, is nebulous, is said to have worked wonders in India.
>
> In his book, Indian Constitutional Law, 4th edn Professor M.P Jain
> describes the positive role the doctrine has played in the field of
> constitutional law in that country. He writes as follows, at p. 895:
> "During the period 1981 to 1984, there were many straws in the wind to
> amend the Constitution in several directions which might have
> distorted the Constitution out of recognition, but the government felt
> shy of moving these amendments as it was not sure of the response of
> the Supreme Court. It is a safe assumption that the basic features
> theory has protected the Constitution from being mutilated out of
> recognition at the altar of political expediency."
>
> There is no reason to suspect, leave alone to believe, that the
> doctrine cannot work in our country.
>
> The learned Justices of Appeal seem to have an erroneous notion of the
> doctrine. That doctrine does not make the basic features of the
> constitution unamendable. What it prohibits, and correctly so, is the
> destruction, emasculation or damaging of those features or the essence
> thereof and the basic structure.
>
> The doctrine would afford greater protection of democratic values and
> principles enshrined in our country's Constitution than would do the
> safeguards contained in Article 98. If, for example, Parliament
> amended Chapter 5 of the fundamental law by establishing a Supreme
> Court above the Court of Appeal that could not be said to offend
> against the doctrine. If, however the amendment sought to subject
> decisions of the High Court or the Court of Appeal to revision by a
> body outside the Judiciary that would be violative of the doctrine,
> for it would purport to destroy some of the basic democratic values
> and principles enshrined in the Constitution, including the doctrine
> of separation of powers.
>
> In the course of their judgment the learned Justices observed:
> "These eight matters [matters listed in List Two of the Second
> Schedule to the Constitution] could have been basic structures in the
> sense that Parliament cannot amend them. However, they are amendable
> once the procedure for amendment is followed.
>
> So, there is nothing like basic structures in our Constitution."
> With profound respect, the recognition by our courts of the existence
> in our constitutional law of the doctrine of basic features would not,
> as already remarked, make any provision in the Constitution
> unamendable. If the Court of Appeal found the test formulated by
> Chandrachud, J., as to what constitutes a basic feature
> unsatisfactory, why did it not venture to improve upon it or even to
> formulate a new one? There are many judgments by the Supreme Court of
> India in various cases in which the doctrine of basic features has
> been analysed with great care and admirable clarity. One wishes that
> the Court of Appeal had considered at least some of them in its
> judgment and improved upon Chandrachud, J.'s test, if there was room
> for such step. As a wing of the state that court is by itself a source
> of law.
>
> The Court of Appeal's second reason for refusing to apply the doctrine
> of basic features was the caution on the application of the doctrine
> voiced by Professor Dietrich Conrad, a German scholar who is credited
> with being the originator of the ideas on which the doctrine is based.
>
> Referring to that caution, the Court observed:
> ... We may also point out that even Prof. Conrad himself conceded that
> there is no litmus test as to what constitutes basic structure. He
> wrote: in one of his essays carrying the title "Basic Structure of the
> Constitutional Principle:
> 'Finally, a note of caution might not be out of place. The
> jurisprudence of principles has its own distinct dangers arising out
> of the flexibility and lack of precision of principles as well as
> their closeness to rhetorical flourish. This might invite a loosening
> of judicial discipline in interpreting the explicit provisions of the
> Constitution... Tightening of judicial scrutiny would be necessary in
> order to diminish the dangers of opportunistic use of such principles
> as mere political catchword'.
>
> I am unable, not for not trying, to understand this passage as
> indicating that Professor Conrad was advocating the rejection of the
> doctrine of basic features. What he urges therein is the tightening of
> judicial scrutiny. Is it really beyond the capacity of our judges to
> discharge that task? Do we have to wait for judges outside our
> jurisdiction to lead the way? Judicial innovation is the need of the
> hour in the field of constitutional law. Our judges should believe
> enough in themselves. In any case, have some of the brilliantly
> crafted judgments of the Supreme Court of India not enormously
> deprived the Professor's remarks much of their weight?
>
> I turn now to the third reason which the Court of Appeal used in its
> refusal to apply the doctrine of basic features to the interpretation
> of the Constitution of our country. This concerns the meaning to be
> attached to the word "law" in article 30(5) of the said Constitution.
>
> Relying on the opinion of Khanna, J., in Kesavananda's case that the
> word in Article 13(2) of the Constitution of India meant an ordinary
> law and not a Constitutional Amendment Act, the Court of Appeal held
> that that was the meaning to be attached to our aforementioned
> constitutional provisions. With great respect, I am unable to share
> that view. In India, before the Constitution (24th Amendment) Act,
> 1971, which came into effect on 1st November, 1971, the word "law" in
> Article 13 meant both an ordinary law and a Constitutional amendment,
> in accordance with the view taken by Subba Rao, C.J., for the majority
> in Golak Nato v. State of Punjab. Clause (4) of the Constitution
> Amendment Act was inserted in the Bill to override that majority view.
>
> The amendment was declared void by Supreme Court in the Minerva Mills'
> case. In the Constitution of Tanzania there is no provision identical
> with or similar to that clause. It must, therefore, be correct to say
> that the Court of Appeal did not direct itself correctly on the point.
> Surprisingly, it gave no reason or reasons why it preferred to ignore
> the decision in the Minerva Mills' case, as a result of which, as
> already indicated, the opinion of Khanna, J., on the meaning to be
> attached to the word "law" in Article 13(2) became no longer valid. Be
> that as it may, in Kesavananda's case the Supreme Court did not hold
> that Parliament in India has an unlimited power of amendment after
> complying with the provisions of Article 368.
>
> Finally, as far as the doctrine of basic features is concerned, the
> Court of Appeal was also of the opinion that accepting that doctrine
> would open a floodgate to petitions similar to the one the decision on
> which gave rise to the appeal before the Court. It said:
> “We may as well add that apart from the legal argument we have
> advanced there is a purely practical issue. Where will we stop? The
> argument is that the provisions of Article 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 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 Article 21?
> "
> The learned Justices ask: "Where will we stop?" I will venture to
> answer the question. They should stop when denial or emasculation of
> fundamental rights and freedoms perpetrated in the name of
> constitutional amendments ends, if that will ever occur. Justice
> cannot be denied to a party because some other persons may use the
> party's victory as a peg on which to hang similar claims.
>
> If I may borrow the language Mr. Justice Kayode, a former Justice of
> the Supreme Court of Nigeria, used in his article, The Role of the
> Judge in Advancing Human Rights, published in the journal, DEVELOPING
> HUMAN RIGHTS IN JURISPRUDENCE, Vol.3, at p.100, I would say:
> "If floodgate it entails, let there be one, once it is a matter of
> [fundamental] rights."
>
> I propose now to turn my attention to the doctrine of harmonious
> interpretation. Rightly, the Court of Appeal was of the opinion that
> it is a court's duty, when interpreting the Constitution of the United
> Republic of Tanzania, to harmonise its provisions. But the Court did
> not stop there; it proceeded to say this:
> “If there are two more articles or portions of articles which cannot
> he harmonized, then it is Parliament which will deal with the matter
> and not the Court unless that power is expressly given by the
> Constitution, which, we have categorically said, it has not"
> With greatest respect to their Lordships, this observation cannot, in
> my considered opinion, be correct. Whereas each pillar of the State
> has, in the course of performing, its functions, the power and
> responsibility of interpreting the Constitution, where there is a
> litigation touching on what are said to be rights or obligations of
> someone, body or society, the courts, according to the Article 107A of
> the fundamental instrument, have the last say on the outcome of it.
>
> Courts are not authorized by law to transfer or delegate that power
> to another state organ, nor would it be in the interests of justice to
> do so. There are grave dangers in permitting Parliament or the
> Executive to have the last say on the interpretation of a
> constitution. Those dangers are very ably described by Professor Jain
> in his book I have already made reference to, as follows, at p. 836:
> " ... There are overwhelming reasons as to why the courts should act
> as authoritative expounder of the constitution and possess power of
> judicial review.
>
> A written constitution would be reduced to mere paper document in the
> absence of an independent organ to interpret, expound and enforce the
> same. The power of constitutional review by some organ of government
> is implicit in the concept of a written constitution which seeks to
> confer limited powers. In the absence of an accepted authority to
> interpret the constitution, a written constitution would promote
> discord rather than order in society when different organs of the
> government take conflicting action against the individual.
>
> The legislature and the executive are politically partisan bodies and
> are committed to certain policies and programmes which they wish to
> implement and, therefore, they cannot be trusted with the final power
> of constitutional interpretation. They would often bend the
> constitution to their own views and accommodate their own policies and
> the constitution would thus become a plaything of the politicians.
>
> The Judiciary is by far and large free from active political bias and
> so can be expected to expound the constitution dispassionately,
> apolitically, coolly and with some sense of detachment, to the extent
> it is humanly possible to achieve a mental condition in human beings
> ... Judicial review helps in channelizing the acute and extreme
> controversies of the day into legal channels."
>
> Be that as it may, one feels compelled to ask: If the Court of
> Appeal's stand on irreconcilable provisions of the Constitution is
> correct, what can a court of law which refers the problem to
> Parliament do if the legislative organ unanimously or otherwise
> disagrees with the court's opinion that the provisions in question are
> irreconcilable? Will that situation not inflict a very serious damage
> to the dignity of the court concerned, if not that of the whole
> Judiciary? If I may respectfully say so, one needs only to pose these
> two questions to expose the dangers and weakness of the Court of
> Appeal's decision on the point.
>
> With due respect to the learned Justices, to proceed on the basis of
> their decision is to invite confusion in the field of constitutional
> law in the country. It is submitted that when a court is confronted
> with the problem of disharmony between constitutional provisions that
> cannot be solved by invoking the doctrine of harmonious
> interpretation, it should adopt the approach of the Supreme Court of
> Ireland.
>
> Describing, it in his book, The Irish Constitution. 3rd ed, at p civ,
> Professor J.M. Kelly states:
> "Side by side with the doctrine of harmonious interpretation, and
> needing to reconcile with it, there has lately emerged the judicial
> view that some Articles of the Constitution are more important than
> others, and must in a case of conflict, take priority over them."
>
> Six authorities are cited by the author in support of those
> observations. The author also cites the following passage in the
> judgment of Finlay, C.J., in The Attorney General (The Society for the
> Protection of Unborn Children (Ireland) Ltd. V Open Door Counselling
> Ltd, [1988] IR 593:
> "I accept that where there exists an interaction of constitutional
> rights the first objective of the courts in interpreting the
> Constitution and resolving any problem thus arising should be to seek
> to harmonise such interacting rights. There are instances, however, I
> am satisfied, where such harmonization may not be possible and in
> those instances I am satisfied, as the authorities appear to
> establish, that there is a necessity to apply a priority of rights. "
>
> This approach appeals to such intellect as I possess. It is consistent
> with the doctrine of separation of powers and, I hasten to add,
> justice. I can see nothing wrong with the subordination of one
> provision to another. It is permissible canon of interpretation.
>
> To digress, if I may, from the examination of the judgment of the
> Court of Appeal, I would refer to an anonymous article, Insight into
> Court of Appeal's Verdict on Independent Candidates, published in the
> CITIZEN Newspaper on July 31, 2010, an article which was intended to
> defend the aforesaid judgment. In the course of it the author makes a
> number of startling, propositions. The following is one of them:
> "it is crystal clear to me that there is nothing in our Constitution
> which is more important than the very existence of the Union [of
> Tanganyika and Zanzibar]."
>
> With greatest respect, I cannot bring myself to agree with that
> opinion. Is the right to life, assured in Part III of the Constitution
> not more important than the Union? That Union may break or be
> dissolved, but even if that event occurs the people of "Tanganyika"
> and those of Zanzibar should still be entitled to enjoy that most
> precious fundamental right. No state organ can abolish human rights.
> Even the people themselves have no such power. Human rights, as
> correctly pointed out by Lugakingira, J., in his judgment, are not
> gifts from the State; they inhere in a person by virtue of birth. The
> Union of the United Republic of Tanzania, on the other hand, is a
> man's creation.
>
> To revert to the judgment of the Court of Appeal, it should be pointed
> out that in The People v Shaw [1982] IR1, a case discussed by
> Professor J.NI
> Kelly in his aforementioned book, the Supreme Court of
> Ireland is said to have fully and expressly acknowledged the principle
> of hierarchy of constitutional rules and rights. Kenny, J., with whom
> three of the other four Judges agreed, partly said:
> "There is a hierarchy of constitutional rights and„ when a conflict
> arises between them, that which ranks higher must prevail".
>
> The learned author reveals that the decision in that case has been
> followed in a series of recent decisions by the Supreme Court.
> Constitutional interpretation demands creativeness on the part of
> judges. As Professor Jain says, to quote from his book again:
> "Judicial review is not merely a sterile function of interpreting an
> "i" here and an "a" there, but it is a creative role which the courts
> discharge ...Constitutional interpretation is a more creative function
> than statutory interpretation."
>
> It cannot be disputed, I submit, that fundamental rights and directive
> principles of state policy are the conscience of a democratic
> constitution. Failure to pay due weight to them would upset the
> equilibrium built therein.
>
> In Ashok Kumar Gupta and Another v State of V.P and Ors, [1997] 3
> S.C.R. 269, at pp 308-309, Ramaswamy, J., speaking for the Supreme
> Court of India, said:
> "The Constitution, unlike other Acts, is intended to provide enduring
> paramount law and a basic design of the structure and power of the
> State and rights and duties of the citizens to serve the society
> through a long lapse of ages. It is not only designed to meet the
> needs of the day when it is enacted but also the needs of the altering
> conditions of the future.
>
> It contains a framework of mechanism for resolution of constitutional
> disputes. It also embeds its ideals of establishing an egalitarian
> social order to accord socio economic and political justice to all
> sections of the society assuring dignity of person and to integrate a
> united social order assuring every citizen fundamental rights assured
> in Part III and the directives in Part IV of the of Constitution. In
> the interpretation of the Constitution, words of width are both a
> framework of concepts and means to the goals in the Preamble. Concepts
> may keep changing to expand and elongate the rights.”
>
> Constitutional issues are not solved by mere appeal to the meaning of
> the words without an acceptance of the line of their growth. The
> intention of the Constitution is, rather, to outline principles than
> to engrave details.... The judge must be a tone with the spirit of
> his/ her times.
>
> Power of judicial review, a constituent power has, therefore, been
> conferred upon the judiciary which constitutes one of the most
> important and potent weapons to protect the citizens against violation
> of social, legal or constitutional rights. The judges are participants
> in the living stream of natural life, steering the law between the
> dangers of rigidity on one hand and formlessness on other hand in the
> seamless web of life.
>
> The great tides and currents which engulf the rest of the men do not
> turn aside in their course and pass the judges idly by. Law should
> subserve social purpose. Judge must be a jurist endowed with the
> legislator's wisdom, historian's search for truth, prophet's vision,
> capacity to respond to the needs of the present, resilience to cope
> with the demands of the future and to decide objectively disengaging
> himself or herself from every personal influence or predilections.”
>
> Our Court of Appeal's function is to interpret the provisions of the
> Constitution and arrive at a correct and just decision and not to
> "half —interpret" those provisions and thereafter surrender the noble
> function to an organ unauthorised by law and ill-equipped to perform
> it. If I may respectfully say so, our superior courts would , I think,
> do very well in the field of constitutional law if they are adopted
> the principles alluded to by Ramswamy, J., in the passage quoted a
> short while ago.
>
> The Court of Appeal expressed the opinion, among others, that courts
> in this country do not have the power to amend the Constitution, that
> function being that of Parliament. With respect, that observation is
> perfectly correct, but it was not necessary in the resolution of the
> issues before the Court. Rev. Mtikila did not ask the High Court (or
> the Court of Appeal itself) to amend the paramount law of the land.
> What he asked it to do was to declare that the constitutional
> amendments in question were unconstitutional on the ground that they
> were violative of Article 21 of the Constitution. That is not a prayer
> to usurp parliamentary powers.
>
> The Petitioner's contention was in essence that the purported
> amendments could not in law become part of the Constitution as they
> were void ab initio or, to use a modern expression, void from their
> inceptions.
>
> The Court of Appeal also emphasized the importance of one State pillar
> avoiding, encroaching on the functions of another. No believer in
> democracy can possibly fault that statement, but as already pointed
> out, Rev. Mtikila did not ask the High Court to perform a function of
> Parliament.
>
> What he asked that Court to do was to perform one of its own chief
> functions, namely, interpreting the Constitution and, thereafter,
> declaring that Parliament lacked legal competence to enact the
> constitutional amendments which purported to abrogate a citizen's
> right to take part in a public election as an independent candidate.
> Plainly, that is not a function of Parliament.
>
> In reaching their judgment the learned Justices of Appeal do not
> appear to have given due weight to the fact that the Constitution of
> the United Republic of Tanzania has accorded the High Court a
> dignified and crucial status as a chief guardian and trustee of the
> Constitution.
>
> That Court is enjoined by law to keep all State organs, including
> Parliament, within bounds. It is a function which must be performed
> innovately, responsibly, efficiently and boldly. Constitutional
> interpretation is a democratic function. Judges must give effect to
> the ideals and fundamental concepts engraved in the Constitution.
>
> Is the principle of free and fair elections not a basic feature of the
> Constitution of the United Republic of Tanzania? In India that
> principle has been held to be a basic feature of that country's
> constitution: see Kihota V. Zachilhu, A.1993 S.0 412 and Indira V.
> Rajnarain, A. 1975 S.C. 2299. The right to freedom of association,
> guaranteed by Article 20 (1) of our Constitution, is one of the most
> important rights in a democracy.
>
> But that right stands side by side with the right to freedom of
> dissociation, guaranteed by sub-article (4) of that Article., under
> the Constitution, a citizen is free to join a political party or not,
> as he pleases. In other words, no one may be compelled, directly or
> indirectly, to join a political party or to keep away from its
> membership.
>
> The compulsion of membership of, or sponsorship by, a political party
> is a serious denial of the right to freedom of dissociation. The
> constitutional amendments whose constitutionality Rev.Mtikila
> challenged in his Petition purported to destroy that right and also,
> to a certain degree, the right to freedom to participate in public
> affairs guaranteed by Article 21 of the Constitution. It should also
> be pointed out, I think, that and here I am content to adopt the
> words of Lugakingira, J –
> "it is contrary to every notion of free elections if non - party
> citizens are compelled to vote for party candidates."
>
> Basic democratic values or ideals and principles enshrined in the
> Constitution must be fully respected and protected. At least those
> features in the fundamental law which are incontestably basic should
> be so treated by all State organs including Parliament and the Courts.
> These include:
> 1) Supremacy of the Constitution
> 2) Unity and integrity of the State
> 3) Sovereign, democratic structure
> 4) Rule of law
> 5) Separation of powers
> 6) Independence of the judiciary
> 7) The essence of fundamental rights and freedoms
> 8) Judicial constitutional review
> 9) Principle of free and fair elections
> 10) Secular character of the Constitution
> 11) Limitations on the amending power of Parliament.
>
> Amending power that is qualified by the provisions of Article 98 only
> would leave it open to a political party with a two - thirds majority
> in Parliament to reduce the Constitution to politicians' plaything. By
> holding that the only limitations which qualify that power are the
> rules laid down in Article 98, the Court of Appeal, sadly, has given
> parliament a blank cheque to mutilate the Constitution at the altar of
> political expediency.
>
> I wish, in this context, to draw attention to the very wise words of
> Professor Jain in his aforementioned book, at page 895:
> "A constitution is national heritage and not the property of one
> single party howsoever mighty it may be and no single party has thus a
> right to institute amendments in the party interest rather than in
> national interest".
> It is a primary function of judges in this country to zealously
> protect the democratic values and principles enshrined in the
> country's Constitution.
>
> They must refuse, whatever the cost to themselves, to reduce the
> fundamental law to an empty shell. It is not even wise to imagine our
> judges leading the country to that destination.
>
> The Court of Appeal, as will be recalled, concluded its long
> consideration of the issue concerning independent candidates by
> saying:
> "The decision on whether or not to introduce independent candidates
> depends on the social needs of each State, based on its historical
> reality. Thus the issue of independent candidates is political and not
> legal."
>
> Was the Court right to hold, as in effect it did, that the issue
> concerning independent candidates was purely political? With profound
> respect, it was not. In one sense or another, a constitutional
> interpretation is a political matter.
>
> But it is also perfectly correct to say that every such interpretation
> is a legal issue. Such issue must necessarily be justiciable. I wish
> to quote four passages from three text books to support these
> propositions. The first passage is from a book, Constitutional
> Democracy In Africa, Volume 3, at pp 59-60, by Professor Ben Nwabueze:
> "Once a justiciable question... is brought before a court by a
> competent party, the court is under an inescapable duty to hear and
> decide it, unless its jurisdiction in the matter is otherwise excluded
> by an ouster clause contained either in the constitution or other law
> validly made.
>
> It is not in the court's power to decline jurisdiction of such suit;
> it has no discretion in the matter, and is therefore not at liberty to
> refuse to hear and decide it simply because it is politically
> explosive or sensitive, or because it is likely to embroil the
> judiciary in the politics of the people or provide a conflict between
> it and the political organs, or intricacy makes it especially
> difficult of determination by a court, or because it is more
> appropriate for resolution through the political process or because
> the court's involvement in it is for any other reasons considered
> inexpedient or impolitic... What was said by Chief justice John
> Marshall as long ago as 1821 remains valid today as guiding principle
> of judicial action. "The judiciary", he said, "cannot as the
> legislature may, avoid a measure because it is doubtful.
>
> With whatever doubts, with whatever difficulties, a case may be
> attended, we must decide it if it is brought before us. We have no
> more right to decline the exercise of jurisdiction which is given,
> than to usurp that which is not given. The one or the other would be
> treason to the constitution."
> The second of the four passages is from Professor Duga Das Basis's
> book, Shorter Constitution of India, 12th ed., at pp 313-314.
> It reads:
> "... the Judiciary will not enter into 'political questions' or
> questions which involve 'policy'. But the Courts cannot shirk their
> duty of interpreting the constitution. Hence, a question cannot be
> brushed as a political question if it involves the interpretation of
> provisions..."
>
> The next passage is to be found in Professor Jain's book, at
> pp.847-848. It reads as follows:
> "A question is raised at times whether the courts should entertain a
> political question. Many Constitutional law questions have political
> overtones. Should the courts refuse to take cognisance of such
> questions? If the courts do so, then the scope of constitutional
> litigation will be very much reduced and no readymade machinery may be
> available to solve such questions raising tension in body politics.
>
> [In Rajasthan v India, AIR 1977 S.0 1361 the Supreme Court said] that
> it would not entertain a purely political question which does not
> involve determination of any legal or constitutional right or
> obligation. The court is concerned only with adjudication of legal
> rights and liabilities. But merely because a question has a political
> complexion that by itself is not ground why the court should shrink
> from performing its duty under the constitution if it raises an issue
> of constitutional determination.
>
> A constitution is a matter of purest politics, a structure of power.
> Merely because a question has a political colour, the court cannot
> fold its hands. So long as a question arises whether an authority
> under the constitution has acted within the limits of its power or
> exceeded it, it can certainly be decided by the court. Indeed, it is
> its constitutional obligation to do so."
>
> The last passage, so far as the question whether the Court of Appeal
> was right in holding that the issue concerning independent candidates
> was political and not legal is concerned, is to be found in Professor
> Nwabueze's book, at pp 62-63. It reads:
> “...the field of constitutional law, in which nearly all questions are
> in their nature political, a constitution being a charter for the
> conduct of the political relations of a people, the discretion with
> which the courts are invested by the doctrine [of the political
> question] is capable of being extended to cover infinite categories of
> questions.
>
> The character of constitutional questions as political has and should
> have no bearing on the jurisdiction of the court to hear and determine
> them, if they are otherwise justifiable... As was said by Justice
> Dixon in Melbourne v Commonwealth of Australia [1947 C.L.R. 31], it is
> not a question whether the considerations are political, for nearly
> every consideration arising from the constitution can be so
> described."
>
> Justiciability is beyond a shadow of doubt a very important concept in
> the administration of justice. It is perfectly correct to say that not
> every dispute is capable of being, or should be, resolved by a court
> of law. Two of the best examples of matters which are non -
> justiciable are, perhaps, these: (1) the one which Mergarry, V.C.,
> mentions in Malone V. Metropolitan Police Commissioner [1979] Ch 344
> where he observes, among other things, that he cannot believe that
> "the court could, or should , grant a declaration that, for instance ,
> a referee in a football match was right (or wrong) in awarding a
> penalty kick"; (2) whether a particular economic programme will
> benefit the common man.
>
> If, however, a dispute relates to a legal, equitable or
> constitutional right or obligation the defendant or, as the case may
> be, the respondent cannot, however, political the dispute may
> otherwise be, successfully raise a plea of non - justiciability.
>
> I submit that, though the issue concerning independent candidates may
> have been a political one in a certain sense, it was justiciable
> because it related to the interpretation of constitutional provisions
> and the determination of the legal issue, among others,
> whether a citizen has a Fundamental right to contest a public election
> as an independent candidate and whether, if the answer to that
> question was in the affirmative, that right is a basic feature of the
> Constitution. It is submitted that any dispute whether certain
> constitutional amendments impede or prejudice the holding of fair
> elections is a legal issue and not a purely political question.
>
> Let us assume, for a moment, that the Court of Appeal was right in
> holding that the issue concerning independent candidates was a purely
> political one. That assumption, I think, makes one entitled to ask:
> Why did the Court decide to enter a political arena by giving advice
> to Parliament and the Attorney General on a political matter? In its
> judgment the Court advised those two authorities to "seriously ponder
> (over the) comment by a committee of the United Nations that is, the
> whole world." The comment referred to in that advice reads as follows:
> "The right of persons to stand for election should not be limited
> unreasonably by requiring candidates to be members of parties or
> specific parties.”
>
> It is puzzling why, as appears to be the position, if it agreed
> entirely with the comment, the Court felt unable to frown upon the
> unreasonable curtailment of the citizen's right of dissociation made
> by the constitutional amendments Rev. Mtikila complained against.
>
> The learned Justices of the Court of Appeal also considered the issue
> whether, in amending Article 21 of the Constitution of the United
> Republic of Tanzania, Parliament did more than alter the provision of
> that Article. In the course of doing so, they said:
> "...Parliment can alter "any provision" of the Constitution. We wish
> to emphasize "any provision" of the Constitution.
>
> Altering has been defined by Art 98 (2) to include:
> ... modification or correction of those provisions or repeal and
> replacement of those provisions or the re-enactment or modification of
> the application of the provisions'. We have no doubt in our minds that
> what the Eleventh Amendment did was altering Article 21 as explained
> above."
> With greatest respect, this concluding remark suffers from a serious
> incorrectness. The amendment did not just alter the provision in
> question; it destroyed or, to put it more accurately, it purported to
> destroy the fundamental right of a citizen to contest an election
> without being a member of, and sponsored by, a political party.
>
> As already observed, to amend or alter does not mean to destroy.
> To compel those who wish to contest in State elections to join
> political parties and be sponsored by those organisations is a very
> undemocratic step. The amendment inflicted a very serious disability
> on a citizen who does not wish to join a political party.
>
> That amendment and the other two offended against the great principle
> of equality before the law. They unreasonably created two distinct
> classes of citizens when it came to state elections: those who
> qualified to contest the elections as they were party members, and
> those who were barred from doing so because they were not
> authoritarianism of parliament? Is everyone in society not bound to
> respect decisions of courts even if they are inclined to disagree with
> them or to consider them erroneous? Why should a court's step of
> pre-empting an individual becoming, a victim of injustice, in the
> electoral field or otherwise, arouse anger from the people? Can
> anarchy be averted by giving way to injustice? Is it not justice which
> averts anarchy? Would the anarchy referred by the Court of Appeal not
> be caused by those in authority who would not like our people to enjoy
> their fundamental rights and freedoms?
>
> As regards the possibility of confusion taking place, it is, I think,
> enough to say that it is far more likely that that event will occur if
> superfluous words are left to hang in the Constitution than if they
> are excised. In any case, a judge would not lightly embark upon that
> course of action, there being a strong presumption that the framers of
> the Constitution intended every word therein to be an integral
> Constitution intended every word therein to be an integral part of the
> instrument. The excision would be carried out only where justice and
> common sense clearly call for that step being taken.
>
> Be that as it may, is justice not the surest foundation of stability?
> Which state organ, other than the judiciary, can tame parliamentarian
> authoritarianism, which usually is initiated or put in motion by the
> executive arm of the State? Shockingly, the Court of Appeal said it
> cannot because, in its opinion, it does not have the power to perform
> that very important function in a democracy. As one eminent jurist
> once remarked, making, fundamental rights easily amendable would make
> those rights a mere adornment as they will be right without remedies.
>
> It must never be forgotten that the people of this country did not
> surrender their sovereignty to Parliament when they resolved to create
> that organ. By enacting, through the Constituent Assembly, the
> Constitution of the United Republic of Tanzania the people reiterated,
> among other things, their refusal to recognise parliamentary supremacy
> which, as is correctly pointed out by Professor Jain, "in the context
> of the practical working of the parliamentary system... actually boils
> down to supremacy of the executive government of the day, because
> parliamentary powers are at the disposal of the government of the
> day." Since 1961 it is the doctrine of supremacy of the constitution
> which is in force in this country.
>
> I wish now to devote my attention to an issue, a very important one,
> too, which neither the High Court nor the Court of Appeal considered
> in their respective judgments. It will be recalled that Parliament
> enacted the impugned Constitutional amendments abolishing the system
> of independent candidates after Lugakingira, J. had declared the said
> system to be an essential part of representative democracy under
> Article 21 of the Constitution. In effect, the learned Judge struck
> down the said constitutional amendments.
>
> He delivered his judgment, it will be recalled, on October 24, 1994.
> As already pointed out, the President assented to the Bill which, in
> effect, annulled the learned Judge's decision. Powers of Parliament,
> like those of the Executive and the Courts, are defined, fettered and
> restrained. Since that organ is a creature of the constitution, it is
> like the other two pillars, bound to make decisions which are
> consistent with the fundamental instrument, from which its powers
> emanate. Parliament cannot sit on appeal against a decision of a court
> of law. It cannot act as a revisional authority in relation to such
> decision. It enjoys no liberty to make intrusions on purely judiciary
> terrain. It cannot, therefore annul, override or set aside a court's
> decision.
>
> Plainly, any such action would be unconstitutional on the ground that
> it is a violation of the doctrine of separation of powers. Parliament
> can, of course, validate an Act by removing the infirmity indicated in
> a judgment, but it cannot merely annul, override or set aside the
> judgment: see State of Orissa and Others v. Gopal Chandra Rath and
> Others [1995] Supp. 3S.C.R.816, 824; State of Tarni Nadu v.IVI/S
> Arooran Sugars Ltd.[1996] Supp.8S.C.R. 193, 213; The State of
> Maharashtra and Others v. Kumari Tanuja [1999] 1 S.C.R. 315, 323, and
> the four cases cited therein. It is stating the obvious to say that
> there was no infirmity indicated in Lugakingira, J.'s judgment which
> could be removed.
>
> Having held that the purported constitutional amendments in question
> were unconstitutional, the learned Judge proceeded, in effect, to
> remove the said infirmity. After that judgment no infirmity remained
> in the constitutional provisions in question. By enacting the
> constitutional amendments which Rev. Mtikila challenged before
> Manento, J.K., Massati and Mihayo, JJ, Parliament purportedly
> annulled, over - rode or set aside Lugakingira, J's judgment. That
> usurpation of power was clearly a violation of the Constitution. The
> fact that the Bill was tabled before the National Assembly before
> Lugakingira, J., delivered his judgment is utterly (1.eleVarn+
> whatsoever.
>
> As already pointed out, the issue concerning that unconstitutionality
> was not raised before the High Court or dealt with by that Court. It
> is respectfully submitted that the Court of Appeal should have
> regarded itself compelled by the interests of justice to deal with it
> after, of course, giving counsel for the parties opportunities to
> address it on the point, or to remit the question to the High Court
> for its consideration. As matters now stand, in future no judgment of
> a court of law in this country will enjoy immunity from nullification
> by Parliament.
>
> Subordination of courts to the other State pillars, including
> Parliament, is totally unacceptable. That will usher in dictatorship
> in the country.
>
> Separation of powers is a doctrine of great importance in the
> governance of a country, but in this country that doctrine has been
> placed in serious jeopardy by the Court of Appeal's judgment. It is
> not possible to guess how long it will take to have that serious
> damage rectified.
>
> I devoutly hope that between now and then Parliament will exercise
> great restraint. "If one party in the majority changes [the
> constitution] today", writes Professor Jain (at p.933 of his afore -
> quoted book), "another party in the majority will change it tomorrow
> and the constitution will cease to claim respect of the people on
> which it depends for its efficacy and survival." The law abhors
> arbitrariness regardless of who the author of it is. Like other organs
> of the State, Parliament enjoys no freedom to act arbitrarily.
>
> The legislative organ must play its role in the protection of
> fundamental rights and freedoms. On the other side of the coin,
> judges, who are supposed to constitute a special reservoir of wisdom,
> must always remember that their functions are inseparable from the
> fate of democracy, the heart and core of which system is judicial
> process.
>
> In the course of their judgment the learned Justices of Appeal
> addressed themselves on the issue concerning the need to maintain
> cordial relations between the three pillars of the State. They said:
> "Prof. gave the historical background of the decision in the Kesavananda.
>
> He said it was a result of a struggle between the Executive and [the]
> Judiciary which started over the government's bid to effect land
> reforms soon after independence. Prof Kabudi went on to cite
> pronouncements of Prime Minster Jawaharlal Nehru as evidence of the
> struggle. We do not think that it is necessary to delve into that for
> the purpose of this judgment except to say that at no time in the
> history of this country have we had sour relationship between the
> Executive and the Judiciary. That is extremely healthy and we wish to
> maintain it unless it is absolutely necessary to depart from it,"
>
> Maintenance of administrative harmony between the Judiciary and the
> other two pillars of the State is unquestionably a very useful thing
> in the governance of a country, but the desire to achieve that
> relationship cannot be permitted to stand in the way of justice. Total
> or unqualified harmony between the three pillars would unavoidably
> have its victims: justice, democracy and rule of law. That kind of
> relationship would not serve the supreme interests of the people.
> Unyielding courage of judges is a priceless asset of any country.
>
> There is no substitute for it. Judges must not hesitate to make
> decisions they consider just however unpopular those decisions are
> likely to be to Parliament, the Executive or political parties,
> including the ruling party, and regardless of their impact on the
> relations between the Judiciary and the other pillars of the State.
> Their destination must be justice. That is their only highway. They
> must always play their role of ensuring that amendments to the
> paramount law of the land "promotes in the minds and hearts of the
> people a deep emotional respect for the constitution as a symbol
> having sanctity and permanence."
>
> Distinguished Provost; Distinguished Dean;
> Distinguished Associate Dean; Distinguished Academics;
> Ladies and Gentlemen,
>
> I hope that the opinions I have endeavoured to share with you this
> afternoon have enabled you to have a better understanding of the Court
> of Appeal's judgment. I propose to end my lecture by echoing, the
> celebrated words of Abraham Lincoln, one of the greatest Presidents of
> the United States of America, who in 1865 lost his life at the hands
> of an enemy to human rights and democracy:
> "A majority held in restraint by constitutional checks and
> limitations, and always changing easily with deliberate changes of
> popular opinions and sentiments is the only sovereign of a free
> people."
>
> --
> “None of you truly believes until he loves for his brother what he
> loves for himself.” [Sahîh al-Bukhârî and Sahîh Muslim]
>
> ¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤
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--
“None of you truly believes until he loves for his brother what he
loves for himself.” [Sahîh al-Bukhârî and Sahîh Muslim]
¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤
To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface
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