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
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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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