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] ¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤ To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://listserv.icors.org/archives/gambia-l.html To Search in the Gambia-L archives, go to: http://listserv.icors.org/SCRIPTS/WA-ICORS.EXE?S1=gambia-l To contact the List Management, please send an e-mail to: [log in to unmask] ¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤¤
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