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