Rev. Christopher Mtikila vs Attorney General [1994] TZHC 12 (24 October 1994)


B Lugakingira, J.:
This was an unusual petition. In its content and demands it constitutes several petitions in one which range from challenges to the validity of diverse laws to the protection of the Constitution and legality. The petitioner, the Rev Christopher Mtikila, is a human rights campainer-cum-political activist and was represented by C learned counsel Mr Dominic Mbezi who was assisted by Mr Richard Rweyongeza. The respondent Attorney General was represented by Mr Kipenka Msemembo Mussa, a Senior State Attorney. I wish to commend them all for the industry and brilliance that went into the preparation and presentation of arguments. D
The petition originally raised very diverse issues, many of them rather political in flavour and substance, and this prompted Mr Mussa to raise a litany of preliminary objections which the Court resolved in the early stages of the proceeding. The E objections were grounded in questions of the petitioner's locus standi cause of action and justiciability of some of the issues. At the end of the day a number of matters were struck out and issues were then framed for the survivors. In view of the character of the petition which had to be amended several times it is better to paraphrase these issues rather than merely list them. F
The first issue is a general one and is tied up with the second and fifth issues. It seeks to establish generally whether the fundamental rights guaranteed in Part III, Chapter One of the Constitution of the United Republic, 1977 are immutable. The G inquiry is prompted by a set of amendments to the Constitution vide the Eighth Constitutional Amendment Act, 1992 (No 4). The Act amends arts 39, 67 and 77 in a manner which appears to infringe the right of participation in national public affairs which is guaranteed by art 21(1); it also amends art 20 in a manner which H appears to infringe the freedom of association which is guaranteed in sub-art (1) thereof. To put it differently, the problem posed in the first issue is whether the amendments to the Constitution were validly made and, if not, whether they can be declared void pursuant to the provisions of art 64(5).
The second issue turns on the provisions of ss 8, 9, 10 and 15 of the Political Parties Act, 1992 (No 5) which was enacted pursuant to I

the amendment to art 20. These provisions are alleged to inhibit the formation of A political parties and therefore to infringe the freedom of association. I am called upon to declare them unconstitutional and void. The fifth issue arises from the amendment to arts 39, 67 and 77 as well as s 39 of the Local Authorities (Elections) Act, 1979. These amendments renders it impossible for independent candidates to contest presidential, parliamentary or local council elections. I am again called upon to remedy the situation. B
In the third issue the petition takes on ss 5(2), 13, 25 and 37--47 of the Newspapers Act, 1976 (No 3). Section 5(2) empowers the Minister responsible for matters relating to newspapers to exclude any newspaper from the operation of C any of the provisions relating to the registration of newspapers. Section 13 empowers the Minister to require any publisher of a newspaper to execute and register a bond in the office of the Registrar of Newspapers. Section 25 empowers D the Minister to order cessation of publication of any newspaper. Sections 37 - 47 are concerned with defamation and the punishment for libel. Finally, the petition takes on para 12(1) of the Government Notice No 166 of 1977 which empowers the Registrar to refuse registration of a newspaper. It is contended that all these provisions are arbitrary and liable to abuse and constitute as infringement to the freedom of expression which is guaranteed under art 18(1). E
The fourth issue turns on the freedom of peaceful assembly and public expression and questions the constitutionality of ss 40, 41, 42 and 43 of the Police Force Ordinance, Cap. 322 as well as s 11(1) and (2) of the Political Parties Act. These F provisions make it necessary for permits to be obtained in order to hold meetings or organise processions and also provide for police duties in relation thereto. In the sixth and final issue a declaration is sought on the constitutionality of the appointment of Zanzibaris to non-Union posts on the Mainland. G
In my ruling in the preliminary objections I reserved for consideration at this stage the questions of local standi, cause of action and justiciability and I will proceed to do so before considering the matters set out above.
Arguing the question of locus standi, no doubt with a mind to the common law H orthodox position, Mr Mussa submitted that the petitioner had to show a sufficient interest in the outcome. He considered this to be implied in art 30(3) of the Constitution. In his view the petitioner had to demonstrate a greater personal interest than that of the general public, and cited the Nigerian case of Thomas & Ors v Olufoseye (1) in support of his argument. I

A In that case it was held by the Court of Appeal that under s 6(6)(b) of the 1979 Nigerian Constitution it was necessary for the appellants to establish a sufficient interest in maintaining the action and this should be a personal interest over and above that of the general public. Adomola, JCA said at p 650:
B    'It is also the law as laid down in the (Adesanya) case that, to entitle a person to invoke judicial power, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself and which interest or injury is over and above that of the general public.' C
Basing on this, Mr Mussa went on to assert that the crucial factor in the petition was the petitioner himself and not the contents of the petition. Furthermore, he contended that art 26(2) of the Constitution did not in itself confer locus standi and appeared to read the provision as if it were not independent in itself. D
In response Mr Mbezi argued that standing was certainly conferred on the petitioner by art 26(2) and that personal interest (or injury) did not have to be disclosed in that context. He maintained that the alleged illegality of the laws was E sufficient to justify the petition under that provision. Mr Mbezi further stated that the petitioner acquired locus standi under art 30(3) as well and referred to the dispersal of his meeting under the provisions of the Police Force Ordinance, the refusal to register his party under the provisions of the Political Parties Act and the F banning of Michapo and Cheka newspapers (his alleged mouthpieces) as sufficiently demonstrating the petitioner's interest within the contemplation of art 30(3). Mr Mbezi further argued that in view of the provisions of art 64(5) the Court could be moved into action by any petitioner.
G I have given due consideration to the contending arguments and feel called upon to deal with the subject at some length. The status of a litigant in administrative law is a crucial factor and it has assumed an added dimension in constitutional law in the wake of written constitutions. In English common law the litigant's locus standi was the handmaid of judicial review of administrative actions. H Whenever a private individual challenged the decision of an administrative body the question always arose whether that individual had sufficient interest in the decision to justify the court's intervention. Hence, it is stated in Wade and Phillips, Constitutional Law (1965: 672): I

   'In administrative law it is necessary for a complainant to have a peculiar grievance which is A not suffered in common with the rest of the public.'
The turning point in England came with the procedural reforms in judicial review, vide s 31 of the Supreme Court Act, 1983, which was to lead in the course of the B 1980 to the recognition of the existence of public law as a distinct sphere from private law. In other parts of the Commonwealth, notably India and Canada, a similar but imperseptible development came to manifest itself in the doctrine of public interest litigation. Traditionally, common law confines standing to litigate in C protection of public rights to the Attorney general and this was reaffirmed by the House of Lords in Guriet v Union of Post Office Workers (2), and the Attorney General's discretion in such cases may be exercised at the instance of an individual. D
But before even the enactment of the Supreme Court Act a liberal view of standing was already taking shape and a generous approach to the issue was already considered desirable. This is illustrated by the words of Lord Diplock in IRC v National Federation of Self-Employed and Small Businesses Ltd (3) at p 107: E
   'It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation or even a single spirited taxpayer, were prevented by out-dated technical rules of locus standi from bringing the matter to the attention of the a court to vindicate the rule of law and get the unlawful conduct stopped.' F
Yet more contemporary developments indicate that in England judges are  beginning to acknowledge the possible appearance of apparent 'busy-bodies' where public interest litigation is concerned. The late Raymond Blackburn, a G lawyer and former Member of Parliament, litigated several public interest questions in which he evidently had no greater interest than the other members of the public. In R v Metropolitan Police Commissioner, ex parte Blackburn, (4), he challenged police policy in not enforcing the gaming or obscenity laws, and in Blackburn v Attorney General (5), he challenged Government policy in joining the European Community. H
The developments in Canada have been no less breathtaking and we there find more generous standing rules applied than elsewhere in the older Commonwealth. This has been largely facilitated by the existence of a written constitution and the incorporation of a charter of basic rights. The taxpayer is the central figure in the Canadian I

A approach. In Thorson v AG of Canada, (6), a taxpayer was allowed by a majority to challenge the constitutionality of the Official Languages Act.
Laskin, J, speaking for the majority, contemplated '... whether a question of constitutionality should be immunized from judicial review by denying standing to anyone to challenge the impugned statute.' It was observed that standing in B constitutional cases was a matter for the exercise of judicial discretion. In the case of Nova Scotia Board of Censors v McNeil, (7), the Supreme Court again granted standing to a taxpayer to challenge the validity of a provincial Act regulating film C and theatre shows. This position is also illustrated in Minister of Justice v Borowski (8) where the majority granted standing to a taxpayer impugning federal legislation allowing abortion, and ruled:
D    '... to establish status as a plaintiff in a suit seeking a declaration that the legislation is invalid, if there is a serious issue of invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other and effective manner in which the issue may be brought before the Court.'
E The Canadian Supreme Court has in fact extended the liberalising affect of these judgments beyond constitutional cases.
Finally, it is important to revisit the Nigerian position. What was said in Thomas (1) was not merely an expression of the seeming inflexibility of s 6(6)(b) of the 1979 F Nigerian Constitution but it was also a product of colonial heritage. Soon after the attainment of independence Nigerian courts found themselves having to determine when and under what circumstances would a litigant be accorded standing to challenge the constitutionality of a statute or to ask for a judicial review. In Olawayin v AG of Northern Nigeria (9) the plaintiff had challenged the G constitutionality of a law which prohibited children from engaging in political activities. The trial court dismissed the claim on the ground that no right of the plaintiff was alleged to have been infringed and that it would be contrary to public principle to make the declaration asked for in vacuo. He appealed to the Federal H Supreme Court which dismissed the appeal on the same ground of absence of sufficient interest. In a classic restatement of the orthodox common law approach, Unsworth, FJ said, at p. 274:
   'There was no suggestion that the appellant was in imminent danger of coming into conflict with the law or that there has been any real or I

   direct interference with his normal business or other activities - the appellant failed to show A that he had a sufficient interest to sustain a claim - to hold that there was an interest here would amount to saying that a private individual obtains an interest by the mere enactment of a law which may in future come in conflict.
Curiously, the Nigerian courts remained stuck in that position even when the 1979 B Constitution suggested a way out with the clause -
   'Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.' C
This is illustrated in the much criticized decision in Adesanya v President of Nigeria & Anor (10). In that case the appellant brought action challenging the appointment by the President of the second respondent to the chairmanship of the D Federal Electoral Commission. The latter was at the material time the Chief Judge of Bendel State and was, therefore, disqualified from being appointed a member of the Commission. When the matter came up for final disposal before the Supreme Court it was unanimously held that the appellant had no locus standi E to bring the action on the ground that he had not demonstrated the appointment and subsequent confirmation by the Senate of the second respondent had in any way infringed his civil rights and obligations. Significantly, though, Fatayi-Williams, CJN who delivered the leading judgment had these interesting remarks to make (at p 20): F
   'I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written Federal Constitution, where rumour mongering is the pastime of the market places and the construction sites. To deny any member of such a society who is aware G or believes, or is led to believe, that there has been an infraction of any of the provisions of our Constitution, or that any law passed by any of our Legislative Houses, whether Federal or State, is unconstitutional, access to a Court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready receipe for organized disenchantment with the judicial process.' H
There was unfavorable reaction from the public and the profession to the Adesanya decision and the ambivalence of the Chief Justice in the above passage provided more ammunition. Henceforth many of the Nigerian courts preferred to use the broad and I

A liberal part of the judgment of the Chief Justice. Therefore, in Chief Isagba v Alege (11), Omosun, J accorded standing to a plaintiff by holding that any Nigerian taxpayer had sufficient interest in the observance of the provisions of the Constitution by any organ of the State or its agency. And in AG of Bendel State v AG of Nigerian (12), Obaseki, JSC, who was a party to the decision in Adesanya, came around to say: B
   'The constitution has opened the gates to the courts by its provisions and there can be no justifiable reasons for closing the gates against those who do not want to be governed by a law enacted NOT in accordance with the provisions of the constitution.' C
The shift in Nigeria was sealed in Adediran v Interland Transport Ltd (13), where Karibi-Whyte, JSC said:
D    '. . . the restriction imposed at common law on the right of action - is inconsistent with the provisions of s 6(6)(b) of the Constitution, 1979 and to that I think the high constitutional policy involved in s 6(6)(b) is the removal of the obstacles erected by the common law requirements against individuals bringing actions before the court against the government and its institutions . . .' E
It was necessary to treat the subject at this length in order to demonstrate that Mr Mussa's appreciation of locus standi in the context of constitutional litigation no longer holds good. The notion of personal interest, personal injury or sufficient interest over and above the interest of the general public has more to do with F private law as distinct from public law. In matters of public interest litigation this Court will not deny standing to a genuine and bona fide litigant even where he has no personal interest in the matter. This position also accords with the decision in G Benazir Bhutto v Federation of Pakistan (14), where it was held by the Supreme Court that the traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of if the petitionis brought to the court by a person acting bona fide.
H The relevance of public interest litigation in Tanzania cannot be over-emphasized. Having regard to our socio-economic conditions, this development promises more hope to our people than any other strategy currently in place. First of all, illiteracy is still rampant. We were recently told that Tanzania is second in Africa in wiping out illiteracy but that is statistical juggling which is not reflected on the ground. If we were that literate it would have been unnecessary for I

Hanang District Council to pass by-laws for compulsory adult education which A were recently published as Government Notice No 191 of 1994. By reason of this illiteracy a greater part of the population is unaware of their rights, let alone how the same can be realised. Secondly, Tanzanians are massively poor. Our ranking in B the world on the basis of per capita income has persistently been the source of embarrassment. Public interest litigation is a sophisticated mechanism which requires professional handling. By reason of limited resources the vast majority of our people cannot afford to engage lawyers even where they were aware of the infringement of their rights and the perversion of the constitution. C
Other factors could be listed but perhaps the most painful of all is that over the years since independence Tanzanians have developed a culture of apathy and silence. This, in large measure, is a product of institutionalised mono-party politics which in its repressive dimension, like detention without trial, supped up initiative and guts. The people found contentment in being receivers without being seekers. D Our leaders very well recognise this, and with the emergence of transparency in governance they have not hesitated to affirm it. When the National Assembly was debating Hon. JS Warioba's private motion on the desirability of a referendum before some features of the Constitution were tampered with, Hon. Sukwa Said E Sukwa, after two interruptions by his colleagues, continued and said (Parliamentary Debates, 26 August 1994):
   'Mheshimiwa Spika, nilisema kwamba tatizo la nchi yetu sic wananchi. Lazima tukubali hili F kwa kweli, tatizo ni sisi viongozi. Kama sisi viongozi tutakubaliana, wananchi hawana matatizo. Mimi nina hakika Mheshimiwa Spika. Kama viongozi wa Tanzania wote, wa pande zote mbili wa Zanzibar na wa Tanzania Bara, tutakubali kusema Kesho Serikali moja, basi itakuwa kesho, na wananchi watafanya maandamano kuunga mkono. Maana wananchi wetu hawana tatizo. Kwa nini tunawapolekea hili tatizo? Nasema tatizo ni sisi viongozi.' G
Given all these and other circumstances, if there should spring up a public-spirited individual and seek the Court's intervention against legislation or actions that H pervert the Constitution, the Court, as guardian and trustee of the Constitution and what it stands for, is under an obligation to rise up to the occasion and grant him standing.
The present petitioner is such an individual.
These principles find expression in our constitution. It is apparent I

A from the scheme of Part III, Chapter One of the Constitution that every person in Tanzania is vested with a double capacity: the capacity as an individual and the capacity as a member of the community. In his former capacity he enjoys all the basic rights set out in art 12 to art 24; in the latter capacity he is bound to discharge duties towards the community as indicated in art 25 to art 28. This B scheme reflects the modern trend in constituionalism which recognises the pre-emimence of the community in the formulation of the constitution. It is recognised that rights are correlative with functions: we have them that we may make our contribution to the social end. Our Constitution goes further to C emphazise the two capacities by equipping the individual with a double standing to sue. In the first place he is vested with standing by art 30(3) which states:
D    '(3) Where any person alleges that any provision of this Part of this Chapter or any law involving a basic right or duty has been, is being or is likely to be contravened in relation to him in any part of the United Republic, he may, without prejudice to any other action or remedy lawfully available to him in respect of the same matter, institute proceedings for relief in the High Court.'
E This provision, in my view, caters for both personal and public interest litigation for at times the two may prove inseparable. A person who sues because he desires to be an independent parliamentary candidate where the system does not so allow necessarily shoulders the burden for the public. It is also important to note F that under this provision action lies where a person's right 'has been, is being or is likely to be contravened.' These are plain and clear words which admit of no controversy. Standing is therefore available under the Constitution even where contravention of a basic right is reasonably apprehended. The case of Thomas G (1), and in as much as it was decided in deference to the much criticized decision in Adesanya (10), has no relevance in the context of our Constitution. In the upshot it is not correct to say, as Mr Mussa suggested, that the petitioner has no locus standi because he cannot show that his rights have already been infringed. In my view he is within the purview of art 30(3) if there is in existence a law the operation of which is likely to contravene his basis rights. H
Standing is additionally conferred by art 26(2), and this states:
   '(2) Every person is entitled, subject to the procedure provided for by the law, to institute proceedings for the protection of the Constitution and legality.' I

Mr Mussa suggested that this provision has to be read with art 30(3) and cannot A be used in lieu of the latter. With respect, I cannot agree. It is a cardinal rule of statutory and constitutional interpretation that every provision stands independent of the other and has a special function to perform unless the contrary intention appears. There is nothing in art 26(2) or elsewhere to link it to art 30(3). The only Blinkage is to art 30(4) and this is one of procedure rather than substance. Clause (4) empowers Parliament to make provision for the procedure relating to institution of proceedings under the article. It has not done so to date but that does not mean that the court is hamstrung. In DPP v Daudi Pete, (15), the Court of Appeal stated C in that ' - until the Parliament legislates under sub-art (4) the enforcement of the Basic Rights, Freedoms and Duties may be effected under the procedure and practice that is available in the High Court in the exercise of its original jurisdiction, depending on the nature of the remedy sought.' I hold art 26(2) to be an D independent and additional source of standing which can be invoked by a litigant depending on the nature of his claim. Under this provision, too, and having regard to the objective thereof - the protection of the Constitution and legality - a E proceeding may be instituted to challenge either the validity of a law which appears to be inconsistent with the Constitution or the legality of decision or action that appears to be contrary to the Constitution or the law of the land. Personal interest is not an ingredient in this provision; it is tailored for the community and falls under the sub-title 'Duties to the Society.' It occurs to me, therefore, that art 26(2) enacts F into our Constitution the doctrine of public interest litigation. It is then not in logic or foreign precedent that we have to go for this doctrine; it is already with us in our own Constitution.
I hasten to emphasize, however, that standing will be granted on the basis of public interest litigation where the petition is bona fide and evidently for the public G good and where the Court can provide an effective remedy. This point is underscored in Peoples Union for Democratic Rights v Minister of Home Affairs (16), where it was stated that 'public interest litigation' meant nothing more than what it stated, namely, it is a litigation in the interest of the public. It is not the type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation H which is instituted with a desire that the court would be able to give effective relief to the whole or a section of the society. It is emphasized in the case that the condition which must be fulfilled before public interest litigation is entertained by the court is that the court should be in a position I

A to give effective and complete relief. If no effective or complete relief can be granted, the court should not entertain public interest litigation.
I gave serious consideration to the matters raised in this petition and the prayers connected therewith and I was persuaded that in quite a number of areas the B public interest overwhelmed what appeared to be a private factor. I therefore allowed arguments to proceed on the issues reviewed above. But in the light of those arguments and what is stated in this paragraph, it may be necessary to reconsider the position of one issue at the appropriate stage later. Meanwhile I will C turn to dispose of the question of cause of action. Cause of action is not a problem in this petition. Mr Mussa seemed to suggest, but I respectfully disagree, that in order for cause of action to arise an event injurious to the rights of the petitioner must have taken place. In my view, where the issue is whether a law is unconstitutional the court looks at the law itself but not at how it works. The D following passage from Chitaley & Rao, The Constitutionof India (1970: 686), citing Prahalad Jena v State (17), is to the point:
E    'In order to determine whether a particular law is repugnant or inconsistent with the Fundamental Rights it is the provisions of the Act that must be looked at and not the manner in which the power under the provision is actually exercised. Inconsistency or repugnancy does not depend upon the exercise of the power by virtue of the provisions in the Act but on the nature of the provisions themselves.' F
I agree and I do not wish to add anything more. In this petition the dispute is over the validity of various laws and this, in my view, constitutes the necessary cause of action. A situation could certainly arise where the cause of action would depend upon actual exercise of power. Such a situation is exemplified in this petition G where the constitutionality of the appointment of Zanzibaris to non-union positions on the Mainland is questioned. In that context it is the appointments themselves that constitute the cause of action, but that has to do with the validity of the action H rather than a law. There now remains the question of justiciability of the claims but since that has more to do with the first of the issues, I will now turn to consider them.
The first issue seeks to determine the immutability of basic rights enacted in the Constitution. This turns on the power of the Parliament to amend the provisions providing for these rights. Specifi- I

cally, what is at issue are the amendments to art 20 and art 39 of the Constitution A vide the Eighth Constitutional Amendment Act, 1992. In its original form art 20 read as follows:
   '20  -  (1) Subject to the laws of the land, every person is entitled to freedom of peaceful assembly, association and public expression, that is to say, the right to assemble freely and B peaceably, to associate with other persons and, in particular, to form or belong to organisations or associations formed for the purposes of protecting or furthering his or any other interests.
   (2) Subject to the relevant laws of the land, a person shall not be compelled to belong to any association. C
In its amended form clause (1) remains unaffected, hence the rights and freedoms spelt out therein remain as before. Our interest in this petition centres on the freedom of association which, under the present multi-party system, includes the D formation of political parties. Clause (2) was also unaffected by the amendment save that it now became clause (4). In between there are new clauses (2) and (3) which it is necessary to set out in full. (The translation from Kiswahili is partly my own and partly adapted). E
   (2) Without prejudice to subsection (1) no political party shall qualify for registration if by its constitution and policy -
   (a)   it aims to advocate or further the interests of -
      (i)   any religious belief of group;
      (ii)   any tribal, ethnic or racial group; F
      (iii)   only a specific area within any part of the United Republic;
   (b)   it advocates the breaking up of the Union constituting, the United Republic;
   (c)   it accepts or advocates the use of force or violence as a means of attaining its political objectives; G
   (d)   it advocates or aims to carry on its political activities exclusively in one part of the United Republic; or
   (e)   it does not allow periodic and democratic elections of its leadership
   (3) Parliament may enact legislation prescribing conditions which will ensure compliance by political parties with the provisions of subsec 2 in relation to the people's freedom and right of association and assembly. H
Pursuant to clause (3), Parliament enacted the Political Parties Act, 1992 providing for the registration of political parties and other matters. Clause (2) above was lifted in its entirety and re- I

A enacted as s 9(2) of the Act. In addition s 8 of the Act provided for a two-stage registration - provisional and full registration. Provisional registration is done upon fulfilment of the conditions prescribed in s 9; full registration is effected after fulfilment of the conditions in s 10 which reads:
B    '10  -  No political party shall be qualified to be fully registered unless  -
   (a)   it has been provisionally registered;
   (b)   it has obtained not less than two hundred members who are qualified to be registered as voters for the purpose of parliamentary elections from each of at least ten Regions C of the United Republic out of which at least two Regions are in Tanzania Zanzibar being one Region each from Zanzibar and Pemba; and
   (c)   it has submitted the names of the national leadership of the party and such leadership draws its members from both Tanzania Zanzibar and Tanzania Mainland; D
   (d)   it has submitted to the Registrar the location of its head office within the United Republic and a postal address to which notices and other communications may be sent.
E It is contended by the petitioner that ss 8, 9 and 10 of the Political Parties Act are unconstitutional in the sense that they impose enough conditions on the formation of political parties and thereby inhibiting enjoyment of the freedom of association enacted in art 20(1). It is further contended that art 20(2) and (3) from which those sections derive are for the same reason unconstitutional. I am therefore invited to strike out art 20(2) and (3) of the Constitution

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