THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
(MAIN REGISTRY) * '
?*-?" $f (CORAM: K1MARO, J: MASSATl, J AND M1HAYO, J)
MISCELLANEOUS CIVIL CAUSE NO.77 OF 2005
IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF
IN THE MATTER OF A PETITION TO ENFORCE A CONSTITUTIONAL
BASIC RIGHT UNDER THE BASIC
RIGHTS AND DUTIES ENFORCEMENT ACT, 1994 ^ ?
IN THE MATTER OF THE ELECTIONS ACT, NO.l OF 1995
LEGAL AND HUMAN RIGHTS CENTRE (LHRC) - 1ST PETITIONER
- 2ND PETITIONER
LAWYERS' ENVIRONMENTAL ACTION TEAM (LEAT
NATIONAL ORGANIZATION FOR LEGAL ASSISTANCE (NOLA)
VERSUS THE ATTORNEY GENERAL
JUDGMENT OF MASSATL J:
1 have read the judgment of Kimaro J in draft. 1 entirely agree with her opinion and conclusion. 1 would however like to add the following:
here. .,..*? —?
3 ... :-.t
objection, I would begin by borrowing the definition of the term "cause of
action " which the Court of Appeal in JOHN M. BYOMBAL1RWA VS
AGENCY MARITIME INTERNATIONAL (TANZANIA) LTD 
TLR. 1 put as - &t
"essentially facts which it is necessary for the Plaintiff to prove before he can succeed in the suit. "
Chapter or in any law concerning his rights or duty owed to
him, has been, is being, or is likely to be violated by any person
anywhere in the United Republic may institute proceedings for
redress in the High Court." y ;,
right or duty owed to him has been, or is likely to be violated, is sufficient to
disclose a cause of action in cases of this nature. These are allegations,
necessary for the petitioners to prove before they can succeed in their
petition. And that the petitioners have done. "*?&?
important point of law is to be determined. There, Sheridan J was
considering 0. VII rule 11 of the Uganda Civil Procedure Rules, which is in
pari material with the Tanzanian Civil Procedure Code 1966 (O. VII rule 11)
and quoted with approval the observation of MAULTON J, in DYSON VS
ATTORNEY GENERAL 4 [191 U K.B. 410; that: , •
"'It is not in accordance with the practice of the Court, nor is it desirable, to refuse to allow cases raising points which involve serious arguments to go to trial so that the parties may have them decided in the ordinary way at the trial and may enjoy the right of appeal following from their being so decided. "
(3) of the Constitution. According to case law, cited by both Counsel for the petitioners and the Respondent, in order to be saved, a legislation must be shown to have met the proportionality test; which is that, it is reasonable, not arbitrary, and necessary for societal good. In the present case the petitioners have, 1 think, successfully shown that the "takrima" provisions are unnecessary, unreasonable, and discriminatory. The Respondent on the other hand has argued that the "takrma" provisions were necessary as an exception to the general rule of treating. Ironically to me, the learned Principal State Attorney, has referred this Court to several decisions of the Court of Appeal such as LUTTER NELSON VS THE HON ATTORNEY GENERAL AND IBRAHIM MSABAHA Civil Appeal No. 24 of 1999; (unreported); PETER MSEKALILE VS LEONARD DEREFA (Civil Appeal No. 32 of 1997) (unreported) and GILLIARD JOSEPH MLASEKO and 2 OTHERS VS CORONA FAIDA BUSONGO AND ANOTHER (CA) Civil Appeal No. 57 of 1996 (unreported) as justification for the enactment of the "takrima" provisions. With respect, while the court would not question the wisdom of the parliament in enacting any law, it is my considered view that the fact that court could have reached such decisions without the aid of the new provisions is sufficient evidence that the new provisions are not necessary as courts already had such powers. On that score alone the "takrima" provisions do not meet the proportionality test. But, further according to the learned state attorney the said sections were enacted so as to serve situations where election candidates would incur expenses and costs in furthering election campaigns but not where they are meant for inducing or influencing voters, which is treating. The problem with the Respondent's reasoning is that, attractive as it may sound, there is no similar provision for checking in the field which of the offerings of a
Another principle of Constitutional Interpretation is that in interpreting a legislation vis a vis the constitution, both the purpose and effect of the legislation must be given effect to. (See ATTORNEY GENERAL VS MOMODON JOBE [1984, AC 689]. The petitioners have argued that the "takrima" provisions infringe Article 13 (2) and also Article 21 (1) and (2) of the Constitution which guarantee, the right to equality before the law, and the rights of the citizens to participate in the governance of their country by fair and free elections. The Respondent, on the other hand, submit that the "takrima " provisions treat all election candidates from political parties with equal status and to that extent are not discriminator}'. They insist that those provisions were only meant to cater for genuine expenses. Although the Respondent does not dispute that Article 21 (1) of the Constitution guarantees the rights of the citizens to participate in public affairs, I can find nothing in his submission, on the effect of the "takrima" provisions on Article 21 (1). Whereas the Petitionejyhave contended that since the "takrima " is offered to the electorate before voting they are likely to influence the voters one way or the other, and therefore in such a situation there cannot be free and fair elections.