1.
0 INTRODUCTION
1.1 CASE OF ATTORNEY GENERAL V REVEREND CHRISTOPHER MTIKILA CIVIL
APPEAL NO. 45 OF 2009.
1.2 FACTS OF THE CASE
This case is traced back in 1993 when Rev. Christopher Mtikila filed a case 1 in the High
Court challenging, among other matters, the prohibition of independent candidates for
presidential, parliamentary and civic elections which was introduced by the Eighth
Constitutional Amendment Act of 1992. That Act amended Article 39 of the Constitution 2 on
qualifications for a person to be nominated in Presidential election inserting paragraph (a)
and (c) which state that;
a) is a citizen of the United Republic by birth;
c) is a member of and sponsored by a political party.
The High Court of Tanzania decided on Mtikila’s basis and declared entire amendments
unconstitutional, however it refuses to declare independent candidates to be allowed.
Aggrieved with the decision the Attorney General issued an appeal to the Court of Appeal of
Tanzania.
In that appeal the Court of appeal in full bench under Ramadhani CJ. with the aid from
friends of the Courts came to determine on;
whether the amendments of the Constitution would be declared unconstitutional by the court
and
Whether Independent candidate should be allowed to contest for political posts.
Furthermore the Court of Appeal decided that the Constitution is solemn book enacted by a
complex procedures by the Parliament than any other laws and its placed as single entity,
mere declaration of the Articles of Constitution to be unconstitutional or to strike it down by
the Court is not legally acceptable. If there is a contradictions between articles of the
Constitution it better the principle of Harmonization to be used or Legislative amendments to
be done by Parliament not by Court.
1
Misc. Civil Cause No. 5 of 1993,
2
[CAP 2 R.E 2008]
2.0 MAINBODY
2.1 RELEVANCE OF THE CASE TO THE ADMINISTRATIVE LAW
The case of Attorney General v Reverend Christopher Mtikila 3 relates to administrative law
as following;
2.1.1 The Principle of Separation of Power.
The principle of separation of power and administrative law works together to ensure that
Government actions are Lawful, fair and accountable. This relationship is crucial for
maintaining a balanced and effective Governance system 4. In this case the the court
emphasized the Principle of separation of power under the principle of Judiciary restraint.
Judiciary restraint is a principle where courts defer to the decisions of the Legislative and
executive branches, avoiding making policy decision of interfering with functions of other
two pillars the principle emphasized limited role in judiciary matter. This principle was
determined when the court of Appeal upheld that;
“Tanzanian courts exercise calculated restraint to avoid meddling in constituencies of the
other two pillars of the State”.
The court adopted a cautious and restrained approach by deferring the decision on the
eligibility of independent candidates to parliament. The aspect was taken to respect the
separation of power in administrative functions of the Government to ensure that policy
decisions are made by the elected representative of the people.
2.1.2 Parliamentary suppremacy.
As we have pointed out in the facts of the Case, among other things in question in this case
was the matter of independent candidates for political posts, it was an idea that individual to
run for political public office without being affiliated with political parties.
In this case the Court recognised the exclusive role of Parliament in making Laws and that it
should never intervened. This was determined on the aspect of recognition of Independent
candidate, the court of appeal ruled that the issue was political question best left to parliament
3
Civil Appeal No. 45 of 2009
4
Gervas Lusato Kasiga and 2 others V. National Housing Corporation and Another (2019)TZHC 199
to decide through legislative process and dictate the structure of electoral system. Such
standing was determined in the case when the court decided that;
After saying all that it is obvious that we cannot legally say that independent candidates are
allowed. That is the province of Parliament to amend the Constitution according to Art 98(1)
of the Constitution5.
These decisions were communicates on the Supremacy of the Parliament and its exclusive
role in making Laws.
2.2.3 Protection of fundamental rights and Rule of Law.
Tanzania signed variety of international convections on protection of Fundamental rights of
the People, among them is the African Charter on Human and Peoples Rights 6 and ratified it
on 18 February 1984. In this case the Court of Appeal emphasized on recognition of
international convections, which Tanzania has signed on human rights and rule of law to be
used in interpretation of Laws relating to Human rights and good governance. so as to
enhance responsibilities and protection of fundamental rights. this was determined when the
Court of Appeal upheld that;
“Since our Bill of rights and Duties was introduced into the Constitution under the Fifth
Amendment in February 1985, that is, slightly over three years after Tanzania signed the
Charter7, and about a year after ratification, account must be taken of that Charter in
interpreting our Bill of Rights and Duties.”
The court emphasized the importance of political stability and the role of political parties in
organizing and structuring the electoral process, such decision maintained by Judge
Ramadhan CJ. (as then he was) when he stated that;
“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”.
The Court of Appeal strictly upheld on the Constitutionality supremacy as the dominant law
to all other laws and that Articles of the Constitution which seemed to contradict each other
5
[CAP 2 R.E 2008]
6
Of 31 May 1982
7
African Charter on Human and Peoples Rights
the principle of harmonization should be placed. on this aspect the Court of Appeal while
citing a case of Julius I.F. Ndyanabo v. A. G8, agreed that;
“This Court said so in There is, therefore, a need to harmonize the various articles of the
constitution. This means that an article of a constitution cannot be struck out or declared
unconstitutional”
We need hardly to say that our Constitution is a serious and solemn document, invoking it
and knocking down laws or portions of them should be reserved for appropriate and really
momentous occasions9
2.2.4 Judiciary Review
The Courts have played a significant role in safeguard rights and ensuring that the powers of
government authorities are exercised within the bound of the Law. The judiciary has power to
review administrative functions of other two pillars this judiciary oversight ensures that
administrative actions and functions are Lawful, reasonable and comply with the principles of
natural justice and to check the actions of other branches of Government. On a matter of
judiciary review the court of appeal decided that;
“We accept the proposition that although the Parliament has powers to enact legislation,
such powers are not limitless10
To means that legislative powers of the parliament should be checked. The Court of Appeal
emphasized on power of Judiciary review when it was declared that;
“The Court will not throw in the towel but will keep on drawing the attention of the Powers
that be. That is our role”.
3.0 CONCLUSION
By adhering to the principle of judicial restraint the court acknowledged the separation of
powers and respected the role of Legislature in shaping electoral laws which is crucial in
maintaining a balanced and functional system of governance.
8
Civil Appeal No. 64 of 2001.
9
Attorney General v. W. K. Butambala, [1993] T. L. R. 46 at p. 51
10
Attorney General V Reverend Christopher Mtikila Civil Appeal No. 45 Of 2009.