Rule of Law vs. Rulers of Law. Justice Barnabas Albert Samatta's Road To Justice: Justice Barnabas Albert Samatta's Road To Justice

Judicial Protection of Democratic Values: The Judgment of the Court of Appeal on Independent Candidates

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 SamattaatRuahaUniversityCollege,Iringa,onNovember25,2010 17th June, 2010, will always occupy a special 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 JJA) 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 this 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 JUDMENT 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 234 RULE OF LAW VERSUS RULERS OF LAW 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 a substantive condition taking away the right to participate for citizens who do not belong to political parties. JUDICIAL PROTECTION OF DEMOCRATIC VALUES 235 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...