Tanzania Daily News (Dar es Salaam)

7 June 2014

Tanzania: Court Throws Out Constitutional Petition Against Premier Pinda

THE High Court on Friday rejected a constitutional petition lodged by the Legal and Human Rights Centre (LHRC) and Tanganyika Law Society (TLS) challenging statements made in the National Assembly by the Prime Minister, Mizengo Pinda, allowing the police to beat up violent demonstrators.

A panel led by Principal Judge Fakih Jundu and comprising Judges Augustine Mwarija and Dr Fauz Twaib struck out the petition, ruling that the two petitioners, which are corporate bodies, had no locus standi to institute the petition.

The judges noted that according to the nature of the issues complained about in the petition, individual persons who would have been directly affected by the remarks given by the prime minister were the proper persons to have instituted such a case and not the petitioners.

"These two jurist persons cannot be beaten as proclaimed by the prime minister. Thus they have no locus to institute the petition. Under such circumstances we strike out the petition," they ruled after considering some grounds of objections presented by the Attorney General (AG).

One of the grounds of objection advanced by the AG, through a team comprising the Deputy Attorney General, George Massaju, and three other state attorneys, was that the petitioners had no locus standi to intervene in parliamentary business made in the House, thus their prayers were untenable on account of being contrary to the basic principles of the law.

Other grounds were that the petition was fatally defective for contravening the provisions under the Civil Procedure Code and the Basic Rights and Duties Enforcement Act, and that it was vague, embarrassing, frivolous and vexatious, besides being lodged in total abuse of the legal process.

The AG had further alleged that the constitutional petition was bad in law for contravening some provisions of the constitution of the United Republic of Tanzania and the Parliamentary Immunities, Powers and Privileges Act.

However, before reaching the conclusion, the judges agreed that under the law, members of Parliament enjoyed some immunity when conducting business in the National Assembly, but went on to observe that the immunity was not absolute.

They said some words uttered in the House could be challenged by way of either sending a complaint to the Speaker or instituting one in a court of law. In the case, the two organizations were challenging as unconstitutional the premier's statements, directives and orders that law-enforcers should use force against civilians. Premier Pinda and the Attorney General were the respondents in the matter.

It was alleged that on June 20, last year, during the Premier's Question Time in the National Assembly, Pinda openly and unconstitutionally stated, gave a directive and ordered law-enforcement officers to beat up anyone defying their legal orders.

The petitioners alleged that in the administration of criminal law and with respect to public tranquility, statements or orders given by high-ranking public leaders such as Prime Minister Pinda were deemed enforceable by law-enforcement agencies such as the police.

Advocates for the petitioners, Mpale Mpoki, Fulgence Masawe, Peter Kibatala, Harold Sungusia and Jeremiah Mtobesya had requested the court to overrule the objections raised by the AG because the grounds advanced lacked merit. Mpoki, on behalf of his colleagues, had argued that the constitution was based on three principles of separation of powers, rule of law and constitutional supremacy.

"The three state organs - the Judiciary, Parliament and Executive - should notinterfere in each other's sphere in their day-to-day functions," he argued. The counsel had submitted that the principle should be exercised in enforcement of checks and balances, adding that the powers of the court to exercise this principle against the executive and Parliament could be found in both statutory and common law.

"By virtual of common law, the High Court of Tanzania can question an act of either the National Assembly or the executive if those acts are given in violation of principles of natural justice or beyond the scope of jurisdiction of the two organs," he had submitted.

He told the panel that on the other hand, the High Court could exercise its functions statutorily by its powers to put the acts of the executive or Parliament under scrutiny under the Basic Right and Duties Enforcement Act. Mpoki had further submitted that the court could do so where, in particular, there were violations or likely violations of fundamental rights conferred under Articles 123 to 129 of the constitution.

Under such circumstances, he said, any person was given a locus to seek the court's redress. "Under Section 13 (3) of the Act, the powers of the High Court to grant relief are so wide that the court has the powers to make all such orders as shall be necessary and appropriate to secure the enjoyment of basic rights, freedoms and duties conferred under Articles 123 to 129," he said.

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