Tanzania: Court Strikes Out Constitutional Review Case

THE move by public-spirited citizen, Dr Muzzammil Kalokola, to block the constitutional review process aimed at attaining a new Constitution for the United Republic of Tanzania has finally come to end.

This follows a decision of the Court of Appeal to "strike out with costs" the application for revision by Dr Kalokola, as applicant, which he had lodged to challenge the High Court's decision on the matter.

Justices Stella Mugasha, Gerald Ndika and Mwanaisha Kwariko reached into such decision after sustaining a ground of objection raised by the respondents that the application was time barred.

The respondents in the application were the Minister for Constitutional and Legal Affairs, the Constitutional Review Commission and the Attorney General, who were represented by Principal State Attorney Alicia Mbuya and State Attorney Pauline Mdendemi.

In their ruling delivered in Dar es Salaam recently, the justices of the appeals court noted that impugned ruling by the High Court, rejecting the applicant's application for prerogative orders or certiorari, mandamus and prohibition against the respondents, was delivered on July 21, 2014.

They observed that in terms of Rule 65 (4) of the Court of Appeal Rules, the application for revision before the appeals court ought to have been filed within 60 days thereafter.

Reckoning the 60 days limitation time from the date of delivery of the ruling, such period expired on September 21, 2014. "But this matter (application for revision) was lodged on October 22, 2014, which was the 92nd day after the decision (of the High Court) was handed down," the justices said.

In resisting the preliminary objection, the applicant had contended that in computing the 60-day limitation period, the entire period necessary for the preparation and delivery of the copy of proceedings by the High Court Registry until October 17, 2014 must be excluded.

He relied under Rule 2 of the Court of Appeal Rules and sections 7, 18, 19 and 21 of the Law of Limitation Act, whose effect was excluding the entire period necessary for the preparation and delivery of the record of proceedings from the reckoning of the 60 days prescribed limitation period.

However, in their ruling, the justices of the appeals court, the highest temple of justice in the country, agreed with the submissions by Ms Mbuya that the provisions under the Law of Limitation Act cited by the applicant were inapplicable and his "contention was based upon a clear misconception of the law."

They pointed out that although the Limitation Act contains provisions mandating exclusion of certain periods from the computation of the prescribed limitation, section 43 (b) of that law explicitly excludes the application of that law to applications and appeals to the Court of Appeal.

According to the justices, the time limitations and their computations for the purpose of the proceedings before the Court were stipulated and governed by the Court of Appeal Rules.

"Looking at the entire test of the Rules, there is no provision for exclusion of the period for preparation and delivery of proceedings by the High Court for the purpose of instituting a revision in the Court," they said.

The justices pointed out further that once the prescribed limitation period has expired, a party intending to seek revision could only pursue the matter by applying, at first, for extension of time under Rule 10 of the Rules.

In his frantic effort to save the application in question, they observed, Dr Kalokola had urged them to apply Rule 2 of the Rules, which enjoins the Court to have due regard to the need to achieve substantive justice in every single case.

"Certainly, this Court will not worship at alter of legal technicalities; it will endeavour to attain substantive justice in every case. Nonetheless, in the instant case, the Court cannot ignore the trashing of the mandatory time limitation prescribed by Rule 65 (4) of the Rules," the justices ruled.

Before the High Court, Dr Kalokola had applied for the prerogative orders against the respondents, alleging numerous violations of the Constitution of the United Republic of Tanzania of 1977. The alleged desecrations mostly related to or were connected with the constitutional review.

Such review was being carried out under the Constitutional Review Act, as it turned out, his quest did not come to fruition, as it was struck out with costs at the pre-hearing stage, the High Court having sustained the respondents' preliminary objection.

The objection had the effect that the petition filed was fatally defective for non-citation of proper enabling provisions of the law.

Having aggrieved by the decision, the applicant lodged the application for revision to the Court of Appeal where he was also greeted by the objection from respondents.

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