Tanzania: High Court Dismisses Activist Petition

THE High Court has dismissed with costs the constitutional petition lodged by the National Coordinator for Tanzania Human Rights Defenders Coalition (THRDC), Mr Onesmo Olengurumwa, challenging the Local Government Elections Act, which prohibits persons below 21 years to vie for councillorship.

Judge Yose Mlyambina ruled against the human right activist, as petitioner, after upholding a legal objection lodged by the respondents into the matter with effect that the submissions in support of the petition were filed out of time prescribed by the court against the law.

"Having considered the submissions of both sides and the authorities, the Court is satisfied that the objection has merits. Accordingly, the petition is dismissed with costs for want of prosecution. It is so ordered," the judge declared.

The respondents into the petition, who were represented by Senior State Attorney Abubakary Mrisha and State Attorney Stanley Kalokola from the Solicitor General's Office, were the Minister of State in the President's Office Regional Administration and Local Government and the Attorney General (AG) During hearing of the preliminary objection, counsel for the petitioner, Mr John Seka had invited the court to invoke the recently introduced overriding objective principle because the matter involved was a Constitutional litigation.

However, the judge ruled that if the call made by the petitioner was accepted it would create a very bad precedent.

When the petition was called for necessary orders on February 24, 2020, by consent of the parties, it was agreed the petition be disposed of by way of written submissions.

Pursuant to Rule 13 of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014 G.N No. 304 of 2014 ( BRADEA Rules), the Petitioner was ordered to file his written submissions by March 2, 2020, while respondents were ordered to file reply submissions by March 9, 2020.

The petition was to be mentioned on March 18, 2020 for necessary orders. It was unfortunate the petitioner filed his submissions on March 3, 2020 without obtaining leave of the Court.

It was at that point in time when the respondents in reply, raised a legal objection in question.

When the petition came for necessary orders on March 18, 2020, Mr Seka prayed for extension of time so as to deem the Petitioner's filed submissions to have been filed within time.

He cited human error occasioned by the fact that one of their officers Kadete Kadete, an intern at their office made an error of submitting the document at Dar es Salaam District Registry where he was told that it was not the proper registry and when he went to the proper registry, it was past the office time.

Counsel Seka, however, conceded that failure of their personnel to file on time at the proper registry could not be a good cause, but in view of attaining substantive justice, he prayed the extension sought be granted.

In response, Senior State Attorney, Abubakary Mrisha submitted that the Petitioner's submissions were merely an afterthought.

In view of Mr Mrisha, the Petitioner was supposed to file a proper application. He submitted, therefore, that there was a clear noncompliance with the order of the Court.

The judge, in the ruling, pointed out that the Petitioner, according to the schedule was to file on March 2, 2020.

Instead of complying with such order, he filed on March 3, 2020, meaning that when the petition was for hearing on March 2, 2020, the Petitioner never appeared without good cause.

"Even if the Court is to brook its eyes for the single day delay the application before the Court is incompetent on reasons (that) the application has been preferred after the preliminary objection was raised (and) the applicant has not advanced sufficient reasons to account for the delay," the judge said.

By way of originating summons, the Petitioner lodged the petition under Articles 26 (2), 30 (3) and 30 (5) of the Constitution of the United Republic of Tanzania, read together with Sections 4, 5, 6, 13 (1), 13 (2) and 13 (3) of BRADEA and Rule 4 of the BRADEA Rules, seeking for some determinations.

He wanted the court to determine that the Constitution of the United Republic of Tanzania, prohibits discrimination on the basis of age and that prohibition has not provided any compliance exemptions and thus any restrictive criteria is against the dear provision of the constitution.

That Section 39 (2) (b) of the Act and its Regulation 14 (b) of G.N No. 371, Regulation 15 (b) of G.N. No. 372, Regulation 15 (b) of G.N No. 373 and Regulation 15 (b) of G.N. No. 374, all of 2019 violate Articles 12 (2), 13 (2), 13 (4), 21 (1) and 29 (1) of the Constitution on ground of discrimination on basis of age.

He sought that the text of the provisions lacks any objective and reasonable criteria to justify the discrimination on basis of age and restriction imposed by such provisions is unnecessary, is not needed and will deny rights to a larger group of people especially those between the age of 18 and 21 years.

The petitioner also stated that restriction imposed by the provisions on basis of age has not taken account of local circumstances pertaining in Tanzania whereas people of age between 18 and 21 years are considered adults and have been involved throughout in the decision making processes.

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