THE High Court of Tanzania Main Registry, has dismissed the constitutional petition lodged by six people, who lost their Tanzanian citizenship after acquiring nationality of other foreign countries that is United States of America, United Kingdom and Canada.
Judge Hamidu Mwanga ruled against Shaabani Fund, Patrick Nhigula, Restituta Kalemera, Nkole Muya, Emmanuel C. Emmanuel and Bashir Kassam, the Petitioners, after upholding two points of preliminary objections raised by the Attorney General (AG).
In their petition, the Petitioners challenged the constitutionality of provisions of sections 7(1) and (2) (c) and (4) (a) and 7(6) of the Tanzania Citizenship Act and sections 23(l)(h) and (1) and 27(2)(a) of the Immigration Act, which prohibits duo citizenship.
However, State Attorneys from the Solicitor General, appearing for the AG, objected to the hearing of petition, because the affidavits filed to support the same are bad in law for contravening section 8 of the Notaries Public and Commissioner for Oaths Act and the Basic Rights and Duties Enforcement Act.
In his ruling delivered in Dar es Salaam recently, the judge noted that section 4(1)(2) of Basic Rights and Duties Enforcement Act prescribe that a person is eligible to apply to the High Court for redress on any allegations of breach of Articles 12 to 29 of the Constitution, if that person has been affected personally.
However, having gone through the affidavits of the petitioners, he observed their constitutional rights under articles 5(1) and (2) (a); articles 13(1), (2), (4) and (6) (a); articles 17(1) and article 21(1) and (2) of the Constitution have been violated by existing provisions under the two Acts.
"In essence, the applicable procedures pursuant to article 26(2) of the Constitution is under section 4(1) of the Basic Rights and Duties Enforcement Act, which applies only for rights under Article 12 to 29 of the Constitution. Therefore, Article 5(1) and (2) (a) was pleaded out of context," the judge said.
He pointed out that the Petitioners had the rights to take legal action to ensure protection of the Constitution only on matters falling under section 12 to 29 of the Constitution.
The judge said that it was, undoubted that, Article 5(1) and (2) (a) of the Constitution, which is one of the main contentions in the petition, does not fall under article 12 to 29 to seize the Court with competence to try the same.
During hearing of the points of objections, the State Attorneys had also challenged the affidavits filed by the Petitioners, questioning exact dates on which they appeared virtually before the Commissioner for Oath, as the dates on which oaths were taken virtually differ considerably from each other.
Whereas the Commissioner signed the petition of Shaban Fundi at Dar es salaam on November 29, 2022, himself indicated that he was affirmed and signed the jurat virtually at Dar es salaam on November 29, 2022, whilst the same affidavit was verified in the USA on November 23, 2022.
The Commissioner signed the jurat of Patrick Nhigula at Dar es salaam on December 8, 2022, while indicated that he was sworn and signed the jurat virtually at Dar es salaam on December 7, 2022 and that same affidavit was verified in the United States of America on December 7, 2022.
On Restituta Kalemera, the Commissioner signed the jurat on November 29, 2022, whereas she was sworn and signed virtually on the same date, and that the same affidavit was verified in the United Kingdom on November 23, 2022.
The Commissioner signed the jurat of Nkole Muya on November 29, 2022, while indicated that he was sworn and signed virtually on the same date, and the same affidavit was verified in the United Kingdom on November 23, 2022.
For Emanuel C. Emanuel, the Commissioner signed the jurat on November 29, 2022, while indicated that he was sworn and signed virtually on the same date and the same affidavit was verified in the United States of America on November 22, 2022.
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The Commissioner signed the jurat of Bashir Kassam on November 1, 2022, while indicated that he was sworn and signed virtually on the same date and the same affidavit was verified in Canada on November 22, 2022.
In his ruling, the judge held that though an oath may be taken virtually or remotely, the process should be to the satisfaction of the court that facts pleaded come from the deponent and not otherwise and, that deponent appeared before the Commissioner for Oaths, which is a condition set out under the Act.
Before the petitioners acquired citizenship of the countries in which they are now residents, they were the citizens of the United Republic of Tanzania.
Their argument was to the fact that, having obtained citizenship of their respective countries of residence, they have, by virtue of the Tanzania laws, automatically lost their Tanzanian citizenship. They claimed that such automatic loss denied them of their rights that are guaranteed in the Constitution.
