Facts
The petitioner was a human rights campaigner and political activist. In his petition he invited the High Court to consider whether certain amendments to the Constitution were validly made as they appear to infringe the right to participation in national public affairs and freedom of association, both of which are guaranteed by the Constitution. The petitioner also invited the Court to declare a number of statutory provisions unconstitutional for infringing rights and freedoms guaranteed under the Constitution. These were some provisions of the Political Parties Act 1992 which, the petitioner claimed, infringed freedom of association; some provisions of the election laws which made it impossible for independent candidates to contest in B elections; certain provisions of the Newspapers Act 1976 which he claimed were arbitrary and liable to abuse, and an infringement to freedom of expression; and certain provisions of the Police Force Ordinance, Cap 322, and the Political Parties Act 1992 which, he claimed, infringed the constitutional right to peaceful assembly and public expression by requiring a permit to be obtained before one C can hold a public meeting or a rally. The petitioner also sought a declaration whether or not the appointment of people from Zanzibar to offices in Mainland Tanzania dealing with non-union matters was constitutional. Besides opposing the petition on substantive grounds, preliminary objections were raised for the Respondent regarding whether the petitioner had locus standi, whether he had a cause of action, and whether the issues he raised were justiciable.
The petitioner was a human rights campaigner and political activist. In his petition he invited the High Court to consider whether certain amendments to the Constitution were validly made as they appear to infringe the right to participation in national public affairs and freedom of association, both of which are guaranteed by the Constitution. The petitioner also invited the Court to declare a number of statutory provisions unconstitutional for infringing rights and freedoms guaranteed under the Constitution. These were some provisions of the Political Parties Act 1992 which, the petitioner claimed, infringed freedom of association; some provisions of the election laws which made it impossible for independent candidates to contest in B elections; certain provisions of the Newspapers Act 1976 which he claimed were arbitrary and liable to abuse, and an infringement to freedom of expression; and certain provisions of the Police Force Ordinance, Cap 322, and the Political Parties Act 1992 which, he claimed, infringed the constitutional right to peaceful assembly and public expression by requiring a permit to be obtained before one C can hold a public meeting or a rally. The petitioner also sought a declaration whether or not the appointment of people from Zanzibar to offices in Mainland Tanzania dealing with non-union matters was constitutional. Besides opposing the petition on substantive grounds, preliminary objections were raised for the Respondent regarding whether the petitioner had locus standi, whether he had a cause of action, and whether the issues he raised were justiciable.
Held:
(i) The orthodox common law position regarding locus standi no longer holds good in the context of constitutional litigation in that the notion of sufficient personal interest over and above the interest of the general public has more to do with private law rather than public law; in matters of public interest litigation the Court will not deny standing to a genuine and bona fide litigant even where he has no personal interest in the matter.
(ii) In the circumstances of Tanzania, if a public spirited individual springs up in search of the Court's intervention against legislation or actions that pervert the Constitution, the Court, as guardian and trustee of the Constitution, must grant him standing.
(iii) The principles of public interest litigation are expressed in the Constitution of Tanzania by vesting in every person the capacity of an individual by virtue of articles 12 to 24 of the Constitution, and the capacity of a member of the community by virtue of articles 25 to 28 of the Constitution, thereby equipping the individual with double standing to sue.
(iv) The petitioner in this case has locus standi by virtue of article 30(3) of the
Constitution which entitles a person who alleges that a basic right is being or is likely to be contravened in relation to him to institute proceedings for relief in the High Court, as well as by virtue of article 26(2) of the Constitution which entitles every person to institute proceedings for the protection of the Constitution and of legality.
(v) Article 26(2) of the Constitution is an independent and additional source of standing according to which personal interest is not necessary in order to institute proceedings the article is tailored for the community and it enacts into the Constitution of Tanzania the doctrine of public interest litigation;
(vi) In this petition the dispute is over the validity of various laws and that A suffices to constitute a cause of action; it is not always necessary for powers under those laws to be exercised first so as to give rise to a cause of action;
(vii) 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 B recognition and the intention that they should be enforceable in a court of law, and an intention that those rights should not be arbitrarily restricted by the state
(viii) Parliament is given very wide powers to amend constitutional provisions, including those providing for basic human 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 Parliament C to amend is only the ethic of human rights but not the letter by which those rights are expressed;
(ix) The constitutional amendments which brought article 20(2) and (3) of the Constitution laying conditions for registration of political parties, and those in article 39 of the Constitution relating to qualifications to contest in presidential, parliamentary and local government elections, were all validly enacted; the amendments do not abrogate, beyond the limits set by article 30(2) of the Constitution, freedom of association and the right to participate in national public affairs which are guaranteed under the Constitution.
(x) As the issue of the constitutionality of certain provisions of the Political Parties Act 1992 is also substantially an issue in an appeal already pending before the Court of Appeal, in terms of s 8 of the Civil Procedure Code 1966, decision on that issue is stayed until the outcome of the said appeal.
(xi) The constitutionality of a statutory provision is not found in what could happen in its operation but in what it actually provides for; the mere possibility of a statutory provision being abused in actual operation will not make it invalid.
(v) Article 26(2) of the Constitution is an independent and additional source of standing according to which personal interest is not necessary in order to institute proceedings the article is tailored for the community and it enacts into the Constitution of Tanzania the doctrine of public interest litigation;
(vi) In this petition the dispute is over the validity of various laws and that A suffices to constitute a cause of action; it is not always necessary for powers under those laws to be exercised first so as to give rise to a cause of action;
(vii) 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 B recognition and the intention that they should be enforceable in a court of law, and an intention that those rights should not be arbitrarily restricted by the state
(viii) Parliament is given very wide powers to amend constitutional provisions, including those providing for basic human 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 Parliament C to amend is only the ethic of human rights but not the letter by which those rights are expressed;
(ix) The constitutional amendments which brought article 20(2) and (3) of the Constitution laying conditions for registration of political parties, and those in article 39 of the Constitution relating to qualifications to contest in presidential, parliamentary and local government elections, were all validly enacted; the amendments do not abrogate, beyond the limits set by article 30(2) of the Constitution, freedom of association and the right to participate in national public affairs which are guaranteed under the Constitution.
(x) As the issue of the constitutionality of certain provisions of the Political Parties Act 1992 is also substantially an issue in an appeal already pending before the Court of Appeal, in terms of s 8 of the Civil Procedure Code 1966, decision on that issue is stayed until the outcome of the said appeal.
(xi) The constitutionality of a statutory provision is not found in what could happen in its operation but in what it actually provides for; the mere possibility of a statutory provision being abused in actual operation will not make it invalid.
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