IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM MAIN REGISTRY)
AT DAR ES SALAAM
MISCELLANEOUS CIVIL CAUSE NO: ............. OF 2015
IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC
OF TANZANIA 1977 - AS AMENDED FROM TIME TO TIME [CAP. 2 R.E. 2002]
AND
IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT
[CAP. 3 R.E. 2002]
AND
IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY
THE PROVISIONS OF THE REFERENDUM ACT. NO. 11 OF 2013
BETWEEN
RASHID SALUM ADIY......................................... PETITIONER
VERSUS
MINISTER OF CONSTITUTION AND LEGAL AFFAIRS....1ST RESPONDENT
THE HON. ATTORNEY GENERAL................. ........ ...........2ND RESPONDENT
ORIGINATING SUMMONS
Pursuant to Articles 13(1),(2),(3),(4) and (5); 21(2); 26; 29; and 30(3),(4) and (5); of the Constitution of the United Republic of Tanzania 1977 (as amended from time to time); Sections 4, 5 and 6 of the Basic Rights and Duties Enforcement Act, Cap. 3 R.E. 2002; Rule 4 of the Basic Rights and Duties (Practice and Procedure) Rules, GN.304.0f 2014;
LET THE PARTIES concerned, Rashid Salum Adiy in the care of LHRC, Legal Aid Clinic Kinondoni, Isere Street, Justice Mwalusanya House, P.O. Box 79633 Dar es Salaam - the Petitioner and Minister of Constitution and Legal Affairs and the Hon. Attorney General of The United Republic of Tanzania, P.O. Box 9050 Dar es Salaam - the Respondents appear before the Honorable Justices of the High Court of Tanzania…….................................…. sitting in Chambers on the ………of……………… 2015 at 9.00 O’clock in the forenoon or soon thereafter as may be convenient to the said Honorable Justices of the High Court of Tanzania when Counsels for the Applicant shall be heard upon an application for the following orders, to wit:-
(a) Declaration that the Provisions of Section 34(2) of the Referendum Act, No. 11 of 2013 are unconstitutional for violating the right to equality before the law;
(b) Declaration that the Provisions of Section 34(2) of the Referendum Act, No. 11 of 2013 are unconstitutional for being discriminatory;
(c) Declaration that the Provisions of Section 34(2) of the Referendum Act, No. 11 of 2013 are unconstitutional for violating the right of citizens hailing from Zanzibar to participate in governance of the United Republic of Tanzania, including equal participation in fair and free elections;
(d) Declaration that the Provisions of Section 34(2) of the Referendum Act, No. 11 of 2013 are null and void for being unconstitutional to the extent above stated;
(e) Declaration that the Provisions of Section 34(2) of the Referendum Act, No.11 of 2013 are bad in law and contrary to principles of good governance and rule of law;
(f) A declaration that on a true and proper construction of Section 34(2)(b) the following persons shall have the rights and are eligible to vote for and their votes shall be considered as voters for Zanzibar for purposes of section 34(i)(b) of the Referendum Act:-
i. A Tanzanian hailing from Tanzania Mainland who resides in Tanzania Mainland registered by the National Electoral Commission.
ii. A Tanzanian hailing from Tanzania Mainland who resides in Zanzibar Registered by the National Electoral Commission.
iii. A Tanzanian hailing from Tanzania Zanzibar who resides in Tanzania Mainland registered by the National Electoral Commission.
iv. A Tanzanian hailing from Tanzania Zanzibar who resides in Zanzibar registered by the National Electoral Commission.
v. A Tanzanian hailing from Tanzania Zanzibar who resides in Zanzibar registered by the Zanzibar Electoral Commission.
(g) A declaration that Section 34(2)(b) is unconstitutional on account of permitting the following to vote for and determine matters relating to affairs and interests of Zanzibar while they don’t have any legitimate interest on Zanzibar:-
i. A Tanzanian hailing from Tanzania Mainland who resides in Tanzania Mainland registered by the National Electoral Commission.
ii. A Tanzanian hailing from Tanzania Mainland who resides in Zanzibar Registered by the National Electoral Commission.
iii. A Tanzanian hailing from Tanzania Zanzibar who resides in Tanzania Mainland registered by the National Electoral Commission.
(h) A declaration that Section 34(2)(b) is discriminatory to the wishes and aspirations of the Zanzibar to determine their nations aspirations on account of allowing and permitting voters from Tanzania Mainland who are outnumbering voters from Zanzibar to determine the affairs relating to Zanzibar.
(i) A declaration that the true intention of the Parliament in enacting a separate procedure for voting in Zanzibar was to let the people of Zanzibar residing in Zanzibar to determine their fate despite being a minority in Tanzania in comparison with Tanzania Mainland.
(j) Provisional Measures restraining the National Electoral Commission from conducting the Referendum under the Referendum Act, no.11 of 2013 until when the Act shall be amended pursuant to the orders of this Court.
(k) Any other relief(s) and/or order(s) the court may deem just and equitable to be granted.
That this Honorable Court be pleased to hear the Petition and grant Prayers thereto:-
GROUNDS UPON WHICH READRESS IS SOUGHT
1. That the Parliament of the United Republic of Tanzania enacted the Referendum Act no. 11 of 2013 to guide the referendum process in the United Republic, a law which is discriminative in nature and effect.
2. That the said Referendum Act no. 11 of 2013 discriminates against Tanzanians hailing from Zanzibar by allowing the citizens from Mainland Tanzania to vote on behalf of the Zanzibaris during the referendum while disallowing the Zanzibaris from voting on behalf of those hailing from the Mainland.
3. That in effect, the provisions of the said Referendum Act no 11 of 2013 discriminates citizens of Tanzania who will participate in the referendum vote on the ground of place of origin; that is, only the citizens hailing from Tanzania Mainland will have an upper hand in deciding the fate of the nation.
4. Further that, the said Referendum Act no. 11 of 2013 infringes the right to equality before the law for the provisions stated in paragraphs herein above legalizes inequality before the law between the citizens of the United Republic of Tanzania in the prospected Referendum
5. That the said provisions of the Referendum Act no. 11 of 2013 infringes the right of citizens of Tanzania to participate in governance as provided in the Constitution because it is only those hailing from Tanzania Mainland given their place of origin who will be capable of deciding the results of the Referendum.
6. That in essence and practice, the Provision of the Referendum no. 11 of 2013 creates a conducive for malpractice in the referendum whereby malpractices are susceptible to prevail.
SPECIFIC SECTIONS IN PART III OF CHAPTER ONE OF THE CONSTITUTION WHICH ARE BASIS OF THE PETITION
7. That the Referendum Act, No. 11 of 2013, section 34 (2) in nature and effect is contrary to provisions of Article 13(1), (2) and (4) of the Constitution of the United Republic of Tanzania 1977, Cap. 2 R.E 2002.
8. That the said Section 34(2) of the Referendum Act no. 11 of 2013 is contrary to the provisions of Article 13 (2) of the Constitution of the United Republic of Tanzania 1977, Cap. 2 R.E 2002 which prohibits the Parliament from enacting any law that, directly or by implication, discriminates.
9. Further that, the effect of the said Section 34(2) is contrary to the provisions of Article 13 (4) of the Constitution of the United Republic of Tanzania 1977, Cap. 2 R.E 2002.
10. That the said provision of Section 34(2) of the Referendum Act infringes the right of citizens of Tanzania to
ipate in governance as provided by Article 21(2) of the Constitution of the United Republic of Tanzania 1977, Cap. 2 R.E 2002.
11. That the powers conferred to the National Electoral Commission pursuant to the Provision of Section 37 of the Referendum Act are likely to be used in contravention of the provisions of Article 29 (5) of the Constitution.
12. That, by allowing the Tanzanian citizens hailing from Mainland to make decision on behalf of those from Zanzibar violates the provisions of Article 13 (1) of the Constitution which prohibit discrimination of any kind of citizens of Tanzania.
13. That the provisions of section 34 (2) of the Referendum Act violate the provisions of Articles 21 of the Constitution of the United Republic of Tanzania 1977, Cap. 2 R.E 2002.
14. That intended constitutional petition seeks to challenge the constitutionality of the Referendum Act to the extent that it infringes the right of every citizen hailing from Zanzibar to vote in a fair and free election, as well as the right to equality before the law. The said Act also is going to be challenged in as much as it contravenes the provisions of the Constitution that prohibits any law enacted by Parliament to contain provisions that discriminate citizens of the country.
PARTICULARS OF FACTS
15. That sometimes in 2013 the Parliament of the United Republic of Tanzania enacted the Referendum Act no. 11 of 2013 to guide the referendum process in the United Republic.
16. That the Referendum Act came into force on 3rd of October 2014 and was implemented in both Zanzibar and Mainland.
17. That the Referendum day was proclaimed on 17th October 2014 by the President of the United Republic of Tanzania.
18. That the Constitution of Tanzania 1977 guarantees fundamental freedoms and basic human rights enshrined therein, prohibits enactment of any provision of law which discriminate on grounds of nationality, tribe, gender, disability, place of origin, political ideology, color or religion; the prohibition which is in tandem with various international human rights instruments to which Tanzania is a party.
19. That the Constitution of Tanzania 1977 further, guarantees to the Tanzanians the right to equality before the law, which is concomitant with various international human rights instruments to which Tanzania is a party.
20. That in essence and practice, the Provision of the Referendum Act, no. 11 of 2013 allow votes meant for Zanzibar to include the votes of those residing in Zanzibar and are registered under Zanzibar Electoral Commission, those residing in Zanzibar and registered under National Electoral Commission and those residing in the Mainland and registered under National Election Commission.
21. That in essence and practice, the Provision of the Referendum Act, no. 11 of 2013 allow the commission to set a date other than the voting day where individuals for reasons stated in the law who would not be able to vote on the voting day be allowed to vote on another date.
THIS PETITION is brought at the instances of the Petitioner supported by the Affidavit and Statement of RASHID SALUM ADIY annexed herewith and on any grounds that may be advanced and canvassed during the hearing of this Petition.
Given under my Hand and Seal of the Court this __, day of ______, 2015
_______
REGISTRAR
Presented for filing this____,day of ______________, 2015
____________________
REGISTRY OFFICER
Drawn Gratis by
Legal And Human Rights Centre,
Legal Aid Clinic,
Justice Mwalusanya House,
Kinondoni Biafra,
Isere Street,
P. O. Box 79633,
Dar Es Salaam.
Filed by
Rashid Salum Adiy,
Kikwajuni Juu Street,
Kikwajuni,
Zanzibar.
To be Served Upon
The Attorney General Tanzania,
P. O. Box 9050,
Dar es Salaam.
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