THE HIGH COURT OF TANZANIA AT DODOMA.CIVIL CASE NO. 5 OF 1993.REV. CHISTOPHER MTIKILA====================} PLAINTIFF.
VERSUS
THE ATTORNEY GENERAL ====================} DEFENDANT.
RULING: LUGAKINGIRA. A. J.
This was an unusual petition. In it’s content and demands it constitutes several petitions in one,
which range from challenge to the validity of diverse laws to the protection of the construction
and legality. The petitioner, the Rev. Christopher Mtikila, is a human rights campaigner and
political activist and was represented by learned counsel Mr. Dominic Mbani who was assisted by
Mr. Richard Rweyongeza. Mr. Kipenka Msemembo Musa, a Senior State Attorney, represented
the respondent Attorney General. I wish to commend them all for the industry and brilliance that
went into the preparation and presentation of arguments.
The petition originally raised very diverse issues, many of them rather political in flavor and
substance, and this prompted Mr. Musa to raise a litany of preliminary objections, which the court
resolved in the early stages of the proceeding. The objections were grounded in questions of the
petitioner’s locus stack, cause of action and justifiability of some of the issues. At the day a
number of matters were stuck out and issues were then framed for the survivors. In view of the
character of the petition, which had to be amended several times, it is better to paraphrase these
issues rather than merely list them.
The first issue is a general one and is tied up with the second and fifth issues. It seeks to establish
generally whether the fundamental rights guaranteed in part III, chapter one of the constitution of
the united republic, 1977 are immutable. The inquiry is prompted by a set of amendment Act,
1992 (no.4). The act amends articles 39,67 and 77 in a manner which appears to infringe the
right of participation in national public affairs which is guaranteed by Art .21(1);It also amends
Art 20 in a manner that appears to infringe the freedom of association which is guaranteed in sub-
art ,(1) there of. To put it differently, the problem posed in the first issue is whether the
amendments to the constitution were validly made and, if not ,whether they can be declared void
pursuant to the provisions of Art.64 (5).
The second issue on the provisions of ss.8,9,10 and 15 of the Political Parties
Act,1992(No.5)which was enacted pursuant to the amendment to Art 20.These provisions are
alleged to inhibit the formation of political parties and therefore to infringe the freedom of
association. I am called upon to declare them unconstitutional and void. The fifth issues arises
from the amendment to Articles 39,67,and 77 as well as 39 of the Local Authorities
(Elections)Act ,1979.These amendments render it impossible for independent candidates to
contest for Presidential, Parliamentary or local council elections and again called upon to
remedy the situation.
In the third issue the petition takes on ss.5 (2),13,25 and 37-47 of the Newspapers Act ,1976
(No.3).Section 5(2) empowers the Minister responsible for the matters relating to newspapers to
exclude any newspaper from the operation of any of the provisions relating to the registration of
newspapers.