court should not entertain public litigation.
I gave serious consideration to the matters raised in this petition and the prayers connected
therewith and I was persuaded that in quite a number of areas the public interest overwhelmed
what appeared to be a private factor. I therefore allowed arguments to proceed on the issues
reviewed above. But in the light of those arguments and what is stated in this paragraph, it may be
necessary to reconsider the position of one issue at appropriate stage later. Meanwhile I will turn
to dispose of the question of cause of action.
Cause of action is not a problem in this petition. Mr. Mussa seemed to suggest, but I respectfully
disagree, that in order for the cause of action to arise an event injurious to the rights of the
petitioner must have taken place. In my view, where the issue is whether a law is unconstitutional
the court looks at the law itself but not at how it works. The following passage from Chitaley &
Rio, The Constitution of India (1970: 686), citing Prahalad Jen v. State. AIR 1950 Orissa 157, is
to the point:
In order to determine whether a particular law is repugnant or inconsistent with the Fundamental
Rights it is the provisions of the Act that must be looked at and not the manner in which the
power under the provision is actually exercised. Inconsistency or repugnancy does not depend
upon the exercise of the power by virtue of the Act but on the nature of the provisions
themselves.
I agree and may not wish to add anything more. In this petition the dispute is over the validity of
various laws and this, in my view, constitutes the necessary cause of the action. A situation could
certainly arise where the cause of action would depend upon actual exercise of power. Such a
situation is exemplified in this petition where the constitutionality of the appointment of
Zanzibaris to non-union positions on the Mainland is questioned.
In that context it is the appointments themselves that constitutes the cause of action, but that has
to do with the validity of the action rather than law. There now remains the question of
justifiability of the claims but since that has more to do with the first of the issues, I will now turn
to consider them.
The first issue seeks to determine the immutability of basic rights enacted in the Constitution.
This turns on the power of the Parliament to amend the provisions providing for these rights.
Specifically, what is at issue are the amendments to Art .20 and Art .39 of the Constitution vide
the Eighth Constitutional Amendment Act, 1992.In its original form Art.20 read as follows:
20- (1) Subject to the laws of the land, every person is entitled to freedom of peaceful assembly,
association and public expression, that is to say the right to assemble freely and peaceably, to
associate with other persons and, in particular to form or belong to organizations or associations
formed for the purposes of protecting or furthering his or any other interests.
(2) Subject to the relevant laws of the Land, a person shall not be compelled to belong to any
association. And its amendment form clause (1) remains unaffected; hence the rights and
freedoms spelt out therein remain as before. Our interest in this petition centers on the freedom of
association, which, under the present multi-party system, includes the formation of the political
parties. Clause (2) was also unaffected by the amendment save that it now became clause (4). In
between there are new clauses (2) and (3), which it is necessary to set out in full. (The translation
from Kiswahili is partly my own and partly adapted.)
(2) Without prejudice to subsection no political party shall qualify for registration if by its