that participation in national public affairs shall through political parties. As seen earlier,
modification in application is covered under Art.98 (2). I also think that the amendments are
within the ambit of Art. (2) If the public order be taken as having supplied the inspiration. These
amendments were, therefore, validly made.
It should be understood, however, that I am at this juncture talking of validity in strict legal terms;
the amendments are otherwise not free from difficulties, and these are dealt with under the fifth
issue.
The Court’s power to declare a law void is founded in Art.64 (5).
Having held that the impugned constitutional amendments were validly made, I do not have to
consider whether such amendments are “law” within the meaning of the article. I have read in this
connection the interesting arguments in the cases of Golaknath v. State of Punjab (1967) 2 SCR
762 and Kesavananda v. State of Kerala (1973). Supp. SCR, but in view of the decision I have
reached am unable to take advantage of them.
The second issue questions the constitutionality of S.8, 9,10, and 15 of the Political Parties Act.
Much effort had gone into this matter when I was obliged to admit that the trial of this issue
should have been stayed. Last year the petitioner filed at the Dar es Salaam registry of this Court
an application for orders of certiorari and mandamus. That was Miscellaneous Civil Cause No.67
of 1993, the applicants being himself and the Democratic Party and the respondents being the
Attorney General and the Registrar of the Political Parties. The groups for the application were
that the Registrar was biased in refusing to register the Democratic Party and the Political Parties
Act (apparently the whole of it) was unconstitutional and void. He was praying for orders to
quash the Registrar’s decision and to direct him to reconsider the Democratic Party’s application
according to law. The application was heard and subsequently dismissed by Maina. J. on 14th
December 1993. Two days later the petitioned lodged a notice of appeal. There is now pending
before the Court of Appeal a civil appeal No.24 of 1994,in which the first ground of appeal
states:-
“The learned judge erred in law in failing to hold that Section 8 and 10 of the Political
parties Act, 1992 Act .No.5 of 1992 are violations of article 13 (6) of the Constitution of
the United Republic of Tanzania and therefore null and void on the ground that they do
not provide for fair hearing before the Second respondent’s decision to refuse full
registration of a Political Party.”The memorandum concludes: -
It is prepared to ask the Court for the following orders:
an order striking out sections 8,10 and 16 of the Political Parties Act, 1992.
In the present petition I am confronted with the same prayer with slight variation, namely, to
strike out S.8, 9,10 and 15 of the same Act. In other words a suit in which the matter in issue is
substantially in issue in another suit between the same parties is pending in another court in the
country. It seems also that the Dar es Salaam suit was instituted earlier because the record of this
petition shows that its trial was being put off to await the outcome of the former. In these
proceedings we do not have a prescribed procedure but we have invariably invoked and been
guided by the provisions of the Civil Procedure Code, 1966.Section 8 of the code provides thus: -
S. 8 - No court shall proceed with the trial of any suit in which the matter in issue is also directly
or substantially in issue in a previously instituted suit between the same parties, or between
parties under whom they or any of them claim litigating under the same title where such suit is