provision is reasonable and valid the mere possibility of its being abused in actual operation will
not make it invalid. Collector of customs (Madras) v. N. S. Chetty, AIR 1962 SC 316.) It seems
to me with respect that much of what was said against the above provisions reflected generally on
what could happen in their operation rather on what they actually provided for was generally
referred to the decision of the Court of Appeal in Kukutia ale pumbum v. Attorney General,
Civil Appeal No.32 of 1992, but I think that case covers a different situation the situation were a
person was deprived of his right of his right to sue unless he was permitted to do so by the
defendant. The provisions complained of however are administrative and implementation and
their constitutionality can only be challenged if they were not with in the power of the legislature
to enact them.
Secondly and most importantly, I have unfortunately come to doubt the petitioners standing in
this issue. As stated before our constitution confers a double capacity on every person – his
personal and his community capacities. Now in what capacity did the petitioner take up these
provisions? It can not be in his personal capacity because there is nothing in the provisions or any
of them which is shown to have contravened is contravening or is likely to contravene his right to
receive or impart information. The contravention has to be read in the provisions themselves. It
transpires that the petitioner’s complaint is in fact founded on the banning of the “Michapo” and
“cheka” newspapers vide Government Notice No. 8 of 1993. That is improper the use or misuse
of the powers granted by S.25, the relevant provision in that connection has nothing to do with
the validity of that provision as such. What would be relevant is whether parliament had no power
to grant those powers.
As for the misfortunes of “ Michapo” and “Cheka” the doors were open for the option of judicial
review but it seems better options were found. Can we alternative that this issue falls under public
interest. In other words the general public of interest litigation? I don’t think so either. As seen
before, public interest litigation is litigation in the interest of the public. In other words the
general public or section thereof must be seen to be aggrieved by the state of the law to be
desirous of redress. There could probably be provisions in the Newspaper Act one could consider
oppressive, unreasonable and even unconstitutional, but that is beside the point: the point is that
there is no evidence of public agitation against the law. And by “public” I do not mean merely
newspaper editors but the Tanzanian public generally. Ironically whatever this law may be
identified with appear to be overshadowed by the unprecedented upsurge of private newspapers
in recent years. As stated in Sanjeev Coke Manufacturing Co. V. Bhamet Coal Ltd. Air 1983
SC239, courts are not authorized to make disembodied pronouncements on serious and clouded
issues between parties properly ranged on either side and a crossing of the swords. It is
inexpedient for the court to delve into problems, which do not arise and express opinion thereon,
in the premises I decline to pronounce on the third issue.
The fourth issue brings us to the provisions of the police force ordinance and the Political Parties
Act touching on assemblies and processions. Under S.40 of the former a permit is necessary to
organize an assembly or procession in public place. The permit is grantable by the District
Commissioner. Similarly, political parties require a permit from the district commissioner to hold
public meetings pursuant to the provisions of S.11 (1) of the political parties Act section 41 of the
ordinance empowers a police officer above the rank of inspector or any magistrate to stop or
prevent any assembly or procession of the holding or continuance of it “is imminently likely to
cause a breach of the peace or to prejudice the public safety ...” the police officer or magistrate
may therefore give orders, including orders for the dispersal of the Assembly or procession, S.42
defines what constitutes unlawful assembly or procession, namely an assembly or procession not
authorized by permit, where one is required, or one held in contravention of the conditions
thereof or in disregard of orders by the police or magistrate. S.43 is the penal provision for