Court ruling on independent candidates overturned

Wednesday June 24 2020

President Jakaya Kikwete shakes hands with Rev

President Jakaya Kikwete shakes hands with Rev Christopher Mtikila (centre) after he had officiated Law Day at he High Court grounds in Dar es Salaam. Left is Chief Justice Mohamed Chande Othman. PHOTO | FILE 

By William Shao @TheCitizenTZnews@tz.nationmedia.com

Dar es Salaam. Towards the October 2010 General Election there were two major events that grabbed the attention of many in Tanzania. The one was about the signing of the Electoral Expenses Act and the other was about the Court of Appeal over-turned an earlier High Court decision to allow independent candidates to contest elections.

The process of the 2010 polls started on March 17, 2010 when President Jakaya Kikwete signed a Bill on controlling electoral expenses into law by inviting leaders of various institutions and political parties. “I silently signed other Bills into law, but I’m signing this one with much fanfare,” said President Kikwete.

It was the first time in the country’s history for the President to assent to a law in public by inviting a number of dignitaries. The signing of the Bill by the President turned into a national event as it was entertained by a live police band and broadcast by both State-run and private radio and TV stations.

 

The electoral Expenses Act was a result of the Bill passed by the 18th meeting of Parliament that came to close on February 12, 2010 and many people had the interpretation that it aimed at controlling those, who used money to try and influence the electoral process within CCM.

Despite that fact, the Opposition believed the law could help control those people spending a lot of cash in order to kind of buy top positions, they also believed CCM could misuse it to block powerful opposition contestants.

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“This law will cause confusion. The chairman of the National Electoral Commission and the Registrar of Political Parties may use it to prevent a person from contesting. CCM may use it to block the opposition,” said CUF chairman Ibrahim Lipumba.

On Thursday, June 17, hardly four months before the polls, the dream of having an independent aspirant to vie for various political leadership positions was shuttered after the Appeals Court over-turned the High Court’s decision of allowing independent candidates.

Earlier, Reverend Christopher Mtikila opened a case at the High Court challenging the law that bars an independent contestant from vying for a political leadership position, saying such a law was against the country’s Constitution.

A panel of three judges of the High Court, Amir Manento, Salum Massati and Thomas Mihayo changed the law that barred an independent contestant in their judgment on May 5, 2006 and gave the government six months to rectify the respective Articles in the Constitution to allow such a contestant. The High Court said the Articles that were inserted in the Constitution to prevent independent contestants were null and void because they breached the very Constitution.

The High Court directed the government to prepare legal procedures to allow such contestants, starting with the process of the polls (May 5, 2010).

The panel judges made the decision in Constitutional Petition No. 10 of 2005 filed by Rev Christopher Mtikila and made a clarification on a decision made 14 years earlier by the late judge Kahwa Lugakingira of the High Court over a case that was also filed by Rev Mtikila.

Following the High Court’s decision, many people believed that independent contestants would have been allowed to vie for political leadership positions in the 2010 General Election.

“So, it is upon people to support or not to support such a contestant,” said the High Court in its 48-page decision.In Mtikila’s case filed in 2004, the former asked the High Court to declare that the amendments made in Articles 39 and 67 of the Constitution and institut-ing the Act no. 34 of 1994 were against the Constitution.

 Mtikila also asked the High Court to order that he had a constitutional right under section of 2(1) of the Constitution to contest the presidency, a parliamentary seat and councillorship as an independent contestant. However, after Mtikila had won his case, the government appealed The Court of Appeal overturned the High Court’s decision after Chief Justice (CJ) Augustine Ramadhani made the decision on June 17, on behalf of fellow justices who heard the appeal in which the government won.

CJ Ramadhani’s panel of seven judges included Eusebio Munuo, Januari Msofe, Bernard Luanda, Mbarouk Mbarouk, Nathalia Kimaro and Sauda Mjasiri. The Court of Appeal agreed with the government’s argument after observing advice from legal professionals specialized in constitutional matters.

The legal professionals, who were normally called ‘friends of court’ included Prof Palamagamba Kabudi and Prof Jwani Mwaikusa, who were both lecturers at the University of Dar es Salaam (UDSM), and Zanzibar’s Director of Pub-lic Prosecutions (DPP), Othmani Masoud.

The legal professionals were consulted by the Appeals Court to give advice whether the High Court could announce or annul any constitutional section, whereby they agreed with the government’s argument that the High Court had no legal mandate of annulling a constitutional article. “In this case, we decide that the issue of an independent contestant must be made by Parliament that has a legal mandate of amending the constitution, but not courts which have the legal mandate,” ordered the Appeals Court. “All said and done, it is obvious that we cannot legally order that an independent contestant is allowed to vie for a political leadership position. That is the area of the Parliament administration to emend the Constitution in accordance with its section 98 (1),” said the Appeals Court.