Tanzania: High Court Quashes Five Two-Term Presidential Limit Case

By Faustine Kapama

THE High Court in Dar es Salaam yesterday rejected a lawsuit lodged by a farmer, Mr DezydeliusMgoya, who was questioning five two-term presidential limit of each leadership in the country's highest office.

Principal Judge, Dr Eliezer Feleshi ruled against the farmer, the petitioner, after upholding one ground of objection presented by the Attorney General, the respondent, with effect that the Court lacked jurisdiction to entertain the matter.

The principal judge pointed out that the petitioner- who had sought for accurate interpretation of the constitutional clauses, in particular Articles 40 (2) and 42 (2) of the Constitution, putting limits on the presidential term- could not guide the Court under which laws such matter should be adjudged.

"I find the petition is bad in law for contravening section 6 of the (Basic Rights and Duties Enforcement Act and Articles 26 (2) and 30 (3) of the Constitution. The issue whether the court has jurisdiction to adjudge the petition is answered in the negative. Therefore, the petition is struck out," he declared.

In his submissions, the petitioner had adamantly maintained that his petition was filed under section 4, 5, 8 (1) (a) and (b) of the Basic Rights and Duties Enforcement Act (BRADEA), Rule 4 of the Rules and Article 30 (3) of the Constitution, thus falls well within the competence of the court's jurisdiction.

Dr Feleshi, however, said it was clear the textual presentation of natural wording of the cited provisions leave no doubt that the court is vested with jurisdiction to adjudge allegations regarding any provisions of Articles 12 to 29 of Constitution which had been or likely to be contravened in relation to him.

Nevertheless, the principal judge pointed out that the petitioner must clearly set out his grounds and redress sought in purview of the first part of Article 30 (3) of the Constitution and section 6 of the BRADEA among others.

On the other hand, he said the court was also vested with jurisdiction to adjudge allegations relating to violation on basic rights and duties emanating from any provision in any law other than Articles 12 to 29 of the constitution, which are clearly pleaded under the second part of Article 30 and 26 (2).

"It is therefore clear that in the instant petition, Articles 39, 40 (2), 42 (2) of the Constitution which do not either fall under Part III of Chapter One or in any other laws per the second part of Article 30 (3) have remained hanging without any enabling provision conferring jurisdiction to this court," he said.

According to him, though the petitioner vehemently submitted that his petition is compliant to section 6 of BRADEA as he filed under sections 3,4,5,6 and 8 (3) of the same Act, the fact was that he moved the court under other laws where his originating summons could not include section 6 of the Act.

Under the circumstances, the principal judge said it became evident that the petitioner's prayers for the proper interpretation of the meaning and effect of certain Articles under the Constitution were raised without pleading the requisite court's jurisdiction.

Such Articles include 40 (2), 42 (2) in connection with Articles 13, 21 and 22 (2) of the Constitution, on one hand, and Article 40 (2) in relation to Article 39 of the Constitution, on the other hand.

Dr Feleshi also pointed out that it is important to observe and maintain the sanctity of the Constitution which was enacted by the Constituent Assembly of the United Republic of Tanzania on behalf of the people with some constitutional jurisdictional limited found in provisions like Article 41 (7) and 100.

Such provisions, he said, have to be observed whenever the Judiciary is called on to discharge its constitutional mandate under Article 107A (1) of the Constitution.

The principal judge agreed with submissions by parties that raising prayers for the court to make mere interpretation without pleading its jurisdiction amounts to inviting the same to exercise its mind into an academic exercise and that may warrant the court to create the powers which are not vested on it.

During the hearing of the matter, Principal State Attorneys Alisia Mbuya and Deonatus Nyoni appeared for the respondent, while advocate Jebra Kambole was for ACT-Wazalendo, an opposition political party, which had joined into the matter as an interested party. The petitioner was unrepresented.

The farmer, a resident of Mbezi Beach in Dar es Salaam, filed a lawsuit in the High Court, Main Registry, against the Attorney General, asking the court to provide an accurate interpretation of the constitutional clause putting limits on the presidential term.

According to the petition, the farmer was questioning Article 40 (2) of the Constitution, which sets the presidential two term limit of five years each of leadership in such capacity. He thus seeks for proper interpretation of the provision and effects of conditions of the Article in question.

The petitioner further requested the Court to provide interpretation of Article 42(2) of the Constitution vis-à-vis the provisions of Articles 13, 21 and 22 and Article 40 (2) as against Article 39 of the Constitution, as amended from time to time.

Mgoya argued that the limitation provided for under Article 40 (2) of the Constitution is against the constitutional right to freedom of public participation in the election or election of the president of the United Republic of Tanzania and equality before the law under Articles 21 and 13.