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Attorney General - Tanzania v. Rev. Christopher Mtikila, CA-CVA # 45 of 2009 (Per Ramadhani Cj)

Attorney General - Tanzania v. Rev. Christopher Mtikila, CA-CVA # 45 of 2009 (Per Ramadhani Cj)

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Published by R. Willy Tenga
Tanzania Court of Appeal Decision on the Constitutional Provisions that prohibit PRIVATE CANDIDATES in Elections. These provisions are viewed as a Breach of Fundamental Rights against the right to participate in governance. The Court holds that to provide for Independent Candidates is a political and not a legal issue. Many see the decision as a reactionary judgment sidestepping issues raised by Reverend Mtikila.
Tanzania Court of Appeal Decision on the Constitutional Provisions that prohibit PRIVATE CANDIDATES in Elections. These provisions are viewed as a Breach of Fundamental Rights against the right to participate in governance. The Court holds that to provide for Independent Candidates is a political and not a legal issue. Many see the decision as a reactionary judgment sidestepping issues raised by Reverend Mtikila.

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Published by: R. Willy Tenga on Jun 17, 2010
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01/07/2013

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THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAMRAMADHANI, C. J.; MUNUO, J. A.; MSOFFE J. A.; KIMAROJ,AMBAROUK, J.A.; LUANDA, J. A.; and MJASIRI, J.A.)CIVIL APPEAL NO. 45 OF 2009BETWEENTHE HONOURABLE ATTORNEY GENERAL ... APPELLANT ANDREVEREND CHRISTOPHER MTIKILA ... RESPONDENT(Appeal from the Judgment of the High Court of Tanzania at DarEs Salaam,)(Manento, J. K.; Massati, J. And Mihayo, J.)dated the 5
th
day of May , 2006inMisc. Civil Cause No. 10 of 2005JUDGMENT OF THE COURTRAMADHANI, C. J.:
For the ease of reference and to avoid a possible mix-up and confusion, weshall refer to the parties simply as Rev. Mtikila for Reverend Christopher Mtikila, the respondent/petitioner, on the one hand, and the A. G. for theAttorney General, the appellant/respondent, on the other hand. Also toappreciate most fully what is at stake in this appeal we have to preface this judgment with a brief background.
 
Way back in 1993 Rev. Mtikila filed Misc. Civil Cause No. 5 of 1993,challenging, among other matters, the prohibition of independentcandidates for presidential, parliamentary and civic elections which wasintroduced by the Eighth Constitutional Amendment Act, 1992. That Actamended Art. 39 which previously provided as follows:No person shall be eligible for election to the office of President of the United Republic unless he -(a)
 
has attained the age of forty years; and(b)
 
is otherwise qualified for election as a Member of the National Assembly or of the (Zanzibar) Houseof Representatives.The Eighth Amendment retained the above paragraphs but re-numberedthem as (b) and (d) respectively and added new paragraphs (a) and (c)which state:(a) is a citizen of the United Republic by birth;(c)
 
is a member of and sponsored by a political party.That requirement for membership of and sponsorship by a political partyapplies also to parliamentary elections under Articles 67 and 77 and to localcouncils elections under s. 39 of the Local Authorities (Elections) Act, 1979,
 
as amended by the Local Authorities (Elections) (Amendment) Act, _ (Act No 7 of 1992).Rev. Mtikila's contention before LUGAKINGIRA, J. (as he then was) wasthat the requirement for membership of and sponsorship by a politicalparty abridged the right to participate in national public affairs under Art.21(1) of the Constitution which provides:-Every citizen of the United Republic is entitled to take partin matters pertaining to the governance of the country,either directly or through representatives freely elected bythe people in conformity with procedures laid down by, or inaccordance with, the law.LUGAKINGIRA, J. poignantly summed up his dilemma as we shall see laterand concluded that:For everything I have endeavored to state andnotwithstanding the exclusionary elements to that effect inarts 39, 67 and 77 of the Constitution as well as s 39 of theLocal Authorities (Elections) Act 1979, I
declare anddirect that it shall be lawful for independentcandidates, along with candidates sponsored bypolitical parties, to contest presidential,
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