Christopher Mtikila versus The Attorney General; Misc Civil Cause No. 10 of 2005: High Court of Tanzania at Dar es Salaam (Unreported).
- Constitutional Law.
- Principles of interpretation of the Constitution and resolution of constitution disputes.
- Derogation of basic rights –Derogation of basic rights on public interest – the rules applicable to determine its constitutionality.
- International conventions – whether they are applicable in interpreting the constitution.
- Civil Procedure
- Basic Rights– the procedure applicable in instituting petitions under the Basic Rights and Duties Enforcement Act- Effect of non-Compliance with the procedure.
- Legal Method
- Statutory interpretation – Rules applicable in interpreting the constitution.
Held:-
(i) Principles that govern the interpretation of the constitution and resolution of constitutional disputes are the following-: (quoted from Julius Ishengoma Ndyanabo v. The Attorney General – CAT).
(a) The Constitution of the United Republic of Tanzania is a Soul and consciousness of its own. Courts must therefore endeavour to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purpose for which its makers framed it.
(b) The provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions but grown and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must therefore be strictly construed. So courts have a duty to interpret the constitution so as to further fundamental objectives and directives of state policy.
(c) Until the contrary is proved, legislation is presumed to be constitutional. If possible legislation should receive such a construction as will make it operative and not inoperative.
(d) Since there is a presumption of constitutionality of legislation save where there is a claw back or exclusion clause relied upon as a basis for constitutionality the onus is upon those who challenge the constitutionality of the legislation, they have to rebut that presumption.
(e) Where those supporting a restriction on a fundamental right rely on a claw back or exclusion clause, in doing so, the onus is on them to justify the restriction.
(f) Whoever relies on a claw back or exclusion clause has to prove that the restrictions are not arbitrary, unreasonable and disproportionate to any claim of state interest.
The other principles of constitutional interpretation include-:
(g) Courts are not concerned with the legislative wisdom of Parliament: They are concerned only with its legislative competence.
(h) While parliament cannot directly override a decision of a court of law declaring a statute unconstitutional and pronounce it to have been valid, it can make a fresh law, free from unconstitutionality.
(i) Courts do accept that civilization owes quite as much to those who limit freedom as to those who expand it.
(j) A constitution must not be construed in isolation, but in its context which includes the history and background to the adoption of the constitution itself. It must also be construed in a way which secures for individuals the full measure of its provisions.
(ii) Institution of petitions under the Basic Rights and Duties Enforcement Act should be made by petition and by originating summons. However, failure to file petition without originating summons is not fatal. This is because a court should take liberal approach to rules of practice, and procedure where basic rights and freedoms are involved so as to give to the complainant a full measure of his rights. The rationale is that since the rights guaranteed by the constitution are effectively enforced, and that to decline to examine the merits of a petition on the basis of a procedural technicality would be an abrogation of that duty.
(iii) A law which seeks to limit or derogate from the basic right of the individual on grounds of public interest will be declared unconstitutional unless it satisfies two requirements
(a) That it is not arbitrary, and;
(b) That the limitation imposed by law is no more that is reasonably necessary to achieve the legitimate objection.
(vi) International conventions must be taken into account in interpreting, not only constitution but also other laws because Tanzania does not exist in isolation.