Citizen’s Right to Fair Hearing and Equal access to Courts of Law in Tanzania: Julius Ishengoma Francis Ndyanabo v. The attorney general, Miscellaneous Civil Cause No. 2 of 2001

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

(L.A.A. Kyando, S.E. Ihema, & N.P. Kimaro, JJ.)

RULING

Julius Ishengoma Francis Ndyanabo hereinafter referred to as the petitioner has filed a petition in this 

Court praying for the following orders:

(1) to declare sections 11(2)(3) and (4) of the Elections Act, 1985 unconstitutional for violating the basic rights guaranteed under Article 13(1), (2) and 6(a) of the Constitution of the United Republic of Tanzania;

(2) to provide for costs and any other order and or relief as deemed just and fit.

The petition accompanied by an affidavit of the petitioner and has been filed under Article 30(3) of the Constitution of the United Republic of Tanzania 1977 and Section 4 of the Basic Rights and Enforcement Act 1994 and any other enabling provisions of the law.

A brief background to the petition is that the petitioner did register as a voter for parliamentary elections for Nkenge Constituency and Presidential Elections which took place in October 2000. It is on record that the petitioner was an unsuccessful candidate in the elections for the Nkenge Constituency in the October 2000 Elections, as a result of which he has filed an election petition seeking a declaration that the said elections for the Member of Parliament for the Nkenge constituency be nullified on the ground that they were unfree and unfair.

The Elections Act 1985 as amended makes it a mandatory requirement that no date of hearing of any election petition can be fixed by the Registrar of the High court unless the petitioner has paid into court as security for costs a sum of five million shillings in respect of the proposed petition. It is not clear to us if the petitioner Mr. Ndyanabo has failed to meet this mandatory requirement to pay security for costs.

Be that as it is may, common knowledge that the requirement for deposit of security for costs in an election petition has long been provided for since 1971 vide Rule 11(1) of the Election (Elections Petitions) Rules 1971, made by the Chief Justice through GN. No. 66 of 1971 with the exception that whereas the amount for security for costs in section 111(2) of the Elections Act 1985 as amended is in respect to the Petition, the amount prescribed in Rule 11(1) is in respect of each respondent. Equally the requirement on the part of the plaintiff to give security for payment of all costs incurred and likely to be incurred in a suit by any defendant are provided for under Order 25 Rule I Sub rule I of the Civil Procedure Code, 1966. Under the said Order it is further provided that upon an order for Security for costs having been made and such security is not paid within the time fixed by the Court, the Court is enjoined to dismiss the suit. It is pertinent to note that in both situations the party required to pay or deposit security for costs will have already accessed to the Court by filing his/her pleadings and paid the necessary court fees.

Research has further revealed that Section 21(2) of the National Assembly and Presidential Elections Act 1969 (Revised) Chapter 7 of the Laws of Kenya provides for security for costs. Section 21(2) states: "The amount of security under this Section shall be Kenya shs.250,000/= and shall be given by deposit of money".

The petitioner is challenging the mandatory requirement in the provisions of Section 111(2) of the Election Act 1985 as amended and states that the provisions are patently unreasonable as a pre-condition for security for costs and that the amount is excessive thus curtailing or restricting a citizen's right to a fair hearing as well as denying a citizen equal access to the Courts of Law. The petitioner further avers that the said provisions are discriminatory for creating inequality in the enforcement of a basic right by a natural person and the office of the Attorney General and the totality thereat, in his view, makes the law unconstitutional offending Articles 13(1)(2) and 6(a) of the Constitution of the United Republic of Tanzania, advocating for equality before the law.

On their part the Attorney General who is a necessary party and respondent has disputed all the allegations in the Petition stating that the said provisions for security of costs are reasonable, sound and constitutionally valid as they are in tandem with Article 30(1) and (2)(a) and (f) of the constitution and that they do not contravene Article 13(1)(2) and (6) of the said constitution.

We have carefully considered the parties pleadings and their lucid submissions thereto and we are of the firm view that the petition has been filed without any colour of merit. It is bound to fail.

As a general principle payment of security for costs is intended to secure the payment of costs if such person does not prevail". And as correctly submitted by Mr. Mwidunda learned Senior State Attorney for the respondent the provision for security for costs puts a just and fair obligation on the part of the petitioner to secure the costs of those he drags of Court and as such the provision is legally necessary to protect a respondent in the costs to be incurred in the litigation. 

We agree and hold that the provisions of Section 111(2) of the Elections act 1985 as amended are in tandem with Article 30(1) and (2)(a) and (f) of the Constitution of the United Republic of Tanzania, imposing limitations upon, and enforcement and preservation of basic rights, freedoms and duties. Article 30(1) and (2)(a) and (f) provides:

"30(1) The human rights and freedoms, the principles of which are set out in this Constitution, shall not be exercised by a person in a manner that causes interference with or curtailment of the rights and freedoms of other persons or of the public interest.

(2) It is hereby declared that the provisions contained in this Part of this constitution which set out the basic human rights, freedoms and duties, do not invalidate any existing legislation or prohibit the enactment of any legislation or the doing of any lawful act in accordance with such legislation for the purposes of

(a) ensuring that that rights and freedoms of other people or the interests of the public are not prejudiced by the wrongful exercise of the freedoms and rights of individuals.……………….

(b) Enabling any other thing to be done which promotes, or preserves the national interest in general."

From the foregoing we do not see the potently unreasonableness of the provisions of Section 111(2) of the Elections Act 1985 as amended and the petitioner has not demonstrated or shown the unreasonableness alleged. We also observe that the requirement for deposit of security for costs is a well-established legal requirement in our civil jurisdiction and beyond.

The petitioner is noted to state further that the provisions of Section 111(2) and (3) of the Act are discriminatory as they deny equal access to court of law by creating inequality in the enforcement of a basic right by a natural person and the office of the Attorney General. The Petitioner supports his proposition by contending that adherence to the rule of law demands equal treatment before the law in terms of Article 13(1) of the constitution and to the extent that a legal provision which is discriminatory in itself or its effect is prohibited by Article 13(2) of the constitution. We quite agree that is a correct position of the law but we hasten to say that litigation, including election petitions involving the Government, are governed and or regulated by a specific legislation, the Government Proceedings Act 1967 as amended whereat, as correctly submitted by the learned Senior State Attorney, litigants' litigants' costs against the Government are more than secured under Section 15 of that Act. We are of the considered view that such a practice is more of an exception rather than outright discrimination as alluded to by the petitioner. There is therefore no violence done to Article 13(1) and (2) of the constitution which basically guarantees equality before the law.

We have in addition noted that the petitioner has attacked the provisions of Section 111(2) of the Act to be unjustifiable and restrictive as they curtail citizens' right to a fair hearing due to the fact that the amount of Tshs.5,000,000/= as security for costs is billed to be excessive. It is submitted by the petitioner that the consequences of such unjust and restrictiveness violate Article 13(1) and (6) of the constitution. Article 13(1) and (6)(a) states:

"13(1) All persons are equal before the law and are entitled, without any discrimination to protection and equality before that law.

(13(6) To ensure equality before the law the state authority shall make procedures which are appropriate or which take into account the following principles, namely:-

(a) when the rights and duties of any person are being determined by the Court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of court or of the other agency concerned:

We understand Mr. Ndyanabo, the petitioner to amplify his argument by saying that in the event that a person from a low income group has a genuine grievance against the conduct of the election and wishes to challenge it, the mandatory pre-condition for deposit of five million shillings being beyond his income, would curtail his access to a fair a hearing. The petitioner has further augmented his proposition by the provisions of Article 107(A)(2)(a) of the Constitution. The Article provides in Kiswahili that:

"Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria mahakama zitafuata kanuni zifuatazo, yaani kutenda haki kwa wote bila ya kujali hali ya mtu kijamii au kiuchumi".

We think that it is pertinent to point out that the import envisaged in Article 13(1) and (6)(a) is not in tandem with that in the Article 107(A)(2)(a) quoted above for the latter gives directions to the Courts of law as to how to enforce the basic right of equality before the law, whereas Article 13(1) and (6)(a) to a large extent deals with access to justice/court. We hold therefore that Article 107(A)(2)(a) has been quoted out of context with regard to the application before us.

In contesting the petitioner's submissions the learned Counsel for the respondent has outlined the legislative policy behind the enhancement of the amount to be paid as security for costs. We are told that the policy behind enhancement is twofold.

(a) to make the law accommodate, reflect and serve the present realities and needs in terms of the amount to be given as security for costs,

(b) to realistically secure the respondent's costs in Election Petitions which have tremendously increased.

We agree that the spirit behind the amendment to Section 111 of the Elections Act 1985 was intended to ensure that respondents in election petitions are protected in terms of costs which they are forced to incur in defending their cases. We are not persuaded that the amendment was either intended to introduce a new aspect unknown to law or a pre-condition to curtail the right to fair hearing and equality before the law. For we reiterate that the legal requirement for payment of security for costs is well established and accepted in many jurisdictions where the rule of law is vigorously followed. We, on the other hand, find it desirable to introduce such adequate safeguards for a petitioner who is not able to give the prescribed security for costs. Essentially this is what I provided for in Rule 11(3) of the Election (Elections petitions) rules 1971 which we believe is still in force and applicable. For the avoidance of doubt we advise that the wording of Rule 11(3) of the Election (elections Petitions) Rules, 1971 be also uplifted and introduced in the provisions of Section 111 of the Elections Act 1985.

In the final analysis and for the reasons we have given we dismiss the petition with costs. We order accordingly.