"Fiat Justitia Ruat Caelum"

Why not in Tanzania? Iran Court sentences four to Death in Fraud Case


Sung Un Kim
An Iranian Court on Monday (30/07/2012) sentenced to death four individuals convicted on financial corruption charges, the Islamic Republic News Agency (IRNA) reported. The national news agency cited Prosecutor-General Gholamhossein Mohseni-Ejei, who said that the four were among 39 suspects who received sentences ranging 25 years to life in prison. They were accused of involvement in a USD $2.6 billion bank loan embezzlement case last year. IRNA reported that the man behind the bank fraud forged letters of credit from a bank in Iran, Saderat, to fund numerous companies and obtain a state-owned steel factory. There has been criticism that the anti-corruption campaign of Iranian President Mahmoud Ahmadinejad and the government's privatization only benefit political elites. Some of the defendants in the case have argued that high-level officials who were also involved in the fraud were not prosecuted against while the government claimed that the issue of corruption were addressed in an open manner.
Corruption continues to be a problem throughout the world. Earlier this month, UN High Commissioner for Human Rights Navi Pillay called on the government of Kyrgyzstan to ensure the protection of human rights and the rule of law while mentioning that corruption is one of the main problems the country faces affecting every aspect of society, undermining the "rule of law, the police, the judiciary, and trust in both local and national authorities." The same day, former Israeli Prime Minister Ehud Olmert was acquitted of two major counts of corruption but found guilty of a third lesser charge on Tuesday in the culmination of a three-year trial. In June Bolivian authorities arrested a former chief of the country's armed forces on corruption charges including illicit enrichment, dereliction of duty and abuse of influence.

Source: The Jurist (30/07/2012):
http://jurist.org/paperchase/2012/07/iran-court-sentence-four-to-death-in-fraud-case.php

Preliminary Objection's Ruling: Zachary Olum and Another v. The Attorney General, Constitutional Petition No. 6 of 1999


Constitutional Court, Uganda
Facts:

The petitioners sought a declaration that the refusal by Parliament to grant the petitioners and other members leave to give evidence and use the Hansard in the Constitutional Court was inconsistent and contravened Articles 1(1) and (3), 3(1) and (2), 20(1) and (2), 28(1), 29(1)(a) and (d), 41, 43(1)(c) and 44(c) of the Constitution; section 15 of the National Assembly (Powers and Privileges) Act is inconsistent with these Articles and; rule 17(2) of the Rules of Procedure of the Parliament of Uganda is inconsistent with Articles 88 and 89 of the Constitution. It was contended for the petitioner, among other things, that section 15 of the National Assembly (Powers and Privileges) Act is inconsistent with clauses xxvi(I) and xxix (a), (f) and (g) of the National Objectives and Directive Principles of State Policy as stipulated in the Constitution. 

 Counsel for the respondent raised six preliminary points of objection: that the petition does not raise any question or point for interpretation of the Constitution with the result that court has no jurisdiction to entertain the petition because the National Objectives and Directive Principles of State Policy appearing immediately after the preamble to the Constitution are not constitutional provisions envisaged by Article 137 of the Constitution under which this petition is brought and the Articles of the Constitution said to be violated are irrelevant to the petitioners' complaints; that the petition is not supported by evidence when it should; that the petition is frivolous and vexatious for raising issues in a constitutional petition that is on appeal; that the petition does not disclose a cause of action against the Attorney General as it does not show that the Government of Uganda is liable to the petitioners in any way; that court is not competent to adjudicate on matters of internal proceedings of Parliament and that the petition is time barred.

Key Issues:

(a) Whether the National Objectives and Directive Principles of State Policy are Constitutional Provisions;

(b) Whether a breach of the National Objectives and Directive Principles of State Policy amounts to a breach of the Constitution; and

(c) Whether the Court is competent to adjudicate on matters of internal proceedings of Parliament.

Held:

(i) The Constitutional Court has jurisdiction conferred on it by Article 137
of the Constitution in matters where it is alleged that an Act of Parliament or any other law is inconsistent with or contravening a provision. This provision allows it to determine whether section 15 of the National Assembly (Powers and Privileges) Act is inconsistent with or contravening the Articles referred to in the petition. Whether Articles are relevant or not is a matter of substance and not jurisdiction;

(ii) The National Objectives and Directive Principles of State Policy contained in the Constitution are an important part of the Constitution as they form the spirit de core of the Constitution, are non-justiciable and are important canons for the interpretation of the Constitution; and

(iii) The Attorney General can only represent the Government in actions to which it is a party. In cases of public interest, the Attorney General should be made a party, and if he is left out, the court will join him as a respondent of its volition under Order 1, rule 10(2) of the Civil Procedure Rules.

Objections overruled.

Compiled by Jaba Shadrack

Associational autonomy vis-à-vis Registration of Trade Union: Angaha and Others v. Registrar of Trade Unions, Civil Appeal 71 of 1972


High Court of Kenya at Nairobi (Muli, J)
Facts:
The appellants sought to register themselves as a trade union under the name and style of the Kenya Institutional Worker's Union (hereafter referred to as the proposed trade union), pursuant to the Trade Union Act, Cap. 233. The Registrar refused to register them basing his decision on the objections raised by three existing trade unions that other trade unions already registered were sufficiently representative of a substantial proportion of the interests in respect of which the appellants sought registration.
The appellants' Arguments:
(i) The Registrar erred in failing to consider sufficiently at all the entire evidence that was available.
(ii) The Registrar erred in failing to inform the appellants of objections that were advanced against the registration of the appellant's proposed trade union before he made his said Order.
(iii) The Registrar erred in failing to consider that the membership of the proposed trade union would comprise of employees whose interests cannot be catered for by any other trade union.
Issues:
(a) Whether the Trade Union Act is inconsistent with the Constitution for forbidding registration of a Trade Union on the ground of being sufficiently representative of the whole; and
(b) Whether the right to form a Trade Union is absolute.
Held:
1. An appeal to the High Court for registration of a trade union is incompetent under the rules if the Registration has not yet made a final decision refusing to register the proposed trade union.
2. While the Registrar has discretion to refuse registration of any trade union if he is satisfied that any of the nine requirements of S.16 of the Act are not satisfied or complied with, it is nevertheless mandatory that in the event of his refusal under paragraph (d) sub-section (1) thereof, he must notify any registered trade unions concerned and he must invite them to submit any objections they may wish to make against the registration sought.
3. The trade union Act expressly provides special procedures and duties the Registrar must follow upon refusal to register a Trade. Apart from these, there are no further implied duties he has to follow.
4. Under the Trade Union Act, the onus to satisfy the Registrar that the proposed Trade Union satisfied the requirements of S.16 of the Act lay on the appellant.
5. The application of principles of natural justice depends on the nature of inquiry and each case must be considered on the circumstances of that particular case.
6. The Constitution protects the freedom to belong to a Trade Union.
7. The Trade Union Act is not inconsistent with the Constitution in as far as it forbids the registration of a Trade Union on the ground that other registered Trade Unions are sufficiently representative of the whole or substantial proportion of the interests in respect of which registration of a Trade Union is sought. The right to be registered as a Trade Union is a contingent right acquired upon fulfilment of the requirements of the provisions of the Trade Union Act.
8. The Registrar is charged with the duty to satisfy himself that the policy laid down under the Constitution and safeguarded by the provisions under the Trade Union Act is not infringed. In the instant case, he had ample evidence that the interests of the proposed Trade Union were sufficiently represented or substantial proportions thereof were represented by the other registered Trade Union. Therefore, his refusal to register the proposed Trade Union was not to divest itself of a vested right and therefore he had no duty to call upon them to show cause why the proposed Trade Union should not be refused registration.
Compiled by Jaba Shadrack, 2012

The Law of Landlord and Tenant (Leases) in England and Tanzania: “Fitness and Repair” Covenant


Jaba Shadrack (UDSM, School of Law), jaba@udsm.ac.tz
Fitness and repair: this phrase contains two technical expressions; i.e.

(1) Fitness:
Means that where any dwelling house, flat or room is leased (demised) such house or flat must be fit (suitable) for Habitation (habitable house, building or room) at the commencement of the tenancy.

(2) Repair:
Per Buckley LJ., in LURCOTT V. WAKELY and WHEELER, repair is the restoration by renewal or replacement of subsidiary parts of a whole. Renewal, as distinguished from repair, is reconstruction of the entirety, meaning by the entirety not necessarily the whole but substantially the whole subject-matter under discussion.
In reference to "repair" Parke B. in WALKER V. HATTON says "...a general covenant to repair must be construed to have reference to the condition of the premises at the time when the covenant begins to operate".

Covenant:
In English law, is an agreement which the law implies from the use of certain words having a known legal operation in the creation of an estate; so that, after they have had their primary operation in creating the estate, the law gives them a secondary force by implying an agreement on the part of the grantor to protect and preserve the estate which by those words has been already created (Williams v Burrell (1845) 1 CB 402 at 429).

A: Common law position as to the fitness and repair covenant
(i) General Rule (at common law) in relation to:
Unfurnished premises (a room or building not supplied with furniture or fittings).
The landlord of unfurnished premises was under no duty to ensure that they were fit for human habitation or in a state of good repair. This rule was based upon three cases in the Court of Exchequer, namely; ARDEN V. PULLEN, SUTTON V. TEMPLE and HART V. WINDSOR decided in the early 1840s.
Three Major Considerations as to the Covenant of Fitness and Repair
The first consideration, the doctrine of precedent: the existence of cases deciding that tenant must pay rent even when the premises were destroyed by such things as fire, flood or tempest. Prof. G. Williams criticise this consideration by saying that the cases relied upon by the Court were clearly capable of being distinguished upon the ground that they dealt with unfitness caused not by the landlord's failure to look after his property but by causes beyond his control. Further that cases like EDWARDS V. ETHERINGTON, SALISBURY V. MARSHAL, COLLINS V. BARROW, COWIE V. GOODWIN and SMITH V. MARRABLE (ante) which held the landlord to be under a duty of fitness were not followed.
NB: Reynolds says "the basis of the common law rule must then be said to be the clear policy ground of the other two considerations."
The second consideration is based on a belief in the social philosophy of caveat emptor. It was intended to avoid unwarranted interference with freedom of contract between the landlord and tenants. Per Baron Parke, "it is much better to leave the parties in every case to protect their interests themselves by proper stipulations." In essence, the judge was referring to the Laissez faire policy.
The third consideration; is a fear of the social consequences of finding such a duty to a landlord (i.e. social reality). The Industrial Revolution changed the English society from dependence upon an agrarian economy to industry. One consequence of this had been the growth of the urban population. Between 1801 and 1841, the populations of London, Birmingham, Leeds and Bristol had doubled whilst those of Manchester and Liverpool had trebled. As a result, speculative builders arose to satisfy the housing needs of the new urban population. Houses were built without drains or privies, inferior materials were used and water was often available for only short periods. It was at this crucial time of urbanisation and slum formation that judges looked to the agrarian lease as providing a justification for their decisions. It was intended to protect landlords from tenants as to the covenant of fitness and repair.
(ii) Exception to the general rule:
Furnished premises (a room or building with furniture and fittings).
In case of a furnished premise the duty to repair and to ensure that the premise is fit for habitation is placed on the landlord. At common law, a furnished dwelling premise must be fit for habitation at the start of the lease. A well-known breach of this implied covenant occurred in SMITH V. MARRABLE , where a house was leased and found to be full of bugs. In common law, if there is nothing expressed in the lease, a periodic tenant with a year's term or less period has to use the premises in "tenant-like manner". Lord Denning, MR in WARREN V. KEEN has shed light on that by giving examples that 'a weekly tenant' must, for example, clean windows and unblock sinks.
In short he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house.....But....if the house falls into disrepair through fair wear and tear or lapse of time or for any reason not caused by him, then the tenant is not liable to repair it.

B: The Position in England: Current Common law
The lease will normally set out exactly what the landlord (and tenant) has agreed to with regards to matters such as repair, insurance, maintenance of common areas, rights of access and renewal. However, certain covenants are implied into the lease by the law, because of the use of certain words which carry a particular meaning.
With regards to the quality of the premises, there is no implied warranty on the part of the landlord as to the condition of the premises demised, or their fitness for the purpose of the letting Southwark LBC v Mills . If the premises are taken for residential purposes, for example, there is no implied covenant that they are fit for human habitation (Southwark LBC v Mills, supra). Such terms may be contained within the lease or tenancy specifically. There is a very narrow exception to this rule which can be found in Smith v Marrable (supra). Where the premises are a furnished dwelling house, there is an implied condition in the letting of the premises that they are reasonably fit for habitation at the commencement of the term. Breach of this would entitle the tenant to quit the letting without notice. This has been confirmed in Wilson v Finch Hatton which related to defective drains, and in Collins v Hopkins concerning a recent occupant who had a contagious disease. There is no obligation for the tenant to give the landlord the opportunity to remedy the problem (Wilson v Finch Hatton, supra).
The rule is very limited in scope - it does not apply to ordinary disrepair which would make habitation unpleasant or inconvenient, rather than impossible (Maclean v Currie, involving cracked plaster). Neither does it apply to unfurnished premises (Hart v Windsor, supra), or to dangerous appliances/furnishings supplied in furnished premises by the landlord (Pampris v. Thanos the case involved the tenant's wife being electrocuted by a faulty fridge). The landlord may be negligent in such instances but the implied condition of fitness for human habitation is not relevant to such a scenario. Note that there may be an implied contractual duty of care for the landlord to maintain certain things - for example, common parts and facilities like lifts. These are not merely 'conveniences provided at discretion: they are essentials of the tenancy without which life in the dwellings, as a tenant, is not possible' (Liverpool CC v Irwin , in which Lord Salmon said "Can a pregnant woman accompanied by a young child be expected to walk up 15 storeys in the pitch dark to reach her home? Unless the law... imposes an obligation on the Council at least to use reasonable care to keep the lifts working properly and the staircase lit, the whole transaction becomes ...futile and absurd). Such a duty of care is again restricted and only extends to the tenant, not their family (Jones v Bartlett. Such an obligation may be excluded by express provision in the tenancy/lease (Liverpool CC v Irwin, supra).

C: The Position in Tanzania
The common law position is to some extent modified by the Land Act. Thus, the Tanzania position is different from that of the Common law; because first, the duty to repair in Tanzania is placed on the landlord to a large extent. Second, there is no such distinction as to furnished or unfurnished premises. Third, the landlord is statutorily bound to ensure that the demised premise is fit for human habitation (habitable premises) save where the exception lays. The only, similarity is that in case of short leases; the tenant is 'excluded from a duty to repair the demised premises [S.89 (2) Land Act]. Refer, Lord Denning, MR in WARREN V. KEEN, supra) for common law position.

REFER

The Land Act of 1999 (RE: 2002)

(a) Fitness and repair covenants on the lessor,

Section 88 (1) (b)(c)(d)(e)(i)-(iii)

(b) Fitness and repair covenants on the lessee,

Section 89 (1)(c)(i)-(iv), (d)(e)(f): In long term leases.

Section 89 (2): In short term leases. (see also, S.80)


Useful Link: www.scribd.com/jabashadrack

 

Prisoners’ Rights in Tanzania: MPs suggest conjugal visitation for our prisoners!


Kiangiosekazi Wa-Nyoka
The question of prisoners practising same sex while in prison was raised again in the ongoing parliamentary session when members of parliament were debating on the Minister of Home Affair's submission for the financial year 2012/13.
If you may remember sometimes in May the Parliamentary Standing Committee on HIV/AIDS that visited some of the prisons felt that excessive overcrowding of prisons could be the reason behind the thriving habit of unimaginable free sex in prison institutions.
According to the Deputy Chairperson of that Committee Honourable Rosweeter Kasuikila, the committee was touched with the appalling overcrowding where in one prison; a room with capacity holding of 40 prisoners was keeping 183 over and above its capacity.
They also found that remand prisoners staying for long periods in prisons needed to have contacts with their wives/husbands. However, they confirmed that due to their lust for sex, inmates are forced to practise same sex amongst themselves. This time, a Member of Parliament Honourable Msabaha suggested that prisoners should be allowed to have privacy with their spouses in what we professionally term it as "conjugal visitations."
In the normal way, this legislator was seen to be out of place just as in the same way someone would propose issuance of condoms to inmates. These proposals are outright opposed to our cultural values. With sodomy, a part of being a taboo, it is against the laws of this country.
All those two proposals, conjugal visits and issuance of condoms are not strange in correctional administration but in our case, it is unimaginable. However, not far from here, we have countries like Angola providing conjugal services to their inmates while South Africa, Mozambique and Lesotho do provide condoms to inmates.
They are convinced that though they would not like to accept it but it remains to be a fact that same sex practice does take part in prisons. Worse of it, this could be one source of spreading HIV/AIDS pandemic in prisons. They argue, "Should we allow HIV/AIDS pandemic to spread in our prisons at the facade of law?" This amounts to ostrich principle, burying the head in the sand living the whole body outside!
The conjugal issue is yet another controversial issue that could be ascribed as a luxury associated with the so called human rights. Inversely corrections have assumed new dimensions in terms of rights and privileges. With the advent of Human Rights culture, these privileges sometimes raise eyebrows to the taxpayer who is supposed to finance them. Are we ready to finance the conjugal visitation as it is done in other countries? Definitely this is not our priority. How can we go for conjugal services while we cannot adequately provide food for our prisoners? The prison ration is calculated at an average of one prisoner spending Tsh. 2,500 (about 2 USD) per day.
Undoubtedly the correctional fraternity has long-since valued the preservation of stable family and community ties as part of rehabilitation and social reintegration of offenders. Research has shown that a strong community support system is a vital element in the successful transition of offenders from incarceration back into community.
Arguably, the most important correctional tool to assist offenders in maintaining stable family relations is a visitation programme that allows for meaningful interaction with the significant persons in their lives. Visitation privileges have been linked to increased positive adjustment while incarcerated and lower recidivism rates upon release.
While many developed countries have adopted conjugal visitation programmes to further promote family relations however it has not been found that the benefits outweigh the disadvantages and financial cost to prison administrators, families of offenders and community.
However conjugal visitation is mostly advocated to assist the offender in maintaining strong family bonds yet the usefulness of the programme in promoting this goal has not been clearly established.
Conjugal visitation may be more beneficial to maintaining already functional families than addressing the needs of a dysfunctional family, which is often the case for families of incarcerated individuals. While disputable, the majority of programmes tend to place undue emphasis on the sexual aspect of relationship rather than promoting emotionally healthy relations, such as when families are involved in communal family visitation.
Clearly, conjugal visitation increases the risk of spreading sexually transmitted diseases by already identified high-risk population. While the prison administrator can provide education and means to practice safe sex, there is in inherent inability to ensure adherence to safe sex practices. Conjugal visitation requires administrators to give careful consideration on the legal liabilities in fostering sexual interaction among potentially infected offenders.
The most persuasive arguments against the implementation of the conjugal visitation is the disinclination of the public to accept programme that provide extra privileges to convicted felons at the cost to the taxpayer.
Honourable Msabaha specifically talked much on remand prisoners who spend long time in prisons; unfortunately such programmes of conjugal visits are not meant for those on the awaiting trial. It is for the already convicted prisoners as this is taken as part of their rehabilitation.
However it is encouraging that our members of parliament are very much conversant with the rights and privileges of inmates and hope not to hear again from them equating prisons to three star hotels.
That thinking of our members of parliament goes together with the modernity of the Tanzania Prisons Service, moving into a new phase of Correctional Science. In the same vein, hopefully in future they will come with a proposal of weekend imprisonment in collaboration with judiciary as an extra measure of alternative to imprisonment in dealing with overcrowding of prisons. Let's hope for that to come.

Daily News (Published on Saturday, 28 July 2012 at 02:38 hours):
http://dailynews.co.tz/index.php/columnists/columnists/7952-mps-suggest-conjugal-visitation-for-our-prisoners

Right of the People to Impeach President in a Referendum: Romanians vote on Impeachment of President


The people of Romania are voting in a referendum on whether to impeach centre-right President Traian Basescu.


Mr Basescu has already been suspended by parliament in a series of moves that have caused alarm among Romania's EU partners. The centre-left government accuses Mr Basescu of exceeding his authority and of meddling in government affairs. Mr Basescu denies the accusations and has urged a boycott of Sunday's referendum. Under Romanian law, more than half the electorate
will have to vote to make the result valid.


BBC Central Europe correspondent Nick Thorpe says the referendum is one of the fiercest political clashes in Romania since the return of democracy in 1990. The result is hard to predict but will have long-term repercussions for Romania's political and economic stability, he says.
The row has paralysed political decision-making in Romania at a time when it is finalising agreements on an IMF-backed aid package. Mr Basescu's popularity has slumped since he backed tough austerity measures demanded by Romania's international lenders.

EU concern:

According to the latest polls, about 65% of the electorate wants to remove Mr Basescu. However, analysts say the government will struggle to achieve the required turnout.

Mr Basescu had initially urged Romanians to vote "no" to what he called "a coup", but later asked his supporters to boycott the vote altogether, a stance also adopted by the opposition Liberal Democrats. If he is impeached, a presidential election must be held within three months.
Earlier this month, European Council President Herman Van Rompuy voiced "deep concerns" about the political crisis in Romania "with regard to the rule of law and the independence of the judiciary".

Romania and neighbouring Bulgaria joined the EU in 2007, but Brussels has put both countries under special monitoring because of concerns about judicial independence, corruption and political influence in state institutions.

Source: BBC News Europe (29 July 2012):
http://www.bbc.co.uk/news/world-europe-19034173

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.

FATMA A. KARUME: “The Limit of Government is determined by the Law” (Freedom of Association in Tanzania)


Fatma A. Karume
Upon arriving at work, as I was scanning the newspapers of the day, my attention was caught by a short article in the Citizen of 18 July 2012.

The article was 4 paragraphs long and hidden in a corner of one of the inner pages. Clearly used as a page-filler, a little tittle-tattles of not much relevance. I would have ignored it entirely but for the headline, "RC slaps ban on political rallies", which immediately made me curious and I could not stop myself from reading the article in its entirety.

According to the article, a lady called Dr. Rehema Nchimbi, the Regional Commissioner of Dodoma, has apparently taken it upon herself "to ban political rallies and other gatherings during the census week". The article proceeded to recount that Dr. Nchimbi announced the ban whilst addressing a seminar for training enumerators and census coordinators in Dodoma.

During her reported address, Dr. Nchimbi explained the rationale for her ban by stating "I am saying this because some politicians act like children who think that every open ground is for playing. I don't want the housing and population census to fail in my region because of politicians".

I personally take no umbrage to the RC's criticism of politicians although if truth were known I found some amusement in the fact that she owes her very position to the absolute discretion of a politician and thankfully not the very voting public, whose freedom of expression she is attempting to curtail. She is most welcome to her opinion on politicians and she can express it as freely as she so wishes, after all article 18 of the Constitution of the United Republic of Tanzania guarantees this right. Furthermore, article 20 of the Constitution also guarantees Dr. Nchimbi's right to express her views publicly as she clearly chose so to do on this occasion.

However, as for banning political rallies and other public gatherings, I do wish that Dr. Nchimbi would do us all a favour and respect the people of Dodoma's article 20 Constitutional right to freely and peaceably assemble, associate and cooperate with other persons. Being somewhat concerned that the Regional Commissioner with little patience for politicians, may not be aware of this right I thought I should take some time to explain it. In so doing, it is my hope that her reported disdain for politicians is not transferred to lawyers.

We should commence by understanding that after the end of World War Two, on 10 December 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights, which recognised internationally that all human beings have fundamental rights, which are inalienable and must be protected by the law.

The UDHR is the foundation of many national laws, giving cognisance and protection to basic human rights. In 1977, the Constitution of the United Republic of Tanzania was enacted without the Bill of Rights. It was not until 1984 that our basic human rights were protected in the form of a Bill of Rights included in Part III of the Constitution.
Articles 18 and 20 of the Constitution, which guarantee our inalienable right to freedom of expression and peaceful assembly respectively, are a reflection of the fundamental rights recognised by the UDHR in articles 19 and 20.

As with all fundamental rights there are limits of course to these rights and governments all over the world have tried to use the law in order to set limits. When these limits are excessive, a struggle between the governed and the executive will ensue as a matter of course. In functioning democracies with effective judiciaries, the struggle inevitably culminates in a court case and it is for the judiciary to set down principles, which must be applied and adhered to by the executive and the legislature when attempting to impose limits on our fundamental rights. In authoritarian or totalitarian states, the judiciary neither have the appetite, gumption nor possibly the legal obligation to involve themselves in this struggle and where they do dare, judges quickly find themselves unemployed. Fortunately, history shows that with time, even where the judiciary fails and fear and force is used to stifle fundamental human rights, the human spirit is never stifled for a prolonged period.

My view has always been and hopefully even with encroaching age and accompanying conservatism, will remain, that the more stringent the limits which a state imposes on fundamental rights, the less effective are these rights and the more the state veers towards authoritarianism/totalitarianism.
Therefore, it is essential that we think very carefully before we decide where to draw the line beyond which these rights cease. There is no universal test which when applied will provide the perfect place to draw a line beyond which all fundamental rights cannot penetrate.

The limitations to place on each one of our guaranteed basic rights is a matter that will have to be decided by the judiciary on a case by case basis after a thorough examination of judicial approaches in other countries and an uncompromising review of the law drafted by the executive and passed by the legislature, which attempts to curtail the right in question. As jurisprudence in Tanzania develops, I hope that great thinkers will have the opportunity and will not shy away from the duty and challenge of applying their minds to this conundrum, as the late Judge Lugakingira did in the case of Mtikila v. Attorney General [1995] 31 TLR.

Until 1995, section 40 of the Police Force Ordinance, prohibited public assembly or procession without a police permit. The process for obtaining the permit was long and cumbersome. Rev Mtikila feeling aggrieved by this law filed a case before the High Court of Tanzania and asked the Court to declare it unconstitutional because it prohibited Tanzanians from exercising their constitutional right to freedom of assembly by making this right subject to permission from the police. Judge Lugakingira agreed with Rev. Mtikila and held section 40 of the Police Ordinance unconstitutional. However, the judge set a limit to our fundamental right to public assembly by stating that this right can be curtailed where the "assembly or procession is imminently likely to cause a breach of the peace, or to prejudice the public safety or the maintenance of public order or to be used for any unlawful purpose".

Following the judgment of the High Court, the Police Force Ordinance was amended and thankfully we no longer need to seek a police permit in order to exercise our right to public assembly. In addition, the Police Force Act gave the police power to prohibit public assembly only where such assembly or procession is clearly likely to cause a breach of the peace or is intended to cause a breach of the peace. This seems quite reasonable and sensible.

It may help the citizens of Dodoma to know that the power to prohibit an assembly rests with the police and this power is limited and can only be exercised legally where the assembly is imminently likely to cause a breach of the peace. Neither the RC nor the Police have the legal power to prohibit all public assemblies in the distant future, on the spurious ground that they interfere with the census process, even if the RC thinks that these assemblies will in all probabilities be called by "childish" politicians. In any event, I fail to see how a bit of peaceful public demonstration no matter how childish it may be, can have an impact on the census.

Gosh, spurred on by this logic and what may be a genuine desire to ensure an accurate head count, overzealous RCs may take it upon themselves to ban us from leaving our homes during the census. After all, what does it matter if this may amount to unlawful imprisonment, so long as the census is a success. Well now that I have rained on the RC's parade, I am on a roll and I simply cannot stop here.
In his book, "The Judge", Patrick Devlin, a judge of the House of Lords, stated, "The limit of government is determined by the law". We ignore this at our peril. The law limits even executive powers, and members of the executive have to abide by the law, if rule of law is to prevail.

The recognition that Tanzanians have fundamental rights as individuals was an idea that only blossomed some 20 years after independence. During the first 20 years of our nationhood, our individual rights were subjugated to the "need of the collective", and to insist upon your right to recognition as an individual was almost sacrilegious and was dubbed "anti-African" in particular contrary to the "ujamaa" ethos. We are still bound by this mind set.
The problem of course is who then determines the needs of the collective. Invariably it is an individual or a clique. So the rights of the individual are subjugated to the needs of the collective, which in turn are determined by the views of an Individual or a clique. Ultimately, the collective is just an excuse used by those in power, to curtail the rights of the individual.

The RC may believe that she has the power to ban public assemblies and processions and that in itself is not the problem, for so long as she is the only person convinced of her own might then there is little impact that she can have on alienating this fundamental and constitutionally protected right. The problem occurs when the police and the majority of the general public believe in her self-assumed powers, for it is then that we become prisoners of our ignorance and not the law.

I have a dear American friend who was once told in my presence by a man of some political and legal influence to keep quiet and not discuss publicly a certain matter.
Her immediate reaction was "Sir, you cannot tell me that. You see, I am an American and as such I hold dear my First Amendment Right to free speech. To an American there is nothing worse you can do than to curtail the First Amendment right to free speech". This was an automatic reaction, which was met with no resistance but rather a friendly pat on the back followed by "Yes of course" and a large guffaw of laughter.

As I stood there watching my American friend laughing with the man of some importance, it dawned on me that Americans are brought up confident in the knowledge that they have basic rights, which Congress or Government cannot alienate. On the other hand, we in Tanzania have some fundamental rights no different from those enjoyed by Americans but we simply do not know that they exist and thus cannot possibly insist that the legislature and government respect them.

On the other hand those few who know of their existence and dare to look in the eye a person in authority and proclaim that as citizens of this country they are endowed with constitutionally guaranteed fundamental rights, risk being dubbed arrogant troublemakers and far too westernised for the good of this African society. So I ask, are knowledge and confidence traits reserved for Westerners to be admired by Africans but never acquired?

It is essential that those of us who are fortunate enough to know our fundamental rights and are confident enough to lay claim to them inform as many Tanzanians as possible of these rights. May be one day, a person who states publicly in Tanzania that she has banned political rallies and other gatherings will be told, "Madam, you do not have the power to ban peaceful political rallies.

I am a Tanzanian and as such I hold dear my Constitutional Right to Freedom of Assembly. To a Tanzanian there is nothing worse you can do than to curtail the fundamental human rights guaranteed by the Constitution". If enough of us truly believe this and can say it without fear but with conviction, then we shall not be met with police batons but rather by the words "Yes of course", followed by an embarrassed laugh.


 Source: The Guardian on Sunday (IPP Media):
http://www.ippmedia.com/frontend/index.php?l=44181

Freedom of Worship and Conscience in Tanzania: Hamisi Rajabu Dibagula v. The Republic, criminal appeal 53 of 2001


Court of Appeal, 14 March 2003
(Samatta CJ, Mroso J and Munuo J)

This is an appeal from a decision of the High Court (Chipeta, J, as he then was) affirming, while exercising revisional jurisdiction, a conviction for uttering words with the intent to wound religious feelings. The appellant, Hamisi Rajabu Dibagula, had been convicted of that offence by the District Court of Morogoro, which sentenced him to 18 months' imprisonment. The learned Judge set aside that sentence and substituted therefore such sentence as was to result in the immediate release of the appellant from custody. The appeal raises one or two questions of considerable public importance concerning the limits, if any, of the right to freedom of religion, guaranteed under article 19 of the Constitution of the United Republic of Tanzania, 1977, hereinafter referred to as 'the Constitution'.

It is necessary, before we embark upon the task of examining the merits or otherwise of the appeal, to state the facts of the case. They are, happily, uncomplicated. They may, we think, be outlined as follows. In the afternoon of 16 March 2000, the appellant, a member of an Islamic organisation known as Almallid, and some of his colleagues organised a religious public meeting at Chamwino in Morogoro town. They had secured a 'permit', issued by the police officer commanding [the] district, to organise the meeting. Acting on some information he had received from a member of the public, the regional CID officer of Morogoro region proceeded to the place where the meeting was taking place. He found the appellant addressing the meeting. At that point in time the appellant was saying 'Yesu si Mwana wa Mungu, ni jina la mtu kama mtu mwingine tu' [translation: Jesus is not the son of God, it is a name like any other].


The CID officer had no doubt that the utterance constituted a criminal offence under section 129 of the Penal Code. He proceeded to arrest the appellant (his colleagues took to their heels and vanished into thin air) and took him to a police station. Four days later the appellant was taken before the District Court where a charge under the aforementioned section was laid at his door. It was alleged in the particulars of offence that the appellant on the 16th day of March 2000 at about 18.00 hrs at Chamwino area within the Municipality, District and Region of Morogoro, with deliberate intention did utter words to wit
YESU si mwana wa MUNGU bali ni jina, words which are wounding (sic) the religious feelings of Christian worshippers.


Section 129 of the Penal Code provides:

Any person who, with the deliberate intention of wounding the religious feelings of any person, utters any word, or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, is guilty of a misdemeanour, and is liable to imprisonment for one year.

The appellant protested his innocence. He denied to have preached 'against the Christian religion'. One Athuman Abdallah, his only witness, told the trial magistrate that the appellant had urged non-Muslim to embrace Islamic faith and pronounce that Jesus Christ is not the Son of God. At the end of the trial the learned magistrate entertained no doubt of reasonable kind that the evidence laid before her proved the appellant's alleged guilt. After entering a conviction, as already pointed out, she sentenced the appellant to 18 months' imprisonment. The High Court, upon becoming aware of the decision, and in exercise of its powers under section 372 of the Criminal Procedure Act, 1985, hereinafter referred to as 'the Act', called for the record of the case for the purpose of satisfying itself as to the correctness of the decision. The Court later proceeded to conduct a revisional proceeding in respect of the case. Only the Director of Public Prosecutions was given opportunity to be heard at that proceeding. At the end of it the learned Judge was satisfied that the appellant has been rightly convicted. He was, however, of the opinion, a correct one in our view, that the sentence of eighteen months' imprisonment was illegal because it exceeded the maximum sentence of twelve months' imprisonment fixed by law for the offence. He set it aside and, as already stated, substituted therefor such sentence as was to result in the appellant's immediate release from custody. Consequently, the appellant regained his personal liberty. He believed, however, that the learned Judge's decision did not constitute a complete triumph for justice. Hence the instant appeal.

The learned Judge's decision is impugned on the following five grounds:
(1) The revising Judge erred in law and in fact by holding that the prosecution in [the] Lower
Court did prove its case beyond reasonable doubt.
(2) The revising Judge erred in law by agreeing with the submission of the State Attorney that the Prosecution in the trial Court proved the case beyond reasonable doubt without valuating the evidence tendered in the lower court and assigning reasons therefor.
(3) The revising Judge erred in law by not considering the fact that the nature of the offence the
Appellant was convicted of presupposes the existence of a person who was directly wounded by the words uttered by the Appellant or that the prosecution should be able to prove who and how a person would have his feelings injured.
(4) The revising Judge erred in law in embarking on revisional proceedings in the presence of the Republic but in the absence of the accused person whose legal interests were being looked into by the court.
(5) The court erred in law by holding that there was a judgment of the trial Court while in fact the so-called judgment was in law not judgment.
Speaking through his advocate, Mr Taslima, who was assisted by Prof Safari, the appellant has strongly urged us to quash his conviction. Mr Mlipano, State Attorney, declined to support it.

Is Jesus Christ the Son of God? Millions of persons would sharply disagree as to the correct answer to this question. Some would entertain no doubt whatsoever that an answer in the affirmative is the correct one; to others, 'No' would, without the slightest doubt, be the correct answer. Whichever is the correct answer, the question is a purely religious one and, therefore, cannot fall for determination by a court of law. It is not, therefore, one of the questions which the instant appeal can possibly answer. The pivotal issue before us is whether merely making an utterance in the hearing of another person that Jesus Christ is not the Son of God constitutes a criminal offence under section 129 of the Penal Code.

Before we proceed to examine the merits or otherwise of the arguments addressed to us by the learned advocates, we deem it useful to state some of the general principles governing the enjoyment of the freedom of religion in this country. The right to that freedom is guaranteed under Article 19 of the Constitution, which reads:
(1) Every person has the right to the freedom of thought or conscience, belief or faith, and choice in matters of religion, including the freedom to change his religion or faith.
(2) Without prejudice to the relevant laws of the United Republic the profession of religion, worship and propagation of religion shall be free and a private affair of an individual; and the affairs and management of religious bodies shall not be part of the activities of the state authority.
(3) In this Article reference to the word 'religion' shall be construed as including reference to religious denominations, and cognate expressions shall be construed accordingly.
The freedom enshrined in this article includes the right to profess, practise and propagate religion. Since profession, practice or propagation of religious faith, belief or worship is also a form or manifestation of a person's expression, it must be correct to say, as we do, that freedom of religion is also impliedly guaranteed under article 18(1) of the Constitution. That freedom, like other freedoms, is not an absolute right. The exercise of it, just as the exercise of other freedoms, is subject to the requirements of public peace, morality and good order, which are requisites of the common good of society. As was pointed out by the Supreme Court of India in The Chairman, Railway Board and Others v. Mrs Chandrima Das and Others, I SCR 480, at 501-502, primacy of the interest of the nation and security of state must be read into every provision dealing with fundamental rights. The freedom to transmit or spread one's religion or to proselytise has to be exercised reasonably, that is to say, in a manner which recognises the rights, including religious rights, of other persons. It must be exercised in a manner which demonstrates respect for the freedoms of persons belonging to other religions, atheists and agnostics. In a human society, rights may be in conflict; they must, therefore, be subject to law.

As far as human rights and freedoms are concerned, this legal position is succinctly stated in article 30(1) of the Constitution, which provides:

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.

Having stated these principles, we propose now to deal with the arguments addressed to us. But before we do so, we desire to observe that the charge which was laid at the door of the appellant in this case was not a model of accuracy or elegance in charge drafting. Some vital words of section 129 of the Penal Code concerning mens rea were omitted from the particulars of offence. It leaps to the eye that the words 'of wounding the religious feelings of any person' are missing there. Did this omission occasion any miscarriage of justice? We think not. First, the wording of the statement of offence, section and law in the charge reasonably informed the appellant of the requisite mens rea of the offence he was charged with. Secondly, judging from the tenor of his defence during cross-examination of the regional CID officer and PW 4, D/Cpl Zeno, and his own testimony, it is patently clear that the appellant was aware that it was the case against him that, in uttering the alleged words, his intention, a deliberate one, was to wound the religious feelings of those hearing him. 

Rightly, his counsel before this Court did not appear to think that any arguable point arose from the omission.
Having made that observation, we proceed to deal with the first ground of appeal. It was forcefully contended by Mr Taslima that the learned Judge erred in law because, as the learned advocate put it, he did not direct himself on the vital question of mens rea in the case. The learned advocate went on to submit that even the learned trial magistrate did not address her mind to that issue. Mr Taslima draw our attention to Surah 9:88-91 of the Qur'an, and then proceeded to submit that when he told his audience that Jesus Christ is not the Son of God the appellant was doing no more than preaching his religion. The four verses read as follows:
88. They say: The Most Gracious
Has betaken a son!
89. Indeed ye have put forth
A thing monstrous!
90. At it the skies are about
To burst, the earth
To split asunder, and
The mountains to fall down
In utter ruin,
91. That they attributed
A son to The Most Gracious

With respect to the learned Judge, we are clearly of the opinion that Mr Taslima's criticisms are unanswerable. No offence is committed under section 129 of the Penal Code where the deliberate intention of the perpetrator of the alleged misconduct was other than wounding the religious feelings of those on the scene. 

Neither the learned trial magistrate nor the learned Judge appears to have addressed her/his mind to the question of mens rea in this case. In the course of her judgment the learned trial magistrate said:
In this case [there is] no dispute that the accused person was at Chamwino preaching Islamic religion. The questions in this case are:

1. Whether the accused got permit to preach.
2. Whether the accused used abusive words to abuse (sic) another religion.

Nowhere in the judgment is there evidence which shows that the learned trial magistrate was aware that the prosecution had the onus to prove that the appellant had the deliberate intention to wound the religious feelings of those within the hearing range. The issues she posed were clearly irrelevant. She made no attempt to consider, among other things, whether, in making the utterance complained against, the appellant did more than exercise his constitutional right to freedom of religion. The learned Judge, on his part, discussed the validity or otherwise of the conviction only in three sentences, two of which are fairly short, when he said:

I now turn to the case at hand. I respectfully agree with the learned state attorney that the prosecution's evidence proved the offence against the accused beyond reasonable doubt. The conviction, therefore was justified.

The learned Judge's attention was apparently not drawn to the need for him to be satisfied that the requisite mens rea was proved in the case. We have examined the record of the case with great care and have found neither direct nor circumstantial evidence to justify the conclusion or inference that the deliberate intention of the appellant when he uttered the words in question was to wound the religious feelings of those who were to hear him. On the contrary, the evidence clearly demonstrates, in our opinion, that the appellant was, at the material time, on a mission to propagate his religion, Islam. At the time the regional CID officer arrived at the public meeting the appellant was merely repeating what the Quar'an unequivocally states in several surahs, including Surah 19, which we have already quoted from, and Surah 5, which, again, Mr Taslima drew our attention to. 

Verse 75 of that Surah reads:

Christ the son of Mary
Was no more than
A Messenger: many were
The Messenger that passed away
Before him ...

It is neither possible nor desirable to list all situations which may manifest the deliberate intention of wounding religious feelings. That intention may be manifested by the speaker declaring it in so many words, or by the circumstances surrounding the making of the utterance, sound or gesture. If, for example, a non-Christian were to preach in church grounds that Jesus Christ is not the Son of God, or if he were to interrupt a Christian appellant made the utterance, and the nature of the meeting had, among other things, to be taken into account in determining what the appellant's deliberate intention was.
The provisions of section 129 of the Penal Code were not intended to, and do not, frown upon sober or temperate criticisms of other persons' religions even if those criticisms are made in a strong or powerful language. It should always be remembered that what is regarded as truth in one religion may not be so regarded in another. Even if some sections of society consider the spreading of certain religious messages, in an area where those messages are taken too be unwanted, as being an irresponsible, insensitive or provocative action it would not constitute a violation of section 129 of the Penal Code to spread those messages there if the deliberate intention of the speaker was to propagate his religion or religious views, and not to wound the religious feelings of those hearing him. The enactment of the provision was not intended to license an unreasonable abridgment or restriction of the right to propagate one's religion or religious views. It was primarily intended to safeguard public order. Freedom of religion is not so wide as to authorise the outrage of religious feelings of others, with a deliberate intention.

For the reasons we have given, we agree with Mr Taslima that in this case the prosecution failed to prove the requisite mens rea. Consequently, we find merit in the first ground of appeal. These findings are sufficient to dispose of the appeal, but, bearing in mind the novelty and importance of the case, we deem it useful to deal with the other grounds of appeal, albeit briefly in each case.

We proceed, therefore, to examine the merits or otherwise of the second ground of appeal. It was the contention of Mr Taslima here that the learned Judge erred in law in not evaluating the evidence laid in the scales at the trial and assigning reasons for agreeing with the findings arrived at by the learned trial magistrate. 
We have no doubt that this complaint has merit. We have already pointed out, when dealing with the first ground of appeal, that the learned Judge, when he turned to a consideration of the validity or otherwise of the appellant's conviction, merely said that he agreed with the learned state attorney's submission that the prosecution had proved their case beyond reasonable doubt. He made no attempt to consider how the evidence proved each ingredient of the offence the appellant was convicted of, and he gave no reasons for holding that the learned state attorney's submission was well-founded. The necessity for courts to give reasons cannot be over-emphasized. It exists for many reasons, including the need for the courts to demonstrate their recognition of the fact that litigants and accused persons are rational beings and have the right to be aggrieved. And as was pointed out by MK Mukherjee, J, in Rupan Deol Bajaj and Another v Kanwar Pal Singh Gill and Another [1995] Supp 4 SCR 237, at 258, 'Reasons introduce clarity and minimise chances of arbitrariness'.

Nowhere in his judgment in the instant case does the learned Judge appear to have noted that not only did the learned trial magistrate frame irrelevant issues but she also made no attempt to discuss those issues. Bearing in mind what we have said, we are driven to the conclusion that the complaint in the second ground of appeal has merit. That conclusion brings us face to face with the third ground of appeal.
This ground of appeal can, we hasten to think, be dealt with very briefly. It was Mr Taslima's submission that to prove a charge under section 129 of the Penal Code the prosecution must adduce evidence from someone whose religious feelings were wounded by the alleged utterance, sound or gesture, to the effect that his said feelings were wounded. We can find no warrant for thinking that there is merit in this contention. It would be doing great violence to the language of the section to hold that such proof is required. It is enough if it is proved that the accused's deliberate intention was to wound someone's religious feelings. Of course, if a witness testifies that his religious feelings were wounded, and eventually the charge is proved beyond a reasonable doubt, the proof of wounding may be relevant in the assessment of sentence to be imposed on the accused. The offence is complete once the utterance is made. It follows that, in our opinion, Mr Taslima's argument is misconceived in law.

We turn now to the fourth ground of appeal. As will be recalled, the criticism here is that the learned Judge denied the appellant the opportunity to be heard when the revisional proceeding was conducted. It was contended by Prof Safari, on behalf of the appellant, that the omission to give him that opportunity violated the provisions of article 13(6)(a) of the Constitution and section 373(2) of the Criminal Procedure Act, 1985The constitutional provision reads as follows:

(6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles:
(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 the court or of the other agency concerned; ...

In order to grasp fully what is prohibited by subsection (2) of section 373 of the Act, it is necessary, we think, to quote the preceding subsection of the section also. This is how the two subsections read:

(1) In the case of any proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High court may (a) in the case of conviction, exercise any of the powers conferred on it as a court of appeal by sections 366, 368 and 369 and may enhance the sentence; (b) in the case of any other order other than an order of acquittal, alter or reverse such order, save that for the purposes of this paragraph a special finding under subsection (1) of section 219 of this Act shall be deemed not to be an order of acquittal. (c) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence; save that an order reversing an order of a magistrate made under section 129 shall be deemed not to have been made to the prejudice of an accused person within the meaning of this sub-section.

In the instant case it is not in dispute that the learned Judge conducted the revisional proceeding in the absence of the appellant, who was given no opportunity to be heard in his own defence. There can be no doubt whatsoever that the omission to provide that opportunity to the appellant was a very serious error. It offended the provisions of sub-section (2) of section 373 of the Act we have quoted a short while ago. The decision of the learned Judge affirming the conviction did in the circumstances prejudice the appellant. Very rightly, Mr Mlipano, the learned state attorney, conceded before us that the learned Judge's error is fatal to his decision.

The importance of the right to be heard has been commented upon by many eminent judges over the centuries. Nearly three centuries ago, in R v University of Cambridge, 1723, 1 Stra 557, cited with approval by Megarry, J, in John v Rees and Others, [1969] 2 All ER 274, Vortescue, J, used the following celebrated words to emphasise the importance:

The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion that even God himself did not pass sentence upon Adam before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve also.

We are satisfied, for the reasons we have given, that there is merit in the complaint in the fourth ground of appeal. Finally, we proceed to deal with the fifth ground of appeal. It was submitted on behalf of the appellant that no judgment was in law delivered by the learned magistrate in this case. It is common ground that although she framed two issues in the case, she dealt with only one of them, and the one which was considered was dealt with perfunctorily. Another criticism levelled at the learned trial magistrate's judgment is that it scarcely contained any reasons justifying the final conclusions arrived at on the case. We have already discussed the importance of giving reasons in decision making. We will not revert to that point. We will confine ourselves at this stage to determining whether the learned trial magistrate fully complied with the requirements of section 312(1) of the Act, which reads:

Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act, be written by, or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by such presiding officer as of the date on which it is pronounced in open court.

While we are hesitant to travel the whole distance with counsel for the appellant and say that the judgment delivered by the trial court in this case is no judgment in law, we have no hesitation in holding, as we do, that the said judgment did not sufficiently meet the requirements of the subsection we have just quoted. We wish to draw attention to what this Court said in (1) Lutter Symphorian Nelson v. (2) The Hon Attorney General. (3) Ibrahim Said Msabaha, Civil Appeal 24 of 1999 (unreported) on what a judgment should contain:
... A judgment must convey some indication that the judge or magistrate has applied his mind to the evidence on the record. Though it may be reduced to a minimum, it must show that no material portion of the evidence laid before the court has been ignored. In Amirali Ismail v Regina, 1 TLR 370, Abernethy, J, made some observations on the requirements of judgment. He said:

'A good judgment is clear, systematic and straightforward. Every judgment should state the facts of the case, establishing each fact by reference to the particular evidence by which it is supported; and it should give sufficiently and plainly the reasons which justify the finding. It should state sufficient particulars to enable a Court of Appeal to know what facts are found and how'.

The failure to comply with the relevant statutory provisions as to the preparation of a judgment will be fatal to a conviction where there is insufficient material on the record to enable the appeal court to consider the appeal on its merits: see Willy John v R (1956) 23 EACA 509. In the instant case the learned Judge erred, in our opinion, in not holding that the learned trial magistrate's judgment fell short of meeting the requirements of section 312(1) of the Act. We have clearly demonstrated, we think, that the learned Judge should not have affirmed the appellant's conviction and that, therefore, this appeal must succeed. We desire, before we make resultant orders, to make two observations.

The first one concerns revisional powers. No one can doubt the usefulness of these powers, but they should be exercised in appropriate cases. Save in cases where justice requires an obviously improper conviction or illegal sentence to be at once quashed or rectified, revisional powers should not be exercised before inquiry has been made whether an appeal has been or is likely to be lodged: see (T) Lobozi s/o Katabaro v R, (1956) 23 EACA 583. In the instant case the revisional proceeding was conducted before the expiry of the period within which an appeal against the district court's decision could be lodged. On August 6, 2001, the appellant had, through the officer-in-charge of Morogoro Prison, given a notice of appeal. No inquiry appears to have been made as to whether an appeal was likely to be lodged. This should have been done.

The second matter we desire to comment upon is religious intolerance. Religions can, and should, be a solid foundation of peace. In countries where they have not been given a chance to play that vital role, they have launched many wars, caused endless streams of blood and rolling of thousands of heads. Religious intolerance is a vice which must not be permitted to find a place in the hearts of our people. It must be repressed by every lawful method. When a person embracing a religious faith or view is told by another person, whose religious faith or view is different, something concerning religion which he considers to be untrue, he should be able to answer him by echoing the wise words of Voltaire, the 18th century French philosopher:
'I disagree profoundly with every word that you say but I shall defend unto the death your right to say it'. In the holy books of almost all major religions in the world one finds passages directly or indirectly exhorting people to religious tolerance. In the Qur'an, for example, there are the following verses, in Surah 109:

(1) Say (O Muhamad to these Mushrikun and Kafirun): 'O A1-Kafirun (disbelievers in Allah, in His Oneness, in His Angels, in His Books, in His Messengers, in the Day of Resurrection, and in AI-Qadar)!
(2) I worship not that which you worship,
(3) Nor will you worship that which I worship.
(4) And I shall not worship that which you are worshipping.
(5) Nor will you worship that which I worship.
(6) To you be your religion, and to me my religion.

The Constitution of the United Republic of Tanzania and other relevant laws oblige the people of this country to live together with mutual respect and tolerance. It is one of the principal obligations of good citizenship.
For the reasons we have given, we allow the appeal, quash the conviction and set aside the sentence imposed thereon.

NB: the Case is also reported in (2003) AHRLR 274 (TzCA 2003).

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