High Court says it has no powers to define CA limits

Dar es Salaam. 

The High Court ruled yesterday that it has no mandate to determine the nature and extent of changes the Constituent Assembly may make to the draft constitution.

The ruling was delivered by a panel of three judges comprising justices Augustine Mwarija, Aloyce Mujuluzi and Fauz Twaib in a petition filed by journalist Saed Kubenea, who sought the court’s interpretation of the assembly’s power.

They said review of the draft was essentially a political rather than legal question.

The panel further said that the Assembly to improve or amend the draft constitution and the functions of the now-disbanded Constitutional Review Commission (CRC) were limited only by national values and ethos provided for in Section 9(2) of the Constitutional Review Act.

“The Court has no mandate to determine the nature and extent of the improvement or amendment that the Constituent Assembly may make to the draft constitution as that is essentially a political rather than a legal question as long as the said improvements do not contravene the provisions of Section 9(2) of the Act,” the panel ruled.

Mr Kubenea, through his advocate, Mr Peter Kibatala, wanted the court to give clarification on whether the assembly could strike out proposals contained in the Second Draft Constitution tabled by the CRC.

The petitioner sought interpretation of the provisions of Section 25 (1) and Section 25 (2) of the Constitutional Review Act on whether the assembly powers to alter the contents of the Second Draft Constitution as presented to it by the CRC and to what extent.

According to the ruling by the panel, there is an ambiguity and inconsistency in the English version of Section 25 (2) of the Constitutional Review Act, Cap 83 Revised Edition 2014.

Speaking after the ruling, Mr Kibatala said they were happy with the ruling.

He added, however, that the court did not explain the limits to which the assembly could amend the draft constitution outside the provision of Section 9(2) of the Constitutional Review Act.

For his part, Deputy Attorney General George Masaju said the court performed its duty interpreting provisions of the law as requested.

An almost similar matter filed by the Tanganyika Law Society (TLS) is pending in the High Court.

TLS is seeking interpretation of the legality of the Constituent Assembly in the wake of sharp divisions among members over the manner in which amendments to the second draft were being made.

Source: The Citizen