Julius Ishengoma Francis Ndyanabo v.

Attorney General
Court of Appeal (Corum: Samatta C.J. Kisanga and Lukagakingira JJA)
Civil Appeal No. 64 of 20

Constitutional Law-fundamental rights-access to justice- cardinal safeguard against

violations-whether mere filing of pleadings and payment of requisite court fees
constitute access to justice-whether include right to present one’s case or defence
before courts.

Constitutional law-fundamental rights- access to justice-limitation-legislation to be clear

Constitutional-limitations not to be arbitrary, unreasonable and disproportionate to any
claim of State interest- fundamental rights-justification- onus on person supporting
restriction or exclusion clause to justify it

Constitutional Law-fundamental rights- access to justice-limitation- limitation in s.

111(2) of the Elections-whether discriminatory against indigent petitioners-
discrimination in Article 13(5) of the Constitution-whether applied to juristic persons
and collective bodies.

Constitutional Law-fundamental rights- litigation- costs- whether to be weighed in

scales against each other- whether misuse justifies closing of doors of justice

Constitutional Law- interpretation-“discriminate”- Article 13(5) of Constitution-whether

intended to relate to natural persons only-whether embraces juristic persons and
collective bodies.

Statutory interpretation-legislation- presumption of constitutionality- proof of

unconstitutionality- whether construction to make legislation operative and not
inoperative.

Statutory Interpretation-legislation-rules-whether rules can repeal or contradict express

provisions in Act -effect of Act passed subsequent to making of rules-whether to
 prevail- inconsistency- s. 111(2) of the Elections Act 1985 and Rule 11(3) Rule 11(3)
of the Election (Election Petitions) (Amendment) Rules 1981- whether indigent
petitioner denied access to justice-whether High Court could prevent or mitigate the
rigors of subsection

Statutory interpretation- repeal-effect- whether effect of repeal of Rules 11(3) and (4)
of Election (Election Petitions) Rules by Elections Act s.111 (1) effectively classified
those aggrieved by results of parliamentary election and with right to file petition into
two distinct groups-classification or differentiation to have rational nexus to object
legislation seeks- whether Article 13 of Constitution forbade class legislation and not
reasonable classification- whether s. 111(1) of Elections Act class legislation, arbitrary
and more than reasonably necessary to achieve objective of preventing abuse of
judicial process.

This was an appeal from the decision of the High Court (Kyando, and Ihema JJ, Kimaro J.
dissenting), dismissing a petition filed by the appellant for a declaration that S. 111(2), (3)
and (4) of the Elections Act 1985 was unconstitutional for violating Article 13(1), (2), and
6(a) of the Constitution.

In a general election held in October 2000, the appellant, an advocate by profession,

contested the Parliamentary seat in Nkenge Constituency. He lost the election according
to the election results. He was aggrieved by the results and in accordance with s 111(1) of
the Elections Act; he filed a petition before the High Court, challenging the validity of the
declared victory of one of his opponents in the election. The hearing date was not fixed
because the appellant had not paid the requisite security for costs of shs. five million in
respect of the proposed election, in accordance with s. 111(2) of the Electoral Laws
(Amendment) Act, 2001.

The appellant decided instead, to file, under Article 30(3) of the Constitution and S.4 of
the Basic Rights and Enforcement Act, 1994, a petition challenging the constitutionality of
the subsection and praying for a declaration that the said statutory provision was
unconstitutional on the ground that it was arbitrary, discriminatory, and unreasonable.
The majority decision of the High Court accepted this reasoning and decided that the
petition lacked merit and held that s. 111(2) of the Elections Act, 1985 as amended was in
tandem with Article 30(1) and 2(a) and (f) of the Constitution, imposing limitations upon
the enforcement and preservation of basic rights, freedoms and duties hence this appeal.

On appeal, the appellant argued firstly that the requirement of payment of security for
costs constituted an unjustified restriction on the right of a citizen to be heard, by Court,
on his complaint against illegalities or irregularities in the conduct of a parliamentary
election. The Government argued through the Attorney General that the requirement was
consistent with the avoidance of unnecessary and unreasonable costs to the Government
as well as individuals involved which could be caused by unreasonable and vexatious
petitioners who might bring petitions without any reasonable cause.

The appellant argued secondly that the provisions of s. 111(2) and (3) of the Elections Act
were discriminatory as they placed a private election petitioner and the Attorney General
on unequal footing on the matter of depositing a sum of money as security for costs. The
Attorney General submitted that s. 111(2) of the Elections Act did not abolish the
discretionary powers of the High Court under Rule 11 of the Elections (Election Petitions)
Rules to direct that a petitioner provide some other form of security or waive the
requirement to deposit shs. five million for costs, and did not limit the right of access to
justice in election petitions.

The petitioner argued also that s. 111(3) of the Elections Act discriminated against a
private petitioner as the Attorney General was exempted from the requirement to make a
deposit for security for costs.

The petitioner further submitted that the requirement was arbitrary in that it did not leave
any discretion to the Court, and also the amount was fixed arbitrarily.

Held:
1. The Constitution is a living document with a soul and consciousness as reflected in
the Preamble and Fundamental Objectives and Directive Principles of State Policy.
It should not be crippled by technical or narrow interpretation.

2. Provisions touching on fundamental rights have to be interpreted in a broad, liberal

and strict manner to jealously guard those rights.

3. Legislation is presumed to be constitutional until the contrary is proved, and the

onus is on upon the person challenging the constitutionality. It should receive a
construction that will make it operative and not inoperative.

4. The onus is on the person supporting a restriction on a fundamental right in

reliance on a claw back or exclusion clause, to justify the restriction.

5. The word “discriminate” in Article 13(5) of the Constitution was not intended to
relate to natural persons only but also embraces juristic persons and collective
bodies.

6. The right of access to justice, one of the most important rights in a democratic
society, can be limited only by a legislation that is clear and does not violate the
provisions of the Constitution.

7. Rules must be read together with their relevant Act. They cannot repeal or
contradict express provisions in the Act from which they derive authority. Also
where an Act passed subsequently to the making of the rules is inconsistent with
them, the Act must prevail unless it was plainly passed with a different object.
Section 111(2) of the Elections Act by necessary implication repealed Rule 11(3)
Rule 11(3) of the Election Rules as amended by the Election (Election Petitions)
(Amendment) Rules 1981.

8. The Elections Act effectively denied access to justice to indigent petitioners and
made it a rule without exception that each petitioner, regardless of his financial
 standing, would deposit the sum of five million shillings as security for costs before
his petition could be fixed for hearing. The sub-section and the sub-rule were
therefore inconsistent with each other and could not co-exist.

9. Access to justice does not constitute mere filing of pleadings and paying the
required court-fees. The right to have recourse or access to courts means more
than that. It includes the right to present one’s case or defence before the courts.
Fundamental rights may be limited, but the limitations must not be arbitrary,
unreasonable and disproportionate to any claim of State interest.

10. Fundamental rights and costs of litigation should not be weighed in the scales
against each other. The fact that a forum for justice is misused does not justify the
closing of the doors of justice.

11. The repeal of Rules 11(3) and (4) of the Election (Election Petitions) Rules
effectively classified those who are aggrieved by the results of a parliamentary
election and have a right to file a petition before the High Court into two distinct
groups. There were those who, because they could afford to pay a deposit of five
million shillings, would be able to have their petitions heard and those, who as a
result of their poverty will have the doors of justice firmly, shut against them.

12. Any classification or differentiation must have a rational nexus to the object the
legislation seeks. Article 13 of the Constitution forbade class legislation and not
reasonable classification. Section 111(1) of the Elections Act was class legislation,
arbitrary and more than was reasonably necessary to achieve the objective of
preventing abuse of the judicial process.

13. (Obiter) By repealing Rule 11(3) of the Election (Election Petitions) Rules, s. 111 of
the Elections Act purported to deprive a petitioner of his right, under the sub-rule,
to apply for an exemption. Regarding legislative discrimination, the decisive factor
was not the phraseology of the statute but the effect of the legislation. As s.
111(2) of the Elections Act was unconstitutional, it followed that Rule 11(3) was still
 in force. Section 111 (3) of the Act did not therefore discriminate against a
petitioner.

Appeal allowed with costs. Section 111(2) of the Elections Act, 1985 declared
unconstitutional ab initio. Rule 11(3) of the Elections (Elections Petitions)
Rules, 1971 as amended still in force. Petitioner to pay shs 500/=as security
for costs.

Legislation considered:
1. Constitution of the United Republic of Tanzania 1977 Articles 13(1), (2), (5), 6(a),
30(1), 2(a) and (f)
2. Elections Act 1985 ss. 111(2) and 111(3)
3. Electoral Laws (Miscellaneous Amendment) Act 2001 s.111 (2)
4. Election (Election Petitions) Rules, 1971 Rule 11(3)
5. Election (Election Petitions) (Amendment) Rules 1996
6. Evidence Act 1967, s.58
7. Government Proceedings Act s. 15

Cases referred to:

1. A.G. v. De Keyser’s Royal Hotel [1920] A.C. 508,
2. Boaler (in re) [1915] 1 K.B. 21
3. Britt v. Buckingham CC [1964] 1 Q.B. 77
4. Chester v.Bateson [1920] 1 K.B. 829
5. Chief Direko Lesapo v. North West Agriculture Bank and Anor. Case CCT 23 of 1999
6. DPP v. Daudi Pete [1993] T.L.R. 22
7. Ex.p. Davis (1872) L.R. 7 Ch. 526
8. Farooque v. Secretary of the Ministry of Irrigation, Water Resources and Food
Control (Bangladesh) and Ors. [2000] 1 LRC 1
9. Francis v. Yiewsley and West Drayton Urban District Council [1957] 2 Q.B. 136
[1957] 1 All E.R. 825
10. Harvest Sheen Ltd. and Anor. V. Collector of Stamp and Revenue 2 CHRLD 246
11. His Holiness Kesavananda Bharati Spripadanagalavaru v. State of Kerala and Anor.
[1973] Supp. S.C.R. 1
12. Kruse v. Johnson [1898]
13. Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government and Ors. [1960]
A.C. 1
14. R. & W. Paul Ltd. v. The Wheat Commission [1937] A.C. 139
15. Raymond v. Honey [1983] A.C. 1
16. State of Madras v. V.G. Row [1952] SCR 597
17. Sugumar Balakrishnan v. Pengaran Imigresen Negeri Sabah and Anor. [2000] 1
LRC 301

Mwindunda, Senior State Attorney for Attorney General

Prof. Shivji and Maira, Rweyongeza and Magafu for the appellant