On Private Candidacies and The High Court’s RulingPosted: June 18, 2010
Yesterday, the High Court of Appeals ruled that the issue of whether a ban placed on private candidates for elected office was unconstitutional is not a matter for the courts to decide. The decision read by the Chief Justice Augostino Ramadhan declared:
“The issue of independent candidates can only be settled by Parliament, which has the jurisdiction to amend the Constitution and not the courts, which, as we have found, do not have that jurisdiction…The decision on whether or not to introduce independent candidacy depends on the social needs of each state based on its historical reality. Thus the issue of independent candidates is political and not legal…[However] Tanzania is known for its good record on human rights, and particularity [sic] for our militancy on the right to self determination and hence out [sic] involvement in the liberation struggle. We should seriously ponder the comment by a committee of the United Nations, that is, [the] whole world’s, [recommendation that individuals’ right to stand for election should not be limited unreasonably by requiring them to be members of parties]…[But] let the will of the people prevail on whether or not independent candidates are suitable. We are convinced that the courts are not the custodians of the will of the people. That is the property of the elected Members of the Parliament.”
I think, ultimately, this is the right decision by the Court. On fundamental constitutional matters, and this is certainly one of them, I believe it is always advisable to let the people determine the process rather than a few guys with robes. In our case, this means that the people’s representatives, that is, members of parliament, should be the ones tasked with the responsibility of making any constitutional changes necessary to deepen our democracy. However, as it is currently constituted, our parliament does not seem to be prepared to enact those constitutional changes that would reflect the will and fundamental rights of the people. CCM, the overwhelming majority party in parliament, have been the most opposed to the notion of private candidacy and have actually used parliament to pass laws that ban such candidatures in the past.
So, while in the strictly legal and constitutional context I agree with the Court’s decision, I feel that they have failed to appreciate the broader reality at play here. We are dealing with the situation whereby it seems like the people’s representatives are no longer serving the people or acting to protect and improve on the freedoms of the citizenry. Where then do the people go to achieve recourse? One would have thought that that was when the courts would come in to adjudicate on such matters. But after yesterday’s ruling, they seemed to have passed the buck back to the parliamentarians, who unfortunately do not enjoy the full faith of their people. It is a catch-22 that leaves us all befuddled if not completely bamboozled.
(Photo: Democratic Party Chairman Christopher Mtikila, the person who has single-handedly spearheaded the legal appeal for the inclusion of independent candidates in elections since 1993, answers reporters’ questions in Dar es Salaam yesterday after the Court of Appeal declared that only Parliament could amend the Constitution to allow independent candidates. By Venance Nestory for The Citizen)