Ndyanabo vs Attorney General (2002)

      Comments Off on Ndyanabo vs Attorney General (2002)

The case of Ndyanabo vs Attorney General (2002) is about access to justice, presumption of constitutionality and interpretation of the constitution.

In the general election held in this country in October 2000, Julius Ishengoma Francis Ndyanabo, the appellant, an advocate by profession, entered into a contest for the parliamentary seat in Nkenge Constituency. According to the results, Francis Ndyanabo lost the election. He was aggrieved by those results. As he was entitled under section 111(1) of the Act, he filed an election petition before the High Court, questioning the validity of the declared victory of his opponent.

According to section 111(2)  for an election petition to be heard the petition must pay the court as security for the costs as sum of 5 million shillings in respect of the proposed election petition

The petitioner who had not paid the required deposited, decided to file a petition under article 30(3) of the Tanzanian constitution and section 4 of the basic rights and enforcement act terming art 11(2) way of discrimination, arbitrary and unreasonable leading to injustice on the rights of citizen to be heard by the court.

Prayers/reliefs

  1. The sum of money for the deposit should be reduced
  2. The deposit be removed altogether
  3. The petition should move forward and his case heard
  4. The appellant and the attorney general should be on the same ground and one should not be discriminated as it has been done

Tanzanian Constitution Articles

Article 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.

Article 2                                                                                                                                   

It’s hereby declared that the provisions contained in this part of this constitution which set out the basic human rights, freedoms and duties don’t invalidate an existing legislation or prohibit the enactment of any legislation or the doing of any lawful act in accordance with such legislation for the purpose of ensuring that the rights and freedom of other people.

Decision

  1. The court reversed the decision of the High Court and declared Section 111(2) of the Elections Act, 1985, unconstitutional and, therefore, devoid of any legal force ab initio, that is to say, from the date of its enactment.
  2. Section 111(2) struck down for being unconstitutional is that the sum of money which a petitioner is required to pay as security for costs in a parliamentary election petition is still five hundred shillings.

The decision in this case is that the appellant was entitled to petition. This will enable him to access justice.                                                                                                               The constitution protects him and it is bound to everyone in that, it should be followed by everyone to the latter in order to facilitate and encourage the rule of law.

The constitution should be interpreted in such that it gives effect to values and aspirations of the people as herd in the case crispus karanja njogu v AG (2002)

If an act is enacted by parliament, it should not be regnant to the previous one. In this case for instance article 30(3) of the Tanzanian constitution is repugnant to section 111(2)of the constitution.

The appellant and the Attorney General should be put at the same level for equality and justice to prevail.

Relevance to The Constitution of Kenya 2010.

The Kenyan constitution has provisions that entails ones rights to access justice, to petition and also human rights against discrimination.

Article 159(2)

(a)justice shall be done to all, irrespective of status                                                       (c)justice shall be administered without undue regards to procedural technicalities.                                                                         

Article 48   

The state shall ensure access to justice for all persons and if any fee is required, it shall be reasonable and shall not impede access to justice                                                                                                                            

Article 27(1)      

Every person is equal before the law and has the right to equal protection and equal benefit of the law