IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MAIN REGISTRY - DODOMA

(SEATED AT DAR ES SALAAM)

MISCELLANEOUS CIVIL CAUSE NO. 28420 OF 2024

JOHN SEKA………………………………………..…………….PETITIONER

VERSUS

MINISTER OF STATE IN THE PRESIDENT’S OFFICE REGIONAL

ADMINISTRATION AND LOCAL GOVERNMENT.….1ST RESPONDENT

ATTORNEY GENERAL………………………...…………2ND RESPONDENT

RULING

Date of last order: 16/11/2024

AGATHO, J.:
This ruling deals with a critical question of determining competency of

constitutional petition challenging the restriction of independent candidate

in local government elections. The petitioner contests the constitutionality of

subsidiary legislation promulgated by the Minister of State in the President’s

Office Regional Administration and Local Government that restricts

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participation of independent candidate in local government election. The

ruling draws a distinction between judicial review and constitutional petition.

It interrogates whether the court is functus officio due to the ruling in John

Seka v the Minister of State in the President’s Office Regional

Administration and Local Government and Attorney General,

Miscellaneous Civil Cause No. 27210 of 2024 where court held that the

matter was res-judicata because the issue has been determined in finality by

Bob Chacha Wangwe and Others v the Minister of the President’s

Office Regional Administration and Local Government Misc. Cause

No. 23515 of 2024; and whether the issue of independent candidate is res-

judicata in lieu of Court of Appeal decision in Honourable Attorney

General v Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009

[2010] TZCA 162 (17 June 2010) which herein is referred as Mtikila No.3.

In this petition, the Petitioner by way of originating summons is

challenging the constitutionality of regulation 15 (f) of the GN 571 of 2024;

regulation 14(f) of GN 572 of 2024; regulation 15(f) of GN 573 of 2024 and

regulation 15(f) of GN 574 of 2024. It is worth noting that the petition was

brought under certificate of utmost urgency because the Local Government

Elections are slated on 27th November 2024. Having warned itself that justice

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hurried justice buried, the court treated this case with the urgency it

deserves.

Being a constitutional petition, and as set out under rule 9 of the Basic

Rights and Duties Enforcement Act (BRADEA) Rules G.N. 304 of 2014 before

proceeding to the merit of the petition, the court is enjoined to determine its

competence. Understandably, the respondents filed their reply to the petition

predicated with a notice of preliminary objection (PO) alleging that this court

is functus officio. This PO is inter alia the subject of the present ruling.

It is on record that the petitioner appeared in person and personally

prosecuted the case. The respondents on their side were represented by

Daniel Nyakiha, Senior State Attorney, Francis Wisdom, Edwin Joshua

Webiro, State Attorney, Erigh Rumisha, State Attorney, and Kelvin Kisayo,

Senior State Attorney.

Mr Webiro, learned State Attorney began his submission in support of

PO by reminding the court that the objection raised is to the effect that the

court is functus officio to determine the petition. He also stated that the

grounds as to why the court is functus officio are in the reply to the petition.

But during their submission, they expounded them. State Attorney, Webiro

underscored that the petitioner had previously lodged Misc. Civil Cause No.

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27210 of 2024 against the respondents in the High Court of Tanzania Dar es

salaam sub-registry. In the said application the petitioner was challenging

the constitutionality of regulation 15 (f) of the GN 571 of 2024; regulation

14(f) of GN 572 of 2024; and 15(f) of GN 573 of 2024 and regulation 15(f)

of GN 574 of 2024. All of which restricts persons who are not members of

registered political parties to contest in the upcoming local government

election. Mr Webiro underlined that in the said application, the petitioner

alleged that such restrictions contravene part III of Chapter 1 of the United

Republic of Tanzania Constitution of 1977. The petitioner alleges that the

restrictions contravene Articles 12-29 which are part of the said chapter.

The learned State Attorney went on submitting that in response to the

aforesaid application the respondents raised two POs challenging the

competence of the application. And the 1st objection was in relation to the

jurisdiction of the court, and since the petitioner in that application was

challenging constitutionality of those regulations, he ought to have filed

constitutional case as provided for in the BRADEA and not the judicial review

case. According to the State Attorney the second objection was that all the

reliefs sought in that application were conclusively determined by the court

in the case of Bob Chacha Wangwe and Others (supra). The counsel

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reminded the Court that in its ruling with regards to the two objections which

was delivered on 7th November 2024 sustained the two objections. And

regarding the second objection the court at pages 35-36 held that claims in

grounds 4(b) and (c) of applicant’s statement in support of application are

res-judicata. The respondents attached a copy of the application filed by the

petitioner in their reply to the petition as Annexture OSG - 1.

The respondents’ State Attorney sought to impress the court that

looking at ground 4(c) in the statement in support of the application, Misc.

Civil Cause No. 27210 of 2024 which declared res-judicata one notices that

the petitioner in that ground was challenging promulgation of regulation

15(f) GN 571 of 2024; regulation 14(f) of GN 572 of 2024; regulation 15(f)

of GN 573 of 2024 and regulation 15(f) of GN 574 of 2024. As pe the

petitioner, all these regulations restrict the persons who are not members of

registered political parties to contest in the upcoming Local Government

Elections. And the basis of complaint was that the regulations did not take

cognizance or did not observe the provisions of part III of chapter 1 of the

Constitution of 1977, which is comprised of Articles 12-32.

It was Mr Webiro’s submission that the petitioner was complaining that

the impugned regulations contravened those Articles of the Constitution. He

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proceeded to submit that in the same ground (4(c)) the petitioner

complained that the promulgation of the already stated regulations which

have the effect of restricting the rights as submitted earlier did not consider

the provisions of international treaties and conventions to which Tanzania is

a party. These international instruments include but not limited to African

Charter on Human and Peoples Rights, the Universal Declaration of Human

Rights, and International Covenants on Civil and Political Rights.

The respondents’ State Attorney further submitted that the petitioner

contended on the same ground (4(c)) that the impugned regulations limit

enjoyment of several fundamental rights of citizens of Tanzania guaranteed

by the constitution. Lastly, Mr Webiro submitted that it was the contention

of the petitioner that the impugned regulations did not consider the

provisions of the United Republic of Tanzania Constitution of 1977. Mr

Webiro was of the view that all the grounds pointed out were essentially

challenging the constitutionality of the impugned regulations and were all

declared res-judicata.

In relation to the petition at hand, Mr Webiro voiced the respondents’

dismay that the petitioner is again challenging the constitutionality of the

very same regulations. He submitted that this can be clearly seen on grounds

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upon which the reliefs are sought which is paragraph B of the Originating

Summons. The paragraph claims that the impugned regulations contravene

the provisions of the United Republic of Tanzania constitutions of 1977.

The State Attorney then turned to the facts relied upon by the

petitioner, which is paragraph C in the originating summons. He cited for

instance, facts No. 4, 5, 6 and 7. Looking at these facts, they are replica of

ground 4(C) in Misc. Civil Cause No. 27210 of 2024 which was declared by

the court to be res-judicata.

The learned State Attorney, Webiro opined that since the Court in Misc.

Civil Cause No. 27210 of 2024 pronounced that the grounds in paragraph

4(C) were res-judicata, then this Court is functus officio to determine these

matters again. He clarified that the Court is said to be functus officio when

it disposes off a case or matter by making some orders which finally disposes

of the case. To buttress his viewpoint, he cited the case of Scholastica

Benedict v Martin Benedict [1993] TLR 1 (CA) at pages 4-5. He also cited

the case of Tanzania Telecommunication Company Limited and

Others v Tri Telecommunications Tanzania Limited [2006] EA Law

Report Vol. 1 No. 393 at page 398. In these cases, the court held that when

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the matter is disposed to finality it becomes functus officio to entertain that

matter again.

The State Attorney concluded that the petitioner is challenging what

was declared by the court to be res-judicata. In that spirit and on behalf of

the respondents he prayed that the Court be guided by the above decisions

and find that the petition is incompetent because the court is functus officio

with regards to the reliefs sought by the petitioner.

Flanking Mr Webiro was Mr Rumisha, State Attorney who submitted on

respondents’ prayer for costs. He argued that under rule 18 of the BRADEA

Rules of 2014 that it is the discretion of the Court to award costs. He rightly

pointed out that such discretion must be exercised judiciously. It was Mr

Rumisha’s stand that they be awarded the costs on the basis that firstly,

after the ruling in Misc. Civil Cause No. 27210 of 2024 the right cause which

the petitioner should have taken if aggrieved by the ruling therein was to

appeal. But not to relitigate the same matter in this court. In such

circumstance the State Attorney was of the view that this case is an abuse

of court process, frivolous and vexatious as it was stated in Mpaka Road

Development v Kana, [2004] EA Law Reports at page 161.

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 The State Attorney explained that it is the abuse of court process

because it intends to create conflicting decisions before the same court

contrary to what have been stated in the case of ULC Tanzania Limited v

NIC and another [2003] TLR 212 which insists that a judge of the same

rank should not give a conflicting decision over similar matter. Mr Rumisha

submitted that the action of the petitioner bringing this matter was an abuse

of court process with a view of creating conflicting decisions. The State

Attorney decried that it is an abuse of court process for under adversarial

system one of the principles is that there should be an end to litigation. This

was emphasized in the case of Stephen Wassira v Joseph Warioba

[1999] TLR 332. The same was earlier on emphasized in the case of

Northwestern Water Limited v Bannier Patmer [1990] All ER 3 at page

547. Mr Rumisha argued that an attempt to litigate in another cause, which

has been fully decided in a former action constitutes an abuse of court

process. Lastly, the learned State Attorney relying on the principle that

parties are bound by their pleadings insisted that what is present in this

court, by looking at the pleadings, reliefs sought and grounds upon which

the reliefs are sought and facts relied upon between this case and the former

Misc. Civil Cause No. 27210 of 2024 one will agree that this is purely an

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abuse of court process. It was his view that under such circumstances this

will not be the first case where the court awarded costs. Mr Rumisha invited

the court in exercising its discretion to be guided by the above principles. He

in that understanding cited Julius Inshengoma Ndyanabo v AG [2004]

TLR at page 14 where though it was a constitutional case and public interest

litigation, the court awarded costs based on the circumstance of that case

and how the petitioner conducted himself.

On his part Mr Seka, the petitioner while resisting the preliminary

objection submitted that first and foremost that the Court was referred to

the petition and contents thereof but more importantly it was referred to the

respondents’ reply to the petition and the attachment as evidence. He

challenged the submission of respondents in that it was done contrary to the

usual practice with a view to convince this court that the matters that are

being raised by the respondents have been settled. Mr Seka went on

responding that the fact that previously he had instituted another matter

before the High Court has been pleaded in his petition. And he explained the

circumstances as to why he instituted another case. The petitioner submitted

that he stated in his petition that in the previous matter which the

respondents cited, Misc. Civil Cause No. 27210 of 2024 was an application

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for leave to file an application for judicial review, in which the leave was

refused. The reason for refusal was that this court felt that it had no

jurisdiction. Mr Seka argued that the respondents reply to the originating

summons have disputed some of the averments particularly on paragraph

18 of the counter affidavit. That’s where this the respondents have attached

annexture OSG-1. According to the petitioner the fact that there is an

affidavit and counter affidavit makes this matter or question a mixture of

facts and law. Mr Seka suggested that this court in determining whether it

is functus officio it must review the evidence pleaded by the applicant in the

petition and the evidence pleaded by the respondents in their reply to the

petition. He continued to submit that this court is further being asked to read

the application in Misc. Civil Cause No. 27210 of 2024, the respondents reply

and the ruling emanating therefrom to establish whether this court is functus

officio and the matter is res-judicata. The petitioner warned that the moment

this court does that it is no longer determining the preliminary objection but

it is being invited to dwell on the merits of the case, and at this stage of

determining competence of the application this court cannot do that.

It was argued by the petitioner that this is not the first time this aspect

has been addressed by the court. The Court of Appeal in the case of Shose

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Sinare v Stanbic Bank Tanzania Limited, Civil Appeal No. 89 of 2020,

reported in TanzLII as 2021 Court of Appeal 476 had asked itself a similar

question. That question is found on page 11 of typed judgment of the Court

of Appeal, the issue of immunity was purely point of law in the circumstances

and having cited several of its previous decision including the case National

Insurance Corporation and Another v Shengena Limited, Civil

Application No. 20 of 2007 Court of Appeal while adopting the principle

stated in Biscuit Manufacturing Co, Ltd. v West End Distributors Ltd

[1969] E.A. 696 it held that the PO must be based on pure point of law. For

the PO to be sustained it must be a pure point of law. It should not need

support from evidence. In the same case the Court of Appea cited the case

of Soitsambu Village Council v Tanzania Breweries Limited and

Another, Civil Appeal No. 105 of 2011 Court of Appeal reported in TanzLII

as 2012 TZCA 2055.

Mr Seka continued to submit that in Shose Sinare (supra) the Court

of Appeal at page 12 held that PO must be free from facts calling for proof

or requiring evidence to be adduced for its verification. Where a court needs

to investigate such fact, such point cannot be raised a preliminary objection

on a point of law. The court must therefore insist adoption of proper

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procedure for entertaining application of POs. The petitioner citing Court

Appeal holding suggested that the court will treat as POs only those points

that are pure law, unstained by facts or evidence, especially disputed points

of facts or evidence. The objector should not condense to the affidavits or

other documents accompanying the pleadings to support the objection such

as exhibits.

The petitioner lamented that the court has seen in the present case

that the respondent had to rely on affidavit and exhibit attached to the

affidavit to argue and support their POs. He cautioned that the Court of

Appeal had refused such practice. This is relevant because the court at this

stage is not reviewing the affidavits from both sides because that is done at

the stage of determining the merit of the matter. The Court of Appeal held

in Shose Sinare at page 14 that matter which it was asked to determine

was premature at that stage. Mr Seka appealed to the Court that reading of

Shose Sinare (supa), and Soitsambu (supra) and several decisions of

Court of Appeal and High Court cited as authorities that when the PO requires

evidence from the pleading then it cannot be determined as PO on pure point

of law.

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 He pleaded with the court that it is premature to determine those

issues for the following reasons: if the court is to tread on factual issues:

first, Misc. Civil Cause No. 27210 of 2024 was an application for leave to file

application for judicial review. Therefore, it was not a decision on merit. But

secondly, in that decision, Mr Seka submitted, it was the respondents who

raised an issue that the case must be initiated by constitutional petition. This

court luckily agreed with the submission and ruled that the case must be

filed as constitutional petition. The High Court held that it lacked jurisdiction

to entertain because it is matter that had to filed as constitutional petition.

The petitioner argued that having complied with the above ruling it is

bewildering that the respondents are now complaining that this route is not

proper because the matter has been finally determined. He submitted that if

the court revisits the evidence in the affidavit, it will see that the High Court

is saying it has no jurisdiction. It was his view that it is a question of law that

if the court has no jurisdiction how can it be said to have determined the

matter on merit to render it functus officio.

Regarding the question functus officio, Mr Seka suggested, it is when

the court of competent jurisdiction determines the matter on merit that is

when it said to be functus officio. The moment the court held that it has no

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jurisdiction it cannot be said to be competent and to have finally determined

the matter while it was clear that the proper forum for determination of the

matter was a constitutional court.

Therefore, the petitioner submitted that the respondents PO is not a

PO on pure point of law so to speak because it requires the court to revisit

the evidence adduced by both parties and satisfy itself. Mr Seka submitted

that the court will notice that during submission by the respondents they

asked the court to look at ground 4(c) and compare it with the present

petition. The petitioner further reacted that the application referred to is part

of exhibit/evidence. The petitioner urged the court not to travel that route

because at proper stage evidence will be led by both parties to assess

whether what was decided in Misc. Civil Cause No. 27210 of 2024 is the

same as what is agitated herein in terms of reliefs sought.

Mr Seka responded further that assuming that he is wrong, and the PO

is proper and in compliance with the case of Mukisa Biscuit

Manufacturing Co, Ltd. v. West End Distributors Ltd [1969] E.A. 696,

he strongly argued that the matter before the court is not res-judicata. He

opined that although the PO is couched as functus officio but arguments

were relating to res-judicata. This was resisted by the respondents. The

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petitioner retracted his submission on res judicata. He thus went on

submitting on functus officio that this court is not functus officio because the

matter relating to the complained provisions (regulations) that is the

constitutionality of regulations is not the matter that has been determined

by any court.

It was the petitioner’s submission that the matter has not been

determined on merit in Misc. Civil Cause No. 27210 of 2024 because the

court felt that it lacked jurisdiction, so it declined to determine them. Thirdly,

this court is not functus officio because the High Court stated that the

constitutional court is a proper court to determine this matter. Fourthly, Seka

argued that this court is not functus officio because the application that was

previously before the High Court was for seeking leave to file application for

judicial review which is a screening exercise and not a determination of the

merit of the case. The petitioner submitted that the authorities for that

principle are found in Court Appeal’s direction in Ema Bayo v the Minister

for Labour and Youth Development and two Others, Civil Appeal No.

29 of 2012 reported in TanzLII as 2013 TZCA 190. At page 8 of the typed

judgment the Court of Appeal is categorical that at the leave stage courts do

not determine merits of the application. The same position has been

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reiterated recently in the Court of Appeal decision of Hamis Babu Bally v

Judicial Officers Ethics Committee and Three Others, Civil Appeal No.

448 of 2021 Court of Appeal reported in TanzLII as 2024 TZCA 1010. In this

decision, the Court of Appeal held that at the leave stage it is a screening

process, and they do not determine matters on merit. It is that contention

that the petitioner argued that this court is not in a position to state at the

preliminary stage whether it is functus officio because the materials to

determine that ground must be screened and obtained from the evidence to

be adduced at trial on the merit. It is at that stage where this court will be

in a position to evaluate what was decided at leave stage if it was a decision

on merit for this court to be functus officio.

Finally, on the issue of costs, Mr Seka protested awarding costs to the

respondents. Although he conceded that costs is discretion of the court,

under rule 18 of the BRADEA Rules implores that the court not to award

costs in public interest litigation which seeks to champion fundamental rights

and those seeking to strengthen human rights jurisprudence or other

important matters of law such as issue functus officio. The petitioner also

submitted that he is an advocate of the High Court, and he has no intention

to waste resources of the court. He submitted in addition that this being an

17
important constitutional case is justified by the court’s sitting on Saturday as

it did. He then distinguished the cases cited in support for claims for costs.

For instance, the case of Julius Inshengoma Ndyanabo (supra) was

decided before the BRADEA rules were enacted. The rules aim to encourage

public interest litigation to safeguard fundamental rights. He ended his reply

submission by praying that the PO be dismissed and the court certify that

this matter is competent before this court.

Having closed the petitioner’s reply submission, Mr Webiro, State

Attorney rejoined. He contended that the objection raised is a pure point of

law and it complies with Mukisa Biscuit’s case (supra). It was his view

that the objection raised does not requires evidence contrary to what has

been argued by the petitioner. It confines itself to pleadings, that is the reply

to the petition, counter affidavit as well as annextures attached thereto. Mr

Webiro stressed that their objection is on basis of decision of this court in

Misc. Civil Cause No. 27210 of 2024. He submitted that since it is the decision

of this court then it can take judicial notice. It requires no proof.

As per the State Attorney, it is now a settled principle of the law that

the PO cannot be from abstract, when the court dealing with PO the court

confines itself to the pleadings as well as annextures attached to it. That is

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the position of the Court of Appeal in many decisions. Three Court of Appeal

decisions were cited to support the argument. First Moto Matiko Mabanga

v Ophir Energy PLC and Six Others, Civil Appeal No. 119 of 2021 Court

of Appeal, this case was decided after Shose Sinare’s case (supra). Mr

Webiro argued that in Moto Matiko Mabanga (supra), the issue was raised

that the court should not look at the annexture. But the Court of Appeal at

page 14 of the decision it clearly stated that in dealing with an objection the

court can refer or look at the pleading and, in this case, it was a plaint and

its annexture and the court went further looking at the pleading and

determined the objection. The Court of Appeal held the same position in the

case of Ali Shabani and 48 Others v TANROADS and Another, Civil

Appeal No. 261 of 2020 Court of Appeal at page 8 the Court of Appeal was

categorical that a PO cannot be taken from abstract without reference to

some facts plain on the pleadings which must looked at without reference

examination of any evidence. The last decision is the case of Gideon

Wasonga and Three Others v Attorney General, Civil Appeal 37 of 2018

Court of Appeal decided in 2021 the same issue that PO does not require

evidence was raised. In that case it was in respect of the notice of appeal

which was not served to the other party. And reliance was placed on the

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notice of appeal which was in the record of appeal. The appellant argued

that the PO was not pure point of law because it required evidence. In his

submission on the objection the appellant cited many cases to buttress it

including the case of Shose Sinare (supra). In that case of Gideon

Wasonga (supra)at page 10 -11 the Court of Appeal held that the PO can

determined by looking at the pleadings and annextures attached thereto.

But there is a case decided before Shore Sinare (supra) that is the case of

COTWO (T) OTTU Union and Another v Hon. Iddi Simba Minister of

Industries and Trade and Others [2002] TLR 88 (CA) the PO must arise

from the parties’ pleadings or necessary inference thereto.

Therefore, Mr Webiro concluded that their objection is confined to

pleadings and attached annextures then it was his humble submission that

it qualifies to be a pure point of law in line with the decisions cited.

As for allegation that the PO cannot be determined at this stage

because it requires the court to determine the merit of the matter, the State

Attorney rejoined that the court has jurisdiction to determine the objection

at this stage on two grounds: first the competence of the petition is

determined by the single judge as per Rule 9 of the BRADEA rules. The

second ground is that all matters relating to the jurisdiction of the court in

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constitutional petition are determined by a single judge in terms of Rule 7(2)

of the BRADEA Rules. Therefore, the argument that this PO should be

determined at the stage of determining the case on merit will render the said

PO nugatory as the respondents will not have an opportunity to determine

them in terms of the rules above cited. Mr Webiro reiterated his point that

the issue of functus officio concerns jurisdiction has to be determined by a

single judge as per the rules.

There is no dispute that the court did declare that all matters alleging

that the impugned provisions contravene part III chapter 1 of the United

Republic of Tanzania Constitution, 1977 were res-judicata. The petitioner

has not disputed that. Since in this case the petitioner challenges the same

provisions that were declared to by the court that were res-judicata the

respondents submitted that this court is functus officio. The High Court

made a clear declaration that the impugned regulations contravene the

constitution is res-judicata. Mr Webiro emphasized that the petitioner has

contested this.

The respondents were also displeased with the petitioner’s argument

that the Misc. Civil Cause No. 27210 of 2024 was not determined on merit

and hence one cannot say then court is functus officio. The State Attorney

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argued that since the court declared it to be res judicata it became functus

officio to entertain it again. If the petitioner was aggrieved, he would have

appealed.

Regarding the petitioner’s submission that he was directed by the court

to file a constitutional petition, that is why he filed this case, Mr Webiro

argued that even though the court directed so, the said court declared that

even the claims were res-judicata. It was his opinion that the said claims are

like the ones raised in the case at hand. He closed his rejoinder with a prayer

that the petition be dismissed with costs.

Having keenly listened to the parties’ submissions and in relation to

the PO raised, the court observed the key points for determination of the

PO. Namely, first: whether the PO raised was a pure point of law and

reference to pleadings is barred? Second, whether this court is functus

officio? Thirdly, whether the PO raised has any merit? More to that the court

raised another PO suo motu, that is whether this petition is res-judicata to

Honourable Attorney General v Reverend Christopher Mtikila, Civil

Appeal No. 45 of 2009 [2010] TZCA 162 (17 June 2010). Lastly, if the

respondents’ PO is meritorious, whether they should be awarded costs.

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 To begin with, whether the PO raised by the respondents was a pure

point of law and reference to pleadings is barred. The PO is that this Court

if functus officio. Looking at the respondents’ notice of the PO it is explicit

that:

1. The Court is Functus Officio to determine the petition on the following

grounds;

2. The complaint that promulgation of regulation 15 [f] of GN No. 571 of

2024; regulation 14 [f] of GN No. 572 of 2024; regulation 15 [f] of GN

No. 573 of 2024 and regulation 15 [f] of GN No. 574 of 2024, which

restrict persons who are not members of registered political parties to

contest the upcoming local government elections did not take

cognizance of, or observe the provisions of Part 3 of chapter 1 (Articles

12 to 32) of the Constitution of Tanzania was declared to be res

judicata by this Court in Miscellaneous Civil Cause No. 27210 of 2024

between John Seka vs the Minister of State in the President’s Office

Regional Administration and Local Government and Attorney General.

3. The complaint that promulgation of regulation 15 [f] of GN No. 571 of

2024; regulation 14 [f] of GN No. 572 of 2024; regulation 15 [f] of GN

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 No. 573 of 2024 and regulation 15 [f] of GN No. 574 of 2024, which

restrict persons who are not members of registered political parties to

contest the upcoming local government elections did not consider the

provisions of international treaties and conventions to which Tanzania

is a party including but not limited to the African Charter on Human

and Peoples Rights; the Universal Declaration of Human Rights and the

International Covenant on Civil and Political Rights was declared to be

res judicata by this Court in Miscellaneous Civil Cause No. 27210 of

2024 between John Seka vs the Minister of State in the President’s

Office Regional Administration and Local Government and Attorney

General.

4. The complaint that promulgation of regulation 15 [f] of GN No. 571 of

2024; regulation 14 [f] of GN No. 572 of 2024; regulation 15 [f] of GN

No. 573 of 2024 and regulation 15 [f] of GN No. 574 of 2024, which

restrict persons who are not members of registered political parties to

contest the upcoming local government elections limit enjoyment of

several fundamental rights of citizens of Tanzania guaranteed by the

Constitution of Tanzania was declared to be res judicata by this Court

in Miscellaneous Civil Cause No. 27210 of 2024 between John Seka vs

24
 the Minister of State in the President’s Office Regional Administration

and Local Government and Attorney General.

5. The complaint that promulgation of regulation 15 [f] of GN No. 571 of

2024; regulation 14 [f] of GN No. 572 of 2024; regulation 15 [f] of GN

No. 573 of 2024 and regulation 15 [f] of GN No. 574 of 2024, which

restrict persons who are not members of registered political parties to

contest the upcoming local government elections did not consider the

provisions of the constitution was declared to be res judicata by this

Court in Miscellaneous Civil Cause No. 27210 of 2024 between John

Seka vs the Minister of State in the President’s Office Regional

Administration and Local Government and Attorney General.

It is trite law that the PO must be based on pure point of law that does

not require any evidence to substantiate and sustain it as correctly held in

Mukisa Biscuit’s case (supra) and in Shose Sinare’s case (supra).

However, as rightly submitted by the respondents the jurisprudence has

evolved to the extent that PO cannot be raised from abstract without

referring to the pleadings. Such is the position in subsequent decisions in

Moto Matiko Mabanga’s case (supra) and Ali Shabani’s case (supra).

Briefly, I find no substance in Mr Seka’s stiff resistance to referring to

25
pleadings when determining POs. That said this court is not precluded from

perusing the pleadings to determine the PO raised.

Before going into the gist of the PO, there are principles that I should

acknowledge. A public interest litigation at hand aims at testing the laws and

principles to see how strong they are. The petitioner can thus be given benefit of

doubt. He is performing academic work to improve jurisprudence.

That said, I would firstly refer to Alexander J. Barunguza v the Law

School of Tanzania, Hon. Judge Benhajj Shaaban Masoud and

Attorney General, Misc. Civil Cause No. 1 of 2023 High Court Main Registry

at Dar es salaam at page 24 where High Court while citing Meckzedeck

Maganya v Minister of State, President's Office Regional

Administration and Local Government and Another, Misc, Civil Cause

No. 10 of 2023, High Court Main Registry at Dar es salaam discussed the

rules and principles on constitutional petition and judicial review as follows:

1. Application for judicial review and constitutional petitions are two

distinct procedures, one being for civil actions and related matters,

which is provided for under the Law Reform (Fatal Accidents and

Miscellaneous Provisions), Act [Cap 310 R.E 2019], and the other being

for enforcement of constitutional basic rights and duties and for related

26
 matters, which is enacted under BRADEA. The difference is set by the

objectives of the two Acts of Parliament above-named, as stated in

their respective long titles.

2. A question whether a matter is fit to be brought to this Court as an

application for judicial review or a Constitutional petition depends on

whether such matter seeks redress for civil wrongs, (remedies being

typically the prerogatives orders of certiorari, mandamus, prohibition

and habeas corpus), or it seeks redress for violations of constitutional

basic rights and duties as clearly defined under section 4 of BRADEA.

3. the Court shall register, hear and determine a petition seeking redress

for breach of basic rights and duties, for as long as the pleadings show

that the complaint therein and reliefs being sought are based on

violations of basic rights and duties, irrespective of whether the

provisions of law being impugned are of a principal or subsidiary

legislation.

4. If a subsidiary legislation is impugned for violating basic rights, and the

petitioner is able to show in his petition and accompanying affidavit,

how that subsidiary legislation has affected his basic rights sanctioned

under a specific Article of the Constitution, and the petitioner observes

27
 all the requirements under BRADEA and its rules for filing his petition,

such a petitioner shall have the right to petition this Court for redress

based on violations of basic rights and duties, and this Court shall be

obliged to exercise its jurisdiction under section 8(1) (a) of BRADEA.

The reverse, as to satisfaction of the judicial review requirements

under Cap 310 R.E 2019 and its rules, is also true and distinct.

5. For purpose of determining whether the Court should invoke its

jurisdiction under section 8(1) of BRADEA, where the facts pleaded in

a petition plainly disclose a breach of basic rights or duties under the

Constitution in relation to the petitioner, there shall be a basis for

invocation of Court's jurisdiction, provided that the Court is properly

moved.

From the above, the High Court clearly departed from its position in

Geofrey Watson Mwakasege vs Tanganyika Law Society and the

Attorney General (Misc. Civil Cause, 23 of 2021) [2022] TZHC 11064 (19

July 2022) which held that it was not proper to challenge subsidiary

legislation through constitutional petition. It is only Act or principal legislation

that can be challenged by way of judicial review.

28
 Further, in Mekzedek Maganya (supra) High Court held that there is

nowhere it has been stated in the law that subsidiary legislation cannot be

challenged by way of constitutional petition. This appears to be view held by

the Court in Miscellaneous Civil Cause No. 27210 of 2024.

Therefore, judicial review and constitutional petition are two different

procedures. The difference is set by the objectives in the long title of the two

legislation.

Since the petitioner’s application on judicial review was refused and

now, he is seeking court’s indulgence via Constitutional petition that seems

to be proper. These are different regimes/procedures. But then again

purpose of determining the competence and eventually the end results is to

impeach the subsidiary legislation (local government election laws) which

the Court has declared to be res-judicata and hence the court as submitted

by the respondents is functus officio.

In view of the above decisions of this court (Barunguza (supra)), and

Mwakasege (supra)), on the one hand, one may be tempted to think the

petition is competent. It has complied with section 4 BRADEA. But the

essence of determining competence under rule 9 of the BRADEA Rules is to

sieve grain from chaff. To determine whether the case is material or

29
meritorious so as the constitutional court can be constituted. Each case must

be determined based on its own peculiar facts.

Delightedly, the parties had an opportunity to address the court on the

issue whether the petition at hand is res-judicata according to Court of

Appeal decision in Mtikila No.3 At this juncture we ponder the parties’

submissions on that point. The petitioner argued that the Court of Appeal

decision Mtikila No. 3 was on whether the High Court has jurisdiction to

declare a provision of the constitution unconstitutional. He also submitted

that the causes of action in Mtikila No.3 are different from the cause of

action in this petition. In the former the issue was on independent candidate

in presidential and parliamentary election, while in the latter we are dealing

with independent candidate in local government election especially the

village and street leaders’ election. Mr Seka argued that the issue of

independent candidate is not settled because the decision of Lugakingira J

in Christopher Mtikila v Attorney General, Civil Cause No.5 of of 1993,

Hight Main Registry, herein cited as Mtikila No.1 was never appealed

against. In his view, he considers that decision allowing for independent

candidate to be a valid decision of the court. According to the petitioner

Lugakingira J (as he then was) did not declare the provisions of the United

30
Republic of Tanzania constitution of 1977 restricting independent candidate

unconstitutional because the High Court has no such mandate. And it was

his suggestion that if he would have done so, his decision would have faced

the same fate that befallen the decision of High Court Mtikila v Attorney

General, Misc. Civil Cause No. 10 of 2005 High Court Main Registry, herein

cited as Mtikila No.2 where the Court of Appeal in Civil Appeal of 2009

ruled that the High Court does not have jurisdiction to do so. It was Mr Seka’s

view that the government through Hon. Attorney General has not

implemented the decision of Lugakingira J in Mtikila No. 1. Therefore, this

issue is not settled. But in contrasting view Mr Seka submitted that Mtikila

No. 1 did not cover village and street leaders’ election. He argued that the

independent candidate ought to be permitted in the villages and streets

chairmen’s election and so far that has not been entertained by the court.

The petitioner contended that this is the first case to deal with independent

candidate in village and street leaders’ election. In his view Article 21(2) of

the constitution contain restrictions to participate in electoral processes by

being a member of political party only for the post of President, Vice

President and Member of Parliament. It does not extend to local government,

village and street leaders’ election. He tried to persuade the court to afford

31
an opportunity for examination of this important constitutional and legal

question.

Mr Seka also submitted that the reliefs sought in the instant petition is

different from the reliefs sought in Mtikila No. 2 that was challenging Act

No. 34 of 1994 constitutional amendment that imposed the restrictions on

independent candidate. He thus suggested that the doctrine of res-judicata

does not apply in the present case.

The respondent through Mr Nyakiha, Senior State Attorney and Mr

Sanga, State Attorney vigorously opposed Mr Seka’s submission. The

respondents argued that as visible on page 5 of Court of Appeal decision in

Mtikila No. 3 the key issued in the appeal was that of independent

candidate. The learned State Attorneys further referred to page 37 of Court

of Appeal decision in Mtikila No. 3 which held that:

“After saying all that it is obvious that we cannot legally

say that independent candidates are allowed that is the

province of the parliament to amended the constitution

according to Article 98(1).”

The respondents did not end up there they went on submitting that the Court

of Appeal in Mtikila No. 3 at page 40 ruled that the issue of independent

32
candidate has to be settled by the parliament which has jurisdiction to amend

the constitution and not the court which they found to have no jurisdiction.

The respondents submitted that Mtikila No. 2 at the Hight Court) and the

case at hand are both constitutional petitions. Analogically, the State

Attorney argued that Jebra Kambole v Attorney General, Civil Appeal

No. 236 of 2019 Court of Appeal (judgment delivered on15th June 2022) at

page 26 the CAT rejected the fact that the matter was not substantially and

directly the same in two cases that were decided in that case, and resorted

to the context that the death penalty has already been discussed and thus

any issue pertaining to death penalty will amount to res judicata. Like the

present petition the determination of independent candidate has already

been settled and thus res-judicata.

Interestingly, the respondents referred to page 31 of Jebra

Kambole’s case (supra) where the Court of Appeal held that the decision

in Tete Mwamtenga’s case (supra) has not been subjected to an appeal

to date. But to hold that the case under scrutiny was not res judicata, in the

Court of Appeal view that was erroneous and misleading. The respondents

suggested that even the decision in the case of Mtikila No.1 though it was

not appealed against does not mean that the case at hand is not res-judicata.

33
Mr Sanga, State Attorney took his turn to object the submission that

Lugakingira J’s decision in Mtikila No. 1 on independent candidate is still

valid. He referred to page 13 of 2009 Mtikila No.3 where Court of Appeal

cited what Lugakingira J’s ruled on the right of independent candidate but

underlined that he did not struck out the Article of the Constitution restricting

independent candidate. The Court of Appeal held that the learned judge’s

failure to strike out the provisions of the constitution rendered his decision

empty statements. Mr Seka rejoined on this and submitted that the High

Court does not have jurisdiction to declare the provision of constitution

unconstitutional. On the issue of referring the judge’s stand to decline to

strike the constitutional provisions as empty statements, the petitioner

regarded that as Court of Appeal’s obiter dictum.

With respect to the decision in Jebra Kambole’s case (supra), Mr

Seka rejoined that the Court of Appeal in that case was of the view that the

reliefs and prayers were like those of Tete Mwamtenga’s case (supra).

And the Court of Appeal held that unless Tete Mwamtenga’s case (supra)

is appealed, it was wrong for Jebra Kambole (supra) to bring to a case

seeking same reliefs. It was the petitioner suggestion that this case is

distinguishable because in this petition the petitioner is not seeking the same

34
reliefs. Nor is he challenging the same provisions as what was decided by

the Court of Appeal in Mtikila No.3.

It was further view of the petitioner that this case is different because

the provisions complained of are not provisions within the competence of

the parliament but are provision within the competence of the Minister for

Local Government so the context of independent candidate in Mtikila No.

3 as decided by the Court of Appeal and the present petition is different. In

the court’s view this is academic arguments. That is because even subsidiary

legislation does not escape the scrutiny of supreme law maker that is the

legislature. Besides the Court of Appeal was clear that the issue of

independent candidate is a political matter.

On top of that Mr Seka beseeched the court to decline the invitation

by Mr Nyakiha Senior State Attorney to decide the matter on the basis of the

contextual theme because this court does not decide legal matter on the

basis of contextual theme but only on the basis of legal issues before it.

Indeed, this case contains matters of constitutional important.

However, and despite the petitioner’s sentiments, the court is of the view

that the decision on independent candidate as held in Court of Appeal

decision in Mtikila No.3 which is a decision in rem and not in persona. It

35
was thus a decision against the whole public. I am thus in agreement with

Mr Nyakiha, Senior State Attorney that legal context in the circumstances of

this petition matters. That is contextual interpretation.

I am of the view that if the constitutional petition is initiated for futile

pursuits that eventually hit a dead end it is incompetent. That is because the

constitutional petition is sacred arena reserved for serious matters. It was

thus correctly held in Attorney General v W.K Butambala [1993] TLR 46

that constitutional petitions are a preserve of serious proceedings of

constitutional importance. They are not set for pursuing fruitless matters. It

suffices to state that what is being impeached here is the election laws be it

local or national/general elections. The issue of independent candidate for

elections in this country is settled in Mtikila No.3 where the Court of Appeal

at pages 40-41 held that:

“In our case, we say that the issue of independent

candidates has to 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

candidates depends on the social needs of each State

36
 based on its historical reality. Thus, the issue of

independent candidates is political and not legal.”

In the same veins the 8th Constitutional Amendment Act, Act No 34 of

1994 made it clear that a candidate must be a member of and sponsored by

a political party whose essence is to cement multiparty democracy in the

United Republic of Tanzania. The Act No. 34 o f1994 amended Article 21(1)

of United Republic of Tanzania Constitution of 1977 to cross refer it to

Articles 5, 39 and 67 that brought into the Constitution which permitted only

party members to contest for various posts during the elections.

In connection to the present case, and ordinarily this court at this stage

its focus is limited to determining competence. Moreover, based on the

respondents’ PO and looking at the pleadings (as per Moto Matiko

Mabanga (supra), and the decision of the Court of Appeal in Mtikila No.3

which renders it res-judicata), this petition is in my view incompetent.

Luckily, the parties had an opportunity to address the issue of res-judicata.

Another controversy is the principle in ULC Tanzania Limited v NIC

and another [2003] TLR 212 that judges of the same rank should not give

conflicting decisions over similar matter. Here I am referring to Misc. Civil

Cause No. 27210 of 2024 which held the application for leave to apply for

37
juridical review to be res-judicata. But then again looking at Baranguza’s

case (supra) this seems to be a tough call. I am fortified in my stand that

this constitutional petition cannot be res-judicata based on the ruling in Misc.

Civil Cause No. 27210 of 2024 which was about judicial review.

That aside, and turning to the PO itself, the respondents are of view

the court is functus officio as what the petitioner is seeking through his

petition has already been determined by the court in Miscellaneous Civil

Cause No. 27210 of 2024. In that case the Court held that the claims,

grounds and reliefs sought are res-judicata. The latter doctrine applies where

the issue in dispute must have been substantially in issue in the previous

case and has been finally resolved in that case. That is as per the case of

Onesmo Olengurumwa v Attorney General, Civil Appeal No. 165 of

2021 Court of Appeal in TanzLII reported as [2024] TZCA 651 (29 July 2024).

I have read the ruling in Miscellaneous Civil Cause No. 27210 of 2024

there is no gainsaying that the court held that the case was res judicata to

the ruling in Bob Chacha Wangwe (supra) which dealt with the same

issues. In Miscellaneous Civil Cause No. 27210 of 2024 at pages 35-36 the

court concluded that there is no doubt that the matter has been conclusively

adjudicated by this court in Bob Chacha Wangwe’s case (supra).

38
However, lest we not blinded that these cases were on judicial review while

the present case is the constitutional petition.

The functus officio principle was central in Tanzania

Telecommunication Company Limited and Others v Tri

Telecommunications Tanzania Limited [2006] EA Law Report Vol. 1 No.

393 at page 398. In the above cited cases, the court held that when the

matter is disposed into finality it becomes functus officio to entertain that

matter. I concur with Mr Seka’s vigorous protesting of the functus officio

objection for this Court is not functus officio because what he has brought

before it is a constitutional petition. Besides that, his previous application in

Miscellaneous Civil Cause No. 27210 of 2024 was for leave to file an

application for judicial review. That is why he never wanted the court to refer

to that ruling and even the application, affidavit and counter affidavit therein.

He also raised an academic point that the respondents in their reply to the

petition referred to counter affidavit in Miscellaneous Civil Cause No. 27210

of 2024. In my view, the issue of PO where the court is determining its merit

it can refer to pleadings which are not restricted to plaint or counter affidavit

only. The reference to pleadings therefore means any pleadings and its

annextures.

39
 As regards to functus officio, in the case at hand, we ask whether here

functus officio applies to judicial review and not constitutional petition as Mr

Seka would want this court to rule. Much as the previous application for

judicial review or leave to apply for judicial review were entertained by the

High Court exercising judicial review jurisdiction, here we have the same

court determining the competence of the constitutional petition. The

constitutional court would have had an opportunity to decide the matter on

merit after this court determining the competence of the petition. Therefore,

we ask if the High Court judges are the ones who determined the

applications for judicial review and in the present matter the High Court

judge is presiding over the matter does a legal question of functus officio

arise? The principle of functus officio applies to the same court or judges of

the same rank that determined the matter. See ULC Tanzania Limited

(supra). It means this court cannot reopen what it has determined. Mr Seka

argued that functus officio applies to decision on merit only. That certainly

is misconception because the principle of functus officio applies even to

interlocutory proceedings. However, unlike functus officio, the doctrine of

res-judicata applies to all courts meaning the matter has been conclusively

and finally determined. It is imperative to add at this juncture that while

40
Misc. Civil Cause No. 27210 of 2024 was an application for leave to file an

application for judicial review, in which the leave was refused as this court

felt that it had no jurisdiction, it did not end up there, as plainly seen on

pages 35-36 of the ruling the Court also concluded that the matter was res-

judicata.

I am settled in my view that this being a constitutional petition, and in

contrast to the respondents’ view, the Court is not functus officio. That is

because though the claims, grounds and reliefs sought are similar if not the

same as those pleaded in Miscellaneous Civil Cause No. 27210 of 2024 where

the Court held them to be res judicata the matter at hand is a constitutional

petition. It is incorrect to associate these two legal frameworks. I thus

disagree with the respondents’ suggestion that the remedy available to the

petitioner was to appeal to the Court of Appeal and not filing another case.

Understandably, and unlike Miscellaneous Civil Cause No. 27210 of 2024

which was the application for leave to apply for judicial review, the present

matter is a constitutional petition. Nevertheless, I firmly hold that once the

court has determined the matter to finality it becomes functus officio. It is

not open for the parties to relitigate it in the same court. However, that is

subject to the nature of legal regime under which the claim is anchored.

41
 Convincingly, the petitioner submitted that the High Court in

Miscellaneous Civil Cause No. 27210 of 2024 had no jurisdiction to determine

the matter because it ought to be a constitutional petition. But the petitioner

ignored the fact that the High Court in the said ruling went on holding that

the matter was res-judicata. Nevertheless, these are distinct legal regimes,

one is for judicial review and the other is constitutional petition. I thus find

this Court not to be functus officio or res-judicata to Misc. Civil Cause No.

27210 of 2014. The said principles do not apply in the present petition.

Despite that the petition is res-judicata as per the dictates of Court of

Appeal landmark decision in Mtikila No. 3 against independent candidate

to which the Court herein summoned the parties to address it. In

constitutional petitions, and public interest litigation like the petition at hand,

the matter is deemed res-judicata even though parties are not the same as

in Mtikila No. 3 so long other ingredients of res-judicata are present and

here is the issue of independent candidate. For detailed treatment of this

point see Onesmo Olengurmwa v Attorney General, Misc. Civil Cause

No. 36 of 2019, High Court Main Registry at Dar es salaam, and Jebra

Kambole (supra). As a result, the PO on res-judicata based independent

candidate Court of Appeal decision in Mtikila No. 3 raised by the court suo

42
motu and the parties were afforded to heard on the same is sustained. That

said and given that the PO has been sustained, the petition at hand is

incompetent for the court entertain the matter is res-judicata. I am alive to

the fact that the African Court of Human and People’s Rights in Mtikila and

Others v United Republic of Tanzania, Application No. 011/2011 (for

consistency I shall refer it as Mtikila No. 4) opined that the prohibition of

independent candidature in presidential, parliamentary and local council

elections in the United Republic of Tanzania Constitution 1977 is

discriminatory and restricts freedom of association. As it stands, the law in

Tanzania is clear and Mtikila No. 3 binds this court. This matter is thus res-

judicata, not justiciable and hence incompetent.

Elaborating further, this court is of the view that relying on Misc. Civil

Cause No. 27210 of 2014 may be misleading because it was on judicial

review, and it was not about constitutional petition. Although the parties in

their early submissions have not directly dealt with res-judicata, they have

touched upon it indirectly by referring to Misc. Civil Cause No. 27210 of 2014

which held the matter before that court was res-judicata. The parties battled

on a barren issue of functus officio and somewhat sidestepped the res-

judicata which prompted the court to summon them to address it on the

43
same. Therefore, it is my humble view what we should focus on is res-

judicata in relation to constitution petition particularly on issue of

independent candidate. The issue of res-judicata in constitutional petitions

is not new as for instance it has been held in Jebra Kambole v Attorney

General, Civil Appeal No. 236 of 2019 CAT (judgment delivered on15th June

2022) which was challenging death penalty under Section 197 of the Penal

Code [Cap 16] claiming to be unconstitutional. The issue of res-judicata in

the present case emanates from Court of Appeal decision in Mtikila No.3

on independent candidate. Although this petition questions independent

candidate in local government elections, in my view it still makes no

difference. The matter at hand is res-judicata because the point is on

independent candidate regardless of it being general elections or local

government elections.

Apart from above analysis, and as obiter dictum, the Court took liberty

of examining the Local Authorities (Elections) (Amendment) Act, Act No. 7

of 1992 [Cap 292 R.E.2002] providing for qualifications of candidates for

local authorities’ election.

To appreciate the dictates of the Local Authorities

(Elections)(Amendment) Act, Act No. 7 of 1992, its Section 9 prescribed

44
qualifications of candidates of local authorities election including to be a

member of and sponsored by a political party. This Section repealed and

replaced Section 39 of the Local Authorities (Elections) Act of 1979 on

qualifications of candidates for local government authorities’ election.

It should be noted that 1992 amendment of the Local Authorities

(Elections) Act was later followed by other amendments as reflected in the

Local Authorities (Elections)Act [Cap 292 R.E. 2002] particularly Section 39

providing for Qualification of candidates for Local Government

Authorities election. It provides that:

(1)A person shall be elected as a member of a Local Government

Authority or stand as a candidate at an election for Local Government

Authorities if he is qualified for election.

(2)A person shall be qualified for election if he satisfies the following

conditions, that is to say—

(a)he is a citizen of the United Republic;

(b)he has attained the age of twenty one years;

(c)he is not disqualified for election under the provisions of section 40;

(d)he is ordinarily resident within the area of jurisdiction of local

government authority;

45
 (e)he can read and write in Kiswahili or English;

(f)he is a member of and sponsored by a political

party registered as such by or under the Political Parties

Act Cap. 258

(g)he has a lawful means of livelihood;

(h)he has not been convicted for an offence of tax evasion within a

period of five years before election.

But aside from the above provisions of the Local Authorities (Elections) Act

setting qualifications of the candidates of local authorities’ elections, it is

understood that the current conundrum has somewhat been brought by the

enactment of the Presidential, Parliamentary, and Councillors’ Elections Act

No.1 of 2024 whose Section 167 repealed Local Authorities (Elections) Act

[Cap 292 R.E. 2002]. In as far as local government authorities’ elections are

concerned, this Act covered the councillors and excluded or is silent on

election of village, street and hamlet chairpersons. That is probably why the

Minister of State in the President’s Office Regional Administration and Local

Government promulgated the impugned subsidiary legislation, regulations

15 (f) of the GN 571 of 2024;14(f) of GN 572 of 2024;15(f) of GN 573 of

2024; and 15(f) of GN 574 of 2024. These regulations require the candidates

46
for local government authorities’ election of village, street and hamlet

chairpersons to be a member of and sponsored by a political party. The

petitioner argued without referring to the Act No.1 of 2024 that if the

Parliament wanted to exclude independent candidates, it would have done

so expressly in the Act. The respondents too un their submission neither

cited the Act No. 1 of 2024 nor referred to the repealed Cap 292 R.E. 2002

to provide background of candidate’s obligation to be member of and

sponsored by the party.

Deducing from the foregoing analysis is the fact that there is no

principal legislation providing for qualifications of candidates for village,

street and hamlet chairpersons in local authorities’ elections. However, it is

my profound view that despite absence of any principal legislation setting

out qualifications of candidates for village, street and hamlet chairpersons’

elections, the issue of constitutionality of candidate’s party membership and

sponsorship requirements has been tested by the Court of Appeal decision

in Mtikila No.3. It is thus not open for this Court to test it again in a manner

claimed in this petition.

Therefore, in the spirit of Court of Appeal decision in Mtikila No.3 the

petition is res-judicata. What the petitioner is asking the Court to examine is

47
a matter addressed or ought to be addressed by the parliament. Brutal as it

may sound, this petition is res-judicata, misconceived and hence

incompetent.

It is trite that the petitioner must perform what is set by the law as his

duty. That is to contest for the posts in the local government elections by

being a member of and sponsored by a political party. To that end, and as

above stated, this petition is dismissed for being res-judicata.

This being a public interest litigation, no order as to costs is given.

Order accordingly.

DATED at DAR ES SALAAM this 22nd Day of November 2024.

U. J. AGATHO

JUDGE

22/11/2024

48
Court: Ruling delivered today, this 22th November 2024 in the presence

of Fredrick Msaki, Advocate holding a brief of John Seka, Advocate and

the petitioner, and Daniel Nyakiha, Senior State Attorney and Francis

Wisdom, State Attorney for the respondents.

U. J. AGATHO

JUDGE

22/11/2024

49