THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT TABORA

CONSTITUTIONAL CASE NO. 000015892 OF 2025
ALEXANDER J. BARUNGUZA .............................. COMPLAINANT / APPELLANT /
APPLICANT / PLAINTIFF
VERSUS
NATIONAL ELECTORAL COMMISSION-NEC .............................. RESPONDENT /
DEFENDANT

JUDGMENT

MAHIMBALI, JUDGE OF THE HIGH COURT

Date of last Order: 04/08/2025 Date of Judgement: 07/08/2025 F.H. MAHIMBALI, J.: The petitioner is
Alexander J. Barunguza, who recently enrolled as an advocate of the High Court of Tanzania and
courts subordinate to it. He describes himself as a patriotic Tanzanian. By way of originating summons,
on 30 June 2025, the petitioner, under certificate of urgency, lodged this constitutional petition under
the provisions of Articles 26(2) and 30(3) of the Constitution of the United Republic of Tanzania of
1977 (as amended from time to time), section 4, 5 and 6 of the Basic Rights and Duties Enforcement
Act, Cap. 3 [R.E 2019] (“the BRADEA”) and Rule 4 of the Basic Rights and Duties (Practice and
Procedure) Rules, 2014. To appreciate the essence of the petition, we find it necessary to set out its
factual background as can be gleaned from the pleadings, albeit briefly. Essentially, the petitioner
alleges that he was aggrieved by the acts of the 1st Respondent, the Independent National Electoral
Commission, for the failure to accomplish the referendum process as stipulated by the Referendum Act,
Act No. 11 of 2013. The pleadings show that between 2011 and 2015, the United Republic of Tanzania
undertook a comprehensive constitutional reform process. It was anticipated that once the reform was
complete, a new Constitution would replace the existing Constitution of the United Republic of
Tanzania, 1977. In the reform process, the Constitutional Review Act of 2011 was enacted, inter alia, to
collect the public's views. Following a due process of collecting the public views, there was drafted the
proposed Constitution by the Constitutional Review Commission and later reviewed by the
Constitutional Assembly. Eventually, on 30 December 2013, the Referendum Act, 2013 was enacted
and assented to by the President of the United Republic of Tanzania. However, the process of
validating the proposed Constitution was not effected. The petitioner was irritated by such an act; thus,

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 he decided to file the instant petition seeking redress of the following orders: a) The declaration that
section 5(1)(2)(3) of the Referendum Act, 2013 is unconstitutional. b) The declaration that the act of
the Respondents on blocking, hindering and obstructing the constitutional review process for more than
nine years without consulting and involving citizens is unconstitutional. c) The declaration that
omission to provide reasons for blocking, hindering and obstructing the constitution review process for
more than nine years is unconstitutional. d) Declare and order that the 1st and 2nd Respondents,
between now and September, to effect all the necessary changes to the laws with a view to facilitating
voting in the referendum, and that the referendum be held any time before the commencing General
Election in October 2025 or alternatively during the National Election Day for October 2025. e) Any
other relief (s) and order (s) the Honourable Court may, in the circumstances, deem just and fit and
proper to grant. f) Costs be borne by the Respondent. The originating summons is supported by the
affidavit of Alexander J. Barunguza, the petitioner, which expounds the grounds for the petition.
Together with the above two documents, the affidavit of admissibility was also filed. In the Petitioner’s
statement of grounds upon which redress is sought, it is provided that, ahead of the referendum process
in which the citizens had to vote for or against the proposed new constitution, the Referendum Act was
enacted with such timelines of events until the “birth” of the new constitution or its rejection. For that
to happen, the 1st respondent had to comply with the entire schedule of events, including civic
education and sensitisation to the public, until the polling date of the proposed constitution pursuant to
section 5 (1), (2) and (3) of the Referendum Act. However, the objective was not achieved. It is the
petitioner’s concern that, an act of the Respondents in blocking, hindering and obstructing the
Constitution review process for more than nine years without consulting citizens violates Article 21(1)
and (2) of the Constitution of the United Republic of Tanzania of 1977. Thus, the provisions of section
5(1), (2), and (3) of the Referendum Act, 2013, violate Article 21(1) and (2) of the Constitution of the
United Republic of Tanzania, 1977. Furthermore, failing to provide reasons for hindering and
obstructing the constitution review process for over nine years breaches Article 18(d) of the
Constitution of the United Republic of Tanzania of 1977. The petitioner contends that the 1st
respondent had a constitutional obligation to adhere to the provisions of the Referendum Act within the
specified timeframe, and her failure to do so violated Article 26(1) of the Constitution of the United
Republic of Tanzania. When the petition was served on the respondents, it received a “fierce” attack,
first through a preliminary objection on the untenability of the petition, where the respondents
contended that; “The petition is untenable and bad in law for contravening section 8 (2) of the Basic
Rights and Duties Enforcement Act, Cap 3 R: E 2019”. Secondly, on the merits of the petition, the
respondents countered that there are no violations of the Articles and the Constitution, and the
petitioner failed to prove his petition on the balance of probabilities. At the hearing of the preliminary
objection and merits, the petitioner appeared in person, unrepresented. Conversely, the respondents
were represented by Mr. Mark Mulwambo, Principal State Attorney, Ms. Jackline Kinyasi and Mr.
Edwin Webiro, both State Attorneys. Following the urgency of the matter, by consent, the parties

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 waived their right to file written submissions. They opted to argue orally both the preliminary objection
and the merits of the petition simultaneously as per Eusto Ntagalinda vs. Tanzania Fish Process,
Misc—Civil Application No. 08 of 2011 (Tanzlii), to expedite the proceedings. Should the preliminary
objection succeed, the matter will end there by being struck out. However, if the preliminary objection
is overruled, the main application will be determined on its merits. To start with, the respondents' point
of law that the petition is untenable and bad in law for contravening Section 8(2) of the BRADEA, Mr.
Webiro argued that, according to the cited provision, the law clearly states that the High Court cannot
entertain any constitutional petition if there are other available remedies. To substantiate his argument
on the exhaustion of available remedies, he cited the cases of Tanzania Cigarette Co. Ltd vs. Fair
Competition Commission and another, Misc. Civil Application No. 31 of 2010 and Freeman Aikaeli
Mbowe vs. The DPP and another, Civil Appeal No. 3821 of 2021 (Both Tanzlii). From above, he stated
that according to the law and the cited cases, the requirement to exhaust available remedies is
mandatory and not optional. Furthermore, Mr. Webiro submitted that in the instant application, the
petitioner had other remedies available to exhaust before filing this constitutional petition; however, he
chose to file the petition without first exhausting the available remedies. To clarify his argument, he
stated that in the instant petition, the petitioner alleged that the first respondent had failed to execute his
statutory obligations imposed by section 5 of the Referendum Act No 11 of 2013. The reason was that
the 1st respondent had failed to hold a referendum as per the directive of the law; thus, the petitioner
claimed that the failure to comply with a statutory obligation had violated Articles 18 (d), 21 (1) (2),
and 26 (1) of the Constitution. Mr. Webiro further submitted that the settled position of law is that any
breach of statutory obligation by a public officer on public oath is amenable by way of a judicial
review, even when the breach may amount to a constitutional violation. To bolster his position on that
issue, he cited the cases of John Mwombeki Byombalirwa vs. The Regional Commissioner and
Regional Police Commander, [1986 TLR 73] and James Funke Gwagilo vs. The Attorney General
[1994 TLR 75]. He argued that since the petitioner was complaining that the 1?? respondent failed to
perform a statutory obligation under the section. 5 of the Referendum, therefore, the petitioner had an
alternative remedy to compel the 1st respondent to fulfil his obligation through a judicial review. The
learned state attorney also explained that the position of this court and the Court of Appeal has already
established that the mandate and actions of public officers or bodies originate from the Constitution.
Therefore, he argued that it is possible in the course of their duties, public officers might fail to perform
their statutory obligations. Thus, even if that failure appears to breach the Constitution, an action
against them cannot be brought by way of a constitutional petition if there are alternative remedies
available. To cement his position, he cited the case of Freeman Aikaeli Mbowe (Supra) and held the
view that, by interpretation, any violation with an alternative remedy must be exhausted before filing a
constitutional petition, even if there seem to be elements of constitutionality. On this, he cited the case
of Paul Kaunda Revocatus vs. The Speaker of the National Assembly and another, Civil Appeal No.
167 of 2021 (Tanzlii) and submitted that the circumstances in the cited case fit the circumstances of the

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 instant petition because the complaint by the petitioner was a failure to perform statutory obligations.
As for the available alternative remedy, Mr. Webiro stated that the petitioner may compel the 1st
petitioner to perform his statutory obligations through a writ of mandamus. Mr. Webiro also insisted
that constitutional petitions should not be treated as an alternative to normal civil cases. Therefore, if
there are alternative remedies, they should be exhausted first, as it was held in S.G. Group Security Co.
Ltd vs. The Attorney General and another, Misc—Civil Cause No. 30 of 2021 (Tanzlii). Therefore, he
urged this court that since the petitioner had bypassed the alternative available remedies, the petition is
rendered incompetent. Additionally, Mr. Webiro also submitted that the petition contained both the
reliefs found under the constitution and the reliefs under the judicial review. On this, he argued that in
law, litigants are duty-bound to ensure all reliefs sought fall within the court's jurisdiction. Because
mixing the reliefs automatically renders the petition incompetent. Further, he argued that it is not the
court's duty to filter through the pleadings and pick grains from chaff. He cited the cases of Hamis
Mdida and another vs. The Registered Trustees of Islamic Foundation, Civil Application No. 330/11 of
2022 and Malima Manyasi Bundala vs. KIUTA (1988) Ltd, Civil Application. No 122/17 of 2023
(Both Tanzlii). He concluded by submitting that the petitioner has an alternative remedy of judicial
review through mandamus; therefore, he prayed that the application be struck out for being
incompetent. In response, the petitioner began by distinguishing the cited case, Tanzania Cigarette Co.
Ltd (Supra). He stated that the circumstances in the cited case are different from those in the present
petition because, in the cited case, the complainant filed a case at the Fair Competition Tribunal;
however, he abandoned the case and filed for judicial review, whereas in this petition, the petitioner
contended that he was not informed and consulted regarding why the referendum was not held. In
distinguishing the cited case of Freeman Aikaeli Mbowe (Supra), the petitioner argued that, in the cited
case, the claims were based on EOCA and CPA, whereas in this petition, he is raising concerns about
the right to be informed and consulted. These violations were not covered by the Referendum Act, but
the rights are enshrined in the Constitution. Regarding the cited case of John Mwombeki Byombalirwa
(Supra), he distinguished the same by submitting that in the cited case, the issue was individual rights,
while in the instant petition, the petition concerns public interest or constitutional violations. Further, on
the cited case of James Funke Gwagilo (Supra), the distinction pointed out by the petitioner was that in
the cited case, the issue was the illegal act or decision of the public officer, whereas in this petition, he
complained of the non-failure of the 1?? respondent to inform and consult him on the failure of holding
a referendum. Lastly, he distinguished the cited case of Paul Kaunda Revocatus (Supra) by submitting
that the issue in that case was the difficulty in drawing the line between breaches of constitutional and
ordinary cases and in determining the appropriate forum, specifically whether by judicial review or
through constitutional court. Responding to the issues raised in the submission in chief, the petitioner
submitted that under section 8(2) of BRADEA, a person seeking redress has the option to pursue by
way of constitutional petition or other remedies as held in the cases of DPP vs. Angelina Ojare [1999
TLR 163] and [Kakutia Ole Pumpun and another vs. Attorney General, TLR 159 at page 164].

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 Therefore, the petitioner argued that under the principle of “domitis litis”, an aggrieved litigant has the
freedom to choose the forum to deal with a constitutional redress. In his further submission, the
petitioner argued that there is no absolute constitutional principle requiring the exhaustion of alternative
remedies that prevents the High Court from considering the claims of basic rights and duties on the
grounds that an alternative remedy exists. The petitioner stated that the above also aligns with the
principle of access to justice as held in the case of Julius Ishengoma Francis Ndyanabo vs. The
Attorney General, 2004 TLR 14. Furthermore, the petitioner stated that Section 8(2) of the BRADEA
was declared unconstitutional by the Court of Appeal in Onesmo Ole Ngurumwa vs. The Attorney
General, Civil Appeal No. 134 of 2022 (Tanzlii). He argued that since the law was yet amended, but by
the doctrine of stare decisis, this Court is bound by the decision of the Court of Appeal. Therefore,
since section 8 (2) of BRADEA has only one leg to stand, he argued that this court accords no weight
or validity to that provision of law. On why judicial review was not an alternative remedy, the
petitioner submitted that; First, in judicial review, an aggrieved party must first seek available remedies.
Therefore, by filing a constitutional petition, he would be able to exhaust available remedies before
resorting to a judicial review. Two, the Referendum Act, contains absurd provisions of law, such as
section 5. That law sets a time limit for certain actions. These actions are already overtaken by events
because the time limit has expired. Therefore, there is no point in filing for judicial review, as one
cannot compel a person to comply with a law that has already been overtaken by events. He explained
that the court has no power to order the amendment of section 5 of the Referendum Act by amending
the time limits while the timelines had already expired. In conclusion, he cited the case of the Attorney
General vs W.K. Butambala, 1993 I LR 46, where it was held that the Constitutional court should be
reserved for serious constitutional issues. He argued that a judicial review is not an alternative available
remedy because the Referendum Act is not a normal statute. It is a super or " constitutional statute
because it intends to amend and bring a new constitution. Thus, even its amendment differs from other
statutes. In a brief rejoinder, Mr. Webiro stated that paragraphs 6 and 7 of the originating summons and
from paragraph 13 to 18 of the affidavit indicate that the petitioner’s complaint was on the 1??
respondent’s failure to perform his statutory obligation. Therefore, the complaint is amenable to judicial
review, compelling the public officer to provide reasons why he did not consult the petitioner before
halting the holding of a referendum. He further reiterated that the cited case, though distinguished by
the petitioner, insisted that the petitioner’s claims were supposed to be referred to the redress through a
judicial review, especially based on the cited case of Freeman Aikaeli Mbowe (Supra), which is very
applicable in the circumstances of this petition. Commenting on the cited case of Kukutia Ole Pumpun
(Supra), which was delivered in 1993, Mr. Webiro argued that the decision was made before the
enactment/coming into force of BRADEA in 1995. Thus, the case has already been overtaken by
events. Regarding the cited case of Anjelina Ojare (Supra), he stated that the holding is persuasive
because it is a decision of the High Court. Further, the High Court in that case did not deal with section
8 (2) of BRADEA. Responding to the issue of access to the court and the cited case of Julius

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 Ishengoma Francis Ndyanabo (Supra), Mr. Webiro agreed that the constitution guarantees access to
courts. However, section 8 (2) of BRADEA provides for a procedural requirement on how to access the
court on constitutional matters. Mr. Webiro further argued that in the cited case of Onesmo Ole
Ngurumwa (Supra), the Court of Appeal did not declare section 8 (2) of BRADEA unconstitutional;
thus, the provision is still in force. Furthermore, he argued that even if there was an assumption that the
provision was declared unconstitutional, still the time given by the court to amend the law was yet to
expire. Therefore, the litigants were still bound by that provision of law. Regarding the expiration of
time limits in the Referendum Act, Mr. Webiro argued that the petitioner failed to substantiate the
claim by any law. He also insisted that non-compliance with statutory obligations should be challenged
through judicial review, and the petitioner was bound to do so. If the judicial review were rejected, then
the petitioner would be able to file a constitutional petition after exhaustion of remedies. In conclusion,
he stated that first, the petitioner failed to cite any law in the Referendum Act, that his rights were
violated, and second, the Referendum Act, like other statutes, was enacted by the parliament. The
reason that it was enacted for the purpose of enacting a new constitution did not mean it was different
from other statutes. Therefore, if there is any obligation not complied with by the 1st respondent, he
could still be compelled to comply, like in other statutes. The petitioner had alternative remedies before
filing the constitutional petition. If the petitioner was not given the reason why the process of acquiring
a new constitution did not progress, that was amenable through judicial review for the petitioner to
compel the 1?? respondent to give him reasons. Having carefully scanned the available material and
dispassionately considered the rival submissions from the parties, and having painstakingly read the
pleadings, we are invited to determine the merits of the raised objection. A careful scan of the
preliminary objection raises two critical issues for determination. One, this court is not fit to determine
the constitutionality of section 5(1)(2)(3) of The Referendum Act, 2013, because the petitioner was
supposed to exhaust other available remedies first. Two, the petition contains the reliefs found under
the constitution, such as the right to be consulted and informed, the halting of the referendum and the
relief under the judicial review, such as the the constitutionality of section 5(1)(2)(3) of The
Referendum Act, 2013, because there are other available remedies. On the first aspect, it is not in
dispute that this application was brought under Articles 26(2) and 30(3) of the Constitution, as a public
interest matter. This is because Article 26 (2) of the Constitution provides that 26-(2) Every person has
the right, in accordance with the procedure provided by law, to take legal action to ensure the protection
of this Constitution and the laws of the land. 30-(3) Any person claiming that any provision in this Part
of this Chapter or in any law concerning his right or duty owed to him has been, is being or is likely to
be violated by any person anywhere in the United Republic, may institute proceedings for redress in the
High Court Flowing from above, the law is already settled by the Court of Appeal in Onesmo Ole
Ngurumwa (Supra) that the exhaustion of local remedies lies between matters involving public and
private interests touching the violation of the constitution. As per the pleadings, as we previously
alluded to, it is clear that the petitioner has brought this matter in terms of Article 26(2) of the

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 Constitution, which is specially for public interest litigations, and the respondent did not dispute that
allegation. Further, as per the pleadings, the object of the Referendum Act was to bring into operation
the new constitution, and the petitioner is challenging the Constitutionality of Section 5 (1) (2) and (3)
of the Referendum Act, claiming it affects the public at large. From those facts, it is clear that the
petition is of public interest. In the cited case of Onesmo Ole Ngurumwa (Supra), the Court of Appeal
held that; “…section 4 of the BRADEA is a replica of section 8 (2) of the same Act”. Further, it held
that; “We had an opportunity to revisit section 8 (2) of the BRADEA, which provides: 57(2) The High
Court shall not exercise its powers under this section if it is satisfied that adequate means of redress for
the contravention alleged are or have been available to the person concerned under any other law, or
that the application is merely frivolous or vexatious." In the light of the provisions above, we agree
with the High Court that the said requirement existed even before the amendment of section 4 of the
BRADEA. We note that at page 699 of the record of appeal, the High Court agreed with the petitioner
that exhaustion of [available] local remedies is a challenging component, as it is not easy to make a
clear and direct claim of exhaustion of available remedies. Nonetheless, through the discussion and
determination, the High Court failed to answer the appellant's argument that there are no other available
remedies to enforce the right under Article 26 of the Constitution except by way of petition to the High
Court, as it has been the practice since the introduction of the Bill of Rights in the Constitution. In the
circumstances and having weighed the arguments by the counsel for the parties, we agree with the
appellant's position. As such, in terms of Articles 26 and 30 (3) of the Constitution, the High Court is
vested with powers to deal with constitutional matters seeking to protect the Constitution or expose its
violation. ……………………………………………………………………………….. Short of that, we
must say, currently there are no known regulations to enforce Article 26 of the Constitution other than
the practice which had existed for quite a number of years in our legal system”. [ Emphasis provided]
Therefore, following the decision of the Court of Appeal in the case cited above, it is clear that, under
the doctrine of stare decisis, this court is bound by that decision. Consequently, the issue of the
constitutionality of section 5(1)(2)(3) of The Referendum Act, 2013, raised under Articles 26(2) and
30(3) of the Constitution, as a matter of public interest, is “fit” and suitable for determination by this
Court as a constitutional issue. The above reasoning led us to conclude that the cases of Tanzania
Cigarette Co. Ltd, Freeman Aikaeli Mbowe, and Paul Kaunda Revocatus (Both Supra), cited by the
respondents, are irrelevant in the context of this petition, as others concerned private interest, whereas
this matter pertains to public interest. On the other aspect that the petition contains both the reliefs
found under the constitution, i.e, the right to be consulted and informed, the halting of a referendum and
the relief under the judicial review, i.e, the constitutionality of section 5(1)(2)(3) of the Referendum
Act, 2013, because there were other available remedies, the issue should die a “natural death. This is
because what was complained about, as it has other alternative remedies, is the issue of the
constitutionality of section 5(1)(2)(3) of the Referendum Act, 2013. Therefore, without demur and
hesitation, as we have already held previously, we maintain that the issue of the constitutionality of

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 section 5(1)(2)(3) of The Referendum Act, 2013, falls squarely under a public interest. Thus, it is a
constitutional matter, and this court has jurisdiction to preside over it as constituted. There would be no
more “grains and chaff” to pick, as we are of the view that all the reliefs claimed fall under the
constitutional petition. In the upshot, the preliminary objection is meritless, and it is dismissed in its
entirety. On the merit of the petition, as per the directives of the Court of Appeal in the Attorney
General vs. Reverend Christopher Mtikila, Civil Appeal 45 of 2009 (Tanzlii), on framing issues before
hearing a constitutional petition, by consensus, in the instant petition, three issues were framed. The
issues are; i. Whether section 5 (1) (2) and (3) of the Referendum Act violates Article 21 (1) and (2) of
the URT Constitution of 1977 as amended from time to time. ii. whether the act of the 1st respondent of
not holding without giving reasons and consulting the petitioner violated Articles 18 (d), 21 (1), (2) and
26 (1) of the Constitution iii. To what reliefs the parties are entitled to. Briefly, on the first raised issue,
the petitioner stated that the impugned provision is unconstitutional and infringes upon his rights under
Article 21(1) and (2) of the Constitution for being absurd. He referenced the case of Pointe Claire
(City) v. Quebec, Labour Court, 1997 [1 S.C.R] 1015, where absurdity has been defined to mean
something illogical, incoherent, or incompatible with other provisions or with the object of the
legislative enactment. He also relied on the case of Reyes vs. R (Belize) [2002 UK PC11 2WLR], in
which the Privy Council at page 1034 paragraph 26 stated that; "When an enacted law is said to be
incompatible with a right protected by a constitution, the court's duty remains one of interpretation, and
then it must decide whether the enacted law is incompatible or not”. In relation to the instant petition,
the petitioner argued that the impugned provision of law is absurd because it contains issues that should
have been done but were not. Further, those issues cannot be addressed without amending that
provision of the law. Therefore, he was of the view that since the impugned provision of law is absurd,
thus unconstitutional and contrary to the object and purpose of the Act, as provided in its long title. In
further support, the petitioner cited the case of Steven Masatu Wasira vs Joseph Sinde Warioba and
another, (1999) TLR 70, on the remedy when the court proved the absurdity of the provision of law. In
that case, it was held that; "When the absurdity of a legislative provision is raised and proved, the Court
can declare the provision absurd. That is because the legislature never intended to enact the law that
possesses absurdity" Furthermore, he argued that a provision that creates absurdity is void. On this, he
cited the case of the Attorney General vs. Loohay Akoonay and another,1995 TLR, where it was held
that; "It is a rule of interpretation that a law should not be interpreted to lead to absurdity: Therefore,
the provision of law is absurd, therefore unconstitutional”. Therefore, based on the above submissions,
the petitioner prayed this Court to declare Section 5 (1), (2) and (3) of the Referendum Act
unconstitutional. Regarding the 2nd issue, the petitioner briefly submitted that the failure of the 1st
respondent to conduct the referendum without informing and consulting him for nine years has
breached the Constitution and thus infringed his rights guaranteed under Article 18(d) and 26(1) of the
Constitution of the United Republic of Tanzania. On the 3rd issue regarding reliefs, he briefly implored
this court to grant the reliefs sought in the originating summons. In his conclusion, the petitioner raised

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 the validity of the reply to the originating summons and the joint counter affidavit filed by the
respondents. He argued that the 1st respondent is a corporation as per Order XXVIII Rule 1 of the Civil
Procedure Code. However, the documents were signed by the principal officer of the 1st respondent,
who, in his opinion, was not an authorized person. To buttress his argument, he cited the case of
Bensons Enterprise Ltd vs. Mire Artan, Civil Appeal No. 26 of 2020 (Tanzlii), which defined a
principal officer to mean; “A person elected or appointed by the body of directors to manage daily
activities of the corporation, such as the CEO, President, Treasurer or Secretary." Furthermore, he
stated that section 19 of the INEC Act mentions the Director of Elections as the Chief Executive
Officer; therefore, the documents in his considered view were signed by an unknown person, as were
expected to be signed by the Director of Elections himself – Mr. Ramadhani Kalilima – for the time
being. Additionally, he submitted that the documents indicate the person who signed was duly
authorized; however, there was no evidence of an instrument to confirm the said authorization as
alleged. In response to the first issue, Ms. Kinyasi stated that the main argument in the issue was the
constitutionality of section 5 of the Referendum Act, with the petitioner claiming that it is incompatible
with the object and purpose of the Referendum Act. She explained that section 5 of the Referendum
Act mandated the 1st respondent to hold a referendum. Tasked him to issue 14 days’ notice to specify
the period for sensitization and public awareness on the referendum, the day on which the referendum
is to be held and the polling time of the referendum. Also, it mandated the 1st respondent to provide
civic education on the proposed Constitution. From the above, she stated that, as per the case of
Christopher Mtikila vs. The Attorney General, 1995 TLR 31, the constitutionality of the law or statute
is not found in what could happen in its operations (possibilities), but in what is actually provided for
by that law. Therefore, she argued that the provision of law is compatible, and the issue of abusing its
operation does not make the law or provision of law unconstitutional. She also cited a Kenyan case of
Owuor E. Mboya vs. Kenyatta University, Petition No. E 376 of 2022 HC of Nairobi, where it was held
in a constitutional petition that a petitioner should set out with a reasonable degree of precision the
provision they are challenging, the matter in which it is alleged to be infringed, and the manner in
which it is claimed to be infringed. Furthermore, she argued that in their view, Section 5 of the
Referendum Act is not absurd as the petitioner failed to prove on the balance of probabilities that his
constitutional rights were violated. In the case of Tito Magoti vs. The Attorney General, Civil Cause
No. 18 of 2023 (Tanzlii), which referred the case of Donald Sanga, it was held that in constitutional
matters, the petitioners must prove their case on the balance of probabilities. In conclusion, she insisted
that section 5 of the Referendum Act was compatible with Article 21 of the Constitution, as it granted
citizens the right to participate in civil and political activities. On the 2nd issue, she stated that it was
true that section 5 of the Referendum Act provided for the timelines for some acts to be done. That time
had expired, and the referendum process did not take place. The reason was that the voters' register was
in the process of being updated. Furthermore, she argued that Article 21 of the Constitution allows for
the exercise of rights under other laws. Conversely, eligibility to participate in the referendum process

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 requires registration on the voters’ register as specified in section 9 of the Referendum Act. She also
mentioned that, unfortunately, the update of the voters' register coincided with the National Elections.
That was why the timelines under section 5 of the Referendum Act lapsed and became inoperative.
She argued that although time lapsed, that does not mean Section 5 of the Referendum Act is
unconstitutional. Additionally, Ms. Kinyasi argued that the petitioner was supposed to prove that he
was a registered voter and had a right to participate in a referendum as per Section 9 of the
Referendum Act, because being a citizen does not by itself give one a right to participate in a
referendum. Therefore, she submitted that the petitioner failed to prove his claims on the balance of
probabilities as far as the 2nd issue is concerned. On the 3rd issue, she prayed the court to declare that
the petitioner has failed to discharge his duty to prove the petition. In addition, she made reference to
one of the reliefs for which the petitioner prayed this court to grant as already overtaken by events, i.e;
“To declare and order the 1st and 2nd Respondent, between now and September, to effect all
necessary changes to the laws with a view to facilitating voting in the referendum and that the
referendum be held any time before commencing the national election on October 2025, or
alternatively, during the National Election Day for October 2025”. Since as of now, the Parliament,
through G. N. 486 of 2025, was already dissolved on 3 August 2025, she invited this Court pursuant to
section 59 of the TEA to take judicial notice of that while also relying on the case Fatuma Karume vs.
Attorney General, Misc. Civil Application No. 8 of 2021 (Tanzlii). Adding to what Ms. Kinyasi had
already submitted, Mr. Webiro responded to the petitioner’s submission on the aspect of the cited
cases of Steven Masatu Wasira and Loohay Akoonay (Both Supra), and commented as follows;
Regarding the case of Wasira (Supra), he stated that the submission by the petitioner was contrary to
what the petitioner submitted. Mr. Webiro stated that the issue, which posits that an absurd provision
should be declared unconstitutional, was submitted by the advocate but rejected by the court as there
was no absurdity found. Another cited case of Loohay Akoonay (Supra), Mr. Webiro stated it dealt
with the interpretation of law, and there was nowhere it was held that when a provision is absurd, it
should be declared unconstitutional. On the issue of the validity of the documents signed by the
Principal Officer, Mr. Webiro argued that at page 9 of the cited case of Bensons (Supra), the Court of
Appeal elaborated on the persons who can sign documents for the corporation or company, which
included the principal officer. It is his submission, that the same case authority by its digest defeats the
petition's submission because the principal officer is an authorized officer who can sign the documents
on behalf of the corporation. He further argued that in the said 1st Respondent’s reply documents, it
was indicated that the principal officer was authorised to do so and the facts were within his
knowledge. To substantiate his argument, he cited the case of Permanent Secretary, Ministry of
Defence and National Service vs. Bacco and Ayubu Trading Co. Ltd, Civil Application No. 874/06 of
2023 (Tanzlii), where the Court of Appeal already settled a position of law that when it is shown in the
affidavit that a person is duly authorized, that suffices. Additionally, he stated that it was undisputed
that the documents were duly signed by the authorized principal officer; therefore, he had expected the

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 petitioner to establish how the signing officer was not competent for want of authorization as alleged.
As the objection had just been brought by surprise, he could not argue further. In rejoinder, the
petitioner started with the cited case of Christopher Mtikila vs. The Attorney General, 1995 TLR 31
(Supra), and argued that the principle in that case was that if a provision of law is valid, a mere abuse
in its application cannot make it unconstitutional. However, in his view, the provisions of section 5 of
the Referendum Act were neither valid nor reasonable. Furthermore, they are inoperative. Therefore,
the cited case cannot be applied as the complained provisions of law are inoperative. Moreover, the
issue that the referendum was halted because of the national elections did not feature anywhere.
Concerning the Government Notice which dissolved the Parliament, he stated that the Referendum
Act was enacted by a special constitutional assembly. Therefore, in case of an amendment, the Special
Constitutional Assembly will have the mandate. On proving on the balance of probabilities, he stated
that it was the 1st respondent who had the voters’ register, who was then required to prove whether or
not the petition was registered. Lastly, regarding the signing of the document, the counsel for the
respondent did not specify who the principal officer was. Appreciating the parties’ submissions, it is
now opportune for this court to determine the merits or otherwise of the petition. Before we go to the
merits of the discussion of the petition, we first appreciate the manner in which the parties have been
brief and straight to the issues. Now back to the issues. For a law to be declared unconstitutional, the
petitioner has to prove on the balance of probabilities that the law violates the Constitution. This was
the position of this Court in the case of Tito Magoti vs Attorney General (Misc. Civil Cause No.
18/2023) [2024] TZHC (Tanzlii), where it was held that; “Generally, as captured by section 110 of
The Evidence Act Cap 6 R.E 2022, the person who makes any allegation carries a burden of proof as
per the case of Dickson Paulo Sanga, the standard of proof in a Constitutional Petition is on the
balance of probabilities. It is a trite law that the petitioner has a duty to establish a prima facie case”
Thus, a provision of the statute claimed to violate the Constitution cannot be confirmed by mere
inference, but rather the petitioner must prove that there is actual violation on the balance of
probability as observed in the cited case above. Therefore, the petitioner must prove either of the
following: first, that the law is inconsistent with the provisions of the constitution, as outlined in
Article 64(5) of the Constitution of the United Republic of Tanzania (CURT), which states that if any
other law conflicts with the provisions of the Constitution, then the Constitution shall prevail and the
other law shall be void to the extent of its inconsistency. Second, the law violates the fundamental
rights and duties enshrined in Articles 12-29 under Part III of the Constitution and third, the law is
arbitrary and disproportionate. From above, we will start with the 1st issue on whether Section 5(1)(2)
and (3) of the Referendum Act violates Article 21 (1) and (2) of the Constitution. The petitioner relied
on the cited cases of Pointe Claire and Reyes (Both Supra), and alleges that section 5 (1) (2) and (3) of
the Referendum Act is unconstitutional because it is an absurd provision and incompatible with the
object and purpose of the Act itself. His reason to hold that stance was that the provisions contain
obligations which should have been complied with by the 1st respondent but were not. The said

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 obligations were the timelines for some acts, which were not met, and these timelines had lapsed.
Thus, relying on the cited case of Loohay Akoonay (Supra), he argued that a provision of law that
creates absurdity is void, hence unconstitutional. We agree, and that is the position of the law as it was
held by this Court in Joran Lwehabura Bashange vs. Minister for Constitutional & Legal Affairs and
Another, Misc. Civil Cause No. 12 of 2023 (Tanzlii) at page 38 held that: “Incoherence of the law
could also lead to absurdity...... When the absurdity of a legislative provision is raised and proved, the
Court can declare a provision of the law unconstitutional. That is because the legislature never
intended to enact the law that poses absurdity.” See also the cited case of Stephen Masatu Wassira
(Supra) Now, the question is, did the petitioner prove the absurdity of the impugned provision against
Article 21(1) and (2) of the Constitution as claimed? At this juncture, we think it is imperative first to
reproduce the impugned provision and the claimed violated Article of the Constitution. Section 5 (1),
(2) and (3) of the Referendum Act read that (1) The Commission shall, within fourteen days after
publication of the referendum question in the Gazette, specify- (a) the period for sensitization and
public awareness on the referendum for the proposed Constitution; (b) the day on which the
referendum is to be held; and (c) The polling time of the referendum. (2)Every referendum returning
officer shall, within twenty one days from publication of the notice by the Commission, notify the
public in his respective constituency about the procedure for the conduct of the referendum. (3) For
the purposes of sensitisation and public awareness on the referendum for the proposed Constitution,
the Commission shall provide civic education on the proposed Constitution for a period of sixty days
from the date of publication of the proposed Constitution in the Gazette. The question is whether the
provisions violate Article 21 (1) and (2) of the Constitution. The Articles read that; 21.-(1) Subject to
the provisions of Article 39, 47 and 67 of this participate in Constitution and of the laws of the land in
connection with the conditions for public affairs electing and being elected or for appointing and being
appointed to take part matters related to governance of the country, every citizen of the United
Republic is entitled to take part in matters pertaining to the governance of the country, either directly
or through representatives freely elected by the people, in conformity with the procedures laid down
by, or in accordance with, the law. (2) Every citizen has the right and the freedom to participate fully
in the process leading to the decision on matters affecting him, his well-being or the nation. By
reading and reviewing sections 5 (1), (2) and (3) of the Referendum Act against the wording in Article
21 of the Constitution, it is clear that in a plain interpretation, the provision of law mandated the 1st
respondent to issue notifications to the public on the period for sentitization and public awareness,
polling date and time for the referendum. Further, the provision of the law promoted for public
awareness, sensitization to the public, civic education and timelines for the referendum to be carried
out. Therefore, in our view, not only were the provisions aligned with the Articles of the Constitution,
but also promoted the spirit of Article 21 (1) and (2) of the Constitution, which guarantees the citizens
a right to participate in public affairs. Such a provision cannot in any way be termed as incoherent,
illogical or incompatible with Article 21(1) and (2) of the Constitution. It is our firm finding that the

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 impugned provision of law aligned with its title, which intended to facilitate decision-making by the
people. That title reads: “An Act to provide for legal and institutional framework for the conduct of
referendum with a view of making decision by the people on the proposed Constitution, and for other
related matters”. Therefore, contrary to what the petitioner wanted this Court to believe, it is clear that
sections 5 (1), (2), and (3) of the Referendum Act further explained and advanced the purpose of the
Act, as the impugned provision clearly involves the public in the decision-making process related to
the referendum. Furthermore, when vetting whether a provision of law is void and unconstitutional, it
is crucial to examine the actual content of the alleged unconstitutional provision or law, rather than
focusing on non-compliance with its provisions. On this, the law is already settled in the cited case of
Christopher Mtikila vs. The Attorney General, 1995 TLR 31 (Supra), where the Court of Appeal held
that; “The constitutionality of a statutory provision is not found in what could happen in its operation
but in what it actually provides for; the mere possibility of a statutory provision being abused in actual
operation will not make it invalid”. Therefore, as correctly submitted by Ms. Kinyasi and as
previously alluded to, the impugned provision clearly promoted awareness, sensitisation to the public,
civic education, and timelines for the referendum to be carried out. In our view, the provisions were
therefore aligned with the Articles of the Constitution. Thus, non-conformity of what was contained in
the law in actual operations could not invalidate or violate the Constitution. In fact, the provisions of
section 5 (1), (2), and (3) of the Referendum Act were good law. Thus, in totality, our holdings in the
first are: One, section 5 (1) (2) and (3) of the Referendum Act did not violate Article 21 (1) and (2) of
the Constitution. Two, non-conformity of a provision of law cannot make that provision of law
unconstitutional and; Three, when a provision of law is overtaken by events, it does not mean that the
provision of law is absurd and unconstitutional. Therefore, the 1st issue is answered in the negative as
it is devoid of merit. Additionally, in the pleadings, the petitioner’s allegations were to the effect that
the provision of Section 5 (1) (2) and (3) of the Referendum Act violates Article 21 (1) and (2) of the
Constitution. However, in his submission, he departed from that position and came up with a new
approach, stating that the very provision of law is absurd. On this, we wish to remind the parties that
they are bound by their pleadings. This stance was emphasised by the Court of Appeal in numerous
authorities, including Makori Wassaga vs. Joshua Mwaikambo and another [1987] TLR 88, where it
was held that: "A party is bound by his pleadings and can only succeed according to what he has
averred in his plaint and proved in evidence; hence, he is not allowed to set up a new case. [Emphasis
provided] That practice is discouraged as clearly stated by the Court of Appeal in Rosemary Stella
Chambe Jairo vs. David Kitundu Jairo, Civil Reference No. 6 of 2018 [Tanzlii], when it held that;
“The practice abhorred and discouraged by the Court”. All in all, as we have already held, the first is
devoid of merit. Coming to the 2nd issue on; “Whether the act of the 1st respondent of not holding a
referendum without giving reasons and consulting the petitioner violated Articles 18 (d), 21 (1), (2)
and 26 (1) of the Constitution”. In our view, it is clear that the allegations of the petitioner seem to be
founded under Section 5 of the Referendum Act, where the 1st respondent was mandated to notify the

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 public on the process and timelines of conducting a referendum. Articles 18(d) of the Constitution
provide that; ”18 (d) Every person has a right to be informed at all times of various important events
of life and activities of the people and also of issues of importance to the society.” Article 26 (1) also
provides that: “26 (1) Every person has the duty to observe and to abide by this Constitution and the
laws of the United Republic.” However, in Tito Magoti (supra), it was held that; “Where a provision is
reasonable and valid, the mere possibility of its being abused in its operation does not make it invalid’’
Therefore, in our view, the non-performance of the 1st respondent to comply with Section 5 of the
Referendum Act by failing to inform and involve the petitioner in the process of the referendum does
not in law amount to a violation of the Constitution. Additionally, as rightly submitted by Ms. Kinyasi,
the eligibility to participate in the referendum is as provided by Section 9 of the Referendum Act. That
section reads that; 9.- (l) The register of voters established under the National Elections Act and the
Zanzibar Elections Act shall be the register of voters for the purpose of the referendum. (2) A person
whose name is entered in the register of voters established under the National Elections Act or the
Zanzibar Elections Act shall, unless that person is prohibited from voting by any other written law, be
entitled to vote at the referendum. In this petition, paragraph 8 of the affidavit the petitioner avers that
he was not consulted in the process of halting the referendum to the proposed constitution. In that
paragraph, it was written that; “The failure to conduct the Referendum as scheduled greatly affected
the Petitioners who were consulted in the process, leading to the presentation of the proposed
constitution”. However, there is no evidence that he was eligible to participate in the referendum as
per the requirements of section 9 of the Referendum Act to be entitled to be involved in the process.
Therefore, though he has a valid point, on balance of probabilities, the petitioner failed to establish
whether he is a duly registered voter to be involved. Otherwise, it is our findings that non-performance
of the duties vested to the 1st respondent to conduct a referendum as per section 5 (1) (2) (3) of the
Act does not breach the constitution. Thus, the second issue is decided in negative as well. Before we
determine the third issue, we wish to briefly comment on what the petitioner seemed to challenge the
competence of the 1st respondent’s pleading, claiming that the signatory to it was an unauthorised
officer. Therefore, he alleged that the documents were contrary to Order XXVIII, Rule 1 of the CPC.
On a digest of the parties’ submission, we are of the considered view that this issue was wrongly
raised at the time of hearing, while it was not canvassed in the reply to the counter-affidavit.
Therefore, it was not raised properly. Nevertheless, as he who alleges must prove, it was expected that
the petitioner would supply the Court with relevant material on the incompetency of Mr.Seleman M.
Mtibora as the 1st Respondent’s principal officer. Further, the law is clear that when a Principal
officer who is duly conversant with the matter is authorised to sign the affidavit or document and that
authorisation is shown in the affidavit, that suffices to make the document valid. See Mohamed
Abdillah Nur and three others vs. Hamad Masauni and two others, Civil Application No. 436/16 of
2022 (Tanzlii). Therefore, the issue of the validity of the documents filed by the respondents is devoid
of merit. As to what reliefs the parties are entitled to, having answered the first two issues in the

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 negation, it is obvious that the reliefs sought by the petitioner are inconsequential save the
respondents’ prayer of dismissal. Accordingly, we dismiss the petition for want of merit. No orders as
to costs, it being a constitutional matter of vast public interest. Dated at Tabora, this 7th day of
August, 2025.

Dated at TABORA this 7th of August 2025 .

F. H MAHIMBALI

JUDGE OF THE HIGH COURT

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