By Evarist Baimu Nyaga Mawalla - Home

In para 5 the petitioner claims that contrary to Art. 21 (2) of the Constitution hehas been denied the right to participate in making decisions on matters effecting thenation to wit. In making a new Constitution through a national conference or a broad –based constitutional commission and a referendum and therefore prays in para 19(a) foran order directing the government to set that process in motion. This is one of thosematters which manifest a miscomputing between executive, legislative and judicialfunction.I know that the question of a new constitution and even a referendum is aburning issue at the moment. And I venture to say that it would be impolitic to turn ablind eye and a deaf ear to this reality. Yet I do not see how the court can make the orderprayed for in the present state of the law without appearing to infringe on the spheres ofother organs of government.In order for such an order to be made there should be a law or parliamentary motion inplace upon which those organs can be called upon to act. We do not, for instance, have areferendum law, and you do not simply call out people from their homes and tell them todrop ballots in this or that box; and even if you did, that would be a procedure already.Mr. Mussa generally attacked this and similar demands by the petitioner that they had theeffect of depicting the court as having “roving superintendence over an undefined field”Mr. Mbezi replied by citing the case of D.P.P.V Daudi Pete, Court of Appeal CriminalAppeal No. 28 of 1990 (unreported) in which the court held that the High Court hadunlimited inherent original jurisdiction to adjudicate upon any legal matter unless there isexpress statutory provision to the contrary” It seems that Mr. Mbezi did not see thesignificance of the work “legal” in that statement.The High Court cannot, therefore, adjudicate on matters that are purely political asdistinction from legal issues. Fence, while conceding unequivocally, that every citizen isentitled to participate in the making of decisions on matters affecting his country, theonly mode of participation now available is election of representatives to the NationalAssembly. Another modes are provided for their more imagination does not provide alegal basis for the court to make the order prayed for para 5 and 19 (a) are accordinglystruck out.Para 6 is evidently vague and consists of political breaking. The petitionercomplains that the government continues to behave it is Tanzania still a one partytemporary and calls upon this court in para 19 ( to make a declaration that there is needfor the formation of a transitional government. In para 19 (e) he invites the court todisestablish the present government.I think with respect. That this is turning a court of law into a political battle ground.Indeed in Mbezi said that the petitioner should be permitted to be heard even if his claims194