By Evarist Baimu Nyaga Mawalla - Home

I agree and can not wish to add anything more. In this petition the dispute is over thevalidity of various laws and this, in my view, constitutes the necessary cause of action. Asituation could certainly arise where the cause of action would depend upon actual,exercise of power.Such a situation is exemplified in this petition where the constitutionality of theappointment of Zanzibaris to non- union positions on the Mainland is questioned. In thatcontext it is the appointments themselves that constitute the cause of action our that hasto do with the validity of the action rather than a law. There now remains the question ofjusticiability of the claims but since that has more to do with the first of the issues, I willnow turn to consider them.The first issue seeks to determine the immutability of basic rights enacted in theConstitution. This turns on the power of the Parliament to amend the provisionsproviding for these rights. Specifically, what is at issue are the amendments to Art. 20and Art. 39 of the Constitution vide the Eighth Constitutional Amendment Act, 1992. Inthe original form Art. 20 read as follows:20 – (1) Subject to the laws of the land, every person is entitled to freedom ofpeaceful assembly, association and public expression, that is to say, the right to assemblefreely and peaceably, to associate wit other persons and, in particular, to form or belongto organizations or associations formed for the purposes of protecting or furthering his ornay other interests.(2) Subject to the relevant laws of the land, a person shall not be compelled to belong toany association.In its amending form clause (1) remains unaffected, hence the rights and freedoms spoltout therein remain as before. Our interest in this petition centers on the freedom ofassociation which, under the present multi-party system, includes the formation ofpolitical parties. Clause (2) was also unaffected by the amendment save that it nowbecame clause (4). In between there are new clauses (2) and (3) which it is necessary toset out in full. (The translation from Kiswahili is partly my own and partly adapted.)(2) Without prejudice to subsection (1) no political party shall qualify forregistration if by its constitution and policy –(a) It aims to advocate or further the interests of -(i)(ii)(iii)Any religious belief of group;Any tribal, ethnic or racial group;Only a specific area within any part of the United Repulic;207