By Evarist Baimu Nyaga Mawalla - Home

Until the Legislature makes appropriate arrangements for this purpose, it shall besufficient for a notice of such assembly or procession to be lodged with the police, beingdelivered a copy to the District Commissioner for his information.In reaching this decision, I am certainly aware of the decision cited to me in C.Mtikila & Ors V.R. Criminal Appeal NO. 90 of 1992 (Dodoma Registry – Unreported).In that case the present petitioner and others were charged before the District Court ofDodoma with three counts, the first of which alleged “refusing to desist from convening ameeting or assembly after being warned not to do so by police officers contrary tosections 41 and 42 of the Police Force Ordinance, Cap. 322. They were convicted andfined 500/= each.They appealed to this Court and it was contended, inter alia, that s. 41 wasunconstitutional. Mwalusanya, J. agreed and said; “I construe section 41 of the PoliceForce Ordinance to be void. From now onwards this section is detected from the statuteBook.” I am given to understand that an appeal has been lodged against that decision.The fact that an appeal is pending naturally restrains me in my comments on thatdecisions, yet I cannot avoid to show, albeit briefly, why I find that decision difficult togo by. The learned judge did not merely hold s. 41 to be unconstitutional; he went furtherand held the entire trial to be a nullity. He said between pp. 23 and 25 of his judgment:In my judgment I find that the denial by the trial magistrate to have the appellants haveaccess to the documents they – required for their defense was a fundamental defectwhich is not curable…The error is so fundamental that it has rendered the whole trial anullity.This is significant indeed. It is established practice that where a matter can bedisposed of without recourse to the Constitution the Constitution should not be involvedat all. The Court will pronounce on the constitutionality of a statute only when it isnecessary for the decision of the case to do so; Wahid Munwar Khan v. State AIR 1956llyd. 22 In that case a passage from Coday’s Treatise on Constitutional Limitations wasalso cited in these terms:In any case where a constitutional question is raised, though it may belegitimately presented by the record, yet if the record presents some other clear groundthe court may rest its judgment on that ground alone., if the other questions areimmaterial having regard to the view taken by the court.The decreme Court of Zimbabwe expressed the same view in Minister of HomeAffairs v. Kickle & Ors (1985) LRC (Const) 755 where Georges, C.J said (at p. 758).Courts will not normally consider a constitutional question unless the existence of aremedy depends upon it; if a remedy is available to an applicant under some otherlegislative provision or on some other basis, whether legal or factual, a court will usually221