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IN THE HIGH COURT OF TANZANIA AT DAR ES SA1 MISC 0 CIVIL APPLICATION NO.36 OF 1998 HON. AUGUSTINO LYATONGA MREMA. G ,O.. 00 0 APPLICANT Versus 1 ,THE SPEAKER Ot NATIONAL ASSEMBLY 000 RSSPONDENS 2.THE ATTORNEY GENERAL R U L I N G -. SUBJECT: Application for stay, of implementation of resolution to suspend the Applicant, from the on-going Parliamentary Session pending the determination of the Petition0 KATITI, J. Before this Court, is an application by the Hen, M.P. AUGUSTINO LYATONGA MREMA, hence to be called, the applicant, petitioning and suing the Hon. Speaker of the National Assembly, and the Attorney General, as first and second respondents respectively, seeking this Court to issue a stay order, against the full implementation of the Parliamentary resolution, suspending him from further attending, the on-going Parliamentary Budgetary Session. In the prosecution of this application, the said applicant is being represented, by a Dar es Salaam based Advocate Mr. Mnyele, as the learneU State Attorney Mr. Salula, represented the Respondents. The antecedents to this application, Lor illuminating for our purposes, as we go from hence, are undefiablyàs follows. The applicant is as&bove said, an Hon. Member of Parliament, representing Temeke Constituency, and was at the material time, representing his such constitutency in Parliamentary Sessions, gping on at Dodoma. The scanty facts as so designed, show that it came to pass, that as the Parliamentary deliberations were going on, on 24th day of June, 1998, the National Assembly passed a resolution suspending the Applicant, from further attending the on-going on budget session, T.. 1 1 . It has variably been said, that history, or the making of it, can be designed, can be invented, it may be thrown on you, or you may step on it and rapture it as a landmine, but make it all the same. Here, as fate would have it, we have Augustino Lyatonga Mrema, the applicant, untimorously, tulmultously and agitati.ngly, seeking what he considers his rights, and for the first time, challenging the extent of Parliamentary competence, under the leadership of the Hon. Speaker, and hence the Petition filed, and this application pending the determination, of the substantive Petition.

-2- The petition, that has given birth to this application avers, among other things, the transgression of Rules 50(2), 43, 45, of the Parliamentary Proceedings Rules of 1998, and consequently therefore Article 13(b), 21(1), and 26 of the Constitution, that guarantee, equality before the law, freedom of association, participation in Public Affairs, contrary to the duty, to guard and obey the Constitutions The applicant's application, did provoke a Notice of Preliminary objection, to wit:- That under Article 100(1) of the Constitution of the United Republic, the Court has no Jurisdiction to question the Parliamentary Proceedings. That as a single Judge, he cannot determine any matter under the Basic Rights and Duties Enforcement Act, 1994, save for what is provided under section 10 of the said Act. For the prosecution, of their respective areas of contestial arena, the learned Counsels, took their respective positions, as expected, to fight their respective battles. Mr. Salula, in support of his preliminary objection, submitted basically on three areas, namely: -1- that this Court has no Jurisdiction, to entertain a matter that pertains to what has happened within the four Walls of the National Assembly, as to do so, (1) would be contravening Article100(1) of the Constitution of the United Republic, and Section 12 of the Parliamentary Privileges Act No.3 of 1988, citing the case of flFDLAUGH va GOSSETT (1884) 12 QBb 271, -2- That the Court would be messing upith the doctrine of seperation of powers, and -3- that as a single Judge, this Court lacks Jurisdiction to hear the petition, therefore ipso facto, lacked Jurisdiction to entertain this application. On the other hand, learned Counsel Mr. Mnyele, submitted, that they had no quarrel,with the cited Constitutional provisions, but that his contention, was that the said constitutional provisions were inapplicable. He maintained that, whatever the Parliament or any body does, must be within the permitting parameters of, and subject to the Constitution, and that the Parliament in suspending the Applicant, it had infringed the applicant basic rights, and therefore contravened the Constitution, and that - what the Speaker and his House committed, was not an irregularity in procedure, but a transgression of basic right, a matter of substance, and of constitutional transgression, as suspending of a member of the House was not allowed. He submitted, that in such circumstances the Court has Jurisdiction to make such order, or orders, or directions, as my be appropriate for enforcing, or securing the enforcement of basic rights, of participating,and representing his Constituency. r

-3- It is logical and meet, and expected, that I dispose of a preliminary objection, by the learned State Attorney, Mr 0 Salula. As we have to sail herefrom, and have therefore to adjust our rudder, with our destination in mind, we must have our route plan. Therefore in my view, the issuto çuie me, are approximately as follows: -1- whether the Court in inquiring/the suspension of the applicant, as seeks the applicant is a breach of the doctrine of seperation of powers, -2- whether the National Assembly has the power to suspend a Member of Parliament, -3- whether in this case the suspension, contravened Parliamentary Proceedings Rules and the Constitution, and -+- whether this Court has Jurisdiction to inquire into such suspension. Perhaps I would start, with what I would call, an objection, of less weight, paraded, by the learned State Attorney, and by implication countered by Mr. Mnyele, that this Courts entertainment, of this application, in the applicants favour, would amount to grossly transgressing, upon the docrine of seperation of powers, in my view as readable from Article 1+ of the Constitutio2in that the Judiciary would be -: encroaching upon Parliament's exclusive Jurisdictional territory. It would first, be professionally sanctimonious on my part, just to be only loud, that the doctrine of seperation of powers, is based on the proposition that functions of state, should be placed in different organs, so as to act, as restraint on each other, to avoid tyranny,without assistance from other Jurisdictions. To be fair to myself and the subject, I shall proceed by exploring and sounding, how other Jurisdictions, fair,in dealing with this doctrine of seperation of powers, as it defines,in particular the role of the Court, in relation to Parliament, on separation of owzs the question of - ., . ... - in trns area, my application for assistance, goes to the case of, DUPORT STEELS LTD. vs. STPS ZT980 7 IWLR 142 (HL), which is not in my view in-opportune, in the appreciation of this matter. The learned Judge Lord DIPPLOCK, had on the matter this to say: My Lords, at a time when more and more cases involve the application of legislation, which gives effect to policies, that are the subject of bitter public, and Parliamentary controversy, it cannot be too strongly emphasised, that the British Constitution, though largely unwritten, is firmly based upon the seperation of powers; Parliament makes the law; the Judiciary interpretes them. When Parliament legislates, to remedy what the majority of its members at the time percieve to be a defect, or a lacuna in the existing law, (whether it be written law, enacted by existing statute, or the unwritten common law, as it has been expounded by the Judges in decided cases.) The role of the Judiciary, is confined to escertain from the words, that Parliament has approved, as expressing its intention, what that intention was, and to give effect to it. Where the meaning of the statutory words is plain, and

-k- ,for unaxnbiquous, it is not/the Judges to invent funcied ambiguities, as an excuse for failing to give effect, to its plain meaning because they themselves consider, that the consequences of doting so, would be inexpedient, or even unjust or immoral. Not evangelizing anything different, but actually concurring with his learned brother, Lord SCAPMAN,in the same case had this, inter alia, to say, and I quote:- "Within these limits, which cannot be said in a free society possessing elective legislative institutions, to be narrow, or constrained, Judges, as the remarkable Judicial career of Lord Denriing himself shows, have a genuine creative role. Great Judges are in their different ways Judicial activists. But the Constitution's seperation of powers, or more accurately functions must be observed, if Judicial independence, is not to be put at risk. For if people, and Parliament come to think, that the Judicial power, is to be confined by nothing, other than the Judges sense of what is right, (or as Seldon put it, by the length of the Chancellors foot), confidence in the Judicial system, will be replaced by fear of it, becoming uncertain and arbitrary, in its application. Society will then be ready for Parliament, to cut the power of the Judges. Their power to do Justice, will become more restricted by law, than it need be, or is to day.' And may I, respectfully, with your permission, feed on you an equally inclined do3e. JR Lucas, commenting on the above case, (The Times, 17 September, 1980), inter alia observed: 'The Judges should not take it on themselves, to decide the law irdependently of Parliament, but only to interprete Parliaments enactments, as sensibly as they can. It is not the Judges task to say what Parliament should have enacted, but only to say, given that Parliament has enacted a general law, what its decision would have been, in an individual case, if it had been appraised, of all the particular circumstances of the case. 19 The above, it is my submission, is a proponent of pure seperatist view, of the doctrine of seperation of power, - typical of English sense of Constitution, which is unwritten, and therefore without entrenchment of human rights, which would have diluted their Parliamentary omnipotence, a serious hangover, from Dicecy, a committed preacher of Parliamentary Sovereignty, - see the Law of the Constitution 39 -4O, and for which ATPS ALLAN in his book, b Law,4berty and Justice',' laments, that 'the scope of restriction on Parliaments legislative ~ It f and largely untested, our Jurisprudence has been impoveriched by lawy4s uncritical adherence to dogma of Parliamentary omnipotence1'. And from a very unlikely quarter to vindicate ATRS ALLAN, is a temorous statement from no less a distiguished Judge, like Lord Denning who in what he thought he would protect Judicial independence, and public confidence in the Courts, he said:

r I. -5- "One has to see in the greate Constitutions of the United States of America and of India, the conflicts which arise from time to time between the Judges and the Legislature. I hope we shall not have such conflicts in this Country. The independence of our Judges and their reputation for imparliality depend on their obeying the will of Parliament and on their being independent. The independence of the Judges is the other pillar of our Constitution 0 " - 369HL Del 25 March 1976 Cols 797 - 8 opposing a Bill of Rights) All the same, the English Common Law and the Court, have not lacked the armoury of ultrvLre and ammunition in the name of the doctrine/ for de1enng rights and liberties of individuals, by strictly construing against statutes, interfering with such liberty - see the case of HILL vs CHIEF CONSTABLE OF SOuTH YORKSHIRE 1 - 99 IWL. P 96, 952. My confident reaction would seem to be that, the English approach is Parliamentary supre.1snd I shall not seek assistance therefrom., in the whi restructuning of our jurispudence on this area. HOweve/c?èeed, Judges should shy away, from substitution of their views of the public interest, or justice, in the clear expression of Parliament's will 1 . we, should not be appologetic, and timerous, of noting as we should, that, unlike the British Constitution which is unwritten, our Constitution is written, with stress on human rights and which must be given a proper dynamic. In my view, it is in that light, right ha and a duty, that our Judges here? regard to the broad objective, of any statutory obligation, and also more importantly, have regard to the Constitution we are operating under, to uphold the fundamental rights of any party aggrieved, if4ransgressed by any organ of State, even Par1iament.1 stiui cat' tje doctrine of seperation of powers, is more than a number of three branches of Government, it has to presuppose, that, the authority conferred upon the Judge, is to decide disputes and legal principles, also subject to substantiation of transgression of rights, the/4rine of seperation of powers, with a facet of means sodeciding upholding the rule of law, and fundamental rights,/without bias, I can see no hurdle for the Judge, to entertain any aggrieved party, and such aggrieved party, topersue his or Ier rights, however high, the authority involved is, under the cover i: the aoctrine, I think, this is not opportune time, to lecture anybody, on the doctrine of seperation of powers, if it suffices for us, to now know, that the values once strictly associated, with the doctrine of the formal seperation of, legislative, Executive and Judicial powers, in a compartmentalized mariner, is no longer, as it equally suffices, to know that seperation of pwers, may now be represented, by the pluralist arrangement of a modern state, in which the powerful pillars of Central Government, operate in a world of counterveiling powers, exercised by Parliament, Courts, and Executive and even others, and if we know that the whole idea of seperation of powers, one of the facets being the rule of 1aw. should

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-8- through legislative competence of the Parliament, and particularly the Standing Orders, promuglated under Article 89(1) of the Constitution kuwekautaratibu wa kutekeleza shughuli zake - to lay down the procedure for the proper and functioning of the Parliaments blisine ss .0 The Standing Rules, or orders, Order 60, includes suspension of a Member of Parliament, as a punishment, obviously for cause, see Orders 58, 59 etc, And my view, it is this constitutionally permitted procedure, freedoms and privileges, including suspension - as a punishable under Rule 60 in Parliament, that the Constitution says, shall not be questioned by the Court of Law, it should follow that suspension was according to law and the Constitution 0 Whether the Court has jurisdiction to inquire into the said suspension emanates from the complaints, charges that his rights, as a Member violated, by the Speaker of the National Assembly, his Counsel cited, the South African case - High Court of South Africa -1- PATRICIA DE LILLE -2- THE PAN AFRICANIST CONGRESS OF AZANIA vs THE SPEAKER OF THE NATIONAL ASSEMBLY of 8J/l998 to vindicate the applicant's position, while the learned State Attorney said or submitted, that, what took place within the four Walls of Parliament, was exclusively for Parliament, under the control of the Speaker, and that the Court has no jurisdiction to inquire into the same, under the ousting Article 100(1) of the Constit uti on , citing the case of BRADLAUGH vs GOSSETT (1884) 12 XBD, and other authorities. The question for determination, is whether this Court would otherwise have jurisdiction to entertain the suspension act that took place within the four Walls of Parliament in the course of its business. And it this issue of jurisdiction having disposed ef; other aspects above, that brings us here, hà1fways imagined, that the inventer of Constitution, was initially troubled with power, and the distribution thereof, for while the authority of any ruler, should ultimately rest upon law, but it must also have the power, but law does not extend beyond power, and law without power, in, IHEPING's phrase is, 'a lamp that does nct burn," It is hers that we have to decide, where power and the law reside, on matters in Parliament, bearing in mind, that in this Country we have, the supremacy of the Constitution, the distributor of such powers, the heir of the past, and testator of the future, and, the creator of the organs of State. The cited Article of the Constitution, as ousting the Courts Jurisdiction in the matter is, 100(1) of the Constitution, section 3 and 12, of the Parliamentary Immunities, Powers, and Privileges Act, 1988 heneed to be called the Act. The curiousity and anxiety, I suppose, is what do they provide, and, hereunder is what they loudly say:

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11 - The learned judge in condemning the suspension, as unconstitutional, inter alia, observed and I quote:- In my judgment it is important, that our courts should borrow wisely, from other Jurisdictions, comperative research is generally valuable, and is all the more so, when dealing with problems new, to our jurisprudence, but well established in other Jurisdictions. Nevertheless we should be careful and borrow wisely because our Constitution is the South African history, and must be interpreted accordingly.. 0 .. Thus any inconsistent, or incompatible with the Constitution is invalid. Surely the extent of privilege, is inextricably bound with the exercise thereof. In .other words, the determination of the extent of privilege must surely relate to its exercise. The contrary view is untenable, Otherwise Parliament would have a blank cheque to set the limits of its own powers, The constitution, particularly section 2, thereof enjoins us, to ensure that the obligations imposed by the Constitution, which is the supreme law, - must be fulfilled. There are many cases, where the Courts, including ours, have not hesitated to interfere with the exercise of powers • by Parliament, in conflict with Constitutionally guaranteed rights. For example, in the land mark case , of Minister of the Interiour vs Harris, where Parliament 1950s attempted to convet itself into the High Court of Parliament,U the appellate Division had no hesitation, in striking down the relavant legislation, as being unconstitutional, as it • unlawfully interferred with a constitutional guaranteed right, to vote of the Cape Coloureds •.,., In short, the SMITHS case, is certainly authority for the view, that, the Court has power to interfere with the exercise of parliamentary privilege, which conflicts with Constitutionally guaranteed rights. A claim of Parliamentary privilege, does not defeat an action for redress of an infringed right. I have had the advantage, of thoroughly reading the South African case, - or the PATRICIA DE LILLE judgment, brought to my notice by Counsel for applicant, and for that, I do express my appreciation. I agree that even in our country The above case is the Constitution is Supreme Law. is instructive, and deserves alot of respect, but shallowly treated, it would seem to be perfectly on fours, with the case at hand. But with respect, while human rights, are perhaps universal, their protection, or treatment, may differ from jurisdiction to jurisdiction, depending on the presentation of the case, Constitutional history, or development of the country, as the cases from England, India and South Africa demonstrate. In the South African case, firs it is very clear that chicanery, negative political bias, were from the word,o deliberately manufactured, and put on the Parliamentary Assembly plant line, which from the little I know in our case, is absent, second the facts in that case, were exhaustively disclosed to the Court by the applicant, while in this case, as per applicant's affidavit, the facts are not only scanty by design, but only start by the date of suspension,- 24/6/1998, the genesis of it all under black cover, and third it does seem, that the South African Constitution,

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13 - Having however considered, the pros and cons of submissions, Article 100, Section 12 of the Act and of-course Patricia's case, I think both 'rned and illiterate, will concede that, for most of its activities, and by their nature, the National Assembly, is the sole judge of its own privileges, duties in its business. This is, not to say, that Parliament cannot be questioned on anything, regardless of its constitutional limits, afterall as creatlil'O of the Constitution it cannot in my view, claim immunity if the proceedings are held without jurisdiction, e.g. in defiance of the mandatory provision of the Constitution, or byexercising power, which the Parliament does not under the constitution possess. As I did point out above, the novelty of controversy at hand, in this Country, does not mean, the same issue has not happened elsewhere, apart from the South African case, I shall now consider, the case cited by the learned State Attorney, - BRADLOUGH vs G0SST, to seek more experience on the matter, and evaluate how • persuasive it is, even if in relative terms. I have anxiously, if not also studiously examined, the case, and relevantly at p.275, Lord Coleriige, inter alia said: "What is said, or, done within the Walls of Parliament, cannot be inquired into by a Court of Law. On this point all the Judges in the two great cases, which exhaust, the learning of the subject - Burdett vs Abbott (9), and Stockbate 'vs Hansard (2) - are agreed and are emphatic. The jurisdiction of the Houses, over their own members, their right to impose discipline, within th4.r Walls is absolute, and exblusive. To these words of Lord Ellenborough "They would sink into utter contempt, and added inefficiency without it' Whether in all cases, ana under all c.rcumstances, the Houses are the sole judges of their owp privileges, in the sense that, a resolution of either, on the subject, has tht same effect for a Couft of Law as an Act of Parliament, is a question whiOh it is not now necessary to determine. No doubt, to allow any review of Parliamentary privilege, by a Court of Law, may lead, has led, to very grave complications, and might in many supposable case end in the privileges of the Commons being determined by the Lords. But to hold the resolutions of either, House, absolutely beyong inquiry in a Court of Law, may land us in the conclusions, not free from grave complications too a The case above, may have the chaacler of entiquity, but the excerpted principle, that the Parliamentary proceedings and procedure are excluded from review by the Court, seems to maintain a vitality, that has defied the passage of time, and still rings. And DWORKI NS"Political Judges and the Rule of L(l97, 64 Proceedinas the British Accadem 25, similarly inclined says:

= 1 4 'The Courts may, not question what takes place in Parliament, as was declared long ago 9 in Article 9 of the Bill of Ris 1689. That the freedom of speech and debates, or proceedings in Parliament ought not to be impeached, or questioned in any Court or place, out of Parliament. And near and not far from today, in 1993, Lord Rees - Nogg, brought legal proceedings, in the English Court, to challenge the ratification of the MaastrichtTrea, at the same time, there was a Bill before Parliament, to make provisions consequential, on the ratification of the Treaty, there was a complaint, that .jhe proceedings, would involve the questioning of debates, or proceedings, in the House, contrary to Article 9 of the Bill of Rights. Although the House did not react, the Speaker delivered, a warning (HC Deb Vol.229, Col.33 9 21 July, 1993) thus: .... take with great sriousness, any potential questioning of our proceedings. There has of course, been no amendment of article 27 of the Bill of Rights and that, Act places a statutory prohibitiohn on the questioning of our proceedings I am sure, that the House, is entitled to expect when the case LR. vs Secretary of State for Foreign and Commonwealth Affairs, expRees Mogz7 begins, to be heard on Bill c be those appearing before the Court.' My duty, in this regard will not be derogated from, I hope, if I dutifully add another demonstration.. In the case of, R. vsHERJ4AJESTY'STREASTJRY, Exp. SMEDLEYT987QB657(CA), where Counsel for the Treasury argued, that for the Court, to give any remedy to Mr. Smedly, at that stage, would constitute, an unjustifiable interference, with the procedure of Parliament, and, SIR JOHN DOMALDSON MR, observed thus: Before considering Mr. Smeddley's objection to the p roceedings so far take7, and to the obvious intention, to advice Her Majesty to make an. order in Council, in the same terms, if the draft is approved by both Houses of Parliament, I think, that, I would say a word about, the z'espective roles of Parliament, and the Courts. Although the United Kingdom, has no written Constitution, it is a Constitutional Convention of highest in importance, that the legislature, and the Judicature, are separate, and independent of one another, subject to certain. ultimat.e ...... rights of Parliament, over the Judicature, which are immaterial for present purposes. It therefore behoves, the Courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament, or so far as this can be avoided, even appearing to do so. Although, it is not a matter for me, I would hope and expect, that Parliament, would be similarly sensitive,

15 - to the need to refrain, from trespassing upon the province of the Court. Against that background, it would clearly be a broach of Constitutional Conventions, for this Court, or any Court, to express a view, let alone take any action concerning the decision to lay this draft Order Th Council, before Parliament, or Concerning the wisdom, or otherwise of Parliament approving that draft. It is not out of place, in my view to spread our curiousity to other Jurisdictions, to see the Constitutional practice, on a similar matter. This time, I shall take a flight to the Republic of India. In the case of, RASMILRAIN SINGH vs ATANARAM GOVIND Air 1954, ALL 319 page 327, the learned Judge said: 'I have considered it desirable to state the law,, relating to privileges, before grappling with the questions, which this case raises, as I think, that much of the argument in this case, on behalf of the applicant, is based on the assumption, that an erroneous decision by Mr. Speaker,' or the House in respect of a breach of privilege, can be.the subject matter of scruting by a Court of Law. There is nothing startling, in the proposition, that finality'. attaches where under cover of it, no new privi1ee is created by the House, to a decision of the House in respect of the matter, relating to its privileges. 000000000 0000900S OOOUO.O.OtOOO. 'On the question whether it was wise, and statesman like, to pursue the matter after Shri Raj Marain Singh, had been ejected from the House, it would be improper for me to express an opinion. Obviously this Court is not, in any sense whatever a Court of Appeal, or revision, against such legislature, or against the rulings of the Speaker, who as the holder of an office, of the highest distinction, has the sole responsibility cast upon him of maintaining the prestige, and the dignity of the House. Parliamentary Government, receives for its successful working, a spirit of reasonableness, and accommodation, on the part of those, whether belonging to a majority, or minority, who have been elected by the people, to be their chosen representantives, in our legislatures. A perusal of Article 121, would show that, the founding fathers have protected judges from critisism in Parliament, by laying down that there shall, except on motion of misbehaviour, be no discussion in Parliament, on the conduct of any Judge, or Court of Law having Jurisdiction, in any part of India in the exercise of his, or its Judicial functions. The learned Judge went on to observe: The resolution suspending the applicant from the House was a thing done, within the Walls of the of a matter concerning its proceedings, the Legislature is the sole Judge. The matter in issue is a proceeding of the House of Common 9 in the House, and therefore, it is part of the course of its own proceeding& and subject therefore to its exclusive
16 - Perhaps not for, or out of fear of monotony, but for exhaustiveness, I would add another voice, from the Indian Supreme Court, - See Case MSM SHAPMA vs DR SHREE KRISHNA SINHA AND 0TIRS AIR 1960, 1187 vide, which, the then Chief Justice, held: "It was contended, that the procedure adopted, inside the House, of the Legislature, was not regular, and not strictly in accordance with the law0 There are two answers, to this contention, firstly that according to the previous decision of this Court, the petitioner has not the fundameita1 right claimed by him. He is therefore out of Court, Secondly the validity of the proceedings inside the legislature of a State cannot be called into question, on the allegation that, the procedure laid down by the law, had not been strictly followed0 Article 212, of the Constitution, is a complete answer to this part of the contention, raised on behalf of the petitioner0 No Court can go into these questions which are within the special Jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention, raised on behalf of the petitioner, is that it is yet premature to consider the question of procedure, as the committee is yet to conclude its proceedings0 It must also be observed, that once it has been held, that the legislature has the Jurisdiction to control the publication of its proceedings, and to go into the question whether there has been any breach of its privileges, the legislature, is vested with complete Jurisdiction to carry on its proceedings., in accordance with its rules business0 Even though, it may not have strictly complied with, the requirement of procedural law, laid down for conducting its business, that cannot be a ground for interference by this Court, under Art. 32 of the Constitution. Courts have always recognised, the basic difference between want of Jurisdiction, and improper, or irregular exercise of Jurisdiction. Mere non-compliance with rules of procedure, cannot be ground for issuing a writ under Article 32 of the Constitution: vide JANARDAN REDDY vs STATE OFHG DERABAD, 1951 SCR 344 AIR 1951 SC 217. The Indian cases, are in obedience to the Indian Constitutional Article 212(1) and (2) that stipulate:- "121(1): That the validity of any proceedings in the Legislature of State shall not be called into question on the ground of any alleged irregularity procedures0 (2) No officer, or member of the Legislature of State in whom powers are vested, or under this Constitution, for regulating procedure, or the conduct of business or for maintaining order in the Legislature shall be subject to the jurisdiction of any Court in respect of exercisely him of those powers." As per this article, and the authorities above cited, it is clear, that the Indian Courts would not be entitled to question the validity of, "any proceeding" in Parliament on ground of irregularity of procedure0 Thus the above immunity, from Judicial interference, is confined to matters of irregularity of procedure,

4 )

17 - not to matters done without jurisdiction, or done in defiance, of mandatory provisions, of the Constitution, or exercising powers not granted by the Constitution s It would seem to me, that, the above articles are in substantive very contends, not different from what Article 100(1) of our Constitution ordains, and I cannot see how, suspension of the applicant, as a punishment can be described, other than a culmination of procedure within the House 0 It is here that, on recapitulating and dutifully digesting the cases above, and seeking their relevance to the circumstances of our country, that I am more and better persuaded by the Indian cases, In our case Rule 60 of the 1998 Standing Rules made, under the Article 89(1) of the Constitution, allows in principle the suspension of a Member of Parliament, of course for causes, on matters happening in the House, and therefore it cannot be unconstitutional, and it is notwhen it is imposed. Further, although the suspension, did not come upon the applicant, like a hail stones, and the applicant did not rell us, what happened as to make him liable, to deserve the suspension, I shall azsume, that such suspension, is a punishment, resultant from disciplinary action, within the Parliament, under the powers authorised by the Constitution, and exercised by the Assembly, in its own tsirs, in the course of its own proceedings, to maintain the dignity of the House, in its serious business, to maintain its relevance to its business, and the rights, of Parliament as peoples institution, the preservation of whose interests, must be given precedent, otherwise, as L(ord Coleridge said: sink into utter contempt, and inefficiency without it, The applicant is entitled to hide, what led to his suspension, actually complying with Article 100(1) of the Constitution, that proceedings in Parliament shall not be inquired into by a Court of Law, such disciplinary action within the House, falls within the House, and the Court Jurisdiction is ousted, as Article 100(1) of the Constitution loudly says 0 The rules and orders, are for business in Parliament, and the vast powers exercisable within such Parliament, have the protection of the Constitution, for successful business of Parliament, the freedom within which must be circumscribed and corislItent for the success of the Parliament. And I am yet to hear, I contend, of an authority, holding that staying in the Bunge on Sessions, is at any costs, under any circumstances, as a constitutional right, and therefore sending one out, or suspending- him, being labblied unconstitutional. I cannot with respect see the right violated0 One does not have to philosophise, even if there is an 1 t .11 eged, that such rights have inherent limitations, that such rights shall be enjoyed, all things being equal, if other rightFot trodden upon0 It is my view, that that when one becomes a Member of a Society, or group, oFgan of s.tatQ,

IMM he necessarily parts with some rights, or privileges, which as an individual, are not affected by his relations to others, he might retain, he has to conduct himself, so as not unnecessarily to injure, or interfere, with the rights of others. If follows, that whatever rights, privileges, the applicant had, or has in the House, they should definately be consistent, with the obtaining order therein. So that, even if there were no rule for suspension, there is implied power for suspension, however short, if lack of peace in the House, is for some reason occasioned by an HP, in the House, and if so suspended, the said MP cannot be heard to complain of denial of partipation, if he was the author of the circumstances, for suspension. I contend, that there is no such thing, as enjoying rights in the abstract, - for instance, an HP cannot play Disco in House, and be allowed to shelter under Constitutional right, he will be sent out, you cannot murder and claim right tolife, you will suffer death by hanging, you cannot claim right to work, if there is no wor'k you, will die of hunger, or right to food you will perish, if there is no food, simply because, there are itimized in the Constitution. As Waiter Lippiman emphasized:- °To maintain a Constitutional Order, men must be more truthful, reasonable, just and honourahle than the letter of the Laws. And even be more serious, we should claim our liberties with the caution, as given by, de Tocqueville: tThat nothing is more futile in prodigies, than the art of being free, but there is nothing more arduous than the apprent ice ship of liberty. All the same, fifty years of human rights declaration, as standard achievement of all peQple, and of all nations, and they being designed to limit power, to counterbalance a utilirarian use of power, with an ethical requirement setting a limit to power, so that any action, even with a semblance of challenge to power, abuse, like that the applicant did, is a welcome course of inspiration, on the extent of such rights And wisely, I think with respect, and more and better persuaded by the Indian authorities, and distinguishing the South African case which is a product of a Constitution and circumstances not close to our own, I am confidently convinced therefore, that the suspension was resultant from disciplinary action by the Assembly, for matters committed with the Assembly which has exclusive Jurisdiction to deal the sane, within the four Walls of the same, to maintain the dignity, and integrity of the Assembly, and the members themselves, the said suspension was part of the proceedings in the Assembly, it was part

19 - (0 * of the course of its own proceedings0 I therefore hold that the suspension was within the Constitutional Powers of Parliament, as exercisable for purposes of its business. In obedience to Article 100(1) of the Constitution, I shall hereby declare, that this Court has no Jurisdiction to hear the petition, and therefore the application unrnaintainable, and I shall not by illegal force break into that Parliamentary Castle. The second objection is therefore pre-.emptied, and its treatment is therefore rendered superfious. But even it were otherwise, I would be reluctant to issue the stay, sought for the conditions thereof, not being weightly satisfied -1- a Private Members motion, has no time circumscription, the present Parliamentary life, is five years, and 0 Tanzania is not dying tomorrow, nor are Tanzanians planning an exodus from this Country. And as for the Temeke Constituency voters, and other voters generally, truancy from the House even to the extent of denying the Hon. Speaker the working quorum, is so common, and whether as a result of truancy, or Speakers suspending order, the effect is non-representation, and a violation of voters rights all the same, for which the electorate will be the jüdgs, either when they know the effect of truancy, or cause for suspension. The application fails therefore, with costs. Delivered this 27th day of July, 1998. E.W. KATITI JUDGE Parties: Mr. Mnyele for Applicant Mr. Salula for the Respondents. E.W. KATITI JUDGE

Judgment

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11 - The learned judge in condemning the suspension, as unconstitutional, inter alia, observed and I quote:- In my judgment it is important, that our courts should borrow wisely, from other Jurisdictions, comperative research is generally valuable, and is all the more so, when dealing with problems new, to our jurisprudence, but well established in other Jurisdictions. Nevertheless we should be careful and borrow wisely because our Constitution is the South African history, and must be interpreted accordingly.. 0 .. Thus any inconsistent, or incompatible with the Constitution is invalid. Surely the extent of privilege, is inextricably bound with the exercise thereof. In .other words, the determination of the extent of privilege must surely relate to its exercise. The contrary view is untenable, Otherwise Parliament would have a blank cheque to set the limits of its own powers, The constitution, particularly section 2, thereof enjoins us, to ensure that the obligations imposed by the Constitution, which is the supreme law, - must be fulfilled. There are many cases, where the Courts, including ours, have not hesitated to interfere with the exercise of powers • by Parliament, in conflict with Constitutionally guaranteed rights. For example, in the land mark case , of Minister of the Interiour vs Harris, where Parliament 1950s attempted to convet itself into the High Court of Parliament,U the appellate Division had no hesitation, in striking down the relavant legislation, as being unconstitutional, as it • unlawfully interferred with a constitutional guaranteed right, to vote of the Cape Coloureds •.,., In short, the SMITHS case, is certainly authority for the view, that, the Court has power to interfere with the exercise of parliamentary privilege, which conflicts with Constitutionally guaranteed rights. A claim of Parliamentary privilege, does not defeat an action for redress of an infringed right. I have had the advantage, of thoroughly reading the South African case, - or the PATRICIA DE LILLE judgment, brought to my notice by Counsel for applicant, and for that, I do express my appreciation. I agree that even in our country The above case is the Constitution is Supreme Law. is instructive, and deserves alot of respect, but shallowly treated, it would seem to be perfectly on fours, with the case at hand. But with respect, while human rights, are perhaps universal, their protection, or treatment, may differ from jurisdiction to jurisdiction, depending on the presentation of the case, Constitutional history, or development of the country, as the cases from England, India and South Africa demonstrate. In the South African case, firs it is very clear that chicanery, negative political bias, were from the word,o deliberately manufactured, and put on the Parliamentary Assembly plant line, which from the little I know in our case, is absent, second the facts in that case, were exhaustively disclosed to the Court by the applicant, while in this case, as per applicant's affidavit, the facts are not only scanty by design, but only start by the date of suspension,- 24/6/1998, the genesis of it all under black cover, and third it does seem, that the South African Constitution,

13 - Having however considered, the pros and cons of submissions, Article 100, Section 12 of the Act and of-course Patricia's case, I think both 'rned and illiterate, will concede that, for most of its activities, and by their nature, the National Assembly, is the sole judge of its own privileges, duties in its business. This is, not to say, that Parliament cannot be questioned on anything, regardless of its constitutional limits, afterall as creatlil'O of the Constitution it cannot in my view, claim immunity if the proceedings are held without jurisdiction, e.g. in defiance of the mandatory provision of the Constitution, or byexercising power, which the Parliament does not under the constitution possess. As I did point out above, the novelty of controversy at hand, in this Country, does not mean, the same issue has not happened elsewhere, apart from the South African case, I shall now consider, the case cited by the learned State Attorney, - BRADLOUGH vs G0SST, to seek more experience on the matter, and evaluate how • persuasive it is, even if in relative terms. I have anxiously, if not also studiously examined, the case, and relevantly at p.275, Lord Coleriige, inter alia said: "What is said, or, done within the Walls of Parliament, cannot be inquired into by a Court of Law. On this point all the Judges in the two great cases, which exhaust, the learning of the subject - Burdett vs Abbott (9), and Stockbate 'vs Hansard (2) - are agreed and are emphatic. The jurisdiction of the Houses, over their own members, their right to impose discipline, within th4.r Walls is absolute, and exblusive. To these words of Lord Ellenborough "They would sink into utter contempt, and added inefficiency without it' Whether in all cases, ana under all c.rcumstances, the Houses are the sole judges of their owp privileges, in the sense that, a resolution of either, on the subject, has tht same effect for a Couft of Law as an Act of Parliament, is a question whiOh it is not now necessary to determine. No doubt, to allow any review of Parliamentary privilege, by a Court of Law, may lead, has led, to very grave complications, and might in many supposable case end in the privileges of the Commons being determined by the Lords. But to hold the resolutions of either, House, absolutely beyong inquiry in a Court of Law, may land us in the conclusions, not free from grave complications too a The case above, may have the chaacler of entiquity, but the excerpted principle, that the Parliamentary proceedings and procedure are excluded from review by the Court, seems to maintain a vitality, that has defied the passage of time, and still rings. And DWORKI NS"Political Judges and the Rule of L(l97, 64 Proceedinas the British Accadem 25, similarly inclined says:

15 - to the need to refrain, from trespassing upon the province of the Court. Against that background, it would clearly be a broach of Constitutional Conventions, for this Court, or any Court, to express a view, let alone take any action concerning the decision to lay this draft Order Th Council, before Parliament, or Concerning the wisdom, or otherwise of Parliament approving that draft. It is not out of place, in my view to spread our curiousity to other Jurisdictions, to see the Constitutional practice, on a similar matter. This time, I shall take a flight to the Republic of India. In the case of, RASMILRAIN SINGH vs ATANARAM GOVIND Air 1954, ALL 319 page 327, the learned Judge said: 'I have considered it desirable to state the law,, relating to privileges, before grappling with the questions, which this case raises, as I think, that much of the argument in this case, on behalf of the applicant, is based on the assumption, that an erroneous decision by Mr. Speaker,' or the House in respect of a breach of privilege, can be.the subject matter of scruting by a Court of Law. There is nothing startling, in the proposition, that finality'. attaches where under cover of it, no new privi1ee is created by the House, to a decision of the House in respect of the matter, relating to its privileges. 000000000 0000900S OOOUO.O.OtOOO. 'On the question whether it was wise, and statesman like, to pursue the matter after Shri Raj Marain Singh, had been ejected from the House, it would be improper for me to express an opinion. Obviously this Court is not, in any sense whatever a Court of Appeal, or revision, against such legislature, or against the rulings of the Speaker, who as the holder of an office, of the highest distinction, has the sole responsibility cast upon him of maintaining the prestige, and the dignity of the House. Parliamentary Government, receives for its successful working, a spirit of reasonableness, and accommodation, on the part of those, whether belonging to a majority, or minority, who have been elected by the people, to be their chosen representantives, in our legislatures. A perusal of Article 121, would show that, the founding fathers have protected judges from critisism in Parliament, by laying down that there shall, except on motion of misbehaviour, be no discussion in Parliament, on the conduct of any Judge, or Court of Law having Jurisdiction, in any part of India in the exercise of his, or its Judicial functions. The learned Judge went on to observe: The resolution suspending the applicant from the House was a thing done, within the Walls of the of a matter concerning its proceedings, the Legislature is the sole Judge. The matter in issue is a proceeding of the House of Common 9 in the House, and therefore, it is part of the course of its own proceeding& and subject therefore to its exclusive
16 - Perhaps not for, or out of fear of monotony, but for exhaustiveness, I would add another voice, from the Indian Supreme Court, - See Case MSM SHAPMA vs DR SHREE KRISHNA SINHA AND 0TIRS AIR 1960, 1187 vide, which, the then Chief Justice, held: "It was contended, that the procedure adopted, inside the House, of the Legislature, was not regular, and not strictly in accordance with the law0 There are two answers, to this contention, firstly that according to the previous decision of this Court, the petitioner has not the fundameita1 right claimed by him. He is therefore out of Court, Secondly the validity of the proceedings inside the legislature of a State cannot be called into question, on the allegation that, the procedure laid down by the law, had not been strictly followed0 Article 212, of the Constitution, is a complete answer to this part of the contention, raised on behalf of the petitioner0 No Court can go into these questions which are within the special Jurisdiction of the Legislature itself, which has the power to conduct its own business. Possibly, a third answer to this part of the contention, raised on behalf of the petitioner, is that it is yet premature to consider the question of procedure, as the committee is yet to conclude its proceedings0 It must also be observed, that once it has been held, that the legislature has the Jurisdiction to control the publication of its proceedings, and to go into the question whether there has been any breach of its privileges, the legislature, is vested with complete Jurisdiction to carry on its proceedings., in accordance with its rules business0 Even though, it may not have strictly complied with, the requirement of procedural law, laid down for conducting its business, that cannot be a ground for interference by this Court, under Art. 32 of the Constitution. Courts have always recognised, the basic difference between want of Jurisdiction, and improper, or irregular exercise of Jurisdiction. Mere non-compliance with rules of procedure, cannot be ground for issuing a writ under Article 32 of the Constitution: vide JANARDAN REDDY vs STATE OFHG DERABAD, 1951 SCR 344 AIR 1951 SC 217. The Indian cases, are in obedience to the Indian Constitutional Article 212(1) and (2) that stipulate:- "121(1): That the validity of any proceedings in the Legislature of State shall not be called into question on the ground of any alleged irregularity procedures0 (2) No officer, or member of the Legislature of State in whom powers are vested, or under this Constitution, for regulating procedure, or the conduct of business or for maintaining order in the Legislature shall be subject to the jurisdiction of any Court in respect of exercisely him of those powers." As per this article, and the authorities above cited, it is clear, that the Indian Courts would not be entitled to question the validity of, "any proceeding" in Parliament on ground of irregularity of procedure0 Thus the above immunity, from Judicial interference, is confined to matters of irregularity of procedure,

4 )

17 - not to matters done without jurisdiction, or done in defiance, of mandatory provisions, of the Constitution, or exercising powers not granted by the Constitution s It would seem to me, that, the above articles are in substantive very contends, not different from what Article 100(1) of our Constitution ordains, and I cannot see how, suspension of the applicant, as a punishment can be described, other than a culmination of procedure within the House 0 It is here that, on recapitulating and dutifully digesting the cases above, and seeking their relevance to the circumstances of our country, that I am more and better persuaded by the Indian cases, In our case Rule 60 of the 1998 Standing Rules made, under the Article 89(1) of the Constitution, allows in principle the suspension of a Member of Parliament, of course for causes, on matters happening in the House, and therefore it cannot be unconstitutional, and it is notwhen it is imposed. Further, although the suspension, did not come upon the applicant, like a hail stones, and the applicant did not rell us, what happened as to make him liable, to deserve the suspension, I shall azsume, that such suspension, is a punishment, resultant from disciplinary action, within the Parliament, under the powers authorised by the Constitution, and exercised by the Assembly, in its own tsirs, in the course of its own proceedings, to maintain the dignity of the House, in its serious business, to maintain its relevance to its business, and the rights, of Parliament as peoples institution, the preservation of whose interests, must be given precedent, otherwise, as L(ord Coleridge said: sink into utter contempt, and inefficiency without it, The applicant is entitled to hide, what led to his suspension, actually complying with Article 100(1) of the Constitution, that proceedings in Parliament shall not be inquired into by a Court of Law, such disciplinary action within the House, falls within the House, and the Court Jurisdiction is ousted, as Article 100(1) of the Constitution loudly says 0 The rules and orders, are for business in Parliament, and the vast powers exercisable within such Parliament, have the protection of the Constitution, for successful business of Parliament, the freedom within which must be circumscribed and corislItent for the success of the Parliament. And I am yet to hear, I contend, of an authority, holding that staying in the Bunge on Sessions, is at any costs, under any circumstances, as a constitutional right, and therefore sending one out, or suspending- him, being labblied unconstitutional. I cannot with respect see the right violated0 One does not have to philosophise, even if there is an 1 t .11 eged, that such rights have inherent limitations, that such rights shall be enjoyed, all things being equal, if other rightFot trodden upon0 It is my view, that that when one becomes a Member of a Society, or group, oFgan of s.tatQ,

19 - (0 * of the course of its own proceedings0 I therefore hold that the suspension was within the Constitutional Powers of Parliament, as exercisable for purposes of its business. In obedience to Article 100(1) of the Constitution, I shall hereby declare, that this Court has no Jurisdiction to hear the petition, and therefore the application unrnaintainable, and I shall not by illegal force break into that Parliamentary Castle. The second objection is therefore pre-.emptied, and its treatment is therefore rendered superfious. But even it were otherwise, I would be reluctant to issue the stay, sought for the conditions thereof, not being weightly satisfied -1- a Private Members motion, has no time circumscription, the present Parliamentary life, is five years, and 0 Tanzania is not dying tomorrow, nor are Tanzanians planning an exodus from this Country. And as for the Temeke Constituency voters, and other voters generally, truancy from the House even to the extent of denying the Hon. Speaker the working quorum, is so common, and whether as a result of truancy, or Speakers suspending order, the effect is non-representation, and a violation of voters rights all the same, for which the electorate will be the jüdgs, either when they know the effect of truancy, or cause for suspension. The application fails therefore, with costs. Delivered this 27th day of July, 1998. E.W. KATITI JUDGE Parties: Mr. Mnyele for Applicant Mr. Salula for the Respondents. E.W. KATITI JUDGE

Hon. Augustino Lyatonga Mrema vs Speaker of National Assembly and Another (Civil Application No. 36 of 1998) [1998] TZHC 2033 (27 July 1998)

Judgment

Discussion

Hon. Augustino Lyatonga Mrema vs Speaker of National Assembly and Another (Civil Application No. 36 of 1998) [1998] TZHC 2033 (27 July 1998)

Judgment

Discussion