The Attorney General (AG) on Friday asked the High Court to dismiss with costs the constitutional petition lodged by two institutions to challenge statements given in Parliament by Prime Minister Mizengo Pinda, allowing law enforcement organs to beat up violent civilians.
Prime Minister Mizengo Pinda
Through his Deputy George Masaju and three Principal State Attorneys, Gabriel Malata, Sara Mwipopo and Alicia Mbuya, the AG told a panel that the petition was bad in law for contravening the Constitution and Parliamentary Immunities, Powers and Privileges Act.
“The specific Article of the Constitution that this particular petition violates is 100 (1) (2) as the basis of this matter originated from an act inside the Parliament,” Mr Masaju told the panel led by Principal Judge Fakih Jundu and judges Augustine Mwarija and Dr Fauz Twaib.
He quoted article 100(1) saying, “There shall be freedom of opinion, debate and procedure of business in the National Assembly and that freedom shall not be breached or questioned by any organ in the United Republic of Tanzania or in any court or elsewhere outside the National Assembly.”
Sub-Article (2) reads, “Subject to this Constitution (…), a Member of Parliament shall not be prosecuted and no civil proceedings may be instituted against him in a court in relation to anything which he has said or done in the National Assembly….”
According to Mr Masaju, this was not the first time the court was adjudicating similar matters as was the case in 1999, when politician Augustine Mrema sued the Speaker of the National Assembly in respect of business conducted in the House.
In that case, he submitted, the High Court held, inter alias, “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 is unmaintainable.”
The Deputy AG further told the court that there were other remedy provided to whoever aggrieved by the conduct of the business in Parliament to exhaust as provided for under Rule 71 and 73 of Parliamentary Standing Orders, instead of seeking court’s intervention.
In a 1995 case between Christopher Mtikila against the Attorney General, the Court held, among others, that “If a remedy is available to an applicant under some other legislative provisions the court will usually decline to determine where there has been a breach of a declaration of right.”
He further submitted that the prayers sought by the petitioners, Legal and Human Rights Centre (LHRC) and the Tanganyika Law Society (TLS) against the Prime Minister and AG, are untenable on account of being contrary to the basic principles of law.
In the matter, the petitioners are seeking for declaration that the Constitution does not protect those who violate it and therefore, Article 100 (2) and Section 5 of the Parliamentary Immunities, Powers and Privileges Act subjects the Parliamentary Immunity to respect and preserve the Constitution.
They further request, “The provisions of Article 100 (1) and 100 (2) of the Constitution or any other law whatsoever should not be used as a shield to condone impunity to violators whomsoever of the Constitution.”
Furthermore, the petitioners are seeking for declaration that the statements, directive and order by the Prime Minister goes contrary to the constitutional principles of human rights, rule of law and accountability and are, thus, null and void.
In addition, the petitioners are asking the court to order that the statements by the Prime Minister should be permanently deleted from the relevant records of the National Assembly and that be ordered to publicly denounce his statements, directives and orders regarding the matter.
Hearing of the matter continues next Monday when the Principal State Attorneys will continue presenting their submissions to support their grounds of objection to the petition. On the same day, counsel for the petitioners will get opportunity to respond to the AG’s submissions.
By FAUSTINE KAPAMA, Tanzania Daily News
