Dar es Salaam — A petition has been filed in the High Court seeking a declaration that an article of the constitution prohibiting courts from enquiring into presidential election results be declared unconstitutional.
Mr Denis Maringo and the Centre for Justice and Democracy Limited have sought the declaration that article 41(7) which limits the jurisdiction of courts from inquiring into the election of a candidate, once declared by the National Electoral Commission (NEC), is unreasonable and violating citizens' rights.
They argue that the article infringes upon article 13(6)(a) guaranteeing every citizen access to courts whenever he/she feels it right has been infringed upon. They feel that the article was harmful to the doctrine of separation of powers and independence of the Judiciary.
Respondents in the case filed in on Wednesday are the Attorney General, who is also the government chief legal adviser and the NEC.
In the petition likely to draw much attention from the public, the petitioner also accuses the president of breaching the constitution when he prematurely dissolved the parliament before its mandatory five-year tenure.
President Jakaya Kikwete is standing for re-election.
Mr Maringo argues that the suspension of the house by President Jakaya Kikwete on July 17 this year violated article 65 (1) of the constitution which speculates that the constitutional tenure of the legislative body shall be five years.
He says dissolving the parliament ahead of time has denied Tanzanians continuous access to the government directly and through their elected representatives.
He further argues that the suspension of the Union Parliament breached the constitution by burying the doctrine of parliamentary supremacy and checking of balances within the government.
Mr Maringo argues that the petition was of utmost urgency, and has asked the court to hear and determine it before the General Election is held on October 30.
"The legislators in the Union commenced their five-year constitutional term on December 4, 2005 when they were voted into their respective constituencies. The five-year term for parliamentarians under the constitution would have effectively ceased not earlier than December 5, 2010 or December 30, 2010," he argues.
The petitioner is also challenging the legality of voting rules compelling a voter to vote at a place he registered, specifically citing "exclusion" from voting of University of Dar es Salaam students who had registered to vote at their respective academic institutions.
Over 60,000 students of higher education who had registered in their respective institutions are likely to miss chances to vote in the October General Election. This is because the government postponed the opening of the universities until after the General Election because of, among other things, lack of funds.
Mr Maringo, who is also a lawyer, stocks analyst and journalist, all combined, has also sought a declaration that the 40-year requirement as the minimum age for contesting for the presidency is constitutionally discriminative. He wants the court to direct a sitting of a special Constitutional Assembly to rectify the anomaly before elections are conducted.
The petitioners are also seeking an order to make it imperative for the respondents to translate the electoral laws into Kiswahili before the October elections to enable the majority of voters know their rights and obligations pertaining to the universal suffrage process.
Insisting on the dominance of Kiswahili during elections, the petitioners want the court to invalidate the law requiring electoral candidates to be conversant and fluent in Kiswahili while the majority of laws of Tanzania are published in English.
They also challenge the law requiring prospective candidates to alternatively be literate in English while all parliamentary debates and most of the government business are conducted in Kiswahili.
The petitioner has sought the court's intervention to reconfigure and reconcile what he described as an "apparent contradiction" between articles 66 (1) (b) and 66(1) (e) which cause over-representation of women in the house.
He argues that while the former guarantees 30 special women seats, yet the latter provides for other women seats implicitly, thus causing over-representation of one category of citizens at the expense of other vulnerable groups like the disabled and elders for diluting the voters' powers to choose.
They have sought a declaration and order that article 66 (1) (e) mandating the president to nominate a certain number of women among members nominated by him is both unreasonable and unconstitutional, for the same has been guaranteed in article 66
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