Monday, September 8, 2014
Kubenea’s case set for judgment on mid Sept this year
The High Court of Tanzania on Friday last week said that, it will rule out the judgment of a case in which a renowned journalist Saed Kubenea earlier filed at the court demanding for the legality of the on-going constitutional writing process In the civil case No. 28 of 2014 which was filed on his behalf by a private advocate Peter Kibatala, Kubenea wanted the court to give clarification on whether the Constituent Assembly (CA) can overturn proposals contained in the second draft constitution tabled by the Constitutional Review Commission (CRC). The petitioner seeks declaration on the proper interpretation of the provisions of Section 25 (1) and Section 25 (2) of the Constitutional Review Act No. 83 of 2011, on whether it has powers to materially alter the contents of the second Draft Constitution as presented to it by the CRC). The decision by the High Court was reached after contravention of the law by the government advocates who brought a petition demanding that a section of the law used by the petitioner who demanded the suspension of the CA is not correct. Instead the three government advocates George Masaji, Gabriel Malata abnd Silvia Matiko clarified in court yesterday that, section No. 2(2) of the article 358 used by the petitioner is not right, instead they could have used section No. 2(3) of the article 358. Following the clarifications by the advocates, they asked the court to dismiss the case as the application by the petitioner was not rightful according to the laws governing civil cases. In addition to that, the advocates claimed before the High Court that, such applications have no basic legal grounds because they have elements of provocations and incitements to the general public at this time when the nation is busy writing new constitution.
The third injunction the advocates noted at the Court is that, a certificate of oath used by the petitioner has some irregularities in it for what was written in it are not certified correctly. On his side, Kubenea’s private advocate Peter Kibatala told the High Court that, the sections used by his customer is correct and that the applications have basic legality. He also objected the facts that the claims issued by the government are not true. In view of this the High Court High Court is expected to issue the outcome of the petition While presenting the petition, the petitioner stated that on December 1, 2011, the Parliament of the United Republic of Tanzania passed the Constitutional Review Act, with a view to regulating the process for the enacting of the new constitution. He argues that the CRC was constituted by the President to collect public views on the proposed constitution and on the basis of such views, prepare a draft constitution. He claims that the Commission, after being so duly constituted, proceeded to collect views from the public who aired their views in public meetings, and in a different format, through the “Mabaraza ya Katiba” constituted in every district in Tanzania for such purpose. But Mr Kubenea allege that immediately after such constitution of the Constitutional Assembly, a debate arose within and outside legal circles on whether the Constitutional Assembly had powers to materially depart from the Draft Constitution as presented to it by the Commission.