Halima James mdee & 16 others vs Registered body of trustees of Chadema and 2 others, Miscellaneous cause no 36 of 2022.

The applicants were members of a political party known as CHAMA CHA DEMOKRAS A NA MAENDELEO hereinafter referred to by its acronym ‘CHADEMA’, up to the 27th day of November 2020. Because of their expulsion from continuing being members of the said political party,they are now engaged in a serious legal battle aimed at restoring their membership.

The facts giving rise to the present application are these: On 28th October 2020, presidential and general parliamentary elections were held countrywide. CHADEMA happened to be one of the political parties which participated in the said general elections. In terms of the official election results declared by the National Electoral Commission and as per the provisions of Articles 66 (1) (b), 67 (1) (a) and (b) and 78 (1) of the Constitution of the United Republic of Tanzania, CHADEMA was entitled to have nineteen (19) Members of Parliament for Women Special Seats in the National Assembly.

Court had this to say:As correctly submitted by the learned counsel for the 1st respondent

and the learned State Attorneys for the 2nd and 3rd respondents, in the present application, not only that the writ of Prohibition was untimely preferred, but also that, it was brought against wrong parties, the 2nd and 3rd respondents. Therefore, in the circumstances of the present application,

the writ of Prohibition is not grantable.

As I conclude, I make a finding that, this is a fit case for issuance of the writs of Certiorari and Mandamus. This is because, from my holdings and observations hereinabove, the application falls squarely on what Lord

Atkin observed in R VS. ELECTR C TY COMM SS ONERS , EXP LONDON ELECTR C TY JO NT COMM TTEE CO. LTD (1924) 1 KB 171 : 1923 ALL ER 150 (CA). His Lordship observed:

“Whenever anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act

judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs.”

In the present case, the 1st respondent’s Governing Council was a quasi-judicial body having legal authority to determine questions affecting rights of the applicants by way of determining their respective appeal. The

Governing Council had a duty to act judicially. To the extent indicated while determining the fourth issue, the Governing Council acted in excess of its authority.

Again, it cannot be disputed, membership within CHADEMA is a constitutionally guaranteed right, thus a legal right. Article 7.7.12 (f) of the Party’s Constitution imposes an imperative duty, to be performed by

the Governing Council. The duty to hear and make decisions on amongst other things disciplinary appeals from the Party’s Central Committee.

 I have already made a finding that in this case, there was demand of performance by the applicants which was met by a refusal of the 1st respondent’s Governing Council. I can see no ulterior motive on part of the

applicants, but good faith in making the present application. Since the 1st

respondent’s Governing Council was the final appellate body within the 

Party, it follows therefore that the applicants had no alternative remedy but

making the instant application.

For the foregoing reasoning and holdings, the following orders are

hereby issued:

1. The Prerogative Order of Certiorari is granted to quash the decision passed by the Governing Council of the 1st respondent on the 11 of  day of May 2022 and formally published on the 12th May, 2022.

2. The Prerogative Order of Mandamus is granted to compel the 1st respondent to observe the due process and Principles of Natural Justice in determining questions/matters affecting the applicants’

rights.

3. No order is made as to costs. Right of appeal is fully explained.

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