Mshoka Aliye-mpetition JK, kazi ipo kweli Mwaka Huu!!!


AG responds in anti-JK petition

Tuesday, 17 August 2010



By Bernard James



The Attorney General has asked the High Court to dismiss a petition seeking to disqualify President Jakaya Kikwete from seeking re-election for alleged violation of Tanzanians’ constitutional rights of Tanzanians and abuse of office.



The government’s chief legal adviser says the petition filed by Mr Paul Mhozya last month has no basis, and is meant to disrupt the electoral process.



The AG has already filed a notice of preliminary objection, informing the court that he would ask that the petition, which will be brought for hearing tomorrow, be dismissed. The State also wants the High Court to expedite hearing of the petition, scheduled to start tomorrow before Mr Justice Njengafibili Mwaikugile.



But in his rejoinder to the AG’s reply, Mr Mhozya has asked the court to strike out the objections, saying they are “irrelevant and an attempt to derail the petition”.



Mr Mhozya, 59, a former tutor at the Dar es Salaam Teachers College, is seeking an order to disqualify President Kikwete from the October 31 elections for, among other reasons, being “intolerably extravagant with treasury coffers”, which, he argues, has culminated in the violation of his constitution rights and those of Tanzanians in general.



But in his reply to the petition, the Attorney General dismisses Mr Mhozya’s allegations as unfounded, saying: “The President of the United Republic of Tanzania, Honourable Jakaya Mrisho Kikwete, has prudently and properly been executing duties conferred on him by the Constitution of the United Republic of Tanzania”.



The AG has vehemently disputed the former tutor’s allegations that the President has been misusing public funds for, among other things, unnecessary travels, and has challenged the applicant to provide proof.



“The President is a responsible person who discharges his presidential duties in a fair and transparent manner, and the government has not violated the rights of any citizen of Tanzania,” the Attorney General argues.



The AG adds that this is the second time that Mr Mhozya has filed a controversial petition in the High Court following a 1993 lawsuit which sought to restrain the then President, Mr Ali Hassan Mwinyi, from discharging undertaking presidential pending the hearing and determination of a case filed against him.



Mr Mhozya had sought a declaration that Mr Mwinyi was guilty of violating the Constitution by allowing Zanzibar to join the Organisation of the Islamic Conference (OIC).



But the High Court dismissed the case, stating that the suspension from office of the President was the exclusive privilege of the legislature under section 46 (a) of the Constitution.



The AG wants the High Court to throw out Mr Mhozya’s latest application, arguing: “The petition is frivolous and vexatious contrary to section 8 (2) of chapter 3 of the revised edition of the Basic Rights and Duties Enforcement Act.”



Under section 8 (2), the High Court is forbidden to exercise its powers under the section “if it is satisfied that adequate means of redress for the contravention alleged under or have been available to the person concerned under any other law, or that the application is merely frivolous or vexations”.



According to the AG, allegations contained in Mr Mhozya’s petition were not justifiable and that the petition was incurably defective for failure to comply with Section 6 (a) (b) (c) (d) and (e) of the Basic Rights and Duties Enforcement Act.



The section stipulates that any petition filed under the act must set out the name and address of the petitioner, the name and address of each person against whom redress is sought, the grounds upon which redress is sought, particulars of the facts, but not the evidence to prove such facts, the specific sections in Part III of Chapter One of the constitution which are the basis of the petition and nature of the redress sought.



The AG wants the court to dismiss the petition for being bad in law and incompetent over on citation of the enabling provisions of the law.



But in his rejoinder, Mr Mhozya insists that there is no law that bars the High Court from determining his petition, citing Section 30 (2) (a) of the Constitution. The article does not invalidate any lawful act meant to ensure that the rights and freedoms of other people or of the interests of the public are not prejudiced by the wrongful exercise of the freedoms and rights of individuals.



In his ten-ground petition, Mr Mhozya also claims that President Kikwete “has openly shown a dangerous lacking of a sense of responsibility to the nation and its citizens”.

He says the re-election of President Kikwete will result in the “furtherance of the arbitrary breeches of my constitutional rights and the general public at large”.



Source: The Citizen.



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