Cotwu (T)-Ottu Union and Another. v. Hon.

Iddi Simba, Minister of Industries and Trade

and 7 Others High Court (Katiti, J.): May 25, 2000 Miscellaneous Civil Cause No. 100 of
1999

Facts and Issues

The Cotwu (T)-Ottu Union and the other applicants applied for leave for the issue of the writ of
mandamus against the respondents. Pending the hearing of the application, they made another
application for a temporary injunction. The respondents filed a counter affidavit which was
challenged, and hence this ruling.

The applicants alleged that without consultations with the Parastatal Sector Reform Commission,
NASACO or its subsidiaries, workers or their Trade Union, Hon. Iddi Simba, the Minister of
Trade and Industries, and first respondent, authorized the issuing of trading business licenses to
private shipping companies, and that by October, 1999, twenty nine companies, former
NASACO customers, had taken out trading business licenses, contrary to Government Directive
No. 5 of 1997 and s.13 of the Business Licenses Act No. 25 of 1972. The temporary injunction
application was to restrain the first respondent from renewing trading business licensed already
issued.

The applicants also claimed that the Cabinet issued Government Directive No. 5 of 1997. In their
counter affidavit, the respondents claimed that the Government stood to lose, more than the
applicants, in that the companies/investors, who, on the basis of the already issued licenses had
invested in the Shipping Industry, would be negatively affected and hence impact investment
climate. The source of this information was not disclosed in the affidavit.

Counsel for the applicants argued for the applicants that the affidavit should be struck out as
incompetent for failure to disclose its source of information.

Counsel for the respondents submitted that a temporary injunction could not issue against the
Government, citing G.N. No. 376 of 1968, made under s.20 of the Government Proceedings Act
1967.

Held:

1. On the application for a temporary injunction, no one is immune from interference by Courts
of Law. In public law, an injunction may obtain as an interlocutory injunction, against a
Minister, to secure interim protection of rights. Court therefore has inherent jurisdiction to grant
a temporary injunction, even against the government.

2. While a Government, like an individual, must subscribe to equality before the law, its
institutional and constitutional position attract limitations, by reason of which a court may not
issue interim injunctive orders. The question is whether or not the injunction sought, is likely to
hamper the smooth working of the Government, and cause confusion, and if it would, then the
injunction should not be issued.

3. When a public authority has been invested by statute with discretion, an injunction should not
be granted to restrain such body from exercising discretion, unless in doing so, it has committed
intentional mistakes, acted without jurisdiction, or there is manifest mala fide.

4. Section 13(6) of the Business Licensing Act is an enabling provision, for the President in
public interest, by order in the Gazette, to limit, the grant of any class of business licenses in any
area, to any parastatal organization. There was no evidence that the President had taken such a
course of action. NASACO had therefore no cause in law to demand that monopoly and the
Minister, the first respondent, had no legal inhibition to give trading licenses to other companies.

5. An injunction in this case would cause injury, economic loss, to not only Tanzania, but to
nations neighbouring nations as well. It would affect even those who are not parties to the
litigation, who would be prejudicially affected without being heard. The balance of convenience
therefore does not favour the applicants.

Application dismissed with costs.

Director of Public Prosecutions v. Daudi Pete Court of Appeal (Nyalali C.J., Makame and
Ramadhani JJ.A.): Criminal Appeal No. 28 of 1990 May 16, 1991

Facts and Issues

This appeal by the Director of public Prosecutions concerned the right of bail. The respondent
was charged with the offence of robbery with violence c/s 285 and 286 of the Penal Code. The
District court of Musoma denied him bail, as the offence was not bailable under s.148 (5)(e) of
the Criminal Procedure Act 1985. The respondent appealed to the High Court. The High Court
(Mwalusanya J.) held that s.148 (4) and (5) of the Act was unconstitutional for violating several
articles of the Constitution concerning Basic Rights, and the doctrine of separation of powers
between the Judicature and Legislature, and therefore granted bail. The DPP was aggrieved by
the decision, hence this appeal.

Held:

1. Articles 30(3) and (4) of the Constitution sufficiently confer original jurisdiction upon the
High Court to entertain proceedings in respect of actual or threatened violations of the Basic
Rights, Freedoms and Duties. Until Parliament legislates under Article 30(4), enforcement of
Basic Rights, Freedoms and Duties may be effected under the procedure and practice that is
available to the High Court in exercise of its original jurisdiction, depending on the nature of the
remedy sought.

2. The High Court has unlimited inherent jurisdiction to adjudicate upon any legal matter unless
there is express statutory provision to the contrary. However, as there is a specific provision
under the Constitution in Article 30(3) and (4) concerning the enforcement of the Basic Rights
and Duties, any proceedings for that purpose must be instituted under that specific article of the
Constitution.

3. One of the two situations under which Court may deny or deprive a person of personal liberty
under the Constitution is Article 15(a). This may be done only under certain circumstances under
a procedure law must prescribe. There was no prescription in s. 148 or elsewhere for the requisite
procedure for denial of bail in terms of Article 15(2)(a) of the Constitution.

4. The selective prohibition against bail contained under s. 148(5)(e) of the Criminal Procedure
Act is not discriminatory in terms of the Constitution Articles 13(4) and (5) as the accused are
denied bail on the basis of their actions or conduct.

5. The doctrine of separation of powers is fringed when either the Executive or the Legislature
takes over the function of the Judicature involving the interpretation of laws and adjudication of
rights and duties in disputes either between individual persons or between the state and
individual persons. Legislation prohibiting the grant of bail to persons charged with specified
offences does not amount to a takeover of judicial functions by the Legislature.

6. Any legislation that falls within the parameters of article 30 is constitutionally valid,
notwithstanding that it may violate basic rights of the individual. But the legislation must fit
squarely within the provisions of that Article in that it could be construed as being wholly for
"ensuring the interests of defence, public safety, public order'", etc. Thus the provisions of s.148
(5)(e) would be saved if the denial of bail was aimed at the interest of defence, public safety or
public order.

7. The provisions of Section 148(5)(e) was so broad that it encompassed even accused persons
who could not reasonably be construed to be dangerous in terms of Article 30(2)(b) of the
Constitution.

To the extent that s. 148(5)(e) violates the Constitution, it is declared null and void in terms of
article 64(5) of the Constitution. It is struck off the statute book. Appeal dismissed.

Hamisi Masisi and Others v. Republic High Court, Miscellaneous Criminal Cause No. 54 of
1978
Facts and Issues

The applicants applied for variation of terms of bail imposed by the District Court of Musoma
that had already been varied. Their application was dismissed in that regard. The High Court
however proceeded to revise the order of the learned Resident Magistrate at his request. His
request was to review the appropriateness and legality of the order regarding cancellation of bail,
and to discuss the constitutional problem as to whether it is appropriate for the executive
(particularly a Regional Commissioner) to order detention of an accused person for an offence he
same accused is charged with in court, and in disregard of the Court's order that the same
accused is entitled to bail. When the applicants appeared before the lower court on December 12,
1978, the learned Resident Magistrate released them on bail on various terms. Then two days
later, the Senior State Attorney moved the Court to cancel the orders of bail it had made in
respect of all the applicants. The Senior State Attorney informed the Court that he was acting on
the instructions of the Director of Public Prosecutions. Apart from this, the Senior State Attorney
had very little to add to what the prosecutor had told the Court two days earlier. At this stage,
Counsel for the applicants informed the Court about the high handed behaviour of the Regional
Commissioner for Mara Region in ordering the arrest and detention of all the applicants on the
same grounds and charges, as soon as they were out of court and had fulfilled their conditions for
bail. The learned Resident Magistrate realized that there was a "conflict of powers" and cancelled
the bail because the Regional Commissioner would simply re-arrest the applicants rendering his
order for bail impotent.

Held:

1. By its very nature, an order for bail should be a subject of variation or cancellation by the
Court that made it under s. 127, of the Criminal Procedure Code, where grounds for cancellation
are made out. In this instance, no case was made out for the Court to vary or rescind its earlier
order.

2. Court should not make decisions on expediency but only in accordance with the law and in
defence of the people, the Constitution and the practices of the Republic as by law established
despite any irrelevant pressures.

3. A Regional Commissioner has no powers of arrest under s. 7(2) of the Regional and Area
Commissioners Acts (Amendment) Act. For these reasons, the Resident Magistrate had no
reasons in law and in fact to vary and cancel his order for bail he made on December 14, 1978.

Order of December 16, 1978 set aside. All applicants admitted to bail upon their execution of
bonds in sum of shs. 100,000/= each with two sureties in like sum.

Julius Ishengoma Francis Ndyanabo v. Attorney General Court of Appeal, Civil Appeal
No. 64 of 20
Facts and Issues

This was an appeal from the decision of the High Court (Kyando, and Ihema JJ, Kimaro J.
dissenting), dismissing a petition filed by the appellant for a declaration that S. 111(2), (3) and
(4) of the Elections Act 1985 was unconstitutional for violating Article 13(1), (2), and 6(a) of the
Constitution. In a general election held in October 2000, the appellant, an advocate by
profession, contested the Parliamentary seat in Nkenge Constituency. He lost the election
according to the election results. He was aggrieved by the results and in accordance with s
111(1) of the Elections Act; he filed a petition before the High Court, challenging the validity of
the declared victory of one of his opponents in the election. The hearing date was not fixed
because the appellant had not paid the requisite security for costs of shs. Five million in respect
of the proposed election, in accordance with s. 111(2) of the Electoral Laws (Amendment) Act,
2001. The appellant decided instead, to file, under Article 30(3) of the Constitution and S.4 of
the Basic Rights and Enforcement Act, 1994, a petition challenging the constitutionality of the
subsection and praying for a declaration that the said statutory provision was unconstitutional on
the ground that it was arbitrary, discriminatory, and unreasonable. The majority decision of the
High Court accepted this reasoning and decided that the petition lacked merit and held that s.
111(2) of the Elections Act, 1985 as amended was in tandem with Article 30(1) and 2(a) and (f)
of the Constitution, imposing limitations upon the enforcement and preservation of basic rights,
freedoms and duties hence this appeal.

On appeal, the appellant argued firstly that the requirement of payment of security for costs
constituted an unjustified restriction on the right of a citizen to be heard, by Court, on his
complaint against illegalities or irregularities in the conduct of a parliamentary election. The
Government argued through the Attorney General that the requirement was consistent with the
avoidance of unnecessary and unreasonable costs to the Government as well as individuals
involved which could be caused by unreasonable and vexatious petitioners who might bring
petitions without any reasonable cause. The appellant argued secondly that the provisions of s.
111(2) and (3) of the Elections Act were discriminatory as they placed a private election
petitioner and the Attorney General on unequal footing on the matter of depositing a sum of
money as security for costs. The Attorney General submitted that s. 111(2) of the Elections Act
did not abolish the discretionary powers of the High Court under Rule 11 of the Elections
(Election Petitions) Rules to direct that a petitioner provide some other form of security or waive
the requirement to deposit shs. Five million for costs, and did not limit the right of access to
justice in election petitions.

The petitioner argued also that s. 111(3) of the Elections Act discriminated against a private
petitioner as the Attorney General was exempted from the requirement to make a deposit for
security for costs. The petitioner further submitted that the requirement was arbitrary in that it
did not leave any discretion to the Court, and also the amount was fixed arbitrarily.

Held:
1. The Constitution is a living document with a soul and consciousness as reflected in the
Preamble and Fundamental Objectives and Directive Principles of State Policy. It should not be
crippled by technical or narrow interpretation.

2. Provisions touching on fundamental rights have to be interpreted in a broad, liberal and strict
manner to jealously guard those rights.

3. Legislation is presumed to be constitutional until the contrary is proved, and the onus is on
upon the person challenging the constitutionality. It should receive a construction that will make
it operative and not inoperative.

4. The onus is on the person supporting a restriction on a fundamental right in reliance on a claw
back or exclusion clause, to justify the restriction.

5. The word "discriminate" in Article 13(5) of the Constitution was not intended to relate to
natural persons only but also embraces juristic persons and collective bodies.

6. The right of access to justice, one of the most important rights in a democratic society, can be
limited only by a legislation that is clear and does not violate the provisions of the Constitution.

7. Rules must be read together with their relevant Act. They cannot repeal or contradict express
provisions in the Act from which they derive authority. Also where an Act passed subsequently
to the making of the rules is inconsistent with them, the Act must prevail unless it was plainly
passed with a different object. Section 111(2) of the Elections Act by necessary implication
repealed Rule 11(3) Rule 11(3) of the Election Rules as amended by the Election (Election
Petitions) (Amendment) Rules 1981.

8. The Elections Act effectively denied access to justice to indigent petitioners and made it a rule
without exception that each petitioner, regardless of his financial standing, would deposit the
sum of five million shillings as security for costs before his petition could be fixed for hearing.
The sub-section and the sub-rule were therefore inconsistent with each other and could not co-
exist.

9. Access to justice does not constitute mere filing of pleadings and paying the required court-
fees. The right to have recourse or access to courts means more than that. It includes the right to
present one's case or defence before the courts. Fundamental rights may be limited, but the
limitations must not be arbitrary, unreasonable and disproportionate to any claim of State
interest.

10. Fundamental rights and costs of litigation should not be weighed in the scales against each
other. The fact that a forum for justice is misused does not justify the closing of the doors of
justice.

11. The repeal of Rules 11(3) and (4) of the Election (Election Petitions) Rules effectively
classified those who are aggrieved by the results of a parliamentary election and have a right to
file a petition before the High Court into two distinct groups. There were those who, because
they could afford to pay a deposit of five million shillings, would be able to have their petitions
heard and those, who as a result of their poverty will have the doors of justice firmly, shut
against them.

12. Any classification or differentiation must have a rational nexus to the object the legislation
seeks. Article 13 of the Constitution forbade class legislation and not reasonable classification.
Section 111(1) of the Elections Act was class legislation, arbitrary and more than was reasonably
necessary to achieve the objective of preventing abuse of the judicial process.

13. (Obiter) By repealing Rule 11(3) of the Election (Election Petitions) Rules, s. 111 of the
Elections Act purported to deprive a petitioner of his right, under the sub-rule, to apply for an
exemption. Regarding legislative discrimination, the decisive factor was not the phraseology of
the statute but the effect of the legislation. As s. 111(2) of the Elections Act was unconstitutional,
it followed that Rule 11(3) was still in force. Section 111 (3) of the Act did not therefore
discriminate against a petitioner.

Appeal allowed with costs. Section 111(2) of the Elections Act, 1985 declared unconstitutional
ab initio. Rule 11(3) of the Elections (Elections Petitions) Rules, 1971 as amended still in force.
Petitioner to pay shs 500/=as security for costs.

Kukutia Ole Pumbun and Another v. Attorney General and Another Court of Appeal: July
23, 1993 Civil Appeal No. 32 of 1992

Facts and Issues

The appellants sought to sue the Government in the High Court to recover damages for trespass,
assault, and conversion. The necessary fiat or consent to sue the Government was withheld. The
High Court was called upon to rule on the constitutionality of s.6 of the Government Proceedings
Act, 1967 as amended by Act 40 of 1974. The respondent filed a preliminary objection that the
suit was incompetent for want of the Attorney General's consent to sue the Government. The
High Court (Munuo J.) dismissed the suit as being incompetent holding that s.6 of the
Government Proceedings Act was not unconstitutional. The appellant appealed. Counsel for the
appellant submitted that s.6 of the Government Proceedings Act was null and void and should be
struck down as it violated the guaranteed right of unimpeded access to Courts contrary to articles
13(3), and (6), and 30(3) of the Constitution. He further submitted that the combined effect of
that was that the section offended against the separation of powers by enabling the Government
to exercise a judicial function of deciding upon its civil liability or the extent of that liability and
hence decide whether it should be sued or not. This enabled the Government to be a judge in its
own cause. It also offended against the principle that requires the Government to be responsible
and accountable to its people. It went against the principle of openness or transparency. He also
submitted that s. 6 could not be saved by article 30(2) (b) of the Constitution, which permits
derogation from human rights in certain circumstances, as it was to general in its application. He
further contended that the law in Zanzibar did not impose such limitation and therefore s. 6 was
discriminatory and unconstitutional.

Counsel for the Government argued that s.6 was justified in public interest as it enabled the
Government to regulate and control the suits which were brought against it. She further argued
that to remove it would open the floodgates for frivolous and vexatious litigation, and as such
was saved by article 30(2) of the Constitution. She also argued that the Government and the
individual could not be equal as the Government had the responsibility of looking after the wider
interests of the society at large. She also argued the violation where the consent was withheld,
the victim of the violation had a remedy as he/she could apply for orders of mandamus or
certiorari.

Held:

1. There is no justification for a complainant of a violation of a basic human right to be restricted

to other forms of remedy under article 30(3) of the Constitution. A complainant should be free to
choose the best method legally open to him to prosecute his cause. Section 6 violated the basic
human right of unimpeded access to the Court to have one's grievances heard and determined
guaranteed under articles 13(3) and 30(3) of the Constitution.

2. In considering any act, which restricts fundamental rights of the individual, Court has to take
into account and strike a balance between the interests of the individual and those of the society.
Such a law must be lawful in that it must not be arbitrary. It should make adequate safeguards
against arbitrary decisions, and provide effective controls against abuse. Secondly, the limitation
imposed should be proportional in that it should not be more than is reasonably necessary to
achieve the legitimate object. That means that it must not be so widely drafted as to net
everyone, including untargeted members of society.

3. Section 6 was arbitrary in that it did not provide for any procedure for the exercise of the
Minister's power to refuse to give consent to sue the Government. It did not provide any
safeguards for against abuse. It applied to all and sundry. It was not justified in the public
interest.

4. Section 6 violated articles 13(1) and (2) of the Constitution, which guaranteed equality before
the law, as the remedy depended on which court one went to in the same Republic.

5. The equality before the law that article 13(1) envisaged embraced not only ordinary persons
but also the Government and its officials who should be subject to the same legal rules.

6. The requirement of consent to sue was not really necessary for the purpose of affording the
Government time to assess the claim and consider settlement out of Court. The restriction
militated against the principles of good governance, which called for accountability and
openness or transparency on the part of Governments.
Section 6 of the Government proceedings Act 1967 as amended by Act 40 of 1974
unconstitutional and void and struck down.

Lausa Alfan Salum and 106 Others v. Minister for Lands, Housing and Urban
Development Court of Appeal: November 9, 1994 Civil Appeal No. 15 of 1994

Facts and Issues

Lausa Salum and Others were the appellants in this appeal. They filed an application for orders
of certiorari against the two respondents namely the Minister of Lands, Housing and Urban
Development and the National Housing Corporation. They sought two orders. The first order
was that the entire order of the Minister GN 41 of 1992 be quashed. The second was that the
action of the National Housing Corporation increasing the rent of its premises occupied by the
applicants be quashed. The National Housing Corporation, the second respondent, was
established by an Act of Parliament, the National Housing Corporation Act 1990. Section 11 of
the Act provided that the Corporation subject to the provisions of the Rent Restriction Act of
1984 shall set the rents chargeable for the premises belonging to the Corporation.

The Rent Restriction Act also created the Housing Tribunals and their appellate body, the
Housing Appeals Tribunal. Section 2(1)(b) of the Rent Restriction Act empowered the Minister
responsible for Lands, Housing and Urban Development, by order published in the Gazette, with
the approval of the National Assembly signified by a resolution, to exempt any premises or class
of premises from all or any of the provisions of the Rent Restriction Act. Using these powers, the
Minister promulgated Notice No. 41 of 1992, exempting all premises in respect of which, a
specified parastatal body, is the lawful landlord from all the provisions of the Rent Restriction
Act, relating to the restriction on the amount of rent that may be charged or collected by the
specified parastatal body, as the landlord, from any tenant occupying any part of these premises.
The second respondent was among the specified parastatals. Following the publication of GN 41
of 1992, the second respondent increased rents for all its premises including those occupied by
the appellants. The appellants objected very strongly to those rent increases, which they called
unilateral.

When the second respondent rejected their protests, they filed an application in the High Court
challenging the validity of both the GN. 41 of 1992 and the increases of rent based on it. The
appellants challenged the validity on GN 41 on two grounds. The first one was that GN 41 of
1992 was ultra vires the parent Act because it exempted specified parastatals instead of a class of
premises as provided by s.2 (1)(c) of the parent Act. The second ground was that GN 41 of 1992
was unconstitutional as firstly, it discriminated against the appellants by depriving them of the
protection afforded by the Rent Restriction Act against arbitrary eviction, distress for rent and
the right to statutory tenancy. This protection was otherwise available to tenants generally, and
that this discrimination was contrary to article 13(2) of the Constitution of the United Republic
of Tanzania. Secondly, the argued that it barred the appellants from litigating their rights as
tenants in the Housing Tribunal and that this was contrary to article 13(3) of the Constitution.
Thirdly, they argued that it did not provide safeguards against abuse of power by the second
respondent. The appellants therefore challenged the rent increases by the second respondent on
the basis that since the order under which they were made was invalid; such increases were in
contravention of s.11 of the National Housing Corporation Act 1990. The High Court (Chipeta
J.), dismissed the application, holding that GN 41 of 1992 was both intra vires and the
constitutional. He held that since contrary to the appellant's assertions, GN 41 of 1992 exempted
a class of premises i.e. those owned by the specified parastatal bodies, the order was in accord
and not inconsistent with the parent Act. On the constitutionality of GN 41 of 1992, the learned
judge held firstly that it came within the saving provisions of article 30(2) of the Constitution as
it was not drafted in such wide terms as to net untargeted groups. Secondly, it was not
discriminatory in that it affected all the tenants of the specified parastatals. Thirdly, it did not
shut out the tenants of the specified parastatals from legal recourse in that ordinary courts were
available to the tenants to enforce their contractual rights against their landlords. Fourthly, he
held that although the GN 41 of 1992 should have contained a provision limiting the power of
the parastatals to increase rent to economic rent, the absence of such a clause was not fatal as the
courts could still intervene where unconscionable increases in rent were made. The appellants
appealed against that decision and filed five grounds of appeal. The first ground of appeal was
that the learned Judge, having found that GN 41 of 1992 had no legal safeguards against abuse of
power, ought to have found that it was bad in law and unconstitutional. He argued that it violated
Article 13 of the Constitution for being arbitrary and against the concept of equality before the
law.

The second ground of appeal was that had the learned Judge properly interpreted GN 41 of 1992,
vis a vis s.2 (1)(b) of the Rent Restriction Act, he would have found that the order, in exempting
a group of parastatals instead of a class of premises, was ultra vires the enabling provision. The
third ground of appeal was that had learned Judge, properly directed himself on the rules of
statutory interpretation, would have found that s. 2(1) (b) of the Rent Restriction Act, did not
confer upon the first respondent, parliamentary power to amend the substantive provisions of
s.11 of the National Housing Corporation Act. He argued further that the effect of GN 41 of
1992 was to amend s.11 of the National Housing Corporation Act, which he was not, empowered
to do.

Held:

1. While it was true that GN 41 of 1992 had no safeguards against arbitrary increases of rent in
that it was free of the Rent Restriction Act, this was not fatal to the constitutionality of the order.
The second respondent did not have and the order did not intend to grant arbitrary powers to
increase rent.

2. The appellants and other tenants of the second respondent could seek redress in ordinary
courts against any arbitrary raise in rents beyond economic rates. In the circumstances, it was not
correct to say that GN 41 created two categories of tenants, one enjoying legal protection and the
other without. The appellants' right to go to the ordinary courts was not illusory.
3. The effect of GN 41 of 1992 was that it removed the appellants and all tenants of the second
respondent from the protection of the Housing Tribunals under the Rent Restriction Act and
transferred them to the ordinary courts. This did not violate the concept of equality in article 13
of the Constitution.

4. Under the Rent Restriction Act, the Minister for Lands, Housing and Urban Development
could exempt any premises or class of premises its provisions. Therefore GN 41 of 1992 did not
contravene the Rent Restriction Act.

5. The Minister for Lands, Housing and Urban Development has no power to amend an Act of
Parliament. In promulgating GN 41 of 1992, the Minister was only exempting the premises
owned by the specified parastatals from the provisions of the Rent Restriction Act, but not
amending it.

6. The exemption order made by the Minister was perfectly valid as it was made under validly
delegated authority. The new rents could not be successfully challenged except by way of
challenging the second respondent to justify them.

Appeal dismissed.

Attorney General v. Lohay Akonaay and Joseph Lohay, Court of Appeal, December 21,
1994 Civil Appeal No. 31 of 1994

Facts and Issues

The respondents, namely Lohay Akonaay and Joseph Lohay were father and son, resident in the
village of Kambi ya Simba, Mbulumbulu Ward, Mbulu District, in Arusha Region. In January
1987, they successfully instituted a suit for recovery of land held under customary tenure. An
eviction order was subsequently issued for the eviction of the judgment debtors and the
respondents were given possession of the piece of land in question. At the time of the decision in
the present case, Civil Appeal No. 6 of 1991 was pending in the High Court. Before that appeal
could be disposed of, a new law, the Regulation of Land Tenure (Established Villages) Act 1992
came into force on December 28, 1992. It declared the extinction of customary rights in land,
prohibiting the payment of compensation for such extinction, ousting the jurisdiction of the
courts, terminating proceedings pending in the courts, and prohibiting the enforcement of any
court decision or decree concerning matters in respect of which jurisdiction was ousted. It also
established, inter alia, a tribunal with exclusive jurisdiction to deal with the matters taken out of
the jurisdiction of the courts. Aggrieved by this new law, the respondents petitioned against the
Attorney General in the High Court under Articles 30(3) and 26(2) of the Constitution of the
United Republic of Tanzania, for a declaration that the new law was unconstitutional and
consequently null and void. The High Court (Munuo J.) granted the petition and ordered the new
Law to be struck off the statute book. The Attorney- General appealed and hence the present
appeal.

From the lower court records, it was established that during the colonial days, the respondents
acquired a piece of land under customary law. Between 1970 and 1977, there was a country-wide
operation undertaken in the rural areas by the government and the ruling Party, to move and
settle the majority of the scattered rural population into villages on the mainland of Tanzania.
One such village was Kambi ya Simba, where the respondents resided. During the exercise,
commonly referred to as operation Vijiji, there was widespread re-allocation of and between the
villagers concerned. Among those affected were the respondents, who were moved away from
the land they had acquired during the colonial days to another piece of land within the same
village. The respondents were apparently not satisfied with this reallocation and it was for the
purpose of recovering their original piece of land that they sued in the case already mentioned.
Before their case could be concluded in 1989, the Extinction of Customary Land Right Order
1987 was made by the appropriate Minister under the Land Development (Specified Areas)
Regulations 1936 and the Rural Lands (Planning and Utilization) Act, 1973. The Order
extinguishing all customary rights in land in 92 villages within Arusha Region listed in a
schedule and vested the land concerned in the respective District Councils having jurisdiction
over the area where the land was situated. The respondents' village was listed as No. 22 in that
schedule.

Held:

1. The President holds public land on trust for the indigenous inhabitants of that land. As trustee
of public land, the President cannot deal with public land in a manner in which he wishes or
which is detrimental to the beneficiaries of public land. He may deal with it only where it
appears to him to be in the general interests of Tanganyika.

2. A law should not be interpreted to lead to an absurdity. The indigenous population of this
country is validly in occupation of land as beneficiaries of such land under customary law and
any disposition of land between them under customary law is valid and requires no prior consent
from the President.

3. Regulation 3 of the Land Regulations 1948, which requires every disposition of a Right of
Occupancy to be in writing and to be approved by the President only applies to a Right of
Occupancy granted under S. 6 of the Land Ordinance and has no application to customary or
deemed rights of occupancy, where a consent is required only in the case of a transfer by a native
to non-native.

4. The Constitution is supreme to every other law or institution and cannot be interpreted in a
manner that subordinates it to any other law.

5. Customary or deemed rights in land, though by their nature are nothing but rights to occupy
and use the land, are nevertheless real property protected by the provisions of Article 24 of the
Constitution. Their deprivation without fair compensation for unexhausted improvements and
even where there are no unexhausted improvements but value is added to the land, is prohibited
by the Constitution.

6. The Constitution allows for the establishment of quasi-judicial bodies, such as the Land
Tribunal. It does not however allow the courts to be ousted of jurisdiction by conferring
exclusive jurisdiction on such quasi-judicial bodies. Consequently, the purported ouster of
jurisdiction of the ordinary courts to deal with any justiciable dispute is unconstitutional.

7. Where a statute is found by a competent court to be null and void, court has inherent powers to
make a consequential order striking out such invalid statute from the statute book. The court
would invalidate the unconstitutional provisions and uphold the remainder of the Statute.

Appeal partly allowed and partly dismissed. No order as to costs.

Mbushuu alias Dominic Mnyaroje and Another v. Republic, Court of Appeal, January 30,
1995 Criminal Appeal No.142 of 1994

Facts and Issues

The High Court of Tanzania convicted the two appellants of murder of Saidi s/o Jingu. The
deceased was a herd's boy keeping cattle and goats for one Naftali s/o Ngamaa. On September 6,
1984, the deceased was killed and cattle and goats robbed. On the basis of the evidence of two
people who received the stolen animals, and who were earlier arrested and detained for the
murder and named other people other than the appellants as the people who gave the animals, the
trial Judge convicted the appellants. After submissions on the Constitutionality of the death
sentence, the learned trial Judge declared the sentence unconstitutional and committed each of
the appellants to life imprisonment. The appellants appealed against conviction on the grounds
that their evidence as well as the corroborating evidence was not reliable. The State supported
the conviction but appealed against sentence arguing that the death penalty was not cruel,
inhuman and degrading punishment. The appeals were consolidated. One of the issues for
determination was whether the death penalty is one of the instances where due process of law
would deny a person his right to life and its protection, and contravened article 13(6)(d) and (e)
of the Constitution.

Held:

1. The purpose of corroboration is not to give validity or credence to evidence, which is deficient
or suspect or incredible, but only to confirm or support evidence that is sufficient and satisfactory
and credible. If a testimony fails of its own inanities the question of its needing or being capable
of giving corroboration does not arise. Since PW1 and PW6 were not credible, they could not
corroborate any other evidence. As such, the appellants were not properly identified as the
persons who took the stolen animals to PW1.

2. Article 13(6) (d) seeks to protect the dignity of a person in the execution of a punishment.
Torture, inhuman punishments and degrading punishments are prohibited. Punishments, which
are not prohibited, have to be executed in such a way as to protect the dignity of a person.

3. The definition of torture in the United Nations General Assembly December 9, 1975
resolution (Resolution 3542) as well as the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment excludes pain or suffering arising only from
inherent in or accidental to lawful sanctions.

4. Concepts like torture, cruel, inhuman and degrading treatment are subject to evolving
standards of decency and have to be interpreted in the light of present-day conditions.

5. The death penalty is inherently inhuman, cruel, and degrading punishment and its execution
also offends article 13(6)(d) and (e) of the Constitution.

6. Article 30(2) of the Constitution allows derogation from basic rights of the individual in public
interest. A law that allows derogation should be lawful in that it should not be arbitrary, and it
should be proportional in that the limitation should not be more than reasonably necessary.

7. The death penalty as provided for in s. 197 of the Penal Code was not arbitrary and was a
measure reasonably necessary to protect society, and is therefore saved by article 30(2) of the
Constitution. It was therefore not unconstitutional.

Both appeals allowed. Conviction for murder quashed and sentence of life imprisonment set
aside.

Federation of Mines of Associations of Tanzania & 2 Others v. M/S Africa Gem Resources
(Afgem) and 7 others, High Court, August 22, 2001, Misc. Civil Cause No. 23 of 2001

Facts and Issues

The petitioners were representative bodies of miners. They filed a petition against the
respondents for the enforcement of basic rights under articles 14, 23, 24, 27, and 30(1) of the
Union Constitution of 1977, Ss. 4,5,12, and 13 of the Basic Rights and Duties Enforcement Act
No. 33 of 1994, and Ss.68 (e) and 95 of the Civil Procedure Code. The first six respondents were
connected in different capacities with commercial mining of tanzanite gemstones at Merelani
mines within Arusha Region. The seventh respondent was sued in his personal capacity although
at the material time he was Minister of Energy and Minerals. The conflict arose from the
respondent's connection with the mining operation of tanzanite gemstone at Merelani mines. The
petitioners sought among other things a declaration that the seventh respondent acted ultra vires
in granting a Special Mining License to the third respondent, and an order halting mining
operations in Block C of the mines and requested for the area to be granted to the petitioners.
They also sought an order of exhumation of the dead bodies of small-scale miners allegedly
buried alive by the first, second and third respondents in various pits dug in Block C of the mines
in the course of filling up exhausted pits. They further alleged that the respondents had jointly
and severally violated Article 27 of the Constitution by exporting minerals from the country
irregularly, unlawfully, and corruptly. They also alleged that the first six respondents infringed
article 14 of the Constitution by conducting mining operations negligently and causing harm and
injury by shooting and committing barbaric and inhuman acts.

The respondents contended that the petition was incompetent because it was not accompanied by
an originating summons as required under s. 5 of the Basic Rights and Duties Enforcement Act.
The first six respondents also argued that they were wrongly joined to the petition and that their
names ought to be struck off with costs. They also argued that the petitioners had alternative and
adequate means of redress for the alleged contraventions. They further argued that the petition
was superfluous and vexatious and should be dismissed with costs. The respondents also
contended that the alleged wrongs narrated in the petitions were not constitutional issues and that
proceedings for the enforcement of duties and basic rights under the Basic Rights and Duties
Enforcement Act must be founded on the breach of articles 12 to 29 of the Constitution.

It was also argued for the for the seventh respondent that he was wrongly joined in the petition
since in granting the Special Mining Licence he was performing his official functions as Minister
responsible for mining affairs in the Government of the Republic of Tanzania.

Held:

1. Provisions of law relating to human rights have to be construed liberally, with elasticity, and
not restrictively or rigidly. Being grave matters, allegations of human rights breaches should not
be dismissed on mere rigidity of the law. This however does not mean that parties to a human
rights case can disregard compliance with legal requirements with impunity. The liberal
approach is not applicable if it renders a provision of law nugatory.

2. Procedures of a petition and originating summons were, under s.5 of the Basic Rights and
Duties Enforcement Procedure Act alternative procedures and not cumulative.

3. Evidence on the actual identities of the first six respondents was required in order to determine
whether they had been disjoined. This matter could not be determined by way of a preliminary
objection.

4. The wrongs which are enforceable under the Basic Rights and Duties Enforcement Act must
be those which contravene the provisions of articles 12 to 29, which are in Part 111 of the
Constitution. Indeed s.6 (d) of the Act requires a petition to state, among other particulars,
specific articles of Part 111 Chapter 1 of the Constitution contravened. Contrary to this
requirement, the petition does not contain these specifications except in paragraphs 11 and 12.
The alleged violations alleged in paragraphs 11 and 12 of the petition; of articles 27 and 14 were
criminal offences of simple assault, corruption, economic sabotage, murder and corruption.
Others could be dealt with by way of ordinary suit. On the other hand, the allegations contained
in other paragraphs do not specify the Constitution provisions that they contravene. Even without
specification, these allegations are basically not constitutional matters. The objection that the
petitioners have adequate alternative means of redress for the alleged violations is therefore
sustained.

5. Despite this finding, the petition was not superfluous and vexatious.

6. The seventh respondent issued the alleged offensive Special mining Licence in his capacity as
Minister responsible for mines and not in his personal capacity. Since the suit was not for a tort,
he could not be sued in his personal capacity.

Petition incompetent and struck out with costs

Mwalimu Paul John Mhozya v. Attorney General (No.1), High Court, April 25, 1993, Civil
Case No. 206 of 1993

Facts and Issues

This was an application for an interlocutory injunction to restrain H.E. President Hassan Mwinyi
from discharging presidential functions pending the determination of Civil Case No. 206 of
1993. The suit sought a declaration that by allowing Zanzibar to join an organization known as
Islamic Conference Organization, the President was guilty of allowing or enabling that violation
to take place and was therefore personally answerable for the violation. It also claimed that his
continued exercise of presidential powers was unconstitutional as well as a potential danger to
the well-being of the United Republic and its citizens. The applicant appeared in person to argue
the application. At the hearing, learned Counsel for the State opposed the application. Firstly, he
argued that the application was incompetent as the affidavit sworn in its support was fatally
defective for failure to comply with the provisions of Order 19 Rule 3(1) of the Civil Procedure
Code. He further argued that it contravened S. 46A of the Constitution for failure to comply with
the special procedure laid down by Parliament for moving the Court. Lastly, he argued that S.
11(2) of the Government Proceedings Act, 1967, and those of Order 37 Rule 2 of the Civil
Procedure Code as amended by the Government Proceedings (Procedure) Rules, 1968 prohibited
the granting of the kind of injunction sought in this application.

Held:

1. Substance rather than form should be the court's primary concern. If legal steps can be taken to
cure any defects in a pleading or an affidavit, without substantially prejudicing the opposite
party, leave should be granted to take the remedial steps, if court has jurisdiction in the matter.

2. The principle that one branch of government should not encroach on the functions of another
is a very important principle. Removal or suspension from office of the President of the United
Republic is the legislature's exclusive prerogative in accordance with the procedure for removing
or suspending a President under S.46Aof the Constitution.

3. The right granted under S. 26(2) of Constitution to institute proceedings for the protection of
the Constitution and legality cannot be used to grant a remedy available only through
Parliamentary procedure.

4. No injunction can lie against the President under S.42 of the Constitution as well as common
law.

Application dismissed.

Peter Ng'omango v. Gerson M.K. Mwangwa and the Attorney General, High Court,
December 11, 1992, Civil Case No.22 of 1992

Facts and Issues

The plaintiff, a teacher, sued the Principal of his school, the first plaintiff claiming shs.1,
201,762/= as damages for malicious prosecution and defamation. The second defendant raised a
preliminary objection to the effect that the suit was incompetent for want of consent of the
Minister of Justice under the Government Proceedings Act. In response, the plaintiff raised a
constitutional point to the effect that the Government Proceedings Act as amended by Act was
unconstitutional as it offended articles 13(3), 13(6)(a) and 30(3) of the Constitution as well as s.5
(1) of.

Held:

1. The right to free access to the courts for a remedy is recognized by the Constitution in Articles
13 (1), (3), (6) and 30(3). The right to be heard includes the right to have free access to the
Courts for a remedy.

2. The requirement of a ministerial fiat before one could sue the government in s. 6 of the
Government Proceedings Act was unconstitutional and void as it deprived an individual the right
of free access to the courts.

3. A statute that infringes the basic human rights is not void if the Republic proves that it is in
public interest and makes adequate safeguards against arbitrary decisions as well as compliant
with the doctrine of proportionality or reasonableness. The Government Proceedings Act did not
have any safeguards against arbitrary action by the Minister as there was no appeal, there was
likelihood of abuse, and no guidelines for the Minister to follow when exercising this power, and
the procedure did not serve the ends of justice.

4. It also offended the doctrine of proportionality in that it was so broad such that it denied an
effective and prompt remedy to all and sundry without distinction, even those who had clear and
genuine grievances against the government. It is therefore void and unconstitutional.

5. The fact that Tanzanians of Zanzibar could sue the Union Government without ministerial fiat,
while their counterparts in mainland Tanzania could not do so made the impugned law
discriminatory and thus infringed on articles 13(1) and (5) of the Constitution.

6. The requirement of ministerial fiat militated against the principle of accountability, openness
and transparency in a multiparty democracy.

Preliminary objection dismissed. Suit to proceed for trial as scheduled.

Shaban Khamis Mloo and Others v. The Superintendent of Zanzibar Prisons and Another,
High Court, February 19, 1991

Facts and Issues

The five applicants filed an application for issue of directions in the nature of habeas corpus,
section 361(b) of the Criminal Procedure Decree. In their supporting affidavit, they alleged that
they had been detained without warrant, without being shown a detention order, and without
being informed of the reasons for their detention. The applicants asked for summons to be issued
to the Commissioner for the Institutions of Rehabilitation of Offenders (Prisons) and the
Attorney General to show cause why a writ of habeas corpus should not issue directed to them to
produce the bodies of the applicants and to show cause why they should not be released
forthwith. Counsel for the applicants argued that the detention of the applicants was illegal
because the detention order was issued under a defunct Zanzibar Preventive detention Decree no.
3 of 1964 which was no longer applicable on matters relating to the security of Zanzibar, which
was part of the United Republic of Tanzania. He argued further that security matters were Union
matters between Tanzania Zanzibar and Tanzania Mainland listed in the First Schedule to the
1977 Constitution of the United Republic and governed by the National Defence Act No. 3 of
1970. He finally argued that the detention was illegal as the proper procedure for detaining
persons under the Preventive Detention Act no. 60 of 1962 as amended by Preventive Detention
(Amendment) Act No. 2 of 1985 was not followed. It was argued on behalf of the State that the
applicants detention was legal as the Preventive Detention Decree No. 3 of 1964 was still in
force and that maintenance of peace and good order were non-Union matters, and that the
provisions of the Union Constitution did not oust the powers of the President of Zanzibar under
the Preventive Detention Decree 1964.

The Court framed the following issues:-

(i) Whether the effect of extending the application of the Mainland Preventive Detention Act of
1962 conferring powers of preventive detention on the Union President, to the whole of Tanzania
legally precluded the President of Zanzibar from exercising similar powers conferred on him in
relation to non-Union matters by the Zanzibar legislature.

(ii) Whether the detention of the applicants was not valid merely because it had been carried out
under the Preventive Detention Decree of 1964 instead of the Union Preventive Detention Act of
1962 as amended by the Preventive Detention Act of 1985.

Held:

1. The Zanzibar Preventive Detention Decree of 1964 deals with matters relating to defence and
security. At the same time the Union Parliament Preventive Detention Amendment Act of 1985
extended the application of the Tanzania Mainland Detention Act of 1962 to Zanzibar as well as
the Mainland. However, preventive detention is not a non-Union matter, which is exercisable,
only by the Union President as the exercise of such power may be necessitated by incidents or
activities relating to defence and security as well as other non-Union matters.

2. Matters surrendered to the Union Government do not include "peace and good order",
"preventive detention" or "detention power". Preventive detention may be ordered in cases other
than those related to defence and security and which may not necessarily involve the application
of National defence or security. It may be carried out to prevent breaches of peace and
maintenance of good government. It was not the intention of the Union Parliament to deprive the
President of Zanzibar of powers to take preventive measures towards those who disturb the peace
in Zanzibar in relation to purely non-Union matters.

3. In light of Articles 64(4) and 65(3) of the Union Constitution, the Zanzibar Preventive
Detention Decree of 1964 in as far as it provides for matters of defence and security is
inconsistent with the Union Constitution. The President of Zanzibar cannot therefore detain any
person under that law on the grounds of defence and security.

4. The detention of the applicants in this case had been ordered on security grounds, and it being
a matter reserved for the Union should have been left for the President of the United Republic
under the Preventive Detention Act of 1962 as amended by the Preventive Detention
Amendment Act of 1985. Consequently, the detention of the applicants was illegal.

Application granted. As the applicants were already released, no order for their release made.

S.M.Z. v. Machano Khamis Ali and 17 Others. Court of Appeal, November 21, 2000,
Criminal Application No. 8 of 2000
Facts and Issues

This was an appeal by the accused against the decision of the learned Chief Justice of Zanzibar
sitting as the High Court of Zanzibar to the effect that the offence of treason could be committed
against the Revolutionary Government of Zanzibar. Before delivery of this appeal decision, the
Registrar released the accused from custody following the entry of the nolle prosequi by the
Prosecution. However the decision by the High Court that raised grave constitutional issues was
left intact and hence this revision under S. 4(3) of the Appellate Jurisdiction Act 1979 as
amended by Act No. 17 of 1993. The eighteen accused persons were charged with treason c/s 26
of the Penal Code. The litigation was protracted and finally landed into the High Court of
Zanzibar. After amendment of the charge, which was initially defective, the accused raised
among other issues the preliminary issue that the charge of treason against the authority in the
Revolutionary Government of Zanzibar (Serikali ya Mapinduzi ya Zanzibar S.M.Z.) was not
maintainable as Zanzibar was not a sovereign state.

Held:

1. On an indictment for treason, the following matters have to be proved, that the act was
treasonable, that the act is against a sovereign or state, and that the act was done by person who
owes allegiance to the sovereign or state.

2. For a state to exist, there must be a people, a country in which people have settled down, a
government i.e. a person or persons who are the representatives of the people who rule according
to the law of the land, and that government must be sovereign.

3. Sovereignty has dual aspects of internally of relating to the power to make and enforce laws
and externally to freedom from outside control. The United Republic of Tanzania is one country
and one state. The International persons called Tanganyika and Zanzibar ceased to exist as from
April 26, 1964 because of the Articles of Union and surrendered their treaty making powers to a
new International person called the United Republic of Tanzania. A nation cannot indefinitely
surrender the treaty making power to another, and at the same time retain its existence as a
sovereign state.

4. Union matters and non-Union matters are provided for under the Union Constitution, the First
Schedule to the said Constitution, as well as legislation enacted under Article 64(4) extending to
the entire Union. On the basis of the principle of duality and the fact of exclusive jurisdiction of
the Revolutionary Government of Zanzibar over all non-Union matters in Zanzibar, sovereignty
is divisible within the United Republic.

5. S. 3 of the Tanzania Intelligence and Security Services Act defines "security" to include
"subversion", and "subversion" is defined in the same Act to mean attempting to, inciting,
counselling, advocating, or encouraging the overthrow by unlawful means of the Government of
the United Republic of the United Republic or of the Revolutionary Government of Zanzibar.
6. Subversion and treason are cognate offences as they are both about the overthrow of or the
revolting against authority. They both fall securely within security, which by virtue of item 3 of
the First Schedule is a Union Matter.

7. Treason is defined by article 28(4) of the Union Constitution, as the gravest offence against
the United Republic. Although the article does not create an offence, it acknowledges the
existence of the offence as defined by law. It is the only offence elevated so by the Constitution.
The clause makes the offence of Treason a Union Matter although the offence is not contained in
the First Schedule.

8. The combined effect of Article 28(4) and Article 64(5) of the Union Constitution is to repeal
s.26 of the Penal Code Decree.

The Permanent Secretary (Establishments) the Attorney General appellants v. Hilal

Hamed Rashid and 4 Others, Court of Appeal, October 4, 2004, Civil Appeal No. 64 C/F
No. 66 of 2002

Facts and Issues

The respondents were very senior police officers whose services were terminated abruptly by
identical letters dated May 6, 1996, from the first appellant to every one of them informing them
that the President had terminated their services retroactively from May 4, 1996. the letters
reached the respondents after the news of their termination had hit the headlines of some local
newspapers, notably, the Daily News, Nipashe, and Mtanzania.

The respondents claimed that their premature retirement was illegal and invalid. Consequently,
the respondents claimed payment of salaries and all dues owing to them from the date of
premature retirement to the time of compulsory retirement age of each of them, general damages
to the tune of shs. 300,000,000/=for each and interest from the date of judgment until the date of
payment in full. The learned trial Judge (Kyando J.), found for the respondents holding that the
Civil Service Act, 1989, did not apply to members of the Police Force as the Police Force and
Prisons Service Commission Act, 1990 that did not contain the phrase "retirement in public
interest", governed them.

The trial Judge further found that their premature retirement was illegal and void. He awarded
damages of shs. 70,000,000/= to each of them for wrongful termination of employment with
interest at court rate from the date of judgment until payment in full.

The learned Judge considered four matters in making the award for damages. First of all, he
considered the publicity that surrounded the retirement of the respondent. Secondly, he
considered that "retirement in public interest in this country carries a very dad stigma on the part
of the retiree. Thirdly, he accepted the evidence of the respondents that their families received
the news "with shock and consternation plus anguish". Lastly, he considered that the respondents
lost their jobs.

However he held that they were not entitled to any payment from the date of illegal retirement to
their respective dates of compulsory retirement.

The learned Judge also dismissed another claim based on the Police Force Regulations, 1995, for
respondents 1 and 2 for additional superannuating benefits due to officers of the rank of
Commissioner of Police and above.

Held:

1. The President terminated the services of the respondents in public interest and their letters of
retirement said so. Article 36(2) Constitution empowers the President to remove an officer from
office. When the President "retires in public interest", an officer, he is acting within the
provisions of Article 36(2) of the Constitution.

2. However, the powers of the President under the provisions of Article 36(2) are subject to other
provisions of the Constitution or any relevant law. In this case the relevant law was the Police
Force and Prisons Service Commission Act that does not contain the phrase "retired in public
interest".

3. On the principal of generalia specialibus non derogant meaning that general things do not
derogate from special things, the controlling provision in this case was the Police Force and
Prisons Service Commission Act which did not recognize retirement in public interest. The
respondents were therefore wrongfully retired.

4. On damages, there was no evidence that the appellants were responsible for the publications.
However, the last two considerations were weighty enough to warrant the award of damages.
Moreover, the first and second respondents who were Commissioners of Police ought to have got
slightly more. They would be granted shs. 80,000,000/= each and the damages for the rest would
be upheld.

5. For some reason, a person may not be eligible to get salary and other benefits for the period up
to the compulsory retirement age. So the claim for statutory salaries to the respondents up to the
date of compulsory retirement each would fail.

6. As the Police Force Regulations 1995 were not in force, the claim by the 1st and 2nd
respondents for superannuating benefits under the above Regulations would fail.

Appeal dismissed with costs. Cross-appeal partly allowed.

The Registrar of Societies and 2 others v. Baraza la Wanawake Tanzania, Court of Appeal,
May 25, 2000 Civil Appeal No. 82 of 1999

Facts and Issues

The respondent filed a petition in the High Court under Articles 13(6), 18, 19, 20(1), 24,26(2)
and 30(4) of the Constitution of the United Republic of Tanzania, ss.4 and5 of the Basic Rights
and Duties Enforcement Act 1994, and s. 95 of the Civil Procedure Code, 1966, challenging the
cancellation of their registration from the Register of Societies. They sought a declaration that
the cancellation was null and void and an order of certiorari or a mandatory injunction or an
order restoring their registration on the Register of Companies.

The State raised a preliminary objection that a petition not made by originating summons as
prescribed in the Basic Rights and Duties Enforcement Act was incompetent and incurably
defective. He also argued that the High Court had no power to issue orders of certiorari
proceedings brought under the Act as s.8(4) of the Act forbids or excludes the exercise of such
power. He further contended that it had such power only under the Law Reform (Fatal Accidents
and Miscellaneous Provisions) Ordinance.

The High Court overruled the objection, holding that proceedings for obtaining redress in respect
of violations of basic rights guaranteed under the country's Constitution may be initiated by way
of petition or originating summons, and that s.8 (4) of the Basic Rights and Duties Enforcement
Act did not prohibit the High Court from issuing prerogative orders under that Act to redress
human rights violations. The appellant appealed.

Mr. Mwindunda for the appellant argued that the High Court erred in holding that filing a
petition or originating summons could initiate the proceedings.

Held:

1. Petition and originating summons are both originating processes. Complainants of breaches or
violations of fundamental or basic rights and freedoms should be given unimpeded access to the
courts to seek redress. To require a complainant to use two parallel processes to commence a
single action cannot facilitate access.

2. The procedure of originating summons involves adducing evidence by affidavit and counter-
affidavit and if necessary, reply to counter-affidavit. This would be in addition to adducing oral
evidence by the plaintiff and defence sides at the trial of the petition. This does not provide easy
and fast access but rather complicated, prolonged and cumbersome access.

3. The procedure of originating summons is suited to actions where there is no great dispute on
the facts. Allegations of human rights violations are highly contentious matters.
4. Effect of literal interpretation of s.5 of the Basic Rights and Duties Enforcement Act is that a
complainant of a human rights violation should petition the High Court by originating summons.
Petition and originating summons as originating processes are mutually exclusive and cannot
complement each other. Using both in the same action would be superfluous and impracticable.
The word "or" would be read into it to make the two procedures of petition and originating
summons provided for under s.5 of Act alternative processes for commencing proceedings of
human rights violations.

5. Under the provisions of ss.5 and 8(4) of Basic Rights and Duties Enforcement Act a
complainant of human rights violations should not invoke the procedure or ask for prerogative
orders like certiorari, available under the Law Reform Ordinance. This does not mean that the
respondent, if he succeeds is without remedy. The High Court has wide powers under s. 13(1)
and (3) of the Act to grant appropriate remedy.

Appeal partly allowed.

CHUMCHUA s/o MARWA v OFFICER i/c of MUSOMA PRISON & ANOR., HIGH COURT OF TANZANIA AT
MWANZA, MISCELLANEOUS CRIMINAL CAUSE No. 2 of 1988

In the Matter of an Application for a Writ of Habeas Corpus in respect of Marwa Wambura Magori and
In the Matter of the United Republic of Tanzania (Unreported) Mwalusanya, J. On 29th September,
1987, the President of the United Republic of Tanzania (by then Julius Kambarage Nyerere) ordered the
deportation of one Marwa Wambura and 155 others from Mara Region to Lindi Region. The grounds for
their deportation were that the deportees, continued residence in Mara region was dangerous to peace
and good order. While awaiting their deportation they were all detained in the Musoma prison. The son
of the deportee Chumchuwa Marwa filed an application for a writ (read an order of) of habeas corpus in
respect of his father. The Decision of the Court: 21. The Court raised the question of Constitutionality of
the Deportation Ordinance, 1921. The issue was whether the Deportation Ordinance was constitutional.
The Court held that the Deportation Ordinance, 1921 is unconstitutional for it offended the Bill of Rights
contained in the Constitution of the United Republic of Tanzania, 1977.

FACTS: This is an applicatrion for a writ of habeas corpus in respet of one Marwa Magori who is detained
at Musoma Prison, Mara Region pending his deportation to Lindi Region. A deportation order was made
by the President of the United Republic of Tanzania on 29/9/1987 in respect of this deportee and 155
others, so that they be deported to Lindi Region because “their continued residence within the Mara
Region and the contiguous Regions was dangerous to peace and good order.” By the time the
application came for hearing before me for the first time on 26/2/1988, it was said about half of the 156
deportees (including the deportee who is a subject matter of this case) had yet to be deported because
of non-availability of suitable transport. This application was filed by the deportee’s son one Chumchua
s/o Marwa. The Officer i/c of Musoma Prison appeared in person while the Attrorney-General was
represented by a State Attorney Mr. Songoro. As expected the two respondents when asked to show
cause as to why the deportee should not be released, they produced a photostat copy of a deportation
order in respect of the 156 deportees. I have checked the deportation order and found that it is proper
in that it has the required official seal and bears the signature of the President. All things being equal,
the deportation order appears alright. Preliminary Point: 1. Whether the writ of habeas corpus is
applicable to a deportee as distinct from a detainee. A Writ of habeas corpus is not open to a deportee
at large in Tanzania. However, denial of a writ of habeas corpus does not mean that the deportee is
without a remedy to challenge the deportation order, for the fundamental maxim ubi jus ibi remedium
(there is no wrong without a remedy) is applicable to him. It is open to the deportee in such
circumstances to seek relief by way of an order of certiorari or he may apply for a declaration that his
restriction is illegal. However, in respect of the present applicant, I am satisfied that the writ of habeas
corpus is open to him. Under s.5 of the deportation Ordinance (Cap 38 of Revised Laws of Tanzania
Mainland) where a person is to be deported, the president is entitled to detain that person in custody or
in prison, until a fit opportunity for his deportation occurs. As I have indicated earlier, the applicant’s
father is still detained in Musoma Prison pending his deportation to Lindi Region. As he has not been
sent to Lindi, then he is a detainee and this application is therefore in order. The case from Uganda
decided by East Africa Court of Appeal in Grace Stuart Ibingira and Others v Uganda [1966] E.A. 445 (CA)
supports this proposition of law that an application for a writ of habeas corpus is proper for a deportee
who has been detained but not for one who is at large. Since the Incorporation of the Bill of Rights in our
1977 Constitution by Constitution (Fifth) [Amendment] Act, 1984, [Act No. 15 of 1984] the High Court
under Article 30 (3) of the Constitution may declare any law void and of no effect, which infringes the
basic human rights of the Constitution. That power of the High Court was kept in abeyance for a period
of three years by Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984 [Act.
No. 16 of 1984] and that three years period expired on 16/3/1988 and so the High Court since then has
the power to declare any law void for being unconstitutional. This case was heard on 22/3/1988 and for
sure the High Court had that power. Preliminary Objection: Mr. Songoro for the Republic argued that
since the detention was made on 29/9/1987 (expiry of 3 years on 16/3/1988) when the three year
period had yet to expire, then the High Court has no power to declare any law void for being
unconstitutional. I don’t agree. The Bill of Rights became operative on 16/3/1985 vide Constitution
[Consequential, Transitional and Temporary Provisions] Act, 1984 and since then any organ of the
government was enjoined to act in accordance with those basic human rights. It is not true that the
observance of the Bill of Rights was also kept in abeyance for a three year period, what I know is that it
is only the power of the court that was suspended for a three year period (justiciability). So the High
Court in this case has power to consider the constitutionality of legislation. It may be asked as to
whether the Bill of Rights may be enforced when the procedure and rules of the High Court for
conducting such cases are yet to be enacted by the government as indicated in Article 30 (4) of the
Constitution. In my judgment the High Court may enforce the Bill of Rights without the requisite rules of
the court because that Article provides that the government “may” enact such rules of the Court. So it is
not a must (not mandatory) that such rules are enacted prior to the enforcement of the Bill of Rights.
Preliminary Objection: (suo moto – by itself) The Tanzania Bill of Rights does not expressly provide for
the constitutional remedies available to a claimant, by implication the High Court shall have power
inherent in itself to issue directions or orders or writs including writs in the nature of habeas corpus,
mandamus, prohibition, quo warrants and certiorari… So our High Court should not feel shy to enforce
the fundamental rights notwithstanding the fact that the government has yet to enact rules of
procedure for the enforcement of the same. The Crucial question: Whether the Deportation Ordinance,
1921 is constitutional or it offends the fundamental rights enumerated in our Bill of Rights? A radical
Tanzanian Lawyer Mr. Harrison George Mwakyembe in the book The State and the Working People of
Tanzania has complained that the Bill of Rights is “so well punctured with numerous savings and
exemptions that the Bill of Rights has been rendered an empty shell.” He argues that what been given by
one hand, has been taken away by another hand. For sure, a superficial reading of the limitations and
restrictions on the Bill of Rights would lead one to conclude as did Mr. Mwakyembe, that the Bill of
Rights has been rendered an empty shell. However, I am of the considered view that the position is no
so bleak. For one thing, it is salutary to remember what the late Mwakasendo, J.A. told us in the case of
Attorney-General v Lesinoi Ndeinai & Joseph Selayo Laizer and Two Others [(1980) TLR 214, at 239)]
where he said: “The liberty of the individual is so precious and fundamental to the concept of the Rule of
Law that the Courts are duty bound to see that it is not taken way except under express provisions of
the law of the land.” And it is conceded that it is a well known principle of statutory interpretation that
an Act of Parliament must be presumed to be intra vires the Constitution. However once the applicant
shows that a piece of legislation is ex-facie ultra vires the Constitution, then the onus shifts on the State
to show that, that piece of legislation is saved by the saving provisions… Those are sensible principles,
which I recommend should be adopted in Tanzania by our courts in interpreting the Constitution, if the
Bill of Rights is not to exist in theory only. This is because I believe that the Rule of law means more than
acting in accordance with the law. The Rule of Law must also mean fairness of the government. Rule of
Law should extend to the examination of the ideal; and that the law does not give the government too
much power. The Rule of Law is opposed to the rule of arbitrary power. The Rule of Law requires that
the government should be subject to the law rather than the law subject to the government. If the law is
wide enough to justify a dictatorship (wasn’t he replying to someone who said he could be a dictator?)
then there is no Rule of Law. Therefore if by the Rule of Law all it means is that the government will
operate in accordance with the “law”, then the doctrine of Rule of Law becomes a betrayal of the
individual if het laws themselves are not fair but are oppressive and degrading. The courts have to
bridge the yawning gap between the letter of the law and reality in the field of Rule of Law… …I am of
the considered view that the Deportation Ordinance is not law as it violates the fundamental right of
“equal protection of the law” under Article 13. Any law to be valid under Article 13 (6) (a) which vests in
any organ of the government the power to decide a matter affecting the rights of a citizen must contain
a provision for the principle of natural justice that is the “right to be heard”. The audi alteram partem
rule is an integral part of any reasonable, fair and just procedure that seeks to deprive a person of his
personal liberty. The rule that no man shall be condemned unless he has been given prior notice of the
allegations against him and a fair opportunity of being heard is a cardinal principle of justice. Parliament
may not deprive a person of a right to a fair hearing in accordance with the principle of fundamental
justice for the determination of his rights and obligations. The right to a hearing made its first from God
in the Garden of Eden. In the famous English case known as the Bentley’s Case {Orse. known as The King
v University of Cambridge (1723) 1 Str. 557 and (1723 Fortes Rep. 202} one of the judges observed that
even Adam had been called upon by God to meet the charge of having eaten of the forbidden tree,
before suffering expulsion. Therefore in so far as the Deportation Ordinance does not provide for a right
to be heard it violates a fundamental right provided in Article 13 and so it is void and of no effect. The
same Article 13 (6) (a) provides for a right of appeal to either the detainer or any other organ provided.
But I note that section 3 of the Deportation Ordinance forbids the right of appeal. The statute is for that
reason unconstitutional. At least the said statute should provided a mechanism for review, more so that
the deportation is for an indefinite period. At this juncture it is perhaps opportune to quote what the
Judicial System Review Commission of Tanzania [Msekwa Report 1977] said in relation to rules of
natural justice: The policy of Ujamaa and Self-Reliance centres on man. Man is the starting point and the
terminus. Devised as it is, by man to enable him liberate and develop himself, its success or failure
entirely depends on man. Under that system, natural justice, a concept so deeply rooted in our national
jurisprudence, must continue to prevail and the principles thereof must be developed, respected and
heeded by all persons in positions of power, influence and decisions. Therefore it is no accident that the
principles of natural justice were incorporated in our Constitution under Article 13 (6) (a). I understand
that it is a serious matter for the courts to declare that a President (agonizing) of a country has exceeded
his powers. So serious that we think hard or twice before so holding. However, as Lord Denning, M.R.
said in the English case of Laker Airways v Department of Trade [(1977) 2 All E.R. 182 and (1977) Q.B.
643] that: But there comes a point when it has to be done. These courts have the authority – and I
would add, the duty – in a proper case, when called upon to inquire into the exercise of a discretionary
power by a Minister or his department … They stand, as ever, between the Executive and the subject,
alert as Lord Atkin said in a famous passage – alert to see that any coercive action is justified in law. This
is one of those proper cases referred to by Lord Denning. For sure judicial review is a weapon which has
to be used with great care and circumspection, such that the Judiciary has to be extremely careful to see
that under the guise of redressing a citizen’s grievance, it does not encroach upon the sphere reserved
by the Constitution to the Executive and the Legislature. Indeed that made the task of a judge in a
modern society increasingly complex. In the words of Prof. Wolfgang Friedmann in his book Law in a
Changing Society [Friedmann, Wolfgang, Law in a Changing Society, London: Stevens, 1964), at p. 65]
that: In modern democratic society, the judge must steer his way between the Scylla of subservience to
government and the Charybdis (between a rock and a hard place – each of which is very dangerous) of
remoteness from constantly changing social pressure and economic needs. Thus hardly any major
decision can be made without a careful evaluation of the conflicting values and interests. The lot of the
judge is thus much heavier but nobler. A great judge is the one who is prepared to shoulder that burden
and make his decisions as articulate as possible, being a reflection of the conflicts before him. It is
tempting to seek escape from the burden of the decision, taking refuge in such expressions as “it is a
political question” or that I have to decide “in public interest”, but those rationalizations can hardly take
one far. Judges should not shamelessly exploit their personal prejudices instead of trying to base their
decisions in accordance with their oath of office. But is the matter before me reserved to the Executive
alone for decision? Or rather, is the matter of the legality of the detention of the citizen in this case a
matter exclusively for the executive to decide for it being a political question? Or rather, is the matter of
the legality of the detention of the citizen in this case a matter exclusively for the Executive to decide for
it being a political question? There are two schools of thought as to whether there is a political question
doctrine as such. The first school of thought, the “judicial abstainers” root the political question doctrine
in what seems to be a rather vague concept of judicial “prudence” whereby the courts enter into a
calculation concerning the political wisdom of intervention in a sensitive area. This school stands for a
hand-off policy on matters which are political in character. They advise that the court should sedulously
(diligently) avoid meeting contentious issues but should sit in resplendent dignity, aloof from the
perpetual tussle between liberty and authority. For example Robert B. Martin says: Nothing is better
guaranteed to undermine such independence (of the judiciary) than judges who cross the ephemeral
boundary between “law” and “politics.” Only by recognizing the limits within which they are to exercise
their function can judges ensure that they will remain free from political interference. (Martin, R.B., “In
the Matter of An Application by Michael Matovu”, Vol. 1, No. 1, Eastern African Law Review, April 1968,
p. 61 at 66) Then the learned author cites the examples of when the judges crossed the boundary at
their own peril and for sure there was a backlash from the Executive. First he mentions the rejection by
the United States Supreme Court of large parts of President Roosevelt’s (Franklin Delano) New Deal in
1935 and the court had to be “packed”; secondly in Canada during the depression of the 1930s when
the Judicial Committee of the Privy Council struck down the bulk of Prime Minister Benett’s Recovery
Programme, whereof the Privy Council was done away with as the final court of appeal for Canada.
Other examples from the Commonwealth which come to my mind are: In Ghana in 1963 when the Chief
Justice Sir Arku Korsah had to be sacked by the (The Osagyefo – redeemer in the Twi language, Ghana)
President Kwame Nkrumah, as well as the dismissal of the other judges, for allegedly delivering
subversive judgments. Again in June, 1977, Mr. Justice S. Azu Crabbe – then Chief Justice of Ghana was
sacked for crossing the ephemeral boundary. In 1969 the Chief Justice of Zambia Mr. Justice Skinner
resigned for crossing swords with the Executive. We are therefore reminded that we should put our
hands off in cases which are political in character or else we are doomed. However on my part [amejitoa
mhanga, like he is saying I am ready to die for my convictions] I subscribe to the other school of thought
of “judicial activists” which holds that anyone whose life, liberty or property has been threatened or
impaired by any branch of the government has a judiciable controversy and could properly repair to a
judicial tribunal for vindication of his rights. Thus this school defines political questions principally in
terms of the separation of powers as set out in the Constitution and turn to the Constitution itself for
the answer to the question when the Courts should stay their hands – off. Thus in an American case of
Baker and Others v Carr and Others (1962) 369 US I86 AT PP. 210-211) Mr. Justice Brennan of the U.S.
Supreme Court said: The non-justiciability of a political question is primarily a function of the separation
of powers … Deciding whether a matter has in any measure been committed by the Constitution to
another branch of government or whether the action of that branch exceeds whatever authority has
been committed, it is itself a delicate exercise in constitutional interpretation and it is a responsibility of
this Court as ultimate interpreter of the Constitution. …It is my holding that the Deportation Ordinance
which was enacted by the colonialists in 1921 is null and void and of no effect. This piece of legislation
needs to be revamped in line with the basic human rights enacted in 1984. One wonders as to why this
piece of legislation was not amended during the three years period of grace alongside the Preventive
Detention Act, 1962 (Cap. 490 of the Revised Laws of Tanzania Mainland) which was amended by
Preventive Detention (Amendment) Act, 1985 (Act No. 2 of l985) and among the major amendments
introduced in there were… In conclusion I wish to say that the image of the judiciary in Tanzania since
independence in the field of protection of the liberty of a citizen in the face of an administrative
detention order has not been a good one. That led the Legal Aid Committee of the Faculty of Law of the
University of Dar es Salam to complain in their book Essays on Law and Society (Kampala, Sapoba
Bookshop Press Ltd., 1985, at p. 35) that these courts are more executive-minded than the Executive
itself. While in the same vein a radical Tanzanian lawyer Harrison George Mwakyembe in his paper “The
Bill of Rights in Tanzania – A General Overview” has attacked the attitude of our courts as “uninspiring”
when moved by a citizen to challenge a detention order. That is not all. Prof. Issa G. Shivji in his biting
criticism in the book he edited titled The State and the Working People in Tanzania [Shivji, I.G. (Ed.), The
State and the Working People in TZ, p. 7) he says: And both as a matter of law and practice the powers
of the Executive cannot be or are rarely challenged in courts or if challenged stand little chance of
success. This is due to a combination of factors, such as the widely-worded law which leaves little room
for judicial activism; timidity and mediocrity on the part of judges accompanied by loyalty born out of
pressures and expectations of favour from the Executive. This is a serious charge against the judiciary
and perhaps there is need for us to examine and search our conscience or else Prof. Shivji should be in
the dock. The former Chief Justice of India Mr. Justice Bhagwati in an article on the role of the judiciary
in the changing society in developing countries (The Commonwealth Lawyer, December, 1986, at p. 65)
has urged that the judiciary has a duty to fight for a just, social and political order in society. He says
that: This challenge is an important one, not only because judges are under a duty to create and mould a
just society but also because the social and political legitimacy of a modern judiciary becomes
questionable if it fails to make a substantial contribution to the issue of social justice. For sure if the
judiciary cannot come to the aid of a poor citizen then oppressed, then its existence is questionable. We
can do without it and perhaps create other institutions for that noble purpose. In the event the
application is granted and the writ of habeas corpus to issue prayed. The Deportation Ordinance is
unconstitutional, void and of no effect. The deportee who is the subject matter of this application should
be immediately released. Order accordingly