Equality Before The Law Between The Stat

RUAHA CATHOLIC UNIVERSITY
EQUALITY BEFORE THE LAW BETWEEN THE STATE AND
INDIVIDUALS IN TANZANIA: A CRITICAL ANALYSIS OF THE LAW
OF LIMITATION ACT
A Research Paper Submitted in Partial Fulfilment of the Requirements
for the Award of the Bachelor of Laws Degree (LL.B) of Ruaha Catholic
University, Iringa, Tanzania.
BY
MASSAWE, DEOGRATIUS B.
360/LLB/T/2014
SUPERVISED BY DR. ANA LUIS
FACULTY OF LAW
May 2018
i
CERTIFICATION
The undersigned, certifies that she has read and thereby recommends for acceptance by
the Ruaha Catholic University, a research paper titled “Equality Before the Law Between the
State and Individuals in Tanzania: A Critical Analysis of the Law of Limitation Act” in
partial fulfillment of the requirements for the Award of Bachelor of Laws Degree (LL.B) of
Ruaha Catholic University.
…………………………………..
Dr. Ana Luis
Supervisor
Date………………..2018
ii
DECLARATION
I, MASSAWE, Deogratius Benedict, do hereby declare that this research paper is the
result of my own original work and that it has not been presented and will not be presented to
any other university for the similar or any other degree award.
Signature……………………………….Date …………….......................2018
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COPYRIGHT
This research paper is copyright material protected under the Berne Convention, the
Copyright and Neighboring Rights Act of Tanzania of 1999 and other International and
national laws. It should not be reproduced by any means, in full or in part, except for
scholarly work only without the written permission of the author or the Ruaha Catholic
University on behalf of the author.

iv
ACKNOWLEDGEMENTS
First and foremost, praises and thanks to the God, the Almighty, for His showers of
blessings throughout my research work to complete the research successfully.
This research paper would have not been successfully accomplished without the
assistance of various individuals who I feel indebted to extend my heartfelt gratitudes.
I would like to express my deep and sincere gratitude to my research supervisor, Dr Ana
Luis. Without her assistance and dedicated involvement in every step throughout the process,
this research would have never been accomplished.
I am extending my thanks to the Judiciary of Iringa for their time in filling out the
research questionnaires which helped me in collecting data for this research.
I would also like to extend my sincere appreciations to legal experts and lecturers from
Ruaha Catholic University, Attonery General Chambers in Iringa and various advocates
stationed in Iringawho were involved in the survey for this research. All of these legal experts
helped me in completion of research by sparing their time by filling questionnaires which
were used to collect data.
Finally, I must express my very profound gratitude to my family; particularly to my wife
Stecy, for providing me with unfailing support and continuous encouragement throughout my
years of study and through the process of researching and writing this research. This
accomplishment would not have been possible without her.

v
DEDICATION
This research is dedicated to my beloved parents Benedict Mandisi Nangeda and Lucina
Lewanga Mireni who without their love, efforts and resources I could not have being where I
am today. I pray that the Almighty God continue to bless them with good health and long life.
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ABSTRACT
This reseach on the equality before the law between the State and individuals was carried
out to ascertain whether the State is conferred with more privileges than individuals
particularly by the Law of Limitation Act[Cap. 89 R.E. 2002]. This study focused on the
limitation period available to institute suits between the State and individuals.
Many authors have written about equality before the law and most of them have touched
the aspect of special privileges accorded to the State but little has been written about the
unequal treatment between the State and individuals which is considered to violate the
principle of equality before the law. The State is given a longer period of limitation to institute
suits in the court while individuals faced with the same situation are given much lesser period
as opposed to the State. Futhermore, the powers of Minister to grant extension of time to
institute suits after expiration of the stipulated period of limitation by the law is considered as
violating the doctrine of separation of powers.
This research which was conducted through reviewing various literatures, legislations,
case laws and field research has come up with the findings which has proved that the Law of
Limitation Act violates the principle of equality before the law. Although it is right to confer
special treatment to the State due to the nature of its functions, still it is the violation of the
principle of equality before the law. Moreover, the powers of the Minister to grant extension
of time to institute suits after the expiration of the stipulated time by the law is a violation of
the doctrine of separation of powers. The Minister who is an executive, should not be
permitted to exercise the functions of the judiciary.
Finally, the researcher has come up with some recommendations to the Law Reform
Commission, the Legislature and the Judiciary.

vii
LIST OF LEGAL INSTRUMENTS
International Instruments:
International Covenant on Civil and Political Rights, 1966( UNTC No. 14668).
Universal Declaration of Human Rights, 1948, Resolution 217 A (III), ( U.N. Doc. A/810).
Regional Instruments:
African Charter on Human and People‟s Rights of 1981, [UNTS Volume No. 1520].
African Charter on the Rights and Welfare of the Child,1990[OAU Doc.CAB/LEG/24.9/49].
Constitutive Act of the African Union of 2000, [UNTS Volume No. 2158 (p.3)].
Organisation of African Unity Charter of 1963,[UNTS Volume No. 479 (p.39)].
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in
Africa of 2003, [OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III).
Domestic Instruments:
Constitution:
The Constitution of the United Republic of Tanzania, 1977[Cap.2 R.E 2005].(As amended
from time to time).
Statutes:
Employment and Labour Relations Act, No. 4 of 2004 [Cap. 366 R.E. 2007].
Judicature and Application of Laws Act, 1961[Cap.358 R.E 2002].
Land Act, 1999[Cap.113 R.E. 2002].
Law Reform Commission of Tanzania Act, 1980[Cap.171 R.E 2002].
Natural Wealth and Resources (Permanent Sovereignty) Act, 2017.
Persons with Disabilities Act, No. 9 of 2010.
Tanganyika Order in Council, 1920.
The Courts (Land Disputes Settlement) Act, No. 2 of 2002.

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The Government Proceedings Act, 1967[Cap.5 R.E. 2002].
The Law of Limitation Act, 1971[Cap.89 R.E. 2002].
The Law of the Child Act, No. 21 of 2009.
The Local Government (District Authorities) Act, 1982 [Cap. 287 R.E. 2002].
The Local Government (Urban Authorities) Act, 1982[Cap. 288 R.E. 2002].
Foreign Instruments:
The Crown Proceedings Act, 1947 of England.

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LIST OF CASES
Cases from India:
Re Special Courts Bill, 1978, AIR 1979 SC 478
Cases from England:
Russel v. Men of Devon, (1778) 2 T.R 667
Cases from United States of America:
Barr v. Matteo, 360 U.S. 564(1959)
Howard v. Lyons,360 U.S. 593(1959)
Lehnhausen v. Lake Shore Auto Parts Co, 410 U.S. 356 (1973)
Marbury v. Madison, 5 U.S. (1Cranch) 137,163(1803)
Romer v. Evans, 517 U.S. 620 (1996)
United States v. Thompson, 98 U.S. 486 (1878)
YickWov. Hopkins, 118 U.S. 356 (1886)
Cases from Tanzania:
DPP v. Prosper Mwalukasa [2003] TLR 34

Haji Shomari v. Zainabu Rajabu, Civil Appeal No. 91 of 2001, Court of Appeal at Dar es
Salaam (Unreported)
J.D. Shirima v. Aidan Ndunguru, Civil Appeal No. 108 of 2004, High Court at Dar es Salaam
(Unreported)
Jackson Ole Nemeteni@ Ole Saibul @ Mdosi @ Mjombamjomba & 19 Others v. The
Attorney General, Miscellaneous Civil Cause No. 117 of 2004, The High Court of Tanzania
(Unreported)
Kukutia Ole Pumpun and Another v. Attorney General and Another [1993] TLR 159 (CA)
Malekela Mahita v. Kibuwi Nzengwa [1989] TLR 113 (HC)
Mwalimu John Paul Mhozya v. Attorney General (No.1) [1996] TLR 130 (HC)
x
National Housing Corporation v. Lindi Town Council and Another, Land Case no. 14 of
2005, High Court of Tanzania (Land Division) at Mtwara( Unreported)
Peter Ng’omango v. Gerson M.K Mwangwa and Another [1993] TLR 77 (HC)
Petro Haule v. Flora M’mbungu, Civil Appeal No. 155 of 2004, High Court at Dar es Salaam
(Unreported)
Seleman Mohamed Mtoni v. Minister of Justice and Attorney General, Miscellaneous Civil
Application No.2 of 2002, The High Court of Tanzania at Dar es Salaam (Unreported)
Tanga Cement Co. Ltd. v. Christopherson Co. Ltd, Civil Appeal No. 133 of 2006, Court of
Appeal of Tanzania at Arusha (Unreported)
Tanzania Red Cross Society v. Dar es Salaam City Council & 3 Others, Commercial Case
No. 53 of 2005, High Court of Tanzania at Dar es Salaam (Unreported)
Yusuf Same and Another v. Hadija Yusufu[1996] TLR 347

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ABBREVIATIONS
AU African Union
Doc. Document
ICCPR International Covenant on Civil and Political Rights
JALA Judicature and Application of Laws Act
OAU Organisation of African Unity
TOC Tanganyika Order in Council
UDHR Universal Declaration of Human Rights
UN United Nations
UNTC United Nations Treaty Collections
UNTS United Nations Treaty Series

xii
TABLE OF CONTENTS
Certification ........................................................................................................................ i
Declaration ......................................................................................................................... ii
Copyright .......................................................................................................................... iii
Acknowledgements ........................................................................................................... iv
Dedication .......................................................................................................................... v
Abstract ............................................................................................................................. vi
List of legal instruments ................................................................................................... vii
List of cases ....................................................................................................................... ix
Abbreviations .................................................................................................................... xi
Table of contents .............................................................................................................. xii
Chapter One: General Introduction .................................................................................... 1
1 .1 Introduction ............................................................................................................. 1
1.2 Background of the Problem .................................................................................... 1
1.3 Statement of the Problem ........................................................................................ 3
1.4 Literature Review .................................................................................................... 4
1.5 Hypothesis ................................................................................................................ 7
1.6 Objectives of the Research ...................................................................................... 7
1.6.1 Main Objective...................................................................................................... 7
1.6.2 Specific Objectives ............................................................................................... 7

xiii
1.8 Research Methodology ........................................................................................... 8
1.8.1 Research Design .............................................................................................. 8
1.8.2 Sampling and Sample Design ........................................................................... 8
1.8.3 Primary Sources ................................................................................................ 9
1.8.4 Secondary Sources ............................................................................................ 9
1.8.5 Data Collection Methods ...................................................................................... 9
1.8.6 Data Interpretation .......................................................................................... 10
1.9 Scope of the Research ........................................................................................... 10
1.10 Limitation ............................................................................................................ 10
1.11 Conclusion ........................................................................................................... 10
Chapter Two: Conceptual Framework on Equality Before the Law and State Sovereignty
.......................................................................................................................................... 11
2.1 Introduction ............................................................................................................ 11
2.2 Equality Before the Law ........................................................................................ 11
2.3 Tests to Ascertain Equality Before the Law .......................................................... 14
2.4 State Sovereignty ................................................................................................... 16
2.4.1 External Sovereignty ....................................................................................... 17
2.4.2 Internal Sovereignty ........................................................................................ 18
2.4.3 State Immunity ................................................................................................ 19
2.4 Conclusion ............................................................................................................. 22
Chapter Three: Legal Framework on the Equality Before the Law ................................. 23
3.1 Introduction ............................................................................................................ 23

xiv
3.2 International Instruments ...................................................................................... 23
3.2.1 The Universal Declaration of Human Rights .................................................. 23
3.2.2 International Covenant on Civil and Political Rights, 1966. .......................... 24
3.3 Regional Instruments ............................................................................................ 25
3.3.1 African Charter on People‟s and Human Rights ............................................ 25
3.4 Domestic Legal Framework on the Equality Before the Law ............................... 27
3.4.1 The Constitution of the United Republic of Tanzania, 1977. ......................... 27
3.4.2 Other Laws Which Imply Equality Before the Law ....................................... 28
Chapter Four: Critical Analysis on Equality Before the Law Between the State and
Individuals ........................................................................................................................ 30
4.1 Introduction ............................................................................................................ 30
4.2 Special Privileges to the State ................................................................................ 30
4.3 Extension of Time by the Minister ........................................................................ 35
4.4 Rationale for Conferring Special Treatment to the Government ........................... 39
4.5 Effect of Conferring Special Treatment to the Government .................................. 43
4.6 Field Research Report ............................................................................................ 44
4.7 Data Analysis and Interpretation............................................................................ 45
4.7.1 Interpretation of Primary and Secondary Sources .......................................... 45
4.7.2 Interpretation of Primary Data ........................................................................ 46
4.8 Conclusion ............................................................................................................. 47
Chapter Five: Recommendations and Conclusion ........................................................... 48
5.1 Introduction ............................................................................................................ 48

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5.2 Summary of Research Findings ............................................................................. 48
5.3 Recommendations .................................................................................................. 50
5.3.1 Recommendations to the Legislature .............................................................. 50
5.3.2 Recommendations to the Law Reform Commission ...................................... 51
5.3.3 Recommendations to the Judiciary ................................................................. 52
5.4 Conclusion ............................................................................................................. 52
Appendix ...................................................................................................................... 53
Bibliography .................................................................................................................... 55
1
CHAPTER ONE
GENERAL INTRODUCTION
1 .1 INTRODUCTION
This document is aimed at conducting a research on equality before the law between the
State and individuals by analysing the Law of Limitation Act [Cap. 89 R.E. 2002] on the
aspect of limitation of time in instituting legal action in the court. It will also take into
consideration the provision of Article 13(1) of the Constitution of the United Republic of
Tanzania, 1977. It will trace the history of the doctrine of nullum tempus occurrit regi which
give immunity to the State on legal action. This research will also go through the work of
various authors who have written literature on this subject matter by making a critical analysis
on the gap which these authors have failed to address on what is seen as unequal treatment
before the law between the State and individuals.
Lastly, it will try to see if there is a need to amend or repeal sections of Law of
Limitation Act which do not conform with the provision of the Constitution on the principle
of equality before the law.
1.2 BACKGROUND OF THE PROBLEM
Statutes of limitation have originated from the Common Law doctrine of nullum tempus
occurrit regi. This doctrine literally means that “no times runs against the King.”1 This has
been used to exempt the government from the effects of limitation of time; it is used by
1
US Law Network, “Nullum Tempus Compendium of Law” available at
https://web.uslaw.org/wp-content/.../08/Nullum_Tempus_Compendium_of_Law.pdf
2
government to bring suits for damages that would otherwise be barred by statutes of
limitation.2
This doctrine is also reflected in our laws.3 The government can bring an action to the
court even when the time has elapsed without been barred by the statute of limitation as
provided by section 38(c) of the Law of Limitation Act. Furthermore, Part I Item 23 of the
Schedule of the this Act4 provides that the limitation of time for suit by or on behalf of the
Government is sixty years.
Equality before the law is the constitutional principle which requires that all persons to
be treated equally before the law. The Constitution of the United Republic of Tanzania
provides that “All persons are equal before the law and are entitled, without any
discrimination, to protection and equality before the law”5 and that “No law enacted by any
authority in the United Republic shall make any provision that is discriminatory either of
itself or in its effect.”6 Equality before the law is one of the components of rule of law. The
rule of law requires that every person; including the government, to respect the laws of the
land and it is from this regard that no one is considered to be above the law.
In Tanzania, individuals cannot bring an action before the court if time has elapsed as
they are barred by the law.7 According to Part I of the Schedule to the Law of Limitation Act,
the maximum time which an individual can bring an action to the court is limited to twelve
years depending on the nature of claims.
The fact that an individual is barred from bringing an action before the court for lapse of
time while the same law allows the government to bring an action before the court or where
2
United States v. Thompson ,98 U.S. 486(1878)
3
The Law of Limitation Act [Cap.89 R.E. 2002], hereon under.
4
Idem.
5
Article 13(1) of the Constitution of the United Republic of Tanzania, 1977.
6
Ibid, Article 13(2).
7
Supra, note 3, section 3(1).
3
the government is given much longer time than an individual8 this is discrimination and
against the principle of equality before the law.
1.3 STATEMENT OF THE PROBLEM
In Tanzania, rights of individuals are protected by the Constitution.9 Among the rights
which are protected is the right to equality before the law. No law which is discriminative in
itself or in its effects that is allowed to be enacted in Tanzania.10 All litigations are governed
by The Law of Limitation Act in respect of length of time that should be observed in taking
an action before the court. If the suit is time barred then it will be rejected by court depending
on the nature of the claim. This law is applicable to both the individuals and to the
Government as per section 45 of the Law of Limitation Act.
Individuals are barred from instituting suits in courts after the expiration of time
prescribed by the Law of Limitation Act and the maximum period of time prescribed to
institute suits is twelve years depending on the nature of the claim. Practical examples can be
seen in various decided cases where claims were dismissed by courts for been time barred.
One of these cases is the case of Yusuf Same and Another v. Hadija Yusufu11where in appeal
the High Court ruled out that when the respondent filed an action for recovery of land was
already time barred. Basing on the provision of section 3(1) of the Law of Limitation Act, the
court observed that:
“…the present case respondent's right of action accrued from 14 January

1979 when the deceased died. The computation of this period still begins
from that date despite the fact that respondent was granted letters of
administration on 25 February 1992, that is about 12 years after death of the
deceased. In fact what actually happened is that by the time when respondent
was granted the letters of administration her cause of action had already been
time barred.”12
8
Item 23 of Part I of the Schedule to Law of Limitation Act.
9
The Constitution of the United Republic of Tanzania, 1977.
10
11
[1996] TLR 347.
12
Ibid, 350.
4
On the contrary, the Government is not time barred to institute a suit as per section 38(c)
of the Law of Limitation Act. In National Housing Corporation v. Lindi Town Council
andAnother,13the plaintiff who is the corporation wholly owned by the Government, filled an
application to recover land from defendants. Defendants argued that the application was time
barred but the plaintiff relied on the provision of section 38(c) of the Law of Limitation Act
claiming to be part of the government and therefore not barred by limitation of time. The
court ruled that plaintiff is not the „Government‟ as it does not fall within the meaning of
„Government‟ thus the above mentioned section of Law of Limitation does not apply to it.
From the case of National Housing Corporation v. Lindi Town Council, it is evident that
if the plaintiff did fall within the meaning of „Government‟, then the application would be
allowed as time would not be a bar to it. However, the Government is also time barred to
institute a suit before the court but it is given much longer period of time, the maximum of
sixty years as per Item 23 of Part I of the Schedule to Law of Limitation Act.
Considering the fact that there is unequal treatment between the Government and
individuals under the Law of Limitation Act, there is a violation of the right to equality before
the law as enshrined in our Constitution. This research has investigated this legal problem and
came up with findings on the extent of violation of the right to equality before the law.
1.4 LITERATURE REVIEW
The researcher went through various literatures about equality before the law so as to
deduce whether the issue of unequal treatment between the State and individuals has been
covered. It was observed that although many authors have written much on the question of
equality before the law and the presence of laws which favours or gives more privileges to the
State still they have not taken more efforts to address the extent to which this unequal
13
Land Case no. 14 of 2005, High Court of Tanzania (Land Division) at Mtwara( Unreported).
5
treatment between the State and individuals violates the principle of equality before the law.
Hereunder are some of the authors who have written about equality before the law.
Kijo-Bisimba & Peter in their book14 argue that, the law should not give unnecessary
privileges to the state and its organs as this could make the State to abandon its duty of acting
within the law. The positive effect of these authors is that they have been able to demonstrate
that this unnecessary privileges to the state and its organs might cause rights of individual to
be at stake and without redress where the State acts ultra vires. However, authors did not go
further to highlight how far these unnecessary privileges to the State and its organs violate the
principle of equality before the law. The researcher was able to cover this gap by
demonstrating how these privileges violate the principle of equality before the law.
Mvungi15 in one of his chapter in the book was of the views that, although Article 13(1)
of The Union Constitution provides for the right of equality before the law, there are some
laws which give special rights and treatment to the State and its agencies. Although he was
able to show that there are some statutes which give special rights and treatment to the State
by giving an example of Government Proceedings Act,16 he only pointed out the requirement
to give three months‟ notice to the Attorney-General before instituting a matter against the
state or any public body but he did not go far to show how this special treatment violates the
right to equality before the law. This research was able to cover this gap by showing how
these special rights and treatment to the State and its agencies violate the principle of equality
before the law.
Barnett17was able to observe that, for the rule of law to be respected and applied, the
legal process which include both civil and criminal processes, should exhibit accessibility and
14
H.Kijo-Bisimba&C.M.Peter, Justice and Rule of Law in Tanzania: Selected Judgments and Writings of
Justice James L. Mwalusanya and Commentaries, LHRC 2005, 379.
15
S.Mvungi, “Constitutional Development in Tanzania in 2002” in F.W. Jjuuko (ed.), Constitutionalism in East
Africa: Progress, Challenges and Prospects in 2002, Foutain Publishers, Kampala 2005, 77.
16
[Cap. 5 R.E. 2002]
17
H. Barnett, Constitutional and Administrative Law, Cavendish Publishing, London 20045, 63.
6
procedural fairness. However, there is a gap where the author did not endeavor to explain
under what circumstances will lack of accessibility and procedural fairness amount to
violation of the principle of equality before the law. The researcher was able to cover this gap
by showing how lack of procedural fairness violate the principle of equality before the law
especially where the Minister is given power to grant extension of time of limitation to
institute suits in the court.
Harlow & Rawlings18 explain that the principle of equality before the law remains the
constitutional underpinning for systems of government liability throughout the common law
world. They are of the view that, in practice, the equality principle was always less clear cut
than Dicey suggested as public authorities come equipped with a battery of statutory powers
to authorise their many incursions, which makes it hard to equate them with private actors
who do not possess such powers. Authors have left a gap by failing to make effort to show
how these statutory powers conferred upon a State violate the principle of equality before the
law. This gap was covered by the researcher where he managed to show how these statutory
powers conferred upon a State violate the principle of equality before the law.
US Law Network19 elaborates the reasons for embracing the doctrine of nullum tempus
which says the State is not bound by a statute of limitation unless the statute expressly
mentions the State by name. Furthermore, the author has managed to demonstrate how this
doctrine is justified on the public policy grounds that public remedies ought not to be lost by
the failures of public officers to seek timely relief, as they are burdened with serving the
public.
However, the author left a gap where he failed to observe that even though the doctrine
of nullum tempus is justified on the ground of public policy, still there is violation of the
principle of the equality before the law. The researcher has managed to address this gap by
18
C.Harlow& R. Rawlings, Law and Administration, Cambridge University Press, New York 2009 3, 748-752.
19
Supra, note 1.
7
demonstrating how public policy basing on the doctrine of nullum tempus violates the
principle of equality before the law.
1.5 HYPOTHESIS
The Law of Limitation Act [Cap.89 R.E. 2002] seems to violate the principle of equality
before the law by providing different limitation of time between the State and individuals.
1.6 OBJECTIVES OF THE RESEARCH
This research has various objectives which are explained in the next part.
1.6.1 MAIN OBJECTIVE
To investigate and demonstrate how the Law of Limitation Act [Cap.89 R.E.2002]
violates the principle of equality before the law.
1.6.2 SPECIFIC OBJECTIVES
The specific objectives of this research are:
 To investigate in depth the background of the problem which seems to exist in the
question of equality between the State and individuals.
 To examine and analyse the meanings of the main concepts relating to equality
before the law.
 To critically analyse the legal framework examining in depth how equality
before the law applies to the State and individuals.
 To interpret primary data and secondary data and consolidate the findings into
recommendations which will help the Legislature, Judiciary and Law Reform
Commission.
8
1.7 SIGNIFICANCE OF THE RESEARCH
To teach others on the concept of equality before the law between the State and
individuals since other scholars did not touch much on this aspect. The research intends to
create awareness to the law makers and other stakeholders to contribute their views and
expertise towards the review of the Law of Limitation Act. This research will also be an
informative tool to the Law Reform Commission to review and make reform this Law so as to
meet the requirement of the principle of equality before the law.
1.8 RESEARCH METHODOLOGY
This research used non-doctrinal research methodology. It looked on how our legal
system has addressed the issue of equality before the law between State and individuals on the
concept of limitation of time to take an action to the court. It also collected views and
suggestions from various legal professionals on the issues of extension of time by the
Minister. Also it collected their opinions as whether they see the Law of Limitation Act as
conferring unequal treatment between the State and individuals.
1.8.1 RESEARCH DESIGN
This research required primary data together with primary and secondary sources which
were vital to the completion of this research.
1.8.2 SAMPLING AND SAMPLE DESIGN
The researcher used a non random sampling type with sample size of 12 persons from the
Judiciary, Attorney General Chamber and Advocates within Iringa Municipality. This
categorisation of interviewees was chosen purposely due to the fact that, they are most
knowledgeable in law and its daily application.This was conducted by filling in of
questionnaires.
9
1.8.3 PRIMARY SOURCES
It used the Constitution of the United Republic of Tanzania, the Law of Limitation Act
and other laws as primary sources.
1.8.4 SECONDARY SOURCES
It will also use secondary sources of data which will include text books, journals, thesis
of other researchers and the internet sources.
1.8.5 DATA COLLECTION METHODS
This research was designed to use both primary and secondary data collection methods.
Primary data was obtained by visiting various legal professionals in Iringa who were
requested to fill the questionnaires. The researcher opted for questionnaires because it is the
easiest way of collecting data and non time consuming. The questionnaires contained closed
ended questions where answers were designed to be YES or NO.The researcher visited the
High Court of Tanzania; Iringa Registry and the Resident Magistrate‟s court of Iringa at
Iringa. He also visited the office of State Attorney Incharge at Iringa and various advocates
stationed at Iringa.
The researcher also made use of library facilities at Ruaha Catholic University and
Iringa Regional library. Furthermore, the researcher visited various internet sources to access,
collect and utilize informations which were beneficial to this research. Some of the websites
visited includes UN and AU websites to access various Treaties and Instruments. It involved
also the use of various legislations and decided cases from various jurisdictions as primary
sources. The researcher also used various text books and articles from various legal scholars
as secondary sources.
10
1.8.6 DATA INTERPRETATION
Some quantitative analysis was used with regard to primary data analysis. However, most
data was interpreted qualitatively through the analysis of laws and cases and the examination
of concepts and meanings of legal principles.
1.9 SCOPE OF THE RESEARCH
The scope of this research was limited to the limitation of time as provided in sections
3(1), 38(c) and 44 together with Item 23 of Part I of the Schedule to the Law of Limitation
Act [Cap. 89 R.E. 2002] in Tanzania Mainland; and the equality before the law as provided by
Article 13(1) & (2) of the Constitution of the United Republic of Tanzania, 1977.
1.10 LIMITATION
Several limitations were encountered in the course of this research. The main constraint
was the availability of adequate reference books in our university library. However, this
constraint was solved by the use of other sources including the regional library located within
Iringa Municipality.
1.11 CONCLUSION
In this chapter we were able to see the structure in which this research was based;
including the background of the problem, statement of the problem and literature view where
various text books and journals from various authors were examined to investigate how they
have the problem of unequal treatment between the State and individuals. Furthermore, this
chapter was able to highlight on the methodology used to conduct this research. These enables
us now to go to the next chapter which is on the conceptual framework on equality before the
law and State sovereignty.

11
CHAPTER TWO
CONCEPTUAL FRAMEWORK ON EQUALITY BEFORE THE LAW
AND STATE SOVEREIGNTY
2.1 INTRODUCTION
This part contains the conceptual framework on the equality before the law and State
sovereignty, its meaning and applicability. Under State sovereignty, it will focus on the
external and internal sovereignty and the concept of State immunity. Also, it will give the
meaning of equal protection of the law and its applicability in different jurisdictions together
with the circumstances under which the State is allowed to apply or abandon these principles.
2.2 EQUALITY BEFORE THE LAW
The term “equality” itself literally means the state of being equal. Equality entails the
state of being equal, especially in status, rights, or opportunities.20 Equality before the law
according to Black‟s Law Dictionary, it has three meanings where one of them connotes “the
declarations that all are equal before the law,… is that State and individual before the law
should be equal.”21
When we talk of equality, it does not mean that individuals or entities should be identical
but signifies a situation where a class of different persons or circumstances that have the same
qualities in at least one respect, but not all respects.22 Equality calls for equal treatment
between individuals or natural persons and entities or juridical persons. Juridical persons
include also government and its agencies. Natural persons and juridical persons are all
20
https://en.oxforddictionaries.com/definition/equality , accessed 09 December 2017.
21
B. A. Garner (ed.), Black’s Law Dictionary, Thomson Reuters, 20048, 1626.
22
https://plato.stanford.edu/entries/equality/#DefCon, accessed 09 December 2017.
12
„persons‟ who have legal obligations and rights.23 Persons can also be defined as “any being
capable of having powers and duties.”24
Equality before the law is one of the components of rule of law as propounded by A.V.
Dicey.25 It requires that all persons to be treated the same before the law. According to Dicey,
equality before the law requires that all classes of persons to be subjected to the ordinary law
of the land administered by the ordinary courts.26 The principle of equality before the law is
not meant for private persons only but also it involves even the government and its employees
or Agencies; when a public officer commits tort he will be liable for it in the normal civil
courts.27 It is not supposed to exempt certain category of persons from the duty to abide to the
laws that govern other persons or from being subjected to the jurisdictions of ordinary courts
or tribunals.28
Jennings29 when writing about what equality before the law is; he observed that, the
notion does not mean that the same laws should apply to all persons in the same State but
persons of the same category should be subjected to the same laws and treated in the same
way. He wrote:
“The notion is really much more limited. It assumes that among equals the
law should be equal and should be equally administered, that the like should
be treated alike. The right to sue and be sued, to prosecute and to be
prosecuted for the same kind of action should be same for all citizens of full
age and understanding without distinctions of race, religion, wealth, social
status or political influence.”
23
E.A.Quintana Adriano, “The Natural Person, Legal Entity or Juridical Person and Juridical Personality”, 4Penn
State Journal of Law & International Affairs,1(2015), 370.
24
Idem
25
M. L. Principe, “Albert Venn Dicey and the Principles of the Rule of Law: Is Justice Blind? A Comparative
Analysis of the United States and Great Britain”,22 Loyola of Los Angeles International and Comparative Law
Review 357 (2000),359.
26
Idem
27
W. I. Jennings, The Law and the Constitution, University of London Press Ltd, London 1943 3, 292.
28
A.V. Dicey, Introduction to the Study of the Law of the Constitution, Macmillan, Indiana 19158, 120.
29
Jennings, supra, note 27, 49.
13
Some courts have been upholding the above views as it was in Re Special Courts Bill,
1978.30 In this petition, the Government of India made a reference to The Supreme Court of
India to decide whether the proposed law to enact special courts would be unconstitutional.
This followed the arrest and investigation of persons holding high political and public offices
suspected to have committed crimes. The aim of the Bill was to create special courts for the
purpose of holding a speedy trial of these persons. The procedures for appointing judges to
preside over these special courts together with the whole purpose of creating them were
declared by the Supreme Court to be unfair, unjust and unreasonable due to the fact that “the
underlying principle of the guarantee of Article 14 was that all persons similarly
circumstanced should be treated alike both in privileges conferred and liabilities imposed.”31
The requirement to subject all classes of persons to the same law was stressed in the case
of Jackson Ole Nemeteni@ Ole Saibul @ Mdosi @ Mjombamjomba & 19 Others v. The
Attorney General32 where the High Court stated that, equality before the law “embraces not
only ordinary persons but also the Government and its officials, and all must be subjected to
the same rules.”
It must also be remembered that “equality before the law” goes together with the notion
of “equal protection before the law.” Equal protection before the law is aimed at imposing
upon the State a duty to supply protection to all persons in the enjoyment of their fundamental
rights.33 The State is required to govern impartially and without any unnecessary distinction
between persons falling under the same category.34
30
AIR 1979 SC 478.
31
“Right to Equality under Article 14 of Constitution” available at https://www.legalbites.in/law-notes
constitution-right-to-equality-under-article-14-of-constitution/#_ftnref10. Accessed 23 December 2017.
32
The High Court of Tanzania, Miscellaneous Civil Cause No. 117 of 2004 (Unreported)
33
J. Tussman& J. TenBroek, “The Equal Protection of the Laws,”California Law Review Vol.XXXVII, No.3
(1949), 341.
34
Legal Information Institute, available at https://www.law.cornell.edu/wex/equal_protection, accessed 25
December 2017.
14
According to Rajkhowa,35 equal protection of the law means:
“All persons in similarly circumstances shall be treated alike both in the

privileges conferred and the liabilities imposed by the laws. Equal law
should be applied to all in the same situation and there should be no
discrimination between one person and another. As regards the subject
matter of the legislation, their position is the same.”
The State can enact laws which give distinct protection of law to some category or group
of persons depending on the classification which the State creates due to the fact the
Constitution does not forbid states from treating different entities differently. 36 An example
can be drawn from the case of Lehnhausen v. Lake Shore Auto Parts Co.,37 where the
Supreme Court of United States of America permitted a state to tax personal property of
corporations without also taxing personal property of individuals. The law can be non-
discriminative on its face but in its administration, it manifests to be prejudicial. In Yick Wo v.
Hopkins38 the United States Supreme Court ruled that “the equal protection of the laws is a
pledge of the protection of equal laws.” From this case, the Court laid a rule that:
“A valid law that is applied in an arbitrary and discriminatory manner is

unconstitutional as a violation of the Equal Protection Clause.”39
2.3 TESTS TO ASCERTAIN EQUALITY BEFORE THE LAW
In order to decide whether a certain law is in conformity with the principle of equal
protection of the law, there are some tests that must be applied in order to reach to a positive
or negative conclusion. These tests have been used by courts for this purpose. 40 These tests
are as follows:
35
S.Rajkhowa, Constitutional Safeguards of Civil Servants, Shodhganga, Guwahati 1996, 208, available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/49120/14/14_chapter%205.pdf
36
Idem.
37
410 U.S. 356 (1973).
38
118 U.S. 356 (1886).
39
https://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-brest/race-and-the-equal-
protection-clause/yick-wo-v-hopkins/
40
L.M.Lapidus, et al.,The Rights of Women: The Authoritative ACLU Guide to Women’s Rights, New York
Univerity Press, New York 20094, 4.
15
The first test is the Rational Basis. This test simply refers to reasonableness. In order to
ascertain whether the enacted law is discriminatory, the court will ask itself two questions;
whether the State had reasonable grounds to enact the law, and whether there are some
difference between the two classes or groups of people that makes it reasonable to treat them
differently.41 In order for that law to be regarded as not discriminatory and therefore
legitimate, the answers to both questions must be to the affirmative. What the State needs to
prove here is that, there was a legitimate State purpose in enacting that law.42 In Romer v.
Evans,43 the issue was to determine whether the Equal Protection Clause in the American
Constitution prevents a state from adopting a constitutional amendment prohibiting any type
of governmental action designed to protect lesbians and gay men from discrimination. The
law was seen to lack legitimacy where the Court held that:
“A law that imposes such a broad legal disability on a single group, in this
case lesbians and gay men can serve no legitimate state purpose, and the law
was found to be invalid.”
The second test is Strict Scrutiny. This test was developed by the U.S. Supreme Court
and it is used upon laws that classify on the basis of race or national origins together with
those laws that affect fundamental rights.44 The court here must ask two questions; whether
the state have a compelling interest in passing the law, and whether the legal classification
absolutely necessary to accomplish that purpose. In this test, laws and policies will be put
under scrutiny.
The third test is Intermediate Scrutiny. In order for the law to pass this test, it must fulfill
two qualifications; that it must serve important government objectives, and it must be closely
and substantially related to the achievement of those objectives.45 This test was developed by
41
Idem.
42
Lapidus, supra, note 40.
43
517 U.S. 620 (1996).
44
Idem.
45
Idem.
16
the Supreme Court of United States of America and “is more demanding than the rational
basis test and more forgiving than strict scrutiny.”46
It should be noted that it is not possible for the equality between the State and
individuals to be equal in all respects since the government can interfere with the lives and
interests of its subjects without legal sanctions.47 This aspect will be dealt in depth in the next
part of this paper which will be on the concept of state sovereignty.
2.4 STATE SOVEREIGNTY
Sovereignty comes from the word “sovereign” which means a person, body, or State
vested with independent and supreme authority.48 It is also used to refer to the ruler of an
independent State.49 Therefore, in simple terms sovereignty refers to the independence. It is
used in connection with non-interference by external powers in the internal affairs of another
State.50
State sovereignty refers to the right of a State to self-government; the supreme authority
exercised by each State.51 In exercising its sovereign power, each State has the power to make
and enforce laws.52 The State can make any law as it deems fit without any interference from
outside or even from its subjects since sovereignty is a necessary and inalienable political and
legal property of any State. Sovereignty is understood in terms of governing competence, so it
has to be tied to the prescription, application, and enforcement of law.53
46
Idem.
47
C. Harlow & R. Rawlings, Law and Administration, Cambridge University Press, New York 2009 3, 16.
48
B. A. Garner (ed.), Black’s Law Dictionary, West Publishing Co., Minnesota 20099, 1523.
49
Idem.
50
A. De Benoist, “What is Sovereignty?”, a paper available at
http://www2.congreso.gob.pe/sicr/cendocbib/con2_uibd.nsf/A20317BBCECF9E1E0525770A00586F60/$FI
LE/what.pdf, 100.
51
Garner,supra, note 48, 1541.
52
Ibid, 1523.
53
W. P. Nagan& A.M. Haddad, “Sovereignty in Theory and Practice”, 13 San Diego Int'l L.J.(2012), 437.
17
2.4.1 EXTERNAL SOVEREIGNTY
When we talk about sovereignty, it must be understood that we are speaking of
sovereignty in international law and at domestic level. It has been noted by Nagan and
Haddad that sovereignty has an internal and an external dimension.54They argue that:
“Sovereignty has meanings and applications in such fields as international

relations, world politics, international law, and diplomacy. It may be that the
sovereignty of internal domestic imperium and sovereignty in the context of
international relations and world affairs represent very different conceptual
worlds.”
External sovereignty refers to the power of dealing on a nation's behalf with other
national governments.55 Every sovereign State has a right to deal with other States in the
international community without been interfered by any other State in their internal and
external affairs. “Every State is subject to no other authority and is independent of any
compulsion on the part of other States.”56 Being sovereign, every State is at liberty to
determine its foreign policy and choose which block it will side with.
External sovereignty is governed by United Nations Charter which is an instrument by
which members both assert and limit their sovereignty.57 At regional level particularly in the
African context, States sovereignty is provided in the OAU Charter.58 Member States are
governed with the principle of the sovereign equality of all member States, non-interference
in the internal affairs of States, and respect for the sovereignty and territorial integrity of each
State and for its inalienable right to independent existence.59 OAU Charter was later replaced
by The Constitutive Act of the AU.60 One of the objectives of the AU is to defend the
54
Nagan& Haddad, supra, note 53, idem.
55
Garner, supra, note 48, 1524.
56
“Sovereignty: Meaning and Characteristics of Sovereignty”, available at
http://www.politicalsciencenotes.com/essay/sovereignty-meaning-and-characteristics-of-sovereignty/254,
accessed 12January 2018.
57
Nagan& Haddad, supra, note 53, 459.
58
Organisation of African Unity, 1963.
59
Ibid, Article III
60
Constitutive Act of the African Union, 2000.
18
sovereignty, territorial integrity and independence of its member States.61 Also, AU operates
under the principle of sovereign equality and interdependence among member States.62
2.4.2 INTERNAL SOVEREIGNTY
Internal Sovereignty means some persons, assembly of group of persons in every
independent State have the final legal authority to command and enforce obedience.63
According to Black‟s Law Dictionary, internal sovereignty means:
“The power enjoyed by a governmental entity of a sovereign state, including

affairs within its own territory and powers related to the exercise of external
64
sovereignty.”
For the sake of this research, internal sovereignty will be dealt with, particularly in law
making process. In most sovereign state, law making function is vested to the Parliament or
the legislature. The Parliament can make or unmake any law. Dicey has explained about the
Parliamentary sovereignty in the following words:65
“The principle, therefore, of parliamentary sovereignty means neither more

nor less than this, namely that "Parliament" has the right to make or unmake
any law whatever; and further, that no person or body is recognized by the
law of England as having a right to override or set aside the legislation of
Parliament, and further that this right or power of Parliament extends to
every part of the King's dominions.”
As stated earlier, the State through the Parliament is at liberty to enact any law on any
matter as it deems fit depending on the circumstances giving rise or prompts it to make such
enactment. It can enact laws which recognize and defend fundamental rights of its subjects or
it can also enact laws which do not recognize these rights. It can enact discriminatory laws
between individuals themselves or between the State and individuals.
61
Ibid, Article 3(b).
62
Ibid, Article 4(a).
63
Supra, note 57, idem.
64
Garner,supra, note 55, 1524.
65
Dicey, supra, note 28, xxxvi
19
2.4.3 STATE IMMUNITY
The Latin maxim known as rex non potest peccare66 which means the “King can do no
wrong” is the essence of State immunity. It is a Common law principle which was applied in
England where no individual could bring any suit against the Crown or its servants for any
action arising in the due course of their daily functions. This maxim had two reasons; that the
Crown or its agents cannot be sued, and that the Crown cannot be sued in its own courts
without its consent.67 Before thirteenth century, no subject in England could bring a suit
against the Crown in England until when King Edward I introduced the procedures for laying
suits against the Crown through a petition of right.68 This petition of right was available for
proprietary rights including the recovery of land and chattel. If the petition was refused, then
the petitioner had no other remedy.69 However, changes were seen in England through the
Crown Proceedings Act, 1947 which abolished the procedure of petition of rights and made it
possible for the government to be sued in all civil wrongs.70 Under this Act,71 any person who
wanted to sue the government had to obtain His Majesty‟s fiat. It provided:
“Where any person has a claim against the Crown after the commencement
of this Act, and, if this Act had not been passed, the claim might have been
enforced, subject to the grant of His Majesty‟s fiat, by petition of right, or
might have been enforced by a proceeding provided by any statutory
provision repealed by this Act, then, subject to the provisions of this Act, the
claim may be enforced as of right, and without the fiat of His Majesty, by
proceedings taken against the Crown for that purpose in accordance with the
provisions of this Act.”72
The essence of the above procedures implies that Government or the Crown was not
ready to be subjected to its own laws and court procedures until when it decided to soften the
66
Garner, supra, note 55, 1870.
67
68
H. Street, Governmental Liability: A Comparative Study, Issue 4,Cambridge University Press, Cambridge
1953, 1.
69
Idem
70
“Government Proceedings in Tanzania and England” available at
http://shilingiyetu.blogspot.com/2017/11/government-proceedings-in-tanzania-and.html, accessed 12 January
2018
71
The Crown Proceedings Act, 1947.
72
Ibid, section 1.
20
procedures by allowing individuals to sue it subject to its own consent. The doctrine of rex
non potest peccare was also extended to local governments (Counties) in the case of Russel v.
Men of Devon73 which was decided in 1788. In this case, the plaintiff sought to recover
damages for an injury due to the non-repair of a bridge in which the county was under
statutory obligation to keep up. It was held that the county was only quasi corporation and had
no fund or means of answering in damages and therefore was immune to such an action and
only subject to indictment for failure to perform its statutory duty.
Tanzania inherited the Common law legal system where most of its laws were imported
from England and India through section 17(1) of TOC74 and section 3 of JALA.75 Whenever
a person wished to sue the Government had to obtain a ministerial consent; a permission to
sue the government, according to section 6 of Government Proceedings Act, 1967 as amended
by Act No. 40 of 1974. The constitutionality of this requirement to obtain a ministerial fiat
was successfully challenged in the court in Kukutia Ole Pumpun and Another v. Attorney
General and Another.76 In this case, the appellants sought to sue the Government and applied
for the Minister's consent to sue the Government as required by section 6 of the Government
Proceedings Act 1967 but they received no reply from the Minister. They decided to call upon
the High Court to decide on the constitutionality of that provision of the law; it was null and
void as it contravened the Constitution of the United Republic of Tanzania. The respondents
lodged with the Court a preliminary objection that the suit was incompetent for want of the
Minister's consent to sue the Government. The High Court dismissed the suit and ruled that
section 6 of Government Proceeding Act, 1967 was not unconstitutional.
Upon appeal to the Court of Appeal, it was ruled that Section 6 of the Government
Proceedings Act, 1967, as amended by section 6 of Act No. 40 of 1974 is unconstitutional
73
(1778) 2 T.R 667
74
Tanganyika Order in Council, 1920.
75
Judicature and Application of Laws Act [Cap. 358 R.E 2002]
76
[1993] TLR 159 (CA)
21
because it violates the basic human right, guaranteed under Articles 13(3) and 30(3) of the
Constitution, of unimpeded access to the Court to have one's grievances heard and determined
there.
In Peter Ng’omango v.Gerson M.K Mwangwa and Another77 the applicant sued the first
respondent for defamation and malicious prosecution. Since the first respondent was the
Principal of Mpwapwa Teachers‟ College, applied through Third Party Notice, the Attorney
General to be joined. Soon after the Attorney was joined in the suit, he raised a preliminary
objection that the suit was incompetent since the applicant did not secure ministerial consent
to sue the Government as required by section 6 of the Government Proceeding Act, 1967. In
the final analysis of the case, Mwalusanya, J. (as he then was), ruled that:
“The Constitution recognizes the right of an individual to have a free access

to the Courts for a remedy; Section 6 of the Government Proceedings Act,
1967 which requires a ministerial fiat in order to sue the government
infringes the constitutional right free access to the courts for a remedy; and
that the Act was not in public interest, therefore unconstitutional and void.”
The decisions in these two cases prompted the government through the Parliament to
make amendments in section 6 of Government Proceeding Act, 196778 through Act No. 30 of
1994. The amendment was to the effect that it is now required to give a ninety days‟ notice if
you want to sue the Central Government.79 Also if you want to sue the Urban Authorities,80 it
is mandatory to give a one month notice of intention to sue the authority. 81 The same applies
to District Authorities82 where a one month notice must be given to the authority to be sued.83
77
[1993] TLR 77 (HC)
78
The Government Proceedings Act [Cap.5 R.E. 2002]
79
Ibid, section 6(2)
80
The Local Government ( Urban Authorities) Act, [Cap. 288 R.E. 2002]
81
Ibid, section 106(1)
82
The Local Government ( District Authorities) Act, [Cap. 287 R.E. 2002]
83
Ibid, section 190(1)
22
2.4 CONCLUSION
It has been observed that the concept of equality before the law is an old and fundamental
principle in realization and enforcement of fundamental human rights. It requires that all
classes of persons, including the Government and its agencies, to be treated the same under
the same laws with equal protection. However, it has been observed that Governments are
sovereignty entities having both external and internal sovereignty; no State has a right to
interfere with another State‟s affairs. Furthermore, we have observed that the internal
sovereignty confers immunity to the State to perform its duties without being subjected to
some laws or court proceedings under the doctrine of rex non potest peccare.
The immunity conferred upon the State in the early years was to the effect that no one
could bring any civil suit against the State for damages. Later on, the Government allowed
individuals to sue it subject to its consent. This position has now changed where individuals
can sue the Government upon serving it with a notice of intention to sue. All these shows that
the Government is adamant to be subjected to its own laws and courts, but due to recent
developments in human rights and good governance, the Government is now left with no
option than to allow its subjects to sue it.
After knowing various concepts regarding the principle of equality before the law as
seen in this Chapter, the researcher is now going to introduce the legal framework governing
the whole principle of equality before the law in the next chapter; that is Chapter Three. This
will cover international, regional and municipal instruments which provide on the equality
before the law.

23
CHAPTER THREE
LEGAL FRAMEWORK ON THE EQUALITY BEFORE THE LAW
3.1 INTRODUCTION
This chapter will focus on different legal instruments providing for equality before the
law in different levels; at international, regional and municipal level. It will also look on other
laws which imply equality before the law in Tanzania.
3.2 INTERNATIONAL INSTRUMENTS
Internationally, there are some instruments which protect the right of equality before the
law. These instruments are The Universal Declaration of Human Rights (UDHR) of 1948 and
International Covenant on Civil and Political Rights (ICCPR) of 1966. Both these two
instruments stresses about the equality between persons without any kind of discrimination.
3.2.1 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
This is the most essential and main document in the history of mankind concerned with
protection of fundamental human rights in the world which was adopted by United Nations84
after been proclaimed by the UN General Assembly on 10 December 1948.85 The right of
equality before the law is among the fundamental human rights enshrined in this Declaration86
where all the UN member States are obliged to respect them. It provides:
“All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to
such discrimination.”87
84
Resolution 217A(III)
85
http://www.un.org/en/universal-declaration-human-rights/
86
United Nations Declaration on Human Rights of 1948.
87
Ibid, Article 7.
24
It follows therefore that members States are under the obligation of enacting laws which
are not discriminatory; either directly or in its effects.
3.2.2 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966.
This Covenant88 was adopted by the General Assembly of the United Nations on 19
December 1966 and came into force on 23 March 1976. The aim of this Covenant was to
protect civil and political rights whereby equality before the law is among them. It
emphasizes on the equality to all persons without discrimination. It provides that:
“All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.”89
The right to equality before the law under this Covenant is not only on non-
discrimination and equal protection of the law but also on the equality before the courts and
tribunals.90 Paragraph 1(1) of the General Comment No.3291 provide that “right to equality
before the courts and tribunals and to a fair trial is a key element of human rights protection
and serves as a procedural means to safeguard the rule of law.”
In order to implement this Covenant, the UN has designated the Human Rights
Committee as a body of independent experts that monitors implementation of
the International Covenant on Civil and Political Rights by its State parties. State parties are
obliged to prepare and submit annual report to this Committee on how these rights are
implemented within their jurisdictions.92 ICCPR through the UNHRC‟s93 General Comment
88
International Covenant on Civil and Political Rights, 1966.
89
Ibid, Article 26.
90
91
UN Human Rights Committee (HRC), General Comment No.32 of July 2007.
92
United Nations Human Rights Office of the High Commissioner, available at
http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx. Accessed 01 February 2018
93
United Nations Human Rights Committee
25
No.32 has provided detailed explanations about the equality before the law and how State
parties are required to ensure its protection through various legislations and practices.
3.3 REGIONAL INSTRUMENTS
At regional level, there are various instruments on the promotion and protection of
fundamental human rights. In Africa, we have different instruments aimed at protection of the
right of equality before the law. Some of these instruments will be highlighted herein under.
3.3.1 AFRICAN CHARTER ON PEOPLE’S AND HUMAN RIGHTS
In Africa, we have African Charter on People‟s and Human Rights which is also known
as Banjul Charter;94 it was adopted on 27 June 1981 and entered into force on 21 October
1986.95 This Charter was a result of African heads of States and Governments who met in
Monrovia, Liberia, from 17 to 20 July 1979 during their Sixteenth Ordinary Session. The
main objective was to establish organs which will be responsible for the promotion and
protection of human and people‟s rights.96 On the right of equality before the law, Article 3
of the Charter provides that:97
“1.Every individual shall be equal before the law. 2. Every individual shall
be entitled to equal protection of the law.”
It can be seen that the question of equality before the law is not for the international
community only but also it is evident in the regional level as the African Charter on Human
and People‟s Rights.
3.3.2 AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD
This Charter98 which was adopted on 01st July 1990 and came into force on 29th
November 1999, recognizes the right of equality before the law of a child. It emphasizes that
94
http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf
95
OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)
96
Nagan&Haddad, supra, 437.
97
African Charter on Human and People‟s Rights.
98
African Charter on the Rights and Welfare of the Child, 1990.
26
a child should not be discriminated in any aspect. Tanzania signed this Charter on 23rd
October 1998 and ratified it on 16th March 2003. It provide as follows:
“Every child shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in this Charter irrespective of the child‟s or
his/her parents‟ or legal guardians‟ race, ethnic group, colour, sex, language,
religion, political or other opinion, national and social origin, fortune, birth
or other status.”99
The principle of non-discrimination as provided by this Charter gives a child the right of
equality before the law due to the fact that a child is not supposed to be discriminated in
enjoyment of rights and freedoms conferred to him by the law.
3.3.3 PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS ON
THE RIGHTS OF WOMEN IN AFRICA
This Protocol100 is aimed at eliminating all forms of discriminations against women in
Africa and to promote the equality before the law between women and men. The Protocol was
adopted by the Second Ordinary Session of the Assembly of the African Union at Maputo on
11th July 2003. Tanzania signed it on 05th November 2003 and ratified it on 03rd March 2007.
It provides:101
1. “States Parties shall combat all forms of discrimination against women

through appropriate legislative, institutional and other measures. In this
regard they shall:
a) include in their national constitutions and other legislative instruments, if not
already done, the principle of equality between women and men and ensure
its effective application;
b) enact and effectively implement appropriate legislative or regulatory
measures, including those prohibiting and curbing all forms of
discrimination particularly those harmful practices which endanger the
health and general well-being of women;
c) …..
d) take corrective and positive action in those areas where discrimination
against women in law and in fact continues to exist;”
The right of equality before the law and non-discrimination of women as provided by this
instrument is protected and enforced through the African Commission on Human and
99
Ibid, Article 3.
100
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa,2003.
101
Ibid, Article 2.
27
People‟s Right. The General Comment No.2102 provides for detailed interpretation and
specific obligations to State parties to promote and implement this instrument. It requires
State parties to submit periodic report to the Commission on any measures taken to promote
and protect this right. These measures includes among others, any legislative measures taken
by State parties for this purpose.103
3.4 DOMESTIC LEGAL FRAMEWORK ON THE EQUALITY BEFORE THE LAW
In domestic or municipal level particularly in Tanzania, the fundamental human rights
including the right of equality before the law are protected by the supreme law of the State.
3.4.1 THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA, 1977.
This is the supreme law of the land in which all other laws are supposed to be enacted in
conformity with its provisions. The Constitution104 gives validity to all other laws, and any
law which violates or conflict with its provisions is void to the extent of its inconsistency.105
The right to equality before the law is one of those rights found under the Bill of Rights
in the Constitution which provides that:106
“13.-(1) All persons are equal before the law and are entitled, without any
discrimination, to protection and equality before the law.
(2) No law enacted by any authority in the United Republic shall make
any provision that is discriminatory either of itself or in its effect.”
The Parliament is not supposed to enact any law which is discriminatory in itself or in its
effect. If it happens that the Parliament has enacted a law which is discriminatory of itself or
of its effect, then the Court is empowered to give time to the Government to rectify the defect
102
African Commission adopted General Comment No. 2 on Article 14 (1) (a), (b), (c) and (f) and Article 14 (2)
(a) and (c) of the Protocol to the African Charter on Human and Peoples‟ Rights on the Rights of Women in
Africa at its 55th Ordinary Session held from 28 April – 12 May 2014 in Luanda, Angola.
103
African Commission of Human and People‟s Rights, available at http://www.achpr.org/instruments/general-
comment-two-rights-women/.Accessed 01 February 2018.
104
The Constitution of the United Republic of Tanzania, 1977. As amended from time to time.
105
Ibid, Article 64 (5).
106
Ibid, Article 13(1) & (2) .
28
in the law if it is satisfied that the law is inconsistent with the provisions of the Constitution as
provided under Article 30(5) of the Constitution of the United Republic of Tanzania.
3.4.2 OTHER LAWS WHICH IMPLY EQUALITY BEFORE THE LAW
In Tanzania, there are several laws which imply the equality before the law. Some of
these laws are briefly highlighted herein under.
A. The Law of the Child Act
This Act107 was enacted for the purpose of stipulating rights of the child and to promote,
protect and maintain the welfare of a child. It provides that a child shall have a right to live
free from any discrimination.108 It further provides that no person shall discriminate against a
child on the grounds of gender, race, age, religion, language, political opinion, disability,
health status, custom, ethnic origin, rural or urban background, birth, socio-economic status,
being a refugee or of other status.109
B. Persons with Disabilities Act
This Act110 was enacted for the purposes of promoting and protecting the rights of
persons with disabilities. Among these purposes includes employment or work protection and
promotion of basic rights for the persons with disabilities and to provide for related matters.
The Act has also stipulated governing principles, some of these includes respect for human
dignity, individual's freedom to make own choices and independency of persons with
disabilities.111 It also includes non-discrimination, full and effective participation and
inclusion of persons with disabilities in all aspects in the society together with equality of
107
The Law of the Child Act, No. 21 of 2009.
108
Ibid, section 5(1).
109
Ibid, section 5(2).
110
Persons with Disabilities Act, No. 9 of 2010.
111
Ibid, section 4(a).
29
opportunity.112 Others are equality between men and women with disabilities and recognition
of their rights and needs.113
C. Employment and Labour Relations Act, No. 4 of 2004 [Cap. 366 R.E. 2007]
This Act was enacted for the purposes of establishing basic employment standards and
other related matters. Part II of this Act provides for some fundamental rights and protections
which the employer must observe, and one of this rights is the right against discrimination of
any kind whatsoever. Under the provision of section 7(1), the employer is supposed to
“ensure that he promotes an equal opportunity in employment and strives to eliminate
discrimnination in the work place.”
Furthermore, for the purposes of ensuring equality between men and women, the
employer is obliged under section 7(10) of this Act to guarantee equal remuneration between
men and women for the work of equal value.
3.5 CONCLUSION
It can be seen that the concept of equality before the law is fundamentally wide and
acknowledged not only by international and regional instruments but also by our municipal
legal instruments. In order for every person to enjoy his fundamental rights, he has to be
guaranteed the right of equality before the law. He should not be discriminated basing on his
status, race, religion, gender, political inclinations or any other kinds of discrimination. This
also entails that, the Parliament is not supposed to enact laws which favours some class of
persons as opposed to other classes.
In this chapter, the researcher has endeavored to touch various legal instruments which
provide and protect the right of equality before the law, in the next chapter; which is Chapter
Four, the researcher is going to make a critical analysis of these laws in order to demonstrate
112
Ibid, section 4(b- d).
113
Ibid, section 4(f).
30
the ways in which the principle of equality before the law and separation of powers are
violated.
30
CHAPTER FOUR
CRITICAL ANALYSIS ON EQUALITY BEFORE THE LAW BETWEEN
THE STATE AND INDIVIDUALS
4.1 INTRODUCTION
This chapter analyses the main ways in which equality before the law is violated by
State towards individuals; through special privileges to the State and extension of time by the
Minister. The researcher is going to make a critical analysis on the equality before the law
with reference to the Law of Limitation Act. It will dwell on the question of special privileges
accorded to the State by law, the power of the Minister to extend time to file a case to the
court upon request from an individual after expiration of the stipulated time, and the rationale
behind conferring special treatment to the State.
4.2 SPECIAL PRIVILEGES TO THE STATE
Equality before the law requires that all persons, including the Government to be treated
equally without any discrimination of favour. The court, in various decisions has stressed on
this; suffice here to mention the case of Jackson Ole Nemeteni@ Ole Saibul @ Mdosi @
Mjombamjomba & 19 Others v. The Attorney General114 where it was clearly stated that,
equality before the law “embraces not only ordinary persons but also the Government and its
officials, and all must be subjected to the same rules.” The Constitution, being the supreme
law of the land, provides for the right of equality before the law.115 The right to equality
114
The High Court of Tanzania, Miscellaneous Civil Cause No. 117 of 2004 (Unreported)
115
Constitution of the United Republic of Tanzania, 1977
31
before the law is clothed in the wordings that “all persons are equal before the law and are
entitled, without any discrimination, to protection and equality before the law.”116
The Law of Limitation117 is among the law which is evidenced to have conferred special
treatment to the Government when the question of limitation of time arises. This special
treatment is derived from the doctrine of nullum tempus occurrit regi, which literally means
that no times runs against the King.118 Under this Common law doctrine, the Government is
never barred by statutes of limitation from bringing an action to the court. This doctrine is not
strictly applied in our laws due to the fact that the Law of Limitation applies to individuals as
well as to the Government as per section 45 of the Law of Limitation Act. The proceedings
brought to the court after expiration of prescribed time are not supposed to be entertained by
the court but are to be dismissed as required by section 3(1) of the Law of Limitation Act.
Although this Act applies to both the Government and individuals as seen above, the
limitation of time to bring an action to the court between the Government and individuals
differs. One could expect that since this Act applies to both the Government and private
persons, there could not be any distinction of time between them. According to Part I of the
Schedule to the Law of Limitation Act, the maximum time which an individual can bring an
action to the court is limited to twelve years depending on the nature of claims. At the same
time, the Government is given much longer time than an individual, the maximum time being
sixty (60) years as per item 23 of Part I of the Schedule.119 This unequal treatment and
protection of the law is against the spirit of the principle of equality before the law as seen in
the case of Jackson Ole Nemeteni.
The Government with its departments is the corporate entity with the capacity to sue and
be sued, also has the capacity to own properties. The proceedings by or against the
116
117
[Cap. 89 R.E. 2002]
118
US Law Network, “Nullum Tempus Compendium of Law” available at
https://web.uslaw.org/wp-content/.../08/Nullum_Tempus_Compendium_of_Law.pdf
119
Supra, note 117.
32
Government are governed by The Government Proceedings Act.120 The government “is
subject to all proceedings relating to liabilities in contract, quasi-contract, detinue, and tort
and in other respects to which it would be subject if it were a private person of full age and
capacity.”121 Thus, the Government ought not to be afforded much privilege as compared to
individuals in question of limitation of time to bring action to the court since they both have
the same status in the eyes of the law.
This unequal treatment and protection before the law has adverse repercussions to
individuals since they can lose their rights. There are plenty of cases where individuals have
lost their rights to bring an action to the court due to lapse of time. It follows therefore that if
the Government was faced with the same situation, it would not be time barred since the law
has given it a longer limitation of time. Some of these cases will be discussed herein.
The case of Yusuf Same and Another v. Hadija Yusufu122 was an appeal against a decision
of the Resident Magistrate court which had allowed the respondent's suit that she was the
owner of certain property and had awarded her certain damages. The property had belonged to
the respondent's husband who died in 1979. The deceased's sons sold the property to the two
purchasers who subsequently sold it to the appellants. The respondent applied for letters of
administration in August 1991 in respect of the deceased estate and these were granted in
February 1992. The Land Office cancelled the two previous registrations and transferred the
ownership to the respondent. At the trial the appellants had raised the question of limitation
but the magistrate struck out the defence on the ground that it had not been pleaded earlier.
On appeal it was ruled that by the time when respondent was granted the letters of
administration her cause of action had already been time barred, therefore the appeal was
allowed with costs and appellants declared the lawful owners.
120
[Cap. 5 R.E. 2002]
121
Ibid, section 3(1).
122
[1996] TLR 347.
33
In the above case, the respondent would have been given the ownership of the suit
property if the law could have put the longer limitation of time as that given to the
Government.
A suit to redeem land in possession of a mortgagee under customary law arrangement
which has similar effect and incidents as a mortgage was said to be time barred in the case of
Malekela Mahita v. Kibuwi Nzengwa.123 This was an appeal from the district court where he
also lost the case. In this case, the appellant wanted to redeem shamba which were mortgaged
by his uncle to the respondent‟s uncle. At that time the appellant was very young but at the
time of appeal he was 76 years old. The law provides that a suit to redeem land in possession
of a mortgagee must be brought within twelve years as prescribed under the First Schedule to
the Law of Limitation Act, Part I. The court dismissed the appeal basing on the provision of
section 3(1) of the Law of Limitation Act which provides:
“Subject to the provisions of this Act, very proceeding for which a period of
limitation has been provided in the First Schedule to the Act and which is
instituted after the prescribed period of limitation shall be dismissed whether
or not limitation has been set up as defence.”
In National Housing Corporation v. Lindi Town Council and Another, 124 the plaintiff, a
State corporation, filed an application to recover land from defendants. It was argued by the
defendants that the application was time barred but the plaintiff relied on the provision of
section 38(c) of the Law of Limitation Act, claiming to be part of the government and
therefore not barred by limitation of time. The court ruled that plaintiff is not the
„Government‟ as it does not fall within the meaning of “Government” thus the above
mentioned section of Law of Limitation does not apply to it.
123
[1989 ]TLR 113 (HC).
124
Land Case no. 14 of 2005, High Court of Tanzania (Land Division) at Mtwara( Unreported).
34
From the above case, it implies that if the plaintiff had a status of „Government‟ then it
will not be time barred to bring an action to the court for recovery of land. Section 38(c) of
the Law of Limitation Act provides:
“…no suit or other proceeding by or on behalf of the President or the

Government of the United Republic for the recovery of land shall be
dismissed on the ground that the period of limitation has expired.”
This provision is so wide due to the fact that „land‟ does not mean only the earth surface
but other things including buildings and other interests on land. In an ordinary meaning, land
means any ground, soil or earth.125 It also refers to real estate, any benefits arising out of land
and things attached to land.126 Legally speaking, land has a more broad meaning as it include
buildings or other structures affixed to land permanently. According to Land Disputes Courts
Act,127 land is defined as:
“…the surface of the earth and the earth below the surface and all substances
other than minerals and petroleum forming part of or below the surface,
things naturally growing on the land, buildings and other structures
permanently affixed to land.”128
The Government just like an individual, is capable of entering into contracts involving
land or make any transaction in connection with the land. When it comes to the issue of
limitation of time to institute legal action in the court, it is there when we come to realize that
the Law of Limitation has given some privileges to the Government as opposed to individuals.
The equality before the law requires that when the Government is dealing with individuals on
this basis, it should be subjected to same laws and the same treatment without any privilege or
favour.
Since the Government is allowed by law129 to rely upon any written law relating to the
limitation of time for bringing proceedings,130 the prudence requires that the law should
provide expressly what Government dealings should be governed by the law of limitation.
125
S.L.Salwan&U.Narang, Academic’s Legal Dictionary, Academic (India) Publishers, New Delhi 2013 23, 200.
126
Idem.
127
Act No. 2 of 2002.
128
Ibid, section 2.
129
Government Proceedings Act [Cap. 5 R.E. 2002]
35
4.3 EXTENSION OF TIME BY THE MINISTER
The main focus of this research is centered on the equality before the law with reference
to the Law of Limitation Act. As seen in the preceding parts, in order for the law to be
considered as the one which recognizes the concept of equality before the law, it must be
applied equally to all and should also confer equal protection to all. This was cemented in Re
Special Courts Bill, 1978131 cited earlier that, all persons similarly circumstanced should be
treated alike both in privileges conferred and liabilities imposed.
The fact that the Minister is empowered to extend the time of limitation where the
prescribed limitation time has elapsed is contrary to the spirit of equality before the law. It is
provided under section 44(1) of the Law of Limitation Act that:
“Where the Minister is of the opinion that in the view of circumstances in

any case, it is just and equitable to do so, he may, after consultation with the
Attorney-General, by order under his hand, extend the period of limitation in
respect of any suit by a period not exceeding one-half of the period of
limitation prescribed by this Act for such suit.”
The effect of this power of the Minister is that, there is no equality before the law
because the law treats other persons differently. The law of Limitation Act has provided for
various circumstances in which will be excluded when computing the period of limitation.
These circumstances includes when the person was under disability according to sections 15,
16 and 17 of the Law of Limitation Act.
In Haji Shomari v. Zainabu Rajabu,132 the appellant instituted the suit to recover his
deceased father‟s land some twenty years after the death. Under item no. 22 of the Schedule
to the Act, the period of limitation prescribed for a suit to recover land is twelve years. The
right of action accrued on the 30th May 1977 and the appellant instituted the suit on the 15th
October 1998. When the right of action accrued in 1977 when the appellant‟s father died on
130
Ibid, section 20.
131
AIR 1979 SC 478.
132
Civil Appeal No. 91 of 2001, Court of Appeal at Dar es Salaam(Unreported).
36
30th May 1977, he was nine years old and therefore under a disability. The Court held that the
appellant attained the age of majority in 1986 and that is the time when the disability ceased;
also it is the time when the time started to run. The suit was instituted on the 15 th October
1998 and it was not time barred.
Other circumstances are the period spent waiting for any court decision or actions like
application for leave to appeal or to obtain the copy of judgment or any order, 133 or where the
defendant was out of the country,134 or where the institution of proceedings was stayed by any
order of the court like injunction.135 These are just some of the circumstances which requires
the period of limitation to be excluded in computation of time of limitation. Chande, J. (as he
then was) in the case of Petro Haule v. Flora M’mbungu held that:136
“In the absence of a notice or a communication to the party of the date on

which the copies are ready for delivery, the delay in taking delivery cannot
be counted against the appellant. Where however, under the rules of a court
the copying establishment is unlikely to tell the exact date on which copies
will be ready and the appellant is not guilty of undue delay in taking
delivery, the period between the date of which being ready and date of
taking delivery shall be excluded.”
The discretion of the Minister to extend time might be used as a tool of prejudicing the
rights of other persons, therefore it is wise to remove these powers from the Minister and
leave the court with the power to determine the validity of any application to institute a suit
according to other provisions of the law.
The power of the Minister to grant extension of time to file suits in courts cannot be left
without criticism. These powers encroaches the principle of separation of powers which has
its foundations in the Constitution137 as provided under Article 4(2). This Article has provided
expressly that the organs vested with judicial powers shall be the Judiciary of the United
Republic and the Judiciary of the Revolutionary Government of Zanzibar. Furthermore, the
133
Sections19 of the Law of Limitation Act.
134
Ibid, sections 20.
135
Ibid, sections 22.
136
Civil Appeal No. 155 of 2004, High Court at Dar es Salaam (Unreported).
137
37
authority with final decision in dispensing justice in Tanzania is the Judiciary. 138 Why should
the Minister, who is in the Executive arm of the State, be allowed to make decisions on
matters which are purely judicial and which are supposed to be determined by the Judiciary?
Surely, this is the clear breach of the principle of separation of powers. In the case of
Mwalimu John Paul Mhozya v. Attorney General (No.1), the court held that:
“The principle that the functions of one branch of government should not
encroach on the functions of another branch is an important one to ensure
that the governing of a state is executed smoothly and peacefully.”139
The power of the Minister to grant extension of time is merely an administrative
procedure. His Lordship Masati, J., in Tanzania Red Cross Society v. Dar es Salaam City
Council & 3 Others140 observed that:
“The requirement to submit claims to the Minister in this case was, in my

view merely administrative. It cannot be taken to have set a period of
limitation for instituting proceedings. That period cannot in my view, be
taken to be at par with the periods set by the Law of Limitation Act.”
From the findings in the above case, since the power of Minister in extending time of
limitation is only administrative, he should not be allowed to exercise the judicial functions of
determining matters which are purely judicial.
The powers of the court in relation to extension of time are confined to institution of
appeals and the filing of applications and they do not extend to the filing of suits as per
section 14(1) of the Law of Limitation Act.This position was held in the appeal case of
Tanga Cement Co. Ltd. v. Christopherson Co. Ltd.141 In the trial court, the respondent sued
the appellant for breach of contract almost after the lapse of twelve years where the trial judge
entered the judgment for the respondent. The Court of Appeal ruled that “the court does not
have the authority to waive limitation except as provided under section 14(1) of the
Limitation Act, 1971. The powers of extension are limited to institution of appeals and the
138
Ibid, Article 107A(1).
139
[1996] TLR 130 (HC)
140
Commercial Case No. 53 of 2005, High Court of Tanzania at Dar es Salaam (Unreported).
141
Civil Appeal No. 133 of 2006, Court of Appeal of Tanzania at Arusha (Unreported).
38
filing of applications and they do not extend to the filing of suits.” Invoking the provisions of
section 3(1) of the Law of Limitation Act, the court went further by holding that “limitation
has to be taken into account even if it has not been pleaded by a party.” A plea of limitation
must be entered at any time during the trial but not in the appeal unless it clear from the
records that the suit was time barred when instituted in the trial court. This was the position in
J.D. Shirima v. Aidan Ndunguru142 where Massati, J. (as he then was) held that:
“I take it to be the position of the law that, generally, a plea of limitation,

although a point of law, may not be entertained on an appeal, unless on the
facts on record it is glaring that the suit was time barred, and the facts which
the defendant must establish to substantiate the new points were neither
proved nor admitted.”
From the above cases it is obvious that whenever a suit is time barred, it should not be
entertained by the court regardless of whether the limitation has been pleaded as a defence by
the other party or not. Time barred suits can only be entertained if they fall under the
circumstances which warrants the exclusion of time as explained above. 143 In the absence of
these circumstances, it is better to leave the court to determine the suit on the merits of section
3(1) and Schedule to the Law of Limitation Act. Another criticism to the power of the
Minister to extend time is the effect that all persons are not subjected to the same law. Why
should other persons be barred from instituting suit in the court due to lapse of prescribed
time while others are allowed? Clearly, this exhibits the issue of double standards. Since the
law has provided for the circumstances under which the extension of time is allowed, then
there is no need to import other exemptions to be dictated by the Minister to extend time of
limitation.
The power of the Minister to extend time to bring suits to the court sometimes can be
misused to favour the government if the one sought to be sued is the government. There is a
likelihood of this to happen where the Minister declines to respond to the application for
142
Civil Appeal No. 108 of 2004, High Court at Dar es Salaam (Unreported).
143
Sections 15, 16 & 17 of the Law of Limitation Act.
39
extension of time. Since there is no any other procedure which is provided by the law that a
person can resort where the Minister become adamant in granting the extension of time, the
applicant is left with no other remedy.
However, it has been observed that the Minister sometimes uses these powers
reasonably as it was in the case of Seleman Mohamed Mtoni v. Minister of Justice and
Attorney General.144 In this case, the applicant brought an action to the court seeking for the
order of certiorari to quash the decision of the Minister of Justice and Constitutional Affairs of
refusing to grant him extension of time to sue the Ministry of Health. The cause of action
arose on 14th January 1996 following the death of applicant‟s daughter, and he applied for
extension of time on 14th January 2001; after the lapse of five years. The prescribed time for
tortious liability is three years as per Item 6 of Part I of the Schedule to the Law of Limitation
Act. The Minister declined to extend time as the allowable time which the minister could
grant to the applicant could not exceed four and a half years. The application was truck out
with costs.
For the purposes of preserving the principle of equality before the law, the law should
apply to all equally. The Minister should not be allowed to make decision in extension of time
to file suits in the court, but rather those powers and discretions should be left to the court
alone so that it can determine those matters basing on the provisions of the law.
4.4 RATIONALE FOR CONFERRING SPECIAL TREATMENT TO THE GOVERNMENT
The concept of State sovereignty and immunity was discussed in Chapter Two of this
research where it was seen that the idea of State sovereignty and immunity sprung from the
Common law doctrine of rex non potest pecarre; that the King can do no wrong, and another
doctrine of nullum tempus occurrit regi; that no time runs against the King. All these
doctrines are said to undermine the fundamental principle of equality before the law as stated
144
Misc. Civil Application No. 2 of 2002, The High Court of Tanzania at Dar es Salaam(Unreported).
40
in Marbury v. Madison that “the very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws whenever he receives an injury.”145 These
doctrines are no longer applied in our legal system as stated earlier by Samatta, JK.(as he then
was) in Mwalimu John Paul Mhozya v. Attorney General at page 133 that:
“The maxim “The King can do no wrong” has no place in our law even if the
word `President' is substituted for the word `King'. Everyone and every
institution or organisation in this country is enjoined to pay respect to the
principle of supremacy of the law,…”
Although the Government or its officials can be sued for damages under the Government
Proceedings Act and other laws, still there are some circumstances where the law confers
immunity, special treatment or privileges to the Government or its officials. The reasons for
this will be explored in the following part.
4.4.1 Avoiding Disruption of Governmental Functions
The Government through its officials is immune from tortious liability if the act
complained of falls within the scope of their official duties.146 It is suggested that, government
officials have to perform their official duties free of fear of facing civil litigations when they
are within the scope of their powers and that the conduct is discretionary in nature. This is in
line with the decision in Barr v. Matteo147 where the court stated that “immunity applies to
discretionary acts at those levels of government where the concept of duty encompasses the
sound exercise of discretionary authority.” If public officials work under such fear, it is likely
that they will be timid and the outcome will be the disruption of governmental functions in
delivering services to the public. This immunity will be justified only if “the contributions of
immunity to effective government in particular contexts outweigh the perhaps recurring harm
145
5 U.S.(1Cranch) 137,163(1803).
146
C.H. Koch, Administrative Practice and Procedure: Cases and Materials, TheMichie Company Law
Publishers, Virginia 19912, 766.
147
360 U.S. 564(1959).
41
to individual citizens.”148 Emphasizing on this, the court in Howard v. Lyons had this to
say:149
“The adoption of this functional approach reflects the Court‟s concern that
federal officials be granted absolute immunity only insofar as the benefits of
immunity outweigh the costs. Because the benefits of official immunity lie
principally in avoiding disruption of governmental functions, the inquiry into
whether absolute immunity is warranted in a particular context depends on
the degree to which the official function would suffer under the threat of
prospective litigation.”
Persons performing functions of judicial nature are immune from proceedings arising in
the course of their duties. This protection is conferred by the Government Proceedings Act
under section 3(5) which states:
“No proceedings shall lie against the Government by virtue of this section in
respect of anything done or omitted to be done by any person while
discharging or purporting to discharge any responsibilities of a judicial
nature vested in him or any responsibilities which he has in connection with
the execution of judicial process.”
4.4.2 Protection of Public Wealth and Interests
The Government is immune from any liability arising out of the functions aimed at
protecting the public wealth or public interest. The Constitution under Article 9(c) requires
that:
“…all the activities of the Government to be conducted in such a way as to

ensure that the national wealth and heritage are harnessed, preserved and
applied for the common good and also to prevent the exploitation of one
person by another.”
In Tanzania, land is a public land and it is among the national wealth which is put under
the trusteeship of the President for the benefit of all citizens as per section 3(1) (a) of the Land
Act.150 Recognising this position, it is impossible for anyone to claim ownership of the land
under adverse possession in Tanzania. The Law of Limitation Act 151 has expressly provided
that “no one shall become entitled to an estate or interest in any public land by adverse
148
Idem.
149
360 U.S. 593(1959).
150
[Cap.113 R.E. 2002].
151
[Cap.89 R.E. 2002].
42
possession.”152 It is from this basis therefore that, the law has given privilege to the
Government to bring suit in the court for recovery of land even if the limitation time has
expired.153 Under this section, the court cannot dismiss the suit on the ground that it is time
barred.
The protection of public wealth has broader scope due to the fact that the President can
take measures to order the review of certain contracts which seemed to exploit the
government. The recent move by Tanzanian President, Honourable John Pombe Magufuli to
barn the exportation of „concentrate sand‟ from mining companies is a vivid example. The
Daily News paper reported that:
“PRESIDENT John PombeMagufuli (JMP) has ordered that no more

mineral sand would be shipped out of the country and asked Acacia Mining
Company to „apologize for its faults‟ if it is still willing to carry on with its
business in the country.”154
This move necessitated the negotiation between the Government and Acacia Mining
Company where the company agreed to pay to the government the amount of taxes claimed to
be evaded by the Company. The Corporate Digest155 is quoted reporting this issue as “Acacia
Mining Agrees on the Tanzania Government's Strict New Mining Laws.” Also, the Company
agreed to abide by the provisions of the newly enacted law on permanent sovereignty of
natural wealth.156 Under this new law, it is provided that the natural wealth and resources
shall be inalienable in any matter whatsoever and shall always remain the property of the
People of United Republic which shall be held in trust by the President on behalf of the
people.157 This Act also requires that all proceeds from the extraction, exploitation or
152
Ibid, section 38(a).
153
Ibid, section 38(c).
154
“JPM receives Mining 2nd report, directs Acacia to pay „stolen taxes‟”, Daily News,12th June 2017, available
at http://www.dailynews.co.tz/index.php/home-news/51144-jpm-receives-mining-2nd-report-directs-acacia-
to-pay-stolen-taxes. Accessed 16th January 2018.
155
Corporate Digest, “Acacia Mining Agrees On The Tanzania Government's Strict New Mining Laws”
available at http://www.corporate-digest.com/index.php/acacia-mining-agrees-on-the-tanzania-governments-
strict-new-mining-laws. Accessed 16th January 2018
156
Natural Wealth and Resources(Permanent Sovereignty) Act, 2017.
157
Ibid, section 5(1)&(2).
43
acquisition of natural wealth and resources to be retained in banks and financial institutions
within the country.158
4.5 EFFECT OF CONFERRING SPECIAL TREATMENT TO THE GOVERNMENT
Despite of the reasons for conferring special treatment to the Government as seen in the
preceding section, also there are some effects in doing so. The major effect of conferring
special treatment to the Government is the possibility of lack of accountability.
Accountability is “associated with the process of being called to account to some
authority for one‟s actions.”159 Accountability is the tool for shaping the functioning of
various institutions and government employees including government agents. If there will be
no mechanism for making these governmental institutions and employees to account for their
actions, there is a danger of paralyzing the whole system of the government since there is a
danger of neglecting to act or to perform their duties with due diligence and care. The
existence of laws which gives more privileges to the State; for instance the Law of Limitation
Act, creates the danger of laziness to its employees. Employees in entities like local
government authorities or other public service offices might not be held accountable for
delaying in taking legal actions which they are required to do simply because they are sure
that their entities are immune from statutes of limitation. The result of these is that the
Government might be losing its resources due to the negligence or incompetence of its
employees.
A good example of what can be caused by lack of accountability on the part of
government employees can be seen in the case of DPP v. Prosper Mwalukasa.160 where the
court said that The Attorney General‟s chamber is and entity with limbs spread over the whole
country and headquarters in Dar es Salaam was aware of the judgment of the court; what the
158
Ibid, section 10(1).
159
R. Mulgan,“Accountability: An Ever-expanding Concept?”, 78 Canberra Public Administration 3 (200),555.
160
[2003] TLR 34.
44
applicant disclosed, therefore, was incompetence on the part of the chambers in
disseminating vital information; and an error of an advocate and laxity, cannot provide a
sufficient excuse for an extension of time.
The Government has legal officers and state attorneys almost in every department and
districts in Tanzania. These officers, who are trusted by the Government, are the one who are
required to be keen and perform their duties professionally and diligently since they are expert
in law; they are conversant with the laws and procedures. When the Government is involved
in any dealing with individuals which attracts legal proceedings to enforce the Government‟s
right, it will be very absurd to see experts neglecting to perform their duty of bringing the
action to court for such a long time until the limitation time elapses. The presence of laws
which confers „unnecessary‟ privileges to the Government might be the root cause of laziness
and negligence to these officers.
4.6 FIELD RESEARCH REPORT
For the purpose of collecting primary data, the researcher visited various departments and
offices whereby through the use of questionnaire he was able to collect opinions from various
legal professionals within Iringa municipality. Members of Judiciary, the office of Attorney
General and different advocates were consulted and requested to volunteer to fill the
questionnaire. Questionnaires were crafted in a way that the answers were in the form of
YES or NO. Furthermore, they were requested to give out their opinions or observations.
The following is the summary of what was collected through the questionnaires:
Table 1: Number and category of participants

Category Number
Judges 2
Magistrates 1
State Attorneys 6
Advocates 3
Total 12
45
Table 2: Reaction to the questions asked

Qn.1: Does the Qn.2: Should Qn.3: Do you think that the Qn.4: Should there be an
Law of Limitation the State have power of the Minister to extension of time by the
Questions Act violate special extend time violates the Minister after expiration
equality before privileges? principle of separation of of the stipulated time by
the law? powers? the Law of Limitation
Act?
Answers YES NO YES NO YES NO YES NO
Judges - 2 - 2 2 - - 2
Magistrates 1 - - 1 - 1 - 1
State 2 4 3 3 1 5 4 2
Attorneys
Advocates - 3 3 - - 3 2 1
Total 3 9 6 6 3 9 6 6
4.7 DATA ANALYSIS AND INTERPRETATION
Interpretation and analysis of data was done on the basis of primary and secondary
sources together with primary data.
4.7.1 INTERPRETATION OF PRIMARY AND SECONDARY SOURCES
After analysing the Law of Limitation Act together with the Constitution of the United
Republic of Tanzania, different international and regional instruments; the researcher has
come to the conclusion that it is true that the Law of Limitation Act violate the principle of
equality before the law. This violation comes in two faces; firstly by conferring more
privileges to the State as opposed to individuals. Secondly, by encroaching into the doctrine
of separation of powers by empowering the Minister with the power to grant extension of time
to institute suits in courts.
Furthermore, through various decided cases, it is proved that there is a violation of the
principle of equality before the law due to the fact the State is accorded more privileges than
individuals. Not only that but also it is proved that allowing the Minister mandate and power
to extend time of limitation violate equality before the law and separation of powers.
46
4.7.2 INTERPRETATION OF PRIMARY DATA
A total of twelvepersons were interviewed through questionnaires. From the data
collected, three persons out of twelveresponded that the Law of Limitation Act violates
equality before the law. However, six persons out of twelve responded that the State should
not be accorded special privileges. It is also observed from the data that three out of twelve
persons did not see that the power of the Minister to extend time violates the principle of
separation of powers, although six persons out of twelvegave their opinion that there should
not be an extension of time by the Minister after expiration of the stipulated time by the Law
of Limitation Act.
It can be deduced from tha data collected that although only 25 percent of persons who
filled the questionnaires agreed that the Law of Limitation Act violates equality before the
law, it does not do away with the fact law in books to have effect it must be interpreted in
courts. Furthermore,50 percent of persons who filled questionnaires opined that the State
should not be given special privileges. Special privileges to the States exhibits the violation of
equality before the law as provided by the Constitution.
Furthermore, data revealed that only 25 percent of those who filled questionnaires were
of the views that the power of the Minister to extend time does not violate the principle of
separation of powers although 50 percent of those interviewed said that there should be no
extension of time by the Minister.
These data supports the ascertion that there is a problem of violation of the principle of
equality before the law between the State and individuals together with violation of the
principle of separation of powers. This is due to the fact that the State is accorded with more
special privileges than individuals by the Law of Limitation Act, also due to the fact that the
Minister‟s powers to grant an extension of time is the encroachment to the functions and
powers of the Judiciary.

47
4.8 CONCLUSION
In this chapter, it was observed that although the principle of equality before the law
requires all to be treated equally before the law, the Law of Limitation Act encroach this
principle as it favours the Government by allowing it to bring suit to the court even when the
time of limitation has elapsed, or it is given much longer time than individuals. However, it
has been observed that the power given to the Minister to extend limitation of time to bring
suit to the court is unnecessary as it interfere with the principle of separation of powers and
equality before the law. The power and discretion over the issue of extension of time should
be left to the court alone. Data collected from field research support the notion that State
should not be accorded special privileges, also there should be no need to allow the Minister
to extend time after expiration of the stipulated time by the Law of Limitation Act.
Furthermore, it has been observed that there is a need to confer privileges or immunity to
the Government so that it can perform the duty of preserving and protecting the natural wealth
and resources of the country for public interests. But, it has been observed that the immunity
and privileges conferred to the Government has the risk of attracting inefficiency and lack of
accountability to the Government officials.

48
CHAPTER FIVE
RECOMMENDATIONS AND CONCLUSION
5.1 INTRODUCTION
This Chapter contains the summary of research findings where it is going to ascertain
whether the research hypothesis has been proved or disproved. It will also include the
researcher‟s recommendations to various stakeholders starting from lawmakers to law
students. Lastly, it will be the conclusion of the whole research.
5.2 SUMMARY OF RESEARCH FINDINGS
This research was based on the hypothesis that the Law of Limitation Act 161 seems
violate the principle of equality before the law by providing different limitation of time
between the State and individuals. The researcher has managed to prove this hypothesis that
the Law of Limitation Act violates the principle of equality before the law.
In order to prove this hypothesis, the researcher made a literature review of the works of
different authors to ascertain whether the question has been dealt on or not. Among the
literatures reviewed it was learnt that many authors have written about how the State is
accorded more privileges through various laws but none of them endeavoured to find out if
they violates the principle of the equality before the law which is provided in the
Constitution.162
Different legal instruments on equality before the law were used by the researcher. It is
evidenced that all these legal instruments starting from the UNDHR, ICCPR, ACHPR,
Protocol to The African Charter on Human and Peoples' Rights on the Rights of Women in
161
[Cap. 89 R.E. 2002]
162
49
Africa, The Constitution, The Law of the Child Act, and Persons with Disabilities Act
provides for the equality in the sense that all persons are equal before the law and are entitled
to equal protection of the law. All of these, particularly the Constitution, discourage the
enactment of laws which favours one class of people including the Government; all are to be
treated equally.163 However, it has been noted that there are doctrines which denotes that you
cannot sue the Government- rex non potest peccare as it can do no wrong. This position has
now changed since the Government can now be sued for damages in civil suits as provided by
section 45 of the Law of Limitation Act. Also it has been observed that despite the fact that
the Government can be sued, still there are laws which confers immunity or special privileges
to the Government; one of them being the Law of Limitation Act. There are circumstances
that these special privileges to the Government are justified, for instance the laws aiming to
protect and preserve the natural wealth and resources of the State.
The Law of Limitation Act has provided for longer limitation of time to the Government
to bring suits to the court while for individuals is not the case. For example, the Government
is given sixty six years limitation of time while for individuals the maximum time is twelve
years. The researcher has come up with the affirmative conclusion supported by the data
collected from field research that, since the Law of Limitation Act has conferred special
privileges on the question of limitation of time to the Government in instituting civil suits in
court, it violates the principle of equality before the law.
Not only does the Law of Limitation Act violates the principle of equality before the law,
but also it encroach the principle of separation of powers since the Minister who is the
executive, is given powers to grant an extension of time as per section 44 of the Act. Apart
from encroaching into the principle of separation of powers, this Minister‟s powers violate the
163
Jackson Ole Nemeteni @ Ole Saibul @ Mdosi@ Mjombamjomba& 19 Others v. A.G., The High Court of
Tanzania, Misc. Civil Cause No.117 of 2004 (Unreported).
50
principle of equality before the law due the fact that some people are treated differently before
the law.
The researcher has come across many cases in which individuals have lost their rights
due to the fact that suits filled by them were dismissed on the ground of lapse of time of
limitation. If the law had put the same longer time of limitation as that of the Government, it
is obvious that these plaintiffs could not have lost their rights.
5.3 RECOMMENDATIONS
Since the researcher has proved that the Law of Limitation Act violates the principle of
equality before the law together with the principle of separation of powers, he has
recommendations to various stakeholders which are going to be given herein under.
5.3.1 RECOMMENDATIONS TO THE LEGISLATURE
The Legislature which is the organ vested with the power to make laws; including
repealing and amending them, is adviced to do the following:
A. Amendment of the Law of Limitation Act
The Law of Limitation Act needs to be amended so as to provide for uniform limitation
of time to bring suits to the court for both the Government and individuals. Since the
Government enters into various contracts with individuals, it should be subjected to the same
treatment as individuals except in matters of land under adverse possession as provided
under section 38(a) of the Law of Limitation Act.
Furthermore, the provision of section 38(c) of the Law of Limitation Act should be
amended by specifying expressly the category of suits for recovery of land that can be
instituted on behalf of the President or the Government that should not be dismissed on the
ground that the limitation of time has elapsed. This is due to the fact that land refers to many
51
aspects. Land as per section 2 of The Courts (Land Disputes Settlement) Act164 includes “the
surface of the earth and the earth below the surface and all substances other than minerals and
petroleum forming part of or below the surface, things naturally growing on the land buildings
and other structures permanently affixed to land.” The Law of Limitation Act should clearly
distinguish buildings and other structures permanently affixed to land for the purposes of
section 38(c).
B. Amendment of Section 14 and Repealing of section 44 of the Law of Limitation Act
It is recommended that section 44 of the Law of Limitation Act be repealed because it
has been observed that the powers given to the Minister under this section to extend limitation
of time is against the principle of separation of powers and equality before the law.The power
granted to Minister under this section should be left to the Court.
The Legislature is adviced to amend section 14 of the Law of Limitation Act so as to
confer the Court with the exclusive power to grant extension of time of limitation to institute
suits.
5.3.2 RECOMMENDATIONS TO THE LAW REFORM COMMISSION
The Law Reform Commission165 is organ vested with the mandate to make review of
laws for the purposes of making recommendation to the lawmakers to amend, repeal or enact
new laws on various matters in the country. Since there are some sections of the Law of
Limitation Act which violates the principles of equality before the law and separation of
powers, the Commission is urged to read this research and consider the recommendations of
the researcher and act upon it accordingly.
164
Act No. 2 of 2002
165
Established by Law Reform Commission of Tanzania Act [Cap.171 R.E 2002]
52
5.3.3 RECOMMENDATIONS TO THE JUDICIARY
Judges and magistrates should be aware that Judiciary is the upholder of rights of citizens
and not Government. The Judiciary is adviced that in discharging their judicial functions, it
should be bold to dispense justice by observing the principle of equality before the law.
5.4 CONCLUSION
The researcher has made efforts to prove the hypothesis that the Law of Limitation Act
violates the principle of equality before the law. Tanzania is the democratic country which
adheres to the fundamental human rights which include the right to equality before the law.
The gist of the principle of equality before the law is equal treatment and protection
before the law without making distinction between the Government and individuals. Since it
has been proved that some of the provisions of the Law of Limitation Act do not conform
with this principle of equality, the researcher is arguing the Law Reform Commission to
consider the recommendations in this research and act upon it accordingly so as to promote
and protect this fundamental principle. It is also the researcher‟s expectations that this
research will be beneficial to law students and other interested parties in broadening their
understanding on this subject.

53
APPENDIX
Research Questionnaire
I am Massawe, Deogratius B., studying LL.B degree at Ruaha Catholic University (RUCU)
in Iringa. I am conducting a research on Equality before the Law between the State and
individuals in Tanzania.
PURPOSE: For the purpose of my researchI would be very grateful if you could share with
me your views or any information as to whether the Law of Limitation Act [Cap.89 R.E.
2002] violates the principle of equality before the law and separation of power as provided by
Articles13 & 4 of the Constitution of the United Republic of Tanzania, 1977.
Provisions of the Law of Limitation Act which are subject of this research are section 3(1)
read together with Items 22 & 23 of the Schedule, and sections 38(c) & 44.
Note that any information you provide will be kept strictly confidential.
Interview Questions to Honourable Judges, Magistrates or Advocates.
Name of Department/Office ………………………………………………………………….
Name (optional) ……………………………………………………………………………...
Your Title………………………………………… ..……………………………………….
1. Does the Law of Limitation Act violate equality before the law? YES NO
54
2. Should the State have special privileges? YES NO
3. Do you think that the power of the Minister to extend time violates the principle of
separation of powers?YES NO
4. Should there be an extension of time by the Minister after expiration of the stipulated
time by the Law of Limitation Act? YES NO
Any other observation or opinion….………………………………………………….............
…………………………………………………………………………………………………
…………………………………………………………………………………………………
…………………………………………………………………………………………………
…………………………………………………………………………………………………
…………………………………………………………………………………………………
…………………………………………………………………………………………………
Your time and opinions are highly appreciated.

55
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Mulgan, R.,“Accountability: An Ever-expanding Concept?”, 78 Canberra Public
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RUAHA CATHOLIC UNIVERSITY

EQUALITY BEFORE THE LAW BETWEEN THE STATE AND

INDIVIDUALS IN TANZANIA: A CRITICAL ANALYSIS OF THE LAW

A Research Paper Submitted in Partial Fulfilment of the Requirements

University, Iringa, Tanzania.

SUPERVISED BY DR. ANA LUIS

Ruaha Catholic University.

University on behalf of the author.

blessings throughout my research work to complete the research successfully.

assistance of various individuals who I feel indebted to extend my heartfelt gratitudes.

this research would have never been accomplished.

research questionnaires which helped me in collecting data for this research.

helped me in completion of research by sparing their time by filling questionnaires which

were used to collect data.

Finally, I must express my very profound gratitude to my family; particularly to my wife

accomplishment would not have been possible without her.

violating the doctrine of separation of powers.

permitted to exercise the functions of the judiciary.

Commission, the Legislature and the Judiciary.

LIST OF LEGAL INSTRUMENTS

African Charter on the Rights and Welfare of the Child,1990[OAU Doc.CAB/LEG/24.9/49].

Organisation of African Unity Charter of 1963,[UNTS Volume No. 479 (p.39)].

Africa of 2003, [OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III).

from time to time).

Judicature and Application of Laws Act, 1961[Cap.358 R.E 2002].

Land Act, 1999[Cap.113 R.E. 2002].

Law Reform Commission of Tanzania Act, 1980[Cap.171 R.E 2002].

Natural Wealth and Resources (Permanent Sovereignty) Act, 2017.

Persons with Disabilities Act, No. 9 of 2010.

Tanganyika Order in Council, 1920.

The Courts (Land Disputes Settlement) Act, No. 2 of 2002.

The Government Proceedings Act, 1967[Cap.5 R.E. 2002].

The Law of Limitation Act, 1971[Cap.89 R.E. 2002].

The Law of the Child Act, No. 21 of 2009.

The Crown Proceedings Act, 1947 of England.

Cases from India:

Re Special Courts Bill, 1978, AIR 1979 SC 478

Cases from England:

Russel v. Men of Devon, (1778) 2 T.R 667

Cases from United States of America:

Barr v. Matteo, 360 U.S. 564(1959)

Howard v. Lyons,360 U.S. 593(1959)

Marbury v. Madison, 5 U.S. (1Cranch) 137,163(1803)

Romer v. Evans, 517 U.S. 620 (1996)

United States v. Thompson, 98 U.S. 486 (1878)

YickWov. Hopkins, 118 U.S. 356 (1886)

Cases from Tanzania:

DPP v. Prosper Mwalukasa [2003] TLR 34

Malekela Mahita v. Kibuwi Nzengwa [1989] TLR 113 (HC)

2005, High Court of Tanzania (Land Division) at Mtwara( Unreported)

Appeal of Tanzania at Arusha (Unreported)

No. 53 of 2005, High Court of Tanzania at Dar es Salaam (Unreported)

Yusuf Same and Another v. Hadija Yusufu[1996] TLR 347

ICCPR International Covenant on Civil and Political Rights

JALA Judicature and Application of Laws Act

OAU Organisation of African Unity

TOC Tanganyika Order in Council

UDHR Universal Declaration of Human Rights

UNTC United Nations Treaty Collections

UNTS United Nations Treaty Series

Copyright .......................................................................................................................... iii

List of legal instruments ................................................................................................... vii

List of cases ....................................................................................................................... ix