Cases on Constitutional and Administrative Laws in Tanzania

Compiled by Jaba Shadrack

List of analysed Cases:

(1) Cotwu (T)-Ottu Union and Another. v. Hon. Iddi Simba, Minister of Industries and Trade and 7 Others High Court (Katiti, J.): May 25, 2000 Miscellaneous Civil Cause No. 100 of 1999

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

(3) Hamisi Masisi and Others v. Republic High Court, Miscellaneous Criminal Cause No. 54 of 1978

(4) Julius Ishengoma Francis Ndyanabo v. Attorney General Court of Appeal, Civil Appeal No. 64 of 20

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

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

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

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

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

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

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

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

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

(14) The Permanent Secretary (Establishments) the Attorney General appellants v. Hilal Hamed Rashid and 4 Others, Court of Appeal, October 4, 2004, Civil Appeal No. 64 C/F No. 66 of 2002

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

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Cotwu (T)-Ottu Union and Another. v. Hon. Iddi Simba, Minister of Industries and Trade and 7 Others High Court (Katiti, J.): May 25, 2000 Miscellaneous Civil Cause No. 100 of 1999

Facts and Issues

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

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

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

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

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

Held:

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

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

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

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

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

Application dismissed with costs.

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

Facts and Issues

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

Held:

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

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

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

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

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

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

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

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

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

Facts and Issues

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

Held:

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

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

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

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

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

Facts and Issues

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

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

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

Held:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Facts and Issues

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

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

Held:

1. There is no justification for a complainant of a violation of a basic human right to be restricted to other forms of remedy under article 30(3) of the Constitution. A complainant should be free to choose the best method legally open to him to prosecute his cause. Section 6 violated the basic human right of unimpeded access to the Court to have one's grievances heard and determined guaranteed under articles 13(3) and 30(3) of the Constitution.

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

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

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

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

6. The requirement of consent to sue was not really necessary for the purpose of affording the Government time to assess the claim and consider settlement out of Court. The restriction militated against the principles of good governance, which called for accountability and openness or transparency on the part of Governments.

Section 6 of the Government proceedings Act 1967 as amended by Act 40 of 1974 unconstitutional and void and struck down.

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

Facts and Issues

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

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

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

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

Held:

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

2. The appellants and other tenants of the second respondent could seek redress in ordinary courts against any arbitrary raise in rents beyond economic rates. In the circumstances, it was not correct to say that GN 41 created two categories of tenants, one enjoying legal protection and the other without. The appellants' right to go to the ordinary courts was not illusory.

3. The effect of GN 41 of 1992 was that it removed the appellants and all tenants of the second respondent from the protection of the Housing Tribunals under the Rent Restriction Act and transferred them to the ordinary courts. This did not violate the concept of equality in article 13 of the Constitution.

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

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

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

Appeal dismissed.

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

Facts and Issues

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

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

Held:

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

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

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

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

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

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

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

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

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

Facts and Issues

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

Held:

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

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

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

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

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

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

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

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

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

Facts and Issues

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

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

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

Held:

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

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

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

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

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

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

Petition incompetent and struck out with costs

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

Facts and Issues

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

Held:

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

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

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

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

Application dismissed.

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

Facts and Issues

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

Held:

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

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

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

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

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

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

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

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

Facts and Issues

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

The Court framed the following issues:-

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

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

Held:

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

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

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

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

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

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

Facts and Issues

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

Held:

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

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

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

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

5. S. 3 of the Tanzania Intelligence and Security Services Act defines "security" to include "subversion", and "subversion" is defined in the same Act to mean attempting to, inciting, counselling, advocating, or encouraging the overthrow by unlawful means of the Government of the United Republic of the United Republic or of the Revolutionary Government of Zanzibar.

6. Subversion and treason are cognate offences as they are both about the overthrow of or the revolting against authority. They both fall securely within security, which by virtue of item 3 of the First Schedule is a Union Matter.

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

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

The Permanent Secretary (Establishments) the Attorney General appellants v. Hilal Hamed Rashid and 4 Others, Court of Appeal, October 4, 2004, Civil Appeal No. 64 C/F No. 66 of 2002

Facts and Issues

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

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

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

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

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

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

Held:

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

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

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

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

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

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

Appeal dismissed with costs. Cross-appeal partly allowed.

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

Facts and Issues

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

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

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

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

Held:

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

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

3. The procedure of originating summons is suited to actions where there is no great dispute on the facts. Allegations of human rights violations are highly contentious matters.

4. Effect of literal interpretation of s.5 of the Basic Rights and Duties Enforcement Act is that a complainant of a human rights violation should petition the High Court by originating summons. Petition and originating summons as originating processes are mutually exclusive and cannot complement each other. Using both in the same action would be superfluous and impracticable. The word "or" would be read into it to make the two procedures of petition and originating summons provided for under s.5 of Act alternative processes for commencing proceedings of human rights violations.

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

Appeal partly allowed.

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Source: EA Law Reports and Tanzania Law Reports.

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