REV.

CHRISTOPHER MTIKILA v THE EDITOR, BUSINESS TIMES &

AUGUSTINE LYATONGA MREMA 1993 TLR 60 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Samatta JK

G CIVIL CASE NO. 47 OF 1992

26 March, 1992
[zFNz]Flynote
H Torts - Vicarious liability - Tort committed by a Minister in the course of official
business - Whether civil action must be action against the Government - Government
Proceedings Act 1967.
I Vicarious Liability - Government vicariously liable for torts committed by its servants
- Whether the servant who has committed
1993 TLR p61
the tort is thereby absolved from liability. A
Vicarious Liability - Government Proceedings Act 1967 - Suits against the Government
for torts committed by its servants - Minister sued personally for a tort committed in the
course of official business - Whether a suit against the Government.
[zHNz]Headnote
The plaintiff sued the defendants in defamation for words uttered by the second
defendant, a B Government Minister, and published by the first defendant. For the
second defendant, a preliminary point was raised and argued to the effect that because the
alleged defamatory words, if they were at all uttered, must have been uttered by the
second defendant in the course of discharging his C ministerial duties, he cannot be sued
in his personal capacity; rather, the suit should be a suit against the Government in
accordance with the Government Proceedings Act 1967.
Held: (i) By vicarious liability the master is liable for tortious acts or omissions of
the servant and the two are joint tort feasors; either or both of them can be sued; D
(ii) Vicarious liability does not transfer the principal liability of the servant to
the master;
(iii) By vicarious liability an employer is vicariously liable for torts committed
by his servant; but that does not absolve the liability of the servant for the tort he has
committed; E
(iv) Suing the Government under vicarious liability does not confer immunity
on the servant of the Government who actually committed the tort; the right to sue the
servant is not affected by the right to sue the master;
(v) No provision of the Government Proceedings Act 1967 or any other
legislation takes away F the common law right to sue a Government servant who
commits a tort in the course of his official duties;
(vi) There is no law conferring immunity upon Ministers or public officials
from being sued personally for torts they commit in the course of their official duties;
when they are so sued in their personal capacity, it is not a suit against the Government;
G
 (vii) The vicarious liability of the master and the initial liability of the servant
are two different branches of liability.
[zCIz]Case Information
Preliminary point rejected with costs.
Cases referred to:
1. Lanchbury and Others v. Morgans and Others [1971] 2 WLR 603. H
2. Young v. Edward Box & Co. Ltd [1951] 1 TLR 789.
3. Moris Sasawata v. Matias Malieko, [1980] TLR 158.
4. Ismail G. Lazaro v. Josephine Ngomera, Court of Appeal of Tanzania at
Mbeya, Civil Appeal No. 2 of 1986 (unreported).
5. Lucas Matafu v. Hon. M.M. Songambele [1977] LRT, n. 10. I
F. Werema/Mwidunda for the second defendant.
1993 TLR p62
[zJDz]Judgment
A Samatta JK: This is an action for damages for defamation. In his plaint the plaintiff,
Rev Christopher Mtikila, avers, inter alia, that the second defendant, Mr Augustine
Lyatonga Mrema, maliciously uttered defamatory words to the first defendant, the Editor
of `Business Times', a B newspaper circulating in Tanzania and beyond, the substance
of which was that the plaintiff was plotting to kidnap him (the second defendant) using
foreign mercenaries. The second defendant is the Minister of Home Affairs in the
Government of the United Republic of Tanzania. The plaintiff C further alleges in the
plaint that on 18 October 1991, the first defendant maliciously and without just cause
published in his newspaper these words. He is claiming from both defendants, among
other things, damages in the sum of Shs 250 million.
D When, on 10 April 1992, the case was called, Mr Werema, appearing for the second
defendant, raised a preliminary point of law. I hope I am not misrepresenting or failing to
do justice to the learned State Attorney if I seek to summarise his contentions as follows:
since the alleged defamatory words, if they were at all uttered, must have been made in
the course of discharging his ministerial duties, E the second defendant cannot in law be
sued in his personal capacity. According to counsel, the only option open to the plaintiff
in this case is to sue the Government of the United Republic after seeking and obtaining
the necessary consent of the Minister responsible for legal affairs, under the provisions of
s 6 of the Government Proceedings Act 1967. The second defendant can be sued in his
personal F capacity in this case only if, to use Mr Werema's own words, the
Government has abandoned him, the second defendant. Counsel hastened to add that no
such abandonment has taken place. The plaintiff, who appeared in person, contended;
citing several authorities, that, as a citizen he has a right in law to sue in tort a person,
who is a State Minister, in his personal capacity and that that right G is not qualified.
There can be no doubt that Mr Werema's argument raises a point of considerable interest.
Before I proceed further, however, I should, I think, quote s 6 of the Government
Proceedings Act 1967, as H amended by the Government Proceedings (Amendment)
Act 1974, heavily relied upon by Mr Werema in his not uninteresting argument. The
section reads:
`6. Notwithstanding any other provision of this Act, no civil proceedings may be
instituted against the Government I without the previous consent in writing of the
Minister:
1993 TLR p63
SAMATTA JK
Provided that no such consent shall be necessary for the making of the
Government a party to any interpleader A proceedings.' (The term `Minister' is defined
in s 2(1) of the Act as meaning the Minister responsible for legal affairs.)'
I wish to make it perfectly clear that in dealing with the preliminary point, I assume,
without deciding, two things: B
1. The Government Proceedings Act (hereinafter referred to as `the Act') is,
insofar as it purports to restrict the right of a person to sue the Government,
constitutional, that is to say, C it does not offend any of the provisions of the
Constitution of the United Republic of 1977 as amended (hereinafter referred to as `the
Constitution').
2. Mr Werema, who is employed as a State Attorney in the Attorney-
General's Chambers, is entitled in law to represent the second defendant in this case. D
Having made those assumptions, I proceed now to consider the merits or otherwise of the
preliminary point.
The doctrine of vicarious liability, whereby the master or principal is liable for tortious
acts or E omissions of his servant or agent, committed in the course of the servant's or
agent's employment or agency, being part of the common law, is undoubtedly, part of the
law of this country. What is the policy underlying that doctrine?
Although there is no unanimity among legal scholars and judicial authorities as regards
the right F answer to that question, I confess that I am greatly attracted, if I may
respectfully say so, by the answer which Lord Denning MR gives to that question in
Lanchbury and Others v Morgens and Others (1).
The Master of the Rolls poses the question and proceeds to answer it. It would be
presumptuous on G my part to attempt to improve on his language. He says at 606:
`What is the basis of this doctrine of vicarious liability? To answer it, I would first
ask: what does "vicarious" mean? I turn to the Shorter Oxford English Dictionary, 3rd ed
(1944), Vol II. It means one "that takes or supplies the place of H another . . ." So
vicarious liability means that one person takes the place of another so far as liability is
concerned. Familiar instances are where the master shoulders the lability of his servant;
or the principal shoulders the liability of his agent; and so forth. Whenever the law
imposes vicarious liability, it does so for reasons of social policy - reasons which
commend I
1993 TLR p64
SAMATTA JK
A themselves to the people at large. If a servant injures another by his negligence,
his master should make good the loss. It does not matter whether the servant or agent is
acting for the benefit of his master or principal, or not. Suffice it that the master or
principal has put him in a position where he may do injury to another; and should be
liable for B the way in which he conducts himself therein. It is true that the master or
principal is not personally at fault. But it is only that he should be made vicariously
liable. Otherwise it would mean that the injured person would get no redress: for, more
often than not, the servant or agent has not the means to pay: whereas the master or
principal has the means: or, at any rate, ought to insure against the liability so as to get
the means to pay. In this way the C innocent victim is not left to bear the whole loss
himself. It is distributed amongst the community in a way that is fair to all.'
It seems clear from this passage that the master or principal and his servant or agent are
in law joint D tortfeasors. Either or both of them can be sued, for, the liability of the
master or principal depends on the liability of the servant or agent. The proposition that
the doctrine of vicarious liability does not transfer the principal liability of the servant or
agent to the master or principal is amply supported by authorities. In Stephen's
Commentaries on the Laws of England, 21st ed, Vol II, there is the following E passage
at 445:
`. . . the liability of the superior for the tortious acts of his subordinate in no way
exempts the latter from personal liability to the party injured. The question is not: "which
is liable?" but "Are both liable?". In many cases, of course, F the liability of the
subordinate is of little practical value; because he is, in popular language, `not worth
powder and shot'. But this is by no means always true.'
G In Halsburys Laws of England, 3rd ed, Vol 25, at 546, the learned authors deal with
the question concerning the liability of the servant as follows:
`A servant who commits a tort is, as a general rule, liable in damages to the
person injured thereby, and his liability H is not affected by the existence of a contract
of service, or, where he commits the tort in the course of his employment and within the
scope of his authority, by the existence of the corresponding liability of his master for the
same tort, since he is the actual tort easer.'
I The learned authors of Halsburys Laws of England, 3rd ed, vol
1993 TLR p65
SAMATTA JK
37, deal with the point in two passages at 135 and 136. The passage at the former page
reads: A
`The person who actually commits a tort is in general liable although in
committing it he is acting as servant of another person, and although he has no reason to
know or suspect that the act is wrongful, unless the act is incapable of being regarded as a
tort in the absence of actual or imputed knowledge.' B
and that on 136 reads as follows:
`Each of two or more joint tortfeasors is liable for the entire damage resulting
from the tort, subject to any C contributory responsibility of the injured persons. Persons
are liable as joint tortfeasors where the act giving rise to the tort is a joint act done in
pursuance of a common purpose. In particular joint liability arises where an agent,
including a servant, commits a tort whilst acting within the scope of his authority. In such
cases agents are jointly D liable with their principals for the consequences of their torts.'
In Young v Edward Box & Co, Ltd (2) Denning LJ examined briefly the legal position of
the servant or agent where the doctrine of vicarious liability is sought to be brought into
play. He said at 793: E
`In every case where it is sought to make a master liable for the conduct of his
servant the first question is to see whether the servant was liable. If the answer is yes, the
second question is to see whether the employer must shoulder the servant's liability.' F
To return home, as eventually one must, I should, I think, quote what I ventured to say
about twelve years ago in Moris A Sasawata v Matias Maleko (3) and, later, quote what
the Court of Appeal said G in I G Lazaro v Josephine Ngomera (4). In Sasawata's case I
said, at 160:
`I have always understood it to be the law of this country that, as a general rule,
the actual perpetrator of an act which in law turns out to be a tort is personally liable for
damages irrespective of on whose behalf or for whose benefit he did the act and
irrespective of the fact that he gained nothing personally. That law is, I think, in harmony
with H common sense.'
As I shall, I hope, presently sufficiently demonstrate, I am bound to adhere to those
words. In Lazaro's case (supra) the appellant was aggrieved by a decision of this Court
(Mroso J) whereby a decision of the Resident Magistrate's Court of Mbeya awarding the
respondent, a woman constable, damages for defamation against the appellant, who was a
Regional Police Commander at the material time, for calling the former at a parade a
prostitute. The suit was filed against the appellant in his personal capacity. In the Court of
B Appeal it was contended on behalf of the appellant, relying on s 3(4) of the Act, that,
the appellant could not be sued in his private capacity as he was acting in his official
capacity at the time in question. The Court rejected that argument. Mustafa JA, in whose
judgment the other members of C the Court concurred, said, at 2 of the cyclostyled
judgment:
`With respect, I am astounded by this contention. Section 3(4) of the Act 16 of
1967 merely renders the Government civilly liable vicariously for acts done by its
servants in the course of their official duties. In matters of tort, a tortfeasor, D the person
who commits a tort, is always primarily liable. An employer is vicariously liable if his
servant commits a tort in the course and within the scope of his employment. That does
not absolve the liability of the servant for the tort committed. It only means that the
employer is also liable as the tort was committed when the servant was supposed E to be
acting in place of or for the employer whose act it becomes.'
To distinguish this case from the case now before me requires, in my respectful opinion,
the labours of Sisyphus and the sophistry of a Roman jurist. Mr Werema sought to meet
the impact of that case F by contending that in that case, unlike in the instant case the
Government had `abandoned' the appellant by refusing to grant its consent to be sued.
With profoundest respect, I can see nothing in the judgment of Mustafa JA, which
suggests, even remotely, that the said abandonment played some G part in the outcome
of the appeal. On the contrary, it seems patently clear from the passage I have quoted that
it was the opinion of the Court that the ability of a victim of a tort to sue the Government
does not confer immunity from suit on the servant or agent of the Government who
actually H committed the tort. In other words, whether or not the victim succeeds to
secure the consent of the Government to sue it, his right to sue its servant or agent is in no
way affected.
Mr Werema also sought to rely on Lucas Matafu v Hon M M Songambele (5) in his
gallant attempt to persuade me to hold that the plaintiff's action against the second
defendant is incompetent in law. In I my settled opinion, that case is no authority for the
proposi- ion which the learned advocate has advanced in the instant case. That case was
an application for A an order directing the respondent to re-open the appellant's bar
which the respondent had ordered, in his capacity as a Regional Commissioner, to be
closed. The respondent was cited in his personal capacity. Mfalila C (as he then was) held
that was an error in law. He said, at 45: B
 `The third difficulty relates to the competency of this application. I take it that for
the purpose of the Government Suits Ordinance Cap 5 this application is a suit. It is
alleged in the affidavit that the respondent Songambele closed the applicant's Bar and
tenantable premises. I cannot imagine how the respondent could have done this in his
personal capacity. He must have used his authority as a Government Officer to effect
whatever he did so that the final C responsibility lay with the Government. For instance
if indeed the respondent closed these two premises, and he were either transferred or
removed from office tomorrow, he would not as Songambele have the authority to re-
open them even if he wanted or was ordered to. These premises were therefore closed by
orders of the Government and D if any redress is needed it must be sought against the
Government. The procedure for getting civil remedies against the Government is
provided in the Government Suits Ordinance, and this must be complied with before this
Court can assume jurisdiction. Since this was not done, this Court has no power to make
any order against the E Government.'
The application was dismissed. Clearly, that case is distinguishable from the instant case.
In that case the `action' was not grounded in law of torts; the appellant was not seeking
damages for F wrongful closure of the bar. What he was seeking was, in effect, an order
that the Government allow the bar to re-open. As rightly pointed out by Mfalila J, that
order could be issued only against the Government. In any case, if my understanding of
Mfalila J's judgment is wrong, that judgment cannot G be followed in view of the
existence of a judgment of a higher court holding the contrary. The action in the instant
case is grounded in tort, and, for reasons I have given, it is my opinion that it was not
necessary in law for the plaintiff to institute proceeding against the Government.
Unless this Court is compelled by a statutory provision which alters the common law
principle, it H cannot turn the plaintiff away. Is there any such a provision in our law?
To that question I now turn my attention. It is an elementary rule of law that the common
law cannot be altered by the legislature except in express terms or by clear implication. In
my view, there is no provision in the Act (the I Government Proceedings Act) or in any
other legislation - includ ing the Constitution - which expressly or by necessary
implication takes away the right of a citizen or other person enjoying the protection of the
law of this country to sue a Government's servant or agent who, in the course of his
official duties, has allegedly committed a tort against him. Section 6 of the Act was not,
in my settled opinion, intended to, and did not cause such a change in B the law. I take
leave to express some doubt, with respect, whether if such a provision existed it would
pass the test of constitutionality. As the law currently stands, there is no legislation which
confers immunity, qualified or otherwise, upon ministers or public officials from being
sued in their C personal or private capacities for torts alleged to have been committed by
then in the course of their official duties. It should be distinctly understood that a suit in
tort against a person who happens to be a minister or public official is not in law bad if
the alleged tort was committed in the course of his D official duties, a suit against the
Government. One does not, in such a suit, require the consent of the Government (the
Minister responsible for legal affairs) to institute the proceedings. Save as provided in
law, a person cannot be a tortfeasor and yet not be liable to a suit. Neither under the
Constitution nor under any other law do ministers enjoy exemption from civil
proceedings. Like in the case of E private persons, vicarious responsibility and initial
liability are two different branches of liability. Apart from any legislative enactment,
there is a right of access to the courts of law in every citizen and in every stranger within
the country. That right is a fundamental one: it is jealously guarded by courts.
F In spite of his very strenuous argument, Mr Werema has not come within miles of
persuading me that there is merit in that argument. It is my view in this case that the
plaintiff is, for reasons I have endeavoured to express, entitled in law to sue the second
defendant in his (the second defendant's) private capacity.
G It is tempting to part with the case there, but I think it proper to say this: the question
whether the alleged publication is defamatory and whether the defendants are liable as
allowed or at all is a matter which will be decided by the Trial Court. What I was
concerned with in this ruling was solely H whether in this case the plaintiff is precluded
by law from suing the second defendant in his personal or private capacity. That is the
question which I have endeavoured to answer in this ruling. –
PETER NG'OMANGO v GERSON M.K. MWANGWA AND THE ATTORNEY
GENERAL 1993 TLR 77 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J

CIVIL CASE NO. 22 of 1992 B

11 December, 1992 - DODOMA
[zFNz]Flynote
Constitution Law - Right of access to court to seek a remedy - Article 13 of the
Constitution. C
Constitutional Law - Right of access to court and suits against the government -
Requirement of ministerial consent to sue the government - Whether constitutional -
Section 6 of the Government Proceedings Act 1967 and article 13(3) and (6)(a) and
article 30 of the Constitution. D
[zHNz]Headnote
The plaintiff sued the Principal of Mpwapwa Teachers' College who, being a public
servant, applied to have the government joined as a co-defendant but his application was
rejected. Then the Attorney E General applied to have the government joined as a co-
defendant; this application was also rejected. But finally the government was, by third
party notice, joined as 2nd defendant. A preliminary objection was then raised on behalf
of the government to the effect that the suit was incompetent for want of consent of the
Minister to sue the government, a requirement of s 6 of the Government Proceedings Act
1967. The plaintiff countered that s 6 of the Act was unconstitutional for infringing the
right of free F access to court, and was therefore null and void.

Held: (i) The right of an individual to have free access to the courts is well
recognized by the Constitution; the requirement of consent of the Minister before one can
sue the government as imposed by s 6 of the Government Proceedings Act 1967 infringes
in a big way the G constitutional right of free access to the courts for remedies;
(ii) The consent powers of the Minister under s 6 of the Government
Proceedings Act 1967 are so arbitrary and oppressive, and not subject to any restraint or
control against abuse that they cannot be saved as lawful by article 30 of the Constitution;
(iii) The provision requiring the Minister's consent to sue the government is so
broadly drafted H tht it offends the doctrine of proportionality; it denies an effective and
prompt remedy even to those with clear and genuine grievances against the government;
(iv) The requirement of ministerial fiat to sue the government defeats the spirit
of the Government Proceedings Act 1967 by bringing back outdated notions which held
that rulers I could do no wrong and could
1993 TLR p78
A not be sued, and which have now been discarded by nearly all
commonwealth countries;
(v) Obiter: it is inappropriate for the law to give citizens of one part of the
United Republic, Zanzibar, better access to court to complain against the government
than the rest of the citizens;
 B (vi) Obiter: the requirement of ministerial fiat to sue the government militates
against the principles of accountability, openness and transparency of the government, all
of which go well with the recently re-introduced multi-party democratic system.
(vii) Section 6 of the Government Proceedings Act 1967 is unconstitutional and
null and void.
[zCIz]Case Information
C Preliminary objection dismissed.
Cases referred to:
1. Attorney General v. Lesinoi Ndeanai & Another, [1980] TLR 214.
2. DPP v. Ally Haji Ahmed & Ten Others, CAT - Criminal Appeal No. 44 &
45 of 1985 D (unreported).
3. R v. Secretary of State for Home Affairs ex-parte Bhajan Singh, [1975] 2
All ER 1081.
4. Macauley v. Minister for Posts and Telegraphs, [1966] IR 345.
5. Shah v. Attorney General (No. 2) [1970] EA 523.
6. DPP v. Daudi Pete [1993] TLR 22
E 7. Maneka Gandhi v. Union of India [1978] 2 SCR 621.
8. Ong Ah Chuan v. Public Prosecutor [1981] AC 648.
9. Silver Case [1983] 5 EHRR 247.
10. Clarke v. Karika [1985] LRC (Const.) 732.
11. The Queen v. Big M. Drug Mart Ltd., [1986] LRC (Const.) 332.
F 12. Precunier v. Martinez [1974] 416 US 396.
13. Sunday Times Case, [1979] 2 EHRR 245
14. Johnson v. Chief Constable of the RUC, [1987] Q.B. 129.
15. Himid Mbaye v. The Brigade Commander [1984] TLR 294 (HC).
16. Shabani Khamis v. Samson Goa and Another, High Court of Zanzibar
Civil Case No. 18 of G 1983 (unreported).
17. Khalfan Abeid Hamad v. Director of Civil Aviation, High Court of
Zanzibar, Civil Case No. 20 of 1986 (unreported).
18. Rev. Christopher Mtikila v. The Editor, Business Time & Augustine L.
Mrema [1993] TLR 60.
H Ndunguru, for the second defendant.
December 11, 1992.
[zJDz]Judgment
Mwalusanya J: The plaintiff Peter s/o Ng'omgango is a tutor at Mpwapwa Teacher's
College. He filed I a suit against the principal of Mpwapwa Teacher's College one Mr
Gerson M K Mwangwa claiming Shs 1,201,762/= as damages for malicious prosecution
1993 TLR p79
MWALUSANYA J
and defamation. The defendant applied to have the government joined as co-defendant
simply A because he is a public servant but I rejected the application. Then the State
Attorney i/c of Dodoma Zone Mr Mwambe, duly instructed by the Attorney-General
applied to have the government joined as a co-defendant and again the application was
rejected. I advised the defendant that the proper procedure was for him to apply for a
third party notice so that the government is joined as B co-defendant. That he did and
the government was finally duly joined as the 2nd defendant.
As expected, the 2nd defendant (the govt) in its written statement of defence has raised a
preliminary objection to the effect that the suit is incompetent, for want of consent of the
Minister for Justice C under the provisions of the Government Proceedings Act 16 of
1967. In his reply the plaintiff has raised a constitutional point to the effect that the
Government Proceedings Act 16 of 1967 as amended by Act 40 of 1974 is
unconstitutional and so void. He said that if offends arts 13(3), 13(6)(a) D and 30(3) of
our Constitution and so it should be declared void under s 64(5) of the Constitution as
well as s 5(1) of Act 16 of 1984. The Republic was represented by Mr Ndunguru, State
Attorney while the plaintiff argued the point in person.
The State Attorney Mr Ndunguru conceded that the constitutional point in question was
duly served E on him as required by s 17A(2) of the Law Reform (Fatal Accidents Misc
Provisions) Ord Cap 360 as amended by Act 27 of 1991. So he said that he was quite
ready to argue the point. F
The points raised by Mr Ndunguru were two-fold. First that, assuming that the right of an
individual to have access to the courts is granted under arts 13(3), 13(6)(a) and 30(3) of
the Constitution, yet the same have not been infringed by the Government Proceedings
Act. He said that s 6 of the G Government Proceedings Act, which requires written
permission from the Minister of Justice in order to sue the government was a mere
procedural matter which did not take away the right to sue the government. He said that
the right to sue the government is left intact. He contended that since it is H only a
procedural matter, it does not infringe the right of access to the courts. He said that it is
just like a procedure which is provided in the Civil Procedure Code that one cannot sue
any defendant until he has filed a proper plaint in court or until he has given a proper
notice to sue the defendant. In fine he argued that the requirement of a fiat from the
Minister for Justice is not inconsistent with the right to have a free access to the courts. I
1993 TLR p80
MWALUSANYA J
A Secondly, Mr Ndunguru argued that even if the requirement of a ministerial fiat is
taken to infringe the right of free access to the courts provided for in the Constitution,
nevertheless he argued the Government Proceedings Act is saved by the derogation
clause in article 30(1) and (2) of the Constitution as it is in public interest. He said that it
was in public interest for two reasons. First that B the restriction is necessary so as to
avoid unnecessary harassment of the government so that it functions smoothly when
serving the general public. He said that public policy requires that the government
conduct its business smoothly without unnecessary harassments and impediments C
otherwise the general public will not be served well. Secondly the State Attorney argued
that if the High Court will declare this statute to be unconstitutional, the courts will be
inundated with numerous cases against the government and the courts will not be able to
cope with the flood of those cases. D So he said that the requirement of a ministerial fiat
was in public interest under article 30(1) and (2) of our Constitution, so as to limit the
number of cases going to court. And at the same time the government will be spared the
embarrassment of being the defendant in frivolous and vexatious cases. He said that, that
situation would not be healthy if the requirement of a ministerial fiat is E abolished.
The plaintiff replied by stating that the requirement of a ministerial fiat was not a mere
procedural matter but substantively restricts the right to have free access to the courts. He
continued to submit F that the Government Proceedings Act is not in public interest and
so it is not saved by the derogation clause or claw-back clause. He said that since in every
case where the government is the defendant, he said government would be fully heard
and defended by a competent State Attorney, he G could not see any reason as to why
the ministerial fiat should be imposed. He said that the government would not be
prejudiced in any way if the ministerial fiat is taken away. He also argued that the
requirement of a ministerial fiat is out of touch with the newly acquired multi-party
democracy which stand for openness and transparency on the part of the government.
H Naturally the first question to be answered by this court is as to whether the right of
free access to the courts for a remedy is recognised by our Constitution. It is my finding
that the right of an individual for free access to the courts is recognised by our
Constitution. First we have article 13(3) of our I Constitution which provides: `The Civil
Rights, obligations and interests of every person
1993 TLR p81
MWALUSANYA J
shall be protected and determined by competent courts of law.' And article 30(3) of our
Constitution A provides that if one feels that his constitutional rights have been violated,
he has the right to `institute proceedings for relief in the High Court'. Not only that we
have article 13(1) of our Constitution which provides that all persons are entitled to the
protection of the law which envisages that any person will B have a free access to the
courts for a remedy. And finally we have article 13(6)(a) of our Constitution which
provides for a right of a fair hearing by the court of law, when ones rights and obligations
are being determined. The right to be heard includes the right to have free access to the
courts to file a suit for a remedy. That was the interpretation by the European Court of
Human Rights C in the case of Golder v UK (Judgment of 21 February 1975) in respect
of article 6(1) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950) which is worded in similar terms like our article 13(6) of
our Constitution. That Court invoked a purposeful D construction instead of a literal
construction of the Constitution. That case is digested by a distinguished English jurist
Mr Anthony Lester QC at 1063 of the Commonwealth Law Bulletin (1991) 17 CLB 1055
in his article titled `Preparing and Presenting a Human Rights Brief'. I adopt that E
persuasive authority by the European Human Rights Court. The above account amply
demonstrates that our Constitution recognises the right of an individual to have free
access to the courts for a remedy.
The next question is whether the right to have free access to the courts for a remedy is
infringed by F the mere fact that s 6 of the Government Proceedings Act 1967 requires a
ministerial fiat before one files a suit in court. Counsel for the Republic Mr Ndunguru
argued strongly to the effect that the constitutional right to have free access to the courts
for a remedy is not infringed by the requirements of a ministerial fiat, because he said
that was a mere procedural matter while the right to file a suit is left intact. That problem
can only be answered by looking at the international human rights G instruments and
other comparative jurisprudence. It is a general principle of law that the interpretation of
our provisions in the Constitution have to be made in the light of jurisprudence which has
developed on similar provisions in other international and regional statements of the law.
That H was the view taken by Kyalali CJ in the case of AG v Lesinoi Ndeanai &
Another (1) at page 222 where he said: `On a matter of this nature it is always very
helpful to consider what solutions to the problems other courts in other countries have
found, since basically human beings are the same though they may I
1993 TLR p82
MWALUSANYA J
A live under different conditions.' The same view was repeated by the Tanzania Court
of Appeal in the case of DPP v Ally Haji Ahmed & Ten Others (2) where the court
emphasized that in interpreting the Constitution the courts have to take into account the
provisions of the Universal Declaration of Human Rights (1948) and other treaties which
Tanzania has ratified. That view is also in line with the B Harare Declaration of Human
Rights issued at the end of a high level judicial colloquium of Commonwealth Judges on
the topic of Domestic Application of International Human Rights Norms, convened in
Harare, Zimbabwe between 19 and 22 April 1989. Our Chief Justice Hon Francis Nyalali
attended that colloquium. In their declaration they endorsed the Bangalore Principles
(1988) to the C effect that it is within the proper nature of the judicial process for
national courts to have regard to international human rights norms (whether or not
incorporated into domestic law) for the purpose of D resolving ambiguity or uncertainty
in national Constitutions and legislation. On the same point see Maxwell on the
Interpretation of Statutes (1969) 2nd ed at 183 as well as the judgment of Lord Denning
MR in the case of R v Sec of State for Home Affairs ex-parte Bhajan Singh (3) at 1089.
E Now Tanzania has ratified the following international and regional instruments which
provide for the right of free access to the courts without any impediments: the Universal
Declaration of Human Rights (1948) in article 8; the African Charter on Human and
Peoples Rights (1981) in article 7(1) F which Tanzania ratified on 18 February 1984; the
International Covenant on Civil and Political Rights (1976) in article 2(3) which
Tanzania ratified on 11 September 1976. All those treaties or instruments are very
specific that the right of free access to the courts should be without any impediments,
including the impediment of the requirement of a ministerial fiat. That was what was
decided by the G European Court of Human rights in the Golder case (supra). The UN
Human Rights Committee interpreting that right in the case of Wight v Madagascar case
No 115/1982 held that a right of access to the courts is infringed not only when an
individual is denied the right to file a suit, but also H when restrictions are imposed such
that the right to file a suit is rendered illusory or is cumbersome (see at 45 of the Report
of the Proceedings of the Judicial Colloquium in Harare, Zimbabwe 19-2 April 1989
published by the Commonwealth Secretariat in November 1989).
That is not all, as we have also comparative jurisprudence. Northern Ireland had the
Ministers and I Secretaries Act of 1924 which was in pari materia with our Government
Proceedings Act 1967 as it
1993 TLR p83
MWALUSANYA J
required the consent of the Attorney-General before the government was sued. The
Supreme Court A of Northern Ireland in the case of Macauley v Minister for Posts and
Telegraphs (4) held that the provision requiring the consent of the Attorney-General was
unconstitutional and void as it was in breach of the citizen's right to have access to the
courts for a remedy. Nearer home we have the B case from Uganda, the case of Shah v
Attorney-General (No 2) (5). The matter there concerned the provision of s 2(1) of the
Local Administrations (Amendment) Act 2 of 1969 which imposed the requirement of a
ministerial fiat before one could sue the government. Justices Jones, Mead and Wambuzi
unanimously held that the provision in question was unconstitutional and void in that it
C purported to deprive an aggrieved party of the protection of the law given by the
Ugandan Constitution in article 8(2)(a) which is the equivalent of our article 13(1) and
(3) of our Constitution. Moreover a very powerful Commission known as the Nyalali
Commission in Book Three of its recommendations D at p 30 holds the view, that the
requirement of a ministerial fiat is unconstitutional because it deprives an individual the
right of a free access to the courts, and accordingly it recommended for its abolition.
In the light of the reasons enumerated above, I am unable to agree with counsel for the
Republic Mr E Ndunguru that the requirement of a Ministerial fiat does not infringe the
constitutional right of free access to the courts for a remedy. The right is infringed in a
big way.
Granted that the requirement of a ministerial fiat infringes the Constitution, is it saved by
the F derogation clause or claw-back clause in article 30(1) and (2) of our Constitution
for being in public interest. The Tanzanian Court of Appeal in the case of DPP v Daudi
Pete (6) held that a statute which infringes the basic human rights is not void if the
Republic proves that it is in public interest. G The Tanzanian Court of Appeal made two
guidelines as to which law which infringes the basic human rights may be saved by the
derogation clause. First the law in question should make adequate safeguards against
arbitrary decisions. Secondly the said law should not offend the H doctrine of
proportionality or reasonableness - that is the law should not be too broadly drafted as to
net the innocent and the offenders. I will discuss these two points seriatim.
The law which is alleged to have been saved by the derogation clause for being in public
interest, I must have adequate safeguards against arbitrary deprivation of basic human
rights. The Tanzania
1993 TLR p84
MWALUSANYA J
A Court of Appeal in the Daudi Pete (6) case quoted with approval the decisions of the
Supreme Court of India in the case of Maneka Gandhi v Union of India (7) to the effect
that any law which does not have adequate safeguards and effective control against
arbitrary interferences by public authorities with the rights safeguarded is not `law'. A
lawful `law' implies compatibility with the rule of B law. The Privy Council in the case
of Ong Ah Chuan v Public Prosecutor (8) at 669-671 made a similar remark. Therefore it
is not enough to have a `law' which does not have safeguards, because it is not `law' at all
- see Prof H W R Wade in his book Administrative Law (1965) Oxford University C
Press at page 37. And Chief Justice Francis Nyalali made a pertinent remark when
addressing the legal community at the University of DSM in 1985 on the topic `The Bill
of Rights in Tanzania' (1991) vol 8 DSM University Law Journal when he said at 2: `This
overriding of rights and duties of the D individual by rights and duties of the community
does not however entail arbitrary action on the part of the community or its institutions.
As illustrated by the provisions of article 30(2) it has to be done according to law'. The
European Court of Human Rights has also held in the case of the Silver case (9) that a
`law' that infringes basic human rights without any adequate safeguards against arbitrary
E action, is not `law'. Now a glance at the Government Proceedings Act 1967 will reveal
that it is not a lawful `law' because it does not have any safeguards against arbitrary
action by the Minister for Justice. The arbitrariness and oppressive nature of the
Government Proceedings Act 1967 has been F amply documented - see Report of the
Nyalali Commission, Book Three at page 30 and the LLM Dissertation of 1985 by law
lecturer of the University of DSM Mr M K B Wambali titled The Tort Liability of the
Government in Tanzania. The impact of the Government Proceedings Act 1967 on the
rights of individual claimants see Mimeo at the University of DSM Library. First there is
no appeal G against the decision of the Minister for Justice contrary to article 13(6)(a)
of our Constitution. Secondly, there is all likelihood that the ministerial power may be
grossly abused as the Act does not provide for restrictions of any type on the Minister.
Thirdly there are no guidelines laid down for the H Minister to follow in exercising this
power. We are all at the mercy of his idiosyncrasies. Fourthly there is no obligation
imposed on the part of the Minister to answer the application and so Ministerial power
may affect the period of limitation. Finally the consent has an extremely great likelihood
of not I serving the ends of justice, for how come that the government is a judge in its
own cause? The decision will always
1993 TLR p85
MWALUSANYA J
be at the expense of the individual rights. The procedure patently defends the ends of
justice. A
There can be no doubt that the Ministerial fiat requirements has been used by the
government as a tool of oppression against the people it govern. That much has been
documented by Mr Wambali in B his dissertation. He found that one could hardly make
out tangible principles by which the Minister for Justice was guided in reaching the
decision whether or not consent should be granted. He found that in each case any
plausible justification was made for either a grant or a refusal. In short the decisions were
found always to be palpably arbitrary. Examples are cited in the thesis wherein C
consent was refused simply because the Minister thought if the matter went to court a
good quantum of damages would have been awarded by the courts to the claimant on
merits. In other cases Mr Wambali found that in many instances the Minister reached his
manifestly adverse decision without referring to any supporting legal authorities or
basing them on incorrect points of law. Another valid D complaint he discovered was
the length of time taken to deal with the applications. It usually takes an unnecessarily
long time. He found that out of the 58 tort claims he studied, only 6 applications for
consent were granted by the Minister, that is about 10 per cent; and it took the average of
four years E to reach the decision either way.
Certainly that is an inordinately very long time to reach a decision, taking into account
the fact that the period of limitation is three years for torts. The graphic account of Mr M
K B Wambali can also be F seen in his paper he presented at the Seminar to
Commemorate 25 years of the Faculty of Law, held between 20th and 25th October 1986
at the University of DSM titled `The enforcement of the Bill of Rights against the
Government'.
Others to document the oppression rendered by the requirement of the ministerial fiat is
Dr Chris G Maina Peter a lecturer at the Faculty of Law of the University of DSM in his
article Five Years of the Bill of Rights in Tanzania Drawing a Balance Sheet published in
the African Journal of International and Comparative Law - 4 RADIC (1992) pages 131-
167 at 156-157 where he states: H
 `The most conspicuous and frustrating among the rights denied to the citizen is
the right to sue the government. It seems as if the government has resolved to protect
itself. This protectionist attitude of the government is codified through the Government
Proceedings Act 1967. This strategic legislation insulates the government from all claims
I in a feudalistic manner. According to this law, anybody
1993 TLR p86
MWALUSANYA J
A wanting to sue the government has first to seek permission from the same
government through the Attorney-General. To get such permission is a tussle which takes
time. In some cases it has taken years to get the holy permit. This is not an accident, it has
a meaning. The time factor is intended to wear our the claimant and force B him to settle
the matter out of court with the government. If he insists on proceeding with the case,
then time will have taken its toll and it is likely that some of the key witnesses will have
died, been transferred or simply forgotten what transpired in relation to the issue being
litigated. The legislation is quite irrational. The cruelty of this sadism C reaches the
climax when the applicant himself dies while waiting for the Attorney-General's
permission to enable him to pursue his rights through the courts of law. This happened in
the case of Soarion Bruno.'
Others who have made similar adverse remarks against the Government Proceedings Act
1967 D include Prof Issa G Shivji in his article State and Constitutionalism in Africa: A
New Democratic Perspective (1990) vol 18 of the International Journal of the Society of
Law page 381 at 401.
And as I said earlier there are no safeguards and effective control against any gross
abuses that they E may be committed by the Minister for Justice. The State Attorney Mr
Ndunguru must have been kidding when he submitted that the law in question is in public
interest. To the contrary it is the public who are being oppressed. Mr Ndunguru should
respect the maxim, no research no right to speak. It is my finding that as the Government
Proceedings Act 1967 has no safeguards and effective control F against gross abuses as
amply documented above, it is not a lawful `law'. It is void and unconstitutional. It is also
my considered view that the Government Proceedings Act 1967 offends the doctrine of
G proportionality. This principle of proportionality requires that the means employed by
the government to implement matters in public interest should be no more than is
reasonably necessary to achieve the legitimate aims. In other words, the government must
show that the restriction imposed on a H basic human right is required by a compelling
social need and that it is so framed as not to limit the right in question more than is
necessary or proportionate to achieve a legitimate objective. The doctrine is discussed by
the Court of Appeal of Cook Islands in the case of Clark v Karika (10) and by the
Supreme Court of Canada in the case of The Queen v Big M Drug Mart Ltd (11). And Mr
I Anthony Lester QC in his article mentioned above at
1993 TLR p87
MWALUSANYA J
pages 1064-1065 quotes a number of cases decided by the Supreme Courts of many A
Commonwealth countries which consider the principle of proportionality to be as well
established to be part of the public law or administrative law. In the USA the principle of
proportionality was recognised by the US Supreme Court in the case of Precunier v
Martinez (12) at p 143. While the European Court of Human Rights has invoked that
doctrine in outlawing laws going against basic B human rights in the case of Sunday
Times Case (13) and the case of Silver Case (9). In England the doctrine of
proportionality is discussed in Halsbury's Laws of England 4th ed vol 51 at para 2296 and
see also the case of Johnson v Chief Constable of the RUC (14) at 151. In Tanzania the
doctrine of C proportionality was expounded by the Tanzanian Court of Appeal in the
DPP v Daudi Pete Case (6) wherein it is stated that the law being defended for being in
public interest should not be too broadly drafted such that its provisions are capable of
depriving personal liberty not only to persons who are considered to be dangerous, but
even to persons who cannot be considered to be dangerous. They said the law should not
be a rat-trap which catches both rats and humans without D distinction.
Now the Government Proceedings Act 1967 offends the doctrine of proportionality
because it is so E broad such that it denies an effective and prompt remedy to all and
sundry without distinction - even to those who have a clear and genuine grievance against
the government. I see no compelling social need to have restriction to sue the
government, whereby the rights of citizens are marginalised and F emasculated. The
State Attorney Mr Ndunguru argued that the courts will be flooded with cases when the
government is allowed to be sued without fiat; and also that the government will not be
able to function smoothly if frivolous and vexatious cases are freely allowed in courts
against the government. Such arguments are preposterous and without substance. Nearly
all countries of the G Commonwealth have done away with the requirement of a
ministerial fiat, and they don't face such problems as mentioned by the State Attorney. In
fact in one part of Tanzania, that is in Zanzibar, the right to sue the Government of the
United Republic without a ministerial fiat is recognised and no H problems mentioned
by the State Attorney are encountered there. In his article in the Journal of the Judges and
Magistrates Association of Tanzania (1989) vol I page 1, the Hon Mr Justice Ramadhani
(then Chief Justice of Zanzibar) mentions three cases in which the Union Government
has been I sued without the fiat namely: Himidi Mbaye v The Brigade Commander of
1993 TLR p88
MWALUSANYA J
A Nyuki Brigade (15); Shabani Khamis v Samson Goa & Another (16) and Khalfan
Abeid Hamad v The Director of Civil Aviation (17). In Zanzibar all that one has to do
before suing the government is to give a month's notice to the government. That is a
sufficient and reasonable restriction against suing the government. The legislation in
Zanzibar is in line with the doctrine of proportionality as it B does not limit the right of
access to the courts more than is necessary or proportionate to achieve a legitimate
objective. The law in Tanzania mainland is based on the unjustifiable protectionist
attitude or fear that the government may be involved in uncontrolled litigation, thus
ending in serious losses of C revenue. But that argument cannot hold water when one
considers the high capability of the government to distribute the losses suffered through
some fiscal measures, such as taxation.
The courts of course will always recognise that the state enjoys a margin of appreciation
in D conforming their law and practice with the basic human rights. But the government
does not enjoy an unlimited margin of appreciation. Ultimately it is for the Court to
assess whether the reasons given to justify an interference with the basic human right are
relevant and sufficient. In the case in hand the E government has failed to establish on a
balance of probabilities that the requirement of a ministerial fiat is for a given pressing
social need and that the restriction is framed such that as not to limit the right protected
more than is necessary. In short the government has failed to prove that the restriction on
the right to have free access to the courts is proportionate and closely tailored to the F
aim sought to be achieved.
There is also another dimension. In view of the fact that Tanzanians of Zanzibar can sue
the Union government without a ministerial fiat, while their counterparts in mainland
Tanzania cannot do that, a G case is made out to the effect that the Government
Proceeding Act 1967 infringes article 13(1) of our Constitution. That article provides:
`All persons are equal before the law and are entitled without any discrimination, to equal
opportunity before and protection of the law.' Now the impugned law is discriminatory of
the citizens of mainland Tanzania just because of their place of origin - see article H
13(5) of our Constitution which defines what discrimination means.
As the law now stands the Tanzanians of Zanzibar are more equal than the Tanzanians of
the mainland. That is not a healthy situation.
I The practice of the requirement of a ministerial fiat before one
1993 TLR p89
MWALUSANYA J
can sue the government, defeats the general spirit underlying the Government
Proceedings Act A 1967. The statement of the objects and reasons of the Government
Proceedings Bill of 1967 was said to be: `That in a modern democratic State, it is right
that the government should be able to sue or be sued as if it were a private person of full
capacity.' And that the Bill sought to reform the law B relating to civil proceedings in
courts by or against the government, as the law hitherto in operation was thoroughly
outdated - see Attorney-General Mr Mark Bomani in Hansard `Majadiliano ya Bunge
1967 - Mkutano ya Nane - 11 April to 18 April 1967 at 108'. In its Fundamental
Objectives and C Directive Principles of State Policy the Constitution in article 9(1)(k)
states that Tanzania is a democratic state. Then why did he government out of the blue in
1974 by Act 40 reintroduce the ministerial consent requirement when in 1967 it was
stated to be undemocratic and outdated? Is D Tanzania not a democratic state now? And
it is not axiomatic that the law in question is outdated? That law finds it root in ancient
English Constitutional mythology about the divine nature of kingship - that the `King can
do no wrong' and that `the King cannot be sued'. But that is an anachronism in a
democratic state like Tanzania. Even in England itself the position changed since 1947
whereby a E citizen can sue the government as of right. And nearly all the
Commonwealth countries have done away with the requirement of a ministerial fiat.
Tanzania is an odd man out.
The requirement of a ministerial fiat militates against the principle of accountability and
the often quoted principle of openness and transparency of the government. The Ontario
Law Reform F Commission of Canada in its report headed Report on the Liability of the
Crown, 1989 reported in the Commonwealth Law Bulletin vol 16 no 3 of July 1990 pages
855-859 said at 856. G
`The present law governing liability of the Crown, insofar as it still provides
privileges and immunities not enjoyed by ordinary persons is inconsistent with popular
conceptions of government: Crown immunities are particularly contrary to a deeply - held
notion that the government and its officials ought to be subject to the same legal rules H
as private individuals and should be accountable to injured citizen for its wrongful
conduct. A key element of this concept is the fact that the application or ordinary
principles of law to government is placed in the hands of the ordinary courts, who are
independent of government and therefore capable of being relied upon to award an
appropriate remedy to a person who has been injured by unlawful government action.' I
1993 TLR p90
MWALUSANYA J
A At the end of the day, the Ontario Law Reform Commission recommended the
abolition of the requirement of the ministerial fiat, as it was also found to be inconsistent
with the Canadian Charter of Rights and Freedoms.
In Tanzania under one party democracy, the spurious justification for having a
requirement of the B ministerial fiat, was espoused by some party fundamentalists
(Wakereketwa) who nursed the idea that the government under the leadership of the CCN
party which had a `clear and correct ideology' had a greater public interest to preserve
and a monopoly of what is good for the country and C therefore cannot be let to be
scandalized in courts by individuals with impunity. However that view cannot prevail
now with the advent of multi-party democracy which was ushered in, in July 1992. In a
bid to expand democracy the people in a multi-party democracy will continue bit by bit to
wrench D away the mask of invincibility and unimpenetrability that the government
sought to wear for many years under one party rule - see the debates in Parliament during
the passing of the 9th Constitutional Amendment Act of 1992. Thus the vulnerability of
the government to give way for more democratic institutions and norms has now been
exposed.
E In the final analysis, I find that s 6 of the Government Proceedings Act 1967 as
amended by Act 40 of 1974 is unconstitutional and so void. I so declare under s 5(1) of
Act 16 of 1984 as well as article 64(5) of the Constitution. For sure by this step, the CCM
government will rejoice because in the 1990 F Election Manifesto, the said CCM
government pledged to get rid of all the problems that plague the people (kuwaondolea
wananchi mambo yote yanayowakera). The requirement of a ministerial fiat to sue the
government was one of those matters that has been plaguing the people. Now this tool of
oppression which the Tanu government in 1967 said it was undemocratic and outdated is
gone G forever, and it is now part of the legal folklore destined for the dustbin. The
Judiciary as an organ of the government has played its noble part to get rid of a matter
that has been plaguing the people for far too long. It is pertinent to remark here that the
government in the past and in this case had H insisted to be joined as a co-defendant not
as a philanthropist wishing to bail out their distressed civil servant but for their own
ulterior motives. They have been using the requirement of a ministerial fiat not as a shield
to protect their own legitimate interests but as a sword to frustrate genuine claims. In I
this case I told the State Attorney that the government's interests will be properly
safeguarded if they merely provided legal representation to the defen-
1993 TLR p91
dant but they refused, and insisted to be joined as co-defendants. In the case of Rev
Christopher A Mtikila v The Editor, Business Times and Mr Augustine Lyantonga
Mrema (18) the government tried to use that play of using the law as a sword to frustrate
the plaintiff's claims, but it was nipped in the bud by Samatta JK who held that the
government need not be joined as a co-defendant. In this B respect Dr Chris Maina Peter
in his article - 4 RADIC (1992) page 131 (supra) graphically illustrates the point raised at
157 thus:
`Practice indicates that even where a person in an attempt to avoid this
requirement of getting government approval, decides to sue the government officer alone
without joining the government, the government insists on being joined C as a
respondent. Worse still, once the government is joined, then it invokes the requirements
of the Government Proceedings Act 1974. Permission must be sought although the
government has joined the proceedings at its own request. This is exactly what happened
in the case of Patrick Maziku v G A Sebalili and Eight Others: Tabora High.' D
However in this case the play has boomeranged. The government has been hoisted by its
own petard.
Be that as it may, in the event the preliminary objection raised by the Republic is
dismissed. The suit E will proceed to trial as scheduled. Costs in the cause. Order
accordingly.
KUKUTIA OLE PUMPUN AND ANOTHER v ATTORNEY GENERAL AND
ANOTHER 1993 TLR 159 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CIVIL APPEAL NO. 32 OF 1992 B

23 July, 1993
(From the judgment and decree of the High Court of Tanzania at Arusha, Munuo, J.) C
[zFNz]Flynote
Constitutional Law - Suits against the Government - Statutory provision requiring the
Minister's consent to sue the Government - Whether constitutional - Section 6 of the
Government Proceedings Act 1967. D
[zHNz]Headnote
The appellants sought to sue the Government. They applied for the Minister's consent to
sue the Government as required by s 6 of the Government Proceedings Act 1967 but got
no reply. They then E called upon the High Court to rule 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 did not wish to file a written statement of defence
to the claim; instead they lodged with the Court a preliminary objection that the suit was
incompetent for want of the Minister's consent to sue the Government. The learned Trial
Judge ruled that section 6 of the Government Proceedings Act 1967 F was not
unconstitutional and dismissed the suit as incompetent. The appellants to the Court of
Appeal.
Held: (i) Section 6 of the Government Proceedings Act 1967 violates the basic
human right guaranteed under arts 13(3) and 30(3) of the country's Constitution, of
unimpeded access to the Court to have one's grievances heard and determined there; G
(ii) In considering any act which restricts fundamental rights of the individual,
such as the right to free access to the Court of law in this case, the Court has to take into
account and strike a balance between the interests of the individual and those of the
society of which the H individual is part;
(iii) A law which seeks to limit or derogate from the basic right of the
individual on grounds of public interest will not be declared unconstitutional if it satisfies
two requirements:
(a) that it is not arbitrary; and
(b) that the limitation imposed by such law is not more than is
reasonably necessary to I achieve the legitimate objective;
1993 TLR p160
A (iv) Section 6 of the Government Proceedings Act, 1967, as amended by
section 6 of Act No. 40 of 1974 is unconstitutional because it violates the basic human
right, guaranteed under arts 13(3) and 30(3) of the country's Constitution, of unimpeded
access to the Court to have one's grievances heard and determined there;
(v) Section 6 of the said Act is not saved by art 30(2) of the Constitution
because it does not B meet the two requirements;
 (vi) In terms of art 64(5) of the Constitution of the United Republic of
Tanzania s 6 of the Government Proceedings Act, 1967, as amended by Act No. 40 of
1974 is void, and is accordingly struck out for being unconstitutional.
[zCIz]Case Information
C Appeal allowed.
Cases referred to:
1. The Director of Public Prosecutions v. Daudi Pete [1993] TLR 22.
2. Peter Ng'omango v. Gerson M.K. Mwangwa and Attorney General, [1993]
TLR 77.
D 3. Himid Mbaye v. The Brigade Commander [1984] TLR 294.
4. Shabani Khamis v. Samson Goa and Another, High Court of Zanzibar,
Civil Case No. 18 of 1983.
5. Khalfan Abeid Hamad v. The Director of Civil Aviation, High Court of
Zanzibar, Civil Case No. 20 of 1986.
E A. Mughwai, for the appellants.
Mrs. A. Sumari, for the respondents.
Editorial Note: Section 6 of the Government Proceedings Act 1967 has since been
repealed and replaced so as to conform with this judgment: Government Proceedings
(Amendment) Act, 1994, F Act No. 30 of 1994.
[zJDz]Judgment
Kisanga, J.A., delivered the following considered judgment of the court:
G The appellants in this case sought to sue the Government in the High Court to
recover damages for trespass assault and conversion. The plaintiff alleges, among other
things, that the necessary fiat or consent to sue the Government had been sought but was
withheld. The requirement for consent H to sue the Government is imposed by s 6 of the
Government Proceedings Act 1967 as amended by Act 40 of 1974 (hereinafter to be
referred to simply as s 6). Upon consent being withheld, therefore, the High Court was
called upon by the appellants to rule on the constitutionality of s 6, and to hold that that
provision was null and void as against the Constitution of the United Republic of
Tanzania.
I The respondent Republic did not wish to file any written state-
1993 TLR p161
KISANGA JA
ment of defence to the claim; instead it lodged with the Court a preliminary objection that
the suit was A incompetent for want of the Attorney-General's consent to sue the
Government. The case was then adjourned, upon application by Counsel, for written
submissions after which the Court (Mrs J Munuo) ruled that s 6 was not unconstitutional,
and proceeded to dismiss the suit as being B incompetent. It is from that ruling that this
appeal now arises. Arguing the appeal before us were Mr A Mughwai, learned Advocate,
for the appellants, and Mrs A Sumari, learned State Attorney, for the respondent
Republic.
In the course of hearing the appeal, and during the submission by Mrs Sumari, some
doubt arose C whether consent to sue had, in fact, been sought and withheld as claimed
by the appellant's Counsel. However, this doubt was resolved when Counsel for the
appellants furnished the Court with documentary evidence that consent was in fact sought
and refused. Upon receipt of this information D Mrs Sumari stated that hitherto she had
been acting on wrong information sought from and supplied by the Attorney-General's
Chambers, Dar es Salaam that the appellants had not applied for any consent to sue the
Government. She added the because of such misinformation she did not E address the
real issue which was before the High Court, namely, the constitutionality of the
requirement of consent; instead she had concentrated on the contention that the suit was
incompetent for want of consent. Asked what course she proposed to adopt, now that she
was informed of the true position, she readily replied that the hearing of the appeal should
continue, F adding that during the short adjournment, she had prepared herself
sufficiently to respond to Mr Mughwai's submissions.
We continued with the matter even though we felt that the learned State Attorney needed
more preparation in order to assist the Court in proceeding with the appeal which raised
an important G constitutional issue.
The memorandum of appeal raised two grounds:
1. The Honourable Judge erred in law in not determining the real issue
before the Court, ie
The interpretation and Constitutionality of the provisions of s 6 of
the Government H Proceedings (Amendment) Act 10 of 1974 vis-à-vis the Constitution
of Tanzania.
2. The Honourable Judge erred in failing to hold that s 6 referred to in para 1
herein is unconsitutional, obsolete and that where there is a dispute between a citizen and
the Executive, the Executive cannot lawfully impede or obstruct access to High Court. I
1993 TLR p162
KISANGA JA
A On the first ground that the Trial Judge failed to consider and determine the issue
before her, that is, the constitutionality of s 6, we think that there is merit in the
complaint. Upon reading her brief ruling on the matter, covering just about two pages, it
becomes apparent that the learned Judge either did not comprehend the issue before her
or, if she did, she deliberately evaded it. Paragraph B 11 of the plaint states, inter alia,
that:
`The plaintiffs will contend at the trial that it is not in law necessary to obtain the
fiat as such requirement is null and C void as it seeks to contravene the basic structure
of the Constitution of Tanzania and its specific provisions.'
The appellants specifically called upon the Court to consider the validity of s 6 as against
arts 4(1), 108 and 13(6)(a) of the Constitution. These articles make provisions for
separation of powers, confer D jurisdiction on the High Court to hear and determine
complaints and provide for the basic right to a fair hearing. Counsel had submitted that s
6 contravened these provisions of the Constitution and accordingly invited the Court to
declare that section null and void.
E In disposing of the issue very briefly the Trial Judge simply said:
`Considering that the Government Proceedings Act 40 of 1974 was properly
enacted by Parliament as stipulated in article 97 of the Constitution of the United
Republic of Tanzania, it is sound law and does not infringe the provisions F of article 13
and/or article 108 of the Constitution.'
In our view this was, to say the least, a very superficial way of dealing with the issue
which was before the Court. for, the fact that s 6 was duly enacted by a competent
Legislature is no answer to G the question whether that section is valid or not as against
the Constitution. It is one thing for a provision of the law to be properly or validly
enacted by competent Legislature, but quite another for it to be constitutional; the two are
not the same.
H The appellant did not allege or even suggest that s 6 was improperly enacted by the
Legislation. Their claim was that s 6, although properly and duly enacted by the
Legislature, offended some provisions of the Constitution, the supreme law of the land. It
did so, the appellants continued, in a number of ways, primarily by denying them the
opportunity of having their grievances heard and I determined by the High Court which
was duly vested with such jurisdiction. There-
1993 TLR p163
KISANGA JA
fore what the appellants were asking for was a declaration under article 64(5) of the
Constitution that A s 6 was null and void because it was inconsistent with the supreme
law of the land. The learned Judge in merely stating that s 6 was sound law because it
was properly enacted by a competent Legislature, did not address herself squarely to that
issue, and to the extent of such omission she was clearly in error. B
The second ground is really an amplification of the first one. It specifies the matters
which the Trial Judge had failed to deal with and to decide upon. Mr Mughwai submitted
that s 6 is null and void and should be struck down because it violates the guaranteed
right, under the Constitution, of unimpeded C access to the Courts to have one's
grievances heard and determined. In this respect he specifically referred to arts 13(3) and
(6)(a) and 30(3) of the Constitution, the provisions of which we reproduce hereinbelow
for case of reference. D
`13(3) The civil rights, obligations and interests of every person and of the society
shall be protected and determined by competent courts of law and other state agencies
established in that behalf by or under the law. E
(4) ...
(5) ...
(6) For the purpose of ensuring equality before the law, the state shall make
provisions:
(a) that every person shall, when his rights and obligations are being
determined, be entitled to a fair hearing by the court of law or other body concerned and
be guaranteed the right of appeal or to another F legal remedy against the decisions of
courts of law and other bodies which decide on his rights or interests founded on
statutory provisions.
30(3) Where any person alleges that any provision of this part of this chapter or
any law involving a basic right or duty G has been, is being or is likely to be
contravened in relation to him in any part of the United Republic, he may, without
prejudice to any other action or remedy lawfully available to him in respect of the same
matter, institute proceedings for relief in the High Court.' H
Learned Counsel submitted that the combined effect of violating these provisions has far
reaching consequences. It means that s 6 places an obstacle or obstruction to access to the
Courts of Law. The section offends the principle of separation of powers by enabling the
Government to exercise a judicial function of deciding upon its civil liability or the extent
of such liability and hence to I
1993 TLR p164
KISANGA JA
A decide whether or not it should be sued at all. It enables the Government to be the
judge in its own cause. It also seeks to limit Government liability at the expense of the
rights of the individual. It offends against the principle which requires the Government to
be responsible and accountable to its people. It goes against the principle of openness or
transparency.
B Referring to article 30(2)(b) of the Constitution which permits derogation from
human rights in certain circumstances, learned Counsel was of the view that s 6 is not
saved because it is too general in its application.
C Replying to these submissions Mrs Sumari supported the decision of the High Court
that s 6 was not unconstitutional. If we understood her correctly, the thrust of her
argument was that although s 6 violates arts 13(3) and 30(3) of the Constitution, that by
itself did not make the said section unconstitutional because the complainant of the
violation has remedies open to him, such as orders D of mandamus and certiorari. In
other words, if the Government withheld the consent, the appellants could always seek
remedy for this by asking for an order of mandamus or certiorari compelling the
Government to give consent or not to withhold consent.
E With due respect to the learned State Attorney, this amounts to evading the issue. It
does not really grapple with and answer the question before us. The argument merely
echoes the provisions of article 13(3) of the Constitution. That article says that on
aggrieved person may seek redress in the High Court, and that this is without prejudice to
any other remedy which may be available to him. F This means that the complainant of
a violation of a basic human right is free to seek redress under article 30(3) although he
could equally well have sought relief by way of mandamus or certiorari. Therefore if the
appellants in this case chose to seek remedy, as they did, under article 30(3) they G were
exercising their constitutional right as to which procedure to follow in seeking redress.
There can be no justification whatsoever for saying that because s 6 presents an obstacle,
the complainant of a violation of this basic human right should be restricted to other
forms of remedy. A complainant H should be free to choose the best method legally
open to him to prosecute his cause.
This is so under article 30(3) of the Constitution. Section 6 which denies this
constitutional right cannot be said to be valid merely because the applicants could have
remedy elsewhere; that would amount to going around the problem instead of striking at
it directly. Our firm view is that the I offending section must be held and tested directly
against the Constitution itself.
1993 TLR p165
KISANGA JA
Mrs Sumari also claimed that s 6 was justified on grounds of public interests. By this we
understood A her to say that the section was saved by article 30(2) of the Constitution
which permits derogation from basic human rights in certain circumstances. She
contended that s 6 was necessary because it enabled the Government to regulate and
control the suits which are brought against it. She was of B the decided view that if s 6
were to be removed, that would open flood gates of frivolous and vexatious litigation
which would embarrass the Government and take up much of its time that could be better
spent on matters connected with the development and welfare of the members of the
society generally. In this regard the learned State Attorney urged that the Government
and the C individual are not, and cannot be, equal because the Government has the
responsibility of looking after the wider interests of the society at large.
On the material before us we have no difficulty in holding that s 6 violates the basic
human right of D unimpeded access to the Court to have one's grievances heard and
determined there. That right is guaranteed under arts 13(3) and 30(3) of the country's
Constitution reproduced earlier in this judgment. Indeed the Republic's view was that the
violation did not invalidate s 6 (the requirement of consent to sue) because where such
consent was withheld, the victim was not without remedy, he E could apply for orders
of mandamus or certiorari. However, we have rejected that argument for the reasons
given earlier in this judgment.
The more difficult question is whether s 6 is saved by arts 30 or 31 of the Constitution
which permit F derogation from basic human rights in certain circumstances. Article 31
which relates to measures taken during the period of emergency is obviously inapplicable
here. And as far as article 30 is concerned, only sub-art (2) is relevant; it provides that: G
`30(2) It is hereby declared that no provision contained in this part of this
Constitution, which stipulates the basic human rights, freedoms and duties, shall be
construed as invalidating any existing law on prohibiting the enactment of any law or the
doing of any lawful act under such law, making provision for - H
(a) ensuring that the rights and freedoms of others or the public interest are
not prejudiced by the misuse of the individual rights and freedoms;
(b) ensuring the interests of defence, public safety, public order, public
morality, public health, rural and urban development planning, the development planning,
the development and utili- I
1993 TLR p166
KISANGA JA
A zation of mineral resources or the development of utilization of any other
property in such manner as to promote the public benefits;
(c) ensuring the execution of the judgment or order of a Court given or made
in any civil or criminal proceedings.
(d) the protection of the reputation, rights and freedoms of others or the
private lives of persons involved in any Court proceedings, prohibiting the disclosure of
confidential information, or the safeguarding of the dignity, B authority and
independence of the courts;
(e) imposing restrictions, supervision and control over the establishment,
management and operations of societies and private companies in the country; or
C (f) enabling any other thing to be done which promotes, enhances or protect
the national interest generally.'
This Court had occasion to deal with a similar situation in the case of The Director of
Public D Prosecutions v Daudi Pete (1) where it considered the validity of s 148(5)(e) of
the Criminal Procedure Act denied bail to the accused in a criminal case in certain
circumstances. In that case it was recognised that because of the co-existence between the
basic rights of the individual and the collective rights of the society, it is common
nowadays to find in practically every society limitations E to the basic rights of the
individual. So that the real concern today is how the legal system harmonizes the two sets
of rights. In trying to achieve this harmony, the view has been that in considering any act
which restricts fundamental rights of the individual, such as the right of free access to the
Court of law in this case, the Court has to take into account and strike a balance F
between the interests of the individual and those of the society of which the individual is
a component.
Thus consistent with that approach, the Court in Pete's case laid down that a law which
seeks to G limit or derogate from the basic right of the individual on grounds of public
interest will have special requirements; first, such a law must be lawful in the sense that it
is not arbitrary. It should make adequate safeguards against arbitrary decisions, and
provide effective controls against abuse by those in authority when using the law.
Secondly, the limitation imposed by such law must not be H more than is reasonably
necessary to achieve the legitimate object. This is what is also known as the principal of
proportionality. The principle requires that such law must not be drafted too widely so as
to met everyone including even the untargeted members of the society. If the law which
infringes a basic right does not meet both requirements, such law is not saved by article
30(2) of the I Constitution, it is null and void. And any law that seeks
1993 TLR p167
KISANGA JA
to limit fundamental rights of the individual must be construed strictly to make sure that
it conforms A with these requirements, otherwise the guaranteed rights under the
Constitution may easily be rendered meaningless by the use of the derogative or
clawback clauses of that very same Constitution.
We shall now apply the two tests to s 6 to see if it is saved by article 30(2) of the
Constitution. B Section 6 provides that:
`6. Notwithstanding any other provisions of this Act, no civil proceedings may be
instituted against the Government without the previous consent in writing of the
Minister.' C The section carries a proviso which is not relevant to the facts of the present
case.
It is most apparent that the law is arbitrary. It does not provide for any procedure for the
exercise of the Minister's power to refuse to give consent to sue the Government. For
instance, it does not D provide any time limit within which the Minister is to give his
decision, which means that consent may be withheld for an unduly long time. The section
makes no provisions for any safeguards against abuse of the powers conferred by it.
There are no checks or controls whatsoever in the exercise of E that power, and the
decision depends on the Minister's whims. And, to make it worse, there is no provision
for appeal against the refusal by the Minister to give consent. Such law is certainly
capable of being used wrongly to the detriment of the individual. F
Turning now to the requirement that the law must not be drafted too widely, it is obvious
once again that s 6 does not pass that test either. The section applies to all and sundry
including even those against whom it was never intended. If, as contended by Mrs
Sumari, the object is to exclude or discourage the bringing of frivolous and vexations
litigation against the Government, it is not shown G how that object is achieved without
also limiting the right of persons who have genuine and legitimate claims against the
Government.
Even if the limitation imposed by s 6 could be selective, the pertinent question to ask is
whether there was really a compelling need for such limitation. In other words, in what
way is the limitation justified H in public interest so as to bring it within the purview of
article 30(2) of the Constitution? As noted before, Mrs Sumari's contention was that the
lifting of the limitation will encourage vexatious suits against the Government such as to
embarrass the Government and to take up much of its valu able time which could be
better spent elsewhere. But, apparently anticipating Mrs Sumari, Mr Mughwai in his
address earlier on, had argued that there was no such limitation imposed in relation to
suits against local governments where the only requirement is a month's notice to sue,
and yet the Courts have not been flooded with suits against local governments. When we
asked Mrs Sumari, to B respond to that argument she was still at ease to do so.
On this same point Mr Mughwai had submitted that the law in Zanzibar did not impose
such limitation, and yet it is not shown or claimed that the Courts in Zamzibar have
flooded with frivolous C and vexatious litigation against the Government. In another
dimension the learned Counsel charged that in this context s 6 was discriminatory and
hence unconstitutional. He referred us to the decision of the High Court (Mwalusanya J)
in the case of Peter Ng'omango v Gerson M K Mwangwa and Attorney-General (2) in
which this same issue of Ministerial fiat or consent had been raised. There D the learned
Judge cited three cases of the Zanzibar High Court in which no consent, but only a
month's notice, was required to sue the Union Government. The three cases are: Himidi
Mbayo v The Brigade Commander (3); Shabani Khamis v Samson Goa and Another (4)
and Khalfan Aboid E Hamad v The Director of Civil Aviation (5). Mwalusanya J took
restriction based on which Court, in the United Republic, one goes to seek remedy
against the Government of the same United Republic. We entirely agree with the learned
Judge that this is violative of arts 13(1) and (2) of the Constitution which provide that:
F `13 (1) All persons are equal before the law and are entitled without any
discrimination, to equal opportunity before and protection of the law.
G (2) Subject to this Constitution, no legislative authority in the United Republic
shall make any provision in any law that is discriminatory either of itself or in its effect.'
On a similar reasoning we reject Mrs Sumari's submission that because the Government
is H responsible for the wider interests of the society, then it should not be placed on an
equal footing with an ordinary person. We can find no justification for the distinction. We
think that the equality before the law envisaged in article 13(1) above embraces not only
ordinary persons but also the Government and its officials; all these should be subjected
to the same legal rules. While advancing the argument of a compelling need for limita-
1993 TLR p169
KISANGA JA
tion, Mrs Sumari again claimed that the requirement of consent was necessary in order to
give A Government the opportunity during which to study the proposed claims and,
where warranted, to consider settlement out of Court. This, she said, spares the
Government of the embarrassment of appearing in Court and saves its valuable time to
serve the wider public. We could find no substance B in this argument. The Government
can achieve all this within the normal procedures of bringing civil suits. Ordinarily before
a person decides to sue the Government, there must be some prior communication
between the person intending to sue the Government and the Government in which C
the former will have indicated sufficiently the nature and grounds of his claim. Thus if
the Government so wishes, it can assess the claim and, where warranted, consider
settlement out of Court during such pre-suit communication. The requirement of consent
to sue is really not necessary for the purpose of affording the Government time to assess
the claim and consider settlement out of Court. On the other hand we agree with the
learned Judge in Ng'omango's case D above that such restriction militates against the
principles of good governance which call for accountability and openness or transparency
on the part of Governments.
Therefore, unlike the learned Judge from whom this appeal arises, we find that s 6 of the
E Government Proceedings Act 1967 as amended by s 6 of Act 40 of 1974 is
unconstitutional for the reasons we have amply demonstrated above. The Republic has
totally failed to show that the said section is saved by the provisions of the Constitution
which allow for derogation from basic human F rights. In the circumstances we have no
alternative but to hold, in terms of article 64(5) of the Constitution of the United Republic
of Tanzania that s 6 of the Government Proceedings Act 1967 as amended by Act 40 of
1974 is void. It is accordingly struck down for being unconstitutional. The appeal is
allowed with costs, and the preliminary objection having failed, the suit is to proceed in
accordance with the law. - I