Federation of mines of association of Tanzania and 2 others v. AFGEM and 7 others, Civil case

1.Federation of Mines of Associations of Tanzania

2.The Arusha Regional Mines Association

3. Femata Miners Corporation Ltd.

    v.

M/S Africa Gem Resources (Afgem) and 7 others

High Court (Msumi J.): August 22, 2001

Misc. Civil Cause No. 23 of 2001

  

Constitutional Law-basic rights-enforcement- action to be founded on breaches of articles 12 to 29 of Constitution- alleged breaches to be constitutional wrongs rather than violations of general penal law- where alternative means for redress exist petition not sustainable

Constitutional Law-human rights- breach- allegations of breach not to be dismissed on mere rigidity of law- law to be construes liberally and with elasticity and not restrictively or rigidly-however parties to human rights case not to disregard compliance with legal requirement with impunity

Constitutional Law- human rights- breach- where action causing alleged breach taken in official capacity and not tort cannot sue in personal capacity-procedure of petition and originating summons under Basic Rights and Duties Enforcement Act alternative and not cumulative

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

Legislation considered:

1. Basic Rights and Duties Enforcement Act No. 33 of 1994 Ss. 5, 6(d), 8(2),

2. Constitution of the United Republic of Tanzania 1977 Articles  12-to 29, and 30(1)

Cases referred:

1.    Ismail G. Lazaro v. Josphine Ngomera Civil Appeal 2 of 1986(unreported)

2.    Lucas Matafu v. Hon. M. M. Songambele [1977] TLR 10

3.    Mtikila v. Editor of Business Times and Anor. [1993] TLR 60

4.    Registrar of Societies and 2 Ors. v. Baraza la Wanawake Tanzania and 5 Ors. (CA) Civ. App. No. 82 of 1999 (unreported)

Rweyemamu for petitioners

Mujulizi for 1^st to 6^th Respondents

Mdamu for 7^th Respondent

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