Kukutia Ole Pumbun and Another v. Attorney General and Another Civ no 32 of 1992 (access to court)

Kukutia Ole Pumbun and Another v.  Attorney General and Another Court of Appeal ( Kisanga, Mnzavas and Mfalila JJ.A): July 23 , 1993Civil Appeal No. 32 of 1992

Constitutional Law-fundamental rights-access to court- restriction-s.6 of Government Proceedings Act 1967-whether basis for restriction of right-whether restriction arbitrary, proportional and in public interest-whether violated articles 13(1) and (2) of the Constitution

Constitutional Law- equality- Government vis a vis individuals-whether equality before law that article 13(1) envisaged embraced not only ordinary persons but also Government and its officials- whether subject to same legal rules.

The appellants sought to sue the Government in the High Court to recover damages for trespass, assault, and conversion.  The necessary fiat or consent to sue the Government was withheld.  The High Court was called upon to rule on the constitutionality of s.6 of the Government Proceedings Act, 1967 as amended by Act 40 of 1974.

The respondent filed a preliminary objection that the suit was incompetent for want of the Attorney General’s consent to sue the Government.  The High Court (Munuo J.) dismissed the suit as being incompetent holding that s.6 of the Government Proceedings Act was not unconstitutional.  The appellant appealed.

Counsel for the appellant submitted that s.6 of the Government Proceedings Act was null and void and should be struck down as it violated the guaranteed right of unimpeded access to Courts contrary to articles 13(3), and (6), and 30(3) of the Constitution.  He further submitted that the combined effect of that was that the section offended against the separation of powers by enabling the Government to exercise a judicial function of deciding upon its civil liability or the extent of that liability and hence decide whether it should be sued or not.  This enabled the Government to be a judge in its own cause.  It also offended against the principle that requires the Government to be responsible and accountable to its people.  It went against the principle of openness or transparency.  He also submitted that s. 6 could not be saved by article 30(2) (b) of the Constitution, which permits derogation from human rights in certain circumstances, as it was to general in its application.  He further contended that the law in Zanzibar did not impose such limitation and therefore s. 6 was discriminatory and unconstitutional.

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

Held:

1.    There is not justification for a complainant of a violation of a basic human right to be restricted to other forms of remedy under article 30(3) of the Constitution.  A complainant should be free to choose the best method legally open to him to prosecute his cause.  Section 6 violated the basic human right of unimpeded access to the Court to have one’s grievances heard and determined guaranteed under articles 13(3) and 30(3) of the Constitution. 

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

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

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

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

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

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

Legislation considered:

1.    Constitution of the United Republic of Tanzania articles 4(1), 13(1),(2),(3) and (6)(a), 30(2) and (3), 64(5), and 108

2.    Government Proceedings Act , 1967 s.6

3.    Government Proceedings (Amendment) Act No. 10 of 1974

Cases referred to:

1.    Director of Public Prosecutions v. Daudi Pete [1993] TLR 22

2.    Himidi Mbayo v. The Brigade Commander [1984] TLR 294

3.    Khalfan Aboid  Hamad v. The Director of Civil Aviation Civil Case No. 20 of 1986

4.    Shabani Khamis v. Samson Goa and Another Civil Case No. 18 0f 1983

Sumari, State Attorney for the respondent

Mughwai for the appellant