Peter Ng’omango v. Gerson M.K. Mwangwa and the Attorney General Civ no 22 of 1992 (free access to courts)

Peter Ng’omango v. Gerson M.K. Mwangwa and the Attorney General

High Court (Mwalusanya J.): December 11, 1992Civil Case No.22 of 1992

Constitutional Law-rights-free access to courts- right recognized by Constitution-Articles 13(1), 30(3), and 13(6)(a) Constitution- whether requirement of ministerial fiat unconstitutional- whether arbitrary and offends against doctrine of proportionality-whether discriminatory as not applicable in Zanzibar-whether militates against principle of accountability, openness and transparency in multiparty democracy

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

Held:

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

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

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

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

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

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

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

Legislation considered:

1. Constitution of the United Republic of Tanzania Articles 13(1), (3), (6) (a), 30 and 65

2. Government Proceedings Act No.16 of 1967

Cases referred to:

1.    Attorney General v. Lesinoi Ndeanai and Anor. [1980] TLR 214

2.    Clarke v. Karika [1985] LRC (Const.) 732

3.    DPP v. Ally Haji Ahmed and Ors. CAT Criminal Appeal No. 44

4.    DPP v. Daudi Pete [1993] TLR 22

5.    Golder v. UK Commonwealth Law Bulletin (1991) 17 CLB 1055

6.    Hamid Mbaye v. The Brigade Commander [1984] TLR 294

7.    Johnson v. Chief Constable of the RUC [1987] Q.B. 129

8.    Khalfan Abeid Hamad v. Director of Civil Aviation High Court of Zanzibar, Civil Case No. 20 of 1986 (unreported)

9.    Macauley v. Minister for Posts and Telegraphs [1966] IR 345

10.  Maneka Ghandi v. Union of India [1978] 2 SCR 621

11.  Ong Ah Chuan v. Public Prosecutor [1981] AC 648

12.  Precunier v. Martinez [1974] 416 US 396

13.  R v. Secretary of State for Home Affairs ex parte Bhajan  Singh

14.  Rev. Mtikila v. The Editor, Business Times and Anor. [1993] TLR 60

15.  Shaban Khamis v. Samson Goa and Anor. High Court of Zanzibar, Civil Case No. 20 of 1986

16.  Shah v. Attorney General (No.2) [1970] EA 523

17.  Silver case [1983] 5 EHRR 247

18.  Sunday Times Case [1979] 2 EHRR 245

19.  The Queen v. Big M. Drug Mart Ltd. [1986] LRC (Const.) 332 

20.   Wight v. Madagascar Case No. 115 of 1982