Peter Ng’omango v. Gerson M.K. Mwangwa and the Attorney General
High Court (Mwalusanya J.): December 11, 1992 Civil
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
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
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
11.
Ong Ah Chuan
v. Public Prosecutor [1981] AC 648
12.
Precunier v. Martinez US
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
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
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