AMENDMENTS OF SECTION 4 OF THE BASIC RIGHTS AND DUTIES

ENFORCEMENT ACT OF 1994 AND ITS IMPLICATIONS TO THE PUBLIC

INTEREST LITIGATIONS IN TANZANIA

A COMMENTARY BY -DRAFT

Advocate, John Seka ,

Onesmo Olengurumwa and

Advocate, Mpale Mpoki

JULLY 2020

@Tanzania Human Rights Defenders Coalition

Table of Contents
EXECUTIVE SUMMARY........................................................................................................ii
CHAPTER ONE ....................................................................................................................... 1
BACKGROUND INFORMATION AND INTRODUCTION ................................................. 1
1.0 Introduction ................................................................................................................................. 1
2.0 Background to Enforcement of Constitutional Rights in Tanzania ....................................... 1
2.1 Constitutional Rights and Protection of the Constitution ....................................................... 1
2.2 About Human Right Enforcement in Tanzania ....................................................................... 2
2.2.2 Period After Enactment of the Basic Rights and Duties Enforcement Act ................... 5
2.2.3 Enactment of the Basic Rights and Duties (Practice and Procedure Rules) 2014 GN
304 Of 201 ................................................................................................................................. 7
CHAPTER THREE ................................................................................................................ 10
PROPOSED AMENDMENTS OF BRADEA AND ITS IMPLICATIONS......................... 10
3.0 Proposed Amendments and its Implications .......................................................................... 10
3.1 The proposed Amendments ...................................................................................................... 10
3.2 Objectives and Justification of the Proposed Amendments .................................................. 11
3.2.1 The Requirement for Locus Standi.................................................................................................. 11
3.2.2 Expanding the Immunity of Heads of States Organs ................................................................... 11
3.2.3 Exhaustion of available remedy ....................................................................................................... 11
3.3 The current Position of the law ................................................................................................ 12
3.3.1 Capacity to sue (Locus Standi) ......................................................................................................... 12
3.3.2 Immunity and Privileges from Prosecution .................................................................................... 14

3.4.1 Impacts to the Constitution ............................................................................................ 15

3.4.2 Impacts to Human Rights and Public Interest litigations ............................................ 16
RECOMMENDATIONS AND CONCLUSION .................................................................... 20
4.2 Conclusion......................................................................................................................... 21

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 EXECUTIVE SUMMARY
This commentary examines the impacts of recent amendments introducing major changes to
the Basic Rights and Duties Enforcement ACT of 1984, thus raise eye brows about possible
violation of constitutional rights. The amendments, which create avenues for crushing legal
remedies also introduce legal loopholes for shielding top national leaders from prosecution for
rights violation.

This analysis broadly sheds some light on the changes to the law, possible impacts on human
rights and public interest lawsuits, while offering suggestions to tackle the negative impacts.
As a sovereign State, Tanzania is governed by the rule of law under the Constitution of the
United Republic of Tanzania of 1977, whose 1984 bill of rights forms the basis for enforcing
human rights. As a member of the United Nations and signatories of numerous international
conventions, Tanzania has the obligation to respect and enforce human rights.

The recent amendments to the basic rights and duties enforcement Act of 1984 (BRADEA),
came from the fact that the government was not impressed by the discretion of High Court
judges to impartially dispense justice, thus, trying to curtail the power of the court to deal with
violation of the constitution. This reality can be traced from the objectives of these amendments
that were listed in the Bill that amended BRADEA.

BRADEA, which contains several problematic clauses, broadly laid down grounds to challenge
rights violations. The authors, therefore strongly believe the introduced amendments are being
used as a tool to suffocate mechanism for enforcing human rights since its objectives are clearly
to suppress enforcement of human rights and accountability. The authors concluded that
BRADEA was enacted to protect vested interests of the ruling elites against public interest
lawsuits and accountability. In their argument which is supported by facts, the authors, for
instance clearly state the Attorney General has failed to appreciate the objective of BRADEA
with respect to enforcement of constitutional rights.

Backed with rich history of human rights in the country, the authors generally agree the
objective of the proposed amendments, blatantly trample on the rights of the complainants in
public interest litigation. Although the president, Prime Minister and Chief Justice enjoy
unfettered immunity from prosecution under constitution for actions done once in power, they
are not immune to blatant violation to human rights. Human rights campaigners therefore, agree
the changes broadly undermine the duty of citizen to protect the constitution through public
interest lawsuits. Granting top judiciary officials, legislature and the executive immunity from
prosecution grossly erodes the concept of separation of powers, rule of law, good governance,
and accountability.

The authors believe if the amendments are enforced, the gains on human rights litigations will
make a nosedive since avenues for filing petition will further narrow down. The proposed
changes have far-reaching impact on the rule of law and principles of good governance. The
authors further argue the amendments threatens principles of equality before the law, separation
of power, accountability, public interest and sets a dangerous precedent for those in power to
tamper with the pillars of peace unity and democracy.

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 CHAPTER ONE

BACKGROUND INFORMATION AND INTRODUCTION

1.0 Introduction
On the 10th of June 2020 the Parliament of the United Republic of Tanzania passed and enacted
into law the Written Laws [Miscellaneous Amendments (No. 3) Act, 2020 which among other
things introduced changes to the Basic Rights and Duties Enforcement Act1. This Act was later
on assented by the President of Tanzania and gazetted by Government Paper No 6 of July
2020. The changes introduced have raised eyebrows amongst human rights defenders, the
public and human rights lawyers who complain that they impede the constitutional rights of
lodging human rights violation cases by way of Public Interest Litigation (PIL) in Tanzania.
These amendments introduce the principle of exhaustion of available remedies, locus standi
as well as affording top leaders of the country immunity against constitutional and human rights
petitions.

This commentary intends to highlight the changes introduced, the probable impact of the
introduced changes to the Constitution, human rights and public interest litigation in Tanzania.
This commentary also provides a way forward on what needs to be done to minimise the
intended negative effects of the amendments.

2.0 Background to Enforcement of Constitutional Rights in Tanzania

The United Republic of Tanzania is a sovereign country governed by a written constitution

entitled the Constitution of the United Republic of Tanzania of 1977 as amended2, hereinafter
the constitution. The constitution has in the course of its life underwent 15 amendments so far.
Some of the notable amendments made to the constitution were made in 1984 with the
introduction of the Bill of Rights vide the fifth constitutional amendments.3

2.1 Constitutional Rights and Protection of the Constitution

With the introduction of the Bill of Rights in Tanzania in 1984, it was clear that Tanzania was
now committed to the enforcement of human rights in Tanzania and however vide Act No 16
of 1984 The Constitution (Consequential, Transitional and Temporary Provisions) more so
Section 5(2) the justiciability of the basic rights was suspended for a period of three years.

It is worth to mention that prior to the enactment of the bill of rights, it was a common practice
to challenge affected rights through Judicial Review by issuing Orders such as certiorari,
Prohibition and Mandamus. Maybe at this juncture it is important to mention that all along the
courts in Tanzania were guided by common law when dealing with issues of Judicial Review

1
Cap 3 RE 2002
2
Cap 1 RE 2002
3
The amendment was introduced vide Act no 15 of 1984

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till when The Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act, CAP 310
(R.E 2002) was enacted. The enactment of the said law introduced the following procedural
changes in the regime of Public law, apart from the changes mentioned below the substantive
law and a greater part of procedural law remained the same as obtained under common law.
The High Court as from then was to issue orders of Certiorari, Prohibition and Mandamus and
not writs any more, secondly was joining the Attorney General in all Civil matters against the
Government and in the event the Government is not joined then the Court shall summon the
Attorney General and last but not least giving the power to the Chief Justice to make rules in
regard to the procedure and lastly provision of the requisite time for filling the applications.

2.2 About Human Right Enforcement in Tanzania

Tanzania being a member of United Nations and signatory to many UN and International
instruments has several obligations to protect, respect and fulfil human rights at National level.
These obligations and duties to states are well provided by International human rights law and
various human rights treaties signed by Tanzania. According to human rights scholars in
Tanzania, the way and the level in which human rights are respected, fulfilled and enforced at
National level depends on the very large extent the way the regime in power perceives human
rights and whether the country has that culture of respecting human rights. 4

In Tanzania the enforcement of Human Rights after the enactment of the Bill of Rights can be
divided into three defined phases namely:
2.2.1 After the expiry of the period set in Consequential Transition and Temporary
Provision
2.2.2 Period after enactment of the Basic rights and duties enforcement Act CAP 3
2.2.3 Period After enactment of the Basic Rights and Duties (Practice and Procedure
Rules)2014 GN 304 of 2014

2.2.1 After the Expiry of the Period Set in the Consequential Transition and Temporary
Provision

This period is characterised by first generation of Judges of the High Court who were bold and
who stood for the oath of office they took. Being aware that the Constitution vide Article 30(4)
empowers the High Court to deal with cases on violation of human rights, the Court started
hearing cases as mandated by the provisions in the Bill of Rights. The following are some of
the most celebrated public interest cases after the Bill of Rights and after enactment of
BRADEA;

• Among the first cases was the case of Chamchua Marwa vrs Officer in Charge
Musoma Prison Misc Criminal cause no 2 of 1988 Mwanza Registry (unreported) in
which the constitutionality of the Deportation Ordinance was being challenged. In this
case like many other cases during that period the issue of constitutionality of the Act
was raised sua motto by the Court.
• There being no procedure on how to deal with constitutional matters the court of Appeal
in the case of Attorney General Vrs Marwa Magori Civil Appeal No 95 of 1988 (

4
Majamba, H.I, Makaramba, V.R, Criss, M.P & Shivji, G.I (2004) Constitutional and Legal System of Human
Rights in Tanzania : A civic Source Book. At page 89.

2
unreported) accepted and confirmed the mode of dealing with constitutional petitions
in the following words:

“ Firstly all courts of law in this country are duty bound to take judicial notice
of all constitutional and legal matters. Secondly the courts in this country are
not courts of the parties but are courts of law and have thus inherent jurisdiction
to raise and consider matters which are necessary to a fair and just decision of
a case provided the parties are given a reasonable opportunity to the matters
raised”

• This case opened a Pandora box of Human Rights litigation as from then on
more cases were being heard and determined by the court. Bases in this category
were cases such as Daudi Pete versus Republic 1993 TLR 22 in which the
legality if the provisions of section 148 (5) (5) (e) of the criminal procedure Act
was challenged.
• Augustine Masatu versus Mwanza Textile Mills Ltd Civil Case no 3 of 1986
is another constitutional case based on Labour law where the provisions of
section 40 A of the security of employment Act was declared unconstitutional
for reasons that the section gave leeway for an employer to refuse to reinstate
an employee as that violated the right to work.
• The cases of Khasin Hamis Manywele versus Republic Criminal Appeal No
39 of 1990 Dodoma Registry unreported is a case which a constitutional issue
regarding the right to defence of an accused in cases with heavy sentences was
raised at the time of hearing the appeal, in a similar manner the case of
Reverend Christopher Mtikila and others versus Republic Criminal
Appeal No 90 of 1992 Dodoma Registry Unreported the High Court on
appeal was able to declare the provisions of Section 41 of the Police Force
Ordinance 1953 which prohibited a person from holding a meeting or assembly
after being warned not to do so by a police officer as unconstitutional.
• Mbushuu Mnyaroje versus Republic Criminal Sessions case No 44 of 1991
Dodoma Registry (unreported) is another case worth mentioning. In this case
the challenge of unconstitutionality of a statute was raised at the time of
sentencing. The accused person was charged and was convicted of Murder, the
sentence of which is death by hanging. In mitigation the Accused challenged
that the sentence of death by hanging was unconstitutional as it was cruel and
degrading. The High Court agreed with the accused and he was sentenced to life
imprisonment in lieu of murder and the section imposing the sentence of murder
was declared unconstitutional.
• The case of Attorney General versus Butambala (1993) TLR 46 marked a
departure on how the courts are to deal with cases regarding violation of rights
under the bill of rights. In this case the respondent who is an advocate wrote a
letter to the judge in charge asking him to access the fee in a legal aid matter.
The judge in charge thought that the advocates remuneration of between 120/=
and 500/= was grossly inadequate and that the rate contravened Article 23 of
the constitution. Thereafter the judge instructed the District Registrar to open a
Miscellaneous Criminal case, set it for hearing before himself and set hearing
of the application. The respondents on appearance raised a preliminary point of
law that there should be a petition in terms of Article 30(3) of the constitution.
The court of Appeal upon hearing the appeal held that “from the reading of

3
 Article 30(3) one has to institute proceedings for relief in the High Court and
the Kiswahili Version of the constitution, which is the controlling version does
not provide for other means”

• The case of Christopher Mtikila versus AG 1995 TLR 31 is another landmark

case determined during this period, one of the issue which came for
determination was locus standi to institute constitutional cases in this case it was
held in regard the issue of locus that:

(i) The orthodox common law position regarding locus standi no longer
holds good in the context of constitutional litigation in that the notion of
sufficient personal interest over and above the interest of the general
public has more to do with private law rather than public law; in matters
of public interest litigation the Court will not deny standing to a genuine
and bona fide litigant even where he has no personal interest in the
matter;
(ii) In the circumstances of Tanzania, if a public-spirited individual spring
up in search of the Court's intervention against legislation or actions that
pervert the Constitution, the Court, as guardian and trustee of the
Constitution, must grant him standing;
(iii) The principles of public interest litigation are expressed in the
Constitution of Tanzania by vesting in every person the capacity of an
individual by virtue of articles 12 to 24 of the Constitution, and the
capacity of a member of the community by virtue of articles 25 to 28 of
the Constitution, thereby equipping the individual with double standing
to sue;
(iv) The petitioner in this case has locus standi by virtue of article 30(3) of
the Constitution which entitles a person who alleges that a basic right is
being or is likely to be contravened in relation to him to institute
proceedings for relief in the High Court, as well as by virtue of article
26(2) of the Constitution which entitles every person to institute
proceedings for the protection of the Constitution and of legality;
(v) Article 26(2) of the Constitution is an independent and additional source
of standing according to which personal interest is not necessary in order
to institute proceedings; the article is tailored for the community and it
enacts into the Constitution of Tanzania the doctrine of public interest
litigation

This case is of judicial importance as apart from interpreting the meaning of article 26
(2) and Article 30(3) of the constitution it laid the foundation of the difference of the
two provisions and as a consequence thereof it opened the doors on the notion of Public
Interest Litigation (PIL) in our courts a concept which hitherto had no legal recognition.

We can safely state that during this early period of human rights litigation witnessed
substantial gains in jurisprudence both procedural and substantive and we can see the
only objections were the manner in which such cases had to be instituted in court and
secondly on locus standi of which the court ably gave guidance on those.

4
 The Government did not view positively the trend taken by the High Court judges in
these cases and according to Prof. Chris Peter Maina in his book Human Rights in
Tanzania Selected Cases and Material says

“The move of the High court had to be tamed vide the enactment of the basic
rights and duties enforcement Act 1994, which in effect curtailed the powers of
the court to deal with violation of the constitution”.

The view is equally shared by Dr Wambali who states that the Act was enacted to
discourage the fast pace of the positive enforcement of the Bill of rights, the act is
counterproductive to the smooth operation of the Bill of rights and the general
promotion of human rights in Tanzania.

2.2.2 Period After Enactment of the Basic Rights and Duties Enforcement
Act
As per the dictates of Article 30(4) of the constitution of the United republic of Tanzania and
in creating an enforcement mechanism of the Bill of Rights in Tanzania, in 1994 Tanzania
enacted the Basic Rights and Duties Enforcement Act No.3 of 1994 (BRADEA ) which came
into force on the 17th January 1995. BRADEA laid down procedures to challenge before the
High Court of Tanzania violations of the rights and duties contained under Article 12 to 29 of
the Constitution.

Noticeably under BRADEA one can glaringly see that contrary to the provisions of Article
30(4)(a) and (c) of the constitution the Act made the enforcement of fundamental rights more
complicated for example section 5 of the it did not explicitly state in what manner an
application challenging the breach can be brought before the court. The said section reads:

“An application to the High Court in pursuance of section 4 shall be made by

petition to be filed in the appropriate Registry of the High Court by originating
summons”.

• This section though clearly explained by the court of appeal in the case of the Registrar
of Societies & 2 others versus Baraza la Wanawake Tanzania and 5 others Civil
Appeal No 82 of 1999 Unreported still the courts did not find favour with the clear
and unambiguous holding of the Court of Appeal which interpreted section 5 of
BRADEA in the following words at page 7 of the typed judgement :

“ Section 8 of the BRADEA was another problematic section in the Act, the said section
provides for the High Court’s jurisdiction in Bill of Rights cases. Sub-sections 8(1)(a) and (b)
generally grant to the High Court the jurisdiction to hear and determine any application made on the
basis of section 4. Subsection 2 of the same puts a bar on the court not to hear any matter section if
it is satisfied that adequate means of redress for the contravention alleged are or have been available
to the person concerned under any other law or that the application is merely frivolous or vexatious”

• Tanzania Cigarette Company Ltd versus The Fair Competition Commission &
The Attorney General High court of Tanzania Dar es Salaam Registry
Miscellaneous Civil Cause No 31 of 2010 unreported is a case illustrative on how
the court failed to understand the import of section 8(2) of BRADEA a section which
thereafter has been used by the Attorney General as a point of objection in several cases
till when the High Court gave a proper interpretation of the same in the case of Jebra

5
 Kambole versus the Attorney General Misc. Civ. Cause No 27 of 2017 Dar es
Salaam Registry where it was held that :

“the challenge posed in this petition is that section 7 and 15 of the Act are unconstitutional. It is therefore
my considered view that Judicial review cannot determine the validity and constitutionality of these
provisions but rather the actions of the commissioners when applying the act.”

Under Subsection 3 another bar in which the High Court was given power to dismiss every
application brought under this Act, which it is satisfied, is brought only on the grounds that the
provisions of sections 12 to 29 of the Constitution are likely to be contravened by reason of
proposals contained in any Bill which, at the date of the application, has not become a law and
further the provisions of Part VII of the Law Reform (Fatal Accidents and Miscellaneous
Provisions) Act, which relate to the procedure for and the power of the High Court to issue
prerogative orders, was excluded as a means of obtaining redress in respect of matters covered
by the Act.

The constitution of the court under section 10 of the Act was another problem which now
required that a matter under the Act be heard and determined by a panel of three judges unless
there was a hearing as to whether or not the application is frivolous or vexation wherein it is to
be heard by a single judge. And in reaching a decision on a matter the decision of the court had
to be by majority.

Until the time of enactment of BRADEA the only High Court registries with more than two
judges were Dar es salaam, Arusha, Mwanza and Dodoma which in effect meant that for
someone to institute a case regarding such violations then he had to go to those registries and
institute his case. The jurisprudence of human rights and constitutionalism being in its infancy
in Tanzania It was not easy under the circumstances to have two judges in a quorum to agree
on a constitutionality of an issue

The issue of remedies available is another problem apparent in the act, firstly the law under
section 13(2) states that Where an application alleges that any law made or action taken by the
Government or other authority abolishes or abridges the basic rights, freedoms or duties
conferred or imposed by sections 12 to 29 of the Constitution and the High Court is satisfied
that the law or action concerned to the extent of the contravention is invalid or unconstitutional,
then the High Court shall, instead of declaring the law or action to be invalid or
unconstitutional, have the power and the discretion in an appropriate case to allow Parliament
or other legislative authority, or the Government or other authority concerned, as the case may
be, to correct any defect in the impugned law or action within a specified period, subject to
such conditions as may be specified by it, and the law or action impugned shall until the
correction is made or the expiry of the limit set by the High Court, whichever be the shorter,
be deemed to be valid.

Secondly, vide section 14(3) it is stated that, notwithstanding the provisions of the Civil
Procedure Code or of any other law to the contrary, where in proceedings under this Act which
do not involve continuous breach or personal injuries, the Government files a notice of
intention to appeal against any decision of a court, the notice shall, when entered, operate as a
stay of execution upon the decision sought to be appealed against.

It can be seen therefore that though the constitution mandated parliament to legislate on
ensuring the effective exercise of the powers of the high Court, the preservation and

6
enforcement of the rights, freedoms and duties in accordance with the constitution,(our
emphasis) in actual fact BRADEA was developed to discourage and impede the fast pace of
the positive enforcement of the Bill of Rights provisions in the High Court of Tanzania.

According to the late Prof Wambali BRADEA is counterproductive to the smooth operation
of the Bill of Rights and the general promotion of human rights in this country, which must be
discouraged and halted. 5 It is now very clear with this new amendment that BRADEA is now
used to suffocate mechanisms of human rights enforcement in Tanzania as alluded by various
scholars many years ago. The Objectives of BRADEA have never been certain and left a lot
of questions. Some scholarly works indicate that the ruling power has been using BRADEA to
limit the level of human right enforcement and accountability in Tanzania. 6

Both Prof Shivji and Wambali interpret BRADEA as an Act of Parliament that aims to limit
the scope of public law remedies. For instance, Wambali alluded that the provisions of sub-
section 8 (2) of the BRADEA bring about a serious problem of mixing public with private law
remedies. The Act was supposed to provide for public law remedies, since it is through such
remedies that a victim of an unconstitutional breach or action can effectively be vindicated. 78
Therefore, this leads us into conclusion that BRADEA Act was not enacted to improve the
ways in which Tanzanians can enforce human rights but rather it was enacted to protect the
ruling elites against public interest litigation and public accountability. Suffice is to state that
the enactment of BRADEA and its subsequent application was not in line with what was
intended by the constitution.

2.2.3 Enactment of the Basic Rights and Duties (Practice and Procedure
Rules) 2014 GN 304 Of 201

This period covered a period of third generation Judges, who unlike the first generation judges
are wary of treating public law litigation as any other branch of law. They consider, wrongly
so, giving decisions against the government when it violates the constitution is unlawful or
would create a conflict between the three pillars of the state. The enactment of the rules of
procedure made under section 15 did not take into account the main principle to the rules of
procedure that Rules of procedure has been described as hand maid and not mistress of law,
intended tie and facilitate the cause of justice and not to govern or obstruct it.

5
Wambali , M (2009) ‘The Enforcement of Basic Rights and Freedoms and the State of Judicial Activism in
Tanzania’ available at http://www.jurisafrica.org/docs/articles/constitution_tanzania_article.pdf

6
Ibid ( First of all it is important to note that this statute was part and parcel of the government’s reaction at the
end of 1994 against the High Court’s independent and progressive interpretation during the period following the
drastic changes in the Tanzanian political system in 1992.The courts were seen to be working against any
distortion by the executive of the original substance of the Bill of Rights. The legislative endeavours enshrined in
the Eleventh Constitutional Act 1994 and related legislation were particularly related to the BRDE Act. These
implicitly had reversed the judicial decisions in Mabere Marando and Another v The Attorney General16 and
Christopher Mtikila v The Attorney Genera . See High Court civil case no 168 of 1993, Dar Es Salaam registry
(unreported) (Marando) and [1995] TLR 31 (Mtikila). )

7
Wambali , M (2009) ‘The Enforcement of Basic Rights and Freedoms and the State of Judicial Activism in
Tanzania’ available at http://www.jurisafrica.org/docs/articles/constitution_tanzania_article.pdf
8
Shivji, I (2020) Tanzania Abolishes Public Interest Litigation. A Comment on the Amendment of Basic Rights
and Duties (Enforcement) Act CAP 3 .R.E.2002). Emeritus Professor of Public Law.

7
The said section 15 vested power on the Chief Justice to make the rules of procedure and that
being the case one would have expected that the enactment of the rules would, to a large extent,
take care of the grey areas which have obstructed the attainment of rights from the date of the
enactment to the time when the process of enacting the rules took place so that they are in line
with the spirit and intents as contemplated by the constitution, the law in the preamble and the
clear pronouncement of the Court of Appeal in the Case of Registrar of Societies (supra) at
page 5 that :

“the current approach to human rights matters is that complaints of breaches of

violations of fundamental or basic rights and freedom should be given unimpeded
access to the courts to seek redress. Deliberate efforts should be made to facilitate that
access rather than to frustrate it”

This basis of such expectation is that the Chief Justice being the Head of the Judiciary and the
Court being the institution administering the legislation was in a better position to see the grey
area in the Administration of the Act.

Rule 4 of the rules did not cure or rather was not legislated in line with the wise and clear advise
of the Court of Appeal instead the draftsman created more confusion by stating that “ any
petition filed in accordance with the provisions of the Act shall be by way of originating
summons”. Surely a petition cannot be filed by originating summons a petition is filed by a
petition. The rules further unnecessarily tried to put a scheme on the days of happening of
events in the conduct of the case, this has been wrongly used as the court now equates the rules
to the law of limitation act, while in actual fact it was meant to speed up the hearing of the case
and not to punish someone who is not in compliance.

Rule 7 on the other hand encourages putting up points of preliminary objection in that it states
that a person intending to challenge the court’s jurisdiction to hear the petition shall file a
notice of preliminary objection when filling the reply to the petition. Sub section 2 states that
the preliminary objection by the respondent challenging the court’s jurisdiction shall be heard
by a single Judge. The wording creates more problems that the ones it intend to solve. In the
act the only impediment to hearing of such cases is when it is frivolous and vexatious but here
the draftsman has gone further to the issue of the jurisdiction of the court.

Another provision of the rule worth mentioning is rule 7 (4) of the High Court Registry Rules,
GN 164 of 1971, though this rule is not part of the legislative and legal regime of BRADEA.
These rules have now most often been used administratively by the Court in the management
of all cases brought under BRADEA cases which have been filed in registries of the high Court
other than Dar es Salaam, the provision states that:

“ the Court may at any time on application or of its own motion transfer any proceedings
from one Registry to another and any proceedings so transferred, and all documents
shall be filed accordingly”

Using this provision of the rules the High Court has now put an administrative arrangement
that all cases falling under BRADEA and which have been filed in registries other than the
main Registry have to be transferred to the Main Registry. Strange enough the main registry at
Dar es Salaam has specific judges and as such most of the cases under BRADEA will be heard
and determined by the same judges. The dangers of such an administrative arrangement can be
seen in the case of Tito Magoti & Another versus Attorney General Misc Civil Cause No

8
6 of 2020 wherein the panel of three judges opted to strike out a petition without a Point of
Preliminary objection from the respondent and worse still without affording the Petitioner the
right to be heard.

In that case the court stated “ since it is not in dispute that there are two public interest matters
pending in this court challenging the constitutionality of section 148(5) of the Criminal
Procedure Act Cap 20 and of such case (i.e Misc Civil Cause No 35 of 2019 ) was drawn and
filled by the same Law firm I.e. LawAge Consult and Associates) as is in the present petition
which also challenges the constitutionality of section 148(5) of the criminal Procedure Act Cap
20, we for such reasons strike out the present petition with no orders as to cost.

Lastly the draftsman forgot, either by design or default, that the main Act is silent on the
enforcement procedure on the judgements of the court, rendering it difficult for the decree
holder to enforce the decree of the court. Under normal circumstances one would expect the
draftsman to include the same in the Act something which he did not do, all this cumulatively
lend support in the contention raised earlier that it was and it has never been the intention of
the state to see that the people enjoy their fundamental rights.

At this juncture we can safely state without fear of contradiction that the Courts, the Attorney
General and the counsel for the latter namely the Solicitor General have failed to appreciate
that the object of BRADEA is to provide for the procedure for enforcement of constitutional
basic rights, for duties and for related matters. This statement is well captured under the
Preamble to the act as well as rule 2(2) of the Rules which provide that:

“These rules shall be applied with a view to advancing and realising the basic rights
And duties contained in the constitution”

Suffice is to state at this juncture that the preamble to BRADEA above is resorted to by virtue
of Section 25 of the interpretation of laws Act which states that;

“The preamble to a written law forms part of the written law and shall be construed as
a part thereof intended to assist in explaining its purport and object.”

It follows therefore that reading the preamble to the Act and rule 2(2) one can come to a
conclusion that the legislation put in place are meant to provide for a procedure for enforcement
of constitutional rights and while doing so the focus or view should be advancing and
realisation of the basic rights.

9
 CHAPTER THREE

PROPOSED AMENDMENTS OF BRADEA AND ITS

IMPLICATIONS

3.0 Proposed Amendments and its Implications

Having gone through the history of the human rights litigation and the inference drawn on the
part of the state, this chapter presents the current position of the law, the recent amendments
and their implications to the constitution, human rights and public interest litigation in
Tanzania. This part of analysis will also present the main objectives of the proposed
amendments to BRADEA.

3.1 The proposed Amendments

On 29.05.2020 the Government of the United Republic of Tanzania through the Chief Secretary
published in the Government Gazette No. 01 Volume 101, A Bill entitled The Written Laws
[Miscellaneous Amendments (No. 3) Act, 2020 containing proposals to amend various enacted
laws including the Basic Rights and Duties Enforcement Act9. The proposal which was set to
be tabled to parliament essentially sought to change amongst other sections, section 4 of the
Basic Rights and Duties Enforcement Act. The proposed changes under section 7 of The
Written Laws [Miscellaneous Amendments (No. 3) Act, 2020 were couched as follows:

7. The principal Act is amended in section 4, by-

a) designating the contents of section 4 as subsection (1);

b) adding immediately after subsection (1) as designated the following:

“(2) Without prejudice to the provisions of the Commission for Human Right
and Good Governance Act, relating to powers of the Commission to institute
proceedings, an application under subsection (1) shall not be admitted by the
High Court unless it is accompanied by an affidavit stating the extent to which
the contravention of the provisions of Articles 12 to 29 of the Constitution has
affected such person personally.
(3) For avoidance of doubt, a person exercising the right provided for under Article
26(2) of the Constitution shall abide with the provisions of Article 30(3) of the
Constitution.
(4) Notwithstanding any provisions to the contrary, where redress is sought against the
President, Vice-President, Prime Minister, the Speaker, Deputy Speaker or Chief
Justice for any act or omission done in the performance of their duties, a petition
shall only be brought against the Attorney General.
(5) A petitioner shall, prior to seeking redress under this Act, exhaust all available
remedies under any other written laws.”

9
Cap 3 RE 200 2

10
3.2 Objectives and Justification of the Proposed Amendments

According to the drafters of the recently passed BRADEA amendments, the proposed
amendment contained the following statement as the reasons for amendments: -

3.2.1 The Requirement for Locus Standi

The revised provisions amended section 4 the Basic Rights and Duties Enforcement Act, Cap.3.
Those amendments empower the court to reject an application which has not complied with
Article 30(3) of the Constitution of the United Republic which requires a person who intends
to institute proceedings under Part III of the Constitution to establish that his right or duty
owed to him has been, is being or is likely to be violated.

The law aims to make absolute the requirement that demands demonstration by the complainant
that he has been affected personally by an infringement of his fundamental rights (basic human
rights) as well as breach of his statutory right. That is to say the Bill is directly removing the
responsibility of people to protect the constitution as provided by Article 26 (2) of the
Constitution even if the infringement doesn’t affect you directly hence abolition of public
interest litigation.

3.2.2 Expanding the Immunity of Heads of States Organs

The law further introduced a new subsection,10 which requires all suit or matters against the
Heads of Organs of the State to be instituted against the Attorney General. These new
amendments intend to enhance the provisions relating to immunity of Heads of Organs of
States. [Emphasis ours]. Removing the prevailing practice that enables petitioners to sue the
Heads of State Organs in their names and or in the names of their office11 by invoking the
Heads of State Organs statutory privileges and in instead filing petitions in the name of the
Attorney General.

3.2.3 Exhaustion of available remedy

Another amendment introduced is the amendment of section 4 by adding a section reading as

follows, “a petitioner shall, prior to the seeking redress under this Act, exhaust any available
remedy under any written law” This section read together with section 8(2) of the Act which
reads “the High Court shall not exercise its powers under this section if it is satisfied that
adequate means of redress for the contravention alleged are or have been available to the
person concerned under any other law” and the way in which the courts have been narrowly
and restrictively interpreting the law will make it almost impossible for cases to survive in
court.

10
11
The intended Heads of State Organs are President, Vice-President, Prime Minister, the Speaker, Deputy Speaker
and the Chief Justice.

11
3.3 The current Position of the law
Having noticed the objectives of the passed changes, it is incumbent to take a glance at the
prevailing state of the law with regard to capacity to sue and be sued for constitutional
violations. This part will present the current position of the law and practice with regard to the
three main objectives of the proposed amendment.

3.3.1 Capacity to sue (Locus Standi)

The question of capacity to sue, popularly known as locus standi has been the forefront of
constitutional litigation in Tanzania. The High Court of Tanzania has grappled with the
question of capacity while seeking to interpret Article 26(2) and 30(3) of the Constitutional of
the United Republic of Tanzania, which are stated to be the bedrock of locus standi.

In all the reviewed constitutional petitions that have raised the issue of capacity to sue the
questions have been:-
a) Whether an individual can sue for breach of fundamental rights without demonstrating
the extent of the alleged contravention on him personally and,

b) Whether it is possible for corporate bodies (inanimate) to sue for alleged breaches of
fundamental rights and,

Through a string of court pronouncements especially the case of Mtikila vs Attorney General
(1995) the court laid down the following principles to address the question of locus standi:-

a) That individuals and corporate bodies can sue and mount constitutional petitions
without demonstrating personal injury to themselves only through the avenue provided
under Article 26(2) on the basis of the Concept of Public Interest Litigation12 and,

b) That only individuals’ persons (with the exclusion of juristic persons) can petition for
alleged violations of their fundamental rights under Article 30(3) of the Constitution13.

12
The leading case on this is the High Court decision in Rev. Christopher Mtikila versus Attorney General (1995)
TLR 31 at page 45 where the court through Lugakingira, J (as he then was) stated: I hold art 26(2) to be an
independent and additional source of standing which can be invoked by a litigant depending on the nature of his
claim. Under this provision, too, and having regard to the objective thereof, the protection of the Constitution and
legality of a proceeding may be instituted to challenge either the validity of a law which appears to be inconsistent
with the Constitution or the legality of decision or action that appears to be contrary to the Constitution or the
law of the land. Personal interest is not an ingredient in this provision; it is tailored for the community and falls
under the sub-title 'Duties to the Society.' It occurs to me; therefore, that art 26(2) enacts into our Constitution
the doctrine of public interest litigation. It is then not in logic or foreign precedent that we have to go for this
doctrine; it is already with us in our own Constitution.
13
The leading decision on this matter appears to be the High Court of Tanzania decision entitled Legal & Human
Rights Centre & Another versus Hon Mizengo Pinda & Another (Misc. Civil Cause No.24 of 2013) reported as
[2014] TZHC 1 through TANZLII at https://tanzlii.org/tz/judgment/high-court-tanzania/2014/1-0. In this
judgment, Jundu JK (as he then was) speaking for the court at page 27 of the typed decision noted the following:
As corporate bodies, the petitioners could not invoke rule 71 of the Standing Orders. Had their complaints herein
been in relation to themselves and not others, it would have been open for them to invoke section 4 of Cap 3 and
file a constitutional petition pursuant to article 30 of the Constitution. However, since the relevant provision
covering their situation would have been article 26 (2) of the Constitution (which they have not cited), and the
procedure under section 4 of Cap 3 does not apply to public interest litigation, they have no locus standi to
institute this case.

12
 “Personal interest is not an ingredient in this provision; it is tailored for the
community and falls under the sub-title 'Duties to the Society.' It occurs to me;
therefore, that art 26(2) enacts into our Constitution the doctrine of public interest
litigation. It is then not in logic or foreign precedent that we have to go for this doctrine;
it is already with us in our own Constitution”.14
Therefore, the current position of the law, the Constitution (Article 26 (2) and the case law
provide that individual have locus in courts of law to fill constitution petitions for public
interest even if they are not directly affected. According to Prof Issa Shivji Article 26 (2) of the
Constitution, confers duties to the society to protect the Constitution and the laws of the land
(Duties to the Societies).15
Other legal jurisdiction like the Constitution of Kenya, Uganda and South Africa provide
similar position with regard to locus standi in constitutional cases. The position of Kenya,
Uganda and South Africa is clearly evidenced by the following provisions of their
constitutions;
(a) The Constitution of Kenya of 2010, Article 22;

(1) Every person has the right to institute court proceedings claiming that a right or
fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is
threatened.

(2) In addition to a person acting in their own interest, court proceedings under clause
(1) may be instituted by—
(a) a person acting on behalf of another person who cannot act in their own name;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.

(b) The Constitution of Uganda, Article 50 (1)

Any Person who claims that or other rights or freedoms guaranteed under the Constitution
has been infringed or threatened, is entitled to apply to a competent court for redress
which may include compensation.

(c) The Constitution of the Republic of South Africa of 1996, Article 38;

Anyone listed in this section has the right to approach a competent court, alleging that
right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons who may approach a
court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.

14
Ibid.
15
Shivji, I (2020) Tanzania Abolishes Public Interest Litigation. A Comment on the Amendment of Basic Rights
and Duties (Enforcement) Act CAP 3 .R.E.2002). Emeritus Professor of Public Law.

13
 3.3.2 Immunity and Privileges from Prosecution
Currently according to Article 46 of the Constitution the President has immunity against civil
and criminal cases and the same applies to Speaker of the Parliament, Prime Minister and the
Chief Justice. The Constitution prevents criminal proceedings against those top leaders for
actions done while in power, but Article 26 (1&2) the constitution allowed them to be sued for
matters related to violation of the constitution and human rights.

Like the question of locus standi, questions around immunity to prosecution have also had their
fair share within the corridors of the court through a string of decisions. However, of recent,
the dust appears to have settled through judicial pronouncements in the case of Zitto Kabwe
versus President of Tanzania and 3 others Misc. Civil Cause No 1 of 2020 Dar es salaam
Registry Unreported where it was held that:

“ the rule has always been that the actions of the Government and the president can be
measured against the constitution and that is the logic behind the enactment of Article
26(2) of the constitution. It follows that, actions of the President and the Government
as such can be tested against the Constitution by any person through public interest
litigation under Article 26(1) as was in this case”

From the pronouncements of the above-mentioned cases, it would appear that:-

a) That is possible to sue the President of the United Republic of Tanzania in his official
capacity for any civil matter done while performing his duties as President16.

b) That it is not possible to institute a civil suit against the President in his own name for
anything done while in the office.

c) That the Prime Minister of the United Republic of Tanzania is capable of being sued
for anything done or said in Parliament unless Article 100(1) of the Constitution
restricts such an action17.

d) That the Prime Minister of the United Republic of Tanzania is capable of being sued
for anything done or said in Parliament unless such an action is restricted by Article
100(1) of the Constitution.

e) That the Chief Justice of the United Republic of Tanzania is capable of being sued in
his capacity as the Chief Justice and Head of the Judiciary18.

16
The leading decision on this matter is the case of Zitto Zuberi Kabwe vs The President of the United Republic
of Tanzania & Others (Misc. Civil Cause No.1 of 2020) [2020] TZHC 72; (18 March 2020) reported in TANZLII
through the following link: https://tanzlii.org/tz/judgment/high-court-tanzania/2020/72-0. In this judgement, the
High Court through Mlacha J, had the following to say at page 21 and 22 of the typed judgment,.....It is therefore
clear, with respect to the learned Principle State Attorney, that Article 46 (2) has no restriction to constitutional
petitions against actions of the President of the United Republic of Tanzania done in his official capacity. If there
was such a restriction, in my view, the whole purpose of rule of the law would be meaningless. The rule has always
been that, the actions of the government and the President can be measured against the constitution and that is
the logic behind the enactment of Article 26 (2) of the constitution. It follows that, actions of the President, and
the Government as such can be tested against the constitution by any person through public interest litigation
under Article 26 (2) as was in this case.
17
The leading decisions on this matter is the case of Mizengo Pinda…..
18
The leading case for this is the case of Samson S. Rumende versus the Chief Justice of Tanzania, Misc. Civil
Cause No. 75 of 2005 (HC)(Dar es salaam)(Unreported), in which the petitioner had sued the Chief Justice
following the CJ decision not to enrol him as an advocate of the High Court of Tanzania.

14
3.4 THE IMPACT OF THE PASSED AMENDMENTS

This sub-chapter presents the impacts of the passed amendments to the Constitution, human
rights and the field of public interest litigation in Tanzania. According to this commentary, the
new amendment of the BRADEA contravenes Article 26 (1) and (2) of the Constitution;
deprives the rights and duties of citizens to defend the constitution by abolishing public interest
litigation in Tanzania. On the other hand, more than 200 Civil Society Organizations in
Tanzania and other international organizations have comprehensively analysed the
implications of these amendments not only to human rights but also to the work of human
rights defenders, human rights lawyers and and Human Rights NGOs in general.

3.4.1 Impacts to the Constitution

• These amendments unnecessarily consolidate Articles 26(2) and 30(3) of the
Constitution and make a general requirement of showing own fundamental rights that
has been breached as per 30 (3) while undermining the constitutional duty of all citizens
to protect the constitution. According to Prof Shivji, these two articles of the
constitution are independent of each. 19 The current amendment of BRADEA has
illegally amended Article 26 (2) of the Constitution by imposing what was not intended
by the framers of the constitution.
• The passed amendment will have impact on the protection of the constitution. Article
26 of the Constitution of Tanzania convers constitutional duty to all citizens of Tanzania
to protect the Constitution but with the current amendment this obligation and right to
citizens of Tanzania is now curtailed hence make these amendments unconstitutional.
• The Responsibility of Citizens individually or through their NGOs to protect the
Constitution through public interest litigation is now eroded by these amendments and
narrowed down to only those directly and personally aggrieved by those violations.
• According to analysis by human rights NGOs, the bill that was passed into law affords
top Judiciary official, the Speaker of the Parliament, the President and key government
officials’ immunity from prosecution, even for constitutional violations. This erodes the
concept of responsibility and accountability for your actions while in office. Public
officials personally take oaths to uphold and defend the constitution and, in these
amendments, they are being provided immunity for violating their own oath.
• The proposed changes brought about with the introduction of to section 4(3) of the
BRADEA seeks to remove the possibility of filing a constitutional petition directly
against the office of the President, Vice-President, Prime Minister, the Speaker, Deputy
Speaker and the Chief Justice. With the anticipated changes, it will be the Attorney
General who shall stand in their names.

19
When a public-spirited person or organisation brings a petition under Article 26(2), the matter is in public
interest to vindicate the Constitution and the laws of the land. This is now well-recognised in many
Commonwealth jurisdictions (India, Bangladesh, Pakistan, Ceylon, Singapore, Nigeria, Kenya, Uganda, South
Africa and until now Tanzania) in the Global South under the rubric of Public Interest Litigation (PIL). Whereas
the doctrine of PIL elsewhere was developed by courts, in Tanzania, Judge Lugakingira decided, it was provided
upfront in the constitution itself.

15
 • By positing a hierarchy of articles in the Constitution, the amendments proposed to the
Basic Rights and Duties Enforcement Act, (CAP. 3) challenge the position of the
Constitution as the mother law and set the precedent for parliamentary legislation with
the authority to over-ride constitutional provisions. This threatens the basic structure of
our Constitution and may thus immediately open room for legal challenge against the
amendments

• Speaking with the eyes of separation of powers, a move to designate the Attorney
General as the person to be sued will make some sense in a suit against the President,
Vice-President and the Prime Minister but it wouldn’t make sense in a suit against the
Speaker, Deputy Speaker and the Chief Justice who are by and large independent of the
Attorney General and certainly not their advisor. It would make great sense that the
Speaker be represented by and in the name of his Chief Legal Advisor.

• On the same vein, it would appear that there is no one other than the Chief Justice, who
shall stand in for Chief Justice.

• On the other side the amendments will bring confusion on its implementation as
admission of a matter in court is the mandate of the Registrar and it is not a judicial Act
but more of an administrative Act, Issues of affidavit stating the extent of contravention
is a matter of evidence which is a judicial Act. If the section is taken in its plain meaning
means that it will subject, he Registrar to indulge in judicial matters of which Registrars
are not vested with. Powers of the Registrar are vested by the Civil Procedure Code
under Order XLIII rule 1 (a) to ( l )

• The Pre-admission Judicial powers in Civil matters are well contained in the Civil
Procedure Code under Order VII rule 10 and 11 which is categorised in return and
rejection. The amendments are silent as to the “extent” of the extent, what will happen
when the judicial or administrative officer while exercising the judicial or administrative
powers will eventually be required to do. The law allows rejection of plaint and its
procedure and the return of plaint and its procedure nothing has been mentioned on the
attachment of the affidavit and its procedure. The absence of such a procedure may cause
an abuse by the person with the powers to decide on the admissibility of the application.

• The principle of Exhaustion of available remedies is a principle which cannot be

applicable for a simple reason that there is only one remedy for the enforcement of
fundamental rights and the remedy available is the one found under the constitution
BRADEA and the Rules. We cannot phantom another available remedy for the
enforcement of the violation of the constitutional rights.

3.4.2 Impacts to Human Rights and Public Interest litigations

• It would appear that the envisaged changes are being influenced by the resurgence of
human rights petitions against the government by civil society organisations and
concerned individuals. The wish to retaliate public interest litigation is not a new
phenomenon in Tanzania, as stated above BRADEA was enacted with undisclosed
motive to end judicial activism under single judge mechanism before 1994. After
Mtikila Case in 1995 the Government went to Parliament to Amend the Constitution.

16
 In 2019 the Government of Tanzania withdrew the declaration that allows the access of
individual and NGOs to access the African court of human and people’s rights.
• If these amendments are implemented the gains in human rights litigations may
experience a downward trend on account of the fact that the avenues to file petitions
will be narrowed down to individuals and juristic persons who have personal interests
in the violation of human rights.
• In the amendments proposed to the Basic Rights and Duties Enforcement Act, (CAP.
3) and the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, (CAP.
310), citizens are denied the opportunity to directly hold their national leaders
accountable through the courts of law. Similarly, in the proposed amendment to the
Judiciary Administration Act, (CAP. 237), all judicial employees are afforded wide
immunity from prosecution. This essentially creates a class of government officials who
are above the law in contravention of Article 13 of our constitution. The proposed
amendments do not provide any justification for “enhanced immunity” of the named
officials. 20
• It is submitted that the proposed changes may undermine the role of the Judiciary by
rendering all judicial pronouncements in the area meaningless. For instance, in Mtikila
case of 1995, the court pronounced that any concerned citizen can bring a constitutional
petition before the courts of law without necessarily showing how individually he has
been aggrieved. This overruling of the court decision by the parliament is again an
insult to the principle of separation of powers and independence of the judiciary.

“It is unusual in self-respecting constitutional democracies to overrule decisions of

courts. To overrule or negate the effect of court decisions by legislation amounts to one
branch of the state (the legislature) interfering with and usurping the power of the other
branch of the state (the judiciary).’ Prof Shivji

• Amendments proposed to the Basic Rights and Duties Enforcement Act, (CAP. 3)
essentially prohibit the filing of public interest cases. More insidiously the proposed
amendments suggest that we are not responsible for standing up for the rights of our
fellows but instead we should only seek redress when our own rights are denied. This
contravenes section 26(2) of the Constitution which states that “Every person has the
right, in accordance with the procedure provided by law, to take legal action to ensure
the protection of this Constitution and the laws of the land.”
• The Current amendment of BRADEA imposes private law rules of locus standi to
public law litigations. The requirement imposed in private law in order for someone to
fill a case is not the same when someone opens a constitutional case under public law.
This was heavily emphasised by Justice Lukagingira as he was quoted by Prof Shivji
below: 21

“Judge Lugakingira in very explicit terms, for the first time, clearly and unambiguously
recognised and underscored the difference between private and public law and that the

20
Analysis of the Written Laws (Miscellaneous Amendments) (No.3) 2020. Submitted by: 220 CSOs to the
Parliamentary Committee on Legal and Constitutional Affairs. Submitted on June 06, 2020

21 21
Shivji, I (2020) Tanzania Abolishes Public Interest Litigation. A Comment on the Amendment of Basic Rights
and Duties (Enforcement) Act CAP 3 .R.E.2002). Emeritus Professor of Public Law

17
 rules of locus standi (that is the capacity to bring a matter before the court) of private
law do not apply to public law litigation. This was a great advance. Some of the first-
generation judges (including such fine judges as Judges Mapigano and Katiti)
understood the difference between public and private law. They recognised that the
practice and procedure in these respective spheres were significantly different. Public
law and private law litigation ought to be approached differently.” Prof Shivji

• The proposed amendment unfortunately departs from a pre-established maxim in our

jurisprudence in that “the principles of public interest litigation are expressed in the
Constitution (Articles 12-29) by vesting capacity on a person as an individual and as a
member of the community with double standing to sue”. This important guidance
offered by our High Court in 1995 remains an integral part of our law.
• On the face of it seems that the more the legislative process involved the more the
access to the court for the enforcement of rights is impeded, the recent amendments
have come to clear the terrain on some of the areas which on the part of the Government
which to them where a thorn on the foot. This can be seen on the fact that most of the
points of preliminary objections which the courts have cleared and which according to
the principle of precedent were law have now been legislated meaning that the court
has to make another ruling on these matters i.e. locus standi( Mtikila Pinda Takrima
case and Mtobesya), immunity( Addo Shaibu, Pinda`s and Zitto) and available
means of redress ( Jebra Kambole)
• The legislature and the Judiciary should strive to understand that the procedure
enforcement of rights under the bill of rights are not in the nature of Private law rather
they are a specie of Public law under which the procedure and even the substantive law
cannot in any event be equal to that of private law. The legislative, legal and
administrative problems occasioned during the enforcement of the act are a result of the
legislature and the judiciary putting these proceedings as if they are equal.
• It is high time we adopt the Indian or Kenyan approach on enforcement of Rights. In
India for example Article 32 of the constitution gives the right for a person to move the
Supreme court by appropriate Proceedings for the enforcement of the rights conferred
by this part is guaranteed” the Catch word is appropriate proceedings and the court has
interpreted the word so widely so much so that even a letter of complaint or an article
in a newspaper has been taken to be a petition for the enforcement of fundamental
rights.

• 0n the other hand the powers of the High Court is found under Article 226(1) of the
same constitution” Notwithstanding anything in Article 32, Every High Court shall
have the powers, to issue to any person or authority, including in appropriate cases, any
Government within those territories directions, orders, writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of
them, for the enforcement of any of the rights conferred by Part III and for any purpose”
the two provisions are just simple and the court has been all along widening the scope
the aim if course being the protection of fundamental rights as contained in the
constitution.

• Kenya on the hand, the relevant provision is article 22 of the constitution which states
“every person has the right to institute court proceedings claiming that a right or
fundamental right freedom in the Bill of rights has been denied, violated or infringed
or is threatened”. In regard to rule the constitution under sub Article 3 give the chief

18
 Justice power to make rules providing for the court proceedings referred to in this article
which shall certify the criteria that:
a) The right of standing under clause 2 are fully facilitated
b) Formalities relating to the proceedings, including commencement of the
proceedings, are kept to the minimum and in particular that the court
shall, if necessary, entertain proceedings on the basis of informal
documentation.
• The Implication of this law to CSOs and human rights defenders is significantly huge
as it erodes their constitutional rights to defend human rights. That requirement that
compels petitioners of these cases to prove personal harm has far reaching impacts to
human rights defenders, human rights lawyers and CSOs in general. This requirement
automatically downgraded HRDs/CSOs from engaging in constitutional and public
interest litigation in Tanzania. This is the second misfortune to NGOs/HRDs after the
last year withdrawal of the Government of Tanzania from the African Court.
• According to International Centre for Non-Profit Law - ICNL, several international and
national legal systems have recognized the right of CSOs/HRDs to bring a case before
a court on the basis of a violated right, regardless of whether the organization has been
directly harmed by that violation. At the international level, admissibility standards for
various courts and human rights mechanisms allow for organizations to bring cases on
behalf of victims of human rights violations where there is a credible public interest
justification. The proposed amendment contravenes these good practices and removes
a mechanism to protect and promote fundamental freedoms. 22
• These amendments also contravene various international and regional human rights
principles on judicial remedy and access to justice. Tanzania being a party to several
international and regional human rights treaties is bound to respect those principles.23
Various instruments call members states to respect and create a conducive legal
framework for both individual or their representative or CSOs/HRDs to fill
constitutional and human rights complaints before courts of law protection of public
interest. According to ACNL surveys this has been an internationally-recognized best

22
ICNL (2020) Commentary on Tanzania’s The Written Laws (Miscellaneous Amendments) (No. 3) Act, 2020.
At the regional level, the African Commission on Human and Peoples’ Rightspermitsnon-
governmentalentitiestofilecomplaintsonbehalfofvictims.17 The East African Court of Justice has recognized the
right of a CSO to bring a case on behalf of citizens of East Africa.18 At a domestic level, in Uganda, a person
acting in the public interest may bring a claim regarding the infringement of a fundamental or other right or
freedom guaranteed under the Constitution even if that person has not suffered personal harm.19 Ugandan
courts have upheld standing for claimants bringing cases in the public interest.20 Similarly, in Kenya, court
proceedings regarding the denial, violation, infringement, or threat against a right or fundamental freedom, as
well as the contravention of the Constitution, may be instituted by a person acting in the public interest.21
Kenyan courts have also upheld standing in such cases.22

23
See UN Covenant On Civil and Political Rights of 1966, United Nations General Assembly, Declaration on
the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples Rights and
African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa.

19
 practice that all persons, whether individually or in association with others, have the
right to seek an effective remedy before a judicial body or other authority in response
to a violation of a fundamental human right.

“Preventing CSOs from bringing cases where they have not been personally harmed
can severely undermine the right of access to effective remedy for victims of human
rights violations in Tanzania. This mode of bringing claims is particularly important to
protect the rights of vulnerable populations, who are most likely to lack access to
resources for seeking remedies for violations of their rights.12 Thus, prohibiting CSOs
from bringing cases on behalf of individuals may have a disparate and discriminatory
impact on the most vulnerable communities in Tanzania” ICNL June 2020
• According to THRDC, ICNL and LHRC experience of CSO-led litigation, public
interest litigation has become a practical tool in countries where individuals may fear
reprisal for seeking remedies for violations of their rights. In Tanzania, for example,
many constitutional cases have been petitioned by human rights NGOs, lawyers and
strong individual activists like the late Rev Mtikila who are spirited and fearless of any
reprisals. Therefore, the current BRADEA amendment removes this public
representation, and thus undermines individuals’ ability and willingness to effectively
seek redress in courts of law.

CHAPTER FOUR

RECOMMENDATIONS AND CONCLUSION

4.0 RECOMMENDATIONS AND CONCLUSIONS

Having noticed the interpretation challenges that may be brought up by the proposed
amendments if they are left unattended, we propose the consideration of the following
approaches and recommendations.

4.1 Recommendations and Approaches

a) Call upon the Parliament of the United Republic of Tanzania, to review the past law by
fronting the arguments that the proposed amendments are contravening the constitution,

20
 infringing the fundamental rights of the people and threatening the rule of law by
shaking the concept of separation of powers.
b) Challenge the constitutionality of the proposed amendments by way of constitutional
petition at the High Court of Tanzania, Main Registry and Zanzibar. And request the
court to make the following orders:

• That section 4(2) of the of the Basic Rights and Duties Enforcement Act as
amended in inconsistent with the Constitution of the United Republic of
Tanzania for violating Article 26(2) of the Constitution.
• That section 4(3) of the of the Basic Rights and Duties Enforcement Act as
amended in inconsistent with the Constitution of the United Republic of
Tanzania for violating Article 26(2) and 30(3) of the Constitution.
• That section 4(4) of the Basic Rights and Duties Enforcement Act as amended
in inconsistent with the Constitution of the United Republic of Tanzania for
violating Article 26(1) of the Constitution.
• That Section 4(5) of the of the Basic Rights and Duties Enforcement Act as
amended in inconsistent with the Constitution of the United Republic of
Tanzania for violating Article 13(6)(a) and 26(1) of the Constitution.

c) Continue to use other remaining human rights enforcement mechanisms such as

Representative Suites, Judicial Review and the East African Court of Justice for human
rights litigations.
d) Challenge the same law before East Africa Court of Justice. PIL is a crucial element of
legal representation which when denied has the repercussion of restraining the
principles of access to justice, equality before the law, democracy, rule of
law, accountability, transparency and good governance, which Tanzania has
committed to uphold, under its commitment under the EAC Treaty, amongst many
other international legal instruments it has ratified. Therefore , human rights defenders
may seek EACJ orders that these amendments are blatant violation of Articles 6(d),
7(2) and 8(1) (c) of the Treaty for Establishment of the East African
Community (hereinafter the EAC Treaty.

4.2 Conclusion
By way of conclusion, the authors have attempted to provide a historical background to the
introduction of the Bill of Rights and attempts made to integrate them into our everyday life
through litigations by way of constitutional petition. This approach was taken with a view to
demonstrate the essence and utility of unhindered access to the constitutional court when
matters relating to Basic and Fundamental Human Rights are being envisaged.

It is on that score, that the authors have demonstrated that the proposed amendments to Section
4 of the Basic Rights and Duties Enforcement Act vide proposed changes under section 7 of
The Written Laws [Miscellaneous Amendments (No. 3) Act, 2020 without further refinements
are dangerous. The combined amendments have significant and far-reaching negative impact
on the rule of law in the country and on a number of the key principles of both natural and
procedural justice, as well as the basic tenets of our constitutional democracy as stipulated in
Article 3 of our Constitution.

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The proposed amendments threaten the core constitutional principles of equality before the
law, separation of powers, accountability, public interest, and even the position of the
Constitution as the foundational or mother law. It sets a dangerous precedent for Parliament to
tamper with the cornerstones of our peace, unity and democracy through these proposed
amendments. It is against that background, that the authors have proposed several approaches
that may assist in addressing the problems associated with the amendments.

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