CONSTITUONAL LITIGATIONS IN TANZANIA:

UNIVERSITY OF IRINGA

BY
PAULO PATIENCE HYERA: LL. B STUDENT (THEN 2016) LL. B HOLDER (AS OF
NOW) UNIVERSITY OF IRINGA

JUNE, 2016

i
 ACKNOWLEDGMENT

It might be no enough words and time to appreciate, I wish to extend my direct mention,
Felix Mutaki, Madam Julena Jumbe for their generosity, unquantifiable labor and
industry to complete this work, regardless of their busy schedules they took time to
assist and supervise, large indebted I incurred.
A. INTRODUCTIO

Constitution Litigations: means all cases relating to constitution protection, and human
rights violation. It might be interpretation of constitution provisions, infringement of
fundamental rights and freedoms and inconsistence with constitution1.

Locus standi: is derived from a Latin word which means “place of standing” the right to
bring an action or to be heard in a given forum2.

B. BACKGROUND TO CONSTITUTION LITIGATIONS

The constitutional litigation dates back in 1970s before the introduction of Bill of right in
Tanzania, there had been a long time struggle to enforce fundamental rights and those
days human rights was an utopian thing, it was not an agenda at all therefore there was
no appreciation of human rights in Tanzania3. In 1968 presidential commission for the
establishment of the democratic one-party state proposed and it was accepted by the
government that, to incorporate fundamental rights and freedom in a loose form on the
preamble of the interim constitution and further the government established permanent
commission of enquiry (PCE)4.However the methods adopted by the government were
observed to have shortcomings such as putting fundamental rights and freedoms was
meaningless because the English legal system that we Tanzania follow does not
recognize the preamble as part of the constitution and not enforceable5. In the case of
Hatimali Adamji v. East Africa Posts and Telecommunications Corporation6, a petition
was filed relying .n the preamble of The Interim constitution of 1965. The late Biron, J
said that, the preamble is not part of law, and therefore one cannot claim violation of

1
Frank Mirindo, Administration of Justice in Mainland Tanzania, Law Africa Publishing (K) Ltd, Reprint
2014.
2
Garner,B. Black’s Law Dictionary. 8th Ed West Publishing Co: United States of America, 2004.
3
Julena Jumbe Gabagambi, Canadian –Tanzanian Human Rights Engagement: A Critical Assessment of
the Literature and Research Agenda, Transnational Human Rights Review, (2017). Pg2
4
Chris Maina Peter, Human Right in Tanzania Selected Cases and Material. Koln Koppe: Germany,1997,
pg. 9 & 10.
5
Ibid pg. 9 & 10.
6
(1973) LRT no. 6.
1
rights basing on preamble. As alternative to the decision above, the case of
ThabitNgaka v. Regional Fisteries Officer7 cleared a back door that the schedule of the
interim constitution of 1965 could be a base to enforce fundamental rights and
freedoms. Also the permanent commission of enquiry (PCE) indicated serious
limitations i.e. it was not independent to the extent all investigations and complains end
up in the office of the president, the president had power to stop investigation at any
point in any time and he could also bar the commission from access certain
information8. Therefore, this suggests that fundamental rights and freedom was a
paradox in Tanzania in year before 1984.

C. LEGAL DEVELOPMENT OF CONSTITUTIONAL LITIGATION

Bill of Rights 1984

In 1984 the bill of rights was enshrined in the constitution of united republic of Tanzania
of 1977 through the (Fifth) (amendment) Act No.15 of 1968 but using the
(consequential, transitional and temporary provisions) Act, 1984 suspended the use of
bill of rights in a period of three years allowing the government to put is things in order9.
This was the fundamental breakthrough that provided away forward in constitutional
rights and its mechanism in enforcing the rights, pursuant to Article 12 to 29 of The
United Republic of Tanzania. Basic Right and Duties Enforcement Act, 1994 After the
incorporation of bill of rights there was no enabling law that provides for enforcement
of constitutional litigation and human rights. Thus, the High Court used its inherent
powers and practice to hear and determine constitutional matters, a single judge could
decide and entertain cases relating to fundamental rights and freedom10. Under the
head of constitutional cases relating to fundamental rights and freedoms there is a
lucid special procedure, precisely there is no any fixed procedure which deals with
constitutional cases separately from those relating to fundamental rights and duties11.

7
(1973) LRT NO.24.
8
Chris Maina Peter. Human Right in Tanzania Selected Cases and Material. Koln Koppe :Germany,1997,
pg. 10
9
Lubuva, Damian. Reflection on Tanzania bill of rights. Op ct.
10
Chris Maina Peter, Human Right in Tanzania Selected Cases and Material. Koln Koppe :Germany,1997,
pg. 9 & 10.
11
Frank Mirindo, Administration of Justice in Mainland Tanzania, Law Africa Publishing (K) Ltd, Reprint
2014.
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In 1994 the parliament enacted the Basic Right and Duties Enforcement Act which
promulgates for the procedures for filing constitutional cases, the Act applies in
Zanzibar and Tanzania mainland, though human rights is not a union matter12.
So the bill of rights in the constitution of united republic of Tanzania of 1977 and basic
rights and duties enforcement act, 1994 are the principle instruments enabling the
constitutional litigation in Tanzania.

D. PROCEDURE FOR CONSTITUINAL LITIGATIONS

1. Who Has Locus Standi to Petition a Constitution Litigation

Article 26(2)13, partly provides thus, ’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’, This provision goes hand in hand with article
30(3), which also enunciates that, “Any person claiming that any provision in this Part of
this Chapter or in any law concerning his right or duty owed to him has been is being or
is likely to be violated by any person anywhere in the United Republic, may institute
proceedings for redress in the High Court”. Consequently, every individual who think
that constitution has been, is being or there is likely to be curtailed has the right to
defend such right. This position has been reiterated in the stereotypical case of Rev.
Christopher Mtikiala Attorney General14 , whereby Lugakingira J had this to say, the
petitioner has locus stand by virtue of article 30(3) and equally article 26(2) of the
constitution.
2. How Can a Petition Be Lodged?
Basic Right and Duties Enforcement Act, 1994 is the law that provides for procedures
used to institute constitutional cases. The proceedings are either lodged by originating
summons or petition15. In the case of The Registrar of Societies & 2 Others v Baraza la

12
Shivji, I. G., et al, Constitutional and Legal System of Tanzania: A Civics Sourcebook, Mkuki and Nyota
Dar Es
Salaam, 2004, p.99.
13
Constitution of United Republic of Tanzania, CAP 1, 1977.
14
(1995) TLR 31(HC).
15
Section 5 Basic Right and Duties Enforcement Act, 1994.
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Wanawake Tanzania & 5 Other16, the Court of Appeal affirmed the interpretation by the
High Court that section 5 of Basic Right and Duties Enforcement Act, set out two
alternative and not concurrent, procedures for commencing proceedings of human
rights violations. Thus, the proceeding commences by originating summons or petition
annexed with an affidavit it. The petition or originating summons shall have the name
and address of the petitioner, the name and address of each person against whom
redress is sought, the grounds upon which redress is sought, the specific sections in
Part III of Chapter One of the Constitution which are the basis of the petition, particulars
of the facts, but not the evidence to prove such facts, relied on; and the nature of the
redress sought17. The petition shall be issued by or on behalf of a petitioner on each
person whom redress is sought, and where the redress is sought against government a
copy of petition shall be served to Attorney General, and where redress is sought
against minister, deputy minister, permanent secretary, commissioner or any other civil
servant in matter of official capacity the copy also shall be served to Attorney General18.
3. Where Can a Petition Be Filed
The Tanzanian High Court has original jurisdiction to hear and determine constitutional
cases, article 30(3)19, among other things says, “Any person claiming that any provision
in this Part of this Chapter or in any law concerning his right or duty owed to him has
been, is being or is likely to be violated by any person anywhere in the United Republic,
may institute proceedings for redress in the High Court”, this goes in tandem with
section 4, which lay emphasis on that, “If any person alleges that any of the provisions
of sections 12 to 29 of the Constitution has been, is being or is likely to be contravened
in relation to him, he may, without prejudice to any other action with respect to the same
matter that is lawfully available, apply into the High Court for redress20. However, in
circumstances where the matter of constitutionality arises any subordinate court, which
offends article 12 to 29 of the constitution the magistrate shall refer the matter to the
High Court for determination, but if the matter arises in primary Court, the magistrate
shall refer the matter to the resident magistrate court and the resident court shall ask

16
The Registrar of Societies & 2 Others v Baraza la Wanawake Tanzania & 5 Others (2001).
17
Section 6(a) to (f), The Commission for Human Rights and Good Governance Act,7, 2001.
18
Section7 (1) (3) Basic Right and Duties Enforcement Act, 1994.
19
Constitution of United Republic of Tanzania, CAP 1, 1977.
20
Basic Right and Duties Enforcement Act, 1994.
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itself where there is a constitutional novel and upon believe that the issue exists, then
shall refer the matter to the High Court21.
4. The Composition, Appearance and The Hearing of the Court That Entertaining The
Constitutional Litigations
Hearing of petition shall consists of quorum of three judges of High Court, save if an
application is frivolous, vexation or otherwise fit for hearing may be by one judge of the
high court, and the decision shall be of majority22. The petitioner may appear in person
or by advocate section 11(2)23;the court may receive evidence by affidavit in addition to
or in substitution of oral evidence, section 1224. In hearing of the case the court may
raise constitutional issues “on its own motion”(suo motu) this emerged from the
momentous case of the Attorney General v Marwa s/o Magori25, it was said that,
“Although it is true that neither of the parties had raised the issue of the consti
tutionality of the Deportation Ordinance, we are satisfied that the learned trial judge was
correct in raising it Suo Motu for two reasons: 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 the
inherent jurisdiction to raise and consider matters which are necessary to a fair and just
decision of a case, provided the parties are given reasonable opportunity to respond to
the matters raised”.
5. Constitutional Issues Other Than Those of Basic Rights and Duties:
Without hesitation and doubts high court has power to determine the case relating to
Basic rights and Duties. A question arises regarding the procedure in constitutional
cases which are not involved with basic rights and duties. The court seized an
opportunity in Fahari Bottlers Ltd& Another v The Registrar of Companies &Another26,
there are multitude of instances in which a constitutional issue may be decided first by
the Court of Appeal, thus, “The provisions of Article 30(3) apply only to enforcement of

21
Section 9(1), Basic Right and Duties Enforcement Act, 1994.
22
Section 10(1) and (2), Basic Right and Duties Enforcement Act, 1994.
23
Basic Right and Duties Enforcement Act, 1994.
24
Ibid.
25
Attorney General v Marwa s/o Magori (CAT) (1989).
26
Fahari Bottlers Ltd &Another v The Registrar of Companies Another.
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the provisions of human rights and freedoms contained under the Constitution. There is
no provision either under the Constitution or any other law which expressly or implicitly
requires any other constitutional issue to be decided first by the High Court before being
decided by this Court”. This suggests that there is lacuna in our laws, in cases relating
to constitutional issues other than those covered under article 12 to 29 of the
constitution. There is a need for the parliament to reconsider this shortcoming and
enact Act that will cover the enforcement of constitutional that are not covered by the
bill of rights.
6. Nature of Constitutional Remedies:
The High Court has power to issue constitution remedies, such as the following;
(a) Declaratory of invalidity, this is where the court declares the particular law invalid. In
Attorney General v Jeremiaha Mtobesya27, This was an appeal lodged by attorney
general, at first the petitioner who is to this appeal as respondent filed a suit to
challenge the constitutionality of section 148(5) of the Criminal Procedure Act, which
gives power to director of public prosecution to reject bail on account of public interest,
the petitioner argued that the provision offends the right to bail in pursuant to article
13(6)b, 15 and 17 of the constitution, the court declared that the section 148(4) of the
Criminal Procedure Act to be unconstitutional. Unhappily Attorney General aggrieved by
the decision appealed to the court of appeal, the court echoed the decision of high court
and had this to ponder, section 148(5) of the Criminal Procedure Act is, indeed,
unconstitutional as well as null and void on account of its derogation from the provision
of article 13(6) a of the constitution.
(b)The suspension of the provision. There are instances, the court instead of
pronouncing the unconstitutionality of a provision of an Act of parliament, may suspend
that power by giving a parliament an ample time to reconsider the said provision, and
upon expiration of the time so given, the provision will automatically become null and
void, this has been laid down under article 30(5)28. The milestone case of Rebeca z.
Gyumi v the Attorney General29.The petitioner filed this case challenging the
constitutionality of section 13 and 17 of the Law of Marriage Act, which violates the

27
Civil appeal no 65 of 2016.
28
Constitution of United Republic of Tanzania, CAP 1, 1977.
29
Civil Cause no. 5, 2016.
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constitution by offending the rule against discrimination and equality. In this case the
court suspended its power to declare the provision to be unconstitutional, and it was
said that, “Exercising the powers vested in this court by article 30(5) and 13(3) of the
constitution and the Basic Rights and Duties Enforcement Act respectively. We direct
the government through the Attorney General within period of one (1) year from the date
of this order to correct the complained anomalies within the provision of section. 13
and 17 of the Law of Marriage Act and in lieu thereof put 18 years as eligible age for
marriage in respect of both boys and girls”.it was appealed and the court of appeal
echoed the position of high court.
(c) Compensation, these may be made in terms of monetary terms, the court assess the
award to a person whose right has been infringed, in the case of Ntiyahela Boneka v.
Kijiji Cha Ujamaa Mutala30. The appellant sued the respondents, Mutala Ujamaa Village
for shs. 14,000/= being compensation for his piece of land of ten acres that the
respondents nationalized or unilaterally took over. The court of first instance of Kasulu
Primary Court at Kasengezi decided in favor of the appellant and assessed his
compensation at shs. 9,328/=. The respondents appealed to the District Court where he
was successfully however the appellant lodged an appeal to the High Court where it
was said that,No seizure of individual property should be carried out in the absence of
an enabling law and without compensation. A person is entitled to compensation for
improvements effected on land provided that at the time of carrying out such
improvements, he had apparent justification for doing so. Authorities involved in
decision- making regarding acquisition of land of individuals lawfully owned should
strictly adhere to the provisions of the Constitution 1977 as amended, which is the
supreme law of the land, to ensure peace and harmony in society.
CONCLUSION AND RECOMMENDATIONS
 The bill of right is incorporated in the constitution of united republic of Tanzania
in 1984 but the problems is still on the applicability and practically aspect human
rights are not fully protected.
 Another problem is the requirement of the composition to hear and determine
the constitution cases where there must be three judges of High court,this very

30
Ntiyahela Boneka v. Kijiji Cha UjamaaMutala,civil Appeal no 21.
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 futile. If a single judge can be entrusted to hear serious and cases of heavy
penalties such as murder, why not constitutional cases? Because it makes
complication on enforcement of people right and therefore courts cannot meet
the notion of timely justice31. Also there is deficiency of judges in some zones i.e.
it has less than three judges32.
 Another concern is with suspension remedy, the court has power to determine
case, and the act of suspending its power it is grossly relinquishment of its
powers and allows usurpation of judicial power as far as the rule of separation of
power is concerned, therefore this is limitation of the constitution since this
remedy is backed up by article 30(5)33.
Recommendations
There is need of amendments in our laws starting with the constitution to prohibit
courts from abdication of their powers to the parliament by way of suspension. Also the
basic and right and enforcement act of 1994 needs to be amended to enable a single
judge to entertain constitutional cases. Parallel to said above their pertinent need to
have a specific law which deals with constitutional litigation apart from those that rise
from part III of the constitution.

On the other hand, we have constitutional litigation we also need an independent

constitutional court with exclusive powers to deal with constitutional matters only, a
good example can be derived from our neighbor country Kenya who has a constitutional
court for constitutional litigations only. In Ensuring the applicability and practicality of
part III of the constitution of united republic of Tanzania of 1977we call upon the court
from time to time to employ the use of suo motu.

31
Chris Maina Peter. Human Right in Tanzania Selected Cases and Material. Koln Koppe: Germany,1997,
Pg. 761
32
Ibid
33
The Constitution of United Republic of Tanzania of 1977.
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