IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

( CORAM: LEVIRA. 3.A. RUMANYIKA. J.A. And NGWEMBE, J.A.^

CIVIL APPEAL NO. 134 OF 2022

ONESMO OLENGURUMWA..................................................APPELLANT

VERSUS

ATTORNEY GENERAL.................................................... RESPONDENT

(Appeal from the Judgment of the High Court of Tanzania, Main

Registry at Dar es Salaam)

(Luvanda, Mlvambina, Maaoiaa, JJ)

dated the 15th day of February, 2022

in
Miscellaneous Civil Cause No. 9 of 2021

JUDGMENT OF THE COURT

13th May & 13th June, 2025

LEVIRA, J.A.:

This appeal originates from a matter of constitutional significance

which was filed by the appellant in the High Court of Tanzania, Main

Registry at Dar es Salaam in Miscellaneous Civil Cause No. 9 of 2021. In

that petition, the appellant was challenging the constitutionality of the

provisions of the Written Laws (Miscellaneous Amendments) (No. 3) Act,

i
2020 (the Written Laws) which amended section 4 of the Basic Rights and

Duties Enforcement Act, Cap 3 R.E. 2019 (the BRADEA). The main

contentious issue raised by the appellant before the High Court was that,

the amendment of section 4 of the BRADEA by introducing subsections (2),

(3), (4) and (5) to that provision through the Written Laws, discriminates

and bars individual Tanzanian from petitioning to the court to protect basic

rights and freedoms enshrined in the Constitution of the United Republic of

Tanzania 1977 (the Constitution).

Among the adverse effects of the amendment claimed by the

appellant were as follows: One, the requirement of demonstrating personal

interest when filing a case under Article 26 (2) of the Constitution, was not

contemplated by the framers of the Constitution for that would defeat the

very essence and or purpose of human rights redress and protection

guaranteed under the Constitution. Two, the amendment through the

backdoor, in effect amended Article 26 (2) of the Constitution and

subjected it to Article 30 (3), contrary to the intention of the framers of the

Constitution. Three, the amendment has undermined the crucial

constitutional role of the Judiciary of Tanzania as the sole interpreter of the

Constitution through case law. Four, the amendment has undermined the

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principle of separation of powers, rule of law and good governance as

enshrined in the Constitution and various International Treaties for which

the United Republic of Tanzania is a party. Five, it has limited the

responsibility of the citizenry, whether individually or through their

associations, to protect the Constitution and the laws of Tanzania lawfully

enacted.

Six, the amendment has undermined the unique role and function

and the neutrality of the position of the Attorney General. Seven, it has

expanded the substantive constitutional role of the Attorney General

beyond what is provided for in the Constitution. Eight, the amendment has

restricted the enjoyment of fundamental rights and freedoms of the

citizenry to seek constitutional redress provided for in the Constitution by

introducing the requirement of exhaustion of available remedies which are

non-existent. Nine, the amendment has the effect of discriminating

between Tanzanians, especially the disadvantaged groups, as far as their

right to protect the Constitution and take legal action individually, or in

association with others, is concerned. And ten, that the amendment has

the effect of undermining citizens' right to enjoy fundamental human rights

in Tanzania in total disregard of the state's constitutional role to respect,

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protect and ensure realization of the rights in accordance with the existing

international and regional human rights treaties and domestic laws.

Thus, as demonstrated above, the appellant's firm position was that,

the amendment of section 4 of the BRADEA was a clear violation of the

constitutional doctrine of equality before the law and an unrestricted right

of every citizen to protect and defend the Constitution and law as provided

under Articles 13 (2), 13 (4), 13 (6) (a), 26 (1) and 26 (2) of the

Constitution.

Briefly, through his petition, the appellant sought the following

declaratory reliefs from the High Court:

1. That section 4 (2), (3), (4) and (5) o f the BRADEA is

inconsistent with the Constitution for violating Articles 13
(2), 13 (4), 13 (6) (a) 26 (1) and 26 (2) o f the
Constitution.
2. That section 4 (3) o f the BRADEA is inconsistent with the
Constitution by violating Article 26 (2) o f the Constitution.
3. That section 4 (4) o f the BRADEA is inconsistent with the
Constitution by violating Article 26 (1) o f the Constitution.
4. Section 4 (5) o f the BRADEA is inconsistent with the
Constitution for violating Articles 13 (6) (a) and 26 (1) o f
the Constitution.
 5. That parties who intend to file a constitutional petition
under Article 26 (2) need not show or demonstrate
personal interest.
The respondent opposed the appellant's grounds of petition stating

that the amendment referred to by the appellant in that petition does not

contravene any provision of the Constitution. Instead, it provided for

safeguards against violations of basic rights and fundamental freedoms. As

such, the position of the respondent was that, the requirement of

exhausting available remedies was there even before the amendment.

According to the respondent, what the amendment did, was only to amplify

the provision in relation to exhaustion of alternative remedies as was the

position before the amendment. To the respondent, the impugned

amendment is meant to curb abuse of the court process by those wishing

to initiate frivolous and vexatious petitions.

It is not insignificant to note that, the appellant's petition before the

High Court was found without merit and was dismissed. The appellant has

preferred the present appeal contesting that decision. The appeal is hinged

on eight (8) grounds challenging the amendment to the BRADEA as

unconstitutional as will be discussed in the course.

 Before we proceed any further, we find it necessary to point out that

parties to this appeal did not file any written submissions in support of or

against the appeal. They relied solely on their oral submissions at the

hearing of the appeal where, the appellant was represented by a team of

four learned counsel namely, Prof. Issa Shivji, Mr. Mpale Mpoki, Dr.

Rugemeleza Nshala and Mr. John Beniel Seka; whereas, the respondent,

the Attorney General was represented by Mr. Hangi Chang'a, learned

Principal State Attorney, Ms. Narindwa Sekimanga, learned Senior State

Attorney and Mr. Stanley Mahenge, learned State Attorney.

In the cause of submission in support of the appeal, Prof. Shivji

addressed the Court in respect of the 1st, 2nd, 3rd and 7th grounds of appeal.

The 4th and 5th grounds were argued by Dr. Nshala and the 6th and 8th

grounds were argued by Mr. Mpoki and Mr. Seka, respectively.

Prof. Shivji argued the 1st, 2nd and 3rd grounds together to the effect

that, the amendment of section 4 of the BRADEA was in violation of the

Constitution. In particular, subsections (2) and (3) of that provision are

unconstitutional because they violate Article 26 (2) of the Constitution in

that; first, they compromise the independent character of Article 26 (2) of

the Constitution; second, they introduce a requirement which does not

6
exist in the Constitution; and third, they destroy a special character of

public interest litigation by effectively abolishing it through introduction of a

requirement of filing an affidavit along with a petition.

In addition, Prof. Shivji submitted that, under subsection (3) of

section 4 of the BRADEA, the applicant is required to abide by Article 30 (3)

of the Constitution which relates to a person whose interest has been

infringed or personally affected. This requirement, he argued, subsumes

Article 26 (2) into Article 30 (3) of the Constitution. In so doing, he added,

the requirement does not consider that Article 26 (2) of the Constitution

provides for an independent right for every person seeking to protect and

defend the Constitution against any violation by any person to do so.

Reliance was made on Rev. Christopher Mtikila v. Attorney General

[1995] T.L.R. 31, which was followed by Attorney General v. Jeremiah

Mtobesya (Civil Appeal No. 65 of 2016) [2018] TZCA 347 (2 February

2018). In elaboration, Prof. Shivji contended that Article 26 (2) of the

Constitution provides for an independent source of locus standi. To him,

Article 30 (3) and Article 26 (2) of the Constitution are completely

independent of each other and were enacted for realization of completely

different objectives.
 He thus faulted the High Court's failure to appreciate the independent

character of those constitutional provisions. According to him, Articles 26

(2) of the Constitution was enacted to protect the Constitution generally,

while Article 30 (3) of Constitution is specific for an individual complaining

of a potential or real violation of his constitutional right. As a result of the

merging of Articles 26 (2) and 30 (3) of the Constitution, the learned

counsel argued, there is no procedure in place to enforce Article 26 (2) of

the Constitution.

Prof. Shivji submitted vigorously that, what has been done is an

amendment of Article 26 (2) of the Constitution through the backdoor. He

added that, had it been that the Legislature's intention was to amend the

Constitution, a resort should have been to the procedure under Article 98 of

the Constitution. He added further that, subsection (2) and (3) of the

BRADEA impose a new requirement in Article 26 (2) of the Constitution

which did not exist under the Constitution that a petitioner must show

personal interest in the matter. This is, he submitted, tantamount to

amending the Constitution by imposing a requirement which does not exist

in the constitution. According to him, if an applicant under Article 26 (2) of

the Constitution has personal interest, he or she cannot proceed because

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under Article 26 (2) of the Constitution the interest has to be public not

personal. Therefore, he argued, one does not need to go to other

jurisdictions to see how to handle public interest litigations because it is

already provided for in our Constitution, that is under Article 26 (2) of the

Constitution.

Elaborating, Prof. Shivji submitted that the provision of Article 26 (2)

of the Constitution provides for a right to take legal action in protection of

the Constitution to a person who is public spirited to perform his duty to

the society. It involves a notion of a public duty, or a right which is

personal entitlement, he added. Prof. Shivji also insisted that, Article 30 (3)

of the Constitution is distinct from Article 26 (2) because Article 30 (3) is

personal entitlement while Article 26 (2) of the Constitution provides for

means to perform a public duty as per Christopher Mtikila's case

(supra). He went on to argue that, the remedy under Article 26 (2) of the

Constitution is a remedy in rem while under 30 (3), is a remedy in persona.

However, he said, the High Court failed to appreciate that distinction. He

faulted the High Court for referring to Article 30 (3) of the Constitution as

procedural as it can be seen at page 663 of the record of appeal. It was his

argument that, the procedure should facilitate exercise of a right and

9
performance of a duty but not impede it. However, he said, subsections (2)

and (3) of section 4 of the BRADEA impede realization of the import of

Article 26 (2) of the Constitution.

In reply, Ms. Sekimanga submitted that, subsections (2) and (3) of

section 4 of the BRADEA provide for a procedure to enforce Article 26 (2) of

the Constitution. According to her, there is no difference in the procedure

of enforcement of the rights created under the disputed Article of the

Constitution. She argued that, both provisions, that is, Articles 26 (2) and

30 (3) of the Constitution are enforceable through the BRADEA and thus,

subsections (2) and (3) of section 4 of the BRADEA provide for the

procedure of enforcing them.

In complementing Ms. Sekimanga's argument, though somehow on

the contrary, Mr. Mahenge submitted that the provision under

consideration, that is, subsection (2) of section 4 of the BRADEA requires

an applicant to swear an affidavit to show how he or she has been affected

personally by the contravention of Articles 12 to 29 of the Constitution. He

submitted further that, under Article 26 (2) of the Constitution which

provides for public interest litigations, it is not necessary for the petitioner

10
to show how he has been affected personally. His conclusion was that,

subsections (2) and (3) of the BRADEA are not unconstitutional as alleged.

On his part, Mr. Chang'a submitted that institution of a constitutional

action under Article 26 (2) of the Constitution has to be done in accordance

with the procedural law which is provided under the BRADEA. Regarding

Prof. Shivji's argument that, amendment of the BRADEA has also amended

the Constitution through the backdoor, Mr. Chang'a opposed the argument.

He argued that, the amendment only introduced a procedure as to how

public interest litigations under Article 26 (2) of the Constitution may be

instituted.

We have carefully considered the rival arguments by the counsel for

the parties and thoroughly examined the record of appeal. The main issue

calling for our determination is whether Articles 26 (2) and 30 (3) of the

Constitution are similar in terms of their applicability or whether they can

be enforced through the same procedure. Before we go any further, we

find it appropriate to reproduce the contested provisions of Articles 26 (2)

and 30 (3) of the Constitution hereunder:

Articles 26 (2) of the Constitution provides:

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 "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 o f the land."
[Emphasis added]
Whereas, Article 30 (3) of the Constitution reads:

"Any person claiming that any provision in this

part o f this chapter or in any law concerning
his right or duty owed to him has beenf 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."
[Emphasis added]
It is apparent from the wordings of the above provisions that, the

Articles referred are different. We note that Article 26 (2) of the

Constitution provides for a right to "every person" to take legal action to

ensure protection of the Constitution and the laws of the land. The

protection envisaged under this provision does not suggest to be in relation

to the petitioner's personal rights but public rights violation as per Jeremia

Mutobesya's case (supra). On the contrary, Article 30 (3) gives option to

"any person" who is personally affected by the infringement of any of his

12
right or duty owed to him, to institute proceedings for redress in the High

Court (personal interest litigations). These provisions existed in our

Constitution from when the Basic Rights and Duties were introduced in

1984. They have all along been enforced to protect public and personal

rights, respectively; see: Director of Public Prosecutions v. Daudi Pete

[1993] T.L.R. 22.

However, as intimated earlier, the amendment of the BRADEA

introduced subsections (2) to (5) of section 4. Specifically, in respect of the

main issue we have just raised, the arguments have been that those

subsections (2) and (3) of section 4 the BRADEA are aimed at hindering

enforcement of the right of every person to take legal action to ensure

protection of the Constitution and the laws of the land. Professor Shivji's

arguments were weakly opposed by the counsel of the respondent who,

however had contradictory positions as shown above.

At this juncture, we think it is opportune to consider what was the

decision of the High Court in respect of the arguments of the parties

regarding the contested provisions. For ease of reference, we reproduce

hereunder the provision of section 4 of the BRADEA as amended. It

provides:

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"4 (1) Where any person alleges that any o f the
provisions o f Articles 12 to 29 o f 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 to the High Court for redress.
"(2) without prejudice to the provisions o f the
Commission for Human Rights and Good
Governance Act, relating to powers o f 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 o f the provisions o f
Articles 12 to 29 o f the Constitution has affected
such person personally.
(3) For avoidance o f doubt, a person exercising the
right provided for under Article 26 (2) o f the
Constitution shall abide with the provisions o f
Article 30 (3) o f 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 o f 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."

[Emphasis added]
As it can be observed from the above provisions, subsection (2)

introduced two mandatory requirements for a citizen who wishes to enforce

his right created under Article 26 (2) of the Constitution. They are; first, to

present an affidavit stating how he has been affected personally by the

contravention of the Constitution, and; second, such citizen or applicant

must comply with the requirements of Article 30 (3) of the Constitution. At

page 664 of the record of appeal, the High Court had the following to say:

"As pointed out, the fusion o f the two Articles is in

respect [of] the procedure o f institution o f the
proceedings under the Basic Rights, Freedoms and
Duties under BRADEA and not what the petitioner
purports it to be.
It is not strange, even the petitioner has cited
Article 26 (2) and 30 (3) o f the Constitution (supra)
among others, to show that the two provisions may
be fused as a matter o f procedure in the institution
o f the proceedings under the BRADEA. Since the
15
 BRADEA sets the procedural requirements and that
the petitioner herein complied by moving this court
under Article 26 (2) and 30 (3) o f the Constitution
(supra) and section 4 (1) o f the BRADEA (supra) at
the same time supported [by] the originating
summons with the affidavit which speaks on the
interest o f the deponent and the Public at large and
the Petition was admitted, the Petitioner cannot
come forward to challenge the provision
under which the petition has based without
objection and no question of locus standi
have been raised in respect o f Article 26 (2) of
the Constitution (supra) and section 4 o f the
BRADEA (supra). [Emphasis added]
With respect, we fail to comprehend the above reasoning of the High

Court which was seemingly based on the fact that the application before it

was preferred under the impugned provisions. In the first place, how could

it be possible for the applicant to succeed in lodging the petition without

complying with the requirements of the law currently in force. It is

therefore not surprising that there was no objection and oranyissue

regarding locus standi in his petition, which was essentially a publicinterest

petition. Nonetheless, the question remains: What would happen if the

16
appellant had no personal interest in the matter but wanted to defend

public interests?

In our considered view, it was a misdirection on the part of the High

Court to fault the appellant because of his obedience to the procedural law

in force. As we intimated earlier on, there is no guarantee that every

petitioner will be able to demonstrate personal interest in all circumstances.

What is apparent from the excerpt above is that, with respect, the High

Court erroneously gave the impugned provisions a very limited

interpretation.

It is common knowledge that, Article 26 (2) of the Constitution deals

with public interest litigations. Thus, if a petitioner who petitions under this

provision is subjected to the requirements of subsection (2) of section 4 of

the BRADEA, he or she must state in his affidavit how he was personally

affected by the contravention of the Constitution. This requirement, as

correctly submitted by Prof. Shivji, in our view, defeats the spirit of Article

26 (2) of the Constitution which confers to every person or individual citizen

of the country, a right and duty to protect the Constitution and the laws of

the land, whether affected personally or defending public interests.

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 We are unable to go along with the reasoning of the High Court that,

the introduction of subsections (2) and (3) of section 4 of the BRADEA has

not affected realization of the right created by Article 26 (2) of the

Constitution. We need not over emphasize that, Article 30 (3) of the

Constitution deals with personal interest litigations. Therefore, by

subjecting a public interest petitioner to a procedure which requires him to

prove his personal interests, is tantamount to giving him a right by one

hand, and taking it away by another. We say so because, it is common

knowledge that, in public interest litigations, a petitioner does not have to

demonstrate the manner or extent of his being affected by the violation of

the Constitution he wants to challenge. With the provisions of subsections

(2) and (3) of section 4 of the BRADEA in place as part of our law, it is

evident that the Constitution remains exposed to abuse and violation with

no hope of being protected by any person as it used to be before

enactment of the contested amendments.

The doctrine of supremacy of the Constitution that all democracies

cherish and uphold, is exhibited by the high moral duty of all citizens to

faithfully preserve, protect and defend their Constitution. That ideal

suggests that all provisions of the Constitution seeking to preserve, protect

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and defend the very Constitution, are strictly protected and construed by

courts of law liberally and permissively, rather than restrictively, with no

chance of taking them away either directly or indirectly.

Before amendment of the BRADEA, the right under Article 26 (1) and

(2) of the Constitution had no restriction, condition or limitation towards

realization of its objective. The restriction was put in place by the said

amendment to section 4 of the BRADEA. In our view, the impugned

amendment is not in any way making it any easier for every person who

seeks protection of the Constitution, to access the court and challenge its

violation. Perhaps, it is not insignificant to note that the enforcement of the

rights under Article 26 (2) of the Constitution has been all along through

case law as is evident in DPP v. Daudi Pete (supra), where this Court

stated:

"... We may only add that by commencing with the

expression "Every person..."as distinguishable from
"an aggrieved or interested person'' the Article
(26 (2)) confers standing on a desirous
petitioner to seek to protect the rights of
another or the general public at large despite
having no sufficient interest on the impugned
contravention. The Article is, in itself, a departure
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 from the doctrine o f locus standi as we know it in
the common law tradition."
See also, The Attorney General v. Jeremia Mtobesya (supra).

In the light of the above discussion and having considered the nature

of the impugned provisions, we entertain no doubt that the requirement of

an affidavit by the petitioner showing personal interest in public interest

litigation; and the requirement to comply with the provisions of Article 30

(3) of the Constitution, before pursuing a public right created under Article

26 (2) of the Constitution, means that subsections (2) and (3) of section 4

of the BRADEA, are not only inconsistent with the Constitution but also, a

deliberate impediment to protection and defense of the Constitution, hence,

unconstitutional. We therefore, allow the 1st, 2nd and 3rd grounds of appeal.

In respect of the 7th ground of appeal, Prof. Shivji submitted that this

ground relates to immunity conferred on our Constitutional office bearers

under subsection (4) of section 4 of the BRADEA. It was his argument that,

the immunity conferred by that provision is unconstitutional because the

named office bearers cannot be impleaded in petitions against their

wrongful actions which is contrary to rule of law and accountability. In

other words, he argued, their wrongful actions cannot be challenged

20
directly through them. Thus, the immunity conferred under subsection (4)

of section 4 of the BRADEA impairs accountability, equality before the law

and brings about improper joining of parties, hence, unconstitutional.

He insisted that, the only way such office bearers can be held

responsible is through legal action in a court of law as proper parties. Our

country (Tanzania) is a Republic and thus its President and those other

constitutional office bearers should be accountable for their acts. In the

circumstances, he insisted, a wrong doer, if for instance is the President,

should be impleaded as a proper party and the Attorney General as a

necessary party.

According to Prof. Shivji, the implication of not impleading the

mentioned constitutional office bearers under subsection (4) of the section

4 of the BRADEA is that, the proper party will not appear in the pleadings

and before the court. As a result, no effective relief can be sought from a

person who does not appear in court and no court will grant a remedy

against a person who is not impleaded. He argued that, those office

bearers can be impleaded and the Attorney General appear in two

capacities; to wit, as a necessary party and as counsel for the proper party.

Failure to implead those office bearers, he argued, could lead to impunity.

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 He concluded by insisting that, subsection (4) of section 4 of the

BRADEA is unconstitutional, null and void. He, thus, urged us to declare it

so and order the same to be struck off the statute book with immediate

effect.

Ms. Sekimanga's reply to the 7th ground of appeal was that,

subsection (4) of section 4 of the BRADEA does not provide for any

immunity to the mentioned constitutional office bearers. Instead, she said,

it only provides for the procedure through which one can sue them in case

they violate the Constitution and the rationale is traceable under Article 30

(5) of the Constitution. In addition, Mr. Chang'a submitted that, by virtue of

the impugned provision, the Attorney General will be sued as a proper

party for their violation.

Having heard the submissions by both parties and scrutinized the

record of appeal, the issue calling for our determination is whether

subsection (4) of section 4 of the BRADEA creates immunity shielding the

mentioned constitutional office bearers against legal actions. The impugned

provision is reproduced for clarity as follows:

"(4) Notwithstanding any provisions to the contrary,

where redress is sought against the President,

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 Vice President, Prime Minister, the Speaker,
Deputy Speaker or Chief Justice o f any act or
omission done in the performance o f their duties, a
petition shall only be brought against the
Attorney General." [Emphasis added]
As it can be clearly observed, the above provision provides for a list of

the six office bearers who cannot be taken to court for their actions or

omissions in the performance of their duties. In case they commit any

wrong, the 'only' person to be sued is the Attorney General. While arguing

in respect of the provision under consideration, Prof. Shivji emphasized on

the rule of law and accountability. Conceivably before we go any further,

we need to consider what the Constitution provides for in relation to those

two principles. Article 26 (1) of the Constitution provides:

"Every person has the duty to observe and to

abide by this Constitution and the laws o f the United
Republic."[Emphasis added]
In terms of the above provision, the obligation to abide by the

Constitution and the laws of the land is put to every person. Meaning that,

it includes those listed in subsection (4) of section 4 of the BRADEA.

Article 13 (1) and (6) (a) of the Constitution emphasizes on the

doctrine of equality before the law. It provides also that, State authority is

23
required to put in place procedures which are appropriate to ensure that

the doctrine of equality before the law, thrives. The question that follows is

whether the procedure under subsection (4) of section 4 of the BRADEA

falls squarely within the purview of the mandatory obligations provided for

under the cited constitutional provisions. The answer to this question is not

far-fetched. Ms. Sekimanga had taken the view that, although the

impugned provision provides that such a petition can only be brought

against the Attorney General for the wrongs of the mentioned office

bearers, it does not mean that they are immuned to any court action and

that the rationale behind it is provided under Article 30 (5) of the

Constitution. With respect to Ms. Sekimanga, Article 30 (5) of the

Constitution has nothing to do with the contested point. The provision

directs what the High Court should do in case it finds that one of the

provisions of Articles 12 to 29 has been violated. It is clear to us that the

submission in this respect by Ms. Sekimanga was, respectfully, beside the

point, for the leaned Senior State Attorney utterly failed to respond to the

argument put forth by Prof. Shivji.

In respect of the response by Mr. Chang'a as noted above, we need

to pause and ask, who is a proper party? In the Academic, Legal Dictionary

24
as quoted in Alphonce Buhatwa v. Julieth Rhoda Alphonce (Civil

Application No. 209 of 2016) [2016] T7CA 900 (26 October 2016;

TANZLII), the Court stated:

"A proper party is one in whose absence an effective

order can be made, but whose presence is
necessary for a complete and final decision on the
question involved in the proceedings."
By that definition and the submission by Mr. Chang'a, it means that

the Attorney General, once sued is able to play a full role of being

accountable for every wrong committed by any of those office bearers

mentioned in the impugned provision. Although that is what he intended to

be his position, Mr. Chang'a did not sufficiently clarify to us how the

Attorney General can carry out the orders or directives that the High Court

may make to the office bearers mentioned in the impugned provision for

enforcement. Our point here is this; the Attorney General does not have

mandate to discharge any legal or constitutional duties of the office bearers

mentioned in subsection (4) of section 4 of the BRADEA. In the

circumstances, it is clear in our mind that, by stating that the petition can

"only" be brought against the Attorney General, there is a possibility of

having a petition in court whose end result may revolve around the issue

25
between the parties to its finality, without enforceable order. For the

enforceable order requires presence of a necessary party to whom the

order of court should be directed. In Abdullatif Mohamed Hamis v.

Mehboob Yusuf Osman and Another, Civil Revision No. 6 of 2017

(unreported), the Court reasoned and came up with the following position:

"There is no gainsaying the fact that the presence o f

a necessary party is, just as weii, imperatively
required in our jurisprudence to enable the courts to
adjudicate and pass effective and complete
decrees."
Being guided by the position above, we are unable to agree with Mr.

Chang'a that the Attorney General is sued as a proper party without

considering his or her constitutional mandate to comply with the court

orders which may be issued for compliance to any office bearer under

consideration.

At this juncture, we need to consider how the High Court dealt with

the issue under consideration. At page 681 of the record of appeal, the

High Court had this to say:

"Needless, as pointed out by the respondent, there

is nowhere section 4 (4) (supra) has barred suit
against the Head o f State. Instead, the procedure
26
 has been changed from instituting proceedings
under BRADEA directly against them and the same
be brought against the Attorney General. What the
petitioner has failed to understand is the fact that
proceedings under the BRADEA are not
normal civil proceedings involving private

persons. To be precise, the procedure o f preferring

suit against Heads o f State in civil and criminal
remains intact under the Constitution and other
laws."
While making reference to what is provided under Article 30 (5) of

the Constitution, the High Court went on to state at page 683 of the record

of appeal as hereunder:

"Our reading [of] the above provision, justify the

reason as to why the parliament wants the
Attorney General to be impleaded instead
o f the Heads o f State in order to facilitate
the implementation o f court order when
the Government is ordered to rectify the
defect. The Attorney General who initiates
legislative drafting, will be a realistic person to
champion legislative drafting as in the instant
petition. The practice o f impleading or having the
Attorney General be accountable to the court o f
 law for the action or omission o f the Government
and its organ is not strange. In East African
Court o f Justice, suits are brought against
Attorney General o f each partner state and at
the African Court on Human and Peoples Rights,
applications are brought against the United
Republic o f Tanzania; and the Attorney General
(supra) is responsible to defend the actions or
omission o f the state concerned. This applies
where the action or omission challenged
have been committed by one o f the Heads
o f State organs:
For all these reasons we would reject the
submissions o f counsel for the petitioner that
section 4 (4) o f the BRADEA (supra) is in
violation o f Article 13 (6) (a) (supra); and 26 (1)
o f the Constitution (supra) o f the United
Republic o f Tanzania."
[Emphasis added].
The above three excerpts raise some questions, which unfortunately,

were not answered by that court before arriving at its conclusion. With

respect, we should first state our position that, we are unable to go along

with thereasoning of that court due to the following: One; wefail to

understand what the High Court was referring to by thephrase "the

28
proceedings under the BRADEA are not normal civii proceedings involving

private p e r s o n s We have thoroughly perused the record of appeal, but

could not find anywhere the petitioner, now appellant referred to a private

litigation. All along, the matter before the High Court was a public interest

litigation. Besides, if the BRADEA has its peculiar procedure which needs to

be followed, the High Court failed to reveal the said procedure. In our view,

the High Court misunderstood the petitioner's complaint.

Two, the High Court took a view that, "the Attorney General is

impleaded instead o f the Heads o f State in order to facilitate the

implementation o f the court order to rectify the defect." This finding takes

us back to the above discussion regarding proper and necessary parties.

The High Court was of the stance that the Attorney General is a necessary

party who should enforce court orders even those directed to the office

bearers mentioned in subsection (4) of section 4 of the BRADEA.

Nonetheless, as per our previous discussion, we still do not see how the

Attorney General can carry out effectively any directive of the court

directed to any office bearers in case, for instance, the court orders the

latter to perform a particular statutory or constitutional function conferred

to that office bearer. We are alive that under the Constitution, the Attorney

29
General is a Chief Adviser of the Government on matters of law. But that

role, does not vest into his office any mandate to perform any day-to-day

functions of any of the office bearers referred to in subsection (4) of

section 4 of the BRADEA, such that he is in a position to comply with any

court directives that may be issued to any of such office bearers.

Three, the examples relied upon by the High Court like the African

Court on Human and Peoples Rights and the East African Court of Justice,

in our considered opinion were cited out of context, for those are regional

courts and none of them is a national court, neither do continental or

regional blocs have Attorney Generals or Constitutional leaders like the

office bearers who are the subject of the issue we are urged to resolve. In

any event, it does not indicate the status of the Heads of State as far as

public interest litigations is concerned. We also do not find any compelling

reason to discuss the practice in other countries, for we have a properly

functioning constitutional order that every person, institution and state

organ in this country has to respect and protect vigilantly. We stress that

Tanzania is a Republic; it is not a Regional Bloc although it is a member of

several of them. Suffices here to state that, the petitioner in the present

30
matter focused on public interest litigation in the light of the amendment of

section 4 of the BRADEA.

Four, in making reference to other jurisdictions, and indeed,

responding to the appellant's arguments, the High Court referred to only

the Head of State, not other office bearers. What is not clear to us is

whether the High Court trimmed down the list of the office bearers to

retain only the Head of State by design or by default. If it was by design,

what was the court's determination in respect of those who are not Heads

of State, but they are in the list. If it was by default, then the issue is

whether all office bearers mentioned are also Heads of State. These

questions are not insignificant.

Before winding up our deliberation on this complaint, we find it

apposite also to put it on record that we tried during the hearing of the

appeal to inquire from the counsel for the respondent as to what was the

mischief that the legislature intended to cure by the introduction of section

4 (4) of the BRADEA in 2020, such that it is only the Attorney General who

has to be sued, as opposed to the previous position for all the years since

1984 when the Bill of Rights was introduced in the Constitution.

Unfortunately, we did not get any useful answer from any of them.
31
Nevertheless, we examined the record of appeal to see whether there was

anything of legal or constitutional significance which might have been

brought before the High Court to show how the respondent might have

been affected by the old position. Instead, what we came about was that

there were numerous cases where the Head of State of this Country was

sued together with the Attorney General, but it did not occasion any

apparent upheaval. See for instance, Ado Shaibu v. Honourable John

Pombe Magufuli (President of the United Republic of Tanzania) & Others

(Misc. Civil Cause No. 29 of 2018) [2019] TZHC 3 (20 September 2019);

Zitto Zuberi Kabwe v. The President of the United Republic of

Tanzania & Others (Misc. Civil Cause No. 1 of 2020) [2020] TZHC 72 (18

March 2020); Henry Zephryne Kitambwa v. President of the United

Republic of Tanzania and Others (Misc. Civil Application No. 33 of

2018) [2019] TZHC 16904 (19 December 2019); Emmanuel S. Stephen

v. President of the United Republic of Tanzania and Others (Misc.

Civil Application No. 12 of 2019 [2020] TZHC 1850 (17 June 2020);

Godwin Bernad Kagaruki v. The Hon. President of Tanzania &

Others (Civil Appeal No. 270 of 2020) [2022] TZCA 188 (5 April 2020);

Godfrey M. Makori v. His Excellency The President of the United

Republic of Tanzania and Another (Civil Appeal No. 67 of 2008) [2013]

T7CA 2295 (5 July 2013) to mention but a few.

We are settled in our minds, and agree with Prof. Shivji that,

subsection (4) of section 4 of the BRADEA contravenes Articles 26 (1) and

13 (6) (a) of the Constitution which advocates on accountability and

equality before the law. Also, we may add here that, it interferes with the

powers of the court conferred under Article 107A of the Constitution by

limiting who should appear before it. We say so because, in dispensation of

justice, it is useless if the court can make orders that are incapable of being

complied with or cannot be enforceable, see: 21st Century Food and

Packaging Ltd v. Tanzania Sugar Producers Association and 2

Others (Civil Appeal No. 91 of 2003) [2005] T7CA 31 (15 June 2005) and

Abdullatif Mohamed Hamis (supra). Finally, we wish also to restate the

unwavering position of this Court that, in this country all persons are equal

before the Constitution and other laws of the land.

For the foregoing reasons, we allow the 7th ground of appeal and

declare subsection (4) of section 4 of the BRADEA, unconstitutional.

In respect of the 4th and 5th grounds of appeal, Dr. Nshala faulted the

High Court for imputing ulterior motive of inter alia private gain or publicity
33
or bad faith to public interest litigation without a shred of evidence derived

from a credible study and consequently holding that the purpose of the

impugned subsections (2) and (3) of section 4 of the BRADEA, as amended

was to weed out such persons from filing applications under Article 26 (2)

of the Constitution. He added that, it was wrong for the High Court to

conclude that the purposes of the above referred subsections were to weed

out frivolous and vexatious applications without taking cognizance of

section 8 (2) of the BRADEA which gives power to the High Court to strike

out frivolous and vexatious applications after due process of the law. This

provision (section 8 (2) of the BRADEA), he insisted, existed even before

the contested amendment and therefore, it was superfluous for the

legislature to purport doing it under subsections (2) and (3) of section 4 of

the BRADEA as amended. It was Dr. Nshala's firm submission that, in any

case, whether or not an application is frivolous or vexatious cannot be

determined apriority a piece of legislation.

According to him, subsection (2) of section 4 of the BRADEA has

changed public interest litigations to personal interest litigation by requiring

the application to be accompanied by an affidavit stating the extent to

which the contravention of the provisions of Articles 12 to 29 of the

34
Constitution has affected the petitioner personally. Such amendment, he

argued, aimed at annulling the rights conferred by the Constitution, which

is not acceptable. In support of his arguments, Dr. Nshala cited the

following decisions of the Court. The Attorney General v. Jeremia

Mtobesya (supra); Paulo Revocatus Kaunda v. The Speaker of the

National Assembly & The Attorney General, Civil Appeal No. 167 of

2021 [2025] TZCA 183 (7 March 2025) and Zitto Zuberi Kabwe v. The

President of the United Republic of Tanzania and 3 Others (supra).

Finally, Dr. Nshala urged us to allow the appeal on the discussed grounds.

Ms. Sekimanga had nothing useful to reply to the arguments by Dr.

Nshala on the above grounds of appeal. She only reiterated her submission

in respect of the 1st, 2nd and 3rd grounds of appeal.

The main argument by the appellant calling for our determination is

that, section 4 (2) of the BRADEA has changed public interest ligation to

personal interest ligation by requiring the petitioner to express how he

is/was personally affected by the contravention of the provisions of the

Constitution, particularly basic rights and duties under Part III of Chapter

One of the Constitution. This provision as quoted above, provides in

mandatory terms that no application shall be admitted by the High Court

35
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

effected such person personally". The way we look at the appellants

complaint, we think, and indeed, it is the position, the respondent

misunderstood its gist. The issue, in our considered view, is not on affidavit

as a document, the issue is the objective it seeks to achieve or undermine.

It is very unfortunate that even the High Court fell under the same trap.

We say so because, having traced this issue from the record of appeal, we

have realized that before the High Court, the respondent misconstrued the

whole concept of locus standi from an Indian perspective where in public

interest litigations, the petitioner is not required to show that he has

personal interest and if he will be acting on personal interest, his petition

will be rejected by the court. In the present matter, they twisted it to justify

that, he actually has to show personal interest as provided for under

subsection (2) of the section 4 of the BRADEA. At page 646 of the record of

appeal, the High Court quoted and relied on the decision of the Supreme

Court of India in S. P. Gupta v. Union of India, AIR 1982 SC 149, 1981;

where, while dealing with the issue regarding public interest litigations, it

said:

36
 "But we must hasted to make it dear that\ the individual
who moves the Court for judicial redress in cases o f this
kind must be acting bona fide with a view to
vindicating the cause o f Justice and if he is acting for
personal gain or private profit or out o f political
motivation or other oblique considerationthe

Court should not allow itself to be activised at the

instance o f such person and must reject his
application at the threshold\ whether it be in the
form o f a letter addressed to the court or even in the
form o f a regular petition filed in Court." [Emphasis
added]

The excerpt above is very clear and does not require application of

other rules of interpretation except the literal meaning as it uses a very

plain and simple language. It is so surprising that immediately after that

quotation, the High Court remarked as follows:

"The respondent maintained that the impugned

provisions are intended to limit or deter the
busybodies from filing cases in courts o f law
even where there is no infringed right by
respective petitioner. Further, it is trite
law and leaning that, for one to institute a
case he has to demonstrate locus

37
 stand/his rights which constitute a cause
o f action, thus filing o f [a] case. Thus, it is by
so doing the filing o f cases, be it civil or
constitutional will be legally regulated and
the Court is not put to pressure o f having
many cases from Busybodies who have
either no task to do or searching for publicity
nor any other hidden goal from themselves or
someone else. The amendment o f the BRADEA
accommodate the challenges under which the
Public Interest Litigation may be faced and
accord locus to the bona fide and litigant with
sufficient interest under section 4 (2) o f the
BRADEA (Supra)."

[Emphasis added]

We further note that, the High Court took a view that subsection (2)

of section 4 of the BRADEA came as a procedural gadget purposely for

filtering public interest petitions. At page 652 of the record of appeal, the

High Court made an observation to the effect that:

"The Court is o f strong finding that, it is not

only desirable but also reasonable in the
interest o f Justice to apply a "public litigation
petition filter rule" or rather what we call "a
public litigation case filter doctrine" imposed
under section 4 (2) o f the BRADEA (Supra) for
the petition o f public litigation to be supported
with an affidavit. Such requirement will serve
the following purposes: First, [it] will safeguard
[the] court to entertain litigation not or a false
hypothesis o f public interests but private
interests brought in the umbrella o f public
interests. Second, it will [bar many] petitioners
with the maia fide intention who are likely to file
petition on public litigation basis which are not
real o f public interests. It is not easy for the
Civil Court to establish mala fide intention o f the
parties unless there is an affidavit in support o f
such petition. Third, attachment o f affidavit
helps to avoid multiplicity o f cases which are not
based on public interests. As a result, help the
Court to evade huge unnecessary backlog o f
cases. Forth, attachment o f affidavit is a
compliance o f the law since the Constitutional
Court is guided by BRADEA Procedural Rules to
deal with cases fairly, within reasonable time
and at a proportionate cost. Fifth, filtration o f
public litigation cases by way o f affidavit
attachment to the petition will avoid hindrance

39
 to speedy disposal o f other matters as the Court
will have time to deal with other real cases.
Sixth, it serves resources o f the Court and o f
the parties. It follows, therefore, that the
impugned provisions o f the BRADEA (supra) are
rationally connected to their objective and not
based on unfair or irrational considerations."

With respect, we are not persuaded by the above finding of the High

Court because by virtue of subsection (2) of section 4 of the BRADEA which

purports to deal with public interest litigation, the petitioner is required to

demonstrate how he has been affected personally instead of how the public

has been affected or the Constitution has been violated by a certain act or

omission.

The purported filtration of cases and its advantages as stipulated by

the High Court, in our humble view, cannot be done in the manner

expressed. It is common knowledge that, the court which receives and

determines petitions, stands better position to gauge whether the petition

falls squarely within the purview of public interest litigation than any other

institution. The point is that, whether a constitutional petition raises

frivolous or vexatious matters is an issue which has always all along been

40
determined by a single Judge of the High Court under section 10 (1) of the

BRADEA, which provides that:

"10.-(1) For the purposes of hearing and

determining any petition made under this Act
including references made to it under section 9, the
High Court shall be composed o f three Judges o f the
High Court; save that the determination
whether an application is frivolous, vexatious
or otherwise fit for hearing may be made by a
single Judge o f the High Court/' [Emphasis
added].

That is to say, it could not be for the National Assembly to assist the

court from the very outset to determine matters that are frivolous or

vexatious. Rather, it is for the court to do so. We have, therefore, failed to

find any justification of the enactment of such restrictive law. A good law in

a democratic State should not hinder or prevent anyone from accessing the

court to enforce any rights, leave alone, protection of the Constitution. We

are also of the firm position that, filtration of cases cannot be done at the

expense of baring people to come to court to access justice and question

constitutional violations. Without prejudice, however, we find that the

amendment of section 4 (2) of the BRADEA has taken away the jurisdiction

41
of the court to hear and determine public interest petitions from individuals

who are committed to discharge their duty under the Constitution, and

that, this Court cannot, under any circumstances, bless it.

It is, thus, our finding and we so hold that, the requirement of

demonstrating personal interests by an individual intending to file public

interest petition under subsection (2) of section 4 of the BRADEA and

subsection (3) of section 4 of the same Act which subject a petitioner to the

procedure of personal interest litigation as alluded to above, renders those

provisions inconsequential and unconstitutional. They bar access to justice

in the above explained context. In that respect, they contravene Article 26

(2) of the Constitution by ousting the powers of the court to deal with such

matter. In the event, we allow the 4th and 5th grounds of appeal.

Mr. Mpoki submitted in respect of the 6th ground of appeal which

challenged the decision of the High Court in respect of the standard and

burden of proof required in Constitution petitions. He faulted the High Court

for misconstruing the obiter dictum in the case of Rev. Christopher

Mtikila (supra) and holding that the required standard is one beyond

reasonable doubt. Currently, he argued, the position has changed following

courts decisions in Julius Francis Ishengoma Ndyanabo v. The

42
Attorney General [2004] TLR 14 and The Attorney General v.

Dickson Paulo Sanga (Civil appeal No. 175 of 2020) [2020] TZCA 371 (5

August 2020), where the Court stated categorically that, the standard of

proof stated in Rev. Mtikila's case (supra) no longer holds water. He

argued further that, since both decisions are the decisions of the Court,

then the lower courts are bound to follow the most recent decision;

insisting that the required standard in constitutional litigations is on balance

of probability. In the circumstances, he, as well, faulted the High Court for

holding that the appellant failed to prove his case to the required stand of

establishing a prima facie case and not just to draw inferences on balance

of probabilities as in normal civil cases, as it can be seen at page 655 of the

record of appeal.

Further, Mr. Mpoki faulted the High Court for relying on the

respondent's assertion that, the amendment of the BRADEA is saved by

Article 30 (2) of the Constitution holding that the justification for the

amendment of section 4 of the BRADEA, particularly subsection (2), is to

limit individual or litigants who have their cases admitted in court.

According to him, the respondent admitted that the amendment took away

rights of prospective petitioners. He referred us to pages 30 and 31 of the

43
record of appeal where the respondent replied to the originating summons

to the effect that, the impugned provisions of the BRADEA do not violate

Article 26 (1) and (2) of the Constitution but rather are saved under the

provisions of Article 30 (2) of the Constitution; and that what the impugned

provisions have done, is to compliment what is in the Constitution. He, as

well, referred us to paragraph 14 of the respondent's counter affidavit

found at page 37 of the record of appeal where he intimated that, the

respondent admitted to the existence of limitation brought by the

amendment of the BRADEA without indicating what it is. For easy

reference, the petitioner claimed under paragraph 9 of his affidavit that:

nThat Constitution provides for the right to non-

discrimination, the right to be heard and access to
court, as well as the duty to respect the Constitution
and laws o f the land, the duty to protect the
Constitution and the right to enjoy fundamental
human rights by all individuals and state organs."
[see page 15 of the record of appeal].
In response, at page 37 of the record of appeal, the respondent

stated:

"That the contents o f paragraph 9 o f the

Petitioner's affidavit are noted. The respondent

44
 states that such rights are not absolute and
their limitations are permitted under the
provisions o f the Constitution and that the
amendment o f the BRADEA has position
objective towards protection against abuses o f
court process initiated by frivolous and
vexatious petition. "[Emphasis added].

Apart from that, Mr. Mpoki took us to page 77 of the record of appeal

where, among the proposed issues by the respondent was:

"Whether the impugned provisions are saved by

Article 30 (2) o f the Constitution."
In addition, he said, the respondent did not indicate to us to which

part of Article 30 (2) of the Constitution she was making reference to,

because that sub-Article has six (6) paragraphs (a) to (f). Un expectedly,

even the High Court made a similar conclusion that the violations

complained of were made in good faith and thus are saved under Article 30

(2) of the Constitution with no mention of a specific part of the sub article

referred.

The learned counsel also referred us to page 701 of the record of

appeal where the High Court took the view that, the question as to whether

or not the impugned provisions of the BRADEA are saved by Article 30 (2)

45
of the Constitution was not proved by the appellant in paragraph 3, 6 and 7

of the originating summons. Relying on the principle in the decision of

Julius Ndyanabo (supra), Mr. Mpoki argued that, since the respondent

admitted that there is restriction on fundamental rights, the appellant had

no obligation to prove what had been admitted by the other side. In the

circumstances, he argued, the High Court ought to have agreed with the

appellant and show that there was an infringement of fundamental right

because there was nothing to say otherwise in the record. Instead, he

wondered, at page 702 of the record of appeal, the High Court advanced

six reasons why the petition failed which he argued, were extraneous

because they did not come from the record. Being guided by the decision in

Ndyanabo's case (supra), it was his firm submission, that the High Court

was wrong to rely on what was not stated by the respondent as they failed

to show that the restriction was necessary under Article 30 (2) of the

Constitution.

Mr. Mpoki brought to our attention the fact that, the petitioner raised

an alarm to the High Court that the respondent did not show public interest

that is saved through the provision of the law that discriminates ordinary

persons seeking to vindicate the Constitution as required under Article 26

46
(2) of the Constitution, but the High Court did not consider it. However,

ultimately, the High Court decided based on factors not stated by the

respondent. He thus urged us to set aside the holding of the High Court

that the appellant failed to prove the violation of fundamental right, to the

required standard; instead, it was the respondent who failed to discharge

her duty and allow the appeal.

Replying to the submission by Mr. Mpoki, Ms. Sekimanga submitted

that, much as they are aware of the decision of the Court in The Attorney

General v. Dickson Paulo Sanga, the Constitution is a mother law, so

for such petition, the standard of proof has to be beyond reasonable doubt.

According to her, the amendment of section 4 of the BRADEA to include

subsections (2) to (5) is saved by Article 30 (1) and (2) (a) and (b) of the

Constitution as stated by the respondent in her reply written submissions to

the petitioner's written submissions, as it can be seen at page 91 of the

record of appeal.

This ground of appeal invites us to determine what is the standard of

proof required in constitutional matters and whether the contested

amendment was saved by article 30 (1) and (2) (a) and (b) of the

Constitution as was argued by Ms. Sekimanga. Mr. Mpoki addressed us at

47
length as to how the High Court misdirected itself by holding that the

standard of proof required in constitutional matters is beyond reasonable

doubt. However, we did not receive any response meriting our attention

from Ms. Sekimanga or any one from her team. Her reply was merely that

the standard of proof is beyond reasonable doubt because the Constitution

is a Mother Law. We did not know why Ms. Sekimanga thought we would

accept her reasoning to be the justification for imposing such a higher

standard of proof in constitutional matters! At least, we were unable to

fathom the reasoning. In determining this issue, the High Court at page

655 of the record of appeal, had this to say:

"Needless the afore [mentioned] findings, we

agree with the submission in reply by the
Respondent on four points: One, the standard
required in petition o f this kind is that o f
establishing a prima facie case and not just to
draw inferences on balance o f probabilities as in
normal civil cases. Our jurisprudence on
standard o f proof on constitutional case can be
traced [in] the case o f Rev: Christopher
Mtikiia v. Attorney General [1995] TLR 31
and later confirmed in several decisions
including the case o f Centre for Strategic
48
 Litigation Limited & Another v. Attorney
Genera! & 2 Others, Misc. Civii Cause No. 21
o f 2019 (unreported). A proof by establishing a
prima facie case (Criminal) was also restated in
the case o f The Attorney General v. Dickson
Paul Sanga, Civil Appeal No. 175 o f 2020,
Court o f Appeal o f Tanzania at Dar es salaam
(unreported)"
With respect, we wish to state at once, as correctly submitted by Mr.

Mpoki, that there was a serious misdirection on the part of the High Court

because the cited High Court decisions set a different position from what

the Court held in the case of The Attorney General v. Dickson Paul

Sanga (supra). At the expense of clarity, we find it necessary to reproduce

what the Court said in Dickson Paul Sanga's case (supra) while making

reference to the case of Julius Ndyanabo (supra) here under:

"In the light o f the cited case, we agree with the

respondent that, while the respondent had a duty to
establish a prima facie case which he discharged, the
burden shifted to the appellant who was duty bound
to prove that the impugned provision is not violative
o f the Constitution. We need not say more. In the
premisses, we do not agree with the appellant
that in constitutional petitions it is incumbent
49
 on the petitioner to prove his case beyond
reasonable doubt This renders the fifth ground o f
appeal not merited." [Emphasis added]
As it can be observed from the excerpt above, the Court pronounced

itself clearly that the standard of proof required in Constitutional Petitions is

notbeyond reasonable doubt. Besides, we are not amused by the

argument by Ms. Sekimanga that the standard of proof in Constitutional

Petitions is high because the Constitution is a mother law. In the same

vein, we as well decline her invitation that we should depart from our

position in The Attorney General v. Dickson Paulo Sanga (supra) for

any reasons.

We will now address the issue of whether the disputed amendment is

saved by Article 30 (1) and (2) (a) and (b) of the Constitution, as was

contended by Ms. Sekimanga. Article 30 (1) and (2) (a) and (b) of the

Constitution is to the following effect:

"30 -(1) The human rights and freedoms, the principles

o f which are set out in this Constitution, shall not be
exercised by a person in a manner that causes
interference with or curtailment o f the rights and
freedoms o f other persons or o f the public interest.

50
 (2) It is hereby declared that the provisions contained
in this Part o f this Constitution which set out the
principles o f rights, freedom and duties, does not
render unlawful any existing law or prohibit the
enactment o f any law or the doing o f any lawful
act in accordance with such law for the purposes

of;
(a) ensuring that the rights and freedoms o f other
people or o f the interests o f the public are not
prejudiced by the wrongful exercise o f the
freedoms and rights o f individuals;
(b) ensuring the defence, public safety, public peace,
public morality, public health, rural and urban
development planning, the exploitation and
utilization o f minerals or the increase and
development o f property o f any other interests for
the purposes o f enhancing the public benefit"
We will deal with the above provisions, one after the other. Article 30

(1) above saves the law whose objective would be to curb situations where

a person's enjoyment of his rights and freedoms may interfere with or

curtail other people from enjoying their rights. The objective of article 30

(2) (a), is to save only laws and actions which are meant to deter

enjoyment of an individual's right which in the process of doing so, it may

51
interfere with interests of the public. Sub-article (2) (b) of article 30 saves

laws and actions which are for the common good of society like ensuring

communal defence and security, public safety, public peace, public

morality, public health, rural and urban development and mineral

exploitation and development projects.

In this case Ms. Sekimanga did not elaborate to us, how would

unrestricted defending the Constitution under article 26 (2) of the

Constitution, interfere with enjoyment of other peoples' rights (article 30

(1)), interfere with interests of the public (article 30 (2) (a)), or impede

realization of the communal good (article 30 (2) (b)).

In summary, firstly, being guided by the doctrine of recent decision,

we cannot casually depart from the position we set in Dickson Paul

Sanga (supra) that, in constitutional petitions it is not incumbent on the

petitioner to prove his case beyond reasonable doubt. Secondly, the

amendment to section 4 of the BRADEA is not saved by article 30 (1) and

(2) (a) and (b) of the Constitution. Having said so, we allow the 6th ground

of appeal.

Regarding the 8th ground of appeal, Mr. Seka submitted that the High

Court erred in holding that the exhaustion of available remedies as

52
provided for under subsection (5) of section 4 of the BRADEA was a

condition precedent before seeking redress through a constitutional

petition. He was of the firm position that if this provision is to be connected

with Article 26 (1) of the Constitution, that provision is unconstitutional. He

urged the Court to pronounce itself as to whether the BRADEA covers the

right under Article 26 (1) and (2) of the Constitution. This, he said, is

because we have no procedure to safeguard rights under that Article.

In addition, he said, this right has been exercised in adjudication of

matters without problems for quite long and without a requirement of

exhausting other remedies. He cited some examples including; The

Director of Public Prosecution v. Daudi Peter (supra) and Kukutia

Ole Pumbun and another v. The Attorney General [1993] TLR 159;

Chumchua Marwa v. Officer i/c Musoma Prison & The Attorney

General, Misc. Criminal Cause No. 2 of 1988 (unreported).

Therefore, for him the introduction of a requirement of exhaustion of

other available remedies under any other written laws, is unconstitutional.

Mr. Seka tried to evaluate whether there are other available remedies in

other laws and it was his submission that, first, if one is to file a civil suit

by plaint or petition, then will be required to show that he or she is

53
personally affected. As a result, the right under Article 26 (1) of the

Constitution is not available. Second, if one thinks of an appeal, this is a

right of a person aggrieved by a decision, thus, has a personal interest; and

third, in judicial review, he said personal interest has to be shown in the

sense that one has to show how he or she is affected personally. The

learned counsel insisted that these are the only three ways he could think

of. He challenged the counsel for the respondent for not mentioning any of

the remedies envisaged or referred to under subsection (5) of section 4 of

the BRADEA.

He opposed the submission by the respondent at the High Court

where it was stated that one can approach the court through the

Commission for Human Rights and Good Governance to enforce a public

right. It was his argument that, if one has to approach the court through

that route, he or she will not succeed because section 22 (4) (b) of the

Commission for Human Rights and Good Governance Act requires first

exhaustion of all available remedies. Therefore, he submitted that those are

not available to a person who has no personal interest. He took the view

that, the requirement of showing personal interest and exhaustion of other

available remedies which do not exist constituted an overreaction by the

54
Parliament through the amendment. He faulted the legislature for not

considering what is provided for by case law regarding exhaustion of

available remedies. He supported his argument with the decision of the

Court in Kukutia Ole Pumbun case (supra) at page 217 to 218, where it

is stated that whoever wants to vindicate the Constitution is free to choose

the venue and forum.

Mr. Seka submitted firmly that subsection (5) of section 4 of the

BRADEA is vague by referring to all available remedies which do not exist.

He went on to argue that the BRADEA contradicts what is provided in the

Constitution. It was his further argument that currently, a person who

knocks the door of the court under Article 26 (1) of the Constitution has to

follow an unwritten procedure. He urged us to allow this ground of appeal.

Ms. Sekimanga responded that, the alternative available remedies

referred to under subsection (5) of section 4 of the BRADEA are provided

by other laws. Without disclosing to us which were those laws, she cited

the case of Freeman Aikael Mbowe v. The Director of Public

Prosecutions and Others (Civil Appeal No. 382 of 2021) [2024] TZCA

836 (30 August 2024), referring us to page 11 of that decision. Also, she

referred us to page 698 of the record of appeal and concurred with the

55
decision of the High Court which held that the requirement of exhaustion of

other available remedies was in existence in the BRADEA even before the

amendment of section 4.

Having heard the rival arguments from the counsel for the parties,

the issue as to whether subsection (5) of section 4 of the BRADEA is

unconstitutional calls for our determination. Mostly, as it requires

exhaustion of alternative available remedies before lodging constitutional

petition. This issue need not detain us much. The impugned provision

provides:

"(5) A petitioner shall, prior to seeking redress

under this Act, exhaust all available
remedies under any other written laws. "
[Emphasis added]

The question that follows is: What are those available remedies? Mr.

Seka submitted firmly that, there are no other available remedies for a

constitutional petitioner acting under Article 26 (1) of the Constitution to

enforce the rights under the Constitution, Ms. Sekimanga had nothing

useful to respond. She referred us to the decision of the Court in Freeman

Aikael Mbowe's (supra), which is by very far distinguishable from the

matter at hand. The said case was not a public interest petition. The
56
appellant therein was fighting for his personal rights. On appeal, the Court

distinguished between illegal conducts and those which are unconstitutional

per se and came up with the conclusion that effective remedies to address

the appellant's complaints exist within the ordinary law and thus the

petition was premature for want of exhaustion of the available remedies.

Apart from that decision, Ms. Sekimanga referred us to page 698 of

the record of appeal where the High Court said that, the requirement to

exhaust local remedies was in existence in the BRADEA even before the

amendment of that Act and that section 4 of the BRADEA is a replica of

section 8 (2) of the same Act. It is relevant at this juncture to consider if

that provision existed, why then was it necessary to have subsection (5) of

section 4 of the BRADEA? According to Mr. Seka, the amendment of that

provision to include subsection (5) of section 4 was unnecessary and an

overreaction on the part of the Parliament. As such, he said, the impugned

provision hinders a prospective petitioner who intends to exercise his right

under Article 26 of the Constitution.

We had an opportunity to revisit section 8 (2) of the BRADEA which

provides:

57
 "(2) 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, or that the application is merely
frivolous or vexatious."

In the light of the provisions above, we agree with the High Court

that the said requirement existed even before the amendment of section 4

of the BRADEA. We note that at page 699 of the record of appeal, the High

Court agreed with the petitioner that exhaustion of [available] local

remedies is a challenging component as it is not easy to make a clear and

direct claim of exhaustion of available remedies. Nonetheless, through the

discussion and determination, the High Court failed to answer the

appellant's argument that there are no other available remedies to enforce

the right under Article 26 of the Constitution except by way of petition to

the High Court, as it has been the practice since the introduction of the Bill

of Rights in the Constitution.

In the circumstances and having weighed the arguments by the

counsel for the parties, we agree with the appellant's position. As such, in

terms of Articles 26 and 30 (3) of the Constitution, the High Court is vested
58
with powers to deal with constitutional matters seeking to protect the

Constitution or expose its violation. We are of the considered view that, the

inclusion of subsection (5) of section 4 of the BRADEA was necessitated by

the whole idea of requiring a public interest petitioner to file an affidavit

demonstrating his personal interest in the petition as introduced by

subsection (2) of the same Act which we have already declared

unconstitutional. With that idea, it is possible to require a petitioner, since

the petition will be on personal interest, to exhaust other available

remedies before instituting a constitutional petition, as it was decided in the

case of Freeman Aikael Mbowe (supra) cited to us by Ms. Sekimanga.

Short of that, we must say, currently there are no known regulations to

enforce Article 26 of the Constitution other than the practice which had

existed for quite a number of years in our legal system. For that reason, we

find that the amendment of section 4 of the BRADEA to include subsection

(5) was superfluous and quite unnecessary in the circumstances. The 8th

ground of appeal is thus, merited.

Having made the above findings that the impugned provisions of the

BRADEA are unconstitutional, we allow the appeal, set aside the judgment

of the High Court and reverse all the resultant orders that were issued by
59
that court. Finally, we direct that, within 12 (twelve) months from the date

of this judgment, sections 6 and 7 of the Written Laws (Miscellaneous

Amendments) (No. 3) Act, 2020, which amended section 4 of the BRADEA,

be repealed by the Parliament of the United Republic of Tanzania; failure of

which, the amendment under consideration in that Act shall have no legal

force. We make no order as to costs.

DATED at DAR ES SALAAM this 12th day of June, 2025.

M. C. LEVIRA
JUSTICE OF APPEAL

S. M. RUMANYIKA
JUSTICE OF APPEAL

P. J. NGWEMBE
JUSTICE OF APPEAL

The Judgment delivered this 13th day of June, 2025, via video link, in

the presence of the Appellant in person who was also represented by Prof.

Shivji Issa, Mr. John Seka, Mr. Rugemeleza Nshala, Mr. Paul Kisabo, all

learned advocates for the Appellant and Ms. Narindwa Sekimanga, learned

Senior State Attorney assisted by Ms. Lucy Kimaryo, learned State Attorney

for the Respondent is hereby c / of the original.

J. E. FOVO
DEPUTY REGISTRAR
COURT OF APPEAL