Informer
JF-Expert Member
- Jul 29, 2006
- 1,606
- 6,672
In view of a legislative bill that seeks to abolish public interest litigation lawsuits, private citizens and civil society organisations in Tanzania may soon no longer have the right of access to court to challenge arbitrary laws and human rights violations in public interest.
The proposed abolition of public interest litigation is introduced by a bill (Written Laws (Miscellaneous Amendments) Act, №3 of 2020)). This legislation seeks to bar individuals and civil society organisations from instituting petitions to enforce constitutional human rights except if they can show that they have personally been affected by the law or government action complained about.
This is a dangerous but hardly suprising development in an environment where the government has, in the course of the past 5 years, adopted a raft of restrictive laws and legislation that limit media freedom, freedom of expression and the activities of nongovernmental organisations and political opposition.
The effect of this amendment is to take away the right of individuals and civil society organisations to access the court and challenge governmental transgression of constitutional human rights. For ordinary Tanzanians whose access to court is already limited by social and economic constraints, the outlawing of public interest litigation creates an additional barrier in holding government accountable for abuse of public power and violations of the law and the Constitution.
For more than two decades, however, the Tanzanian Constitutional Court has recognised not only the existence of the principles of public interest litigation but also the fact that they emerge from the Constiution, specifically the constitutional human rights guaranteed under Articles 12–29 of the Constitution.
In the landmark case of Christopher Mtikila v. the Attorney General [1995] TLR 31 challenging the prohibition of independent political candidates, the Court held that “The principles of public interest litigation are expressed in the Constitution of Tanzania by vesting in every person the capacity of an individual by virtue of articles 12 to 24[currently article 12 to 29] of the Constitution, and the capacity of a member of the community by virtue of articles 25 to 28 of the Constitution, thereby equipping the individual with double standing to sue.”
In addition to the constitutional basis of public interest litigation, the Court also clarified that individuals have the right to enforce basic rights violations even if they have no personal interest in the matter:
“The orthodox common law position regarding locus standi no longer holds good in the context of constitutional litigation in that the notion of sufficient personal interest over and above the interest of the general public has more to do with private law rather than public law; in matters of public interest litigation the Court will not deny standing to a genuine and bona fide litigant even where he has no personal interest in the matter.”
These principles have been reaffirmed in numerous Constitutional Court decisions and have formed the basis of enforcement of human rights and defence of the rule of law and constitutionalism in Tanzania. In cases where the Court invalidated arbitrary laws, Public Interest Litigation has contributed to the protection of individual rights and proper understanding of the law. These includes constitutional petitions upholding the rights of: political participation (Christopher Mtikila vs The Attorney General (1995) TLTR 31); access to court (Kukutia ole Pumpuni v Attorney General (1993) TLR 159)); personal liberty (DPP v. Daudi Pete [1993] TLR 22); fair trial (Jeremia Mtobesya v The Attorney General(2015); and and presumption of innocence (Dickson Sanga v. The Attorney General (Miscellaneous Civil Cause №29 of 2019,issued on 18th May 2020)).
Public Interest Litigation has also been used to advance women’s inheritance rights, rights of the child (abolition of child marriage) and land rights of indigenous groups.
As regards constitutionalism, Public Interest Litigation has been an important mechanism to defend the rule of law. The most recent cases include constitutional petitions challenging President Magufuli’s controversial appointment of the Attorney General, Adelardus Kilangi, and removal of the Controller and Auditor General, Prof Assad as well as the discretion of the Speaker of National Assembly to reinstate opposition legislators who lost their parliamentary seats by operation of law after defecting to the ruling Party, CCM.
From this perspective, therefore, the abolition of public interest litigation lawsuits is not only inconsistent with well-established case law but also the Constitution which recognises the right of an individual to file public interest lawsuits in a court of law in defence of the Constitution and fundamental rights contained in it.
Since coming to power in 2015 President Magufuli, nicknamed The Bulldozer, has openly demonstrated desire for absolute power and willingness to act outside the scope of the law. The government has also enacted numerous laws that interfere exceedingly with fundamental rights under the Tanzanian Constitution examples being the Media Services Act, Cybercimes Act, Political Parties Amendment Act and the notorious Online Content Regulations. It has also unreasonably closed media outlets, suspended journalists and restricted political rallies. In this regard public interest litigation stands as an important tool to challenge the bulldozing power of state and laws that encroach arbitrarily on fundamental human rights.
Generally, public interest litigation aim at addressing public grievances over restrictions and violation of human rights and the law as opposed to individual personal interest of the litigants. If public interest litigation is outlawed, there would be no effective mechanism to vindicate public rights guaranteed by the Constitution. This will put government actions and policy beyond scrutiny by the courts and create room for impunity.
The proposed abolition of public interest litigation is introduced by a bill (Written Laws (Miscellaneous Amendments) Act, №3 of 2020)). This legislation seeks to bar individuals and civil society organisations from instituting petitions to enforce constitutional human rights except if they can show that they have personally been affected by the law or government action complained about.
This is a dangerous but hardly suprising development in an environment where the government has, in the course of the past 5 years, adopted a raft of restrictive laws and legislation that limit media freedom, freedom of expression and the activities of nongovernmental organisations and political opposition.
The effect of this amendment is to take away the right of individuals and civil society organisations to access the court and challenge governmental transgression of constitutional human rights. For ordinary Tanzanians whose access to court is already limited by social and economic constraints, the outlawing of public interest litigation creates an additional barrier in holding government accountable for abuse of public power and violations of the law and the Constitution.
For more than two decades, however, the Tanzanian Constitutional Court has recognised not only the existence of the principles of public interest litigation but also the fact that they emerge from the Constiution, specifically the constitutional human rights guaranteed under Articles 12–29 of the Constitution.
In the landmark case of Christopher Mtikila v. the Attorney General [1995] TLR 31 challenging the prohibition of independent political candidates, the Court held that “The principles of public interest litigation are expressed in the Constitution of Tanzania by vesting in every person the capacity of an individual by virtue of articles 12 to 24[currently article 12 to 29] of the Constitution, and the capacity of a member of the community by virtue of articles 25 to 28 of the Constitution, thereby equipping the individual with double standing to sue.”
In addition to the constitutional basis of public interest litigation, the Court also clarified that individuals have the right to enforce basic rights violations even if they have no personal interest in the matter:
“The orthodox common law position regarding locus standi no longer holds good in the context of constitutional litigation in that the notion of sufficient personal interest over and above the interest of the general public has more to do with private law rather than public law; in matters of public interest litigation the Court will not deny standing to a genuine and bona fide litigant even where he has no personal interest in the matter.”
These principles have been reaffirmed in numerous Constitutional Court decisions and have formed the basis of enforcement of human rights and defence of the rule of law and constitutionalism in Tanzania. In cases where the Court invalidated arbitrary laws, Public Interest Litigation has contributed to the protection of individual rights and proper understanding of the law. These includes constitutional petitions upholding the rights of: political participation (Christopher Mtikila vs The Attorney General (1995) TLTR 31); access to court (Kukutia ole Pumpuni v Attorney General (1993) TLR 159)); personal liberty (DPP v. Daudi Pete [1993] TLR 22); fair trial (Jeremia Mtobesya v The Attorney General(2015); and and presumption of innocence (Dickson Sanga v. The Attorney General (Miscellaneous Civil Cause №29 of 2019,issued on 18th May 2020)).
Public Interest Litigation has also been used to advance women’s inheritance rights, rights of the child (abolition of child marriage) and land rights of indigenous groups.
As regards constitutionalism, Public Interest Litigation has been an important mechanism to defend the rule of law. The most recent cases include constitutional petitions challenging President Magufuli’s controversial appointment of the Attorney General, Adelardus Kilangi, and removal of the Controller and Auditor General, Prof Assad as well as the discretion of the Speaker of National Assembly to reinstate opposition legislators who lost their parliamentary seats by operation of law after defecting to the ruling Party, CCM.
From this perspective, therefore, the abolition of public interest litigation lawsuits is not only inconsistent with well-established case law but also the Constitution which recognises the right of an individual to file public interest lawsuits in a court of law in defence of the Constitution and fundamental rights contained in it.
Since coming to power in 2015 President Magufuli, nicknamed The Bulldozer, has openly demonstrated desire for absolute power and willingness to act outside the scope of the law. The government has also enacted numerous laws that interfere exceedingly with fundamental rights under the Tanzanian Constitution examples being the Media Services Act, Cybercimes Act, Political Parties Amendment Act and the notorious Online Content Regulations. It has also unreasonably closed media outlets, suspended journalists and restricted political rallies. In this regard public interest litigation stands as an important tool to challenge the bulldozing power of state and laws that encroach arbitrarily on fundamental human rights.
Generally, public interest litigation aim at addressing public grievances over restrictions and violation of human rights and the law as opposed to individual personal interest of the litigants. If public interest litigation is outlawed, there would be no effective mechanism to vindicate public rights guaranteed by the Constitution. This will put government actions and policy beyond scrutiny by the courts and create room for impunity.