MZUMBE UNIVERSITY

FACULTY OF LAW

SUBJECT NAME: ADMINSTRATIVE LAW II

COURSE NAME: CONSTITUTION AND ADMINISTRATIVE LAW

COURSE CODE: ML 503

NAME: RAI SULEIMAN

REG No: 1246274/T.23

LECTURER: DR. COSMAS

TYPE OF WORK: TERM PAPER

DATE OF SUBMISSION: MAY 2024

QUESTION:
Read and Discus the case of, ONESMO OLENGURUMWA Vs ATTORNEY GENERAL
Miscellaneous civil cause NO. 9 OF 2021
 TABLE OF CONTENTS
ONESMO OLENGURUMWA V ATTORNEY GENERAL (MISC. CIVIL CAUSE 9 OF 2021)
[2022] TZHC 17011.................................................................................................................1

1.0. Material Facts...........................................................................................................................1

2.0. Issues........................................................................................................................................2

3.0. Arguments of the Parties..........................................................................................................2

1. Whether section 4(2) of BRADEA violates article 13(4) of the Constitution..........................2

2. Whether section 4(3) of BRADEA constitutes a violation of Article 26(2) of the

3. Whether section 4(4) of the Basic Rights and Duties Enforcement Act violates Article 13(6)
(a) and article 26(1) of the Constitution of the United Republic of Tanzania, thus being
unconstitutional........................................................................................................................5

4. Whether section 4(5) of the Basic Rights and Duties Enforcement Act contravenes articles
13(6) (a) and 26(1) of the Constitution of the United Republic of Tanzania, rendering it
void……...................................................................................................................................6

5. Whether the impugned provisions are saved by article 30(2) of the Constitution...................8

4.0. Principle Governing the Case of Onesmo Olengurumwa........................................................8

5.0 Relevance of that Case to the Development of the Jurisprudence of Government Liabilities. 9

5.1 Balancing Individual Rights and State Interest........................................................................9

5.2 Clarification of Remedial Pathways.........................................................................................9

REFERENCES..............................................................................................................................10

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 ONESMO OLENGURUMWA V ATTORNEY GENERAL (MISC. CIVIL CAUSE 9 OF
2021) [2022] TZHC 17011

1.0. Material Facts

The petitioner, a long-time and experienced human rights activist, is contesting the
constitutionality of Sections 4(2), 4(3), 4(4), and 4(5) of the Basic Rights and Duties
Enforcement Act (BRADEA). He claims that these portions are unconstitutional and void
because they attempt to change the United Republic of Tanzania's Constitution, specifically
Article 26(2), without adequate deliberation by the Constitution's framers.1

The petitioner bears the burden of proof, which is to prove a prima facie case demonstrating the
infringement of rights, the manner in which it occurred, and the relief sought. However,
legislation is believed to be constitutionally valid, and the petitioner must overcome this
presumption by establishing the unconstitutionality of the challenged sections. If the Petitioner
successfully proves prima facie unconstitutionality, it is then up to the respondent to argue the
validity of the provisions.2

To determine the constitutionality of the challenged clauses, multiple tests are used. These
include examining whether the provisions delegate basic policy matters to the court on uncertain,
discriminatory, or arbitrary bases (vagueness); whether they treat citizens differently and
arbitrarily, thus violating equality before the law (differential treatment); and whether they
satisfy the proportionality test by being rationally connected to their objective, not impairing
constitutional rights, and demonstrating proportionality between their effects and Additionally,
conformity with international human rights standards is taken into consideration.3

The petitioner desires a determination that the challenged portions of the BRADEA are in
conflict with different articles of the United Republic of Tanzania's Constitution, particularly
those pertaining to rights and freedoms. However, the Respondent disputes these statements,

1
[2022] TZHC 17011 at p 1.
2
Ibid, p 3
3
Ibid, p 3-4

1
claiming that the issues do not have obvious answers and cannot be answered through the
mechanical application of logic or principles.4

2.0. Issues
1. Whether section 4(2) of BRADEA violates article 13(4) of the Constitution.
2. Whether section 4(3) of BRADEA constitutes a violation of Article 26(2) of the
Constitution, rendering it unconstitutional and void.
3. Whether section 4(4) of the Basic Rights and Duties Enforcement Act violates Article
13(6) (a) and article 26(1) of the Constitution of the United Republic of Tanzania, thus
being unconstitutional.
4. Whether section 4(5) of the Basic Rights and Duties Enforcement Act contravenes
articles 13(6) (a) and 26(1) of the Constitution of the United Republic of Tanzania,
rendering it void.
5. Whether the impugned provisions are saved by article 30(2) of the Constitution.

3.0. Arguments of the Parties

According to the petitioner, the restriction in imposed by the Constitution of the United Republic
of Tanzania under article 13(6) is absolute and unfettered. The State is not supposed to
discriminate against any person when discharging its functions under any law. However, section
4(2) of BRADEA requires the High Court to refuse to admit any petition from an ordinary
person not accompanied by an affidavit showing personal interest, while exempting the
Commission for Human Rights and Governance (CHRAGC) from this requirement. The
Petitioner argues that this requirement violates article 13(4) of the Constitution, which prohibits
discrimination by state organs.5 Drawing on a previous court decision, the petitioner asserts that
the court cannot be enlisted to assist in such violations. Therefore, the petitioner urges the court
to declare section 4(2) of BRADEA unconstitutional and void.6

Furthermore, the Petitioner contends that section 4(2) of BRADEA violates article 13(6)(a) of
the Constitution by denying petitioners the right to a fair hearing. The Petitioner argues that the
4
[2022] TZHC 17011 at p 4-5.
5
OnesmoOlengurumwav Attorney General [2022] TZHC 17011 at pp 6-13
6
OnesmoOlengurumwa v Attorney General[2022] TZHC 17011 at pp 13-16

2
right to equality before the law and the right to a fair hearing are fundamental human rights, as
guaranteed by Article 13(6)(a). The Petitioner cites previous court decisions to support the
importance of fair trials and argues that Section 4(2) introduces inappropriate and restrictive
procedures that hinder access to justice. Therefore, the Petitioner calls on the court to declare
Section 4(2) unconstitutional for violating article 13(6)(a).7

Regarding whether section 4(2) of BRADEA violates Article 26(1) and 26(2) of the Constitution,
the Petitioner highlights the duty of every person to observe and abide by the Constitution and
laws of Tanzania, as well as the right to take legal action to protect these rights. The Petitioner
argues that Section 4(2) offends these principles by introducing restrictive procedures that hinder
access to justice. Therefore, the Petitioner urges the court to declare Section 4(2) unconstitutional
and void, citing previous court interpretations of similar constitutional provisions.8

In response, the Respondent argues that section 4(2) of BRADEA introduces a requirement for
petitioners to exhibit the extent of their interest in an affidavit, with an exception for CHRAGG. 9
The Respondent justifies this requirement as necessary to prevent frivolous and vexatious
petitions that burden the judicial system. The Respondent cites a previous court decision to
support the need for such safeguards against abuse of the legal process. Additionally, the
Respondent argues that the requirement aims to protect bona fide petitioners and ensure the
efficient disposal of genuine cases. Therefore, the Respondent maintains that Section 4(2) serves
a legitimate purpose and should not be deemed unconstitutional.10

The respondent further argues that the differential treatment between CHRAGG and other
petitioners does not constitute discrimination under the Constitution. The Respondent cites
international legal principles to support the notion that not all forms of differential treatment are
discriminatory. Moreover, the Respondent asserts that the burden of proof rests with the
Petitioner to demonstrate discrimination, which has not been adequately done. Therefore, the
Respondent concludes that Section 4(2) of BRADEA is constitutional and necessary for the
effective administration of justice.11

7
Ibid, pp 17-19
8
Ibid, p 20.
9
Ibid, p 21.
10
Ibid, pp 21-23
11
OnesmoOlengurumwav Attorney General [2022] TZHC 17011 at pp 24-26

3
In consideration of these arguments, the court acknowledges the importance of procedural rules
for assessing the reliability and fairness of petitions. While recognizing the constitutional
principles at play, the court ultimately upholds the constitutionality of Section 4(2) of BRADEA,
finding it compliant with the Constitution's directive to legislate procedures for enforcing basic
rights and duties.12

2. Whether section 4(3) of BRADEA constitutes a violation of Article 26(2) of the

The petitioner's argument centres on the interpretation of constitutional provisions and their
conformity with the requirements of the BRADEA. They claim that Section 4(2) of the
BRADEA breaches several elements of the Constitution, including Article 13(4)
(discrimination), article 13(6)(a) (fair hearing), and elements 26(1) and 26(2) (obligation to
observe and adhere by the Constitution and right to take legal action). 13

The petitioner claims that the BRADEA's demand for an affidavit demonstrating personal
interest unfairly disadvantages ordinary individuals in comparison to the Commission for Human
Rights and Good Governance (CHRAGG), which is immune from such restrictions. They
believe that this breaches the concept of equality under the law and the right to a fair hearing. 14

Furthermore, the petitioner objects to the BRADEA's linking of Articles 26(2) and 30(3) of the
Constitution, contending that they are independent. They use legal precedent and scholarly
opinion to argue that this linkage is unlawful and represents an attempt to modify the
Constitution indirectly through ordinary legislation.15
In reply, the respondent defends the BRADEA's provisions, claiming that they serve to
discourage frivolous and vexatious petitions while protecting legitimate petitioners. They argue
that procedural constraints, such as the affidavit of personal interest, are necessary filters to
prevent the court from wasting time on meritless matters.16
12
Ibid
13
OnesmoOlengurumwav Attorney General [2022] TZHC 17011 at pp 36-39
14
Ibid
15
OnesmoOlengurumwav Attorney General [2022] TZHC 17011 at pp 40-42
16
Ibid, p 42

4
The respondent also argues that the linkage between article 26(2) and article 30(3) under the
BRADEA is procedural and not substantive. They contend that the BRADEA's provisions align
with the Constitution's requirement for procedural laws to enforce basic rights and duties.17

The court ultimately agrees with the respondent, finding that the BRADEA's provisions are
consistent with the Constitution's requirements for procedural laws to enforce basic rights and
duties. They reject the Petitioner's argument that the linkage between article 26(2) and article
30(3) is unconstitutional, holding that it falls within the scope of procedural enforcement. Indeed,
they dismiss the scholarly opinion cited by the Petitioner as not having binding effect on the
court's decision.18

3. Whether section 4(4) of the Basic Rights and Duties Enforcement Act violates Article
13(6) (a) and article 26(1) of the Constitution of the United Republic of Tanzania, thus
being unconstitutional

The petitioner challenges the inclusion of certain high-ranking officials, such as the Vice
President, Prime Minister, and Deputy Speaker, under section 4(4) of the BRADEA, arguing that
they are not the heads of state organs. They contend that the literal interpretation of the law only
includes the President, Speaker, and Chief Justice as heads of state organs.

The court acknowledges the literal interpretation but cautions against over-literalism,
emphasizing the need to consider the wider context, purpose, and intent of the law. They cite
legal precedent and the principles of statutory interpretation to support their reasoning. 19

Furthermore, the court considers the practical implications of suing high-ranking officials
directly versus through the Attorney General. They find that while Section 4(4) changes the
procedure for suing these officials, it does not grant them immunity. Rather, it streamlines the
process by making the Attorney General the focal point for legal action against them. 20

17
Ibid
18
Ibid, pp 43-44
19
OnesmoOlengurumwav Attorney General [2022] TZHC 17011 at pp 45-46
20
Ibid, 48.

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The court also addresses concerns raised by the Petitioner regarding discrimination and the
accountability of government leaders. They emphasize the principle of equality before the law
and the accountability of all individuals, including government officials. They argue that while
the Attorney General facilitates legal proceedings against high-ranking officials, they are not
immune from accountability.21

Furthermore, the Court emphasises the significance of procedural flexibility in order to ensure
justice is delivered. They emphasise the importance of proper and essential parties in judicial
procedures, citing legal concepts and precedents to support their position.22

Finally, the Court decides that Section 4(4) of the BRADEA does not offer immunity to high-
ranking officials, but rather modifies the mechanism for taking legal action against them. They
argue that the Attorney General's role in aiding legal processes is consistent with their
responsibilities as the government's primary legal advisor.23

4. Whether section 4(5) of the Basic Rights and Duties Enforcement Act contravenes
articles 13(6) (a) and 26(1) of the Constitution of the United Republic of Tanzania,
rendering it void

The petitioner refutes the contention that section 4(4) of BRADEA covers the heads of the
organs of the state. They argue that the literal interpretation of the BRADEA's object was to
cover only the President, Speaker, and Chief Justice, not the Vice President, Prime Minister, or
Deputy Speaker.24

Moreover, the petitioner clarifies that Section 4(4) does not mention the Deputy Prime Minister,
suggesting it's an error. They caution against over-literal interpretation of statutes, emphasizing
the need to consider the wider context and purpose of the law.25

The Petitioner argues that while Section 4(4) requires proceedings against heads of state to be
brought against the Attorney General, it doesn't grant immunity to these officials. They stress

21
Ibid, 54
22
Ibid, 58-60
23
Ibid, 61.
24
OnesmoOlengurumwav Attorney General [2022] TZHC 17011 at pp 61-62
25
Ibid, pp 63-66

6
that the President, Vice President, Prime Minister, etc., can still be sued, but the procedure
involves the Attorney General.26

Regarding whether the President is considered a public officer, the Petitioner references the
Interpretations of Laws Act and concludes that the President is not a public officer. They
emphasize that suing high-ranking officials through the Attorney General doesn't grant them
immunity.

Moving on to Section 4(5) of BRADEA, the petitioner contends that it aims to prevent
petitioners from accessing the courts by requiring them to exhaust all available remedies under
other laws. They argue that this provision restricts access to justice and contradicts the principle
of legal certainty.27

Citing legal precedents, the petitioner asserts that individuals should have the freedom to choose
the most suitable legal recourse to vindicate their rights, rather than being forced to follow a
specific procedure.28

Furthermore, they question the practicality of exhausting all remedies under other laws,
considering the finite nature of human life and the impermanence of political leaders. They warn
against Section 4(5) becoming a barrier to justice, potentially leading to self-help measures. 29

The Petitioner argues that Section 4(5) violates constitutional provisions guaranteeing the right to
a fair trial and access to justice. They emphasize the judiciary's role in interpreting the
constitutionality of laws and challenge the Respondent to prove the constitutionality of section
4(5).

In response, the respondent argues that section 4(5) is not a new provision but aligns with the
previous Section 8(2) of BRADEA, emphasizing the need to exhaust available remedies under
other laws before resorting to BRADEA.30

26
Ibid
27
Ibid, 69
28
Ibid
29
Ibid
30
OnesmoOlengurumwav Attorney General [2022] TZHC 17011 at pp 69-71

7
They highlight the existence of other mechanisms, such as CHRAGG, for addressing human
rights complaints and argue that BRADEA should be a last resort, not an alternative to existing
remedies.

The respondent stresses that the Constitution and laws establish various organs for redress, and it
would be impractical to render them redundant by funneling all complaints to the courts.

In conclusion, the Petitioner urges the court to declare Section 4(5) unconstitutional, while the
Respondent defends its alignment with existing legal provisions and the necessity of exhausting
other remedies before resorting to BRADEA.31

5. Whether the impugned provisions are saved by article 30(2) of the Constitution

The respondent argues that the issue regarding the impugned provisions of the Basic Rights and
Duties Enforcement Act (BRADEA) does not warrant extensive discussion. They point out that
paragraphs 3, 6, and 7 of the Originating Summons fail to provide any substantive evidence.
Respondent contends that the provisions of the BRADEA do not contravene Articles 13(2),
13(4), 13(6)(a), 26(1), 26(2), and 30(3) of the Constitution, but rather are saved under Article
30(2) of the same Constitution. Article 30(2) stipulates that the provisions within this part of the
Constitution, which delineate the principles of rights, freedoms, and duties, do not render
unlawful any existing law or prohibit the enactment or execution of any lawful act in accordance
with such law for the specified purposes.32

4.0. Principle Governing the Case of Onesmo Olengurumwa

The principle governing that case is requirement to exhaust all available local remedies before
seeking redress under Basic Right and Duties Enforcement Act (BRADEA). This principle is
based on the interpretation of section 4(5) and 8(2) of the BRADEA. The principle ensures that
petitioner pursue other legal procedures before turning to constitutional petitions. It supports the
efficient operation of the legal system, allows for potential conflict resolution without the need
for constitutional litigation, and gives the government the ability to address human rights
violations through current channels.

31
Ibid
32
OnesmoOlengurumwav Attorney General [2022] TZHC 17011 at p 79.

8
 5.0 Relevance of that Case to the Development of the Jurisprudence of Government
Liabilities
5.1 Balancing Individual Rights and State Interest
The case strikes a compromise between protecting individual rights and the interests of the
government. While confirming individuals' rights to seek redress for alleged abuses, it also
recognises the importance of ensuring that such grievances are addressed through suitable
channels, taking into account the larger implications for governance and public administration.

5.2 Clarification of Remedial Pathways

The case emphasizes the significance of exhausting all possible local remedies before turning to
constitutional petitions. This clarification simplifies the legal procedure and ensures that litigants
pursue appropriate channels of remedy, which is critical in cases involving government
responsibilities.

9
 REFERENCES

Constitution of the United Republic of Tanzania [Cap 2 R.E 2008]

STATUTE
Basic Rights and Duties Enforcement Act [Cap 3 R.E 2019]

CASE LAW
OnesmoOlengurumwa v Attorney General [2022] TZHC 17011

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