BRADEA Onesmo

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM MAIN REGISTRY)
AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO: ............. OF 2021

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC

OF TANZANIA 1977 - AS AMENDED FROM TIME TO TIME [CAP. 2 R.E. 2002]
AND
IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT
[CAP. 3 R.E. 2019]
AND
IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY
OF THE PROVISIONS OF THE WRITTEN LAWS (MISCELLANEOUS
AMENDMENT) (NO. 3) ACT, 2020 WHICH AMENDS PROVISION OF THE BASIC
RIGHTS AND DUTIES ENFORCEMENT ACT (CAP. 3 RE 2019)

BETWEEN

ONESMO OLENGURUMWA............................................................................. PETITIONER

AND

THE HON. ATTORNEY GENERAL

OF THE UNITED REPUBLIC OF TANZANIA ...................................... RESPONDENT

ORIGINATING SUMMONS
(Made under Articles 26(2) and 30(3) of the Constitution of the United Republic of Tanzania of 1977 (as amended
from time to time); Sections 4(1), 5 and 6 of the Basic Rights and Duties Enforcement Act, Cap. 3 R.E. 2019; Rule 4
of the Basic Rights and Duties (Practice and Procedure) Rules, 2004 GN.304 of 2014)

LET ALL PARTIES concerned appear before the Honorable Judges of the High Court of
Tanzania…………….……………………………………………………………………………..
sitting in Chamber on the ………of……………… 2021 at 9.00 O’clock in the forenoon or soon
thereafter as may be convenient to the said Honorable Judges of the High Court of Tanzania when
Counsel for the Applicant shall be heard upon an application for the following orders, to wit:-
BRADEA Onesmo

a. DECLARATION that sections 4(2), (3), (4) and (5), of the Basic Rights and Duties
Enforcement Act Cap. 3 [R.E 2019] (hereinafter “BRADEA) as amended contravenes
Article 13(2) and13(4), 13(6) (a), 26 (1) and 26(2) of the Constitution of the United
Republic of Tanzania and consequently unconstitutional and/or void.

b. DECLARATION that in enacting Section 4(2) and (3) of the BRADEA as amended,
the Respondent undermined the important role and the court’s constitutional mandate
to adjudicate and administer substantive justice on matters of public
importance/interest in accordance with article 26 of the Constitution of the United
Republic of Tanzania, 1977 and consequently the said section is unconstitutional, null
and void.

c. DECLARATION that Article 26(2) and Article 30(3) introduce into the Constitution
of the United Republic of Tanzania of 1977 as amended (hereinafter “the Constitution”)
two distinct fundamental rights and those rights that were intended by the framers of
the Constitution to be distinct and separate and not intertwined and therefore Section
4(3) is unconstitutional, null and void.

d. DECLARATION that constitutional violations have no alternative available remedies

other than those granted by the constitutional court and therefore the provisions of
Section 4(5) of BRADEA are unconstitutional, null and void.

e. DECLARATION that a section in an Act of Parliament that attempts to limit or

derogate the enjoyment of a fundamental right enshrined in the Constitution is out
rightly invalid and of no effect.

f. Any other relief(s) and/or order(s) the court may deem just and equitable to be granted.

That this Honorable Court be pleased to hear the Application and grant Prayers thereto:-

A: GROUNDS UPON WHICH REDRRESS IS SOUGHT

1. That the Parliament of the United Republic of Tanzania enacted the Written Laws
(Miscellaneous Amendment) No. 3 Act, 2020 which amends among other laws the Basic
Rights and Duties Enforcement Act Cap. 3 R.E 2019 by introducing sections 4(2), (3), (4)
and (5);

2. That the said new section 4(2), (3), (4) and (5) of BRADEA discriminates Tanzanians who
are public spirited persons from bringing constitutional challenges to protect basic rights
as provided under Part III of the United Republic of Tanzania Constitution of 1977 as
amended;

3. That the amendments introduced in Section 4(2), 4(3), 4(4) and 4(5) of the BRADEA, have
the following effect:
BRADEA Onesmo

a. They introduced a requirement of showing personal interest when filing a case under
Article 26(2) of the Constitution of the United Republic of Tanzania of 1977 as
amended, a requirement which was not contemplated by the framers of the Constitution
and would defeat the essence and/or purpose of human rights redress guaranteed under
the Constitution.

b. It has through the backdoor, attempted to amend the provisions of Article 26(2) of
the Constitution of the United Republic of Tanzania of 1977 as amended and
subjected it to Article 30(3) contrary to the intention of the framers of the
Constitution.

c. It has undermined the crucial constitutional role of the Judiciary of Tanzania as the
final interpreter of the Constitution through case law.

d. It has undermined the principles of separation of powers, rule of law and Good
Governance as enshrined in the Constitution of the United Republic of Tanzania.

e. It has undermined the principles of separation of powers, rule of law and Good
Governance as documented in the various International Treaties for which Tanzania
is a party to wit, the Treaty for the Establishment of the East Africa Community, the
African Charter on Human and Peoples’ Rights, and the International Covenant of
the Civil and Political Rights.

f. 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.

g. It has undermined the unique role and function of the Attorney General and
undermined the neutrality of the position of the Attorney General.

h. It has expanded the substantive constitutional role of the Attorney General beyond
what is provided for in the Constitution.

i. It 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 alternative remedies which are non-existence.

j. It has the effect of discriminating between Tanzanians especially disadvantaged

groups, as far as their right to protect the Constitution and to take legal action
individually, or in association with others, is concerned.
BRADEA Onesmo

k. It has the effect of undermining citizens’ right to enjoy fundamental human rights in
Tanzania and disregards the State’s constitutional role to respect, protect and fulfil
these rights in accordance with existing human rights treaties and domestic laws.

B: SPECIFIC SECTIONS IN PART III OF CHAPTER ONE OF THE CONSTITUTION

WHICH ARE BASIS OF THE PETITION

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

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

6. That section 4(4) of the Basic Rights and Duties Enforcement Act as amended in
inconsistent with the Constitution of the United Republic of Tanzania for violating Article
26(1) of the Constitution.

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

C: PARTICULARS OF FACTS
8. That on the 19th June 2020, the Written Laws (Miscellaneous Amendments) (No. 3) Act,
2020 was gazetted following its assent by the President of the United Republic of Tanzania
on 15th June 2020. I aver further that the said law has amended the Basic Rights and Duties
Enforcement Act (BRADEA) by:

a. Introducing a requirement that the petitioner should demonstrate the extent of personal
effect of the alleged infringement at the level of admission of the petition;

b. Introducing a requirement of suing the Attorney General on behalf of heads of other

organs of the State when it is alleged that these other organs have breached the
Constitution or any other law.

c. The amendments denies individual accountability for human rights violations, which
serves as a deterrent and would also breed impunity contrary to the rule of law.
BRADEA Onesmo

d. Introducing a requirement that the petitioner approaching the court has to comply with
the provisions of the Constitution that give individual locus standi including
demonstration of being personally affected by the alleged infringement and,

e. Introducing a requirement that the petitioner should exhaust all available remedies
under any other law before filing a constitutional petition.

9. That, the Constitution of Tanzania 1977 guarantees fundamental freedoms and basic
human rights enshrined therein, prohibits enactment of any provision of law which
discriminate on grounds of nationality, tribe, gender, disability, place of origin, political
ideology, color or religion; the prohibition which is in tandem with various international
human rights instruments to which Tanzania is a party.

10. That, the Constitution of Tanzania 1977, further guarantees to Tanzanians the right to
equality before the law, which is concomitant with various international human rights
instruments to which Tanzania is a party.

D: NATURE OF REDRESS THAT THIS HONOURABLE COURT MAY BE PLEASED

TO DECLARE:
a. That section 4(2) (3) (4) and (5) of the of the Basic Rights and Duties Enforcement
Act as amended is inconsistent with the Constitution of the United Republic of
Tanzania for violating Article 13 (2) and 13(4), 13 (6) (a), 26 (1) and 26 (2) of the
Constitution.

b. That section 4(3) of the of the Basic Rights and Duties Enforcement Act as amended
in inconsistent with the Constitution of the United Republic of Tanzania for
violating Article 26(2) and 30(3) of the Constitution.

c. That section 4(4) of the Basic Rights and Duties Enforcement Act as amended is
inconsistent with the Constitution of the United Republic of Tanzania for violating
Article 26(1) of the Constitution.

d. That Section 4(5) of the of the Basic Rights and Duties Enforcement Act as
amended is inconsistent with the Constitution of the United Republic of Tanzania
for violating Article 13(6)(a) and 26(1) of the Constitution.

e. That parties who intend to file a Constitutional Petition under Article 26(2) need
not show/demonstrate personal interest.
BRADEA Onesmo

f. That each party to bear its own costs because this suit is filed in public interest and
with a view to assist the court to advance its mandate of promoting human rights
jurisprudence within Tanzania.

g. GRANT any other orders/relief this honourable court may deem fit to grant.
THIS APPLICATION is brought at the instances of the Applicant supported by the Affidavit of
ONESMO OLENGURUMWA annexed herewith and on any grounds that may be advanced and
canvassed during the hearing of this Application.

Given under my Hand and Seal of the Court this _____, day of ___________, 2021

____________________
DEPUTY REGISTRER

Presented for filing this ________, day of __________________________, 2021

____________________
REGISTRY OFFICER

Drawn & Filed By:-

John Seka (Advocate),
Seka & Associate Advocates,
Room No. 5 First Floor, Kibo Commercial Complex II
Plot No. 483, Block E, Tegeta Kibo, Bagamoyo Rd,
Dar es Salaam- Tanzania
Tel: 0754505406/0655441290,
Email: [email protected]

To Be Served Upon:-
The Solicitor General,
Office of the Solicitor – General,
10 Kivukoni Road
P.O. Box 71554 DAR ES SALAAM
Tel: +255 22 211 1622/212 0 469
Fax: +255 22 211 1621
Email: [email protected]
BRADEA Onesmo

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM MAIN REGISTRY)
AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO: ............. OF 2021

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC

OF TANZANIA 1977 - AS AMENDED FROM TIME TO TIME [CAP. 2 R.E. 2002]
AND
IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT
[CAP. 3 R.E. 2019]
AND
IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY
OF THE PROVISIONS OF THE WRITTEN LAWS (MISCELLANEOUS
AMENDMENT) NO. 3 ACT, 2020 WHICH AMENDS PROVISION OF BASIC RIGHTS
AND DUTIES ENFORCEMENT ACT (CAP. 3 RE 2019)

BETWEEN

ONESMO OLENGURUMWA............................................................................. PETITIONER

AND

THE HON. ATTORNEY GENERAL

OF THE UNITED REPUBLIC OF TANZANIA ...................................... RESPONDENT

AFFIDAVIT

I, Onesmo Olengurumwa, adult, Christian and resident of Dar es Salaam - Tanzania, do solemnly
swear and state as follows:

1. That I am a lawyer by training and a seasoned human rights activist with experience in
championing and litigating human rights within and outside Tanzania and hence conversant
with the facts deposed herein.

2. That I have in the recent past petitioned before this court as a public interest litigant to
champion various human rights causes and the following are some of the cases that I have
petitioned:
BRADEA Onesmo

a) Onesmo Olengurumwa versus Minister of State in the President’s Office Regional

Administration and Local government, and Attorney General (Miscellaneous
Civil Cause No. 24 of 2019) and,

b) Onesmo Olengurumwa versus Attorney General (Miscellaneous Civil Cause No.

36 of 2019)

3. That on the 19th June 2020, the Written Laws (Miscellaneous Amendments) (No. 3) Act,
2020 was gazetted following its assent by the President of the United Republic of Tanzania
on 15th June 2020. I aver further that the said law has amended the Basic Rights and Duties
Enforcement Act (BRADEA) by:

a) Introducing a requirement that the petitioner should demonstrate the extent of

personal effect of the alleged infringement at the level of admission of the petition;

b) Introducing a requirement of suing the Attorney General on behalf of heads of other

organs of the state when it is alleged that these other organs have breached the
Constitution or any other law.

c) Introducing a requirement that the petitioner approaching the court has to comply
with the provisions of the Constitution that give individual locus standi including
demonstration of being personally affected by the alleged infringement and,

d) Introducing a requirement that the petitioner should exhaust all available remedies
under any other law before filing a constitutional petition.

4. That, being a trained lawyer, I made reference to the statement of Objects and Reasons
contained in the proposed Bill that was introduced in the Parliament as Bill Supplement
No. 1 dated 29.05.2020 and I gathered from the statement of objects and reasons the
intention of the government in introducing the amendments highlighted in paragraphs 3a,
3b, 3c and 3d above were aimed generally at empowering the High Court to reject non-
compliant petitions as well as preserving the immunity from prosecution bestowed upon
certain leaders of the government and insulating them from being prosecuted in their own
names. The statement of objects and reasons that I read is herewith attached as Annex
Onesmo – 01 and leave is craved that the same forms part of this affidavit.

5. That, being a seasoned human rights practitioner and a trained lawyer, I know that prior to
the enactment of the complained law the position in relation to locus standi and personal
interest in constitutional petition was that the issue of personal interest was not necessary
BRADEA Onesmo

in order to institute proceedings. I aver further that the requirement of exhaustion of all
available remedies was not necessary.

6. That, as a public interest litigant the introduction of the complained law will affect me
personally on account of the fact that they limit my future attempt to petition for human
rights and constitutional violations in accordance with art. 26(2)? until and unless I
demonstrate that I have personally been affected.

7. That having read the amendments introduced in the BRADEA, I was aggrieved on account
of the fact that I consider the role of the judiciary as the sole interpreter of the Constitution
is being undermined.

8. That I know that the Judiciary of Tanzania is one of the three arms of the Government of
Tanzania and it is the one, through the High Court and the Court of Appeal which has been
bestowed with the mandate of giving meaning to the Constitution and interpreting the
intention of the framers of the Constitution and have done so in many instances in respect
of public interest litigation.

9. That the 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 of the land, duty to
protect Constitution and the right to enjoy fundamental human rights on all individuals and
State organs.

10. That as the Petitioner I am challenging the constitutionality of the provisions of the
complained law only.

11. That as the Petitioner, I do not have an alternative remedy as regard to the constitutionality
of the complained law.

12. That it is only the High Court which has original jurisdiction to declare the provisions of
the complained law as unconstitutional.

VERIFICATION
I, ONESMO OLENGURUMWA, being the Petitioner herein and the deponent to this affidavit
do verify that what I have stated in paragraphs 1, 2a, 2b, 3a, 3b, 3c, 3d, 4, 5, 6, 7, 8, 9, 10, 11, and
12 is true according of my knowledge.
Verified at Dar es Salaam, this………….day of March 2021.

___________________
Deponent
BRADEA Onesmo

SWORN at Dar es Salaam by the said

Onesmo Olengurumwa who is identified _____________________
to me by John Seka, Esq. the latter being Deponent
known to me personally in my presence
this……… day of March 2021

Before Me:
Signature:…………………………………………..

Name: ……………………………………………..

Address:……………………………………………
Occupation: Advocate and Commissioner for Oaths

Presented for filling at Dar-es-salaam on _________________March 2021

_______________________
Registry Officer

Drawn & Filed By:-

John Seka (Advocate),
Seka & Associate Advocates,
Room No. 5 First Floor, Kibo Commercial Complex II
Plot No. 483, Block E, Tegeta Kibo, Bagamoyo Rd,
Dar es Salaam- Tanzania
Tel: 0754505406/0655441290,
Email: [email protected]

To Be Served Upon:-
The Solicitor General,
Office of the Solicitor – General,
10 Kivukoni Road
P.O. Box 71554 DAR ES SALAAM
Tel: +255 22 211 1622/212 0 469
Fax: +255 22 211 1621
Email: [email protected]
BRADEA Onesmo

IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM MAIN REGISTRY)
AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO: ............. OF 2021

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC

OF TANZANIA 1977 - AS AMENDED FROM TIME TO TIME [CAP. 2 R.E. 2002]
AND
IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT
[CAP. 3 R.E. 2019]
AND
IN THE MATTER OF A PETITION TO CHALLENGE THE CONSTITUTIONALITY
OF THE PROVISIONS OF THE WRITTEN LAWS (MISCELLANEOUS
AMENDMENT) NO. 3 ACT, 2020 WHICH AMENDS PROVISION OF BASIC RIGHTS
AND DUTIES ENFORCEMENT ACT (CAP. 3 RE 2019)

BETWEEN

ONESMO OLENGURUMWA............................................................................. PETITIONER

AND

THE HON. ATTORNEY GENERAL

OF THE UNITED REPUBLIC OF TANZANIA ...................................... RESPONDENT

AFFIDAVIT OF ADMISSIBILITY

I, Onesmo Olengurumwa, adult, Christian and resident of Dar es Salaam - Tanzania, do solemnly
swear and state as follows:

1. That I am a lawyer by training and a seasoned human rights activist with experience in
championing and litigating human rights within and outside Tanzania and hence conversant
with the facts deposed herein and I have personal interest in this matter.

2. That I have in the recent past petitioned before this Honourable court as a public interest
litigant to champion for various human rights causes and the following are some of the
cases that I have petitioned:
BRADEA Onesmo

a) Onesmo Olengurumwa versus Minister of State in the President’s Office Regional

Administration and Local government, and Attorney General (Miscellaneous
Civil Cause No. 24 of 2019) and,

b) Onesmo Olengurumwa versus Attorney General (Miscellaneous Civil Cause No.

36 of 2019)

3. That on 19.06.2020, the government gazetted, the Written Laws (Miscellaneous

Amendments) No. 3 Act of 2020 which amended several laws including the Basic Rights
and Duties Enforcement Act (BRADEA) Cap. 3 (RE 2019). The said law was gazetted
following presidential assent.

4. That following the amendment of the Basic Rights and Duties Enforcement Act, as a
petitioner who intends to petition this court for redress has to demonstrate the extent to
which the contravention of the provisions of the Bill of Rights has affected such person
personally.

5. That I make this affidavit in support of admissibility of my petition pursuant to provisions

of the Basic Rights and Duties Enforcement Act as amended.

6. That I aver that with the introduction of amendments relating to admissibility of the
petition, I am personally affected in the following way:

a) I cannot as I used to do, pursue a public interest litigation without showing personal
interest and this limits and poses undue restriction on the principles of fair hearing,
in particular, access to justice to indigent aggrieved with any violation of the
Constitution and the enacted laws,

b) I cannot protect the Constitutional rights and other laws in the manner prescribed
by the Constitution of the United Republic of Tanzania of 1977 as amended and,

c) I have the duty under the Constitution of the United Republic of Tanzania of 1977
to respect the Constitution and the laws lawfully enacted including the complained
law.

7. That being a seasoned public interest litigant, I am aggrieved with the restrictions
introduced by the amendments, which requires a public interest litigant to demonstrate
personal interest.
BRADEA Onesmo

8. That in my petition, I have averred that the said restriction is contrary to the intention of
the framers of the Constitution to enact Article 26(2).

9. That since I regularly petition this court as a public interest litigant without having personal
interest in the outcome of the petition, the newly introduced restrictions will affect me
personally as demonstrated above, to operate in my capacity as a human rights defender in
association with others.

Dated and Signed at Dar-es-salaam on_____ March 2021

________________________________
Onesmo Olengurumwa

VERIFICATION
I, Onesmo Olengurumwa, being the Petitioner herein and the deponent to this affidavit do verify
that what I have stated in paragraphs 1, 2a, 2b, 3, 4, 5, 6a, 6b, 6c, 7, 8 and 9 is true to the best of
my own knowledge.

Verified and Signed at Dar es Salaam, this…………. day of March 2021

_____________________
Deponent

SWORN at Dar es Salaam by the said

Onesmo Olengurumwa who is identified _____________________
to me by John Seka, Esq. the latter being Deponent
known to me personally in my presence
this………… day of March 2021

Before Me:
Signature:………………………………………….

Name: ……………………………………………..

Address:……………………………………………
Occupation: Advocate and Commissioner for Oaths
BRADEA Onesmo

Presented for filling at Dar-es-salaam on ____________ day of _____________________ 2021

_______________________

Registry Officer

Drawn & Filed By:-

John Seka (Advocate),
Seka & Associate Advocates,
Room No. 5 First Floor, Kibo Commercial Complex II
Plot No. 483, Block E, Tegeta Kibo, Bagamoyo Rd,
Dar es Salaam- Tanzania
Tel: 0754505406/0655441290,
Email: [email protected]

To Be Served Upon:-
The Solicitor General,
Office of the Solicitor – General,
10 Kivukoni Road
P.O. Box 71554 DAR ES SALAAM
Tel: +255 22 211 1622/212 0 469
Fax: +255 22 211 1621
Email: [email protected]