1 In this article, unless otherwise stated, the term Tanzania excludes Zanzibar. “Tanzania” is intended here to be restricted to Tanzania Mainland (the former Tanganyika), because of the peculiarities of Zanzibar's political and constitutional history.

2 Martin, RBPersonal Freedom and the Law in Tanzania (1974, Oxford University Press) at 5.Google Scholar

3 As to Nyerere's fears, refer to his statement in an interview that, as president, he had the powers of a dictator; see Hopkins, RFPolitical Roles in a New State: Tanzania's First Decade (1971, Yale University Press) at 26.Google Scholar

4 Mwaikusa, JT “The genesis of the Bill of Rights in Tanzania” (1991) 3:4 Journal of the African Society of International and Comparative Law 680 at 692Google Scholar; Peter, CMHuman Rights in Africa: A Comparative Study of the African Human and Peoples’ Rights Charter and the New Tanzanian Bill of Rights (1990, Greenwood Press) at 5–6Google Scholar; Peter, CMHuman Rights in Tanzania: Selected Cases and Materials (1997, Rudiger Koppe Verlag)Google Scholar; Peter, CM and Juma, IH (eds) Fundamental Rights and Freedoms in Tanzania (1998, Mkuki na Nyota Publishers)Google Scholar; Shivji, IG “Contradictory developments in the teaching and practice of human rights in Tanzania” (1991) 35 Journal of African Law Journal of African Law 116–27Google Scholar; MKB Wambali “Democracy and human rights in Tanzania: The Bill of Rights in the context of constitutional developments and the history of institutions of governance” (PhD thesis, University of Warwick, England, 1998).

5 Wagao, J “The changing face of Tanzania politics and its economic implications” in Fimbo, GM and Mvungi, SEAConstitutional Reforms for Democratisation in Tanzania (1993, Faculty of Law and Friederich-Nauman Stiftung, University of Dar Es Salaam) 46 at 48.Google Scholar

6 Shivji, IGA Legal Quagmire: Tanzania's Regulation of Land Tenure (Establishment of Villages) Act 1992 (1994, International Institute for Environment and Development) at 88.Google Scholar

7 The bill for the Fifth Constitutional Amendment Act 1984 was passed by a 100% majority of the members present (only one was absent) in the National Assembly, of whom 124 were from the Tanzania Mainland and 62 from Zanzibar. See Hansard, Majadiliano ya Bunge – Taarifa Rasmi 25–30 October 1984 (1984, Government Printer) at 512.Google Scholar

8 Postponing the justiciability of it for three years. See sec 5(2) of the Constitution (Consequential, Transitional and Temporary Provisions) Act 1984 (act no 16 of 1984).

9 It was part of US President Jimmy Carter's foreign policy for developing countries that American aid to the latter should be tied to some good human rights record. The policy is still operative to date.

10 High Court miscellaneous criminal cause no 2 of 1988, Mwanza registry (unreported) (Chumchua Marwa).

11 Id at 4, relying on the interpretation by an Indian court of a similar provision of the Indian constitution and the situation in People's Union of Democratic Rights v Ministry of Home Affairs (1986) LRC (const) 546–75.

12 Daudi s/o Pete v The United Republic of Tanzania, criminal cause no 80 of 1989, Mwanza registry (unreported) (Daudi Pete).

13 [1991] LRC (const) 553 at 561 (Pete).

14 Act no 33 of 1994.

15 Tanzania re-introduced the multi-party political system in 1992 after several decades of single party rule.

16 High Court civil case no 168 of 1993, Dar Es Salaam registry (unreported) (Marando).

17 [1995] TLR 31 (Mtikila).

18 In particular the now retired Justice James Mwalusanya, who was the pioneer and creative judge as a number of his judgments on human rights bear witness. According to reliable information (preferring anonymity) from the headquarters of the Chama Cha Mapinduzi (CCM – Tanzania's ruling political party), the early judgments of this judge in the Chumchua Marwa and Daudi Pete cases had prompted the anger of the CCM's National Executive Committee in one of its regular meetings. It was about to be decreed for the Bill of Rights to be removed from the constitution, but for the intervention of the former president and its chairman Julius K Nyerere. Also see Shivji, IG “The changing state: From an extra-legal to an intra-legal state in Tanzania” in Mtaki, CK and Okema, M (eds) Constitutional Reform and Democratic Governance in Tanzania (1994, Friederich Nauman Foundation and Faculty of Law, University of Dar Es Salaam) 79 at 89.Google Scholar

19 Pete, above at note 13, at 562.

20 This was yet another government reaction against the previously successful pressure from members of the media which forced the government in 1994 to withdraw the Media Council Bill from the National Assembly, for none other than a threat of the media to institute proceedings in the High Court for an injunction restraining the bill from passing into law, for comprising provisions which were likely to contravene the right to freedom of expression under the Bill of Rights.

21 Sec 17(g) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (Amendment) Act 1968 (act no 5 of 1968) only introduced orders of mandamus, prohibition and certiorari in substitution for the prerogative writs.

22 In Tanzania there is a tendency among lawyers to muddle public with private law remedies. See Financial Institutions and Legal Management Upgrading Project Legal Sector Study: Administration of Justice (1994, Ministry of Justice and Constitutional Affairs, Government Printer) at 7–12; Mwakibete v The Principal Secretary (Establishments) and the Attorney General Court of Appeal civil appeal no 27 of 1992 (unreported); Mazutsi v The Registrar of Co-operatives High Court misc civil application no 90 of 1992; and Gordhan v The Director of Immigration High Court misc application no 3 of 1991. On public remedies generally, see MacEldowney, JFPublic Law (1994, Sweet and Maxwell)Google Scholar and Jain, MP and Jain, SNPrinciples of Administrative Law (2nd ed, 1999, Wadhwa and Company Law Publishers)Google Scholar.

23 Act no 16 of 1967.

24 Sec 11(1). MKB Wambali “Tort liability of the government in Tanzania: The impact of the Government Proceedings Act 1967 on the rights of individual claimants” (LLM dissertation, University of Dar Es Salaam, 1985).

25 Immediately after the fourth phase government's President Jakaya Mrisho Kikwete took office in December 2005, he appointed 20 new High Court judges in an unprecedented move, which pushed the total number from about 30 to about 50. In June 2008 he appointed 11 more judges of the High Court, making the total number about 60.

26 Wambali “Democracy and human rights in Tanzania”, above at note 4.

27 He subsequently became, immediately after its establishment, the chairperson of the Commission on Human Rights and Good Governance established by art 129(1) of the Constitution of the United Republic of Tanzania. See the Kisanga Committee Report, 1999. He has now retired from public service.

28 By virtue of government circular no 1 of 1998, commonly referred to as the “White Paper.”

29 Act no 1 of 2005.

30 Misc civil cause no 10 of 2005, Dar Es Salaam High Court main registry (unreported).

31 Mtikila, above at note 17.

32 Id at 68.

33 Act no 34 of 1994.

34 Mtikila, above at note 30 at 47.

35 Tanganyika Law Society “The statement of the Tanganyika Law Society on the eleventh constitutional amendment” (20 January 1995) MZALENDO Sunday Newspaper at 8.

36 Ibid.

37 Ibid.

38 See preamble to the Constitution of the United Republic of Tanzania 1977.

39 Paras 9(1)(a) and (b) respectively.

40 State of Rajasthan v Union of India 3 SCC 592–661; AIR 1977 SC 1361–413 (emphasis added).

41 RW Tenga “Revisiting judicial activism: The Mkomazi pastoralists’ case in the Court of Appeal” (2000, mimeo, Faculty of Law, University of Dar Es Salaam).

42 Id at 1.

43 CM Peter “Judicial activism in Tanzania” (paper presented at the judges’ workshop at the Faculty of Law, University of Dar Es Salaam, 21 September – 2 October 1998) at 29 (emphasis original).

44 Id at 4.

45 Baxi, U “On the shame of not being an activist: Thoughts on judicial activism” in Tiruchelvam, N and Coomaraswamy, R (eds) The Role of the Judiciary in Plural Societies (1987, Frances Printers (Publishers) Ltd) 168 at 172.Google Scholar

46 Koopmans, T “The roots of judicial activism” in Matscher, F and Petzold, H (eds) Protecting Human Rights: The European Dimension - Studies in Honour of Gerald J Wiarda (1990, Carl Heymanns Verlag KG) 317 at 318Google Scholar.

47 See for example the case of Lochner v New York 198 US S 45 (1905), where the Supreme Court invalidated legislation of the State of New York regulating the working hours of bakers for having violated the liberty of contract; as was cited by Peter “Judicial activism in Tanzania”, above at note 43 at 5. See also MD Kirby “Judicial activism” (1997) 23, 3 and 4 Commonwealth Law Bulletin 1224 at 1226; and Theodore, J and Ginsberg, BAmerican Government: Freedom and Power (1990, WW Norton and Company) at 375Google Scholar.

48 (1832) 6 Peters (US) 556–62.

49 Leading to the infamous presidential statement that, “Well, John Marshall has made his decision, now let him enforce it.” See among others, Cole, DBThe Presidency of Andrew Jackson (1993, University Press of Kansas) at 114Google Scholar.

50 See for example Brown v Board of Education 347 US 483 (1954).

51 Peter “Judicial activism in Tanzania”, above at note 43 at 5, cites Soli Sorabjee as quoted in Kirby “Judicial activism”, above at note 47 at 1228.

52 Satwant Singh Sawhney v D Ramarathnan APO New Delhi AIR 1967 SC 1836.

53 Govind v State of MP AIR 1975 SC 1378.

54 MH Hoaskot v State of Maharashtra AIR 1978 SC 1548.

55 Attorney General of India v Lachma Dev AIR 1986 SC 467.

56 U Baxi “On the shame of not being an activist”, above at note 45 at 174.

57 Peter “Judicial activism in Tanzania”, above at note 43 at 6, citing People's Union for Democratic Rights and Another v Minister of Home Affairs AIR 1985 Delhi 268 and LRC (const) 546.

58 Chumchua Marwa, above at note 10 at 11.

59 Id at 12, citing Martin Personal Freedom and the Law in Tanzania, above at note 2 at 135 and Henkin, “Is there a political question doctrine?” (1976) 85 Yale Law Journal 597CrossRefGoogle Scholar.

60 Daudi Pete, above at note 12 at 12. Relying on the retired judge of the Supreme Court of the USA, Douglas, WOThe Court Years 1939–1975: The Autobiography of William O Douglas (1981, Vintage Book)Google Scholar at 55–56 and Mr Justice Wilson of the Supreme Court of Canada in the case of Operation Dismantle lc The Queen (1986) LRC (const) 421 and 440.

61 Daudi Pete, id at 13.

62 DPP v Pete [1991] LRC (const) 553 at 572.

63 (1996) TLR 130 and (1996) TLR 229 (Mhozya).

64 Id at 9 (emphasis added).

65 Mtikila, above at note 17 at 3–5 (ruling on the preliminary objections).

66 Peter “Judicial activism in Tanzania”, above at note 43 at 8–12.

67 Ibid. Peter cites the cases of Ukandi s/o Nanale v R (1991) (unreported), Leons Ngalai v Basil Mramba and the Attorney General (1985 (unreported) and National Agricultural and Food Corporation v Mulbadaw Village Council and Others [1985] TLR 88 (CA), as decisions of the Court of Appeal where technicalities were used to avoid going into substantive matters.

68 Speech of the late Hon Mr Justice Francis Nyalali, former chief justice of Tanzania, on the occasion of the admission of new advocates on 15 December 1994, mimeo.

69 Ibid.

70 Ibid.

71 Court of Appeal civil appeal no 64 of 2001, Dar Es Salaam main registry (unreported) at 17–18.

72 Bell, J “The judge as bureaucrat” in Eekelaar, J and Bell, J (eds) Oxford Essays in Jurisprudence (1987, Clarendon Press) 33 at 53 (emphasis added)Google Scholar.

73 Ibid.

74 Ibid.

75 Ibid (emphasis added).

76 Quotation borrowed from the Chumchua Marwa case, above at note 10 at 9.

77 SA Bahroon “The judiciary and the protection of human rights in Tanzania: A critical examination of the legislation and judicial decisions on the right to liberty” (LLM dissertation, mimeo, Faculty of Law, University of Dar Es Salaam, 1993) at 114–15.

78 For the full account of this development, see id at 115–71. For lack of space, this article excludes a detailed discussion of the cases.

79 [1992] LRC (const) 495.

80 Id at 498 (emphasis added).

81 See the recent High Court judgment in the case of Christopher Mtikila v The Attorney General miscellaneous civil cause no 10 of 2005, Dar Es Salaam main registry (unreported). In this case the full bench of the court (Manento JK, Massati and Mihayo JJ) took the opportunity openly to launch a vicious attack on parliament's powers to make and amend laws, while emphasizing that such powers are not limitless.

82 Indeed, this is the object of the publication of the Commonwealth Law Reports.

83 Dias, CJ and Paul, JCN “Lawyers, legal resources and alternative approaches to development” in Dias, CJ, Luckham, R, Lynch, DO and Paul, JCN (eds) Lawyers in the Third World: Comparative and Development Perspectives (1981, Scandinavian Institute of African Studies, Uppsala International Center of Law and Development) 363 at 368Google Scholar.

84 Y Ghai “Law and lawyers in Kenya and Tanzania: Some political economy considerations” in Dias et al (eds) id, 145 at 148.

85 Ibid.

86 Id at 156.

87 Dias and Paul “Lawyers, legal resources”, above at note 83 at 390.

88 Ibid.