Tanzania: Court Refuses to Dismiss Constitutional Petition

By Faustine Kapama

A WRANGLE on laws pinning down nongovernmental organisations (NGOs) has taken a new twist after the High Court refused to dismiss a constitutional petition lodged by

two associations propagating democracy and activism, opposing some provisions.

Judge Steven Magoiga dismissed all four grounds of objections presented by three defendants, the Attorney General, the Registrar of Companies and the Registrar of NGOs, challenging the hearing of the petition by Centre for Strategies Litigation Limited and Change Tanzania Limited, the petitioners.

Following such a decision, the High Court will proceed with the hearing and determine the petition on merits. In the case, the two petitioners are challenging the constitutionality of some provisions under the Companies Act, the Non- Governmental Organisation Act and the Societies Act.

They are requesting the court to declare unconstitutional some of the sections of the Acts, as emended by Act No 3, 2019, for allegedly contravening Articles 13(1) (2)(6)(a) (b), 20(1) and 29(1) and (2) of the Constitution of the United Republic of Tanzania, 1977 as amended until 2005.

On the objection grounds, the respondents asked the court to dismiss the petition as was untenable for being res-subjudice, the petitioners lacked the locus standi and had not exhausted available remedies.

They also challenged the affidavit in support of the petition being incurably defective.

Counsel for the respondents forcefully submitted that the petitioners had not lacked the locus standi to file the petition while their registration had been deregistered by operation of law as their legal personalities were extinguished since August 30, 2019.

In his ruling, however, the judge noted that the petition was lodged on August 22, 2019 before the coming into force of the deregistration law.

This means that at the time of filing the case the petitioners had legal legs to stand. The court found, therefore, that the petitioners had the locus standi to file the petition.

On the question of exhausted available means, the judge ruled that the law involved in the petition did not provide remedies within which the petitioners could have exhausted first before knocking court doors because the contravention alleged was unconstitutionality of the Act No 3, 2019.

"Therefore, going by the facts and prayers contained in the originating summons is clear the remedies are not covered and are not available remedies on other law and the argument by the state attorney that the said section provide the remedy are far from convincing this court," he said.

As regards to the defectiveness of the affidavit in support of the petition for containing a defective verification clause, the judge found no legal point to fault the same, as the deponents had counter signed the verification by showing all paragraphs were true to the best of their knowledge.

"In my opinion, this is more than enough. Had the counsel for the respondents raised the issue of paragraphs containing untrue facts it would have a different approach. That said and done thus point is akin to fail and it is hereby overruled as well," Judge Magoiga ruled.

As to the un-tenability of the petition for being res subjudice on sense that there is a pending commercial case between Change Tanzania Limited and Registrar of Companies and a reference between the Legal Human Right Centre and Tanganyika Law Society pending in the East Africa Court of Justice.

It was alleged that the remedies sought were similar to those sought before the Court. Nevertheless, in his ruling, the judge referred to previous court decisions pointing out principles that could be applied to justify a particular case is ressubjudice.

Such principals include availability of two pending suits, one previously filed having same parties suing under the same title, the matter in issue must be directly and substantially be the same in the two suits and that the suit must be pending in court of competent jurisdiction.

He noted, however, that the factor that the suit must be directly and substantially was missing in the petition because the prayer in the commercial case was for the declaratory order for the petitioner to alter provisions in the Memarts, while the petition was in respect of the constitutionality of laws.

"Without much ado, therefore, the prayers are different and the resultant effect is different. The phrase the issue is also directly and substantially in issue in previous instituted suit must have the same prayers and effect. Once (they) are different it ceases to be directly and substantially the same," he said.

The Centre for Strategic Litigation is a Tanzania-based partnership that seeks to advance the vision of a just, tolerant, vibrant and inclusive democracy grounded on respect for rule of law and justice for all.

It deploys an innovative approach to litigation and advocacy that seeks to promote access to justice and public debate and education on key democratic principles and values. The Change Tanzania is a mix of small community volunteerism up to national activism.

It is a non-partisan and social media movement that started on social media as an informal grouping of individuals focused on bringing about positive, sustainable change to Tanzania.

This movement aims at increasing or creating people's awareness on their rights and responsibilities to push for development and equal opportunities in Tanzania.