By Evarist Baimu Nyaga Mawalla - Home

“That it is the exclusive right of the Attorney – General to represent thepublic interest, even where individuals might be interested in a larger viewof the matter, is not technical, not procedural, not fictional. It isconstitutional. I agree with Lord Westbury LC that it is also wise”Do the provisions of s.26 (2) of the Constitution entitle the respondent to bring the actionnow before this Court? I think not. In the first place, in his plaint the respondent has notcomplained of unconstitutionality or illegality. Although he is a lawyer by profession, hehas not cited any provision of the Constitution or any other law, which has been violatedby the applicants. This omission is, in my view, a matter of no surprise. The respondentcould not have made such citations because under the Constitution and law then in forceno unconstitutionality or illegality cold arise in the applicants receiving from theGovernment the moneys they are said to have received on behalf of CCM, or in theGovernment making those disbursements. I will be forgiven, I hope, for stating theobvious, namely, the constitutionality or legality of yesterday’s actions cannot be testedby today’s constitution or law.Secondly, it is my considered view that those provisions were not intended to, and do not,abolish the application in Tanzania of the common law principle that a private personcannot assert rights belonging to the public. In my judgment, they merely reduce thescope of the rule. As for as public nuisance and public charity are concerned, two or moreprivate persons may, under s.66 and 67 of the Code respectively, bring a relator action.But to do so, those person must obtain the consent of the Attorney – General; seeTricumdass Mulji and An. V. Khimji Vullabhdass and others (1892) 16 Bom. 626 andLutifunnissa Bibi and Others v. Nazirun Bibi (1885) 11 Cal 33. The provisions of thosetwo sections re mandatory; suits to which the sections apply can only be instituted inaccordance with their provisions. It cannot be denied that the instant suit has not beeninstituted in compliance with the provisions of s.67. It may well be – and I stress that Isay no more than that – that the trustees of a political party can, in law, seek from thiscourt.Some of the relies the respondent has purported to pray for in the instant case.Lastly, I must deal with Mr. Uzanda submission concerning subventions, whichwere being made to the applicants. I am not disposed to think that all the issues raised bythe respondent in his, plant are not justifiable. Some of those issues can, in my opinion,be properly examined in courts of law provided they are raised by a party having locusstandi. Whether CCM is a properly registered political party, for example, is plainly aquestion of law, whose answer must lie in the constitution and the Political Parties Act.Nevertheless, I agree with the learned advocate’s submission that the remedy, if any, forany wrong allegedly committed in relation to subventions received by the applicants doesnot lie in the judicial field. In general, the management of public funds, like themanagement of the economy and foreign policy of the country, is the prerogative of theexecutive; it is not amendable to judicial process. In the exercise of its power in that fieldthe executive is accountable to Parliament. It would be straining to the atmost the power190