By Evarist Baimu Nyaga Mawalla - Home

denied the right files suit, but also when restriction are imposed such that. theright to file a suit is rendered illusory or is cumbersome. 37That is not all, as we have also comparative jurisprudence. Nor them Ireland hadhe Ministers and Secretaries Act of 1924 which was in pari material with ourGovernment proceedings Act, 1967 as it required the consent of the Attorney-General before the government was sued. Te supreme Court of Northern Irelandin the case of Masauley v. minister for posts and Telegraphs 38 held that theprovision reusing the consent of the Attorney-General was unconstitutional andso void as I was in Brach of the citizen’s right to have access to the courts for aremedy. Neared home we have the case from Uganda, the case of shah v.Attorney-General (No. 2) 39 The matter there concerned the provision of Section2 (1) of the Local Administration (Amendment) Act, 1969 No. 2 of 1969 ofUganda) which imposed the requirement of a ministerial fiat before one could suethe government. Justices Jones, Mead and Wambuzi unanimously held that theprovision in question was unconstitutional and void in that it purported to deprivean aggrieved party of the protection of the law given by the Ugandan Constitutionin Article 8 (2) (a) which is the equivalent of our Article 13 (1) and (3) of ourconstitution. Moreover a very powerful Commission known as the NyalaliCommission I Book Three of its recommendations holds the view, that therequirement of a ministerial fiat is unconstitutional because it deprives anindividual the right of a free access to the court, and accordingly it recommended40for its abolitionIn the light of the reasons enumerated above, I am unable to agree with Counselfor the Republic Mr. Nsunguru that the requirement of a ministerial fiat does notinfringe the constitutional right of free access to the courts for a remedy. The rightis infringed in a big way.Granted that the requirement of a ministerial fiat infringes the Constitution, it issaved by the derogation clause or claw-back clause in Article 30 (1) and (2) ofour Constitution for being in public interest. The Tanzania Court of Appeal in thecaw of D,P.P v. Daudi Pete 41 held that a statute which infringed the basichuman rights is not void if the Republic proves that is it in public interest. TheTanzania Court of Appeal made two guide-lines as36 (1985) 2 Selected Decisions of the Human Rights Committee 15137 See p. 45 of the Report of the proceeding of the judicial Colloquium in Harare,Zimbabwe 19-22April, 1989 published by the commonwealth Secretariat in November, 198938 (1966) :I.R. 345.39 (1970) E.A 523 (Uganda)40 See GOVERNMENT OF THE UNTED REPUBLIC OF TANZANIA TheReport and Recommendations of the Residential Commission on Single party ormultiparty system in Tanzania272