By Evarist Baimu Nyaga Mawalla - Home

Constitutionalism in Africa: A New Democratic Perspective in the InternationalJournal o the Sociology of law 50And as I said earlier there are no safeguards and effective control against anygross abuses that they may be committed by the Minister fro Justice. The StateAttorney Mr. Nduguru must have been kidding when he submitted that the law inquestion is in public interest. To the contrary it is the public who are beingoppressed. Mr. Ndungure should respect the maxom “no research no right tospeak It is my finding that as the Government proceedings49 See PETER, Chris Maina , Five years of Bill of Rights in Tanzania Drawing Abalance sheet” Volume 4 part I African journal of International and comparativelaw, 1992 p. 13150 Volume 18 international journal of the Sociology of law, 1990, p. 381 at 401Act, 1967 has no safeguards and effective control against gross abuses as amplydocumented above, it is not a lawful law. It is void and unconstitutionalIt is also my considered view that the government Proceedings Act, 1967 offendsthe doctrine of proportionality. This principle of proportionality requires that themeans employd by the government to implement matters in public interestshould be no more than is reasonably necessary to achieve the legitimate aims.In other words the government must show that the restriction imposed on abasic human right is required by a compelling social need and that it is soframed as not to limit the right in question more that is necessary orproportionate to achieve a legitimate objective. The Court of Appeal of CookIslands in the case of Clarke v discusses the doctrine. karika 51 and by theSupreme Court of Canada in the case of the Queen v. Big M Drug Mart ltd(Others intervening) 52 And Mr. Anthony Lester Q.C. in his article mentionedabove quotes a number of cases decided by the Supreme courts of manycommonwealth countries which consider the principle of proportionality to ve aswell established to be part of the public law or administrative law. In the U.S.Athe U.S Supreme recognized the principle of proportionality by the U.S SupremeCourt in case of procurer v. Martinez 53 While the European Court of HumanRights has invoked that doctrine in outlawing laws going against basic humanrights in the Sunday Times Case 54And the Sliver Case (supra). In England the doctrine of proportionality isconcussed in Halsbury’s laws of England 55 and see also the case of Johnstonv. Chief Constable of the Royal Ulster Constabulary. 56 In Tanzania the doctrineof proportionality was expounded by the Tanzania court of Appeal in the D.P.Pv. Daudi Pete case wherein it is stated that the law being defended for being in276