By Evarist Baimu Nyaga Mawalla - Home

That is a sufficient and reasonable restriction against suint the government. Thatlegislation in Zanzibar is in line with the doctrine of proportionality as it does notlimit the right of access to the courts more than is necessary or proportionate toachieve a legitimate objective. The law in Tanzania Mainland id based on theunjustifiable protectionist attitude or fear that the government may be involved inuncontrolled litigation. Thus ending in serious losses of revenue But thatargument cannot hold water when one considers the high capability of thegovernment to distribute the losses suffered through some fiscal measures, suchas taxation.The courts of course will always recognize that the State enjoys a “margin ofappreciation” in conforming their law and practice with the basic human rights.But the government does not enjoy an unlimited margin of appreciation.Ultimately it is for the Court to assess whether the reasons given to justify aninterference with the basic human right are relevant and sufficient. In the case inhand the government has failed to establish on a balance of probabilities that therequirement of a ministerial fiat is for a given pressing social need and that therestriction is framed such that as not to limit the right protected more than isnecessary. In short the government has failed to prove that the restrictions on theright to have free access to the courts is proportionate and closely tailored to theaim sought to be achieved.There is also another dimension. In view of the fact that Tanzanians of Zanzibarcan sue the Union government without a ministerial fiat, while their counterpartsin Mainland Tanzania cannot do that, a case is made out to the effect that thegovernment proceedings Act, 1967 infringes Article 13 (1) of our Constitution.That Article provides:All persons are equal before the law and are entitled without any discrimination,to equal opportunity before and protection of the law.Now the impugned law is discriminatory of the citizens of Mainland Tanzanite justbecause of their “place of origin” see Article 12 (5) of our Constitution whichdefines what discrimination means As the law now stands that the Tanzanians ofZanzibar are more equal than the Tanzanians of the mainland. That is not ahealthy situation.The practice of the requirement of a ministerial fiat before one can sue thegovernment, defeats the general spirit underlying the government proceedingsBill of 1967. The statement of the objects and reasons of the Governmentproceeding Bill of 1967 was said to be “That in a modern democratic State, it isright that the government should be able to sue or be sued as if it were a privateperson of full capacity. “And that the Bill sought to reform the law relating o civilproceedings in courts by or against the government, as the law hitherto in278