By Evarist Baimu Nyaga Mawalla - Home

In the final analysis, I find that Section 6 of the Government proceedings Act,1967 as amended by Government proceedings (Amendment) Act, 1974 isunconstitutional and so void. I so declare under Section 5 (1) of Constitution(Consequential, Transitional and Temporary Provisions) Act, 1984 as well asArticle 64 (5)of the Constitution. For sure by this step, the C.C.M government willrejoice because in the 1990 Election Manifesto, the said C.C.M governmentpledged to get rid of all the problems that plague the people (kuwaondoleawananchi mambo yote yanayowakera). The requirement of a ministerial fiat tosue the government was one to those matters that has been plaguing he people.Now this tool of oppression which the TANU government in 1967 said wasundemocratic and outdated is gone forever, and it is now part of the legal folkloredestined for the dustbin. The Judiciary as an organ of the government hasplayed its noble part to get rid of a matter that has been plaguing the people forfar too long. It is pertinent to remark here that the government in the past and inthis case had insisted to be joined as a co-defendant not as a philanthropistwishing to bail out their distressed civil servant but for their own ulterior60 Volume 16 No. 3 Commonwealth Law Bulletin. July, 1990 pp. 855-859 at p.85661 See the debates in parliament during the passing of the 9 th ConstitutionalAmendment Act of 1992Right of Access to justiceMotives. They have been using the requirement of a ministerial fiat not as ashield to protect their own legitimate interest but as a sword to frustrate genuineclaims. In this case I told the State Attorney that the government’s interests willbe properly safeguarded if they merely provided legal representation to thedefendant but they refuse, ad instead to e joined as co-defendants. In the casesof Rev. Christopher. Mtikila v. The Editor, Business Times and Another 62 thegovernment tried to use that ploy of using the law as a sword to frustrate theplaintiffs claims, but it was nipped in the bud by Samatta, J.K who held that thegovernment need not be joined as a co-defendant. In this respect Dr. ChrisMaina Peter in his article in African journal of international and Comparative Law63graphically illustrates the point raised thusPractice indicates that even where a person in an attempt to avoid thisrequirement of getting government approval, decides to sue the governmentofficer alone without joining the government insist on being joined as arespondent. Worse still, once the government, if joined, then it invokes therequirements of the Government proceedings at its own request. This is281