By Evarist Baimu Nyaga Mawalla - Home

13.(1) all person are equal before the law and are entitled without anydiscrimination, to equal opportunity before and protection of the law;(2) Subject to this constitution no legislative authority in the United Republic shallmake any provision in any law that is discriminatory either of itself or itself or in itseffect.On a similar reasoning we reject Mrs. Sumari’s submission that because theGovernment is responsible for the wider interests of the society then it shouldbe place on an equal footing with an ordinary person . We can find no justificationfor the distinction. We think that the equality before the law envisaged in Article13 (1) above embraces not only ordinary person but also the Government and itsofficials; all these should be subjected to the same legal rules.While advancing the argument of a compelling need for limitation Mrs. Sumareagain claimed that the requirement of consent was necessary in order to giveGovernment the opportunity during which to study the proposed claims andwhere arranged, to consider settlement our of Court. This, she said, spared theGovernment of the embarrassment of appearing in court and saves its valuabletime to sever the wider public. We could find no substance in this argument. TheGovernment can achieve all this within the normal procedure of bringing civilsuits. Ordinarily before a person decides to sue the Government. There must besome prior communication between the Peron intending to sue the Governmentand the Government in which the fermer will have indicated sufficiently thenature and grounds of his claim. Thus if the Government so wishes, it can assessthe claim and where warranted consider settlement out of court during such presuitcommunication. The requirement of consent to sue is really not necessary forthe for the purpose of affording he Government time to assess the claim andconsider settlement out of court. On the other hand we agree with the learnedjudge in Ng’omango’s case above that such restriction militates against theprinciples of the good governance which call for accountability and openness ortransparence on the part of Government.Therefore, unlike the learned judge from whom this appeal arises, we find thatSection 6 of the Government proceedings Act 1967 as amended by Section 6 ofGovernments proceeding (Amendment) Act, 1974 is unconstitutional for thereasons we have amply demonstrated above. the Republic has totally failed toshow that the said Section is saved by the provisions of the Constitution whichallow for derogation from basic human rights. In the circumstances we have noalternative but to hold, in terms of Article 64 (5) of the constitution of the UnitedRepublic of Tanzania that Section 6 for the Government proceedings Act, 1967as amended by Government proceedings (Amendment) Act, 1974 id void. It isaccordingly struck down for being unconstitutional292