By Evarist Baimu Nyaga Mawalla - Home

those listed villages were declared extinct before the provisions of theconstitution, which embody the Basic Human Rights because enforceable in 1988by virtue of the provisions of section 5 (2) of the constitution of the constitution(Consequential, Transitional and Temporary Provisions) Act, 1984. this meansthat since the provisions of Basic Human Rights are not retrospective, when theAct No. 22 of 1992 was enacted by the Parliament, there were no customaryrights in land in any of the listed villages of Arusha Region. This applies also toother areas, such as Rufiji District where, as we have shown, customary rights inland were extinguished by law in the early 1970s. bearing in mind that Act No. 22of 1992, which can correctly be described as a draconian legislation, wasprompted by a situation in some villages in Arusha Region, it is puzzling that adecision to make a new law was made where no new law was needed. A littleresearch by the Attorney-General’s Chambers would have laid bare the villagesconcerned had been extinguished a year before the Bill of Rights came into force.With due respect to those concerned, we feel that this was unnecessary paniccharacteristic of people used to living in our past rather than in our presencewhich is governed by a constitution embodying a Bill of Rights. Such behaviordoes not augur well for good governance.With regards to section 5 (1) and (2) which prohibits access to the courts ortribunal, terminates proceedings pending in courts or tribunal and prohibitenforcement of decisions of any court or tribunal concerning land disputes fallingwithin Act. 22 of 1992, we are satisfied, like the learned trial judge that the entiresection is unconstitutional and therefore null and void, as it encroaches upon thesphere of the Judicature contrary to Article 4 of the constitution and denies anaggrieved party remedy before an impartial tribunal contrary to Article 13 (6) (a)of the same constitution.The position concerning section 6 is slightly different. That section reads:No proceeding may be instituted under this Act, other than in the Tribunal havingjurisdiction over the area in which the dispute arises.90