PETER NG'OMANGO v GERSON M.K. MWANGWA AND THE ATTORNEY GENERAL 1993 TLR 77

Facts

The plaintiff sued the Principal of Mpwapwa Teachers' College who, being a public servant, applied to have the government joined as a co-defendant but his application was rejected. Then the Attorney General applied to have the government joined as a co-defendant; this application was also rejected. But finally the government was, by third party notice, joined as 2nd defendant. A preliminary objection was then raised on behalf of the government to the effect that the suit was incompetent for want of consent of the Minister to sue the government, a requirement of s 6 of the Government Proceedings Act 1967. The plaintiff countered that s 6 of the Act was unconstitutional for infringing the right of free access to court, and was therefore null and void. 

Held: (i) The right of an individual to have free access to the courts is well recognized by the Constitution; the requirement of consent of the Minister before one can sue the government as imposed by s 6 of the Government Proceedings Act 1967 infringes in a big way theconstitutional right of free access to the courts for remedies.

 (ii) The consent powers of the Minister under s 6 of the Government Proceedings Act 1967 are so arbitrary and oppressive, and not subject to any restraint or control against abuse that they cannot be saved as lawful by article 30 of the Constitution.

 (iii) The provision requiring the Minister's consent to sue the government is so broadly drafted that it offends the doctrine of proportionality; it denies an effective and prompt remedy even to those with clear and genuine grievances against the government.

 (iv) The requirement of ministerial fiat to sue the government defeats the spirit of the Government Proceedings Act 1967 by bringing back outdated notions which held that rulers I could do no wrong and could not be sued, and which have now been discarded by nearly all commonwealth countries.

 (v) Obiter: it is inappropriate for the law to give citizens of one part of the United Republic, Zanzibar, better access to court to complain against the government than the rest of the citizens.

 (vi) Obiter: the requirement of ministerial fiat to sue the government militates against the principles of accountability, openness and transparency of the government, all of which go well with the recently re-introduced multi-party democratic system. 

 (vii) Section 6 of the Government Proceedings Act 1967 is unconstitutional and null and void.