Summary
Onesmo Olengurumwa (“Olengurumwa”/the “Appellant”), a known human rights advocate and defender, brought a claim in 2021 because the Government of Tanzania had published the Written Laws (Miscellaneous Amendments) (No. 3) Act of 2020 (“Written Laws”), whose sections six and seven amended Tanzania’s Basic Rights and Duties Enforcement Act (“BRADEA”) in a manner that the Appellant argued discriminated against and barred individual Tanzanians from being able to exercise their constitutional rights and bring legal claims on behalf of the public’s interest to protect the rights in the Tanzanian Constitution (“Constitution”). Specifically, the Written Laws amended section four of BRADEA introducing subsections (2), (3), (4), and (5), which applied new requirements to public interest lawsuits: Subsection (2) required that public interest claims be accompanied by affidavits stating how the claimant has been personally affected by the issue; Subsection (3) required claimants to abide by the provisions in the constitutional article on personal rights infringement (Article 30 (3)); Subsection (4) required claims to be brought against only the Attorney General if redress was sought against head Tanzanian government officials; and, Subsection (5) required that claimants exhaust all available remedies under other written laws. The Appellant sought a declaratory judgment that subsections (2), (3), (4), and (5) of section four of BRADEA were inconsistent with the Constitution for violating Articles 13 (2), 13 (4), 13 (6)(a), 26 (1), and 26 (2). The High Court had found Olengurumwa’s challenge to the constitutionality of the amendments to be without merit and decided against applicant claims.
The Appellant appealed on eight grounds, again seeking a judgment denouncing subsections (2), (3), (4), and (5) as unconstitutional. Olengurumwa addressed subsections (2) and (3) in the first, second, and third grounds of appeal, tying them to violations of Article 26 brought in the original claim; the subsections were also the subject of the fourth and fifth grounds which dealt with the objectives of the amendments. Again, following from the initial claim, Subsection (4) was connected to violations of both Article 26 and Article 13 in the seventh ground of appeal, and the eighth ground stated subsection (5) was also in violation of Article 26. The sixth ground of appeal did not directly address one of the amendments, but rather the High Court’s determinations on the standard of proof in public interest litigation cases and that the amendments receive support from Article 30 of the Constitution. The respondent, the Government of Tanzania represented by the Attorney General, maintained that the amendments to section four of BRADEA were to protect the court from frivolous lawsuits, prevent abuse of the court process, and protect against violations of basic rights.
In 2025, three years after filing the appeal, the Court of Appeal of Tanzania (“Court”) gave their judgment finding in favor of Olengurumwa on all eight grounds.
The first three grounds against the additions of subsections (2) and (3) to section four of BRADEA argued that the subsections 1) compromised the independent character of the public-interest-litigation-focused Article 26 (2) of the Constitution by subsuming it into Article 30 (3), 2) introduced a requirement which does not exist in the Constitution, and 3) abolished public interest litigation by requiring proof of personal harm along with each petition.
The Court began by stating that the constitutional articles employed and impacted by BRADEA have been in effect since before BRADEA was introduced in 1994, with the purpose of protecting both public and personal rights. The Court based its analysis on the doctrine of supremacy, meaning that all provisions of the Constitution that are explicitly there to protect and defend the Constitution need to be fiercely protected themselves, and cannot be infringed indirectly or directly. After explaining that Article 26 (2) allows any person to bring a claim in the interest of protecting the public, while Article 30 (3) allows any person to bring a claim who has had their rights personally infringed, the Court said that the Written Laws requiring compliance with Article 30 (3) before being able to proceed with Article 26 (2) infringes the ability of Article 26 to realize its public interest objective. This impediment is then fortified by the requirement of an affidavit on the petitioner’s own personal interest. There is no guarantee that every claimant will be able to demonstrate personal interest. Article 26 (2) involves a notion of a public duty to protect the Constitution which is undermined by the inclusion of subsections (2) and (3), which led to the Court allowing the first three grounds of appeal.
The fourth and fifth grounds of appeal involved the Appellant challenging the High Court’s determination that without demonstration of personal interest as subsections (2) and (3) mandated, public interest litigation could involve ulterior motives such as private gain or bad faith which needed protecting against; that determination, in turn, led to their holding that those subsections were added to prevent people with such motives from filing petitions.
The Court of Appeals stressed that good laws should not create restrictions to people trying to exercise their constitutional rights, particularly when there is no justification for the restriction. The Court found the High Court’s reasoning for the validity of subsections (2) and (3) made little sense, with the Court seeing no correlation between preventing ulterior motives and requiring claimants to show their personal interest in the public interest claims. The affidavit on an issue’s personal impact does not ensure that people are bringing claims solely with the public’s interest in mind. The Court also agreed with Olengurumwa that there are already means to meet this goal, such as section 10 (1) of BRADEA; a single judge stands in a better position to determine whether a petition is frivolous after receiving it. The Court ultimately upheld the fourth and fifth grounds of appeal, stating that the amendments created an unjustified restriction on the rights of the people to protect the Constitution and bring claims on behalf of the public, and that the subsections invalidated the power of the courts to consider and determine fruitful public interest petitions.
The sixth ground of appeal was against the High Court’s determination that the required standard of proof for petitions concerning the Constitution is beyond a reasonable doubt, therefore allowing the High Court to hold that Olengurumwa failed to prove his case. The Appellant also challenged the High Court’s agreement with the Attorney General that the amendments to BRADEA are supported by Article 30 of the Constitution.
The Court found that the High Court misinterpreted the Court’s own case law, where the High Court cited a decision in which the Court dispelled the idea that the standard of proof for constitutional petitions is beyond a reasonable doubt. The Court maintained that they will not change their position on the issue and require petitioners to prove their cases beyond a reasonable doubt, despite the government arguing that the standard of proof should be that high since the Constitution is the highest form of law. On whether Article 30 saved the BRADEA amendments, the Court found that the objectives within Article 30 protect laws for the common good and laws limiting the enjoyment of individual rights when they conflict with the rights of the general population. These objectives led the Court to find that there was no connection between Article 30 and the BRADEA amendments, allowing the Court to find for the Appellant on both parts of the sixth ground of appeal.
The seventh ground of appeal addressed the addition of subsection (4), which Olengurumwa argued granted immunity for certain government officials since they are not allowed to be impleaded in petitions for their own actions, instead only allowing the Attorney General to be named. According to the amendment, the President, Vice President, Prime Minister, Speaker, Deputy Speaker, and the Chief Justice cannot have petitions brought against them even when redress is sought against them, which the Appellant said impairs accountability.
The Court stated that according to Article 26 of the Constitution, every person, including office bearers, can be held to observe and abide by the laws of Tanzania and its Constitution. This understanding is supported by Article 13 as well, which upholds the doctrine of equality before the law. In a legal system where a person’s presence in court is paramount in order to be held accountable for their actions as a proper party, the Court held that the Attorney General does not have the ability to assume the legal or constitutional duties of the officials named in subsection (4), making the amendment unconstitutional. The Court found that subsection (4) limited the powers of the court by dictating who could appear before it and that the amendment did not allow for justice under the law, leading to the approval of the seventh ground of appeal.
The final ground of appeal was amendment’s subsection (5), challenging the High Court’s holding that exhaustion of remedies was a required condition for constitutional petitions and arguing that the subsection (5) refers to remedies that do not exist.
The Court determined that the addition of subsection (5) was in support of the affidavit submission as required by subsection (2), which the Court already found to be unconstitutional. Since there is no personal interest that needs to be recognized as part of public interest litigation, the Court ultimately agreed with the Appellant that there are no other remedies through which claimants pursuing public interest litigation have followed – it is the High Court’s power to deal with constitutional petitions, as granted through Articles 26 and 30 (3) of the Constitution. The Court held that the inclusion of subsection (5) was unnecessary and granted the eighth and final ground of appeal.
