Tortfeesor - reader will be able to understand the meaning of fiat, ministerial fiat, how PDF

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reader will be able to understand the meaning of fiat, ministerial fiat, how the doctrine operates, legal consequences and how one can seek for remedies before the court of law, in case his rights have been violated...

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UNIVERSITY OF IRINGA

FACULTY OF LAW L.L.B. 2 COURSE NAME:

LAW OF TORT

INSTRUCTOR’S NAME:

SIR. CHARLES NTAMTI

STUDENT NAME’S:

FIRST BINAMUNGU

STUDENT REG NO:

LLB-25076

NATURE OF THE WORK:

INDIVIDUAL ASSIGNMENT

DATE OF SUBMISSION:

7 TH DESEMBER, 2020

QUESTION; a) With reference to the scenario above, discuss on the meaning of ministerial fiat in Tanzania and elucidate its impact to the individual right as far as the law of tort is concerned. b)

With reference to the Government Proceeding Act, Cap 5 Revised Edition of 2019, discuss on the procedure on how to sue government

a) The word Fiat is a Latin word which means let it done, or in judicial perspective can be regarded as a short order or warrant of a judge or magistrate directing some act to be done, as in in administrative organs, the term can be perceived as an authority issuing from some competent source for the doing of some legal act 1. In other way the term fiat can be taken as a decree or an authoritative but arbitrary order2 which means the order does not adhere to any principle that could lead the victim attain any justice in case there has been unfair order made against them, instead the order has to be implemented as it was provided3. Since the term fiat implies an order given by the person with authority then ministerial fiat refers to an Executive Minister personnel that by virtue of their title have the power to give an order for a certain act to be taking place4 therefore, since the minister forms part in a government then ministerial fiat can be termed as government decree, though the order normally can be perceived as an absolute one5 for a fact that once it is given over someone then there is no way the victim could have a chance to defend themselves. As it was observed in the case of Raymond v Attorney General6 The DPP as supreme prosecuting authority may intervene at any time, remove the conduct of the prosecution from the Clerk or the individual and take over the case. In Tanzania, Ministerial Fiat can be discussed basing on the executive declaration to the public which some of them have been causing dilemma and unpleasant situations to the public as the administrative authorities once deciding over certain situations does not real consider the direct interest that the public benefit from the matter in question but also the decisions that have been made by the executive not always for the benefit of the public, some have been seen like of more political orientation than focusing on the greater good of the public like it was observed in the case of Legal and Human Rights Center and Tanganyika Law Society v Hon. Mizengo Pinda and The Attorney General7, as it can be observed that the statement made by the former Prime Minister was because of the political activities that was been done with the other side of political party. 1 https://legal-dictionary.thefreedictionary.com/fiat 2 https://dictionary.findlaw.com/definition/fiat.html 3 https://dictionary.reverso.net/english-cobuild/in+arbitrary+order 4 https://www.express.co.uk/news/politics/1176028/John-Bercow-resigns-executive-fiat-meaning-what-doesexecutive-fiat-mean 5 https://www.express.co.uk/news/politics/1176028/John-Bercow-resigns-executive-fiat-meaning-what-doesexecutive-fiat-mean 6 (1982) 75 Cr. App. R. 34. 7 Misc. Civil Cause No. 24 of 2013

Since the state of United Republic of Tanzania have been formed with three organs with equal value and status which also their operation in the state are interdependent to one another but there have been some occasions where the executive organ acts like its more superior than the rest of organs like The Judiciary and The Parliament hence seen trying to make decisions on behalf of them and direct them the way executive wants the decisions to be as it was observed in the case of R v Iddi Mtengule8 where the area Commissioner questioned the decision made by the court for acquitting the defendant, but also it was observed in the case of Hamis Masisi and Another v R9 as in that case the magistrate cancelled the bail to the defendant because he was given the order by the Regional Commissioner of Mara to do so, but the learned Judge held that the magistrate was not supposed to follow what he was been told by the Regional Commissioner instead he was supposed to stand strongly and defend the independence of judiciary, also in the case of All Juu ya Watu v Losselian Mollel10 where the learned judge withdrew from the case, after recognizing that, the file of the case has been withdrawn from his office without his consent, he claimed that, the action was the total harassment and interference of the independence of the judiciary. However, there has been a notion that some executive officers once exercising their duty have been exceeding to the limit where they were no supposed to, and tend to consider as if they are above the law while the rule of law requires that every person is equal before the law as provided under Article 13 of the constitution of the United Republic of Tanzania11 but also Sammatta J, once said “All government leaders, president inclusive are like the humblest citizens bound to comply, with the law of this country, that maxim the king can do no wrong has no place In our law even if the word president is substituted from the word king, every person, institution or organization in this country is enjoined to pay respect to the principle of supremacy of the law”12 However, due to the ministerial fiat the following could be the impacts to the individual rights hence they can be able to seek for damages under the law of Tort.

8 (1993) 9(1985)T.L.R 24 10 (1979) L.RT NO.6 11 Cap 2 R.E 2010 (as amended from time to time) 12 Opsit, MAHINA, p 304

Denial of someone’s basic rights like it was observed in the case of DPP v Daudi Pete13 where the Director of the Public Prosecution denied to grant a bail to the appellant as per the provision of section 148 (5) of the Criminal Procedures Act14 while the constitution of United Republic of Tanzania15 under Article 13 (6) b provides for the presumption of innocence, as everyone shall be presumed to be innocent until proven otherwise before the competent court of law. As from the scenario it has seen that mr. Michuzimingi s/o Mapesa did not got his natural justice right of being heard hence accused for something he is not, thus destroyed his reputation of which he is entitled for compensation for destruction of his reputation. Violation of Article 107B of the Constitution Of united Republic of Tanzania16 which requires for independence of judicially as it was observed in the case of R v Iddi Mtengule17 after the commissioner to question the decision made by the magistrate against the defendant but also in the case of Hamis Masisi and Another v R18 where the magistrate decided to cancel the bail for the defendant just because was ordered to do so by the regional commissioner, something which is also contrary to the provision of Article 13 (6) b of the constitution of United Republic of Tanzania.19 From the scenario it has seen that the government trying to deny the right of Mr. Michuzimingi s/o Mapesa his right for compensation before the court of law for instituting a suit without a consent from minister of justice which is contrary as per the decisions of the court in the case of Peter Ng’omango v Gerson M.K. Mwangwa and Another 20 and the case of Kukutia Ole Pumbun and Another v Attorney General21 of which the court held that “The constitution reorganized the rights of an individual to have a free access to the court for remedy, hence section 6 of the government proceedings Act of 1967, which require a minister’s fiat in order to sue the government infringe the constitutional right of free access to the court for remedy and the Act was not for public interest hence void and unconstitutional”.

13 Criminal Appeal No. 28 of 1990 14 Cap 20 15 Cap 2 R.E 2010 (as amended from time to time) 16 Cap 2 R.E 2010 (as amended from time to time) 17 (1993) 18 (1985)T.L.R 24 19 Cap 2 R.E 2010 (as amended from time to time) 20 (1993) T.R.L 77 21 (1993) T.R.L 159

Also ministerial fiat can lead to the chaos to the public and violation of human dignity as per the requirement of Article 12 (2) of the Constitution of United Republic of Tanzania 22 as it was observed in the case of Human Rights Center and Tanganyika Law Society v Hon. Mizengo Pinda and The Attorney General23 after the Hon. Prime Minister Mizengo Pinda to declare the statement in one among parliament session maswali na majibu ya papo kwa papo kwa Mheshimiwa Waziri Mkuu that “…ukifanya fujo umeambiwa usifanye hiki ukaamua kukaidi utapigwa tu… nami nasema muwapige tu kwa sababu hamna namna nyingine kwa maana tumechoka…” something which violate almost all rights of the citizen like one’s dignity as per Article 12(2), equality before the law as per Article 13, and the rest up to Article 21 of the Constitution of the United Republic of Tanzania24. As from our scenario the defamation made against Mr. Michuzimingi s/o Mapesa did not only affect himself but also his innocent family including his university children. Despite the fact that ministerial fiat in Tanzania happens in a manner of administrative way but the consequences to the individuals and the public at large render the victims of the ministerial fiat to seek for compensations since some of them lose their rights even properties as in the case of James Bita v Idd Kambi25 where the Regional commissioner interfered the court and ordered the magistrate to shift the case from court to the village council as the dispute was of land something which could led for one to lose his right in unfair way and hence decides to seek for redress in other authorities. As from the scenario it has seen that after Mr. Michuzimingi s/o Msemakweli held liable for untrue statement made by the college principal Mkaliwao led for her mother to faint and suffer coma for three months b) Historically the Tanzania Government Proceedings Act was developed from the one of our colonial master the British, which was known as the Crown Proceedings Act of 1947 perhaps in the said Act there is a provision which allows the government to be sued like any other person individually or a corporate, unlike in some of the British colonies including Tanzania formally known as Tanganyika before union with Zanzibar, where after the independence Tanzania inherited most of her colonial master’s laws including the so called government Proceedings Act, which in the year of 1967 the government proposed a bill on the enactment of the Government 22 Cap 2 R.E 2010 (as amended from time to time) 23 Misc. Civil Cause No. 24 of 2013 24 Cap 2 R.E 2010 (as amended from time to time) 25 (1979) L.R.T NO. 9

where the massive amendment took place in the one which was adopted from the British colonialist despite that the Act did not come into enforcement until the year of 1974 after several amendments which were made under the act No 40 of 1974. However, regardless with the amendments that took place still it was way much harder to sue against the government for a fact that in order for one to do so, have to seek for the consent from the minister of justice or the government itself, as it was observed in the case of Patric Maziku v G.A Sebabili and 8 Others 26. Henceforth that notion came into an end after the decisions of the court made under the case of Peter Ng’omango v Gerson M.K. Mwangwa and Another 27 together with the case of Kukutia Ole Pumbun and Another v Attorney General 28 where the court held that “The constitution reorganized the rights of an individual to have a free access to the court for remedy, hence section 6 of the government proceedings Act of 1967, which require a minister’s fiat in order to sue the government infringe the constitutional right of free access to the court for remedy and the Act was not for public interest hence void and unconstitutional”. Hence allowed everyone who have been a victim of government actions that lead for his rights to be violate to seek for remedies and compensation with proper procedures as follows Prior to the procedures section 3(1) of the Government Proceedings Act 29 provides for the liabilities of the Government in civil proceedings so long as that will be instituted by whether a private person of full age with capacity to do so then the claims will be enforced as per this provision. However, for a person to bring allegation against the government before the court of law has to send a notice of intention to sue of not less than ninety days to the government minister, department or any officer concerned showing the basis of his claim, as provided under section 6(2) of the Government Proceedings30 But also section 7 of the Government Proceedings Act31 provides for the civil suits against the government shall have to be instituted before the High Court

26 H.C.T at Tabora civil.case no 3 of 1982 27 1993) T.R.L 77 28 (1993) T.R.L 159 29 Cap 5 R.E 2019 30 Cap 5 R.E 2019 31 Cap 5 R.E 2019

The law also requires for one to sue against the government shall have to institute against the Attorney General as the first respondent followed by the one whose action is in question as provided under section 10 of the Government Proceedings Act32 Conclusively, as it well known that the government is of two categories one the central government and the local government as established under the Article 145 (1) of the Constitution of United Republic of Tanzania33 yet these two categories have different procedure once one had to take an action on them as the procedures for suing the local government provided under the Local Government Authorities Act since the procedures for the central government provided under the Government Proceedings Act.

32 Cap 5 R.E 2019 33 Cap 2 R.E 2010 (as amended from time to time)

BIBLIOGRAPHY The Constitutions of United Republic of Tanzania Cap 2 R.E (as amended from time to time)

Acts The Government Proceedings Act Cap 5 R.E 2019

Books MAHINA, C.P, HUMAN RIGHTS IN TANZANIA, Rudger kopper KOLN, 1997.

Cases Raymond v Attorney General (1982) 75 Cr. App. R. 34. All Juu ya Watu v Losselian Mollel (1979) L.RT NO.6 Hamis Masisi and Another v Republic (1985)T.L.R 24 James Bita v Idd Kambi (1979) L.R.T NO. 9 Peter Ng’omango v Gerson M.K. Mwangwa and Another 1993) T.R.L 77 Kukutia Ole Pumbun and Another v Attorney General (1993) T.R.L 159 DPP v Daudi Pete Criminal Appeal No. 28 of 1990

Online Sources https://legal-dictionary.thefreedictionary.com/fiat https://dictionary.findlaw.com/definition/fiat.html https://dictionary.reverso.net/english-cobuild/in+arbitrary+order https://www.express.co.uk/news/politics/1176028/John-Bercow-resigns-executive-fiat-meaningwhat-does-executive-fiat-mean https://www.express.co.uk/news/politics/1176028/John-Bercow-resigns-executive-fiat-meaningwhat-does-executive-fiat-mean...