joran lwehabura bashange vs minister for constitutiona legal affairs anotherl 2024 tzhc 774 13 march 2024

joran lwehabura bashange vs minister for constitutiona legal affairs anotherl 2024 tzhc 774 13 march 2024

Section 44(1) and (2) of the Law of Limitation Act are void to the extent of their inconsistency with the Constitution, as they confer judicial powers on the Executive, lack procedural safeguards, deny the right to be heard, are discriminatory, arbitrary, and create legal absurdity. These provisions violate Articles 13(1), (2), (3), (6)(a), 26(1), and 29(1) of the Constitution, as well as domesticated international human rights instruments. The absence of procedural fairness, right of appeal, and the potential for bias render the provisions unconstitutional.

Citation
joran lwehabura bashange vs minister for constitutiona legal affairs anotherl 2024 tzhc 774 13 march 2024
Parties
Petitioner: Joran Lwehabura Bashange; 1st Respondent: Minister for Constitutional and Legal Affairs; 2nd Respondent: Honourable Attorney General
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
13 March 2024
Procedural Posture
Miscellaneous Civil Cause (constitutional Petition) / Judgment
Outcome
Petition allowed in part; Section 44(1) and (2) of the Law of Limitation Act declared void to the extent of inconsistency with the Constitution; Government given 12 months to rectify the law; each party to bear its own costs.
Legal Topics
Separation of Powers, Judicial Review, Equality Before the Law, Due Process, Right to Be Heard, Extension of Limitation Periods, Natural Justice, Proportionality, Remedies for Unconstitutional Legislation
Source Language
English
Constitutional Law Administrative Law Human Rights Law Separation of Powers Judicial Review Equality Before the Law Due Process Right to Be Heard +4 more

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Parties

Joran Lwehabura Bashange

Petitioner

Minister for Constitutional and Legal Affairs

1st Respondent

Honourable Attorney General

2nd Respondent

Procedural Posture

Miscellaneous Civil Cause (constitutional Petition) / Judgment

Legal Issues

  1. 1 Whether Section 44(1) and (2) of the Law of Limitation Act (LLA) contravene the Constitution of the United Republic of Tanzania (CURT)
  2. 2 Whether Section 44(1) and (2) of the LLA contravene international and regional human rights instruments ratified by Tanzania
  3. 3 Whether the impugned provisions are arbitrary, lack procedural safeguards, and violate principles of natural justice

Ratio Decidendi

Section 44(1) and (2) of the Law of Limitation Act are void to the extent of their inconsistency with the Constitution, as they confer judicial powers on the Executive, lack procedural safeguards, deny the right to be heard, are discriminatory, arbitrary, and create legal absurdity. These provisions violate Articles 13(1), (2), (3), (6)(a), 26(1), and 29(1) of the Constitution, as well as domesticated international human rights instruments. The absence of procedural fairness, right of appeal, and the potential for bias render the provisions unconstitutional.

Court Disposition

Petition allowed in part; Section 44(1) and (2) of the Law of Limitation Act declared void to the extent of inconsistency with the Constitution; Government given 12 months to rectify the law; each party to bear its own costs.

Orders

  • Section 44(1) and (2) of the Law of Limitation Act declared void to the extent of inconsistency with the Constitution.
  • Government (Attorney General) ordered to rectify the law within 12 months; failing which the provisions will be struck out from the statute book.