Mwalusanya J: The plaintiff Peter s/o Ng'omgango is a tutor at Mpwapwa Teacher's College. He filed I a suit against the principal of Mpwapwa Teacher's College one Mr Gerson M K Mwangwa claiming Shs 1,201,762/= as damages for malicious prosecution
and defamation. The defendant applied to have the government joined as co-defendant simply A because he is a public servant but I rejected the application. Then the State Attorney i/c of Dodoma Zone Mr Mwambe, duly instructed by the Attorney-General applied to have the government joined as a co-defendant and again the application was rejected. I advised the defendant that the proper procedure was for him to apply for a third party notice so that the government is joined as B co-defendant. That he did and the government was finally duly joined as the 2nd defendant.
As expected, the 2nd defendant (the govt) in its written statement of defence has raised a preliminary objection to the effect that the suit is incompetent, for want of consent of the Minister for Justice C under the provisions of the Government Proceedings Act 16 of 1967. In his reply the plaintiff has raised a constitutional point to the effect that the Government Proceedings Act 16 of 1967 as amended by Act 40 of 1974 is unconstitutional and so void. He said that if offends arts 13(3), 13(6)(a) D and 30(3) of our Constitution and so it should be declared void under s 64(5) of the Constitution as well as s 5(1) of Act 16 of 1984. The Republic was represented by Mr Ndunguru, State Attorney while the plaintiff argued the point in person.
The State Attorney Mr Ndunguru conceded that the constitutional point in question was duly served E on him as required by s 17A(2) of the Law Reform (Fatal Accidents Misc Provisions) Ord Cap 360 as amended by Act 27 of 1991. So he said that he was quite ready to argue the point. F
The points raised by Mr Ndunguru were two-fold. First that, assuming that the right of an individual to have access to the courts is granted under arts 13(3), 13(6)(a) and 30(3) of the Constitution, yet the same have not been infringed by the Government Proceedings Act. He said that s 6 of the G Government Proceedings Act, which requires written permission from the Minister of Justice in order to sue the government was a mere procedural matter which did not take away the right to sue the government. He said that the right to sue the government is left intact. He contended that since it is H only a procedural matter, it does not infringe the right of access to the courts. He said that it is just like a procedure which is provided in the Civil Procedure Code that one cannot sue any defendant until he has filed a proper plaint in court or until he has given a proper notice to sue the defendant. In fine he argued that the requirement of a fiat from the Minister for Justice is not inconsistent with the right to have a free access to the courts. I
A Secondly, Mr Ndunguru argued that even if the requirement of a ministerial fiat is taken to infringe the right of free access to the courts provided for in the Constitution, nevertheless he argued the Government Proceedings Act is saved by the derogation clause in article 30(1) and (2) of the Constitution as it is in public interest. He said that it was in public interest for two reasons. First that B the restriction is necessary so as to avoid unnecessary harassment of the government so that it functions smoothly when serving the general public. He said that public policy requires that the government conduct its business smoothly without unnecessary harassments and impediments C otherwise the general public will not be served well. Secondly the State Attorney argued that if the High Court will declare this statute to be unconstitutional, the courts will be inundated with numerous cases against the government and the courts will not be able to cope with the flood of those cases. D So he said that the requirement of a ministerial fiat was in public interest under article 30(1) and (2) of our Constitution, so as to limit the number of cases going to court. And at the same time the government will be spared the embarrassment of being the defendant in frivolous and vexatious cases. He said that, that situation would not be healthy if the requirement of a ministerial fiat is E abolished.
The plaintiff replied by stating that the requirement of a ministerial fiat was not a mere procedural matter but substantively restricts the right to have free access to the courts. He continued to submit F that the Government Proceedings Act is not in public interest and so it is not saved by the derogation clause or claw-back clause. He said that since in every case where the government is the defendant, he said government would be fully heard and defended by a competent State Attorney, he G could not see any reason as to why the ministerial fiat should be imposed. He said that the government would not be prejudiced in any way if the ministerial fiat is taken away. He also argued that the requirement of a ministerial fiat is out of touch with the newly acquired multi-party democracy which stand for openness and transparency on the part of the government.
H Naturally the first question to be answered by this court is as to whether the right of free access to the courts for a remedy is recognised by our Constitution. It is my finding that the right of an individual for free access to the courts is recognised by our Constitution. First we have article 13(3) of our I Constitution which provides: `The Civil Rights, obligations and interests of every person
shall be protected and determined by competent courts of law.' And article 30(3) of our Constitution A provides that if one feels that his constitutional rights have been violated, he has the right to `institute proceedings for relief in the High Court'. Not only that we have article 13(1) of our Constitution which provides that all persons are entitled to the protection of the law which envisages that any person will B have a free access to the courts for a remedy. And finally we have article 13(6)(a) of our Constitution which provides for a right of a fair hearing by the court of law, when ones rights and obligations are being determined. The right to be heard includes the right to have free access to the courts to file a suit for a remedy. That was the interpretation by the European Court of Human Rights C in the case of Golder v UK(Judgment of 21 February 1975) in respect of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) which is worded in similar terms like our article 13(6) of our Constitution. That Court invoked a purposeful D construction instead of a literal construction of the Constitution. That case is digested by a distinguished English jurist Mr Anthony Lester QC at 1063 of the Commonwealth Law Bulletin (1991) 17 CLB 1055 in his article titled `Preparing and Presenting a Human Rights Brief'. I adopt that E persuasive authority by the European Human Rights Court. The above account amply demonstrates that our Constitution recognises the right of an individual to have free access to the courts for a remedy.
The next question is whether the right to have free access to the courts for a remedy is infringed by F the mere fact that s 6 of the Government Proceedings Act 1967 requires a ministerial fiat before one files a suit in court. Counsel for the Republic Mr Ndunguru argued strongly to the effect that the constitutional right to have free access to the courts for a remedy is not infringed by the requirements of a ministerial fiat, because he said that was a mere procedural matter while the right to file a suit is left intact. That problem can only be answered by looking at the international human rights G instruments and other comparative jurisprudence. It is a general principle of law that the interpretation of our provisions in the Constitution have to be made in the light of jurisprudence which has developed on similar provisions in other international and regional statements of the law. That H was the view taken by Kyalali CJ in the case of AG v Lesinoi Ndeanai & Another (1) at page 222 where he said: `On a matter of this nature it is always very helpful to consider what solutions to the problems other courts in other countries have found, since basically human beings are the same though they may I
A live under different conditions.' The same view was repeated by the Tanzania Court of Appeal in the case of DPP v Ally Haji Ahmed & Ten Others (2) where the court emphasized that in interpreting the Constitution the courts have to take into account the provisions of the Universal Declaration of Human Rights (1948) and other treaties which Tanzania has ratified. That view is also in line with the B Harare Declaration of Human Rights issued at the end of a high level judicial colloquium of Commonwealth Judges on the topic of Domestic Application of International Human Rights Norms, convened in Harare, Zimbabwe between 19 and 22 April 1989. Our Chief Justice Hon Francis Nyalali attended that colloquium. In their declaration they endorsed the Bangalore Principles (1988) to the C effect that it is within the proper nature of the judicial process for national courts to have regard to international human rights norms (whether or not incorporated into domestic law) for the purpose of D resolving ambiguity or uncertainty in national Constitutions and legislation. On the same point see Maxwell on the Interpretation of Statutes (1969) 2nd ed at 183 as well as the judgment of Lord Denning MR in the case of R v Sec of State for Home Affairs ex-parte Bhajan Singh (3) at 1089. E Now Tanzania has ratified the following international and regional instruments which provide for the right of free access to the courts without any impediments: the Universal Declaration of Human Rights (1948) in article 8; the African Charter on Human and Peoples Rights (1981) in article 7(1) F which Tanzania ratified on 18 February 1984; the International Covenant on Civil and Political Rights (1976) in article 2(3) which Tanzania ratified on 11 September 1976. All those treaties or instruments are very specific that the right of free access to the courts should be without any impediments, including the impediment of the requirement of a ministerial fiat. That was what was decided by the G European Court of Human rights in the Golder case (supra). The UN Human Rights Committee interpreting that right in the case of Wight v Madagascar case No 115/1982 held that a right of access to the courts is infringed not only when an individual is denied the right to file a suit, but also H when restrictions are imposed such that the right to file a suit is rendered illusory or is cumbersome (see at 45 of the Report of the Proceedings of the Judicial Colloquium in Harare, Zimbabwe 19-2 April 1989 published by the Commonwealth Secretariat in November 1989).
That is not all, as we have also comparative jurisprudence. Northern Ireland had the Ministers and I Secretaries Act of 1924 which was in pari materia with our Government Proceedings Act 1967 as it
required the consent of the Attorney-General before the government was sued. The Supreme Court A of Northern Ireland in the case of Macauley v Minister for Posts and Telegraphs (4) held that the provision requiring the consent of the Attorney-General was unconstitutional and void as it was in breach of the citizen's right to have access to the courts for a remedy. Nearer home we have the B case from Uganda, the case of Shah v Attorney-General (No 2) (5). The matter there concerned the provision of s 2(1) of the Local Administrations (Amendment) Act 2 of 1969 which imposed the requirement of a ministerial fiat before one could sue the government. Justices Jones, Mead and Wambuzi unanimously held that the provision in question was unconstitutional and void in that it C purported to deprive an aggrieved party of the protection of the law given by the Ugandan Constitution in article 8(2)(a) which is the equivalent of our article 13(1) and (3) of our Constitution. Moreover a very powerful Commission known as the Nyalali Commission in Book Three of its recommendations D at p 30 holds the view, that the requirement of a ministerial fiat is unconstitutional because it deprives an individual the right of a free access to the courts, and accordingly it recommended for its abolition.
In the light of the reasons enumerated above, I am unable to agree with counsel for the Republic Mr E Ndunguru that the requirement of a Ministerial fiat does not infringe the constitutional right of free access to the courts for a remedy. The right is infringed in a big way.
Granted that the requirement of a ministerial fiat infringes the Constitution, is it saved by the F derogation clause or claw-back clause in article 30(1) and (2) of our Constitution for being in public interest. The Tanzanian Court of Appeal in the case of DPP v Daudi Pete (6) held that a statute which infringes the basic human rights is not void if the Republic proves that it is in public interest. G The Tanzanian Court of Appeal made two guidelines as to which law which infringes the basic human rights may be saved by the derogation clause. First the law in question should make adequate safeguards against arbitrary decisions. Secondly the said law should not offend the H doctrine of proportionality or reasonableness - that is the law should not be too broadly drafted as to net the innocent and the offenders. I will discuss these two points seriatim.
The law which is alleged to have been saved by the derogation clause for being in public interest, I must have adequate safeguards against arbitrary deprivation of basic human rights. The Tanzania
A Court of Appeal in the Daudi Pete (6) case quoted with approval the decisions of the Supreme Court of India in the case of Maneka Gandhi v Union of India (7) to the effect that any law which does not have adequate safeguards and effective control against arbitrary interferences by public authorities with the rights safeguarded is not `law'. A lawful `law' implies compatibility with the rule of B law. The Privy Council in the case of Ong Ah Chuan v Public Prosecutor (8) at 669-671 made a similar remark. Therefore it is not enough to have a `law' which does not have safeguards, because it is not `law' at all - see Prof H W R Wade in his book Administrative Law (1965) Oxford University C Press at page 37. And Chief Justice Francis Nyalali made a pertinent remark when addressing the legal community at the University of DSM in 1985 on the topic `The Bill of Rights in Tanzania' (1991) vol 8 DSM University Law Journal when he said at 2: `This overriding of rights and duties of the D individual by rights and duties of the community does not however entail arbitrary action on the part of the community or its institutions. As illustrated by the provisions of article 30(2) it has to be done according to law'. The European Court of Human Rights has also held in the case of the Silver case (9) that a `law' that infringes basic human rights without any adequate safeguards against arbitrary E action, is not `law'. Now a glance at the Government Proceedings Act 1967 will reveal that it is not a lawful `law' because it does not have any safeguards against arbitrary action by the Minister for Justice. The arbitrariness and oppressive nature of the Government Proceedings Act 1967 has been F amply documented - see Report of the Nyalali Commission, Book Three at page 30 and the LLM Dissertation of 1985 by law lecturer of the University of DSM Mr M K B Wambali titled The Tort Liability of the Government in Tanzania. The impact of the Government Proceedings Act 1967 on the rights of individual claimants see Mimeo at the University of DSM Library. First there is no appeal Gagainst the decision of the Minister for Justice contrary to article 13(6)(a) of our Constitution. Secondly, there is all likelihood that the ministerial power may be grossly abused as the Act does not provide for restrictions of any type on the Minister. Thirdly there are no guidelines laid down for the H Minister to follow in exercising this power. We are all at the mercy of his idiosyncrasies. Fourthly there is no obligation imposed on the part of the Minister to answer the application and so Ministerial power may affect the period of limitation. Finally the consent has an extremely great likelihood of not I serving the ends of justice, for how come that the government is a judge in its own cause? The decision will always
be at the expense of the individual rights. The procedure patently defends the ends of justice. A
There can be no doubt that the Ministerial fiat requirements has been used by the government as a tool of oppression against the people it govern. That much has been documented by Mr Wambali in B his dissertation. He found that one could hardly make out tangible principles by which the Minister for Justice was guided in reaching the decision whether or not consent should be granted. He found that in each case any plausible justification was made for either a grant or a refusal. In short the decisions were found always to be palpably arbitrary. Examples are cited in the thesis wherein C consent was refused simply because the Minister thought if the matter went to court a good quantum of damages would have been awarded by the courts to the claimant on merits. In other cases Mr Wambali found that in many instances the Minister reached his manifestly adverse decision without referring to any supporting legal authorities or basing them on incorrect points of law. Another valid D complaint he discovered was the length of time taken to deal with the applications. It usually takes an unnecessarily long time. He found that out of the 58 tort claims he studied, only 6 applications for consent were granted by the Minister, that is about 10 per cent; and it took the average of four years E to reach the decision either way.
Certainly that is an inordinately very long time to reach a decision, taking into account the fact that the period of limitation is three years for torts. The graphic account of Mr M K B Wambali can also be F seen in his paper he presented at the Seminar to Commemorate 25 years of the Faculty of Law, held between 20th and 25th October 1986 at the University of DSM titled `The enforcement of the Bill of Rights against the Government'.
Others to document the oppression rendered by the requirement of the ministerial fiat is Dr Chris G Maina Peter a lecturer at the Faculty of Law of the University of DSM in his article Five Years of the Bill of Rights in Tanzania Drawing a Balance Sheet published in the African Journal of International and Comparative Law - 4 RADIC (1992) pages 131-167 at 156-157 where he states: H
`The most conspicuous and frustrating among the rights denied to the citizen is the right to sue the government. It seems as if the government has resolved to protect itself. This protectionist attitude of the government is codified through the Government Proceedings Act 1967. This strategic legislation insulates the government from all claims I in a feudalistic manner. According to this law, anybody
A wanting to sue the government has first to seek permission from the same government through the Attorney-General. To get such permission is a tussle which takes time. In some cases it has taken years to get the holy permit. This is not an accident, it has a meaning. The time factor is intended to wear our the claimant and force B him to settle the matter out of court with the government. If he insists on proceeding with the case, then time will have taken its toll and it is likely that some of the key witnesses will have died, been transferred or simply forgotten what transpired in relation to the issue being litigated. The legislation is quite irrational. The cruelty of this sadism C reaches the climax when the applicant himself dies while waiting for the Attorney-General's permission to enable him to pursue his rights through the courts of law. This happened in the case of Soarion Bruno.'
Others who have made similar adverse remarks against the Government Proceedings Act 1967 D include Prof Issa G Shivji in his article State and Constitutionalism in Africa: A New Democratic Perspective(1990) vol 18 of the International Journal of the Society of Law page 381 at 401.
And as I said earlier there are no safeguards and effective control against any gross abuses that they E may be committed by the Minister for Justice. The State Attorney Mr Ndunguru must have been kidding when he submitted that the law in question is in public interest. To the contrary it is the public who are being oppressed. Mr Ndunguru should respect the maxim, no research no right to speak. It is my finding that as the Government Proceedings Act 1967 has no safeguards and effective control F against gross abuses as amply documented above, it is not a lawful `law'. It is void and unconstitutional.
It is also my considered view that the Government Proceedings Act 1967 offends the doctrine of G proportionality. This principle of proportionality requires that the means employed by the government to implement matters in public interest should be no more than is reasonably necessary to achieve the legitimate aims. In other words, the government must show that the restriction imposed on a H basic human right is required by a compelling social need and that it is so framed as not to limit the right in question more than is necessary or proportionate to achieve a legitimate objective. The doctrine is discussed by the Court of Appeal of Cook Islands in the case of Clark v Karika (10) and by the Supreme Court of Canada in the case of The Queen v Big M Drug Mart Ltd (11). And Mr I Anthony Lester QC in his article mentioned above at
pages 1064-1065 quotes a number of cases decided by the Supreme Courts of many A Commonwealth countries which consider the principle of proportionality to be as well established to be part of the public law or administrative law. In the USA the principle of proportionality was recognised by the US Supreme Court in the case of Precunier v Martinez (12) at p 143. While the European Court of Human Rights has invoked that doctrine in outlawing laws going against basic B human rights in the case of Sunday Times Case (13) and the case of Silver Case (9). In England the doctrine of proportionality is discussed in Halsbury's Laws of England 4th ed vol 51 at para 2296 and see also the case of Johnson v Chief Constable of the RUC (14) at 151. In Tanzania the doctrine of C proportionality was expounded by the Tanzanian Court of Appeal in the DPP v Daudi Pete Case (6) wherein it is stated that the law being defended for being in public interest should not be too broadly drafted such that its provisions are capable of depriving personal liberty not only to persons who are considered to be dangerous, but even to persons who cannot be considered to be dangerous. They said the law should not be a rat-trap which catches both rats and humans without D distinction.
Now the Government Proceedings Act 1967 offends the doctrine of proportionality because it is so E broad such that it denies an effective and prompt remedy to all and sundry without distinction - even to those who have a clear and genuine grievance against the government. I see no compelling social need to have restriction to sue the government, whereby the rights of citizens are marginalised and F emasculated. The State Attorney Mr Ndunguru argued that the courts will be flooded with cases when the government is allowed to be sued without fiat; and also that the government will not be able to function smoothly if frivolous and vexatious cases are freely allowed in courts against the government. Such arguments are preposterous and without substance. Nearly all countries of the G Commonwealth have done away with the requirement of a ministerial fiat, and they don't face such problems as mentioned by the State Attorney. In fact in one part of Tanzania, that is in Zanzibar, the right to sue the Government of the United Republic without a ministerial fiat is recognised and no H problems mentioned by the State Attorney are encountered there. In his article in the Journal of the Judges and Magistrates Association of Tanzania (1989) vol I page 1, the Hon Mr Justice Ramadhani (then Chief Justice of Zanzibar) mentions three cases in which the Union Government has been I sued without the fiat namely: Himidi Mbaye v The Brigade Commander of
A Nyuki Brigade (15); Shabani Khamis v Samson Goa & Another (16) and Khalfan Abeid Hamad v The Director of Civil Aviation (17). In Zanzibar all that one has to do before suing the government is to give a month's notice to the government. That is a sufficient and reasonable restriction against suing the government. The legislation in Zanzibar is in line with the doctrine of proportionality as it B does not limit the right of access to the courts more than is necessary or proportionate to achieve a legitimate objective. The law in Tanzania mainland is based on the unjustifiable protectionist attitude or fear that the government may be involved in uncontrolled litigation, thus ending in serious losses of C revenue. But that argument cannot hold water when one considers the high capability of the government to distribute the losses suffered through some fiscal measures, such as taxation.
The courts of course will always recognise that the state enjoys a margin of appreciation in D conforming their law and practice with the basic human rights. But the government does not enjoy an unlimited margin of appreciation. Ultimately it is for the Court to assess whether the reasons given to justify an interference with the basic human right are relevant and sufficient. In the case in hand the E government has failed to establish on a balance of probabilities that the requirement of a ministerial fiat is for a given pressing social need and that the restriction is framed such that as not to limit the right protected more than is necessary. In short the government has failed to prove that the restriction on the right to have free access to the courts is proportionate and closely tailored to the F aim sought to be achieved.
There is also another dimension. In view of the fact that Tanzanians of Zanzibar can sue the Union government without a ministerial fiat, while their counterparts in mainland Tanzania cannot do that, a G case is made out to the effect that the Government Proceeding Act 1967 infringes article 13(1) of our Constitution. That article provides: `All persons are equal before the law and are entitled without any discrimination, to equal opportunity before and protection of the law.' Now the impugned law is discriminatory of the citizens of mainland Tanzania just because of their place of origin - see article H 13(5) of our Constitution which defines what discrimination means.
As the law now stands the Tanzanians of Zanzibar are more equal than the Tanzanians of the mainland. That is not a healthy situation.
I The practice of the requirement of a ministerial fiat before one
can sue the government, defeats the general spirit underlying the Government Proceedings Act A 1967. The statement of the objects and reasons of the Government Proceedings Bill of 1967 was said to be: `That in a modern democratic State, it is right that the government should be able to sue or be sued as if it were a private person of full capacity.' And that the Bill sought to reform the law B relating to civil proceedings in courts by or against the government, as the law hitherto in operation was thoroughly outdated - see Attorney-General Mr Mark Bomani in Hansard `Majadiliano ya Bunge 1967 - Mkutano ya Nane - 11 April to 18 April 1967 at 108'. In its Fundamental Objectives and C Directive Principles of State Policy the Constitution in article 9(1)(k) states that Tanzania is a democratic state. Then why did he government out of the blue in 1974 by Act 40 reintroduce the ministerial consent requirement when in 1967 it was stated to be undemocratic and outdated? Is D Tanzania not a democratic state now? And it is not axiomatic that the law in question is outdated? That law finds it root in ancient English Constitutional mythology about the divine nature of kingship - that the `King can do no wrong' and that `the King cannot be sued'. But that is an anachronism in a democratic state like Tanzania. Even in England itself the position changed since 1947 whereby a E citizen can sue the government as of right. And nearly all the Commonwealth countries have done away with the requirement of a ministerial fiat. Tanzania is an odd man out.
The requirement of a ministerial fiat militates against the principle of accountability and the often quoted principle of openness and transparency of the government. The Ontario Law Reform F Commission of Canada in its report headed Report on the Liability of the Crown, 1989 reported in the Commonwealth Law Bulletin vol 16 no 3 of July 1990 pages 855-859 said at 856. G
`The present law governing liability of the Crown, insofar as it still provides privileges and immunities not enjoyed by ordinary persons is inconsistent with popular conceptions of government: Crown immunities are particularly contrary to a deeply - held notion that the government and its officials ought to be subject to the same legal rules H as private individuals and should be accountable to injured citizen for its wrongful conduct. A key element of this concept is the fact that the application or ordinary principles of law to government is placed in the hands of the ordinary courts, who are independent of government and therefore capable of being relied upon to award an appropriate remedy to a person who has been injured by unlawful government action.' I
A At the end of the day, the Ontario Law Reform Commission recommended the abolition of the requirement of the ministerial fiat, as it was also found to be inconsistent with the Canadian Charter of Rights and Freedoms.
In Tanzania under one party democracy, the spurious justification for having a requirement of the B ministerial fiat, was espoused by some party fundamentalists (Wakereketwa) who nursed the idea that the government under the leadership of the CCN party which had a `clear and correct ideology' had a greater public interest to preserve and a monopoly of what is good for the country and C therefore cannot be let to be scandalized in courts by individuals with impunity. However that view cannot prevail now with the advent of multi-party democracy which was ushered in, in July 1992. In a bid to expand democracy the people in a multi-party democracy will continue bit by bit to wrench D away the mask of invincibility and unimpenetrability that the government sought to wear for many years under one party rule - see the debates in Parliament during the passing of the 9th Constitutional Amendment Act of 1992. Thus the vulnerability of the government to give way for more democratic institutions and norms has now been exposed.
E In the final analysis, I find that s 6 of the Government Proceedings Act 1967 as amended by Act 40 of 1974 is unconstitutional and so void. I so declare under s 5(1) of Act 16 of 1984 as well as article 64(5) of the Constitution. For sure by this step, the CCM government will rejoice because in the 1990 F Election Manifesto, the said CCM government pledged to get rid of all the problems that plague the people (kuwaondolea wananchi mambo yote yanayowakera). The requirement of a ministerial fiat to sue the government was one of those matters that has been plaguing the people. Now this tool of oppression which the Tanu government in 1967 said it was undemocratic and outdated is gone G forever, and it is now part of the legal folklore destined for the dustbin. The Judiciary as an organ of the government has played its noble part to get rid of a matter that has been plaguing the people for far too long. It is pertinent to remark here that the government in the past and in this case had H insisted to be joined as a co-defendant not as a philanthropist wishing to bail out their distressed civil servant but for their own ulterior motives. They have been using the requirement of a ministerial fiat not as a shield to protect their own legitimate interests but as a sword to frustrate genuine claims. In I this case I told the State Attorney that the government's interests will be properly safeguarded if they merely provided legal representation to the defen-
dant but they refused, and insisted to be joined as co-defendants. In the case of Rev Christopher A Mtikila v The Editor, Business Times and Mr Augustine Lyantonga Mrema (18) the government tried to use that play of using the law as a sword to frustrate the plaintiff's claims, but it was nipped in the bud by Samatta JK who held that the government need not be joined as a co-defendant. In this B respect Dr Chris Maina Peter in his article - 4 RADIC (1992) page 131 (supra) graphically illustrates the point raised at 157 thus:
`Practice indicates that even where a person in an attempt to avoid this requirement of getting government approval, decides to sue the government officer alone without joining the government, the government insists on being joined C as a respondent. Worse still, once the government is joined, then it invokes the requirements of the Government Proceedings Act 1974. Permission must be sought although the government has joined the proceedings at its own request. This is exactly what happened in the case of Patrick Maziku v G A Sebalili and Eight Others: Tabora High.' D
However in this case the play has boomeranged. The government has been hoisted by its own petard.
Be that as it may, in the event the preliminary objection raised by the Republic is dismissed. The suit E will proceed to trial as scheduled. Costs in the cause. Order accordingly.
G
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