The best prophet of the future is the past.”- Lord Byron. This article focuses on the history of Tanzania government contracting and its scope entails a brief survey of the pertinent Tanzanian laws on suing the government.
The main objective is to set the scene for the discussion in this ongoing 11-part article series on government contracting in the hopes of better policy and legislation in the future.
The English common law system, derived by Tanganyika (now one of two parts of Tanzania, a union of Tanganyika and Zanzibar formed on April 26, 1964) from its British colonial legacy, is the foundation of today’s Tanzanian system of law.
Under early common law, before the enactment of the Crown Proceedings Act 1947, the doctrine of sovereignty immunity comprised in the Latin maxim rex non potest peccare, which means, “the King can do no wrong”, protected the British Crown against civil liabilities.
The only avenue by which subjects could bring contractual and some property actions against the Crown was by way of a petition of right; this was particularly so after the Petitions of Right Act 1860 eased the process (see, Bradley, A.W. and Ewing, K.D. (2003). Constitutional and Administrative Law (13th ed.). London: Longman. pp.770-771).
Two decades after the Crown Proceedings Act 1947 allowed civil actions against the British Crown to be brought in the same way as against any other party, the Tanzanian Government enacted the Government Proceedings Act 1967 which was amended a decade shy of three years later, in 1974, following the introduction of the Government Proceedings (Amendment) Act 1974.
Since that time, the law has undergone further changes and, today, the Government Proceedings Act, Cap 5 [R.E. 2002] provides that civil proceedings may be instituted against the Tanzanian Government after the claimant has submitted a 90-days’ notice of his intention to sue the Government, stating the basis of the claim and sending a copy of the claim to the Attorney General—against whom all suits against the Government are required to be brought in the relevant High Court registry.
It is now clear that the maxim of the early common law that the “King can do no wrong” is not part and parcel of the modern common law and the Tanzanian system of law.
Indeed, in Mwalimu Paul John Muhozya v. The Attorney General, High Court of Tanzania, at Dar es Salaam, Civil Case No. 206 of 1993, the Hon. Samatta, JK (as he then was) stressed that “The notion, apparently harboured by some people in this country, that the President of the United Republic of Tanzania is above the law is subversive of the constitution and the laws. All Government leaders, including the President, are, like the humblest citizen, bound to comply with the laws of the country.
The maxim ‘The King can do no wrong’ has no place in our law even if the word ‘President is substituted for the word ‘King.’ ”
Thus, litigants and government contractors may sue the Tanzanian Government like any other private person in a court of law in contract, quasi-contract, detinue, and tort and in other proceedings.
However, when it comes to the mandatory 90-days’ notice requirement before instituting a suit against the Government, Hon. W.P. Dyansobera, J had this to say in Thomas Ngawaiya v. The Attorney General & 3 Others, High Court of Tanzania, at Dar es Salaam, Civil Case No. 177 of 2013: “I must admit that most often, the administration is unresponsive and shows no courtesy to the ninety days’ notice when presented to the Government and a copy served on the Attorney General.
This is unhealthy for the Government which is entrusted by its subjects but that in no way condones the non-compliance with the law.”
Along with other gallant efforts of President John Magufuli’s Government aimed at making Tanzania an investment-friendly country, there is a need to assure investors of the enforcement of their contractual rights against the State in Tanzania, including the execution of decrees and arbitral awards.
This is especially so in light of section 11 of the Natural Wealth and Resources (Permanent Sovereignty) Act, 2017 on prohibition of proceedings in foreign courts.
Paul Kibuuka is the managing partner of Isidora & Company Advocates. Email: firstname.lastname@example.org Twitter: @tzpaulkibuuka