Judicial Activism

Judicial Activism

Judicial activism is not an entirely new concept in Tanzania. Before independence, up to post independence in 1964, there were no indigent members of the bench. The first African judge was Augustino Said, who was nominated in 1964 and became the first Chief Justice in 1971. The majority of judges since then were from the commonwealth.

Tanzania is the only country in the commonwealth that refused to incorporate the Bill of Rights during independence negotiations. The justification given at the time, was that Tanzania was a dynamic society that wanted to develop. Hence, priority was placed on economic development and national cohesion. Moreover, there was apprehension that the Bill of Rights would be used as a weapon to declare government decisions as unconstitutional.

Judicial Activism is not an entirely new concept in Tanzania. The roots of Judicial Activism in Tanzania can be traced back to 1968 when in the case of Ndewawiosia Ndeamtzo v Immanual s/o Malasi the then Chief Justice of Tanzania ruled that girl children had equal rights as boys in inheriting land.

 

Early Proponents of Judicial Activism in Tanzania

1. Chief Justice Francis Nyalali

Chief Justice Francis Lucas Nyalali experienced one of the longest tenures in Tanzanian judicial history. His tenure was marked with a lot of judicial activism since the bench was now coming of age as more Tanzanians joined it. The Chief Justice made significant contributions to Judicial Activism as his ruling in the case of Martha Michael Wejja v Hon Attorney General and Three Others where he made sure that all 18 points were officially read in court. Chief Justice Nyalali remains an icon of judicial activism for his role in ensuring the independence of the judiciary was at all times safeguarded.

2. Honorable Justice Edward Mweisumo

Justice Mweisumo was part of the Law Reform Commission, and also ventured into the wilderness of politics and government office. He played a major role towards upholding the law of the land in Tanzania. Justice Mweisumo’s decisions conveyed an admirable sense of fearlessness. Justice Mweisumo constantly made decisions that were against the interests of the ruling party and the government in the spirit of upholding the law.

3. Honorable Justice Nassor Mnzava

Justice Mnzava contribution towards the promotion of judicial activism in Tanzania is depicted in his fight against the inequities of the Ujamaa system such as in the Laiton Kigala v Mussa Bariti where a decision was made against the chairpersons in different Ujamaa villages regarding compensation for villagers. His fearless spirit was also portrayed in the case of Happy George Washington Maeda v Regional Prisons Officer where he declared that Tanzania is not a banana republic where rulers make judgments.

4. Honorable Justice Lugakingira

Justice Lugakingira’s tenure was characterized by bold judicial pronouncements on matters pertaining to the protection of the environment as well as human rights. His judicial prowess was also evidenced in the case of Athuman Ally Maumba v The United Republic of Tanzania which concerned the rights of children where Lugakingira J sentenced the appellant for 26 years in prison and was quoted as follows “The appellant is a criminal pervert who engaged in bizarre relay of sexual assaults upon indigent youngsters, he has to be removed from the civilized society so that children may get the chance to grow up in dignity and with hopes for the future.”

5. Honorable Justice James Mwalusanya

Justice Mwalusanya is celebrated as a beacon and epitome of judicial activism in Tanzania. He consciously decided cases to ensure fairness and justice within the law. He made historical judgments that left a mark on the judicial sands of Tanzania. Mwalusanya’s most famous judicial contributions which is pronounced in the case of Republic v Mbushuu , a case where he declared the death penalty as unconstitutional.