Munuo Ng'uni v Judge Incharge High Court Arusha and AG.

THE LEGAL PROFESSION: ASSIGNMENT OF DOCK BRIEF; RIGHT OF HEARINGS INTERPRETATION OF THE CONSTITUTION; FEE PAYABLE TO ADVOCATE ASSIGNED TO DOCK BRIEF. NI. N Munuo Ng’uni v Judge in charge High Court and AG AT the High Court in Arusha March 17, 1998 (incidentally the case is not numbered) (unreported). Mapigano, DP. Mchome, L. B., and Rutakangwa J. J. Mapigano J. delivered the judgement of the court. The petitioner N. I. N. Munue Ng’uno who likes to call himself Lord Ng’uni, Supreme Defender of the Faith and Elect of God, is an advocate of the High Court of Tanganyika (Tanzania Mainland) of a fairly long standing. He is based in Arusha. On or about November, 1, 1993, he was assigned six briefs in terms of section 3 of Legal Aid (Criminal Proceedings) Act, 1969 (Act No.21 of 1969) as amended by Act No. 19 of 1992, and instructed to proceed to Babati where the High Court was due to hold a season. The petitioner was required to defend the accused persons who were facing murder charges. Under the said section 3 an accused person is entitled to free legal aid in the preparation and conduct of his defence, where it appears to the certifying authority that it is desirable in the interests of justice and that his means are insufficient to enable him to engage such services. The expression “certifying authority” is defined under section 2 as the Chief Justice or the Principal Judge or the Judge incharge of the district registry where the proceeding is conducted in relation to a proceeding before the High Court; and in case of proceeding before a district court or a court of resident magistrate, the Chief Justice. The petitioner refused to take those briefs and he did point blank. By a letter dated November 16, 1993, exhibit P3, the District Registrar at Arusha communicated to the petitioner the instruction of the Judge incharge. The first respondent in this case, that he should take briefs and the warning that if he did not do so an immediate disciplinary action would be taken against him. It is alleged by the respondents vide para 3 of their amended pleading, that the petitioner refused to receive the letter and that he did so arrogantly. The petitioner has denied the truth of that allegation and we leave the matter for later. It was not an idle warning. When the petitioner remained defiant, the judge carried it out. By a letter dated November 18, 1993 exhibit P1, the judge suspended him from practicing as an advocate pending a reference to the High Court. The judge stated that he had done so in the exercise of the power conferred upon him by section 22(1) and (2)(b) of the Advocates Ordinance, Cap. 341. In the scheme of that Ordinance, the Chief Justice, the High Court and the Advocates Committee as therein defined, have co-ordinate power to discipline advocates who behave improperly or commit offences. In relation to the High Court that power is given under section 22(1) and (2)(a). A judge of the High Court is given power under para (b) of that subsection to suspend an advocate from legal practice, temporarily, pending a reference to, or disallowance of such suspension by the High Court. [In digression we may observe that section 22 has been branded by Mr. Mohamed Ismail, a prominent member of the Bar, as “draconian” in a recent publication of the Law Society. But as just indicated, we are spared the task of adjudicating upon its constitutional validity in this case.] It is not surprising that the petitioner was aggrieved and extremely bitter. He came to this Court to ventilate his grievance and to ask redress. In his amended petition he asks the Court to issue several orders, including one for damage, under Articles 30(3) and (4) of the Constitution of the United Republic. We have identified and drawn up six issues on the pleading, and we have deemed it to start dealing with which is a factual one, namely, (1) It would be a material consideration that the assignment wasmade by the judge, given the provision of section 3 of Act 21/69 by which such exercise is the function of the Registrar, Deputy Registrar or District Registrar and not of a Judge incharge. It is submitted, and conceded by Mr. Songoro, learned Senior State Attorney, on behalf of the respondents, that it would be an arrogation of power on the part of the judge if the assignment was made by him, whereby the assignment would be flawed. The petitioner who bears the burden of proof is entirely relying upon the instructions and warning of the judge which are quoted by the District Registrar in exhibits P1 and P3. The instruction in exhibit P3 is in these terms: …..”I direct that he (petitioner) takes the briefs assigned to him and that refusal by him to take them will result in immediate disciplinary action against him under Cap. 341 of the Laws.” In exhibit P1 the judge stated thus: “I have suspended him (the petitioner) from practicing as an advocate, pending a reference to the High Court, for his refusal to comply with my direction to him to take dock – briefs for the Criminal Sessions at Babati,” The petitioner would have us find that these directions are a clear and conclusive proof of the judge having made the assignment. On the other hand, Mr. Songoro submits that there is nothing in those directions which establishes the petitioner’s assertion. He makes the substantial point that when those directions were issued the assignment had already been made. He points out, we think correctly, that the words “refusal to comply with my direction to him to take dock – briefs” in exhibit P3, i.e to take the briefs he had earlier refused to take. We have considered the matter carefully and we are at one with Mr. Songoro. When those instructions were issued by the judge the assignment had already been made and the petitioner had refused to take the briefs. That seems to us indisputable. We have come to the conclusion that on balance exhibits P1 and P3 do not furnish sufficient probative evidence that the assignment was actually made by the judge. The documents leave the matter in the realm of conjecture. We accordingly answer in the negative. (2) We will next turn to fourth issues, which is divided into five sub-issues. The first sub-issue is whether the petitioner refused to receive exhibit P3. As already mentioned, this is an allegation made by the respondent in the pleading but denied by the petitioner. It is also a factual issue and it has, therefore, to be resolved upon the evidence given. It is susceptible to a very easy and straightforward answer. For reasons unknown to us the respondents, to whom the onus of proof is cast, have opted not to give evidence. In the circumstances, as properly conceded by Mr. Songoro, we are compelled to find that the allegation has not been proved. We thus answer this sub-issue also in the negative. The second sub-issue is whether the first respondent caused the suspension of the petitioner from legal practice to circulate all over Tanzania Mainland. The relevant and short facts which appear to us to be material are these. Exhibit P1 which bear the signature of the District Registrar of the day was copied to the Chief Justice, the Principal State Attorney, Arusha, the Secretary of the Tanganyika Law Society, the Chairman of the Northern Lawyers Group. The Registrars of the Court of Appeal and High Court, the District Registrars of all zones in Tanzania, the Principal Resident Magistrate, Arusha, and the Senior Resident Magistrate incharge Moshi. The last two were requested by the District Registrar to pass on the information to the magistrates under their jurisdictions. The petitioner contends that the District Registrar did so on the instruction or at the instance of the first respondent, and that it was improper for the respondent to do so. The suspension was also given publicity in the print media. In its issue of January 13, 1994, the Majira newspaper ran a short article at page 5 about the suspension. The author of the article was one Abu Nasir who mentioned the first respondent as the source. The petitioner does not know the said Nasir. Nor does he know how the first respondent came to impart the information to that man. The petitioner nevertheless claims that it was first respondent “ to go out of his way and bring the attention of the general public to the suspension.” We regret to say that this complaint has no merits for two reasons. First like Mr. Songoro has submitted in his short address, there is hardly any firm evidence that the judge issued such instruction to the District Registrar and later had Abu Nasir informed about the matter. Secondly, we are satisfied upon reflection, that the complaint is, in the last analysis, a non-issue. It seems to us that there was nothing wrong or improper to have the suspension published in the manner it was done. We know of no law, and none has been cited to us by the petitioner, which requires that such event be kept out of the media. What we know is that Article 18(1) of our Constitution gives every person the right to seek, receive and impart information and ideas through any media. We now come to the third and fourth sub-issues and we are getting to what we consider to be the heart of this case. The petitioner has preferred to combine and argue these sub-issues together and we will follow suit. The question is whether a judge, exercising his power under section 22(2) (b) of the Advocate Ordinance, is under duty to give a hearing to the advocate before he makes a suspension order, and if the answer be “yes”, whether the petitioner was denied that right. The petitioner’s submission is of the following nature:- The right to a hearing is basic. It is a matter of natural justice and it is guaranteed by the Constitution under Article 13(6) (b) as well as by the Universal Declaration of Human Rights and the African Charter on Human and People Rights which Tanzania has ratified. He was denied that right. He should have been served with a show – cause notice, but he was not. Thereafter the judge should have given him a fair and adequate opportunity of making oral representations, but the judge did not do so. Exhibits P1 and P3 did not amount to a show – cause notice, let alone a hearing. So the judge suspended him form practicing his profession in violation of the Constitutional provision. The suspension was in consequence Mr. Songoro disagrees. He submits that the petitioner was accorded a hearing before he was suspended, and that is evidenced by exhibit P3. If we understand this correctly, he submits, in the alternative, that in making the suspension order the judge was not determining the rights or obligations of the petitioner, but was just initiating a disciplinary proceeding. The task of adjudicating upon an advocate’s rights and obligations and, if his misconduct is established, determining the appropriate penalty, is in different hands, namely, the High Court sitting in reference section 22 (2)(a), before which he has a right to hearing in accordance with the requirements of natural justice. When discharging his function under section 22 (2) (b), a judge exercised summary power and he is enjoined to suspend the advocate, and the suspension is not envisage to be a penalty. Learned counsel also expresses the view that three categories of suspension are discernible in section 22(2) (b), namely (a) temporary suspension; (b) suspension pending reference to the High Court; and (c) suspension pending disallowance of such suspension by the High Court. We may say at once that he is mistaken. At any rate, we have been unable to see the point or relevant of such classification. We cannot accept the argument that a judge exercising his power under that provision is enjoined to suspend the advocate. Section 22(2) (b) is phrases thus: “Any judge of the High Court shall have power to suspend any advocate in like manner (i.e. from practicing), temporarily, pending a reference to, or disallowance of such suspension by the High Court.” To us it is clear from the wording of that provision that a judge is vested with a discretion, and beyond question he has, when exercising that discretion, to bring to his task a temperate and judicious mind. Nor do we accept the argument such suspension would take away his means of earning a livelihood, and would also be an imputation on his character. We consider it perfectly fair to say that the petitioner was not given a hearing by the judge. We do not agree that exhibit P3 constitutes a show – cause notice. It was just a notice to the petitioner to comply with the instruction of the judge, and of the un-pleasant consequences that would follow if he disobeyed. We entirely agree that in suspending the petitioner the judge was initiating a disciplinary proceeding. But in the circumstances of this case that counts for little. In our considered view the petitioner was entitled to a hearing. We think that where a person’s livelihood is at issue or stake, and an adverse consequence would reflect upon his reputation or status, he is entitled to an opportunity to be heard. It is scarcely necessary to stress that the right to livelihood (or to work) is a constitution right, which in some jurisdictions is actually equated with the right to life. The right to a hearing is, ‘we understand, not an inflexible rule in terms of procedure. Though it requires fairness, it doe not require the application of fixed or technical procedural rules. So the hearing need not be oral. We are aware the over the years there have been two contending views as to whether a public officer proposing to suspend a subordinate from office, normally a purely administrative decision, is obliged to give him a hearing. These views have been stated by Sir William Wade and Dr. Christopher Forsyth in their book ADMINISTRATIVE LAW, 7th ed. at pages 560 – 561. The learned authors write: “One is that the employer need summary power to suspend without hearing or other formality as a holding operation, pending inquiries into suspicions or allegations. The other is that suspension is merely Expulsion pro tanto. Each is penal, and each deprives the member concerned of the enjoyment of his rights of membership or office.” The majority of the Judicial Committee of the Privy Council preferred the first view in the case of Furnell V Whangarei High Schools Board, (1973) AC 660. It was there held that a school teacher in New Zealand need not be given a hearing before being suspended without pay even when it was recognized that such suspension might involve hardship and a temporary slur on the teacher. The reason stated by the Committee was that the teacher had accepted this possibility in terms of his employment and that the disciplinary procedure as a whole was fair. It is a decision which has been described as controversial, and we think rightly so. For one thing, it is not easy to reconcile it with the current trend and tempo of human rights. In actual fact, as we will see shortly later herein, the Committee had a change of heart 21 years later. In the meantime a number of decisions were delivered by eminent judge in common law jurisdictions favouring the other view, and we refer to tow of them. The first is Birss V Secretary for Justice, (1984) 1 NZIR 513, in which the Court of Appeal of New Zealand rejected the distinction between suspension and expulsion, and held that natural justice required equally in each case. The second is Dixon V Commonwealth (1981) 55FLR 34, an Australian case, in which the decision was similar. Then came Ress V Crane, (1947) 2 WLR 476. This is the case in which the Committee made a departure from the opinion they had stated in the Furnell’s case. It is undoubtedly more paralleled with the present case. A summary of the decision appears in ADMINISTRATIVE LAW, Appendix 2 at page 1016, and we think the account bears reproducing here in extension: “The Privy Council upheld the quashing by the Court of Appeal of Trinidal and Tobago of the suspension of a High Court judge by the Chief Justice and of the decision of the Judicial and Legal Services Commission to represent to the President that the question of the judge’s removal from office ought to be investigated. The suspension was unlawful for neglect of the procedure required by the Constitution; the decision of the Commission violated the principles of natural justice since the judge was not previously notified or heard or given an opportunity to answer the complaints against him. He was also entitled to damages. Under the Constitution of Trinidad and Tobago the removal or suspension of a judge is a three – stage process: The Commission first represents to the President as above: and if the tribunal so recommends, the President must refer the case to the Judicial Committee of the Privy Council. At the second and third stages the judge will have notice of the complaints and the opportunity to answer them. But at the first stage also, Privy Council held, the Commission had a duty to act Fairly and had failed to do so. Relevant factors were the seriousness of the allegations and the suspicion and damage to reputation which a fair hearing might have obviated. The Privy Council (through the mouth of Lord Slynn ) recognized that although, according to the authorities, preliminary or initiating proceedings would often not require a hearing, this was not an absolute rule. Nor was the need for a hearing by the Commission due to the special position of a judge. The same would apply, mutatis mutandis, to other persons in comparable situations.” In our judgement we think that this is a good decision. We my only add that the severity of the sanction that the disciplinary authority can impose at the end of the day should be one of the factors to weigh with a public officer when he is considering the question whether he would give his subordinate such hearing. We repeat what we have more less said already: The matter was governed by the audi alterem partem rule, and the judge was under an implied duty to observe that rule. We are satisfied that there has been a violation of the petitioner’s right. Our answer to the two sub-issues is thus in the affirmative. 3. The last sub-issue is whether in making the impugned order the first respondent was a judge in his own cause. The petitioner underscores the point that the judge usurped the function of the District Registrar when he purported to assign the briefs to him, and that when he refused to give in, the judge proceeded to take action against him, thereby becoming prosecutor, witness and judge in a matter he was personally interested. We have already held that there is no trace of evidence to support allegation that the judge made the assignment of the briefs. The petitioner however submits, in the alternative, that the judge was so briskly and officiously involved in the matter that even if the assignment was actually made by the District Registrar, he could properly be considered to have been a judge in his own cause. He makes the argument that his refusal to take the briefs should, if necessary or needful, have been the subject of reference to the Tanganyika Law Society or to another judge or to the Registrar of the Court of Appeal. He conclude by asking us to operate the nemo judex in re sua principle and declare the suspension a nullity. In his counter – submission Mr. Songoro contends that the judge did not decide any matter; that the suspension order “did not contain any verdict or finding or penalty,” and that the order was just meant to initiate disciplinary proceeding before the High Court, where the petitioner’s final fate would have been determined. We have rejected the proposition that a suspension is not a penalty. We respectfully agree with J. R. Lucas who says in his book titled ON JUSTICE that the nemo judex in re sua principle does not extend to every decision – making. Its traditional locus in legal adjudication where one party’s rights are set against the other’s and one can prevail only at the expense of the other. We also take his view that an employer, deciding whether to dismiss or suspend an employee, ought in Justice to consider what justification or excuse or mitigation the employee can bring forward in his deence, but he is not debarred from deciding the case on the ground of having an interest in the success of the business, just like a judge who decides whether to commit a recalcitrant party for contempt of court. We are therefore unable to agree, even granting that the judge was actively involved in the matter, that the making of the order was an occasion which obliged the judge to comply with the nemo judex re sua principle. The only error, a grave one, is that he denied the petitioner a hearing. 4. We turn to the first issue: whether section 3 and 4 (2) of Act 21/69 are ultra vires Article 23 (2) of the Constitution; Article 14 (3) or the Universal Declaration of Human Rights; and Article 7 (1) (c) of the African Charter on Human and Peoples Rights. It seems to us that the Petitioner actually intends to invoke Article 23 (1) of the Universal Declaration, of which our Constitution’s Article 23 (1) is a replica, and Article 15 of the African Charter. It is perceivable from the pleadings and the submission we have been addressed that this issue comprises two sub issues, relating, respectively, to the assignment or the briefs under section 3 and the fee prescribed under section 4, as well as the Constitutional validity of the two sections. As regards section 3, the petitioner urges the point that the legal services rendered thereunder are compulsory in nature, a thing forbidden under Article 25 (2) of the Constitution. It is declared under that provision that there shall be no forced labour in the United Republic. Accordingly, the petitioner invites us to hold that the action offends the Constitution and to declare so, even when his pleading is silent on such prayer. Responding, Mr. Songoro submits that such services falls squarely within the ambit of Article 25 (3) (d) (I), thereby conceding, if implicitly, that the services are envisaged to be compulsory. By that provision, labour or service which forms part of normal social service or other civic obligations for the well – being of the society, are not deemed to be forced or compulsory labour. In his rejoinder the petitioner meets that argument with the submission that the makers of the Constitution had in mind the kind of services enumerated under section 121 of the Employment Ordinance, Cap. 366 that is, things like communal farming and construction of primary schools, for which members of a community are sometimes mobilized. As regards section 4, the petitioner vigorously contends that the fee payable to an advocate under subsection (2) is so inadequate as to constitute an infringement of the right to a just and favourable remuneration given to every person under Article 23 (2). He therefore calls upon us to declare that subsection Unconstitutional, which is not in complete Harmony with the prayer he makes at the end of his pleading. He draws our attention to what the Court of Appeal remarked in the post – cript to its judgment in the case of the Attorney General V W. K. Butambala, Cr, App. No. 37/91 (unreported), to which we will recur later. Mr. Songoro purports to draw a distinction between the remuneration referred to in section 4 and the remuneration envisage in Article 23 (2), to with, that one is statutory in nature and the other contractual. He goes on to submit that vis – a vis an advocate legal aid is also free. Butembala’s case is also sauce for the goose: Mr. Songoro cited another observation made by that Court in the same judgement at page 10. He then calls our attention to section 5 of the Act, which provides for reimbursement of incidental expenses incurred by the advocate in relation to such proceedings, but we need hardly say that that section is totally irrelevant. We proceed to consider those issues. But before we do so we desire to state how we have approached the matters and the whole case generally. We feel permitted to call in aid comparative case law form foreign courts and international Bills of Rights. That is precisely the path those eminent jurists who attended the Judicial Colloquim at Bangalore in India in 1988 have exhorted us to tread, in the famous statement they issued known as the Bangalore Principles. These Principles have been confirmed, endorsed and re-affirmed in subsequent colloquia at Harare [1989], Banjui [1990], Abuja (1991), Baliol [1992] and Bloemfontein [1993]. Some of these Colloquia were attended by some justices of our Court of Appeal. As correctly observed in the Bangalore Principles, there is at the present time plenty of judicial decision and an impressive corpus of international and national jurisprudence in the Commonwealth concerning the interpretation and application of human rights and freedoms, which is of practical value to judges and lawyers generally. It seems that there is presently a consensus among common law judges on the on the following cannons of interpretation, among others. The first principle is that a Constitution should receive a broad and purposive construction: See, for instance, Mtikila v A. g. [1996] 1 CHRLD 11, decision of the High Court of Tanzania at Dodoma, A. G. v Momodou Jobe, [1984] AC 689 (PC) at 700, and A. G. v Whiteman, [1991] 2 WLR 1200 at 1204. The second is that a Constitutional is to be given a construction which infuses fundamental rights provisions with life: See, for instance, the Nigerian Case at Agbakoba v State Security Services & Another, [1994] 6 NWLP 475; and the decision of the Court of Appeal of Trinidal and Tobago in Boodram v A. G. and Another, [1996] 1 CHRLD 58. The third principle is that restrictions to fundamental rights are to be strictly construct: See, for instance Pumbun v A. G. [1993] 2 LRC 317 at 323, a decision of the Court of Appeal of Tanzania; and Rattigan and Others V Chief Immigration Officer and others, [1994] 1 LRC 343, a decision of the Supreme Court of Zimbabwe. As indicated, we have had recourse to those Principles in this case. Mr. Songoro has truly said that in a constitutional petition, like the present one, the petitioner bears the burden of proof. It however needs to be qualified. It is now settled in Tanzania that once it is shown that a basic right has been infringed or is about to be infringed, then the onus shifts to the opposite party to show that the infringement was authorised in all essential respects; See the judgement of the Court of Appeal in A. G. v Lessioni Ndeinai and others, [1980] TLR 214 at 239. The standard of proof is the Civil Standard. The burden is discharged by proof upon the balance of probabilities. We hold that there is nothing basically wrong with section 3 of the Act, though it may be imprudent to dismiss outright the argument that is does not provides for adequate safeguards against arbitrary decisions. We are satisfied that it is not within the intendment of that provision that the assignment of such briefs to an advocate be arbitrary. The section is couched in the following terms:- “Where in any proceeding (as defined under section 2) it appears to the certifying authority that it is desirable, in the interests of justice, that an accused should have Legal aid in the preparation and conduct of his defence or appeal, as the case may be, and that his means are insufficient to enable him to obtain such aid, the certifying authority may certify that the accused ought to have such legal aid and upon such certificate being issued the Registrar (as defined under section 2) shall, where it is practicable so do, assign to the accused an advocate for the purpose of the preparation and conduct of his case or appeal, as the case may be.” We consider it significant that the Registrar can only assigned an advocate “where it is practicable so to do.” We cannot doubt that these words are not otiese or a mere padding. We think they imply that some consultation be had with the advocate or his direct representative so that the Registrar may satisfy himself, inter alia, on whether the services to be rendered by the advocate will not lay too heavy a burden upon him or adversely affect his practice and livelihood. The Oxford Advanced Learner’s Dictionary and the Encyclopedia World Dictionary (1971) attach the following meaning to the world “practicable”: that which is capable of being put into practice, done or effected, especially with the available means or with reason or prudence.” So, if the Registrar purports to exact services from an advocate and to do so without examining his circumstances, the fault is not in the law but in the man. We so hold, and it is just as well that in his pleading the petitioner has not asked us to do anything to section 3. We turn to section 4. The maximum fee payable under that section is Shs. 500/= n respect of each proceeding, or in respect of each accused person where the certifying authority directs that accused persons jointly tried should be separately represented. And it would appear that a fee which is in excess of shs. 300/= is reserved for complex and long cases. In the post-cript in the Butambala’s case, to which we are referred, the Court of Appeal observed, obiter, that the fee “may be grossly inadequate and out of date” and that “something positive must be done, unless the public philosophy is that the services advocates render under the law are intended to be skin to the classical dock briefs of some jurisdictions”. That was said back in June, 1991. In the trial judgement of Mr. Justice Mwalusanya, now retried, the judge had described the fees as “outrageously paltry.” It is true that at page 10 of the judgement of the Court of Appeal in that case the Court happened to state that the effect of that decision was that section 4 was still “good law and in the books”. But that statement has to be read contextually. There should be no doubt that the Court said so after it had voided the trial decision in which Mwalusanya, J. had held that the section should be modified so that it comes into conformity with the provisions of the Bill of Right. The Court of Appeal voided the trial decision on the ground that Mwalusany, J. had virtually assumed the roles of both complaint and judge, just like the petitioner in this case is saying about the first respondent. The court did not, therefore, consider, let alone determine, the constitutional validity of the section. In truth it must be stated that the remuneration’s prescribed under the section are incredibly inadequate. This is echoed in the report of the Legal Task I which the fees are described as “very low indeed.” It is strongly recommended in that report that fees be raised. What one can say is that a sum of shs 500/= was probably a handsome remuneration in 1969. But circumstances have since changed and judicial notice has to be taken of the fall of the shilling’s value. That amount cannot now buy even a pair of plastic slippers. The distinction urge by Mr. Songoro between the section 4 remuneration contemplated in Article 23 (2) sound odd to us. We have to confess that in relation to fair remuneration the distinction between contractual and statutory remunerations actually escapes us. We have considered the argument that legal aid is free to both the accused person and the advocate. It is impossible, as a matter of construction, to hold so. Section 3 does not say so; and section 4 says in clear language that an advocate is to be remunerated for his services, and we feel bound to say that means he is to receive a just one favourable remuneration, according to the quantity and quality of the work he has done. We are satisfied that section 4(2) denies him such remuneration and, therefore, infringes his basic right, much as we may take the view that the object of the Act is laudable, and even though we are cognizant of the financial constraints Tanzania is experiencing. It is not the respondents’ pleading or contention that Article 30 (2) the claw – back provisions, is applicable to the section. Silence at a judicial proceeding sometimes counts for something. Here the effect of silence is magnified by the rule that onus is cast on the respondents to satisfy the court that section 4 is saved by the sub-Article. Such being the case with the two sections, we now have to consider collateral issues. The ever meant is made in para 16 of the petition that “the second respondent was negligent not making sure that Act 21/69 was mended in time.” And we consider that the word negligent is not meant to bear its technical sense. It is the subject – matter of the second issue. The petitioner points out that the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984, No. 16/84, gave the Government a three – year’s grace within which to repeal or to amend all the laws which were in conflict with the provisions of the Constitution. He then makes the argument that the failure on the part of the second respondent to ask Parliament to effect such amendments to Act 21/69 to-date constitute negligence. Mr. Songoro counters and claims that there is nothing in Act 16/84 which imposed such duty on the second respondent. He also submits, citing Article 98 of the Constitution, that the power to legislate is vested in Parliament, though he concedes that it is the Executive which normally moves parliament to do so. It is beyond question that Parliament has the power and duty to legislate, but the question which needs to be answered is whether the Attorney General has a role to play in the legislative process. The answer must be an unequivocal “yes”. We do understand, and we think it is common knowledge, that it is a legitimate province and duty of the Executive, and thus the Attorney General, to influence legislation and propose repeals and amendments of the laws to Parliament. That is what Article 59(3) strongly indicates. However, that is not to say that demanding or agitating for legal reform is the exclusive preserve of the Executive. Any citizen, let alone a legal practitioner, is not prevented from doing so. We are amazed to hear Mr. Songoro citing Article 98. That Article provides for the procedure for the exercise of legislative power by parliament. It is totally irrelevant to the matter at hand. From his standpoint Mr. Songoro should rather have relied on Articles 63 (3) (a) and 64 (1). Act 16/84, supra, provides, under section 5 (2), as follows:- “Notwithstanding the amendment of the Constitution and, in particular, the justifiability of the provisions relating to basic rights, freedom and duties, no existing law or any provisions in any existing law may, until after three years from the date of the commencement of the Act, be construed by any court I the united Republic as being unconstitutional or otherwise inconsistent with any provision of the Constitution.” The objective was to afford the Government sufficient time to carry out the exercise of repealing and amending the laws or those provisions of the laws which were ultra vires the constitutional provisions. It is also relevant to observe that Article 15 of the African Charter on Human and People Rights, which came into force on October 21, 1986, and which Tanzania has ratified, is in pari material with our Article 23 (2). By Article 1 of the Charter, Tanzania has undertaken to adopt legislative or other measures to give effect to it. We are fully aware that there are other International Instruments, ratified by Tanzania, which comprise similar Articles. In actual fact a number of repeals and amendments of the law have been made since the commencement of Act 16/84. But nothing has been done to the impugned provisions in order to bring Act 21/69 into conformity with the basic rights provision of the Constitution. There being no evidence that he Attorney General has taken any steps in that direction, the reasonable inference is that he has been remiss in his duty and a charge of neglect, not negligence, has thus to stick. We come to the fifth issue: Whether the petitioner’s reputation has been injured by the wrongful acts and omissions of the respondents. In relation to the first respondent, we take it to have reference to his failure to give the petitioner a hearing and to his decision to suspend the petitioner from legal practice; and in relation to the second respondent we understand it to have reference to his failure to have section 4 (2) of Act 21/69 amended appropriately. The petitioner’s evidence shows that he is married with children. He had been an advocate for 16 years. He headed or led an impressive number of NGOs. He was the president of the Pragmatic Democratic Alliance, a political party; founding Chancellor of the Private University of Tanzanite and the Lord Ng’uni Academy; Chairman of the founding Committee of Union of All Bantu Peoples of Africa; founding Chairman of Chamajali East Africa; president of the Association of East African Citizens for the Renewal and Sustenance of the East African Community, a pressure group: Chairman – general of the worldwide organization whose object is to watch over the activities of the united Nations Organization; member of the Community Leader of the World; and supreme defender of Bantuism in the world, a spiritual organization and it is in connection with this body that he has taken for himself the title “Elect of God.” He says that the suspension has done a severe injury to his reputation. He has lost clients, good will, friends and followers. It has also denied his financial muscle to register some of the NGOs. Not only that. It has lowered him in the estimation of his family. We have come to the conclusion that this complaint has substance. It is certainly and infliction of great harm on the reputation of an advocate to call him undisciplined, as it was done in the Majira article. Lest we are misunderstood, we make it absolutely clear that we are not departing from our finding that upon the evidence it cannot be held that the first respondent was behind the publicity given to the suspension order. It seems to us that the suspension was bound to be known by members of the public, including the petitioners family even if it had not been published in Majira. Mr. Songoro contends that there is no corroborative evidence that the petitioner has suffered such injuries, probably forgetting that a court is entitled to believe the word of a complainant and to apply common sense. We now come to the sixth and last issue, which concerns the reliefs which are sought in the petition. There are three substantive reliefs. The first is a declaration that Act 21/69 is ultra vires the Constitution, which does not correspond with the petitioner’s submission; the second is s declaration that the suspension is null and void, and the third is an award of damages. We have that section 4(2) of Act 21/69 offends the provision of Article 23 (2) of the Constitution. This leads us to consider the provision of section 13 (2) (a) of the Basic Rights and Duties Enforcement Act, 1994, Act 33/94. Read together with Article 30 (5) of the Constitution, the provision requires us, if we deem it fit and the interests of society so demand, to refrain from declaring section 4(2) Unconstitutional, but instead, to allow Parliament to set it right. It should be observed that Mr. Songoro does not urge us to do so. Subsection (5) of Article 30 just mentioned was inset in the Bill of Rights after the enactment of Act 33/94, and it would appear that the idea was to legitimatize section 13 (2) (a). Section 13 (2) is an extremely strange and curious provision, to put it mildly. It is certainly pregnant with problem, some of which are fundamental. Commenting on the provisions, Dr. Wambali of the University of Dar Es Salaam, and an active member of the Bar, that we are not departing from our finding that upon the evidence it cannot be held that the first respondent was behind the publicity given to the suspension order. It seems to us that the suspension was bound to be known by members of the public, including the petitioner’s family even if it had not been published in the Majira. Mr. Songoro contents that there is no corroborative evidence that the petitioner has suffered such injuries, probably forgetting that a court is entitled to believe the word of a complainant and to apply common sense. We now come to the sixth and last issue, which concerns the reliefs which are sought in the petition. There are three substantive reliefs. The first is a declaration that Act 21/69 is ultra vires the Constitution, which does not correspond with the petitioner’s submission; the second is a declaration that the suspension is null and void, and the third is an award of damages. It is perfectly arguable, we think, that in proposing the legislation of that provision the Executive must have been viewing the basic rights provisions and the Judiciary which is charged with the task of enforcing them with jaundiced eye. We consider that provision as an absurdity. It is impossible for the Court to apply it with any sense of judicial cendour. We have, therefore, to invoke the principle of harmonization, like the learned judge did in the Mtikila’s case. We also have to invoke the principle that fundamental rights provisions should be construed as to make them meaningful and effective, like it was done by the Supreme Court of Zimbabwe in Salem v Chief immigration Officer and Another, [1994] 1 LRC 343. With that we must proceed to declare that section 4 (2), and Not the whole Act, is unconstitutional, and to nullify the same to the extent that it provides for unjust and unfavourable remuneration to the advocates who render services under the Act. We so do. Secondly, the petitioner, as we have seen, is asking for a declaration that the order for his suspension from practice is null and void. On the basis of our findings on the third and fourth sub-issues of the forth issue, we have to grant this prayer, and, accordingly, we declare the suspension a nullity. Monetary compensation is sought for loss of income and injury to reputation, and the petitioner wants the quantum assessed at one hundred million shillings. He suggests that damages are awardable in a constitutional petition. He also says, in effect, that it is inconvenient for him to address this claim through another procedure. Mr. Songoro has not contested these suggestions. Article 30 (3) of our Constitution, to which the petitioner cites in support, provides as follows:- “Where any person allege that any provisions of this Part of this Chapter ]The Bill of Rights] or any law involving a basic right or duty has been, is being or is likely to be contravened in relation to him in any part of the united Republic, he may, without prejudice to any other action or remedy lawfully available to him in respect of the same matter, institute proceedings for relief in the High Court.” Act 33/94 contains a similar provision. We are satisfied that that provision is wide enough and admits of the construction attached to it by the petitioner. In legal parlance “relief” or “remedy” includes damages. What’s more, it has been held in other common law jurisdictions with similar provisions that damages are available to a person for breach of his constitutional rights, for instance in Benby v Commissioner of Police [1996] 1 CHRD 37 High Court of Tridad and Tobago; Concord Press of Nigeria Ltd v A. G. and Others [1996] 1 CHRLD 47 High Court, Nigeria, at Lagos: National Consultative Council v A. G. [1996] 1 CHRLD 91 High Court of Malawi; and Simpson and Another v A. G. [1994] 3 NZLR 667; [1994] 3 LRC202. In Simpson case the Court of Appeal of New Zealand held, inter alia, that the ordinary range of remedies are available for enforcement and protection of the rights and freedom, as rights and freedoms are affirmed by the Bill of Rights as part of the fabric of that country’s law; and that it does not matter that there is a lack of express remedies provision in the constitution because, where necessary, the court will develop appropriate remedies to ensure the enforcement of those rights and freedoms. The Court went on to observe that it is appropriate to read a remedy of monetary compensation into the Bill of Rights as this will often be the only effective remedy in non–criminal cases, which do not involve the exclusion of evidence; and that a mere declaration that the complainant’s rights have been infringed would be worthless. We consider it also pertinent to point out that the universal Declaration of Human Rights, vide Article 8, and the International Covenant on Civil and Political Rights, vide Article 2 (3), provide that everyone has the right to a grant of effective remedy by the competent national tribunals for violating the fundamental rights granted him by the constitutional or by law. There is one further matter to be decided. As stated, the petitioner’s claim includes one for loss of income, which is a species of special damages. Now, as a rule, which applies to all kinds of legal actions, such damages must be expressly pleased, which the petitioner has not done. In digression again, we may observe that his pleading as a whole is some what a perfunctory piece of work and inelegant. The omission to plead the damages specifically is, however, not fatal. The rule has been judicially evolved, and we consider it a sensible one, that a court should take a liberal approach to rules of practice and procedure where basic rights and freedoms are invoked, so as to give to the complainant a full measure of his rights: See Jaundoo v A. g., 197 AC 1972 at 983: and Rev. Longwe and others v A. G. and Another, Msc. City. App. No. 11/93 of the Malawi High Court (unreported). The rationale is that since the court is a guardian of the Constitution, it is duty bound to ensure that the rights guaranteed by the Constitution are effectively enforced, and that to decline to examine the merits of a petition on the basis of a procedural technicality would be an abrogation of that duty. We wholly subscribe to that view. Upon the petitioner’s evidence that his monthly income from practice was shs. 300,000/= on the average, which we consider modest and acceptable, and considering that his suspension has run for 50 months, we award him a sum of fifteen million shillings (15,000,000/=) in special damages. As regards general damages for injury to reputation, we consider a sum of five million shillings as a fair and just compensation. Interest on the principal amount shall run at the court rate, i.e. 10% annum from the date of the decree. He is also granted the costs. Since in principle the state is directly liable for any contravention of a constitutional right by its servant, it is to bear the burden of meeting the decree: See Payet v A. G. 1996 2 CHRLD 99. We so Order. Sgd: D. P. MAPIGANO JUDGE Sgd: L. B. MCHOME JUDGE Sgd: E. M. K. RUTAKANGWA JUDGE March 17, 1998. Delivered by the presence of Mr. Munuo, Petitioner in person and Mr. Songoro, learned Senior State Attorney, for the Respondents, this 17th day of March, 1998 at Arusha. I hereby certify this to be a true copy of the original Sgd: DISTRICT REGISTRAR ARUSHA