How to Draft Originating Summons in Human Right cases in East Africa (Tanzania)

IN THE HIGH COURT OF TANZANIA
(MAIN REGISTRY)

AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NO. __ OF 2023

IN THE MATTER OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA 1977AS AMENDED FROM TIME TO TIME

AND

IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT ACT[CAP. 3 R.E. 2002]

AND

IN THE MATTER OF BASIC RIGHTS AND DUTIES ENFORCEMENT (PRACTICE AND PROCEDURE) RULES, 2014

AND

IN THE MATTER OF A PETITION TO CHALLENGE THE PROVISIONS OF CYBER CRIMES ACT NO. 14 OF 2015 AS BEING UNCOSTITUTIONAL

BETWEEN

YYYYYYYY…………………………………..…………….…… 1ST PETITIONER
XXXXXXXXXXX……………………………………………………… 2ND PETITIONER

VERSUS

THE ATTORNEY GENERAL…………………………………..……….RESPONDENT

ORIGINATING SUMMONS
(Made under Articles 30(3) of the Constitution of the United Republic of Tanzania, Sections 4 and 5 of the Basic Rights and Duties Enforcement Act, Cap 3 [R.E 2002] and Rule 4 of the Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014)

LET THE PARTIES CONCERNED, YYYYYYYYY … of Dar es Salaam and the Attorney General of Tanzania of P.O Box 9050 Dar es Salaam, appear before the Honorable Judge __________, sitting in Chambers on the , day of ____, 2015 at 9:00 O’clock in the forenoon or soon thereafter on the hearing of the petition on the part of the Petitioner, that this Honourable Court may be pleased to declare that;

The provisions of section 4, 5, 6, 7, 8, 9, 10, 11, 14, 19, 21, 22, 31, 32, 33, 34, 35, 36, 37, 38, 45(4), 47, 50 of the Cyber Crimes Act, No. 14 of 2015 are unconstitutional for offending the provisions of Article 13 (2), 13 (6) (a), 16, 17 (1), 18 (b), 21 (1) and (2) of the Constitution of the United Republic of Tanzania of 1977 as amended.

Each party to bare its own costs,

ON THE GROUNDS THAT;
The provisions of sections 4, 5, and 45 (4) of The Cyber Crimes Act restrict right to seek, receive and, or disseminate information as provided for under the Constitution of The United Republic of Tanzania of 1977 as amended.

The provisions of sections 6, 7, 8, 9, 10, 11, 14, 19, 21 and 22 of The Cyber Crimes Act contains undefined phrases which are likely to be subjected to subjective interpretation by law enforcers and thereby risking arbitrary arrests thus contravening the right to liberty as provided for under The Constitution of United Republic of Tanzania of 1977 as amended.

The provisions of sections 31, 32, 33, 34, 35 and 37 of The Cyber Crimes Act give powers to law enforcers to search and seize computer systems, data and information without court order thus can infringe right to privacy as provided for under the Constitution of United Republic of Tanzania.

The provisions of section 38 of The Cyber Crimes Act restrict appearance of a person against whom an application is made to defend himself before court of law, thus infringing the right to be heard as provided for under The Constitution of United Republic of Tanzania.

The provisions of section 47 (1) of The Cyber Crimes Act prohibit law enforces to exercise their powers as provided under the act thereby contravening the right to work as provided for under The Constitution of United Republic of Tanzania.

The provision of section 50 of The Cyber Crimes Act gives Director of Public Prosecution powers to compound offences and bars right to right to be heard and appeal before the court of law as provided for under The Constitution of United Republic of Tanzania.

SPECIFIC ARTICLES IN PART III OF CHAPTER ONE OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA 1977 AS AMENDED

The provisions of sections 4, 5, and 45 (4) of The Cyber Crimes Act of The Cyber Crimes Act restrict right to seek, receive and, or disseminate information hence contravene Article 18 (a) and (b) the Constitution of The United Republic of Tanzania of 1977 as amended.

The provisions of sections 6, 7, 8, 9, 10, 11, 14, 19, 21 and 22 of The Cyber Crimes Act contain undefined phrases which are likely to be subjected to subjective interpretation by law enforcers and thereby risking arbitrary arrests thus contravening the right to liberty as provided for under Article 17 of The Constitution of United Republic of Tanzania of 1977 as amended.

The provisions of sections 31, 32, 33, 34, 35 and 37 of The Cyber Crimes Act give powers to law enforcers to search and seize computer systems, data and information without court order thus can infringe right to privacy as provided for under Article 16 of The Constitution of United Republic of Tanzania.

The provisions of section 38 of The Cyber Crimes Act restrict appearance of a person against whom an application is made to defend himself before court of law, something which might infringe right to be heard as provided for under Article 13 (6) (a) of The Constitution of United Republic of Tanzania of 1977 as amended.

The provisions of section 47 (1) The Cyber Crimes Act prohibit law enforces to exercise their powers as provided under the act thereby contravening the right to work as provided for under Article 22 of The Constitution of United Republic of Tanzania of 1977 as amended.

The provision of section 50 The Cyber Crimes Act gives Director of Public Prosecution powers to compound offences and bars right to be heard and appeal before the court of law as provided for under Article 13 (6) (a) of The Constitution of United Republic of Tanzania.

PARTICULARS OF FACTS RELIED UPON;

That, on 14th August 2015 through Government Notice no. 328 of 2015, Ministry of Communication, Science and Technology of Tanzania announced the commencement date of The Cyber Crime Act, No. 20 of 2015, which was 1st September 2015.

That, the provisions of sections 4, 5, and 45 (4) of The Cyber Crimes Act of The Cyber Crimes Act are framed in a way that if strictly interpreted and implemented would restrict right to seek, receive and, or disseminate information the Constitution of The United Republic of Tanzania of 1977 as amended.

That, the provisions of sections 6, 7, 8, 9, 10, 11, 14, 19, 21 and 22 of The Cyber Crimes Act contain undefined phrases which are likely to be subjected to subjective interpretation by law enforcers and thereby risking arbitrary arrests thus contravening the right to liberty as provided for under Article 17 of The Constitution of United Republic of Tanzania of 1977 as amended.

That, the provisions of sections 31, 32, 33, 34, 35 and 37 of The Cyber Crimes Act give powers to law enforcers to search and seize computer systems, data and information without court order, something which might infringe right to privacy as provided for under The Constitution of United Republic of Tanzania.

That, the provisions of section 38 of The Cyber Crimes Act restrict appearance of a person against whom an application is made to defend himself before court of law, something which might infringe right to be heard as provided for under The Constitution of United Republic of Tanzania of 1977 as amended.

That, the provisions of section 47 (1) The Cyber Crimes Act prohibit law enforces to exercise their powers as provided under the act thereby infringing their right to work as provided for under the Constitution of United Republic of Tanzania of 1977 as amended.

That, the provisions of section 50 The Cyber Crimes Act gives Director of Public Prosecution powers to compound offences and bars right to be heard and appeal before the court of law as provided for under the Constitution of United Republic of Tanzania.

THIS ORIGINATING SUMMONS has been taken out on the grounds and reasons set-forth in a joint Affidavit of MAXENCE MELO and XXX which is annexed hereto and on any further grounds and reasons to be adduced at the hearing.

Given under my Hand and Seal of the Court this , day of ___, 2023.


                                                                                                   REGISTRAR

Presented for filing this , day of __________, 2023


                                                                                                     REGISTRY OFFICER

DRAWN AND FILED BY;
Shreiazetu.com and co advocates,
P.O BOX 2525,
DAR ES SALAAM

COPY TO BE SERVED UPON;
THE HON. ATTORNEY GENERAL,
ATTORNEY GENERAL’S CHAMBERS,
KIVUKONI FRONT,
P.O BOX 9050,
DAR ES SALAAM