Background of the Case.
The Case was between Tito Magoti (as the “Petitioner”) and the Attorney General (as the “Respondent”), whereby an application was filed through a petition to the High Court of Tanzania, Main Registry, in Dar es Salaam (the “High Court”). The Petitioner filed the application in his capacity as a citizen of the United Republic of Tanzania challenging the legality of the impugned provisions of the Act, namely, sections 8(1), (2) and (3), 11(1), 14(5), 19, 20, 22(3), 23(3)(c), (d) and (e), 25(2)(e) and (f), 26, 30, 33(2) and 34, while the Respondent was involved as the advocate of the Government in accordance with Article 59 of the Constitution of the United Republic of Tanzania (as amended) (the “Constitution”). The validity of the petition was challenged by the Respondent because the Petitioner was not directly affected by the impugned provisions. However, that preliminary matter was dismissed by the High Court based on ground that every citizen has the right to protect the Constitution and all other laws as provided for in Article 26(2).
The Petitioner claimed that the impugned provisions violate Article 12(1) and (2), 13(1), (2) and (6)(a), 16(1), 21(2) and 29(1) of the Constitution. Generally, the Petitioner’s claims were centered on the premise that the structure and wording of the impugned provisions violated basic rights of individuals.
The High Court deliberated the arguments from both parties and concluded that all the provisions of the Act are constitutional save for section 22(3) which reads as follows: “A data controller shall not collect personal data by unlawful means” and section 23(3)(c) and (e) which state that “A data controller is not obliged to comply with subsection (1) (which states that “Subject to subsection (3), a data controller shall collect personal data directly from the data subject concerned.”) where- (a) the personal data is publicly available; (b) the data subject concerned authorizes the collection of the personal data from a third party; (c) compliance is not reasonably practicable in the circumstances of the particular case; (d) non-compliance is necessary for compliance with other written laws; or (e) compliance would prejudice the lawful purpose of the collection.”
The High Court declared that section 23(3) to be unconstitutional on the grounds that it lacks clarity thus being wide and vague. The High Court explained that the provision ought to have been defined simply because it creates an offence, hence requiring further clarification. The lack of clarity in respect of this provision makes it difficult for the law to guide the behaviours of individuals.
Additionally, the High Court also declared section 23(3)(c) and (e) of the Act to be unconstitutional. The decision was derived from the basis of the provisions being vague, ambiguous and unclear leading to legal uncertainty. The High Court further explained that, section 23(3)(c) of the Act does not disclose the circumstance where compliance is not necessary, hence leaving it to speculation. The High Court further held that section 23(3)(e) of the Act lacked examples of situations in which a data controller adhering to the legislation would undermine the legitimate goal of the data collection. Thus, making it also unclear and open to speculations and abuse. Conclusively, the impugned sections are required to be amended with a view of providing certainty as to what acts or omission shall be regarded as unlawful.
The High Court ordered the Respondent to make the necessary amendments to the above-mentioned provisions. The High Court further stated that the provisions will be struck out from the Act if the Respondent fails to amend the unconstitutional provisions within a year from the date of the judgement.
On the other part, the Judgment did not elaborate if the impugned sections are to be inoperable until they are amended or otherwise. In addition, there is no clear history of the Parliament of Tanzania making amendments to provisions in legislation that the High Court has declared unconstitutional. However, in most instances, cases that center on provisions of Acts of Parliament which have been declared unconstitutional, the decision of the High Court prevails.
However, when the decision of the High Court is challenged in the Court of Appeal of Tanzania and the impugned provision are found to be constitutional, then the decision of the Court of Appeal of Tanzania will prevail instead of the decision made by the High Court.
Imogen E. Homanga – Legal Intern
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