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1969, or which has been entrusted to that person in confidence by any person holding office, or he had access to office from or which he has obtained or to which that person had access owing to the position or office held bv him or as a person who is or was party to a contract with the Government." Section 11. "The Provisions of this Act shall have effect notwithstanding anything inconsistent with this Act contained in any enactment other than this Act or in any instrument having effect by virtue of anv enactment other than this Act." Section 30(1) The Minister may, for the purposes of the prevention or detection of offences of terrorism or for the purposes of prosecution of offenders under this Act, give such directions as may appear to him to be necessary to: fa) Communication service providers generally; ('^Communication service providers of a specified description: (c) Anv particular communication service provider". Section 31(1) Subject to subsection (2), a police officer may, for the purpose of obtaining evidence of the commission of an offence under this Act, apply, ex parte, to the Court, for an interception of communications order. (2) A police officer may make an application under subsection (1) only with the prior written consent of the Attorney General. (3) A Court to whom an application is made under subsection (1), may make an order - requiring a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted, or about to be received or transmitted by that communication service provider: authorizing the police officer to enter anv premises and to install on such premises, any device for the interception and retention of a specified communications of a specified description and to remove and retain such device. if the Court is satisfied that the written consent of the Attorney General has been obtained as required bv subsection (2) and that there are reasonable grounds to believe that material information relating to (i) The commission of an offence under this Act, or (ii) the whereabouts of the person suspected bv the police officer to have committed the offence, is contained in that communication or communications of that description". Page 20 of 37

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Rashid Ahmed Kilindo vs Attorney General (Misc Civil Cause 30 of 2018)

Case Law

Country

Tanzania

Country Location

Latitude: -6.422658237654706

Longitude: 36.0716826891688

Country Location (Lié Case Law): Tanzania

Decision Date: 31 août 2020

Case Status: Affaire Résolue

Case Outcome (Procedural)

Motion Denied

Case Outcome (Disposition)

Law or Action Upheld

Keywords

Constitution
Electronic Communications
Incitement of Hatred
Incitement to Violence
Information Security
Terrorism

Court Name: IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM MAIN REGISTRY)

Case Number: MISCELLANEOUS CIVIL CAUSE NO. 30 OF 2018

Case Summary: Rashid Ahmed Kilindo vs Attorney General (Misc Civil Cause 30 of 2018) Facts Rashid Ahmed Kilindo, the petitioner, challenged the constitutionality of several provisions of the Prevention of Terrorism Act (POTA), 2002. He argued that sections 9(1), 11, 30(1), 31(1)-(4), 34(4), 35, 42(1)-(2), 44(2)-(3), and 54 of POTA violated fundamental rights guaranteed by the Tanzanian Constitution. These sections pertained to issues such as criminalizing possession of certain information, supremacy of POTA over other laws, interception of communications, exclusion of individuals from court proceedings, and admissibility of certain types of evidence.

Issue Whether the impugned provisions of the Prevention of Terrorism Act, 2002, violate fundamental rights guaranteed by the Tanzanian Constitution, including the rights to privacy, equality before the law, fair trial, property, and freedom of association.

Rule Article 18(b), (c), (d) of the Constitution: Right to privacy of communication. Article 13(1), 13(6)(a) of the Constitution: Right to equality before the law and fair trial. Article 22(1), 22(2) of the Constitution: Right to work. Article 30(2) of the Constitution: Limitations on fundamental rights must be reasonable and necessary for the purposes they seek to achieve. Analysis Section 9(1) of POTA: The petitioner argued this section criminalized mere possession of information, violating the right to access information and work tools. The court found that section 9(1) aimed at protecting public rights and was thus justified under Article 30(2) of the Constitution.

Section 11 of POTA: The petitioner contended that this section proclaimed the supremacy of POTA over other laws, which could lead to abuse of power. The court determined that POTA aimed to enhance the legal framework against terrorism and did not provide sufficient evidence of its misuse.

Sections 30(1) and 31(1)-(4) of POTA: These sections were challenged for violating privacy and fair trial rights by allowing interception of communications. The court found that these provisions included adequate safeguards, such as requiring the Attorney General's consent and judicial oversight, thereby aligning with the Constitution.

Section 34(4) of POTA: The provision allowed for the exclusion of individuals from court proceedings in the interest of public safety. The court upheld this section, noting that it balanced individual rights with public interest.

Sections 42(1)-(2), 44(2)-(3), and 54 of POTA: The petitioner argued these sections violated property rights and fair trial principles by allowing search and seizure without adequate safeguards. The court found that these provisions included sufficient judicial oversight to prevent abuse and were necessary for national security.

Conclusion The court dismissed the petition, ruling that the impugned provisions of POTA did not violate the Constitution. The court emphasized that the provisions were necessary to protect public safety and national security while including adequate safeguards to protect individual rights.

Case Significance: Balancing Rights and Security: The case highlights the delicate balance between protecting individual rights and ensuring national security. It underscores the necessity of anti-terrorism laws in safeguarding public interest while maintaining constitutional safeguards against abuse.

Judicial Oversight: The ruling reinforces the importance of judicial oversight in implementing laws that potentially infringe on fundamental rights, ensuring that such laws are applied fairly and reasonably.

Guidance on Constitutional Challenges: The case provides a precedent for evaluating the constitutionality of laws, emphasizing the need for concrete evidence to support claims of rights violations and the significance of proportionality and necessity in limiting rights.

Related Law

Source Name and URL: tanzlii.org

Collection

CIPIT

Date Updated: 9 juil. 2024

Documents principaux

Rashid Ahmed Kilindo vs Attorney General (Misc Civil Cause 30 of 2018) 2020 TZHC 3261 (31 August 2020) (1).pdf
English
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Rashid Ahmed Kilindo vs Attorney General (Misc Civil Cause 30 of 2018)

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