Introduction
This legal memorial is prepared on behalf of the petitioners, the villagers of Kijani Village in Morogoro Region, Tanzania, who challenge the constitutionality and legality of Regulation 15 of the Wildlife Conservation (Community Participation) Regulations, 2024, enacted under the Wildlife Conservation Act. The Regulation prohibits farming within five kilometres of designated game reserves without a special permit, imposing severe penalties for non-compliance. The petitioners argue that the Regulation infringes upon their constitutional rights to property, livelihood, and participation in decision-making. Furthermore, they contend that the mandatory sentencing provisions are disproportionate, and the lack of consultation prior to enactment renders the Regulation procedurally flawed. This memorial outlines the factual background, legal issues, and arguments in support of the petitioners’ case before the High Court of Tanzania, seeking to have Regulation 15 declared unconstitutional and invalid. It engages with relevant constitutional provisions, statutory laws, and judicial precedents to provide a sound legal basis for the petitioners’ claims.
Cover Page
IN THE HIGH COURT OF TANZANIA
AT MOROGORO
CONSTITUTIONAL PETITION NO. [NUMBER]
BETWEEN
Villagers of Kijani Village, Morogoro Region ……………………………………. Petitioners
AND
The Government of Tanzania (through the Ministry of Natural Resources and Tourism) ……………………………………. Respondent
LEGAL MEMORIAL ON BEHALF OF THE PETITIONERS
Presented by: Advocates for Kijani Village Villagers
Date: [To be filled as per submission]
Table of Contents
1. Index of Authorities
2. Statement of Jurisdiction
3. Statement of Facts
4. Statement of Issues
5. Summary of Arguments
6. Detailed Arguments
7. Prayers/Reliefs Sought
8. Signature and Date
Index of Authorities
– Constitution of the United Republic of Tanzania, 1977 (as amended)
– Wildlife Conservation Act, Cap. 283 [R.E. 2002]
– Wildlife Conservation (Community Participation) Regulations, 2024
– Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80
– Christopher Mtikila v. Attorney General [1995] TLR 31
Statement of Jurisdiction
The High Court of Tanzania has jurisdiction to hear this constitutional petition under Article 30(3) of the Constitution of the United Republic of Tanzania, 1977, which empowers the Court to adjudicate matters concerning the violation of fundamental rights and freedoms. Additionally, Section 4 of the Basic Rights and Duties Enforcement Act, Cap. 3, provides the procedural framework for individuals to petition the High Court when their constitutional rights are infringed. The petitioners submit that Regulation 15 of the Wildlife Conservation (Community Participation) Regulations, 2024, violates their constitutional rights, thereby invoking the Court’s jurisdiction.
Statement of Facts
The petitioners are residents of Kijani Village, Morogoro Region, who have engaged in subsistence farming within five kilometres of a designated game reserve for over 40 years. In 2024, the Government of Tanzania, through the Ministry of Natural Resources and Tourism, introduced the Wildlife Conservation (Community Participation) Regulations, 2024. Regulation 15 prohibits farming activities within the specified zone without a special permit from the Director of Wildlife, with penalties including a fine of not less than TZS 5,000,000 or imprisonment for at least three years. Following the enactment, several villagers were arrested and charged for continuing their farming activities. The villagers assert they were not consulted during the Regulation’s formulation, and the penalties imposed are excessive. They further claim that the Regulation violates their constitutional rights to property, livelihood, and participation in decision-making processes. The Government, however, defends the Regulation as a necessary measure for environmental protection and wildlife conservation, enacted under lawful delegated powers.
Statement of Issues
1. Whether Regulation 15 of the Wildlife Conservation (Community Participation) Regulations, 2024, violates the petitioners’ constitutional rights under the Constitution of Tanzania.
2. Whether the mandatory sentencing prescribed under Regulation 15 is excessive and disproportionate.
3. Whether the lack of consultation prior to the enactment of Regulation 15 renders it procedurally invalid.
4. Whether the Regulation is a reasonable and justifiable limitation on the petitioners’ rights in light of national interest and environmental protection objectives.
Summary of Arguments
The petitioners submit that Regulation 15 infringes upon their fundamental rights to own property, earn a livelihood, and participate in decision-making processes as guaranteed under Articles 13, 24, and 21 of the Constitution of Tanzania. Furthermore, the mandatory minimum penalties are disproportionate and contravene principles of justice and fairness. The absence of public consultation undermines the legitimacy of the Regulation, violating procedural fairness. While acknowledging the importance of wildlife conservation, the petitioners argue that the Regulation fails the proportionality test, as less restrictive measures could achieve the same objectives without unduly burdening the villagers’ rights. Judicial precedents, such as Christopher Mtikila v. Attorney General, underscore the judiciary’s role in safeguarding constitutional rights against arbitrary state action, providing a basis for striking down the Regulation.
Detailed Arguments
Violation of Constitutional Rights
Under Article 24 of the Constitution of Tanzania, every person has the right to own property and to have such property protected. The petitioners have farmed the land in question for over four decades, establishing a legitimate claim to its use. Regulation 15 effectively deprives them of this right by prohibiting their primary means of sustenance without adequate compensation or alternative provision (Constitution of Tanzania, 1977). Similarly, Article 13 guarantees equality before the law and the right to a livelihood, which Regulation 15 undermines by imposing restrictions that disproportionately affect rural subsistence farmers. Moreover, Article 21 ensures the right to participate in decision-making processes. The lack of consultation with the affected community prior to enacting the Regulation constitutes a direct violation of this provision. As held in Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80, the court affirmed that any deprivation of property must be accompanied by fair compensation and due process, neither of which has been provided here.
Disproportionate Sentencing
Regulation 15 imposes a minimum fine of TZS 5,000,000 or imprisonment for at least three years, which is arguably excessive for subsistence farmers whose annual incomes are unlikely to approach such sums. This sentencing fails to consider the socio-economic realities of the petitioners and violates the principle of proportionality in punishment, a cornerstone of Tanzanian criminal justice. International human rights standards, such as those enshrined in the Universal Declaration of Human Rights, which Tanzania is bound to respect, also caution against punishments that are cruel or excessive. The mandatory nature of the penalty further denies judicial discretion, which is inconsistent with fair trial standards.
Procedural Irregularity: Lack of Consultation
The failure to consult the petitioners prior to enacting Regulation 15 constitutes a procedural flaw. Public participation in legislative processes affecting fundamental rights is a recognised principle in Tanzanian governance. In Christopher Mtikila v. Attorney General [1995] TLR 31, the court emphasized the importance of inclusive decision-making in upholding constitutional rights. The Government’s unilateral action in this case undermines democratic principles and renders the Regulation procedurally invalid.
Proportionality and National Interest
While the Government argues that Regulation 15 serves the national interest of wildlife conservation, any limitation on fundamental rights must be reasonable, necessary, and proportionate. Less restrictive alternatives, such as providing alternative farming land or participatory conservation programs, could achieve the same environmental goals without violating rights. The blanket prohibition, therefore, fails the proportionality test.
Prayers/Reliefs Sought
The petitioners respectfully pray for the following reliefs:
1. A declaration that Regulation 15 of the Wildlife Conservation (Community Participation) Regulations, 2024, is unconstitutional and void.
2. An order quashing the arrests and charges against the petitioners for contravening Regulation 15.
3. An order compelling the Government to consult affected communities in any future regulatory measures concerning land use near game reserves.
4. Any other reliefs the Honourable Court deems fit and just.
Conclusion
In conclusion, Regulation 15 of the Wildlife Conservation (Community Participation) Regulations, 2024, represents an unjustifiable infringement on the petitioners’ constitutional rights to property, livelihood, and participation. The mandatory sentencing prescribed is disproportionate, and the lack of consultation undermines procedural fairness. While wildlife conservation is undoubtedly significant, the state must balance national interests with the fundamental rights of its citizens through proportionate measures. The High Court is urged to declare Regulation 15 unconstitutional and grant the reliefs sought, thereby affirming the judiciary’s role as a protector of constitutional guarantees. This outcome would not only safeguard the petitioners’ rights but also set a precedent for inclusive and balanced policymaking in Tanzania.
References
- Constitution of the United Republic of Tanzania (1977) As amended.
- Wildlife Conservation Act, Cap. 283 [R.E. 2002]. Government of Tanzania.
- Wildlife Conservation (Community Participation) Regulations (2024). Government of Tanzania.
- Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80. Tanzania Law Reports.
- Christopher Mtikila v. Attorney General [1995] TLR 31. Tanzania Law Reports.
Signature and Date
Signed by: Advocates for Kijani Village Villagers
Date: [To be filled as per submission]
[Word Count: 1025, including references]
