Bubelwa Ephraim Kaiza and Another vs Attorney General and Others (Misc. Civil Cause No. 13077 of 2026) [2026] TZHC 2985 (8 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS CIVIL CAUSE NO. 000013077 OF 2026 BUBELWA EPHRAIM KAIZA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF JOSEPH DAUDI MABUGO .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ATTORNEY GENERAL .............................. RESPONDENT / DEFENDANT SHABANI ALLY LILA .............................. RESPONDENT / DEFENDANT GAD JOHN MJEMMAS .............................. RESPONDENT / DEFENDANT AWADHI MOHAMED BAWAZIR .............................. RESPONDENT / DEFENDANT AISHIEL NELSON SUMARI .............................. RESPONDENT / DEFENDANT RULING RWIZILE, J 8th & 8 June 2026. Traditionally, Tanzania holds general elections for the President, members of Parliament and Ward councillors in every five years. Following the 29 th October 2025, general elections, the Presidential Commission of Inquiry into the incidents of violence and breaches of the peace that occurred during and after the general elections of October 2025 was formed. The Commission Page. 1

presented its findings to the President on 23 April 2026. Inter alia, it rd recommended that; “...The Commission has found that there are areas indicating possible criminal conduct and requiring accountability. It is therefore recommended that a Commission of Criminal Inquiry Following the Incidents of Violence During and After the 2025 General Election be established pursuant to the Commissions of Inquiry Act, Chapter 32, Revised Edition 2023. That Commission should be mandated to investigate and follow up on specific matters requiring further inquiry in order to address the allegations identified in this Commission’s Report. These matters include identifying the principal actors behind the violence, disputed incidents involving deaths and injuries, bodies that have not been found, and recommending appropriate accountability measures…” Acting under the above recommendation, on 18 May 2026, the President th appointed the 2 to 5 respondents Commissioners to investigate incidents of nd th criminality as recommended. It is from this background information that the applicants, according to their joint affidavit have applied for leave to file an application for judicial review, aimed at challenging; Firstly, that the appointment of the Commissioners is illegal on the ground that the Commissions of Inquiry Act, [Cap. 32 R.E. 2023] contains no provision authorizing the establishment of a Criminal Investigation Commission. Secondly , but relative to the preceding, that their appointment was ultra vires the Commissions of Inquiry Act, on the basis that the President possesses no Page. 2

statutory authority under the Act to establish a Criminal Investigation Commission of the nature that was recommended. They therefore believe, the decision is illegal, ultra vires, unreasonable, a breach of legitimate expectation, and infringes the Constitutional principles relating to the powers of the Director of Public Prosecutions. It is therefore their prayer, that since the application is filed under to section 2(3) of the Judicature and Application of Laws Act, [Cap. 358 R.E. 2023], sections 18(1) and 19 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap. 310 R.E. 2023], read together with Rules 5(1), 5(2) and 5(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, (herein after to be referred as the Rules), the following orders be granted;

1. Prerogative orders of Certiorari and Prohibition to challenge the decision of the President appointing the 2nd to 5th respondents as members of the Commission.
2. A temporary order restraining the respondents from undertaking, conducting, or continuing any investigations into the criminal incidents of 29 October 2025 pending the hearing and final determination of the substantive application. When this application was placed before me for exparte hearing, based on the nature of the application, that it involves the Attorney General, and the need to do justice, I found it plausible under rule 5(6) of the Rules to extend service to the respondents. Ms Grina Mwakyoma Principal state attorney filed a counter affidavit contesting the application for the 1st respondent, while the, 2 to 5 respondents nd th Page. 3

contested this application by filing a joint counter affidavit. In all, they did not dispute appointment but averred that the appointed Commissioners have neither taken nor subscribed to the requisite oath or affirmation as required by law and that the same has not been published in the Government Gazette and no Government Notice establishing the Commission has been issued. According to them, publication in the Government Gazette is a mandatory legal requirement for the establishment of a commission under the Commissions of Inquiry Act, [Cap. 32 R.E. 2023]. It was further averred that the Commission has not acquired legal force and, therefore, presently no operative decision, proceeding capable of being stayed, restrained, or subjected to injunctive relief. I was therefore asked to dismiss the application with costs. Mr. Mpare Mpoki and Mr. Hekima Mwasipu learned counsel appeared for the applicants, while the respondents were represented by Mr. Mark Mlwambo, and Ms. Vivian Method, learned Principal State Attorneys (PSA), being assisted by Mr. Stanley Kalokola, Mr. George Kalenda, learned Senior State Attorneys, Mr. Erigh Rumisha and Mr. Edwin Webiro learned state attorneys. In his oral argument, Mr. Mpoki, said that judicial review involves two stages; namely the leave stage and the substantive stage. Relying on Emma Bayo vs. Minister for Labour and Youth Development and 2 Others, Civil Appeal No. 79 of 2012, it was his view that leave should be granted where the applicant demonstrates an arguable case, compliance with the prescribed time limits, and sufficient interest in the matter. Page. 4

He argued further that the respondents only challenged the existence of an arguable case. Referring to their pleadings and counter affidavits on record. The learned counsel insisted that the application raised triable issues on illegality, ultra vires conduct, unreasonableness, breach of legitimate expectation, and infringement of constitutional principles relating to the powers of the Director of Public Prosecutions. He therefore held the view, that the applicants have established an arguable case warranting grant of leave. Contesting the application, Ms. Vivian, for the respondents, was at one with Mr. Mpoki on principles governing grant of leave which were correctly stated in Emma Bayo vs. Minister for Labour and Youth Development and 2 Others. She argued that the applicants have failed to satisfy the requirement of establishing an arguable case. Relying on Tenzi Anthony Nyundulwa vs. Hon. Attorney General and Two Others, Miscellaneous Cause No. 22696 of 2025 (High Court) and Tenzi Anthony Nyundulwa v. Hon. Dr. Philip Mpango and Another, Miscellaneous Civil Case No. 1948 of 2025 (High Court), she submitted that the application is speculative because there is no sufficient material before this court, enough to grant this application. It was her view that although the Commission has been issued, it is yet to be Gazetted as required under section 20 of the Commissions of Inquiry Act, [Cap. 32 R.E. 2023]. She further argued that the public notice annexed as MATWIGA-3, merely evidenced the appointment of commissioners and did not establish the Page. 5

existence, mandate, scope, or legal basis of the Commission. It is therefore not capable of being challenged in a court of law. It has not taken effect. She contended that the application has been prematurely filed and lacked sufficient factual foundation. In support of her argument, she cited CPL Buberwa Magayane and Another vs. Minister for Home Affairs, Civil Appeal No. 119 of 2020 (Court of Appeal of Tanzania) and Rosemary Mwakitwange and Two Others vs. Attorney General and 9 Others, Miscellaneous Civil Cause No. 30210 of 2025 (High Court), where leave was granted after gazetting the Commission specifying the duty, time and scope of the Commission, while the Court of Appeal in CPL Buberwa Magayane and Another quashed the decision of this court for having granted leave without sufficient material before it. In further submissions for the respondents, Mr. Kalokola maintained that, in the absence of publication in the Government Gazette, the Court can not ascertain the scope, duration, functions, or legality of the Commission and should not speculate on matters not disclosed in the pleadings. In a rejoinder, Mr. Mpare submitted that the applicants sought to challenge the appointment of the Commissioners and that the public notice annexed MATWIGA-3 expressly indicated that the commissioners were appointed under the Commissions of Inquiry Act, Cap. 32. He argued that the respondents admitted the appointments and that the legality thereof constituted an arguable issue. He insisted, the applicants are only required to establish an arguable case and not a prima facie case. Referring to Rule 4 of the Rules, he submitted Page. 6

that, the law permits applications based on anticipated violations and therefore the application should not be regarded as speculative. Mr. Mwasipu supplemented the rejoinder for the applicants, by arguing that the respondents' denial of the allegations in the affidavit demonstrate existence of arguable issues. He submitted that questions concerning the legality, scope, and powers of the Commission were matters for determination at the substantive hearing and not at the leave stage. Relying on Rosemary Mwakitwange and Two Others (supra), he held the view that this court should not delve into the merits of the intended application. It is required to only grant leave. Having heard oral submissions of both parties, the point to determine is whether this application has merit. It should be noted at this time that despite praying for the temporary order restraining the respondents from undertaking, conducting, or continuing any investigations into the criminal incidents of 29 October 2025 pending the hearing and final determination of the substantive application, at the hearing, the respondents, abandoned the prayer. That is why, it not subject of discussion. This court will therefore deal with one point, which is if and only if the applicants have demonstrated an arguable case. It has been noted and rightly so, that the application for leave may be only granted if three things are shown to the satisfaction of the court by the applicant which are; demonstrating an arguable case, compliance with the prescribed time limits, and showing sufficient interest in the matter as held in Page. 7

Emma Bayo vs. Minister for Labour and Youth Development and 2 Others. It is also true of Rule 5(1) of the Rules, and also the case of Cheavo Juma Mshana vs. Tanapa and 2 Others (Misc. Civil Cause 7 of 2020) [2021] TZHC 2254 (18 February 2021), which cited the Court of Appeal decision in the case of the Attorney General vs. Wilfred Onyango Mganyi @ Dadii and 11 Others, Criminal Appeal No. 276 of 2006 where also the Halsbury's Laws of England , 14th Edition, in paragraph 568 was cited. There is also a recent decision of this court in Rosemary Mwakitwange and 2 Others vs Attorney General and 9 Others (supra) supporting the point. Happily, both parties are at par, in the sense that two of the points as above have been met. What is in dispute is presence of an arguable case. But all that agreed and said, it is true of Ms Vivian that three points for granting leave, have to be met cumulatively as held by this court in Tenzi Anthony Nyundulwa vs. Hon. attorney General and two Others (supra) . It is therefore the respondents’ argument that if there is no arguable case, this application should be refused. Having carefully considered pleadings of both sides, and the submissions advanced by the parties, I am satisfied, in one hand, that the application has met terms stated under Rule 5(1)(2) (3), that is to say, it is competent before this court, and Rule 6, since it has been filed in time. The record shows the application was filed on 24 May 2026. The impugned decision was made on th 18 May 2026, which is also not disputed. The application was therefore th instituted within seven days from the date of the decision complained of and Page. 8

well within the period prescribed by law. As to sufficient interest (locus standi), the applicants contended that they are patriotic and public-spirited citizens of the United Republic of Tanzania and residents of Dar es Salaam who were directly affected by the events of 29 th October 2025. They averred that they were present in the affected areas during the violence, destruction of property, injuries, and loss of life that occurred on that date and that, their families, and their communities continue to suffer the social, psychological, economic, and physical consequences thereof. Notably, the respondents have not challenged the applicants’ standing and have acknowledged that the matters in issue are of significant public importance. Accordingly, the applicants have demonstrated sufficient interest in the proceedings, thereby satisfying the requirement of locus standi. Regarding the existence of an arguable case, it is important to bear in mind that at the leave stage the Court is not required to determine the merits of the substantive application. The task is limited to determining whether the applicants have disclosed an arguable case deserving further consideration. To determine if there is an arguable case, this court relies as the respondents have heavily asked, in the case of Tenzi Anthony Nyundulwa vs. Hon. Dr. Philip Mpango and Another, ( supra) , where it was sufficiently held that; “... To determine whether an arguable case has been made, the application must contain sufficient information so that any reasonable person, considering the nature, purpose, and intent of the matter, can clearly identify the issue Page. 9

under contention. There must be adequate materials placed before the Court to enable a proper and fair determination. Speculations, no matter how persuasive or rhetorically convincing, cannot in any way meet the test of an arguable case. A prim a facie case must be established clearly upon reading the application itself, without requiring any further elaboration or supplementary explanation. The Court must be able to discern, from the face of the pleadings, that there exists a genuine and justiciable issue warranting judicial intervention ...” I agree in part with this decision that this application cannot be granted unless sufficient material is placed before the court. This is basic and it has been the case that such sufficient materials have to be obtained from the pleadings. There is no evidence needed to come to such a conclusion. Holding that there must be a prima facie case is taking this point far beyond the terms of an arguable case. A prima facie case, as it is commonly understood and legally contextualized required some evidence which is not, with the arguable case. According to Black's Law Dictionary, 7th Pocket Edition, an arguable case is a low-level threshold simply meaning, an issue is reasonably open to debate or interpretation. In contrast, a prima facie case is a strictly defined evidentiary threshold where a party has presented enough evidence to prove all essential elements of their claim. It is therefore settled in mind that; the test of an arguable case is just an inquiry from the pleadings and if satisfied that there is an issue open to Page. 10

debate or interpretation is enough to grant an application for leave, if other considerations remain constant. Looking at the affidavit and counter affidavits, the applicants are seeking to challenge powers of the President of appointing a Commission under the Commissions of Inquiry Act, and there is not dispute that the Commissioners have been appointed under the same law in terms of annexure MATWIGA 3 in the applicants’ affidavit. The public notice is plain that it is acting under the recommendations of the Commission as I have shown before. The material allegations advanced by the applicants have been substantially disputed by the respondents, thereby raising issues that warrant determination. In other words, issue raised are debatable and so capable of judicial scrutiny. A thing to note further is that, traditionally Commissions of Inquiry are creatures of the law. In some jurisdictions, they are Constitutional mandates vested in the President to issue such Commissions. In South Africa for instance, section 84(2)(f) of Constitution of Republic of South Africa, 1996, empowers the President to appoint Commissions of Inquiry, while the Commissions Act, deals with their rules. The case here is different, I know no constitutional provision and I have not been cited with any which empowers the President of this country to issue Commissions. Therefore, there remains one avenue, the law. Although I do not find elaborate provisions of the law in the Act, Cap. 32 as it is in the South African case, being the only single statute dealing with Commissions of Inquiry, the scope of the Commission cannot be known until the same has came into Page. 11

effect in terms of section 20, which provides that all Commissions under this Act, and all revocations of any such Commission shall be published in the Gazette and shall take effect on the day of publication. I agree with the respondents therefore that the Commission has not taken effect and therefore not capable of functioning without terms of reference which state the scope, time and the manner in which the same will operate. I need not to go further, since doing so will be trying to deal with the main application. I was rightly warned that it is not the business of the court at this time. But it is enough to say, since the application has shown that the Commissioners were appointed which is not disputed, it is not necessary to deal with the functions, scope, mandate and time of the Commission since doing so will be going far above what the law requires this court at this stage. For the reasons stated, I find that there is enough material in the affidavit and counter affidavits sufficiently showing an arguable case. This application is therefore granted. The applicants, as a matter of law, have to file their application in 14 days from today. No order as to costs Dated at KIGOMA this 8th of June 2026 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 12