MZUMBE UNIVERSITY

FACULTY OF LAW

BACHELOR OF LAW
NAME OF THE SUBJECT ADMINISTRATIVE LAW

CODE OF THE SUBJECT LAW 226

COURSE OF STUDY LLB II

NATURE OF TASK GROUP ASSIGNMENT

DATE OF SUBMISSION 27TH, DECEMBER, 2012

PARTICIPANTS

NAMES REGISTRATION NUMBERS

ALI, KHADIJA M. 14161/T.11

TUNSUME ANGUMBWIKE 13946/T.11

DAUD YUSUPH

GAMBISHI JOSEPH G 13947/T.11

GHATI MUSA

JUMA REHEMA 13053/T.11

KAMELI ML, AMOS 14063/T.11

KIDIFU KELVIN J 13981/T.11

KILIMBA NANCY GRACE

MAKALA JANETH 14043/T.11

QUESTION

“Regardless of how complex the modern Administration is, and no matter how complex
legal issues might be, Administrative Law remains to be more relevant to administrators
other than lawyers” Do you agree?, Substantiate your answer.

CONTENTS
1.0 INTRODUCTION
1.1 The Concept of Administrative law
 Development of Administrative law
 Objectives of administrative law

2.0 MAIN DISCUSSION

2.1 Relevant of administrative law to administrators

 Giving power and duties on the Administration

 Defining the limitations of the power of the administrators
 Spelling out the procedures to be followed by the Administration
 It enhances accountability to administrators
 Providing of the positive principles for good administrative practices
 Protection of the rights of the individuals
2.2 Relevant of administrative law to lawyers
 Protecting human rights by providing the judicial remedies
 Adjudicating Dispute through interpreting laws in the judiciary

3 CONCLUSION
4 BIBLIOGRAPHY
INTRODUCTION

Administrative law has so many definitions according to the person or the place in which it is
used. Administrative law is the branch of public law, is the law of citizens and their legal rights
against the violation the rights by the state or by its agencies or its administrators of personal
interests. Is the law that shows the whole structure of the governing, solving disputes between
citizens and state versus public authorities. Also it is defined as “the law concerning the power
procedures of administration agency, including especially the law governing judicial reviews of
administrative actions”1

“Administrative law is the public law which deals with the structure, powers, and function of the
organs of the administration, the limit of their powers, the methods, and procedures followed by
them in exercising their powers and functions. The method by which their powers are controlled
including the legal remedies available to a person against them when his rights are infringed by
their operation. This statement has four limbs which are; first limb deals with the composition
and powers of the organs of administration, the second limb refers to the limits on the power of
administrative authorities, the third limb refers to the procedures used in exercising these powers
that is the process and procedures which the administrative authorities themselves follow in the
exercise of their power, evolving of fair procedures as the way of minimizing abuse of vast
discretionally powers conferred in the administration. Example the natural justice forms a
significance component of administrative process to day and many situations court apply the
concept of fairness, and the last limb refers to the control of administration through judicial and
other means. Under this head would follow judicial as well as extra-judicial means of controlling
the administration. For instance tribunals, and ombudsman” 2

Development of Administrative law to Modern Administrative law; before the 20th century
the government had to rule its people through different administrations, like monarchy especially
in England. As the time went on, the government had minimal function to people as the Leissez
Fair policy was. The government could protect its people from external invaders, to maintain law

1
MP, Jain, and SN, Jain (2005), Principles of Administrative Law, 14th ed, p. 9
2
ibid
and order, to administer justice and to collect tax so as to run the government activities in the
state. From this situation inequality for bargain of power, absolute exploitation by the rich
people, accumulation of wealth into few people, presence of unhealthy and bad working
conditions increased, this Leissez Fair policy caused miseries to people3.

Due to this situation, in 20th century the government was to intervene so as to regulate the socio-
economic and to forget individualism as the result to have collectivism, whereby The Leissez
Fair policy changed into welfare state, hence the government has to change from negative role to
positive role by providing each and everything as the provider 4. For example to run the
industries, transportation, and to plan about what should be produces and what should be sold.
By so doing the government assumed so many functions, therefore to do all these functions the
government should be very strong and acquires many powers. Therefore delegated legislations
were inevitable and is where all three organs that of parliament, judiciary and executive were
held by the administration. The only question was which law could regulate the power and
prevent the abuse of these powers vested to the administrationand not to infringe the rights of the
individuals? The Administrative Law observed more relevant to administrators who run the
whole system of administration. The main aims of the administrative law are to limit power of
administrators and protect the rights of individuals.

MAIN BODY

Giving power and duties to the administrators

The government and its agencies have got power to make some rules and regulations that will
enable them to carry out their functions and plans. Thus apart from parliamentary law, the
government through its agencies have been delegated with the power of making laws or rules by
the parliament which as general are known as delegated legislations. For instance the local
government has been making various regulations which are used to run various plans of the
government, example these regulations may be in respect of health, revenue, environment

3
ibid
4
ibid
conservation and others alike. Thus the administrative law is there to control these powers where
they have abused by these bodies and make sure that the laws enacted by these delegated bodies
does not infringe and violate or interfere with the rights of individuals. Article 13 (2) of the
constitution of the United Republic of Tanzania5, provides that no law enacted by any
authority will be discriminatory either in its effect.

Spells out the limits of the power and authority that can be exercised by the administrative
authority (administration)

In other hand administrative law remains to be much relevant to the administrators other than
lawyers in the sense that, this branch of law provide for the limits of power and authority
conferred to them by the respective statute. Thus in the course of exercising their powers,
administrators have to exercise them in a defined limit. Executive agencies and department
which all together form the whole system of administration have been vested with powers and
authority through their respective statutes such as Constitution, Labor Act, Employment Act and
others alike. These powers have not been left without limitations, rather they have been set with
boundaries in which the administrator will be required to act upon. The onus of so doing is to
prevent the violence and infringement of individual rights and other effects which may likely to
happen there upon.

Spells out the procedures to be followed by the administration

Administrative law has another important function of showing the procedures to be followed by
the administration in exercising their powers and duties, so as to avoid the infringement of rights
of individuals. These procedures are settled out by laws. These involves fair procedures as the
way of minimizing the abuse of vast discretionary powers, conferred on the administration 6

5
[Cap 2 R E 2002
6 th
M. P. Jain, and S N Jain, (2005), principles of Administrative Law, 14 ed, p. 13
It enhances accountability to administrators

Under normal circumstances public bodies, agencies and department which forms part of
administration system have been given functions by which they are required to perform as
provided to them either by statutes or their establishment. For example the ministers as one of
executive bodies have got functions which are stipulated in their respective ministries. These
functions are required to be performed by these ministers, whereby once happen that the minister
has not performed his duty then he may become responsible for his failure of performing his
duty. Thus the law provide that, minister may be held responsible either by individual ministerial
responsibility, whereas a minister is held accountable on his own ministry as provide under
Article 63(a) of the constitution7 stipulates that “for the purpose of performing their duty the
national assembly may ask any question to any minister concerning public affairs in the united
republic which are within his responsibility” or by collective ministerial responsibility, whereas
the whole cabinet of minister is held responsible for by justifying what has been done by the
government through the prime minister. And the members of national assembly may vote a vote
of no confidence over the prime minister as stipulated under article 53 A of the constitution8. By
doing this, it commands these public bodies to perform their duty correspondingly so as to avoid
being held responsible.

It embodies positive principle to facilitate good administrative practices

As the matter of fact the executive (Administrator) through its various executive agencies9, have
been conferred with adjudicative power over matter or disputes arising between itself and its
members (workers). Through various tribunals the executive has been exercising adjudicative
duty between the executive itself and individual workers. For-instances through labour tribunals
solving labour disputes matters. Thus administrative law provide principles that have to be
adhered by the tribunals in solving disputes, in order to make sure that rules of natural justices

7
The constitution of united republic of Tanzania 1977.
8
.ibid.
9
. Is a permanent or semi-permanent organization in the machinery of the government that is responsible for the
oversight and administration of specific functions such as an intelligent agency-department or ministries.
are adhered to. Such rules of natural justices includes, right to fair hearing (Audi alteram partem:
literally to hear other side) and rule against bias (Nemo judex in causa sua). Thus this branch of
law advocates that, where the matter or dispute arises and is then brought before the tribunal then
that other side especially litigants individuals must be heard fairly in sense that they must be
given chance to defend themselves and must be told of the nature of the dispute complained of
and other principles related to this rule and also the administrator must not be the adjudicator of
the matter to which himself is involved. And once these rules are not adhered to, the decision
given, may be further quashed or nullified, as it was in the case of Simon Manyaki v. Executive
committee and Council of Institute of Finance and Management (IFM) and another10 the
applicant was terminated from his studies by the executive committee of the council of the IFM,
not to attempt any other future examinations because of being suspected on the leakage of the
earlier examination. It was argued in favour of the applicant, that the probe committee did not
sufficiently appraise the applicant of the prejudicial allegation levelled against him and that he
was not afforded an opportunity. Mapigano J. Held that;

(i) An administrative body exercising functions that impinge directly on legally

recognized interests has a duty to act judicially in accordance with the rules of natural justice,

(ii) disciplinary proceedings in higher educational institutions have to be

conducted in conformity with natural justice provided at least the penalty imposed or likely to be
imposed is severe;

(iii) the applicant whose rights and legitimate expectations stood to be so

adversely affected by the inquiry had the right:

(a) of being sufficiently appraised of the particulars of the prejudicial allegations

that were to be made or had been made against him, so that he could effectively prepare his
answer and collect evidence necessary to rebut the case against him;

(b) subject to the need for withholding details in order to protect other overriding
interest, of being accorded sufficient opportunity of controverting[sic] or commenting on the
materials that had been tendered or were to be tendered against him;

10
[1984] TLR. 304 HC
 (c) of presenting his own case;

(d) of being given a reasonable and fair deal

(iv) the applicant was deprived of his right.

Protection of the rights of the individuals

It is necessary to have good and a fair administration that will lead to the rights of all peoples
which should not be infringed properly redressed with mechanisms 11. This can be seen in the
case of Chumchua s/o Marwa v Officer i/c of Musoma prison and Attorney General 12 . In this
case Marwa Wambura and 155 others were deported from Musoma to Lindi on the ground that
there were dangerous to peace and good order of the state. It was held that the Deportation
Ordinance was unconstitutional as contrary to Article 17(1) of the Constitution of the United
Republic of Tanzania of 197713 which states that “Every citizen of the United Republic has the
right to freedom of movement in the United Republic and the right to live in any part of the
United Republic, to leave and enter the country, and the right not to be forced to leave or be
expelled from the united Republic”.

Administrative Law is also relevant to lawyers, when they are called to participate in different
legal and judicial matters. Examples of these legal matters are of;

Adjudicating Dispute through interpreting laws in the judiciary

Article 4(2) of the Constitution of the United Republic of Tanzania 14, states that

“ The organs vested with executive powers shall be the government of the United Republic and
the Revolutionary government of Zanzibar; The organs vested with judicial powers shall be the
judiciary of the United Republic and judiciary of the revolutionary government of Zanzibar; and
the organs vested with legislative and supervisory power over public affair shall be the
parliament of the United Republic and House of Representatives”

11
M. P. Jain, and S N Jain, (2005), principles of Administrative Law, 14th ed, p. 8
12
Criminal Case no. 2 of 1988, (Unreported)
13
Cap 2 [R E 2002]
14
[Cap 2 R E 2002]
In Article 107B of the same constitution, provide for the power of all court that shall have
freedom and shall be required only to observe the provisions of the constitution and laws of the
land. Therefore lawyers are not bound by the administrators when it comes to this function. For
example in the of Tanzania Air Service Limited v Minister for Labour Attorney General and
Commissioner for Labour15 the issue was whether the decision of the minister was final and
conclusive, the decision was final but it would not bound an individual to ask for judicial review.

Protecting human rights by providing the judicial remedies

Where there is an infringement of individual rights by the administrative operation, the judiciary
through court proceedings, gives remedies available to the person whose rights have been
violated. As it is stated in Article 30(3) of the Constitution of The United Republic of
Tanzania16 state that;

“Any person claiming that any provision in this Part of this Chapter or in law concern his right
or duty to him has been is being or is likely to be violated by any person anywhere in the United
Republic, may institute proceedings for redress in the High Court”.

In the case of Simon Manyaki v. Executive Committee and Council of the Institute of Finance
and Management(IFM) and another17, the applicant was terminated from his studies by the
executive committee of the council of the IFM, not to attempt any other future examinations
because of being suspected on the leakage of the earlier examination. It was argued in favour of
the applicant, that the probe committee did not sufficiently appraise the applicant of the
prejudicial allegation levelled against him and that he was not afforded an opportunity of being
heard. Therefore the applicant was deprived of his right to be heard contrary to Article 13(6) (a)
of the Constitution of the United Republic of Tanzania of 1977 18, states that “When the rights
and duties of any person are being determined by the court or any other agency, that person shall
be entitled of fair hearing…..”

15
[1996] TLR 217
16
Op. cit.
17
[1984] TLR 304
18
Op. cit.
 REFERENCES

STAUTES

CASES

BOOKS

Ghosa. M., (1918), Comparative Administrative Law, London, Butherworth, and co., Law
Publisher, p. (v)

Jain. M. P. and Jain. S. N. (2005), Principles of Administrative Law, 14th ed, Wadhwa,
Wadhwa and co. Nagpur

Leyland. P., and Woods . T., (2003), Tex Book on Administrative Law,

Safra. J. E., and Cauz. J. A., (2007), The new Encyclopedia Britanica; Micopaedia Ready
Refence, 15th ed, U. S. A Chicago, By Encycropedia Britanica inc. vol. 1, p 102

Takwani C. K, (1998), Lectures on Administrative Law, East Book co. Lucknow

 MZUMBE UNIVERSITY
FACULTY OF LAW
COURSE : LL.B

CLASS : LL.B II

SUBJECT : ADMINISTRATIVE LAW I

SUBJECT CODE : LAW 226

NATURE OF WORK : GROUP PRESENTATION

DATE : 27TH DECEMBER 2012

Group Names

1. Mambo, Gildon………………………………..14002/T.11
2. Makondoo kocky………………………………13935/T.11
3. Mashauri Bugeke……………………………...13976/T.11
4. Mary Mosha……………………………………13936/T.11
5. Mwaka Hussein………………………………..14062/T.11
6. Myeya Omega………………………………….13986/T.11
7. Njombe Janette………………………………..13968/T.11
8. Nombo Casian…………………………………13962/T.11
9. Peter Filbert……………………………………13985/T.11
10. Mkonongo R. Venance………………………..14059/T.11

Question

The difference between administrative law and constitutional law is not one which is
fundamental and in actual fact that there is no clear or definite gap between those two laws.
There is a significant overlap between the two and no one wonder one would suggest them to be
one law instead of separate branches of law. Is this statement correct? With clear examples,
illustration and authorities substantiate the veracity of this statement.
TABLE OF CONTENTS

1.0 Introduction

1.1 Concepts of Constitutional Law and Administrative Law

1.2 Development of Constitutional Law and Administrative Law

2.0 Main Body

2.1 Arguments on why Constitutional law and Administrative law are considered to be one
branch of law

2.2 Existing distinctions between Constitutional law and Administrative law

2.3 Applicability of Constitutional law and Administrative law

3.0 Conclusion

4.0 References

 List of statutes
 List of cases
 Books
1.0 Introduction

1.1 Administrative law is the body of law that arises from the activities of administrative
agencies of government; Government agency action can include rulemaking, adjudication or the
enforcement of a specific regulatory agenda. Administrative law is considered a branch of public
law as a body of law, administrative law deals with the decision-making of administrative units
of government for instance; tribunals, boards or commissions that are part of a state regulatory
scheme in such areas as international trade, manufacturing the environment, taxation
broadcasting, immigration, and transport.

According to Professor Wade administrative law, is the law relating to the control of government
power. According to him, the primary object of administrative law is to keep powers of
government within their legal bounds so as to protect the citizen against their abuse of power 19
therefore the definition does not define well the subject, it also does not deal with the powers and
duties of administrative authorities nor with the procedure required to be followed by them.

However, M,P Jain 20 contended further that administrative law deal with the structure ,powers
and the functions of the organs of administration, the limits of their power s the method and
procedures followed by them in exercising their powers and functions for instance the
methods by which their power are controlled including legal remedies available to a person
against them when his rights are infringed by their operation.

Constitutional law is concerned with the role and powers of the institutions within the
state and with the relationship between the citizen and the state. The constitution is a
living, dynamic organism which at any point in time will reflect the moral and political values of
the people it governs, and accordingly, the law of the constitution must be appreciated
within the socio-political context in which it operates.21

1.2 Therefore at previous constitution and administration were regarded as single law however
from 20th century administrative law grew and become separate and independent law due to
various factors such as radical change in the philosophy as to the role played by the state, judicial

19
E.C.S Wade and A.W. Bradley, Constitutional and Administrative Law, 11th Ed. Longman Group, New York
20
Takwani C.K,(2002) Lectures on Administrative law, Pg 4
21
Hellaire Bannett (2002) Constitution and administrative law 4th Ed pg 3
system proved inadequate to decide and settle all types of disputes it seems to take action slowly.
And it was very cost fully for everything to be decided by merely interpretation of any status,
under such circumstance industrial tribunals and labors courts were established which possessed
the techniques‟ and expertise to handle these complex problems.

2.0 Main Body

2.1 The constitutional law and administrative law are regarded as one branch of law. There are
no clear cut differences between them. The statement of making these branches of law in one
discipline is correct. The following are the arguments which make them one branch of law:-

Both Constitutional law and Administrative law are public law. Public law 22 is that law that
governs the relationship between the individual or companies and the state. Constitutional law
actually forms the backbone of public law. It is the branch of public law which determines the
nature of state, structure of government, power of government, functions, division of power
among constitutional organs. Constitution of the United Republic of Tanzania of 197723 in
Chapter Two establishes the executive, its functions and power.

Administrative law is also a branch of public law which deals with how administration is
controlled and made accountable. Administrative law emerged and developed whenever any
person becomes victim of arbitrary exercise of public power. Therefore administrative law deals
with relationship of individual and power or authority. The Public Service Act of 2002, The
Public Service Regulation 24, 2003 and The Public Service Scheme25, 2003. These are some laws
which regulate and control administration.

Constitutional law deals with general principles relating to the organization and power of the
legislature, executive and judiciary and their functions and on the fundamental principles of
constitutionalism such as the rule of law and separation of power.

Administrative law is the part of constitutional law which deals in detail the power and
the functions of the administrative authorities including civil services, public department, local

22
Other examples of public laws are Human Right matters, immigration and citizenship, criminal law, planning law
and licensing law.
23
[ CAP 2 RE 2002]
24
Government Notice no 168 of 2003
25
Government Notice no 169 of 2003
authorities and other statutory bodies. It deals with the structure, power and functions of organs
of administration, the method and procedure followed by them in exercising their power and
functions, the method by which they are controlled and the remedies which are available to a
person against them when his rights are infringed by their operation.

Administrative law is also instrument in enhancing the development of constitutional values such
as rule of law and democracy. Rule of law plays an important role in administration of law. It
provides protection to the people against the arbitrary action of the administrative authorities.
The rules, procedures and procedures of administrative law, by making public officials, comply
with the limit of the power as provided in law. Also checking the validity and legality of their
actions, subjects the administration to the rule of law. Administrative law is directly affected by
the constitutional structure of government.

Both have the same source of law. The sources of various provisions found in constitution are
many, such as the past experience of the country. For instance, the social, economic, political
historical, geographical and notable historical documents such as the British Magna Carta of
1215, the intellectual work of eminent writers, jurists, historians, philosophers, politicians such
as John Locke and A.V Dicey, case law or judicial precedents, customs and way of life of the
people, rules and conventions guiding human behavior. The constitutions of some countries are
made by constitutional conference or constituent assemblies which may draft the constitution of
a given country.

The source of administrative law is the Constitution 26, most of power and authority of top of
administration are provided in the constitution. Also the rights of individual against power are
provided in the constitution. Also there are statutes27 which are basic source of law as
administrative law as concerned. Case laws or precedents these are legal principles established in
the judgment28. Other sources are common laws applicable when there is lacuna and
international laws which are signed and ratified by a country to be applied as laws.

26
The Constitution of United Republic of Tanzania of 1977
27
Such statutes are The Public Service Act, The Regional Local Government Act, The Local Government Finance
Act, The Ward Tribunal Act and The Public Service Regulation.
28
Chumchua s/o Marwa v Police Officer in charge of Musoma Prisoner & Attorney General
2.2 In many definition of administrative law, it was included in constitution law though in
essence constitution law does not differ from administrative law in as much as both are
concerned with functions of the Government and both are a part of public law in the modern
state and the sources are the same, yet there is distinction between the two 29, however the
existing differences between the two laws are not fundamental to make them not to be one
branch of law.

While constitution law deals with structure and rules which regulate the functions which has
been imposed by constitution, the details of functions are left to administrative law. Therefore
while constitutional law deals with the general principles relating to organization and powers of
legislature, Executive and judiciary and their functions towards citizens, administrative law is a
part of constitution law which deals in detail with powers and functions of administrative
authorities and other statutory bodies. Thus, while constitutional law is concerned with
constitutional status of the ministers and civil servants, administrative law is concerned with the
organization of the services and the proper working of various departments of the Government.

Constitution envisages various rights that are fundamental rights of the citizens of the particular
country with various processes and people‟s rights, but on contrary administrative law deals with
details of the organization, control, procedures and jurisdiction of administrative authorities
within the flame work of the rule of law 30. In the case of Said Juma Shekimweli V Attorney
General31 it was declared that “no power conferred by law on a public leader or officer is
absolute or limitless. Every such power must be exercised in good faith and in accordance with
the constitution and other laws. Any assertion the presidential powers brook no limitation would
have no basis in law”. The above case shows that, the constitution provide fundamental rights
and process while administrative law puts those rights in motion and implementation of those
rights.

Constitution law includes various organs of the government, that is executive, judiciary and
legislature and inter personal relationship, relationship between the states and the state, and state
with the centre. But administrative law deals with administrative functions by administrative

29
Takwani C.K,(2002) Lectures on Administrative law, Pg 13
30
Textbook on Administrative law
31
[1997] TLR 3
authorities with their relationship with people in the society32. For example, chapter one, part III
of The Constitution of the United Republic of Tanzania of 1977, provides basic rights and duties
of citizens, then it is administrative law which provides for power and limitation of the
administration towards implementation of these basic rights to its citizens.

However, the opinion of English and American authors is that the distinction between the
constitution law and administrative law is the one of degree, convenience and custom rather than
logic and principle, it is not essential and fundamental in character 33.

2.3 Applicability of Constitutional law and Administrative law, Constitution is the supreme law
all laws enacted must abide to the constitution. It applies in all matters in executive, judicial and
legislature. Also in the various rights that is fundamental rights of the citizens of a particular
country. Administrative law applies in the administrative matters. It sets out functions and
organization of the government in motion. It is applicable in administration on how the power to
be executed, how to exercise power or duties, limits of their power and the rights of individual is
provided by the law and the liabilities of various organs of the government.

In the case of Blencoe v British Columbia (Human Rights Commission)34, it stipulate that it is
preferable to resolve a matter on administrative law grounds where possible without resort to the
charter (constitution). However where administrative law challenge arose in the context of a
claimed violation of a constitutional law, a constitutional analysis became primary. Also article
64(5)35 stipulates that if there is conflict with the provisions of the constitution and any other
law. The constitution shall prevail and that other law shall be void.

3.0 From the analysis above facts, it is generalized that there is no clear cut differences between
constitutional law and administrative law. That is why it is suggested to be one branch of law
rather than each independent. Keith Basu 36 said that „‟it is logically impossible to distinguish
administrative law from constitutional law and all attempts to do so are artificial. Administrative
law limits administrative discretion, provides for the control of administrative action and creates
remedial rights against administrative authorities all must be done by the power conferred by the

32
Jain, M.C (2002). The Indian Administrative law , pg 14
33
Takwani C.K,(2002) Lectures on Administrative law, Pg 13
34
[2000] S.C.J no 43
35
The constitution of the united republic of Tanzania of 1977
36
(1996) Administrative law. P.1
constitution. Therefore it can be stated that there is no fundamental distinction between
constitutional law and administrative law because as far as history is concerned the two aspects
where in one aspect of constitutional law, but as time changes then the two terms started to work
separate.
3.0 REFERENCES

List of statutes

The Constitution of United Republic of Tanzania of 1977 as amended from time to time
The Local Government Act no 9 of 1999
The Local Government Finance Act [CAP 290 RE 2002]
The Public Service Act of 2002
The Public Service Regulation Government Notice no 168 of 2003

The Public Service Scheme Government Notice no 169 of 2003

The Ward Tribunal Act [CAP 206 RE 2002]

List of Cases
Blencoe v British Columbia (Human Rights Commission) [2000] S.C.J no 43

Chumchua s/o Marwa v Police Officer in charge of Musoma Prisoner & Attorney General High
Court of Tanzania at Mwanza. Miscallenous criminal cause no 2 of 1988
Said Juma Shekimweli V Attorney General [1997] TLR 3

Books
Jain MP & Jain S.N (2005) Principle of Administrative law 4th Ed, Smt. Rampyari Wadhwa for
Wadhwa and Company Law Publishers; New Delhi

Philips O.H and Jackson (1987) Constitutional and Administrative Law, 7th Ed. Sweet and
Maxwell: London

Takwani, C.K, (2004) Lecturers in Administrative Law, Eastern Book, Company Lucknow.

Wade, H.W.R and Forsyth, C.F. (1993) Administrative Law, 7th Ed, Clerendon Press, Oxford
 MZUMBE UNIVERSITY

FACULTY OF LAW
SUBJECT: ADMINISTRATIVE LAW I

SUBJECT CODE: LAW 226

CLASS: LL.B II - 2012/2013

NATURE OF THE WORK: GROUP ASSIGNMENT

MEMBERS REG. NO.

MPONEJA NTUGWA SHINYANGA.......................................14021/T.11

WILBERD, JOHANNES MBATINA.........................................14035/T.11

URIO .J.JANETHMARIA..........................................................14017/T.11

PAMBE.D.DOREENE................................................................14158/T.11

TITUS SAID................................................................................19933/T.11

WASHEN MICHAEL..................................................................14181/T.11

MARY SAMSON.........................................................................14025/T.11

ELISIA PAUL..............................................................................13953/T.11

KUYUNGA MUGETA YANGO................................................14140/T.11

CAROLINE NDOSY....................................................................13978/T.11

QUESITION 3;

“In the administration of government in this country the functions which are given to ministry
are function so multifarious that no minister could ever personally attend to them.....the duties
are normally imposed upon ministers; however other officials of the department normally
exercise the powers given to ministers under authority of the minister.....Constitutionally, the
decision of such an official is of course the decision of the minister, and the minister is
responsible‟ Lord Green MR in Carltona Ltd v Works commission [1943] 2 ALL ER 560, CA. P
563.in the right of this authority, discuss the application of the alter ego theory in Tanzania.
 OUTLINE

1.0 Introduction

1.1 Overview of the question

2.0 Main discussion

2.1 The alter Ego Theory

2.2 The concept of ministerial responsibility

2.3 The application of the alter ego theory in Tanzania

2.4 Weakness

3.0 Conclusion

4.0 References
1.0 Introduction

1.1 Overview of the question

In this discussion the main discussion will be on the application of the alter ego theory in relation
to the case of Carltona Ltd v Commissioners of Works37 as the building foundation to the
application of the Alter ego theory in Tanzania. In a normal situation the one who is vested with
a particular statutory power must exercise it personally rather than delegating it, but in the case
ministers practically they cannot perform all their functions as they are so multifarious. So civil
servants of different departments in different ministries are there for assisting the ministers
responsible. However they are responsible for everything done in their respective ministries.

In the case of Carltona Ltd v Commissioners of Works38 the plaintiffs raised a judicial review
action against a requisition order as to challenge its legality. During that time the commissioner
of works was authorised to requisite land when it sees fit for the national interests. However it
was specified that the Commissioner's powers were exercisable by, inter alia the Minister of
Works and Planning. As the order was not personally signed by the minister responsible, the
factory sought to argue that the requisition was not valid. The court, under Lord Greene MR
accredited the reality of governments of the time and ruled in favour of the defendants as he is
quote in his own words saying:

“In the administration of government in this country the functions which are given to
Ministers (and constitutionally properly given to Ministers because they are
constitutionally responsible) are so multifarious that no Minister could ever personally
attend to them. To take the example of the present case no doubt there has been
thousands of requisitions in 126 this country by individual ministries. It cannot be
supposed that this regulation meant that, in each case, the Minister in person should
direct his mind to the matter. The duties imposed upon Ministers and the powers given to
Ministers are normally exercised under the authority of the Ministers by responsible
officials of the department. Public business could not be carried on if that were not the
case. Constitutionally, the decision of such an official is, of course, the decision of the

37
[1943] ALL ER 560
38
Ibid
 Minister. The Minister is responsible. It is he who must answer before Parliament for
anything that his officials have done under his authority, and, if for an important matter
he selected an official of such junior standing that he could not be expected competently
to perform the work, the Minister would have to answer for that in Parliament. The
whole system of departmental organization and administration is based on the view that
Ministers, being responsible to Parliament, will see that important duties are committed
to experienced officials. If they do not do that, Parliament is the place where complaint
must be made against them.”

Although not explicitly said, the alter ego theory was used by the court to reach their final
decision.

2.0 Main discussion

2.1 The Alter Ego Theory

Alter ego is the Latin maxim which means “the other I” or „the second self’, the other I is a
distinct from a person‟s normal or original personality. This theory is used in different
disciplines of law among others being, corporate law, criminal law and administrative law. In
administrative law the alter ego means that the minister as the head of the ministry and
departments is responsible for each and everything done by third parties (other than him) in the
ministry regardless of the fact that he authorised them to do so or not. The respective minister is
answerable before the parliament for the decision made by officials under his ministry. Since the
Ministers have multifarious function The Transfer and Delegation of Power Act 39 provides them
with powers to delegate powers to any person to perform any duty vested in him by written law.
But it is not all duties are delegable, such duties which are not delegable include duties conferred
or imposed on him by the Constitution, make rules or to hear appeals and those which he is
expressly prohibited from delegating by any other laws40

2.2 The ministerial responsibility

39
Section 3 (1) (a)[ CAP 362 RE 2002]
40
Ibid section 4 (1)(2)
Powers of the central government are normally centred upon ministers themselves and the
department s that they exercise in the ministers‟ names41. Ministers are responsible, both legally
and politically for everything which occurs in their areas of responsibility, including decisions
and actions taken by civil servants under their ministries. That is what is referred to be
ministerial responsibility. According to Lord Morrison viewed that;
“... a minister is accountable to Parliament for anything he or his department does or for
anything he has powers to do, whether he does it or not. That is to say, if the action or possible
action is within the field of ministerial power or competence, the minister is answerable to
Parliament.42”
Also the concept of ministerial responsibility has been introduced in the constitution of the
united republic of Tanzania of 1977 as it has been amended from time to time. Article 53(1)43
provides that; “Subject to the provisions of this constitution, the prime minister shall be
accountable to the president”

The concept of ministerial responsibility has been divided into two major categories, that is,
collective ministerial responsibility and individual ministerial responsibility. Collective
ministerial responsibility is provided under Article 53 (2)44 which inter alia provides that
“ministers under the leadership of prime minister shall be collectively responsible in the national
assembly for execution of the affairs of the government of the united republic”.

This discussion will not focus on collective ministerial responsibility rather individual ministerial
responsibility.

Individual ministerial responsibility has been provided under article 63 (3)(a) (b)45: that

“For the purposes of performing its function, the national assembly may, ask any
question to any minister concerning public affairs in the united republic which are within
his responsibility and debate the performance of each ministry during the annual budget
session of the national assembly”

41 th
Wade, H.W.R. and Forsyth, C.F. (2004), Administrative Law. 9 Ed.
42 th
Hilaire Barnett, (2002). Constitutional & Administrative Law 4 Ed. Cavendish publishing Ltd London
43
The Constitution of The United Republic of Tanzania 1977
44
Ibid
45
Ibid
Individual ministerial responsibility has been divided into two categories. The first category is
where the minister is responsible for his own misconduct or fault. And the second one is that of a
minister being responsible for misconducts done by officials or civil servants in the course of
performing their duties under his ministry.

2.3 The application of the Alter Ego theory in Tanzania

The applicability of alter ego theory in Tanzania has been verified and explained in the quotation
of the late Mwalimu Nyerere;

Most important of all members must not under any circumstances attack a member of the
civil service in this house. If they believe a civil servant is acting wrongly and that
injustice is in consequence being done it is the minister whom members must call to
account.. Then it is his task to investigate and if necessary, to invoke the disciplinary
procedures against the government servant 46

The alter ego theory suggests that civil servants should not be attacked directly; instead the
respective minister is answerable for all the wrongs done in his ministry, as explained in the
above quotation. There are grounds for not attacking civil servants are;

It ensures a better machinery of public administration. It must be realised that usually

complaints are not made in terms of personalities in the civil service but on the facts of the case
involved and further more the minister does not regard himself as bound to extend total
protection to his officials or even endorse all their actions. While anonymity of the official is
(may be) preserved, there is the minister to who queries may be directed, who may not evade the
duty of answering them.

Administrative justice demands some regular, efficient and non-political system of investigating
individual complaints. However this creates a problem as often there is no further investigation
on the matter after the minister respond to it. To meet this problem in Tanzania, there are
different commissions that have been established with a duty to investigate and report on
citizens‟ complaints against the administration and parastatal organization, among them being
the Commission for Human Rights and Good Governance which among its function being that of

46
Nyerere, J.K. “Freedom and Socialism” (1969), p 94, as quoted in Oluyede…. P.28
inquiring on matters patterning abuse of power and misconducts of any person or institution
including government officials as stated below.

The Commission shall conduct inquiry in accordance with the provisions of this Article
and of any law enacted in that behalf by the Parliament, and shall inquire into the
conduct of any person concerned or of any institution concerned whenever the President
directs to conduct inquiry; likewise, except as the President directs the Commission not
to conduct investigation the Commission may conduct investigation whenever it deems
necessary to inquire into the conduct of any person concerned, or any institution
concerned with the provisions of this Article who is suspected or which is suspected to
have abused the authority of his office, misused the authority of his office or the functions
of such institution or for violation of human rights and principles of good governance.47

Also it has been stated that:

Inquire into the conduct of any person concerned and any institution concerned in
relation to the ordinary performance of his duties or functions or abuse of the authority
of his office48

Also by the virtue of the same article (1) (c), the said commission is entitled to conduct inquiry
on matters relating to violation of principles of good governance and others.
The theory of alter ego can be witnessed in Tanzania as ministers are responsible for
everything going on in their ministries and they are subjected to respond to all questions asked in
the parliament concerning their ministries. Sometimes ministers may resign when they fail to
explain or justify misconducts in their ministries. This is supported by different matters that have
risen. These cases were;

The former President Ali Hassan Mwinyi, while he was a Home Affairs Minister. In a charge of
witchcraft in Mwanza, a lot of people died under torture while they were being investigated
under police custody. Through investigation, the police used dirty methods of torture. He
resigned under the doctrine of Individual Responsibility in 1974.

47
The Constitution of The United Republic of Tanzania of 1977 Article 130(4)
48
Ibid article 130(1) (f)
Another recently matter is that of Hon. Margret Sitta, when she was a Minister of Education and
Culture there was leakage of NECTA exams in the year of 2006 and so, as a minister was
accountable to the parliament and when she was asked to justify, she had to do so although she
was not the one who caused the leakage of exams.

2.4 Weakness
The applicability of alter ego theory in Tanzania has some weaknesses, these weaknesses are as
follows;
It leads to irresponsibility to the public servants, this is because they know that they are doing
wrongs within their departments but still not responsible for their wrongs caused, this creates a
great problem to the officials of being irresponsible and not taking good care for ensuring good
administration when performing duties in their particular departments, and instead ministers are
being responsible.
Another weakness of the applicability of the alter ego theory in Tanzania is that, ministers
thought that it is for their own misconduct or fault which can mount to their responsibility but
not for the misconduct which has been caused by the officials under their ministries. For
instance, Transport minister Mr Omari Nundu, said he would not resign because he had done
nothing wrong to warrant the move.
There is a presumption in Law that, every adult person should be accountable and responsible for
his actions49. The fact that ministers are accountable for the acts or misconducts of their officials
under their departments does not guarantee justice.

3.0 Conclusion
Therefore the theory of alter ego is applicable in Tanzania to limit the misconducts and abuse of
powers done by ministers who fail to supervise their subordinates, and also promotes
accountability on the part of the ministers. The fact that the ministers which are the part of
executive to be accountable for their misconduct and misconducts of their officials under their
departments before the parliament guarantees for the so called check and balance as the
parliament as an independent organ check and balances the function of the executive which is

49
Kazungu Lushinge v Juakali Degulla [1986] TLR 98 (HC) Mwanza
also the independent organ, as it has been provided under the constitution of the united republic
of Tanzania as it has been amended from time to time.
4.0 BIBLIOGRAPHY
STATUTES
The Constitution of the United Republic of Tanzania of 1977
The Transfer and Delegation of Powers Act [CAP 362 RE 2002]
CASE
Carltona Ltd v Commissioners of Works [1943] ALL ER 560
Kazungu Lushinge v Juakali Degulla [1986] TLR 98 (HC) Mwanza
BOOKS
Hilaire Barnett, (2002). Constitutional & Administrative Law 4th Ed. Cavendish publishing Ltd:
London
Nyerere, J.K. Freedom and Socialism (1969)
Phillips O.H. and Jackson,(1965)The Constitutional and Administrative Law, 8th Ed. Sweet
&Maxwell: London
Wade H.W.R& C.f.Forsyth (2004), Administrative law,”9th Ed. Sweet & Maxwell: London.
OUTLINE
INTRODUCTION
The meaning of alter ego theory
The case of Carltona Ltd v Commissioners of Works
MAIN DISCUSSION
CONCLUSION
 MZUMBE UNIVERITY

FACULTY OF LAW
COURSE: LL. B II

YEAR OF STUDY: 2012/13

SUBJECT: ADMINISTRATIVE LAW I

SUBJECT CODE: LAW 226

NATURE OF WORK: GROUP PRESENTATION

PRESENTERS:

1. MAHAMI, ADULHAMIDU S. ....................................... .13982/T.11

2. MAHINYA, AMEDEUSY ............................................... 14175/T.11
3. MANDIA, AGNES F. .................................................... .13980/T.11
4. MBALAMWEZI, ERNEST ............................................. .12207/T.10
5. MGANGA, MODESTER S. ............................................. 14044/T.11
6. MJALILLA, FAITH M. .................................................... 13991/T.11
7. MKONYA, ELICY L. ..................................................... .13934/T.11
8. MMARY, ADELINE ........................................................14004/T.11
9. MNYAWAMI, EDMUND ............................................ ....14027/T.11
10. MOMBURY, NICHOLAUS L. ....................................... ...14047/T.11

QUESTION:
The doctrine of Rule of Law is not a product of single factor. It is a combination of multiple
factors when dealt together they clearly distinguish authoritarian government from democratic
government. Discuss.

OUTLINE

INTRODUCTION

-Meaning and concept of rule of law

DISCUSSION

-Meaning of authoritarian government

-Meaning of democratic government

-Factors of rule of law which distinguishes a democratic government from authoritarian

government.

.Separation of power

.Independence of judiciary

.Bill of rights

.Parliamentary supremacy

.Judicial review

-Challenges on the application and development of the doctrine of the rule of law

CONCLUSION
1.0 INTRODUCTION

Being one of the basic constitutional principles, historically, Rule of law was introduced by Sir
Edward Coke50 as a concept when he was a chief justice during King James I was on the throne.
This was against the king, he maintained succesfully that the king should be under God and the
law, and he established the supremacy of the law against the executive. There after Dicey
developed this theory, and according to Dicey Rule of law is one of the fundamental principle of
English legal system, where the doctrine comprises of three elements, that is, supremacy of law,
equality before the law and predominance of legal spirit. 51

The Rule of law has number of meanings but generally rule of law means that Government
should be conducted within a framework of recognised rules and principles which restrict
52
discretionary power. This means that everything must be done according to law, Government
should not exercise its discretionary powers to the extent that it breaches its boundaries on
limitation of its powers hence the liberty of every individual being at jeopardy

Traditionaly, Rule of law has been taken to denote absence of arbitrary powers and therefore
one can denounce the increase of arbritary or discretionary powers of the administration and
advocate controlling it through procedures and other means. It is under the principle of the Rule
of law, that courts have power to intervene and control administrative action, thus judicial
control is the pivot of administrative law to date. Under Rule of law Executive is regarded as not

50
He was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and
Jacobean eras(1 February 1552 – 3 September 1634)
51
C.K.Takwani (2003) Lectures on administrative Law, p. 17
52 th
Wade and Forsyth (2006) Administrative Law,9 ed p. 20
having any inherent powers of its own but all its powers flow and emanate from the law and this
principle plays a vital role in a democratic Government.53

This discussion concerns the rule of law and factors which indicate the existence of rule of law
in any democratic society contrary to authoritarian system of government. Throughout this
discussion we will be basing on argument that rule of law cannot stands on its own but with other
factors which distinguish democratic government and authoritarian government in relation to
rule of law

2.0 DISCUSSION

In the modern societies practising democracy, one of the tools to control administrative action is
through the Rule of law and it has been endorsed by every state around the world since it is
intimately connected with human dignity and liberty and administrative law is the area where
this principle has to be seen in its most active operation due to many rules confered is to restrict
wide power of ministers and other authorities. Here by authoritarian government, means, a form
of government based on the principle of requiring obedience to the authority of one person or
small group of people54. This implies that other people must be obedient to the will of the
government and they have little or no influence over the decisions made by the government. On
the other hand, in a democratic government, individual citizens have the power, and the right, to
influence decisions made about how their country will be governed 55. Citizens have the political
right to say and write what they wish, to go where they please, to live in privacy and security and
to not be arrested or imprisoned without due legal process. Rights of citizens in a democratic
government are protected under a constitution, or by-laws, defining how the country will be
governed.

53
E.E.Mndeme Administrative Law Teaching Manual
54
http://wiki.answers.com/Q/What_is_an_authoritarian_government. (accessed on 24th December, 2012)
55
http://weiboyz.com/aristuff/school/ari06/democracyVauthoritarian.pdf (accessed on 24th December, 2012)
Turning back to our question, it is affirmatively accepted that the doctrine of rule of law is a
combination of multiple factors when dealt together, clearly distinguishes authoritarian
government from democratic Government.

Separation of power, is all about distribution of functions of the Government under three
pillars, that is to say, the executive has no right to execute the law and also judiciary should not
exercise the functions of the other two pillars. 56 However, the whole the doctrine of separation of
powers in its strict sence is undesirable and impractible and therefore it is not fully accepted in
any country. Nevertheless its value lies in the emphasis on those checks and balances which are
necessary to prevent an abuse of enormous powers of the executive. For example in the case of
AG v.Lohay Akonaay and Another57 where it was stated that

“Its object (separation of power) is the preservation of political safeguards against the
cuprecious exercise of poers and incidentally it lays down the broad lines of unefficient
division of functions. Its logic, is the logic of polarity rather than strict
clasification....the great and of the theory is,by dispensing in some meassure the center
of authority, to prevent absolutism”

The objective of the doctrine is to have a Government of law rather than the official will or
whim. Montesquieu‟s great point was that if the total power of Government is divided among
autonomous organs, one will act as a check upon the other and in the check liberty can survive.
Again, almost all the jurists accept that the most important aspect of the doctrine of Separation of
powers is judicial independence from administrative discretion. It shows that inorder to have
Rule of law you must have separation of powers, for example in the case of Mwalimu Paul John
Muhozya v. A.G58,the issue was separation of power and the court held that the balance of power
between the three branches of government namely the legislature, executive and judiciary and
the relation of the court to the other branches must be carefully maintained.....one branch of
Government should not usurp the powers of another branch. There is no liberty if the judicial
power be not separated from the legislative and the executive under Article 459 provides the
doctrine of separarion of power for prevelence of rule of law. That is how a democratic

56
Op. Cit, C.K. Takwani
57
[1995] TLR 80
58
[1996] TLR 130
59
Of the Constitution of United Republic of Tanzania,1977
government behaves, as it is supposed to observe the separation of powers to its three organs of a
government. However, when it comes to an authoritarian kind of a government, one can clearly
see from its way of conduct that in an authoritarian kind of government, there is no observation
of separation of powers. All powers are centred on one person or a group of people, or where the
are three organs, all are subject to the commands made by one person or a small group of people.

Independence of judiciary, is the other factor for the true existence of rule of law , that is to say
the existence of rule of judiciary which administer justice accordingly must be independent from
the executive and legislature, political and individual influences. The courts are supposed to
administer justice basing on the knowledge of the law, experiance of the law and only on the
provisions of the constitution and other guiding laws, it has to be free to administer justice in
accordance to law.60 The only tool to achieve judicial review which is active and meaningful is
only when judicary is independent as it was observed in the case of V.G Chavda v The Director
of Immigration Services61, in which the court held that the high court has power to grant an
interim interlocutary injuction before hearing an application fo leave for a prerogative order even
against a decision of the Government. In this case, the court of Appeal of Tanzania widened the
scope of administrative law in Tanzania, hence the true picture of multiple factors for existence
of the doctrine of Rule of law. Broadly speaking there is no way out the state can experience rule
of law if no independence of the judiciary which administar justice in according to law. Article
107B62 provides for the independence of judiciary in Tanzania and what it is supposed to be and
this was also provided in the case of Hamisi Masisi and six others v. Republic63 where it was
held that the move was whole unjustifiable because having decided to take the applicants to the
court of law, then only the rules applicable in the administration of justice become applicable and
in the application the court concerned should not be under any influence or pressure from any
quarter, in other words the entire judicial machinery, the prosecution, the defense, the court and
the subject of the proceedings.... should be free from harrassment howerever well intentioned.
This is the meaning behind the concept of the indepence of judiciary.

60
Op. cit Wade and Forsyth
61
[1995]TLR 125
62
ibid
63
[1985]TLR 24
It is in a democratic governed state where one can find the elements of independence of judiciary
while under authoritarian government, due to the nature of its rule, the judiciary can not be
independent as every decision is done under the authority and directives of the person in power.

Bill of rights. Bill of rights as constitutional principle is another factor for expansion and
development of the doctrine of rule of law, as it appears it makes distiction between democratic
and authoritarian government. Such doctrine manifest in democratic goverment as the tool of
protecting human rights. Since human rights flows directly from the constitutional principle of
the rule of law, the sovereignty of the parliament and the independence of judiciary and it does
much to determine the balance of power between the state and the citizen, that is to say for the
existance of basic human rights courts of justice are vital engine for the existance of rule of law,
so the preverence of human rights as provided under constitution intends to expand and develop
the doctrine of rule of law under the shadow of judiciary as it was stated in the case of Rev. C.
Mtikila v. The Editor of Business Times and Agustino Lyatonga Mrema 64 where it was held that
there is no legislation which expressly or by necessary implication takes away rights of a citizen
or other person enjoying the protection of the law of this country to sue a government‟s servant
or agent who in the course of his official duties, has allegedlly commited a tort against him. Also
in the case Rev. C. Mtikila v. A.G65 it was held that if there is existance of a law, the oparation of
which is likely to contravine the basic right is against Article 30(3)66 so saying the candidate has
no locus standi is to infringe his right. On the other hand, under authoritarian government, there
is minimum or no observation at all of human rights. This further means, there is little or no
freedom of speech, and no freedom of assembly,that is, inability to hold meetings without the
approval of the government.

Parliamentary supremacy, it is also an important factor for prosperity of the doctrine of rule of
law; supremacy means that the parliament is the only organ which has power to make and
unmake laws, and that it can not be interfeared by any external force. However due to the
development of administrative law, now there are other organs which can make, unmake and

64
[1993] TLR 60
65
[1995] TLR 31
66
The Constitution of the United Republic of Tanzania
challenge the laws made by the parliament, though the supreme body is still the parliament. This
doctrine means more because through its power, the parliament may make or unmake laws. If the
unjust law is enacted then there is no way out rule of law can exist in any state, this simply
means parliament must make laws which are not against the constitution which is the only tool
declaring superiority of any organ and the source of all other principles. So up to that juncture it
should be bear in mind that the parliamentary Acts are subjected to be declared unconstutional
by the judiciary if are contrary to constitution as it was provided in the case of Chumchua Marwa
v Officer Incharge Of Musoma Prison and A.G67 where the Deportation Ordinance was
declared unconstitutional..........the court went further by explaining what the rule of law means,
as per Mwalusanya, J. (as he was then) ..observed that “the rule of law means more than acting
in accordance with the law. The rule of law must also means fairness of the government. The
rule of law should extend to the examination of idea; and that the law does not give the
government too much power. The rule of law is opposed to arbitrary power. The rule of law
reqiures that, the government should be subject to the law rather than the law subject to the
government. If the law is enough to justify dictatorship there is no rule of law.

Unlike under authoritarian government, the parliament may be present, but having no force as to
the laws they are making. This means that, the one in authority is the one who will determine
which law to be in force and which one not to be and at what time, and it is at this juncture that
under the authoritarian government the parliament is not a supreme body when it comes to
making and unmaking laws and therefore affecting the existence of the doctrine of rule of law in
such a government.

Judicial review

The concept of judicial review means review by the High Courts of administrative actions which
a view to ensure their legality. In other words judicial review means that the mechanism by
which a relatively open organ of the state(the judiciary) can bring to light and, to some limited
extent, redress the abuse of power and authority committed by other organ of the state and
public officials 68. For example in Tanzania the High Court reviews the decisions of the

67
Misc. Crim. Case No 2 of 1988 HC Mwanza Registry (unreported)
68
Shivji,I.G,Development in Judicial Review in Mainland Tanzania, a paper presented in judges’ course on
Constitutionalism and Human Rights, 1998
administrative bodies and states in exercise its supervisory jurisdiction 69. This is one of the factor
which indicate that any democratic government observe the rule of law and principles of the
constitution of the country and it is contary to the authoritarian government where a single
person has unchalllengeable powers which cannot be reviewed or questioned by any organ in the
country.

Challenges on the application and development of the doctrine of rule of law

That being the case in most cases the most of the factors for prevalence of rule of law also acts as
barriers for expansion of the rule of law in many countries, for example if the doctrine of
separation of powers is applied in a strict way it is obviously impossible to take certain actions.
This means if the legislature can only legislate then it can not punish anyone committing a
breach of its privilage, more can it delegate only legislative function even though it does not
know the details of the subject matter of the legislation and the executive authority has
experienced over it nor could the court frame rules of procedures to be adopted by them for the
disposal of cases. Modern states are the welfare states and its have to solve many complex social
economic problems and in these states of affairs also it is not possible to stick to this doctrine as
justice Frankfurther said and`enforcement of a rigid conception of separation of powers would
make modern Government impossible , strictly separation of powers is a theorical absurdity and
practical impossible‟.

Also parliamentary supremacy is the other obstacle to the rule of law , that is to say when you
talk about rule of law it means judiciary should be free but when the judicial review is not
exercised in a manner it is supposed to be then it is against the rule of law. Judicial review is the
only strong tool the judicial use to control the administrative actions. The Acts of parliament
powers the jurisdiction of the court and exclusion clause are all about restricting the prevelence
of the rule of law as it was in the case of Haruna S/O Nchama and Another v. Republic70, where
Mwaikasu J. held that at this juncture I must point out that this appeal was wrongly admitted the
act complained of was principally an administrative once his enquiry is final and therefore
cannot be appealed against it is only by way of an application for judicial review that the order

69
See section 2 of JALA[Cap 458 R.E 2002]
70
[1982] TLR 274
complained against could be challenged for illegality or want of jurisdiction therefore such
prerogative orders could then issue in respect of such order of the lower court

CONCLUSION

In generally the rule of law cannot be taken by its own but with support from other factors as
mentioned in our discusssion, it is common that countries which follows rule of law are the
countries under democratic system but by the other side we can say this is not constant as
sometimes the democratic government can change to authoritarian ruling system for instance the
country under democratic ruling system when undergone the COUP D′ ÉTAT71 it tend to
change its status from democratic government to authoritarian government, same situation might
happen in authoritarian government for instance when the person or group of people who hold
power of the state when decide to held a democratic election hence the status of such
authoritarian government tend to change to democratic government.

BIBLIOGRAPHY
STATUTES
The Constitution of the United Republic of Tanzania of 1977

CASES
A.G. v. Lohay Akonaay and Others [1995] TLR 80
Hamisi Masisi and Others v. Republic [1985] TLR 24
Harun s/o Nchama and Another v. Republic [1982] TLR 274
Mwalimu Paul John Mhozya v. A.G[1996] TLR 130
Rev Christopher Mtikila v. The Editor, Business Times and Augustine Lyatonga Mrema
[1993] TLR 159

71
the sudden, illegal deposition of a government, usually by a small group of the existing state establishment—
typically the military—to depose the extant government and replace it with another body, civil or military. A coup
d'état is considered successful when the usurpers establish their dominance. When the coup neither fails
completely nor succeeds, a civil war is a likely consequence.
Rev. Mtikila v. Attorney General [1995] TLR 31
V.G. Chavda v. Director of Immigration Services [1995] TLR 125

BOOKS
Phillips, O.H. (1987) Constitutional and Administrative Law in East Africa, E.A.L.B, Dar es
Salaam
Shivji, I.G., et al, (2004) Constituttional and Legal System of Tanzania, Mkuki & Nyota
Publishers Ltd, Dar es Salaam.
Takwani, C.K. (1998) Lectures in Administrative Law, East Book Company, Lucknow
Wade, E.C.S. and Bradley, A.W. (1993) Administrative Law, 7th ed. Clarendon Press, Oxford

OTHER SOURCES
http://weiboyz.com/aristuff/school/ari06/democracyVauthoritarian.pdf (accessed on 24th December, 2012)

http://wiki.answers.com/Q/What_is_an_authoritarian_government. (accessed on 24th December, 2012)

 MZUMBE UNIVERSITY

FACULTY OF LAW

COURSE: LL.B 1
SUBJECT: ADMINISTRATIVE LAW.

SUBJECT CODE: LAW 226.

NAME OF STUDENTS: REG. NO.

COURSE: LL.B 1

SUBJECT: ADMINISTRATIVE LAW.

SUBJECT CODE: LAW 226.

NAME OF STUDENTS: REG. NO.

ALLY, RAMADHAN HASSAN 14028/T.11

EMMANUEL ZACHARIA 14057/T.11

DIANA DAMSON 14000/T.11
JACKSON DORCAS 13967/T.11
OSCAR KALESI 14024/T.11
AKARO FRIDA. A 13959/T.11

MLELE VICENT 14151/T.11

LIBENA DORICE 13944/T.11
MAGRETH MAZARA 14033/T.11
DATE OF SUBMISSION: 07/01/2013

TASK: GROUP ASSINGMENT.

DATE OF SUBMISSION: 02/01/2013

QUESTION. Enforcement of Human Rights in Tanzania is far from being satisfactory. Despite
entrenchment of the Bill of Rights in the Constitution, we still lack effective institutional and
legal framework to guarantee protection of Human Rights in Tanzania .

OUTLINE:

INTRODUCTION
 Ideal Meaning of human rights
 Brief history of human rights

MAINBODY
 Positive state obligation on human rights
 Legal framework of human rights enforcement in Tanzania and its
ineffectiveness
 Institutional enforcement of human rights in Tanzania and its ineffectiveness
 Recommendation
 Success of human rights enforcement in Tanzania

CONCLUSION

BIBLIOGRAPHY
INTRODUCTION
Human Rights are rights inherent to all human beings whether our nationality, place of
residence, sex, Nationality or ethnic origin, color, religion, language, or any other status we are
all equally entitled to our human rights without discrimination 72. Human Rights are derived from
the principles of natural justice. They are traditionally known as natural rights, these may be
defined as moral rights which every human being, everywhere, at all times, ought to have simply
because of the fact that he is a human being. No man may be deprived of these rights without
grave affront to justice.73 They are neither derived from the social order nor conferred upon
individual by the society. They reside inherently in the individual human beings independent of
and even prior to his participation in the society consequently they are the result of recognition
existence. Their existence may be sought in the natural law and not in positive law. They are
based on intrinsic justification and not on enactment or accepted authority. 74
Human rights are inalienable, human person possesses rights because of very fact that it is a
person, a whole, a master of itself and of its act….by natural law, the human person has the right
to be respected, is the subject of rights, possesses rights, these are the things which are ousted to
man because he is a man.75 Justice Lugakingira in the case of Rev. Christopher Mtikila v. A.G76
stated that fundamental rights are not gifts from the state they are inherent in a person by reason
of his birth.
The history of human rights got universal acceptance during 20 th century after World War
I by the Universal Declaration of Human Rights of 1948 (UDHR) but most of the Rights under
Declaration are civil political rights with minimum of economic, social and cultural rights. In
72
United Nation Human Rights Commission
73
Ezejiofor Gaius, (1964) Human Rights Under The Law, p. 3
74
Vide Carlos (1991) The Ethics of Human Rights, Clarindon press, Oxford pp, 10, 24
75
Anand V.K & P.K (2005), Human Rights Man, Allahabad Law Agence
76
In the High Court of Tanzania at Dar es Salaam Main Registry Misc. Civil Cause No 10 of 2005 (Unreported)
Tanzania the entrenchment of Bill of Rights in The Constitution of United Republic of Tanzania
of 197777 (hereinafter referred to as Constitution) was done in 1984 but became enforceable in
March 1988 by virtue of the provisions of s 5(2) of the Constitution (Consequential, Transitional
and Temporary Provisions) Act 16 of 1984.

MAINBODY
In dealing with human rights the state has four positive obligations which include; protecting,
fulfilling, respecting and providing human rights. In respecting each and every state has an
obligation of entrenching human rights in their constitution, in the matter of protecting, each
state has the obligation of protecting the human rights through institutions created by that state,
the state also has the obligation to provide the rights to its citizens disregarding the gender, tribe,
color or race. The state is also obliged to fulfill all the decisions reached by the institutions that
are set to protect human rights.
Despite the entrenchment of bills of rights in The Constitution of United Republic of Tanzania,
we still lack effective institutional and legal framework to guarantee protection of Human Rights
in Tanzania. The discussion below attempts to explain how the enforcement of human right in
Tanzania becomes difficult though there are institutions and legal frameworks which are
supposed to be making the enforcement much easier.
Legal framework. Universal human rights are often expressed and guaranteed by laws,
in the forms of treaties, customary International law, General principles and other sources of
laws. The laws lay down obligation to the government to act in certain ways or refrain in certain
ways as to protect human rights and fundamental freedom. 78
The Constitution is the fundamental law to protect human rights in Tanzania. In the
United Republic Constitution; there is a bill of Rights that explains on the basic human rights and
duties that lies within Article 12 and 29. There is The Basic Rights and Duties Enforcement Act
which gives the procedures in enforcement of human rights; and also there is The Commission of
Human Rights and Good Governance Act which gives the procedure and enforcement of human

77
The Constitution of United Republic of Tanzania of 1977 as amended time to time
78
United Nations Human Rights accessed at http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.
rights through the Commission. However, this legal frame work has been ineffective in enforcing
human rights.
Starting with the Constitution as a legal framework; Article 30 (5) of the Constitution
provides that when High Court declares that any Act violates human rights, to that extent that
Act is declared unconstitutional, then such law or Act shall continue to be valid until it is
corrected by appropriate authority or until the expiry of the period prescribed by the Court for
such correction. 79 Here Constitution does not give a chance to the Court to amend the law which
violates human rights. There are many laws which the Court had declare unconstitutional and
still applicable to date example in case of Rev. Christopher Mtikila v. A.G80 where amendment of
Constitution Article 39 (c) declared to be unconstitutional and yet applicable to date.
Also the Bill of Rights in the Constitution provides less on economic – socio and cultural rights.
Article 12 to 21 provides for civil and political rights leaving just two Articles which provide for
economic rights which is insufficient compared to the economical need of the society. Through
these citizens have less access on matters relating to social cultural economical values in
enforcing them in the institution that deals with human rights.
The Constitution has a lot of claw back clauses which hinder full enforcement of human rights.
The Constitution tends to give the rights in the left hand and taking them in the right hand. For
example Article 32 (2) of the Constitution contain general restriction; first, on the freedom of
individual on ground of ensuring that rights and freedoms of others are not prejudiced by misuse
of the individual rights and freedoms and, second restrictions of rights in order to enable things
to be done which enhance or protect national interest in general. However the term of national
interest is vague as it may not be interpreted anyhow. Depending on whether the relevant judicial
officer is bold or not as it was said in the case of A.G of the Bahamas v. Ryan81 statutory
provisions have to state explicitly what are public interests all matter of national interests or
security.
Use of derogative clauses; these are clauses provided under Article 31(1) of the
Constitution that enable the government to take certain measures during the state emergency or
in normal times in relation to persons who are believed to engage in activities which endanger or

79
Maina Peter (1997) Human Rights in Tanzania, p.31
80
In the High Court of Tanzania at Dar es Salaam Main Registry Misc. Civil Cause No 10 of 2005 (Unreported)
81
(1980) AC 718
prejudice the security of the nation those measures make the law to be valid even if that Acts
violate human rights.
Another legal frame work which has weakness in protecting human rights is The basic
Rights and Duties Enforcement Act,82[hereinafter referred to Rights and Duties Enforcement Act]
this Rights and Duties Enforcement Act supposes to protect human rights, instead this small Act
is very destructive on the matter of human rights, due to this law, enforcement of human rights in
Tanzania has not been easy for a person who want to institute proceedings in the court
concerning violation of human rights, Section 8 of the Rights and Duties Enforcement Act
provides High Court jurisdiction to hear matter arises on Article 12 to 29 of Constitution, the fact
the High Court is the court of first instance concerning matters relating to human rights it makes
very difficult in the process of instituting proceedings or filling cases. Tanzania does not have to
High Court in every region so it becomes difficult for people especial poor who live in regions
with no High Court in the process of filling cases as they have to undergo certain extra costs to
travel from where they are to a region with High Court so as to provide their complaints and file
cases. If the subordinate courts were given power to hear and determine cases relating to human
rights it would have been much easier to enforce.
Also section 10 of the Rights and Duties Enforcement Act comes up the case of human rights to
be listen with three panel of the judge and the subsection 2 provides every question in a petition
before the High Court under this Act shall be determined according to the opinion of the majority
of the Judges hearing the petition, thus causes time wasting and determining the rights on
mitigation and long waiting is justice denial, 83 It give state opportunity to play around with
technicality of the law since the government is number one human rights violator.
Also under section 13 (2) of Rights and Duties Enforcement Act provides that when High Court
declares that any Act violates human rights, to that extent that Act is declared unconstitutional,
then such law or Act shall continue to be valid until it is corrected by appropriate authority or
until the expiry of the period prescribed by the Court. Recently this provision was applied in the
case Tanzania in Baraza la Wanawake Tanzania (BAWATA) & 5 others v. The Regisrtar of

82
Act No 33 of 1999
83
This vividly seen in the case of Rev Christopher Mtikila v A.G [1995] TLR 31where A.G rises various preliminary
objections to buy times and justice delaying techniques
Societies & 2 Others84 whereby, having determined the constitutionality of the impugned
provision of the Societies Act.
Another legal frame work that has weakness in protecting human rights in Tanzania is
The Government Proceeding (Amendment) Act,85 section 2 provides that
“No suit against the government shall be instituted, and heard unless the claimant previous
submits to the Government Minister, Department or Officer concerned a notice of not less than
ninety days of his intention to sue the government, specifying the basis of his claim against the
government, and he shall send a copy of his claim to the Attorney General”
For this section it can be clearly seen that if for instance one‟s basic rights are violated by
government itself, to sue and enforce for such claims is quite difficult though not impossible.
Such difficult in enforcement occurs in terms of the manner and time required for one to produce
such claim and get justice. This due to the fact that when a person want to sue the government,
he is first required to submit a notice to the Government Minister, Department or officer
concerned 90 days before the actual date of suit, showing his reasons and intention to sue the
government considering that such process is justice delayed and justice delayed is justice denied,
the period of 90 days is long time for one to only has access to the court to sue the government
for human rights claims. In the of case Peter Ng’omango v. Gerson Mwangwa and A.G 86 it was
held that the right of an individual for free access to the court is recognized by Constitution. Now
the Government Proceeding Act, 1967 offends the doctrine of proportionality because it is so
broad such that it denies an effective and promptly remedy to all. 87
On side of institution that has responsibility to protect and promote human rights as well as to
oversee good governance is the Commission of Human Rights and Good Governance
(CHRAGG), the Commission was established under Article 129 (1) of the Constitution. The
Commission has the duty to conduct research into human rights, to provide advice to the
Government and other public organs as well as to private sector institutions on specific issue
relating to human rights and administrative justice as provided under Section 6 of the

84
High Court of Tanzania at Dar es Salaam, Msc civil case 27 of 1997 (unreported)
85
Act No Miscellaneous Amendment Act of 1994
86
[1993] TLR 77
87
Chipeta, B.D (2009) Administrative Law in Tanzania A Digest of Cases, pp. 184-185
Commission of Human Rights and Good Governance Act of 200688 [hereinafter referred as to
Commission Act] But this Commission has been limited in the following ways
The Commission has no power to investigate or institute any proceedings against the president of
United Republic of Tanzania and president of Zanzibar as provided under Section 16 (1) of the
Commission Act. Under Constitution Article 46 and Article 36 of Zanzibar Constitution
presidents of Tanzania has immunity against any criminal proceedings and civil proceedings
even it concern human rights, hence this law has weakness in protecting people against possible
abuse of human rights by president.
The Commission has no power to investigate any matter pending before a court or other judicial
tribunal, matter including the relations or dealing between government and any foreign state or
International Organization, a matter relating to the prerogative of mercy, a matter on which the
president directs otherwise in accordance with the provisions of the Constitution. This stipulated
by virtue of Article 131 (2) of the Constitution.
The human rights institutions are supposed to be free from the organs that likely to violate
human rights. The issue of independence of Commission stipulated in Article 130 (2) of the
Constitution together with section 14 of Commission Act which state that “Except as provided
by the Constitution, the Commission shall be an independent department and the Commissioners
shall not, in the performance of their functions, be subject to the direction or control any person
or authority”. However this institution is not full free under Article 130 (3) of Constitution the
president has the power to give any directive or order in matter of national security, or public
interest. There are many examples of cases where human rights are breach by the authority in
name of national security or public interest, in case of Shabani Khamis Mloo and Other v.
Superintendent, Zanzibar Prisons.89 The examples of such serious violations of human rights are
clearly beyond the power of the Commission.
The commission as institution is free from executive, under Article 29 (3) of Constitution
that all commissioners shall be appointed by president and sub (8) the president has the power to
remove the, this serious scarcely enhances the independence of the Commission dealing their
objective of promoting human rights and good governance.

88
Act No 7 of 2001
89
[1991] TLR 21 the applicant were detained under an order of the Zanzibar President section 2 of the Zanzibar
Preventive Detention Decree No 3 of 1964 on the ground of national of inciting the citizens to disrupt peace.
 Judicial protection of Human Rights in Tanzania, The court as the institution has the
duties to protect human rights through in interpretation of law. For the judicial to be strong in
protecting human rights, it should be free from interference of the other organs, and that freedom
should be guarantee by Constitution as Lord Bingham observed “is a truth universally
acknowledged that the constitution of a modern democracy governed by the rule of law must
effectively guarantee judicial independence.”90 In Tanzania this institution suffer from lack of
judicial independence. There are judicial decisions concerning violation of human rights where
the executive has responsibility to enforce them but the executive reluctant to fulfill their
responsibility. Under the Constitution, the judges are appointed by the president and can be
removed by president for inability to discharge their duties; this arrangement is an unfortunate
one since it scarcely enhances the independence of the judiciary. The executive may appoint as
judges only persons who because of their political views can be trusted to render decisions
favourable to government and similarly, a judge may be removed for handing down decisions
which are unfavourable to the government which human rights reports show the government is
leading in abuse of human rights.
The three judges requirement, Under section 10 of the Basic and Duties Enforcement Act
there controversial requirement that obliges every human right petition to be heard by a panel of
three High Court judges. There is an exception under this provision, though to the effect that
where there is application alleging that the petition if frivolous, vexation or otherwise, the matter
may be determined by single High Court Judges. The problem with the first stage is that a pro
government judge can very easily kill basic rights matter at this stage by holding that is frivolous
and vexation. This elaborated in the case of A.G v. Mara Magori91 the court held that “all courts
of law are duty bound to take judicial notice of all constitutional and legal matters…This means
that the moment a court raises a constitutional issue in a case it cannot proceed with the matter
any longer. The matter has to be referred to the panel of three judges to hear and determine it”
Jurisdiction of the Court, there are only thirteen High court register all over the country.
The number is small compare to the demand it adduced that jurisdiction could be extended at
least to Resident Magistrate Court.

90
Cameron Edwin (2010), Judicial Independence – a Substantive Component Saturday 25 September 10h00 –
Session on Judicial Independence (unpublished) p. 1
91
Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No 95 of 1998 (unreported)
 Time required for filling the suit concerning human rights should exceed three years as,
these acts like barrier to justice. Also judge corum may not establish in time and the case
undergoes though adjouments. There is no requirement that a judge must be or at least posses the
knowledge or expertise on human rights.
It is our humble request to take into consideration the following observations to make
effective enforcement of human rights in Tanzania.

First, entrenchment or more social and economical rights in the Constitution in the ongoing
constitution amendment. This will help citizens to have more rights in them as can be seen in the
African Charter. The four Articles that are in the Constitution as from Article 20 to 24 are not
enough to fulfill the economic freedom of the citizens. Also expanding the presiding jurisdiction
to the resident Magistrate level so that people can have enough areas to take their claims to.
Education on human rights should be a criteria to make someone be it a judge or a magistrate to
qualify to preside cases on human rights and the issue of three judges should be excluded as it us
not be easy for all of them to have a consensus mind on a particular issue as they differ in legal
reasoning and in the level of understanding human rights a separate course in law. Ouster Clause
should be minimized to give room to total protection of human rights.

Despite the ineffectiveness of the legal framework and Institutions in enforcing human
rights, a few has been achieved in as far as human rights is concerned since independence.

These success include the entrenchment of human rights in the Constitution which has brought
some cure in protecting human rights. Before the entrenchment, the protection was almost at
ground zero and can be evidenced from the case of Athmali Damji v TTCC but after
entrenchment, many cases have been decided and in favor of the citizens which in Chumchua
Marwa v The Officer in Charge of Musoma Prison92 and Mtikila‟s case is among the cases that
have been decided since the entrenchment of Human Rights in the Constitution. Also the
formation of CHRGG has become an alternative way of solving matters on Human Rights. It has
no much procedural technicalities also not time barred neither is it expensive which makes many
citizens use it in enforcing their right.

92
Misc Crim Case No 2 of 1988 HC Mwanza Registry (unreported)
Conclusively, Although there are success to the effectiveness which in real sense has depended
in the wisdom of personnel‟s i.e judges and chairpersons of the commission whom realize the
setbacks they are faced with but take chances to ensure they protect Human Rights. The
effectiveness and setbacks to the effective protection of Human Rights should not be put forward
simply because of the success advice of this paper but to the success enforcement of Human
Rights.

BIBLIOGRAPHY
STATUTES.
The Constitution of United Republic of Tanzania of 1977
The basic Rights and Duties Enforcement Act, Act No 33 of 1999
Commission of Human Rights and Good Governance Act No 7 of 2001
Government Proceeding Act No Miscellaneous Amendment Act of 1994
TABLE OF CASES

A.G of the Bahamas v. Ryan (1980) AC 718

A.G v. Mara Magori Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No 95 of 1998
(unreported)
Chumchua Marwa v The Officer in Charge of Musoma Prison and A.G Misc Crim Case No 2 of
1988 HC Mwanza Registry (unreported)
Peter Ng’omango v. Gerson Mwangwa and A.G [1993] TLR 77
Rev Christopher Mtikila v A.G [1995] TLR 31
Rev. Christopher Mtikila v. A.G in the High Court of Tanzania at Dar es Salaam Main Registry
Misc. Civil Cause No 10 of 2005 (Unreported)
Shabani Khamis Mloo and Other v. Superintendent, Zanzibar Prisons. [1991] TLR 21
Sheikh Muhammad Nassor Abdulla v. The RPC Dar es Salaam and 2 Others. [1985] TLR 1
Tanzania in Baraza la Wanawake Tanzania (BAWATA) & 5 others v. The Regisrtar of Societies
& 2 Others High Court of Tanzania at Dar es Salaam, Msc civil case 27 of 1997 (unreported)
BOOKS

Bradley A.W & Ewing (2007) Constitutional Law and Administrative law: 14th Ed Pearson
Education Limited, London: England
C.K Takwan (1998) Administrative Law: 3rd ed. pp 17-18 New Delhi EBC Publishing (P) LTD

Chipeta, B.D (2009), Administrative Law in Tanzania, Dar es Salaam: Mkuki na Nyota
Publisher
David, F (1992) Introduction to Administrative Law: 3rd Ed. London Butterworth

Ezejiofor Gaius, (1964), Protection of Human Rights Under The Law, London Butterworths
(Publishers) Ltd: London Kingsway, W.C.2

Hurlow, C & Rawlings, Richard (1997) Law and Administration, Cambridge University Press
 MZUMBE UNIVERSITY

FACULTY OF LAW

SUBJECT: ADMINISTRATIVE LAW I

CLASS: LL.B- II

COURSE CODE: LAW 226

NATURE OF WORK: SEMINAR WORK FOR GROUP NO. 6

NAMES :- REGISTRATION NUMBERS:-

KOGGANI MTIPE 13993/T.11

KILEO ANGEL PAUL 14012/T.11

MSEMWA GODFREY J. 14180/T.11

MVANDA YVONNE T. 14007/T.11

RAPHAEL MADEUS 14019/T.11

MWALIKO JUSTINE 14152/T.11

NOAH GERALD 13989/T.11

MAKOI JACQUELINE J. 14020/T.11

LEMA MARTIN 14179/T.11

BAKARI MARIAM 13941/T.11

QUESTION:

Speaking of Parliamentary Supremacy in Tanzania is a myth. Multiple factors

erode the true essence of the application of this doctrine in Tanzania. If you
were given an opportunity to contribute your oppinion in respect of new
Constitution in Tanzania, what would you propose to be inluded or ommited to
improve the application of this important doctrine in Tanzania?
 OUTLINE

Introduction:-

 The focus of the question

 Historical background of the question

Main Body:-

 Multiple factors rendering the doctrine a myth

 The strict construction of the doctrine

 A lenient (modern) construction of the doctrine

 Proposal on what to be inluded or ommited to improve the application of

this important doctrine in Tanzania.

Conclusion:-

 An overview of the whole paper

INTRODUCTION

Parliamentary supremacy as defined by Dicey means, the right to make

or unmake any law whatever, and further that no person or body is recognized
by the law of England as having a right to override or set aside the legislation of
Parliament

Dicey also says that the principle of parliamentary supremacy can be seen at
both positive and negative side. From the positive side is that, “Any Act of
Parliament or any part of an Act of Parliament which makes a new law or
repeals or modifies an existing law will be obeyed by the court”

For that reason it is not open for the English courts as it is in some countries
like Tanzania for that matter, for the courts to declare that an Act of Parliament
need not be obeyed because it is ultra vires the powers of the Parliament.

From the negative side is that, “There is no person or body of persons who can,
under the English Constitution make rules which override or derogate from an
Act of Parliament, or which will be enforced by the courts in contravention of
an Act of Parliament”

The doctrine of Parliamentary supremacy or sovereign as widely

publicized by Dicey in 1885 is not the brain-child of the 19th
Century English Constitution. Legislative supremacy was
established by the end of the 17th Century although it is Dicey in
his famous publication, “Introduction to the study of Law of
the Constitution” who enlarged it to its present context. The
enlargement of the doctrine drew much assistance from similar
 previous works by Coke, The Institutes and Blackstone‟s
Commentaries on the laws of England,93

The history of the doctrine of the Parliamentary supremacy is the history of the
rivals between the King or kin in council and the common law courts, and later
the people‟s representatives‟ organ (The Parliament)94

This history can be obtained by examining areas which the struggle for
parliamentary supremacy were highly articulated which are: - Power of the
King to make proclamations and ordinances, Powers to suspend or dispense
operation of a given statute, Imposition of taxes and tenure of the judicial
officers

As stated earlier that the parliament of Tanzania is supreme in respect to

the law making, it is the only body that has power to make and unmake the
law. As stipulated under the Article 64(1) of The Constitution of United
Republic of Tanzania of 1977 (herein under referred to as CURT) 95 for the case
of union matters and Tanzania Mainland. “Legislative power in relation to all
union matters also in relation to all other matters concerning mainland
Tanzania is hereby vested in Parliament.” Also Article 64(2) of CURT gives
powers to the House of Representative of Zanzibar to entertain all matters
which are not union matters.
Though legislative power which is recognised by constitution it is a myth
due to the multiple factors which erode the true essence of the application of
this doctrine in our country Tanzania which are hereunder explained;-

The constitution, the parliament of Tanzania cannot be supreme as

that of United Kingdom this is due to the fact that we have a written
constitution which by itself is a limitation in the sense that Parliament cannot
enact laws which contravene constitution. Thus the parliament cannot enact

93
General principles of the Constitution (Open University)
94
ibid
95
Cap 2 R.E 2002
anything against the provisions of constitution, if does so the court have given
power to declare that law unconstitutional. As provided by CURT that “…this
constitution shall have the force of law in the whole of United Republic, and in
the event any other law conflicts with the provisions contained in this
constitution, the constitution shall prevail and that other law to the extent the
inconsistency with the constitution, shall be void.96” This can be evidenced by
the decisions of the court declaring the laws unconstitutional as in the case of
Chumchua Marwa v officer in Charge of Musoma Prison and Attorney
General97 where the court declared the Deportation Ordinance 98
unconstitutional.

International laws, these are set of rules generally regarded and

accepted as binding in relations between states and nations, these serves as
the framework for the practice of stable and organized international relations.
Thus if the government has ratified a certain convention then the Parliament
have no power to enact the laws against such international laws. For instance
the Parliament of Tanzania cannot enact laws which are against The Universal
Declaration of Human Rights also Tanzania being a member of East African
Community (E.A.C.), Southern African Development Community (SADC) also
Common Wealth, make the Parliament of Tanzania to be bound by the
agreement or treaties signed by the member states. Hence this also become
among the factors that erode the true essence of the application of this doctrine
in Tanzania.

Consultations of interests affected, usually Parliament enact the laws

after it consulted the Government, Organisations or pressure groups so as to
defend their interests in the new enacted laws. CURT gives the legislative power
to the Parliament and the legislative procedures, the Parliament is required to
present the Bill before it become a law to the President for assent as it stated

96
Article 64(5)
97
Misc. Cr. Cause No. 2 of 1988, High Court at Mwanza, unreported
98
as “subject to the provisions contained in this constitution, the Parliament
shall exercise its legislative power…passing bills which eventually shall have to
be assented to by the President, and the Bill shall not become law unless it is
so passed by the national assembly and assented to by the President…99” this
implies the Parliamentary Supremacy in Tanzania is more theoretical rather
than practical, this is due to the fact that the consultation to the Government
may render the Bill to be accepted or rejected, hence the supremacy of the
Parliament to make and unmake the law being eroded.

Democracy, the political system of the country under democratic

processes hinders the efficiency of the Parliament as under the multiparty
system of government make the parliament to adhere to the party‟s policies,
the parliament cannot enact the law that are against its party manifesto that
means the government in power is bound by its party manifesto and
consequently any legislation to be tabled before the Parliament should conform
with the manifesto, to our Tanzania this implies that the decisions by the
parliament in enacting the laws are to be those which favours the ruling party.
Also the system of ministers (executive) being appointed from the Parliament
erodes the strengths of the parliament as these ministers deciding at their
interests as executive and hence the power of Parliament is being limited.

The excessive power of the Executive, Executive as one the organs of

Government has the excessive power over other organs, Executive has the
power that intervenes the supremacy of the Parliament as the executive
through President must consent on the laws made by the Parliament as the
procedure by the CURT requires the Parliament to pass the Bill to the President
in order that Bill to become law as it is provided as “…the Parliament shall
exercise its legislative power…passing bills which eventually shall have to be
assented to by the President, and the Bill shall not become law unless it is so

99
Article 95
passed by the national assembly and assented to by the President…100” Also
through the implementation of budget of the country by the executive which
has the mandate to seek for external aids and support from donor countries
and International organization hence making the executive to have power of
decision over budget issues although the budget is prepared by the Parliament
itself but due to that fact the Parliament lacks power to question over the
expenditure of the executive, so with external funded budget the Parliament
become toothless bulldog whose duty is rubber decisions taken by executive.

Public opinion, public opinion can be as a complex collection of

opinions of many different people and sum of all their views or as a single
opinion held by an individual about a social or political topic.101 The Parliament
exercises its legislative supremacy with its responsibility to the general public
or electorate in mind the Parliament have to discharge their responsibility
taking into consideration the fact that at the expire of five (5) years Government
has to face the electorate in another general election, the manner in which the
reigning Government and Parliament interprets its natural effects the
Parliament activities including passing of legislations. This is the most
persuasive way opinions of individuals, associations organizations affect the
legislative body and this is mechanized using media like newspapers, radio,
televisions and internet through which their opinion reaches the government.

Having seen the factors rendering the doctrine of Parliamentary

Sovereignty a myth in Tanzania, we would wish to emphasize the following
before we make necessary recommendations to the Commission of
Constitutional Review, so as to do away with the problem. The doctrine of
Parliamentary Supremacy when strictly construed mean that, the Parliament
when performing its functions shall not be subject to any „limit or condition or
interference‟ whatsoever.102Application of such „strict‟ construction in

100
ibid
101
wikipedia
102
Fenwick, E. (1993). Constitutional and Administrative Law, p.60
Parliaments of many countries in the modern world proved failure in that, with
the radical change in the philosophy as to the role played by states, the
negative policy of maintaining „law and order‟ and of „laissez faire’ is given up,
the state has not confined its scope to the traditional and minimum functions
of „defense and administration of justice‟, but has adopted the positive policy
and as a welfare State has undertaken to perform varied functions.103

With such changes it became impossible for State Organs to perform their
functions independently, this in turn affected the Supremacy of the Parliament
in its traditional law making function became inadequate, therefore it was felt
necessary to delegate some powers to administrative authorities, but under the
strict interpretation of the doctrine, such a function as a law making function,
is a function ‟exclusively‟ vested on the Parliament. Therefore Parliamentary
Supremacy should nowadays be construed lenient to the standard that, it is
supreme not in the strict interpretation of the doctrine, but to the standard
that it can perform its functions to a reasonable standard satisfying the
modern construction of the doctrine not, so as not to be a myth concept.

Having emphasized on the modern construction of the doctrine, in line of

attaining the emphasized standard of supremacy above and far from a myth
standard, we accordingly recommend the followings to the Constitutional
Review Commission.

Article 97(1) (4) of the present Constitution104 the President is

empowered to dissolve the Parliament at any time if it happens that the
Parliament is reluctant to pass a proposed Bill of law. These powers has
serious negative impacts on the Supremacy of the Parliament in that, it tends
to intimidate the members of the Parliament that if they become reluctant to
pass a proposed bill, the President may dissolve the Parliament and call for

103 rd
Takwani, C.K. (2006) Lectures on Administrative Law, 3 Edn,p.5
104
The Constitution of the United Republic of Tanzania, 1977
another general election where some of them might not be able to retain their
positions, hence they will choose to pass the bill. This shows that the powers of
the President affects the Parliamentary supremacy, therefore the President
should be disposed the powers of assenting the bills to become law, and such
powers be exclusively be vested in the Speaker of the Parliament.

Secondly another recommendation is, under Article 66(1) (e) of the

present Constitution105 the Constitution empowers the President of the United
Republic of Tanzania to appoint not more than ten members from amongst
persons with the qualifications specified under paragraphs (a) of sub article (1)
of Article 67 who at least five members amongst the members shall be women.
It is argued that, this power affects the supremacy of the Parliament in that,
these Presidential appointees will tend be very submissive to the president and
therefore, they will tend to favor and justify Government actions and policies,
which in turn affects the supremacy of the Parliament in ensuring that the
Government become responsible to it. We therefore recommend that in the next
Constitution, such an Article which empowers the President to appoint
members of Parliament be repealed, or if there is still a need to retain the same
then the Parliament should have power to approve the same.

Moreover, under Article 55(4) of the Constitution provides to the effect

that, the President after consultation with the Prime Minister shall appoint all
Ministers and Depute Ministers among members of Parliament. The fact that
Ministers and Depute Ministers are appointed among the members of
Parliament affects the Parliamentary Supremacy, in that, Parliamentary
Supremacy is attained if all the members of the Parliament jointly, effectively
and actively stand in their position as members of Parliament. We therefore
recommend that in the coming Constitution, such an article which allows
Ministers and Depute ministers to come among the members of Parliament
should not be included. This is because when Ministers and Depute Ministers

105
Ibid
are members of Parliament, they cannot stand in members of Parliament
capacity and ensure the Parliament is Supreme, in ensuring that the
Government become responsible to it, by virtual of the doctrine of Ministerial
responsibility and in enacting laws which are just , fair and reasonable for
proper administration.

Furthermore, under Article 62(1) of the present Constitution, provides

to the effect that “there shall be the Parliament of the United Republic which
shall consist of two parts, that is to say, the President and the National
Assembly”. The effect of this article with regards to the Parliamentary
Supremacy is that, the President alone been the half part of the Parliament has
big powers which in their exercise, in one way or another directly affects the
concept of Parliamentary Supremacy. The very good example of such powers is
the power to assent the Bill of Law so as to become a law as above discussed.
As a matter of recommendation therefore, we accordingly would like to advise
that, for true realization of the concept of Parliamentary Supremacy, the
President need not be part of the Parliament, the Parliament parts shall not
involve the President, but in among the members themselves on any way that
suit their effective functions.

Lastly, under Article 67(1) (b) of the present Constitution, the Constitution
provides to the effect that, “subject to the provisions contained in this Article,
any person shall be qualified for election or appointment as a Member of
Parliament if he is a member and a candidate proposed by a political party, as
a matter of recommendation, such an article has to be revised to undo the
invalidating the Political Parties powers to determine should not contest
Elections, this is because if such powers are left as they are, they will continue
to undermine not only the ability of the Parliament to oversee the Executive
branch but, but also the principle of separation of powers.106

106
erneotzzulu@yahoo.Co.UK
CONCLUSION;

As we have seen from the above discussion that parliamentary

supremacy is the only supreme authority of the parliament in making laws
within its jurisdiction, due to various factors like constitution, Executive
powers all this have made the doctrine of parliamentary supremacy to become
a myth or a history in our country the above argument is based on the strict
construction of the doctrine whereby the application of such „strict‟
construction in Parliaments of many countries in the modern world proved
failure in that, with the radical change in the philosophy as to the role played
by states, the negative policy of maintaining „law and order‟ and of „laissez faire’
is given up, the state has not confined its scope to the traditional and
minimum functions of „defense and administration of justice‟, but has adopted
the positive policy and as a welfare State has undertaken to perform varied
functions therefore in one way or another appears inevitable fusion of
Government functions which inevitably affects the whole concept of
„Parliamentary Supremacy.”
 REFERENCES

Statutes:

The Constitution of the United Republic of Tanzania,1977.

Cases;

Chumchuwa Marwa v Officer in Charge of Musoma Prison and Artoney General

Misc Cr Case no.2of 1988,High Court at Mwanza,Unreported.

Textbooks:

Fenwick, E. (1993). Constitutional and Administrative Law, Cavendish

Publishing Limited: London

Leyland,P. and Woods, T. (1999). Administrative Law, 3rdEdn, Blackston Press

Ltd, London

Oludeye, P. (1973). Administrative Law in East Africa, E.A.L.B, Dar es

Salaam

Shivji, I.G, et al,(2004). Constitutional and Legal System of Tanzania,

Mkuki&Nyota, Dar es Salaam

Takwani, C.K. (1998). Lectures on Administrative Law, East Book Company,

Lucknow

Wade, E.C.S. and Brandley, A.W. (1993).Constitutional and Administrative

Law, 11thEdn, Longman, London
 MZUMBE UNIVERSITY

FACULTY OF LAW
ITEBA BERNADETHA 14162/T.11

MAHENGE AUGUSTINO 14050/T.11

LYAMUYA IMACULATA 13958/T.11

MATITU SHARIFA 14146/T.11

JUMAA MUZAMILI H. 14O15/T.11

SOPHIA CHECHE 13950/T.11

EVA KAZIMOTO 14016/T.11

INNOCENT J. MASUKY 14009/T.11

ABDALLAH S. AZIZ 14160/T.11

EMMANUEL ERNEST 13998/T.11

QUESTION;

The conduct that tends to undermine the public confidence in the character, integrity
and impartiality of the judge must be eschewed. It is expected of him to voluntarily set
forth whole some standards of conduct reaffirming fitness to higher responsibilties.
Even the private life of a judge must adhere to standards of probity and propriety
accepted to others “Krishna Swami v Union of India & others [1995] SUPD 3 SCR 319.
Does this quatation entail that the independence of the judiciary has its corresponding
duties? Explain with relevant authorities.
 WORK OUTLINE

1.0 INTRODUCTION
 A brief overview of the doctrine of the Independence of the Judiciary.
 A general overview of the question
 The case in brief (Krishna Swami v Union of India & others)

2.0 MAIN DISCUSSION

 The Code of Conduct for Judicial Officers.
 Duties of the judges and how they are correspondent to enhance the Independence of
the Judiciary.
 The Bangalore Principles of Judicial Conduct.
 The Judicial Service Act.
3.0 CONCLUSION
Concluding remarks on the above discussion.

4.0 BIBLIOGRAPHY
1.0 INTRODUCTION

The doctrine of the independence of the judiciary as one of the constitutional principle derives it
structure and sanctity from the rule of law. The doctrine presupposes the separation of judicial
powers from the executive and the legislature. The doctrine of independence of the judiciary has
two broad dimensions which are functional independence and personal independence.

Functional independence implies the separation of judicial functions from other external
functions this is to say that the judicial officers are bound to the functions of the judiciary and
should not involve themselves with the functions of other organs of the state such as the
legislature and the executive. This separation helps to keep the judiciary away from political
pressure, political influences and political interferences.

Speaking of personal independence it deals with the security of tenure, security of personal
emoluments and the immunity of judges and magistrates from prosecution and litigations. It
further implies that every judge or magistrate, as the case may be, is free to decide matters
brought before him in accordance with his assessment of the facts and his understanding of the
law without any improper influence, inducements, or pressures direct or indirect from any
quarter or for any reason.Judges and magistrates are judicial officers. Immediately after their
appointment, they aresupposed to administer true justice to the people. The judiciary, as one of
the organs of the state, has to be impartial, independent, clean from corruption and ethical.
Article 107 A of TheConstitution of the United Republic of Tanzania of 1977provides that,
The judiciary shall be the authority with final decision in dispensation of justice in the United
Republic of Tanzania.In delivering decisions in matters of civil and criminal nature in
accordance with the laws, the court shall observe the following principles, that is to say-

a) Impartiality to all without due regard to one‟s social or economic status

b) Not to delay dispensation of justice without reasonable grounds;
c) To award reasonable compensation to victims of wrong doings committed by other
persons, and in accordance with the relevant law enacted by the parliament
d) To promote and enhance dispute resolution among persons involved in the disputes; and
 e) To dispense justice without being tied up with technicalities provisions which may
obstruct dispensation of justice 107.

Also, article 107B108 provides that, in exercising the powers of dispensing justice, all courts shall
have freedom and shall be required only to observe the provisions of the Constitution and those
of the laws of the land.

The conducts of a judge should be characterized which a highest degree of integrity, impartiality,
accountability, diligence, propriety and equality. The judicial officer on the other hand ,
should not act under pressure to safeguard some private interests of any group. In Adam v
commission for judicial performance109,a judge was removed from office who among other
misconducts, had accepted gifts, financial benefits, or preferential treatment from attorneys or
law firms that appeared before the judge and from litigants in a case over which the judge had
presided. Here the judge placed in doubt his ability to act with integrity, independence and
impartiality. Hence a judgeshould conduct himself with confidence andfairness inorder
tomaintain public confidence110.

Due to this, “the conducts which tend to undermine the public confidence in the character,
integrity and impartiality of the judge must be eschewed 111. This is because it is expected of
him to voluntarily set forth wholesome standards ofconduct reaffirming fitness to higher
responsibilities. Even a private life of a judge must adhere to standard of probity in propriety
acceptable to others”

This was held in the Indian case of KRISHNA SWAMI V UNION OF INDIA & OTHERS112.

THE CASE IN BRIEF

The case involves the writ petitions which claims the petitioners to have been filed for public
interest and relate to the proceedings for removal from the office of Mr. justice V. Ramaswami
of the supreme court of India initiated by the notice of motion given to the speaker by 108

107
The Constitution of the United Republic of Tanzania, 1977 Article 107A
108
Ibid
109 th
(1995) 10 cal. 4 866
110
I. L. Mgeta [2012], Class notes
111
Eschewed means abstained from or avoided
112
(1995) Supp. 3 SCR 319
members of ninth loksabha on the ground that the procedure used to remove the justice were
unconstitutional and they claim for relief.

In respond to these writ petitions the court dismissed all on the ground that they were done under
personal interest and not for public this is due to the fact that even the judge to who the petition
written to claim for relief is absent (not among of petitioners).

The contentions were mainly for reconsideration of the earlier constitution bench decision in
sub- committee on judicial accountability. The court observed that “we have already indicated
the impropriety of considering and deciding the question of grant of reliefs claimed in the
petition for the benefit of Mr. justice vRamaswami in his absence even as a party. Ordinarily, it
is the person aggrieved and directly affected who must seek the relief himself unless disabled
from doing so for a good reason, which permit someone else to seek the relief on his behalf.

It was held in this case that, “The behaviour discipline of a judge is integral (necessary)
component of judicial independence.” This insists that it is through the maintainance of
behaviour discipline they will create great sense of freedom in their duties.

The case furthermore provides that “ to keep the stream of justice clean and pure, the judge must
be endowed with sterling (exellent or of great value) character, impeccable intergrity (of high
standard) and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law
and the working of the constitution itself.”

Moreover, it was also held that “The actual as well as the apparent independence of the
judiciary would be transparent only when the office holder endows those qualities which would
operate as impregnable fortress against surreptitious attempts to undermine the independence of
the judiciary‟‟

2.0 MAIN DISCUSSION

As we have seen above, the case supports that the independence of the judiciary and the duties
of the judges are correspondent. This is because, for there to be an independent judicial system,
judges must behave under high discipline and must conform with the morals and ethical
standards of behavior. Hence, supporting the statement that, independence of the judiciary has its
corresponding duties. These duties and ethical standards are contained in the Code of Conduct
for Judicial Officers.

THE CODE.

This code provides for the ethical conducts that a judge or any other judicial officer must
observe. This code was a product of the successful conference held by judges andmagistrates in
Arusha Tanzania from 15th to 16th march 1984. However the code is only applied in Tanzania
mainland. The code insists the magistrates to participate actively in establishing, maintaining
and enforcing the law which will lead to integrity and respect for the Independence of the
Judiciary113. This shows that the independence of the judiciary has its corresponding duties.

DUTIES OF THE JUDGES AND THEIR CORRESPONDENCE TO THE INDEPENDENCE

OF THE JUDICIARY.

A. Judges should uphold the integrity and the independence of the judiciary.
The independence of the judiciary can be protected by the magistrates themselves. It
is important to take note of that, independence of the judiciary and the judiciary is
indispensable to justice in the country. Magistrates should participate in establishing
high standards of conduct 114.
One of the ways of maintaining the independence of the judiciary is and the integrity of
judges is to deny taking corruption. Corruption destructs the independence of the
judiciary, the integrity and the impartiality of the magistrates in the entire process of
dispensation ot the court duties. 115
The author, Alfred J Di bona in The Judges Book said that, “You shall appoint
magistrates and judicial officials throughout your tribes to administer true justice for the
people…..You shall not distort justice: you must be impartial, you shall not take a bribe
for a bribe blinds the eyes of the wise and twists the words even of the just”
Hence, if the judges will adhere to such standards of conduct in the course of their
duties, independence of the judiciary will be maintained.
113
Mandopi Kelvin (2008) Judicial Ethics and Practise for Primary court Magistrates in Tanzania,I.S.B.N 9987-9025-
4-6, Vuga Publishing House ,Soni Tanzania.
114
Chris Maina Peter, Human Rights in Tanzania, selected cases and Materials pg 482-506
115115
Mandopi Kelvin (2008) Judicial Ethics and Practise for Primary court Magistrates in Tanzania,I.S.B.N 9987-
9025-4-6, Vuga Publishing House ,Soni Tanzaniapg 28
 B. Magistrates should avoidimpropriety theappearance ofimpropriate.
A judicial officer should respect and comply which the laws of the land and should
conduct himself at all times in a manner that promotes public confidence in the integrity
and impartiality of the judiciary.
He would therefore be undermining these values if he allowed his family , social or
other relationship to influence his judicial conduct in judgments.
Other tests for the appearance of impropriate are:-

 Whether the conduct would create in reasonable minds a perception that the
judicial officers ability to carryout judicial responsibilities with integrity impartial
competence is impaired.
 Whether a person aware of the facts might reasonably entertain a doubt that a judicial
officer would be able to act with integrity, impartiality, and competence.
 Whether notwithstanding the absence of proof of any actual or intended impropriety,
a circumstantial appearance of the impropriety was inescapably created
 Whether the conduct would legitimately reflect upon judicial officers professional
integrity to a reasonable person following review of the totality of the circumstance.
In case the judges let the prestige of his office to advance the private interests of others, i.e by
voluntarily testifying as to their character or by standing surety unless he is required by law to do
so. In sum a judicial officer should not convey or permit others to convey the impression that
they are in a special position to influence him. 116
If a judge will adhere to all these duties and ethical standards of conduct, independence of
the judiciary will be maintained.

C. Adjudicative duties.
Under this duty, magistrates require to be true and faithful to the law. The should
acquire and maintain such such professional competence in it as to enable him
achieve its proper and smooth administration. 117 Other duties include;

116
The Code of Conduct for Judicial Officers of Tanzania, 1984
117
Ibid, Rule 2 Part A (1)
  Duty to determine adjudicative duties courteously. This means that judicial
officers are bound to maintain order and decorum of the court activities as per
part 2 of the rule 2A118
 Duty Not to entertain Ex parte Communications.
At all times during proceedings, magistrates should not initiate or consider ex
parte119 communications. Ex parte communications discrediting the
impartiality and creates doubts among the members of the society.
 Duty to observe Co-operation and Court time management
A judicial officer should dispose of promptly the business of the court. In
order to achieve this, the judicial officer is required to devote adequate time to
his duties, to be punctual in attending court . A judicial officer should insist
that court officials, accused persons, litigants and their lawyers co-operate
with him to that end.120
 Duty to Abstain commenting on the matter pending for determination.
Judicial officers must be keen to the duties of the court. They must abstain
from commenting about a pending or impending proceeding in any court in
this country121.
 Duty not to allow the media to circumvent the proceedings.
Judicial officer should prohibit broadcasting, televising, recording of or
photographing in the court rooms and areas immediately adjacent thereto
during sessions of the court or recesses between sessions in order to prevent
the distortion or dramatization of the proceedings by such recording or
reproduction122.
 Duty not to manifest bias
In all stages of adjudication, magistrates are required to do their duties without
bias and the existence of any sign of prejudice. ViviDilweg and R. Fretz123said

118
Op cit.
119
Means by only one party to a dispute in absence of the other
120
The Code of Conduct for Judicial Officers,1984 Rule 2 (5)
121
Ibid, Rule 2A (6)
122
Ibid, Rule 2A (7)
123
ViviDilweg and Donald R. Fretz, Modern Judicial Ethics (1992)
 that “….. must make sure that their statements, on and off bench are proper
and do not convey any image of prejudice or bias to any person or any
segment of the community.”
If a judge will adhere to all these duties and ethical standards of conduct,
independence of the judiciary will be maintained.

D. Administrative Duties
 A judicial officer should require his staff and other court officials to observe
standard of fidelity
 A judicial officer should take disciplinary measures against other judicial
members of unprofessional, unethical conduct of which a judicial officer may
become and led to publication of those in appropriate behaviors in the media
 A judicial officer in exercise of his office should avoid nepotism and
favouratism
 Magistrate should not allow or permit others to influence theme.

E. Disqualification

The other duty of a judge which will enable them to maintain the independence of the judiciary
is disqualification. A judicial officer should disqualify himself in a proceeding in which his
impartiality might reasonably be questioned .including but not limited to the instances where:

 He has a personal bias or prejudice concerning a party or personal knowledge of the fact
in dispute
 He served as a lawyer in the matter of controversy. Or a lawyer with whom he previously
practiced law served during such association as a lawyer concerning a matter or judicial
officer or such lawyer has been a material witness in the matter
 He knows that he individually or as judiciary or spouse or minor child residing in his
household. Has a financial or any interest that could be substantially affected by the
outcome of the proceedings
 He or his spouse or a person relating to either of them or the spouse of such person
  Is a party to the proceedings or an officer, director or a trustee of a party
 Is acting as a lawyer in the proceedings
 Is known by judicial officer to have interest which could be substantially affected by the
outcome of the proceeding
 Is to the judicial officer‟s knowledge likely to be a material witness in the proceedings

The code of conduct for judicial officers of Tanzania provides some extra judicial activities to
which a judicial officer can regulate or participate. Those activities are provided under the Rule 4
of the Code of Conduct for Judicial Officers as follows;

 Avocational activities. A judicial officer is allowed to write, lecture, teach, and speak on
legal subjects. He also can engage in arts, sports and other social and recreational
activities, if such avocational activities do not adversely affect the dignity of his office or
interfere with the performance of his judicial duties. This rule is meant to keep judicial
officers within dignified limits as part and parcel of the society in which they live so that
they are not isolated from it
 Civic and charitable activities: A judicial officer may participate in civic and charitable
activities that do not reflect adversely upon his impartiality or interfere with the
performance of his judicial duties. Judicial officer may therefore serve as an officer,
director, trustee, or a non legal adviser of an educational, religious, charitable, fraternal or
civic organization not conducted for the economic or political advantage of its members
subject to the condition that issued not serve if it is likely that the organization will be
engaged in proceedings which would ordinarily come before him or will be regularly
involved in legal proceedings in any court.
 Fiduciary activities: The code requires that, a Judicial officer should not serve as the
executor, administrator, trustee, guardian, or other fiduciary, except for the state, trust, or
person of a member of his family and that only if such serves will not interfere with
proper performance of his judicial duties. By the mutual of the code 124 “member of his
family” includes spouse child grandchild, parent, grandparent, or other relative or person

124
The code of conduct for judicial officers of Tanzania
 with whom the Judicial Officer maintains a close familial relationship. Even that is so, in
that fiduciary, Judicial Officer is subject to following conditions:
I. He should not serve if it is likely that as a fiduciary he will be engaged in proceedings
which would ordinarily come before him, or if the estate, trust or ward becomes involved
in legal proceedings in the court to which he serves or one under its appellate jurisdiction.
II. While acting as a fiduciary a Judicial Officer is subject to the same restrictions in
financial activities which apply to him in his personal capacity

The code of conduct provides that a judicial Officer should not practice law. This means that a
Judicial Officer should not apply the legal technicalities, which are likely to infringe the right
and justice in a sense that what was supposed to be right he make it to be wrong and what is
wrong to be right in favour of his interest.

All these are contained in the Code of Conduct For Judicial Officers of Tanzania. However, there
are other statutes which have tried to show the ethics and mode of conducts which any judicial
officer must abide to. A good modal for all the common wealth countries is the Bangalore
Principles of Judicial Conduct.125

THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT.

Under the Bangalore Principles of Judicial Conduct specifies rules that ensure that judges
perform their duties with accordance with the law. The ethics and standards of a judge are well
stipulated along the Values of the code. The following values have been upgraded in this code:

 Independence
 Impartiality
 Integrity
 Propriety
 Equality
 Competence and diligence

125
2002
 If a judge will adhere to all these duties and ethical standards of conduct,
independence of the judiciary will be maintained.Hence showing that these two are
correspondent.

THE JUDICIAL JUDICIAL SERVICE ACT.

In this Act, The Judicial Service Commission for ensuring the discipline of the judicial officers
is established under S.7. The Act plays a great role in promoting judicial ethics. Failure to abide
to this Act and The Code of Conduct, leads to a disciplinary action against the judicial officer.
Also Section 25 of the Actestablishes committees which shall be responsible for making
investigations and inquiries against judicial officers. Hence it is an important document.

4.0 CONCLUSION
In general,by mutual of the question at hand which talks of the quotation given in the case of
KrishnaSwami v Union of India and others,it entails that independence of the judiciary has its
corresponding duties, The behaviour discipline of a judge is integral (necessary) component of
judicial independence.” This insists that it is through the maintainance of behaviourand
discipline they will create great sense of freedom in their duties. In order to maintain the public
confidence, a judge must observe the ethical morals and standard principles or rules of
conduct that governs the judicial officers. These are all contained in the “Code of conduct for
Judical officers of Tanzania.This case has given a great contribution in advocating the ethics and
morals of judges and judicial officers in general. It was also held in this case that “ to keep the
stream of justice clean and pure, the judge must be endowed with sterling (exellent or of great
value) character, impeccable intergrity (of high standard) and upright behaviour. Erosion thereof
would undermine the efficacy of the rule of law and the working of the constitution itself. Hence
Independence of the Judiciary and judicial ethics are two sides of the same coin.
 MZUMBE UNIVERSITY

FACULTY OF LAW

BACHELOR OF LAWS

SUBJECT ; ADMINISTRATIVE LAW I

SUBJECT CODE ; LAW 226

COURSE ; LLB

CLASS ; LLB II

NATURE OF WORK ; GROUP ASSIGNMENT, PRESENTANTION

SUBMISSION DATE ; January 2013

PARTICIPANTS REG. NUMBER

1. MANUMBA ROSE, R 14042/T.11

2. MBUNDA EILEEN 14037/T.11
3. LUGANO ULIMBOKA, M 14036/T.11
4. JUMA JOHN, G 14170/T.11
5. DELILA RITTE, R 14145/T.11
6. CHARLES LILIAN, K 14065/T.11

7. ASAJILE LUSAJO 14014/T.11

8. MUNGURE HEAVENLIGHT, G 14039/T.11
9. NZUMBI RAPHAEL, P 14045/T.11
10. TEMBA ELIZABETH, L 14013/T.11

QUESTION

The current legal framework which empowers Regional and District Commissioners, powers to
form part of disciplinary bodies against magistrates is one of the disgraceful and humiliating
factors to the doctrine of Independence of the judiciary. Do you agree? State why.
1.0 INTRODUCTION

Human beings live together in societies despite their differences in many aspects, like colour,
age, ranks, respect, wealth, education and many others. This is because human beings are more
civilized and intelligent than other animals, by the use of common sense and artificial knowledge
acquired from conducting researches, investigations and studies on different areas. Interaction
among beings is increasing every day and this interaction is a manifest into variety of spheres of
life like socially, politically, economically and culturally.

Despite the need for interaction in life of individuals, with the state organs, then independence of
the same is an imperative factor for the better performance of the duties of every organ of the
state. The legislature, executive and judiciary all need independence that will keep them away
from interfering one another. This is the so called the doctrine of separation of power with which
the executive executes, legislature makes laws and judiciary interprets and administers them. It is
a long surviving doctrine since early times of the Greeks, Plato and Aristotle, and a French
philosopher, Montesquieu, later developed it in 17th century. Wade and Philips curtailed the
meaning of separation of power into three different aspects, (1) that the same person should not
form part of more than one of the three organs of the government, (2) that one organ of the
government should not control or interfere with the exercise of its function by another organ, and
(3) that one organ of the government should not exercise the functions of another organ. In
Tanzania, the manifestation of this doctrine is found under article 4 of the Constitution of the
United Republic of Tanzania 126, which provides for the exercise of state authority and dwells
separate powers among the state organs. In Rev Christopher Mtikila v The Attorney General 127
Lugakingira J said “The function of courts of law is to settle legal questions. We therefore have
the doctrine of separation of powers under which the executive, the legislature and the judiciary
are as far as possible assigned different duties and enjoined not to trespass into each other’s
field. . .” The doctrine of separation of powers brings into play the doctrine of independence of
the judiciary.

126
1977 [cap 2 R.E 2002] as amended from time to time until 31st Aug 2008
127
High Court of Tanzania, Dar es salaam Registry, Civil Case No. 5 of 1993
Quoting words of Julius K Nyerere 128, “…it is of paramount importance that the execution of the
law should be without fear or favour. Our judiciary at every level must be independent of the
executive arm of the state. Real freedom requires that any citizen feels confident that his case
will be impartially judged, even if it is a case against the Prime Minister himself”129. In the
Constitution of the United Republic of Tanzania 130, article 107B, provides that in exercising the
powers of dispensing justice, all courts shall have freedom and shall be required only to observe
the provisions of the constitution and those of the laws of the land. This article grants
independence to the judiciary as a body or organ of the state in the discharge of its duties. The
independence of the judiciary in Tanzania is subject to provisions of the constitution and other
laws, and then this is no independence. The Constitution itself contains many ouster provisions
which bars the judiciary from exercising some matters which duly falls within their ambit of
control. For instance Article 74 (12) of the Constitution of the United Republic of Tanzania
provides that no court shall have power to inquire anything done by the Electoral Commission in
the discharge of its functions in accordance with the provision of this Constitution, also article
41(7) provides that no court of law shall have any jurisdiction to inquire into the election of the
candidate declared by the Electoral Commission to have been duly elected. To that extent then it
cannot be advocated that there is fully independence of the judiciary if such independence is
subject to non-important limitations.

2.0 MAIN DISCUSSION

For the fulfillment of government functions, there are established organs, a tripartite system of
government in different countries all over the world, that is, the judiciary, executive and the
legislature.

2.1 The Current Legal Framework

The current legal framework with regard to disciplinary bodies against magistrates empowers the
Regional and District Commissioners powers to form part of the disciplinary bodies. Formerly

128
The late father of the nation, first President of Tanzania
129
See Nyerere, Julius, k.,(1966). Freedom and Unity: A selection from Writings and Speeches, 1952-1965, Dar es
salaam; Oxford university Press, p. 131
130 st
1977 [Cap 2 R.E 2002] as amended from time to time until 31 Aug 2008
this power was enshrined under the Judicial Services Act 131, section 38 and 39 but currently the
same provisions are entrusted in the Judicial Administration Act132, which repeals the Judicial
Services Act (supra), under section 50 and 51 of the Act. Under these sections, the Regional and
District Commissioners are given mandate to chair the bodies and they have been vested with
powers of appointing other members to form such bodies. For example under section 50 of the
Act, which reads the same with section 51 of the Act, the Regional and District Commissioners,
respectively, have been given powers to appoint two members who are of proven integrity and
knowledgeable.

The disciplinary bodies referred to in the question are the Regional Judicial Officers Ethics
Committee and the District Judicial Officers Ethics Committee, which are established in every
Region or District, respectively.

2.2 Independence of the Judiciary and the Regional and District Commissioners
forming part in disciplinary bodies against magistrates

2.2.1 Independence of the Judiciary

The concept of Independence of the Judiciary enshrined in the country‟s Constitution 133 and
preamble to the constitution makes this clear that the concept is the cornerstone of all states
activities134. As pointed earlier, Independence of the Judiciary emanates from the doctrine of
Separation of powers. Judiciary embraces both the institution of courts and the persons who
compose it, judges and the magistracy. Moreover, it is vested with powers, which the state exerts
in the administration of justice as opposed to the power it possesses to make laws and the power
of executing them. Independence of the judiciary encompasses a variety of things, it means every
judge or magistrate, as the case may be, is free to decide matters brought before him in
accordance with his assessment of the facts and his understanding of the law without any
improper influence, inducements, or pressure direct or indirect from any quarter or for any

131
Act No. 2, 2005
132
No.4, 2011
133
Article 107A and 107B of the Constitution of the United Republic of Tanzania, 1977
134
Mfalila L. M.S, (2007), “Twenty five years of the court of Appeal and independence of the Judiciary.” In the book
Law and Justice in Tanzania Quarter of a century of the court of Appeal, Chris M.P & Helen K.B (Eds), p. 83
reason. This is in accordance with the oath of office, which they take to do justice without fear or
favour, affection or ill will.

Hamidu Nassoro135 pointed out three important aspects of the independence of the judiciary.
First is personal independence of the judges, which traditionally takes into account such matters
like appointment, security of tenure and remuneration. Second aspect of judicial independence is
the functional independence that requires the judicial officers, in carrying out their functions;
they have to be subject only to the law. They should not be subject to any influence from outside,
they only need to be bound by the laws. In addition, the third aspect of the independence of the
judiciary is institutional independence that is considered as the Achilles heel of the whole
concept of independence. The judiciary is inextricably dependent on the executive and the
legislative for finances and other operational logistics. `

Independence of the judiciary may be deprived off either internally or externally. It may be
barred internally when a legal practitioner of higher rank in the judiciary influences and directs
the legal decisions of legal personnel in lower ranks, like a judge to a magistrate. While external
influence comes from other people other than those in the judiciary body, they may be executives
or legislators, politicians or any other person. Generally, where the judiciary body is interfered in
the performance of its functions, there cannot be said to exist independence of the judiciary in
such a state.

Chris Maina Peter136 while discussing the International community and Independence of the
judiciary, he recognizes the guiding principles that can be taken as standard norms as the
international community provides them. Independence of the judiciary is to be guaranteed by the
state and be enshrined in the Constitution; also, the judiciary is to decide matters before them
impartially while it also needs to have jurisdiction over all issues of a judicial nature.
Nevertheless, the judiciary shall also be free from any inappropriate or unwarranted interference
while the judiciary is, moreover, entitled to ensure that judicial proceedings are conducted fairly
and that the rights of the parties are respected.

135
In his paper titled Independence of the Judiciary in Tanzania; A Critical Re-evaluation, (1998) presented at
University of Dar es Salaam.
136
In his paper entitled Independence of the Judiciary in Tanzania: Many rivers to Cross
 2.2.2 Regional and District Commissioners in the disciplinary bodies against
magistrates

The judicial body is composed of judicial personnel, people who are educated and professional
in judicial matters. The executive body is build up of politicians who may be educated
(professionals) or not, elected or appointed, including the Regional and District commissioners.
Having Regional and District Commissioners in disciplinary bodies against magistrates is not
against Independence of the judiciary per se. Independence of the judiciary dwells in the duties
and functioning of the judiciary while disciplinary bodies deals with assessment and
investigation on judicial personnel, magistrates in particular, who are complained of conducting
in a disorderly manner. A good example can be seen in the case of R v Iddi Mtegule137 where the
magistrate released an accused person who had been charged of selling buns in disobedience of
an order of the area Commissioner banning the sale of consumption edibles in a bid to prevent
the spread of cholera. Burns were not among the prohibited items. Being furious the area
commissioner wrote a letter to the magistrate accusing him of bias and deliberate attempts to
thwart efforts of the authorities to stamp out cholera, he also required the magistrate to explain to
explain why he acquitted the accused and threatened to take stern action against him. This case
shows a real position where there is interference with the independence of the judiciary. Though
this system does not interfere or disgrace the independence of the judiciary but in itself the
system is not just or fair, this is due to the following reasons;

Exercise of much powers within the bodies, as section 50 (1), (a) of the Judicial Administration
Act (supra) provides, the regional commissioner is powered to chair the committee and
paragraph (d) the regional commissioner has power to appoint two members to form part in the
committee. The same is provided for under section 51 (1) (a) and (d) of the same Act,
respectively. The powers given are beyond the limit of their exercise.

The system of recruiting Regional and District commissioners is not open unlike to magistrates.
The Constitution itself sets the qualifications for a person to be appointed a magistrate but the
system for appointment of regional and district commissioners is not known and we doubt if
there is any law providing for who qualifies to be appointed as regional or district commissioner.

137
2.3 Need for Checks and Balance

To quote Jain M. P and S.N Jain138 power corrupts and absolute power corrupts absolutely,
state‟s powers need to be limited and one way of limiting such powers is by having checks and
balance. One organ should be able to check the performance of the other organ. Organs of the
state should not operate in a sanctity way that will not allow any questions on their discharge of
duties.

Therefore, judicial personnel should not only and on their own form the Regional and District
Judicial Officers Ethics Committees but they should include other members from organs other
than the judiciary itself. This is to avoid the degree of fabrication of investigation by members if
they are from the same domain.

2.4 Recommendations

The current framework does not give room for fair and just comments on the conduct of a
magistrate because of the power vested to regional and district commissioners. Those regional or
district appointees are not expected to work or differ in opinion with the person gave them such
authority to act. Then the composition and structure of such committees need to be checked and
be restructured for effective functioning of such committees.

On its composition, disciplinary bodies should comprise of persons from all the three organs of
the government. However, the control of such committees should remain to people with
qualifications to the matter at hand, for this case being the judges or magistrates. The power of
appointing vested in the chairperson should be removed and the Judicial Services Commission
established under article 112(1) of the Constitution of the United Republic should declare the
composition of these disciplinary bodies. This will reduce the degree of bias during the
investigation.

3.0 Conclusion

In as far as the Independence of the judiciary is concerned, it ensures the better performance of
the judiciary as a body in administering justice fairly and equally to its subjects. Currently the

138
Jain M. P & Jain S. N, (2005). Principles of Administrative Law, p. 7
life of the judiciary depends on other organs of the state. In terms of remunerations judiciary
depends on the executive body, also it‟s the President who determines who are to be top officials
in the Judiciary organ, the Chief Justice, Principle Judges, High Court and Court of Appeal
Registrars, Judges, Judicial Services Commission members and others, in accordance with article
109 (1), 112 (2) and others. To achieve its fully independence then much need to be done on
remuneration, appointments and the security of tenure to be left under the control of the judiciary
itself.
 BIBLIOGRAPHY

CONSTITUTION

The Constitution of the United Republic of Tanzania, 1977 [Cap 2 R.E 2002]

STATUTES

Judicial Administration Act, No. 4, 2011

Judicial Services Act, No. 2, 2005

CASES

Rev Christopher Mtikila v The Attorney General Civil Case No. 5 of 1993

R v Iddi Mtegule

BOOKS

Peter, C.M. & Kijo-Bisimba, H. (Eds). (2007). Law and Justice in Tanzania; quarter of a century
of the Court of Appeal. Dar es salaam; Mkuki na Nyota Publishers

Jain M. P & Jain S. N, (2005). Principles of Administrative Law, 4th ed. New Delhi: Wadhwa and
Company Publishers

ARTICLE – BOOKS

Mfalila L. M.S, (2007). “Twenty five years of the court of Appeal and independence of the Judiciary.” Law
and Justice in Tanzania Quarter of a century of the court of Appeal, Dar es salaam; Mkuki na Nyota. Peter
C. M & Kijo- Bisimba, H. (Eds)

MIMEO

Nassoro, H. (1998). Independence of the Judiciary in Tanzania: A critical re-evaluation, paper

presented at University of Dar es salaam

Peter, C.M (n.d).Independence of the Judiciary in Tanzania: Many Rivers to Cross

 MZUMBE UNIVERSITY

FACULTY OF LAW

BACHELOR OF LAW

SUBJECT ADMINISTRATIVE LAW

COURSE LLB II

NATURE OF WORK GROUP ASSIGNIMENT,

PRESENTATION

SUBMISSION DATE JANUARY, 2013

GROUP MEMBERS REG. NUMBERS

GROUP MEMBERS REG. NUMBERS

1. LUKIKO LUKIKO 14029/T.11

2. LENGEJU, ROBERT. V 14026/T.11
3. LENGTAMBI MICHAEL 13960/T.11
4. MWANAWIMA FLORENCE 13972/T.11
5. JENIPHER JOHN /T.11

6. NANYARO ANNETH 14143/T.11

7. RISHELA CLEMENTINA 13945/T.11
8. SHAO PAULINA 13942/T.11
9. KAPELA, JOEL S 14034/T.11
10. MATEMU SYPRIAN 13990/T.11

QUESTION

Administrative roles of the government have evolved for centuries from its primary role of
protecting the security of its citizens to multiple service delivery roles. Clearly illustrate this
evolution showing inter alia how administrative law plays a pivotal role in this process of
administration.

OUTLINE

1.0 INTRODUCTION

2.0 DISCUSSION

2.1 Evolution of the welfare state and the growth of administrative law

2.3 Administrative law and the process of administration

2.4 Roles of administrative law in the process of administration

3.0 CONCLUSION

4.0 REFERENCE
1.0 INTRODUCTION

The growth of administrative law is highly attributed to a change of philosophy as to the roles
and functions of the state and the government particularly. Striking a balance and bringing about
harmony between power and justice is the central mission of administrative law. Administrative
law is, therefore, a branch of public law that regulates the manner of exercising power by the
executive branch and administrative agencies so as to ensure its legal limits. 139

Administrative functions of the government have been changing from time to time depending on
the changing social, political and economic relations of the state. Traditionally, the functions of
the government were: first, securing the community against any external aggression and internal
strife; secondly, dealing with such mechanisms of collecting tax. This period is referred to as the
„laissez-faire140 state.‟ The primary function of the government was to protect the security of its
citizens and to maintain law and order in the state. Some authors refer to this as the „police state‟
meaning that the government had assumed only protective roles. There was very minimal state
intervention in other social and economic activities.

However, with the increase of population, increase of political activities and the increase in
technological innovation and inventions, the functions of the state changed to involving the
general provision and distribution of various social services. This is referred to as the welfare
state.141 Under the welfare, the state assumed different functions and increased its intervention to
multiple service delivery.

This paper will, therefore, be extracting, to some length, the transition from laissez faire state to
the evolution of the welfare state, simultaneously showing how the increase in functions of the

139
Michael, D and Yohannes, A. (2009). Administrative Law: A Teaching Material, p. 1
140
"Laissez Faire" is French for "leave alone" which means that the government leaves the people alone regarding
all economic activities. It is the separation of economy and state.
141
“Welfare state” is a concept of government where the state plays a key role in the protection and promotion of
the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable
distribution of wealth, and public responsibility for those unable to avail themselves of the minimal provisions for a
good life.
government facilitated the emergence and growth of administrative law. The paper will then give
a brief account of the roles of the government in the welfare state and lastly show how
administrative law plays a pivotal role in the process of administration.

2.0 DISCUSSION

2.1 Evolution of the welfare state and the growth of administrative law

The theory of laissez faire envisaged minimal government control, maximum free enterprise and
contractual freedom. The state was characterized as the law and order state; it only dealt with
matters which were a threat to public peace and order and peace of the king. Its roles were
limited to „a protector‟ and the management of social and economic life was not regarded as part
of government responsibility. 142 The state had three major functions namely; protection from
foreign invasion; levying taxes; and maintaining peace and order.

With the absence of government intervention in the essential areas of social and economic life,
the laissez faire policy resulted in human misery. Unequal bargaining power between labour and
management resulted in exploitation of workers, and dangerous work conditions. Moreover the
laissez faire failed to solve the economic ills and social evils which resulted into poverty,
ignorance, exploitation and suffering of the mass. In reality the state was ultimately negative.

The negative state was then forced, by circumstances, to assume a „positive‟ role from which the
state shifted from the theory of individualism to collectivism and out of the dogma of
collectivism emerged the concept of social welfare state.143 Under this concept the government
plays a key role in the protection and promotion of the economic and social well-being of its
citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth,
and public responsibility for those unable to avail themselves of the minimal provisions for a
good life. 144

2.2 Functions of the government in the welfare state

142
Michael, D and Yohannes, A. (2009). Administrative Law: A Teaching Material, p.4
143
Ibid. p. 4
144
Karen Angela, “Laissez faire vs. Welfare state” accessed on 15th January, 2013 through
http://triggeredmadness.blogspot.com/2010/08/laissez-faire-vs-welfare-state.html
In the modern systems of government the functions of the Government include; Protection of the
security of the state and its people; Provision of social service to the people such as; water,
electricity, other physical infrastructures, education, etc. It also plays a facilitative role in
productive activities, development of infrastructures, planning, etc. Again, it has regulatory role
in various activities done by private persons. Moreover, it has enforcement role of all
prescription of the law and other policy issues. The government formulates policies in order to
implement long and short term strategic plans. It resolves social disputes and other social
concerns.

With the welfare state in place, the functions of the government increased from a protector to
multiple service delivery. The administration now had to look into the provision of social
services like education, health and housing; it had to see into the operation of the market and
economy and the general wellbeing of its citizens. The change in the role of government and
thereby the transformation of the „police state‟ to the „welfare state‟ necessitated the need for
conferring more powers on the administration and simultaneously the need for controlling those
powers.145 Administrative law was therefore created as an instrument to control the expanding
governmental power.

Administrative law is the by-product of the growing socio-economic functions of the state and
the increased powers of the government; and controlling the manner of exercise of public power
so as to ensure rule of law and respect for the right and liberty of individuals is the key purpose
of administrative law. It accepts the need or necessity of power, simultaneously stressing the
need to keep the exercising of such power within the proper bounds and legal limits. 146

2.3 Administrative law and the process of administration

Acton once said: “power tends to corrupt but absolute power corrupts absolutely.” With this he
meant that power, if not kept to certain limits and boundaries will corrupt those holding such
power. Any power which is absolute opens the room for arbitrariness and wide discretionary
decisions. The two will endanger the liberty and tranquility of the individual citizens and to
avoid that danger, the powers of the administration and the procedures of administration has to

145
Michael, D and Yohannes, A. (2009). Administrative Law: A Teaching Material, p. 3
146
Ibid. p. 8
be kept in some defined limits, and this is what brought administrative law into existence. As it
will be shown hereunder, administrative law plays a crucial role in the process of administration.
It is this law which ensures that the principles of rule of law and good governance are observed
and simultaneously ensuring that the administrative organs does not have excess power or
exercise power beyond their jurisdiction, and making sure that the procedures of administration
are not arbitrary and providing remedies to an individual whose rights have been infringed by an
administrative action.

2.4 Roles of administrative law in the process of administration

The administrative process now has one feature that; it could evolve new techniques, processes
and instrumentalities, acquire expertise and specialization, to meet and handle new complex
problems of modern society. Administration has assumed such an extensive, sprawling and
varied character, that it is not now easy to define the term “administration” or to evolve a general
norm to identify an administrative body. It does not suffice to say that an administrative body is
one, which administers, for the administration does not only put the law into effect, but does
much more; it legislates and adjudicates. 147

Administrative law is primarily concerned with the control of the administrative powers.148 The
increase in level of state involvement in many aspects of life during the 20 th century, made the
need for a coherent and effective body of rules to govern relations between individuals and the
state inevitable. Administrative law embodies general principles applicable to the exercise of the
powers and duties of authorities in order to ensure that the myriad and discretionary powers
available to the executive conform to basic principles of fairness and legality. The roles of
administrative law are, therefore that:

First, it confers powers and duties on the administration. Through the sources of administrative
law like the Constitution, Statutes, delegated legislations, and prerogatives, the administration
acquires its powers and duties. For example „Chapter Two‟ of the Constitution of the United
Republic of Tanzania of 1977 149 confers powers and duties to the Executive of the United

147
Zalpuri, S: Training Package on Administartive law, p. 11
148
Ibid. p. 9
149
[CAP 2 R.E 2002]
Republic. Through this, administrative law defines the jurisdictions and powers of the
administrative organs. It has increasingly become important to control the administration,
consistent with the efficiency, in such a way that it does not interfere with impunity with the
rights of the individual. Between individual liberty and government, there is an age-old conflict
the need for constantly adjusting the relationship between the government and the governed so
that a proper balance may be evolved between private interest and public interest. 150

Secondly, it defines the procedures that have to be followed by administrative authorities in the
exercise of their powers. It is the demand of prudence that when powers are conferred on
administrative organs, effective control- mechanism be also evolved so as ensure that the officers
do not use their powers in an undue manner or for an unwarranted purpose. It is the task of
administrative law to ensure that the governmental functions are exercised according to law, on
proper legal principles and according to rules of reason, and justice fairness to the individual
concerned is also a value to be achieved along with efficient administration.151 Administrative
law plays a key law to ensure that the manner in which administrative an action is carried out
does not infringe the rights of individuals.

Thirdly, it spells out the limits of the powers and authority that can be exercised by the
administrative authority. If the official acted outside of or beyond the parameters set out by the
statutory provision, then the act is considered ultra vires. This means the act was outside his or
her jurisdiction or without lawful authority. This may result in a remedy available for an
individual adversely affected by the ultra vires act. Administrative law ensures that
administrative organs do not act beyond the powers conferred on them.

Again, it provides for the control mechanism over the administrative action. Administrative law
concerns with regulating the powers of administrative agencies lest abuse of such powers may
cause prejudice to public interest in general and to individual interest in particular.152 In addition
to creating various administrative agencies and empowering them with necessary power to carry
on specific social, economic and political programs in the interest of the public, administrative
law puts appropriate controlling mechanisms that restrain administrative agencies within the

150
Zalpuri, S: Training Package on Administartive law, p. 12
151
Zalpuri, S: Training Package on Administartive law, p. 12
152
Michael, D and Yohannes, A. (2009). Administrative Law: A Teaching Material, p. 160
scope of the powers entrusted to them. Some controlling mechanisms include internal
administrative control, parliamentary control and judicial control. All these aim to keep the
process of administration in line with the principles of justice and fairness.

Lastly, it protects rights of individuals who are affected by an administrative action. Whenever
rights are threatened or violated, people usually need the intervention of the law. Administrative
law is one of the most important laws that regulate the relationship between the strong-armed
administrative bodies and week individuals. In addition to providing general principles and
standards of behavior regarding the administration, this law tries also to devise mechanisms for
rectifying administrative illegality. 153

3.0 CONCLUSION

Therefore, Administrative Law deals with powers of the administrative authorities, the manner in
which the powers are exercised and the remedies available to the aggrieved persons when those
powers are abused by authorities. The main object of the study of administrative law is to
unravel the way in which these administrative authorities could be kept within their limits so that
the discretionary powers may not be turned into arbitrary powers.

The administrative process has come to stay and it has to be accepted as a necessary evil in all
progressive societies, particularly in a welfare State, where many schemes for the progress of
society are prepared and administered by the Government. The execution and implementation of
these programmes may adversely affect the rights of citizens. The actual problem is to reconcile
social welfare with the rights of individual subjects. As has been rightly observed by Lord
Denning: “Properly exercised, the new powers of the executive lead to the Welfare State; but
abused they lead to the Totalitarian State.”

153
Ibid. p. 230
BIBLIOGRAPHY
Statutes

The Constitution of the United Republic of Tanzania, 1977 [Cap.2 R.E 2002]

The Commission for Human Rights and Good Governance Act [Cap. 391 R.E 2002]

The Basic Rights and Duties Enforcement Act [Cap 3 R.E.2002]

The Judicial Service Act, 2005, Act No.6 of 2005

The Government Proceedings Act [Cap 5 R.E 2002]

Cases

Chumchua s/o Marwa v. Officer i/c of Musoma Prison and another, Crim. Case. No. 2 of 1988
(unreported

James F. Gwagilo v. Attorney General [1994] TLR 73

Books

Chipeta,B.D (2009) Administrative Law in Tanzania; A digest of Cases. Mkuki na Nyota

Publishers: Dar es Salaam

Kagzi, J. (2002) The Indian Administrative law, 6th Ed, Universal law Publishing Co.Pvt.Ltd:
Delhi
Oluyede, P. (1973) Administrative law in East Africa, E.A.L.B: Dar es Salaam
Partworth, N. (2005). Constitutional and Administrative Law, 3th Oxford University Press:
London
Shivji. I.G, et al, (2004) Constitutional and Legal system of Tanzania, Mkuki na nyota
Publishers Ltd: Dar es Salaam
Wade, E.C.S and Bradley, A.W. (1993) Constitutional and administrative law, 11th Ed,
Longman: London
Takwani, C.K. (2006). Lectures on Administrative Law.3rd ed: New-Delhi, Eastern Book
Company.
 MZUMBE UNIVERSITY
FACULTY OF LAW

SUBJECT : ADMNISTRATIVE LAW I

CODE : LAW 226
TASK : GROUP ASIGNMENT
LECTURER : MGETA, I.

GROUP MEMBERS REG.N0.

1. ATHUMAN ISSA 13984/ T.11
2. JULIUS SWEETBERT 13999/T.11
3. LYIMA NATHAIZYA 14041/T.11
4. MBURA ZUHURA 14022/T.11

5. MASHAKA JORDAN1 14005/T.11

6. BUNGA NEEMA 13975/T.11
7. FOY FAITH .F. 14061/ T.11
8. MTUNGUJA KHADIJA 14157/T.11
9. CHARLES ROBIN 13987/T.11
10. MLELE VICENT 14151/T.11

QUESTION:
The doctrine of separation of powers was aimed at maintaining the sanctity of each organ of state
and protects them from interference of one organ to another. That goal has never and will never
be achieved without leaving everything stands still. Why then can‟t we abandon the notion of
this doctrine? Do you second this observation? Substantiate your answer with practical
illustrations.
OUTLINE

1.0 INTRODUCTION

 Origin of the doctrine of separation of powers

 Montesquieu believes on separation of powers
 Wade and Phillips on separation of powers
 Proves of the existence of the doctrine

2.0 MAIN DISCUSSION

 Proves that the goal has never and will never be achieved
 Reasons why that we can not abandon the notion of the doctrine

3.0 CONCLUSION

 General overviews

4.0 REFERENCE

 List of books
 Statutes
 Cases
 Internet sources
 Other sources used.
1.0 INTRODUCTION

The origin of the doctrine of separation of powers

States throughout history have developed concepts and methods of separation of power. In
England, parliament from its origins at least seven centuries ago was central to an struggle for
power between the original executive (the monarch) and the councils of landowners, church
leaders and commons. Similarly judges, originally representing the executive, developed
increasing independence. Parliament was a significant force in an increasingly mixed form of
government by the time of the Tudors and soon afterwards was directly challenging the doctrine
of the divine right to power of the Stuart monarchs. The English Civil War (1642-60) between
parliament and monarchy resulted in the monarchy continuing but under an arrangement which
established not only parliament‟s legislative authority but also opened the way to the
development of the cabinet government.

In his Second Treatise of Civil Government, English philosopher John Locke (1632-1704) noted
the temptations to corruption that exist where “... the same persons who have the powers of
making laws to have also in their hands the power to execute them ... “. Locke‟s views were part
of a growing English radical tradition, but it was French philosopher, Baron de Montesquieu
(1689-1755), who articulated the fundamentals of the separation doctrine as a result of visiting
England in 1729-31. In his book of Del‟Esprit des Loix or The Spirit of Laws (1748),
Montesquieu considered that English liberty was preserved by its institutional arrangements.
Montesquieu state that:

“When the legislative and executive powers are united in the same person, or in the same body of
magistrate there can no be liberty, again there is no liberty if the judicial powers be not separated
from legislative and executive. Miserable will be where the same man or the same body weather
of nobles or of other peoples to exercise those three powers of enacting the law, executing public
resolution and judging the crimes” 154.

154
Montesque 1949 the spirt of the laws, the law jurisprudence.
 He saw not only separations of power between the three main branches of English government,
but within them, such as the decision-sharing power of judges with juries; or the separation of
the monarch and parliament within the legislative process.

Also other people like Wadey and Phillips who to them the concept of separation of power meant
that there are three different things; one; the same person should not form part of more than of
three organ of the government example ministers shall not sit in the parliament, second; one
organ should not control or interfere the function or the work of another organ example judicially
should be independent from executive, and third that one organ of the government should not
exercise the function of another example ministers should not have legislative power. Generally
the doctrine of separation of power mean keeping different organs of the government .155

DOES THE DOCTRINE OF SEPARATION OF POWERS EXIST?

Although Montesquieu separated governmental functions and separated governmental powers,

there is no clear one-to-one correspondence between the two because he did not insist on an
absolute separation. Thus, although the executive is a separate branch, it properly partakes in a
legislative function. This blending or overlapping of functions is in part necessitated by
Montesquieu's intention that separation check the excesses of one or the other branch. Separation
of powers here reinforces or even merges into balanced government.

In the case of Mwalimu Paul John Mhozya V. Attorney General156 it was held that the
balance of power between the three function of the government , namely the executive,
legislative and judiciary must be carefully maintained…….. One organ of the
government should not usurp the powers of another.

The doctrine of separation of powers originated in France but it spread to other government. The
United States of America was among the first governments which applied the theory. Also like other
democratic constitution the constitution of the united republic of Tanzania adopted the theory of the
separation of powers in both the territories . That is the United Republic of Tanzania . Article 4 of

155
http:// us constitution. Ph, hml
156
[1996] TLR 13
the constitution157 provides for the exercise of the state authority of the united republic of Tanzania .
That ,the executive functions of the state will be carried out by two executive of the state, Union
executive and that of the revolutionary government of Zanzibar. The same applied to legislature, the
legislative function will be carried by the Union parliament and house of representative of Zanzibar
and judiciary of the united republic and judiciary of revolutionary government of Zanzibar. Also in
Tanzania there are special provisions in the constitution which shows that there is separations of
powers in Tanzania. Such provisions includes article 112 {3}of the constitution158 which provides
that a person can not be appointed to be member of the judicially services commission if he is
member of parliamanent , article 84{2}&85{2} respectively provides that a minister or a deputy
minister shall not be elected to be a speaker or deputy speaker .and also article 67{2} {g} which
provides that a person shall not be elected to be a member of parliamanent if he holds a senior office
in the united republic

2.0 MAIN DISCUSSION

With regard to the question which state that the goal has never and will never be
achieved. without leaving everything stand still. In light of the definition of (Wade and
Phillip)In this observation we agrree it due to the following reasons:

It should be remembered that separation of powers do not mean lack of interaction among the
powers of the government, but the main thing in separation of powers is the issue of check and
balance. Check and balance do not mean interfereence, rather than means control by one of the
power or authority of the government against the other by making them counteract one another
actions. Through the theory of check and balance each branch controls the other without
interfering or influencing the functions of other organ of the state. In this executive checks the
function of the legislature, legislative to executive judicial to legislature and judicial to
executive. Madison J. says in arguing for the separation of powers that:

157
The constitution of the United republic of Tanzania, 1977
158
ibid
 Montesquieu did not mean that these departments ought to have no partial agency in, or
no control over the act of each other, but the doctrine was one of mutual restraints or
checks and balance159

Check and balance can be seen through the following things:

1. Judicial review

Judicial review is the doctrine under which legislative and executive actions are subject to review
(and possible invalidation) by the judiciary. A specific court with judicial review power must
annul the acts of the state when it finds them incompatible with a higher authority (such as the
terms of a written constitution). Judicial review is an example of the separation of powers in a
modern governmental system (where the judiciary is one of three branches of government). This
principle is interpreted differently in different jurisdictions, which also have differing views on
the different hierarchy of governmental norms. As a result, the procedure and scope of judicial
review differs from country to country and state to state.

For example in The Election Act section 112 in the case of Julius Ndyanabo v A.G160
the provision which required a petitioner to deposit a bond of 5 millions shillings in order
to file an election petition, and the high court held the provision to be unconstitutional in
respect of article {13} of the constitution of the United Republic.

2. Ministerial responsibility

This means that the respective minister is answerable to the parliament As it provided under
article 63 (3) (a) of the Constitution of the United Republic of Tanzania that:

159
Madson J.
160
Court of Appeal of Tanzania civil Appeal no. 64 0f[ 2001]{ unreported}
 “For the purpose of performing its functions, the nation assembly may ask any question
to any minister concerning public affairs in the United Republic which are with in his
responsibility.”

Example the Parliament of the United Republic of Tanzania during the Bunge sessions before
the other activities of the Bunge continue like the debate in the Bunge there is time for questions
and answer, were by member of a parliament asks the questions to different ministry and answers
from those ministry are replied either by minister or a deputy ministers.

Example, according to the record of hansard, during the time of questions and answer in
the meeting of 7 November 2012 One of the member of Parliamanent Hon. Martha
Moses Mlata ask the question to the Ministry of Prime minister office; Hon Martha M.
Mlata: “Mh. Mwenyekiti kwakuwa mheshiwa naibu waziri amekiri kwamba adhabu
zinazotolewa kwa wanaowapa mimba watoto wa shule ni ndogo ni lini hiyo sheria
italetwa bungeni?”

In answering that question the Deputy minister Hon Aggrey Mwanri state that:
“Mheshiwa mwenyekiti kwakuwa nimeeleza kwamba mchakato wa kuhuisha sheria hii
unaendelea na kwahiyo sasa namshauri waziri wa elimu kuleta bungeni ili tuweze
kujadili jambo hilo.”

Also article 53 of the Constitution of the United Republic of Tanzania gives the nation
assembly power to pass a vote of no confidence in the prime minister.

For example in last year under the supervision of Hon. Zitto Kabwe 70 signature was
collected from the member of the parliament to vote for having no confidence to the
Prime minister Hon. Mizengo Kayanza Peter Pinda.
WHY THEN CAN’T WE ABANDON THE NOTION OF THE DOCTRINE

It should be remembered that the notion of the doctrine or belief of the doctrine is in the
assumptions that the three organs of the government and its functions should be distinguishable
from one another;

The idea of abandoning the notion of the doctrine it means all functions of the government can
be performed by one organ for example executive take all government functions like enacting the
law, interpreting the law, provides peoples welfare, determines the rights of the people. There is
a need of the doctrine of separation of powers; the following are the importance of having the
notion

 The doctrine avoids the abuse of powers.

This means that when a single person or a group of people have the extreme amount of power
they can become dangerous to the citizens, so the doctrine of separation of power is a method of
controlling the powers of the organs of the government, because it become more difficult to
abuse the power.

Illustration

Even though the parliament has the power to enact the laws, the judiciary has the power to
declare whether the law is constitutional or unconstitutional through check and balance.

 The insurance of justice to the people’s .Through separation of power each organ of the
government can be independent so that people can get a fair justice through independence of
judiciary.

Illustration

If the executive has the power over the judiciary then there could be a bias because the judges
will act under the pressure or the interest of the executive.
  To avoid infringement of peoples liberty.

According to Montesquieu he had a view that if the legislative and executive power is united in
the same person or in the same person in the same body of magistrate there cannot be liberty.
This is due to the reason that apprehension may arise lest the same monarchy or senate should
enact tyrannical laws, to execute them in tyrannical manner. The same there is no liberty if the
judicial power be not separated from the legislative and executive. Where it joined with the
legislative, the life and liberty of the subject would then be legislator. When it is joined with the
executive power the judge might behave with violence and oppression. Therefore in order to
avoid that infringement of peoples right there should be a real separation of powers.

 It pays a major role in the formation of the constitution.

The separation of powers plays a great role in formation of the constitution to the extent power
can be and should be separate and distinct. Good example is U.S.A after getting its
independence, U.S.A applied the theory. In its constitution the doctrine of separation of power
has been raised in the constitutional level. Thus all legislative power is vested into congress, the
executive power is in president, and the judiciary power vested in the supreme court. Many of
the other constitution around the world offers some degree of separation of powers.

 The requiring for judicially impartiality

Where there is separation of powers, judiciary will be impartially meaning that there will be no
interference of duties hence judicial impaciality. The impacialty applies not only to the decision
itself but also to the process by which such decision made. Example a judge shall perfom his
duties without favour, bias or prejudice.

 To control administrative actions

Through separation of powers, each power of the government has to be assigned with their
own duties, judiciary, also legislature, and these duties should not be interfered. To say to
control administrative action it means to control executive from interfered with other organ
duties, since administrative we mean executive. Example executive not to control the duties
of judiciary.
3.0 CONCLUSION

It‟s the fact that there is no full separation of power as each organ of the government not to
depend each other. The true is that for efficiency government these three organ should interact
each other and it‟s what we call check and balance. Due to the reasons that mostly the executive
seems to control other organ, the main thing to know or to consider is that separation of power
do not mean lack of interaction among the powers, but that interaction should be on the basis of
equality, autonomy and freedom.
4.0 REFERENCES

CASES

Julius Ndyanabo V. Attorney General court of appeal of Tanzania no .64 of [2001]

Mwalimu Paul John Mhozya V. Attorney General [1996] TLR 13

BOOKS

Chipeta B. D .( 2009). Admnistrative law in Tanzania, Adigest of cases. 1st ed Dar es

saalam: Mkuki na Nyota publishers.

Jain M.P & Jain S.N (1986) Principles of administrative law 4th ed. New Delhi. Smt.
Rampyari wadhwa for wadhwa and company.

Takwan C.K (2004) lectures on administrative law, East book company.

ELECTRONIC SOURCES

www. Importance of philosophy. Com en. Wikipedia. Org

http: //plato Stanford. edu ./entries / montesque /#

bookshop . Blackwell.com. uk

OTHER MATERIALS

Hansard from Parliamanent

 LOCAL GORVERMENTS FINANCES ACT

(Chapter 290)

BY LAWS

Made under section 7(1) and 16(1)

LOCAL GOVERMENT TAX LAWS (BY LAWS OF TAX AND FEE) OF WAZEMBE
DISTRICT.2011

PART I

PRELIMINARY

Section

1. Short title
2. commencement
3. Interpretation
PART II

Imposition of tax

4. Power of the district to charge

5. Fees and taxes charged
6. Collection of taxes

PART III

Offences

7. Failuire to pay tax

8. Liability of the council
9. Tax avoidance
10. Punishment
 SCHEDULES

PART A

Taxation of Business Posters

PART B

SLAUGHTING SERVICES TAX

Slaughting places taxes

PART C

BUS STAND TAXES

PART D

BUSES TAX
GOVERNMENT NOTICE NO 5 OF 21st JANUARY 2013

LOCAL GOVERNMENT FINANCES ACT

(Chapter 290)

BY LAWS

Made under section 7(1) and 16(1)

LOCAL GOVERNMENT TAX LAWS (BY LAWS OF TAX AND FEE) OF WAZEMBE
DISTRICT.2011

1. These by laws shall be known as the laws of local goverments (by laws of tax and fee) of
Wazembe district, 2011 and shall come into operation after the announcement in the
goverment gazzete.

2. These by laws shall operate through out the area of jurisdiction of Wazembe district.
3. In these By-laws unless the context otherwise requires:-
"Authorized Officer" means any officer of the Councilor an agentauthorized by Council
to be responsible for the supervision and implementation of these by laws; “Cattles”
mean are all animals that are being kept by human being
“Council” mean the council of Wazembe.
“Crops” mean all the cash crops and forest
“Director” means the District executive director of Wazembe district
“Fee” mean are all payments that has been made to the district council of Wazembe for
all the services, permission and license given by the council

I
4.(1) The district shall charge fee and tax for services, and various license provided by the
district as it has been shown under the shedule.

(2) Except for all the payment of the fees paid for a certain period of time the payment of the fees
and taxes under these by laws shall be paid before the services.

Fee and tax by laws of Wazembe district .....................................................................................

Goverment notice No 5 (continues)

DUTY TO PAY TAX

5 .It is the duty of everybody entitled to pay fee and tax under these by laws to pay tax and fee in
accordance to the rules and laws provided.

6. (1) Fee and taxes charged in acordance with these laws shall be paid to the council or any
agent who will provide the receipt of the payment.

(2) It is the duty of every person who pays tax or a fee to ask for a receipt and will be no defence
to anybody that he paid tax or fee but he was not given a receipt.

7. Without affecting any rules provided under these by laws the authorised officer may enter in
any building for the aim of collecting fee or tax.

OFFENCES

8. (1) If any person who is entitiled to pay tax failed to do so in the time required to pay, the
council shall collect fee and tax by way of the court.

(2) Without affecting any rules provided under subsection (1) above, the council may collect the
debts of fee and tax by way of seizure and keep in hold of all the assets of the accused that have
the same value as the amount of tax and fee.

(3) After 14 days since the arrest of the assets of the accused the council shall have authority to
sell them by way of auction, if the assets are the perishable goods, the council shall have the
authority to sell them before the authority of the court, and that the due explanation shall be
given to do so.

9. The council shall not be liable to any loss incured by any way during the time of collecting the
assets or any that are in the holding of the council.

10. Any person who;

(a) will evade or avoid to pay tax or fee

(b) convince another person or a group of people to evade or avoid paying tax or fee

Fee and tax by laws of Wazembe district .....................................................................................

Goverment notice No 5 (continues)

(c)deny or fail to comply with the instruction of the authorised officer

(d) stop the authorised officer to perform his activities

Will be liable

(2) Where in any proceeding under these By-laws it is proved that, any person who will go
contrary to these by laws shall be liable and shall be brought to court, and if found guilt of any
accusation shall be entitled to pay fine of 50,000/= Tsh and or imprisonment not exceeding 12
months or both.

SCHEDULE

As created under section 4(1)

PART A

(a) Taxation of Business Posters

No Type of Amount

1.Shining advertisements 2000/=Tshs per every 100cm in a month

2. Advertisement by using microphones 20000/= Tshs per day

3. Advertisement of invitation to treaty 50000/= Tshs per day

Fee and tax by laws of Wazembe district ...............................................................................

Goverment notice No 5 (continues)

(b) Fees of renting the Council Properties

No Type of Asset Amount

1.Council hall 200000/= Tshs

2. Small seats 400/=Tshs

3. Small vehicles without fuels 60000/=Tshs

4. Big vihicles without fuels 15000/=Tshs

PART B
 SLAUGHTING SERVICES TAX

(a)Slaughting places taxes

No Type of animal Amount

1. Cow 3000/=Tshs for every slaughted cow

2. Goat/ sheep 800/=Tshs for every slaughted goat/sheep

3. Pig 2000/=Tshs for evey slaughted pig

Fee and tax by laws of Wazembe district .........................................................................

Goverment notice No 5 (continues)

(a) Auction Taxes

No Type of animal Amount
1.Cow 2000/=Tshs for every cow

2.Goat/ pig/ sheep 1000/= Tshs for every Goat/pig/sheep

(d) Skin Taxes

No Type of animal Amount

1.Cow 250/=Tshs per skin
2.Goat and sheep 150/= Tshs per skin
3.Pork
PART C
PART C

BUS STAND TAXES

No Type of car Amount
1. A car with 1 to 30 seats 2000/= Tshs
2.Acar with 1 to 65 seats 3500/=Tshs
3.To keep the bus at the 10000/=Tshs

PART D

BUSES TAX
Agricultural and forest products will be charged 5% of the selling price.

Fee and tax by laws of Wazembe district .........................................................................

Goverment notice No 5 (continues)
PART E

Tax of tables in the market 800/= per day

PART F

LICENSE AND FEE TAXES

No Type of lisence Amount
1. license of business 7000/=Tshs
2.Contracts permissions 8000/=Tshs
 3.Visiting Museums 3000/=Tshs
4. Registration of traditional healers 8000/=Tshs

Fee and tax by laws of Wazembe district .........................................................................

Goverment notice No 5 (continues)

PART G

The charge of digging, transporting rubble, sand, pebbles and stones………Sh. 3,000 per ton
The common seal of the Wazembe District Council was affixed here to in pursuance of a
resolution at a meeting of full Council dully convened and held on 21 day of January, 2011

ALLY HASSANI KUBANA

Chairman of the Council

DERRICK .D. MUHINA

District Director

I APPROVE,

Dodoma HON. CHARLES.H.NYIGU

1 July 2012 Prime Minister

MZUMBE UNIVERSITY
FACULTY OF LAW
GROUP ASSIGNMENT
QUESTION NO 11

NAMES REG NO
ABDULHAKIM HASSAN 14794/T.11
MAEDA UPENDO 14148/T.11
MASAWE FLORA .A 13961/T.11
PATRICK RONALD 13973/T.11
SADICK ELIAH 13957/T.11
MWEDI MWANAISHA 14051/T.11
MONTANO GENEROSA 13937/T.11
MWASONGWE NEEMA 14011/ T.11
SHARGY NASRA. K 13994/T.11
WEGESA SANJUKILA 15306/T.11
STEPEN SAMWELI 13940/T.11
BANGA DOTTO 14159/T.11

ASSIGNED BY:

INNOCENT MGETA

i
 MZUMBE UNIVERSITY

FACULTY OF LAW
SUBJECT: ADMINISTRATIVE LAW

TASK: GROUP ASSIGNMENT

NAME REG. NO

KULWA FABIAN 14138/T.11

KASHNDE LUCAS 13983/T.11

JOHN NEHEMIA 14153/T.11

MAWALLA E. ELLINAILKE 14142/T.11

KALUGIRA VIVIAN 14147/T.11

LUCAS KULWA 13970/T.11

MAHUNGA NEEMA 13956/T.11

MALELA MARY 13969/T.11

MTANI NYAMISANGO, E. 13966/T.11

MBAGGA R. MUSSA

EDSON SELEMANI

KISSA G. KASONGWA 14783/T.11

 QUESTION:

The Farming and Grazing Act, 2012 empower District Councils, under Section 12,
power to make by law(s) to regulate Farming and grazing activities within their areas .
Wachovu District Council, acting under S.12 of the Act, enacted By- laws. The
evidence shows that the process of making By-laws came as surprise to all inhabitants
in this District and they came into force the same day were published in the
government Gazette. Regulation 6 of the said by laws stated that;

6(1) No person shall be allowed to keep domestic animals within the area of the
District Council, except where the person keeping those animals is a native
Makonde.

6(2) Nothing under these by law(s) shall be questioned by any person before
any court of law. Whoever aggrieved with these by laws may appeal to the
District Director whose decision shall be final and conclusive.

Mnywagongo, is aggrieved by the decision of the District Council to make what he

term as “outrageous by-laws.”He comes to you seeking for legal advice on whether he
has any ground(s) to challenge the District Council’s by-law(s). Advice him
accordingly.
From the facts given, two issues can be raised:

(i) Whether the District Council confined itself on the Procedural requirements
upon making and enforcing the said enacted By-Law(s).

(ii) Whether the By-law(s) enacted by the District Council are in compliance with
the substantive intra vires of the delegated delegation.

In dealing with the first issue, it is a cardinal principle of the law that before the enactment of the
By-law(s), the following requirements must be fulfilled, namely, notice of intention, consultation
and publication.

Notice of intention of the enactment of such by law(s). Authority delegated by such

power should inform the general public on the intention of enactment of the respective
by-law(s). This is to be done in order to make the public aware of the prospective by-
law(s) which are going to be enacted by the authority which has such authority.

Consultation: the term consult implies to a conference of two or more persons in respect
of a topic in order to enable them to evolve a correct solution of a problem. The general
public should have full and effective deliberation, exchange of view points, meeting of
minds and examination of relative merits of other point of view. Consultation is not
complete unless the parties thereto make their respective point known to others and
examine relative merits of their views. Even when consultation is not a legal requirement,
such step generates a greater confidence of the persons who may be affected by an action
that may be taken by the authority.

Publication: the aim of publication into Government Gazette is to make the general
public aware of laws enacted by the respective authority and on the commencement of
such By-law(s).

From the facts given, the District Council of Wachovu which has been delegated power to
make By-law(s) concerning farming and grazing activities within their District, failed to comply
with the requirements on the enactment of such By-law(s). This is due to the reason that the
general public was not aware on the intention of the Council on the enactment of such By-law(s)
because they were not given a Notice. Also from the facts given it is clear that the inhabitants of
Wachovu District were not consulted to in the process of enacting such By-law(s), had they been
consulted, the position under the Regulation 6 (1) could probably be different.

Also with regards to consultation it is clear from the facts that only Ward councils
participated in the whole process of making By-laws. It was expected that as far as consultation
is concerned, the inhabitants of that area who were likely to be affected by the prospective by-
laws would be consulted to give their views in order that the Authority concerned would take
into account the views of the inhabitants when making such by laws.

With regards to publication, the Wachovu District Council failed to comply with this
requirement as the publication made lacked the reasonable time on the commencement of the
same. It is expected that before any By-law(s) come into effect or force the members of the
community shall be given a reasonable time to access such law(s) and come familiar with that
enacted law(s) since ignorance of the law has no excuse.

Therefore, from the discussion above the Wachovu District Council failed to comply with the
procedural requirements of the enactment of such By-law(s) by the administrative authority.
Hence non compliance of the above mandatory procedural requirement renders such By-laws to
be invalid on the ground of procedural ultra-vires.

In dealing with the second issue, the general rule is that substantive intra vires requires the
delegated authority to enact By-law(s) in conformity with the Constitution, should be reasonable,
should not exclude judicial review and also should not be malafide.

From the fact given, Regulation 6(1) of the enacted by law(s) provides, “no person shall be
allowed to keep domestic animals within the areas of the District Council except where the
person keeping such animals are native Makonde.” This by law(s) is unconstitutional since it
contravenes Article 13(2), which provides that, “no law enacted by any authority in the United
Republic shall make any provision that is discriminatory either of itself or in its effect.”161

161
The Constitution of the United Republic of Tanzania of 1977
 Article 13(4) provides that, “no person shall be discriminated against by any person or
any authority acting under any law or in the discharge of the functions or business of any
state office.” 162

These two articles cited supra, accumulatively prohibit any authority from enacting law(s), which
will be discriminative in nature. As far as Regulation 6(1) is concerned, it is unequal in operation
between the different classes since it discriminate people who are non native makonde from
keeping domestic animals within the areas in the District. Thus, Regulation 6(1) is null and void
as per article 64(5) which provides, “…………...in the event any other law conflicts with the
provisions contained in this Constitution, the Constitution shall prevail and that other law, to the
extent of the inconsistency with the Constitution, shall be void.163

Also the regulation 6(1) is unreasonable due to the fact that it does not provide any reason on
why non-native Makonde are not allowed to keep domestic animals within the said District. This
shows that the lawmakers had bad faith or malafide on enacting such Regulation. This is
supported by the case of Kruse v Johnson,164 in which in exercising of the power conferred by
the parent Act on the Kante Council, a by law was made prohibiting any person from playing
music or singing in any public place or high way within 50 yards of any dwelling house. It was
held ultra vires on the ground of unreasonableness.

With regards to Regulation 6(2), which states that “nothing under these by law(s) shall
be questioned by any person before any court of law. Whoever aggrieved with these by law(s)
may appeal to the District Director whose decision shall be final and conclusive. This Regulation
is seen to ouster jurisdiction of the court to enquire into the legality of a Regulation made by the
local Authority. Thus this Regulation is inconsistent with Article 13 (6) (a) which provides that
“when the rights and duties of any person are being determined by the court or any other
agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal
remedy against the decision of the court or of the other agency concerned” 165 Since Regulation
6(1) has the effect of oustering the court‟s jurisdiction to make judicial review then such bylaws

162
The Constitution of the United Republic of Tanzania of 1977
163
Ibid.
164
(1998) 2 QB 91
165
Op.Cit, The Constitution of The United Republic of Tanzania of 1977.
are null and void as provided under Article 64(5) of the same Constitution166. This is supported
by the case of Tanzania Air Service Ltd v Minister for Labour, Attorney General and the
Commissioner for Labour167 when it was held that;

The provision that the Minister's decision is final and conclusive does not mean that the
decision cannot be reviewed by the High Court; indeed no appeal will lie against such
a decision but an aggrieved party may come to the High Court and ask for prerogative
orders.

CONCLUSION

According to the scenario, Mnywagongo has good grounds to challenge the District
Council bylaws, the reasons being that of non compliance with the procedural requirements of
the enactment of the bylaws such as notice, consultation and publication. On the other hand there
is substantive ultra vires which render the bylaws invalid on the grounds of being
unconstitutional, malafide, unreasonableness and exclusion of Judicial Review. Basing on the
aforestasted grounds, Mnywagongo can make an application before the High Court of the
relevant registry applying for judicial review of the administrative action.

166
Op.cit
167
[1996] TLR 217 (HC)
 BIBLIOGRAPHY.

STATUTE
The Constitution of the United Republic of Tanzania of 1977

CASES
Kruise v Johnson (1898) 2 Q.B 91

Tanzania Air Service Limited v Minister for Labour, Attorney General & The Commission for
labour.[1996] TLR 217

BOOKS
Elliot M, et al, (2007). Administrative Law, 3rd edition. London: Oxford University Press

Leyland. P. and W. Terry.(1997). Administrative Law, 3rd Ed, London: University of North
London.

Takwan, C.K.(2007). Lectures on Administrative Law. 3rd Ed, New Delhi: Eastern Book
Company.
 OUTLINE.

Introduction.

 Issues raised.

Main body.

 Application of principles to the facts given.

 Arguments.

Conclusion.
 MZUMBE UNIVERSITY

FACULTY OF LAW

SUBJECT : ADMINISTRATIVE LAW I

SUBJECT CODE : LAW 226

COURSE : LLB II

NATURE OF WORK : ASSIGNMENT GROUP NO 13.

PARTICIPANTS REG. NUMBERS

1. DATIUS R FAUSTINE 14038/T.11

2. CHIZA J KABWEBWE 14137/T.11
3. ANTHONY GLADNESS C. 14163/T.11
4. KIZYA VICENT 14173/T.11
5. IRENE THOMAS 14060/T.11
6. MARUKA GISERA 13955/T.11
7. KINUNDA LILIAN 13952/T.11
8. YAHAYA KHARIM 14164/T.11
9. SAMWEL TUSAJE 13979/T.11
10. ZARUBU R. MVUMBO 14156/T.11
11. MGOMBELA WENDE W. 13939/T.11
12. MANGUNU ISACK B. 14046/T.11
13. IDDI YASSIN 14816/T.11
14. JULIUS REHEMA K. 12092/T.10
QUESTION: Mamito has been dismissed from employment as a branch manager of the FDG
corporation. the Board of Director dismissed her on the basis of an audit report whose contents
were never shown to Mamito to enable her to contradict them. The dismissal came immediately
after the audit report was tabled to the Board of Directors for deliberations, recommendations
and further actions. At the time of reaching the decision to dismiss Mamito, the latter was on
official trip to abroad representing the corporation. Under the charter establishing FDG
corporation, the power to dismiss employees is vested to the supreme council chamber of the
corporation and such power cannot be delegated to any other organ of the corporation
.Assuming that the laws applicable in the public service apply to all employees in the FDG
corporation. What would be your legal advice on the procedures taken to dismiss Mamito? D0
you think he has any remedy within the same legal framework?
FRAME WORK
1.0 INTRODUCTION
 1.1 Formulation of issues

2.0 MAINBODY

2.1 Application of legal authorities to the legal issues raised

2.2 The remedies available

3.0 CONCLUSSION
 INTRODUCTION

From the hypothetical facts given in the scenario of the dismissal of one Mamito from office while
assuming that the laws applicable in public service apply to the corporation she works with, on looking
to the legal advice as to the procedurestaken to dismiss her and whether she deserves any remedy
within the same legal frame work we have firstly raised the following issues;

i. Whether the Board of Directors had the power to dismiss Mamito from office.
ii. Whether the procedure taken to dismiss Mamito amount to lawful termination.
iii. Whether Mamito is entitled to any remedy.

MAINBODY

1. Whether the Board of Directors had the power to dismiss Mamito from office.

The position of the law with regards to the power of dismissing an employee as provided within the
given facts is provided under the charter establishing FDG Corporation, on effect that the power to
dismiss employees is vested to the Supreme Council Chamber of the Corporation and such power is
said not to be delegated to any other organ of the Corporation. Therefore according to this position the
Board of Directors taking chance to dismiss one Mamito from office against the laws of the
corporation due to the reason that the only organ vested with such power to dismiss employees was the
Supreme Council Chamber of the Corporation and such power was not delegated. This can be proved
in the case of R v. Minister for Transport 168, The court held that, even though the minister was not
empowered to revoke the silence, he passed the order of revocation of silence. The order was quashed
on the ground that it was passed without jurisdiction and therefore ultra vires Therefore they acted
ultra vires by dismissing Mamito from work hence that order is null and void.

2. Whether the procedures taken to dismiss Mamito amount to lawful termination.

For the public servant to be dismissed from the office, procedures should be followed to determine
whether the employee deserves such dismissal. The position of the law with regards to procedures to
be taken in dismissing an employee in the public services is provided under section 23(2) of the Public

168
(1984)1 KB 227
Service Act169 that the power to dismiss a public servant shall not be exercised unlessa disciplinary is
preferred against the public servant, this provision requires that the charge must have been saved to the
employee stating the nature of the offence which he was alleged to have committed. This is supported
by the regulation 44(1) of Public Service Regulations, 2003 170, which provides that the formal
proceedings for a disciplinary offence shall be instituted against a public servant, unless he has been
served with a charge or charges stating the nature of the offence which he is alleged to have
committed. Also the public servant is afforded an adequate opportunity to answer the charge. This is
supported under Regulation 44(5) of the Public Service Regulations, 2003171 which provides that the
notice shall be addressed to the accused public servant inviting him to state in writing within such
period as may be satisfied in the notice, the grounds upon which he relies to exculpate himself. In the
Case of I. S. Msangi v. Jumuiya ya Wafanyakazi and another172the appellant sued the respondent in
the High court for defamation and wrongful termination of employment and the basis of his complaint
was that he was not given an opportunity to be heard by the body which terminated his employment.
In an appeal it was held that there was a necessity giving an opportunity to be heard by the body which
ultimately decided his fate. Also in the case of Byne v. Kinematograph Renters Society Ltd173,Lord
Harman emphasized that, the accused person should know the nature of the accusation made, and
should be given an opportunity to state his case and the tribunal should act in a good faith.

From the scenario, Mamito was dismissed on the basis of audit report of which the contents were
never shown to her and the procedures were not well followed towards her dismissal, therefore
dismissing Mamito was not a lawful termination.

3. Whether Mamito will be entitled to any remedy in this legal frame work.

As far as the dismissal of Mamito from office was against the law, she is entitled to the following
remedies;

Appeal against the decision to the commission. Mamito is entitled to appeal against the decision to
the commission so as to seek for the right decision for such matter. The provision of the law under

169
ACT NO. 8 OF 2002
170
GN NO. 168 PUBLISHED ON 20/6/2003
171
Ibid
172
[1992] T L R 259
173
(1958)1 ALL ER 109
 section 25(1)(b) of the Public Service Act174allows the public servant to appeal to the commission
against the decision of the disciplinary authority and the commission may confirm, vary or rescind
the decision of that disciplinary authority. This is also stipulated under regulation 60(2) of the
Public Service Regulation of 2003175, therefore Mamito should follow the procedures and file an
appeal against the decision of board of directors.

Judicial Review is another remedy which Mamito should rely upon for the order to be quashed on the
grounds that her right to be heard was infringed and board of directors acted ultra vires because
dismissing Mamito was not upon their jurisdiction. In the case of Jama Yusuph v. Minister for
Home Affairs176, It was held that, even though it is not an easy or simple matter to interfere with or
quash a minister decision or order, courts have authority or power, even duty to quash them in a
proper and fitting cases. In doing so, of course.the courts are not acting as appellate bodies over the
minister decision or orders, they only investigate the legality or otherwise of the decision or orders.
So Mamito can take the matter to the court for judicial review and the decision can be quashed

All in all Mamito‟s dismissal by the board of directors was not proper in the eyes of law since it did
not follow the required legal procedures, even if such dismissal would have been done by the
Supreme Council Chamber of the Corporation still will not be valid in the sense that it contravened
the provision of the law as she must be given the chance to be heard as per Section 23(2)(b) of the
Public Service Act 177

174
ACT NO. 8 OF 2002
175
GN NO. 168 PUBLISHED ON 20/6/2003
176
[1990] TLR 80
177
ACT NO.8 OF 2002
 REFERENCE

STATUTE:

Public Service Act,2002

Public Service Regulation, 2003

CASE LAW:

Byne v. Kinematograph Renters Society Ltd (1958)1 ALL ER 109

I. S. Msangi v. JumuiyayaWafanyakazi and another[1992] TLR 259

Jama Yussuph v. Minister for Home Affairs [1990] TLR 80

R v. Minister for Transport (1984)1 KB 227

BOOKS:

Chipeta B. D (2009) Administrative Law in Tanzania, A digest of cases, MkukinaNyota

Publishers, Dar es salaam.

Takwani C. K. ( 2004 ).” Lectures in Administrative Laws” Eastern Book Co., Delhi
 MZUMBE UNIVERSITY
FACULTY OF LAW
BARCHELOR OF LAW
CLASS: LL.B11

COURSE: ADMINISTRATIVE LAW 1

CODE: LAW 226

TASK GIVEN: GROUP PRESENTATION

DATE: JANUARY, 2013

PARTICIPANTS REGISTRATION NUMBER

JULIUS JOHN 14030/T.11

NDONDOLE ANANIA, J 13964/T.11

ELLY MASOKA 14040/ T.11

MWANAKOMBO JUMA 14165/T.11

HOPE J. PAUL 14064/T.11

NYATEGA ROSE, C

NTABAYE FRANK 14055/T.11

SHENGOMA DICKSON, K 14149/T.11

TEMBA NOVATUS B. 14876/T.11

RAPHAEL JENIFA 13977/T.11

DERICK STANLEY, D 13997/T.11

MUSSA AMIR 14048/T.11

LINDA O. MMBAGA 13938/T.11

QUESTION 14

Carefully answer the following scenario

(a) Jombi is a senior Human Resources Officer of Kulabure Co. Ltd which is a public company
own 100% by the Government. Its employees are regarded as public servants. Jombi has
received directives from the management to write immediately a letter to 30 employees
terminating their employment for operational requirements. Jombi is not sure that the process
should be that quick as the management is contemplating. Do you support Jombi‟s view?
Substantiate.

(b) The President of the United Republic of Tanzania is visiting the Nyaguge Region and has
received a report showing that there was huge loss of public funds allegedly because of unlawful
misappropriation. The President has decided to terminate 6 public servants of that Region for the
so called public interests. How do you assess this exercise of power by the President, is it
proper? Why?
TABLE OF CONTENTS

 INTRODUCTION
 MAIN BODY
 CONCLUSION
1.0-INTRODUCTION

Generally, the removal or the termination of the public servant from the office has to adhere to
rules and the regulation provided by the relevant laws governing the whole procedures. Such
laws include Public Service Act 178 which goes together with The Public Service Regulations
of 2003 And Public Service Scheme of 2003. Other laws including Employment and Labor
Relations Act of 2004179, Public Service Negotiation Machinery Act and Labor Institution
Act of 2002.As far as the given scenarios are concerned, this work intends to show the
procedures provided from the laws and the regulations which has to be followed in removing the
public servant from the office.

2.0-MAIN BODY

From the scenarios given,

(a) We do support Jombi's view, that he is not sure that the process should be that quick
as the management is contemplating. This is because the law is clear on the
principles that an employer should comply with in the process of termination based
on operational requirements. The term operational requirements is defined under
section 4 of the Employment and Labor Relation Act of 2004 as requirements
based on the economic, technological, structural or similar needs of the employer.

Therefore these principles that an employer should comply with in the process of termination
based on operational requirements are provided under the Employment and Labor
Relations Act 2004 under Section 38(1), the following are the principles to be adhered;

I. The employer should give notice of any intention to retrench as soon as it is

contemplated. Jombi was directed to give letters to 30 employees terminating their
employment basing on operational requirement but he was of the view that this was
quick because a notice had to be given before giving the letters of termination as
provided under section 38(1)(a) of Employment and Labor Relation Act of 2004.

178
Act No.8 of 2002
179
Act no. 6 of 2004
 II. The employer should disclose all relevant information and the intended retrenchment
for the purpose of proper consultation. the principle suggests that there should be
proper consultation and disclosure of relevant information between the employer and
employee for the purpose of enhancing transparency in the process of termination but
Jombi was immediate ordered to give 30 letters to his employees and this wouldn't
have given chance to the government as the employer to disclose relevant information
and consult the employees for the purpose enhancing transparency thus violating this
principle provided under section 38(1)(b) of the Employment and labor relation Act
III. The employer should also consult prior to retrenchment or redundancy on the reasons
for the intended retrenchment, any measures to avoid or minimize the intended
retrenchment, the method of selection of the employees to be retrenched, the timing of
the retrenchment and severance pay in respect of retrenchments. Jombi was of the
view that this was quick as none of these consultations were made prior to the order
given to him from the Government of terminating 30 employees neither was the mode
of selection of these 30 employees was stipulated and there was no clear stipulation of
time.

The employer should give notice, making disclosure and consultation with any trade union
recognized in terms of section 67 of the Employers and Labor Relations Act, any registered
trade union with members in the work place not presented by a recognized trade union and any
employees not represented by a recognized or registered trade union. For the purpose of
protecting workers rights they form trade unions because these unions functions as agents to
them then it is important to adhere to this principle that they should also be consulted in regard of
termination of employment for operational requirements but Jombi was given and it is not shown
where the government consulted with the employees trade unions regarding the matter.

(b) It is well settled that the President has enormous power concerning the exercise of his
functions in running out of the state affairs. The president is declared in the Constitution as the
Head of State, the Head of Government and the Commander-in-Chief of the armed forces180.

180
As provided under Article 36(2) of The Constitution of the United Republic of Tanzania 1977 [CAP. 2 R.E 2002]
Generally the following are the powers or functions of President in as far as the public service is
concerned:

 President has power to establish or abolish any office in the United Republic181.
 The President has power of filling various vacancies in the public services particularly to
appoint various heads of different ministries in the country, departments and other
different government agencies.
 Is responsible for administering oath or affirmation to a number of officials in the public
service.
 He has powers to remove or retire the public servant from the office for public interest as
provided under section 24(1) of the Public Service Act 182 and regulation 29 of the
Public Service Regulations of 2003
 President is also the disciplinary authority of all his appointees and appellate authority in
the public service.

In as far as the question is concerned the question of whether President can terminate public
servants from public service for public interest is supported by the provision of section 24(1) of
the Public Service Act 183 which delineate that the president may remove any public servant from
the service of the Republic if the President considers it in the public interest to do so.

In the scenario given the stage taken by the President to terminate 6 public servants from the
service comes after receiving a report showing that there was a huge loss of public funds. In
assessing the exercise of powers or functions of the President in terminating those public
servants, it is much important to confine in the first instance on what a report is. In normal
circumstances, prior the report to be produced concerning employment matters in public service
there must be a procedure constituting the matter in issue. If the term report can be construed in
its natural meaning then it will incorporate clearly the procedures.

In which among other things those procedures are as follows, firstly the preliminary investigation
must be conducted in order to determine the liability of a person concerned if any. Secondly the
public servant must be given a notice concerning the charge or liability against him. In a sense
181
Under Article 36(1) of The Constitution of the United Republic of Tanzania, 1977
182
No 8 of 2002
183
ibid
that they could not be taken or terminated by surprise and the spirit behind issuing them a notice
is to prepare a defense if any when required.

And third the public servant must be given or afforded an opportunity to be heard. The rule is
commonly referred in Latin words as audi alteram paterm which literally means hear the other
side. The rule ensure that no one should be condemned unheard.

Therefore regarding whether the exercise of power of President in terminating 6 public servants
was it proper or otherwise it depends on the consideration of reports given to President. If the
report was not a final report in which it could be saving the purpose of either complaints then the
procedures provided for under Regulation 29 of the Public Services Regulation of 2003 should
be taken into consideration as far as the termination of public servants for public interest is
concerned. Non compliance of the procedures may render the termination improper.

If the report was final then it means that all other procedures had been followed as prescribed for
such a matter in which the preliminary investigation, issuing notice to allow them to prepare a
defense if any as well as giving them an opportunity to be heard. In which now in that
circumstances it can be said that the termination concerned was proper.

Furthermore, from the ruling made in Saidi Juma Shekimweri v. Attorney General184, where
the applicant sought an order of certiorari to bring up and quash a decision of the President of the
United Republic `retiring' the applicant, an immigration officer, in the public interest. It appeared
that the applicant had been employed by the Government of Tanzania for some years without
having been subjected to any disciplinary sanction. The applicant had read a newspaper report of
his dismissal for allegedly receiving bribes. About two months later the applicant received a
letter informing him of his retirement. The applicant appeal on the ground the decision of the
President to retire him in the public interest is invalid in law and ought, therefore, to be quashed
by the High Court. Following the use of the improper procedures and citing of the irrelevant
sections, the Court interalia held that the decision was improperly exercised and the president is
entitled in law to follow all procedures expressed in the relevant laws before the termination of
any public servant from the office.

184
[1997] T.L.R 3
On other circumstances as the scenario is concerned it simply imply that the huge loss of public
funds because of unlawful misappropriation it amounts to establish the issue of disciplinary
ground in which to determine liability the Regulation 36 of the Public Service Regulation of
2003 read together with Clause 46 of the Public Service Scheme of 2003 will be applied and
taken into consideration in which the disciplinary authority shall make preliminary investigation
before instituting disciplinary proceedings.
 BIBLIOGRAPHY

Statutes.

Employment and Labor Relation Act of 2004

The Constitution of the United Republic of Tanzania, 1977 [CAP 2 R.E 2002]

The Public Service Act, [No. 8 of 2002]

The Public Service Regulations, 2003

The Public Service Scheme, 2003

Cases referred.

Saidi Juma Shekimweri v. A.G [1997] T.L.R 3

 MZUMBE UNIVERSITY

FACULTY OF LAW

COURSE: LLB
SUBJECT: ADMINISTRATIVE LAW 1
-SUBJECT CODE: LAW 226
TASK: GROUP ASSIGNMENT
LECTURER’S NAME: MR I MGETA.

PARTICIPANTS REGSTRATION NO
MAGEZI JUSTUS ………………......……….……..........14058/T.11
MUSHI, SIMON …………………......……….…………..14054/T.11
LAUDEN MOSES………………......…………….............14817/T.11
HINDISHI, LUGIKO……………......………….………...14003/T.11
CHUNGU IRENE………………......………….………... 14177/T.11
ABDULQADIR FAUDHIA………......…………………..14032/T.11
MAISORY, THOMAS…………….....…………………...14178/T.11
NKANDA, FRANK…………………....………….......... 14018/T.11
DAFFY, REHEMA. R………………....…………………14154/T.11
CONSTANTINE, LIGHTNESS………....……………….14023/T.11
KAGONJI JOSEPH………………………....……………14010/T.11
NJAU, SOPHIA………………………………………........13992/T.1.
MOHAMMED NASORO…………………………………14001/T.11
MROSSO, CHARLES A.......................................................13932/T.11
 OUTLINE

1.0 INTRODUCTION

Material facts of the case in brief

2.0 MAIN DISCUSSION

(a) “Whether the act of Mmbeya to disclose the secret of disciplinary board as a public servant
can be held liable”
(b) “Whether the procedures to dismiss 6 employees by the Kiboko disciplinary board were
conducted accordingly”

3.0 CONCLUSION
1.0 INTRODUCTION

The scenario is about a senior public servant who was a member of a disciplinary board and he
participated in certain decision but he was not satisfied with the decisions and he was a member of a
certain opposition political party, he disclosed the information of the decision of the board
including document which were tendered in the board‟s meeting.
Referring back to the scenario the main issue is;
(a) “Whether the act of Mmbeya to disclose the secret of disciplinary board as a public
servant can be held liable.”

Public servant means a person holding or acting in a public service office. 185 Every public servant
is entitled to have certain rights which are such as Respect to Human Rights and being courteous,
discipline and diligence, team work, pursuing of excellence in service, transparency and
accountability, exercise of responsibility and good stewardship as well as Political neutrality.
Democratic Rights that has the rights of being a member of any political party, and can vote both
for his/her political party and in general election.186
According to Rule 5(i)187 provides that “A Public Servant shall not use any official document or
photocopy such as letter or any other document or information obtained in the course of
discharging his or her duties for personal ends.” As from the scenario the act of Mmbeya taking
out documents which were tendered in the board‟s meeting to the political party, marked the
violation of Code of Ethics and Conduct for the Public Service and is against the Regulation 65(1)
of The Public Service Regulations of 2003. Therefore, as the public servant he had the duty to
maintain the official information confidential without disclosing any document as per Section 3188
which states that A Public Servant shall not disclose confidential or official information which has

185
Section 3 of Public Service Act, NO.19 2004
186
Regulation 65(1) of Code of Ethics and Conduct for the Public Service
187
Regulation 65 (1) The Code of Ethics and Conduct for the Public Service
188
ibid
been communicated to or has been availed while discharging official duties without permission. An
employee shall continue maintaining secrecy and confidentially of official information even after
one has left the Public Service.
Mmbeya as the Public Servant has the Constitutional right to participate in political activities and
that participation should not influence performance of Public Service that is, he should have
maintained political neutrality. Shall not pass information or documents avail through his or her
position in the service to his or her political party.

Generally, Mmbeya can be held accountable for violation of Rule III of discipline and diligence and
Rule IX of Political neutrality due to his action of disclosing the documents and failure to maintain
political neutrality.

(b) The scenario is about the dismissal of the 6 employees concerning disciplinary matters. The
issue is about the procedures to be followed by the board in order to dismiss the 6 employees
concerning disciplinary matters.
With regard to the scenario on the factors on which The kiboko Disciplinary board should take
into consideration in dismissing those 6 employees. Section 23(2)189 provides that, “Before any
disciplinary action is taken against any public servant there must be; preliminary investigation,
the public servant must be given notice of charge against him, the public servant must be
afforded an opportunity to be heard.
Therefore, the Kiboko disciplinary board before dismissing 6 employees from employment, the
board should take into consideration that the disciplinary proceedings and all such matters
relating to discipline of public servant are governed by the Public Service Act whereby the
power to dismiss a public servant shall be exercised under the following procedures;
(i) Conduct the preliminary investigation as per Regulation 36190. Therefore the board
should conduct preliminary inquiries before instituting disciplinary proceedings.

(ii) The public servant must be given notice of the charge against him as according to
Regulation 44(5).191 The board should provide the notice to the accused public servant

189
Public Service Act, N0 19 0F 2004
190
of the Public Service Regulations, 2003
191
ibid
 inviting him to state in writing, within specified time in the notice and grounds upon which
he relies to exculpate himself before instituting the charge. 192

(iii) The public servant must be afforded an opportunity to be heard, Fair procedure is
fundamental that both sides/parties be heard that a board with power to act and therefore affect
property, liberty, rights and character of employees, that board or administrative authority has to
give an opportunity of being heard before it goes on. Therefore the board should listen to every
employee without any bias.
However Right to be heard (audi alteram partem rule) principle of natural justice before the
person condemned or judged he/she granted opportunity to present his side of story 1 should
adequately briefed of the case facing him not only that but also conducting a meaningful re
examination of the witness deposing against him if he has access to everything against him. 193

In Tanzania under Article 13 (6) (a) of the Constitution of United Republic of Tanzania of 1977
Which state that, “Where the rights and duties of any person are being determined by the Court
or any other agency ,that person shall be entitled to a fair hearing and to the right to appeal or
194
elaborated in the case of Mohona v University of Dar –es- Salaam , The appellant was
terminated from employment by the defendant on disciplinary ground he appeal to the Labour
conciliation Board and successful . The defendant appeal to the Minister for Labour, the
appellant was not supplied a copy of the memorandum of appeal substituted by the defendant to
the Minister was given an opportunity to be heard by the Minister before making his decision,
the Minister revised the decision of the Labour conciliation board adhered the appellant to be
paid his termination benefit. The appellant went to the High Court challenging the termination
and seeking a declaration that his termination was invalid as procedure laid down under both
University of Dar es Salaam Act of 1970 No. 12 of 1970, Security of Employment Act of 1964
were not followed. Judge Kisanga held that the breach of natural justice as the ground of appeal
of the defendant, so the decision was null and void.

2.0 CONCLUSION

193
Maina, C.P (1997) Human Right in Tanzania, p. 428
194
[1981] TLR 55
 Therefore, the Kiboko disciplinary board should follow the procedures so as to dismiss the 6
employees and those procedures includes Conduct the preliminary investigation, the public
servant must be given notice of the charge against him and lastly one, public servant must be
afforded an opportunity to be heard as provided S. 23(2) OF The Public Service Act195

REFERENCE
STATUTES
The Constitution of United Republic of Tanzania, 1977 [CAP. 2 R.E 2002]
The Public Service Act, no.19 of 2004
The Public Service Regulation of 2003

BOOKS
Maina, C.P (1997) Human Right in Tanzania, pg. 428

THE LIST OF CASES

Mohona v University of Dar –es- Salaam [1981] TLR 55

195
No.19 of 2004