Austin has defined administrative Law.

As the law, which determines the ends and modes to

which the sovereign power shall be exercised. In his view, the sovereign power shall be
exercised either directly by the monarch or directly by the subordinate political superiors to
whom portions of those are delegated or committed in trust. Each branch of the government has
separate powers and each branch is not allowed to exercise the powers of the other, the
legislative exercises congressional power, the executive branch exercises executive power and
the judicial branch exercises judicial review.

The Judiciary is the third organ of the government. It has the responsibility to apply the laws to
specific cases and settle all disputes. The real ‘meaning of law’ is what the judges decide during
the course of giving their judgments’ in various cases. From the citizen’s point of view, Judiciary
is the most important organ of the government because it acts as their protector against the
possible excesses of legislative and executive organs. Role of Judiciary as the guardian-protector
of the constitution and the fundamental rights of the people makes it more respectable than other
two organs.

Mandate of Judiciary

The mandate of Judiciary to perform its functions is obtained from the Constitution of
the United Republic of Tanzania vide article 107 and its primary function is to
dispense justice with equity and compassion according to laws of Tanzania. Under
Article 107[1] of the constitution of the united republic of Tanzania state that as the
authority and responsibility to administrative justice is vested in the judiciary of the
united Republic of Tanzania no other organ of the state including parliament shall
have final authority on matters concerning to the administration of justice.

Article 107[B] of constitution of the united of republic of Tanzania. It provides that in

discharging the responsibility of administering justice, the court shall be free to
adjudicate cases by the guidance of the provision for constitution and the law of the
country.
With above mandate the roles and functions of the Judiciary include:

 Interpreting diverse Laws and execution administrative decisions.

One of the major functions of the judiciary is to interpret and apply laws to specific cases. In the
course of deciding the disputes that come before it, the judges interpret and apply laws. Every
law needs a proper interpretation for getting applied to every specific case. This function is
performed by the judges. The law means what the judges interpret it to mean.

The judiciary is not a department of the government. It is independent of both the legislature
and the executive. It is a separate and independent organ with its own organization and officials.
It has the power to decide the nature of judicial organization in the state. It frames and enforces
its own rules. These govern the recruitment and working of the magistrates and other persons
working in the courts. It makes and enforces rules for the orderly and efficient conduct of
judicial administration.

 Hearing and deciding cases filed before the courts of law.

The judiciary has the power not only to deliver judgments’ and decide disputes, but also to get
these enforced. It can direct the executive to carry out its decisions. It can summon any person
and directly know the truth from him. In case any person is held:

(i) Guilty of not following any decision of the court, or

(ii) Of acting against the direction of the court, or
(iii) Misleading the court, or
(iv) Of not appearing before the court in a case being heard by it, the Court has the power
to punish the person for the contempt of court.

 To Give Justice to the people:

The first and foremost function of the judiciary is to give justice to the people, whenever they
may approach it. It awards punishment to those who after trial are found guilty of violating the
laws of the state or the rights of the people. The aggrieved citizens can go to the courts for
seeking redress and compensation. They can do so either when they fear any harm to their rights
or after they have suffered any loss. The judiciary fixes the quantity and quality of punishment to
be given to the criminals. It decides all cases involving grant of compensations to the citizens.

 Guardian of the Constitution

The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the
land and it is the responsibility of the judiciary to interpret and protect it. For this purpose the
judiciary can conduct judicial review over any law for determining as to whether or not it is in
accordance with the letter and spirit of the constitution. In case any law is found ultra vires
(unconstitutional), it is rejected by the judiciary and it becomes invalid for future. This power of
the court is called the power of judicial review.

 Protection of Rights

The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has
the right to seek the protection of the judiciary in case his rights are violated or threatened to be
violated by the government or by private organizations or fellow citizens. In all such cases, it
becomes the responsibility of the judiciary to protect his rights of the people.

 Equity Legislation

Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the
land, the judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom
for deciding the cases. Such decisions always involve law-making. It is usually termed as equity
legislation.

 Educating members of the public of their rights obligations under the laws of the
Tanzania.
  Facilitating maintenances of peace and order through good governance and the rule of
law.

Importance of Independent Judiciary:

The following are the ways under which the doctrine of separation of power and
independence of the judicial are important in ensuring the prevalence of the rule of
law; starting with the separation as provided under article 4 1 which provides all state
authority in the united republic shall be exercised and controlled by two organs vested
with executive over the conduct of public affairs. This means the doctrine of
separation of power is impotent ensure the prevalence of rule of law due to the that in
order to avoid the oppressive government, three types of the government function
which are executive, judicial and legislative should be kept separate and each of these
organs should be made separate and no individual should be involved in more than
one branch. So this shows how separation of power is important to the prevalence of
rule of law because each organ of the state should perform its own function such as
legislature its function is to enact law, executive its function to enforce law and its
function is to implement law and no organ should interfere another organ .

In the case of Mwalimu Paul John Mhozya v. Attorney General 2

Facts and Issues:

This was an application for an interlocutory injunction to restrain H.E. President Hassan Mwinyi
from discharging presidential functions pending the determination of Civil Case No. 206 of
1993. The suit sought a declaration that by allowing Zanzibar to join an organization known as
Islamic Conference Organization, the President was guilty of allowing or enabling that violation
to take place and was therefore personally answerable for the violation. It also claimed that his
continued exercise of presidential powers was unconstitutional as well as a potential danger to
the well-being of the United Republic and its citizens. The applicant appeared in person to argue
1
The constitution of the united republic of Tanzania of 1977
2
(No.1), High Court, April 25, 1993, Civil Case No. 206 of 1993
the application. At the hearing, learned Counsel for the State opposed the application. Firstly, he
argued that the application was incompetent as the affidavit sworn in its support was fatally
defective for failure to comply with the provisions of Order 19 Rule 3(1) of the Civil Procedure
Code. He further argued that it contravened S. 46A of the Constitution for failure to comply with
the special procedure laid down by Parliament for moving the Court. Lastly, he argued that S.
11(2) of the Government Proceedings Act, 1967, and those of Order 37 Rule 2 of the Civil
Procedure Code as amended by the Government Proceedings (Procedure) Rules, 1968 prohibited
the granting of the kind of injunction sought in this application.

Held:

1. Substance rather than form should be the court's primary concern. If legal steps can be taken to
cure any defects in a pleading or an affidavit, without substantially prejudicing the opposite
party, leave should be granted to take the remedial steps, if court has jurisdiction in the matter.

2. The principle that one branch of government should not encroach on the functions of another
is a very important principle. Removal or suspension from office of the President of the United
Republic is the legislature's exclusive prerogative in accordance with the procedure for removing
or suspending a President under S.46Aof the Constitution.

3. The right granted under S. 26(2) of Constitution to institute proceedings for the protection of
the Constitution and legality cannot be used to grant a remedy available only through
Parliamentary procedure.

4. No injunction can lie against the President under S.42 of the Constitution as well as common
law.

Application dismissed.

Also independence of judiciary is important in ensuring the prevalence of rule of law;

this means that the judiciary must be free from dependence, subjection or control it
must be able to adjudicate dispute without fear or favor; so judiciary is necessary in
holding fair application of law no preference treatment when summoned by court of
law.

This doctrine of independence of judiciary is important in ensuring the prevalence of

rule of law due to the fact that, judiciary should be independent in exercising its
power according to the rules and powers which has been vested to it; it should be free
and practice its power without fear and any interference from other organs of the
state. There is where we can say that the independence of judiciary is important to
insure the prevalence of the rule of law.

This has been reflected in the case of R V. Idd Mtengule3 which states that the
judiciary is supported to be an independent institution in the sense that those who are
entrusted by the constitution to decide the rights and liabilities of the people must be
free from all kinds of pressures regardless of the corners from which those pressure
come. The judiciary must be free from political, executive or emotional pressures if
it is going to work with the smoothness integrity expected of it under the supreme law
of the land the constitution. It must not be subjected to intimidation of any kind.7

Therefore in order to have separation of power and independence of judiciary, there

must be rule of law; under separation of power there are three organs which are
legislature, executive and judiciary and each organ have its rules which guide it when
performing its function. And under independence of judiciary there must be the rules
of law which help this organ in performing its function to ensure the administration of
justice. So the separation of power and independence of judiciary are important to
ensure the prevalence of rule of law.

In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The
common man depends upon judiciary for getting justice. Without a security of rights and
freedom guaranteed by the judiciary, they cannot really hope to carry out their jobs and enjoy
their living. They are more dependent upon judiciary than the legislature and the executive.

3
Criminal revision no. 1 of 1979
Without judicial protection, their lives can become miserable. From citizens point of view
Judiciary is the most important organ of the government.

Garner highlights this view when he observes, “A society without legislature is conceivable, and
indeed, legislative organs did not make their appearance in the state until modern times, but a
civilized state without a judicial organ and machinery is hardly conceivable.”

Judiciary enjoys a big importance in the eyes of the people because it acts as:

(1) The dispenser of Justice.

(2) Protector of the rights of the people.

(3) Guardian protector of the Constitution of the State.

(4) Arbiter of center-state disputes.

(5) Safeguard against Legislative and executive excesses.

(6) Check against arbitrary exercise of powers by the power-holders.

(7) Guardian of Rule of Law and Justice.

An independent judiciary is always considered to be the most essential part of every democratic
government worth its name. A government without judiciary is almost inconceivable. A
government without independent judiciary is always held to be an authoritarian government.

Therefore, in Austin’s statement that law is the wish of the upper class for the lower class to
follow is partially true since some leaders who are in charge exercise the powers on individuals
thus infringe their rights. The law of the state is equal to all citizens 4 of the community and each
citizen regardless of the title, class, leadership has to adhere to the rules and principles which are
laid down in the constitution. The law is the wish of the people in which the present through
stakeholder’s participation in which public hearings and focus groups approach are being used
by the government for people to express the opinions and views which contribute in the making
of the law. Also the statement by Prof. Ibrahim Juma that “The courts should not be blamed for
congestion of prisoners in jail but the inspectors who are in charge of the cases they take a long
4
Article 13 of the constitution of the united republic of Tanzania
time to finish their investigations and their reasons for doing so are not satisfactory thus law
breakers should not be detained before the investigations” hence the investigators should
complete their investigations