APPLICATION OF JUDICIAL

REVIEW IN DEFENDING HUMAN

RIGHTS
 INTRODUCTION

Judicial Review is the way through which the Court Controls the action of
Administrative Bodies.
The Court Review and Scrutinize the validity of the acts, decisions, instruments or
any transaction performed by administrative bodies.
Judicial Review is a specialized remedy in Public Law by which the High Court
exercises a supervisory jurisdiction over inferior courts, tribunals or other Public
Bodies.
 The Enabling Legal Provisions In Tanzania
The constitution is the fundamental law in respect of the inherent powers of the high court, it
provides for judicial review in the following terms:
Where a person alleges that any provision of this part of this chapter or any law involving
a basic right or duty has been, is being or is likely to be contravened in relation to him in
any part of the United Republic, he may, without prejudice to any other action or remedy
lawfully available to him in respect of the same matter, institute proceedings for relief in
the High Court.
Sub-article (3) of Article 30 of URT Constitution deals with basic rights and duties, that is,
the bill of rights. The primary correlative duties of human rights fall on States and public
authorities and not on individuals. The said sub article provides for judicial review of
administrative actions by allowed individual to institute proceedings for relief in the High
Court.
• There is also the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310
(RE 2002), which provides:
(1) The high court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of
the prerogative writs of mandamus, prohibition or certiorari.
(2) in any case where the high court would but for subsection (1) have had jurisdiction to order
the issue of a writ of mandamus requiring any act to be done or a writ of prohibition
prohibiting any proceedings or matter, or a writ of certiorari removing any proceedings or
matter into the high court for any purpose, the court may make an order requiring the act to be
done or prohibiting or removing the proceedings or matter, as the case may be.
(3) …..
(4) in any written law, references to any writ of mandamus, prohibition or certiorari shall be
construed as references to the corresponding order and references to the issue or award of
any such writ shall be construed as references to the making of the corresponding order.
Then section 18 stipulates that the Attorney-General has to appear as a party in any
civil matter seeking for such orders against the government which term has been
defined in sub-section (3):
For the purposes of this section the term “Government" includes a public officer and any
office in the service of the united republic established by or under any written law.
Appellate Jurisdiction Act, Cap 141
The act plays a significant role in the judicial review process in Tanzania as it provides for the
establishment of the court of appeal, which is the highest court in Tanzania with jurisdiction over
appeals from lower courts and tribunals.
An affected party if is dissatisfied with the decision of the high court in a judicial review
application; they can appeal to the court of appeal.
The law Reform (Fatal Accident and Miscellaneous Provisions) (Judicial Review Procedure
and Fees) Rules, 2014.
The law provides a framework for the procedure and fees related to Judicial Review. These
rules set out the time limits for seeking Judicial Review, the required documents and evidence,
and the fees that must be paid for the review process.
 Grounds And Procedures For Institution Of Judicial
Review
The three grounds for judicial review are outlined by lord Diplock in Council of Civil Service Unions
v Minister for the Civil Service [1985] AC 374, as illegality, irrationality and procedural
impropriety.
Each ground will be considered in further detail here:
Illegality
Illegality is a very broad ground for review and covers a wide range of possible abuses by public
authorities. It is worth reviewing lord Diplock's definition of illegality in Council of Civil Service
Unions, he stated [at 410]
"By 'illegality' as a ground for judicial review I mean that the decision-maker must understand
correctly the law that regulates his decision-making power and must give effect to it.
Under illegality one can challenge on the following grounds:
I. Excess of jurisdiction;
ii. Absence of power;
iii. Unlawful delegation;
iv. An error of law on the face of records; and
v. Improper motive/purpose.
All the aforementioned actions done by an administrative authority constitute illegality, hence
Judicial Review can be invoked to seek remedies.
Irrationality
Irrationality means unreasonableness. The administrative bodies do an action or
something irresponsibly.
Irrationality constitutes of failure to exercise discretion; the discretionary power must
be exercised reasonably.
Procedural impropriety
The correct procedure for making a decision must be observed for it to be lawful. Procedural
review examines the process by which a decision has been reached. Certain procedures are
contained within the statute conferring the power on the public authority, others are found within
common law doctrine of natural justice.
Procedural impropriety includes:
i. Statutory requirements
ii. Breach of rules of natural justice i.E. Right to be heard, rule against bias etc.
iii. The doctrine of legitimate expectation.
In Tanzania, the grounds of judicial review were stated by the court in the case of Sanai Murumbe and
another v Muhere Chacha [1990] TLR 54 where the court stated that:
“The high court is entitled to investigate the proceedings of a lower court or tribunal or public authority on
any of the following grounds, apparent on the record.
i. The subordinate court or tribunal or public authority has not taken into account matters which it
ought to have taken into account.
ii. Lack or excess of jurisdiction by the lower court.
iii. The conclusion arrived at is so unreasonable that no reasonable authority could ever come to it.
iv. Rules of natural justice have been violated.
v. The illegality of procedure or decision.
 Procedure For Instituting Judicial Review

Judicial review is not like appeal. One can only file an application for judicial review where there is
no room for other alternative remedies. It is an avenue that is not always open to any person.
The stages for application of judicial review include;
a. Application for leave to institute a case;
b. Substantive application; and
c. Hearing of the case.
Practically, before the substantive application of judicial review is lodged, an applicant must first
seek leave to file the same. This leave is sought through a chamber summons supported by an
affidavit sworn by an applicant or his advocate.
An application for leave shall be made ex-parte to a judge in chambers, this provided under rule
5(2) of the rules. An application for leave shall be within six month after the date of the
proceedings, acts or omission to which the application for leave relates.
Where a leave to apply for judicial review has been granted, the application shall be made by way
of chamber summons supported by an affidavit and the statement in respect of which leave was
granted.

Where leave for application for an order of mandamus, prohibition or certiorari is sought in civil
matter against the government, the court shall order the attorney general be summoned to appear
as party those proceedings, provided under section 18(1) of the Law Reform (Fatal Accidents and
Miscellaneous Provisions) Act, Cap 310 R.E. 2022.
 Remedies for judicial review

The high court of Tanzania may grant various remedies in judicial review
proceedings, including declaring the decision or action in question to be illegal or
unconstitutional, quashing the decision or action, or ordering the public body to take
a particular action. The high court may also award damages or costs to the
applicant.

.
 Case law on Judicial Review and how the applications of Judicial
Review defending Human Rights

Festo Barege and 794 others v Dar es Salaam City Council, Misc. Civil Cause No. 90 of 1991, High
Court of Tanzania at Dar es Salaam (unreported).

The applicants applied for orders of certiorari to quash the decision of the city council of dumping
waste; prohibition, to stop the city council from continuing that nuisance; and mandamus, to compel
the respondent to discharge its functions properly by establishing and using an appropriate site.
The application was granted by the high court. A number of findings were made: one, the city
council’s action was ultra vires the local government (urban authorities act, 1982. Two, the action
was contrary to the city’s master plan. Three, it was not a statutory duty of the respondent to
create nuisance but to stop it and avoid to endanger the residents’ health. Four, article 14 of the
constitution, which guarantees the right to life and its protection by the society was breached.
Edward Mlaki lLston Matemba v The Region Police Commander, Misc. Civil application no. 38 of 1979
(unreported).
There was an allegation that the applicant’s two vehicles were involved in transporting smuggled
goods. The Regional Police Commander of Kilimanjaro Region, pursuant to the instructions of the
secretary to the regional security committee, arrested and detained the vehicles. The applicant was
later summoned to appear before the region security committee where he denied the allegations. He
was told that he would be informed of the outcome but that was not done. The vehicles remained in
police custody though no criminal charges were preferred against him.
“The high court held that in the absence of any pending criminal matter the respondents had no
power to detain the applicant’s vehicles, and an order of mandamus was issued to release the
vehicles.”
In upshot, the institution of judicial review against the administrative bodies ensures that the state and
their public authorities by their actions do not dispose individuals of their human rights for whatever
reasons.
 CONTEMPORARY ISSUES SURROUNDING THE BASIC
RIGHTS AND DUTIES ENFORCEMENT ACT
Tanzania being a member of united nations and signatory to many UN and international instruments
has several obligations to protect, respect and fulfill human rights at national level. These obligations
and duties to states are well provided by the constitution of united republic of Tanzania,
international human rights law and various human rights treaties signed by Tanzania.
As per the dictates of article 30(4) of the constitution of the united republic of Tanzania and in
creating an enforcement mechanism of the bill of rights in Tanzania, in 1994 Tanzania enacted the
basic rights and duties enforcement act no.3 of 1994 (BRADEA) which came into force on the 17th
January 1995.
BRADEA laid down procedures to challenge before the high court of Tanzania violations of the rights
and duties contained under article 12 to 29 of the constitution.
BRADEA one can flagrantly see that contrary to the provisions of article 30(4)(a) and (c) of the
constitution the act made the enforcement of fundamental rights more complicated for example section 5,
the said section read:
“An application to the high court in pursuance of section 4 shall be made by petition to be filed in the
appropriate registry of the high court by originating summons”.
The said section clearly explained by the court of appeal in the case of the Registrar of Societies & 2
others versus Baraza la Wanawake Tanzania and 5 others civil appeal no 82 of 1999 unreported.
“Section 8 of the BRADEA provides for the high court’s jurisdiction in bill of rights cases. Sub-sections
8(1)(a) and (b) generally grant to the high court the jurisdiction to hear and determine any application
made on the basis of section 4.
Subsection 2 of the same puts a bar on the court not to hear any matter if it is satisfied that
adequate means of redress for the contravention alleged are or have been available to the person
concerned under any other law or that the application is merely frivolous or vexatious”
Tanzania Cigarette Company Ltd versus The fair Competition Commission & The Attorney
General, Miscellaneous Civil Cause No 31 of 2010 unreported.
The high court was given power to dismiss every application brought under this act, which it is
satisfied, is brought only on the grounds that the provisions of sections 12 to 29 of the constitution
are likely to be contravened by reason of proposals contained in any bill which, at the date of the
application, has not become a law.
Further the provisions of part VII of the law reform (Fatal Accidents and Miscellaneous
Provisions) act, which relate to the procedure for and the power of the high court to issue
prerogative orders, was excluded as a means of obtaining redress in respect of matters
covered.
 ENACTMENT OF THE BASIC RIGHTS AND DUTIES
(PRACTICE AND PROCEDURE RULES) 2014 GN 304 OF
2010

The enactment of the rules of procedure was made under section 15 of the basic rights and
duties enforcement act cap 2 R.E. 2022. The said section vested power on the chief justice to
make rule of procedure.
Rule 4 of the rules provides that “any petition filed in accordance with the provisions of the act
shall be by way of originating summons”. This rule cures position stated under section 4 of the
act; put a scheme on the days of happening of events in the conduct of the case.
Rule 7 (4) of the High Court Registry Rules, GN. 164 of 1971; these rules have been used
administratively by the court in the management of all cases brought under BRADEA cases which
have been filed in registries of the high court other than Dar es Salaam, the provision states
that:
“The court may at any time on application or of its own motion transfer any proceedings
from one registry to another and any proceedings so transferred, and all documents shall
be filed accordingly”.
The case of Tito Magoti & another versus Attorney General, Misc Civil Cause no 9 6 of 2020, the
panel of three judges opted to strike out a petition.
 AMENDMENT OF THE BASIC RIGHTS AND DUTIES
ENFORCEMENT ACT
• The principal act is amended in section 4, by
a) adding immediately after subsection (1) as designated the following:
“(2) without prejudice to the provisions of the commission for human right and good governance
act, relating to powers of the commission to institute proceedings, an application under
subsection (1) shall not be admitted by the high court unless it is accompanied by an affidavit
stating the extent to which the contravention of the provisions of articles 12 to 29 of the
constitution has affected such person personally.
(3) for avoidance of doubt, a person exercising the right provided for under article 26(2) of
the constitution shall abide with the provisions of article 30(3) of the constitution.
(4) notwithstanding any provisions to the contrary, where redress is sought against the
President, Vice-President, Prime Minister, the Speaker, Deputy Speaker or Chief Justice for
any act or omission done in the performance of their duties, a petition shall only be brought
against the attorney general.
(5) a petitioner shall, prior to seeking redress under this act, exhaust all available remedies
under any other written laws.”
The law aims to make absolute the requirement that demands demonstration by the complainant
that he has been affected personally by an infringement of his fundamental rights (basic
human rights) as well as breach of his statutory right.
The law further introduced a new subsection, which requires all suit or matters against the heads
of organs of the state to be instituted against the attorney general. These new amendments
intend to enhance the provisions relating to immunity of heads of organs of states.
Another amendment introduced is the amendment of section 4 by adding a section reading as
follows, “a petitioner shall, prior to the seeking redress under this act, exhaust any available
remedy under any written law”
ASANTENI KWA KUNISIKILIZA