Admnistrative Law Notes-Aggrey Wakili Msomi

MAGANGA M.
ADMINISTRATIVE LAW
2019
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TABLE OF CONTENT
TOPIC ONE..............................................................................................3
1.0 Meaning of administrative law....................................................................3
1.1 Montesque theory in Administrative law.........................................................4
1.2 Nature and scope of administrative law...........................................................5
1.2.1 Nature............................................................................................................ 5
1.2.2 Scope.............................................................................................................. 6
1.4 Function of administrative law....................................................................7
1.5 Sources of Administrative Law....................................................................8
1.6 Constitutional law and Administrative law.......................................9
1.6.1 Similarities between administrative law & constitutional law.......9
1.6.2 Different between administrative law & constitutional law..........10
1.7 Growth of Administrative law...................................................................11
1.7.1 Reasons of Growth of Administrative law............................................................12
TOPIC TWO............................................................................................14
ADMINISTRATIVE PRINCIPLES.................................................................14
TOPIC THREE.........................................................................................19
3.0 PILLARS/ARMS BRANCHES OF GOVERNMENT.........................................19
3.1 EXECUTIVE/ GOVERNMENT................................................................19
3.1.1 Power/ scope of executive.................................................................................. 19
3.1.2 System of executive;........................................................................................ 19
3.1.3 Types of executive in Tanzania...........................................................................20
3.1.4 Structure of executive in Tanzania;.....................................................................20
3.1.5 Functions of executive...................................................................................... 22
3.2 LEGISLATURE/ PARLIAMENT...............................................................23
3.2.1 Structure/composition of parliament;..................................................................23
3.2.2 Composition of the national assembly in Tanzania.................................................23
3.2.3 Powers/scope of legislature/ parliament...............................................................23
3.2.4 Functions of legislature/ parliament....................................................................24
3.3 JUDICIARY......................................................................................25
3.3.1 Structure of judiciary in Tanzania Mainland........................................................25
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3.3.2 Power/ scope of judiciary.................................................................................. 25

3.3.3 Functions of judiciary...................................................................................... 25
TOPIC FOUR...........................................................................................26
4.0 BASIC/ FUNDAMENTAL CONSTITUTIONAL PRINCIPLES..............................26
4.1 Rule of law........................................................................................26
4.1.1 Rule of Law in Tanzania...................................................................................29
4.2 Separation of power..............................................................................31
4.2.1 Checks and Balances....................................................................................... 32
TOPIC FIVE............................................................................................34
5.0 CLASSIFICATION OF ADMINISTRATIVE ACTIONS..............................34
5.1 The Rationale of Classification.............................................................................34
5.2 General Distinction of Legislative, Executive and Judicial Functions...........................35
5.3 The Distinction of Legislative and Administrative Functions......................................36
5.4 The Distinction between Quasi – Judicial and Judicial Functions................................39
5.5 The Distinction between Administrative and Quasi – Judicial Functions......................40
TOPIC SIX..............................................................................................43
DELEGATED LEGISLATION......................................................................43
6.0 Introduction..................................................................................................... 43
6.1 Legal basis of 'delegated legislations' in Tanzania....................................................43
6.2 Who makes delegated legislation?........................................................................44
6.3 Factors for the growth of delegated legislation in Tanzania........................................44
6.4 Types of 'delegated legislation..............................................................................45
6.5 Status/position of delegated legislation' in relation to principal legislation.....................46
6.6 Functions which can be delegated (permissible delegation)........................................46
6.7 Functions which cannot be delegated (impermissible delegation)................................48
6.8 Control of delegated legislation............................................................................ 49
6.9 Criticisms of delegated legislation.........................................................................60
6.10 Justification of delegated legislation.....................................................................61
6.11 Main legislation governing delegated legislation.....................................................61
6.12 Prerequisites for delegated legislation..................................................................62
TOPIC SEVEN..........................................................................................64
7.0 ADMINISTRATIVE TRIBUNALS..............................................................64
7.1 Reasons for growth of administrative tribunals.......................................................64
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7.2 Types and examples of administrative tribunals in Tanzania......................................64

7.3 Legal basis of administrative tribunals in Tanzania..................................................65
7.4 Administrative tribunal’s similarities and distinction from ordinary court....................65
7.5 Administrative tribunal distinguished from executive authority..................................66
7.6 Characteristics of tribunals.................................................................................66
7.7 Advantages administrative tribunals.....................................................................67
7.8 Disadvantages of administrative tribunals..............................................................67
TOPIC EIGHT..........................................................................................69
8.0 PRINCIPLES OF NATURAL JUSTICE........................................................69
8.1 The concept of Natural Justice in Tanzania.....................................................75
8.2 Exclusion of Natural Justice.....................................................................78
TOPIC NINE............................................................................................81
JUDICIAL REVIEW................................................................................81
9.0 Introduction..................................................................................................... 81
9.1 Object of Judicial Review.................................................................................... 82
9.2 Rationale of Judicial Review................................................................................82
9.3 Scope of Judicial Review..................................................................................... 83
9.4 Limitations on judicial review.............................................................................. 83
9.5 Functions of judicial review................................................................................. 84
9.6 Historical Background of Judicial Review in Tanzania........................................85
9.7.1 Sources of Supervisory Jurisdiction (Judicial Review) in Tanzania............................86
9.8 Bodies subjected to Judicial Review.............................................................87
9.9 Institution of Judicial Review....................................................................87
9.10 The grounds for judicial review................................................................88
9.11 PREROGATIVE REMEDIES..................................................................90
9.8 OMBUDSMAN AND THE COMMISSION FOR HUMAN RIGHT AND GOOD
GOVERNANCE......................................................................................99
9.8.1 Composition of the Commission S.7 of the Act....................................................100
9.8.2 Functions of the Commission, S.6 of the Act.......................................................100
9.8.3 Status, Power and Competence of the Commission..............................................102
TOPIC TEN...........................................................................................104
10.0 DISCRETIONARY POWER.................................................................104
10.1 Discretionary powers and Mandatory powers distinguished...................................105
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10.2 Wide discretionary power................................................................................105

10.3 Mechanism for controlling wide discretionary power............................................106
10.3.2 Area were the abuse of power can be seen.........................................................108
10.3.3 Importance of judicial review in control discretionary power...............................111
10.4 OTHER CONTROLLING MECHANISM..................................................112
TOPIC ELEVEN......................................................................................115
11.1 THE PUBLIC SERVICE.....................................................................115
11.1 Organs of control of the public service...............................................................115
11.2 Functions of the chief secretary...............................................................117
11.3 The public service commission................................................................118
11.4 Employment contracts in public service.....................................................119
11.5 Termination of appointments in public service..............................................121
11.6 Rights which a public servant is entitled to have............................................124
11.7 Duties which a public servant have...........................................................124
TOPIC TWELVE.....................................................................................126
LIABILITY OF THE GOVERNMENT...........................................................126
12.0 Introduction................................................................................................. 126
12.2 Whether State is bound by Law........................................................................126
12.3 The Framework of Administrative Authorities in Tanzania....................................127
12.4 Administration of Public Service.......................................................................132
12.4 Practice and Procedure in suing the Government.................................................133
12.5 Classification of Governmental liabilities............................................................133
12.6 Procedure in suing the Government...................................................................138
12.7 Procedure for Enforcing Basic Rights................................................................141
12.8 Enforcement of Basic Rights in Tanzania............................................................142
12.9 Ouster Clauses (Exclusion Clauses)...................................................................144
12.9.1 Types of Ouster Clauses................................................................................144
REFFERENCES......................................................................................146
TOPIC ONE
1.0 Meaning of administrative law
Is the branch of public law which deals with the structure, powers and functions of the organs of
administration, the limits of their powers, the methods and procedures followed by them in
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exercising their powers and functions, the methods by which their powers are controlled
including the legal remedies available to a person against them when his rights are infringed by
their operation. Administrative law is divided into three parts:1
(i) The statutes endowing agencies with powers and establishing rules of substantive law
relating to those powers;
(ii) The body of agency-made law, consisting of administrative rules, regulations, reports,
opinions containing findings of fact, and orders; and
(iii) The legal principles governing the acts of public agents when those acts conflict
with private rights.
Administrative law deals with the field of legal control exercised by law-administering agencies
other than courts, and the field of control exercised by courts over such agencies. 2 Our
administrative law is not only codified but scattered. State acts through her public functionaries.
Administrative law constitutes check and balance. It protects citizen from the cruelty of public
functionaries. Every law, which lays down relationship between public and executives, is called
administrative law. Any law including the law relating to all constitutional laws, statutory, by-
laws, judicial proceedings, customs, and policies is called administrative law.
According to Prof Wade and Bradley3Administrative law is a branch of the public law which is
concerned with the composition, powers, duties, rights and liabilities of the various organs of
government which are encouraged in administration. Or more concisely, the law relating to
public administration
According to Sir Ivor Jennings4 defines Administrative Law as the law relating to
administration. It determines the Organizations, powers and duties of administrative Authorities.
1 Administrative Law and Procedure 1. C.J.S. Public Administrative Law and Procedure § 2.
2 Felix Frankfurter, The Task of Administrative Law, 75 U. Pa. L. Rev. 614, 615 (1927).
3 1985
4 1959
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Kenneth Culp defines administrative law as a law that concerns the powers and procedure of
administrative agencies including the law governing judicial review of administrative action.
Prof. Upendra Baxi defines Administrative law as pathology of powers. He lays special stress
on protection of the from the arbitrary exercise of public power. Accountability of the holders of
public power for the ruled is thus the focal point of his formulation. We may therefore define
Administrative Law as that branch of public law which deals with organization and power of
administrative and agencies and prescribed principles and rule which an official action is reached
and reviewed in relation to individual liberty and freedom.
1.1 Montesque theory in Administrative law

To understand the administrative law, theory propounded of Montesque is necessary to
understand. According to his theory following are the main points:
a) Three functions of the government.

b) Three organs of the government.
c) Separation among them.
d) Check and balance.
They must act in their own sphere or areas. This theory limitizes the powers of public
functionaries and protects public. It has seen different changes with the passage of time. This
theory also includes separation with two provisions, i.e., power should not invest in one hand and
there should be no interference to each other. Where more power is granted there maximum
applies “power corrupts and absolute power corrupts absolutely.”
All organs of the government perform their additional functions in addition to their original
functions. It minimizes arbitrary powers reasonably.
Where there is democracy in truer sense there is no power invested in one hand. There are three
organs of government, which perform three functions. They each also perform two additional
functions. Hierarchy is as under:
Executives perform judicial functions when they hold enquiry and perform legislative
functions when they make rules and regulations.
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Judiciary performs executive functions when make appointments and performs legislative
functions when make rules and regulations.
Legislature performs executive functions when make appointments and performs judicial
functions when hold enquiry against judges or the person who commits high treason.
1.2 Nature and scope of administrative law
1.2.1 Nature
Administrative law is not a law like property law or contract law. It is a law in the sense of the
term which includes statute law, administrative directions, precedents, customs, administrative
directions, etc. It also includes the study of something which may not be termed in the true sense
of the term such as administrative circulars, policy statements, memoranda and resolutions, etc.
Administrative law is a branch of public law in contradistinction to private law which deals with
the relationship of individual inter se. It primarily deals with the relationship of individuals with
organized power. It deals with organization and power of administrative and agencies such as
corporations, firms, autonomous agencies, individuals, and civil society institutions, both
national and global, and the like.
Administrative law includes the study of the existing principles and also of the development of
certain new principles which Administrative and agencies must follow while exercising their
powers in relation to individuals i.e. principles of natural justice, reasonableness and fairness. It
is the body of law which governs the activities of administrative agencies of Government.
Government agency action can include adjudication, or the enforcement of specific regulatory
agenda.
Administrative law includes the study of the existing principles and also of the development of
certain new principles which Administrative and agencies must follow while exercising their
powers in relation to individuals i.e. principles of natural justice, reasonableness and fairness.
Administrative law primarily concerns with the official action, which may be: 1. or action. 2. or
action. 3. or administrative action, or 4. Ministerial action or pure administrative action.
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Administrative law puts emphasis on procedure which the official action is reached. The official
action is reached should be trustworthy.
Administrative law also includes within its study the control mechanism which the
administrative agencies are kept within bounds and made effective in the service of individuals.
This control mechanism is technically called the review process. An administration action may
be controlled.
a) Courts exercising writ jurisdiction habeas corpus, mandamus, certiorari, prohibition, quo
warrant.
b) Courts exercising ordinary judicial power suits, injunctions, and declaratory actions.
c) Statutory authority’s ombudsman, human rights commission, other investigating
authorities.
d) Higher Administrative authorities
e) Public opinion and Mass media
f) Civil society and interest representatives help in controlling the arbitrary exercise of
public power, both at the stages.
g) Easy access to Justice includes procedural facility which is cheap, speedy and less
formalistic, legal aid, and availability of advocates for public interest litigation,
intellectual capacity of the part and active participation of the judges.
1.2.2 Scope
With this respect administrative law covers such aspects like political, judicial, parliamentary
control of administrative organs. However it does not go to the extent of controlling policy
making by ministers or the head of state. All public authorities vested with administrative powers
fall under the ambit of the control of administrative law. The exercise of their powers may in one
way or the other affect an individual person. Therefore administrative law is there to impose a
system of checks and balances.
1.4 Function of administrative law

Administrative law is the branch of law which deals with the individual versus governmental or
administrative power. Therefore, the primary purpose of administrative law is to keep the power
of government within its legal bounds, so as to protect the citizen against its abuse.
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First, it enables the tasks of the government and the other authorities to be performed accordance
with the law, thus administrative agencies are created by the law and equipped with powers to
carry out public policies on behalf of the state and in the general interest for example in the case
of John Mwombeki Byombalirwa v. The Regional Commissioner And Regional Police
Commander, Bukoba5. Mwalusanya J, said “public officers must have a public duty to perform
imposed on them by statute or any other law”.
Second, it governs the relationship between public agencies and individuals or private bodies
over whose affairs the agency is entrusted with power 6. For example the Delegated powers, thus
the public agencies or other bodies are given legal powers to perform their tasks and the
legislator thereby imposes a measure of control since an agency is not authorized to go outside
its powers, in which in granting those powers to them reflects the system of social, economic and
political values that affects the individuals in either for their benefit or detriment.
Third, Administrative law has imperative and harmonization function, thus in imperative it is a
command, it compel the administrative organs to perform such powers conferred to them from
various sources for instance Mandamus compel the authority to perform a public duty. Also in
harmonization, it balance and harmonize conflicting interest between interest of the community
and individuals as observed by Prof. Wade that administrative law applies solution to the
problem of reconciling freedom and justice for the private citizen.
Fourth, to enhance accountability, transparency in the process of governance, this can be seen
through one of among the constitution principle of ministerial accountability, which requires a
cabinet as whole or individual minister to be accountable for any misconduct, this is provided
under article 53 (1)7, and one way of being accountable is by the way of resignation For example
Edward Lowassa who was a prime minister resigned on 7 February 2008 following a
parliamentary select committee report on an emergency power generation contract between
5 [1986] TLR 73 (HC)
6 Ibid.
7 Constitution of united republic of Tanzania of 1977 as amended from time to time
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TANESCO8 and United State company Richmond, in which the contract was considered to be
done fraudulently. In summary the purpose of administrative law are
a. To check abuse of administrative

b. To ensure to citizens an impartial determination of the disputes
c. To protect them from unauthorized encroachment on their rights and interests.
d. To make those who exercise public power accountable to the people.
e. To keep governmental powers within the limits of law and to protect private rights and
individual interests.
1.5 Sources of Administrative Law

i) The constitution
Various administrative organs derive their powers and functions from the Constitution. Such
organs include the President, Ministers, local government authorities etc. However the very same
Constitution2 provides for the rights of every individual and such constitutional rights have to be
respect when exercising administrative functions. In that respect the Constitution becomes a
major source of administrative law.
ii) The statutes
Most of administrative organs are statutory formed. They derive their powers and functions from
various statutory instruments. Some statutes confer legislative powers, quasi-judicial powers,
powers to maintain law, order and good governance etc. All these powers have to be exercised
lawfully within such limits set by the particular Act of the parliament. In that sense statutes
become one of the principal sources of administrative law.
iii) Case laws
Decisions by the supreme courts of the land in administrative disputes form one of the major
bases of administrative law. Courts have always intervened in such cases where administrative
organs have acted unlawfully to the extent of injuring or affecting individual rights. Using their
inherent prerogative powers, courts have
8 Tanzania Electric Supply Company (Limited).
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iv) Received laws
This includes the common law principles, doctrines of equity and such statutes of general
application. All these have been, and still are, useful in such matters involving administrative
disputes
1.6 Constitutional law and Administrative law

It has been a tendency among different scholars to treat these two branches of public law as
synonymous. In actual fact the two kinds of public law are both concerned with functions of the
Government and they share the same roots or sources. However the two laws have some slight
differences which make them to be treated as different types of public laws. For instance
according to Maitland, while constitutional law deals with structure and broader rules which
regulate the functions, the details of the functions are left to administrative law. And according to
Hood Phillips;
 Constitutional law is concerned with the organization and
 Functions of Government at rest whilst administrative law is
 Concerned with that organization and those functions in motion.
Other scholars say that the distinction between constitutional law and administrative law is one
of degree, convenience and custom rather than that of logic and principle. In other words they
argue that there is no fundamental distinction between the two laws.
1.6.1 Similarities between administrative law & constitutional law

Constitutional law and administrative law Constitutional law and administrative law are parts of
the public law.
Constitutional law is mainly concerned with the structure of the primary organs of the
government whereas administrative law is concerned with the work of official agencies in
providing services and in regulating the activities of citizens.
1.6.2 Different between administrative law & constitutional law
Constitutional law Administrative Law
1. Creation of organs 1. Power to organs
Constitution just creates organs This law gives powers to organs.

with the power of delegation.
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Constitutional law Administrative Law
2. Dead law 2. Alive law.
It is dead law, as it does not It makes institutions active and

operate any institution. thus gives them life.
3. Law of rest 3. Law of motion
This law creates institution at once It gives movement to the

and then gets sleep. institutions once created by
constitution and keeps them
operative forever.
4. Macro level 4. Micro level
It deals all things at bigger level. It deals all things at lower level.
5. Limited scope 5. Widen scope
It is limited in scope. It is widen in scope.
6. Skeleton 6. Entire body
It is mere skeleton and remains It is apart from the skeleton and

incomplete. makes it complete. It is fleshy part
of the body.
7. Supreme 7. Ordinary
Constitution is supreme law of the It is ordinary law in nature and

land and can cancel other inferior cannot repeal the provisions of the
law but no law can repeal it. constitution.
8. Origin 8. S
Its origin is parliament Only administrative authority

creates it.
9. Subject 9. S
It deals with only three organs. It deals with only administrative

matters.
10. Power to delegate 10. S
Can delegate powers. Cannot relegate.
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1.7 Growth of Administrative law

The most notable and important development of the modern state is the rapid growth of
Administrative law. The growth which took place in the 20th century can be considered as a
radical change. The role and the functions of the state have undergone an extreme alteration.
There is a multiplication of government functions. The state which is functioning today act as a
progressive democratic state it as to make sure whether the essential needs of the citizens are full
filled by the state.
It as to ensure Social peace and security, control the over production, manufactures and
distributes essential commodities, ensures equal pay for equal work it should work on the
improvement of slums, health and education of the citizens the modern state takes care of its
citizen till their existence inside the state. Such kind of development have increased the reach
and scope of Administrative law. It is the law which governs the duties, powers and also the
manner in which those powers are executed. Administrative law limits the authorities from using
their powers in an abusive manner.
Determining the Reasons for the Growth of Administrative law which helps in Analyzing
whether such growth has witnessed an efficient functioning of the Administrative authorities.
Administrative law developed principles which assist to ensure that the Administrative or public
authorities works in a legal, reasonable and efficient manner. This article is mainly concentrated
on knowing the reasons for the growth of Administrative law with a brief introduction to the
subject as well as the chronicle of administrative law and it’s functioning, through which a better
understanding of Administrative can be gained and also the need for administrative law can be
known.
1.7.1 Reasons of Growth of Administrative law

a. There is a radical change in the philosophy of the role played by the state.
The negative policy of maintaining law and order and social welfare is changing. 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.
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b. The legislative process was also inadequate.

It had no time and technique to deal with all the details. It was impossible for it to lay down
detailed rules and procedures, and even when detailed provisions were laid down by the
legislature, they have found to be defective and inadequate. Therefore, it was necessary to
delegate some powers to the administrative authorities
c. There is scope for experiments in administrative process.

Here unlike, in legislation, it is not necessary to continue a rule until commencement of the next
session of the legislature. Here a rule can be made, tired for some time and if it is defective, can
be altered or modified within a short period. Thus, legislation is rigid in character, while the
administrative process is flexible.
d. The administrative authorities can avoid technicalities.

Administrative law represents functional rather than a theoretical and legislative approach. The
traditional judiciary is conservative, rigid and technical. It is impossible for courts to decide
cases without formality and technicality. Administrative tribunals are not bound by rules of
evidence and procedure and they can take a practical view of the matter to decide complex
problems.
e. Administrative authorities can take preventive measures.

Unlike regular courts of law, they do not have to wait for parties to come before them with
disputes. In many cases, these preventive actions may prove to be more effective and useful than
punishing a person after he has committed a breach of law. As freeman says, ‘Inspection and
grading of meat answers the consumer’s need more adequately than does a right to sue the seller
after the consumer injured”.
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TOPIC TWO
ADMINISTRATIVE PRINCIPLES
i. Ministerial Responsibility
This doctrine explains how ministers are collectively and individually held responsible for the
actions done on their official capacities. In the parliament, all ministers represent the government
and are responsible to answer all such questions put against them by the members of the
parliament. An argument raised by one minister in the parliament has to be supported by other
ministers. Ministers work as one team in defending actions taken by the government and where
such actions are challenged in the parliament. Ministerial responsibility is found in two levels;
a. Collective ministerial responsibility
This refers to responsibility of all the ministers in defending any such action which has been
taken by the government and which reflects the image of the government at large. All ministers
are responsible in implementing any such resolution passed by the cabinet. If there is no mutual
agreement on any matter raised in the cabinet, then ministers will have to vote and the majority
decision shall form the stand of the government on the particular issue and all those who were
not in agreement with the issue are supposed to take the stand of majority otherwise one will
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have to resign from the government. An example of the minister who went against the consensus
of the cabinet and resigned was Augustino Lyatonga Mrema in 1995. As per Article 54 of the
Constitution of United Republic of Tanzania, the chairman of the Cabinet is the President and
members of the Cabinet include the vice-president, prime minister, president of Zanzibar and all
ministers. Article 53(2) of the Constitution establishes the doctrine of ministerial responsibility
particularly on collective ministerial responsibility.
b. Individual ministerial responsibility
A minister is individually responsible in respect of such actions which arose under his ministry.
If there is any act taken by officials under a certain ministry, then the minister concerned shall be
held responsible by the parliament for such act. Where the minister fails to persuade the
parliament on the actions taken by his ministry in preventing any particular loss to happen, then
such ministry will be forced to resign from his office. Example of ministers who resigned from
their posts in response of the pressure from the parliament are Prof. Simon Mbilinyi, Iddi Simba,
Kigoma Ally Malima etc.
Shortcomings of the doctrine of ministerial responsibility
 The doctrine presumes that the minister knows each and everything within his ministry
while in actual sense he is not.
 The president appoints ministers among the members of the parliament and therefore
weakens the size of members of the National Assembly who remain to question the
government.
 Multiparty system may be fruitless in as far as making the government accountable to the
parliament where most of members of the National Assemble are from the ruling party
and therefore will tend to defend their government against those of opposition parties.
 The fact that the minister has failed to perform his duties effectively in one ministry does
not bar the President from appointing him to head another ministry.
ii. Separation of powers

According to the formulation by Montesquieu the doctrine simply means there are to be three
different powers of the State, which are the executive, the Legislature and the judiciary, their
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personnel are to be different and their functions should be different that, under the doctrine the
legislature is supposed to make laws, the judiciary to interpret and administer them and the
executive to enforce them
iii. Rule of law

The principle of rule of Law is a historical phenomenon. The principle stands against rule by
personal whims and caprices of the monarchies. Under the monarch regime, it is rule by man that
prevails as opposed to rule of law. Traditionally, rule of law, as propounded by Dicey. Means
Supremacy of the law and equality before the law. However, Constitutional scholars raised many
criticisms that if rule of law is to mean supremacy of the law there is a big possibility for
tyrannical leaders to put in place tyrannical laws so that they enforce them tyrannically. Good
examples that are given to criticize the formulation by Dicey are the Apartheid regime in South
Africa and the rule by Idd Amin in Uganda. However, the challenge is drawn that when Dicey
was propounding for rule of law as against rule by law he wanted to see all unjust systems of
governments are discouraged at the expense of just laws. Therefore, it is worth to argue that by
supremacy of law Dicey meant supremacy of just laws.
Basing on that take Professor Shivji writes rule of law means that the exercise of political
power is in accordance with rules and laws and power is to be exercised within these rules
and laws and not according to personal whims or desires of the ruler. Every individual or
Institution which exercises authority or public power has to justify it by reference to law.
iv. Independence of judiciary

Judiciary is an autonomous organ, which is vested with powers to dispense justice. It deals with
the interpretation, construing and application of the law. It is a body that determines the guilty or
innocence of an accused person, also it decides on rights and liabilities of the people. Generally,
the administration of justice is in the custody of the Judiciary. Basing on the idea above Judiciary
needs to be independent for it to fulfill its functions without fear or favor. Judiciary must be kept
away from all forms of interference and control.
Hon. Justice Buxtorn Chipeta defined Independence of the Judiciary in these words As I
understand the constitutional position in our country, the Judiciary is supposed to be an
independent institution- independent in the sense that those who are entrusted by the
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Constitution to decide the rights and liabilities of guilt or innocence of people must be free
from all kinds of pressures, regardless of the corners from which those pressures come. The
Judiciary must be free from political, executive or emotional pressures if it is going to work
with the smoothness and integrity expected of it under the supreme law of the land- the
Constitution. It must not be subjected nor succumb to intimidation of any kind.
In the same lines, Prof. Peter writes, Independence of the Judiciary 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 pressures direct or indirect from any quarter or for any reason….
We always tend to think independence of the Judiciary means just independence from the
legislature and the executive; it means more than that.
It also means independence from political influence whether exerted by the political organ of the
State, or by political parties, or the general public, or brought in by judges themselves through
their involvement in politics, which may take two forms, viz. deciding in favor of dominant sects
(such as the ruling party) and, or of membership of judicial personnel to political parties.
Independence of the Judiciary also demands for the government to guarantee the welfare of
judicial officers especially judges and magistrates. There should be specific provisions on
salaries and other remunerations, security of tenure, judicial immunity and…. All these
dimensions are to be recognized in the Constitution of a country. With that, perspective
independence of the Judiciary today means more than interference of the Judiciary by the
Executive.
In modern times, the term Independence of the Judiciary incorporates freedom from all kind of
pressures no matter where they come from, whether political or administrative. The doctrine
embodies impartiality of adjudication, fairness of trial and integrity of the adjudicator.
Independence of the Judiciary once guaranteed in a country helps to indicate the recognition and
practice of justice for a great extent. Once the Judiciary is Independent Judges and Magistrates
are placed in a better and safe position to administer justice without fear or favor, again the
citizens gain confidence with their government in the sense that it is the rule of law that is in
place and not the rule by interests of the few people in power.
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Judicial Independence In a country that professes for the rule of law and principles of
democracy, Independence of the Judiciary is necessary Independence of the Judiciary has been a
determinant factor for democratization. The advocacy for an Independent Judiciary is not the
struggle to put in place the doctrine of Judicial Supremacy but rather to have in place the
political power that facilitate Judicial Independence. In this regard, the building of judicial
independence in any country depends on initiatiatives and efforts of more than one body. All
stakeholders in the struggle to build democratic States including the Courts of law have a very
big role to play in promoting judicial independence. However, that requirement does not excuse
the Governments from the big role to play in ensuring the Judiciary is independent.
Is the principle of constitutional law which explains about the freedom of the judiciary to make
decisions without any fear or favor as per article 107B of the constitution of Tanzania.
v. Parliamentary Supremacy
Supremacy of the parliament is a concept in the constitutional law which holds that the
legislative body has absolute sovereignty, and is supreme over all other government institutions
including executive or judicial bodies, it also holds that the legislative body may change or
repeal any previous legislation and so it is not bound by written law or by precedent.
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TOPIC THREE
3.0 PILLARS/ARMS BRANCHES OF GOVERNMENT
The Constitution of the United Republic of Tanzania of 1977 establish three arms/ pillars of
government which are
i. Executive
ii. Legislature
iii. Judiciary
Also articles 4(4) of the constitution of URT stipulate that each organ specified in this Article
shall be established and shall discharge its functions in accordance with the other provisions of
this Constitution.
3.1 EXECUTIVE/ GOVERNMENT

Is the administrative branch of the government which makes decisions, implement, give effect
and enforce the laws made by the legislative organ, Chapter two part one article 34 of the
constitution of the United Republic of Tanzania of 1977 has established the executive as an
administrative branch of the government. The executive consist of The President, Vice president,
President of Zanzibar, Prime Minister and the Cabinets.
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3.1.1 Power/ scope of executive

The provision of article 34(1)(2)(3) of the constitution of the United Republic of Tanzania of
1977 have stipulate the powers or authority of executive.
Authority over all union matters. Sub article 1 of article 34 of the constitution stipulates that
the Government of the united republic of Tanzania shall have authority over all union matters in
the united republic and over all other matters concerning mainland Tanzania.
3.1.2 System of executive;

i. Parliamentary system or Westminster Model;
In this model there is a separation between the Head of the state and head of the Government.
For example, in United Kingdom, The Head of the state is Queen while the Head of the
Government is Prime Minister;
ii. Presidential System or Washington Model;
In the presidential System the head of the state is elected President who is an Executive Head; In
that sense, he is also the head of the Government. He form his Cabinet from the person outside
the legislature. For example the state of America;
3.1.3 Types of executive in Tanzania

The structure of executive in Tanzania composed of two types;
i. Political executive;
this is a types of executive which include all member elected direct by the people to governing
the state, such as president, prime minister, vice president and all ministers;
ii. Official Executive;
this type of executive include all members which appointed by the president and other officials
hold their position due to their professions to governing the states, such as Regional
commissioner, District Commissioners, District Executive Directors(DED), RAS and others
officials in different regulatory such as TRA, TPA, TBS etc;
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3.1.4 Structure of executive in Tanzania;

In Tanzania, the provision of the constitution of the United Republic of Tanzania of 1977, the
Executive consists of the following composition; 1.The President; 2.Vice president; 3.President
of Zanzibar 4.Prime Minister; 5.Cabinets of Ministers;
1. President
According to the provision of article 33 of the constitution of URT it establishes the President of
United Republic of Tanzania, the President is the Head of the Executive. He is directly elected
and may be reelected only once; this means that the President can serve only two terms and these
need not be consecutively;
Powers of president;
All Executive Powers are in his hands. The following include the powers of president in URT;
see article 33(2) of the constitution of URT
i. President as the Head of the State (HoS)
a. Declare the state of emergency and war; article 44

b. Prerogative of mercy (pardon) art 45
c. Sign Treaties with Foreign Countries;
d. Assent/Dissent Parliament Bills;
e. May divide County in term of Region and Districts;
f. May Grant Land Rights;
g. Represent the United Republic within and outside the Country;
ii. The president as the Head of the Government (HoG);
a. Has the Power to Disseminate the Parliament and call for fresh elections;
b. Has Chair person on the Cabinets session; .
iii. The president as the Commander in-Chief of all Armed Force; see article 148(1)(2)
a. Appoint senior military officers, for instance Chief of Defense Force (CDF), Major
General etc;
b. He appoint senior Police Officers such as Inspector General Police;
c. He commissioned all military officers;
d. Authorized all military operation outside the country;
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iv. The President as the Head of the Public Services (HoPS);
a. Appoint senior government officials and may discipline or dismiss them;

b. Appoint the Attorney General;
c. May appoint person to office in the service of the Government of URT;
2. Vice president;
The Vice President is the principal assistant to the president. He hold the qualification as the
president. He stands for election as a running mate of the president; It is responsible for all
matter in the United Republic generally and in particular is responsible for assisting the president
in; Making follow up on the day to day implementation of union matters; Performing all duties
assigned to him by the president; Performing all duties and functions of the office of the
president when the president is out of office or out of the county;
3. The prime minister;
The Prime Minister is appointed from among elected members of the National Assembly; Soon
after election the President nominates a member of parliament who he think would command
majority support in the National Assembly; The nominee must be approved by the Assembly to
become the Prime Minister; The Prime Minister is the leader of government business in the
National Assembly in addition, the Prime minister control and supervises execution of the day to
day function and affairs of the Government of the United Republic of Tanzania;
4. President of Zanzibar
Is the head of executive in Zanzibar and chairperson of Zanzibar Revolutionary Council; He is

responsible for all matter in Zanzibar and represent the Government in any activities; He
organize together with the URT president for all government activities and assisted them in all
operation concerning the union matters;
5. The cabinets
Is the principal organ of advising the President regarding all matters of the government, The
decision made by the cabinet is final; The members of the Cabinet of the United Republic of
Tanzania include the following; The President who is the chairperson; The Vice President; The
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Prime Minister; The President of Zanzibar Government; The Attorney General; All ministers (not
Deputy) of the union Government.
3.1.5 Functions of executive

a. To formulate and execute policies;
b. To propose laws to be enacted by the parliament;
c. To oversee and ensure that laws are observed;
d. To provide and guarantee human rights;
e. To provide national defense and security;
f. To plan and implement social and economic development;
g. To initiate and maintain good international relations
3.2 LEGISLATURE/ PARLIAMENT
It is the branch of government whose main function is to make and un-make laws of the state.
The legislature is established under article 62(1) of the constitution of URT and it consists of the
national assembly and the president.
3.2.1 Structure/composition of parliament;

i. The President of the URT (Chief Executive);
Is one of the part of parliament exercise authority vested in him by the Constitution in so far as
his assent/ dissent of the law is a necessary aspect in the completion of the enactment process;
ii. The National Assembly;
Is the principle organ of the United Republic of Tanzania and authority on behalf of the people to
oversee and advise the government; It consists MP’s from different categories specified in
(Article 66) of the URT Constitution;
3.2.2 Composition of the national assembly in Tanzania

a. Members elected Direct to represent Constituencies;
b. Five members elected by the Zanzibar House of Representative from among its members;
c. Speaker if not a member of the National Assembly;
d. The Attorney General(Ex- Official);
e. Not more than 10 people appointed by the President;
f. Women members whose numbers shall increase progressively starting with twenty
percent of the members;
3.2.3 Powers/scope of legislature/ parliament

1. Power of make and un-make legislations/laws.
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In accordance with article 64 of the constitution of URT the parliament is the only organ vested
power by the constitution to make and un-make laws of the country.
2. It may remove (impeach) the president from the office under different circumstance
Article 46A (1) of the constitution.
 Has committed to violate the constitution.
 Has violated the law of Ethics of Public Leaders.
 Has believed in a manner that lowers the prestige of the President Office.
3. It may remove the Vice President form the office under the following grounds.
Article 50(3)
 Has committed to violate the constitution;
 Has violate the law of Ethics of Public Leaders;
 Has believed in a manner that lowers the prestige of the President Office.
4. It may remove Prime Minister from Office under the following ground;
 If the members of the National Assembly pass a Vote of No Confidence Article 53A (1)
of the constitution.
3.2.4 Functions of legislature/ parliament

1. To make Laws of the Country.
2. To oversee and advise the government.
3. To ratify the agreement and Treaties.
4. To discuss and approve the government budget.
5. To authorize long and short term plans;
6. To review the work done the government institutions.
7. To put question to any minister concerning public affairs.
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3.3 JUDICIARY
It is the branch of the government whose main function is to interpret laws and adjudicate over
disputes. The judiciary is established under article 107A (1) of the constitution of URT.
3.3.1 Structure of judiciary in Tanzania Mainland

The judiciary of Tanzania it consist of Courts of
 Appeal, article 117 of the constitution of URT
 High Courts, article 108 of the constitution of URT
 Subordinates Courts (Resident Magistrate Court and District Court), section 4&5 of
MCA Cap 11RE 2002
 Primary Courts, section 3 of MCA Cap 11 RE2002
3.3.2 Power/ scope of judiciary

The same provision article 107A (1) have provide the power of judiciary, the provision stipulates
that the judiciary shall be the authority with final decision in dispensation of justice within all the
united republic of Tanzania
3.3.3 Functions of judiciary

1. Settling disputes between people and others parties;
2. Protecting the Rights of the Individuals;
3. Interpreting laws;
4. To enforce laws and providing justice;
5. Make sure that the parliament does not make laws which goes against the
constitution;
6. Helping in the development of laws and acting as a guardian of the constitution;
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TOPIC FOUR
4.0 BASIC/ FUNDAMENTAL CONSTITUTIONAL PRINCIPLES
4.1 Rule of law
The principle of rule of Law is a historical phenomenon. The principle stands against rule by
personal whims and caprices of the monarchies. Under the monarch regime, it is rule by man that
prevails as opposed to rule of law. Traditionally, rule of law, as propounded by Dicey. Means
Supremacy of the law and equality before the law. However, Constitutional scholars raised many
criticisms that if rule of law is to mean supremacy of the law there is a big possibility for
tyrannical leaders to put in place tyrannical laws so that they enforce them tyrannically. Good
examples that are given to criticize the formulation by Dicey are the Apartheid regime in South
Africa and the rule by Idd Amin in Uganda. However, the challenge is drawn that when Dicey
was propounding for rule of law as against rule by law he wanted to see all unjust systems of
governments are discouraged at the expense of just laws. Therefore, it is worth to argue that by
supremacy of law Dicey meant supremacy of just laws.
Basing on that take Professor Shivji writes rule of law means that the exercise of political
power is in accordance with rules and laws and power is to be exercised within these rules
and laws and not according to personal whims or desires of the ruler. Every individual or
Institution which exercises authority or public power has to justify it by reference to law.
The meaning of rule of law has been changing from time to time following great changes and
challenges facing the world's democracy and human rights issues. The advocacy for democracy
and human rights has added more value to the meaning of rule of law. Today it is not enough to
say about supremacy of the law, but it values a lot to talk about the body that makes those laws.
The people who are the result of peoples' choice must constitute the bodythat is vested with
powers to make laws. The body should have a representative flavour; that is to say, all the people
should be well represented. Once the representative body is put in place it becomes easier to
make the lawmakers accountable at the moment they enact unjust laws. Therefore, rule of law
demands for a representative body to make laws of the country. In line with a representative
body, the emphasis today is also on just and fair laws. The other ingredient that adds value to the
rule of law is Independence of the Judiciary.
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The Judiciary as the custodian of justice should enjoy the maximum freedom enough to make it
administer justice without fear or favor. Knowing the importance of Independence of the
Judiciary as an element of rule of law the International Conference of Jurists held in New Delhi
in 1959 pronounced that Independence of the Judiciary is an indispensable requisite of a free
society under the rule of law. The experience since 1959 shows that for a country to be a rule of
law State one among the things that need to feature in that particular country is the Judiciary that
is Independent. Separation of Powers plays an important part in the doctrine of rule of law. In
any, State rule of law is not complete if the Powers of the State are not separated from one
another. There must be three State Organs. The Officials in these Organs are to be different
performing different functions. Democracy is an essential element in rule of law. Through
democracy, people are made part of the government. The people are participated fully in the
decision making. Democracy allows people to elect their representatives in the government. In a
rule of law, State people enjoy the freedom of speech and expression, which is part and parcel of
democracy. In practicing democracy through freedom of speech and expression people can do it
either by way of conduct or orally. In a country, where rule of law is predominant people can
freely express what they want their government to do for them, and condemn the acts of
government that jeopardize the entire practice of rule of law. Therefore, the new jurisprudence on
rule of law incorporates, apart from well-known traditional definitions, issues of Democracy,
respect for basic human rights, Independence of the judiciary, Representative Parliaments,
recognition and respect of peoples' views and expression in the running of governments. Rule of
law in modern times also calls for Transparency and accountability on the part of the
government.
According to Dicey, the rule of law is one of the fundamental principles of the English Legal
system. In his book he attributed the following three meanings to the said doctrine: supremacy of
law, equality before law and predominance of legal spirit9.
(a) Supremacy of the law
The rule of law means the absolute supremacy or predominance of regular law as opposed to the
influence or arbitrary power or wide discretionary power. It excludes the existence of
9 C.K. Takwani: Lectures of Administrative Law
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arbitrariness, of prerogative or even wide discretionary authority on part of the Government.

Thus, Dicey assert that a man may be punished for a breach of law, but can be punished for
nothing else10. He further contended that, wherever there is discretion, there is room for
arbitrariness and that in a republic no less than under a monarchy discretionary authority on the
part of the Government must mean insecurity for legal freedom on the part of its subjects 11. Thus
the rule of law requires that the Government should be subject to the law, rather than the law
subject to the Government12. Therefore the doctrine emphasis that no man can be arrested,
punished or be lawfully made to suffer in body or goods except by due process of the law
established in the ordinary legal manner before the ordinary courts of the land13.
(b) Equality before the law
In regard with the second principle of the rule of law, there must be equality before the law or the
equal subjection of all classes to the ordinary law of the land administered by the ordinary
courts14. According to Dicey in England, all persons were subject to one and the same law, and
there were no extraordinary tribunals or special courts for the officers of the Government and
other authorities15. Dicey criticized the French legal system of droit administratif in which there
were separate administrative tribunals for deciding cases between the officials of the State and
the citizens. Thus, exemption of the civil servants from the jurisdiction of the ordinary courts of
law and providing them with the special tribunals was negation of equality16, whereas any
10 Dicey: the Law and the Constitution, 1915
11 Ibid
12 Wade: Administrative Law, 1994
15 Ibid
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encroachment on the jurisdiction of the courts and any restrictions on the subject’s unimpeded
access to them are bound to jeopardize his rights17.
(c) Predominance of legal spirit
In his book Dicey explained that in many countries rights such as to personal liberty, freedom
from arrest, freedom to hold public meetings are guaranteed by a written Constitution; in
England those rights are the result of judicial decisions in concrete cases which have actually
arisen between the parties18. Dicey emphasized the courts of law as guarantors of liberty and
suggested that the rights would be secured more adequately if they were enforceable in the courts
of law than by mere declaration of those rights in a document i.e, constitution as they can be
ignored, curtailed or trampled upon.19
4.1.1 Rule of Law in Tanzania

Since independence, the Tanzania political and legal system has been tainted with the practice of
non-adherence to the doctrine of rule of law. There is wide divergence between what is said in
theory by those in power and what happens in practice. From time to time politicians indicated
the belief in rule of law. For example the comments given by the former President Nyerere on the
penalties given to the army mutineers back in 1964, referred to the rule of law as one of the
principles guiding the country. He said
‘There is some considerable criticism of the very lenient sentences passed on the fourteen
soldiers convicted of conspiracy and taking part in the mutiny of the Tanganyika Rifles in
January of this year. The Government wishes to make clear that it shares the feeling that the
penalties imposed by decision of the high Court Judge and two army officers bore no relation
to the seriousness of the offences and the damages, which was done to our country. Despite
this criticism, the Government does not intend to vary the sentences imposed in these cases. To
interfere with the court’s decision would be to do exactly that thing for which the nation
condemns the soldiers – it would be to abrogate the rule of law… the rule of law is the basis
19 Ibid
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on which rests the freedom and equality of our citizens. It must remain the foundation of our
State. We must not allow even our disgust with the mutineers to overcome our principles 20’
The history of the rule of law in Tanzania has great linkage with that of Bill of rights for two
reasons21:-
(a) at independence the powers that be rejected the inclusion of a Bill of Rights in the
Constitution on the grounds that the Governments believed that the rule of Law was best
preserved not by formal guarantees, in a Bill of Rights which invite administering justice
free from political pressure
(b) in the absence of Constitutional safeguards that were negated by the exclusion of the Bill
of Rights, the state in Tanzania under one party system went on to create a very powerful
and centralized government authority capable of enforcing its will invariably illegally at
the detriment of both individual and community rights in obvious negation of the rule of
law.
The relevant article within the Constitution of Tanzania is Article 13
“All persons are equal before the law and are entitled, without any discrimination, to protection
and equality before the law” Article 13(1)
In explaining this article, Prof. Maina observes that, the rule of law demands that all subjects be
treated equally before the law. This means all classes of people in civil society should be treated
alike by law itself and before all law enforcement bodies and agencies which are created by the
law. The law should neither be made to benefit a particular section of a society nor to the
disadvantage of another.
20 Nyerere J.K: Freedom and Unity: A Selection from writings and speeches 1952-
1965 Dar es Salaam, Oxford University Press, 1966; at pp 298-299; also quoted in
Peter, Chriss Maina; Human Rights in Tanzania: Selected Cases and Materials 1977.
Koln: Koppe, Dar es Salaam; at pp.305-306
21Mtaki and Okema: Constitution Reforms and Democratic Governance in Tanzania,

1994; article by Wambali Michael: “The Doctrine of Rule of Law and the Functioning
of Government in Tanzania”
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Equality before the law has also been taken to be a rule requiring all functions of the state which
are likely to affect the basic rights of the people to be subjected equally before the law. The rule
of law demands that the State and its organs should act according to and within the authority
conferred by law.
In the same vein, they should not give unnecessary privileges and cushions to the State and its
organs. This rule is strict in the sense that, apart from the State being a subject of law as a
judicial person. If the State will accord such privileges it will abandon its duty to acting within
the law and the rights of the individuals will be at stake and without remedy in cases of
excesses.22
In the case of Chumchua Marwa v Officer in Charge of Musoma and Another 23,
Mwalusanya J stated that
“I believe that the rule of law means more than acting in accordance with the law. The rule of
law must also mean fairness of the government. Rule of law does not give the government too
much power. The rule of law is opposed to the rule of arbitrary power. The rule of law
requires that the government should be subject to the law rather than the law subject to the
government. If the law is wide enough to justify a dictatorship then there is no rule of law.
Therefore if by the rule of law all it means is that the government will operate in accordance
with the law, then the doctrine of rule of law becomes a betrayal of the individual if the laws
themselves are not fair but are oppressive and degrading” However, it should be noted that
there have been erosion of the rule of law and violations of Human Rights in Tanzania before and
after the enactment of the Bill of Rights in 1984.
4.2 Separation of power

The doctrine of Separation of powers traces its origin way back to Aristotle's work. John Locke
(1632-1772) later postulated it in his book, The Second Treatise of Civil Government. However,
the doctrine received its modern formulation in the middle of the 18th Century by the renowned
22 Chriss Maina Peter: Human Rights in Tanzania: Selected cases and Materials –
1997, pp 379 - 380
23 High Court at Mwanza, Misc Criminal Cause No. 2 of 1988 (unreported)
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French jurist called Montesquieu, who said: When the Legislative Power is united with the
Executive Power in the same person or body of magistrates, there is no liberty because it is to
be feared that the same Monarch or the same Senate will make tyrannical laws in order to
execute them tyrannically. There is again no liberty if the judicial Power is not separated from
the Legislative Power and from the Executive Power… If it were joined to the Executive
Power, the judge would have the strength of an oppressor.
According to the formulation by Montesquieu the doctrine simply means there are to be three
different powers of the State, which are the executive, the Legislature and the judiciary, their
personnel are to be different and their functions should be different. Professor Peter prescribes
that, under the doctrine the legislature is supposed to make laws, the judiciary to interpret and
administer them and the executive to enforce them. Constitutionalism demands for its efficacy a
differentiation of governmental functions and a separation of the powers that exercise them.
However, it has to be noted that practice and exigencies of modern governments have made a
complete adherence to the doctrine impossible. The focus now is on insisting checks of one
power by another. Separation of Power is taken to be an important element for constitutionalism
as it prevents tyrannical rule. It was Montesquieu's argument that separation of power between
different organs of the State helps to deter abuse of power and the three organs mutually act as
checks on each other thereby balancing it. The practical part of separation of powers proves that
it is inevitable to strictly follow the three well-known meanings of the doctrine. Matters are
designed in such a way that each branch operates as a check on the other. United States is a good
example on this. The President may veto legislation but has no power to dissolve Congress; he
can also be impeached by the Congress. Though the President can appoint federal judges, his
appointments need to be confirmed by the Senate.
The Congress not the Executive removes Federal judges. According to the Constitution of
Tanzania of 1977, the doctrine of Separation of Powers has been embodied therein.
 Article 4 (general separation of powers)

 Chapter II: Executive
 Chapter III: Legislature
 Chapter V: Judiciary
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However, there has been no strict separation of powers in Tanzania. Thus for evidence to prove
the absence of separation of powers in Tanzania refer lecture notes of Constitution & Legal
Systems of East Africa.
4.2.1 Checks and Balances

Checks and balance refers to a mechanism designed to limit power of a single individual or body
of government and provide for the harmonious interrelationship of the people and all the organs
of government or other social institutions. Each branch of the State has the ability to counter the
actions of the other two and hence prevent the abuse of power by the State organs.
The idea of checks and balances seeks to make the separation of powers more effective by
balancing the powers of one agency against those of another through a system of positive mutual
checks exercised by the governmental organs upon one another. Thus, the executive might be
empowered to dissolve the legislature and the legislature to impeach the chief executive, to
approve the appointment of certain top State officials.
The checks differ from one State to another depending on the type of government and its
constitution. Checks and balances presupposes that a specific function is assigned primarily to a
given organ, subject to a power of limited interference by another organ to ensure that each organ
keeps within the sphere delimited to it.
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TOPIC FIVE
5.0 CLASSIFICATION OF ADMINISTRATIVE ACTIONS
Are safe guards to ensure that those powers of administrative authorities are exercised with their
ambits Administrative action means any action or non-action of any executive agency of the state
with respect to the proposal, drafting, development, consideration, amendment, adoption or
repeal of any rule, regulation or utility rate, and any action or non- action of any executive
agency or quasi-public agency regarding a contract, grant, award, purchasing agreement, loan,
bond, certificate, license, permit or any other matter which is within the official jurisdiction or
cognizance of such an agency.
Administrative action is any judicial decision or any official administrative pronouncement,

ruling, regulatory procedure, notice or announcement including any notice or announcement of
intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or
regulation.
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5.1 The Rationale of Classification

Though distinguishing the functions of these organs of the state is difficulty still there is a need
to draw a test upon which can classify these functions. The difficulties may be due to the
following reasons:-
 The questions arises for consideration is whether the functions performed by the
executive authorities are purely administrative, quasi-judicial or quasi-legislative in
character
 There is a difficulty in a case which a single proceeding may at times combine various
aspects of the three functions.
Thus, the classification of the functions is necessary and inevitable as many consequences flows
from it. The failure to classify the functions may bring about confusion as in the following
examples as observed by Takwani
 If the executive authority exercises a judicial or quasi-judicial function, it must follow the
principles of natural justice and is amenable to the writ of certiorari or prohibition, but if
it is administrative, legislative or quasi-legislative function, this is not so.
 If the action of the executive authority is legislative in character, the requirement of
publication, laying on table etc, should be complied with, but it is not necessary in the
case of pure administrative action.
 If the action is administrative, delegation is permissible, but if it is judicial, it cannot be
delegated.
 An exercise of legislative power may not be held invalid on the ground of
unreasonableness, but an administrative decision can be challenged as being
unreasonable.
5.2 General Distinction of Legislative, Executive and Judicial Functions

The general distinction of the three functions has been put forward by Willis as he defined each
function as follows:-
(a) Legislative power is the power to create rights, powers, privileges, or immunities, and
their correlatives as well as status, not dependent upon any previous rights, duties, etc.(or
for the first time), that is, apparently, the power of creating antecedent legal capacities
and liabilities.
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(b) Judicial power is the power to create some right or duty dependent upon a previous right
or duty, that is, apparently the power to create remedial legal capacities and liabilities.
(c) Executive power is the power which includes all governmental powers with exception of
legislative or adjudicative power, that is, the power which is concerned mostly with the
management and execution of public affairs.
a. Legislative Functions
Legislative functions of the executive consists of making rules, regulations, bye-laws etc. though
the distinction as between legislative and administrative functions of the executive is difficulty, it
is necessary to draw a line as different legal rights and consequences may ensue. According to
Schwartz a particular function may be termed legislative or rule – making rather than judicial or
adjudication, it may have substantial effects upon the parties concerned. In making of legislation
whether primary or delegated there is no right to be heard, unless Wade: Administrative Law,
1994
Legislative Function Judicial Function
1 Legislation looks to the future and changes A judicial inquiry investigates, declares and
. existing conditions by making a new rule to enforces liabilities as they stand on present or
be applied thereafter to all or some part of past facts and under laws supposed already to
those subject to its power. exist.
This distinction has been proposed by Justice Holmes whereby the main aspect of distinction is
element of time.
 A rule (legislative function) prescribes future pattern of conduct and creates new rights
and liabilities, whereas a decision (judicial function) determines the rights and liabilities
on the basis of present or past facts, and declares the pre-existing rights and liabilities.
5.3 The Distinction of Legislative and Administrative Functions

Legislative Administrative
1 -A power to make rules of general -A power to give an order in a Test: applicability
. application is a legislative power and specific cases is an executive of the act24
the rule is a legislative rule power and the order is an
24 Griffith and Street: Principles of Administrative Law, 1973, p.50
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executive action
-A legislative act is a creation and -Administrative act is the By De Smith25
promulgation of a general rule of a application of general rule to a
conduct without reference to particular case
particular cases
2 -A legislative act looks to the future -Administrative order is issued The Report of the
. and changes the existing conditions to a specific persons only Committee on
by making new rule to be applied Ministers’
thereafter to all or part of those Powers26
subject to his power and determines
what shall in the future be the mutual
rights and responsibilities of the
parties by prescribing a binding rule
of conduct
As it has been noted by the Committee that ‘it is indeed difficult in theory and impossible in
practice to draw a precise dividing line between the legislative function on one hand and purely
administrative on the other’ as performed by administrative authority.27
There are legal consequences which flow from the above distinction as put forward by De Smith
as follows28:-
(a) If an order is legislative in character, it has to be published in a certain manner, but this is
not necessary if it is of an administrative nature.
25 Judicial Review of Administrative Actions, 1995, p.1006
26 1932, CMD 4060
27 Ibid
28 Judicial Review of Administrative Action, 1980, p.71-73
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(b) If an order is legislative in character, the court will not issue a writ of certiorari to quash
it, but if an order is an administrative order and the authority was required to act
judicially, the court can quash it by issuing a writ of certiorari.
(c) Generally, subordinate legislations cannot be held invalid for unreasonableness, unless its
unreasonableness is evidence of mala fide or otherwise shows the abuse of power. But in
case of unreasonable administrative order, the aggrieved party is entitled to a legal
remedy.
(d) Only in most exceptional circumstances can legislative powers be sub-delegated, but
administrative powers can always be sub-delegated.
(e) Duty to give reasons applies to administrative orders but not to legislative orders.
b. Judicial Functions
The judicial functions presupposes the existence of dispute between two or more parties whereas
it involve the following requisites29
(a) The presentation of their case by the parties to the dispute

(b) If the dispute is a question of fact, the ascertainment of the fact by means of evidence
adduced by the parties to the dispute and often with the assistance of argument by or on
behalf of the parties, on evidence
(c) If the dispute between them is a question of law, the submission of legal arguments by
parties; and
(d) A decision which disposes the whole matter by finding upon the facts in dispute and
application of the law of the land to the facts so found, including, where required, a ruling
upon any dispute of law.
If all these requisites present, the decision is a judicial decision even though it might have
been made by an authority other than the court, such as the Minister, Board, Executive
Authority, Administrative Officer or Administrative Tribunal.30
c. Quasi – Judicial Functions

This means the authority when exercise takes some of the attributes of judicial functions. The
Committee describes the functioning of quasi-judicial body as the one which presupposes the
29 The Report of the Committee on Ministers’ Powers 1932, CMD 4060 (4073-74)
30 C.K. Takwani: Lectures of Administrative Law, p.45
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existence of dispute between two or more parties and involve the presentation of their case by
parties and ascertainment of facts by means of evidence i.e (a) and (b), whereas does not
necessary involve a dispute of question of law and the decision is not by way of application of
law on said facts i.e.(c) and (d)31.
Criticisms32
 The Committee characterized the judicial function as being devoid of any discretionary
power but obliged to merely apply the law to the proved facts, but in reality the court also
do exercise discretion
 The authority may decide the matter not between two or more contesting parties but
between itself and another party
 These some cases in which no evidence is required to be taken and yet the authority has
to determine the questions of facts after hearing the parties, e.g. rate-making or price
fixing.
 After ascertainment of the facts, the authority is not bound to apply the law to the facts so
ascertained, but the decision may be based on public policy or administrative discretion.
5.4 The Distinction between Quasi – Judicial and Judicial Functions

A quasi – judicial function differs from a purely judicial function in the following respects:-33
(a) a quasi-judicial authority has some of the trappings of a court, but not all of them;
nevertheless there is an obligation to act judicially
(b) A lis inter parties is an essential characteristic of a judicial function, but this may not be
true of a quasi – judicial function
(c) A court is bound by the rules of evidence and procedure while a quasi – judicial authority
is not
(d) While a court is bound by precedents, a quasi – judicial authority is not
(e) A court cannot be a judge in its own cause (except in contempt cases) while an
administrative authority vested with quasi – judicial powers may be a party to the
controversy but can still decide it.
31 The Report of the Committee on Ministers’ Powers 1932, CMD 4060 (4073-74)
33 Basu: Administrative Law, 1996, pp.241-16
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Therefore a quasi – judicial decision is nearer the administrative decision in terms of its
discretionary elements and nearer the judicial decision in terms of procedure and objectivity of
its end-product34.
d. Administrative Functions
As it has been very difficult to define what administrative functions mean or contains from the
outset, therefore the approach which has been used to classify the administrative function is the
executive power connotes the residue of the governmental functions that remains after
legislative and judicial functions are taken away.35Thus, the administrative functions are those
functions which are neither legislative nor judicial in character. The following are ingredients
present in administrative functions36:-
 An administrative order is generally based on governmental policy or expediency

 In administrative decisions, there is no legal obligation to adopt a judicial approach to the
questions to be decided, and decisions are usually subjective and not objective.
 An administrative authorities is not bound by the rules of evidence and procedure unless
the relevant statute specifically imposes such an obligation
 An administrative authority can take a decision in exercise of a statutory power or even in
the absence of statutory provisions, provided such decision or act does not contravene
provisions of any law
 Administrative function may be delegated or sub-delegated unless there is specific bar or
prohibition in the statute
 While taking a decision, an administrative authority may not only consider the evidence
adduced by the parties to the dispute, but may also use its discretion.
 An administrative authority is not always bound to the rules of natural justice unless the
statute casts such duty on the authority, either expressly or by necessary implication or if
it is required to act judicially or fairly
 The prerogative writs of certiorari and prohibition are not always available against
administrative actions
 An administrative order may be held invalid on the ground of unreasonableness.
34 Griffith and Street: principles of Administrative law, 1973, p.141
35 AIR 1955 SC 549:(1955) 2 SCR 225
36 C.K. Takwani: Lectures of Administrative Law, p.47-48
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5.5 The Distinction between Administrative and Quasi – Judicial Functions

Acts of administrative authorities may be purely administrative or may be legislative or judicial
in nature. The decisions which are purely administrative stand on the wholly different footing
from judicial as well as quasi-judicial decisions and therefore they must be distinguished. 37
Distinguishing the two is very difficult task as MacDermott exclaimed that ‘where does the
administrative end and judicial begin? The problem here is that of demarcation and the courts
are still in the process of working it out38’
The rationale behind this distinction is the increase of power of administrative authorities as it is
necessary to provide guidelines for the just exercise thereof, thus to prevent abuse of power and
to see that it does not become a new despotism, courts have evolved certain principles to be
observed by adjudicating authorities.39
The required test as to distinguish the two functions as performed by an administrative authority
is the duty to act judicially and thus for a one to ascertain whether a particular statutory authority
is a quasi – judicial body or merely an administrative body is to check if it has the duty to act
judicially.
The question is how would you ascertain whether such authority has the duty to act judicially?
Referring to the observation made by Atkin L.J in R v Electricity Commissioners40 that
‘whenever anybody of persons having legal authority to determine questions affecting the rights
of subjects and having the duty to act judicially act in excess of their legal authority, they are
subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs’
Administrative function Quasi – Judicial function

1 Lis inter parties -in absence of lis inter parties the -in the presence of lis inter parties
. administrative authority is not bound the administrative authority has to
37 Ibid
38 MacDermott, cited by Basu: Commentary on the Constitution of India, Vol.

B1975, p.151
39 C.K. Takwani: Lectures of Administrative Law, p.48-49
40 (1924) 1 KB 171: 93 LJKB 390:130 LT 164
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to act in quasi-judicial manner decide in quasi-judicial manner

2 Quasi – lis - in absence of quasi-lis the -in presence of qiasi-lis, whereas
. administrative authority is not the administrative authority has to
obliged to act in quasi – judicial decide between itself and another
manner party or a decision which will
prejudicially affect any person,
thus it has to act judicially.
There is no precise way on distinguish the two functions, however a person can scrutinize the
indicators as can help to distinguish:-
 One has to look to the nature of the power conferred

 The person or persons on whom it is conferred
 The framework of the law conferring that power
 The consequences ensuing from the exercise of such power; and
 The manner in which such power is expected to be exercised
Therefore, the requirement of acting judicially in essence is nothing but a requirement to act
justly and fairly and not arbitrarily or capriciously.41
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TOPIC SIX
DELEGATED LEGISLATION
6.0 Introduction
The picture of the law making process would be incomplete without a consideration of
delegated, or subordinate, legislation.
Delegated legislation referred to as secondary legislation, is legislation made by a person or body
other than Parliament. Parliament, through an Act of Parliament, can permit another person or
body to make legislation. An Act of Parliament creates the framework of a particular law and
tends only to contain an outline of the purpose of the Act. By Parliament giving authority for
legislation to be delegated it enables other persons or bodies to provide more detail to an Act of
Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit
others to make law and rules through delegated legislation. The legislation created by delegated
legislation must be made in accordance with the purposes laid down in the Act.
The Oxford Companion to Law (by David M. Walker, 1982, p. 347). "Delegated Legislation"
means legislation made not by Parliament but by persons or bodies on whom Parliament has
conferred power to legislate on specified subjects.
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The Interpretation of Laws Act (Cap. 1, RE: 2002), section 4 defines "Subsidiary
Legislation", means any order, proclamation, rule, rule of court, regulation, notice, delegated
legislation or instrument made under any Act or other lawful authority.
'The act of granting another the power to act on one's behalf'. (Per Webster's New World Law
Dictionary).
6.1 Legal basis of 'delegated legislations' in Tanzania
i. The Constitution of the United Republic of Tanzania, 1977 Article 97(5)

"The provisions of this Article or Article 64 of this Constitution shall not prevent Parliament
from enacting laws making provisions conferring on any person or department of Government
the power to make regulations having the force of law or conferring the force of law on any
regulations made by any person, or any department of Government".
However The Constitution of the United Republic permits Parliament to delegate its law-making
functions to other persons or authorities. Article 97 (5) provides:
“Masharti yaliyopo katika ibara hii au katika ibara ya 64 ya Katiba hii hayatalizuia Bunge
kutunga sheria na kuweka masharti ambayo yaweza kukabidhi kwa mtu yeyote au kwa idara
yoyote ya Serikali madaraka ya kuweka Kanuni za nguvu ya sheria au kuzipa nguvu ya
kisheria Kanuni zozote zilizowekwa na mtu yeyote au idara yoyote ya Serikali”
A liberal translation of the above provision basically provides that the Constitutional provisions
stating that the Parliament shall be the sole law-making organ shall not prohibit it, (Parliament)
from enacting a law to delegate its law-making powers to any other person or authority.
ii. Parent/enabling/mother/primary act

"An Enabling Act" is referred to as a principal legislation (made by the Parliament) which
confers legislative powers to individuals (public/civil servants), department or agency of the
government to make delegated legislation. For example, Sections 153, 155, 160, 161, 162, 163,
168, 169 of The Local Government (District Authorities) Act [RE 2002] and Sections 88, 89, 90
and 94 of The Local Government (Urban Authorities) Act, [RE 2002], section 12 of The
Appellate Jurisdiction Act (RE: 2002, Chief Justice to make rules].
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***Section 33(1) of The Arms and Ammunition Act (RE: 2002) provides that, "the Minister
may, after consultation with the Arms Authority for Tanzania Zanzibar, make regulations…."
6.2 Who makes delegated legislation?

Normally, the Enabling Act provides (with certainty) a person or a government body (whatever
the case may be) responsible to make a delegated legislation. In practice, delegated legislations
are made by Ministers, Local Governments/Authorities, Directors, Commissions, Boards, the
Chief Justice, the Speaker of the National assembly, the President and etc.
6.3 Factors for the growth of delegated legislation in Tanzania.

 Shortage of time for parliament session
 Technicalities
 A need to have flexibility in unforeseen events
 A need to cover quick actions in time of emergency
 Increasing in activities of modern administration
 A need to have laws which are practicable and which can be changed according to the
changing circumstances

6.4 Types of 'delegated legislation

i. Statutory Instruments (Delegated Legislation National wide in scope):
Delegated Legislations which inserts/fills detail to Acts of Parliaments (namely as Rules,
Regulations, Schemes and Orders). They are issued by a respective Minister, or The C.J (Court
Rules).
ii. Orders:
Made by the Minister to dissolve or create a public body or setting the date for commencement
of an Act of the Parliament.
iii. Regulations:
Made by the Minister setting out in detail how an Act of the Parliament is to be implemented.
iv. Rules:
Made by the Minister, Courts/Tribunal officials setting out procedures
v. Directives/Directions/proclamations:
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Made by the Minister (or any other relevant authority) giving binding instructions to public body
about how it should discharge its powers.
vi. Orders of Council: (In UK)

Made by the Lords of the Privy Council in their own right. Intended to regulate bodies which the
Privy Council exercises a supervisory function, e.g. professional bodies and the higher education
sector.
vii. By Law (Delegated Legislation with limited application).
Delegated Legislation made by Local Authorities to deal with matters which affect their locality.
6.5 Status/position of delegated legislation' in relation to principal legislation
Delegated Legislations are inferior/ subordinate to Principal Legislations (i.e. any Delegated
Legislation which is inconsistence with any Act of the Parliament is null and void). However, a
Delegated Legislation which is properly enacted becomes part and parcel of the law of the land
(like any other law) capable of being enforced in the Court of law. Sections 41 and 42 of Cap. 1
provides that;
"41(1) A reference in a written law to a written law shall be construed to include a reference to
any subsidiary legislation made under that written law.
(2) A reference in a written law to an Applied Act shall be construed to include a reference to any
subsidiary legislation made under that Act.
42. Any act done under subsidiary legislation shall be deemed to be done under the written law
under which the subsidiary legislation was made."
6.6 Functions which can be delegated (permissible delegation)

a) Commencement
A lot of statutes contain an ‘appointed day’ clause, which empowers the government to appoint a
day for the Act to come into force, thus in such cases, the operation of the Act depends on the
decision of the Government.
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b) Supplying details
After the legislative policy has been formulated by the legislature, the function of supplying
details may be delegated to the executive for giving effect to the policy.
c) Inclusion
Sometimes, the legislature passes an Act and makes it applicable in the first instance, to some
areas and classes of persons, but empowers the government to extend the provisions thereof to
different territories, persons or commodities.
d) Exclusion
There are some statutes which empower the Government to exempt from their operation certain
persons, territories, commodities, etc.
e) Suspension
Some statutes authorize the Government to suspend or relax the provisions contained therein.
f) Application of existing laws
Some statutes confer the power on the executive to adopt and apply statutes existing in other
areas without modifications only with incidental changes to a new area. There is no
unconstitutional delegation in such cases, as the legislative policy is laid down in the statute by
the competent legislature.
g) Modification
Sometimes, provision is made in the statute authorizing the executive to modify the existing
statute before application. This is drastic power as it amount to an amendment of the Act, which
is legislative act, but however, this flexibility is necessary to deal with local conditions.
h) Prescribing punishments
In some cases the legislature delegates to the executive the power to take punitive action
i) Framing of rules
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A delegation of power to frame rule, by-law, regulations, etc is not unconstitutional, provided
that the rules are required to be laid before the legislature before they come into force and
provided further that the legislature has power to amend, modify or repeal them.
j) Removal of difficulties (Henry VII clause)
Power is sometimes conferred on the Government to modify the provisions of the existing
statutes for the purpose of removing difficulties. When the legislature passes as Act, it cannot
foresee all the difficulties which may arise in implementing it. Therefore the executive is
empowered to make necessary changes to remove such difficulties.
6.7 Functions which cannot be delegated (impermissible delegation)

i. Essential legislative functions
Legislative policy must be laid down by the legislature itself and by entrusting this power to the
executive; the legislature cannot create a parallel legislature.
ii. Repeal of law
Power to repeal a law is essentially a legislative function, and therefore, delegation of power to
the executive to repeal a law is excessive delegation and is ultra vires.
iii. Modification
Power to modify the Act is an essential legislative function; therefore, delegation of power to
modify an Act without any limitation is not permissible.
iv. Exemption
A legislature cannot delegate the power of exemption to the executive without laying down the
norms and policy for the guidance of the latter.
v. Removal of difficulties
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Under the guise of enabling the executive to remove difficulties, the legislature cannot enact a
Henry VIII clause and thereby delegate essential legislative functions to the executive, which
could not otherwise have been delegated.
vi. Retrospective operation
Giving an Act retrospective effect is essentially a legislative function and it cannot be delegated.
vii. Future Acts
The legislature can empower the executive to adopt and apply the laws existing in other counties,
but it cannot delegate the power by which the executive can adopt the laws which may be passed
in future.
viii. Ouster of jurisdiction of Courts
The legislature cannot empower the executive by which the jurisdiction of courts may be ousted.
ix. Offences and penalty
The making of a particular act or omission into an offence and prescribing punishment for it is an
essential legislative function and cannot be delegated. However, if the legislature lays down the
standards or principles to be followed by the executive in defining an offence and provides the
limits of penalties, such delegation is permissible.
6.8 Control of delegated legislation

There are controls in place in relation to delegated legislation to ensure that those who make law
under it are doing it in an appropriate manner.
1. Parliamentary control
Parliament exercises control over delegated legislation in that when the Act of Parliament is
created, Parliament stipulate in the Act of Parliament the parameters with regard to delegated
legislation. Further, there are scrutiny committees which consider delegated legislation within a
Bill as it passes through the Houses of Parliament.
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The object of parliamentary control over delegated legislation is to keep watch over the rule-
making authorities and also to provide an opportunity to criticize them if there is abuse of power
on their part.42 The Modes of parliamentary control are two modes upon which parliamentary
control can be effectively exercised, thus laying on Table and Scrutiny Committees.
a. Laying on Table
The procedure of laying on the table is followed by most of the Commonwealth countries
whereas it serves two purposes;
 It informs the legislature as to what rules have been made by the executive authorities in
exercise of delegated legislative power
 It provides an opportunity to the legislators to question or challenge the rules already
made or proposed to be made.
The practice in Tanzania is where the parent Act may direct the making of subsidiary legislation
and sometimes the parent Act may require the subsidiary legislation to be laid before the national
Assembly. However the parent Act does not say what have to be done by the national Assembly
when the subsidiary legislation is laid before the Assembly, thus the National Assembly is
allowed to pass any motion as regard to the said subsidiary legislation. The effect is that the
instrument after being made it must be laid before the National Assembly and become effective
after being laid before the National Assembly. When the subsidiary legislation is laid before the
National Assembly the National Assembly will not amend the subsidiary legislation but it will go
on declaring it null and void if it finds it to be so. The Parliament does not amend subsidiary
legislation simply because it does not enact subsidiary legislation. Thus, the parliament may
either accept it or struck it out.
b. Scrutiny Committees
Subjecting the subsidiary legislation to parliamentary committee is of more importance than even
laying on the table, thus mere laying of rules before the Parliament would not be of much use,
unless the rules were properly studied and scrutinized. In England, the Select Committee on
Statutory Instruments was established by the House of Commons in 1944. The function of the
Committee is to scrutinize and report to the Parliament whether the powers to make regulations,
42 Lohia Machines Ltd v Union of India (1985) 2SCC 197
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rules, sub-rules, by-laws, etc., conferred by the Constitution or delegated by Parliament are being
properly exercised within such delegation.43
2. Judicial control
Delegated legislation is also subject to control through the Court. A piece of delegated legislation
can be deemed by the Court to be ultra vires. This means that the body that created the delegated
legislation acted beyond the powers conferred to them by statute. An example where a body
would have acted ultra vires would be if the delegated legislation goes beyond what Parliament
intended or where the procedural rules to be followed in relation to the delegated legislation have
not been followed. Any Court action which is brought challenging delegated legislation is done
through the means of Judicial Review. If the Court finds that a piece of delegated legislation is
ultra vires then that legislation can be declared void.
3. Procedural control:
Parliament lays down the procedure by which abuse of administrative power is controlled.
Procedural control mechanism has the potential to meet the above noted requirement by allowing
specific audit of rules by those for whose consumption they are made. Procedural control
mechanism operates in three components such as antenatal publicity, consultation, and postnatal
publicity.
On the other hand procedural control is deemed to be Procedural ultra vires. This happens when
a subordinate legislation fails to comply with certain procedural requirements prescribed by the
parent Act or by the general laws. The delegated legislative authority while making the delegated
legislation, the parent Act may require that the delegate to observe a prescribed procedure, such
as holding of consultations with particular bodies or interest, publication of draft rules or by-
laws, laying them before the Parliament, etc. therefore it is important on the delegate to comply
with these procedural requirements whereby failure may invalidate the rules framed.44
Categories of procedural requirements
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a. Publication
It means all due procedure which the law is made known of its existence to the public. It is an act
of declaring or announcing the existence of law to the public. There is fundamental principle of
law that ‘ignorance of law has no excuse’, but there is another equally established principle that
‘public must have access to the law and they should be given an opportunity to know the
law’.45 Wade46 said that ‘the very justification for the basic maxim is that the whole of our law,
written or unwritten, is accessible to the public – in the sense, of course, at any rate, its legal
advisers have access to it, at any moment, as of right.’ Thus all laws ought either to be known or
at least laid open to the knowledge of all the world in such a manner, that no one may with
impunity offend against them, under pretence of ignorance. 47 Thus the underlying object of
publication of delegated legislations as observed by M.P.Jain that ‘it is essential, therefore, that
adequate means are adopted to publicize delegated legislation so that people are not caught on
the wrong foot in ignorance of the rules applicable to them in a given situation. The system of
publication ought to be such that delegated legislation is not only made known to the people, but
it is also easy to locate as and when necessary’.48
In England, through the Rules Publication Act, 1893 certain provisions were made for the giving
of notice and inviting representations from interested public bodies. Moreover under the
Statutory Instruments Act, 1964, certain provisions were made with a view to ensure that the
public would be aware of the delegated legislation.
In Johnson v Sargant49, the impugned order was passed on May 16, but was published on may
17. The court held that the order could come into operation only on May 17.
45 Ibid
46 Administrative Law; 1994, p.890
47 Domat: Quoted by Ganguly: Administrative Legislation, 1968, p.74
48 Treatise on Administrative Law, 1996. Vol 1, p.150
49 (1918) 1 KB 101.
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In Tanzania, the practice of publication aspect is that the court would examine the parent Act if
gave direction for such subsidiary legislation to be published. If there is no express provision that
direct such publication, then the Interpretation Act [CAP.1.R.E.2002] come into play. Section
37 (1) (a)(b) provides that
Where a written law confers power to make subsidiary legislation, all subsidiary
legislation made under that power shall, unless the contrary intention appears–
(a) be published in the Gazette;
(b) subject to subsection (2) and to section 39, come into operation on
the day of publication, or where another day is specified or provided for in the
subsidiary legislation, on that day.
b. Consultation
The term consult implies a conference of two or more persons or an impact of two or more minds
in respect of a topic in order to enable them to evolve a correct, or at least satisfactory solution of
a problem. It is a process which requires meeting of minds between the parties to consultation on
material facts to come to a right conclusion.50
The rationale behind of using consultation technique is to safeguard against the misuse of power
vested to the executive on rule making by allowing the affected interests to participate.
Consultation is one of the ways of avoiding clashes between the department exercising
legislative power and the interested parties who are going to be affected by the said law.51the
process of consultation helps in a way that, the affected interests itself insofar as they have an
opportunity to impress on the authority their point of view; and the rule-making authority insofar
as it can gather necessary information regarding the issue involved and thus be in a better
position to appreciate a particular situation.52 However, it is important to note that consultation
51 Wade and Phillips: Constitutional Law.1960.p.584
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does not mean consent or concurrence, but it postulates full and effective deliberation, exchange
of mutual view points, and meeting of minds and examination of relative merits of the other
point of view.
In England, though there is no statutory provision requiring consultation of the affected interests
before the making of subordinate legislation, it is still considered mandatory. This practice is
well established the ‘Minister in his senses, with the fear of Parliament before his eyes would
ever think of making regulations without giving the persons who will be affected thereby or their
representatives an opportunity of saying what they think about the proposal’53
In the case of Rollo v Minister of Town and Country Planning 54, holding the consultation as
an important statutory obligation, Bucknill, L.J observed: “On one side the Minister must
supply sufficient information to the local authority to enable them to tender advice, and on the
other hand, a sufficient opportunity must be given to the local authority to tender that advice”
In Tanzania also, the requirement of consultation to the stake holders is of necessity in making
of subsidiary legislation. Thus, the parents Act may provide that the maker of by-law will have to
take account the views and objection of the people.
4. Substantive Control
Substantive control deals with the subordinate legislations which goes beyond the parent Act. On
other hand this is known as “substantive ultra vires” This is where subordinate legislation goes
beyond what the delegate is authorized to enact. This means that the delegated legislation goes
beyond the scope of the authority conferred on it by the parent statute or by the Constitution. It is
a trite of the law that a public authority cannot act outside the powers; i.e. ultra vires, and it has
been rightly described as the central principle and foundation of the large part of administrative
law55.
53 Sir W. Graham cited by Griffith: Delegated Legislation, Some Recent

Developments, (19490 12 Mod LR 297
54 (1948) 1 All ER 13 (17)
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Power delegated by statute is limited by its terms and subordinate to its objects. The delegate
must act in good faith, reasonably, intra vires the power granted and on relevant considerations.
All the the decisions of the administrative authority whether characterized as legislative,
administrative or quasi- judicial, must be in harmony with the Constitution and other laws of the
land. They must be reasonably related to the purposes of the enabling legislation, whereas if they
are manifestly unjust or oppressive or outrageous or directed to an unauthorized end or do not
tend in some degree to the accomplishment of the objects of delegation court might well say,
‘parliament never intended to give authority to make such rules; they are unreasonable and ultra
vires56’.
Circumstances upon which Delegated legislation can be held Ultra Vires
A delegated legislation may be held to be invalid on the ground of substantive ultra vires in the
following circumstances;
a) Where a Parent Act is unconstitutional
The basic requirement for the validity of delegated legislation is the status of the parent Act or
enabling statute by which legislative power is conferred on the executive authority must be valid
and constitutional. If the parent Act is held unconstitutional, then it renders the delegated
legislation also to be ultra vires. However, when the parent act is challenged on the ground that it
is unconstitutional or ultra vires the powers of the legislature which enacted it, the true nature
and character of the statute is required to be ascertained, whereas one has to regard to the
enactment as a whole, to its objects and the scope and effect of its provisions.57
In the case of Chintamanrao v State of M.P58, the parent Act authorized the Deputy
Commissioner to prohibit the manufacture of bidis in some areas during the certain periods. The
order passed by the Deputy Commissioner under the Act was held ultra vires inasmuch as the Act
56 Sitiram Sugar Mills v Union of India (1990) 3 SCC 223
58 AIR 1951 SC 188: 1950 SCR 759
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under which it was made violated the Fundamental Right to carry on any occupation, trade, or
business, guaranteed by Article 19(1) (g) of the Constitution of India.
b) Where delegated legislation is in consistent with the parent Act
The validity of the delegated legislation can be challenged on the ground that it is ultra vires the
parent act or enabling statute or any general law. It is an accepted principle that delegated
authority must be exercised strictly within the authority of the law and thus it can be held valid
only if it confirms exactly to the power granted.
In the case of U.S v Two Hundred of Barrels of Whisky 59, The parent Act provided for
admitting duty – free animals especially imported for breeding purposes. The regulation made
under the Act required the animals to be of a superior stock if they were to be admitted duty –
free. The court held the regulation ultra vires as the parent Act included all animals while the
regulation confined its operation to animals of a particular stock alone.
c) Where delegated legislation is unconstitutional
Sometimes a parent Act or delegating statute may be constitutional and valid and delegated
legislation may be also consistent with the parent act, yet the delegated legislation may be held
invalid on the ground that it contravenes the provisions of the Constitution. Thus as it has been
observed in various cases that every order made under a statutory provision must not only be
within the authority conferred by the statutory provision, but must also stand the test of
constitutionality.60
d) Unreasonableness
In England, it is well settled that the by-laws made by corporations, boroughs and other local
bodies may be declared as ultra vires on the ground of unreasonableness. The rule is based on the
presumed intention of the legislature that the common law allows them to make only reasonable
59 (1877) 95 US 571
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by-laws. This is an implied limitation on the exercise of powers by such authorities, and
therefore, if the power is not reasonably exercised, the action is bad in law.
In the case of Arlidge v Islington Corporation61, a by-law made by a corporation required the
landlord of a lodging house to cause the premises to be cleansed once a year, and penalty was
imposed for breach of the said by-law. The court held the by-law ultra vires as unreasonable, as
the premises might have been leased by the landlord and he might be unable to carry out the
work without committing trespass.
The principle of unreasonableness is also accepted in India as indicated in the case of Air india v
Nargesh Meerza62, a regulation framed by Air India providing for termination of services of an
air hostess on her first pregnancy was held to be extremely arbitrary, unreasonable, abhorrent to
the notion of a civilized society and interfering with the ordinary course of human nature. It is
‘not a disability but one of the natural consequences of marriage and is an immutable
characteristics of married life’.
e) Mala fide; bad faith
In England, it is well settled that an Act passed by the competent legislature cannot be questioned
in court on the ground that the same was passed mal fide or with improper motive. Thus, once it
is held that the legislature was competent to pass such an Act, and then it is valid. On the other
hand, there is also another principle that whenever the legislature confers any legislative power
on any administrative authority, the said power must be exercised in good faith by the latter and
on proof of bad faith the court can hold the exercise of power ultra vires.
In the case of R v Controller-General of Patents63, Clauson, J, observed; ‘ if, on reading the

order in Council making the regulation, it seems in fact that it did not appear to his Majesty to be
necessary or expedient for the relevant purposes to make the regulation, I agree that, on the face
of the order, it would be inoperative’
61 (1909) 2 KB 127
62 (1981) 4 SCC 335
63 (1941) 2 KB 306
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f) Sub – delegation
Delegatus non potest delegare. This is a Latin maxim which refers to the rule against sub-
delegation meaning that, a delegate is not competent to further sub-delegate’. However,
sometimes on account of the legislative supremacy of the parliament, an Act of Parliament may
expressly authorise sub-delegation. In that particular case sub-delegation may be done and it will
be lawfully. While sub-delegation as a general rule is unlawful the Parliament may reinforce this
principle by expressly prohibiting sub-delegation of legislative power
i) Sub – delegation of legislative power

Therefore there are some limitations and safeguards where the parent Act have
permitted sub – delegation.
 If the parent Act permits sub – delegation to officers or authorities not below a
particular rank, then the power can be delegated only to those officers or
authorities.
 The sub – delegate cannot act beyond the power conferred on him by the delegate.
 If some conditions are imposed by the delegate which must be complied with by
the sub – delegate before the exercise of power, those conditions must be fulfilled;
otherwise exercise of power will be ultra vires.
ii) Sub – delegation of judicial power
It is well established in various jurisdictions that judicial or quasi – judicial power conferred on a
particular authority by statute must be exercised by that authority and cannot be delegated to any
one unless such delegation is authorized by a statute either expressly or impliedly. The maxim
‘delegatus non potest delegare’ is applied with utmost rigour to proceedings of the ordinary
courts, and in the entire process of adjudication a judge must act personally, except insofar as he
is expressly absolved from his duty by statute, whereas only in very exceptional circumstances
may judicial functions be sub – delegated in the absence of express authorization.64
In the case of Morgan (I) v U.S65, the Supreme Court of America held that the duty to
decide cannot be performed by one who has not considered evidence or arguments. It is
64 De Smith: judicial Review of administrative Action, 1995
65 (1936) 298 US 468
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not an impersonal obligation. It is a kin to that of a judge. The one who decides must
hear.
g) Exclusion of judicial review
There have been tendency of legislators to allow the delegate legislation to be free from judicial
review by enacting ouster clauses, such as ‘shall have effect as if enacted in the Act’ , ‘shall be
conclusive evidence’, ‘shall not be called in question in any court’, ‘shall not be called in
question in any legal proceedings whatsoever’ and the like. However in many jurisdictions this
contention have been challenged by the courts of laws thus judicial review is important way in
safeguarding and controlling the powers of administrative authorities.
h) Retrospective effect
It is well settled that delegated legislation cannot have any retrospective effect unless such a
power is conferred on the rule - making authority by the parent Act. The legislature can always
legislate prospectively as well as retrospectively subject to the provisions of the Constitution.
Though the legislature is allowed to enact laws which have retrospective effect, such power is
limited in procedural laws only and not substantive laws which creates rights and liabilities.
Refer Article 13(6)(c) of United Republic of Tanzania Constitution of 1977 as amended.
Effect of substantive ultra vires act:
An action which is ultra vires is without jurisdiction, null and void, and of no legal effect
whatsoever. Therefore once the court has declared that some administrative act is legally a
nullity, the situation is as if nothing had happened, thus there is no question of estoppels against
an ultra vires act66.
In the case of Kanji v Tanga Township Council 1940 Vol.1 TLR The accused owned a house
which was situated at the corner of Akida and No. 6 Street in the Township of Tanga. On the 12 th
June 1939 some old papers were found in the street outside his house. He pleaded not guilty to a
charge under rule 25 of the Township rules made under S.3 of township Ordinance (Cap.29)
which said
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“No person shall know or deposit…. In or upon any street…dust refuse…or noxious matter. Any
such accumulation being immediately in front of any house shall be prima facie evidence that the
same has been thrown there or deposited by the occupier of such house”
The accused was convicted on such rule, however on appeal the conviction was quashed and set
aside whereas the statute was declared unreasonable and ultra vires as it abrogated the
presumption of innocence by declaring a person guilty.
In R v Wood The parent Act authorized the making of the by-laws requiring the residents to
remove; dust, dung, ashes, filth garbage’s from the pavement. A by – law was made requiring the
residents to remove filth, rubbish, manure, dung and also it included removal of snow which was
not provided in the parent Act. The by-law was said to be invalid.
In Sheikh Mohamed nassoro Abdallah v Dar es Salaam RPC [1995] TLR The case
concerned a deportation order signed by the president ordering deportation of the plaintiff in
Zanzibar. While in the process if being deported, he was detained and he filled the matter before
the court. The court on looking on the Deportation Ordinance saw that it provided only
deportation within Tanganyika (Tanzania Mainland). Therefore deportation to Zanzibar was said
to be ultra vires. The amendment of Deportation Ordinance was made in 1995 to involve the
whole part of Tanzania including Tanzania Zanzibar.
In R v Kimani There was a parent Act which provided for punishment which could be provided
by the by-law and punishment was to be fines and imprisonment. The by-law formed said that
there shall be fine or imprisonment or both and also said that any native convicted under the by-
law on fine and imprisonment and if a person who fail to comply with order to return to his
native place was to be imprisoned for other 3 months. The court held that the by-law was ultra
vires.
In R v Juma Mwalimu The parent Act gave power to the Governor to make laws relating to
payment of poll taxes and hut taxes by the natives. The Governor was given power to make the
rules on duties and responsibilities of the Chiefs and headmen. It went further to make rules on
every individual to provide information for truthfully collection of taxes and ascertainment of
where about of tax payers. The court found that the rule was ultra vires.
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In R v Mabula Mihambo [1984] TLR 89 The accused person stood before District Court,
charged under the provision of S.20 and 25 and 26 of the Regulations of Prices Act, 1973. The
charge that provocated , and hence the revision was strangely worded as follows.. the Bunda
District Assistant Price Commissioner was empowered to fix price under empowering provisions
of S.79 and 10 of the Regulation of Prices Act, 1973. Accused pleaded guilty and convicted. The
charge read as follows… selling fish exceeding aggregated maximum price contrary to S.20 and
26 of the Price Regulation Act, No 19 of 1973. The issue before revision was whether the charge
disclosed any offence. Considering the word ‘aggregated price’ the Judge failed to understand
what was meant by it. The Judge went further to say that the Commissioner was empowered to
fix maximum price for sell of goods…S.8(1) of the enabling Act and not aggregated prices,
because of the difference he said that no offence was committed. Moreover, the court considered
price list as follows; Ngege (a)Mkubwa (Kigoma)sh.15.00 (b) Kawaida.sh10.00
(c)Mdogo.sh.5.00
Held: because the size of the fish in question was ambiguous and there was no offence created
as aggregated price. The court quashed the conviction.
6.9 Criticisms of delegated legislation

Firstly, it has been suggested that by having delegated legislation to make and/or amend laws etc
it lacks democracy as too much delegated legislation is made by unelected people.
Secondly, delegated legislation is subject to less Parliamentary scrutiny than primary legislation.
Parliament therefore has a lack of control over delegated legislation and this can lead to
inconsistencies in laws. In addition, delegated legislation therefore has the potential to be used in
ways which Parliament had not anticipated when it conferred the power through the Act of
Parliament.
Thirdly delegated legislation is the lack of publicity surrounding it. When law is made by
statutory instrument the public are not normally notified of it whereas with Acts of Parliament,
on the other hand, they are widely publicized. One reason for the lack of publicity surrounding
delegated legislation is because of the volume of delegated legislation made and this result in the
public not being informed of the changes to law. There has also been concern expressed that too
much law is made through delegated legislation.
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6.10 Justification of delegated legislation

The intricacies of law making are usually complicated and the principle legislation enacted by
Parliaments cannot cover all aspects of the social problems that the laws seek to address.
Consequently, Parliaments, as noted above, are allowed to delegate their law-making powers to
other persons or authorities in accordance with the law. Some events that need to be addressed
immediately by legislation happen so spontaneously and could not have reasonably been
foreseen by Parliament. Under normal circumstances it would not be easy to convene Parliament
hurriedly to pass a law to address such an event. In fact, laws enacted by Parliament are often
relatively general in scope and coverage, leaving the details to be covered by subsidiary
legislation. For example, it would be difficult for Parliament to make Delegated legislation for
effective and meaningful conservation and protection of forests in every village in Tanzania!
6.11 Main legislation governing delegated legislation

Further to the Constitutional provisions permitting Parliament to delegate its law making
function, Parliament has often promulgated principle laws to govern or regulate the making of
Delegated legislation. Usually, principal legislation provides for the making of subsidiary
legislation by the Minister. Aside from the Constitution, other main legislation that govern the
Delegated legislation process by local government authorities (Cities and District Councils,
townships, municipalities and villages) generally are the following:
 The Interpretation of Laws Act, Cap. 1 R.E. 2002;

 The Local Government (District Authorities) Act, Cap. 287, R.E. 2002; and
 The Local Government (Urban Authorities) Act, Cap. 288 R.E.2002
6.12 Prerequisites for delegated legislation

There are some fundamental matters that have to be taken into account in the process of making
Delegated legislation in order for them to have force of law. The main ones may be summarized
as follows:
a. Requirement of Publication
In order to facilitate consultation and participation of the target groups, the Local Government
(District Authorities) Act provides that proposals of Delegated legislation be made public. The
Interpretation of Laws Act also lays emphasis on the requirement of publication. It makes the
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publication of Delegated legislation in the Government Gazette mandatory unless the contrary
intention appears in the principle legislation under which that delegated legislationwas made.
Publication of draft village Delegated legislations to be effected in an open place that people
usually frequent before they come into operation. This could be at the market place, local
government (village leader’s) offices and places of worship. The intention of publicizing these is
to provide an opportunity for people to air their views on the by-laws, avoid conflicts and
facilitate a smooth implementation and enforcement mechanism.
b. Parliamentary Control
The Interpretation of Laws Act makes it mandatory to submit Delegated legislation (regulations)
made by a Minister, District, Municipality or Township to Parliament for approval following
publication in the government Gazette. When such a delegated legislation is submitted to
Parliament for approval, three things are likely to happen to it. The delegated legislation may be
left intact, amended or annulled altogether.
Where the delegated legislation is annulled, it ceases to have effect but transactions made prior to
it being annulled will be legal. Village Delegated legislation come into operation after being
approved by the District. These are not laid before Parliament.
c. Retrospective Operation
A retrospective law is that which is enacted to make illegal a transaction or dealing that had
taken place before its coming into force or to legalize such transaction or delay. Section 37 (2) of
the Interpretation of Laws Act provides that no delegated legislation shall have retrospective
operation.
Authorities may, however, appoint different days for the coming into force of different parts or
provisions of the by-laws.
d. Enforcement
The Interpretation of Laws Act states that Delegated legislation may provide for offences and
prescribe fines. However, these must be specific and provide for maximum or minimum
amounts. The Interpretation of Laws Act places a limitation on the amount of fine for Delegated
legislation made by District authorities. It provides that such fines should not exceed Six
Hundred Thousand Shillings (Tshs. 600,000:00). Again the total value of the forest produce
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illegal obtained may exceed this amount, rendering the Delegated legislation in effective. A
different mechanism could be devised to get the value of the forest product first in each case of
transgression of the delegated legislation and then determine the amount of fine to impose.
e. Judicial Control
The principle legislation emanating from Parliament, giving power to authorities to make bylaws
usually sets out limits within which the power is to be exercised. Where an authority makes a
delegated legislation in violation of the power vested in it by the principal law, such delegated
legislation could be challenged in a court of law on the basis of non-compliance with the
principal law. A number of court decisions have declared Delegated legislation illegal on the
basis of not complying with the directives provided for by the principal laws.
Besides making reference to principal legislation in determining the validity of by-laws, courts
have also developed a number of principles to ascertain their legitimacy. Accordingly, courts are
likely to declare illegal those Delegated legislation that do not conform to or fail the tests of the
principles of fairness, reasonableness, clarity, definiteness or where they are ambiguous.
**Delegatus non potest delegare (delegated powers cannot be delegated any further) v/s
delegated legislation
TOPIC SEVEN
7.0 ADMINISTRATIVE TRIBUNALS
There is no universally accepted definition of the term Administrative Tribunals or simply
'tribunal' as per professor Jain. However, jurists, academicians, and administrators (politicians)
have made several attempts to explain the same. Administrative Tribunal/Tribunal may be
referred to as a person or body of persons or administrative agency not forming part of the
Judiciary with limited statutory powers to determine disputes and pass binding decisions between
individuals, or individuals and officers in the Department of the government.
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Tribunals have been defined as “Bodies outside the hierarchy of the courts with administrative or
judicial functions”. Administrative tribunals resolve disputes between, for example, the citizen
and an officer of a government agency or between individuals in an area of law.67
Tribunals are specialist judicial bodies which decide disputes in a particular area of law.
Most tribunal jurisdictions are part of a structure created by the Courts and Enforcement Act
2007. ... They hear about a million cases each year, more than any other part of the justice
system.
7.1 Reasons for growth of administrative tribunals

Legal scholars and policy-makers justify the existence of administrative tribunals by advancing
the following reasons:-
Ordinary courts are very slow, costly (e.g. court and advocate fees), complex and formalistic in
solving disputes. For examples a case may be pending in a court of law for two (2) to five (5)
years. Thus, administrative tribunal emerged to ensure speedy dispensation of justice in vital
areas of the economy. Note: Justice delayed is justice denied.
7.2 Types and examples of administrative tribunals in Tanzania

Administrative tribunals are classified into two (2) major components, i.e. statutory authority,
and statutory tribunal.
a. Statutory Authority:
This refers to individual holders of public offices who have statutory powers to hear disputes (in
original or appellate jurisdiction/capacity). For example, labour officers and Minister for Labour
in certain circumstances have statutory powers to entertain and make decisions on labour
disputes between an employer and employee/s. **A 'single' person exercises judicial powers.
b. Statutory Tribunals:
These are adjudicative body or agency established by specific Acts of Parliament. Usually, the
establishing statute will provides for composition (i.e. appointing authority, qualifications and
etc), membership tenure, quorum, procedures and etc. **A 'group' of persons exercises judicial
powers. Examples; Military Tribunal (Court Martial), The Tax Revenue Appeals Board, The
67 Curzon, Dictionary of. Law, 1994, p387
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Environmental Appeals Tribunal, The Fair Competition Tribunal, The District Land and Housing
Tribunal, The Ward Tribunal and etc.
7.3 Legal basis of administrative tribunals in Tanzania

The Constitution of Tanzania (supra) is silent as to the delegation of judicial powers to other
organs of the state. However, by implication (not expressly provided) Article 13(6)(a) of
the Constitution of Tanzania and Article 12(6)(a) of the Constitution of Zanzibar (supra)
recognize tribunals. The said Articles require "the Court" and "other agency" to take into account
the principle of fair hearing in deciding disputes. Thus, one may argue that the term, "other
agency" refers to administrative tribunals. All in all, it should be noted that administrative
tribunals originates from respective Acts of the Parliament.
7.4 Administrative tribunal’s similarities and distinction from ordinary court

(a) Similarities:
 Both are adjudicative machineries (i.e. invested with judicial powers).
 Both are governed by Acts of Parliaments.
 Both have permanent existence.
(b) Differences:
 All courts are tribunals but not all tribunals are courts.
 Courts are part and parcel of the judiciary while tribunals are considered part of the
executive (i.e. they have hybrid functions).
 Essentially, Courts have unlimited powers to adjudicate, but tribunals have limited
adjudicative powers.
 Courts handle disputes objectively, while tribunals deal with disputes subjectively.
 Courts can decide the 'vires' (constitutionality/legality/fairness) of a legislation/law, but

tribunals cannot do so.
 Courts are presided over by officers trained in law, while most of tribunals are chaired
and composed of laymen.
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7.5 Administrative tribunal distinguished from executive authority

a) An administrative tribunal is not an executive body or administrative department of the
government. They are administrative only because they are part of an administrative
scheme for which a minister is responsible to Parliament, and because the reasons for
preferring them to the ordinary courts are administrative reasons68
b) The functions entrusted to and the powers conferred on an administrative tribunal are
quasi – judicial and not purely administrative in nature.
c) An administrative tribunal cannot delegate its quasi – judicial functions to any other
officer
d) It cannot give its decision without giving an opportunity of being heard to the parties or
without observing the principles of natural justice
e) It is bound to act judicially, thus record findings of the facts, apply legal rules to them
correctly and give its decisions.
f) The prerogative writs of certiorari and prohibition are available against the decisions of
an administrative tribunals.
7.6 Characteristics of tribunals

a. Administrative tribunals are constituted by Acts of the Parliament (and not by
Government) i.e. tribunals are statutory creatures'
b. Decisions of administrative tribunals are judicial rather than administrative. Tribunals
decide on legal issues, in so doing, they confer or restrain rights to individuals.
c. Administrative tribunals do not deal with cases in which a government is a party. They
adjudicate disputes between businessmen, employer/employee, landlord/tenant, and etc.
d. Administrative tribunals are not bound by strict rules of procedures, evidences and other
legal technicalities.
e. They have judicial powers (e.g. to summon witnesses, pass legally enforceable decisions
and etc).
7.7 Advantages administrative tribunals

Administrative tribunals ensures effective implementation of socio-economic policies and
schemes found in the statute.
68 Wade: Administrative Law. 1994, p.909
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Use of administrative tribunals avoids floodgate of cases in courts of law (i.e. reduce court's
workload/congestion of cases in courts of law).
Administrative tribunals are better placed to take preventive measures, e.g. suspension,
cancellation or revocation of a license, destruction of contaminated articles, taking care of
perishable goods and etc.
Administrative tribunals have required expertise, specialty, and experience in their filed of
operations, e.g. Doctors disciplinary bodies/tribunals. Disputes are dealt with persons with an
intimate knowledge and experience of the problems involved.
They avoid legal technicalities/legalistic approach over disputes. Courts are very conservative,
rigid and technical, e.g. precedent, stare decisis, rules of procedures, evidences, pleadings (use of
legalese and legal documents and etc. They are characterized by an informal atmosphere and
procedure.
7.8 Disadvantages of administrative tribunals

Main challengers of the use of administrative tribunals are professor Dicey (rule of law),
and Montesquieu (separation of powers). Speedy resolution of cases by tribunals may lead to
injustices. Note: Justice hurried is justice buried.
Administrative tribunals have wide discretion thus making their decisions uncertain or
unpredictable.
The right to appeal is not always guaranteed. Normally, statutes establishing administrative have
phrases such as, "the decision shall be final and conclusive", "the decision shall not be
appealable", "the decision shall not be subjected to judicial review", and etc. Such kinds of
provisions have come to be known as "ouster clauses", "finality clauses", "protective clauses" or
"preclusive clauses".
They are not always independent of the government influences. For example, Officers of the
Ministry may form part of the panel/quorum, and usually members of the tribunals are
appointees of the President or Minister.
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In practice, administrative tribunals violates rules of natural justice i.e. they pass decisions
without; giving reasons, hearing all parties, or adjudicates in matters that they have interest, or
abdicate/sub-delegate their judicial powers to other agencies or person/s.
TOPIC EIGHT
8.0 PRINCIPLES OF NATURAL JUSTICE
The term Principles of Natural Justice‖ (PNJ), derived from the expression Jus Natural” of the
Roman law. It also refers to the rules of fairness in decision making. Refers to the doctrine that
protects citizen against arbitrary exercise of power. This doctrine is based on two Major/
fundamental rules which are Audi alteram partem and Nemo judex in causa sua
a. The rule against bias.( Nemo Judex In Causa sua)
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This is known as the rule against bias, that is, no man should a judge of his own cause. It rests on
the grounds that justice should not only be done, but manifestly and undoubtedly be seen to be
done. In brief we can say
 That, no man shall be a judge of his own cause69

 That, justice should not only be done, but manifestly and undoubtedly be seen to be
done70
 That, judges like Caesar’s wife should be above suspicion71
The judge should be impartial and neutral and must be free from bias. The judge is supposed to
be indifferent to the parties to the controversy. He should not be an interested party to the
dispute. He must be in a position to act judicially and to decide the matter objectively. Rule
against bias can be categorized into,
(i) Personal Bias;

There are number of circumstances which may give rise to personal bias, such as a judge may be
a relative, friend or business associate of a party or he may have personal grudge, enmity or
grievance or professional rivalry against one of the party. Therefore, there is every likelihood the
judge may be biased toward one party or prejudiced towards the other.72 In this respect it is
important to show that a real likelihood of bias exists. This is because justice should not only be
done, but should manifestly and undoubtedly be seen to be done. This was emphasized by Lord
Hewert in the case of R v Sussex Justices ex parte McCarthy.73However it is important to
ensure that this does not lead to the wrong impression that it is more important that justice should
69 Lord Coke in Egerton v Lord Derby (1613) 12 Co. Rep 11
70 Lord Hewert in R v Sussex Justices (1924) 1KB 256
71 Justice Bowen in Lesson v General Council (1889) 43 Ch D 366
72 Ibid
73 (1924) 1KB 256
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appear to be done than it should in fact be done. Therefore, what is vital and central in this
situation is that the judge should not hear the evidence of one side behind the back of the other.74
In the case of Mwangi v Tusker75, the appellant submitted a tender for a business and was
awarded. Later it turned out that the firm which was given a tender was not the one which
tendered the lowest bid i.e.it is not a must to accept the lowest bidder. But it was found that two
tender board members were the owners of some interest in the firm. It was held that the award of
tender was not proper as the members were part to the firm.
(ii) Pecuniary Bias ;

It is well-settled that as regards pecuniary interest as in the case of R v Farrant76 by Stephen J
that ‘the least pecuniary interest in the subject-matter of the litigation will disqualify any person
from acting as a Judge’. Pecuniary interest, however slight, will disqualify, even though it is not
proved that the decision is in any way affected77’
(iii) Official/Departmental Bias;

This may arise when the judge has a general interest in the subject-matter. However, only rarely
this bias would invalidate the proceedings.78 A mere general interest in the general object to be
pursued would not disqualify a judge from deciding the matter; there must be some direct
connection with the litigation. Ministerial or departmental policy cannot be regarded as a
disqualifying bias. Suppose a Minister is empowered to frame a scheme after hearing the
objections, the procedure for hearing the objections is subject to the principles of natural justice
insofar as they require a fair hearing, but the Minister decision cannot be impugned on the
ground that he has advocated the scheme or he is known to support it as a matter of policy.79
74 C.P. Maina, p.427
75 [1971] E.A 385
76 [1887] 20 Q.B. 58
77 Griffith and Street: Principles of Administrative Law, 4 th Edition, p.156
78 Griffith and Street: Principles of Administrative Law, 4 th Edition, p.156
79 Wade: Administrative Law, 1994, pp.488-491
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Other Cases on bias on rule against bias includes
Ndegwa v Nairobi Liquor Licencing Court80 The president of that court (tribunal) and two
other members visited and investigated the premises of Ndegwa and they were not impressed
with the situation. Therefore, they made a motion that the licence be cancelled. During hearing
also they gave evidence that the place was suitable, thus decision was made against Ndegwa and
he appealed to the High Court. It was held that the two members constituted prosecutors,
witnesses and judges, it was said it amount to bias thus the decision was invalid.
R v Bancley Metropolitan Borough Council. Mr. Hook was a pet trader in Bancley market.
One day after market time while people were cleaning the market, Mr. Hook while going away
he urinated in the premises of market and the market manager saw him and warned him but he
did not obey. The manager reported him to the market Disciplinary Committee where he was
called and subsequently his licence cancelled. He appealed to the High Court on the ground that
the Committee was biased as the market Manager was sitting with the Committee while
deliberating on the decision. Although the manger did not say anything, but the court went on
saying that it was sufficient to invalidate the decision.
R v Kent Police Authority exparte Golden The police officer, Golden who went to see a
Doctor, the Doctor reported that golden had a mental disorder making him unfit to work as a
police officer. After getting the information the Police Authority decided to take some measures
for terminating Golden. The police registration rules provided that for a person to be compulsory
terminated a person has to be bought before the Doctor who will make appropriate certification.
But the former report was not in the form of certification. The Authority took the form and gave
it to golden so that he can submit it to the same Doctor, whereby Golden rejected that the Doctor
would be bias. Golden appealed to the Court where it was held that the Doctor would be bias
hence Golden would have been referred to other Doctor.
b. Audi alteram partem( Rule of fair hearing)

This principle of natural justice means hear the other side or no man should be condemned
unheard or both the sides must be heard before passing any order. This is necessary for providing
80 Oluyede, p.100
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a fair hearing and no doubt the rule against bias would also be a part of the procedure. Article
13(6)(a) of the constitution of URT provide 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;
A corollary has been deduced from the above two rules and particularly the audi alteram partem
rule, namely ‗qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum
facerit‘ that is, he who shall decide anything without the other side having been heard, although
he may have said what is right, will not have been what is right‘ or in other words, as it is now
expressed, justice should not only be done but should manifestly be seen to be done‘.
The classic exposition of Sir Edward Coke of natural justice requires to vacate, interrogate and
adjudicate‖. In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER
414], the principle was thus stated: Even God did not pass a sentence upon Adam, before he
was called upon to make his defense. “Adam” says God, “where art thou? Hast thou not eaten
of the tree whereof I commanded thee that thou shouldest not eat.
This principle is of the great importance that a man should not be curtailed his freedom or liberty
without being afforded an opportunity to be heard. In R v Camborne Justices [1955] 1 QB 41 it
was stated that a man party is not to suffer in person or in purse without an opportunity of being
heard.
There are almost two major requirements in this rule. These are
- Notice
- Hearing
a. Notice
Before any action is taken, the affected party must be given a notice to show cause against the
proposed action and seek his explanation. It is a sine quo non of the right of fair hearing81. The
person should be adequately briefed of the case facing him, this is important for the purposes of
arming the accused properly as he can only effectively controvert that which he is aware of.
Also, he can only conduct a meaningful cross-examination of witnesses deposing against him if
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he has access to everything against him82. Therefore, any order passed without giving notice is
against the principles of natural justice and is void abinitio.
b. Hearing
This is the second limb of the principle of right to be heard, whereby the person should be given
the right to face his accusers. Therefore, tribunal trying to ascertain facts in a matter before it and
it can obtain information in any way it thinks best, always giving a fair opportunity to those who
are parties in the controversy for correcting or contradicting any relevant statement prejudicial in
their view83. Also in the case of Local Government Board v Arlige84, Lord Haldane stated that
‘those whose duty is to decide… must act judicially, they must deal with the question referred to
them without bias, and they must give each of the parties the opportunity of adequately
presenting the case made…the decision must be…in the spirit and with the sense of
responsibility of a tribunal whose duty is to mete out justice’.
However, it should be noted that the right to be heard does not necessarily mean that there must
be an oral or personal hearing; the hearing can be also in the form of representation and through
writing. Moreover, the right of representation by a lawyer is not considered to be part of natural
justice and it can not be claimed as a right. However the practice direct that if a person is willing
to be represented and afford such representation he should not be denied such right as observed
by C.K. Allen that ‘experience has taught me that to deny persons who are unable to express
themselves the services of a competent spokesman is a very mistaken kindness 85’. Also in the
case of Pett v Greyhound Racing Assn (I), Lord Denning observed that ‘when a man’s
82 C.P.Maina, p.428
83 Lord Loreburn in Board of Educaton v Rice and Others [1911] A.C.179
84 [1915] A.C.120
85 C.K.Allen: Administrative Jurisdiction, 1956, p.79
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reputation or livelihood is at stake, he not only has a right to speak by hi own mouth. He has also
a right to speak by a counsel or solicitor86… even a prisoner can have his friend87’.
Other right to fair hearing includes:
(i) Right to know adverse evidence;

(ii) Right to present case;
(iii) Right to rebut evidence;
(iv) Right legal representation;
(v) Right to reasoned decision, etc.
c. Reason for decision (Nullum Arbitrium sine rationibus)

That is the right to be given reasons for the decision made. This principle arises on the rationale
that recording reasons for the decision reached introduces clarity and excludes arbitrariness and
satisfies the party concerned whom the order is passed.
The position has been that although administrative functions can be far different from judicial
functions yet the duty to give reasons for the decision made is one of the fundamentals of good
administration.
It is not enough to have a tribunal which is not biased and for the person whose rights or
legitimate expectations may be affected by the decision of that tribunal to be afforded
opportunity to controvert adverse testimony against him, thus it is now established that the
tribunal has a duty to furnish the accused with the reasons for the decision reached 88. The object
of providing reasons for decision as observed by Flick that ‘reasons are valuable check on
both the exercise of formal and informal decision-making. They provide the means whereby a
party is appraise of why a decision has been made and they provide some guidance to those
who have to advise the public as to the attitudes of the administration’ 89. Therefore, the right of
86
87 (1968) 2 All ER 545
89 Flick, Geofrey, Natural Justice: Principles and Practical Application, p.111
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the accused to know the result of the inquiry and the reasons for the decision has now become
the third principle of the rules of natural justice.
The position in England as regard to right to know reason for decision there is no general rule of
English law that reasons must be given for administrative or even judicial decisions 90. However,
Lord Denning once said that in the case of Breen v Amalgamated Engg. Union91 ‘the giving of
reasons is one of the fundamentals of good administration’. Thus, the condition to record reasons
introduces clarity and excludes arbitrariness and satisfies the party concerned against whom the
order is passed92.
This third limb of rules of natural justice is a new development of administrative law, whereby
the old view was that once the tribunal has met the two main requirements of natural justice then
it had no duty to give the reasons for its decision. It was said that to insist that administrative
adjudication should be accompanied by a formulation of reasons is to require of the
administrative process a higher standard than the demanded of the courts of law 93. However the
new position seems to have begun with the dissenting judgment of Lord Denning, M.R. in Breen
v Amalgamated Engg Union where he said that, ‘reasons must be given whenever it is fair to
do so. Not always, but sometimes. It all depends on what is fair in the circumstance’.
Also in the case of R v Immigration Appeals tribunal ex parte Khan (Mahmud) 94, Lord
Lane, C.J indicated that ‘a party appearing before a tribunal is entitled to know…what is to
which the tribunal is addressing its mind…second, the appellant is entitled to know the basis of
fact of which the conclusion has been reached…’
90 De Smith: Judicial Review of Administrative Action, 1995, p.380
91 (1971) 1 All ER 1148
93 Flick, Geofrey, Natural Justice: Principles and Practical Application, p.86
94 [1983] All E.R 420
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8.1 The concept of Natural Justice in Tanzania

The legal basis of natural justice is stipulated under article 12 of the Constitution of the United
Republic of Tanzania of 1977 to mean equality of human being where the provision state that all
human being are born free and are all equal.
Formally, the rules of natural justice were introduced in the Constitution of United Republic of
Tanzania through the Bill of Rights of 1984. Article 13 (6) (a) of Constitution provides that;
`For the purposes of ensuring equality before the law, the State shall make provisions to the
effect that, When the rights and duties of any person are being determined by the court of law
or any other body, such a person shall have the right to be fairly heard and shall have the
right to appeal against the decision of the court of such other body`
However, even before the incorporation of the Bill of the Rights into the Constitution the courts
of law had developed a tradition of applying these rules as done elsewhere under the common
law system and particularly through case law95. The following cases are examples which
demonstrated the application of rules of natural justice in determination of cases by the High
Court, Court of Appeal of East Africa and the Court of Appeal of Tanzania.
Hypolito Cassiano De Souza v Chairman and Members of the Tanga Town Council96
Appellant was employed by Tanga Town Council as a fire master. The allegation against De
Souza was that an employee was seen at his premises appearing as if he was assigned to work for
the fire master contrary to the work of the Town. The two Councillors reported the matter to the
Committee. At a hearing before the Finance Committee, the appellant and his Advocate were
kept out for some time while the Committee held private discussions with the two complainants
who were present, although they were not members of the Committee. The nature of discussion
held was never disclosed to the appellant and Advocate. Also when the hearing commenced
appellant and his Advocate were not provided with the particulars of the charges against him.
The Committee recommended that the appellant be dismissed from work. The appellant appealed
to the High Court for writs of certiorari and mandamus for the decision of the Committee be
quashed as against principles of natural justice. The High Court rejected the appeal on the ground
96 (1961) E.A 377
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that the quasi-judicial bodies have no duty to observe the principles of natural justice. The
appellant appealed to the East African Court of Appeal, whereby the court directed that the writ
of certiorari be granted to bring up and quash the decision of the appeals committee and the
decision of the Council dismissing the appellant. In addition, the court directed that mandamus
be granted addressed to the Chairman and members of the Tanga Town council to cause to be
heard and determined the complaint against the appellant in accordance with the provisions of
the Staff Regulations and the principles of natural justice. Giving guidance on the application of
the rules of natural justice, the court indicated that;
(i) The person accused must know the nature of accusation made against him
(ii) A fair opportunity must be given to those who are parties to the controversy to
contradict any statement prejudicial to their view, and to make any relevant statement
they may desire to bring forward; and
(iii) The tribunal should see that a matter which has come into existence for the purposes
of proceedings is made available to both sides and, once the proceedings have started,
if the tribunal receives a communication for one party or from a third party, it should
give the other party any opportunity of commenting on it.
Re an Application by Bukoba Gymkhana Club97
A Liquor Licensing Board refused to renew the applicant’s liquoir licence on the ground that its
constitution was ‘still largerly discriminatory’, in that a new member had to be proposed by a
member and seconded by a member. The Club had had its liquor licence renewed for the
previous thirty – four years; the Club was not present at the Board’s meeting which rejected the
Club’s application; and no recent changes had been made to its rules. The law granting the power
to the Board stated that the Board could “ in its discretion grant or refuse such application”. The
Club then applied for orders of certiorari and mandamus. Granting the application Reid J held
that ‘the Board being a body of persons having legal authority to determine questions affecting
the rights of subjects it has the duty to act judicially and that no opportunity was given to the
licence applicants to present their case or to meet the Board’s objections…I do find that to reject
the licence application for the reason which it gave, and in the way that it did was clearly
unreasonable’.
97 [1963] E.A 478 (Tanganyika)
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In Mahona v University of Dar es Salaam98 The applicant in this case was terminated from the
employment by the defendant on disciplinary grounds. He appealed to the Labour Concilliation
Board and was successful. The defendant appealled to the Minister for Labour. The applicant
was not supplied with a copy of the memorandum of appeal submitted by the defendant nor was
he given the opportunity to be heard by the Minister before making the decision. The Minister
reversed the decision of the Labour Concilliation Board and ordered the applicant to be paid his
terminal benefits. The applicant went to the High Court challenging his termination and seeking
a declaration that his termination was invalid as the procedure laid down under both the
University of Dar es Salaam Act, No.12 of 1970 and the Security of Employment Act, 1964 were
not followed. Agreeing with the applicant, Kisanga, J. held that there was breach of the rules of
natural justice as the ground of appeal by the deffendant were not made known to the plaintiff by
the Minister and the same Minister proceeded to determine the appeal without hearing the
applicant. The judge underlined the importance of the rules of natural justice and indicated that
non adherance of the rules renders the decision made null and void.
Moreover, the courts of law have gone further to introduce the third limb in the rules of natural
justice. That is the right of the affected person to be given the reasons for the decision made or in
other words, the duty of decision maker to provide reasons or grounds for his decision99.
In James F. Gwagilo v AG100 This case was on alleged powers of the President of the United
Republic of Tanzania to retire civil servants in ‘public interest’. It was inter alia, held that by
Mwalusanya, J. the President had a duty to give reasons for this decision and he can not act
arbitrarily. Also this view was taken by Samatta, J.K. in Said Juma Muslim Shekimweri v AG 101
where again the President purpoted to retire an Immigration Officer in public interest without
giving any reasons. Distinguishing the common law authorities which held that civil servants
98 [1981] T.L.R.55
100 High Court of Tanzania at Dodoma, Civil Case No.23 of 1993 (Unreported)
101 High Court of tanzania at Dar es Salaam, Miscellaneous Civil Cause No.3 of
1996 (Unreported)
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could be dismissed at the pleasure of the Crown. His Lordship held that was not part of the law
of this country. When a civil servant is dismissed cause must be assigned.
8.2 Exclusion of Natural Justice

Though the rules of natural justice have now a definite meaning and connotation in law, and their
content and implications are well-understood and firmly established, they are nonetheless not
statutory rules. Therefore, there are situations which demand the exclusion of the rules of natural
justice by reason of diverse factors like, time, place, the apprehended danger and so on 102. Thus,
the following are the circumstances upon which the rules of natural justice cannot be applied;
a. Statutory disapplication
This happens only when there is a procedure stipulated in a Statute on dealing with a certain
case, thus the rules of natural justice do not apply but the statutory procedures have to be
followed.
Franklin v The Minister for Town & Country Planning 103 In this case the Minister followed
the procedure in the Town Act which required, whereas he was required to receive objections of
the people affected by the designation of the town. He sent the proposal and objections were sent
back by the people. The people challenged his decision on the ground of bias as in his previous
meeting he said that he will do anything to make sure that the town is designated, and thus they
alleged that he did not consider the objections with an open mind. The Court dismissed the
application as the Minister had already followed the procedure.
b. Legislative process
The Parliament and Administrative Authorities makes laws, but these bodies are not required to
make consultation unless the law provides for that effect. For instance the making of laws to be
applicable in Local Government, the issue of calling objections is just an exception but generally
it is not mandatory.
103 [1948] AC 87
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c. Waiver
This refer the right which has to be exercised but a person to benefit from it denies such right.
For example is a person is given a right to be heard but he decided not to speak. In criminal
cases, a person who is called to plead but remains quiet the Court enters a plea of not guilty or a
person refusing to give evidence in a case a negative inference can be drawn against him.
d. Initiating procedure
These are procedures of preliminary nature where the determination of the issue can not be relied
on. For example during the investigation, committal proceedings or suspention from work in
labour relations. However, there is an exception to the rule whereby to some of the initiating
procedure the rules of natural justice must be adhered
Munuo Ng’uni v Judge in Charge and Another In this case involved the assignment of dock
breaf, whereby a judge assigned the dock brief to the Advocate who had to represent a person in
a Criminal Aid, but Munuo rejected the assignement and consequently his practice licence was
suspended by the Judge in Charge. The Court said that when the persons right is to be affected a
person must be given a right to be heard.
e. Necessity
This is applied so as to see the conclusion of cases. For example where a person does not appear
during hearing and the court has been adjourning the case for a period of time, then upon
appearing such person can not claim for further adjournments.
Masumbuko Rashid v R104 The adjournment was sought for the sake of engaging an Advocate
and the court rejected it. The appellant being charged before the court for criminal offences, they
appeared before the District Court on 26th December 1985 and entered a plea of not guilty. They
made no request whatsoever. On 8 th January 1986, the case came up for hearing. It was then the
four accussed persons told the court that they wanted to engage an Advocate. The case was
adjourned. The following date the accussed repeated their request, but the learned Magistrate
104 [1986] TLR
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ruled that the case should proceed and the charge be read over to them, at that time the accused
persons left the dock in protest.
TOPIC NINE
JUDICIAL REVIEW
9.0 Introduction
Judicial review represents the means by which the courts control the exercise of governmental
power. Government departments, local authorities, tribunals, state agencies and agencies
exercising powers which are governmental in nature must exercise their powers in a lawful
manner. Judicial review has developed to ensure that public bodies which exercise law making
power or adjudicatory powers are kept within the confines of the power conferred.
Judicial review is concerned with the legality of the decision made, not with the merits of the
particular decision. Accordingly, the task of the judges is to ensure that the exercise of any power
which has been delegated to ministers and administrative and adjudicatory bodies has been
lawful according to the power given to that body by Act of Parliament. As will be seen below,
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there is academic debate concerning the appropriate basis on which the courts exercise their
supervisory jurisdiction.
The traditional view has been that the judge’s task is to ensure that public bodies act within their
powers or intra vires and that, provided that the body has acted within its powers as defined by
statute, and according to the common law based rules of natural justice, the body’s decision will
not be challengeable under the public law process of judicial review.105
From this traditional perspective, judicial review is principally concerned with questions of
jurisdiction and natural justice. The primary question to be asked is whether a particular person
or body with delegated law making or adjudicatory powers had acted intra vires or ultra vires,
and whether the decision making process entailed the application of natural justice. If the person
or body was acting within its jurisdiction, and respecting the demands of natural justice, the
courts would not interfere with the decision – even if the decision was in some respect wrong.
Nowadays, although the judges still express their role in the traditional language of ‘vires’, the
approach taken is more robust than before. If a public body, as defined in law, makes an error of
law, the courts through the process of judicial review will intervene to ensure that the body in
question reconsiders a matter and acts in a procedurally correct manner.106
According to Black’s Law Dictionary, 8th Edition defines judicial review as the Court’s review
of a lower or an administrative body’s factual or legal findings. The high court is therefore vested
with the power to pass through a decision or order made by a public body, a tribunal or an
inferior court to examine among other things its correctness, legality and if it was based on the
principles of natural justice. Hence the powers of the high court are only supervisory.
9.1 Object of Judicial Review

The object of judicial review is to ensure that the authority does not abuse its power and the
individual receives just and fair treatment and to ensure that the authority reaches a conclusion
105 Chapter 25 on natural justice.
106Craig, 1994a; Wade and Forsyth, 1994. on natural just
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which is correct in the eyes of law107. Therefore, judicial quest in administrative matters is to
strike the just balance between the administrative discretion to decide matters as per government
policy, and the need of fairness, thus any unfair action must be set right by administrative
review108. Professor Issa Shivji viewed that judicial review as one of the mechanism by which a
relatively open organ of the State i.e. Judiciary can bring to light and to some limited extent
redress the abuse of power and authority committed by other organs of the State and public
officials.
9.2 Rationale of Judicial Review

The rationale behind the judicial review is that it form as integral part of the constitutional
system and without it, there will be no government of laws and the rule of law would become a
teasing illusion and a promise of unreality. Therefore, judicial review is a basic and essential
feature of the Constitution and it cannot be abrogated without affecting the basic structure of the
Constitution.
9.3 Scope of Judicial Review

It is important to note that in judicial review, the court is not concerned with the merits or
correctness of the decision, but with the manner in which the decision is taken or order is made.
The court of law is not exercising appellate power and it cannot substitute its opinion of the
authority deciding the matter. Thus, the areas where judicial power can operate are limited to
keep the executive and legislature within the scheme of division of powers between the three
organs of the State109.
107 Chief Constable v Evans (1982) 3 All ER 141, also cited by C.K. Takwani:
Lectures of Administrative Law, p.237
108 Tata Cellular v Union of India (1994) 6 SCC 651
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9.4 Limitations on judicial review

It is a first principle of justice and the rule of law that public bodies are required to act within the
scope of the powers allocated to them by parliament and, accordingly, in principle, judicial
review should lie wherever the vires of administrative action is in question. However, that
principle must be set in the balance against the needs of certain administration, and the necessary
restrictions which may be imposed on individuals or bodies seeking to disrupt the administrative
process, without good cause. The balance to be struck between these often competing principles
is a difficult matter.
Where parliament limits the availability of judicial review, the courts will adopt a restrictive
interpretation to the statutory words, employing the presumption that parliament did not intend
save in the most express manner to exclude the jurisdiction of the courts. A number of different
statutory means are employed in the attempt to limit the availability of judicial review. In
summary, parliament may adopt the following means:
a. The general requirement that applications for judicial review are brought within three
months of the challenged decision;
b. Clauses which are intended to prevent any challenge;
c. Clauses which are designed to limit review to a specified time period in relation to
particular matters where delay needs to be avoided;
d. ‘Conclusive evidence’ clauses.
9.5 Functions of judicial review
a. Judicial review safeguards individual rights.
Judicial review is a mechanism whereby individuals are entitled to bring an action in the courts
to enforce a right or protect an interest by stopping unlawful conduct of the government or one of
its agencies. The grounds available in judicial review are designed to ensure that government
decisions are reached by fair procedures and are rational and lawful. Made within the limits of
the power or duty imposed on the decision maker110.
110 Report to the attorney general
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b. Judicial review is consistency and certainty in the administration of

legislation.
Although judicial review cases usually arise in an ad hoc way, individual cases often provide
guidance on the interpretation of legislation that affects many other people. In that way, judicial
review can have a broad ranging effect because of the precedential value of the court’s reasons
for decision. A judicial ruling on a matter of law is conclusive and binding on the executive
branch111.
c. Judicial review ensure that governmental agencies dispense their duties

within the law
The major role of judicial review is to check and to ensure that governmental agencies exercise
their discretionary powers intra vires within the law in order to avoid decisions which violate
individuals right or decisions which are for the interest of ruling class and such decisions may
affects individuals.
If governmental agencies will not be controlled by the mechanism granted power by the law
there will be no liberty and the violation of human rights will be a common thing in the state
because those who vested power to exercise their permissive decisions they will misuse their
power and deciding matters on their own interest.
d. Judicial review ensures observation of the principle of natural justice
Judicial review plays a vital role to insure that natural justice is observed when it happen a
situation where the aggrieved person did not given chance of fair hearing (audi ateram patten)
by governmental agencies such as administrative tribunals and the decision was made without
give chance the aggrieved person to make his defense.
The court through judicial review must ensure that the principle of nemo judex in causa sua,
audi atram patten and reason for decision were observed or not in order for the court to nullify
such decision or to agree with the decision made previously by administrative agencies of the
government.
111 Gould livery report on administration of justice through review, revision and application
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9.6 Historical Background of Judicial Review in Tanzania

Since the main objective of judicial review as discussed on the fore going part as to supervise the
administrative bodies decision making and policy implementation, during much of the colonial
period judicial review had virtually no role to play for the simple reason that colonialism itself
was one gigantic abuse of power. Access to colonial courts which were racially segregated was
denied, the large majority courts in effect served largely the immigrant communities involved in
commercial and other such enterprises.
For the first two decades of independence the legal terrain remained much the same although the
trappings of racism in the colonial law were removed. Judicial activities in the field of judicial
review began to pick up hesitantly in the 1980’s as the arbitrary use of the administrative power
affecting property owners began to be challenged in courts. See the case of Patman Garmets v
Tanzania Manufactures112, Thereafter, emerged a few courageous people who stood up and
challenged the presidential powers under the Preventive Deportation Act of 1962 though they
were always unsuccessful. At the other end of the scale, the legal aid of the Faculty of Law of the
University of Dar es Salaam filed several judicial review applications in labour matters, for
example Hamis Ally Ruhondo & 15 others v TAZARA113, which in the sense was a
rediscovery of judicial review mechanism to challenge administrative power. In fact it was the
justifiability of the Bill of Rights which gave the big boast to the judicial positivism in the field
of judicial review. The Bills of Rights was first introduced in Tanzanian Constitution in 1984 by
the 5th Constitutional Amendment.
9.7.1 Sources of Supervisory Jurisdiction (Judicial Review) in Tanzania
a. The Constitution of the United Republic of Tanzania, 1977

The High Court has been established by Article as the superior court of record in any matter
which ‘in accordance with legal traditions and conventional practices’ obtaining in Tanzania, is
to be dealt with the High Court. It can be said that by 1977 the supervisory jurisdiction of the
High Court through judicial review had become part of the legal tradition and practice in
112 [1981] TLR 303
113 Civil Appeal No.1 of 1986
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Tanzania. Article.13 (6) (a) of Constitution also stresses this view by providing the right of
appeal or ‘any other legal remedy’ this presumably includes Judicial Review.
b. The Judicature and Application of Laws Act

The supervisory power of the High Court is derived from Section 2(3) of the JALA. This
provision provides that the High Court is vested with powers to exercise its jurisdiction in
conformity with the substance of the Common Law, Doctrine of Equity and with powers vested
in and according to the procedure and practice observed by and before the Courts of Justice in
England. Therefore, it can be said that, the substantive law, the practice and procedures obtained
in England on the date of reception.
c. The Criminal Procedure Act

This is another source of judicial review on criminal cases, thus a power exercised by the High
Court by virtue of Section 390 whereby a writ of Habeas Corpus is clearly provided for.
d. The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act

This was stated by Samatta J in the case of Chavda v Director of Immigration Services where
he stated this law as being ‘the legislation which confers on this Court the power to grant
prerogative remedies. However, Proffesor Shivji criticized this saying that it is an erroneous
belief because the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act only changes
the designation of the three prerogative remedies of Mandamus, Certiorari and Prohibition from
writs to orders a change which was brought about in England in 1938 but does not constitute the
source of jurisdiction.
9.8 Bodies subjected to Judicial Review

a. Public Bodies and Officials
This includes the Ministers, Ministries and Government Officials and Government departments.
Thus, the Government ministries, other public officials and bodies exercising public functions
under the authority of law including statutory corporations, for example, institutions for learning,
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governmental parastatals, etc. read the case of Simeon Manyaki v Institute of Financial
Management114.
b. Private Bodies with Public Functions

It is well-settled by Tanzanian case laws that public bodies and officials as well as domestic
tribunals such as associations, clubs and societies are amenable to judicial review. A body which
is not directly established by the statute but is regulated by it, therefore derives some of its
powers under statute is also amenable to judicial review. For example, schools are regulated by
the National Education Act, read the case of Nyirabu and Others v A.G. & Board Chairman
Songea Boys Secondary School115.
9.9 Institution of Judicial Review

The institution of judicial review involves two stages;
a. Leave Stage
At this stage application is made to the High Court for leave to file Judicial Review. This
application is made by way of chamber summons supported by an affidavit. At this stage the
court determines whether there exists a good case to be taken for judicial review or not. i.e. the
court determines whether the case is not frivolous. The application is made ex-parte. The
applicant has to show that he has no any other alternative remedy than going for judicial review.
The affidavit must depose clearly to both the material facts as well as the grounds for the
application. It is now a well established principle that application for leave instated by chamber
summons accompanied by statements of the grounds and an affidavit. This was stated by
Kyando J, in the case of Nkuzi v Tanzania Sisal Authority, whereas in this case the court
struck out an application as incompetent for absence of statement of grounds. However,
Lugakingira J adjourned the matter to allow the applicant to file the statement of the grounds in
the case of Mwakibete v The Principle.
114 Misc.Civ Application No.68 of 1994 HC DSM
115 Misc.Civ.App No.3 of 1994 H.C. Songea
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At the leave stage the court shall summon the A.G to appear as a party, if he does not appear on
the date mentioned in the summons the court may proceed ex-parte. Read the case of Mwanza
Restaurant v Mwanza Municipal Director 116. The A.G appears as the necessary party wearing
the cap of the respondent.
b. Application Review after the leave has been granted the for Judicial
After the leave is granted, the applicant must file a new application. However, this is more
theoretical, most practitioners do not bother to file new application they just carry over to this
stage the papers filed for the leave stage.
Matters of evidence in judicial review are mainly by affidavits. The deponent can be cross-
examined but this is rarely done in practice, it is more theoretical.
9.10 The grounds for judicial review
1. Either the order or act to be quashed is ultra vires (illegality and irrationality)
A decision is illegal if it contravenes or exceeds the terms of the power which authorizes the
making of the decision; pursues an objective other than that for which the power to make the
decision was conferred; is not authorized by any power; contravenes or fails to implement a
public duty.
The Court of Appeal of Tanzania in Sanai Murumbe and another v. Muhere Chacha [1990]
TLR 54 (CA) stated six grounds for judicial review. The court stated as follows; “The High
Court is entitled to investigate the proceedings of a lower court or tribunal or a public
authority on any of the following grounds, apparent on the record.
i. One, that the subordinate court or tribunal or public authority has taken into account
matters which it ought not to have taken into account.
ii. Two, that the court or tribunal or public authority has not taken into account matters
which it ought to have taken into account.
iii. Three, lack or excess of jurisdiction by the lower court.
116 Misc. Civil Cause No.3 of 1987
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iv. Four that the conclusion arrived at is so unreasonable that no reasonable authority
could ever come to it.
v. Five, rules of natural justice have been violated.
vi. Six, illegality of procedure or decision.”
The task for the courts in evaluating whether a decision is illegal is essentially one of construing
the content and scope of the instrument conferring the duty or power upon the decision-maker.
The instrument will normally be a statute or statutory instrument, but it may also be an
enunciated policy, and sometimes a prerogative or other The courts when exercising this power
of construction are enforcing the rule of law, by requiring administrative bodies to act within the
‘‘four corners’’ of their powers or duties. They are also acting as guardians of Parliament’s will,
seeking to ensure that the exercise of power is in accordance with the scope and purpose of
Parliament’s enactments
2. The order was made in error of law

It occurs when the decision maker has misunderstood or misapplied a statute, for example by
applying the wrong criteria, or asking the wrong question. In practice this often occurs because
the decision maker has failed to read or understand the statute. In addition where the policy
exists, the decision makers can fail to realize its limitations, sometimes believing that the policy
empower them rather than the law.
3. Bad faith and improper motive

Fundamental to the legitimacy of public decision-making is the principle that official decisions
should not be infected with improper motives such as fraud or dishonesty, malice or personal
self-interest. These motives, which have the effect of distorting or unfairly biasing the decision-
maker’s approach to the subject of the decision, automatically cause the decision to be taken for
an improper purpose and thus take it outside the permissible parameters of the power.
A power is exercised fraudulently if its repository intends for an improper purpose, for example
dishonestly, to achieve an object other than that which he claims to be seeking. The intention
may be to promote another public interest or private interests. A power is exercised maliciously if
its repository is motivated by personal animosity towards those who are directly affected by its
exercise.
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4. Absence of jurisdiction
The question of whether an authority has jurisdiction to make a decision or perform an action is
of particular importance in judicial review. The power of an authority or a decision maker is
usually confined to a strictly defined area by its governing statutes because it is a parliament
through the statue that give them power.
5. Unlawful delegation
The law requires that only those bodies to which powers are entrusted must exercise such
powers. A person can only delegate his powers if he has been expressly empowered to do so. If
one delegates his function unlawfully to another person and such powers are used to the
detriment of another individual, then such delegation can be challenged as ultra vires.
9.11 PREROGATIVE REMEDIES

The granting of a remedy in judicial review proceedings is at the discretion of the court.
Prerogative writ is the doctrine under which legislative and executive actions are subject to
review, and possible invalidation by the judiciary. Specific courts 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.eg. Certiorari, mandamus, prohibition, habeas corpus etc.
1. HABEAS CORPUS
Is the order from the High court to the subordinate courts or administrative tribunals to detain a
person who has detained unlawfully or without legal justification, after the court has satisfied
with the application of judicial review by the aggrieved person the court order such remedy in
order to institute proper procedure of proceeding against the aggrieved person who applied for
judicial review. The governing law relating to application of a writ of habeas corpus is the
Criminal Procedure Act [CAP 20 R.E.2002]. Section.390 (1) of the CPA provides that
a. The High Court may, whenever it thinks fit, direct

 That any person within the limits of Mainland Tanzania be brought up before the court to
be dealt with according to law;
 That any person illegally or improperly detained in public or private custody within such
limits be set at liberty;
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 That any prisoner detained in any prison situate within such limits be brought before the
court to be there examined as a witness in any matter pending or to be inquired into in
such court;
 that any prisoner detained as aforesaid be brought before a court-martial or any
commissioner acting under the authority or any commission from the President for trial
or be examined touching any matter pending before such courtmartial or commissioner
respectively;
 That any prisoner within such limits be removed from one custody to another for the
purpose of trial;
 That the body of a defendant within such limits be brought in on a return of cepi corpus
to a writ of attachment.
In the case of Sheikh Mohammad Nassor Abdulla v. the Regional police commander, Dar es
Salaam region and two others117 this was an application for directions in the nature of habeas
corpus. The applicant was deported to Zanzibar from Tanzania Mainland under an order by the
President. The order which was made under the Deportation Ordinance Cap. 38, was challenged
in the High Court on the ground that the President exceeded his powers under the Ordinance. The
court held that:
a) Section 2 of the Deportation Ordinance empowers the President to deport a person from
one part of the Territory to any other part of the Territory;
b) Under section 3 of the Interpretation of Laws and General Clauses Act, 1972 the word
Territory means Tanganyika;
c) The President has no power under the Deportation Ordinance to order deportation of a
person from Tanzania Mainland to Zanzibar; therefore, the deportation order was illegal.
2. CERTIORARI: ‘QUASHING ORDER’
Is the decision of the high court to quash the decisions of the administrative agencies in a manner
that the previous decisions made by administrative agencies or executive official where ultra
vires. This remedy overlaps with that of prohibition (below). An order of certiorari – or quashing
order – is one which ‘quashes’ the original decision: accordingly it is both negative and
retrospective in nature: R v Criminal Injuries Compensation Board ex parte Lain (1967);
117 1985 TLR 1 (HC)
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O’Reilly v Mackman (1983). The classic dictum is that of Lord Atkin: 118 ... whenever anybody of
persons having legal authority to determine questions affecting the rights of subjects, and having
the duty to act judicially, act in excess of their legal authority, they are subject to the controlling
jurisdiction of the King’s Bench Division exercised in these writs.
Conditions necessary for a writ of certiorari to issue were discussed by Lord Atkin in the case of
R v Electricity Commissioners[1924] 1 KB 171. Such conditions include;
 That the judicial or quasi-judicial body must have legal authority

 That such authority must be in respect of determining questions affecting rights of
subjects
 It must have duty to act judicially
 The authority must have acted in excess of its authority
Honorable Masanche, J while describing the order of certiorari in the case of Abadiah Selehe v
Dodoma wine company limited [1990] TLR 113 (HC) stated that; “The law about orders of
certiorari and mandamus is quite clear in this country, and I can do no better than quote my
brother Samatta J. (as he then was) in the case of Moris Onyango v The Senior Investigating
Officer Customs Department Mbeya Criminal Application No. 25 of 1981; wherein he said:
“It is entirely correct preposition to say that an order of mandamus is a discretionary remedy.
The order is not one of right and it is not issued as a matter of course. The purpose of the
order is to supply defects of justice. It will therefore issue where there is no specific legal
remedy for enforcing the specific legal right claimed or where, although there is an
alternative legal remedy, such mode of redress is considered by the court to be less convenient,
beneficial and effectual. As a general rule the court will refuse to issue the order if there is
another convenient or feasible remedy within the reach of the applicant”119
3. MANDAMUS: ‘MANDATORY ORDER’
118 R v Electricity Commissioners ex parte London Electricity Joint Committee

Company (1920) Ltd (1924).
119 Also see the case of Lakaru v Town Director (Arusha) (1986) TLR page 326.)
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The legal basis of Mandamus is provided under Section.17 of the Law Reform Cap.310. Is the
order of the high court to enforce public body to perform a public duty in which such public
body was obliged to perform by the law, This remedy is particularly appropriate if the person
responsible for discharging the public duty either has failed to perform it or has constructively
failed to perform it in the sense that any purported performance was infected with jurisdictional
error and was therefore not a legally effective performance of the duty.
This order is one which compels an authority to act. A mandatory order does not lie against an
authority which has complete discretion to act. A failure to comply with the order amounts to a
contempt of court. For mandamus to be issued the following conditions must be present:-
a. The petitioner must have a legally enforceable right against the party to whom he
seeks to have the writ issued.
Also the right sought to be enforced must be subsisting on the date of the petition. In the Matter
of an Application by Mohamed Aslam Khan120, where Georges C.J held inter alia that:- “I am
quite clear that no prima-facie right for the issue of a writ of mandamus as prayed for in this
case has been made out and in the circumstances I propose to refuse leave….in my view the
applicants have no legal enforceable right to demand that the police arrest and procesute
persons trespassing on their lands. The courts are equally open to the applicants to prosecute
criminally or sue civilly those who they claim have infringed their rights”.
b. It must be legal duty.

The applicant must have a right to the performance of a legal duty. A legal duty must have been
imposed on the authority and the performance of that duty should be imperative, not
discretionary or optional. Such a duty must be statutory i.e. one imposed by the Constitution or
by any other statute, or by some rules of common law. More over if an authority is invested with
discretionary power abuses the power, or exceeds it, or acts malafide or there is non – application
of the mind by it, or irrelevant considerations have been taken into account, the writ of
mandamus can be issued121.
c. Demand and refusal:

120 (1966) unreported H.C of Tanzania Misc. causse No.22
121 CK. Takwani: Lectures on Administrative Law, p.311
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The petition for a writ of mandamus must be proceeded by a demand of justice and its refusal. In
Hulsbury’s law of England122, it is stated that: “as a general rule the order will not be granted
unless the party complained of has known what it was he was required to do, so that he had
the means of considering whether or not he should comply, and it must be shown by evidence
that there was a distinct demand of that which the party seeking the mandamus desires to
enforce, and that the demand was met by the refusal”
d. Good faith:
An application for mandamus must have been made in good faith and not any ulterior motive or
oblique purpose. A petition for mandamus albeit made in good faith, will not be granted if
designed to harsrass the respondent or with a view to wreak personal grievances123.
b. Whether a case is of class of cases in which an order against the State or any of its
servants can be made.
To fall in the class of cases in which an order against the State can be made, a case must be one
when officials have the duty to perform and that duty being imposed by common law or statute
and being owed to the public. In the case of Shah v A.G. Uganda124, leave was granted to apply
for an order of mandamus directed to the Tresury Officer of Accounts and/or the officer on
special duty (finance) Buganda affairs, Ministry of regional administration, to pay the applicant a
decretal amount in Civil Suit No.336 of 1968, wherein the present applicant was successful
plaintiff and the present respondent the defendant. Goudie J held inter alia that: “it seems to me
to be an illogical argument that the government Accounting officer can not be compelled to
carry out statutory duty specifically imposed by parliament out of funds which parliament
itself has said shall be provided for the purpose….what the applicant is seeking is not relief
against the Government but to compel a Governmental official to do what the Government
throught the parliament, has directed him to do”
122 3rd Edition Vol.13,p106
123 Ibid
124 (1970) E.A. 543 (H.C of Uganda)
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Also according to Alfred Lakuru v Town Director Arusha 125, conditions precedent to issue the
order of mandamus includes;
 Existence of legal duty

 The duty must be public
 Right must be in applicant
 Application must be made in good faith
 Demand for performance must precede application
 There must exist the posibility of enforcement
 There must be no other remedy
John Mwombeki Byombalirwa v Regional Commissioner and Regional Police Commender

Bukoba126 The applicant was one of suspected economic saboteurs. He was arrested in March
1983 and a substantial part of his property valued at Shs.11,675,680/= was seized (excluding
beer and Konyagi). He was charged with hoarding property but the special tribunal acquitted
him and ordered that the seized property be restored to the applicant. The government officials
involved did not comply with the order hence the application for an order of mandamus to issue.
The court Held: Five conditions must be proved in order for an order of mandamus to issue:
a) The applicant must have demanded performance and the respondents must have refused
to perform;
b) the respondents as public officers must have a public duty to perform imposed on them
by statute or any other law but it B should not be a duty owed solely to the state but
should be a duty owed as well to the individual citizen;
c) the public duty imposed should be of an imperative nature and not a discretionary one;
d) the applicant must have a locus standi, that is he must have sufficient interest in the
matter he is applying for;
e) there should be no other appropriate remedy available to the applicant;
In this application all the five conditions have been proved; the applicant deserves an immediate
order for redress because the injustice already done to him is substantial and unwarranted.
In Jimmy David Ngonya v national insurance corporation ltd 127 the applicant was dismissed
from employment as a branch manager of the respondent corporation. The Board of Directors
125 [1980] TLR 326
126 [1986] TLR 73
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dismissed him on the basis of an audit report whose contents were never shown to the applicant
to enable him to contradict them. When the Board of Directors met to deliberate on the
applicant's case, the General Manager, who had initiated the proceedings against the applicant
and had commissioned the audit, was present but the applicant was absent. The applicant applied
for certiorari and mandamus arguing that his dismissal was in contravention of the rules of
natural justice.
The court held that: Since the audit report was prejudicial to the interests of the applicant and
it formed the basis of the decision of the Board, it ought to have been shown to the applicant
for his comments and for an opportunity to contradict its contents; failure to do that
contravened the right of the applicant to be heard; Since the General Manager, who was in
the nature of a prosecutor, was present during the deliberations of the Board which dismissed
the applicant, the proceedings of the Board were vitiated by bias.
In Tanzania air services limited v. minister for labour, attorney general and the
commissioner for labour128 the applicant company, aggrieved by the decision of the Labour
Conciliation Board re-instating an employee whose services had been terminated, referred the
matter to the Minister for Labour under section 26 of the Security of Employment Act 1964,
Cap 574. The Minister lawfully delegated his power to deal with the reference to the
Commissioner for Labour who confirmed the decision of the Conciliation Board but gave no
reasons at all for reaching that decision. Section 27(1) of the Act stated that the decision of the
Minister was final and conclusive. The applicant sought an order of certiorari to quash that
decision contending that the failure to give reasons rendered the decision a nullity.
The court held that: Under common law there is no general requirement that public authorities
should give reasons for their decisions but that position has been under criticism;
The interests of justice call for the existence, in common law, of a general rule requiring
public authorities to give reasons for their decisions;
127 1994 TLR 28 (HC)
128 1996 TLR 217 (HC)
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Under section 2(2) of the Judicature and Application of Laws Ordinance, Cap 453, the High
Court has power to vary the common law to make it suit local conditions; the conditions of
the people of Tanzania make it a fundamental requirement of fairplay and justice that parties
should know at the end of the day why a particular decision has been taken;
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;
Quashing the Labour Commissioner's decision and letting the matter lie there will be
unsatisfactory as it will leave in force the decision of the Conciliation Board; an order of
mandamus, therefore, can be issued by the High Court invoking its inherent powers
notwithstanding that there is no prayer for the same;
To ensure that justice is done and also it is seen to be done the order of mandamus should be
directed to the Minister himself, not the Commissioner for Labour.
4. INJUNCTIONS
Injunctions is the prerogative granted by the High court. This remedy is available to protect
statutory rights and to enforce the statutory obligations of officials or others, it can be issued in
prohibitory or mandatory form
Injunctions may be interim or permanent, and positive or negative. Injunctions may be used to
prevent a minister or administrative body from acting unlawfully. In M v Home Office (1993),
the House of Lords held that injunctions could lie against ministers of the Crown, and that
breach of an injunction could lead to a minister, in his official capacity as representative of the
Crown, being held in contempt of court.
In Metropolitan Asylum District v Hill [1881] 6 AC 193, the relevant Act empowered the
authority to build a hospital for children for treatment of small-pox. An injunction was obtained
by neighboring inhabitants on the ground of nuisance. An order of injunction is a discretionary
one. However such discretion has to be exercised judicially. Conditions necessary for this order
to be granted are;
 The plaintiff must be an aggrieved person
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 The plaintiff must be entitled to get assistance from the court

 There should be no other alternative remedy
5. DECLARATIONS
A declaration is a statement of the legal position of the parties, and is not accordingly a remedy
per se. Although lacking coercive force, public bodies will respond to a declaration and comply
with its terms by rectifying its actions. Declarations are available against the Crown.
6. DAMAGES
An applicant for judicial review may be awarded damages in conjunction with one of the other
remedies. Damages will only be awarded if they would have been recoverable had the applicant
begun an action by writ (that is, a private law action).
7. QUO WARRANTO
This means ‘what is your authority’. It is a public remedy issued against an occupier or usurper
of an independent substantive public office, franchise or liberty. It is an order intended to call the
person to show before the court by what authority he holds the office, franchise or liberty. If the
holder has no authority to hold the office he can be ousted from its enjoyment.
As stated in University of Mysore v Govinda Rao AIR 1965 SC 491, the procedure of quo
warranto intends to give power on judiciary to control executive action in the matter of making
appointments to public offices against relevant statutory provisions.
Conditions necessary for the writ of quo warranto to issue are;
 The office must be of public nature
 The office must be of an independent character/substantive character

 The office must be statutory or constitutional
 The holder must have asserted his claim to the office. One can be challenged even where
the procedures in his appointment were not complied with. For instance if there was
failure to comply with swearing/affirmation procedure.
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9.8 OMBUDSMAN AND THE COMMISSION FOR HUMAN RIGHT AND GOOD
GOVERNANCE
Introduction
Ombudsman is an office established by the constitution or statute headed by an independent

high-level public official who is responsible to the legislature or parliament whose duty is to
receive complaints from aggrieved persons against government agencies, officials and employer
or who acts on his own motion and has the power to investigate and recommend corrective
action and issue a report.
Ombudsman connotes a delegate organ, officer or commissioner charged constitutionally or

legally with responsibilities of streamlining heavals that may arise between the government and
the citizens as a result of commission or omission in the governmental administrative
manipulations.
The word ‘ombudsman’ which literally means ‘public prosecutor’ originates from Scandnavian
countries, whereas this institution started in Sweden in 1809 and thereafter it has been accepted
in other countries. In general language refers to an agency or official appointed to investigate
individual complaints against public authorities.
In Tanzania the Constitution provides the establishment of the ombudsman under Article. 129 of
the United Republic of Tanzania Constitution, 1977, which is the Commission for Human Right
and Good Governance.
Article 131 of the Constitution authorises the Parliament to enact a law to facilitate the
functioning of the ombudsman. The enacted law in this regard is the Commission for human
Right and Good Governance Act of 2001 which repealed and replaced the Permanent
Commission of Enquiry Act of 1966.
9.8.1 Composition of the Commission S.7 of the Act

The Commission consists of a Chairman, a Vice Chairman, and not more than five
Commissioners and Assistant commissioners. A chairman must be a person qualified for
appointment as a jugde of the High Court or a judge of the Court of Appeal. If a chairman hails
from one part of the united Republic, then the vice chairman must be a person who hails from
another party of the Union. This is a union matter.
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For a person to qualify to be appointed as commissioner or assistant commissioner, he must be of

highest reputation and is known for his high morality, integrity, impartiality and competence in
matters of human right and good governance. Members of the committees are appointed by the
President. They hold office for a period of three years and are eligible for re-appointment for a
second term not exceeding three years as per Section 8(1) of the Act. A commissioner must retire
upon attaining the age of 65 years, Section.8 (2) of the Act. A commissioner may resign his
office upon giving one month notice in writing to the President.
9.8.2 Functions of the Commission, S.6 of the Act

 to promote within the country the protection and the preservation of human rights and of
duties to the society in accordance with the Constitution and the laws of the land;
 to receive allegations and complaints in the violation of human rights generally;
 to conduct enquiries into matters involving the violation of human rights and the
contravention of the principles of administrative justice;
 to conduct research into human rights, administrative justice and good governance issues
and to educate the public about such issues;
 when necessary, to institute proceedings in court designed to terminate activities
involving the violation of human rights or redress the right or rights so violated, or the
contravention of the principles of administrative justice;
 to investigate the conduct of any person to whom or any institution to which the
provisions of this section apply in the ordinary course of the exercise of the functions of
his office or discharge of functions in excess of authority;
 to investigate or inquire into complaints concerning practices or actions by persons
holding office in the service of the government, public authorities or other public bodies,
including private institutions and private individuals where those complaints allege abuse
of power, injustice, unfair treatment of any person, whether complainant or not, in the
exercise of their official duties;
 to visit prisons and places of detention or related facilities with a view to assessing and
inspecting conditions of the persons held in such places and making recommendations to
redress the existing problems in accordance with the provisions of this Act;
 to take steps to secure the remedying, correction, reversal or cessation of instances
referred to paragraphs (e), (f), (g) or (h) through fair, proper and effective means,
including the institution of legal proceedings;
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 to provide advice to the government and to other public organs and private sector
institutions on specific issues relating to human rights and administrative justice;
 to make recommendations relating to any existing or proposed legislation, regulations, or
administrative provisions to ensure compliance with human rights norms and standards
and with the principles of good governance;
 to promote ratification of or accession to treaties or conventions on human rights,
harmonization of national legislation and monitor and assess compliance, within the
United Republic, by the government and other persons, with human rights standards
provided for in treaties or conventions or under customary international law to which the
United Republic has obligations;
 under the auspices of the government, to cooperate with agencies of the United Nations,
the OAU, the Commonwealth and other bilateral, multilateral or regional and national
institutions of other countries which are competent in the areas of protection and
promotion of human rights and administrative justice;
 to take such measures as may be appropriate for the promotion and development of
mediation and reconciliation amongst the various persons and institutions who come or
are brought before the Commission;
 to perform such other functions as may be provided for by any other written law.
9.8.3 Status, Power and Competence of the Commission

The commission is a public department, a public office by virtue of S.13 of the Act. It is an
independent department whereas in performing its functions and duties is not subjected to the
direction or control of any authority as per S.14 of the Act. The commission has the power to
investigate any human rights abuses or maladministration on its own motion or upon receipt of a
complaint or allegation by an aggrieved person, an association acting on the interest of the group
or class of persons, S.15(1) of the Act.
After conducting an investigation, the commission has the power to promote negotiation and
compromise between the parties concerned or to report the matter to the appropriate authority or
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persons having the control over the person in respect of whose act or conduct an investigation
has been carried out by the commission or recommend to the relevant person or authority such
measures as will provide an effective settlement remedy which may be available from the court.
S.15 (3) of the Act.
S.16 of the Act provides for limitation and restrictions on investigations, i.e. it provides the
boundaries beyond which the commission is not authorized to extend its duties. For example it
cannot investigate or institute proceedings against the President, it cannot investigate an matter
which is pending before the court of law or other judicial tribunal. The President is empowered
to direct the commission to stop carrying out the investigation, S.16 (3) (4) of the Act.
The decision of the commission has the status of the recommendation to the appropriate
authority or person having control over the person in respect of whose act or conduct an
investigation has been carried out, S.17(1) of the Act.
The proceedings of the commission and its decision are privileged in the same manner as the
proceedings of the court, S.17 (2) of the Act.
No proceedings can lie against the officers of the commission for anything done or omitted to be
done in good faith in the exercise of their duties, but if done malafide, proceedings can lie
against them, S.17 (3) (4) of the Act. A witness before the commission enjoys the same privileges
as a witness in the High Court, S.17 (7) of the Act
S.19 of the Act requires the commission to ensure confidentiality of an enquiry. During hearing,
the commission has power to determine its own procedure. It is bound to observe the rules of
natural justice. It is not bound to any legal or technical rules or evidence applicable before the
court.
If the members present, constitutes a quoram, adecision of the majority of the members present is
the decision of the commission. In the event of any equality of the votes on any matter, the
member presiding shall have a casting vote in addition to his deliberately vote, S.20 of the Act.
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TOPIC TEN
10.0 DISCRETIONARY POWER
The concept of discretion in its legal context implies power to make a choice between alternative
courses of action or inaction. If only one course can lawfully be adopted, the decision taken is
not the exercise of a discretion but the performance of a duty. To say that somebody has a
discretion presupposes that there is no unique legal answer to a problem. 129
There may, however, be a number of answers that are wrong in law. And even in cases where the
power is discretionary, circumstances can exist which mean the discretion can only be exercised
in one way. There are degrees of discretion, varying the scope for manoeuvre afforded to the
129 Mandatory and discretionary requirements, see 5–059–072.
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decision-maker. At the outset it should be emphasized that the scope of judicial review of the
exercise of discretion will be determined mainly by the wording of the power and the context in
which it is exercised.130
Parliament employs a great variety of different formulae to confer discretion and to guide the
exercise of that discretion. Sometimes, a statute exhaustively specifies the ways in which a
discretion may be deployed, such as by enumerating the types of conditions which an authority
may attach to the grant of a license. In such cases, the attachment of any other type of condition
may be illegal. Or it may lay down general standards to which the exercise of a power must
conform.131
Sometimes, however, the exercise of a statutory discretion is not limited by the express
provisions of the Act and in those cases the courts embark upon an interpretation of the objects
and purposes of the statute in order to identify the limitations to which the discretion is subject.
As was said by Lord Upjohn in Pad field, even if a statute were to confer upon a decision-maker
an ‘‘unfettered discretion.132
As per Lord Pollock in the case of Secretary of State for Education and Science v. Tame side
Metropolitan Borough Council133, the word ‘discretion’ connotes the ability to make a choice
between more than one possible courses of action upon which there is room for reasonable
people to hold different opinions as to which of the options should be preferred.
10.1 Discretionary powers and Mandatory powers distinguished

Mandatory powers do not give administrative bodies any freedom to choose a reason, content or
procedure of administrative action because the issue is already regulated by legal norm. Thus,
130 A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th
edn. (1959
131 R. Dworkin, Law’s Empire (1986), pp.335–336.
132 directions to Civil Aviation Authority nor non-statutory power
133 [1977] A.C. 1014 at 1064
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binding power could be evaluated as obligation or duty. But discretionary powers appear
different. While legislation provides the scope of discretion and its aim, the administrative body
enjoys some freedom in determining reasons to act, methods of act or content of its decision.
Discretionary Powers usually carry discretionary language like “May”, while mandatory have
commanding language with no element of choice or discretion like “shall”, “will”, and “must”.
An example of discretionary is the powers vested in the Tanzania president by the constitution to
pardon criminals under the prerogative of mercy as per Article 45 of the Constitution134, which
have a discretionary nature as the president is not forced to use them as there is an element of
choice. The example of mandatory power is the power given to the president to dissolve
parliament as per Article 97(4) of the Constitution135. Under Section 21 of Land Act136, imposes
mandatory powers for minister for land to make regulations in relation to ceiling of the land.
10.2 Wide discretionary power

Is where an executive official exercise and make decision which are ultra vires without regarding
limitation of laws and such decisions are oppressive in some extent and violate human right or
are made for the interest of a decision maker when exercising administrative activities of the
government by a particular official. The public authority would be said to have failed to exercise
its discretion when there is an unlawful delegation of discretionary powers to other person when
the statute states that such powers shall be exercised only by a particular public authority, when
It makes general rules and policies applicable to all without looking into merits of a special case
in which the authority ought to exercise discretion and It enters into a contract the terms of which
disable the authority to exercise its discretion. For that reason it is very crucial to wide
discretionary power in order to avoid violation of human right oppressive decisions and to
maintain the supremacy of law
134 [Cap 2 R.E 2002]
135 Ibid
136[Cap 113 R.E 2002]
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10.3 Mechanism for controlling wide discretionary power

The major mechanism of control wide discretionary power is judicial review but as the
experience of many jurisdictions in the modern democratic world indicates, there are different
devices that can be used to control the powers of administrative agencies. That is, there are
different controlling mechanisms that can be set in parallel to supplementing each other in
checking the powers of administrative agencies. Some of the commonly used controlling
mechanisms are:
i. Internal administrative review by superior officials;
ii. Parliamentary control;
iii. Political control;
iv. External administrative review by tribunals;
v. External scrutiny and recommendations by Ombudsmen and other watchdog institutions

and
vi. Judicial review
1. Judicial review
As was mentioned in the previous units, the principle of separation of state power among the
three organs of the government (the legislature, the executive and the judiciary) has been blessed
in many democratic jurisdictions of the modern world. The objective of the principle of the
separation of powers is to promote the ideal of law, liberty and democracy by controlling
circumstances that give rise to tyranny and dictatorship. As was discussed earlier, the
concentration of legislative, executive and judicial powers or any combination of these in the
hands of one person or body of persons is the primary cause of tyranny and dictatorship.
According to the advocates of this principle, tyranny and dictatorship cannot strive where power
is divided amongst the three organs, and where there are effective checks and balances. Thus, the
purpose of the principle of separation of state powers is not to create three empires, but to create
an effective system for checking and balancing among the three organs of the government. In the
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previous sub-section, we have seen ways in which the legislature checks the powers of
administrative agencies. This sub-section, in turn, discusses the modalities of judicial control of
administrative agencies.
Thus, the judiciary is one of the most effective machineries in restraining administrative agencies
within the bounds of their powers. Individuals aggrieved by agency decisions may seek court
intervention in appropriate cases. Broadly speaking, there are two modalities by which the
judiciary can exercise supervisory role over the powers of administrative agencies. These are
appeal and judicial review. The striking difference between appeal and judicial review is that the
former is statutory in origin whereas the latter is the inherent power of courts. Concerning this,
Cane writes:
10.3.1 Distinction between review and appeal
It is important to understand the main difference between appeal and review. The first relates to
the power of the court: in appeal proceedings the court has the power to substitute its decision on
the matter in issue for that of the body appealed from. In review proceedings, on the other hand,
the court’s basic power in relation to an illegal decision is to quash it, that is, to hold it to be
invalid. If any of the matters in issue have to be decided again, this must be done by the original
deciding authority and not by the supervising court. If the authority was under a duty to make a
decision on the matters in issue between the parties, this duty will revive when the decision is
quashed and it will then be for the authority to make a fresh decision. It is also open to the court,
in appropriate cases, to issue an order requiring the authority to go through the decision-making
process again.
Another course open to the …Court when it quashes the decision of a government body is to
remit the matter to the agency with a direction to reconsider it in accordance with the findings
of the …Court. The difference between this and the two previous outcomes is that under this
procedure the agency does not have to go through the whole decision-making process again.
For example, it might be that all the relevant facts have already been ascertained and the
finding of the…Court only concerns their legal significance. In such a case a complete
reconsideration of the case, including the taking of evidence and the findings of facts, would
be a waste of time and money; so the court can remit the case and direct the authority to
reconsider the facts in the light of the law as it has been held to be. This procedure differs
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from an appeal in only a very formal sense. On the other hand, remission would not be
appropriate where, for example, the authority is found to have been biased. Then a complete
rehearing before a differently constituted body would be needed in order for justice to be seen
to be done.
The second main distinction between appeal and review relates to the subject matter of the
court’s jurisdiction. This distinction can be put briefly by saying that whereas an appellate
court has power to decide whether the decision under appeal was ‘right or wrong’, a court
exercising supervisory powers may only decide whether the decision under review was ‘legal’
or not. If the decision is illegal it can be quashed; otherwise the court cannot intervene, even
if it thinks the decision to be wrong in some respect. (Cane, pp. 8-9)
In a nutshell, the judiciary is an important organ of the state machinery in controlling the powers
of administrative agencies through its supervisory power (judicial review) and appellate power.
The supervisory power (reviewing) of the court is different from its appellate jurisdiction in
terms of the source and the scope of the respective powers. In the common law tradition, judicial
review is treated as the inherent power of ordinary courts. But the source of the appellate power
of courts is legislation (statutory in origin). Judicial review is a technical review whereby the
court tests whether an agency decisions are legal or illegal. An appellate court may substitute a
new decision by overruling the decision of the lower body where the appeal was brought. Hence,
it is a merits review.
10.3.2 Area were the abuse of power can be seen

The government cannot dispense its function without the exercise some of discretion more often
the administration is required to handle intricate problems which involves investigations of facts
making of choices and exercise of discretion before deciding upon what action to take the
modern tendency is to leave a large amount of discretion with various authority. Article 30 (3) of
constitution of United Republic of Tanzania137, states that “person claiming that any
provision in this Part of this Chapter or in any law concerning his right or duty owed 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”. Thus basing on this provision the
137 [Cap 2 R.E 2002]
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discretionary powers may be controlled and challenged through judicial review by the
court of law for redress of an aggrieved person infringed rights.
The courts may declare a statute unconstitutional if it seeks to confer too large a discretion on the
administration. Fundamental Rights in Tanzania thus afford a basis to the courts to control the
bestowal of discretion to some extent, by testing the validity of the law in question on the
touchstone of Fundamental Rights. For this purpose, the courts can take into account both
procedural and substantive aspects of the law in question
Also there are some instances that the executive abuse power in the process of administrative so
this affect the rule of law for the case of discretion of power the abuse of power by executive by
in the process of administrative can be experienced in different circumstance.
a. The mater of Separation of power

It necessitates the elimination of conflicts among organ of the state while performing their
functions. In a Government where there is no separation of powers and limitation of these
powers, the organs of the state may interfere each other in accomplishment of their vested
functions and ends into conflicts, where there are conflicts among Government organs good
governance cannot occur. In the case of R v Kassella Bantu and others138 in this case in “1968
the magistrate in Tabora released Joseph Kassella Bantu on bail, pending the hearing in the
case, Kassella Bantu was charged of cattle killing with others in Nzega East constituency. The
magistrate who grants him bail was immediately detained on orders from above.” So in this case
is the conflict between judicial and executive because of executive interference on judicial
functions. So under this circumstance proper function of the Government cannot happen.
b. Interference on judicial / absent of independence of judiciary

There has been infringement of judicial powers in decision making in Tanzania by the Executive,
the Executive normally interfere judicial matters and makes judiciary not independent in judicial
decision. As in the case of James Bita v Idd Kambi in this case “the area commissioner (part
secretary) in Musoma wrote a letter to magistrate telling him that the land disputes pending in
the court was to be left for village council concern.”
138 1968
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c. Operation of the principle of delegation of powers

In Tanzania delegation of powers is guided by the Transfer and delegation of powers Act. Section
2(b) of the Act provides for the transfer of powers by the president by an order published in the
Gazette transfer of such powers to another person. Furthermore, section 3(1) (b) allows the
minister to delegate powers to other persons. In the case of Samwel Kubeja V R, the applicant
was initially the subject of a valid deportation Order but was subsequently served with the
resettlement order to resettle at Songwe resettlement centre. While at the centre he was confined
in a fenced fort and kept under a close guard by armed prison officers. He considered this
confinement to be unlawful detention and so filed an application for Habeas corpus.
d. The discretion of law enforcement and crime prevention agencies tends to

abuse their power.
In Tanzania these enforcers are like police officers to whom they perform their duty within the
country, and their job is to ensure the protection of the country, maintaining peace within the
country. Article 147 (2)139 the government of the united republic may, in accordance with the la,
raise and maintain` armed force of various types for the purpose of the defence and security of
the territory and the people of Tanzania. Article 147 (4)of the constitution of united republic of
Tanzania of 1977 says ... member in the service of the defence forces, the police force, the
prisons service, whether temporary or permanent term. Taking an example in dare s salaam the
student (akwilina) was shoot accidental by the police officer when they were perfuming their
duty such situation shows that power is being abused
Generally administrative agencies are given broad discretion to exercise their administrative
authority general confer right to exercise discretionary power to administrative agencies duties
however administrative agencies duties necessarily include the right the right to exercise
discretion in Tanzania the discretion of power normally affect the rule simply the government
had final say to the decision especially the president.
139 Cap 2 of 1977
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10.3.3 Importance of judicial review in control discretionary power140
Broadly speaking, judicial review of administrative action and legislation involves a process
whereby disputes about the effect of past allegedly unlawful action can be resolved and current
or proposed unlawful conduct can be stopped or prevented. In this way the courts provide a
check on the executive and legislative branches of government.
The jurisdiction conferred on the High Court is a crucial part of the doctrine of the separation of
powers. Underlying this doctrine is the principle that a strict separation of power between the
executive, legislative and judicial branches of government will help preserve democracy and
protect citizens from any abuse of government power.
a) It is an exercise of judicial power finally to determine whether or not conduct of the

executive branch is lawful141.
In this way the doctrine provides a constitutional basis for judicial review. It would be wrong,
however, to think that judicial review stems exclusively from this doctrine. Many countries that
do not have a formal constitutional separation of powers of the type seen in Australia
nevertheless have vigorous and effective judicial review processes. Indeed, that is the position in
the Australian states. The doctrine of the separation of powers, and the entrenchment of at least
some judicial review jurisdiction in the Constitution, show that the Constitution has, to this
extent, enshrined the public law values that underlie judicial review142.
As the term suggests, the rule of law is concerned with the lawfulness of official conduct not
whether the laws are wise or fair. Judicial review is thus not directed to the merits of a decision
in circumstances where Parliament has vested in an executive officer the power to make the
decision. It is not part of judicial review for a judge to replace a decision he or she considers
141 Administrative justice, in R Creyke & J McMillan (eds)
142 Administrative Justice—the core and the fringe: papers presented at the 1999
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wrong143. Judicial review and the rule of law are limited to consideration of whether a decision
was
b) Judicial review safeguards individual rights.
Judicial review is a mechanism whereby individuals are entitled to bring an action in the courts
to enforce a right or protect an interest by stopping unlawful conduct of the government or one of
its agencies. The grounds available in judicial review are designed to ensure that government
decisions are reached by fair procedures and are rational and lawful. Made within the limits of
the power or duty imposed on the decision maker144.
c) Judicial review plays an essential role in maintaining the accountability
In exercising administrative decision-making powers and ensuring that they are as much subject
to the law as the people affected by the exercise of such powers. This form of accountability
focuses the attention of primary decision makers and tribunals on acting lawfully. The prospect
that a decision might be reviewed encourages a decision maker to take responsibility for ensuring
that the decision is properly made according to law145.
d) Judicial review is consistency and certainty in the administration of legislation.
Although judicial review cases usually arise in an ad hoc way, individual cases often provide
guidance on the interpretation of legislation that affects many other people. In that way, judicial
review can have a broad ranging effect because of the precedential value of the court’s reasons
for decision. A judicial ruling on a matter of law is conclusive and binding on the executive
branch146.
143 Institute of Administrative Law, Canberra, p.84.
145 Administrative Justice—the core and the fringe: papers presented at the 1999
146 Gould livery report on administration of justice through review, revision and application
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10.4 OTHER CONTROLLING MECHANISM

a) Internal control
The term internal control refers to the type of controlling mechanisms that are set within the
organizational structure of the various administrative organs of the government. For
administrative convenience, administrative agencies usually have internal structure. Formally or
informally, original decisions of the authorities within the lower structure of the administrative
hierarchy are subjected to review by those in the next upper hierarchy. Internal review is the
process by which original agency decisions are reviewed on their merits within the responsible
government agency. An internal review officer can usually substitute a new decision if the
decision under review is found to be defective on matters of law, the merits or administrative
process. In some areas of government administration, there is a formal system for the internal
review of agency decisions. The internal review system in these areas is created and regulated by
legislation, in the same way as other review methods. Even where there is no statutory
requirement, it is common for an informal internal review system to be established on an
administrative basis within government agencies.
b) External control
The term ‘external control’ in administrative law context refers to the various limitations
imposed upon the powers of administrative agencies by other authorized bodies that are found
outside the structure of such agencies. These types of controlling mechanisms include
executive/political control, parliamentary/legislative control, and control by administrative
tribunals, judicial control, control by watchdog institutions and the mass media. Despite the
difference in the mode and scope of these controlling mechanisms, all of them have positive
contribution in promoting the principles of good governance.
c) Parliamentary Control
As was repeatedly stated earlier, while appreciating the importance of delegating powers to
administrative agencies in promoting efficiency and effectiveness in the administration and
implementation of public policies, it is equally important to take note that unless otherwise
safeguards are put in place, such power may be abused and used to promote evil motives. Having
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appreciated the side effects of delegation of rulemaking powers to administrative agencies, the
parliament can put effective checking mechanism in place. First and foremost, the parliament has
to make sure that all necessary precautions are taken that the enabling legislation/parent act does
not devolve wide delegated powers which may be difficult to control. These include attaching
riders to agency appropriation bills, conducting oversight hearings, reducing agency budgets, and
amending statutes. Of course, if the legislature is extremely dissatisfied with the performance of
a particular agency, it may rewrite the statute that created the agency in the first instance. By
amending the appropriate statute, the legislature may enlarge or contract the agency’s jurisdiction
as well as the nature and scope of its rulemaking authority.
d) Executive Control
The executive organ of the government also has the power to oversight the activities of the
various government offices in different modalities. As it was discussed somewhere else, there are
possibilities whereby some administrative agencies may be formed by executive order without
the blessing of the parliament. Those agencies or bureaus formed under the executive hierarchy
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TOPIC ELEVEN
11.1 THE PUBLIC SERVICE
In Tanzania the major law regulating the Public Service is the Public Service Act, 2002 (Act no.8
of 2002) as amended by Act no.19 of 2004, This Act repeals the Civil Service Act, 1989 (Act
no.16 of 1989). The latter Act replaced the Civil Service Act, 1962 (Cap 509).
The term ‘Public Service’ has not been defined in the Public Service Act rather as per section 3
of the Act, there is the term ‘the Service’ which has been defined to mean the public service of
the United Republic of Tanzania. However, under Regulation 3 of the Public Service
Regulations, 2003, public service has been defined to mean; “the system or organization
entrusted with the responsibility of overseeing the provision or directly providing the general
public with what they need from their government or any other institution on behalf of the
government as permissible by laws and include the service in the civil service; the teachers
service; the local government service; the health service; the immigration and the fire and
rescue service, the executive agencies and the public institutions service and the operational
service.”
The very same definition of public service is given under the Public Service Scheme, 2003. A
public servant has been defined under Section 3 of the Act to mean a person holding or acting in
a public service office. The term Public Service Office has been defined under the very same
section.
11.1 Organs of control of the public service

a. The president
Article 36 of the Constitution of the United Republic of Tanzania, 1977 as amended time to time
empowers the President to establish or abolish any office in the public service. The President has
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been conferred with numerous powers to appoint various officials in the public service. The
Public Service Act also confers the President power to appoint various heads in the public
service. Sections 4, 5, 9, and 14 of the Act envisage powers of the President to appoint various
persons to discharge various duties in various organs in public service.
Apart from power to appoint, the President also is conferred power to remove or dismiss public
servant from his office. The procedures in the event of a dismissal of a public servant from his
office are provided under section 23 of the Act. The power to remove is provided under section
24 of the Act.
The President has influence in a number of issues pertaining public service. That is, apart from
having power to appoint, remove and dismiss public servants from their offices, the President
also has the following role to play in as far as the Public Service is concerned;
 Responsible in filling vacancies in the public service

 Responsible in administering oath or affirmation to various officials appointed in various
posts of public service
 Responsible in approving such offices established to perform functions of the Public
Service Commission as per section 15 (2) of the Act
 Receiving report of annual operations of the Public Service Commission before it is
tabled before the Parliament
 Responsible in giving written permission to any person to disclose any information which
comes to the knowledge of the President in the course of performing his functions under
the Act.
 May delegate any such functions vested on him
 May act as an appellate organ in case of any such appeal arising out of a decision of any
disciplinary authority subject to the provisions of section 25 of the Act.
b. The chief secretary

The Chief Executive of the Public Service of the United Republic of Tanzania is the Chief
Secretary who is the appointee of the President. As per section 4(1) of the Act, the President is
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empowered to appoint the Chief Secretary who shall be the Chief Executive officer of the
service. The Chief Secretary is also the head of the public service and the secretary to the
11.2 Functions of the chief secretary

These are provided for under section 4(3) of the Act and they include;
a) To ensure that public servant in the service are motivated

b) To ensure that public servant in the service are efficient and effectively performing
c) To ensure that the service is free from corruption and other unethical tendencies.
d) To be responsible for confirmation of public servants appointed by the President
e) To improve public accountability by promoting focus on result, service quality and
customer satisfaction in public service performance
f) To be a disciplinary authority in respect of public servants appointed by the president
cabinet. His major role is to provide leadership, direction and image to the service.
He is under the law the highest ranking disciplinary authority in the service and may in that
capacity and in relation to any servant exercising all or any of the powers delegated to a
disciplinary authority.
Under section 5 of the Act there other Executives who also take part in the administration of the
public service and these are;
a) A Chief executive officer in respect of each ministry, extra ministerial department, region
or local government authority in the Government of the United Republic who also is
known as permanent Secretary for that Ministry
b) Regional Administrative Secretary for the Region or the Director of the local government
authority
c) A Chief Commanding Officer in respect of Immigration service
d) A Chief Commanding Officer in respect of the fire and rescue services
e) Deputy permanent secretaries and ambassadors
f) The Regional and District Commissioners
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As per section 6(3) every head of department or division shall be the authority in respect of the
appointment, confirmation and discipline of employees in the operational service under his
department or division.
The authority in respect of appointment, promotion, discipline and registration of teachers shall
be the Teachers Service Department established under section 15 of the Act. The general
administration of public service is on the hands of the Chief Secretary assisted by Permanent
secretaries.
11.3 The public service commission

It is established under section 9 of the Act. It is composed of a Chairman and not more than six
other members appointed by the President. The commission deals with all servants falling under
the categories of;
 The civil service

 The local government service
 The health service
 The teacher’s service
 The immigration and the fire and rescue services
 The executive agencies and the public institutional service
 The operational service
Section 9(6) sets out the persons who are not qualified for appointment as member of the
Commission.
Section 10(1) provides for the functions of the Commission and some of them include;
a) To assist the President in relation to such matters relating to the service as the President
may require
b) To issue guidance, to monitor and conduct merit based recruitment in the public service
c) To facilitate the appointment to posts in the public service
d) To ensure that service schemes are formulated and implemented effectively e. To
facilitate, monitor and evaluate performance by officials in the service to secure results
oriented management
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The Commission may require any employing authority to provide information which the
commission may need for carrying out its functions. Membership in this Commission ceases in
accordance with the provisions under Section9 (8) of the Act.
11.4 Employment contracts in public service

As per section 3 of the Act, a public servant is a person holding or acting in a public service
office. A person can serve in the service of the United Republic of Tanzania through appointment
to the public service office by any competent appointing authority through the laid down
procedures.
The term appointing authority has been defined under section 3 of the Public Service Act, 2002
to mean any person or authority exercising powers of making appointment to any public service
office. On the other hand the term ‘appointments’ has been defined under the Public Service
Scheme, 2003 to mean recruitment of persons in the Public Service and it includes first
appointments or appointments on promotion
As per Regulation 3 of the Public Service Regulations, 2003, Appointment may be;
 On Contract
 Temporary
 Part time
 Acting
 Permanent
 On Promotion
The terms of the Service are provided under Clause 29(1) of the Public Service Schemes, 2003
where such terms include;
 Permanent and Pensionable

 Agreement or Contract
 Temporary month to month
 Operational Service
 Daily paid
Appointments in the Public Service are governed by the;
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 Constitution of the United Republic of Tanzania 1977 as amended from time to time
 Act no.8 of 2002
 Public Service Regulations
 Public Service Recruitments Code of Practice
 Public Service Code of Ethics and Conduct
 Public Service Professional Codes of Ethics and Conduct
 Administration Instructions or Orders
The person to be recruited in the Public Service has to meet some necessary qualifications or
requirements provided under Clause 31 of the Public Service Schemes, 2003. Such qualifications
are;
 Academic qualification
 Professional Competency
 Age qualification
 Good character and integrity
 Experience
 Citizenship
Clause 32 of the Schemes provide for the persons who cannot be appointed in the Public Service.
In all processes of appointments, the principles governing selection shall be based on merits,
fairness, open competition and the prescribed qualifications. This is as per Clause 35 of the
Schemes.
In the process of appointment, where it happens that one of the candidates is aggrieved with
appointment procedure then he can complain to the appointing authority concerned and where
dissatisfied he can further appeal to the Public Service Commission.
Once appointed in the Service, a public servant has to be accountable to all his acts done under
his supervision. He will also be accountable to all those who are senior to him in his department.
The hierarchy of accountability is provided under Clause 39 of the Schemes. The most senior
public servant is accountable for the actions of all public servants below him.
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11.5 Termination of appointments in public service

As per Clause 45 of the Schemes, the appointment in the public service can be terminated/
determined or come to an end by either;
a. Removal or retirement on public interest

Removal in Public interest is provided under section 24 of the Act subject to the provisions under
Regulation 29 of the Public Service Regulations, 2003. The power to remove a person from the
office on the reasons of public interest is conferred to the President. Different from the Civil
Service Act, 1989, the Public Service Act when read together with its regulations requires
particulars of the grounds warranting the exercise of powers of the President
The term ‘remove’ and ‘retire’ were interpreted to mean one thing in the case of The Permanent
Secretary[Establiments] and A.G v Hilal Hamed Rashid & 4 Others Civil Appeal No.64 c/f
no.66 of 2002, Court of Appeal of Tanzania at Dar es Salaam[Unreported and that of The A.G v
Said Juma Shekimweri, Civil Appeal no.11 of 1998[Unreported]
b. Retirement on medical grounds

The procedure to terminate appointment of a public servant on medical grounds is provided
under Regulation 30.
c. Retirement on abolition of office or re-organization of department

The procedure on termination of a public servant on abolition of office or reorganization of
department for facilitating improvements in the organization of the office to which a public
servant belongs is provided under Regulation 31
d. Age of retirement
The procedure for termination of a public servant on age retirement is governed by provided
under Regulation 32. The compulsory age retirement is when a person attains the age of sixty
years. However one can voluntarily retire from his office upon attaining the age of fifty five
years. The provisions of this Regulation and Act have to read together with the Public Service
Retirement Benefits Act, 1999 (Act no.2 of 1999).
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e. Contesting constitutional leadership or elective political post

Termination of a public servant from the office upon contesting any constitutional leadership
post or any elective political post is provided under Regulation 34.
f. Retrenchment or redundancy
Under Act no.8 of 2002 the term Retrenchment has not been defined nor there is any section
providing for the procedure of how is it going to be undertaken. Even under Regulations this
term has neither been defined nor the procedures for it being described.
However under Section 38 of the Employment and Labour Relations Act, 2004(Act no.6 of
2004), Retrenchment is termed as termination for operational requirements. The term operational
requirements has been defined under Section 4 of Act no.6 of 2004 to mean requirements based
on the economic, technological, structural or similar needs of the employer.
Before any process of Retrenchment, the employer shall;
(i) Give notice of any intention to retrench

(ii) Disclose all relevant information on the intended retrenchment
(iii) Make proper consultation prior to retrenchment
g. Disciplinary grounds
Provisions relating to disciplinary authorities, disciplinary proceedings and all such matters
relating to discipline of public servants are found under Regulations 35-49 of the Public Service
Regulations, 2003.
Before and disciplinary action is taken against any public servant there must be;
 Preliminary investigation
 The public servant must be given notice of the charge against him
 The public servant must be afforded an opportunity to be heard
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During disciplinary proceedings, a public servant accused of any such allegations which requires
disciplinary action to be taken against him, may face any of the following from the disciplinary
authority;
 Relieved from his duties and functions pending the outcome of the investigation
 Interdiction-its meaning is provided under Regulation 3
 Suspension
 Where suspended, shall not be entitled to any salary. But shall be paid an alimentary
allowance
 Where dismissed shall lose some of his privileges
Dismissal of the public servant in accordance to the procedures under section 23 of the Act
requires that;
 A disciplinary charge has to be preferred against the public servant

 The public servant has been afforded adequate opportunity to answer the charge
 An inquiry has been held into the charge in accordance with regulations made under s.34
of the Act
Any public servant aggrieved with any decision from any of the disciplinary authorities has right
to appeal. This is a constitutional right provided under Article 13(6)(a) of the Constitution of
United Republic of Tanzania, 1977 as amended from time to time. However the Constitution
does not give a guarantee for one to Appeal in all proceedings. Such Constitutional right has to
be exercised subject to other written laws.
Right to appeal for a public servant in disciplinary proceedings is provided under Section 25 of
the Act read together with Regulation 60. The organs which can serve as appellate bodies in such
appeals from various disciplinary authorities are;
(i) The President

(ii) The Public Service Commission
The decision of any appeal by the President is final. The time to appeal is provided under
Regulation 61 and the procedures for one to appeal are provided under Regulation 62. Neither
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the Act nor the Regulations provide for the appeal to the ordinary court of law. This implies that
the only way for one to have access to the court is by way of Judicial Review, the power which is
vested only to the High Court and where one is further aggrieved by the decision of the High
Court can appeal to the Court of Appeal of Tanzania.
11.6 Rights which a public servant is entitled to have

Once appointed in the public service office, the Public Servant is entitled to have;
 On first appointment, free transport for himself, spouse and not more than four children
and two defendants from his home to the working station-Regulation 13
 Subsistence allowance-Regulation 13
 Promotion based on merit, effectiveness and efficiency in his performance, skills and
personal qualities-Regulation 15
 Remunerations-Regulation 20
 Salary in accordance to the salary scales for the public servants-Regulation 20
 Annual leave granted once per year-Regulation 97
 Better working environment and opportunity to have training and develop his skills
 Compensation for injuries or death arising out of and in course of employment-
Regulation 110
 Recognition and respect for his dignity regardless of hierarchy in the ServiceClause 40 of
the Schemes
 To claim and enquire on any issue pertaining his service, etc
11.7 Duties which a public servant have

While performing his functions in any public service office, the public servant shall have the
following duties
 Take all reasonable precautions to protect his health and any health hazards Regulation
106 and 110
 To be loyal to the President of the United Republic of Tanzania
 To respect and cooperate with his fellow at work place and elsewhere within the Public
Service
 Obediently implement the policies of the ruling party-Clause 49
 Be neutral and impartial while delivering service to the public-Clause 50
 Serve with high standard of wisdom and integrity-Clause 52
 To maintain confidentiality of all information which are confidential, etc
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TOPIC TWELVE
LIABILITY OF THE GOVERNMENT
12.0 Introduction
From beginning it was considered that the Government cannot be held liable in whatsoever. The
maxim that the ‘King can do no wrong’ was maintained for so long. However due to the increase
of State functions as for the shift from leissez fare to welfare State, the perception of holding
Government not accountable for wrongs committed seem to vanish. Therefore the immense
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expansion of governmental activities from the latter part of 19 th Century onwards made it
intolerable for the Government, in the name of Crown, to enjoy exemption from the ordinary
law147.
In England, in the eyes of law the Government was never considered as an ‘honest man’ 148,
therefore it was considered that it is fundamental to the rule of law that the Crown, like other
public authorities, should bear its fair share of legal liability and be answerable to the wrongs
done to its subjects149. This was once observed by Bracton in the maxim that ‘rex non debet esse
sub homine sed sub deo et sub lege, quia lex facit regem’ which means ‘The King must not be
under man, but under God and under the law, because it is the law that makes the King’.
However, as it is well-settled that the government has liability but the challenge has always been
the means of enforcing such liability since the rights depends on remedies and there was no
human agency to enforce the law against the King. The introduction of the Crown Proceeding
Act, 1947, the Crown was placed in the position of an ordinary litigant150.
12.2 Whether State is bound by Law

As discussed in preceding lectures, the governmental functions have increased, to the extent that
currently, State performs not only the ‘law and order’ functions, but as a ‘welfare State’, it
performs many non-sovereign and commercial activities as well. The important question is
therefore arising is151:-
 whether the State is subject to the same rights and liabilities which the statute has
imposed on the other individuals
 if so bound, to what extent the provisions of the statute can be enforced against the State
12.2.1. English Law

147 C.K. Takwani: Lectures on Administrative Law, p.350
148 Garner: Administrative Law,1963, p.215
149 Wade: Administrative Law, 1994,pp.819 - 20
151 Ibid
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The position in English law is that ‘no statute binds the Crown unless the crown was expressly
named therein’ that is ‘Roy n’est lie per ascum statute sl il ne soit expressiment nosme’ 152.
Therefore an Act of the Parliament is presumed not to bind the Crown in the absence of express
provision or necessary implication153. This principle is based on the well maxim that ‘the King
can do no wrong’. This general principle of the common law is preserved even under the
provisions of the Crown proceedings Act of 1947, vide S.40 (2) (f).
12.2.3. Tanzanian Law
Being under British rule during colonialism, Tanzania adopted the position of the common law;
however some developments have been done in respect of enacting relevant laws which explains
the status quo. The Government Proceedings Act, No.16 of 1967, provides inter alia that
Government as other private individuals is bound by the statute on which it is specified so, S.3
(3) of the Act. Moreover the Constitution of the United Republic of Tanzania, 1977, under
Article.13, declares the status of every person being equal under the law. Therefore since the
Government is civil rights and liabilities is treated as if were a private person of full age and
capacity (S.3 (1) of Cap.5) is subject to the law.
12.3 The Framework of Administrative Authorities in Tanzania

It is important to understand the framework of administrative authorities in Tanzania so as to be
able to appreciate the nature and extent to which the authorities could be held liable in course of
their functions and responsibilities.
Article 4 of the Constitution provides for the exercise of State authority of the United Republic
of Tanzania as follows:-
(1) All state authority in the United Republic shall be exercised and controlled by
two organs vested with executive powers, two organs vested with judicial powers
152 Ibid
153 Wade: Administrative Law, 1994,pp.839
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and two organs vested with legislative and supervisory powers over the conduct of
public affairs.
(2) 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 the Judiciary of
the Revolutionary government of Zanzibar; and the organs vested with legislative
and supervisory powers over public affairs shall be the Parliament of the Untied
Republic and the House of Representatives.
According to this Article the State authority have been generally divided into three organs, thus
the Government exercising executive powers, Judiciary exercising judicial powers and
Parliament exercising legislative and supervisory powers.
Therefore, according to the observation made, the scope of this discussion is to classify the
Government framework as one of the organs of the State.
a. The President of United Republic of Tanzania.

In Tanzania, the President is the Constitutional Head of State, the Head of Government and the
Commander in Chief of the Armed Forces, Article 33 of the Constitution. Article 34 of the
Constitution provide for the exercise of authority by the Government of United Republic of
Tanzania, whereas it is:-
 Vested with authority over all Union Matters in the United Republic and over all other
matters concerning Mainland Tanzania.
 Shall relate to the implementation and upholding of this Constitution and also to all other
matters over which Parliament has power to legislate.
 Vested with all the authority of the Government of the United Republic over all Union
Matters in the United Republic and also over all other matters concerning mainland
Tanzania shall vest in the President of the United Republic.
It also provides that the authority of the Government of the United Republic shall be exercised
by either the President himself or by delegation of such authority to other persons holding office
in the service of the United Republic, Article 34 (4) of the Constitution.
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It should be noted however, that in the exercise of his duties, the President is bound to abide to
the laws of the land. His actions can be questioned if he acts beyond his authorised powers. In
Said Juma Muslim Shekimweri v A.G154, Samatta J.K observed 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 law. Any ascertain that presidential powers have no
limitation would have no basis in law”
If the powers of the President are left unquestioned, then he would have unlimited executive
authority, but it is the rule of administrative law any administrative or executive act must have
legal source, thus any executive function of the President must be justified by law.
Article.35 of the Constitution provides that ‘all Executive functions of the Government of the
United Republic of Tanzania discharged by officers of the Government shall be so done on
behalf of the President, and whereas Orders and other directives issued for the purposes of this
Article shall be signified in such manner as may be specified in regulations issued by the
President in conformity with the provisions of this Constitution’.
Also Article 37 (1) of the Constitution provides that, apart from complying with the provisions
contained in this Constitution, and the laws of the United Republic in the performance of his
duties and functions, the President shall be free and shall not be obliged to take advice given to
him by any person, save where he is required by this Constitution or any other law to act in
accordance with the advice given to him by any person or authority.
Note: refer Article 33 – 46B of the Constitution on matters relating to the office of the President
of United Republic of Tanzania
b. The Vice President of the United Republic of Tanzania
154 Misc Civ Cause No.3 of 1996 H.C DSM (Unreported)
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In Tanzania, the Vice President is second in command after the President of the United Republic
of Tanzania. The Vice President is the principle assistant to the President in respect of the
following matters as per Article 47 (1) of the Constitution:-
 assist the President in making a follow-up on the day-to-day implementation of Union

Matters;
 perform all duties assigned to him by the President; and
 Perform all duties and functions of the office of President when the President is out of
office or out of the country.
The Vice President is elected on the same poll as the President, Article 47 (2) of the Constitution.
The Constitution also provides that when the President of the United Republic hails from one
part of the United Republic, then the Vice President shall be a person from other part of the
Union.
Also the Vice-President shall perform his duties under the direction and supervision of the
President and shall provide leadership and be answerable to the President in respect of any
matters or functions assigned to him by the President, as per Article 47(8) of the Constitution.
Note: refer Article 47 – 50 of the Constitution on matters relating to the office of the Vice
President of United Republic of Tanzania
c. The Prime Minister of the United Republic of Tanzania.
The Prime Minister of the United Republic is a person appointed by the President to hold a post
of Prime Minister. Before assuming his office he had to take and subscribe before the President
oath of office of Prime Minister in a manner prescribed by the Parliament as per Article 51(1) of
the Constitution.
Within 14 days of assuming his office, the President is bound to appoint a member of the
Parliament elected from a constituent from a political party has a majority of members of the
Parliament in the National Assembly or if no political party has a majority of the members of the
Parliament should appoint a person who appears to have the support of the majority of the
members of the Parliament. Such appointment must be confirmed with a resolution of the
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National Assembly supported by the majority vote of the members of the Parliament, Article.51
(2) of the Constitution.
The functions and authority of the Prime Minister are provided under Article.52 of the
Constitution, thus:-
 The Prime Minister shall have authority over the control, supervision and execution of
the day-to-day functions and affairs of the Government of the United Republic.
 The Prime Minister shall be the Leader of Government business in the National
Assembly.
 In the exercise of his authority, the Prime Minister shall perform or cause to be performed
any matter or matters which the President directs to be done.
Note: refer Article 51 – 53A of the Constitution on matters relating to the office of the Vice
President of United Republic of Tanzania
d. Ministers and Deputy Ministers

The President of United Republic has the duty to appoint ministers and the deputies as per
Article 55 of the Constitution. Both ministers and deputies shall be the members of the
Parliament. They are duty bound to exercise the duties as per offices which they have appointed
for. Thus ministers and deputies hold their offices at the pleasure of the President as per Article
58 of the Constitution.
Although the functions of each minister are determined by the President, but the ministers are
heads of each ministry which they are responsible for. Deputy Ministers assist the ministers in
discharging their duties and functions. Ministers have variety of powers and duties vested in
them by different statutes and are answerable to the Parliament. Therefore they are to carry out
their responsibility as according to law.
e. The Cabinet, Article 54 of the Constitution.

It is composed of the Vice President, Prime Minister, the President of Zanzibar and all Ministers,
whereas the President of the United Republic chairs the meeting of the Cabinet. Also the
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Attorney General shall attend all the meetings of the Cabinet but shall have no right to vote. The
major responsibility of the Cabinet is to advise the President on various issues.
f. The Public Service

The President is the head of the civil service who is assisted by ministers in the execution of civil
functions. If the ministers cannot personally exercise all the functions vested in them by law,
they delegate such functions to ministry officials. A description of civil service includes all non-
political officials and employment held under the State with the exception of the armed forces.
12.4 Administration of Public Service.

The Chief Secretary is the Chief Executive Officer of the Public Service. The Chief Secretary is
appointed by the President. He is the head of the public service and secretary to the cabinet. The
duties of the Chief Secretary includes:-
 To provide leadership, direction and image to the public service
 To ensure that public servants are trained, motivated, performs effectively and efficiently
and the service is free of corruption and unethical procedure
 To improve public accountability and promoting focus on results, service quality and
customer satisfaction in public service performance
 To be responsible for confirmation of public servants appointed by the President
 To be a disciplinary authority in respect of public servants appointed by the President
Every ministry, extra-ministerial departments, regional or local government authority in the
Government of the United Republic have the Chief Executive Officer known as Permanent
Secretary for the Ministry, the Head of that Extra – Ministerial Department or Regional
Administrative Secretary for the Regional or the Director of the Local Government Authority
who are appointed by the President as per S.5 (1) of the PSA.
All these chief executive officers in respective area of work, they have a duty to:-
 Pursue results oriented management and ensure that the public service is mission-driven
and performs efficiently and effectively
 Be the authority in respect of appointment, confirmation and discipline of public servants
other than those appointed by the President.
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12.4 Practice and Procedure in suing the Government

The law governing the procedure of suing the Government is the Government Proceedings Act,
No.16 of 1967, whereas it lays the procedure for the same. This is an Act to provide for the rights
and liabilities of the Government in civil matters, for the procedure in civil proceedings by or
against the Government and for related matters.
12.5 Classification of Governmental liabilities

S.3 (1) of the Cap.5 provides for scope upon which the Government could be held liable in civil
proceedings, thus it states that;
“Subject to the provisions of this Act and any other written law, the Government
shall be subject to all proceedings those liabilities in contract, quasi-contract,
detinue, tort and in other respects to which it would be subject if it were a private
person of full age and capacity and any claim arising therefrom may be
enforced against the Government in accordance with the provisions of this Act.”
This can be classified as follows:-
The Government is treated as a private person of full age and capacity, whereas is subject to all
proceedings in:-
a) Contract
b) Quasi – contract
c) Detente
d) Tort
e) others of civil nature
(a) Contractual liability

The law treats the Government as private person of full age with capacity. The Governmental
officials who are acting on behalf of the Government can perform various duties in their official
capacity including entering into different contract. Article 35 (1) of the Constitution provides that
all Executive functions of the Government of the United Republic of Tanzania discharged by
officers of the Government shall be so done on behalf of the President. Thus the President by
virtue of the powers conferred by the Constitution can delegate his powers to other officials of
the Government.
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Various legislations are enacted to give the Governmental officials powers to enter into contracts
on behalf of the government, such officials are like the President, Prime Minister, Ministers in
respective Ministries, Permanent Secretaries, Chief Executive officers on Governmental
Agencies etc. when these Governmental officials enters into contract the Government is bound
by such contract and has to perform accordingly, whereas failure to perform would amount to
breach of contract which the innocent party is entitled for remedy.
(b) Quasi – contract liability

The provision cited above, thus S.3 (1) of Cap 5, also provides that the Government can be liable
for quasi – contractual obligations. Thus in the view to protecting innocent persons, courts have
to apply the provisions of S.70 of the Contract Act [CAP 345.R.E.2002] which provides that;-
“ where a person lawfully does anything for another person, or delivers anything to
him, not intended to do it gratuitously and such other person enjoys the benefit
thereof, the latter is bound to make compensation to the former in respect of, or to
restore the thing so done or delivered”
This provision is explained that if the goods delivered are accepted or the work done is
voluntarily enjoyed, then the liability to pay compensation for the enjoyment of the said goods or
the acceptance of the said work arises. Thus, where the claim for compensation is made by one
person against another under S.70 of LCA, it is not on the basis of the fact that subsisting
contract between the parties, but on the basis of the fact that something was done by one party
for the other and the said work so done has been voluntarily accepted by the other party155. Thus,
the provision of S.70 of LCA prevents ‘unjust enrichment’ as explained by Lord Wright in
Fobrosa v Fairbairn156 in the following words:-
“Any civilized system of the law is bound to provide remedies for cases of what has
been called unjust enrichment or unjust benefit, that is, to prevent a man from
retaining the money of, or some benefit delivered from, another which is against
conscience that he should keep. Such remedies in the English Law are generally
different from remedies in contract or in tort, are now recognized to fall within a
155 Chatturbhuj,
156 (1942) 2 All ER 122
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third category of the common law which has been called quasi – contract or
restitution”
This doctrine applies as much to corporations and the Government as to private individuals,
therefore this provision may be invoked by the aggrieved party if the following conditions are
satisfied:
 That a person should lawfully do something for another person or deliver something to
him
 That in doing the said thing or deliver the said thing he must not intend to act gratuitously
 That the other person for whom something is done or to whom something is delivered
must enjoy the benefit thereof.
Thus, if these three conditions are satisfied, S.70 of LCA imposes upon the latter person the
liability to make compensation to the former in respect of, or to restore, the thing so done or
delivered.
(c) Tortious Liability

Tortuous liability of the Government is in vicarious nature. Since the State is a legal entity and
not a living entity, it has to act through human agency, i.e. through its servants. Thus it refers to
when the State can be held vicariously liable for the wrongs committed by its servants157.
Vicarious liability refers to a situation where one person is held liable for act or omission of the
other person. This implies that the master may be held liable for the torts committed by his
servants in the course of employment. The doctrine of vicarious liability is based on two
maxims:
 Respondeat superior (let the principal be liable); and
 Qui facit per alium facit per se (he who does an act through another does it himself)
It was observed by Lord Brougham in the case of Duncan v Finlater158, that:
“The reason that I am liable is this, that by employing him I set the whole thing in
motion; and what he does, being done for my benefit and under my direction, I am
responsible for the consequences of doing it”
158 (1839) 6 Cl & F 894
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It should be noted however, that the government cannot be joined as a necessary party where a
government official offends plaintiff beyond his scope of scheduled duties. For example, in the
case of Ismail G. Lazaro v Josephine Mgomela159, whereas an Assistant Commissioner of
Police slandered a police woman constable by calling her prostitute the Court of Appeal held
inter alia that slandering people was not part of his duties. He did that in his personal capacity
and that the government could not be held vicariously liable. The police officer could not
therefore hide behind the protection of the Government Proceedings Act.
In rev. Christopher Mtikila v the editor, business times & Augustine lyatonga Mrema 1993
TLR 60 (HC) The plaintiff sued the defendants in defamation for words uttered by the second
defendant, a Government Minister, and published by the first defendant. For the second
defendant, a preliminary point was raised and argued to the effect that because the alleged
defamatory words, if they were at all uttered, must have been uttered by the second defendant in
the course of discharging his ministerial duties, he cannot be sued in his personal capacity;
rather, the suit should be a suit against the Government in accordance with the Government
Proceedings Act 1967.
The court held that: By vicarious liability the master is liable for tortious acts or omissions of
the servant and the two are joint tort feasors; either or both of them can be sued;
Vicarious liability does not transfer the principal liability of the servant to the master; by
vicarious liability an employer is vicariously liable for torts committed by his servant; but that
does not absolve the liability of the servant for the tort he has committed;
Suing the Government under vicarious liability does not confer immunity on the servant of the
Government who actually committed the tort; the right to sue the servant is not affected by the
right to sue the master;
No provision of the Government Proceedings Act 1967 or any other legislation takes away the
common law right to sue a Government servant who commits a tort in the course of his
official duties;
159 Civil Appeal No.2 of 1986, CAT, DSM (unreported)
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here is no law conferring immunity upon Ministers or public officials from being sued
personally for torts they commit in the course of their official duties; when they are so sued in
their personal capacity, it is not a suit against the Government;
The vicarious liability of the master and the initial liability of the servant are two different
branches of liability.
12.5.1 Position in England

Under common law the Crown was afforded absolute immunity, thus could not be sued in torts
for wrongs committed by its servants in the course of employment. This stand was based on the
maxim that ‘the King can do no wrong’ as it was held in the case of Tobin v R of 1863, whereas
it was observed that if the Crown were liable in tort, the principle (the King can do no wrong)
would have seemed meaningless. However through the increase of governmental functions, the
stand was subjected to criticisms such as by Professor Dicey, Committee on Ministers’ Powers
and by the House of Lords in Adams v Nayor160. All these criticisms led to the enactment of the
Crown Proceedings Act of 1947, whereas the Government was placed in the same position as a
private individual, thus can be sued or sue for tortious acts.
12.5.2 Position in Tanzania

The position in Tanzania as regarding tortious liability is the same as in England since Tanzania
inherited the common law system. The governing law is the Government Proceedings Act of
1967, whereas it provides that the Government can be liable for actions of its servants as per S.3
(1) of the Act.
12.6 Procedure in suing the Government

(a) Notice requirement
Before the institutions of civil suit against the Government there is a mandatory requirement of
giving notice of 90 days as per S.6 (2) of Cap.5, which states as follows:
160 (1949) AC 543
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“No suit against the Government shall be instituted, and heard unless the
claimant previously 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”
Previously, the notice requirement was not there but there was consent requirement, whereas a
claimant had sought the consent of the Attorney General before suing the Government, or
Governmental officials. This previous requirement led to injustice on party of claimants because
in various occasions the consent was not granted. For example, in one instance, Scario Bruno
who was arrested in 1981 on allegation of having encashed a cheque fraudulently, he was injured
for such allegation because he was under custody for some time. He made his application to the
Attorney General for obtaining consent so as to sue the Government in 1984. At the time of his
death in 1987, the consent for the suit had not been granted. Even where a person in attempt this
requirement of getting the government consent, thus decide to sue a person in his own capacity
without joining the government, the government had the tendency of insisting to be joined as a
respondent. Worse, still once the government was joined, then it would immediately invoke the
requirements of the Government Proceedings Enforcement Act of 1967, relating to consent
requirements.
In the case of Patrick Maziku v G A Sebalili and Eight Others 161, where the plaintiff was suing
a Regional Commissioner in person for ordering the nationalization of his milling machines.
Following the Government request the trial judge allowed the government to be joined and then
order the plaintiff to comply with the statutory provisions relating to suits against the
government. However the Government did not grant such consent.
However, this practice of the Government was put to an end by the court in the case of Peter
Ngomango v Gerson M.K. Mwangwa & Another 162, Mwalusanya J, indicated that the
requirement to seek permission from the government in order to sue the same government was
dangerous as it contains no safeguards and effective control against any gross abuses by those
entrusted with the power to issue permits. He therefore, declared it void and unconstitutional.
161 Civil Cause No.3 of 1982 HCT at TBR (unreported)
162 Civil Cause No.22 of 1992, HCT DOM (unreported)
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This decision was quoted with approval by the Court of Appeal of Tanzania of Kukutia Ole
Pumbuni & Another v A.G and Another 163. From then onwards, a plaintiff need to give a 90
days’ notice to sue the government.
(b) Institution of the suit
After the expiry of the 90 days’ notice, the suit shall be brought against the Attorney General and
the copy of the plaint to be served upon the Government Ministry, Department or Officer that is
alleged to have committed the civil wrong on which the civil suit is based as per S.6 (3) of Cap.5.
(c) Place of Suing
All the suits against the Government shall be instituted in the High Court by delivering in the
Registry of the High Court within the area where the claim arose as per S.6 (4) and S.7 of Cap.5.
(d) Application of general law
All civil proceedings by or against the Government shall be instituted and proceeded with in
accordance with the procedure applicable in like proceedings between private persons as per S.8
of Cap.5. Therefore the general law as regard to civil cases, thus Civil Procedure Code is
applicable.
(e) Suits against the Government should be instituted against the Attorney General
All civil proceedings by or against the Government shall be instituted by or against the Attorney-
General. Provided that the Minister may by order published in the Gazette direct that any
particular civil proceedings or class of civil proceedings be instituted by any officer designated in
the order instead of by the Attorney-General as per S.10 of Cap.5.
(f) Nature of relief
The court is empowered to order any relief as if the case is between the private persons. S.12 of
Cap.5 provides that;
163 Civil Appeal No.32 of 1992 CAT Arusha.
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“In any civil proceedings by or against the Government the court shall, subject
to the provisions of this Act, have power to make all such orders as it has power
to make in proceedings between private persons and otherwise to give such
appropriate relief as the case may require.”
(g) Orders as to Costs
The costs in a suit to which the Government is a party shall be provided as if in the
private persons suits are concerned. This is has been provided in S.13 of Cap.5. Also the
proceedings relating with the interests that a decree debtor is owed to pay whereas the
Government is party shall be provided as if the private parties are concerned, as per S.15
of Cap.5
(h) Satisfaction of orders against the Government
Where a party has obtained a decree against the Government, a certificate to that effect
has to be issued stating particulars of the order to the Permanent Secretary to the Treasury
or such other Government accountant officer. The respective officer shall pay when
appropriate the amount due to the decree holder or his Advocate plus any interest
accrued. However, no execution, attachment or similar process shall be issued out of any
court for enforcing payment by the Government of any money or costs referred and no
person shall be individually liable under any order for payment by the Government or any
Government department or any officer of the Government as such of the money or costs,
this is per S.16 of the Cap.5.
Whereas on the other hand execution by the Government can be enforced as other private
persons as per S.17 of Cap.5.
Also it should be noted that suits against the Government are related to Central Government and
not the Local Government Authorities. The Local Government Authorities can be sued like other
corporate persons, thus not concerned with the Government Proceedings Act, whereas the suits
relating to Local Government Authorities are regulated by the Local Government (Urban
Authorities) Act, Cap.288.
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12.7 Procedure for Enforcing Basic Rights

The basic rights and duties became part of the Tanzanian Constitution after the enactment of the
Bill of Rights in 1984. It should be noted that any right or freedom is useful to the targeted
person(s) or community only if it can be enforced otherwise if is not enforceable it is as good as
having no such rights. It becomes important therefore that there should be a clear and elaborate
procedure through which one can effectively enforce his basic rights.
The procedure for the enforcement of basic rights in Tanzania is governed by the Basic Rights
and Duties Enforcement Act, No.33 of 1994. Note that Article 30 (4) of the Constitution
empowers the Parliament to enact legislation concerning the enforcement of the basic Rights.
Therefore, the Act was enacted to provide for the procedure for enforcement of Constitutional
Basic Rights, for duties and for related matters. Also, it should be noted that, however in some
cases provisions for fundamental rights and freedoms in this country have been less than
absolute. Limitations of rights in form of policy statements and law have always been
accompanied by the implementation mechanism of the same. In some instances where rights and
freedom have been completely deprived by the executive arm of the State, the other institution
which would have been expected to come up as savior, such as courts of law have failed to do so.
For example in United Republic v IGP, exparte James Mapalala and Mwinyi Juma
Athumani Upendo164, where two political activists were arrested and detained for a long period
of time without any legal basis. When they filed for habeas corpus proceedings some months
later, a freshly signed detention order was presented in court. When their Counsel protested
against their long illegal incarcellation prior to the date of detention order and requested the
judge to address the period of icarcellation prior to the signing of the detention orders, the judge
refused to do so. For him properly detention orders had been produced before him and that was
enough.
12.8 Enforcement of Basic Rights in Tanzania

Where any person alleges that any of the provisions of Article.12 -29 of the Constitution has
been or is likely to be contravened in relation to him, he may apply to the High Court for redress,
S.4 of the Act. The High Court is vested with the original jurisdiction in matters pertaining to
164 Misc Criminal Cause No.30 of 1966 HCT, DSM (unreported)
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MAGANGA M.J
basic rights, S.4 & 8 of the Act. Therefore, enforcement of fundamental rights and freedoms in
Tanzania is dependent on the courts of law, in particular the High Court and the Court of Appeal.
Thus, it is anticipated that the courts have to play their traditional role of ensuring dispensation
of justice to the society.
The role of the court in society was explained by Mweisumo,J in Joseph Kivuyo & Another v
Regional Police Commander Arusha & Another165, where he characterised the court of law in
the following terms:-
“This is the temple of justice and nobody should fear to enter it so as to battle his legal redress
as provided by the law of the land”
However, the higher judicial system in Tanzania is highly divided to the disappointment that
there are some judges seem to be activists while on the other hand others seems to be pro-State
and exhibits conservative attitude in deciding basic rights cases especially where the State is a
party.
Application to the High Court by the affected person is to be made by way of petition, S.5 of the
Act. It must contain the name and address of the petitioner, the respondent, grounds for
application, Articles of the Constitution violated has to be specified, particulars of the facts in the
petition (these should not include evidence – but statements of facts upon which a petitioner
seeks a relief from the court), S.6 of the Act.
By virtue of S.10 (1) of the Act, except in determination of whether an application is frivolous
(not serious) or vexatious (without sufficient grounds) or otherwise fit for hearing which may be
made by a single judge, the quorum of the High Court to hear the petition is three judges. In
considering the petition both oral and documentary evidence are allowed to be presented. The
determination of the petition is through majority decision.
According to the very wording of S.10 of the Act, unlike before, whereby a single judge could
hear and determine an issue relating to fundamental rights and freedom under Constitution, while
from 1994 onwards, it is mandatory to have three judges. This provision is one of the
controversial areas of the Act. Experience has shown that an issue might begin as simple issue of
165 Misc Civil Appl No.92 of 1978 HCT Arusha (unreported)
146
MAGANGA M.J
wages and without parties addressing the Constitutional issues on the matter, then the court suo
motto may rise constitutional issues in the matter being litigated, for example in a case of A.G v
Marwa Magori166, His Lordship, Nyalali C.J stated that:-
“Although it is true that neither of the parties raised the issue of constitutionality
of the Deportation Ordinance, we are satisfied that the learned trial judge was
correct in raising it suo motto for two reasons. Firstly, all courts of law in this
country are duty bound to take judicial notice of all constitutional and legal
matters. Secondly, the courts in this country are not the courts of the parties but
are courts of law and have thus inherent jurisdiction to raise and consider
matters to a fair and just decision of the case….provided that the parties are
given reasonable opportunity to respond to the matters that raised”
Since it is now a mandatory requirement to have three judges in determining matters

pertaining to basic rights and duties, it means that the moment the court raises a
constitutional issue in a case it cannot proceed with the matter any longer, thus the matter
has to be referred to three judges.
12.8.1 Criticism
 The procedure of a suit relating to the enforcement of basic right to be entertained by

three judges is wastage of time whereby it prolong the sufferings of the victim
 It is mistrust to the judicial personnel whereas they have been vested with powers to
determine cases of serious nature like murder and others on basis of single judge,
then why depriving the authority in determining the questions of violation of human
right.
 Delaying process of determination of the suits which is caused by few numbers of
judges, thus it may happen within a zone of High Court there are no three judges
thus others are to be requested from other zones.
 The Act takes away the power of the High Court to declare an act or omission which
violates the basic human rights to be unconstitutional but the High Court shall allow
the Parliament or other authority concerned to correct the defect within a period of
166 Civil Appeal No.95 of 1998 CAT MWNZ
147
MAGANGA M.J
time and until such correction or specified time such act or omission will still be
valid as per S.13 of the Act. Refer also Article.30 (5) of the Constitution.
12.9 Ouster Clauses (Exclusion Clauses)

These are clauses enacted in the law as an attempt of the Government or Legislature to exclude
or limit the jurisdiction of courts. This is to exempt a public authority from the jurisdiction of the
courts of law. It is the exclusion of judicial proceedings in respect of dispute resolution of which
is entrusted to the bodies other than the ordinary courts.
12.9.1 Types of Ouster Clauses

a) Direct exclusion ouster clauses
This deprives the powers of the superior court, e.g. the High Court of reviewing the
decisions of tribunals or other administrative bodies exercisable by means of certiorari.
E.g. S15 of the Regulation of the Prices Action of 1973 provides that; ‘No decision of the
Price Commissioner or Assistant Price Commissioner made or purporting to have been
made pursuant to any provision on this party shall be subject to review by any court on
any ground whatsoever’.
b) Finality clauses
These declare decisions by ministers and Tribunals as final and therefore not subject to
review by courts of law. E.g. S.9B (1) of the former Permanent Labour Tribunal Act of
1977 provided that, ‘upon receipt of a Report made by the tribunal in respect of any
matter referred to it under S.9A, the Minister shall make a decision in relation to the
matter contained in the report and that decision shall be final’.
c) Finality and conclusive ouster clauses

This also purports to ouster court’s jurisdiction to control administrative actions and
purports to make administrative authorities final and conclusive in their discharge of the
executive powers and discretion. E.g. S.25 of the Business Licencing Act of 1972,
provides, ‘every decision of the licensing authority, Principal Secretary and the
Minister or Appeal committee exercising the functions of the Minister or Principal
Secretary on appeal, shall be final and conclusive and shall not be subject to review by
any court’
148
MAGANGA M.J
d) Shall not be inquired, entertained or questioned in any legal proceedings’ ouster

clauses
These are very swiping ouster clauses which appear in several statutes of importance,
usually in the context where the legislation has itself provided a specific, though a limited
means of challenging and has then provided that except for the specific remedy, the act or
decision shall not be called into question in any other legal proceedings.
e) Subjective clauses
These are subjectively worded ouster clauses which purport to limit review by courts of
law of the administrative authorities. E.g. S.19 of the Civil Service Act 1989 provides
‘the president may remove a civil servant from the service of the Republic if he considers
it is the public interest to do so’.
REFFERENCES
BOOKS
Administrative Law and Procedure 1. C.J.S. Public Administrative Law and Procedure § 2.
Felix Frankfurter, the Task of Administrative Law, 75 U. Pa. L. Rev. 614, 615 (1927).
Dicey (1898), 1959, pp 188, 193, 195, respectively. And see Craig, 19
Curzon, Dictionary of. Law, 1994, p387
Craig, 1994a; Wade and Forsyth, 1994
A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn. (1959
C.K. Takwani: Lectures on Administrative Law, p.359
149
MAGANGA M.J
C.K. Takwani: Lectures on Administrative Law, p.350

Garner: Administrative Law, 1963, p.215
Flick, Geofrey, Natural Justice: Principles and Practical Application, p.86
STATUTES
The Constitution of United Republic of Tanzania of 1977
The Public Service Act, 2002 (Act no.8 of 2002)
The Civil Service Act, 1989 (Act no.16 of 1989).
The Government Proceedings Act Cap 5 RE 2002
The Interpretation of Laws Act cap 1 RE 2002
150

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MAGANGA M.

3.3.2 Power/ scope of judiciary.................................................................................. 25

7.2 Types and examples of administrative tribunals in Tanzania......................................64

10.2 Wide discretionary power................................................................................105

1.1 Montesque theory in Administrative law

a) Three functions of the government.

1.2 Nature and scope of administrative law

1.4 Function of administrative law

5 [1986] TLR 73 (HC)

7 Constitution of united republic of Tanzania of 1977 as amended from time to time

a. To check abuse of administrative

1.5 Sources of Administrative Law

ii) The statutes

iii) Case laws

8 Tanzania Electric Supply Company (Limited).

iv) Received laws

1.6 Constitutional law and Administrative law

1.6.1 Similarities between administrative law & constitutional law

1.6.2 Different between administrative law & constitutional law

Constitutional law Administrative Law

1. Creation of organs 1. Power to organs

Constitution just creates organs This law gives powers to organs.

Constitutional law Administrative Law

2. Dead law 2. Alive law.

It is dead law, as it does not It makes institutions active and

3. Law of rest 3. Law of motion

This law creates institution at once It gives movement to the

4. Macro level 4. Micro level

5. Limited scope 5. Widen scope

It is limited in scope. It is widen in scope.

6. Skeleton 6. Entire body

It is mere skeleton and remains It is apart from the skeleton and

Constitution is supreme law of the It is ordinary law in nature and

Its origin is parliament Only administrative authority

It deals with only three organs. It deals with only administrative

10. Power to delegate 10. S

Can delegate powers. Cannot relegate.

1.7 Growth of Administrative law

1.7.1 Reasons of Growth of Administrative law

b. The legislative process was also inadequate.

c. There is scope for experiments in administrative process.

d. The administrative authorities can avoid technicalities.

e. Administrative authorities can take preventive measures.

a. Collective ministerial responsibility

b. Individual ministerial responsibility

Shortcomings of the doctrine of ministerial responsibility

ii. Separation of powers

iii. Rule of law

iv. Independence of judiciary

3.1 EXECUTIVE/ GOVERNMENT

3.1.1 Power/ scope of executive

3.1.2 System of executive;

ii. Presidential System or Washington Model;

3.1.3 Types of executive in Tanzania

ii. Official Executive;

3.1.4 Structure of executive in Tanzania;

i. President as the Head of the State (HoS)

a. Declare the state of emergency and war; article 44

ii. The president as the Head of the Government (HoG);

iv. The President as the Head of the Public Services (HoPS);

a. Appoint senior government officials and may discipline or dismiss them;

3. The prime minister;

Is the head of executive in Zanzibar and chairperson of Zanzibar Revolutionary Council; He is