Moshi Co Operative University From The S

Moshi Co-operative University
From the SelectedWorks of MWAKISIKI MWAKISIKI
Summer April 9, 2017
ADMINISTRATIVE LAW IN
TANZANIA
MWAKISIKI MWAKISIKI, Moshi Co-operative University
This work is licensed under a Creative Commons CC_BY International License.
Available at: https://works.bepress.com/mwakisiki-
mwakisiki/5/
MOSHI CO-OPERATIVE UNIVERSITY
ADMINISTRATIVE
LAW
A STUDENT TRAINING MANUAL
PREPARED BY Tsar MWAKISIKI, MWAKISIKI,

EDWARDS
9/4/2017
This manual presents a comprehensive highlight on administrative law in Tanzania by covering essential topics that
will largely help law students to be equipped with relevant knowledge in administrative law and thus be in a pole
position to appreciate their realities in normal life. However this manual should only be a companion; candidates
are extremely advised to consult other Manuals, Case laws and Texts Books on Administrative Law.
Engineered by Tsar MWAKISIKI MWAKISIKI EDWARDS
TOPIC 1: INTRODUCTION TO ADMINISTRATIVE LAW
❖ MEANING OF ADMINISTRATIVE LAW

▪ Before posing any definition of the term administrative law it should be understood that
there is no omnibus or a universally accepted definition of the term, and thus various
scholars have attempted to define the term by confining it either to their field of study or
basing on their experiences. Hereunder are some of the definitions given by various
scholars:-
▪ Definition by Ivor Jennings1
▪ Administrative law is the law relating to the administration. It determines the organization,
powers and duties of the administrative authorities.
▪ Despite the fact that Ivor Jennings presents a widely accepted definition of administrative
law but has been criticized by Griffith and Street as follows: -
▪ It is a very wide definition which encompasses even substantive powers which might not
be falling within the scope of administrative law For example:- Legislation relations to
public health services, houses, town and country planning. But these are not included
within the scope and ambit of administrative law.
▪ It does not include remedies available to an aggrieved person when his rights are adversely
affected by the administration.
▪ It does not distinguish administrative law from constitutional law.
▪ Definition by Prof. Wade2
▪ Administrative law is the law relating to the control of governmental power. He argues that
the primary object of administrative law is to keep powers of the government within their
legal bounds so as to protect the citizens against their abuse.
1
The law and the constitution, 1959 as cited in C.K. Takwani (1994). Lectures on Administrative Law, (2nd Ed) at p.2
2
Administrative Law, 1967 as cited in C.K. Takwani (1994). Lectures on Administrative Law, (2nd Ed) at p.3
Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) -2-

▪ Definition by Griffith and Street 3

▪ Administrative law is the operation and control of administrative authorities, it must deal
with the following three aspects :-
▪ What are the limits of those powers?
▪ What sort of power does the administration exercise?
▪ What are the ways in which the administrative is kept within those limits?
▪ According to Black’s law dictionary 4
• Defines administrative law to mean the law governing the organization and operation of
administrative agencies (including executive and independent agencies) and relations of
administrative agencies with legislature, the executive, the judiciary and the public.
▪ Professor Issa G. Shivji (et al) 5
• Defines Administrative law in contrast with Constitutional law in the sense that, while
constitutional law provides for the institutions of the State and the government and
allocates power to different organs of the state, administrative law is another category of
public law which deals with how the public organs and officers are to exercise powers
including the limitation of the same powers.
➢ Generally, from the above presented definitions it can thus be construed that,
administrative law is that branch of public law which mainly deals with the exercise of
power and duties of administrative organs or authorities in relation to the general public
which is directly affected by their actions.
❖ SOURCES OF ADMINISTRATIVE LAW
❖ Essentially, administrative law just like any branch of law derives its principles from
various sources which may include but not limited to the followings:-
▪ The Constitution.
▪ Specifically, the Constitution of the United Republic of Tanzania, 1977 as amended
time to time is the foremost source of administrative law in Tanzania. It provides
for the praised principles of Rules of law, Separation of powers, Independence of
the Judiciary, Sovereignty of the people, safeguard of basic rights and supremacy
3
Principles of administrative law, 1963 as cited in C.K. Takwani (1994). Lectures on Administrative Law, (2nd Ed) at
p.4
4 th
8 Edition, 2004 at page 137
5
Constitutional and Legal System of Tanzania, 2004

of the constitution6.
▪ Various administrative organs derive their powers and functions from the
Constitution. Such organs include the President, Ministers, and local government
authorities just to mention a few. However the very same Constitution 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.
▪ The Executive actions are justified by the constitution and may be challenged in
courts of law where the actions are inconsistence with the constitution. This was
evidenced in the recent petition of Legal and Human Right Centre and
Tanganyika Law Society v. Honorable Mizengo Pinda and Attorney General
where the Prime Minister was quoted in the Parliament as saying that;
▪ “if you cause disturbance, having being been told not to do this, if you decide to
obstinate, you only have to be beaten up… and I am saying, you only have to be
beaten up… and I am saying you should keep on beating them because we don’t
have other means…”
▪ Even though the petition was struck out but the petitioners were aggrieved by the
quoted statement and challenged the same on ground that it contravenes
fundamental rights of the constitution of the United Republic of Tanzania, 1977
which prohibit violation of the right to life and seek to protect the rule of law and
natural justice particularly fair hearing.
▪ 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, and powers to maintain law, order and good
governance. 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. Examples of statute in this respect include
for example the Government Proceeding Act. [Cap 5 R.E 2002] and the Local
6
See Article 4, 8, 13, 107A, 107 B, & 64 (5)

Government Urban Authorities Act [Cap 288 R.E 2002] and Local Government
District Authorities Act [Cap 287 R.E 2002].
▪ Case laws or precedent
▪ 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
been a reliable place for a victim to run to and get his respective remedy. Hence
cases involving a dispute in administrative matter have been useful as sources of
administrative law.
▪ 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.
➢ Books by prominent jurists and opinions from prominent jurists also form basic source to
administrative law
❖ NATURE AND SCOPE OF ADMINISTRATIVE LAW
▪ This branch of public law deals mainly with powers of the administrative authorities, the
way in which such powers are exercised where there is misuse of such powers, then how a
person affected can be remedied. In this process this law regulates powers, procedures and
acts of public authorities. The law tries to harmonize social welfare with the rights of
individuals. When powers are properly exercised they lead to the so called ‘welfare state’
but when the contrary is true they lead to the so called ‘totalitarian state’. It is therefore the
role of administrative law to try to create a balance in the exercise of such powers conferred
upon administrative organs to ensure that there is no abuse of discretionary powers 7.
▪ IT’S SCOPE (Limit)
▪ Administrative Law as a law is limited to concerning powers and procedures of
administrative agencies. It is limited to the powers of adjudication or rule-making power
of the authorities. Thus, it is limited to:- Establishment, organization and powers of various
7
Extracted from C.K. Takwani (1994). Lectures on Administrative Law, (2nd Ed) at p.5

administrative bodies, Delegated legislation-the Rule-making power of the authorities,

Judicial functions of administrative agencies such as tribunals, Remedies available such as
Writs, Injunction, Procedural guarantees such as the application of principles of Natural
Justice, Government liability in tort Public corporations just to mention a few. 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.
❖ DEVELOPMENT OF ADMINISTRATIVE LAW
▪ For almost last two centuries there had been an increase in the general functions of state.
The traditional functions of a state such as securing the community against any external
invasion (aggression) and internal strife together with dealing with such mechanisms of
making the state be able to run itself (for instance through collection of taxes), have now
proved to be not the only main functions of the state in the contemporary modern world.
▪ Demographic revolution, increase in political activities, technological innovations and
inventions and so forth, have all extended the general scope of the functions of state beyond
those traditional ones. Involvement of public authorities in most of the aspects of life
proves the extent of such increase in the functions of the state. The state is involving now
in the general provision and distribution of various social services like education, health,
water and sanitation, power supply to mention but few. This increase in the functions of
the state has resulted into the growth and development of administrative law.
▪ With this development, evolution of the modern administrative law has seen modern
administrative law dealing with the way powers are acquired, how powers are distributed,
how the same powers are used, and how misuse of power is prevented and remedied.
▪ Hence this has given rise and development of a modern, complex and comprehensive kind
of public law which concerns itself with rules, procedures, regulations and legal principles
geared towards the control of governmental powers. Most of these powers emanate from
parliamentary legislations and others are mainly discretionary arising from the nature of
the administrative organ responsible in performing such powers.

❖ REASONS FOR THE GROWTH AND DEVELOPMENT OF ADMINISTRATIVE

LAW
▪ The following factors are responsible for the rapid growth and development of
administrative law 8:-
(1) There is a radical change in the philosophy as to the role played by the State. The
negative policy of maintaining 'law and order' and of 'laissez faire' is given up. The State
has not confined its scope to the traditional and minimum functions of defense and
administration of justice, but has adopted the positive policy and as a welfare State has
undertaken to perform varied functions.
(2) The judicial system proved inadequate to decide and settle all types of disputes. It was
slow, costly, inexpert, complex and formalistic. It was already overburdened, and it was
not possible to expect speedy disposal of even very important matters, e.g. disputes
between employers and employees, lock-outs, strikes, etc. These burning problems could
not be solved merely by literally interpreting the provisions of any statute, but required
consideration of various other factors and it could not be done by the ordinary courts of
law. Therefore, industrial tribunals and labor courts were established, which possessed the
techniques and expertise to handle these complex problems.
(3) 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 made by the legislature, they were found to be defective and
inadequate, e.g. Rate fixing. And, therefore. It was felt necessary to delegate some powers
to the administrative authorities.
(4) There is scope for experiments in administrative process. Here, unlike legislation, it is
not necessary to continue a rule until commencement of the next session of the legislature.
Here a rule can be made, tried for some time and if it is found defective, it can he altered
or modified within a short period. Thus legislation is rigid in character while the
administrative process is flexible.
8
C.K. Takwani (1994). Lectures on Administrative Law, (2nd Ed) at p. 5

(5) The administrative authorities can avoid technicalities. Administrative law represents
functional rather than a theoretical and legalistic approach. The traditional judiciary is
conservative, rigid and technical. It is not possible for the courts to decide the cases without
formality and technicality. The administrative tribunals are not bound by the rules of
evidence and procedure and they can take a practical view of the matter to decide complex
problems.
(6) Administrative authorities can take preventive measures, e.g. licensing, rate fixing.
Etc. Unlike regular courts of law, they have not to wait for parties to come before them
with disputes. In many cases, these preventive actions may prove to the more effective and
useful than punishing a person after he has committed a breach of any provision of law.
(7) Administrative authorities can take effective steps for enforcement of the aforesaid
preventive measures; e.g. suspension, revocation and cancellation of licenses, destruction
of contaminated articles, etc. which are not generally available through regular courts of
law.
❖ CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW
▪ Constitutional and administrative are two closely related subject area of law. There is thin
line demarcating constitutional and administrative law. However, in discussing the
constitutional law in a country such as Tanzania, we need to distinguish constitutional law
from administrative law.
▪ As pointed out by Wade and Bradley 9 “There is no precise demarcation between
constitutional and administrative law… may be defined as the law which determines the
organization, powers and duties of administrative authorities. Like constitutional law,
administrative law deals with the exercise and control of governmental power. A rough
distinction may be drawn by suggesting that constitutional law is mainly concerned with
the structure of the primary organs of government, whereas administrative law is
concerned with the work of official agencies in providing services and in regulating the
activities of citizens.”
9
Constitutional and Administrative Law 11th Ed, at page 10

▪ 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
motion10.
▪ The constitution is the superlative law of the state of which all other laws of the land are
subject to it, whereas administrative law, rules and regulations are subject to the
constitution. Where administrative law is inconsistence with the Constitution, the former
will easily be declared unconstitutional.
▪ Administrative law primarily concerned with the excise of powers by administrative bodies
or executive agencies actions, whereas Constitutional law establishes the supreme powers
of the states, the executive, judiciary and the parliament and set general principles for the
operations
▪ Administrative law establishes the general rights including basic human rights and duties,
whereas constitutional law set the mechanism and procedures on how the rights are to be
administered both at the supreme level and by the delegated authorities.
▪ Administrative law derive the authoritative principles from the constitutional law like
separation of powers, independence of the judiciary, natural justice and reasonableness of
administrative actions, whereas constitutional law lays the foundation for administrative
law principles of natural justice 11.
➢ One can therefore make a synthetic difference may be made by suggesting that
constitutional law is mainly concerned with the structure of the primary organs of
government, whereas administrative law is concerned with the work of official agencies in
providing services and in regulating the activities of citizens. Administrative law is directly
affected by constitutional structure of government because the administrative bodies are
set up or established by the function of the constitution itself.
❖ FUNCTION OF ADMINISTRATIVE LAW
▪ There are various functions of administrative law some of which are;-
1. Regulatory and Control function. Administrative law is there to regulate and control the
exercise of administrative powers by ensuring that both mandatory and discretionary
powers are properly exercised, that is, are exercised within the ambits of the law that confer
10
Hood Phillips, Constitutional and Administrative Law, 1962, p. 13
11
Draft Lectures on Administrative Law I/ 2014/2015 as reviewed 2015/2016 by KATABARO, Jackson.

such powers.
2. Imperative function. This is a commanding function which compels administrative organs
to perform such powers conferred to them from various sources.
3. To enhance good administration through adherence to the principles of natural justice and
other administrative principles
4. To enhance accountability, transparency in the process of governance. It is in the interests
of the public that for all such matters that affects individual rights, public authorities should
act in a manner that justice will manifestly seen to be done.
5. To enhance democratic participation of individuals in such matters that affects their rights.
An individual should be given an opportunity to participate in such a process to which the
end results of it might affect in one way the rights of such an individual.
6. To balance and harmonize conflicting interests between the interests of the community at
large and those of individuals.
❖ QUESTIONS FOR FURTHER REFLECTION
1. Define the term Administrative law. The growth and development of Administrative law
has no justification whatsoever in the contemporary system of administration. Discuss
2. Although the scope of administrative functions is wide yet not everything done by
administrative organs fall within the ambits of administrative law. Critically discuss this
contention.
3. Administrative law derives its justification from multiple numbers of authorities which act
as sources of this branch of public law. With vivid examples elucidate the validity of this
statement.
4. The difference between administrative law and constitutional law is not one which is
fundamental and in actual fact there is no clear or definite gap between the two laws. Is
this statement correct?
Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 10 -

TOPIC 2: THE PUBLIC SERVICE IN TANZANIA
❖ LEGAL FRAMEWORK FOR PUBLIC SERVICE IN TANZANIA

▪ 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)12.
▪ MEANING OF THE TERM PUBLIC SERVICE
▪ 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.
▪ Public service has been defined to mean13; “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 teacher’s 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.”
❖ ORGANS OF CONTROL OF THE PUBLIC SERVICE
▪ THE PRESIDENT
▪ Article 36 of the Constitution of the United Republic of Tanzania 14 , empowers the
President to establish or abolish any office 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.
12
Mr. innocent Lazaro Mgeta on Administrative Law
13
Regulation 3 of the Public Service Regulations, 2003,
14
[Cap 2 R.E 2002]

▪ 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 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 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 cabinet.
His major role is to provide leadership, direction and image to the service.
▪ The main function of Chief Secretary as provided under section 4(3) of the Act, among
other things is to ensure that public servant in the service are motivated and to ensure that
public servant in the service are efficient and effectively performing.
▪ 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 and The teachers service just to mention a few.
▪ Section 10(1) provides for the functions of the Commission and some of them include; to
facilitate the appointment to posts in the public service and to ensure that service schemes
are formulated and implemented effectively.
▪ 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 or 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 and Daily paid.
▪ Appointments in the Public Service are governed by the; 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 and 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 and Citizenship.
▪ TERMINATION OF APPOINTMENTS IN PUBLIC SERVICE
▪ As per Clause 45 of the Schemes, the appointment in the public service can be terminated
or determined or come to an end by either; Removal or retirement on public interest as per
section 24 of the Act.
▪ A public servant may Retire on medical grounds as provided under Regulation 30,
Retirement on abolition of office or re-organization of department as per Regulation 31 or
by reasons of Age of retirement as per under Regulation 32 which is 60 years.
▪ RIGHTS WHICH A PUBLIC SERVANT IS ENTITLED TO HAVE
▪ Once appointed in the public service office, the Public Servant is entitled to have among
other things, Subsistence allowance-Regulation 13, Remunerations-Regulation 20, Salary
in accordance to the salary scales for the public servants-Regulation 20 and Annual leave
granted once per year-Regulation 97.

▪ DUTIES WHICH A PUBLIC SERVANT HAVE

▪ While performing his functions in any public service office, the public servant among other
things shall have the following duties, Take all reasonable precautions to protect his health
and any health hazards-Regulation 106 and 110, Obediently implement the policies of the
ruling party-Clause 49, Be neutral and impartial while delivering service to the public-
Clause 50 and Serve with high standard of wisdom and integrity-Clause 52.
▪ QUESTIONS FOR FURTHER REFLECTIONS
1. The system of administration of public service in Tanzania is folded in such a way that
there is no clear legal framework that provide for specific organs which deal with the
welfare of public servants in Tanzania. Critically examine the validity of this statement.
2. The powers of the President in as far as issues relating to public service in Tanzania are
concerned, are enormous to the extent that when they threaten the major aim of the law in
ensuring that public service is improved and becomes efficient in its operations. Discuss
3. The laws regulating public service in Tanzania guarantee for welfare of a public servant
from the start of his/her service till the end of it. And there is no way the security of tenure
of a public servant can be put into jeopardy through any administrative act. With authorities
justify this argument.

TOPIC 3: POWERS, LIMITATIONS AND CONTROL OF ADMINISTRATIVE

AUTHORITIES
▪ Meaning of power
▪ Refers to the ability conferred on person or body by law to determine, by his own will
directed to that end, the local relations of himself or others.
▪ Powers can either be, Public like those which are vested by the state in its agencies or
employees, Private to include those entrusted on one person against another normally in
private relations OR General-those which are by law incident to an office.
▪ Mode of exercising power
▪ The exercise of power may be discretionary or mandatory. It is discretionary when there is
freedom of choice put on a competent authority to decide whether to act or not whenever
deemed fit so to do. It is mandatory when there is duty to act and failure to do so raises
legal consequences.
▪ Classification of administrative actions/powers
▪ The administrative law has classified actions of the administration into three, namely,
“administrative”, “legislative”, “judicial” or “quasi- judicial”15.
▪ Just as the government of a country is divisible into three functional components, viz.,
Legislative, Judicial and Executive, so are the powers conferred on the Administration,
which are classified into:-
▪ (i) Legislative Power: which in administrative law parlance is known as Delegated
Legislation? Legislation might be defined as the making of general rules to govern future
conduct (Public Acts of the Parliament)
▪ (ii) Adjudicative power which is generally characterized as quasi-judicial or adjudicative
power. Administration is considerably more difficult to define. It may be taken to mean the
application of general rules to particular cases by the making of some order or some
decision or by performing some action.
▪ (iii) Administrative power, which is non-legislative and non-adjudicative in nature. The
central case of judicial function is the final and binding resolution of disputes as to facts,
or as to the existences or the scope of legal rights or duties, by means of finding facts
15
C.K. Takwani (1994). Lectures on Administrative Law, (2nd Ed) at p. 39

deciding what the law is and applying the law to the facts. They include administrative
instructions, formulation of policies and of alike.
❖ 1. LEGISLATIVE POWERS
▪ Ideally, the function of making law is an exclusive province of the Parliament by virtue of
the doctrine of separation of power enshrined under Article 4 of the URT constitution as
amended time to time, but due to various reasons such as shortage of time in legislating the
legislature may confer its law making power to administrative organs to meet the local
variation
▪ Thus the by-laws, regulation, orders, circulars, rules made by these administrative organs
are technically termed as delegated/secondary/subsidiary/subordinate legislations.
▪ Meaning of delegated legislation
▪ Delegated legislation is a legislation made by subordinate authority duly authorized by an
Act of the Parliament to do so for a certain purpose and they can be orders, regulations or
notice or by law.
▪ Section 4 of the Interpretation of Laws Act16, defines subsidiary legislations to mean any
order, proclamation, and rule, rule of court, regulation, notice, by-law or instrument made
under any Act or other lawful authority. Following the provision of the definition provided,
it may not be wrong to equate subsidiary legislation to delegate.
▪ Forms of delegated legislation
▪ According to Takwan17, delegated legislation may take several forms. They may be normal
or of the exceptional type; they may be usual or unusual; positive or negative skeleton or
Henry viii clause. Therefore delegated legislation classified into (i) title based legislation
example by- laws, notification, schemes, orders, ordinances (ii) discretion based
classification that conferred on the executive to bring the Act into operation on fulfillment
of certain condition like condition or contingent legislation (iii) purpose based legislation
includes the nature and extent of power to be exercised (iv) Authority based legislation 18.
16
[Cap 1 R.E 2002]
17
Takwani CK (2006) Administrative Law 3rd ED Eastern Book co, Luck now Delhi. At p. 63
18
Takwani CK (2006) Administrative Law 3rd ED Eastern Book co, Luck now Delhi. At p.63

▪ Legal Justification of delegated legislations

▪ The Legal basis of delegated legislations in Tanzania is found under Article 97(5) of the
Constitution of the United Republic of Tanzania of 1997 as amended time to time, where
according to this Article the parliament is not precluded by the constitution to confer it’s
power of making laws to any person or department of government 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. Generally despite the legislature is conferred
with powers under Article 64(1) (2) , but Article 97(5) of the Constitution of the United
Republic of Tanzania as amended time to time empower the parliament to delegate those
powers to other organs or department to enact laws .
▪ In that sense, the local government authorities (Urban and Rural) which are established
by virtue of Article 145 of the Constitution of United Republic of Tanzania, has
given such powers by legislature to make subsidiary legislation on its behalf.
▪ For example section 153, 160 and 168 of the Local Government District Authorities
Act , provides legislative power for District authorities to make their own bylaw for
the people of that specified areas. The same power is enjoyed by urban authorities
as it is stipulated by section 88, 89, 90, and 94 of the Local Government Urban
Authorities Act.
▪ 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 & 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."

▪ Reasons for delegated legislation19

1. Pressure upon parliament time
▪ It avoids overloading the limited Parliamentary timetable as delegated legislation can be
amended and or made without having to pass an Act through Parliament, which can be
time consuming. Changes can therefore be made to the law without the need to have a new
Act of Parliament and it further avoids Parliament having to spend a lot of their time on
technical matters, such as the clarification of a specific part of the legislation.
2. Technicality of experts of certain matters
▪ Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is
required. Members of parliament may be the best politicians but they are not expert to deal
with highly technical matters. These matters are required to be handled by experts. Here,
the legislative power may be conferred on experts to deal with the technical problems such
as those concerning gas, atomic energy, drugs, electricity just to mention a few.
3. Emergences
▪ In times of emergency, quick action is required to be taken. Delegated legislation can deal
with an emergency situation as it arises without having to wait for an Act to be passed
through Parliament to resolve the particular situation. For example in times of war and in
cases of epidemics (Sudden disease), floods, inflation (increase and fall of price), economic
depression (decline) and other national emergencies, the executive is vested with extremely
wide powers to deal with the situation.
4. Experiment
▪ The practice of delegated legislation enables the executive to experiment. This method
permits rapid utilization of experience and implementation of necessary changes in
application of the provisions in the light of such experience.
▪ For example, in road traffic matters, an experiment may be conducted and in the light of
its application necessary changes could be made. The advantage of such a course is that it
enables the delegate authority to consult interests likely to be affected by a particular law,
make actual experiments when necessary and utilize the result of his investigation and
experiments in the best possible way. If the rules and regulations are found to be
19
C.K. Takwani, (1994). Lectures on Administrative Law, (2nd Ed) at p. 62-63

satisfactory, they can be implemented successfully. On the other hand, if they are found to
be defective, the defects can be cured immediately.
5. Flexible situations
▪ Delegated legislation can be used to cover a situation that Parliament had not anticipated
at the time it enacted the piece of legislation, which makes it flexible and very useful to
law-making. Delegated legislation is therefore able to meet the changing needs of society
and also situations which Parliament had not anticipated when they enacted the Act of
Parliament. E.g. bank rate, police regulations, export and import, and foreign exchange.
6. Complexity of modern administrative law
▪ The complexity of modern administration and the expansion of the functions of the state
to the economic and social sphere have rendered it is necessary to resort to new forms of
legislation and to give wide powers to various authorities on suitable occasions. In a
country like Bangladesh, where control and regulation over private trade, business or
property may be required to be imposed, it is necessary that the administration should be
given ample power to implement such policy so that immediate action can be taken.
▪ Advantages and disadvantages of delegated legislation20
▪ Delegated legislation saves parliament time in making the law, as it avoids overloading the
limited parliamentary timetable as delegated legislation can be amended and or made
without having to pass an Act through Parliament, which can be time consuming.
▪ Moreover, delegated legislation can easily incorporate expert’s ideas in making law
patterning certain matters that are technical in nature.
▪ Nevertheless, delegated legislation plays a great role to the society at large as it allows the
participation of individuals in the affairs of their government.
▪ Not only that, but also delegated legislation are best in responding to emergence situations.
For example in case of eruption of diseases or floods the delegated legislation can be passed
quickly to respond to such emergencies.
▪ Furthermore, delegated legislation enables the government to experiment as its practice of
enables the executive to experiment. This method permits rapid utilization of experience
20
Retrieved From http://mwakisikimwakisiki.blogspot.com/2017/06/advantages-and-disadvantages-of.html

and implementation of necessary changes in application of the provisions in the light of

such experience.
▪ Last but not least, unlike the principle legislation, delegated legislation are flexible as they
may cover situations that the parliament had not anticipated at the time it enacted the piece
of legislation, which makes it flexible and very useful to law-making .
▪ Despite the fact that delegated legislations have several advantages in Tanzania but such
legislations are also characterized by several disadvantages as it shown below:
▪ Firstly, delegated legislations may be challenged under the supremacy of the enabling
Act and the supremacy of the constitution
and declared void while principal legislation even if challenged remains valid until
parliamentary amendment process.
▪ Secondly, delegated legislation sometimes are criticized for violating the doctrine of
separation of power, in the sense that by that doctrine making the laws or legislation is the
main domain of legislature and therefore with delegated legislation such power will be
exercised by other bodies hence violation of doctrine of separation of power.
▪ Thirdly, delegated legislations may be inconsistent with the constitution and infringe some
people’s rights.
▪ Finally, delegated legislations may contain too technical and ambiguous words that possess
challenges to the general public to understand what they mean.
❖ FUNCTIONS WHICH CAN BE DELEGATED (PERMISSIBLE DELEGATION)21
▪ Commencement (the beginning of something.)
▪ Several statues contain an 'appointed day' clause, which empowers the government
to appoint a day for the act to come into force. In such cases, the operation of the
act depends on the decision of the government.
▪ Supplying details
▪ If the legislative policy is formulated by the legislature, the function of supplying
details may be delegated to the executive for giving effect to the policy. What is
delegated here is an ancillary function in aid of the exercise of the legislative
function.
21
C.K. Takwani, (1994). Lectures on Administrative Law, (2nd Ed) at p. 78

▪ Modifications
▪ Sometimes, provisions are made in the statute authorizing the executive to modify
the existing statute before application. This is really a drastic power as it amounts
to an amendment of the act, which is a legislative act, but sometimes, this flexibility
is necessary to deal with the local conditions.
▪ Prescribing punishments
▪ In some cases the legislature delegates to the executive the power to take punitive
actions.
▪ 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.
▪ Exclusion
▪ There are some statutes which empower the Government to exempt from their
operation certain persons, territories, commodities, etc. The Legislature which is
burdened with heavy legislative work is unable to find time to consider in detail
hardships and difficulties likely to result in enforcing the legislation.
▪ Suspension
▪ Some statutes authorize the Government to suspend or relax the provisions
contained therein.
▪ Application of existing laws
▪ Some statutes confer the power on the executive to adopt and apply statutes existing
in other States without modifications (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.
▪ Framing of Rules
▪ A delegation of power to frame rules, bye-laws, regulations, etc. is not
unconstitutional, provided that the rules, bye-laws and regulations 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.

❖ FUNCTIONS WHICH CANNOT BE DELEGATED (IMPERMISSIBLE

DELEGATION)22
▪ Despite the fact that the parliament have delegated power to the executive make some
laws but there are some functions which cannot be delegated (impermissible of
delegation) because the essential legislative function belong to the parliament.
▪ Section 36 of the Interpretation of the Laws Act 23 provides for the restriction of the
applicability of the delegated legislation Those matter cannot be delegated includes
repeal of law modification of law, exemption, removal of difficulties, retrospective
operation, future Act, imposition of tax ouster of jurisdiction of courts, offence and
penalty24, as briefly discussed hereunder;-
▪ Essential legislative functions

▪ It is now well-settled that essential legislative functions cannot be delegated by the
legislature to the executive. In other words, 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.
▪ 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.
▪ Modification
▪ Power to modify the Act in its important aspects is an essential legislative function and,
therefore, delegation of power to modify an Act without any limitation is not
permissible.
▪ Future Acts
▪ The legislature can empower the executive to adopt and apply the laws existing in other
States, but it cannot delegate the power by which the executive can adopt the laws
which may be passed in future, as this is essentially a legislative function.
22
C.K. Takwani, (1994). Lectures on Administrative Law, (2nd Ed) at p. 83
23
[CAP 1 R.E 2002]
24
Takwani CK (2006) Administrative Law 3rd ED Eastern Book co, Luck now Delhi. At p.83

▪ Ouster of jurisdiction of courts

▪ The legislature cannot empower the executive by which the jurisdiction of courts may
be ousted. This is a pure legislative function.
❖ CONTROL OVER DELEGATED LEGISLATION
▪ The general principle of delegated legislation is that it must be consistent with the
Parent Act and cannot travel beyond the legislative policy and the standard lay
down by the legislature, thus they have to be exercised in conformity with the parent
Act that confers such powers.
▪ The essence is to ensure that rules, by-laws, regulations, which made by delegated
authorities, are not travel beyond the legislative policy, if they go beyond that the
legislation enacted will be held ultra-vires, with no any legal effect.
▪ From the aforesaid discussion, the control over delegated legislation in Tanzania
can mainly be categorized in two categories such as judicial control and
legislative control of delegated legislation.
▪ Other means of controls performed by other organs such as Prime Minister’s
Office-Regional Administration and Local Government, Ministry of Constitution
and Legal Affairs, Regional Commissioners Office just to mention few.
❖ JUDICIAL CONTROL
▪ In the case of Jama Yusuph v. Minister for Home Affairs25, the court noted that;
“….The principle is that if an administrative authority is acting within its
jurisdiction, and no appeal from it is provided by statute, then it is immune from
control by a court of law. But if it exceeds its power, or abuses them so as to exceed
them, a court of law can quash its decision and declare it to be legally invalid.”
▪ Rules, by-laws, regulations, etc which are enacted by administrative authorities are
normal subject to control by the court by invoking the doctrine of ultra vires 26.
▪ The doctrine of Utra-vires comes into play where the legislating body or person
sidesteps procedures or substantive matters provided in the Enabling Act or other
laws of the land. The doctrine was fully embraced in the celebrated House of lords
25
[1990] TLR 80
26
Conversely, Inta vires. The making Authority is said to be intra-vires where the making procedures are consistence
with the Enabling Act or otherwise the subsidiary legislation may be challenged for the procedural Ultra-vires. See
Section 36 & 37 of Cap 1

decision in the the case of Ashbury Railway Carriage and Iron Co. v Riche 27,
where in this case the Company was incorporated under the Companies Act, 1862
to make, sell or lend on hire all kinds of railway plant. The Company entered into
a contract to construct a railway line. The act of the company was held to be ultra
vires.
▪ Another landmark case which propounded the doctrine of ultra vires in Tanzania is
the case of Sheikh Mohamed Nasor Abdullah v. The Regional police of Dar es
Salam and two others 28. In this case the issue was whether the president has power
to deport person from Tanzania mainland to Zanzibar. It was held that, the order of
deportation against the applicant was unlawful hence be set aside and the applicant
be released unless he is otherwise lawful held restricted. Therefore administratively
the president acted ultra vires.
▪ In the other case of Chunchua s/o marwa .v. Attorney General and another29,
where the court held that the president on his own authority conferred to him by the
law, could not deport a person from one part of the country to another without any
justifiable reason, and therefore he acted ultra vires.
▪ This doctrine is mainly applied in two tests, the first test is procedural ultra vires
and the second test is substantive ultra vires.
❖ SUBSTANTIVE UTRA VIRES
▪ In substantive ultra vires the courts checks if delegated legislation has gone beyond
the scope of authority conferred on it by the constitution or by the parent statute,
this is to say in making of delegated legislation in Tanzania, the authorities required
to act within the power conferred to them by the legislature, failure to that the
legislation will be declared by the court to be null and void.
▪ The case of Kruse v Johnson30, is a good illustration of this. The Kent County
Council made the by-law which stated; “No person shall sound or play upon any
musical or noisy instrument or sing in any public place or highway within fifty
yards of any dwelling house after required by any constable, or by an inmate of
27
[1875] 7 H.L 653
28
[1985]TLR 1
29
[1998] A.C 538
30
[1898] 2 Q.B 91

such house personally, or his or her servant to desist”. The by-law was held to be
unreasonable.
▪ In Tanzania it is well explained in section 36 (1) of the Interpretation of the Laws
Act31, that subsidiary legislation shall not be inconsistent with the provisions of the
written law under which it is made, or of any Act and subsidiary legislation shall
be void to the extent of any such inconsistency.
▪ A delegated legislation may be challenged on the ground of Substantive ultra vires
if any of the following occurs; where the parent Act is unconstitutional, where the
delegated legislation does not conform to the parent Act, Where the delegated
legislation is unconstitutional, where it’s Unreasonableness, Mala fide, Sub
delegation, Exclusion of judicial review or has a Retrospective effect.
▪ PROCEDURAL UTRA VIRES
▪ In Procedural ultra vires the court checks on subordinate legislation if they fail to
comply with procedural prescribed by the parent Act or by a general law.
▪ This is to say while framing rules, by-laws, regulations, etc; the delegated
authorities are required to observe the procedure prescribed by the parent Act or
enabling statute.
▪ The procedure includes consultation to some persons or group of persons who are
likely to be affected by a particular legislation, publication of drafts, rules or by-
laws, laying legislation before the Parliament, Requirement of notice of intention
to make subsidiary legislation by a particular authority just to mention a few.
▪ However procedural requirements will only invalidate delegated legislation where
such requirements are mandatory.
▪ It is a principle in administrative law that the delegates are required to comply with
these procedures and exercise the power in a manner indicated by the legislature.
▪ In Tanzania, various procedures prescribed in the laws to ensure control of
delegated legislation. Example in section 37 (1) (a) of the Interpretation of the laws
31
[CAP 1 R.E 2002]

Act 32 , provides a requirement for publication of subsidiary legislation that all

subsidiary legislation made under any Act of parliament shall be publicized.
▪ In a case of Fatuma Awadhi Said 33, the court of Tanzania provides the importance
of publication by showing the intention of each publication.
▪ Nanal Damodar Kanji v. Tanga Township Authority 34, the facts in briefly is
that: the accused owned a house, which was situated at the corner of Akida No. 6
Street in the township of Tanga. On the 12 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 Rule which says “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 court held that
“Rules and by-laws made under statutory powers enforceable by penalties are
construed like other provisions which encroach the ordinary rights of persons. They
must, on pain of invalidity, be not unreasonable, nor in excess of the statutory
power authorizing them, nor repugnant to that statute or to general principle of
law”.
▪ In this case rule 25 which used to convict an accused person was contradicting the
presumption of innocence as a general principle of law which requires an accused
person to be presumed innocent until he is proved guilty.
▪ In R v. Hermitte35, the appellant was convicted and fined under a by-law made
under section 69 of the Local Government (Municipalities) Ordinance 1928, which
reads “No person shall create any disturbance so as to be an annoyance to any
residents or passengers”. It is important to note that the said by-law does not specify
in what circumstances and in what place (whether a public place or a private
residence) a disturbance would fall within the meaning of the by-law. On appeal it
was contended that the by-law was ultra vires inter alia because it is (was)
32
[CAP 1 R.E 2002]
33
[1990] TLR
34
[1940] 1 T.L.R. 239
35
[1938] 18 K.L.R 55.

uncertain”. It was held that the by-law in question was uncertain, unreasonable and
ultra vires of the powers conferred on the Municipality and therefore null and void.
❖ CONTROL OF DELEGATED LEGISLATION BY LEGISLATIVE ORGAN
▪ This is another model of control over delegated legislation vested to the legislative
organ in Tanzania. The function is automatically vested to the parliament due to the
reason that in a parliamentary democracy it is the function of the legislature to
legislate.
▪ As pointed out in Lohia Machines Ltd .v. Union of India36, that the underlying
object of parliamentary control 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.
▪ In Tanzania the parliament is watching delegated legislation mainly in two ways:
one is through laying legislation on the table before the House and second is
through scrutiny of legislation which is done by specific committee.
▪ Laying on Table; This is intended to serve two purposes, that is, to inform the
legislature as to what rules have been made by the executive authorities and to
provide an opportunity to the legislators to question the rules made or proposed to
be made.
▪ Scrutiny committees; These are committees formed by the parliament itself with
a view of strengthening its power of control over delegated legislation.
❖ THE DOCTRINE OF DELEGATUS NON POTEST DELEGARE
▪ Delegatus non potest delegare is a Latin maxim which means ‘a delegate cannot
delegate’.
▪ In legislative matters if parliament confers power upon executive authorities
intention is that it shall be exercised by executive authority, and not otherwise, so
the power granted to executive authorities by legislature cannot further delegated.
▪ It is a principle of administrative law suggesting that ‘those to whom power is
delegated cannot themselves further delegate that power’ 37.
36
[1985] 2 SCC 197
37
Mullan, Administrative Law, Irwin Law printers

▪ It is also noted in the case of Remtulla Gulamani v. R38, that the rule against sub
delegation of the subordinate powers is expressed through the Latin maxim
Delegatus non potest delegare meaning a delegate is not competent to further sub-
delegate.
▪ The origin of the delegation powers in Tanzania
▪ In Tanzania, delegation of powers originates from the speech made by late J.K.
Nyerere when he said that his government was putting final touches to decentralize
the government powers from Dar-es-salaam to the regions as much as possible.
This decentralization of decision making would necessarily involve delegation of
powers which had become necessary as a result of the gigantic development
program the government had embarked upon39.
▪ Historical development of the maxim
▪ The principle was first articulated in Canada in 1943 in an article in the Canadian
Bar Review by John Wills. While it is acknowledged as the seminal (influential)
articulation of the law governing the sub-delegation of statutory and discretionary
powers and still often cited, it has not archived the rigid standing originally
intended.
▪ The maxim has had some success as an operational principle in the restriction of
delegation of legislative and judicial powers but the demand of modern
governmental regulatory practices has inhabited its application in the delegation of
administrative powers40.
▪ Therefore, the maxim is subject to some exceptions as follows:
▪ (i) The statue Authority conferring power, the rule does not apply if there is
express or implied authority to delegate.
▪ (ii) The doctrine of Alter Ego Theory, ministerial functions are diverse. It is
not possible for a minister to personally perform all function entrusted to his
ministry. He must therefore be assisted by officials in his ministry. But actions of
38
[1936] T.L.R
39
Oluyede P, Administrative Law in East Africa, p. 60
40
Takwani, Lectures on administrative law. p 72

such officials are taken to be the actions of the minister and he is responsible to the
parliament for such actions. Thus ministerial powers are usually delegated 41.
▪ So basing on the above exceptions, it can be reconciled that the maxim ‘delegatus
non protest delegare’ is not an absolute rule and it can work side by side with the
principle of delegation of powers. Therefore a delegate can still further delegate
those delegated powers under some circumstances permitted by the law.
▪ The case of Carltona v. Commissioner of Works42 provides for the relationship
between the delegation principle and the non-delegation principle. The traditional
view is that the two principles can comfortably be reconciled; in his judgment
Brightman J stated that in this context we are concerned with the devolution
(decentralization) rather than the delegation of power.
▪ 3. QUASI JUDICIAL POWERS
▪ Judicial powers are powers which involve determination of a question of law or
fact by reference to pre-existing rules or standards. They declare rights and impose
obligations upon parties affecting their civil rights.
▪ Judicial powers are based upon investigation subject to certain procedural attributes
contemplating an opportunity for presenting a case, ascertainment of facts by means
of evidence if dispute be question of fact; and if the dispute be a question of law,
the presentation of the legal arguments.
▪ On the other hand, quasi-judicial powers are not judicial powers per se. These are
powers which have some attributes of judicial powers but not all.
▪ Although quasi-judicial powers are not judicial per se, yet there is a duty to act
judicially for any person exercising quasi-judicial powers in all such matters which
might affect the freedom of liberty of any individual.
41
Mandi I.R, Lecture Notes in Administrative Law, p. 9
42
Supra

▪ Sub-delegation of judicial powers

▪ Different from other powers like administrative powers, judicial powers cannot
often be delegated. Lord Denning in Barnard v National Dock Labour Board43
stated that;
▪ “While an administrative function can often be delegated, a judicial function rarely
can be; no judicial tribunal can delegate its functions unless it is enabled to do so
expressly or by necessary implication.”
❖ PRINCIPLES OF NATURAL JUSTICE
▪ The principles of “natural justice” are recognized at law and are given constitutional
protection amounting to constitutional rights. However these are general rules that
ensure fairness in the administration of justice.
▪ Principles of natural justice have been defined by many writers in various ways
basing on their views, in the famous English decision in Abbott v. Sullivan44, it
was stated that “the Principles of Natural Justice are easy to proclaim, but their
precise extent is far less easy to define”.
▪ It has been stated that there is no single definition of Natural Justice and it is only
possible to enumerate with some certainty the main principles.
▪ Natural justice has been define also in various cases example in Drew v. Drew and
Lebura 45 Lord Cranworth defined it as “universal Justice” also In Vionet v.
Barrett46 Lord Esher, MR defined natural justice as ‘the natural sense of what is
right and wrong’ .
▪ In standard and administrative law books, natural justice is being used in various
senses to include natural justice law, the law of God, the common right and
reasoning, the natural sense of what is right and wrong ,the fundamental and
inalienable law, fairness etc.
▪ For instance under the American Constitution the word,” the due process of law is
used to mean natural justice. The concept natural justice is very wide to the extent
of confusing people but to remove the confusion it has been reduced to an
43
[1953] 1 ALL ER 113
44
[1952] 1 K.B.189
45
[1855] (2) Macg. 1.8,
46
[1885] (55) LJRD 39, 41),

irreducible meaning, that means to the core of the natural justice has been confined
with 3 main rules.
▪ Before there existed only two principles; namely; the rule that a man cannot be a
judge on his own case (nemo judex in causa sua) famously known as the rule against
bias and the rule that ‘No man should be condemned unheard’ which is also known
as the right to be heard (audi alteram paterm). However, as time went on courts of
law added another natural justice rule, the right to know the reason to the decision.
▪ By developing the principles of natural justice, the courts have decided a kind of a
code of fair administrative procedure, just as they can control the substance of what
the public authority is doing.
▪ Through the principle of natural justice courts of law can now control the procedure
by which administrative bodies pass their decisions. The concept has a wide
application in the areas of discretionary and administrative powers in the ever
growing governmental powers over individual citizens.
▪ Historical background of the concept of natural Justice 47
▪ It is said to be old as life itself. It is traced from Biblical times. For instance even
before Adam and Eve were punished, he gave them and chance to explain. In its
medieval times, natural justice rules required impartial adjudicators and fair
hearing.
▪ These principles were regarded as immutable order of things cannot be silenced.
Even the powers of Parliament cannot remove the principles of natural justice.
These theories lined into the 17/19th century though by then it was incompatible
with the modern theory of parliamentary supremacy which gradually discarding the
old idea.
47Administrative Law Lecture 2010 Phil Kunjombe

❖ THE RULES AGAINST BIAS:NEMO JUDEX IN CAUSA SUA

▪ The natural justice rule against bias has a long history in the Common Law system.
It rests on the grounds that justice should not only be done, but manifestly and
undoubtedly be seen to be done.
▪ The strongest statement against a man being a judge in his own cause came from
Chief Justice Coke as far back as 1610 in the Dr. Bonham’s Case48.
▪ In this case the College of Physicians wanted to fine and imprison Dr. Bonham of
Cambridge University for practicing in the city of London without License from
the College of Physicians. The law under which the college based its authority
provided interalia that proceeds from the fine should be divided with of half going
to the King and the other half to the College. Attacking this statute as being against
common right and reason, the court ruled that the College had financial interest in
its own judgement and therefore it was a judge in its own cause.
▪ The rule against bias nemo judex in causa sua basically provides that no man should
be a judge in his own cause emanates from the fact that a judge is supposed to
decide impartially the matter before him. In order to be able to do so successfully,
then he should have no DIRECT INTEREST in the subject of inquiry which would
lead him to decide the matter in favor of one of the parties.
❖ TYPES OF BIAS
▪ This is sometimes known as ‘monetary interest’ or ‘economic interest’ which implies that
a judge should not have any such interest in the dispute in which he is adjudicating.
▪ In Dr. Bonham’s case49, as discussed above, the claim was disallowed by Coke, C.J as the
College had a financial interest in its own judgment and was a judge in its own cause.
▪ In another case of Dimes .v. Grant Junction Canal 50, where it was observed that all
tribunals must take care that all their decrees are not influenced by their personal interest,
but to avoid the appearance of laboring under such an influence.
▪ It is therefore to say that pecuniary interest in the proceedings, however small it is, would
wholly disqualify a member from acting as a judge.
48
1610 Co.Rep.113b
49
[1610] 8 Co. Rep .113
50
[1852] 3 HL 759

▪ PERSONAL BIAS
▪ This refers to the way the judge is related to one of the parties in dispute and the way such
relationship might influence decision making of the particular judge. Such relationship not
is positive only but even a negative relationship/enmity between a judge and one of the
parties may disqualify a judge from the proceedings.
▪ Kindred bias and other relationship, one should ensure that this does not lead to the wrong
impression that it is more important that justice should appear to be done than that it should
in fact be done. This was emphasized by Lord Hewart in R v. Sussex Justices Ex Parte
Mc Carthy51.
▪ In all these circumstances the judge will not be allowed to determine such proceedings
since the likelihood of his decision to be influenced by personal bias will be great. However
the fact that there is likelihood of bias will depend basically on the facts of each particular
case.
▪ SUBJECT MATTER BIAS/OFFICIAL BIAS
▪ The fact that a judge has interest in the proceedings and such interests relates to the subject
matter of litigation does not directly disqualifies a judge from determining the dispute
beforehand. What needs to be proved is to what extent such interest influences the outcome
of his decisions.
▪ THE TEST OF LIKELIHOOD OF BIAS
▪ Whether bias exist or not depends on whether biasness does in fact exist or if not then the
court will look at the existence of likely circumstances that biasness exists. Real likelihood
of bias is therefore a test to see whether biasness exist in a particular case. Real likelihood
of biasness is based on any reasonable suspicion that the decision maker might be biased
in his decision.
▪ The proof of the existence of bias is that of the substantial possibility of bias. It was stated
by Vaugham Williams in R v Sunderland 52 , that the court will have to judge as a
reasonable man would judge of any matter in the conduct of his own business.
51
[1924) 1.K.B,526.
52
[1901] 2 KB 357

▪ In R v Sussex Justices53, Lord Hewart answered the question on the test of bias that such
question of whether there was a real likelihood of bias depends not upon what actually was
done but upon what might appear to be done. Nothing is to be done which creates even a
suspicion that there has been an improper interference with the course of justice.
▪ It is in the interest of justice that when the judge sits to decide the matter should have in
mind no interest related to the parties or the subject matter of the dispute before him. This
was emphasized by Lord Denning in Metropolitan Properties Ltd v Lannon 54 , who
stated; “The reason is plain enough. Justice must be rooted in confidence: and confidence
is destroyed when right-minded people go away thinking the judge was biased.”
▪ EXCEPTIONS TO THE RULE AGAINST BIAS
▪ Necessity
▪ In all cases mentioned and discussed the disqualified adjudicator could be dispensed with
or replaced by someone to whom the objection did not apply. But there are many cases
where no substitution is possible since no one else is empowered to act. Natural Justice
then has to give way to necessity or otherwise there is no means of deciding and the
machinery of justice will breakdown.
▪ In the case of Tolpull (II) 4 Co. Ltd v. Mole55, the court registry was sued unsuccessfully
in his own court and he had to tax the costs in his own favor.
▪ Another example on the necessity as an exception is the case of Judges v. AG of Cap 378
Saskatchewan56. In the case, the government of the Saskatchewan called upon the court
to determine whether salaries of judges were subject to income tax. The Privy Council held
that the court was right to decide it as a matter of necessity. It was confirmed that the salary
of judges were subject to income tax.
▪ Statutory dispensation
▪ The Court strictly didn’t apply the rule against bias, which the parliament attempted to
mitigate it by granting exception on particular cases. Difficulties arose especially in case
of justices of peace who often had other public functions which might disqualify him from
adjudicating.
53
[1924] 1 KB 256
54
[1969] 1 QB 577
55
[1911] 1KB 836
56
[1937] 53

▪ THE AUDI ALTERUM PARTEM

▪ Audi Alter Partem is the second principles of the natural justice principle. This rule requires
that before any action is taken, the affected party must be given a notice to show cause
against the proposes action and seek his explanation.
▪ It is a sine qua non of the right of fair and seek his explanation it is a sine qua of the right
of fair hearing any order passed without giving notice is against the principle of natural
justice and is void ab initio.
▪ In the case of R v. University of Cambridge 57, Dr Bentley was deprived of his degree by
Cambridge university on account of his alleged misconduct without giving any notice or
opportunity of hearing. And the court of Kings Bench declared decision as null and void.
▪ Hearing, this is the second requirement of audi alterum Parlem, in this the person concerned
must be given an opportunity of being heard before any adverse action is taken against
him.
▪ In the case of Cooper v Wandiworth Board of Works58, the defendant Board had power
to demolish any building without any opportunity of hearing if it was erected without prior
permission. The Board demolished the house of the plaintiff under this provision. The
action of the board was not in violation of the statutory provision, The court held that the
Board’s power was subject to the qualification that no man can be deprived of his property
without having an opportunity of being heard.
▪ In Simon Manyaki v IMF59 the court stated inter alia, right to be heard is the first principle
of civilized jurisprudence that a person against whom any action is sought to be taken or
whose right of interest is being affected should be given a reasonable opportunity to defend
himself. Fortescue, J. stated that the first hearing in human history was given in the Garden
of Eden. His Lordship observed:
▪ ‘Even God himself did not pass 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, where of I commanded thee that thou shouldst not
eat?’60
57
(1723) 1 1str 757 93 ER 698
58
(1863) 14 QB (NS) 180 – 73 All ER
59
[1984] TLR 304
60
R v University of Cambridge (1723) 1 Str 757: 93 ER 698

▪ THE BRODER OR WIDE SCOPE OF AUDI ALTERAM PARTEM

▪ The scope of application of this rule has not been such narrow as most of scholars try to
confine it in actual fact the rule of Audi Alteram Partem covers a wide scope of the process
of hearing. In order to have a fair hearing the following grounds should be present.
▪ The person should be given sufficient notice of the charge or case he is facing. This will
enable him to know the nature of the accusation made against him thus get prepared to the
case including ability to examine the witness who might be brought before the hearing
officer.
▪ This was seen in the case of Sarcet v. Commission for Registration of India and
Pakistan Residents. 61 Whereby it was held that a person cannot effectively re examine
witnesses who have been questioned by hearing officer on the basis of undisclosed report.
▪ The second ground is that the person should be given a fair opportunity to face his accusers
by making presentation of his own side of the story and contradict any statement or
evidence prejudicial to his interest.
▪ In the case of Ndesamburo v. Attorney General62, the court held the principle of natural
justice which required that a person had to be afforded an opportunity to defend him
necessarily implied that the person determining the matter would consider the party’s
defense before making a decision which affected the right of the party. Failure to consider
such defense was as bad as not affording the party the opportunity of a hearing.
▪ Generally, this maxim includes two elements of notice and hearing.
▪ 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 an indispensable condition (sine qua
non) of the right of fair hearing. Any order passed without giving notice is against the
principles of natural justice and is void ab initio63.
▪ A person must know whatever charge he is facing so as he would be able to defend himself.
In the case of Kanda v Government of Malaya 64, the court stated that if the right to be
heard is to be real, it must carry with a right in the accused man to know the cause which
61
(1966) AC 47
62
[1997] TLR 137
63
Takwan C.K, (1998), Lectures on Administrative Law at P. 159
64
(1962) AC 322

is made against him. Right of hearing means and include sufficient notice of charge, thus
there is a duty of disclosure on the party of administrative body to reveal the charge, which
the person will face, and the document which will be relied on as evidence against him. 65
▪ Even if there is no provision in the statute about giving notice, if the order in question
adversely affects the rights of an individual, the notice must be given. In R v University
of Cambridge66, the King’s Bench declared the decision null and void for lack of notice.
The notice must be clear, specific and unambiguous and the charges should not be vague
and uncertain.67
▪ The object of notice is to give an opportunity to the individual concerned to present his
case and, therefore, if the party is aware of the charges of allegations, a formal defect would
not invalidate the notice, unless prejudice is caused to the individual.68
▪ In Felix Bushaija and others v Institute of Development Management Mzumbe and
others 69 , this was an application by expelled student of the Institute of Development
Management Mzumbe (IDM) for prerogative orders (certiorari, mandamus and
prohibition) to quash a decision to expel them, to compel the respondents to follow the law
in the handling of disciplinary matters by channeling issues through proper Disciplinary
Committee and affording the students the rights to be heard and an opportunity to appeal
as provided by the law. The grounds upon which these reliefs were sought were failure to
natural justice, misuse of statutory powers, failure to act judicially, unreasonableness,
discrimination and estoppels. The court held that the decision to expel the applicants was
vitiated by the failure to observe the rules of natural justice.
▪ Also in the case of James F. Gwilo v Attorney General 70 in this case the plaintiff was a
Regional Development Director for Tabora region until 15 th May 1990 when received a
letter informing him that the president under Section 19 (3) of Civil Service Act and
Section 8 (f) of the Pension Ordinance and standing Order f. 35 has directed his
(Gwilo’s) retirement from the public service in the public interest with effect from 15th
May 1990 and no reasons were disclosed to such retirement. The plaintiff filed a suit for
65
Jimmy David Ngonya v NIC [1994] TLR 28
66
(1723) 1 Str 757: 93 ER 698
67
N.R Coop. Society v Industrial Tribunal, AIR 1967 SC 1182
68
Takwan C.K, (Op.cit) at P. 160
69
High Court of Tanzania at Dar es salaam, Miscellaneous Civil Case No.9 of 1991 (Unreported)
70
High Court of Tanzania at Dodoma, Civil Case No. 23 of 1993 (unreported)

declaration that his retirement in the public interest was wrongful thus he declared a lawful
employee of the government.
▪ The court held inter alia, the president is under obligation to give reasons by virtue of
Article 13(6) (a) of the Constitution of the United Republic of Tanzania, 1977 71 which
guarantees the right of appeal and the right of judicial review from any decision affecting
citizens right, and Article 18 of the Constitution of the United Republic of Tanzania,
197772 which guarantees the citizens right to know and the right to have information. It
was further stated that a third head of the principles of natural justice ranking equally with
Audi alteram partem (the right to be heard) and nemo judex in causa sua (the rule against
bias) exists. This is the right to get reason from a decision maker. Therefore it is a violation
of the rules of natural justice to refuse to give reasons to the party who has lost.
▪ HEARING
▪ There is no fixed rule that the right to be heard means a right to be heard orally. In some
situations a case can fairly be concluded in writing. 73 Oral hearing is not regarded as an
essential part of natural justice that in every case there should be oral hearing.
▪ The purpose of hearing is that there is an overriding obligation to provide the applicant
with the fair hearing and fair opportunity to controvert the charge. For hearing to be termed
as fair it must fulfill the following conditions;
• The adjudicating authorities should receive all the relevant materials which the individual
wishes to produce.
• It should disclose all information, evidence or material which the authority wishes to use
against the individual concerned in arriving at its decision.
• It should give to the individual concerned an opportunity to rebut such information or
material.
• In Ridge v Baldwin74, the Chief Constable of Brighton was dismissed from the force by
the watch committee who claimed to act under Municipal Corporation Act, 1882 Section
191(4) which gave the committee power to dismiss “any constable whom they think
71
[Cap. 2 R.E 2002]
72
Ibid
73
Local Government Board v Arligde [1915] AC 120
74
(1964) AC 40

negligent in the exercise of his duty or otherwise unfit for same”. The Chief Constable was
not present at the meeting of the committee nor given notice of the grounds of the proposal
to dismiss him nor particulars of the grounds nor was he given opportunity of stating his
case. The Court of Appeal heard that “in dismissing the plaintiff the defendants were acting
in administrative or executive capacity as they did when they appointed him”.
• Ridge appealed to the House of Lords which overruled the Court of Appeal by stating that
there were disciplinary regulations which laid down the procedures to be followed in
dismissals and further, natural justice requires that hearng should have been given before
the Watch Committee exercises its power. The failure to give a hearing as required by
natural justice invalidated the dismissal, and the subsequent hearing given to Ridge’s
solicitor (not to Ridge himself) did not cure the area defect.
• Also in Sylvester Cyprian & 210 others v UDSM75, applicants were first year students
of Faculty of Engineering, University of Dar es Salaam, who were discontinued from their
studies for what was called ‘absenting themselves from examination.’ They applied for
Certiorari to move the High Court and quash the decision by the respondent to permanently
dismiss the applicants from the University of Dar es Salaam and an order of Mandamus to
compel the respondent to reinstate them. The sole ground of application was failure to
observe the principles of natural justice. That the Senate entertained charges against the
applicants which were not made known to the applicants and in fact never gave the
applicants or their representatives opportunity to be heard in the own defense. Kyando, J.
reiterated the principle in the following words;
• “I hold the view that the applicant, whose rights and legitimate expectation stood to be so
adversely affected by the enquiry had the right to have an adequate opportunity of knowing
the case he had to meet, of answering it, of putting forward his own case and of being fairly
and impartially treated.”
• Moreover in the case of Mahona v University of Dar es Salaam,76 the applicant in this
case was terminated from employment by the defendants on disciplinary grounds. He
appealed to the Labour Conciliation Board and was successful. The defendant appealed to
the Minister of Labour. The applicant was not supplied with the copy of the memorandum
75
1994 HC DSM, Misc. Civ. App. No. 63
76
[1981] TLR 55

of appeal submitted by the defendant to the Minister nor was he given an opportunity to be
heard by the Minister before making his decision.
• The Minister reversed the decision of the Labour Conciliation 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. Agreeing with
applicant, Kisanga, J. (as he then was), held that there was a breach of the rules of natural
justice as the grounds of appeal by the defendant 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
adherence to these rules renders the decision made null and void.
• NULLUM ARBITRIUM SINE RATIONIBUS
• For long administrative law has only recognized two cardinal principles of audi alteram
partem and Nemo judex in causa sua as the only rules of natural justice. Judicial decisions
have developed another principle which is ‘Nullum Arbitrium sine rationibus’ that is the
right to be given reasons for the decision made.
• Lord Denning in Breen vs. Amalgamated Eng. Union77, Stated that the giving of
reasons is one of the fundamentals of good administration.
• The condition to record reasons introduces clarity and excludes arbitrariness and
satisfies the part concerned against who the order is passed.
• Lord Denning observed in his book ‘The Road to Justice’ at p.29 observed that;
• “The judge must give reasons for his decision: for by so doing, he gives proof that he has
heard and considered the evidence and arguments that have been produced before him on
each side: and also that he has not taken extraneous considerations into account. It is of
course true that his decision may be correct even though he should give no reasons for it
or even give a wrong reason: but, in order that a trial should be fair, it is necessary, not
only that a correct decision should be reached, but also that it should be seen to be based
on reasons; and that can only be seen if the judge himself states his reasons.”
77
(1971) All ER

• Today the government functions have increased, administrative tribunals and other
executive authorities have come to stage and they are armed with wide discretionary
powers. There are all possibilities abuse of power by such authorities and thus
breach the principles of Natural Justice.
• THE DOCTRINE OF LEGITIMATE EXPECTATION
• This doctrine is also a product of judicial decisions particularly in an attempt to extend the
scope of judicial review of administrative actions. It emanates from the fact that a person
may have certain legitimate expectation of being treated in a certain way by an
administrative authority even though he has no legal right in private law to receive such
treatment.
• This legitimate expectation arises in; Either an express promise given by a public authority
OR from the existence of a regular practice which the applicant reasonably expected would
continue.
• In such circumstances the court may protect such legitimate expectations by insisting on
the public authority to act fairly. It is the doctrine which has been developed in the context
of the principles of natural justice and reasonableness.
• The concept of legitimate expectations was discussed in the case of Schmidt v Secretary
of State78 where it was held that an alien who was granted leave to enter the U.K for a
limited period had legitimate expectation of being allowed to stay for the permitted period.
• It is the duty of the applicant to satisfy the court on the basis of his legitimate expectation
in order for the court to invoke its powers of judicial review.
• The consequences of a claim based on legitimate expectations are that the decision taken
by a public authority may be declared unreasonable, unfair, arbitrary or one which has
violated principles of natural justice.
• Limitations on the doctrine of legitimate expectation
• This doctrine is not absolute. It has its limitations which are; It is only procedural and has
no substantive impact, it cannot be applied to preclude legislation and it cannot be applied
against public policy or security of a state.
78
[1969] 1 ALL ER 904

• CONTROL OF ADMINISTRATIVE ACTIONS

• Administrative organs are empowered to perform various powers which once used contrary
to the limits provided by the law may result into violation of rights of certain individuals.
Such powers may either be administrative, judicial or legislative.
• Administrative law provide for the safeguards of ensuring that the powers are used within
the ambits of the law. The following are the ways used to control administrative
actions;
• A. JUDICIAL CONTROL
• The courts are empowered to control the actions of administrative organs by the
following ways;
• APPEAL
• The right to appeal to a court against a decision of the administration depends on the
existence of some statutory provision conferring such a right in the particular circumstance.
Right to appeal is a creature of statute; there is no inherent right of appeal. The statute may
provide right to appeal from one public authority to the higher public authority and the
latter being final and conclusive. In other instances such right may be extended by the
statute to ordinary courts of law.
• If one is aggrieved by the decision of a public authority may appeal to the ordinary court
of law either on point of law or on point of fact. Sometime one may appeal against the
whole decision and therefore asking the appellate authority to substitute its own decision
on the merits for that of the administration. That is to say to decide the matter afresh.
• On appeal, the appellate body has power to reverse the decision made by the lower
authority, to order retrial, or give any such orders as it deems fit.
• JUDICIAL REVIEW
• MEANING OF JUDICIAL REVIEW
• Judicial review is a High Court procedure for challenging administrative actions. Delegated
legislation may also be challenged. It allows individuals, businesses or groups to challenge
in court the lawfulness of decisions taken by Ministers, Government. Departments and
other public bodies. These bodies include local authorities, the immigration authorities,
(regulatory bodies) and some tribunals.

• In the case of R V HM THE QUEEN IN COUNCIL, EX PARTE VIJAYATUNGA79,

Mr Justice Simon Brown (now Lord Brown of Eaton Under Heywood) observed that
“judicial review is the exercise of the court's inherent power at common law to determine
whether action is lawful or not; in a word to uphold the rule of law”. 80
• In the case of CHANDRA KUMAR vs. UNION OF INDIA 81 , Judicial review was
explained as a great weapon in the hands of judges. It comprises the power of a court to
hold unconstitutional and un enforceable any law or order based upon such law or any other
action by a public authority which is inconsistent or in conflict with the basic law of the
land.
• It was substantiated in the case of Chief constable of North Wales police v. Evans 82 where
Lord Brightman stated interalia that, judicial review is concerned not with the decision, but
with the decision making process. This was also repeated in other words in R v. Cambridge
health authority exp. 83 Inter alia that, we have one function which is to rule upon the
lawfulness of decision.
• The underlying policy is that all inferior courts have only limited jurisdiction or powers
and must be kept within their legal bounds. This is the concern of the crown, for the sake
or orderly administration of justice. The private complainant was obliged to set the crown
in motion. The crown is the nominal plaintiff but it expressed to act on behalf of applicant,
so that an application to quash the decision would be granted. The court decides whether
the tribunal orders were within its powers. 84
• LEGAL PROVISION IN THE CONSTITUTION OF TANZANIA
• Article 30 of constitution of United Republic of Tanzania (Cap. 2)
• (3) Any 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.
79
(1997) 3 SCC 261 (292): AIR 1997 SC 1125
80 htpp/www.parliament.uk/commons/lib/research/rp2006
81
(1997) 3 SCC 261 (292): AIR 1997 SC 1125
82
[1982]1 WLR 1155
83
[1995]1WLR 898
84
Wade, R.W and Forsyth, F.C (2000), Administrative law, 8th ed, Oxford University Press Inc, New York, at p 1022.

• Article 64 of constitution of United Republic of Tanzania (Cap. 2)

• (5) Without prejudice(injury, harm) to the application of the Constitution of Zanzibar in
accordance with this Constitution shall have the force of law in the whole of the United
Republic, and in the event any other law conflicts with the provisions contained in this
Constitution, the Constitution shall prevail and that other law, to the extent of the
inconsistency with the Constitution, shall be void.
• Section 17 of the law reform (fatal accidents and miscellaneous Provisions) act
• (1) The High Court shall not, whether in the exercise of its civil or criminal jurisdiction,
issue any of the prerogative writs of mandamus, prohibition or certiorari.
• (2) In any case where the High Court would but for subsection (1) have had jurisdiction to
order the issue of a writ of mandamus requiring any act to be done or a writ of prohibition
prohibiting any proceedings or matter, or a writ of certiorari removing any proceedings or
matter into the High Court for any purpose, the Court may make an order requiring the act
to be done or prohibiting or removing the proceedings or matter, as the case may be.
• (3) No return shall be made to any such order and no pleadings in prohibition shall be
allowed, but the order shall be final, subject to the right of appeal therefrom conferred by
subsection (5).
• APPLICATION FOR JUDICIAL REVIEW

• Judicial review or application for prerogative orders can only be made to the High Court.
First, an applicant must apply for leave to apply for prerogative orders. This Leave is
sought through a Chamber Summons supported by an affidavit sworn by an applicant or
his or her lawyer stating the facts and grounds supporting the application. The affidavit
must be verified by the deponent. The affidavit should be short and straight forward with
simple language.
• The Law provides for limitation of time within which application for judicial review may
be made. Such application, according to Section 19 (2) of the Law Reform (Fatal Accidents
and Miscellaneous Provisions) Act, Cap 310 R.E.2002 is six months from the date that the
decision which is being challenged was made.

• This a condition precedent before a Court is seized of the matter. The practice of seeking
leave to apply for prerogative orders has become part of our procedural law by reason of
long user according to Republic Expert Peter Shirima v. Kamati ya Ulinzi & Usalama, Area
Commissioner & Attorney General [1983] TLR 375.
• But it is not by reason of long user. It is by virtue of S.2(2) of The Judicature and
Application of Laws Ordinance, (Cap 453) read together with Art.17(2) of the Tanganyika
Order in Council, 1920 which made the English Office Crown Proceedings Act and the
Crown office Rules applicable to Tanganyika. There is a requirement for leave to apply
for prerogative orders.
• Why leave? And Can a Court refuse to grant leave?
• In principal, judicial review is a discretionary remedy. As such it may be refused if the
Court is satisfied for instance that there is another adequate remedy available to the
applicant or if and where the Court is satisfied that the applicant has not exhausted
all available and adequate avenues in his favour.
• It may be refused on the ground that there are no merits in the application or that the
applicant has no locus standi or that he has unduly delayed in making the application.
• But the Court may still grant leave even when there are available remedies if in its view,
those remedies are ineffective or if the procedure to secure them is cumbersome or onerous
on the applicant. The totality of the foregoing leads to one conclusion. Leave is a
procedural barrier intended to prevent abuse by busy buddies. It enables Courts to sift
frivolous applications at an earliest opportunity.
• Leave is usually made ex parte. But when it is the Attorney General is a party, section 18
(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act require the
Court to order that the AG be summoned to appear as a party to the proceedings for leave
and if he does not appear on the date set for hearing the application may proceed ex parte.
What this implies is that the respondent presence in Court may be dispensed with until the
hearing of the main cause. It can be heard in the absence of the other party.
• Once leave to apply for judicial review is granted, the applicant must file the main cause
and save it on the other party. Hearing will be inter partes after service of the appropriate
documents. It is worthy noting that if the complaint is against the government, there is no

requirement to save notice of 90 days as provided for in the Government Proceedings Act.
The Government Proceedings Act would not apply.
• To elucidate this point, the case of VIDYADHAR GIRDHARAL CHAVDA VS
DIRECTOR OF IMMIGRATION SERVICES & OTHERS [1995] TLR 125 is relevant.
In that case, the Court, (Samatta JK, as he then was) held that the Government Proceedings
Act does not embrace prerogative proceedings. It was necessary to decide so in order to
guard individual rights of individuals against abuse because S.11 of the Act barred courts
to grant injuctive orders against the government, ministers and officials.
• This case shows the beauty of reasoning, without which rights of the weak which is
protected by law will become nugatory if provisions of laws are taken for granted.
• Who can make claim for judicial review;
• The one to claim for judicial review, must have sufficient interest in the matter he is
applying for, that means applicant must have a locus standi.
• This observation was decided in the case of JOHN MWOMBEKI BYOMBALILWA v
THE REGIONAL COMMISSIONER AND THE REGIONAL POLICE
COMMANDER BUKOBA85; the same principle was applied in the case of LUJUNA
SHUBI BALONZI v REGISTERED TRUSTEES OF CCM 86; this means that a person
to make claim must be directly affected by the public or administrative bodies’ decision.
• Standing exists from one of the two causes:
• The party is directly subject to an adverse effect by the statute or action in question, and
the harm suffered will continue unless the court grants relief in the form of damages or a
finding that the law either does not apply to the party or that the law is void or can be
nullified. This is called the "something to lose" doctrine, in which the party has standing
because they directly will be harmed by the conditions for which they are asking the court
for relief.
• The party is not directly harmed by the conditions by which they are petitioning the court
for relief but asks for it because the harm involved has some reasonable relation to their
situation, and the continued existence of the harm may affect others who might not be able
85
(1986) TLR 73 (HC)
86
(1948) 1 KB 223

to ask a court for relief.

• GROUNDS FOR JUDICIAL REVIEW
• There is no common agreement or understanding on the scope of judicial review.
There are scholars who are upbeat that it is based on the doctrine of utra vires.
• Precedents are many to show that there are other grounds of judicial review
independently of the ultra vires doctrine.
• These are three broad heads. They are illegality; irrationality and procedural
impropriety87.
• General grounds for judicial review were mentioned in Council of civil service unions v.
Minister for civil service88, to include illegality, irrationality and procedural impropriety.
• In Tanzania, the three mentioned grounds above for judicial review are the one practiced
here as in the case of lausa Alfan Salum and 116 others v. Minister for Lands Housing
Urban Development and National Housing Corporation. 89, firstly, if it is tainted with
illegality, that is, the power exercised is ultra vires and contrary to the law. Secondly, if it
is tainted with irrationality, that is, the action or decision is unreasonable in that it is so
outrageous in its defiance of logic or of accepted moral standards that no sensible person
who had rightly applied his mind to the matter to be acted upon or to be decided could have
thus acted or decided. Thirdly, if the action or decision is tainted with procedural
impropriety, that is, failure to observe basic rules.”
• In Sanai Murumbe and another v Muhere Chacha90, suggested the following grounds;
first taking into account matters which it ought not to have taken into account; second not
taking into account matters which it ought to have taken into account; third lack or excess
of jurisdiction; fourth conclusion arrived at is so unreasonable that no reasonable authority
could ever come to it; fifth rules of natural justice have been violated; and sixth illegality
of procedure or decision;
87
See Lausa Alfan Salum &116 others v Minister of Lands, Housing and Urban Development &NHC [1992] TLR 293
(per Moshi, J.)
88
[1985] AC 374
89[1992] TLR 293 (HC)
90
[1990] TLR 54 (CA)

• The above position is also reflected in the case of Associated Provincial Picture Houses
Ltd vs Wednesbury Corp [1947] 2 ALL. E.R 680 and Council of Civil Service Unions vs
Minister for Civil Service [1984]3 ALL E.R 935,
• Thus the grounds for Judicial review can be categorized further into three pigeon
holes as follows:
• ILLEGALITY
• This means the power exercised is ultra vires and contrary to the law. In principle judicial
review is limited to a review of the lawfulness or legality of a decision or action by a public
body, the court however does not review the merits of a decision, courts ensure that public
bodies act legally within their powers.
• Illegality is extended to include:-
• Excess of jurisdiction
• The powers conferred on administrative authority must be exercised only within
the ambits of the law. If the limits are exceeded, then the exercise of such power
is ultra vires.
• Absence of power
• There is no exercise of power unless provided under the law. Any purported
exercise of the power which does not exist under the law is ultra vires.
• 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.
• Error of law on the face of records
• The action of administrative authority may also be challenged on point of law
where the authority reached its decision basing on improper position of the law.

• Improper motive/purpose
• This is where the authority, though not actuated by ill-will, it exercises in good
faith its power but not for the purpose intended in the statute but for different
purpose. That is to say the power has been used for collateral purpose.
• In Shaban Nassoro vs Tanzania Portland Cement 91, where the Minister’s
decision overturning the Board’s decision to reinstate an employee was made
without jurisdiction and was contrary to section 51 of the Security of
Employment Act;
• In Said Juma Muslim Shekimweri vs Attorney General 92 , where the
President’s decision to retire an immigration officer in the public interest was
quashed for being contrary to the law. The Court (Samatta JK as he then was)
held that the common law principle that a civil servant is dismissible at the
pleasure of the President was not part of the Law of Tanzania.
• IRRATIONALITY
• This means the action or decision is unreasonable in that it is so outrageous
(excessive), Unlike illegality and procedural impropriety, the courts under this
head look at the merits (the strict legal right) of the decision, rather than at the
procedure by which it was arrived at or the legal basis on which it was founded.
• The question to ask is whether the decision "makes sense". In many
circumstances listed under "illegality", the decision may also be considered
irrational.
• By irrationality as a ground for judicial review it is associated with what is
referred to as Wednesbury unreasonableness in the case of;- Provincial
93
Picture Houses Ltd. v Wednesbury Corporation , where In 1947
Associated Provincial Picture Houses was granted a license by the Wednesbury
Corporation in Staffordshire to operate a cinema on condition that no children
under 15 were admitted on Sundays. Associated Provincial Picture Houses
91
[1996]TLR 96
92
[1997] TLR 3
93[1948] 1 KB 223

sought a declaration that such a condition was unacceptable and outside the
power of the Corporation to impose.
• Held;-The court held that it could not intervene (interfere) to overturn the
decision of the defendant simply because the court disagreed with it. To have
the right to intervene, the court would have to conclude that: the making the
decision, the defendant took into account factors that ought not to have been
taken into account, or the defendant failed to take into account factors that
ought to have been taken into account, or the decision was so unreasonable that
no reasonable authority would ever consider imposing it.
• This ground has been used to uphold constitutionalism as it prevents powers
from being abused by, for example, exercising a discretion for an improper
purpose or without taking into account all relevant considerations. In doing so,
courts have been in return protecting human rights.
• Irrationality is extended to include;-
• Failure to exercise discretion
• Sometimes the authority is required to apply its mind to the facts and
circumstances of the case at hand. If one is acting mechanically, that is, without
due care and caution or without a sense of responsibility in the exercise of its
discretion, then there is failure to exercise discretion.
• Unreasonableness
• The term unreasonable is ambiguous and one cannot get an express definition
of it. It is normally referred according to the circumstances of each case. This
term may include irrelevant or extraneous considerations, improper or collateral
purpose, etc.
• The test normally is whether a reasonable man could have come to a decision
in question without misdirecting himself or the law or the facts in material
respects. If the conclusion is so unreasonable then the court will intervene.
• Irrelevant consideration
• Statutory power must be exercised on the basis of the ground under the statute.
If the authority takes into consideration irrelevant considerations or extraneous
considerations, the exercise of such power will be ultra vires. Similarly, where

the authority leaves out relevant considerations the exercise of power will be
bad.
• Mala fide
• This means ill-will, dishonest intention or corrupt motive. The power may be
exercised maliciously, out of personal animosity, ill-will or vengeance or
fraudulently and with intent to achieve certain goal foreign to the statute. Bad
intent or malice can be either malice in fact (one which infer personal bias or
oblique motive) or malice in law (one which the administrative action is
contrary to the objects, requirements and conditions of a valid exercise of
power).
• Fettering discretion
• Discretionary powers must be exercised after considering individual cases.
Imposing fetters on ones own discretion by adopting fixed rules of policy
amounts to imposing fetters on discretion and may lead to failure to exercise
discretion.
• Acting under dictation
• This happens where a body entrusted with certain powers of carrying out
decision surrenders such power under the influence of another authority which
has not conferred such by under the law. So the entrusted body will purport to
give the decision of its own which in actual fact has been influenced by the
other authority. In that case such decision is ultra vires and amount to abdication
and surrender of discretion.
• PROCEDURAL IMPROPRIETY
• A decision suffers from procedural impropriety if in the process of its making
the procedures prescribed by statute have not been followed or if the 'rules of
natural justice' have not been adhered to.
• Kinds of procedural impropriety:-.
• Statutory procedures, Act of Parliament may subject the making of a certain
decision to a procedure, such as the holding of a public hearing or inquiry, 94 or
94Jackson Stansfields v Butterworth

a consultation with an external adviser. Some decisions may be subject to

approval by a higher body. Courts distinguish between "mandatory"
requirements and "directory" requirements. A breach of mandatory procedural
requirements will lead to a decision being set aside for procedural impropriety.
• Breach of natural justice
• The rules of natural justice require that the decision maker approaches the
decision making process with 'fairness'. What is fair in relation to a particular
case may differ. As pointed out by Lord Steyn in95 "the rules of natural justice
are not engraved (cut) on tablets of stone."
• Failure to give reasons for a decision-decision, as was the case in Mohamed Jamad
Mrouch v Minister for Home Affairs[1996]TLR 142 (where it was held that there
is a duty to afford a hearing to a person whose resident permit prior to a final
decision being taken and also a duty to give reasons for revocation under section15
of the Immigration Act).
• In the same footing, Tanzania Air Services Ltd v Minister of Labor & Attorney
General [1996] TLR 217 which decided that public bodies making decisions on
rights of individuals have a duty to give reasons for their decisions.
• Distinctions between Judicial Review and Appeal
• An appeal is concerned with the merits of the decision while judicial review
is concerned with the legality of the decision. Judicial review is not
concerned with the merits of a decision or whether the public body has made
the right‟ decision.
• The court in appeal have the power to determine whether a decision was
right or wrong and if wrong it is generally permitted to substitute its own
decision for the erroneous one. By contrast in judicial review the High Court
is limited to a supervisory role i.e. decision and decision making process. If
the High Court finds the decision being flawed then it may quash the
decision but it will then be for the decision maker to reconsider the decision.
95Lloyd v McMahon [1987] AC 625

• Appeal is a constitutional right to a person aggrieved by a certain decision either

by the court or a tribunal or a quasi judicial tribunal or even of an administrative
agency while judicial review is a privilege at the discretion of the High Court
to grant leave or refuse. Appeal starts from the district court to the Court of
Appeal depending on the nature of the case but it is only the High bestowed
with powers to receive and hear application for judicial reviews.
• In appeal there is no application for leave except that when the appeal is
from the High Court to Court of Appeal on matters of law but in judicial
review leave is a mandatory procedural requirement unless the High Court
chooses to waive the requirement where it deems necessary like issues of
urgency.
• Appeal starts from the district court to the Court of Appeal depending on the nature
of the case but it is only the High bestowed (granted right) with powers to receive
and hear application for judicial reviews.
• B. POLITICAL CONTROL OF ADMINISTRATIVE ACTIONS
• This can appear in the following forms;
• A. PARLIAMENTARY CONTROL
• The government is accountable in all its acts to the parliament. This power of the
parliament is derived from the Constitution as per Article 63(2).
• The parliament receives various reports from the government, deliberate on such
reports and where necessary questions the government on anything that might be
arising out of the implementation of the government duties.
• The control of the parliament over the government can well be elaborated in the
doctrine of ministerial responsibility.
• THE DOCTRINE OF 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;
• 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 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.
• Individual ministerial responsibility
• The 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.
• SHORTCOMING OF THE DOCTRINE OF MINISTERIAL RESPONSBILITY
o The doctrine presumes that the minister knows each and everything within his
ministry while in actual sense he is not.
o 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.

o 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.
o 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.
• B. CONTROL BY PUBLIC OPINION
• This may be in form of anonymous letters written by members of the public to the public
officials explaining their complaints towards certain action taken by the administration,
or asking for measures to be taken against certain official who has been seen to abuse the
powers vested on his public office.
• This can also take form of demonstration to show people’s discontent against certain
measures taken by the government. Also it can take forms of petitions and agitations in
working places.
• C. CONTROL BY PRESS
• In the present system of governance, the role of press is of vital importance in ensuring
that there is constant communication between the people and their government. It is also
important to note that media can be the tool for building the government but also can be
the weapon of criticizing it heavily.
• INTERNAL ADMINISTRATIVE CONTROL
• This involves control from higher public authorities to lower authorities. It is exercised
by way of appeal from one authority to another within the administrative organs. It also
involves supervisory powers vested on one authority against the other.
• For example, the Regional Commissioner is in charge of all administrative matters within
his region and he is empowered by the law to ensure that administrative matters are going
well within his locality.

• REMEDIES AVAILABLE UNDER JUDICIAL REVIEW

•
• A. THE PREROGATIVE ORDERS (MANDAMUS, PROHIBITION AND
CERTIORARI)96
•
We’re guided by statutory limitation. The range of prerogative orders is limited to
certiorari, prohibition or mandamus. These may be claimed as an alternative, or in
addition, to each other. Damages may be awarded if claimed. The orders were exercised
by issuing the so called prerogative writs. These writs include the following;-
• MANDAMUS
• Is a peremptory order requiring the respondent to perform a specified public duty in public
law. This does not lie for breach of private law obligation, albeit that such obligation is
owed by a statutory body with other public law duties to an applicant.
• It may be available where a discretion is exercised unlawfully thereby creating a public
law duty to reconsider the matter.
• It is an order of the high court which commands a public body to perform a public duty,
and is usually employed to compel public bodies to exercise the powers given to them. 97
• In Edward Mlaki Liston Matemba v. The Region Police Commander98. There was an
allegation that the applicant's two vehicles were involved in transporting smuggled (illegal)
goods. The Regional Police Commander of Kilimanjaro Region, pursuant to the
instructions of the Secretary to the Regional Security Committee, arrested and detained the
vehicles. The applicant was later summoned (ordered) to appear before the Region Security
Committee where he denied the allegations. He was told that he would be informed of the
outcome but that was not done. The vehicles remained in police custody though no criminal
charges were preferred against him.
• Held;-The High Court held that in the absence of any pending criminal matter the
respondents had no power to detain the applicant's vehicles, and an order of mandamus
96Section 17 of CAP 310.

97
Leyland, P and Woods, T. (2003). Text book on administrative law, 4 Ed.new Delhi; oxford university press:at p,
508
98Civil Application No. 38 of 1979

was issued to release the vehicles.

• It cannot be issued to compel an authority to do something against statutory provision. For
example, it cannot be used to force a lower court to reject or authorize applications that
have been made, but if the court refuses to rule one way or the other then a mandamus can
be used to order the court to rule on the applications.
• A writ or order of mandamus is an extraordinary court order because it is made without the
benefit of full judicial process, or before a case has concluded. It may be issued by a court
at any time that it is appropriate, but it is usually issued in a case that has already begun.
• Conditions necessary for the order of mandamus to be issued
• For application of any legal remedy or relief, any individual particularly a victim or
aggrieved party has first to fulfill those mandatory conditions precedent to the application
of that order as provide by constitution, statute, case laws or a matter of practice.
• There are also some mandatory conditions which one has to consider before he steps his
leg to the high court to asking for those discreationary remedy.
• As seen in the case of John Mwombeki Byombaliwa v The Regional Commisioner and
Regional Police Commander, Bukoba,99 In this case, 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.
• This case is very relevant in as far as the order of mandamus is concerns because it is this
case in Tanzania which stipulated grounds through which one can apply for an order of
mandamus. In this case Mwalusanja J, unequivocally stated that, Five conditions must be
proved in order for an order of mandamus to issue: therefore from these words of the
hon. Judge it is clear that those grounds or conditions must first fulfilled. Those conditions
established by this case are as following;
• Firstly is that, the applicant must have demanded performance and the respondents must
have refused to perform; that means, before an aggrieved party decided to approach the
99
[1986] TLR 73 (HC).

court, he must make sure that he has already demanded the person or body he alleges to
have refused and that such person or body so demanded has ignore such demand hence has
preform nothing.
• In Alfred Lakaru v Town Director Arusha 100 , Maganga, J stated inter alia that,
Mandamus will not be granted unless applied for within a reasonable time after the demand
and refusal to do the act and in this case there is neither even an averment that there had
been demand for performance before the application was fined, nor evidence of such
demand and refusal,
• Secondly the respondents as public officers must have a public duty to perform imposed
on them by statute or any other law but it should not be a duty owed solely to the state but
should be a duty owed as well to the individual citizen; this is another important condition
to be first fulfilled because the order of mandamus is issued only to the public authorities
and therefore the applicant must make sure that it is the public officer who fail to perform
such duty he demanded.
• Thirdly, the public duty imposed should be of an imperative nature and not a discretionary
one; this means that one can not apply for an order of mandamus to compell the public
authority to perform duties which performance of them is not mandatory but just depend
on their discretion. Discretionary duty appears when there is freedom of choice put on a
competent authority to decide whether to act or not whenever deemed fit so to do. Such
may either be statutory or circumstantial all of which cannot claimed to be performed
unless the doctrine of legitimate expectation come to rescue the applicant.
• Fourthly, the applicant must have a locus standi, that is he must have sufficient interest in
the matter he is applying for; lucus standi simply means one interest in the matter.
• It is provided in Lujuna Shubi Ballonzi, Senior v Registered trustees of Chama Cha
Mapinduzi101 inter alia that, Locus standi is governed by common law according to which
a person bringing a matter to court should be able to show that his right or interest has been
breached or interfered with. This means that any person who wishes to apply for this order
must make sure that it is he who sick for the performance of public duty or in other way
affected by the failure of such performance note that his affection is not so remove.
100
[1980] TLR 326
101
[1996 ]TLR 203 (HC)

• Fifthly, there should be no other appropriate remedy available to the applicant. Obvious
one can not file for this order if there is any other remedy particularly appeal.
• It is stipulated in Abadiah Selehe v Dodoma wine company limited102 inter alia that, an
order of mandamus is a discretionary remedy, As a general rule the court will refuse to
issue the order if there is another convenient and feasible remedy within the reach of the
applicant.
• Therefore this condition must all together be fulfilled for an applicant to succeed in his
application for an order of mandamus.
• This can be seen in the case of Alfred Lakaru v Town Director Arusha (supra), in this
application the applicant sought an order of Mandamus against the respondent directing
the respondent, inter alia, to restore to him the occupation of Stall No. 17 in Arusha Central
Market alleging that the respondent had unlawfully evicted him from the stall which he
had rented and used for sale of vegetables since 1955. The respondent did not file
appearance and therefore the application was heard ex parte.
• It was held that,Without going into its merits, the application was incompetent and
misconceived as the affidavit filed in support of the application did not disclose any of the
conditions precedent for the issue of an Order of Mandamus, namely: (a) Legal right must
exist (b) Duties must be public (c) Right must be in the applicant (d) Application must be
made in (utmost) good faith (uberrimae fidei) (e) Demand for performance must precede
the application (f) There must exist the possibility of enforcement; and (g) No other legal
remedy.
• HABEAS CORPUS
• This is one of the most ancient writs known in the Common law of England. The Latin
phrase ‘habeas corpus’ means ‘have the body’. Honourable Mapigano, J in SHEIKH
MOHAMMAD NASSOR ABDULLA v THE REGIONAL POLICE COMMANDER,
DAR ES SALAAM REGION AND TWO OTHERS103, explained this remedy to mean;
• “This remedy has its roots in England. At common law the prerogative writ of habeas
corpus is directed to a person who detains another in custody and commands him to
produce or have the body of that person before the court for a specified purpose.
102
[1990] TLR 113 (HC)
103
[1985] TLR 1 (HC)

• The most important specie of habeas corpus is that which is called habeas corpus ad
subjiciendum. This commands the person to whom it is directed to produce the body of a
person detained, with the day and cause of his caption and detention, to do, submit to and
receive whatsoever the court shall direct. We are told that this writ was formerly much
used for testing the legality of imprisonment for political reasons, especially during the
reigns of the Stuarts.
• Besides the efficacy of the writ in liberating the subject from illegal confinement in a public
prison, it also extends its influence to remove every unlawful restraint of personal freedom
in private life, availing, for example, to release a person from a place where he has been
unlawfully banished. It is part of the law of this country.”
• Therefore from such explanation it can be stated that the major objective of the writ of
habeas corpus is to enable the court to determine the justification of one’s confinement and
where it finds out that there is no legal justification then the person who has detained
another will be ordered to release him. It is therefore to say that the condition for issuing it
is only where there is unlawful detention. This was emphasized in R v Home Secretary 104
that;
• “The question for a habeas corpus court is whether the subject is lawfully detained. If he
is, the writ cannot issue, if he is not, it must issue.”
• This writ can be issued against any person or authority that has illegally detained or arrested
the other.
• CERTIORARI
• Lies to quash a decision that is made by a public body or a body exercising public function
and if such decision is invalid. In order for the order to issue, there must be a decision or
a determination which has some legal effect and does affect subjects.
• Conditions necessary for a writ of certiorari to issue were discussed by Lord Atkin in
the case of R v Electricity Commissioners105. Such conditions include; that, the judicial
or quasi-judicial body must have legal authority, That such authority must be in respect of
104
[1941] 3 ALL ER 104
105
[1924] 1 KB 171

determining questions affecting rights of subjects, That it must have duty to act judicially
and That 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 LIMITED106 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 applicant107”
• One can apply for an order of certiorari on jurisdictional grounds [that is either abuse of
jurisdiction, excess of jurisdiction or lack of jurisdiction], error on the face of records, fraud
and violation of the principles of natural justice.
• The order of certiorari can not be granted in such relationships which are governed by
private law, eg contractual relationships. In the case of Assistant Registrar of Buildings
v Fredrick G Kibwana108 the Court of Appeal of Tanzania stated that;
• “…certiorari“…certiorari being a discretionary remedy for the courts to issue, it cannot
be issued in this case where there is already a contractual relationship between landlord
and tenant, a relationship of a commercial or business nature. The recourse to the courts
of law to adjudicate on the breaches of contract would be a better procedure.”
106
[1990] TLR 113 (HC)
107
Also see the case of Lakaru v Town Director (Arusha) (1986) TLR page 326.) B
108
[1987] TLR 84 (CA]

• PROHIBITION
• Whereas certiorari lies to quash a decision already made, prohibition is used to prevent
the respondent from acting or continuing to act in such a way as to abuse jurisdiction or
offend natural justice.
• It is used to restrain an unlawful decision or policy. The jurisdictional rules relating to it
are co-extensive with those in respect of certiorari. The grounds for obtaining the remedies
and the bodies against whom such order can be made are virtually identical.
• Prohibition is available to prevent any public body including lower courts, from acting
outside its powers. This remedy is not available against the body that has already
completed the acts complained of although if there is something left to act upon an order
may still be made.109
• Prohibition will not lie to review a finding of fact made by an inferior body for purposes
of assuming jurisdiction. According to R V LIVERPOOL CORP ex p. LIVERPOOL TAXI
FLEET OPERATORS ASSOCIATION [1972]2 Q.B.299, the remedy may be granted on
a contingent basis so as to prevent the exercise of powers until a particular condition is
satisfied permitting such powers to be performed lawfully.
• Locus standi both in certiorari and prohibition need to be further studied. New
developments seem to be predicated on the principle that once there is a public element in
the decision or determination, an applicant does not have to show that he has interest in the
issue.
• This writ was defined in the case of East India Commercial Co. v. Collector of
customs110 where the Supreme Court of India stated that; A writ of prohibition is an order
directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on
the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws
of the land, statutory or otherwise.”
• Conditions necessary for a writ of prohibition to issue are;
• There must be a proof that a judicial or quasi judicial body has no jurisdiction or it acts in
excess of jurisdiction vested on it.
109
Estate and Trust Agencies(1927) Ltd v Singapore Improvement Trust[1937]A.C 898 at p.918
110
AIR 1962 SC 1893

• There must be proceedings pending before a judicial or quasi-judicial authority. If the

proceedings have been terminated and decision given, then it cannot be issued
• If the proceedings are partly out of the jurisdiction of the particular body then it can be
issued only against such matters which the judicial or quasi-judicial body lacks jurisdiction.
• 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 111, 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.
• EQUITABLE REMEDIES
• These are remedies which are available to a person aggrieved by administrative action
but in the particular circumstances there is no possibilities of him to be able to obtain
prerogative writs which are subject to the discretionary power of the court. In such
circumstances a person can resort to ordinary equitable remedies which are;
• DECLARATION
• Declaration is a statement of the legal position in the matter before the court. The court
may simply declare that an administrative action or decision is valid or not. A
111
AIR 1965 SC 491

declaration lacks coercive power as the case has been in Tanzania with High court
declaring some statutes null and void and wait for responsible authority to rectify the
situation.
• As it is apparent from the statute at hand, Declaration is not part of discretionary
remedies under Cap 310. It is not possible to obtain interim relief by declaration. It is
a remedy falling under civil proceedings under the Government Proceedings Act. As
to injunction this can be obtained as an interim measure to restrain unlawful acts about
to be, or in the process of being, committed. It is a tool to maintain the status quo ante.
• A declaratory judgement is that which states the rights or the legal position of the
parties as they stand without altering them in any. This remedy may be applied together
with other remedies in suitable cases. This remedy merely states the correct legal
position of a certain situation without requiring anyone to do anything. The major
purpose is to allow the parties in any issue which is at its early stages.
• INJUNCTION
• It is an equitable remedy issued by the court to the party to proceedings before it,
requiring it to refrain from doing, or to do, a particular thing/act.
• It is a judicial process by which one who has invaded, or is threatening to invade the
rights, legal or equitable, of another, is refrained from continuing or commencing such
wrongful act.
• In Metropolitan Asylum District v Hill112, the relevant Act empowered the authority
to build a hospital for children for treatment of small-pox. An injunction was obtained
by neighbouring 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
• The plaintiff must be entitled to get assistance from the court
• There should be no other alternative remedy
112
[1881] 6 AC 193

• QUESTION FOR FURTHER REFLECTION

1. “The parliament cannot make laws for every eventuality. It is absolutely absurd
to even think of it. The reality is that such legislative powers have to be
delegated. And whenever such delegated powers are exercised, they have to be
exercised intra vires. And to ensure that, certain safeguards must be set to
control abuse of such powers” Discuss
2. Discuss the relevance of the doctrine of ultra vires in Administrative law.
When is it applicable in controlling administrative actions?
3. the High Court of Tanzania has over other subordinate courts is the power to
review decisions of various administrative organs and courts below it through
judicial review. However the practice has revealed that application for judicial
review involves some legal limitations and frustrations and it is not certain that
whenever an application is made for it one can get the remedy sought.
4. Critically discuss this statement showing, inter alia, necessary requirements for
one to be able to seek remedy before the court through judicial review.
5. Delegatus non potest delegare’. Discuss
6. One of the cardinal principles of Natural Justice is Audi Alteram Partem. The
scope of application of this rule has not been such narrow as most of scholars
try to confine it. In actual fact this rule covers a wide scope of the process of
hearing. Discuss
7. “Properly exercised the new powers of the executive lead to Welfare State, but
abused they lead to the Totalitarian State. Without proper and effective control
an individual would be without remedy, even though injustice is done to him”.
Discuss the validity of this statement pointing out the control mechanisms
against abuse of administrative powers and remedies available to a victim of
such abuse.

TOPIC 4: ADMINISTRATIVE TRIBUNALS & INQUIRIES

❖ INTRODUCTION
▪ Traditionally, the duty of determining disputes between individuals in the society is viewed
as an exclusive domain of the ordinary courts of law. The conception of a court as a central
adjudicative body found acceptance in most of the classical scholars' writings such as
Montesquieu (separation of powers) and contemporary jurists such as Dicey (rule of law).
▪ The Constitution of Tanzania, 1977 (RE: 2005) under Article 4(1)(2) vests judicial powers
in the Judiciary of the United Republic and the Judiciary of the Revolutionary government
of Zanzibar.
▪ In the same vein, The Constitution of Zanzibar, 1984 (RE: 2006) under Article 5A(2)
confers judicial authority to the Courts of law.
▪ Article 107A (1) of the Constitution of Tanzania (supra) cements and reiterate the above
position by providing that The Judiciary shall be the authority with final decision in
dispensation of justice in the United republic of Tanzania. Though the Constitution of
Tanzania (supra) is very clear on which organ should exercise judicial powers, in reality
many judicial functions have come to be performed by the executive, e.g. imposition of
fines, levy of penalty, confiscation of goods, cancellation of licences and etc.
❖ MEANING OF 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. Now, let us look at some of
the definitions;
▪ Are bodies established to decide various quasi-judicial issues in place of ordinary courts 113.
▪ Are adjudicative bodies constituted, manned and operated by the executive 114.
▪ Are bodies outside the hierarchy of the courts with administrative or judicial functions 115.
113
Thakker (Takwani,1998)
114
L.B. Curzon, Dictionary of Law, 6th Ed., 2002 (Pearson/Longman).
115
Concise Oxford Dictionary, 10th Ed., 2001.

▪ Generally, A tribunal is an independent adjudicatory body which is normally set up by

statutes to deal with certain disputes arising under the particular statute or other statutes.
Tribunals share some characteristics of the ordinary court of law although they are not
courts per se.
▪ OR alternatively, Administrative Tribunal or 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.
▪ Powers to adjudicate do not make any adjudicatory body a ‘tribunal’. Such powers must
emanate from the statute and not merely from mutual agreement between two parties under
dispute.
❖ OTHER NAMES FOR ADMINISTRATIVE TRIBUNALS
▪ Why do we call them 'administrative tribunals' or 'quasi-judicial bodies' or 'statutory
tribunals'?
▪ They are known as administrative tribunals because as opposed to ordinary courts, these
bodies are composed and chaired by lay administrators (normally, non-lawyers) who are
either appointees' of the President or Minister for a fixed term.
▪ They are referred to as quasi-judicial bodies since they are not full-fledged courts (i.e. not
courts of law properly so called, they have supplemental/complementally role to the
Courts).
▪ They are called statutory tribunals simply because they are creations of the statute.
▪ Examples of tribunals include Ward Tribunals established under the Ward Tribunals Act,
1985 to deal with civil matters; the District Land and Housing Tribunals established under
the Courts(Land dispute settlements) Act, 2002[Act no.2 of 2002, the Trade Practices
Tribunal established under Section 4 of the Fair Trade Practices Act, 1994 [Act no.4 of
1994].
❖ TYPES AND EXAMPLE OF 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, labor officers and
Minister for Labor in certain circumstances have statutory powers to entertain and make
decisions on labor disputes between an employer and employees.
▪ (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. Examples;
Military Tribunal (Court Martial), The Tax Revenue Appeals, The environmental Appeals
Tribunal, Fair Competition Tribunal, District Land and Housing Tribunal, and Ward
Tribunal.
❖ LEGAL BASIS FOR ADMINISTRATIVE TRIBUNALS IN TANZANIA
▪ The Constitution of Tanzania 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.
▪ The Constitution of Kenya (2010), under 1(3)(c); presents a best practice as far as Tribunal
are concerned.
❖ RATIONALE BEHIND EMERGENCE OF TRIBUNALS
▪ Generally it can be said that the rationale behind emergence of tribunals is based
on the following reasons;
1. Modern governmental activities give rise to many disputes which cannot be solved by
applying objective legal principles or standard. This has necessitated the emergence of

tribunals.
2. A need to have bodies which can take preventive measures.
3. A need to have bodies which can effectively enforce preventive measures taken by
administrative authorities.
4. Since administrative organs are also policy makers, then it is necessary to have bodies
which can easily enforce departmental policies and other relevant factors. Hence
administrative tribunals are one of such bodies which can effectively enforce
administrative policies.
5. A need to have institutions which have specialized jurisdiction, that is, to have adjudicatory
bodies which shall be composed of persons who are experts in matters relating to the nature
of disputes intended to be solved by a particular body/tribunal. In other words one can say
that the idea of expertise is linked to the type of decision which tribunals are going to make.
6. Flexibility in their proceedings. When carrying out their decisions, tribunals must both
administer a clear set of rules and maintain a high measure of flexibility in their decisions
so that justice in individual cases prevails over mere consistency.
7. The ordinary court system has proved inadequate to be able to deal with all the cases
brought before it. There are many cases which are pending before the courts. It is therefore
for tribunals to be the other centers of adjudication to reduce number of cases which are
instituted in ordinary courts of law.
8. Cheapness, accessibility and freedom from technicality.
NOTE: Although tribunals have such reasons for their emergence, they are not the
substitutes of the ordinary courts of law.
❖ INHERENT FEATURES OF ADMINISTRATIVE TRIBUNALS
▪ Administrative tribunals are characterized by following features;
• Administrative tribunals are constituted by Acts of the Parliament (and not by Government)
i.e. tribunals are statutory creatures'
• Decisions of administrative tribunals are judicial rather than administrative. Tribunals
decide on legal issues, in so doing, they confer or restrain rights to individuals.
• 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.

• Administrative tribunals are not bound by strict rules of procedures, evidences and
other legal technicalities. This was emphasized in the case of State of Mysore v
Shivabasappa 116 where the supreme Court of India stated that “Tribunals
exercising quasi-judicial functions are not courts and therefore they are not bound
to follow the procedure prescribed for trial of actions in courts nor are they bound
by strict rules of evidence. They can, unlike courts, obtain all information material
for the points under enquiry from all sources, and through all channels, without
being fettered by rules and procedure which govern proceedings in court. The only
obligation which the law casts on them is that they should not act on any
information which they may receive unless they put it to the party against whom it
is to be used and give him a fair opportunity to explain it. What is a fair opportunity
must depend on the facts and circumstances of each case but where such an
opportunity had been given, the proceedings are not open to attack on the ground
that the enquiry was not conducted in accordance with the procedure followed in
courts.”
• They have judicial powers (e.g. to summon witnesses, pass legally enforceable decisions
and etc).
❖ SIMILARITIES BETWEEN TRIBUNALS AND NORMAL COURTS

▪ That they both derive their legality from various statutory instruments and the
Constitution of United Republic of Tanzania, 1977 as amended time to time.
▪ That both are adjudicatory bodies which deal with disputes between parties and in
so doing they determine the rights and liabilities of the parties in disputes. On this
it was stated in the case of Associated Cement Co. Ltd V P.N. Sharma AIR 1965
SC 1595 that the basic and the fundamental feature which is common to both the
courts and the tribunals is that they discharge judicial functions and exercise
judicial powers which inherently vest in a sovereign state.
1. That both are governed by the principle of neutrality and impartiality while
116
AIR 1963 SC 375

deciding the dispute before them. Although in some circumstances administrative

tribunal can be an interested party to dispute in which it is adjudicating, however in
all such circumstances, the duty to act judicially is there for the purpose of ensuring
that justice prevails.
❖ DIFFERENCES BETWEEN TRIBUNALS AND ORDINARY COURTS
▪ The fact is that all courts are tribunals but the converse need not necessarily be
true. Therefore the two can be distinguished as follows;
▪ Courts of law form part of the traditional judicial system which is one of the organs
of the state while Tribunals are agencies, statutory bodies, formed to deal with
specific matters which mainly fall under the executive arm of the government.
▪ The jurisdiction of ordinary courts to determine civil suits extends to all suits of
civil nature except where expressly barred by the law while tribunals have
jurisdiction on to determine specific matters statutorily conferred. However not all
courts have general jurisdiction. Some have been established to determine specific
matters, eg Labor Court established under the Labor Institutions Act, 2004.
▪ The judicial personnel like judges in ordinary court are free from the vices of the
executive while in administrative tribunals are entirely in the hands of the
Government.
▪ The court of law has power to determine the ‘vires’ of the legislation while
administrative tribunals cannot.
▪ The courts of law are composed with well trained personnel in the field of law and
these are Judges, magistrates and advocates who appear before the court while
Tribunals are not necessarily require such composition of well trained legal
personnel.
▪ Courts of law are strictly bound by rules of evidence and procedures while
Tribunals are not always bound by strict rules of evidence and procedures unless
where the statute that establishes a particular tribunal provide for the same.
▪ Courts of law have powers to control the exercise of powers of the tribunals
through Judicial Review, Revision and Appeal.
▪ One thing to be noted is that not all Tribunals are administrative. Professor
Wade says that the expression ‘administrative tribunals’ is misleading for various

reasons;
o That every tribunal is a result of an Act of Parliament and not by
Government
o That decisions of such tribunals are judicial rather than administrative
o That not all tribunals deal with cases in which Government is a party
o That Tribunals are independent bodies.
❖ ADVANTAGES 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.
• 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 licences, 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,
• For example 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.
• Ensures effective implementation of socio-economic policies and schemes found in the
statute.

❖ DISADVANTAGES OF ADMINISTRATIVE TRIBUNALS
• The practice violates the principle of separation of powers. The 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 as justice hurried is justice
buried.
• They 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.
• 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.
• Tribunals are manned by laymen and thus advocates are not allowed to appear.
• Subordination of the ordinary courts of law.
❖ WAYS OF CHALLENGING THE DECISION OF TRIBUNALS

▪ Despite the fact that some Tribunal decision are final and conclusive but if
individuals would have not given the opportunity to challenge arbitrariness of
some of the decisions of administrative tribunals, then the fate of justice would
be put into.
▪ The point above was enunciated by Lord Denning in R v Medical Appeal
Tribunal [1957] 1 QB 574, where he stated; “If tribunals were at liberty to

exceed their jurisdiction without any check by the courts, the rule of law would
be at an end”
▪ In the case of Tanzania Air Service Ltd v Minister for Labor and 2 others
[1996] TLR 217, the Court stated that; The provision that the…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.
▪ ‘Final and Conclusive’ provisions are what sometimes called “Ouster or
Finality Clauses”
▪ Therefore decision of administrative tribunal can be challenged by the
following ways;
▪ By Appeal. This is a constitutional right which has to be exercised subject to
the statute that establishes a particular tribunal. Where the statute provide for a
right to appeal against the decision of a tribunal then such right can be exercised
where a person is aggrieved by the decision made by the tribunal. Sometimes a
statute may provide right to a appeal not to the ordinary court of law but to the
higher public authority whose decision shall be final and conclusive. In other
cases right to appeal is made to the ordinary court of law.
▪ By revision. Decisions made by administrative tribunals can be revised by
higher authorities or ordinary courts of law upon application from the party
which is dissatisfied with the decision of the particular tribunal. Sometimes the
law may grant supervisory power which gives mandate to the court to call for
the records of proceedings a particular tribunal and satisfy itself with the way
the decision was reached. Such revisory power can go to the extent of reversing
the decision which was made.
▪ By reference. Sometimes the tribunal on its own motion and where the law
provide for the same may refer its decision to the Higher authority or ordinary
court of law so that the latter can satisfy itself on the way proceedings were
conducted or seek for the proper interpretation of the law.
▪ By Judicial Review. Some statutes which establish administrative tribunals
grant them power to hear and give final decisions on the matters brought before

them. In such circumstances they tend to oust the jurisdiction of ordinary court
to determine such particular matters by way of appeal.
❖ INQUIRIES
▪ INQUIRIES has been defined as a well publicized inquisition on a grand scale,
which may not be concerned with government policy and administration only; but for
the most part, with the investigation of suspected impropriety or negligence in public
life
▪ The aim of setting up public inquiries is to satisfy the public that a proper
investigation has been made into a matter about which there is a great deal of
public disquiet.
▪ In the case of Bushell v Secretary of State for the Environment [1981] AC 75. Lord
Diplock stated that inquiries were to be regarded as quite distinct from courts of law.
However inquiries have to be governed by a need to conduct themselves in such a way as
to guarantee fairness to those who would be affected by any decision that followed from
the proceedings.
▪ In Tanzania, the jurisdiction of inquiries has been extended for the purpose of
embarking on any administrative policy which has serious political consequences.
Inquiries have become the standard device for giving fair hearing to objectors before
the final decision is made on some questions of government policy affecting rights
or interests of citizens.
▪ The notable examples of inquiries formed in Tanzania include is the Nyalali Commission
Inquiry; Kissanga’s Commission of Inquiry; Shivji’s Commission of Inquiry formed to
make inquiry on different matters such as land, multiparty system, and law just to mention
a few.
▪ Normally inquiries are held in controversial cases in order to come up with something
which administrators can use to reach proper decisions.
▪ The outcome of the inquiry may result in legislation being introduced or some of the laws
being amended or repealed. Not all the recommendations made by any inquiry shall be
implemented by the authorities concerned. This is to say, the decision to follow or not to
follow what the report of the inquiry says lies on the authority which established such
particular inquiry.

❖ TYPES OF INQUIRIES
▪ There are basically two kinds of inquiries;
• Statutory Inquiries. These are those which are provided under various statutes for the
purpose of facilitating proper decision making. For example, the Public Service Act, 2002
provides that before any disciplinary action is taken against a public servant there must be
an inquiry undertaken to establish whether the allegations put against the public servant are
true.
• Non-statutory Inquiries. These are such inquiries which are made depending on the need
arising in the society. Where a public authority considers it for public interest to conduct
an inquiry, then a commission is formed to investigate and collect necessary information
which shall form a report to be submitted to the authority concern for further
considerations. Such report is normally not binding to the authority to which it is submitted.
❖ TRIBUNALS AND INQUIRIES DISTINGUISHED
▪ The following are the differences between inquiries and tribunals;
1. Tribunals are more permanent than inquiries.
2. Tribunals adjudicate independent cases of the same nature; while inquiries investigate a
particular subject matter.
3. Tribunals are set up under different statutes; while inquiries are usually set up under
the same law.
4. Tribunals’ decisions may be final; whereas inquiries are usually set up to make
recommendations.
5. A tribunal may be composed of a single individual; while an inquiry is in most cases
made up of a body of persons.
6. An inquiry is highly publicized; whereas in the case of a tribunal, it is only the parties
to be affected by its decision that take part in the proceedings.
7. Legal representation of interests is often made before tribunals than inquiries.
8. Tribunals give judicial decisions; while inquiries are mere preliminaries to political
decisions.
9. Tribunals may in most cases act judicially and are mostly expected to observe the rules
of natural justice; while the powers of inquiries are mostly quasi judicial.

❖ SIMILARITIES BETWEEN TRIBUNALS AND INQUIRIES
1. Both can be subjected to supervisory powers of the ordinary courts of law.

2. The proceedings of both can be subject of judicial review by the High Court.
3. Both have duty to act in fairness and within their powers.
4. The composition of both does not necessarily require persons who are lawyers.
5. They are both not bound by strict rules of evidence and procedures.
QUESTION FOR FURTHER REFLECTION
1. The proper tribunals for the determination of legal disputes in this country
are the courts, and they are the only tribunals which, by training and
experience and assisted by properly qualified advocates, are fitted for the
task” (Lord Romer). How far is this argument hold water in as far as the
growing importance of administrative tribunals to the contemporary
system of administration?
2. “If tribunals were at liberty to exceed their jurisdiction without any
checks by the courts, the rule of law would be at an end”. Discuss this
statement by pointing out the ways in which decisions of administrative
tribunals may be challenged.
3. Show the differences between "administrative tribunals", "commission of
inquiry" and "disciplinary committees".
4. Name and explain any ten (10) administrative tribunals in Tanzania.

TOPIC 5: THE OMBUDSMAN’S OFFICE AND THE HUMAN RIGHTS

COMMISSION
❖ INTRODUCTION
▪ The term ‘Ombudsman’ means a delegate, agent, officer or commissioner 117. The Oxford
Concise Dictionary defines this term to mean an official appointed to investigate
individuals’ complaints against maladministration, especially that of public authorities.
▪ It is generally an institution of the government charged primarily with the function of
safeguarding citizens against abuse or misuse of administrative powers by the executive.
It is the body that inquires on any allegations of mal-administration and recommends on
the appropriate steps to be undertaken.
▪ The Public Complaints Commission is better known all over the world as Ombudsman.
The Ombudsman is known and performed by various agencies all over the world.
▪ In United Kingdom they are known as "Parliamentary Commissioner for Administration
(PCA). The Ombudsman in U.K is attached to the Parliament while there are also various
other Ombudsman services in the United Kingdom4 which are specific for each industry
or areas of influence.
▪ The history can be divided into three main periods.
▪ Firstly, around 1809 in an era of authoritarian monarchy. It developed as a check on
executive power and incidentally it developed within the executive itself.
▪ The kings of Sweden had established it to ensure that their administration would
vigorously respect and implement their laws. Ombudsmen are therefore public officers set
up to straighten the authority of the executive over the other powers.
▪ Secondly, the regimes became more parliamentary, the office was towards the second half
of ninetieth century, redesigned and moved away from the sphere of the executive and
became the instruments of the parliament to monitor and control the executive. Today, it
is still an essential element in the Swedish theory of "constitutional" control.
▪ Thirdly, by the twentieth century, it acquired its relative autonomy and has now evolved
into the citizens instrument. Posing as the 'defender of civil rights against the arbitrariness
of bureaucracy, it is no longer confined to the horizontal relationship between authorities
117
See C.K. Takwani [1994] Lectures on Administrative Law 2nd edn, at page 344

but is also part of the vertical control of the state by citizens. As such, it combines the two
basic dimensions of accountability in democratic systems5.
▪ Rationale for the Establishment of Ombudsman in Tanzania include:
▪ 1. Generally, the Ombudsman is a state official appointed to provide a check on
government activity in the interests of the citizens and to oversee the investigation of
complaints of improper government activity in the interests of the citizen. There is an
acknowledgement that Tanzania citizens were once generally oppressed and victimized
by the administrative powers of the government. There is a need for intervention by a
supposedly neutral voice or "history ears" for the benefit of the citizens who may have a
complaint against the government.
▪ 2. Secondly, the overzealous officers of government are known for exceeding their powers
and flagrant use of their administrative power for their own personal gains. Corruption and
nepotism are the order of the day, the misuse of the institutions of government are also the
order of the day. There is therefore a need for an intervention backed by law to protect
arbitrariness injurious to the common man.
▪ 3. A very important reason for the establishment of the Commission is the cost of access
to the courts. The common man may not be so endowed to finance court process and
payment of legal fee. The Commission therefore is a formidable window to complaints
against human rights abuses and other administration, maladministration and oppression.
▪ 4. Apart from the cost of litigation, it is quite obvious that not all oppressive acts or abuse
of office may be actionable. A lot of malfunctions are quite trivial in nature, and yet an
irritation of a great dimension that the citizens concerned only need a higher authority to
intervene and direct the anomaly and the issue is rectified. Some need an immediate and
quick intervention than resort to the waste of time, energy and resources involved in
litigation.
▪ 5. Lastly, the Ombudsman is a very important institution for government to receive
feedback from the public on the activities of its officers and general polices and mode of
administration of the government. The easy access to the Commission will also encourage
the citizen to approach the office whenever there is a special need to do so.

❖ OMBUDSMAN OFFICE AND HUMAN RIGHTS COMMISSION IN

TANZANIA
❖ THE PERMANENT COMMISSION OF INQUIRY (PCE)
▪ The permanent commission of Enquiry was first national human rights institution in Africa
to be introduced by then and was also one of the earliest commonwealth ombudsman office,
predating the creation of parliamentary commissioner for administration in united
kingdom.
▪ The PCE was set up in 1966 on the recommendation of presidential commission on
establishment of democratic one-party state, the Permanent Commission of Enquiry (PCE)
was established through the Interim Constitution of Tanzania, 1965 and an Act of
118
Parliament No. 25 of 1966 this was an attempt to establish a mechanism of
accountability as an alternative to the west minister style in which Tanzania had inherited
from Britain.
▪ This institution was made during the period of Arusha declaration and the policy of
socialism and self-reliance119 one among of its resolution was to instill in the administrators
an ethic of public service and general policy of restraining officials’ income (salaried and
other wise) to prevent the emergence of a bureaucratic bourgeoisie.120
▪ In this period the primary function of the Permanent Commission of Enquiry (PCE) under
the Act was to investigate cases on mal-administration of government officials, therefore
the commission had power to call witness and document and search premises. The
commissioners are immune from prosecution and may not give evidence in court on
proceeding of PCE or evidence which it has gathered and also PCE cannot be challenged
in court except on ground of lack of jurisdiction. 121 The commission had jurisdiction in
both Tanzania mainland and Zanzibar but until 1984 it jurisdiction was exercised only in
Tanzania mainland.
▪ Following the failure of (PCE) in performing the duty of which it was established, lead to
the demands for the establishment of Human Rights Commission in the Country. Further
118
The permanent commission of enquiry Act of 1966 come into operation in 6 th march of the same year.
119
Patrick M. Norton (1973). The Tanzanian Ombudsman. International and Comparative Law Quarterly, 22, pp 603-
631.
120
http://journals.cambridge.org/article_S0020589300030839
121
Leonard F.M(2000) Human rights commissions and ombudsman offices; national experience throughout the world
,Kluwer law international publishing programs, The Hague, Netherlands pg 745.

progress was made, following the 13th amendment of the Constitution of the United
Republic of Tanzania 1977 in the year 2000 under Articles 129 to 131, the PCE was
abolished; instead the Commission for Human Rights and Good Governance was
established with the role to oversee the protection and promotion the principles of human
rights and principles of good governance 122.
❖ WEAKNESS OF PCE WHICH LED TO FORMATION OF CHRGG
▪ The Permanent Commission of Enquiry was facing a number of criticisms which weakened
its position such its weaknesses are:-
▪ It was a purely advisory body since it could not enforce its own recommendations. Its
functions depended on the President since the latter had powers to intervene in most of the
activities vested on the Commission.
▪ It was part of the Executive and therefore very difficult to control its counter-parts.
▪ It started at the time when the Bill of Rights was not enshrined in our Constitution and
therefore most of the violations could not have been enforced in courts.
▪ Since it lacked power to disclose the identity of the persons inquired to the National
Assembly, then it was not easy to get much assistance from the National Assembly to
challenge actions of the Government.
▪ Since most of its investigations and recommendations were confidential, then there was no
room for members of the public to know clearly the way the Commission conducted its
duties and the end results.
▪ Constitutional and statutory Restrictions imposed on the Commission
The PCE had no limitless powers. There were some restrictions imposed by the laws establishing
it and these were;
▪ It had no power to make any inquiry against the Union President or the President of
Zanzibar
▪ Had no power to inquire on any decision passed by any judge, magistrate or any judicial
officer in the exercise of his judicial functions
122
Constitutional changes were reinforced with the enactment of the Commission for Human Rights and Good
Governance Act, 2001, [Cap 391 R.E 2002].

▪ The President had power to stop it from entering in any premises if he is of the opinion that
such entry would prejudice national security or international relations
▪ The President had power to stop production of any evidence to the PCE on reasons similar
to the one above
▪ The President had power to stop any process inquiry if it is against public interests
❖ ESTABLISHMENT OF CHRGG
▪ The 13th Constitutional Amendments of 2000 123
introduced and established the
Commission for Human Rights and Good Governance repealing the former Permanent
Commission of Enquiry. Such amendments were to the effect of repealing Part I of Chapter
6 of the 1977 Constitution and replaced it with a new Part I which now carters for the
Commission for Human Rights and Good Governance [hereinafter to be referred to as
CHRGG]. Article 129 [1] of the Constitution of United Republic of Tanzania, 1977 as
amended from time to time establishes CHRGG. It is therefore the constitutional creature.
▪ Article 129 [2] of the Constitution provides for the composition of CHRGG. The
Commission is composed of;
a) A Chairman, who should be a person qualified for appointment as Judge of the High
Court or Court of Appeal
b) A Vice-Chairman appointed depending on which part of the Union the Chairman
comes from
c) Not more than Five Commissioners appointed from amongst persons who have
knowledge, experience and a considerable degree of involvement in matters relating to
human rights, law, government, politics or social affairs
d) Assistant Commissioners
▪ As per Article 129 [3] of the Constitution, all Commissioners and Assistant
Commissioners shall be appointed by the President after consultation with the
appointment committee established under Article 129 [4] of the Constitution.
Although there is no express provision in the Constitution and in the Act as to who
appoints the Chairman and the Vice-Chairman, yet in light of Regulation 9 of G.N
123
Vide Act No. 3 of 2000

No. 89 of 2001 the process for the appointment of commissioners applies also on
the Chairman and Vice-Chairman.
▪ The laws regulating matters of the CHRGG are the Constitution of the United Republic of
Tanzania 1977, as amended from time to time; the Commission for Human Rights and
Good Governance Act, 2001; and the Commission for Human Rights and Good
Governance [Appointments Procedure for Commissioners] Regulations, 2001 124.
▪ The commission plays the dual role of an ombudsman and a human rights commission.
Although this legislation authorized it to operate in both the mainland and Zanzibar,
Zanzibar authorities prevented it from doing so until a parliamentary amendment was
enacted. In May 2006, Union government authorities and Zanzibar officials agreed that the
quasi-governmental (CHRGG) would be permitted to operate in Zanzibar.
❖ FUNCTIONS AND POWERS OF CHRGG
▪ The functions of the Commission for Human Rights and Good Governance are provided
under Article 130 (1) of the Constitution of the united Republic of Tanzania of 1977125 and
section 6 (1) of the Commission for Human Rights and Good Governance Act126.
▪ The powers of the Commission for Human Rights and Good Governance are provided in
section 13 (1) of the Act127, the office of the Commission and any office established under
the Commission is the public office in the service of the United Republic of Tanzania. Also
the Commission is an independent department and the Commissioners should not, in the
performance of their functions, be subject to the direction or control of any person or
authority128.
▪ The Commission under section 15 (1) of the Act, it has been given power to investigate
any human rights abuses/maladministration. And the commission can do so, on its own
initiative or on receipt of a complaint or allegation by either, an aggrieved person acting in
such person's own interest, association acting in the interests of its members, or a person
acting in the interest of a group or class of persons.
124
G.N No. 89 of 2001
125
[CAP 2 R.E 2002] as amended from time to time
126
[CAP 391 R.E 2002]
127
CAPP 391 R.E 2002]
128
Section 14 (1) of the Act and Article 130 (2) of the Constitution

▪ Furthermore, after conducting an investigation, the Commission has been given power to
where appropriate, promote negotiation and compromise between the parties concerned;
or cause the complaint and the findings of the Commission to be reported to the appropriate
authority or person having control over the person in respect of whose act or conduct an
investigation has been carried out by the Commissioner; or recommend to the relevant
person or authority such measures, or requiring that authority to take such measures, as
will provide an effective settlement, remedy or redress129.
▪ However, under the Act, Section 15 (3) of the Act130 empowers the Commission to institute
proceedings in Court and seek appropriate remedy which may be available from the court.
❖ WEAKNESS OF CHRGG
▪ The Commission for Human Rights Good Governance replaced the Permanent
Commission of Enquiry which had a number of weaknesses.
▪ But still the Commission for Human Rights Good Governance still leaves a room where
public officials can temper with its power:-
▪ Under section 7(2) of the Commission for Human Rights Good Governance Act 131 gives
power to the President to appoint commissioners and Assistant-Commissioners.
▪ The Act provides that The President shall, acting upon recommendations of the
Appointments Committee, appoint the Commissioners and Assistant Commissioners. Just
like from its predecessor the Permanent Commission for Enquiry under Article 68 (l) The
Permanent Commission shall comprise a chairman and two other members who shall be
appointed by the President132.
▪ This gives room for the President who is a public officer to appoint persons who will
represent his interest and not the interest and will of the majority. So the Commission for
Human Rights Good Governance Act 133 just like its predecessor gives room for public
officials to temper with its power. Also the president is not bound to follow the
recommendations of the Appointments Committee and there is no provision which binds
the president to follow the recommendations of the Appointment Committee.
129
Section 15(2) of the Act
130
[CAP 391 R.E 2002]
131
[CAP 391 R.E 2002]
132
The Interim Constitution of Tanzania of 1965
133
[CAP 391 R.E 2002]

▪ The President is also given powers to remove from office a commissioner as per Section
10 of the Commission for Human Rights Good Governance Act 134. A Commissioner may
be removed from office only for inability to perform the functions of his office, due to
illness or to any other reason, or for misbehavior inconsistent with the ethics of office or
any law concerning ethics of public leaders.
▪ Also under Article 68 (5) of the Interim Constitution of Tanzania135, 1965 provides that, a
member of the Permanent Commission may be removed from office by the President only
for inability to discharge the functions of his office (whether arising from infirmity of body
or mind or from any other cause) or for misbehavior.
▪ This gives a room for the President to remove a member of the Commission who will not
stand for the interests of his office. Also the procedures as stipulated under section 10(2)
of the Commission for Human Rights Good Governance Act 136still favour the President
since the tribunal for investigation is appointed by him.
▪ The President can bar any investigation to a certain person also the President of Zanzibar
is exempted from any investigation by the Commission and the Commission is also
required to submit some reports to him. This is according to section 16 (1) of the
Commission for Human Rights Good Governance Act 137 . Also just like the former
Commission under section 14(1) of the Permanent Commission of Enquiry Act138 provides
that the President may stop the Commission to investigate things which would be injurious
to the public interests national security or International relations.
▪ This gives room for the both President that is President of United Republic and
Revolutionary Government to not to be investigated in the actions which will involve mal-
administration in their offices. Also it gives power to the President to stop investigation.
This also gives room for the President to stop the investigations of the Commission, so the
President temper with its power.
▪ The Commission has no ability to make an order of command. It can make only
recommendations in pursuance to Section 17 (1) of the Commission for Human Rights
134
[CAP 391 R.E 2002]
135
Act No. 45 of 1965
136
Ibid
137
Ibid
138
Act No. 25 OF 1966

139
Good Governance Act . The Commission proceedings has the status of a
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. Also Permanent
Commission of Enquiry lacked any power or authority of its own and it can only
recommend to the President, whom it has no power to investigate.
▪ The recommendation of the Commission has no legal binding and can be neglected by the
public officials. This gives a room for the public officials to temper with the power which
the Commission has been given to protect and preserve the human rights and investigations
of violation of the human rights.
▪ The Act does not give the recommendation of the Commission a status of a court order nor
does the Act pronounces legal enforceability of the recommendations of the Commission
by the court, silence of the Commission for Human Rights and Good Governance Act 140
has led to human rights violations tycoons-the government to refuse to compensate the
eviction victims. In which in the court’s decision in Ibrahim Korosso & 134 Others
Together With LHRC v AG & Others 141 . The enforcement of the decision of the
Commission was seen to lack legal binding and therefore not enforceable in law.
▪ Also The CHRGG delivered its decision in December 2004 in favour of the complainants,
ordering the government to pay a total amount of Tshs.890, 523,950 /= to the villagers as
compensation for the foregoing ordeal. The CHRGG also ordered for reinstatement of
villagers back to Nyamuma village, However the Government through a letter from the
Attorney General refused to comply with the foregoing CHRGG recommendations.
▪ The special report of the Commission should be taken to the President but surprisingly, in
financial matters, the Commission is responsible to the parliament as provided under
section 30(1) of the Commission for Human Rights and Good Governance Act 142. Reports
of the Commission are sent to the National Assembly through the Minister and this may
influence the content which is to be tabled before the National Assembly. Also its
predecessor under section 16 of the Permanent Commission for Enquiry Act 143 which
139
[CAP 391 R.E 2002]
140
[CAP 391 R.E 2002]
141
(2005)(HC),Unreported
142
Act No. 7 of 2001
143
Act No. 25 OF 1966

provides that save as may be directed by the President, the Commission shall not disclose
the contents of any report made to the President.
▪ This gives room for the President as public officer either to disclose or not to disclose the
report submitted to him by the Commission. If the President chooses not to disclose the
report submitted by the Commission to the public. The president will be tempering with its
power given to adjudicate all matter which relates with human rights and good governance
in Tanzania which is provided under the Constitution of United Republic of Tanzania.
❖ SUCCESS OF CHRGG
▪ Commission for Human Rights and Good Governance has some success compared to
the little success of the Permanent Commission of Enquiry.
▪ The Commission for Human Rights and Good Governance has power to institute
proceedings in court and seek appropriate remedy unlike the Permanent Commission of
Enquiry.
▪ The Commission for Human Rights and Good Governance recommendations though are
not binding but it is given a room to bring the complaints to the High Court and later to the
Court of Appeal. The PCE had no power to institute a case before a court of law. It was
just an advisory body which only makes recommendations.
▪ Also the Commission is not involved in the current activism of condemnation of death
penalty, there is no doubt that the Commission promotes and protects economic and social
rights for example, where the manner through which the social evictions was carried out
was alleged to be violation of several economic and social rights, including the right to
housing, the right to food the right to property and the express denial of the alternative
settlement to the victims of the eviction. But the Permanent Commission of Enquiry has
not involved itself in various activisms.
▪ Also raises awareness on the public on the functions and powers vested and how can a
citizens enjoy its services, in ensuring the good administration to the people, the
Commission creates awareness to them about general public functions and powers vested
to the agents or offices in their administrative machinery. Therefore, ombudsman enables
people to be aware on the maladministration
▪ Therefore, the commission succeeds in investigating some of the complaints of the citizens
and recommending on necessary measures to be undertaken. Through investigation, it

enables them to come up with good conclusion. A good example here is the investigation
in the famous Nyamuma Village Case where, the commission concluded that there were
violations of human rights and principles of good governance.
▪ The commission has resolved the disputes on its jurisdiction in Zanzibar and now it has
opened its offices in that part of Tanzania. The Commission expands its functions so as to
solve dispute within its jurisdiction, hence succeeds to that effect.
▪ Raising awareness on the general public. The public is now aware of various mal-
administration practices which are done by the public officials. The Commission has
employed various means of communication such as Televisions, Radios, Newspapers and
moot courts. Unlike the PCE the Commission was not popular to the public. The public
was not aware of its function.
❖ DIFFERENCES BETWEEN PCE and CHRGG
▪ The former had no power to institute proceedings in court and seek appropriate remedy
while the latter has that power
▪ Appointment procedures in the former were entirely relying on the powers of the President
but in the latter the President has to make consultation with the appointment committee
▪ The latter was formed at the eve where there was no Bill of Rights in the Constitution and
the state was under single party system which hindered effective operation of it while the
latter is operating in circumstances where by information can be derived from various
political sources and humanitarian activists.
❖ QUESTIONS FOR FURTHER REFLECTION
▪ Different from its predecessor, the legal frame work establishing the commission for
Human Rights and Good Governance is tailored in such a way that it leaves no room for
the other public officials to temper with its powers. Critically discuss
▪ The Human Rights Commission is a toothless backing dog and in any way cannot serve as
a place where a victim of Human Rights abuse can run to. Critically discuss.

TOPIC 6: PROCEEDINGS BY AND AGAINST THE GOVERNMENT
❖ BRIEF HISTORY OF GOVERNMENT PROCEEDINGS IN ENGLAND

▪ Originally at common law, the government/state was protected against civil
liabilities on the basis of the Latin Maxim Rex Non Potest Peccare that is the king
can do no wrong. This was sometimes known as the doctrine of sovereign immunity
which arose form the notion that the English Monarchy was sovereign and could
not be liable for damage to its subject .
▪ The doctrine originated in the case of Russel v. Men of Devo144, where it was held
that unincorporated town could not be liable for damage caused by a defective
bridge.
▪ The only claim which could be brought against the government was by way of a
writ known as Petition of rights limited to contract and some property actions.
▪ However, democratic struggles in 1920’s demanded among other things a need to
equate the government with other persons equally before the court of law.
▪ Changes were seen in England through the crown proceedings Act, 1947 which
abolished the procedure of petition of rights and made it possible for the
government to be sued in all civil wrongs.
❖ BRIEF HISTORY OF GOVERNMENT PROCEEDINGS IN TANZANIA
▪ Although in England the Crown proceedings Act, 1947 was passed to enable the
government to be sued just like other private persons in court of law, yet in British
colonies, including Tanganyika, it was not easy for one to sue the Government.
After the independence, the law governing suits by or against the Government was
enacted from the one which was used in colonial period.
144
(1778) 2 TLR 667

▪ However, in 1967, the Government sent a bill to the parliament led to the enactment
of the Government Proceedings Act 145 which did not come into effect until 1974
following the amendments made to that law through Act No 40 of 1974. The law
stated that in all suits against the Government, the proceedings shall be instituted
against the Attorney General and a copy of the plaint shall be sent to the minister,
Department or officer alleged to have committed such wrong and shall be instituted
in the High Court by filing it in the Registry to which the claim arose.
▪ In AMANI DAVID MLANGA v IMPREGNATION LTD.146 It was held that: it
was not necessary to obtain the consent of the minister for legal Affairs even if the
court makes an order to join him as a co-defendant in a suit which was already
instituted.
▪ The position in Zanzibar was different from that of Tanzania-mainland. That while
in Zanzibar, as per Section 60 of the Civil Procedure Decree [Cap 8 of the Laws of
Zanzibar 1958 series] there was no requirement of minister’s consent rather if one
wanted to sue the Government had to serve a notice of his intention to sue the
Government sixty days before instituting proceedings and within that notice he
must state the nature of his claim and the place where the cause of action arose.
This was stated in the case of Himidi Mbaye v The Brigade Commander of Nyuki
Brigade, High Court of Zanzibar, Civil Case no.8 of 1981 [Unreported]. In this
case Honourable Msumi, J observed that the purpose of serving a notice of intention
to sue the Government was intended to make it become aware of the nature of the
claim which the plaintiff is claiming against it and where possible to settle the
matter outside the court.
▪ The old common law maxim that the king can do no wrong is neither part of the
contemporary common law system neither is it our part in our system in Tanzania.
This was emphasized by Honorable Samatta. J K (as he then was) in Mwalimu
Paul John Mhozya v. the Attorney General 147 where he said:
145
[Act No 16 of 1967]
146
[1991] TLR 172
147
High Court of Tanzania at Dar es Salaam, Civil Case No 206 of 1993 (unreported)

▪ “The notion, apparently harboured by some people in this country, that the
president of the United Republic is above the law is subversive of the constitution
and the laws. All Government leaders including the president, are like the humblest
citizen, behind to comply with the laws of the country. The maxim the king can do
no wrong has no place in our law even if the word ‘president is substituted for the
word king’ Every one and every institution or organization in this country is
enjoined to pay respect to the principle of supremacy of the law
▪ Therefore in Tanzania, the Government, just like other individual person can be
sued in a court of law in actions like torts, contract, etc.
❖ THE RATIONALE BEHIND GOVERNMENT LIABILITY
▪ To equate the government like any other persons and be held equally liable before
courts of law in case any wrong has been committed by the government in breach
of contract and in tort. That is to say government is liable as stipulated under section
3 (1) and (3) of the government Proceeding Act [CAP 6 R.E 2002].
▪ As matters of contract it is important that the liability assumed by the government
when contracting-out particular functions is property considered and analyzed and,
where necessary is taken into account in assessing the cost benefit to government.
❖ PROCEEDINGS AGAINST THE GOVERNMENT
▪ Where the Government is bound by a statutory duty which is binding also upon persons
other than the Government and its officers, then, the Government shall, in respect of a
failure to comply with that duty, be subject to all those liabilities in tort, if any, to which it
would be so subject if it were a private person of full age and capacity.148
▪ That as per section 3 (1)149 provides that the Government shall be subject to all proceedings
relating to 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
there from may be enforced against the Government;
148
http://www.ulii.org, accessed on 1st August 2017 at 04:38 Hrs
149
The Government Proceedings Act, Cap 5 [R:E 2002]

▪ As well as section 4 150 corroborate by including the law relating to indemnity and
contribution then shall be enforceable by or against the Government in respect of the
liability to which it is so subject as if the Government were a private person of full age and
capacity.
▪ Therefore the power to institute the suit against the government is being provided as per
section 6 (1)151 that; civil proceedings may be instituted against the Government, and not
otherwise, that is to say government cannot commit a crime thus to be criminal liable
instead all liabilities shall follow under civil only.
❖ PROCEDURES IN SUING THE GOVERNMENT
▪ Having being provided by the statute the power to file a suit against the government, there
are special procedure to be followed that any person to be allowed to institute or to file the
case as well the procedures differs from the procedures while instituting the suit against
persons;
▪ Thus the procedures for the government proceedings are provided under section 6 (2) 152
that; 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.
▪ Notice of intention to sue, as the first procedure to sue the government, a notice of not
less than ninety days of his intention to sue the Government, before commencing
proceedings in court, notice of intention to sue should be given to the other party, a Final
Notice of Claim gives notice to the defendant of the nature of your claim and that you
intend to start an action against them (see below for information specific to personal injury
claims).
150
151
152

▪ In the case of Wanumbwa v Muhimbili Medical Center or Muhimbili National

Hospital and Others 153, the plaintiff who was an Assistant Accountant was dismissed
from his employment on 24 hours’ notice on 16th day of July, 1991. Being aggrieved by
the said dismissal he referred his grudges to the labour Conciliation Board on 24/7/1991.
His reference was dismissed on a point of limitation. It was time barred; he further referred
the dispute to the Minister responsible for labour matters, now the 2 nd defendant.
▪ The Minister confirmed the decision of the Conciliation Board. He did not believe that he
had exhausted all the legal machinery opened to him, for an address of his grudges. He
believes that his services were wrongly terminated by dismissing him.
▪ Held; he was required to issue a 90 days’ notice to the government. Section 6 of the
Government Proceedings Act, 1967 as amended by Act No.30 of 1994 is relevant.
However, the plaintiff did not comply with that mandatory legal requirement; hence the
suit is incompetent and should be dismissed with costs.
▪ Copy of the claim to the Attorney General, before instituting the claim, and after sending
the intention to sue to the officer/minister concern then, a copy of it must be sent to the
Attorney General about whom the complaint is issued, so that the office of the Attorney
General can prepare for the upcoming suit and to prepare the evidence concerning the
claims of an aggrieved person.
▪ The suit must be opened in the High Court; section 6(4)154 provides that; all 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. That if other procedures are followed
and the suit opened in other courts then it should be quashed away immediately, again
section 7 155 tendered out that no civil proceedings against the Government may be
instituted in any court other than the High Court.
▪ Attorney General may be added as a co-defendant, as per section (5) 156 unless another
person ought to be sued, be sued or be joined as a co-defendant, in proceedings against the
Government. Therefore the Attorney General ought to be joined as the second defendant
153
Civil case no.181 of 2003
154
155
156

since the suit concern the government and to an extent Attorney General represents the
government.
▪ The consent of the Attorney General must be obtained, if there is no consent of the
Attorney General then the suit lacks of its validity, section 6 (3) 157 makes it clear that all
suits against the Government shall, after the expiry of the notice be brought against the
Attorney General, Department or Officer that is alleged to have committed the civil wrong
on which the civil suit is based and then If in any case proceedings have been instituted by
the Government in a Magistrate's Court and the defendant satisfies the court that he has a
claim against the Government; and he has obtained consent under section 6 158 for pursuing
his claim against the Government.
▪ For institution of a suit in normal proceedings, there must be two parties, a subject in
dispute, cause of action and demand of relief. A suit is instituted by the presentation of a
plaint to the court. The plaint should set out the name of the plaintiff, (if there are more
than one plaintiff, the names of every plaintiff) and the name of the defendant (and if there
are more than one defendant, the names of every defendant. 159
▪ Therefore, Application of general law of procedure for suing the government found as per
section 8160 that, 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, so the changes are just found in the procedural matter other things remains
like the suits between private persons.
▪ However the case law provided for the procedures to be null and void since it violates some
provisions in the Constitution of the United Republic of Tanzania, as it was tendered in the
case of; Kukutia Ole Pumbun v Attorney General 161 , The plaintiff Magasha was
employed by the National Pharmaceutical Company but the employment was terminated
in 1991. He considered it wrongful and instituted a trade dispute in the Industrial Court in
1991 at Tabora against the company. At the conclusion of the proceedings the action was
157
158
159
http://www.shareyouressays.com,accessed on 1st August 2017 at 0343 Hrs
160
161
[1993] TLR 159 (CA) The High Court of Tanzania in the case of Peter Ng’omango Vs Gerson
Mwangwa,(1993)TLR.77 was the first to attack the requirement of consent. That decision was followed by the Court
of Appeal decision in Pumbun and Another vs. AG, (1993)TLR 15

dismissed. He felt aggrieved by the decision but he was appraised that no appeal could lie
against it in view of the legal impediment expressed in s 27(1C) 162 that provides that every
award and decision of the Industrial Court shall be final and not liable to be challenged,
reviewed, questioned or called in question in any court save on the grounds of lack of
jurisdiction in which case the matter shall be heard and determined by a full bench of the
High Court.
▪ In his pleadings the plaintiff has averred that this section is at odds with the provision of
art 13 (6) (a)163. Which provides that every person shall, when his/her rights and obligations
are being determined, be entitled to a fair hearing by the court of law or other body
concerned and be guaranteed the right of appeal or another legal remedy (whatever that
may be) against the decisions of courts of law and other bodies which decide on his rights
or interests founded on statutory provisions. It may be observed that this constitutional
provision was already in place and force when s 27(1C) was enacted.
▪ Therefore, unlike the learned Judge from whom this appeal arises, the court find that
section 6164 1974 is unconstitutional for the reasons we have amply demonstrated above.
▪ The Republic has totally failed to show that the said section is saved by the provisions of
the Constitution which allow for derogation from basic human rights. In the circumstances
the court have no alternative but to hold, in terms of article 64 (5) of the Constitution of
the United Republic of Tanzania that section 6 of the Government Proceedings Act 1967
is void. It is accordingly struck down for being unconstitutional.
▪ Thus, those are different position of instituting the suits against the government, however
regarding the institution of the government suit or proceedings still procedures are very
cumbersome that the law are not acting fairly since it tends to protect the interest of the
ruling class while the person aggrieved are not being compensated for the fact that there is
no consent from the Attorney General, that hinders the principle of justice should not only
be done but manifestly seen to be done.
162
The Industrial Court of Tanzania Act, 1968
163
The Constitution of the United Republic of Tanzania, 1977 (as amended)
164

❖ VICARIOUS LIABILITY OF THE GOVERNMENT

▪ In torts, the Government can be held vicariously liable for the torts committed by its
servants. The plaintiff is going to sue the servant who committed the particular tort and the
Government as the master if at the entire tort was committed in course of doing official
duties. As stated in the case of Rev. Christopher Mtikila v The Editor, Business Times &
Augustine Lyatonga Mrema [1993] TLR 60 [HC] it was stated that 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.
This implies that although the Government can be held liable for torts committed by its
servants in official duties yet the servants are not exonerated from liabilities for such torts
committed by them. The right to sue the servant is not affected by the right to sue the
master.
▪ Section 3 [2] of the Act provides that “No proceedings shall lie against the Government in
tort in respect of any act or omission of a agent of the Government unless the act or
omission would, but for the provisions of this Act, have given rise to a cause of action in
tort against that servant or agent or his estate”.
▪ This provision connotes that the liability of the Government shall arise where it is only
established that such liability on tort have arisen against the servant or agent or his estate.
In all such circumstances it has to be established that the servant was actually acting in
official duty. The liability in torts cannot be extended to the Government where the servant
was acting in the frolics of his own.
❖ CONTRACTUAL LIABILITY
▪ If a person enters into a contract with the government and is entitled to certain benefits
thereunder, he can approach a court of law for redress. Breach of contract by the
government, according to C.K Takwani; (2003) Lectures in Administrative Law , is
classified in three categories;
▪ (i) Where the petitioner makes a grievance of breach of promise on the part of the state in
case where an assurance or promise made by the state he has acted to his prejudice.

▪ (ii) Where the contract entered into between the person aggrieved and the state is in
exercise of a statutory power under certain Acts or Rules framed thereunder and the
petitioner alleges a breach on the part of the state.
▪ (iii) Where the contract entered into between the state and the person aggrieved is not
statutory but purely contractual and the rights and liability of the parties are governed by
the terms of the contract and the petitioner complains about breach of such contract by the
state.
❖ JUDGEMENT AND EXECUTION
▪ Section 16 provides that where there is an order including an order as to costs made by the
court in favour of a person against the government, the proper officer of the court shall,
issue a certificate containing particulars of the order.
▪ If the order provides for the payment of money by way of damages or other reliefs, or of
costs, the certificate shall state the amount so payable and the permanent secretary to the
or such other Government accounting officers as may be appropriate shall, pay to the
person entitled the amount appearing in the certificate. Section 16(2)
▪ 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 to in this section. Section 16(3)
▪ Subject to the provision of this Act, any order made in favour of the government against
any person in any civil proceedings to which the government is a party may be enforced in
the same manner as an order made in an action between private persons. Section 17.
➢ ADDITIONAL NOTES
❖ THE ALTER EGO THEORY
▪ The case of Carltona Ltd v Commissioners of Works165 is the building foundation to the
application of the Alter ego theory in Tanzania. In a normal situation the one who is vested
with a particular statutory power must exercise it personally rather than delegating it, but
in the case ministers practically they cannot perform all their functions as they are so
multifarious.
165
[1943] ALL ER 560

▪ So civil servants of different departments in different ministries are there for assisting the
ministers responsible. However they are responsible for everything done in their respective
ministries.
▪ Alter ego is the Latin maxim which means “the other I” or ‘the second self’, the other I is
a distinct from a person’s normal or original personality. This theory is used in different
disciplines of law among others being, corporate law, criminal law and administrative law.
▪ In administrative law the alter ego means that the minister as the head of the ministry and
departments is responsible for each and everything done by third parties (other than him)
in the ministry regardless of the fact that he authorised them to do so or not. The respective
minister is answerable before the parliament for the decision made by officials under his
ministry.
▪ Since the Ministers have multifarious function The Transfer and Delegation of Power
Act166 provides them with powers to delegate powers to any person to perform any duty
vested in him by written law. But it is not all duties are delegable, such duties which are
not delegable include duties conferred or imposed on him by the Constitution, make rules
or to hear appeals and those which he is expressly prohibited from delegating by any other
laws167
❖ THE APPLICATION OF THE ALTER EGO THEORY IN TANZANIA
▪ The applicability of alter ego theory in Tanzania has been verified and explained in the
quotation of the late Mwalimu Nyerere;
Most important of all members must not under any circumstances attack a member of the
civil service in this house. If they believe a civil servant is acting wrongly and that injustice
is in consequence being done it is the minister whom members must call to account.. Then
it is his task to investigate and if necessary, to invoke the disciplinary procedures against
the government servant168
▪ The theory of alter ego can be witnessed in Tanzania as ministers are responsible for
everything going on in their ministries and they are subjected to respond to all questions
asked in the parliament concerning their ministries. Sometimes ministers may resign when
166
Section 3 (1) (a)[ CAP 362 RE 2002]
167
Ibid section 4 (1)(2)
168
Nyerere, J.K. “Freedom and Socialism” (1969), p 94, as quoted in Oluyede…. P.28

they fail to explain or justify misconducts in their ministries. This is supported by different
matters that have risen. These cases were;
▪ The former President Ali Hassan Mwinyi, while he was a Home Affairs Minister. In a
charge of witchcraft in Mwanza, a lot of people died under torture while they were being
investigated under police custody. Through investigation, the police used dirty methods of
torture. He resigned under the doctrine of Individual Responsibility in 1974.
▪ Another recently matter is that of Hon. Margret Sitta, when she was a Minister of Education
and Culture there was leakage of NECTA exams in the year of 2006 and so, as a minister
was accountable to the parliament and when she was asked to justify, she had to do so
although she was not the one who caused the leakage of exams.
▪ The applicability of alter ego theory in Tanzania has some weaknesses, these weaknesses
are as follows;
▪ It leads to irresponsibility to the public servants, this is because they know that they are
doing wrongs within their departments but still not responsible for their wrongs caused,
this creates a great problem to the officials of being irresponsible and not taking good care
for ensuring good administration when performing duties in their particular departments,
and instead ministers are being responsible.
▪ Another weakness of the applicability of the alter ego theory in Tanzania is that, ministers
thought that it is for their own misconduct or fault which can mount to their responsibility
but not for the misconduct which has been caused by the officials under their ministries.
For instance, Transport minister Mr Omari Nundu, said he would not resign because he
had done nothing wrong to warrant the move.
❖ OUSTER CLAUSE OR EXCLUSION CLAUSE

▪ Ouster clauses, Are provisions in the statute which limit or exclude all review jurisdiction
from the court e.g:- the decision of the minister is final decision can not be challenged, for
instance in FIFA the body requires that any person not agreed by the decision should not
use the court of law rather he should use the mechanisms established by the said
organisation or institution.

▪ Legal effect of ouster clause, Also ouster clauses may be constitutional or legislative i.e
in Tanzania once electoral commission mentioned the winning part no one can challenge
it to court as per Article 41 (7) of Cap 2.
▪ In the case of Anisminic Ltd v Foreign Compensation Commission169, It was held that
a determination is not really determination if a tribunal exceeds its jurisdiction, the basic
philosophy is that once administrative wrong doing in decision the ouster clause can not
protect a functional discretion.
▪
“Wabillahi Taufiq Walhidayah Wassalamualaikum Warahmatullahi Wabarakatuh."
*******************************************END*************************************
“I may not agree with what you’re saying but I will defend to death you are right to say what you
believe in"
ENGINEERED
BY
MWAKISIKI, MWAKISIKI, EDWARD
Contacts:
Email: [email protected] or [email protected]
Phone: +255 678 143 774 or +255 757 119 205
Visit: 👉https://muccobs.academia.edu/MMwakisiki
👉http://mwakisikimwakisiki.blogspot.com/2017/06/blog-post.html
👉https://www.scribd.com/uploads/MwakisikiMwakisiki
169 [1969] 2 AC 147



Moshi Co Operative University From The S

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Moshi Co Operative University From The S

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Moshi Co-operative University

From the SelectedWorks of MWAKISIKI MWAKISIKI

Summer April 9, 2017

This work is licensed under a Creative Commons CC_BY International License.

Available at: https://works.bepress.com/mwakisiki-

PREPARED BY Tsar MWAKISIKI, MWAKISIKI,

TOPIC 1: INTRODUCTION TO ADMINISTRATIVE LAW

❖ MEANING OF ADMINISTRATIVE LAW

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) -2-

▪ Definition by Griffith and Street 3

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) -3-

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) -4-

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) -5-

administrative bodies, Delegated legislation-the Rule-making power of the authorities,

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) -6-

❖ REASONS FOR THE GROWTH AND DEVELOPMENT OF ADMINISTRATIVE

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) -7-

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) -8-

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) -9-

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 10 -

TOPIC 2: THE PUBLIC SERVICE IN TANZANIA

❖ LEGAL FRAMEWORK FOR PUBLIC SERVICE IN TANZANIA

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 11 -

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 12 -

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 13 -

▪ DUTIES WHICH A PUBLIC SERVANT HAVE

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 14 -

TOPIC 3: POWERS, LIMITATIONS AND CONTROL OF ADMINISTRATIVE

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 15 -

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 16 -

▪ Legal Justification of delegated legislations

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 17 -

▪ Reasons for delegated legislation19

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 18 -

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 19 -

and implementation of necessary changes in application of the provisions in the light of

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 20 -

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 21 -

❖ FUNCTIONS WHICH CANNOT BE DELEGATED (IMPERMISSIBLE

▪ Essential legislative functions

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 22 -

▪ Ouster of jurisdiction of courts

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Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 24 -

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 25 -

Act 32 , provides a requirement for publication of subsidiary legislation that all

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 26 -

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 27 -

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 28 -

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 29 -

▪ Sub-delegation of judicial powers

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 30 -

47Administrative Law Lecture 2010 Phil Kunjombe

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 31 -

❖ THE RULES AGAINST BIAS:NEMO JUDEX IN CAUSA SUA

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▪ THE AUDI ALTERUM PARTEM

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 35 -

▪ THE BRODER OR WIDE SCOPE OF AUDI ALTERAM PARTEM

Compiled Notes on Administrative Law in Tanzania-Moshi Co-operative University-LLB (2016-17) - 36 -