ADMINSTRATIVE LAW IN TANZANIA (SIMPLIFIED)

General Understanding of the term law, its functions and sources of law in Tanzania. 

 The term ‘law’ can simply be defined as a set/system of rules which regulate social behaviour. 

◦ Such rules are general in the sense that they are not confined to one person rather they apply to a group of human beings. 

◦ Such rules regulate relationship between an individual and another individual (Private law) or those regulating relationship between an individual and a state (Public law). Features/Characteristics of Law  Some of the features of law are;

 ◦ Law is general

  Law does not distinguish one person from another. It regulates general social behaviour. 

◦ Law is normative 

 Normativity of law generally refers to a legal rule that has effect of allowing, prohibiting or imposing obligation. In short it means law is binding to all.

 ◦ Law is prescriptive

  Law prescribes what should be done or not to be done; shows the manner of doing; who should do; and to whom it should be done. 

◦ Law is punitive/coercive/Imperative 

 Law provides sanctions to those who have breached certain prescriptions. It forces those who are unprepared to accept certain circumstances to abide to certain terms and conditions. 

◦ Law is authoritative

 Law imposes authority on persons and through such authority certain persons may exercise certain powers. 

 The following are functions of law; 

◦ Law defines rights and obligations 

◦ Law provides for procedures for conducting certain proceedings or enforcing certain claims 

◦ Law provides powers to authorities 

◦ Law harmonizes peace and order in the society 

◦ Law identifies the sovereignty status of any state 

◦ Law regulates the relationship between individuals and state, etc

SOURCES OF LAWS IN TANZANIA

The Constitution

• Is a document or scheme, which establishes the country's government, defining the power and limits of the three arms of the state ie. the Parliament, the Judiciary and the Executive. The constitution also contains fundamental rules on how the government is to be organized, It declares the powers and limits of each of the organ of the state. E.g Art. 4, and Parts II, III and V of the URTC. It declares also the right and duties of the citizens Art 12 – 29 of the URTC The Importance of a Constitution It saves as a point of reference for citizens when they are adversely affected by government actions as it provides for their rights. It saves as a point of reference for public officials in implementing government policies. It is an expression of ideology or philosophy or political manifesto i.e. reflect government policies and its powers. Provide an organizational framework for government organs i.e. (Executive, legislature and the Judiciary) A constitution is the supreme law of any country from which all other laws whether written or unwritten derive their validity. This means that, no law is valid if it contravenes the provisions of the constitution Tanzania has two written constitutions, that is: The Constitution of the United Republic of Tanzania of 1977 (as amended from time to time) for the Union as well as for Mainland Tanzania and; The Zanzibar Constitution of 1984 for the isles of Unguja and Pemba. Statutes/ legislation What are Statutes? 

• The word statutes refers, to those pieces of legislation enacted by or made under the authority of the' Parliament. 

• Each piece of legislation that is enacted by the Parliament is embodied in a statute called an Act of Parliament 

• Initially a statute starts as a Bill (draft law), which has to be tabled before the National Assembly. 

• Once the National Assembly passes the Bill, to become an Act of Parliament (i.e. law), it must be assented to by the President before it become operational. Delegated Legislation 

• The rules that are made under the authority conferred by an Act of Parliament (also called subsidiary legislation).

• Art 97(5) of URTC empowers the parliament to delegate 

• The Act conferring the power to make delegated legislation is called the Parent Act and the particular section that confers the power is known as the enabling section 

• Often, powers to make delegated legislation are delegated to Ministers, LocalGovernment Authorities e.g. town and municipal councils Customary and Islamic law 

• Customary law as per interpretation of Laws Act , denotes law originating from tribal customs of African people.

• custom may be defined as a rule regulating behavior and reflecting to some extent the ideas and pre-occupations of the community within which it functions. Application of Customary Law 

• Customary rules pertaining to personal matters exist in a codified form under the Customary Law (Declaration) Order NO.1 of 1963, GN. 279 of 1963 and Customary Law (Declaration) Order NO.4 of 1963 GN 436 of 1963. 

• Section 9(1) of the Judicature and Application of Laws Act, Cap.453 governs the application of customary law WHEN APPLICABLE? Between members of community in which rules of customary law relevant to the matter are established and accepted 

• or between a member of one community and a member of another community if the rules of customary law of both communities make similar provisions for the matter 

• Relating to any matter of status or succession to a person who is or was a member of a community in which rules of customary law relevant to the matter are established and accepted 

• In any other case in which by reason of the connection of the relevant issue with customary right or obligation, it is appropriate that the defendant be treated as a member of the community in which such right or obligation arise and it is fitting and just that the matter be dealt with in accordance with customary law instead of the law that would otherwise be applicable. Islamic Law 

• Islamic law refers to a set of binding norms deriving from the Holy Quran. Islamic law applies in Tanzania by virtue of the second proviso to Section 9(1) of the Judicature and Application of Laws Act. 

• Nothing shall preclude any court from applying the rules of Islamic law in matters of marriage, divorce, guardianship, inheritance, waqf, and similar matters in relation to a community which follow that law. 

RECEIVED LAWS 

• Section 2 (2) of the JALA provides for the application of English common law, doctrines of equity and statutes of general application that was in force in England on 22ND JULY1920. 

• These three types of English law are all together commonly referred to as the "received law". 

• Section 2 (2) of the JALA is significant to the present legal system of Tanzania, because in addition to written laws (i.e. local statutes), it permits the application of English law in situations where it is necessary to do so. The Conditions for Application of Received Law 

• It is only where there is no local statute or other law on a given point 

• then courts in Tanzania would refer to the substance of the common law, the doctrines of equity and statutes of general application, which were in force in England on the 22nd July 1920. • The application of English law where necessary, is subject to such modifications, as the circumstances of the country and its people require. 

• What is common law? 

• refers to rules that originated in customs and practices of the people in England and later on accorded judicial recognition in the common law courts in England. Doctrines of equity? 

• Equity generally refers to the ideas of fairness, natural justice and humanity. 

• Doctrines of equity connote the body of rules, which were developed in the English Court of Chancery so as to remedy the inadequacies or harshness of the common law rules. Statutes of General Application ? 

• refers to English statutes, which applied generally to the whole of England and was not limited to any special locality 

• A statute of general application in England can only be applied in Tanzania after a court has decided that it was or is a statute of general application in England and that it could apply in the country as a statute of general application Precedents 

• The system of basing decisions on previous cases is technically called judicial precedent or the doctrine of precedent. 

• Precedents are divided into two types. Binding precedent, that is decisions having binding authority and persuasive precedents, are those, which are only of persuasive authority. 

• Binding Precedents in the context of Tanzania, are decisions of the Court of Appeal and of the High Court. 

• The High Court of Tanzania and Courts subordinate to it are bound to follow decisions of the Court of Appeal, which have not been overruled by a later case of the Court of Appeal or by legislation. Classification of law 

 Law can be classified as; 

◦ Common law and Equity 

 Common law is a body of rules which were developed by the common law courts in England.  In some cases, common law did not afford adequate justice to parties and in order to supplement them, the courts of Chancery in England developed rules to cure mischief of the common law; those rules are known as doctrines of equity. 

◦ Civil and Criminal Law 

 Civil law is a body of rules which define the rights and duties of persons to one another and provides a system of remedies to those who have been injured/affected by acts of others. This body regulates relationships between one individual and another or one juristic person and another. 

 Criminal law is a body of rules which are concerned with acts or omissions which are contrary to public order and society as a whole and which render the guilty person liable to punishment in form of a fine or imprisonment or both. Criminal law is punitive in nature. PLAINTIFF v DEFENDANT-Civil Case 

 REPUBLIC v ACCUSED PERSON (X)-Criminal Case Public Law and Private Law ◦ Public law is that branch of law which govern the relationship between citizens and the state while Private law is that branch of law which govern relationship between citizens. 

◦ A clear distinction between the two branches of law is seen in enforcing certain rights and duties against the state and individual. 

◦ The procedures for questioning actions of public authorities are generally different from those against a private juristic person. Substantive and Procedural Law Substantive Law These are the laws that provide for the rights and duties of the individual persons in a given society. Such rights and duties are mainly found in laws such as Law of Contract, Family Law, Succession Law, Property Law etc. Procedural Law These are the laws that provide for mechanisms as to how the rights and duties laid down under the substantive laws can be effectively enforced. For instance; Civil Procedure Code Act and Criminal Procedure Act. Topic Two: Meaning of administrative law It has been defined by several authors. Ivor Jennings defines it as; The law relating to the administration. It determines the organization, powers and duties of the administrative authorities. Wade defines it as; The law relating to the control of governmental power. 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. M.P. Jain This law deals with the structure, powers and functions of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation. Generally this law can be defined as the branch of public law which deals with powers and duties of administrative authorities, the procedure followed by them in exercising the powers and discharging the duties and the remedies available to an aggrieved person when his rights are affected by any action of such authorities. Or Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. Development of Admin law An increase in the functions of a state in the last two centuries gave way to development of admin law. The state was no longer faced with only the duty of protecting its citizens and ensuring proper running of its administration. There was a need for transformation from a laissez faire state to a welfare state (A state which is facilitator and regulator) Several duties emerged which shaped the role of the administrative authorities towards citizens. That change in duties was necessitated by; Demographic revolution Technological revolution Increase in political activities, etc These increased the role of state in; Provision and distribution of social services like water, sanitation, education, power supply etc There was hence a need to regulate and clearly define the scope of powers of administrative authorities That gave way to creation of complex rules, procedures, regulations and legal principles which can grant and control administrative/governmental powers. These rules emanated from parliamentary legislations and from other discretionary administrative rules. One can summarize the reasons for growth and devt of administrative law as; A rapid change in the philosophy as to the role played by the state. Development in other alternative organs of settling disputes The legislative process was also inadequate to meet all the needs of the community in legislative matters. A need for flexibility in the functions of administrative organs ,etc Nature and scope of admin law 

 This law deals with; 

◦ powers of the administrative authorities; 

◦ The exercise of such powers; 

◦ Where there is misuse of such powers, then how a person affected can be remedied. 

◦ The law harmonizes 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. 

 Various pieces of legislations do delegate some powers to administrative bodies. 

 Such powers may include 

◦ quasi-judicial powers, 

◦ legislative powers, 

◦ investigatory powers, 

◦ directive powers, 

◦ licensing powers etc. 

 In the exercise of such powers the basis of administrative law comes into being so as to control rules and procedures that apply in such matters. 

 Therefore this law deals with the establishment of authorities for protection of public interests and safeguard private interests against administrative arbitrariness or excess of power. 

 With this respect administrative law covers such aspects like political, judicial, parliamentary control of administrative organs. 

 However it does not go to the extent of controlling policy making by ministers or the head of state. 

 All public authorities vested with administrative powers fall under the ambit of the control of administrative law. The exercise of their powers may in one way or the other affect an individual person. 

 Therefore administrative law is there to impose a system of checks and balances and afford an individual such adequate safeguards against state’s arbitrariness. 

 Some of the functions of admin law are; 

◦ Regulatory and control function 

◦ Imperative function ◦ Enhances good administration and adherence to rules of natural justice ◦ Enhances accountability, transparency in the process of governance. 

◦ Enhance democratic participation in such affairs affecting the general community. 

◦ It balance and harmonizes the interests of individual and those of state, etc Topic three OVERVIEW OF THE CONSTITUTIONAL PRINCIPLES 

 Modern constitutions are normally governed by common democratic principles like; 

◦ Rule of law 

◦ Separation of power 

◦ Independence of the judiciary 

◦ Parliamentary supremacy 

◦ Bill of rights The Principle of Rule of Law 

 This principle was propounded by an English Jurist, Dicey. According to him rule of law meant; 

◦ Absolute supremacy of regular law as opposed to the influence of arbitrary powers. 

◦ Equality before the law, ie nobody or class of persons should be exempted from obedience of the law 

 Modern concept of Rule of law is interpreted to mean an ideology through which the exercise of power is legitimated. I.e. the government under rule of law must have proper limits. 

◦ The authority to rule must come from the people. 

 Political or public powers must be authorized by and exercised in accordance with law or rules.  The laws should be made by a representative body duly authorized by the people to make law  The laws should be just and fair 

 The makers of laws should not be the same people who determine what the law means 

 Law should treat all human equally regardless of their origin or socio- economic condition 

 Laws should not be contrary to basic human rights. Doctrine of Separation of powers 

 The principle or doctrine of separation of power was formulated by a French Jurist, Montesquie , to mean; 

◦ The same person should not form part of more than one of the three organs of the State. 

◦ That one organ of the state should not control or interfere with the functions of another 

◦ One organ of the state should not exercise the functions of another. 

SEPARATION OF POWERS IN TANZANIA 

Art. 4 explicitly state that there shall be three organs of State; 

◦ Executive-provided for under Chapter II of the Constitution 

◦ The Parliament-Chapter III 

◦ Judiciary-Chapter V 

ORGANS OF THE STATES 

1. EXECUTIVE It is the branch of the government which entrusted with the enforcement of laws as distinguished from the legislative and judicial branches. Having the function of executing. Executives comprise all officials and public authorities by which functions of government are exercised, include the civil service and armed forces. Executive’s functions are also performed by the police, local authorities and many statutory bodies. 

2. LEGISLATIVE It is the organ of the government which make law. It involves the enactment of general rules determining the structure and powers of public authorities and regulating the conduct of citizens and organization. 

3. JUDICIARY It is the organ of the government which construes and applies the laws. That is can be said its primary function is to determine disputed questions of fact and law in accordance with the law laid down by the parliament. That we can say “....Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of t he country in accordance with the powers conferred on it by law. The courts interpret the laws and see that they are obeyed” that was in the case of R v. Home Secretary, ex p Fire Brigades”union [1995]2 AC 513,567. Is there absolute separation of power? forming part of more than one organ; 

 Art 51 (2] - The PM will be appointed from the House of parliament. 

 55 [4] -All Ministers shall be appointed from the House of Parliament. 

 Before the 14th amendment art. 37(3) the CJ could act as the president in case the VP and speaker are not around or indisposed. Art 62: -The President is part of the Parliament Control or interference 

 Art 46 A – The Parliament may impeach the president 

 Art 50 [3]- Vice President may be impeached by parliament. 

 Art: 53-The PM is responsible to the president. Also the PM and Cabinet are responsible to the National Assembly for the execution of the affairs of the country. 

 Art 63 (3) -The parliament has power to question any administrative action of the government and reject or authorize any government plan. 

 Art 66 [1] [e]- 10 members of parliament to be appointed by the president. 

 Art 90 [2] [b]- where the parliament rejects the government budget, the president may dissolve the parliament. 

 Art 91 [2] At any time the President may summon the House 

 Art 97 Laws are made by the Parliament but cannot come into force unless the president assent them. 

 Art. 30 [5]- T he Judiciary may declare any Act of Parliament illegal; Mtikilas case, Julius Ndyanabo 

 Art 109- Judges are appointed by the president. 

 Art. 118- Chief Justice and Judges of Court of Appeal to be appointed by the president. Exercising the functions of another 

 Different statutes establishes tribunals which are essentially part of the executive to perform judicial functions, eg 

◦ Tax Appeal Tribunal ◦ Fair Competition Tribunal ◦ District Land and Housing Tribunal ◦ Ward Tribunals. Importance of the Doctrine Promote check and balance among the organs of the states  Prevention of authoritarianism by granting a lot of powers on a single person or body of persons. 

 Ensuring the Independence of Judiciary which is the cornerstone of Rule of law 

DOCTRINE OF INDEPENDENCE OF JUDICIALY 

 Judiciary Refers to that branch of the state vested with the judicial power. 

 Its role is to interpret, construes and applies the law. Independent of Judiciary is one of the pillars of rule of law 

 The Constitution provides that the role of administering justice is vested upon the Judiciary. Dimensions/aspects of Independence Judiciary 

 Separation of Judicial powers and personnel: 

 Judicial Immunity 

 Security of Tenure 

 Personal emoluments and remunerations 

THE DOCTRINE OF PARLIAMENTARY SUPREMACY 

 It emanates from the British legal system and it was traditionally known as Parliamentary sovereignty-the unlimited power of the parliament to make and unmake the law. 

 The doctrine simply means the power vested on the parliament as the only organ which is the law-maker. 

 Despite such notion of supremacy of the parliament, nevertheless the parliament has its limits in law making process (That is it is not absolutely omnipotent and omnicompetent): 

 Self Limitation-The parliament cannot bind its successor equally the parliament is not bound by its predecessor. 

BILL OF RIGHTS/ BASIC HUMAN RIGHTS PRINCIPLES 

 Human rights may simply be defined as rights which are inherent in man as a human being.  These rights are not given to a person rather they are inherent and every human being is entitled to enjoy and to have protected. 

 When human rights have been reduced in writing and entrenched in a constitution so as to be part of the constitution, that part of the constitution which contains or provides for these rights is known as Bill of Rights 

IMPORTANCE OF BILL OF RIGHTS 

◦ Where a constitution of a country entrenches a Bill of Rights, individual citizen or a group of individuals with sufficient interest may invoke the provisions of a bill of rights to challenge in court any administrative action which interferes with their basic rights. 

◦ Where a legislature enacts a law which is in conflict with the provisions of the bill of rights, the court can declare such law or any provision of such law unconstitutional and hence null and void. ◦ It promotes the rule of law by setting minimum standards for checking the abuse of power by public officials. 

◦ Where a person is aggrieved and is of the view that his/her right is infringed or is about to be infringed, can institute his petition to the High Court of Tanzania. 

◦ The relevant law which provide for the same is The Basic Rights and Duties Enforcement Act, Chapter 3, R.E 2002-s.4 

 

LEGISLATIVE POWERS OF THE ADMINISTRATION/DELEGATED LEGISLATION Introduction 

• The concept of power: 

• This 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-those which are vested by the state in its agencies or employees; 

 Private-those entrusted on one person against another normally in private relations; 

 General-those which are by law incident to an office. 

• The exercise of power may be: 

 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. 

• The authority is given freedom to assess the situation and see whether there is a need to act or not. 

 Mandatory-when there is duty to act and failure to do so raises some legal consequences. 

• Administrative organs have basically three types of powers: 

 Pure Administrative powers-performing administrative instructions, policy formulation and implementation 

• These powers can be statutory or non-statutory

 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. 

• Quasi-judicial powers are not judicial powers per se. 

• These are powers which have some attributes of judicial powers but not all. 

 Legislative powers 

• The concern on this topic will be on Legislative powers 

• Traditionally this is a primary role of the parliament as a law making body-the doctrine of parliamentary supremacy 

• The parliament however cannot enact laws for every eventuality, therefore a need to delegate such powers to other organs. 

• That has given way to a concept of delegated legislation 

• This simply means entrusting the function of legislating to organ/organs other than the parliament by the legislature itself 

• Why delegating legislative powers; 

 Shortage of time for parliamentary sessions 

 Technicality 

 A need to have flexibility in unforeseen events 

 A need to cover quick actions in time of emergency 

 Increasing in activities of modern administration A need to have laws which are practicable and which can be changed according to the changing circumstance. Examples of bodies that can make delegated legislations 

 Ministers 

 Local authorities/Local government Examples of delegated legislation are 

 Rules 

 By laws 

 Regulations 

 Orders 

 circular Control of delegated legislation 

• The fact that administrative organs are empowered to legislate does not remove the fact that such powers are left without limits. 

• They have to be exercised in conformity with the parent Act that confers such powers. 

• When such power is abused then the by-laws enacted will be declared ultra vires/null and void/invalid. There are two principal ways of controlling delegated legislation: 

 Judicial control 

 Parliamentary control Judicial Control 

• Delegated legislation can be controlled by the court by invoking the doctrine of ultra vires. 

• The court will be able to test the vires (validity) of the delegated legislation by applying two major tests; 

 Substantive ultra-vires 

 Procedural ultra-vires 

• These are the two limbs of the doctrine of ultra vires 

• The power vested on the authority must be exercised within the limits provided by the law. 

• Delegated legislation must be within the borders provided by its parent Act or the Constitution. • One cannot legislate even on matters which the law did not confer power on him. 

• The law that empowers an administrative organs legislative powers will state expressly for what purpose (substance) such powers are going to be exercised for. 

• Going beyond the substance of one’s power is to subject oneself into substantive ultra vires. 

• 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 

 Unreasonableness-Arlidge v Islington Corpn 

 Mala fide 

 Sub delegation 

 Exclusion of judicial review 

 Retrospective effect Procedural Ultra vires This occurs where the delegated legislation fails to comply with certain procedures prescribed by its parent Act. These procedures may be; Requirement of notice of intention to make subsidiary legislation by a particular authority Requirement of consultation to some persons or group of persons who are likely to be affected by a particular legislation Requirement of publication of the subsidiary legislation These procedures will only invalidate a delegated legislation if they are mandatory procedures. Parliamentary Control The parliament does not delegate its legislative powers to other organs and leave such powers to be exercised without its control. Such powers must be exercised only by such persons to whom the powers have been delegated. The parliament will specify in the statute that confer such power on the mechanism of exercising such powers. In Lohia Machines Ltd .v. Union of India [1985] 2 SCC 197 it was stated that; The underlying object of parliamentary control is to keep watch over the rule-making authorities and also to provide an opportunity to criticise them if there is abuse of power on their part. Legislative control can be exercised through the following ways; Laying on Table; Scrutiny committees; 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 This is the doctrine which applies in all kinds of powers vested on administrative authorities. According to it, a delegate cannot further delegate his power. It emanates from the essence that the law that confers certain power on a certain person did not mean to extend such power to any other person other than the one to whom such powers are conferred to. The rationale is that powers must only be exercised by only that person to whom such powers are entrusted to. However, strict applicability of this rule has proven to be impossible with an increase in governmental activities. It is therefore imperative that some of the powers of certain organs have to be delegated to other authorities to facilitate administrative actions. This doctrine applies also on delegated legislation for the fact that it is not possible for a delegate to sub-delegate legislative powers conferred on him to any other person unless where expressly or by necessary implication is provided by the parent Act. 

• The conditions necessary for sub-delegation are; That, if the parent Act permits sub-delegation, then such power has to be sub-delegated only to the persons specified. That, the person sub-delegated must act within the powers conferred on him by a delegate That, where there are conditions stipulated by a delegate to the sub-delegate, then such conditions must be fulfilled. In the case of Blackpool Corpn v Locker (1948) 1 KB 349; The minister was empowered under the Defence Regulations, 1939 to take possession of land. By issuing circulars, he sub-delegated this power to Blackpool Corpn Sub-delegation was within his power The circular contained certain conditions One of them was that furniture should not be requisitioned The Corpn requisitioned the defendant’s dwelling house with furniture The C.A held that the action was Ultra vires 

• Read the following cases: • Tanzania Air Services Ltd v. Minister for labour, AG and the commissioner for labour [1996] TLR 217 

• Juthalal Velji Ltd v The THB Estate Company Ltd [1983] TLR 391 (HC) Topic five: Prerogative and Equitable Remedies

Prerogative orders are common law remedies.

 Under Common law the sovereign was considered to be the source of justice. It was vested with the so called prerogative powers in the interest of justice. Such powers were intended to be used as a shield in upholding the rights and liberties of subjects and in providing effective safeguards against arbitrary exercise of power by public authorities. The orders were exercised by issuing the so called prerogative writs. These common law orders are recognized as part of our statutory law and can only be issued by the High Court. 

 They include;

 ◦ Habeas corpus

 ◦ Mandamus

 ◦ Certiorari

 ◦ Prohibition 

  1. Habeas Corpus One of the most ancient writs known in the Common law of England. It is a Latin maxim which means ‘have the body’ or ‘let the body of the person appear before court’ An important Tanzanian case to read in respect of this case is; Sheikh Mohammad Nassor Abdulla v The RPC, DSM and 2 others, [1985] TLR 1 (HC) 

 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. Therefore to say that the condition for issuing it is only where there is unlawful detention. This was emphasised in R v Home Secretary [1941] 3 ALL ER 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. 2.Mandamus It is an order of the High Court issued against a public authority compelling it to perform a public duty imposed upon it by the Constitution or any other law. The late Mwalusanya, J state the necessary conditions for an order of mandamus to issue in the case of John Mwombeki Byombalirwa v The RC and RPC, Bukoba [1986] TLR 73 (HC 

 The conditions include;

 ◦ The applicant must have demanded performance and the respondents must have refused to perform; 

◦ There should be a public duty to perform imposed 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;

 ◦ The public duty imposed should be of an imperative nature and not a discretionary one; 

◦ The applicant must have a locus standi, that is, he must have sufficient interest in the matter he is applying for;

 ◦ There should be no other appropriate remedy available to the applicant; 

 The rationale behind the order of mandamus was stated in the case of Shah .v. A.G [1970] EA 543 where it was held that a government official cannot refuse to perform a duty which a government through the parliament has imposed upon him.

  Certiorari 

 This is an order sought to quash the decision of a public authority, tribunal or subordinate court where the purported decision is ultra vires. 

◦ The purpose of this order is to ensure that inferior courts and quasi-judicial authorities act within the ambits of their jurisdiction. 

◦ Where such bodies usurp their jurisdiction, then the decisions arising thereafter shall be quashed by the High court through an order of certiorari.

  Read also the case of; 

◦ Abadiah Salehe v Dodoma Wine Co. Ltd [1990] TLR 113 (HC)

 ◦ Assistant Registrar of Buildings v Fredrick G Kibwana 1987 TLR 84 (CA] Prohibition 

 This writ was defined in the case of East India Commercial Co. v. Collector of customs AIR 1962 SC 1893. 

 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.

 ◦ 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. 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. 

 They include; Declaration Injunction 

Declaration This order states the rights or the legal position of the parties as they stand without altering them in any. 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 to understand a certain legal position at its early stages of dispute. Read the case of : The Dar es Salaam Young Africans Sports Club v. The Registrar of Sports Association and Others [ 1981] TLR 278 Injunction 

 It is an equitable remedy issued by the court to the party to proceedings 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. 

 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

  An order of injunction is a discretionary one. Read the case of HANS WOLFGANG GOLCHER V.GENERAL MANAGER OF MOROGORO CANVAS MILL LIMITED [1987] T.L.R 78 Principles of natural justice 

There are three principal rules when discussing the rule of natural justice and are as follows; 

The first is the rule against bias. This entails against departure from the standard of even-handed justice required of those who occupy judicial office. Furthermore the latin maxim ‘nemo judex in causa sua or in propria causa’ express that no man may be a judge in his own cause as effect to this rule. This means that any decision, however fair it may seem, is invalid if made by a person with any financial or other interest in the outcome or any known bias that might have affected his impartiality. In Dr. Bonham’s Case the court held that the College had financial interest in its own judgment and therefore it was a judge in its own cause. A word bias means, influence in an unfair way or a partiality that prevents objective consideration of an issue or situation. There are two types of bias which are pecuniary interest on the subject matter of the litigation and personal interest or also known as kindred or close relationships on the subject matter. On pecuniary interest or financial interest is concerned, the amount involved is irrelevant, in the case of R. v. Farrant, in Wade, William and Christopher Forsyth, Administrative Law 7th Ed, Oxford: Clarendon Press,1994,p. 467 Steven J. stated that the least pecuniary interest in the subject matter of litigation will be enough to disqualify any person from acting as a judge. On those who are kindred or any other relationships, it is important top show that a real likelihood of bias exists, this is because justice should not only be done, but should manifest and undoubtedly be seen to be done. 

The second rule is known as ‘audi alteram partem’, respectively meaning ‘hear the other side’. It is fundamental to fair procedure that both sides should be heard. A decision cannot stand unless the person directly affected by it was given a fair opportunity both to state his case and to know and answer the other side's case. In Ridge v. Baldwin and Others, ((1963))2 All E.R 66 and ((1964)) A.C 40 it was held that the power of dismissal could not be exercised without giving a reasonable opportunity of being heard and without observing the principles of natural justice, the order of dismissal was therefore held to be illegal. Also in the case of Nyirabu and three others V. The Board of Songea boys school Misc. Civil Appeal No. 3 of 1994 HC at Songea(unreported), Samatta J as he was then said that the punishment of expulsion from school can have serious adverse consequences on the life of the students concerned, it would shock the right thinking members of the community that such a penalty can be properly imposed to the student when he had no word to defence. Further more in the case of Mohammed Jawadi Mrouch V. Minister of Home Affairs In this case, the Immigration Authority revoked a resident permit of application without affording an opportunity to be heard on the ground that the applicant is a foreigner. The High Court decided that ‘A foreign alien has no right to stay in a country without a permit, once a permit has been given to him, he can stay until it expires. If it is revoked by on expiry, the Immigration authorities have a duty to give reasons and opportunity to be heard because such a person has a legitimate expectation to leave in Tanzania until the expiry of his permit.’ 

The third rule is the right to know the reason for the decision by the parties. Its latin maxim is ‘nullum arbitrium sine rationibus’. It is upon the court to be responsible enough to adhere and uphold the rights given to both parties and provide reasons as to why they have brought forward their judgments in such a manner. In R. v. Immigration Appeals Tribunal ex parte Khan(Mahmud) Lord Lane C.J. stated that a part appearing before a tribunal is entitled to know what is to which the tribunal is addressing its mind, also the appellant is entitled to know the basis of the fact of which the conclusion has been reached.

  THE POSITION IN TANZANIA 

The Position in Tanzania is the same to that of common law, with the incorporation of the bill of right in the constitution of the United Republic of Tanzania in 1984 the rules of natural justice were made part of the basic law of the land. Article 13 (6) (a) provide inter alia that; “For the purpose of ensuring equality before the law, the state shall make provisions to the effect that Where the right and duty of any person are being determined by the court of law or any other body, such a person shall have the right to be fairly heard and shall have the right appeal against the decision of the court or such other body”. This provision in the constitution gave the rules of natural justice a new face which can no longer be ignored any more. However even before the incorporation of the bill of right the court had kept this principle in Hypolito Cassiano De Souza v. Chairman and Members of the Tanga Town Council, (1961)E. A 377 (Tanganyika). The councilors of the Tanga Town Council made complains against the appellant for using the firemen as his house servants at his home. During the trial in the Finance committee the appellant and his advocate were kept out for same time and later allowed to inter without being told the reason for it and proceeded with the hearing even after the advocate withdraw the case, the decision was given. He unsuccessful applied to the high court for order of certiorari and mandamus asking that the recommendation of the financial committee be quashed and that the committee be directed to hear his appeal in accordance to the rules of natural justice but when appealed to court of appeal of East Africa he succeeded. Again in Mahona v University of Dar es Salaam,[1981] TLR 55 The appellant was terminated from work on disciplinary grounds. He successfully appealed to the Labor Reconciliation Board, the defendant appealed to the Minister for Labor without supplying a copy of the memorandum of appeal to the defendant nor gave him opportunity to be heard by the minister before making decision. He went to high court challenging his termination and seeking declaration that his termination was invalid the court agreed with him that there were breach of the rules of natural justice and indicated that non adhering to these rules render the decision null and void After incorporation of the bill of right the court upheld their position using the article as their authority see in Mtoka S. Mtwangi and 5 Others v. the board of Dar es Salaam Technical College,H.C at Dar,1991(Unreported) the appellants by expelled from college for boycotting for being given diploma instead of an advance diploma without being listened or even present their case before the board. Lugakingira J. granted their application on the basis of lack of observance of the rules of natural justice. In Sylvester Cyprian and 210 Others v The University of Dar es salaam, Appellants were discontinued from studies allegedly for abstaining themselves from examination. The board of Faculty of engineering met and look for an easy way they recommend to the senate of the University who strangely the adopted to the recommendation without listening to the other side to present their case. Granting their application with cost, Kyando J. questioned the logic of absenting 211 from the exam deliberately hence there must be misapplication of University rule. Also in the case of James F Gwagilo v Attorney General,[1994] TRL 73 the plaintiff, a seasoned civil servant, was charged under the Economic and Organized Crime Control Act 1984 and acquitted. Then disciplinary proceedings were instituted against him under the Civil Service Regulations; the proceedings ended in his favour. He was then removed from office by, as stated in the letter communicating the decision to remove him, the President directing that he be removed in the public interest. He filed a suit for a declaration that his removal from office was wrongful. The defendant raised a preliminary point to the effect that the court had no jurisdiction to try the case because the President had a prerogative power to remove a civil servant in the public interest; that civil servants held office at the pleasure of the President; and that the President's decision to remove a civil servant in the public interest could not be enquired into by any court, it was held inter alia that “when removing a civil servant in the public interest, the President is bound to give reasons indicating the public interest to be served; under the Constitution the civil servant so I removed has the right to appeal against, or to apply for judicial review of, that removal and if no reasons are given therefore, that constitutional right will be rendered ineffective and illusory” REFERENCES: 

The Constitution of United Republic of Tanzania of 1977 as amended time to time. 

LEGISLATION 

Judicature and Application of Laws Act, Cap.453

 BOOKS 

A.W Bradely and K.D Ewing,Constitutional and Administartive law 13th Edition,Pearson Education Limited,2003

 Chris Peter Maina, Human rights in Tanzania, Koln Koppe, 1997. 

C.K. Takwani,Lectures on Administrative Law 3rd Edition, Eastern Book Company,India,2007. 

I.P Massey, Administrative Law. 6th Ed. Eastern Book Company, India, 2005 

Oxford Dictionary of Law 5th Edition. Oxford University Press, London, 2002.