Administration Notes

ADMINISTRATIVE LAW:
FIRST SEMESTER:
Administrative law is the law relating to the control of government power, in other words
Administrative law may be referred to the body of general principles which govern the exercise
of power(s) and duties by public bodies/authorities.
Wade-(administrative law)
Further administrative law is the law governing the organization and the operation of the
Executive branch of government including independent agencies, authorities, tribunals and all
other quasi-judicial bodies; and the relation with relation of the Executive with legislative, and
the judiciary and the public.
Powers of all Public Authorities are subordinated to the law, inter alia Ministers, Local
governments, administrative tribunal and other public authorities.
THE RATIONALE BEHIND POWER OF ALL PUBLIC AUTHORITIES ARE

SUBORDINATED TO THE LAW.
All such subordinated powers have two inherent characteristics.
i. They are all subjected to legal limitations: there is no such thing as absolute or
unfettered administrative power(s).
ii. It is always possible for any power to be abused.
THE PURPOSE OF ADMINISTRATIVE LAW:
The primary purpose of administrative law is to keep the power of the government officials and
all other public bodies within their legal bounds, so as to protect the citizen(s) against their
abuse.
In a summary the powerful engines of the authority must be prevented from running amok.
The court of law are constantly occupied with cases which are nothing more than addressing the
practical application of the rule of law, meaning that the government officials and government
NchallaB.M LLB- IUCO, LLM –PRETORIA, LLM CAMBRIDGE: written by FABIOLA.H. ODIRA Page 1
itself must have the legal warrant for what it does and that if it acts unlawfully (above the law)
citizen(s) has an effective legal remedy. The public must be able to rely on the law to ensure that
all these power vested in various public authorities are used in a way comfortable to its ideas of
fair dealing and good administration after seeing that the rights was infringed, i.e. compensation,
injunction etc.
MUST READ:
Chapter 1 Wade: Administrative Law.
NATURE AND FUNCTION OF ADMINISTRATIVE LAW:
Administrative law is the branch of constitutional law reflecting themselves in the state.
According to Fredrick Engels: a state is a product of society at a certain stage of human

development. It is an admission that the society has become intertwined in an insoluble
contradiction but in order that these antagonisms and classes with conflicting economic interest
might not consume themselves and society in inhospitable struggle; a power apparently standing
above the society (social contract) but placing itself above it and increasingly alienating itself
from it which ultimately is the state regardless of whichever of any state is power, which is state
power.
A state has enormous power- power corruption- absolute power.
The tradition state is dissimilar to the modern state in at the traditional state confined itself to
issues of defense , public order, criminal law, collection of taxes and some few other general
matters. Whereas the modern state provides elaborate social services while undertaking the
regulation of much of the daily business of its citizens.
Therefore inevitably the modern state has given itself all kinds of new duties together with what
the traditional state had, thus the new duties has also created new powers.
Powerful organs of authority have been set in motion in order to cater for the new duties.
Therefore administrative law deals with aspect of the problems which emanates out of the
exercise of the power. There must be constant control such as the political control such as the
political control through the parliament and the judicial control through the court of such power.
It can be said therefore that much of the substance of the administrative law deals with legal
control of power. In essence it is a practical enforcement of the rule of law, i.e. the government
has the legal warrant for what it does and it acts unlawfully, the citizens must have an effective
remedy.
As an indispensable fact, the governments’ power(s) must be limited. The power that the
parliament grants public officials are always subject to numerous restrictions both express and
implied. (Power delegation/ legislation)- (principal legislation) i.e. (express restriction)
Express restriction- Principle legislation
Implied restriction- by laws should be enacted in accordance with the principle legislation – intra
vires but not ultra vires the principle legislation. i.e. presumption of innocence.
For instance the parliament may enact that a minister may make such orders as she/he may deem
fit, but a court may invalidate such order if it does not conform to the principle legislation
authorizing him or her to make such order or if the order violates one of the “judge made laws”.
The protections of the citizens against the abuse of power by the government are one of the
cornerstone objectives of administrative law.
In a nutshell it can be fairly concluded that administrative law is the law relating the control of
governmental power and the like, whether exercised by local authority or central government or
board, whose decision will affects a person’s right.
THE HISTORICAL BACKGROUND OF ADMINISTRATIVE LAW:-
Aspects of administrative law may be traced back to medieval era as applied in England. The
early common law provided a group of prerogative writs associated with the crown. If the king
wished to order something to be done, he could issue a writ of mandamus, meaning that “we
command”. Or if wished to establish whether some officials’ actions were lawful he could ask a
court for a writ of certiorari. These writs were also made available with the permission of the
court to ordinary people.
Writ of the court is fundamental in prerogative order/remedies.
There are records which show that these legal processes were in use as far back as 18th c.
However it was not until the Tudor Monarch in the 16th C that anything like an efficient
administrative system was established under the firm control of the Monarch/his Ministers. At
the center of that administrative system was what was a Privy Council which issued instructions
to local officials known as ;JUSTICE OF THE PEACE.
The Privy Council enforced the law through the Court of “Star Chamber”. During the early 17 th
C, the Monarch tried to develop this into an autocratic law making and law enforcing agencies
(Star Chamber) above both the parliament and ordinary court this led to the great constitution
struggles of the 17th C, which culminated in civil law and the English Revolution 1688. By the
end of the 17th C it was firmly established that only the parliament was to have the law making
powers and the local officials were not to be answerable direct to the MONARCH but were
controlled by the ordinary law. The power of the monarch to control the JUSTICES OF THE
PEACE DIRECTLY was destroyed with the abolition of the Court of Star Chamber in the year
1641 leaving the court of the Kings Bench as the dominant legal machinery for controlling the
justices and other officials.
It was the Kings Bench which developed THE PRINCIPLES OF LAW governing the exercise
of officials powers and one of the first and most important doctrine to be developed by Kings
Bench was the doctrine of “ULTRA VIRES “ meaning that “BEYOND THE POWER”. That an
official would only unlawfully do what the parliament had authorized them to do, if not then the
court would quash them with certiorari (previously by the King at his pleasure).
Other rules which were developed by this court at the early stage were the rule of “NATURAL
JUSTICE”. These are rules which form the strata of the rules of NATURAL JUSTICE” to writ;
the rule against bias, the rule against condemning a person unheard the court have developed a
new rule which is “RIGHT TO KNOW REASON FOR THE DECISION”.
NB: in emergency periods/times, such as war times, Administrative law is hardly or never
exercise as it was in the Second World War in 1939 up to 1945, when it really experienced the
setbacks. However after the Second World War administrative law experienced its Renaissance
especially under the auspices of the UN’s Universal Declaration of Human Rights of 1948.
Thus it can be stated that what constitutes in Human Rights is what administrative law is all
about.
BASIC CONSTITUIONAL PRINCIPLES:
Basic and fundamental constitutional principles which every constitution must contain.
i. SEPARATION OF POWER:
Separation of power is the constitutional doctrine which operates from the premises that the state
has three organs, namely; the Legislature, Executive and Judiciary. The doctrine emphasized on
the non interference in the performance of their respective functions. That one organ should not
usurp or merge function belonging to another organ unless otherwise expressly provided or
incidental to the power conferred to it. The “Legislature” cannot exercise either “executive or
Judicial power”. The “Executive” on the other hand cannot exercise either “Judicial or
Legislative power”, likewise the “Judiciary” cannot exercise either “Executive or Legislative
power”.
In its classical sense, the theory of “Separation of Power” envisaged personal separation of
powers. It is in that same token Montesquieu the most notable exponent of the doctrine on his
book “ De l’esprit des lois” of 1758 translated as “The Spirit of Law” stated that: “when the
Legislature and Executive powers are united in the same person or in the same body or
magistrate, there can be no liberty. Again there is no liberty if the judicial power is not separated
from the legislature, and executive powers were it is joined with the legislative powers: the life
and liberty of the subject would be exposed to an arbitrary control, for the Judge would then be
the legislature. Where it is joined with the executive power, the Judge might behave with
violence and oppression. There would be an end of everything where the same man (body)
exercises these three powers”. It is all about separation of power in organs and people who
exercised the power.
James Madison one of the primary authors of the American Constitution in which this doctrine is
explicitly entrenched stated that “ The accumulation of powers; legislature, executive and
judiciary in the same hands whether of one, a few or many and whether hereditary, self
acquainted or elective may justly be pronounced as the very definition of tyranny”. He meant
vesting all the three powers in one person is similarly to having dictatorship.
SEPARATION OF POWER IN PRACTICE:
In the modern state the rigid application of Separation of powers has been difficult. If not in
practicable though it is still true to acknowledge that the function of the state are divisible into
the said three categories i.e. Executive, legislature and Judiciary, it is rather not practical to
assign these functions exclusively to the three organs.
The three organs do depend on each other even though they have divisible function. The problem
is compounded be the fact that, it is not possible to define the function of the three organs with
mathematical precision and say that the business of the legislature is to make law, of the
executive to execute them and of the judiciary to interpret and apply law to particular facts. All
these impracticability it is because ofthe complexities of the prevailing circumstances of the
modern state.
Therefore due to the impracticability of the doctrine of separation of power as propounded, a

distinction is made between essential and incidental powers of an organ of the state.
One organ cannot claim to exercise the powers essentially belonging to another organ, but may
without infringement of the principle of separation of power exercise some of the incidental
power of another organ. i.e practice.
An eminent writer on Constitutional law one Felix Frank Furter “writing on the public and its
government 1950” lucidly expressed the scenario “functions have been allowed to courts with
Congress itself might have legislated. Matter have been drawn from the courts and vested in
executive. Laws have been sustained which are contingent,upon executive judgment on highly
complicated facts. By this means, congress has been able to move with freedom in modern fields
of legislation which they are great. Complexity and shifting facts calling for technical knowledge
and skills in the administration. Enforcement of the rigid conception of separation of power
would make modern government impossible”.
Separation of power in practice has relaxed the rigid separation of power.
For instance; in the case of Bi.Hawa Mohamed vs. Ali Seif[1983] TLR 32. The Court interpreted
progressively section 114 of the Law of Marriage Act of 1971. Led to a judge made law with an
incidental function of the judiciary deviating /departing from the water traditional sense of the
doctrine of separation of powers is different from practical part.
Thus in order to function efficiency each organ must exercise some incidental powers which may
be said to be strictly of the different character than its essential function. Eg in order to function
efficiently, the court must possess the power of making rules regulating the procedure, even
though that power may be in the nature of legislative power. The power of making rules of
procedure in the courts is not regarded as of essence of the function of the judiciary.
Must read:-
Civil procedure Code- where there are sections and orders within it, and who enacts what
between the section and orders within the Civil Procedure Code?
In spite of that, in interpreting laws and in formulating precedents, the court do in fact perform a
function akin to the law making, in particular when dealing within your problem where authority
is lacking.
In such circumstances the courts have to create the law even though under the color of
interpretation of and deduction from the existing law e.g. in the earlier referred case of Bi. Hawa
Mohamed the court stated that the joint efforts and work towards the acquiring of the assets has
to be construed as embracing the domestic efforts or work of husband and wife.
Subsidiary legislation is another example a function which is purely legislative but which is
delegated upon the executive which are not legislators.
However where as the rigid application of the doctrine does not hold water in modern states, the
principles of checks and balances is underlined in this doctrine to ensure that none of the three
organs of the state can usurp the essential functions of the other organ.
Checks and balances as a principle allow for a system based regulation that permits one branch
of the state to limit another organ in the exercise of the essential powers. It is designed to let each
state organ to restrain interference of essential powers by another organ. Fundamentally therefore
it can be stated that, the principles of checks and balances imposes limits on all organs of the
state by vesting in each organ the right to amend, correct, voice out or void those acts of another
organ that fall within its purview (sphere of operation)
Recommended readings:
Article; 4, 33, 34, 62, 108 and 117 of the Constitution of the United Republic of Tanzania.
Cases:-
Mtikila vs. Attorney General [1995] TLR. 31
LujunaShubiBalonzi vs. CCM [1996] TLR. 203
Mwalimu Paul John Muhozya vs. Attorney General [1996] TLR. 130
PARLIAMENTARY SUPREMACY
The concept of parliamentary supremacy is based on to close linked assumption i.e.
i. The parliament is the organ vested with authority to exercise control and supervision
over the government i.e. budget.
ii. The legislature supremacy of parliament which means that the parliament can without
an inhibition whatsoever pass any law on any topic and affecting any person and
anything there is nothing in respect of which the parliament cannot at any time pass
legislation or amend or repeal it. It derives its legitimacy from its representative
character.
21st NOVEMBER 2012.
EVOLUTION OF THE DOCTRINE OF PARLIAMENTARY SUPREMACY:-
Parliamentary supremacy originates in Europe as part of the bourgeoisie democratic revolution

which in Britain came about through a fairly gradual and non-violent revolutionary process.
Under the feudal order all authority was vested in the crown which sometimes claimed to rule by
divine right. With the decline of the feudal order, the power of the monarchy to rule by divine
right came under challenge as Kings found themselves increasingly dependent on merchant
capitalists. As they depend for funds from them which the Kings need to fight in wars, and keep
themselves in power.
Money became so much important to run the monarch i.e. conquering so as to maintain their
power within the monarchy.
In due course the power of the Monarch to grant monopoly rights and concession and to impose
taxes at will were challenged. Ultimately the principle of parliamentary supremacy developed as
a result of successful challenge to the king’s right and power to raise revenue and control public
spending.
At page three- Wood Philips
Wood Philips and P. Jackson in their book titled “Constitutional and Administrative Law,
(1987) at page 45 have written: “ one of the central themes of English Constitutional theory was
the gaining of control of taxation and national finances in general by the parliament and in
particular the commons. For this control it means that the King was not able to govern for more
that short periods without summoning the parliament and parliament would insist on grievances
being remedied before it granted the king supply of fund. Hence parliamentary supremacy first
emerged by taking over the control of taxation and public finance control from the Crown.
It made the crown dependent upon parliament for authority to raise revenue essentially for the
crowns government to function as no government can function without funds. In times of war,
the Kings attempted to use their prerogative to defend the Kingdom by sanctioning taxation
without the approval of the parliament but the parliament was quick to declare through
legislation that, such practices were illegal. These therefore mark the triumph of bourgeoisie
democracy and parliamentary supremacy in English history.”
PARLIAMENTARY SUPREMACY AS APPLIED IN TANZANIA;-
In Tanzania the principle or the doctrine of Parliamentary Supremacy was firstly introduced by
the Tanganyika Constitution Order in Council of 1961 commonly known as “independent
Constitution”. It introduced some Constitutional principles which were not known to operate as
conventions in the British Constitutional practice.
Such provisions included the power of the parliament to pass a motion of no confidence in the
government and collective ministerial responsibility (Art 53 (2) of the CURT of 1977 as
amended.
Barely a year later i.e. 1962 the independent constitution was replaced by the Republican
Constitution of 1962 which left out those provisions (a motion of no confidence to the minister)
instead it gave the executive enormous powers even making the tenure of parliament dependent
upon the pleasure of the parliament dependent upon the pleasure of the Chief Executive
(president)
The Constitution amendment of 1965 by which one party state and party supremacy were
introduced gave another severe blow to the parliamentary supremacy doctrine and eroded the
parliamentary authority even further.
Regarding the control of the rights and power of the government to raise and spend public fund,
the power of parliament has been through successive constitutions seriously limited.
The parliament is prohibited from deliberating of some financial matters except on a motion by
the government as clearly provided under Article 99 of the Constitution of the United republic of
Tanzania of 1977 as amended.
The written constitution is itself an effective limitation on the powers of the parliament in that no
motion or legislation, which contravenes or is inconsistent with the Constitution of the United
Republic of Tanzania of 1977 as amended; can be passed and remain valid. Some of the positive
trends (Warioba Commission).
“In the doctrine of parliamentary supremacy in Tanzania, the trend on parliamentary supremacy
(positive trend). Somehow started turning back in 1984 when The Constitution was extensively
amended.
The said amendment known as the 5th Constitutional Amendment introduced the Bill of Rights
in the Constitution and also made a formal declaration of the principle of separation of power
under Article 4 of the Constitution of the United republic of Tanzania of 1977 as amended..
Thereof and virtually throughout the Constitution there was a renewed emphasis on the
supremacy of the law under scored the importance of the parliament as the law making body. Art
53(2) of the Constitution declared that Ministers lead by the Prime Minister shall be collectively
responsible to the National Assembly.
For the discharge of the function of the government, thus marking the return of the principle of
ministerial collective responsibility which was removed in 1962 Constitution.
Article 63(2) of the Constitution, one of the positive trends of the parliamentary supremacy in
Tanzania which was amended at its now reads different; “the National Assembly shall be the
principle organ of the Republic which shall on behalf of the people supervise and advise the
Government of the United Republic and all its agencies in the exercise of their functions in
accordance with this constitution”.
The emphasis hence shifted in favor of parliament regains its supremacy as the representative
organ of the people, a role which over years had been lost under the pretence.
An important new provision is Article 100 of the Constitution; which declares the parliamentary
proceeding to be absolutely privileged and not to e questioned anywhere outside the parliament.
Four years later Article 100 of the Constitution was reinforced by the parliamentary immunities,
powers and privileges acts of 1987 which restated that “Nothing said in the National Assembly
shall be questioned in any court of law or other place outside the assembly.”
This legislation further gave all the Members of parliament the freedom to hold public meetings
in the constituencies and required all respective authorities to facilitate the holding of those
meeting whenever required by the Members of the Parliament.
Significance enhancement of parliamentary supremacy was effected by the 8th Constitution

amendment act of 1992; which repealed the provisions for the one party state, along with the
concept of party supremacy which hitherto inhibited the parliament, it also gave the parliament
the power to approve the appointment by the president of the prime Minister before it can take
effect.
In the same year further amendments were made in the constitution through the 9th Constitution
amendment Act of 1992 under which the power to censure the government by passing the
resolution of no confidence to the minister was passed. A loss of office by the prime minister for
whatever reason also entails automatic loss of offices by all other Ministers (the dissolvement of
the whole Cabinet).
This provision gave practical effect to collective ministerial responsibility i.e. Article 53 (a) of
the Constitution under the same amendment of 1992 of the president lost the power of dissolving
the Parliament at any time, the power he had since 1962.Instead the National Assembly acquired
powers by which the president can be removed from office by ‘impeachment’ (Article 46(a) of
the Constitution.
The new provision have enhanced the role and stature of the parliament has being supreme over
the other organs of the state namely the Executive and Their respective institutions. They even
make parliament more powerful than it has been before.
However nowhere in the constitution make an express declaration of parliamentary supremacy in

the way it declares the party to be supreme prior to the 1992 amendment.
Supremacy itself whether of parliament or any other institution has not been defined anywhere in
the Constitution. Therefore it may be more true and safe to conclude that what we have in
Tanzania is the Supremacy of the Constitution and not supremacy of the parliament as it is in
Britain
Why is it so?
This is because the Constitution prescribes limits to parliamentary authority and makes it subject
to judicial interpretations which inevitably tend to limit the parliamentary authority even further.
MINISTERIAL RESPONSIBILTY (IES).
Article 53;(Accountability of the executive).
This is one of the aspect of Parliamentary supremacy of the parliament which is to the effect that
ministers are responsible both individually and collectively to the parliament. ( article 53 (1) of
the Constitution).
It is a means of making the Government sensitive to the feelings of the electorate. The ministers
are called upon to account for their actions of their departmental officers through parliamentary
questions (individual ministerial responsibility) debate etc.
Hand to hand to this is the rule that the Government stands or falls together in that the errors of
one minister are regarded as the error of the entire government and whenever things have gone in
the cause of the Execution of the collective cabinet decision, the doctrine requires that no
minister should exonerate himself/herself from ensuring criticism rather all of them should be
accountable to it.
If a minister is in disagreement with any Government Policy he/she has two options either to try
and convince his/her ideas prevail during the deliberation of a given policy shot of that the only
other remain resolution /option is to resign.
Upon resignation i.e. the said minister can speak out in public on such disagreement and why he
/she resigned.
Furthermore as long as the minister still holds the public office, collective ministerial
responsibility demands that the government should speak in one collective voice usually through
the prime minister.
RULE OF LAW:
Rule of law according to Dicey A.V is one of the basic features of the English Constitutional
system. It has a number of different meanings and corollaries. The origin of the concept of the
rule of law is ascribed to Edward Cock in England when he remained that the King must be
under the God and Law. In this sense he meant the supremacy of the law over the executive
according to him it means: Firstly, absence of arbitrary power on the part of the Government,
which means that the administration possesses no discretionary powers apart from those
conferred by law.
From these, follow the corollary that no man is punishable or can be made to suffer in body or
goods, except for a distinct breach of law established in the ordinary legal manner before the
ordinary courts of the land.
The rule of law has a number of different means and contexts as follows:-
i. In its primary meeting: the rule of law means that, everything must be done in
accordance with the rule of law. Applied to powers of the executives, this rule
requires that; every Government authority which does some act which affects the
citizen’srights must be able to justify its action as authorized by law which is
invariably will be an act of parliament. That every public official or public bodies act
must have a legal pedigree or else the affected person may resort to the court of law
in order to invalidate the Act. This aspect of the rule of law is known as THE
PRINCIPLE OF LEGALITY: To mean every Government action must be backed
with a legal provision.
ii. Absence of arbitrary power on e power of Executive/Government:- i.e. the
Government should be conducted with a frame work of recognized and ascertainable
rules and principles which restricts discretionary power. In the words of Diceyit
means the absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power, and excludes the existence of arbitrariness or even of
wide discretionary authority on the part of the Government. Discretionary power is
nowhere to provided, normally bad if not controlled/necessary evil that we cannot
live without. The rules required that: the Government should be subject to the law
rather than the Law subject to the Government. Whereas, modern Government cannot
be carried on without a great deal of discretionary power, this power is often
conferred in excessively sweeping language. ( it has to have limit) the rule of law in
this context requires that, the courts must attempt to strike a balance between the
needs of the fair and efficient administration, on the one hand, and the need to protect
the citizen against arbitrary use of the Governmental power on the other.
iii. The rule of law envisages that, the law should be heavenly handed between the
Government or Executive and the citizens notwithstanding the fact that, the
Government must necessarily have many special powers. What the rule in this
context requires is that, the government or executive should not enjoy unnecessary
privileges and exemption from the ordinary law. The government is reduced to an
ordinary individual (legal person) and that can be sued through the Government
proceedings Act of 1967.this Act (above) gave an illogical provision for a consent
from the Government itself to be sued but the provision was later amended by Act
No.40 of 1974 which provided a 90 days’ notice.
iv. In another context rule of law envisages that no one should be punished except for
some legally defined crimes. A state cannot be said to uphold a rule of law were it is
said to be breaking this rule by enacting law with a retrospective effect. Such laws are
unjust because that make illegal acts which were lawful at the time when they were
committed.
v. The rule of law envisages Equality Before the law:- according to Dicey it means
equality before the law. It implies equal subjection of all persons to the ordinary laws
of the land as administered by the ordinary courts of law. Thereis complete absence
of any special privileges for a Government official or any other person. Dicey
observed that: “not only that no man is above the law but that every man, whatever be
his or her rank or condition, is subject to the ordinary law of the realm and amenable
to the jurisdictional of ordinary courts…” The most fundamental element in the
principle of equality before the law is that, all laws should be general as opposed to
particular laws made to deal with particular categories of people already identified
above.I.e. any person. (Article 13(1) of the Constitution of 1977 enshrines this
principle in the constitution.
vi. Under the same context of equality before the law, there is a presumption that there
must be an independent Judiciary capable of safeguarding individual liberties against
their encroachment by the stat. that the state should guarantee the tenure, security
emoluments and the independence of judiciary ( Article 107 B of the Constitution
should be guaranteed).
THE RELATIONSHIP BETWEEN RULE OF LAW VS. ADMINISTRATIVE LAW:-
It is sometime said that the rule of law is negation of Administrative law. In fact, the concept
of the rule of law hampered the recognition of the Administrative law in England for a long
time because of the influence of Diceyinterpretation.
Dicey had pointed out that administrative law was alien foreign to England because it meant
several things, for instance the establishment of administrative courts for deciding disputes
between state officials and individuals as they existed in France but not in England.
According to Dicey all these factors were opposed to the rule of law. Dicey believe, although
wrongly, that only England is the sole repository of rule of law. In modern times also, there is
a thinking that the growth of administrative powers which was an inevitable consequence of
planning and welfare activities of the state has come in the way of the rule of law.
There is a greater degree of public control over so many areas which before constituted the
areas of operation of private rights. In carrying out the welfare activities of the state, the
administration had to be armed with greater power and in this process a large measure of
personal freedoms was bound to be eclipsed.
If rule of law is intended to ensure personal freedoms and right and adequate safeguard
against any encroachment on them, then the growth of administrative law seemingly
contradicts the rule of law but in fact, the rule of law emphasized upon rule that the
Executive must act under the law and not by its own whims and feat. The Executive does not
derive the power out of its own accord but derives them from the law.
The rule of law serves as the basis of judicial control over administrative actions (the law is
central to all these organs); they complement each other with the same aim to achieve
Its principle concern like that of the administrative law is to keep the Executive and the
operation of its powers be arbitrary hence there incompatibility between the rule of law and
administrative law.
ASPECT OF ADMINISTRATIVE LAW ON HUMAN RIGHTS:-
HUMAN RIGHTS:-
Are derived from the Bill of Rights which are provisions entrenched in the Constitution
providing for relatively absolute guarantees to the individual and protection from the
interference which his/her freedom.( not all human rights in the Bill of Rights are guaranteed
absolutely.
THE GENESIS OF THE BILL OF RIGHTS:-
The rights in the Bill of Rights of mist modern Constitution were first aired by the rising
bourgeoisie during the feudal era. In England which is a Diaspora in a way were the origin
started, the Bill of Rights can be traced back to the era of King John who was very
oppressive to his people and who as a result of which led by Barons rose up against him.
They promulgated a charter in the year 1215 which was known as Magna Charter 1215: the
King was compelled to assent to the charter. Two months later, a Papal Bull declared it void.
However after the death of King John, the charter was reissued by King Henry III. In the said
charter clauses protected the freedom of an individual went thus, clause 39: “No freeman
shall be taken imprisoned dis seized, out load, burnished or in any way destroyed, nor will he
proceed to prosecute him except by the lawful judgment of his peas and the law of the land”.
Clause provided as follow: “to no one will we sale nor will we deny or delay his rights or
justice”.(since they have a human right touch).
Hence in 1628 King Charles imposes tax by Royal Command without the assent of the
parliament apply the Magna Charter spirit, the parliament passed an act providing that: No
man could be compelled to pay taxes or such other charges without the consent of the
parliament.
Again during reign of King James II, some significant development on the Bill of Rights took
place; that was in the year 1689. The said King favored Roman Catholics and bitterly
opposed to the Protestants. The King directed that seven bishops should be prosecuted for
seditious libel when /what they had done was to present a petition to him. The seven bishops
were acquitted by the court as a result King James had to flee his throne, throwing the great
seal of river Thames immediately after the trial which acquitted the bishops.
Thereafter the declaration of rights was prepared which came to be known as a Bill of Rights
of 1689. The declaration reiterated the liberties of the individual and set limitations to the
exercise of the King’s power.
After obtaining independence in 1776, USA established in September 1787 the Constitution
of the United States, setting out the structure of the president, Senate, House of
representatives etc.
One of the drafter of the Constitution of the United States by the name James Mudson, took a
leading role ensuring that the Bill of Rights in the English pattern was enshrined in the
United states Constitution.
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS OF 1948:
In 1940 Mr. Churchill Winston the British Prime Minister and the then United states
president Franklin Roosevelt and on board in the battleship in the Atlantic and formulated a
statement of principles which were shared by Britain, which was then that war while United
States was not at war but sympathizes with Britain. The statement of principles formulated
was then called the Atlantic Charter.
On the 24th October 1945 the United Nation organization was formed. In December 1948
the General Assembly of the United Nations on 10th December 1948 approved the
universal Declaration of Human Rights which borrowed heavily on the Atlantic Charter.
The declaration set out various human rights in thirty articles and stated that the said Bill of
Rights was for the inhabitants of all the nations of the world, and provided for such rights are
; the right to own property above as well as in the association with others, the right to
freedom of opinion and expression, the right to work etc. although the UDHR was of less
radical effect for lack of means of its enforcement , it had some positive effects as it lead to
the adoption of the European Convention on Human Rights of 1950.
HUMAN RIGHTS IN TANZANIA:
In the late 50’s and early 60’s when most colonies were about to achieve their independence,
the issue of Bill of Rights came to the fore it was being raised by the very powers that
suppressed it for years.
The main concern of the very powers was to protect property accrued during the whole
period of colonialism by the nationals and companies of the colonial powers’, which had to
be protected thus the right to own property and state protection of the same became one of
the main issues as independence.
Therefore in Lancaster House, Britain made sure that a Bill of Rights was enshrined in the
Constitutions of her former colonies, not that they cared a lot about the individual rights and
freedom indigenous people but their concerns was about the property of its nations still in the
colonies after independence.
Unlike many former British colonies Tanzania mainland refused to include the Bill of Rights
in the Constitution. The independence Government argued that the enforcement of the Bill of
Rights would invite conflict between the executive arms of the Government and the
Judiciary. The Government further argued that the rule of law was best preserved not by
format guarantees in the Constitution as a Bill of Rights but by an independent judiciary
administering justice free from political pressure.
Hence the Bill of Rights was again brushed aside in the proposal for the Republican
Constitution in 1962. The presidential commission on the establishment of a democratic one
party state in 1965, also ignored proposals for the introduction of Bill of Rights given to them
by the Tanganyika Law Society, instead some very general rights were provided in the
preamble to the interim Constitution of 1965.
The same repeated in 1977 Constitution in the case of HatimaliAdamjee vs. East Posts and
Telecommunication Cooperation (1973) LRT pg 6. The High Court of Tanzania had an
opportunity of addressing the question of the Status of the preamble to the constitution. The
plaintiff in this case who was a Tanzania of an Asian Origin was employed as a postal
superintendent by the East African post and Telecommunication cooperation. In 1970 he was
compulsorily retired in order to facilitate Africanisation in the Cooperation. He appealed
against the retirement arguing among other things that, it violated the policy of non racialism
and hence argued that his retirement amounted to discrimination against him as Tanzanian of
an Asian origin. His argument was based on the right guaranteed in the preamble to the
constitution, a question before the court was whether a person could enforce the rights
contained in the preamble. The late Justice Biron held that: the preamble to the Constitution
does not form part of the constitution and so does not form part of the law of the land, thus
the plaintiff lose his claims.
Furthermore the issue of the rights of an individual was also held in the High Court in the
case of ThabitNgaka vs. no. 24. In this case the question was the right of a worker to his
wages. ThabitNgaka was employed by the respondent and his wages were being denied.
Instead of basing his case on the preamble; Ngaka relied on the party constitution which was
the first schedule to the Interim Constitution of 1965. The TANU Constitution contained
individual guarantees similar to those provided in the preamble. Among these guarantees was
the just return to ones labour, the then acting justice Mfalila as he then was held that:- in
Tanzania under Article 3(f) of the TANU Constitution workers including Government
workers have a right to their wages and not mere privilege. Therefore Ngaka unlike Adamjee
was, successful in this case . since schedule is legally binding not a preamble.
However in 1977 Constitution, the party constitution by then (CCM) , was not appended as a
schedule to the Constitution. It was not until in 1984 through the 5th Constitutional
Amendment Act of 1984 that the Bill of Rights Ultimately became formerly entrenched in
the Constitution for the first time. The said Bill of Rights is enshrined in part III of the
Constitution.
The Bill of Rights contains both rights and duties of an individual, (Article 12 up to 24-
rights, and Article 25 up to 28-duties). Despite its introduction in 1984, the justiciability of
the Bill of Rights was suspended for three years within the view of enabling the Government
to clean its house by repealing all laws whose continued existence was incompatible with the
exercise of the Bill of Rights.
The procedure for enforcement of the Bill of rights is initiated by filling a petition in the
High Court where three Judges will hear and determine the matter. The Judgment of the court
is the judgment of the majority of the Member Judges constituting the panel. An appeal
against the judgment lies within the Court of Appeal. However, other rules governing the
production of evidence and the procedure are the same as applicable in other cases.
LIMITATIONS OF THE ENFORCEMENT OF THE BILL OF RIGHTS IN TANZANIA:-
The greatest obstacle of the Bill of Rights is lack of awareness among the ordinary citizens.
Coupled with this fact of lack of awareness the timid attitude of the majority of people,
characteristics of one party state still persist in the minds of people.
The other limitation is the conferring of jurisdiction on Human Rights issues to the High
Court alone and worse still that petition to be heard and determined by a quorum of three
judges, this is another obstacle as most of the acts constitution violation of the Bill of Rights
are committed at the grass root level by such law cadre government official as ward and
village Executive officers, whereas the High Court centers are relatively few, under staffed
and at great distance from most parts of the Country.
Another limitation is entrenched in the Constitution itself, Article 30(1): “provides the
Human Rights and freedoms the principle of which are set out in this constitution shall not be
exercised by a person in a manner that causes interference with or curtailment of the rights
and freedom of other persons or of the public interest.”
Nowhere in the Constitution is the definition of public interest provided. Hence depending on
whims of the public official anything may be done by his/her which curtails the rights and
freedom in the name of public interest.
Public interest litigation is curtailed in that for an individual citizen to have a locus standi of
filling a petition he must prove that, the law complained of is affecting him/her over and
above the rest of the member of the community. Short of that, one is required to move to the
Attorney General so that he/she can file the said complaint in court. Otherwise he will have
to prove the locus standi.
In the case of LujunaShubiBalonzi vs. CCM [1996] TLR the CJ said: ‘the problem is that
more often than not, the Government is the most offender as far as human rights is
concerned’. Hence to expect the Government to initiate complaints in such circumstances is
naïve, as the Government cannot embark on the cause of action which is suicidal to itself.
INDEPENDENCE OF JUDICIARY:
The concept of Independence of Judiciary has four main dimensions these are
i. There is the aspect of the separate of judicial power and personnel from the Executive
and the legislature
ii. There is the aspect of the security of tenure for judges and magistrates.
iii. Aspect of security of personal emoluments and remuneration.
iv. Aspect of immunity of judges and magistrates form prosecution and litigation.
THE HISTORICAL BACKGROUND OF THE CONCEPT OF INDEPENDENCE OF

JUDICIARY:
The concept of Independence of Judiciary acquired the said above mentioned four main
dimensions at different times in the history of most nations, within the legal history that are
either applying the common law system or the civil law system.
Even in those old nations in both systems the four dimensions of the independence of
judiciary are yet to be certain and thus still undergo changes and development. Article 107
(B) was entrenched in the Constitution in 2000 concerning the Independence of Judiciary.
However in its modern form the concept of independence of judiciary is traced from 1701
when the Act of settlement of 1701 was passed by the parliament in England representing yet
another triumph of parliamentary democracy over the Monarchy.
Whereas prior to this Act Judges were appointed and held office at the pleasure of the King
or Queen. The Act of Settlement interalia provided that; Judges appointment was for life and
were removable from office not by King or Queen acting in his/her own but by the monarch
acting upon recommendations made by the legislature on the sole ground of misbehavior.
The said Act also provided that Judges salaries where ascertained and established.
In the British colonies however, Judges contained to be appointed and to hold office at the
pleasure of the crown even after 1701 just like any other member of the colonial services.
The constitution of the USA enacted in 1787 after her independence in 1776 also adopted the
British Act of settlement of 1701 by providing that; Judges of the supreme court were to hold
office during good behavior that is to say to hold office for life unless they misbehaved in
which case they could be removed through impeachment by the congress.
Other common law countries like Canada, Australia and Newzealand, upon their
independence adopted a constitutional provision about judicial tenure which is similar to that
found in the British Act of Settlement of 1701.
African states which were ex-British colonies also followed the same pattern in their
respective independence Constitutions.
INDEPENDENCE OF JUDICIARY IN TANZANIA.
The concept of independence of Judiciary may be said to be part of the National Ethic, in that
is one of the ideals reflected in the preamble to the Constitution of The United Republic Of
Tanzania of 1977 as amended. it is pertinent though to look at the concept of the
independence of judiciary in its four dimension and its operation in Tanzania
SECURITY OF TENURE:
The tenure of Justice of Appeal and Judges of High Court is secured by the Constitution
under Article 11o and 120 of the constitution provides for security of tenure for both judges.
In totality the two articles simply provides the following a judge of the High Court or Court
of Appeal shall not be removed from the office by the president except for inability to
perform his/her functions. Whether arising from infirmity of the body mind or any other
cause or for misbehavior.(Article 110(a)- formation of a special tribunal).
Were removal from office is contemplated, the president appoint a tribunal consisting of a
chairman, and not less than two other members. The chairman and at least half of the
members of the special tribunal must be the judges of the High Court or Court of Appeal in
any country of the common wealth.
A tribunal inquires into matter and makes a report to the president. If the tribunal advises
direct the president, that the said judge should be removed from the office. Likewise if the
tribunal advises that, the said judge ought not to be removed from office, the president must
abide by that advice while the question of removing the judge has been referred to the
tribunal the president the president may suspend such judge from performing the function of
his or her office.
Such suspension ceases to have effect if the tribunal advises the president that the said judge
should not be removed from office. Under the Judicial Service Act of 1962 and the
regulations made there under, a resident magistrate once conferred in his/her appointment
hold office until promoted to the higher judicial rank or until the compulsory retirement age
of 60 years, and his removable from office only by judicial service commission established
under Article 112(1) of the Constitution.
The grounds for removal are not specific under the Constitution or any legislation but in
practice resident magistrates are removed from office on grounds similar upon which civil
servants are removed from office by the civil service commission established under the Civil
Servants are removed from office by the Civil Service Commission established under the
civil service commission established under the Civil Service Act of those grounds are
broader and more numerous that those applicable for the removal of Judges.
However of the composition of the judicial service commission ensures that magistrates are
not removed from office on political or any other grounds which endangers judicial
independence.
There is a similar board known as a special commission established under s. 21(b0 of the
judicial service Act of 1962 for primary court magistrate with functions and powers similar
to those of the judicial service commission.
Primary courts Magistrates are removable by this board upon the recommendations from a
regional or District Judicial Board and which the Consent of the Minister responsible for
legal affairs.
PERSONAL EMOULMENT AND REMUNERATION:
Under art.142 of the CURT of 1977 the salaries and pension of judges of the HC and the Court
of Appeal is payable out of the consolidated fund and it’s not dependent on annual parliamentary
debates fund and appropriations moreover the salaries and conditions of services except for
allowances of such a judge. Yet there are no similar provisions concerning the magistrates.
IMMUNITY FROM PROSECUTION AND LITIGATION:-
Judges of HC and Court of App enjoy the same common law protection, enjoyed by judges in
other common law countries, as regards immunity from prosecution or litigation for those acts
done or words said in the performance of the judicial duties.
The position of magistrates is slightly different. Under s.66 of the MCA of 1984. Magistrates are
protected from litigation for anything done or said in the performance of their judicial duties
when the acts or words are done or said in good faith (must).
Judges have blanket protection compared to magistrates.
Magistrates are also protected by common law from prosecution for anything done or said in
their judicial capacity unless it can be proved that the injurious acts or words were done or said
by the magistrate which a corrupt purpose. This also goes for judges
SEPARATION OF JUDICIAL POWERS AND PERSONNEL FROM OTHER

BRANCHES OF THE GOVERNMENT.
The administration of the judiciary in so far as it relates 2 the operation of the Court, the
appointment and supervision of the supporting staff is a matter of concern of the judiciary itself.
The personnel management of the magistrates and judges and as well as the relevant budgeting
and expenditure is the responsibility of the judiciary under the CJ (who is the head of judiciary) –
president of the supreme court e.g. Kenya.
Art. 117 &118 of the CURT of 1977.
PRACTICAL PROBLEMS:- FOR FULL REALIZATION OF THE CONCEPT OF THE

INDEPENDENCE OF JUDICIARY.
There are a no of short comings for achieving complete and independence of judiciary as an ideal
(the way it was ought to be).
One of them relates to the question of personal emoluments and remuneration, as it has been
seen that only judges emoluments and remunerations, are secured but those of magistrates who
constitute the majority of the judicial personnel (it’s a challenge). Their salaries and other
emoluments are by far not commensurate/proportionate to with the heavy responsibility shielded
upon them. This has made them easy pray of corruption temptations
As to security of tenure there is nothing in the CURT which prevent the president from
revealing any judicial office of his/her judicial officer of his/her judicial functions and assigning
him or her other duties of an executive nature. I.e.Werema J, (who is now the state attorney).this
loophole/lacuna may be used to punish bold judges who in the cause of balancing the scale of
justice are branded as anti-government.
On the other hand the separation of judicial powers and personnel from the other branches
of the gvthas impractical continue to deny the Judiciary of professional administrators.
Apart from the registrars (chief registrar and registrar of the court of appeal) the rest of
administrators in the judiciary are “part timers” whose main field of competence is law.
*function of the registrar –civil procedure code
The immunity from litigation and prosecution enjoyed by Judicial officers of all grades has
often been abused by magistrates particularly the one presiding in the Primary Courts
To conclude the problem is aggravated by the absence of transferwhere by a magistrate of a

judge may serve at one working station for over a number of years.
26TH .10.2013.
LECTURE II
DELEGATED LEGISLATION:-
The phrase delegated legislationis not a term of art, it is not a technical term, has no statutory
definition. The most important circumstance leading to the issue of delegated legislation is the
changing character of the state. Actually delegated legislation is the law making power of the
Executive that is delegated to it by the legislature. Delegation of administrative power has
become necessary in the interest of efficient administration of the state. Delegation if it is in full
it has to be stated, a person cannot act as he/she wishes because it will be ultra vires the principle
powers.
Delegated legislation is the general term which includes legislation by authorities other than the
legislature, for instance the bylaws that are normally passed by the municipality are an instance
of such legislation. As a matter of fact the laws made by the parliament can only deal with
certain fundamental or basic principles of legislation the details have to be left to some other
authority, enabling it to frame its rules. Such administration authority will frame the rules and
provide for these details. The process of enabling an authority other than the legislature to make
rules is known as delegation and the rules made in pursuance of such authority are known as
delegated legislation.
NB
Delegated legislation is different from the law making function of the Executive,(known as
Executive legislation/orders- which can exist for a certain period of time).
RATIONALE FOR SUBSIDIARY LEGISLATION:
One of the common grounds advancing for resort to subsidiary legislation is that of shortage of
parliamentary times. The parliament does not have much time to deal only with matters of
legislation. In Tanzania the parliament only meet for time in a year with its longest session, the
budget session lasting no more than 10 weeks. Overall the parliament meets a total of about 18
weeks in a year.
Furthermore modern legislatures do not have time to provide for details, therefore delegated
legislation frees the legislature from concern with details, and thus enables it to concentrate its
attention upon the enactment of the fundamental of a policy.
Technical matters:
modern legislation often deals with the matter of highly technical nature. The members of the
legislature may not have the expert knowledge i.e. necessary for providing the technical details.
Thus delegated legislation can provide such expert knowledge as is necessary.
Need for flexibility:
Since rules are more easily amended than statutes it becomes easier to correct mistakes and to
meet changing conditions, if the difficulty condensesthe details, rather than the basic policy.
Thus delegated legislation brings flexibility to legislation.
Emergency:
In case of emergencies like economics crises, flood, strikes, war etc, there is always a need for
quick action. Actually there may be no time to pass an act even if the legislature is in session.
Quite often such a legislature may not be in session. In such circumstances, the rule making
power under an act laying down broad policies may be very useful. For instance in Tanzania, we
have “the Emergency Powers Act” as revised in 2002.
DISADVANTAGES OF SUBSIDIARY LEGISLATION:
The concept of delegated legislation is also having certain disadvantages. The development of
delegated legislation helps in development of “absolute despotism”.
The first disadvantage is: delegated legislation said to be against the doctrine of rule of law and
separation of power. It may result in concentration of power in the hands of one individual or
organ of the government. And thus can result in an arbitrary action and this in end reduced the
liberty of an individual.
Secondly: impossibility of knowledge of rules: ignorance of law is no excuse, is the main

principle of modern system of administration of justice. Thus everyone is presumed to know the
law because the law is certain and is in a form which can be easily known. However in a case of
delegated legislation… it is not always possible (lack of certainty). Further the vast bulk of rules
framed under various statutory enactments make it almost impossible for an ordinary citizen to
know the rules.
Inadequate publicity:
Publicity is an important control on delegated legislation. As far as modern legislature procedure

is concerned, the draft of a bill is published and is open for public examination and criticism. By
this parliament can get benefit from public criticism and thus can have a look on the loopholes
and lacuna in the bill. However in delegated legislation such prior publicity may not always be
possible. And therefore the process cannot be benefited by public criticism,
Misuse of power by the Executive:
Actually the laws are made by the legislature in democracy. It is the deliberation in parliament
and the consequent action and reaction of opinions that makes law more acceptable to a
community but in the case of delegated legislation is that it is bureaucratic legislation not passed
by the elected representatives. Such power when entrusted to the executive may have serious
consequences on the rights and the liberties of the citizens. It has to be noted that legislature has
no other option but to delegate power to the Executive. Even sometimes delegation is very wide
and the legislature is unable to keep a check on the powers delegated.
JUDICIAL CONTROL OF SUBSIDIARY LEGISLATION:
Judicial control is the most important control on delegated legislation. Delegated legislation can
be challenged in a court of law on the following grounds:
EXCESSIVE DELEGATION:
Whenever the legislature delegates some excessive powers to the Executive authority the
scenario is known as excessive delegation. This kind of delegation that is excessive will never be
permitted and it has always been stricken down by the Judiciary. Not every power can be
delegated.
SUBSTANTIVE ULTRA VIRES:
The plea of substantive ultra vires may be taken up into two ways
1. The statute delegated the legislature power may be attacked on the ground that it is
unconstitutional and that it is beyond the legislature competence of the legislature
enacting it as it infringes fundamental rights..On the other hand substantive ultra vires
may occur where the subsidiary legislation makes a provision which is not authorized to
make by an act of parliament (principle legislation). The parliament delegate wholly to
another body to make laws: This is not allowed by the laws of the land, hence null and
void.
2. The rule of regulation which is made under the statute but travelling beyond the purview
of the parent statute will be procedural ultra vires occurs where an Act of the Parliament
provides for certain procedure to be followed in making subsidiary legislation. The
prescribed procedure must be followed otherwise the said subsidiary delegation will be
invalid for failure to comply with the said procedure. The courts however often drawn a
distinction between mandatory procedures i.e. where failure to comply results in
invalidity of the exercise of power and directory procedures where invalidity does not
follow as a necessary consequence as failure to comply.
In the case of, R vs. Wakiso Estate (1955), ULR 137. The accused was charged with six
counts for violating certain provision of Uganda Employment Rules. The said rules were
made under Uganda Employment ordinance Cap 83. A proviso of s.80 of the said ordinance:
“ provided that rules made under paragraph 1,2,3 and 15 shall be laid before the legislative
council and shall not come into operation until they have been approved either with or
without modification by the resolution passed by the legislative council”.
The instrument creating the said rules read: “ made at Entebbe This 21 May 1946 and
approved by a resolution passed by the legislative council on 30th April 1946”. J.Herton
Hall, The Governor.
The court held that the rules were ultra vires the Parent Act of the Parliament.
Thus apart from therefore mentioned to rules the court has devised other various rules to
control sub legislations in order to ensure that they are kept within bounds and whenever a
sub delegation does not comply with such rules it will be declared invalid and of no effect.
THE RULE OF UNREASONABLENESS:-
Judicial review/control of the reasonableness of delegated legislation confers upon the court a
much wider discretion and power of scrutiny than review limited to the question of vires. In
interpreting statutes, the court may invalidate a piece of legislation on the ground that the
parliament could not have intended powers of sub legislation on the ground that the
parliament could not have intended powers of sub legislation to be exercised unreasonably.
In the case of Alridge vs. Inslighton Cooperation (1909) 2 KB pg. 127. In this case by law
imposed duty on every land lord to cause the premises to be cleansed and imposed a penalty
for breach of the duty, was held invalid on the ground of its being unreasonable because such
a bylaw imposed an absolute duty without considering the fact that the land lord may be quiet
unable to carry out the work without breaking the contract committing trespass.
In another case of NanalalDamodar Kanji vs. Tanga Township Council 1940 TLR pg. 239.
The accused owned a house which was situated at the corner of Akida Street in the Township
of Tanga .on the 12th of June 1939 some old papers were found in the street outside his
house. He pleaded not guilty to the charge under Rule number 25 of the Township rules
which stated: “no person shall throw 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 question which the court was to determine what was the legal effect of the rule no 25.
The said rule was made under section 3 of the Township Ordinance which provided as
follows: “The Governor may make rules to be published in the gazette for health, order and
good governance of Townships and may apply all or any such rules to any township or make
special rules in regard to Particular Township”. The court held that: “Rules and by laws made
under statutory enforceable by penalties are construed like any other provisions encroaching
the ordinary rights of persons, they must on the face of it not be unreasonable or in excess of
statutory power authorizing them, nor repugnant to that statute or the general principle of
law”. A principle of law which Rule no 25 offended against is that an accused is presumed
guilty until he/she proves his/ her innocence. (This is unreasonable).
THE RULE AGAINST SUB DELEGATION:-
The competence of a maker of sub delegation is a very fundamental one, where an

administrative body is by delegation vested by power to make subsidiary legislation,
delegated or approach to delegate this power to some other persons or body this further
delegation is known as sub delegation and it is unlawful.
Sub delegation is based on the principle that “Delegatus non potest delegare”.it means “
Delegate cannot further delegate”. Basically it means when a statute confers legislative
powers on administrative authority and that authority further delegates those powers to
another subordinates authorities/agency that further delegation is incompetent to perform the
such powers “delegates non potestdelegare” conferred to him/her by the delegation.
Generally speaking the parties of sub delegation might vest the power of making rules in the
lower ranks of the Executive. Further preliminary control may becometoo remote to have a
proper control on the delegation.
In the case of RemtulaGulamali vs. R [1936] TLR 203. The governor was given power to
make bylaws under rule number 11of the cotton rules of 1931 for the destruction of the
cotton plants harboring pests and diseases of cotton. This power of exercised by the director
of agriculture and gazetted on 11th October 1935 as general notice number 993. The accused
subsequently contravened it and was fined shilling 3 hundred cash. He appealed against the
conviction.It was held that; “the terms of part II of s.3 of the ordinance do not extend to
confer such powers upon the director of agriculture but upon the governor and the governor
alone. Who is precluded from transferring this power by the principle of law expressed in the
maxim “delegates non potestdelegare” the director of Agriculture is the one who make
orders/rules and the governor had such powers alone.
The general rule is that a delegate cannot sub delegate but there are some exception were
delegates can sub delegate. However on account of legislative supremacy of the parliament,
an Act of Parliament may expressly authorize sub delegation. In such a case sub delegation
may be done and it will be lawful.
On the other hand the parliament has sometimes reinforced this principle by expressly
prohibiting sub delegation of legislative powers. Thus for instance s 117 (1) of the Act no 7
of 1982 and s.77(1) of Act no 8 of 1982 expressly prohibit of Minister for local Government
from delegating his powers to make rules and regulations.
Therefore the general principle is that delegation is always lawful unless expressly
prohibited, but sub delegation is always unlawful unless expressly permitted by the
parliament.
THE RULE AGAINST INCONSISTENCY.
Subsidiary legislation has also to pass the threshold (yardstick) of consistency and were it is
inconsistency with any statute the court will declare it invalid on such a ground. Section
25(b) of the interpretation and General clauses Act provides that: “No order or rule shall be
inconsistent with the provision of any Act”. Under s.2 of this legislation, a subsidiary
legislation is defined as; “any orders of the president , proclamation, rules of the court,
regulation, order, notice, bylaw or other instrument made under any act or other lawful
authority and having legislative effect”.
The principle of inconsistency does not mean that, Delegated legislation cannot deal with the
same subject matter as a statute, rather the principle applies where a subsidiary legislation
makes lawful that which a statuette makes unlawful or the vice versa
Principle Legislation is available to regulate certain matter.
Subsidiary Legislation is also available to prohibit certain matter.
In the case of KoinangeMbiu vs. R (1951) 2 KLR pg 130. The accused (an African) was
accused of growing coffee in an unauthorized area. S.4 of the Crop Production and Livestock
Ordinance of Kenya allowed the Governor to fix by name an area or areas in the colony to
the rules for controlling production might apply. Rule 3 Sub rule 1 of the African Growing
Coffee Rules made under the said ordinance, provided that: “No coffee shall be grown by an
African except on a plantation approved by the Director and situated in one of the areas set
out in schedule A to these rules”. The main issue for determination was whether this rule was
a valid exercise of the power conferred under s.4 of the Principle Legislation. The Court held
that: Rule 3 was invalid because in the first it was in conflict with another statute namely the
Coffee Industry Ordinance. Under this Act any person including an Africa could plant coffee
once he/she obtained a license and he/she could plant coffee anywhere in Kenya except in
native lands area. Rule 3 Sub rule 1 was therefore in conflict with this statute because it
limited the area. In which an African could grow coffee to the plantations in the schedule A
areas only.2ndly S.4 of Crop Production and Livestock Ordinance allowed the Governor to
regulate areas, where as Rule 3 went beyond this by regulating the areas, where as Rule 3
went beyond this by regulating the area of the whole colony not just one area and further by
regulating a particular class of persons namely the Africans rather than an area.
THE RULE AGAINST UNCERTAINTY:
The rule against uncertainty is to the effect that where the language of Subsidiary Legislation
is apparently unclear or ambiguous, the court may declare it invalid.
In R vs. Louis Hermitte (1938) 18 KLR pg 55. Explain the situation. In this case the appellant
was convicted and fined under a bylaw made under S.69 of the Local Government
(Municipalities Ordinance of 1928 of Kenya) which read; “no person shall create any
disturbance so as to be an annoyance to any residence or passengers”. It is significant to note that
this bylaw did not specify in what circumstances, place whether a public or private residence a
disturbance could fall within the meaning of the bylaw. On appeal it was contended that, the
bylaw was ultra vires inter alia because it was uncertain and thus the court held that: the bylaw in
question was uncertain, unreasonable and ultra vires, the powers conferred on the Municipalities
and hence null and void.
Must Read- R vs. Mabula [1984] TLR 89.
PUBLICITY AND PUBLICATION:-
All forms of subsidiary legislation have to be published in the Government Gazette. Publication
is intended to facilitate easy access, actual or presumed to the Subsidiary Legislation by the
public in general. Bearing in mind that “ignorance of law is no defense to a charge violating that
law.
The requirement of publication being mandatory must be complied with. However some acts of
parliament expressly provide that it will not be necessary to publish in the gazette the Subsidiary
Legislation made under those Act, for such Subsidiary Legislation publication may be dispensed
with. A part from easy access to subsidiary legislation the other use of publishing in the gazette
is with regard to the effective date of subsidiary legislation. After piece of subsidiary legislation
comes into force on the date when it says itself, it shall come into force, but there are many
Subsidiary Legislation which do not say when they should come into force, for these date, the
date which they came into force is the date they are published in the gazette. In that case failure
to publish in the gazette will keep Subsidiary Legislation in abeyance and not bringing it into
force as long as it remains not published in the gazette.
In the case of Mwangi vs. Republic (1950) 241 KLR pg 72.
CONTROL OF ADMINISTRATIVE ACTION:
Control of admission may take various forms. It may take the form of public opinion by way of
Complaint, demonstrations, or by way of press through editorial opinion or public forum or by
logging complaint with member of parliament so that s/he can take up the matter to the relevant
minister. But the control of administrative action referred to here is the one which is carried out
public authorities by enumerable act of parliament. Statutory duties also play their part but it is a
mirror one in comparison with powers.
This is because powers confer discretion whether to act or not to act or not to act and also in
many cases what action to take. On the other hand duties are obligatory and allow no option. (no
discretion on this point). It is the element of discretion which raises the most numerous and
difficult problems in the law. (Discretion is problematic). When a question arises as to whether a
public authority is acting lawfully or unlawfully, the nature and extent of its power or duty has to
be found by seeking the intention of the parliament express or implied in the relevant act.
The expression administrative act, comprises three different context, namely:
i. Quasi legislative
ii. Quasi judicial
iii. Purely administrative.
QUASI LEGISLATIVE ACT:-
Done by the administration and consist of making rules, regulations, bylaws etc.
QUASI JUDICIAL ACT:-
Requires that, a public body has to adopt a judicial approach to a question to be decided.
PURELY ADMINISTRATIVE FUNCTION:-
Refers to those functions of administrative authorities which are neither legislative nor
adjudicative in character,I.e. issuing of rules or directions having no force of law to subordinate
administrative authorities. Much as statutory power will be construed as authorizing everything
which can fairly be regarded as incidental or consequential to the power itself. Administrative
bodies have always exceeded what may be reasonably incidental or consequential in the exercise
of their powers. Sometimes they have sought refuge in claiming that, their act is purely
administrative and hence outside the power of judicial review of the court.
On the other hand however, the courts have been jealously guarding their role of being custodian
of the constitution and rights of the citizens enshrined therein. The view of the court has been
that, only the most express words can felter or prevents the otherwise inherent power of the court
in inquiring into the legality of an administrative actionbe it legislative, quasi-judicial or the so
called purely administrative act.
JUDICIAL CONTROL OF THE ADMINISTRATIVE ACTIONS:-
The law regarding judicial control of administrative action is derived from the common law
principle, that the High Court has power to review wrongful administrative acts by declaring
them illegal, by doing so the court do not look on the merits of the administrative act. Because
doing so will be tantamount/equivalent to exercising appellate powers on issues which may not
be subject to appeal. Essentially the courts would be enquiring on the question of jurisdiction
either lack of or default of jurisdiction.
Griffith and street in their book principles of administrative law, the book of 1963 pg 219 defines
jurisdiction as follows: “properly defined, jurisdiction is the marking off, of the area of power.
Something ascertainable at the outset of a process, the conditions on which the right of a body to
act depends”. Just like in administrative legislation (S.L), the courts have also evolved various
devices, means in control of administrative action.
EXCESSIVE OF POWER:-
There are cases where the court will declare that, the act of an administrative body or tribunal is
simply in excess of the powers conferred to it by the law i.e. the authority has simply done the
wrong thing and hence it will declare it void.
Sheikh Brothers LTD vs. Members of controls hotel authority [1949] 23 (2) KLR pg.1.by the
regulation made in 1948, the defense (control of hotels). Regulations, the hotels authority was
empowered to fix a percent of accommodations which should be available to monthly residence
as may be considered reasonable and to vary in its discretion the percentage that has been fixed.
The Hotels authority was also empowered to entertain complaints by hotel residents as to the
management of the hotels and to investigate and adjudicate upon such complaints.
Some residency of Nairobi Salisbury Hotel complained of its management. The hotel authority
thereafter fixed the percentage of accommodation at 100% for monthly residence instead of the
previous figure of 85%. The Sheikh Brothers Ltd (the owners of the hotel) sought to set aside the
decision by way of certiorari (quash of decision) of fixing the percentage of 100% four monthly
residence instead of the previous figure of 85%. It was held that: the control of Hotel Authority
has clearly exceeded its power. The wording of the regulation in allowing that the proportion of
accommodation be fixed required that some comparative relation as may be considered
reasonable must be so maintained between the accommodation fixed for monthly resident and
other residents. That by fixing the percentage of 100% the hotel authority deals away with the
element of proportion.
FAILURE OF EXERCISE OF JURISDICTION:-
Where the law provides for discretion, on a public body to do or not to do a certain act, it is
expected that such discretion will be exercised by the public body upon which such “discretion”
has been conferred. But were such a public body adopts the policy under the influence or
direction of some other authority, it will be deemed that, the public authority/ body exercising
the power has abdicated or surrender its power to the other authority.if the direction or order is
given under the statute such as the transfer and delegation of powers act, then the said direction
or order will be in order. But were an independent authority such as licensing authority obeying
the direction of a minister, whereas the relevant law prescribes for the exercise of discretion by
itself acting at the dictation of the minister meaning that it is no longer exercising its own
discretion as the legislature had intended that should be: this amount to delegation in the form of
surrender or abdication of power i.e. your omitting to do your duty and give that power to
another person to do it on your behalf.
Must-read:- Odendaal vs. Gray (1960) E.A 263:-
ABUSE OF DISCRETIONARY POWER:-
Were a statute allows an authority to act in its discretion, it doesn’t imply that the powers given
are limitless. In spite of the generality of such phrases there must be some limits to such power
both in the interest of efficient administration and all who are affected by exercise of such
discretionary powers. Abuse of discretionary powers occurs were an authority used its power
ostensibly in the further less of statutory acts whereas the actual fact the objective is to achieve
some object outside the purpose or object of the statute.
RE BUKOBA GIMKANA CLUB VS. LIQUOR LICENSE ;( 1963) E.A pg 478.
The applicant was the holder of a liquor license for about 40 years, applied for removal of license
under s.9 of the Liquor Licensing Ordinance to the Bukoba Township Liquor Licensing Board.
Under the Act the board could refuse an application for the renewal of a license in its discretion,
an application by BukobaGymkhana Club was refused on the ground that the constitution of the
club was still largely discriminatory. On this alleged ground, the board pointed out rule 6 in the
Club’s constitution which required application for membership to be supported by to current
members of the club, but the board failed to file the counter affidavit to show that this clause was
being used so an effect racial discrimination. In a letter to a board, the secretary of the club
wrote, they had members of all three nationalities. The club thereafter imposed the writ of
certiorari to invalidate the refuse and the writ of mandamus to order the board to re hear the
application. On these facts the court held that; the board’s decision was based on considerations
extraneous to the proper scope of exercise of the board’s power and hence this amounted to
abuse of discretionary powers.
ERROR OF LAW ON THE FACE OF RECORD:-
It has been already stated that were an inferior tribunal acts within its jurisdiction but erroneously
whether in fact or in law. It may be corrected by appeal, but its decision cannot be challenged.
However were the decision of an inferior tribunal though it has acted within its jurisdiction is
vitiated by:-
i. An error of law:
ii. Which is apparent on the face of record. That, such decision must be invalidated.
Anisminic ltd vs. Foreign Compensation Commission (1969) 2 AC. 147.
The Plaintiff an English Company owned property in Egypt worth 4.4 million pound which was
confiscated in 1956 by Egyptian government, in 1957 the defendant sold the property TEDO an
Egyptian organization for a mere five hundred thousand pound, by a treaty between Britain and
Egypt, they had entered a compensation arrangement to the tune of 27.5 million pounds to be
given by Egypt to Britain for the purpose of compensating the British nationals whose property
had confiscated. A commission known as foreign compensation tribunal was set up to administer
the fund and to compensate the British nationals who qualified for compensation under the
foreign compensation (Egypt) determination and registration of claims order of 1962.the plaintiff
applied to be compensated from the same commission of which refused the plaintiff application
on the ground that he failed to establish his claim under the said order. The plaintiff sought the
declaration that, the determination of the commission was nullity as it misconstrued the order. In
the HC the application was granted. The Court of Appeal reversed the decision of the HC.
Thereafter the plaintiff appealed to the House of Lords (HL). Lord Reid said, “ it has sometimes
been said that it is only when were a tribunal acts without jurisdiction that its discretion is a
nullity but in such cases where although tribunals jurisdiction to enter an enquiry and has done or
failed to do something on the course of the inquiry and has done or failed to do something on the
course of the inquiry which is of such a nature that and its decision is a nullity…” it may have
given its decision in bad faith or made a decision which it had no power to make, or fail in the
cause of an inquiry to comply with the requirement the natural justice or it may in perfectly
misconstrued the provision giving its power to act so that it fail to deal with the question remitted
to it and decided some questions which was not remitted to it, it may fail to take into account, or
it may have based its decision on some matters which under provisions it has it up it had no right
to make. I do not intend this list to be exhausted but if it decides a question remitted to it for
decision without omitting any of these errors; it is much entitled to decide the matter wrongly as
it had to decide it or rightly”.
PRINCIPLES OF NATURAL JUSTICE:-
As far as traditional system is concerned, it is bound by strict formalities, traditions and rules and
regulation. However that requirement is dispersed and dispensed within case of administrative
bodies and tribunals. These bodies do not follow the strict rules as mentioned in procedural laws
and evidence law. However they are definitely bound by principles of natural justice .these
principles not only secure justice but also prevent miscarriage of justice. Not even the
administrative tribunal and bodies but also the ordinary courts of law follow these principles.
Now the question arises, what are actually the basic principle of natural justice?It has once been
observed by an English Judge Hermilton that, the expression natural justice is sadly lacking in
precision, that the romantic word “natural” is itself question begging as justice is far from being
a “natural Concept”. And as the closer one goes to the state of nature, the less justice one finds.
As a matter of fact, the case of natural justice is fairness, but fairness is itself flexible, pragmatic
and relative concept. Natural Justice is the concept varying content, yet or none the less, if there
is an irreducible minimum and the core of the concept then it can be said that, traditionally
natural justice has been confined to twin rules, namely: that
i. A man may not be a judge in his or her own case expressed in a Latin maxim
“Nemojudex in causasua” and the other
ii. Is no man should be condemned unheard. Expressed in Latin maxim “Audi
alteramparterm” meaning hear both parties. And the third one has been added
recently
iii. Reasons for the decision.
By developing the principles of natural justice, the courts have devised a kind of code of fair
administrative procedure. Just as they can control the substance of what the public authorities do
by means of rules relating to reasonableness, repugnancy etc. so through the principle of natural
justice they can control the procedure by which they do it. The concept has a very wide and
general application in numerous areas of the discretionary administrative power and with the
ever growing governmental power. Over the individual citizens in which observance of natural
justice renders it intolerable in ensuring that, however wide the power of the state and however
extensive the discretion they confer, such power is exercised in a manner which is procedurally
fair, Hence the sum total of natural justice is fair play in action.
WHEN DOES A DUTY TO OBSERVE NATURAL JUSTICE ARISE:-
It is not easy pigeon hole the circumstances in which a duty to observe the principle of Natural
Justice may arise. However it can generally be said that a duty arises whenever it is particularly
important to an individual who is directly affected by a decision, that a fair procedure should be
observed. Hence whenever the exercise of power directly affects a man’s right or his property
character. It is more likely to be subject to principles of natural justice. So is the decision which
follows the procedure comparable to that of litigation.
HISTORICAL BACKGROUND OF THE CONCEPT OF NATURAL JUSTUCE:-
The list background of the concept of Natural Justice is said to be as old as life itself. It is traced
from the biblical times the example given is that, even before God punished Adam and Eve for
breaking the rules of Garden of Eden, he gave them an opportunity of being heard first before
giving out punishment for them. In its medieval guise; Natural Justice rule of requiring impartial
adjudicators and fair hearing, were regarded as part of the immutable order or things, so that in
theory, later on even the power of the parliament could not alter them.
BONHAM’S CASE (1610):-In this Dr. Bonham, doctor of physics at the university of
Cambridge, was ordered to be fined and imprisoned by the college of physicians for practicing
in the city of London without license issued by the said college of physicians. The statute under
the college acted provided that: “fines should go half to the king and half to the college “. CJ
Coke held that; since the college had the financial interest in its own judgment, it was improper
for the college to determine the matter as doing so amounted to being a judge it its own cause. CJ
Coke went as far saying that, the court could declare an Act of Parliament void, if it made a man
a judge in his own cause or was otherwise against common right and reason. Thereafter, the
concept gradually developed in its dimensions. But like most principles of administrative law it
suffered a severe setback during the two WW’s particularly WW2.after the said war there was
the renaissance of natural justice and the UDHR of 1948 gave it a remarkable impetus/force.
However the turning point of the concept of Natural Justice came in 1963 with the decision of
the House of Lords in the case of
Ridge vs. Baldwin [1964] AC 40.Ridge the Chief Constable of Brighton was suspended from
duty after he had been arrested and charged with conspiracy to obstruct the cause of justice. At
his trial, Ridge was acquitted. However during sentencing to police officers from his force who
were charged with him but also were not convicted were mentioned. And the trial judge was
critical of Ridge’s leadership of his force. At a later date, when a corruption charge was brought
against Ridge, the prosecution offered to evidence. Again the judge directed Ridge’s acquittal
but made another comment concerning the leadership of the force. The watch committee mate
the next day and decided that, Ridge should be dismissed. S. 191(4) of the Municipal Co
operations Act of 1882, provide that; “a watch committee could dismiss any borough constable
whom they think his negligence is the discharge of his duties or otherwise unfit for the same”.
Ridge was not asked to attend the meeting but was told that he had been summarily dismissed
and was also told of certain resolutions passed in the meeting. At the request of Ridge’s solicitor
the watch committee reconvened some days later. Having received representations from Ridge
solicitor, the watch committee decided not to change the original decision. Ridge appealed to the
home secretary, the home secretary dismissed the appeal, and Ridge resorted to the court of law.
His action failed and his appeal to the HC failed as well. He then appeal to the House of Lords.
The House of Lords held that; the dismissal was invalid. Lord Reid made the following
observations; “in modern times opinions have sometimes been expressed to the effect that
Natural Justice is so vague as to be practically meaningless but I regard as tainted by the
perennial fallacy, that because something can’t be cut or dried or nicely weighed or measured,
therefore it does not exist. The idea of negligence is equally insusceptible of exact definition and
natural justice has it has been interpreted in the courts in much more definition than that. The
Court therefore held that in the proceedings the watch committee was bound to observe what are
commonly called the Principles of Natural Justice. Before attempting to reach any decision, they
were bound to inform on ground on which they propose to act and give him a fair opportunity of
being heard in his own defense.
THE RULE AGAINST BIAS:-
The essence of this rule is that; a judge is disqualified from determining any case in which s/he
may be or may fairly be suspected to be biased. The word judge refers to anybody whose
decision is bound to directly affect the interest of another person. This is an ancient principle in
common law and it was developed to a view to strengthen the public confidence in the
administration of justice. The principle is based on another principle that justice should not only
be done, but must manifestly and undoubtedly be seen to be done. It should be noted that this
disqualification on the ground of bias applies essential to all quasi-judicial bodies.
The word bias means anything that may tend to cause a person to decide a case other than on
evidence. As a matter of fact a rule that “no man shall be a judge in his own cause” follows from
the fact that a judge must decide impartially between the parties before him/her and s/he should
not have direct interest in the subject of the inquiry which would lead him or her to decide the
matter in favor of one of the parties. In other words s/he should be impartial, neutral and free
from bias.
A line must nevertheless be drawn between genuine and fanciful cases direct pecuniary interest
however small is a disqualification, but this is not to say that, Courts will be tolerant of other
influence which might be suspected of causing bias. In fact in modern cases, pecuniary interest
plays a relatively small part but the courts are vigilant to eliminate anything smacking in any way
of favoritism. On the other hand, personal bias may arise out of blood relation, marital relations,
friendship or hostility. The existence of bias is the question of fact and will have to be proved in
every case. The distinction which was formerly being drawn between judicial and quasi judicial
functions and purely administrative functions and that, the principle of natural justice are only to
apply were the public body is performing judicial or quasi judicial functions is no longer tenable.
Bias is not to be readily inferred and it is difficult to detect both in its effect and in its
likelihood, were there is no personal animus, monetary interest or similar apparent
circumstances. But circumstances of the case are a major guiding factor:
REAL LIKELIHOOD AND BIAS IN FACT:
Two tests have been competing for supremacy foe determining the question of bias;
i. Real likelihood and

ii. Bias in fact (actual bias).
In real likelihood test/formula the test is whether the facts give rise to a “real likelihood” of bias.
Expanding on the “test of likelihood” in the case of
METROPOLITAN PROPERTIES COMPANY VS.LENNON; [1969] 1 QB 577.
Lord Denning MR: states as follows: “the court does not look to see if there is a real likelihood
that he (chairman) would or did in fact favor one side unfairly at the expense of the other. The
court looks at the impression which would be given to other people. Nevertheless, there must
appear to be the, real likelihood of bias surmise or conjuncture is not enough. There must be
circumstances from which a reasonable man would think it likely or probable, that the judge or
the chairman as the case may be would or did favor one side unfairly, at the expenses of the
other. The court will not inquire whether he did in factfavorsone side unfairly suffice it that
reasonable people might think that he did. The reason is plain enough. Justice must be rooted in
confidence and confidence and confidence is destroyed when right minded people go away
thinking that the Judge was biased.” The facts of the case are as follows: a rent assessment
committee had fixed the rent for three flats in one block of flats. The chairman of the committee
was a solicitor who lived with his father in the second block of the flats owned by the same
property group. The chairman of the firm was negotiating about rents with the landlord on behalf
of his father and other tenants in the second block. It was held that; the decision of the committee
must be quashed as no man can be an advocate for or against the party in one proceeding and at
the same time sit as a judge of that party in another proceeding.
In another case of Franklin vs. Minister of Town & Country planning: [1948], All ER 289. A
new towns Act of 1946 empowered the minister after consultation with the local authorities to
make a draft order designating a site of a proposed new town. If objections were made and not
withdrawn, the minister was bound to arrange a local public inquiry and to consider the report of
a person holding the inquiry. while the act was still a bill, the minister made a public speech
stating that; “Steven age would be the first Newtown when the Act becomes law”. He made a
draft order designing Steven age Newtown and the local inquiry was held into the objection
received. Later the minister confirmed the draft order. The validity of this confirmation was
challenged in the court. The House of Lords held that; there was no evidence that the minister
had not genuinely considered the report of the inspector who held the inquiry that, his previous
comments did not amount to bias.
NB: whenever there is any allegation of personal bias the question which should be satisfied is
this; is there in the mind of a litigant a reasonable apprehension that he will not got a fair trial?
The test is whether there is a real likelihood of prejudice that it does not require certainty. Real
likelihood is an apprehension of a reasonable man upraised of the facts and not the suspicion of
the fools and capricious persons
Must read: Jimmy David Ngoya vs. N.I.C LTD [1994] TLR 28.
AN EXCEPTION TO THE GENERAL RULE;
THE RULE AGAINST BIAS.
1. CASES OF NECESSITIES:
In most cases a disqualification could be dispensed with or replaced by someone else to whom
the objection did not apply. But there are some instances where no substitution is possible since
no one else is empowered to act. Natural Justice then has to give away to necessity for otherwise,
there is no means of deciding and the machinery of justice or administration will break down. In
the case of Tolpuh (H) & Co Ltd vs. Mole (1911) 1 KB 836. A court registrar was sued
unsuccessful in his own court & had to tax costs in his favor.
The case of Judges vs. Attorney General of Cap 378 Saskatchewan (1937) 53 TLR at pg 464.
The government of Saskatchewan called upon the court to determine whether the salaries of
judges were liable to income tax. The Privy Council confirmed that, the judge was right to decide
it; as a matter of necessity, where the court held that the salaries of judges were liable to income
tax.
2. STATUTORY DISPENSANTION:
Over the years the parliament in Britain has attempted to mitigate the strict rule against bias by
granting exemption in particular cases. But the courts put a nail interpretation upon such
provisions, holding that; “any departure from the universally acknowledge principles of natural
justice, required clear words of enactment. Hence, the English Licensing Act of 1964 which
provided that; “the acts of any one elected by the office of liquor licensing board and acting in
that office shall be valid and effectual notwithstanding any disqualification. By a subto
interpretation: court confined this provision to what they call the technical disqualification by the
Act. They will uphold an order, if it is shown merely that, one or more of such members falls in
disqualifying provision but they will quash it if in addition it is shown that there was real
likelihood of bias in that particular case.
“AUDI ALTERAM PARTEM”:
It is a fundamental requirement for any fair procedure that, a board, authority or tribunal which is
vested with power to affect the property, liberty or character of a citizen to give him/her an
opportunity of being heard before it proceed. This principle is more far reaching of the principles
of Natural Justice, since it embraces almost every question of fair procedure or due process. It is
also broad enough to include the rule against bias since a fair hearing must be nonbiased hearing.
The courts have succeeded in enforcing the principle varies widely, broadly speaking in all cases
were legal rights or status are affected by the exercise of administrative power.
In the case of REX vs. The University of Cambridge (1723) 1 STR 157. The university deprived
a scholar of his degree in an account of his misconduct in insulting the Vice Chancellors court.
The court of the Kings Bench reinstated him on the ground that: the deprivation was unjustifiable
and that in any case he should have received a notice so that he could make his defense as
require, as Judge Fortesque put it by the laws of God and man.
Throughout the19th and 20th centuries, the courts open up a large new territory for the principles
of natural justice, the character of the authority was not what mattered, what mattered was the
character of the power exercised.
In 1863 a remarkable case played an important in reasserting the principle of the right to be
heard. This was the case of Cooper vs. Ones worth Board of Works 1863 ER. Under an act of
1853 it was provided that “no one must put up a building in London without giving seven days
notice to the local board of works and if any person did not do so, the board might have the
building so that builder nevertheless began to erect the building in ones worth a district in
London without having given a due notice and when his building was in a second floor, the
board of work sent men late in the evening who demolished it. Hence the board did exactly what
the act said they might do in exact circumstances in which the act said they might do it.
Their action was of course purely administrative nonetheless the builder brought an action for
damages of the injury to his building. On the ground that: the board had no power to act without
first asking him what he had to say for himself. In the unanimous decision, the House of Lords
held that; the board of works was liable. Erle CJ “I think the board ought to have given notice to
the plaintiff and to have allowed him to be heard. The default in sending notice to the board with
the intention to build is a default which may be explained. There may be a great many excuses
for the apparent default. A party may have intended to conform to the law; he may have actually
conformed though by accident his notice may have been miscarried, I can’t conceive any harm
that could happen to the district board from hearing the parties before they subjected him to a
loss so serious as the demolition of his building.Willes J stated as follows “I am of the same
opinion. I apprehend that the tribunal which is bylaw vested with power to affect the property of
one of her majesty subject, he is bound to give such as a subject an opportunity to be heard
before it proceeds and that the rule is of universal application and founded on the plainest
principles of Justice. Now, is the board in the presence case such as tribunal? I apprehend it
clearly is”. Another J Byles: said “It seems to me that the board is wrong whether it acted
judiciously or ministerial I conceived they acted judicially because they had to determine the
offence apportion the punishment as well as the remedy… although there are no positive words
in the statute requiring that, the party should be heard yet the justice of the common law will
supply the omission of the legislation.
CASES:
Nakuda Ally vs. Jayaratne 1951.
Ndengwavs Nairobi liquor licensing board 1957
Natural justice in East Africa are the same as in England.
HypolitoCasiano vs. Tanga Town Council (1961) E.A pg 377.
Simon Manyanki vs. IFM 1984 TLR 304.
CrisMaina Book – HR- Reasons for the decision.
JUDICIAL REVIEW:
Although lawyer often speak as if judicial review itself a remedy, it must be noted that it is
merely a procedure for obtaining the prerogative remedies. Prerogative remedies or orders are a
family name for remedies or order of certiorari, mandamus, prohibition and habeas corpus. Thus
properly defined: Judicial review refers to the procedure where by the court investigate the
legality of an action or decision of an inferior tribunal or authority and consequently in a proper
case issue one or more of the requested or petitioned prerogative remedies or orders, and the
source of judicial review is common law. A distinction has to be made between a judicial review
and an appeal
i. The right to appeal is always conferred by statute but that of Judicial Review is
conferred by the inherent supervisory powers by the High Court.
ii. When hearing an appeal the court is concerned with the merits of the decision under
appeal. However when subjecting some administrative act or order to Judicial review,
the court is concerned with its legality.
iii. On appeal the court will often direct itself to the question as to whether the decision
appealed against was decided based on the right or wrong question of the law or fact.
On judicial review the question to be asked by the court is the lawfulness or
unlawfulness of the decision or act complained of.
From this distinction it follows that, some of the remedies which can be obtained from the High
Court in its appellate jurisdiction are not available by way of judicial review.
SOURCE OF THE REMEDY OF JUDICIAL REVIEW:
The power of judicial review is not derived from statutes; it is inherent in the English courts of
QB and KB, depending on who is at the throne for the time being. The extension of this power to
this power to the High Court of Tanzania has been effected through S.2(2) of the JALA,
commonly known as the reception clause.
PRIVATE AND PUBLIC LAW REMEDIES:-
When public and private authorities commit breaches or otherwise act contrary to the law, the
affected persons may sue them to the court where they may be held liable, where just like any
other person may be sued in court. In the case of Municipal of Mombasa vs. Kala [1955] 22
ACER 390.the board was successful sued for trespass when it demolished the respondent’s
house, after service on him of a ultra vires demolition order. Here the respondent used private
law to enforce his rights against a public authority. An order for the award for damages is a
typical private law remedy. However there are many instances in which private law remedy
cannot be available to a wrong committed by public authority for instance, were an application
for license is wrongly refused. In such case, the affected person has to look for other remedies
which will be effective. These are usually public law remedies which have been developed by
court in England over centuries. The remedies are; certiorari, prohibition, mandamus and habeas
corpus which are known as prerogative remedies. They are known so because, originally they
were used by the crownat his/her discretion for the purposes of controlling the conduct of
inferior tribunals or bodies to ensure that, their action are within their jurisdictional limits or are
not otherwise contrary to law. However for the crown of the Royal Court to uphold, legality, it
was necessary for it to be moved by an individual (not suo motto) affected by the illegality.
PROCEDURE FOR PREROGATIVE REMEDIES:-
As they are typical public law remedies, prerogative remedies cannot be issued against a private
individual unless the individual is vested with some administrative power or other powers of a
public nature. These are remedies available for the public authorities or administrative bodies.
Formerly prerogative orders/remedies were a royal monopoly and hence they had to be brought
in the name of the crown at the instance of the person who complained the injustice done to him
that is R vs. The Administrative Board Tribunal.
The foregoing citation is no longer applicable in Tanzania but rather the citation format in
constant use in Tanzania is; the complainant who institute the proceedings is cited as the
applicant; the body/ authority complained against is the respondent together with the Attorney
General (current citation).
The procedure for prerogative orders is not provided in details in any local statute rather the
procedure used is that as was obtained in England on the 22nd July 1920, commonly known as
the reception date as stated in the reception clause.
The law reform( Fatal Accident and Miscellaneous Provisions) Act Cap 310 0f 1968, empowers
the chief justice to make rules of the court to govern the procedure for prerogative orders but to
date no such rules have been enacted by the Chief Justice and hence continued resort to the rules
of practice obtained in England in 1920.
WHAT ARE THE RULES OBTAINED IN ENGLAND?
Crown Office Rule of 1906.
The answer to the question as to what rules governed the practice of the court in England in 1920
July, was given by the court of appeal for Eastern Africa in the case of Dar es salaam Motor
Transport Co Ltd vs. Transport Licensing Authority of Tanganyika and another (1959) ECA 403.
In which it was stated that, the practice and procedure obtained in England on 22nd July 1920 was
that contained in the crown office rules of 1906.
According to crown office rules of 1906, Applicants for prerogative orders are always made in a
two stage process. Firstly the applicant must first apply for leave to apply for the substantive
order s/he wishes to get. The application for leave is made ex parte to the judge in chambers.
After hearing the ex parte application the court; then decides whether to grant to the applicant
have to file substantive application or not.
The purpose of the application for leave is to weed out applications which are frivolous and leave
only those which the applicant has the genuine cause for complaint. At this stage the applicant
must establish a prima facie case. Upon satisfying the court that there is a case, the applicant is
then granted leaves and direction to serve summonsed upon the respondent authorities calling it
to show cause as to why the remedy sought should not be issued.
Second stage; the application sought if made by way of chamber application or motion supported
by an affidavit and the respondent may object by filing a counter affidavit in advance of the date
of submitting argument in support of their respective positions.
The Law Reform Act (fatal) Cap 310 as amended by act no 5 of 1968 and Act no 27 of 1991 and
the JALA are the laws originally cited in applications for judicial reviews.Article 13(6) of the
CURT 1977.
The amended affected by act no 27 of 1991, made it mandatory to serve the attorney general with
a copy of every application for leave even if the remedy sought is not sought against the
Attorney General or ant department of the central government.
The regard to the prerogative remedy of habeas corpus, there is a procedure under the habeas
corpus rules, the rules which were enacted by the criminal procedure code Cap 20, which has
since been repealed, but the rules are saved by the new law i.e. CPA.
*application for leave
* Application for substantive orders.
CERTIORARI:-May be defined as an order of the High Court in the exercise of its inherent
power to quash the decision order, or other similar act of an inferior tribunal or administrative
body or authority. S.2 of JALA read together with Art 108 of the CURT of 1977 effectively save
that inherent jurisdiction of the High Court.( where there is Lacuna and it is not of an appellate
nature.
CPC Inherent power of the High Court.
Suo motto- on its own motion.
The order for certiorari only quashes a decision or order the court does not substitute its own
decision for the one quash. Hence, an order for certiorari does not bar the relevant body or
authority from reconsidering the matter and coming to a new decision in place of the one
quashed
When quashing the decision or order by certiorari it is not for the High Court to direct the
administrative body whose decision is quashed on how to decide when it seat to reconsider the
matter, but naturally when reconsidering the matter, the relevant body or authority is expected to
avoid the irregularities or other deficiencies upon which its earlier decision is quashed by
certiorari.
GROUNDS FOR CERTIORARI:-
To obtain an order for certiorari, the applicant must show to the court one or more of the ground
for certiorari which are:
Either that; the order of the acts sought to be quashed is ultra vires or is made in error of law
apparent on the face of record or in break of the principles of natural justice. It follows that, all
cases relevant to judicial review of an administrative action are generally relevant to certiorari.
Because certiorari will quash the decision, mandamus which compel the administrative body to
make decision, prohibition will prohibit an act in continuance to stop).
Depending on the circumstances of each case, an order for certiorari may be sought and granted
along the one or both of the other prerogative orders of mandamus and prohibition.
One case in which all the three orders were sought and granted is the case of:
FestoBalegele and others vs. Dar es Salaam City Council, HC Dar es salaam, and miscellaneous
Civil case no 90/1991. This case concerned the refused dump. The complainant led others
against the Council in Kunduchi for the turning to a dumping area their plot which caused
nuisance. they applied for certiorari for what the council was doing, prohibition of dumping
refuse and mandamus to search for another area. All these were granted by the High Court.
THE ATKIN DICTUM
At one time the view was held that, the principles of Natural Justice are applicable in acts and
decisions whose maker was the/a body not acting judiciary or in a judicial capacity. The origin of
this limitation of the application of natural justice was in the case of R vs. Electric Commissioner
Ex parte London Electricity, Joint Committee Co (1920) Ltd. [1924] 1 kb 171. The
commissioner has statutory powers for making scheme for joined electricity authorities and the
applicant Co sought certiorari to quash the scheme and prohibition to stop from being carried
out. The HC held that; it was not enough simply to show that the scheme was ultra vires in
addition to that the applicant had also to show that, the commissioners had a duty to act
judiciously.
Lord Atkin said; “ for the writ to go, two requirements must be mate; the body must have legal
authority to determine the questions affecting rights of subject and as an additional requirement,
must have the duty to act judiciary”
Now the last phrase of the above quotation, containing the words the duty to act judiciary is what
has since come to be known as Atkin dictum. However the descent burial was given in the case
of Ridge vs. Baldwin: thus in R vs. Paddington Valuation Officer ex parte Peachey Property
Corporation {[1966] 1 QB 308. Lord Denning referring to the Atkin Dictum held that ; the
valuation officer was subject to control by prerogative order because, “ the valuation officer is a
public officer and trusted with a public duty. He has legal authority or power to determine
questions affecting the rights of subjects. This power carried with it the duty to act judiciary,
which means, that fairly and justly is in accordance with statutes”.
The straightforward meaning of Lord Denning’s dictum is that, a duty not to act judiciary is
implied in every power or legal authority when determining questions affecting the rights of
subjects.
CIRCUMSTANCES UNDER WHICH CERTIORARI WILL NOT ISSUE:
Certiorari being a prerogative remedy is a discretionary remedy and hence it is not granted as a
matter of right or matter of cause rather its grant is in the discretion of the court. This means that,
after the grounds for the award of certiorari are established, the court can still refuse to grant the
order of certiorari. In practice though when the court refuses certiorari after the ground for its
award have been established, it will give reason for the refusal, hence from the practice, it is
possible to discern certain circumstances in which certiorari is likely to be refused and the first
circumstance questions; availability of an alternative remedy ordinarily, certiorari will be refused
if the alternative remedy available to the applicant have not been pursued to extortion or at all by
the applicant. Thus application for certiorari is likely to be refused where there is right of appeal
against the act sought to be quashed by certiorari.
MORRIS ONYANGO vs. SENIOR INVESTIGATION OFFICER CUSTOM DEPARTMENT

[1980] TLR 150.
AmriJuma and 15 others vs. Tanzania Harbors authorities, HC DSM, miscellaneous civil cause
no 37 1980, in which the applicants had not exhausted their statutory right of further reference to
the minister but the court issued to them the writ of certiorari on the basis that, the decision of the
respondent was a nullity and void at law and thus there was no the decision at all to take
minister.
The second incident is where the applicant is somehow to blame, an application for certiorari
may be refused even if there is no alternative remedy and grounds for its award has been
sufficiently established where somehow the applicant is him/herself to blame for the predicament
his/her application. The most common blame common blame against the applicant is delayed in
making the application
According to Crown Office Rules of 1906, an application for certiorari will not be entertained by
the court if it is brought after a period of 6 months following the act complained of.Similarlywas
the applicant delays until s/he becomes time barred under the proceeding for the alternative
remedy and s/he come for certiorari. Certiorari will not be issued since they are not a matter of
choice if the time lapses it is over.
Another instance where the conduct of the applicant is unreasonable a part from delay, certiorari
can be refused. In the case of, Re Exparte Fry (1954) 1 WLR 730. A fireman refuse to clean his
superior’s uniform as ordered, claiming that the order was unlawful. He was punished by caution
and sought certiorari to quash decision to caution him. Certiorari refused: the court observed that
, the applicant’s disobedience was un extraordinary foolish conduct as he could have simply
obey it and then complain through the existing laid down procedures.
Certiorari will not be issued were the practical effect of the order is undesirable or otherwise
disastrous. In the case of Conrad Berege vs. Registrar of Cooperatives and AG, HC, DSM,
Miscellaneous civil case no 35 of 1990- unreported. The applicant in this case established
that,the removal of the managing committee of morogoro region cooperative union (1984) Ltd
of which he was a chairman and its replacement by a care taker committee was done ultra vires
in breach of the principles of natural justice. The court refused to grant certiorari. As it grant
would have the effect of reinstating the applicant in office but already while the case was
pending. He had lost the necessary qualifications for holding that the office and considerable
hostility was persisting against him and his committee
Certiorari will not be issued were the effect will be to protect a privilege and not a right.
Certiorari is normally issued to protect a right and not a privilege. In the case of R vs. Gaming
Board For Great Britain ExparteBenaim and Khaida 1970 2 All ER 588. The applicant sought a
gaming license in respect of Crockfords along time established gaming club. The Gaming Board
decided not to give them the license and they sought certiorari to quash the decision of the court.
Lord Denning held that; as gaming was a privilege and not a right, certiorari will not be issued.
Lastly is where the applicant has no the locus standi, the applicant has to establish the locus
standi i.e. that s/he has sufficient interest in the matter complained of.
LujunaShubiBalonzi vs. CCM case.
PROHIBITION:
While the effect of certiorari is to quash the decision or order which is made without jurisdiction
or contrary to law, prohibition operates as a stop order. It restrains/ prevent a public body or
administrative body from continuing to act without jurisdiction. Prohibition therefore is an order
sought and granted in order to prevent a public body or authority from carrying out a decision or
order which is ultra vires or otherwise contrary to law. Grounds for the award of prohibition are
the same as those of certiorari.
Prohibition may issue against an act or order which is ultra vires, Erroneous in law or which is in
breach of the principles of Natural Justice. In the case of R vs. Kent Police Authority Exparte
Godden (1971) 2 QB 662. The applicant Mr Godden was certified to be suffering from mental
disorder by the Chief medical officer. For that reason, the respondent authority wanted to restore
him compulsorily; the law required them to refer Godden’s condition to a doctor before retiring
him as they wanted. The doctor they refer Godden was the same chief medical officer who had
earlier certified that Godden was suffering from mental disorder. Thus would have been to the
principles of natural justice against bias, because the doctor has already formed his view of
Godden’s condition. Prohibition was issued for preventing the doctor from acting on the
reference.
Like certiorari prohibition is discretionary and will not issue where there is an alternative remedy
which is convenient, beneficial and effectual.
Nota Bene: prohibition will not be issued by the court where it is sought after the act complained
of has already been carried out, because it is meaningless to prohibit the doing of an act which
has already been done. However prohibition may be issued to stop an act which has been stated
and is continuing. There is no law stipulating for limitation period for applying for prohibition.
The logic for this is that prohibition can be sought and granted before and not after the act
complained of is executed.
Prohibition is also available to protect a right and not a privilege. The question of locus standi is
as important in an application for prohibition as it is important for an order of certiorari.
MANDAMUS:
Is a public law remedy issued as a command requiring the performance of a public duty. A duty
which the person or body is so commanded is under a legal duty or obligation to perform. The
duty in question must be a public one. Mandamus will never issue to compel the performance of
a private duty for instance a duty arising out of a contract.
1. LEGAL DUTY OR OBLIGATION:
A duty enforceable by mandamus is one which may have been imposed by statute or under
common law. In FestoBalegele’s case, after prohibiting the respondent council from continuing
to dump refuse at KunduchiMtongani because it was undesirable for that purpose, the court
issued an order of mandamus to command the council to collect and establish a suitable site for
solid waste disposal.
The issuance of the order of mandamus was possible because under the Local Government
(Urban Authority) Act no 8, of 1982, the council is under an obligation to provide for collection
and disposal of the refuse granted in the city, the obligation includes the duty to establish and
maintain appropriate location for refuse disposal.
John MwombekiByomalirwa vs. Regional Commissioner and another [1986] TLR 73.
2. THE DUTY MUST BE IMPERATIVE:
Mandamus is available to compel the performance of the duty. It is not available to compel the
exercise of a discretionary power. If its within the power of a body to perform a certain function
but there is no imperative obligation to perform it mandamus will not issue
If the law says, “the city council shall establish and maintain facilities for refuse disposal”, then
the city council may be compelled by mandamus to establish and maintain them. But mandamus
shall not issue if the law merely says that, “the city council may establish those facilities”.
In the case of Re Fletcher’s Application (1970) 2 All ER, 527: the applicant was refused leave to
apply for mandamus to compel the parliamentary commissioner to investigate his complaints.
The refusal was on the ground that, the law provided that; “the commissioner may investigate
that complaint”, as such law merely gave the discretion to investigate the complaint. It didn’t
impose an imperative duty or obligation to investigate.
NB: in some cases the law may be couched in a permissive terms i.e. with the use of the word
may but still mandamus will issue particularly is cases regarding granting of licenses, as it is said
that the intention is not to give absolute discretion on public authority. While a mandamus cannot
be issued to enforce a contractual duty generally, sometimes it can be available to enforce a
contact which is meant specifically for the purpose of carrying out a public duty for
e.g.firefighting sewage waste& disposal.
EXERCISE OF DISCRETION MUST BE LAWFUL:
Although mandamus will not issue to compel a exercise of a discretion, once the body vested
with discretion set out to exercise that discretion, it must exercise it in accordance with correct
legal principles. Hence, every discretionary power carries with it a duty. An imperative duty to
exercise that power lawfully and it is this duty which can be compelled by mandamus goes
together i.e. certiorari to quash the decision complained of and mandamus to compel those
bodies to reconsider the questions and make fresh decisions replacing the quashed.
INJUCTIONAND DECLARATION:
There are private law remedies which are also relevant to public law. An injunction is an order of
the court by which a person against whom it is made is required to refrain from doing an act/stop
order. By contrast the prohibition, injunction orders seek to restrain wrongful acts which are
purely private and not public in nature. A declaration on the other hand is an order of the court
which merely declares what the rights of the contesting parties are. It merely declaresdeclares
what the rights and stop there. It does not empower or require any one to do anything; if the
applicant is successful they lead to what are commonly referred to as declaratory orders or
judgment. The relevancy and importance of these remedies to private law is that, they can be
invariably used against public authorities in match the same way as against private individual
(declaratory judgment /orders).
EXCLUSIONARY CLAUSES:
Sometimes referred to as ouster clauses or finality clauses are statutory provisions excluding
application for judicial review in courts of law. Acts of parliament frequently contains provisions
aimed at restricting and sometime eliminating judicial review. The common phrases are inserted
in such statutes are such words as; “final and conclusive or shall not be questioned in ant court of
law or where the minister is satisfied…” and such similar words. The normal effect of such
clauses is to prevent an appeal as there can be no appeal unless it is given by the statute, the
effect of exclusionary clauses if uncontrollable powers to administrative authorities and
tribunals. They are an indication of distrust of the judiciary by the executives.
ATTITUDE OF THE COURT ON EXCLUSIONARY CLAUSE:
There is a firm/ strong judicial policy against allowing the rule of law to be undermined by
weakening powers of the court. Statutory restrictions on judicial remedies are given the
narrowest possible construction sometime even against the plain meaning of the word. If a
statute says that some decision or order shall be final and conclusive, this is held to mean that
there is no appeal but judicial control of illegality/illegality is unimpaired. In the case of R vs.
Medical Appeal Tribunal Exparte Gilmore [1957] 1 QB 574/ 583. Lord Denning observed ; “ I
find it well settled, the remedy of certiorari is never to be taken away by any statute except by the
most clear and explicit word”.
Anisnminic case- must read.
In the case of Council of Civil Service Unions and others vs. Minister for Civil Service [1984] 2
All ER 935. Lord Diplock classified three grounds upon which administrative action is subject to
control by judicial review, ouster clauses or no ouster clauses: the grounds are as follows:
i. Where there is illegality

ii. Where there is irrationality/illogical judgment.
iii. Where there is procedural impropriety.
THE POSITION IN TANZANIA ON EXCLUSIONARY CLAUSE:-
There are a number of authorities in Tanzania evidencing that, the court puts a strict construction
to exclusionary clauses. In the case of Mtenga vs. UDSM [1971] HD 247. The late Biron J was
confronted with s. 27 (1) of the Permanent Labor Tribunal Act of 1967 which read: “every award
and decision of the tribunal shall not be liable to be challenged, reviewed, questioned or called in
question in any court serve on ground of lack of jurisdiction”. His Lordship held that; the
jurisdiction of the court was not ouster as the permanent labor tribunal had just given an advise
under s. 10 of the Act but did not give any award or decision in accordance with the statute. His
Lordship had further this to say on ouster clauses: “the legislator may, and often does, I am
afraid far too often, oust the jurisdiction of the courts in certain matters. But for the court to find
that the legislature has ousted his jurisdiction the legislature must so state in no uncertain and in
the most unequivocal terms”.
In another case Mwanza Restaurant and Catering Association vs. Mwanza Municipal Director
HC, Mwanza, Miscellaneous civil cause no 3 of 1987(unreported). The court dealt with the issue
of refusal by the price commissioner to review prices relying on s. 15 of the Regulations of
Prices Act, of 1973 which provided that; “no decision of the price commissioner, the price
commissioner or assistant commissioner made or purporting to have been made pursuant to any
provision of this part shall be subject to review by any court on any ground whatsoever”.
Mwalusanya J, as he then was, held that, the decision under the Act envisages a judgment in one
way or the other about prices. He went on to observe; “however, even if we take the conduct of
the respondent refusing to review the prices to be a decision, still I will held that, the jurisdiction
of this court has not been ousted”.
Similarly in the case of Tanzania Air service Ltd vs. Minister for labour and others [1996] TLR
217.Samatta J.K( as he then was) held that: although s.27(1) of the security of employment act,
1964 provided that ; “ the decision of the minister on a reference made from labor conciliatory
board was final and conclusive”. Mandamus could issue to compel a minister to give reasons for
his decision which was made without assigning any reason at all.
Therefore there is no remarkable difference between the position obtained in England and the
one in Tanzania on the attitude of the courts towards ouster clauses.
SUITS AGAIST THE GOVERNMENT:
Private law remedies are obtained from courts by way of ordinary civil suits, not by way of
judicial review proceedings as is the case which prerogative orders or remedies.
Hence , the position of the Government in relation to civil suits need to be considered separately
because suits against the government as a defendant are subject to certain conditions which do
not apply to suits against other ordinary defendant.
Suits against the government are governed by the Government Proceedings act, 1967 as
amended. the act is molded along the English Crown’s Proceedings act, 1967, under which the
right to issue sue the crown was firstly introduced in England. Before the coming of the Act, the
crown could not be sued {i.e. the King / Queen is always right). The immunity of the crown was
based on some feudal believes that ‘the King could not do any wrong. Hence the intention of the
Act was to get rid of the immunity of the government in civil cases and to enable it to be sued
like any private individual though with some privileges accorded to it/ the government.
The intention however was not realized immediately after the law was enacted as it is effective
date was delayed until 1974 after amending s.6 thereof which required the consent of the
minister before proceeding with any suit against the government.
This was seen in the case of PatrickMatiku vs. Sebabile& Others HC TBR REGISTRY CIVIL
CAUSE NO 03 1982. In order to avoid the consent requirement, the plaintiff instituted the case
without joining the government as a co-defendant, the government asked to be joined as a co
defendant and after being joined the government successful prevented the case from proceeding
by pleading ‘ lack of the Minister consent to sue the government”.
Read. The case lead to amendment of s.6
SOME PRIVILEGES OF THE GOVERNMENT AS A DEFENDANT;
The consent requirement has been replaced with a 90 days’ notice which must be served to the
government before suing it.
OBJECTIVES OF THE NOTICE;-
The object of the notice is: to enable the government to consider and settle claims against it
whenever it is appropriate outside the courts and serve the government from unnecessary
embarrassment and damaging its reputation before international community.
i. The notice is served to the particular department against which the suit is to be
instituted and a copy to the notice has to be served to the AG.
ii. Suits against the government can only be instituted in the HC.
iii. The Government enjoys some protections with regard to limitation of time. In that no
suit can be instituted against the government on a cause of action which is more than
three years old. Unless could apply for extension of time to a specified minister).
However the government on this part is not bound by that limitation rule, instead it is governed
by the less provisions of, The Laws of Limitation Act, 1971. Apart from that there are some
remedies or reliefs which cannot be obtained against the government. According to s. 11(1) (a)
of the GPA 1967: “The court shall not grant an injunction or make an order for specific
performance against the government for the recovery of land or the delivery of any property”.
In all cases in which such orders would be awarded, if the proceedings were against a private
person, the court may only make orders of declaration in lieu thereof. i.e. The court may only
make orders declaring the rights of the party or in case of land or property declaring that, the
plaintiff is entitled to the land or property or to the possession thereof as against the government.
This means that, in the case of a breach of contract by the Government which would justify an
order of a specific performance the claimant cannot order the specific performance against the
government.
NB: the logic of the privileges and protection in favor of the government is simply that, unlike a
private individual, the government has the responsibility of looking after and taking care of the
wider interest of the society @ large.
Usually, it wills in the furtherance of those wider interests that, the government will have
conducted itself in a way that gives rise to the cause of action against it.
In other note it should be born in mind however that the exclusions made the Government
proceedings Act, 1967. Do not affect powers of the HC to issue interim or interlocutory
injunctions pending determinations of the main proceedings in the application for the prerogative
orders of certiorari and prohibition.
It should only be noted that: the GPA, 1967 applies only to the proceedings against the
government i.e. the central government and all its departments.
Local Government Authorities and all other public authorities are not covered by the
Government Proceedings Act, 1967.

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ADMINISTRATIVE LAW:

THE RATIONALE BEHIND POWER OF ALL PUBLIC AUTHORITIES ARE

All such subordinated powers have two inherent characteristics.

THE PURPOSE OF ADMINISTRATIVE LAW:

Chapter 1 Wade: Administrative Law.

NATURE AND FUNCTION OF ADMINISTRATIVE LAW:

According to Fredrick Engels: a state is a product of society at a certain stage of human

A state has enormous power- power corruption- absolute power.

Express restriction- Principle legislation

THE HISTORICAL BACKGROUND OF ADMINISTRATIVE LAW:-

Writ of the court is fundamental in prerogative order/remedies.

BASIC CONSTITUIONAL PRINCIPLES:

SEPARATION OF POWER IN PRACTICE:

Therefore due to the impracticability of the doctrine of separation of power as propounded, a

Separation of power in practice has relaxed the rigid separation of power.

Mtikila vs. Attorney General [1995] TLR. 31

LujunaShubiBalonzi vs. CCM [1996] TLR. 203

The concept of parliamentary supremacy is based on to close linked assumption i.e.

21st NOVEMBER 2012.

EVOLUTION OF THE DOCTRINE OF PARLIAMENTARY SUPREMACY:-

Parliamentary supremacy originates in Europe as part of the bourgeoisie democratic revolution

At page three- Wood Philips

PARLIAMENTARY SUPREMACY AS APPLIED IN TANZANIA;-

Significance enhancement of parliamentary supremacy was effected by the 8th Constitution

However nowhere in the constitution make an express declaration of parliamentary supremacy in

MINISTERIAL RESPONSIBILTY (IES).

Article 53;(Accountability of the executive).

THE RELATIONSHIP BETWEEN RULE OF LAW VS. ADMINISTRATIVE LAW:-

ASPECT OF ADMINISTRATIVE LAW ON HUMAN RIGHTS:-

THE GENESIS OF THE BILL OF RIGHTS:-

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS OF 1948:

HUMAN RIGHTS IN TANZANIA:

THE HISTORICAL BACKGROUND OF THE CONCEPT OF INDEPENDENCE OF

INDEPENDENCE OF JUDICIARY IN TANZANIA.

PERSONAL EMOULMENT AND REMUNERATION:

Judges have blanket protection compared to magistrates.

SEPARATION OF JUDICIAL POWERS AND PERSONNEL FROM OTHER

Art. 117 &118 of the CURT of 1977.

PRACTICAL PROBLEMS:- FOR FULL REALIZATION OF THE CONCEPT OF THE

*function of the registrar –civil procedure code

To conclude the problem is aggravated by the absence of transferwhere by a magistrate of a

RATIONALE FOR SUBSIDIARY LEGISLATION:

Need for flexibility:

DISADVANTAGES OF SUBSIDIARY LEGISLATION:

Secondly: impossibility of knowledge of rules: ignorance of law is no excuse, is the main

Publicity is an important control on delegated legislation. As far as modern legislature procedure

Misuse of power by the Executive:

JUDICIAL CONTROL OF SUBSIDIARY LEGISLATION:

SUBSTANTIVE ULTRA VIRES:

THE RULE OF UNREASONABLENESS:-

THE RULE AGAINST SUB DELEGATION:-

The competence of a maker of sub delegation is a very fundamental one, where an

THE RULE AGAINST INCONSISTENCY.

Principle Legislation is available to regulate certain matter.

Subsidiary Legislation is also available to prohibit certain matter.

THE RULE AGAINST UNCERTAINTY:

Must Read- R vs. Mabula [1984] TLR 89.

PUBLICITY AND PUBLICATION:-

In the case of Mwangi vs. Republic (1950) 241 KLR pg 72.