MZUMBE UNIVERSITY

FACULTY OF LAW

SUBJECT NAME: ADMINISTRATIVE I

COURSE CODE: LAW 226

GROUP NO: 3 STREAM C

LECTURER NAME: MADAM KAYAMBA

DATE: /JANUARY/2022

No NAMES OF MEMBERS REGISTRATION NO.

1. CHARLES A. BUSUMABU 1236126/T.20
2. EVERLINE P. NINDI 1236108/T.20
3. ROSE R. LUKIKO 1236135/T.20
4. CASSIAN CASSIAN 1236112/T.20
5. FARID A. OMARI 1236111/T.20
6. LUPUSO N. LITANDA 1236109/T.20

QUESTION THREE
The doctrine of Rule of Law is not a product of single factor. It is a combination of multiple
factors when dealt together they clearly distinguish authoritarian government from democratic
government. Critically Discuss.
WORKOUTLINE
 SCOPE OF THE QUESTION
This group assignment aims to critically discuss the doctrine of rule of law as not a product
of single factor but a combination of multiple factors when dealt together they clearly
distinguish authoritarian government from democratic government. To critically discuss the
above assertion in totality, this paper has brushed through the basics: beginning by an
introduction which shall encompass, conceptual clarification of various terms, the concept of
rule of law, rule of law as basis of administrative law and the foundation of the doctrine of rule
of law. After which a progression has been made to formulation of the doctrine of rule of law
by combination of multiple factors when dealt together they clearly distinguish authoritarian
government from democratic government, and the application of the doctrine in Tanzania.
Thereafter, a conclusion and reference will be provided.

1.0. INTRODUCTION
Private law is not an unfamiliar notion. It refers to branches of law such as torts and contract.
The focus of private law is mainly on individuals, principally concerned with their duties and
obligations that they owe to one another. 1 However, such a relationship can also be established
between the government and its administrative bodies with the same class of private
individuals. Government has certain powers and functions, for which a separate body of law to
regulate such an exercise is required; this brings into the picture administrative law.2
The central purpose of administrative law is to promote good governance that includes:
efficient and honest action to be taken by administrative bodies for public good 3, to consider
the opinions of the individuals likely to be affected by their decisions, taking their view into
account, to operate in fair, transparent and unbiased fashion, to always seek to serve the public
interest, to respect the rights of the individuals.
The above formulation, however, restricts itself to the scope of administrative law as commonly
accepted in common law countries. Administrative law specialists in Tanzania mainly focus
their attention on various aspects of judicial control of administrative decisions and actions.
Hence, to delve deeper, a better understanding of “The Rule of Law” as a concept is a
necessity.4

1
Jain, M. P. & Jain, S. N. (2011) “Principles of Administrative Law”. (Set of 2 volume’s) (7 thEdn) Lenix Nexis.
Butterworth. Pg260.
2
Ibidem.
3
Administrative body includes corporations, commissions, corporations, boards, departments or divisions; The
Free Dictionary Farlex.
4
Rogers, C. “Collection of Constitutional Law Lecture notes”. Mzumbe University at Mbeya Campus. 2014. Pg.
410. Available at http//:www.Google.com. (Accessed on Sunday/ 9th/Jan/ 2022 at 08:45am).
1.1. CONCEPTUAL CLAFICATION
The above question is the combination of phraseology which embeds three (3) concepts which
needs analysis and comprehension.

1.1.1. CONCEPT OF AUTHORITARIAN GOVERNMENT

It is a form of government where the power is concentrated between the leader, or leaders of
the country. In other words, an authoritarian government has one person or a group to control
politics. Further, there are no limits on the power and accountability. Usually, the leaders are
self-appointed in an authoritarian rule. These type of governments tend to not have a
constitution. Therefore, there is no scope for people’s opinion as there are no elections
conducted.5
The political concept behind this type of government is that the citizen should be totally
subjected to the state authority. It strongly indicates intolerance by the authority to allow one
to question the authority. It is simply the lack of concern for the wishes and opinions of the
public. This type of ruling is often characterized by the unregulated and unaccountable use of
power. The government maintains the authority over all aspects of private and public life is the
most extreme form of authoritarianism often referred to as ‘Totalitarianism.’ 6
One of the examples for a country with the authoritarian rule is China. In China, only the
members of the Communist party are allowed to be a part of the government. In the present
world of democracy and individual freedom, China still has to grow in terms of ruling its own
country.7

1.1.2. CONCEPT OF DEMOCRATIC GOVERNMENT

It is a form of government which is subject to popular sovereignty of the fundamental freedoms
that the citizens enjoy. Under this system, the will of the majority of the governed becomes the
law. It's where the people are the supreme power, the only lobby that matters to every legislator.
Thus, this kind of government gives equal chance to all the citizens to participate and play a
significant role in the political process, ensures and guarantees certain rights and freedoms to
the people constituting the policy.8

5
https://www.sociologygroup.com/authoritarianism-meaning/. Available at http//:www.Google.com. (Accessed
on Sunday/ 9th/Jan/ 2021 at 08:30am).
6
https://www.britannica.com/topic/authoritarianism. Available at http//:www.Google.com. (Accessed on
Sunday/ 9th/Jan/ 2021 at 08:30am).
7
Ibidem.
8
Shukrani K. M. (Institute of Development Studies –IDS, University of Dar es Salaam). Available at:
http//www.academiaedu.com. (Accessed on Sunday 9 January 2022, at 10:12pm).
1.1.3. THE CONCEPT OF THE DOCTRINE OF RULE OF LAW
As a concept rule of law is anchored in the word “LAW” which implies that citizens should be
ruled or governed not by the rule of man or by the rule of might but rather by the rule of law. 9
In this sense, it stands in contrary to an autocracy, collective leadership, dictatorship, or
oligarchy where the rulers are held above the law. Different countries have different views of
the requirements, contents and context of the rule of law. In some countries what obtains is rule
by law rather than rule of law.10
According to the Oxford Advance Learner’s Dictionary, rule of law can be described as the
“condition of which all member of the society including its rulers, accept the authority of the
law.11 While, in Black’s Law Dictionary defines rule of law as a “legal principle of general
application, sanctioned by the recognition of authorities, and usually expressed in the form of
a maxim or logical proposition.12”
Traditionally, rule of law, as propounded by Dicey.13 Means Supremacy of the law and equality
before the law. However, Constitutional scholars raised many criticisms that if rule of law is to
mean supremacy of the law there is a big possibility for tyrannical leaders to put in place
tyrannical laws so that they enforce them tyrannically. Good examples that are given to criticize
the formulation by Dicey are the Apartheid regime in South Africa and the rule by Idd Amin in
Uganda.14
However, the concept was developed by the international commission of jurists, known as
Delhi Declarations, in 1959, which was later on confirmed at Logos in 1967. According to
this formulation, the rule of law implies that the functions of government in a free society
should be exercised so as to create conditions in which the dignity of man, as an individual, is
upheld.15 Basing on that take Professor Shivji writes rule of law means that the exercise of
political power is in accordance with rules and laws and power is to be exercised within these
rules and laws and not according to personal whims or desires of the ruler. Every individual or
Institution which exercises authority or public power has to justify it by reference to law. 16

9
Sabine. G.H, and Thorson. T.L. (1973). “History of political theory”. (4th Edn). The Dryden Press, p.241.
10
Ibidem.
11
Hornby, A. (2000). Oxford Advanced Learner’s Dictionary Ed. Sally Wehmeier, Oxford University Press.
p.103.
12
Joseph R.N., Connolly M.J. (1990). Black’s Law Dictionary, 6th Edition, St. Paul Minn West Publishing Co.
p.1332.
13
Rogers, C. (Op Cit at Pg.423).
14
Ibidem.
15
Nagendranath Ghose. (1919). “Comparative Administrative Law”. Calcutta: Butterworths & Co Ltd. Pg.12.
16
Shivji I.G & I.H. Majamba (et al) (2004), Constitutional and Legal System of Tanzania, at 27-28.
1.2. FOUNDATION OF THE DOCTRINE OF RULE OF LAW
The term ‘The Rule of Law’ is of old origin. The term is derived from the Latin phrase “la
legalite,” which refers to a government based on principles of law and not of men. In this sense,
the concept of ‘la legalite’ was opposed to arbitrary power.17 In jurisprudence, Romans called
it “Jus naturale”, Mediaevalists called it the “Law of God”, Hobbes, Locke and Rousseau
called it “social contract” or “natural law.18”
It is popularly or generally accepted that the doctrine of rule of law believed to be firstly
propounded by Greek philosophers including Aristotle, Plato Cicero.19 For instance Plato in
his book known as “Complete Works of Plato” is found to have written the following words:
“…Where the law is subjective to other authority and has none of its own, the collapse of the
state, in my view, is not far off, but if law is the master of the government and the government
is its slave and many enjoy all the blessings that God shower on the state…”20
Aristotle on the other hand writes the following: “…Law should be govern, and those in power
should be servants of the laws. It is more proper that law should governor than any one of the
citizens, upon the same principle, it is advantageous to press the supreme power in some
particular persons, they should be appointed to be only guardians, and the servants of the
laws…”21
In modern times, however, Edward Coke is considered the originator of this concept when he
said that King must be under God and Law and thus vindicated the supremacy of law over the
pretensions of executives.22 Professor A.V Dicey later developed on this concept in the course
of his lectures at Oxford University. Dicey wrote the concept of the Rule of Law at the end of
the golden Victorian era of laissez faire in England.23 That was the reason why Dicey’s concept
of the Rule of Law contemplated the absence of wide powers in the hands of the government
officials because, according to him, whenever there is discretion there is room for
arbitrariness.24

17
Takwani CK. (2010). “Lectures on Administrative Law”. (4th Edn). Eastern Book Company, Luck now. pg 27.
18
See, Salmond on Jurisprudence, 12th edition Universal Law Publishing, at chapter 3.
19
Karl Llewellyn, “A Realistic Jurisprudence – The Next Step”, in Essays on Jurisprudence from Columbia Law
Review (1963), Columbia University Press, London and New York, p.149.
20
Freeman. M. D. A., (2001), “Lloyd’s Introduction to Jurisprudence”, (7th edn), Sweet & Maxwell, London,
p.39.
21
See, Salmond on Jurisprudence (Op Cit at chapter 3).
22
Being one of the basic constitutional principles, Rule of law was introduced by Sir Edward Coke as a concept
when he was a chief justice during King James I was on the throne. This was against the king, he maintained
successfully that the king should be under God and the law, and he established the supremacy of the law against
the executive.
23
Dicey A.V. (1959). “Introduction to the study of law of the constitution”. (10th Edition). Macmillan Education
Ltd. p.202.
24
Ibidem.
There after Dicey developed this theory, and according to Dicey Rule of law is one of the
fundamental principle of English legal system, where the doctrine comprises of three elements,
that is:25
Supremacy of the law- The First meaning of the Rule of Law is that ‘no man is punishable or
can lawfully 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’. It implies that a man may
be punished for a breach of law and cannot be punished for anything else. An alleged offence
is required to be proved before the ordinary courts in accordance with the ordinary procedure. 26
Article 107B27, calls for independence of judiciary in exercising the powers of dispensing
justice that, all courts shall have freedom and shall be required only to observe the provisions
of the Constitution and those of the laws of the land.
Equality before the law- The Second meaning of the Rule of Law is that no man is above law.
Every man whatever is his rank or condition is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals.28 Article 13 calls for Equality before
the law that all persons are equal before the law and are entitled, without any discrimination,
to protection and equality before the law.29
Predominance of legal spirit- The Third meaning of the rule of law is that the general
principles of the constitution are the result of juridical decisions determining rights of private
persons in particular cases brought before the Court. 30 Article 107A provides for Authority of
dispensing justice that: (1) The Judiciary shall be the authority with final decision in
dispensation of justice in the United Republic of Tanzania. (2) In delivering decisions in
matters of civil and criminal matters in accordance with the laws, the court shall observe the
following principles, that is to say (a) impartiality to all without due regard to one’s social or
economic status; (b) not to delay dispensation of justice without reasonable ground; (c)to award
reasonable compensation to victims of wrong doings committed by other persons, and in
accordance with the relevant law enacted by the Parliament; (d) to promote and enhance
dispute resolution among persons involved in the disputes. (e) To dispense justice without
being tied up with technicalities provisions which may obstruct dispensation of justice. 31

25
Dicey A.V. (1959). “Introduction to the study of law of the constitution”. (10th Edition). Macmillan Education
Ltd. p.202.
26
Ibidem.
27
The constitution of the United Republic of Tanzania of 1977, as amended time to time.
28
Dicey A.V. (Op Cit at Pg202).
29
The constitution of the United Republic of Tanzania of 1977, as amended time to time.
30
Dicey A.V. (Op Cit at Pg202).
31
The constitution of the United Republic of Tanzania of 1977, as amended time to time.
1.3. RULE OF LAW AS A BASIS OF ADMINISTRATIVE LAW
Tanzanian constitution is founded on the rule of law and administrative law is the area where
principles of rule of law are to be seen in operating. The expression Rule of law therefore, plays
an important role in administrative law. It provides protection to the people against the arbitrary
action of the administrative authorities. 32 The expression rule of law has been derived from the
French phrase “la principle de legalite”, meaning a government based on the principles of
law.33 In simple words, the term rule of law, indicates the state of affairs in a country where, in
main, the law rules. Law may be taken to mean mainly a rule or principle which governs the
external actions of human beings, and which is recognized and applied by the state in the
administration of justice.

2.0. THE DOCTRINE OF RULE OF LAW AS A COMBINATION OF MULTIPLE

FACTORS THAT DISTINGUISH AUTHORITARIAN GOVERNMENT FROM
DEMOCRATIC GOVERNMENT.
International Conference of Jurists held in New Delhi in 1959 pronounced that34, for the
existence of rule of law there must be existence of some important Government operating
principles (factors) which are; Separation of powers, Independence of Judiciary and
Ministerial responsibility35. These doctrines altogether form a bond in which a democratic
government shall conduct its activities in accordance with the principle of rule of law. 36
The experience since 1959 shows that for a country to be a rule of law State one among the
things that need to feature in that particular country is the Judiciary that is Independent.37
Separation of Powers plays an important part in the doctrine of rule of law. In any, State rule
of law is not complete if the Powers of the State are not separated from one another. There
must be three State Organs. The Officials in these Organs are to be different performing
different functions.38

32
See, Dr. Mushi. E. G. (2014) “Administrative Law of Tanzania”. Morogoro: Mzumbe University at Pg.38.
33
See, Salmond on Jurisprudence, 12th edition Universal Law Publishing, at chapter 3.
34
Nagendranath Ghose. (Op Cit at Pg12).
35
Nyerere. In his book titled “Freedom and Socialism” published in 1969, late Mwalimu Nyerere is quoted to
have said the following in his speech while addressing the parliament as follows; “…Most important of all
members of the parliament must not under any circumstance attack any member of a civil service in this house. If
they believe a civil servant is acting wrongly and that injustice is in consequences being done, it is the minister
whom members must call to account. Then it is his task to investigate and if necessary invoke the disciplinary
proceedings against the government servant…”
36
Ibidem.
37
See, Art 107B of the Constitution of the United Republic of Tanzania of 1977, as amended time to time. And
also declared by the late, Mwalimu Julius K. Nyerere that: “Our judicial at every level must be independent of
the executive arm of the state. Real freedom requires that any citizen feels confident that his case will be
impartially judged, even if it is a case against the prime minister himself.”
38
Refer to, Art 4 of the Constitution of the United Republic of Tanzania of 1977, as amended time to time.
Democracy is an essential element in rule of law. Through democracy, people are made part of
the government. The people are participated fully in the decision making. Democracy allows
people to elect their representatives in the government.39
In a rule of law State, people enjoy the freedom of speech and expression, which is part and
parcel of democracy. In practicing democracy through freedom of speech and expression
people can do it either by way of conduct or orally. In a country, where rule of law is
predominant people can freely express what they want their government to do for them, and
condemn the acts of government that jeopardize the entire practice of rule of law.
Therefore, the new jurisprudence on rule of law incorporates, apart from well-known
traditional definitions, issues of Democracy, respect for basic human rights, Independence of
the judiciary, Representative Parliaments, recognition and respect of peoples' views and
expression in the running of governments. Rule of law in modern times also calls for
Transparency and accountability on the part of the government. 40

2.1. EXTENT OF THE PRINCIPLE OF RULE OF LAW IN TANZANIA AND ITS

ENFORCEMENT IN THE COUNTRY IN ENSURING PROPER ADMINISTRATION.
Since independence, the Tanzania political and legal system has been widely divergence
between what is said in theory by those in power and what happens in practice. From time to
time politicians indicated the belief in rule of law. For example the comments given by the
former President Nyerere on the penalties given to the army mutineers back in 1964, He said
“….There is some considerable criticism of the very lenient sentences passed on the fourteen
soldiers convicted of conspiracy and taking part in the mutiny of the Tanganyika Rifles in
January of this year. The Government wishes to make clear that it shares the feeling that the
penalties imposed by decision of the high Court Judge and two army officers bore no relation
to the seriousness of the offences and the damages, which was done to our country. Despite
this criticism, the Government does not intend to vary the sentences imposed in these cases. To
interfere with the court’s decision would be to do exactly that thing for which the nation
condemns the soldiers it would be to abrogate the rule of law in which is the rule of law is the
basis…”41

39
Takwani CK. (Op Cit at Pg27).
40
Ibidem.
41
Nyerere J.K: Freedom and Unity: A Selection from writings and speeches 1952-1965 Dar es Salaam, Oxford
University Press, 1966; at pp. 298-299; also quoted in Peter, Chriss Maina; Human Rights in Tanzania: Selected
Cases and Materials 1977. Koln: Koppe, Dar es Salaam; at pp.305-306.
In Tanzania the development of the Rule of Law can be grouped in to two major phase, before
1984 and after 1984, whereas before 1984 the Constitution of united republic of Tanzania of
1977 had no Bill of Rights, and for that rule of law during the time was impotent. 42
That before 1984 the bill of rights in Tanzania was found only in the preamble of the
Constitution of Tanzania of 1965 up to 1977 and in a legal sense preamble does not form part
of the constitution and in other 43, preamble is not enforceable and this is shown in the case of
HATIMALI ADAMJI V E.A POSTS AND TELECOMMUNICATIONS LTD44, in this
case a Tanzanian Asian by origin was compulsory retired in order to facilitate Africanization
in government sector. The claimant argued that the policy of Africanization was discriminatory
in on ratio basis hence it was not against the rule of law, basing on that argument the Asian
petitioned on the court of law and the court held that the preamble of the Constitution is not
enforceable and for that the argument failed.
The same position was discussed in the case of ATTORNEY GENERAL V LESINOI
NDEINAI45 as follows; Seven years after the Adamji’s legal battle, Lesinoi Ndeinai tried his
lucky when he filed a case of fundamental rights and relied on preamble as an authority. After
a very big battle in the court.
Justice Kisanga had this to say: “…A preamble is a declaration of our belief in these rights.
The rights themselves do not become enacted thereby such that they could been forced under
the Constitution. Justice Kisanga then concluded: One cannot bring a complaint under the
Constitution in respect of violation of any of these rights…”
After the year 1984, the Bill of Rights which provides for freedom and rights of individuals
was firstly introduced in the constitution of the united republic of Tanzania of 1977, through
the 15th amendments of the constitution of 1984.46
The amendments inter-alia incorporated the Bill of Rights in the Constitution and hence giving
rule of law force of law in the country, although Bill Rights was incorporated in the constitution
of in 1984 it came in to force from march 1988 and ever since march 1988 up to now the rule
of law is part of the basic laws of the land in Tanzania.47

42
Mtaki and Okema: “Constitution Reforms and Democratic Governance in Tanzania”, 1994; article by Wambali
Michael: “The Doctrine of Rule of Law and the Functioning of Government in Tanzania”.
43
Ibidem.
44
(1975) L.R.T 6.
45
[1980] TLR 214.
46
Ibid.
47
Chris Maina Peter. “Human Rights in Tanzania”: Selected Cases and Materials, 1997. Pg. 487.
There is now party 2 of chapter 1 of the constitution of Tanzania of 1977 which provides Bill
of Rights or fundamental rights or individual rights which is rule of law, this part provides for
objectives and the directive objective of state policy, the fundamental right, individual rights,
and Bill of Rights has been enshrined from article 11 to Article 24 of the Constitution of United
Republic of Tanzania.48
In Tanzania the rule of law is enforceable in any case where an individual is curtailed his basic
freedom and rights he may petition to the high court. This is provided for under article 30 (3)
of the constitution. Again there is another statute which set out procedure to enforce basic right
and freedom of individuals this statute is known as the Law Reform Fatal Accidents And
Miscellaneous Provision Act49, using article 30 (3) of the constitution and the Law Reform
Fatal Accident And Miscellaneous Provision Act50 any citizens may enforce his basic rights
and freedom in the high court of Tanzania.
There are several cases which exemplify this; in NHC V TANZANIA SHOE COMPANY51
the case envisages the procedures to enforce the basic fundamental right. According to the case
enforcement of basic fundamental right is by way of petition which is filed in the high court
which is the first court of instance.
Also the question of knowing who has the right to petition when there are infringement of
fundamental basic rights was answered in the case of rev CHRISTOPHERMTIKILA V
A.G52 whereas in the case interalia, the issue was who has the locus standi in matter of
infringement of fundamental basic right the high court answered the question by stating that
any person who has sufficient personal interest over and above the interest of general public
may be a bonafide litigant even where he has no personal interest in the matter.
There are few examples which may be cited to substantiate the notion that in Tanzania the rule
of law plays the great rule in ensuring proper administration, there are some indication in
Tanzania including the followings:-
The first indicator is the potent power of the judiciary to declare any Act of the parliament or
any provision of the act of parliament or any part of customary or whole of customary law
invalid if they are discriminatory or contradict the Constitution is an indicator which evidence
the existence of rule of law in Tanzania1.53

48
Ibidem.
49
CAP 310.
50
Ibidem.
51
(1995) TLR 251.
52
(1995) TLR 31.
53
Chris Maina Peter. “Human Rights in Tanzania”: Selected Cases and Materials, 1997. Pg. 488.
 This can be exemplified in the case of EPHRAIM EBONGO V. HOLARIA PASTOR &
ANOTHER54.
Also, in July 2008 the then minister of United Republic of Tanzania, Hon Maua Daftari was
sued personally in court of law for tort. This indicates that there is equality before the law, that
everybody is subject to the ordinary law of the land in respect of the statute and that all people
are tried in the same tribunal without being specialized to some kind of people. 55
Moreover, The three principles of natural justice has been incorporated as a part and parcel of
legal system in Tanzania and the judiciary recognizes them and they are interpreted
accordingly as imperative legal procedures and requirement in adjudication of various cases in
court. In a great extent this has also take a great part in proper administration system which
adhere to the principle of rule of law.56
In addition to, the wording of Article 30(3) of the Constitution which states that ‘any person
claiming that any provision in this Part of this chapter or in any law concerning his right or
duty owed to him has been, is being or is likely to be violated by any person anywhere in the
United Republic, may institutes proceedings for redress in the high court’’,

3.0. CRITICISMS OF THE DOCTRINE OF RULE OF LAW IN TANZANIA

The rule of law in Tanzania is not standard simply because, despite of the Constitution of the
United Republic of Tanzania of, 1977 to have provisions for rule of law into factual bill of
rights but there are few areas of weaknesses of rule of law in Tanzania as follows;
i. Existence of wide discretionary powers to the executive- Some of the executive have wide
discretionary powers example the president of the United Republic of Tanzania has many
discretionary powers under the Constitution of the United Republic of Tanzania of, 1977
and in other laws. This is proved in the following examples: The president has power to
dissolve the parliament. This has effect when the parliament wants enact laws to enforce
rule of law. The president has prerogative of mercy under which he may pardon for the
criminal who has been imprisoned or sentenced by the judiciary and the power is conferred
under Article 45(1) of the Constitution of the United Republic of Tanzania of, 1977. The
president has immunity against prosecutions in civil and criminal matters as per Article
46(1) and 2 of the Constitution of the United Republic of Tanzania of, 1977.

54
(1990) T.L.R.
55
EDWARD. M. M. “Compiled Notes on Basic Constitutional Principles in Tanzania”. Moshi Co-operative
University-LLB (2016-17). Pg.23. Available at http//:www.academiaedu.com. (Accessed on Sunday/ 6th/ 2021 at
08:30am).
56
See, Article 13 (6) (a) of the Constitution of the united republic of Tanzania of 1977 as amended time to time.
 ii. There are some citizens of Tanzania who may be tried by other organs than the ordinary
court of law. There are special tribunals to try special peoples hence weakness of rule of
law. Example; Members of TPDF have court martial which have jurisdiction to try
members of militia and not tried in ordinary courts of law. This has been provided under
National Defence Act [CAP 192 R.E. 2002].
iii. Abuse of the doctrine of rule of law by some of the executive members. There are some of
the executive members who think that they are not bound to follow principles of rule of
law. This can be seen through the case of, I.G LAZARO V. JOSEPHINE
MUGONERA57, In this case I.G Lazaro was a very senior police officer; he was sued by
Josephine Mugonera, a junior police officer for defamation. The fact showed that one day
while the police were in parade as their daily routine I.G Lazaro uttered defamatory words
to Josephine Mugonera in front of other polices. Josephine Mugonera sued I.G Lazaro for
defamation in the High Court and the High Court found I.G. Lazaro liable and ordered to
pay damage. Now I.G. Lazaro appealed to the Court of Appeal of Tanzania challenging the
decision of the High Court. On appeal the advocate for appellant argued that since the
appellant was a senior police officer he couldn’t be liable for defamation for whatever he
did. However the Court of Appeal rejected such submission and held as follows;
“…Everyone in Tanzania is subjected to ordinary law of the land including those officers
of the police…”
iv. Existence of ouster clause, which limits jurisdiction of the judiciary to inquire into a certain
matter. The bill or act may limit power of the judiciary to inquire into some matter which
the executive doesn’t want the judiciary to exercise power on them. The First example is
section 17(3) of the Commission for Human Rights and Good Governance Act [CAP 391
R.E. 2002]. The section expressly and clearly provides as follows; “…No inquiry,
proceeding or process of the Commission shall be invalid on the grounds only of any error
or irregularity of form and, except on the ground of lack of jurisdiction, no inquiry,
proceeding, process or report of the Commission shall be liable to be challenged, reviewed,
quashed or called in question in any court…” Another example of ouster clause is Article
74(12) of the Constitution of the United Republic of Tanzania of 1977 as amended time to
time, this Article limit the judiciary to inquiry into anything done by the National Electoral
Commission as far as presidential post is concerned.

57
Civil Appeal No. 2 Of 1986, Court Of Appeal Of Tanzania At Dar es Salaam, (Unreported).
CONCLUSSION
Regardless of the majestic premises of the Rule of Law talk, it is said that not everyone remains
beneficiary. Even in societies where there is Rule of Law, there remains scope for grave and
continuing excesses of power. We have daily examples splashed across media, where
celebrities get away from grave charges of culpable homicide, a Chief Minister of the
opposition party is politically targeted and a raid is conducted and vulnerable social groups are
constantly targeted by police officials (extra-judicial killings). In a book called Politics of the
Judiciary, the author Griffith argues that, judges cannot be politically neutral because they are
forced to make political choices that are inevitably affected by the rather narrow social,
educational, and ethnic backgrounds from which the Judiciary is presently drawn. Hence,
judicial review can also be subject to prejudice.
 REFERENCE

LIST OF STATUTES

The Constitution of the United Republic Of Tanzania of 1977, As Amended Time to Time.

National Defence Act [CAP 192 R.E. 2002].

The Commission for Human Rights and Good Governance Act [CAP 391 R.E. 2002].

The Law Reform Fatal Accident And Miscellaneous Provision Act [CAP 310 R.E 2002].

LIST OF CASES

Attorney General V Lesinoi Ndeinai [1980] Tlr 214

Christopher Mtikila V A.G (1995) Tlr 31.

Ephraim Ebongo V. Holaria Pastor & another (1990) T.L.R.

Hatimali Adamji V E.A Posts and Telecommunications Ltd (1975) L.R.T 6

I.G Lazaro V. Josephine Mugonera, Civil Appeal No. 2 Of 1986, Court Of Appeal Of Tanzania

At Dar es Salaam, (Unreported).

Nhc V Tanzania Shoe Company (1995) Tlr 251.

LIST OF BOOKS

Alder, J. (2005) “Constitutional and Administrative Law”. 5th Edition, Palgrave Macmillan

Publishers, New York.

Chipeta B.D, Administrative law in Tanzania, Mkuki Na Nyota Publishers, Dar es Salaam,

2009.

Dicey A.V. (1959). “Introduction to the study of law of the constitution”. (10th Edition).

Macmillan Education Ltd. p.202.

Dr. Mushi. E. G. (2014) “Administrative Law of Tanzania”. Morogoro: Mzumbe University.

Freeman. M. D. A., (2001), “Lloyd’s Introduction to Jurisprudence”, (7th edn), Sweet &

Maxwell, London.
Hornby, A. (2000). Oxford Advanced Learner’s Dictionary Ed. Sally Wehmeier, Oxford

University Press.

Joseph R.N., Connolly M.J. (1990). Black’s Law Dictionary, 6th Edition, St. Paul Minn West

Publishing Co.

Karl Llewellyn, “A Realistic Jurisprudence – The Next Step”, in Essays on Jurisprudence from

Columbia Law Review (1963), Columbia University Press, London and New York.

Mtaki and Okema: “Constitution Reforms and Democratic Governance in Tanzania”, 1994;

article by Wambali Michael: “The Doctrine of Rule of Law and the Functioning of

Government in Tanzania”.

Nagendranath Ghose. (1919). “Comparative Administrative Law”. Calcutta: Butterworths &

Co Ltd.

Nwabueze, Our Match to constitutional Democracy published on Law and Practice (Special

Edition) 1989.

Nyerere J.K: Freedom and Unity: A Selection from writings and speeches 1952-1965 Dar es

Salaam, Oxford University Press, 1966; at pp. 298-299; also quoted in Peter, Chriss

Maina; Human Rights in Tanzania: Selected Cases and Materials 1977. Koln: Koppe,

Dar es Salaam; at pp.305-306.

Sabine. G.H, and Thorson. T.L. (1973). “History of political theory”. (4th Edn). The Dryden

Press, p.241.

Salmond on Jurisprudence, 12th edition Universal Law Publishing.

Shivji I.G & I.H. Majamba (et al) (2004), Constitutional and Legal System of Tanzania.

Takwani CK. (2010). “Lectures on Administrative Law”. (4th Edn). Eastern Book Company,

Luck now.

Yusuf Lawi Q, Manual on Justice Administration outside the Ordinary Courts of Law in

Mainland Tanzania, Published in Boston University.

MANUALS & OTHER MATERIAL

EDWARD. M. M. “Compiled Notes on Basic Constitutional Principles in Tanzania”. Moshi

Co-operative University-LLB (2016-17). Available at http//:www.Google.com.

(Accessed on Sunday/ 9th/Jan/ 2022 at 08:40am).

https://www.britannica.com/topic/authoritarianism. Available at http//:www.Google.com.

(Accessed on Sunday/ 9th/Jan/ 2021 at 08:30am).

https://www.sociologygroup.com/authoritarianism-meaning/. Available at

http//:www.Google.com. (Accessed on Sunday/ 9th/Jan/ 2021 at 08:30am).

Rogers, C. “Collection of Constitutional Law Lecture notes”. Mzumbe University at Mbeya

Campus. 2014. Available at http//:www.Google.com. (Accessed on Sunday/ 9 th/Jan/

2022 at 08:45am).