An Examination of the Boundaries of, and the Theoretical Justification for Judicial Review in Tanzania

Administration[1] is the management or performance of the executive duties of a government, institution or business. In a technical term[2], it refers to the sum total of acts, which effectuates the will of the state. Administrative act is primarily the act of administrative authority.

These administrative authorities include: governmental departments, public officials, statutory bodies, public corporations, administrative tribunals and local authorities. The function of executive power, as defined in the case of Ram Jawaya v State of Punjab[3], was to execute the law, but now the executive has to initiate policy and it is open to them to undertake measures in various spheres either without legislation or in advance of legislative sanctions.

Thus on that case the court points out that, the executive powers connotes the residue of governmental functions that remains after legislative and judicial functions are taken away subject, of course, to the provisions of the constitution or of any law. Therefore, administrative act may, accordingly, be statutory as well as non-statutory. 2. Types of Administrative Authorities

The administrative authorities may be divided into three broad categories:[4] One, purely administrative, this is the administrative act or order which supply disposes of a particular case or merely enunciates the policy to be pursued by the administrative authority or the government without immediately affecting the rights of any individual.

Two, quasi legislative, this is the function of subordinate legislation or that of making rules, regulations and other statutory instruments to fill in the details of legislative enactments in order to make the execution of the law possible. Three, quasi judicial, this is when an administrative acts immediately affects an individual legal right or the law requires that in coming to its decision in the matter the administrative authority must follow procedures simulating the judicial processes.

This shows us that, the administrative authorities practice or perform functions of legislature and judiciary: this is so because of the impossibility in having rigid form of separation of powers due to complexity of modern conditions. Generally, for administrative authority or executive to function well, it needs legislative powers in order to make rules on how to enforce law and also judicial powers to decide on their own merits.

That is why the delegation of quasi-legislative and quasi-judicial functions to a number of administrative authorities and tribunals has become unavoidable. 1. Useful of the Study

Tanzania is a democratic and socialist state which adheres to multi-party democracy[5], governed with democratic government based on the basic constitutional principles[6], therefore, this study will be useful in examining the boundaries of judicial review and indicate clear whether the government of the United Republic of Tanzania, by allowing the judicial control over administrative actions, generally adhere to the basic constitutional principles.

Background to the Problem

1. Judicial review, defined Judicial review[7] is the court’s power to review the actions of other branches or levels of government especially the court power to invalidate legislative and executive actions as being unconstitutional. This is the inherent power or jurisdiction of the court; this means there are no statutory provisions to this power or jurisdiction in many countries including Tanzania but there are some countries that have, for example India Constitution and other European countries. 2. Historical Background of Judicial Review

This power historically[8] originated from America in the year 1803, this initiated by the ruling of Supreme Court of the United States in Marbury v. Madison case in (1803) under John Marshall. According to Marshall, a provision of the Judiciary Act of 1789 improperly extended the jurisdiction of the U.S. Supreme Court, and was therefore unconstitutional.

This was the first opinion in which the Court exercised judicial review with full judicial authority. This was not the first incident of declaring[9], there were also some early state and federal decisions suggesting that even where the state or federal constitutions were silent, certain basic principles of “republican governments” could not be disregarded by legislators, principles that would be grounds for striking down statutes.

In Calder v. Bull (1798), Supreme Court Justice Samuel Chase gave examples of the violation of these principles, such as taking one person’s property to give to another, deeming an action criminal that was not illegal when committed, and making persons judge and party in their own cases. After the Second World War several constitutions of Europe and Asia incorporated judicial review.

Before this incorporation in England[10] from the 12th century the crown exercised inherent supervisionary power to control inferior bodies and court. This legal power was initially exercised in King’s Council, Curia Regis. The King’s Division of the High Court acquired the power when the common law court broke away from the King’s Council.

Supervision was effected by the use of prerogative writs (now order)[11] prohibition, mandamus and certiorari. This supervision later changed to Administrative Court established as part of the Queen’s Bench of the High Court after incorporation of judicial review and the supervisory jurisdiction and procedures for invoking it now are known as judicial review. 3. Introduction of Judicial Review in Tanzania

In Tanzania judicial review is the inherent power of the High Court of Tanzania. The High Court of Tanzania is established by the Constitution of the United Republic of Tanzania under Article 108(1).

The High Court inherits this power from British, who colonised the country[12], under the virtual of section 2(3)[13] of the Judicature and Application of Laws Act[14] and also under the authority of Article 108 (2) of the Constitution of the United Republic of Tanzania[15]. Therefore the High Court of Tanzania inherited it from High Court of England, which applies the judicial review under common law. 4. Boundaries of Judicial Review

In exercising of its powers of judicial review to the administrative actions, courts have boundaries or limitations[16]. These limitations or boundaries are divided into two groups, one, self-imposed limitations, and two, exclusion of judicial review by legislations.[17] 2. Statement of the problem.

In Tanzania, the High Court of Tanzania applies judicial review as it inherits it from England. Under this power the High Court of Tanzania controls both statutory and non-statutory actions of the administrative authorities.

Also the High Court of Tanzania inherits limitations imposed in the judicial review serve for legislations limitations, which depends on our own legislations. This study bases on looking the essential importance of judicial review and examines limitations or boundaries imposed to this power of the High Court in Tanzania.

Objectives of the Study

The study generally intends to look on the theoretical justification of judicial review of the administrative actions in Tanzania and examines on the effects of the boundaries to the power of the court in exercising judicial review over administrative actions.

More specifically, the study aims in showing the essential importance of judicial review in upheld of rule of law and enhance justice end in Tanzania, and examine whether there is a need of having boundaries to judicial review. 6. Study Hypotheses

This study is based on the following hypotheses 1. High Court of Tanzania inherited judicial review to keep administrative actions within bounds of law and to facilitate and promote justice. 2. There is no need of having boundaries to judicial review if we real need to protect our laws of the land and promoting justice end.

7. Significances of the Study

1. This study will give rise to understanding and make clear to the society, government and other administrative authorities on the importance and justification of judicial review. 2. Also this study will come up with tentative recommendations on both existing self imposed and statutory boundaries of judicial review.

3. This study will be an important input to the court of law when reviewing existing boundaries of judicial review and also to the administrative and legislature when making and confirming statutory boundaries of judicial review. 4. The successful completion of this research shall serve to the researcher a partial fulfilment of academic requirement for the award of Bachelor of Law (LL. B) at Tumaini University Iringa College.

1.8 Literature Review Judicial review[18] is the High Court procedure for challenging administrative actions; this is a legal procedure, allows individuals, business or groups to challenge in the courts the lawfulness of decisions taken by ministers, Government department and other public bodies. These bodies include local authorities, immigrate authorities, regulatory bodies and some tribunal.

Delegated legislation may also be challenged. Justice Simon Brown (as he was then) observed in the case of R v HM the Queen in Council, ex parte, Vijayatunga, that judicial review is the exercise of the court inherent at common law to determine whether the action is lawful or not; in a word to uphold rule of law. Her majesty Court service indicates that, the supervisory jurisdiction exercised in the main through the procedure of judicial review, covers persons or bodies exercising a public law function – a wide and still growing field.

Horne[19] goes further that, judicial review is not concerned with merits of a decision or whether the public body has made the right decision. The only question before the court is whether the public body has acted unlawfully. In particular is not the task of the court to substitute its judgement for that of decision makers.

The court would traditionally only intervene where the public body has used the power for the purpose not allowed by legislation (acting ultra vires) or in a circumstance where when using its power, the body has acted in a manner that was obviously unreasonable or irrational. In cases where there is a real unfairness, the court may now be willing to intervene where the public body has made a serious factual error in reaching its decisions.

The Alexander Horne research, although deals with judicial review and to some extent its boundaries, but is quite different from this one because he researched in UK and his paper seeks to explain how claimants bring applications for judicial review and also discusses the procedures for lodging and defending a claim.

It also considers the statistical trends in the Administrative Court and assesses some of the conflicts that have been identified between the executive and the judiciary following claims for judicial review, particularly in the field of Home Affairs. But this study is looking on theoretical justification of judicial review in Tanzania and examines boundaries thereto.

Paul Oludeye[20], regards judicial control of administrative acts is basically derived from common law principles that the High Court has a right to supervise and review decisions of inferior bodies or courts such as tribunals or magistrates, so if the inferior jurisdictions could be checked whenever they acted in excess or in default of their jurisdictions, there is no reason whatsoever why this principle does not apply mutatis mutandis to the wrongful administrative acts.

He goes further that, the rule of law which has been accepted in East Africa (Tanzania inclusive) demands proper limits on the exercise of power which power must first be given or approved by the parliament within definable limits and such limit must be consistent with certain principles of law such as the rule against natural justice.

The writer tries to show the theoretical justification of judicial review, but he looks generally as East Africa concerned and he mention nothing as far as boundaries of judicial review are concern.

This study will look theoretical justification of judicial review specifically and exclusively in Tanzania and the study will examine boundaries to judicial review.

Durga Das Basu[21] apart from defining judicial review, in justifying judicial review he observes that, if the rule of law and conformity to the provisions of the constitution of the land are to be maintained, these multitudinous administrative authorities must be brought under the control of the courts of law, so that the authorities may be kept within the powers and jurisdictions conferred upon them by statutes as well as to ensure that, even in their non-statutory functions, they do not violate any of the mandates of the constitution.

The writer also examines boundaries of judicial review, he provides that[22], courts in the Anglo-America world have laid down self-imposed limitations for the exercise of their power of judicial review over administrative action inasmuch as, in the absence of such self-imposed limitations where there are no statutory guides, there might have been an undesirable interference with the administration which is not the business of the courts.

The courts would not, therefore, interfere with administrative action unless a proper case is presented before it by a person aggrieved, and the matter relates to a justifiable right of the petitioner, as distinguished from a political or non-justifiable question.

Apart from the self-imposed limitations, which the courts themselves have evolved, to exclude from judicial review certain kinds of administrative action, judicial review may be curtailed or altogether excluded by legislation. Needless to say any judicial review of administrative action is bound to delay or impede the prompt execution of legislative policy, and also that, as human beings, the administrators must be intolerant of any interference form the judiciary which is not responsible for administration of the country.

Where therefore as under the Parliamentary system of government, it is the executive, which initiates legislation, it is no wonder that the executive would endeavour to secure from legislature exclusionary provisions in the relevant statutes so as to keep the court off as much as possible.

The writer deals much with the theoretical justification of judicial review and the examination of the boundaries of the judicial review, but this is different from this study due to different geographical researched area, as the writer researched in India, and also he touched England and USA generally, but this study deals specifically in Tanzania.

Also this study is much different from that of Basu due to different political and governmental policies of the countries researched. Jane Kay[23] in justifying judicial review discussed that; one might wonder how the existence of judicial review as an inherent power can be reconciled with the doctrine of parliamentary supremacy, the basis of our constitutional arrangements.

The courts justify their power by arguing that Parliament has granted only specific limited power to public authorities, and that parliament does not want these authorities to do anything, which it has not authorised. So to ensure that Parliament’s will is complied with, the courts must, by judicial review, keep public authorities within the boundaries set by parliament.

This is the core of the doctrine of ultra vires, on which judicial review is based. The writer goes further that, what has happened over the year, however, is that the courts have elaborated the whole range of principle of judicial review which parliament is deemed to have accepted by its failure to exclude them. Most striking are the rules of natural justice, which provides detailed codes of procedural requirements, which the courts will imply into bare statutory provisions.

The writer argues that, these principles of judicial review do not just exist by the implied permission of the parliament, but are fundamental principles whose existence is necessity if the rule of law is to be observed.

The writer also examines only two limitations of judicial review, one, time limit, under this the writer argues that the limit to challenge the administrative actions by judicial review usually measured in moths which is very short time, while in most areas of law the time limit is measured in years, but this is justified that the work of the administration would be impossible if the decision has to be undone long after they were made.

Second, the applicant cannot go to the court demanding judicial review as the right, instead he must ask the court for leave to make judicial review. But it has been argued that this restriction goes too far protecting the administration at the expenses of individual rights. The Jane Kay study based much on justifying the judicial review and also the author has examined the boundaries of the judicial review in England. But this study will cover all of those parts in detail as far as the position in Tanzania is concern. 9. Scope of the Study

The study will mainly focuses on judicial review as it applied in the United Republic of Tanzania, and will looks on the theoretical justification of judicial review and examines if there is a need of having boundaries to judicial review. The study will particularly be conducted in the Tanzania mainland. The study will involve institutions in Tanzania mainland where relevant materials will be found.

10. Research Methodology: This study aims at discovering the underlying justifications of judicial review and its boundaries thereof. Through this study we can analyse the various factors, which justifies judicial review and also analysing, and examine the boundaries to judicial review. Since the study is qualitative in nature, the data will be collected by use of two methods, namely: interviews and Documentary review.

1. Documentary review This method will solicit and gather data from libraries found in Tanzania mainland where relevant materials will be found, this source contains moderately substantial amount of literature concealed in textbooks, research papers, and law reports, which provided a wealth of data.

This include, library of the University of Dar es Salaam, library of Tumaini University Iringa College, library of Ruaha University, Libraries of High Court of Tanzania found in Dar es Salaam and Iringa registries. Also access to the different web search engines, which had some relevant sites to the study in question. These documents will provide contemporary events and help to understand judicial review and its boundaries thereto and how best are they or not. 2. Interviews

Interview is a system in which both an interviewer and an interviewee discuss the problem under research, the former usually taking the initiative with the aim of extracting information from the latter. Being the most widely used method in all kinds of practical situations, interviews will be carried out on a face to face encounter or via telephone, where questions constructed in advance will be asked to the respondents, the questions being designed to obtain answers pertinent to the study problem.

Key person to be interviewed will be the following: Ministers and Assistant Ministers selected randomly, Administrators of public institutions selected randomly, High Court Judges and Justices of Appeal, Regional Commissioners, Dar es Salaam and Iringa regions, chairpersons of local governments in Dar es Salaam and Iringa, Law Academicians and Lecturers of Administrative law and Constitutional law, at Tumaini University, Ruaha University, and University of Dar es Salaam.

11. Sampling Plan The sampling technique to be used in this study is random one. The technique will be used to select interviewees in the relevant locality. Bearer of relevant offices to be interviewed have also been chosen randomly just by virtue of their positions.

12. BIBLIOGRAPHY Basu D. D., Administrative Law, (Fifth Ed.), (2000), Kamal Law House, Calcutta. Garmer, B.A., (Ed.), Black’s Law Dictionary, (7th Ed.) West Group, St. Paul. Kay J., Swot Administrative Law, (1999), Blackstone Press Limited, London. Oludeye, P.A., Administrative Law in East Africa, (1981), Kenya Literature Bureau, Nairobi. Research Paper No. 6/44, Judicial Review: A short Guide to Claims in Administrative Court, by Alexander Horne, UK Report of Scoping on Judicial review of decision of Crown Court, 1999. Sathe, S.P., Administrative Law, (7th Ed.), (2004), Butterworth, New Delhi. Wade, H.W.R. and C.F. Forsyth, Administrative Law, (Ninth Ed.), (2004) Oxford University Press, Great Britain.

[1] Black’s Law Dictionary, at pg. 46 [2] As per Durga Das Basu, Administrative Law (2000). [3] (1955) 2 SCR 225 [4] As per Durga Das Basu (2000) [5] Article 3 (1) of the Constitutuion [6] Rule of law, separation of powers and parliamentary supremacy. [7] Black’s Law Dictionary, pg. 864 [8] Britannica Concise Encyclopaedia. [9] As per Encyclopaedia of American History. [10] Paper titled, Challenges to Crown Court Decisions. [11] Changed in 1838.

[12] From 1919 to 1961

[13] Subject to the provisions of this Act, the jurisdiction of the High Court shall be exercised in conformity with the written laws which are in force in Tanzania on the date on which this Act comes into operation (including the laws applied by this Act) or which may hereafter be applied or enacted and, subject thereto and so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the twenty-second day of July, 1920… [14] Revised 2002

[15] 1977 [16] Durga Basu (Administrative Law (2000)) [17] Ibid [18] Research Paper No. 6/44, Judicial Review: A short Guide to Claims in Administrative Court, by Alexander Horne, UK [19] Ibid [20] In his book titled, Administrative Law in East Africa [21] In his book titled, Administrative Law: 2000 [22] At page 418 [23] In the book titled, Swot Administrative Law (1999), pg 29.