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“…… law should neither be treated as petrified, or blind, as to be deviated from its mission of the promotion of justice, nor should it content itself with playing umpire in a technical game of legal skills on the same, but must be activist in the cause of deciding or adjudicating real issues between the parties. For once, we religiously over adore the circuiting of cases on procedural technical grounds, the consumers of justice can have scant respect for procedural law or policy, which is concerned more with who sparks the plugs of the Court system than with what the merits of the rights or wrongs of the relief are.”
So, is there any meaning that can be given to phrases “Judicial Activism” and when a Judge acts in “Judicial restraint”? A formal manner he is said to be restrained and where be acts in a grand manner he is said to be activist. What is the activist approach? The activist in constitutional, common law and statutory law approached the law in a manner opposite to that of judicial restraint. He views democracy instrumentally in that the judicial branch promotes ideals that go with a democrat system and in consequence serve justice. A utilitarimu conception of Justice is therefore part of an activist’s outlook. For the activist what is just may not be what is necessary implied by the law. Legislative enactments are schemes of social action that arise from suspect political wheeler dealing and often result from compromises that defy logic when it comes to applying the scheme. The activist looks at the mischief designed to be cured and uses this evaluation to apply the supposed intention of the scheme unto particular disputes.
The Author is a Senior Lecturer in Law at the Faculty of Law, University of Dar es Salaam, where he teaches Jurisprudence and Land Law. He is an Advocate of the High Court of Tanzania and has appeared in some of the cases mentioned in the paper.
In constitutional law the activists views the Constitution as a living dynamic document which needs broad interpretation to suit the needs of the times. The restrained jurist would only try to divine the meaning of the makers of the constitution whilst the activist would give fundamental principles of the constitution.
Finally the activist separates himself from the restrained jurist in the treatment of case law as he uses precedent as a guide and does not hesitate to build upon it or reinterpret it to meet exigencies of the time.
Professor Peter in a paper entitled Judicial Activism in Tanzania (1998) summarises the trends in our High Court and Court of Appeal. The scale falls on the side of restraint with intermittent sparks of activism.1 In the High Court of Tanzania he evaluates those Judges who have “bold spirits” vis-à-vis those with “timorous souls”. Professor Peter notes that “very few members of the Bench” … could be characterised as judicial activists.2 Then there are aloof and indifferent justices who throw out matter on technical faults; and those who simply “play it safe” due to largely fear of the State; and lastly those who stand on the wall: activist today conservative tomorrow. Peter however admits that the blanket characterisation may not be correct in view of the lack of law reporting in the country. In Professor Peter’s view the Court of Appeal compares badly to the High Court. it has derived “excellency in technicalities and double standards.” In the case of Ukandi s/o Nanale v.
The scenario presented is that the Court of Appeal views its role as that of balancing interests in such a way that the “status quo” is not disturbed. The Chief Justice of Tanzania is on record in fortifying this view: “I do not agree
with the jurists who say to the effect that the Courts are bound to administer the law even if heaven falls.”* The remark apparently aimed at Human Rights activists has been seen as an anti-activism stance and to it professor Peter comments:
“Let it be added that, as others have observed though the society expects the judge to be calm, objective and neutral; at the same time some form of judicial activism is not only seen as permissible – but as a tradition within the common law tradition. This tradition can only be sustained by judges and other officials of the judiciary who are not afraid of disturbing the status quo. It should be judicial officers who are prepared to uphold justice – even if that means that heaven should
The status quo does benefit some member of society in any class divided society. To change it is to change “their heaven” and is this conception that activists refer to “heave” falling.
This paper takes its que from Professor Peter’s paper given in the last Judge’s Workshop in September 1998 and follows on some ideas developed in a Paper on Minority Rights in Tanzania. What was considered then was how the judiciary has handled this issue concerning the land rights of minority pastoralists in Tanzania. By then the most recent decision had been that of the High Court in Moshi in: Lekenyare Fennu Kanunyu vs.
These decisions had been received by indigenous people the world over with serious anxiety mixed also with hope. An acknowledged organ that voices the concerns of indigenous people the world over has this to say on the Tanzanian Judiciary:
parliament MPs from both government and opposition parties alike following election petition from candidates who lost in the 1995 election. However, it remains to be seen whether total judicial independence will extend to cases brought by pastoralists communities alleging violation of their customary land rights.”4
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