THE SUMMATION OF LECTURES ON ADMINISTRATIVE LAW

I
TABLE OF CONTENTS
Introduction 6
The Scope of Administrative law 10
The Pertinent Legal Sources of Administrative Law 10
Constitution 10
Basic Rights and the Rules of Natural Justice 14
Constitution Foundation of Administrative Law 20
The Supremacy of the Constitution 26
Written Laws 26
Principal Legislation and Subsidiary/Subordinate Legislation 27
Subsidiary/Subordinate Legislation 27
Delegation and Sub-delegation of Powers 29
Case Law Development on Administrative Law 35
THE LIST OF PROMINENT REFERRED CASES 37
APPENDIX I 38
ADMINISTRATIVE LAW VERSUS CONSTITUTIONAL LAW 38
APPENDIX II 39
GENERAL PRINCIPLES IN MAKING SUBSIDIARY LEGISLATION 39
APPENDIX III 40
TUTORIAL QUESTIONS 40
COVERED TOPICS
TOPIC
1 Nature and Scope of Administrative Law
- Defining Administrative law
- Sources of Administrative law
- Growth of Administrative law
- The Executive Agencies
- Classification of Administrative
Functions/Actions
2 The Pillars of the State
- The Executive
- The Parliament
- The Judiciary
Basic Constitutional Principles
- Separation of Powers
- Independence of the Judiciary
- Rule of Law
- Parliamentary Supremacy
- Supremacy of the Constitution
- Respect of Human Rights
- Sovereign of the People
3 Principles/Rules of Natural Justice
- The Right to be heard
- The Right against bias
- Reasons for the Decision
1. Introduction
The sources of law can be classified as either legal or historical. The former
are those which are recognized as such by law itself and the latter are those
 sources lacking formal recognition by law. The legal sources of law are
authoritative while the historical are unauthoritative. The legal sources take
precedence and command in the courts of law while the historical sources
have no such command, they influence more or less extensively the course
of legal development. 1

The term sources of law in ordinary expression means where do we find the
laws governing National or International legal system or a particular
discipline of law. Herein, the term sources of law have been linked with
only national laws particularly administrative law and the legal system of
Tanzania at large. The question of what are the sources of law governing a
particular discipline of law may be tentative, at least in administrative law
this issue is settled. This discipline of law is said to be of political nature so
associated with the constitutional law. Hitherto, this fact cannot be
denied as Constitutional law is of paramount importance for the appropriate
comprehension of Administrative law. Above all, Constitution is the
superlative legal source of Administrative law accompanied with written
laws and case laws.
This lecture paper is the summation of all lectures on administrative law in
relation to the three prime sources of administrative law. The paper
describes each source independently and underlines the interconnection
between one source and another commencing with the Constitution, Written
laws while deriving authoritative support from Case laws.
Prior to the synopsis of the sources of administrative law in Tanzania, the
foremost part of this paper appreciates the meaning, concept and scope of
administrative law, following by the pertinent legal sources of
administrative law including Constitution and its supremacy feature, written
laws including principal and subsidiary legislation.
2. Defining Administrative Law
Administrative law as the name suggests, is the law relating to
administration. However, describing administrative law in such context, it
does not explore the legal content and concern of this law. A better way of
defining administrative law would therefore be to say administrative law is
the law relating to control of government power. Every government wields
enormous powers over its subjects and such powers are likely to be abused.
Administrative law keeps administrative powers within their legal limits so
as to protect the citizens against the abuse. Administrative law compels
public authorities to operate within the cycle of defined legal duties. 2

At large, administrative law deals with the structure, powers and functions of
the organs of administration; the methods and procedures followed by them
in exercising their powers and functions; the methods by which their
controlled and the remedies which are available to a person against them
when his rights are infringed by their operation. Dr Mahajan argues that, for
3

the proper articulation of administrative law the understanding of

classification or branches of law is of at most importance.
Thus, administrative law falls under the National law particularly under the
category of Public law. Public law is further divided into three categories
4

which include Constitutional law, Administrative law and Criminal law.

Administrative law as branch of public law deals with the structure, powers
and functions of the organizations of administration, the limits of their
powers, the methods and the procedure followed by them and the methods
by which their powers are controlled including the legal remedies available
to persons whose rights have been infringed. 5

In Tanzania perspective, the concept of branches of law and the meaning of

 administrative law has been reflected by Professor Issa G. Shivji (et al) in
the book titled Constitutional and Legal System of Tanzania, 2004. The
book opines that, Criminal law, Constitutional law and Administrative law
are the foremost categories of law under the umbrella of Public law. This6

esteemed book defines Administrative law in contrast with Constitutional

law in the sense that, while constitutional law provides for the institutions
of the State and the government and allocates power to different organs of
the state, administrative law is another category of public law which deals
with how the public organs and officers are to exercise powers including
the limitation of the same powers.
Administrative law as it has historically been understood presupposes that
there is something called administration. The administrator and/or the
administrative agency or organization exists as a bound reality.
Administrative law prescribes behavior within administrative
organizations, more importantly; it delineates the relationship between
those inside an administration and those outside it. Outside administration
lie both the statute maker whose laws and regulations administrators owe a
legal duty to faithfully implement and the Citizens to whom administrators
owe legally correct procedural and substantive action.
Generally, Black’s law dictionary 8 edition, 2004 at page 137, defines
th

administrative law to mean the law governing the organization and

operation of administrative agencies (including executive and independent
agencies) and relations of administrative agencies with legislature, the
executive, the judiciary and the public. Administrative law is divided into
three parts; The statues endowing agencies with powers and establishing
rules of substantive law relating to those powers; The body of agency
making law consisting of administrative rules, regulations, reports, opinions
containing findings of fact and orders; The legal principles governing the
acts of public agents when those acts conflicts with private rights.
It is therefore the main theme of administrative law to regulate the
interconnection between the Government institutions and private
individuals or Corporations in the context of exercise of powers. The broad
sense of administrative law involves the study on how the superlative
pillars of the State in our system of Government make decisions while the
narrow sense takes into consideration on how the delegates of the three
pillars of the state in our system of Government exercise the delegated
powers such as rule making action, rule decision action and rule interpretation
and application actions.
The Scope of Administrative law
By and large administrative law covers within its scope nature and
operation of officials powers (permits, orders, ministerial, administrative
actions and the legitimacy of the underlying procedures). It covers the
formal procedural conditions for the existence of powers, officials and
communal liabilities, the specific remedies for judicial control of
administrative actions, jurisdictional limitations or powers and questions of
administrative finality (ouster clauses). 7

Administrative law set equilibrium for the administration of procedural

powers and actions, its principles of reasonableness, natural justice, and at
large fair administration procedures are universal recognized both in
National, Regional and at International sphere where for example the
Universal Declaration of Human Rights, 1948, International Covenant on
Civil and Political Rights, 1966 and African Charter on Human and Peoples
Rights, 1986 recognize fair hearing and just administrative procedures.
3. The Pertinent Legal Sources of Administrative Law
3.1. Constitution
Constitution is not only the superlative source of Administrative law but
also the supreme law of the land of which all other laws ought to be
subjective to it. The constitution is of no doubt the foundation of
administrative law, administrative law and constitutional law forms the two
sides of the same coin. Constitution is the document of legal sanctity
establishing the major organs of the State, the Executive, Judiciary and
Legislature and provide for the operation of such organs in relation to each
other and the governed public. It is the ancient doctrine that constitution
ought to be the creature of the people and not executive, yet, this doctrine
is still struggling to gain impetus in most of African law jurisdiction.
For example, in Tanzania since Independence Constitution 1961, The
Republic Constitution, 1962 The Interim Constitution of the United Republic of
Tanganyika and Zanzibar, 1964, The Interim Constitution of Tanzania, 1965
up to the Constitution of the United Republic of Tanzania, 1977 public
participation was never the apprehension of the executive. Save for the
land mark year 2011/2012 where the new constitutional making process
took place to 2014 Proposed Constitution of the United Republic of
Tanzania, by and large the public were involved, and still involved, but
not satisfactorily involved.
The holiness of the Constitution lies at large from the people and of course
in line with Article 8 of the Constitution of the United Republic of Tanzania
sovereign resides from the people and it is from the people that the
Government through the constitution derives all its power and authority.
The leading minority represents the objectives of majority who are the
people; the Government ought to be equally accountable to the people in
due process of exercise of powers. The constitution generally is the major
source of administrative law because it guarantees the limitation of powers
for the Executive, Parliament and the Judiciary for the reasonable and just
operation. It is the main apprehension of administrative law to see equality
and fair procedures in all supreme arms of the state towards ordinary
citizens and against each other.
Constitutional law is at primacy when there is explicit guarantee of the Bill of
rights, Separation of powers, Independence of the judiciary and Rule of law.
So far as the arm of constitution extend to both Public and Private
corporations, Civil and Private servants, Armed forces and all other
Organizations, on the other hand, administrative law takes precedence in
internal and external relations of those organs including the relationship
and exercise of powers between one person and another or one organization
towards another. This suggests that, the general knowledge of administrative
law is of vital importance as no any human being would survive an
ordinary life cycle without coming across this nature of law.
Administrative law is everywhere, every day and will perpetually endeavour
to exist.
Administrative law is not concrete or enshrined in a specific Act of the
Parliament, there is nothing like Administrative law Act in Tanzania.
Administrative law derives its foundation from the constitutional law, it
supplement constitutional principles, it operates in multidisciplinary, it
takes into consideration all other laws at once, it administers all expressly
and implied procedural powers set in numerous written laws including
those in Criminal and Civil proceedings.
Specifically, the Constitution of the United Republic of Tanzania, 1977 as
amended time to time is the foremost source of administrative law in
Tanzania. It provides for the praised principles of Rules of law, Separation
of powers, Independence of the Judiciary, Sovereignty of the people,
safeguard of basic rights and supremacy of the constitution. 9

The Executive actions are justified by the constitution and may be

challenged in courts of law where the actions are inconsistence with the
constitution. This was evidenced in the recent petition of Legal and Human
Right Centre and Tanganyika Law Society vs. Honorable Mizengo Pinda and
Attorney General where the Prime Minister was quoted in the Parliament as
saying that; 10

“if you cause disturbance, having being been told not to do this, if you decide to obstinate,
you only have to be beaten up… and I am saying, you only have to be beaten up… and
I am saying you should keep on beating them because we don’t have other means…”
Even though the petition was struck out but the petitioners were aggrieved by
the quoted statement and challenged the same on ground that it contravenes
fundamental rights of the constitution of the United Republic of Tanzania,
1977 which prohibit violation of the right to life and seek to protect the rule
of law and natural justice particularly fair hearing. The statement was said
to encourage abuse of powers by the Police and hence Articles 12(2), 13 and
14 of the Constitution of the United Republic of Tanzania, 1977 were said
to be infringed. The petitioners in this case acted for and on behalf of the
public, this mechanism necessitated the petition to fall under what so called
Public Interest Litigation.
Such litigations are said to be the catalyst for the proactive development and
wide spread of constitutional and administrative law in the sense that, it
evidences proper proceedings to advance public interest, the proceedings
contribute to the proper understanding of the law and involve no private
gain or costs of the case. It is noted under the last paragraph of the ruling that;
“…Consequently, we order that the petition be and is hereby, struck out. Costs are
within the Courts discretion, though they usually follow the event. However, as the
case falls within the category of public interest litigation, we would refrain from making
any order as to costs.’ [Emphasis supplied].
Even where the petition was struck out, the general objective of public
interest litigation in one way or another was attained, in quintessence that, the
petition called upon public attention on the understanding of constitutional
and administrative law and hence the message was delivered and the public
understanding of the constitution law, basic rights and the rules of fair
hearing was upgraded. 11

3.2. Basic Rights and the Rules of Natural Justice

The basic rights as incorporated in Tanzania since the land mark year 1984
still form part even in the 2014 Proposed Constitution of the United Republic
of Tanzania. It is from the provision of the Basic rights and duties where the
rules of Natural justice essentially the Right of fair hearing or the right to be
heard can be extracted from and applied in administrative law. The
principles of natural justice are easily to proclaim, but their precise extent
is far less to define. Nonetheless, in the case of O’Reily vs. Macmann [1983]
12

AC 227 it was underlined that natural justice is minimum standards of fair

decision making which may not be necessary imposed by law but implied to
in determination of individual rights. In the case of Mbeya-Rukwa Auto
Parts& Transport Limited vs. Jestina George Mwakyoma Civil Appeal No 45 of
2002, the court supplemented the constitutionality of the principles of natural
justice in Tanzania where it was held that;
“In this country natural justice is not merely a principle of common law; it has become a
fundamental constitutional right. Article 13(6)
(a) include the right to be heard amongst the attributes of the equality before the
law….”
It therefore noted from the provision of Article 13(6) (a), that equality
before the law in Tanzania takes into consideration the rules of natural
justice which include among others the right to be heard (fair hearing).
Such a fundamental right ought to be adhered not only by the Courts in
determination of rights and duties but also other agencies including
Executive Agencies like BRELA, TFDA, OSHA, TRA and other private
13 14 15 16

institutions with rule decision actions which may be similar to judicial

actions. The rule under Article 13(6) (a) binds both the judicial actions and
administrative actions by all other Agencies of the Government and Private
institutions. Under the 2014 proposed Constitution of the United Republic of
17

Tanzania, the right to be heard has been expounded to include the right to be
heard for the accused and detained persons.
This does not go far as it is under Articles 47, 48 and 50 of the Kenyan
Constitution, 2010 where the provision for the fair administrative action, fair
hearing and access to justice are as good as wide to cover enhanced
administrative procedures including but not limited to the rules of natural
justice and the supplement right for the review of administrative actions by
the competent court or independent and impartial tribunals.
One of the prominent features of the right to be heard is access to justice
through legal representation. One of the disparity observed both under the
1977 Constitution and the 2014 proposed Constitution of the United Republic
of Tanzania is that the two constitutions only enact for the right to be heard
(aud alteram paterm) and the other two developed rules that of against bias
(nemo debet esse judex in propria sua causa or nemo judex in re sua) and
reasons for the decisions (nullum arbitrium sine rationibus) find no tighten
security under the Constitution and written laws. Save only in case law for
example where Lord Dening established the test for the rule against bias in
the following attitude;
“In considering whether there was a real likehood of bias, the court does not look at the mind
of the justice himself or at the mind of the tribunal or whoever it may be, who sits in a
judiciary capacity. It does not look to see if there was a real likelihood that he would or did
in fact favour one side at the expense of the other. The court look at the impression which
would be given to other people….there must be circumstances from which a reasonable
man would think it likely or probable that the justice or the chairman would or did
favour one side unfairly at the expense of the other….it suffice if reasonable people must
think he did, justice must be rooted in confidence. And confidence is destroyed when the
right minded people go away thinking the judge was biased.”19
Under the Common law of England where the rules of natural justice
actually derive it roots from, the rule against bias seems to be the oldest rule
of which the other two rules, fair hearing and the reason for the decision
emanates from. In fact, the existence of only aud alteram paterm in the
20

constitution may also be construed to take into consideration the rule

against bias and reasons for the decisions. Moreover, Apart from the
Constitution, numerous written laws in Tanzania require the authorities to
preserve the rules against bias and provide for the reasons for the decisions
in all proceedings affecting public and individual rights. Bubesh J in Mhidin
Ahmad Ndolanga & Another vs. National Sport Council & Another (1996) TLR
325 underlined that;
“…administrative body exercising functions that impinge directly the legality recognized
interests, owes it a duty to act judicially in accordance with the rules of natural justice which
basically means the adoption of fair procedure, which fundamentally demands freedom
from interests and bias on the part of the administrative body and the right to fair hearing
for those who are immediately affected by its decision…”
The rules of natural justice even though may be construed in line with
constitutional principles of dispensation of justice under Article 107A, but 21

they are not the creature of the Constitution but rather they have the status
of Human rights incorporated in Tanzania in 1984 from the Universal
Declaration of Human Rights, 1948. The rules for fair hearing are also
enshrined under the International Covenant on Civil and Political Rights,
1966 and also referred from the believed verses of the Bible where God did not
victimize Adam without the right to be heard.
It is contended by Lord Fortescue J in R vs. Chancellor of the University of
Cambridge (Dr Bentley’s case) (1723) that;

“The laws of God and Man both give the party an opportunity to make his defence if he
has any. I remember to have heard it observed by a very learned man upon such occasion,
that even God himself did not pass sentence upon Adam, before he was called upon to
make his defence.”
Professor C. P. Maina argues that, the constitution gives the rules of natural
justice special status in Tanzania legal system and it is not easy to ignore them
anymore, even in absence of Article 13(6) (a) that was in the eon prior to
23

1984, the Courts of law in East Africa particularly Tanganyika had a proactive
tradition of applying the rules of natural justice as done elsewhere under
common law system and particularly through case law. This is evidenced in
the case of Hypolito Cassiano De Souza vs. Chairman and Members of the
Tanga Town Council where in 1961 the Court of Appeal for Eaten African
24

revealed that the accused person must know the nature of the accusation
and fair opportunity to be heard must be given to those who are parties to
the dispute. 25

The rules of natural justice apply not only in administrative law as a unique
discipline of law but also in judicial civil and criminal proceedings, extra
judicial practice, in tribunals and in communal relations. In the case of
Sadik Athuman vs. R (1986) T.L.R (HC) at 238 the Court emphasized that;
“There is a misconception of the rules of natural justice that it is exclusive principle of
Administrative Law. It is not, it s first a universal principle and therefore a rule of
administrative law. It is that part of judicial procedure which is imported into
administrative process because of its universality.”
Surprisingly, children though not aware of, yet they perpetually practice
the rules of natural justice in their ordinary game play life. For example A
may ask B why did you eat my chocolate? The answer to that question
determines continuation of friendship or the verdict of ending the existing
friendship, but at least B has been afforded with the right to be heard. If at
all A decides to end the friendship, the reasons for the decision will
obvious be B is not a good friend as he did eat his friend chocolate without
any permission.
The importance of reasons of the decision in administration of justice was
highly emphasized in the case of Tanzania Air Services Limited vs. Minister
for Labour, Attorney General and The Commissioner for Labour (1996) TLR
217 (HC) where it was noted that under common law there is no general
requirement that public authorities should give reasons for the decisions but
this position has been under criticism. The Court argues that;
“The judge must give reasons for his decision: for by so doing, he gives proof that he has
heard and considered the evidence and arguments that have been produced before him
on each side: and also that he has not taken extraneous considerations into account. It is of
course true that his decision may be correct even though he should give no reasons for it
or even give a wrong reason: but, in order that a trial should be fair, it is necessary, not
only that a correct decision should be reached, but also that it should be seen to be based
on reasons; and that can only be seen if the judge himself states his reasons.
Furthermore if his reasons are at fault, then they afford a basis on which the party
aggrieved by his decision can appeal to a higher court. No judge is infallible, and every
system of justice must provide for an appeal to a higher court to correct the errors of the judge
below. The cry of Paul "I appeal unto Caesar" represents a deep-seated human response.
But no appeal can properly be determined unless the appellate court knows the
reasons for the decision of the lower court. For that purpose, if for no other, the judge
who tries the case must give his reasons.'
Furthermore, the Court articulated the importance of giving reasons for the
decisions in the following manner;
`... First, the requirement of a reasoned opinion provides considerable assurance that the
decision will be better as a result of its being properly thought out. Second, reasons will
enable a person who has a right of appeal to determine whether he has good
grounds for an appeal and will inform him of the case he will have to meet if he does
decide to appeal. In this regard, if an administrative determination is not the result of
unanimous votes of the decision makers, the minority opinion may be of considerable
value to an unsuccessful party Third, reasons will make a tribunal more amenable to the
supervisory jurisdiction of the courts and will ensure that a tribunal is acting within
its powers.
That is to say, reasons will inform a person why a decision has been made and will
make manifest any errors of law. Fourth, reasoned opinions will encourage public
confidence in the administrative process. As was noted in a leading English case, even
though a decision may be perfectly correct, if a party was not given reasons he "was left
with the real grievance that he was not told why the I decision had been" (In re
Poyser and Mills' Arbitration [1964] 2QB
A breach of the rules of natural justice renders the whole decision nullity. It
is a sufficient ground for judicial review. In the case of D.P.P vs. S.I Tesha and
R. Tesha [1993] TLR 237 it was stated that;
“If the principles of natural justice are violated n respect of any decision it is immaterial
whether the same decision would have been arrived at in the absence of departure from
essential principles of natural justice. That decision must be declared to be no decision.”
3.3. Constitution Foundation of Administrative Law
The constitution foundation of administrative law form the basis of it being
the source of administrative law and whoever sought to comprehend
administrative law must first grasp the general knowledge of constitutional
law. Thus is why constitutional law as of practice in Tanzania law programme
is the first year course and administrative law is the second or third year
course depending on the duration of the law programme. The bush lawyer
may easily draw unqualified line of demarcation between administrative
law and constitutional law while learned brothers and sisters ought to and
not just once, but always apply the constitutional principles of separation
of powers, independence of the judiciary, rule of law, supremacy of the
constitution, parliament supremacy, sovereignty of the people and respect
of human rights in line with administrative law. 26
 Save that, not all Constitutional principles may easily match up for in
administrative law. For example, the principle of Separation of powers as
set in Article 4 of the Constitution is said to have no basis in administrative
law as the Parliament under Article 97(5) delegates its exclusive legislative
powers under Article 64 to other persons, Government department and
executive agencies who may make subsidiary legislation, interpret them as
judiciary and enforce them as the executive. So far as a single Executive
Agency or administrative authority can legislate, interpret and adjudicate,
the principle of separation of powers is therefore derogated. However,
Nyalali Cj (as he then was) in Attorney General vs. Lohay Akonay & Joseph
Lohay noted that; 27

“It is the basic structure of a democratic constitution that state power is divided and
distributed between three state pillars. These are the executive, vested with executive
powers; the legislature vested with legislative powers, and the judicature vested with
judicial powers. This is clearly stated under Article 4 of the constitution….it follows
therefore that wherever the constitution establishes or permits the establishment of any
other institution or body with executive or legislative or judicial power, such institution
or body is meant to function not in lieu of or in derogation of these three central
pillars of the state, but only in aid of and subordinate to those pillars. …” [Emphasis supplied]
It should be noted that, even though the constitutional principle of separation
of powers is not pertinent in administrative law, yet administrative law is to
the effect that, where the constitution or any Act of the parliament delegates
the legislative, adjudicative and enforcement powers to other bodies,
Government department or executive agencies, the delegated powers are
not absolute, not lieu of or in derogation of the supreme powers vested
to the three pillars of the state and hence the abuse of such powers by the
delegates may be challenged in the courts of law basing on the fact that
the delegated powers are not absolute but rather subordinate to executive,
judiciary and the parliament.
H.W.R. Wade argues that, all subordinate (delegated/subsidiary) powers are
subject to the following inherent characteristics; 29

a) They are all subject to legal limitations, not absolute. There is no such thing
as absolute or unregulated administrative powers.
b) It is always possible for the powers to be abused. Even where the Act of the
parliament enacts that Minister, Persons, Independent institutions, Government
department and executive agencies may make such orders, exercise such powers
or make subsidiary legislation as they think fit for a certain purpose, the court
may still invalidate the orders, powers or any subsidiary legislation if it infringes
or else go beyond the prescribed powers or the general rights of the public.
Accordingly, the powers enacted for under Article 97(5) of the Constitution
of the United Republic of Tanzania, 1977 are subordinate to Article 64 of
the same constitution. Administrative law has set its mechanism to ensure
that all subordinate powers remain intact with the description of the
Constitution and written laws, even where separation of powers may have
been derogated but such derogation does not supersede the supreme pillars
of the state but only in aid of and subordinate to those pillars. Any
purported ouster of jurisdiction for the competent courts to deal with
unreasonable abuse of subordinate powers is unconstitutional.
Besides, the constitutional principle of the separation of powers and
independence of the judiciary are not pertinent in judicial administration in
Tanzania. The judiciary means the Court of Appeal, the High court and the
Courts subordinate thereto where the functions of those institutions are
performed by the judicial officers who determines and adjudicate diverse
of cases. Nonetheless, it is evidenced under the provisions of Sections 50
and 51 of the Judiciary Administration Act, 2011 where disciplinary31

procedure for the judicial officers is undertaken by the members of the

executive who form part and parcel of the Regional Judicial officers Ethics
Committee and District Judicial officers Ethics Committee. In the two
committees, the Regional Commissioner and the District Commissioner
preside over as chairmen and Regional Administrative Secretary is the mere
member of the Regional Judicial Officers Ethics Committee while District
Administrative Secretary is the secretary to the District Judicial officers
Ethics Committee. Above all, the Regional and District Commissioners are
the appointing authorities of two other members in respect of their
committees.
The Regional Commissioners are appointed by the President under Article
61(1) & (2) of the Constitution, they are considered part of the executive,
they carry all executive functions of the Government at the regional level.
They form part and parcel of the central Government. Both District and 34

Regional Commissioners are clearly not elected leaders, the two are
appointed leaders and accountable to the President, yet they preside over
another pillar of the state which is the judiciary, this infringes not only the
doctrine of separation of powers but also independence of the judiciary.
In the case of DPP vs. Daudi Pete [1993] it was uttered that, the doctrine of
separation of powers can be said to be infringed when either the executive
or the legislature takes over the function of the judicature involving the
interpretation of the laws and duties in disputes either between individual
persons or between the state and individuals. From this perspective, it is
apparent that, the Judiciary Administration Act, 2011 infringes the
constitutional principle of separation of powers and independence of the
judiciary by amalgamating the Regional Commissioner and District
Commissioner in the judicial administration. As against inclusion of
35

executive and political figures in the judiciary, Chipeta J in Republic vs. Idd
Mtengule (Criminal Rev No 1 of 1979) noted that;
“ ..as I understand the constitutional position in our country, the judiciary is supposed to
be an independent institution in the sense that those who are entrusted by the Constitution
to decide the rights and liabilities or the guilt or innocence of people must be free from all
kinds of pressures regardless the corners from which those pressures come. The
judiciary must be free from political, executive or emotional pressures if it is going to
work with the smoothness and integrity expected of it under the supreme law of the land-
the constitution…”36
The executive functions and powers of the Regional Commissioners and
District Commissioners are enacted for under the Regional Administration
Act, under which the theme of the whole Act seems to be of political
37

operation. The association of such function with the judiciary will easily
destabilize the praised constitutional principle of the independence of the
judiciary.
Worse enough, Article 66(3) of the Tanzania Constitution implies the validity
of the Regional Commissioners to be members of the Parliament. 39

Consequently, the Regional Commissioners in Tanzania may sit in the

Executive, Parliament and the Judiciary at the same time, this practice
undermines not only the principle of separation of powers but also
independence of the judiciary in administration of justice. May he 40

eternally rest in peace, but at this juncture it important to remember that

Julius Kambarage Nyerere once pointed out that;
“...it is of paramount importance that the execution of the laws should be without fear or
favour, our judiciary at every level must be independent of the executive arm of the state….”
Apart from the disciplinary procedures for the judicial officers, the
appointment of judges in Tanzania and the whole process of judges operation
do not by and large draw the competent line of separation of powers and
independence of the judiciary, there is a lot more to learn from Constitution
of the Republic of Kenya, 2010 and the Kenyan Judiciary Service Act No 1
of 2011 where the principles of transparency in appointment of judges are
set and the Chief Justice and Deputy Chief justice are appointed by the
president basing on the recommendation of the Judicial Service Commission
and subject to the approval of the National Assembly. 41

3.4. The Supremacy of the Constitution

The enactment of Article 64(5) was premeditated to uphold the constitution
above all laws including administrative law. Constitutional supremacy makes
it superior law beyond all principal legislation enacted by the parliament and
subsidiary legislation by other authorities. Without shred of doubt, that alone
is the basis for the constitution to acquire the highest status as the major
source of not only administrative law but also all other written laws in
Tanzania. The master mind behind the supremacy is that all laws governing
administrative law ought to be consistence with the constitution in all
substantive manners or else the same may be declared unconstitutional.
3.5. Written Laws
Written laws are the second primary sources of administrative law in the
hierarchy right away after the Constitution. The application of written laws
as source of Law in Tanzania was first provided in the Judicature and
Application of Laws Act (JALA), which stated that, the jurisdiction of the High
court shall be guided by the written Laws which are in force in Tanzania
on the date on which the Act came into operation. The definition Section 4
42

to the Interpretation of laws Act, 2002 defines written laws to mean all
Acts for the time being in force and all subsidiary legislation for the time
being in force, and includes the Acts of the community and all applied
laws.
At this stage of interests in this definition are the Acts of the Parliament
and subsidiary/subordinate/delegated legislation as the sources of
administrative law.
3.6. Principal Legislation and Subsidiary/Subordinate
Legislation
Legislation is either supreme or subordinate. Supreme legislation proceeds
from the supreme or sovereign power of the state which is therefore
incapable of being repealed, annulled or controlled by any other legislative
authority other than the supreme legislative authority. On the other hand,
subordinate legislation is that which proceeds from any authority other
than the sovereign power of the state, and is therefore dependent for its
continued existence and validity on supreme authority. 43

In Tanzania context, principal legislation are enacted by the Parliament as

the supreme body under Article 64(1) of the Constitution, while subsidiary
legislation are made by other persons or bodies like government departments
or executive agencies under the directions of Article 97(5) of the Constitution
of United Republic of Tanzania,1977 as amended 2005.
3.7. Subsidiary/Subordinate Legislation
The subsidiary legislation are the main concern of administrative law rather
than the principal legislation as the body enacting such legislation is well
 established and the procedures are well prescribed where for example in
Tanzania the applicable laws which set the procedures for the enactment of
principal legislation are the Constitution of the United Republic of
Tanzania, 1977 as amended 2005 and the Parliament Standing Orders, April
2013 which is the subsidiary legislation under Article 89 of the same
Constitution. The parliament enact principal and make subsidiary legislation
44

while all other persons, Government departments, ministers, public

corporations and executive agencies under Article 97(5) of the Constitution
make only subsidiary legislation. This principle is emphasized by the
45

Supreme Court of India in Chief Settlement Commr vs. Om Prakesh AIR 1969
SC 33, 36; (1968) that;
“…..under our constitutional system the authority to make law is vested in parliament
and the state legislatures and other law making bodies and whatever legislative power
the executive administration posses must be derived directly from the delegation of the
legislation and exercised validly only within the limits prescribed...”
For there to be subsidiary legislation which includes by-law, regulations,
notice, proclamation, instrument, rules and rules of the court there must a
principal legislation enabling a particular authority so to make such
subsidiary legislation. It is the sole role of administrative law to ensure that
46

any authority mandated to make subsidiary legislation observe the

procedural and substantive requirement of the enabling Act prior to the
making process and after the making.
The law to be observed in the making of the subsidiary legislation is not only
the Constitution and the relatable enabling Act of the parliament but also all
other laws of the land. Subsidiary legislation are more affiliated with
administrative law take in consideration that they normally set delegated
administrative procedures and actions including but not limited to
disciplinary procedures, dispute resolution procedure, mechanisms, powers
and functions of the enabled authorities while undertaking such actions. It is
for administrative law to check on justification of all actions by the delegates
so as to circumvent ultra-vires and append the delegates to operate intra-
vires in accordance with the delegated powers by the enabling Act of the
parliament and the supreme law of the land. In the case of Jama Yusuph vs.
Minister for Home Affairs (1990) TLR 80 the court noted that;
“….The principle is that if an administrative authority is acting within its jurisdiction, and
no appeal from it is provided by statute, then it is immune from control by a court of law.
But if it exceeds its power, or abuses them so as to exceed them, a court of law can quash its
decision and declare it to be legally invalid.”
In case of ultra-vires (delegates operating beyond the assigned powers)
subsidiary legislation or any abuse of delegated powers may be challenged in
the courts of law as courts have mandated supervisory control over
subsidiary legislation and may nullify such legislation or declare it not
compatible with the enabling Act or unconstitutional where not compatible
with the constitution. In Attorney General and 2 others vs. Aman Walid
47

Kabourou [1996] TLR 156 Nyalali C.J (as he then was) noted;
“The High Court of this country has a supervisory jurisdiction to inquire into the legality
of anything done or made by a public authority and private institutions, and this
jurisdiction power includes the power to inquire into the legality of an official
proclamation by Electoral Commission as it is a subsidiary legislation” [ emphasis
supplied]
4. Delegation and Sub-delegation of Powers
In the case of Huth vs. Clarke [1980] 25 QBD 391 lord Coleridge CJ define
 delegation in the following perspectives;
`….delegation does not imply a denudation of power and authority The word
"delegation" implies that powers are committed to another person or body which is as
a rule always subject to resumption by the power delegating, and many examples of this
might be given. Unless, therefore, it is controlled by statute, the delegating power can at
any time resume its authority.'
In the same line of reasoning Wills J said;
`Delegation, as the word is generally used, does not imply a parting with powers by the
person who grants the delegation, but points rather to the conferring of an authority to do
things which otherwise that person would have to do himself. The best illustration of
the use of the word is afforded by the maxim, Delegates non protest delegate, as to
the meaning of which it is significant that it is dealt with in Broom's Legal Maxims under
the law of contracts: it is never used by the legal writers, so far as I am aware, as implying
that the delegating person parts with his power in such a manner as to denude himself of his
rights.'
It is also noted in the case of Remtulla Gulamani Vs R [1936] T.L.R that the rule
against sub delegation of the subordinate powers is expressed through the Latin
maxim Delegatus non potest delegare meaning a delegate is not competent to
further sub-delegate. On the other hand, in the case of Geraghty vs. Porter [1943]
S.C.R kerwin J noted that;
“At common law the maxim Delegatus non potest delegare is not confined to agencies, a
maxim must be applied as a canon of construction of all supreme powers, and that unless a
power to sub delegate was expressly or by necessary implication conferred in a statute, it should
be declared that the power has been conferred to the delegates.” [Emphasis supplied]
The proper assimilation of the two afore cited cases brings about the common
principle of administrative law which states that; delegation of supreme powers
is always lawfully unless expressly stated by the enabling Act of the parliament,
while sub-delegation of powers is constantly unlawful unless explicit stated by
the enabling Act of the Parliament.
In the first side of the principle, delegation of powers is lawfully based on the
fact that, the modern state activities necessitate the need of
nongovernmental actors in line with the Government activities. The democratic
world have the seen the need to establish other administrative Agencies like
Executive Agencies, Parastatols, Ministerial Departments and Local Government
Authorities to function in line with the elected National Government. This is the
necessary evil for the efficient accountability of the Government to the people
and for the people.
The National or Central Government in Tanzania would not easily guarantee its
accountability to the people without the existence of the Executive Agencies,
Local Government Authorities, Public Corporation and Non-Governmental
Actors. This postulation is justified by Lord Green in Caltona vs. Work
Commissioner (1943) 2 AII E.R 560 where he argues that;
“ ..In the administration of government the functions which are given to ministers are
functions so multifarious that no minister could ever personally attend to them. The duties
imposed upon minister and the powers given to ministers are normally exercised under the
authority of ministers by responsible officials of the department or executive agencies.
Public business could not be carried on if that were not the case.” [Emphasis supplied]
For example, the Ministers in Tanzania have been mandated to establish
executive agencies under the Umbrella of the Executive Agencies Act for the
purpose of improving delivery of service and to create an environment
conducive to efficient and effective management of Government affairs. The 48

executive agencies falls under the executive branch of the Government and include
any Government affiliated authority other the Courts and the Legislature. Such 49

agencies have been vested with subordinate powers to

undertake various administrative actions under the Ministries and the whole
executive at large of which the central Government alone could not efficiently
perform such activities. The executive agencies posses rule making action, rule
decision action and rule application actions which are not absolute, have to be
exercised in line with the enabling Act and the control of the competent
court. Such actions can be construed from the specific Act establishing each
50

and every executive agency. For example for the TFDA it is Tanzania Food and
Drugs Authorities Act,2003 for OSHA it is Occupation Health and Safety Act,
51

2003 for TCRA it is Tanzania Communication Regulatory Authority Act, 2002,

52 53

and for the TRA it is the Tanzania Revenue Authority Act, 2004 revised edition
2006. 54

The necessity for delegation is also seen under Articles 145 & 146 of the
Constitution of the United Republic of Tanzania, 1977 where the Local
Government Authorities are established and mandated to implement
development programmes within the respective areas and to ensure the
enforcement of law and public safety. The powers delegated to the Local
Government Authorities are further enacted for under the Local Government
(District Authorities) Act , the Local Government (Urban
55

Authorities) Act and the Local Government Finances Act which not only
56 57

legislative powers are delegated, but also adjudication, enforcement powers

58

and powers to collect and impose revenue are vested to the Local Government
district and urban authorities in Tanzania. 59

The other side of the principle restricts sub-delegation of powers unless it

expressly stated in the enabling Act. Delegation may be necessary while on the
other hand sub-delegation should not be necessary where the delegate in the
first instance is competent to perform all the delegated powers. There is
likely hood of abuse of powers where the supreme powers are transferred
from the supreme level of authority to another level in a more than two tires
system.
For example, under Article 8 of the Tanzania Constitution, sovereign resides
from the people and the people delegates their powers to the Government
through the Constitution, this is also referred to as Social contract theory.
The Government ought to be very carefully in delegating its authorized powers
from the people including enacting for restrictions or explicit permission for
sub-delegation. Denning LJ in Nelson vs. Braisby [1943] noted that;
“When the legislature wishes to avoid the application of the principle Delegatus non
potest delegare and intends to confer powers to sub delegates, it takes care to do so expressly.”
The rationale behind for the control of delegated powers to form part and parcel
of the training focus in administrative law is because the powers are likely to be
abused by the delegates as when compared to the supreme authority. In agency
contract, the agent is fore lengthily regulated to act on the instructions of the
principal as agreed in the contract.
Yet, this is the same as in administrative law, the delegates are extremely
regulated to act within the sphere of the law and substantiate each procedural
action in accordance with the law, this form part and parcel of the constitutional
principle of the rule of law. A Subsidiary legislation or any other delegated
power inconsistence with the Constitution or enabling Act of the parliament is
open for judicial review and the same may be declared unconstitutional or
null and void to the extent of its inconsistence.
The nullification of the subsidiary legislation takes effect instantly after the rule
of the court while for the principal legislation the court under Article 30(5) and
even under Article 64(5) only direct the Attorney-General to further makes
amendment to the provision inconsistence with the Constitution. This suggests
60

that, the competent court can invalidate the provision or the portion of the Act
of the parliament. Conversely, only the parliament can alter its own enacted
provisions, where the executive wishes not to present the amendment to the
parliament, the Act of the Parliament remains valid till when amended by the
Parliament. It is the accepted principle in administrative law that the
61

parliamentary powers to repeal and amend principal laws can not be delegated
to the courts or any other administrative body. Laurence Tribe contends that;
“…thus the courts have no real power to repeal or abolish a statute..and..notwithstanding
a decision holding it unconstitutional a statute continues to remain on the statute books..”
This perception is also cemented in the case of Julius Ishengoma Francis
Ndyanabo vs. A.G where the Court of Appeal found that it is not within the
63

competence of the Court or any other court for that matter to amend the statute
if it finds it unconstitutional. Even where a court may see exactly what is
64

missing in a statute book, it is institutionally with no means to add the same

therein, to see what is missing and to have the means of inserting it in the statute
book are two different things. The means of inserting or amending the statute
65

is vested to the legislature, Salmond Contends that, a statute enacted by the

parliament is not open for judicial review and can not be declared ultra-vires or
unconstitutional by the court of law. However, what is set for under Article
66

64(5) should not be interpreted in any how that the court may supersede the
sovereign enactment of the parliament, the power to amend and repeal the an
Act of the parliament remains to be an exclusive powers of the Parliament.

5. Case Law Development on Administrative Law

Apart from the constitution and written laws, administrative law is further put
into motion by case laws which may either be influenced by individual
initiatives, strategic litigation, and judicial activism. There a number of
precedence existing in Tanzania which can not be put in description by this part
but the digest of cases on administrative law in Tanzania by the great late B.D
Chipeta is highly appreciated as a good source book and digest for the cases in
administrative law Tanzania.
Moreover, the esteemed book by C.P Maina titled Human rights in Tanzania,
selected cases and materials form part and parcel of the appreciated digest on
the cases pertaining to human rights, Constitutional and administrative law in
Tanzania. Above all, the law reports in Tanzania including Law Reports of
68

Tanganyika, Tanzania Law Reports, Tanzania High Court Digest, the East African
Law Reports and East African Court of Appeal Reports should be taken into
consideration in the hierarchy of the sources administrative law in Tanzania;
it is from these authoritative reports where the proactive interpretation of
the administrative law provisions can be extracted from. Conscientious learned
brothers and sisters stands not only on the position of the laws but also
pertinent decided cases on administrative law in Tanzania and those in
common law jurisdictions. The development of administrative law finds the
69

way not only from strategic litigations but also in judicial activism where the
judges interpret the provisions of the law to safeguard the vulnerable section
of the society and for the public interest at large.
6. APPENDIX I
ADMINISTRATIVE LAW VERSUS CONSTITUTIONAL LAW

ADMINISTRATIVE LAW
The constitution is the superlative law of the state of which all other laws of
the land are subject to it

Primarily concerned with the excise of powers by administrative bodies or

executive agencies actions

Establishes the general rights including basic human rights and duties

Derive the authoritative principles from the constitutional law like separation
of powers, independence of the judiciary, natural justice and reasonableness of
administrative actions

CONSTITUTIONAL LAW
Administrative law, rules and regulations are subject to the constitution. where
administrative law is inconsistence with the Constitution, the former will easily
be declared unconstitutional
Establishes the supreme powers of the states, the executive, judiciary and the
parliament and set general principles for the operations
Set the mechanism and procedures on how the rights are to be administered
both at the supreme level and by the delegated authorities
Lays the foundation for administrative law principles of natural justice.
Generally, both regulate the powers of the legislature, executive and the
judiciary, the operation of the supreme powers of the state depends on the
constitution; and administrative law draws the equilibrium on the exercise of
powers. The laws complement each other, thus there is no an easy application of
constitutional law without administrative law and vice-versa.
7. APPENDIX II
GENERAL PRINCIPLES IN MAKING SUBSIDIARY LEGISLATION

PRINCIPLE

The Enabling Act Principle

The Conformity/Compliance Principle
Section 36&37 of the Interpretation of Laws Act, 2002
Intra-Vires Principle
Section 36&37 of the Interpretation of Laws Act, 2002

BRIEF NOTES
Under the provision of section 4 of the Interpretation of laws Act, Subsidiary legislation
ought to be made under the Act of the Parliament or other lawfully authority. The Act of the
Parliament necessitating Subsidiary legislation is known as the Enabling Act which must
expressly states the powers to make subsidiary legislation.
The following expression have been used by the Tanzania Parliament to delegate legislative
powers;
i. The Minister may make regulations necessary
or expedient to achieve the objects of this Act ii. The Minister may make regulations with
regard to any matter that is governed by this Act.
iii. The Minister may make regulations regarding all matters which this Act are required
or
permitted to be prescribed by the Minister.
The Authority to make Subsidiary legislation must operate in compliance with the enabling Act
of the Parliament as;
a) To what is to be legislated to by the subsidiary legislation in terms of
substantive and procedural content
b) Who has been expressly empowered to make subsidiary legislation
c) There any room for sub delegation The making Authority is said to be intra-vires
where the making procedures are consistence with the Enabling Act or otherwise the
subsidiary legislation may be challenged for the procedural Ultra-vires.
The principle of intra-vires take into consideration the two maxims;
i. Delegata potestas non potest delegari
(a delegated authority can not delegate ii. Delegatus non potest delegare
(a delegate/Deputy can not appoint another/sub- delegate