The Summation of Lectures On Administrat PDF

THE SUMMATION OF LECTURES
ON ADMINISTRATIVE LAW I
This Paper provides for the Summation of Lectures on Administrative Law

I delivered to SAUT LL.B III Candidates 2014/2015 and reviewed
2015/2016.
The summation is discussed in relation to the Sources of Administrative
Law in Tanzania. The comprehension of the Legal Sources of the law is the
vital step for every lawyer in learning and practicing process to overcome
quarrels in Administrative Law. This summation should only be a companion;
candidates are extremely advised to consult other Manuals, Case laws and
Texts Books on Administrative Law.
Prepared by
KATABARO, Jackson
Assistant Lecturer, Public Laws, SAUT-School of Law
jkatabaro@gmail.com © 2014/2015
©jkatabaro@gmail.ocm
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
2 Prepared by KATABARO, Jackson ; LL.M-Taxation (UDSM), LL.B (SAUT)

Draft Lectures on Administrative Law I/ 2014/2015 as reviewed 2015/2016
COVERED TOPICS
TOPIC PERTINENT LEGISLATION/INSTRUMENTS
1 Nature and Scope of Administrative Law a) The Constitution of the United Republic
- Defining Administrative law of Tanzania,1977 as amended 2005
- Sources of Administrative law b) The Proposed Constitution of the United
- Growth of Administrative law Republic of Tanzania, 2014
c) The Interpretation of Laws Act
- The Executive Agencies
[CAP 1 R.E 2002]
- Classification of Administrative The Judicature and Application of Laws
Functions/Actions Act [CAP 358 R.E 2002]
d) The Executive Agencies Act
[ CAP 245 R.E 2002]
e) The Executive Agencies (Amendments)
Act No 13 of 2009
a) The Constitution of the United Republic
of Tanzania,1977 as amended 2005
The Pillars of the State b) The Proposed Constitution of the United
2 - The Executive
Republic of Tanzania, 2014
c) The Judiciary Administration Act No 4 of
- The Parliament 2011
d) The Kenyan Judicial Service Act No 1 of
- The Judiciary
2011
e) The Regional Administration Act
[ CAP 97 R.E 2002 ]
Basic Constitutional Principles f) The Judges (Remuneration and Terminal
Benefits) Act No 16 of 2007
- Separation of Powers
g) The Parliamentary Immunities, Powers
- Independence of the Judiciary and Privileges Act, 1988 as amended
2004
- Rule of Law
h) The United Nations Basic Principles on
- Parliamentary Supremacy the Independence of the Judiciary, 1985
i) The International Covenant on Civil and
- Supremacy of the Constitution
Political Rights, 1966
- Respect of Human Rights j) The African Charter on Human and
Peoples Rights, 1986
- Sovereign of the People
k) The Code of Conduct for the Judicial
officers in Tanzania, 1984
l) The Bangalore Principles of Judicial
Conduct, 2002
of Tanzania, 1977 as amended 2005
3 Principles/Rules of Natural Justice b) The Proposed Constitution of the United
- The Right to be heard
c) The Constitution of the Republic of
- The Right against bias Kenya, 2010
d) The Universal Declaration of Human
- Reasons for the Decision
Rights, 1948
e) The International Covenant on Civil and
Political Rights, 1966
3 KATABARO, Jackson, Summation of Lectures on Administrative Law


Delegated Legislation of Tanzania, 1977 as amended 2005
4 - The meaning of Legislation b) The Proposed Constitution of the United
- Principal and Subsidiary Legislation Republic of Tanzania, 2014
- Rationale behind delegated c) The Interpretation of Laws Act
legislation [ [CAP 1 R.E 2002]
- Principles of subsidiary legislation d) The Local Government (District
- Legislative Powers of the Local Authorities) Act [CAP 287 R.E 2002]
Government Authorities e) The Local Government (Urban
Authorities) Act [CAP 288 R.E 2002]
- Procedural requirement f) The Regional Administration Act
- Substantive requirement [ CAP 97 R.E 2002 ]
- Control of subsidiary legislation g) The Local Government Laws
(Miscellaneous Amendments) Act No 13
- Parliamentary control
of 2006
- Judicial Control h) The Parliament Standing Orders, 2003

Further Readings
Alder J (2005), Constitutional and Administrative Law, 5th edition, Palgrave Macmillan
Law Masters
B.D Chipeta (2009), Administrative Law in Tanzania, A digest of Cases, Mkuki na
Nyota Publishers
C.J Mashamba (2010), Judicial Protection of Civil and Political Rights in Tanzania,
Cases Materials and Commentary, (nola).
C.K. Takwan (2012), Lectures on Administrative Law, 5 th edition, Eastern Book
Company
F. Mirindo (2011), Administration of Justice in Mainland Tanzania, Law Africa
H.R.W wade & C.F Forsyth (2005) Administrative Law, 9th edition Oxford University
Press
I.G. Shivji &I.H. Majamaba (et al) (2004) Constitutional and Legal System of Tanzania,
Mkuki na Nyota Publishers.
I. Shivji & H. Majamba (ed) (2011), Rule of Law vs. Rulers of Law, Mkuki na Nyota
Publishers.
I.P. Massey, (2005), Administrative Law, 6th edition
M.M.D Warioba (1999), Management of Local Government in Tanzania, Research,
Information and Publication Department, Mzumbe
Peter .C.M. & Bisimba H.K (ed), (2007) Law and Justice in Tanzania, Quarter of a
Century of The Court of Appeal, Mkuki na Nyota Publishers
Peter .C.M. (1997), Human Rights in Tanzania, Selected Cases and Materials, Rudiger
Koppe Verlag. Koln
P.Oluyade (1981), Administrative Law in East Africa
Schwartz Bernard (1976), Administrative law, Toronto, little Brown and Co Ltd
Salmond on Jurisprudence, 12th edition, Universal Law Publishing Co. Ltd
Turpin Collin (1999) British Constitution Government and the Constitution, Texts,
Cases and Materials, 4th edition, Butterworths
Tordoff .W (1967), Government and Politics in Tanzania, Eats African Publishing
V.D. Mahajan (1987), Jurisprudence and Legal Theory, Eastern Book Company

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 can not 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.
1 th
See, Salmond on Jurisprudence, 12 edition Universal Law Publishing, at chapter 3
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.
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.3 Dr Mahajan argues that,
for the proper articulation of administrative law the understanding of
classification or branches of law is of at most importance.
2
See, N.K. Jaykumar (2005), Administrative Law at pp 1-5
3
Ibidem
Thus, administrative law falls under the National law particularly under the
category of Public law.4 Public law is further divided into three categories
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. 6 This
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;
4
V.D Mahajan(1987), Jurisprudence and Legal Theory, Eastern Book Company at pp 95
5
Ibidem
6
Shivji I.G & I.H. Majamba (et al) (2004), Constitutional and Legal System of Tanzania, at 27-28
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 8th edition, 2004 at page 137, defines
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.8
The Pertinent Legal Sources of Administrative Law
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
7
See, Schwartz Bernard (1976), Administrative law, Toronto, little Brown and Co Ltd
8
See, C.M. Peter (1990), Human Rights in Africa; A comparative Study of the African Human and
Peoples Rights and the New Tanzania Bill of Rights
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 endeavor
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
9
See, Articles, 4, 8, 13, 107A & 107B,
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;
10
Misc. Civil Cause No 24 of 2013
“…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
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.12 Nonetheless, in the case of O’Reily vs.
Macmann [1983] 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;
11
Also see, Oshilack vs. Richmond River Council (1997) 152 ALR 83; Rev. Christopher Mtikila vs.
Attorney General (1995) TLR 31, Brown vs. Board of Education 347 U.S.483 (1954) and
Saed Kubenea vs. AG Misc Civil Cause No 28 of 2014
12
See, Abbott vs. Sullivan (1952) 1.K.B.189
“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,13 TFDA,14 OSHA,15 TRA16 and other private
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.17 Under the 2014 proposed Constitution of the United
Republic of Tanzania, the right to be heard has been expounded to include
the right to be heard for the accused and detained persons.18
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.
13
Business Registration and Licensing Agency (BRELA)
14
Tanzania Food and Drugs Authority (TFDA)
15
Occupational Health and Safety (OSHA)
16
Tanzania Revenue Authority (TRA)
17
See, Simeone Manyaki Vs. The Institute of Finance Management 1984 T.L.R 3024 (HC)
18
See Articles 48 & 49 of the Proposed Constitution of the United Republic of Tanzania, 2014
See, Articles 47-51 of the Constitution of Kenya, 2010
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.20 In fact, the existence of only aud alteram paterm
in the 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
19
See, Metropolitan Properties Co. (F.G.C) Ltd vs. Lanon (1969) 1 QB 577 at 599
20
See, C.M. Peter (1997) Human Rights in Tanzania at chapter fourteen pp 427-436
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, 21 but
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;22
“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
21
See, Article 107A of the Constitution of the United Republic of Tanzania, 1977 as amended 2005
22
R vs. Chancellor of the University of Cambridge (1723)
them anymore,23 even in absence of Article 13(6) (a) that was in the eon
prior to 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 Council24 where in 1961 the Court of
Appeal for Eaten African 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
23
Articles 26(2) &30 (3) of The Tanzania Constitution safeguards among others, fair hearing.
24
[1961] E.A 377 (Tanganyika)
25
Also see, Re Application by Bukoba Gymkhana Club[ 1963] E.A 478 , Tanganyika
James F. Gwagilo v. Attorney –General, High Court of Tanzania Dodoma, Civil Cause No 23 of 1993
Mahona vs. University of Dar es Salaam [1981] T.L.R 55
Patman Garments Industries Ltd vs. Tanzania Manufacturers Ltd [1981] T.L.R 303
Amir Hamza Umar and 3 others v. Minister for Local Government, C-operatives and Marketing, High
Court of Tanzania at Mwanza Misc Civil Cause No 9 of 1989
Khasim Hamisi Manywele v. Republic, High Court of Tanzania at Dodoma, Crim, Appeal No 39/1990
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.”
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] 28
It should be noted that, even though the constitutional principle of
separation of powers is not pertinent in administrative law, yet
26
See. I.G Shivji & H.I. Majamba (et all) (2002) Constitutional and Legal System in Tanzania at Chapter 6
27
See, Attorney General Vs. Lohay Akonay & Joseph Lohay [ 1995] TLR 80
28
Also See, Article 5A of the Constitution of Zanzibar, 1984
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
29 th
See, H.W.R Wade & C.F Forsyth (2005) Administrative Law, 9 edition Oxford University Press
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. 30
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, 201131 where
disciplinary 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.32 Above all, the Regional and
District Commissioners are the appointing authorities of two other
members in respect of their committees.33
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.
30
See, Nyalali CJ in Attorney General Vs. Lohay Akonay & Joseph Lohay [ 1995] TLR 80
31
See, Act No 4 of 2011
32
See, Sections 50(a)&(c) and 51(a)&(b) of the Judiciary Administration Act No 4 of 2011
33
See, Section 50(d)&51(d) of the Judiciary Administration Act No 4 of 2011
They form part and parcel of the central Government. 34 Both District and
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.35 As against inclusion of
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
34
See, sections 4,12,13 and 16 of the Regional Administration Act, 2002 as amended 2006
35
See, Section 50(d)&51(d) of the Judiciary Administration Act No 4 of 2011
36
See, Criminal Rev. No 1 of 1979
Act,37 under which the theme of the whole Act seems to be of political
operation. The association of such function with the judiciary will easily
destabilize the praised constitutional principle of the independence of the
judiciary.38
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.40 May he
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
37
See, Cap 97 of the Revised laws of Tanzania
38
See, Articles 107A, 107B, 109, 110, 112, 113& 113A of the Tanzania Constitution, 1977
See, Articles 169, 175-181, 186-192, 194-197, 200-207 of the Proposed Constitution of the United
39
See, Article 66 (3) of the Constitution of the United Republic of Tanzania, 1977 as amended 2005
40
For the critical discussion of Separation of powers see, Articles 4, 62(1)&(2), 66, 55(4), 66(3), Ibidem
the Judicial Service Commission and subject to the approval of the National
Assembly.41
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.
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.42 The definition
Section 4 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.
41
See, Articles 166-173 of the Constitution of the Republic of Kenya, 2010
See, Section 32-33 of the Judiciary Service Act No 1 of 2011
42
See, Cap 358 of the laws of Tanzania
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.
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.
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
43 th
See, Salmond on Jurisprudence, 12 edition Universal Law Publishing, at pp 20
Constitution.44 The parliament enact principal and make subsidiary
legislation while all other persons, Government departments, ministers,
public corporations and executive agencies under Article 97(5) of the
Constitution make only subsidiary legislation.45 This principle is
emphasized by the 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.46 It is the sole role of administrative law to ensure
that 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
44
See, Chapter eight and Nine of the Parliament Standing Orders, April, 2013
45
See, Article 64 and 89 (1) of the Constitution of the United Republic of Tanzania 1977
46
See, Section 4 of the Interpretation of Laws Act, Cap 1 of the Revised laws of Tanzania
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.47 In Attorney General and 2 others vs. Aman Walid
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]
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;
47 th
C.K Takwan (2012), Lectures on Administrative Law 5 edition at pp 117
`….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 non-
governmental 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.48
The executive agencies falls under the executive branch of the Government
and include any Government affiliated authority other the Courts and the
Legislature.49 Such agencies have been vested with subordinate powers to
48
See, Section 3 & 4 of the Executive Agencies Act, 2002
49
Examples of Executive Agencies include but not limited to Tanzania Roads Agency (TANROADS),
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.50 Such actions can be construed from the
specific Act establishing each and every executive agency. For example for
the TFDA it is Tanzania Food and Drugs Authorities Act,200351 for OSHA it
is Occupation Health and Safety Act, 2003 52 for TCRA it is Tanzania
Communication Regulatory Authority Act, 2002,53 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) Act55, the Local Government (Urban
Authorities) Act56 and the Local Government Finances Act57 which not only
Business Registration and Licensing Agency (BRELA), Occupation Safety and Health Agency (OSHA),
Tanzania Airport Authority (TAA), Tanzania Civil Authority (TCAA), Tanzania Food and Drugs
Authority (TFDA), Tanzania Revenue Authority (TRA), Public Procurement Regulatory Authority
(PPRA) .
50
Chief Settlement Commr vs. Om Prakesh AIR 1969 SC 33, 36; (1968)
51
See sections, 44, 68,99 of the TFDA Act No 1of 2003
52
See, Sections, Part II, IX of the OSHA Act No 5 of 2003
53
See, Part III, Part VI, Part VI, VIII TCRA No 12, 2003
54
See, sections 6 and 38 of the TRA Act, 2004 revised edition 2006
55
Cap 287 of the Revised laws of Tanzania
56
Cap 288 of the Revised laws of Tanzania
57
Cap 290 of the of the laws of Tanzania
legislative powers are delegated,58 but also adjudication, enforcement
powers 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.
58
See, Part VI (Sections 152-172) of the Local Government (District Authorities) Act Cap 287
See, Part VI (Section 88-97) of the Local Government (Urban Authorities) Act Cap 288
59
Also see, The Local Government Laws (Miscellaneous Amendments) Act No 13 of 2006
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.60 This suggests 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.61 It is the
accepted principle in administrative law that the parliamentary powers to
repeal and amend principal laws can not be delegated to the courts or any
other administrative body. Laurence Tribe contends that;62
“…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..”
60
See, C.K Takwan, Lectures on Administrative Law 5th edition at pp 65-66
Also Se, Article 30 (5) of the Constitution of the United Republic of Tanzania, 1977
61
See, Republic Vs Costa R. Mahalu & Grace Alfred Martin, Economic Criminal Case No 1 of 2007
(unreported)
62 nd
See, Tribe L.H (1998), American Constitutional Law, 2 edition , The foundation Law Press
This perception is also cemented in the case of Julius Ishengoma Francis
Ndyanabo vs. A.G63 where the Court of Appeal found that it is not within the
competence of the Court or any other court for that matter to amend the
statute if it finds it unconstitutional.64 Even where a court may see exactly
what is 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.65 The means of inserting or
amending the statute 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.66
However, what is set for under Article 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.67
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.
63
Court of Appeal of Tanzania at Dar es Salaam, Civil Case No 64 of 2001
64
Also see, A.A Sisya & 35 others vs. Principal Secretary Ministry of Finance and Another, High Court of
Tanzania at Dodoma Civil case No 5 of 1994; Judge In charge-High Court of Tanzania at Arusha and
A.G vs. N.I.N Munuo Ngun’ni Court of Appeal of Tanzania Civil Appeal No 45 of 1998
65
See, Lord Simon’s in I.R.C vs. Ayashire I.A (1946) ALL ER 637, 641
66 th
See, Salmond on Jurisprudence 17 edition
67 th
See, C.K Takwan, Lectures on Administrative Law 5 edition at pp 65-66
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.68 Above all, the law reports in
Tanzania including Law Reports of 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.69 The development of administrative law finds
the 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.
68
Also see, H.K. Bisimba & C.M. Peter, Justice and Rule of law in Tanzania, Selected Judgments and
Writings of Justice James L. Mwalusanya and Commentaries; Legal and Human Rights Promotion;
December, 2005
69
See, Section 2(3) of the Judicature and Application of Laws Act [CAP 358 R.E 2002 ]
THE LIST OF PROMINENT REFERRED CASES
1. Legal and Human Rights Centre and Tanganyika Law Society vs. Honorable Mizengo
Pinda & AG, Misc Civil Cause No 24 of 2003
2. Saed Kubenea vs. A.G, Misc Civil Cause No 28 of 2014
3. AG vs. Rev Christopher Mtikila, Civil Appeal No 45 of 2009
4. AG & 2 others vs. Aman Walid Kabourou [1996] T.L.R 156
5. Mbeya Rukwa Auto Parts & Transport Limited vs. Jestina George Mwakyoma Civil Appeal
No 45 of 2002
6. Mahona vs. University of Dar es Salaam [1981] T.L.R 55
7. Kukutia Ole Pumbun and Another vs. A.G (1993) T.L.R 159
8. Attorney General vs. Lohay Akonay & Joseph Lohay [1995] TLR 80
9. Patman Garments Industries Ltd vs. Tanzania Manufacturers Ltd [1981] T.L.R 303
10. Remtulla Gulaman vs. R [1936] T.L.R
11. Republic vs. Idd Mtengule Crim. Rev No 1 of 1979
12. Simeone Manyanki vs. Executive Committee and IFM, Civil cause No 42 of 1982
13. Mhidin Ahmad Ndolanga & Others vs. National Sport Council & Another (1966) T.L.R 325
14. Ally Likakwa vs. Regional Prisons Officer Arusha HC at Arusha, Misc Criminal Cause No
29 of 1979
15. DPP vs. Arbogast Rugaimkamu (High Court of Tanzania, 1982 T.L.R 139
16. DPP vs. S.I Tesha & R. Tesha [ 1993] T.L.R 237
17. DPP vs. Daud Pete [ 1993] T.L.R 22
18. Felix Bushaija & Another vs. The Institute of Development Management-Mzumbe &
Another HC of Tanzania at Dar es Salaam, Misc Case No. 9 of 1991
19. Almasi Kalumbeta vs. Republic (High Court of Tanzania 1982, T.L.R 139
20. Tanganyika Electric Supply Company vs. Ahmed Omar (High Court of Tanzania 1965, E.A
29
21. De Souza vs. Tanga Town Council (1961) E.A 377
22. Sadiki Athumani vs. Republic (1986) T.L.R
23. BAWATA & 5others vs. Registrar of Societies Misc, Civil, Cause No 27 of 1997
24. OTTU vs. A.G & Another Civil Cause No 53 of 1994 HC at DSM
25. Mwanza Restaurant vs. Mwanza Municipal Director Misc, Civil Cause No 3 of 1987 HC at
Mwanza
26. A.A. Sisya & 35 others vs. Principal Secretary Ministry of Finance and Another, High
Court of Tanzania at Dodoma Civil Case No 5 of 1994
27. The Judge in charge-High Court of Tanzania at Arusha and A.G vs. N.I.N Munuo Ngu’ni
Court of Appeal of Tanzania Civil Appeal No 45 of 1998.
28. Aboot vs. Sullivan (1952) 1KB 189
29. Dupport Steels Ltd vs. Sirs [1980] 1 WLR 142 HK
30. Marbury vs. Madison ( 1803) 5 US 137
31. Sirrose vs. Moore (1974) 3 AER 776
32. Nelson vs. Braisby [ 1943]
33. R vs. Chancellor of the University of Cambridge (1723)
34. Metropolitan Properties Co. (F.G.C) Ltd vs. Lanon (1969) 1QB 577
35. Errington vs. Minister of Health (1935) 1 kb 249

APPENDIX I
ADMINISTRATIVE LAW VERSUS CONSTITUTIONAL LAW
ADMINISTRATIVE LAW CONSTITUTIONAL LAW

The constitution is the superlative law of Administrative law, rules and regulations
the state of which all other laws of the are subject to the constitution. where
land are subject to it administrative law is inconsistence with
the Constitution, the former will easily
be declared unconstitutional
Primarily concerned with the excise of Establishes the supreme powers of the
powers by administrative bodies or states, the executive, judiciary and the
executive agencies actions parliament and set general principles for
the operations
Establishes the general rights including Set the mechanism and procedures on
basic human rights and duties how the rights are to be administered
both at the supreme level and by the
delegated authorities
Derive the authoritative principles from Lays the foundation for administrative
the constitutional law like separation of law principles of natural justice.
powers, independence of the judiciary,
natural justice and reasonableness of
administrative actions
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.

APPENDIX II
GENERAL PRINCIPLES IN MAKING SUBSIDIARY LEGISLATION
PRINCIPLE BRIEF NOTES

Under the provision of section 4 of the
The Enabling Act Principle 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

The Conformity/Compliance Principle operate in compliance with the enabling Act of the
Section 36&37 of the Interpretation of Laws Act, Parliament as;
2002 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
Intra-Vires Principle where the making procedures are consistence with
Section 36&37 of the Interpretation of Laws Act, the Enabling Act or otherwise the subsidiary
2002 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

APPENDIX III
TUTORIAL QUESTIONS
1. Even though the nation is celebrating the Constitution making process,

administratively, practicability of Article 8 of the Constitution of the
United Republic of Tanzania, 1977 as amended 2005 is still
questionable.” Argue for or against this notion.
2. Make a comprehensively comparison on the rules of natural justice as

enacted in The Constitution of Kenya, 2010 and that of Tanzania 1977.
What are the lessons to be learned from Kenya?
3. With the aid of scholars and at least five case laws, explore the control
of subordinate legislation in common law Jurisdiction
4. Discuss the trend of Judicial Activism and Strategic litigations in

protecting Constitutional Administrative and Human rights law in
Tanzania.
5. Administrative laws, rules and regulations ought to be the product of

the ruled and not the rulers.” Anonymous. Argue for or against this
statement
6. Article 97(5) of the Constitution of the United Republic of Tanzania,

1977 as amended 2005 is subordinate to Article 64 of the same
Constitution; in fact the two Articles are not drafted by mistake. In your
opinion, what was the rationale behind the presence of these Articles in
the Constitution?
7. The test of the rule against bias seems to be open ended as it is tested
from the right minded people and not the court. To what extent do you
agree with Lord Dening Jurisprudence in Metropolitan Properties Co.
(F.G.C) Ltd vs. Lanon (1969) 1QB 577 at 599
8. Make a legal analysis of any four statutory executive agencies of your
choice pertaining to legislative, executive, judicial and quas judicial

powers they enjoy in running day to day activities of the Tanzania
government.

9. Delegated legislation may be challenged under the supremacy of the

enabling Act of the parliament and the supremacy of the constitution
and declared void while principal legislation even if challenged remains
valid until parliamentary amendment process. With aid of at least five
decided cases, Discuss.
10. Administrative actions/powers of executive agencies in the United

Republic of Tanzania by and large discredit the provision of Article 4(1),
(2), (3) & (4) of the Constitution of the United Republic of Tanzania,
1977 as amended 2005. Argue for or against this legal theme.
11. The paradigms in defining rule of law have never been resolved. There
are certain accepted elements of rule of law but contentious
requirements of the rule of law. With the aid of legal scholars, discuss.
12. Lord Green in Caltona vs. Work Commissioner (1943) 2 All ER 560
argues;
“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 ministers and the powers given to
ministers are normally exercised under the authority of Ministers by responsible
Departments or agency. Public business could not be carried on if that were not
the case”
In line with this administrative law jurisprudence and with examples,
explore the role of executive agencies in Tanzania.
13. The Constitutional rules of dispensation of justice take a wider

consideration of the rules of natural justice. Explore the relationship
between the said rules of dispensation of justice and the rules of natural
justice in Tanzania.
14. The doctrine of separation of powers is a mere literally concept not a

reality in any Government structure particularly in Africa. Critically
explore this doctrine in Tanzania.
15. Discuss the development and attributes of the aud alterem partem from
1977 Constitution to 2014 proposed Constitution of the United Republic
of Tanzania.

16. “Delegates non potest delegare and Delegata potestas non potest delegari
form the two sides of the same coin in control of subordinate
legislation.” Discuss.
17. With the aid of Saed Kubenea Vs Attorney General Misc. Civil Cause
No 28 of 2014 and Legal and Human Right Centre and Tanganyika
Law Society Vs Hon Mizengo Pinda and Attorney General Misc. Civil
Cause No 24 of 2013 .Discuss the role of Strategic litigation in
advancing Constitutional and administrative law in Tanzania. In your
own opinion, is there any component of Judicial activism in advancing
Constitutional and Administrative law in Tanzania?
18. Discuss how the Parliamentary Immunities, Powers and Privileges Act,
1988 as amended 2002&2004 exorcises the powers of the Executive and
the Judiciary to encourage separation of powers in Tanzania.
19. With the aid of scholars and at least five case laws, explore the control
of subordinate legislation in common law Jurisdiction
20. The general requirements of publications in enacting principal

legislation and making subsidiary legislation call upon the public to
adduce more favorable inputs to the proposed legislation.
a) In what circumstance the requirement of publication may be
ignored in enactment of principal legislation? In your own opinion
what are the associated impacts?
b) Is there a possibility for the authority making subsidiary legislation
to forego the rules of publications?

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THE SUMMATION OF LECTURES

This Paper provides for the Summation of Lectures on Administrative Law

2 Prepared by KATABARO, Jackson ; LL.M-Taxation (UDSM), LL.B (SAUT)

3 KATABARO, Jackson, Summation of Lectures on Administrative Law

a) The Constitution of the United Republic

4 Prepared by KATABARO, Jackson ; LL.M-Taxation (UDSM), LL.B (SAUT)

5 KATABARO, Jackson, Summation of Lectures on Administrative Law

laws governing National or International legal system or a particular

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

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

administrative law, following by the pertinent legal sources of

administrative law including Constitution and its supremacy feature,

written laws including principal and subsidiary legislation.

Defining Administrative Law

Administrative law as the name suggests, is the law relating to

administration. However, describing administrative law in such context, it

defining administrative law would therefore be to say administrative law is

the law relating to control of government power. Every government wields

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

of the organs of administration; the methods and procedures followed by

for the proper articulation of administrative law the understanding of

classification or branches of law is of at most importance.

which include Constitutional law, Administrative law and Criminal law.

and functions of the organizations of administration, the limits of their

to persons whose rights have been infringed.5

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

esteemed book defines Administrative law in contrast with Constitutional

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

laws and regulations administrators owe a legal duty to faithfully

implement and the Citizens to whom administrators owe legally correct

procedural and substantive action.

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

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

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 exercise the delegated

interpretation and application actions.

9 KATABARO, Jackson, Summation of Lectures on Administrative Law

The Scope of Administrative law