The Independence of Judiciary in Tanzani

INDEPENDENCE OF JUDICIARY AND ADMINISTRATION OF JUSTICE IN
TANZANIA: A CRITICAL ASSESSMENT OF ITS INTERPRETATION AND

PRACTICAL APPLICATION BY THE COURTS IN TANZANIA.
BY
ASHERRY MAGALLA
EMMANUEL ROBERT
SUPERVISOR:
ADRIAN NDUNGURU
A RESEARCH THESIS SUBMITTED IN PARTIAL FULFILLMENT OF ACADEMIC

REQUIREMENT FOR THE AWARD OF BACHELOR OF LAWS (LL.B)
AT TUMAINI UNIVERSITY IRINGA UNIVERSITY COLLEGE
i
INDEPENDENCE OF JUDICIARY AND ADMINISTRATION OF JUSTICE IN
TANZANIA: A CRITICAL ASSESSMENT OF ITS INTERPRETATION AND
PRACTICAL APPLICATION BY THE COURTS IN TANZANIA.
[CASE STUDY: TANZANIA MAINLAND]
BY
ASHERRY MAGALLA
EMMANUEL ROBERT
SUPERVISOR:
ADRIAN NDUNGURU (Mr.)
A RESEARCH THESIS SUBMITTED IN PARTIAL FULFILLMENT OF ACADEMIC

REQUIREMENT FOR THE AWARD OF BACHELOR OF LAWS (LL.B)
AT TUMAINI UNIVERSITY IRINGA UNIVERSITY COLLEGE
TUMAINI UNIVERSITY
IRINGA UNIVERSITY COLLEGE
ii
2012.
DECLARATION
We, Asherry Magalla and Emmanuel Robert, declare that this research is our own work and
that it has not been presented and will not be presented to any other University for a similar or
any other degree award.
1. NAME: ……………………………… SIGNATURE:……………………..
THIS ……………..DAY OF………….2012
2. NAME: ……………………………… SIGNATURE:……………………..
THIS ……………..DAY OF………….2012
iii
CERTIFICATION
The undersigned certifies that he has read and hereby recommended for acceptance by the
University of Tumaini-Iringa College a research paper entitled: Independence of Judiciary and
Administration of Justice in Tanzania: A critical Assessment of its Interpretation and Practical
Application by the Courts in Tanzania. In fulfillment of the requirements for the degree of
Bachelor of Laws (LL.B) of Tumaini University at Iringa.
SIGNATURE………………..THIS………DAY OF……2012.
………………………………
ADRIAN NDUNGURU (Mr.)
(SUPERVISOR)
iv
COPYRIGHT
© Tumaini University-Iringa 2012.
This dissertation is copyright material protected under the Berne Convention; the Tanzania
Copyright and Neighbouring Act of 1999, and other international and national enactments, in
behalf, on intellectual property. It may not be reproduced by any means, in full or in part, except
for short extracts in fair dealing, for research or private study, critical scholarly review or
disclosure with an acknowledgement, without permission of the Dean, Faculty of Law, on behalf
of both the author and the Tumaini University, Iringa University College.
v
DEDICATION
To
Mr. and Mrs. Magalla and Family
And
Mr. and Mrs. Robert Noel Mandawa and Family
vi
ACKNOWLEDGEMENT
The completion of this research paper was not possible without the aid, assistance and not
forgetting the encouragements of several individuals. First and foremost we would like to the
thank The Almighty God for giving us the strength, health and ability to take part in studying the
bachelor of laws here at Tumaini and complete this research. Second we would like to thank our
parents and guardians for their parental, moral and financial support that enabled us to complete
our studies and this research.
We would also like to thank our supervisor Mr. Adrian Ndunguru for his extremely wonderful
guidance and supervision in the successful completion of this work by dedicated much of his
time and efforts in perfect this research. We also would like to thank the lecturers of the Faculty
of Law here at Tumaini University Iringa for their support and encouragement. We thank you all
very much.
We would also like to thank our learned brothers and sisters Henry Mwinuka, Salma Majock,
Zamaradi Johannes, Hamza Jabir, Irene Mlowe, Nuru Pipino, Ester Shoo, Mwema Bungallah,
Musa Mlawa, Timothy Maeda and all others whom we could not finish mentioning them for
their encouragement and support that resulted into the successful completion of this research.
Lastly, our gratitude extends to the legal practitioners who agreed to spare their time and allow
us to have an interview with them such as R.T. CJ, Augustino Ramadhani, Hon. Magistrate
Singano, Advocate Francis Ramadhani and Advocate Magalla and Janet Mandawa.
vii
May God Bless You All!
ABSTRACT
The purpose of this study was to examine and assess the applicability, interpretation, and
implementation, of the doctrine of independence of judiciary in the promoting administration of
justice in Tanzania. As the law requires once a dispute arise within the society it must be brought
before the court for determination of the guilty party and innocent party. For that reason and for
the purpose of justice in determination of a dispute, relevant and genuine evidence must be
established in order to provide full information to the court and to determine the guilty party.
However, this fact is undermining the independence of judiciary by the interference of the court
system by the other two organs of the state, meaning the Legislature and the Executive Organs of
the state.
This research is mainly focused on the topic, “Independence of Judiciary and Administration of
Justice in Tanzania: A Critical Assessment of its Interpretation and Practical Application by the
Courts in Tanzania”, hence research will be divided in four main chapters.
Chapter One which will discuss the background of the problem, the statement of the problem, the
aims and objectives, research methodology and significance of this study. The focus of Chapter
Two will be on the Overview of the doctrine of independence of judiciary in Tanzania. Hence,
this chapter will provide for the definition of the doctrine of independence of judiciary, discuss
the laws governing the doctrine in Tanzania, the rationale of the doctrine in the administration of
justice in Tanzania, advantages of the doctrine and finally the conclusion.
viii
In Chapter Three there will be a discussion on assessment on the interpretation and application of
the doctrine of independence of judiciary in Tanzania from which a reflection will be made on
the interpretation of the doctrine in the Tanzanian context, different interpretation of the doctrine
by scholars and legal practitioners, the practical application of the doctrine in Tanzania and
Frictions for disparities in interpretation of the doctrine and the implications of the narrow
interpretation of the doctrine of independence of judiciary in Tanzania. And to wind up the
research Chapter Four will provide for the Conclusion and Recommendation of this research.
Independence of judiciary has become a problem in Tanzanian due to the fact that the misleading
interpretation of the doctrine which allows the Executive and Legislative organs of the state to
overpower the Judiciary in course of application of the doctrine by interfering its decisions and
sometimes command it to comply with their decisions.
ix
LIST OF LEGAL INSTRUMENTS
A. Statutes:
The Constitution of the United Republic of Tanzania of 1977 as amended from time to time.
The Judiciary Administration Act No. 4 of 2011.
The Judges (Remuneration and Terminal Benefits) Act, 2007 11 CAP 16 R.E. 2002.
The British Act of Settlement, 1701
The Judicial Service Act CAP 23 R.E. 2002
x
LIST OF CASES
Ally Juuyawatu vs. Loseria Mollel and Republic vs. John Kasella Bantu, (1979) LRT 6.
Sheikh Mohamed Nassor Abdulla v. The RPC Dar es Salaam and 2 others, (1985) TLR 1.
Lesinoi Ndeinai and Another v. Regional Prisons Officer and Another, Misc. Criminal Cause No.
22 of 1979.
Republic v. Idd Mtengule, Criminal Revision No.1 of .1979.
Republic v. Acp. Abdallah Zombe and 12 Others, Criminal Sessions Case No.26 of 2006, High
Court of Tanzania at Dar es Salaam.
Republic vs. John Kasella Bantu, (1969) HCD 170
xi
ABBREVIATIONS
AC -Appeal Cases
ACP -Assistant Commander of Police
BC -Before Christ
CJ -Chief Justice
DC -District Court
HC -High Court
HCD -High Court Digest
ICCPR - International Covenant on Civil and Political Rights
LL.B -Le Legum Baccalaureus
NO -Number
R -Republic
RT -Retired
TLR -Tanzania Law Reports
URT -United Republic of Tanzania
v. –Versus (Against)
xii
TABLE OF CONTENTS
DECLARATION .......................................................................................................................................... i
CERTIFICATION ...................................................................................................................................... iv
COPYRIGHT ............................................................................................................................................. v
DEDICATION .......................................................................................................................................... vi
ACKNOWLEDGEMENT ........................................................................................................................... vii
ABSTRACT ............................................................................................................................................ viii
LIST OF LEGAL INSTRUMENTS ................................................................................................................. x
LIST OF CASES ........................................................................................................................................ xi
ABBREVIATIONS ................................................................................................................................... xii
CHAPTER ONE
INTRODUCTION
1.1 Background of the Problem........................................................................................................... 1
1.2 Statement of the Problem ............................................................................................................. 9
1.3 Aims & Objectives of the Study ................................................................................................... 13
1.4 Significance of the Study ............................................................................................................. 13
1.5 Study Hypothesis ........................................................................................................................ 15
1.6 Literature Review ........................................................................................................................ 16
1.7 Research Methodology ............................................................................................................... 20
1.8 Scope and Limitations of the Study ............................................................................................. 23
xiii
CHAPTER TWO
OVERVIEW OF THE DOCTRINE OF THE INDEPENDENCE OF JUDICIARY IN TANZANIA
2.1 Introduction ................................................................................................................................ 24
2.2 The Law Governing the Doctrine of Independence of Judiciary in Tanzania ................................ 28
2.3 The Rationale of the Doctrine of Independence of Judiciary in the Administration of Justice in
Tanzania............................................................................................................................................ 30
2.4 Advantages of Independence of Judiciary in Tanzania ................................................................ 35
CHAPTER THREE
THE ASSESSMENT OF INTERPRETATION AND APPLICATION OF THE DOCTRINE OF INDEPENDENCE OF

JUDICIARY IN TANZANIA
3.1 Introduction ................................................................................................................................ 38
3.2 The Laws Governing Independence of Judiciary in Tanzania ....................................................... 39
3.3 Interpretation of the Doctrine of Independence of Judiciary in Tanzania Context ..................... 40
Interpretation according to the Constitution .................................................................................. 40
3.4 Practical in Application of the Doctrine of Independence of Judiciary in Tanzania ..................... 46
3.5 The Frictions for Disparities in Interpretations of the Doctrine of Independence of Judiciary..... 53
3.6 The Implications of Narrow Interpretations of the Doctrine of Independence of Judiciary in

Administration of Justice in Tanzania ............................................................................................... 55
3.7 Conclusion ................................................................................................................................... 57
xiv
CHAPTER FOUR
CONCLUSION AND RECOMMENDATIONS
4.1 Introduction ................................................................................................................................ 58
4.2 Conclusion ................................................................................................................................... 58
4.3 Recommendations ...................................................................................................................... 59
BIBLIOGRAPHY ............................................................................................................................... 61
xv
CHAPTER ONE
INTRODUCTION
This research is based on the title “Independence of Judiciary and Administration of Justice in
Tanzania: A critical Assessment of its Interpretation and Practical Application by the Courts in
Tanzania” and the key issue is to determine or assess the interpretation and application of the
doctrine of the independence of judiciary in the administration of justice in Tanzania.
1.1 Background of the Problem
Independence of the Judiciary is legal doctrine which calls for the freedom of the judiciary in the
administration of justice. This freedom includes the court and its personnel such as judges and
magistrates in exercising their powers of dispensing justice. Independence referred here, is not
only the independence or freedom from the domination of the executive and legislature, but the
freedom of the judges and magistrates to decide the cases brought to them without being
intimidated, induced or pressured by any person.
Independence of judiciary should not be mistaken as the freedom of the judges and magistrates
to do as they please but to pay adherence to accepted legal values, substantive and procedural
rules of law applicable in the country1.
In early 12th Century, the doctrine of independence of judiciary was viewed in line with the
aspect of the King being the central judicial institution and this was justified by the Milton2
through the Hebraic Bible which stated inter alia that “Give us a king to govern/judge us.”3
1
C. P. Maina, Independence of the Judiciary In Tanzania: Many Rivers To Cross, 2012, Pg 1. Extracted from
www.kituochakatiba.org on 2nd April, 2012.
1
However, in one province of the imperial world, a different model of judicial administration was
at least imagined, if not implemented. Despite the domineering presence of a Roman Emperor,
rabbis in the first and second century CE announced their own juridical model that unmoored the
judiciary from the king’s dock. In the memorable words of the Mishnah, “A king may not judge,
nor be judged.” Justice is not for kings (not even Jewish ones) but rather for the Sanhedrin, the
idyllic Supreme Court that stands alone atop Jerusalem’s Temple Mount.
In relation to the legal system in England and Wales; “Judicial independence was defined as the
ability of a judicial officer to conduct their work free from improper pressure by executive
government, by litigants and by particular pressure groups.
This fundamental concept of judicial independence came into being in England in 1701 with the
enactment of the Act of Settlement 4. This statute formally recognized the principles of security
of judicial tenure (holding office during good behaviour) and the need for appropriate
mechanisms to exist for a judge’s removal (by address by both houses of parliament). Brooke
cautions that a democratic society, which takes the independence of its judiciary for granted,
does so at its peril.”5
In England, Independence of judiciary is considered in several ways: One, independence of the
executive and the legislature, and vice versa, and we do not get involved in political debate;
Two, the judges cannot be removed except on an address passed by both houses of parliament;
2
Milton, Defence Of The People Of England, England, 1651.
3
The First Book of Samuel, Hebraic Bible.
4
The Act of Settlement of England of 1701; The Act of Settlement addressed the dynastic and religious aspects of
succession, and also it further restricted the powers and prerogatives of the Crown. Under the Act, parliamentary
consent had to be given for the Sovereign to engage in war or leave the country, and judges were to hold office on
good conduct and not at royal pleasure - thus establishing judicial independence.
5
Harden, I., and Lewis, N., The Noble The British Constitution and the Rule of Law, (London, Hutchinson), 1986.
2
three, judges are almost entirely immune from the risk of being sued or prosecuted for what we
do; and lastly, judges are paid large enough salaries to render us free from the sort of financial
worries which might in theory fuel the risk of judicial corruption. 6
Around 1701, it became possible to identify a small group of court officials who had particular
experience in advising the King on the settlement of disputes. From that group of officials
evolved the justices in Eyre, who possessed what we would think of today as a mixed
administrative and judicial jurisdiction. Experience showed, that the combination of executive
and judicial functions led to great dissatisfaction the justices in Eyre came to be regarded as
engines of oppression as their organization became more refined and the parallel development of
courts composed of judges performing a solely judicial function was the one that was to last the
test of time.
It was in 1178 that Henry II first chose five members of his personal household, two clergy and
three lay, to hear all the complaints of the realm and to do right. These embryo judges were to
carry out their work as part of the King’s court (in another meaning of that word), and their
activities were to be supervised by the King and the wiser men of the realm (shades of twentieth
century justice in a totalitarian state!). This was the origin of the Court of Common Pleas, and
the Magna Carta prescribed that this court should sit permanently "in some certain place", in
practice at Westminster7.
6
Ibid
7
W. Blackstone, Commentaries on The Law Of England, Volume 1, 1978, Garland Publishing Inc, London. Being
A Reprint Of The 1783 Edition Printed For W Strahan, T Cadd And D Prince, Oxford.
3
Sir Edward Coke8 was the first judge to strike down a law which gave us the modern common law
by turning medieval common law inside-out through his resisting strong-minded kings. Lord
Coke bore witness for judicial independence through the famous Case of Commendams9, a
jurisdictional dispute involving the power of the King to grant ecclesiastical offices. This
illustrates the courage of Lord Coke in defending the principle of judicial independence. Coke
objected to the doctrine of de rege inconsulto.10
In June of 1616, King James I summoned the common law judges to his Whitehall palace
following the refusal of his command to halt the proceedings of the case. In a letter to the King,
drafted by Coke, the judges had explained that their oaths of office compelled them to go ahead
with the trial. “The stay required by your Majesty,” he said, “was a delay of justice and therefore
contrary to law and the Judges’ oath.” With a violent gesture, James I ripped the letter in half. All
twelve judges fell on their knees and begged humble pardon. James I asked each Judge what he
would do if the King ever again told the Court to stay proceedings. Each replied that he would do
“as His Majesty commanded 11.”
In respect to Coke answered that, “He would do that should be fit for a Judge to do.” It was a
statement never to be forgotten, and because of it, Coke was removed from office. By the end of
the seventeenth century, the judges had achieved full independence 12.
8
(1552-1634)
9
(1615)
10
The doctrine which gave the monarch’s right to consult with individual judges before a particular case is heard,
to ensure that an opinion in any particular case is favorable to the monarch, whatever else might be the interests
of the common law.
11
Bowen and C. Drinker, The Lion and the Throne: The Life and Times of Sir Edward Coke, Boston: Little, Brown and
Company, 1957.
12
James Mcclellan, Origins of Judicial Independence - Liberty, Order, and Justice: An Introduction To The
Constitutional Principles Of American Government [1989]
4
In Tanzania, the history of independence of judiciary in the administration of justice can be
traced back to the pre-colonial era of which the said history developed gradually depending on
the political and economic organization of the society as demonstrated herein bellow;
During the Pre-colonial era, the administration of justice during this time depended heavily on
the social economic and political organization of the society in Tanganyika. Two systems of
administration of justice namely; The Centralized and the Non-Centralized systems could be
identified at the time. The Centralized Systems was applicable to societies with chiefs who
played both roles of adjudicators and that of governors. In the Non-Centralized systems, the
entire community took part in the adjudication of disputes. However in both systems there were
no formalization of procedure in adjudication, the customs of the respective societies prevailed in
the process13.
In this era, independence of judiciary was nonexistent and not in great demand due to that fact
that the societies had no formal procedures in adjudication but also that the judicial institutions
themselves such that the chiefs were not subjected to any interference or intervention which
would demand their freedom in adjudication disputes.
During the colonial era, the nature of independence of judiciary had the following changes of
colonial rule in Tanganyika. On Germany colonial rule the administration of justice was
basically racial; there were two systems, one for natives and another for non-natives. The
13
www.judiciary.go.tz/etracted-30thMarch2012,1530hrs
5
adjudication at this time was made by the governor and other administrative Officers. The law
applicable in matters relating to Native was actually vague 14.
The Germans left behind a Three-tier Court System; one for Europeans, a second under the Local
Authorities and the Military Commanders for the Natives in effectively occupied areas and
lastly, the Traditional Judicial Institutions in areas without effective German Control. The
German Colonial Administration successfully attempted to impose upon the Natives a Pan-
Territorial Legal System for the first time in the area though the system was strange to them,
discriminatory and brutally applied by law enforcers15.
During the British Colonial Era, the British introduced two separate structures of judicial
hierarchies and this was done through the Tanganyika Order in Council 16. The two hierarchies
constituted a limb which had the High Court and Subordinate Courts which operated according
to English law on one hand, and the limb which catered for matters where both disputants were
natives applying customary law on the other. Despite several amendments to the law, the
administration of justice during British rule never did away with the racial discrimination 17.
In areas where the traditional system of courts existed there was no disruption of the indigenous
society, the laws administered were known and accepted by the people and the adjudicators were
familiar to the people, the system thus operated as a means to promote colonization. However, at
this period, there was a combination of Executive and Judicial functions, this meant that majority
14
Ibid
15
Ibid
16
Tanganyika Order in Council 1920
17
6
of the people were condemned to executive justice in which impartiality and fair play could not
be guaranteed.
Since independence in 1961, Tanzania Legal system has undergone several changes. In 1963 the
courts system was integrated and racism was eliminated in the administration of justice by the
enactment of the Magistrates Courts Act 18. The system remained undisturbed until 1984 when
the present court system was introduced through The Magistrates Court Act19.
However, there was significant development in 1977 when the Constitution came into force and
when the Court of Appeal of Tanzania was established in 1979. These particular developments
created the High Courts of Tanzania mainland that of Zanzibar and the Court of Appeal, a union
matter. The principal judge is the head of the high court of Tanzania (Mainland). As said above,
appeals from both the High Courts of Tanzania (Mainland) and that History of the Judiciary of
Zanzibar goes to the Court of Appeal of Tanzania 20.
Therefore, the history of Independence of judiciary in Tanzania, varied according to the colonial
administration in the former Tanganyika, for example direct rule during the German era, in
which the independence of judiciary was worse, no justice to the native Africans, and indirect
rule, during the British era, in which at least few Natives Indigenous were corporate into the
system. Hence, these enactment and development of laws aimed at shaping the Judiciary of
Tanzania not by providing a clear structure of the legal system but also separating the Judiciary
from the executive arm of the state.
18
Magistrates Court Act, Act No. 55 of 1963.
19
Magistrates Court Act, Act No. 2 of 1984.
20
7
Independence of the judiciary is a very important pillar in the doctrine of separation of powers of
the state. Independence of the judiciary is interpreted in three folds; the first is that the state
should guarantee it by entrenching clauses in the Constitution on the tenure, security,
emoluments and independence of judges. The second is that the State should surrender through
constitutional provisions the function of administering justice to the judiciary. It should also
guarantee fundamental rights and freedoms of individuals in the Constitution. This is important
especially in cases of conflict of interest between the State and an individual or group of citizens
collectively. The third requisite is the relative non-partisanship on the part of the judiciary in
adjudication of disputes where individual rights are in conflict with those of the State. 21
The doctrine of independence of judiciary in Tanzania was introduced by the Independence
Constitution 1961. The vision founded upon inter alia the bed rock of separation of powers and
the respect for the rule of law entrenched virtues of racial equality before the law, separation of
the executive and judicial function and professionalization of judicial. One feature of this era,
perhaps the most significant is that the Tanzania Judiciary attained a significant level of maturity
and an appreciation of the importance of the need for efficiency and effectiveness of delivering
of judiciary services. The then independence movement leader Mwalimu Julius K. Nyerere
declared that:
“Our judicial at every level must be independent of the executive arm of the state. Real
freedom requires that any citizen feels confident that his case will be impartially judged,
even if it is a case against the prime minister himself.”22
21
www.kituochakatiba.org/Extracted2ndApril2012
22
www.juciary.go.tz/Extracted13thJuly,2012.0306hrs
8
Therefore, as a response to that, the Constitution of the United Republic of Tanzania 1977
hereafter referred to as The Constitution incorporated the doctrine of Independence of judiciary 23
in Tanzania. However, its interpretation and application raises great controversies as to whether
Independence of Judiciary is a reality or a myth and this research aims at assessing just that. This
is because without the judiciary being free, assurance of the administration of fair justice is very
much limited (dominated). The people in the society need to be assured that justice will be done
even if the case involves a dispute between an individual and group of citizens against the Prime
Minister himself.
1.2 Statement of the Problem
This research caters to evaluate and deal with the problem of the violation of the doctrine of
independence of judiciary which is caused by several factors such as, the problem of narrow
interpretation of the doctrine of independence of the judiciary in Tanzania and the ineffective
application of the doctrine in the administration of justice in our country.
The other problem that this research focused on is the aspect of the interference and/or
intervention of the freedom of the courts and its personnel in the process of administration of
justice which some of them is justified by the laws enacted by the parliament of Tanzania. Such
that the enactment of the Judiciary Administration Act and its effects in the proper application of
the doctrine of independence of judiciary in the administration of justice in Tanzania.
23
Article 107B of the Constitution.
9
Independence of the judiciary in Tanzania is provided for under the Constitution24 and according
to the said provision, the independence of the judiciary is on freedom of the courts in the process
of administration of justice and the courts are only obliged only to pay adherence to the
provisions of the constitution and the laws of land.
However, the said independence of the judiciary secured by the Constitution poses a great
challenge as to whether it is a reality or a myth due to the nature of the prevailing circumstances
in the judicial system in relation to their freedom in the exercise of dispensing justice.
Independence of Judiciary has been facing great impede which has resulted in the violation and
undermining of the said independence 25.
The factors that pose as elements undermining and/or violating independence of judiciary
according to Chris Maina are said to be of two categories; external factors and internal factors26.
Under internal factors things which undermine the independence of judiciary includes protection
of incompetent judicial personnel by a Superior Judicial Officer in the judiciary or the
government (“Godfather” as named by the Chris Maina), marginalization of Judicial Officers
through poor or insufficient remunerations and exposing them to economic hardship and lastly
Corruption such that accepting or asking for bribe in order for the court to rule in favour of the
party giving bribe.
External factors undermining the Independence of the judiciary includes; the supremacy of the
Government over the Judiciary such that through appointment of the chief justice and judges of
24
Article 107B of the Constitution
25
K. Keregero, Attributes of the doctrine of Independence of the Judiciary, The Guardian Newspaper, IPP Media
Ltd, 2007-05-28 10:54:48- Dar es salaam, Tanzania
26
www.kituochakatiba.org/Extracted2ndApril2012
10
High Court by the president, appointment of courts Assessors in primary courts and High Court
and the tendency of the government to induce the courts to rule in their favour without paying
regard to the law and rules of natural justice.
Also under External Factors, there is an issue of harassment judicial personnel which is mostly
done by the Executive arm of the Government as in the cases of Ally Juuyawatu vs. Loseria
Mollel27 and Republic vs. John Kasella Bantu28 where the subjected to harassments through
being interfered in exercising their judicial functions or by being detained as it was in the case of
Kasella Bantu. Other factors includes; Contempt of Court by the Government by not enforcing
the court orders. That in several instances, the executive arm of the Government has been failing
or refusing to carry out court orders. Few notable instances include those in Sheikh Mohamed
Nassor Abdulla v. The RPC Dar es Salaam and 2 others 29 in which the Government refused to
carry out the court order by deporting the Sheikh Mohamed despite the court rejecting the same.
Also in the case of Lesinoi Ndeinai and Another v. Regional Prisons Officer and Another30
where the courts order requiring the police and prisons officials to release immediately the
applicants as they were illegally detained was disobeyed.
Apart from those factors which tend to undermine the doctrine of independence of judiciary in
Tanzania, the other aspect that results into the undermining or violation of the doctrine in the
practical application in the administration of justice is the narrow interpretation of the doctrine of
independence of judiciary. This at a large extent is caused by the provision of the constitution
being too general and not providing the scope of its interpretation. Hence, the controversy that
27
(1979) LRT 6
28
(1969) HCD 170
29
(1985) TLR 1
30
Misc. Criminal Cause No. 22of 1979.
11
exists in the interpretation which in most cases is the narrow interpretation leads to great
injustice to the citizens of Tanzania.
Lastly, the use of ouster clauses in legislation is another way in which the independence of
judiciary is violated or denied by the Government. Several legislations some of which are still in
operation, tends to exclude the courts from exercising the power of administering justice. To
name a few, the provisions of the Constitution and the Zanzibar Constitution31 respectively have
denied the courts of law the jurisdiction to determine any dispute arising from the results of the
presidential elections from both the United Republic and the Revolutionary Government of
Zanzibar. A thing which violates the independence of the judiciary in the administration of
justice as the authority with final decision in the exercise of dispensing justice as stipulated by
the Constitution32.
Thus, this study aims at assessing the interpretation and practical application of the doctrine of
independence of judiciary in Tanzania while reflecting the need to have the legal system in our
country with utmost independence to assure the citizens of a fair and unconditional justice, as the
absence of the same would affect the social, political and economic stability of our country
because it will reach a stage when the people will no longer have faith the courts as the final
resort where their rights can be protected, hence chaos political unrest will be inevitable in our
country.
31
Article 41 (7) and Article 34 (7) the Constitution and The Zanzibar Constitution.
32
Article 107A of the Constitution
12
1.3 Aims & Objectives of the Study
The main objectives of this research are is examine the interpretation of the doctrine
independence of judiciary in Tanzania and more specifically to evaluate
i. To examine the scope of the doctrine as it is interpreted and applied in Tanzania in the
whole process of administration of justice.
ii. Identify the key aspects which affect liberal interpretation and application of
independence of judiciary in Tanzania.
iii. Examine the adequacy of the law governing independence of judiciary in Tanzania.
iv. Showing the consequences of having a judiciary which is not practically independent.
v. Lastly, this research endeavor at prescribing and/or recommending appropriate measures
to assure the effective existence of independence of judiciary in Tanzania
1.4 Significance of the Study
With the regards of the objectives and the aims of the study (a research proposal), this research
paper will among other things have the following significance to the society/community at large;
i. The importance of the research to the researcher it is not different from what amount to
the importance of research to the whole society. As the fact that if a researcher will
increase his knowledge the same will be applied to a normal person in the society. As to
the matter of the study (the independence of judiciary in Tanzania), the researcher will
get to know the inner part of the judicial independence, will get to assess as the existence
of such judicial independence, will get to recommend on what should be considered as
13
the independence of judicial body, and apart from recommendations, a researcher may
also give the outcome of his recommendations, definitely positive effects on his
recommendations, and look to the other laws relating to the independence of judiciary.
ii. In regards to the other researches, once the research complete, the findings from the
research (independence of judicial) will function as prior data important for forth coming
research studies of the similar nature and also encourage other researcher to opt on the
similar subject matter or that which is related to it. This is not to say that, the other
researchers will have to copy what the previous researcher did, but will get the
knowledge on what the former researcher on the particular field did, and what they are
suppose to do currently.
iii. As to the matter of other students from the University, the knowledge of Independence of
Judiciary will be expanded to them, particular for those who are not part and parcel on
the field of law, such as Community Development Students. Thus by reading this
research, a student of such Faculty may understand, how the Judiciary work
independently so as they could be aware of any inconvenience relating to the
independence of judiciary. The research may also help other legal scholars in the
university, first for those who are the beginner; secondly for those who are at the stage of
knowing the meaning, how and when such doctrine of independence of judiciary
operates.
iv. The research will serve a challenge to the academicians that will spur and encourage
more studies in the given area (the independence of judiciary) thus creating the giving of
the new views on the subject on the hand, as the fact that the challenger will engage a
14
new research on a particular matter, so as to prove their challenging thus creating new
views of the subject.
v. As the fact that, the research paper will be available to the society, therefore the society
will be inform and expand their knowledge on this subject matter, especially on how
varieties of cases concerning the independence of judicial independence are handled
before the Court of Law.
vi. As the aim of a research is to find out the hidden truth of a certain matter whether,
scientific, economic, social, political or cultural matters, thus the finding of such hidden
truth or facts may raise awareness to the government and law makers on the need of
observing equality before the law whether expanding or reducing the meaning of
independence of judiciary.
1.5 Study Hypothesis
1. The independence of judiciary in Tanzania legal system is not efficient and well
performed due to the following facts;
2. The rules that laid down the independence of judiciary in Tanzania are insufficient to
assure uniformity, certainty and proper interpretation and application of the doctrine of
independence of judiciary.
3. The insufficiency of these rules of independence of judiciary in Tanzania is the source of
the failure of practical application of the doctrine of independence of judiciary in the
administration of justice in Tanzania.
4. There is a need of having a liberal interpretation of the doctrine of independence of
judiciary in order to widen its scope and application in the administration of justice.
15
1.6 Literature Review
Independence of Judiciary is one of the important pillars of Separation of Powers, thus the aspect
of Independence of Judiciary is widely and extensively discussed in most Administrative and
Constitutional Law texts. Hence, some of the texts or books which will provide the sources to
conclude our research include:
To begin with, Wade and Bradley, they discussed independence of judiciary in the light of
separation of powers between the executive and judiciary and legislature and judiciary. In this,
the authors exposed three questions which one should ask himself when determining the nature
or existence of independence of judiciary in the legal system of a country. These questions
includes; One, whether the same person forms part of more than one of the three organs of
government; Two, whether one organ of government control or interfere with the work of
another and Third, whether one organ of government exercises the functions of another. In
considering each of these aspects of separation, it needs to be remembered that complete
separation of powers is possible neither in theory nor in practice. 33
The concept of independence of judiciary according to Wade and Bradley rely only on separation
of powers. This brought the questions on what about the factors which intimidate the separation
of powers, also the authors did not explain the circumstances in which the court decisions can be
intimidate by an individual or individuals. Therefore, the definition of independence of judicial
to them, cannot support the above aspects, in which it became narrow and provide loopholes for
the other state organs and individuals to interferes court’s matter, thus render to injustice.
33
E.C.S. Wade & A.W. Bradley, Constitutional and Administrative Law, 10th Edition, Longman, New York-1985.
Pg 53.
16
Furthermore, P.A. Oluyede34, Independence of Judiciary has also been argued that there is no
liberty if the judicial power is not separated from Legislative and Executive. Where it is joined
with Legislative, the life and liberty of the subjects would be exposed to arbitral control; for the
judge would then be a legislator. Where it is joined with Legislative power, the judge might
behave with violence and oppression. There would be an end to everything, where the same man
or the same body, whether of the nobles or of the people top exercise those three powers that of
enacting law, that of executing public relations and of trying the causes of individuals.
P. A. Oluyede is not such different from Wade and Bradley over the doctrine of judiciary
independence. The slight different is that, Oludeye concentrated in detail the judicial
independence of East African Countries and left other concept of independence of judiciary, for
example the United Kingdom. This is simply because, it is from the looking of these variety
definitions of independence of judiciary, where by a particular states get to know the extent and
the scope of meaning of independence of judiciary.
For example the House of Lords in Great Britain has more power than the House of Common,
thus independence of judiciary is more practicable than in Tanzania in which the Executive and
Legislature frequently over power the Judiciary body. If Oludeye could balance the
independence of judiciary between the United Kingdom and East Africa that could bring at least
a clear picture of comparison between the two blocks, and see the negativity and positivity of the
doctrine of independence of judiciary between the two blocks.
34
P.A. Oluyede, Administrative Law in East Africa, Kenya Literature Bureau, 1973- Kenya.
17
Also, Hilaire Barnett,35 in his book explains Independence of Judiciary and separation of
powers. In terms of separation of powers, the author quotes the statement of Aristotle (384-
322BC). He proclaimed that:
“There are three elements in each constitution in respect of which every serious
law giver must look for what is advantageous to it; if this are well arranged, the
constitution is bound to be well arranged and the difference in constitutions are
bound to correspond to the difference between each of these elements. The three
are: Deliberative which discusses everything of common importance, The
Official (Executive) and the Judicial element.”36
The Judiciary is independent of both the Parliament and Executive. It is the feature of Judicial
Independence which is prime importance both in relation to government according to law and the
protection of liberty of citizens against the Executive.
Hilaire Barnett failed to explain the nature of independence of judiciary, things like the
impartibility of the Judicial Officer, was not explained. He is not different from what Wade and
Bradley stipulated in their book concerning judiciary independence.
As advocated by the Baron de Brede et de Montesquieu in 1748, independence of judiciary
was stipulated as,
“When the legislative and executive powers are united in the same power, or in
the same body of magistracy, there can be no liberty. Again there is no liberty if
the power of judging be not separated from legislative and executive power”37.
His definition concentrates more on distinction of powers of the three state organs.
35
H. Bernett, Constitutional and Administrative Law, 4th Edition, Cavendish Publishing Limited, Sydney, Australia-
2002.
36
Aristotle, The Politics (384-322bc). Reproduced from H. Bernett, Constitutional and Administrative Law, 4th
Edition, Cavendish Publishing Limited, Sydney, Australia-2002. Pg 105
37
H. Bernett, Constitutional and Administrative Law, 4th Edition, Cavendish Publishing Limited, Sydney, Australia-
2002.
18
Montesquieu failed to explain the other factors that may render to insufficient and ineffective of
judicial activities. He concentrates more in Powers of the Judiciary and other organs of the states,
but things like corruptions, security of tenure, were not expressed. The individual interference of
court’s matter and decision is not also expressed.
Chris .M. Peter and H.K. Bisimba38, described independence of judiciary, as stipulated in the
Country’s Constitution and preamble of the Constitution. He also defined the term through
looking various quotations of some famous persons in our country. For example, the Father of
the Nation, Mwalimu Julius Kambarage Nyerere39, stated that,
“It is of paramount importance that the execution of the law should be without
fear or favour. Our judiciary at every level must be independent of the executive,
arm of the state. Real freedom requires that any citizen feels confident that his
case will be impartially judged, even if it is a case against Prime Minister
himself”40.
Chris .M. Peter and H.K. Bisimba also reflect the independence of judiciary, in terms of
remuneration, term of service, qualifications, security of tenure, and selection and appointment
of judges, in which the judicial commission is also involved on such practice, which could render
to appointment of good and qualified judges who will serve the justice without fear or an
intimidation.
38
C. P. Maina, H.K. Bisimba, Law & Justice in Tanzania, Quarter Of A Century Of The Court Of Appeal, Mkuki Na
Nyota-2007, Tanzania.
39
J. K. Nyerere, Freedom and Unity: A selection from Writings and Speeches 1952-1965, Dar es Salaam: Oxford
University Press, 1966, p.131.
40
C. P. Maina, H.K. Bisimba, Law & Justice in Tanzania, Quarter of a Century of the Court of Appeal, Mkuki Na
Nyota-2007, Tanzania, page 85.
19
Lastly, Issa G. Shivji41, The Independence of Judiciary is explained as stipulated as stipulated in
the constitution42. For the Judiciary to be trusted and accepted by the people it must be able to
carry out its functions without fear of favour, impartially and they should be seen to be impartial.
The author also explains that the Independence of Judiciary was once provided from their
preambles since independence since 1961. But the 13th amendment of the Constitution passed in
2002 unexpressed Article as added to stipulate in very clear terms the independence of judiciary.
1.7 Research Methodology
This study is analytical and descriptive in nature; it aims at discovering whether the rule of
independence of judiciary is efficient in literature and practice. And also to evaluate the decision
made in many cases related to independence of judiciary. Through this study we shall question
different decisions made and see different ideas on independence of judiciary in Tanzania should
be modeled relating to the advancement of law in the society.
1.7.1 Methods of Data Collection
In order to accomplish the research objectives, the following techniques and methodologies will
be applied to collect data. Start with;
a) Documentary Review/Library Resource
As being one among the important of research, that is to make reference as to what the previous
researchers finds, and in order to make the study successful, the researchers will use some
information which has already been collected and written by other researchers. This may
41
I. G. Shivji, H. I. Majamba, R. V. Makaramba & C. M. Peter, Constitutional And Legal System Of Tanzania,
Mkuki Na Nyota Publishers Limited, Dar Es Salaam, Tanzania, 2004.
42
Article 117A and 117B of The Constitution
20
sometimes referred as documentary review as the researcher will gather data from textbooks,
research papers, law reports and journals which are related to the subject in hand.
The web search engine will also be necessary for gathering of information. By using this method,
the researchers may challenge on what has been written by other researcher in order to provide a
platform in answering our research problem.
b) Interviews
In this aspect the information will be gathered directly from legal persons, magistrates,
advocates, and judges, as long as they are accessible to the researchers, particular Dare Es
Salaam and Iringa Regions. These legal persons will also includes, the retired magistrates,
advocates and judges. Lecturers and Students who are studying the legal field (Faculty of Law)
at Tumaini University and any other University that provides for a Law Degree, such as Ruaha
University at Iringa, will also gives their view on the independence of judiciary.
1.7.2 Data analysis
In data analysis, the researchers will testify the hypothesis with the data collected to sort out
useful data and sources. Things like sampling designing, sampling size and population, sampling
plan, data processing, and data analysis itself are going to be examined. Start with;
1.7.3 Sampling design
Here it is where, the researchers stipulated on the sample design, especially on the number of the
population through which the information is going to be gathered. The research is going to be
conducted in two Regions, Dar es Salaam and Iringa Regions. These two regions have been
21
chosen due to the following factors; One, their facilitation and accessibility of data collections;
Two, influences of judicial activities and Three, the residential position of the researchers.
1.7.4 Sampling Size and Population
In this research the entire study population involved of 30 persons. The researchers used the
interview technique to get sample population to be involved in doing this research of which will
represent the whole community comprising of 3 advocates, 2 judges (from any rank whether
High Court of Tanzania or Court of Appeal of Tanzania), 3 lecturers from the Faculty of Law
(from the available Universities), 2 Magistrates (from any of Primary, District and Resident
Magistrate Courts), 8 students from various Universities which provides for a Law Degree, 1
Retired Judge, and 11 lay persons, particularly in Iringa Region.
Sampling Plan/Procedures.
The sampling technique which shall be used in the collection of information shall be purposively
sampling (for the legal professionals, such as Judges, Magistrates and Advocates) and random by
choosing the persons to be interviewed and the choice shall be made out of their knowledge on
the research problem observed by the researcher. These techniques are used because we need to
have the specific criterias of who have such knowledge on the independence of judiciary.
Data Processing.
After the data was collected, data process involved editing and coding. The researchers keenly
edited the information obtained from the interviews and data collected before codifying it. This
22
was in order to prepare an accurate study of the research problem for the benefits of the ones
who will use the study as reference.
After the data had been processed, they were analyzed by the researchers in order to find a
relationship, a challenge and a difference on the data collected and the hypothesis formulated.
This is done in order to give a conclusion for the research problem.
1.8 Scope and Limitations of the Study
This research is concerned with the Independence of Judiciary in Tanzania, assessing its
existence and adherence in the process of administration of justice to ascertain whether it is a
reality or a myth such that a doctrine in legislations. Thus the focus of this research will be on the
freedom of court and the judicial personnel in dispensing their duties of administering justice.
And since this research will focus on Tanzania as the case study of the research (particularly Dar
es Salaam and Iringa Regions), then it is only the laws enforce and applicable in the United
Republic of Tanzania will be used in the assessment.
Generally speaking, the issue of time is a quite problem in addressing the question of
independence of judiciary in Tanzania. As the fact that the issue is very wide and requires an
extensive research on it, therefore attending the normal class sessions together with finding the
matter in hand, could be the limitation.
23
CHAPTER TWO
OVERVIEW OF THE DOCTRINE OF THE INDEPENDENCE OF JUDICIARY IN

TANZANIA
2.1 Introduction
This chapter provides for overview of the doctrine of independent of judiciary in Tanzania, its
interpretation and application. The chapter will contain definition and perspective of what the
doctrine of independence of judiciary mean according to different authors in their literatures.
The chapter also caters for a critical assessment on the law governing the independence of
judiciary in Tanzania, assessing its effectiveness and promotion of doctrine independence of
judiciary in Tanzania. Thereafter, the chapter will provide for the rationale of the doctrine in
Tanzania, reflecting the advantages of its proper practical application in the administration of
justice in Tanzania.
The Judiciary is one of the important pillars of the doctrine of separation of powers and rule of
law. Thus the aspect of independence of judiciary is widely and extensively discussed in most
administrative and constitutional law texts. Hence, some of the texts or books which will provide
the sources to conclude our research include:
As for Issa Shivji, he expresses the Independence of judiciary as the freedom of the judicial arm
of the State in exercising its judicial power in dispensing justice. Judiciary is the body that
citizens who feels wronged or aggrieved can resort to. It must be independent so that it can be
trusted and accepted by the people, through having freedom in deciding its matters without of
24
fear or favour, and impartially in carrying it’s their functions43. From the above description, it
entails that, independence of judiciary is the situation whereby the legitimate judicial body is
independent in executing its functions without fear or favour to any party to a litigation, and
maintain its impartibility.
According to Chris .M. Peter and H.K. Bisimba44, the independence of judiciary, is stipulated
in our Constitution45. The term is also defined by Mwalimu Julius Kambarage Nyerere, Father
of the Nation,46 who defined Independence of the Judiciary in his own perspective by saying
that,
himself”47.
The reflections of independence of judiciary was also in terms of remuneration, term of service,
qualifications, security of tenure, and selection and appointment of judges, in which the Judicial
Commission is also involved on such practice, which could render to appointment of good and
qualified judges who will serve the justice without fear or intimidation.
Therefore, to them assessment of remuneration, term of service, security of tenure, selections and
qualifications of judges is what amounts to independence of judiciary.
43
I. G. Shivji, et all, Constitutional And Legal System Of Tanzania, Mkuki Na Nyota Publishers Limited, Dar Es
Salaam, Tanzania, page 42-44, 2004.
44
C. P. Maina, H.K. Bisimba, Law & Justice in Tanzania, Quarter Of A Century Of The Court Of Appeal, Mkuki Na
45
Article 107B of The Constitution.
46
J. K. Nyerere, Freedom and Unity: A selection from Writings and Speeches 1952-1965, Dar es Salaam: Oxford
University Press, 1966, p.131.
47
25
P.A. Oluyede argued the meaning of independence of judiciary in terms of separation of powers.
That, each and every organ of the state must act independently. He continues arguing that, there
is no liberty if the Judiciary is not separated from Legislature and Executive. Where it is joined
with Legislature, the life and liberty of the subjects would be exposed to arbitral control; for the
judge would then be a legislator. Where it is joined with Legislative power, the judge might
behave with violence and oppression. There would be an end to everything, where the same man
or the same body, whether of the nobles or of the people top exercise those three powers that of
enacting law, that of executing public relations and of trying the causes of individuals 48.
Hilaire Barnett, explains Independence of Judiciary by relating it to Separation of Powers. The
author quotes the statement of Aristotle (384-322BC). Aristotle proclaimed that:
“There are three elements in each constitution in respect of which every serious
law giver must look for what is advantageous to it; if this are well arranged, the
constitution is bound to be well arranged and the difference in constitutions are
bound to correspond to the difference between each of these elements. The three
are: Deliberative which discusses everything of common importance, The
Official (Executive) and the Judicial element. 49 ”
The Judiciary should be independent of both the Parliament and Executive. It is the feature of
Judicial Independence which is of prime importance both in relation to government according to
law and the protection of liberty of citizens against the Executive 50.
The above definition is not so different from this, as promoted by the Baron de Brede et de
Montesquieu in 1748, independence of judiciary was stipulated as, “When the legislative and
executive powers are united in the same power, or in the same body of magistracy, there can be
48 48
P.A. Oluyede, Administrative Law in East Africa, Kenya Literaure Bureau, 1973- Kenya.
49
Aristotle, the Politics (384-322bc). Reproduced from H. Bernett, Constitutional and Administrative Law, 4th
Edition, Cavendish Publishing Limited, Sydney, Australia, Cap 5. Page 108-133-2002.
50
H. Bernett, Constitutional and Administrative Law, 4th Edition, Cavendish Publishing Limited, Sydney, Australia,
Cap 5. Page 108-133-2002.
26
no liberty. Again there is no liberty if the power of judging be not separated from legislative and
executive power”. His definition concentrates more on distinction of powers of the three state
organs51.
According to Martin Partington, judicial independence relates centrally to the constitutional
functions of judges in interpreting and applying law outside the constraints of internal
government departmental policies. He argues that, the key claim made for adjudicators of all
kind is that they must not only be, but be seen to be independent. Adjudicators not perceived as
independent will be compromised in the eyes of the public, particularly by those in relation to
whom adjudicators are reaching the decision52.
Md. Awal Hossain Mollah argued that, judicial independence is defined, in this report as a
Judiciary uninhibited by outside influences which may jeopardize the neutrality of jurisdiction,
which may include, but is not limited to, influence from another organ of the government
(functional and collective independence), from the media (personal independence), or from the
superior officers (internal independence)53. The concept of judicial independence as recent
international efforts to this field suggests, comprises of the following four meaning of judicial
independence;
51
Montesquieu, The Spirit of Laws 202, (David Wallace Carrithers Edition, 1977) (Book Xi, Chapter 6, Paragraphs
5, 6)-1748, Geneva, Switzerland.
52
M. Parlington, Introduction to the English Legal System , Second Edition, page 246, Oxford University Press,
2000-2003, Newyork-United States of America.
53
Md. A. H. Mollah, Separation of Judiciary and Judicial Independence in Bangladesh, University, Rajshahi-6205,
Bangladesh-2004.
27
Substantive Independence of the Judges refers to as functional or decisional independence
meaning the independence of judges to arrive at their decisions without submitting to any inside
or outside pressure; Personal independence, that means the judges are not dependent on
Government in any way in which might influence them in reaching at decisions in particular
cases; Collective Independence, that means institutional administrative and financial
independence of the judiciary as a whole vis-à-vis other branches of the government namely the
executive and the legislative; and Internal Independence, that means independence of judges from
their judicial superiors and colleagues. It refers to, in other words, independence of a judges or a
judicial officer from any kind of order, indication or pressure from his judicial superiors and
colleagues in deciding cases.
Therefore, by looking to the above definitions of the independence of judiciary, various concepts
have been emerged to stipulate the independence of judiciary, for instance the doctrine of
separation of powers.
2.2 The Law Governing the Doctrine of Independence of Judiciary in Tanzania
The judiciary occupies a special position in any democratic society like Tanzania. It is part and
parcel of the state within the framework of the doctrine of separation of powers. Under this
doctrine, the legislature is supposed to make the laws, the judiciary to interpret and administer
them and the executive to enforce them. For the judiciary to be able to undertake its functions
28
fairly and impartially, it is required to be independent of the other two organs of the State and
independent from political and other societal pressures54.
Independence of the judiciary in Tanzania is provided for under the Constitution which states
that,
“In exercising the powers of dispensing justice, all courts shall have freedom and
shall be required only to observe the provisions of the Constitution and those of
the laws of the land.”55
According to the said provision of the Constitution, the independence of the judiciary caters for
the freedom of the courts in the process of administration of justice and that the courts are only
obliged to pay adherence to the provisions of the constitution and the laws of land 56.
For the Judiciary to be trusted and accepted by the people it must be able to carry out its
functions without fear or favour, impartially and they should be seen to be impartial, and by the
by the requirement of the Constitution57, that the judicial authority shall be final decision in
dispensing justice in the United Republic of Tanzania, creates the environment for the judicial
body to be independence as it could make the decisions which would be not interfered by
anything as the fact that it is final58.
54
55
56
Ibid
57
58
Ibid
29
2.3 The Rationale of the Doctrine of Independence of Judiciary in the Administration
of Justice in Tanzania
The division of labour, between a legislator, an administrative official, and an independent judge,
is a necessary condition for the rule of law in the modern society and therefore for democratic
government itself59. In Tanzania, since the independence in 1961, Tanzanian Constitutions have
provided for the independence of judiciary. It was the 13th Amendment of the Union Constitution
which was passed in the year 2000 that contained an expressive Article 60 that was added to
stipulate in very clear terms the independence of the judiciary61. This has also been stipulated in
the Constitution. The independence referred here has many folds as described below;
Substantive Independence of the Judges, It is referred to as functional or decisional independence
meaning that the independence of judges in arriving at their decisions without being subjected to
any inside or outside pressure. This is provided for under the Constitution62 by giving the Judicial
Authority the authority with the final decision in dispensing justice in the Unites Republic of
Tanzania. The state surrenders through constitutional provisions the function of administering
justice to the judiciary.
In R v. Idd Mtengule63, Chipeta J, made the following notable remarks regarding independence of
judiciary in Tanzania.
59
E. G., Henderson, Foundation of English Administrative Law, page 5-1963
60
Article 107 (1) of The Constitution
61
Mkuki Na Nyota Publishers Limited, Dar Es Salaam, Tanzania, page 44, 2004.
62
Article 107A(1) of the Constitution
63
Criminal Revision No.1 of 1979
30
“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. It must not be subjected nor succumb to intimidation of any kind.”
Personal independence, this means the Judges and other Judicial Officers are not dependent on
Government in any way in which might influence them in reaching at decisions in particular
cases. Unlike the Substantive independence of the judges, Personal independence of the judges
refers to the independence of the judges themselves being free from either direct or indirect
influence or intimidation by the executive arm of the government. The Constitution64 provides for
Judicial Body to be impartial to any person without regarding their economic or social status. In
this way the judge are not dependent on Government as the Constitution provides them with a
guard shield towards any influence on its decisions. For example, relative non-partisanship on the
part of the judiciary in adjudication of disputes where individual rights are in conflict with those
of the State.
Also the establishment of the Judicial Service Commission under the Constitution65, with the
Chief Justice as the Chairman, Attorney General, Justice of Appeal, and the Principle Judge,
which inter alia participate in appointing Judges and Magistrates, deals matters relating to
discipline of the Judges, salaries and remuneration of the Judges, and to establish committees for
the implementation of their functions 66.
64
Article 107A (2) (a) of the Constitution
65
Article 112 (1) of the Constitution
66
31
And to make sure that members in the Commission are responsible, the two members appointed
by the President in the Commission are not suppose to be members of the parliament or holder of
any office prescribe by the law enacted by the parliament 67.
In case of Court of Appeal, Chief Justice is given the authority in participating in appointing the
Justices of Appeal, after making consultation with the President 68. The provision shows the
independence of the judiciary in appointing various position of Justice of Appeal. The act of the
two Legislations of establishing such an independent body to deal with the matters relating to
judiciary entails the existence and applicability of independence of judiciary to court personnel in
Tanzania.
Collective Independence, This is also another factor that may contribute to promotion of
independence of the judiciary. This refers to institutional administrative and financial
independence of the judiciary as a whole vis-à-vis other branches of the government namely the
executive and the legislative; it is a requirement that judicial officers should have adequate
remuneration, better working conditions of service and pensions 69.
Remuneration security of judges means that the salary of all judicial officers should be adequate,
fixed and secure and not subject to arbitrary change by any branch of government. The objectives,
of course, are to ensure that judges are not subject to temptation, are not unduly worried or
distracted by their present and future financial state, and that judicial remuneration is sufficient to
attract the most competent and qualified citizens into the judicial ranks. Also all these shall be
67
68
69
Md. A. H. Mollah, Separation of Judiciary and Judicial Independence in Bangladesh, University, Rajshahi-6205,
Bangladesh-2004.
32
adequately secured by law70. In many countries where there is independence of judiciary payments
of judicial officers are made out of consolidated fund71 and Judiciary Fund 72, and thus they cannot
be reduced or tempered with by the executive or parliament.
The Judiciary Administration Act 73 provides that the Chief Justice shall be responsible for
overseeing performance of judicial functions of the courts, power to determine the sittings of the
court assign judges to sittings, assign cases to judges, annual, monthly and weekly work load of
judges, and preparing hearing list and assign courtrooms 74. This explain the independence of
judiciary in administrative means of the judicial body, that neither executive nor legislative body is
entitled to engage in any of the above functions, but judiciary body only through the Chief Justice.
Internal Independence, this is also another factor of promoting the independence of the judiciary
which demands the judicial officers being free from intimidation or pressure from their superior
officers and colleagues. It refers to, in other words, independence of a judge or a judicial officer
from any kind of order, indication or pressure from his judicial superiors and colleagues in
deciding cases. In making this work properly, the Constitution of the United Republic of Tanzania
provides for the security of tenure 75, it provides that no judge of the High Court shall vacate the
office unless attaining the age of sixty years old, or unless otherwise the President directs or
specify otherwise.
70
Remuneration and Terminal Benefit Act CAP 16 (2007) which provides for remunerations, terminal benefits and
survival benefits to persons holding office of Chief Justice, Justice of Appeal and Judges of the High Court,
71
Article 135 (1) of The Constitution
72
Section 52 (1-4) of Judiciary Administration Act No.4 of 2011.
73
Section 25 (1) of the Judiciary Administration Act No.4 of 2011.
74
75
33
It further entails the security of tenure for judges of the High Court by providing the conditions for
the removal of judges form their offices76, for examples when a judge has inability to continue
performing his office functions, for behaviour inconsistent with their ethics or law as advised by
the Special Tribunal77.
In case of security of tenure to the Justice of Appeal, they shall vacate the office only at the
retirement age, that is sixty five years (65), unless the President direct otherwise as it may fit to
continue with the position78. However, the justice of appeal may be removed from the office under
the following situation, when there is inability in performing office functions, or when there is
inconsistent behaviors which are not tolerable. This removal must be considerable and observed
the same to Article 110A of the Constitution79.
Therefore, judges and Justices of Appeal do not have to worry about losing their jobs, thus they
should make their decisions in accordance with the particular law without being afraid of either the
government officials or their learned colleagues.
In cementing on the Independence of Judiciary in Tanzania, the Judiciary Administration Act No.4
of 2011 provides for the Judicial Officers Ethics Committees80, which shall be responsible for
ethical responsibility of the Judicial Officers, hence no interference of either executives or
members of the parliament on the ethical issues of the judges and other judicial officers.
76
Article 110A (1) of the Constitution
77
Article 110A (4) of the Constitution
78
Article 120 (1-4) of the Constitution
79
Article 120A (1-2) of the Constitution
80
Section 36 of the Judiciary Administration Act No.4 of 2011.
34
The Judiciary Administration Act81 provides for the establishment of Judges Ethics Committee,
whereby three Justices of Appeal, three Judges of the High Court, are appointed by the Chief
Justice82, thus showing a sense of judiciary independence. The same apply to Judicial Officers
Ethics Committee established in Section 46 (1) of the same Act, whereby Jaji Kiongozi, two judges
in the High Court, and two Judicial Officers are appointed by the Chief Justice83.
Therefore, for the above prescriptions on the judicial body, and by observing the two piece of
Legislations, The Constitution of the United Republic of Tanzania of 1977 as amended from time
to time, and The Judiciary Administration Act, Act No.4 of 2011, it expresses and entails the
existence and applicability of the Doctrine of the Independence of Judiciary in Tanzania.
2.4 Advantages of Independence of Judiciary in Tanzania
In the modern democratic states, the principle of an independent Judiciary has its origin in the
theory of separation of powers, whereby the Executive, Legislature and Judiciary form three
separate branches of government, which, in particular, constitute a system of mutual checks and
balances aimed at preventing abuses of power to the detriment of a free society. This independence
means that both the Judiciary as an institution and also the individual judges and magistrates must
be able to exercise their professional responsibilities without being influenced by the Executive,
the Legislature or any other inappropriate sources.
Tanzania as one among the state that develop and promote the independence of the judiciary, have
the following advantages on promoting and developing the independence of judiciary;
81
82
83
Section 46(2) of the Judiciary Administration Act No.4 of 2011.
35
Only an independent Judiciary is able to render justice impartially on the basis of law, thereby also
protecting the human rights and fundamental freedoms of the individual84. For this essential task to
be fulfilled efficiently, the public must have full confidence in the ability of the Judiciary to carry
out its functions in this independent and impartial manner. Whenever this confidence begins to be
eroded, neither the Judiciary as an institution nor individual judges will be able to fully perform
this important task. The principle of independence of judges was not invented for the personal
benefit of the judges themselves, but was created to protect human beings against abuses of power.
It follows that judges cannot act arbitrarily in any way by deciding cases according to their own
personal preferences, but that their duty is and remains to apply the law. In the field of protecting
the individual, this also means that judges have a responsibility to apply, whenever relevant,
domestic and international human rights laws.
Independence of judiciary creates respect for the rule of law. It is a truth, universally
acknowledged, that judicial independence is one of the principal building blocks of the rule of law.
For instance, a legal system based on respect for the rule of law also needs strong, independent and
impartial prosecutors willing resolutely to investigate and prosecute suspected crimes committed
against human beings even if these crimes have been committed by persons acting in an official
capacity. The rule of law makes judges and prosecutors to play their respective key roles to the full
in maintaining justice in society85. If people encounter problems in securing justice for themselves,
they may be driven to take the law into their own hands, resulting in a further deterioration in the
administration of justice and, possibly, new outbreaks of violence, but by respecting the Rule of
Law, things like those will not happening.
84
Article 107A (1) and (2) (a) of the Constitution
85
Article 107B the Constitution
36
Independence of judiciary also results to the creation of complete legal system. The legal system
would not be complete without independent lawyers who are able to pursue their work freely and
without fear of reprisals. Indeed, independent lawyers play a key role in defending human rights
and fundamental freedoms at all times, a role which, together with that played by independent and
impartial judges and prosecutors, is indispensable for ensuring that the rule of law prevails, and
that individual rights are protected effectively. There would be no complete legal system in
Tanzania, if the Executive and Legislature interfere in judicial matters.
It plays a crucial role in the system of checks and balances, a role which demands independence
from the executive and legislature. By applying national constitutions, legislation and the common
law to official actions, courts are supposed to ensure that the other branches of government respect
the rights of the people and do not act illegally. Courts are often asked to review the validity of
legislation, and members of the executive branch often come before the courts as litigants. Thus act
as a foundation of democracy, accountability, and transparency.
And lastly, independence of the judiciary enables everyone to have the right to be tried by ordinary
courts or tribunals using established legal procedures, and tribunals that do not use the duly
established procedures of the legal process shall not be created to displace the jurisdiction
belonging to the ordinary courts or judicial tribunals. It entitles and requires the judiciary to ensure
that judicial proceedings are conducted fairly and that the rights of the parties are respected. It is
very important to insist on the independence of judiciary, in order to maintain the rule of law,
dispensing of justice at all level regardless of status(economic, political and social).
37
CHAPTER THREE
THE ASSESSMENT OF INTERPRETATION AND APPLICATION OF THE

DOCTRINE OF INDEPENDENCE OF JUDICIARY IN TANZANIA
3.1 Introduction
The aim of this chapter is to assess the application and interpretation of the doctrine of the
independence of judiciary in assisting the judiciary in making fair and just decisions on the basis
of law without regarding to influences from any other organs of the state86. Thus the chapter
intends assess how the independence of judiciary is interpreted and applied. Independence of
judiciary is quartered into some issues such as remuneration and security of tenure, so far into
regulating matters relating to dispensing justice to the citizens, in a certain instance some of this
principle of independence of judiciary has failed to meet the aims of the doctrine hence making it
weak.
It is from this chapter, where by those weaknesses of practical application of independence of
judiciary, different interpretations of the doctrine of independence of judiciary, the fictions for
disparities in interpretations of the doctrine of independence of judiciary, and the implications of
narrow interpretations of the doctrine of independence of judiciary are going to be well
discussed.
86
A court which can afford to take its decisions without any interference of executive or legislative branch of
government.
38
3.2 The Laws Governing Independence of Judiciary in Tanzania
In Tanzania the independence of judiciary is clearly stipulated in the Constitution of the United
Republic of Tanzania of 1977, as amended where it states that, hereafter.
“In exercising the powers of dispensing justice, all courts shall have freedom and shall be
required only to observe the provisions of the constitution and those of the laws of the land.”87
This means that the judiciary shall only be independent in determining the matters arising from
the Constitution and the laws of the land and not those out of them.
The Judicial Services Act is legal regime which provides for the independence of judiciary which
provides that establishment and composition88 of the Judicial Services Commission in which it
provides that the members of the commission shall not be a member of the parliament or any
person holding office in the government 89. This provision calls for the separation of power and
promotes the independence of the judiciary in Tanzania. Also this Act provides for the protection
of the members of the commission in which the judges of the high court are privileged and
protected for any action or suit instituted against them for any act or omission done by them in
the execution of the their judicial office duties provided that they did that in bona fide90.
87
Article 107B of The Constitution
88
Section 3 of the Judicial Service Act CAP 237 Revised Edition 2002
89
Article 112(3) of the Constitution
90
Section 8 of the Judicial Service Act CAP 237 Revised Edition 2002
39
The Judiciary Administration91 is another law which provides the doctrine of independence of
judiciary in Tanzania. The Act shows the continuance existence of the Judicial Service
Commission and its functions 92. The Commission is to regulate its own procedures in
administering of justice93. This shows how the Judicial Body is independence in administering its
personnel. This Act also provides for the issues of appointment and dismissal judicial officers
(except the Chief Justice)94, the aspects of benefits and terminal benefits of judicial officers 95and
all other issues of remuneration for judicial officers and the funds of the judiciary96, things which
touches the heart of independence of judiciary in Tanzania.
3.3 Interpretation of the Doctrine of Independence of Judiciary in Tanzania Context

Interpretation according to the Constitution
a) Independence of Judiciary as interpreted by R.T. CJ Honorable Judge Augustino
Ramadhani97.
That independence of judiciary it is the independence of the Judicial Officers to make their own
decision on the matter in hand, without being interfered by either within itself, other organs or
public pressure. He explained it in four circumstances;
i) It includes the independence from the Executive Body on the matter of adjudicating
judicial matters. In which he explained the manners in which the Judiciary Organ can
dispense justice without fear of any other organs or public concerns for instance, the
91
Act No 4 of 2011
92
Sections 13 and 14 of the Judiciary Administration Act No.4 of 2011
93
Section 18 of the Judiciary Administration Act No.4 of 2011
94
Section 35 of the Judiciary Administration Act No.4 of 2011
95
Section 31 and 32 of the Judiciary Administration Act No. 4 of 2011
96
Section 52 of the Judiciary Administration Act No. 4 of 2011
97
Former Tanzanian Chief Justice, Judge of East African Community, Justice of Appeal and currently Judge of
African Court of Human and People’s Right, and Warden of Tumaini University Law Society.
40
issues of Security of Tenure (For Judges of the High Court and Justices of Appeal)98,
Remuneration99, the President can not dismiss any judges without a lawful claim, and
after consultation with the Chief Justice and the Special Tribunal 100, and the President
is bound by the decision made by the Tribunal101.
ii) Independence between the Judicial Official themselves. He argued that, the independence
of the Judiciary cannot be complete if the judicial officers themselves are not
independent. This is regarded from the superior position to the lower position. For
example, he himself when he was the Chief Justice of Tanzania by then, he could not
force any of the judge to proceed with the case or to make a judgment of a case for
him to execute or influencing in any position which could change judge’s mind on a
certain decision on a particular case.
iii) The independence of judiciary against litigation. In any of independence of judiciary it is
a requirement that judges, magistrates and other judicial officers should have
complete protection against criminal prosecution and civil liabilities for exercising
their judicial functions. That means there must be no personal liability, when
executing judicial matters. In order to carry out their functions judges must be secure
in the knowledge that they will not incur liability for what they say or do during their
course of employment.
98
As per Article 110 and 120 of the Constitution
99
As per Article 135 120 of the Constitution
100
Article 110A (3) (a and b) of the Constitution
101
Article 110A (4 and 5) of the Constitution
41
iv) The independence of judiciary must be free from the public interference. In arguing for
this, the case of Republic v. Acp. Abdallah Zombe and 12 Others102, in which the
public concern was to see Zombe found guilty of an offense of murder. The
magazines and newspaper also commented the same. This could lead to the injustice
if the judges preferred to look at the public concerns, as the fact that, “what the public
thinks may not be in legal position”. Therefore, the public in general must leave the
Court as an independent body to deal with it matter so as to ensure justice is
adjudicating.
He further explained a Biblical example of Pilate, that it was because of public interference on
his judgment, Jesus Christ was crucified, even though Pilate did not see any cause of action
against Jesus.
b) Independence of Judiciary as interpreted by Issa Shivji.
He expresses the Independence of judiciary as, the judicial arm of the State exercises judicial
power, that is, dispenses justice. It is the body to which a citizen who feels wronged or aggrieved
can resort to. It must be trusted and accepted by the people, through having legitimacy, out of
fear, favour, and impartially in carrying out their functions 103. From the above description, it
entails that, independence of judiciary is the situation whereby the legitimate judicial body is
independent in executing its functions without fear or favour any party to litigation, and maintain
its impartibility.
102
Criminal Sessions Case No.26 of 2006, High Court of Tanzania at Dar es Salaam.
103
Mkuki Na Nyota Publishers Limited, Dar Es Salaam, Tanzania, page 42-44, 2004.
42
c) Interpretation of the Independence of Judiciary by Chris .M. Peter and H.K.
Bisimba104.
Independence of judiciary, as stipulated in our country’s Constitution and preamble of the
Constitution. They also interpreted the term independence of the judiciary through looking
various quotations of some famous persons in our country. For example, the Father of the
Nation, Mwalimu Julius Kambarage Nyerere 105 who stated that,
himself”106.
Chris .M. Peter and H.K. Bisimba also explained independence of judiciary in terms of
remuneration, terms of service, qualifications, security of tenure, and selection and appointment
of judges, in which the judicial commission is also involved on such practice, which could render
to appointment of good and qualified judges who will serve the justice without fear or an
intimidation.
This is precise, effective and efficient interpretation of the doctrine of the Independence of
Judiciary, due to the fact that it includes all aspects in which the Judiciary can be intervened in
discharging it functions.
104
C. P. Maina, H.K. Bisimba, Law & Justice in Tanzania, Quarter of a Century Of The Court Of Appeal, Mkuki Na
105
Nyerere, Julius K., Freedom and Unity: A selection from Writings and Speeches 1952-1965, Dar es Salaam:
Oxford University Press, 1966, p.131.
106
43
d) Interpretation of the Independence of Judiciary by Wade and Bradley 107.
Wade and Bradley argued independence of judiciary in the light of separation of powers between
the Executive and Judiciary and Legislature and Judiciary. In this, they exposed three questions
which one should ask himself when determining the nature or existence of independence of
judiciary in the legal system of a country.
The concept of independence of judiciary according to Wade and Bradley relies only on
separation of powers. This brought the questions on what about the factors which intimidate the
separation of powers, also the authors did not explain the circumstances in which the court’s
decisions can be intimidated by an individual or individuals. Therefore, the interpretation of
independence of judiciary to them cannot support the above aspects in which it became narrow
and provide loopholes for the other state organs and individuals to interfere with the courts in
determining cases, hence render injustice.
e) Interpretation of the Independence of Judiciary by Peter. A. Oluyede108.
Independence of Judiciary has also been interpreted in terms of separation of powers, that there
is no liberty if the judicial power is not separated from legislature and executive organs of the
state. Where it is joined with the Legislature, the life and liberty of the subjects would be
exposed to arbitral control, for the judge would then be a legislator. Where it is joined with
Legislative power, the judge might behave with violence and oppression. There would be an end
to everything, where the same man or the same body, whether of the nobles or of the people top
107
E.C.S. Wade & A.W. Bradley, Constitutional and Administrative Law, 10th Edition, Longman, New York-1985.
108
P.A. Oluyede, Administrative Law in East Africa, Kenya Literaure Bureau, 1973- Kenya.
44
exercise those three powers that of enacting law, that of executing public relations and of trying
the causes of individuals.
f) Interpretation of Independence of Judiciary according to England and Wales Legal
System.
In relation to the legal system in England and Wales; “Judicial independence was interpreted as
the ability of a judicial officer to conduct their work free from improper pressure by executive
government, by litigants and by particular pressure groups. This fundamental concept of judicial
independence came into being in England in 1701 with the enactment of the Act of Settlement.
This statute formally recognized the principles of security of judicial tenure (holding office
during good behaviour) and the need for appropriate mechanisms to exist for a judge’s removal
(by address by both houses of parliament). Lord Justice Brooke of Court of Appeal England,
cautions that a democratic society, which takes the independence of its judiciary for granted,
does so at its peril.”109 For instance, In England, Independence of judiciary is interpreted in
several ways:
Independence of the executive and the legislature and vice versa; the members of the judiciary
do not get involved in political debate; Judges cannot be removed except on an address passed by
both houses of parliament; Judges are almost entirely immune from the risk of being sued or
prosecuted for what we do, and lastly; Judges are paid large enough salaries to render us free
from the sort of financial worries which might in theory fuel the risk of judicial corruption. 110
109
I. Harden, and N. Lewis, The Noble Lie; The British Constitution and the Rule of Law (London, Hutchinson)
1986.
110
Ibid
45
Independence of Judiciary as interpreted by Honorable Magistrate Consolata Peter
Singano111.
Magistrate Singano’s interpretation on independence of judiciary was not such different from
that of Judge Augustino Ramadhani, except on the fact of Public Interference. According to her
the judiciary must be free, on the following aspects; that the judiciary must be independent on
the reliance of law in providing its decision or judgment 112; the independence in terms of security
of tenure of judicial officers113; the independence in terms of remunerations 114; the independence
against internal affairs (independence among judicial personnel).
The only thing that was missing in her interpretation of independence of judiciary was the aspect
of public interference determining cases or giving judicial decisions. Magistrate Singano argued
that, as long as the law required the judicial body to disperse justice without consideration of any
class or criteria of people 115, then public interference in either a pending case or judgment will
distort the independence of the judiciary. By the way the law prohibits people from discussing a
matter which is still pending in the Court of Law 116.
3.4 Practical in Application of the Doctrine of Independence of Judiciary in Tanzania
The question of separating of the judiciary from the executive organ of the United Republic of
Tanzania is not new for our judicial system. So far many erudite articles written by highly
111
Singano PC, D.C, interview on the Doctrine of Independence of Judiciary in Tanzania, District Magistrate Court,
at Judiciary Square-Iringa, 6th June 2012 at 1533 Hours
112
113
114
Remuneration and Terminal Benefits Act, 2007 11 CAP 16 RE 2002, which provides for the remuneration,
terminal benefits and survivors benefits to persons holding office of Chief Justice, Justices of Appeal and Judges.
115
Article 107A (2) (a) Article 110 (1) of the Constitution
116
at Judiciary Square-Iringa, 6th June 2012 at 1503 Hours.
46
intellectual persons of the relevant fields have been published. But those intellectual exercises
have gone unheeded so far. There were of course commitments of the political parties every time
before the elections. We must seek the reasons why this very important organ of the state has so
far not been given the shape as enunciated in the sacred constitution where the nation has
solemnly affirmed for an independent judicial system117. By looking into the following factors
the independence of the judiciary faces the following weaknesses in its interpretation and
application in the administration of justice in Tanzania;
a) Lack of Consciousness on the Doctrine of Independence of Judiciary
The large number of the people constituting the electorate of our country does not know what
actually means by separation of the judiciary and for that matter what is the bright side of the
proposed separated judicial system. To address these questions we should have at least an
average knowledge of our present judicial system.
Even most of the government officers and judicial officers do not understand well the clear
meaning of the term “Independence of the Judiciary”. Most of them tend to describe it in terms
of independence of judiciary from other Organs of the state, but not the interference from the
public, the executive and the judicial body itself118. This creates lack of consciousness among the
population through which such practice of independence of judiciary is said to be practiced.
117
As Explain by Advocate Rosemary Magalla, in the interview on the, ‘Weakness of Independence of Judiciary in
Tanzania’, at Mvumi Mission-Dodoma, 29th May 2012, 1700 Hours.
118
As it was explained by RT.CJ.Hon. Augustino Ramadhani, in the interview on the, ‘Weakness of Independence of
Judiciary in Tanzania’, at Ouster Bay, Masaki-Dar Es Salaam, 30th May 2012, 1823 Hours.
47
b) Lack of Political Will by the Politicians on the Doctrine of Independence of
Judiciary
It has been a belief that, every kind of meaningful changed political wills is mandatory because
our democratic polity deals by various political parties and the Government formed by citizen’s
mandate with their representatives. Therefore, if the political parties (especially government)
have no interest to separate the judiciary from the executive it would be impossible. Though
most of the political parties are committed to the separation of judiciary but after they form a
new government, they technically evade this commitment. That’s why the process of separation
of the judiciary from the interference and domination of the Government is an endless one 119.
There is no direct political will on the issue of independence of judiciary. Even though our
Constitution clearly stipulates on the existence of Independence of Judiciary120, and clearly
stipulates on the basis of the doctrine of separation of power121, of the personnel of the state
organs122, but still it is through the same Constitution that the politicians have made a way to
interfere the judiciary body.
It has to be understood that, Judges and magistrates had been sworn and committed themselves to
resolve disputes in accordance with the law and not according to political expediency. The Party
has a stronghold on the judiciary through the appointment process because from the very top to the
bottom of the judicial body, the Party either directly or indirectly through its government, has a say
as to who has to be appointed to hold what position in the judiciary.
119
Francis Ramadhani, Advocate, interview on the nature of independence of judiciary in Tanzania, at Mbezi Beach
, Masamaki-Dar Es Salaam, 31st May 2012.
120
121
Article 4 of the Constitution
122
Separation of personnel is absolutely guaranteed in the Constitution by the 2005 amendments of the Constitution
which removed the Chief Justice from acting as a President.
48
In Tanzania judges of the High Court are appointed by the President after consultation with the
Judicial Service Commission123. Also Justices of the Court of Appeal are appointed by the
President upon consultation with the Chief Justice 124. Third, the Chief Justice of the United
Republic of Tanzania is also appointed by the president (who is the Chairman of the ruling
Party)125. The issue is that, the Chief Justice has no prescribed tenure as the Chief Justice, thus the
President can remove him from his position at any time even though he cannot be removed as the
Justice of Appeal. This position is the same to the Principal Judge.
However the power to remove the Chief Justice or the principal Judge has never been used to
undermine the judiciary. Also there is no law in the country which prohibits a President from
appointing judicial officers to hold political positions or to lead various Commissions under the
Executive. It is only provided for the Justice of Appeal, Judges of the High Court, Registrar of any
grade, or Magistrate if any grade to join any political party126, but no restrictions to the President in
appointing a person in two positions on different organ of the state.
At Primary Court level, the appointments of Magistrates are made by the Special Judicial Service
Commission on recommendations from the District Judicial Board which used to be chaired by the
Regional Party Secretary who was also the Regional Commissioner. Also, the Party had a say on
the process of selection of assessors to be paneled both in Primary Courts and the High Court as
well in this situation, there was no way the judiciary could ignore the all-powerful Party127.
123
124
125
126
127
49
Even though, the President after appointing the Chief Justice and other judges has no other
obligations towards them, but the act of him pointing such judges and Justice of Appeals, may
create a fear on those judicial officers on performing their functions towards the matter relating to
the government or the President himself, as the fact that they were appointed by him.
In the case of Ally Juuyawatu v. Loserian Mollel128, the judge of the High Court was harassed by
the act of the Chief Justice calling out of the file of the case on the instructions of the President of
the United Republic of Tanzania and no reasons was given. The court messenger was sent all the
way form Dar es Salaam to Arusha to collect the file he ransacked the chambers of the Judge like a
common criminal's house. Later he found the relevant file just on the Judge's table. It was returned
a few days later undisturbed in an envelope addressed to the Judge personally. The Judge withdrew
from the case following this harassment.
In this case, the good thing is that the judge decided to withdraw himself to try the case, what if the
judge would decide to hold the case in the way that would render injustice? It is the concentration
of power to the President that led the president to decide on whatever comes into his mind, in
which that would put the judiciary body in difficult position to render a fair and just decision to the
public.
We know that the President cannot exercise his powers whatever, without the advice of the Prime
Minister, accept of course his power to appoint the Prime Minister. This is how the executive organ
of our state is controlling the judiciary. Their appointments, postings, transfers, promotions,
punishments and others are at the hands of the President or for that matter, the government 129.
128
(1979) LRT No. 6
129
Article 113(2, 3, and 4) of the Constitution
50
c) Lack of Interaction with Other Courts on Independence of Judiciary.
Lack of interaction of the judges in Tanzania with their counterparts in other countries is a
possible factor for their insular understanding of law. The courts’ scarce resources limit the
opportunities for such interaction, and the very limited judicial interaction with foreign courts,
when it does occur is arranged in hierarchical order. This means that older judges, who are usually
less amenable to fresh ideas and have less time left on the bench, undertake such interactions most
often, receiving the most limited results possible. This result to the lack of the new ideas on the
doctrine of independence of judiciary in Tanzania. As stated by R.T.CJ Honorable Judge
Augustino Ramadhani, that, even some of the Judicial Officers they do not understand well the
clear meaning of the judiciary independence, therefore this lack of interaction between Tanzanian
Judges and others from other countries continuing to create a weakness on the doctrine of the
independence of judiciary in Tanzania, as the fact that these judges and magistrates will not
introduce something new into their mind which is concerning, the doctrine of independence of
judiciary.
d) The case of Remunerations and security of tenure for Magistrate.
In the independence of judiciary in Tanzania, remuneration and security of tenure are two factors
which are connected to each other. In order for a judge to perform his duties well, there must be
good remuneration, and in order for a judge to claim for a good remuneration, there must be a
security of tenure. A judicial officer must be ensured the protection of his employment for
whatever decided by him as long as it is in accordance with the law, either Constitution or any
51
other laws of the land 130. As we have seen in the Constitution, matters relating to remunerations
and security of tenure and other benefits in respect of subordinate courts Magistrates are not
stipulated in the Constitution. The Constitution explains only the security of tenure of judges and
of justice of appeals131 but no security of tenure explained for the magistrates in the subordinate
courts132. This affects the doctrine of independence of judiciary, due to the fact that it creates a
tendency of superiority over one another, from judges and justice of appeals to the magistrate in
the lower courts.
One among the ways of being independent in the judiciary system is internal independence that
is to say to maintain the independence between judicial officers in the judiciary body. The
Higher Rank to respect the Lower Rank, both in terms of Court ranks (High Courts to Magistrate
Courts), and professional ranks, from the Chief Justice, Judges, Justice of Appeals to Magistrates
in the lower courts. This act of the Constitution to exclude explaining the remunerations and
security of tenure of the Magistrate, creates biasness which tends to defeat the purpose of the
doctrine of independence of judiciary that is internal independence which could be disturbed by
the sense of justice of appeals and judges feeling superior than the Magistrates in the lower
courts, thus there will be no internal independence in the Judiciary Body133.
130
As explained by Magistrate C. P. Singano, in the interview on, ‘the Doctrine of Independence of Judiciary in
Tanzania’, District Magistrate Court, at Judiciary Square-Iringa, 6th June 2012 at 1435 Hours.
131
132
133
Ltd, 2007-05-28 10:54:48- Dar es salaam, Tanzania.
52
3.5 The Frictions for Disparities in Interpretations of the Doctrine of
Independence of Judiciary
In our study on various interpretations of the term independence of judiciary, we found out that
there are controversies as to what amounts to independence of judiciary. Some of the legal
practitioners refer to independence of judiciary to mean only the aspect of interference by other
organs of the government. Others did not speak on the aspect of internal interference that exists
among the judicial personnel. There are others who speaks on the separation of power and others
on the public interference.
Most important and common conflict is the exclusion and inclusion of the term public
interference in the interpretation of independence of judiciary. There are almost two interested
interpretations of the term independence of judiciary made by Honorable Judge Augustino
Ramadhani134, and Honorable Magistrate Consolata Peter Singano 135.
Augustino J, in the interview, recommends on the importance of including the term Public
Interference when defining and interpreting the term independence of judiciary. Further
136
arguments were made in the case of the Republic v. Acp. Abdallah Zombe and 12 other that,
the public pressure incriminates Zombe, by thinking that Zombe was guilty of the said offenses,
but things were different. It is from this public pressure that, in one way or another may interfere
with court’s decisions to disperse justice.
134
Former Tanzanian Chief Justice, Judge of East African Community, Justice of Appeal and currently Judge of
African Court of Human and People’s Right, and Warden of Tumaini University Law Society.
135
at Judiciary Square-Iringa, 6th June 2012 at 1503 Hours
136
Criminal Sessions Case No.26 of 2006, High Court of Tanzania at Dar es Salaam.
53
Magistrate Consolata Peter Singano 137, included all other aspects of independence of judiciary
such as, the judiciary must be independence on the reliance of law in providing its decision or
judgment138, independence in terms of security of tenure of judicial officers 139, the independence
in terms of remunerations140 and the independence against internal affairs (independence among
judicial personnel).
The only thing that was missing is the aspect of public interference to the either cases or judicial
decisions. Magistrate Singano argued that, as long as the law required the judicial body to
disperse justice without consideration of any class or criteria of people 141, then the public
interference in either a pending case or judgment will affect the independence of the judiciary by
influencing or pressuring the judiciary in passing their judgment hence liquidation or violation of
the doctrine of independence of judiciary.
Therefore, in these two interpretations, it is evidenced that there is a contraction on the aspect of
independence of judiciary. And this friction or disagreement is resulting from a disparity that
existing between the legal professionals on the interpretations of the term judiciary independence
that is cause by the nature of the provision of the constitution being too wide and uncertain.
Hence, creating a room for controversies and contradictions a thing which in the end results in
these frictions.
137
at Judiciary Square-Iringa, 6th June 2012 at 1503 Hours.
138
139
140
Remuneration and Terminal Benefits Act, 2007 11 CAP 16 RE 2002, which provides for the remuneration,
terminal benefits and survivors benefits to persons holding office of Chief Justice, Justices of Appeal and Judges.
141
Article 107A (2) (a) Article 110 (1) of the Constitution
54
3.6 The Implications of Narrow Interpretations of the Doctrine of Independence of
Judiciary in Administration of Justice in Tanzania
a. Limiting the Scope of Independence of Judiciary.
For the doctrine of Independence of Judiciary to be effective, its scope should be wide enough to
encompass all the aspects that would lead to the liquidation or undermining the doctrine such
that poverty, insecurity of employment or employment benefits, political influence and
interference from other organs of the Government such that the Legislature and Executive.
Judicial officers particularly judges and magistrates are still lowly remunerated, a thing which
exposes them to poverty and risk of being corrupt. It is absurd to promote independence of the
judiciary if the judicial officers are not well paid142. A lesson which we should learn from
England is that, better remuneration is one of the ways of promoting the doctrine of
independence of judiciary in any country particularly a poor developing country like Tanzania.
It is also a revealed fact from this study that, in most cases, among the things which are not
included in the list of things which should be done or considered when promoting the doctrine of
independence of judiciary is the issue of security of employment benefits. In most cases,
reference has always been made on security of employment that has been approved or assured by
the Constitution and the other laws, but the issue of security of employment benefits is still under
wraps.
142
55
Thus magistrates in most cases are induced or influenced in their decisions so as to secure their
employment benefits such that being promoted, being granted bonus allowances and others like.
This shivers and weakens the independence of the judiciary 143 in Tanzania.
b. Allowing unnecessary interference from external factors.
Political influence is also another aspect that has been left out which has a negative impact on
independence of judiciary in Tanzania. In order for the Judiciary to be independent, all matters
that affects the organ should be left out for the members of the judiciary to decide on their own.
Upon the enactment of the Judicial Administration Act 144, there was established a Regional and
District Judicial Officers Ethics Committee which comprises of, among others, the Regional and
District Commissioner respectively as the Chairpersons of the Committees. Their existence in
the committees defeats the whole purpose or concept of independence of the judiciary.
Despite the fact that most of the politicians and even some judges says that it is a way to assure
checks and balance or proceed with the tradition that existed since the colonial period, but in the
contemporary society, this practice tends to affect or will tend to affect the independence of
judiciary. This is because these political leaders that form the Ethics Committees are members of
the Executive and the Ruling Party hence their presence is there to serve the interest of the
Executive Arm of the Government and/or Ruling Party145.
143
Ibid.
144
Judicial Administration Act No. 4 of 2011
145
56
3.7 Conclusion
Upon conclusion of this chapter, we found out that, there are some weaknesses on the
interpretation and application of the doctrine of independence of judiciary in Tanzania. There is
different interpretation of the Doctrine of the Independence of Judiciary which is basically
caused by the generality of the concept of the independence of the judiciary in Tanzanian context
that is provided for and protected by our Constitution.
The generality of Article 107B of the Constitution has resulted into different legal scholars to
perceive the doctrine of independence of judiciary differently. Some of them interpreting it in
regards to internal factors influencing the judiciary, and some looking on the aspect of public
interference on the judiciary, thus creating a huge confusion on what to be considered as the best
interpretation of the independence of judiciary.
57
CHAPTER FOUR
CONCLUSION AND RECOMMENDATIONS
4.1 Introduction
The aim of this research was to assess the nature of “Independence of Judiciary and
Administration of Justice in Tanzania: A Critical Assessment of its Interpretation and Practical
Application by the Courts in Tanzania.”. To achieve the aims and objectives of this research, we
had to make a thorough study on several books and articles, several legal sources including the
Constitution of United Republic of Tanzania 1977 as amended hereafter and also to conduct
several interviews with legal practitioners such as Advocates, Magistrates and Judges. Thus it is
through these sources of data and information that this research has become a great success.
4.2 Conclusion
Throughout the discussion in this study there is a variety of possible explanations for the
persistence on the weakness of the interpretation and application of the doctrine of independence
of judiciary in Tanzania. Independence of judiciary has been receiving different interpretations
from different legal scholars. The main cause of this disparity is the generality of Article 107B
of the Constitution of United Republic of Tanzania 1977 as amended hereafter. The
interpretation of the aforementioned provision is too general and hence it does not give specific
factors that must be followed in assessing the interpretation and application of the doctrine of the
independence of judiciary in Tanzania. Therefore, the rules that laid down the independence of
judiciary in Tanzania have become insufficient and ineffective; the insufficiency of these rules of
independence of judiciary have posed as the sources of weakness or failure of the doctrine of
58
independence of judiciary in the administration of justice in Tanzania, and the reactions of the
state over these insufficient rules have yet not been well addressed to remedy them.
4.3 Recommendations
The research shows that, different interpretations of independence of judiciary have significant
effects in the interpretation and application of the doctrine of independence of judiciary in
Tanzania, as it leads to non-uniformity in interpreting the doctrine of independence of judiciary
in Tanzania hence affecting its proper application in the administration of justice in the country.
Based on the above factor, in order to ensure that there is effective interpretation and application
of independence of judiciary in Tanzania, we recommend that;
The Constitution of the United Republic of Tanzania of 1977 as amended hereafter, undergo
some amendments particularly on the provision of the independence of judiciary so as to
stipulate clearly by particularizing the scope of the said independence of Judiciary;
To review the laws which allows member of the executive organ of the state to be part in the
judicial ethics disciplinary committees. We acknowledge the importance of checks and balance
in the organs of the government but this should not be in the actual conducts and fulfillment of
the duties of the members of the judiciary For instance, the aspect of Regional Commissioners
and District Commissioner to be the Chairpersons of the Regional and District Judicial Officers
Ethics Committee tends to defeat the importance of independence of the judicial because the
Regional Commissioners and District Commissioner are political leaders and also members of
the executive, hence distort the effective application and operation of the doctrine of
independence of judiciary. Thus we recommend that the Judicial Administration be reviewed and
59
amended by removing the Regional Commissioners and District Commissioners from the
Judicial Officers Ethics Committees;
As the facts shows, insufficient remuneration to the magistrates and judges creates a vulnerable
environment to them to be induced or influence in the decision making. This is an indirect way
of denying or destroying the independence of judiciary in Tanzania. Hence, the Government of
Tanzania should consider providing better remuneration to these officers and other court officers
in an attempt of paying adherence to Article 107B146 which emphasizes on the Independence of
judiciary.
Hence, in the contemporary society where there is a lot of corruption practices, political
influence as well as interference or intervention from the executive arm of the government, the
legislature and the public at large, all affecting the fair and just administration of justice in
Tanzania, the Judges and Magistrates really have to be firm and strong enough to withhold and
overcome all these challenges that tends not only to wear down the independence of the
judiciary, but also destroy the faith that the society has in the Tanzanian Legal System.
It is therefore duty of the Government, the public and the members of the Judiciary themselves
to protect and preserve the independence of judiciary for the maintenance of peace and order in
the country. This is because the impact of the society losing faith in their legal system will result
into chaos and unrest which will be caused by people seeking justice through their own hands.
146
Of the Constitution
60
BIBLIOGRAPHY
Text Books
Bernett, H., Constitutional and Administrative Law, 4th Edition, Cavendish Publishing Limited,
Sydney, Australia-2002.
Blackstone, W., Commentaries on the Law of England, Volume 1, 1978, Garland Publishing Inc,
London. Being a Reprint of the 1783 Edition Printed For W Strahan, T Cadd And D Prince,
Oxford.
Bowen and Drinker, C., The Lion and the Throne: The Life and Times of Sir Edward Coke,
Boston: Little, Brown and Company, 1957.
Flatto, D.C., The Historical Origins of Judicial Independence and Their Modern Resonances,
117 Yale L.J. Pocket Part 8 (2007).
Maina, C.P. & Bisimba H.K., Law & Justice in Tanzania, Quarter Of A Century Of The Court
Of Appeal, Mkuki Na Nyota-2007, Tanzania.
Mcclellan, J., Origins of Judicial Independence - Liberty, Order, and Justice: An Introduction To
The Constitutional Principles Of American Government [1989].
Milton, Defence of the People of England, England, 1651.
Mollah, A. H., Separation of Judiciary and Judicial Independence in Bangladesh, University,
Rajshahi-6205, Bangladesh-2004.
Montesquieu, the Spirit of Laws 202, (David Wallace Carrithers Edition, 1977) (Book Xi,
Chapter 6, Paragraphs 5, 6)-1748, Geneva, Switzerland.
Oluyede, P.A., Administrative Law in East Africa, Kenya Literature Bureau (1973), Kenya,
1986.
Shivji, I.G., Majamba, H. I., Makaramba R. V. & Peter C. M., Constitutional and Legal System
of Tanzania, Mkuki Na Nyota Publishers Limited, Dar Es Salaam, Tanzania, 2004.
Wade, E.C.S. & Bradley, A.W., Constitutional and Administrative Law, 10th Edition, Longman,
New York.
61
Articles
K. Keregero, Attributes of the doctrine of Independence of the Judiciary, The Guardian
Newspaper on Web, 2007-05-28 10:54:48 http://www.ippmedia.com/index.php. Why
nd
independence of judiciary not absolute.htm (2 April, 2012)
Chris Maina, Independence of Judiciary in Tanzania: Many Rivers to Cross, 2006.
<http://www.kituochakatiba.org/index2.php> (2nd April, 2012)
Internet Sources
http://ww.judiciary.go.tz/extrated-30th March 2012, 1530 hours. The History of Judiciary in
Tanzania.
62

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INDEPENDENCE OF JUDICIARY AND ADMINISTRATION OF JUSTICE IN

TANZANIA: A CRITICAL ASSESSMENT OF ITS INTERPRETATION AND

A RESEARCH THESIS SUBMITTED IN PARTIAL FULFILLMENT OF ACADEMIC

AT TUMAINI UNIVERSITY IRINGA UNIVERSITY COLLEGE

[CASE STUDY: TANZANIA MAINLAND]

ADRIAN NDUNGURU (Mr.)

A RESEARCH THESIS SUBMITTED IN PARTIAL FULFILLMENT OF ACADEMIC

AT TUMAINI UNIVERSITY IRINGA UNIVERSITY COLLEGE

IRINGA UNIVERSITY COLLEGE

any other degree award.

1. NAME: ……………………………… SIGNATURE:……………………..

THIS ……………..DAY OF………….2012

2. NAME: ……………………………… SIGNATURE:……………………..

THIS ……………..DAY OF………….2012

University of Tumaini-Iringa College a research paper entitled: Independence of Judiciary and

Administration of Justice in Tanzania: A critical Assessment of its Interpretation and Practical

Bachelor of Laws (LL.B) of Tumaini University at Iringa.

ADRIAN NDUNGURU (Mr.)

© Tumaini University-Iringa 2012.

Mr. and Mrs. Magalla and Family

Mr. and Mrs. Robert Noel Mandawa and Family

our studies and this research.

implementation, of the doctrine of independence of judiciary in the promoting administration of

Courts in Tanzania”, hence research will be divided in four main chapters.

justice in Tanzania, advantages of the doctrine and finally the conclusion.

interpretation of the doctrine of independence of judiciary in Tanzania. And to wind up the

sometimes command it to comply with their decisions.

The Judiciary Administration Act No. 4 of 2011.

The British Act of Settlement, 1701

The Judicial Service Act CAP 23 R.E. 2002

Republic v. Idd Mtengule, Criminal Revision No.1 of .1979.

Court of Tanzania at Dar es Salaam.

Republic vs. John Kasella Bantu, (1969) HCD 170

ACP -Assistant Commander of Police

HCD -High Court Digest

ICCPR - International Covenant on Civil and Political Rights

LL.B -Le Legum Baccalaureus

TLR -Tanzania Law Reports

URT -United Republic of Tanzania

1.1 Background of the Problem........................................................................................................... 1

1.2 Statement of the Problem ............................................................................................................. 9

1.3 Aims & Objectives of the Study ................................................................................................... 13

1.4 Significance of the Study ............................................................................................................. 13

1.5 Study Hypothesis ........................................................................................................................ 15

1.6 Literature Review ........................................................................................................................ 16

1.7 Research Methodology ............................................................................................................... 20

1.8 Scope and Limitations of the Study ............................................................................................. 23

OVERVIEW OF THE DOCTRINE OF THE INDEPENDENCE OF JUDICIARY IN TANZANIA

2.1 Introduction ................................................................................................................................ 24

2.4 Advantages of Independence of Judiciary in Tanzania ................................................................ 35

THE ASSESSMENT OF INTERPRETATION AND APPLICATION OF THE DOCTRINE OF INDEPENDENCE OF

3.1 Introduction ................................................................................................................................ 38

3.2 The Laws Governing Independence of Judiciary in Tanzania ....................................................... 39

3.3 Interpretation of the Doctrine of Independence of Judiciary in Tanzania Context ..................... 40

Interpretation according to the Constitution .................................................................................. 40

3.4 Practical in Application of the Doctrine of Independence of Judiciary in Tanzania ..................... 46

3.6 The Implications of Narrow Interpretations of the Doctrine of Independence of Judiciary in

3.7 Conclusion ................................................................................................................................... 57

CONCLUSION AND RECOMMENDATIONS

4.1 Introduction ................................................................................................................................ 58

4.2 Conclusion ................................................................................................................................... 58

4.3 Recommendations ...................................................................................................................... 59

doctrine of the independence of judiciary in the administration of justice in Tanzania.

1.1 Background of the Problem