TOPIC IV NOTES

This topic is about the place of administrative law in Tanzania

ADMINISTRATIVE LAW IN TANZANIA

Content

 Introduction
 Objectives
 Body
o The Place of Administrative Law in Tanzania
o Study Cases

 Summary

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1.1 Introduction

Topic I under Module I started by looking at the development of administrative law in the context of
English practice. As it can recalled from the history, Tanzania was once a British colony and later
became her protectorate so the existing legal system is also a consequence of such rule. The
development of administrative law in the country is not different from the English practice but there
is a need to look at how it actually developed and what has become of its position.

1.2 Objectives

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At the end of this topic you should be able to: 

 Trace the historical acceptability of administrative law by the public at its inception in our
legal system

 Identify and explain the legal rules found in court’s decisions on different aspects of
administrative law

1.3 Body

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 The Place of Administrative Law in Tanzania

o General Overview

It is quite some time that administrative law in Tanzania had largely been regarded by law students as
being purely academic, and that the general public viewed it as a subject with little relevance to their
everyday lives. This was certainly the position during the colonial period and soon following the
years after independence. During the colonial regime, it was almost unthinkable for may , although
not all, that an individual could challenge the constitutionality of the a statute or the legality of a
subsidiary legislation or to even challenge a decision of a public functionary or body , let alone a
decision by the president of the United Republic of Tanzania[B.D Chipeta(2009), “Administrative
Law in Tanzania: A Digest of Cases” ](Emphasis supplied)

That being the attitude, this branch of law assumed, and remained in, a back seat for many years.
Though there were few enlightened and spirited individuals who resorted to it when their rights were
violated or threatened.

One of the cases that can easily spark into mind is the case of De Souza v Tanga Town Council
[1961] EA 337. In this case the appellant was dismissed by his employer, Tanga Town Council, but
the procedure of dismissing an employee as laid down in the staff regulations as well as rules of
natural justice were not followed. his application for orders of certiorari and mandamus were
dismissed by the high court which held that the fact that the person who filed the complaint against
the appellant had sat in the Traffic Fire Committee (which had initially deliberated on the complaint)
and the fact that the person had later conferred with the appeal committee in the absence of the
appellant, did not prejudice the appellant. On an appeal to the Court of Appeal for Eastern Africa, the
court allowed the appeal on grounds that the laid down procedures were not followed, that a tribunal
must act fairly, in good faith and fairly listen to both sides; that the person accused must be told the
nature of the accusation against him, and, above all; that if principles of natural justice are violated in
respect of any decision, it is immaterial whether the same decision would have been arrived at the
absence of departure form the essential rules of natural justice. The court in that case was, in fact,
reiterating the principle laid down by Lord Wright in the English case of General Medical Council
v Spackman (1943) AC 627, in which he said:

“If principles of natural justice are violated in respect of any decision, it indeed immaterial whether
the same decision would have been arrived at in the absence of the departure from the essential
principles of natural justice.”

Another case worth mentioning during this period is the case of Re: Bukoba Gymkhana Club
(1963) EA 478. In this case the facts were that a liquor licensing board had refused to renew the
clubs liquor license without giving the club an opportunity to be heard. The reason given by the
board for its refusal was that the clubs constitution was largely discriminatory in that it had a
provision to the effect that an application for membership had to be proposed and seconded by the
members. in an application for certiorari and mandamus, the high court granted the application
holding that as a body charged with legal authority to determine questions affecting the rights of
subjects, the board had a duty to act judicially that the club was not given an opportunity to present
its case or meet the board objections that the board acted unreasonably as the refusal was on
imaginary grounds and that the board was influenced by extraneous considerations.

The cases so mentioned above are the least examples and it suffices to say, on the base of them, that
the position has dramatically changed over the past two decades. It is undisputed fact there has been
an increasing number of cases involving administrative law. Many individuals or entities have
recently challenged the constitutionality or legality of acts of parliament, government decisions, and
decisions of public bodies having authority to decide questions affecting the rights of citizens in
courts of law. The case of Sheikh Abdullah v The Regional Police Commander, Dare s Salaam and
Others (1985) TLR 1 is a good example on this point.

In this case the President of the United republic of Tanzanian had made an order that the applicant
should be deported to Zanzibar from Tanzanian mainland, that is, Tanganyika, under section 2 of the
Deportation Ordinance ( now act). The applicant made an application in the high court which was in
the nature of habeas corpus to challenge the order on the ground that the president had exceeded
his powers under the said law. In granting the application, the court held, among other things that, a
decision or order of the executive will be pronounced as illegal by the court if such decision or order
is ex-facie bad, or where the executive has acted with excess of powers or failed to comply with
requirements thereof, or where the executive has acted in bad faith or has committed a breach of
natural justice. The court further added that the president’s order was “gravely flawed” in that the
term “territory” as used in the act is defined in section 3 of the interpretation of laws and general
clauses act as meaning “Tanganyika “, and so the statute did not empower the president to deport a
person to Zanzibar but empowered him to deport a person form one part of Tanganyika to another
part of Tanganyika. This case demonstrates to the layman that is a fallacy to say that the president
can do no wrong. [B.D Chipeta(supra)]

A second high profile case in the 1980s was the case of John Byombalirwa v. The Regional
Commissioner and Regional Police Commander, Bukoba (1986) TLR 73.

The back ground facts of the case were that, in 1983, parliament passed two acts, namely, the
economic sabotage (special provisions) acts No s 9 and 10. These were enacted following a
government decision that all economic saboteurs should be arrested and their properties seized. Such
people were tried by a special Tribunal. It was the duty of the Regional Branch of Government to
decide who should be arrested for being an economic saboteur. That meant that it was the Regional
Commissioners and their subordinates who were to implement that law. In the course of
implementing that law, the applicant was arrested and most of his property was seized. He was
charged before the special tribunal with the offence of hording. In the end he was acquitted by the
special tribunal and the special tribunal ordered that the applicant’s properties or their value be
restored to him. Despite the special tribunals order and the applicants request to the respondents,
those properties were not returned to the APPLICANT. The applicant then filed an application in the
high court for an order of mandamus. In his ruling/ order granting the applications, which reads more
of a thesis, the learned judge exalted judicial review as an important weapon in the hands of judges of
this country by which an ordinary citizen can challenge an oppressive administrative action.[B.D
Chipeta(supra)]. He dwelt at length on the changes that were taking place in the field of
administrative law and the need for judges to keep abreast with those changes so as to protect the
rights of the citizens against the abuse of power which is entrusted to those who have a public duty to
decide on the rights of the citizen. He also took the opportunity to state the conditions which
ordinarily have to be proved for an order of mandamus to issue, but he was quick to add that those
conditions were not immutable sine they were made by judges and so judges can change them so as
to suit changing circumstances in order to effectively protect individual citizens from oppressive
action and that the existence of an alternative remedy is not necessarily a bar to the granting of
prerogative orders.

History tells us that 1990’s saw an even greater spate of high profile cases involving administrative
law. It is worthwhile to examine a few of them. One such case was that of DPP v. Daudi Pete (1993)
TLR 22. That case was, as the court of appeal of Tanzania pointed out in its judgment, one of the
first three cases to reach the court of appeal since fundamental rights and duties embodied in the
constitution of the United Republic of Tanzania by the provisions of section 5 (2) l of the
Constitution (consequential Transitional,. and Temporary Provisions) Act, 1984 became enforce
able. The case concerned the right to be granted bail in criminal cases, and the submissions in the
high court raised the question of the constitutionality of some of the provisions of the Act then under
consideration. The facts of the case, in brief, were that the respondent was charged before the district
court with the offence of robbery with violence. His application for bail in that court was refused on
the ground that the provisions of section 148 (5) (e) of the criminal procedure Act, 1985 did not
permit the granting of bail to accused persons in such cases. The law provided that a person shall not
be admitted to bail if the acts or any of the acts constitution the offence with which the person is
charged consists of a serious assault causing grievous harm or threat of violence to, another person,
or having or possessing a firearm or an explosive. The respondent then applied for bail in the high
Court. The High Court granted him bail and went on to strike down the whole of section 148 of the
Act for being unconstitutional. The director of public prosecutions then appealed to the court of
appeal. In dismissing the appeal albeit for somewhat different reasons, the Court, after considering
the provisions of articles 13 (2), 15 (2) , 30, and 31 of the constitution of the United republic of
Tanzanian as well as section 148 (4) and (5) of the criminal procedure Act, held that section 148 (5)
(e) of the Act was violative of article 15 (2) (a) of the constitution in that it did not fall wholly within
the parameters of article 30 of the constitution because any piece of legislation which falls within the
parameters of article 30 of the constitution is valid, notwithstanding that it may be violative of basic
rights of an individual. The court concluded that the paragraph under consideration was so badly
drafted that it protected the society by endangering the society. The court accordingly struck it out of
the statute book for being violative of the constitutions.

One of the high profile cases reported in the 1994 Tanzania law reports that deserves mention is the
case of James Gwagilo v. Attorney General (1994) TLR 73. The facts in that case were that the
plaintiff was senior civil servant. He was charged with an offence under the economic and organized
crime control Act, 1984 but was acquitted. Thereafter, disciplinary proceedings were instituted
against him which also ended in his favour. After that the president of the united republic of
Tanzanian ordered that he be removed from office in the public interest. The plaintiff then filed a suit
to challenges that order. In preliminary objection, it was sub matted on behalf of the attorney general
that the president could remove a civil servant form office in the pubic interest and at his pleasure,
and that such act could not be inquired into by any court. The high county overruled the objections
holding, inter alia, that the president prerogative to dismiss a civil servant at his pleasure or will had
been abrogated by the provisions of the civil service Act, 1962, and that the president could only
dismiss a civil servant in the public interest in accordance with the provisions of section 20 (3) of that
Act and that in nay case, reasons must be given.[B.D Chipeta(supra)]

In this case, the court referred to many local and foreign cases as well as eminent authors. The
English case of Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374 was one
of the cases referred to. In this case, three broad heads were stated as grounds on which
administrative action is subject to control through judicial review; “illegality”, “irrationality “and “
procedural impropriety”.

1.4 Summary

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The development of administrative law in Tanzania has, as it was under the common law, come a
long way. The study still faces challenges in some areas but at least it has come to act like a
moderator to the functioning of the government

Last modified: Friday, 20 January 2017, 3:27 PM