RELEVANCY OF JUDICIAL REVIEW IN PROTECTING

CITIZEN’S RIGHTS AGAINST ARBITRARY

ADMINISTRATIVE ACTION:

A CASE OF HIGH COURT OF TANZANIA

 RELEVANCY OF JUDICIAL REVIEW IN PROTECTING
CITIZEN’S RIGHTS AGAINST ARBITRARY
ADMINISTRATIVE ACTION:

A CASE OF HIGH COURT OF TANZANIA

By:
Iddi Amidu Mtiginjola

A Dissertation submitted in Partial fulfilment of the Requirement for the

Award of the Degree of Master of Public Administration (MPA)
of Mzumbe University

2014
 CERTIFICATION

We, the undersigned, certify that we have read and hereby recommend for
acceptance by the Mzumbe University, a thesis entitled Relevancy of Judicial
Review in Protecting citizen’s rights Against Arbitrary Administrative Action; A
case study of High Court of Tanzania, in partial fulfillment of the requirements for
award of the degree of Master of Public Administration of Mzumbe University.

_______________________________
Major Supervisor

_______________________________
Internal Examiner

Accepted for the board of__________________________

________________________________________________________
DEAN/DIRECTOR, FACULTY/DIRECTORATE/SCHOOL/BOARD

i
 DECLARATION
AND
COPYRIGHT

I, Iddi Amidu Mtiginjola declare that this thesis is my own original work and that it
has not been presented and will not be presented to any other university for a similar
or any other masters degree award.

Signature_____________________

Date_________________________

Copyright @ 2014
This dissertation is a copyright material protected under the Berne Convention, the
Copyright Act 1999 and other internal and national enactments, in that behalf, on
intellectual property. It may not be reproduced by any means in full or in part, except
for short extracts in fair dealings, for research or private study, critical scholarly
review or discourse with an acknowledgement, without the written permission of
Mzumbe University, on behalf of the author.

ii
 ACKNOWLEGEMENT

I wish to express my sincere gratitude to the almighty God for giving me this special
opportunity to perform this work. It could be not possible to accomplish it without
his assistance.

I wish to express my profound gratitude to my major supervisor Mr. Thobias

Mnyasenga of Mzumbe University for his intellectual stimulation, guidance and
valuable comments without which this work would have been difficult to be
accomplished. I really appreciate his assistance and support in this work. May
almighty God bless you in abundant.

From the bottom of my heart I would like to thank much my dear wife Vicky
Sindyanga Ngwakufika Mtiginjola for supporting me morally during the whole
period I have studied at Mzumbe University as a student of Master of Public
Administrative. To her I say God bless you. I would also like to express my thanks to
my dear sister Asha Amidu Abdalla Abdulfatahi, my brother Mussa Mdege
Mtiginjola for their moral support from which I got encouragement and energy to
continue with my studies all the time I have studies at Mzumbe University. God bless
you all.

Moreover I would like to express my special thanks to Mr. Issa Simon Mwakifwange
and his wife Njemo Sindyanga Ngwakufika Mwakifwange. Without forget Miss.
Saada Mbegu and Agness Victor Mtua for their contribution in assisting me morally
in the whole time of my study at Mzumbe University. Their corporation played a
great role making my dreams on studying master degree to be true. God bless you all.
I would also like to express my thanks to the Honorable Judges of the High Court of
Tanzania for allowing me to conduct my study in the High Court Libraries selected.
God bless you for what you have done to me.

iii
Nevertheless, I would like to express my thanks to class mates (MPA-2014)
especially my group discussion member for their encouragement and different
contribution on different matters pertaining to my study. God bless u all.

This research project is the product of many people. Those whose names do not
appear here are granted assurance that their assistance and contributions will remain
valued and appreciated forever. Though I received immense assistance from many
people to accomplish this research paper, the entire shortcomings which may appear
in it are entirely mine.

iv
 DEDICATION

I wish to dedicate this work to my beloved father and mother, Amidu Abdalla
Mtiginjola and Fatuma Musa Fikirini respectively for the love, prayers, and moral
support in making my dream reality. I will always love you and cherish your love.

I would also like to dedicate this work to my family members; my Children, Mariam
Mahamudu, Haroon and Amini, my beloved sisters Mariamu, and Zubeda Amidu
Mtiginjola without their patience and perseverance; it would have been difficult to
pursue my studies successfully. God bless you.

v
 LIST OF ABBREVIATIONS

AG : Attorney General
Art : Article
BRDEA : Basic Rightts and Duties Enforcement Act
CA : Court of Appeal Of Tanzania
CAP : Chapter
CJ : Chief Justice
CURT : Constitution of the United Republic Of Tanzania
CHRGG : Commission for Human Right and Good Governance
GPA : Government Proceedings Act
H/C : High Court of Tanzania
J : Judge
JJ : Judges
KB : King ’s Bench
LEAT : Lawyer’s Environmental Action Team
LHRC : Legal and Humam Rights Centre
NOLA : National Organization for Legal Assistance
R:E : Revised Edition
TBC : Tanzania Broadcasting Corporation
TLR : Tanzania Law Reports
V : Versus

vi
 ABSTRACT

Judicial review of administrative action is perhaps the most important development

in the field of public Law in the second half of this century. Judicial review is a great
weapon in the hands of judges. It comprises the power of a court to hold
unconstitutional and unenforceable any law or order based upon such law or any
other action by a public authority which is inconsistent or in conflict with the basic
law of the land.

This study was conducted with the main objective of examining the relevancy of
judicial review in protecting the citizen’s rights against arbitrary Administrative
action. Several specific objectives and research questions were made to meet the
main objective. Through documentary review and analysis of cases as well as in-
depth interviews and questionnaire survey the research revealed that judicial review
has so far played a remarkable role in protection of individual rights against arbitrary
administrative action but its relevance is less significant due to lack of awareness to
the majority of citizens on the way to challenge administrative action through
judicial review; high costs of instituting proceedings against the government due to
the fact that majority are poor; hence unable to hire advocates; cumbersome
procedures or technicalities to access the courts for redress; the High Court being the
only institution to hear judicial review applications limiting the access to justice for
individuals in remote areas; corruption on party of the judiciary; luck of reliable
enforcement mechanism of the judicial review remedies; and negative perception of
the people on the judiciary as an institution that can effectively protect their rights
against arbitrary administrative action through judicial review.

It is recommended that these challenges and problems be addressed with

immediately so as to make judicial review relevant in protection of individual rights
against arbitrary administrative action.

vii
 TABLE OF CONTENTS

CERTIFICATION ........................................................................................................ i
DECLARATION AND COPYRIGHT........................................................................ii
ACKNOWLEGEMENT ............................................................................................. iii
DEDICATION ............................................................................................................. v
LIST OF ABBREVIATIONS ..................................................................................... vi
ABSTRACT...............................................................................................................vii
CHAPTER ONE ........................................................................................................ 1
INTRODUCTION AND BACKGROUND INFORMATION ............................... 1
1.1 Introduction ............................................................................................................ 1
1.2 Background Information ........................................................................................ 2
1.3 Statement of the problem ....................................................................................... 4
1.4 Research Objectives ............................................................................................... 5
1.4.1 General objective ................................................................................................ 5
1.4.2 Specific objectives .............................................................................................. 5
1.5 Significants of the study......................................................................................... 6
1.6 Research questions ................................................................................................. 6
1.7 Scope of the study .................................................................................................. 7
1.8 Limitations and delimitations of the study............................................................. 7
1.9 Organization of the study ....................................................................................... 8
CHAPTER TWO........................................................................................................9
LITERATURE REVIEW ......................................................................................... 9
2.1 Introduction ............................................................................................................ 9
2.2 The Concept of Judicial Review ............................................................................ 9
2.3 The Ground for Judicial Review .......................................................................... 10
2.3.1 Substantive Ultra Vires ..................................................................................... 11
2.3.2 Procedural Ultra Vires ...................................................................................... 12
2.4 Administrative Action ......................................................................................... 13
2.4.1 Quasi-Administrative Action/function .............................................................. 14
2.4.2 Quasi-legislative Power or Function ................................................................. 15
2.4.3 Pure Administrative Action/ Function .............................................................. 16

viii
2.4.3.1 Administrative Discretion any powers ........................................................... 18
2.4.3.2 Administrative Arbitrary Action .................................................................... 18
2.5 The Concept of Individual Rights ....................................................................... 18
2.6 The role of Judicial Review in Protection of Individual Rights ......................... 19
2.7 Judicial Review Remedies .................................................................................. 20
2.7.1 The Writ of Certiorari ....................................................................................... 21
2.7.2 The Writ of Mandamus .................................................................................... 22
2.7.3 The Writ of Habeas Corpus .............................................................................. 22
2.7.4 The Write of Quo Warranto .............................................................................. 23
2.7.5 The Writ of Prohibition ..................................................................................... 23
2.8 Literature Gap ..................................................................................................... 24
2.9 Conceptual Framework ....................................................................................... 24
2.10 Conclusion ......................................................................................................... 25
CHAPTER THREE ................................................................................................. 26
RESEARCH METHODOLOGY ........................................................................... 26
3.1 Introduction .......................................................................................................... 26
3.2 Research Approach .............................................................................................. 26
3.3 Reseach Design .................................................................................................... 28
3.4 Type of study ....................................................................................................... 29
3.5 Area of Study ....................................................................................................... 30
3.6 Study Population .................................................................................................. 30
3.7 Population sample and Sample size ..................................................................... 31
3.8 Sampling techique ................................................................................................ 31
3.9 Sources of Data .................................................................................................... 32
3.10 Methods of Data collection ................................................................................ 32
3.10.1 In-depth-interviews ......................................................................................... 32
3.10.2 Questionnaire Survey ...................................................................................... 33
3.10.3 Documentary Review ...................................................................................... 33
3.11 Data Collection Instruments............................................................................... 33
3.12 Methods of Data Processing and Analysis ......................................................... 34
3.13 Conclusion ......................................................................................................... 34

ix
CHAPTER FOUR.......................................................................................... .........35
SUBSTANTIVE AND PROCEDURAL PRINCIPLE OF JUDICIAL
REVIEW: THE JUDICIAL APPROACH IN TANZANIA ................................ 35
4.1 Introduction ......................................................................................................... 35
4.2 Substantive Principles of Judicial Reveiew in Mainland Tanzania .................... 35
4.2.1The Principle of Constitutionality and Judicial Review .................................... 35
4.2.2 The Principle of Utra-vires and Judicial Review.............................................. 38
4.2.2.1 The Doctrine of Substantive Utra-vires ......................................................... 39
4.2.2.2 The Doctrine of Procedure Utra-vires ............................................................ 40
4.3 Procedural Principles of Judicial Review in Tanzania......................................... 43
4.3.1 The Law Governing Application for Judicial Review ...................................... 43
4.3.2 Application for Judicial Review: Prerogative Remedies .................................. 44
4.3.3 Application for Judicial Review Under the Basic Rights and Duties
Enforcement Act, 1994. ............................................................................................. 53
4.3.4 Grounds for the Issue of Certiorar and MandamusPrerogative: the Court
Practice in Tanzania ................................................................................................... 55
4.3.4.1 Ground for the issue of the writ of Certiorari ................................................ 55
4.3.4.2 Ground for the issue of the writ of Mandamus .............................................. 56
4.4 Conclusion .......................................................................................................... 57
CHAPTER FIVE......................................................................................................58
PRESENTATION ANALYSIS AND DISCUSSION OF FINDINGS ................. 58
5.1 Introduction .......................................................................................................... 58
5.2 Demographic Characteristics of Respondents ..................................................... 59
5.3 The Role of Judicial Review in Controling Arbitrary Administrative Action..... 59
5.4 Relevance of Judicial Review in protecting individual rights ............................. 63
5.5 Perception of the citizens on the role of judicial .................................................. 65
5.6 Problems and challenges of Judicial review in protection of .............................. 66
individual rights ......................................................................................................... 66
5.7 Conclusion ........................................................................................................... 66

x
CHAPTER SIX.........................................................................................................67
CONCLUSION AND RECOMMENDATIONS ................................................... 67
6.1 Introduction ......................................................................................................... 67
6.2 Conclusion .......................................................................................................... 67
6.3 Recommendations ............................................................................................... 68
6.4 Area for further research ..................................................................................... 69
BIBLIOGRAPHY .................................................................................................... 70
APPENDIX:Questionnaires for Judges, State Attorneys, and the Private Advocates
....................................................................................................................................73

xi
 FIGURE

Figure 2.1: The conceptual Framework ....................................................................25

xii
 LIST OF STATUTES

Appellate Jurisdiction Act, 1979.................................................................................46

Basic Rights and Duties Enforcement Act 1994........................................................44
Civil Procedure Act Cap 33 R:E 2002........................................................................44
Civil Service Act no.16 of 1989.................................................................................38
Constitution of the United Republic of Tanzania, 1977...............................................4
Civil Service Regulations Act.....................................................................................39
Economic and Organised Control Act 1984...............................................................39
Election Act................................................................................................................52
Government Proceedings Act.1967............................................................................60
Interpretation of Laws and General Clause Act Cap. 1..............................................53
Public Service Act 2002..............................................................................................41
Law Reform (Fatal Accident and Miscellaneous) Amendments Act. 2002...............44
Stock theft Ordinance, Cap 422..................................................................................55

xiii
 LIST OF CASES

Association of Picture House v. Wednesbury Corpoation.................................... 11

Chumchua Marwa v. Officer i/c of Musoma Prisons & AG ................................ 59
Council of Civil Services v. Minister for Civil Services........................................ 11
Daudi Pete v. The United Republic of Tanzania................................................... 60
Hamis Ally Ruhondo v. Attorney General........................................................... 4
Hashim Jongo & 41 others v. Attorney General.................................................... 50
Jama Yusuph v. Minister for Home Affairs........................................................... 62
James F Gwagilo v Attorney General..................................................................... 38
John Mwombeki Byombalirwa v. The R C and R P Commander...................... 56
Julius Ishengoma Francis Ndyanabo v. Attorney General................................. 65
Kahama Gold Mines v. Minister for Energy...................................................... 45
Karibu Textile Mills Ltd v. New Mbeya Textiles Mills Ltd and 3 other............. 46
Kukutia Ole Pumbuni & Another v. Attorney General...................................... 60
Legal and Human Rights Centre v. Thomas Ole Sabaya and 4Others............... 61
Muhidini A. Ndolanga and Others v. N S C and Another ................................ 42
Ndesamburo V. Attorney General....................................................................... 41
National Organization for Legal Assistance v. Attorney General........................ 38
Obadiah Salehe v. Dodoma Wine Company........................................................ 4
Patman Garment v. Attorney General................................................................... 4
PC Julius Mkomwa v. Inspector General of Police and Attorney General........ 49
Rev. Christopher Mtikila v. The Attorney General............................................ 37
Said Juma Muslim v Attorney-General ............................................................. 39
Senate of Univ. of D’Salaam v. Edmund Amin Mwasaga and 4 others............. 46
Senzia A Mbaga and 6Others v. Chairman of the Election Commissioner........ 49
Sanai Murumbe and Another r v. Muhere Chacha............................................ 55
Thomas & Others v. Olufosoye............................................................................ 51
Winfred Ngonyani v. Attorney General................................................................ 62

xiv
 CHAPTER ONE
INTRODUCTION AND BACKGROUND INFORMATION

1.1 Introduction
Judicial review of administrative action is perhaps the most important development
in the field of public Law in the second half of this century. Judicial review is a great
weapon in the hands of judges. It comprises the power of a court to hold
unconstitutional and unenforceable any law or order based upon such law or any
other action by a public authority which is inconsistent or in conflict with the basic
law of the land (Takwani, 2001: 236)

By judicial control is meant the power of the courts to examine the Legality of the
officials act and thereby to safeguard the fundamental and other essential rights of
the citizens. The underlying object of judicial review is to ensure that the authority
does not abuse its power and the individual receives just and fair treatment and to
ensure that the authority reaches the conclusions which are correct in the eyes of law.
It is one of the most significant features of the legal system based on common law
traditions is the power of judicial review (Mushi, E.G. 2009:1). Judicial review is the
legal process concerning control by the courts of the powers, functions and
procedures of administrative authorities and bodies discharging public
functions(Shivji, I.G). It is the process by which the High court exercises its
supervisory jurisdiction over the proceedings and actions of inferior courts, tribunals
and other bodies that perform public functions. It is this branch of Administrative
law which deals with control, through court’s process, of the executive organ of the
state ( Peter, K. 2009:1).

Thus, this research explores the relevancy and significance of judicial Review in
protecting citizens’ rights against arbitrary administrative action. Accordingly, the
research examines the role of judicial review in protection of individuals rights
against arbitrary administrative action; the effectiveness of the judicial review
remedies available to individuals against arbitrary Administrative action and the

1
perception of the people on the relevancy of judicial review in protecting their
fundamental rights.

1.2 Background Information

The increase and growth of judicial review against administrtive action is a direct
consequence of the growth of administrative powers and functions in modern times
and is bettter understood within a historical context. The period preceeding the
nineteenth century was characterised by laissez faire societal mode of life under
which the state had very minimal functions and powers over individuals affairs
(Peter, K. 2009; Jain, M.P & Jain, S.N 2007:2). The advent of the welfare state in the
20thcentury changed the role of the state in respect of individual’s affairs. The state
assumed many functions which under the leissez faire were under individuals. The
increase in functions of the State necessitated the increase of the powers of the State
of which unless they are controled, individual’s rights may be adversely affected
(Jain, M.P & Jain, S.N 2007:7). It was therefore, the ever increased power and
functions of the State that made the importance of judicial review to increase from
the 20th Century.

In other jurisdictions, for instatnce in Britain, judicial review started even earlier than
the 20thCentury. It was from the United Kingdoms that Judicial Review spread to
other countries (including Tanganyika by then, now Tanzania) through British rule (
Mushi,E.G. 2009:2). In Tanzania, judicial review was received as an aspect of
common law of England through the Tanganyika Order in Council, 1920 and the
Judiculture and Application of Laws Act.1 During colonialism very judicial review
had very litle or even no signifancy at all. Stressing on this defficiency during the
colonial era, Shivji, I.G., observes;

“During much of the colonial period, judicial review had virtually no role to
play for the simple reason that colialism itself was one gigantic abuse of
power. Access to colonial courts...was denied the majority. Courts in effect

1
S. 2(3) of CAP 3 R.E.2002

2
 served the largely the imigrant communities involved in commercial and such
other enterprise.”

Little had taken place in the development of public law. Many cases dtermined by
the colonial courts were civil in nature particularly involving Asian litigants in
matters of contract, property and torts. The only branch of public law that had a place
during colonial era was criminal law (Shivji, I.G.). Upon attaining her political
independence, Tanganyika inherited the colonial legacy. The principles on which the
concept of judicial review had developed in Britain were adopted in the independent
Tanganyika even though after independence, Her Majesty’s Government in the UK
had ceased to have any responsibility in the Government of Tanganyika (Mushi,
E.G.2009:5). Judicial review continued to be a part and parcel of the Legal system
of Tanganyika though with very litle significance in the protection of individual
rights against arbitrary administrative action. The legal syetem of Tanganyika at
independence was characterised by right-less laws and a constitution without
constitutionalism. The state did not seek its legality and legitimacy in law, but rather
brutally relied on other ideologies. Thus, Shivji, I.G., rightly observes that at this
period in time, due to the absence of the Bill of Rights and other reasons, the civil
side of public law i.e constitutional law and judicial review had insiginificant place.2

The absence of the Bill of rights in the constitution was a conditio sine qua non for
smooth functioning of one-party system. The said vacuum in the constitution created
a room for the government to enact a number of oppressive and objectionalble laws
and arbitrary administrative action that could not stand the test of validity in a
constitition with a Bill of Rights had it been entrenched in the Constution (Peter,
C.M. 1997:4). That has been the evil of day for almost thirty(30) years since
Tanzania got her political independence.

Judicial review started up very slowly in the 1980s whereby some few people with
means challenged arbitrary use of administrative power affecting property rights in

2
Even the few judicial review decisions that were made by the High Court, for instance, the case of
Bukoba Gymkhana, involved the commercial class complaining for licensing, rents, and the like.

3
the courts. A few others had courage even to challenge presidential powers under the
Preventive Detention Act, 1962 and applications in labour matters. Most of such
applications ended unsuccessful.3

It was until 1984, when the Bill of rights was enacted and enshrined into the
Constitution of the United Republic of Tanzania,1977, vide the 5th Constitutional
Amendment Act and its subsequent justiciability in 1987, that gave a big push to
judicial activism in the field of judicial review in protection of individual rights
against arbitrary administrative action (Bisimba, H.K & Peter,C.M.,2005).4
Despite the advent of judicial activism on judicial review and protection of
individuals’ rights, still the relevence of judicial review has remained insignificant.
There are still different incidents that involve arbitrary administrative action some of
which have never ever been called in question for judicial review. Even for the few
decisions made, it is not clear whether the remedies so provided were full executed
and sufficiently redressed the victims. Therefore, this research aims at unveiling the
relevance of the judicial review in protecting citizens rights against arbitrary
administrative action by examining the role of judicial review in protection of
individual’s rights against arbitrary administrative action; the effectiveness of the
judicial review remedies, and the perception of the people on the relevancy of
judicial review in protecting their fundamental rights.

1.3 Statement of the problem

Constitutionally, the Government has the primary obligation or duty to protect the
rights of its citizens from being infringed or violated through arbitrary administrative
action. Accordingly, the Constitution5 empowers individuals to seek remedies
through the judiciary when their rights have been infringed or likely to be violated or

3
Examples of such applications for judicial review are Patman Gaments, Amri Juma, Alli Linus,
Hamisi Ally Ruhondo, etc.
4
The forst case of judicial review that was the case of Chumchuas/o Marwa v Officer incharge of
Musoma Prison and Another, High Court of Tanzania at Mwanza, Misc. Criminal cause No. 2 of 1988.
Others were John M. Byombalirwa V. The Regional Commissioner and Regional Police
Commander(1986)T.R.L.73, Obadiah Salehe v. Dodoma Wine Company Ltd, High Court of Tanzania
at Dodoma, Civil Case no. 53 of 1990 (unreported),
5
Part II, Article 8 (1) (b) and (c) ,Constitution of The United Republic of Tanzania, 1977.pg 18

4
infringed. However, since 2010, there has been an ever increasing arbitrary
administrsative action made by administrative authorities in Mainland Tanzania6.
The said arbitrary action have resultantly affected the citizens’ rights, including but
not limited to the right to work and the right to property. Despite such episode, there
has been no sufficient remedies to the affected individuals.

Many researches have been conducted in respect of challenges on the procedures in

the application for the judicial review, long and cumbersome process, eveolution of
judicial review and the changing trend of public administration7, but there is no any
research (in the knowledge of the researcher) conducted on the relevance of judicial
review in protection of individual rights against arbitrary adminstrative action.
Therefore, this research is expected to cover this knowledge gap.

1.4 Research Objectives

This research will be conducted under the following general and specific objectives.

1.4.1 General objective

The general objective of the study is to examine the relevancy of judicial review in
protecting the citizen’s or individual rights against arbitrary Administrative action
and to determine the required improvements if any.

1.4.2 Specific objectives

i) To determine the role of the judicial review in protection of individual rights
against arbitrary administrative action.
ii) To determine the awareness of the people on the role of judicial review in
protection of individual rights.
iii) To examine the effectiveness of judicial review remedies against arbitrary
administrative action.

6
Demolition of Kigogo Residents houses for expanding public road. The Minister for Infrastructure,
(2011) , TBC News Report, Demolition of Ilala, Kinondoni and Temeke quarters , Local Government
authorities TBC News Report, 2012.
7
For instance Mushi E.G. (2009) Judicial Review and the Changing Trend in the Public
Administration: An assessment of the High Court Response.unpublished Doctoral dessertation,
Mzumbe University, 2009.

5
 iv) To examine the perception of the people on the relevancy of judicial review in
protecting their fundamental rights.
v) To determine the required improvements on judicial review in protecting the
individuals rights against arbitrary administrative action.

1.5 Significants of the study

i) The study is intended to draw its significance in the following ways;
ii) Reflection of new insights on the possible alternative measures to be taken by
policy makers and concerned public authorities towards safe guarding citizens
rights from the dangers of arbitrary administrative action.
iii) The study forms part of the valuable literature on the study of public
adminstration particularly on arbitrary administrative action, citizen’s rights
and judicial review process.
iv) The study also forms the basis of other future research projects depending on
the areas of interests which the researcher has not taken into account.
v) The study also forms part of academic undertaking in fulfilment of the
requirements for the award of Master Degree in Public Administration of
Mzumbe University.

1.6 Research questions

i) This study will be conducted under the following research questions.
ii) What is the role of judicial review in controling arbitrary adminstrative action?
iii) To what extent is judicial review relevant in protecting individual rights against
arbitrary adminstrative action?
iv) Are the judicial review remedies sufficient in redressing the individuals
affected by arbitrary administrative action?
v) What is the perception of the citizens on the role of judicial review in
protection of their rights?
vi) What improvements (if any) are required to make judicial review relevent in
protection of individual rights against arbitrary adminstrative action?

6
1.7 Scope of the study
This study is confined only to Mainland Tanzania and focuses on the High Court of
the United Republic of Tanzania established under Article 108(1).8 Although the
United Republic of Tanzania includes the Isles of Zanzibar, the same is not covered
in this study. There are several reasons for this demarcation. The Revolutionary
Government of Zanzibar has its own constitution and its own High Court. It has full
autonomy in the management of its affairs with the exception of those Union
Matters.9 From all these and several other reasons, it is obvious that including
Zanzibar in this study would possibly alter the purpose of the study. The choice of
the geographical area was also based on the researcher’s own interest, the resources
and the specific period planned for this study.

1.8 Limitations and delimitations of the study

In conducting this research, the researcher encountered several limitations
includinging inaccessibility of some respondents due to different reasons such as
occurrence of social and natural events like deaths, not found in sampled area and
tight schedules of the sample population. This caused wastage of time and financial
resources since the researcher was obliged to wait for them or follow them another
day. Where such circumstances occured, the researcher resolted to questionnaires
and documentary review to supplement the information that were to be obtained
through face to face interviews.

Another problem was reluctance of some respondents or refusal to provide

information or provide untrue answers. This hindered accessibility of data during
data collection. such negative responses were due to fear of being reported for legal
action. Others had negative attitude by thinking the researcher was spying them. This
problem was solved by ensuring them confidentiality and by informing them the
purpose of the study.

8
Constitution of the United Republic of Tanzania, 1977
9
Mushi E.G. (2009) Judicial Review and the Changing Trend in the Public Administration: An
assessment of the High Court Response. Pg. 18.

7
1.9 Organization of the study
This desertation has been organized into six chapters. Chapter one gives the general
introduction and background information; chapter two consists of theoratical and
empirical literature review and the conceptual framework; chapter three provides the
research methodology of the study; chapter four covers the judicial approach of the
substantive and procedural aspects of judicial review in mainland Tanzania, chapter
five centres on data presentation, analysis and interpretation; and lastly chapter six
comprises of the general conclusion and recomandations.

8
 CHAPTER TWO
LITERATURE REVIEW
2.1 Introduction
This chapter gives an analysis and review of the theoratical and empirical litaratures
on the relevance of judicial review in protection of individual rights against arbitrary
administrative action so as to determine knowledge gape in literature and create the
basis for the conceptual framework of the study. Specifically the chapter gives a
review of the literatures on the concept of judicial review, grounds for judicial
review, the role of judicial review, individual rights, arbitrary administrative action;
judicial review remedies and, relevancy of judicial review.

2.2 The Concept of Judicial Review

Many authors have written on the cocept of judicialnreview. According to the Oxford
Dictionary of Law, judicial review is a simplified procedure through which
prerogative remedies and other remedies are obtained in the Hight court against
inferior courts, tribunals and andministrative authorities.it is a uniform system for the
exercise by the High Court of its Supervisory jurisdiction over enferior courts,
tribunals abd public bodies and persons (Osborn’s Concise Law Dictionary,
2003:188). According to Black’s Law Dictionary, judicial review is the a court’s
power to review the axctions of other branches of levels of giovernment, in
particular, the power to invalidate the legislative and executive actions as being
unconstitutional. It is one of the mechanisms through which the judiciary can bring
to right and redress the abuse of power and authority by organs of the state and other
bodies (Shivji, I.G.). It is the cardinal duty of the judiciary under the constitution to
keep the different organs of the state within the limits of powers conferred upon them
by statutes and this is done in attempt to protect the citizen’s rights from the abuse of
administrative power which is normally seen through arbitrary administrative action,
(Takwani, C.K., 2005). Judicial review is a specialised remedy in public law by
which the High Court exercises a supervisory jurisdiction over inferior courts,
tribunals or other public bodies. In exercise of the said power, the Court is concerned
with evaluating the fairness of the decision (Ramadhan, A., 2009:1). The purpose of
judicial review is to ensure that inferior courts and public authorities do their job and

9
that they do it properly. I t is a public law jurisdiction. In exercising the jurisdiction,
the superior courts protect both the public interest in good administration and the
rights of individual citizens(Albetha, E.,1984:12).

This power of the High court to review the decisions of enferior courts, tribunals and
administrative bodies does note owe its origine to statute(Garner’s 1996:161). It is an
inherent power of the High Court as supervisory body which is meant to ensure
statutory powers are not usurped, exceeded or abused and that procedural and
substantive duties are complied with. It is the jurisdiction which is founded on the
doctrine of ultra vires which require that agencies created by statute have only such
powers as statute has conferred upon them(Jain, M.P & Jain, S.N.,2007:553).

2.3 The Ground for Judicial Review

There are several grounds which one can employ to challenge a decision of a public
authority through judicial review. However, these grounds have to be studied in the
understanding that they sometimes bear a very small line of distinction between one
another and in some cases more than one ground can form the basis of a challenge
within a single case. Literature reviewed for instance (Takwani, C.K., 2005; Jain,
M.P & Jain, S.N.,2007; and Garner’s 1996) show that the main grounds of judicial
review over admnistrative action as being three fords: illegality, irrationality and
procedural impropriety. Illegality means many things such as excess of jurisdiction,
absence of power, unlawful delegation, error of law on the face of record, improper
motive, irrationality, failure to exercise discretion,unreasonableness, irrevant
consideration, mala fide and and acting under dictaqtion (Takwani, C.K.,2005). He
further spots out procedural impropriecy as failure to follow statutoryprocedures of
breach of principles of natural justice. Generally, the grounds for judicial review over
administrative action are placed under the principles of subsatantive and procedural
utra-vires (Mushi, E.G.,2009:154&156).
In Public Law the doctrine of ultra vires has two aspects, namely ‘substantive ultra
vires’ and ‘procedural ultra vires’. An act of a public authority may be invalid on the
ground of substantive ultra vires if it is not authorized or is forbidden. It may further
be invalid on the ground of procedural ultra vires where there is failure to observe the

10
procedural requirements provided by the parent Act. The two principles are hereby
examined.

2.3.1 Substantive Ultra Vires

An administrative action may be declared substively ultra vires if it exceeds the
authority given to it by the enabling Act. An ultra vires act has no legal force and for
that reason it can be ignored if it enterfers with individual rights. The principle of
ultra vires is also invoked when the authority in question has no authority to perform
the act called in question. That is, an act may be ultra vires when it is done by an
incompetent person. (Mollah, A.H. 2005:16) The doctrine of substantive ultra vires
further applies in circumstances where the appropriate or competente authority is
missing. Thus, an act may be ultra vires when the person or body of persons doing
the act has not been properly appointed or constituted. More over, an act may also be
considered ultra vires by the judiciary even if it is done by the proper person properly
appointed, if that person exceeds the power given to him by law. Similarly, the use of
statutory power can be considered valid only if it is lawful. Where the power is used
unreasonably, or used in bad faith or mala fide, the principle of ultra vires is applied
to declared the exercise of power invalid (Farhad, S. 2011:594-598).
The exercise of statutory power can be challenged as being substantively utra-vires if
it is considered unreasonable. At common law, the doctrine of unreasonableness was
developed in the case of Association of Picture Houses v.Wednesbury Corporation10
in which Lord Green MR., described two forms of unreasonableness. First,
unreasonableness can be a general description of a public authority doing things that
must not be done, such as not directing itself properly in law by considering matters
which it is not bound to consider and taking into consideration irrelevant matters.
Another type of unreasonableness occurs when a public authority does something
that is so absurd that no sensible person could ever dream that it lay within the
powers of the authority as illustrated by the dismissal of a teacher because of her red
hair (Langwallen, D., 2009). The doctrine of unreasonableness was subsequently
reformulated by the House of Lords in Council of Civil Services v. Minister for the

10
[1948] 1 K.B. 223.

11
Civil Services11 in which Lord Diplock stated that it applies to a decision which is so
outrageous in the defiance of logic or of accepted moral standards that no sensible
person who had applied his mind to the question to be decided could have arrived at
it (Langwallen, D., 2009). With respect to unreasonableness, the crux of the judicial
opinion on the depth of judicial review varies with the subject matter. An individual
may find an administrative decision unreasonable, but that is not enough for the
Court to strike down that administrative action as unreasonable. It is only in those
extreme and limited cases of unreasonableness where no reasonable person can find
the decision reasonable that the Court can interfere with the administrative decision
under the ground of unreasonableness (Varghese, R., and 2014: 89).
Literature revels that an administrative act can further be considered as being
substantively utra-vires if it is made in bad faith or mala fide (Mushi, E.G., 2009).
Bad faith denotes an intentional dishonest act by not fulfilling legal or contractual
obligations, misleading another, entering into an agreement without the intention or
means to fulfill it, or violating basic standards of honesty in dealing with others (
Farlex Onlineictionary). To act in bad faith is to do so for extraneous purposes, that
is, outside the purpose for which the power is intended. The concept of bad faith
underlies, and is consistent with, the concept of malice in the civil actions of
malicious prosecution and misfeasance in public office (Chan, G.,2013:27).

2.3.2 Procedural Ultra Vires

Procedural ultra vires denotes failure to adhere to procedural requirements. An act of
a public authority may be held to be invalidated where it does not conform with the
procedures of doing the act called in question. When power is conferred upon
administrative authority to make a rule or adjudicate upon a dispute, usually the
parent Act may set certain mandatory procedures to be followed. Failure to observe
mandatory procedures renders the act in question invalid (Singh Mandra, P. 2001).
For instance, where it is laid down in the Statute that a rule or order shall be made
upon consultation with the affected or interested persons, non compliance with such
procedure renders the rule or order thereby made, null and void. Similarly, when a

11
[1985] A.C. 374.

12
statute prescribes mandatory procedures or the manner or form in which the duty is
to be performed or the power to be exercised, non compliance with such procedures
renders every thing null and void ( Robinson, M.2006).
Procedural utra-vires can also be envoked where the decision maker failed to observe
the principles of natural justice. The principles of natural justice are the fountain of
fairness. Natural justice is a technical terminology for the rule against bias (nemo
judex in causa sua) and the right to a fair hearing (audi alteram partem). While the
term natural justice is often retained as a general concept, it has largely been
replaced and extended by the general duty to act fairly.
The basis for the rule against bias is the need to maintain public confidence in the
legal system. Bias can take the form of actual bias, imputed bias or apparent bias.
Actual bias is very difficult to prove in practice while imputed bias, once shown, will
result in a decision being void without the need for any investigation into the
likelihood or suspicion of bias. Cases from different jurisdictions currently apply two
tests for apparent bias: the "reasonable suspicion of bias" test and the "real likelihood
of bias" test. One view that has been taken is that the differences between these two
tests are largely semantic and that they operate similarly (Wikipedia). The right to a
fair hearing requires that individuals should not be penalized by decisions affecting
their rights or legitimate expectations unless they have been given prior notice of the
case, a fair opportunity to answer it, and the opportunity to present their own case.
The mere fact that a decision affects rights or interests is sufficient to subject the
decision to the procedures required by natural justice (Wikipedia). In the present
days, another rule of natural justice has been developed by the courts, namely, the
right to know the reasons for the decision that is nullum arbitium sine rationibus
(Helen kijo- Bisimba and Chris Maina Peter, 2005:432).

2.4 Administrative Action

Administrative action is any decision taken, or any failure to take a decision, by an
organ of state, when exercising a power in terms of the Constitution or exercising a
public power or performing a public function in terms of any legislation; or natural
or juristic person, other than an organ of state, when exercising a public power or
performing a public function in terms of an empowering provision, which adversely

13
affects the rights of any person, and which has a direct, external legal
effect(Wikipedia). Thus, administrative action means administrative decision.
Administrative decision is any decision of an administrative nature made, proposed
to be made, or required to be made, as the case may be, under an empowering
provision, including a decision relating to making, suspending, revoking or refusing
to make an order, award or determination; giving, suspending, revoking or refusing
to give a certificate, direction, approval, consent or permission; issuing, suspending,
revoking or refusing to issue a licence, authority or other instrument; imposing a
condition or restriction; making a declaration, demand or requirement; retaining, or
refusing to deliver up, an article; or doing or refusing to do any other act or thing of
an administrative nature(Wikipedia).
Review of literature seem to suggest that, in a broader sense, Administrative action
denotes all the powers, authorities and duties exercised by public authorities in the
administration of the government (Albetha, E., 1984: 12). Such powers and functions
can be classified into quasi-judicial function, quasi legislative functions and pure
administrative functions. When the validity of an action is called in question under
judicial review, the first thing that the court may have to do is to identify the nature
of the order impugned because in most cases the norms to be applied in assessing its
validity will depend on whether the order is quasi-judicial, quasi legislative or pure
administrative in nature (Jain, M.P & Jain, S.N 2007:29).

2.4.1 Quasi-Administrative Action/function

A quasi-judicial administrative function means the power of the administration to
determine rights of the parties or settle administrative disputes (Merriam Webster).
As a general rule, only courts of law have the authority to decide controversies that
affect individual rights. One major exception to this general rule is the power of the
administration or administrative agencies to make decisions concerning the rights of
parties (Joseph J. W. 1991). An administrative agency is a body of government
created by a legislature and charged with supervision and regulation of a particular
area of governmental concern. Part of the regulatory power given to an
administrative agency is the power of adjudication. With the exception of rule
making, any decision by an agency that has a legal effect is a quasi-judicial action.

14
Complaints against administrative agencies often arise when an agent denies benefits
or places restrictions on an individual (Farlex Free online Dictionary). For example,
a homeowner who seeks to build another structure on her property must obtain
approval from a number of administrative agencies. If the local conservation agency
refuses to issue a permit for the building of a new structure, the homeowner may
appeal this decision in a hearing before the agency's administrative board. The board
may hear testimony and examine evidence at the hearing, and then it will decide
whether to issue the permit or uphold the agency's refusal (Farlex Free online
Dictionary).
Examples of quasi-judicial administrative functions are Disciplinary proceedings
against students; disciplinary proceedings against an employee for misconduct;
confiscation of goods; cancellation, suspension, revocation or refusal to renew
license or permit by licensing authority; determination of citizenship; determination
of statutory disputes; power to continue the detention or seizure of goods beyond a
particular period; forfeiture of pensions and gratuity; authority granting or refusing
permission for retrenchment etc.(C.K. Takwan, 2004).
An administrative agency must hold a formal hearing only when required by statute.
A formal hearing is a complete hearing with the presentation of testimony, evidence,
and arguments. An informal hearing usually is a simple meeting and discussion
between an agent of the agency and the individual affected by the agency's actions.
As a general rule, the scope of a hearing depends on the importance of the right at
issue (Farlex, ibid).

2.4.2 Quasi-legislative Power or Function

When an administrative agency exercises its rule-making authority, it is said to act in
a quasi-legislative manner. The administration acquires this authority to make rules
and regulations that affect legal rights through statutes. This authority is an exception
to the general principle that laws affecting rights should be passed only by elected
lawmakers (Wikipedia).
Administrative legislations are made only with the permission of the parliament. In
this sense quasi-legislative activity occurs at the discretion of the parliament.
Nevertheless, administrative agencies create and enforce many legal rules on their

15
own, often without the advice of the parliament, and the rules have the force of law.
This means they have a binding effect on the general public (Joseph, J.W, 1991).
Delegated legislation such as codes of practice, guidelines, guidance notes, protocols,
circulars, policy notes, practice statements, directives, or codes of conduct, have been
necessary and grown in importance for a number of reasons. Literature seem to
suggest that among the thought advantages of delegated legislation are the need to
supply operational details to principles and policies laid down in parliamentary Acts;
limited time on part of the parliament and technical capacity to comprehensively
write every single piece of legislation; delegation allows the departmental apparatus
to operationalize the will of the parliament; facilitating the practical dimensions of
regulatory harmonization; inter-jurisdiction consistency; and that delegated
legislation are free from undue political interferences (Hickie, S.2012).
Literature further suggest that despite the legitimate and appropriate use of quasi
legislation there remains a suspicion that sometimes its use is not always driven by
the desire for regulatory effectiveness, particularly considering the problems of
inconsistent, poor drafting and accessibility. Quasi-legislation is coupled with
challenges to those subject to the same and those charged with the duty to interpret
the law. Beyond the practical deficiencies, there are more obscure concerns
pertaining to the potential reduction in parliamentary oversight resulting from quasi-
legislation (Hickie, S.2012, ibid).

2.4.3 Pure Administrative Action/ Function

Purely administrative action is the residuary action which is neither legislative nor
judicial. It is concerned with the treatment of a particular situation and is devoid of
generality. It has no procedural obligations of collecting evidence and weighing
argument. It is based on subjective satisfaction or based on policy and expediency. It
does not decide a right though it may affect a right (Jain, M.P & Jain, S.N 2007).
However, it does not mean that the principles of natural justice can be ignored
completely when the authority is exercising “administrative powers”. Unless the
statute provides otherwise, a minimum of the principles of natural justice must
always be observed depending on the fact situation of each case (Jain, M.P & Jain,
S.N 2007). Administrative action may be statutory, having the force of law, or non

16
statutory, devoid of such legal force. The bulk of the administrative action is
statutory because a statute or the Constitution gives it a legal force but in some cases
it may be non-statutory, such as issuing directions to subordinates. The exercise of
administrative power or function may be discretional or mandatory.

2.4.3.1 Administrative Discretionary Powers

The term discretion ordinarily means the act of choosing a certain thing from the
various alternatives available to a person. In law, the phrase ‘discretionary powers’
signifies the powers exercised by a person by way of making a choice between
alternative courses of action (Merriam-Webstar). In almost every system of
government, the executive, the legislature and the judiciary exercise discretionary
powers regarding matters falling within their respective jurisdictions. The problem of
administrative discretion is complex. It is true that in any intensive form of
government, the government cannot function without the exercise of some discretion
by the officials. It is necessary not only for the individualization of the administrative
power but also because it is humanly impossible to lay down a rule for every
conceivable eventually in the complex art of modern government (Massey, 2001).
But it is equally true that absolute discretion is a ruthless master. It is more
destructive of freedom than any of man's other inventions. Therefore, there has been
a constant conflict between the claims of the administration to an absolute discretion
and the claims of subjects to a reasonable exercise of it. Discretionary power by itself
is not pure evil but gives much room for misuse (Massey, 2001).
The traditional areas of administrative discretion were the maintenance of law and
order, immigration, nationality, deportation etc. but now owing to the concept of
Welfare State adopted by the modern democracies, administrative officers exercise
discretionary powers on a very large scale (Jain, M.P & Jain, S.N 2007). The
Statutes conferring discretionary powers on administrative officers employ such
expressions as public interest etc. Sometimes power is given to the Executive
Government to decide when a certain statute should be commenced, when it should
be extended to a certain area and in what respect it should be modified. Similarly,
powers are given to the administrative officers to detain persons, to acquire property
and to undertake projects for public purpose. In regard to all these matters the

17
administrative officers take their own decision as to when they should exercise the
power that has been conferred on them, and when they should not exercise it. There
is no other authority except the officer himself who has to take a decision (C.K.
Takwani, 2004). Judicial review of discretionary powers may be based on several
circumstances suc as failure on the part of the administration to exercise the
discretion; where there is abuse of discretion i.e the discretionary power is exercised
unreasonably (C.K. Takwani, 2004).

Though by and large administrative action is discretionary and is based on subjective

satisfaction, however, the administrative authority must act fairly, impartially and
reasonably (Charles H. Koch 1984). Literatures suggest that whenever there are too
much discretionary powers on part of the government, there is a room for
arbitrariness due to abuse of discretionary powers (Dicey, 1885).

2.4.3.2 Administrative Arbitrary Action

There is no treight forward meaning of the term arbitrary action so far. However, the
term is usually used with reference to to actions or conduct which are subject to
individual will or judgment without restriction; contingent solely upon one's
discretion. It is an arbitrary decisiond decided by a judge or administrator or arbiter
rather than by a law or statute (Wikipedia). It is alsoused with reference to unlimited
power; uncontrolled or unrestricted by law; despotic; tyrannical or an arbitrary
government. It is an action which is capricious; unreasonable; unsupported;
undetermined; not assigned a specific value; acting unpredictably and more from
whim or caprice than from reason or judgment (Farles the free online Dictionary).

2.5 The Concept of Individual Rights

Indvidual rights is a complex concept which has been extensively and intensively
delt with by many authors. According to the Oxford Dictionary of Law, 2003, the
term right means the title or an interest in property or any other interest or privilege
recognized and protected by law. It is a term which is used along with the concept of
human rights which means the rights and freedoms that every human being is entitled
to, hence the concept of individual rights. Individual rights are fundamental and are

18
believed to derive from nature, hence, every person is entitled and, thery can either
be political or economic rights (Osborn’s Concise Law Dictionar). This rights belong
to every individual simply because she or he is a human being(Clement, J.C.,2010:3).
Such rights are not dependent on being provided for in a particular legal document
but rather inherently acquired by birth by every person (Peter, C.M.). Therefore,
individual rights are eseential and they must be recognised and be protected.

Human rights are distinguishable from other rights in two main ways: first, other
rights are acquired and are created by some act or event, like a contract, inheritance
or tort. Second, such rights are transferable, disposable and extinguishable by other
acts or events. In contrast, human rights are not acquired and therefore they cannot
be extinguished or transferred by any act or event. Human rights are said to inhere
universally in all human beings by virtue of their humanity alone and are thus
inalienable. Usually human rights are owed against the state and not against
individuals at their individual capacities (Paul, S., 1985:17).

2.6 The role of Judicial Review in Protection of Individual Rights

Literature suggest that the power of judicial review is of great significance to a
modern democracy. The role of judiciary in protecting the citizens against
administrative malpractices has become all the more important with the increase in
the powers and discretion of the public officials in the modern welfare states. But the
courts cannot interfere in the administrative activities of their own accord. They can
intervene only when they are invited to do so by any person who feels that his rights
have been abrogated or are likely to be abrogated as a result of some action of the
public official. Secondly, the courts cannot interfere in each and every administrative
act, as too much of Judicial action may make the official too much conscious and
very little of it may make them negligent of the rights of citizens. (Mollah, A.H.
2005)

As a protector of the Constitution, judicial review plays a critical role in securing the
function of government system as well as in protecting human rights during the
recent period of our democratization (Wikipedia). It reviews the lawfulness of

19
government actions, and in so doing, the Judiciary has the power to review and
renounce administrative actions which abrogate individual rights (Wikipedia).
However, other authors are of the view that the role of judicial review in protecting
citizens rights, especially, in tanzania is less significant. Shivji, I.G., for instance,
argues that as a mean of detering the continued abuse of power and impacting on the
lives of the majority, judicial review is perhaps not efficacious in deterence value.
Mushi, E.G., the role of Judicial review as a means of protecting individual rights is
coupled with a number of problems which amongst include rivalry between the
executive and the judiciary, weaknesses of the legal framework of judicial review,
interfearence by the executives to defeat the outcomesof the cases, ignorance of the
bar and the bench of judicial review, inaccessibility of the judiciary to to the
majority, procedural impediments and poor enforcement of the court orders (Mushi,
E.G.,2009:310). In line with this challenges that affects the relevance and the
significance of judicial review in protection of individual rights, Mollan (2001),
observes that, the process for applying for leave to apply for judicial review, in its
stages offers protection to public bodies, in that, the court will have an opportunity
to “Weed out” unmeritorious cases at an early stage. The application is made exparte
to a judge who may determine the application without a hearing unless a hearing is
requested in the notice of the application, and he needs not sit in open court, and
where leave is refused, the applicant may appeal to a judge sitting in the open court.
The limitations for which judicial review or the powers of the high court is limited
may range from a variety of approaches and they include the following; lack of a
locus standi on part of the petitioner, application being time barred by statute of
limitation, refusal to grant leave for application and denial to give remedy at the
discretion of the court. Substantially his study was all about the long and thin judicial
review applicati on process of getting the remedy from the High court due to strict
legal technicalties provided in the statutes.

2.7 Judicial Review Remedies

Review of literature seems to suggest that judicial review remedies are classified into
two main classes: prerogative and non-prerogative remedies. The prerogative
remedies under judicial review are certiorari, prohibition, mandamus, quo warranto

20
and habeas corpus (Oxford Dictionary of Law, 2003:272). The prerogative remedies
are ancient in origin. They were first issued by common law courts in the name of the
King for the public law purpose of controlling inferior judicial and other officials
(Alberta, E., 1984: 13). Since the complaints were brought by citizens, the remedies
eventually became available to citizens and no longer issued in the King's name.
Hence, the prerogative remedies are called public remedies because of their history
and purpose. The non-prerogative remedies are declaration and injunctions which
originated in equity to supplement common law (Alberta, E., 1984: 14). However,
for the purpose of clarity these remedies are hereby described one after another.

2.7.1 The Writ of Certiorari

Certiorari is a command or order to an inferior Court or tribunal to transmit the
records of a cause or matter pending before them to the superior Court to be dealt
with there and if the order of inferior Court is found to be without jurisdiction or
against the principles of natural justice, it is quashed. Certiorari is historically an
extraordinary legal remedy and is corrective in nature. It is issued in the form of an
order by a superior Court to an inferior civil tribunal which deals with the civil rights
of persons and which is public authority to certify the records of any proceeding of
the latter to review the same for defects of jurisdiction, fundamental irregularities of
procedure and for errors of law apparent on the proceedings ( Jain, M.P & Jain, S.N
2007; C.K. Takwani, 2004).

The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it,
the Court is not entitled to act as a Court of appeal. That necessarily means that the
findings of fact arrived at by the inferior Court or tribunal are binding. An error of
law apparent on the face of the record could be corrected by a writ of certiorari, but
not an error of fact; however grave it may appear to be. The very end of this writ is to
correct the error apparent on the face of proceedings and to correct the jurisdictional
excesses. It also corrects the procedural omissions made by inferior courts or tribunal
(Legal Information Institute,1992; Scott L. N.). Literature therefore suggests that,
the rite of certiorari can be issued where a person or body of persons having legal
authority to determine questions affecting rights of subjects and having duty to act

21
judicially exceeds his jurisdiction, abuse his jurisdiction; acts in absence of
jurisdiction; violates rules of Natural justice, commits fraud or makes an error on the
face of records (C.K Takwani 2004).

2.7.2 The Writ of Mandamus

Literature for instance, C.K Takwan, 2004 and Jain, MP. & Jain, SN, 2007 define the
writ of mandamus as a command directed to the inferior Court, tribunal, a board,
corporation or any administrative authority, or a person requiring the performance of
a specific duty fixed by law or associated with the office occupied by the person. The
writ is issued to compel an authority to do his duties or exercise his powers, in
accordance with the mandate of law. The authority may also be prevented from
doing an act, which he is not entitled to do. The authority, against which the writ is
issued, may be governmental or semi-governmental, or judicial bodies. Its function is
as general writ of justice. Whenever justice is denied or delayed and the aggrieved
person has no other suitable remedy. An order in the nature of mandamus is not
made against a private individual unless he acts under some public authority.

The writ of mandamus can be issued only where the petitioner has a legal right that
has been infringed by non performance of a corresponding duty by the public
authority; that the petitioner has demanded the performance of the legal duty by the
public authority and the authority has refused to act; and that there has been no
effective alternative legal remedy (Battered Women’s Legal Advocacy Project, Inc.,
2003).

2.7.3 The Writ of Habeas Corpus

Review of literature reveals that the writ of habeas corpus is a prerogative writ which
was granted to a subject of His Majesty who was detained illegally in jail. It is an
order of release (Jain, MP. & Jain, SN, 2007). The writ provides remedy for a person
wrongfully detained or restrained. Etymologically the words habeas corpus subi di
cendum literally mean to have the body. It is a command issued to a person or to
jailor who detains another person in custody to the effect that the person imprisoned
or the detainee should be brought before the Court and submit the day and cause of

22
his imprisonment or detention (Tanya, S., 2011). The detaining authority or person is
required to justify the cause of detention. If there is no valid reason for detention, the
Court will immediately order the release of the detained person. The writ is available
to all the aggrieved persons and it is the most effective means to check the arbitrary
arrest by any executive authority. It is available only in those cases where the
restraint is put on the person of a man without any legal justification ( Columbia
Human Rights Law

2.7.4 The Write of Quo Warranto

The term quo-warranto means by what authority. It is a writ which is used to prevent
any private person who wrongfully usurps a public office. Currently the former
procedure has been replaced by an information in the nature of a quo warranto, an
extra ordinary remedy by which a prosecuting attorney, who represents the public at
large, challenges someone who has usurped a public office or someone who, through
abuse or neglect, has forfeited an office to which she was entitled. In spite of the fact
that the remedy of quo warranto is pursued by a prosecuting attorney in a majority of
jurisdictions, it is ordinarily regarded as a civil rather than criminal action( Farlex
online Free Dictionary). The basic conditions for the issue of the writ are that the
office must be public; it must have been created by statute or Constitution itself; it
must be of a substantive character; and the holder of the office must not be legally
qualified to hold the office or to remain in the office or appointed in accordance with
law (Wikipedia).

2.7.5 The Writ of Prohibition

According to Farles online Free Dictionary, prohibition is a writ of prohibition is an
order of the High court issued to prevent an inferior court or tribunal to entertain a
matter that it has no jurisdiction in cases pending before it or acting contrary to the
rules of natural justice. It is issued by a superior court to prevent inferior courts from
usurping a jurisdiction with which it was not legally vested, or in other words to
compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is
issued in both cases where there is excess of jurisdiction and where there is absence
of jurisdiction (Buttered women’s Legal Advocacy Project, Inc.,2003). It is a

23
collateral matter progress essentially between the two tribunals, an inferior one and
other superior one by which the latter, by virtue its power of superintendence over
the former, restrains it within its rightful competence. Its nature is held to depend
upon the nature of proceeding to be prohibited. The writ can be issued only when the
proceedings are pending in a court ( Bosson, C. R. &Sanders, S.K., 1974).

2.8 Literature Gap

The literature gap in Tanzania is obvious because most of the literature in this area
are of foreign jurisdiction. Very litle has been said about judicial review in Tanzania
through analysis of cases in which citizens are challenging arbitrary public actions
through judicial review process and, little or nothing has been written on whether
judicial review is of any relevancy in the protection of the citizens rights as far as
arbitrary public actions are concerned. The literature gap can also be drawn from the
fact that one of the prominent scholars in Tanzania, Honourable Buxton David
Chipeta, the publisher of a book titled “Administrative Law in Tanzania, a digest of
cases”, he has discussed the foundation of judicial review process through his an
analysis of cases but little has been established between arbitrary public actions and
the citizens rights which is an area of focus in this very study. Even the researches
conducted, for instance, Mushi, E.G., 2009, on judicial review does not focus on the
relevance of judicial review, of which this research focuses on.

2.9 Conceptual Framework

From review of literature, the theme of relevancy of judidical review remedies in
protection of individual rights against arbitrary administrative action conceptualy can
be examined by looking at the awareness of the people on judicial raview remedies,
accessibility of the courts interms of cost, geographical location of the courts,
affordability of procedures (free from technicalities), enforcement of remedies, and
curing the injuries suffered.

24
Figure 2.1: The conceptual Framework

Awareness of the
People.

Accessibility to Protection of
courts. individual
Relevancy of
Affordable rights against
judicial
procedures arbitrary
Review
administrative
Remedies
Enforcement of action.
Remedies

Curative remedies.

Source: Synthesised by the researcher from literature review

2.10 Conclusion
This chapter has made an attempot to review the relevant literatures available on
relevance of judicial review in protection of individual rights against arbitrary
administrative action. The chapter has specifically reviewed literatures bearing on the
concept of judicial review, ground of judicial review, the role of judicial review,
individual rights, administrative action, arbitrary administrative action; and judicial
review remedies. It has been noted that even though there are many literatures on
judicial review, most of them have focuses on the meaning, grounds, procedures and
remedies of judicial review. Litle has been said or known on the relevenace of the
said judicial reveiew remedies in protection of individual rights against arbitrary
administrative action.

25
 CHAPTER THREE
RESEARCH METHODOLOGY
3.1 Introduction
Research methodology is a systematic way to solve a problem. It is a science of
studying how research is to be carried out. It is concerned with the procedures by
which researchers go about their work of describing, explaining and predicting
phenomena. It is also defined as the study of methods by which knowledge is gained
( Rajasekar, S., Philominathan, P., & Chinnathambi, V., 2013). According to
Kothari, C.R, 2004, research methodology is a way to systematically solve the
research problem. It may be understood as a science of studying how research is
done scientifically. It involves the various steps that are generally adopted by a
researcher in studying his research problem along with the logic behind them.
Research methodology has many dimensions. It involves the research methods and
the logic behind the methods used in conducting the research. It also explains why
using a particular method or technique and why not using others so that research
results are capable of being evaluated either by the researcher himself or by others.

This chapter thereofore is devoted to presentation of the methodological issues of

this research. Specifically the chaper presents the research design and approach, type
of research, the area of study, study population, sample size and sampling tchnique,
sources of data, methods of dat collection, research instuments, methods of data
presenation, analysis and interpreation and ethical issues.

3.2 Research Approach

Research approach denotes the plan and the procedures for research that spans the
steps from broad assumptions to detailed methods of data collection, analysis, and
interpretation (Strauss, A. & Corbin, J. 1998).

There are two basic approaches to research: quantitative approach and the qualitative
approach. Quantitative approach involves the generation of data in quantitative form
which can be subjected to rigorous quantitative analysis in a formal and rigid
fashion. This approach can be further sub-classified into inferential, experimental

26
and simulation approaches to research. The purpose of inferential approach to
research is to form a data base from which to infer characteristics or relationships of
population. This usually means survey research where a sample of population is
studied to determine its characteristics, and it is then inferred that the population has
the same characteristics. Experimental approach is characterised by much greater
control over the research environment and in this case some variables are
manipulated to observe their effect on other variables. Simulation approach involves
the construction of an artificial environment within which relevant information and
data can be generated. This permits an observation of the dynamic behaviour of a
system under controlled conditions. Given the values of initial conditions, parameters
and exogenous variables, a simulation is run to represent the behaviour of the process
over time ( Kothari, C.R, 2004).

Qualitative approach involves subjective assessment of attitudes, opinions and

behaviour. Such an approach to research generates results in non-quantitative form
or in the form which is not subjected to rigorous quantitative analysis ( Kothari, C.R,
2004).

Since this study involved subjective assessment of attitudes and of the people on the
relevance of judicial review remedies in protection of individual rights against
arbitrary administrative action, the researcher used qualitative approach. By this
approach the researcher managed to collect data through in-depth-interviews,
12
questionnaire survey and documentary review. The study further involved the
description and analysis of the attitude and perception of the people towards the
judiciary as a too of protecting individual rights against arbitrary administrative
action. Qualitative approach was applied because the researcher required high degree
of flexibility as literature reveals that the method is preferable when flexibility of
approach is needed to allow the discovery of the unexpected and in depth

12
In-depth-interviews is an open-ended, discovery-oriented method to obtain detailed information
about a topic from a stakeholder. In-depth interviews are a qualitative research method; their goal is
to explore in depth a respondent’s point of view, experiences, feelings, and perspectives. See Boyce,
C. (2006) Conducting in-depth-interviews: A guide for designing and Conducting In-depth-interviews
for Evaluation input, Pathfinder international.Pp.1-3. See also Marshal, C. and Rossman, B. (1989)
op.cit. P.82. Cited in Binamungu, Cs. (2013) loc.cit.

27
investigation of a particular topic (Kombo, D.K. 2006). The nature of the study
required a high degree of flexibility; therefore, qualitative approach allowed the
researcher a high degree of flexibility and interactions in conducting interviews and
administration of questionnaires to respondents.

3.3 Reseach Design

Research design means the arrangement of conditions for gathering and analysis of
information in a way which aims to merge relevance with the research objectives. It
is the structure of the research as it holds all the elements of the research project
together and show how all the major parts of the research project work together to
address the central research question (Kombo & Tromp, 2006:70). It is a detailed
plan of how the research will be done to achieve the research objectives (Adam and
Kamuzora, 2008). According to Kothari, a research design is the arrangement of
conditions for collection and analysis of data in a manner that aims to combine
relevance to the research purpose with economy in procedure. In fact, the research
design is the conceptual structure within which research is conducted; it constitutes
the blueprint for the collection, measurement and analysis of data. As such the design
includes an outline of what the researcher will do from writing the hypothesis and its
operational implications to the final analysis of data (Kothari, C. R., 2004:32).

Research design is important because facilitates the smooth sailing of the various
research operations, thereby making research as efficient as possible yielding
maximal information with minimal expenditure of effort, time and money. Research
design stands for advance planning of the methods to be adopted for collecting the
relevant data and the techniques to be used in their analysis, keeping in view the
objective of the research and the availability of staff, time and money. Research
design has a great bearing on the reliability of the results arrived at and as such
constitutes the firm foundation of the entire edifice of the research work. It further
helps the researcher to organize his ideas in a form whereby it will be possible for
him to look for flaws and inadequacies (Kothari, C. R., 2004; Kombo & Tromp,
2006).

28
In this study both case study and Longitudinal -survey design were used.13 A case
study design seeks to describe a unit in detail, in context and holistically hence,
agreat deal can be learned from a few examples of the phenomenon under study
(Kombo & Tromp, 2006:72). According to Yin (2003) a case study design should be
considered when: (a) the focus of the study is to answer “how” and “why” questions;
(b) the researcher cannot manipulate the behaviour of those involved in the study; (c)
the researcher wants to cover contextual conditions because he believes they are
relevant to the phenomenon under study; or (d) the boundaries are not clear between
the phenomenon and context. Since this study is concerned with how judicial review
is relevant in protection of individual rights and, since the only institution with such
supervisory power of review is the High Court, single case study design has been
thought of on the one hand.

On the other hand, longitudinal-survey design was used in surveying documents and
observation. Longitudinal study enabled the researcher to conduct several
observations of the same subjects over a period of time, sometimes lasting many
years. The benefit of a longitudinal study is that the researcher was able to detect
developments or changes in the characteristics of the target population at both the
group and the individual level. It extends beyond a single moment in time (Institute
for Health and Work, 2009). Since this study involved the study of the relevance of
judicial review in protection of individual rights historically, from the colonial period
to the present, longitudinal survey design was selected by the researcher so as to
complement case study design. The combination of the two design approaches
afforded the researcher a high degree of flexibility in conducting the study.

3.4 Type of study

This study is both, library and field study. It is mainly a library research as it involve
intensive review of official documents and analysis of High Court decisions on
judicial review and other relevenat documents which were not in public domain;

13
Cross-sectional survey is a research design in which data are collected in the field at the same
duration. See Binamungu, Cs. (2013) op.cit. P.19. See also Lavrakas, P.J. Encyclopedia of Survey
Research Methods, at http://srmo.sagepub.com/view/encyclopedia-of-survey-research-
methods/n120.xml

29
both, soft copies and hard copies that were obained at the High Court Libralies and
Dar es salaam University. To complement documentary data, the researcher in a
limited extent, conduct field study as described hereunder.

3.5 Area of Study

The field study was conducted in Dar – es – Salaam region, Kinondoni, Ilala and
Temeke municipalities. The three municipalities were selected because the
researcher believed that he would get reliable data because the said areas are among
the areas which have recently been subject to arbitrary public decisions made by
public authorities. Library research was conducted at Dar es Salaam University
Library and High Court library in Dar-es-salaam. Dar es salaam was selected as the
case study area due to its easy accessibity, having people from diferent parts of
Tanzania, presence of the High Court registry and because of being among the cities
which are rapidly growing, hence the citizens have been continuously subjected to
arbitrary adminitrative action such as demolition of houses for construction of
infrustructures etc.

3.6 Study Population

Study population means a group of individuals, objects or items from which samples
are taken. It is the entire group of persons or elements that have atleast one thing in
common. It is a larger group from which the sample is taken Kombo & Tromp,
2006:76). The study population is technically called the universe. The population
universe can be definite if the number of elements is certain, or infinite, if the
number of the umber of elements is uncertain. This study involve the people who
have been victims of the arbitrary public decision in Dar es Salaam region,
particularly, in kinondoni, Temeke and Ilala. The focus of the study gave an
opportunity to the affected citizens to share their experiences with the researcher as
to whether judicial review process was or is meaningful to them. Further more
various public authorities, including judicial officers formed part of the population
of study.

30
3.7 Population sample and Sample size
Population sample or sample size means the number of items to be selected from the
universe or population to constitute the sampe ((Kothari, C. R., 2004:56). Since this
study is mainly a library research, it involve only a sample size of only thirty(30)
respondents. This size will ten(10) victims of arbrary administrative action, five(5)
advocates of the High Court, five (5) judges of the High Court, five (5) municipal
council directors and five law academicians, especially in public administration and
administrative law.

3.8 Sampling techique

Sampling techniques means the procedure the researcher uses to select the items of
the sample. There are different types of sample designs based on two factors: the
representation basis and the element selection technique. However, generally the
sample may be probability sampling or it may be non-probability sampling.
Probability sampling is based on the concept of random selection, whereas non-
probability sampling is non-random sampling (Kothari, C. R., 2004:55).

Non-probability sampling is that sampling procedure which does not afford any basis
for estimating the probability that each item in the population has of being included
in the sample. Non-probability sampling is also known by different names such as
deliberate sampling, purposive sampling and judgement sampling. In this type of
sampling, items for the sample are selected deliberately by the researcher; his choice
concerning the items remains supreme. In other words, under non-probability
sampling the organisers of the inquiry purposively choose the particular units of the
universe for constituting a sample on the basis that the small mass that they so select
out of a huge one will be typical or representative of the whole. There is always the
danger of bias entering into this type of sampling technique. However, in small
inquiries and researches by individuals, this design may be adopted because of the
relative advantage of time and money inherent in this method of sampling. In
contrast, probability sampling which is also known as random sampling or chance
sampling is a sampling design in which every item of the universe has an equal
chance of inclusion in the sample (Kothari, C. R., 2004).

31
In this study the researcher used non-probability (purposive) and convinient
sampling technique. On the one hand, purposive sampling was used because the
respondents differed in importance for the purpose of this study. Hence, those who
appear more important like the victims of arbitrary administrative action and lawyers
were purposively selected and given mofre priority. On the other hand, convinient or
accedental sampling technique was used in selecting respondents on the basis of their
availability and willingness to participate in the study.

3.9 Sources of Data

Literatures suggest that there are two major sources of data: primary and secondary.
Primary sources involve the respondents in the field, and secondary sources involve
the data that has been already collected by someone else, usually found in documents
(Kombo, D.K. 2006:100). In this study, primary sources of data involve field
respondents in the areas of study and secondary data were collected from the libraries
of University of Dar es salaam and theHigh Cour of Tanzania at Dar es Salaam
registry.

3.10 Methods of Data collection

This stud employed three methods of data collection: in-depth-interviews,
questionnaire survey and documentary review.

3.10.1 In-depth-interviews
This method will involve face to face interviews between the the researcher or his
assistant and the interviewee. The researcher or his research assistant was guided by
a pre-determined interview guide containing open-ended questions. The open-ended
questions were framed in a way that probed the interviewees to express their views,
feelings, experience and practices in the area of the study. Before the interviews,
informed consent of the informants was obtained. Only the respondents who
consented to provide information were interviewed. The interviews involved not only
asking questions, but also systematic recording of responses coupled with intense
probing for deeper meaning and understanding of the responses.

32
3.10.2 Questionnaire Survey
This method involve printed questionnaires with close and open-ended questions that
were self administered by the researcher or his research assistant. This method was
used only in case some respondents were no easily accessible for face to face
interviews owing to the nature of their office or duties. This method therefore
afforded them an opportunity to provide information and for such reason it
minimised cost to the researcher.

3.10.3 Documentary Review

Collection of secondary data was done through reviewing relevant documentary
materials particularly law commission reports, judicial decisions and other relevant
documents which were accessed. Since this study is mainly library research,
documentary review was the main method of data collectinterviews and
questionnaire survey were used only for the purpose of verifying the information
gathered through library research.
The researcher thought of combining three methods of data collection in order to
provide him an opportunity of cross-checking the data collected and, hence, filling
in the gaps. Also the combination of more than one method afforded him flexibility.

3.11 Data Collection Instruments

The study employed questionnaires and interview schedules as research instruments
of data collection. The interview schedules consisted of ten pre-determined open-
ended questions. Questionnaires involved ten open ended questions that were self-
administered to the respondents who were not physically accessible for face to face
interviews. Computers were also used in storing word processed data. The
combination of questionnaires and interview schedules allowed the researcher high
degree of flexibility and reached even those respondents who could not be reached
for face to face interviews. The use of computers made it easy for the researcher to
store the word processed data.

33
3.12 Methods of Data Processing and Analysis
The data obtained were analysed and interpreted qualitatively because the research is
qualitative one. Qualitative approach involved non-numeric description and analysis
of the obtained information. The responses of the respondents were taken in form of
notes. The notes were subsequently converted into write-ups and the word processed.
After word processing the data was stored in personal computer and flash disk. Data
displays were prepared in the computer and then the data was evaluated to draw
inferences depending on the reliability of the source of the data.

3.13 Conclusion
This chapter has made a detailed discussion and analysis of the research
methodology used in conducting this research. The chapter covered several aspects
including the research approach, design, area of study, study population, population
sample, sampling design, sources of sata, methods of datacollection and methods of
data analysis. The next chapter coveres judicial approaches in the substantive and
procedural aspects of judicial review in Tanzania experience.

34
 CHAPTER FOUR
SUBSTANTIVE AND PROCEDURAL PRINCIPLE OF JUDICIAL
REVIEW: THE JUDICIAL APPROACH IN TANZANIA

4.1 Introduction
Generally, the principles of judicial review applicable in tanzania are those
formulated by common law courts in England and received in Tanzania through
British rule, and retained at independence though with some slight modifications
(Mushi, E.G, 2009:165). Some of these principles have been covered under chapter
two on literature review, thus, in this chapter the discussion of such principles is
devoted to analysis of the judicial decisions as applied by the courts in Tanzania.
Furthermore, the chapter also covers the procedural principles of judicial review as
applied by the courts in concrete cases in Mainland Tanzania.

4.2 Substantive Principles of Judicial Reveiew in Mainland Tanzania

This section analyses the major substantive principles that govern judicial review in
Mainland Tanzania. In particular, the section covers the doctrine of constitutionality
and the common law principle of utra-vires.

4.2.1 The Principle of Constitutionality and Judicial Review

Like other commonwealth countries with written constitutions, besides the common
law principle of utra-vires, judicial review is also excersied under the principle of
higher law, i.e. the constitution as the grundnorm. According to Hans Kersen’s Pure
theory of law, in a legal system there is the basic norm or grund norm which gives
validity to other laws. The basic norm determines the contents and gives validit to
other norms delived from it (Hans Kersen). Accordingly, the constitution of a
country (Tanzania inclusive) is the basic norm of the country. All laws and
government actions delive their validity from the constitution. For instance, the
constitution of the United republic of Tanzania, 1977, specifically states that;

35
 “The United Republic of Tanzania is a state which adheres to the
principles of democracy and social justice and accordingly
sovereignty resides in the people and it is from the people
that the Government through the Constitution shall derive
all its power and authority”.14

It follows therefore, the powers of the government or all administrative action are to
be exercised in accordance with the powers and procedures provided by or under the
autority of the constitution. Any action or power which abrogates the provision of the
constitution is aminable to judicial review under the principle of unconstitutionality.
In James F Gwagilo v Attorney General(1994) TLR 73 it was held that;

i) “The statutory clauses ousting the jurisdiction of the courts are ineffective
to exclude the power of the High Court to exercise its supervisory
role of judicial review conferred on it by article 108(2) of the
Constitution;
ii) The provisions of ss 6 and 7 of the Pensions Ordinance which say
an officer removed from service in the public interest has no
right to compensation for past services and no right to other
allowances he is otherwise entitled to, and which bar such
officer from presenting his claim in court are unconstitutional
and void; the plaintiff is at liberty to present his claim in court.”

The constitution vests locus stand upon any individual to institute proceedings in the
High Court in protection of the Constitution and other laws of the country. In that
respect the constitution states;

“Every person has the duty to observe and to abide by this Constitution
and the laws of the United Republic. …Every person has the right,
in accordance with the procedure provided by law, to take legal

14
Art 8(1) (a) CAP 2 R.E. 2002.

36
 action to ensure the protection of this Constitution and the laws of
the land”.15

The proviso to the above constitutional principle has been said to have established
the doctrine of public interest litigation in Tanzania by giving standing to any citizen
of Tanzania to initiate proceedings in the High court for protection of the
Constitution of the United republic of Tanzania. Furthermore, the constitution vests
locus stand to individuals to petition to the Hight Court for judicial review in
protection for their rights under Art. 30(3). Art.30(3) states that;

“Any person claiming that any provision in this Part of this Chapter or
in any law concerning his right or duty owed to him has been,
is being or is likely to be violated by any person anywhere in
the United Republic, may institute proceedings for redress in
the High Court.”16

Following the enactment of the Basic Rights and Duties Enforcement Act, the right
to petition for judicial review in the High Court for Violation of individual rights has
also been provided under s. 4 which state that;

“If any person alleges that any of the provisions of sections 12 to 29

of the Constitution has been, is being or is likely to be contravened in
relation to him, he may, without prejudice to any other action with
respect to the same matter that is lawfully available, apply to the
High Court for redress.”17

The provisions of Art. 26 and Art.30(3) of the constitution of the United Republic of
Tanzania, has been applied by humaan rights activists in different applications to the
High Court like Rev. Christopher Mtikila v. the Attorney General [1995]TLR 31,

15
Art. 26. Ibid.
16
Ibid.
17
S.4 CAP 3R.E 2002.

37
and Legal and Human Rights Centre (LHRC), Lawyers' Environmental Action Team
(LEAT), National Organization for Legal Assistance (NOLA) v AG, High Court of
Tanzania at Dar es Salaam, Misc. Civ. Cause No.77 of 2007.

4.2.2 The Principle of Ultra-vires and Judicial Review

In chapter two, the concept of ultra-vires has been extensively discussed in general.
In this section therefore only the question of it is discussed as it has been applied in
Tanzania. According to Mushi, E.G. 2009, in public law, the doctrine of ultra vires is
adopted from Private Law to examine the validity of the action of the administrative
agency with reference to the authority by which it has been constituted; the purpose
for which it has been given various kinds of powers and the procedures which it is
supposed to follow in various transactions.
In Tanzania the power and functions exercised by the administration are either
confered upon them by the Constitution or parliamentary statutes. It follows
therefore, if the action of the administrative authority is outside the authority given to
it by the constitution or the Statute, the action in question would be declared ultra
vires. In James F Gwagilo v Attorney General (1994) TLR 73 it was held that the
prerogative power of the Crown to dismiss a civil servant at will ended, and did not
devolve to the President, when Tanganyika became a Republic in 1962; instead the
President could only remove a civil servant in the public interest under s 20(3) of the
Civil Service Act 1962, Cap 509, now replaced by the Civil Service Act 1989 (Act No
16 of 1989).

The question whether a certain action of the administrative agency is intra vires or
ultra vires depends upon the interpretation of the instrument which confers authority
upon that administrative organ or authority.
The doctrine of ultra vires has two aspects, namely substantive ultra vires and
procedural ultra vires. This is to say, an act of a public authority may be invalid on
the ground of substantive ultra vires when it is not authorized or is forbidden to do
such an act; Similarly, its act may also be invalid on the ground of procedural ultra
vires if it fails to observe the procedural requirements laid down by the enabling Act
or parent Act for it to follow (Mushi, E.G.,2009).

38
4.2.2.1 The Doctrine of Substantive Utra-vires
In Tanzania, like other common law jurisdictions, the action of administrative agency
may be declared ultra vires if it exceeds the authority given to it by the empowering
Act or the Act itself is unconstitutional. An act may be ultra vires if it is done by a
wrong person; or the person required by the the law to perform the act is missing; or
if it is done by the proper person properly appointed but that person exceeds the
power given to him by law; or if the power is unreasonably used, or used with bad
faith or mala fide (Mushi, E.G.,2009; Jain, M.P. &. Jain, S.N., 2007). In Said Juma
Muslim v Attorney-General (1997) TLR. 3 the applicant sought an order of certiorari
to bring up and quash a decision of the President of the United Republic ‘retiring’ the
applicant, an immigration officer, in the public interest. It appeared that the applicant
had been employed by the Government of Tanzania for some years without having
been subjected to any disciplinary sanction. The applicant had read a newspaper
report of his dismissal for allegedly receiving bribes. About two months later the
applicant received a letter informing him of his retirement. The application
succeeded. In granting the application Samatta, JK held;

i) “The common law principle that a civil servant was dismissible at

pleasure of the President was not part of the law of Tanzania;

ii) That the letter informing the applicant of his retirement cited
provisions of law which were incompatible and this had caused
the applicant considerable embarrassment;

iii) The Standing Order which provided that all appointments

were at the pleasure of the President was invalid as it was in
conflict with the provisions of the Constitution…”

Also in James F Gwagilo v Attorney General (supra) the plaintiff, a seasoned civil
servant, was charged under the Economic and Organised Crime Control Act 1984
and acquitted. Then disciplinary proceedings were instituted against him under the
Civil Service Regulations; the proceedings ended in his favour. He was then removed

39
from office by the president as stated in the letter communicating the decision to
remove him, the President directing that he be removed in the public interest. He
filed a suit for a declaration that his removal from office was wrongful. The
defendant raised a preliminary point to the effect that the court had no jurisdiction to
try the case because the President had a prerogative power to remove a civil servant
in the public interest; that civil servants held office at the pleasure of the President;
and that the President’s decision to remove a civil servant in the public interest could
not be enquired into by any court. It was held that;

i) “The prerogative power of the Crown to dismiss a civil servant at will

ended, and did not devolve to the President, when Tanganyika
became a Republic in 1962; instead the President could only
remove a civil servant in the public interest under s 20(3) of
the Civil Service Act 1962, Cap 509, now replaced by the Civil
Service Act 1989 (Act No 16 of 1989);

ii) Removal of a civil servant at the will of the President is not the
same thing as removal in the public interest; in the former the
president need not show the cause for the discharge while in
the latter he must show the public interest being served;

iii) The notion of a subjective or unfettered discretion is contrary

to the Rule of Law; although the Civil Service Act 1989 says
that the President may remove a civil servant from office if he
considers it to be in the public interest to do so, the discretion
of the President must nevertheless be exercised objectively and
the High Court may enquire into that exercise to see if it was
properly exercised.”

4.2.2.2 The Doctrine of Procedural Ultra-vires

Procedural ultra vires means failure to observe procedural requirements. An act of a
public authority may be held to be invalid if it fails to observe the mandatory

40
procedural requirements for doing the act in question (Mushi, E.G.,2009). Such
procedures are usually provided by the Constitutiion or Parliamentary statute. For
instance the procedures of disciplinary proceedings against judges under Art.120A,
or procedures of disciplinary proceedings of a public servant under the Public
Service Act, 2002. Besides the statutory procedures, there are the principles of
Natural Justice. Usually where the decision or action taken by the administarative
authority is quasi-judicial, the decision maker must observe the rules of natural
justice, namely, the right to be heared, rule against bias or the principle of faireness
and the duty to give reasons (Bisimba, H.K & Peter,C.M.,2005). Failure to observe
the rules of natural justice, renders the action or decision made by an administrative
authority bad in law; hence invalid as being procedurally ultra-vires. The judiciary in
Tanzania has in many cases quashed several administrative decisions and action on
the basis of the vires doctrine. In Ndesamburo V. Attorney General (1997) TLR 137,
the applicant applied for the prerogative orders of certiorari and mandamus seeking
to set aside a decision of the Minister of Lands and Housing revoking the right of
occupancy of a certain serf. No consideration was made to the party’s defence
before making decision affecting him. That is the applicant reasons which he had
furnished had not been taken into consideration in deciding whether or not his right
of occupation should be revoked. Msumi, J., held that the principle of natural justice
which required that a person had to be afforded an opportunity to defend himself
necessarily implied that the person determining the matter would consider the party’s
defence before making a decision which affected the right of the party. Failure to
consider such defence was a bad as not affording the party the opportunity of a
hearing. The President had not considered the grounds given by the applicant before
the right of occupancy was revoked. Thus, the application was allowed. Also in
James F Gwagilo v Attorney General (supra) the court held that;

i) “When removing a civil servant in the public interest, the president is

bound to give reasons indicating the public interest to be served;
under the Constitution the civil servant so removed has the
right to appeal against, or to apply for judicial review of, that removal
and if no reasons are given therefore, that constitutional right will

41
 be rendered ineffective and illusory;

ii) Disclosure of reasons for removal of a civil servant in the public interest
is also necessary so as to reduce the possibility of casualness, arbitrariness
and abuse of power in the decision making process and to instill
public confidence in it and maintain its integrity, and to satisfy a
basic need for fair play.”

Therefore, any power exercised by an administrative authority aught to be exercised

within the ambit of the power limits confired upon such authority and within the
procedures setforth by the law confering the power or in absence of such a
procedural law in accordance with the the rules of natural justice if the power so
exercised is quasi judicial in nature. In Muhidini Ahmad Ndolanga and Others v.
National Sports Council and Another (1996) TLR. 325 the power of National Sports
Council appointing as screening committee to screen applicants for Football
Association of Tanzania executive committee and application of rules of natural
justice (rule against bias) were in issue.

The applicants applied for an order of certiorari to quash the decision of the
Screening Committee of the National Sports Council (the respondent) barring the
applicant from contesting the election for the Executive Committee of the Football
Association of Tanzania (FAT). The applicants alleged that the Screening Committee
lacked authority to act and the Chairman ought to have recused himself as he was
unable to act without a tint of bias against the first applicant. After examination of
the submissions of both parties the court held that;

i. “The National Sports Council was a body corporate established by

Act 12 of 1967 and one of its duties was to screen candidates
for FAT leadership. The power to make regulations for the
establishment and composition of committees was contained in
s. 28 (d) of Act 6 of 1971. It appeared that no regulations had been
made by the Minister in terms of s 28. In the absence of clear guidelines

42
 it could not be said that the committee acted without authority:
it was for the applicant to tell the court what procedure, legal or
otherwise, had been flouted by the chairman or the committee
itself. The respondent, in its wisdom, had adopted a practice and in
the absence of a clear breach of a particular law or regulation
pertaining to the activities of the set up committee the committee’s
actions could not be held to be unlawful.

ii. Although the chairman of the respondent denied the allegations of

having a grudge against the first applicant, it was quite a plausible
proposition and the chairman ought to have refused himself from
chairing the committee when he knew that the first applicant was
one of the candidates”.

In this case therefore, the application was upheld upheld on the ground of failure of
observance of the rules of natural justice. Even though the authority did not act
beyond the power onfired upon it, but failed to adhere to the rules of natural justice
hence the decision held nul and void.

4.3 Procedural Principles of Judicial Review in Tanzania

This section discusses the important procedural technicalities that are to be observed
in application for judicial review in Mainland Tanzania. In particular, the section
covers the law governing application for judicial review, stages involved in
application for judicial rview, the manner of application (namely the documents
required to move the court), the important information to be included in the
application, the question of locus stand under private and public interest litigations.

4.3.1 The Law Governing Application for Judicial Review

In Tanzania judicial review can be applied on the basis of constitutional remedies,
namely, where the claim is based on breach of the individual basic rights and duties
contained under Art.12 to 29 of the Constitution and the prerogative writs. For that
reason, the law and nature of remedy applied for, will differ depending on the

43
remedy thought of. If the review is based on the former, the governing law is the
constitution of the united republic of Tanzania, 1977, in particular Art 26 and 30(3)
and ss. 4,5 and 8 of the Basic Rights and Duties Enforcemnt Act, 1994. If the review
is based on the latter, the applicable law is ss 17, 18 and 19 of the Law Reform (Fatal
Accidents and Miscellaneous Amendments Act, CAP 310 R.E.2002 and the Civil
Procedure Act, CAP 33 R.E 2002. The provisions of the above named laws are
discussed in details under sections 4.2.2 and 4.2.3 bellow.

4.3.2 Application for Judicial Review: Prerogative Remedies

Application for judicial review or for prerogative renmedies involves two stages:
leave stage and hearing stage. In the first stage the application for leave to apply for
prerogative orders is instituted by a chamber summons accompanied by a statement
of the grounds for the thought relief and an affidavit.

As mentioned under section 4.2.2 above prerogative remedies are applied for under
ss 17(2) and 18 of CAP 310. Section 17 provides for the power and procedures for
applying for prerogative remedies and the appeals thereto. For the purpose of clarity
the section is hereby quoted in verbatum.

“17(1) ………...............................................................................
17(2) In any case where the High Court would but for subsection (1)
have had jurisdiction to order the issue of a writ of mandamus
requiring any act to be done or a writ of prohibition
prohibiting any proceedings or matter, or a writ of certiorari
removing any proceedings or matter into the High Court for any
purpose, the Court may make an order requiring the act to be
done or prohibiting or removing the proceedings or matter,
as the case may be.

(3) No return shall be made to any such order and no pleadings

in prohibition shall be allowed, but the order shall be final, subject
to the right of appeal there from conferred by subsection (5).

44
 (4) In any written law, references to any writ of mandamus,
prohibition or certiorari shall be construed as references
to the corresponding order and references to the issue or
award of any such writ shall be construed as references to
the making of the corresponding order.

(5) Any person aggrieved by an order made under this section

may appeal therefrom to the Court of Appeal.”

One of the important requirement in application for judicial review is the summon of
the Attorney General in the leave stage. This is provided under section 18(1& 3) of
CAP. 310 which states;

“Where leave for application for an order of mandamus, prohibition

or certiorari is sought in any civil matter against the Government, the
court shall order that the Attorney-General be summoned to appear
as a party to those proceedings; save that if the Attorney-General does
not appear before the court on the date specified in the summons, the
court may direct that the application be heard ex parte ... For the
purposes of this section the term "Government" includes a public
officer and any office in the service of the United Republic
established by or under any written law.”

The purpose of the leave stage is to to weed out frivorous and vexatious applications.
Leave of the court is a necessary pre-condition to the making of an application for
judicial review, and no application for judicial review may be made unless this leave
has first been duly obtained ( Halsbury’s Laws of England). In Kahama Gold Mines
V Minister for Energy, High Court of Tanzania at Dar es Salaam, Misc. Civ. Cause
No.127 of 1989 the court observed that under the leave stage the applicant only
needs to show that there is a substantial question to be resolved by the court.

45
The Leave stage is merely preliminary or interlocutory stage. In Karibu Textile Mills
Limited v New Mbeya Textile Mills Limited and 3 Others, Civil Application No. 27
of 2006 the Court of Appeal was called upon to considered whether it could revise a
decision in an application for leave to apply for the orders. The Court decided that
such a decision was interlocutory because it did not finally and conclusively
determine the rights of the parties and, therefore, it was not subject to revision by the
Court.

Similarly, in the case of the Senate of University of Dar es Salaam v Edmund Amin
Mwasaga and 4 Others, Civil Appeal No. 83 of 1999, it was held that section 17(5)
of Cap 310 is invoked only if a final decision in an application for the orders has
been given. In this appeal, the respondents had obtained ex parte leave to apply for
the order of certiorari against the appellant. Having obtained leave, the respondents
proceeded to apply for the order to quash a decision by the appellant to discontinue
the respondents from studies at the University. The appellant raised a preliminary
objection to the application, arguing that the application was incompetent because it
was based on invalid ex parte proceedings. The objection was overruled. The
appellant appealed to the Court of Appeal. Mr. Magesa, counsel for the respondents,
raised a preliminary objection to the appeal arguing that the appellant had no right of
appeal under section 17(5) of Cap 310 but should have obtained leave to appeal
under section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. The Court upheld the
preliminary objection. It is said section 17(5) of the Ordinance (what is now section
17(5) of Cap. 310) apply for the orders which finally determine an application for the
prerogative orders of certiorari one way or the other. The orders which do not touch
on the substantive matter provided for under section 17(2) are not covered under the
provisions of subsection (5) of section 17 of the Act”.

Very recently in Attorney General V Wilfred Onyango Mganyi and 11 Others, Court
of Appeal of Tanzania at Arusha, Criminal Appeal no. 276 of 2006, the Court of
Appeal was called upon to determine the Whether an Order for a grant for leave to
the respondents to apply for the orders of Certiorari and Prohibition is appealable.
Facts of this case briefly were as follows. In Miscellaneous Criminal Application No.

46
7 of 2006 which was filed in the High Court at Moshi, the respondents sought leave
of the High Court to apply for the Orders of Certiorari and Prohibition and also for
an Order staying criminal proceedings in four criminal cases which were before the
Court of Resident Magistrate, at Moshi. The High Court, Mkwawa, J, on 1st June,
2006 granted leave to the respondents to apply for the orders of Certiorari and
Prohibition but declined to order stay of the proceedings in the Court of Resident
Magistrate.

The Attorney General was aggrieved by that decision and lodged an appeal to Court
of Appeal, which is Criminal Appeal No. 276 of 2006. Five days before the appeal
came for hearing the learned advocate for the respondents, lodged a Notice of
Preliminary Objection under rule 100 of the Court of Appeal Rules, 1979, (the Rules)
on two grounds that the appeal is incompetent as the impugned order against which
the appeal was lodged is not appellable and that even if the order were appellable, the
appellant lacked locus standi to institute the appeal because he was not an aggrieved
party/person.

At issue before the Court of Appeal was the question whether the appeal by the
Attorney General was lodged under section 17 (5) of the Law Reform (Fatal
Accidents and Miscellaneous Provisions) Act, Cap. 310 of the Revised Edition,
2002, henceforth to be referred to only as Cap. 310, or that it was barred by
paragraph (d) of section 5 (2) of the Appellate Jurisdiction Act, 1979 as amended by
Act No. 25 of 2002, henceforth, the Act.

The learned advocate for the respondents submitted that section 17 (5) of Cap. 310
did not apply. That provision relates to a final decision in an application for any of
the orders of mandamus, prohibition and certiorari. It did not apply to a decision in
an application for leave to apply for these orders. The application for leave to apply
for the orders merely ends in an interim or interlocutory decision. On the other hand,
Mr. Boniface for the AG argued that under section 17 of Cap. 310 there are two
distinct and separate stages involved. The first distinct stage is the one in which leave
of the court is sought so that a party can apply for the orders of certiorari, mandamus

47
and prohibition. If leave is refused, that is the end of the matter and an aggrieved
party may wish to appeal against such refusal. If, however, the leave to apply for the
orders is granted, then the applicant proceeds to the next stage. If a person is
aggrieved by the order granting leave, he should as well be able to appeal against the
order. The orders sought after leave has been obtained may or may not be granted by
the High Court. In either case, an aggrieved party may wish to appeal to the Court of
Appeal. Mr. Boniface submitted that section 17 (5) of Cap. 310, therefore, applied in
the case of the appeal which the Attorney General preferred against the order of the
High Court granting leave to the respondents to apply for the prerogative orders.

In addressing the arguments by both parties the court stated;

“It appears to us obvious that section 17 of Cap. 310 apart from

prohibiting the High Court from issuing prerogative writs of
mandamus, prohibition and certiorari, it provides for the jurisdiction
of the High Court to issue the orders of mandamus, prohibition
and certiorari, henceforth to be referred to only as the Orders.
It also provides for a right of appeal by an aggrieved party
where a application for the orders is either granted or refused.
It does not deal with applications for leave to apply for the orders.
That being the position, section 17 (5) discussed above cannot be
cited as the authority for a right to appeal against the grant or
refusal of leave to apply for the orders.

Subsection (5) of section 17 as quoted specifically refers to a person

who is “aggrieved by an order made under this section..”, meaning
section 17. An application for leave to apply for the orders is
simply a prerequisite to an application for the orders. In our view
it is misleading to consider, as Mr. Boniface argued, the application for
leave to apply for the orders as a separate and distinct process from
the application for judicial review. It is a necessary step to an application
for the orders. The Law Reform Act gives the right to appeal against

48
 the orders of certiorari, mandamus and prohibition. While the right to
appeal is cherished, it is trite law that it is either specifically conferred
by the Constitution or by statute and the right cannot therefore be
implied or inferred.

However, the appeal which the Attorney General intended to pursue in

this case relates to a criminal matter and as mentioned elsewhere earlier
in this ruling, it does not come under section 5 (1) (c) of the Act. … that
an application for leave to apply for the orders of certiorari, mandamus
and prohibition is an interlocutory proceeding and that an appeal
against such a decision would offend paragraph (d) of section 5 (2)
of the Act. We wish to conclude this ruling by upholding the
preliminary objection by Mr. Loomu-Ojare and strike out the
appeal as incompetent. It is so ordered.”

When dealing with an application for leave to apply for judicial review, the first and
foremost consideration which the court must determine is whether the applicant has
shown that he has sufficient interest in the matter to which the application relates (
Halsbury’s Laws of England). Under section 18(3) of CAP 310, an application for
leave to apply for orders of certiorari and mandamus has to be made within six
months of occurrence of injustice on the part of the Applicant. In Pc Julius Mkomwa
v Inspector General and Attorney General, High Court of Tanzania, Misc. Civil
Application No.308 of 2003, the Applicant's application for leave to file an
application for the orders of certiorari and mandamus to quash the decision of his
dismissal from the Police Force where he had been engaged as a Police Constable
and to compel the Inspector General of Police to reinstate him to his employment
was struck out on the ground that it was filed out of the six months period.

However, the six months period does not include the time required for obtaining a
copy of the ruling from which it is sought to appeal. In Senzia Alphonce Mbaga and
Six Others v. Chairman of the Election Commission (1996) TLR. 102 the Election
Complains Panel of the Electoral Commission of Tanzania in Election Complaint no.

49
47 of 1990 had dismissed with costs an election complaint lodged by Seven
complainants, the present Applicants, against one Chediel Yohane Mgonja and the
Attorney General. The panel had upheld two preliminary objections raised by the
Attorney General that the complaint was time-barred, and also that the complainants’
allegations were not supported by any previous complaint made through the
supervisory delegates’ or the Returning Officer’s reports, as required by Section
40(1) of the Elections Act. The Applicants contended that, in upholding the
preliminary objections taken, the Panel denied them their right to be heard by the
Panel before it took its decision to dismiss their complaint. In consideration of the
submission of both parties the Court held that the six-month period stipulated in
Section 18(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions)
Ordinance for the application for leave, must be taken to exclude the time required
for obtaining a copy of the ruling from which it is sought to appeal

The application must be supported by valid documents (affidavit). In Hashimu Jongo

& 41others v. AG, Misc. Civil Appeal No.41 of 2004, an afidavit which did not
comply with the mandatory requirements of the law namely a Jurat which states the
place and date on which the oath of affidavit was taken or made was struck out.
Furthermore, in application for judicial review the applicant under the leave stage
should indicate that he has sufficient interest on the matter. However, the question of
locus stand is different when it comes to public interest litigations. The Constitution
under Art.26 and Art 30(3)vest locus stand to any citizen of Tanzania to apply for
judicial review in the High Court for protection of the Constitution and the law of the
Country. This point of locus stand and public interest litigations was extensively
discussed in Rev. Christopher Mtikila v. the Attorney General[1995] 31.
Rev. Christopher Mtikila v. the Attorney General was an unusual petition as the
Court itself stated. It was a petition which constituted several petitions in one ranging
from challenges to the validity of divers laws to the protection of the Constitution
and legality. The petition originally raised very diverse issues, many of them usher
political in flavour and substance, and this prompted Mr. Mussa to raise a point of
preliminary objections grounded in questions of the petitions locus standi.

50
Arguing the question of locus standi, Mr. Mussa submitted that the petitioner had to
show a sufficient interest in the outcome. He considered this to be implied in Art. 30
(3) of the Constitution. In his view the petitioner had to demonstrate a greater
personal interest than that of the general public, and cited the Nigerian case of
Thomas & Ors. v. Olufosoye (1986) LRC (const) 639 in support of his argument. In
that case it was held by the Court of Appeal that under s. 6 (6) (b) of the 1979
Nigerian Constitution it was necessary for the appellants to establish a sufficient
interest in maintaining the action and this should be a personal interest over and
above that of the general public. Basing on this, Mr. Mussa went on to assert that the
crucial factor in the petition was the petitioner himself and not the contents of the
petition. Furthermore, he contended that Art. 26 (2) of the Constitution did not in
itself confer locus standi.
In response Mr. Mbezi argued that standing was certainly conferred on the petitioner
by Art. 26 (2) and that personal interest (or injury) did not have to be disclosed in
that context. He maintained that the alleged illegality of the laws was sufficient to
justify the petition under that provision. Mr. Mbezi further stated that the petitioner
acquired locus standi under Art. 30 (3) as well and referred to the dispersal of his
meeting under the provisions of the Police Force Ordinance, the refusal to register
his party under the provisions of the Political Parties Act an the banning of Michapo
and Cheka newspapers (his alleged mouthpieces) as sufficiently demonstrating the
petitioner`s interest within the contemplation of Art. 30 (3). Mr. Mbezi further
argued that in view of the provisions of Art. 64 (5) the Court could be moved into
action by any petitioner.
After examination of the submission made by both parties and after making reference
to development of the doctrine of locus stand in various common law jurisdiction
LUGAKINGIRA, J., granted standing to the petitioner as he stated:

“It was necessary to treat the subject to this length in order to

demonstrate that Mr. Mussa`s appreciation of locus standi in the
context of constitutional litigation no longer hold good. The
notion of personal interest, personal injury or sufficient interest
over and above the interest of the general public has more to do

51
 with private law as distinct from public law. In matters of public
interest litigation this Court will not deny standing to a genuine and
bona fide litigant even where he has no personal interest in the matter.
…The relevance of public interest litigation in Tanzania cannot be
over-emphasized. Having regard to our socio-economic conditions,
this development promises more hope to our people than any other
strategy currently in place. First of all, illiteracyis still rampant.
… Secondly, Tanzanians are massively poor…Given all these and
other circumstances, if there should spring up a public-spirited
individual and seek the Court`s intervention against legislation
or actions that pervert the Constitution, the Court, as guardian and
trustee of the Constitution and what it stands for, is under an
obligation to rise up to the occasion and grant him standing.
The present petitioner is such an individual.”18

The move and judicial spirit initiated in Rev. Christopher Mtikila V the AG of
garanting locus stand for public interest litigation was further developed and applied
in Legal and Human Rights Centre (LHRC), Lawyers' Environmental Action Team
(LEAT), National Organization for Legal Assistance (NOLA) v AG. This petition
ment to annul that part of Act No. 4 of 2000 which amended s. 98 (2) of the Elections
Act by deleting and replacing it by a new subsection and adding a new sub section 3.
According to the Petitioners the impugned provisions were violative of Articles 13
(1) (2), 21 (1) (2) and 29 (1) of the Constitution of the United Republic of Tanzania;
on the ground that they encourage corruption in elections, impinge on the right to
equality before the law and the citizens rights to vote and be voted in fair and free
elections. They further argued that the provisions also infringe several international
human rights instruments to which Tanzania is a party.
The question of locus stand of the petitioners also issued in this petition. the
Honourable Attorney General resisted the petition both in substance and on two
preliminary objections. The Respondent thought that the Petitioners had no locus

18
Rev. Christopher Mtikila v. the Attorney General [1995]TLR 31.

52
standi as they are not persons contemplated by Article 30 of the Constitution and
secondly that there is no cause of action. In resolving the same the Massati J (as he
then was) granted standing to the petitioners as he stated that:

“under the Interpretation of Laws and General Clauses Act,

(Cap 1) the petitioners, as body corporates, are "persons" for the
purposes of Article 30 (2) of the Constitution; and that they have
sufficient interest in this public interest litigation”.

4.3.3 Application for Judicial Review Under the Basic Rights and Duties
Enforcement Act, 1994
The Basic Rights and Duties Enforcement Act, 1994. Provides for the procedures for
enforcemnet of Constitutional Basic Rights and Duties. Under section which is in
perimaterial with Art 30(3) of the Constitution of the United Republic of Tanzania,
CAP 2 R.E. 2002 provides that:

“If any person alleges that any of the provisions of Art.12 to 29

of the Constitution has been, is being or likely to be contravened in
relation to him, he may, without prejudice to any other action with
respect to the same matter that is lafull available , apply to the
High Court for redress”

According to section 5, the application to the High Court under the Basic Rights and
Duties Enforcement Act, must be done by originating summons that is the summons
for instituting a case. The content of the summons is provided under section 6,
namely:
i) The name and address of the pertitioner;
ii) The name and address of each person against whom the redress is thought;
iii) The ground upon which redress is sought;
iv) The specific Art. In Pat III of the Chapter one of the Ciostitution which is the
basis of the petition;
v) Particulars of the facts, but not the eveidence to prove such facts;

53
vi) The nature of redress thought.

Before the court exercises its power under it must be satisfied that adequate means of
redress of the alleged contranvention is available; and determine whether the
application is frivolous, vexatious or otherwise( ss 8(2) & 10(1). This pre-hearing
stage can be dtermined by a single judge, but the hearing must be determined by
three judges.

It is important to note that under the Bisic Rights and Duties Enfrocement Act, the
High Court is barred from granting prerogative remedies which are granted under the
CAP310. Section 8(4) categorically states that;

“For the avoidance of doubt, the provisions of PartVII of the Law

reform (Fatal Accidents and Miscelleneous Amendment Provisions)
Act, CAP 310 which relate to the procedure for and the power of
the High Court to issue prerogative orders, shall not apply for the
purpose of obtaining redress in respect to matters covered by
this Act”.

Like the case for prerogative orders the Attorney general must be a party to the
proceedings. Section18 of CAP310 specifically provides that;

“In any proceedings involving the interpretation of the Constitution

with regard to the basic freedoms, rights and duties specified in Part
III of Chapter I of the Constitution, no hearing shall be commenced
or continued unless the Attorney-General or his representative
designnated by him for that purpose is summoned to appear as a
party to those proceedings; save that if the Attorney-General
or his designated representative does not appear before the
Court on the date specified in the summons, the court may direct that
the hearing be commenced or continued, as the case may be, ex parte”.

54
It is also impotant to neote that the issue of locus stand is not the same for
prerogative remedies and constitutional remedies. Under the prerogative remedies
the person agrieved must satisfy the court that he has personally sufficient interest to
apply for the writ but for the protection and enforcemnt of basic rights and duties
one who is otherwise not personally affected can institute a proceeding under the
doctrine public interest litidgation as discussedn in Rev. Christopher Mtikila v AG
(supra).

4.3.4 Grounds for the Issue of Certiorar and MandamusPrerogative: the Court
Practice in Tanzania
Besides the general substantive and procedural principles of judical review discussed
above, every prerogative remedy has certain conditions to be fulfilled before it is
granted. This section discusses the conditions for the grant of certiorari and
mandamus as discussed by the judiciary in Mainland Tanzania.

4.3.4.1 Grounds for the Issue of the Writ of Certiorari

The grounds for the issue of the writ of certiorari have briefly been covered under
chapter two on literature review. The said common law grounds have also been
adopted in Mainland Tanzania mutatis mutandis. In the case Sanai Murumbe and
Another v. Muhere Chacha (1990) TLR. 54 the Circumstances under which the
prerogative orders of Certiorari may issue was in question. Briefly, the facts of this
case were as follows, while 145 head of cattle of the respondent and another person
were being moved from Mugumu to Mugeta village in Bunda District they
disappeared at Singisi village, Serengeti District. It was sought to order the Singisi
villagers to compensate the respondent. Consequently an inquiry was instituted in the
District Court of Mugumu under section 15 of the Stock Theft Ordinance, Cap. 422.
The inquiry was instituted before seizing the cattle. Being dissatisfied with the proof
of the claim the District Court dismissed it. As that decision was not appealable, the
aggrieved party applied for and was granted an order of certiorari by the High Court.
After quashing the proceedings the judge went further and ordered the villagers to
compensate the respondent.

55
On appeal, the compensation order was attacked. It was submitted that the judge was
wrong in treating the matter as if it was an appeal. It was further contended that the
judge acted beyond the scope of his jurisdiction. The appeal court considered the
matter raised and also the proper procedure to be followed under section 15 of the
Stock Theft Ordinance. It was held that;

i) An order of certiorari is one is issued by the High Court to quash the proceedings
of and decision of a subordinate court or tribunal or public authority where,
among others, there is no right of appeal;
ii) The High Court is entitled to investigate the proceedings of a lower court or
tribunal or public authority on any of the following grounds apparent on the
record:
 taking into account matters which it ought not to have taken into account;
 not taking into account matters which it ought to have taken into account;
 lack or excess of jurisdiction;
 conclusion arrived at is so unreasonable that no reasonable authority could ever
come to it;
 rules of natural justice have been violated; and
 illegality of procedure or decision.

4.3.4.2 Ground for the Issue of the Writ of Mandamus

The judiciary in Mainland Tanzania once discussed five conditions for the issue of
Mandamus in John Mwombeki Byombalirwa v. The Regional Commissioner and
Regional Police Commander (1986) TLR.73 in this case the applicant was one of
suspected economic saboteurs. He was arrested in March 1983 and a substantial part
of his property valued at Shs. 11,675,680/= was seized (excluding beer and
Konyagi). He was charged with hoarding property but the special tribunal acquitted
him and ordered that the seized property be restored to the applicant. The
government officials involved did not comply with the order hence the application
for an order of mandamus to issue. In the said case the court observed that in order
the writ of mandumus to issue five conditions must be fulfilled.

56
i) That the applicant must have demanded performance and the respondents must
have refused to perform;
ii) Thet the respondents as public officers must have a public duty to perform
imposed on them by statute or any other law but it should not be a duty owed
solely to the state but should be a duty owed as well to the individual citizen;
iii) That the public duty imposed should be of an imperative nature and not a
discretionary one;
iv) That the applicant must have a locus standi, that is he must have sufficient
interest in the matter he is applying for;
v) That there should be no other appropriate remedy available to the applicant.

The court having been satisfied that all the conditions are fulfiled allowed
application. It follows therefore in Tanzania, an individual to be granted the writ of
Mandamus mast satisfy the court that all the above conditions have been fulfilled.

4.4 Conclusion
This chapter has made a thorough discussion and analysis of the substantive and
procedural principles related to judicial review of administrative action in Main land
Tanzania as provided by statutes and interpreted by the courts. In particular the
chapter has covered the procedures for application of prelogative remedies under
CAP 310 and the constitutional remedies under the Basic Rights and Duties
Enforcemnt Act. Various judical decisons have also been discussed. Chapter five
next coveres presentation and and analysis and discussion of findings.

57
 CHAPTER FIVE
PRESENTATION ANALYSIS AND DISCUSSION OF FINDINGS

5.1 Introduction
This study aimed at examining the relevancy of judicial review in protecting the
citizen’s rights against arbitrary Administrative action. To meet this general
objective, several specific objectives were made. The specific objectives were: to
determine the role of judicial review in protection of individual rights against
arbitrary administrative action; to determine the awareness of the people on the role
of judicial review in protection of individual rights; to examine the effectiveness of
judicial review remedies against arbitrary administrative action; to examine the
perception of the people on the relevancy of judicial review in protecting their
fundamental rights; and to determine the required improvements on judicial review
in protecting the individuals rights against arbitrary administrative action.

To meet the specific objectives the researcher developed some research questions,
namely; what is the role of judicial review in controling arbitrary administrative
action? To what extent is judicial review relevant in protecting individual rights
against arbitrary adminstrative action? Are the judicial reveiew remedies sufficient in
redressing the individuals affected by arbitrary administrative action? What is the
perception of the citizens on the role of judicial review in protection of their rights;
and What improvements (if any) are required to make judicial review relevent in
protection of individual rights against arbitrary adminstrative action?

Since the study is mainly a library research, answers to the above questions have
been obtained through documentary review, in particular therough analysis of cases.
However, for the purpose of verification of documentary information, field study was
conducted in which a few selected respondents as discussed in chapter three were
approached for indepth interview and throught questionnaires.
This chapter therefore presents and makes a discussion and analyses of the findings
so obtained in accordance with the study objectives and research questions. The

58
chapter starts with brief description of the demographic characteristics of the
respondends.

5.2 Demographic Characteristics of Respondents

Demographic characteristic considered in the study were age of the respondents
level of education and occupation. They were used to asses the awareness and
perception of the people on the role of Judicail Review in protection of Individual
rights against arbitrary administarive action. Since this study is mainly a library
research, it involved only a sample size of only thirty (30) respondents. This size
involved ten(10) victims of arbitrary administrative action, five(5) advocates of the
High Court, five (5) judges of the High Court, five (5) municipal council directors
and five law academicians. Among these respondents, ten (10) were males and
twenty (20) were females. All of the respondents were adults and educated to a
minium level of form six secondary education and to a maximum of university
education.

5.3 The Role of Judicial Review in Controlling Arbitrary Administrative Action

The Constitution of the United Republic of Tanzania permits any person whose
human right or freedom has allegedly been infringed or is threatened, to apply to a
competent court for redress. According to Harold R. Nsekela J., 2010 the courts’
human rights protective role is exercised through judicial review, and particularly
constitutional review. In Tanzania, the main means by which human rights abuses
may be legally vindicated by victims is through the High Court. It has been observed
in chapter four that the constitution under Art. 26 and 30(3) vests the right to any
person whose rights are contravened or likely to be convined to apply to the court for
judicial review.
The High Court has played a significant pro-active role in protecting human rights
even when the Government was taking too long to provide for procedure for
enforcement of human rights as enshrined in the Constitution. The role of the
judiciary in that respect was started by bold judges like Mwalusanya, J, Lugakingila,
J, Samata CJ etc through judicial activism. A few cases can be cited as an example of
such role of the Court. The Case Chumchua s/o Marwa v. Officer In Charge of

59
Musoma Prison and the Attorney General High Court of Tanzania at Mwanza,
Miscellaneous Criminal Cause No. 2 of 1988 was the first case to be decided after
the enactment of the Bill of Rights. It was held in this case that the Bill of Rights
could be enforced even when the rules and procedure were yet to be enacted by the
government. This position was subsequently taken by the Court of Appeal in the case
of Daudi Pete v. The United Republic of Tanzania. The Court of Appeal stated that
until Parliament legislates under para Art30 (4) the enforcement of the basic rights
and duties may be effected under the procedure and practice that is available in the
High Court in the exercise of its original jurisdiction.
After the enactment of the Basic Rights and Duties Enforcement Act 1994, the
judiciary in Tanzania have maintained the bold spirit and continued to actively
protect human rights in various areas including, the roght to access to justice, right to
participate in political affairs (Rev. Christopher Mtikila v. Attorney General, High
Court of Tanzania at Dar es Salaam, and Miscellaneous Civil Cause No. 10 of 2005).
In Kukutia Ole Pumpun and Another v Attorney Generaland Another [1993] TLR
159. The appellants sought to sue the Government. They applied for the Minister's
consent to sue the Government as required by s 6 of the Government Proceedings
Act 1967 but got no reply. They then called upon the High Court to rule on the
constitutionality of that provision of the law; it was null and void as it contravened
the Constitution of the United Republic of Tanzania. The respondents did not wish to
file a written statement of defence to the claim; instead they lodged with the Court a
preliminary objection that the suit was incompetent for want of the Minister's consent
to sue the Government. The learned Trial Judge ruled that section 6 of the
Government Proceedings Act 1967 was not unconstitutional and dismissed the suit as
incompetent. On Appeal the Court of Appeal held that Section 6 of the Government
Proceedings Act 1967 violates the basic human right guaranteed under arts 13(3) and
30(3) of the country's Constitution, of unimpeded access to the Court to have one's
grievances heard and determined there. The court further stated that in considering
any act which restricts fundamental rights of the individual, such as the right to free
access to the Court of law, the Court has to take into account and strike a balance
between the interests of the individual and those of the society of which the
individual is part. A law which seeks to limit or derogate from the basic right of the

60
individual on grounds of public interest will not be declared unconstitutional if it
satisfies two requirements: that it is not arbitrary and that the limitation imposed by
such law is not more than is reasonably necessary to achieve the legitimate objective.
Section 6 of the Government Proceedings Act, 1967, as amended by section 6 of Act
No. 40 of 1974 is unconstitutional because it violates the basic human right,
guaranteed under Arts 13(3) and 30(3) of the country's Constitution, of unimpeded
access to the Court to have one's grievances heard and determined there.
Another important decision is the case Legal and Human Rights Centre v. Thomas
Ole Sabaya and 4 Others, Court of Appeal of Tanzania at Dar Es Salaam, Civil
Appeal No. 88 of 2006. In this case the Court of Appeal of Tanzania disposed of a
case concerning the eviction of about 135 villagers from their land at Nyamuma
village in Serengeti District. Following the investigation bythe Commission for
Human Rights and Good Governance (CHRGG) it was concluded that the
government had violated the rights of the complainants and that the latter must be
resettled at their native land. It was further recommended that the Government pay
them more than Tshs. 800 millions of compensation. The complainant took the
recommendation to the Government for enforcement but the Government, through its
Attorney General responded to the Chairman of the Commission that the
Government had conducted its own investigation and found out that there was no
human rights violation committed at Nyamuma Village. The Commission, pursuant
to Section 28 (3) of the Tanzania Commission for Human Rights and Good
Governance Act recommended the claimants to bring an action before the High
Court for resettlement and compensation. The High Court held that it lacked
jurisdiction to enforce the recommendations made by the Commission. The
complainants appealed to the Court of Appeal. The Court of Appeal ruled that the
High Court erred in not considering the matter on the merit and ordered that the
matter be referred back to the High Court before another judge for consideration on
the merit. Implicitly, the Court of Appeal acknowledged that once the Commission
has investigated and made a decision, this should be enforced by the Government.
Otherwise, the complainant has the right to go to the High Court to seek enforcement
of that decision.

61
Besides the protection of constitutional rights, as seen in chapter four, the Judiciary
has also made a remarkable role in protection of individual rights to liberty, proverty
and employment through prerogative remedies. Many cases have been discussed in
chapter four but this does not preempt the researcher from discussing some more
cases for clarity purpose under this section.
In Said Juma Muslim v Attorney-General (Supra) the court held that the common law
principle that a civil servant was dismissible at pleasure of the President was not part
of the law of Tanzania. The same was the case James F Gwagilo v Attorney
General(Supra) in which the Court held that the prerogative power of the Crown to
dismiss a civil servant at will ended, and did not devolve to the President, when
Tanganyika became a Republic in 1962; instead the President could only remove a
civil servant in the public interest under s 20(3) of the Civil Service Act 1962, Cap
509, now replaced by the Civil Service Act 1989 (Act No 16 of 1989). The court
further held that statutory clauses ousting the jurisdiction of the courts are ineffective
to exclude the power of the High Court to exercise its supervisory role of judicial
review conferred on it by article 108(2) of the Constitution.
In Winfred Ngonyani v. Attorney General (1982) TLR.272 the applicant applied for
for the release of a detainee detained under the Deportation Ordinance. Both the
Detention Order and the Deportation Order did not state the place where the detainee
is to be deported to. The court in granting the application held that the omission to
specify the place to where the subject of the Order and the Warrant is to be sent,
cannot be said to be a mere technicality, but is a material irregularity.

Also in Jama Yusuph v. Minister for Home Affairs (1990) TLR. 80 In an application
for the order of certiorari the trial judge found that the respondent had acted ultra
vires his powers and quashed the respondent’s order to deport the applicant. In
granting the application the court stated that if an administrative authority is acting
within its jurisdiction or intra vires, and no appeal from it is provided by statute, then
it is immune from control by a court of law. But if it exceeds its power, or abuses
them so as to exceed them, a court of law can quash its decision and declare it to be
legally in invalid.

62
Therefore, having regard to the above few discussed cases, it is worthwise to sum up
under this section that the role of the judiciary in protection of individual rights
against arbitrary or unlawful administrative action is very crucial and needs no over
emphasis.

5.4 Relevance of Judicial Review in protecting individual rights

It has been stated in chapter two that the theme of relevancy of judical review
remedies in protection of individual rights against arbitrary administrative action is
examined by looking at the awareness of the people on judicial raview remedies,
accessibility of the courts interms of cost, geographical location of the courts,
affordability of procedures (free from technicalities), enforcement of remedies, and
curing the injuries suffered.

In course of this study it was found that majority of the citizens are unaware of the
importance of judicial review in protection of their rights against arbitrary
administrative action. Even where they are are aware, they are not aware of the
procedures for applying for judicial review since the said procedures are too
technical. In response to the question whether citizens of citizens are aware of the
procedures to seeck remedy through judicial review, out of the 20 respondents who
responded to this question, fifteen (75%) said no, five (25%) said yes. In
elaborating the said response as the researcher probed for detailed information, most
of them said the procedures are very technical and therefore they are not userfriend
to majority of Tanzanians save lawyers only.

As to whether the cost of seeking judicial remedies are affordable, majority of the
respondents said no. In response to said question, aout of thenty five (25)
respondents who responded to the this question all (100%) said that the costs to seck
judical review is not affordable to majority. Since the procedures are too technical,
only those who can hire advocates of who can aford legal assistance from human
rights activists and NGOs like the LHRC, can access the court for redress. In Pc
Julius Mkomwa v Inspector General and Attorney General,(Supra) the Applicant's
application for leave to file an application for the orders of certiorari and mandamus

63
to quash the decision of his dismissal from the Police Force where he had been
engaged as a Police Constable and to compel the Inspector General of Police to
reinstate him to his employment was struck out on the ground that it was filed out of
the six months period. The applicant delayed to make the application because of his
ignorance of the procedures. Instead of making the application to the judiciary he
ignorantly made appleal to the president, a thing that made him out of time to apply
for the prerogative remedies. Unthympathetic as it had been the judiciary ruled that
ignorance of law is not an excuse.

The above discussed responses are in line with the decision of Rev. Christopher
Mtikila V AG (supra) in which Lugakingira J., emphasised the point as he observed
that majority of the Tanzanians are ignorant and poor. In emphasing this point and
the need to have Public intrest litigations the learned justice had this to say;

“The relevance of public interest litigation in Tanzania cannot be

over-emphasized. Having regard to our socio-economic conditions,
this development promises more hope to our people than any other
strategy currently in place. First of all, illiteracy is still rampant.
... By reason of this illiteracy a greater part of the population is
unaware of their rights, let alone how the same can be realised.
Secondly, Tanzanians are massively poor. ... By reason of limited
resources the vast majority of our people cannot afford to engage
lawyers even where they were aware of the infringement of their rights
an the perversion of the Constitution. Other factors could be listed
but perhaps the most painful of all is that over the years since
independence Tanzanians have developed a culture of apathy
and silence. This, in large measure, is a product of institutionalized
mono-party politics which in its repressive dimension, like detention
without trial, supped up initiative and guts”.

On accessibility to the courts for judical review, besides the lack of awareness, costs
and technicalities of procedures, it was further found that the courts are

64
geographically not easily accessible geographically. The reasons aduced by the
respondents through indepth interview were that the High court which is vested with
the original jurisdiction in judicial review are not found in every region, furthermore
some of the administrative malpractices accure in the villages which are remote.

The researcher was also interested to discover whether the judicial review remedies
are easily enforceable and curative. Out of the twenty five (25) respondends, twenty
(20) respondents which is 80% said the enforceability of the said remedies is very
cumbersome and difficulty; five(5) respondents which is only 20% said the remedies
are enforceable. The message from from thses findings is that the remedies are
difficulty to enforce since enforcement of the said remedies depends on the will of
the executive. Where it chooses to disregard the judical order, the remedy remains as
declarative rather than curing the suffered injuries.

In view of the above findings and discussion, it is obvious that, although the
judiciary has a greater and important role to play in protection of individual rights
against arbitrary administrative action through judicial review, its relevance, is still
very minimal to the majority of the citizens.

5.5 Perception of the citizens on the role of judicial

The researcher was also interested to determine the view of the people or their
perception on whether judicial review is relevant or is of any value to the people in
protecting their rights against arbitrary administrative action. The responses were
varied so greatly. Lawyers and judicial oficers were of the view that judicial review
is very important weapon in the hands of the judiciary to curbe administrative
malpractices. This is in line with the decision of Julius Ishengoma Francis
Ndyanabo V.AG (supra). However, the ordinary citizens view were that the judiciary
has nothing to do with the protection of individual rights particularly the poor. They
were of the view that the judicial review is affordable to those who are rich and can
bribe the judiary. They were of the view that the judiciary is the most corrupt
institution; hence can not afford protection of individuals who are poor. These
findings are in line with the Tanzania Human Rights Reports that corruption practice

65
is one of the factors undermining the public confidence in the delivery of public
services. Moreover, when this practice involves the judicial works, the possibility of
reaching unfair and unjust decisions becomes quite obvious. Corruption in the
judiciary also prevents access to justice, as the judicial system does not operate to
protect individual’s rights, as these rights are set out in the laws (LHRC 2009:39).

5.6 Problems and challenges of Judicial review in protection of individual

rights
In course of interviews and documentary review, a number of probles were noted as
being hinderances to effectiveness of judical review in protection of individual rights
against arbitrary administrative action. Amonng the problems noted are:
i) Lack of awareness to the majority of citizens on the way to challenge
admnistrative action through judicial review;
ii) High costs of instituting proceedings against the government due to the fact that
majority are poor; hence unable to hire advocates;
iii) Cambersome procedures or technicalities of judicial review which makes
ordinary persons unable to access the courts for redress;
iv) The High Court being the only institution with jurisdiction to hear judial review
applications; hence limiting the access to justice for individuals in remote areas;
v) Corruption on party of the judiciary which defeats the peoples confidence on the
judiciary as an important institution of protecting individual rights; and
vi) Lack of reliable enforcement mechanism of the judicial review remedies.

5.7 Conclusion
This chapter has made an attempt to present and discuss the findings on the relevance
of judicial review remedies in protection of individual rights against arbitrary
administrative action. In particular it has been observed in thisn chapter that judicial
judicuial review has an important role in protection of individual rights against
arbitrary administrative action. However dispite the noble role so far played by the
courts in tanzania, relevance of Judicial Review is still not very much aknowledged
by the people due to various problems that hinder peoples accessibility to the court as
discussed therein above.

66
 CHAPTER SIX
CONCLUSION AND RECOMMENDATIONS

6.1 Introduction
The previous chapters every chapter has carried its own conclusion depending of the
content of the particular chapter. This chapter therefore, gives the general conclusion
of the study basing on the entire objectives of the studyand findings. Tha chapter
also gives the recomendations on how to make Judial review aneffective and relevant
means of protecting individual rights against arbitrary administrative action.

6.2 Conclusion
This study was conducted with the main objective of examining the relevancy of
judicial review in protecting the citizen’s rights against arbitrary Administrative
action. Several specific objectives were made to meet the main objectives namely,
determining the role of judicial review in protection of individual rights against
arbitrary administrative action; determine the awareness of the people on the role and
procedures of judicial review in protection of individual rights; the effectiveness of
judicial review remedies against arbitrary administrative action; examining the
perception of the people on the relevancy of judicial review in protecting their
fundamental rights; and determine the required improvements on judicial review in
protecting the individuals rights against arbitrary administrative action.

In line with the objectives of the study several question were developed to assist the
researcher meet his abjectives, namely; what is the role of judicial review in
controling arbitrary adminstrative action? To what extent is judicial review relevant
in protecting individual rights against arbitrary adminstrative action? Are the judicial
reveiew remedies sufficient in redressing the individuals affected by arbitrary
administrative action? What is the perception of the citizens on the role of judicial
review in protection of their rights; and What improvements (if any) are required to
make judicial review relevent in protection of individual rights against arbitrary
administrative action?

67
The study was mainly a library research; hence, findings were obtained through
documentary review, in particular therough analysis of cases. However, for the
purpose of verification of documentary information, field study was conducted
through indepth interview and questionnaire survey.

The research revealed that judicial review has so far played a remarkable role in
protection of individual rights against arbitrary adminitrative action. However, its
relevance is yet to be realized by the majority due to luck of awareness to the
majority of citizens on the way to challenge admnistrative action through judicial
review; high costs of instituting proceedings against the government due to the fact
that majority are poor; hence unable to hire advocates; cumbersome procedures or
technicalities of judicial review which makes ordinary persons unable to access the
courts for redress; the High Court being the only institution with jurisdiction to hear
judial review applications; hence limiting the access to justice for individuals in
remote areas; corruption on party of the judiciary which defeats the peoples
confidence on the judiciary as an important institution of protecting individual rights;
and luck of reliable enforcement mechanism of the judicial review remedies. These
short comings and challenges makes the people to take a negative perception on the
judiciary as an institution that can effectively protect their rights against arbitrary
administrative action through judicial review.

6.3 Recommendations
In order to make judicial review relevant and an effective way of protecting
individual rights against arbitrary administrative action the researcher recommends
that:
i) More awareness should be created to the majority of citizens on the way to
challenge admnistrative action through judicial review by human rights activist
and non governmental organizations so that the people can be able to apply for
judicial rveiew on themselves instead of heavily reling on advocates.

ii) The doctrine of private interest litigation should be given more prominance so
that the few individuals who have knowlegde and means of instituting

68
 proceedings in the court for prptection og human rights should so do in order to
protect the interest of those who have no knowlegde and means doing so.

iii) The costs of instituting judical review proceedings against the government
should be reasonable and affordable by majority, in particular the poor. Like the
case for capital offences, those individuals who are agreived by government
action and wish to apply for judicial review, should be afforded free legal
assistance so that the poor can also have access to justice through judicial review.

iv) Cumbersome procedures or technicalities in judicial review should be reluxed so

that ordinary persons can be able to access the courts for redress. Where
possible, the procedures used in ADR should be adopted in judicial review
proceedings and instead of strictly adhering to procedural technicalities, the
judiciary should focus much on the merits of the applications.

v) Instead of only the High Court being the only institution with jurisdiction to hear
judicial review applications, such jurisdiction should be extended to RMs and
District magistrate courts so as to increase accessibilty of the courts for judicial
review.

vi) Corruption on party of the judiciary which defeats the peoples confidence on the
judiciary as an important institution of protecting individual rights should be
strictly checked by strict application of the public and judicial service codes of
practice for corrupt judicial personnel.

vii) The government should device and effective and reliable enforcement
mechanism of the judicial review remedies.

6.4 Area for further research

More research is needed on how to make the procedures for application and
enforcement of judicial review remedies affordable to the majority of citizens in
Tanzania.

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Bisimba, H.& and Maina, C.(2005) Justice and Rule of Law in Tanzania: Selected
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Charles H. K (1984) Confining Judicial Authority over AdministrativAction,Missouri

Law Review, Vol.49.

Chipeta B.D, (2009) Administrative Law in Tanzania, A digest of cases, Mkuki na

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Chris Maina Peter(1997) Human Rights in Tanzania: Selected Cases and Materials,
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Tanzania, Criminal Procedure Act, Cap. 20 R:E, 2002.

Tanzania, The Constitution of the United Republic of Tanzania (1997).

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Lavrakas, P.J. Encyclopedia of Survey Research Methods, at
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LHRC(2009) Tanzania Human Rights Report, Legal and Human Rights Centre.

Masabo, J. (2012) The Protection of the Rights of Migrant Workers in Tanzania,

University of Cape Town.

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Rights: An Analytical Overview, Rajshahi University, Bangladesh.

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 APPENDIX
Questionnaires for Judges, State Attorneys, and the Private Advocates

Dear respondents,

The purpose of these questionnaires is to collect information regarding Relevancy of

judicial review in protecting citizen’s rights against arbitrary administrative
action. This is an academic study which is undertaken as a partial fulfillment of
requirement of award of Master of Public Administration. The information obtained
will be treated as confidential and primarily used for the purpose intended. Please fill
all the blacks in this questionnaire.

Personal records
i) Date of Appointment to the post………………………………..
ii) Marital Status…………….Male Female
iii) Level of Education. Put (√ ) to the correct answer in the boxes below
 Primary Education
 Secondary Certificate
 Certificate
 Diploma
 Undergraduate
 Postgraduate
 Non

General Information
1. What is the role of judicial review in controling arbitrary adminstrative action?
.........................................................................................................................................
.........................................................................................................................................

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2. To what extent is judicial review relevant in protecting individual rights against
arbitrary adminstrative
action?.............................................................................................................................
.........................................................................................................................................
3. Are the judicial reveiew remedies sufficient in redressing the individuals affected
by arbitrary administrative action?................................................................................
........................................................................................................................................
4. What is the perception of the citizens on the role of judicial review in protection of
their rights.......................................................................................................................
........................................................................................................................................
5. What improvements (if any) are required to make judicial review relevent in
protection of individual rights against arbitrary adminstrative action?.........................
........................................................................................................................................
........................................................................................................................................

Thank you for corporation and participation.

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