NAME: SIA I. MASAGA.

REG. NO: 11301255/T.19

INTRODUCTION
The doctrine of separation of powers, as one of the basic constitutional principles, was initially
advocated by a French Philosopher called Montesquieu. Briefly, the doctrine means that the
three branches of government, namely, the Executive, the Legislature, and the Judiciary must be
separated. In the strict interpretation, each organ should perform a separate function distinct from
the other; none should interfere with the functions of any of the others. And no one should be a
member of more than one organ. This means that if you’re a member of the legislature you
should not be member of the executive or Judiciary and vice versa. As also be provided under
Article 4 (1) and (2)1 The principle of separation of power states that in every state there are three
sorts of powers, the Legislative (making laws), Executive (or administrative) carry out the law
and Judiciary for the interpretation and application of law, the principle refer that the three
functions should kept distinct in the hand of separate institutions and be exercised by separate
persons.2

The doctrine of judicial independence requires a judiciary to be free from any pressure which
may result in making it to act in a particular in particular way in execution of its
function.3Independence of the Judiciary means that Judges and Magistrate are secure in their
position to dispense justice un-interrupted or without interference and cannot be dismissed or
intimidated from taking position against the executive or for making decisions that might have an
adverse impact on executive. In 1995, the Conference of New Delhi defined Independence of
Judiciary as “An indispensable requisite of a free society under the rule of law. Such
independence implies freedom from interference by the executives or the legislature with the
exercise of the judicial function”.
Describing the independence of judiciary, the retired Judge Chipeta in the case of R v. Idd
Mtegule4 started the following; “The judiciary is supposed to be an independent institution in the
sense that those who are entrusted by the Constitution to decide the rights and liabilities or the
guilty or the innocent of people must be free from all kinds of pressures regardless of the corners
1
The Constitution of United Republic of Tanzania of 1977 as amended time to time.
2
Mushi. E.G. (2014) Administrative Law of Tanzania, Mzumbe University, Mzumbe, Tanzania.
3
Ibid
4
[1979] TLR
from which those pressures come. The judiciary must be free from political, executive or
emotional pressure if it’s going to work with the smoothness and integrity expected of it under
the supreme law of the land (the Constitution). It must not be subjected or succumb to
intimidation of any kind.”

Whether or not adherence to Separation of Powers resides in Independence of Judiciary?

The independence of the judiciary is inherently connected with the principle of separation of
powers. The principle of separation of powers, which is the cornerstone of the rule of law, is
reaffirmed in a number of international instruments, particularly with regard to the judiciary. To
these ends, states must guarantee respect for judicial independence by enshrining the principle of
judicial independence in the Constitution or the written laws of the country. Judges must be
independent and impartial. To be independent, judges must be free to decide cases “without any
restrictions, improper influences, inducements, pressures, threats or interferences, direct or
indirect, from any quarter or for any reason.5

The judiciary is formed by the various courts of judicature and is independent of the government.
Tanzania adheres to and respects the constitutional principles of separation of powers. The
Constitutional makes provision for the establishment of an independent judiciary, and the respect
for the principles of the rule of law, human rights and good governance. This is provided under
article two articles in the Tanzania’s constitution support this freedom of the Judiciary. Article
107 A (1)6 states that “the organ vested with the dispensation of justice in the United Republic is
the Judiciary and Judiciary of Zanzibar, and therefore, no other organ of the government or the
Legislature or the House of Representative will have last say in matters related to dispensation of
justice. Article 107 B7 states that, “in the execution of the judicial duties, all courts will be
independent and will be responsible only to the articles of the constitution and laws of the land.”

Beyond affirming independence of the judiciary as a concept and principle enshrined in law,
States must also have in place safeguards and guarantees aimed at securing the independence of
judges in actual practice. The principle of separation of powers is the cornerstone of an
independent and impartial justice system.

5
Human Right Committee, General Comments No. 32 Article 14
6
The Constitution of United Republic of Tanzania of 1977 as amended time to time.
7
Ibid
Although Tanzania is, adhere to the principle of separation of power that each state organ is
vested with its power and makes its own decision without interference by any state organ.
Judiciary of Tanzania is vested with power of dispense justice in the country and to make sure
that litigation comes to end. Something to note here is that judiciary is not free in making its own
decision since there is interference of powers between the states organs especially the Executive
as it shown in the case of Ally Juu ya watu vs. Loserian Mollel and others. 8 (Before
Mwaisumo,J) this case was about land dispute between the plaintiff and a mining co-operative
society. While the case was going on in high court of Arusha, the defendant took the case to
Regional Commissioner. The Regional commissioner called the state attorney in charge for the
northern zone, and ordered him to use his office to withdraw the file from the court so that the
matter could be determined by the Regional security committee. The State attorney in charged
replied to the regional commissioner that his office had no power to remove the said case file
from high court. Few days later the matter reached the then chief justice who wrote the high
court at Arusha summoning the said file on a purported reason that the file was needed by the
president’s office and that its demand was an order from the president himself. And upon the
demand, a court messenger was sent from Dar es Salaam to Arusha and collects the said file. She
found the file and took it to Dar es Salaam, but shortly afterwards the file was returned to Arusha
undisturbed and was addressed to Mwaisumo in his own capacity and not to the high court of
Arusha. Upon its arrival, Mwaisumo J. refused to carry on with the case for one reason that he
was grossly interfered with the Executives.

Another case is the case of Hamis Masisi and 6 others vs. Republic9. In this case the resident
Magistrate succumbed to the pressure from the Regional Commissioner and had to cancel bail
order he had granted to accused person just because Mr. Joseph Stephen Wasira, the then Mara
Region Commissioner and Region Party Secretary wanted the accused person to remain in
custody. When the matter was forwarded the record to the High Court; Mfalila, J acknowledge
the fact that the concept of the independence of judiciary by held it is clear that the Regional
Commissioner in move which was not only wholly unjustified but illegal decided to detain the
applicants merely because they had been admitted to bail contrary to his personal views on the
matter, if it has been decided to take the applicants to a Court of law then only the rule applicable

8
(1979) L.R.T .6.
9
[1985] T.L.R.24
in administration of justice became applicable and in their application the court concerned should
not be under any influence or pressure from any quarter, in other words the entire judicial
machinery, the prosecution, the defence, the court subject of the proceedings should be free from
harassment however well intentioned.10

Also in the case between the Republics vs. Idd Mtengule.11 In this case Idd Mtengule (accused)
was with the offense of disobeying a lawfully order contrary to section 124 of the Penal Code
Cap 16 for what was alleged that he offered for sale buns (maandazi) in disobedience of an order
issued by the Mpwapwa area Commissioner, banning the sale and consumption of edible in bid
to prevent the spread of cholera. The order contained at list of all prohibited articles,
unfortunately without including Maandazi.

Throughout the court decision, the Area commissioner became furious and he then wrote to the
trial Magistrate accusing him of being biased and hindering the effort of the authorities to stop
the spread of the disease requiring him to furnish reasons for the release of the accused and
threatened to take stern action against him. This demonstrate existence of leaders feeling having
power over other body‘s among the three bodies.

All these cases shows the presence of other organs most cases executive interfering with the
ruling of the Judiciary causing failure in the effective performance of the Judiciary to fulfill its
functions as stipulated in the doctrine of separation of power and the constitution in general.

REFERENCE

The Constitution of United Republic of Tanzania of 1977 as amended time to time.

10
Chipeta. B.D (2009) Administrative law in Tanzania, Mkuki na Nyoka publisher, Dar es salaam Tanzania.
11
[1979] TLR
Human Right Committee, General Comments No. 32

CASES

R v. Idd Mtegule [1979] TLR

Hamis Masisi and 6 others vs. Republic [1985] T.L.R.24

Ally Juu ya watu vs. Loserian Mollel and others. (1979) L.R.T .6.

BOOKS

Chipeta. B.D (2009) Administrative law in Tanzania, Mkuki na Nyoka publisher, Dar es salaam
Tanzania.

Mushi. E.G. (2014) Administrative Law of Tanzania, Mzumbe University, Mzumbe, Tanzania.