Administrative Law-SUMMARY NOTES 2

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Prosper P. Tegamaisho, LL.B (Hons), LL.M (SAUT), LL.M (Turin, Italy)
TANZANIA INSTITUTE OF
ACCOUNTANCY
ADMINISTRATIVE LAW
BHRM I
PROSPER P. TEGAMAISHO
LL.B (Hons)-SAUT, LL.M (SAUT), LL.M (Turin, Italy)

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TOPIC ONE
INTRODUCTION TO ADMINISTRATIVE LAW
DEFINITION OF ADMINISTRATIVE LAW

 C. K. TAKWANI defined Administrative law as the branch of constitutional law
which deals with powers and duties of administrative authorities, the procedure
followed by them in exercising the powers and discharging the duties and the
remedies available to an aggrieved person when his rights are affected by any
action of such authorities.
SCOPE OF ADMINISTRATIVE LAW
 It covers the nature of structure, powers and functions of all these administrative
organs.
 It also makes available all the relevant remedies to the persons whose rights are
infringed by the operations of these organs during the course of Administration.
 Why and How the Administrative Organs are to be controlled is also viewed by
the Administrative law.
REASONS FOR GROWTH OF ADMINISTRATIVE LAW
 Inadequacy of the Legislations-administrative law provides room for executive

to make law (delegated legislation)
 Shortage of Courts- courts were overburdened with cases, hence, need for
establishment of administrative tribunal under executive.
 Technical Experts are with Administrative Organs
 Pressure upon parliamentary time
 Flexibility
 In emergence cases
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HISTORICAL GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW
England
 Introduced in 20th century

 Administrative law in England was observed in two cases namely, Board of
Education v. Rice and Local Government Board v. Arlidge. In these two cases it was
observed that legislation had conferred a considerable amount of quasi-judicial
authority on the administration which was considerable step towards the
introduction of administrative law in England.
 Various committees were formed for the purpose of finding out how
administrative law may e formalized in Enland, these committees were:
 In 1929, the Committee on Minister's Powers headed by Lord Donoughmore was
appointed by the British Government to examine the problems of delegated
legislation and the judicial and quasi-judicial powers exercised by the officers
appointed by the ministers and to suggest effective steps and suitable safeguards
to ensure the supremacy of the rule of law.
 In 1932, the Donoughmore Committee submitted its report and made certain
recommendations with regard to better publication and control of subordinate
legislation
 Subsequently, Statutory Instruments Act, 1946. In 1947, the Crown Proceedings
Act were passed by the British Parliament.
U.S.A
 Existed in 18th century

 Various committees were formed for the purpose of finding out how
administrative law may e formalized in USA, these committees were:
 A special committee was appointed in 1933 which called for greater judicial
control over administrative agencies.
 Roscoe Pound Committee of 1938
 Attorney General's Committee in 1939,
 As a result of Committees’ reports, Administrative Procedure Act, 1946 was
passed which contained many provisions relating to the judicial control over
administrative actions.
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France
 French administrative law or droit administratif is a branch of law which deals

with the powers and duties of various administrative agencies and officials.
 According to Dicey droit administratif is that portion of French law which
determines (1) position and liabilities of State officials; (ii) rights and liabilities of
private individuals in their dealings with officials as representatives of the State;
and (iii) procedure by which these rights and duties are enforced. According to
him, this system is based on two principles, namely, (1) an individual in his
dealings with the State does not, according to the French legal system, stand on
the same footing as that on which he stands in dealing with his neighbour; and
(2) the Government and its officials are independent of and free from the
jurisdiction of the ordinary civil courts.
CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW
 The constitutional law deals with the general principles relating to the
organisation and powers of the legislature, executive and judiciary and their
relation with each other towards the citizens.
 Administrative law is concerned with that part of the constitutional law which
deals in detail with the powers and functions of administrative authorities
including civil services, public departments, local authorities and other statutory
bodies.
Relationship between administrative law and constitutional law
 Both are branches of public law

 Constitutional law formulates fundamental rights while administrative law
provides principles, rules and procedures and remedies to protect and safeguard
fundamental rights.
 Constitutional law lays down principles while administrative law aimplements
and gives life to these principles.
 Administrative law is also instrumental in enhancing the development of
constitutional values such as rule of law and democracy while administrative
law provides for rules, procedures and principles by making public officials,
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comply with the limit of the power as provided in law, and checking the validity
and legality of their actions.
TOPIC TWO
CONSTITUTIONAL PRINCIPLES
2.1 MEANING OF CONSTITUTION

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 It is the supreme law or fundamental law of the land. Article 64 (5) of the
CURT, 1977
 It is the contract between the rulers and the rulers.
CONSTITUTIONAL PRINCIPLES
1. RULE OF LAW
o In Modern times, rule of law was propounded by Albert Dicey

 He gave following three postulates of rule of law:
i. Everyone is equal before the law. (equality before the law)
ii. Sanctions have to be backed by law. (supremacy of the law)
iii. Courts are the ultimate body and supremacy of court is
ambivalent in civilized society (predominance of legal spirit).
Meaning of Rule of Law

 Means that all people and institutions are subject to and accountable to law that
is fairly applied and enforced
RULE OF LAW UNDER CONSTITUTION OF TANZANIA
 The rule of law is adopted/enshrined in the Constitution of the United Republic

of Tanzania under article 13.
 Article 13 (1) provides that “All persons are equal before the law and are entitled,
without any discrimination, to protection and equality before the law.”
 Article 13 (3) provides that “The civic rights, duties and interests of every person and
community shall be protected and determined by the courts of law….”
2. SEPARATION OF POWER
 Propounded by by Montesquieu

Meaning of separation of power

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 refers to the division of government responsibilities into distinct

branches to limit any one branch from exercising the core functions of
another
MONTESQUIEU’S STRICT DOCTRINE (TRIPARTITE SYSTEM)

 In every government there are three sorts of power i.e. legislature, executive and
judiciary. The executive, makes peace or war, send or receives embassies, establishes
the public security and provides against invasions. The legislature, prince and
magistrate enact temporary or perpetual laws and amend or abrogate those that
have been already enacted. The judiciary, punishes criminals, or determines the
disputes that arise between individuals.
It is generally accepted that there are three main categories of governmental

functions –
i) the Legislative powers
ii) the Executive powers
iii) the Judicial powers
It is also generally accepted that there are three main organs of the Government in a
State –
i) the Legislature,
ii) the Executive, and
iii) The Judiciary.
 According to the theory of separation of powers, these three powers and functions
and functions of the Government must, in a free democracy, always be kept
separate and be exercised by separate organs of the Government.
 According to Wade and Phillips, separation of powers may mean three different
things:
i) that the same persons should not form part of more than one of the three
organs of Government, e.g. the Ministers should not sit in Parliament;
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ii) that one organ of the Government should not control or interfere with the
exercise of its function by another organ, e.g. the Judiciary should be
independent of the Executive or that Ministers should not be responsible to
Parliament; and
iii) that one organ of the Government should not exercise the functions of
another, e.g. the Ministers should not have legislative powers.
SEPARATION OF POWERS IN PRACTICE
U.S.A.
 Separation of power has been accepted and adopted strictly in USA
 There the legislative powers are vested in the Congress. The executive powers in
the President and the judicial powers in the Supreme Court and the courts
subordinate thereto.
However, there are still interferences

 Despite this achievement, there is still no clear separation of powers in USA.
 President may exercise legislative function
 Congress has judicial power of impeachment
 Congress can delegate its legislative power to executive
England
 There are three organs of the government, namely, executive vested with
executive powers, legislature vested with legislative powers and judiciary vested
with judicial powers
However, there are still interferences
 Though the three powers are vested in three organs and each has its own
peculiar features, but still there are interferences
 For example, head of judiciary i.e Lord Chancellor is also a member of executive,
also, legislative can delegate its legislative powers to executive etc.
APPLICATION OF THE DOCTRINE OF SEPARATION OF POWERS IN THE

UNITED REPUBLIC OF TANZANIA
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 Separation of power in Tanzania is found under article 4 (1) of the Constitution

of the United Republic of Tanzania, 1977
Article 4 Reads:
All state authority in the United Republic shall be exercised

and controlled by two organs vested with executive powers, two
organs vested with judicial powers and two organs vested with
legislative and supervisory powers over the conduct of public
affairs.
 Though the three powers are vested in three organs and each has its own
peculiar features, but still there are interferences

INTERFERENCES OF SEPARATION OF POWERS IN TANZANIA

 President can appoint judges
 President is allowed to appoint certain number of members of the
National Assembly
 Executive have quasi-judicial powers eg. Administrative tribunal
 The Chief Justice is allowed to make rules,
 Members of the executive such as President, Ministers, Directors and etc.,
are allowed to make subsidiary legislation
 Ministers (Cabinet members) are also part of the National assembly [see,
Article 55(4)].
3. PARLIAMENTARY SUPREMACY/PARLIAMENTARY SOVEREIGNTY
Meaning of parliamentary supremacy
 It means the parliament is the supreme law-making body. It means, it is

the only body vested with power to make, repeal or amend any law.
 According to Dicey's view of parliamentary sovereignty consisted of four
factors:
 The Parliament can make laws concerning anything.
 No Parliament can bind a future Parliament
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 A valid Act of Parliament cannot be questioned by the court.

 In Tanzania, article 64 (1) provides for parliamentary supremacy
4. INDEPENDENCY OF JUDICIARY
Meaning:
 Independence of judiciary means that the judiciary should be independent from

the other branches of government.
 Article 107B of the Constitution of the United Republic of Tanzania, 1977
provides for independence of Judiciary.
FACTORS TO STRENGTHEN INDEPENDENCE OF JUDICIARY
 Security of tenure of the Judicial Officers-judges can not directly be removed

from office by the President unless a judicial tribunal so decide. Article 110.-
(1)provides that every Judge of the High Court shall vacate his office on office of
attaining the age of sixty years (60) and justices of appeal retire at the age of 65 years
(article 120)
 Judicial Immunity -Judge or a Magistrate cannot be sued for any act or word
spoken when discharging judicial activities.
 Separation of Judicial powers and personnel-judges and magistrate are not
allowed to be members of political party. Article 113A
 Security of emolument and remuneration-no reduction of judge’s salary,
remuneration of judges cannot be discussed in parliament
FACTORS UNDERMINING JUDICIAL INDEPENDENCE
 Corruption
 Harassment of judicial personnel
 Biasness of decisions
 Presence of incompetent judicial personnel
 Public pressure
 Illiteracy
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5. MINISTERIAL RESPONSIBILITY
Meaning of ministerial responsibility

 Ministerial responsibility means accountability or answerable of the ministers for
any business of the ministry or cabinet.
Types of ministerial responsibility
a) Individual ministerial responsibility- means a minister is responsible or

accountability for poor performance of his/her ministry.
Grounds/reasons for Individual ministerial responsibility are:

 Maladministration of the ministry,
 Glossily misconduct,
 Allegations of corruptions,
 Abuse and improper use of public power/authority.
b) Collective ministerial responsibility- This is the responsibility or accountability

of all cabinet or ministers of the government together.
Grounds/reasons for Individual ministerial responsibility are:
 Misleading the parliament by the cabinet.

 Leakage of confidential cabinet documents
 Disclosure of government budget prematurely by irrelevant authority.
EXCEPTIONS TO THE DOCTRINE OF MINISTERIAL RESPONSIBILITY

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 Doctrine of ministerial responsibility can not apply if:

o If the misconduct of the civil servant was conducted through delegated
authority.
o If the civil servant in the ministry has done some act which the minister
had already prohibited
o Where civil servants commits crime
CONSEQUENCES OF MINISTERIAL RESPONSIBILITY
 Resignation of the minister.

 Reduction from the salaries of the minister by nominal sum.
 Dismissal of the minister by the appointing authority.
 Passing the vote of no confidence against the cabinet.
MINISTERIAL RESPONSIBILITY IN TANZANIA
 Collective ministerial responsibility – provided under article 53 (1) (2) of the

CURT
 Individual ministerial responsibility - provided under article 57 (2) of the
CURT
MECHANISMS TO ENFORCE MINISTERIAL RESPONSIBILITY IN TANZANIA
 Tabling private motion in the parliamentary session questioning on performance of any

ministry
 Formation of Permanent Parliamentary Committees
 Formation of Parliamentary Selected Committees.
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HISTORY OF CONSTITUTIONAL MAKING IN TANZANIA
a) Independence Constitution, 1961
 Based on west minister model

 It has no bill of rights (human rights)
 Ministers were collectively and individually accountable to the parliament
b) Republican Constitution 1962

 It marked the beginning of presidential system
 President was head of State and head of government, commander in Chief of the
army
 President was part of the parliament
 He appointed ministers and the Vice President, and chaired cabinet.
 Ministers were accountable to the President
 Parliament could not impeach the President, however, President could dissolve
the parliament
c) The Interim Constitution of 1965

 It formalized the one party state and re-enacted all changes brought about by the
Union.
 The Constitution of TANU was made a schedule to the Constitution thus legally
endorsing the emergence of a party state.
 The 1965 Constitution was enacted by an ordinary Act of parliament
d) Permanent Constitution 1977
 The President of the United Republic of Tanzania appointed a 20-person joint

party committee headed by Thabit Kombo to propose a new constitution.
 The same party Committee was appointed as the constitutional commission in
accordance with the Acts of Union on March 25, 1977.
 Within a short time a proposed constitution was sent to the NEC of the party,
which adopted them in a day, and in camera.
 On 16 March 1977, the president appointed the Constituent Assembly on the
same day as the Committee, to discuss and enact the new constitution.
 The bill for the new constitution was published seven days before the
Constituent assembly met to discuss it
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 The constituent assembly enacted the Constitution in three hours after it was
presented to it.
TOPIC THREE
LEGISLATIVE POWERS OF THE ADMINISTRATION
MEANING OF DELEGATED LEGISLATION
 Delegated legislation is the law made by the executive authority under the
powers given to them by the parent Act or enabling Act or principal legislation.
FACTORS FOR GROWTH OF DELEGATED LEGISLATION

(REASONS/RATIONALE OF DELEGATED LEGISLATION)
a) Pressure upon parliamentary time

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b) Technicality of subject matter

c) Flexibility
d) to meet unforeseen contingencies/emergent situations
METHODS OF DELEGATION
Different methods of delegation, which are frequently in application in Tanzania, are

discussed below:
a) Power to fill in details

b) Power of inclusion and exclusion
c) Power to impose tax:- i) a power to bring certain transactions or commodities
under the tax or exempt from the tax is delegated and ii) a power to fix the rates
of tax is delegated to the executive.
d) Power to bring an Act into operation
e) Power to extent the application of the Act
CONDITIONAL DELEGATION AND SUB-DELEGATION
 In conditional delegation, no legislative function is delegated to the executive

authorities. Only the said Act is brought into force by the executive on the
fulfillment of certain conditions or contingencies.
 Sub-delegation, the statute confers some legislative powers on an executive
authority and the latter further delegates those powers to another subordinate
authority or agency. But it is to be noted that the maxim delegates non potest
delegare (a delegate cannot further delegate)
CONTROL OF DELEGATED LEGISLATION
1. Judicial Control of delegated legislation

2. Parliamentary control
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Judicial Control of delegated legislation
The validity of delegated legislation is determined by courts by applying two tests.

They are the following:
1) Substantive ultra vires: if the delegated legislation has gone beyond the scope of
the authority conferred on the executive by the parent Act or by the Constitution,
a) When the Parent Act is unconstitutional

b) When the delegated legislation is inconsistent with parent Act
c) When delegated legislation is unreasonableness
d) When delegated legislation is made on bad faith
e) When there is Sub-delegation
f) If the delegated legislation oust the jurisdiction of court
Procedural Control: If a subordinate legislation fails to comply with certain

procedural requirements.
a)Consultation
b) Publication
c) Laying before legislature
2. Parliamentary Control over delegated legislation
 Direct but general control over delegated legislation is exercised: through debate,
questions or private motion
 Laying on Table
 Indirect control is exercised by Parliament through its Committees.
LEGAL BASIS OF DELEGATED LEGISLATION IN TANZANIA
 Articles 64 (1) of the CURT provides for legislative powers are vested upon the
parliament. Delegated legislation is provider under article 97 (5) of the CURT.
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The Constitution of the United Republic of Tanzania, 1977 (RE: 2005) Article 97(5)
"The provisions of this Article or Article 64 of this Constitution shall not prevent Parliament
from enacting laws making provisions conferring on any person or department of Government
the power to make regulations having the force of law or conferring the force of law on any
regulations made by any person, or any department of Government".
ADMINISTRATIVE TRIBUNAL IN TANZANIA
Definition of Administrative Tribunals
 Are bodies established to decide various quasi-judicial issues in place of ordinary

courts.
Why do we call them 'administrative tribunals' or 'quasi-judicial bodies' or 'statutory

tribunals'?
 They are known as administrative tribunals because they are chaired by lay
administrators (normally, non-lawyers) who are either appointees' of the
President or Minister for a fixed term.
 They are referred to as quasi-judicial bodies since they are not full-fledged courts
(i.e. not courts of law properly so called, they have
supplemental/complementally role to the Courts).
 They are called statutory tribunals simply because they are creations of the statute.
Types and examples of Administrative Tribunals in Tanzania
(a) Statutory Authority:

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This refers to individual holders of public offices who have statutory powers to hear
disputes.
(b) Statutory Tribunals:

These are adjudicative body or agency established by specific Acts of Parliament.
Examples;
 Military Tribunal (Court Martial),

 The Tax Revenue Appeals Board,
 The Environmental Appeals Tribunal,
 The Fair Competition Tribunal,
 The District Land and Housing Tribunal,
 The Ward Tribunal and etc.
 Commission for Mediation and Arbitration (CMA)
LEGAL BASIS OF ADMINISTRATIVE TRIBUNALS IN TANZANIA
 The Constitution of Tanzania (supra) is silent as to the delegation of judicial powers

to other organs of the state. However, by implication (not expressly provided)
 Article 13(6)(a) of the Constitution of Tanzania (supra) and Article 12(6)(a) of the
Constitution of Zanzibar (supra) recognise tribunals. The said Articles require "the
Court" and "other agency" to take into account the principle of fair hearing in
deciding disputes.
ORDINARY COURTS V/S ADMINISTRATIVE TRIBUNALS
(a) Similarities:
 Both are adjudicative machineries (i.e. invested with judicial powers).

 Both are governed by Acts of Parliaments.
 Both have permanent existence.
(b) Differences:
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 All courts are tribunals but not all tribunals are courts.
 Courts are part and parcel of the judiciary while tribunals are considered part of
the executive (i.e. they have hybrid functions).
 Essentially, Courts have unlimited powers to adjudicate, but tribunals have
limited adjudicative powers.
 Courts handle disputes objectively, while tribunals deal with disputes
subjectively.
 Courts can decide the 'vires' (constitutionality/legality/fairness) of a
legislation/law, but tribunals can not do so.
 Courts are presided over by officers trained in law, while most of tribunals are
chaired and composed of laymen.
CHARACTERISTICS/ FEATURES OF ADMINISTRATIVE TRIBUNALS
Administrative tribunals are characterized by following features;
 Administrative tribunals are constituted by Acts of the Parliament (and not by

Government) i.e. tribunals are statutory creatures'
 Decisions of administrative tribunals are judicial rather than administrative.
Tribunals decide on legal issues, in so doing, they confer or restrain rights to
individuals.
 Administrative tribunals do not deal with cases in which a government is a
party. They adjudicate disputes between businessmen, employer/employee,
landlord/tenant, and etc.
 Administrative tribunals are not bound by strict rules of procedures, evidences
and other legal technicalities.
 They have judicial powers (e.g. to summon witnesses, pass legally enforceable
decisions and etc).
Why Administrative Tribunals?

i. Courts settlement proved to be expensive, slow and formalistic- hence
need for administrative tribunal
ii. Courts adheres with technicalities-administrative tribunal are not
bound by legal technicalities
iii. Administrative authorities can take effective steps for enforcement of
the aforesaid preventive measures, e.g. suspension. Revocation or
cancellation of licences, destruction of contaminated articles, etc.
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iv. Technicality of subject matter-administrative tribunals are suitable to

such matters
TOPIC FOUR
SUIT AGAINST GOVERNMENT
Types of Government in Tanzania
1. Central government-
2. Local government
The laws governing suit against government are:
1. Government Proceedings Act, Cap 5 -deals with suit against central government
2. The Local Government (District Authorities) Act, CAP 287 and the Local
Government (Urban Authorities) Act, CAP 288
 The Government by itself is the large institution comprising of a numerous

number of Departments and executive agencies, thus its legal proceedings are
protective, unique and different from all other proceedings involving ordinary
individuals. A legal proceeding against the Government is the process of instituting legal
actions against the Government in the competent court or tribunal. The Government
being an institution and operate through human flesh may be liable before the
court of law for example for tort and breach of contracts.
PROCEDURES FOR SUING THE CENTRAL GOVERNMENT
 Section 6 of the Government Proceedings Act, Cap. 5 of 2002 provides for

procedures for suing the central government. The procedural requirement are:
1. There must be notice of not less than ninety days (90) of the intention to
sue the Government
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2. The notice must specify the basis of your claim against the Government
3. The copy of the claim must be served/sent to the Attorney General
4. A copy of the plaint/claim must be served upon the Government
Ministry, Department or Officer that is alleged to have committed the
civil wrong.
5. Attorney General must be joined as co-defendant
PROCEDURES FOR SUING THE LOCAL GOVERNMENT
District Authorities
 Section 190 (1) & (2) of the Local Government (District Authorities) Act CAP 287
provides for procedures for suing the district authorities. The procedural
requirement are:
1. One month notice of the intention to sue the district authority
2. The notice must specify , cause of action , name and place of abode of the
intending plaintiff, the relief thought
3. The mode of serving one month notice to relevant authority;
a) Delivery
b) Through registered post address
Urban Authorities
 Section 106 (1) &(2) of the Local Government (Urban Authorities) Act CAP 288
provides for procedures for suing the urban authorities. The procedural
requirement are:
1. One month notice of the intention to sue the district authority
2. The notice must specify , cause of action , name and place of abode of
the intending plaintiff, the relief thought
3. The mode of serving one month notice to relevant authority;
a) Delivery
b) Through registered post address
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TOPIC FIVE
PREROGATIVE ORDERS
INTRODUCTION
 The constitution of the United Republic of Tanzania, 1977 under article 30 (3)
provides for judicial review in the following words:
Where 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.
 The part referred to in the quoted clause deals with basic rights and duties, that
is, the bill of rights. Therefore, this clause provides for judicial review of
administrative actions.
 Judicial review can be exercise through prerogative orders.
Meaning of Prerogative Orders

 Are orders issued by the High Court in exercising its supervisory jurisdiction
over inferior/subordinate courts, tribunals, and public authorities through a
process known as judicial review.
 Prerogative orders tare remedies available against a decision or proceedings of
the administrative authority/the Government.
Prerogative orders are:

 Mandatory orders (mandamus),
 quashing orders (certiorari),
 prohibiting orders (Prohibition),
 (habeas corpus’)
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PREROGATIVE ORDERS
a) MANDATORY ORDERS (MANDAMUS)
 Mandamus literally means ‘we command.’ It commands the person, to whom it

is addressed to perform some public or quasi-public legal duty which she/he has
refused to perform and the performance of which cannot be enforced by any
other adequate legal remedy
Conditions necessary for an order of mandamus to be issued are:

 The applicant must have demanded performance and the respondents must have
refused to perform;
 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;
 The public duty imposed should be of an imperative nature and not a
discretionary one;
 The applicant must have a locus standi , that is he must have sufficient interest in
the matter he is applying for;
 There should be no other appropriate remedy available.
b) QUASHING ORDERS (CERTIORARI)
 Certiorari is used to bring up into the High Court a decision of some inferior
tribunal or authority in order that it may be investigated. If the decision does not
pass the test, it is quashed.
Conditions necessary for an order of certiorari to be issued are:

 That the judicial or quasi-judicial body must have legal authority
 That such authority must be in respect of determining questions affecting rights
of subjects
 It must have duty to act judicially
 The authority must have acted in excess of its authority
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c) PROHIBITING ORDERS (PROHIBITION)
 The writ of prohibition is a writ issued by the Supreme Court or a High Court to
an inferior court forbidding the latter to continue proceedings therein in excess of
its jurisdiction.
Conditions necessary for an order of prohibition to be issued are:

 There must be a proof that a judicial or quasi-judicial body has no jurisdiction or
it acts in excess of jurisdiction vested on it
 There must be proceedings pending before a judicial or quasi-judicial authority.
 If the proceedings are partly out of the jurisdiction of the particular body then it
can be issued only against such matters which the judicial or quasi- judicial body
lacks jurisdiction.
d) HABEAS CORPUS
 Habeas corpus is an order of the court calling upon the person who has detained
another, to produce the latter before the Court in order to let the Court know on
what ground she/ he has been confined and to set him/her free if there is no
legal justification for the imprisonment.
 Who may apply?-the detained person may apply, but if he is unable to make
such application, it can be made by any other person having interest in the
detained person.
The writ of habeas corpus is, however, not issued in the following cases:
 Where the person against whom the writ is issued or the person who is detained
is not within the jurisdiction of the Court,
 To secure the release of a person who has been imprisoned by a court of law on a
criminal charge,
 To interfere with a proceeding for contempt by a court of record or by the
Parliament
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LAW GOVERNING PREROGATIVE ORDERS
 Application for and issuing of Prerogative Orders are governed by the Law
Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 31 of the
Revised Edition, 2002 and the Law Reform (Fatal Accidents and Miscellaneous
Provisions) (Judicial Review Procedure and Fees) Rules, 2014 – GN No. 324 of
2014.
Section 17 of Cap. 310, provides:
(2)……The High Court shall have 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 he
proceedings or matter as the case may be.
 Section 18 stipulates that the Attorney General has to appear as a party in any
civil matter seeking for such orders against the Government.
Hon. Mwalusanya, J. confirmed the position above in John Mwombeki Byombalirwa’s

case, where the following insight is given;
“The law on the prerogative orders is on the move to meet the changes of
modern government. What was the position in 1960 as regards the
contents of those rules is not the same now. The law has been constantly
changed by judges to see how effectively the law can protect an individual
citizen from oppressive administrative actions.”
GROUNDS FOR APPLICATION FOR PREROGATIVE ORDERS

26
 ILLEGALITY
o Absence of power
o Excess of jurisdiction
o Unlawful delegation
o Error of law on the face of records-decision based on improper position of
the law
 IRRATIONALITY
o Failure to exercise discretion-failure by authority to exercise its mind, care,
sense of responsibility
o Unreasonableness
o Mala fide or bad faith
o Acting under dictation
 Procedural impropriety
 Failure to follow statutory procedures

 Breach of rules of natural justice eg. Right to be heard and right against
bias.
PROCEDURES IN RELATION TO APPLICATION FOR PREROGATIVE ORDERS
1. Application for Leave to Apply for Prerogative Orders

Document required:
o Chamber Summons supported by an affidavit,
o Statement of the relief sought and the grounds on which the
relief is sought;
2. Application for Prerogative Orders

o Upon being granted leave to apply for prerogative orders, the next
step will be to actually apply for Prerogative Orders
o Time limit: 14 days after leave has been granted
27
Document required:
 Chamber Summons supported by an affidavit,

 Statement of the relief sought and the grounds on which the relief is sought;
Time limit
 The leave to apply for judicial review shall not be granted unless the application
for leave is made within six months after the date of the proceedings, act or
omission to which the application for leave relates.
TOPIC SIX
HUMAN RIGHTS
TO BE INCLUDED:
a) Promotion of human rights

 Provision of legal education
 Crating awareness
 Roles of NGO’s and civil societies
b) Protection of human rights
 Court of law-High Court
 Commission for human rights and Good Governance
 Human rights instruments, eg. Laws, bill of rights under the
Constitution
c) Proportionality test of a limitation clause in the bill of rights
28
WHAT ARE HUMAN RIGHTS?
 Human rights are the basic rights and freedoms that belong to every
person in the world, from birth until death
HUMAN RIGHTS PRINCIPLES
 Human rights are universal- All people everywhere in the world are
entitled to them.
 Human rights are inalienable- they cannot be taken away
 Human rights are indivisible - all human rights have equal status, and
cannot be positioned in a hierarchical order
 Human rights are interdependent- all human rights are interrelated,
they depend one another
EVOLUTION OF HUMAN RIGHTS: THREE GENERATIONS OF HUMAN

RIGHTS
First Generation (Civil and Political Rights)
 Civil and political rights are a class of rights that protect individuals' freedom from
infringement by governments, social organizations, and private individuals. They
ensure one's ability to participate in the civil and political life of the society and
state without discrimination or repression.
Date back to 18th Century

Designed to protect the individual against state interference
 Right to vote
 Right to assemble
 Right to free speech
 Right to a fair trial
 Right to freedom from torture, abuse
29
 Right to protection of the law
Second Generation (Economic, Social and Cultural Rights)
19th Century response to widespread poverty in wake of industrial revolution

Prohibit government from denying access, entitle individuals to get protection
from state if third parties interfere with rights,
oblige states to take measures to improve overall social situation
 Right to education
 Right to housing
 Right to health
 Right to employment
 Right to an adequate income
 Right to social security
Third Generation (Collective Rights)

First articulated in second half of the 20th Century
With exception of African Charter on Human and People's rights, have not been
incorporated into human rights treaties
 Right to economic development

 Right to prosperity
 Right to benefit from economic growth
 Right to social harmony
 Right to a healthy environment, clean air and water, etc
HUMAN RIGHTS AND ITS ENFORCEMENT IN TANZANIA
 The Tanzanian Bill of Rights categorically establishes the High Court of Tanzania
as the main means by which human rights abuses may legally be vindicated by
the victims. The relevant article 30(3) of the constitution states:
“Where any person alleges that any provision of this part of this chapter
(the Bill of Rights) or any other law involving a basic right or duty has
been, is being or likely to be contravened in relation to him in any part of
the United Republic, he may, without prejudice to any action or remedy
30
lawfully available to him in respect of the same matter, institute

proceedings for relief in High Court. ”
ENFORCEMENT OF HUMAN RIGHTS/BILL OF RIGHTS IN TANZANIA
 Relevant law- Basic Rights and Duties Enforcement Act 1994

 This Act enforces rights which are enshrined under article 12-29 of the CURT,
1977
 High Courts of Tanzania have been vested power to hear and determine human
rights cases.
PROCEDURES
 Application to be made by petition-petition means a formal application made to a
court in writing that requests action on a certain matter.
 Content of petition
o name and address of each person against whom redress is sought
o the grounds upon which redress is sought
o specific sections in part iii of chapter one of the constitution
o particulars of the facts, but not evidence
o the nature of the redress sought
 Service of petition
o A copy of the petition shall be served
by petitioner on each person against
whom redress is sought
o If redress is sought against
government, a copy of the petition
must be served to Attorney General.
31
TOPIC SEVEN
PRINCIPLES OF NATURAL JUSTICE
Meaning of Natural Justice
 Natural justice refers to principles the breach of which may prevent justice from
being seen to be done.
English Law recognises two principles of natural justice:
a) Nemo Judex in Causa sua: No man shall be a judge in his own cause, or
the deciding authority must be impartial and without bias; and
b) Audi alteram partem: Hear the other side, or both the sides must be heard,
or no man should be condemned unheard.
32
1. NEMO JUDEX IN CAUSA SUA (RIGHT AGAINST BIAS)
 It means no man can be a judge in his own cause.

 Justice should not only be done, but manifestly and undoubtedly be
seen to be done
 It is the minimal requirement of the natural justice that the authority giving decision
must be composed of impartial persons acting fairly, without prejudice and bias
Types of bias
i) Pecuniary bias,-Judge should not hear a case in which he has a pecuniary

interest
ii) Personal bias, - Judge should not hear a case relating to persons who have a
close relationship with him/her eg. Friends, his/parents etc
iii) Official bias or bias as to subject-matter- Judge should not have interest in the
subject matter of the case
2. AUDI ALTERAM PARTEM
Meaning
 Audi alteram partem means 'hear the other side', or 'no man should he condemned
unheard' or 'both the sides must be heard before passing any order'.
AUDI ALTERAM PARTEM INCLUDES:
 Notice-affected party must be given notice

 Hearing-affected person must be given an opportunity to be heard
Circumstances under which principles of natural justice do not apply
In the following cases, the principles of natural justice may be excluded:

i. Where a statute either expressly or by necessary implication excludes application
of natural justice;
33
ii. Where the action is legislative in character, plenary or subordinate;

iii. Where the doctrine of necessity applies;
iv. Where the facts are admitted or undisputed;
v. Where the inquiry is of a confidential nature;
vi. Where preventive action is to be taken:
vii. Where prompt and urgent action is necessary:
viii. Where nothing unfair can he inferred by non-observance of natural justice.

Administrative Law-SUMMARY NOTES 2

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1

Prosper P. Tegamaisho, LL.B (Hons), LL.M (SAUT), LL.M (Turin, Italy)

LL.B (Hons)-SAUT, LL.M (SAUT), LL.M (Turin, Italy)

DEFINITION OF ADMINISTRATIVE LAW

SCOPE OF ADMINISTRATIVE LAW

REASONS FOR GROWTH OF ADMINISTRATIVE LAW

 Inadequacy of the Legislations-administrative law provides room for executive

HISTORICAL GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW

 Introduced in 20th century

 Existed in 18th century

 French administrative law or droit administratif is a branch of law which deals

CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW

Relationship between administrative law and constitutional law

 Both are branches of public law

2.1 MEANING OF CONSTITUTION

o In Modern times, rule of law was propounded by Albert Dicey

Meaning of Rule of Law

RULE OF LAW UNDER CONSTITUTION OF TANZANIA

 The rule of law is adopted/enshrined in the Constitution of the United Republic

Meaning of separation of power

 refers to the division of government responsibilities into distinct

MONTESQUIEU’S STRICT DOCTRINE (TRIPARTITE SYSTEM)

It is generally accepted that there are three main categories of governmental

SEPARATION OF POWERS IN PRACTICE

However, there are still interferences

APPLICATION OF THE DOCTRINE OF SEPARATION OF POWERS IN THE

 Separation of power in Tanzania is found under article 4 (1) of the Constitution

All state authority in the United Republic shall be exercised

INTERFERENCES OF SEPARATION OF POWERS IN TANZANIA

3. PARLIAMENTARY SUPREMACY/PARLIAMENTARY SOVEREIGNTY

Meaning of parliamentary supremacy

 It means the parliament is the supreme law-making body. It means, it is

 A valid Act of Parliament cannot be questioned by the court.

 Independence of judiciary means that the judiciary should be independent from

FACTORS TO STRENGTHEN INDEPENDENCE OF JUDICIARY

 Security of tenure of the Judicial Officers-judges can not directly be removed

FACTORS UNDERMINING JUDICIAL INDEPENDENCE

Meaning of ministerial responsibility

Types of ministerial responsibility

a) Individual ministerial responsibility- means a minister is responsible or

Grounds/reasons for Individual ministerial responsibility are:

b) Collective ministerial responsibility- This is the responsibility or accountability

Grounds/reasons for Individual ministerial responsibility are:

 Misleading the parliament by the cabinet.

EXCEPTIONS TO THE DOCTRINE OF MINISTERIAL RESPONSIBILITY

 Doctrine of ministerial responsibility can not apply if:

CONSEQUENCES OF MINISTERIAL RESPONSIBILITY

 Resignation of the minister.

MINISTERIAL RESPONSIBILITY IN TANZANIA

 Collective ministerial responsibility – provided under article 53 (1) (2) of the

MECHANISMS TO ENFORCE MINISTERIAL RESPONSIBILITY IN TANZANIA

 Tabling private motion in the parliamentary session questioning on performance of any

HISTORY OF CONSTITUTIONAL MAKING IN TANZANIA

a) Independence Constitution, 1961

 Based on west minister model

b) Republican Constitution 1962

c) The Interim Constitution of 1965

d) Permanent Constitution 1977

 The President of the United Republic of Tanzania appointed a 20-person joint

LEGISLATIVE POWERS OF THE ADMINISTRATION