1

Developments in Judicial Review in Mainland Tanzania.Developments in Judicial Review in Mainland Tanzania.Developments in Judicial Review in Mainland Tanzania.Developments in Judicial Review in Mainland Tanzania.

Issa G. Shivji.Issa G. Shivji.Issa G. Shivji.Issa G. Shivji.

IntroductionIntroductionIntroductionIntroduction

In this paper, I propose to review the Tanzanian case law on judicial, review so as to

highlight the approaches, some advances made, areas of potential judicial creativity and

some problems of the supervisory jurisdiction of the high Court. I would like to think that

the picture that emerges, inspite of problems, is a hopeful one, I do not wholly subscribe to

the negative view taken by consultants of the Filmup Project Report who asserted that the

“quiet revolution” in judicial review which has been brought about and led by the judiciary

in so many commonwealth countries- Australia, Canada, India, New Zealand, United

Kingdom may be specifically noted-has so far passed Tanzania-indeed all the East African

jurisdictions-by.' (p.86). While there have undoubtedly been problems, as will clearly

emerge in this paper, the paper also shows and argues that there have been some

considerable steps forward in very short periods of time and bursts of judicial creativity and

activism particularly in 1990s.

Relying on reported cases the Filmup consultants found that between 1921-82 only 30

judicial review cases were reported. Speaking through those figures they dared assert that

“there never has been in Tanzania a vigorous use of judicial review”. If they were referring

to the colonial period, they would be correct and for the understandable reasons which I

shall briefly discuss below. If they were speaking of the two decades after independence

they would still be correct- perhaps a little less; but if they were speaking of mid-eighties

and nineties they would not be incorrect but , in some respects, would have to place the

united kingdom behind Tanzania! As I discuss in detail below, the Kahama Gold Mines

decision presaged the celebrated M v Homes Office decision of the House of Lords by at

least 6 years. Even if the recently published 10 volumes (1983-92) of Tanzania Law Reports

were available when they wrote their report in 1994, the authors of the Filmup Project

would have never known about Kahama Gold Mines for the simple reason that it is simply

not repealed. A quick count shows that only about 19 judicial review cases have been

2

reported and even these are not always leading ones breaking new ground which review in

this paper that as it nay let the Filmup not detain us.

In this paper, the underlying thee I rely on and develop may be summed up as follows;

1. Judicial review is one mechanism by which a relatively open organ of the state (the

judiciary) can bring to light and. To some limited extent, redress the abuse of power

and authority committed by other organs of the state and public officials.

2. As a means of actually deterring the continued abuse for power and impacting on

the value, if at all, lies in dragging out of the cobwebs into light the spidery tentacles

of abusive and oppressive exercise of power.

3. During much of the colonial period judicial; review had virtually no role to play for

the simple reason that colonialism itself was one gigantic abuse of power. Access to

colonial courts which were racially segregated was denied the large majority. Courts

in effect served largely the immigrant communities involved in commercial and

other matter of disputes. On the other hand, the only branch of public law that had

any place in colo9nial legal edifice was criminal law which applied direct coercive

sanctions shorn of all liberal pretence to regulate the economic, social and cultural

behavior of the recalcitrant lives.

4. For the first two decades if independence, for reasons which I have explained

elsewhere the legal terrain remained much the same although the outward trappings

of racism in the colonial law were removed (Shivji 1995). The legal canvas was

constituted by a plethora of right-less laws and ac constitution without

constitutionalism. The state did not seek its legality, much less its legitimacy, in law;

rather it constructed a consensus, if at all, on other ideological terrain. Once again,

for different reasons and with a different texture this time round. The civil side of

Public Law- constitutional law and judicial review- had an insignificant place. Even

a few judicial review decisions that came through higher courts involved the

commercial class complaining over licensing, rents and such like, or the former

privileged trying to hang over their past privileges ( see, for instance the case of

Bukoba Gymkhana.

3

5. It was the responsibility of the bill of rights which gave a big push to judicial

activism in the field or Judicial review

6. Bred and steeped in private law litigation, judge, and advocates continued to deal

with judicial review as if it were another species of private law.

7. It is in the shifting of the approach to public law what! what matters is to control

public law powers on the one hand and right public wrongs, on the other,that in

my view lies the future direction of development of this branch of law

(McEldowney, 1994 Ch.5).

9. It is with the public law approach in mind that I have desperately made some

suggestions of reform through judicial activity.

10. It is again through the lenses or accountability of public power and the

assertion of public lights that I have unalysed and made some cnucisms or the

existing case law, as well as pointing out potential areas of development and further

advances.

Source of Source of Source of Source of Supervisory JurisdictionSupervisory JurisdictionSupervisory JurisdictionSupervisory Jurisdiction

The High Court derives its supervisory jurisdiction from Section 2(2) of the Judicature and

Application of Laws Ordinance (JALO, CAP 453). As is well known, under this provision

the High Court exercises its jurisdiction in conformity with the substance of the common

law, doctrines of equity and "with the powers vested in and according to the procedure and

practice observed by and before Courts of Justice in England. The substantive law practice

and the procedure governing applications for judicial review are therefore governed by

common law and the practice and procedures obtaining in England on the date of

reception.

I would go further and argue that the source of judicial review is the Constitution itself.

Article 108(1) establishes the High Court as the superior court of record with unlimited

original jurisdiction while sub-article 2 gives it general jurisdiction in any matter which "in

accordance with legal traditions and conventional practices" obtaining in Tanzania is to be

4

dealt with by the High Court. By 1977 it can be said that through the supervisory

jurisdiction of the High Court through judicial review had become part of the legal

practices of Tanzania. This is supported further by article 13(6) (1) which provides for right

of appeal or any other legal remedy. Any other legal remedy presumably includes judicial

review. In effect, therefore, it is submitted that he basis for judicial review is to be found in

the constitution of the united republic of Tanzania 1977 itself.

OriginatingOriginatingOriginatingOriginating Process Process Process Process Procedure and PracticeProcedure and PracticeProcedure and PracticeProcedure and Practice

The procedure and practice I judicial review proceedings have had a rather chequered

history precisely because, as argued in the introduction, it was not the kind of jurisdiction

easily invoked during much of the colonial and the first two decades of independence

period. It seems that private practitioners grounded in private law procedures more or less

earned over procedures of the civil procedure code to judicial review.

Although the origins are not very clear, the application for prerogative orders has always

been in two stages. The first stage is to apply for leave to apply for prerogative orders which

is done exparte.

An application for leave used to be done in chamber summons accompanied by an

affidavit. The affidavit itself would depose to both material facts as well as the grounds for

the application, a form of affidavit commonly used in interlocutory applications under the

civil procedure code of 1966.

In the early practice, once the leave was granted the same application papers served as the

application for the second stage. The correct procedure would have been to institute a

fresh second application to be heard interprets wherein the affidavit it would depose to the

fact that leave had been granted. Happily in this regard the procedure has changed and is

fairly settled.

It is now well established that the application for leave is instituted by (i) a chamber

summons accompanied by (ii) statement of grounds and (iii) an affidavit. This was stated

unambiguously by Kyando.J. in Nkuzi v. Tanzania Sisal Authority. In that case, the court

5

took a rather serious view of the absence of a statement and struck out the application as

competent. In an earlier case of Mwakibete v The Principal Secretary, however, the court

adjourned the matter so as to allow the applicant to file the statement. As a matter of fact,

in a somewhat novel procedure, the respondent even filed a counter statement in addition

to a counter affidavit.

Leave stageLeave stageLeave stageLeave stage

I would like to raise two issues regarding this stage of procedure. The first one relates to

the burden o n the applicant at this stage and the second issue arises from section 17A of

the Law Reform (Fatal Accidents and Miscellaneous Amendments) (no 3) Act, 1991, No

27 ( 1991 amendment).

The practice before 1991 amendment was that the applicant would argue orally the exparte

chamber application. Although I have not seen a decided authority directly on the case,

apparently some judges applied the same principles as those with regard to interlocutory

(temporary injunction in particular) in determining the application for leave. That is to say

the applicant had to establish a prima facie case and that the application for the prerogative

orders had a probability of success. I respect of interculatory injunctions (or temporary

injuction as is more popularly known in our jurisprudence) the House of Lords in the case

of American Cynamid V. Ethicon in very clear terms established that. “There was no rule

of law that the court was precluded from considering whether on balance of convenience

an interculatory injunction should be granted unless the plaintiff succeeded in establishing a

prima facie case or a probability that he would be successful at the trial of the action. All

that was necessary was that the court should be satisfied that the claim was not frivolous or

vexatious”

Without reference to cynamid case Mapigano J. independently arrived at a similar position

in the Case of Kahama Gold Mines v. Minister for Energy. I would submit that in an

application for leave for judicial review the same principles ought to apply. That is to say

the applicant at the leave stage need do no more than show in the words of Mapigano J.

“there is a substantial or serious question to be investigated”. In short the whole purpose of

the application for leave would be to weed out frivolous and vexatious applications and

6

perhaps those, on the face of it, that do not exhibit good faith or ex facie are an abuse of

the legal process. I now turn to the second problem engendered by section 17A (1).

Section 17A (1) which was introduced ill 1991 requires that at the leave stage the court shall

summon the Attorney General to appear as a party and if he does not on the date

mentioned in the summons the court may proceed exparte. The court of Appeal has

construed this section to be mandatory and has held that it applies only al the leave .The

Attorney General is not a necessary party at the second stage when the application is being

heard on its merits (see Mecaina v. Commissioner of Income Tax and National Housing

Corporation v. Tanzania Shoe Co.) The objective of this provision, which is unnecessarily

cumbersome is not at all clear particularly when the trend has been to expand the scope of

judicial review and make judicial review proceedings as easily accessible review of the East

African Cast Law by Mwalusunya J. in Mwanza Restaurant v Mwanza Municipal Director.

The original wording of the clause in the bill, the statement of the objects and reasons, the

protest against the proposed bill by the university community, the context of the time and

some hard heating judgments by a few judicial review of effectiveness as a remedy against

abuse of administrative / executive power.

The clause in the bill which was rather clumsily drafted required a prior notice to be given

to the Attorney General in an application for the three prerogative orders in any civil

matter against the Government or in any proceedings involving interpretation of the

Constitution. The statement of "objects and reasons" on the proposed amendment, on the

other hand, says that the effect of 17A was "that there has to be written consent from the

Minister responsible for legal affairs before the institution of all application for an order of

Mandamus, Prohibition or Certiorari in respect of any civil matter against the government.'

This would have brought judicial review proceedings in line with the then Government

Proceedings Act which required consent of the minister before private legal proceedings

could be instituted against the government. Thus the clause in the bill differed significantly

from the statement of objects. The latter perhaps betrayed the intention.

However the consent provision as is well known was declared unconstitutional and the

7

Law changed replacing the requirement of consent with that of a prior notice. But even

while the consent provision existed, the courts had held that judicial review proceedings

were not caught by it.

Be it as it may be, when the Act was finally passed it gave us the present form of section

17A. The question then is, what exactly is the role of the presence of the Attorney General

at the leave stage?

As it turns out in practice Attorney General particularly in matters considered sensitive by

the Executive which is what most judicial review proceedings are anyway files a fully-

blown defence with preliminary objections and challenging every small fact and detail that

he can. The result is that the hearing at the leave stage turns to be a fully fledged hearing.

(For a good illustration. the Baizi case). If leave is indeed granted, the result would be in

effect, that the same matter would be adjudicated upon twice, thus duplicating efforts,

wasting a lot of valuable time at great public expense and delaying in orderly matters of

great public concern.

In addition the case law cited above which has attempted to make the leave stage more or

less a formality, a judicial reform which took many years, has been virtually reversed by

section 17A.This is clearly an area which cries out for either judicial or legislative reform in

the light of the current relatively liberal approach of the judiciary to public law rights and

the provisions of the constitution which guarantee access to expeditious justice (see article

13(6) (a) read together with article 29(1) of the Constitution).

Instituting ofInstituting ofInstituting ofInstituting of Applications for Applications for Applications for Applications for Judicial Judicial Judicial Judicial ReviewReviewReviewReview

I will briefly turn to the issue of instituting of applications for judicial review. As is known in

England for historical reasons the applications for judicial review are instituted as if the

applicant was the State [i.e. R v. (the body whose decision is being challenged) ex parte the

applicant). In Tanzania this particular from has never been followed ill spite of the fact that

in the erroneous way of instituting was pointed out by the then Court of Appeal for Eastern

Africa in the case of Fanners 811s Service v The Transport Licensing Appeal Tribunal

some forty years ago. Our own Court of Appeal has drawn attention to the same issue in

the case assistant import controller v Magnum Agencies. At the leave stage, being ex parte

8

in the strict sense, the institution, as suggested in the Farmers case, should begin with: In

the matter application by xx xx for leave to orders of certiorari and Mandamus;

AND

In the matter of (the name of the decision –making body) (the law etc. under which it was

made as appropriate)

Where leave is granted, the instituting changes to R v etc, exparte (the applicant). To the

best of my knowledge this procedure has not been followed after Assistant controller case.

Perhaps traditions die hard, and as with Mwalusanya, J. in Mwanza Restaurant, we may say

that this is too technical a matter to be bothered about. However for one reason, It is not

simply a technical matter and has the potential of introducing a lot of confusion. Proper

instituting helps to distinguish the two stages and this is very important. As I observed

earlier on, my experience is that practitioners do not even bother to file a new application

after leave. As a matter of fact, the papers filed for the leave stage are carried over to the

second stage.

Section 17A introduces further confusion since under it the Attorney General is a

necessary party at the stage, which would mean that the designation of the Attorney

General would be different at the two stages. At the leave stage, the Attorney General

would appear as a “necessary party” wearing the cap of a respondent and the chances are

even opposing vigorously what is symbolically and historically, at least, an application at his

behest. At the second stage, the Attorney General as the representative of the state (R. v)

would appear as the initiator, albeit only formally. In fact, there is a further farce added to

the comedy in that the Attorney General may also be cited as a respondent because he is

often cited as a representative of public bodies and officers whose acts or omissions are

challenged in judicial review proceedings.

This confusion can perhaps be best settled by the Chief justice making rules under the Law

Reform etc, stature as has been suggested many times, But, in my view, the problems and

confusion discussed here, the issue of reform, Which touches on both the substantial and

procedural aspects of judicial review, cannot be resolved by a piece of subsidiary legislation

9

which is what the rules enacted by tile Chief justice would amount to. Whatever legislative

form of reform is eventually adopted, it is submitted that it should at least do the following:

1. Abolish the two-stage procedure and provide for a simple means for instituting an

application for judicial review, perhaps by way of an originating summons rather than a

chamber application. The latter has the disadvantage of dragging in the private law

technicalities of the Civil Procedure Code and the Evidence Act into public law

proceedings (see for instance, Mwakibete’s case at the High Court lever). Furthermore, as a

chamber application an important judicial process ends up being heard in chamber rather

than in an open court, which is not desirable.

2, The Attorney General could be brought in as an interest party or amicus curiae as a

matter of law. A practice rule within the Attorney General's Chambers should make it clear

that in public law proceedings the AG's role is not that of supporting or defending the

opposing parties but of upholding public law rights and interests, etc.

Marrying of RemediesMarrying of RemediesMarrying of RemediesMarrying of Remedies

This is one area where the Tanzanian case law has made a greater strike ahead of similar

developments in England. This is particularly so with respect to interlocutory injunctions.

Four issues have arisen in respect of an application for temporary made injunctions made

together with an application for leave to apply for judicial review. First, whether typically

private law remedies such as injunction can be married with prerogative remedies.

Secondly, whether a temporary injunction may be granted before the leave to apply for

judicial review is considered and determined. Secondly, whether an injunction, interim or

final, may be issued against public government bodies officers. Fourthly, whether

applications for interim orders are governed by the Civil Procedure Code Act, 1966 and

the Government Proceedings Act 1967.

The first, third and fourth questions were explicitly considered y a path-breaking judgment

of the High Court in the case of Kahama Gold Mines. In this case, the then state attorney,

Mr. Chenge, representing the respondent Minister, took issue with the citing of Order 37

10

of the CPC as the enabling provision. Many private practitioners dealing with usually

private law matters consider Order 37 as the source of the court’s jurisdiction to issue

interim injunctions.

Mapigano. J. in his usual succinct if brief, style, held that independently of any question as

to statutory provisions the High Court has in general original and independent jurisdiction

to issue interlocutory orders to prevent what it considers continuing or intended to a party

where it appears to the court to be just as well as convenient. In effect therefore, the court

was saying that as a superior court of record with unlimited jurisdiction, the high court has

inherent jurisdiction to issue interim orders in the interest of justice. This position has been

upheld in the later case of Gordhan and a recent ruling by Katiti, J. in BAWATA V.

Registrar of societies. In the later J. traced the source of this jurisdiction at law and equity to

section 2(2) of JALO, discussed above.

The state attorney Kahama Gold Mines further argued that under the provisions of the

General Proceedings Act and the CPC, the court had no jurisdiction to issue injunctions

against the government and that, if at all it was minded to do so, it should issue a

declaration instead of an injunction in terms of section 11(2) of the Government

Proceeding Act.

Mapigano J, held that neither the CPC nor the Government Proceeding Act was applicable

to an application for prerogative orders because the Government Proceeding Act is

basically designed to make private law applicable to the Government ….. but matters

relating to prerogative remedies do not belong to the province of private law. They pertain

to public law Kahama Gold Mines was specifically followed in the later case of Gordhan in

which kyando J. granted an order for a temporary injunction even before the leave to apply

for prerogative orders had been considered, contrary to, for example earlier practice as

example of Golcher’s case which incidentally was not referred to in Gordhan’s case.

The House of Lords considered all these issues in England almost six years later in the

case of M v Home Office in which the law lords arrived at very similar conclusions. The

11

most comprehensive local decision on virtually the same issues is the case of Vidyadhar

Chavda v Director of Immigration. In a reasoned judgment and relying on M v Home

Office Samatta J. adopted an expressly public law approach to resolve the contentions

raised by Mr. Mallaba, a state attorney in terms reminiscent of his colleague (Mr. Chenge’s)

arguments in the Kahama Gold Mines case almost a decade earlier Samatta J. summed up

his approach in a memorable passage at the end of his judgment thus:

“if I may repeat what I ventured to say in my earlier ruling there is no room for

doubt that this Court has the power to grant an interlocutory injunction before

hearing an application for leave to apply for prerogative order.

For the reasons I have given I am satisfied that the law, justice and common sense

dictate that I uphold Mr. Mkono’s contention that s.11 of the Government

Proceeding Act does not stand in the applicant’s path in the instant application.

Except to autocrats it must be intolerable that in a democratic society like ours

courts should be impotent to grant a temporary injunction in favour of an individual

who complains of unwanted or oppressive use of statutory powers by a government

minister or official. It should be made perfectly clear. I think that this court can halt

the bulldozer of the state before it squashes the right of an individual, company or

society.”

The authorities cited so far deal with interim orders which it is now well settled can be

combined with prerogative remedies. My limited research has failed to locate any direct

authority on the marrying of final private law remedies such as permanent injunctions and

declarations, with public ones. Working from first principles though and extending existing

authorities (all other things being equal) it is submitted that the court has powers to marry

private and public law remedies in an appropriate application. Probably the most

contentious one in this regards would be compensation or damages. This too would be so

not on any matter of principle but simply because damages and compensation have to be

proved specifically by evidence and judicial review proceedings are not best suited for this.

12

Finally it must also be pointed out that just as public and private law remedies can be

combined in judicial review proceedings, so also public law remedies can be combined in

judicial review proceedings, so also public laws remedies such as certiorari and mandamus

can be granted as collateral remedies in private law proceedings, initiated for example by a

suit. It was also held by the court of appeal in the leading case of Patman Gaments v

Tanzania Manufacturers which was subsequently approved in Kaijage V. Esso.

I now turn to discuss two aspects of judicial review which remain undeveloped.

Matters of Evidence: Discovery by inspection and interrogatoriesMatters of Evidence: Discovery by inspection and interrogatoriesMatters of Evidence: Discovery by inspection and interrogatoriesMatters of Evidence: Discovery by inspection and interrogatories

Evidence in Judicial review is mainly by affidavits. In theory the deponent can be cross

examined but this is rarely done in practice. In most judicial review applications, affidavit

evidence should suffice. More so if our state attorneys representing public bodies were not

hung up with private law approaches where counter affidavits read like statements of

defense denying even obvious facts and putting the applicant to strict proof thereof.

But there is another potential way forward by which judicial review cases could

expeditiously be fairly disposed of in the interest of protection of law rights. This is by

permitting discovery by inspection of by administering of interrogatories. As a matter of fact

this method of discovering and producing evidence is most suitable to public law

proceedings. In a large number of cases an applicant is unlikely to posses relevant

documentary evidence of how the decision being impugned was arrived at. etc. through this

discovery and inspection, crucial documents and process of executive decision-making

would be brought to light. This would not only assist in disposing fairly and justly of the

application before the court but in the long run also work in favor of open government and

transparent decision making. Thus with cooperation from public bodies- which ought not

to deny access to relevant documents in the interest of fair and transparent administration

and liberal attitude on the part of the courts, judicial review can be further facilitated as a

mechanism of control of public power.

In England, as far as I can gather, the courts are still reluctant to order discovery. I have not

come across any Tanzanian authority on this. In principle, I suggest, the court has inherent

13

powers to do justice and under that jurisdiction may order discovery on application. This is

an area that need not await any legislative action and can be developed by judicial creativity.

Private Bodies with Public FunctionsPrivate Bodies with Public FunctionsPrivate Bodies with Public FunctionsPrivate Bodies with Public Functions

The leading case of Patman Garments put to rest hair-splitting distinctions (for an example

the Joseph Kassian) that used to be made between quasi-judicial, administrative and

ministerial bodies of functions to determine whether a body was amenable to supervisor

jurisdiction of the courts. What is important to look at is not the nature o character of the

decision-making body but rather the character of the decision made. if the decision

involves that is to say, rights of an individual, such a decision is reviewable.

It is now also well-established by Tanzanian case law that public bodies and official as well

as domestic tribunal (Clubs, Sport Association, and Societies) are amenable to judicial

review. Thus government ministers, other public officials and bodies exercising public

functions under the authority of law including statutory corporations (for example,

Institutions Of Higher Education, National Housing Corporation, Workers Development

Corporations) etc. (see Simeon Manyaki V The Institute Of Finance Management,

Sylvester Cyprian V University Of Dar Es Salaam, Lausa Alfan Salum V Minister Of Lands

& National Housing Corporation) could be subjected to judicial scrutiny. the high court has

also delivered bold judgments that the president does not have prerogative power of

dismissing a public servant at his pleasure (see James Gwagilo V Attorney General And

Said Juma Muslim Shekimweri V Attorney General).

A body which is not directly established by statute but is regulated by it and is, therefore,

deriving some of its powers under statute is also amenable to judicial review. A good

example is a school regulated by National Educations act (see Nyirabu V Attorney General

& Board Chairman, Songea Boys Secondary School).

What is contentious, and not settled yet, is whether a private body exercising public

functions fall under the courts supervisor jurisdiction. With privatization on the one hand,

and the state shedding off its traditional functions on the other hand, this issue becomes

quite significant. In England the courts have not been slow to assert their supervisory

14

jurisdiction over such bodies. in the English case of r v Panel on Take over’s and Mergers

exparte Datafin, Lloyd J having posited statutory bodies or bodies whose source of power is

statutory, and which are subject to judicial review, at the one end, and bodies which derive

their power purely from contract, which are not subject to judicial review, that the other

hand made this significant observation:

“In between these extremes there is an area in which it is helpful to look not

just at the source of the power but at the nature of the power. If the body in

question is exercising public law functions, or if the exercises of its function

have public law consequences, then that may…. be sufficient to bring the

body within reach of judicial review. (Quoted in de Smith 1995:181-2)”

The approach, based on the type of power and its consequences rather than its sources, is

commendable and provides another potential area for judicial creativity by our courts in

appropriate cases. In several cases involving the power of the National Housing

Corporation, until recently a monopolistic land lord, to raise rents and evict without court

orders, the court of appeal surprisingly has been very reluctant to exercise its supervisory

jurisdiction (see Juthalal Velji v THB and Lausa Alfan Sakum v Minister of Lands &

National Housing Corporation). In the assistant Registrar of Buildings v Frederick G.

Kibwana, the Court of Appeal overruled the decision o the High Court granting certiorari

to squash the decision of the registrar terminating tenancy on the grounds that “certiorari

being a discretionary remedy for the courts to issue, it cannot be issued in this case where

there is already a contractual relationship between the landlord and tenant – a relationship

of a commercial or business nature”. This is surprising because the Registrar of Buildings,

ad now its successor f the National Housing Corporation, is a statutory corporation and has

been exempted from the regulatory scheme of the rent restriction acts. One would have

though that these would have been valid grounds for court to exercise its supervisory

jurisdiction.

I now proceed to another aspect of judicial review where our courts have made a great

contribution in expanding the scope. In his case the grounds, of judicial review.

15

ReasonablenReasonablenReasonablenReasonableness or Right to Reaess or Right to Reaess or Right to Reaess or Right to Reasonssonssonssons

In recent cases the courts have approvingly applied Lord Diplock’s three fold summery of

the grounds for judicial review, that is, illegality, irrationality and procedural impropriety.

This list is not exhaustive and what is more, within each one of the heads there is a

potential for further deepening and broadening of the categories. One of the most

important categories, in my view, is irrationality, which besides capturing the previous

formulation of unreasonableness as a ground for invalidity goes further and makes it almost

obligatory for an administrative body to give reasons for its decision lest it be struck down

for irrationality.

In discussing the security of employment Act 1964, in terms of which a reference may be

made to the minister by a party aggrieved of a decision made by a labour conciliation

board, samatta J. in a leading judgement in Tanzania Air Services v minister of labour held

that the minister ought to give reasons and the past practice as well as judicial authorities

did not place such an obligation on him. As a matter of fact, in Makame, J’s words, the

ministers act was purely ministerial.. Tanzania Air services is undoubtedly a great step

forward it remains to be seen whether other judges will follow suit.

Mean while it must be pointed out that the court o f appeal missed an excellent

opportunity in Mwakibete’s case to lay down authoritatively the right to reasons in

administrative or quasi judicial decision making. That the whole case birth in the court of

appeal and high court proceeded on private law issues such as adminissibility of evidence,

the doctrine of estoppels etc. in the course of its judgment, the court of appeal, speaking,

though Ramadhani J, went so far as to hold that the appellant was entitled, to get a copy of

the report of the commission which had been appointed to investigate him and a s a result

of whose report the president removed the judge from office. Yet, it fell short of holding

that under the circumstances, without the commissions report, the president’s decision to

remove the judge lacked reasons. Therefore it was irrational and hence subject to be

quashed by certiorari.

To be fair it is necessary that the applicant himself who had argued his own case did not

raise grounds for his application for certiorari in this fashion. Perhaps Mwakibete will turn

16

out to be a transitional point between private law and public law approaches in our

jurisprudential history of judicial review.

Judicial Review Procedures and Fundamental RightsJudicial Review Procedures and Fundamental RightsJudicial Review Procedures and Fundamental RightsJudicial Review Procedures and Fundamental Rights

The parliament passed the Basic Rights and Duties enforcement Act 1994, no.33. The Act

provides the procedures for filing applications for breach or apprehended breach of

fundamental rights provided in Articles 12 to 29 of the constitution. Section 4 provides

where a person is alleging an existing or apprehended breach of his fundamental rights, 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.

Section 8(1)b gives powers to the high court( constituted by a bench of three judges under

section 10(1) to hear and determine the application and to make such orders and give

directions as it may consider appropriate for the purposes of enforcing or securing of any

of the provisions of sections 12 to 29 of the constitution.

Three issues have arisen either in academic discourse tangentially on this Act. First

whether the procedure provided in the basic rights act is exclusive. That is to say, whether

other existing ways of approaching the high court to redress ones fundamental rights for

example through judicial review proceedings discussed in this paper, have been jettisoned.

Second, whether the constitutionality of certain acts or provisions cannot be challenged

collaterally in other proceedings. Thirdly whether under the basic rights Act the court is

barred from granting remedies in the nature of prerogative orders such as certiorari,

mandamus etc. in view of the provisions of section 8(4)

In answering these issues it must be kept in mind that the basic rights act must be read

together with Article 30(3) which stipulates the rights of access to the High Court where a

person alleges a breach of his fundamental rights. The Basic Rights Act is to facilitate

access to court and not to obstruct it. Therefore, it should be construed purposively to

achieve that overriding objective.

In the light of this premise, the first question is relatively easy to answer. The remedies that

can be granted by the high court in constitutional cases is wide and its list closed. What is

17

important is to grant an appropriate remedy that would redress the wrong adequately. As a

matter of fact in other jurisdictions, the court has gone very far to forge new remedies.

There are ample authorities on this. This means that under section 8 the High Court can

grant any appropriate remedy, including order s in the nature of certiorari o r mandamus,

without being bound by the procedures stipulated in Part VII of the Law Reform Fatal

Accidents Ordinance Cap 360. If, as has now been settled by the court of appeal, certiorari,

a court ought not to feel constrained to do in a constitutional matter. So section 8(4), in my

view is facilitative rather than obstructive.

Secondly, I would suggest that the existing methods and ways, including collateral, of raising

constitutional challenges have not been excluded by basic rights Act provided the matter is

before the High Court. Any other reading of the provisions of the basic rights Act provides

an exclusive procedure for vindicating fundamental rights for the simple reason that the

Basic Rights Act covers only Articles 12 to 29 of the constitution. It cannot possibly be the

intendment of the Parliament to provide an exclusive procedure for Articles 12 to 29 while

other constitutional provisions can be interpreted by the High Court under other

procedures.

Thirdly, constitutional matters including breaches of basic rights can still be raised through

judicial review procedure for two reasons. It is now established that an introduction of a bill

of rights expands, not contracts the scope of already rights and remedies whether their

source is s statutory or common law. Since access to court was already available through

judicial review, it cannot be whittled down by the provision of a bill of rights in the

constitution. The second reason is the section 17A(2) of the law Reform (Fatal Accidents)

ordinance provides that no proceeding involving the interpretation of the constitution with

regards to the basic freedoms can be commended or continued without summoning the

Attorney General. This provision which has not been repealed following the Basic Rights

Act, assumes that it is possible to raise constitutional matters in proceedings other than

those initiated under the Basic Rights Act.

In this however, my interpretation runs counter to Mackanjia J’s decision in NMC v Hamis

Juma in which he held that the constitutionality of a statute cannot be assailed in an

18

application for prerogative orders. With respect, it is submitted that the decision in per

incurium because the court never had the opportunity to consider the various arguments

and decided authorities in the matter. Be that as it may, the point I want to make is that

judicial review, which is a very important part of the High Courts jurisdiction, would be the

poorer if the judges held that they did and do not have the power to hear and determine

breaches of the constitution, including those of fundamental rights in judicial review

proceedings. Such a position would lead to absurd results. To give only two examples;

The principles of natural justice constitute one of the most important grounds of an

application for judicial review. These principles are also now codified, so to speak in article

13(6) of the constitution. Could it be argued therefore that, a single high court judge

couldn’t entertain an application for judicial review on grounds of breach of the principles

of natural justice because that would involve considering the provisions of Article 13(6) of

the constitution? The answer to that rhetorical question is obviously in the negative. A

single judge constitutes the High Court. It derives its jurisdiction to entertain applications

for judicial review as well as constitutional matters, as already argued from the constitution,

the basic rights Act, an ordinary Act of parliament can not take away that jurisdiction.

Take another example, an application for the writ of habeas corpus has for centuries been

the revered method of challenging illegal detention or protecting the right of an individual

to liberty, which is entrenched in our constitution. In Tanzania, the procedure for habeas

corpus is applications is governed by the Criminal procedure for habeas corpus

applications is governed by the Criminal Procedure Act, 1985 (No.9) and habeas corpus

rules made there under. Does the basic rights Act imply that habeas Corpus procedure is

no longer available to an aggrieved party who wants to challenge the constitutionality and

legality of his detention because that would involve invoking provisions of the bill of rights?

Again, in my submission, there was no such intendment behind the Basic rights Act.

Asking these questions is sufficient to raise a hope that in an appropriate case the Court of

Appeal is likely to restore judicial review, including the writ of habeas corpus, as available

procedures ( additional to those in the basic rights Act) for redressing constitutional wrongs

and protecting constitutional rights and freedoms.