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JUDICIAL REVIEW IN TANZANIA:


PROBLEMS AND PROSPECTS

This paper examines some problems encountered by the High Court of Tanzania in
the exercise of its powers of review of administrative action. The problems are
reviewed for their peculiar character and also in the hope of putting the record
straight.

A significant share of the blame for some problems lies in the facts that judicial
review as imported into Tanzania derives from a foreign philosophy, it having
evolved in the context of English feudal and capitalist constitutional developments.1
It is therefore desirable and necessary that we preface our observations with a
sketch of the origin and scope of judicial review.

Since the paper is devoted to problems, the picture portrayed is not necessarily a
happy one, nevertheless, it might still be possible to see light at the end of the
tunnel. For obvious reasons free use is made of illustrations from inside and outside
Tanzania.

PART ONE
ORIGINS AND SCOPE OF JUDICIAL REVIEW

Judicial review may be defined as the assumption by the court of supervisory


jurisdiction over the exercise of powers by inferior tribunals, administrative bodies,
government departments and individual officers in executive positions. It proceeds
on the premise that those vested with the duty to decide over the rights of citizens
ha an obligation to act within the bounds of the law and to be guided by the rules of

1
Judicial review is also to be found in one form or another in socialist jurisdictions. In the Soviet Union
this is constitutionally guaranteed. Art. 58 of the 1977 Constitution of the USSR provides:

Citizens of the USSR have the right to lodge a complaint against the action of officials,
state bodies and public bodies … Actions by officials that contravene the law or exceed
their powers, and infringe the rights of citizens, may be appealed against in a court in
the manner prescribed by law. Citizens of the USSR have the right to compensation for
damage resulting from unlawful actions by state organs and public organizations, or by
the officials in the performance of their duties.

See Legislative Acts of the USSR, 1977 – 1979, Moscow, Progress Publishers, 1981, p. 43. See
also David R. and Brierley, J.E.C., Major Legal Systems in the World Today, London: Stevens &
Sons, 1985, p. 286.
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natural justice, and it also presupposes the right of individuals of access to the courts
whenever their rights are encroached upon.

It is impossible to indicate with certainty the origin of judicial review but English
experience suggests that it was the result of protracted constitutional struggles
between King, Parliament and the common law courts. Inspired by regal dignity
English monarchs assumed certain prerogatives, including the prerogative of being
the fountain of justice, by which it was meant that the king was the distributor of
justice.2 The early Stuart took this literally and endeavoured to withdrew matters of
state from the courts of common law, in particular by the writ of de non
procedendo rge inconsulto, and enforced their will primarily through the medium
of their prerogative courts in which substantive and procedural rules unknown to the
common law were applied.3 The common law consisted of those rules of English
customary law that found general application in the English society. The application
by the King’s prerogative courts of rules and principles unknown to the common law
meant not only that the latter was being superceded but also amounted to a
usurpation of the parliamentary prerogative.

The intensity of the struggle derived from the fact that the influence of the common
law had from the earliest times permitted the local courts and the local communities,
which by the thirteenth century were semi-independent.4 The common law had
defined spheres of jurisdiction of the local courts, controlled the exercise of
jurisdiction and rendered a regular procedure and uniformity of the rules an absolute
necessity.5 Hence, proceedings instituted in borough courts were removable into the
king’s courts at Westminster. In the common law thus were to be found the basics of
judicial review, which were to develop with the development of that law.

This development, however, could not be fully realised while the King’s prerogative
courts like the Star Chamber continued to exercise jurisdiction and while monarchs
still claimed to be the fountain of justice, in short to deny the independence and
superiority of the common law courts. The common lawyers hence joined in alliance
with parliamentarians, who were in struggle with the King’s Council that issued

2
I Bl. Com. 266.
3
De Smith, S.A. Judicial Review of Administrative Action, London: Stevens & Sons, 1980, p. 5.
4
Generally see Holdsworth, W., A History of English Law, Vol. 2, London: Methuan & Co., 1936, pp. 395-
405.
5
Ibid., p. 396.
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Proclamations, to bring about the downfall of the Star Chamber and other
prerogative tribunals in 1640. This historical event was precipitated in large measure
by the endeavours of James I to re-exert unquestioned and absolute kingly power,
with support from the Archbishop of Canterbury. In Blackstone’s characteristic
language:

The people heard with astonishment doctrines preached from the


thrones and the pulpit, subversive of liberty and property, and all the
natural rights of humanity. They examined into the divinity of the
claim, and found it weekly and fallaciously supported, and common
reason assured them, that, if it were of human origin, no constitution
could establish it without power of revocation, no precedent could
sanctify, no length of time could conform it.6

With Edward Coke as Chief Justice the endeavours of James I were not destined to
succeed. Already by 1611 the Court of King’s Bench could hold that “the King has no
prerogative but what the law of the land allows him”, and to affirm that the law of
the land meant the law as interpreted by the ordinary courts.7 The exercise of the
royal prerogative was thus progressively curtailed, the curtailment becoming
effective with the event of 1640.

With the abolition of the prerogative courts in 1640 the common law courts took over
the jurisdiction to issue prerogative writs. The writs were now issued in defence of
individual rights rather than to enforce royal privilege. It was hence in the course of
the seventeenth century that the prerogative writs of certiorari, mandamus and
prohibition came to be finally established as issuing from the Court of King’s Bench.8
The modern writ of mandamus is associated with Bagg’s Case,9 in which the mayor
of Plymouth was commanded to restore Bagg to his office. Certiorari which had been
in common use from about 1250 assumed new importance in the middle of this
century with the vast increase of the duties of justices of the peace. These justices
were vested by parliament with extensive criminal and administrative powers but

6
4 Bl. Co.m 436
7
Case of Proclamations (1611) 12 Co. Rep. 74, 76. See also Wade, E.C.S. and Phillips, C.C.,
Constitutional Law, London: Longmans, Green & Co. 1958, p. 33.
8
They were termed “prerogative” because they were conceived as being intimately connected with the
rights of the Crown (see de Smith, o. cit., p. 584). Blackstone says, “By the word prerogative we
usually understand that special pre-eminence, which the kind hath, over and above all other persons,
and out of the ordinary course of the common law, in rights of his regal dignity. It signifies something
that is required or demanded before, or in preference to, all others. And hence it follows … that it can
only be applied to those rights and capacities which the king enjoys alone” (1 Bl. Com. 239). It is in the
18th century that the term is found collectively used for the three writs and babeas corpus by Mansfield
in R. v. Cowle (1759) 2 Burr. 834, 855 – 856.
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owing to the low degree of central government control the question son arose as by
what means their decisions were to be subjected to review. The Court of King’s
Bench finally committed itself to the proposition that the appropriate remedy was a
writ of certiorari to quash their decisions.

In the course of the seventeenth century a distinction also gradually came to be


drawn between acts done without jurisdiction against which certiorari could issue and
acts done within jurisdiction which were immune from the reach of certiorari unless
an error was apparent on the face of the record. By the beginning of the eighteenth
century the Court of King’s Bench could declare that it would “examine the
proceedings of all jurisdictions erected by Act of parliament … to the end that … they
keep themselves within their jurisdiction.” 10

The constitutional struggles of the seventeenth century had also earned the Court of
King’s Bench and the superior judges considerable esteem and especially so after the
Act of Settlement of 1701 which ensured their independence of the Executive.
Additionally, the Court of King’s bench derived esteem from the fact that it was not
fixed at any place but followed the King’s person wherever he went, in effect taking
justice to the people. In the middle of the eighteenth century Blackstone could
summarise the position thus:

The jurisdiction of this court is very high and transcendent. It keeps


all inferior jurisdictions within the bounds of their authority, and may
either remove their proceedings to be determined here, or prohibit
their progress below. It superintends all civil corporations in the
Kingdom. It commands magistrates and others to do what their duty
requires, in every case where there is no specific remedy. It protects
the liberty of the subject by the speedy and summary interposition.11

In the course of the nineteenth century the importance of judicial review was
enhanced by the emergency of elected local government authorities which were
vested with considerable regulatory powers over persons and property. Very
frequently Parliament provided a statutory method of challenging the decisions of
these authorities by way of certiorari. This encouraged the courts to take the view
that common law certiorari and prohibition could properly issue to other authorities

9
(1611) 11 Co. Rep. 936.
10
R. v. Glamorganshshire Inhabitants (1700) 1 Id. Rayam, 580.
11
3 Bl. Com. 42.
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discharging similar functions where parliament had made no express provisions for a
method of challenge.12 But the nineteenth century also saw the rise of capitalism in
England and this made the prerogative writs of prime importance in the protection of
private enterprise. Much of the litigation therefore turned on business licensing and
opposition to planning schemes that were considered inimical to capitalist interests.

Above all, considerable merit came to be associated with judicial review through the
determined efforts of theoreticians like Dicey who did everything to debase the
French system under the droit administratif. Dicey13 criticized the administrative
jurisdiction vested in the French Counseil d’Estat which he stigmatized as being
opposed to the rule of law that pervaded the British constitution. He implied that the
droit administratif was discriminatory as it drew a distinction between the law
governing relations between citizens and that governing the relation of the
government and its officers towards private citizens. He observed that judges had
no jurisdiction in matters concerning the State and that the French system was
fraught with conflicts of jurisdiction. He reserved special remarks for the apparent
inviolability of the Executive and said that the “most despotic characteristic of droit
administratif lies in its tendency to protect from the supervision or control of the
ordinary law courts any servant of the state who is guilty of an act, however illegal,
whilst acting in bona fide obedience to the orders of the superiors and, as far as
intention goes, in the mere discharge of his official duties.”14

Armed with such arguments and having an accumulation of precedents to go by,


English courts no longer confined themselves to the review of judicial decisions in the
strict sense but moved a step further to held that even orders of central government
departments were amenable to certiorari and prohibition. As de Smith observes,
“The question whether writs would issue in any particular case had come to be
determined by reference to the character of the act or decision that was impugned
and not merely by reference to the general character of the body that had acted or
decided. If the act or decision was of a judicial character, its validity could be
challenged by certiorari or prohibition.”15

12
De Smith, op. cit. pp. 382-383. See also R. v. Arkwright (1848) 12 Q.B. 960.
13
See Law of the Constitution, London: Macmillan & Co., 1939, pp. 339 – 348.
14
Ibid., p. 346.
15
De Smith, op ci.t. 383.
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By the beginning of this century, therefore, it was settled that certiorari would issue
to a body which would not ordinarily be called a court, nor would its acts ordinarily
be termed “judicial acts’, but the term “judicial act” was to be used in contract with
purely ministerial acts, and that in general a judicial act was one which involved the
exercise of some right or duty to decide a question affecting individual rights.16 By
this time also the prerogative writs were well established instruments of capitalist
aspirations and were not infrequently used to thwart or delay government efforts in
providing social services that impinged on capitalist interests. In R. v. Electricity
Commissioners, ex p. London Electricity Joint Committee,17 a writ of
prohibition was granted to prevent the holding of an inquiry prior to the drawing up a
scheme for the supply of electricity in the districts, it being argued that the inquiry
was ultra vires as the proposed scheme would have affected the rights of private
electricity suppliers.

In 1932 the Committee on Minister’s Powers thought it sufficient to condemn as


“inconsistent with … the supremacy of law” a proposal to take away the existing
supervisory and appellate jurisdiction of the High Court and to vest it in new and
distinct administrative courts.18 In 1938 the prerogative writs were redesigned as
orders,19 but this was a change of form rather than substance.

In Tanzania the power of the High Court to grant writs of certiorari, prohibition and
mandamus derived from the Criminal Procedure Code, the English Common Law and,
with mandamus, from the statutes of general application as well. Article 17(2) of the
Tanganyika Order in Council, 1920 empowered the court to exercise civil and
criminal jurisdiction, inter alia, “in conformity with the substance of common law, the
doctrines of equity and the statutes of general application in force in England” on the
date of the Order in Council, i.e. July 22, 1920.20 The Statute of general application
appears to be the Common Law Procedure Act, 1854, sections 68 to 74 of which
provided that a writ of mandamus could be claimed by way of action. In Yusufu
21
Mutenda v. Zakaliya Mugnyiasoka, a Ugandan case, Lewis, J. pointed out that
“this was interpreted to mean that where a breach of duty gives rise to a right of

16
See R. v. Woodhouse (1906) 2 K.B. 501
17
(1924) 1 K.B. 171.
18
De Smith, op. cit. p.6.
19
See s. 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938.
20
Now see 2(2) of the Judicature and Application of Laws Ordinance (Cap. 453).
21
(1957) E.A. 391.
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action, the court which tries the action was to have power to do complete justice by
granting mandamus as an ancillary remedy, but if there was no right of action the
remedy must still be by prerogative writ.” The Common Law Procedure Act, 1854 is
no longer law in England, it having been repealed by the Administration of Justice
(Miscellaneous Provisions) Act, 1958. But it is one of the ironies of colonial history
that the Act is still law in Tanzania. Thirty years after England, Tanzania also
abolished prerogative writs and replaced them with orders.22 This change was
similarly one of form rather than substance,23 and the legislative did not go further to
provide for rules of procedure.

In summary, judicial review is now available in a variety of circumstances. The


courts may award relief where an administrative body or person has acted ultra
vires, i.e. without jurisdiction or, if acting within jurisdiction, has exceeded the limits
of its authority. In such a case certiorari will be granted to quash the act or decision
complained of with a direction that the body r person acts according to the law.
Prohibition will also issue to prevent a body or person from exceeding its authority.
Mandamus will issue to compel the performance of a public duty where performance
has been refused or unreasonably delayed.

A statutory discretion will also be held to have been invalidly exercised if its
repository acts in bad faith, or has acted in breach of the rules of natural justice, or
has been actuated by improper motives, or has taken into consideration matters
extraneous to the issue, or has failed to consider matters. The court will also
intervene where the act or decision has proceeded on a material error of law or in
the face of a breach of procedural obligations or, according to Denning, M.R., where
24
“any act or thing (has been done) which calls for the intervention of the court.”
With this background, it is opportune to proceed to the substance of the paper.

22
See the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (Amendment) Act, 1968.
23
See Timothy Mwakilasa v. The Principal Secretary (Treasury), 1978 LRT n. 38.
24
R. v. Criminal Injuries Compensation Board, ex p. Tong (1976) 1 W.L.R. 1237, 1242
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PART TWO
PROBLEMS AND PROSPECTS

Problems of Procedure

It has just been pointed out that in Tanzania provision has not been made for the
procedure to be adopted in applying for orders. it will presently transpire that
applicants have shown persistent uncertainty as to the appropriate order to apply
for, but even where the appropriate order is sought problems have arisen as to the
appropriate procedure.

In Timothy Mwakilasa v. The Principal Secretary (Treasury),25 the applicant


applied for mandamus to compel the respondent to release his pension and the
application was brought under section 349 of the Criminal Procedure Code (Cap. 20).
The section provided that “The High Court may in the exercise of its criminal
jurisdiction issue any writ which may be issued by the High Court of Judicature in
England.”26 Admittedly, “any writ” covered mandamus, but as far as the ruling on
the application suggests there was no criminal background thereto to justify the
course taken by the applicant. Unfortunately, the application was disposed of on
other grounds, Samatta, J. having decided to deny himself the opportunity of
expressing any view as to whether the application was properly brought under
section 349. We venture to suggest that in the absence of specific provisions in that
behalf, the application could have been brought under section 95 of the Civil
Procedure Code, 1966 which saves the inherent power of the court to make any
orders as may be necessary for the ends of justice.

The above case, however, is significant in another aspect. The application was made
without leave having been obtained and it was on this ground that it was dismissed.
Samatta, J. was uncertain whether the application was competent in the absence of
prior leave and, being handicapped by the extremely poor library at Mbeya, he took
a leaf from D.C. Kiambu v. R., ex p. Ethan Njau27 in which Gould, J.A. made
allusions to leave to apply being obtained before the crown was joined in mandamus
proceedings. Samatta, J. said;

25
1978 LRT n. 38.
26
Now see s. 391 of the Criminal Procedure Act, 1985.
27
(1960) E.A. 109.
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I recognise, of course, the desirability of making proceedings before


courts as simple and as short as possible, but I think I should follow at
a respectable distance behind the learned Justice of Appeal and hold
that his observation, obiter dictum as it was, represents also the
practice which ought to be followed in this country.

In similar circumstances Maganga, J. held in Alfred Lakarau v. Town Director,


Arusha28 that leave to apply was mandatory where mandamus and other orders
were sought. In this case the applicant sought mandamus to compel the respondent
to restore to him a stall in the Arusha Central market from which he had allegedly
been illegally evicted. The application was brought without prior leave to apply. In
holding that leave to apply was mandatory Maganga, J. relied on a passage on pp.
70-71 of Halsburry’s Laws, Vol. II, 3rd ed., which states:

No application can be made unless leave therefor has been granted.


Application for leave is made ex-parte to … a judge in chambers, and
must be accompanied by a statement setting out the name and
description of the applicant, the relief sought and the grounds on
which it is sought, and by affidavits verifying the facts relied on.

The learned judge did not realize that this passage was based on the provisions of
Ord. 59 of the English Rules of the Supreme Court which were made under the
Administration of Justice (Miscellaneous Provisions) Act, 1938. That enactment is
not a statute of general application in Tanzania, if having been enacted after July 22,
1920. It follows that the rules made thereunder have no application in Tanzania.

The difficulties and dilemma faced by the learned judges in the above applications
would have been avoided if their intention had been drawn to D.M.T. Company Ltd.
v. The Transport Licensing Authority.29 In that case the trial judge had similarly
proceeded under Ord. 59 of the English rules. The Court of Appeal, although
upholding the decision on other grounds, took opportunity to point out that “It was
not correct to apply Ord. 59. That order was made in 1938. The English practice and
procedure which was imported into Tanganyika … was the practice and procedure
obtaining in England … (on) July 22, 1920.” This practice and procedure, the Court
said, was to be found in rule 21 and rule 30 of the Crown Office Rules, 1906. It is

28
(1980) TLR 326
29
(1959) E.A. 403.
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more than necessary to set out the relevant parts of these rules.30

21. No writ of certiorari shall be granted, issued or allowed to


remove any judgment, order, conviction, or other proceeding
had or made by or before any justice or justices of the peace of
any country, city, borough, town corporate, or liberty, or the
respective general or quarter sessions thereof, unless such writ
of certiorari be applied for within six calendar months next after
such judgement, order, conviction, or other proceeding shall be
so had or made …

30. The provisions of the foregoing rule 20, rule 21, rule 22, rule
23, rule 24 and rule 27, as far as they may be applicable, shall
apply to the removal of all other orders and proceedings,
which may be subject to removal by certiorari into the King’s
Bench Division for the purpose of being quashed.

These rules specifically refer to certiorari but they have equal application to
prohibition and mandamus since a single application may embody all the three. It
will now be noted that the rules do not make any reference to leave to apply. In
Tanzania, therefore, there is no obligation to obtain leave before making an
application for certiorari, madams or prohibition. In the light of this, we submit that
the applications in Timothy Mwakilasa and Alfred Lakarau were wrongly
dismissed on the ground of absence of leave to apply.

It is not intended to suggest that leave to apply, although not mandatory, is not
without advantages. It has to be borne in mind that the orders are discretionary and
would only issue where certain condition exists. Certiorari will not issue unless
something has been done that a court can quash. Prohibition will not lie unless
something remains to be done that a court can prohibit. Mandamus will as a general
rule not issue where there is another statutory remedy, equally convenient and
beneficial, and unless performance has been demanded and refused. In those
circumstances leave to apply becomes of crucial importance as it would enable the
court to determine whether there is a case worth going into. On the other hand,
absence of the requirement for leave to apply may result in the court being
inundated with unmeritorious challenges to administrative decisions. In fact the
Alfred Lakarau application was such a case. The applicant had no legal right to
enforce since he had been trading with an expired licence. The application was also
not honestly made for the applicant was aware of that fact. There was equally no

30
Quoted by the Court from Short and Mellor, The Practice of the Crown Office, 2nd ed. Pp. 50 and 66.
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possibility of performance for the respondent could not restore a stall to a person
trading illegally. In the final analysis the court would have dismissed the application
even if the applicant had followed the procedure indicated by the court.

Practice and procedure is thus a crucial matter in these applications and the debate
thereon accompanies almost every application. The problem is that the applicable
rules are unknown and cannot be easily found. And as can be seen from the
quotations they are archaic and unrelated to the judicial and administrative set up in
Tanzania. It would be everybody’s advantage if local rules were made taking into
consideration the circumstances and aspirations of the country.31 But until that is
done, we see no anomaly in applications being preceded with or without leave to
apply for the Crown Office Rules do not appear either to sanction or to prohibit any
preliminary procedure.

Problems of Substances

In juridical review the applicant must only adopt the proper procedure but must also
have an interest, i.e. locus standi, in the subject matter of the application. This
rule is dictated by practical reasons for whereas every citizen is entitled to participate
in the enforcement of the law, it is certainly undesirable to encourage the
professional litigant and the meddlesome interloper to invoke the jurisdiction of the
courts in matter that do not concern him. As Lord Denning said in R. v. Paddington
Valuation Officer, ex p. Peachy Property Corpn. Ltd.,32 the court “would not
listen to a mere busybody who was interfering in things that did not concern him.”
Instances do arise in Tanzania where apparent busybodies and interlopers seek to
move the High Court in matters that do not concern them. Perhaps the most recent
instance of this kind is provided by Re: An Application by Abdallah Amuri
Suleiman & Ors,33 which it is proposed to use for illustration.

In that case the applicants, purporting to be the registered trustees of the Masjid
Quba and Islamic Centre, applied for certiorari, mandamus and prohibition against

31
It seems that both Kenya and Uganda have rules somehow bearing on this subject. For Kenya see the
Civil Procedure (Revised) Rules, 1948, Ord. 53, r.1 and Farmers Bus Services v. The Transport
Licensing Appeal Tribunal (1959) E.A. 779; for Uganda see the Law Reform (Miscellaneous
Provisions) (Rules of Court) Rules, 1964, r. 5(1) and Masaka Growers v. Munpiwakoma Growers
(1968) E.A. 258.
32
(1966) 1 Q.B. 380, 401.
33
Dar es Salaam Misc. Civil Cause No. 25 of 1986 (unreported).
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the Minister of Education, the National Muslim Council of Tanzania (BAKWATA) and
one Burhani Mtengwa, apparently to quash the Minister’s decision refusing to register
a school pursuant to an application by the Tanzania Muslim Solidarity Trust Fund and
to compel the Minister to register the school as applied for by the Trust Fund. It is
not clear what prohibition was being sought for. In these proceedings the applicants
purported to act for the Trust Fund but they had no authority from the latter to act
on their behalf. Dismissing the application Msumi, J. stated, inter alia, “It is quite
possible that the Trust is quite satisfied with the decision of the Minister and
considers itself disqualified from such registration. The applicants cannot claim to
express the wish of the Trust as they have no legal mandate to do so.”

To have an interest in the subject matter of an application is to be the aggrieved


party as understood in administrative law. One searches in vain to discover how the
applicants were an aggrieved party. For the purpose of locus standi the applicants
did not of course need to have been parties to the application that was refused by
the Minister. It seems that a person would be sufficiently aggrieved, and would have
locus standi, if he is one whose legal rights have been infringed or who has a
substantial interest in impugning an order. In that event certiorari maybe awarded
ex debito justitine if he can establish any of the recognised grounds for granting
the order. It is otherwise in higher exceptional circumstances that the court would
exercise its discretion in favour of an applicant who was not a person aggrieved.34

In the instant case there was in fact no effort to show what interest the applicants
had in impugning the Minister’s decision. To emphasis the frivolity of the whole
exercise their counsel veered to say that the applicants actually wanted the school
registered under the body corporate they purported to represent. In fact at the time
of making the Application no trustees had been incorporated for the Masjid Quba and
Islamic Centre.

This was indeed a case of busybodies, at least given the way the application as
brought. The applicants’ interest was not apparent and its existence was made the
more dubious when the application as made for a third party rather than for
themselves. It has been held that if it appears that the application for mandamus is

34
De Smith, op. cit. p. 418.
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really on behalf of some third party the order will be refused.35 But in cases of this
kind, and in the context of Tanzania, it would not be entirely fair to blame the
applicants for this sort of situation. The application as prepared and presented by an
advocate who ought to have known better. The fact that unregistered trustees could
not pas off as such or that they could not make an application for a person or body
other than themselves were matters which should have been obvious to learned
counsel. In contemplating the prospects of judicial review in Tanzania, therefore, one
has also to have regard to the calibre and seriousness of those on whom the burden
lies.

Another instance in this family arises from the case of Lucas Matafu v. M.M.
Songambele.36 The applicant operated a bar in Shinyanga Township and the
respondent was at the time the Shinyanga Regional Commissioner. For reasons
unknown and irrelevant here the respondent closed the bar. The applicant then
sought for an injunction “requiring the respondent to re-open the bar and releasing
rentals” to him. Not unexpectedly, Mfalila, J. remarked: “Now, an injunction means
simply a judicial order to restrain … (It) is necessarily a negative order … requiring
an individual not to do what he proposes to do … In the instant case the applicant is
seeking this court to issue a temporary injunction requiring the respondent to re-
open the bar … I do not know how such an injunction order could possibly be
frame.” An advocate similarly represented the applicant.

In this case a wrong remedy was being sought. Learned counsel must of course
have heard something about certiorari and mandamus but his impressions of them
did not evoke any affinity with the facts of the case. But how he expected an
injunction to issue in the circumstances does not show that he was conversant with
that remedy either. To make it worse, the application was brought against the
respondent in his personal capacity, but it was common ground that the respondent
acted in purported exercise of his governmental powers. Even if injunction could do
the miracle of compelling the performance of a public duty, it is not possible to see
how a private Songambele could have assumed the duties of a Regional
Commissioner. We submit that the application was truly misconceived and a
wastage of time and resources.

35
See R. v. Brecknock & Abergavenny Canal (1835) 2 Ad. & El. 217, 224.
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A stage further there is the general problem of the courts’ attitude to the
reviewability of executive acts and decisions. Traditionally, the attitude was to
classify functions as judicial, quasi-judicial and administrative, sometimes termed
executive or ministerial. In the classical sense a judicial function was conceived in
the context of lis inter partes, that is, the existence of a contest between two sides
involving the weighing of contending evidence. Such conception underlies the
decision in R. v. London C.C. ex p. Entertainment Protection Association37
where it was held that certiorari could issue because the London County Council was
a body exercising judicial functions “in the sense that it has to decide on evidence
between a proposal and an opposition.”

It was conceived, on the other hand, that a discretion purely executive in character
was not amenable to judicial review if exercised in good faith. This view proceeded
on the strict interpretation of subjectively worded clauses whereby a Minister or
some other executive was empowered to do an act or make a decision “if he is
satisfied” or “if he has reasonable cause to believe” in the existence of a certain state
of affairs. Hence, in Livereidge v. Anderson38 it was held that where the Secretary
of state, acting in good faith, makes an order in which he purports to act on
reasonable causes, a court of law cannot inquire whether in fact he had reasonable
grounds for his belief, the matter being one for the executive discretion. In the later
case of Nakkuda Ali v. Jayaratne39 the Privy Council indeed observed that
Liversidge’s case did not lay down a general rule on the construction of the phrase
“has reasonable cause to believe,” and stated that such phrases must be intended to
serve in some sense as a condition limiting the exercise of an otherwise arbitrary
power. Yet it went on to hold that the exercise of a discretion by a government
controller to cancel a licence if he had “reasonable grounds to believe” that the
holder was unfit to be allowed to continue to hold one was an executive action
against which certiorari could not issue.

More recently, this tendency to shrink in the face of subjective clauses was
manifested in A.G. v. Lesinoi Ndeinai,40 a case of preventive detention. Under
section 2(1) of the Preventive Detention Act, 1962, a detention order can be made

36
1977 LRT n. 10.
37
(1931) 2 K.B. 215.
38
(1942) A.C. 206.
39
(1951) A.C. 66.
40
(1980) TLR 214.
Judicial Review in Tanzania - 15 -

“where it is shown to the satisfaction of the President” that certain circumstances do


exist is entirely subjective and his decision to detain a person in pursuance thereof
cannot be tested or mentioned in any court unless his order be defective on the face
of it, or is otherwise not in accordance with the law.”

Significantly, however, a shift in attitude has been evident even before Lesinoi
Ndeinai was decided. First, the traditional distinction between juridical and non-
judicial discretion has become conspicuously blurred. As de Smith observes, few
discretionary powers are, on analysis, found to be absolutely unreviewable when
they have a direct impact on private rights and judicial review is conducted by
applying flexible principles of legality in a flexible way.41 In the Paddington
Valuation Officer case (supra) it was held that certiorari could issue to quash the
decision of a valuation officer although the conduct of his business did not involve a
contest between opposing parties. Similarly in Patman Garments Industries Ltd.
v. Tanzania Manufacturers Ltd.,42 the Court of Appeal rejected the distinction
between judicial and non-judicial functions and said that such distinction should be
abandoned.

Secondly, the courts no longer consider subjective clauses per se as having the
effect of ousting their powers of review. It is now settled that even a discretion
subjectively worded has to be exercised in conformity with the principles of natural
justice. In Secretary of State for Education and Science v. Tameside,43
Denning, M.R. said:

To my mind if a statute gives a Minister power to take drastic action if


he is satisfied that a local authority have acted or are proposing to act
improperly or unreasonably, then the Minister should obey all the
elementary rules of fairness before he finds that the local authority are
guilty or before he takes drastic action overruling them. He should give
the party affected notice of the charge of impropriety or
unreasonableness and a fair opportunity of dealing with it.

41
De Smith, op. cit. pp. 296-7.
42
(CA) Civ. App. No. 15 of 1981 (unreported)
43
(1976) 3 All E.R. 665, 671.
Judicial Review in Tanzania - 16 -

When the case went to the House of Lords, Lord Wilberforce said:44

The section (i.e. section 68 of the Education Act, 1944) is framed in a


‘subjective’ form – if the Secretary of State ‘is satisfied’. This form of
section is quite well known, and at first sight might seem to exclude
judicial review. Sections of this form, no doubt, exclude judicial review
on what has become a matter of pure judgement. But I do not think
they go further than that. If a judgement requires, before it can be
made, the existence of some facts, then, although the evaluation of
those facts is for the Secretary of State alone, the court must enquire
whether those facts exist, and have been taken into account, whether
the judgement has been made on a proper self direction to those facts,
whether the judgment has not been made on other facts which ought
not to have taken into account. If these requirements are not met,
then the exercise of judgment, however bona fide it may be, becomes
capable of challenge.

In this connection we think that the remarks of Nyalali, C.J. in Ally Linus & Ors. V.
Tanzania Harbours Authority & Anor.,45 are also relevant. The learned Chief
Justice said:

Apart from the historical origin of certiorari, which we need not go


into, it is clear that the basic structure of the Constitution of this
country vests the judicial power of the state in the judicature, that is,
the judicial arm of the Government. The function of interpreting the
laws of the state is a judicial function and for that reason the judicial
arm of Government has the final word about the meaning of the laws
of this country. That is the objective basis of the supervisory function
of the High Court, which it exercises by certiorari, mandamus and the
like.

In the light of these pronouncements, it is evident that the scope of judicial review
has become almost unlimited. The hallmark of this development is that even purely
administrative decisions are amenable to judicial review. As also indicated in the
passage from the judgement of Lord Wilberforce, the courts are willing even to
scrutine the factual bases upon which discretionary powers have been exercised.

In this context the decision in Northern Tanzania Farmers v. W.H. Shellukindo


46
must be seen as significant. The applicant was a primary cooperative society
based at Arusha while the respondent was the Assistant Registrar of Cooperative
Societies for Arusha region. The exercise of powers which was challenged in the

44
Ibid., pp. 681-2.
45
(CA) Civ. App. No. 2 of 1983 (unreported)
Judicial Review in Tanzania - 17 -

application arose under section 78(2) of the Cooperative Societies Act, 1968 which
stated:

(2) When the registrar has reasonable cause to believe that a


registered society has not commenced, or has ceased to carry on
business, he may, after the expiry of three months from the date of
publishing a notice to that effect in the Gazette, by order in writing,
cancel the registration of such society.

Believing that the applicant and thirty-three other societies had ceased to carry on
business, the respondent caused the publication of General Notice No. 829 of 1977 in
the Gazette of July 8, 1977, intimating his intention to cancel the said societies at
the expiration of three months. The applicant promptly applied for certiorari to
quash the notice on the ground that it had not ceased to carry on business, and that
the respondent’s decision was bad in law.

In a long and impassioned ruling Mwesimo, J. stated that “the present applicant
seeks this court’s order for quashing that notice so that the (applicant) be left in
peace”, adding that “in determining this application, the crucial question is whether
the (applicant) has ceased to function. He answered the question in the negative
after holding what the respondent had acted in breach of the rules of natural justice
by publishing the notice without giving the applicant a hearing. He said, to cite his
own words:

This court feels that since the decision of the Assistant Registrar
touched on the rights of the applicant society to exist, it was imperative
in law to give them a chance to be heard before resorting to such a
drastic measure. There should have been concrete evidence to prove
that the society in question had ceased to exist.

If we understand that passage correctly, the learned judge appears to assert, as he


expressly did elsewhere in his ruling, that the respondent should have carried out an
inquiry of some sort and should have observed the rules of natural justice before he
could appear to have arrived at a reasonable belief of the applicant’s distinction.

It will be noted, through, that the provisions of section 78(2) were subjective in
character. The sub-section did not require the registrar to inform the society

46
1978 LRT n. 37.
Judicial Review in Tanzania - 18 -

concerned that he was contemplating of publishing a notice thereunder; it did not


invite the society to show cause why such notice should not be published; it did not
give any indication of the considerations to be applied by the registrar in arriving at
his belief. By implication, therefore, the judge did not feel inhibited by the subjective
content of the provision in assuming jurisdiction in the matter. If the applicant could
establish prima facie grounds – a matter we are not concerned with here – for the
proposition that the respondent could not have had reasonable cause for his belief,
or that he acted unfairly, or acted right outside his powers, or on an incorrect basis
of fact, it was open to the court to intervene, as it did, with its powers of review.

One can even go further and suggest that the applicant could have applied for
prohibition to prevent the respondent from carrying out the intention indicated in the
notice, without challenging the notice as such, on the ground that he was about to
act in breach of the rules of natural justice. we suggest so having in mind the
implication of the notice. A period of three months had to elapse from the date of the
notice to the natural order of cancellation. Although the Act did not expressly
provide so, the fact that there was to be this allowance of time implied that the
registrar would entertain representations before making the final decision. In the
absence of express provisions, however, whatever hearing there could have been did
not have to assume the strict from a judicial inquiry. As C’Connor, P. said in H.C. de
Souza v. Tanga Town Council,47

If no procedure is laid down, there may be an obvious implication that


some form of inquiry must be made such as will enable the tribunal
fairly to determine the question at issue … In such a case the tribunal
… must do its best to act justly and to reach just ends by just means.
It must act in good faith and fairly listen to both sides. It is not bound,
however, to treat the question as if it were a trial, it need not examine
witnesses; it can obtain information in any way it thinks best.

There were indications in the case that the applicant had endeavoured to make
representations after seeing the notice but the endeavours were brushed aside. If
that was true a case for prohibition could probably have been made out to prevent
the respondent from proceeding in violation of the rules of natural justice.

47
(1961) E.A. 377, 387.
Judicial Review in Tanzania - 19 -

But while the decision is thus significant in the foregoing aspect, there are certain
areas that tend to generate skepticism. One of these areas is that the judge
considered it in the court’s power to decide whether the applicant had in fact ceased
to carry on business. Certiorari and mandamus can only issue to quash an act done
without jurisdiction or in excess of jurisdiction, etc., and to direct the person
concerned to proceed according to law. It is not in the court’s power to substitute its
own decision for that of the person in whom the discretion is vested. In Healey v.
Ministry of Health,48 Parker, L.J. said:

The issue to be decided is whether the Minister having made a


determination, this court has jurisdiction by declaration not to declare
that this determination is null and void or that it should be quashed,
but to make another determination and one in the opposite sense to
that made by the Minister. In my opinion the court has no such
jurisdiction. To hold otherwise would be to invest the court with an
appellate jurisdiction, as opposed to a supervisory jurisdiction, which
certainly has not got.

Admittedly, of course, it is hardly every difficult to read the attitude of the court. But
while the court will quash an exercise of discretion proceeding on an incorrect basis
of fact, it will never do so for holding a different interpretation of the appropriate
facts.

The judge also held that since the applicant had the right of appeal to the Minister
under section 79(1) of the Act, the exercise of that right would have precluded the
intervention of the court since “the Minister’s decision whether for or against the
applicant society would be final and there would be no door open to go to the court.”
Unfortunately, that was a misapprehension of the true position. A right of appeal
does not exclude the right to seek certiorari,49 nor does the Minister’s decision bar
proceedings for the remedy if that decision is in affirmance of an originally invalid
decision.50 In fact the judge was misconstruing the ambit of section 79(4) which
provided that where the Minister confirmed a cancellation order “no further appeal
shall be allowed against such order.” These provisions meant, on a correct
interpretation, that no further appeal was to lie to the Minister against the
cancellation order. They did not purport to oust the court’s supervisory jurisdiction.

48
(1954) 3 All E.R. 449, 454.
49
See for example R. v. Wimbledon J.J., ex p. Derwent (1953) A.B. 380.
Judicial Review in Tanzania - 20 -

Finally, the learned judge made an order quashing General Notice No. 829 of 1977
without any saving. It will be recalled that the notice included 33 other societies, and
these were not parties to the application. To the extent that the order affected these
other societies, it was ultra vires. And in view of what has just transpired, the ruling
is to some extent to be read with caution.

We also desire to consider in this context the limitation to the order of mandamus
where an alternative statutory remedy is available. As a general rule courts will
decline to exercise a discretion in the applicant’s favour if a specific remedy “equally
convenient, beneficial and effectual” is available.51 Conversely, the courts will grant
mandamus where the alternative remedy is not equally convenient, beneficial and
effectual.52

An example where mandamus was refused because there was available an


alternative statutory remedy is found in Moris Onyango v. The Senior
53
Investigation Officer (Customs), Mbeya. The respondent has seized the
applicant’s 55 bags of fish at Tunduma pursuant to the provisions of the East African
Customs and Transfer Tax Management Act (Cap. 27 of the Community Laws). The
applicant sought for mandamus to compel the restoration of the fish, believing the
seizure to be unlawful. Section 159(4) of the Act provided an alternative remedy, in
that the applicant was required to serve a notice of claim on the Commissioner –
General of Customs within one month from the date of seizure. In turn the
Commissioner was required to proceed in accordance with the provisions of section
161(1) to which we shall shortly refer. In fact the applicant had served such notice
at the time of making the application. Samatta, J. dismissed the application
observing that the court will decline to issue the order of mandamus “if there is
another convenient or feasible remedy within the reach of the applicant.”

The natural question is whether in fact the procedure provided for under the Act was
in the circumstance of the case convenient, beneficial and effectual. It will be
observed that the goods involved were fish, a commodity liable to fast destruction if
not disposed off quickly or well preserved. There was no indication of preservation

50
See Ridge v. Baldwin (1964) A.C. 40.
51
R. v. Poplar B.C., exp. L.C.C. (1922) 1 K.B. 72.
52
See for example R. v. Bedwellty U.D.C. (1934) 1 K.B. 333.
53
(1980) TLR 150.
Judicial Review in Tanzania - 21 -

here as the fish were in bags. To appreciate the dilemma of the applicant, therefore,
one has to turn to the pertinent provisions of section 161(1).

(1) Where any notice of claim has been given to the Commissioner-
General in accordance with section 159, the Commissioner-
General may, within a period of two months from the receipt of
such claim, either:-

(a) by notice in writing to the claimant require the claimant


to institute proceedings for the recovery of such thing
within two months of the date of such notice;

(b) or himself institute proceedings for the condemnation of


such thing.

Subsection (2) is also relevant and states:

(2) Where the Commissioner-General fails within such period of


two months either to require the claimant to institute
proceedings, or himself to institute proceedings, in accordance
with sub-section (1), then such thing shall be released to the
claimant.

Under no stretch of imagination can this procedure be said to be equally convenient,


beneficial and effectual, given the commodity concerned. By the time the
Commissioner makes up his mind either to require the claimant to institute
proceedings or to institute them himself, there would be no fish to be restored.
Perhaps more curious is the fact that the Commissioner has no power to consider
and decide the claim served on him but merely to require the claimant to institute
proceedings or to do so himself. The entire exercise is thus meaningless and a waste
of valuable time for a claimant can institute proceedings with or without the
Commissioner’s sanction. Even where no proceedings are instituted by the claimant
or the Commissioner there will hardly be any fish to be released as two months have
to elapse from the date the Commissioner receives the claimant’s notice to the time
a release may be made. The provisions are therefore most inconvenient, unbeneficial
and ineffectual, and actually farcical in the circumstances of the case under
consideration.

The problem of this case does not only lie in the state of the law but, very
substantially, in the manner it was conducted. The court received virtually no
Judicial Review in Tanzania - 22 -

assistance from the applicant’s counsel. He did not tell the court the reason for the
application when a notice had already been served on the Commissioner. In the
judge’s words, he even “made no attempt” to counter the State Attorney’s argument
that the alternative remedy was convenient. In these circumstances, the outcome of
the application is hardly surprising.

Executive Intolerance

Finally, we think that some problems in judicial review in Tanzania can be attributed
to what may be termed executive intolerance. This phenomenon manifests itself in
various ways, the most notorious of which is finality clauses. It is not proposed to go
into that subject here, in particular because it is not peculiar to Tanzania. We have in
mind active interference by the executive organs and officials into and wanton
disregard of the independence of the courts. While this creates the potential for
judicial review it is also a barometer of the popularity of judicial power to the
executive arm of state. The phenomenon will be illustrated with one case, which is a
favorite of many reviewers.

In Re: An Application by Paul Massawe,54 the applicant was arrested on


suspicious of attempting illegality to export goods to Kenya. His lorry and the goods
on board were seized and kept in police custody. He was then charged in a District
Court but was acquitted with an order for the restoration of the lorry and goods.
Subsequent to this, however, the Regional Commissioner, perhaps acting as Regional
Party Secretary, convened a meeting of the Regional Defence and Security
Committee, a body unknown in the country’s laws, which resolved on the sale of the
lorry and goods. This was carried out, not only in direct defiance of the court’s
order, but also notwithstanding a directive from the Prime Minister’s Office to obey
that order. The applicant then applied for mandamus to compel the Regional Police
Commander to release the properties, or probably their value.

The application was allowed and the judge had this to say in the course of doing so:

One of the things that distinguishes Tanzania from other One-Party


States is the independence of the judiciary. Should one now
commence, as did the Honourable Regional Commissioner, to blocking

54
Arusha Misc. Civ. App. no. 21 of 1977 (unreported).
Judicial Review in Tanzania - 23 -

and interfering with court orders which are not to his liking we will, I
am afraid, be sinking to the level of a Banana Republic where judges
can be dismissed at whim and where judgements are written by rulers
… This Regional Commissioner’s act of ordering the Regional Police
Commander, the respondent, to interfere with the court’s lawful order
was clearly ultra vires, illegal and totally unconstitutional.

This case is typical of the injustices that may and have been perpetrated in the
purported exercise of power. Some executives have a distorted view of their
authority and will not hesitate to engage in administrative chaos in the purported
service of the people. Some of them are ignorant, most of all they are arrogant, and
lack the discipline required in socialist construction. Legality and democracy are
inseparable in any political system, regardless of ideology. According to Jawitsch
55
socialist legality presupposes three things, rigorous guarantee of citizen’s rights
and lawful interest, the impressibility of any display of arbitrariness or willfulness of
any kind, especially by officials, an undeviating requirement of exact observance of
the state’s laws by all citizens and organizations; and the performance of all
authoritative and administrative functions in full according with the law. He conceives
it a guarantee of legality and legal order the “independence of the courts and their
subordination only to the law; justice as the highest legal guarantee or citizens’
rights and of the subordination of administrative activity to the law.”56 It is therefore
out of keeping with socialist transformation for public officers to behave as if they
were above the law.

While that sort of aberration is not guaranteed against, it constitutes a great


challenge to the courts. In that context the ruling in Massawe’s case and the robust
attitude behind it deserve admiration.

CONCLUSION

At the very beginning of his work the late Professor de Smith makes these pertinent
observations;

Judicial review of administrative action is invariably sporadic and


peripheral. The administrative process is not, and cannot be, a
succession of justiciable controversies. Public authorities are set up to
govern and administer, and if their every act or decision were to be

55
Jawitsch, L.S. The General Theory of Law, Moscow: Progress Publisher, 1981, p. 243.
56
Ibid., p. 245.
Judicial Review in Tanzania - 24 -

reviewable on unrestricted grounds by an independent judicial body


the business of administration could be brought to a standstill. The
prospect of judicial relief cannot be held out of every person whose
interests maybe adversely affected by administrative action.57

It is ironical that these opening remarks should be the basis of our conclusion. The
explanation is that these remarks serve further to articulate the peculiarity of the
problems encountered in Tanzania in the field of judicial review. In Tanzania the
problem is not indeed the frequency of judicial review or its possible effect on the
machinery of government. Cases of judicial review are far interspersed and for that
reason alone generate a curiosity of some sort whenever they occur. The problems
in Tanzania, as hopefully shown, are basic, arising out of the actual practice of
judicial review. One has to resort to a foreign law to find the rules of procedure and
that law is already interred in the land of its birth. One has to resort to common law
precedents for an answer to a problem borne of Tanzania’s objective conditions, but
the common law bears the imprint of feudalism and free enterprise. It could be
because of these contradictions that appreciation of the subject appears more
theoretical than practical. Executive intolerance, on the other hand, is essentially
subjective and a problem of adjustment. The African tradition did not evolve an
independent and supervisory judiciary.

The problems as we see them are therefore transitory. Given also the determination
of the courts as Massawe’s case demonstrates, there is no cause to fear for the
prospects of judicial review in Tanzania.

57
De Smith, op. cit. p. 3.