Contribution of the judiciary system in potenting the doctrine of the rule of law

DISCLAIMER. THIS ARTICLE WRITTEN BY AN LLB STUDENT, IT MAY HAVE LANGUAGE ERRORS.

INTRODUCTION;

As per the question is concerned, it demands us to show the contribution of the judiciary system in Tanzania in potenting the doctrine of the rule of law, in due course of attempting this question the following shall be included, the meaning of the key terms, the contributions judiciary system in Tanzania in potenting the doctrine of the rule of law, these will base on the accepted elements of the rule of law, which are, Supremacy of the regular law, Equality before the law, Independence of judiciary, Right of access to justice, Rules of natural justice, Separation of powers, also the critics will be involved and conclusion and the bibliography shall mark the end of this work.

MAINBODY;

Democratic state is a form of government in which state-power is held by the majority of citizens within a country or a state.[1] Tanzania is one of the democratic states, this is proved by the Article 8 of the CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977[2] (here in after known as the constitution) as amended from time to time.

Judiciary system; it is the system of law courts that administer justice and constitute the judicial branch of government[3], in Tanzania also judiciary is one of the three organs of the state, it is enshrined under Article 107A (1) of the Constitution. The judiciary in Tanzania has four tiers, the Court of Appeal of the [united republic of Tanzania as per Article 117 of the Constitution, the High Court of the United Republic of Tanzania as per Article 108 and that of Zanzibar as per the part V of the constitution, then resident magistrates and district courts, and primary courts[4].

Rule of law; there no globally accepted definition of the rule of law, this rule is  not the brain child of 18^th c of liberal democratic Europe,  it existed even middle ages, and according to the profounder of this doctrine DICEY[5], rule of law means the fundamental principle of the constitution, which has these meanings,

first, absolute supremacy or predominant of regular law as opposed to the influences of arbitrary power, and excludes the existence of arbitrariness, or prerogatives or even of the wide discretionary authority, on the part of the government …a man may be punished for a breach of law, but he can not be punished for nothing else.

Also it means equality before the law or the equal subjection of all classes to the ordinary of the land administered by the ordinary court, ‘the rule of law” in this sense includes the idea of any exemption of officials or others from the duty of obedience to the law which govern others citizens or from the jurisdiction of the ordinary tribunals, lastly the constitutional principles are the result of decisions of the particular cases.[6]

The doctrine of rule of law in Tanzania, has connection with the introduction of the bills of rights through the fifth constitutional amendment of 1984, According to late justice James Mwalusanya, the rule of law means that, the government shall operate according to the law, and it becomes betrayal of the individuals, if the laws themselves are not fair but are oppressive and degrading, it require the government to be subject to the law and not the law to be subject to the government.[7]

In Tanzania, there is rule of law, since there is there the constitution which may limit what the parliament may legislate, and within the very constitution there are Bills of rights, which provide for the safeguard for individual rights, also the judiciary adhere to the principles of natural justice, judiciary can declare any Act of the parliament invalid, by following the procedures provided under Article 30 of the constitution, also there is the a statute provide for the procedure to enforce the bill of rights which is THE LAW REFORMS (FATAL ACCIDENT AND MISCILLINIOUS PROVISIONS[8]).

It is really acceptable that, in every democratic state like Tanzania, judiciary plays an important role in bringing about parity/ equality which the basic intention of the doctrine of rule of law. The judiciary in Tanzania contributes in potenting the doctrine of rule of law by maintaining the principles of the doctrine, which are, Equality before the law, Independence of judiciary, Right of access to justice, Rules of natural justice, Supremacy of the regular law, and Separation of powers, as it explained here under.

Judiciary and maintenance of equality before the law; this is one of the basic principles of the doctrine of rule of law, which requires that, all subjects of any class are subjected to one law and one court, or all classes in civil society should be treated alike before the law itself and before all law enforcement bodies and agents which are created by law, the law should neither be made to benefit a particular section of the society nor disadvantage another[9]

In Tanzania before the enactment of the bills of rights in 1984, this principle  was not adhered to, this can be proved in the case of HATIMALI ADAMJI V. E.A.POST AND TELECOMMUNICATION CORPARATION,[10] where by

“A Tanzanian of Asian origin was retired in order to facilitate Africanisation in the government sector, he argued that the policy was discriminatory in nature, he failed because he posed his claim based his argument of the rights stipulated in the preamble of the Interim Constitution of 1965.[11]”

 After the enactment of the Bills of rights in 1984, inter alia, the provisions of equality before the law was incorporated in the constitution of 1977, Article 12 provide for equality of all human beings, Article 13 (1) provide for the equality before the law, Article 13(4) prohibits the discrimination of individuals before the law.

Due to this, the judiciary in Tanzania up to now has played a big role to ensure equality before the law, and thus maintaining the doctrine of rule of law; this argument is supported by the following cases.

The court had first begun to fight against the customary laws which are discriminatory in nature, In the case of EPHRAIM V PASTORY AND ANOTHER[12], the court declared that, the Haya customary law of barring female clan member from disposing of land to be discriminatory and inconstency with Article 13(4) of the constitution.

In this case the senior District Magistrate of Muleba MR L.S. Ngonyani did not think that the court were helpless or impotent to help women, he took different stand to help women, hence this maintain the rule of law in sense that, it requires the law to be equal to all people without discrimination.

The court went further to fight against the discrimination on the basis of statute in the case of PHILIMON CHATANDA V R[13] Chuwa J in addressing the problem which arise from the ECONOMIC AND ORGANISED CRIME ACT[14] which provide that

Where a person is charged with the offence of causing loss exceeding 10,000,000 Tsh, to a specified authority such as parastatal organization, in order to get bail then he will have to deposit money to at least half of amounting of  is alleged to have accused,

The court find it that, this law is problematic in sense that, it discriminate between the rich and the poor, this type of legislation goes against the spirit of the constitution and the rule of law which in general requires that, all person should be equally before the law, it also put clear that, any discriminatory law can be declared void for being unconstitutional by filling a petition in the high court under Article 30 (3) of the constitution, hence being a major contribution of the Tanzanian judiciary in bringing about parity and potenting the doctrine of rule of law.

Independence of judiciary; this is one of the fundamental principle of the rule of law[15], which connotes that every Judge or Magistrate as the case may be is free to decide matters brought before him in accordance with his assessment of the fact, and his understanding of the law, without any improper influence, inducement, or pressure direct, or indirect from any quarter or for any reason, since it has been entrusted by the people to administer justice fairy,

There are dimensions of independence of judiciary, these are separation of judiciary from other organs, immunity of judicial officers, insurance of stable personal emoluments, and security of tenure, this dimension helps the judge to uphold the law, and curb the abuse of power.[16]

Recently, there have been the tendency of the executive to interfere the independence of judiciary, but the judiciary has stood strongly to fight against this unbecoming behavior to ensure the rule of law. In the case of R V IDD MTENGULE[17] where the area commissioner send the strong letter to the magistrate asking him to give reasons why he acquitted the accused, but confidentially the magistrate replied to him what he has done is an interference of the judicial independence, and he stood and say what he was doing was correct, since it is not necessary for every accused to be convicted unless otherwise proved.

Also in the case  of HAMIS MASISI and ANOTHER V.R,[18]

Where the magistrate cancelled the bail as the result of the order from regional commissioner of Mara, when the case reached to high court, the learned judge, argued that, he was not suppose to cancel the bail but he could stand strongly and defend the independence of judiciary.

Again in the case of ALL JUU YA WATU V. LOSSELIAN MOLLEL,[19]where the learned judge withdrew from the case, after recognizing that, the file of the case has been withdrawn from his office without his consent, he claimed that, the action was the total harassment and interference of the independence of the judiciary.

Hence based on the cases, they clearly show that, the court is very kin in maintaining the independence of judiciary, thus ensuring equality in dispensing justice, and by so doing it potent the doctrine of the rule of law since the independence of judiciary is one of its principle.

Judiciary and the maintenance of the Right of access to justice;  right of access to justice is a fundamental right and part of rule of law demands that judicial organ should be open to all those whose rights have affected, that is individual who are victims of violative actions by the state officials should be able to challenge such violation in proper for which administer justice freely without fear or favor.

 According to this principle it need the court to be easily accessible , and accessibility interlinked with availability of meaningful and reasonable remedy, also all citizens should be treated equally and fairly,  and no person should be regarded as being above the law even the president[20], Sammatta J, once said

“All government leaders, president inclusive are like the humblest citizens bound to comply, with the law of this country, that maxim the king can do no wrong has no place In our law even if the word president is substituted from the word king, every person, institution or organization in this country is enjoined to pay respect to the principle of supremacy of the law”

It is not doubted that, prior 1994, as per THE GOVERNMENT PROCEEDINGS ACT,[21] it required that, for any person to sue the government, has to seek the permission from the government itself through the Minister responsible or the Attorney General,[22] through this law the person who want to sue the government had to kneel for its permission which could take long time. This went further even where the person wanted to avoid government fiat and sue the government official,  the government was also enjoined on the case, this was the position, in the case of PATRIC MAZIKU V G.A SEBABILI AND 8 OTHERS.[23]

Having not pleased by this mischief the court changed the situation, in the case of PETER NG’OMANGO V GERSON M.K. MWANGWA AND ANOTHER[24] and in the case of KUKUTIA OLE PUMBUN AND ANOTHER V ATTORNEY GENERAL[25]  came to bring parity in the two parties of the United Republic of Tanzania, while in mainland the permission was needed, in Zanzibar, a person could sue the government until a month notice( HAMID MBAYE V BREGADE COMMANDER OF THE NYUKI BRIGATE[26]), as per cases of Ngomango and Pumbun’s case, the court held that

The constitution reorganized the rights of an individual to have a free access to the court for remedy, hence section 6 of the government proceedings Act of 1967, which require a minister’s fiat in order to sue the government infringe the constitutional right of free access to the court for remedy and the Act was not for public interest hence void and unconstitutional.

Hence based on the cases above, it proves that the judiciary in Tanzania is of the opinion that the right of access to justice is maintained, by so doing, it potent the doctrine of the rule of law, since access to justice is one among the aspects of the mentioned doctrine, hence a being a great contribution.

Judiciary and Maintenance of Rules 0f Natural Justice; the rules of natural justice base on fairness and justice in the society, they address how judicial administrative and other organs are to function in the process of reaching a fair decision in determination of issue before them, these rules of fair play in the administration of justice are regarded as universal and rules of the wise. They are integrity party of the doctrine of rule of law, Lord Esher M.R referred to them as indicators of natural sense of what is right and what is wrong.

There are three principles of natural justice, these are, first, the rule against bias(nemo judex in sua causa) which prohibit a man from being  a judge in his own cause, this emanates from the fact that a judge is supposed to decide impartially the matter before , in order to do it successfully, then he should have no direct interest in the subject on enquiry which would lead him to decide the matter in favor of one of the parties, the judge must disqualify himself if he see that the relationship will bring about bias.[27]

The second principle is right to be heard (aud alteram partem) that a person should not be condemned unheard[28], and the third principle is right to know the reasons for the decision(nullum arbitrium sine retionibas).

Rules of natural justice was incorporated in the Constitution of the United Republic of Tanzania  of 1977 in 1984, during the introduction of the bills of rights, Article 13(6)(a) of the Constitution inter alia provides the right to be heard, and to appeal against the decision, this gives the rules of natural justice special status in the Tanzanian legal system, and it is not easy to ignore them.[29]

Due to this, the judiciary has never been silent, when it is clearly identified that this principle is degraded, example in the case of MAHONA V UNIVERSITY OF DAR ES SALAAM.[30]it was held that, there was the breach of rules of natural justice since the appeal was determined without the hearing of the applicant, he went on pointed out that, the rules of natural justice are important and non adherence to these rules renders the decision made null and void.

Also the rule of the wise which requires any body, to adjudicate and make decisions on the matter affecting rights and obligation of the subject after fairy hearing of the parties concerned, to give the reason for its considered and bonifade decision. This was observed by Mwalusanya J. in the case of F.GWAGILO V ATTORNEY GENERAL[31]where it was alleged that, the power of the government to retire civil servant on public interest, need to be supported by the reasons for so doing, similar matter was said in the case of SAID JUMA SHEKIMWERU V ATTORNEY GENERAL.[32]

The judiciary did not end there, but it prolonged up to the learning institution, where the rules of natural justice was much deprived. In the case of NYIRABU GITUNO V BOARD CHAIRMAN, SONGEA BOARD SEC.SCHOOL BOARD.[33]Citing several authority on the importance of right to be heard as an integral part of the rule on natural justice. Samatta J.K granted both certiorari and mandamus quashing the decision of school board; he directed the board to consider the accusation made against the applicant denovo and in accordance with the principle of natural justice.

Also in the cases of MTOKA MTWANGI V. DAR ES SAALAAM TECHNICAL COLLEGE[34], SIMONI MANYAKI V EXECUTIVE OF COMMITTEE OF IFM, and FELIX BUSHAIJA V IDM MZUMBE, in these cases the court held that the decisions to expel the applicants were vitiated by the failure to observe rule of natural justice.

This proves that the judiciary, is playing a fair game in ensuring the that, the doctrine of rule of law is protected by protecting its basic principles, rule of natural justice being one, hence a major contribution.

Judiciary and maintenance of the Supremacy of the regular law; this is one among the prerequisites of the doctrine of rule of law, in which it requires absolute supremacy or predominant of regular law as opposed to the influences of arbitrary power, in Tanzania the predominance regular law is the CONSTITUTITUON OF THE UNITED OF TANZANIA of 1977 as amended from time to time, this is as per Article 64(5) of this constitution, and Article 4 of the constitution of Zanzibar,[35] which declare the supremacy of the constitution and expressly stipulates that any law contrary to the constitution shall be null and void.

In order to ensure equality and justice as per the needs of the doctrine of the rule of law, the basic law of the land must be respected, in so doing the Tanzanian judiciary has maintained this by using the power conferred to it by the constitution, as per Article 107B, to declare any statute null and void, which will appear to be contrary to the provisions of the constitution, this can be proved in the case of JULIUS ISHENGOMA NDYANABO v. THE A.G[36] , where by, Section 111(2) of the ELECTION ACT[37] was declared null and void for being unconstitutional.

In the case of A.G V LOHAY AKOONAY AND JOSEPH LOHAY,[38] it was Cleary declared that

 Where a statute is found by a competent court to be null and void, court has inherent powers to make a consequential order striking out such invalid statute from the statutes. The court would invalidate the unconstitutional provisions and uphold the remainder of the Statute.

Basing on the fact that, the judiciary in Tanzania, has been given constitutional power, to declare any law which is unconstitutional invalid, and also the power to order the striking out of the invalid Act out of operation, this proves that the judiciary has the great contribution in maintaining equality and potenting the doctrine of the rule of law by maintaining the regular law, which forms part of the doctrine.

Also, judiciary in Tanzania have been very furious, against derogative and claw back clause, in order to ensure that basic rights of individual are kept, in the case of THOMAS MJENGI V R[39], the court made it clear that the limitation should be reasonable and they should not infringe the rights of the people, hence protecting the doctrine of rule of law.

Judiciary and maintenance of Separation of powers; according to Dicey separation of powers is one of the fundamental principle of the rule of law, that every organ of the state must perform their functions, independently and according to the law, according to Article 4(1) and (2), of the constitution, it shows that in Tanzania there is separation of power for each of the state organs,

As the matter of constitutional evidence dispension of justice in Tanzania is solely entrusted to the judiciary and not to the executive or legislature, as per article 107A (1) of the constitution, in fact the judicial personnel are separated from either the executive or legislature, this is important because separating these organs aims at ensuring that justice is done, it is in this context that the doctrine of separation of powers is linked with the concept of rule of law.

Hence due to this, the judiciary in order to maintain the rule of law through the doctrine of separation of powers, it has stand strongly, to oppose any interference of its activities from other organs of the state, this can be proved by the case of MWALIMU PAULO MHOZYA V A.G[40], inter alia, it was held that,

“The principle that one branch of government should not encroach on the functions of another is a very important principle. Removal or suspension from office of the President of the United Republic is the legislature’s exclusive prerogative in accordance with the procedure for removing or suspending a President under Article.46A of the Constitution”.

In regarding the above cases it is seen that, the judiciary is of the view of mainting the separation of powers between it and other organs of the state, so that it can achieve the best in its primary object of dispensing justice and ensuring equality in the society, therefore, this is an important contribution of the judiciary toward the potention of the doctrine of the rule of law.

On the other hand, although, the judiciary has been the front liner, in ensuring justice and equality, and thus maintaining the doctrine of rule of law, but on the other side of the coin some of the judicial personnel, have proved failure in protecting this doctrine, by allowing the executive to interfere with their function, thus undermining this doctrine, this can be proved in following cases,

In the case of JAMES BITA V IDD KAMBI,[41] “where by in this case the area commissioner, wrote a letter to a magistrate, informing him that, the land dispute pending in his court was a political issue, and therefore, the party was to be consulted, he further instructed the magistrate to shift the dispute from the court to the village council concern, the magistrate complied, on receipt of the result of the village council the deliberations, he wrote a routine judgment abiding by the decision for the village council”

Also in the case of HAMISI MASISI and ANOTHER V R,[42] where by the resident magistrate succumbed, to the pressure from the regional commissioner, and he had to cancel the bail order, he had granted to accused person because the then regional commissioner and party secretary, wanted the accused person to remain in custody, subsequent the resident magistrate forwarded the record to the high court for review.

These cases proves that, some of the judicial officers are very weak and not old enough in protecting, the powers conferred to it by the constitution, that it should dispense justice freely and out of pressure as per the need of the doctrine of rule of law, this mark the negative contribution of the judiciary toward the potenting of the doctrine of the rule of law, in MASISI’S case,  the high court held inter alia that the resident magistrate was very wrong in succumbing  to the executive while performing his judicial functions, he was required to stand firm against the pressure from the executive, so as to defend not only the people brought to his court, but also to preserve the doctrine of the rule of law.

It is clearly seen that, the judiciary in Tanzania, plays the important role in potenting the doctrine of rule of law, but there are factors which are weaken this doctrine, these are shown hereunder, but just in summary,

Formulation of the discriminatory statute by the parliament example (MOTORVAN SURTAX ACT,[43]), administrative authority in Tanzania have wide discretionary power example president prerogative mercy to (pardon some of the prisoners), president enjoys immunity from civil or criminal proceedings, also other citizen are tried into other court other than the ordinary court, example court martial for militia men only, this is as per NATION DEFENCE ACT,[44]

Also there are existence of derogation and claw back clauses within the bills of right and in some of the Acts example THE NATION ELECTION ACT[45], abuse of the this doctrine by some of the executive members( I.G.LAZARO V JOSEPHINE MGOMERA[46]),  and worse enough there are some group of the citizens of Tanzania who enjoy rights which other do not enjoy, this is contrary to the expectation of the formulators of this doctrine, hence these weaknesses erodes the real meaning of the doctrine of the rule of law. Therefore the judiciary in Tanzania should struggle more to fight against these mischiefs so as to maintain the doctrine of rule of law.

COMMENTS;

It can be advised that, the legal provisions alone, however well entrenched in the constitution, are definitely insufficient, they need judiciary to interpret and give them their true colors; also it is only through a multidisciplinary program that the relevant and correct form of the doctrine of rule of law shall be attained in this country.

CONCLUSION;

Therefore, from the discussion above, it is seen that, in every democratic society, the judiciary plays a significant role in bring about parity, the same role is played by the rule of law, in Tanzania the judiciary have played an important role in potenting this doctrine, but for the same there are other judicial officers who has proved failure on this matter. Also recently there are factors which weaken the doctrine of the rule of law and make it unpopular; strong measures should be taken to restore the strength of this doctrine.

BIBLIOGRAPHY;

STATUTE;

THE CONSTITUTION OF THEUNITED REPUBLIC OF TANZANIA OF 1977, [CAP 2 R;E 2002]

BOOKS;

Dicey, A.V, INTRODUCTION TO THE STUDY OF LAW, 8^TH EDN, McMillan and company ltd, 1925.

C.K Mtaki, & Okema, CONSTITUTION AND REFORMS AND DEMOCRATIC GOVERNANCE IN TANZANIA, Ideas on liberty, Training in freedom.

Jackson, Paul, NATURAL JUSTICE, LONDON, SWEET AND MAXIWELL, 1979.

SERVAI, H.M, CONSTITUTIONAL LAW IN INDIA, the critical commentary, 3^rd edn, Bombay,  and London, sweet and Maxwell, 1984.

  

MAHINA, C.P, HUMAN RIGHTS IN TANZANIA, Rudger kopper KOLN, 1997.

MANUAL;

MTAKI C.K, CONSTITUTION AND LEGAL SYTEM OF EAST AFRICA,  open university manual, 1^st Ed, 1996

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[1] http://en.wikipedia.org/wiki/Democratic_state

[2] CAP 2 [RE; 2002]

[3] http://www.wordwebonline.com/en/JUDICIALSYSTEM

[4] C.K. MTAKI and OKEMA, CONSTITUTIONAL AND REFORMS AND DEMECRATIC GOVERNANCE IN TANZANIA, Pg134

[5] Dicey A.V, INTRODUCTION TO THE STUDY OF LAWS OF CONSTITUTION, P.183

[6] C.K.Mtaki, CONSTITUTION AND LEGAL SYSTEM OF EAST AFRICA, Pg. 239-240

[7] C.M. Peter, HUMAN RIGHTS IN TANZANIA, P 304

[8] {CAP 310 R;E 2002]

[9] Ibid p.377

[10] (1973)LRT. 6

[11] ACT O 3 1965 CAP 596, OF THE REVISED LAWS OF TANZANIAN MAINLAND

[12] 1973

[13] High court Of Tanzania at Mbeya, misc economic criminal application no 11 of 1996

[14] ACT NO 13 OF 1984

[15] Wade, ADIMINISTRATIVE LAW,

[16] opsit, MAHINA, P 482

[17] (1993)

[18] (1985)T.L.R 24

[19] (1979) L.RT NO.6

[20] Opsit, MAHINA, p 304

[21] ACT NO.16 OF 1967

[22] SHIVJI. I.G,STATE AND CONSTITUTIONALISM IN AFRICA, P381

[23] H.C.T at Tabora civil.case  no 3 of 1982

[24] (1993) T.R.L 77

[25] (1993) T.R.L 159

[26] High court of Zanzibar civil case no 8 1981.

[27] SERVAI H.M, CONSTITUTION LAW OIN INDIA, P.1251

[28] Jackson P, NATURAL JUSTICE pg 60

[29] Posit, MAHINA, p.430

[30] {1981}T.L.R

[31]

[32] High court of Tanzania at DSM,  no3

[33] High court of Tanzania at songea, misc, civil appeal no3 of 1994(unreported)

[34] High court of Tanzania at DSM, civil appeal no 9

[35] 1984.

[36] Court of appeal of Tanzania at Dar es saalam, civ.appeal no 64

[37] 1985

[38] (1995) T.L R 80

[39] (1992) T.R.L 159

[40]Civil Case No. 206 0f 1993

[41] (1979) L.R.T NO. 9

[42](1985) T.L.R pg. 24

[43] CAP 394 {R;E 2002}

[44] CAP 192 {R;E 2002}

[45] [CAP 243 R;E 2002]

[46] C.A.T, civil appeal no 2 1986