context of the doctrine of rule of law in Tanzania by Johnson Yesaya

RULE OF LAW

Rule of law is the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a non-arbitrary form of government, and more generally prevents the arbitrary use of power[1]. Arbitrariness is typical of various forms of despotism, absolutism, authoritarianism, and totalitarianism. Despotic governments include even highly institutionalized forms of rule in which the entity at the apex of the power structure (such as a king, a junta, or a party committee) is capable of acting without the constraint of law when it wishes to do so[2].

Other academicians defines rule of law as absence of arbitrary power on the part of the Government, which means that the administration possesses no discretionary powers apart from those conferred by law[3].Doctrine of rule of law set standards that, every activity of the Government or institutions or private dealings must be governed by laws. Anything beyond the law is against the Doctrine of rule of law[4].

CONTEXT OF RULE OF LAW

Everything must be done in accordance to the law. Applied to powers of the executives, this rule requires every Government authority which conduct a particular activity or act which affects the citizen’s rights must be able to justify its action as authorized by law which is invariably will be an Act of parliament. Any government officer, department, institution or board which exercise a particular activity affecting citizens, must have a legal pedigree or else the affected person may resort to the court of law in order to invalidate the act. This aspect of the rule of law is known as “The Principle of Legality”, means every Government action must be backed with a legal provision.

Absence of arbitrary power on power of executive. The Government should be conducted within scope or boundaries of rules and principles which restricts discretionary power. Discretion is the authority of a judge, public official or a private person to make decisions on various issues based on his/her opinion without legal guidelines[5]. It is a public official’s power to act in certain circumstances according to personal motives and influence without regarding principles set in conducting a particular activity.

Dicey on rule of law explained that, human beings have evil in nature, allowing them to use their own judgments in state affairs expose country to unfairness and injustices because the practices in government offices will be in accordance to human behaviors and not a set of rules and principles which uphold equality between the people and equality before the law.

The government or executive should not enjoy unnecessary privileges and exemption from the ordinary law[6].The Doctrine of rule of law requires everyone to be responsible for his or her wrong doings, under this doctrine, even government is required to exercise its power in accordance to the law. Incase government act unfairly regardless of existing laws, an affected party can sue the government to seek relief before court of law. The government is now reduced to an ordinary individual (legal person) and that can be sued through the Government Proceedings Act[7]. Before amendment, the law gave an illogical provision for a consent from the Government itself to be sued but the provision was later amended by Act[8]which provided a 90 days notice before instituting suit against government[9]

Equality before the law[10]. It implies equal subjection of all persons or offenders to the ordinary laws of the land as administered by the ordinary courts of law. Government officials or any other person hold no special privilege or protection against criminal or civil liability (president, speaker of the legislature and chief justice of the judiciary of Tanzania are subjected to special privilege and protection). The Doctrine of rule of law entails that, “no one is above the law”, every man, whatever be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdictional of ordinary courts.

Rule of law envisages that no one should be punished except for some legally established offence and compliance to arraignment principle.  A state cannot be said to uphold a rule of law while it is said to be breaking this rule by enacting law with a retrospective effect. This means creating offences which they were committed at the time which they were not offences as per laws.

On the other hand, arraignment principle is necessary in exercising dispensation of Justice. No one can be sent to prison without be taken to court to answer his or her charges. In whatever case might be, government should not skip this principle because it is a basic principle of Justice.

REFERENCE

STATUTES

The Constitution of United Republic of Tanzania of 1977, as amended [Cap 2 RE: 2002]

 

BOOKS

Venn D.A, “Introduction to the Study of the Law of the Constitution”, Macmillan, 1915

Barnett H, “Constitutional and administrative Law”, 5th Edition, Routledge Cavendish, 2004

Weir S, Beetham D, “Political Power and Democratic Control in Britain”, Routledge, 1999

Philips.O.H, Jackson, “Constitutional and Administrative Law”, 8th Edition, Sweet & Maxwell, 2005

 

ONLINE SOURCES

https://www.britannica.com/topic/rule-of-law

https://www.un.org/ruleoflaw/what-is-the-rule-of-law/

https://worldjusticeproject.org/about-us/overview/what-rule-law

https://definitions.uslegal.com/d/discretion/

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[1]https://www.britannica.com/topic/rule-of-law

[2]https://www.un.org/ruleoflaw/what-is-the-rule-of-law/

[3]NchallaB.M  LLB- IUCO, LLM –PRETORIA, LLM CAMBRIDGE: written by  FABIOLA.H. ODIRA

[4]https://worldjusticeproject.org/about-us/overview/what-rule-law

[5]https://definitions.uslegal.com/d/discretion/

[6]https://fee.org/articles/the-rule-of-law-is-limited-by-the-size-of-government/

[7]Cap 5 of 1967

[8] No.40 of 1974

[9] Ibid

[10]Article 13(1) of CURT of 1977 as amended