Aspect of administrative law on human rights.

ASPECT OF ADMINISTRATIVE LAW ON HUMAN RIGHTS:-

HUMAN RIGHTS:-

Are derived from the Bill of Rights which are provisions entrenched in the Constitution providing for relatively absolute guarantees to the individual and protection from the interference which his/her freedom.( not all human rights in the Bill of Rights are guaranteed absolutely.

THE GENESIS OF THE BILL OF RIGHTS:-

The rights in the Bill of Rights of mist modern Constitution were first aired by the rising bourgeoisie during the feudal era. In England which is a Diaspora in a way were the origin started, the Bill of Rights can be traced back to the era of  King John who was very oppressive to his people and who as a result of which led by Barons rose up against him.

They promulgated a charter in the year 1215 which was known as Magna Charter 1215: the King was compelled to assent to the charter. Two months later, a Papal Bull declared it void. However after the death of King John, the charter was reissued by King Henry III. In the said charter clauses protected the freedom of an individual went thus, clause 39: “No freeman shall be taken imprisoned dis seized, out load, burnished or in any way destroyed, nor will he proceed to prosecute him except by the lawful judgment of his peas and the law of the land”. Clause provided as follow: “to no one will we sale nor will we deny or delay his rights or justice”.(since they have a human right touch).

Hence in 1628 King Charles imposes tax by Royal Command without the assent of the parliament apply the Magna Charter spirit, the parliament passed an act providing that: No man could be compelled to pay taxes or such other charges without the consent of the parliament.

Again during reign of King James II, some significant development on the Bill of Rights took place; that was in the year 1689. The said King favored Roman Catholics and bitterly opposed to the Protestants. The King directed that seven bishops should be prosecuted for seditious libel when /what they had done was to present a petition to him. The seven bishops were acquitted by the court as a result King James had to flee his throne, throwing the great seal of river Thames immediately after the trial which acquitted the bishops.

Thereafter the declaration of rights was prepared which came to be known as a Bill of Rights of 1689. The declaration reiterated the liberties of the individual and set limitations to the exercise of the King’s power.

After obtaining independence in 1776, USA established in September 1787 the Constitution of the United States, setting out the structure of the president, Senate, House of representatives etc. 

One of the drafter of the Constitution of the United States by the name James Mudson, took a leading role ensuring that the Bill of Rights in the English pattern was enshrined in the United states Constitution.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS OF 1948:

In 1940 Mr. Churchill Winston the British Prime Minister and the then United states president Franklin Roosevelt and on board in the battleship in the Atlantic and formulated a statement of principles which were shared by Britain, which was then that war while United States was not at war but sympathizes with Britain. The statement of principles formulated was then called the Atlantic Charter.

On the 24th October 1945 the United Nation organization was formed. In December 1948 the General Assembly of the United Nations on 10th December 1948 approved the universal Declaration of Human Rights which borrowed heavily on the Atlantic Charter. The declaration set out various human rights in thirty articles and stated that the said Bill of Rights was for the inhabitants of all the nations of the world, and provided for such rights are ; the right to own property above as well as in the association  with others, the right to freedom of opinion  and expression, the right to work etc. although the UDHR was of less radical effect for lack of means of its enforcement , it had some positive effects as it lead to the adoption of the European Convention on Human Rights of 1950.

HUMAN RIGHTS IN TANZANIA:

In the late 50’s and early 60’s when most colonies were about to achieve their independence, the issue of Bill of Rights came to the fore it was being raised by the very powers that suppressed it for years.

The main concern of the very powers was to protect property accrued during the whole period of colonialism by the nationals and companies of the colonial powers’, which had to be protected thus the right to own property and state protection of the same became one of the main issues as independence.

Therefore in Lancaster House, Britain made sure that a Bill of Rights was enshrined in the Constitutions of her former colonies, not that they cared a lot about the individual rights and freedom indigenous people but their concerns was about the property of its nations still in the colonies after independence.

Unlike many former British colonies Tanzania mainland refused to include the Bill of Rights in the Constitution. The independence Government argued that the enforcement of the Bill of Rights would invite conflict between the executive arms of the Government and the Judiciary. The Government further argued that the rule of law was best preserved not by format guarantees in the Constitution as a Bill of Rights but by an independent judiciary administering justice free from political pressure.

Hence the Bill of Rights was again brushed aside in the proposal for the Republican Constitution in 1962. The   presidential commission on the establishment of a democratic one party state in 1965, also ignored proposals for the introduction of Bill of Rights given to them by the Tanganyika Law Society, instead some very general rights were provided in the preamble to the interim Constitution of 1965.

The same repeated in 1977 Constitution in the case of HatimaliAdamjee  vs. East Posts and Telecommunication Cooperation (1973) LRT pg 6. The High Court of Tanzania had an opportunity of addressing the question of the Status of the preamble to the constitution. The plaintiff in this case who was a Tanzania of an Asian Origin was employed as a postal superintendent by the East African post and Telecommunication cooperation. In 1970 he was compulsorily retired in order to facilitate Africanisation in the Cooperation. He appealed against the retirement arguing among other things that, it violated the policy of non racialism and hence argued that his retirement amounted to discrimination against him as Tanzanian of an Asian origin. His argument was based on the right guaranteed in the preamble to the constitution, a question before the court was whether a person could enforce the rights contained in the preamble. The late Justice Biron held that: the preamble to the Constitution does not form part of the constitution and so does not form part of the law of the land, thus the plaintiff lose his claims.

Furthermore the issue of the rights of an individual was also held in the High Court in the case of ThabitNgaka vs.  no. 24. In this case the question was the right of a worker to his wages. ThabitNgaka was employed by the respondent and his wages were being denied. Instead of basing his case on the preamble; Ngaka  relied on the party constitution which was the first schedule to the Interim Constitution of 1965. The TANU Constitution contained individual guarantees similar to those provided in the preamble. Among these guarantees was the just return to ones labour, the then acting justice Mfalila as he then was held that:- in Tanzania under Article 3(f) of the TANU Constitution workers including Government workers have a right to their wages and not mere privilege. Therefore  Ngaka unlike Adamjee was, successful in this case . since schedule is legally binding not a preamble.

However in 1977 Constitution, the party constitution by then (CCM) , was not appended as a schedule to the Constitution. It was not until in 1984 through the 5th Constitutional Amendment  Act of 1984 that the Bill of Rights Ultimately became formerly entrenched in the Constitution for the first time. The said Bill of Rights is enshrined in part III of the Constitution. 

The Bill of Rights contains both rights and duties of an individual, (Article 12 up to 24-rights, and Article 25 up to 28-duties). Despite its introduction in 1984, the justiciability of the Bill of Rights was suspended for three years within the view of enabling the Government  to clean its house by repealing all laws whose continued existence was incompatible with the exercise of the Bill of Rights.

The procedure for enforcement of the Bill of rights is initiated by filling a petition in the High Court where three Judges will hear and determine the matter. The Judgment of the court is the judgment of the majority of the Member Judges constituting the panel. An appeal against the judgment lies within the Court of Appeal. However, other rules governing the production of evidence and the procedure are the same as applicable in other cases.

LIMITATIONS OF THE ENFORCEMENT OF THE BILL OF RIGHTS IN TANZANIA:-

The greatest obstacle of the Bill of Rights is lack of awareness among the ordinary citizens. Coupled with this fact of lack of awareness the timid attitude of the majority of people, characteristics of one party state still persist in the minds of people.

The other limitation is the conferring of jurisdiction on Human Rights issues to the High Court alone and worse still that petition to be heard and determined by a quorum of three judges, this is another obstacle as most of the acts constitution violation of the Bill of Rights are committed at the grass root level by such law cadre government official as ward and village Executive officers, whereas the High Court centers are relatively few, under staffed  and at great distance from most parts of the Country.

Another limitation is entrenched in the Constitution itself, Article 30(1): “provides the Human Rights and freedoms the principle of which are set out in this constitution shall not be exercised by a person in a manner that causes interference with or curtailment of the rights and freedom of other persons or of the public interest.”

Nowhere in the Constitution is the definition of public interest provided. Hence depending on whims of the public official anything may be done by his/her which curtails the rights and freedom in the name of public interest.

Public interest litigation is curtailed in that for an individual citizen to have a locus standi of filling a petition he must prove that, the law complained of is affecting him/her over and above the rest of the member of the community. Short of that, one is required to move to the Attorney General so that he/she can file the said complaint in court. Otherwise he will have to prove the locus standi.

In the case of LujunaShubiBalonzi vs. CCM [1996] TLR the CJ said: ‘the problem is that more often than not, the Government is the most offender as far as human rights is concerned’. Hence to expect the Government to initiate complaints in such circumstances is naïve, as the Government cannot embark on the cause of action which is suicidal to itself.

INDEPENDENCE OF JUDICIARY:

The concept of Independence of Judiciary has four main dimensions these are

i. There is the aspect of the separate of judicial power and personnel from the Executive and the legislature

ii. There is the aspect of the security of tenure for judges and magistrates.

iii. Aspect of security of personal emoluments and remuneration.

iv. Aspect of immunity of judges and magistrates form prosecution and litigation.

THE HISTORICAL BACKGROUND OF THE CONCEPT OF INDEPENDENCE OF JUDICIARY:

The concept of Independence of Judiciary acquired the said above mentioned four main dimensions at different times in the history of most nations, within the legal history that are either applying the common law system or the civil law system.

Even in those old nations in both systems the four dimensions of the independence of judiciary are yet to be certain and thus still undergo changes and development. Article 107 (B) was entrenched in the Constitution in 2000 concerning the Independence of Judiciary.

However in its modern form the concept of independence of judiciary is traced from 1701 when the Act of settlement of 1701 was passed by the parliament in England representing yet another triumph of parliamentary democracy over the Monarchy.

Whereas prior to this Act Judges were appointed and held office at the pleasure of the King or Queen. The Act of Settlement interalia provided that; Judges appointment was for life and were removable from office not by King or Queen acting in his/her own but by the monarch acting upon recommendations made by the legislature on the sole ground of misbehavior. The said Act also provided that Judges salaries where ascertained and established.

In the British colonies however, Judges contained to be appointed and to hold office at the pleasure of the crown even after 1701 just like any other member of the colonial services.

The constitution of the USA enacted in 1787 after her independence in 1776 also adopted the British Act of settlement of 1701 by providing that; Judges of the supreme court were to hold office during good behavior that is to say to hold office for life unless they misbehaved in which case they could be removed through impeachment by the congress.

Other common law countries like Canada, Australia and Newzealand, upon their independence adopted a constitutional provision about judicial tenure which is similar to that found in the British Act of Settlement of 1701. 

African states which were ex-British colonies also followed the same pattern in their respective independence Constitutions.

INDEPENDENCE OF JUDICIARY IN TANZANIA.

The concept of independence of Judiciary may be said to be part of the National Ethic, in that is one of the ideals reflected in the preamble to the Constitution  of The United Republic Of Tanzania of 1977 as amended. it is pertinent though to look at the concept  of the independence of judiciary in its four dimension and its operation in Tanzania

SECURITY OF TENURE:

The tenure of Justice of Appeal and Judges of High Court is secured by the Constitution under Article 11o and 120 of the constitution provides for security of tenure for both judges. In totality the two articles simply provides the following a judge of the High Court or Court of Appeal shall not be removed from the office by the president except for inability to perform his/her functions. Whether arising from infirmity of the body mind or any other cause or for misbehavior.(Article 110(a)- formation of a special tribunal).

Were removal from office is contemplated, the president appoint a tribunal consisting of a chairman, and not less than two other members. The chairman and at least half of the members of the special tribunal must be the judges of the High Court or Court of Appeal in any country of the common wealth.

A tribunal inquires into matter and makes a report to the president. If the tribunal advises direct the president, that the said judge should be removed from the office. Likewise if the tribunal advises that, the said judge ought not to be removed from office, the president must abide by that advice while the question of removing the judge has been referred to the tribunal the president the president may suspend such judge from performing the function of his or  her office.

Such suspension ceases to have effect if the tribunal advises the president that the said judge should not be removed from office. Under the Judicial Service Act of 1962 and the regulations made there under, a resident magistrate once conferred in his/her appointment hold office until promoted to the higher judicial rank or until the compulsory retirement age of 60 years, and his removable from office only by judicial service commission established under Article 112(1) of the Constitution.

The grounds for removal are not specific under  the Constitution or any legislation but in practice resident magistrates are removed from office on grounds similar upon which civil servants are removed from office by the civil service commission established under the Civil Servants are removed from office by the Civil Service Commission established under the civil service commission established under the  Civil Service Act of     those grounds are broader and more numerous that those applicable for the removal of Judges.

 However of the composition of the judicial service commission ensures that magistrates are  not removed from office on political or any other grounds which endangers judicial independence.

There is a similar board known as a special commission established under s. 21(b0 of the judicial service Act of 1962 for primary court magistrate with functions and powers similar to those of the judicial service commission.

Primary courts Magistrates are removable by this board upon the recommendations from a regional or District Judicial Board and which the Consent of the Minister responsible for legal affairs.

PERSONAL EMOULMENT AND REMUNERATION:

Under  art.142 of the CURT of 1977 the salaries and pension of judges of the HC and the Court of Appeal is payable out of the consolidated fund and it’s not dependent on annual parliamentary debates fund and appropriations moreover the salaries and conditions of services except for allowances of such a judge. Yet there are no similar provisions concerning the magistrates.

IMMUNITY FROM PROSECUTION AND LITIGATION:-

Judges of HC and Court of App enjoy the same common law protection, enjoyed by judges in other common law countries, as regards immunity from prosecution or litigation for those acts done or words said in the performance of the judicial duties.

The position of magistrates is slightly different. Under s.66 of the MCA of 1984. Magistrates are protected from litigation for anything done or said in the performance of their judicial duties when the acts or words are done or said in good faith (must).

Judges have blanket protection compared to magistrates.

Magistrates are also protected by common law from prosecution for anything done or said in their judicial capacity unless it can be proved that the injurious acts or words were done or said by the magistrate which a corrupt purpose. This also goes for judges 

SEPARATION OF JUDICIAL POWERS AND PERSONNEL FROM OTHER BRANCHES OF THE GOVERNMENT.

The administration of the judiciary in so far as it relates 2 the operation of the Court, the appointment and supervision of the supporting staff is a matter of concern of the judiciary itself. The personnel management of the magistrates and judges and as well as the relevant budgeting and expenditure is the responsibility of the judiciary under the CJ (who is the head of judiciary) –president of the supreme court e.g. Kenya. 

Art. 117 &118 of the CURT of 1977.

PRACTICAL PROBLEMS:- FOR FULL REALIZATION OF THE CONCEPT OF THE INDEPENDENCE OF JUDICIARY.

There are a no of short comings for achieving complete and independence of judiciary as an ideal (the way it was ought to be). 

One of them relates to the question of personal emoluments and remuneration, as it has been seen that only judges emoluments and remunerations, are secured but those of magistrates who constitute the majority of the judicial personnel (it’s a challenge). Their salaries and other emoluments are by far not commensurate/proportionate to with the heavy responsibility shielded upon them. This has made them easy pray of corruption temptations 

As to security of tenure there is nothing in the CURT which prevent the president from revealing any judicial office of his/her judicial officer of his/her judicial functions and assigning him or her other duties of an executive nature. I.e.Werema J, (who is now the state attorney).this loophole/lacuna may be used to punish bold judges who in the cause of balancing the scale of justice are branded as anti-government.

On the other hand the separation of judicial powers and personnel from the other branches of the gvthas impractical continue to deny the Judiciary of professional administrators.

Apart from the registrars (chief registrar and registrar of the court of appeal) the rest of administrators in the judiciary are “part timers” whose main field of competence is law.

*function of the registrar –civil procedure code

The immunity from litigation and prosecution enjoyed by Judicial officers of all grades has often been abused by magistrates particularly the one presiding in the Primary Courts 

To conclude the problem is aggravated by the absence of transferwhere by a magistrate of a judge may serve at one working station for over a number of years.