A paper on weaknesses and strength of judicial review process.

 ABSTRACT

The main theme of this paper is to conduct an assessment on the weakness and strength of judicial review process and to recommend if there’s need to reform the process. Among weakness of judicial review process is the limited scope of remedies available to the applicant. Judges are limited not to exceed their powers when making orders during review, they do not finalize the matter rather than declaring the matter null and require the bodies passed such illegal decision to correct their mistakes, the court here do not deals with rights of parties but the procedures applied to reach such decision.  In some cases, judicial review processes goes against constitutional doctrine of separation of powers by interfering the powers of executive.

Judicial review is a powerful tool with strengths to challenge decision of administrative bodies/government, citizens are allowed to challenge unlawful decisions by government which affect their  well-being . the case of Festo Barege and 794 others v Dar es Salaam City Council , is a best example of judicial review process where government decisions were quashed.

INTRODUCTION

1.0 CONCEPT OF JUDICIAL REVIEW

Judicial review is a re-visit by superior court of decisions passed by administrative bodies, subordinate court or tribunal to check its legality. High Court of Tanzania has original jurisdiction on reviewing decisions of administrative bodies and tribunals . Judicial review is a court process which intends to check the legality of all procedures applied to reach a decision by administrative bodies. The High Court may enter prerogative orders if, there is clear evidence that, the decision passed by administrative body is ultra vires, illegal, un-reasonable or passed without regarding procedural requirements set by laws. Section 17(2) , impose powers to the High Court to issue prerogative orders against any public department or body or any individual with administrative powers which may affect basic rights and well being of citizens.

2.0 PREROGATIVE REMEDIES

The outcomes of successful judicial review are prerogative remedies. Prerogative remedies are remedies issued by the High Court for the supervision of subordinate courts, tribunals and other bodies exercising judicial or quasi-judicial functions. The aim is to keep subordinate courts, tribunals and other bodies exercising judicial or quasi-judicial functions to act within their proper jurisdiction. The High Court of Tanzania does issue prerogative orders in the exercise of its power of judicial review by virtue of the Judicature and Application of Law Act  under section 2.

Generally, those remedies are being issued by the High Court and have provided to be a very effective means of securing the rule of law as explained in the case of Lausa  Alfan Salum and 116 others v. Minister for Housing and Urban Development and National Housing Cooperation , that whether prerogative orders may be issued and when judicial review of administrative action is possible, stated that any action of a public official done in official capacity is challengeable on the ground of illegality, irrationality and procedure impropriety may be issued in certain cases either quash a decision in the cause of performing a public duty or to prohibit the performance of a public law. Remedies to discuss are certiorari, prohibition and mandamus.

2.1 Types of prerogative remedies

2.1.1 Certiorari

Certiorari means ‘to be informed.’ It is a writ issued by the High Court to a subordinate court or any other authority exercising judicial or quasi – judicial functions to investigate and determine the legality and validity of the orders passed by it. Its object is to keep inferior courts and quasi – judicial authorities within limits of their jurisdiction and if they act in excess of their jurisdiction their decision can be quashed by superior courts by issuing this writ. 

By setting aside a unlawful decision, certiorari prepares the way for a fresh decision to be taken. The exact history of the development of the writ is complex but Rubinstein argues convincingly that certiorari was originally developed to fill a gap left by collateral attack and the writ of error. Collateral attack, in the form of an action for assault, trespass etc, lay only for jurisdictional defects, while the writ of error was restricted to some courts of record. It developed to fill a gap that might arise. The area left unfilled was an error within jurisdiction by an institution not amenable to the writ of error. The remedy was thus initially aimed at errors within as opposed to errors going to jurisdiction.

It was in response to the development of finality clauses that certiorari began to be used more generally for jurisdictional errors. The courts construed such clauses restrictively to render them applicable only for non- jurisdictional error; where the error went to jurisdiction, certiorari was held to be still available . The reach of certiorari was augmented further by the acceptance of affidavit evidence to prove that a jurisdictional error existed.

It does not remove an arbitrator for misconduct but application may be made to the High Court for this. Also, it will not ensure to quash the order of a body that has acted in a purely ministerial or executive capacity, notwithstanding of a judicial character of another body. It lies on the following bodies, courts of inferior jurisdiction, area courts and tribunal administrative and disciplinary. It is used or awarded to secure an impartial trial to review an excess of jurisdiction challenge an ultra – act, to quash a judicial decision made contrary to the record. 

By granting a quashing order does not impose its own decision, it implies invalidates the original decision, which may result in the matter going back to the original body to reconsider afresh. In applications for prerogative orders the court investigates the legality of an action or decision of an inferior tribunal or authority.

2.1.1.1 Grounds for certiorari

There are different grounds for awarding certiorari like excess or lack of jurisdiction, errors of law on the face of record, breach of rules of natural justice and the like, as been explained within the case of Sinai Murimbe and Another v. Muhere Chacha,  held that an order of certiorari is one issued by the High Court to quash the proceedings and the decision of a subordinate or a tribunal or a public authority where, among others, there is no right of appeal. The High Court is empowered to investigate the proceedings of a lower court or tribunal or a public authority on any of the following grounds, first, that the subordinate court or tribunal or public authority has taken into account matters which it ought not to have taken into account, second, that the court or tribunal or public authority has not taken into account matters which it ought to have taken into account, third, lack or excess of jurisdiction by the lower authority, forth, that the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it, fifth, rules of natural justice have been violated and six illegality of procedure or decision. 

A. Errors of law on the face of record

The rejection of admissible evidence is error of law on the face of record, also, admission of inadmissible evidence is error of law on the face of record.

In the case of R. v. Industrial Injuries Commissioner Ex. Parte Ward , it was explained that if the record of proceedings shows that inadmissible evidence was admitted or admissible evidence was rejected, that would be error of law on the face of record. Where the tribunal mistook burden of proof, it was held that it amounted to error of law on the face of record. Error of law on face of records attracts Certiorari writ.

B. Breach of rules of natural justice

Certiorari lies to quash court order made contrary to principle of natural justice. These rules are epitomized by use of Latin expressions viz – Audi Alteram Partem rule and Nemo judex in causa sua rule. These rules are formulated to confirm minimum procedural safeguard or fairness. So fundamental in this principle that it has been held that if a tribunal violates this principle, its order will be vitiated. It matters not that even if the principle had not been followed, the same decision would have been arrived at. Lord Wright in the English case of General Medical Council v. Spackman , ruled that, if principles of natural justice are contravened in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. That decision must be declared to be no decision.

2.1.2 Prohibition

Prohibition is an order issued primarily to prevent an inferior court or tribunal from exceeding its powers or acting against the rules of natural justice. In the case of Re. Godden  held that a Chief Medical Officer of police authority certified that Godden was suffering from disorder, the authority, employer of Godden wished to retire him compulsorily, to do this; the authority was required by a statute to refer Godden’s condition to a doctor. The High Court held that the decision of the Chief Medical Officer virtually affected Godden’s whole future career and therefore, he had to act judicially. Therefore, the court issued the order to prevent the Chief Medical Officer from acting. Prohibition is a discretionary remedy. The existence of another alternative, adequate and equally efficacious remedy is a matter which may be taken into consideration by the High Court in granting a writ of prohibition. 

2.1.3 Mandamus

Mandamus means a command to a person to do something which is his/her legal duty. It is discretionary remedy. It will not issue where there is a plain, speedy, and adequate remedy at law; and it is the inadequacy not the mere absence of other legal remedies that generally determines the propriety of issuing an order of mandamus. Many courts refuse the writ when it will not serve a useful purpose or where it would be ineffectual as where the defendants cannot perform the duty; or where the act in issue is expressly prohibited by statue or judicial decree.

In the case of Obadia Salehe v. Dodoma Wine Company Ltd  held that the authorities go on to state that such alternative remedy should be speedy, convenient, beneficial or effective. That is far from saying that the existence of alternative remedy is an automatic bar to judicial review. The availability of an alternative remedy is only one of the matters to be taken into account by the court.

It is issued upon the application of one who has a clear right to demand such performance, and who has no other alternative remedy. Mandamus is different from certiorari or prohibition that it used to compel a public officer or body to perform its duty correctly. It will lie to any person who is under a duty imposed by statute or by the common law to do a particular act. If that person refrains from doing the act or refrains from wrong motives from exercising power which it is his duty to exercise this court will by order of mandamus direct him to what he is supposed to do. 

2.1.4 Injunction

An injunction is a writ of the High Court addressed to a party to proceeding before requiring it to do refrain from doing, or to do a particular act. It is a negative remedy in administrative law; it is granted when an administrative authority does or expect to do anything ultra vires, the leading case is Metropolitan Asylum District v. Hill , the relevant act empowered the authority to build a hospital for children for treatment of small – pox. A prohibitory injunction was obtained by the neighboring inhabitants on the ground of nuisance. An injunction was granted to prevent such expulsion. 

In the case of V.G. Chavda v. Director of Immigration Services and Another  the applicant had been given a deportation writ by the Minister for Home Affairs under the Immigration Act, He then filed in the High Court an application seeking leave to apply for writs of certiorari, mandamus and prohibition and an injunction restraining the Minister and the Director of Immigration Services, Later, when the application for temporary injunctive relief was called on for hearing the Senior State Attorney raised a point in liming that under section 11 of the Government Proceedings Act  the Court had no power to make an interim injunctive order against the Government, its minister or officials. In rejecting the preliminary objection, the High Court held that, thus, constitutional proceedings and proceedings which are instituted under this Court’s supervisory jurisdiction that is to say, the jurisdiction to supervise statutory and domestic tribunals conferred on the court by section 17 of Law Reform.

2.1.5 A declaration

A declaration is a statement of the legal position in the matter before the court.  The court may simply declare that neither administrative action nor decision is valid or not. A declaration lacks coercive power as the case has been in Tanzania with High Court declaring some statutes null and void and wait for responsible authority to rectify the situation. The essence of a declaratory judgment is that, it states the rights or the legal position of the parties as they stand without altering them in any way though it may be supplemented by other remedies in sustainable cases. A declaratory judgment by itself merely states some existing legal situation. It requires no one to do anything and to disregard it will not amount to contempt of court of law. 

The remedies available for judicial review in Tanzania are the prerogative remedies namely mandamus certiorari and prohibition as per section 17 of Cap. 310. However, it should be noted that in Tanzania declaration is not party of prerogative remedies available under Cap 310. This is a remedy falling under civil proceedings under the Government Proceeding Act. As to injunction this can be obtained as an interim measure to restrain unlawful act about to be, or in the process of being committed. It is a tool to maintain status quo ante.

2.1.6 Habeas corpus

Is an order requiring a person having custody of a prisoner to bring him before a court of law together with the grounds for detention. The court then tests the legality of the detention and directs release of if the imprisonment is found to be unlawfully. In the case of Sheikh Abdulla v. Regional Police Commander, Dar es Salaam and Two others , the President of the United Republic of Tanzania had made an order that the applicant should be deported to Zanzibar from Tanzania Mainland that is, Tanganyika, under section 2 of the Deportation Ordinance (Act). The applicant made an application in the High Court which was in the nature of habeas corpus, a writ directed to a person who detains another in custody and commands the person to whom it is directed, in this case the respondents, to produce the body of the person so detained before the court for a specified purpose. 

The applicant challenged the order on the ground that the President had exceeded his powers under the said law. In granting the application the Court held that a decision or order is ex - facie bad. The court added that a President’s order was “gravely flawed”.

3.0 GROUNDS FOR ISSUANCE OF PREROGATIVE WRITS

In Tanzania, Moshi, J. pointed out three grounds for judicial review in the case of Lausa Alfan Salum and 116 others v. Minister for Lands Housing and Urban Development and National Housing Corporation , and he had this to say: Prerogative orders of certiorari and prohibition may be issued in certain cases, either to quash a decision made in the course of performing a public duty or to prohibit the performance of a public duty, where the injured party has a right to have anything done, and has no other specific means of, either having the decision quashed or the performance of the duty, prohibited, when the obligation arises out of the official status of the party or public body complained against… had an imperative legal duty of public nature which they had to perform in their official capacity. He said that, in my considered view, any of their actions or decisions is challengeable; firstly, if it is tainted with illegality, which is the power exercised is ultra vires and contrary to the law. 

He went further that, if it is tainted with irrationality that is, the action or decision is unreasonable in that it is so outrageous its defiance of logic or of accepted moral standards that no sensible person who has rightly applied his mind to the matter to be acted upon or to be decided could have thus acted or decided. Again, he said that, if the action or decision is tainted with procedural impropriety, that it, failure to observe basic rules. Below are the explanations on those grounds of issuing prerogative remedies under judicial review:

3.1 Illegality 

In the principle of judicial review is limited to review of the lawfulness or legality of a decision or action by a public bodies act legally within their powers i.e. intra vires and the principles of natural justice are observed in making decisions by these bodies. Public bodies derive their authority from the constitution and ultimately from the electorate, and it is not for judges to step into their shoes but ensure fair treatment to the people by the authority 

By illegality as a ground for the application of prerogative remedies under judicial review, Lord Diplock said that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is a question to be decided in the event dispute by judges. This would mean that when a power vested in a decision maker is exceeded, acts done in excess of the power are invalid as being ultra vires (substantive ultra vires). Illegality is extended to include exceed of jurisdiction, errors of law, failure to fulfill a statutory duty, acting for an improper purpose, delegating discretionary powers unless permitted by law, failing to take into account all relevant considerations, fettering discretion, and interference with fundamental rights.

3.2 Error of law

Error of law simply means any misdirection in law that would render the relevant decision ultra vires and a nullity. The case of Anisminic Ltd v. Foreign Compensation made it clear that all errors of law are now subject to judicial review and thus cleared doubt as whether errors of law by an inferior court, or tribunal or public authority within jurisdiction ( which were not reviewable could be subject to review).

Also the case of Said Juma Muslim Shekimweri v. Attorney General  where the applicant sought an order of certiorari to bring up and quash a decision of the President of the United Republic of Tanzania retire ring the applicant, an immigration officer, in the public interest. It appeared that the applicant had been employed by the government of Tanzania for some years without having been subjected to any disciplinary sanction. The applicant had read a newspaper report of his dismissal for allegedly bribes. About two months later the applicant received a letter informing him of his retirement. The High Court developed the principle that: The common law principle is that a civil servant was dismissible at pleasure of the President was not part of the law of Tanzania; That the letter informing the applicant of his retirement cited provisions of law which were incompatible and this had caused the applicant considerable embarrassment; standing order f 35 which provided that all appointments were at the pleasure of the President was invalid as it was in conflict with the provisions of article 22 and 36 (2) of the Constitution of United Republic of Tanzania. 

The only legislative provision which permitted the compulsory retirement was paragraph (d) of section 8 of the Ordinance which would be utilized only for the purpose of facilitating improvement in the organization of the department to which the civil servant belonged. It was clear that the applicant’s removal had not been sought on these grounds. Therefore, the President’s dismissal is null and void since it was lies on the simple ultra vires under the error of law.

Other grounds for issuance of prerogative remedies include exceed of jurisdiction, bad faith, fettering of a discretion, irrationality, irrelevant consideration, procedural impropriety and un-reasonable decision.

3.3 Exceed of jurisdiction

This consists of using powers in a manner totally different from that envisaged, for the public body, departments or tribunals to take a decision or to embark upon a decision process without authority or power, means that it acts ultra vires or without jurisdiction. In the case of R. v. Secretary of state for the Home Department Ex. Parte Leech , a prisoner who was involved in various civil actions feared his correspondence with his solicitor was being conserved under Prisoner Rule 1964, He applied for judicial review to quash the Governor’s power of censorship over letters between himself and his legal adviser as being ultra vires were not removed either expressly or by necessary implication.

3.4 Irrationality

This is the second ground, that a decision- making which is an outrage in its defiance of logic or of accepted moral stands that no reasonable person who had applied his mind to it could have made such a decision. The decision maker to whom a discretionally power is vested must not exercise that power in a way that no reasonable body will, a good example is referred to Wednesbury unreasonableness in the case of Associated Provincial Picture Houses Ltd v. Wednesbury Corp , the Court of Appeal held that a court could interfere with a decision that was so unreasonable, that no reasonable authority could ever have come to it. Irrationality applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. This ground has been used to uphold constitutionalism as it prevents powers from being abused by. For example, exercising discretion for an improper purpose or without taking into account all relevant considerations. In doing so, courts have been in return protecting human rights through judicial review.

In R. v. Ministry of Defense ex parte Smith62 the court reviewed a decision to discharge a number of individuals from the army of the basis of their homosexuality. The basis for the decision was that the presence of homosexuals in the armed forces would have a substantial and negative effect on the operational effectiveness of the armed forces. The court of appeal affirmed the decision of the government and developed the principle of anxious scrutiny. But the case was again referred to the European Court of Human Rights as Smith v. United Kingdom63 where it was held that there had been violation of right to private life and the right to an effective remedy. The court held the irrationality test in judicial review provided an insufficiently effective means of scrutiny in the circumstances.

However, Lord Green said that, taking irrelevant considerations into account and exercising a discretionary power for an improper purpose would constitute unreasonable action, hence unreasonableness is also in itself an invalidating factor, including irrelevant consideration and improper purpose.

3.5 Irrelevant consideration

In exercising discretion, a decision- maker must have regard to relevant matters and must disregard irrelevant matters, taking example in the case of R. v Somerset Country ex. p. Fewings , the local authority owned common land, its environment committee meets to consider stay hunting and resolved that it should be allowed to continue on the land. All full authority meeting, a resolution was passed banning stage hunting. Most of those when voted inform of ban influenced by the argument that hunting unacceptably and unnecessarily cruel. 

The claimants who regularly hunted on the land sought judicial review. It was held that the resolution was unlawful exercise of its power under the Local government Act 1972, to acquire and manage land for the benefit, improvement or development of their it the judgment, hearing could only be banned if it were decided that there were better ways of managing the deer herd because it was necessary to preserve or enhance the enmity of the area. The argument was that, hunting was morally repulsive an irrelevant consideration.

3.6 Bad faith

Bad faith can be a ground of the judicial review act whereby the claimant recognizes that during the decision, the decision maker was in likelihood dishonest. In the case of  Cannock Chase District Council v. Kelly , is observed that, bad faith put lack of good faith, means dishonest not necessarily for a financial motive but still dishonest, it always involved a grave charge. It must not be treated as a synonym for an honest although mistake or taking into consideration of a factor which is irrelevant. Since bad faith involved a grave charge against a public authority, it will be necessary to ensure that the matter has been clearly pleaded.

3.7 Fettering of a discretion

Decision-makers are clearly put in a position where they have a large measure of discretion as to the decision which they reach in a particular case. Even where a decision is based on relevant considerations, a decision maker must ensure that such considerations have not fettered their discretion and to take care by ensuring that they have regard to relevant considerations and disregard irrelevant considerations.

3.8 Procedural impropriety

Procedural impropriety as a third ground for judicial review when the aggrieved party intends to apply prerogative remedies, it covers the failure by the decision-maker to observe procedural rules that are expressly laid down in the legislation by which its jurisdiction is conferred or a failure to observe basic rules of natural justice, or a failure to act with procedural fairness i.e. procedural ultra vires. Lord Diplock said that, procedural impropriety rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this, covers also the failure by an administrative tribunals to observe procedural rules that are expressly laid down in the legislative instruments by which its jurisdiction is conferred ultra vires which is encompass two areas of failure to observe procedural rules laid down in statute and failure to observe the basic common law rules of natural justice.

Where public body acting in reliance upon statutory powers has failure to comply with the procedures laid down in the relevant Act, it can be said to have acted ultra vires, for example when a minister may be under a statutory duty to consult certain specified organization or such organizations as he thinks fit prior to making a decision and the requirement to consult is a mandatory, a failure to comply with it may mean that the procedure is thereby ultra vires, this procedure impropriety as well as explained in the case of R. v. Aylesbury Mushrooms , that since the consultation is mandatory, failure to consult the board concerned is the breach of procedural regulations. 

Again, a case of Ridge v. Baldwin  is a good example of this ground that, the chief constable of Brighton was tried for conspiracy to obstruct the course of justice. During the trial he was suspended from office. He was acquitted but the judge told him he lacked the professional and moral readership. The public was entitled to expect. 

He sought judicial review to challenge the dismissal as a breach of natural justice. It was held that, the watch committee was in breach of the principles of natural justice as well as of the statutory regulations governing policy discipline. It was contrary to natural justice to decide the issue without hearing the chief constable. Hence, natural justice was not confined to situations where a judicial or quasi- judicial function was being exercised. This landmark decision is recognition of the impact of decisions of administrative bodies on people’s life. 

Therefore, a breach of common law rules and natural justice based on the right to a fair hearing (audi alteram partem) to hear the other side and the rule against bias (nemo judex in causa sua). Therefore, if the administrative makers fail to undergo these rules is where now the court can intervene through judicial review.

3.9 Proportionality

Proportionality is concerned with the way in which the decision maker has ordered his priorities, the very essence of decision – making consists in the attribution of relative importance to the factors in the case. In the human rights context, proportionality involves a balancing test and the necessity test. The former scrutinizes excessive and onerous penalties or infringement of rights or interest whereas the later takes into account other less restrictive alternatives. This doctrine ordains that administrative measures must not be more drastic than is necessary for attaining the desired result. 

If an action taken by an authority is grossly disproportionate, the said decision is not immune from judicial scrutiny. Apart from the fact that it is importer and unreasonable exercise of power, it shocks the conscience of the court and amounts to evidence of bias and prejudice.

The case of R. v. Secretary of State for the Home Department , noted that the criteria of proportionality that; proportionality may require the reviewing court to assess the balance the decision – maker has stuck, not merely whether it is within the range of rational or reasonable decisions. Proportionality may go further than the traditional test as it may require attention to be directed to the relative weight accorded to interest and consideration.

In the case of Peter Ng’omango v. Gerson Mwangwa and Attorney General , in declaring the section unconstitutional and so void, the court held that the principle of proportionality or reasonableness requires that the means employed by the Government to implement matters in public interest should be no more than is reasonably necessary to achieve the legitimate aim. That the government must show that the restriction imposed on a basic human right is required by compelling social need and that it is so framed as not to limit the right in question more that is necessary or proportionate to achieve a legitimate objective.

In R. v. Secretary of State for the Home Department , Lord Steyn noted that the criteria of proportionality are more precise and more sophisticated than the traditional grounds of review and on to outline three concrete differences between the two; that proportionality may require the reviewing court to assess the balance the decision–maker has struck, not merely whether it is within the range of rational or reasonable decisions. Proportionality test may go further than the irrational test as it may require attention to be directed to the relative weight accorded to interest and considerations and even the heightened scrutiny test developed in R. v. Ministry of Defense ex.p, Smith  is not necessarily appropriate to the protection of human rights.

4.0 THE PROBLEM WITH JUDICIAL REVIEW

4.1 The separation of functions

In Tanzania we have three organs of the state include executive, legislature and judiciary. Both organs assigned under constitution the separate functions which are to be performed without interference between the organs. Judicial review is considered as a process which goes against a constitutional principle of separation of powers by interfering matters adjudicated by executive. Parties aggrieved by decision of executive may apply before High Court for review, when court finds that there was irregularities, irrelevancy, procedural impropriety and un-reasonableness of decision, the court may quash decision and order re-trial before same tribunal passed the decision.

4.2 Limits of effective judicial action

As per our constitution, judiciary is the final organ which dispense justice. This is not a big deal when it comes to judicial review, the judicial review process only conducts assessment of the trial held before tribunal to check if all legal requirements were followed in making their decisions, in judicial review the court of law is tied only to check the validity of the trial held by tribunal or subordinate court and not to determine rights of parties. A court is prohibited to interfere powers of executive by deciding matters originally within jurisdiction of executive, what court only do in judicial review is to quash decision, to  prohibit the performance of particular activity and to compel the performance of a particular activity, the decision of core issues of the case are left to be concluded by administrative bodies.

What actually court do in judicial review is to make comment on how the matters under review held during original trial in administrative bodies. The comment of the court falls on legality of the decision and not rights of parties, the court will order re-trial by the same tribunal or otherwise..

4.3 Interlocutory orders cannot be reviewed

Interlocutory orders are temporary writ of the main suit pending determination of the main case. Judicial review lack powers in interlocutory orders unless they have elements to finalize the case. Interlocutory orders are not subject to review, revision and appeal unless they have elements to finalize the case. On this view, the judicial review has no purpose when it comes to a matter of interlocutory writs.

5.0 SUGGESTED SOLUTION

The judiciary of Tanzania is entitled powers to dispense justice, this is the core function of judiciary which is left to judiciary only. Judicial review is a process which tie hands of court to some extent, judicial review only determines legality or validity of the trial held at administrative bodies not the rights of parties, the decision of court must not exceed limits to interfere the powers of administrative bodies. This situation conflict the powers of judiciary by imposing limits to dispense justice by judiciary, this is the transfer of powers of judiciary to other organs of the state particularly executive. 

Judicial review needs a reform so as to grant full powers to court to make decisions which goes far more to determine rights of parties because that is the core function of judiciary. Making other bodies powerful more than court in dispensing justice conflicts exclusive powers of court and it subordinate mandates of court.

6.0 CONCLUSION

Judicial review is a powerful tool to challenge unlawful decisions by government bodies, judicial review checks government actions to balance its powers. Judicial review is important because it prevents mis-use of administrative powers which may affect well-being of citizens. Reform to judicial review process is necessary so as to add more powers to court to take any action on a matter freely without limitations.

REFERENCE

STATUTE:

The Law Reform [Fatal Accident and Misc. Provision] Act of 2002

The Constitution of United Republic of Tanzania Cap 2 of 1977 as amended

BOOKS:

Bisimba, H and C.M. Peter (2005), Justice and Rule of Law in Tanzania; Legal and Human Rights, Tanzania.

Thakker, C.K (1995), Lectures on Administrative Law, Eastern Book Company, Lucknow.

Peter, L and G. Anthony (2005), Administrative Law, 5th Ed, Oxford University Press Inc, New York.

CASES:

Lausa  Alfan Salum and 116 others v. Minister for Housing and Urban Development and National Housing Cooperation  (1992) TLR 293 HC

Abadiah Saleh vs. Dodoma Wine Co. Ltd High Court of Tanzania at Mwanza, Miscellaneous Civil Case No. 3 of 1989

John Mwombeki Byombalirwa vs. Regional Commissioer, Kagera and Others High Court of Tanzania at Mwanza, Miscellaneous Civil Case No. 3 of 1989

Mwanza Restaurant and Catering Association vs. Mwanza Municipal Director High Court of Tanzania at Mwanza, Miscellaneous Civil Cause No. 3 Of 1987