Judicial control of administrative actions. By Johnson Yesaya

 PRELIMINARY

The doctrine of separation of powers implies that, each organ of the state- executive, legislature and the judiciary exercise separate functions and act as separate bodies.  The executive is vested with powers to implement laws of the state, legislature is vested with powers to make and un-make laws, while judiciary is granted powers to adjudicate disputes/dispensation of justice. The doctrine of separation of powers is among basic constitutional principles provided under Article 4 of the Constitution . All organs of the state are imposed  under Article 4, with exclusive functions which cannot be transgressed by other organs. Checks and balances may be exercised by organs against each other but restricted not to interfere core functions of other organs.

Executive, legislature and judiciary controls each other in a way which abide to doctrine of separation of powers. Executive controls legislature on a basis of president being part of the parliament, president is a part of the parliament as provided under Article 62(1) of the constitution , the parliament is divided into two, president and national assembly, no enactment can be concluded without assent by president hence executive controls legislature on that basis. On the other hand, legislature controls executive through prime minister and other ministers in a parliament. Ministers are answerable to the questions of MPs on the activities of the government, national assembly may order ministers to prepare satisfying answer upon questions of MPs, this is the control of executive by legislature. Also, members of parliament can vote a vote of no confidence against prime minister and impeachment of president by national assembly if they have failed to perform functions of their offices.

Under Article 53A(1), national assembly may vote a vote of no confidence against prime minister if it is clearly proved that prime minister has failed to perform his duties under official capacity. This action is referred to as a control against executive, national assembly seek to see the government perform its function well in accordance to the law and failure to do so may amount to punishment through a vote of no confidence.

A president of United Republic of Tanzania can be impeached through national assembly procedures as provided under Article 46(A) of the constitution. A president who fails to exercise his responsibilities as a president, who committed acts which generally violate Constitution or law concerning ethics of public leaders, who committed acts which contravene the conditions concerning the registration of political parties specified in Article 20(2) of this Constitution, or he conducted himself in a manner which lowers the esteem of the office of President of the United Republic may be impeached by national assembly to protect the interests of the state. This is a control of executive by legislature because through its powers, head of the state can be removed from powers due to reasons stated in Article 46 above.

JUDICIAL CONTROL OF ADMINISTRATIVE ACTIONS

The control exercised by judiciary over the administration is called judicial control, that is the power of the court to keep the administrative acts within the scope of law. It also implies the right of an aggrieved citizen to challenge the unlawful act of administration in the court of law. The basic purpose of judicial control over administration is to safeguard the rights and liberty of citizens by ensuring the legality of administrative acts. “The purpose of legislative supervision is principally to control the policy and expenditure of the executive branch , the end sought by judicial control of administrative acts is to ensure their legality and thus, protect citizen against illegal trespass on their constitutional and other legal rights. Lord Bryce has said that there is no better test of the excellence of a government than the efficiency and independence of its judicial system. Judiciary controls administrative acts through judicial review and statutory appeal;

Judicial review is the review of administrative decision passed by administrative bodies to check its legality and procedural proprietary. if High Court finds that there was lack of jurisdiction to the body which passed decision, error of law, facts and procedures applied in passing a decision, and abuse of authority by officials who passed decision, it may quash that decision, prohibit performance of a particular act by administrative body, compel performance of a particular act by administrative body and other order basing on the circumstances of the case. An order by court of law which quash, prohibit or compel performance of a particular act by administrative body is a kind of control to the executive. By doing that, a court of law reminds executive to abide to the laws of the state to avoid breach of constitution. 

In Festo Balegele and 794 Others v. Dar es Salaam City Council , the applicants were residents of kunduchi mtongani who were seeking Orders of Certiorari, prohibition, Mandamus and costs thereto, to quash the decision of the Dar es Salaam City Council to dump the city's waste and refuse, to prohibit the respondent from continuing to carry out its decision; and to compel the respondent to discharge its function properly by establishing an appropriate refuse dumping site and use it. The court of law ruled on favor of applicants by quashing order of municipal council of dumping wastes along applicants residential areas. 

Statutory appeal refers to an appeal against a decision of a tribunal which has been set up by law to exercise particular powers.  These are appeals allowed by statute, against decision passed by administrative bodies, the statute which grants adjudicative powers to administrative body may allow appeals to High Court or another court as the case may be, against the decision passed by such established administrative body.

Take an example of the Independent Media Council established under section 24 of The Media Service Act  and imposed with powers to hear complaints under section 26(1)(c). The same statute allows aggrieved party (s) to appeal to High Court against decision of the Independent Media Council as provided under section 29(1) of the same statute.

DIFFERENCES BETWEEN JUDICIAL REVIEW AND STATUTORY APPEAL

Judicial review and statutory appeal are two different things, judicial review intends to check the legality of the entire trial held by administrative body. Judicial review checks procedural propriety of the case without deciding rights against the parties. At the end of the review, the court of laws will order re-trial of the matter by the same tribunal or otherwise if finds there was irregularities. Judicial Review is a process by which a court reviews a decision made by administrative body. A public body may be a court, tribunal, government department or other organization. Judicial Reviews are distinct from appeals, in that an appeal is usually brought to challenge the outcome of a particular case.

The procedure of instituting judicial review application is different from a procedure of lodging an appeal. Judicial review application is instituted by submitting chamber summons supported by an affidavit made under requirements provided under Civil Procedure Code . While statutory appeal are instituted by filing before High Court, petition of appeal attached with judgment of the administrative body and notice of an intention to appeal. The service of notice of intention to appeal to another party must be adhered to.

WEAKNESS OF JUDICIAL CONTROL OF ADMINISTRATIVE ACTIONS

The courts cannot interfere in the administrative activities on their own accord even if such activities are arbitrary. The problem with court of law is that, the court cannot suo moto interfere illegal activities of executive until a third-party moves a court to interfere government matters. This is one of the weakness of the judicial control of administrative actions. In most of the cases the judicial intervention comes only after enough damage is done by the administrative actions. Even if the courts set right the wrong done, there is no mechanism to redress the trouble the citizen has undergone in the process.

Cumbersome Procedures. Seeking justice through court of law is full of procedures, failure to abide to Procedural requirements in seeking justice may hinder the justice itself. Institution of suits against the government is too Procedural, time and cost consuming. Take an example waiting for 90 days to elapse after expiry of notice to sue government to proceed instituting a plaint is tiresome, some civilians lose interests in their cause due to too much time consumption and cost.

Statutory limitations. Some provisions of the law prohibits court to interfere decision made by government authorities. Take an example of Electoral Commission of Tanzania, the constitution of Tanzania prohibits petition against presidential results of general election. A person who will be announced by electoral commission as a winner is a winner no matter what irregularities occupied election, this is a weakness of judicial control of administrative actions.

CONCLUSION

As discussed above, judiciary cannot act suo Moto on its own accord to interfere government arbitrariness until being moved to do that by a third party. This problem affects well-being of civilians who will suffocate all the time while awaiting a third party to move a court to act upon mistakes by government. There should be amendment of laws to allow court to interfere ultra-vires actions of government on its own accord without waiting to be moved by another party.

REFERENCE

STATUTE:

The Government Proceedings Act  cap 5 R:E 2002

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:

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

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.

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:

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