Judicial control of administrative actions. By Johnson Yesaya

 INTRODUCTION

Tanzania is a democratic country with three organs of the state to say executive, legislature and judiciary . The three organs of the state exercise separate functions without interference from each other as provided under Article 4 of the constitution of Tanzania , The executive performs administrative functions and enforcement of laws, making and un-making of laws are powers vested to the parliament while judiciary is vested with powers to dispense justice. The separate powers vested to these organs cannot be transgressed between organs or other state departments, there might be checks and balances which is restricted from interfering the core functions of the other organs.

Organs of the state controls each other in a manner which conform with the doctrine of separation of powers. Executive checks parliament through president who forms part of the parliament by virtual of Article 62(1) of the constitution , the national assembly of Tanzania cannot enact laws on their own without assent by president of bills submitted before him, hence he controls legislature because the national assembly depends on him to conclude most of the duties of national assembly especially making and un-making of laws. 

Parliament checks executive through ministers who are answerable to the questions of members of parliament. Government is under control of legislature because the ministers in parliament who are representatives of the government, are responsible to give answers on the ongoing activities of the government in parliament, and the legislature can recommend what to be done to facilitate government activities, this is the control of executive by legislature. Other circumstances which proves legislature control over executive is a vote of no confidence under Article 53(A)(1) against a prime minister who fails to perform his duties and impeachment of president of United Republic of Tanzania who have proved failure to perform his duties as provided under Article 46(A) of the same constitution.

JUDICIAL CONTROL OF ADMINISTRATIVE ACTIONS

Judicial control over administrative actions is the power of the court to keep the administrative acts within the boundaries of law. Through judicial action, an individual, company or an institution may challenge administrative actions which are un-reasonable, illegal, ultra-vires and made without jurisdiction. Control of administrative actions prevents breach of citizens basic rights and unlawful decisions by administrative bodies which may deteriorate constitution. The court of law controls administrative actions through judicial review and statutory appeal;

Judicial review is the supervisory power imposed to High Court to check the legality of the decision passed by subordinate courts, tribunals and administrative bodies. A party aggrieved by the decision of any subordinate court, tribunal or administrative body may file an application before High Court of Tanzania for review. Judicial review always intends to check the legality and procedural propriety of the entire trial as it was conducted before subordinate court, tribunal or administrative body without deciding rights of parties. A High Court is empowered to quash the entire decision of subordinate court, tribunal or administrative body if it finds that there was procedural impropriety, excess of jurisdiction, fraud, error of law and facts during the hearing and the judgment. 

The High Court may also make an order to prohibit administrative body to continue performing a particular activity, or it may compel a government to perform a duty they failed to perform which resulted to loss or damage to an applicant, and other writs may be made depending to the circumstances of the suit.  These orders reminds government to exercise its functions within scope of the laws hence its a control of executive by judiciary.

The case of Festo Balegele and 794 Others v. Dar es Salaam City Council  is the best example of judicial control over the administrative actions, in this case, the applicants were residents of kunduchi mtongani who were affected by the waste dumping activities by city council in their residential areas. They filed an application 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 applicants succeeded in their application where court ruled in their favor, the decision of the city council were quashed for being against constitutional right to life. 

Statutory appeal is an appeal allowed by statute against the decision passed by administrative tribunal. The administrative bodies or tribunals are established by statutes and given powers include adjudicative powers, the same statutes establishing a particular body may make a provision which allows appeals against decision of that body in case the decisions made are illegal to the eyes of the law. 

For-instance Tax Revenue Appeals Board and Tax Revenue Appeals Tribunal are administrative bodies established under section 4(1) and 8(1) of Tax Revenue Appeals Act  with jurisdiction over tax disputes. These bodies given adjudicative powers to tax disputes and at the same time the same statute provides an avenue for appeal to the court of appeal of Tanzania. Parties who are aggrieved by the decision of the tribunal may appeal to the court of appeal as provided under section 25(1) of the same Act. 

DIFFERENCES BETWEEN JUDICIAL REVIEW AND STATUTORY APPEAL

Judicial review is a process seeking to check the legality of the proceedings held by subordinate court, tribunal or administrative body. The purpose of the review is to approve or dis-approve the legality of the procedures and legal requirements in the trial held by administrative body, tribunal or subordinate court. Judicial review checks legality of the trial without deciding the core rights of parties in a matter while statutory appeal is an appeal which challenge the final judgment of the administrative body. An appeal decides rights of parties in a case while judicial review checks legality of the trial in procedures and other legal requirements. 

Procedures of lodging an application for judicial review is different from the procedure of instituting an appeal. A person aggrieved by decision of administrative body or tribunal may seek review by filing before High Court, a chamber summons supported by an affidavit stating the facts and indicating provisions supporting an application. Instituting appeal is a different procedure, an aggrieved party who wish to appeal before court is required to submits before court, petition of appeal and a notice of intention to appeal must be given to an opposite party before lodging a petition.

WEAKNESS OF JUDICIAL CONTROL OVER ADMINISTRATIVE ACTIONS

Statutory limitations. Judicial control of administrative actions is weak when it comes to statutory limitations, some statutes contains provisions which prohibit court of law to adjudicate matters of a particular nature. Take an example Article 41(7) of the Constitution  of United Republic of Tanzania prohibits court of law to adjudicate any matter concerning validity or legality of an elected president of Tanzania. The Article provide that, “When a candidate is declared by the Electoral Commission to have been duly elected in accordance with this Article, then no court of law shall have any jurisdiction to inquire into the election of that candidate”.

This is a bar to challenge administrative actions before court of law, by the virtual of this Article, a court of law is denied powers to control administrative actions.

The courts cannot interfere in the administrative activities on their own accord even if such activities are arbitrary. A court of law cannot interfere any matter on its own motion without being moved by a third party to do that, this is a weaknesses, a court of law cannot order anything against government until a person requests a court to do that. In most of the cases the judicial intervention comes only after enough damage is done by the administrative actions. They correct government when citizens have already suffered several effects.

A court of law is too procedural. Seeking justice through court of law is full of procedures, failure to abide to procedural requirements in seeking justice may hinder the justice itself. Lodging an appeal before court is procedural, the law requires submission of petition of appeal before court of law, the notice of an intention to appeal must be served to another party before lodging petition of appeal. Failure to serve another party with notice of appeal or failure to file it within reasonable time may led to dismissal of an appeal. In interbest investment company limited v. Standard bank chartered limited  and Dhow Meicantile (EA) Ltd & Others v. Registrar of Companies & Others  the requirement to file notice of an appeal within reasonable time was discussed.

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