QUESTION:
“Due to the
adoption of written constitution in Tanzania and the early inclusion of the
doctrine of separation of powers to its full extent, it has been a fundamental
principle that that every governmental function or power can and must be
classified as either executive, legislative or judicial, must be assigned to
its proper department and be exercised there, and that any attempt to give it
to a different department, or to mingle powers belonging to two or more
departments in one officer or body, is unconstitutional and void.” Anonymous
In light of the above
quotation, discuss with the aid of legal authorities the extent to which
administrative tribunals are bound to give reasons for their decisions in
Tanzania.
Tanzania
being one of the democratic countries exercises the principle of separation of
powers in its administrative and legal system, as provided under Article 4 of
the Constitution of United Republic Tanzania[1]. Nevertheless, due to the
growth and expansion of the state’s functions and human needs, there has been a
relaxation on the implementation of the principle of separation of powers.
Judicial powers and functions have recently been done and exercised by the
executive through its established bodies named administrative tribunals. Administrative
tribunals have been defined by various scholars to mean, a person or body of
persons or administrative agency not forming part of the judiciary, with
limited statutory powers to determine disputes and pass binding decisions
between individuals, or government against its officers and vice versa[2]. These tribunals are
established under various enactments in Tanzania including The Public Service
Act[3], The
Local Government (District Authorities) Act[4], Land Act[5], Land
Disputes Courts Act[6] and several other
enactments.
Administrative
tribunals possess some, but not all, of the powers and protections of the court
that’s why they’re referred in some cases as quasi-judicial bodies. They
are of many forms and are established by enactments to adjudicate special kind
of disputes and they’re given statutory powers to conduct hearings and
determine disputes, interpret the statutes and regulations that govern their jurisdiction,
and make rules and regulations governing the conducts of their subjects. The
powers of administrative tribunals are not general as those of actual courts,
but are limited to specific subject matter areas i.e employment, commerce, land
disputes, tax disputes, military matters such as court martial and environmental
tribunals. Some vivid examples of these administrative tribunals which are
established by our domestic laws include Ward and District land and Housing
Tribunals established under section 10 and 22 of Land Disputes Courts Act, Tax
Revenue Appeal Board and Tax Revenue Appeal Tribunal established under section
4 and 8 of the Tax Revenue Appeals Act[7] etc. The hearing and
adjudication procedures of administrative tribunals are less formal compare to
those of an actual court.
2.0
MAIN BODY
The
basis for establishment of administrative tribunals is rooted in the need to
provide specialized expertise and dispute resolution mechanisms in areas of law
that are too complex for generalist courts. The administrative tribunals
operates legally because they’re established by state laws and they’re not
bared by any law or provisions of the constitution of Tanzania. Article 13(3)
of the Constitution of United Republic of Tanzania provides that, “the civic rights, duties and interests of
every person and community shall be protected and determined by the courts of
law or other state agencies established by or under the law”. This means
that, judiciary is a primary body given powers to adjudicate matters, but adjudication
functions may be delegated by court to other government organs or departments
through enactment and its adjudicating functions will be of the same effect as
that of actual court[8].
This
article is discussing the basis for administrative tribunals, it compares and
contrasts rules governing proceedings before court against those of tribunals.
It also examines extent to which administrative tribunals are bound to give
reasons for their decisions in connection to a doctrine of separation of
powers. Does the establishment of administrative tribunals violate a doctrine
of separation of powers?
The constitutional principle of separation of powers
requires that, three organs of the state: the executive, the legislature, and
the judiciary to perform its duties and functions separately without
interference from one another. Administrative tribunals are typically
considered part of the executive branch, but they exercise quasi-judicial
functions that are traditionally associated with the judiciary. Therefore, the
establishment of administrative tribunals may raise concerns about the
separation of powers but cannot violate the principle of separation of powers,
as long as the tribunals’ awards are subject to judicial review and their
decisions are not final. This means that if a party disagrees with a decision
made by an administrative tribunal, they can seek review of that decision by a
court, which can then assess whether the tribunal acted within its jurisdiction
and according to the law.
On
the other hand, Mushi E.G,[9] observes that, the fact of
establishing tribunals and other quasi-judicial bodies and assigning them
functions does not by itself constitute a violation of the doctrine of
separation of power. The extent of the powers given to these bodies, the
controls to which they are subject and the authority which has the final say on
what they are assigned to do are all important matters to be considered in
determining whether the doctrine of separation of power has been violated or
not. The Executive branch is given judicial powers subject to control of
judiciary and as long as the tribunal obey the basic standards of fairness laid
down by the law and so long as the courts is able to revisit their decisions.
ADMINISTRATIVE
TRIBUNALS: BASIS TO GIVE REASONS FOR THEIR DECISIONS IN TANZANIA
Principle of natural justice.
A
requirement to give reasons for the decision by administrative tribunals is
based on the principles of natural justice and procedural fairness, and it
ensures that parties who are affected by the tribunal's decision or award have
a clear understanding of the basis for that decision. In Tanzania, the
requirement for administrative tribunals to give reasons for their decisions is
supported by both the Constitution and Criminal
Procedure Act[10]. As per section 311(a) of
CPA on contents of the judgment, “any judgment……. shall contain the point or points for
determination, the decision thereon and the reasons for the decision, and shall
be dated and signed by the presiding officer as of the date on which it is
pronounced in open court:”
Article
13(6)(a) of the Constitution[11], “when the rights and
duties of any person are being determined by the court or any other agency,
that person shall be entitled to a fair hearing and to the right of appeal or
other legal remedy against the decision of the court or of the other agency
concerned”.
Basing
on two above provisions, every person who has been subjected to trial has the
right to be heard and to be given reasons for a decision that affects them so
as to enable them to take care of further legal steps ahead such as appeal,
review and revision. Court proceedings intends to provide justice in a fair manner where parties are given all
options concerning their cases. Failure to provide adequate reasons can result
in a decision being overturned on appeal or judicial review. Therefore, it is
essential that administrative tribunals provide clear and well-reasoned
decisions, supported by evidence and the law, to ensure that their decisions
are fair.
Ensuring transparency and
accountability
Administrative
tribunals are bound to give reasons for their decisions in order to ensure
transparency, accountability and fairness in the administrative process. This requirement
safeguards people from arbitrary or unfair decision making and it is based on
the principles of natural justice, which dictate that parties to an
administrative process are entitled to a fair and unbiased decision-making
process. In The case of Mbwambo v. Tanzania Electric Supply Ltd[12] the court emphasized the importance of providing reasons for the
decision by administrative tribunals and other quasi-judicial bodies. The court
held that “a requirement for reasons in administrative decisions is an integral
part of the concept of natural justice, and the provision of reasons for
decisions is necessary to ensure that decisions are transparent, accountable
and can be reviewed’’
Administrative
decisions are subject to judicial review by the courts, and it is essential
that the courts have a clear understanding of the reasoning behind the administrative
tribunal’s decisions in order to determine whether it was made fairly and
lawfully. The obligation of them to provide reasons is an essential component
of procedural fairness and ensures that parties understand the basic for the
decision and can challenge it if necessary
CONCLUSION
Administrative
tribunals play an essential role in providing specialized expertise and a more
accessible and efficient dispute resolution mechanism for certain areas of law.
They are established under statutory law, subject to the principles of natural
justice and procedural fairness, and their decisions are subject to judicial
review to ensure compliance with the law. Therefore, the establishment of
administrative tribunals is constitutional, as long as they are subject to
judicial review, and their decisions are well-reasoned and supported by
evidence and the law. Furthermore, administrative tribunals must provide
reasons for their decisions to ensure transparency, accountability, and fairness.
By meeting these requirements, administrative tribunals can help promote the
rule of law and ensure access to justice for individuals and communities,
particularly in areas of law that require specialized expertise.
BIBLIOGRAPGHY
BOOKS
Byabato,S.(2016) Mal
-Administration of Justice By Ward Tribunals In Tanzania: An Assessment of
Their Legal Setup,Mzumbe University,Morogoro, P.1 & 4.
CASE LAWS
Mbwambo v. Tanzania
Electric Supply Ltd (2006) TLR 290
LEGISLATIONS
Criminal Procedure Act
[Cap. 20 R.E. 2022]. S.311(a).
Land Act [Cap 113 R.E
2019].
Land Disputes Courts Act
[Cap 216 R.E 2019]. S. 10 & 22
Public Service Act [Cap
298 R.E 2019].
The Local Government
(District Authorities) Act [Cap 287 R.E 2009].
Tax Revenue Appeals Act
[Cap 408 R.E 2019]. S. 4 & 8
The Constitution of the
United Republic of Tanzania of 1977 as amended. Art 4
OTHER SOURCE
Jaba,
S. (2011). “Administrative Tribunal in Tanzania”. Public Presentation held at
The University of Dar Es Salaam, Dar Es Salaam. (Unpublished paper).
Mushi,
G.E. (2009). Judicial Review and the Changing Trends in Public Administration:
An Assessment of the High Court Response in Mainland Tanzania. Unpublished
doctoral dissertation, Mzumbe University Morogoro.
[1] The Constitution
of the United Republic of Tanzania of 1977 as amended. Art 4
[2] Jaba, S. (2011). “Administrative
Tribunal in Tanzania”. Public Presentation held at The University of Dar Es
Salaam, Dar Es Salaam. (Unpublished paper).
[3] Public Service Act [Cap 298 R.E 2019].
[4] The Local Government (District
Authorities) Act [Cap 287 R.E 2009].
[5] Land Act [Cap
113 R.E 2019].
[6] Land
Disputes Courts Act [Cap 216 R.E 2019]. S. 10 & 22
[7] Tax Revenue Appeals Act [Cap 408
R.E 2019]. S. 4 & 8
[8] Byabato,S.(2016) Mal
-Administration of Justice By Ward Tribunals In Tanzania: An Assessment of
Their Legal Setup,Mzumbe University,Morogoro, P.1 & 4.
[9] Mushi, G.E. (2009). Judicial
Review and the Changing Trends in Public Administration: An Assessment of the
High Court Response in Mainland Tanzania. Unpublished doctoral dissertation, Mzumbe
University Morogoro.
[10] Criminal Procedure Act [Cap. 20
R.E. 2022]. S.311(a).
[11] Ibid, Article 13(6)(a)
[12]Mbwambo v. Tanzania Electric Supply
Ltd (2006) TLR 290
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