The extent to which administrative tribunals are bound to give reasons for their decisions in Tanzania.

 

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.

 

 

1.0 INTRODUCTION

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.

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[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