ADMINISTRATIVE LAW

ADMINISTRATIVE JUSTICE, SEPARATION OF POWERS AND
JUDICIAL DEFERENCE: EXPERIENCE FROM TANZANIA
I: Introduction:
It is well known that judicial review is a very important power in the hands of judges to
controlling the administrative actions of public bodies. However, while exercising their
judicial powers in redressing the grievances against any kind of administrative injustice,
courts are also supposed to observe their constitutional limitations and be very careful
and see that their actions do not encroach upon the areas reserved by the Constitution to
the Executive and the Legislature. Because of this therefore, judicial review is with
fraught with challenges to be faced by the judges since the process entails trying to strike
a balance between separation of powers and judicial independence which are expressly
protected in the Constitution.
The purpose of this article is to explain first how the system of administrative justice
operates in Tanzania and how the judges adhere to the principles of separation of powers
and independence of the judiciary under the Constitution of our country.
II: Administrative Justice in Tanzania:
Administrative justice system in Tanzania is the result of the Constitutional rights
provided for in the Bill of Rights. It is to be found from various other sources.1 For the
purpose of ensuring equality before the law, relevant organ of state has been enjoined to
1 Apart from the Constitution, it is also provided for in different sectoral laws and largely
expounded by case law.
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follow necessary procedures which are appropriate to the situation and or which take into
account various principles. One such principle which is applicable to administrative
justice field provides:
‘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.’2
The phrase ‘any other remedy’ in the above provision has been interpreted to envisage
the right to judicial review.3
The above right has become meaningful by the right of access to justice. Access to courts
of law is a constitutional right. Article 13 of the Constitution of the United Republic of
Tanzania guarantees equality before the law to all persons generally. Sub article (3) of
article 13 of the Constitution 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. In the case of Ndyanabo v Attorney-
General4, the Court stated:
‘That the Constitution rests on three fundamental pillars namely (1) Rule of Law; (2)
Fundamental Rights and (3) independent, impartial and accessible judicature. These
three pillars of the constitutional order are linked together by the fundamental right of
access to justice… it is access to justice which gives life to the three pillars. Without
that right the pillars would become meaningless, and injustice and oppression would
become the order of the day.
2 Section 13(6) (a) of the Constitution.
3 James F Gwagilo v. Attorney General (1994) TLR 73, p 78.
4 (2002) AHRLR 243 (TzCA 2002
2
Access to courts is, undoubtedly, a cardinal safeguard against violations of one's
rights, whether those rights are fundamental or not. Without that right, there can be no
rule of law and, therefore, no democracy. A court of law is the `last resort of the
oppressed and the bewildered'. Anyone seeking a remedy should be able to knock on
the doors of justice and be heard.’5
III: Judicial Deference and Separation of Powers:
Since the two concepts are interrelated, one cannot therefore talk about judicial deference
without touching on the concept of separation of powers. The Constitution of the United
Republic of Tanzania6 provides for the exercise of state authority for each of the three
organs and consequently expressly provides for the doctrine of separation of powers and
guarantees the integrity and independence of judiciary.7
The Tanzanian Court of Appeal had commented on the importance of separation of
powers in Tanzania by pointing out that the division of state powers into three organs
5 Ibid.para 27.
6 The Constitution of the United Republic of Tanzania of 1977.
7 The preamble of the Constitution provides, in part, that the Executive is accountable to a
Legislature composed of elected members and representative of the people, and also a Judiciary
which is independent and dispenses justice without fear or favour, thereby ensuring that all
human rights are preserved and protected and that the duties of every person are faithfully
discharged.
And section 4 (1) and (2) of the Constitution provides as follows:
‘(1) All state authority in the United Republic shall be exercised and controlled by two
organs vested with executive powers, two organs vested with judicial powers and two
organs vested with legislative and supervisory powers over the conduct of public affairs.
(2) The organs vested with executive powers shall be the Government of the United Republic and
the Revolutionary Government of Tanzania Zanzibar; the organs vested with judicial powers
shall be the Judiciary of the United Republic and the Judiciary of Tanzania Zanzibar; and the
organs vested with legislative and supervisory powers over public affairs shall be the parliament
of the United Republic and the House of Representatives of Zanzibar.’
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constitutes the basic structure of the Constitution of the United Republic and it is an
important safeguard against any abuse of public order laws by any state organ:
‘…it is the basic structure of a democratic constitution that the power is divided and
distributed between three state pillars. These are the executive, vested with executive
power; the legislature vested with legislative powers; and the judicature vested with
judicial powers. This is clearly so stated under Article 4 of the Constitution. This
basic structure is essential to any democratic constitution and cannot be changed or
abridged while retaining the democratic nature of the constitution.’8
It is imperative therefore for the judiciary to be able to play an essential role to ensure
that executive and legislative powers are exercised in accordance with the democratic
nature of the Constitution. It is submitted however that, by doing so, the judiciary does
not encroach into functions of other organs but rather, it is a means of controlling and
checking the abuse of public power. Judicial review is one of the mechanisms in the
hands of judges in Tanzania by which an ordinary citizen can challenge unjust
administrative action. The courts derive this power from the Constitution and other
ordinary laws.
However, in exercising judicial review powers, courts have always been very cautious.
For example, in the case of Rev.Chrispoher Mtikila v. The Attorney General,9 the High
Court stated that:
‘The function of courts of law is to settle legal questions. We therefore have the
doctrine of separation of powers under which the executive, the legislature and the
8 Attorney-General v Lohay Akonaay and Another (1994) 2 LRC 399.
9 Civil case No 5 of 1993.
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judiciary are as far as possible assigned different duties and enjoined not to trespass
into each other’s field. In contemporary times executive activism has tended to blur
this separation and this has in turn made it imperative for the courts to stand more
resolutely between the government and the governed. Not infrequently, therefore,
courts will interfere in executive action or inaction to protect and promote the rights
of the individual citizen…for the purpose of ensuring the rule of law. Beyond that, the
courts will not go.’10 (Emphasis mine).
There are a number of occasions where Judges (of the High Court and the Court of
Appeal) have displayed awareness on their part to avoid trespassing on the spheres
properly reserved for other organs of state. It may be emphasised at this point that the
purpose of judicial review is not to lead the courts to usurp the proper functions of the
executive or the legislature especially in matters concerning socio-economic development
and administration of public finance. In reality therefore, except under special
circumstances,11 normally courts do give attention to cases that involve judicial decisions
only rather than administrative or political decisions. This is also affirmed by the very
nature of judicial review proceedings, which provides that, when seized with the matter
involving judicial review, a court is not sitting as an appellate body which has to go into
the merits of the decision, but rather it is confined to the legality of the decision only, that
is, process and procedure of decision making. In the case of Sheikh Mohammad Nassor
Abdulla v The Regional Police Commander (D’salaam) and two others,12 the court stated
10 Ibid.p 2.
11 For example, breach of fundamental human rights.
12 (1985) TLR 1.
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that:
‘No doubt that the writ… can be used to challenge even the act of the Executive if
that act unjustifiably infringes upon the liberty of the subject. In being seized of the
matter a court is not sitting in appeal as such. It is merely concerned to find out for
certain whether or not the act of the Executive is in line with the law of the land.’13
IV: Judicial Deference: Law and Practice:
Although the concept of judicial deference is not provided explicitly in the Constitution
or other ordinary statutes in Tanzania, it can be implied from them, and for the sake of
convenience, they will be quoted in extenso. Furthermore, although courts have not
articulated expressly the concept of judicial deference, they have shown unwillingness to
deal with matters not within their legal and constitutional competence and therefore have
referred the matter in consideration to the relevant authority to deal with it accordingly.
In so far as judicial deference is concerned, article 30 of the Constitution which provides
for limitations upon, and enforcement and preservation of basic rights freedoms and
duties, is of relevance as the practice can be implied from it. Sub-article 5 thereof
empowers the High Court to declare any law or action of the organ of state that offends
the Constitution to be invalid or unconstitutional. It provides as follows:
“Where in any proceedings it is alleged that any law enacted or any action taken
by the Government or other authority abrogates or abridges any of the basic
rights, freedoms and duties set out in Articles 12 to 29 of this Constitution, and
the High Court is satisfied that the law or action concerned, to the extent that it
13 Ibid.p 5.
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conflicts with this Constitution, is void, or is inconsistent with this Constitution,
then the High Court, if it deems fit, or if the circumstances or public interest so
requires, instead of declaring that such law or action is void, shall have power to
decide to afford the Government or other authority concerned an opportunity to
rectify the defect found in the law or action concerned within such a period and in
such manner as the High Court shall determine, and such law or action shall be
deemed to be valid until such time the defect is rectified or the period determined
by the High Court lapses, whichever is the earlier.”
The above provision of the Constitution is underpinned by the provisions of the Basic
Rights and Duties Enforcement Act.14 The Act provides for the basic procedure to be
complied with in the enforcement of basic rights and duties as required by section 30(4)
of the Constitution.15 Section 13(2) (a) of the Act provides as follows:
“(2) Where an application alleges that any law made or action taken by the
Government or other authority abolishes or abridges the basic rights, freedoms or
duties conferred or imposed by sections 12 to 29 of the Constitution and the High
Court is satisfied that the law or action concerned to the extent of the contravention is
invalid or unconstitutional then-
“(a) The High Court shall, instead of declaring the law or action to be invalid or
unconstitutional, have the power and the discretion in an appropriate case to
14 Act No 33 of 1994. This Act was enacted to give effect to section 30(4) of the Constitution
which required the enactment of a legislation that would regulate procedure for instituting
proceedings for the enforcement of human rights; specify the powers of the Court in relation to
the hearing proceedings instituted pursuant to the section; and ensure the effective exercise of
powers of the High Court, preservation and enforcement of rights, freedoms and duties
accordance with the Constitution.
15 Ibid. Preamble.
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allow parliament or other legislative authority, or the Government or other
authority concerned, as the case may be, to correct any defect in the impugned
law or action within a specified period, subject to such conditions as may be
specified by it, and the law or action impugned shall until the correction is made
or the expiry of the limit set by the High Court, whichever be the shorter, be
deemed to be valid.”
The word action contained in the above provisions is intended to cover administrative
decisions. From the provision itself, it is clear that there is a deemed validity of the
impugned law or action. Between the time when the court makes its decision and the time
when the legislature or executive organ is given an opportunity to rectify the particular
defect, the impugned legislation or action is deemed to be valid.
It can be argued that although the provision can be said to aim at enhancing separation of
powers between the three organs of the state, the deemed validity allowed by the
Constitution can cause problems in certain cases where, for example, the defect is
manifest and incurable. Therefore, it is submitted that, as long as the Act or part of it or
an action is contrary to the Constitution, it should be rendered ineffective with an
immediate effect. This view is supported by the case of Rev Mtikila v Attorney-General.16
In this case, the court used its wisdom and decided not to give the opportunity to the
relevant authorities to rectify the defect but declared the relevant sections of two Acts
invalid with an immediate effect. One of the issues was regarding freedom of assembly.
The Police Force Ordinance and Political Parties Act made it mandatory for a permit to
be sought from and granted by the District Commissioner before one could organize or
hold public meetings. It was found by the court that the two provisions were
16 (1995) TLR 31.
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unconstitutional because both ‘hi-jack the right to peaceful assembly and procession
guaranteed under the Constitution and place it under the personal disposition of the
District Commissioner.’ The court then proceeded to make the following directive:
‘Having held,…, that the requirement for a permit is unconstitutional and void, I
direct the provisions…, and all provisions relating thereto and connected therewith,
shall henceforth be read as if all reference to a permit were removed. It follows that
from this moment it shall be lawful for any person or body to convene, collect, form
or organize and address an assembly or procession in any public place without first
having to obtain a permit from the district commissioner. Until the Legislature makes
appropriate arrangements for this purpose, it shall be sufficient for a notice of such
assembly or procession to be lodged with the police, being delivered to the district
Commissioner for his information.’17
From the foregoing provision, it is submitted that in order to avoid delay of justice and
render the above constitutional provision meaningful, it would be pertinent that when the
court decides to defer to the proper authority to reconsider the matter or otherwise, it
should set a time framework for its accomplishment. One good example can be seen from
the case of IDASA,18 where the court failed to set a time limit for enacting a law. In this
case although the Court saw the need for the presence of specific regulatory framework to
give effect to the right of access to information, but failed to set a time frame within
which the relevant authorities could set the said regulatory framework.
All what has been explained above has been amplified by case law. The following cases
17 Ibid.p 61
18 The Institute for Democracy in South Africa v The African National Congress, the Democratic
Alliance, the Inkatha Freedom Party and the New National Party (2005) (5) SA 39 (C).
9
provide a good elaboration on the clear position of the law:
Ndyanabo’s case19 concerned challenging parliamentary election where the petitioner
was required to pay security for costs. The court declared that provision of law
unconstitutional as they curtailed the right to justice but with respect to the Rules made
under that Act giving effect to payment for the security, the court said: ‘Bearing in mind
the decline of the value of the shilling which has taken place since 1971, when the Rules
were made, it cannot be disputed that that sum is now too little to serve any useful or
practical purpose in terms of providing security for costs, but it is not within the
competence of this Court or any other court, for that matter, to amend the rule.’20
In the case of ADECON,21 the applicants applied to the High Court for orders of
certiorari and mandamus against the Director of Fisheries, Minister of Tourism, Natural
Resources and Environment and the Director-General of the Investment Promotion
Center. The application arose out of the refusal of a fishing license. Acting under the
power vested to him under section 7 of the Fisheries Act,22 the Minister promulgated
Government Notice whereby it was ordered that fishing vessels had to comply with
certain specifications relating to overall length, tonnage and engine power. The
applicants’ vessel was modified for these purposes and although it marginally exceeded
19 Op cit. (note no 4).
20 Ibid.para 49.
21 ADECON Fisheries (T) Ltd v Director for Fisheries and Another [1996] TLR 352, p 359.
22 Act 6 of 1970.The section empowers the Minister responsible for fisheries, to make
regulations for the better carrying out the objects and purposes of the Act and may, by such
regulations, make provisions which, in his opinion, are necessary or expedient for the purpose of
protecting, conserving, developing, regulating or controlling the capture, collection, gathering,
manufacture, storage or marketing of fish, fish products, aquatic flora or products of aquatic flora.
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the maximum length its engine power was reduced to comply with the requirements.
Notwithstanding the modification, the license was not granted on the ground that the
vessel exceeded the specified specifications. The applicants advanced the ground, among
others, that the Notice was unreasonable because there was no scientific proof supporting
the specification made thereunder. But it was argued on behalf of the applicants that the
Notice was not unreasonable as it was sanctioned for the purpose of conserving a
diminishing fishery resource. The court rejected request for an order of certiorari and
ruled that the Notice was reasonable as the Minister acted intra vires.
With respect to the order of mandamus, the court did not only direct the Director of
Fisheries and the Minister to issue the applicants with an appropriate fishing license, but
also set a time limit and the manner of exercising the discretion. This was expressed in
the following terms:
‘But it might be borne in mind that the court is not supposed to use the powers of
other organs with powers vested on them by law. Its duty is only to see that such
powers are properly used. It is only in very rare occasions (if any) when a court can
order specific performance against a government organ. The proper cause is to
declare or rather to direct what is to be done.
In view of this, the first and second respondents are hereby directed to reconsider the
applicant’s application for a fishing license on the basis of fairness, justice and
without bias or discrimination. This is to be done within fourteen (14) days from the
date of delivery of this ruling.’
Courts in Tanzania have gone further by denying to the delegate the power to exercise his
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lawful powers delegated to him by the Minister. One pertinent question to be asked in
this connection is whether, in deferring the matter to the decision maker, the court is
confined to defer it to the same/original decision maker.
In the case of TAS23 the applicant company, aggrieved by the decision of the Labour
Conciliation Board (LCB) re-instating an employee, whose services had been terminated,
referred the matter to the Minister for Labour. The Minister lawfully delegated his power
to deal with the reference to the Commissioner for Labour who confirmed the decision of
the LCB but gave no reasons at all for reaching that decision. The applicant sought an
order of certiorari to quash the decision on the ground that the failure to give reasons
rendered the decision a nullity. The court not only granted the order of certiorari as
prayed for, but also went further making an order of mandamus directing redetermination
of the reference notwithstanding that there was no such prayer in the application. The
court said that it has inherent powers to make the order notwithstanding that there is no
prayer for it.
As to the question to whom the order should be directed, the court stated that an order of
mandamus should be directed to the Minister himself and not the Commissioner. The
basis for this, the court said, was that the nature of delegation does not imply a parting
with powers by the person who grants the delegation.
However, the High Court has demonstrated reluctance in exercising judicial review
powers in certain cases. One of such instances is the power to remove the President if he
23 Tanzania Air Services Limited v. Minister for Labour, Attorney General and the
Commissioner of Labour (1996) TLR 271.
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acts in breach of the Constitution. In the case of Mwalimu P J Mhozya,24 the applicant
filed an application for an interlocutory injunction to restrain the President of the United
Republic of Tanzania from discharging his presidential functions pending the
determination of his civil case. He sought to challenge the decision of the president to
allow Zanzibar to join the Islamic Conference Organization on the ground that the
decision was unconstitutional as the Constitution of the United Republic of Tanzania
would be grossly violated.
It was held by the Court that: the principle that one branch of government should not
encroach on the function of another is a very important principle. Removal or suspension
from office of the President of the United Republic is the legislature’s exclusive
prerogative exercisable in accordance with the procedure for removing or suspending a
President under S.46A of the Constitution.25
The court went further stating that if parliament intended the Court to exercise concurrent
jurisdiction of dealing with political-constitutional offences by the President it would
have said so when enacting the provision.
Basically it can be construed from the above decision that the court declares itself that it
has no jurisdiction to deal with any matter unless expressly conferred on it by the
Constitution or other provisions of the laws. But it is hereby submitted that this
interpretation given by the court is unnecessarily restrictive and therefore it is wrong
because the Constitution confers on the High Court inherent jurisdiction to deal with any
24 Mwalimu Paul John Mhozya v. the Attorney General (1993) High Court of Tanzania, civil
case no 206 of 1993 (unreported).
25 The section provides for the impeachment of the President by the National Assembly.
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matter. With reference to the same problem, for example, it would be difficult to impeach
the President when the parliament is dominated by one ruling party and the party acts
under solidarity. Thus the alternative panacea under such circumstances could be the
judiciary. Courts should not hesitate to invoke their constitutional powers to make
decisions against the President if he makes decisions which are in breach of the
Constitution. This follows from the provisions of section 26 of the Constitution which
provides that:
1) Every person has the duty to observe and to abide by this Constitution and the
laws of the United Republic.
2) Every person has the right, in accordance with the procedure provided by law,
to take legal action to ensure the protection of this Constitution and the laws of
the land.
Despite the existence of the constitutional directive seen above, there are some judges
who are bold enough not to restrain themselves while exercising judicial review powers
over the actions of other bodies. A good example can be observed from the case of John
Mwombeki v the Regional Commissioner & Regional Police Commander,
Bukoba26,Mwalusanya J (as he then was),said:
‘Judicial review is an important weapon in the hands of the judges of this country by
which an ordinary citizen can challenge an oppressive administrative action. And
judicial review by means of prerogative orders (certiorari, prohibition and mandamus)
is one of those effective ways employed to challenge administrative action. It is my
conviction that the courts should not be too eager to relinquish their judicial review
26 (1986) TLR 73.
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function simply because they are called upon to exercise it in relation to weighty
matters of state. Equally however it is important to realize that judicial review is not
the same thing as substitution of the court's opinion on the merits for the opinion of
the person or body to whom a discretionary decision-making power has been
committed. It is for the executive to make administrative decisions. Parliament has
empowered the executive to decide what it thinks necessary. It has to make political
and economic judgments. It may make a sound one or a bad one. The courts might
have been able to make a better one than the executive made; but it must be
remembered that parliament, no doubt for good reason, has not entrusted guidance to
the courts.’27
Another important case is Jama Yusuph v Minister for Home Affaris.28 The applicant filed
an application seeking from the court an order of certiorari to quash an order of
deportation issued against him by the Minister for Home Affairs.29 The ground for an
application was that the Minister acted ultra vires as the Act does not empower the
Minister to deport Tanzanian citizens from the country. It was held that the Minister
acted wrongfully and ultra vires as it was proved to the satisfaction of the court that the
applicant was a citizen of Tanzania.
27 Ibid.p 75.
28 (1990) TLR 80.
29 Section 24 of the Tanzanian Immigration Act empowers the Minister for Home Affairs to
make Deportation Order against three categories of persons to be deported from, and remain out
of Tanzania, either indefinitely or for the period specified in the order. These people are: a
prohibited immigrant; any person (other than a citizen of Tanzania) convicted of an offence and
lastly, any person (other than a citizen of Tanzania) whose continued presence in Tanzania is
undesirable.
15
The court however made a very noteworthy remark which has some bearing on the
concept of judicial deference:
‘It is, of course, not an easy or simple matter to interfere with or, above all, quash a
decision or order of a Minister. In making such decisions or orders, the Minister does
so on behalf of the government, headed by the President. But, as we often say, justice
must be done, even when heaven fall.
Then the court continued to make the following remark, which also touches on the
nature and scope of judicial review generally:
In sum, even though it is not an easy or simple matter to interfere with or quash a
Minister’s decision or order, courts have authority or power, even a duty, to quash
them in proper and fitting cases. In doing so, of course, the courts are not acting as
appellate bodies over the Minister’s decisions or orders; they only investigate the
legality or otherwise of a decision or order and make determinations on these
accordingly. In other words, this power of the courts to review or investigate is not
based on the merit, but on the legality, of the Minister’s decision or order.’30
V: Appropriate Approach:
It has been shown in the above decided case that Courts really strive to strike a proper
balance so as to abide by two important principles: separation of powers and
independence of the judiciary. It should be noted however that too much deference leads
to self-imposed impotence on the part of the judge. Judges should therefore use liberal
and purposive approach construction when interpreting the Constitution and other
provisions of the laws dealing with rights of the people. The words of Mwalusanya, J (as
30 Op cit (note 29), pp 81-82.
16
he then was) are very useful for this point:
“Thus hardly any major decision can be made without a careful evaluation of the
conflicting values and interests. The lot of the judge is thus much heavier but nobler.
the great judge is the one who is prepared to shoulder that burden and make his
decisions as articulate as possible, being a reflection of a conflict before him. It is
tempting to seek escape from the burden of the decision, taking refuge to such
expressions as “it is a political question” or that I have to decide “in the public
interests,” but those rationalizations can hardly take one far. Judges should not
shamelessly exploit their personal prejudices instead of trying to base their decisions
in accordance with their oath of office.
But is the matter before me reserved to the executive alone for decision? Or rather, is
the matter of legality of the detention of the citizen in this case a matter exclusively
for the executive to decide, it being a political question? There are two schools of
thought as to whether there is a political doctrine as such. The first school of thought,
the ‘judicial abstainers’ root the political question doctrine in what seems to be a
rather vague concept of judicial ‘prudence’ whereby the courts enter into a calculation
concerning the political wisdom of intervention in a sensitive area. This school stands
for a hands-off policy on matters which are political in character. They advise that the
court should sedulously avoid meeting contentious issues but should sit in resplendent
dignity, aloof from the perpetual tussle between liberty and authority…however on
my part I subscribe to the other school of thought of ‘judicial activists’ which holds
that any one whose life, liberty or property has been threatened or impaired by any
branch of the government has a justiciable controversy and could properly repair to a
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judicial tribunal for vindication of his rights. Thus this school defines political
questions principally in terms of the separation of powers as set out in the
Constitution and turns to the Constitution itself for the answer to the question when
the Courts should stay their hands-off.
For sure if the judiciary cannot come to the aid of a poor citizen when oppressed, then
its existence is questionable. We can do without it and perhaps create other
institutions for that noble purpose.”31
VI: Conclusion:
The court’s decision to defer or otherwise should, to a great extent, be determined and
guided by the principle of separation of powers. Since Courts are at a central position, it
should be left to them to strike a balance in the exercise of powers of all state organs.
It is well settled that all actions of the executive organs should be open to scrutiny by the
courts, to ensure that their decisions comply with the Constitution, other relevant laws
and general principles of law. Although the law is not well developed/settled in Tanzania,
cases have demonstrated that Courts are at the forefront to attune our law and practice to
judicial review generally and deference in particular, with the contemporary democratic
practices found elsewhere in foreign jurisdictions.
What is important however is that Courts should not misuse such power but rather it
should be used with the aim of achieving proper administrative justice. However it should
be noted that sometimes the decision to defer to other organs of the state depends on the
boldness of the judge. It should be remembered that in the exercise of judicial review
31 Chumchua s/o Marwa v officer i/c of Musoma Prison and the Attorney-General, High Court of
Tanzania at Mwanza, Miscelleneous Crimninal Case No 2 of 1988 (unreported).
18
powers, judge are divided into two categories: the judicial activist judges and
conservative judges. The second category often declares themselves impotent to act and
prefer to defer the decisions to other organs of the state. It is important at this point to
refer to the words quoted by Lord Denning, M.R. (as he then was), who condemns judges
who do not invoke a liberal and purposive approach construction (conservative type):
“There have been those judges who have taken the view that, without usurping the
functions of parliament, a judge has the duty to interpret the law as far as he can, in a
way which accords with social and personal justice, which upholds rather than
destroys the civil liberties of the individual, which looks with suspicion and not
equanimity on the increasing encroachment of that State and other power-groups in
the lives of citizens. There is another kind of judge who sees his task as maintaining
the authority of the state, interpreting Acts of Parliament narrowly, supporting the
words of the law in preference to the justice of the case, and affirming that it is for
Parliament to change a law that turns out to be unjust or absurd and not for judges to
achieve that result through statutory interpretation.”32
It has been opined by others that ‘in such matters where the decision depends on the
value judgment of the matter at issue, the question as to whether those judges were right
or wrong does not arise. What is important is to see the other side of the coin’33, which
advocates that ‘courts should not be too eager to relinquish their judicial review function
simply because they are called upon to exercise it in relation to weighty matters of
32 The Times, 18 December 1979 as quoted by Rt Hon Lord Denning, The Closing Chapter
(1983), p 188.
33 Mwalusanya J L Checking the Abuse of Power in a Democracy: The Tanzania Experience, p
128, in Maina C P,et al (eds) Fundamental Rights and Freedoms in Tanzania (1998).
19
State’34
34 Operation Dismantle v The Queen (1968) LRC (Const) 421, p 440.
20