Delegated legislation, (also referred to as secondary legislatkion or subordinate legislation or subsidiary legislation) is a legislation made by subordinate authority duly authorized by an Act of the Parliament to do so for a certain purpose and they can be orders, regulations or notice or by law.
Section 4 of the Interpretation of Laws Act, defines subsidiary legislations to mean any order, proclamation, and rule, rule of court, regulation, notice, by-law or instrument made under any Act or other lawful authority. Following the provision of the definition provided, it may not be wrong to equate subsidiary legislation to delegate.
The Legal basis of delegated legislations in Tanzania is found under Article 97(5) of the Constitution of the United Republic of Tanzania of 1997 , where according to this Article the parliament is not precluded by the constitution to confer it’s power of making laws to any person or department of government to make regulations having the force of law or conferring the force of law on any regulations made by any person, or any department of Government. Generally, despite the legislature is conferred with powers under Article 64(1) (2), but Article 97(5) of the Constitution of the United Republic of Tanzania as amended time to time empower the parliament to delegate those powers to other organs or department to enact laws.
In that sense, the local government authorities (Urban and Rural) which are established by virtue of Article 145 of the Constitution of United Republic of Tanzania, has given such powers by legislature to make subsidiary legislation on its behalf. For example, section 153, 160 and 168 of the Local Government District Authorities Act, provides legislative power for District authorities to make their own by-law for the people of that specified areas. The same power is enjoyed by urban authorities as it is stipulated by section 88, 89, 90, and 94 of the Local Government Urban Authorities Act.
Therefore, the framework of Tanzania laws shall give room for the parliament to delegate its power of making laws to other organs or people and the rationale for this is to form laws that are more specific and addressing the local variation we have in Tanzania rather than having general laws that pay little attention to local variations. If the framework of laws will prevent the parliament to delegate it’s power there is a danger of missing the crucial role played by delegated legislations, as they have the following advantages: -
Delegated legislation saves parliament time in making the law, as it avoids overloading the limited parliamentary timetable as delegated legislation can be amended and or made without having to pass an Act through Parliament, which can be time consuming. In that sense, therefore changes can be made quickly without the need to have a new Act of parliament a thing that avoids parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation.
Moreover, delegated legislation can easily incorporate expert’s ideas in making law patterning certain matters that are technical in nature. Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. Here, the legislative power may be conferred on experts to deal with the technical problems. For example, matters relating to gas, atomic energy, drugs, and electricity may require expert in a particular field and it’s believed that these experts are found within administrative organs.
Nevertheless, delegated legislation plays a great role to the society at large as it allows the participation of individuals in the affairs of their government. In any democratic state the Constitution of the country, allow people to participate in the affairs of their government. In the United Republic of Tanzania individuals are participating in the affairs of the government and the government is accountable to the people.
Not only that, but also delegated legislation are best in responding to emergence situations. In times of emergency, quick action is required to be taken. Unlike the principal legislations, delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation. For example, in case of eruption of diseases or floods the delegated legislation can be passed quickly to respond to such emergencies.
Furthermore, delegated legislation enables the government to experiment as its practice of enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience. For example, healthcare matters, an experiment may be conducted and in the light of its application necessary changes could be made. Therefore, the delegated authority is in best position to experiment a particular law to people who are likely to be affected by such law and if they appear successful, they can be adopted while the contrary will require some changes.
Last but not least, unlike the principle legislation, delegated legislation is flexible as they may cover situations that the parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Therefore, delegated legislation can easily adopt the ever-changing need of the society such as ban rates or foreign exchange which parliament had not anticipated when they enacted the Act of Parliament.
Despite the fact that delegated legislations have several advantages in Tanzania but such legislations are also characterized by several disadvantages as it shown below: -
Firstly, delegated legislations may be challenged under the supremacy of the enabling Act and the supremacy of the constitution and declared void while principal legislation even if challenged remains valid until parliamentary amendment process. This means that the delegated legislation are subjected to challenges in the courts of law as courts have mandated supervisory control over subsidiary legislation and may nullify such legislation or declare it not compatible with the enabling Act or unconstitutional, hence its disadvantage. This position is affirmed in the case of Attorney General and 2 others v Aman Walid , where Nyalali C.J (as he then was) noted; “The High Court of this country has a supervisory jurisdiction to inquire into the legality of anything done or made by a public authority and private institutions, and this jurisdiction power includes the power to inquire into the legality of an official proclamation by Electoral Commission as it is a subsidiary legislation”
Secondly, delegated legislation sometimes is criticized for violating the doctrine of separation of power, in the sense that by that doctrine making the laws or legislation is the main domain of legislature and therefore with delegated legislation such power will be exercised by other bodies hence violation of doctrine of separation of power. In Tanzania, the doctrine of separation of power is enshrined under Article 4 of the constitution of United Republic of Tanzania of 1977 as amended time to time.
Thirdly, delegated legislations may be inconsistent with the constitution and infringe some people’s rights. This is evident in the case of Nanal Damodar Kanji v Tanga Township Authority , where the accused was convicted after some old papers were found in the street outside his house as it was against rule 25 of the Township Rule. He was convicted without being heard and it was against the provisions of Article 13(6) of the constitution. On appeal it was held that the by-law in question was uncertain, unreasonable and repugnant to the constitution therefore null and void.
Finally, delegated legislations may contain too technical and ambiguous words that possess challenges to the general public to understand what they mean. Since some are formed by technical experts, there is a likelihood of incorporating technical terms or words used in a particular field in delegated legislations that will be difficult to be understood by normal majority in the society.
Generally, despite several advantages delegated legislations possess but they are also characterized by a number of disadvantages and this have led to people grievances and complains on delegated legislation, therefore there is a great need of closely monitoring these delegated legislations in Tanzania so that the problems associated to their operations can be easily tackled and eliminated.
