1. RULE OF LAW
The Rule of law has number of meanings but generally rule of law means that Government should be conducted within a framework of recognised rules and principles which restrict discretionary power. This means that everything must be done according to law, Government should not exercise its discretionary powers to the extent that it breaches its boundaries on limitation of its powers hence the liberty of every individual being at jeopardy. Being one of the basic constitutional principles, Rule of law was introduced by Sir Edward Coke as a concept when he was a chief justice during King James I was on the throne. This was against the king, he maintained succesfully that the king should be under God and the law, and he established the supremacy of the law against the executive. There after Dicey developed this theory, and according to Dicey Rule of law is one of the fundamental principle of English legal system, where the doctrine comprises of three elements, that is, supremacy of law, equality before the law and predominance of legal spirit.
Traditionally, Rule of law has been taken to denote absence of arbitrary powers and thereforeone can denounce the increase of arbritary or discretionary powers of the administration and advocate controlling it through procedures and other means.
It is under the principle of the Rule of law, that courts have power to intervene and control administrative action, thus judicial control is the pivot of administrative law to date.
Under Rule of law Executive is regarded as not having any inherent powers of its own but all its powers flow and emanate from the law and this principle plays a vital role in a democratic Government.
Overview of the doctrine of Rule of Law
The rule of law represents one of the most challenging concepts of the constitution. The rule of law is a concept which is capable of different interpretations by different people, and it is this feature which renders anunderstanding of the doctrine elusive of all constitutional concepts, the ruleof law is also the most subjective and value laden.
In the current world the notion of rule of law is a vital phenomenon, the rule of law is very important in any democratic state. Aristotle once argued that “The rule of law is better than that of any individual." Also to emphasize on that Lord Chief Justice Coke quoting Bracton said in the case of Proclamations , "The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King".
Rule of Law in Tanzania
The concept of "rule of law" per se says nothing of the "justness" of the laws themselves, but simply how the legal system upholds the law. As a consequence of this, a very undemocratic nation or one without respect for human rights can exist with or without a "rule of law", a situation which many argue is applicable to several modern dictatorships. However, the "rule of law" is considered a pre-requisite for democracy, and as such, has served as a common basis for human rights discourse in many countries.
Professor Albert Dicey in his treatise, identified three principles of constitution which when combined together they form the rule of law:
The absolute supremacy of predominance of regular law as opposed to the influence of arbitrary power; Equality before the law of all classes of people to the ordinary law of the land administered by ordinary courts; and the law of the constitution is the results of rights of individuals as defined and enforced by the courts.
A clearer understanding of the rule of law can be seen when Government (the executive) cannot exercise power which is not authorized by the law, effectively constraining government power.
In the case of ENTICK V. CARRINGTON, a warrant to search and seize private papers for alleged seditious writing was held to be illegal. According to Lord Bridge of Harwich he said that; “There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself”, in R V. HORSEFERRY ROAD MAGISTRATES' COURT, ex parte BENNETT where the House of Lords decided a trial could not go ahead where someone was improperly extradited to the UK to face charges.
Lord Griffiths said in the same case “if the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behavior that threatens either basic human rights or the rule of law”.
Dicey’s second principle has the resounding title of ‘equality before the law'. Which means; no man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. This reflect the famous quote by Thomas Fuller; “Be you ever so high, the law is above you”. This held that the government and its officials should not have any special exemptions or protections from the law. Dicey claimed that “every official … is under the same responsibility for every act done without legal justification as any citizen”.
In M V. HOME OFFICE, it was held that the executive was not above the law and that the Secretary of State was not entitled to claim Crown immunity. Dicey also did not like the French system where government activities were dealt with by separate administrative courts. He considered this to be too partial to the government and inferior to ordinary courts of law.
The final principle concerns Individual rights. There is no need for a Bill of Rights because the general principle of the constitution is the result of judicial decisions determining the rights of the private person. The courts protect them in their decisions by developing the common law in a way that respects individual liberty. Parliament legislates on particular problems. In contrast, Bills of Rights are documents which promise all sorts of rights. These promises are so general and capable of so many meanings that they are meaningless. Again, the Bill of Rights might not be respected by the government and might be unenforceable. This reveals Dicey's belief that the common law affords greater protection to the citizens than a written constitution.
The present-day rule of law is not far from that of Dicey. The Rule of Law insists that any government should be governed by law. The government should be given power (public power) but these powers should not be too wide, there must be legal limit to govern this power. Professor Wade in his book proposed that “every power has legal limit”, he argued that were there is violence of rule of law by the executive it acts contrary to the law which infringe justice the court will denounce it to be unconstitutional ,this emphasizes rule of law .It was further argued that when the law does not uphold justice then there is no rule of law ,Example The Apartheid regime in South Africa, the state acted according to law but it was injustice since it was discriminative in nature ,hence no rule of law.
Mostly important is that, for the existence of rule of law there must be existence of some important constitutional doctrines which are; Separation of powers, Independence of Judiciary and Ministerial responsibility. These doctrines altogether form a bond in which a democratic government shall conduct its activities in accordance with the principle of rule of law. These principles in Tanzania jurisdiction are duly and basically entrenched in and form the provision of Article 13. It is the principles of Fundamental rights that simply translate into the rights of all citizens to be governed under the same known laws and the right to seek redress using the same known and acknowledged processes, eschewing any form of arbitrariness and unfairness.
This provision inter alia provides for presumption of innocence to all people, Nobody should be punished for an act which was committed when it was not a crime/offence (retrospective effect), also it guarantees fair hearing of the cases (there must be equality even if one party is the government), also the laws must be imposed to the public so that all people should know the law.
Extent of the principle of rule of law in Tanzania and its enforcement in the country in ensuring proper administration: -
The principle of Rule of Law is a fundamental principle of contemporary system of a proper administrative system in the world, the rule of law can generally be classified into internal rule which corresponds to the limitations of the administrative powers and external legality which is concerned with the regulation of administrative powers and legality of derogation which applies in periods of emergencies.
In Tanzania the development of the Rule of Law can be grouped in to two major phases, before 1984 and after 1984, whereas before 1984 the Constitution of united republic of Tanzania of 1977 had no Bill of Rights, and for that rule of law in Tanzania during the time was impotent.
That before 1984 the bill of rights in Tanzania was found only in the preamble of the Constitution of Tanzania of 1965 up to 1977 and in a legal sense preamble does not form part of the constitution and in other , preamble is not enforceable and this is shown in the case of HALIMALI ADAMJI V E.A POSTS AND TELECOMMUNICATIONS LTD , in this case a Tanzanian Asian by origin was compulsory retired in order to facilitate Africanization in government sector sector. The claimant argued that the policy of Africanization was discriminatory in on ratio basis hence it was not against the rule of law, basing on that argument the Asian petitioned on the court of law and the court held that the preamble of the Constitution is not enforceable and for that the argument failed.
After the year 1984, the Bill of Rights which provides for freedom and rights of individuals was firstly introduced in the constitution of the united republic of Tanzania of 1977, through the 15thamendments of the constitution of 1984.
The amendments inter-alia incorporated the Bill of Rights in the Constitution and hence giving rule of law force of law in the country, although Bill Rights was incorporated in the constitution of in 1984 it came in to force from march 1988 and ever since march 1988 up to now the rule of law is part of the basic laws of the land in Tanzania.
There is now party 2 of chapter 1 of the constitution of Tanzania of 1977 which provides Bill of Rights or fundamental rights or individual rights which is rule of law,this part provides for objectives and the directive objective of state policy, the fundamental right, individual rights, and Bill of Rights has been enshrined from article 11 to Article 24 of the Constitution of United Republic of Tanzania.
The most important provisions related to fundamental rights in the Constitution of United Republic of Tanzania are two, right to life which is the most important right of all individuals rights and freedoms as provided under article 14 of the constitution however this right has been provided with some limitation as provided also under Article 14, and also equality of citizens before the law, that the constitution recognize also equality of all person before the law without any discrimination under Art 12 & 13 (1) of the constitution. In Tanzania the rule of law is enforceable in any case where an individual is curtailed his basic freedom and rights he may petition to the high court. This is provided for under article 30 (3) of the constitution. Again there is another statute which set out procedure to enforce basic right and freedom of individuals this statute is known as the Law Reform Fatal Accidents And Miscellaneous Provision Act, using article 30 (3) of the constitution and the Law Reform Fatal Accident And Miscellaneous Provision Act any citizens may enforce his basic rights and freedom in the high court of Tanzania.
There are several cases which exemplify this; in NHC V TANZANIA SHOE COMPANY the case envisages the procedures to enforce the basic fundamental right. According to the case enforcement of basic fundamental right is by way of petition which is filed in the high court which is the first court of instance. Also the question of knowing who has the right to petition when there are infringement of fundamental basic rights was answered in the case of rev CHRISTOPHERMTIKILA V A.Gwhereas in the case interalia, the issue was who has the locus standi in matter of infringement of fundamental basic right the high court answered the question by stating that any person who has sufficient personal interest over and above the interest of general public may be a bonafide litigant even where he has no personal interest in the matter.
There are few examples which may be cited to substantiate the notion that in Tanzania the rule of law plays the great rule in ensuring proper administration, there are some indication in Tanzania including the followings,
§ The first indicator is the potent power of the judiciary to declare any Act of the parliament or any provision of the act of parliament or any part of customary or whole of customary law invalid if they are discriminatory or contradict the Constitution is an indicator which evidence the existence of rule of law in Tanzania. This can be exemplified in the case of EPHRAIM EBONGO V. HOLARIA PASTOR & ANOTHER.
Also, in July 2008 the then minister of U.R.T Hon Maua Daftari was sued personal in court of law for tort. This indicates that there is equality before the law, that everybody is subject to the ordinary law of the land in respect of the statuteand that all people are tried in the same tribunal without being specialized to some kind of people.
The three principle of natural justice has been incorporated as a part and parcel of legal system in Tanzania and the judiciary recognizes them and they are interpreted accordingly as imperative legal procedures and requirement in adjudication of various cases in court. In a great extent this has also take a great part in proper administration system which adhere to the principle of rule of law.
Also from the wording of Article 30(3)of the Constitution which states that ‘any person claiming that any provision in this Part of this chapter or in any law concerning his right or duty owed to him has been, is being or is likely to be violated by any person anywhere in the United Republic, may institutes proceedings for redress in the high court’’, provides existence of legal procedure to invalidate any act of the parliament and to invalidate any action of the executives under the Fatal Accident Miscellaneous Provision Act is another evidence of the existence of the rule of law in Tanzania in ensuring the proper administration system.
In general, the doctrine of Rule of Law entails three things. First of all it means supremacy of regular law as opposed to wide discretionary powers in part of administration, second is the equality before the law whereby everybody should be subjected to the laws of the land, and lastly the predominance of legal spirit whereby whenever an individual’s right is infringed, it should be remedied by the court of law. The doctrine of Rule of Law has been very essential in Tanzania. It has helped to ensure proper administration in the country and above all, preventing despotism. Rule of Law on the other hand has brought about equality to all people.
Challenges on the application and development rule of law
That being the case in most cases the most of the factors for prevalence of rule of law also acts as barriers for expansion of the rule of law in many countries, for example if the doctrine of separation of powers is applied in a strict way it is obviously impossible to take certain actions.
This means if the legislature can only legislate then it cannot punish anyone committing a breach of its privilage, more can it delegate only legislative function even though it does not know the details of the subject matter of the legislation and the executive authority has experienced over it nor could the court frame rules of procedures to be adopted by them for the disposal of cases.
Modern states are the welfare states and its have to solve many complex social economic problems and in these states of affairs also it is not possible to stick to this doctrine as justice Frankfurther said and`enforcement of a rigid conception of separation of powers would make modern Government impossible, strictly separation of powers is a theorical absurdity and practical impossible’.
Also, parliamentary supremacy is the other obstacle to the rule of law, that is to say when you talk about rule of law it means judiciary should be free but when the judicial review is not exercised in a manner it is supposed to be then it is against the rule of law. Judicial review is the only strong tool the judicial use to control the administrative actions.
The Acts of parliament powers the jurisdiction of the court and exclusion clause are all about restricting the prevelence of the rule of law as it was in the case of Haruna S/O Nchama And Another V. Republic , where Mwaikasu J. held that at this juncture I must point out that this appeal was wrongly admitted the act complained of was principally an administrative once his enquiry is final and therefore cannot be appealed against it is only by way of an application for judicial review that the order complained against could be challenged for illegality or want of jurisdiction therefore such prerogative orders could then issue in respect of such order of the lower court.
2. SEPARATION OF POWER
Separation of power, is all about distribution of functions of the Government under three pillars, that is to say, the executive has no right to execute the law and also judiciary should not exercise the functions of the other two pillars.
However, the whole the doctrine of separation of powers in its strict sence is undesirable and impractible and therefore it is not fully accepted in any country. Nevertheless its value lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive.
The objective of the Doctrine is to have a Government of law rather than the official will or whim. Montesquieu’s great point was that if the total power of Government is divided among autonomous organs, one will act as a check upon the other and in the check liberty can survive.
Again, almost all the jurists accept that the most important aspect of the doctrine of Separation of powers is judicial independence from administrative discretion.
It shows that inorder to have Rule of law you must have separation of powers, for example in the case of Mwalimu Paul John Muhozya v. A.G ,the issue was separation of power and the court held that the balance of power between the three branches of government namely the legislature, executive and judiciary and the relation of the court to the other branches must be carefully maintained.....one branch of Government should not usurp the powers of another branch.
There is no liberty if the judicial power be not separated from the legislative and the executive under Article 4 provides the doctrine of separarion of power for prevelence of rule of law. That is how a democratic government behaves, as it is supposed to observe the separation of powers to its three organs of a government. However, when it comes to an authoritarian kind of a government, one can clearly see from its way of conduct that in an authoritarian kind of government, there is no observation of separation of powers.
All powers are centred on one person or a group of people, or where the are three organs, all are subject to the commands made by one person or a small group of people.
The origin of the doctrine of separation of powers
States throughout history have developed concepts and methods of separation of power. In England, parliament from its origins at least seven centuries ago was central to an struggle for power between the original executive (the monarch) and the councils of landowners, church leaders and commons.
Similarly judges, originally representing the executive, developed increasing independence. Parliament was a significant force in an increasingly mixed form of government by the time of the Tudors and soon afterwards was directly challenging the doctrine of the divine right to power of the Stuart monarchs.
The English Civil War (1642-60) between parliament and monarchy resulted in the monarchy continuing but under an arrangement which established not only parliament’s legislative authority but also opened the way to the development of the cabinet government.
In his Second Treatise of Civil Government, English philosopher John Locke (1632-1704) noted the temptations to corruption that exist where “... the same persons who have the powers of making laws to have also in their hands the power to execute them ... “. Locke’s views were part of a growing English radical tradition, but it was French philosopher, Baron de Montesquieu (1689-1755), who articulated the fundamentals of the separation doctrine as a result of visiting England in 1729-31.
In his book of Del’Esprit des Loix or The Spirit of Laws (1748), Montesquieu considered that English liberty was preserved by its institutional arrangements. Montesquieu state that:
“When the legislative and executive powers are united in the same person, or in the same body of magistrate there can no be liberty, again there is no liberty if the judicial powers be not separated from legislative and executive.
Miserable will be where the same man or the same body weather of nobles or of other peoples to exercise those three powers of enacting the law, executing public resolution and judging the crimes”.
§ He saw not only separations of power between the three main branches of English government, but within them, such as the decision-sharing power of judges with juries; or the separation of the monarch and parliament within the legislative process.
Also other people like Wadey and Phillips who to them the concept of separation of power meant that there are three different things; one; the same person should not form part of more than of three organ of the government example ministers shall not sit in the parliament, second; one organ should not control or interfere the function or the work of another organ example judicially should be independent from executive, and third that one organ of the government should not exercise the function of another example ministers should not have legislative power.
The phrase ‘separation of powers’ is ‘one of the most confusing in the vocabulary of political and constitutional thought’. According to Geoffrey Marshall (1971:97), the phrase has been used ‘with varying implication’ by historians and political scientists, this is because the concept manifests itself in so many ways.
In understanding the concept of ‘separation of powers’ one has to take on board the three approaches i.e. traditional (classical), modern (contemporary) and Marxist-Leninist approaches.
a) Traditional (Classical) approach
The traditional views are presented by Montesquieu who vigorously advocated for a “strict or pure or total or complete or absolute” separation of powers and personnel between three organs of the state i.e. the Executive, Legislature and Judiciary. Power being diffused between three separate bodies exercising separate functions with no overlaps in function or personnel.
In Montesquieu’s days the monarchy in France had established despotism and the people enjoyed no freedom. The monarchy was the chief law giver, executor and the adjudicator. The statement by Louis XIV that “I am the state” outlined the character and nature of monarchical authority.
v Montesquieu’s strict doctrine (tripartite system).
In every government there are three sorts of power i.e. legislature, executive and judiciary. The executive, makes peace or war, send or receives embassies, establishes the public security and provides against invasions. The legislature, prince and magistrate enact temporary or perpetual laws and amend or abrogate those that have been already enacted. The judiciary, punishes criminals, or determines the disputes that arise between individuals.
Montesquieu warned his countrymen about the danger of vesting all state powers in one person or body of people, That concentrated power is dangerous and leads to despotism of government (tyranny);
Legislature should not appoint members of the Executive i.e. Parliament should not elect the President or the Prime Minister; and for the same reason the Executive should not have a role in electing members of the Legislature. Neither the Executive nor the Legislature should appoint members of the Judiciary, for if they do the Judiciary will lose its independence. Again, judges should not appoint members of the Executive.
That it is the people who should elect members of executive, legislature and judicial officers. State officials should not form part of or belong to two or more organs. He argued, if separate powers of government are placed in different hands, no individual or group of people can monopolize political powers (i.e. differentiation of functions). Thus, he was against absolute power residing in one person or body exercising executive, legislative and judicial powers.
To him, the state will perish when the legislature power become more corrupted than the executive. He based this model on the Constitution of the Roman Republic and the British constitutional system. Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power.
He (mistakenly) believed that the English constitution establishes functional separation between the legislature, executive and judicial powers. In England, the monarch exercises executive powers, legislative power are shared by hereditary nobility and the peoples’ elected representatives, judging powers vested in persons drawn from the body of the people. His ideas were highly influenced by his stay in England between 1729–1731.
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