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Showing posts with label constitution. Show all posts
Showing posts with label constitution. Show all posts

Relationship between the state and family

constitution , family law

THE STATE AND FAMILY

 Introduction

In this post today we will try to evaluate the relationship between the state and family. We do this by conceptualizing the state and family as partners but also the state as a watchdog, ready to intervene in the family to protect weaker family members. We consider the extent to which the state meets its obligations to the family. The question of what is meant by family is considered especially in the light of changing family forms and family relationships. The lecture examines the growth of non-conventional family forms and family relationships. It wonders whether and to what extent our family law has coped well with these transformations. The question of changing family relationships is considered in terms of the development in science and technology and its impact on family law.


Functions of Family law: Reflections

We began in this course with an analysis of the four functions of family law noting thatthe idea of conceptualizing family law in terms of what it does, rather than merely what it is, enables the student to think more clearly about the subject and to develop an analytical framework that seeks to evaluate the extent to which the law does or fails to perform those functions. We do this with the understanding that law does not work alone. The law works in partnership with other non-state bodies which at times may hinder or enable it to perform its functions. We return to the four functions of family law with the benefit of hindsight to consider briefly whether the analytical framework suggested at the beginning of the course has enabled us to capture the essence of family law as a subject of study.

We ask ourselves the extent to which family law plays a constitutive role and whether it shares this function with religious bodies and non-state institutions including customary law.  Looking at the constitutive function, studies have shown that a large number of marriages are contracted under customary law and many are not registered with the State. Similarly, the law of adoption is also rarely utilized by Tanzanians. The number of children being looked after by relatives is far greater than those who have been formally adopted. Indeed, as noted above, even the LCA has sanctioned the practice of taking care of children in accordance with “any traditional arrangement” s 9(4) LCA. This means the law recognizes the continuation of the old child care practices. The fact that the 1942 law of child adoption had never been popular with many African communities is widely known (Rwezaura & Wanitzek 1988). Hence, the introduction of open adoption by the LCA seeks to encourage Tanzanian relatives to create a formal relationship between them and the children of their relatives. The idea of having both open adoption and traditional forms of child care may appear flexible and convenient but it seems to defeat the whole object of state regulation of alternative family care and child protection.

Turning to the regulatory role of family law we should note that extra-judicial divorces are common in Tanzania. Parties see the need to approach state courts when a former husband wishes to claim refund of marriage payment (bridewealth) or to claim children taken away by the mother or those born during the couple’s separation. In parts of Tanzania where marriage does not involve substantial property transfers, there are many couples living apart in the false belief that they are legally divorced. Indeed, some women do “remarry” on the assumption they are free to do so when in law they are still married to their “former” husbands. In this context the law fails to oversee the termination of marriage and to effectively regulate post-divorce issues such as division of matrimonial assets and allocation of custody of children. Needless to add, the provisions of the law relating to judicial separation are not utilized by such couples.

The protective role of the law is also weakened by parties who do not seek the assistance of state courts when they face matrimonial disputes. Research has revealed several factors that deter married couples, especially the wives, from using state courts to resolve their family disputes (Rwezaura 1999 UCT).These include lack of knowledge of available remedies; the high cost of litigation; social pressure against taking family disputes into the public arena. Thus no matter how well drafted a piece of legislation may be, it will not perform its job if parties cannot pursue their remedies in appropriate state organs.

It needs to be pointed out also that there are significant gaps in the protective framework of family law. For example, we noted in Post Eight that despite the high rates of domestic violence, Tanzania does not have a special legislation on domestic violence. In many jurisdictions, domestic violence is viewed as a human rights issue because of its gendered nature.  Again we noted that the LMA lacks provisions governing the property rights of co-wives at the time of divorce. [1]The protective role of family law is also weak in relation to children of the family.  As noted in Post Eleven upon separation or divorce the court has power to order child custody and maintenance. But very few, usually fathers, ever pay child support.[2] This has sometimes discouraged mothers from seeking custody of their minor children because they do not want their children to starve or fail to complete their education due to financial difficulties. Unlike other jurisdictions, Tanzania does not have special mechanism for the enforcement of child support obligations.[3]

Tanzania also faces the problem of child marriages. Although section 13 of LMA provides a minimum age for marriage at 18 years for males, the minimum age for girls is set at 15 years. In a sense the LMA unknowingly encourages child marriages thus violating several human rights of the child. The lower age of marriage is favoured by many parents, especially in the rural areas where it is customary for girls to marry at a young age. This is why female children are withdrawn from school to get married to men chosen by their parents or guardians (see Elizabeth Saya, Haki za Watoto na Utata wa Sheria ya Ndoa 1971, Nipashe, 11 March 2014 p 8).[4]

Family and the State as Partners

The Universal Declaration of Human Rights (UDHR, 1948) states that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State (Art 16). The International Covenant on Civil and Political Rights (Art 23 ICCPR, 1966) makes the same point. Tanzania is a party to the ICCPR and subscribes to the values contained in the UDHR (Art 9(f) URT Const 1997).[5] Hence, the protection of the family is an international treaty obligation which Tanzania is required to honour. The question is what makes a family so important as to deserve protection? This is primarily because the family performs the task of bearing and nurturing the next generation. This function is so important to the state such that without the family the state would be expected to bring up all its children. But as we all recognise the state is ill-fitted to perform these important tasks alone and hence it has to form a partnership with the family.

The vision of the Tanzania Child Development Policy (CDP 2ndEd, 2008) is to have a nation of healthy, educated and well behaved children who have the capacity to play an effective role in nation building. It spells out the responsibilities of the child, the parents, the community, the government and its institutions, in the planning, co-ordinating and implementation of all child related programmes (para 41(vii) p 19). The CDP further stresses that both parents have joint responsibility in bringing up and ensuring the growth and development of their children.

The State has specific obligations towards the family and these fall primarily in the sphere of social welfare, family health, education and economic support to the family. For example, in respect of formal education, Tanzania has made primary school education free and compulsory. The state subsidises secondary school education and vocational training. No doubt many of these functions fall outside the scope of family law.  It is clear from the content of the CDP that it anticipates, and is indeed built on the assumption, that the state and the family will work in partnership to achieve the vision stated above
It must be stressed however, that when we speak of family we do not necessarily mean the conventional family of husband, wife (or wives) and children. We have to bear in mind the fact that the family is changing and new family forms are emerging. Moreover, we have to recognise that there are children who have no families to belong to. In such cases the state has to take the place of parents to these children. Within the context of alternative family care, the state is expected to oversee the process and to ensure that these children are assigned to suitable families. Thus in cases where a child has no family to act as the ultimate parent, i.e. parens patriae.

The provisions of Part III of the LCA are intended to ensure that children who are in need of care are given protection by the State. The definition of a child in need of care is found in s 16 LCA. It includes, a child who is an orphan or is abandoned, has been neglected or ill-treated parents, is destitute or under the care of a destitute parent, is wandering, begging, or having no home or settled place to live. Also a child exposed to immoral or criminal conduct or influence including prostitution or being a victim of human trafficking falls in the above category. Sadly, the gap between section 16 LCA and actual practice is very wide indeed. We have in our cities a large population of children living on the streets or begging alongside their destitute parents. Children in need of care and protection are supposed to receive various forms of assistance from the State so that they may lead a decent and productive life.  Unfortunately, many of these children do not get the expected assistance from the state and this poses a huge challenge, not only for the State but the entire nation.

State as Watchdog and Family Protector

Although the State and family are correctly viewed as partners in the care and upbringing of children, the State also plays the role of a watchdog and protector of family members during times of crisis. In its role as watchdog, the state has power and responsibility, for example, to intervene in the family to ensure that children are not abused by parents. For example, s 95 LCA states that it shall be the duty any member of the community who has evidence or information that a child’s rights are being infringed to report this to a local .government authority of the area. Upon such a report being made, the social welfare officer has power to summon the child’s parent to discuss the matter and to make appropriate decisions. Where the parent refuses to comply with the decision of the Social Welfare Officer, the matter shall be referred to a court of law which shall hear and adjudicate upon the matter. In any case according to s 95 (5) LCA, any person who infringes the rights of the child as provided under sections 95(1) and 14 LCA commits a criminal offence and is liable upon conviction to serious punishment.

In cases of domestic violence, the State intervenes to stop spouses from hurting one another. This may be done by the use of criminal law, but also the LMA. We have noted in Post Eight the shortcomings of our law against domestic violence,(as gender based violence), has become a human rights issue. In cases of separation or divorce, the state has to determine whether or not the parties’ marriage has broken down irreparably and to terminate it. Before terminating the marriage, the state attempts to mediate, and where mediation fails, the marriage has to be dissolved. In this connection the state oversees the entire process of division of assets and custody of minor children. These post-divorce matters are often contentious and if not properly handled can lead to acrimony and bitterness between the couple. Such bitterness has the effect of weakening the couple’s ability to co-operate in the upbringing of their minor children. Thus the state has to ensure there is fairness in the division of matrimonial assets and to protect the weaker family members. It has also to decide issues of child custody bearing in mind the best interest of the child as a paramount consideration.

Changing Family Forms and Family Relationships

Before embarking on this discussion we need to consider the meaning of the terms family and family forms. The conventional term ‘family’ when qualified by the word ‘nuclear’ refers to a small unit consisting of a man and his wife and their minor children. And when the term ‘family’ is qualified by the words ‘extended’ it includes a larger group of individuals consisting of relatives of different generations including, not only husband, wife (or co-wives) and children (minors and adults) but also grandparents, cousins, nephews and their children. Thus the common understanding of the term family among African people is that it includes members who share a common descent including their spouses.[6]

The term family form on the other hand relates to the structure and composition of the family. For example, we are familiar with the extended family and the nuclear family as types of family forms. But there are also single parent families, arising from divorce, separation or death of one spouse. There are also child headed families and families headed by relatives such as grandparents. There are families where the couple is not legally married but simply cohabiting as in de facto unions. All these non-conventional family forms have implications for family law. Hence, students should be aware of their existence and the extent to which they operate within or outside the framework of family law. Moreover, students should recall our discussion regarding the effect of social change on family law. Here again we note that the rise of some of these family forms is to a large extent connected with economic and social transformation. It is also a result of demographic changes and the effect of HIV/AIDS which has caused unprecedented loss of lives and left many children without parents to care for them. Students need to evaluate the extent to which our family law has coped well with these transformations.

Finally, the development of science and technology has also significantly impacted on family law and thus given rise to changes in the relationship between family members. For example, the legal provision regarding proof of parentage by DNA testing is a recent thing in Tanzania. Its implications are yet to be fully appreciated. For example, s36 (1)LCA provides for compulsory medical examination of a man who is alleged to be the biological father of a child. And where a court makes an order for medical tests and the alleged father refuses to comply, such refusal is an offence punishable by fine or imprisonment. It is arguable that this provision would be challenged in due course as a human rights violation.[7]

Another development in science and technology which has not been legally provided for in our law is the legal status of children born as a result of scientifically assisted reproduction. There are four known forms of scientifically assisted conception The first is artificial insemination by donor (AID); second, is in vitro fertilization (including embryo transfer) using a donor’s egg or sperm; and third, is surrogacy where a woman other than a wife agrees to have another couple’s embryo implanted into her womb to be carried to full term with the intention of handing over the baby to the couple. In all the three forms of scientifically assisted birth, there are questions of parentage which Tanzania law does not address. This is unlike other jurisdictions  where the law has provided answers to these questions. Such silence is not in the child’s best interests given that scientifically assisted birth takes place in Tanzania and there are children born as a result of such procedure. 

Perhaps more controversial is the question of legal recognition of same sex partnerships and whether family forms arising from such relationships would be legally recognized in Tanzania in the near future. Basing on available evidence there are no indications that same-sex partnerships or family forms would gain legal recognition any time soon.[8]

Summary and Conclusions

This final Lecture has tried to wrap up the entire module using four major themes. Each of the themes seeks to draw together its various parts while also underlining the connections in the topics covered. It is hoped that the approach will enable students to see the module as a whole and therefore to enhance their understanding of this course. The first theme relates to the functions of family law. As noted in Lecture One, by asking ourselves what family law does, we are in good position not only to understand family law itself but also to evaluate its effectiveness in performing what it purports to do. Some of the weaknesses of Tanzania family law have been noted in the final lecture. However, room has also been left open for further evaluation of its effectiveness and students are encouraged to maintain a culture of assessment and evaluation.

The second theme is the operational relationship between the State and the Family. This lecture has put forward an argument that the state and family are partners. Indeed the work of the state and that of the family are inter-linked.  The state enacts laws to promote family welfare and to regulate family relations.  It enacts minimum standards for child care and upbringing, including compulsory vaccination and school attendance. It builds schools and hospitals including day-care centers and kindergartens. The state sets up entire ministries, departments and directorates and district councils dedicated to the welfare of families.  The family, for its part, needs to work together with the state in order to achieve the various developmental goals set for the family. 

The third theme is the role of the State as watchdog and protector of weaker family members. Whereas it is widely recognized that the family is autonomous and that state intervention should be slow and measured, it is nonetheless unavoidable for the state not to intervene.  The state intervenes primarily to protect the weaker family members from various forms of harm. The most common forms of intervention, as noted above, relates to prevention of abuse of wives and children. As we have noted, in the context of Tanzania family law the state’s role as protector of weaker family members fall below the required standards.

The fourth and final theme concerns the changing family forms and family relationships and the extent to which the law is able to maintain regulatory and leadership role. Here again, as noted in the final lecture, it seems the speed of change in our societies is far greater than the law’s capacity to lead by directing such change and by regulating social relations. The result is that a number of areas of social life are left out of the law’s empire, so to speak. For example, the absence of the rules relating to the status of children born as a result of medically assisted conception does not mean that such medical practice will cease. It is to be hoped that rather than lagging behind social change the law will lead the way and show leadership in various spheres of family law.






[1]See Bart Rwezaura,  ‘Tanzania: Building a New Family Law out of a plural legal system’  University of Louisville Journal of Family Law (1995)  523, 530. See also Rachel Howland  & Ashley Koenen, Divorce and Polygamy in Tanzania (Social Justice Paper 15 http: ecommons. Iuce.edu/social_justice 15)
[2]As noted by Sisya J in Ahmed Ismail v Juma Rajab 1985 TLR 204 (HC), “The tendency among young men of today to ignore their offspring living with their mothers, and away from themselves, is a fact too notorious to escape judicial notice of this Court.”
[3]See for example the Child Support Act 1991 (England and Wales) and subsequent amendments.
[4]The Ministry of Community Development Gender and Children recommended (in CDP 2nd Ed 2008) that the Law of Marriage Act be amended to raise the minimum age of marriage for girls to 18 years but this recommendation has not been acted upon (Sera ya Maendeeo ya Mtoto Tanzania  2ndEd  para 49 pp 25-26). Indeed the opportunity to amend the law was lost ten years later in 2009 when the Law of the Child Act  was enacted clearly providing under s 4  that “ a person below the age of eighteen years shall be known as a child.”
[5] See also CRC Art 19 and 24.
[6]See Armstrong A et al “Uncovering Reality: Excavating Women’s Rights in the African Family (1993) 7 International Journal of Law, Policy and the Family 314, at
[7]See Probert 2003 at p 195 and Re (A Minor) (Paternity: Refusal of Blood Test) [1994]2 FLR 463 and the Family Law Act s 21(1)
[8]  For an overview of the global gay rights movement, see B Rwezaura, “To be or Not to be :Recognition of  same-sex Partnerships I Hong Kong” Hong Kong Law Journal Vol 34, No 3, 557, (2004).

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Recent statutory developments in Tanzania have thrown the concept of jurisdiction into disarray. Discuss

constitution , law
Answered by: Bashiru saidy
College: Institute of judicial administration (IJA)
Programme: Diploma in Laws


OUTLINE

1.0 INTRODUCTION
1.1-The concept of jurisdiction

2.0 MAIN BODY

2.1 Statutory development and the changes in jurisdiction
2.2 Jurisdiction as to the General and Special Courts
2.3 The Recent Statutory Development and the Concept of Jurisdiction
     2.3.1 Advantages of the noted statutory development
     2.3.2 Disadvantages of the noted statutory development.

3.0 CONCLUSION

Bibliography


1.0 INTRODUCTION

In Tanzania there has been in the recent years the development of statutes. These developments have the impact on the jurisdiction of the courts as there has been the establishment of the courts with special jurisdiction. Though the said developments have affected the entire system of the courts as there is the establishment of the hierarchy which is independent such as the land division courts in which the Ward Tribunal is taken as the court for the purpose of the Act establishing it and at the top there is the High Court Land Division. Before going to the keen of the question it is better to start by familiarizing ourselves on the concept of jurisdiction.


1.1 THE CONCEPT OF JURISDICTION

The term Jurisdiction is not defined in Tanzanian statutes; hence we have to fall back to the common law by virtue of section 2 (3) of the judicature and application of laws Act herein below referred to as the JALA which allows the application of such laws in our legal system. Jurisdiction is defined as the power or authority of court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it[1].in other words by jurisdiction it is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision[2].

Thus jurisdiction of court means the extent of the authority of a court to administer justice prescribed with reference to the subject matter, pecuniary value and local limits[3]. However generally Jurisdiction is defined as the power of the court or tribunal to hear and determine matters which are placed before it. Jurisdiction being important matter it was stated in the case of UTAMWA V AG & MUNGAI[4] that jurisdiction must be determined at the beginning of the proceedings not at the in the course of or at the end of proceedings.

2.0 MAIN BODY

2.1 STATUTORY DEVELOPMENT AND THE CHANGES IN  JURISDICTION.

In civil procedure the understanding of the jurisdiction of court one has to look on the statute establishing the respective court. In our country the civil procedure is guided by the civil procedure code 1966 which according to section 2 of the code the court in which applies are the High court, the District court and the Resident magistrate court.  However section 7 of the civil procedure code provides the presumption of jurisdiction to all civil court and gives cognizance of the power of other statute to oust general civil jurisdiction and to grant exclusive jurisdiction in certain civil matters.
In recent years there have been enactments of several statutes which in one way have affected the ordinary application of the jurisdiction compared to what was previously conceived.

The recent development of statutes in Tanzania has witnessed the establishment of several divisions of the high court which varies the jurisdiction of the court. As it is known the High Court has been established by article 108 of the Constitution of the United Republic of Tanzania 1977 as amended from time to time. The jurisdiction of the High Court is provided for under section 2(1) of Judicature and Application of Laws Act[5] that it has an unlimited jurisdiction over all matters.

There is also the enactment of the High Court Registry rules. These rules established several sub- registries of the High Court which operate in zones, but this is not to be taken to mean that, the High Court territorial jurisdiction is confined on the said zones rather it is just for administration matters only. However, there has been recent enactment of several statutes which either takes away the jurisdiction of court or makes the court to have concurrent jurisdiction. To understand this, it is time now we look at different enactments of statutes which have effect on jurisdiction.

To start with is the Land Division; this is a division of the High Court which is established under section 3 of the Court (Land Dispute Settlement) Act. This law has taken away the High Court jurisdiction over land matters which previously was the concern of the High Court main division and vested it to the respective division. The Act also has caused the establishment of the Village Land Council, the Ward Tribunal, the District Land and Housing Tribunal; which are recognised as courts under the Act. All these bodies established under that law are vested with exclusive jurisdiction over land matters. The Courts (Land Dispute Settlement) act is the product of section 167 (1) (b) which vests exclusive jurisdiction on land matters over among other tribunals the High Court Land Division


Another enactment of law which has affected the jurisdiction of the courts is the Labour Institutions Act; this law under the provisions of section 50 provides for the establishment of a Labour Division of the High Court; which is a court which exercises jurisdiction over labour disputes as provided under section 94 of the Employment and Labour Relations Act 2004.The court has exclusive jurisdiction over labour matters. This court has taken away the jurisdiction which was at the beginning exclusively vested on the District Court.

Also the Commercial Division of the High Court is one of the High Court divisions which are established by the high court registry rules. Though established by the said rules it is a division of the high court and not a sub registry. This new established division is very different from the two previously explained ones, because though it is established to deal with commercial matters the law establishing it has not granted it exclusive jurisdiction .It therefore exercises concurrent jurisdiction with the general division of the high court. The court has been established to deal with commercial matters.

In recent years there has been enactment of several statutes.  The enactment of statutes which establishes courts usually affect the pre existing system of jurisdiction. A good example is the Courts (Land Dispute Settlement) Act. This court has varied the pecuniary jurisdiction of courts over land matters, but with reference to the established courts/tribunals such as the District Land and Housing Tribunal which has been established by the law, deals with matters which the subject matter does not exceed 40 million shillings and the Ward Land Tribunal of which has a pecuniary jurisdiction of 5 million shillings. It should be known that this law has taken away the primary court and district court  ordinary jurisdiction over land matters and vested it to the afore said courts.


2.2 JURISDICTION AS TO GENERAL AND SPECIAL COURTS

Generally Tanzania has three tier court systems which comprises of the High court at the top, District court and Resident Magistrate Court at the middle and the Primary Court at the bottom.

The High Court by virtue of section 2(1) of JALA, has unlimited civil jurisdiction, territorially and pecuniary. The Resident Magistrate Court and District Court have concurrent jurisdiction over civil matters as provided under section 41 (1) of the Magistrate Court Act, 1984. District court and resident Magistrate court are established under sections 4 and 5 of the MCA respectively. The civil jurisdiction of the two courts before the recent statutory development is as follows.

The pecuniary jurisdiction of the district court in relation to immovable property is 150,000,000/=Tsh. And in respect of the subject matter capable of being estimated at money value, the courts can entertain such  matters  where the value does not exceed 100,000,000/=Tsh[6]. The Resident Magistrate having concurrent jurisdiction with District court could entertain matters of the same pecuniary value. It should be known that before the recent statutory development, the court could try any civil matter of any subject matter. And also the district court had exclusive jurisdiction in labour matters.

However, recently there has been statutory development which has affected the ordinary jurisdiction of courts in entertaining civil matters; for example, there have been established division in the High Court which have exclusive jurisdiction over land matters, another division vested with exclusive jurisdiction over labour matters and another division dealing with commercial matters. However, the main division of the high court has retained unlimited jurisdiction over other matters except those which the divisions have been given exclusive jurisdiction i.e. Land, labour and commercial divisions.

Also the exclusive jurisdiction of the district court to deal with labour matters has been taken away and it is now vested in the high court labour division by virtue of section 50 of the labour Institutions Act. This division has been granted exclusive jurisdiction over labour matters.

The jurisdiction of district court in respect of land matters has been also ousted under the provisions of section 3 of the Court (Land Dispute Settlement) Act which has established the high court division, the District land and housing tribunal and ward tribunal and village land council which has been vested with exclusive jurisdiction over land matters.

The pecuniary jurisdiction of the district court also has been specifically granted to the court by virtue of the Written Laws (Miscellaneous Amendments) Act 2004.under the law which amends the Magistrates Courts Act Section 40 adding that the court will deal with commercial matters and also that its jurisdiction on such matters in respect recovery of possession of immovable property where the value does not exceed fifty million and in respect of subject matter that can be estimated at money value the amount should not exceed thirty million.

Formally under section 18 (2) of the Magistrate Court Act the chief justice had power by order published in the government gazette to make rules which could give the primary court jurisdiction on the land matters especially on the administration of the estate of the deceased person provided that the deceased person at a time of death had a fixed place of a body within the area of the jurisdiction of the court and the law applicable in the administration or distribution to the estate is customary or Islamic law. The chief justice enacted these rules by virtue of GN No. 320 of 1964. So having the hierarchy of the courts on land matters from ward tribunals (special courts) the jurisdiction formally vested on the primary court is bared by this hierarchy of land courts at the matters would be directed towards these courts.


2.3 THE RECENT STATUTORY DEVELOPMENT AND CONCEPT OF JURISDICTION

The overview of the recent statutory development and its impact on the concept of jurisdiction is two folds. To determine whether the statutory development in Tanzania has thrown the concept of jurisdiction into disarray or not one has to look on the advantage and disadvantages of the creation of the special divisions of the courts.

2.3.1 Advantages of the noted statutory developments.

The statutory development has helped to provide specific courts to deal with specific cases arising from specific discipline for instance the land division which have exclusive jurisdiction in land matters. Thus the specialization of the courts in different disciplines shows the picture of the well organized court system. 

Also this development has facilitated the disposition of cases easily this is because before the introduction of these divisions all cases were confined in the general or ordinary jurisdiction of the courts. For instance the district courts apart from having exclusive jurisdiction on the labour matters such jurisdiction has been vested into the labour division hence reduce the burden to the district courts of dealing with numerous cases. This in fact has facilitated disposition of cases.

2.3.2 Disadvantages of the noted statutory developments

It is well settled law that the court of appeal is not established by the Act of the parliament however following the introduction of the Courts (Land Dispute Settlement) Act recognises the court of appeal as the court with jurisdiction over land matters. This recognition by section 3 (2) (e) of the Act brings inconsistence because as far as the jurisdiction of the courts because the court of appeal does not have original jurisdiction. What was supposed to be the concern of this provision was to deal with the courts of original jurisdiction. Whereas this section has lead into conflict as the court of appeal, the court of appeal has jurisdiction as provided for by the Appellate Jurisdiction Act, 1979.

In addition the establishment of the division of high court are acting as the bar towards the access to justice, for instance the high court commercial division has only sub registry in Arusha and main registry in Dar es Salaam. Also the high court land division has its establishment only in Dar es Salaam therefore the cases of  land matters in the other regions have to wait the circuit movement of the judges from Dar es salaam which acts as the delay as it is not easy for them to circulate in the country at appropriate time.

The exclusive jurisdiction vested in the general division of the High Court for instance exclusive jurisdiction on bankruptcy, probate matters in exclusion of small estate, company especial in insolvency and winding up and admiralty plays as disadvantage as it leaves only one step for the appeal by the one having suit to be dealt by this court.

The recent development of statute has a disadvantage in that, it has witnessed the establishment of several courts with exclusive jurisdiction this has caused confusion to people as they fail to know exactly that as to which court they should institute their case, this may result into dismissal of cases. This is a result of people’s ignorance in law and changes therein.

Further, another disadvantage due to the development of the commercial court it has been too cost full for people to file suits in commercial courts hence deny peoples rights as they cannot afford such cost to institute their cases. On top of that the Commercial Division of the High Court as it has concurrent jurisdiction with other divisions of the High Court it appears that case which were supposed to be instituted in this division of the High Court can either be instituted in the Land Division[7] or in the General Division of the High Court.

There is another problem as far as the jurisdiction of the courts as it appears apparently that under section 40 (2) (a) and (b) of the Magistrate Court Act that the District court has pecuniary jurisdiction over immovable property as it is 150,000,000 and 100,000,000 for the other properties where then subject matter is capable of being estimated at money value.[8]From the provisions of this Act the District Court is having the jurisdiction on the immovable and other properties as given by these laws.

At the same time the District Court has jurisdiction over the commercial matters where in section 2 of the Magistrate court there the inclusion of the term Commercial Case[9]  whereby the court has jurisdiction on the commercial cases in which the district court has jurisdiction on proceeding of immovable property not exceeding fifty million, and proceeding in which the value can be estimated at a money of the subject matter not exceeding thirty million. The problem with these laws is that it appears difficult on the part of jurisdiction because people found it difficult as to which court to institute the suit whether to be instituted in the district court or the land division as the law deals with the immovable property, or the part of the district court with the commercial division.


3.0 CONCLUSION

To conclude, generally the law of Tanzania is the law which has not reached the stage of its development in which the community can come up with the conclusion that there is the settled law in Tanzania. Following the present court system it is evidenced that even the jurisdiction vested to some courts by either the statutes establishing them or other statutes have experienced either the express bar of jurisdiction or the bar of such jurisdiction by general implication. This is because the adopted statutes from the common law are under transformation to suit the situation of our local circumstances.

The present statutory development therefore apart from facilitating the attainment of justice in the society its impact has affected the existed jurisdiction of the courts that in a large part of the country due to ignorance of law it has become difficult for the society to comprehend with the new enactments as far as the jurisdiction of the courts is concerned. All in all the statutory development in Tanzania is aimed not to outer jurisdiction of the courts but the main purpose is to facilitate the attainment of justice by adopting the system of specialization. 



REFERENCES

1.  Written Laws (Miscellaneous Amendment) Act No 3 of 2002
2.   Civil Procedure,5th Ed, p 33
3.    www.ilo.org




Citations

[1]  C.K. Takwani, Civil Procedure,5th Ed, p 33
[2]  Official Trustee V Sachindra AIR 1969 SC 823 (827):(1969) 3 SCR 92
[3]  Raja Soap Factory V S.P Shantharaj A.I.R (1965) SC 1449:(1965) 2 SCR 800
[4]  Civil Appeal 40/2000.
[5]  Cap 358 R.E 2002
[6] This is provided by the Written Laws (Miscellaneous Amendment) Act No 3 of 2002
[7]  The cases involving securities like mortgages and other cases which are involving commercial activities but they involve securities like land
[8]  See the Written Laws (Miscellaneous Amendments) Act No 3 of 2002
[9]  In the Written Laws (Miscellaneous Amendment) Act No 4 of 2004, commercial means a civil case involving a matter considered to be of commercial significance including but not limited to [See those instances provided under roman I to roman xi) 
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Does the doctrine of separation of power exist?

constitution , law
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SUMMARY
The Doctrine of Separation of powers includes the following distinct but overlapping aspects;
 Institutional separation of powers: (a tripartite separation of powers) – the need to have three major institutions or organs in a state i.e. Legislature, Executive and Judiciary.
§ Functional separation of powers: state power/functions must be vested and exercised by three separate institutions or organs i.e. law making, enforcement and interpretation.
Separation of personnel: (each organ with own personnel) – no person should be a member of more than one organ.
Limitation of appointing powers: state organs should not appoint or elect members for each other.

b) Modern (Contemporary) approach
This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of separation of powers. Essentially, this approach point out practical difficulties in the application of Montesquieu’s strict doctrine and thus advocates for a ‘mixed government’ or ‘weak separation of powers’ with ‘checks and balances’to prevent abuses. Therefore, this concept insists that the primary functions of the state should be allocated clearly and that there should be checks to ensure that no institution encroaches significantly upon the function of the other. 
 To them, Montesquieu’s strict doctrine presents the following problems:-
A complete separation of the three organs may lead to constitutional deadlock (disunity of powers). Thus, a complete separation of powers is neither possible nor desirable.
Partial separation of powers is required to achieve a mixed and balanced constitutional structure.
 It would be impractical to expect each branch of government to raise its own finances.
 The theory is based on the assumption that all the three organs of the government are equality important, but in reality it is not so. In most cases, the executive is more powerful of the three branches of government.

C) Marxist-Leninist approach
§ Unlike, the other two approaches, the Marxist-Leninist approach refute the application of the doctrine by arguing that the theory of the separation of powers is “nothing but the profane industrial division of labour applied for purposes of simplification and control to the mechanism of the state”. In essence, Marxist-Leninist theory rejects the theory of the separation of powers because it ignores the class nature of society. The existence in a socialist state of state bodies with different jurisdiction means that a certain division of functions in exercising state power is essential while maintaining the unity of state power.

 DOES THE DOCTRINE OF SEPARATION OF POWERS EXIST?
Although Montesquieu separated governmental functions and separated governmental powers, there is no clear one-to-one correspondence between the two because he did not insist on an absolute separation. 
§ Thus, although the executive is a separate branch, it properly partakes in a legislative function. This blending or overlapping of functions is in part necessitated by Montesquieu's intention that separation check the excesses of one or the other branch. Separation of powers here reinforces or even merges into balanced government.
 In the case of Mwalimu Paul John Mhozya V. Attorney General it was held that the balance of power between the three function of the government , namely the executive, legislative and judiciary must be carefully maintained…….. One organ of the government should not usurp the powers of another. 
The doctrine of separation of powers originated in France but it spread to other government. The United States of America was among the first governments which applied the theory. Also like other democratic constitution  the constitution of the united republic of Tanzania adopted the theory of the separation of powers in both the territories. 
That is the United Republic of Tanzania. Article 4 of the constitution provides for the exercise of the state authority of the united republic of Tanzania. That, the executive functions of the state will be carried out by two executive of the state, Union executive and that of the revolutionary government of Zanzibar. 

The same applied to legislature, the legislative function will be carried by the Union parliament and house of representative of Zanzibar and judiciary of the united republic and judiciary of revolutionary government of Zanzibar. 
Also in Tanzania there are special provisions in the constitution which shows that there is separations of powers in Tanzania. Such provisions includes Article 112 {3}of the constitution  which provides that a person can not be appointed to be member of the judicially services commission if he is member of parliamanent , Article 84{2}&85{2} respectively provides that a minister or a deputy minister shall not be elected to be a speaker or deputy speaker .and also article 67{2} {g} which provides that a person shall not be elected to be a member of parliamanent if he holds a senior office in the united republic
 It should be remembered that separation of powers do not mean lack of interaction among the powers of the government, but the main thing in separation of powers is the issue of check and balance. 
 Check and balance do not mean interfereence, rather than means control by one of the power or authority of the government against the other by making them counteract one another actions. 
 Through the theory of check and balance each branch controls the other without interfering or influencing the functions of other organ of the state. In this executive checks the function of the legislature, legislative to executive judicial to legislature and judicial to executive. Madison J. says in arguing for the separation of powers that:
Montesquieu did not mean that these departments ought to have no partial agency in, or no control over the act of each other, but the doctrine was one of mutual restraints or checks and balance.

Check and balance can be seen through the following things:
1. Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary. A specific court with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a written constitution). 
Judicial review is an example of the separation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.
 For example in The Election Act section 112 in the case of Julius Ndyanabo  v  A.G the provision which required a petitioner to deposit a bond of 5 millions shillings in order to file an election petition, and the high court held the provision to be unconstitutional in respect of article {13} of the constitution of the  United Republic.

 2. Ministerial responsibility
This means that the respective minister is answerable to the parliament As it provided under article 63 (3) (a) of the Constitution of the United Republic of Tanzania that: 
 “For the purpose of performing its functions, the nation assembly may ask any question to any minister concerning public affairs in the United Republic which are with in his responsibility.”
Example  the Parliament of the United Republic of Tanzania  during the Bunge sessions before the  other activities of the Bunge continue like the debate in the Bunge there is time for questions and answer, were by member of a parliament asks the questions to different ministry and answers from those ministry are replied either by minister or a deputy ministers.
 Also article 53 of the Constitution of the United Republic of Tanzania gives the nation assembly power to pass a vote of no confidence in the prime minister.
 For example under the supervision of Hon. Zitto Kabwe 70 signature was collected from the member of the parliament to vote for having no confidence to the Prime minister Hon.  Mizengo Kayanza Peter Pinda.  

v Application of the Doctrine of Separation of Powers in the United Republic of Tanzania
The Constitution of the United Republic of Tanzania (1977) represents a contemporary approach in constitutional doctrine of separation of powers. Essentially, there is no strict separation of powers under the Constitution of Tanzania, both in principle and practice. In the Constitution of Tanzania, the doctrine of separation of power is enshrined under Article 4 which, inter alia, provides that; 4.-(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.
In principle therefore, Article 4 of the Constitution establishes three organs of the state i.e. executive, legislature and judiciary. In practice though, there is no strict separation of powers (but rather a mixed from government with checks and balance) in terms of functions of each organ and personnel conferred with state powers as exemplified below;
 Incidences showing there is no strict separation of powers in Tanzania
It is the President (executive) who appoints Judges and Justices of Appeal (Judiciary) under Article 109 and 118. 
The President (executive) is also allowed to appoint a certain number of members of the National Assembly (legislature) under Article 66(1) (e).
The executive do adjudicate in certain cases under ‘administrative tribunals’, e.g. Military Tribunal (Court Martial), The Tax Revenue Appeals Board, The Fair Competition Tribunal, and The District Land and Housing Tribunal.

 Judges, in practice, do make laws.
The Chief Justice is allowed to make rules, e.g. Court of Appeal rules (2009) made under the Appellate Jurisdiction Act (RE: 2002, Cap. 141).
 The Court can nullify Acts of parliament under Article 64(5).
 Members of the executive such as President, Ministers, Directors and etc., are allowed to make subsidiary legislation as per Article 97(5).
 The President is part of the Parliament (but not a member of the National Assembly) as per Article 62(2). 
Ministers (executive) initiate Bills and the President assent to Bills into law or may veto the same [Article 97(1)(2)].
Ministers (Cabinet members) are also part of the National assembly [see, Article 55(4)]. The Attorney General (part of the executive) is also a member of the National Assembly under Article 66(1) (d).
President has the power to dissolve the National Assembly [Article 97(4)], likewise the National Assembly can impeach the President, Vice-president and Prime Minister (Article 38(2)(d), 46A, 50(3) and 53A).
Some members of the National Assembly may also hold posts in the executive such as District and Regional Commissioners [see, Article 66(3) 
 A Judge can also be appointed as an Attorney General (the case of Judge Werema).
 All in all, the Court of Appeal of Tanzania has also asserted affirmatively the doctrine of separation of powers in its various judgements. For instance, in DPP v. Daudi Pete [1993] TLR 22 (CA), a case which was concerned with restrictions imposed by Section 148(5) (e) of the Criminal Procedure Act, 1985 (on bail), Nyalali CJ refuted arguments made by Mwalusanya J (High Court), thus laid down circumstances under which the doctrine of separation of powers can be said to have been violated as following;  

 “In our view, the Doctrine of Separation of Powers can be said to be infringed when either the Executive or the Legislature takes over the function of the Judicature involving the interpretation of the laws and the adjudication of rights and duties in disputes either between individual persons or between the state and individual persons.”
Again, in Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 (CA), Nyalali CJ (as he then was) reiterated his position in Daudi Pete’s case and noted as follows (in relation to the encroachment of the Judiciary’s power by the Executive);
 “It is the basic structure of a democratic constitution that state power is divided and distributed between three state pillars. These are the Executive, vested with executive power; the Legislature vested with legislative power, 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. It follows therefore that wherever the constitution establishes or permits the establishment of any other institution or body with executive or legislative or judicial power, such institution or body is meant to function not in lieu of or in derogation of these three central pillars of the state, but only in aid of and subordinate to those pillars. It follows therefore that since our Constitution is democratic; any purported ouster of jurisdiction of the ordinary courts to deal with any justiciable dispute is unconstitutional.” (pp. 92).

Further, in Mwalimu Paul John Mhozya v. Attorney General (No. 1) 1996 TLR 130 (HC), the issue was whether the President may be removed or suspended from office by the Court. Samatta JK (as he then was) in relation to the doctrine of separation of powers held that;
 “The principle that the functions of one branch of government should not encroach on the functions of another branch is a very important principle, one of the principles which ensure that the task of governing a State is executed smoothly and peacefully. It seems to me to be an incontrovertible proposition of law, having regard to the use of the words `in accordance with the provisions of this constitution' in s 42(3)(d) of the Constitution, that removal or suspension from office of the President of the United Republic is the legislature's exclusive prerogative. Since s 46A of Constitution lays down the procedure to be used in removing or suspending the President, the attempt to remove or suspend him by a procedure other than that would not be legal.” (pp.137-8).
 Recently, the Court of Appeal (under Ramadhani, CJ) in A.G. v. Rev. Christopher Mtikila [Civil Appeal No. 45 of 2009] reaffirmed the doctrine (though not so expressly) by restricting the role of the Court to that of adjudicating (and not legislating). The Court argued that;
“…..the issue of independent candidates has to be settled by Parliament which has the jurisdiction to amend the Constitution and not the Courts which, as we have found, do not have that jurisdiction.” 

v The Application of the Doctrine in other Countries
 Various scholarly works reveals that, there is no country in the world which has succeeded to implement Montesquieu’s idea of absolute or strict separation of powers to the fully. Some scholars claim rightly that even Montesquieu’s motherland i.e. France has failed to adhere to the doctrine strictly. However, a cross-section of constitutional jurists worldwide agrees in principle that, somehow the framers of the Constitution of the United States adopted and expanded the doctrine of separation of powers. 
 For instance, in the US Constitution [Article I(1), II(1) and III(1), the three organs of government are both separated and balanced; Each organ has separate personnel and there are separate elections for executive and legislature; and Each organ has specific powers and some form of veto over the other. 
 The power of one organ to intervene in another through veto, ratification of appointments, impeachment, judicial review of legislation by the Supreme Court.
Though the US Constitution presents the best practice with regard to the application of the doctrine, to a certain extent, the same have been violated, the good example is when the Supreme Court interfered and resolved the dispute between Al Gore and George W. Bush with regard to the 2000 presidential election. 
Apart from the US, the constitutional practices in other part of the world bring an impression that the doctrine is not strictly followed. For instance, under Article 86 of the Constitution of South Africa (1996), the executive President is elected by the National Assembly. On the other hand, Kenya has a Parliamentary system, where the president is both the Head of State and Government, and also an elected Member of Parliament.


 IMPORTANCE OF THE DOCTRINE
 It should be remembered that the notion of the doctrine or belief of the doctrine is in the assumptions that the three organs of the government and its functions should be distinguishable from one another; 
 The idea of  abandoning the notion of the doctrine it means all functions of the government can be performed by one organ for example executive take all government functions like enacting the law, interpreting the law, provides peoples welfare, determines the rights of the people. There is a need of the doctrine of separation of powers; the following are the importance of having the notion

• The doctrine avoids the abuse of powers.
• This means that when a single person or a group of people have the extreme amount of power they can become  dangerous to the citizens, so the doctrine of separation of power is a method  of controlling the powers of the organs of the government, because it become more difficult to abuse the power.
• Even though the parliament has the power to enact the laws, the judiciary has the power to declare whether the law is constitutional or unconstitutional through check and balance. 
• The insurance of justice to the people’s .Through separation of power each organ of the government can be independent so that people can get a fair justice through independence of judiciary.
• If the executive has the power over the judiciary then there could be a bias because the judges will act under the pressure or the interest of the executive.
• To avoid infringement of peoples liberty. According to Montesquieu he had a view that if the legislative and executive power is united in the same person or in the same person in the same body of magistrate there cannot   be liberty. This is due to the reason that apprehension may arise lest the same monarchy or senate should enact tyrannical laws, to execute them in tyrannical manner. 
• The same there is no liberty if the judicial power be not separated from the legislative and executive. Where it joined with the legislative, the life and liberty of the subject would then be legislator. When it is joined with the executive power the judge might behave with violence and oppression. Therefore in order to avoid that infringement of peoples right there should be a real separation of powers.
• It pays a major role in the formation of the constitution.
• The separation of powers plays a great role in formation of the constitution to the extent power can be and should be separate and distinct 
• The requiring for judicially impartiality
• There is a need for separation of powers for the purpose of judicial impartiality. Example it was tested before the European court of Human rights in a judgment which has implication  for the role of the lord chancellor in Mc Gonnel v United Kingdom as the case relating to the position of Baillift of Guernesey  as the president of the states of deliberation and subsequently as the sole judge of law in proceeding relating to the application which had been refused. The court held that deputy Bailliffs position was capable of casting doubt on his impartiality and as a result was in violation.
• To control administrative actions 


3. INDEPENDENCE OF JUDICIARY
 Independence of judiciary, is the other factor for the true existence of rule of law , that is to say the existence of rule of judiciary which administer justice accordingly must be independent from the executive and legislature, political and individual influences. 
The courts are supposed to administer justice basing on the knowledge of the law, experiance of the law and only on the provisions of the constitution and  other guiding laws, it has to be free to administer justice in accordance to law. 
 The only tool to achieve judicial review which is active and meaningful is only when judicary is independent as it was observed in the case of V.G Chavda v The Director of Immigration Services, in which the court held that the high court has power to grant an interim interlocutary injuction before hearing an application fo leave for a prerogative order even against a decision of the Government. 
In this case, the court of Appeal of Tanzania widened the scope of administrative law in Tanzania, hence the true picture of multiple factors for existence of the doctrine of Rule of law. Broadly speaking there is no way out the state can experience rule of law if no independence of the judiciary which administar justice in according to law. 
 Article 107B  provides for the independence of judiciary in Tanzania and what it is supposed to be and this was also provided in the case of Hamisi Masisi and six others v. Republic .
It is in a democratic governed state where one can find the elements of independence of judiciary while under authoritarian government, due to the nature of its rule, the judiciary can not be independent as every decision is done under the authority and directives of the person in power.
 On the basis of the principle of separation of powers, the State surrenders judicial power to the judiciary, which will have compulsory jurisdiction to inquire into disputes and then give binding, authoritative and enforceable decisions.
Independence of the judiciary means every judge or magistrate, as the case may be, is free to decide matters brought before him in accordance with his assessment of the facts and his understanding of the law without any improper influence, inducements, or pressures direct or indirect from any quarter or for any reason. This is in accordance with the oath of office, which they take to do justice without fear or favour, affection or ill will.
 There is a tendency of thinking that independence of the judiciary means just independence from the legislature and the executive. In reality it means more than that. It also means independence from political influence whether exerted by the political organ of the State, or by political parties, or the general public, or brought in by the judges themselves through their involvement in politics. This may take two forms namely, deciding in favour of dominant sections in the society such as the ruling party and, or of membership of judicial personnel to political parties.
 Independence of the Judiciary is legal doctrine which calls for the freedom of the judiciary in the administration of justice. This freedom includes the court and its personnel such as judges and magistrates in exercising their powers of dispensing justice. 
 Independence referred here, is not only the independence or freedom from the domination of the executive and legislature, but the freedom of the judges and magistrates to decide the cases brought to them without being intimidated, induced or pressured by any person.
Independence of judiciary should not be mistaken as the freedom of the judges and magistrates to do as they please but to pay adherence to accepted legal values, substantive and procedural rules of law applicable in the country.
 The doctrine of independence of judiciary in Tanzania was introduced by the Independence Constitution 1961. The vision founded upon inter alia the bed rock of separation of powers and the respect for the rule of law entrenched virtues of racial equality before the law, separation of the executive and judicial function and professionalization of judicial. 
 One feature of this era, perhaps the most significant is that the Tanzania Judiciary attained a significant level of maturity and an appreciation of the importance of the need for efficiency and effectiveness of delivering of judiciary services. The then independence movement leader Mwalimu Julius K. Nyerere declared that:
 “Our judicial at every level must be independent of the executive arm of the state. Real freedom requires that any citizen feels confident that his case will be impartially judged, even if it is a case against the prime minister himself.”
  Prerequisites of Independence of the Judiciary(dimensions)
 Independence of the judiciary has a number of requisites. The first is that the State should guarantee it by entrenching clauses in the Constitution on the tenure, security, emoluments and independence of judges. 
 The second is that the State should surrender through constitutional provisions the function of administering justice to the judiciary. It should also guarantee fundamental rights and freedoms of individuals in the Constitution. This is important especially in cases of conflict of interest between the State and an individual or group of citizens collectively. 
 The third requisite is the relative non-partisanship on the part of the judiciary in adjudication of disputes where individual rights are in conflict with those of the State.
 The judiciary does not work alone, but with others. Therefore, for it to be really independent, then it is essential that the freedom and independence of the Bar be also guaranteed. This is because the Bar complements the judiciary in the process of administration of justice in the country. A docile and intimidated Bar cannot contribute to the independence of the judiciary.
 Factors undermining the Independence of Judiciary
 However, the said independence of the judiciary secured by the Constitution poses a great challenge as to whether it is a reality or a myth due to the nature of the prevailing circumstances in the judicial system in relation to their freedom in the exercise of dispensing justice. 
 Independence of Judiciary has been facing great impede which has resulted in the violation and undermining of the said independence .
The factors that pose as elements undermining and/or violating independence of judiciary according to Chris Maina are said to be of two categories; external factors and internal factors . 
 Under internal factors things which undermine the independence of judiciary includes protection of incompetent judicial personnel by a Superior Judicial Officer in the judiciary or the government (“Godfather” as named by the Chris Maina), marginalization of Judicial Officers through poor or insufficient remunerations and exposing them to economic hardship and lastly Corruption such that accepting or asking for bribe in order for the court to rule in favour of the party giving bribe.
 External factors undermining the Independence of the judiciary includes; the supremacy of the Government over the Judiciary such that through appointment of the chief justice and judges of high Court by the president, appointment of courts Assessors in primary courts and High Court and the tendency of the government to induce the courts to rule in their favour without paying regard to the law and rules of natural justice.
 Also under External Factors, there is an issue of harassment judicial personnel which is mostly done by the Executive arm of the Government as in the cases of Ally Juuyawatu vs. Loseria Mollel  and Republic vs. John Kasella Bantu , where the subjected to harassments through being interfered in exercising their judicial functions or by being detained as it was in the case of Kasella Bantu. Other factors includes; Contempt of Court by the Government by not enforcing the court orders. That in several instances, the executive arm of the Government has been failing or refusing to carry out court orders.

 Few notable instances include those in Sheikh Mohamed Nassor Abdulla v. The RPC Dar es Salaam and 2 others  in which the Government refused to carry out the court order by deporting the Sheikh Mohamed despite the court rejecting the same. 
 Also in the case of Lesinoi Ndeinai and Another v. Regional Prisons Officer and Another  where the courts order requiring the police and prisons officials to release immediately the applicants as they were illegally detained was disobeyed.
Apart from those factors which tend to undermine the doctrine of independence of judiciary in Tanzania, the other aspect that results into the undermining or violation of the doctrine in the practical application in the administration of justice is the narrow interpretation of the doctrine of independence of judiciary. 
 This at a large extent is caused by the provision of the constitution being too general and not providing the scope of its interpretation. Hence, the controversy that exists in the interpretation which in most cases is the narrow interpretation leads to great injustice to the citizens of Tanzania.
 Lastly, the use of ouster clauses in legislation is another way in which the independence of judiciary is violated or denied by the Government. 
 Several legislations some of which are still in operation, tends to exclude the courts from exercising the power of administering justice. 
 To name a few, the provisions of the Constitution and the Zanzibar Constitution respectively have denied the courts of law the jurisdiction to determine any dispute arising from the results of the presidential elections from both the United Republic and the Revolutionary Government of Zanzibar. A thing which violates the independence of the judiciary in the administration of justice as the authority with final decision in the exercise of dispensing justice as stipulated by the Constitution .


4. BILL OF RIGHTS
Bill of rights as constitutional principle is another factor for expansion and development of the doctrine of rule of law, as it appears it makes distinction between democratic and authoritarian government. Such doctrine manifest in democratic goverment as the tool of protecting human rights. 
 Since human rights flows directly from the constitutional principle of the rule of law, the sovereignty of the parliament and the independence of judiciary and it does much to determine the balance of power between the state and the citizen, that is to say for the existance of basic human rights courts of justice are vital engine for the existance of rule of law, so the preverence of human rights as provided under constitution intends to expand and develop the doctrine of rule of law under the shadow of judiciary.
 As it was stated in the case of Rev. C. Mtikila v. The Editor of Business Times and Agustino Lyatonga Mrema  where it was held that there is no legislation which expressly or by necessary implication takes away rights of a citizen or other person enjoying the protection of the law of this country to sue a government’s servant or agent who in the course of his official duties, has allegedlly commited a tort against him. 
 Also in the case Rev. C. Mtikila v. A.G , it was held that if there is existance of a law, the oparation of which is likely to contravine the basic right is against Article 30(3)  so saying the candidate has no locus standi is to infringe his right. On the other hand, under authoritarian government, there is minimum or no observation at all of human rights. This further means, there is little or no freedom of speech, and no freedom of assembly,that is, inability to hold meetings without the approval of the government.


5. PARLIAMENTARY SUPREMACY
Parliamentary supremacy, it is also an important factor for prosperity of the doctrine of rule of law; supremacy means that the parliament is the only organ which has power to make and unmake laws, and that it can not be interfeared by any external force. 
 However due to the development of administrative law, now there are other organs which can make, unmake and challenge the laws made by the parliament, though the supreme body is still the parliament. 
This doctrine means more because through its power, the parliament may make or unmake laws. If the unjust law is enacted then there is no way out rule of law can exist in any state, this simply means parliament must make laws which are not against the constitution which is the only tool declaring superiority of any organ and the source of all other principles. 
So up to that juncture it should be bear in mind that the parliamentary Acts are subjected to be declared unconstutional by the judiciary if are contrary to constitution as it was provided in the case of Chumchua Marwa v Officer Incharge Of Musoma Prison and A.G  where the Deportation Ordinance  was declared unconstitutional..........the court went further by explaining what the rule of law means, as  per Mwalusanya, J. (as he was then) ..observed that  “the rule of law means more than acting in accordance with the law. The rule of law must also means fairness of the government. The rule of law should extend to the examination of idea; and that the law does not give the government too much power. The rule of law is opposed to arbitrary power. The rule of law reqiures that, the government should be subject to the law rather than the law subject to the government. If the law is enough to justify dictatorship there is no rule of law. 

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