Вы находитесь на странице: 1из 18

Developments in Judicial Review in Mainland Tanzania.

Issa G. Shivji.

Introduction In this paper, I propose to review the Tanzanian case law on judicial, review so as to highlight the approaches, some advances made, areas of potential judicial creativity and some problems of the supervisory jurisdiction of the high Court. I would like to think that the picture that emerges, inspite of problems, is a hopeful one, I do not wholly subscribe to the negative view taken by consultants of the Filmup Project Report who asserted that the quiet revolution in judicial review which has been brought about and led by the judiciary in so many commonwealth countries- Australia, Canada, India, New Zealand, United Kingdom may be specifically noted-has so far passed Tanzania-indeed all the East African jurisdictions-by.' (p.86). While there have undoubtedly been problems, as will clearly emerge in this paper, the paper also shows and argues that there have been some

considerable steps forward in very short periods of time and bursts of judicial creativity and activism particularly in 1990s.

Relying on reported cases the Filmup consultants found that between 1921-82 only 30 judicial review cases were reported. Speaking through those figures they dared assert that there never has been in Tanzania a vigorous use of judicial review. If they were referring to the colonial period, they would be correct and for the understandable reasons which I shall briefly discuss below. If they were speaking of the two decades after independence they would still be correct- perhaps a little less; but if they were speaking of mid-eighties and nineties they would not be incorrect but , in some respects, would have to place the united kingdom behind Tanzania! As I discuss in detail below, the Kahama Gold Mines decision presaged the celebrated M v Homes Office decision of the House of Lords by at least 6 years. Even if the recently published 10 volumes (1983-92) of Tanzania Law Reports were available when they wrote their report in 1994, the authors of the Filmup Project would have never known about Kahama Gold Mines for the simple reason that it is simply not repealed. A quick count shows that only about 19 judicial review cases have been

reported and even these are not always leading ones breaking new ground which review in this paper that as it nay let the Filmup not detain us. In this paper, the underlying thee I rely on and develop may be summed up as follows;

1. Judicial review is one mechanism by which a relatively open organ of the state (the judiciary) can bring to light and. To some limited extent, redress the abuse of power and authority committed by other organs of the state and public officials. 2. As a means of actually deterring the continued abuse for power and impacting on the value, if at all, lies in dragging out of the cobwebs into light the spidery tentacles of abusive and oppressive exercise of power. 3. During much of the colonial period judicial; review had virtually no role to play for the simple reason that colonialism itself was one gigantic abuse of power. Access to colonial courts which were racially segregated was denied the large majority. Courts in effect served largely the immigrant communities involved in commercial and other matter of disputes. On the other hand, the only branch of public law that had any place in colo9nial legal edifice was criminal law which applied direct coercive sanctions shorn of all liberal pretence to regulate the economic, social and cultural behavior of the recalcitrant lives. 4. For the first two decades if independence, for reasons which I have explained elsewhere the legal terrain remained much the same although the outward trappings of racism in the colonial law were removed (Shivji 1995). The legal canvas was constituted by a plethora of right-less laws and ac constitution without constitutionalism. The state did not seek its legality, much less its legitimacy, in law; rather it constructed a consensus, if at all, on other ideological terrain. Once again, for different reasons and with a different texture this time round. The civil side of Public Law- constitutional law and judicial review- had an insignificant place. Even a few judicial review decisions that came through higher courts involved the

commercial class complaining over licensing, rents and such like, or the former privileged trying to hang over their past privileges ( see, for instance the case of

Bukoba Gymkhana.

5. It was the responsibility of the bill of rights which gave a big push to judicial activism in the field or Judicial review 6. Bred and steeped in private law litigation, judge, and advocates continued to deal with judicial review as if it were another species of private law. 7. It is in the shifting of the approach to public law what! what matters is to control public law powers on the one hand and right public wrongs, on the other,that in my view lies the future direction of development of this (McEldowney, 1994 Ch.5). 9. It is with the public law approach in mind that I have desperately made some suggestions of reform through judicial activity. 10. It is again through the lenses or accountability of public power and the assertion of public lights that I have unalysed and made some cnucisms or the existing case law, as well as pointing out potential areas of development advances. and further branch of law

Source of Supervisory Jurisdiction The High Court derives its supervisory jurisdiction from Section 2(2) of the Judicature and Application of Laws Ordinance (JALO, CAP 453). As is well known, under this provision the High Court exercises its jurisdiction in conformity with the substance of the common law, doctrines of equity and "with the powers vested in and according to the procedure and practice observed by and before Courts of Justice in England. The substantive law practice and the procedure governing applications for judicial review are therefore governed by common law and the practice and procedures obtaining in England on the date of reception.

I would go further and argue that the source of judicial review is the Constitution itself. Article 108(1) establishes the High Court as the superior court of record with unlimited original jurisdiction while sub-article 2 gives it general jurisdiction in any matter which "in accordance with legal traditions and conventional practices" obtaining in Tanzania is to be

dealt with by the High Court. By 1977 it can be said that through the supervisory jurisdiction of the High Court through judicial review had become part of the legal practices of Tanzania. This is supported further by article 13(6) (1) which provides for right of appeal or any other legal remedy. Any other legal remedy presumably includes judicial review. In effect, therefore, it is submitted that he basis for judicial review is to be found in the constitution of the united republic of Tanzania 1977 itself.

Originating Process Procedure and Practice The procedure and practice I judicial review proceedings have had a rather chequered history precisely because, as argued in the introduction, it was not the kind of jurisdiction easily invoked during much of the colonial and the first two decades of independence period. It seems that private practitioners grounded in private law procedures more or less earned over procedures of the civil procedure code to judicial review. Although the origins are not very clear, the application for prerogative orders has always been in two stages. The first stage is to apply for leave to apply for prerogative orders which is done exparte.

An application for leave used to be done in chamber summons accompanied by an affidavit. The affidavit itself would depose to both material facts as well as the grounds for the application, a form of affidavit commonly used in interlocutory applications under the civil procedure code of 1966.

In the early practice, once the leave was granted the same application papers served as the application for the second stage. The correct procedure would have been to institute a fresh second application to be heard interprets wherein the affidavit it would depose to the fact that leave had been granted. Happily in this regard the procedure has changed and is fairly settled.

It is now well established that the application for leave is instituted by (i) a chamber summons accompanied by (ii) statement of grounds and (iii) an affidavit. This was stated unambiguously by Kyando.J. in Nkuzi v. Tanzania Sisal Authority. In that case, the court

took a rather serious view of the absence of a statement and struck out the application as competent. In an earlier case of Mwakibete v The Principal Secretary, however, the court adjourned the matter so as to allow the applicant to file the statement. As a matter of fact, in a somewhat novel procedure, the respondent even filed a counter statement in addition to a counter affidavit.

Leave stage I would like to raise two issues regarding this stage of procedure. The first one relates to the burden o n the applicant at this stage and the second issue arises from section 17A of the Law Reform (Fatal Accidents and Miscellaneous Amendments) (no 3) Act, 1991, No 27 ( 1991 amendment). The practice before 1991 amendment was that the applicant would argue orally the exparte chamber application. Although I have not seen a decided authority directly on the case, apparently some judges applied the same principles as those with regard to interlocutory (temporary injunction in particular) in determining the application for leave. That is to say the applicant had to establish a prima facie case and that the application for the prerogative orders had a probability of success. I respect of interculatory injunctions (or temporary injuction as is more popularly known in our jurisprudence) the House of Lords in the case of American Cynamid V. Ethicon in very clear terms established that. There was no rule of law that the court was precluded from considering whether on balance of convenience an interculatory injunction should be granted unless the plaintiff succeeded in establishing a prima facie case or a probability that he would be successful at the trial of the action. All that was necessary was that the court should be satisfied that the claim was not frivolous or vexatious

Without reference to cynamid case Mapigano J. independently arrived at a similar position in the Case of Kahama Gold Mines v. Minister for Energy. I would submit that in an application for leave for judicial review the same principles ought to apply. That is to say the applicant at the leave stage need do no more than show in the words of Mapigano J. there is a substantial or serious question to be investigated. In short the whole purpose of the application for leave would be to weed out frivolous and vexatious applications and

perhaps those, on the face of it, that do not exhibit good faith or ex facie are an abuse of the legal process. I now turn to the second problem engendered by section 17A (1).

Section 17A (1) which was introduced ill 1991 requires that at the leave stage the court shall summon the Attorney General to appear as a party and if he does not on the date mentioned in the summons the court may proceed exparte. The court of Appeal has construed this section to be mandatory and has held that it applies only al the leave .The Attorney General is not a necessary party at the second stage when the application is being heard on its merits (see Mecaina v. Commissioner of Income Tax and National Housing

Corporation v. Tanzania Shoe Co.) The objective of this provision, which is unnecessarily
cumbersome is not at all clear particularly when the trend has been to expand the scope of judicial review and make judicial review proceedings as easily accessible review of the East African Cast Law by Mwalusunya J. in Mwanza Restaurant v Mwanza Municipal Director. The original wording of the clause in the bill, the statement of the objects and reasons, the protest against the proposed bill by the university community, the context of the time and some hard heating judgments by a few judicial review of effectiveness as a remedy against abuse of administrative / executive power.

The clause in the bill which was rather clumsily drafted required a prior notice to be given to the Attorney General in an application for the three prerogative orders in any civil matter against the Government or in any proceedings involving interpretation of the Constitution. The statement of "objects and reasons" on the proposed amendment, on the other hand, says that the effect of 17A was "that there has to be written consent from the Minister responsible for legal affairs before the institution of all application for an order of Mandamus, Prohibition or Certiorari in respect of any civil matter against the government.' This would have brought judicial review proceedings in line with the then Government Proceedings Act which required consent of the minister before private legal proceedings could be instituted against the government. Thus the clause in the bill differed significantly from the statement of objects. The latter perhaps betrayed the intention.

However the consent provision as is well known was declared unconstitutional and the

Law changed replacing the requirement of consent with that of a prior notice. But even while the consent provision existed, the courts had held that judicial review proceedings were not caught by it. Be it as it may be, when the Act was finally passed it gave us the present form of section 17A. The question then is, what exactly is the role of the presence of the Attorney General at the leave stage? As it turns out in practice Attorney General particularly in matters considered sensitive by the Executive which is what most judicial review proceedings are anyway files a fullyblown defence with preliminary objections and challenging every small fact and detail that he can. The result is that the hearing at the leave stage turns to be a fully fledged hearing. (For a good illustration. the Baizi case). If leave is indeed granted, the result would be in effect, that the same matter would be adjudicated upon twice, thus duplicating efforts, wasting a lot of valuable time at great public expense and delaying in orderly matters of great public concern.

In addition the case law cited above which has attempted to make the leave stage more or less a formality, a judicial reform which took many years, has been virtually reversed by section 17A.This is clearly an area which cries out for either judicial or legislative reform in the light of the current relatively liberal approach of the judiciary to public law rights and the provisions of the constitution which guarantee access to expeditious justice (see article 13(6) (a) read together with article 29(1) of the Constitution).

Instituting of Applications for Judicial Review I will briefly turn to the issue of instituting of applications for judicial review. As is known in England for historical reasons the applications for judicial review are instituted as if the applicant was the State [i.e. R v. (the body whose decision is being challenged) ex parte the applicant). In Tanzania this particular from has never been followed ill spite of the fact that in the erroneous way of instituting was pointed out by the then Court of Appeal for Eastern Africa in the case of Fanners 811s Service v The Transport Licensing Appeal Tribunal some forty years ago. Our own Court of Appeal has drawn attention to the same issue in the case assistant import controller v Magnum Agencies. At the leave stage, being ex parte

in the strict sense, the institution, as suggested in the Farmers case, should begin with: In the matter application by xx xx for leave to orders of certiorari and Mandamus; AND In the matter of (the name of the decision making body) (the law etc. under which it was made as appropriate) Where leave is granted, the instituting changes to R v etc, exparte (the applicant). To the best of my knowledge this procedure has not been followed after Assistant controller case. Perhaps traditions die hard, and as with Mwalusanya, J. in Mwanza Restaurant, we may say that this is too technical a matter to be bothered about. However for one reason, It is not simply a technical matter and has the potential of introducing a lot of confusion. Proper instituting helps to distinguish the two stages and this is very important. As I observed earlier on, my experience is that practitioners do not even bother to file a new application after leave. As a matter of fact, the papers filed for the leave stage are carried over to the second stage.

Section 17A introduces further confusion since under it the Attorney General is a necessary party at the stage, which would mean that the designation of the Attorney General would be different at the two stages. At the leave stage, the Attorney General would appear as a necessary party wearing the cap of a respondent and the chances are even opposing vigorously what is symbolically and historically, at least, an application at his behest. At the second stage, the Attorney General as the representative of the state (R. v) would appear as the initiator, albeit only formally. In fact, there is a further farce added to the comedy in that the Attorney General may also be cited as a respondent because he is often cited as a representative of public bodies and officers whose acts or omissions are challenged in judicial review proceedings.

This confusion can perhaps be best settled by the Chief justice making rules under the Law Reform etc, stature as has been suggested many times, But, in my view, the problems and confusion discussed here, the issue of reform, Which touches on both the substantial and procedural aspects of judicial review, cannot be resolved by a piece of subsidiary legislation

which is what the rules enacted by tile Chief justice would amount to. Whatever legislative form of reform is eventually adopted, it is submitted that it should at least do the following:

1. Abolish the two-stage procedure and provide for a simple means for instituting an application for judicial review, perhaps by way of an originating summons rather than a chamber application. The latter has the disadvantage of dragging in the private law technicalities of the Civil Procedure Code and the Evidence Act into public law proceedings (see for instance, Mwakibetes case at the High Court lever). Furthermore, as a chamber application an important judicial process ends up being heard in chamber rather than in an open court, which is not desirable. 2, The Attorney General could be brought in as an interest party or amicus curiae as a matter of law. A practice rule within the Attorney General's Chambers should make it clear that in public law proceedings the AG's role is not that of supporting or defending the opposing parties but of upholding public law rights and interests, etc.

Marrying of Remedies This is one area where the Tanzanian case law has made a greater strike ahead of similar developments in England. This is particularly so with respect to interlocutory injunctions. Four issues have arisen in respect of an application for temporary made injunctions made together with an application for leave to apply for judicial review. First, whether typically private law remedies such as injunction can be married with prerogative remedies. Secondly, whether a temporary injunction may be granted before the leave to apply for judicial review is considered and determined. Secondly, whether an injunction, interim or final, may be issued against public government bodies officers. Fourthly, whether applications for interim orders are governed by the Civil Procedure Code Act, 1966 and the Government Proceedings Act 1967.

The first, third and fourth questions were explicitly considered y a path-breaking judgment of the High Court in the case of Kahama Gold Mines. In this case, the then state attorney, Mr. Chenge, representing the respondent Minister, took issue with the citing of Order 37

of the CPC as the enabling provision. Many private practitioners dealing with usually private law matters consider Order 37 as the source of the courts jurisdiction to issue interim injunctions.

Mapigano. J. in his usual succinct if brief, style, held that independently of any question as to statutory provisions the High Court has in general original and independent jurisdiction to issue interlocutory orders to prevent what it considers continuing or intended to a party where it appears to the court to be just as well as convenient. In effect therefore, the court was saying that as a superior court of record with unlimited jurisdiction, the high court has inherent jurisdiction to issue interim orders in the interest of justice. This position has been upheld in the later case of Gordhan and a recent ruling by Katiti, J. in BAWATA V.

Registrar of societies. In the later J. traced the source of this jurisdiction at law and equity to
section 2(2) of JALO, discussed above. The state attorney Kahama Gold Mines further argued that under the provisions of the General Proceedings Act and the CPC, the court had no jurisdiction to issue injunctions against the government and that, if at all it was minded to do so, it should issue a declaration instead of an injunction in terms of section 11(2) of the Government Proceeding Act. Mapigano J, held that neither the CPC nor the Government Proceeding Act was applicable to an application for prerogative orders because the Government Proceeding Act is basically designed to make private law applicable to the Government .. but matters relating to prerogative remedies do not belong to the province of private law. They pertain to public law Kahama Gold Mines was specifically followed in the later case of Gordhan in which kyando J. granted an order for a temporary injunction even before the leave to apply for prerogative orders had been considered, contrary to, for example earlier practice as example of Golchers case which incidentally was not referred to in Gordhans case.

The House of Lords considered all these issues in England almost six years later in the case of M v Home Office in which the law lords arrived at very similar conclusions. The


most comprehensive local decision on virtually the same issues is the case of Vidyadhar

Chavda v Director of Immigration. In a reasoned judgment and relying on M v Home Office Samatta J. adopted an expressly public law approach to resolve the contentions
raised by Mr. Mallaba, a state attorney in terms reminiscent of his colleague (Mr. Chenges) arguments in the Kahama Gold Mines case almost a decade earlier Samatta J. summed up his approach in a memorable passage at the end of his judgment thus:

if I may repeat what I ventured to say in my earlier ruling there is no room for doubt that this Court has the power to grant an interlocutory injunction before hearing an application for leave to apply for prerogative order. For the reasons I have given I am satisfied that the law, justice and common sense dictate that I uphold Mr. Mkonos contention that s.11 of the Government Proceeding Act does not stand in the applicants path in the instant application. Except to autocrats it must be intolerable that in a democratic society like ours courts should be impotent to grant a temporary injunction in favour of an individual who complains of unwanted or oppressive use of statutory powers by a government minister or official. It should be made perfectly clear. I think that this court can halt the bulldozer of the state before it squashes the right of an individual, company or society.

The authorities cited so far deal with interim orders which it is now well settled can be combined with prerogative remedies. My limited research has failed to locate any direct authority on the marrying of final private law remedies such as permanent injunctions and declarations, with public ones. Working from first principles though and extending existing authorities (all other things being equal) it is submitted that the court has powers to marry private and public law remedies in an appropriate application. Probably the most contentious one in this regards would be compensation or damages. This too would be so not on any matter of principle but simply because damages and compensation have to be proved specifically by evidence and judicial review proceedings are not best suited for this.


Finally it must also be pointed out that just as public and private law remedies can be combined in judicial review proceedings, so also public law remedies can be combined in judicial review proceedings, so also public laws remedies such as certiorari and mandamus can be granted as collateral remedies in private law proceedings, initiated for example by a suit. It was also held by the court of appeal in the leading case of Patman Gaments v Tanzania Manufacturers which was subsequently approved in Kaijage V. Esso.

I now turn to discuss two aspects of judicial review which remain undeveloped.

Matters of Evidence: Discovery by inspection and interrogatories Evidence in Judicial review is mainly by affidavits. In theory the deponent can be cross examined but this is rarely done in practice. In most judicial review applications, affidavit evidence should suffice. More so if our state attorneys representing public bodies were not hung up with private law approaches where counter affidavits read like statements of defense denying even obvious facts and putting the applicant to strict proof thereof.

But there is another potential way forward by which judicial review cases could expeditiously be fairly disposed of in the interest of protection of law rights. This is by permitting discovery by inspection of by administering of interrogatories. As a matter of fact this method of discovering and producing evidence is most suitable to public law proceedings. In a large number of cases an applicant is unlikely to posses relevant documentary evidence of how the decision being impugned was arrived at. etc. through this discovery and inspection, crucial documents and process of executive decision-making would be brought to light. This would not only assist in disposing fairly and justly of the application before the court but in the long run also work in favor of open government and transparent decision making. Thus with cooperation from public bodies- which ought not to deny access to relevant documents in the interest of fair and transparent administration and liberal attitude on the part of the courts, judicial review can be further facilitated as a mechanism of control of public power. In England, as far as I can gather, the courts are still reluctant to order discovery. I have not come across any Tanzanian authority on this. In principle, I suggest, the court has inherent


powers to do justice and under that jurisdiction may order discovery on application. This is an area that need not await any legislative action and can be developed by judicial creativity.

Private Bodies with Public Functions The leading case of Patman Garments put to rest hair-splitting distinctions (for an example the Joseph Kassian) that used to be made between quasi-judicial, administrative and ministerial bodies of functions to determine whether a body was amenable to supervisor jurisdiction of the courts. What is important to look at is not the nature o character of the decision-making body but rather the character of the decision made. if the decision involves that is to say, rights of an individual, such a decision is reviewable. It is now also well-established by Tanzanian case law that public bodies and official as well as domestic tribunal (Clubs, Sport Association, and Societies) are amenable to judicial review. Thus government ministers, other public officials and bodies exercising public functions under the authority of law including statutory corporations (for example, Institutions Of Higher Education, National Housing Corporation, Workers Development Corporations) etc. (see Simeon Manyaki V The Institute Of Finance Management, Sylvester Cyprian V University Of Dar Es Salaam, Lausa Alfan Salum V Minister Of Lands & National Housing Corporation) could be subjected to judicial scrutiny. the high court has also delivered bold judgments that the president does not have prerogative power of dismissing a public servant at his pleasure (see James Gwagilo V Attorney General And Said Juma Muslim Shekimweri V Attorney General).

A body which is not directly established by statute but is regulated by it and is, therefore, deriving some of its powers under statute is also amenable to judicial review. A good example is a school regulated by National Educations act (see Nyirabu V Attorney General & Board Chairman, Songea Boys Secondary School).

What is contentious, and not settled yet, is whether a private body exercising public functions fall under the courts supervisor jurisdiction. With privatization on the one hand, and the state shedding off its traditional functions on the other hand, this issue becomes quite significant. In England the courts have not been slow to assert their supervisory


jurisdiction over such bodies. in the English case of r v Panel on Take overs and Mergers exparte Datafin, Lloyd J having posited statutory bodies or bodies whose source of power is statutory, and which are subject to judicial review, at the one end, and bodies which derive their power purely from contract, which are not subject to judicial review, that the other hand made this significant observation:

In between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercises of its function consequences, then that may. be sufficient to bring the

have public law

body within reach of judicial review. (Quoted in de Smith 1995:181-2)

The approach, based on the type of power and its consequences rather than its sources, is commendable and provides another potential area for judicial creativity by our courts in appropriate cases. In several cases involving the power of the National Housing Corporation, until recently a monopolistic land lord, to raise rents and evict without court orders, the court of appeal surprisingly has been very reluctant to exercise its supervisory jurisdiction (see Juthalal Velji v THB and Lausa Alfan Sakum v Minister of Lands & National Housing Corporation). In the assistant Registrar of Buildings v Frederick G. Kibwana, the Court of Appeal overruled the decision o the High Court granting certiorari to squash the decision of the registrar terminating tenancy on the grounds that certiorari being a discretionary remedy for the courts to issue, it cannot be issued in this case where there is already a contractual relationship between the landlord and tenant a relationship of a commercial or business nature. This is surprising because the Registrar of Buildings, ad now its successor f the National Housing Corporation, is a statutory corporation and has been exempted from the regulatory scheme of the rent restriction acts. One would have though that these would have been valid grounds for court to exercise its supervisory jurisdiction.

I now proceed to another aspect of judicial review where our courts have made a great contribution in expanding the scope. In his case the grounds, of judicial review.


Reasonableness Reasonableness or Right to Reasons Reasons In recent cases the courts have approvingly applied Lord Diplocks three fold summery of the grounds for judicial review, that is, illegality, irrationality and procedural impropriety. This list is not exhaustive and what is more, within each one of the heads there is a potential for further deepening and broadening of the categories. One of the most important categories, in my view, is irrationality, which besides capturing the previous formulation of unreasonableness as a ground for invalidity goes further and makes it almost obligatory for an administrative body to give reasons for its decision for irrationality. In discussing the security of employment Act 1964, in terms of which a reference may be made to the minister by a party aggrieved of a decision made by a labour conciliation board, samatta J. in a leading judgement in Tanzania Air Services v minister of labour held that the minister ought to give reasons and the past practice as well as judicial authorities did not place such an obligation on him. As a matter of fact, in Makame, Js words, the ministers act was purely ministerial.. Tanzania Air services is undoubtedly a great step forward it remains to be seen whether other judges will follow suit. lest it be struck down

Mean while it must be pointed out that the court o f appeal missed an excellent opportunity in Mwakibetes case to lay down authoritatively the right to reasons in administrative or quasi judicial decision making. That the whole case birth in the court of appeal and high court proceeded on private law issues such as adminissibility of evidence, the doctrine of estoppels etc. in the course of its judgment, the court of appeal, speaking, though Ramadhani J, went so far as to hold that the appellant was entitled, to get a copy of the report of the commission which had been appointed to investigate him and a s a result of whose report the president removed the judge from office. Yet, it fell short of holding that under the circumstances, without the commissions report, the presidents decision to remove the judge lacked reasons. Therefore it was irrational and hence subject to be quashed by certiorari.

To be fair it is necessary that the applicant himself who had argued his own case did not raise grounds for his application for certiorari in this fashion. Perhaps Mwakibete will turn


out to be a transitional point between private law and public law approaches in our jurisprudential history of judicial review.

Judicial Review Procedures and Fundamental Rights The parliament passed the Basic Rights and Duties enforcement Act 1994, no.33. The Act provides the procedures for filing applications for breach or apprehended breach of fundamental rights provided in Articles 12 to 29 of the constitution. Section 4 provides where a person is alleging an existing or apprehended breach of his fundamental rights, he may without prejudice to any other action with respect to the same matter that is lawfully available, apply to the high court for redress. Section 8(1)b gives powers to the high court( constituted by a bench of three judges under section 10(1) to hear and determine the application and to make such orders and give directions as it may consider appropriate for the purposes of enforcing or securing of any of the provisions of sections 12 to 29 of the constitution. Three issues have arisen either in academic discourse tangentially on this Act. First whether the procedure provided in the basic rights act is exclusive. That is to say, whether other existing ways of approaching the high court to redress ones fundamental rights for example through judicial review proceedings discussed in this paper, have been jettisoned. Second, whether the constitutionality of certain acts or provisions cannot be challenged collaterally in other proceedings. Thirdly whether under the basic rights Act the court is barred from granting remedies in the nature of prerogative orders such as certiorari, mandamus etc. in view of the provisions of section 8(4)

In answering these issues it must be kept in mind that the basic rights act must be read together with Article 30(3) which stipulates the rights of access to the High Court where a person alleges a breach of his fundamental rights. The Basic Rights Act is to facilitate access to court and not to obstruct it. Therefore, it should be construed purposively to achieve that overriding objective.

In the light of this premise, the first question is relatively easy to answer. The remedies that can be granted by the high court in constitutional cases is wide and its list closed. What is


important is to grant an appropriate remedy that would redress the wrong adequately. As a matter of fact in other jurisdictions, the court has gone very far to forge new remedies. There are ample authorities on this. This means that under section 8 the High Court can grant any appropriate remedy, including order s in the nature of certiorari o r mandamus, without being bound by the procedures stipulated in Part VII of the Law Reform Fatal Accidents Ordinance Cap 360. If, as has now been settled by the court of appeal, certiorari, a court ought not to feel constrained to do in a constitutional matter. So section 8(4), in my view is facilitative rather than obstructive.

Secondly, I would suggest that the existing methods and ways, including collateral, of raising constitutional challenges have not been excluded by basic rights Act provided the matter is before the High Court. Any other reading of the provisions of the basic rights Act provides an exclusive procedure for vindicating fundamental rights for the simple reason that the Basic Rights Act covers only Articles 12 to 29 of the constitution. It cannot possibly be the intendment of the Parliament to provide an exclusive procedure for Articles 12 to 29 while other constitutional provisions can be interpreted by the High Court under other procedures. Thirdly, constitutional matters including breaches of basic rights can still be raised through judicial review procedure for two reasons. It is now established that an introduction of a bill of rights expands, not contracts the scope of already rights and remedies whether their source is s statutory or common law. Since access to court was already available through judicial review, it cannot be whittled down by the provision of a bill of rights in the constitution. The second reason is the section 17A(2) of the law Reform (Fatal Accidents) ordinance provides that no proceeding involving the interpretation of the constitution with regards to the basic freedoms can be commended or continued without summoning the Attorney General. This provision which has not been repealed following the Basic Rights Act, assumes that it is possible to raise constitutional matters in proceedings other than those initiated under the Basic Rights Act.

In this however, my interpretation runs counter to Mackanjia Js decision in NMC v Hamis Juma in which he held that the constitutionality of a statute cannot be assailed in an


application for prerogative orders. With respect, it is submitted that the decision in per

incurium because the court never had the opportunity to consider the various arguments
and decided authorities in the matter. Be that as it may, the point I want to make is that judicial review, which is a very important part of the High Courts jurisdiction, would be the poorer if the judges held that they did and do not have the power to hear and determine breaches of the constitution, including those of fundamental rights in judicial review proceedings. Such a position would lead to absurd results. To give only two examples;

The principles of natural justice constitute one of the most important grounds of an application for judicial review. These principles are also now codified, so to speak in article 13(6) of the constitution. Could it be argued therefore that, a single high court judge couldnt entertain an application for judicial review on grounds of breach of the principles of natural justice because that would involve considering the provisions of Article 13(6) of the constitution? The answer to that rhetorical question is obviously in the negative. A single judge constitutes the High Court. It derives its jurisdiction to entertain applications for judicial review as well as constitutional matters, as already argued from the constitution, the basic rights Act, an ordinary Act of parliament can not take away that jurisdiction.

Take another example, an application for the writ of habeas corpus has for centuries been the revered method of challenging illegal detention or protecting the right of an individual to liberty, which is entrenched in our constitution. In Tanzania, the procedure for habeas corpus is applications is governed by the Criminal procedure for habeas corpus applications is governed by the Criminal Procedure Act, 1985 (No.9) and habeas corpus rules made there under. Does the basic rights Act imply that habeas Corpus procedure is no longer available to an aggrieved party who wants to challenge the constitutionality and legality of his detention because that would involve invoking provisions of the bill of rights? Again, in my submission, there was no such intendment behind the Basic rights Act. Asking these questions is sufficient to raise a hope that in an appropriate case the Court of Appeal is likely to restore judicial review, including the writ of habeas corpus, as available procedures ( additional to those in the basic rights Act) for redressing constitutional wrongs and protecting constitutional rights and freedoms.