STATUTORY IMMUNITY VS ADMINISTRATION OF JUSTICE

Michael M. Lucas

The main reason for having court systems in our societies is to make sure that justice is

administered, justly, equally and accessible to everyone. And with the help of different legal

instruments, nationally and internationally that provides for the means to the full attainment of

administration of justice, the court was made to be the unique abode of which individuals‟ rights

can be protected.

The doctrine of statutory immunity was first supported in 1871 in the case of Bradley v. fisher1

where the attorney attempted to sue a judge because a judge had disbarred him. The court held

that the judge was absolutely immune from civil suits arisen from his judicial acts. Thereafter

various legislations have broadened the doctrine of statutory immunity covering not only judges

and executive officials but also witnesses.

A word “Immunity” is defined as the state of being protected from something2 or simply

„exemption from liability‟. It is a ground that excludes the criminal responsibility of an

individual. It has the effect of rendering inadmissible any action brought against the person who

invokes it3. Statutory immunity provides for the exception from performing duties that the law

generally requires other citizens to perform or from penalty or burden that the law generally

places upon other citizens4.

1
80 U.S 335,20 L. Ed. 646.
2
Oxford Advanced Learner‟s Dictionary (2005) 776.
3
Dissenting Opinion of Judge Jean Yves De Cara in the Case Concerning Certain
Criminal Proceedings in France (Republic of the Congo v France) Provisional Measures
Order of 17 June 2003, ICJ Reports (2003) 102, 122.
4
www.legal-dictionary.thefreedictionary.com/ _/dict.aspx/rd=1&word=immunity
The provisions providing for statutory immunity are repugnant to the principles of administration

of justice like the rule of law, equality before the law and access to courts and they have made it

absolutely impossible for the people who have been infringed their fundamental rights to get the

full protection as guaranteed by a lot of legal instruments, internationally and domestically.

For example the Constitution of the United Republic of Tanzania5 provides for immunity which

is attached to the president and the members of parliament.6 And the same constitution also

provides for the adherence to the fundamental principles of administration of justice in Tanzania

under article 13 and article 30(3). As it was held in the case of Julius Ishengoma Francis

Ndyanabo v. The Attorney General7, that;

Access to court is, undoubtedly, a cardinal safeguard against violations of one‟s rights, whether those rights

are fundamental or not. Without that right, there can be no rule of law and, therefore no democracy. A court

of law is the “last resort of the oppressed and the bewildered”. Seeking a legal remedy should be able to

knock on the doors of justice and be heard.8

It therefore comes into conclusion that statutory immunity is in conflict with the concept of

administration of justice and in order to make the court to be the haven of justice where

fundamental rights of individuals will be safeguarded and protected, the laws that provide for

immunity should be revised to clarify on the issues of immunity and to avoid ambiguity in the

matters of translations in such a way as to meet the full attainment of administration of justice.

This will ensure that justice is administered in its full capacity without any impediments all over

the world.
5
R.E 2008, of 1977 as amended from time to time
6
Article 46 provides for Immunity from criminal and Civil proceedings that is attached to the
president, and article 100 that Freedom and immunity from proceedings to the parliament and the members
of the parliament
7
civil appeal 64 of 2001, Court of Appeal of Tanzania at Dar Es Salaam (2002) (unreported)
8
Julius I. F Ndyanabo v. The Attorney General, civil appeal 64 of 2001, Court of Appeal of
Tanzania at Dar Es Salaam (2002) (unreported)