CTL CLASS – 12TH APRIL 2011)
© JABA SHADRACK, Department of Public Law, School of Law (Formerly, Faculty of law) at the University of Dar es Salaam, Tanzania
(1) Introduction to legislative powers
(2) Other names for/of 'Delegated Legislation'
(3) Definition of 'Delegated Legislation'
(4) Legal basis of 'Delegated legislations' in Tanzania.
(5) Who makes 'Delegated Legislation?'
(6) Categories (types/forms) of 'Delegated Legislation'
(7) Status/position of 'Delegated Legislation' in relation to Principal Legislation
(8) The Rationale of having 'Delegated Legislation'
Introduction to legislative powers
(a) The principle of Separation of power [Article 4 of the Tanzania Constitution] and the concept of check and balance.
(b) Legislative powers of the Parliament [Article 64(1)(2) of the Tanzania Constitution] and the concept of Supremacy/ sovereignty of the Parliament.
Other names for/of 'Delegated Legislation'
(a) Subsidiary Legislation
(b) Subordinate Legislation
(c) Secondary Legislation
Definition of 'Delegated Legislation'
'The act of granting another the power to act on one's behalf'. (Per Webster's New World Law Dictionary).
The Interpretation of Laws Act (Cap. 1, RE: 2002), section 4
"Subsidiary Legislation", means any order, proclamation, rule, rule of court, regulation, notice, by-law or instrument made under any Act or other lawful authority.
The Oxford Companion to Law (by David M. Walker, 1982, p. 347).
"Delegated Legislation" means legislation made not by Parliament but by persons or bodies on whom Parliament has conferred power to legislate on specified subjects.
Wikipedia, the free encyclopedia (available online)
"Delegated Legislation" is a law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation. It is law a made by a person or body other than the legislature but with the legislature's authority.
Legal basis of 'Delegated legislations' in Tanzania
The Constitution of the United Republic of Tanzania, 1977 (RE: 2005) Article 97(5)
"The provisions of this Article or Article 64 of this Constitution shall not prevent Parliament from enacting laws making provisions conferring on any person or department of Government the power to make regulations having the force of law or conferring the force of law on any regulations made by any person, or any department of Government".
"An Enabling Act" is referred to as a principal legislation (made by the Parliament) which confers legislative powers to individuals (public/civil servants), department or agency of the government to make delegated legislation. For example, Sections 153, 155, 160, 161, 162, 163, 168, 169 of The Local Government (District Authorities) Act [RE 2002] and Sections 88, 89, 90 and 94 of The Local Government (Urban Authorities) Act, [RE 2002], section 12 of The Appellate Jurisdiction Act (RE: 2002, Chief Justice to make rules].
***Section 33(1) of The Arms and Ammunition Act (RE: 2002) provides that, "the Minister may, after consultation with the Arms Authority for Tanzania Zanzibar, make regulations…."
Who Makes Delegated Legislation?
Normally, the Enabling Act provides (with certainty) a person or a government body (whatever the case may be) responsible to make a delegated legislation. In practice, delegated legislations are made by Ministers, Local Governments/Authorities, Directors, Commissions, Boards, the Chief Justice, the Speaker of the National assembly, the President and etc.
Categories (types/forms) of 'Delegated Legislation' (The Commonwealth approach)
(i) Statutory Instruments (Delegated Legislation National wide in scope): Delegated Legislations which inserts/fills detail to Acts of Parliaments (namely as Rules, Regulations, Schemes and Orders). They are issued by a respective Minister, or The C.J (Court Rules).
(ii) Orders: Made by the Minister to dissolve or create a public body or setting the date for commencement of an Act of the Parliament.
(iii) Regulations: Made by the Minister setting out in detail how an Act of the Parliament is to be implemented.
(iv) Rules: Made by the Minister, Courts/Tribunal officials setting out procedures
(v) Directives/Directions/proclamations: made by the Minister (or any other relevant authority) giving binding instructions to public body about how it should discharge its powers.
(vi) Orders of Council: (In UK) made by the Lords of the Privy Council in their own right. Intended to regulate bodies which the Privy Council exercises a supervisory function, e.g. professional bodies and the higher education sector.
(vii) By Law (Delegated Legislation with limited application)
Delegated Legislation made by Local Authorities to deal with matters which affect their locality.
(viii) Orders in-Council (In UK): They are made by the Queen on the advice of the Government and are usually made when Parliament is not sitting. They can be used by the Government in emergency situations.
Status/position of 'Delegated Legislation' in relation to Principal Legislation
Delegated Legislations are inferior/ subordinate to Principal Legislations (i.e. any Delegated Legislation which is inconsistence with any Act of the Parliament is null and void). However, a Delegated Legislation which is properly enacted becomes part and parcel of the law of the land (like any other law) capable of being enforced in the Court of law.
Sections 41 and 42 of Cap. 1 provides that;
"41(1) A reference in a written law to a written law shall be construed to include a reference to any subsidiary legislation made under that written law.
(2) A reference in a written law to an Applied Act shall be construed to include a reference to any subsidiary legislation made under that Act.
42. Any act done under subsidiary legislation shall be deemed to be done under the written law under which the subsidiary legislation was made."
The Rationale of having Delegated Legislation'
(i) To reduce Parliament's workload/the Parliament does not have time to legislate on everything/to save Parliament's time.
(ii) Decentralisation and devolution of powers to local authorities.
(iii) To meet local variation
(iv) To meet emergency or contingency matters, e.g. war, public health
(v) To ensure flexibility in law making in dealing with changing circumstances
(vi) To handle technical aspects of the subject matter.
**Delegatus non potest delegare (delegated powers cannot be delegated any further) v/s delegated legislation
**Alter ego principle (acting in other self/extended arm) v/s delegated legislation.
Quiz for the recap. (Prelude to lecture II)
(1) Define what is meant by delegated legislation and how delegated powers are granted.
(2) Describe the main forms of delegated legislation.
(3) Identify the main reasons for delegated legislation.
(4) Differentiate between Enabling Act, and Enabling Provision.
(5) Show the basis of Ministers and local authorities to make delegated legislations?
(6) Who exercises power to make delegated legislation?
REFERENCES: Available at the law collection, UDSM - Main Library.
De smith, et al (1981) Constitutional and Administrative Law, 4th ed., Penguin Books Ltd. (**Law KD 3930. D3).
Thakker, C.K (Justice Takwani) (1998) Lectures on Administrative Law, 3rd Ed. Lucknow, Eastern Book Co., India. (**Law KPN. T45).
Oluyede, P. (1973) Administrative Law in East Africa, (1981 Reprint), Nairobi, Kenya Literature Bureau. (**Law KRD. O51).
Wade and Forsyth (2000) Administrative Law, 8th ed. Oxford, Oxford University Press. (**Law KD 4879. W3).
Mandi, I (mimeo) 'Lecture Notes in Administrative Law', UDSM – School of Law.