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ADMINISTRATIVE TRIBUNALS IN TANZANIA


(CTL CLASS – 11TH and 12th MAY 2011)

  © JABA SHADRACK, Department of Public Law, School of Law (Formerly, Faculty of law) at the University of Dar es Salaam, Tanzania


Lecture outline:
  1. Introduction to Adjudicative/Judicial Powers in Tanzania
  2. Definition of Administrative Tribunals
  3. Other names for/of Administrative Tribunals
  4. Types and Examples of Administrative Tribunals in Tanzania
  5. Legal basis of Administrative Tribunals in Tanzania
  6. Ordinary Courts v/s Administrative Tribunals
  7. Inherent features of Administrative Tribunals
  8. Why Administrative Tribunals? (Advantages)
  9. Criticism of Administrative Tribunals (Disadvantages)
Introduction to Judicial Powers in Tanzania
Traditionally, the duty of determining disputes between individuals in the society is viewed as an exclusive domain of the ordinary courts of law. The conception of a court as a central adjudicative body found acceptance in most of the classical scholars' writings such as Montesquieu (separation of powers) and contemporary jurists such as Dicey (rule of law). The Constitution of Tanzania, 1977 (RE: 2005) under Article 4(1)(2) vests judicial powers in the Judiciary of the United Republic and the Judiciary of the Revolutionary government of Zanzibar. In the same vein, The Constitution of Zanzibar, 1984 (RE: 2006) under Article 5A(2) confers judicial authority to the Courts of law. Article 107A(1) of the Constitution of Tanzania (supra) cements and reiterate the above position by providing that;

The Judiciary shall be the authority with final decision in dispensation of justice in the United Republic of Tanzania.

Though the Constitution of Tanzania (supra) is very clear on which organ should exercise judicial powers, in reality many judicial functions have come to be performed by the executive, e.g. imposition of fines, levy of penalty, confiscation of goods, cancellation of licences and etc.

Summary:
Under the Constitution of Tanzania and Zanzibar respectively, the Courts of law have exclusive jurisdiction in the adjudicative system of the country.


  Definition of Administrative Tribunals

There is no universally accepted definition of the term Administrative Tribunals or simply 'tribunal' as per professor Jain. However, jurists, academicians, and administrators (politicians) have made several attempts to explain the same. Now, let us look at some of the definitions;
  • Thakker (Takwani, 1998)
Are bodies established to decide various quasi-judicial issues in place of ordinary courts.
  • Supreme Court of India, 1954.
Are adjudicative bodies constituted, manned and operated by the executive.
  • L.B. Curzon, Dictionary of Law, 6th Ed., 2002 (Pearson/Longman).
Are bodies outside the hierarchy of the courts with administrative or judicial functions.
  • Concise Oxford Dictionary, 10th Ed., 2001.
A body established to settle certain types of dispute.
  • E.W. Susan, Law Dictionary, 2006 (Webster's New World Law Dictionary).
An officer or other judicial body with the authority to pronounce judgment on a matter based upon the evidence.

 
Summary:
Administrative Tribunal/Tribunal may be referred to as a person or body of persons or administrative agency not forming part of the Judiciary with limited statutory powers to determine disputes and pass binding decisions between individuals, or individuals and officers in the Department of the government.

 

Other names for/of Administrative Tribunals
Administrative tribunals are also known as "Quasi-judicial Bodies", or "Statutory Tribunals".


 


Note:
Why do we call them 'administrative tribunals' or 'quasi-judicial bodies' or 'statutory tribunals'?
  • They are known as administrative tribunals because as opposed to ordinary courts, these bodies are composed and chaired by lay administrators (normally, non-lawyers) who are either appointees' of the President or Minister for a fixed term.
  • They are referred to as quasi-judicial bodies since they are not full-fledged courts (i.e. not courts of law properly so called, they have supplemental/complementally role to the Courts).
  • They are called statutory tribunals simply because they are creations of the statute.
Types and examples of Administrative Tribunals in Tanzania
Administrative tribunals are classified into two (2) major components, i.e. statutory authority, and statutory tribunal.

(a) Statutory Authority: 
This refers to individual holders of public offices who have statutory powers to hear disputes (in original or appellate jurisdiction/capacity). For example, labour officers and Minister for Labour in certain circumstances have statutory powers to entertain and make decisions on labour disputes between an employer and employee/s. **A 'single' person exercises judicial powers.

  (b) Statutory Tribunals:
These are adjudicative body or agency established by specific Acts of Parliament. Usually, the establishing statute will provides for composition (i.e. appointing authority, qualifications and etc), membership tenure, quorum, procedures and etc. **A 'group' of persons exercises judicial powers.

Examples;
  • Military Tribunal (Court Martial),
  • The Tax Revenue Appeals Board,
  • The Environmental Appeals Tribunal,
  • The Fair Competition Tribunal,
  • The District Land and Housing Tribunal,
  • The Ward Tribunal and etc.

    Legal basis of Administrative Tribunals in Tanzania
The Constitution
of Tanzania (supra) is silent as to the delegation of judicial powers to other organs of the state. However, by implication (not expressly provided) Article 13(6)(a) of the Constitution of Tanzania (supra) and Article 12(6)(a) of the Constitution
of Zanzibar (supra) recognise tribunals. The said Articles require "the Court" and "other agency" to take into account the principle of fair hearing in deciding disputes. Thus, one may argue that the term, "other agency" refers to administrative tribunals. All in all, it should be noted that administrative tribunals originates from respective Acts of the Parliament.

The best practice:
The Constitution of Kenya (2010),
Article 1(3)(c);
(1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.
(2) The people may exercise their sovereign power either directly or through their democratically elected representatives.
(3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution––
(a) Parliament and the legislative assemblies in the county governments;
(b) The national executive and the executive structures in the county governments; and
(c) The Judiciary and independent tribunals.


  Ordinary Courts v/s Administrative Tribunals


(a) Similarities:
  • Both are adjudicative machineries (i.e. invested with judicial powers).
  • Both are governed by Acts of Parliaments.
  • Both have permanent existence.
(b) Differences:
  • All courts are tribunals but not all tribunals are courts.
  • Courts are part and parcel of the judiciary while tribunals are considered part of the executive (i.e. they have hybrid functions).
  • Essentially, Courts have unlimited powers to adjudicate, but tribunals have limited adjudicative powers.
  • Courts handle disputes objectively, while tribunals deal with disputes subjectively.
  • Courts can decide the 'vires' (constitutionality/legality/fairness) of a legislation/law, but tribunals can not do so.
  • Courts are presided over by officers trained in law, while most of tribunals are chaired and composed of laymen.
NB:
It should be borne in mind that tribunals are not executive body or administrative Department of the state.
They are quasi-judicial body and not purely administrative in nature.

Inherent features of Administrative Tribunals
Administrative tribunals are characterized by following features;
  • Administrative tribunals are constituted by Acts of the Parliament (and not by Government) i.e. tribunals are statutory creatures'
  • Decisions of administrative tribunals are judicial rather than administrative. Tribunals decide on legal issues, in so doing, they confer or restrain rights to individuals.
  • Administrative tribunals do not deal with cases in which a government is a party. They adjudicate disputes between businessmen, employer/employee, landlord/tenant, and etc.
  • Administrative tribunals are not bound by strict rules of procedures, evidences and other legal technicalities.
  • They have judicial powers (e.g. to summon witnesses, pass legally enforceable decisions and etc).
Why Administrative Tribunals? (Advantages).
Legal scholars and policy-makers justify the existence of administrative tribunals by advancing the following reasons:-
Ordinary courts are very slow, costly (e.g. court and advocate fees), complex and formalistic in solving disputes. For examples a case may be pending in a court of law for two (2) to five (5) years. Thus, administrative tribunal emerged to ensure speedy dispensation of justice in vital areas of the economy.


  Note: 

Justice delayed is justice denied.

  •   Use of administrative tribunals avoids floodgate of cases in courts of law (i.e. reduce court's workload/congestion of cases in courts of law).
Administrative tribunals are better placed to take preventive measures, e.g. suspension, cancellation or revocation of a licence, destruction of contaminated articles, taking care of perishable goods and etc.


  Experience:

Court battle over the so called 'Magufuli fishes'
in 2010.


  •   Administrative tribunals have required expertise, specialty, and experience in their filed of operations, e.g. Doctors disciplinary bodies/tribunals. Disputes are dealt with persons with an intimate knowledge and experience of the problems involved.
  • They avoid legal technicalities/legalistic approach over disputes. Courts are very conservative, rigid and technical, e.g.
    precedent, stare decisis, rules of procedures, evidences, pleadings (use of legalese and legal documents and etc.
    They are characterised by an informal atmosphere and procedure.
  • Ensures effective implementation of socio-economic policies and schemes found in the statute.


     

    Summary:
    Cheapness, accessibility, flexibility (freedom from technicalities), expeditious, expertise, and efficiency

    Criticism of Administrative Tribunals (Disadvantages)
Opponents of administrative tribunals cite the following weaknesses;
  • The practice violates the principle of separation of powers. The main challengers of the use of administrative tribunals are professor Dicey (rule of law), and Montesquieu (separation of powers).
Speedy resolution of cases by tribunals may lead to injustices.

Note:
Justice hurried is justice buried.

  •   They have wide discretion thus making their decisions uncertain or unpredictable.
  • The right to appeal is not always guaranteed. Normally, statutes establishing administrative have phrases such as, "the decision shall be final and conclusive", "the decision shall not be appealable", "the decision shall not be subjected to judicial review", and etc. Such kinds of provisions have come to be known as "ouster clauses", "finality clauses", "protective clauses" or "preclusive clauses".
  • They are not always independent of the government influences. For example, Officers of the Ministry may form part of the panel/quorum, and usually members of the tribunals are appointees of the President or Minister.
  • In practice, administrative tribunals violates rules of natural justice i.e. they pass decisions without; giving reasons, hearing all parties, or adjudicates in matters that they have interest, or abdicate/sub-delegate their judicial powers to other agencies or person/s.

      Maxim:
Nemo judex in causa sua potest (i.e. no one can be a judge in his own cause); Audi alteram partem (i.e. hear both sides); Delegatus non potest delegare (i.e. delegated powers can not be delegated any further).

  •   Tribunals are manned by laymen and thus advocates are not allowed to appear.
  • Subordination of the ordinary courts of law.
        
NB:
The aspect of "Judicial control of administrative tribunal" will be covered under the caption, "Judicial control of Administrative Action/s (i.e. Judicial Review)".
H/Work:
  1. Show the differences between "administrative tribunals", "commission of inquiry" and "disciplinary committees".
  2. Name and explain any ten (10) administrative tribunals in Tanzania.
References:
[Available at the law collection, UDSM - Main Library]
Thakker, C.K (Justice Takwani) (1998) Lectures on Administrative Law. (Law KPN. T45). **Read,
pp.192-233.
Wade (1998) Administrative Law.  (Law KD 4879. W3). **Read, pp. 776-824.
   

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Author: Jaba Shadrack
Jaba is a Law Lecturer at the University of Dar es Salaam, School of Law and a blogger based in Dar es Salaam, Tanzania. Read More →

3 comments:

Pfahn said...

I am doing research on environmental courts and tribunals. I was wondering if Tanzania's Environmental Appeals Tribunal has actually functioned or if it has only been authorized by law, but not enacted. Thank you for any input you may have.

George Pring said...

Dear Pfahn,

Our research to date (October 2011) at the University of Denver Environmental Courts and Tribunals (ECT) Study is that Tanzania's Environmental Appeals Tribunal has been legislatively authorized but not established yet. It was authorized in Tanzania's Environmental Management Act of 2004 in Section 204, but we can find no evidence or reference to its being set up and operating. For a free, downloadable copy of our 2009 global study of ECTs, done with the aid of the World Resources Institute, go to http://www.law.du.edu/ect-study.

We are delighted you are doing research on ECTs and would greatly appreciate your sharing your study with us.

Professor George (Rock) Pring
University of Denver College of Law
2255 E. Evans Ave.
Denver, CO 80208 USA
email: rpring@law.du.edu

Jaba said...

Dear Prof. Pring,

I subscribe to your views that the Environmental Management Act 2004 expressly provides for the environmental tribunal but the same is yet to operate or to be erected. Again, at the moment there is no efforts (by the government) to establish/erect the same or actually to implement the provisions of the said Act to the fully or as per international standards.

However, the law in Tanzania allows such cases to be litigated in the High Court of Tanzania. the specific provision is Article 108(2) of The Constitution of the United Republic of Tanzania (1977) which read; .

....Where this Constitution or any other law does not expressly provide
that any specified matter shall first be heard by a court specified for that purpose,
then the High Court shall have jurisdiction to hear every matter of such type.
Similarly, the High Court shall have jurisdiction to deal with any matter which,
according to legal traditions obtaining in Tanzania, is ordinarily dealt with by a
High Court provided that; the provisions of this subarticle shall apply without prejudice to the jurisdiction of the Court of Appeal of Tanzania as provided for in this Constitution or in any other law.......

It should be noted further that, individuals may also file environmental related claims in surbodinate courts (to the High Court), BUT with strict observance of the law governing pecuniary and territorial jurisdiction of respective courts.

Thanks,

Jaba Shadrack
De facto, Assistant Lecturer
Department of Public law, School of Law (formerly Faculty of law),
University of Dar es Salaam

PO Box 35093 Dar es Salaam, Tanzania.
E-mail: jaba@udsm.ac.tz
jabashadrack@gmail.com