JUDICIAL REVIEW IN NEED OF REFORM: ASSESMENT ON THE STREN

GTHS AND WEAK POINTS OF THE PROCESS.

Abstract

Judicial review is an important weapon in the hands of judges of the country by which an ordinary
citizen can challenge on oppressive administrative action. A judicial review by means of prerogative
order is one of those effective ways employed to challenge administrative action. Therefore in this
piece of paper I am going to evaluate the strengths of this judicial review as an important weapon
used by citizens to challenge the administrative actions. For example in Patman Garments
Industries Ltd Vs Tanzania Manufacturing Ltd1, the issue was whether the court had power to
impugn the validity of the president to revoke a right of occupancy. It was held inter alia that
‘’courts have power to review administrative actions made with reference to executive functions of
the president under the land ordinance (now the land Act) if he has acted either improperly or
mistakenly.’’

This paper discuses that despite the intention of the law to help ordinary citizens to access the courts
and challenge administrative actions made by the executive arm of the government, tribunals, public
bodies and others, judicial review as illustrated above still this process has got some of the
weaknesses which needs the reforms in order for the process of judicial review as a whole to be just
and fair.

Key words

Judicial review, Prerogative orders, strength of judicial review, Weaknesses of Judicial Review

1.0 INTRODUCTION

Judicial review is a re-visit by superior court of decisions passed by administrative bodies,

subordinate court or tribunal to check its legality. High Court of Tanzania has original jurisdiction on
reviewing decisions of administrative bodies. Judicial review is a court process which intends to
check the legality of all procedures applied to reach a decision by administrative bodies. The High
Court may enter prerogative orders if, there is clear evidence that, the decision passed by
administrative body is ultra vires, illegal, un-reasonable or passed without regarding procedural
requirements set by laws. Under Illegality one can challenge on excess of jurisdiction, absence of
1
[1981] TLR.303
power, unlawful delegation, an error of law on the face of records, Improper motive/purpose, in the
case of Lord Diplock in Council of Civil Service Union v Minister for the Civil Service [1985]
Section 17(2)2, impose powers to the High Court to issue prerogative orders against any public
department or body or any individual with administrative powers which may affect rights and well
being of citizens.
1.1 CONCEPT OF JUDICIAL REVIEW

Various scholars have tried their level best to define or elaborate the term judicial review, of which I
agree with their definition but the emphasis that I want to put in those definition is that judicial
review as the process is the power of courts to decide the validity of acts of the legislative and
executive branches of the government. In Tanzania, it is the High of Tanzania which has original
jurisdiction to order various prerogative orders if, there is clear evidence that, the decision passed
by administrative body is ultra vires, illegal, unreasonable or passed without regarding to the
procedural requirements set by law. Section 17(2) of the Law Reform [Fatal Accident and
Miscellaneous Provisions] Act2 imposes powers to the High Court to issue prerogative orders against
any public department or body or any individual with administrative powers which may affect basic
rights and well being of citizens.

2.0 PREROGATIVE REMEDIES/ORDERS

Prerogative remedies are remedies issued by the High Court for the supervision of subordinate
courts, tribunals and other bodies exercising judicial or quasi-judicial functions. The aim is to keep
subordinate courts, tribunals and other bodies exercising judicial or quasi-judicial functions to act
within their proper jurisdiction. The High Court of Tanzania does issue prerogative orders in the
exercise of its power of judicial review by virtue of section 2 the Judicature and Application of Laws
Act.3 Those remedies are being issued by the High Court and have provided to be a very effective
means of securing the rule of law as explained in the case of Lausa Alfan Salum and 116 others v.
Minister for Housing and Urban Development and National Housing Cooperation4, that whether
prerogative orders may be issued and when judicial review of administrative action is possible,
stated that any action of a public official done in official capacity is challengeable on the ground of
illegality, irrationality and procedure impropriety may be issued in certain cases either quash a

2
The Law Reform (fatal accidents and miscellaneous provisions) Act
32
[Fatal Accident and Miscellaneous Provisions]
3
[Cap 358 R.E 2019]
44
(1992) TLR 293 HC
decision in the cause of performing a public duty or to prohibit the performance of a public law.
Remedies are certiorari, prohibition and mandamus.

Some of the prerogative remedies

2.1.1 Prohibition

Prohibition is an order issued primarily to prevent an inferior court or tribunal from exceeding its
powers or acting against the rules of natural justice. In the case of Re. Godden5 held that a Chief
Medical Officer of police authority certified that Godden was suffering from disorder, the authority,
employer of Godden wished to retire him compulsorily, to do this; the authority was required by a
statute to refer Godden’s condition to a doctor. The High Court held that the decision of the Chief
Medical Officer virtually affected Godden’s whole future career and therefore, he had to act
judicially. Therefore, the court issued the order to prevent the Chief Medical Officer from acting.
Prohibition is a discretionary remedy. The existence of another alternative, adequate and equally
efficacious remedy is a matter which may be taken into consideration by the High Court in granting
a writ of prohibition.6

2.1.2 Mandamus

Mandamus means a command to a person to do something which is his/her legal duty. It is

discretionary remedy. It will not issue where there is a plain, speedy, and adequate remedy at law;
and it is the inadequacy not the mere absence of other legal remedies that generally determines the
propriety of issuing an order of mandamus. Many courts refuse the writ when it will not serve a
useful purpose or where it would be ineffectual as where the defendants cannot perform the duty; or
where the act in issue is expressly prohibited by statue or judicial decree.

In the case of Obadia Salehe v. Dodoma Wine Company Ltd7held that the authorities go on to
state that such alternative remedy should be speedy, convenient, beneficial or effective. That is far
from saying that the existence of alternative an automatic bar to judicial review. The availability of
an alternative remedy is only one of the matters to be taken into account by the court.

5
(1971) 3 All. ELR 20
6
Takwani, op.cit p. 310
7
(1990) TRL 113
2.1.3 A affirmation

A declaration of the statement of legal position in the matter before the court. 8 The court may simply
declare that neither administrative action nor decision is valid or not. A declaration lacks coercive
power as the case has been in Tanzania with High Court declaring some statutes null and void and
wait for responsible authority to rectify the situation. The essence of a declaratory judgment is that, it
states the rights or the legal position of the parties as they stand without altering them in any way
though it may be supplemented by other remedies in sustainable cases. A declaratory judgment by
itself merely states some existing legal situation. It requires no one to do anything and to disregard it
will not amount to contempt of court of law.9

2.1.4 Habeas corpus

This is an order requiring a person having custody of a prisoner to bring him before a court of law
together with the grounds for detention. The court then tests the legality of the detention and directs
release of if the imprisonment is found to be unlawfully. In the case of Sheikh Abdulla v. Regional
Police Commander, Dar es Salaam and Two others10, the President of the United Republic of
Tanzania had made an order that the applicant should be deported to Zanzibar from Tanzania
Mainland that is, Tanganyika, under section 2 of the Deportation Ordinance (Act).

3.0 STRENGHTS OF JUDICIAL REVIEW

Judicial review is really the only way of compelling a public authority to recognize its unlawful
behavior and to act lawfully. Done properly it provides a very powerful mechanism to force a public
authority to act within the law. If you ‘win’ a judicial review, then it will often force a public
authority to act lawfully in the future and may clarify a point of law for other public authorities too.

There are various strengths of judicial review are as follows

3.1 Judicial review underpins parliamentary sovereignty

8
https://www.academia.edu/36797959/
ADMINISTRATIVE_LAW_II_PREPARED_BY_DATIUCE_DIDACE_LWABUGI
9
Takwani, op.cit
10
[1985] TLR 1 HC
Judicial review acts as a pillar in which normal citizens can decide to challenge various
administrative actions or legislations enacted by the parliament but which does not conform to the
Constitution of the United Republic of Tanzania as per article 64(5).11 It is there for ensuring that
government organizations act in accordance with statutory powers. In this sense judicial review
underpins parliamentary sovereignty by application of the ‘ultra vires’, which is constitutional
justification for judicial review from the need to ensure that decision-makers act within the powers
conferred by legislations enacted by the parliament. To cement what has been stated above,
mandamus as one of the prerogative remedies justifies the above point in the sense that the court can
declare certain provisions of the law enacted by the parliament upon application of mandamus which
seeks the court to compel a certain person or authority to do something which the complainant thinks
that it is bad. In the case of Rebeca Z. Gyumi vs Attorney General,12 where sections 13 and 17 of the
Law of Marriage Act was declared unconstitutional for offending the constitution of Tanzania and
the Attorney General was compelled to do the corrections of the sections mentioned above to include
18 years as eligible age for marriage in respect of both boys and girls.

3.2 The courts through exercising judicial review become guardians of the constitution.
This is evidenced by various decisions which the high court of Tanzania has ruled in favor of the
applicant who’s his or her right was infringed by the executive arm of the state. In Festo Balegegele
and 794 others v Dar es Salaam City Council,13 the high court nullified the action of the Dar Es
salaam City Council of depositing wastes at the applicants’ residence. The applicants were residents
of a suburb of Dar es Salaam where the City Council dumped waste and refuse which attracted
swarms of flies. When the rubbish was set on fire, a lot of smoke and foul smell was produced and
inconvenienced the neighborhood. The applicants applied for orders of certiorari to quash the
decision of the City Council of dumping waste; prohibition, to stop the City Council from continuing
that nuisance; and mandamus, to compel the respondent to discharge its functions properly by
establishing and using an appropriate site. In this strengths all the three remedies were applied and
granted by the court to the applicants hence proving the advantages of judicial review

The application was granted by the High Court. A number of findings were made: One, the City
Council’s action was ultra vires the Local Government (Urban Authorities Act, 1982. Two, the
1116
Cap 2 as amended from Time to time.
12
Misc civil cause no 5 of 2016, High court of Tanzania ,DSM main Registry(unreported)
1317
Misc. Civil Cause No. 90 of 1991, High Court of Tanzania at Dar es Salaam (unreported).
18
Alexander Hamilton Federalist book
action was contrary to the City’s Master plan. Three, it was not a statutory duty of the respondent to
create nuisance but to stop it and avoid to endanger the residents’ health. Four, Article 14 of the
Constitution, which guarantees the right to life and its protection by the society was breached.

3.3 Judicial Review could also be seen as a manifestation of separation of powers.

This process ensures that nobody has too much power and supposes a system of checks and balance
to guard against abuse of power. The principle of judicial review has its roots in the principle of
separation of powers. Separation of powers was introduced by Baron de Montesquieu in the 17th
century, but judicial review did not arise from it in force until a century later.

Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial
tribunals to adhere to the latter and disregard the former.

The doctrine is justifying court intervention and is limiting the role of courts.14 In the case of Saed
Kubenea Vs The Attorney General of the United Republic of Tanzania,15 prohibition as one of the
prerogative remedies was sought by the petitioner to first to seek proper interpretation of section
25(1) and (2) of the Constitutional Review Act from the court and to prohibit the constituent
Assembly from altering the contents of the Draft constitution. At page 19 of the said judgment the
court held the following

“ It is thus our finding that as a court of law, it is not within our prerogative to enquire into the way
the constituent Assembly goes about discharging its powers under section 25 of Constitutional
Review Act.”Therefore this proves the saying that judicial review secures separation of power and
the doctrine of checks balance of power among the three organs of the state.

4.0 Weaknesses of Judicial Review Process

One of the weaknesses of the judicial review process which is important for a person who is
applying for, is the cost and the limited circumstances, especially when legal aid need to be
granted. These limit the justice for citizens, who fall outside the narrow legal aid ground.

4.1 Obstruction the doctrine of separation of Power

In Tanzania we have three organs of the state include executive, legislature and judiciary. Both
organs assigned under constitution the separate functions which are to be performed without
1414
Article 4 of the Constitution of the United Republic of Tanzania of 1977 as amended from time to time
15
Misc. Civil cause no 28 of 2014, HCT Main Registry at DSM
interference between the organs. Judicial review is considered as a process which goes against a
constitutional principle of separation of powers by interfering matters adjudicated by executive.
Parties aggrieved by decision of executive may apply before High Court for review, when court
finds that there was irregularities, irrelevancy, procedural impropriety and un-reasonableness of
decision, the court may quash decision and order re-trial before same tribunal passed the decision.
Most of the prerogative orders tend to infringing decisions which affects the relationship between the
functions of legislature and executive. For example through certiorari and mandamus the court can
compel a public authority to do something which it has failed to do or it can rule out an order
quashing the decision of another organ of the state like parliament and therefore interfering the
doctrine of separation of power and we have seen this in a number of cases in the country like
Rebeca Z.Gyumi vs A.G and A.G vs Rebeca Z. Gyumi as well as in Festo balegele and 796 others
vs Dar es salaam City Council.

Montesquieu has earned himself the title of father of constitutionalism.

In his book “Esprit des Lois3,” Book XI, Chapter VI Montesquieu wrote:

“In every state there are three kinds of powers; the legislative power, the power executing
the matters falling within the law of nations, and the power executing matters which fall
within the civil law. Through the first, the Prince or Magistrate makes law for the time being
for all time, and amends or repeals those previously made.
Through the second, he makes war and peace, sends and receives ambassadors, establishes
order, and prevents invasions. Through the third, he punishes crimes adjudges the disputes of
private individuals. This last is called the judiciary power and the second is known as the
executive power.”

4.2 Prohibit the performance of particular activity and to compel the performance of a
particular activity.

As per our constitution, judiciary is the final organ which dispense justice. This is not a big deal
when it comes to judicial review, the judicial review process only conducts assessment of the trial
held before tribunal to check if all legal requirements were followed in making their decisions, in
judicial review the court of law is tied only to check the validity of the trial held by tribunal or
subordinate court and not to determine rights of parties. A court is prohibited to interfere powers of
executive by deciding matters originally within jurisdiction of executive, what court only do in
judicial review is to quash decision, to prohibit the performance of particular activity and to compel
the performance of a particular activity, the decision of core issues of the case are left to be
concluded by administrative bodies.

What actually court does in judicial review is to make comment on how the matters under review
held during original trial in administrative bodies. The comment of the court falls on legality of the
decision and not rights of parties, the court will order re-trial by the same tribunal or otherwise.

4.3 Interlocutory orders cannot be reviewed

Interlocutory orders are temporary writ of the main suit pending determination of the main case.
Judicial review lack powers in interlocutory orders unless they have elements to finalize the case.
Interlocutory orders are not subject to review, revision and appeal unless they have elements to
finalize the case. On this view, the judicial review has no purpose when it comes to a matter of
interlocutory writs.

4.4 Judicial Review is not an appeal

The court generally checks how the body gets at its decision rather than the merits of the actual
decision itself. Ally Linus and Eleven Others vs. Tanzania Harbors Authority& The Labor
Conciliation Board of Temeke District, Nyalali C.J (as he then was) observed that; Granting an order
of certiorari in this case would not amount to hearing an appeal from the Board; while an appeal
requires the appellate court to re-hear the case decided by the Board either generally or on particular
issues, in application for judicial review (certiorari) the High Court merely exercises its supervisory
function to ensure that the Board acts in accordance with the law Judicial review is a remedy of last
resort meaning that it is usually only appropriate when there is no adequate alternative way to
resolve the issue, like an appeal.

4.5 Judicial review process has a limited scope of its operation

One of the weaknesses of the judicial review process which is important for a person who is
applying for, is the cost and the limited circumstances, especially when legal aid need to be granted.
These limit the justice for citizens, who fall outside the narrow legal aid ground.
Another weakness observed in the process of judicial review is the limited scope of remedies
available to the applicant. Judges very often do not grant remedy by way of quashing the decision of
the public body. In most cases the decision is back to the public body to reconsider in light of the
court remarks. Also it needs to be taken under consideration the fact that too much power is in the
hands of unelected officials, judges are not always objective. They might have personal and
ideological stakes in juridical decisions.

5.0 Judicial Review delays the operation and implementation of important and pressing social
policies so necessary for the needs of a dynamic society.

This is evidenced by the kind of remedy the courts normally issue and always the courts while
exercising the process of judicial review does not provide a solution rather than it gives an order
which normally hinders the operation or implementation of the issues that arises in the country. 16

All the issues were also discussed in this work and regardless of the importance, consequences as
well as weaknesses in conducting a judicial review, in concluding something to consider as well a
point to note is that judicial review is not really concerned with the conclusion of that process but
rather the court will not substitute what it thinks is the correct decision. This means that the
public body or a tribunal which passed a decision will be able to make the same decision again, so
long as it does so in a lawful way.

6.0 CONCLUSION

Judicial review is a powerful tool to challenge unlawful decisions by government bodies; judicial
review checks government actions to balance its powers. Judicial review is important because it
prevents mis-use of administrative powers which may affect well-being of citizens. Reform to
judicial review process is necessary so as to add more powers to court to take any action on a matter
freely without limitations. Though some of decisions remain controversial, none of these decisions
would have been possible without judicial review. In every case (and countless others), the Court
used its power of judicial review to declare that an act by an administrative bodies or government
was null and void because it contradicted a constitutional provision. It is this power that truly makes

1616
Available from www.Brankart.com “judicial review with Merits and demerits”
the courts a co-equal branch of government with the executive and legislative branches and allows it
to defend the rights of the people against potential intrusions by those other branches.

7.0 RECOMMENDATIONS

The judiciary of Tanzania is entitled powers to dispense justice; this is the core function of judiciary
which is left to judiciary only. Judicial review is processes which ties hands of courts to some extent,
judicial review only determines legality or validity of the trial held at administrative bodies not the
rights of parties, the decision of court must not exceed limits to interfere the powers of
administrative bodies. This situation conflict the powers of judiciary by imposing limits to dispense
justice by judiciary, this is the transfer of powers of judiciary to other organs of the state particularly
executive.

Judicial review needs a reform so as to grant full powers to court to make decisions which goes far
more to determine rights of parties because that is the core function of judiciary. Making other
bodies powerful more than court in dispensing justice conflicts exclusive powers of court and it
subordinate mandates of court.

REFERENCE

The Constitution of United Republic of Tanzania Cap 2 of 1977 as amended

STATUTES:

The Law Reform [Fatal Accident and Miscellaneous Provisions] Act of 2002
The Judicature and Application of Laws Act [Cap 358 R.E. 2019]

CASES:

Lausa Alfan Salum and 116 others v. Minister for Housing and Urban Development and National
Housing Cooperation (1992) TLR 293 HC

Festo Balegegele and 794 others v Dar es Salaam City Council, Misc. Civil Cause No. 90 of 1991,
High Court of Tanzania at Dar es Salaam (unreported).

Patman Garments Industries Ltd Vs Tanzania Manufacturing Ltd [1981] TLR.303

Ally Linus and Eleven Others vs.Tanzania Harbors Authority& the Labor Conciliation Board of
Temeke District

ELECTRONIC SOURCES

www.lawteacher.net strength and weakness of judicial review retrieved on 23 th May 2021 at 8.00
pm.
www.Brankart.com “judicial review with Merits and demerits”
www.academia.edu/14502117 ”Judicial Review Case Notes”