Administrative Law - Paper

Administrative law simply means that the branch of public law which deals with the organization and powers of administrative and quasi administrative agencies and prescribes the principles and rules by which an official action is reached and reviewed in relation to individual liberty and freedom. Technically, from the definition it is clear to state that administrative law is bound and founded to determine the legality of the government action, the nature and scope of the powers conferred to the government official through checking abuse of administrative power.
Meanwhile, the study of administrative law can be explained in broader after pondering the red light and green light theories, in which the red light theory views primarily that objective of administrative law is to consider the law and control the state power and desires to minimize the encroachments of the state on the rights of individual whereby this is monitored and controlled by judiciary. In connection to that, Green theory relies much in operation of the state in the sense that it allows the intervention of the state in larger public interest ensuring right of citizen and well being of society as whole and this can be achieved through freedom of information, active involvement, positive deliberation, effective consultation and other similar action at the level of administration.
In the same vein, the issue raised, if the means are not trustworthy, how the end could be? Just or unjust. In the light of the control mechanism discussion hereunder is considering intensively how far the means which are not trustworthy could result to unjust end.
POLITICAL PARTIES; as per the political parties Act ,is defined as any organized group formed for the purpose of forming a government or local government authority within the united republic through election or for putting up or supporting candidate to such election .
Now, the modern political thoughts tends to accept the notion that political parties are absolute essential to democracy so far the political parties try to crystallize many shades of opinion into one coherent policy unify many diverse element into one manageable unit. The political parties are manifested from the right of freedom of assembly as stipulated in the constitution .The political parties are mechanism to perform an important function of interest articulation, whereby an individual finds out the open channels to express their interest and needs, and also performing function of interest aggregation ,where peoples demands converted into general policy alternatives. Therefore in modern democracy ,it has always been necessary to guarantee and protect the freedom of assembly ,in that line it is one of the platform for attainment of social development and nurturing of democratic advancement in a given society. But the situation contrary to our country today, the right is restricted and its enjoyment subjected to the laws of the land, the problem comes in the course of interpretation and ,implementing the realization of this right.
Experience can be drawn respectively from Tanzania, that the state limits the occupation of political parties so as to enhance the sustainability of state powers, there various laws and aspect which curtails the freedom of association for political parties and its operation .Starting with:-
Cumbersome procedures for the registration of Political parties. it is a requirement of the law under political parties Act that any political party upon the request for registration must have at least 200 members from ten different region in the country. this number is too large and unrealistic especially in Tanzania where democracy is at infant stage. this provision denies the nourishment of democracy.Forinstance the denial of CCJ(chama cha jamii).Also under the same act it is provided that any political party ,by its constitution advocates the break up of union between Tanganyika and Zanzibar shall be disqualified and denied registration. again this provision limits the scope for scope discussion and will of the people towards union.
The system of permanent national voters registration under the national election Act where without being registered the constitutional right to vote and being voted is vanished. in 2010,some irregularities in the system contributed good number of citizen not to vote due to typographic errors, double entry, false inclusion of alive in the list of deceased. Mere technicalities defeated the rights of citizens.
Denial of independent candidate; one should not be compelled to join a political party in order to enjoy political right. the right to participate in governance of state includes right to vote and be voted. Also the practices shows that the ruling party during election used the government resources in the campaign.forinstance using of government vehicles and converting the government plans to political promises. this act are against free and fair election which is fundamental aspect of democracy.
The role of police force; basically the police force does not guarantee the right to freedom of assembly but merely regulates the enjoyment of the right. on the ground of national security or public safety the police have the power to prohibit the assembly , however ,Lugakingira J,viewed that the law does not operate to take away the right to hold assembly or procession ‘it only empowers the police and magistrate to step in far the preservation of peace and order. but the police used such discretion power contrary even where is not necessary and sometimes used in favour of ruling party. To underscore this, refer the case of Mabere N yaucho Marando&another Vs Attorney General where it was held that ‘’in order to maintain public order and security during political rallies ,it was important for permit to be issued. however that discretionary power to issue permit had to be exercised judicially which required that all political parties get same and equal treatment…
Therefore, the above means seems to be not trustworthy ,hence bars the growth of democracy which is the spirit of our constitution, and participation of people in a matter and due political process fear to face the iron bar of law enforcers. Hence this will defeat the interest of change and justice in community.
ACCESS TO JUSTICE; this emanates from the cardinal principle of law that every person is equal before the law. Regardless of political stands ,religious affiliation, all should be treated alike without affording unnecessary privileges and exemption. Right to access justice is fundamental principle of rule of law. As in the case of Mwl.Paul john mhozya Vs Attorney General held that everyone and every institution or organization in this country is enjoined to pay respect to the principle of supremacy of the law.
Access to justice should be devoid of undue technicalities which defeats the end of justice, the procedure of taking government to court is very cumbersome .this is supported by the case of Peter Ng’omango Vs Gerson Mwangwa and Attorney General held that the right of an individual to have free access to the court is well recognized by constitution. the requirement of the consent of the minister before one can sue the government as imposed in section 6 of government proceeding Act infringes constitution “therefore this law is arbitrary and oppressive since it does not subjected to any control, therefore offends proportionality test.
Also access to justice goes further to the speedy in dispensation of justice. As in the case of Hussanaira Kharton Vs Home Secretary State of Bihar held that delay in trial by itself constitutes denial of justice.
In some circumstances citizens are denied the right o be heard ,while one has to be heard so as to access justice, failure to heard a party constitutes the violation of natural justice which is the spirit of the law. As in the case of Judge in charge of Arusha &Attorney General Vs Munuo that ‘’no one should be condemned unheard’’.
On the other hand, independence of judiciary and impartiality of it determine highly the proper access and attainment of justice. But number of means such as judicial appointment, poor remuneration, and judicial infrastructures denies a number of people not to meet justice. also some enactments such as civil procedure code on the issue of security for cost and election Act on requisite for money so as to launch an appeal of election., denies the access of justice .refer Francis ndyanabo Julius ishengoma Vs Attorney general.
Therefore, justice should not be commercialized ,but should be done though heaven falls. Through easy entry to judicial system, availability of legal representation, equality before the law, our means will be trustworthy and end will be just.
HIGHER ADMINISTRATIVE AUTHORITIES; These include president, ministers ,civil service, higher institutions, and boards, these bodies ought to comply with the principle of natural justice in the course of discharging their duties. the principle are to give reason(s) for any decision made, to hear both sides. And should not be dominated with the personal interest but public interest.
The failure of decision maker to take into account a relevant consideration in making administrative decision is one of the instance of abuse of power and discretion, this would entitle a party with sufficient stand to seek for judicial review of ultravires administrative actions. Now, proper procedures must be followed and decision maker not be biased.
In supporting the above arguments ,the following cases are material. in the case of Mohamed Jawad Mrouch Vs Minister for home affair held that discretionary power must be exercised fairly, and this requires adherence of the rules of natural justice .Also the case of Said juma muslim shekimweri Vs Attorney General held that I this country,civil servant are dismissed for misconduct only and not pleasure of president. and when civil servant dismissed cause must be assigned.
Therefore, in the light of the case of James Gwagilo Vs Attorney General where Mwalusanya J(as he then was)held that ‘’there is no doubt that the absence of reasons would render the constitutional right of appeal and judicial review ineffective and illusionary” I have come in the view that the administrative authority must comply with legality and proportionality test.
ORDINARY JURISDICTION; The matter of jurisdiction is not a mere technicality but fundamental. And independence of judiciary is the spirit of the jurisdiction of the court.by the virtue of Article 107 of constitution, the court is conferred jurisdiction to provide justice.
Independence of judiciary rely on the basis of condition of service and tenure, manner of appointment of judges and discharge of their duties, and degree of stability and logistical protection against outside pressure and harassment .but judges are appointees of President from another pillar, remunerations comes from executive, this is ridiculous.
Also application of law must be of retroactively, and each case must be adjudicated objectively and on merit and not self interest of judges, and impartiality is paramount important. Refer the case of James Bita Vs Iddi kambi held that the judiciary is an instrument of state set up to adjudicate impartiality disputes between subjects and subjects or subjects and government. Judicial officer at any level should not flinch from performing this sacred duty.
Therefore ,the court should not be subjected to the means which are not trustworthy and unreliable so as to enable this temple of justice to be free and dispense justice and justice only without fear.
WRIT JURISDICTION;This includes writ of mandamus,prohibition,certiorari,and habeas corpus., as stipulated under the law reform (fatal accident and miscellaneous provision)Act .The citizen may be aggrieved with the actions and decisions of administrative authorities and request upon the high court to make review and issue an order which is prayed.
However, the court writ jurisdiction is oustered by other laws and cause the court to remain dumb in case of the abuse of of power by public authorities. Article 41(7) enshrines that there shall be no challenge from any person and no any court shall have the power to investigate or entertain the issue of legality of president who announced by National electoral commission.
The court of law is jealous of its jurisdiction ,as held in Mtenga Vs UDSM that it is trite to observe that the court is and has to be for the protection of public ,jealous of its jurisdiction and will not lightly finds its jurisdiction oustered.
Also presence of undue technicalities such as one can not ask for the judicial review unless he/she has obtained leave. This mean leave could defeat the interest of justice; frankly this is not proper approach to justice. in the case of Timothy Mwakilasa Vs Principal secretary held that it is an admitted fact that applicant has not obtained any leave from this court to make his application. That being so, the purported application is incompetent in law and this court ca not entertain it.
Court of law is guardian of citizen rights and it is a temple of justice in which everyone is free to access and attain justice. The means to reach it should not be complex but smooth and trustworthy so as to arrive at the peak of justice.
PUBLIC OPINION AND MASS MEDIA; This two aspects are underscored under the article 18 , and constitutes a primary element of democratic society .It cannot be conceivable without free debate and freedom of media.
However the freedom of collecting and publishing newspapers,magazines,books,bulletins are hampered by the government through the laws which are not trustworthy.Minister ,in his opinion on the ground of public interest may decide to bann any newspaper in the land .Forinstance banning of Mwanahalisi newspaper.this law ousters the jurisdiction of the court ,in which the court is jealous on it.
Also according to Africa media barometer report, Tanzania communication regulatory authority(TCRA) is not entirely independent since both board chairman and director general are presidential appointees. This situation can compromise impartiality of media.
Harassment and killings of the journalists;wherejournalist tend to shock the higher authority by publishing some news ,entered in hostility with the power.On February 2010,journalist Asraj mvungi and others were arrested by police officer following the order from district officials that they instigate land conflict. in connection to that ,killing of one Daud Mwangosi (journalist)draws a road towards the killing of freedom of media. And another challenge is that media is owned by politicians, tycoons and religious institution, hence editorial freedom demises.
Therefore ,the laws that regulates enhancement and betterment of the media is subjected to the absolute discretion of government authorities. This is ridiculous and peril towards transparency and accountability of the government of the day.Hence,with this path the end shall not be just.
As I arrive to the conclusion ,I am of the view that trustworthy means and procedures are cornerstone towards a good end, and always an end justifies the means.therefore,it is high time for us to look back on our laws making bodies and interest of justice for the purpose of modifying them.it is my humble opinion that citizen and government has to respect and adhere constitutionalism and democracy.