MZUMBE UNIVERSITY

MBEYA CAMPUS COLLEGE

DEPARTIMENT OF LEGAL STUDIES

SUBJECT : ADMINISTRATIVE LAW

SUBJECT CODE : LAW 226
COURSE : LL.B 1I
TASK : GROUP ASSIGNMENT NO. 8
NAME OF LECTURER : DR. LUAMBANO

S/No. NAMES OF STUDENTS REGISTRATION NUMBERS

1 CESILIA P. JUMA 2631184/T.22
2 BEATRICE P. HOKE 2631264/T.22
3 MUSSA N. ASANGWILE 2631262/T.22
4 ESTER SAHALA 2631042/T21
5 TATU H. MASHAKA 2631095/T.22
6 MARIAM M. ABUSHIRI 2631097/T.22
7 KLENSESIA CLARES MTUNGA 2631162/T.22
8 JACOB WILLIAM OCHIENG 2631224/T.22
9 DENIS MAJURA KAJI 2631179/T.22
10 RODRICK H. NZUNDA 2631245/T.22
11 IRENE G. SWAI 2631134/T.22
12 FELCIANA COSMAS MUSHI 2631100/T.22
13 ACRAM MUSTAPHA 2631132/T.22
14 JACKSON S. NASHON 2631299/T.21
15 RACHEL J. NELSON 2631194/T.21
16 BARAKA LUTONJA 2631037/T.22

QUESTION
The current legal framework which empowers Regional and district commissioners powers to
form part of disciplinary bodies against the magistrate is one of the disgraceful and humiliating
factors to the doctrine of independence of judicially. Do you agree? State why.
 WORK OUTLINE

1.0 INTRODUTION

 Meaning of the independent of judiciary

 Aspect or dimension of independent of judiciary
 Separation of power

2.0 MAINBOIDY

 Regional commissioner and District commissioners is political leader hence cannot be a

chair of the committee.
 Regional commissioner is not falling in the organ of judiciary rather it is administrative
body.
 The system of recruiting Regional commissioner and District commissioners are not open
unlike to magistrate
 The committee member are not legal expert

3.0 CONCLUSION

Overview of the work

4.0 REFERENCE AND BIBLIOGRAPHY

Legal authorities
INTRODUCTION
The concept of independent of judicially simply demands judge and magistrate to be let free to
decide the matters brought to them in accordance the assessment of the fact and the law without
any improper influence, inducement or pressures, direct or indirect from any person. That is, judges
and magistrate should administer justice without fear or favor; they should be independent of
executive or parliamentary influencers. In as far as administrative law is concerned, the concept
of independent of judicial extent even to administrative officials sitting as judges and the
administrative tribunals say, disciplinary committee under the public servant under the public
service act and other similar tribunals.1There is a tendency of thinking that independent of the
judicially means just a independence from the legislature and executive .in legality it means more
than that. It also means independence from political influence whether exerted by the political
organ of the state, or by political parties or the general public or brought in by the judges themselves
through their involvement in politics. This may take two forms namely deciding in favour of
dominant sections in the society such as the ruling part and or of membership of judicial personnel to
political parties.In modern times, the term Independence of the Judiciary incorporates freedom from
all kind of pressures no matter where they come from, whether political or administrative. The
doctrine embodies impartiality of adjudication, fairness of trial and integrity of the adjudicator.
Independence of the Judiciary once guaranteed in a country helps to indicate the recognition and
practice of justice for a great extent. Once the Judiciary is Independent Judges and Magistrates are
placed in a better and safe position to administer justice without fear or favor, again the citizens gain
confidence with their government in the sense that it is the rule of law that is in place and not the
rule by interests of the few people in power

Aspect of independent of judicially. The doctrine of independent of judicial require to be

separation of judicial power and personnel from the executive and the legislature. That is there
should be separate judicial officers from, say the executive so that the former should not be
confined to protect the interests of the letter when exercising their judicial function. Personal
emoluments to avoid the executives control over judicial officers through threats of reduction of
salaries payable to judges, express provision have been made directing salaries of judge and other
benefits charged on consolidated fund2. In the Constitution of the United Republic of Tanzania
article 130, and article 107B, provides that in exercising the powers of dispensing justice, all courts

1
Takwanic.k (2001) lectures on administrative law 4 edition , Eastern Book Company,
2
Wade HWR & W (2004) Administrative law 9 edition oxford university press London
shall have freedom and shall be required only to observe the provisions of the constitution and those
of the laws of the land. This article grants independence to the judiciary as a body or organ of the
state in the discharge of its duties. The independence of the judiciary in Tanzania is subject to
provisions of the constitution and other laws, and then this is no independence. The Constitution
itself contains many ouster provisions which bars the judiciary from exercising some matters which
duly falls within their ambit of control. For instance Article 74 (12) of the Constitution of the United
Republic of Tanzania provides that no court shall have power to inquire anything done by the
Electoral Commission in the discharge of its functions in accordance with the provision of this
Constitution, also article 41(7) provides that no court of law shall have any jurisdiction to inquire
into the election of the candidate declared by the Electoral Commission to have been duly elected.
To that extent then it cannot be advocated that there is fully independence of the judiciary if such
independence is subject to non-important limitations.

Separation of power
Separation of power simply means that the executive , legislative and judiciary as organ of the
state must be separated each organ should perform a separate function distinct from the other,
and none should interfere with the function of any of the other. In interpreting the doctrine of
separation of power there are three factors to consider including that the same person should not
form part of more than one of the three organs of the state , also one organ should not control the
exercise of the function by another forexampleminister should not be responsible to the parliament.
That one organ of the state should not exercise the function of another. For example minister
should not have legislative power to make laws.

MAIN BODY
The current legal framework with regard to disciplinary bodies against magistrates empowers the
Regional and District Commissioners powers to form part of the disciplinary bodies. Formerly this
power was enshrined under the Judicial Services Act, particular section 38 and 39 but currently the
same provisions are entrusted in the Judicial Administration Act , which repeals the Judicial Services
Act (supra), under section 50 and 51 of the Act. Under these sections, the Regional and District
Commissioners are given mandate to chair the bodies and they have been vested with powers of
appointing other members to form such bodies. For example under section 50 of the Act, which
reads the same with section 51 of the Act, the Regional and District Commissioners, respectively,
have been given powers to appoint two members who are of proven integrity and knowledgeable.
We agree with the statement that the current legal framework which empowers Regional
andDistrict Commissioners powers to form part of disciplinary bodies against magistrate. Is one of
the disgraceful and humiliating factors to the doctrine of the judicially. By basing on the following
explanation and position of the laws.

Regional commissioner and District commissioners is political leader hence cannot be a chair
of the committee Under the constitution of the united republic of Tanzania the president is given
power to appoint the regional commissioner and regional commissioner by virtual of article 61 of the
constitution according to this provision it show that regional commissioner is a political leader and
not part of judiciary rather is political.Through this It infringed the doctrine of independent of
judicially as well as separation of power.Some members of the judicially do react differently
confronted with unpleasant situation of interference with their work. Some stand firm and no
defend the right of the court to decide according to the law, and other fail to stand the pressure as
it is reflected in the case of James Bita vs. IddKambi3 in this case the regioner commissioner
who was also the district party secretary in Musoma wrote a letter to the magistrate informing him
that the land dispute pending in court was a political issue and therefore the party was to be
consulted .he further instructed the magistrate to shift the file to the village council deliberations,
he wrote a routine judgment abiding by the decision of the village council

Regional commissioner is not falling in the organ of judiciary rather it is administrative body.
In practice the regional commissioner is fall under the doctrine of executive and not the judiciary
the provision of Article 61 which provided that the regional commissioner in mainland Tanzania
shall be appointed by the president. NormallyUnder the principle of separation power as well as the
doctrine of independent of judicially which require that each organ of the state must be independent
and each organ must perform their function without interference of other organ as well as their
personal must be independent. So when the regional commissioner and district commissioner
exercising the powers to form part of disciplinary bodies against the magistrate is one of the
disgraceful and humiliating factors to the doctrine of independence of judicially. May lead to
brings pressure and conflict of power or authority. The action of regional commissioner in some
aspect in legal order can bring pressure and conflict of power. If the region commissioner act in
personal view if she or he cannot cite any legal provision to his action .this resulted to the
magistrate to make decision unconstitutional and cancel actions which relating to the law for

3
(1979) LRT NO 9
example in the case of Hamis Masisi and Another vs Republic4 where the magistrate cancel his
order for bail to some applicant due to pressure influenced by a regional commissioner who act
under personal view without follow constitutional l requirement and the provision of section 127 of
the criminal procedure Act where it provide for only court has power in relation to issuing the bail,
also he has no power even under section 7 of the Regional and Area commissioner Act
( amendment) Act of 963 CAP 461. For unlawful detention. It leads to fail to dispense justice. .
Normally the key function of the judicially therefore it is to interpret the law and apply it to concrete
situations. If the case brought to the court must be decided on the basis of the fact the evidence
presented before the court and the relevant law. The decision should not rest on any pressure or any
matters which is extraneous what is under determination by the court. The relevant example of
this was observed in the case of James Bita vs. Iddi Kambi It offer good example on how a
court of law fail to dispense justice of the disputing parties when it opt to base of decision not on
the evidence before it but in extraneous matters guite irrelevant to the dispute

The same was observed in the case of Republic v. Iddi Mtegule5. In this case the tug-of-war was
between a Primary Court Magistrate and the Area Commissioner (who was also the District Party
Secretary) of Mpwapwa in Dodoma. The magistrate in the course of his work released an accused
person who had been charged with selling buns in disobedience of an order by the Area
Commissioner banning the sale and or consumption of edibles in a bid to prevent the spread of
cholera in the district. Buns were not among the prohibited items in the order by the Area
Commissioner. The Area Commissioner was furious and wrote a strong letter to the magistrate
emotionally accusing him of bias and deliberate attempts to thwart efforts of the authorities to stamp
out cholera. He went further than that. He asked the magistrate to explain why he had acquitted the
accused and threatened to take stern action against him. The magistrate did not cower down. He
retorted immediately and informed the Area Commissioner that what he was doing was to interfere
with the independence of the judiciary. He informed him further that not every accused person is
supposed to be convicted as in Tanzania an accused person is presumed innocent until the contrary is
proved. This bold position of the magistrate in defence of the judicial independence was highly
commended by the then Judge In-charge of the Central Zone Hon. Mr. Justice Chipeta (now retired)
in the process of the review of the case.

4
(1985) TLR 24
5
(1979)
The system of recruiting Regional commissioner and District commissioners are not open
unlike to magistrate.Normally the constitution itself sets the qualification for a person to be
appointed a magistrate but the system for appointment of regional and district commissioner is not
known and we doubt if there is any law providing for who qualifies to be appointed as a regional
or district commissioner. Rather the constitution provide and give power to the president to appoint
the regional commissioner and District commissioner for the purpose of the provision of Article 61
of the constitution of the united republic of Tanzania 6 but the law is silence on qualification for a
person to be appointed as a regional commissioner and district commissioner.

The committee member are not legal expert the fact the Regional commissioner to form part of
disciplinary bodies against the magistrate is one of the disgraceful and humiliating factors to the
doctrine of independence of judiciary due to the fact the chair of the committee is the regional
commissioner in fact the Regional commissioner is not legal expert and is not form part of the
judicial personnel.Through this lead to Some members of the judicially do react differently
confronted with unpleasant situation of interference with their work. Some stand firm and no
defend the right of the court to decide according to the law, and other fail to stand the pressure.

CONCLUSION
Generally the above explanation show on how the power of Regional commissioner and district
commissioner powerto form part of disciplinary bodies against the magistrate is one of the
disgraceful and humiliating factors to the doctrine of independence. But also on the other hand the
power of regional commissioner and district commissioner to form part of disciplinary bodies
against the magistrate is not disgraceful and humiliating factors to the doctrine of independent of
judiciary due to the fact that what is done is in accordance with the law as per section 50 and 51 of
the judicial administration Act alsoHaving Regional and District Commissioners in disciplinary
bodies against magistrates is not against Independence of the judiciary per se. Independence of the
judiciary dwells in the duties and functioning of the judiciary while disciplinary bodies deals with
assessment and investigation on judicial personnel, magistrates in particular, who are complained of
conducting in a disorderly manner. Need for Checks and Balance To quote Jain M. P and S.N Jain 7
power corrupts and absolute power corrupts absolutely, state’s powers need to be limited and one
way of limiting such powers is by having checks and balance. One organ should be able to check the
performance of the other organ. Organs of the state should not operate in a sanctity way that will not
6
Constitution of the united republic of Tanzania of 1977 as amended from time to time
7
Jain M. P & Jain S. N, (2005). Principles of Administrative Law, p. 7
allow any questions on their discharge of duties. Therefore, judicial personnel should not only and
on their own form the Regional and District Judicial Officers Ethics Committees but they should
include other members from organs other than the judiciary itself. This is to avoid the degree of
fabrication of investigation by members if they are from the same domain

BIBLIOGRAPHY AND REFERENCE

CONSTITUTION

The Constitution of the United Republic of Tanzania, [CAP 2 1977] as amended from time to time

STATUTES

Judicial Administration Act, No. 4, 2011

Judicial Services Act, No. 2, 2005

BOOKS

Peter, C.M. &Kijo-Bisimba, H. (Eds). (2007). Law and Justice in Tanzania; quarter of a century of
the Court of Appeal. Dar es salaam; MkukinaNyota Publishers

Jain M. P & Jain S. N, (2005). Principles of Administrative Law, 4 th ed. New Delhi: Wadhwa and
Company Publishers

Issa. G. Shivji, et al (2016); constitutional and legal system of Tanzania, printed by Mkukinanyota
publishers Ltd.

Peter. L &W .Terry (2003); Administrative law, 4th Edition, publisher oxford university.

Jain M. P & Jain S. N, (2005). Principles of Administrative Law, p.

Takwanic.k (2001) lectures on administrative law 4 edition , Eastern Book Company,

CASES

Hamis Masisi vs. Republic (1985) TLR 24

James Bita vs. Iddi Kambi(1979) LRT NO 9

Republic v. Iddi Mtegule (1983) TZHC 10