The doctrine of separation of power in Tanzania PDF

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The doctrine of separation of power that provided under Constitution of United Republic of Tanzania Separation of power is a doctrine of constitutional law under which the three branches of government [executive, legislative, and judicial] are kept separate. This is also known as the system of check and balance because each branch is given certain powers so as to check and balance the other branches. Each branch has separate powers, and generally each branch is not allowed to exercise the powers of the other branches. The legislature branch exercise congressional power, the Executive power, and the Judicial Branch exercises judicial review.1 It shows that inorder to have Rule of law you must have separation of power, for example in the case of Mwalimu Paul Muhozya v.A.G.2 The issue was separation of powers and the court held that the balance of power between the three branches of government namely the legislature, executive and judicial and the relation of the court to the other branches must be carefully maintained, one branch of the Government should not support powers of another branch.

The Doctrine of Separation of powers includes the following distinct but overlapping aspects; ▪Institutional separation of powers: (a tripartite separation of powers ) the need to have three major institutions or organs in a state i.e. Legislature, Executive and Judiciary. ▪Functional separation of powers: state power/ functions must be vested and exercised by three separate institutions or organs i.e. law making, enforcement and interpretation. ▪ Separation of personnel: (each organ with own personnel) no person should be a member of more than one organ. ▪Limitation of appointing powers: state organs should not appoint or elect members for each other.3 Types of separation of power ▪Judiciary; This is the body of the state which has the duty to interpret the law, this is done through the courts of law and it includes personnel such as Lawyers, Advocated, Judges and Magistrate.4 The Judiciary in Tanzania consists of three organs: the Court of Appeal of the United Republic of Tanzania, the High Court for mainland Tanzania and Zanzibar, the Judicial 1 www.law.cornell.edu 2 TLR 130, 1996 3Edward T.M, Basic Constitutional Principles in Tanzania. Mzumbe University, Page no 13

Commission for Tanzania Mainland, Magistrates Courts and Primary Courts.5 The constitutional authority vested in courts and judges to hear and decide. The judiciary shall be the authority with final decision in dispension of justice in the United Republic Tanzania this shown in article 107A (1), (2)a,b,c. Under the doctrine of separation of powers, the judiciary generally does not make law (that is in a plenary fashion, which is responsibility of the legislature) or enforce law (which is the responsibility of executive),but rather interpret the law and applies it to the fact of the case. This is the branch of the state is often tasked with ensuring equal justice under law. Budget of the judiciary in manytransitional and developing country is almost completely controlled by the executive the latter undermine the separation of power as it creates a critical financial dependency of the judiciary. The constitution declared the right of individuals to have their cases heard by the court of law or other tribunals established by law. It also declares the court to be independent and give them power to dispense justice without discrimination. The constitution establishes court of appeal of Tanzania and the high court of Tanzania which both constituent part of the judiciary of Tanzania. Other court in the context of the judicial include resident magistrate court, district court and primary court all established by magistrate court act. the high court have three division apart from main registry these are commercial court, labour court division and land court division.6 There are however several other quasi judicial bodies that have power to determine various claims submitted to them by parties these include district land and housing tribunal and award tribunals. Court resolves disputes by applying the law to the facts of the case independently and impartially. The observance of rule of law and respect for individual human rights are said to be among the important component of good governance and market economy. The judiciary is known to be custodian of most, if not all the ideal that goes with the rule with the rule of law and human right law and the judiciary, therefore, are expected to be among the essential pillars in the era of political pluralism as the two are central in the regulatory process for purposes of fair play.7 ▪Executive; is the part of government that has the sole authorities and responsibility for the daily administration of the state.8 The executive branch executes the law. The division of power into separate branches of government is central to the idea of separation of power.9 The executive 4 Thuwaiba H.H, The dimensions of the separation of power towards promotion of good governance in Tanzania, Mzumbe University, 1999 . Page 8 5 Shivji I.G, Constitutional and legal system of Tanzania 6 Chipeta B.D, Administative law in Tanzania 2009, Mkuki and Nyuki publisher, Dar es salaa, page 12 7 World bank 1989 8 Ibid, Thuwaiba H.H, The dimensions of the separation of power towards promotion of good governance in Tanzania, Mzumbe University, 1999 . Page 9 9 Reference.com

is government or ruling machinery of the state; it includes president, cabinet ministers, prime ministers, Vice President, police and other civil servants. The Executive of the United Republic of Tanzania comprises of the President who is the leader of the Executive; the Vice President who is the principal assistant of the President in respect to all matters in the United Republic; President of Zanzibar; the Prime Minister and the Cabinet Ministers. Article 33 of the constitution set out the structure and the functions of executive branch .the constitution actually grants the president very few specific powers.10 ▪Legislature; This is organ of the state vested with power to make laws of the land. In the United Republic of Tanzania the parliament is the legislature.11 In article 98(1)a,b say parliament may enact law for altering any provision of this Constitution in accordance.12 Article 62(1) provides for the provision of the parliament, “there shall be a parliament of the United Republic which shall consist of two parts i.e. the president and the National Assembly.13 In the British Constitution the Parliament is the Supreme legislative authority. At the sametime, it has full control over the Executive. The harmony between the Legislator and the (Executive) is secured through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the head of the party in majority and is the Chief Executive authority. He forms the Cabinet. The Legislature and the Executive are not quite separate and independent in England, so far as the Judiciary is concerned its independence has been secured by the Act for Settlement of 1701 which provides that the judges hold their office during good behaviour, and are liable to be removed on a presentation of addresses by both the Houses of Parliament. legislative power in Tanzania Zanzibar over all matters which are not union matters is hereby vested in the House of Representatives. Where any law enacted by the House of Representatives concerns any matters in Tanzania Zanzibar which is within the legislative jurisdiction of parliament, that law shall be null and void, and likewise if any law enacted by parliament concerns any matter which is within the legislative jurisdiction of the house of the representative that law shall be null and void.14 The Constitution of the United Republic of Tanzania 1977 represents a contemporary approach in constitutionalising the doctrine of separation of powers. Essentially, there is no strict 10 Article 33 of Constitution of United Republic of Tanzania of 1977 11 Ibid, Thuwaiba H.H, The dimensions of the separation of power towards promotion of good governance in Tanzania, Mzumbe University, Page 9 12 Article 98(1)a,b of Constitution of United Republic ofTanzania of 1977 13 Article 62(1) of Constitution of United Republic of Tanzania of 1977 14 Article 64(3) of Constitution of United Republic of Tanzania of 1977

separation of powers under the Constitution of Tanzania, In the Constitution of Tanzania, the doctrine of separation of power is enshrined under Article 4 sub 1 and sub 2 which, inter alia.15 provides that all state authority in the United Republic shall be exercised and controlled by two organs vested with executive powers, two organs vested with judicial powers and two organs vested with legislative and supervisory powers over the conduct of public affairs and The organs vested with executive powers shall be the Government of the United Republic and the Revolutionary Government Zanzibar Revolutionary Government of Zanzibar; and the organs vested with legislative and supervisory powers over public affairs shall be the Parliament of the United Republic and the House of Representative.16 All in the Court of Appeal of Tanzania has also asserted affirmatively the doctrine of separation of powers in its various judgements. For instance, in DPP v. Daudi Pete [1993] TLR 22 (CA), a case which was concerned with restrictions imposed by Section 148(5) (e) of the Criminal Procedure Act, 1985 (on bail),17 Nyalali CJ refuted arguments made by Mwalusanya J (HighCourt), thus laid down circumstances under which the doctrine of separation of powers can be said to have been violated as following; 18 “In my view, the Doctrine of Separation of Powers can be said to be infringed when either the Executive or the Legislature takes over the function of the Judicature involving the interpretation of the laws and the adjudication of rights and duties in disputes either between individual persons or between the state and individual persons.” Another is,Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 (CA), Nyalali CJ (as he then was) reiterated his position in Daudi Pete’s case and noted as follows (in relation to the encroachment of the Judiciary’s power by the Executive); 19 “It is the basic structure of a democratic constitution that state power is divided and distributed between three state pillars. These are the Executive, vested with executive power; the Legislature vested with legislative power, and the Judicature vested with judicial powers. This is clearly so stated under Article 4 of the Constitution. This basic structure is essential to any democratic constitution and cannot be changed or abridged while retaining the democratic nature of the constitution. It follows therefore that wherever the constitution establishes or permits the establishment of any other institution or body with executive or legislative or judicial power, such institution or body is meant to function not in lieu of or in derogation of these three central pillars of the state, but only in aid of and subordinate to those pillars. It follows therefore that since our Constitution is democratic; any purported ouster of jurisdiction of the ordinary courts to deal with any justiciable dispute is unconstitutional.” Further more, is Mwalimu Paul John Mhozya v. Attorney General (No. 1) 1996 TLR 130 (HC), the issue was whether the President may be removed or suspended from office by the

15 Article 4(1),(1) of Constitution of United Republic of Tanzania of 1977 16 Maliga A, Application of separation of power in the United Republic Tanzania 2015, Page 1,2 17 Section 148(5)e of Criminal Procedure Act of 1985 18 TLR of 1993 19 TRL of 1995, Page 92

Court. Samatta JK (as he then was) in relation to the doctrine of separation of powers held that;20 “The principle that the functions of one branch of government should not encroach on the functions of another branch is a very important principle, one of the principles which ensure that the task of governing a State is executed smoothly and peacefully. It seems to me to be an incontrovertible proposition of law, having regard to the use of the words `in accordance with the provisions of this constitution' in s 42(3)(d) of the Constitution, that removal or suspension from office of the President of the United Republic is the legislature's exclusive prerogative. Since s 46A of Constitution lays down the procedure to be used in removing or suspending the President, the attempt to remove or suspend him by a procedure other than that would not be legal.” Recently, the Court of Appeal (under Ramadhani, CJ) in A.G. v. Rev. Christopher Mtikila [Civil Appeal No. 45 of 2009] reaffirmed the doctrine (though not so expressly) by restricting the role of the Court to that of adjudicating (and not legislating). The Court argued that;21 “…..the issue of independent candidates has to be settled by Parliament which has the jurisdiction to amend the Constitution and not the Courts which, as we have found, do not have that jurisdiction.”

The prince of Rule of law Is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.22

Professor Albert Dicey in his treatise, identified three principles of constitution which when combined together they form the rule of law: The absolute supremacy of predominance of regular law as opposed to the influence of arbitrary power; Equality before the law of all classes of people to the ordinary law of the land administered by ordinary courts; and The law of the constitution is the results of rights of individuals as defined and enforced by the courts. A clearer understanding of the rule of law can be seen when Government (the executive) cannot exercise power which is not authorized by the law, effectively constraining government power.23 20 TRL of 1996, Page 137-8 21 TLR of 2009 22 Ibid, Tsar M.M, Basic Constitutional Principles in Tanzania. Mzumbe University, Page no 6 23 .Dicey, 1885, Introduction to the Study of the Law of the Constitution, London Macmillan and Co. (1885)

These principles in Tanzania jurisdiction are duly and basically entrenched in and form the provision of Article 13(6). It is the principles of Fundamental rights that simply translate into the rights of all citizens to be governed under the same known laws and the right to seek redress using the same known and acknowledged processes, eschewing any form of arbitrariness and unfairness.24 This provision inter alia provides for presumption of innocence to all people, Nobody should be punished for an act which was committed when it was not a crime/offence (retrospective effect), also it guarantees fair hearing of the cases (there must be equality even if one party is the government), also the laws must be imposed to the public so that all people should know the law. In Tanzania the development of the Rule of Law can be grouped in to two major phase, before 1984 and after 19848, whereas before 1984 the Constitution of united republic of Tanzania of 1977 had no Bill of Rights, and for that rule of law in Tanzania during the time was impotent.25 That before 1984 the bill of rights in Tanzania was found only in the preamble of the Constitution of Tanzania of 1965 up to 1977 and in a legal sense preamble does not form part of the constitution and in other, preamble is not enforceable and this is shown in the case of HALIMALI ADAMJI V E.A POSTS AND TELECOMMUNICATIONS LTD,26 in this case a Tanzanian Asian by origin was compulsory retired in order to facilitate Africanization in government sector. The claimant argued that the policy of Africanization was discriminatory in on ratio basis hence it was not against the rule of law, basing on that argument the Asian petitioned on the court of law and the court held that the preamble of the Constitution is not enforceable and for that the argument failed. After the year 1984, the Bill of Rights which provides for freedom and rights of individuals was firstly introduced in the constitution of the united republic of Tanzania of 1977, through the 15thamendments of the constitution of 1984.27 The amendments inter-alia incorporated the Bill of Rights in the Constitution and hence giving rule of law force of law in the country, although Bill

24 Article 13(6) of Constitution of United Republic of Tanzania of 1977 25 Mugwai A, Forty years of struggles for human rights in Tanzania; how far we have travelled? In Mchome S.E (ed) taking stock of human rights situation in Africa, Page 18 26 TLR 6, 1975 27 ibid

Rights was incorporated in the constitution of in 1984 it came in to force from march 1988 and ever since march 1988 up to now the rule of law is part of the basic laws of the land in Tanzania. There is now party 2 of chapter 1 of the constitution of Tanzania of 1977 which provides Bill of Rights or fundamental rights or individual rights which is rule of law, this part provides for objectives and the directive objective of state policy, the fundamental right, individual rights, and Bill of Rights has been enshrined from article 11 to Article 24 of the Constitution of United Republic of Tanzania.28 The most important provisions related to fundamental rights in the Constitution of United Republic of Tanzania are two, right to life which is the most important right of all individuals rights and freedoms as provided under article 14 of the constitution however this right has been provided with some limitation as provided also under Article 14, and also equality of citizens before the law, that the constitution recognize also equality of all person before the law without any discrimination under Art 12 & 13 (1) of the constitution. There are several cases which exemplify this; in NHC V TANZANIA SHOE COMPANY.29 the case envisages the procedures to enforce the basic fundamental right. According to the case enforcement of basic fundamental right is by way of petition which is filed in the high court which is the first court of instance. In Tanzania the rule of law is enforceable in any case where an individual is curtailed his basic freedom and rights he may petition to the high court. This is provided for under article 30 (3) of the constitution.30

Conclusion It should be remembered that the notion of the doctrine or belief of the doctrine is in the assumptions that the three organs of the government and its functions should be distinguishable from one another; The idea of abandoning the notion of the doctrine it means all functions of the government can be performed by one organ for example executive take all government functions 28 Peter, C.M, Human right inTanzania; selected cases and mateterials 29 TLR 251 of 1995 30 Article 30(3) of Constitution of United Republic of Tanzania

like enacting the law, interpreting the law, provides peoples welfare, determines the rights of the people. There is a need of the doctrine of separation of powers; the following are the importance of having the notion. ▪ The doctrine avoids the abuse of powers. This means that when a single person or a group of people have the extreme amount of power they can become dangerous to the citizens, so the doctrine of separation of power is a method of controlling the powers of the organs of the government, because it become more difficult to abuse the power. ▪ Even though the parliament has the power to enact the laws, the judiciary has the power to declare whether the law is constitutional or unconstitutional through check and balance. ▪ The insurance of justice to the people’s .Through separation of power each organ of the government can be independent so that people can get a fair justice through independence of judiciary....