Introduction
In the modern Tanzanian state, Parliament's role as the primary legislative body is often supplemented by delegated legislation. This consists of rules, regulations, by-laws, and orders made by authorised bodies such as government ministers, local government authorities, or other public entities under the power (‘vires’) conferred by a parent Act of Parliament. While delegated legislation is essential for the efficient functioning of government, it carries the risk that these bodies may exceed their given powers. To safeguard the principles of parliamentary supremacy and the rule of law, the judiciary exercises a supervisory jurisdiction to control such legislation.
The primary mechanism for this judicial control is the doctrine of ultra vires, which means ‘beyond the powers’. This essay will focus on one specific aspect of this doctrine: substantive ultra vires. The purpose of this essay is to explain the procedure through which the courts in Tanzania, principally the High Court, control delegated legislation that is alleged to be substantively ultra vires. It will outline the legal basis for such challenges, detail the procedural steps an aggrieved party must follow, and consider the remedies available upon a successful application, using relevant Tanzanian case law and legislation to illustrate the process.
The Doctrine of Substantive Ultra Vires
The doctrine of ultra vires is a cornerstone of administrative law, ensuring that public authorities act within the limits of the power granted to them by law. The doctrine can be divided into two main categories: procedural ultra vires and substantive ultra vires. Procedural ultra vires occurs when the law-making authority fails to follow the mandatory procedures laid down in the parent Act for making the delegated legislation.
By contrast, substantive ultra vires, the focus of this essay, is concerned with the content or substance of the delegated legislation itself. It arises when the subsidiary law goes beyond the scope of the power conferred by the parent Act. The delegated legislation may be substantively ultra vires for several reasons (Peter and Wambali, 2018):
- Inconsistency with the Parent Act: The most common ground is that the delegated rule contradicts or is inconsistent with the provisions of the statute that empowered its creation. A subsidiary law cannot widen, narrow, or alter the purpose of the primary legislation from which it derives its authority.
- Inconsistency with the Constitution: Under Article 63(3)(c) of the Constitution of the United Republic of Tanzania, 1977, no law made by any authority can be valid if it conflicts with the Constitution. Therefore, any delegated legislation that infringes upon the fundamental rights and freedoms enshrined in the Constitution will be ultra vires and void.
- Inconsistency with General Law: Delegated legislation must be consistent with other existing Acts of Parliament. A by-law or regulation cannot override the general law of the land unless the parent Act expressly authorises it to do so.
- Unreasonableness: A piece of delegated legislation may be challenged on the ground that it is so unreasonable that no reasonable authority, acting within its powers, could have enacted it. This principle, derived from English common law, allows the court to intervene where a regulation is manifestly unjust, oppressive, or involves a flagrant abuse of power.
- Imposing a Financial Levy: Public bodies cannot impose a tax, charge, or fee through delegated legislation without clear and express authority from the parent Act. The power to tax is a parliamentary prerogative and cannot be assumed by a subordinate body.
A clear Tanzanian example of substantive ultra vires is found in the case of Sanai Mirumbe and Another v Muhere Chacha [1990] TLR 54. Here, a local council by-law made it an offence for any person to be "found in possession of local liquor" without a permit. The High Court found that the parent statute, the Local Government (District Authorities) Act, 1982, only empowered the council to regulate the "manufacture, selling, and consumption" of local liquor. The Act did not grant power to regulate its mere possession. Consequently, the court declared the by-law substantively ultra vires the parent Act and therefore void. This case demonstrates the court’s role in ensuring that delegated powers are not overstepped.
The Procedure for Challenging Delegated Legislation
An individual or entity wishing to challenge a piece of delegated legislation on the grounds that it is substantively ultra vires must initiate judicial review proceedings in the High Court of Tanzania. The procedure is not a standard civil suit but a specialised process governed by specific legislation and rules.
The legal framework for this procedure is primarily found in the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap 310 R.E. 2002]. Section 17(2) of this Act gives the High Court the power to issue the prerogative orders of mandamus, prohibition, and certiorari. These orders are the principal tools of judicial review. The detailed steps for applying for these orders are set out in the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2011, (GN No. 324 of 2011).
The procedure can be broken down into two main stages: the application for leave and the substantive hearing.
Stage One: Application for Leave
A person cannot directly file a full case for judicial review. They must first obtain permission, or ‘leave’, from the High Court. This initial stage acts as a filter to prevent the courts from being overwhelmed by unmeritorious or frivolous claims.
The application for leave is made ex parte (by one party only) through a chamber summons. This summons must be supported by two key documents:
- A Statement: This document sets out the name and description of the applicant, the relief being sought (e.g., an order of certiorari to quash a regulation), and the grounds for the application (e.g., that the regulation is substantively ultra vires the parent Act).
- An Affidavit: This is a sworn statement that verifies the facts relied upon in the statement. The affidavit must present the evidence upon which the applicant bases their claim.
At the leave stage, the court’s role is not to decide the case on its merits. Instead, the judge must be satisfied that the applicant has an "arguable case" which merits a full hearing. The applicant must also demonstrate that they have locus standi, or a "sufficient interest," in the matter. This means they must show that they are genuinely affected by the delegated legislation being challenged. Historically, Tanzanian courts sometimes took a restrictive view of locus standi, but there is a recognised trend towards a more liberal interpretation, especially in cases concerning public rights or constitutional issues (Chipeta, 2009).
Stage Two: The Substantive Application
If the High Court grants leave, the applicant can then proceed to the second stage: the substantive hearing. The applicant must file the main application for judicial review within fourteen days of leave being granted. This is done by filing a notice of motion.
At this stage, the proceedings become inter partes (between the parties). The public authority responsible for making the challenged regulation (e.g., the Minister or the Local Council) becomes the respondent and is given the opportunity to present its case and defend the legality of its delegated legislation.
Both parties will present arguments and evidence before the judge. The applicant will argue why the regulation is ultra vires, and the respondent will argue why it is valid and within their powers. The court will then undertake a full review of the arguments and make a final determination.
Remedies
If the court finds that the delegated legislation is indeed substantively ultra vires, it has several remedies at its disposal. The most common and effective remedies in this context are:
- Certiorari: This is a court order that quashes or nullifies the offending piece of delegated legislation. It effectively removes the illegal rule from existence. This is the primary remedy sought when challenging the validity of a by-law or regulation that has already been made.
- Declaration: The court may issue a declaration, which is a formal statement of the law. For example, the court can declare that a particular regulation is void for being ultra vires. This clarifies the legal position for all parties and members of the public.
- Injunction: An injunction is a court order that prohibits a public body from acting upon an illegal regulation. It can be used to prevent the enforcement of an ultra vires by-law.
The choice of remedy depends on the specific circumstances of the case. In many instances, an order of certiorari to quash the regulation combined with a declaration of its invalidity provides a complete and effective solution.
Conclusion
The procedure for controlling delegated legislation through the doctrine of substantive ultra vires is a critical component of Tanzania’s system of administrative justice. It provides a structured path for citizens to hold law-making bodies accountable and ensures that power delegated by Parliament is not abused. The two-stage process, beginning with an application for leave at the High Court, allows for the efficient filtering of cases while providing a forum for meritorious claims to be heard in full. Through the use of powerful remedies like certiorari and declaration, the judiciary upholds the rule of law by ensuring that all legislation, whether primary or subsidiary, remains within the confines of the Constitution and the powers conferred by Parliament. This judicial oversight is fundamental to maintaining a balance between governmental efficiency and the protection of individual rights in Tanzania.
References
Chipeta, B. D. (2009) A Sourcebook of Administrative Law cases in Tanzania. Mkuki na Nyota Publishers.
Peter, C. M. and Wambali, M. K. B. (2018) The State of Constitutionalism in Tanzania: A 25-Year Survey. Oxford University Press.
Legislation
Constitution of the United Republic of Tanzania, 1977.
The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap 310 R.E. 2002].
The Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2011, (GN No. 324 of 2011).
Cases
Sanai Mirumbe and Another v Muhere Chacha [1990] TLR 54.
