administrative law

1. MZUMBE UNIVERSITY
FACULTY OF LAW
COURSE : LLB 2
NATURE OF WORK : GROUP ASSIGNMENT
SUBJECT : Administrative law I
SUBJECT CODE : LAW 226
LECTURER : DR; MUSHI
PARTICIPANTS GROUP NO.03 (D)
01: YUSUPH HAMISI KISWAGA : REG 1236009/T.20
02: RICHARD ALLAN CHABO : REG 1236041/T.20
03: BRUNO MATHIAS NJOGOLO : REG 1236010/T.20
04: REHEMA E MWASONYA : REG 1236239/T.20
05. EUJEN SWEETBERT GAHUNGA : REG 1236044/T.20
06: JANETH A. NKENZI : REG 1236241/T.20
07: MARTHA GODFREY MBOYA : REG 1236244/T.20
08: MAGOOGE CHACHA MARO : REG 1236261/T.20
Question;
The dictrine of rulr of lawis nota productof a single factor.It is a combination of multiple factors when
dealt togather they cleary differentiate authoritarian gaovernment from democratic
gaovernment.Critically Discuss.

2. Table of content
1.0 Introduction
1.1 Meaning of Doctrine of the rule of law
1.2. Authoritarian government
1.3. Democratic Government
2.0 Main body
2.1. Superiority of the Law
2.2. Equality before the law and equal protection of the citizens
2.3. Separation of powers Separation of Powers
2.4. Just Laws
2.5. Indepence of judiciary
2.6. The making of particular laws (particular legal orders) should be guided by open,
stable, clear, and general rules.
2.7. Robust and Accessible Enforcement
3.0 Conclusion
References
Scope of work

3. Firstly, the question demand to discuss on how not only single factor but a set of fuctors can
differntiate the authoritarian government from the democratic government while basing on the
Doctrin of rule of law.Generaly work devided into three related parties of which each of them
give the light to the othe one.First party purely based on consept and meaning of the Doctrine of
rule of law,Authoritarian government and Democrtaic government.Second party of the work
entails of main body which embodied of not all but several factors which cleary distiguish
authoritarian government from democratic government on the base of the doctrine of rule of
law.And third party is the Conclusion part of which it summarize the general consepts of the
work.
1.0 INTRODUCTION
1.1 Doctrine of the rule of law
The rule of law principle was propounded by Prof A. V. Dicey according to him the expression
“rule of law” has three connotations. First it means ‘the absolute supremacy or predominance of
regular law as opposed to the influence of arbitrary power, and excludes the existence of
arbitrariness. Secondly it means equality before the law and equal protection before the laws. In
this case Dicey the rule of law also means that ‘every man, whatever is his rank or condition, is
subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals. Thirdly it means that the Constitution is not the source but the consequences of
fundamental rights of individuals, the rights which are also the consequences of judicial
decisions in a particular case.1
With great respect to what Dicey have propounded on what does rule of law means, there are
many criticism which have been advanced towards his ideal, but generally speaking there is no a
definite definition which has been agreed by scholars as a single accepted definition on what is
rule of law; however according to Wade, he observed rule of law as “that everything must be
done according to law.”2 Applied to the power of the government, this requires that every
government authority which does some acts which would otherwise be a wrong (such as taking a
1Mushi,E. G., Administrativelawof Tanzania,Mzumbe: Mzumbe University,2014,p 37
2 Wade

4. man’s land) or which infringes a man’s liberty (by refusing planning permission) must be able to
justify it as authorized by law. That is, what he regarded as a principle of legality. But the rule of
law demands something more, since otherwise it would be satisfied by giving the government
unrestricted discretional powers, so that everything what they did was within the law.
The principles constituting the rule of law identified in this definition are both procedural and
substantive.Rule of law principles are procedural, for example, in that the laws must be the
supreme law of the land, publicly promulgated, equally enforced, and adjudicated by an
independent judiciary. Additional procedural rules require that the laws must be fairly and
equally applied, and that separation of powers must be observed in the enactment and
adjudicative processes.
The principles of the rule of law are also substantive, in that the laws must be just and consistent
with the norms and standards of international human rights law. Also, the rule of law requires the
avoidance of arbitrariness in the law.
The fact that rule of law is not a product of a single factor. Rather it is a combination of multiple
factors when dealt together they clearly distinguish authoritarian government from democratic
government, is true, since there would be no exactly rule of law if the government is said to be
authoritarian one. Thus this being the center of discussion, then before to venture into that
discussion these key terms authoritarian government and democratic government must be well
acquainted to what it means.
1.2 Authoritarian government is the theory and system of government customarily linked with
dictatorship, in contrast to democracy.3 It is a principle based on obedience to authority, and
opposes autonomy of individuals in thought and actions. As a form of government
authoritarianism concentrate power in a leader or in small elite not constitutionally accountable
to the people.4 Leaders in authoritarian system often exercise their power arbitrarily and consider
themselves above existing law. Modern authoritarian system usually operates through single,
dominant parties, which control government and other key parts of the society including the
3Badeski,R. State BuildingIn Modern China:The Kuomintang in the Prewar Period,1981 p 181
4Germani, G. Authoritarianism,Fascismand National Populism,New Brunswick:N.J. Transaction Books,1978 p 292

5. economy, media, and education.5They usually do not hold free elections which would replace
them with a competitive party (political parties) it is either difficulty or impossible for citizens to
create oppositions groups or parties.
1.3 Democratic Government.
Is a form of government in which the sovereign power is neither lodged in one man, as in
monarch, no in the nobles as in an oligarchy but in a collective body of people; government by
the people; state in which such government prevails; the principle that all citizens has equal
political rights.6 Thus one may wish to note that a democratic government is that government
which adheres to the principle of rule of law in the course of administration.
Therefore since rule of law is not a product of a single factor rather a combination of multiple
factors which, when dealt together they distinguish authoritarian government from democratic
government, then below are factors which are regarded as essentials of rule of law which when
adhered to, they will differentiate an authoritarian government from democratic government;
2.0 MAIN BODY
2.1 Superiority of the Law.
The law must be superior. All persons are subject to the law whatever their station in life.This
first principle states the essence of the rule of law dating back to Aristotle: The rule of law is a
“government by laws and not by men.” In Politics, Aristotle wrote that “it is more proper that
law should govern than any one of the citizens.”This commonly phrased opposition is put in
different ways, the rule of law, not man, a government of laws, not men, law is reason, man is
passion, law is objective, and man is subjective. The inspiration underlying this idea is that to
5Hunington, S. P., and C. H. Moore, Authoritarian Politicsin Modern Society: The Dynamics of Established One-
Party System, NY. Basic Books,p 533
6Aiyar’s P. R., The Law Lexicon: The Encyclopedia LawDictionary,2ndEdn,New Delhi: Wadhwa and Company
Nagpur, 2004, p.519

6. live under the rule of law is not to be subject to the unpredictable vagaries of other individuals,
whether monarchs, judges, government officials or fellow citizens. It is to be shielded from the
familiar human weaknesses of bias, passion, prejudice, error, ignorance or whim. This sense of
the rule of law is grounded upon fear and distrust of others.7 Aristotle's words on this still
resonate today:
“And the rule of law, it is argued, is preferable to that of any individual...
Therefore he who bids the law rule may be deemed to bid God and Reason alone
rule, but he who bids man rule adds an element of the beast; for desire is a wild
beast, and passion perverts the minds of rulers, even when they are the best of
men. The law is reason unaffected by desire.”8
Therefore rule of law requires rulers to rule according to the law without abuse to it, rulers
should not be above the law, and the law must be superior to every person.In the case of
CumchuaMarwa v Officer in Charge of Musoma and Another, Mwalusanya J stated that
the rule of law means more than acting in accordance with the law. The rule of law must also
mean fearless of the government. Rule of law does not give the government too much power.
The rule of law is opposed to the rule of arbitrary power. The rule of law requires that the
government should be subject to the law rather than the law subject to the government. If the law
is wide enough to justify a dictatorship then there is no rule of law. Therefore if by the rule of
law all it means is that the government will operate in accordance with the law, then the doctrine
of rule of law becomes a betrayal of the individual if the laws themselves are not fair but are
oppressive and degrading
2.2 Equality before the law and equal protection of the citizens.
The law must be applied equally to all persons in like circumstances.The principle of equality is
a central idea in the rule of law. The Greeks had another word “isonomia” that more fully
expressed the idea of equality of all under the law, whatever their position in society. In a
democracy, the majority might persecute a minority. The principle of equal treatment however,
requires a society to treat all of its citizens equally. As expressed above, this principle recognizes
7Tamanaha,B. Z., The History and Elements of Rule of Law. [2012] SingaporeJournal of Legal Studies, p 244
84 Aristotle,“Politics”,1988 vol.3, Cambridge University Press,at78

7. that the law may treat classes of persons differently, but requires that the different treatment have
a rational basis.Prof. Maina observes that, the rule of law demands that all subjects be treated
equally before the law. This means all classes of people in civil society should be treated alike by
law itself and before all law enforcement bodies and agencies which are created by the law. The
law should neither be made to benefit a particular section of a society nor to the disadvantage of
another. Equality before the law has also been taken to be a rule requiring all functions of the
state which are likely to affect the basic rights of the people to be subjected equally before the
law. The rule of law demands that the State and its organs should act according to and within the
authority conferred by law. In the same vein, they should not give unnecessary privileges and
cushions to the State and its organs. This rule is strict in the sense that, apart from the State being
a subject of law as a judicial person. If the State will accord such privileges it will abandon its
duty to acting within the law and the rights of the individuals will be at stake and without remedy
in cases of excesses.9
Equality before the law and equal protection is also one among the basic rights enshrined in the
Constitution of the United Republic of Tanzania of 1977 and its amendments, article 13(1)
provides that, “all persons are equal before the law and are entitled, without any discrimination,
to protection and equality before the law.” Sub-article 2 provides that, “no law enacted by any
authority in the United Republic shall make any provision that is discriminatory either of itself or
in its effects.” The question in relation to equality before the law in Tanzania is whether such
right imposes on the State any affirmative duty to lift the handicaps flowing from different
economic circumstances of citizens of Tanzania.10
2.3 Separation of powers Separation of Powers.
There must be a separation of powers in the government. The lawmakers should enact the law in
general terms. The lawmakers should not be the body that decides on the application of the law
to specific situations.11 The executive applies the law to specific situations. The judicial branch
rules on disputes regarding the application of the law to specific situations.12This principle
9Peter, C. M., Human Rights in Tanzania:Selected cases and Materials,1997,pp 379 - 380
10Mushi,E. G., p. 41
11Halsbury’s Laws of England, 4thEdn, Vol. 1(1), p. 13
12Foulkes,D., AdministrativeLaw, 8thEdn, London: Butterworths, 1995,p 42

8. ensures that an enacted law will be applied generally to everyone in society and will not be
enacted to criminalize the acts of only selected persons. Laws must be general, prospective, and
must apply to all persons.13The first maxim of a free state is, that the laws be made by one set of
men, and administered by another; in other words, that the legislative and judicial characters be
kept separate. When these offices are united in the same person or assembly, particular laws are
made for particular cases, springing oftentimes from partial motives, and directed to private ends.
What is worth to note is that, the principle of separation of power enable the government to do
away from authoritarian, that is, it avoid concentration of sovereign powers to one organ of the
government and not limiting the powers of a constituent body. In Tanzania also the principle is
entrenched in our Constitution under Article 4, and the same is highly respected by the Judiciary.
A good example on this observation is in the case of Mwalimu Paul John Mhozya v. Attorney
General14 the applicant had filed a civil case in the High Court in which he sought, the and
number of declarations inter alia (i) that the President of the United Republic of Tanzania was
guilty of allowing or enabling the violation of the Constitution to take place and therefore was
personally answerable for the violation, (ii) that President Mwinyi’s continuing exercise of
Presidential power was unconstitutional as well as potential danger to the well-being of the
United Republic and its citizen. After filing the suit, the applicant filed an application in which
he sought an interlocutory injunction restraining his Excellency Ali Hassan Mwinyi, the
President of the United Republic of Tanzania from discharging presidential functions pending
the determination of the main suit. Samatta, J.K., stated as follows;
“The principle that the functions of one branch of government should not
encroach on the functions of another branch is very important principle, one of
this principle which ensure that the task of governing the State is executed
smoothly and peacefully. It seems to me to be incontrovertible the position of law,
having regarded to the use of the words “in accordance with the provision of this
Constitution” that removal or suspension from office of the President of the
United Republic is the legislature’s prerogative. Since article 46A of the
13Raz, J., The Authority of Law: Essays on Law and Morality,published to Oxford Scholarship Online,March 2012 at
P 217
14 [1996] TLR 130

9. 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.”
Therefore the High Court in this case after considering carefully the provision of the
Constitution found that, it had no power to order for suspension or removal of the
President from the office, rather this can only be done by the parliament and hold that the
principle of separation of powers should be respected in a sense that no branch should
encroach in to the function of another.
2.4 Just Laws.
The law must be just and must protect the fundamental human rights of all persons in society.
The principle embodies a substantive rather than a procedural guarantee of the rule of law, and
expresses the idea that the laws in a society that honor the rule of law must be just.15 This
substantive requirement is intended to distinguish a government under the rule of law from a
government operating with a rule by law.16A distinction has been drawn in some recent writings
between a ‘thin’ rule of law and a ‘thick’ rule of law. A thin rule of law describes governance in
a society in which many of the procedural principles of the rule of law are observed, but not the
elements of substantive justice and protection of human rights.17 An example would be a society
that has a system of laws governing all of its citizens and an efficient court system to enforce
those laws, but the system does not include a robust protection of human rights. A thick rule of
law, by contrast, is governance under a rule of law that includes all of the principles of the rule of
law, including those related to substantive justice and enforcement of human rights protections.18
2.4 Independent Judiciary.
Judicial power enforcing those just laws and human rights protections must be exercised
independently of either the executive or legislative bodies, and individual judges must base their
15 Endicott, T., AdministrativeLaw, New York: Oxford University Press,2009,p. 18
16 Ibid p 18
17 Mathew, K. K., Democracy, Equality and Freedom, Lucknow: Eastern Book Co. 1978, p. 32
18 Ibid

10. decisions solely on the laws and the facts of individual cases.19As expressed, this principle
includes the ideas of both “institutional” and “decisional” independence.20 Institutional
independence describes the independence of the judicial branch from the executive and
legislative branches of government.Decisional independence is the requirement that a judge must
decide a particular case only on the basis of the law and the facts presented to the judge in the
case.21 Both institutional and decisional independence are essential to governance under the rule
of law.The rules concerning the independence of the judiciary the method of appointing judges,
their security of tenure, the way of fixing their salaries, and other conditions of service are
designed to guarantee that they will be free from extraneous pressures and independent of all
authority save that of the law. They are, therefore, essential for the preservation of the rule of
law.22In Tanzania the factor for the requirement of rule of law, that judiciary should be
independent is embodied under article 107B of the Constitution of United Republic of
Tanzania of 1977 and its amendments. The same can be seen from various court decisions in
Tanzania, for instance in the case of James Bita v. Idd Kambi23 in this case, appellant sued the
respondent in primary court claiming ownership of a piece of land. The court found for the
appellant. The respondent filed an appeal in the District Court. But before the appeal was heard
the District Magistrate received a letter from Chama cha Mapinduzi (CCM) District Secretary
telling him that the matter was political and so the District magistrate should not decide the
appeal without consulting the party. The District Magistrate succumbed and threw the whole
dispute to the party for investigations. The High Court speaking through Mfalila, J., stated that;
“What cannot be forgiven is the ignorance of the District Magistrate who
abdicated from his functions as a judicial officer and avoided adjudicating a
dispute between two subjects by throwing it to the Party. The judiciary is an
instrument of the State set up to adjudicate impartially dispute between subject
and subject or subject and government. Judicial officers at any level should never
flinch from performing this sacred duty.”
19Tamanaha,supra n. 7 p 244
20 Ibid
21 Ibid
22Raz, supra n. 13 p 218
23 [1979] LRT 09

11. Therefore from the above observation by the High Court entails that, judiciary as an institutional
must be independent from other branch in decision making. As the Judge Mfalila, J., similarly
stated in Hamisi Masisi and 6 Others v, Republic24 that,
“I would warn the executive at Musoma to stop interfering in the judicial process
and that once an accused is taken to the court he is subject only to the jurisdiction
of the court. Any other actions on the party of the executive at Musoma will be in
breach of the Constitution of this country in which event this court will have to
move in its defence against anyone who will act in breach of its provisions. One
of the duties of this court is to protect the Constitution of the land.”
2.6 The making of particular laws (particular legal orders) should be guided by open,
stable, clear, and general rules.
It is sometimes assumed that the requirement of generality is of the essence of the rule of law.
This notion derives (as noted above) from the literal interpretation of ‘the rule of law’ when
‘law’ is read in its lay connotations as being restricted to general, stable, and open law.25 It is
also reinforced by a belief that the rule of law is particularly relevant to the protection of equality
and that equality is related to the generality of law.26 The last belief is, as has often been noted
before, mistaken. Racial, religious, and all manner of discrimination are not only compatible but
often institutionalized by general rules. This formal conception of the rule of law does not object
particular legal orders as long as they are stable, clear and open. But of course particular legal
orders are mostly used by government agencies to introduce flexibility into the law.27 A police
constable regulating traffic, a licensing authority granting a licence under certain conditions, all
these and their like are among the more ephemeral parts of the law. As such they run counter to
the basic idea of the rule of law. They make it difficult for people to plan ahead on the basis of
their knowledge of the law.28 This difficulty is overcome to a large extent if particular laws of an
24 [1985] TLR24
25Raz, supra n. 13 p 216
26Raz, Op Cit 216
27Raz, supra n. 13
28 Ibid p 16

12. ephemeral status are enacted only within a framework set by general laws which are more
durable and which impose limits on the unpredictability introduced by the particular orders.29
2.7 Robust and Accessible Enforcement.
Legal processes must be sufficiently robust and accessible to ensure the enforcement of the just
laws and human rights protections.This factor expresses the idea that the laws must be
enforceable. The law must be accessible and so far as possible intelligible, clear and predictable,
the law must be written in a way that can be understood by ordinary persons in society. That is,
statutes and judicial opinions should use words that can be understood by the average person.In
the United States, it has long been established that a right without a remedy is not a right at all.
In Marbury v. Madison, Chief Justice John Marshall wrote for the Supreme Court in 1803:
“The government of the United States has been emphatically termed a government of laws, and
not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy
for the violation of a vested legal right.” “Access to justice” is an essential element of the rule of
law, and must afford people’s remedies to enforce their rights and the ability to access the courts
to pursue those remedies. In Tanzania also the laws do recognize the right of individuals and
access to justice as an essential to the principle of rule of law. In Joseph Kivuyo and Others v.
Regional Police Commander, Arusha and Another30in which Hon. Judge Edward
Mwesiumo, (as he was then) said that, “the court is a temple of justice and nobody should fear
to enter it to battle his legal redress as provided by the law of the land.”
As aforesaid,the doctrine of rule of law comprises of the multiple factors which togather
differentiate the forms of the government as stated above.These factors explained above indicate
the existance or non existace of the rule of law in the said government.Each of them tried to
deacribe on how eidher adherence or non adherence of the doctrine on each set of factor
therein.As falling under the democratic government, all factors which present in the doctrine of
the rule of law are found under such a government and vise versa of it found under Authoritarian
government of which is totaly relate to dictatorship form of government.
CONSTITUTION
29 Ibid p 216
30 Miscellaneous Civil Application No.22 of 1978,in the High Court of Tanzania atArusha,(unreported)

13. Constitution of the United Republic of Tanzania of 1977 and its amendments
CASE LAWS
Joseph Kivuyo and Others v. Regional Police Commander, Arusha and Another. Miscellaneous
Civil Application No. 22 of 1978, in the High Court of Tanzania at Arusha, (unreported)
James Bita v. Idd Kambi [1979] LRT 09.
Hamisi Masisi and 6 Others v, Republic [1985] TLR24.
Mwalimu Paul John Mhozya v. Attorney General [1996] TLR 130.
BOOKS
Badeski, R. State Building In Modern China: The Kuomintang in the Prewar Period, 1981.
Endicott, T., Administrative Law, New York: Oxford University Press, 2009.
Foulkes, D., Administrative Law, 8thEdn, London: Butterworths, 1995.
Germani, G. Authoritarianism, Fascism and National Populism, New Brunswick: N.J.
Transaction Books, 1978. Halsbury’s Laws of England, 4thEdn, Vol. 1(1).
Hunington, S. P., and C. H. Moore, Authoritarian Politics in Modern Society: The Dynamics of
Established One-Party System, NY. Basic Books.
Mathew, K. K., Democracy, Equality and Freedom, Lucknow: Eastern Book Co. 1978.
Mushi, E. G., Administrative law of Tanzania, Mzumbe: Mzumbe University, 2014.
Peter, C. M., Human Rights in Tanzania: Selected cases and Materials, 1997.
Raz, J., The Authority of Law: Essays on Law and Morality, published to Oxford Scholarship
Online, March 2012.
Wade,W., Administrative Law, Oxford: Oxford University Press 2009.
JOURNAL ARTICLES
Aristotle, “Politics”, 1988 vol. 3, Cambridge University Press
Tamanaha, B. Z., The History and Elements of Rule of Law. [2012] Singapore Journal of Legal
Studies.
OTHER MATERIALS
Aiyar’s P. R., The Law Lexicon: The Encyclopedia Law Dictionary, 2ndEdn, New Delhi:
Wadhwa and Company Nagpur, 2004.