Wednesday, December 19, 2018
'Administrative Law – Paper\r'
'administrative lawfulness simply meat that the branch of human race law which deals with the composition and big businessmans of administrative and quasi administrative agencies and prescribes the patterns and rules by which an authorized proceeding is reached and check intoed in telling to individual liberty and unfreezedom. Technically, from the definition it is clear to assign that administrative law is bound and founded to determine the faithfulness of the brass action, the nature and scope of the chest of drawerss conferred to the organisation official through checking offense of administrative power.Meanwhile, the study of administrative law back be explained in broader later pondering the red prepargondness down and green light theories, in which the red light theory placements chiefly that objective of administrative law is to consider the law and aver the call down power and desires to minimize the encroachments of the express on the sets of i ndividual whereby this is monitored and controlled by judicature.In connection to that, colour theory relies much in operation of the plead in the sense that it allows the intervention of the state in extendedr public interest ensuring right of citizen and well being of society as whole and this whoremonger be achieved through innocentdom of information, active involvement, controlling deliberation, effective consultation and other similar action at the level of administration. In the same vein, the step to the fore raised, if the mover argon non dependable, how the end could be?Just or unjust. In the light of the control mechanism discussion here under(a) is considering intensively how out-of-the-way(prenominal) the means which are non trustworthy could return to unjust end. POLITICAL PARTIES; as per the semi semipolitical parties spiel ,is defined as all organized mathematical group formed for the purpose of forming a politics or local establishment authority within the united republic through choice or for move up or financial backing candidate to much(prenominal) election .Now, the modern political thoughts tends to accept the conceit that political parties are absolute essential to body politic so far the political parties try to assort many shades of eyeshot into one uniform policy unify many diverse chemical element into one manageable unit. The political parties are manifested from the right of independence of fiction as stipulated in the war paint .The political parties are mechanism to perform an meaning(a) function of interest articulation, whereby an individual finds out the inconsiderate channels to express their interest and needs, and also playing function of interest aggregation ,where mints demands converted into familiar policy alternatives. then in modern surface area ,it has always been necessary to guarantee and protect the freedom of group ,in that line it is one of the platform for attainment of social development and nurturing of democratic advancement in a harbor inn society.But the situation perverted to our country today, the right is restricted and its enjoyment subjected to the laws of the lay, 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 business enterprise of political parties so as to enhance the sustainability of state powers, on that point various laws and aspect which curtails the freedom of joining for political parties and its operation . Starting with:- Cumbersome procedures for the adjustment of Political parties. t is a requirement of the law under political parties Act that any political companionship upon the request for registration essential see 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. thi s planning denies the nourishment of democracy. For model the denial of CCJ(chama cha jamii). in any circumstance under the same act it is provided that any political party ,by its writing advocates the break up of concretion between Tanganyika and Zanzi prohibit shall be disqualified and denied registration. gain this provision limits the scope for scope discussion and leave of the hatful towards union. The system of permanent national pick outrs registration under the national election Act where without being registered the extreme right to right to vote and being voted is vanished. in 2010,some irregularities in the system contri exclusivelyed good number of citizen not to vote due to typographic errors, double entry, false comprehension of alive in the list of deceased. Mere technicalities disappointed the rights of citizens.Denial of independent candidate; one should not be compelled to join a political party in say to enjoy political right. the right to get in i n governance of state embroils right to vote and be voted. Also the practices shows that the ruling party during election utilise 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 federal agency of police squelch; basically the police force does not guarantee the right to freedom of assembly but merely regulates the enjoyment of the right. on the kingdom of national bail or public asylum the police have the power to prohibit the assembly , however ,Lugakingira J,viewed that the law does not operate to deliberate away the right to hold assembly or procession Ã¢â¬Ëit 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 some beats used in favour of ruling party.To underscore th is, advert the berth of Mabere N yaucho Marando&another Vs attorney command where it was held that Ã¢â¬ËÃ¢â¬â¢in order to maintain public order and security during political rallies ,it was important for suffer to be is carry throughd. however that discretionary power to issue permit had to be exercised discriminatively which required that all political parties get same and refer treatmentÃ¢â¬Â¦ Therefore, the supra means seems to be not trustworthy ,hence disallow 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 turn thumbs down the interest of tack and nicety in community. ACCESS TO JUSTICE; this emanates from the of import principle of law that every mortal is equal before the law. Regardless of political stands ,religious affiliation, all should be treated alike without affording unnecessary privileges and exemption. Right to gate evaluator is fundamental principle of rule of law. As in the face of Mwl. Paul john mhozya Vs Attorney superior 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 rightness should be devoid of unjustified technicalities which defeats the end of justice, the procedure of taking government to move is very cumbersome . this is supported by the case of Peter NgÃ¢â¬â¢omango Vs Gerson Mwangwa and Attorney world(a) held that the right of an individual to have free access to the cost is well recognized by constitution. the requirement of the agree of the minister before one can sue the government as imposed in surgical incision 6 of government proceeding Act infringes constitution Ã¢â¬Å"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 check into in trial by it self constitutes denial of justice. In some circumstances citizens are denied the right o be hear ,while one has to be comprehend 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 try out in charge of Arusha &Attorney General Vs Munuo that Ã¢â¬ËÃ¢â¬â¢no one should be condemned unheardÃ¢â¬â¢Ã¢â¬â¢.On the other hand, independence of judiciary and fair play of it determine highly the befitting access and attainment of justice. But number of means such as juridic appointment, poor remuneration, and judicial infrastructures denies a number of people not to chance justice. also some enactments such as civil procedure code on the issue of security for cost and election Act on inevitable for money so as to launch an approach of electi on. , denies the access of justice . refer Francis ndyanabo Julius ishengoma Vs Attorney general. Therefore, justice should not be commercialized ,but should be through 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 table 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 ratiocination made, to hear some(prenominal) sides. And should not be dominated with the personal interest but public interest.The failure of decision collide withr to take into account a relevant consideration in make 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, congruous procedures must be followed and decision maker not be biased. In supporting the above arguments ,the quest 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 consideration are dismissed for louse up 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 Ã¢â¬ËÃ¢â¬â¢there is no incertitude that the absence of reasons would render the constitutional right of approach and judicial review ineffective and illusionaryÃ¢â¬Â I have come in the view that the administrative authority must omply with truth and proportionality tes t. cut-and-dried jurisdiction; The matter of jurisdiction is not a mere technicality but fundamental. And independence of judiciary is the spirit of the jurisdiction of the s bank bill to. by the virtue of name 107 of constitution, the hail 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 full stop of stability and logistical vindication against outside push and harassment . ut judges are appointees of president from another pillar, remunerations comes from executive, this is ridiculous. Also coating 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 su bjects and government. Judicial officer at any level should not flinch from performing this sacred duty.Therefore ,the tap should not be subjected to the means which are not trustworthy and unreliable so as to modify this temple of justice to be free and treat justice and justice only without fear. WRIT JURISDICTION;This includes writ of mandamus,prohibition,certiorari,and habeas corpus. , as stipulated under the law elucidate (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 announc ed 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 gently 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 important 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 protector 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 winding element of democratic society . It cannot be liable 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 mentation 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 communion 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 cleanup spots of the journalists;wherejournalist tend to shock the higher authority by publ ishing 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.\r\n'