Delegated legislation in Tanzania (powers to delegate, limitations and control of delegated legislation)

POWERS, LIMITATIONS AND CONTROL OF ADMINISTRATIVE AUTHORITIES

 Meaning of power

 Refers to the ability conferred on person or body by law to determine, by his own will directed to that end, the local relations of himself or others.

 Powers can either be, Public like those which are vested by the state in its agencies or employees, Private to include those entrusted on one person against another normally in private relations OR General-those which are by law incident to an office.

 Mode of exercising power

 The exercise of power may be discretionary or mandatory. It is discretionary when there is freedom of choice put on a competent authority to decide whether to act or not whenever deemed fit so to do. It is mandatory when there is duty to act and failure to do so raises legal consequences.

 Classification of administrative actions/powers

 The administrative law has classified actions of the administration into three, namely, “administrative”, “legislative”, “judicial” or “quasi- judicial” . 

 Just as the government of a country is divisible into three functional components, viz., Legislative, Judicial and Executive, so are the powers conferred on the Administration, which are classified into:-

 (i) Legislative Power: which in administrative law parlance is known as Delegated Legislation? Legislation might be defined as the making of general rules to govern future conduct (Public Acts of the Parliament)

 (ii) Adjudicative power which is generally characterized as quasi-judicial or adjudicative power. Administration is considerably more difficult to define. It may be taken to mean the application of general rules to particular cases by the making of some order or some decision or by performing some action. 

 (iii) Administrative power, which is non-legislative and non-adjudicative in nature. The central case of judicial function is the final and binding resolution of disputes as to facts, or as to the existences or the scope of legal rights or duties, by means of finding facts deciding what the law is and applying the law to the facts. They include administrative instructions, formulation of policies and of alike. 

 1. LEGISLATIVE POWERS

 Ideally, the function of making law is an exclusive province of the Parliament by virtue of the doctrine of separation of power enshrined under Article 4 of the URT constitution as amended time to time, but due to various reasons such as shortage of time in legislating the legislature may confer its law making power to administrative organs to meet the local variation

  Thus the by-laws, regulation, orders, circulars, rules made by these administrative organs are technically termed as delegated/secondary/subsidiary/subordinate legislations.

 Meaning of delegated legislation

 Delegated legislation is a legislation made by subordinate authority duly authorized by an Act of the Parliament to do so for a certain purpose and they can be orders, regulations or notice or by law.

 Section 4 of the Interpretation of Laws Act , defines subsidiary legislations to mean any order, proclamation, and rule, rule of court, regulation, notice, by-law or instrument made under any Act or other lawful authority. Following the provision of the definition provided, it may not be wrong to equate subsidiary legislation to delegate.

 Forms of delegated legislation

 According to Takwan , delegated legislation may take several forms. They may be normal or of the exceptional type; they may be usual or unusual; positive or negative skeleton or Henry viii clause. Therefore delegated legislation classified into (i) title based legislation example by- laws, notification, schemes, orders, ordinances (ii) discretion based classification that conferred on the executive to bring the Act into operation on fulfillment of certain condition like condition or contingent legislation (iii) purpose based legislation includes the nature and extent of power to be exercised (iv) Authority based legislation .

 Legal Justification of delegated legislations

 The Legal basis of delegated legislations in Tanzania is found under Article 97(5) of the Constitution of the United Republic of Tanzania of 1997 as amended time to time, where according to this Article the parliament is not precluded by the constitution to confer it’s power of making laws to any person or department of government to make regulations having the force of law or conferring the force of law on any regulations made by any person, or any department of Government. Generally despite the legislature is conferred with powers under Article 64(1) (2) , but Article 97(5) of the Constitution of the United Republic of Tanzania as amended time to time empower the parliament to delegate those powers to other organs or department to enact laws .

 In that sense, the  local  government  authorities  (Urban and  Rural)  which are  established  by virtue  of  Article  145  of  the  Constitution  of  United Republic  of  Tanzania, has  given  such  powers  by  legislature  to  make  subsidiary legislation  on  its  behalf.

 For  example  section  153, 160  and  168  of  the  Local  Government District  Authorities  Act , provides  legislative  power  for  District  authorities  to  make their  own  bylaw  for  the  people  of  that  specified  areas. The  same  power  is  enjoyed by  urban  authorities  as  it  is  stipulated  by  section  88,  89,  90,  and  94  of  the  Local Government  Urban  Authorities  Act.

 Status/position of 'Delegated Legislation' in relation to Principal Legislation

 Delegated Legislations are inferior/ subordinate to Principal Legislations (i.e. any Delegated Legislation which is inconsistence with any Act of the Parliament is null and void). However, a Delegated Legislation which is properly enacted becomes part and parcel of the law of the land (like any other law) capable of being enforced in the Court of law.

 Sections 41 & 42 of Cap. 1 provides that;"41(1) a reference in a written law to a written law shall be construed to include a reference to any subsidiary legislation made under that written law. (2) A reference in a written law to an Applied Act shall be construed to include a reference to any subsidiary legislation made under that Act. 42. Any act done under subsidiary legislation shall be deemed to be done under the written law under which the subsidiary legislation was made."

 Reasons for delegated legislation

1. Pressure upon parliament time

 It avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and or made without having to pass an Act through Parliament, which can be time consuming. Changes can therefore be made to the law without the need to have a new Act of Parliament and it further avoids Parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation.

2. Technicality of experts of certain matters

 Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. These matters are required to be handled by experts. Here, the legislative power may be conferred on experts to deal with the technical problems such as those concerning gas, atomic energy, drugs, electricity just to mention a few.

3. Emergences

 In times of emergency, quick action is required to be taken. Delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation. For example in times of war and in cases of epidemics (Sudden disease), floods, inflation (increase and fall of price), economic depression (decline) and other national emergencies, the executive is vested with extremely wide powers to deal with the situation.

4. Experiment

 The practice of delegated legislation enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience. 

 For example, in road traffic matters, an experiment may be conducted and in the light of its application necessary changes could be made. The advantage of such a course is that it enables the delegate authority to consult interests likely to be affected by a particular law, make actual experiments when necessary and utilize the result of his investigation and experiments in the best possible way. If the rules and regulations are found to be satisfactory, they can be implemented successfully. On the other hand, if they are found to be defective, the defects can be cured immediately.

5. Flexible situations

 Delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated legislation is therefore able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament. E.g. bank rate, police regulations, export and import, and foreign exchange.

6. Complexity of modern administrative law

 The complexity of modern administration and the expansion of the functions of the state to the economic and social sphere have rendered it is necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. In a country like Bangladesh, where control and regulation over private trade, business or property may be required to be imposed, it is necessary that the administration should be given ample power to implement such policy so that immediate action can be taken.

 Advantages and disadvantages of delegated legislation

 Delegated legislation saves parliament time in making the law, as it avoids overloading the limited parliamentary timetable as delegated legislation can be amended and or made without having to pass an Act through Parliament, which can be time consuming.

 Moreover, delegated legislation can easily incorporate expert’s ideas in making law patterning certain matters that are technical in nature. 

 Nevertheless, delegated legislation plays a great role to the society at large as it allows the participation of individuals in the affairs of their government. 

 Not only that, but also delegated legislation are best in responding to emergence situations. For example in case of eruption of diseases or floods the delegated legislation can be passed quickly to respond to such emergencies.

 Furthermore, delegated legislation enables the government to experiment as its practice of enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience. 

 Last but not least, unlike the principle legislation, delegated legislation are flexible as they may cover situations that the parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making . 

 Despite the fact that delegated legislations have several advantages in Tanzania but such legislations are also characterized by several disadvantages as it shown below:

 Firstly, delegated legislations may be challenged  under  the  supremacy  of  the enabling Act and  the  supremacy  of  the  constitution and  declared  void  while  principal  legislation  even if challenged  remains valid  until parliamentary amendment  process. 

 Secondly, delegated legislation sometimes are criticized for violating the doctrine of separation of power, in the sense that by that doctrine making the laws or legislation is the main domain of legislature and therefore with delegated legislation such power will be exercised by other bodies hence violation of doctrine of separation of power.

 

 Thirdly, delegated legislations may be inconsistent with the constitution and infringe some people’s rights. 

 Finally, delegated legislations may contain too technical and ambiguous words that possess challenges to the general public to understand what they mean.

 FUNCTIONS WHICH CAN BE DELEGATED (PERMISSIBLE DELEGATION) 

 Commencement (the beginning of something.)

 Several statues contain an 'appointed day' clause, which empowers the government to appoint a day for the act to come into force. In such cases, the operation of the act depends on the decision of the government.

 Supplying details

 If the legislative policy is formulated by the legislature, the function of supplying details may be delegated to the executive for giving effect to the policy. What is delegated here is an ancillary function in aid of the exercise of the legislative function.

 Modifications

 Sometimes, provisions are made in the statute authorizing the executive to modify the existing statute before application. This is really a drastic power as it amounts to an amendment of the act, which is a legislative act, but sometimes, this flexibility is necessary to deal with the local conditions.

 Prescribing punishments

 In some cases the legislature delegates to the executive the power to take punitive actions.

 Inclusion

 Sometimes, the legislature passes an Act and makes it applicable, in the first instance, to some areas and classes of persons, but empowers the Government to extend the provisions thereof to different territories, persons or commodities.

 Exclusion

 There are some statutes which empower the Government to exempt from their operation certain persons, territories, commodities, etc. The Legislature which is burdened with heavy legislative work is unable to find time to consider in detail hardships and difficulties likely to result in enforcing the legislation.

 Suspension

 Some statutes authorize the Government to suspend or relax the provisions contained therein. 

 Application of existing laws

 Some statutes confer the power on the executive to adopt and apply statutes existing in other States without modifications (with incidental changes) to a new area. There is no unconstitutional delegation in such cases, as the legislative policy is laid down in the statute by the competent legislature.

 Framing of Rules

 A delegation of power to frame rules, bye-laws, regulations, etc. is not unconstitutional, provided that the rules, bye-laws and regulations are required to be laid before the legislature before they come into force and provided further that the legislature has power to amend, modify or repeal them.

 FUNCTIONS WHICH CANNOT BE DELEGATED (IMPERMISSIBLE DELEGATION) 

 Despite the fact that the parliament have delegated power to the executive make some laws but there are some functions  which cannot be delegated (impermissible of delegation) because the essential legislative function belong to the parliament. 

 Section 36 of the Interpretation of the Laws Act  provides for the restriction of the applicability of the delegated legislation  Those matter cannot be delegated includes repeal of law modification of law, exemption, removal of difficulties, retrospective operation, future Act, imposition of tax ouster of jurisdiction of courts, offence and penalty , as briefly discussed hereunder;-

 Essential legislative functions

 It is now well-settled that essential legislative functions cannot be delegated by the legislature to the executive. In other words, legislative policy must be laid down by the legislature itself and by entrusting this power to the executive; the legislature cannot create a parallel legislature.

 Repeal of law

 Power to repeal a law is essentially a legislative function, and therefore, delegation of power to the executive to repeal a law is excessive delegation and is ultra vires.

 Modification

 Power to modify the Act in its important aspects is an essential legislative function and, therefore, delegation of power to modify an Act without any limitation is not permissible.

 Future Acts

 The legislature can empower the executive to adopt and apply the laws existing in other States, but it cannot delegate the power by which the executive can adopt the laws which may be passed in future, as this is essentially a legislative function.

 Ouster of jurisdiction of courts

 The legislature cannot empower the executive by which the jurisdiction of courts may be ousted. This is a pure legislative function.

 CONTROL OVER DELEGATED LEGISLATION

 The general principle of delegated legislation is that it must be consistent with the Parent Act and cannot travel beyond the legislative policy and the standard lay down by the legislature, thus they have to be exercised in conformity with the parent Act that confers such powers. 

 The essence is to ensure that rules, by-laws, regulations, which made by delegated authorities, are not travel beyond the legislative policy, if they go beyond that the legislation enacted will be held ultra-vires, with no any legal effect.

 From the aforesaid discussion, the control over delegated legislation in Tanzania can mainly be categorized in two categories such as judicial control and legislative control of delegated legislation. 

 Other means of controls performed by other organs such as Prime Minister’s Office-Regional Administration and Local Government, Ministry of Constitution and Legal Affairs, Regional Commissioners Office just to mention few.

 JUDICIAL CONTROL

 In the case of Jama Yusuph v. Minister for Home Affairs , the court noted that;    “….The principle is that if an administrative authority is acting within its jurisdiction, and no appeal from it is provided by statute, then it is immune from control by a court of law. But if it exceeds its power, or abuses them so as to exceed them, a court of law can quash its decision and declare it to be legally invalid.” 

 Rules, by-laws, regulations, etc which are enacted by administrative authorities are normal subject to control by the court by invoking the doctrine of ultra vires .

 The doctrine of Utra-vires comes into play where the legislating body or person sidesteps procedures or substantive matters provided in the Enabling Act or other laws of the land. The doctrine was fully embraced in the celebrated House of lords decision in the the case of Ashbury Railway Carriage and Iron Co. v Riche , where in this case the Company was incorporated under the Companies Act, 1862 to make, sell or lend on hire all kinds of railway plant. The Company entered into a contract to construct a railway line. The act of the company was held to be ultra vires.

 Another landmark case which propounded the doctrine of ultra vires in Tanzania is the case of Sheikh Mohamed Nasor Abdullah v. The Regional police of Dar es Salam and two others . In this case the issue was whether the president has power to deport person from Tanzania mainland to Zanzibar. It was held that, the order of deportation against the applicant was unlawful hence be set aside and the applicant be released unless he is otherwise lawful held restricted. Therefore administratively the president acted ultra vires. 

 In the other case of Chunchua s/o marwa .v. attoney general and another , where the court held that the president on his own authority conferred to him by the law, could not deport a person from one part of the country to another without any justifiable reason, and therefore he acted ultra vires.

 This doctrine is mainly applied in two tests, the first test is procedural ultra vires and the second test is substantive ultra vires.

 SUBSTANTIVE UTRA VIRES

 In substantive ultra vires the courts checks if delegated legislation has gone beyond the scope of authority conferred on it by the constitution or by the parent statute, this is to say in making of delegated legislation in Tanzania, the authorities required to act within the power conferred to them by the legislature, failure to that the legislation will be declared by the court to be null and void.

 The case of Kruse v Johnson , is a good illustration of this. The Kent County Council made the by-law which stated; “No person shall sound or play upon any musical or noisy instrument or sing in any public place or highway within fifty yards of any dwelling house after required by any constable, or by an inmate of such house personally, or his or her servant to desist”. The by-law was held to be unreasonable.

 In Tanzania it is well explained in section 36 (1) of the Interpretation of the Laws Act , that subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act and subsidiary legislation shall be void to the extent of any such inconsistency.

 A delegated legislation may be challenged on the ground of Substantive ultra vires if any of the following occurs; where the parent Act is unconstitutional, where the delegated legislation does not conform to the parent Act, Where the delegated legislation is unconstitutional, where it’s Unreasonableness, Mala fide, Sub delegation, Exclusion of judicial review or has a Retrospective effect.

 PROCEDURAL UTRA VIRES

 In Procedural ultra vires the court checks on subordinate legislation if they fail to comply with procedural prescribed by the parent Act or by a general law.

  This is to say while framing rules, by-laws, regulations, etc; the delegated authorities are required to observe the procedure prescribed by the parent Act or enabling statute.

 The procedure includes consultation to some persons or group of persons who are likely to be affected by a particular legislation, publication of drafts, rules or by-laws, laying legislation before the Parliament, Requirement of notice of intention to make subsidiary legislation by a particular authority just to mention a few.

 However procedural requirements will only invalidate delegated legislation where such requirements are mandatory. 

 It is a principle in administrative law that the delegates are required to comply with these procedures and exercise the power in a manner indicated by the legislature. 

 In Tanzania, various procedures prescribed in the laws to ensure control of delegated legislation. Example in section 37 (1) (a) of the Interpretation of the laws Act , provides a requirement for publication of subsidiary legislation that all subsidiary legislation made under any Act of parliament shall be publicized.

 In a case of Fatuma Awadhi Said , the court of Tanzania provides the importance of publication by showing the intention of each publication.

 Nanal Damodar Kanji v. Tanga Township Authority , the facts in briefly is that: the accused owned a house, which was situated at the corner of Akida No. 6 Street in the township of Tanga. On the 12 June 1939 some old papers were found in the street outside his house. He pleaded not guilty to a charge under rule 25 of the Township Rule which says “No person shall know or deposit… in or upon any street… dust refuse… or noxious matter. Any such accumulation being immediately in front of any house shall be prima facie evidence that the same has been thrown there or deposited by the occupier of such house”. The court held that “Rules and by-laws made under statutory powers enforceable by penalties are construed like other provisions which encroach the ordinary rights of persons. They must, on pain of invalidity, be not unreasonable, nor in excess of the statutory power authorizing them, nor repugnant to that statute or to general principle of law”.

 In this case rule 25 which used to convict an accused person was contradicting the presumption of innocence as a general principle of law which requires an accused person to be presumed innocent until he is proved guilty.

 In R v. Hermitte , the appellant was convicted and fined under a by-law made under section 69 of the Local Government (Municipalities) Ordinance 1928, which reads “No person shall create any disturbance so as to be an annoyance to any residents or passengers”. It is important to note that the said by-law does not specify in what circumstances and in what place (whether a public place or a private residence) a disturbance would fall within the meaning of the by-law. On appeal it was contended that the by-law was ultra vires inter alia because it is (was) uncertain”. It was held that the by-law in question was uncertain, unreasonable and ultra vires of the powers conferred on the Municipality and therefore null and void.

 CONTROL OF DELEGATED LEGISLATION BY LEGISLATIVE ORGAN

 This is another model of control over delegated legislation vested to the legislative organ in Tanzania. The function is automatically vested to the parliament due to the reason that in a parliamentary democracy it is the function of the legislature to legislate.

 As pointed out in Lohia Machines Ltd .v. Union of India , that the underlying object of parliamentary control is to keep watch over the rule-making authorities and also to provide an opportunity to criticize them if there is abuse of power on their part.

 In Tanzania the parliament is watching delegated legislation mainly in two ways: one is through laying legislation on the table before the House and second is through scrutiny of legislation which is done by specific committee.

 Laying on Table; This is intended to serve two purposes, that is, to inform the legislature as to what rules have been made by the executive authorities and to provide an opportunity to the legislators to question the rules made or proposed to be made.

 Scrutiny committees; These are committees formed by the parliament itself with a view of strengthening its power of control over delegated legislation.

 THE DOCTRINE OF DELEGATUS NON POTEST DELEGARE

 Delegatus non potest delegare is a Latin maxim which means ‘a delegate cannot delegate’. 

 In legislative matters if parliament confers power upon executive authorities intention is that it shall be exercised by executive authority, and not otherwise, so the power granted to executive authorities by legislature cannot further delegated.

 It is a principle of administrative law suggesting that ‘those to whom power is delegated cannot themselves further delegate that power’ . 

 It is also noted in the case of Remtulla Gulamani v. R , that the rule against sub delegation of the subordinate powers is expressed through the Latin maxim Delegatus non potest delegare meaning a delegate is not competent to further sub-delegate.

 The origin of the delegation powers in Tanzania

 In Tanzania, delegation of powers originates from the speech made by late J.K. Nyerere when he said that his government was putting final touches to decentralize the government powers from Dar-es-salaam to the regions as much as possible. This decentralization of decision making would necessarily involve delegation of powers which had become necessary as a result of the gigantic development program the government had embarked upon .

 Historical development of the maxim

 The principle was first articulated in Canada in 1943 in an article in the Canadian Bar Review by John Wills. While it is acknowledged as the seminal (influential) articulation of the law governing the sub-delegation of statutory and discretionary powers and still often cited, it has not archived the rigid standing originally intended.

 The maxim has had some success as an operational principle in the restriction of delegation of legislative and judicial powers but the demand of modern governmental regulatory practices has inhabited its application in the delegation of administrative powers .

 Therefore, the maxim is subject to some exceptions as follows:

 (i) The statue Authority conferring power, the rule does not apply if there is express or implied authority to delegate.

 (ii) The doctrine of Alter Ego Theory, ministerial functions are diverse. It is not possible for a minister to personally perform all function entrusted to his ministry. He must therefore be assisted by officials in his ministry. But actions of such officials are taken to be the actions of the minister and he is responsible to the parliament for such actions. Thus ministerial powers are usually delegated .

 So basing on the above exceptions, it can be reconciled that the maxim ‘delegatus non protest delegare’ is not an absolute rule and it can work side by side with the principle of delegation of powers. Therefore a delegate can still further delegate those delegated powers under some circumstances permitted by the law.

 The case of Carltona v. Commissioner of Works  provides for the relationship between the delegation principle and the non-delegation principle. The traditional view is that the two principles can comfortably be reconciled; in his judgment Brightman J stated that in this context we are concerned with the devolution (decentralization) rather than the delegation of power.

 3. QUASI JUDICIAL POWERS

 Judicial powers are powers which involve determination of a question of law or fact by reference to pre-existing rules or standards. They declare rights and impose obligations upon parties affecting their civil rights. 

 Judicial powers are based upon investigation subject to certain procedural attributes contemplating an opportunity for presenting a case, ascertainment of facts by means of evidence if dispute be question of fact; and if the dispute be a question of law, the presentation of the legal arguments.

 On the other hand, quasi-judicial powers are not judicial powers per se. These are powers which have some attributes of judicial powers but not all.

 Although quasi-judicial powers are not judicial per se, yet there is a duty to act judicially for any person exercising quasi-judicial powers in all such matters which might affect the freedom of liberty of any individual.

 Sub-delegation of judicial powers

 Different from other powers like administrative powers, judicial powers cannot often be delegated. Lord Denning in Barnard v National Dock Labour Board  stated that;

 “While an administrative function can often be delegated, a judicial function rarely can be; no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication.”