1.0 INTRODUCTION
You should be familiar with the following areas
- Concept of Power
- Category of Power
POWER
Power means authority to do or not do or to act. Some people relate the power with jurisdiction to have common meaning but that relates wir
ADMINISTRATIVE AUTHORITY HAS TWO POWERS
1. Legislative Powers
2. Administrative Powers
3. Quasi Judicial Powers
1. LEGISLARIVE POWERS
Powers granted to the executive by the legislature where the Mininister or bodies have powers to make subsidiary laws example Rules, Regulations, Orders and Proclamation these are made by executive.
REASONS BIHIND DELEGATED LEGISLATION
1. Lack of time; Delegated Legislation came because the state changed from law to a social welfare state whereby the state authorities increased on different fields and the parliament could met with the required legal rules to cooler for the activities have delegated legislations became developed in the society by state;
2. Statute or Legislation usually lacks the necessary details for the purpose they are created for a way to supply such details is to make delegated legislation;
3. To avoid Technicalities- relates to the subject matter for which delegation is required some matters required expert to deal with and parliament cannot because many MP’S are good politician but not expert in several fields.
4. It is easy to change or amend unlike the principal legislation
CONTROL DELEGATED LEGISLATION
There are two principal methods
i) Judicial Control
ii) Parliamentary Control
iii) Quasi Judicaial Control
I. JUDICIAL CONTROL
The judiciary control delegated legislation though judicial Review, the court simply test to decide the validity of the delegated legislations to determine whether they are proper and not ultra vires.
METHOD EMPLOYED BY COURTS
a) Substantive Ultra Vires
b) Proccedural Ultra Vires
A. SUBSTANTIVE ULTRAVIRES
This refers to the substantive to determine whether the delegated legislation is illegal or irrational.
CIRCUMSTANCES UNDER WHICH A DELEGATED LEGISLATION MAY BE HELD INVID BASING ON THE SUBSTATIVE ULTRAVIRE
a) Where the Principal legislation is unconstitutional. In Tanzania Law derive their powers from the Constitution and if the delegating legislation is unconstitutional then the delegated legislation made from the principal then the delegated legislation because unconstitutional and ultra vires
b) Where the delegated legislation is inconsistency with the principal legislation. It may be made ultravires when it falls beyond the terms conferred by the principal legislation.
c) Where the delegated legislation is unconstitutional
d) Where the delegated legislation is termed unreasonable the legislative presume that they can only allow reasonable rules by laws and Regulations to be made by executive. When the executive made a delegated which is unjust unreasonable or oppressive such that delegated legislation would find no justification in the mandatory reasonable man it will be held ultravires.
B. PROCEDURAL ULTRAVIRES
Judicial is deciding the validity delegated legislation uses the test of procedural ultraveres usually principal legislation provide for the procedure to be followed by the delegate in mailing delegated legislation such procedures must be followed same as procedures are mandatory others are discretionary.
Failure to observe mandatory procedures will making delegated legislation:-
i) Antecedent publicising- In this procedures delegated authority is required to give notice in certain to give or alter delegated legislation notice is given to those affected by the proposed legislation so that they can give their views or can object such delegation. Example when making by laws minister is required to give a notice and publish it in government Gazette.
ii) Consultation
In making delegated legislation the authorities are suppose to make consultation either though conferences or meeting they can also concise and visitors commented within respective departments for consultation. Consulting is important because though it people can air out their views.
iii) Approval
In same circumstances delegated legislation needs to be approved by a competent authority so as to check whether the procedures have been followed and to ensures its validity make by law the village council will be required to sublitt the law with the village assembly meeting minimum to the District Council for approval.
iv) Subsequent publicity
Subsidiary legislation or delegated legislation are required to be published in the government gazette. In this is mandatory unless the principal legislation provide otherwise so as to male the public aware and so that they can access the legislation.
II. PARLIAMENTARY CONTROL
The legislative has a duty to make laws but due to some circumstances the executive make laws or subsidiary legislation by using powers entrusted to lead by the legislative however the legislative has a duty to ensure the power granted to the executive are not abusee that is why the legislative does control or supervise delegated legislation this is done to many ways first Memorandum on delegation second laying procedures by using this way the parliament will provide rules or procedures on have the purposed delegated legislation should appear they usually provide the manner and content and the scope and manner of the proposed delegated legislation.
LAYING PROCEDURES
Thus comes when rules by law secures have been made the statute may denied. A delegated legislation that has been made to be tabled before the parliament they usually laid before the parliament after they have been published in the government gazette in Tanzania the standing orders do establish several committees one of them being the National Assembly standing Committee on delegated legislation. This Committee has to consider and report to the National Assembly on any Registration made in the exercise of delegated legislation powers.
The commiteee has a function of scrutizing all subsidiary legislatio to satisfying they are in compliance with the Constitution or with the Written Laws which whether Procedures have been followed.
Laying Procedure does not exclude judicial review since laying has no effect on the validity of the subsidiary legislation. The rules or subsidiary legislation can be made/ laid before the National Assembly and they can still be declared ultra vires by the court.
SUBDELEGATION OF LEGISLARIVE POWER IN LATIN DOCRINE OF DELEGATUS NON POTEST DELEGALE
This Doctrine mean that parliament though primary legislation has delegates the law making power to the delegate can not subdelegate such powers unless the primary legislative provide so failure to the delegate of legislation becomes ultra vires.
III) QUASI JUDICIAL POWER IN ADMINISTRATIVE POWERS
Administrative Authority usually does due as:
i) Judiacial works meaning the administrative body do discharge judicial functions in the case of Ridge v Baldwin ( 1964) AC No.40 1963 Vol.2 ALL ELR No.66 Judge held that ” the duty to act judicial may arise from the various nature of the function performed by the authority these are social examples on Quasi Judicaual functions or powers.
THINGS TO CONSIDER IN QUASI JUDICIAL FUNCTIONS ON POWERS
1. Authority has to observe principles natural justice e.g Right to be heard
2. Once the authority has made a decision it can not Review the same decision