LEAT
February 2012
Introduction
The use of law, in its broadest sense including rules, regulations and taboos as a tool to conserve and protect forests, has been used from time-immemorial. The law making function in modern democracies is usually vested in the Legislatures (Parliaments) by the Constitution. Article 97 (1) of the Constitution of the United Republic of Tanzania’s of 1977 (as amended), vests the lawmaking function in the Parliament of the United Republic. The law that is enacted by Parliament is what is generally referred to as principal legislation.
The Constitution of the United Republic permits Parliament to delegate its law-making functions to other persons or authorities. Article 97 (5) provides:
“Masharti yaliyopo katika ibara hii au katika ibara ya 64 ya Katiba hii hayatalizuia Bunge kutunga sheria na kuweka masharti ambayo yaweza kukabidhi kwa mtu yeyote au kwa idara yoyote ya Serikali madaraka ya kuweka Kanuni za nguvu ya sheria au kuzipa nguvu ya kisheria Kanuni zozote zilizowekwa na mtu yeyote au idara yoyote ya Serikali”
A liberal translation of the above provision basically provides that the Constitutional provisions stating that the Parliament shall be the sole law-making organ shall not prohibit it, (Parliament) from enacting a law to delegate its law-making powers to any other person or authority.
By-Laws Defined
The laws that are made by persons or authorities under the provisions of the above Article 97 (5) are often referred to as subsidiary (delegated) legislation. Subsidiary (delegated) legislation could take the form of regulations, rules or by-laws. A by-law is therefore the legislation that is not made by Parliament directly, but through any other person (authority) duly authorized by an Act of Parliament.
Justification of By-Laws
The intricacies of law making are usually complicated and the principle legislation enacted by Parliaments cannot cover all aspects of the social problems that the laws seek to address. Consequently, Parliaments, as noted above, are allowed to delegate their law-making powers to other persons or authorities in accordance with the law. Some events that need to be addressed immediately by legislation happen so spontaneously and could not have reasonably been foreseen by Parliament. Under normal circumstances it would not be easy to convene Parliament hurriedly to pass a law to address such an event. In fact, laws enacted by Parliament are often relatively general in scope and coverage, leaving the details to be covered by subsidiary legislation. For example, it would be difficult for Parliament to make by-laws for effective and meaningful conservation and protection of forests in every village in Tanzania!
Main Legislation Governing By-Law Making
Further to the Constitutional provisions permitting Parliament to delegate its law making function, Parliament has often promulgated principle laws to govern or regulate the making of by-laws. Usually, principal legislation provides for the making of subsidiary legislation by the Minister. Aside from the Constitution, other main legislation that govern the by-law making process by local government authorities (Cities and District Councils, townships, municipalities and villages) generally are the following:
The Interpretation of Laws Act, Cap. 1 R.E. 2002;
- The Local Government (District Authorities) Act, Cap. 287, R.E. 2002; and
- The Local Government (Urban Authorities) Act, Cap. 288 R.E.2002
Prerequisites for By-Law Making
There are some fundamental matters that have to be taken into account in the process of making by-laws in order for them to have force of law. The main ones may be summarized as follows:
(a) Requirement of Publication
In order to facilitate consultation and participation of the target groups, the Local Government (District Authorities) Act provides that proposals of by-laws be made public. The Interpretation of Laws Act also lays emphasis on the requirement of publication. It makes the publication of by-laws in the Government Gazette mandatory unless the contrary intention appears in the principle legislation under which that by-law was made.68 Draft village by-laws need not be published in the government Gazette, but must be made known to villagers.
Publication of draft village by-laws is to be effected in an open place that people usually frequent before they come into operation. This could be at the market place, local government (village leader’s) offices and places of worship. The intention of publicizing these is to provide an opportunity for people to air their views on the by-laws, avoid conflicts and facilitate a smooth implementation and enforcement mechanism.
Parliamentary Control
The Interpretation of Laws Act makes it mandatory to submit by-laws (regulations) made by a Minister, District, Municipality or Township to Parliament for approval following publication in the government Gazette. When such a by-law is submitted to Parliament for approval, three things are likely to happen to it. The by-law may be left intact, amended or annulled altogether.
Where the by-law is annulled, it ceases to have effect but transactions made prior to it being annulled will be legal. Village by-laws come into operation after being approved by the District. These are not laid before Parliament.
Retrospective Operation
A retrospective law is that which is enacted to make illegal a transaction or dealing that had taken place before its coming into force or to legalize such transaction or delay. Section 37 (2) of the Interpretation of Laws Act provides that no by-law shall have retrospective operation.
Authorities may, however, appoint different days for the coming into force of different parts or provisions of the by-laws.
Enforcement
The Interpretation of Laws Act states that by-laws may provide for offences and prescribe fines. However, these must be specific and provide for maximum or minimum amounts. The Interpretation of Laws Act places a limitation on the amount of fine for by-laws made by District authorities. It provides that such fines should not exceed Six Hundred Thousand Shillings (Tshs. 600,000:00). Again the total value of the forest produce illegal obtained may exceed this amount, rendering the by-laws ineffective. A different mechanism could be devised to get the value of the forest product first in each case of transgression of the by-law and then determine the amount of fine to impose.
Judicial Control
The principle legislation emanating from Parliament, giving power to authorities to make bylaws usually sets out limits within which the power is to be exercised. Where an authority makes a by-law in violation of the power vested in it by the principal law, such by-law could be challenged in a court of law on the basis of non-compliance with the principal law. A number of court decisions have declared by-laws illegal on the basis of not complying with the directives provided for by the principal laws.
Besides making reference to principal legislation in determining the validity of by-laws, courts have also developed a number of principles to ascertain their legitimacy. Accordingly, courts are likely to declare illegal those by-laws that do not conform to or fail the tests of the principles of fairness, reasonableness, clarity, definiteness or where they are ambiguous.
By-Laws for Conservation and Management of Natural Resources
Most of the principal legislation that have a bearing to the management of natural resources do not have a comprehensive outlook to form a sound basis for integrated management of natural resources. However, in some cases most are still largely fragmented and sectoral in nature, despite the effort to make cross-referencing.
Also, some of these laws do not reflect basic concepts of environmental protection. Very few have addressed the issue of community involvement in environmental protection. By-laws, therefore, have a major role and place in determining the direction of the management of the environment and natural resources in view of the problems of the principle legislation, especially at the level of local communities.
Advantages of By-Laws
By-laws serve as a useful tool in realizing the decentralization process and can be utilized to conserve forest resources because of a number of advantages. Some of the advantages include the following:
- Empowering local communities to determine the manner in which the resources in their areas should be utilized;
- Empowering local government authorities to levy taxes and fees on resources available in the areas;
- Empowering local communities to control the influx of people into their areas who could cause stains on forest resources in their jurisdictions;
- Helping to identify and protect local people’s forest resources which would otherwise be susceptible to alienation or being issued to other people without assigning relevant reasons to local government authorities;
- Helping to codify forest resources conservation traditions and customs so that they may become part of the laws that govern the forest resources management regime of the community; and
- Helping to form part of a community’s way of life and enable the forest management bylaws to be understandable by most community members.
Levels of Making Village By-Laws
As already noted above, by-laws for the management of forest resources could be enacted at different levels as follows:
- The Ministerial level - by the respective line Ministers;
2. Local government authority level – City, township, District authorities; and
3. The Village level - by Village Councils.
1. Ministerial Level
The Minister responsible for local governments is empowered to make by-laws (including ones dealing with the environment and forest resources management) to govern District and Village Councils under the provisions of the Local Government Authority Acts. The Minister responsible for natural resources may also make regulations for the management of forest resources. He may also make model forest management by-laws for local government authorities to consider for adoption.
2. City/Township/District Level
Cities, townships and Districts are empowered to by-laws under the provisions of the Local Government (District Authorities) Act and the Local Government Finances Act.
Example: The Environmental Protection by-laws were also made on 18th March 2011 by the Ilala District Council under the Local Government (District) Authorities Act, 1982, Cap, 288, [R.E. 2002] GN. No. 110 of 2011
3. Village Level
Village Councils have been vested with powers to make village by-laws by the provisions of the Local Government (District Authorities) Act. The by-laws have to be approved by the District Councils.
7.0 Role of District Councils in Forest Management
The amendment to the Local Government (District Authorities) Act was specifically aimed at empowering District Councils with the mandate of making by-laws to ensure that the environment including forests is safeguarded.
District Councils are vested with powers to approve village by-laws. The District Councils are therefore an important player in the making of village by-laws. They should, with the assistance of the legal officers, be able to give guidance to village councils on modalities of formulation of the by-laws. The District Council’s main official roles in making by-laws are to:
- Educate Village Councils on the procedure to be applied in by-law making;
- Provide assistance in drafting village by-laws;
- Ensure that village by-laws are not in conflict with principal laws; and
- Help in enforcing village by-laws.
The principal legislation governing village by-law making process, the Local Government (District) Authorities Act provides for guidelines which are mandatory in the by-law making process. These have to be followed to the letter and it is the duty of the District Councils to ensure that the procedure is complied with before approving the by-laws.
Procedure for Villages to Make By-Laws
A Village Council has to convene a meeting of the Village Assembly and cause the proposal of enacting by-laws to be considered. The Village Natural Resources Committees (VNRCs) where they exist may help at this stage. The by-laws could be amended or passed without amendments. The Council has to take into account the views of the inhabitants, if any after publication of the draft by-laws. The Village Council then submits the proposed by-laws together with the minutes of the meeting of the Village Assembly that deliberated the by-laws to the respective District Council. The District Council may approve the by-laws with modifications.
Conclusions
The review of natural resources policies and related principal legislation above clearly illustrates that the village by-laws need to be re-examined, if Natural Resources Management programs are to be achieved successfully. It is also noted that the village by-laws are skimpy. Their attempts to address natural resources management is at a much generalized level. The specific focus of NRM issues by the by-laws is also skeletal. The use of standard formats strongly suggests that the makers of the by-laws do not have a comprehensive understanding of the by-law making process. As pointed out, some of the provisions of the by-laws are contradictory making their implementation and enforcement difficult from a legal point of view. The rules and schedules in some of the by-laws conflict with the text of by-laws that the rules have purportedly been made under.
