By Evarist Baimu Nyaga Mawalla - Home

Those who espouse the narrow approach would like to tell us that because of that ousterclause the Presidential election cannot be challenged in court. That is wrong.In the case of East African Railways Corporation vs. Anthony Sefu24 Mwakasendo, J.(as he then was) took the narrow approach in arriving at the decision. In there section 16of the Public Service Commission Act 1962 read“The question whether any Commission has validly performed any functionvested in it by this Act; shall not be enquired into in any court.”The judge held that the ouster clause ousted the jurisdiction of the High Court to inquireinto the validity of the decision to dismiss Anthony Sefu.22. At p 18723. (1967) E.A 44524. (1972) HCD No.220taken by the East African Railways and Harbours Service Commission as the decisionwas within its jurisdiction. Even if the decision was procured by fraud, that school ofthought argues that the commission has the right to go wrong or right within itsjurisdiction. It is of interest to note here that on a similar ouster clause Kneeler, J. of theHigh Court of Kenya in the case of Chief vs. E.A Community25 decided to adopt thebroad approach and held that the High Court had power to enquire into the decision ofdismissal of an employee to see if the same was arrived at tin breach of rules of naturaljustice or not.Surprisingly in Tanzania in cases filed to challenge detention orders under the PreventiveDetention Act, 196226, both the High Court and the Tanzania Court of Appeal havetaken the narrow approach. That statute had the ouster clause in section 3 which now hasbeen repealed by Act No. 2 of 1985. That section read:“No order made under this Act shall be questioned in any court.”In the case of Ali Yusufu Mpore vs. R.27 Samatta, J. stated that the High Court could notgo further than the “authenticity” of the detention order to see if it is properly signed andsealed.A similar approach was adopted by Maganga,J. in Ahmed Janmohamed Dhirani vs. R.28and later Bahati, J echoed what his colleagues had said earlier in the case of Dhikri.29Then the Tanzania Court of Appeal n the case of A.G vs. Lesinoi Ndeinai 30 adoptedthe narrow approach despite the fact that the Anisminic Case was mentioned. In that caseNyalali, C.J. said:123