By Evarist Baimu Nyaga Mawalla - Home

Another important consideration underlying the requirement to give reasons as towhy a servant is removed in public interest, is to satisfy a basic need for fair play.A person affected by an ad verso order is untitled to know why the decision hasgone against his or her. What is required is not a detailed judgment but a briefand concise statement of reasons for the adverse decision.Moreover the obligation to give reasons, our President should note, also flowsfrom the citizen’s right to know and the right to have information which is anessential component of the freedom of speech and expression guaranteed underArt. 18 of our constitution. The Supreme Court of India in the case of S.P. QuotaVrs. Union of India: (1982) A.I.A. (S.C.) 149 declared the right to know from theguarantee of free speech in the Indian Constitution. I adopt that reasoning. Thusthe rights to have information obliges the President and other authorities todisclose reasons for their decisions which affect citizen’s rights.It can be said with confidence that since Art. 13 (6) (a) of our Constitutionprovides for the right of appeal and right of judicial review from every decisionaffecting citizen’s rights, then ipso fact it creates a third head of the principles ofnatural justice ranking equally with audi alter am partum” (the right to be heard)and remo judex in sa cause (the rule against bias). This third head is the right toreasons from a decision-maker – that it is a denial of natural justice to refuse togive reasons to the party who lost. Thus the third pillor Pf the principles of anatural justice is here to stay just as day follows right. In order that it be at nodisadvantage in point of Latinity, this third arm of the principles of natural justice,should be reformed to as nllum arbittrium sine rationibus.So the State Attorney Mr. Nyabiri was wrong as was the President to equateremoval in public interest with termination at the President’s will or pleasure.There is a vast difference between the two as adumbrated above.Then Council for the Republic Mr. Nyabiri arged that it is for the president and notthe courts to determine what annunts to public interest. He said that the decisionof the President is subjective and that is whey the legislation in question statesthat if the President considers it’ to be in public interest. So he said that thewords used puts in clearly that it is entirely in the discretion of the President todetermine whther a particular decision is in public interest or note. Iam quitecertain that the State Attornoy is wrong. In matters of this kind the test is anobjective test and not a subjective test. A similar expression was considered bythe Tanzania Court of Appeal in the case of Agro Industries ltd Vrs. AttonrneyGeneral: Civil appeal No. 34/1990 (DSM) whose judgment was delivered on23/4/1993. What was in issue was the provision in S.10 (2) of the LandOrdinance Cap. 113 which provides:‘Not with standing the provisions of sub-section (1) the president may revoke anight of occupancy if, in his opinion, it is in the public interest so to do.,455