Browsing by Author "Hamad, Yahya Khamis"

Now showing 1 - 2 of 2
  • Thumbnail Image
    Item
    The changing Paradigm in juristic adjudicative methods in Tanzania: the effect of the Bill of Rights Constitutional Order.
    (University of Dar es Salaam, 2004) Hamad, Yahya Khamis
    This study was aimed at the systematic and constructive examination of the changing paradigm in the tanzania courts’ juristic approach in judicial review generally, and specifically on the changes as have been affected by the entrenched bill of rights. The examination has started with the general nature of juristic adjudicative functions, and it has covered the Tanzania courts’ adjudicative functions in judicial review both before and during the bill of rights era. The main concern in this examination was to study how the Tanzania courts approached issues in the discharge of their judicial review exercises. The study findings have revealed that the basic pattern of Tanzania courts’ judicial review before the bill of rights era was characterised by the English common law approach to uphold the rule of law (i.e. legalism). It also used constitutionalism which is based upon the written constitution with Ground norm status. However, with the entrenched bill of rights, the Tanzania courts’ juristic approach in judicial review has combined both legalism, constitutionalism and intuitive or informed interpretation of the bill of rights provisions. The study findings have shown in detail how Tanzania courts have made this possible.
  • No Thumbnail Available
    Item
    Jurisprudential approaches in enforcing human rights in Tanzania
    (Unversity of Dar es Salaam, 2015) Hamad, Yahya Khamis
    This thesis focuses on the jurisprudential approaches in enforcing human rights in Tanzania. It covers examination of the concept of human rights and its philosophical grounding with their relevancy in universal, regional and national conceptions of human rights. It also covers philosophical considerations involved in the transformation of 'human rights philosophy' into 'human rights standards' and also human rights legal norms. As the philosophical roots of human rights are founded under international law and then, derived into domestic legal systems, the thesis addresses international (global and regional) and national perspectives in dealing with human rights related matters. This approach has provided necessary tips for examination of theories and practices of adjudicatory approaches in enforcing human rights norms both at international and national levels, against which (theories and practices) the Tanzania courts approaches in enforcing human rights have been assessed. As the result, the challenges facing the Tanzania judiciary in enforcing human rights have been identified. These include: over-adherence to foreign standards; unsatisfactory analysis of factual, legal and social values underlying disputes; uniformed use of the principles of 'proportionality' and 'margin of appreciation'; inconsistent use of authoritative standards; application of technicalities to the detriment of justice; erratic development of non-justiciable principle; non-recognition of the 'basic features' principle; avoidance to determine weighty issues in maintaining 'good relationship' with the executive and the legislature; and indeterminacy of the courts in clashes of constitutional provisions. Finally, recommendations have been set out to alleviate the challenges.