(IJA)

INSTITUTE OF JUDICIAL ADMINISTRATION

LUSHOTO

MANUAL ON CONSTITUTIONS AND LEGAL SYSTEMS

Prepared by Ms Anneth Amin Mnzava, LL.B (Hons) Dar.

UNIT 1
Introduction to Constitutions and Legal Systems
i. Introduction
ii. Objectives of the programme
iii. What is Legal System?
iv. Types of Legal Systems
v. Civil Law System
vi. Common Law System
vii. Socialist Legal System
viii. Conclusion

UNIT 2
Theory of State and Law
i. Introduction
ii. Objectives
iii. The Theory of State and Law
iv. What is Law?
v. Nature of Law
vi. Functions of State and Law
vii. Law compared with other social norms
viii. Division of law
ix. Correlation between State and Law
x. Law as Custodian of the Interests of the Ruling class
xi. What is a State?
xii. Conclusion.

1
UNIT 3
Constitutions
i. Introduction
ii. Objectives
iii. Definition of Constitution
iv. Why a Constitution
v. Classification of Constitutions
vi. Constitutional Structure
• Synopsis
• Major features
• The executive
• The Parliament
• The Judiciary
vii. Conclusion.

UNIT 4
Constitutional History and Constitution making in Tanzania
i. Introduction
ii. The First Constitution: The Independence Constitution, 1961
iii. The Second Constitution: The Republican Constitution, 1962
iv. The Third Constitution: The Constitution of the United Republic of
Tanganyika and Zanzibar, 1964
v. The Fourth Constitution: Interim Constitution of Tanzania, 1965 (one
party constitution)
vi. The Fifth Constitution: Constitution of the United Republic of
Tanzania (The Union Constitution), 1977 and its amendments
vii. Zanzibar Constitutions
viii. Conclusions

UNIT 5
Constitutional Principles
i. Introduction
ii. Sovereignty of the People
iii. Supremacy of the Constitution

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 iv. Separation of Powers
v. The Doctrine of Parliamentary Supremacy
vi. Representative Parliament
vii. Independence of the Judiciary
viii. Rule of Law
ix. Respect for Human Rights and Gender Equity
x. Conclusion

UNIT 6
i. The Court System of Tanzania
ii. The Court System during British Rule
iii. The Present Court System
iv. The Court System of Zanzibar

UNIT 7
Laws applicable in Tanzania
i. The History of JALO, 1961
ii. Written Laws
iii. Common Law
iv. Equity
v. Statutes of General Application
vi. Customary Law
vii. Islamic Law
viii. Conclusion

UNIT 8
Internal Conflict of Laws
i. Meaning of Conflict of Laws
ii. Conflict between any Law and the Constitution
iii. Conflict between Written Laws
iv. Conflict between Written Laws and Customary Laws
v. Conflict between Customary Laws
vi. Conflict between Customary Laws and Islamic Law
vii. Conclusion.

3
UNIT 1

Introduction to Constitutions and Legal Systems

i. Introduction

ii. Objectives of the programme

iii. What is Legal System?

iv. Types of Legal Systems

v. Civil Law System

vi. Common Law System

vii. Socialist Legal System

viii. Conclusion

Introduction
Generally, the study of Law comprises of number of courses in Law including

Constitutions and Legal Systems of variety Countries/Continents of the

World. The key objective of the Constitutions and Legal Systems Course is

to expose to the students the concept of a constitution as a basic law in any

particular legal system around the World. To begin with the key elements

and basic concepts of the course will be introduced.

Objectives
At the end of the lecture students are expected to be able to:

• Explain what it means by a legal system

• Identify the different global legal systems

• Outline the historical background and the developments of each legal

system

• Identify the features of each legal system

4
What is Legal System?
Legal System presupposes the existence of laws, including the constitution,

regulations, the instruments of their enforcement and the instruments for

deciding whether or not in any given case the laws or regulations have been

violated1. Briefly, one would argue that Legal System presupposes the

existence of Law making body (the Legislature in any form be it Parliament,

Congress or House of Representatives), the Executive and the Law

Interpreter (the Judiciary)

Types of Legal Systems

The World does not posses a uniform type of legal system. Legal Systems

differ from one country to the other, some countries follow religious form

of a legal system like Islamic Law System to most of Arab Countries,

African countries, before colonialism, based mainly on Customary Law

System and these are still in application, with various amendments, todate in

some countries like Tanzania. In most cases these laws do not stand as legal

systems but rather as personal laws to settle mainly inheritance, succession

and family disputes. There are many different legal systems of human

civilization. But the most dominant legal traditions and systems in the

modern world are Western. This is because over the last couple of centuries,

West European countries invaded and dominated much of the world and

continue to do so today through their economic and military

superiority…Therefore there are variations, and between legal traditions.

1
C. K. Mtaki, Constitutions and Legal Systems of East Africa: part one, @ p.3

5
None of them is monolithic2. However, the most popular and applicable legal

systems in the world are two i.e. Civil Law System and Common Law System,

but the scholars have added another type called Socialist Legal System,

which came at the triumph of socialism in several countries like the former

USSR. Other legal systems, though not popular, include Islamic Law,

Customary Law, and Hindu Law etc.

Civil Law System

This legal system is a result of joint efforts of Scholars from Universities

of Latin and Germany between 12th and 13th Cs in Western Europe. Some

Scholars, such as David and Brierly prefer to refer to this system as

Romano-Germanic3. Thus, Civil Law System originated from continental

Europe, and is principally centered there today even though because of

European’s expansion through colonialism, many non-European countries have

adopted it or borrowed certain elements. The Civil Law System was formed

by the efforts of the European Universities which, from 12th C and on the

basis of the compilations of Emperor Justinian (A.D. 483-565), evolved and

developed a juridical science common to continental Europe. The compilations

were known as the DIGEST. Prior to this time there existed various laws

however they were not that much developed to acquire the status of a legal

system, thus Justinian made extra ordinary efforts to give the existed laws

the status of legal system, however, this was just a first phase.

The second phase came after the fall of Justinian Empire where by the

DIGEST ceased to apply and primitive legal systems came to the

2
I. G. Shivji et al. Constitutional and Legal System of Tanzania: A Civics Sourcebook, @ p.21
3
C. K. Mtaki, supra, @ p 4

6
replacement. These primitive legal systems based on either tribal or clan

foundations.

The second phase in the growth of civil law system began with the

renaissance of Roman law studies in the universities of Latin and Germanic

countries during 12th C. For about five Centuries the system was dominated

by the writings of jurists under whose influence legal practice itself in

continental Europe evolved. The second way finally paved way to the third

phase that came to be known as the Modern Phase in which the legal system,

apart, from the dominance of the jurists writings is now dominated by

legislation- written law.

Features of Civil Law System

• Initially, the task to determine and formulate the law was vested with

the jurists/Legal scholars.

• It evolved as an essentially, private law. (Tailored to regulate private

relationships between individual citizens)

• Court proceedings are based on Inquisitorial procedure. I.e. The judge

has a much more central role in the process of not only judging but in

inquiring, and setting the terms of inquiry, into the dispute.

Common Law System

The Common Law System operates in England and Wales. This is a legal

system that bases on the doctrine of precedent where by law develops

7
through the judges who seek principles and rules from previous decisions to

decide the matters at hand. Therefore, the Common Law System does

recognizes the laws made by the Judges while deciding cases through the

principles and rules from previous decisions and this fact makes Common Law

to be both the laws made by the law making body (Parliament) and the law

interpreter. Thus, the question that “ Do Judges make laws?” receive the

positive answer “YES” under the Common Law System, while to some other

legal systems like civil law system the interpreter in this context the

Judiciary is not allowed to make law. So, the most important thing to note

here is that under common law system court decisions, though not all of

them, are laws after the long time practice. It is to be understood that

court decisions become laws when judges announce their decisions and give

the reasons to their decisions, when cases of similar facts arise then judges

would just decide to be guided by previous decisions. (formally this was

taken to be persuasive in nature but after time, judges found

themselves bound to decide cases of similar facts through the principle

of analogy from previous decisions, this developed through the doctrine

of binding precedent, stare decisis. This had one objective to make

develop uniformity in cases of similar facts though judges do enjoy the

right to decide cases by basing on their facts; each case has to be

decided on its own merits), This is called in law decision-making by analogy,

and this is what is called judicial precedent. Therefore, court decisions

become law only when developed through judicial precedent.

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Origin and growth of common law
The common law has its origin in Anglo-Saxon customary rules by judges

after the Norman Conquest in 1066. Before the coming of William the

Conqueror in 1066 there already existed a primitive legal system consisted

mainly of customary rules and written laws which were codes of law compiled

by Anglo-Saxon Kings. Geographically the whole country was divided into

shires and each shire had its own court known as communal court. The courts

used to administer the customary rules and the written laws that were

compiled by the Anglo-Saxon kings. The shire court met periodically in the

county town and was presided over by an official known as the sherrif, who

was a representative of the king.

In 1066, King William of Normandy conquered England establishing feudalism

and a strong government and legal system. At first, William and his co-

Norman kings ruled the country by using the existing local courts and other

institutions. But beginning the year 1096 William began sending

administrative officers and royal officials throughout the country to

discharge administrative and judicial functions. This system enabled William

to control the country better because the royal officials sent or hear cases

offered better methods of trial compared to the communal courts. In the

long run the communal courts died a natural death.

Therefore it can be concluded with certainty that common law was

formulated from the indigenous customs by royal itinerant judges who were

sent out as representatives of the king, to administer justice throughout the

realm which was then divided into circuits. In the course of discharging

their functions the judges ascertained and applied the customs applicable in

9
the locality. They discovered the customs with the help of a jury and then

applied them. On completing their circuits the judges returned to the royal

courts at Westminster. Here the judges would discuss the merits of various

customs discovered, agreeing on certain customs and rejecting others. In

this way local customs gained the force of general law since local customs

formed the basis on which judges developed the common law. By about 1250

of those customs were sifted and unified into one system of law common to

all people hence the term “common law”4.

Features of the Common Law System

• Itinerant judges formed it.

• It bases on the doctrine of precedent.

• It is adversial in nature in which parties make their side of the case

and the judge play an impartial role.

• It is mainly Public law since private matters were not much of concern

to common law courts.

EQUITY
The English legal system is made up by common law and the well-known

doctrine called the principle of Equity. This is a body of laws in contrast to

the common law that developed in the 15th C. by the court of Chancery to

remedy the inadequacies of the common law. Equity became a supplement to

common law. It happened several times in England that people were not

satisfied with the decisions announced by judges by basing on common law.

4
C.K Mtaki, Supra, at pp. 8-10

10
People thought that in some instances common law was not doing them

justice, people sought a mechanism of seeing the King by themselves and

present their grievances for fair and just solutions. The King’s wisdom

became another legal means in handling peoples’ disputes. Thus, since then

Equity stands for natural justice and fairness. One should go to equity with

clean hands.

Socialist Legal System

Socialist laws constitute the third category of world legal regimes. The

system originated in the USSR. With the triumph of the Socialist Revolution

USSR began to build new type of society. The society to be created is a

communist one under the aegis of fraternity (brotherhood) where there will

be no more state and no more law. In a communist society state will be made

superfluous by a new feeling of social solidarity developed through the

disappearance of the capitalist world’s antagonisms. In this communist

society even the instruments of coercion will disappear and that social

relations will be ruled primarily by communist morality. It can simply be

argued that the Socialist Legal System targeted on building communism

where by state and law would not find their way to survive in the societies,

however, with the fall of USSR, it is doubtful if the remaining countries like

Romania for example will be able to stand their goal of transforming their

societies into communism.

Features of Socialist Legal System

• Revolutionary in nature.

• Disappearance of State and law.

11
 • Private law narrows down at the expense of public law.

Conclusion
With the above lecture it is highly expected that students are now well

equipped with what it means by the term Legal system. It is also certain that

students are at this juncture able to explain different types of legal

regimes that operate or were once upon a time in operation in the World.

Finally, students should be well aware on how these legal systems were

introduced in Africa particularly in Tanzania.

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 UNIT 2
The Theory of State and Law
xiii. Introduction
xiv. Objectives
xv. The Theory of State and Law
xvi. What is Law?
xvii. Origin of Law
xviii. Nature of Law
xix. Functions of Law
xx. Law compared with other social norms
xxi. Division of law
xxii. Correlation between State and Law
xxiii. Law as Custodian of the Interests of the Ruling class (ideology of law)
xxiv. What is a State?
xxv. Conclusion.

Introduction
For a long time in the history of the World Scholars and philosophers have

been trying to find out what it means by these two important phenomena, i.e.

State and Law. Attempts have been made to ascertain on whether State and

Law have always existed. There have different types of approaches and

theories as far as the existence of law and state are concerned. In this

lecture some of these approaches will be looked at and see if the question

will receive a satisfactory answer. In addition the nature and correlation of

the two will be a mater of discussion in this lecture as well.

Objectives
• It is aimed that at the end of the lecture students will be able to:

• Identify broad theories of state and law.

• Define law.

• Differentiate law from other social norms.

13
• Explain the nature of law.

• Explain how law is created.

• Analyze the relationship between state and law.

• Define and explain the origin of the state.

The Theory of State and Law

There have been several attempts by various scholars and philosophers

on the origin of state and law, however, only two of them have received

the world’s attention and recognition. These broad theories are Idealist

theory and Materialist theory.

Idealist Theory.
Scholars who believe that the source and origin of everything is God

propound idealist theory. They believe that all material beings originate

from a transcendental being that is God. They contend further that

since God is the source of all material beings, he is, by the same token,

the prime mover of such material beings. Therefore they argue that God

is the sole determinant of all phenomena including law and state, which he

gives once and for all. Thus according to this theory state and law are

God given and for that matter they are eternal categories, which are

over and above man and society generally. To them Kings and rulers are

representatives of God in the world with the assignment to rule by divine

right. It is therefore a must for man to obey God fully. Founders of this

theory include John Locke and Thomas Hobbes, these and many others

connect state and law with God.

14
Materialist Theory.
Unlike Idealist theory, materialist theory contends that to understand

the origin of state and law it is important to study the historical and

dialectical development of the two phenomena. They therefore argue

that the two are social institutions, in which their origin is to be traced

through modes of production at each particular stage of human

development. To them, state and law came into being at a particular stage

of human development. They argue that state was not in existence at the

primitive communalism because at this time man lived a very low and

primitive life due to low level of development. They are of the view that

state and law originated at the time when man was highly developed

economically, socially and technologically, where man was able to produce

surplus. At that time when man had improved means of production. They

conclude by saying that state and law emerged when there was

tremendous improvement in the productive forces, production relations

and social relations which in turn guaranteed division of labour,

production of surplus, and class formation in society.

What is Law?
For years now Philosophers and other social thinkers have been making

attempts to explain what it means by the term law. However, it seems the

clear definition of law has been difficult to be obtained; there has not

been uniformity in the definition of law. Probably that has been so due to

the fact that law, like other social phenomena, is traced by different

15
approaches. Despite the fact that there have been various approaches on

the meaning of law that does not bar us from taking a stand somewhere

on the meaning and the nature of law. In this part various definitions of

law as given by different philosophers will be discussed. The discussion

will look at law as those rules, which we have to obey and, if we do not

obey them, we can be taken to court and get punished for breaking the

law.

Sir John Salmond defines law to mean the body of principles recognized

and applied by the state in the administration of justice. He argues that

law entails rules recognized and acted on by courts of justice. To

Salmond law are the rules enforced by the state. Is it a satisfactory

definition?

John Austin says law is a rule of conduct imposed and enforced by the

sovereign. To him law is a command of a superior being over the inferior

being that is enforced by sanctions/punishment. Austin establishes the

state to be the superior being while individuals are the inferiors. Thus,

law Is a command set by the state to the individuals.

Thomas Hobbes defines law to be an obligatory rule of conduct that is

set by him or them that have coercive power. Here Hobbes is of the view

that law is a command set by the state or rulers who own/posses the

police and other coercive powers.

At another level, law can be defined as a system of rules of social

behaviour. The rules can be general because they do not deal expressly

with a single person but with a group of human beings. The rules are also

16
 general because they describe a possible human behaviour (only social

behaviour) in a general abstract way5.

From all these definitions one will notice that all scholars agree that law

is either a rule or a set of rules. However, the most important thing to

note here is that form the definitions three elements are deduced, these

are:

• Law is a body of obligatory rules of human behaviour or conduct. It

is a collection of norms that one has no option other that obeying

them.

• Laws are rules that are imposed and enforced by a coercive body,

that is, a sovereign or the state. State refers to a central organ,

which has the monopoly of violence or ultimately uses force or

coercion so that law is obeyed. The ultimate use of force is an

important element of law. This differentiate law from other social

norms like moral, religious or social rules of conduct…

• Breach or violation of these rules results in a sanction being

applied against the person who breaches the rule.

Origin of Law
The origin of law is closely connected with the division of society into

classes in the course of a long historical period. Law was created to

secure the rule of one class over the other classes. Since society split

up into classes, the economically dominant class guaranteed its rule by

using the state to create and to enforce a legal system, which

5
C. K. Mtaki, supra at p. 23

17
corresponded to its fundamental interests. Law, therefore, express

the will of the economically and politically dominant classes. It

assumes the form of state will by virtue of the politically dominant

class because, above all, it dominates, the state. Since the state is an

institution of political power, law is always a political phenomenon.

Nature of Law
Law is differentiated form other social norms that regulate human

behaviour by its unique nature of normativity. Normativity of law

means that the members of society are bound to behave in accordance

with the law. People are bound to live in accordance with the law and

not in accordance with their interests and wishes. Law has always been

binding. Generally, normative nature of law is seen in three scenarios:

• Law as permissive rules.

• Law as prohibitive rules and

• Law as directive rules

Therefore, law regulates human behaviour through any of the above

ways.

Functions of Law
Law in any given jurisdiction has its own roles and functions. Through

these functions the need and demand of any society to have the law

are met. It is out of the need for well-governed society, the need to

have a well-organized public power, the demand for peaceful society

and the desire to have a system that governs and regulate individuals

in societies. Therefore, all these needs attracted the emergence of

18
law in societies and thus, laws that are set or enacted must fulfill

these demands. Therefore the following are the major functions of

law:

• Law has a role to structure public power. With this function law

expresses or establish public power (the state). Law also

structure and controls the exercise of power. It is the law that

puts in place the organs of the public power and set the limits

on the same. Law plays the role of recognizing basic human

rights and set the duties of the people in societies they live.

Therefore, by meeting this important role, law structures the

public powers for the benefit and good of both classes in the

societies mainly, the ruling class and the ruled.

• Law facilitates and regulates private relations. With the

advancement of technology and improvements in modes of

productions there have been tremendous changes in socio-

economic relations among individuals. Conducive environment

that would make the new socio-economic relations operate was a

must, and that environment was to be laid down by rules and

laws that would attract for example fair contractual relations,

or property ownership relations. In these we get law of

contract and law of property etc.

• The other function of law and which is well known to many is to

solve disputes or conflicts between and among members of

society. In any living and growing society where members of

that particular society interact in day-to-day activities,

conflicts are inevitable. Therefore, it is for the law to resolve

19
 these emerging conflicts and restore the status quo in society.

Through this role peace is restored and make people focus on

production activities and the living peaceful. This is done by the

state through law to set institutions like courts of law and

other bodies to resolve disputes.

Law compared with other social norms

Law is not the only social norm that regulates the social behaviour of the

people in society; there are other social norms like, rules of morality,

customs and organizational rules. The differences between law and other

norms are:

• Law is created by the state, either by being enacted by a law making

body or by being formulated by certain organs like courts and

members of the executive when practicing delegated functions.

• Law attracts state interests, therefore can be or is enforced by

means of exercising state power.

Divisions of Law
Commonly, law is classified into three categories that are:

• Criminal Law and Civil Law

• Public Law and Private Law

• Substantive Law and Procedural Law

Criminal Law and Civil Law

These are the well-known divisions of law to many people including laymen.

Criminal law is that class of law that attracts the interests of the

20
state/public and therefore deals with relationship between the state and

individuals. It deals with crimes and punishments. In criminal cases the

suspect of a crime is called the accused and those who allege suspicion

towards the accused are called prosecutors. When the case is

determined the accused is either found guilty or not guilty and if guilty

he is convicted and sentenced accordingly.

Civil law is the class of law that regulates the relationships of individuals

to which the state has no interest at all and is not directly involved. The

state only provides institutions and framework for the resolution of

private disputes. In civil cases the person who sues is called the plaintiff

and the person who is sued is called defendant. Normally punishment in a

civil suit is compensation when the court finds that the lawsuit is

justifiable.

Public Law and Private Law

Public law is that branch of law that deals with the relationship between

the state and the individual. It also provides for how public power is to

be exercised, by whom and by what limits. Public law comprises of laws

such as constitutional law, administrative law and criminal law. Private law

is the one that governs and regulate the relationship between the

individuals. It deals exclusively with relationships between private

individuals. Private law is made by various laws such as law of contract

and family law.

Substantive law and procedural law

Substantive law is the branch of law that deals with the rights and

relationships that give rise to either rights or obligations, while

21
 procedural law is the law that provides for procedure for establishing

who is right and who is wrong. E.g. the law that says it is wrong to breach

a contract is substantive under the law of contract. It provides for the

substance of the law that is what the law says or directs. The law that

says you have to file some documents or papers to make your case is

procedural one.

Law compared with other social norms.

Law is not the only set of social there are other norms such as customs,

rules of morality. However, law as a social norm is differentiated from other

social norms due to the fact that unlike other norms law is creature of the

state. The state through its law making body enacts laws or law is

formulated by state organs like courts of aw or the executive through

delegated powers. Other social norms are only enforced only when

recognized by the state. Upon recognition they attain the force of law and

regarded as laws of the country.

What is a State?
There has much confusion on defining and understanding the term ‘State’. In

most cases state is explained as a country, nation or government, but is

completely wrong. These are just related terms but their meanings remain

different. Normally, country is used to describe a geographical space or

territory bounded by internationally recognized boundaries. Nation refers to

a community of people constituted historically and who share territory,

language, culture and economy and they identify themselves as part of a

22
nation. E.g. the nation of Palestine exists but it does not have a country

because its people were driven out of their territory. Government is

interchangeably with the state but strictly speaking government refers to

the executive arm of the state while state is an organ of class rule. The

state is more than an executive it also includes judicial organs,

legislature, prisons, army and civil service. It is possible for the

government to change after a certain time but the state remains the same.

This happens because in most jurisdictions government is formed by the

strongest political party especially in multi-party countries. Summarily, One

will say that state means public power. State power is constituted in a

constitution of a country.

Emergence of state is traced at the time when society, due to improvement

in the means of production, split into classes. Initially, economically powerful

class formed the state but since the interests in society differed a special

instrument was needed to superimpose the interests of the ruling class onto

the whole society. Therefore, some changes were inevitable, state had to

develop as a special public power with supreme authority and a system of

institutions of coercion like the police, army and prisons.

To this juncture now one will be in a good position to answer the question as

to whether state and law have always existed.

Sir, Frederick Angels once argued, “State has not existed from all eternity.

There have been societies that did without it, that had no conception of the

state and state power. At a certain stage of economic development which

was necessarily bound up with the cleavage of society into classes, the state

became a necessity owing to this cleavage”.

23
Interrelationship between State and Law.
The interrelation between law and the state is historical one. History

demonstrates that law as a special system of social norms emerged together

with the state as a special system of public power. It is argued that with the

emergence of the state, emergence of special social norms that can be

enforced by the state was necessary to support the new states. These

norms had to be different form other social norms that were in operation

before states emerged. The new norms (law) were initially selected by the

state (from rules that existed in pre-state) but later on states stated to

enact laws in both cases protecting the enforcement of those rules by the

exercise of the new state power. This correlation between state and law has

been retained throughout history. Therefore, no state has ever been

without its own system of law, vise versa (no system of law has ever been

without a state power defining what is the law and protecting its

enforcement by the special means, which are at the disposal of the state

and of the state only.

Conclusion
The above discussion has responded to the very important question as to

whether Law and State have always existed. It is now a matter, which is so

certain that the two phenomena have never been existed always, but they

came through changes that took place in the world following various changes

of development in society. It has been also highlighted that law and state

are two sides of the coin that are inseparable. They support one another.

There has been no state without law and likewise. Some reached a point of

arguing that law is the custodian of the interests of the state. Law is put in

24
place to support and safeguard the interests of the ruling class, and law is

always political, in nature. Whether currently, that argument holds water is

also a matter of discussion, basing on the fact that nowadays we have

different types and branches of law some do support the rights of those

who by one way or the other are discriminated or their rights are either

violated or denied by different people or organs.

UNIT 3
i. Constitutions
ii. Introduction
iii. Objectives
iv. Definition of Constitution
v. Ideas about Constitution today
vi. Why a Constitution
vii. Classification of Constitutions
viii. Constitutional Structure
• Synopsis
• Major features
• The executive
• The Parliament
• The Judiciary
ix. Conclusion.

Introduction
The word constitution is not a strange one in the world today. In the vast

majority of the modern states or political societies there exists an

identifiable document, or a group of documents, called constitution,

embodying a selection of the most important rules about the government of

the country. There has also been awareness among people on the need and

importance of having constitution or amendments of the existing

25
constitutions in different countries. Procedures for constitutional

amendments differ from one another however, all amendments are common

on one thing, that is they require the amending measure to be passed by

special majorities in the legislature, or to pass through a referendum

procedure where by people have to opine through votes, or in some countries

both procedures can be applied. The procedure to be used in amending the

constitution is to be provided for in the constitution of a country, for

example the constitution of the United Republic of Tanzania, 1977 empowers

the Parliament under Article 98 to amend the constitution. In many

countries people have been struggling to have democratic constitutions in

their respective countries. The constitutions that reflect constitutional

structure and the one that have the required constitutional principles.

Stanley De Smith writes6 Constitutions are primarily about political

authority and power- the location, conferment, distribution, exercise and

limitation of authority and power among the organs of a State. They are

concerned with matters of procedure as well as substance. More often than

not they also include explicit guarantees of the rights and freedoms of

individuals. And sometimes they incorporate ideological pronouncements-

principles by which the State ought to be guided or to which it ought to

aspire, and statements of the citizens’ duties. Therefore, in this part the

discussion will dwell on what it means by the word “constitution”, its

classification, its structure and reasons as to why constitution.

6
De Smith, S. et al, Constitutional and Administrative Law, 7th Edition, Penguin Group,
England, 1994.

26
Objectives:
At the end of this lecture students should be able to:

• Define a constitution

• Know classification of constitutions

• Understand constitutional structure

• Know the motives of having constitution

What is a Constitution?
A constitution provides a framework of rules that creates the structure and

functions of a human organization. Any organization might have a

constitution, although an organization that depends on close personal bonds

such as a family is unlikely to do so. We are concerned with the organization

of a country comprising millions of people with few common purposes capable

of giving shape to a constitution7.

Wade and Phillips8 define constitution to be “a document, having special

legal sanctity, which sets out the framework and the principle functions of

organs of government of a state and declares the principles governing the

operations of those organs”

The above definition suggests that a constitution needs to:

• Be a legal document

• Set or establish the Pillars of the government

• Set the functions of those organs

• Set the powers and limits of those organs

7
Alder, J. constitutional and Administrative Law, 5th Edition, Palgrave Macmillan Publishers,
New York, 2005.
8
Wade, ECS & Phillips, H. Constitutional Law, London, 1965.

27
 However, this definition has received a lot of challenges from scholars

who argue that it is not necessary for a constitution to be found in a

document, it is possible for a country to have her constitution in various

documents, United Kingdom is mostly sited as an example where by her

constitution is made by the Magna Carta, 1215, the petition of right, 1628,

The bill of Rights 1688, The Act of Settlement 1700, and the Acts of Union.

Wheare9 defines constitution into two.

He firstly defines to mean “the whole system of government of a country,

the collection of rules, which establish and regulate or govern the

government. These rules are partly legal in the sense that courts of law

will recognize and apply them and partly non-legal or extra-legal taking

the form of usages, understandings, customs or conventions which courts

do not recognize as law but which are not less effective in regulating

the government than the rules of law strictly called”

In the above definition Wheare talks much on what it means by the word

constitution by basing on the essence other than the form (document or

documents) of the constitution. That is the wider and broader meaning of he

term.

In the narrow sense of the constitution Wheare says in almost every country

in the world except Britain, constitution means “the whole collections of

rules, legal and non-legal but rather a selection of them, which have

usually been embodied in one document or in a few closely related

documents”.

Prof. Issa Shivji10 defines constitution to be a piece of basic or

fundamental law, which tells how the state and its various apparatus are

9
Wheare K. C. Modern Constitutions, Oxford University Press, London, 1964.

28
organized, the interrelationships between them and the division of power

inter-se between and among these apparatuses.

Perhaps, one would agree with Prof. Shivji et al11… by saying that

Constitution is a law found in one or more documents which constitutes State

Power and defines the relationship between major organs of the State and

between the State and the Citizen.

Prof. A. V. Dicey (Dicey, 1915, p. 22) defines constitution to mean all rules

directly or indirectly affect the distribution and exercise of the sovereign

power in the state. Therefore, Dicey focuses on constitution being a

composition of rules that bring about how state power is distributed and

exercised. By this notion Dicey speaks on a constitution that puts in place

state organs, whether all rules are to be found in a single document or in

various documents that is not a, matter of concern and discussion to Dicey.

Anthony King writes12 [a] constitution is the set of the most important rules

that regulates the relations among the different parts of the government of

a given country and also the relations between the different parts of the

government and the people of the country. With definition Anthony seems

to deal much on idea that constitution is made up by rules that set organs of

government and how they relate between themselves and their relationships

with individuals. Anthony joins Dicey on the constitutional form, that

constitution might be a document or documents.

10
Vol. 11-14 EALR (1978-1981)- Publication of the Faculty of Law.
11
Prof. Shivji I. G. et al. Supra at p.37
12
King, A. Does the United Kingdom Still Have a Constitution? 2001, London: Sweet &
Maxwell, 2001.

29
Freidrich13writes, a constitution is the ordering and dividing of the exercise

of political power by that group in an existent community who are able to

secure the consent of the community and who are thereby make manifest

the power of the community itself. Freidrich’s definition suggests that a

constitution is to establish state power that is a result of peoples’ consent.

He stresses on consent of the community. (This seems to be a political

approach).

Tully (2002)14suggests that a constitution has a special status, he defines it

as the cluster of ‘supreme’ or ‘essential ‘ principles, rules and procedures to

which other laws, institutions and governing authorities within the

association are subject. Therefore, according to Tully, once a constitution

exists all other laws, organs of the government and institutions must derive

their legality from the constitution. In this perspective constitution is

supreme.

NB:
It is also the time to discourage the argument by some people who define

constitution to be a contract or agreement between the State and citizens

or between the ruling class and the ruled one. Prof. Shivji15says, this is not

correct either historically or legally. For, there is no evidence that rulers

and the ruled sit together and negotiate a contract called constitution. If it

is to be understood that a constitution is an agreement or contract it is to

be shown as to when and where these two parties to a constitutional

contract met and set terms of their contract, the thing that in normal

13
Freidrich, Limited Government: A Comparison, 1974, p. 21.
14
Tully, J. (2002) ‘The Unfreedom of the Moderns’, Modern Law Review, 65: 204.
15
Prof. Shivji I. G. et al. Supra at p.37

30
circumstances cannot be obtained. Again, for those constitutions that are

not Democratic how can citizens agree to a contract that violate or does not

recognize their rights for example? The modern philosophy of constitution

sees the constitution as a product of consensus among people themselves

(see in the preamble of our constitution that declares that it was made

by the people). In historical reality, various constitutions come about

through different historical circumstances and reflect the results of social

and political struggle in those societies. Therefore, the argument that a

constitution is a contract is wrong both, legally and historically.

Why a Constitution?
It is obvious that one will ask himself, after going through various

definitions, why constitution? There are number of reasons why there is a

need to have a constitution in countries around the world:

• A constitution acts as a political manifesto of any government in

power. By being the political manifesto the constitution states the

kind of government that is in power and its political ideology. For

example the constitution of the United Republic of Tanzania states in

the preamble that…KWA HIYO, BASI, KATIBA HII IMETUNGWA

NA BUNGE MAALUM LA JAMHURI YA MUUNGANO WA

TANZANIA, kwa niaba ya Wananchi, kwa madhumuni ya kujenga jamii

kama hiyo, na pia kwa ajili ya kuhakikisha kwamba Tanzania inaongozwa

na Serikali yenye kufuata misingi ya demokrasia, ujamaa na

kujitegemea na isiyokuwa na dini.

• A constitution is also used to put in place the guiding principles for

the ruling class and the ruled one. It puts the guiding principles in

31
 definitive words so that he rulers and the ruled may know those

guidelines.

• A constitution establishes the organs of the government and gives

powers and limits to these organs. In this the constitution has a last

say and acts a supreme organ.

The above explanation as to why constitution is summed up by Prof. Shivji16

who says, depending on how it was made that is whether it was imposed or

arrived at by a consensus a constitution serves an important function of

giving political power legitimacy, that is, acceptability and respectability.

Another important function of the constitution is to structure state power

by establishing and defining the powers and functions of different organs

and institutions of the state. The third function of the constitution is to

limit the exercise of power by stipulating certain basic rights of citizens.

Classification of constitutions
Constitutions are classified in different ways such as:

• Written or Un-written

• Flexible or Rigid

• Presidential or Parliamentary

• Unitary or Federal

• Monarchical or Republican

• Single Party and other Constitutions

• Diarchical and other Constitutions

Written or Unwritten Constitutions

A constitution is said to be written when it is found in a single document.

16
Ibid

32
This type of a constitution is found in almost every country of the world,

except in the United Kingdom. The idea of a written constitution is a legacy

of the revolutionary period in eighteenth and nineteenth century Europe

when, with mixed success, widespread uprisings challenged traditional

aristocratic, colonial and religious regimes. Since the French Revolution

(1789) almost every nation has adopted a written constitution, sometimes as

a reaction against a hated previous regime and sometimes to mark a new

event such as independence from colonial status17. The political significance

of a constitution as a single document was stressed by the radical Tom

Paine18 who said, a constitution is a thing antecedent to a government, and a

government is only the creature of a constitution… . A constitution is not the

act of a government, but of a people constituting a government; and

government without a constitution, is power without a right. It is to be noted
that though many countries in the world adopted written constitution the

form, purpose and the content of their constitutions differ, however De

Smith19 writes, although written constitutions differ widely in their

purposes, form and content, they normally be found to have two

characteristics in common. They will be the fundamental law of the land, and

they will be a kind of higher law. They will be fundamental law in so as they

designate the principal organs and invest them with authority; thus, they will

constitute and define the Legislature, and state what is the scope of the

law-making power and the procedure for exercising that power. In other

words, they will be law behind the law- the legal source of legitimate

17
Alder, J. Supra, p. 5
18
Paine, T. Rights of Man, (ed. H. Collins), pp.93 and 207.
19
De Smith, S. Supra p. 5

33
authority. It has been argued that written constitutions seek to avoid a

concentration of power in the hands of any one organ of government by

adopting the principle of separation of powers, vesting legislative power

exclusively in the legislature, executive power in the executive and judicial

power in the courts20. However, if that mission stands, that will be the

discussion on unit five of this manual. Unwritten constitution means a

constitution that is found in various writings- in statutes, law reports,

parliamentary standing orders, works authority, and so on, although

authoritative and reasonably comprehensive document called the

‘Constitution’ is lacking. This type of constitution is found in United Kingdom

where the foundation of legal system is covered by the doctrine of the

legislative supremacy of the parliament and therefore, much greater

importance attaches to Acts of Parliament and also to judicial decisions.

Flexible or Rigid Constitutions

A constitution is flexible when it requires no special procedure for

amendment. Any changes that are to be done in a flexible constitution need

not to pass through a special procedure. It is taken to be easy to amend a

flexible constitution. Rigid constitution is a type of constitution that

requires special procedure to be followed before it is amended. A special

procedure may take the form of referendum for example. (Referendum is a

defined to mean a direct vote by all the people of a nation or area on some

particular political question21). (On the procedure how to amend our

20
Wade E. C. S. and Bradley, A. W. Constitutional and Administrative Law, Longman inc., New
York, 1985.
21
Longman: Active Study Dictionary of English.

34
constitution see Art. 98). However, De Smith observes, the rigidity or

flexibility of written constitutions cannot be ascertained merely by

comparing procedures for constitutional amendment. A constitution

containing a cumbersome procedure for its own amendment may in fact be

very flexible if there is no effective opposition to the party in power; and

several modern states have authoritarian regimes22. Therefore, De Smith is

of the view that flexibility is a matter of degree, which will not necessarily

be predetermined by the formal procedure for constitutional amendment.

Presidential or Parliamentary Constitutions

This class mainly refers to system of a particular country, whether

presidential or parliamentary. It bears much on the executive branch of

government in relation to the legislature. In Presidential constitutions the

President is both the head of the state and the head of the executive, but

he is not a member of a legislative body directly. Tanzania is a good example

of this system. In Parliamentary system the executive is the Prime

Minister who is also the member and is responsible to the legislature, that

is, he also sits in parliament when it makes laws. The President if any, the

Queen, or the King remains as head of state, a title that is a mere

ceremonial.

Federal or Unitary Constitutions

Federal constitution is found in Independent States that have come

together in a form of Union for certain reasons and interests, but they

22
De Smith, S. Supra p. 5

35
preserve their identity and some measure of independence. United States of

America and Nigeria are good examples. In this constitution there is a

distribution of power between the federal government and the government

of respective States forming the Federation. A State has the power to make

laws that will be applicable in its own territory. It is possible for each State

to have its own constitution etc. A Unitary constitution is a type of

constitution whereby the legislative authority is exercised by one Central

power. This is called a highly developed form of federalism. In Unitary

Constitution the Independent countries or states decide to come together

and surrender their sovereignty and form a union. Uk is a good sample of

unitary constitution (what about Tanzania with its unique type of union

between Tanganyika and Zanzibar where independence of Zanzibar has not

been completely surrendered.

Monarchical or Republican Constitutions

This class of constitution tells us nothing worth knowing about the form or

substance of government; hence, it is no longer a difference of any general

importance. It is possible that one can have an absolute monarch or very

extensive personal discretionary powers (as in Nepal), or one can have very

limited personal powers like in the United Kingdom. It is also possible for one

to have a President who is the head of the State but is not the effective

executive head of Government (Germany is a good example), or one who is

both head of State and head of Government like in the United States of

America.

36
Single Party and other Constitutions
Obviously a constitution under which only one party can legitimately operate

tends to differ from one in which, at least ostensibly (presumably), freedom

of political association is permitted. A constitution for a single-party State

is apt to be of a political manifesto. In such a constitution, lip-service

(insincerity) may still be paid to the basic freedoms of the individual.

However, in some States with single-party constitutions (as in Uganda) there

is more freedom of expression than in States with impeccably liberal

constitutions (as in Zimbabwe). Tanzania, with the 1965 Interim

Constitution, was once a single-party state where by the Party was supreme,

over and above the Organs of the State. However, with the Eighth

Constitutional Amendment Act, 1992, Act No. 4 of 1992 a landmark change

in the history of constitutionalism was experienced in the country. The

amendment introduced a big change in terms of political party style; it

introduced Multi-party system.

Diarchical and other Constitutions

A diarchical constitution can be defined to be as one in which there is a

division of governmental competence between two or more authorities in the

State otherwise than on a regional basis. For instance, law-making powers

may be divided between the Legislature and the Executive, the former

having power to pass laws within a defined field and the latter having an

autonomous and exclusive power, derived directly from the constitution, to

issue decrees, ordinances or regulations within a defined field.23 Such

23
Nicholas (1970) Public Law at p. 251

37
divisions have close likeness with the doctrine of separation of powers that

will be discussed in the next unit of this manual.

Constitutional Structure
Constitutional structure refers to the major features that are found in the

constitution and in how many parts these features are covered. From the

discussion on the meaning of the constitution the common characteristic

that dominated the discussion was the common task that a constitution has

that of establishing the organs of the government and provides them with

powers and limits. Constitutional structure therefore, focuses on the

coverage that is given to these organs and other features like the Bill of

rights, Duties of citizens, Directive principles and Objectives of the

constitution. In this Unit the discussion will base on structure of each organ

and objectives and directive principles of a constitution. It will be realized

that this part will base mainly on the presidential type of a constitution, as it

is the one that applies in Tanzania.

The Executive
The executive arm of the state consists of the President, the Vice-

President, the Prime Minister and the Cabinet. The Public service, prisons,

police and the armed forces fall under the Executive Branch.24

A well democratic constitution that governs a rule of law State will always

establish the three pillars of the state among them the Executive. In the

executive arm of the State is where the President and Vice are established.

The Prime Minister for the countries that have that structure also is found

24
Prof. Shivji, I. G. et al, supra, p. 67

38
in the executive and the council of Ministers, the Cabinet. The coercive

power like police and the prisons fall under the executive as well. However, it

is to be noted that the Executive structure differs from one country to the

other, for example in Kenya there is no Prime Minister, it is only the

President, Vice-President and the Cabinet. The constitution in establishing

the executive will give in details powers and limits of the said arm of the

State. The part of Presidency and the Vice-Presidency provides on how a

president of a country and his Vice are obtained, their qualities and it also

establishes the President to be the Head of the Executive. Presidency

tenure also is provided in this part. This part also covers for the Prime

Minister and the Cabinet on how they are obtained. In the Constitution of

the United Republic of Tanzania of 1977 (as amended from time to time),

the Executive is found under Articles 33-61 respectively.

The LEGISLATURE
The Legislature is the Law making body. The powers and limits of it are

stipulated in a country’s constitution. The main function of this body is to

make laws of a particular country. The Legislature enacts various pieces of

legislations; that are called Acts of Parliament. The Body also, through its

delegated powers, can empower other government organs such as the

executive to make laws to regulate certain conducts in communities. The laws

that are made by the Legislature itself, that is the Acts of Parliament are

known as Principal Legislations and those made by other organs through

39
delegated powers are called Subsidiary Legislations (subordinate legislation).

There are number of reasons that make delegated legislations inevitable in

modern governments some of them include, pressure upon parliamentary

time, technicality of the subject matter, the need for flexibility and state

of emergency.25

The composition of Legislative body must be sated in the constitution as

well. Depending on a country’s system all required officials that make up the

law making body and the procedure for their recruitment must be provided

for in the constitution. In most cases the law making body is made up by the

Members of Parliament who are either elected by people during

parliamentary elections to represent them in parliament for period

stipulated in the constitution, or by being nominated by the President in case

the constitution empowers the President to do so. In some countries like

Tanzania the Parliament is composed of by the President and the Members

of Parliament (National Assembly). In Part three the constitution provides;

Kutakuwa na Bunge la Jamhuri ya Muungano ambalo litakuwa na sehemu mbili,

yaani Rais na Wabunge.26 In Tanzania the Legislature by the name of

Parliament is covered under Articles 62-101 respectively.

The Judiciary
The Judiciary is the law interpreter. Its main function is to interpret the

law without fear or favour. The Judiciary is the custodian of justice

therefore it is empowered by the constitution to dispense justice without

either being interfered with any external force that will prejudice this goal,

25
Wade, E.C.S and Bradley, A.W. Constitutional and Administrative Law, Longman inc, New
York, 1985, pp. 611-612
26
Article 62(1) of the Constitution of the United Republic of Tanzania, 1977.

40
or work o the basis of favours. The Judiciary, when looked at, should

present justice and fairness. The Judicial system of a country is covered in

the constitution. The constitution must states the court system of the

country, the procedures that are used to get judicial officers like Judges

and Magistrates, their tenure in office and their remuneration, also

disciplinary measures against them. Surprisingly, in Tanzania the constitution

covers the High Court and the Court of Appeal only. The courts subordinate

to the High Court, that is, magistrate’s courts are established by an Act of

Parliament. Part five of Constitution of the United Republic of Tanzania

covers the Judiciary.

Conclusion

UNIT 4

Constitutional History and Constitution making in Tanzania

ix. Introduction

x. The First Constitution: The Independence Constitution, 1961

xi. The Second Constitution: The Republican Constitution, 1962

xii. The Third Constitution: The Constitution of the United Republic of

Tanganyika and Zanzibar, 1964

xiii. The Fourth Constitution: Interim Constitution of Tanzania, 1965 (one

party constitution)

xiv. The Fifth Constitution: Constitution of the United Republic of

Tanzania (The Union Constitution), 1977 and its amendments

41
xv. Zanzibar Constitutions

xvi. Conclusions

Introduction
In this unit the discussion will dwell on the constitutional developments and

constitutional making in Tanzania since independence in the year 1961.

Tanzania since independence to date has had five constitutions which are:

The Independence Constitution, 1961, The Republican Constitution, 1962,

The Constitution of the United Republic of Tanganyika and Zanzibar, 1964,

The Interim Constitution of Tanzania, 1965 and The Constitution of the

United Republic of Tanzania, 1977 (as amended from time to time). All these

constitutions will be discussed in details in terms of their structure and

their making. Constitutional making means both amending the existing

constitution and making the new constitution if need be. Basing on the fact

that Tanzania is the union of Tanganyika and Zanzibar, whereby Zanzibar has

her own constitution this part will also visit in depth the constitutional

developments and constitutional making in Zanzibar as well. It is to be noted

that since her independence Zanzibar has had three constitutions.

The Independence Constitution, 1961.

The first constitution of Tanganyika was the Tanganyika Order in Council,

1961. This was referred to as the Independence Constitution, 1961. The

Independence constitution of 1961 was a result of a consensus between

Tanganyika under TANU that was led by Mwalimu J. K. Nyerere, and the

British Colonial government. The intensive discussions between the two sides

42
made the British colonial government to grant Tanganyika her independence

on 9th December, 1961 without bloodshed. The Colonial government through

her Legislature passed the Tanganyika Order in Council that gave Tanganyika

her independence and declared Tanganyika to be a sovereign State. Thus,

the first constitution of Tanganyika was an Act of Parliament. The

constitution made provisions that established the organs of the state that is

the Executive, the Parliament and the Judiciary. It also recognized the

fundamental freedoms (Bill of Rights), citizenship matters were also

included in the Independence constitution. The form of government under

the first constitution was very much based on the Westminster model with a

sovereign parliament, multiparty democracy, a prime minister and the

Governor General as head of state representing Her Majesty the Queen of

England.27

The Executive

The executive was made up by the Governor General, Prime Minister, the

Cabinet (Ministers) and the Parliamentary secretaries.

The Governor General

The Governor General was Her Majesty appointee and held the office at her

pleasure. The office of Governor General was established via Article 11 of

the constitution. The Governor General represented Her Majesty in

Tanganyika and exercised all powers vested to him on her behalf. The

Governor was also vested with powers to make appointments that constitute

various offices and powers to terminate such appointments but in

accordance with the provisions of the constitution. This power was vested to

him via Article 54 of the constitution. The Governor also had powers to

27
Prof. Shivji, I. G. et al, supra, pp. 47-48.

43
assent to Bills that were passed by the Parliament. No Bill became law unless

it was assented to and signed by the Governor General on behalf of Her

Majesty. The Governor had powers to appoint the Prime Minister from

among the members of National Assembly. The Governor was enjoying

prerogative of mercy vested to him via Article 55 of the independence

constitution, however in exercising this power the Governor had to seek

advice from the Minister designated in that behalf.

Prime Minister

The Prime Minister was the Governor General appointee from among the

members of the National Assembly subject to the majority support of the

members. Therefore the Prime Minister had to come from among the

members of the Assembly and in case he ceased to be the member of the

National Assembly then he is disqualified from holding the post of a Prime

Minister. Article 42 of the constitution provides for the post of Prime

Minister and circumstances where the office can fall vacant.

The Cabinet

The power to establish the cabinet apart from the Prime Minister was

vested with the Parliament, however the Governor General on advice by the

Prime Minister and subject to the provisions of any Act of Parliament could

establish offices of Ministers, this power was conferred to him via Article

42(2) of the constitution. The Ministers were appointed from among

members of the National Assembly and Ministers together with the Prime

Minister formed the Cabinet of Ministers. The Cabinet was responsible to

the Parliament with the major function to advice the Governor General.

44
Parliamentary Secretaries

Parliamentary Secretaries were appointed by the Governor General from

among members of the National Assembly subject o the advice given to him

by the Prime Minister. The Parliamentary Secretaries had the duty to assist

Ministers in the performance of their duties.

Bill of Rights

The constitution recognized the basic human rights via the Bill of Rights

that was found in the Preamble to the constitution. Thus, due to the fact

preamble is not part of the constitution, the Bill of rights were never

included in the constitution. The inclusion was resisted by TANU during the

discussions that brought about the independence constitution. TANU was

reluctant to have the Bill of rights entrenched to the constitution due to

various reasons:

a) That during the constitutional talks leading to independence

constitution TANU leadership ingeniously pointed out as a fact

that the absence of a Bill of Rights in the unwritten

constitution did not erode the rule of law in Britain. Therefore,

it was useless exercise to try to force the same on the people

of Tanganyika.

b) The popular support enjoyed by TANU during the constitutional

conferences made it easier for TANU to have its way with little

resistance. In the absence of a strong opposition political party,

there was none to overcome TANU’s position that the Bill

should be omitted from the constitution.

c) In Tanzania the urge for inclusion of a Bill of Rights in the

constitution did not have much backing as was the case in some

45
 countries e.g. Kenya. In Kenya the white settler community with

massive property acted as a catalyst for the demand of a Bill of

Rights.

d) During the constitutional negotiations the TANU leadership

windhooked the colonialists by presenting TANU as a nationalist

movement that endeavoured to stick to legalistic formation and

deliberately avoid unlawful agitation. Therefore the fear that

TANU and its leaders would in future turn into an autocratic

party was unthinkable.28

Therefore, the Bill of Rights was finally not included in the independence

constitution, it only got recognized in the preamble and because the

preamble was not part to constitution it became difficult to enforce the

violation of the basic human rights. Meanwhile, it remained to be the idea of

the newly independent Tanganyika under TANU government that the demand

for inclusion of Bill of Rights by the British Colonial government did not

target to safeguard the interests and rights of indigenous Tanganyikans but

rather to protect themselves from actions that could probably be taken

against them due mal-violation of human rights that they did during their

rule. They feared the new government so they wanted to put in place, before

they leave, conducive and safe environment that assured them that they

were not going to be blamed and prosecuted against violations of human

rights in colonial Tanganyika.

28
Mtaki, C. K. Constitutions and Legal Systems of East Africa, Part Two, pp. 168-169.

46
The Republican Constitution, 1962.
The Republic Constitution of 1962 replaced the Independence Constitution

of 1961 following the publication of the White Paper, Government Paper No.

1 of 1962. The aim of the White Paper was to collect views from the public

on the TANU government to enact the Republic Constitution that will

Presidential in nature and make the Executive that is manned by the

President. This was considered to be a big change in the history of

constitutional making in Tanganyika and therefore the opinion of the public

was of highly importance. After the discussions the National Assembly

passed An Act of Parliament, The Constituent Assembly Act, Act No. 66 of

1962 that converted the National Assembly into a Constituent Assembly.

The Act mandated the Constituent Assembly with the power to enact a new

constitution. A Constituent Assembly is a special body usually created

through election for the purpose of adopting a constitution. Once it

completes that task it is dissolved. In constitutional theory the Constituent

Assembly is considered a higher body than the Parliament. This is because

the Parliament itself has been created by the Constitution which in turn was

made by the Constituent Assembly. The powers of the Parliament are thus

limited. A Constituent Assembly is considered a peoples’ instrument to make

a constitution.29 Therefore the Constituent Assembly adopted the new

constitution whose full citation is The Constitution of Tanganyika, 1962

Constitutional Act No. 1 of 1962. The Constitution of Tanganyika established

the Executive under the President, The Legislature and the Judiciary. As it

was with the Independence Constitution, 1961 the Constitution of

29
Prof. Shivji, I. G. et al, supra, p. 54.

47
Tanganyika did not include and recognize the basic human rights, instead the

President proposed the creation of a National Ethic based on moral and

political obligation with the idea of restraining the Executive from abuse and

excessive use of its power. However it is obvious that since the National

Ethic was not the Bill of right and because it based on the moral and political

directives that the Executive had to abide to, did and could not in any way

protect human rights in real sense.

The structure of the Constitution of Tanganyika, 1962.

The Executive

The powers of the Executive were vested with the President who was the

head of the executive via Article 1 of the Constitution that declared

Tanganyika to be the Sovereign Republic. The effect of the declaration was

that executive powers that were once under the Crown were transferred to

the Republic under the President of Tanganyika. The president via the

Constitution assumed powers as the head of State and head of the

government, commander-in-chief of the army and part of the parliament. By

being part of the parliament the President had crucial power of signing Bills

that were passed the National Assembly to be Laws. Bills only become laws

once assented to and signed by the President of the Republic. The President

by being part of the Parliament assumed powers to address the National

Assembly. Shivji writes that, the form of government under the 1962

Constitution was thus a kind of a mix between a parliamentary and

presidential system, though much more titled towards the presidential

system. In many respects, the presidential system that was adopted was

closer to the colonial arrangement where no law passed by the Legislative

48
Council could become law without the assent of the Governor and the

Governor commanded all power o behalf of the colonial state. The difference

of course was that whereas the colonial Legislative Council was composed

largely of appointed members, the National Assembly was an elected body.

The Republican Constitution set the precedent for the concentration of

power in the presidency, which was later to become the hallmark of

subsequent constitutions.30 The Vice-president and the Cabinet also made

the executive. The office of Vice- President was constitutionally established

via Article 11 while the President via Sub-article 2 of the Article 11

established offices of Ministers, however both the Vice-President and the

Ministers were to be the members of the National Assembly for them to be

eligible to be appointed by the president on their respective offices. For the

Vice- President there was an additional qualification and that was he was to

be an elected member of the Parliament.

The Legislature

Two parts, the President and the National Assembly, made the Legislature,

(the Parliament) whose main task was to make laws as it was in the

Independence Constitution. The laws were made in two procedures, first

the Bills were presented, discussed and upon the majority votes passed by

the National Assembly. Second the passed Bills were presented to President

for assenting and signing them. Once this procedure is complete the Bills

became laws. The Parliament retained powers to amend various laws including

the constitution. The Parliament is said to be in its Legislative capacity if its

sits to make ordinary laws, and it is in constituent capacity if it amends the

constitution. The Constitution provided on how the National Assembly was

30
Ibid, pp 48-49.

49
obtained and how it was dissolved. The National Assembly was an elected

body and could be dissolve in three scenarios:

a) Pursuant to section 34(4) of the Constitution, that is, if the President

dissolves the Parliament before assenting to a Bill sent to him for the

second time within six months of its being returned to the National

Assembly,

b) Pursuant to section 44(2)- President could at any time dissolve the

Parliament. He was not bound to give reasons.

c) Pursuant to section 44(4)- when its life of 5 years expired.31

The Judiciary

The Constitution of the United Republic of Tanganyika and

Zanzibar, 1964.
This was the third Constitution, which was the result of the Union between

Tanganyika and Zanzibar on 26th April 1964. The union was born after the

signing of the Articles of Union to unite two countries by the President

Julius Kambarage Nyerere on behalf of the people of Tanganyika and

President Abeid Amani Karume on behalf of the people of Zanzibar. The

Articles of Union signed by two Presidents for their respective States was a

treaty to enter into union. The Parliament of Tanganyika by an Act of

Parliament called the Union of Tanganyika and Zanzibar Act, 1964, ratified

the Articles of Union. (No. 22 of 1964) There is uncertainty as to whether

the Acts of Union were ratified by the Revolutionary Council of Zanzibar

31
Mtaki, C. K. Constitutions and Legal Systems of East Africa, Part Two, p. 51

50
because the Act was not published in the Government Gazette of Zanzibar,

it is just said that the Acts were ratified by the Revolutionary Council of

Zanzibar under the Union of Tanganyika and Zanzibar, 1964 (see the book on

Constitutional and Legal systems of Tanzania by Professor Shivji and others

for more discussion on this aspect of uncertainty on part of Zanzibar).

However in law whether the treaty is ratified or not it binds the subjects

who signed it for that matter the people of Zanzibar are bound by the Acts

of Union as it is the fact to the colleagues of Tanganyika.

Under the authority given to him by the Acts of Union (Articles of Union),

the President of Tanzania issued a Decree entitled The Interim Constitution

Decree, 1964(Government Notice No. 246 of 1/5/64) modifying the

Constitution of the Republic of Tanganyika to make provision for the Union.

The new, modified constitution was called the Interim Constitution of the

United Republic of Tanganyika and Zanzibar.32

The Interim Constitution of Tanzania, 1965

The Interim Constitution of Tanzania of 1965 was the fourth constitution in

the history of constitution making in Tanzania. It is highly referred to as

One Party Constitution due to the fact that it established a one party state
via Article 3 which stated “There shall be one political party in Tanzania”

and “until the union of Tanganyika African National Union with the Afro-
Shirazi Party the Party shall, in and for Tanganyika, be the Tanganyika
African National Union and, in and for Zanzibar be the Afro-Shirazi
Party.” The Interim Constitution was enacted by the Parliament just like

other Acts of Parliament, it lacked peoples’ mandate. The Constituent

32
Prof. Shivji, I. G. et al, supra, p. 52.

51
Assembly that is required to be set to repeal and replace the existing

constitution with the new one was never established. It is the Constituent

Assembly that represents the people of Tanzania in constitution making, but

like other constitutions the same was not there. It is right to argue that

people were not represented in the making of the 1965 Constitution, but

rather the Constitution was imposed to them. The constitution was more of

political interests other than peoples’ will. This was evidenced by the speech

of Mwalimu Nyerere when addressing the Commission he set that was

mandated to collect peoples’ view on the type of one party-state that

Tanzania should have, he said, “In order to avoid misunderstanding, I think I

should emphasize that it is not the task of the Commission to consider

whether Tanganyika should be a one-party State. The decision has already
been taken. Their task is to say what kind of one-party State we should have
in the context of our own national ethic and in accordance with the principles
I have instructed the Commission to observe”33. Professor Shivji states in
Towards a New Constitution Order:
“The making of the 1965, Constitution again, is another example of lack of
constitutionalism and participation of the people. This time around the
Constitution was not even adopted by the constituent assembly, not even one
in its reincarnation of the pre-existing national assembly. Instead, the 1965
constitution was enacted as an ordinary Act of Parliament presumably in the
constituent capacity of the Parliament. This is equivalent of saying that an
amendment of the constitution repealed the constitution and established a
new constitution in its place.”

33
The Report of the Presidential Commission on the Establishment of a Democratic One-
Party State, Dar es Salaam: Government Printer, 1968, p.2

52
The Interim Constitution survived for 12 years until 1977 the time it was

repealed and replaced by the 1977 Constitution which is considered to be

the permanent constitution of Tanzania. During its life the Interim

Constitution passed through three types of amendments. Shivji writes, one

type was that which increased the number of union matters. Another type

was to increase the powers of the President on the one hand, and establish

the supremacy of the ruling party, on the other. The third type was to make

the party and party organs supreme over the National Assembly while at the

same time reduce the proportion of directly elected members in the

National Assembly by bringing in nominated members.34 With the 1965

Constitution, it was the time of “Party Supremacy”. Having established a

one-party rule, the next point on the agenda of the party was to strive for

the supremacy of this party. That is, to make the party the highest

authority in the decision making in the country.35 In one-party democracy

the party became supreme, the then Vice-President Rashid Mfaume Kawawa,

once said that” TANU and ASP are the originators of this Sate. The two

parties are policy makers while the duty of the government is to implement
the policies. We have assisted the government with parliament, law and
finance to facilitate such implementation… We are governed mentally by our
colonial past in believing that the government is supreme. The German and
British impact is still with us. We need to bring about our mental revolution
to remedy this situation… In one-party democracy the party is supreme all
the way.”36”The Party is supreme all the way” and it was vivid where by the

34
Prof. Shivji, I. G. et al, supra, p. 53
35
Helen Kijo-Bisimba and Chris Maina Peter, Justice and Rule of Law in Tanzania: Selected
Judgements and Writings of Justice James L. Mwalusanya and Commentaries, p.6
36
Parliamentary Debates (Hansard) 1st October, 1968

53
constitution of TANU was entrenched in the Constitution via Article 3(4) as

a schedule to the constitution and the courts of law justified this

unexplainable action by the TANU officials (See the cases of Thabit

Ngaka V The Regional Fisheries Officer (1973) LRT No.24 and Hatimali
Adamji V East African Posts and Telecommunications Corporation (1973)
LRT No. 6). Yet there were no reasons as to why the constitution of the
ASP was never made part of the Interim Constitution of 1965. With one-

party democracy it was believed that the foundations of democracy would be

firmer than in multi-party democracy. The President of TANU when

addressing TANU Conference in 1963 expressed this idea, he said:

“Where there is one party, and that is identified with the nation as a whole,
the foundations of democracy are firmer than can ever be where you have
two or more parties, each representing only a section of the community”.37
However, Mwalimu completely changed this ideology by engineering and

insisted for the ruling party to accept the move for the need of multi-party

democracy in Tanzania in 1990s’.

The Constitution of the United Republic of Tanzania, 1977

The Interim Constitution of 1965 declared under Article 3 that, “There

shall be one political party in Tanzania” and “until the union of

Tanganyika African National Union with the Afro-Shirazi Party the

Party shall be, in and for Tanganyika, be the Tanganyika African

National Union and, in and for Zanzibar be the Afro-Shirazi Party.”

The provision of Article 3 above had a word of promise to the people of

Tanganyika and Zanzibar that their leaders are determined towards uniting

37
Nyerere, Julius, K., Freedom and Unity: A Selection from Writings and Speeches 1952-
1965, Dar es Salaam: Oxford University Press, 1966, p. 196

54
their two political parties into one. This union was finally achieved on 5th

February 1977. TANU and ASP united together and Chama Cha Mapinduzi

was born. The union of two parties had a great impact on the history of

constitution making in Tanzania. There arose a need to adopt a constitution

that would reflect the one country TANZANIA and the need to have a

permanent constitution for the United Republic of Tanzania. Acting under

the powers vested to him via the Articles and Acts of Union the President

through Government Notice published on 25th March 1977 appointed the

Constitutional Commission that had a task to make a proposal for new

constitution before the Constituent Assembly. Actually, the members of the

National Executive Committee of the Party, who made the Constitution of

Chama Cha Mapinduzi (CCM), composed the Constitutional Commission. Again

under the powers vested to him by the Articles and Acts of Union the

President through Government Notice of 16th March 1977 that was published

on 25th March 1977 appointed the Constituent Assembly that had one task

to enact a new constitution basing on the proposal presented to it by the

Constitutional Commission. Finally, after the discussions in the Constituent

Assembly a new constitution for United Republic of Tanzania was adopted.

The new constitution was called The Constitution of the United Republic of

Tanzania, 1977. The Interim constitution survived for twelve good years, and

this long survival invites the questions as “to how long interim is interim”?

For a long period of about 12 years Tanganyikans and Zanzibaris were

governed by the interim constitution though in reality it suggests those

twelve years were more than interim. Opining on the 1977 Constitution

Professors Shivji, Fimbo and Dr. Mvungi say:

55
“Thus was born the permanent constitution of Tanzania. There was no public

consultation or debate, the provisions of the Articles of Union were at best

only technically complied with-its spirit and necessary intention were

mutilated. The discussion in the Party was behind closed doors in the

National Executive Committee. In any case the National Executive

Committee of the party was not supposed to be the forum to consider the

constitutional proposals”.

The Constitution of the United Republic of Tanzania, 1977 came into effect

on 26th April 1977, to date the Constitution has passed through fourteen

amendments, all these amendments will be discussed accordingly in coming

discussions in this unit, there will be also the discussion on the structure of

the constitution as summarized hereunder.

The Constitution of the United Republic of Tanzania is divided into ten

chapters that are preceded by the Preamble to the Constitution. These ten

chapters provide for the structure of the Constitution. Part one of chapter

one declares Tanzania to be one State that is Sovereign United Republic and

declares its territory. It also provides for political parties, the people and

he policy of Socialism and Self-reliance. Part two states the fundamental

objectives and directive principles of State policy while part three

recognizes basic rights and states the duties of citizens.

Chapter two which establishes the Executive of Tanzania is divided in three

parts. Part one is on the President, part two establishes the office of the

Vice- President while the office of the Prime Minister, the Cabinet and the

government are covered under the last part, that is, part three.

Chapter three establishes the Legislature of the United Republic of

Tanzania. The Legislature is covered in three parts as well which are; The

56
Parliament in part one, part two is on Members, Constituencies and election

of Members. The procedure, powers and privileges of Parliament are

enshrined in part three of this chapter.

Chapter four which is also in three parts covers the Revolutionary

Government of Zanzibar, the Zanzibar Revolutionary Council and the House

of Representatives of Zanzibar.

Chapter five dwells on the High Court of the United Republic of Tanzania,

the Judicial Service Commission for Mainland Tanzania, the High Court of

Zanzibar, the Court of Appeal of the United Republic and the special

Constitutional Court of the United Republic. Chapter five is divided into six

parts.

Chapter six establishes the Commission for Human Rights and Good

Governance and the Public Leaders Ethics Secretariat, these are detailed in

two parts.

Provisions regarding the finances of the United Republic are provided for

and established under chapter seven.

Chapter eight is on the Local Government Authorities, while chapter nine

provides for Armed Forces.

Chapter ten is the Miscellaneous Provisions chapter.

The Structure of the Union Constitution.

As it has been stated in the summary of the structure of the Constitution of

the United Republic of Tanzania, that the Constitution is divided into ten

chapters that provide for various provisions that deal with the structure and

other main features like the fundamental Objectives, Directive Principles of

the State policy and the Basic Rights and Duties. In this part the thorough

57
discussion of all chapters is made so as to help the reader understand the

Constitution both in the structure and main features that it provides and

deal with.

CHAPTER ONE

This chapter proclaims Tanzania to be one State that is a sovereign United

Republic. Article 2(1) states the territory of the United Republic, which

consists the whole of the area of Mainland Tanzania and the whole of the

area of Tanzania Zanzibar that also includes the territorial waters.

Declaration of Multi party State is made via Article 3(1) “The United
Republic is a democratic and socialist state which adheres to multi-party
democracy”. The democratic principle of separation of powers is entrenched
in the Constitution under Article 4. The Article vests executive powers in

two organs that is, the Government of the United Republic and the

Revolutionary Government of Tanzania Zanzibar, Judicial powers are vested

with the Judiciary of the United Republic and the Judiciary of Tanzania

Zanzibar while the Legislative and supervisory powers over public affairs are

vested with the Parliament of the United Republic and the House of

Representatives of Zanzibar. The right, to vote, for every citizen of the

United republic who has attained eighteen years of age is recognized in this

chapter through Article 5(1), but the enjoyment of this right is subject to

the provisions of subarticle (2) that empowers the Parliament to enact a law

that imposes conditions which restrict a citizen from exercising the right to

vote by reason of being a citizen of another state, being mentally infirm,

being convicted of certain specified criminal offences, omission or failure to

prove or to produce evidence as to age, citizenship or registration as a voter.

58
Apart from these conditions every citizen of Tanzania who is eighteen years

of age is eligible to vote in any public election held in Tanzania.

Fundamental Objectives and Directive Principles of State

Policy
Part two that deals with the Fundamental Objectives and Directive

Principles of State policy puts responsibility to the Government of the

United Republic and the Government of Zanzibar, Local Authorities and any

person who exercises power or authority on behalf of either Government to

take cognizance of, observe and apply the provisions that are made therein

(part two). Subarticle (2) of Article 7 declares that provisions on

fundamental Objectives and Directive Principles of State policy are not

enforceable by the courts of law. The Constitution denies courts of law to

entertain any matter with regard to the provisions of part two. The courts

are declared to lack jurisdiction and to be incompetent to determine the

question whether or not any action or omission by any person or any court or

any law or judgment complies with the provisions of part two of chapter one.

Article 8(1) of the Constitution covers Fundamental Objectives and

Directive Principles of State Policy. The Article shows the relationship

between the Government and the people. Among the Directive Principles that

are stated in Article 8(1) includes Sovereignty of the people by declaring

that sovereignty resides in the people and it is from the people that the

Government through the Constitution shall derive its power and authority. It

is therefore a constitutional directive that the sovereignty resides with the

people and through that the Government has to derive its power and

authority from the people through the Constitution. The power and authority

59
of Government if derived outside the Constitution then they are not of the

people hence unconstitutional with no blessings of the people at all. The same

provision declares the Supremacy of the Constitution by directing that it is

through the constitution on behalf of the people the government shall derive

its power and authority from. The Government is, under Article 9, directed

to ensure respect of human dignity and human rights, upholding the laws of

the land and ensure that they are enforced accordingly (emphasis is mine).

The State is also directed to ensure non-exploitation of one person by

another. Another directive covered is equality between men and women in all

opportunities available for them without regard to their colour, tribe,

religion or station in life. Accountability of Government to the people is

another directive principle stated in the constitution under Article 8. The

State must also put in place policies that guarantee the rule of law and

democratic participation of the people in decision-making. Observance to the

principle of Separation of powers should be guaranteed as well.

Discrimination and all forms of injustice intimidation, corruption, oppression

or favouritism are to be eradicated in the country. The State and its organs

should ensure that such practices that are mentioned in paragraph (h) of

Article 9 do not find room in the country.

The Fundamental Objectives include the welfare of the people. It is stated

in Article 8(1) (b) that the primary objective of the Government shall be the

welfare of the people. The State should make sure that public affairs are

conducted in such a way as to ensure that the national resources and

heritage are harnessed, preserved and applied for the common good of all

people (emphasis is mine). Resources and wealth of the country are to be

utilized for the betterment of the people. It is the fundamental objective

60
that national economy is planned and promoted in a balanced and integrated

manner and that the economic activities are not conducted in a manner

capable of resulting in the concentration of wealth or the major means of

production in the hands of a few individuals. With this objective the State is

to ensure that the running of a country in terms of policies and economic

activities are not handled by few individuals and results in making these few

individuals rich leaving the majority of the people in extreme poverty

situation. The objective is to avoid the nation that is in stratification by

having classes of haves and have not. Policies and programmes of the State

should address positively and in a tangible manner the use of national

resources by placing the emphasis on the development of the people and in

particular is geared towards the eradication of poverty, ignorance and

disease. The three phenomena were declared and are still taken to be the

biggest enemies of the country towards economic development. The State is

to make appropriate provisions for the realization of a person’s right to

work, to self education and social welfare at times of old age, sickness or

disability and in other cases of incapacity, also the to make provisions that

ensure every person earn livelihood without prejudice to the rights specified

in Article 11.

Basic Rights and Duties

In Tanzania since Independence fundamental freedoms were recognized in

the Preamble to the constitutions that existed before the 1977 Constitution

through the fifth amendments in 1984. For the whole of that period it was

difficult to enforce the violation oh human rights since they were not law

basing on the fact that preamble to the constitution is not part of the

constitution. This was evidenced in the case of Hatimali Adamji V East

61
African Posts and Telecommunications Corporation38 where by the court
held that, the preamble to a constitution does not in law constitute part of

the constitution and so does not form part of the law of the land. In this
case the complainant who was of Asian origin was challenging the retirement

notice issued to him during the process of Africanizing the Corporation to

which he was working with. He challenged the retirement that was violating

right to non-discrimination recognized by the Constitution. The right to non-

discrimination was recognized in the preamble.

However, following the pressure from the people and various rights groups

bill of rights was passed in the year 1984 and introduced in the Constitution

of the United Republic for the first time.

Right to life

The Constitution recognizes the right to life through Article 14 by providing

that “Every person has the right to live and to the protection of his life by

the society in accordance with law” With the right to life it is to be

understood that this is the most important right among the recognized

rights, all other rights follow when life is guaranteed, with no life other

rights cease. Right to life is the custodian of all other rights. Right to life if

not guaranteed other rights are meaningless. Therefore, no one is entitled

to take away the life of another, but rather the Article recognizes

protection of one’s life from the society in he/she leaves in accordance with

law. Writing on right to life Prof. Chris Peter39 states that, the right to life

is the most important of all human rights. There is no doubt that if there

38
(1973) LRT No. 6
39
Helen Kijo-Bisimba and Chris Maina Peter, Supra, p. 37

62
were no right to life, there would be no point in having any other human
right. This right can therefore legitimately be referred to as the mother of
all other rights. Article 14 that recognizes right to life was interpreted in
the case of Republic V Mbushuu and another40 where by Justice

Mwalusanya held that,” the death penalty is a cruel, inhuman and degrading

punishment; and that it offends the right to dignity in the course of

executing the sentence; the death penalty infringes the right to life; the
death penalty is not in public interest; thus it is unconstitutional and hence
null and void; in the place of death the punishment of life imprisonment can
serve the purpose” . However on appeal the Court of Appeal hesitated to
decide that the death penalty is unconstitutional. Court of Appeal held that

death penalty is for public interest. With the decision of court of Appeal

the death penalty is still enforced in Tanzania as punishment to those who

are found guilty of murder. The highest judicial body in Tanzania missed in,

its history, an opportunity to discourage the applicability of brutal penalty

of death. By having death penalty death is justified, and right to life is

taken away, perhaps we have the penalty due to the thoughts of the people

that whoever kills and found guilty of murder must also die. This holds no

water basing on the fact that among the aim of punishments is deterrence.

Deterrence character of a punishment should deter potential offenders on

one hand from committing crimes and the guilty person on the other from

committing offences again. Basing on this argument death penalty does not

deter the guilty person. Again the function of punishment to reform the

40
High Court of Tanzania at Dodoma, Original Jurisdiction, Criminal Sessions Case No. 44 of
1991. Prof. Peter reproduces the case in; Human Rights in Tanzania: Selected Cases and
Materials, pp. 42-46 and in; Justice and Rule of Law in Tanzania: Selected Judgments and
Writings of Justice James L. Mwalusanya and Commentaries, pp. 40-46

63
guilty person does not exist as long as the guilty person will be killed and

therefore lack an opportunity to learn the bad of his action. By death

penalty the guilty person is not reformed. The challenge today, as far as

death penalty is concerned, lies with individuals, rights groups and to a large

extent the Commission for Human Rights in Tanzania to look for and advise

the government on an appropriate alternative punishment for people found

guilty of murder. The most appropriate and best penalty for murderers could

be life imprisonment. (See Human Rights in Tanzania by Prof. Peter and

Justice and Rule of Law in Tanzania by Prof. Peter and Helen Kijo-Bisimba
for more discussion on death penalty)
Right to equality

“All human beings are born free, and are all equal”.41 “ Every person is

entitled to recognition and respect for his dignity”.42

The words of Article 12 guarantee equality of human beings basing on the

fact that human rights are derived directly or indirectly from the very

nature of man. By this fact it may be argued that by virtue of being human,

one inheres all those attributes, which are inherent in human personality,

and natural rights being one among those attributes are inherited naturally.

Being a human being is the only condition necessary for enjoying natural

basic rights, and this condition lays down the equalitarian principle. Carlos

Santiago Nino43 argues that, “if the only relevant condition for enjoying

certain rights is being human, and if this property does not admit of

degrees, there cannot be differences of degree in the extent to which the

41
Article 12(1) of the Constitution of the United Republic of Tanzania, 1977.
42
Article 12(2) of the Constitution of the United Republic of Tanzania, 1977.

43
Carlos Santiago Nino, The Ethics of Human Rights, Clarindon Press, Oxford, 1991 p. 34

64
rights in question are held; this is, all human beings have them to the same

degree”

Equality before the law

Equality before the law is recognized under Article 13 of the Constitution.

Equality before the law calls for equal treatment and protection of all

persons before the law without discrimination. Equality before the law

demands for the protection of civic rights, duties and interests of every

person by the courts of law or other state agencies established by or under

the law. Prof. Peter and Helen44 write, “ Equality before the law means all

classes of people in a civil society should be treated alike by the law itself

and before all law enforcement bodies and agencies which are created by

the law… Equality before the law has also been taken to be a rule requiring

all functions of the State which are likely to affect the basic rights of the

people to be subjected equally before the law”.

The Constitution of the United Republic of Tanzania, 1977 through Article

13 that recognizes equality before the law, prohibits any form of

discrimination.45 The same Article defines discrimination to mean, “to

satisfy the needs, rights or other requirements of different persons on

the basis of their nationality, tribe, place of origin, political opinion,

colour, religion or station in life such that certain categories of people

are regarded as weak or inferior and are subjected to restrictions or

conditions whereas persons of other categories are treated differently

or are accorded opportunities or advantage outside the specified

conditions or the prescribed necessary qualifications”. These words

44
Helen Kijo-Bisimba and Chris Maina Peter, Supra, p. 379
45
Article 13(4)

65
denote that there is discrimination whenever persons’ rights or other

requirements are satisfied and recognized on the basis of colour, tribe,

political opinion, place of origin, religion or station in life, gender etc. that is

to say it is racial discrimination if one is regarded weak or inferior simply

because he/she is black. All the same it is discrimination if a person is

regarded valueless on the basis of belonging to a particular, probably, a small

tribe in the country, being a member of a certain, presumably, an opposition

political party, being of weak financial position, by being physically

challenged or even by being of a certain gender, e.g. by being a female

person. In Tanzania gender discrimination has been for a long time the most

notable form of discrimination. Prof. Peter46 says, “this state of affairs is

not new. It is old and has a long history and historical and social-economic

basis”. According to Eze, the inequalities and marginalisation of women in

various societies, and particularly in Africa, is reinforced by two variables.

These are the capitalist socio-economic organization; and the various

customs which have been further reinforced by colonial and religious

influences.47 Taking note from the thought of Eze it is obvious that the

Capitalist socio-economic system and the customs especially customary law

for decades have left women victims of the unjustified gap between men and

women. The colonial governments for example, prohibited, in many colonies

the recruitment of women in productive sectors and in most instances the

colonial masters required local leaders to make sure that women in colonies

did not leave their households for their husbands in places where they were

46
Peter, C.M. Human Rights in Tanzania: Selected Cases and Materials, p. 379
47
Remarks by Eze Osita are reproduced by Prof. Peter in his book Human Rights in Tanzania
at p. 379

66
being recruited to work. Women are marginalized by the said variables in

the political, social and economic spheres. Patricia McFadden48 writes,

“Where the state existed as a viable and fully developed entity prior to
colonization, most women were excluded from political engagement because
they were not considered citizens or even adults within such communities.
While women of the ruling classes engaged in some limited political agency
vis a vis the state and the arena of public life, the majority of African
women were systematically excluded from both political and civic
engagement. The colonial state continued and or formalized this particular
exclusionary practice by consciously colluding with black men of all classes in
the continued exclusion and marginalisation of African women from the
arenas of public engagement, particularly in relation to issues of rights and
mobility. The history of the continent is replete with evidence of this
collusion, the most blatant and intractable being the legitimization of
essentially patriarchal feudal privilege for men into formalized ‘laws’-the so-
called customary law so well loved by both anthropologists and militant black
nationalist. In the purview of the colonial administrator, black women
existed only as chattels of men- both white and black-and a direct
relationship with the state, let alone one instruments of governance and
entitlement such as constitutions, could not even be imagined…” The two
phenomena have all the same guaranteed no opportunity for women to own

major means of production such as land, which is the potential source of

income and living in many African Countries including Tanzania. Women have

48
Patricia McFadden “Constitutional Dimensions of Rights: Ethnicity, Gender and Citizenship
in Africa” Constitutionalism & Transition: African and Eastern European Perspectives, (eds)
J. Oloka-Onyango and Chris Maina Peter, pp.72-73

67
always been looked down and in many communities through customary laws

they are valueless only regarded as properties of men. However, the

Judiciary in Tanzania deserves a credit for standing bold in upholding the

womens’ rights even before the inclusion of the bill of rights in the

Constitution. (See the cases of Ndewawiosia Ndeamtzo (1968) H.C.D no.

127,Peter Byabato Vs Pastory Rugaimukamu (unreported see it in Prof.

Peter’s book) Holaria Pastory etc) These cases mark a revolution against

gender discrimination and marginalisation in Tanzania. However, though the

court decisions in these cases reveal the clear blue sky and the shining stars

towards recognition of women rights, yet one should not look at the clear

blue sky and think that all is well, all is not well, all is not well and there is a

long way to go. There is a high demand to make the members of the

communities aware that women rights are human rights, and that the fight

and struggle for women rights is not the fight against men but rather the

fight against the system, male dominated system that for centuries have

been built by the capitalist socio-economic organization and our customs like

how Eze puts it. The promising thing is, Tanzania with the bill of rights in

the Constitution practices a bottom-up approach whereby women rights as

one among the best values of society are reflected in the Constitution, this

is to be used as the starting and point of reference in the struggle for

respect and protection of women rights. The big challenge is to make the

rights that are recognized in the Constitution a reality in women’s lives. It is

not enough to say that the Constitution recognizes women rights; rather the

existence and recognition of these rights need to be tested in the real and

everyday life of women themselves. The rights need to be brought to the

real life of women from the Constitution. However, there are some areas

68
where the tangible changes are a little bit experienced by the people. These

areas include access to key decision making bodies such as Parliament,

Cabinet and Government. In the Parliament for example, following Article

66-(1) (b) that provides for among members of Parliament women members,

whose number should not be less than 30 percent of the members mentioned

in Article 66 (a) (c) (d) and (f) who have the qualities specified in Article 67,

there are now …women members. Women members are to be elected by their

political parties in accordance with the requirements of Article 78. The

Judiciary especially the High Court and the Court of Appeal whereby judges

are Presidential appointees the number of female judges has reached…in this

year.

Right to personal freedom

Article 15 of the Constitution on the right to personal freedom provides

that no person shall be arrested, imprisoned, confined, detained, deported

or otherwise be deprived of his freedom save only under circumstances and

in procedures prescribed by law or in the execution of a judgment, order or

a sentence given or passed by the court following a decision in a legal

proceeding or in a conviction for a criminal offence. The Article provides for

protection against arbitrary arrest, imprisonment, confinement, detention

and deportation except where any of the said acts is done by basing on

circumstances and procedures prescribed by law. Article 15 implies two

things firstly; a person can be deprived of liberty only in accordance with

the circumstances and procedures prescribed by law. For the procedure as

required in Article 15 to hold water and satisfy the requirement of the

Article needs to be fair, just and reasonable. The procedure should not be

arbitrary, oppressive or fanciful (far-fetched/imaginary), if so then it will

69
be useless to have the protection guaranteed in Article 15. In order for the

procedure to be just, fair and reasonable it has to conform to the rules of

natural justice that base on fairness and justice; these include (i) the rule

against bias, (ii) right to be heard and (iii) right to know reasons for the

decision.

(i) The Rule Against Bias: no man is to be a judge in his own cause

The rule against bias, which is expressed in the maxim nemo judex in causa

sua, requires a man not to be a judge in his own cause but rather to be an

impartial judge when deciding the matter before him. The essence of a fair

judicial decision is that it shall have been made by an impartial judge.49The

circumstances that may lead to the rule against bias were stated in the case

of R v Rand first, where the judge has any direct pecuniary interest,

however small, in the subject matter of inquiry. However, there is an

exception to this rule and the exception is a judge can not be disqualified

from acting and deciding the case if the parties are made fully aware of his

interest in the proceedings and clearly waive their right to object to his

participation, or a special statutory dispensation empowers the judge to

preside over the mater, or a judge has to sit as a matter of necessity where

other judges (rarely) are affected by disqualifying interest Secondly,

where, apart from direct pecuniary interest, there is likelihood that the

judge would have a bias in favour of one of the parties. According to Prof.

Peter50 what is vital and central in this situation is that the judge should not

49
Wade, E.C.S and Bradley, A.W. Constitutional and Administrative Law, Longman inc, New
York, 1985, p. 642
50
Peter, C.M. Human Rights in Tanzania: Selected Cases and Materials, p. 427

70
hear evidence of one side behind the back of the other. The risk of not

obeying to the rule was well elaborated by Lord Denning, M.R (as he then

was) in the case of Kanda v. Government of the Federation of Malaya51 “no

one who has lost a case will believe he has been fairly treated if the other
side has had access to the judge without his knowing”.

(ii) The right to be heard: no man to be condemned unheard

The right to be heard as expressed in the maxim audi alteram partem (hear

the other party) requires that no one shall be condemned unheard. It was

stated in the case of Kanda v Malaya52 that when a person has a right to a

hearing he must know what evidence has been given and what statements

made against him and he must be given a fair opportunity to correct or

contradict them. From this case two elements are deduced. First, the person

has the right to know the case against him. Secondly, the person is legally

entitled to cross-examine his accusers so as to correct or contradict the

statements made against him/her. These elements were stated in the case

of Hypolito Cassiano De Souza v. Chairman and Members of the Tanga Town

Council53that:

a) The person accused must know the nature of the accusation made

against him.

b) A fair opportunity must be given to those who are parties to the

controversy to contradict any statement they may desire to bring

forward and

51
[1962] A.C 322 (PC)
52
Ibid pp. 337-338
53
[1961] E.A. No. 377

71
 c) The tribunal should see that a matter which has come into existence

for the purposes of proceedings is made available to both sides and,

once the proceedings have started, if the tribunal receives a

communication for one party or from a third party, it should give the

other party any opportunity of commenting on it.

Therefore, the right to be heard dwells on the fact that each party must

have the chance to present his version of the facts and to make his

submissions on the relevant rules of law. Article 13 (6) (a) of the

Constitution recognizes this right where it provides inter alia that:

When the rights and duties of any person are being determined by the court

or any other agency, that person shall be entitled to a fair hearing and to

the right of appeal or other legal remedy against the decision of the court

or of the other agency concerned.

(iii) The Right to Know Reasons for the Decision

Today natural justice demands more than rule against bias and right to be

heard. Natural justice requires for the person whose rights are determined

by any judicial organ or tribunal to be given reasons for the decision reached

by that tribunal. This requirement stands as a duty to any decision-making

organ that determines the right(s) of a person. The right to know reasons is

expressed in the maxim nullum arbtrium sine rationibus. According to Flick

as reproduced in the book by Prof. Peter54 “Reasons are a valuable check on

both the exercise of formal and informal decision-making. They provide the
means whereby a party is appraised of why a decision has been made and

54
Peter, C.M. Human Rights in Tanzania: Selected Cases and Materials, p. 429

72
they provide some guidance to those who have to advise the public as to the
attitudes of the administration”.
Right to privacy and personal security.

This right is provided for under Article 16 of the Constitution. The essence

of right to privacy and personal security is to guarantee an individual respect

and protection of his/her person, privacy of one’s person and his/her family

and matrimonial life. This right extends to the protection of one’s residence

and private communication. The spirit of Article 16 revolves around respect

and protection of one’s dignity, the dignity of his/her family and his/her

matrimonial life. It is all about ensuring that the person of every person is

not abused in any way. The family and matrimonial life of every person is not

interfered with without good reasons accepted by the law serve as provided

for under sub-article (2) of Article 16, where by the state authority is

allowed to lay down legal procedures that provide for the manner and extent

to which the right to privacy and personal security may be encroached upon

without prejudice to the provisions of Article 16(1). Knowing the importance

of the right to privacy Article 16(2) uses the word “shall” to show that

whenever the need to interfere with the person of any person, family or

matrimonial life it is mandatory to have in place well established legal

procedures which reveal circumstances, manner and extent to which this

right may be denied to a person.

Right to freedom of movement

Under Article 17(1) every citizen of Tanzania is guaranteed the right to

freedom of movement within the borders of Tanzania and the right to live in

any part of Tanzania, to leave and enter the country (Tanzania), and the

73
right not to be forced to leave or be expelled from Tanzania. Article 17(1)

provides for four aspects:

i. Right to move freely from one place of the United Republic to another

place of the same

ii. Right to every citizen of the United Republic to settle, reside and

establish himself/herself in any part within the borders of the United

Republic

iii. Right to leave and enter the country, and

iv. Right not to be expelled from Tanzania or taken out of the country by

force.

Therefore, every citizen of the United Republic regardless of his/her race,

colour or tribe is entitled to full enjoyment of the right to freedom of

movement within the border of the State. However, this enjoyment is

subject to lawful and reasonable restrictions as provided for under Article

17(2).

Freedom of expression

Article 18(1) guarantees to every person the right to freedom of opinion and

expression also right to seek, receive and impart or disseminate information

and ideas through any media regardless of national frontiers and also the

right of freedom from interference with ones communications. Sub-article

two recognizes the right of every citizen to be informed at all times of

various events in the country and in the world at large which are of

importance to the lives and activities of the people and also of issues of

importance to society. Under Article 18(1) every person has the right to

information. Every person can gather and transmit information by using any

media without being interfered. Article 18(2) recognizes the right of every

74
citizen to be informed and made aware at all times of all events that occur in

and outside the country that are important to the lives of these citizens and

the society. During modern times of globalization where the World has

become very tiny freedom of expression becomes a very important right to

be guaranteed. This is due to the fact that socio-economic development and

progress of the people and nations depend on alert and sound information.

Freedom of expression has been inevitable in a society that needs to

progress and survive in today’s globalize world. However, this right is to be

enjoyed without prejudice to expression the laws of the land.

Right to freedom of religion

Under the Charter of the United Nations all member States have pledged to

promote universal respect for the observance of human rights and

fundamental freedoms for all without discrimination as to religion.55

Being the member of the United Nations Tanzania made, and follows this

commitment as well. Since her Independence Tanganyika was declared to be

a secular State that follows no religion, and that spirit has been the same

even after union between Tanganyika and Zanzibar in 1964. The Preamble to

the Constitution and Article 8 of the Constitution declare Tanzania as a

State that believes in principles of Democracy, Socialism and Self-reliance.

However, the people of Tanganyika (by then) and now Tanzania were left

free to believe religion of their choice. This right to freedom of religion like

other rights is a constitutional one. It is recognized through Article 19.

Under sub-article (1) of Article 19 every person in the country has the right

to the freedom of thought or conscience (sense of right and wrong, ethics),

belief or faith, and choice in matters of religion, including the freedom to

55
Charter of the United Nations, Article 55 and 56.

75
change his religion or faith. The right to freedom of religion includes

freedom of thought or conscience. Every person is free to entertain and

cherish his/her inner thoughts, moral consciousness or belief of his/her

choice. In relation to freedom of religion the State shall not intervene in

anyway the affairs and management of religious bodies, however this will

depend on if the activities of the religious bodies do not prejudice relevant

laws of the Country. It is stated in sub-article (2) that without prejudice to

the relevant laws of the United Republic the profession of religion, worship

and propagation of religion shall be free and a private affair of an individual

and the affairs and management of religious bodies shall not be part of the

activities of the state authority. Sub-article (3) describes the word

“religion” to include religious denominations.

Right to freedom of association

Person’s freedom of association is recognized in Article 20. This right is

entitled to every person, subject to the laws of the land. Every person is

left to freely and peaceably assemble, associate and cooperate with other

persons, express views publicly, and more specially to form or join

associations or organisations formed for the purposes of preserving or

furthering his beliefs or interests or any other interests. This right is very

important as it recognizes the importance of people coming together in

different associations be it religious, political or any non-governmental

organisation. Through this right people, by basing on their interests, can

assemble, associate and cooperate. Under the umbrella of freedom of

association people can form political parties, religious organisations or any

association of their choice and interests. These organisations especially,

political parties and non-governmental organisations and others have proved

76
to be good and necessary stakeholders of the government in bringing about

democracy, and development to individuals and the State at large. Dr.

Chandra writes that56 freedom of association implies that several individuals

get together and form voluntarily an association with a common aim,

legitimate purpose and having a community of interests… Associations, as a

matter of fact, has become an indispensable ally in the struggle to preserve

democracy against totalitarianism.

Right to participate in public affairs.

…Every citizen of the United Republic is entitled to take part in matters

pertaining to the governance of the country, either directly or through

representatives freely elected by the people… Every citizen has the right

and the freedom to participate fully in the process leading to the decision on
57
matters affecting him/her, his/her well-being or the nation. This right

recognizes in fully participatory process in decision-making and matters that

have impact on a citizen either directly or indirectly. Citizens are to be made

aware and participate direct or indirect through representatives of their

choice in matters pertaining to the governance of the country. This right

invites and puts in place the spirit of democracy that involves people in

decision-making process for various matters starting with individual or

personal level to country level.

The right to work and the right to just remuneration

Every person has the right to work. Every citizen is entitled to equal

opportunity and right on equal terms to hold any office or discharge any

56
U. Chandra, Human Rights, Allahabad Law Agency Publications, p.173.
57
Article 21 (1-2)

77
function under the state authority.58 The right to work consolidates to the

dignity of a person as it is well appreciated that work or any lawful trade

brings respect and dignity to a person. It is work or any lawful trade that

enables a person to earn his/her income that will help him/her to do various

things for development of himself/herself, family members, people in need

and sometimes for the country. Right to work includes right to every citizen

to equal opportunity and equal terms to hold any office or discharge any

function in the country. This means that right to work is guaranteed to

every citizen regardless of his/her gender, beliefs or tribe. As long as one is

suitable for the specified work regarding the qualifications needed then

he/she is to be considered for the job and recruited or given the

opportunity to discharge the said work. Mwalusanya. J, (as he then was) had

this to say regarding right to work, in the case of Augustine Masatu v.

Mwanza Textiles Ltd59

For this right to exist [right to work] in a real sense, it is necessary that
economic, political and legal order of the society assure everybody who is
capable of working of the possibility of participating in building his society
through work in accordance with his capacity and education and the right to
earn an income proportional to the quantum of his work. And so job-security
is the hall-mark of the whole system.
From the words of Mwalusanya, J (as he then was) a value was added to the

right to work that brings the real meaning of the right to work. This value is

nothing else than the call for job-security, which is to be assured by

58
Article 22 (1-2)
59
The High Court of Tanzania at Mwanza, High Court Civil Case No. 3 of 1986 (unreported).
The case is reproduced in the book of Human Rights in Tanzania: Selected Cases and
Materials pp. 173-181

78
economic, political and legal system of the country. Noting on the right to

work Prof. Peter60 had this to say:

The Constitution of the United Republic of Tanzania provides for the right
to work in Article 22. This is one of the rare provisions of the Constitution
which is not accompanied by a claw-back clause. It is therefore an absolute
right. It goes hand in hand with the right of every citizen to be afforded
equal opportunity and with equal conditions to occupy any position in the
service of the United Republic. However, to the workers and the working
class in Tanzania, the right to work does not commence and end with this
salutary gesture of declaring the right in the Constitution. For them, it must
mean more than that-the right should of necessity empower them to control
their own destiny and give them a proper edge in their confrontation with
their employers. Therefore, to them it is one of the tools in their struggle
for a better life. The right to work is a product of many years of concerted
struggle against capital and exploitation of labour n general. It means, among
other things, the right to demand for better and fair wages, the right to
withhold labour by use of strikes and other means etc…
Every person, without discrimination of any kind, is entitled to remuneration

commensurate with his work, and all persons working according to their

ability shall be remunerated according to the measure and nature of the

work done. Every person who works is entitled to just remuneration.61

This section is to the effect that every person who works regardless of

gender, tribe, race, colour, whether he/she is physically fit or physically

challenged any condition whatsoever, is entitled to be remunerated by basing

60
Peter, C.M. Human Rights in Tanzania: Selected Cases and Materials, p. 170
61
Article 23 (1-2)

79
on the measure of the work done. Sub-article (2) brings into attention the

right of just remuneration to every person who works.

The right to own property

The right to own property is guaranteed by the Constitution under Article

24. The provisions of Article 24 declare that every person is entitled to own

property and has a right to the protector of his property held in accordance

with law. However, right to property should be enjoyed subject to the

provisions of the relevant laws of the land, that is to say the enjoyment of

this right depends on the condition that one does not violates the relevant

laws of the country. In other words the right to own property is not an

absolute one. In guaranteeing the full and meaningful enjoyment of the right

to own property sub-article (2) declares that it shall be unlawful for any

person to be deprived of property for the purposes of on nationalisation or

any other purposes without the authority of law which makes provision for

fair and adequate compensation. Sub-article (2) is a mandatory provision

that unlawfully any taking of any person’s property on nationalisation policies

or for any other purposes without the authority of the law that provides for

fair and adequate compensation. In other words before a person is deprived

of his/her property there must be the law that authorizes the taking of the

property by providing fair and adequate compensation, here compensation

which is fair and sufficient is very important.

The history of the right to own property is well provided for by Prof.

Peter.62

62
Peter, C.M. Human Rights in Tanzania: Selected Cases and Materials, pp. 250-253

80
Duties to the society

Behind every right there is a duty. Though the Constitution recognises the

rights of the people, it also invokes duties that citizens and the people in

general should observe, and these are duties to the society. The duties once

observed make the enjoyment of the rights by everyone a reality, but once

one disregards the duties he/she violates the rights of others or society in

one way or another, for example right to work goes perpendicular with the

duty to participate in work. Article 25 creates a duty to every person to

participate voluntarily and honestly in lawful and productive work and

observe work discipline and strive to attain the individual and group

production targets desired or set by law.

Article 26 stands for the duty to every person to observe and abide by the

Constitution and the laws of the United Republic.

Students are advised to read Articles 25-29 respectively as far as duties

are concerned.
CHAPTER TWO

Chapter two concerns the Executive of the United Republic and it is divided

in three parts. Part one concerns the President, part two is on vice-president

and the last part, part three provides for Prime Minister, Cabinet and the

Government. Briefly, the discussion on each part is made hereunder.

Part One

The President

The office of he President of the United Republic is provided for in Article

33(1) “There shall be a President of the United Republic”.

81
 The President of the United Republic shall also be the Head of the State,

the Head of Government and the Commander-in-Chief of the Armed

Forces.63The President is elected by the people in accordance with the

requirement of the Constitution and the laws enacted by the Parliament

pursuant to the provisions of the Constitution.

UNIT 5
Constitutional Principles
xi. Introduction
xii. Sovereignty of the People
xiii. Supremacy of the Constitution
xiv. Separation of Powers
xv. The Doctrine of Parliamentary Supremacy
xvi. Representative Parliament
xvii. Independence of the Judiciary
xviii. Rule of Law
xix. Respect for Human Rights and Gender Equity
xx. Conclusion

CONSTITUTIONAL PRINCIPLES

63
Article 33 (2)

82
Introduction

Meaning of Constitutionalism

Constitutionalism refers to the Constitutional limits on the Organs of the

government, which are the Executive, Parliament and the Judiciary. The

limits are set up by the Constitution itself through constitutional rules and

principles. The limits should always derive its justification from the

constitution. That being the requirement the limits should be legal. The

Constitution should make the government realize that its rule is subject to a

certain bunch of limits. The Government should have an attitude of

justifying its actions with reference to the constitution. That will only be

possible when the Constitution itself is democratic. Democratic in the sense

that it stipulates the constitutional rules and principles clearly. The

Constitutional rules and principles that need to be found in any democratic

Constitution include: Supremacy of the Constitution, Sovereignty of people,

Separation of powers, Independence of the Judiciary, Rule of law and basic

human rights. The amalgam of these constitutional rules and principles form

Constitutionalism. The limits, through constitutional rules and principles, help

the government not to rule tyrannically on whims, caprices and arbitrary

discretion but rather to rule in accordance with the constitution.

Constitutionalism insists on transparency and good governance and respect

of individual liberty. Constitutionalism is the whole idea of making peoples'

interests and rights recognized and respected. Constitutionalism makes

government accountable to its people. The whole concept of

Constitutionalism rests on the principles of limited government and rule of

law.

83
To sum up the meaning of Constitutionalism it is wise to quote a prominent

writer on public law, S. A de Smith who said:

To me, Constitutionalism in its formal sense means the principle

that the exercise of political power shall be bounded by rules,

rules which determine the validity of legislative and executive

action by prescribing the procedure to which it must be

performed or by delimiting its permissible content.

…Constitutionalism becomes a living reality to the extent that

these rules curb the arbitrariness of discretion and are in fact

observed by the wielders of political power, and to the extent

that within the forbidden zones upon which authority may not

trespass, there is significant room for the enjoyment of

individual liberty.64

Constitutional limits on Government

It is now well known that constitutionalism is all about limited government

and rule of law. That is to say, Constitutionalism simply means Constitutional

limits in government. The constitution should limit the Organs of the

government so that they do not exercise their power tyrannically. The whole

practice of constitutionalism is well seen when the constitution of a country

limits the pillars of the government. The pillars are the executive, the

Legislature and the Judiciary. Since the three pillars are creatures of the

64
S. A. de Smith, "Constitutionalism in the Commonwealth Today", 4 Malaya Law Review,
vol.4, no.2 (1962), at p. 205.

84
constitution, the latter should clothes them with their powers and in so

doing delimits the scope within which they are to operate. In this sense,

Constitutionalism has come by and large to presuppose a written

constitution. A government operating under a written constitution must act

in accordance with it, any exercise of power outside the constitution is

invalid. In such a system, a constitution is supreme. Alexander Hamilton

writes that, No legislative act contrary to the constitution can be valid. To

deny this would be to affirm that the deputy is greater than his principal;

that the servant is above the master, that the representative of the people

are superior than the people themselves; that men acting by virtue of

powers may do, not only, what their powers do not authorize, but what they

forbid65. Hamilton's observation is to apply to the rest of government's

organs.

Elements of the limits on government

Professor de Smith prescribes the minimum elements necessary for

constitutionalism as follows:

"A contemporary liberal democrat, if asked to lay down a set of

minimum standards, may be very willing to concede that

constitutionalism is practiced in a country where the

government is genuinely accountable to an entity or organ

distinct from itself, where elections are freely held on a wide

franchise at frequent intervals, where political groups are to

organize in opposition to the government in office and where

65
Federalist, 78.

85
 there are effective legal guarantees of fundamental civil

liberties enforced by an independent judiciary and he may not

easily be persuaded to identify constitutionalism in a country

where any of these conditions is lacking.66

The same view is prescribed by Professor Mcllwain who maintains that all

that is needed is the ancient legal restraint of a guarantee of civil liberties

enforceable by an independent court and the modern concept of the full

responsibility of government to the whole mass of the governed.67

By looking at the above findings of Professors de Smith and Mcllwain one will

realize that the core and substantive elements of Constitutionalism are

Separation of Powers, Democracy, Constitutional guarantee of individual

liberties and Independence of the Judiciary. However, the developments on

advocacy for Constitutionalism have integrated notions of Supremacy of the

Constitution, Sovereignty of the people, Representative Parliament and Rule

of law. Presently, these elements altogether are the core requirements for

Constitutionalism. It is now the task of this paper to present them one after

the other.

Separation of powers

The doctrine of Separation of powers traces its origin way back to

Aristotle's work.68John Locke (1632-1772) later postulated it in his book,

66
The New Commonwealth and Its Constitutions, 1964, p. 106.
67
Constitutionalism: Ancient and Modern, revised ed., 1947, pp. 141-6
68
Politics, Book IV

86
The Second Treatise of Civil Government. However, the doctrine received
its modern formulation in the middle of the 18th Century by the renown

French jurist called Montesquieu, who said:

When the Legislative Power is united with the Executive Power

in the same person or body of magistrates, there is no liberty

because it is to be feared that the same Monarch or the same

Senate will make tyrannical laws in order to execute them

tyrannically. There is again no liberty if the judicial Power is not

separated from the Legislative Power and from the Executive

Power… If it were joined to the Executive Power, the judge

would have the strength of an oppressor…69

According to the formulation by Montesquieu the doctrine simply means

there are to be three different powers of the State, which are the

executive, the Legislature and the judiciary, their personnel are to be

different and their functions should be different. Professor Peter

prescribes that, under the doctrine the legislature is supposed to make laws,

the judiciary to interpret and administer them and the executive to enforce

them.70

Constitutionalism demands for its efficacy a differentiation of governmental

functions and a separation of the powers that exercise them. However, it

has to be noted that practice and exigencies of modern governments have

made a complete adherence to the doctrine impossible. The focus now is on

insisting checks of one power by another. Separation of Power is taken to be

69
See L'Esprit des Lois, Book XI
70
Chris Maina Peter, Human Rights in Tanzania: Selected Cases and Materials, 1997 at p.
482

87
an important element for constitutionalism as it prevents tyrannical rule. It

was Montesquieu's argument that separation of power between different

organs of the State helps to deter abuse of power and the three organs

mutually act as checks on each other thereby balancing it.71 The practical

part of separation of powers proves that it is inevitable to strictly follow

the three well-known meanings of the doctrine. Matters are designed in such

a way that each branch operates as a check on the other. United States is a

good example on this. The President may veto legislation but has no power to

dissolve Congress, he can also be impeached by the Congress. Though the

President can appoint federal judges, his appointments need to be confirmed

by the Senate.72 The Congress not the Executive removes Federal judges.

Checks and Balances

The idea of checks and balances seeks to make the separation of powers

more effective by balancing the powers of one agency against those of

another through a system of positive mutual checks exercised by the

governmental organs upon one another. Thus, the executive might be

empowered to dissolve the legislature and the legislature to impeach the

chief executive, to approve the appointment of certain top State officials.

The checks differ from one State to another depending on the type of

government and its constitution. Checks and balances presupposes that a

specific function is assigned primarily to a given organ, subject to a power of

71
Shivji I. G. et al., Constitutional and Legal System of Tanzania: A Civics Sourcebook, 2004
at p.43
72
The Senate rejected President Lyndon Johnson's for Chief Justice Fortas.

88
limited interference by another organ to ensure that each organ keeps

within the sphere delimited to it.

Sovereignty of the People

Sovereignty of the people presents the idea that State power resides with

the people. In any democratic government, sovereignty resides in the people

in the sense that, it is the people themselves who are actually the source of

power or authority. Sovereignty of the people is seen in many written

Constitutions through their preambles. The proclamation in the preambles

evidences that the people are the makers of the Constitution and that the

latter derives its legal authority and political legitimacy from the people.

The words "We, the People…" in a Constitution are not the mere words but

they present a very important message that the Constitution is made by the

people by virtue of constituent assembly or is made on their behalf. There

are so many examples that can be used to reveal this argument, for example

the constitution of India of 1949, states, 'WE, THE PEOPLE OF INDIA, …,

IN OUR CONSTITUENT ASSEMBLY …, Do HEREBY ADOPT, ENACT AND

GIVE TO OURSELVES THIS CONSTITUTION. In Tanzania the Union

Constitution of 1977 (as amended in 2005) proclaims in its preamble, (see

down for English Official translation)

KWA KUWA SISI Wananchi wa Jamhuri ya Muungano wa

Tanzania

Tumeamua rasmi na kaw dhati kujenga katika nchi yetu jamii

Inayozingatia misingi ya uhuru, haki, udugu na amani:

NA KWA KUWA misingi hiyo yaweza tu kutekelezwa katika jamii

89
 Yenye demokrasia, ambayo Serikali yake husimamiwa na Bunge

Lenye wajumbe waliochaguliwa na linalowakilisha wananchi,

na pia yenye Mahakama huru zinazotekeleza wajibu wa kutoa

haki

bila woga wala upendeleo wowote, na hivyo kuhakikisha

kwamba haki

zote za binadamu zinadumishwa na kulindwa, na wajibu wa kila

mtu

unatekelezwa kwa uaminifu:

KWA HIYO BASI, KATIBA HII IMETYUNGWA NA BUNGE

MAALUM LA JAMHURI YA MUUNGANO WA TANZANIA,

kwa niaba ya Wananchi, kaw madhumuni ya kujenga jammi kama

hiyo, na pia kwa ajili ya kuhakikisha kwamba Tanzania inaongozwa

na Serikali yenye kufuata misingi ya demokrasia, ujamaa na

isiyokuwa na dini.73

73
WHERAS WE, the people of the United Republic of Tanzania, have firmly and solemnly
resolved to build in our country a society founded on the principles of freedom, justice,
fraternity and concord:
AND WHEREAS those principles can only be realized in a democratic society in which the
Executive is accountable to a Legislative composed of elected members and representative
of the people, and also a Judiciary which is independent and dispenses justice without fear
or favour, thereby ensuring that all human rights are preserved and protected and that the
duties of every person are faithfully discharged:
NOW THEREFORE THIS CONSTITUTION IS ENACTED BY THE CONSTITUENT
ASSEMBLY OF THE UNITED REPUBLIC OF TANZANIA, on behalf of the People, for the
purpose of building such a society and ensuring that Tanzania is governed by a Government
that adheres to the principles of democracy and socialism.

90
Professor Shivji seriously states that these proclamations are not mere

embellishment. They evidence one important legal and political fact. This is

that the constitution derives its legal authority and political legitimacy from

the people. By giving themselves a constitution, the people are formally and

legally constituting state power: providing for state organs and their

respective powers, the procedures for exercising those powers and the

limits on exercising them. All state power, that is legislative power,

executive power and judicial power, is created by the constitution and must
74
derive its authority from the constitution. In this perception and

understanding of sovereignty of the people, all powers and actions of

government organs need to be exercised and justified with reference to the

constitution. The Executive should always execute its functions with

reference to the terms of the constitution. The Parliament when making laws

must not go beyond what is required of it in the constitution. The same

applies to the Judiciary, it has to look and shape itself within the ambit of

the mother law of the land. Nothing extra-constitutional by any of the

organs can find justification in such a proclamation.

Supremacy of the Constitution.

The principle of Constitutional supremacy is found in many countries that

have written Constitutions. In countries, where written constitution is

adopted it is the constitution, which is supreme. Supremacy means that

74
Shivji I. G " Constitutional Limits on Parliamentary Powers" at p.3

91
Constitution is the source of all other laws of the country. The Constitution

is providing for the ways and procedures of making laws of the country. The

Constitution is to declare the body, which is vested with powers to make

laws. The procedures for amending the laws including the Constitution itself

are to be provided for in the Constitution. Basic rights and duties of the

people are to be recognized by the Constitution. Therefore, Supremacy of

the Constitution demands for the Constitution to be above all other laws of

the country. The laws must be made and justified from the Constitution. No

law should be applicable if it contravenes the Constitution. Supremacy

demands the Constitution to prevail whenever there is a conflict between

the constitution and any other law. Supremacy of the constitution also

requires the courts to hold void any exercise of power which does not comply

with the prescribed manner and form or which is not in accordance with the

Constitution. Shivji says, this is then the basis for the principle that the

Constitution is "basic law" from which all other laws and institutions derive

their authority.75(See Article…)

Representative Parliament

Constitutionalism calls for the makers of the laws to be the result of

peoples' choice. Members of Parliament must always be the representatives

of the people. For there to be a representative parliament free, fair and

democratic elections in a country is a must. People are to be given

opportunities to choose their leaders freely. A representative parliament is

guaranteed in a place where democracy is fully practiced. If this condition is

75
Shivji I. G et al Constitutional and Legal Systems of Tanzania: A Civics Sourcebook at p
42

92
fulfilled then the Parliament becomes representative one, the parliament

that speaks for the people and represents the interests of the people. It is

only when a country has representative parliament where the people will feel

part of the government.

Independence of the Judiciary

Judiciary is an autonomous organ, which is vested with powers to dispense

justice. It deals with the interpretation, construing and application of the

law. It is a body that determines the guilty or innocence of an accused

person, also it decides on rights and liabilities of the people. Generally, the

administration of justice is in the custody of the Judiciary. Basing on the

idea above Judiciary needs to be independent for it to fulfill its functions

without fear or favour. Judiciary must be kept away from all forms of

interference and control. Hon. Justice Buxtorn Chipeta defined

Independence of the Judiciary in these words76

As I understand the constitutional position in our

country, the Judiciary is supposed to be an independent

institution- independent in the sense that those who are

entrusted by the Constitution to decide the rights and

liabilities of guilt or innocence of people must be free

from all kinds of pressures, regardless of the corners

from which those pressures come. The Judiciary must be

free from political, executive or emotional pressures if it

is going to work with the smoothness and integrity

76
In the case of Republic v Iddi Mtegule, High Court of Tanzania at Dodoma (PC), Criminal
Revision No. 1 of 1979 (Unreported).

93
 expected of it under the supreme law of the land- the

Constitution. It must not be subjected nor succumb to

intimidation of any kind.

In the same lines, Prof. Peter writes, Independence of the Judiciary means

every judge or magistrate, as the case may be, is free to decide matters

brought before him in accordance with his assessment of the facts and his

understanding of the law without any improper influence, inducements, or

pressures direct or indirect from any quarter or for any reason… . We

always tend to think independence of the Judiciary means just independence

from the legislature and the executive; it means more than that. It also

means independence from political influence whether exerted by the

political organ of the State, or by political parties, or the general public, or

brought in by judges themselves through their involvement in politics, which

may take two forms, viz. deciding in favour of dominant sects (such as the

ruling party) and, or of membership of judicial personnel to political

parties.77

Independence of the Judiciary also demands for the government to

guarantee the welfare of judicial officers especially judges and magistrates.

There should be specific provisions on salaries and other remunerations,

security of tenure, judicial immunity and…. All these dimensions are to be

recognized in the Constitution of a country.

With that, perspective independence of the Judiciary today means more

than interference of the Judiciary by the Executive. In modern times, the

term Independence of the Judiciary incorporates freedom from all kind of

77
Prof. Chris Maina Peter Human Rights in Tanzania: Selected Cases and Materials at p 482

94
pressures no matter where they come from, whether political or

administrative. The doctrine embodies impartiality of adjudication, fairness

of trial and integrity of the adjudicator. Independence of the Judiciary

once guaranteed in a country helps to indicate the recognition and practice

of justice for a great extent. Once the Judiciary is Independent Judges and

Magistrates are placed in a better and safe position to administer justice

without fear or favour, again the citizens gain confidence with their

government in the sense that it is the rule of law that is in place and not the

rule by interests of the few people in power.

Judicial Independence In a country that professes for the rule of law and

principles of democracy, Independence of the Judiciary is necessary

Independence of the Judiciary has been a determinant factor for

democratization. The advocacy for an Independent Judiciary is not the

struggle to put in place the doctrine of Judicial Supremacy but rather to

have in place the political power that facilitate Judicial Independence. In

this regard, the building of judicial independence in any country depends on

initiatiatives and efforts of more than one body. All stakeholders in the

struggle to build democratic States including the Courts of law have a very

big role to play in promoting judicial independence. However, that

requirement does not excuse the Governments from the big role to play in

ensuring the Judiciary is independent.

Rule of Law.

The principle of rule of Law is a historical phenomenon. The principle stands

against rule by personal whims and caprices of the monarchies. Under the

95
monarch regime, it is rule by man that prevails as opposed to rule of law.

Traditionally, rule of law, as propounded by Dicey78 means Supremacy of the

law and equality before the law. However, Constitutional scholars raised

many criticisms that if rule of law is to mean supremacy of the law there is a

big possibility for tyrannical leaders to put in place tyrannical laws so that

they enforce them tyrannically. Good examples that are given to criticize

the formulation by Dicey are the Apartheid regime in South Africa and the

rule by Idd Amin in Uganda. However, the challenge is drawn that when

Dicey was propounding for rule of law as against rule by law he wanted to see

all unjust systems of governments are discouraged at the expense of just

laws. Therefore, it is worth to argue that by supremacy of law Dicey meant

supremacy of just laws. Basing on that take Professor Shivji79 writes rule of

law means that the exercise of political power is in accordance with rules

and laws and power is to be exercised within these rules and laws and not

according to personal whims or desires of the ruler. Every individual or

Institution which exercises authority or public power has to justify it by

reference to law.

The meaning of rule of law has been changing from time to time following

great changes and challenges facing the world's democracy and human rights

issues. The advocacy for democracy and human rights has added more value

to the meaning of rule of law. Today it is not enough to say about supremacy

of the law, but it values a lot to talk about the body that makes those laws.

The people who are the result of peoples' choice must constitute the body
78

79
Shivji .I.G et al Constitutional and Legal Systems of Tanzania: A Civics Sourcebook at p.
45

96
that is vested with powers to make laws. The body should have a

representative flavour; that is to say, all the people should be well

represented. Once the representative body is put in place it becomes easier

to make the lawmakers accountable at the moment they enact unjust laws.

Therefore, rule of law demands for a representative body to make laws of

the country. In line with a representative body, the emphasis today is also on

just and fair laws. The other ingredient that adds value to the rule of law is

Independence of the Judiciary. The Judiciary as the custodian of justice

should enjoy the maximum freedom enough to make it administer justice

without fear or favour. Knowing the importance of Independence of the

Judiciary as an element of rule of law the International Conference of

Jurists held in New Delhi in 1959 pronounced that Independence of the

Judiciary is an indispensable requisite of a free society under the rule of

law. The experience since 1959 shows that for a country to be a rule of law

State one among the things that need to feature in that particular country

is the Judiciary that is Independent. Separation of Powers plays an

important part in the doctrine of rule of law. In any, State rule of law is not

complete if the Powers of the State are not separated from one another.

There must be three State Organs. The Officials in these Organs are to be

different performing different functions. Democracy is an essential element

in rule of law. Through democracy, people are made part of the government.

The people are participated fully in the decision making. Democracy allows

people to elect their representatives in the government. In a rule of law,

State people enjoy the freedom of speech and expression, which is part and

parcel of democracy. In practicing democracy through freedom of speech

and expression people can do it either by way of conduct or orally. In a

97
country, where rule of law is predominant people can freely express what

they want their government to do for them, and condemn the acts of

government that jeopardize the entire practice of rule of law. Therefore,

the new jurisprudence on rule of law incorporates, apart from well-known

traditional definitions, issues of Democracy, respect for basic human rights,

Independence of the judiciary, Representative Parliaments, recognition and

respect of peoples' views and expression in the running of governments. Rule

of law in modern times also calls for Transparency and accountability on the

part of the government.

Basic Human Rights

It is common and well known that the term human rights is not a novel

phenomenon in the ears of many people in the world today, though this

understanding does not refute the fact that in some areas due to different

reasons people do not know their rights as a result makes it impossible to

demand them in times of violations. Human rights are those rights

recognized to any person simply by being a human being and nothing else.

Human rights are not privileges that one may wish to give to another as

he/she wishes. Basic human rights are to be recognized to all people

regardless of their sex, race or religious beliefs. They are the same to all

persons, the most qualifying character is the fact that one is a human being.

Therefore, rights are to be recognized to all persons. Since human rights

are not privileges then they are innate that is; one comes into the world with

them. Human rights start to be recognized since one is still a foetus.

98
Generally speaking human rights are first said to be recognized, second,

inalienable and inherent and third human rights are said to be essentially

equal. On the recognized aspect of human rights, Dr. Chandra writes "Human

Rights are neither derived from the social order nor conferred upon the

individual by the society. They reside inherently in the individual human

beings independent of and even prior to his participation in the society. As

such, they are the result of recognition by the State but they are logically

independent of the legal system for their existence80. Human rights are said

to be inalienable natural and inherent in the sense that a holder of these

rights cannot divest himself of them. The reason is simple. These rights are

inherent in the very nature of human being81. Jackues Maritain writes on this

aspect that "human person possesses rights because of the very fact that it

is a person, a whole, a master of itself and of its acts…by natural law, the

human person has the right to be respected, is the subject of rights,

possesses rights. These are things which are owed to a man because of the

very fact that he is a man"82. Therefore, the thing that is done by various

documents is to recognize these rights. The Instruments that list the rights

only recognize human rights but they do not give human rights, if they could

be giving human rights then, human rights could be a matter of privilege and

obvious the name human rights could be replaced by another name that would

reflect the indication of privilege against a right. There are number of

reasons as to why the term human rights is so popular and famous in

different countries of the world. However, the most common reason for the

80
U. Chandra, Human Rights at p.14
81
Ibid at p.15
82
J. Maritain, The Rights of Man and Natural Law, p. 65(D. Anson trans, 1951)

99
peoples' awareness towards human rights is the maximum violations of these

rights. Mal-violation of human rights throughout the world has made it

possible for people to know their rights, hence demand them in case of

disrespect of the same. There is a common say in African History that

Colonialism planted seeds of its own destruction, meaning that through the

negative treatments of colonialists people suffered a great and intolerable

pinch, that awaken them to find means of getting rid with colonialism. The

hard life experienced by the people during colonial period stimulated them,

not to sit back and wait for others to help, to struggle for independence.

Similarly, the same test is to be compared with the struggle for respect for

and recognition of human rights throughout the world. In different epochs,

people have been able to demand their rights after feeling tangibly the pinch

of the denial. In most cases, human rights are known through negative

experience. Therefore, the recognition of certain basic rights has always

been, and experience shows will always be, the result of what people see to

be contrary to their rights. This is not to be taken that it is impossible to

have the rights recognized before the violation is experienced but the

reality is out of peoples' experience first that things are not right

somewhere it is when certain rights are noted and advocacy for their

recognition takes the motion.

There are number of documents that recognize human rights. These

Instruments are categorized into three groups. International Instruments

make up the first group. The second group is that of Regional Instruments

and the third is made up by National Instruments. This is to say human

rights are recognized in three different levels, and that helps to implicate

100
that issue of human rights has to draw and receive not only the attention of

International Community but also the national attention. The member

countries of United Nations should in all their dealings recognize and

respect human rights. This is due to the fact that Member States of UN are

required and emphasized to sign, ratify and domesticate all the human rights

treaties, because they are bound by the UN-Charter of which declares the

reaffirmation faith in fundamental human rights83. Following the

understanding that some states deny the responsibility by basing on the

argument that they are not UN Members and that they have not signed

certain treaties hence not bound by them, all countries in the world whether

UN members or not are bound by all human rights treaties passed regardless

of the fact that they have signed them or not. Before discussing how human

rights is regarded to be an essential element in Constitutionalism it is wise

to dwell a little bit in essence of various International and Regional human

rights Instruments.

International Instruments

Internationally, The Universal Declaration of Human Rights, 194884 is the

very significant legal Instrument on human rights. It was the first document

to recognize various human rights such as right to life, liberty and security

of person.85The declaration reaffirms in the preamble the faith in

fundamental human rights, in the dignity and the worth of the human person

and in equal rights of men and women. The first two articles of the

83
Article…of the UN-Charter.
84
United Nations General Assembly Resolution 217 (III) of 10th December, 1948.
85
Article 3 of the Universal Declaration of Human Rights, 1948.

101
Declaration insist on application of these rights and freedoms to all people

regardless of their race, colour, sex, language, political or other opinion,

national or social origin, property, birth or other status. The, Declaration

states that "Everyone has the right to life, liberty and security of person".

Other rights recognized by the Declaration include rights against torture,

inhuman or degrading treatment or punishment86. Equality before the law is

recognized under article seven It is stated in article seven that "All are

equal before the law and are entitled without any discrimination to equal

protection of the law. All are entitled to equal protection against any

discrimination in violation of this Declaration and against any incitement to

such discrimination." Article eight recognizes the right to an effective

remedy by the competent national Tribunals for acts violating the

fundamental human rights granted by the constitution or by the law. The

right against arbitrary arrest, detention or exile is stipulated under article

nine, the article states " No one shall be subjected to arbitrary arrest,

detention or exile. Right to a fair trial87 and the eminent right of

presumption of innocence88 until one is proved guilty by the court of law. are

also recognized by the Declaration. Freedom of movement is covered under

article thirteen.

Economic, Social and Cultural rights are covered in articles 22-27. These

include the right to work, the right to rest and leisure, the right to standard

living adequate for the health and well being, right to education is

86
Article 5 of the Universal Declaration of Human Rights, 1948 "No one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment."
87
Article 10 of the Universal Declaration of Human Rights, 1948.
88
Article 11 of the Universal Declaration of Human Rights, 1948.

102
recognized under article 26 while article 27 dwells on the right to

participate in the cultural life of the community.

Generally, the Declaration that has 30 articles is a very important document

since it recognizes and sums up the Civil, Political and Religious Liberties of

men and women all around the world. Writing on the importance of the

Declaration Tandon89says, "The Declaration sets a new international

standard. For the first time in history, the representatives of most

governments on earth have agreed that certain rights belong not to any one

national or group but to every human being as a human being. The United

Nations have proclaimed that people have rights not because they are

Swedes or Arabs, Christians or Buddhists, Eskimos, Hottentoes or South

Sea Islanders, but because they are human beings. What the Universal

Declaration really says is that each person should be considered on his or

her merits and all deserve a chance to live a full and happy life".

The other International documents to supplement the UDHR, 1948 were The

International Covenant on Civil and Political Rights, 1966 and The

International Covenant on Economic, Social and Cultural Rights, 1966.

The two Instruments represent the first two generations of human rights

namely the Civil and political rights being human rights of first generation.

The second generation consists of economic, social and cultural rights.

The International Covenant on Civil and Political Rights, 1966

89
M P Tandon "Public International Law" at p 199.

103
The International Covenant on Civil and Political recognizes various human

rights such as inherent right to life90. Right against torture or cruel,

inhuman or degrading treatment or punishment is recognized under Article 7

of the Covenant. Article 9 declares that everyone has the right to liberty

and security of person. Right for persons deprived of their liberty to be

treated with humanity and respect91. Freedom from imprisonment merely on

the ground of inability to fulfil a contractual obligation92. Freedom of

movement and freedom to choose residence93. Right to be treated equal

before the courts and tribunals94. The right to be presumed innocent until

proved guilty for everyone charged with criminal offence is covered under

Article 14(2). Right to recognition as a person before the law95. Right to

privacy and family96. Right to freedom of thought, conscience and religion97.

Right to hold opinion and the right to freedom of expression are covered

under Article 19. Right of peaceful assembly98. Freedom of association is

guaranteed under Article 22. Right to family is under Article 23 while

Article 24 recognizes the right of every child to protection as are required

by his status as a minor, on the part of his family, society and the State

without any discrimination based on race, colour, sex, language, religion,

national or social origin, property or birth. Equality before the law is

90
The International Covenant on Civil and Political Rights, Article 6
91
Ibid, Article 10
92
Ibid, Article 11
93
Ibid, Article 12
94
Ibid, Article 14
95
Ibid, Article 16
96
Ibid, Article 17
97
Ibid, Article 18
98
Ibid, Article 21

104
recognized under Article 26. Minority rights are recognized by virtue of

Article 27.

The International Covenant on Civil and Political Rights has two major

Optional Protocols, i.e. to say the Covenant was amended twice since its

coming to force. The first Protocol is called Optional Protocol to the

International Covenant on Civil and Political Rights, 1966. This Protocol

mainly, laid the complaint procedure to the Human Rights Committee based

in Geneva, Switzerland.

The International Covenant on Economic Social and Cultural Rights, 1966

The Covenant under Article 2 requires each Member State to undertake

steps individually and through International assistance and cooperation

especially economic and technical to the maximum of its available resources,

with a view to achieving progressively the full realization of the rights

recognized in the Covenant by all appropriate means, including particularly

the adoption of legislative measures.

The Covenant recognizes the right to self-determination, right to people to

dispose their wealth and resources99. Right to men and women to enjoy all

economic, social and cultural rights that the Covenant set100. Other rights

recognized to be of economic, social and cultural rights include the right to

work101, right to the enjoyment of just and favourable conditions of

99
The International Covenant on Economic, Social and Cultural Rights, Article 1
100
Ibid, Article 3
101
Ibid Article 6

105
work102whereby workers are to be provided with fair wages and equal

remuneration regardless of their sex whether men or women, no group

should be treated as superior and the other inferior. Decent living is a

guaranteed right to workers and their families. Right to safe and healthy

working conditions103. Right to form trade unions is covered under Article 8.

Right of everyone to social security104. Other rights include right to an

adequate standard of living, right to the enjoyment of the highest attainable

standard of physical and mental health105. Right to education is also

recognized by the Covenant under Article 13 while right to cultural life is

recognized in through Article 15.

Article 16 puts responsibility to member States to submit, to the

Secretary-General of the UN, reports on the measures which they have

adopted and the progress made in achieving the observance of the economic,

social and cultural rights.

In the changing world today, recognition of basic human rights has been a

major challenge in any country that professes Constitutionalism.

Constitutionalism calls for great respect, protection and promotion of human

rights. Recognition of basic rights is regarded to be an important dimension

of Constitutionalism. Basing on the same spirit of protection and promotion

of human rights UN-Member states are emphasized to ratify and

domesticate all agreements geared towards human rights promotion.

102
Ibid Article 7
103
Ibid Article 7(b)
104
Ibid Article 9
105
Ibid Article 12

106
107