1 MEANING AND CLASSIFICATION OF CONSTITUTION By Tito Magoti
MEANING AND CLASSIFICATION OF CONSTITUTION
INTRODUCTION
Constitution is the subject which deals with foundations or basic law of the nation. It is a subject which deals with the interpretation and application of constitution of the nation/country or state.
All most every state or country in the world has its own constitution. Every country has its own constitution on either written or unwritten constitution of a country or state or nation is always regarded as highest and supreme law of a country.
MEANING OF CONSTITUTION
There is no single definition which is conclusively acceptable to be the most meaning of the tern constitution therefore it may be defined in various ways. There are many definitions of the term constitution. It is anniversary noted that defining the tern constitution is little difficult and ambiguous and to prove this professor Ingo Von Munch, professor in law has this to say;
“…The importance of constitution is beyond doubt but the definition of the term constitution has remained questionable to the meaning of the word constitution is ambiguous…”
Also professor Wambary of school of law of University of Dar es Salaam in Tanzania contributes the concept of defining the term constitution is difficult. The professor was invited to deliver a paper in a workshop organized by the East Africa Law Society. The theme of the workshop was The Constitutional Reforms of East African Countries of East Africa Integration.
In this paper professor Wambary stated that he will give meaning of constitution however throughout the paper from page one to the last he didn’t give the meaning of the term constitution. Professor did give the meaning of the concept constitutionalism, despite of these difficulties to define the term constitution as seen in these professors’s work there are some of the definitions or meanings of the term constitution which are used.
I.
ETYMOLOGY DEFINITION
Etymology is the science which deals with studying on the origin of words, etymologically the
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term constitution originated from French word known as ‘Constitutio’ which in English means important law of the country or nation therefore from etymological point of view constitution means the important and highest law of the country.
II.
LITERATURE DEFINITION
There are various textbooks which have different meanings of the term constitution among definition from text books are that constitution is a document having special legal sanctity (holy thing). These documents set out framework and principle functions of the organs of the state and it also declares principles or rules governing the operations of those organs of the state which are executive, legislature and judiciary. These definitions has one weakness that based on presumption that all constitutions of the nations are in document or written form therefore they may create ambiguity as it is understood that there are some of constitution of the country in the world are unwritten.
III.
ABSTRACT AND CONCRETE DEFINITION
The term constitution is used in two different senses that is abstract and concrete sense. In abstract sense constitution means system of law, customs and conversions which define composition and powers of the organs of the state and regulates the relations of various state organs to one either and relations of the state organs to private citizens. In concrete sense constitution means the document in which the most important laws of the land are authoritatively. From the abstract and concrete senses there are two types or form of constitution and that is written and unwritten constitution. The abstract meaning suggests the possibility of having unwritten constitution and concrete sense suggests the possibility of having written constitution. So generally constitution may be written or unwritten.
IV.
JUDICIAL DEFINITION
Honourable Damian Lubuva, one of the prominent judges of Tanzania had one definition of the term constitution and according to him the term constitution means the fundamental bases on law of the land.
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GENESIS OF CONSTITUTION
The origin of constitution can be traced from different stages or phrases of development of human kind in the world. As development of human society was not uniform also the development of constitution was not uniform. This means in various places or states constitution developed in different forms and style. The following are some of the account of the development of constitution in the world.
A. DEVELOPMENT OF CONSTITUTION IN CONTINENTAL EUROPE
The earliest model of constitution in continental Europe is believed to exist in Greece and this constitution was known as the scribes of drago was one of the kings of ancient city states who lived as far back 621 BC. DRAGO wrote on Scribes which known as the laws of the city states of anthens and this was the constitution of the anthens of the city states of Greece, it was believed to be the most oldest constitution in continental Europe.
Being old it was cruelty and under democratic, one of the features which show that it was cruel was that the constitution prescribed death penalty for all offences. The second constitution was the Solon Constitution which was formulated by the king Solomon, another rule of anthens. It was believed to be a better constitution compared to DRACO constitution. One of its features which make it to be better was it declared and prescribed the rights of individuals such as right to own property, freedom of liberty. Most of these rights prescribed in Solomonian constitution are the corner stone of the modern constitution example fundamental rights of the people or human rights. Despite the fact that Solomonian constitution was better than DRACON constitution, it has a weakness that is one it was requiring ruling class to be determined by wealth. This was Solomonian constitution in other words was the constitution which was plutocracy. The Solomonian constitution was formed by King Cleisthenes, the reform were made sometime in 508 BC, the major reform was to make Solomonian constitution a much more democratic one. Apart from anthens another society in Europe to have constitution in earliest period is Rome city states have constitution known as twelve (12) tables.
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B. CONSTITUTION DEVELOPMENT IN ASIA
The history believed that the 1st constitution in Asia is in Japan known as Seventeen (17) Articles
Constitution prepared by Prince Shotock of Japan, Japanese constitution influenced by religious teachings therefore 11th Articles of constitution emphasized on religious morality rather than government. That constitution followed by the constitution of Medina known as Medina Charter.
Medina Charter was drafted by prophet Mohammed (PBAH) upon him 622 AD, the Medina
Charter was the highest constitution which guarantee the basic rights to all people in Asia. It provide for freedom of worship, freedom of religious and religious toleration. Medina Charter emphasis on judicial process regarding the rules of welfare, taxation, criminal justice and civil dispute settlement.
C. CONSTITUTIONAL DEVELOPMENT IN ENGLAND
The 1st constitution in England is believed to be Charter of Liberty of 1100 which was made by king Henry who ruled in England in the period of 12th C, the charter bound the monarch in
England to follow the liberty of man, the principles of charter of liberty, then the Charter of
Liberty was incorporated in
Magna Carta in Article related Habeas Corpus, this Article
prohibited monarch being either king or queen to imprison a person or to outlaw a person or to exile a person or to kill a person without due process of law. (Criminal procedure).
D. DEVELOPMENT OF CONSTITUTION IN AFRICA
It is believed that the 1st constitution in Africa was in Mali by th leadership of Sundiata Keita, this constitution was known as Kourkoukan FougaI. This constitution regulates people for Mali and it explained the rights and responsibility of the people to the state and controlled the king of the Empire of Mali.
MODERN CONSTITUTION
1st modern constitution and written constitution in the world is believed to the the constitution of
San Marino of 1600 (sixteen hundred) known as The Leges Statute-Republicae Sanct Marine.
This constitution had 62 books, the 1st book alone had 62 Articles and such constitution
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established judiciary, executive but there was no legislature. The constitution provides for function and powers and compositions of the executive organs and judicial organ.
HISTORICAL DEVELOPMENT OF MODERN CONSTITUTION
Modern constitution of the world developed as a result of serious of struggle between aristol class feudal lords and bourgeoisie mercantile class. The aristol classfeudal class was the dominant class and controlled the political power and social rights of the people. This class later on realizes that without controlling political power their economic power was at risk. So bourgeoisie mercantile class started struggle against aristol class feudal class as a result of these struggle source of revolution occurred in various part of the world. Those revolutions paved the way for emergence of modern constitution of the world; some of the important revolution which paved the way of modern constitution is the following.
ENGLISH REVOLUTION OR ENGLISH POLITICAL REVOLUTION OF 17TH C
This was the 1st revolution in England which occurred in 17th C and this was a glorious revolution that is bloodless revolution, among other things this revolution compel monarch of
England to adopt constitution conversions example of constitution conversions include the
Petition of Right of 1900, the Acts of Settlement of 1700, the Magna Carta, this conversion become basic and fundamental law of England up to now.
AMERICAN REVOLUTION OF 17TH C
This was the second revolution in the world which occurred in North America, the revolution was in the form of American war of independence. This revolution resisted domination of
England over North America. This revolution aimed at establishing a new political order of
North America. This revolution was followed by drafting of independent constitution of America of 1788.
FRENCH REVOLUTION OF 18TH C
This was the 3rd revolution in the world which occurred in French in 1832, this revolution had a result of overthrowing the monarch state of France and replaced by democratic state. Among the
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changes introduced by democratic France was new political setup was followed by drafting of constitution of France. The constitution of France after French Revolution provided for rights of individual such as rights of movement or freedom of monarch developed freedom of worship, rights to life, right to own property, separation of powers, rights of equality.
THE ESSENCE OF REVOLUTION IN CONSTITUTION DEVELOPMENT
The revolution has two essences to the development of essence in the world that is firstly political essence and secondly economic essences.
POLITICALLY
The development sort to remove the autocratic domination of the feudal class, the mercantile class wants democracy.
ECONOMICALLY
The Revolution changed economic orders of the world that is why after development of modern constitution there was introduction of individual rights or fundamental rights which have economic essence. Some of these rights are rights to work, right to fair remuneration that is wages and salaries, right to protection to protected property, right to liberty or movement, rights of fracture that is vote and leadership, all these rights are in favour of capitalist class. It is important to note that these rights are corner stone of every modern constitution in the world, even constitution of Tanzania of 1977 incorporated these rights that is under chapter one part three of that constitution under Article 11 to 24 of the CURT, 1977.
SIGNIFICANCE OF THE CONSTITUTION
Constitution has many significance that is why modern democracy requires every state or country to have its own constitution therefore the following are the sum of significance of constitution. Roggers Cletus & Home Library
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I. Constitution allocates the functions of each organs of the state i.e. every state has three organs which are executive, legislature and judicially.
The constitution provides the powers and limitations of those powers of each organs of the state. Constitution prescribes which organs of the state are superior to the other. It is through such prescription of the powers and limitation of powers of the powers of each organs of the state where the doctrine of separation of powers is realized. The doctrine of separation of powers is one of the doctrines of modern democracy.
II. Constitution provides for the guiding principles of the government
People or citizen of the country need to know the principles which their government follows in ruling them. It is the constitution which tells people the principles which the government follows in ruling the people. Therefore constitution is important as it provides for definitive words, exact words, and precise word as the principles of the government.
III. Constitution is a political manifesto
It shows the principles of the government and type of government in power, type of government in power is known through the way the government entered into power. A government in power may be a democratic government or dictatorial government. If the government entered into power according to the constitution of the country then it is regarded as democratic government. But if the government enters into power contrary to the constitution of a particular country then it is undemocratic or dictatorial government.
Likewise the constitution will provides the powers of the organs of the state and if the constitution provides for excessive powers to the executive then that government may be undemocratic government but if the constitution balances powers among the three organs of the state then the government will be democratic government.
IV. Constitution is a doctrine or mechanism which people use to control the government
This is because the constitution provides for the procedures in which the state organs operates and at the same time provides for the ways on how people may discipline the government. One of the common ways which the people may discipline the government is
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through the general election however there are other ways which the constitution of the country provide to discipline either the executive, legislature or the judiciary. For example
Article 46A of the CURT, 1977 provides the ways to disciple the head of the state that is the president and this was to discipline the head of the state is known as Impeachment of the president and is done through legislature on behalf of the citizens. Another example is where any government (executive) leaders such as minister, deputy minister is alleged for misconduct or maladministration then may be punished through ministerial responsibility.
V. Constitution is the point of reference to the citizens or people.
It is possible that when the government or government agency functions may infringe rights of the people or citizens, without constitution people will not have a ground to claim for their infringed rights. But if there is constitution and the constitution provides for those rights then it be will easy and possible for citizens whose rights have been violated to claim it or them making reference to a certain provision of the constitution.
Example 1:
The government has power or right to acquire any land from any person for public interest and this power is conferred to the government by the Land Acquisition Act of 1967. However
Article 24(1) of the CURT, 1977 provides for right to own property and land being in one of the property therefore in case the government acquires property or land from any person under the Land Acquisition Act of 1967, the person whose land has been acquired by the government is entitled to fair and adequate compensation from the government. This right is provided under Article 24(2) of the CURT, 1977.
Example 2:
The CURT, 1977 provides for the freedom of movement as Article 17 of the CURT, 1977 so if there is any government agency or institution which curtails freedom of movement then people may claim this rights making reference to the constitution.
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Example 3:
The CURT, 1977 provides for the rights to participate in the governance of the country. Likewise the CURT, 1977 provides for the freedom of association, under freedom of association the constitution gives freedom to the people either to join or not to join the political party. These rights are provided under Article 20 & 21 of the CURT, 1977 however any person who want to participate or hold position on the government of the country and if the post is political post is required to be a member of a political party. There are three political positions in the government of Tanzania and that is councilors, members of parliament and presidential post. There is a notion that Election Act of Tanzania contravenes with the CURT, 1977, this is expressed by activist Rev. Christopher Mtikira in the famous case known as independent candidate case and that is the case of ATTORNEY GENERAL V. REV. CHRISTOPHER MTIKILA, CIVIL
APPEAL NO 45 OF 2009, COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM,
2010 (UNREPORTED), in this appeal Rev Christopher Mtikira is attacking the Election Act in reference to Article 20 & 21 of the CURT, 1977.
FUNCTIONS OF CONSTITUTION
Generally the constitution has three major functions and that is as follows;
a) Legitimizing the government.
b) Providing ideology of the government.
c) Organizing the citizen and the government.
LEGITIMIZING FUNCTION OF THE CONSTITUTION
Legitimize means justifying or legalize something according to law, the constitution setup state organs and the government and these organs perform various functions in carrying out day today responsibilities of the government to the people. In doing so the organs of the of the state must be legally formed according to the constitution of the country. So the constitution has the function of legitimizing the organs of the state or government. However before the constitution legitimizing the functions of the organs of the state the constitution itself must be legitimate
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constitution. Legitimacy of the constitution is derived from the people and this means a legitimate constitution is that one which has mass support from the people that is the constitution which is formulated by the people. In all democratic countries constitution represents interests of the people therefore it is expected that legitimate constitution should save for the benefits and interest of the people and should originate from the people. That is why the constitution of
Ethiopia of 1955 reads as follows;
“…The constitution of Ethiopia drafted by emperor for the benefits, welfare and progress of our beloved people…”
In order to ensure that the constitution gets legitimate people are to be involved in the process of drafting the constitution. Participation of people in their drafting of constitution is fully achieved if the constitution is made through referendum. The CURT, 1977 [CAP 2 R.E. 2002] was not obtained through involvement of the mass people in Tanzania. This is because was it enacted as a normal legislation of the parliament. The new constitution of Tanzania which is in the process of being drafted has element of mass participation of the people because the constitution committee collects opinion of the people all over Tanzania. However there is a concern or criticism on the legitimacy of constitution committee and another criticism as to whether real the constitution committee will daft a constitution proposal according to the opinions of the people.
Note; until new constitution of Tanzania is obtained the governing constitution of is the CURT,
1977. A legal version for constitution of Tanzania is Kiswahili version not English version. The legal constitution of Tanzania should be pronounced as follows;
“…Katiba ya Jamhuri ya Muungano wa Tanzania ya Mwaka 1977…”
This was declared so by Mwalusanya J in the case of DIRECTOR OF PUBLIC
PROSECUTIONS V. DAUDI PETE [1993] TLR 22. This was repeated the same in the case of REPUBLIC V. MBUSHUU alias DOMINIC MNYAROJE AND KALAI SANGULA
[1994] TLR 146 however for academic purpose use English version of the CURT, 1977.
Legitimizing function of the constitution is in four levels and that is as follows;
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a. Constitution and actions of the government officials
The function of the government is exposed by the actions of various government officials as follows; I. At the level of executive it is functioned by the president, vice president, cabinet, and other chief executive officers.
II. At the level of judiciary it is functioned by the justice of appeal including the Chief Justice, judges, magistrates and members of various tribunals.
III. At the level of legislature it is functioned by the members of parliament, speaker, and deputy speaker, clerk of the parliament, parliamentary draftsmen and others of the like.
The actions of these which has mentioned above and others requires to be in conformity with the constitution and other laws of the country.
Example 1:
If the president appoints any person to hold any post he must do so in according with the provisions of the constitution and if he appoints in accordance with the constitution then the appointment is legitimate and constitutionally but if he appoints contrary to the constitution then the function of the government through the president is not legitimate.
Example 2:
Functions of the government which is not legitimate can be seen as follows;
Think on the appointment of honourable Augustine Lyantongamo Mrema to be the deputy prime minister by President Alhassan Mwinyi by then. Because the post of deputy prime minister is not constitutionally provided therefore the function of the government through the president is not legitimate. Think on the decision of the Court of Appeal to declare matters which were not in court example the Court of Appeal made a decision on the case of Serikali ya Mapinduzi Zanzibar v. Machano
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Hamis Ali and 17 Others, while the Attorney general of Zanzibar had already withdrawn the case from the court.
Think of the laws which the parliament enact some of them contradicts the constitution.
b. Constitution and power of the legislature
The legislature is the organ responsible for enacting laws of the country and this is the traditional function of the legislature all over the world. In Tanzania power of the legislature to enact laws is conferred under four (4) Articles of the CURT, 1977 and that is Article 63(3)d, 97, 98 and 99.
Article 98(1) of the said constitution gives power to the parliament of Tanzania to enact laws for the purpose of amending the constitution itself. Pursuant to this power the parliament of
Tanzania has enacted many laws to amend the CURT, 1977. The last Act to amend the constitution was enacted in 2005 which had effect of making 14th constitutional amendment.
This Act was known as follows;
“…Sheria ya Mabadiliko ya Kumi na Nne ya Katiba ya Jamhuri ya Muungano wa Tanzania ya
Mwaka 1977 Namba 1 ya Mwaka 2005…”
Although the constitution gives power to the parliament to enact laws however the laws enacted by the parliament shouldn’t contradict any provision of the constitution. In other words laws enacted by the parliament should be in accordance with the constitution. This is because the parliament has no inherent power to enact laws but that power is derivered from the constitution.
In case there is any Act enacted by the parliament which either the whole of it contravenes the constitution or sum or several contradict with the constitution the judiciary has power to declare either the whole of the statute or those provisions which contradict the constitution to be unconstitutional. This means such provisions or statutes do not have legitimacy according to the constitution. There are several examples of the cases in which the judiciary of Tanzania being it high court or court of appeal declared some statutes to be unconstitutional. Refer the case of
LAUSA ALFAN SALUM AND 106 OTHERS V. MINISTER FOR LANDS, HOUSING
AND URBAN DEVELOPMENT AND NATIONAL HOUSING CORPORATION [1994]
TLR 237
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c. Constitution and the judiciary
The judiciary has legal function of interpretation of law and administration of justice. In the process of interpretation of laws and administration of justice the judiciary has power to declare any law invalid or unconstitutional; also the judiciary may declare any Act of executive or legislature to be unconstitutional or invalid. However for the judiciary to have these powers of interpretation of law and administration of justice the judiciary itself must operate within the legitimacy of the constitution. For that the judiciary cannot declare the constitution invalid and this is because to declare the constitution invalid will make the judiciary itself without base to stand on. In Tanzania this was stated by the judiciary of Tanzania in the case of Honourable
ATTORNEY GENERAL V. REV. CHRISTOPHER MTIKILA, CIVIL APPEAL NO 45
OF 2009, COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM, 2010
(UNREPORTED).
d. Constitution and the political system
Political system is legitimate when it is supported by the people and enshrined in the constitution. Before 1992 Tanzania has a monoparty state or country and this was stated in the
CURT, 1977 by then. Following constitution amendment from 1992 Tanzania become a multiparty state therefore a political system of the United Republic of Tanzania is Multipartism.
This Multipartism has support of the people and it is enshrined or expressly under Article 3 of the CURT, 1977. The political system of Tanzania therefore acquires a quality of constitution legitimacy and this is because the system has constitutional recognition and mass support from the people and that is Tanzanian.
People under Multipartism posses political authority and they effectively participate in various political activities and they exercise control of political decisions. Political system of Tanzania controls political decision through free and fair general election which are conducted after every five years. People control and exercise political control for the country under Article 5 of the
CURT, 1977. This Article provides for franchise or freedom to vote.
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The constitution of Tanzania provides for the leaders who are obtained through general election that is the president of the United Republic of Tanzania and the president of the Revolutionary of
Zanzibar, members of parliament and members of the House of Representatives of Zanzibar and the counselors. The general election for these leaders are conducted after five (5) years and at is according to the election laws of Tanzania. Therefore political system of Tanzania has constitutional legitimacy.
IDEOLOGICAL FUNCTION OF THE CONSTITUTION
Ideology is the set of ideas or principles or doctrine of a state. In constitutional law ideology is the set of aims and ideas of a state in a political sector. It includes comprehensive version as a way of looking at things and also it involves philosophical tendency of the state. The constitution of the country always state out the ideology which the state follows and which the state believe in. example the CURT, 1977 [CAP 2 R.E. 2002] has provision for the ideology of the state.
There are two ideologies which Tanzania follows according to the constitution and that is the first one is that Tanzania is the state which adheres to the principles of democracy and social justice and second one it is the country which follows socialist ideology. This has been provided under Article 8 and 9 of the CURT, 1977.
ORGANIZING FUNCTION OF THE STATE
The constitution organizes the government by providing the structure of that particular government. This means the constitution of a country provides composition for various organs of the state. Commonly they are only three organs of the state that is the judiciary, executive and legislature. Again the constitution provides for the powers and limitations of those powers of each organs of the state.
EXECUTIVE
In the executive the constitution provides for the head of the state and this head of the state may be the president, prime minister or other depending on the nature of the state. The president as the head of the state has given powers to promulgate laws, appoint minister and other chief
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executive officer, to abolish or establish any office and any other matters. All these are conferred to the present by the CURT, 1977.
JUDICIARY
As for the judiciary CURT, 1977 provides as the organ for interpretation of laws and administration of justice in the country. Therefore judiciary is the trial organ in the country. In
Tanzania the judiciary consists of the Court of Appeal of Tanzania as a supreme and final appellate court, High Court of Tanzania Mainland and High Court of Zanzibar., the Resident
Magistrates’ Court and District Court, the Primary Courts and other tribunal like Court Marshall for army, Land Tribunal, Labour Tribunal, Tax Tribunal and others of the like. Judiciary includes also prosecutions organs and there are two prosecutions organs firstly the office of
Attorney General that is AG Chamber and is responsible for civil matters and other legal issues of the state and secondly the office of the Director of Public Prosecutions (DPP) and deal with criminal matters. The office of DPP is the constitutional feature or office established under
Article 59B of the CURT, 1977.
LEGISLATURE
As for the legislature the CURT, 1977 established the parliament of Tanzania and the parliament of Tanzania is in two levels that is firstly is the parliament and secondly the national assembly.
These are established under chapter III of the CURT, 1977 and the constitution provides fro the composition of the legislature in Tanzania and types of composition. Those types of composition of parliament of Tanzania are seen as follows;
a) Members of parliament from area of constituencies or direct elected by the people from their constituencies. b) Members of the parliament nominated by the president of The United Republic of Tanzania.
c) Other members of parliament are members of parliament from special groups.
d) Members of parliament from special seats.
e) Members of parliament from Zanzibar.
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f) Members of parliament by virtue of their offices or members if parliament of ex-officio such as Attorney General.
CLASSIFICATION OF CONSTITUTION
INTRODUCTION
There are many ways to classify constitution some classify constitution according to their mode of making while others classify constitution according to the nature of the government. However there are two major ways to classify the constitution that is firstly old classification of constitution and secondly modern way classification of constitution.
OLD WAY OF CLASSIFICATION OF CONSTITUTION
Old way of classification of constitution was the classification in ancient or old way and it is the classification of constitution which was propound by Ancient philosophers including Aristotle,
Plato, Cicero. In old classification there are good constitution and bad constitution.
Good constitution is constitution which are public participatory, democratic and which guarantee individual rights. Bad constitution on the other hand is those constitutions which concentrate much powers to the leaders. These are undemocratic constitution.
MODERN CLASSIFICATION OF CONSTITUTION
Modern classification of constitution was introduced after the emergence of bourgeoisie constitutional lawyers. These constitutional lawyers include Dicey, Montesquieu, Russell Hugo
Grotius and others of the like. According to these scholars modern classification of constitution depends and is determined by distribution of state powers or state authorities. This is the most preferred classification of constitution.
TYPES OF CONSTITUTION IN MODERN CLASSIFICATION
Under modern classification of constitution there are six types of constitution and these are as follows; I.
Flexible and Rigid constitution.
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II.
Written and Unwritten constitution.
III.
Monarch and Republic constitution.
IV.
Federal and Unitary constitution.
V.
Presidential and Parliamentary constitution.
VI.
Ordinary and Supreme constitution.
I.
FLEXIBLE AND RIGID CONSTITUTION
Flexibility or rigidity of the constitution is based on amendment of the constitution. Flexible constitution is the type of constitution which is capable and easily to amend it while Rigid constitution means the constitution which is either not amendable at all or its amendment require complex procedure. It is important to not that there is no constitution in the world which is not amendable. Flexible constitution is the one which is easily amendable. It is the type of constitution which doesn’t require special procedure or steps in order to amend such constitution. It is the constitution which may be amended at any time when the need arise. Flexible constitution makes such constitution to be much more responsive to the political and social changes of the country.
Rigid constitution on the other hand is the type of constitution which is not easily amendable. It is the constitution which its amendment requires complex procedure and such a constitution are always not responsive to the social and political changes.
METHODS OF AMENDING THE CONSTITUTION
The methods of amending the constitution vary in different countries. Some of the methods of amending the constitution are firstly Passing a national referendum and secondly Passing Act of parliament to amend the constitution. In these ways of amending the constitution especially in the second way the legislature of the country sit in special form known as constituent assembly and this is very common in France and in Tanzania. In Tanzania the legislature has power to amend the CURT, 1977 and the legislature is required to sit with a prescribed majority or
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quorum of the members of the parliament, this is provided under Article 98(1)a & b of the
CURT, 1977. Article 98(1) a of the CURT, 1977 provides for the amendment of the constitution for non union matters that is matters concerning only mainland Tanzania or Tanganyika and according to this provision in order to amend the constitution on non union matters the proposed amendment must get support of 2/3 of members of parliament from Mainland Tanzania or
Tanganyika.
Article 98(1) b of the CURT, 1977 provides for the amendment of the constitution for union matters and according to this provision requires that the proposed amendment must get support of 2/3 of members of parliament from Mainland Tanzania and Zanzibar. The list of union matters are prescribed in the list two (2) of the 2nd schedule of the CURT, 1977, and non union matters are prescribed in the list one (1) of the 2nd schedule of the CURT, 1977. Refer the case of
MALIM SHEIF HAMAD V. SERIKALI YA MAPINDUZI YA ZANZIBAR (“SMZ”)
[1998] TLR 43.
EXTENT OF
THE
POWERS
OF
THE
LEGISLATURE
TO AMEND
THE
CONSTITUTION
Constitutional law allows the legislature to amend the constitution however this power has limitations. The limitation is that the legislature cannot amend special/basic features of the constitution. Some of the constitutions of some countries has express provisions which limit powers of the legislature to amend special features of the constitution example the Constitution of German Federal Republic of 1990 and the Constitution of the Republic of Saiplas of 1960 have provisions which prohibit the legislature to amend basic features of those constitution.
In India limitation of the legislature to amend its constitution is expressly in the judgment in the case of KASAVARANDA BHARATI V. STATE OF KERARA [1973] AIR 146,this was the constitutional case decided by the Supreme Court of India and such court held that the parliament of India may amend the constitution of India but it cannot amend the basic features of the Constitution of India, the judges in this case went further to point out to describe those essential features or articles of the constitution of India as follows;
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a) The supremacy of the constitution.
b) The Republican and democratic form of government.
c) The Secular character of the government of India.
d) Maintenance of separation of powers.
e) Federal character of constitution.
AMENDMENT OF THE BASIC FEATURES OF THE CONSTITUTION OF TANZANIA
In Tanzania there are two phases dealing with amendment of the basic features of the constitution in Tanzania.
The first phase is before the decision of the Court of Appeal in the case of ATTORNEY
GENERAL V. REV. CHRISTOPHER MTIKILA, CIVIL APPEAL NO 45 OF 2009,
COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM, 2010 (UNREPORTED) and the second phase is after the decision of the Court of Appeal ATTORNEY GENERAL V.
REV. CHRISTOPHER MTIKILA, CIVIL APPEAL NO 45 OF 2009, COURT OF
APPEAL OF TANZANIA AT DAR ES SALAAM, 2010 (UNREPORTED)
Before the decision of the Court of Appeal in Mtikra’s case the judiciary of Tanzania particularly the High Court of Tanzania was in the opinion that the parliament of Tanzania can amend the
CURT, 1977 but it couldn’t amend those Articles providing for basic features of the constitution.
This was expressed by Lugakingira J as then he was in the case of REV. CHRISTOPHER
MTIKILAV. ATTORNEY GENERAL [1995] TLR 31, in this case Lugakingira J held that;
“…The parliament is given wide powers to amend the constitutional provisions but those powers of the parliament can be only exercised subject to limitations, Lugakingira J went on to say that one of the constitution provisions which the parliament cannot amend is the ethics of human rights that is the basic features of the constitution…”
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However the decision of the Court of Appeal in the case of Mtikira in 2009 has overruled the decision of the High Court of Lugakingira J and the Court of Appeal sitting at Dar es Salaam with seven of justice of appeal stated as follows;
“…Powers of the parliament to amend the CURT, 1977 is unlimited and it said that the parliament may amend any Article of the constitution and the judiciary has no power to limit such amendment. But the only power of the judiciary is to see if those constitutional amendment meet prescribed requirement under Article 98(1)a &b as the case may be… the court continue to say once the judiciary satisfy itself that those requirements has been fulfilled then the judiciary cannot question illegality or extent of the amendment of the constitution. The court of Appeal concluded the matter by stating that after all the doctrine of basic features of the constitution is not part of the constitutional law of Tanzania…”
II.
WRITTEN AND UNWRITTEN CONSTITUTION
Written constitution is used to describe constitution which is in written form, written constitution means the constitution which is codified in a single constitutional document. The CURT, 1977, the Constitution of the United Republic of Kenya of 2010, the Constitution of the United Republic of South Africa of 1996 are few examples of written constitutions in the world. Written constitution is sometimes referred as formal constitution and most constitutions in the world are written constitution.
Unwritten constitution on the other hand are constitution which is not codified in writing, it is the constitution which is not in written form. Unwritten constitution is the type of constitution which is not codified in a single constitutional document. Unwritten constitution is sometimes referred as informal constitution however unwritten constitution doesn’t mean oral constitution.
Unwritten constitution means the constitutional is put in writings but in there are several documents which contain constitutional principles of the country that is why unwritten constitution is called un codified constitution or oral constitution. Unwritten constitution is not very common type of constitution in the world. The best example of unwritten constitution in the world is the constitution of the United Great Britain (UK). The constitution of England is
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unwritten constitution in the sense that there are several documents which contain constitutional principles or rules which are used to rule England. Those documents are not codified in a single bundle of constitution document but they are applied as the constitutional document of England.
The following are some of the documents in England which contain constitutional rules or principle as follows;
a) Acts of parliament
There are several Acts of parliament in England which contain constitutional provisions examples of Acts of parliaments in England which contain constitution principles are as follows;
The Petition of Right Act of 1688
The Act of Settlement of 1700
The Magna Carta of 1215
The Instrument of Government of 1653
b) International treaties
Important international treaties which England has ratified and domesticated are part of constitutional law of England example of such international treaties includes The European convention on Human Rights of 1950. This convention has ratified and domesticated in England through the Human Right Act of 1998.
c) European union laws
European Union laws are the sub category of international law. They provide for various matters, some of which are of constitutional importance. As England is a member of European Union then she is bound to adheres and follow the European Union laws. Therefore European Union laws are part of constitutional law in England.
d) Precedents
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Precedents are judgments of the superior courts of England which is bound the inferior courts in
England. Some judgments delivered by the superior courts of England create constitutional principles or rules and so they are part of the constitution of England. Example the decision in the case of EUTICK V. CARRINGTON [1963] ECR 1is very important precedent in constitutional law in England. Apart from these documents common law of England has developed by common law courts is also the source of constitutional law of England.
III.
FEDERAL AND UNITARY CONSTITUTION
Federal constitution is the result of union or unity of two or more state. Two or more states may unite and share sovereignty under federal government. It is the constitutional which describes state powers vertically and horizontally among the states united.
Unitary constitution on the other hand is the type of constitution under which two or more independent states unite and surrender their legislative power to one organ or legislature. Under unitary constitution the states united continue to maintain their sovereignty but surrender only the legislative powers to one legislature.
The constitution of England is argued to be Federal or quasi federal constitution due to the existence of revolutions or decentralization of some of the legislative power to the state united.
But most of the constitutional lawyers prefer to classify constitution of England as Unitary constitution and this is because England is the union of several states and those states have surrendered their sovereignty in favour of one sovereign state know as Great Britain.
The CURT of 1977 is argued to be unitary constitution and this is because this constitution of
1977 is the result of union of two independent states of Tanganyika and Zanzibar but one state continue to maintain it’s sovereign.
IV.
PRESIDENTIAL AND PARLIAMENTARY CONSTITUTION
Presidential constitution is the constitution which describes the head of the state being the president. This president is obtained through general election or in any other ways. Under presidential constitution the executive organ of the state is more powerful than other organs of the state. Again presidential constitution describes the head of the executive being the head of
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the state. This head of the executive who is also head of the state is not direct member of the parliament. The CURT, 1977 is the presidential constitution because the head of the state and head of the government of Tanzania is the president as provided for under Article 33(2) of the
CURT, 1977.
Parliamentary constitution is the type of constitution whereby the head of the state is the prime minister. This prime minister is obtained through general election of the country and he is a member of parliament of that particular country. Under parliamentary constitution the prime minister is directly responsible and accountable to the parliament of that country. For that the parliament has power to dismiss the prime minister through passing the vote of no confidence against him. A good example of parliamentary constitution is the constitution of German and of
England. In German there is a president however this president is the ceremonial head of the state (titular) but he has no executive powers so the executive powers in German are vested in the prime minister titled as chancellor. In England there is a monarch being a queen or king but again these queens or king is a ceremonial figure since the monarch in England has no executive power and the executive power is vested to the prime minister.
V.
MONARCH AND REPUBLIC CONSTITUTION
Monarch constitution is the type of constitution under which the country is headed by monarch and that is either queen or king as the case may be. However in most cases but not in all the monarch is the head of the state is the ceremonial head of the state since he has no executive powers. Under monarch constitution the executive head of the country is the prime minister.
Therefore under monarch constitution the prime minister is the one who exercise political power and important decisions of the country. Under monarch constitution the monarch has few powers and most of them are traditional powers and not executive powers. Example of such powers power to declare war or state of emergence, power to issue pardon that is prerogative of mercy, power to make treaties, power to dissolve the parliament at the end of its tenure.
In very few circumstances monarch may play an active political role example according to constitution of England which is monarch constitution where during general election two
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political parties they get equal votes then the monarch will vote for one party and declare that party a ruling party and this happened in England in 1974. Under monarch constitution the king or queen are obtained through hereditary system. There are few countries in the world which are under monarch constitution such as England, Spain and most of Scandinavian countries.
Republic constitution is the type of constitution in which the sovereign of the state originated from the people. This people then delegate their powers to their leaders to rule on their behalf.
Under Republic constitution people hold political power or authorities and they exercise their political power through general elections. In these general elections people vote for various leaders depending on the nature of the constitution.
The CURT, 1977 is the Republic Constitution because Article 8(1) of the said constitution declared that sovereignty of the United Republic of Tanzania resides from the people of
Tanzania. Under this constitution people of Tanzania exercise political powers through general elections, the general election is held every five (5) years time. In this general election people of
Tanzania vote for their representatives and the executive head of the state. Representatives are two that is members of parliament and councilors while for the head of executive people vote for the president.
VI.
ORDINARY AND SUPREME CONSTITUTION
Ordinary constitution is the type of constitution which has ordinary legal power or form or force.
It is the constitution which its legal force or power is the same as of the ordinary law of the country. Supreme constitution is the type of constitution which has legal power above all other laws of the country. It is the constitution which is the source of all laws of the country and those other laws of the country derives their legitimacy and legality from the constitution. These constitutions are also known as grundnorm or juscommuni. The CURT, 1977 is the supreme constitution. This is proved by the judicial interpretation in various cases in Tanzania such as the case of LAUSA
ALFAN SALUM AND 106 OTHERS V. MINISTER FOR LANDS, HOUSING AND
URBAN DEVELOPMENT AND NATIONAL HOUSING CORPORATION [1994] TLR
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237 and also the case of MUNUO V. JUDGE INCHARGE & ATTORNEY GENERAL
[1998] TLR 464
Also Article 64(5) of the CURT, 1977 provides supremacy of the constitution and any law contravenes with it will be declared unconstitutional hence null and void.
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INTRODUCTION
Constitution is the subject which deals with foundations or basic law of the nation. It is a subject which deals with the interpretation and application of constitution of the nation/country or state.
All most every state or country in the world has its own constitution. Every country has its own constitution on either written or unwritten constitution of a country or state or nation is always regarded as highest and supreme law of a country.
MEANING OF CONSTITUTION
There is no single definition which is conclusively acceptable to be the most meaning of the tern constitution therefore it may be defined in various ways. There are many definitions of the term constitution. It is anniversary noted that defining the tern constitution is little difficult and ambiguous and to prove this professor Ingo Von Munch, professor in law has this to say;
“…The importance of constitution is beyond doubt but the definition of the term constitution has remained questionable to the meaning of the word constitution is ambiguous…”
Also professor Wambary of school of law of University of Dar es Salaam in Tanzania contributes the concept of defining the term constitution is difficult. The professor was invited to deliver a paper in a workshop organized by the East Africa Law Society. The theme of the workshop was The Constitutional Reforms of East African Countries of East Africa Integration.
In this paper professor Wambary stated that he will give meaning of constitution however throughout the paper from page one to the last he didn’t give the meaning of the term constitution. Professor did give the meaning of the concept constitutionalism, despite of these difficulties to define the term constitution as seen in these professors’s work there are some of the definitions or meanings of the term constitution which are used.
I.
ETYMOLOGY DEFINITION
Etymology is the science which deals with studying on the origin of words, etymologically the
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term constitution originated from French word known as ‘Constitutio’ which in English means important law of the country or nation therefore from etymological point of view constitution means the important and highest law of the country.
II.
LITERATURE DEFINITION
There are various textbooks which have different meanings of the term constitution among definition from text books are that constitution is a document having special legal sanctity (holy thing). These documents set out framework and principle functions of the organs of the state and it also declares principles or rules governing the operations of those organs of the state which are executive, legislature and judiciary. These definitions has one weakness that based on presumption that all constitutions of the nations are in document or written form therefore they may create ambiguity as it is understood that there are some of constitution of the country in the world are unwritten.
III.
ABSTRACT AND CONCRETE DEFINITION
The term constitution is used in two different senses that is abstract and concrete sense. In abstract sense constitution means system of law, customs and conversions which define composition and powers of the organs of the state and regulates the relations of various state organs to one either and relations of the state organs to private citizens. In concrete sense constitution means the document in which the most important laws of the land are authoritatively. From the abstract and concrete senses there are two types or form of constitution and that is written and unwritten constitution. The abstract meaning suggests the possibility of having unwritten constitution and concrete sense suggests the possibility of having written constitution. So generally constitution may be written or unwritten.
IV.
JUDICIAL DEFINITION
Honourable Damian Lubuva, one of the prominent judges of Tanzania had one definition of the term constitution and according to him the term constitution means the fundamental bases on law of the land.
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GENESIS OF CONSTITUTION
The origin of constitution can be traced from different stages or phrases of development of human kind in the world. As development of human society was not uniform also the development of constitution was not uniform. This means in various places or states constitution developed in different forms and style. The following are some of the account of the development of constitution in the world.
A. DEVELOPMENT OF CONSTITUTION IN CONTINENTAL EUROPE
The earliest model of constitution in continental Europe is believed to exist in Greece and this constitution was known as the scribes of drago was one of the kings of ancient city states who lived as far back 621 BC. DRAGO wrote on Scribes which known as the laws of the city states of anthens and this was the constitution of the anthens of the city states of Greece, it was believed to be the most oldest constitution in continental Europe.
Being old it was cruelty and under democratic, one of the features which show that it was cruel was that the constitution prescribed death penalty for all offences. The second constitution was the Solon Constitution which was formulated by the king Solomon, another rule of anthens. It was believed to be a better constitution compared to DRACO constitution. One of its features which make it to be better was it declared and prescribed the rights of individuals such as right to own property, freedom of liberty. Most of these rights prescribed in Solomonian constitution are the corner stone of the modern constitution example fundamental rights of the people or human rights. Despite the fact that Solomonian constitution was better than DRACON constitution, it has a weakness that is one it was requiring ruling class to be determined by wealth. This was Solomonian constitution in other words was the constitution which was plutocracy. The Solomonian constitution was formed by King Cleisthenes, the reform were made sometime in 508 BC, the major reform was to make Solomonian constitution a much more democratic one. Apart from anthens another society in Europe to have constitution in earliest period is Rome city states have constitution known as twelve (12) tables.
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B. CONSTITUTION DEVELOPMENT IN ASIA
The history believed that the 1st constitution in Asia is in Japan known as Seventeen (17) Articles
Constitution prepared by Prince Shotock of Japan, Japanese constitution influenced by religious teachings therefore 11th Articles of constitution emphasized on religious morality rather than government. That constitution followed by the constitution of Medina known as Medina Charter.
Medina Charter was drafted by prophet Mohammed (PBAH) upon him 622 AD, the Medina
Charter was the highest constitution which guarantee the basic rights to all people in Asia. It provide for freedom of worship, freedom of religious and religious toleration. Medina Charter emphasis on judicial process regarding the rules of welfare, taxation, criminal justice and civil dispute settlement.
C. CONSTITUTIONAL DEVELOPMENT IN ENGLAND
The 1st constitution in England is believed to be Charter of Liberty of 1100 which was made by king Henry who ruled in England in the period of 12th C, the charter bound the monarch in
England to follow the liberty of man, the principles of charter of liberty, then the Charter of
Liberty was incorporated in
Magna Carta in Article related Habeas Corpus, this Article
prohibited monarch being either king or queen to imprison a person or to outlaw a person or to exile a person or to kill a person without due process of law. (Criminal procedure).
D. DEVELOPMENT OF CONSTITUTION IN AFRICA
It is believed that the 1st constitution in Africa was in Mali by th leadership of Sundiata Keita, this constitution was known as Kourkoukan FougaI. This constitution regulates people for Mali and it explained the rights and responsibility of the people to the state and controlled the king of the Empire of Mali.
MODERN CONSTITUTION
1st modern constitution and written constitution in the world is believed to the the constitution of
San Marino of 1600 (sixteen hundred) known as The Leges Statute-Republicae Sanct Marine.
This constitution had 62 books, the 1st book alone had 62 Articles and such constitution
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established judiciary, executive but there was no legislature. The constitution provides for function and powers and compositions of the executive organs and judicial organ.
HISTORICAL DEVELOPMENT OF MODERN CONSTITUTION
Modern constitution of the world developed as a result of serious of struggle between aristol class feudal lords and bourgeoisie mercantile class. The aristol classfeudal class was the dominant class and controlled the political power and social rights of the people. This class later on realizes that without controlling political power their economic power was at risk. So bourgeoisie mercantile class started struggle against aristol class feudal class as a result of these struggle source of revolution occurred in various part of the world. Those revolutions paved the way for emergence of modern constitution of the world; some of the important revolution which paved the way of modern constitution is the following.
ENGLISH REVOLUTION OR ENGLISH POLITICAL REVOLUTION OF 17TH C
This was the 1st revolution in England which occurred in 17th C and this was a glorious revolution that is bloodless revolution, among other things this revolution compel monarch of
England to adopt constitution conversions example of constitution conversions include the
Petition of Right of 1900, the Acts of Settlement of 1700, the Magna Carta, this conversion become basic and fundamental law of England up to now.
AMERICAN REVOLUTION OF 17TH C
This was the second revolution in the world which occurred in North America, the revolution was in the form of American war of independence. This revolution resisted domination of
England over North America. This revolution aimed at establishing a new political order of
North America. This revolution was followed by drafting of independent constitution of America of 1788.
FRENCH REVOLUTION OF 18TH C
This was the 3rd revolution in the world which occurred in French in 1832, this revolution had a result of overthrowing the monarch state of France and replaced by democratic state. Among the
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changes introduced by democratic France was new political setup was followed by drafting of constitution of France. The constitution of France after French Revolution provided for rights of individual such as rights of movement or freedom of monarch developed freedom of worship, rights to life, right to own property, separation of powers, rights of equality.
THE ESSENCE OF REVOLUTION IN CONSTITUTION DEVELOPMENT
The revolution has two essences to the development of essence in the world that is firstly political essence and secondly economic essences.
POLITICALLY
The development sort to remove the autocratic domination of the feudal class, the mercantile class wants democracy.
ECONOMICALLY
The Revolution changed economic orders of the world that is why after development of modern constitution there was introduction of individual rights or fundamental rights which have economic essence. Some of these rights are rights to work, right to fair remuneration that is wages and salaries, right to protection to protected property, right to liberty or movement, rights of fracture that is vote and leadership, all these rights are in favour of capitalist class. It is important to note that these rights are corner stone of every modern constitution in the world, even constitution of Tanzania of 1977 incorporated these rights that is under chapter one part three of that constitution under Article 11 to 24 of the CURT, 1977.
SIGNIFICANCE OF THE CONSTITUTION
Constitution has many significance that is why modern democracy requires every state or country to have its own constitution therefore the following are the sum of significance of constitution. Roggers Cletus & Home Library
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I. Constitution allocates the functions of each organs of the state i.e. every state has three organs which are executive, legislature and judicially.
The constitution provides the powers and limitations of those powers of each organs of the state. Constitution prescribes which organs of the state are superior to the other. It is through such prescription of the powers and limitation of powers of the powers of each organs of the state where the doctrine of separation of powers is realized. The doctrine of separation of powers is one of the doctrines of modern democracy.
II. Constitution provides for the guiding principles of the government
People or citizen of the country need to know the principles which their government follows in ruling them. It is the constitution which tells people the principles which the government follows in ruling the people. Therefore constitution is important as it provides for definitive words, exact words, and precise word as the principles of the government.
III. Constitution is a political manifesto
It shows the principles of the government and type of government in power, type of government in power is known through the way the government entered into power. A government in power may be a democratic government or dictatorial government. If the government entered into power according to the constitution of the country then it is regarded as democratic government. But if the government enters into power contrary to the constitution of a particular country then it is undemocratic or dictatorial government.
Likewise the constitution will provides the powers of the organs of the state and if the constitution provides for excessive powers to the executive then that government may be undemocratic government but if the constitution balances powers among the three organs of the state then the government will be democratic government.
IV. Constitution is a doctrine or mechanism which people use to control the government
This is because the constitution provides for the procedures in which the state organs operates and at the same time provides for the ways on how people may discipline the government. One of the common ways which the people may discipline the government is
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through the general election however there are other ways which the constitution of the country provide to discipline either the executive, legislature or the judiciary. For example
Article 46A of the CURT, 1977 provides the ways to disciple the head of the state that is the president and this was to discipline the head of the state is known as Impeachment of the president and is done through legislature on behalf of the citizens. Another example is where any government (executive) leaders such as minister, deputy minister is alleged for misconduct or maladministration then may be punished through ministerial responsibility.
V. Constitution is the point of reference to the citizens or people.
It is possible that when the government or government agency functions may infringe rights of the people or citizens, without constitution people will not have a ground to claim for their infringed rights. But if there is constitution and the constitution provides for those rights then it be will easy and possible for citizens whose rights have been violated to claim it or them making reference to a certain provision of the constitution.
Example 1:
The government has power or right to acquire any land from any person for public interest and this power is conferred to the government by the Land Acquisition Act of 1967. However
Article 24(1) of the CURT, 1977 provides for right to own property and land being in one of the property therefore in case the government acquires property or land from any person under the Land Acquisition Act of 1967, the person whose land has been acquired by the government is entitled to fair and adequate compensation from the government. This right is provided under Article 24(2) of the CURT, 1977.
Example 2:
The CURT, 1977 provides for the freedom of movement as Article 17 of the CURT, 1977 so if there is any government agency or institution which curtails freedom of movement then people may claim this rights making reference to the constitution.
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Example 3:
The CURT, 1977 provides for the rights to participate in the governance of the country. Likewise the CURT, 1977 provides for the freedom of association, under freedom of association the constitution gives freedom to the people either to join or not to join the political party. These rights are provided under Article 20 & 21 of the CURT, 1977 however any person who want to participate or hold position on the government of the country and if the post is political post is required to be a member of a political party. There are three political positions in the government of Tanzania and that is councilors, members of parliament and presidential post. There is a notion that Election Act of Tanzania contravenes with the CURT, 1977, this is expressed by activist Rev. Christopher Mtikira in the famous case known as independent candidate case and that is the case of ATTORNEY GENERAL V. REV. CHRISTOPHER MTIKILA, CIVIL
APPEAL NO 45 OF 2009, COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM,
2010 (UNREPORTED), in this appeal Rev Christopher Mtikira is attacking the Election Act in reference to Article 20 & 21 of the CURT, 1977.
FUNCTIONS OF CONSTITUTION
Generally the constitution has three major functions and that is as follows;
a) Legitimizing the government.
b) Providing ideology of the government.
c) Organizing the citizen and the government.
LEGITIMIZING FUNCTION OF THE CONSTITUTION
Legitimize means justifying or legalize something according to law, the constitution setup state organs and the government and these organs perform various functions in carrying out day today responsibilities of the government to the people. In doing so the organs of the of the state must be legally formed according to the constitution of the country. So the constitution has the function of legitimizing the organs of the state or government. However before the constitution legitimizing the functions of the organs of the state the constitution itself must be legitimate
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constitution. Legitimacy of the constitution is derived from the people and this means a legitimate constitution is that one which has mass support from the people that is the constitution which is formulated by the people. In all democratic countries constitution represents interests of the people therefore it is expected that legitimate constitution should save for the benefits and interest of the people and should originate from the people. That is why the constitution of
Ethiopia of 1955 reads as follows;
“…The constitution of Ethiopia drafted by emperor for the benefits, welfare and progress of our beloved people…”
In order to ensure that the constitution gets legitimate people are to be involved in the process of drafting the constitution. Participation of people in their drafting of constitution is fully achieved if the constitution is made through referendum. The CURT, 1977 [CAP 2 R.E. 2002] was not obtained through involvement of the mass people in Tanzania. This is because was it enacted as a normal legislation of the parliament. The new constitution of Tanzania which is in the process of being drafted has element of mass participation of the people because the constitution committee collects opinion of the people all over Tanzania. However there is a concern or criticism on the legitimacy of constitution committee and another criticism as to whether real the constitution committee will daft a constitution proposal according to the opinions of the people.
Note; until new constitution of Tanzania is obtained the governing constitution of is the CURT,
1977. A legal version for constitution of Tanzania is Kiswahili version not English version. The legal constitution of Tanzania should be pronounced as follows;
“…Katiba ya Jamhuri ya Muungano wa Tanzania ya Mwaka 1977…”
This was declared so by Mwalusanya J in the case of DIRECTOR OF PUBLIC
PROSECUTIONS V. DAUDI PETE [1993] TLR 22. This was repeated the same in the case of REPUBLIC V. MBUSHUU alias DOMINIC MNYAROJE AND KALAI SANGULA
[1994] TLR 146 however for academic purpose use English version of the CURT, 1977.
Legitimizing function of the constitution is in four levels and that is as follows;
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a. Constitution and actions of the government officials
The function of the government is exposed by the actions of various government officials as follows; I. At the level of executive it is functioned by the president, vice president, cabinet, and other chief executive officers.
II. At the level of judiciary it is functioned by the justice of appeal including the Chief Justice, judges, magistrates and members of various tribunals.
III. At the level of legislature it is functioned by the members of parliament, speaker, and deputy speaker, clerk of the parliament, parliamentary draftsmen and others of the like.
The actions of these which has mentioned above and others requires to be in conformity with the constitution and other laws of the country.
Example 1:
If the president appoints any person to hold any post he must do so in according with the provisions of the constitution and if he appoints in accordance with the constitution then the appointment is legitimate and constitutionally but if he appoints contrary to the constitution then the function of the government through the president is not legitimate.
Example 2:
Functions of the government which is not legitimate can be seen as follows;
Think on the appointment of honourable Augustine Lyantongamo Mrema to be the deputy prime minister by President Alhassan Mwinyi by then. Because the post of deputy prime minister is not constitutionally provided therefore the function of the government through the president is not legitimate. Think on the decision of the Court of Appeal to declare matters which were not in court example the Court of Appeal made a decision on the case of Serikali ya Mapinduzi Zanzibar v. Machano
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Hamis Ali and 17 Others, while the Attorney general of Zanzibar had already withdrawn the case from the court.
Think of the laws which the parliament enact some of them contradicts the constitution.
b. Constitution and power of the legislature
The legislature is the organ responsible for enacting laws of the country and this is the traditional function of the legislature all over the world. In Tanzania power of the legislature to enact laws is conferred under four (4) Articles of the CURT, 1977 and that is Article 63(3)d, 97, 98 and 99.
Article 98(1) of the said constitution gives power to the parliament of Tanzania to enact laws for the purpose of amending the constitution itself. Pursuant to this power the parliament of
Tanzania has enacted many laws to amend the CURT, 1977. The last Act to amend the constitution was enacted in 2005 which had effect of making 14th constitutional amendment.
This Act was known as follows;
“…Sheria ya Mabadiliko ya Kumi na Nne ya Katiba ya Jamhuri ya Muungano wa Tanzania ya
Mwaka 1977 Namba 1 ya Mwaka 2005…”
Although the constitution gives power to the parliament to enact laws however the laws enacted by the parliament shouldn’t contradict any provision of the constitution. In other words laws enacted by the parliament should be in accordance with the constitution. This is because the parliament has no inherent power to enact laws but that power is derivered from the constitution.
In case there is any Act enacted by the parliament which either the whole of it contravenes the constitution or sum or several contradict with the constitution the judiciary has power to declare either the whole of the statute or those provisions which contradict the constitution to be unconstitutional. This means such provisions or statutes do not have legitimacy according to the constitution. There are several examples of the cases in which the judiciary of Tanzania being it high court or court of appeal declared some statutes to be unconstitutional. Refer the case of
LAUSA ALFAN SALUM AND 106 OTHERS V. MINISTER FOR LANDS, HOUSING
AND URBAN DEVELOPMENT AND NATIONAL HOUSING CORPORATION [1994]
TLR 237
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c. Constitution and the judiciary
The judiciary has legal function of interpretation of law and administration of justice. In the process of interpretation of laws and administration of justice the judiciary has power to declare any law invalid or unconstitutional; also the judiciary may declare any Act of executive or legislature to be unconstitutional or invalid. However for the judiciary to have these powers of interpretation of law and administration of justice the judiciary itself must operate within the legitimacy of the constitution. For that the judiciary cannot declare the constitution invalid and this is because to declare the constitution invalid will make the judiciary itself without base to stand on. In Tanzania this was stated by the judiciary of Tanzania in the case of Honourable
ATTORNEY GENERAL V. REV. CHRISTOPHER MTIKILA, CIVIL APPEAL NO 45
OF 2009, COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM, 2010
(UNREPORTED).
d. Constitution and the political system
Political system is legitimate when it is supported by the people and enshrined in the constitution. Before 1992 Tanzania has a monoparty state or country and this was stated in the
CURT, 1977 by then. Following constitution amendment from 1992 Tanzania become a multiparty state therefore a political system of the United Republic of Tanzania is Multipartism.
This Multipartism has support of the people and it is enshrined or expressly under Article 3 of the CURT, 1977. The political system of Tanzania therefore acquires a quality of constitution legitimacy and this is because the system has constitutional recognition and mass support from the people and that is Tanzanian.
People under Multipartism posses political authority and they effectively participate in various political activities and they exercise control of political decisions. Political system of Tanzania controls political decision through free and fair general election which are conducted after every five years. People control and exercise political control for the country under Article 5 of the
CURT, 1977. This Article provides for franchise or freedom to vote.
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The constitution of Tanzania provides for the leaders who are obtained through general election that is the president of the United Republic of Tanzania and the president of the Revolutionary of
Zanzibar, members of parliament and members of the House of Representatives of Zanzibar and the counselors. The general election for these leaders are conducted after five (5) years and at is according to the election laws of Tanzania. Therefore political system of Tanzania has constitutional legitimacy.
IDEOLOGICAL FUNCTION OF THE CONSTITUTION
Ideology is the set of ideas or principles or doctrine of a state. In constitutional law ideology is the set of aims and ideas of a state in a political sector. It includes comprehensive version as a way of looking at things and also it involves philosophical tendency of the state. The constitution of the country always state out the ideology which the state follows and which the state believe in. example the CURT, 1977 [CAP 2 R.E. 2002] has provision for the ideology of the state.
There are two ideologies which Tanzania follows according to the constitution and that is the first one is that Tanzania is the state which adheres to the principles of democracy and social justice and second one it is the country which follows socialist ideology. This has been provided under Article 8 and 9 of the CURT, 1977.
ORGANIZING FUNCTION OF THE STATE
The constitution organizes the government by providing the structure of that particular government. This means the constitution of a country provides composition for various organs of the state. Commonly they are only three organs of the state that is the judiciary, executive and legislature. Again the constitution provides for the powers and limitations of those powers of each organs of the state.
EXECUTIVE
In the executive the constitution provides for the head of the state and this head of the state may be the president, prime minister or other depending on the nature of the state. The president as the head of the state has given powers to promulgate laws, appoint minister and other chief
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executive officer, to abolish or establish any office and any other matters. All these are conferred to the present by the CURT, 1977.
JUDICIARY
As for the judiciary CURT, 1977 provides as the organ for interpretation of laws and administration of justice in the country. Therefore judiciary is the trial organ in the country. In
Tanzania the judiciary consists of the Court of Appeal of Tanzania as a supreme and final appellate court, High Court of Tanzania Mainland and High Court of Zanzibar., the Resident
Magistrates’ Court and District Court, the Primary Courts and other tribunal like Court Marshall for army, Land Tribunal, Labour Tribunal, Tax Tribunal and others of the like. Judiciary includes also prosecutions organs and there are two prosecutions organs firstly the office of
Attorney General that is AG Chamber and is responsible for civil matters and other legal issues of the state and secondly the office of the Director of Public Prosecutions (DPP) and deal with criminal matters. The office of DPP is the constitutional feature or office established under
Article 59B of the CURT, 1977.
LEGISLATURE
As for the legislature the CURT, 1977 established the parliament of Tanzania and the parliament of Tanzania is in two levels that is firstly is the parliament and secondly the national assembly.
These are established under chapter III of the CURT, 1977 and the constitution provides fro the composition of the legislature in Tanzania and types of composition. Those types of composition of parliament of Tanzania are seen as follows;
a) Members of parliament from area of constituencies or direct elected by the people from their constituencies. b) Members of the parliament nominated by the president of The United Republic of Tanzania.
c) Other members of parliament are members of parliament from special groups.
d) Members of parliament from special seats.
e) Members of parliament from Zanzibar.
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f) Members of parliament by virtue of their offices or members if parliament of ex-officio such as Attorney General.
CLASSIFICATION OF CONSTITUTION
INTRODUCTION
There are many ways to classify constitution some classify constitution according to their mode of making while others classify constitution according to the nature of the government. However there are two major ways to classify the constitution that is firstly old classification of constitution and secondly modern way classification of constitution.
OLD WAY OF CLASSIFICATION OF CONSTITUTION
Old way of classification of constitution was the classification in ancient or old way and it is the classification of constitution which was propound by Ancient philosophers including Aristotle,
Plato, Cicero. In old classification there are good constitution and bad constitution.
Good constitution is constitution which are public participatory, democratic and which guarantee individual rights. Bad constitution on the other hand is those constitutions which concentrate much powers to the leaders. These are undemocratic constitution.
MODERN CLASSIFICATION OF CONSTITUTION
Modern classification of constitution was introduced after the emergence of bourgeoisie constitutional lawyers. These constitutional lawyers include Dicey, Montesquieu, Russell Hugo
Grotius and others of the like. According to these scholars modern classification of constitution depends and is determined by distribution of state powers or state authorities. This is the most preferred classification of constitution.
TYPES OF CONSTITUTION IN MODERN CLASSIFICATION
Under modern classification of constitution there are six types of constitution and these are as follows; I.
Flexible and Rigid constitution.
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II.
Written and Unwritten constitution.
III.
Monarch and Republic constitution.
IV.
Federal and Unitary constitution.
V.
Presidential and Parliamentary constitution.
VI.
Ordinary and Supreme constitution.
I.
FLEXIBLE AND RIGID CONSTITUTION
Flexibility or rigidity of the constitution is based on amendment of the constitution. Flexible constitution is the type of constitution which is capable and easily to amend it while Rigid constitution means the constitution which is either not amendable at all or its amendment require complex procedure. It is important to not that there is no constitution in the world which is not amendable. Flexible constitution is the one which is easily amendable. It is the type of constitution which doesn’t require special procedure or steps in order to amend such constitution. It is the constitution which may be amended at any time when the need arise. Flexible constitution makes such constitution to be much more responsive to the political and social changes of the country.
Rigid constitution on the other hand is the type of constitution which is not easily amendable. It is the constitution which its amendment requires complex procedure and such a constitution are always not responsive to the social and political changes.
METHODS OF AMENDING THE CONSTITUTION
The methods of amending the constitution vary in different countries. Some of the methods of amending the constitution are firstly Passing a national referendum and secondly Passing Act of parliament to amend the constitution. In these ways of amending the constitution especially in the second way the legislature of the country sit in special form known as constituent assembly and this is very common in France and in Tanzania. In Tanzania the legislature has power to amend the CURT, 1977 and the legislature is required to sit with a prescribed majority or
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quorum of the members of the parliament, this is provided under Article 98(1)a & b of the
CURT, 1977. Article 98(1) a of the CURT, 1977 provides for the amendment of the constitution for non union matters that is matters concerning only mainland Tanzania or Tanganyika and according to this provision in order to amend the constitution on non union matters the proposed amendment must get support of 2/3 of members of parliament from Mainland Tanzania or
Tanganyika.
Article 98(1) b of the CURT, 1977 provides for the amendment of the constitution for union matters and according to this provision requires that the proposed amendment must get support of 2/3 of members of parliament from Mainland Tanzania and Zanzibar. The list of union matters are prescribed in the list two (2) of the 2nd schedule of the CURT, 1977, and non union matters are prescribed in the list one (1) of the 2nd schedule of the CURT, 1977. Refer the case of
MALIM SHEIF HAMAD V. SERIKALI YA MAPINDUZI YA ZANZIBAR (“SMZ”)
[1998] TLR 43.
EXTENT OF
THE
POWERS
OF
THE
LEGISLATURE
TO AMEND
THE
CONSTITUTION
Constitutional law allows the legislature to amend the constitution however this power has limitations. The limitation is that the legislature cannot amend special/basic features of the constitution. Some of the constitutions of some countries has express provisions which limit powers of the legislature to amend special features of the constitution example the Constitution of German Federal Republic of 1990 and the Constitution of the Republic of Saiplas of 1960 have provisions which prohibit the legislature to amend basic features of those constitution.
In India limitation of the legislature to amend its constitution is expressly in the judgment in the case of KASAVARANDA BHARATI V. STATE OF KERARA [1973] AIR 146,this was the constitutional case decided by the Supreme Court of India and such court held that the parliament of India may amend the constitution of India but it cannot amend the basic features of the Constitution of India, the judges in this case went further to point out to describe those essential features or articles of the constitution of India as follows;
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a) The supremacy of the constitution.
b) The Republican and democratic form of government.
c) The Secular character of the government of India.
d) Maintenance of separation of powers.
e) Federal character of constitution.
AMENDMENT OF THE BASIC FEATURES OF THE CONSTITUTION OF TANZANIA
In Tanzania there are two phases dealing with amendment of the basic features of the constitution in Tanzania.
The first phase is before the decision of the Court of Appeal in the case of ATTORNEY
GENERAL V. REV. CHRISTOPHER MTIKILA, CIVIL APPEAL NO 45 OF 2009,
COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM, 2010 (UNREPORTED) and the second phase is after the decision of the Court of Appeal ATTORNEY GENERAL V.
REV. CHRISTOPHER MTIKILA, CIVIL APPEAL NO 45 OF 2009, COURT OF
APPEAL OF TANZANIA AT DAR ES SALAAM, 2010 (UNREPORTED)
Before the decision of the Court of Appeal in Mtikra’s case the judiciary of Tanzania particularly the High Court of Tanzania was in the opinion that the parliament of Tanzania can amend the
CURT, 1977 but it couldn’t amend those Articles providing for basic features of the constitution.
This was expressed by Lugakingira J as then he was in the case of REV. CHRISTOPHER
MTIKILAV. ATTORNEY GENERAL [1995] TLR 31, in this case Lugakingira J held that;
“…The parliament is given wide powers to amend the constitutional provisions but those powers of the parliament can be only exercised subject to limitations, Lugakingira J went on to say that one of the constitution provisions which the parliament cannot amend is the ethics of human rights that is the basic features of the constitution…”
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However the decision of the Court of Appeal in the case of Mtikira in 2009 has overruled the decision of the High Court of Lugakingira J and the Court of Appeal sitting at Dar es Salaam with seven of justice of appeal stated as follows;
“…Powers of the parliament to amend the CURT, 1977 is unlimited and it said that the parliament may amend any Article of the constitution and the judiciary has no power to limit such amendment. But the only power of the judiciary is to see if those constitutional amendment meet prescribed requirement under Article 98(1)a &b as the case may be… the court continue to say once the judiciary satisfy itself that those requirements has been fulfilled then the judiciary cannot question illegality or extent of the amendment of the constitution. The court of Appeal concluded the matter by stating that after all the doctrine of basic features of the constitution is not part of the constitutional law of Tanzania…”
II.
WRITTEN AND UNWRITTEN CONSTITUTION
Written constitution is used to describe constitution which is in written form, written constitution means the constitution which is codified in a single constitutional document. The CURT, 1977, the Constitution of the United Republic of Kenya of 2010, the Constitution of the United Republic of South Africa of 1996 are few examples of written constitutions in the world. Written constitution is sometimes referred as formal constitution and most constitutions in the world are written constitution.
Unwritten constitution on the other hand are constitution which is not codified in writing, it is the constitution which is not in written form. Unwritten constitution is the type of constitution which is not codified in a single constitutional document. Unwritten constitution is sometimes referred as informal constitution however unwritten constitution doesn’t mean oral constitution.
Unwritten constitution means the constitutional is put in writings but in there are several documents which contain constitutional principles of the country that is why unwritten constitution is called un codified constitution or oral constitution. Unwritten constitution is not very common type of constitution in the world. The best example of unwritten constitution in the world is the constitution of the United Great Britain (UK). The constitution of England is
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unwritten constitution in the sense that there are several documents which contain constitutional principles or rules which are used to rule England. Those documents are not codified in a single bundle of constitution document but they are applied as the constitutional document of England.
The following are some of the documents in England which contain constitutional rules or principle as follows;
a) Acts of parliament
There are several Acts of parliament in England which contain constitutional provisions examples of Acts of parliaments in England which contain constitution principles are as follows;
The Petition of Right Act of 1688
The Act of Settlement of 1700
The Magna Carta of 1215
The Instrument of Government of 1653
b) International treaties
Important international treaties which England has ratified and domesticated are part of constitutional law of England example of such international treaties includes The European convention on Human Rights of 1950. This convention has ratified and domesticated in England through the Human Right Act of 1998.
c) European union laws
European Union laws are the sub category of international law. They provide for various matters, some of which are of constitutional importance. As England is a member of European Union then she is bound to adheres and follow the European Union laws. Therefore European Union laws are part of constitutional law in England.
d) Precedents
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Precedents are judgments of the superior courts of England which is bound the inferior courts in
England. Some judgments delivered by the superior courts of England create constitutional principles or rules and so they are part of the constitution of England. Example the decision in the case of EUTICK V. CARRINGTON [1963] ECR 1is very important precedent in constitutional law in England. Apart from these documents common law of England has developed by common law courts is also the source of constitutional law of England.
III.
FEDERAL AND UNITARY CONSTITUTION
Federal constitution is the result of union or unity of two or more state. Two or more states may unite and share sovereignty under federal government. It is the constitutional which describes state powers vertically and horizontally among the states united.
Unitary constitution on the other hand is the type of constitution under which two or more independent states unite and surrender their legislative power to one organ or legislature. Under unitary constitution the states united continue to maintain their sovereignty but surrender only the legislative powers to one legislature.
The constitution of England is argued to be Federal or quasi federal constitution due to the existence of revolutions or decentralization of some of the legislative power to the state united.
But most of the constitutional lawyers prefer to classify constitution of England as Unitary constitution and this is because England is the union of several states and those states have surrendered their sovereignty in favour of one sovereign state know as Great Britain.
The CURT of 1977 is argued to be unitary constitution and this is because this constitution of
1977 is the result of union of two independent states of Tanganyika and Zanzibar but one state continue to maintain it’s sovereign.
IV.
PRESIDENTIAL AND PARLIAMENTARY CONSTITUTION
Presidential constitution is the constitution which describes the head of the state being the president. This president is obtained through general election or in any other ways. Under presidential constitution the executive organ of the state is more powerful than other organs of the state. Again presidential constitution describes the head of the executive being the head of
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the state. This head of the executive who is also head of the state is not direct member of the parliament. The CURT, 1977 is the presidential constitution because the head of the state and head of the government of Tanzania is the president as provided for under Article 33(2) of the
CURT, 1977.
Parliamentary constitution is the type of constitution whereby the head of the state is the prime minister. This prime minister is obtained through general election of the country and he is a member of parliament of that particular country. Under parliamentary constitution the prime minister is directly responsible and accountable to the parliament of that country. For that the parliament has power to dismiss the prime minister through passing the vote of no confidence against him. A good example of parliamentary constitution is the constitution of German and of
England. In German there is a president however this president is the ceremonial head of the state (titular) but he has no executive powers so the executive powers in German are vested in the prime minister titled as chancellor. In England there is a monarch being a queen or king but again these queens or king is a ceremonial figure since the monarch in England has no executive power and the executive power is vested to the prime minister.
V.
MONARCH AND REPUBLIC CONSTITUTION
Monarch constitution is the type of constitution under which the country is headed by monarch and that is either queen or king as the case may be. However in most cases but not in all the monarch is the head of the state is the ceremonial head of the state since he has no executive powers. Under monarch constitution the executive head of the country is the prime minister.
Therefore under monarch constitution the prime minister is the one who exercise political power and important decisions of the country. Under monarch constitution the monarch has few powers and most of them are traditional powers and not executive powers. Example of such powers power to declare war or state of emergence, power to issue pardon that is prerogative of mercy, power to make treaties, power to dissolve the parliament at the end of its tenure.
In very few circumstances monarch may play an active political role example according to constitution of England which is monarch constitution where during general election two
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political parties they get equal votes then the monarch will vote for one party and declare that party a ruling party and this happened in England in 1974. Under monarch constitution the king or queen are obtained through hereditary system. There are few countries in the world which are under monarch constitution such as England, Spain and most of Scandinavian countries.
Republic constitution is the type of constitution in which the sovereign of the state originated from the people. This people then delegate their powers to their leaders to rule on their behalf.
Under Republic constitution people hold political power or authorities and they exercise their political power through general elections. In these general elections people vote for various leaders depending on the nature of the constitution.
The CURT, 1977 is the Republic Constitution because Article 8(1) of the said constitution declared that sovereignty of the United Republic of Tanzania resides from the people of
Tanzania. Under this constitution people of Tanzania exercise political powers through general elections, the general election is held every five (5) years time. In this general election people of
Tanzania vote for their representatives and the executive head of the state. Representatives are two that is members of parliament and councilors while for the head of executive people vote for the president.
VI.
ORDINARY AND SUPREME CONSTITUTION
Ordinary constitution is the type of constitution which has ordinary legal power or form or force.
It is the constitution which its legal force or power is the same as of the ordinary law of the country. Supreme constitution is the type of constitution which has legal power above all other laws of the country. It is the constitution which is the source of all laws of the country and those other laws of the country derives their legitimacy and legality from the constitution. These constitutions are also known as grundnorm or juscommuni. The CURT, 1977 is the supreme constitution. This is proved by the judicial interpretation in various cases in Tanzania such as the case of LAUSA
ALFAN SALUM AND 106 OTHERS V. MINISTER FOR LANDS, HOUSING AND
URBAN DEVELOPMENT AND NATIONAL HOUSING CORPORATION [1994] TLR
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237 and also the case of MUNUO V. JUDGE INCHARGE & ATTORNEY GENERAL
[1998] TLR 464
Also Article 64(5) of the CURT, 1977 provides supremacy of the constitution and any law contravenes with it will be declared unconstitutional hence null and void.
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