A History of God

MWAKISIKI MWAKISIKI EDWARDS
❖ CONCEPTUAL ANALYSIS AND CLASSIFICATION OF

CONSTITUTIONS
IN THE CONTEXT CONSTITUTIONAL LAW
❖ Meaning of Constitutional Law
In answering the questions ‘what is constitutional law, Professor D C Yardley in his book1 defines 2
constitutional law rather simply as “that law which is concerned with the Constitution of the
country.” Yardley further elaborate on the general definition. He writes: 3“The constitution of any
country must comprise the fundamental structure and organization of that country, and that
therefore constitutional law is its fundamental, its basic, essential law, whether it be civil, criminal,
public or private together with those rules of conduct laid down to govern the exercise of state
power by the official organs of the State.”
Another author defines constitutional law in a bid to describe the constitutional law practice of the
United Kingdom in these words: ‘Constitutional law can be defined as a body of rules, convention
and practices which describes, regulate or qualify the organization and operations of government
in the United kingdom and also includes the institutions and offices comprising the government
and doctrines and principles which influence the constitutional practices.’ 4
On the other hand, constitutional law is rather the aspect of law that defines how the constitution
itself is shaped by judicial pronouncement and interpretation as well as practice of the
constitution.5
❖ Constitutional Law Differentiated From Administrative Law
Constitutional and administrative are two closely related subject area of law. There is thin line
demarcating constitutional and administrative law. However, in discussing the constitutional law
in a country such as Tanzania, we need to distinguish constitutional law from administrative law.
1
British Constitutional Law (7th ed) Butterworth’s, London.
2
Ibid.p. 3
3
Ibid. p. 4.
4
Corlin Turpin, British Government and the Constitution: text, Cases and Materials, pp. 3-4.
5
See the opinion of Salmond referred by Glanville Williams, Jurisprudence, Eastern Press Ltd of London & Reading,
1957, 11th ed. Pp.100-102.
1
Compiled Notes on Constitutional Law-2016-2017
Administrative law may be defined as the law which determines the organization, powers and
duties of authorities. Like constitutional law, it deals with the exercise and control of governmental
power.
However, as pointed out by Wade and Bradley, “There is no precise demarcation between
constitutional and administrative law… may be defined as the law which determines the
organization, powers and duties of administrative authorities. Like constitutional law,
administrative law deals with the exercise and control of governmental power. A rough distinction
may be drawn by suggesting that constitutional law is mainly concerned with the structure of the
primary organs of government, whereas administrative law is concerned with the work of official
agencies in providing services and in regulating the activities of citizens.”
One can therefore make a synthetic difference may be made by suggesting that constitutional law
is mainly concerned with the structure of the primary organs of government, whereas
administrative law is concerned with the work of official agencies in providing services and in
regulating the activities of citizens. Administrative law is directly affected by constitutional
structure of government because the administrative bodies are set up or established by the function
of the constitution itself.
❖ Definition of Constitution
A constitution can be described as a simple document having a special legal sanctity which sets
out the framework and the principal functions of the organs of government within the state,
declares the principles by which those organs must operate and the relationship between the
citizens and the organs of government. 6
The interpretation Article 151 of the constitution of URT, does not define the term constitution
and the same extends to the interpretation of laws Act. A meaning of constitution is found under
section 3 of the Constitutional Review Act Cap 83 R.E 2014.
6
Ben Nwabueze, Presidential Constitution of Nigeria, (1982)
2
❖ TYPES OF CONSTITUTIONS AND THEIR COMPARISON

The following categorization that will be discussed in this work is not sacrosanct. As a matter of
fact, country may fall into more than one of the types due to the practice of its government. For
example, a country with a written constitution may as well be operating a rigid constitution and
may, at the same time, be a federal constitution. All these categories are combinable in a particular
system of government. So, open your mind wide to understand the types and study the necessary
comparison made from them to be able to distinguish appropriately the various types of
constitution that can exist.
(a) Written and Unwritten Constitution
▪ Written Constitution
▪ Written Constitution can be described as one in which is found in one or more than one
legal document duly enacted in the form of laws. It is precise, definite and systematic. 7 It
is the result of the conscious and deliberate efforts of the people.
▪ It usually is documented and framed by a representative body duly elected by the people
at a particular period in history. A written constitution is adopted on a specific date in
history which is supposed to reflect in the preamble to the constitution.
▪ The constitution of Nigeria, India, and United States to mention just three, for example, are
all written constitutions. They were first framed by nominated or elected Constituent
Assembly made up of representatives and were subsequently promulgated or adopted on a
definite date.
▪ Written constitutions are more ascertainable in that they are contained in one authoritative
document and are often regarded as more fundamental because of the basic function they
perform.8 A written constitution may also be termed as an enacted constitution. 9
▪ Modern written constitutions owe their origin to the charters of liberty granted by the Kings
in middle Ages.
▪ But the first written constitution framed by a representative constituent assembly was that
of the United States of America. This example was followed by France. During the 19th
7
Ankita, ‘What is the difference between written and unwritten constitution?’,
8
Kehinde Mowoe, Constitutional Law in Nigeria, Vol. One, 2003, Malthouse Press, Lagos at p.4
9
See Tunji Abayomi, Federal Legislative Powers, Constitution Decree 24, 1999, (Law Searchers Ltd, 2008)
3
Century a number of states framed their constitutions, all of which were written, with the
exception of the constitution of England 10.
▪ Unwritten Constitution
▪ An unwritten constitution is one in which most of the principles of the government have
never been enacted in the form of laws.
▪ It consists of customs, conventions, traditions, and some written laws bearing different
dates. It is unsystematic, indefinite and un-precise. Such a constitution is not the result of
conscious and deliberate efforts of the people. 11
▪ It is generally the result of historical development. It is never made by a representative
constituent assembly at a definite stage of history, nor is it promulgated on a particular
date. It is, therefore, sometimes called an evolved or cumulative constitution.12
▪ The constitution of England is a classical example of an unwritten constitution. It is mainly
the result of historical growth.
▪ The foundation of the English Constitution was laid in the 13th century by King John, who
issued the first charter of British freedom known as the Magna Charta. Since then, it has
been in the process of making through conventions and usages.
▪ The Distinction Is Not Watertight
▪ Distinction between a constitution that is written down and the one not written down is not
watertight or sacrosanct. The truth is that there is no constitution which is entirely written
down. There is equally no constitution that is completely unwritten in nature. In other
words, virtually every written constitution has an unwritten element in it just like every
unwritten constitution also has a written element.
▪ Let us analyze this position in the light of the constitution of the U.S.A. which is a classical
example of a written constitution. The Constitution of America provides for an indirect
election of the President, but as a matter of convention, presidential election has become
direct. It was based on the theory of separation of powers and the President was given only,
executive powers but today, he is not only the 'Chief Executive' but also the 'Chief
Legislator'.13
10
Ankita, ‘What is the difference between written and unwritten constitution?’ ibid.
11
Ibid.
12
Ibid.
13
Ibid.
4
▪ Similarly, in the Indian Constitution, which has been written overtime, recently, conven-
tions have grown. Even though the Constitution gives discretion to the President and the
Governor to appoint any person as Prime Minister and Chief Minister respectively, but
convention has grown that the leader of the majority party is appointed. Thus, it is
practically difficult for any country in the world to have an absolutely written constitution.
▪ One should not also expect the constitution of a country to be static. According Ankita,
‘since social and economic life of society is dynamic, the constitution is bound to change
with changed requirements of the society and very often through convention rather than
law.’14
▪ On the other hand, the Constitution of England is a very good example of an unwritten
constitution. The major part of the documents that can be referred to as constitutional
documents are relating to the powers of the Monarch, the Cabinet, the Parliament and
mutual relations between the various organs of the Government are all the result of
Conventions.
▪ Although, the major portion of the Constitution of England is based on conventions and
traditions, yet, there are many written laws in it like the Magna Charta 1215, the Petition
of Rights 1628, the Bill of Rights 1689, the Habeas Corpus Act 1679, the Acts of
Settlement 1701, various Reforms Act of 1832, 1867, 1884, Parliamentary Act of 1911,
and the Crown Proceedings Act, 1947 and so on.
(b) Rigid and Flexible Constitution

▪ Rigid Constitution
▪ That a constitution is rigid definitely refers to the difficulty of its amendment process as
may be stipulated by the constitution. If the procedure requires a special procedure as we
have it in constitution of Tanzania and that of United States of America, such constitution
can be tagged ‘a rigid constitution’.
14
Ankita, ‘What is the difference between written and unwritten constitution?’ ibid.
5
▪ By definition, a rigid constitution is one which cannot be amended, in the manner in which
ordinary laws are passed amended or repealed. If a special procedure or organ is needed
for its amendment, it is a rigid constitution.
▪ In a rigid constitution, ordinary legislature of the country is not competent to amend it in
the ordinary legislative procedure. Some laws are referred to as constitutional law which
cannot be amended by the ordinary legislature using normal legislative procedure.
▪ Moreover, a rigid constitution is the supreme law of the land and ordinary legislature
cannot pass a law to amend or vary what is contained in the constitution. As a matter of
fact, other legislations derive their sources and validity under a rigid constitution. The
authority of other laws is limited and can only be validated by the Constitution; otherwise,
it will be null and void.
▪ Both the Tanzania and the American constitutions are good examples of rigid constitutions.
It cannot be amended in the manner in which ordinary laws are passed, amended or
repealed. A distinction is maintained between a constitution and an ordinary law.
▪ There is a special procedure for constitutional amendment. Ordinary law in U.S.A. can be
passed by a simple majority of the Congress, whereas the constitutional laws can be
amended only by the agreement of two thirds majority of the Congress and three fourths
of the states.
▪ The Swiss constitution is still more rigid. An amendment whether proposed by the Federal
Assembly or through initiative needs to be approved by the Cantons and the electorate
through referendum. It must be, thus approved by majority of all the voters casting their
vote and by majority of such votes in majority of Cantons.
▪ Flexible Constitution
▪ A flexible constitution is one which can easily be amended by perhaps an ordinary
legislative process by the ordinary resolution. Both constitutional laws and an ordinary
law are treated alike since all constitutional amendments can be made by a simple majority
of the legislature. No distinction is made between the constitution making authority and
the ordinary law making authority.
▪ No law is unconstitutional if passed by the Parliament. It is a sovereign body, at once
enjoying the ordinary law making powers and constitutional law making powers. It is at
once a legislature and a constituent assembly.
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▪ The constitution of England is a typical example of a flexible constitution. The British

Parliament is competent to pass, amend or repeal any constitutional law in an ordinary
legislative process as both constitutional laws and ordinary laws are treated alike.
(c) Civil and Military Constitution

▪ Civil Constitution
▪ A civil constitution is one which exists in a democratic setting whereby the tenets of
fundamental rights, ideals of democracy are enshrined. It is consciously prepared and
framed for a democratic government by the people themselves. It defines the relationship
between the representative of the people and the duties and right of the citizens.
▪ A civil constitution is characterized by the element of freedom, will, representation and
participation.
▪ Military Constitution
▪ A military constitution on the other hand is a document superimposed on a country for the
purpose of ruling or controlling the governmental affairs without peoples input.
▪ A military constitution is more or less a Decree or legislation of the Supreme Council of
the military government at any particular point in time.
▪ (d) Unitary and Federal Constitutions
▪ Unitary Constitution
▪ A unitary constitution is one which defines a centralized system of government without
constitutional friction between the national and regional government. It promotes the spirit
of oneness among the people and eliminates the feeling of double loyalty to one’s regional
government and then to the national government.
▪ The document concentrates powers in the national government and tends to promote a
strong and stable government, than a federal system where power is divided between the
federal and state governments.
▪ It usually a flexible constitution, small and simple to operate since there is no duplication
of government and offices at every level. Thus, the constitution even though written can
easily be amended to meet the changing social, economic and political needs of the country.
The document makes the art of governance easy for those at the elms of affairs.
▪
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▪ Federal Constitution
▪ A federal constitution is a document that provide for system of government between a
government at the centre and other component states with division of powers. Though there
are states with autonomy to govern, it is a single constitutional document that prescribed
their operations.
▪ As a result of the above, it is common to see most federal constitutions rigid and written.
In a federal constitution, there is existence of a rigid form of amending the constitution.
This is to preserve the corporate existence of the country and check secession bid by any
of the states making up the federation.
(e) Monarchical and Republican Constitutions
▪ Monarchical Constitution
▪ A Monarchical Constitution is a constitution where the King or Queen in the head of
government. The government may be presidential or republican government.
▪ In most cases, the Monarch acts as a ceremonial head with absolute or limited authority.
There is also de factor head of the government in whom the powers and authority of
the executive is reserved.
▪ Republican Constitution
▪ A Republican Constitution is a document in which the officials of government are
elected as representatives of the people, and must govern according to existing
constitution that limits the government's power over citizens.
▪ The United States of America is also a vivid example of a state where republican
constitution is used to run the affairs of government.
▪ A republican constitution is usually characterized by appointing a head of state,
stipulate the powers and functions of the three organs of government and defining the
rights and duties of the citizenry. The constitution is an adoption of the people. It
expresses the determination to exercise control of government through its elected
representatives. It also expresses a limited government by virtue of the provisions of
the constitution.
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(f) Presidential and Parliamentary Constitutions

▪ Presidential System of Government
▪ A presidential system of government is a government where all executive powers are
vested in a president who is the head of state and head of government. The president may
exercise the executive powers of government either directly by himself or through the vice-
president, ministers or other officers in the public service of the federation.
▪ The powers of the president is to maintain the constitution and to apply all the laws made
by the legislature for the time being in force and to implement party programmes and
generally uphold the interest of the nation and the welfare of the people at all times.
▪ The President is elected directly by the people or indirectly through an electoral college.
The President and the cabinet of ministers appointed by him are not members of the
legislature. The President is free to choose his ministers from within and outside his party
subject to confirmation by the Legislature.
▪ The President is a member of the ruling party. The party advises and supports him and he
implements the programmes of the party. The ministers are first responsible to the president
who appointed them and he is primarily responsible to discipline the ministers or otherwise
call them to order. The legislature and the executive may be controlled by different political
parties.
▪ The president is responsible to the legislature which may investigate and impeach him for
gross misconduct and he is also responsible to the people who are the sovereign power in
a country and who may not renew his mandate at election. The United States of America,
Nigeria, Ghana, Kenya and South Africa are examples of countries operating a presidential
system of government.
▪ There are many checks and balances under the presidential system of government. While
the legislature may refuse to vote for taxes, thus checking a difficult Executive, the
Executive (President) in turn may veto a bill which has been passed by an uncompromising
legislature. But, if the bill is passed the second time by two thirds majority, it becomes law.
If however the Bill/Law is challenged on questions of illegality/constitutionality in court,
the judiciary may declare it unconstitutional, thus acting as a check though the judges are
appointed by the Executive. One can then say that the presidential model of government is
in essence a government of separation of powers coupled with checks and balances.
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▪ Parliamentary System of Government

▪ A parliamentary or cabinet system of government is a government where all the executive
powers of government are vested in a Prime Minister who is the head of government and
head of the majority party or ruling party, but is not the head of state. In this system of
government, the head of state who exercises only ceremonial functions may be a monarch
or president who is the figurehead.
▪ The prime minister and the entire ministers in his cabinet are all members of the same party
or coalition of parties. In a cabinet system of government, there is no complete separation
of powers, nor a complete fusion of powers. Though the executive and the legislature are
completely fused, there is no over-lapping of powers because the same people constitute
both arms. The judiciary is completely separate from the legislature and the executive.
▪ Apart from the doctrine of collective ministerial responsibility and the doctrine of
individual ministerial responsibility to parliament, the prime minister as head of the
government or executive arm has the power to dismiss any minister and he is primarily
responsible for the discipline of his cabinet. The stability of the government depends a lot
on the ruling party controlling a reasonable majority in the parliament or being able to form
a coalition government with another party or parties.
▪ There is an official opposition party in the parliament, which is usually the party having
the highest number of votes next to the ruling party in the parliament. The members of the
parliament and the executive arm are one. The prime minister is subject to his party and is
controlled by the party. He remains in office as long as his party has the majority of
members in the parliament. However, when a vote of “no confidence” is passed on him
and his cabinet by parliament, the Prime Minister and his entire cabinet is obliged to resign.
▪ The United Kingdom is the origin and home of this system of government. Other countries
operating a parliamentary system of government include: Canada, Jamaica, Israel, India,
Australia, Lesotho, Ethiopia and so on.
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❖ THE DOCTRINE OF SEPARATION OF POWER

1. Introduction
The doctrine of separation of power is said to be a bourgeois political-legal theory that claims that
state power is not a single entity but rather a composite of different governmental functions (i.e.
legislative, executive, and judicial) carried out by state bodies independently of each other. The
legislature enacts laws; the executive enforces laws; and the judiciary interprets laws.
2. Origin of the Doctrine of separation of power
The theory of separation of powers may be traced back in the writings of classical and medieval
thinkers such as Aristotle (384–322 BC). For instance, Aristotle in his book (“The Politics”)
proclaimed that: There are three elements in each constitution in respect of which every serious
lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is
bound to be well arranged, and the differences in constitutions are bound to correspond to the
differences between each of these elements. The three are, first, the deliberative, which discusses
everything of common importance; second, the officials; and third, the judicial element.
Further, Aristotle believed that any single form of government was unstable leading to a
permanent cycle of disasters. In the same vein, Cicero preferred powers to be vested in the people
and authority in the state. Apart from Aristotle and Cicero, other thinkers who rebelled against
concentrating powers in one absolute leader were John Locke and Jean Bodin. For instance,
Locke stressed that the executive and legislative powers should be separate for the sake of liberty.
As liberty is likely to suffer when the same human being makes the law and execute them. Such
thinking during the Age of Enlightenment (reasons) in Europe were refined and reformulated as a
doctrine in the mid-18th Century by the celebrated French philosopher, Charles de Secondat,
Baron de Montesquieu (1689-1755).
Between 16-18th Centuries, the doctrine of separation of powers occupied an upper hand in the
struggle of the bourgeoisie against absolutism and the arbitrary rule of kings (i.e. feudal
monarchy). Again, the doctrine was used in a number of countries to justify a compromise between
the bourgeoisie, which had won control over the legislature and judiciary, and the feudal-
monarchical circles that had retained executive power. With the establishment of the capitalist
system the principle of separation of powers was proclaimed as one of the fundamental principles
of bourgeois constitutionalism.
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3. Definition of separation of powers

The phrase ‘separation of powers’ is ‘one of the most confusing in the vocabulary of political and
constitutional thought’. According to Geoffrey Marshall (1971:97), the phrase has been used
‘with varying implication’ by historians and political scientists, this is because the concept
manifests itself in so many ways. In understanding the concept of ‘separation of powers’ one has
to take on board the three approaches i.e. traditional (classical), modern (contemporary) and
Marxist-Leninist approaches.
a) Traditional (Classical) approach
The traditional views are presented by Montesquieu who vigorously advocated for a “strict or
pure or total or complete or absolute” separation of powers and personnel between three organs
of the state i.e. the Executive, Legislature and Judiciary. Power being diffused between three
separate bodies exercising separate functions with no overlaps in function or personnel.
In Montesquieu’s days the monarchy in France had established despotism and the people enjoyed
no freedom. The monarchy was the chief law giver, executor and the adjudicator. The statement
by Louis XIV that “I am the state” outlined the character and nature of monarchical authority.
❖ Montesquieu’s strict doctrine (tripartite system).
▪ In every government there are three sorts of power i.e. legislature, executive and judiciary. The
executive, makes peace or war, send or receives embassies, establishes the public security and
provides against invasions. The legislature, prince and magistrate enact temporary or perpetual
laws and amend or abrogate those that have been already enacted. The judiciary, punishes
criminals, or determines the disputes that arise between individuals.
▪ Montesquieu warned his countrymen about the danger of vesting all state powers in one
person or body of people, That concentrated power is dangerous and leads to despotism of
government (tyranny);
▪ Legislature should not appoint members of the Executive i.e. Parliament should not elect the
President or the Prime Minister; and for the same reason the Executive should not have a role
in electing members of the Legislature. Neither the Executive nor the Legislature should
12
appoint members of the Judiciary, for if they do the Judiciary will lose its independence. Again,
judges should not appoint members of the Executive.
▪ That it is the people who should elect members of executive, legislature and judicial officers.
State officials should not form part of or belong to two or more organs. He argued, if separate
powers of government are placed in different hands, no individual or group of people can
monopolize political powers (i.e. differentiation of functions). Thus, he was against absolute
power residing in one person or body exercising executive, legislative and judicial powers.
▪ To him, the state will perish when the legislature power become more corrupted than the
executive. He based this model on the Constitution of the Roman Republic and the British
constitutional system. Montesquieu took the view that the Roman Republic had powers
separated so that no one could usurp complete power.
▪ He (mistakenly) believed that the English constitution establishes functional separation
between the legislature, executive and judicial powers. In England, the monarch exercises
executive powers, legislative power are shared by hereditary nobility and the peoples’ elected
representatives, judging powers vested in persons drawn from the body of the people. His ideas
were highly influenced by his stay in England between 1729–1731.
❖ SUMMARY
The Doctrine of Separation of powers includes the following distinct but overlapping aspects;
▪ Institutional separation of powers: (a tripartite separation of powers) – the need
to have three major institutions or organs in a state i.e. Legislature, Executive and
Judiciary.
▪ Functional separation of powers: state power/functions must be vested and
exercised by three separate institutions or organs i.e. law making, enforcement and
interpretation.
▪ Separation of personnel: (each organ with own personnel) – no person should be
a member of more than one organ.
▪ Limitation of appointing powers: state organs should not appoint or elect
members for each other.
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b) Modern (Contemporary) approach
This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of
separation of powers. Essentially, this approach point out practical difficulties in the application
of Montesquieu’s strict doctrine and thus advocates for a ‘mixed government’ or ‘weak separation
of powers’ with ‘checks and balances’to prevent abuses. Therefore, this concept insists that the
primary functions of the state should be allocated clearly and that there should be checks to ensure
that no institution encroaches significantly upon the function of the other.
▪ To them, Montesquieu’s strict doctrine presents the following problems:-

▪ A complete separation of the three organs may lead to constitutional deadlock (disunity of
powers). Thus, a complete separation of powers is neither possible nor desirable.
▪ Partial separation of powers is required to achieve a mixed and balanced constitutional
structure.
▪ It would be impractical to expect each branch of government to raise its own finances.
▪ The theory is based on the assumption that all the three organs of the government are
equality important, but in reality it is not so. In most cases, the executive is more powerful
of the three branches of government.
▪ C) Marxist-Leninist approach
▪ Unlike, the other two approaches, the Marxist-Leninist approach refute the application of
the doctrine by arguing that the theory of the separation of powers is “nothing but the
profane industrial division of labour applied for purposes of simplification and control to
the mechanism of the state”. In essence, Marxist-Leninist theory rejects the theory of the
separation of powers because it ignores the class nature of society. The existence in a
socialist state of state bodies with different jurisdiction means that a certain division of
functions in exercising state power is essential while maintaining the unity of state power.
❖ Application of the Doctrine of Separation of Powers in the United Republic of
Tanzania
▪ The Constitution of the United Republic of Tanzania (1977) represents a contemporary
approach in constitutional doctrine of separation of powers. Essentially, there is no strict
separation of powers under the Constitution of Tanzania, both in principle and practice. In
14
the Constitution of Tanzania, the doctrine of separation of power is enshrined under Article
4 which, inter alia, provides that; 4.-(1) All state authority in the United Republic shall be
exercised and controlled by two organs vested with executive powers, two organs vested
with judicial powers and two organs vested with legislative and supervisory powers over
the conduct of public affairs.
▪ In principle therefore, Article 4 of the Constitution establishes three organs of the state i.e.
executive, legislature and judiciary. In practice though, there is no strict separation of
powers (but rather a mixed from government with checks and balance) in terms of
functions of each organ and personnel conferred with state powers as exemplified below;
▪ Incidences showing there is no strict separation of powers in Tanzania
▪ It is the President (executive) who appoints Judges and Justices of Appeal (Judiciary) under
Article 109 and 118.
▪ The President (executive) is also allowed to appoint a certain number of members of the
National Assembly (legislature) under Article 66(1) (e).
▪ The executive do adjudicate in certain cases under ‘administrative tribunals’, e.g. Military
Tribunal (Court Martial), The Tax Revenue Appeals Board, The Fair Competition
Tribunal, and The District Land and Housing Tribunal.
▪ Judges, in practice, do make laws.
▪ The Chief Justice is allowed to make rules, e.g. Court of Appeal rules (2009) made under
the Appellate Jurisdiction Act (RE: 2002, Cap. 141).
▪ The Court can nullify Acts of parliament under Article 64(5).
▪ Members of the executive such as President, Ministers, Directors and etc., are allowed to
make subsidiary legislation as per Article 97(5).
▪ The President is part of the Parliament (but not a member of the National Assembly) as
per Article 62(2).
▪ Ministers (executive) initiate Bills and the President assent to Bills into law or may veto
the same [Article 97(1)(2)].
▪ Ministers (Cabinet members) are also part of the National assembly [see, Article 55(4)].
15
▪ The Attorney General (part of the executive) is also a member of the National Assembly
under Article 66(1) (d).
▪ President has the power to dissolve the National Assembly [Article 97(4)], likewise the
National Assembly can impeach the President, Vice-president and Prime Minister
(Article 38(2)(d), 46A, 50(3) and 53A).
▪ Some members of the National Assembly may also hold posts in the executive such as
District and Regional Commissioners [see, Article 66(3)
▪ A Judge can also be appointed as an Attorney General (the case of Judge Werema).
▪ All in all, the Court of Appeal of Tanzania has also asserted affirmatively the doctrine of
separation of powers in its various judgements. For instance, in DPP v. Daudi Pete [1993]
TLR 22 (CA), a case which was concerned with restrictions imposed by Section 148(5)
(e) of the Criminal Procedure Act, 1985 (on bail), Nyalali CJ refuted arguments made
by Mwalusanya J (High Court), thus laid down circumstances under which the doctrine
of separation of powers can be said to have been violated as following;
▪ “In our view, the Doctrine of Separation of Powers can be said to be infringed when either
the Executive or the Legislature takes over the function of the Judicature involving the
interpretation of the laws and the adjudication of rights and duties in disputes either
between individual persons or between the state and individual persons.”
▪ Again, in Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 (CA),
Nyalali CJ (as he then was) reiterated his position in Daudi Pete’s case and noted as
follows (in relation to the encroachment of the Judiciary’s power by the Executive);
▪ “It is the basic structure of a democratic constitution that state power is divided and
distributed between three state pillars. These are the Executive, vested with executive
power; the Legislature vested with legislative power, and the Judicature vested with
judicial powers. This is clearly so stated under Article 4 of the Constitution. This basic
structure is essential to any democratic constitution and cannot be changed or abridged
while retaining the democratic nature of the constitution. It follows therefore that wherever
the constitution establishes or permits the establishment of any other institution or body
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with executive or legislative or judicial power, such institution or body is meant to function
not in lieu of or in derogation of these three central pillars of the state, but only in aid of
and subordinate to those pillars. It follows therefore that since our Constitution is
democratic; any purported ouster of jurisdiction of the ordinary courts to deal with any
justiciable dispute is unconstitutional.” (pp. 92).
▪ Further, in Mwalimu Paul John Mhozya v. Attorney General (No. 1) 1996 TLR 130
(HC), the issue was whether the President may be removed or suspended from office by
the Court. Samatta JK (as he then was) in relation to the doctrine of separation of powers
held that;
▪ “The principle that the functions of one branch of government should not encroach on the
functions of another branch is a very important principle, one of the principles which
ensure that the task of governing a State is executed smoothly and peacefully. It seems to
me to be an incontrovertible proposition of law, having regard to the use of the words `in
accordance with the provisions of this constitution' in s 42(3)(d) of the Constitution, that
removal or suspension from office of the President of the United Republic is the
legislature's exclusive prerogative. Since s 46A of Constitution lays down the procedure to
be used in removing or suspending the President, the attempt to remove or suspend him by
a procedure other than that would not be legal.” (pp.137-8).
▪ Recently, the Court of Appeal (under Ramadhani, CJ) in A.G. v. Rev. Christopher
Mtikila [Civil Appeal No. 45 of 2009] reaffirmed the doctrine (though not so expressly)
by restricting the role of the Court to that of adjudicating (and not legislating). The Court
argued that;
▪ “…..the issue of independent candidates has to be settled by Parliament which has the
jurisdiction to amend the Constitution and not the Courts which, as we have found, do not
have that jurisdiction.”
❖ The Application of the Doctrine in other Countries
▪ Various scholarly works reveals that, there is no country in the world which has succeeded
to implement Montesquieu’s idea of absolute or strict separation of powers to the fully.
Some scholars claim rightly that even Montesquieu’s motherland i.e. France has failed to
17
adhere to the doctrine strictly. However, a cross-section of constitutional jurists worldwide

agrees in principle that, somehow the framers of the Constitution of the United States
adopted and expanded the doctrine of separation of powers.
▪ For instance, in the US Constitution [Article I(1), II(1) and III(1), the three organs of
government are both separated and balanced; Each organ has separate personnel and there
are separate elections for executive and legislature; and Each organ has specific powers
and some form of veto over the other.
▪ The power of one organ to intervene in another through veto, ratification of appointments,
impeachment, judicial review of legislation by the Supreme Court.
▪ Though the US Constitution presents the best practice with regard to the application of the
doctrine, to a certain extent, the same have been violated, the good example is when the
Supreme Court interfered and resolved the dispute between Al Gore and George W. Bush
with regard to the 2000 presidential election.
▪ Apart from the US, the constitutional practices in other part of the world bring an
impression that the doctrine is not strictly followed. For instance, under Article 86 of the
Constitution of South Africa (1996), the executive President is elected by the National
Assembly. On the other hand, Kenya has a Parliamentary system, where the president is
both the Head of State and Government, and also an elected Member of Parliament.
▪ IMPORTANCE OF THE DOCTRINE OF SEPARATION OF POWERS
Apart from criticisms directed and registered towards the doctrine of separation of powers, the
doctrine still retains considerable value as follows; i.e.
▪ It emphasizes the need for a State to have strong independent institutions in order to check
arbitrary rule by the Executive.
▪ The doctrine provides a yardstick against which constitutional proposals can be assessed
in order to determine whether or not there will be adequate checks and balances within the
governmental system to ensure that individual rights are protected.
▪ The functions of the government are vast and varied. It is therefore necessary to entrust
these functions to specific organs, so that the responsibility for performing these functions
may be effectively fixed.
▪ Constitutions which completely ignore the doctrine are usually bad ones, one of the
branches of government will be found to overshadow the others or liable to do so.
18
▪ Separation of powers according to Montesquieu is the best guarantee of the liberty of the
people.
▪ Separation of power promotes efficiency in the administration.
▪ Separations of powers prevent absolutism (as in monarchies or dictatorships where all
branches are concentrated in a single authority) or corruption arising from the opportunities
that unchecked power offers.
▪ It is considered as one of the pillars of democratic government.
❖ INGREDIENTS OF THE CONSTITUTION OR WHAT DOES CONSTITUTION
CONTAIN
1. Preamble
▪ Is an introductory and expression statement in a document that explains the document's
purpose and underlying philosophy, when applied to the opening paragraphs of a statute,
it may recite historical facts pertinent to the subject of the statute.
2. Bill of rights
▪ It limits the powers which are possessed by the government, the constitution gives enough
power to govern but should not abuse its power, the bill of right are fundamental freedom
of right. Article 12 - 24 of Tanzania Constitution.
3. A chart of the state system
▪ Here we are referring to organization chart of the state and the public authority is
distributed e.g;- President, vice president, prime minister and the cabinet. Article 33 - 61
of Tanzania constitution.
4. An amendment provision
▪ Is a formal or official change made to a law, contract, constitution, or other legal document.
It is based on the verb to amend, which means to change. Amendments can add, remove,
or update parts of these agreements. They are often used when it is better to change the
document than to write a new one. Constitution should provide how should be amended, if
the constitution cannot be amended it will lead to revolution.
19
▪ Procedure for altering(change) the Constitution and certain laws Article 98 of

Tanzania Constitution
▪ (1) Parliament may enact law for altering any provision of this Constitution in accordance
with the following principles:
▪ (a) a Bill for an Act to alter any provisions of this Constitution, other than those relating to
paragraph (b) of this sub-article or any provisions of any law specified in List One of the
Second Schedule to this Constitution shall be supported by the votes of not less than two
thirds of all the Members of Parliament; and
▪ (b) a Bill for an Act to alter any provisions of this Constitution or any provisions of any
law relating to any of the matters specified in List Two of the Second Schedule to this
Constitution shall be passed only if it is supported by the votes of not less than two-thirds
of all Members of Parliament from Mainland Tanzania and not less than two-thirds of all
Members of Parliament from Tanzania Zanzibar.
▪ (2) For the purpose of construing the provisions of sub-article (1), alteration of provisions
of this Constitution or the provisions of a law shall be understood to include modification,
or correction of those provisions or repeal and replacement of those provisions or the re-
enactment or modification of the application of the provisions.
▪ 5. Financial provision
▪ The constitution must show the sources of government funds and how government
generates money e.g;- custom duties, income taxes expenditure and the revenue taxes.
▪ Procedure for legislation in financial matters
▪ 99.-(1) The National Assembly shall not deal with any of the matters to which this Article
relates except if the President has proposed that the matter be dealt with by the National
Assembly and the proposal has been submitted to the National Assembly by a Minister. (2)
The matters to which this Article relate are the following: (a) a Bill to enact a law providing
for any of the following - (i) to levy a tax or to alter taxation otherwise than by reduction;
(ii) the imposition of any charge upon the Consolidated Fund or any other public fund or
the alteration of any such charge otherwise than by reduction; (iii) the payment, issue or
withdrawal from the Consolidated Fund or any other public fund of any moneys not
charged thereon, or any increase in the amount of such payment, issue or withdrawal; (iv)
the composition or remission of any debt due or payable to the United Republic; (b) a
20
motion or any amendment of a motion for the purpose of any of the matters referred to in
paragraph (a) of this sub-article. (3) The provisions of this Article shall not apply to a Bill
or any amendment to a Bill introduced by or a motion or an amendment to a motion moved
by a Minister or a Deputy Minister.
❖ RULE OF LAW
▪ Meaning
Also known as nomocracy is the legal principle that law should govern a nation, Rule of law
implies that every citizen is subject to the law, including law makers themselves. In this sense, it
stands in contrary to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers
are held above the law (which is not necessary by definition but which is typical). DICEY
attributed the following three meanings to the said doctrine;-
▪ Predominance of legal spirit- The Third meaning of the rule of law is that the general
principles of the constitution are the result of juridical decisions determining file rights of
private persons in particular cases brought before the Court. Article 107A Authority of
dispensing justice (1) The Judiciary shall be the authority with final decision in
dispensation of justice in the United Republic of Tanzania. (2) In delivering decisions in
matters of civil and criminal matters in accordance with the laws, the court shall observe
the following principles, that is to say (a) impartiality to all without due regard to ones
social or economic status; (b) not to delay dispensation of justice without reasonable
ground; (c)to award reasonable compensation to victims of wrong doings committed by
other persons, and in accordance with the relevant law enacted by the Parliament; (d) to
promote and enhance dispute resolution among persons involved in the disputes. (e) To
dispense justice without being tied up with technicalities provisions which may obstruct
dispensation of justice.
▪ Supremacy of the law- The First meaning of the Rule of Law is that 'no man is
punishable or can lawfully be made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of the
land. It implies that a man may be punished for a breach of law and cannot be punished for
anything else. No man can be punished except for a breach of law. An alleged offence is
21
required to be proved before the ordinary courts in accordance with the ordinary procedure.
Article.107B. Independence of the Judiciary, in exercising the powers of dispensing
justice, all courts shall have freedom and shall be required only to observe the provisions
of the Constitution and those of the laws of the land.
▪ Equality before the law- The Second meaning of the Rule of Law is that no man is above
law.
▪ Every man whatever is his rank or condition is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals. Article.13.-Equality before the law
(1) all persons are equal before the law and are entitled, without any discrimination, to
protection and equality before the law.
❖ HISTORICAL BACKGROUND OF RULE OF LAW
▪ One dominant theme in the story of Western civilization in the last 500 years has been the
struggle for liberty and rights against absolutism in its several forms, including the
absolutism of the state and its use of law. Magna Carta and its later confirmation expressed
the principle that justice according to law was due both to the ruler and to other classes of
the feudal hierarchy. When renaissance and reformation in the 16th Century weakened the
idea of a universal natural law, emphasis shifted to the functions of law as an aspect of the
sovereignty of the State (Tudor & Stuart, P.260).
▪ In Britain, the 17th century constitutional settlement rejected the claims of absolute
monarchy based on the divine rights of kings, in favour of a mixed system of government
that relied on the authority of the Houses of Parliament and the Common Law Court. The
Bills of Rights in 1689 affirmed that the monarchy was subject to law. Not only did it force
the Crown to govern through Parliament but it also established the right of individuals to
challenge unlawful interference in respect of their life, liberty and property.
▪ Dicey’s exposition of the Rule of Law Dicey gave to the rule of law three meanings:
▪ (1) The absolute supremacy on predominance of regular law as opposed to the influence of
arbitrary power and excludes the existence of arbitraries, of prerogative, or even of wide
discretionary authority on the part of the Government….; a man may with us be punished
for a breach of law, but he can be punished for nothing else.
▪ 2. Equality before the law, or the equal subjection of all classes to the ordinary law of the
land administered by the ordinary law courts. This implies that no one was above the law;
22
that officials like private citizens were under a duty to obey the same law; and that there
were no administrative courts to decide claims by citizens against the state or its officials.
▪ 3. That with us the law of the constitution, the rules which in foreign countries naturally
form part of the constitutional code, are not the source but the sequence of the Rights of
individuals, as defined and enforced by the courts; that in short, the Principles of private
law have with us been by the actions of the courts and Parliament so extended as to
determine the position of the Crown and of its Servants; thus the constitution is the result
of the ordinary law of the land.
❖ DEMOCRACY
▪ Is a system of government by the whole population or all the eligible (allowed) members
of a state, typically through elected representatives, Article 3.
▪ Forms or Types Of Democracy
1. Representative democracy (also indirect democracy) - is a form of government founded

on the principle of elected individuals representing the people, as opposed to autocracy and
direct democracy. The representatives form an independent ruling body (for an election
period) charged with the responsibility of acting in the people's interest, but not as their
proxy representatives not necessarily always according to their wishes, but with enough
authority to exercise swift and resolute initiative in the face of changing circumstances.
Article 76, 77, 78 & 79.
2. Participatory democracy-This means institution or Individual participation by citizens in
political decisions and policies that affect their lives, especially directly rather than through
elected representatives. This form of democracy is important for certain group of people
like trade unions of farmers where by these people are supposed to be given opportunities
to fight for their rights.
3. Direct democracy, classically termed pure democracy, This is the form of democracy
done through demonstration or referendum where by these people they lack representative
as well as participative democracy, so this is their only way of them to find their rights as
long as they don't cause inconvenience or problems to public their properties.
▪ Principles of democracy
1. The accountability- This holds that government officials whether elected or appointed by
23
those who have been elected are responsible to the citizenry for their decisions and actions.
The government should be willing to listen to people for their amend, faults and errors.
Article 53 Accountability of the Executive (1) Subject to the provisions of this
Constitution, the Prime Minister shall be accountable to the President for the exercise of
his authority.
2. Responsiveness- 53
Accountability of the Executive(2)The Executive of the United Republic, under the authority of
the President, shall be the organ having the power to determine the policy of the Government in
general, and Ministers under the leadership of the Prime Minister, shall be collectively responsible
in the National Assembly for the execution of the affairs of the Government of the United
Republic.
3. The transparency-This means everybody has the right to access governmental
information. Freedom of information is vital because it is only when citizens are properly
informed that they can participate in politics. Requires that the decisions and actions of
those in government are open to public scrutiny and that the public has a right to access
such information.
❖ ELECTORAL SYSTEM
Article 74 established the Electoral Commission (1) There shall be an Electoral Commission
of the United Republic which shall consist of the following members to be appointed by the
President: (a) a Chairman who shall be a Judge of the High Court or a Justice of the Court of
Appeal, who shall be a person with qualifications to be an advocate and has held those
qualifications for a period of not less than fifteen years; (b) a Vice-Chairman who shall be a
person who holds, had held or is capable of holding an office of Judge of the High Court or a
Justice of the Court of Appeal; (c) other members to be specified by a law enacted by
Parliament.
▪ Electoral systems can be divided into three general types:
1. Plurality electoral systems
Also called “first-past-the-post” or “winner-take-all” systems, plurality systems simply award a

seat to the individual candidate who receives the most votes in an election. The candidate need not
24
get a majority (50%+) of the vote to win; so long as he has a larger number of votes than all other
candidates, he is declared the winner. Plurality systems normally depend on single-member
constituencies, and allow voters to indicate only one vote on their ballot (by pulling a single lever,
punching a hole in the ballot, making an X, etc.) Plurality electoral systems also tend to encourage
the growth of relatively stable political systems dominated by two major parties (a phenomenon
known as “Duverger’s Law”).
▪ Such an electoral system, though, clearly does not represent the interests of all (or even
most) voters. In fact, since a candidate need have only a plurality of votes to be elected,
most voters may actually have voted against the winner (although their votes are split
among several candidates).
▪ Elections for the House and Senate in the United States and for the House of Commons in
the United Kingdom use the plurality system. The US presidential election is also generally
considered a plurality system, but the existence of the Electoral College actually makes it
a strange hybrid of plurality and majority systems.
2. Majority electoral systems
▪ Also called “second ballot” systems, majority electoral systems attempt to provide for a
greater degree of representativeness by requiring that candidates achieve a majority of
votes in order to win. “Majority” is normally defined as 50%-plus-one-vote. If no candidate
gets a majority of votes, then a second round of voting is held (often a week or so after the
initial ballot). In the second round of voting, only a select number of candidates from the
first round are allowed to participate.
▪ In some countries, such as Russia, the top two vote-getters in the first round move on to
the second round. In other countries, such as France, all candidates with a minimum
threshold percentage of votes (in the French case, 12.5% of all registered voters) move on
to the second round. Like plurality systems, majority systems usually rely on single-
member constituencies, and allow voters to indicate only one preference on their ballot.
▪ Presidential elections in Austria, Finland, Portugal, Russia and other east European states,
as well as presidential and National Assembly elections in France, make use of various
forms of majority electoral systems. The US Electoral College also has components of a
majority system; because a presidential candidate must get 50%-plus-one electoral votes
25
(270 out of 538) in order to win. If no candidate reaches the 270 mark, the election is
decided by the House of Representatives. In determining who votes for whom in the
Electoral College, though, the US presidential race is a strict plurality system: The
candidate who gets a plurality of the popular vote in a state gets all that state’s electoral
votes.
3. Proportional representation
▪ An electoral system in which parties gain seats in proportion to the number of votes
cast for them.
▪ Also known as “PR”, proportional representation is the general names for a class of voting
systems that attempt to make the percentage of offices awarded to candidates reflect as
closely as possible the percentage of votes that they received in the election. It is the most
widely used set of electoral systems in the world, and its variants can be found at some
level of government in almost every country (including the United States, where some city
councils are elected using forms of PR).
▪ The most straightforward version of PR is simply to award a party the same percentage of
seats in parliament as it gets votes at the polls. Thus, if a party won 40% of the vote it
would receive 40% of the seats. However, there are clear problems with such a system:
Should parties that receive only 0.001% of the vote also be represented? What happens if
the voting percentages do not translate evenly into seats? How do you award a party 19.5
seats if it got 19.5% of the vote? More sophisticated PR systems attempt to get around these
problems. Two of the most widely used are discussed below.
❖ CASES ON CONSTITUTIONAL LAW IN TANZANIA
1. Director of Public Prosecutions v. Daudi Pete15

➢ This appeal by the Director of public Prosecutions concerned the right of bail. The
respondent was charged with the offence of robbery with violence c/s 285 and 286 of the
Penal Code. The District court of Musoma denied him bail, as the offence was not bailable
15
Criminal Appeal No. 28 of 1990
26
under s.148 (5) (e) of the Criminal Procedure Act 1985. The respondent appealed to the
High Court. The High Court (Mwalusanya J.) held that s.148 (4) and (5) of the Act was
unconstitutional for violating several articles of the Constitution concerning Basic Rights,
and the doctrine of separation of powers between the Judicature and Legislature, and
therefore granted bail. The DPP was aggrieved by the decision, hence this appeal. Held:
To the extent that s. 148(5) (e) violates the Constitution, it is declared null and void in terms
of article 64(5) of the Constitution. It is struck off the statute book. Appeal dismissed.
2. Hamisi Masisi and Others v. Republic16
▪ The applicants applied for variation of terms of bail imposed by the District Court of
Musoma that had already been varied. Their application was dismissed in that regard. The
High Court however proceeded to revise the order of the learned Resident Magistrate at his
request. His request was to review the appropriateness and legality of the order regarding
cancellation of bail, and to discuss the constitutional problem as to whether it is appropriate
for the executive (particularly a Regional Commissioner) to order detention of an accused
person for an offence he same accused is charged with in court, and in disregard of the
Court's order that the same accused is entitled to bail.
▪ Held: By its very nature, an order for bail should be a subject of variation or cancellation
by the Court that made it under s. 127, of the Criminal Procedure Code, where grounds for
cancellation are made out. In this instance, no case was made out for the Court to vary or
rescind its earlier order.
▪ A Regional Commissioner has no powers of arrest under s. 7(2) of the Regional and Area
Commissioners Acts (Amendment) Act. For these reasons, the Resident Magistrate had no
reasons in law and in fact to vary and cancel his order for bail he made on December
14,1978.
3. Julius Ishengoma Francis Ndyanabo v. Attorney General 17
▪ This was an appeal from the decision of the High Court (Kyando, and Ihema JJ, Kimaro J.
dissenting), dismissing a petition filed by the appellant for a declaration that S. 111(2), (3)
16Miscellaneous Criminal Cause No. 54 of 1978

17
Civil Appeal No. 64 of 20 (CA).
27
and (4) of the Elections Act 1985 was unconstitutional for violating Article 13(1), (2), and
6(a) of the Constitution. In a general election held in October 2000, the appellant, an
advocate by profession, contested the Parliamentary seat in Nkenge Constituency. He lost
the election according to the election results. He was aggrieved by the results and in
accordance with s 111(1) of the Elections Act; he filed a petition before the High Court,
challenging the validity of the declared victory of one of his opponents in the election. The
appellant decided instead, to file, under Article 30(3) of the Constitution and S.4 of the
Basic Rights and Enforcement Act, 1994, a petition challenging the constitutionality of the
subsection and praying for a declaration that the said statutory provision was
unconstitutional on the ground that it was arbitrary, discriminatory, and unreasonable. The
majority decision of the High Court accepted this reasoning and decided that the petition
lacked merit and held that s. 111(2) of the Elections Act, 1985 as amended was in tandem
with Article 30(1) and 2(a) and (f) of the Constitution, imposing limitations upon the
enforcement and preservation of basic rights, freedoms and duties hence this appeal.
▪ Held:The Constitution is a living document with a soul and consciousness as reflected in
the Preamble and Fundamental Objectives and Directive Principles of State Policy. Section
111(2) of the Elections Act, 1985 declared unconstitutional ab initio.
4. Kukutia Ole Pumbun and Another v. Attorney General and Another 18.
▪ The appellants sought to sue the Government in the High Court to recover damages for
trespass, assault, and conversion. The necessary fiat or consent to sue the Government was
withheld. The High Court was called upon to rule on the constitutionality of s.6 of the
Government Proceedings Act, 1967 as amended by Act 40 of 1974.
▪ The respondent filed a preliminary objection that the suit was incompetent for want of the
Attorney General's consent to sue the Government. The High Court (Munuo J.) dismissed
the suit as being incompetent holding that s.6 of the Government Proceedings Act was not
unconstitutional.
▪ The appellant appealed. Counsel for the appellant submitted that s.6 of the Government
Proceedings Act was null and void and should be struck down as it violated the guaranteed
right of unimpeded access to Courts contrary to articles 13(3), and (6), and 30(3) of the
Constitution.
18Civil Appeal No. 32 of 1992 (CA)
28
▪ He further submitted that the combined effect of that was that the section offended against
the separation of powers by enabling the Government to exercise a judicial function of
deciding upon its civil liability or the extent of that liability and hence decide whether it
should be sued or not. This enabled the Government to be a judge in its own cause. It also
offended against the principle that requires the Government to be responsible and
accountable to its people. It went against the principle of openness or transparency. He
also submitted that s. 6 could not be saved by article 30(2) (b) of the Constitution, which
permits derogation from human rights in certain circumstances, as it was to general in its
application. He further contended that the law in Zanzibar did not impose such limitation
and therefore s. 6 was discriminatory and unconstitutional.
▪ Counsel for the Government argued that s.6 was justified in public interest as it enabled
the Government to regulate and control the suits which were brought against it. She further
argued that to remove it would open the floodgates for frivolous and vexatious litigation,
and as such was saved by article 30(2) of the Constitution. She also argued that the
Government and the individual could not be equal as the Government had the responsibility
of looking after the wider interests of the society at large.
▪ She also argued the violation where the consent was withheld, the victim of the violation
had a remedy as he/she could apply for orders of mandamus or certiorari.
▪ Held: There is no justification for a complainant of a violation of a basic human right to be
restricted to other forms of remedy under article 30(3) of the Constitution. A complainant
should be free to choose the best method legally open to him to prosecute his cause. Section
6 violated the basic human right of unimpeded access to the Court to have one's grievances
heard and determined guaranteed under articles 13(3) and 30(3) of theConstitution.
5. Mbushuu alias Dominic Mnyaroje and Another v. Republic 19.

▪ The High Court of Tanzania convicted the two appellants of murder of Saidi
s/o Jingu. The deceased was a herd's boy keeping cattle and goats for one Naftali
191995 CA
29
s/o Ngamaa. On September 6, 1984, the deceased was killed and cattle and
goats robbed. On the basis of the evidence of two people who received the
stolen animals, and who were earlier arrested and detained for the murder and
named other people other than the appellants as the people who gave the
animals, the trial Judge convicted the appellants. After submissions on the
Constitutionality of the death sentence, the learned trial Judge declared the
sentence unconstitutional and committed each of the appellants to life
imprisonment.
▪ The appellants appealed against conviction on the grounds that their evidence
as well as the corroborating evidence was not reliable. The State supported the
conviction but appealed against sentence arguing that the death penalty was not
cruel, inhuman and degrading punishment. The appeals were consolidated. One
of the issues for determination was whether the death penalty is one of the
instances where due process of law would deny a person his right to life and its
protection, and contravened article 13 (6) (d) and (e) of the Constitution.
▪ HELD: Article 13(6) (d) seeks to protect the dignity of a person in the execution
of a punishment. Torture, inhuman punishments and degrading punishments are
prohibited. Punishments, which are not prohibited, have to be executed in such
a way as to protect the dignity of a person.
▪ The death penalty is inherently inhuman, cruel, and degrading punishment and
its execution also offends article 13(6) (d) and (e) of the Constitution.
▪ Article 30(2) of the Constitution allows derogation from basic rights of the
individual in public interest. A law that allows derogation should be lawful in
that it should not be arbitrary, and it should be proportional in that the limitation
should not be more than reasonably necessary.
▪ The death penalty as provided for in s. 197 of the Penal Code was not arbitrary
and was a measure reasonably necessary to protect society, and is therefore
saved by article 30(2) of the Constitution.
▪ It was therefore not unconstitutional. Both appeals allowed. Conviction for
murder quashed and sentence of life imprisonment set aside.
30
6. Attorney General v. Lohay Akonaay and Joseph Lohay 20
▪ The respondents, namely Lohay Akonaay and Joseph Lohay were father and son, resident
in the village of Kambi ya Simba, Mbulumbulu Ward, Mbulu District, in Arusha Region.
In January 1987, they successfully instituted a suit for recovery of land held under
customary tenure. An eviction order was subsequently issued for the eviction of the
judgment debtors and the respondents were given possession of the piece of land in
question.
▪ At the time of the decision in the present case, Civil Appeal No. 6 of 1991 was pending in
the High Court. Before that appeal could be disposed of, a new law, the Regulation of Land
Tenure (Established Villages) Act 1992 came into force on December 28, 1992. It declared
the extinction of customary rights in land, prohibiting the payment of compensation for
such extinction, ousting the jurisdiction of the courts, terminating proceedings pending in
the courts, and prohibiting the enforcement of any court decision or decree concerning
matters in respect of which jurisdiction was ousted.
▪ It also established, inter alia, a tribunal with exclusive jurisdiction to deal with the matters
taken out of the jurisdiction of the courts. Aggrieved by this new law, the respondents
petitioned against the Attorney General in the High Court under Articles 30(3) and 26(2)
of the Constitution of the United Republic of Tanzania, for a declaration that the new law
was unconstitutional and consequently null and void.
▪ The High Court (Munuo J.) granted the petition and ordered the new Law to be struck off
the statute book. The Attorney- General appealed and hence the present appeal.
▪ From the lower court records, it was established that during the colonial days, the
respondents acquired a piece of land under customary law. Between 1970 and 1977, there
was a country-wide operation undertaken in the rural areas by the government and the
ruling Party, to move and settle the majority of the scattered rural population into villages
on the mainland of Tanzania. One such village was Kambi ya Simba, where the
respondents resided. During the exercise, commonly referred to as operation Vijiji, there
was widespread re-allocation of and between the villagers concerned. Among those
20Civil Appeal No. 31 of 1994
31
affected were the respondents, who were moved away from the land they had acquired
during the colonial days to another piece of land within the same village. The respondents
were apparently not satisfied with this reallocation and it was for the purpose of recovering
their original piece of land that they sued in the case already mentioned. Before their case
could be concluded in 1989, the Extinction of Customary Land Right Order 1987 was made
by the appropriate Minister under the Land Development (Specified Areas) Regulations
1936 and the Rural Lands (Planning and Utilization) Act, 1973.
▪ The Order extinguishing all customary rights in land in 92 villages within Arusha Region
listed in a schedule and vested the land concerned in the respective District Councils having
jurisdiction over the area where the land was situated.
▪ The respondents' village was listed as No. 22 in that schedule.
▪ Held: The President holds public land on trust for the indigenous inhabitants of that land.
As trustee of public land, the President cannot deal with public land in a manner in which
he wishes or which is detrimental to the beneficiaries of public land. He may deal with it
only where it appears to him to be in the general interests of Tanganyika.
▪ The Constitution is supreme to every other law or institution and cannot be interpreted in
a manner that subordinates it to any other law.
❖ CONSTITUTIONALISM
WHAT IS CONSTITUTIONALISM
Constitutionalism This is that which describes what the constitution does or is "a complex of
ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government
derives from and is limited by a body of fundamental law".
▪ Modern constitutionalism
It is the document which indicates how the state power should be exercised and also nominative
that state out of value that should upheld the governing process.
❖ WEST MINISTER CONSTITUTIONALISM
This was originated from United Kingdom, U.K doesn't have constitution but it has constitutional
law thus it has sets of rules defines composition, functions and relationship of institutions of a
32
government. The constitutional law in U.K developed from different conventions. The following
below are the characteristics of west-minister modern constitutionalism;-
1. Constitutional monarch- Here is where by the head of the state is a king who controls the
state. The monarch has no legislative powers it has powers of veto (reject), the powers
which it had have been transferred to other institutions i.e judiciary and legislature. In the
monarch the Queen is the head of the state but not head of government.
2. Parliamentary supremacy-Parliamentary sovereignty (also called parliamentary

supremacy or legislative supremacy) is a concept in the constitutional law of some
parliamentary democracies. It holds that the legislative body has absolute sovereignty, and
is supreme over all other government institutions, including executive or judicial bodies.
Though the parliament is supreme but it is limited by specific procedures e.g;- Quorum
which means the minimum number of members of an assembly or society that must be
present at any of its meetings to make the proceedings of that meeting valid.
▪ Parliamentary sovereignty may be contrasted with the doctrines of separation of powers,
which limits the legislature's scope often to general law-making, and judicial review, where
laws passed by the legislature may be declared invalid in certain circumstances. Many
states have sovereign legislatures, among which are the United Kingdom, Finland, Israel,
Netherlands, New Zealand, Jamaica, Barbados, Papua New Guinea, the Solomon Islands,
and Sweden.
3. Parliamentary government(system) -is a system of democratic governance of a state in

which the executive branch derives its democratic legitimacy from, and is held accountable
to, the legislature (parliament); the executive and legislative branches are thus
interconnected. In a parliamentary system, the head of state is normally a different person
from the head of government. This is in contrast to a presidential system in a democracy,
where the head of state often is also the head of government, and most importantly: the
executive branch does not derive its democratic legitimacy from the legislature.
▪ In U.K the government is formed by the party which has large number in the parliament,
where by members of executive are also members of parliament also the leader of the
majority party in parliament is automatically becomes prime minister.
33
4. Collective & individual responsibilities–The member of a parliament who is a member

of executive body is responsible for all responsibilities as a member of parliament and as a
minister.
5. Judiciary independence-is the concept that the judiciary needs to be kept away from the
other branches of government. Judicial Independence is vital and important to the idea of
separation of powers. Historically Judiciary was not independent because it was under the
King sometimes they were called servants of the King but now in U.K Judiciary is
independent e.g;- the judge cannot be dismissed by the King but can be dismissed due to
his incompetence or illness after the vote of House of Lord & Common.
▪ The payment of the judge is fixed by the parliament. The establishment of the contempt of
the court, this is where by a person who didn't obey the order of the court he may be
punished by the court.
6. Representative government & the party system-An electoral system where citizens vote
to elect people to represent their interests and concerns. Those elected meet to debate and
make laws on behalf of the whole community or society, instead of the people voting
directly on laws and other debates. This governmental system is used mostly in Australia
and the United States. In U.K the majority party is the one which form the government
through election.
❖ AMERICAN CONSTITUTIONALISM
▪ American constitutionalism has been defined as a complex of ideas, attitudes, and patterns
of behavior elaborating the principle that the authority of government derives from the
people, and is limited by a body of fundamental law. These ideas, attitudes and patterns of
behavior, according to one analyst, derive from "a dynamic political and historical process
rather than from a static body of thought lay down in the eighteenth century".
▪ In U.S. history, constitutionalism in both its descriptive and prescriptive sense has
traditionally focused on the federal Constitution. Indeed, a routine assumption of many
scholars has been that understanding "American constitutionalism" necessarily entails the
thought that went into the drafting of the federal Constitution and the American experience
with that constitution since its ratification in 1789.
▪ Characteristics of American constitutionalism
1. The separation of power-is a political doctrine originating in the writings of Montesquieu
34
in The Spirit of the Laws where he urged for a constitutional government with three separate
branches of government. Each of the three branches would have defined abilities to check
the powers of the other branches. This idea was called separation of powers. This
philosophy heavily influenced the writing of the United States Constitution, according to
which the Legislative, Executive, and Judicial branches of the United States government
are kept distinct in order to prevent abuse of power. This United States form of separation
of powers is associated with a system of checks and balances.
2. Federal division of power- Federalism is the system of government in which power is
divided between a central government and regional governments; in the United States, both
the national government and the state governments possess a large measure of sovereignty.
3. Constitutional supremacy-The Supremacy Clause is where by the constitution is higher
than any other law, federal statutes, and treaties as "the supreme law of the land." It
provides that these are the highest form of law in the United States legal system, and
mandates that all state judges must follow federal law when a conflict arises between
federal law and either a state constitution or state law of any state. Nullification is the legal
theory that states have the right to nullify, or invalidate, federal laws which they view as
being unconstitutional; or federal laws that they view as having exceeded Congresses’
constitutionally authorized powers.
4. Bill of right-is the collective name for the first ten amendments to the United States
Constitution. The Bill of Rights enumerates freedoms not explicitly indicated in the main
body of the Constitution, such as freedom of religion, freedom of speech, a free press, and
free assembly; the right to keep and bear arms; freedom from unreasonable search and
seizure, security in personal effects, and freedom from warrants issued without probable
cause.
5. Judiciary review-is the doctrine under which legislative and executive actions are subject
to review by the judiciary. A court with judicial review power may invalidate government
laws and decisions that are incompatible with a higher authority, such as the terms of a
written constitution. Judicial review is one of the checks and balances in the separation of
powers: the power of the judiciary to supervise the legislative and executive branches.
Case;- Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).
35

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MWAKISIKI MWAKISIKI EDWARDS

❖ CONCEPTUAL ANALYSIS AND CLASSIFICATION OF

❖ Meaning of Constitutional Law

❖ Constitutional Law Differentiated From Administrative Law

❖ TYPES OF CONSTITUTIONS AND THEIR COMPARISON

(b) Rigid and Flexible Constitution

▪ The constitution of England is a typical example of a flexible constitution. The British

(c) Civil and Military Constitution

(f) Presidential and Parliamentary Constitutions

▪ Parliamentary System of Government

❖ THE DOCTRINE OF SEPARATION OF POWER

3. Definition of separation of powers

❖ Montesquieu’s strict doctrine (tripartite system).

b) Modern (Contemporary) approach

▪ To them, Montesquieu’s strict doctrine presents the following problems:-

adhere to the doctrine strictly. However, a cross-section of constitutional jurists worldwide

3. A chart of the state system

▪ Procedure for altering(change) the Constitution and certain laws Article 98 of

1. Representative democracy (also indirect democracy) - is a form of government founded

▪ Electoral systems can be divided into three general types:

1. Plurality electoral systems

Also called “first-past-the-post” or “winner-take-all” systems, plurality systems simply award a

2. Majority electoral systems

1. Director of Public Prosecutions v. Daudi Pete15

16Miscellaneous Criminal Cause No. 54 of 1978

18Civil Appeal No. 32 of 1992 (CA)

5. Mbushuu alias Dominic Mnyaroje and Another v. Republic 19.

6. Attorney General v. Lohay Akonaay and Joseph Lohay 20

20Civil Appeal No. 31 of 1994

❖ WEST MINISTER CONSTITUTIONALISM

2. Parliamentary supremacy-Parliamentary sovereignty (also called parliamentary

3. Parliamentary government(system) -is a system of democratic governance of a state in

4. Collective & individual responsibilities–The member of a parliament who is a member

1. The separation of power-is a political doctrine originating in the writings of Montesquieu

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