Is constitution applicable as ordinary law in courts of Tanzania?

Introduction  

Constitution[1] refers the rules and practices that determine the composition and function of the organs of central and local government in a state and regulate the relationship between the individual and the state. Most states have written constitution, one of the fundamental provisions of which is that it can be itself amended only accordance with special procedure The Constitution of United Republic of Tanzania of 1977 and the evolution of the Tanzania Constitution, the Constitution of United Republic of Tanzania 1977 which amended time to time which is the basic law of the land is the written constitution. It is supreme law above all other law whether written or unwritten, as we say the basic law of  the land is which all other law must conform and which lead us the law applicable in Tanzania or supported in Article 64(5) of the Constitution of United Republic of Tanzania 1977 which amended time to time.[2] In the case of Julius Ishengoma Francis Ndiyanabo v Attorney General (2001) Court of Appeal civil Appeal no.64 of 2001, in this case the appellant filed a petition for a declaration that section 111(2), (3) and (4) of the Elections Act, 1985 (the Act), is unconstitutional for being violative of Article 13(1), (2) of the United Republic of Tanzania of 1977 it was held that the law was unconstitutional that impedes the right to access justice it declared to be null and void

            Ordinary law  [3] this is the normal law generally distinguished from a Constitutional law or other similar law. Typically ordinary laws are subordinate to constitutional and are more easily changed than constitutional. Normally in democracy, an ordinary laws must first obtaining a simple majority of a parliament or other legislature as per Article 63(3) (d) of the Constitution of United Republic of Tanzania of 1977, and then be signed into law by the representation of Executive power. In Tanzania ordinary laws are applicable under section 2 (3) of Judicature and Applications of Laws Act[4]

Why Constitution of the United Republic of Tanzania (as amended) is not an ordinary law for application in courts in Tanzania?

As the general rule, the Constitution of the United Republic of Tanzania of 1977 as amended time to time is not an ordinary law due to the followings reasons;

            The constitution is very general, this means that not all provisions provided under constitution of United Republic of Tanzania 1977 can be enforced before the court of law, for example under article 11 provided for the right to work and education, but constitution does not specify if that right have been breach where and how you can enforce that right.

            The constitution is not the law to be immediately consulted when the maker is presented to the court for determination, when the court dealer with any matter, it is not direct go to the provision of the constitution, first the court look for the ordinary law which involves of the statutes enacted by the parliament which are statutes such are Land Act, Penal Code, Contract Act and other statutes. It is normally depend on the matter of which nature, if it is criminal matter the court has to look for what is provided under a Penal Code or Criminal Procedure Act. The ordinary laws are normally specific and they are also provided punishment or compensation in case if anything is breached.

Constitution is not the law to be applied by the court in solving the problem presented before it. If then exist no exceptional circumstance making it in application, for example under Article 14 of the Constitution of the United Republic of Tanzania of 1977 as amended time to time   provided the Right to life, that every Person has the right to live and to the protection of his life by the society in accordance with the law. Once this right be breached, constitutional cannot stand to resolve that right, because under Tanzania penal Code in section 196[5] provide that any person who commit an offences of murder he will be sentenced by death penalty. Although here right to life is breached but the law is not inconsistence with the constitution due to fact that if you have been imposed the right and you have breach if you cannot enforce again, In the case of Dominic Alias Mbushuu Mnyaroje and Another v Republic, [6] in this case the High Court of Tanzania convicted two appellants of murder; 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 appeals against sentence arguing that the death penalty was not cruel, inhuman and degrading punishment. 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.[7] It was held that the death penalty is inherently inhuman, cruel and degrading punishment and its execution also offends Article 13 (6) (d) and (e) of the Constitution. Also 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 arbitrary and it should be proportional in that the limitation should not be more than reasonably necessary. Therefore  the death penalty as provided for in section 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 unconstitutional.

Constitutional law is Fundamentally distinct from ordinary law, according to Dicey, it include all rules which directly or indirectly affect the distribution or the exercise of power in the state and which are enforced by the courts, while ordinary laws is made and enforced by the competent authorities of the state, and it determines the relations of the citizens to the state and to one another.

Conclusion

               Generally the Constitution of united Republic of Tanzania of 1977 as amended is not an ordinary law for application in courts in Tanzania, but is the fundamental law of the state that all law are derived from it and getting their validity and in any case of any law contravene with this constitution, the Constitution shall prevail and that law declared void. The main difference between constitutional and ordinary law, be it statute law, case law or convention, is that constitutional law is considered fundamental and above ordinary law in all cases. Although constitutions can be revised and/ or amended the process is extremely complex and time consuming.

BIBLIOGRAPHY

The Constitution of United Republic of Tanzania 1977

The Judicature and Applications of Laws Act [chapter 358]

A Dictionary of Law (2009), Oxford University Press, 7^th Edition

The Penal Code [chapter 16]

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[1] Oxford dictionary of law 7^th edition

[2] The Constitution of United Republic of Tanzania of 1977

[3] Sentencia de 13 de febrero de 1981, Tribunal constitucional de Espana

[4] Judicature and Applications of Laws Act [chapter 358]

[5] Chapter 16 (Revised Edition 2002)

[6] [1994] TLR 146

[7] The Constitution of United Republic of Tanzania 1977 as amended time to time