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PRELIMINARY
Unfortunately,
there is no one single meaning of a term constitution. Every state may define
constitution as they think fits their needs. Generally, constitution is a
collection of principles and rules through which members of the particular
state agrees to follow. Are the basic principles, norms and laws of a nation,
state, or social group that determine the powers and duties of the government
and guarantee certain rights to the people in it[1]. Constitution is a Bible
or Quran[2] of a state, it provides
guidelines on establishment and operation of the state organs such as
parliament, judiciary and executive, it also provides limits to the powers
imposed to the government so as to secure the rights of individuals. The
constitution may go far more to prohibit some activities in the state basing on
traditions of the particular state. Constitution contains general principles
and rules governing the state, but there are other valid laws which govern other
activities in the country. Constitution is a superior law and all other laws
made subordinate to it must conform to the articles of the constitution
otherwise those laws will be null and void[3].
Constitution
is expression of will or desire of the people on how they want their country to
be, it is also a social contract between the executive as an entity and the
citizens. The constitution is as good as a written contract between citizens
and those holding public offices, there are duties, responsibilities and
limitations imposed to public leaders, when they fail to implement their duties
or when happens they exceed limitations imposed, citizens may punish them or
take action against them. There are several types of constitutions such as
written and unwritten constitution, flexible and rigid constitution, unitary
and federal constitution, democratic constitution, republic and monarchical
constitution, presidential and parliamentary constitution. In Tanzania, our
constitution is a written constitution where all principles and rules are contained
in one document. The best example of unwritten constitution is the British
constitution, it is not compiled in one document but can be found in various
sources include legislations, treaties and precedents. Our constitution also falls
under unitary and federal constitution because Tanzania is union country.
THE
CONSTITUTION ESTABLISHES THE STATE
The
constitution is a superior law of the land hence all activities in the country
depends on the guidelines from the constitution. The constitution establishes
the organs of the state, and several other institutions and department in the
government. The constitution provides on fundamental rights of citizens, powers
and limitation of government authorities, the mode of acquiring public leaders
through election, impeachment etc.
Organs
of the state. Article 4(1) of the constitution[4] provides that; all state
authority in Tanzania 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. The organs vested with executive powers are the government of the united
republic and the revolutionary government of Zanzibar; the organs vested with
judicial powers are the judiciary of the united republic and the judiciary of
the revolutionary government of Zanzibar; and the organs vested with
legislative and supervisory powers over public affairs are the parliament of
the untied republic and the house of representatives. All these organs of the
state exercise its functions basing on the provisions of articles of
constitution and other legislations without interference from each other.
The
executive is contained between Article 33-61 of the
constitution. Article 33 provides on the head of the government, the head of
the state and the commander in chief of the armed forces who is a president of
United Republic. The government of Tanzania have powers over all union matters
and over all matters concerning Tanzania mainland, while non-union matters are
left under control of revolutionary government of Zanzibar. The President must
be elected by the citizen in accordance with the provisions of the Constitution
and in accordance with the law enacted by Parliament. A person will be entitled
a right to run for presidential only if, he is a citizen of the United Republic
by birth in accordance with the citizenship law, he has attained the age of
forty years, he is a member of, and a candidate nominated by, a political party,
he is qualified to be a Member of Parliament or a Member of the House of
Representatives of Zanzibar, and he must, within the period of five years
before the General Elections, he has not been convicted by any court for any
offence relating to evasion to pay any tax due to the Government (see Art.38).
The
legislature is another organ of the state established
under Article 62 of the constitution[5], the legislature is made
up of two parts to say, a president of united republic and national assembly.
The National Assembly consists of all categories of members of parliament that
to say, members elected to represent constituencies, women members, five members
elected by the house of representatives from among its members, the Attorney
General, not more than ten members appointed by the President and the
speaker, if he is not elected from amongst the members. The president exercises
all functions in relation to legislature especially assenting bills, calls
parliament sessions and he may dissolve parliament. Parliament is given powers
under our constitution to make and unmake laws relating to union matters and
affairs of Tanzania mainland. House of representatives of Zanzibar is given
powers to make and unmake laws of Zanzibar. In case they exceed powers in
making and unmaking laws, their actions are null and void with no legal force.[6]
The
constitution under Article 67 provides on special criteria or qualification to
be member of parliament. Only a person who is a citizen of the United Republic
who has attained the age of twenty-one years and who can read and write in
Kiswahili or English; and is a member and a candidate proposed by a political
party can qualify for position of member of parliament. A person of unsound
mind, who has been convicted by any court in the United Republic and sentenced
to death or to a term of imprisonment exceeding six months for any offence
however styled involving dishonesty, acquired citizenship of another country
cannot qualify to contest for member of parliament.[7]
Judiciary
of
United Republic of Tanzania under Article 107A of the constitution. Judiciary is
the authority with final decision in dispensation of Justice in United Republic
of Tanzania. In dispensing justice, court of law will abide to a principle of impartiality
to all without due regard to one’s social or economic status, not to delay
dispensation of justice without reasonable ground, to award reasonable
compensation to victims of wrong doings committed by other persons, and in
accordance with the relevant law enacted by the Parliament, to promote and
enhance dispute resolution among persons involved in the disputes and to
dispense justice without being tied up with technicalities provisions which may
obstruct dispensation of justice. In dispensing justice, judiciary of Tanzania
is given independence to decide matters before it without being forced or being
influenced by external motives, the judiciary is totally protected from
interference from government but there are still loops which need to be fixed
so as to give judiciary entire freedom from being interfered.
The
constitution establishes High Court and Court of Appeal of United Republic of
Tanzania, it provides on modes of acquiring judges of High Court and Appellate
court, it provides on tenure and remunerations, procedures relating to
discipline, judges’ oaths etc. The constitutions establish the Judicial
Services Commission, its members and functions. The functions of the commission
are stated under Article 113 of the constitution include to advise the president
regarding appointments of the judges of the High Court, to advise the president
on matters relating to discipline of Judges, to advice the president in
relation to salaries and remuneration for judges, to advise the president in
respect of appointment and discipline for registrar of the Court of Appeal and
the Registrar of the High Court, to appoint magistrates and control their
discipline, to establish various committees for purposes of implementation of its
functions.
CONCLUSION
Constitution
is said to establish a state because all organs, departments, institutions of
the state are established by constitution or other laws subordinate to the
constitution. Constitution governs and provides guidelines of almost every
activity in the country and modes of exercising government functions and its
limitations. The constitution of Tanzania for-example, establishes The National
Electoral Commission under Article 74 of the constitution. It provides on the
mode of acquiring its members include chair and deputy chairperson of the
commission, their time in office, and qualifications to be appointed as member
of the commission. Article 44 gives power to the president to declare war if
the country is facing military invasion by foreign countries etc. If a
president breaches a constitution, or involved in any misconduct which is
against the ethics of a head of state, a president can be removed from office
through impeachment under Article 46A. Generally, constitution is Bible or
Quran of the state because it establishes almost all organs of the state.
If
is a bill for an Act to alter any provisions of the constitution (other than
those relating to paragraph (b) of sub article 1 of Article 98) or any
provisions of any law specified in the list one of the second schedule to the constitution
shall be supported by the votes of not less than two
thirds of all the Members of Parliament.
Article
98(1)(a)
of the constitution provides on the procedure to amend non-union matters provisions
of the constitution, when amending provisions of the constitutions which its
content does not form part of union matters, the bill to amend must be
supported by the votes of not less than two thirds of all the Members of
Parliament.[2]
If
is a bill for an Act to alter any provisions of the constitution or any
provisions of any law relating to any of the matters specified in list two of
the second schedule to the constitution must 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.
List
two of second schedule includes all union matters. When the constitution
amendment intends to amend provisions on union matters such as the constitution
of Tanzania and the government of the united republic, foreign affairs. defense
and security, police, emergency powers, citizenship, immigration, external
borrowing and trade, service in the government of the United Republic, income
tax payable by individuals and by corporations, customs duty and excise duty on
goods manufactured in Tanzania collected by the customs department, harbors,
matters relating to air transport, posts and telecommunications, all matters
concerning coinage and currency for the purposes of legal tender (including
notes), banks (including savings banks) and all banking business; foreign
exchange and exchange control, industrial licensing and statistics, higher
education, mineral oil resources, including crude oil other categories of oil
or products and natural gas, the national examinations council of Tanzania and
all matters connected with the functions of that council, civil aviation, research,
meteorology, statistics, the court of appeal of the United Republic and registration
of political parties and other matters related to political parties must be 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.[3]
Lastly,
the constitution allows amendment of its articles as per special procedures and
principles as provided under Article 98. Likewise, it was unclearly on what can
be amended and what cannot be amended in constitution. In the case of Rev. Christopher Mtikila v. Attorney General[4],
Lugakingira J stated 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…”
Later
this position changed in the case of Attorney General v. Rev. Christopher Mtikila[5]. The decision in this case
overruled the entirely the decision of Lugakingira J on the limitations imposed
by such decision on amending the core features of the constitution. Basing on
the ruling of this case, the court of appeal stated that,
“…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…”
[2] J.Nchalla, “union vs non-union
matters”, available at <
https://johnchalla.wordpress.com/2017/08/09/union-vs-non-union-matters/>
accessed January 27, 2022
[3] Daily news, “areas f union
matters”, available at < https://dailynews.co.tz/news/2020-04-265ea541dadb2aa.aspx>
accessed January 27, 2022
[4] Christopher Mtikila v. Attorney
General [1995] TLR 31
[5] Attorney General v. Rev.
Christopher Mtikila, Civil Appeal No 45 OF 2009, CAT 2010 (unreported)
REFERENCE
BOOKS
Dicey,
A.V, “Introduction to the study of law”, 8th EDN, McMillan and
company ltd, 1925.
C.K
Mtaki, & Okema, Constitution And Reform And Democratic Governance In Tanzania,
Ideas on liberty, Training in freedom.
SERVAI,
H.M, Constitutional law in India, the critical commentary, 3rd edn, Bombay, and
London, sweet and Maxwell, 1984.
STATUTES
The
Constitution of United Republic of Tanzania, Cap 2 of 1977 as amended, Art.4
OTHER
SOURCE
Merriam-webster,
“constitution”, available at
<https://www.merriam-webster.com/dictionary/constitution> accessed
January 26, 2022.
Deccanherald,
“Constitution is Gita, Bible and Quran for us: Fadnavis”, available at https://www.deccanherald.com/national/west/constitution-is-gita-bible-and-quran-for-us-fadnavis-759409.html>
accessed January 26, 2022.
Law
Teacher, “constitution is a supreme law”, available at <
https://www.lawteacher.net/free-law-essays/constitutional-law/a-constitution-is-a-supreme-law>
accessed January 26, 2022.
Parliament,
“functions of parliament”, available at <
https://www.parliament.go.tz/pages/functions> accessed January 26, 2022
CMI,
“The Accountability Function of Parliament in New Democracies: Tanzanian
Perspectives”, available at <
https://www.cmi.no/publications/1954-the-accountability-function-of-parliament-in-new>
accessed January 26, 2022
[1]Merriam-webster, “constitution”,
available at <https://www.merriam-webster.com/dictionary/constitution>
accessed January 26, 2022.
[2]Deccanherald, “Constitution is Gita,
Bible and Quran for us: Fadnavis”, available at https://www.deccanherald.com/national/west/constitution-is-gita-bible-and-quran-for-us-fadnavis-759409.html>
accessed January 26, 2022.
[3]Law Teacher, “constitution is a
supreme law”, available at <
https://www.lawteacher.net/free-law-essays/constitutional-law/a-constitution-is-a-supreme-law>
accessed January 26, 2022.
[4] The Constitution of United
Republic of Tanzania, Cap 2 of 1977 as amended, Art.4
[5] ibid
[6] Parliament, “functions of
parliament”, available at < https://www.parliament.go.tz/pages/functions>
accessed January 26, 2022
[7] CMI, “The Accountability Function
of Parliament in New Democracies: Tanzanian Perspectives”, available at <
https://www.cmi.no/publications/1954-the-accountability-function-of-parliament-in-new>
accessed January 26, 2022
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