INTRODUCTION
In this post the discussion will dwell on the constitutional developments and constitutional making in Tanzania since independence in the year 1961. Tanzania since independence to date has had five constitutions which are: The Independence Constitution, 1961, The Republican Constitution, 1962, The Constitution of the United Republic of Tanganyika and Zanzibar, 1964, The Interim Constitution of Tanzania, 1965 and The Constitution of the United Republic of Tanzania, 1977 (as amended from time to time). All these constitutions will be discussed in details in terms of their structure and their making. Constitutional making means both amending the existing constitution and making the new constitution if need be. Basing on the fact that Tanzania is the union of Tanganyika and Zanzibar, whereby Zanzibar has her own constitution this part will also visit in depth the constitutional developments and constitutional making in Zanzibar as well. It is to be noted that since her independence Zanzibar has had three constitutions.
The Independence Constitution, 1961.
The first constitution of Tanganyika was the Tanganyika Order in Council, 1961. This was referred to as the Independence Constitution, 1961. The Independence constitution of 1961 was a result of a consensus between Tanganyika under TANU that was led by Mwalimu J. K. Nyerere, and the British Colonial government. The intensive discussions between the two sides made the British colonial government to grant Tanganyika her independence on 9th December, 1961 without bloodshed. The Colonial government through her Legislature passed the Tanganyika Order in Council that gave Tanganyika her independence and declared Tanganyika to be a sovereign State. Thus, the first constitution of Tanganyika was an Act of Parliament. The constitution made provisions that established the organs of the state that is the Executive, the Parliament and the Judiciary. It also recognized the fundamental freedoms (Bill of Rights), citizenship matters were also included in the Independence constitution. The form of government under the first constitution was very much based on the Westminster model with a sovereign parliament, multiparty democracy, a prime minister and the Governor General as head of state representing Her Majesty the Queen of England.
The Executive
The executive was made up by the Governor General, Prime Minister, the Cabinet (Ministers) and the Parliamentary secretaries.
The Governor General
The Governor General was Her Majesty appointee and held the office at her pleasure. The office of Governor General was established via Article 11 of the constitution. The Governor General represented Her Majesty in Tanganyika and exercised all powers vested to him on her behalf. The Governor was also vested with powers to make appointments that constitute various offices and powers to terminate such appointments but in accordance with the provisions of the constitution. This power was vested to him via Article 54 of the constitution. The Governor also had powers to assent to Bills that were passed by the Parliament. No Bill became law unless it was assented to and signed by the Governor General on behalf of Her Majesty. The Governor had powers to appoint the Prime Minister from among the members of National Assembly. The Governor was enjoying prerogative of mercy vested to him via Article 55 of the independence constitution, however in exercising this power the Governor had to seek advice from the Minister designated in that behalf.
Prime Minister
The Prime Minister was the Governor General appointee from among the members of the National Assembly subject to the majority support of the members. Therefore the Prime Minister had to come from among the members of the Assembly and in case he ceased to be the member of the National Assembly then he is disqualified from holding the post of a Prime Minister. Article 42 of the constitution provides for the post of Prime Minister and circumstances where the office can fall vacant.
The Cabinet
The power to establish the cabinet apart from the Prime Minister was vested with the Parliament, however the Governor General on advice by the Prime Minister and subject to the provisions of any Act of Parliament could establish offices of Ministers, this power was conferred to him via Article 42(2) of the constitution. The Ministers were appointed from among members of the National Assembly and Ministers together with the Prime Minister formed the Cabinet of Ministers. The Cabinet was responsible to the Parliament with the major function to advice the Governor General.
Parliamentary Secretaries
Parliamentary Secretaries were appointed by the Governor General from among members of the National Assembly subject o the advice given to him by the Prime Minister. The Parliamentary Secretaries had the duty to assist Ministers in the performance of their duties.
Bill of Rights
The constitution recognized the basic human rights via the Bill of Rights that was found in the Preamble to the constitution. Thus, due to the fact preamble is not part of the constitution, the Bill of rights were never included in the constitution. The inclusion was resisted by TANU during the discussions that brought about the independence constitution. TANU was reluctant to have the Bill of rights entrenched to the constitution due to various reasons:
a) That during the constitutional talks leading to independence constitution TANU leadership ingeniously pointed out as a fact that the absence of a Bill of Rights in the unwritten constitution did not erode the rule of law in Britain. Therefore, it was useless exercise to try to force the same on the people of Tanganyika.
b) The popular support enjoyed by TANU during the constitutional conferences made it easier for TANU to have its way with little resistance. In the absence of a strong opposition political party, there was none to overcome TANU’s position that the Bill should be omitted from the constitution.
c) In Tanzania the urge for inclusion of a Bill of Rights in the constitution did not have much backing as was the case in some countries e.g. Kenya. In Kenya the white settler community with massive property acted as a catalyst for the demand of a Bill of Rights.
d. During the constitutional negotiations the TANU leadership windhooked the colonialists by presenting TANU as a nationalist movement that endeavoured to stick to legalistic formation and deliberately avoid unlawful agitation. Therefore the fear that TANU and its leaders would in future turn into an autocratic party was unthinkable.28
Therefore, the Bill of Rights was finally not included in the independence constitution, it only got recognized in the preamble and because the preamble was not part to constitution it became difficult to enforce the violation of the basic human rights. Meanwhile, it remained to be the idea of the newly independent Tanganyika under TANU government that the demand for inclusion of Bill of Rights by the British Colonial government did not target to safeguard the interests and rights of indigenous Tanganyikans but rather to protect themselves from actions that could probably be taken against them due mal-violation of human rights that they did during their rule. They feared the new government so they wanted to put in place, before they leave, conducive and safe environment that assured them that they were not going to be blamed and prosecuted against violations of human rights in colonial Tanganyika.
The Republican Constitution, 1962.
The Republic Constitution of 1962 replaced the Independence Constitution of 1961 following the publication of the White Paper, Government Paper No. 1 of 1962. The aim of the White Paper was to collect views from the public on the TANU government to enact the Republic Constitution that will Presidential in nature and make the Executive that is manned by the President. This was considered to be a big change in the history of constitutional making in Tanganyika and therefore the opinion of the public was of highly importance. After the discussions the National Assembly passed An Act of Parliament, The Constituent Assembly Act, Act No. 66 of 1962 that converted the National Assembly into a Constituent Assembly. The Act mandated the Constituent Assembly with the power to enact a new constitution. A Constituent Assembly is a special body usually created through election for the purpose of adopting a constitution. Once it completes that task it is dissolved. In constitutional theory the Constituent Assembly is considered a higher body than the Parliament. This is because the Parliament itself has been created by the Constitution which in turn was made by the Constituent Assembly. The powers of the Parliament are thus limited. A Constituent Assembly is considered a peoples’ instrument to make a constitution.29 Therefore the Constituent Assembly adopted the new constitution whose full citation is The Constitution of Tanganyika, 1962 Constitutional Act No. 1 of 1962. The Constitution of Tanganyika established the Executive under the President, The Legislature and the Judiciary. As it was with the Independence Constitution, 1961 the Constitution of Tanganyika did not include and recognize the basic human rights, instead the President proposed the creation of a National Ethic based on moral and political obligation with the idea of restraining the Executive from abuse and excessive use of its power. However it is obvious that since the National Ethic was not the Bill of right and because it based on the moral and political directives that the Executive had to abide to, did and could not in any way protect human rights in real sense.
The structure of the Constitution of Tanganyika, 1962.
The Executive
The powers of the Executive were vested with the President who was the head of the executive via Article 1 of the Constitution that declared Tanganyika to be the Sovereign Republic. The effect of the declaration was that executive powers that were once under the Crown were transferred to the Republic under the President of Tanganyika. The president via the Constitution assumed powers as the head of State and head of the government, commander-in-chief of the army and part of the parliament. By being part of the parliament the President had crucial power of signing Bills that were passed the National Assembly to be Laws. Bills only become laws once assented to and signed by the President of the Republic. The President by being part of the Parliament assumed powers to address the National Assembly. Shivji writes that, the form of government under the 1962 Constitution was thus a kind of a mix between a parliamentary and presidential system, though much more titled towards the presidential system. In many respects, the presidential system that was adopted was closer to the colonial arrangement where no law passed by the Legislative Council could become law without the assent of the Governor and the Governor commanded all power o behalf of the colonial state. The difference of course was that whereas the colonial Legislative Council was composed largely of appointed members, the National Assembly was an elected body. The Republican Constitution set the precedent for the concentration of power in the presidency, which was later to become the hallmark of subsequent constitutions.30 The Vice-president and the Cabinet also made the executive. The office of Vice- President was constitutionally established via Article 11 while the President via Sub-article 2 of the Article 11 established offices of Ministers, however both the Vice-President and the Ministers were to be the members of the National Assembly for them to be eligible to be appointed by the president on their respective offices. For the Vice- President there was an additional qualification and that was he was to be an elected member of the Parliament.
The Legislature
Two parts, the President and the National Assembly, made the Legislature, (the Parliament) whose main task was to make laws as it was in the Independence Constitution. The laws were made in two procedures, first the Bills were presented, discussed and upon the majority votes passed by the National Assembly. Second the passed Bills were presented to President for assenting and signing them. Once this procedure is complete the Bills became laws. The Parliament retained powers to amend various laws including the constitution. The Parliament is said to be in its Legislative capacity if its sits to make ordinary laws, and it is in constituent capacity if it amends the constitution. The Constitution provided on how the National Assembly was obtained and how it was dissolved. The National Assembly was an elected body and could be dissolve in three scenarios:
a. Pursuant to section 34(4) of the Constitution, that is, if the President dissolves the Parliament before assenting to a Bill sent to him for the second time within six months of its being returned to the National Assembly,
b. Pursuant to section 44(2)- President could at any time dissolve the Parliament. He was not bound to give reasons.
c. Pursuant to section 44(4)- when its life of 5 years expired.31
The Judiciary
The Constitution of the United Republic of Tanganyika and
Zanzibar, 1964.
This was the third Constitution, which was the result of the Union between Tanganyika and Zanzibar on 26th April 1964. The union was born after the signing of the Articles of Union to unite two countries by the President Julius Kambarage Nyerere on behalf of the people of Tanganyika and President Abeid Amani Karume on behalf of the people of Zanzibar. The Articles of Union signed by two Presidents for their respective States was a treaty to enter into union. The Parliament of Tanganyika by an Act of Parliament called the Union of Tanganyika and Zanzibar Act, 1964, ratified the Articles of Union. (No. 22 of 1964) There is uncertainty as to whether the Acts of Union were ratified by the Revolutionary Council of Zanzibar because the Act was not published in the Government Gazette of Zanzibar, it is just said that the Acts were ratified by the Revolutionary Council of Zanzibar under the Union of Tanganyika and Zanzibar, 1964 (see the book on Constitutional and Legal systems of Tanzania by Professor Shivji and others for more discussion on this aspect of uncertainty on part of Zanzibar). However in law whether the treaty is ratified or not it binds the subjects who signed it for that matter the people of Zanzibar are bound by the Acts of Union as it is the fact to the colleagues of Tanganyika.
Under the authority given to him by the Acts of Union (Articles of Union), the President of Tanzania issued a Decree entitled The Interim Constitution Decree, 1964(Government Notice No. 246 of 1/5/64) modifying the Constitution of the Republic of Tanganyika to make provision for the Union. The new, modified constitution was called the Interim Constitution of themUnited Republic of Tanganyika and Zanzibar.
The Interim Constitution of Tanzania, 1965
The Interim Constitution of Tanzania of 1965 was the fourth constitution in the history of constitution making in Tanzania. It is highly referred to as One Party Constitution due to the fact that it established a one party state via Article 3 which stated “There shall be one political party in Tanzania” and “until the union of Tanganyika African National Union with the Afro-Shirazi Party the Party shall, in and for Tanganyika, be the Tanganyika African National Union and, in and for Zanzibar be the Afro-Shirazi Party.”
The interim constitution was inacted in the parliament just any other Acts of Parliament, it lacked peoples’ mandate. The Constituent Assembly that is required to be set to repeal and replace the existing constitution with the new one was never established. It is the Constituent Assembly that represents the people of Tanzania in constitution making, but like other constitutions the same was not there. It is right to argue that people were not represented in the making of the 1965 Constitution, but rather the Constitution was imposed to them. The constitution was more of political interests other than peoples’ will. This was evidenced by the speech of Mwalimu Nyerere when addressing the Commission he set that was mandated to collect peoples’ view on the type of one party-state that Tanzania should have, he said, “In order to avoid misunderstanding, I think I should emphasize that it is not the task of the Commission to consider whether Tanganyika should be a one-party State. The decision has already been taken. Their task is to say what kind of one-party State we should have in the context of our own national ethic and in accordance with the principles I have instructed the Commission to observe”33. Professor Shivji states in
Towards a New Constitution Order:
“The making of the 1965, Constitution again, is another example of lack of constitutionalism and participation of the people. This time around the Constitution was not even adopted by the constituent assembly, not even one in its reincarnation of the pre-existing national assembly. Instead, the 1965 constitution was enacted as an ordinary Act of Parliament presumably in the constituent capacity of the Parliament. This is equivalent of saying that an amendment of the constitution repealed the constitution and established a new constitution in its place.”
The Interim Constitution survived for 12 years until 1977 the time it was repealed and replaced by the 1977 Constitution which is considered to be the permanent constitution of Tanzania. During its life the Interim Constitution passed through three types of amendments. Shivji writes, one type was that which increased the number of union matters. Another type was to increase the powers of the President on the one hand, and establish the supremacy of the ruling party, on the other. The third type was to make the party and party organs supreme over the National Assembly while at the same time reduce the proportion of directly elected members in the National Assembly by bringing in nominated members.34 With the 1965 Constitution, it was the time of “Party Supremacy”. Having established a one-party rule, the next point on the agenda of the party was to strive for the supremacy of this party. That is, to make the party the highest authority in the decision making in the country. In one-party democracy the party became supreme, the then Vice-President Rashid Mfaume Kawawa, once said that” TANU and ASP are the originators of this Sate. The two parties are policy makers while the duty of the government is to implement the policies. We have assisted the government with parliament, law and finance to facilitate such implementation… We are governed mentally by our colonial past in believing that the government is supreme. The German and British impact is still with us. We need to bring about our mental revolution to remedy this situation… In one-party democracy the party is supreme all the way.”36”The Party is supreme all the way” and it was vivid where by the constitution of TANU was entrenched in the Constitution via Article 3(4) as a schedule to the constitution and the courts of law justified this unexplainable action by the TANU officials (See the cases of Thabit
Ngaka V The Regional Fisheries Officer (1973) LRT No.24 and Hatimali Adamji V East African Posts and Telecommunications Corporation (1973) LRT No. 6). Yet there were no reasons as to why the constitution of the ASP was never made part of the Interim Constitution of 1965. With one-party democracy it was believed that the foundations of democracy would be firmer than in multi-party democracy. The President of TANU when addressing TANU Conference in 1963 expressed this idea, he said:
“Where there is one party, and that is identified with the nation as a whole, the foundations of democracy are firmer than can ever be where you have two or more parties, each representing only a section of the community”.
However, Mwalimu completely changed this ideology by engineering and insisted for the ruling party to accept the move for the need of multi-party democracy in Tanzania in 1990s’.
The Constitution of the United Republic of Tanzania, 1977
The Interim Constitution of 1965 declared under Article 3 that, “Thereshall be one political party in Tanzania” and “until the union of Tanganyika African National Union with the Afro-Shirazi Party the Party shall be, in and for Tanganyika, be the Tanganyika African National Union and, in and for Zanzibar be the Afro-Shirazi Party.”
The provision of Article 3 above had a word of promise to the people of Tanganyika and Zanzibar that their leaders are determined towards uniting their two political parties into one. This union was finally achieved on 5th February 1977. TANU and ASP united together and Chama Cha Mapinduzi was born. The union of two parties had a great impact on the history of constitution making in Tanzania. There arose a need to adopt a constitution that would reflect the one country TANZANIA and the need to have a permanent constitution for the United Republic of Tanzania. Acting under the powers vested to him via the Articles and Acts of Union the President through Government Notice published on 25th March 1977 appointed the Constitutional Commission that had a task to make a proposal for new constitution before the Constituent Assembly. Actually, the members of the National Executive Committee of the Party, who made the Constitution of Chama Cha Mapinduzi (CCM), composed the Constitutional Commission. Again under the powers vested to him by the Articles and Acts of Union the President through Government Notice of 16th March 1977 that was published on 25th March 1977 appointed the Constituent Assembly that had one task to enact a new constitution basing on the proposal presented to it by the Constitutional Commission. Finally, after the discussions in the Constituent Assembly a new constitution for United Republic of Tanzania was adopted. The new constitution was called The Constitution of the United Republic of Tanzania, 1977. The Interim constitution survived for twelve good years, and this long survival invites the questions as “to how long interim is interim”? For a long period of about 12 years Tanganyikans and Zanzibaris were governed by the interim constitution though in reality it suggests those twelve years were more than interim. Opining on the 1977 Constitution Professors Shivji, Fimbo and Dr. Mvungi say:
“Thus was born the permanent constitution of Tanzania. There was no public consultation or debate, the provisions of the Articles of Union were at best only technically complied with-its spirit and necessary intention were mutilated. The discussion in the Party was behind closed doors in the National Executive Committee. In any case the National Executive Committee of the party was not supposed to be the forum to consider the constitutional proposals”.
The Constitution of the United Republic of Tanzania, 1977 came into effect on 26th April 1977, to date the Constitution has passed through fourteen amendments, all these amendments will be discussed accordingly in coming discussions in another posts, there will be also the discussion on the structure of the constitution as summarized hereunder.
The Constitution of the United Republic of Tanzania is divided into ten chapters that are preceded by the Preamble to the Constitution. These ten chapters provide for the structure of the Constitution. Part one of chapter one declares Tanzania to be one State that is Sovereign United Republic and declares its territory. It also provides for political parties, the people and he policy of Socialism and Self-reliance. Part two states the fundamental objectives and directive principles of State policy while part three recognizes basic rights and states the duties of citizens.
Chapter two which establishes the Executive of Tanzania is divided in three parts. Part one is on the President, part two establishes the office of the Vice- President while the office of the Prime Minister, the Cabinet and the government are covered under the last part, that is, part three.
Chapter three establishes the Legislature of the United Republic of Tanzania. The Legislature is covered in three parts as well which are; The Parliament in part one, part two is on Members, Constituencies and election of Members. The procedure, powers and privileges of Parliament are enshrined in part three of this chapter.
Chapter four which is also in three parts covers the Revolutionary Government of Zanzibar, the Zanzibar Revolutionary Council and the House of Representatives of Zanzibar.
Chapter five dwells on the High Court of the United Republic of Tanzania, the Judicial Service Commission for Mainland Tanzania, the High Court of Zanzibar, the Court of Appeal of the United Republic and the special Constitutional Court of the United Republic. Chapter five is divided into six parts.
Chapter six establishes the Commission for Human Rights and Good Governance and the Public Leaders Ethics Secretariat, these are detailed in two parts.
Provisions regarding the finances of the United Republic are provided for and established under chapter seven.
Chapter eight is on the Local Government Authorities, while chapter nine provides for Armed Forces.
Chapter ten is the Miscellaneous Provisions chapter.
The Structure of the Union Constitution.
As it has been stated in the summary of the structure of the Constitution of the United Republic of Tanzania, that the Constitution is divided into ten chapters that provide for various provisions that deal with the structure and other main features like the fundamental Objectives, Directive Principles of the State policy and the Basic Rights and Duties. In this post the thorough discussion of all chapter is made so as to help the reader understand the Constitution both in the structure and main features that it provides and deal with.
CHAPTER ONE
This chapter proclaims Tanzania to be one State that is a sovereign United Republic. Article 2(1) states the territory of the United Republic, which consists the whole of the area of Mainland Tanzania and the whole of the area of Tanzania Zanzibar that also includes the territorial waters. Declaration of Multi party State is made via Article 3(1) “The United Republic is a democratic and socialist state which adheres to multi-party
democracy”. The democratic principle of separation of powers is entrenched in the Constitution under Article 4. The Article vests executive powers in two organs that is, the Government of the United Republic and the Revolutionary Government of Tanzania Zanzibar, Judicial powers are vested with the Judiciary of the United Republic and the Judiciary of Tanzania Zanzibar while the Legislative and supervisory powers over public affairs are vested with the Parliament of the United Republic and the House of Representatives of Zanzibar. The right, to vote, for every citizen of the United republic who has attained eighteen years of age is recognized in this chapter through Article 5(1), but the enjoyment of this right is subject to the provisions of subarticle (2) that empowers the Parliament to enact a law that imposes conditions which restrict a citizen from exercising the right to vote by reason of being a citizen of another state, being mentally infirm, being convicted of certain specified criminal offences, omission or failure to prove or to produce evidence as to age, citizenship or registration as a voter. Apart from these conditions every citizen of Tanzania who is eighteen years of age is eligible to vote in any public election held in Tanzania.
Fundamental Objectives and Directive Principles of State Policy
Part two that deals with the Fundamental Objectives and Directive Principles of State policy puts responsibility to the Government of the United Republic and the Government of Zanzibar, Local Authorities and any person who exercises power or authority on behalf of either Government to take cognizance of, observe and apply the provisions that are made therein (part two). Subarticle (2) of Article 7 declares that provisions on fundamental Objectives and Directive Principles of State policy are not enforceable by the courts of law. The Constitution denies courts of law to entertain any matter with regard to the provisions of part two. The courts are declared to lack jurisdiction and to be incompetent to determine the question whether or not any action or omission by any person or any court or any law or judgment complies with the provisions of part two of chapter one. Article 8(1) of the Constitution covers Fundamental Objectives and Directive Principles of State Policy. The Article shows the relationship between the Government and the people. Among the Directive Principles that are stated in Article 8(1) includes Sovereignty of the people by declaring that sovereignty resides in the people and it is from the people that the Government through the Constitution shall derive its power and authority. It is therefore a constitutional directive that the sovereignty resides with the people and through that the Government has to derive its power and authority from the people through the Constitution. The power and authority of Government if derived outside the Constitution then they are not of the people hence unconstitutional with no blessings of the people at all. The same provision declares the Supremacy of the Constitution by directing that it is through the constitution on behalf of the people the government shall derive its power and authority from. The Government is, under Article 9, directed to ensure respect of human dignity and human rights, upholding the laws of the land and ensure that they are enforced accordingly (emphasis is mine). The State is also directed to ensure non-exploitation of one person by another. Another directive covered is equality between men and women in all opportunities available for them without regard to their colour, tribe, religion or station in life. Accountability of Government to the people is another directive principle stated in the constitution under Article 8. The State must also put in place policies that guarantee the rule of law and democratic participation of the people in decision-making. Observance to the principle of Separation of powers should be guaranteed as well. Discrimination and all forms of injustice intimidation, corruption, oppression or favouritism are to be eradicated in the country. The State and its organs should ensure that such practices that are mentioned in paragraph (h) of Article 9 do not find room in the country.
The Fundamental Objectives include the welfare of the people. It is stated in Article 8(1) (b) that the primary objective of the Government shall be the welfare of the people. The State should make sure that public affairs are conducted in such a way as to ensure that the national resources and heritage are harnessed, preserved and applied for the common good of all people (emphasis is mine). Resources and wealth of the country are to be utilized for the betterment of the people. It is the fundamental objective that national economy is planned and promoted in a balanced and integrated manner and that the economic activities are not conducted in a manner capable of resulting in the concentration of wealth or the major means of production in the hands of a few individuals. With this objective the State is to ensure that the running of a country in terms of policies and economic activities are not handled by few individuals and results in making these few individuals rich leaving the majority of the people in extreme poverty situation. The objective is to avoid the nation that is in stratification by having classes of havesand have not. Policies and programmes of the State should address positively and in a tangible manner the use of national resources by placing the emphasis on the development of the people and in particular is geared towards the eradication of poverty, ignorance and disease. The three phenomena were declared and are still taken to be the biggest enemies of the country towards economic development. The State is to make appropriate provisions for the realization of a person’s right to work, to self education and social welfare at times of old age, sickness or disability and in other cases of incapacity, also the to make provisions that ensure every person earn livelihood without prejudice to the rights specified in Article 11.
Basic Rights and Duties
In Tanzania since Independence fundamental freedoms were recognized in the Preamble to the constitutions that existed before the 1977 Constitution through the fifth amendments in 1984. For the whole of that period it was difficult to enforce the violation oh human rights since they were not law basing on the fact that preamble to the constitution is not part of the constitution. This was evidenced in the case of Hatimali Adamji V East African Posts and Telecommunications Corporation38 where by the court held that, the preamble to a constitution does not in law constitute part ofnthe constitution and so does not form part of the law of the land. In this case the complainant who was of Asian origin was challenging the retirement notice issued to him during the process of Africanizing the Corporation to which he was working with. He challenged the retirement that was violating right to non-discrimination recognized by the Constitution. The right to non-discrimination was recognized in the preamble.
However, following the pressure from the people and various rights groups bill of rights was passed in the year 1984 and introduced in the Constitution of the United Republic for the first time.
Right to life
The Constitution recognizes the right to life through Article 14 by providing that “Every person has the right to live and to the protection of his life by the society in accordance with law” With the right to life it is to be understood that this is the most important right among the recognized rights, all other rights follow when life is guaranteed, with no life other rights cease. Right to life is the custodian of all other rights. Right to life if not guaranteed other rights are meaningless. Therefore, no one is entitled to take away the life of another, but rather the Article recognizes protection of one’s life from the society in he/she leaves in accordance with law. Writing on right to life Prof. Chris Peter39 states that, the right to life
is the most important of all human rights. There is no doubt that if there were no right to life, there would be no point in having any other human right. This right can therefore legitimately be referred to as the mother of all other rights. Article 14 that recognizes right to life was interpreted in
the case of Republic V Mbushuu and another where by Justice Mwalusanya held that,” the death penalty is a cruel, inhuman and degrading punishment; and that it offends the right to dignity in the course of executing the sentence; the death penalty infringes the right to life; the death penalty is not in public interest; thus it is unconstitutional and hence null and void; in the place of death the punishment of life imprisonment can serve the purpose” . However on appeal the Court of Appeal hesitated to decide that the death penalty is unconstitutional. Court of Appeal held that death penalty is for public interest. With the decision of court of Appeal the death penalty is still enforced in Tanzania as punishment to those who are found guilty of murder. The highest judicial body in Tanzania missed in, its history, an opportunity to discourage the applicability of brutal penalty of death. By having death penalty death is justified, and right to life is taken away, perhaps we have the penalty due to the thoughts of the people that whoever kills and found guilty of murder must also die. This holds no water basing on the fact that among the aim of punishments is deterrence. Deterrence character of a punishment should deter potential offenders on one hand from committing crimes and the guilty person on the other from committing offences again. Basing on this argument death penalty does not deter the guilty person. Again the function of punishment to reform the
guilty person does not exist as long as the guilty person will be killed and therefore lack an opportunity to learn the bad of his action. By death penalty the guilty person is not reformed. The challenge today, as far as death penalty is concerned, lies with individuals, rights groups and to a large extent the Commission for Human Rights in Tanzania to look for and advise the government on an appropriate alternative punishment for people found guilty of murder. The most appropriate and best penalty for murderers could be life imprisonment. (See Human Rights in Tanzania by Prof. Peter and Justice and Rule of Law in Tanzania by Prof. Peter and Helen Kijo-Bisimba for more discussion on death penalty)
Right to equality
“All human beings are born free, and are all equal”. “ Every person is entitled to recognition and respect for his dignity”.
The words of Article 12 guarantee equality of human beings basing on the fact that human rights are derived directly or indirectly from the very nature of man. By this fact it may be argued that by virtue of being human, one inheres all those attributes, which are inherent in human personality, and natural rights being one among those attributes are inherited naturally. Being a human being is the only condition necessary for enjoying natural basic rights, and this condition lays down the equalitarian principle. Carlos Santiago Nino argues that, “if the only relevant condition for enjoying certain rights is being human, and if this property does not admit of degrees, there cannot be differences of degree in the extent to which the rights in question are held; this is, all human beings have them to the same degree”
Equality before the law
Equality before the law is recognized under Article 13 of the Constitution. Equality before the law calls for equal treatment and protection of all persons before the law without discrimination. Equality before the law demands for the protection of civic rights, duties and interests of every person by the courts of law or other state agencies established by or under the law. Prof. Peter and Helen write, “ Equality before the law means all classes of people in a civil society should be treated alike by the law itself and before all law enforcement bodies and agencies which are created by the law… Equality before the law has also been taken to be a rule requiring all functions of the State which are likely to affect the basic rights of the people to be subjected equally before the law”.
The Constitution of the United Republic of Tanzania, 1977 through Article 13 that recognizes equality before the law, prohibits any form of The same Article defines discrimination to mean, “to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, colour, religion or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications”. These words denote that there is discrimination whenever persons’ rights or other requirements are satisfied and recognized on the basis of colour, tribe, political opinion, place of origin, religion or station in life, gender etc. that is to say it is racial discrimination if one is regarded weak or inferior simply because he/she is black. All the same it is discrimination if a person is regarded valueless on the basis of belonging to a particular, probably, a small tribe in the country, being a member of a certain, presumably, an opposition political party, being of weak financial position, by being physically challenged or even by being of a certain gender, e.g. by being a female person. In Tanzania gender discrimination has been for a long time the most notable form of discrimination. Prof. Peter46 says, “this state of affairs is not new. It is old and has a long history and historical and social-economic basis”. According to Eze, the inequalities and marginalisation of women in various societies, and particularly in Africa, is reinforced by two variables. These are the capitalist socio-economic organization; and the various customs which have been further reinforced by colonial and religious influences.47 Taking note from the thought of Eze it is obvious that the Capitalist socio-economic system and the customs especially customary law for decades have left women victims of the unjustified gap between men and women. The colonial governments for example, prohibited, in many colonies the recruitment of women in productive sectors and in most instances the colonial masters required local leaders to make sure that women in colonies did not leave their households for their husbands in places where they were being recruited to work. Women are marginalized by the said variables inmthe political, social and economic spheres. Patricia McFadden48 writes,
“Where the state existed as a viable and fully developed entity prior to colonization, most women were excluded from political engagement because they were not considered citizens or even adults within such communities. While women of the ruling classes engaged in some limited political agency vis a vis the state and the arena of public life, the majority of African women were systematically excluded from both political and civic engagement. The colonial state continued and or formalized this particular exclusionary practice by consciously colluding with black men of all classes in the continued exclusion and marginalisation of African women from the arenas of public engagement, particularly in relation to issues of rights and mobility. The history of the continent is replete with evidence of this collusion, the most blatant and intractable being the legitimization of essentially patriarchal feudal privilege for men into formalized ‘laws’-the so-called customary law so well loved by both anthropologists and militant black nationalist. In the purview of the colonial administrator, black women existed only as chattels of men- both white and black-and a direct relationship with the state, let alone one instruments of governance and entitlement such as constitutions, could not even be imagined…” The two phenomena have all the same guaranteed no opportunity for women to own major means of production such as land, which is the potential source of income and living in many African Countries including Tanzania. Women have always been looked down and in many communities through customary laws they are valueless only regarded as properties of men. However, the Judiciary in Tanzania deserves a credit for standing bold in upholding the womens’ rights even before the inclusion of the bill of rights in the Constitution. (See the cases of Ndewawiosia Ndeamtzo (1968) H.C.D no. 127,Peter Byabato Vs Pastory Rugaimukamu (unreported see it in Prof. Peter’s book) Holaria Pastory etc) These cases mark a revolution against gender discrimination and marginalisation in Tanzania. However, though the court decisions in these cases reveal the clear blue sky and the shining stars towards recognition of women rights, yet one should not look at the clear blue sky and think that all is well, all is not well, all is not well and there is a long way to go. There is a high demand to make the members of the communities aware that women rights are human rights, and that the fight and struggle for women rights is not the fight against men but rather the fight against the system, male dominated system that for centuries have been built by the capitalist socio-economic organization and our customs like how Eze puts it. The promising thing is, Tanzania with the bill of rights in the Constitution practices a bottom-up approach whereby women rights as one among the best values of society are reflected in the Constitution, this is to be used as the starting and point of reference in the struggle for respect and protection of women rights. The big challenge is to make the rights that are recognized in the Constitution a reality in women’s lives. It is not enough to say that the Constitution recognizes women rights; rather the existence and recognition of these rights need to be tested in the real and everyday life of women themselves. The rights need to be brought to the real life of women from the Constitution. However, there are some areas where the tangible changes are a little bit experienced by the people. These areas include access to key decision making bodies such as Parliament, Cabinet and Government. In the Parliament for example, following Article 66-(1) (b) that provides for among members of Parliament women members, whose number should not be less than 30 percent of the members mentioned in Article 66 (a) (c) (d) and (f) who have the qualities specified in Article 67, there are now …women members. Women members are to be elected by their political parties in accordance with the requirements of Article 78. The Judiciary especially the High Court and the Court of Appeal whereby judges are Presidential appointees the number of female judges has reached…in this year.
Right to personal freedom
Article 15 of the Constitution on the right to personal freedom provides that no person shall be arrested, imprisoned, confined, detained, deported or otherwise be deprived of his freedom save only under circumstances and in procedures prescribed by law or in the execution of a judgment, order or a sentence given or passed by the court following a decision in a legal proceeding or in a conviction for a criminal offence. The Article provides for protection against arbitrary arrest, imprisonment, confinement, detention and deportation except where any of the said acts is done by basing on circumstances and procedures prescribed by law. Article 15 implies two things firstly; a person can be deprived of liberty only in accordance with the circumstances and procedures prescribed by law. For the procedure as required in Article 15 to hold water and satisfy the requirement of the Article needs to be fair, just and reasonable. The procedure should not be arbitrary, oppressive or fanciful (far-fetched/imaginary), if so then it will be useless to have the protection guaranteed in Article 15. In order for the procedure to be just, fair and reasonable it has to conform to the rules of natural justice that base on fairness and justice; these include (i) the rule against bias, (ii) right to be heard and (iii) right to know reasons for the decision.
(i) The Rule Against Bias: no man is to be a judge in his own cause
The rule against bias, which is expressed in the maxim nemo judex in causa sua, requires a man not to be a judge in his own cause but rather to be an impartial judge when deciding the matter before him. The essence of a fair judicial decision is that it shall have been made by an impartial judge.49The circumstances that may lead to the rule against bias were stated in the case of R v Rand first, where the judge has any direct pecuniary interest, however small, in the subject matter of inquiry. However, there is an exception to this rule and the exception is a judge can not be disqualified from acting and deciding the case if the parties are made fully aware of his interest in the proceedings and clearly waive their right to object to his participation, or a special statutory dispensation empowers the judge to preside over the mater, or a judge has to sit as a matter of necessity where other judges (rarely) are affected by disqualifying interest Secondly, where, apart from direct pecuniary interest, there is likelihood that the judge would have a bias in favour of one of the parties. According to Prof. Peter what is vital and central in this situation is that the judge should not hear evidence of one side behind the back of the other. The risk of not obeying to the rule was well elaborated by Lord Denning, M.R (as he then was) in the case of Kanda v. Government of the Federation of Malaya “noone who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing”.
(ii) The right to be heard: no man to be condemned unheard
The right to be heard as expressed in the maxim audi alteram partem (hear the other party) requires that no one shall be condemned unheard. It was stated in the case of Kanda v Malaya52 that when a person has a right to a hearing he must know what evidence has been given and what statements made against him and he must be given a fair opportunity to correct or contradict them. From this case two elements are deduced. First, the person has the right to know the case against him. Secondly, the person is legally entitled to cross-examine his accusers so as to correct or contradict the statements made against him/her. These elements were stated in the case of Hypolito Cassiano De Souza v. Chairman and Members of the Tanga Town Council that:
- A fair opportunity must be given to those who are parties to the controversy to contradict any statement they may desire to bring forward and The tribunal should see that a matter which has come into existence for the purposes of proceedings is made available to both sides and, once the proceedings have started, if the tribunal receives a communication for one party or from a third party, it should give the other party any opportunity of commenting on it.
Therefore, the right to be heard dwells on the fact that each party must have the chance to present his version of the facts and to make his submissions on the relevant rules of law. Article 13 (6) (a) of the Constitution recognizes this right where it provides inter alia that:
“When the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned.”
(iii) The Right to Know Reasons for the Decision
Today natural justice demands more than rule against bias and right to be heard. Natural justice requires for the person whose rights are determined by any judicial organ or tribunal to be given reasons for the decision reached by that tribunal. This requirement stands as a duty to any decision-making organ that determines the right(s) of a person. The right to know reasons is expressed in the maxim nullum arbtrium sine rationibus. According to Flick as reproduced in the book by Prof. Peter “Reasons are a valuable check on both the exercise of formal and informal decision-making. They provide the means whereby a party is appraised of why a decision has been made and they provide some guidance to those who have to advise the public as to the attitudes of the administration”.
Right to privacy and personal security.
This right is provided for under Article 16 of the Constitution. The essence of right to privacy and personal security is to guarantee an individual respect and protection of his/her person, privacy of one’s person and his/her family and matrimonial life. This right extends to the protection of one’s residence and private communication. The spirit of Article 16 revolves around respect and protection of one’s dignity, the dignity of his/her family and his/her matrimonial life. It is all about ensuring that the person of every person is not abused in any way. The family and matrimonial life of every person is not interfered with without good reasons accepted by the law serve as provided for under sub-article (2) of Article 16, where by the state authority is allowed to lay down legal procedures that provide for the manner and extent to which the right to privacy and personal security may be encroached upon without prejudice to the provisions of Article 16(1). Knowing the importance of the right to privacy Article 16(2) uses the word “shall” to show that whenever the need to interfere with the person of any person, family or matrimonial life it is mandatory to have in place well established legal procedures which reveal circumstances, manner and extent to which this right may be denied to a person.
Right to freedom of movement
Under Article 17(1) every citizen of Tanzania is guaranteed the right to freedom of movement within the borders of Tanzania and the right to live in any part of Tanzania, to leave and enter the country (Tanzania), and the right not to be forced to leave or be expelled from Tanzania. Article 17(1)
provides for four aspects:
Right to move freely from one place of the United Republic to another place of the same
Right to every citizen of the United Republic to settle, reside and establish himself/herself in any part within the borders of the United Republic
Right to leave and enter the country, and Right not to be expelled from Tanzania or taken out of the country by force.
Therefore, every citizen of the United Republic regardless of his/her race, colour or tribe is entitled to full enjoyment of the right to freedom of movement within the border of the State. However, this enjoyment is subject to lawful and reasonable restrictions as provided for under Article 17(2).
Freedom of expression
Article 18(1) guarantees to every person the right to freedom of opinion and expression also right to seek, receive and impart or disseminate information and ideas through any media regardless of national frontiers and also the right of freedom from interference with ones communications. Sub-article two recognizes the right of every citizen to be informed at all times of various events in the country and in the world at large which are of importance to the lives and activities of the people and also of issues of importance to society. Under Article 18(1) every person has the right to information. Every person can gather and transmit information by using any media without being interfered. Article 18(2) recognizes the right of every citizen to be informed and made aware at all times of all events that occur in and outside the country that are important to the lives of these citizens and the society. During modern times of globalization where the World has become very tiny freedom of expression becomes a very important right to be guaranteed. This is due to the fact that socio-economic development and progress of the people and nations depend on alert and sound information. Freedom of expression has been inevitable in a society that needs to progress and survive in today’s globalize world. However, this right is to be enjoyed without prejudice to expression the laws of the land.
Right to freedom of religion
Under the Charter of the United Nations all member States have pledged to promote universal respect for the observance of human rights and fundamental freedoms for all without discrimination as to religion.
Being the member of the United Nations Tanzania made, and follows this commitment as well. Since her Independence Tanganyika was declared to be a secular State that follows no religion, and that spirit has been the same even after union between Tanganyika and Zanzibar in 1964. The Preamble to the Constitution and Article 8 of the Constitution declare Tanzania as a State that believes in principles of Democracy, Socialism and Self-reliance. However, the people of Tanganyika (by then) and now Tanzania were left free to believe religion of their choice. This right to freedom of religion like other rights is a constitutional one. It is recognized through Article 19. Under sub-article (1) of Article 19 every person in the country has the right to the freedom of thought or conscience (sense of right and wrong, ethics), belief or faith, and choice in matters of religion, including the freedom to change his religion or faith. The right to freedom of religion includes freedom of thought or conscience. Every person is free to entertain and cherish his/her inner thoughts, moral consciousness or belief of his/her choice. In relation to freedom of religion the State shall not intervene in anyway the affairs and management of religious bodies, however this will depend on if the activities of the religious bodies do not prejudice relevant laws of the Country. It is stated in sub-article (2) that without prejudice to the relevant laws of the United Republic the profession of religion, worship and propagation of religion shall be free and a private affair of an individual and the affairs and management of religious bodies shall not be part of the activities of the state authority. Sub-article (3) describes the word “religion” to include religious denominations.
Right to freedom of association
Person’s freedom of association is recognized in Article 20. This right is entitled to every person, subject to the laws of the land. Every person is left to freely and peaceably assemble, associate and cooperate with other persons, express views publicly, and more specially to form or join associations or organisations formed for the purposes of preserving or furthering his beliefs or interests or any other interests. This right is very important as it recognizes the importance of people coming together in different associations be it religious, political or any non-governmental organisation. Through this right people, by basing on their interests, can assemble, associate and cooperate. Under the umbrella of freedom of association people can form political parties, religious organisations or any association of their choice and interests. These organisations especially, political parties and non-governmental organisations and others have proved to be good and necessary stakeholders of the government in bringing about democracy, and development to individuals and the State at large. Dr. Chandra writes that56 freedom of association implies that several individuals get together and form voluntarily an association with a common aim, legitimate purpose and having a community of interests… Associations, as a matter of fact, has become an indispensable ally in the struggle to preserve democracy against totalitarianism.
Right to participate in public affairs.
…Every citizen of the United Republic is entitled to take part in matters pertaining to the governance of the country, either directly or through representatives freely elected by the people… Every citizen has the right and the freedom to participate fully in the process leading to the decision on matters affecting him/her, his/her well-being or the nation. This right recognizes in fully participatory process in decision-making and matters that have impact on a citizen either directly or indirectly. Citizens are to be made aware and participate direct or indirect through representatives of their choice in matters pertaining to the governance of the country. This right invites and puts in place the spirit of democracy that involves people in decision-making process for various matters starting with individual or personal level to country level.
The right to work and the right to just remuneration
Every person has the right to work. Every citizen is entitled to equal opportunity and right on equal terms to hold any office or discharge any function under the state authority. The right to work consolidates to the dignity of a person as it is well appreciated that work or any lawful trade brings respect and dignity to a person. It is work or any lawful trade that enables a person to earn his/her income that will help him/her to do various things for development of himself/herself, family members, people in need and sometimes for the country. Right to work includes right to every citizen to equal opportunity and equal terms to hold any office or discharge any function in the country. This means that right to work is guaranteed to every citizen regardless of his/her gender, beliefs or tribe. As long as one is suitable for the specified work regarding the qualifications needed then he/she is to be considered for the job and recruited or given the opportunity to discharge the said work. Mwalusanya. J, (as he then was) had this to say regarding right to work, in the case of Augustine Masatu v. Mwanza Textiles Ltd
For this right to exist [right to work] in a real sense, it is necessary that economic, political and legal order of the society assure everybody who is capable of working of the possibility of participating in building his society through work in accordance with his capacity and education and the right to earn an income proportional to the quantum of his work. And so job-security is the hall-mark of the whole system.
From the words of Mwalusanya, J (as he then was) a value was added to the right to work that brings the real meaning of the right to work. This value is nothing else than the call for job-security, which is to be assured by economic, political and legal system of the country. Noting on the right to work Prof. Peter60 had this to say:
The Constitution of the United Republic of Tanzania provides for the right to work in Article 22. This is one of the rare provisions of the Constitution which is not accompanied by a claw-back clause. It is therefore an absolute right. It goes hand in hand with the right of every citizen to be afforded equal opportunity and with equal conditions to occupy any position in the service of the United Republic. However, to the workers and the working class in Tanzania, the right to work does not commence and end with this salutary gesture of declaring the right in the Constitution. For them, it must mean more than that-the right should of necessity empower them to control their own destiny and give them a proper edge in their confrontation with their employers. Therefore, to them it is one of the tools in their struggle for a better life. The right to work is a product of many years of concerted struggle against capital and exploitation of labour n general. It means, among other things, the right to demand for better and fair wages, the right to withhold labour by use of strikes and other means etc…
Every person, without discrimination of any kind, is entitled to remuneration commensurate with his work, and all persons working according to their ability shall be remunerated according to the measure and nature of the work done. Every person who works is entitled to just remuneration.
This section is to the effect that every person who works regardless of gender, tribe, race, colour, whether he/she is physically fit or physically challenged any condition whatsoever, is entitled to be remunerated by basing on the measure of the work done. Sub-article (2) brings into attention the right of just remuneration to every person who works.
The right to own property
The right to own property is guaranteed by the Constitution under Article 24. The provisions of Article 24 declare that every person is entitled to own property and has a right to the protector of his property held in accordance with law. However, right to property should be enjoyed subject to the provisions of the relevant laws of the land, that is to say the enjoyment of this right depends on the condition that one does not violates the relevant laws of the country. In other words the right to own property is not an absolute one. In guaranteeing the full and meaningful enjoyment of the right to own property sub-article (2) declares that it shall be unlawful for any person to be deprived of property for the purposes of on nationalisation or any other purposes without the authority of law which makes provision for fair and adequate compensation. Sub-article (2) is a mandatory provision that unlawfully any taking of any person’s property on nationalisation policies or for any other purposes without the authority of the law that provides for fair and adequate compensation. In other words before a person is deprived of his/her property there must be the law that authorizes the taking of the property by providing fair and adequate compensation, here compensation which is fair and sufficient is very important.
The history of the right to own property is well provided for by Prof. Peter.
Duties to the society
Behind every right there is a duty. Though the Constitution recognises the rights of the people, it also invokes duties that citizens and the people in general should observe, and these are duties to the society. The duties once observed make the enjoyment of the rights by everyone a reality, but once one disregards the duties he/she violates the rights of others or society in one way or another, for example right to work goes perpendicular with the duty to participate in work. Article 25 creates a duty to every person to participate voluntarily and honestly in lawful and productive work and observe work discipline and strive to attain the individual and group production targets desired or set by law. Article 26 stands for the duty to every person to observe and abide by the Constitution and the laws of the United Republic.
Students are advised to read Articles 25-29 respectively as far as duties are concerned.
CHAPTER TWO
Chapter two concerns the Executive of the United Republic and it is divided in three parts. Part one concerns the President, part two is on vice-president and the last part, part three provides for Prime Minister, Cabinet and the Government. Briefly, the discussion on each part is made hereunder.
Part One
The President
The office of he President of the United Republic is provided for in Article 33(1) “There shall be a President of the United Republic”.
The President of the United Republic shall also be the Head of the State, the Head of Government and the Commander-in-Chief of the Armed Forces. The President is elected by the people in accordance with the requirement of the Constitution and the laws enacted by the Parliament pursuant to the provisions of the Constitution.
