"Fiat Justitia Ruat Caelum"

GUIDELINE ON THE STUDY OF CONSTITUTION, AND CONSTITUTIONAL LAW


By Jaba Shadrack, School of Law (Formerly Faculty of law)

(For Certificate in Law Class – UDSM, 2009/2010)

INTRODUCTION

A Constitution is referred to as a grund norm. It is the fundamental/supreme/mother law of the land from which acts of the governance, both legislative and administrative derive their legitimacy. It sets out the framework of the government, postulates how it ought to operate, and makes declarations about the purposes of the state and society. Most importantly, a constitution recognises and guarantees the rights and freedom of individuals. In essence, a constitution is about political authority and power i.e. the location, conferment, distribution, exercise and limitation of authority and power among the organs of the state. It may be written or unwritten, and it may be found in one or more documents.

Basic Outline
(a) The rationale of having a constitution
(b) Functions of a modern constitution
(c) The Basic contents of a constitution
(d) Essentials/Features of a good constitution

(e) Classification of a Constitution

Classification according to the form it appears:

(i) Written (ii) Unwritten

Classification according to the mode of amendment:

(i) Flexible (ii) Rigid

Classification according to the form of the government:

(1) Federal constitution
(2) Unitary constitution
(3) Republic constitution
(4) Democratic state constitution
(5) Dictatorial (undemocratic) constitution
(6) Aristocratic (monarchy) constitution, and etc.

Classification according to the political system of the state:

(i) Monoparty (Socialistic) Constitution
(ii) Multiparty (Liberal) Constitution

NB: The accepted classification is written/unwritten and/ flexible/rigid constitution. Elucidate the merits and demerits of the said types of constitution.

CONSTITUTIONAL PRINCIPLES

Referred to as the cardinal/notable/basic rules, tenet or aspects of the constitution

1. Separation of Power (SOP)

Refers: -

(a) Article: 4, 34, 62(1), 63(2), 107A(1) of the United Republic of Tanzania Constitution (URT), 1977
(b) Montesquieu conception:-  (strict/classical SOP)
(c) Functional SOP, Institutional SOP, and Separation of personnel
(d) Modern/Contemporary approach of SOP: - "Checks and Balance".

Cases
Per Samatta JK in Mwl. Paul Mhozya v. Att. Gen. [1996] TLR 130
Att. Gen. v. Lohay Akonay and Joseph Lohay [1995]TLR 80 (CA)
Per Lord Scarman in Duport Steels Ltd v. Sirs [1980]1ALL ER 529 at 551
Per Lord Mustill in R. v. Secretary of State ex parte Fire Brigades Union [1995]2 ALL ER 244 at 267

2. Parliamentary Supremacy/ Sovereignty
Per Prof. Dicey that the PMT has the right to make or unmake any law whatever, and further that no person/body is recognised by the law as having a right to override or set aside the Act of the PMT.

Refer: Article; 62, 63(3)(d) and 64(1)(2), URT Constitution.

The three (3) facet of Parliamentary Supremacy:-

(a) Freedom to make/unmake any kind of law
(b) The Act of the PMT cannot be overridden
(c) The predecessor PMT cannot bind its successors

Critique of PMT sovereignty/supremacy in relation to written constitution:

(i) Emergence of international conventions and PMT e.g. EU, AU, EAC- Parliaments
(ii) Supremacy clause, e.g. Art. 64(5) of the URT- const., 1977.
(iii) 'Redefinition theory', e.g. Art. 98(1)(2) of the URT const., 1977.
(iv) The common law concept of 'Dual Sovereignty'
(v) Power of the president to dissolve the PMT.
(vi) In practice the PMT is subservient to the executive.

Quiz: Does subsidiary legislation violate sovereignty of the PMT in legislating?

Case: Pickin v. British Railways Board [1974] AC, 765

3. The Rule of Law/Supremacy of the Law

"The exercise of power in accordance with rules, and not personal whims or desires"

Article: 26(1)(2) of the URT Const., 1977

Maxim: Rex/Regina non potest peccare

Albert V. Dicey's Version of the R/Law

(a) No one can be punished, unless he/she is clear breach of the law

E.g. criminal law maxims

Nullum crimen sine lege
Nulla poena sine lege

Refer, Article; 13(6)(b), 15(2)(a)(b) URT Const., 1977., Zombe's case

(b) No interference of individual rights without backing of the law

(c) No wide discretionary power

(d) Equality before the law, Article 13(1) of URT Const., 1977

(e) No one is above the law

Read; Government (Proceedings) Act, 1967 [RE: 2002]

Quiz: what about the immunity of the President under Article 46(1), and Judicial privilege under the Penal Code?

(f) Disputes to be settled in ordinary courts and not in quasi-judicial bodies (tribunals)

The current/contemporary conception of Rule law:

Law should be fair and just, and that law must conform to basic human rights. (Prof. Lon Fuller, and International Jurists Conferences).

Cases:
Per Lord Hope in Brown v. Scott [2001]2ALL ER 97, at 128
Per Laws J in R. v. Somerset CC exparte Fewings [1995]1 ALL ER 513, at 524
Per Samatta JK in Mwl. Paul Mhozya v. Att. Gen. [1996] TLR 130, at 133 – 4 (HC)
Shaaban Khamis Mloo v The Superintendent of Zanzibar Prisons and another [1991] TLR 21 (HC)
Rev. Christopher Mtikila v. The Editor, Business Times & Augustine Lyatonga Mrema [1993] TLR 60 (HC)

Quiz: what is your reasoned opinion on the Apartheid laws (S. Africa), Nazi laws (Germany) and Negro laws (USA) in relation to the doctrine of Rule of law?

4. Independence of the Judiciary
Means that, every Judge or magistrate is free to decide matters brought before him in accordance with his assessment of the facts and his understanding of the law without any improper influence, inducements or pressure from any person or body.

Refer: Article 107A(2)(a)-(e), 107B of URT Const., 1977.

Elements (prerequisites) of the Principle of Independence of the Judiciary

(i) There must be clause in the constitution that provides for:-

(a) Security of tenure {Article 110A (2)(3)(4)(5), and 120A(2) URT Constitution}
(b) Emoluments (Remuneration) {Article 142(1)(5) URT Constitution}
(c) Independence of judges {Article 107B, 113A of URT Constitution}

(ii) The state should surrender adjudicative power to the Judiciary, constitutionally.

(iii) Non-partisanship between the state and the judiciary in adjudication.

(iv)  Freedom of the bar to be guaranteed.

Factors undermining Independence of the Judiciary

Corruption, protection of incompetent personnel, Marginalisation of Court officials (poor salary), Harassments of Court officials, Refusal of the Govt to enforce Courts orders, side-stepping courts' jurisdiction by Acts of PMT (ouster or finality clauses).

Cases
Ally Juuyawatu v. Loserian Mollel
Republic v. Iddi Mtegule.
James Bita v. Iddi Kambi
Sheikh Muhammad Nassor Abdulla v. The RPC Dar es Salaam and 2 Others
Lesinoi Ndeinai and Another v. Regional Prisons Officer and Another
Mtenga v. University of Dar es Salaam
Anisminic Ltd. v. Foreign Compensation Commission and Another

5. The Principle of Sovereignty of the People/Popular sovereignty
Maxim: Vox populi vox dei

Refer: 

* The Preamble (introduction), Art. 8(1)(a)-(d), 5(1), and 63(2) of URT constitution, Zanzibar Constitution,1984, Art. 9(1)(2)(a)

* Peoples power, Revolution, universal suffrage, enfranchisement, demonstrations and etc.

6. Supremacy of the constitution/ Supremacy clause

Article: 64(5) URT Constitution, VI(2) US-Constitution, and 4 of Zanzibar Constitution.

Cases
Daudi Pete v. R
Chumchua marwa's case
Ndyanabo v. Att. Gen

7. Representative Parliament

Refer: Part III of the URT Const., 1977

8. Respect for Human Rights

R. v. Mbushuu and another (H.C)

Article: 12-24 (Human Rights), 25-28 (obligations/duty) of URT Constitution, and UDHR, 1948

JURIST - Paper Chase

Blog Archive

Followers