Constitutional Law-1

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CONSTITUTIONAL LAW I
STUDENT COMPANION
Constitutional law is among of courses which are offered in various Universities for
undergraduate students who study law, for this university the course is taught in first year.
Since BALE and LL.B both are under Udsm school of law, they are required to study this
course.
The course enables students to understand the history of Constitution and its implication
by looking to various theories which is connected with the course so as to get a wide
knowledge on Constitutional issues.
Students ought to understand that the course is taught by different lectures depending to
the nature of a topic.
NB; BALE students study this course only for the first semester while LL.B students are
studying the course both first as well as second semester of the given year.
It should be noted that, this work is not my pure original work but it’s the combination of
an assortment of materials which have been written by various writers; mostly, Lectures of
University of Dar es Salaam School of Law {UDSoL}. But it should not be the Prima facie
that the document does not belong to me, since there are some of points that i reproduced
myself hereunder.
Much appreciation to Dr, James Jesse (BALE Coordinator), Mr. Jaba, and Professor Chris
Maina Peter whom their work become valuable and useful to the students who pursue law
courses. Their materials impressed me to reproduce them so that it could be easy for my
fellow comrades (Ladies and Gentlemen) to use them as the addition sources to refer.
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COURSE OUTLINE FOR CONSTITUTIONAL LAW I{LW/LWE 100} UDSM SCHOOL OF LAW
SEMESTER I
I, THE THEORY OF STATE AND LAW
{i} Bourgeois theory
{ii} Marxist theory
These theories tried to explain the origin of state and law; some argue that state and law
began together.
BOOKS FOR REFERENCE UNDER THIS MODULE
 Engels Fredrick (1977) The origin of the family private property and the
state; progress publishers: Moscow
 Lenin Vladimir (1968) State and Revolution, Selected Works. Vol. II;
Progress Publishers
 Marx Carl (1947) Communist manifesto
 Kelsen Hans (1945) General theory of State and Law, Harvard University
press
 Devisov Kenenov (1987) Theory of state and Law, Progress Publishers:
Moscow
II.MEANINGS AND CLASSIFFICATION OF CONSTITUTIONS
1. Difinition of Constitution
2. Sources of Constitution
3. Functions of Constitution
(a). Legitimizing
(b). Ideological
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(c). Organizing
4. Classification of Constitution
(a). Written and Unwritten
(b). Flexible and Rigid
(c). Federal and Unitary
(d). Presidential and Parliamentary
(e). Monarchy and Republic
 Phillips,O.H., O. Hood Phillips’ Constitutional and Administrative Law, 7 th Ed.,

Sweet &Maxwell Ltd.,1987
 Wade, E.C.S., Constitutional Law, 6Ed.,1960
 Wade and Bradley, Constitutional Law,1970
 Wade and Phillips, Constitutional Law,1995
 Wheare,K.C,. Modern Constitutions, Oxford University Press, London,1964
 Weber, Max, Legal Foundation of Modern Capitalism, in Ghai, Y., et al eds, The
Political Economy of Law, London, 1987, pp.47-56
 Gramsci,A., State and Civil Society, in Ghai, ibid, pp.198-203
 Ghai, Y., The Rule of Law, Legitimacy and Governance, International Journal of the
sociology of Law, Vol.14
 Kelsen, H., The Basic Norm of a Legal Norm, in Introduction to Jurisprudence, 4 th
Ed., pp.318-322
 Tsikata, Fui. Limits of Constitutional Law(handout)
 Tsikata, Fui, The Constitutional as economic document (handout)
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CASES
1. Kesavananda v State f Kerala. All Indian Reports (AIR) 1973 Supreme Court 1461,
at 1654, para.787
2. Cooper v Commissioner of Income Tax (1907-4 Commonwealth Law reports (CLR)
1304 in Jennings, W.I., Constitutional Laws of the Commonwealth, p. 83, at pp. 84-
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III. CONSTITUTIONAL HISTORY: DEVELOPMENT OF CONSTITUTION IN

SOCIO-ECONOMIC PERSPECTIVE
1. Gentile Constitution
(a). The Gentile Constitution in Greek Societies
(b). The Gentile Constitution in Ancient Rome
(c). The Tribal Constitution in Germanic Societies
(d). The Gentile Constitution in Selected Tanzanian Societies
2. Slave State Constitution
3. Feudal State Constitution
4. The Rise of Bourgeois (liberal) democracy and the contribution of bourgeois
Philosophers
(a). Hugo Grotius
(b). Thomas Hobbes
(c). John Locke
(d). J.J. Rousseau
(e). Montesquieu
 Anderson, P., Passages From Antiquity to Feudalism, NLB. 1964

 Engels, F. The Origin of the Family, Private Property and the State, Progress
Publishers, Moscow;1977
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 Engels, F., The Part Played Labour in the Transition from Ape to Man
Selected Works, Vol. III., Progress Publishers,Moscow,1977
 Denisov,A., et al. Theory of State and Law, Progress Publishers;Mscow:1987
 Leontyev, Political Economy: A condensed course, International Publishers,
New York, 1975
 Tigar, M.E.,Laaw and the Rise of Capitalism, Monthly Review Press; New
York,1977
 Kozlov, G.A., Political Economy;Capitalism,1977
 Friedmann, Legal Theory,5th Ed.,Stevens and Sons, London, 1967
 Dias, R., Jurisprudence, 2nd Ed., Butterworth’s, London 1964
 Bodenheimer, Jurisprudence: The Philosophy and methods of the Laws,1962
 Allen,Stephen Raley, The evolution of Governments and Laws, Princeton
University Press;Princeton,1919
 Friedrich, C.J., Constitutional Government and Democracy, Theory and
Practice in Europe and America; New York,1950
 Mcllwain, Charles Howard, Constitutionalism, Ancient and Modern, Great
Seal Books, New York, Rev. ed. 1961
 Mcllwain. C.H., Constitutionalism and the Changing World, Collected
Papers, Cambridge University Press;London,1969
 Rose Grahan H., Questions and Answers on Constitutional Law and Legal
History, Sweet&Maxwell. London. 8th Ed,1964
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IV.CONSTITUTIONAL PRINCIPLES AND DOCRINES

1. Meaning of powers and checks and balances
(a). Meaning
(b). It’s application in selected countries
(c). Critique
2. The concept of sovereignty and Parliamentary sovereignty
(a). Definition of sovereign and sovereignty
(b). Historical development
(c). Sovereign power
(d). People
(e). Parliamentary Sovereignty
(f). Its application in difference states
3. Parliamentary supremacy
(a). Definition
(b).Historical development
(c). Parliamentary Supremacy
(d).Part supremacy
(e). Supremacy of the Constitution
(f).Supremacy of the law
(g). Its applicability in several countries
4. Ministerial responsibility
(a). Meaning
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(b). Aspects
(c). Accountability and responsibility in a parliamentary government
(d). Accountability and responsibility n a presidential type of government
5. Rule of law
(a). Meaning
(b). Principles
(c). Equality before the law
(d). Supremacy of the Law
(e). Historical development
(f). The contribution made by the ICJ
(g). Modern conception
6. Independence of the Judiciary
(a).Meaning
(b). Historical development
(c). Principles
(d). Constitutional guarantees in selected countries
 Philips, O.H.,O. Hood Phillip’s Constitutional and Administrative Law.

 Wade E.C.S. Constitutional Law, 6th Ed.,1960
 Wade and Bradley, Constitutional Law,1970
 Wade and Phillips, Constitutinal Law 1965
 Wheare, C.Mordern Constitutions, Oxford University Press, London, 1965
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 Friedrich, Carl Joachim, Constitutional Government and Democracy, theory and practice in
Europe and America, New York, 1950
 Mcllwain, Charles Horward, Constitutionalism, Ancient and Modern, Great Seal Books, New
York, Rev. ed. 1961
 Mcllwain, Charles Horwrd, Constitutional and the Changing word, collected papers,
Cambridge University Press, London, 1969
 Rose Grahan H., Questions and Answers on Constitutional Law and Legal History,
Sweet&Maxwell, London, 8th Ed,1964
 Harris, David, Study Guide to Constitutional Law, Sweet&Maxwell, London, 1967
 Yardley D.C.M., Introduction to British Constitutional Law, Butterworths, London, 4 th
Ed,.1974
 Phillips,O.H., Leading cases in Constitutional Administrative law, 4 th ed, London,1973
 Fawcett James, The British Commonwealth in international Law, Stevens, London,1973
 De Smith, S.A., The Commonwealth and its Constitutions, Stevens, London, 1964
 Jennings, Sir Wiliam Ivor, Constitutional Laws of the Commonwealth.3 rd ed., Clarendon
Press,Oxford,1957
 Zurcher, Arnold, Constitutions and Constitutional Trends since World War III, with special
reference to the new constitutions of Western Europe, New York,1951
 Ghai&McAuslan, Public Law and Political Change in Kenya
 Wolf Phillips, Constitutions of Modern states, Praeger, NewYork, 1968
 Cole,J.S.R and Denison,W.N., The British Commonwealth. The development of its Law and
Constitutions, Tanganyika, Stevens&Sons, London.1964
 Msekwa, P., Towards Party Supremacy, 1977
 Mtaki, C.K., “The doctrine of Separation of Powers ans Constitutional developments in
Tanzania” in Mtaki, C.K andOkema, M.,(eds), Constitutional Reforms and Democratic
Governance in Tanzania, Friedrich Naumann Stiftung&Faculty of Law, Dar er Salaam,1994
 Dicey, A.V., Introduction to the Study of Law of the Constitution,10th edn,1959
 Srivastava,B.P., The Constitution of the United Republic of Tanzania: Some Salient Features –
Some Riddles, Professorial Inaugural Lecture Series, No.34, University of Dar es Salaam
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 Mwakyembe,H.G., “The Parliament and the Electoral Process,” in Shivji,I.G., The SState and
the Working People in Tanzania, CODESRIA Book Series, London,1986
 Mlimuka,A.K.L.J. and Kabudi, P.J.A.M., “The State and the Party” in Shivji, I.G., The State
and the Working People in Tanzania,1986.
 Seaton and Warioba “The Constitution of Tanzania: An overview” in EALR Vols 11-14.1978-
1981
 Mwaikusa, J.T., “The Limits of Judicial Enterprise. Judicial Powers in the Process of Political
Change in Tanzania. Journal of African Law, Vol. 40 No.2,1996
 Fimbo,G.M., “Transformation of the National Assembly in Tanzania: From Rubber Stamping
to Supremacy?” in the Lawyer of Tanzania, Special Issue, 1995
 Wade,H.W.R., “The Basis of Legal Sovereignty,” Cambridge Law Journal, 1995, pg 172
 Nyerere,J.K., Fredom and Unity, Oxford Unity Press, Dar es Salaam,1966
 Nyerere,J.K., Freedom and Socialism, Oxford University Press, Dar es Salaam,1968
 Nwabueze, B., Presidentialism in Commonwealth Africa, C.Hurst &Company, London,1974
 Chakravetti,S., Administrative Laws and Tribunals, 2nd ed.1988
 Ghai,Y., “Constitutional and Political Order in East Africa,” in 211, I.C.L.O
 McEldowey, Public Law, London,1994
 Montesquieu, Sprit of Laws, Chapter 6
 Kumar,U.,Some Preliminary Observations on the Administration of Justice in a One-Party
African State: The Tanzanian Experience , “in Lesotho Law Journal, Vol.2,1986
 Shivji, I.G., “The changing State from an extra-legal to an intra-legal state in Tanzania,” in
Mtaki, C.K. and Okema,M.,(eds) Constitutional Reforms and Democratic Governance in
Tanzania. Friiedrich Naumann Stiftung &Faculty of Law, Dar es Salaam,1994
 Lobulu,B., “The Rule of Law in Zanzibar,” in Dar es Salaam University Law
Journal,Vol.5.1973
 United States of America Constitution
 Basic Law for the Federal Republic of Germany
 The Constitution of the Republic of South Africa,1996
 The Constitution of Republic of Namibia
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 The Constitution of Kenya

 The Constitution of the United Republic of Tanzani,1977
 Constitution of the Republic of Uganda,1995
 The Constitutional of Zanzibar of 1984
CASES
1. Liyanage v R [1967] A.C. 259
2. Hinds v R [1971] A.C 195
3. Dupport Steel Ltd. [1980] 1 WLR 142
4. Abse and Smith [1986] QB 536, 553
5. Malone v Metropolitan Police [1979] Ch.D 344
6. Ally Juu ya Watu v Roserian Mollel and another [1979] L.R.T. n.6
7. James Bitta vIddi Kambi [1979] L.R.T. n.9
8. Hmisi Masisi and others v R [1985] T.L.R. 24
9. Ibingira vUganda E.A. 306
10. Ram Jawaya v State of Punjab [A.I.R. 1955 S.C.549]
11. Asif Hameed v State of J.&K.[A.I.R,1989 S.C.1899]
12. Chumchua s/o Marwa v Officerni/c of Musoma Prison &A.G. Misc.Cr. Cause No.2 of1988, High
Court of Mwanza, Unreported
13. Daudi Pete v R Misc. cr.Cause No. 41 of 1989, High Court of Mwanza, Unreported
14. Kazembe v Msangi Cr. Cause No. 41 of 1989, High Court at Dar es Salaam
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V.CONSTITUTIONALISM
1. Definition
2. Essential features
3. Constitutions and Constitutionalism
 De Smith, Constitutional Law,1962

 Shivji, State and Constitutionalism, SAPES, Harare,1991
 Okoth-Ogendo,H.W.O, Constitutions without Constitutionalism:An African
Paradox, in Shivji,ibid.
 Shivji, The state of the Constitution and Constitution of the state in Tanzania, in
E.A.L.R., Vols 11/14
 Ghai, Limits of Constitutionalism: third World Perspectives,1989
 McLlwain,C.H., Constitutionalism Ancient and Modern, Great Seal Booksork,
Rev.ed.New York,1961
 McLlwain, C.H., Constitutionalism and the changing World, Collected Papers,
Cambridge University Press,London,1969
 Andrews,Wlliam G. Constitution and Constitutionalism, van
Nortstrand.Princeton,1961
 Suba Rao Koka,Some constitutional problems, University of Bombay,1970
 Nwabueze,B., Constitutionalism in the emergent States, C.Hurst&Company,
London
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VI.CONSTITUTIONAL SYSTEMS
1. Parliamentary
2. Unitary v Federal
BOOKS TO REFER UNDER THIS MODULE
 Dicey,A.V., Introduction to the study of the Law of the Constitution

 Dike, C., The case against Parliamentary Sovereignty, Public Law, 1976m 283
 Nwabueze,B.O., Presidentialism in Commonwealth Africa,1974, Chapter.III
 De Smith, The New Commonwealth and its Constitutions, London,1964,Chapter 6 and 7
 Ghai, Y.& McAuslan. Public Law and Political Change in Kenya, 1970,Chapter VI
 Wheare, K.C., Federal Government, 4edn.Oxford,1963
 Srivastava, B.P., The Constitution of the United Republic of Tanzania: Some Salient Features-
Some Riddles, Professorial Inaugural Lecture Series, No.34,University of Dar es Salaam.
(Reproduced also in E.A.L.R. Vols. 11-14,1978-81)
 Shivji,I.G.,The Legal Foundations of the Union. Dar esSalaam,1990
 Mwakyembe,H.G., Tanzania’s Eighth Constitutional Amendment and Its Implications on
Constitutionalism,Democracy and the Union Question.LIT Verlag,Muenster/Hamburg,1995
 The Constitution of India
 The Constitution of Nigeria,1979
 Basic Law for the Federal Republic of Germany
 The United States of America Constitution
 The Constitution of Kenya
 Constitution of Republic of Uganda,1995
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 The Constitutional of United Republic of Tanzania,1977

 The Constitution of Zanzibar, 1984.
2, MEANINGS AND CLASSIFICATION OF CONSTITUTIONS

√ Definition of Constitution……
For normal people (laymen/non-lawyers) Constitution is the set of rules and principles
which governs an organization/state. However for some of Constitutional Lawyers, the
Constitution means;
(a) Constitution means the aggregate of only those written principles which regulate the
administration of the state, {Thomas Paine and Alexis de Tocqueville}.
For them if rules and principles of an organization cannot be produced in a written

document is not a Constitution at all. The question comes for those state that use
unwritten documents as their Constitution like the Great United Kingdom.
It means that they don’t have constitution?
(b) Constitution is the aggregate of laws and customs under which the life of the state
goes on,{Lord Bryce}
This definition, Bryce was highly influenced by the Constitutional system of Great
Britain. Since, with exception of Britain and New Zealand, no any Constitution can be
said to be an aggregate of laws, customs and principles.
(c)The Constitution is a document in which the most important laws establishing the
structure and principals of government are embodied,{Philip Nortons and Prof. Dr.
Ingo Von Munich}
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 A document which contains those rules which provide the framework for
government.
 A written document which defines the basic rights of the governed and the
limitation of the government
Sir Ivory Jennings (Law and the Constitution, 1959) offers a balanced evaluation of this
apparent incongruity by saying that;
“If a Constitution means a written document, then obviously Great Britain has no
Constitution. In Countries where such a document exists, the word has that meaning.
But the document itself merely sets out rules determining the creation and operation of
governmental institutions, and obviously Great Britain has such institutions and such
institutions and such rules. The phrase “British Constitution” is used to describe those
rules”.
KEY ITEMS TO CONSIDER IN DEFINING THE TERM CONSTITUTON
(i) With regard to Flexible Constitution
 It is not any way superior to any other law
 Parliament can amend any Constitutional law by ordinary law making
procedure and hence Constitutional law exists on the same footing with
other laws of an ordinary nature.
 There cannot be any distinction between fundamental law and ordinary
law.
(ii) With regard to Rigid Constitution

 Parliament cannot amend any Constitutional law by ordinary law making
procedure.
 Constitution is the grund norm
(The jurist and legal philosopher Hans Kelsen coined the term to refer to the
fundamental norm).
 Grundnorm means fundamental norm
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 Constitution is the mother law

 The governing wheel of the state
 No other law or government action can supplant the provisions of the
Constitution
 Constitutional law is considered as the point of reference to test the
validity of all other laws.
 Any law which is inconsistence with Constitution is null and void
 Null and void means ineffective/hopeless/poor/bootless/abortive or
purposeless.{Refer the case of ………….}
√ Sources of Constitution
(a)The People;
The Constitution is the manifestation of the will of people on how they want to live and
to govern themselves;
This argument is exemplified by the preamble to the Constitution of the United
Republic of Tanzania, 1977 which states that;
“WHEREAS WE, the people of the United Republic of Tanzania, have firmly and
solemnly resolved to build in our country a society founded on principles of freedom,
justice, fraternity and concord.”
Also in the USA Constitution this argument have been shown as follows;
“We the people of the United states, in order to form a more perfect union establish
Justice, ensure domestic Tranquility, provide for the common defense, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of America”.
(b) Statutory Instruments/Acts of Parliament
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Although laws made by the parliament derive their legitimacy from the Constitution.
However, there are moments where the parliament makes laws that have constitutional
effect, e.g. the Bill of Rights (Act No.15 of 1984), the Treaty of Union between
Tanganyika and Zanzibar of 1964 and Acts of Union of 1964.
(c) Judicial precedents/Interpretations

These are decision of the Court used as the source for future decision making.
This is known as stare decisis (to stand upon decisions) in which precedents are
authoritative and binding and must be followed.
NB: Refer various judgments by Hon. Justice Mwalusanya on Human and People’s
Rights cases.
(d) International Conventions and Treaties
International Community under agreements between states normally form part
and parcel of superior laws of the land in the respective states. {Article 63(3)(e)
of the Tanzania Constitution,1977}describe that;
Deliberate upon and ratify all treaties and agreements to which the United
Republic is a party and the provisions of which require ratification.
Part III Article 12-24 of the United Republic of Tanzania Constitution is a
product of;
 Universal Declaration of Human Rights (UDHR) of 1948
 International Covenant on Civil and Political rights (ICCPR) of 1966
 African Charter on Human and Peoples Rights (ACHPR) of 1981
 International Covenant on Economics, Social and Cultural Rights
(ICESCR) of 196; and other international and regional instruments on
Human Rights.
(e) Customary international law
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These are those aspects of international law that study the principle of
customs. The international Court of Justice Statute defines customary
international law in Article 38(1) (b) as evidence of a general practice
accepted as law.{refer North Sea continental Shelf Cases).
(f)Academic works of eminent Jurists and political scientists

The works of eminent constitutional writers of scholarly nature may be
persuasive value to a Constitution Court’s decision. Such works maybe used
in framing new Constitutional rules or provisions or in assisting
interpretation of certain provisions of the Constitution. .e.g. writings by Prof.
Issa Shivji on constitutionalism and Acts of the union
√ Functions of Constitution
Constitution plays various functions in any civil society in enhancing daily state power
rooting, It’s usually set out the structure of the state. The major state institutions and the
principles governing their relations with each other and with the state citizens.
(i) Organizing.
Constitution enables inauguration of offices, political positions and key state institutions or
machineries, e.g.
 The Judicial Service Commission under article (112) (1) in the URT Constitution.
 The Commission for Human Rights and Good Governance (CHRAGG) under
article (129) (1) of URT Constitution.
 The office of the Controller and Auditor- General under article (143) (1) of URT
Constitution.
(ii) Distributing
Constitution ensure the total separation of power in a certain state, for instance in URT
Constitution article 4 the three organs of the state have been separated.
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{Refer; The URT Constitution chapter Two, Three and Five.

(iii)Ideological
The Constitution set out basic state economic, political and religious ideologies e.g.
socialism, multiparty and secularism under article (3) (1) of URT Constitution.
iv) Regulating/Legitimizing
Constitution defines the power under which the government may act as it sets the limits to
the power which can be exercised, and the manner in which they may be exercised. Also it
creates basic legal framework within which vital state powers can be exercised.
{See article 33,62,74,84,112 of URT Constitution}.
GENERAL FUNCTIONS OF THE CONSTITUTION
 To provide for and guarantee the basic rights and freedom of the people : article 12-
30.
 To provide security and defense of the state: article (147) (2).
 To manage and run public service and the economy: article 133-1144.
 To establish government organs, recruitment and discipline of public officers: article
132.
 To declare the state name, people, character political system and territorial boundary
of the state. Article 1, 2 and 3.
√Classification of Constitution
Constitution is classified based on various forms; These forms are as follows,,
(a) Classification according to the form by which Constitutions are embodied
(how it appears)
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 Written Constitution
A written/on paper/documentary constitution is on contained within a single document or
series of documents. Various Countries like Tanzania, United States of America as well as
Russia follow under this category.
 Unwritten Constitution
Unwritten/non-documentary is the Constitution which is not contained in the single
document, but it consist several different sources which can be written or unwritten.
The accumulation of various statutes, conventions, political customs, judicial decisions
(precedent) as well as treaties which exist in scattered way, collectively used to form a
constitution of a certain State. Countries which follow under this category are like;
Israel
The state of Israel operates under an unwritten constitution and by the the Harari Decision
of June 30, 1950, which was adopted by the Israel Constituent Assembly. Israel has also
enacted several basic laws which focus on human rights and the government activities. The
basic Laws of Israel was the country’s common approach and considered the state’s
constitution between 1995 and 2006 during the tenure of Aharon Barak, the Supreme
Court president.
The state of Israel should have prepared its constitution by October 1, 1948, according to
the proclamation of the state’s independence of May 14, 1948. The 1950’s decision to
legislate the constitution chapter by chapter resulted in the disagreement on the purpose of
the state and its identity.
New Zealand
The constitution of New Zealand is a set of laws and principles that define the country and
its Citizens. The constitution is concerned with the relationship between the individual and
the state, and how the government should function.
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New Zealand has no single constitutional document and instead relies on several
documents including the Constitution Act of 1986, Acts of parliament and court decisions.
The uncodified constitution establishes a country as Monarchy with the Treaty of Waitangi
is considered as the founding document for the government. The three branches of the
government of New Zealand and their function are founded on the Constitution Act of
1986.
Saudi Arabia
Saudi Arabia bases its legal system on Sharia laws derived from the Quran and Sunnah of
Prophet Muhammad. The Sharia also includes the Islamic scholarly consensus which is
interpreted by the by country’s judges. Sharia has been adopted in Saud Arabia in an
uncodified form. Shari is also supplemented by regulations issued by royal decrees which
put into consideration the modern issues such as intellectual property and corporate laws.
Sharia remains the ultimate authority in Saudi Arabia with Quran and Sunnah adopted as
the constitution. However, the codified Sharia often leads to considerable variation in
interpretation and application. Judges often refer to the six medieval texts from Hanbali
School before making a ruling.
United Kingdom
The constitution of Unites Kingdom is based on a set of laws and principles which define
the people and the country. The constitution is concerned with the relationship between
the people and the state, and the activities of legislature, judiciary and the executive. The
UK constitution is uncodified but is founded on several written and unwritten sources.
The constitution is drawn for sources including status law, common law, political
convention and works of authority. The laws passed by the parliament are the final source
of law in the United Kingdom. Parliament has the powers of changing a constitution by
passing new statutes through an Act of Parliament. According to the Rule of Law, everyone
in the United Kingdom, including those in authority, are equal before the law.
Canada
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The Canadian constitution is a combination of the written acts and unwritten conventions.
It outlines the countries system of government and the rights of all citizens and those in the
country. The constitution consists of Canada Act 1982, Constitution Act 1867, their
amendments, and the acts and orders contained in section 52(2) of the Constitution Act,
1982. The sources of the unwritten constitutional law include constitutional conventions,
royal prerogative by the Crown and the unwritten principles. The Canadian Constitutional
Law is concerned with the interpretation and application of the constitution.
Challenges
This classification of Constitution is not scientific since no Constitution can be fully written
or unwritten. In normal sense unwritten Constitution must have written element similarly,
a written Constitution cannot be fully written, some elements exist in a written form.
For example British Constitution is unwritten but some important elements of it like;
Magna Carta (1215), The European Community Act, The petition of Rights as well as Act
of Settlement of 1700 are enclosed in written form.
On the other hand, the American Constitution is written but some subjects of it like;
working procedure of the congress, Political party organization, Cabinet and Committee of
the congress they are basically depend on political custom of the state.
Disparity between written and unwritten constitution
 Written constitution
1. The provisions such as articles, clauses, schedules have been codified into single legal
document.
2. The Constitution is the supreme power and not the organs of the government such as
executive, legislature and judiciary.
3. In order to maintain the constitutional supremacy, the judiciary enjoys wider power.
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4. It can be rigid (complex procedures are involved to amend) or flexible (easy to amend)
or both. E.g. Indian constitution is both rigid and flexible.
5. Either federal (sharing of power between center and states) or unitary (powers are vested
in the centre).
6. it’s enacted. i.e.: Framed by a body appointed solely for this purpose.eg. Tanzania
Constituent Assembly.
 Unwritten Constitution
1. The provisions such as articles, clauses, schedules have not been codified into a single
legal document.
2. Parliament is the supreme power.
3. Judicial powers are restricted.
4. Necessarily flexible.
5. Necessarily unitary.
6. Evolved constitution over a long period of time from various sources.
(b).Classification according to the mode of amendment
These classification answers the question of whether a Constitution can be amended
easily or not.
Under this classification we have two forms of Constitution namely;
 Flexible/stretchy Constitution
This kind of Constitution can be effortlessly changed. This kind of Constitution only
necessitates few special amending modus operandi. The Parliament can alter
Constitutional main beliefs and defines new government feat through ordinary legislative
process. Examples of Countries which trail under this Constitution are like Canada and
United Kingdom.
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 Rigid/stiff
This is the kind of constitution that cannot be easily changed (usually, a written
constitution). Moreover, it is a constitution whose terms cannot be tainted by ordinary
forms of legislation, only by special amending procedures. That is to say, if the constitution
itself provides that particular amendment. Then it could be possible to amend the
Constitution. E.g. Article 98 of the Tanzanian Constitution.
(b) Classification based on the nature and form of the state and its government
 Federal constitution
Under federal constitution there is existence of division of power between central
government and the individual states or provinces which make up the federation. The rule
of allotment the power will be plainly set down in the constituent manuscript.
Some power like state security and defense will be reserved exclusively to the central
government, planning and raising of local taxation to the regional government; and others
will be held on the on the basis of partnership, powers being given to each level of
government with overriding power, perhaps, reserved between central and regional(local)
government. Examples of such constitution are like constitution of Malaysia, Nigeria and
Germany.
 Unitary constitution
In the constitution which formed as the result of union between sovereign states. Under
this form a state is governed as a one single state under which the central government is
supreme and any administrative division exercise only powers which their government
chooses to retain. Examples states which follow under this constitution are like Tanzania
(Tanganyika and Zanzibar) and United Kingdom (Scotland, Wales, England and Northern
Island).
Republican Constitution
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 This is the kind of constitution which exists in the state which has its
figurehead democratically elected President. Examples of this constitution
are like of Tanzania, Kenya and Uganda.
 Presidential Constitution
This is the kind of constitution which exists in the state, where President is the head of
both executive and state. Tanzania is among of the countries which follow under this
category.
 Parliamentary constitution
This form of a constitution is applicable for those states which the chief executive is a
prime Minister who is the member of executive and is responsible for legislature. Israel and
United Kingdom constitution follow under this category
 Democratic and dictatorial Constitution

Democratic constitution is used for those countries which obey principle of democracy
while, autocratic constitution is applicable for those states which are under one
person/group of people (i.e. which does not allow democracy).
(c) Classification according to the nature of political system of a particular state
 Socialistic/Monopoly Constitution
The nature of the state which this constitution fit is characterized by single party ruling
system under communist ideologies of Marx and Lenin. Tanzania is among of sates which
tried to adopt this form constitution in 1967under Mwalimu J.K Nyerere. Other states
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where like Cuba under Fidel Alejandro Castro Ruz, and China under Mao Tse-tung( The
dong’s).
 Multiparty Constitution
This kind of constitution does not restrict the freedom of political association e.g. Rwanda
and Kenya constitution.
CHARACTERICICTS OF TANZANIAN CONSTITUTION
In summary, it can be said that Tanzanian constitution it:
 Is largely written in character

 Is inflexible in nature
 Is supreme/mother law
 Is unitary in structure
 Exhibits mainly but not completely separation of power
 Is republican/presidential.
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THE CONSTITUTIONAL HISTORY: DEVELOPMENT OF CONSTITUTION IN

SOCIAL-ECONOMIC PERSPECTIVE
INTRODUCTION
Etymologically, the term constitution is a Latin word which means an important law
(Constitutiones principis) promulgated by the Roman emperor, i.e., the edicta,
mandata,decrera and rescripta. However, in modern context; A constitution is a body or a
system or a collection of important rules (above other norms or customs) which govern
social-economic and political organization of a society. Depending on the literacy level and
development of a society, early constitutions were either scribed in writing (legal codes) or
largely extracted from or referred to in traditions and customs (norms) of a society.
Therefore, it can be argue that a constitution as a body of important rules of a society is as
older as human race. Now, let us look the earliest known constitutional forms of
humankind.
PART ONE: GENTILE CONSTITUTION
The Gentile constitution, also known as ‘the tribal constitution’ is a form of constitutional
organization of human society which existed in early stages of human development (pre
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historic stages of culture). Gentile constitution existed in the world before renaissance or
modern civilization. Engels in his Book “The origin of the Family, Private Property and the
state” divided gentile society’s development into three stages i.e. Savagery, Barbarism and
Civilization.
Savagery was a period in which human beings appropriated products in their nature state
and their natural state and products of human art were chiefly instruments which assisted
appropriation. Societies at this stage were hunters (used arrow and bow), cannibals,
gatherers, and developed speech or language. Whilst,
Barbarism was a period during which man learns to breed domestic animals and to
practice agriculture, and acquires methods of increasing the supply of natural products by
human activity. This stage was marked by the introduction of pottery, agriculture, iron
smelting use of bricks and stone for building. Lastly,
Civilization was a time in which man leant a more advanced application of work to the
products of nature, the period of industry proper and of art. It was characterized by
invention of alphabet and use of written records.
It’s believed that Gentile Constitution arose during “primitive communalism/communal
Societies” (Karl Marx and Engels) or in Traditional societies (Prof. Rostow), at this period,
this period were;
 In transition to ‘early Iron Age’ from ‘late Stone Age’.

 Socio-economic life of the society was still at its primitive rudimentary level
(i.e. limited technology).
 Lived in communal and egalitarian societies
 Subsistence agriculture (mainly hunters and gathers).
 Communal ownership of means of production
 Participated in the same totem
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***A totem is a natural object or animal believed by a particular society to have spiritual
significance and adopted by it as an emblem.
 Had no written codes of law, social rules were characterized by customs

and traditions
 Had no centralized political groupings
 Dominated by proto-democracy (individuals who demonstrated extra
skills become leaders of their communities, e.g. warriors, rain-makers, and
e.t.c.
The term, ‘Gentile’ (not Jewish) relates or indicates a nation or clan (same clan, race,
family) especially, gens. ‘Gens’ means a group of families in ancient Rome who shared a
name and claimed a common origin/a group of people who are related through their male
ancestors.
SOCIAL DETRMINANT OF THE GENTILE CONSTITUTION

THE FAMILY
It was the basic social unity around which labor was organized.
Engels notes further that the world “family” comes from a Latin word “famulus” which
means “domestic slave” In other words; a family was the total number of slaves owned by a
man. They were his tool of production. The man also had the right of life and death over
his family, including his wife and children.
According to Morgan, they were four stages of family life, i.e. consanguine family,
Punaluan family (both emerged during slavery), Pairing family (emerged in barbarism) and
monogamous family (emerged in civilization).
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In savage society, social relation was promiscuous i.e. no restriction or prohibitions on

sexual intercourse. At the time of Promiscuity, human beings produced for subsistence (no
surplus). The mother right was predominant due to lack of permanent settlements.
The promiscuity practices gave way to consanguine family (marriage groups separated
according to the generation). Brothers and sisters, male and females cousins of the first,
second and more remote degrees are all mutually brothers and sisters, and precisely because
of this are all mutually husbands and wives. Improvement of tools of production which led
to surplus products and permanent settlements restricted marriage and sex between blood
relatives thus, Punaluan family emerged. Thus, parents and children, natural brothers and
sisters were excluded from mutual sexual relations.
Later, group marriage/class marriage (polyandry, polygamy) i.e. one women married to
several men, and vice versa emerged. Thought for a short time, increase of population and a
need for alliance resulted into another form of a family;
Pairing/ patriarchal family, whereas marriage arrangements involved parents and close
relatives of marriage partners, as the society advanced.
Monogamous marriage /family (one man, one woman; or in Engel’s words, “monogamous
marriage is the subjugation of one sex by the other” emerged. Thus the father rights
become predominant and the marriage within the clan was restricted.
Engels says “The overthrow of mother right was the world historical defeat of the female
sex. The man took command in the home also; the women was degraded and reduced to
servitude; She become the slave of his desire and a mere instrument for the production of
children”
THE BASIC ORGANS UNDER GENTILE CONSTITUTION

THE CLAN
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A clan is a body of Kinsmen or relatives who claim common descendants. The clan was a
basic organizational structure of the gentile constitution which composed a cluster of
families tied together by consanguine relationship. They usually share common clan name,
totem, taboos, traditions, religious institutions, ancestral rites and burial places.
THE CLAN ASSEMBLY
The clan assembly composed of all adult members of the clan led by a ‘clan chief’ or ‘clan
head’. The clan chief was either a clan founder or inherited that position of leadership by
birth right and seniority of age.
THE PHRATRY
Phratry means a kingship group in a certain tribal/ society. It is said to be the union of
various clans formed after several clans detach themselves from the original clan. Normally
the phratry recognizes one clan as the founder of other clan groups.
THE PHRATRY ASSEMBLY
It is the organ which composed of leaders of various clans related by geographical or
consanguine ties. The Phratry leader was either the most senior or well-off or militarily
powerfully clan leader.
FUNCTIONS OF PHRATRY BY THEN
To secure and maintain law, order and defense of the clans under them.
To amend various roles made by the clan assembly.
Entertained inter-clan disputes, and acted as an appellate organ in the
settlement of dispute arising from clans under them. Thus, had power to
overturn the decisions made by the clan assemblies. (Acted the final
decisions maker).
Paid tributes to the tribal chief or king, and supplied him or her with solders
during military expeditions.
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THE TRIBAL ASSEMBLY

THE TRIBAL
Tribal can be referred as a social or political division in traditional society consisting of
linked families or communities with common culture and dialect. A tribal is made up by
several Phratries or a coalition of clans recognizing each other as having a common
ancestry. The basic laws of the tribal were customary norms passed from one generation to
another. If a tribal remain intact for a considerable duration of time (e.g. a century)
becomes “Confederacy”.
Tribal confederacy was a union of tribal to assist one another in state of emergence or war.
The confederacy was formed by common blood and descendant for perpetual alliance and
on an equal footing.
Usually, a tribal is characterized by a common economic activities and territory. It is own

name, special dialect, right to elect and depose a leader, common religious conceptions and
ceremonies.
THE TRIBAL ASSEMBLY
The tribal assembly was highest organ of power in gentile or tribal constitutional system
headed by a King or Head chief. It was composed of the King or chief, a council of Phratry
leaders and King’s curia (Council of Elders) who always sat with the King in his Court.
The King/ head chief governed through the tribal council/assembly.
The King or Head chief inherited the throne by descent or blood lineage, or normal
member of the society who turned out to have special talent or power.
FUNCTIONS OF TRIBAL ASSEMBLY/COUNCIL BY THEN
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Unlike the clan and the Phratry assemblies, the tribal council was an list constitutional
body with no direct participation of tribal members (representative body). It was the
highest legislative, executive and adjudicative body. It had powers make and unmake
customary laws; hear any matter, and appeals; levy tributes upon Phratry; order and receive
both man and logical support from the Phratries during wars; and it had power over war
and peace. The tribal constitution was characterized by;
 Participation of all members of the tribe in discussing common matters of the tribe.
 Every one participated in implementation of decisions reached by the tribal
assembly. This was because there was no special body to enforce such decisions.
 Traditions methods commonly used in solving disputes e.g. mediation,
reconciliation,
negotiation e.t.c
 Every member of a tribe could stand for election or participate in deposing a leader.
 Special dialect peculiar to its tribe.
GENTILE CONSTIUTION: CASE STUDIES OFANCIENT GREEK ROMAN AND
GERMANI SOCIETIES
1. THE GENTILE CONSTITUTION IN GREEK SOCIETIES
Culturally, the Greek or Athenian gens were characterized by common religious rites and
burial places, mutual rights of inheritance, descent in the male line (parliament). Prohibited
marriages within the Gens save for heiress, and the right to elect chief and to depose them.
FORMS OF TRIBAL CONSTITUTION IN GREEK/ATHENIAN SOCIETIES
1. Permanent authority was vested in the council of chiefs.
Made up of elected clans chiefs (i.e. the phratriarchos).
2. The assembly of the people or popular assembly
 It was a supreme organ in Athens
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 Every member of the society was allowed to attend and had the right to
speak.
 Practiced direct democracy, decisions were made by rising hands or
approbation.
 Elected people to head public offices
3. The leader of the army or military commander
 Elected or recommended by the people
 Defended the society (soldiers) and in race occasions performed religious as
well as judicial functions
 Later, Basileus become noble (referred as King) and their position was
hereditary.
DECLINE OF ATHENIAN GENTILE CONSTITUTION
Accumulation of Private properties and emergence of nobility (royal families) in Athens
replaced Kingship ties and thus, Gentile constitution collapsed. Athens territory was
divided and the people become attached politically to districts (demes). Demes were self-
governing, electing president and treasurer. However, demes power were I the assembly of
demotes or residents of each deme. Increase of social stratification among the Athenians led
to the emergence of Theseus constitution (by King theseus) which divide Greek people into
three classes i.e. nobility (Eupatridae, include elders, tribe chiefs, priests and other public
officers); land tillers (geomori/geomoroi), include freemen and producers); and commercial
and artisans/craftsmen population (demiurgi). It further separated tribal affairs (matters on
which each tribe can decide on its own from affairs (matters controlled by the general
council).
**In 621BC a scribe named Draco wrote the law of the city-state of Athens and being quite
cruel. This code prescribed the death penalty for any offence in594B Solon the ruler of
Athens, created the new Solonian Constitution. It eased the burden of the workers, allowed
private ownership of properties and prohibited enslavement of Athenians. But foreigners.
However, the Solonian Constitution made the ruling class to be determined by wealth
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(plutocracy) rather than by birth (aristocracy). Cleisthenes constitution again reformed the
Athenian constitution and set it in the democratic footing in 508 BC. Cleisthenes
constitution divided Greek Societies into 100 autonomous townships known as demes as
per places of domicile; and vested supreme authority in the assembly of the people.
2. THE GENTILE CONSTITUTION IN INCIENT ROME

Just like the Greek or Athenian gens, the Roman gens were characterized by common
religious rites and burial places. Mutual rights of inheritance among gentile members.
Descent in the male line (Patrilineal). Obligation to marry within the gens, common land
(land owned by the tribe), mutual assistance among members of the gens, right to bear
gentile name, and the right to elect chieftains and to depose them.
FORMS OF TRIBAL/GENTILE CONSTITUTION IN ANCIENT ROME
 Each tribe elected a president who was both militarily leader and a priest.
 Public affairs were managed by the senate composed of presidents (called Patres i.e.
elders of the gens) of three hundred genes.
 The Senate elected high officials (including including the rex/king); declared war,
and acted as a Supreme Court.
 There were thirty Curiae, Ten Curia formed a tribe. The three tribes formed the
populus romanus (Roman People).
Curia denote a division of an ancient Roman tribe (by extension), the Senate of
Cities other than Rome.
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DECLINE OF ROMAN GENTILE CONSTITUTION

Immigrants (and foreigners) and subjected people were not considered as the populus
romans. But plebs (i.e. member of the lower classes), thus excluded from all public affairs.
Since plebs controlled industrial and commercial wealth, conflicts arose frequently between
them and the populus romans over power and dominance thus collapse of gentile
Constitution.
** The Romans first codified their Constitution in 449 BC as the Twelve tables. They
operated under a series of laws that were added from time to time. But Roman law was
never recognized into a single code until the Codex Theodosianus (AD 438); later; in the
Eastern empire the Codex repetitae praelectionis(534) was highly influential throughout
Europe. This was followed in the east by the Ecloga of Leo III. THE Isaurian (740) and the
Basilica of Basil I (878).
3.THE GENTILE CONSTIUTION IN GERMANIC SOCIETIES

The Germanic gentile societies settled in the territory between the Danube. The Rhine,
the Vistula and the northern seas; The Alamannian law confirms the fact that the
people settled on the conquered land south of the Denubein gentes, and kingships until
the time of migrations. Gentes were large household communities among which the
land was divided and from which the village communities developed later on. The term
fara was used by the Burgundians and Langobards (a Gothic and a Herminonian, or
High Germany tribe) to meanthe same thing that in the Alamanian book of laws is
called genealogia.
FEATURES OF GERMANIC GENTILE CONSTITUTION
 Common terms for gens.
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 Land was tilled in common by the gens and later on by communistic family
communities.
 There were military leaders who always strove for power.
 Matrilineal societies i.e. mother right of children were highly respected (they
regarded the women as being holy and something of a prophetess). For example,
when hostages are demanded the sister’s son is considered a better pledge than
the natural son of them whom they desire to place under bond.
 Inheritance of the feuds as well as friendships of one’s father and relatives.
FORMS OF GERMANIC GENTILE CONSTITUTION
According to Tacitus. There were:
 Councils of gentile chiefs (Principles) which decided matters of minor importance

and prepared important matters for the decision of the popular assembly. The
council chiefs (principles) were distinguished from the war chiefs and lived in part.
On honorary gifts, such as cattle, grain, e.t.c., from their fellow tribesmen.
 The transition to father rights favored gradual transformation of elective office into
hereditary office. Thus giving rise to a noble family in each gens.
 The popular assembly was the real power presided over by the King or tribe chief;
the people decided by “a murmur” which signified “no”, acclamation and clanging
of weapons meant “eye”. The popular assembly was also the court of justice. Again,
death sentences were pronounced only in cases of cowardice, treason or unnatural
vises.
 The military leaders were elected solely on their merits. Irrespective of birth. They
had little power and had to rely on a force of example; as Tacitus explicitly states.
Actual disciplinary power in the army was held by the priests.
 The gents and other subdivisions also judged in a body, presided over by the chief.
Who as in all original German courts. Could be only director of the proceedings
and questioner. Among the Germans, always and everywhere, sentence was well-
defined by the entire community.
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DECLINE OF GERMAN GENTILE SYSTEM

The collapse of Germanic gens was mainly fuelled by, emergence of classes due to
permanent settlement, thus rise of new aristocratic class; the tendency of military
commanders to aspire for kingly power; and invasion of the gentes by the Roman Empire.
PART TWO: THE SLAVE STATE CONSTITUTION

EMERGENCE OF SLAVE TRADE
The rises of slave state were highly contributed by the improvement of technology which in
turn allowed generation of surplus products, increase of population, permanent settlement
and specialization. At this period, major means of production were transformed from being
communal to private ones. Gradually, the accumulation of properties by few members of
the society led to the emergence of two major classes i.e. haves and haves not. Since the
class of the haves had access to better weapons, they subjugated and conquered less
developed people (they have not). The conquered classes were either enslaved (turned into
instrument of labor) or integrated into standing tribe military/army. Therefore, the
tendency of expansionism accompanied by plundering, conquering of weak territories and
capturing of slaves transformed tribe societies into slaves. The good examples of slave state
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are the ancient Greece and Rome societies; for stance, two-third of the residents of Athens
was slaves and one third was freemen and foreigners.
THESOCIAL CLASS STRUCTURE OF SLAVE TRADE: A CASE STUDY OF THE

ROMAN KINGDOM
 SLAVEMASTERS/PATRICIANS (NOBLE)
There were the class of aristocratic (and rulers) which owned land owned land and
bought or captured slaves to till the land.
 FREEMEN/PLEBEIANS(PLEBS)
This was the class of ordinary or common members of the society who had little means
of life hood (i.e. the class of ingénue, Liberti and Libertini). It was made up by the
proletariat class, foreign petty traders (clientes). Knights (equites) and warriors.
 SLAVES/SPARTANS
A slave was an individual deprived of his liberty and forced to submit to an owner who
may buy, sell or lease him or her like any other chattel or given away as a gift. These
were, in most cases, captives of war distributed among war commanders/generals, the
ruling class and the rich. Sometimes, criminals and freemen who failed t pay their depts.
were turned into slaves. Essentially, there were two types of slave’s i.e. Private slaves
(owned by private individual) and Public slaves (owned by the public worked in temples
and other public buildings).
Generally, slaves were considered as sub-humans (chattel) exchanged like any other
commodities with no legal or civic rights. In some areas, slaves were even not allowed to
reproduce. In Roman societies, a slave was taken as a mere speaking instrument for
production.
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ORGANS OF SLAVE STATE

The exercise of power inn slave state was vested in two major organs, namely; the state
assembly/ the senate and the City state assembly/ Curiate assembly.
 THE STATE ASSEMBLY/THE ROMAN SENATE/COUNCIL OF ELDERS

Largely, it was made up by aristocracy which served as advisory council to the King. This
was a supreme body headed by the first senator/consul/military leader assisted by other
senators (minimum of 300 members). The first senator (popular in military expedition) was
elected by popular assembly through acclamation. The state assembly was vested with
power to make laws through popular direct democracy in which every freeman participated.
 CITY STATE POPULAR ASSEMBLY/CURIATE ASSEMBLY

These were assemblies in vassal city states (conquered states) which paid tributes, and
provided soldiers and logical support to the first senator during wars. It was a forum
through which people could hear announcements. Express their opinion, also served as a
trial Court for civil and criminal cases. For example, the Greece slave state was made up by
city state such Athens, Ithaca and Sparta.
**other organs included, the King or Queen(Rex/Regina), Century/Military assembly,

Executive magistrates (all bureaucrats involved in state administration such as consuls, tax
collectors, judges, censors and e.t.c).
FEATURES OF THE SLAVE STATE CONSTITUTION
 The economy was predominantly agrarian which depended on slave labor (actually
slaves were the major means of production).
 Development of various state apparatus with institutions of government such as
Courts, Army, Police and Prisons.
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 Creation of standing army that was always I pursuit of slaves and expansion of the
territories, e.g. Roman slave kingdom.
 Conquest and creation off vassal territories led by appointed vassal chiefs having
allegiance to the emperor.
 Creation of class-laws which protected existing relation of production and class
structure (jus civile i.e. Private law and jus pulicum i.e. public law-codes, penal laws)
DECLINE OF THE SLAVE STATE CONSTITUTION
 Collapse of the Roman Empire in Europe, and emergence of feudal system which
depended on serfdom.
 Class discontent, i.e. contradictions within the slave system itself (slave
reaction/revolt against slave masters/breakdown in the labor force.
 Limited ways of getting slaves (war captives, criminals, and indebted people) thus
proved to be costly and unproductive. Besides slaves were not allowed to reproduce.
PART THREE: FEUDAL STATE CONSTITUTION

The decline of slave paved the way to the raise of European feudal state constitution. Feudal
state was built in the same class superstructure as the slave state. Principally, the slave
masters become feudal lords (nobles), the slave class transformed into serfs/peasants and
class of freemen emerged as the businessmen and craftsmen, unlike slaves, the self’s rented
land from feudal lords, thus occupied and worked upon it for consideration of rent; tribute
or tillage. In feudal state, the major means of production was land, and communities were
mainly agriculturalists. Essentially, the King granted land (i.e. fief) to the nobles
(vassals/royal supporters) who would swear oath of royalty and pay homage to the King,
and promise to offer military services to him.
In England, feudal state existed between 407 and 597AD (medieval Europe) after the
destruction of tribal constitution of the Angro-Saxon societies by the German, French and
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Roman rule which brought Christianity. At the Apex f feudalism in England, 70% of the
populations were serfs, 12%freemen, 9%slaves and 9%nobles.
THE SOCIO-POLITICAL CLASS STRUCTURE OF FEUDAL STATE: A CAS STUDY
OF ENGLAND SOCIETIES
Societies in feudal period were structured on pyramid shaped hierarchy i.e. the Pope, The
King, The noble (Barons, royal court and bishops), Knights, merchants, yeomen (servants
in royal household i.e. bailiff, reeves, cottages) and serf/peasant.
THE POPE/THE CHURCH

The Pope was believed to be God’s representative (vicar) on earth. He had the right to
intervene, impose sanctions, depose or excommunicate a King. Sometimes the church
amassed forces and dethroned the Kings, e.g. in Germany, Henry IV was defeated by the
papal forces at Canossa in 1077. The church occupied large tracks of land, administered
canon law and claimed supernatural power to nominate and coronate the King as an elect
of God.
THE KING/EMPEROR
The King owned all the land and believed to rule by divine right. He granted the Land to
noblemen or vassals/puppets who vowed faithfulness to him. In 1069, all of England was
conquered by the Norman and thus placed under King William I, who in turn rewarded
lands too his Norman vassals.
BARONS, CLERGYMEN AND BISHOPS
Barons leased land approximately 1200-1800 acres from the King in return for military
services and royalty. The barons paid rents and supplied the King with soldiers or knights
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at time of war. Barons were extremely rich, powerful, controlled the land on behalf of the
King and maintained private standing armies.
KNIGHTS/WARRIORS
Knights were given land by barons in exchange for military services to the King. They were
duty bound to protect the minor including barons and their families. Knights kept the land
for their own use and subleased certain piece of land to the serfs.
SERFS
Serfs formed a class of marginalized group of land tillers (tenants). Primarily, serfs were
either laves or freemen who surrendered to feudal lords for protection. Knights gave land to
serfs inn return for free labor, rent (money) or produce. Unlike slaves, serfs were allowed to
marry and reproduce.
ORGANS OF THE FEUDAL STATE
The notable organ with executive powers in feudal system was the King’s Council or
Curiae Regis. The King’s Council carried out its function through two other small organs,
i.e. the exchequer (King’s office in charge of revenues/royal treasury) and Privy Council
(Ann inner circle of the King’s council which acted as a cabinet/sovereign’s private
councilors.
FEATURES OF THEFEUDAL STATE CONSTITUTION
 The law was class-based. Thus, the law of the King was the supreme law of the land
(i.e. King’s proclamation become the law). The King was not subjected to any
positive law (rex non potest peccare) but divine law. The law protected the existing
social classes, thus acted as a tool of oppression and exploitation.
 It was characterized by the pyramid of power i.e. from top to bottom rule of mighty.
 The government was personal possession of the King (absolute monarchy/shared
power with no one).
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 Agriculture was dominant economic activity in feudal society. The land was owned
by the King’s vassals who rented the same to tenants.
 Establishment of Kingdom states with professional standing armies. However,
barons were not allowed to surpass the King in terms of wealthy and military
powers.
 It was based on land confiscation and creation of land tenure among nobility. Feudal
lords owned land for life in return for allegiance to the King.
THE DECLINE OF FEUDAL STATE CONSTITUTION
Intensive power struggle within feudalism;the fist conflict, the King and the Church. In
England the King forced the Church to accept his power of appointing bishops, on the
hand, the church wanted to try its own believers under canon law in the ecclesiastic courts.
However, in the treaty of Westphalia the Pope and the Kings of Europe agreed on the
separation of religion from politics. The second conflict, Barons and the King. The Barons
wanted to control their commercial interest without the King’s interference. In 1215 the
Barons defeated the King, thus signed the Magna Carta (15-06-1215) which inter alia
(among others) limited the King’s absolutism and subjected to his decisions to the Consent
by a committee of 24 Barons.The third conflicts. Serf’s revolts against the King’s vassals, the
serfs demanded changes and moved into emerging towns.
**Canon law (jus canonicum) is the system of laws and legal principles made and enforced
by the hierarchical authorities of the Church to regulate its external organization and
government and to order and direct the activities of Catholics towards the mission of the
Church.
Other factors, Emergence of towns and city states, scientific discoveries, commercial
revolution (international primitive accumulation of capital /mercantilism), Industrial
revolution, Agrarian Revolution (enclosure system restricted manor to parcel land),
Glorious Revolution.
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THE BOURGEOIS/SOCIAL CONTRACT PHILOSOPHERS AND BOURGEOIS

CONSTITUTON
INTRODUCTION
This lecture explores main ideas of classical (social contract) philosophers on the emergence
of human governments and social orderliness at national and international level. It attempts
to provide an insight on human life before the emergence of state and law, in the same
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vein, explaining the relationship, in terms of rights and duties, between the ruler and the
ruled. Again, it underscores the contribution of classical philosophers to the development of
modern constitutions and legal philosophy.
PART ONE: SOCIAL CONTRACT PHILOSOPHERS
1. HUGO GROTIUS (1583-1645)
He was a Dutch jurist recognized as the father of modern international law and relations.
He lived I the times of the 8 years war between Dutch and Spain; and 30 years war between
Catholic and Protestant. He is best known for his works; On the Law of war (De Jure Belli
ac Pacis) of 1625, Mare Liberum of 1609, e.t.c. He was mainly concerned with conflicts
among nations, and between religions.
HIS MAIN IDEAS
STATE OF NATURE AND SOCIAL CONTRACT
 To him, constitution of each state had been preceded by the social contract,
 Once people have entered into a civil society through social contract, they forfeit
their rights to control or punish the ruler.
 By social contract, people had chosen the form of government which they
considered. Most suitable for themselves.
 Through social contract people transfer their power to the ruler to find protection
against danger or as a result of war or just because they prefer autocratic rulers to
liberty.
**Social Contract is an implicit agreement among the members of a society to cooperate

for social benefits, for example by sacrificing some individual freedom for state
protection. Theories of a social contract become popular in the 16 th, 17th and 18th
Centuries among theorists such as John Locke, Jean-Jacques Rousseau and Thomas
Hobbes, as the means of explaining the origin of government and the obligations of
subjects.
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NATURAL LAW AND STATE

 The state is a complete association of freemen, joined together for the enjoyment of
rights and their common interest.
 He called human nature as the grandmother, natural law the parent, and positive
law the child.
 He did not believe n sovereignty of the people, but that of the monarch and that
resistance to authority will detrimental to the natural order of the society.
 To him natural, laws are immutable and cannot be changed even by God himself
 He argued that rulers are bound by natural laws which disciplined them against
abuse of
Powers.
PEACE AND LAW OF THE NATION
 Human nature is characterized by the desire for peaceful and orderly society.
 The most fundamental of his international law principles were pacta sunt servanda
and freedom of the seas.
 He insisted peaceful existence between nations and establish laws of the nations.
That it is possible to comprehend the sources of the laws governing both individual’s
behavior and the conduct of the nation.
 Argued the respect’s property and the restitution of gain made from it.
THEORY OF WAR
 He believed that there are circumstances that war is unavoidable (theory of just war)
. For instance fight in self –defense, reparation for injury and Punishment.
 That a rational system governs international relations. He also advocated for rules to
govern conduct of war, i.e. jus ad bellum (right to war) and jus in bello (rues of
war).
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2. THOMAS HOBBES (1588-1676)

Hobbes is an English philosopher who lived during the days of civil wars. He is best
known for his works titled as De Cive (1642), and Leviathan (1651) in which he describes
human life in the state of nature, and the emergence of civil society through social contract.
Hobbes is also credited as a founder of the positivity tradition. He is labeled as an
Absolutist.
HIS MAIN IDEAS
NATURAL LAW/LAW OF NATURE
 He developed 19 principles of natural law
 Natural law to him, are not ethical principles but laws of human conduct based on
observation and appreciation of human nature.
 The chief principle of natural law was the right for self-preservation.
 Judges are supposed to interpret the laws as if the legislators intended to observe the
laws of nature.
 A real law is civil law, commanded and enforced by the sovereign.
 When he cannot obtain it, he can seek and use all helps and advantage of war.
 Performance of covenants is a fountain and origin of juice.
 The fundamental of nature is that “every man has to endeavor to obtain peace as
far as he has hope of obtaining it”
 The law of nature and civil law contain each other and are of equal extent.
STATE OF NATURE
 Means the absence of political order/structure and law.
 There was perpetual and devastating warfare which threatened everyone. It is men
and arms that make the force and power of the law.
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 Individuals are in competition with one another when they attempt to exercise their
right of nature. Such competition is unrestricted with no rules that would place an
obligation upon anyone to refrain from any action.
 Each man is at liberty to perform whatever action he sees fit. No one could stand
out to protect the right holder in the exercise of the right.
 Before any forms of political order (state of nature), every man has a right to
everything, even to one another’s body.
 Constant and unending civil war in the state of nature.
 He describes human life in the state of nature as solitary, nasty, brutish and short
due to absence of law and political order. Each person ad unlimited natural freedom
(right to all things endless war of all against all i.e. bellum omnium contra omnes)
to plunder, rape and murder.
SOCIAL CONTRACT
 The subjects could not demand the fulfillment of any obligation by the ruler. The
only condition was that the absolute ruler must keep order.
 Whatever keeps men out of the state of nature and civil society in by nature
legitimate.
 This theory avers that individual’s unity into political societies as a process of
mutual consents, agreeing to abide by common rules and accept corresponding
duties to protect themselves and one another from violence and other kind of harms.
CIVIL SOCIETY/THE STATE/SOVEREIGN/COMMONWEALTH
 Natural reason dictated to man the ruler of self-preservation for which he tried to
escape from the state of permanent insecurity.
 The church is subordinated to the state just like another corporation, thus the state
should interpret the law of nature.
 He did by transferring all his natural rights to the ruler whom he promised to obey
unconditionally.
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 The right for self defense and preservation are given upon entering a
commonwealth/civil society/political community through social contract i.e. citizen,
agrees up to give some of their liberty rights to an absolute sovereignty/monarch.
Again, members such civil society accept obligations towards others to avoid state of
anarchy/lawlessness.
 The legal order is essential to maintain the order of a civil society.
TWELVE PRINCIPAL RIGHTS OF THE SOVEREIGN/MORNACHY/GOVERNMENT .
The commonwealth is instituted when all agree in the following manner; I authorize and
give up my right of governing myself to this man, or to this assembly of men, on his
condition: that thou give up, thy right to him, and authorize all his actions in like manner.
THE SOVEREIGN HAS TWELVE (12) PRINCIPAL RIGHTS
 Because a successive covenant cannot override a prior one, the subjects cannot
(lawfully) change the form of government.
 Because the covenant forming the commonwealth results from subjects giving to the
sovereign the right to act for them, the sovereign cannot possibly breach the
covenant; and therefore the subjects can never argue to be freed from the covenant
because of the actions of the sovereign.
 The sovereign exists because the majority has consented to his rule: the minority has
agreed to abide by his arrangement and must then assent to the sovereign’s actions.
 Every subject is author of the acts of the sovereign: hence the sovereign cannot
injure any of his subjects and cannot be accused of injustice.
 Following this, the sovereign cannot justly be put to death by the subjects.
 Because the purpose of the commonwealth is peace, and the sovereign have the right
to do whatever he think necessary for the presentation of peace and security and
prevention of discord. Therefore, the sovereign may judge what opinions and
doctrines are averse. Who shall be allowed to speak to multitudes, and who shall
examine the doctrine of all books before they are published.
 To prescribe the rules of civil law and property.
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 To be judge in all cases.

 To make war and peace as he sees fit and to command the army.
 To choose counselors, ministers, magistrates and officers,
 To reward with riches and honour or to punish with corporal or pecuniary
punishment or ignominy.
 To establish laws about honour and scale of worth.
**Hobbes explicitly rejects the idea of Separation of Powers, in particular the form that
would later become the separation of power under United States Constitution.
TRANSFER OF POWER
 He was against civil disobedience as it could revert the situation to state of nature.
 To him, absolute monarchy through tended to be arbitrary or tyrannical was a best
option to anarchy.
 Sovereign power of the King (though derived from the people) is absolute (not
subject to review by the subjects or ecclesiastical powers).
 The subjects have the right to resist the sovereign when the sovereign threatens the
subject with serious harm. Therefore, if the sovereign can no longer offer protection
to the subject, then the obligation of obedience cases.
 Any order or any guarantees of minimal peace and stability must be preferred do
matter the character of its sovereign.
 However, where resistance was successful, the sovereign cease to govern, thus the
subjects could transfer their obedience to a new ruler.
3. JOHN LOCKE (1632-1704)
He was an Englishman schooled at Oxford University and physician. He lived during the
era of repression, Rebellion and civil war. He was an opponent of Hobbes’ ideas especially,
absolutism.
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Locke authored “the two Treaties of the Government” (1689). He is labeled as “a reluctant
democrat” and “individualist”.
HIS MAIN IDEAS
LAW OF NATURE
 Stands as an eternal rule to all men, legislators and others.
 Rules enacted must be conformable to law of nature.
STATE OF NATURE
 It was paradise. All were equal and independent but they lacked organization.
 It was a state of peace, good will and mutual assistance.
 All men were created equal in the state of nature by God. People were under n
obligation to obey one another. Again, people did not ask for permission to act or
depend on the will of others to arrange matters on behalf. Thus, it was a state of
anarchy (lawlessness), characterized by war of everyman against everyman. Thus,
civil society emerged for the protection of property (i.e. life, liberty and estate).
 Majority vested their powers in a government commonwealth.
 Legitimate governments are those that have the consent of the people (foundation of
government lies in consent). Thus, a ruler without such consent or who acts against
interest of the people can be legitimacy overthrown (i.e. the right of revolution
safeguard against tyranny).
 Used social contract to justify government by majority which held the power I trust.
With the duty to preserve individual rights whose protection was entrusted to them
by individuals.
CIVILSOCIETY/THESTATE
 Government in morally obliged to serve people by protecting life, liberty and
property.
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 Favored representative government, rule of law and inviolable freedom under the
law.
 Denounced tyranny and that when government violates individuals’ rights (i.e.
slavery, servitude, arbitrary powers, property appropriations) people may
legitimately rebel against it. The law of nature forbids reducing one’s fellow to a
state of desperation.
 Men uniting into commonwealths and putting themselves under government is for
the sake of protection their property.
 No taxes on properties of the people without consent of the people (no taxes
without representation)
 No government can be justified by an appeal to the divine rights of the King. He
opposed the increasing powers of the King, argued that the country was headed for
a condition of slavery.
 He also argued against religious persecutions, which had the impact of hindering
commercial and industrial expansion.
HUMAN RIGHTS
 Placed an individual in the centre and invested him with inalienable natural rights.
 Individuals had a natural inborn right to life, liberty and estate. He paid chief
attention to the property rights.
 That private property is absolutely essential for liberty.
3. JEAN-JACQUES ROUSSEAU (1712-1788)

French philosopher who authored the Social Contract (Du contract social) 1762. He
was concerned with setting up of apolitical community/civil society. He is labeled as
“extreme democrat” “utilitarian” and “the father of true democracy”
HIS MAIN IDEAS
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LAW OF NATURE
 Law is the expression of the general will/common interests of the common. In
other words he meant that law is resolution of the whole people for the whole
people, touching a matter that concerns all.
 Enactment of the government is merely corollary of the general will.
 The law representing the general will cannot be unjust because nobody is unjust
to himself.
 Nobody in the state is above the law as everybody is a member of the sovereign
body which is the source o flaw.
 People is obeying the law, would be obeying themselves/law is the product of the
society.
 Sovereign have no power other than the legislative power, it acts only by means
of the laws. The sovereign cannot act, save when the people are assembled.
 Law and political order/structure are not natural but are human’s creations.
Thus, law and political order are legitimate only to the extent that they meet the
general interest or will, this is because law and political structure maybe changed
by citizen through elections or violence.
NATURAL MAN THEORY/STATE OF NATURE
 Human beings were essentially good and equal in the state of nature.
 Reason did not guide actions of individuals (individuals were moved by
emotions)
 Every individual had unlimited liberty
 No private property, no competition and no jealousy
 Knew neither right/virtue/good or nor wrong/vices/bad.
SOCIAL CONTRACT
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 The problem associated with the state of nature was solved through social contract.
 People entered into a social contract among themselves, establishing government
and educational systems to correct the inequalities brought about by the rise of
civilization. In the civil society, man gives himself and all his goods to the
community to gain civil rights in return for accepting obligation to respect and
defend the rights of others.
 To him, liberty was possible in civil society only where was direct rule by the
peoples as a whole in law making, where popular sovereignty was indivisible and
inalienable.
 Under social contract, everyone surrendered to the community all hid rights and the
result was that the community becomes the sovereign.
CIVIL SOCIETY
 Civil societies emerged after the state was corrupted by the introduction of private
property, agriculture, increase of population, discovery of metallurgy,
development of science and commerce.
 Lives become intolerable; there were wars and murder everywhere.
 Human development and inequalities needed human cooperation in a form of
civil society. He argued further that “the first man who after enclosing a plot of
land, saw fit to say “this is mine”, and found people who were simple enough to
believe him, was the true founder of civil society”.
 The society formed association (civil society) which would protect individuals and
properties.
 Simplicity and happiness disappeared; people started thinking in terms of mine
and theirs. Inequalities emerged also; the society was divided into rich (stronger)
and the poor.
THE STATE (SOVEREIGN)
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 Administration is divided into two parts i.e. the sovereign (represent general will
and is the legislative power in the state), and the government (acts only under the
particular will).
 To him, the sovereign is infallible, indivisible, un-represent able and illimitable.
 General will/interest/popular will/collective wills (manifestation of the sovereign and
sprit of citizenship).
 Individuals who refuse to obey general will must be compelled by the state by way
of sanctions.
 State should be small one so that all the people may be able to assemble at one place
and make laws. To him, the large the state, the less the liberty.
 Minority should obey or respect majority will.
 The sovereign must ensure equality of all before law and maintain a rule of justice.
 Individual in the civil society is free because does not surrender his rights to n
outside authority, but to the cooperate body of which himself is a member.
Restrictions on the liberty of individuals are self-imposed.
 By sovereignty (as opposed to Hobbes), he meant the whole community (not
Monarch or head of state).
4. CHARLES DE SECONDAT, BARON DE MONTESQUE (1689-1755)

He is a French jurist (a Judge in French Court), a nobleman and philosopher and
influential political thinker. His masterpiece “the spirit of law” gave his title “father of
constitution” and “balanced democrat”. He wrote extensively, on separation of power and
despotism.
 He sorted the political word into republics, monarchs and despotism. To him,
despotism is a rule in which a single person directs everything by his own will as
caprice, and controls subjects through force and fear.
 Despotic government use law to prevent civil disorder and facilitate the police
function of the state. Again, despotic government concentrates all executive,
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legislative and judicial powers in one person, e.g. the Turkey monarch where all
powers are vested in the Sultan). In the ‘Persian letters’ describes Turkey as a place
where no one laughs.
 Under despotism women become objects of luxury or the living instruments of
men’s felicity.
HIS MAIN IDEAS IN THE BOOK, “SPRIT OF THE LAW (1748)”
 He called England a republic disguised in a form of monarchy (mixed
monarchy).
 Praised England for its freedom (as the nobility, judicial and legislatures
limited the executive power of the monarchy).
 In every government there are three sorts of power i.e. legislature, executive
and judiciary. The executive, makes peace or war, send or receives embassies,
establishes the public security and provides against invasions. The legislature,
prince and magistrate enact temporary or perpetual laws and amend or
abrogate those that have been already enacted. The judiciary, punishes
criminals, or determines the disputes that arise between individuals.
 The political liberty of the subject is a tranquility of mind, arising from the
opinion each person has of his safety.
 He believed the English constitution establishes functional separation
between the legislature, executive and judicial powers. In England, the
monarch exercises executive powers, legislative power are shared by
hereditary nobility and the peoples’ elected representatives, judging powers
vested in persons drawn from the body of the people.
 The state will perish when the legislature power shall be more corrupted than
the executive.
 He argued, if separate powers of government are placed in different hands,
no individual or group of people can monopolize political powers.
 When the legislative and executive powers are united in the same person, or
the same body of magistrates. There can be no liberty.
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 There would be an end of everything where the same man, or the same
body, whether of the nobles or of the people to exercise those three powers
that of enacting laws, that of executing the public resolutions and that of
judging the crimes or differences of individuals.
 Monarch or senate may enact arbitrary laws and execute them tyrannically.
There is no liberty, where it joined with the legislative, the life and liberty of
the subject would be exposed to arbitrary control, for the judge will be the
legislator. Where it joined to the executive power, the judge might behave
with all the violence of an oppressor.
IMPACT OF CLASSICAL PHILOSOPHERS
 Separated law from moral duty by their emphasis on rights rather than on
duties.
 Spurred on the development of modern theories of public international law
and of course international government/organization.
 Inspired legal positivism, utilitarianism thinking and re-emergence of natural
law thinking.
 Inspired totalitarian forms of government through Rousseau’s doctrine of
the general will, and absolutism theory by Hobbes.
 Paved a way for emergence of bourgeoisie constitution.
 They liberated individuals from the ties of feudalism and the church by
discouraging absolutism and religious state.
 Prepared a ground for modern theories of government, for example, the
American Federal Constitution (1787) was drafted on the principle of
“Popular Sovereignty” and the “Separation of Power’s” between government
branches.
 Inspired political revolution in United States and France.
PART TWO: THE BOURGEOISIE CONSTITUTION
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The struggle for power between various classes England i.e. King, Baron, Bourgeoisies
accompanied by writings of philosophers pioneered the emergence of bourgeoisie
constitution. In 1628, Baron Hampden petitioned to the King demanding for the
representation of the people in decision making bodies. In that, there should be no taxes
without representation. It was around this particular time, the parliament started to emerge
as a supreme body. Among other things, the parliament reduced the powers of the King to
impose taxes and it also abolished “executive courts or prerogative courts ’ such as Court of
Star Chamber, the court of high commission and etc. The emerging bourgeoisie class
pushed for the republican constitution. However, The King and powerful feudal nobility
opposed the ideas of republicanism.
THE STRUCTURE OF BOURGEOISE CONSTTITUTION
Essentially, the bourgeoisie constitution emerged in England after the English/Glorious
revolution of 1688. It had the following organs;
THE PARLIAMENT (BECAMERALISM)
 It was created as the main organ of the state (i.e. it was the a sovereign body)
therefore every public act depended on the parliament.
 The parliament had committees like ‘the House of Lords’ (as thee high chamber and
judicial committee) and the House of Commons.
THE EXECUTIVE (WESTMINISTER SYSTEM)

 The King ruled through the Parliament but had no executive powers i.e. ceremonial
leader.
 It was constituted around the prime minister (leader of the majority party in
parliament).
Acts of Settlement, passed after 1688 decreed the judicature to be independent in
determining matters brought before them.
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FEATURES OF BOURGEOISIE CONSTITUTION

 Universal suffrage /enfranchisement (ballot box system).
 Bill of rights(liberty) e.g. Petition of rights, Magna carta, Act of
Settlement(England),Declaration of rights of man and citizen,1789(France),
Declaration of independence(United states).
 Representative democracy/liberalism
 Three organs of the state i.e. distribution of powers (executive, judiciary and
legislature)
 Multilateral imperialism and company’s sovereignty.
 Based on the supremacy/sovereignty of the parliament.
 Competition between political parties in elections (pluralism).In 1661and 1678 the
Cavalier Parliament enabled people of England to form political parties. The pro-
king organs as “Tories” (conservative party), and the anti-king organized as “Whigs”
(democrats) i.e. reforming party which advocated for supremacy of the parliament, it
was succeeded by liberal party in 19th Century.
 Bicameralism (legislative body having two chambers) i.e. upper and lower house
e.g. the Congress (Senate and House of Representative in the USA) or House of
Lords and House of Commons in United Kingdom.
CONSTITUTIONAL PRINCIPLES AND DOCTRINES
Here under, the interest is placed to examine some basic constitutional principles which
have had marked bearing on the nature of administrative law. These are;
(a).The doctrine of Separation of Powers
(b).The doctrine of Parliamentary Supremacy
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(c).The doctrine of Rule of Law

(d).The theory of Independence of Judiciary and
(e).Human Rights or Bill of Rights
1. SEPARATION OF POWERS
The doctrine of separation of powers, as one of the basic constitutional principles, was
initially advocated by a French Philosopher called Montesquieu. Briefly, the doctrine means
that the three branches of government, namely, the Executive, the Legislature, and the
Judiciary must be separated. In the strict interpretation, each organ should perform a
separate function distinct from the other; none should interfere with the functions of any of
the others. And no one should be a member of more than one organ. This means that if
you’re a member of the legislature you should not be member of the executive or Judiciary
and vice versa.
The view of Montesquieu was that; if these powers are unites in one person or body (like it
was the case during feudal era where the King had all the powers) there will be no liberty
because it is feared that the same person or body can make tyrannically to the detriment of
individual rights. The idea was to separate these three powers- the legislative, executive and
adjudicatory powers- to prevent misuse or abuse of powers.
During feudal era it was observed that when the monarch retained all the powers there was
a tendency of becoming autocratic or dictatorial ruler. As the saying goes “Power tends to
Corrupt”.
However, this formulation had its shortcomings. Montesquieu’s elaboration failed to take
into account the fact that it is quite impossible to have total separation of powers. It’s
impossible for every organ to perform its functions alone without assistance from the other
and without supervision by the other. Thus, this doctrine have not been fully accepted and
realized neither in Britain nor the entire Europe or America. For instance, in Britain the
Prime Minister is the part of legislature, just like the case here in Tanzania where members
of the Cabinet are also MPs’ and the President constitutes Part of the parliament.
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Nevertheless, whatever the shortcomings are in doctrine, separation of power has continued
to enjoy recognition all over the world. The value of separation of powers lies on the
emphasis placed upon creating three branches of government and where there shall be
“Checks and balances” among them. This means that, separation of powers act as a check
and balance mechanism between organs of the state, each organ is checking the exercise o
power by the other organ.
For example, the constitution of Tanzania has vested vests the jurisdiction of adjudicating
disputes to the Judiciary. Where an individual is ill-treated by the Executive or even the
legislature he can open the case to the court of law, and the court will settle on whether his
right has been violated or not. If the court finds that there was a violation of right it will
issue an apt remedy. The same applies to the legislature. The Legislature has three roles,
viz. to inquire, to debate and to legislate. In carrying out these functions the legislature is
overseeing the executive branch. That is why all government all government budgets must
be approved by the parliament. And all activities of the government must be scrutinized by
the parliament. Since the executive branch is the one which performs the day-to-day
functions of the state it’s more likely to affect the rights of the people than other organs.
And hence, this organ, in principle does not have a role of supervising or checking other
organs. Nevertheless, the executive seems to be more powerful because it’s composed of the
President, Vice president, Prime Minister as well as the entire Cabinet.
APPLICATION OF THE DOCTRINE OF SEPARATION OF POWERS IN THE UNITED

REPUBLIC OF TANZANIA
The Constitution of United Republic of Tanzania (1977) represents a contemporary
approach in constitutionalsing the doctrine of Separation of Powers. Essentially there is no
strict separation of Powers under the Constitution of Tanzania, both in principle and
practice. In the Constitution of Tanzania, the doctrine of separation of power is enshrined
under article 4 which, inter alia, provides that;
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4.-(1) “All state authority in the Republic shall be exercised and controlled by two organs
vested with executive powers, two organs vested with judicial powers and two organs vested
with legislative and supervisory powers over the conduct of public affairs”.
(2) The organs vested with executive powers shall be the Government of the United
Republic and the Revolutionary Government of Zanzibar; the organs vested with judicial
powers shall be 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 shall be the Parliament of the United Republic and the House of
Representative.
In principle therefore, Article 4 of the Constitution establishes three organs of the state i.e.
executive, legislature and judiciary. In practice though, there is no strict separation of
powers (but rather a mixed from governments with checks and balance) n terms of
functions of each organ and personal conferred with state powers as exemplified below.
 It’s a President (executive) who appoints judges and Justices of Appeal (judiciary)
under Article 109 and 118.
 The President (executive) is also allowed to appoint a certain number of members of
the national assembly (legislature) under [Article 66(1) (e)].
 The legislature do adjudicate in certain cases under administrative tribunal’s e.g.
Military Tribunal (Court Martial), The Revenue Appeals Board, The Fair
Competition Tribunal and the District Land and Housing Tribunal.
 Judges in practice do make laws under the doctrine of Precedent. The Chief Justice
is allowed to make rules, e.g. Court of Appeal rules (2009) made under the
Appellate Jurisdiction Act (RE: 2002, Cap.141).
 The Court can nullify Acts of parliament under Article 64(5).
 Members of the Executive such as President, Ministers, Directors and e.t.c., are
allowed to make subsidiary legislation as per Article 97 (5).
 The President is the part of Parliament (but not a member of the National
Assembly) as per Article 62(2).
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 Ministers (part of executive) initiate Bills and the President assent to bills into law or
may veto the same under [Article 97(1) (2)].
 Ministers (Cabinet members) are also part of the National Assembly under Article
55(4).
 The Attorney General (executive) is also a member of the National Assembly under
[Article 66(1) (d)].
 President has the power to dissolve the National Assembly [Article 97(4)], likewise
the National Assembly can impeach the President, Vice President and Prime
Minister under Article [38(2) (d), 46A, 50(3) and 53A].
 Some members of the National Assembly may also hold posts in the executive such
as District and Regional Commissioners (see, Article 66(3).
 A Judge (judiciary) can also be appointed as an Attorney General (the case of Judge
Frederick Mwita Werema) who saved as part of executive from 2009-2014.
All in all, the Court of Appeal of Tanzania has also asserted affirmatively the doctrine of
separation of Powers in its various judgments. For stance, in DPP v. Daudi Pete [1993]
TLR 22 (CA), a case which was concerned with restrictions imposed by Section 148(5)(e) of
the Criminal Procedure Act, 1985(on bail), Nyalali CJ refuted arguments made by
Mwalusanya J (High Court), thus laid down circumstances under which the doctrine of
separation of powers can be said to have been violated as follows;
“In our view, the Doctrine of Separation of Powers can be said to be infringed when either
Executive o the Legislature takes over the function of the Judicature involving the
interpretation of the laws and the adjudication of rights and duties in disputes either
between individual persons or between the state and individual persons.”
Again, in Attorney General v. Lohay Akonaay and Joseph Lohay [1995] TLR 80 (CA),
Nyalali CJ (as then he was) reiterated his position in Daudi Pete’s case and noted as
follows(in relation to the encroachment of the Judiciary’s power by the Executive);
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“It is the basic structure of a democratic constitution that state power is divided and
distributed between three state pillars. These are the Executive, vested with the executive
power; the Legislature vested with legislative power, and the Judicature vested with judicial
powers. This is clearly so started under Article 4 of the Constitution. This basic structure is
essential to any democratic constitution and cannot be changed or abridged while retaining
the democratic nature of the constitution. It follows therefore that wherever the
Constitution establishes or permits the establishment of any other institution or body with
executive or legislature or judicial power , such institution or body is meant to function
not in lieu of or in derogation of these three central pillars of the state, but only in aid of
and subordinate to those pillars. It follows therefore that since our Constitution is
democratic; any purported ouster of jurisdiction of the ordinary courts to deal with any
justiciable dispute is Unconstitutional”
Recently, the Court of Appeal (under Ramadhan, CJ) in A.G. V. Rev. Christopher Mtikila
[Civil Appeal No. 45 of 2009] reaffirmed the doctrine (though not so expressly) by
restricting the role of the Court to that of adjudicating (and not legislating). The Court
argued that;
“…. The issue of independent candidates has to be settled by parliament which has the
jurisdiction to amend the constitution and not the Courts which, as we have found, do not
have that jurisdiction.”
THE APPLICATION OF THE DOCTRINE IN OTHER COUNTRIES

Various scholarly works reveals that, there is no county in the World which has succeed to
implement Montesquieu’s ideas of absolute or strict separation of powers to the fully. Some
scholars claim rightly that even Montesquieu’s mother land i.e. France has failed to adhere
to the doctrine strictly. However, a cross-section of constitutional jurists worldwide agrees
in principle that, Somehow the framers of the Constitution of the United States adopted
and expanded the doctrine of Separation of Power. For instance, in the US Constitution
{Article I(1),II(1) and III(1);
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 The three organs of Government are both Separated

 Each organ has Separate personnel and there are separate elections for executive and
legislature; and
 Each organ has specific powers and some form of veto over the other. The power of
one organ to intervene in another through veto, ratification of appointments,
impeachment, judicial review of legislation by the Supreme Court.
 Through the US Constitution presents the practice with regard to the application of
the doctrine, to a certain extent, the same have been violated, the good example is
when the Supreme Court interfered and resolved the dispute between Al Gore and
George W. Bush with regard to the 2000 Presidential election.
 Apart from the US, the Constitutional practices in other part of the world bring an
impression that the doctrine is not strictly followed. For instance, under Article 86 of
the Constitution of South Africa (1996), the executive President is elected by the
National Assembly. On the other hand, Kenya has a parliamentary system, where
the president is both the head of State and Government, and also an elected
Member of Parliament.
Hence, this principle of Separation of power is, therefore, very important and suited well to
prevent abuse of powers by one organ of the state, and thus capable of preventing civil and
political liberty of people which was certainly lacking in the absolutist systems, wherein all
three functions- Legislature, Executive and Adjudicative, were discharged by the same
person or body.
Powers which have been vested to those three organs of the state shown under Article 33-
61 for Executive; Articles 62-101 for Parliament and Articles 108-124 for Judiciary.
2. RULE OF LAW
The doctrine of the rule of law was formulated by a French jurist Albert Venn Dicey.
The rule of law is a principle which demands that all conducts of the state, including
those which affect the rights and freedom of individual in the civil society should
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conform strictly to the law, procedure and limitations prescribed by law. In other words,
before the government can take any action it must make sure that it has the mandate
and power of doing so under the law. First, he strongly advocated for absolute
supremacy or predominance of regular law which authorizes such action it is
important to enact one. Dicey provided basically, two requirements of the rule of law.
First he strongly advocated for absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary powers and discretion.
This first principle implies that those who manipulate or exercise the powers of the state
should not rule by personal whims but by Law. The source of authority or powers
should be the law. This principle also incorporates the rule that o body should suffer
punishment except by breach of law which is known before an act is criminalized. Thus
the state should not enact penal laws with retrospective effect. This means that what is
not an offence today should not be criminalized tomorrow. The law which criminalizes
an act should be in place when the crime is committed. That means, it should not be
introduced thereafter and be used on the past crime. An example of law with
retrospective effect in Tanzania was “The Economic Sabotage (special provisions) Act,
which criminalized those persons who acquired wealth legally in the past to be
economic saboteurs (Wahujumi Uchumi) when the law was enacted.
The second requirement or basic principle of rule of law, Dicey stared, is Equality
before the Law. This means that all classes of people without regard to their colour,
nationality, status, religious or political preference or any other reasons should be
treated equally by the law and before the Court of law. There should not be special
Courts for only certain classes of people administering separate and different type of
justice in the same state.
It’s now widely accepted that the rule of law is the cornerstone of the modern
democratic states. Various and modern democratic states various and modern
interpretations have been given the rule of law. Professor Issa Gulamhussein Shivji, for
instance, states that the rule of law is the exercise of state power in the way that it is
neither arbitrary nor widely discretionary or exercised expediently, but rather, state
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power is exercised in accordance with consensually arrived at principles and procedures,

which are known in advance and that there are built in institutional mechanism to
question and seek remedies for breach of the said principles and procedures.
Professor Wade of United Kingdom says that the government under the rule of law
demands proper legal limits on the exercise of power. This does not mean purely that,
acts of authority must be justified by the law but the law in which those acts are
exercised must be just to prevent dictatorship. In other words Prof. Wade says that, it is
not enough for the government conduct to be authorized by the law. Rather, the law
themselves must be just law which have regard to fundamental principles of human
rights.
It can be concluded by saying that, the rule of law is a composite concept which ensure
that the power of public authority are exercised within certain legal limits which must
be consistent with certain principles, such as observation of human rights.
4. INDEPENDENCE OF JUDICIARY
Judiciary is among of the three branches of the state. Arguably, this organ is very important
of all with regard to justice because it’s the organ with which individual or group rights are
preserved, guaranteed, and protected. In recognition of this mandate, Article 107A (1) of
the Tanzanian Constitution, enacts as follows;
“The Judiciary shall be the Authority with final decision in dispensation of justice in the
United Republic of Tanzania.” Now to comprehend the rule of law independence of
judiciary is very essential.
Thus, the doctrine of independence of Judiciary means the judiciary must be free from
dependence, subjection or control from other state organs or other person. It must be able
to adjudicate disputes without fear or favour. The independence of judiciary is necessary in
holding fair application of law regardless of who is before the Court. In other words, the
court should not be expected to give preferential treatment to any person who summoned
by court of law; even if one of the parties is the state.
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Describing the independence of judiciary, the retired Judge Chipeta in the case of R v. Idd
Mtegule [1979] TLR started the following;
“The judiciary is supposed to be an independent institution in the sense that those who are
entrusted by the Constitution to decide the rights and liabilities or the guilty or the
innocent of people must be free from all kinds of pressures regardless of the corners from
which those pressures come. The judiciary must be free from political, executive or
emotional pressure if it’s going to work with the smoothness and integrity expected of it
under the supreme law of the land (the Constitution). It must not be subjected or succumb
to intimidation of any kind.”
However, to say that the Judiciary is independent is one thing and to realize it is another
thing altogether. Now do we realize that the judiciary is free and independent? There are
four (4) dimensions or factors which are very important to be guaranteed by the law to
ensure that the judiciary is free and independent. These factors are;
 Security of tenure of the judicial officers.
 Separation of judicial power and personnel from the executive and legislative
branches.
 Security of emoluments and/or remuneration.
 Judicial immunity from criminal and civil litigation against them.
A.SECURITY OF TENURE
In the first place the state should guarantee by entrenched clauses in the Constitution or
other law the tenure of judges and magistrates. Judges should not be easily removed from
their offices except for very strong reasons and after a due process of law. Tanzania has
done so by ensuring that Judges, one’s appointed by president cannot be fired easily. The
relevant Articles in the Constitution are 110A and 120A (as amended by 14th Constitutional
amendment of 2004). These articles make several provisions for the purpose of securing the
tenure of Judges of the High court and Justices of the Court of Appeal. Articles 110A(2)
and 120A(2) provide that a judge of High Court or Justice of the Court of Appeal
respectively may be removed from office only for;
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 Inability to perform the functions of his office due to illness or any other reason.
 For misbehavior inconsistent with the ethics of office of a judge or with the law
concerning the ethics of public leaders. And even where any of the above reasons
comes to play a judge or Justice cannot be removed from his office until the
following procedures, which are found under article 110A (3) (4), are followed. That
is to say: If the President considers that the question of the removal of the judge
from the needs to be investigated;…
(a).The President shall, after consultation with the Chief Justice, suspend that Judge from
the office.
(b).The President shall appoint a Tribunal which shall consist of Chairman and not less
than two other members. The chairman and with at least half of other members of the
special Tribunal must be persons who are judges of the High Court or Justices of Appeal in
any Country within the Commonwealth.
(c). The Tribunal shall investigate the matter and make a report to the President, advising
on the whole matter, and shall advise him whether or not the Judge concerned should be
removed from the office in accordance with the provisions of this article on the grounds of
inability to perform his functions due to illness or any other reason or on grounds of
misbehavior.
(d). The commission/Tribunal appointed in accordance with the provisions of sub article
(3) advises the President, then the President shall remove that judge from office.
This is the only process by which a judge can be removed from his office by the president.
Otherwise a President cannot decide to remove a Judge from his office for any other
reasons, even if the judge in question makes a decision which does not gratify the
government
Another way is to wait until a Judge reaches his/her retirement age. According to the
Constitution of Tanzania the retirement age for a High Court Judge is 60yeas. However,
the Judge can opt for to retirement voluntarily at 55years of age; unless the President
directs him (the Judge) should not retire.
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If the President so directs the concerned judge shall not have the right to retire until the
expiration of the term- period specified by the President. Likewise, if a judge has attained
his/her retirement age of 60 but the President considers that it is in the public interest that
such judge should continue in office, and that judge agrees in writing to continue working,
then the President may direct that Judge continue working for any period specified by the
President (Article 110).
With regards to justices of the Court of Appeal, the retirement age is 65 years, but can elect
to voluntarily retire at age 60. However, the same discretion given to the President with
regard to High Court Judges applies to the Court of Appeal as well as (Article 120).
Although it appears that the President can exercise this discretion himself, in actual fact he
is likely to be advised to do so by the Chief Justice.
Unlike judges there is no law which Cleary secures the office of a Magistrate. This,
however, does not mean that a magistrate can recklessly be removed from his office. The
Constitution establishes a body which is called the Judicial Service Commission, which is
composed of six figures including, the chief Justice; the Attorney General; one Justice of the
Court of Court of Appeal who shall be appointed by the President after consultation with
the chief Justice; the principle Judge and two other members who shall be appointed by the
President. This body of persons is empowered by the Constitution and the law.
To recruit magistrates, to confirm their appointment, to promote them, to take disciplinary
majors against them, and to remove from office. Thus, in case the commission receives
complaints against a magistrate it can investigate and scrutinize such complaints and take
appropriate measures (see Article 112 of the Constitution and section 2 of the Judicial
Services Act, 2005). In investigating and conducting inquiry into complaints made against
magistrates the commission is usually assisted by the Regional or District Judicial
Committees.
B.SEPARATION OF JUDICIARY AND ITS PERSONNEL FROM OTHER ORGANS
The second element of independence of Judiciary is Separation of judicial power and
personnel from other organs. Non-partnership on the part of the judiciary in adjudication
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of disputes is very important. The role of the Judiciary, among others things, is to ensure
that the executive or the Parliament does not exceed its power by doing that which the does
not allow or by failure to follow laid down procedures.
To ensure that this is done, judicial power and personnel should be separated from other
organs of the state. This is further reinforced by Article 113A of the Constitution which
Prohibits judges, magistrates and judicial officers such as Court registrars from joining any
political party. This is meant to prevent judges and magistrates to compromise the interests
of their political parties and that of individual’s litigants coming to Court.
C.SECURITY OF EMOLUMENTS OR REMUNERATION
Like security of tenure and separation from other organs, personal emoluments and
remuneration of the judges and magistrates must be secured. Threat of reduction of salaries
and other benefits may make the judges subjective to the wish of the one who control their
salaries. To overcome this danger the Constitution guarantees payment of judges by
charging their salaries and allowances to the Special consolidated Fund of the Government
under Article 142(5). This means, the salaries and pensions of judges are not dependent on
annual parliamentary debates and appropriations. However, this is not the case with the
magistrates. They are treated like other civil servants.
D.JUDICIAL IMMUNITY
Judges and magistrates have immunity and privileges from being prosecuted or sued for
civil liabilities for anything said, done or omitted to be done in good faith in the exercise of
their judicial function. The immunity is essential to enable a judge or magistrate to
administer justice without fear or favour. No criminal prosecution or action should
therefore, lie against a judge or magistrate in respect of anything he/she does while was
honestly performing his judicial function, even if it appears later that his/her act or
omission was improper.
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The United Nations has taken a positive action to ensure the independence of judiciary
anywhere in the world, by passing what are called Basic Principles on the Independence of
the Judiciary. For purpose of clarity we reproduce those principles as follows;
BASIC PRINCIPLES ON THE INDEPENDENCE OF THE JUDICIARY ADOPTED BY
THE SEVENTH UNITED NATIONS CONGRESS ON THE PREVENTION OF CRIIME
AND THE TREATMENT OF OFFENDERS HELD AT MIILAN FROM 26 TH AUGUST
TO 6TH SEPTEMBER 1985 AND ENDORSED BY GENERAL ASSEMBLY
RESOLUTIONS 40/32 OF 29TH NOVEMBER 1985 AND 40/146 0F13TH DECEMBER
1985.
Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia,
their determination to establish conditions under which justice can be maintained to
achieve international co-operation in promoting and encouraging respect for human rights
and fundamental freedoms without any discrimination.
Whereas the Universal Declaration of Human Rights enshrines in particular the principle
of equality before the law, of the presumption of innocence and of the right to a fair and
public hearing by a competent, independent and impartial tribunal established by law.
Whereas the international Covenants on Economic, Social and Cultural Rights and on Civil
and Political Rights both guarantee the exercise of those rights, and in addition, the
Covenant on Civil and Political Rights further guarantees the right to be tried without
undue delay.
Whereas frequently there still exists a gap between the vision underlying those principles
and the actual situation,
Whereas the organization and administration of justice in every country should be inspired
by those principles, and efforts should be undertaken to translate them fully into reality.
Whereas rules concerning the exercise of judicial office should aim at enabling judges to act
in accordance with those principles, Whereas Judges are charged with the ultimate decision
over life, freedom, rights, duties and property of Citizens,
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Whereas the Sixth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, by its resolution 16, called upon the Committee on Crime
prevention and Control to include among its priorities the elaboration of guidelines relating
to the independence of judges and the selection, professional training and status of Judges
and prosecutors.
Whereas it is, therefore appropriate that consideration be first give to the role of judges in
relation to the system of justice and to the importance of their selection, training and
conduct,
The following basic principles, formulated to assist Member States in their task of securing
and promoting the independence of the judiciary should be taken into account and
respected by the Governments within the framework of their national legislation and
practice and be brought to the attention of judges, lawyers, members of the executive and
the legislature and the public in general. The principles have been formulated principally
with professional judges in mind, but they apply equally, as appropriate to lay judges,
where they exist.
INDEPENDENCE OF JUDICIARY
1. The independence of the judiciary shall be guaranteed by the state and enshrined in
the Constitution or the law of the Country. It is the duty of all governmental and
other institutions to respect and observe the independence of the judiciary.
2. The Judiciary shall decide matters be free them impartially, on the basis of facts and
in accordance with the law, without any restrictions, improper influences,
inducements, pressures, threats or interferences, direct or indirect, from any quarter
or for any reasons.
3. The judiciary shall have the jurisdiction over all issues of a judicial nature and shall
have exclusive authority to decide whether an issue submitted for its decision is
within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial
process, nor shall judicial decisions by the courts be subject to revision. This
principle is without prejudice to judicial review or to mitigation or commutation by
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competent authorities of sentences imposed by the judiciary, in accordance with the

law.
5. Every one shall have the right to be tried by ordinary court or tribunals using
established legal procedures. Tribunals that do not use the duly established
procedures of the legal process shall not be created to displace the jurisdiction
belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of judiciary entitles and requires the judiciary to
ensure that judicial proceedings are conducted fairly and that the rights of the
parties are respected.
7. It’s the duty of each Member State to provide adequate resources to enable the
judiciary to properly perform its functions.
FREEDOM OF EXPRRESSION
8. In accordance with the Universal Declaration of Human Rights, members of the
judiciary are like other citizens entitled to freedom of expression, belief, association
and assembly; provided, However, that in exercising such rights, judges shall always
conduct themselves in such a manner as to preserve the dignity of their office and
the impartiality and independence of the judiciary.
9. Judges shall be free to form and join associations of judges or other organizations to
represent their interests. To promote their professional training and protect their
judicial independence.
QUALIFICATIONS, SELECTION AND TRAINING

10. Persons selected for judicial officer shall be individuals of integrity ability with
appropriate training or qualifications in law. Any method of judicial selection shall
safeguard against judicial appointments for improper motives. In the selection of
judges, there shall be no discrimination against a person on the grounds of race,
colour, sex, religion, political or other opinion, national or social origin, property
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,birth or status , except that a requirement, that a candidate for judicial office must
be a national of the country concerned, shall not be considered discriminatory.
CONDITIONS OF SERVICES AND TENURE
11. The term of office of judges, their independence, security, adequate remuneration,
and conditions of services, pensions and the age of retirement shall be adequately
secured by law.
12. Judges, whether appointed or elected, shall have guaranteed tenure until a
mandatory retirement age or the expiry of their term of office, where such exists.
13. Promotion of Judges wherever such a system exists, should be based on objective
factors, in particular ability, integrity and experience.
14. The assignment of cases to judges within the court to which they belong is an
internal matter of judicial administration.
PROFESSIONAL SECRECY AND IMMUNITY

15. The judiciary shall be bound by professional secrecy with regard to their
deliberations and to confidential information acquired in the course of their duties
other than in public proceedings, and shall not be compelled to testify on such
matters.
16. Without prejudice to any disciplinary procedure or to any right of appeal or to
compensation from the State. In accordance with national law, judges should enjoy
personal immunity from civil suits from monetary damages for improper acts or
omissions in the exercise of their judicial functions.
DISCIPLINE, SUSPENSION AND REMOVAL

17. A charge or complaint made against a judge n his/her judicial and professional
capacity shall be processed expeditiously and fairly under an appropriate procedure.
The judge shall have the right to a fair hearing. The examination of the matter at its
initial stage shall be kept confidential, unless otherwise requested by the judge.
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18. Judges shall be subjected to suspension or removal only for reasons of incapacity or
behavior that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in
accordance with established standards of judicial conducts.
20. Decisions in disciplinary suspension or removal proceedings should be subjected to
an independent review. This principle may not apply to the decisions of the highest
court and those of the legislature in impeachment or similar proceedings.
5. PARLIAMENTARY SUPREMACY
The concept of parliamentary sovereignty, parliamentary supremacy, or legislative
supremacy is a concept in constitutional law that applies to some parliamentary
democracies. Under parliamentary sovereignty, a legislative body (the Parliament) has
absolute sovereignty, meaning it is supreme to all other government institutions
(including any executive or judicial bodies as they may exist). Furthermore, it implies
that the legislative body may change or repeal any prior legislative acts.
Parliamentary sovereignty is contrasted with notions of judicial review, where a court
may overturn legislation deemed unconstitutional since it has power to do so under the
Constitution. In this respect the supremacy is not that of the parliament but the
constitution. Specific instances of Parliamentary sovereignty exist in the United
Kingdom, Israel and New Zealand.
The origins of the principle of parliamentary sovereignty are controversial. Some claim
that in England it originated in the early 16 th Century, when the parliament asserted the
supremacy of the statute over the Church. Others argue that it originated in the 17 th
and 18th centuries when the parliament asserted the right to name and depose a
monarch.
Another classic exposition was that of Albert Dicey, in his book “Introduction to the
Study of law of the Constitution (1885). Dicey said; inter alia that:
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“Parliament….has….the right to make or unmake any law whatever and further, that no
person or body is recognized by the law of England and having a right to override or set
aside the legislation of Parliament.”
The doctrine of Parliamentary supremacy, as put forward by Dicey, may be summarized
in the following three points;
 Parliament can make law concerning anything.
 No Parliament can bind a future parliament (that it is, it cannot pass a law that
cannot be changed or reversed by the future Parliament).
 A valid Act of Parliament cannot be questioned by the Court.
In England after the Act of Union of 1707, there was some ambiguity about whether the
principle applied in Scotland. It has been suggested that, prior to the union, Parliamentary
sovereignty was a principle only of English law. Since the Act of union guaranteed the
continuity of the Scottish legal system, some members of the Scottish judicial maintained
the right in theory to rule an Act of Parliament inadmissible. One clear statement of this
from the year 1953 was in Lord Cooper’s judgment in the case MacCormick v.Lord
Advocate. The issue has never been tested, as no Scottish Court since 1707 has actual
attempted to make such a ruling. It is now clear that the Pre-Union Scottish Parliament was
sovereign: see Julian Goodare, “The government of Scotland 1560-1625” (OUP, 2004), esp.
ch.1, confirming Jeffrey Goldsworthy, “The sovereignty of Parliament, History and
Philosophy” (OUP, 1999), 165-69.
The doctrine of parliamentary supremacy was upheld by Lord Reid in Madzimbamuto v.
Lardner-Barke, in the following words:
It’s often said that it would be unconstitutional for United Kingdom Parliament to do
certain things, meaning that the moral, political and other reasons against doing them are
so strong that most people would regard it as highly improper if Parliament did these
things. But that does not mean that it’s beyond the power of Parliament to do such things.
If Parliament chooses to do any of them the courts would not hold the Act of Parliament
invalid.
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Government sought to pass the Asylum and Immigration (Treatment of Claimants) Act.
The Bill contained a comprehensive “ouster clause”, which have excluded judicial review of
decisions on applications for asylum. These was uproar among judges and lawyers, and the
Lord Chief Justice, Lord Woolf, went so far as to suggest that if the clause were to become
law, the Courts would simply refuse to apply it. With a constitutional crisis looming, the
government backed down, and the clause become a law in a much-diluted form.
The doctrine of parliamentary sovereignty prevents judicial review of primary legislation
passed by the Parliament. However, in the late 20 th and early 21st centuries, the idea of
Parliamentary supremacy underwent erosion in practice from four directions in the United
Kingdom:
 First, the devolution of power to regional assemblies in Scotland (Scottish
Parliament), Wales (Welsh Assembly), and Northern Ireland (Northern Ireland
Assembly). The Scottish Parliament and Northern Ireland Assembly are both able
to pass primary legislation within the areas that have been devolved to the. As the
systems remains devolved and not federal, the powers of these assemblies stem from
the UK Parliament and can be suspended, as has happened with the Northern Irish
case. However, this seems unlikely to happen in Scotland or Wales; as such a
decision would (currently) be highly unpopular with the electorate in both places.
 Secondly, the institutions of the European Union, in particular the European Court
of Justice (ECJ) which asserts the power to exercise judicial review over UK law. In
this situation, an adverse finding by the ECJ thin that a UK law is inconsistent with
the EC Treaties automatically annuals the law, since the European Communities
Act 1972 (“ECA”) provides that European Community law is supreme in the
United Kingdom. The first example of this, in relation to a statute, the Merchant
Shipping Act1988 was the Factortame case. The ECA has been thought of as a
‘constitutional statute’. In the case of Thoburn v. Sunderland City Council the
Weights and Measures Act 1985 was held not to implicitly repeal the ECA. This has
been argued to compromise the effect of parliamentary sovereignty, as the ECA
must be expressly repealed in order to be negated by subsequent incompatible
legislation.
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 Thirdly, the European Convention on Human Rights and the incorporation by the
Human Rights Act 1998 of the European Convention a finding of a breach of
Convention rights by the European Court of Human Rights (ECHR) does not
automatically annual the law: in practice, the governmental is bound to implement
the ECHR’s decisions. The Human Rights Act includes a mechanism under which
British Courts can declare Act of Parliament to be in violation of the Convention by
making a declaration of incompatibility. This power, like that of the ECHR, does
not automatically annual the law.
Where a declaration of incompatibility has been made, the Government is able to

use an accelerated procedure to enact a bill to repeal the offending law.
 Finally, the increasing use of referendums. In reality, a referendum means that the
decision whether to pass law is made by the electorate, not Parliament. In the final
analysis, parliament could still reverse a decision made by referendum, but this
seems unlikely ever to happen.
However, in each case, the laws have been structured in U.K so that there is no theoretical
erosion of Parliamentary supremacy. Parliament has the power to abolish or overrule any of
the devolved legislatures at its pleasure, although it would be unlikely to do so. The
European and British Courts have the authority to declare incompatibility or to annual a
law only because of an Act of Parliament, the European Communities Act 1972 which can
be repealed by Parliament. Thus, Parliament theoretically remains (almost) entire
sovereign. The qualifier “almost” is provided because in the 1921, after a century of
dispute, Parliament passed the Church of Scotland Act 1921 which finally agreed that it
does not have sovereignty over the church of Scotland, the establishes church in Scotland.
There is a concept in political science of legal and political sovereignty. it can be argued
that legal sovereignty has not been lost because parliament still retains all its theoretical
powers. There are no legal limits on Parliament’s sovereignty. However, as it highly
unlikely that the UK would repeal the European Communities Act and leave the EU, and
it’s unlikely the developed legislature would be abolished, there are significant political
limits on the sovereignty of Parliament.
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Nevertheless, it remains the case that the UK Parliament could do so without seeking the
mutual consent of the EU or the developed legislatures, as it did with the abolition of the
Parliament on Northern Ireland in 1972, and that if it did, these repeals would be legally
and politically binding
Notwithstanding the above observation, in reality the British Parliament cannot still claim
to be sovereign because of these internal and external limitations.
The doctrine of Parliamentary supremacy in East African countries was adopted from
England through the package of independence Constitutions. Parliaments of our respective
countries were supposed to be supreme. This principle stems from the people. The
parliament is regarded as representing the wish of the people. The parliament is responsible
to sanction actions of the executive. However, as far as legislative power is concerned the
Parliament of Tanzania, for example, cannot claim to be supreme as of U.K. This is due to
the fact that the country has a written constitution which itself is a limitation, in the sense
that no law can be enacted which contravenes the Constitution.
Thus, the parliament cannot legislate on anything against the provisions of the constitution,
and if it does so the likelihood of that law being declared unconstitutional by the High
Court is high if someone challenges it before the Court. Examples abound where some
pieces of legislation or some provisions of the statutes have been declared unconstitutional.
Another limitation is that the executive branch retains too much power. The biggest
problem, for example which inhibit parliament to be powerfully is that most African
countries are not self-reliant in their budgets. Hence, it is the executive branch which seeks
external aid and support from donor countries and international organizations. This, in
practice, limits the power of the parliament in critically questioning expenditure of the
government the way it is expected to do. With external funded budget the parliament
sometime becomes ill equipped to hold the executive to their toes.
Arguably, it can still be said that manifestation of the principle of parliamentary supremacy
in terms of holding the government accountable can be found in another principle called
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ministerial responsibility. The present constitutional set-up of the country tries to retain the
power of the Parliament to:
 Sanction the actions of the government.
 Move a motion to pass a vote of no confidence to the Prime Minister.
 Impeach the President. With these powers the Executive is required to be
responsible to the Parliament.
6. MINISTERIAL RESPONSIBILITY
Ministerial responsibility is general said to be the principle of responsible government.
Responsible government is that one which is accountable to the people who actually put
that government into power by way of election. This responsibility is made or seen through
people’s representative (i.e. the Parliament). The government is, therefore, held responsible
or accountable for its actions by the National Assembly.
Ministerial responsibility or Individual ministerial responsibility is a constitutional
convention in governments using the Westminster System that a cabinet minister bears the
ultimate responsibility for the actions of their ministry or department. Individual’s
ministerial responsibility is not the same as cabinet collective responsibility, which states
members of the cabinet must approve publicly of its collective decisions or resign.
The crucial question is how to ensure the government is responsible to the National
Assembly. The government (Executive) is held accountable in the following way;
 Its actions must be subjected to the approval of the National Assembly, either
directly or indirectly- like direct approval of government budget during budget
sessions, approval of bills for enactment of certain laws; or asserting to treaties
signed by the Executive.
 The national Assembly also calls upon the executive to account for its actions by
members of Parliament asking questions to ministers to account for anything
happened in their ministries.
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The principle of ministerial responsibility is divided into two categories; namely; collective
responsibility and individual responsibly.
(a). COLLECTIVE RESPONSIBILITY
Collective responsibility means that all ministers (i.e. Members of the Cabinet) must be
collectively responsible to the National Assembly. Article 53(2) of the Constitution of
Tanzania, for example, states that;
“………Ministers under the leadership of the Prime Minister shall be collectively responsible
in the National Assembly for the execution of the affairs of the Government of the United
Republic.”
This means that Ministers must form a united front in defense of actions taken by the
Government. Once a decision has been passed by the all Cabinet al ministers should defend
that decision. This is done so by the Cabinet to present itself as a united body before the
National Assembly. Where a Minster does not agree with the stand of the Cabinet and feel
that he cannot defend it, he is to resign or else he can be sacked from his position.
Examples in Tanzania are many. In 1970 Kingunge Ngombale Mwiru while he was R.C.
outspoken about government proposal to increase benefits to Rcs&DCs. He was removed
from office and later on restored. (By that time Deputy Ministers &RCs were all under
collective responsibility). Edwin Mtei 1979/80 disagreed with what was to be done for the
economy of Tanzania changing it to Ujamaa- he decided to resign. In 1995, Augustine
Mrema did not agree with the government concerning the Chavda issue. He was sacked.
(b). INDIVIDUAL RESPONSIBILITY
Ministers are charged with the function of heading various ministries. All officials and
departments within a certain Ministry are under the command of the Minister responsible.
Although it is common ground that a Minister cannot do all the functions in his ministries
alone, but he ought to know what is being done in his ministry by officials who are under
him/her. This means that if waste, corruption, or any other misbehavior is found t have
occurred within a ministry, the minister is responsible even if the minister had no
knowledge of the actions. A minister is ultimately responsible for all actions by the
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Ministry. Even without knowledge of an infraction by subordinates the minister approved

the hiring and continued employment of those civil servants. If misdeeds are found to have
occurred in a ministry the minister is expected to resign.
The minister is responsible for anything that happens in his respective ministry before the
National Assembly. If the performance of his ministry is questionable he is the one who is
to be blamed and in case of any prospect he is entitled to be praised. This is what called
Individual Responsibility of a Minister. As far as the Constitutional and public law
principles are concerned, the actions of the civil servants are taken to be the actions of the
Minister responsible. So he has to take the credit for the good job of his civil servants and
likewise the blame for the bad job. “It is said that the Minister has many hands-as
explained in the so-called alter ego theory)”. If he cannot be able to handle his ministry
properly he will have to resign under this individual responsibility.
The principle is considered essential as it’s seen to guarantee that an elected official is
answerable for every single government decision. It is also important to motivate ministers
to closely scrutinize the activities within their departments.
Examples where Ministers were held responsible in Tanzania are:
 In 2007two Ministers, Dr. Ibrahim Msabaha and Nazir Karamagi had to resign after
they were linked to corruption scandal involving granting tender to RICHMOND
COMPANY to generate emergency power in the Country. In this scandal, the
Prime Minister, Edward Lowassa was also mentioned and thus was forced to resign.
 In 1997, Alli H. Mwinyi- then Minister for Home Affairs resigned for the torture
and killings that happened in Shinyanga done by Police and Security me
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wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww
VARIOUS QUESTIONS OF CONSTITUTION LAW
UNIVERSITY OF DARES SALAAM
UDSM SCHOOL OF LAW (FORMER FACULTY OF LAW)
DEPARTMENT OF PUBLIC LAW
DERPATMENT OF PUBLIIC LAWYEAR UNIVERSITY EXAMINATIONS FOR THE DEGREE OF BARCHELOR OF LAWS,
JULY 2010
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LW 100-CONSTITUTIONAL LAW
DATE:16.07.2010 TIME:15:00-18:00
INSTRUCTIONS
1. All paper consists of EIGHT questions. You must answer any FOUR questions. All questions carry equal marks
2. This is a PARTLY open book examination. Statutory materials are allowed BUT books, Notes and Annotations are not allowed
3. Mobile phones are strictly not allowed into the examination room.
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1.“To a constitutional lawyer, “good governance “ is all but subsumed in the wider and more fundamental notion of “Rule of law”.
A Critical Observer
Do you agree with the above contention? Why?
2. Make a critical comparative analysis between the Colonial Court system and the present court system in Tanzannia.
3. Professor Sifuni Mchome in his article titled “Constitutional Development in Tanzania 2004” writes:
“It should be underscored that legislation such as the Higher Education Students Loans Board Act, 2004 is a drawback to the full realization
of the right to education. The fact that the right to education is not enforceable in court of law is indeed unfortunate”
Critically discuss the above quotation in the light of Directive Principles of State Policy as contained in the Constitution of the United Republic
of Tanzania, 1977 giving your arguments for or against the unijusticiability of this part of the Constitution .
4. The Constitutional History of Tanzania has been quite eventful. How far is this true?
5. Article 3(1) of the Constitutional of the United Republic of Tanzania, 1977 declares Tanzania to be democratic, socialist and secular state
adhering to multi-party system.
(a). What is your opinion are the contradictions inherent in this article in itself and with any other article of the Constitution?
(b). What are the pros and cons of the Constitutional provisions prohibiting an independent candidate in Tanzania’s constitutional system?
6. Summarize the views of the most famous philosophers of constitutionalism that is Thomas Hobbes,(1689), John Lock(1989) and Jean-
Jacques Rousseau(1762) which formed the theoretical groundwork of democracy and republicanism showing how much are their ideas relevant
today in Africa.
7.While Judges in Tanzania believe that the Judiciary is independent, observers arque that the Judges are “timorous souls” and “unduly
deferential” in the administration of justice.
By citing relevant decided case critically discuss the above argument.
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8.There is plenty of evidence to show that there is actually no separation of powers. yet, constitutional and administrative law practice refuse to
write off the doctrine of separation of powers as irrelevant simply because of its function of safeguarding freedom and democracy against
blended powers.
Discuss various ways in which the constitutional practice in Tanzania can be said to be consistent with the above statement.
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UNIVERSITY OF DAR ES SALAAM
UNIVERSITY EXAMINATIONS-JULY, 2011
UNIVERSITY EXAMINATION FOR THE DEGREE OF BARCHELOR OF LAW AND SPECIALIZED POST –
GRADUATE DIPLOMA IN LAW
LW104: CONSTITUTIONAL LAW
DATE:20th July,2011 TIME:11:00-13:00 HRS, THEATRE II
INSRUCTIONS:
1. ANSWER THREE QUESTIONS.QUESTION ONE IS COMPULSORY.
2. This is PATLY OPEN BOOK examination. Students are allowed to come only with the
(a). The constitution of the United Republic of Tanzania,1977
(b). The Constitution of Uganda,1995
(c). The Constitution of Kenya, 2010
(d). The basic Rights and Duties Enforcement Act, Cap.391. RE, 202.
(f). The Treaty of the establishment of East Africa Community,1999
(g). The Magistrate Courts Act, Cap, 11, RE,202
(h). article of the Union between the Republic of Tanganyika and the Peoples of republic of Zanzibar,1964
3. Support your answer with relevant decision and judgment WHENEVER POSSIBLE.
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QUESTION No. 1
…..The problem facing the union between Tanganyika and Zanzibar is ambiguous Constitutional structure. The Article of the
Union established one sovereign republic. Then it established separate executive and legislature in for Zanzibar to be
governed by the laws of Zanzibar and having exclusive authority within Zanzibar for matters other than those reserved for the
legislature of the United Republic of Tanzania. Finally it established legislature and executive of the United Republic with
jurisdiction over union matters and for no-union matters in and for Tanganyika, Union matters were set out in article 4of the
Articles of the Union (East Africa Law Review Vol.28-30, 2003).
(a). CRITICALLY discuss the above quotation in the light of the contending complaints by some vigilant citizens that the
article of the Union is problematic and has to be changed if the union is to survive.
(b). Devise a viable strategy that should be taken on board during the whole process of discussion, drafting and approval of
the newly envisaged constitution
QUESTION No.2
Article 5(2) of the Treaty for the Establishment of the East African Community, 1999 provides
inter alia that;
‘……the partners state undertake to establish among themselves and in accordance with the provisions of the Treaty a
custom union, a common market subsequently a monetary union and ultimately a political federation…..’
(i). Does the above/ and any other provision in the EAC Treaty extinguishes at the date of the federation, the sovereignty and
statehood of the partner states?
(ii). What are the requirements set by the constitution of United Republic of Tanzania, 1977regarding the extinction of
statehood?
QUESTION No. 3
The principle of democracy attracts the notion that government shall be by people, of the people and for the people, The
Central notion is “peoples Power” expressed through a freely and fairly elected representative body known as parliament, of
course under impartial supervisory body i.e. Electoral Commission In England the concept of peoples power is embodied in
the doctrine of parliamentary sovereignty that has been watered down to “parliament sovereignty”
Single out any of the East African States as a Case study and CRITICALLY assess the powers and privileges of parliaments
in East Africa stating whether parliaments do enjoy “Parliamentary autonomy”
QUESTION No;4
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The Tanzanian Parliament is of the view that the whole concept of Human Rights is a neo-colonial legal order. A notion has
been moved by one of an eloquent MP that the United Republic Constitution should be amended in order to repeal the whole
of Part Three which contains Bill of Rights He argues that even the father of the nation, the late Mwalimu J.K Nyerere had
successful opposed the inclusion of Bill of Rights at the time of framing the Independence Constitution because it would act
as the barrier against speedy development. Also the so called opposition parties and human rights activities abuse the Bill of
Rights by mobilizing mass demonstration against the government plans. The MP strongly moved the parliament which
unanimously orders the Parliament committee on Legal and Constitutional Affairs to convene a meeting with all key
stakeholders in order to discuss about the removal of Bill of Rights from the Tanzanian Constitution. You are active member
of the University of Dar es salaam Law Society (UDLS) who fortunately did Constitutional law course. You are cordially
invited to address the stakeholders meeting
CRITICALLY prepare researched submission supported by relevant authorities to be presented at the stakeholders meeting ad
address the following;
(a). The philosophical foundation of Human Rights
(b). Can the Court of Law redress the victims of the so called human rights violations after the removal of Bill of Rights in the
Constitution?
QUESTION No.5
a) Is a President of Tanzania responsible to the National Assembly? Discuss

b) Briefly point out the reasons as to why to bill of Rights was not made as the part of the Tanganyika Independence
Constitution, 1961?
………………………………………….The End……………………………………………………….
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UNIVESITY OF DAR ES ES ALAAM SCHOOL OF LAW

LW/LWE 100, CONSTITUTIONAL LAW I
TIMED TEST-JANUARY 2017

Instructions
i. Write your names in the answer sheets starting with surname
ii. Attempt two questions only
iii. Write clearly and legibly
iv. Indicate in the answer sheets whether you are BALE or LLB Student
1. Montesquieu believed that the division of powers which he was

propagating was the most ideal arrangement for the protection of one’s
liberty. Explain what Montesquieu was propagating and state
whether his belief in sound in the modern time.
2. Discuss the Significance of the Settlement Act 1700 in relation to

the Constitutional law that we study today.
3. In the cerebrated case of Chumchua s/o Marwa v. Officer i/c of

Musoma Prisons and the Attorney General [Misc. Criminal Cause No. 2
of 1998, High Court of Tanzania at Mwanza] Justice James Mwalusanya
started, inter alia, thus:
…if by the Rule of Law all it means is that the government will
operate in accordance with the “Law”, then the doctrine of Rule of law
becomes a betrayal of the individual if not the laws themselves……
Discuss this statement.
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UNIVERSITY OF DAR ES SALAAM SCHOOL OF LAW

UNIVERSITY EXAMINATIONS
FIRST SITTING EXAMINATIONS FOR BALE, LLB, PGDL, SPGDL
&LL.M PROGRAMMES
LW100/LWE100 100-CONSTITUTIONAL LAW I
DATE: February 2,2017 | TIME:11-14:30
INSTRUCTIONS:
1. ANSWER A TOTAL OF FOUR (4) QUESTIONS.
2. All questions carry equal marks; that are to say 15 marks.
3. This is a PATLY OPEN BOOK EXAMINATION. Students are allowed to have success to
Printed Law Reports and Legal Instruments.
4. Where is any question the world “Tanzania” is used, such word shall not bar students from
citing laws, cases and examples from Kenya and Uganda.
5. Avoid verbiage and unnecessary quotations.
6. Support your answers with relevant legislation and Court decisions, WHENEVER
POSSIBLE.
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1. In the celebrated case of Chumchua s/o Marwa v. Officer i/c of Musoma Prisons and the
Attorney General [ Misc. Criminal Cause No.2of 1998,High Court of Tanzania at Mwanza ]
Justice James Mwalusanya started, inter alia,thus:
“..if by the Rule of Law all it means is that the government will operate in accordance with the
‘law’, then the doctrine of the Rule of Law becomes a betrayal of the individual if not the laws
themselves…”
Discuss this statement
2. “Magna Carta is regarded as the first constitution in the history”. (Anonymous)
Critical discuss the extent to which the above statement is true.
3.According to John Marshal (The fourth Chief Justice of the Supreme Court of the united
States), the particular phraseology of the Constitution of States confirms and strengthens the
principles supposed t be essential to all written Constitution that, inter alia, a law repugnant to
the Constitution is void, and the courts, as other departments are bound by that instrument.
Discuss the essential principles that must be enshrined in all democratic Constitutions showing
the extent to which the same have been/have not been taken on board.
4. What do you understand, by the principle of independence of the Judiciary and how far has
it been provided for Tanzania.
5. “In external actions individuals must give unflinching obedience to the state; only then his
moral personality can grow. Human beings want liberty; liberty involves rights and rights need
state. The state is indispensable for the fullest growth of personality of man. Man must ask the
state ‘my station and duties”.
7. Discuss the contribution, if any, of the classical social contract philosophers in the modern
constitutional discourse.
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UNIVERSITY OF DAR ES SALAAAM

FIRST SITTING AND SUPPLIMENTARY EXAMINATIN FOR THE LL.B, BALE,
PGDL&SPGDL
2016/2017 ACADEMIC YEAR
Subject: WE 100 CONSTITUTIONAL LAW

LW 100 CONSTITUTIONAL LAW I
Date: SEPTEMBER 4TH 2017
Time: 3Hours 3:00-6:00PM
INSRUCTIONS
a) Attempt 4(FOUR) Questions only
b) All questions carry equal marks; that are to say 15 marks
c) Answers should be conscious and authoritative, verbosity maybe penalized
d) Credit will be given for clarity of answers and to work which is arranged in short clear
paragraphs.
e) This is PARTIAL OPEN BOOK EXAM. Candidates are allowed to bring into
examination room CLEAN copies of the Constitution of any of the East African
Countries, relevant legislation, including the Constitutional Review Act and Printed Law
Reports.
f) Support your answer with relevant legislation and Court decisions, whenever possible.
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QUESTION 1
The legal aid committee of the Faculty of Law, University of Dar es Salaam published a small
book I 1985 entitled “Essays on Law and Society”. At page 32 the following is stated:
“Courts have been the traditional institution of state empowered to ensure that law is strictly
complied with by all state institutions. Their tenacity in discharging this duty has always been
extreme in cases where curtailment of personal liberty is involved. It is for example an established
rule that when statute has given an administrative authority powers to take away the freedom of
subject in order to achieve a specific purpose, any use of such law for purpose other than those
directed by law ought to be declared invalid by Courts”
QUESTION 2
It is believed that most of the gentile societies in Europe were egalitarian and communal, in terms
of decision making and property ownership. If this was the case, how did individuals in the
European gentile societies become subsumed in sovereign states, thus unequal?
How do social contract and Marxism thinkers account for this fact?
QUESTION 3
“In external actions individuals must give unflinching obedience to the state; only then his moral
personality can grow. Human beings want liberty; liberty involves rights and rights need state.
The state is indispensable for the fullest growth of personality of man. Man must the state ‘my
station and my duties.”
Against the theories behind the emergence of states, CRITICALLY DISCUSS the correctness or
otherwise of the above assertion.
QUESTION 4
Point out the relevancy of the case of Mwalimu Paul John Mhozya v. Attoney General (No. 1)
(1996) TLR 130 (HC) in relation to article 64(5) of the Constitution of URT 1977 and the
assertion that the people are rightful masters of Parliament and the Court, not to overthrow the
Constitution but to overthrow the men who prevent the Constitution.
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QUESTION 5
Write SHORT NOTES on any three of the following:
(a). Social contract
(b). Constitutionalism
(c). Good governance
(d). Warioba Commission on Constitutionalism
(f). rule of law
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SOME OF WORDS WHICH USED IN LAW FIRM AD THEIR MEANING
Ab initio……………………………………………………………………………………………………………………………….from the beginning
Aide-me’moire………………………………..……………..(used mainly in diplomacy) a memorandum, a list, a document etc.
Audi alteram partem…………………………………………………………………………………………………..hear the other side; it is
a principle of natural justice that no man should be condemned unheard; both sides should be heard before a decision
is given; everyone has the right to speak in his own defense and to have the case against him explained to him.
Bona fide(s)………………..… In good faith; honestly-without fraud, collusion, or participation in wrongdoing or deceit
Cadit quaestio………………….……the matter does not admit of any further argument; there is an end to the argument
Certiorari…..to be fully informed of ; an order of a superior court used to review and to quash decisions of tribunals.
De jure…………………………………………………..by right; by lawful title; by law; as a matter of law; where the title is clear.
De minimis non curat lex……………………………………………………………………………………………………………..…..the law
takes no account of every trifling matters; the law does not concern itself with trifles
De novo…………………….…………………………………………………a new; to begin de novo it to begin again by the beginning
Ejusdem generis…………………………………………….….of the same kind or nature. Rule of construction whereby of
particular words forming a genus or kind are followed by general words, the general words are constructed
ejusdem generis i.e. are held to be intended to describe only other things of the same kind or those enumerated by
the particular words. The rule does not apply where contrary intention is shown or where the particular words
exhaust the genus. See Les Cras v. Perpetual Trustee Co.[1967] 3 ALL E.R. 915 and Gregory v. Fearn [1953]1
W.L.R.974.
Ex facie………………………………………………………………………………………………………..…………..on its face; on the face of it
Ex gratia…………………………...as a matter of favour, ex gratia payment is a payment not compelled by any legal right.
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Ex parte……………………………………….on behalf of; also-one part, one sided-so, an injunction granted ex parte is an
injunction granted after hearing one side only and in a case of great urgency; an application in a judicial proceedings
made;(1) by an interested person who is not a party,(2) by one person in the absence of the other.
Ex post facto……………………………………………………………………………………….……………………………………………...…After
the event; by subsequent act; retrospectively; An ex post facto statute has a retrospective effect. A law having a
retrospective application. Signifies something done so as to affect another thing that was committed before.
Ex-facie ultra vires………………………………………………………………………………………………………….on the face of it- a
person or body has done something beyond his/its powers or allowed limits
Ex-officio……………………………………………………………………………………….by virtue of office; because of the office held.
Any prerogative or jurisdiction which a person in office has, by virtue of that office, he is said to exercise ex officio
Expressum facit cessare facitum……………………………….when all the terms are expressed nothing can be implied.
Extenso……………………………………………………………………………………………………………………………....at length (in detail)
Fait accompli…………………………………………………………….………..(French- accomplished fact) thing already done,
that cannot be undone and is therefore not worth arguing about. Something done and for this reason not reversible.
Fortiori(a fortiari)…………………………………………………………………………………………………………………………………..for a
stronger reason; e.g. if the witness was present at the scene of the crime, then a fortiori he must have heard the shot.
habeas corpus……normally called habeas corpus and subjiciendum means that you have the body; a prerogative
writ to command person who is detaining another in custody to produce the body of that person before the court
ibid……………………………….(ib. or ibidem) just the same; in the same place; from the same source; in the same case
in pari material…………………………………………………………………………………………………………….... in an analogous case
infra………………………………………………………………………………………………………………………………………………………..below
inter alia…………………………………………………………………………………………………………………………….among other things
inter partes………..as between the parties. A case heard where both parties are represented; the opposite of ex parte.
Inter se……………………………………………………………………………………………………………....(inter sese) Among themselves
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Intra vires…………………………………………………………………………………………………………………………....within its powers
Ispo facto……………………………………………………………….by the fact itself; by the nature of the case; by the ever
Leges posteriors priores contrarias abrogant………………………………….later laws abrogates prior contrary laws
Lex simper intendit quod convenit rationi…………………….. the law must be taken to intend what is reasonable.
Locus in quo…..scene of the event………………………………………….The place in which any thig is alleged to be done
Locus standi…………………………………………………………………………………………………………………………...place to stand; a
place of standing; a right to be heard; or the legal capacity to challenge some decision.
Mandamus……………………………..we command; a writ from the high court ordering performance of a public duty,
McKenzie Friend……also referred to McKenzie Man or McKenzie v. McKenzie [1971] Probate 33 is allowed to assist
or prompt a litigant in person; every litigant is entitled to be accompanied to court by a friend to assist him in his case.
The friend “may take notes”, may quietly make suggestions and give advice, but no can demand to take part in the
proceedings as an advocate contrary to the regulations of the court as settled by the direction of the justices (Collier v.
Hicks[1831] 2B&A 663).
Mens rea………………………………………………………………………………………………………………………………the guilty of mind
Mischief rule……………………………………………………………………….....method of construing a statute which necessitates
asking ;what was the common law before the statute; what was the mischief for which common law before the statute;
what was the mischief for which common law did not provide; what remedy has parliament resolved so as to cure it;
what is true reason of that remedy. See Heydon’s Case [1584] 3 Co Rep 7a and Kruhlak v.Kruhlak [1958] 2Q.B.32.
Mischief…………………………………………………………………………………………………….….the object or purpose of the statute
Nemo judex in sua cause………………………………………………………….....(Also nemo debet esse judexin propria causa)
the rule against bias; it is a principle of natural justice that no man should be a judge in his own case;or in a case to
which he has interested. See R v. Barnsley Metropolitan Borough Council exparte Hook[1976] 3 All E.R.726.
Nullum arbitrium sine rationibus………………………………………. the right to reasons from a decision maker; it is a
principle of natural justice that a person is entitled to reason(s) from a decision maker. An authority on this is the case
of James F. Gwagilo v. Attorney General, High Court of Tanzania at Dodoma, Civil case No.23of 1993 (Unreported)
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Nullum crimen nulla poena sine lege………………………….…. No offence unless it has been provided by the law
Obiter dictum……………………………………………………………………………………………………………………………..saying by the
way; statement of the law based on facts which were not present or not material in a case.
Ombudsman…………………………a popular name derived from Scandinavia of the official who investigates complaints
by the public against government departments or officials or other large organizations. In Tanzania the wok of
Ombudsman is done by the Permanent Commission of Enquiry (PCE) which is established under the Constitution
Omnia praesumuntur rite et solenniter erse acta…………………….all things are presumed to be done collectly
and solemnly (until the contrary shall be proved); all acts are presumed to have been done rightly and regularly.
Onus……………………………………………………………………………………………………………………………..responsibility for doing
something difficult; onus probandi –duty to prove that what has been alleged in court is correct
Passim…………………………………………………………………………………………………………………………………….here and there;
in various places; everywhere in the book. Used in relation to a reference appearing throughout e.g. a book or statute.
Per in curium…………………………………………………………………………………………..through want of care; a decision made
in ignorance or forgetfulness of inconsistent statutory provision or some authority binding on the decision maker.
Per se………………………………………………………………………………………………………..by itself; taken o its own; taken alone.
Persona designata……...…a person pointed out or described as an individual, who opposed to a person ascertained
as a member of a class, or as filling a particular character; an individual as distinguished from a member of a class
Prima facie…..on the face of it; based on the first impression
Prohibition………………………………………………………………………………………………………..an order by the High Court
preventing or prohibiting a body from acting, which will lie against an inferior tribunal or body in relation to the
decisions affecting an individual’s rights; issued e.g. to prevent an imposition of sentence on the accused person if
there has been no proper trial. See R v. Electricity Commissioners [1924] 1 K.B.171 and Re Godden [1971]2 QB.662
Quod principi placuit legis habet vigorem….the will of the emperor has the force of law, for by the royal law
which has been made concerning his authority; the people have conferred upon him all its sovereignty and power
Ratio recidendi….the reason or ground for judicial decision
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Res ipsa loquitur………………………………………………..………………………………………………………………………………….….the
thing speaks for itself; the maxim applies whenever it is so probable that such an accident would not have happened
without the negligence of the defendant, that a reasonable jury could find without evidence that it was so caused; a
phrase used in actions for injury occasioned by negligence where no proof of required of negligence beyond the
accident itself; the maxim throws on the defendant the burden of disapproving negligence
Rhme judex in sua causa………………………………………………………………………………………………..the rule against bias
Ritial votaries………………………………………………………………………………………………………………………..of the status quo
Sed quis custodiet ipsos custodies?..............................................................who is to guard the guard themselves?
seriatim............................................................individual. Separately and in order. Serially. One after another in order
stare decisis…………………………………………………..…stand by the decided matters; binding by the precedent; stand by
precedent and not to disturb settled points; doctrine according to which previous judicial decision must be followed
status ……………………………………………………………………………………………………………………………….…state
of things as they are now; the state in which anything is already; thus, when it is said that provisionally, matters are to
remain in status quo, it is meant that, for the present, matters are to remain as they are.
Sui generis…………………………………………………………………..of its right; consisting of its own; the only one of its kind
Suo motu…………………………..on its own; the Court may raise an issue on its own; an issue not rose by the parties and
ask the parties to address it e.g. a human rights or constitutional issues in a normal criminal matters. See Attorney-
Generel v. Marwa s/o Mgori, CA of Tanzania at Mwanza, Criminal Appeal No. 95 of 1988(unreported)
Supra…………………………………………………………...........…above; higher than; prior to; often used to refer the reader to a
previous part of a book, an article or judgment
totidem verbis…………………………………………………………………………………in so many words; respectively and exactly
tour de force…………………………………………………………………………………………………...a notable feat of straight or skill
ubi jus ibi remedium………………………….where there is a right there is a remedy; there is no wrong without remedy
ultra vires ……….beyond the powers ; term relating generally to excess of legal powers or authority ; an act in excess
of authority conferred by law and therefore invalid
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verbatim…………………………………………………………………………………………………….……word for word; exactly; precisel
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Constitutional Law-1

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 Phillips,O.H., O. Hood Phillips’ Constitutional and Administrative Law, 7 th Ed.,

III. CONSTITUTIONAL HISTORY: DEVELOPMENT OF CONSTITUTION IN

BOOKS FOR REFERENCE UNDER THIS MODULE

 Anderson, P., Passages From Antiquity to Feudalism, NLB. 1964

IV.CONSTITUTIONAL PRINCIPLES AND DOCRINES

 Philips, O.H.,O. Hood Phillip’s Constitutional and Administrative Law.

 The Constitution of Kenya

 De Smith, Constitutional Law,1962

BOOKS TO REFER UNDER THIS MODULE

 Dicey,A.V., Introduction to the study of the Law of the Constitution

 The Constitutional of United Republic of Tanzania,1977

2, MEANINGS AND CLASSIFICATION OF CONSTITUTIONS

For them if rules and principles of an organization cannot be produced in a written

(ii) With regard to Rigid Constitution

 Constitution is the mother law

(c) Judicial precedents/Interpretations

(e) Customary international law

(f)Academic works of eminent Jurists and political scientists

{Refer; The URT Constitution chapter Two, Three and Five.

 Democratic and dictatorial Constitution

 Is largely written in character

THE CONSTITUTIONAL HISTORY: DEVELOPMENT OF CONSTITUTION IN

 In transition to ‘early Iron Age’ from ‘late Stone Age’.

 Had no written codes of law, social rules were characterized by customs

SOCIAL DETRMINANT OF THE GENTILE CONSTITUTION

In savage society, social relation was promiscuous i.e. no restriction or prohibitions on

THE BASIC ORGANS UNDER GENTILE CONSTITUTION

THE TRIBAL ASSEMBLY

Usually, a tribal is characterized by a common economic activities and territory. It is own

FUNCTIONS OF TRIBAL ASSEMBLY/COUNCIL BY THEN

2. THE GENTILE CONSTITUTION IN INCIENT ROME

DECLINE OF ROMAN GENTILE CONSTITUTION

3.THE GENTILE CONSTIUTION IN GERMANIC SOCIETIES

 Common terms for gens.

 Councils of gentile chiefs (Principles) which decided matters of minor importance

DECLINE OF GERMAN GENTILE SYSTEM

PART TWO: THE SLAVE STATE CONSTITUTION

THESOCIAL CLASS STRUCTURE OF SLAVE TRADE: A CASE STUDY OF THE

ORGANS OF SLAVE STATE

 THE STATE ASSEMBLY/THE ROMAN SENATE/COUNCIL OF ELDERS

 CITY STATE POPULAR ASSEMBLY/CURIATE ASSEMBLY

**other organs included, the King or Queen(Rex/Regina), Century/Military assembly,

FEATURES OF THE SLAVE STATE CONSTITUTION

PART THREE: FEUDAL STATE CONSTITUTION

THE POPE/THE CHURCH

THE BOURGEOIS/SOCIAL CONTRACT PHILOSOPHERS AND BOURGEOIS

**Social Contract is an implicit agreement among the members of a society to cooperate

NATURAL LAW AND STATE

2. THOMAS HOBBES (1588-1676)

 To be judge in all cases.

3. JEAN-JACQUES ROUSSEAU (1712-1788)

4. CHARLES DE SECONDAT, BARON DE MONTESQUE (1689-1755)

THE EXECUTIVE (WESTMINISTER SYSTEM)

FEATURES OF BOURGEOISIE CONSTITUTION

(c).The doctrine of Rule of Law

APPLICATION OF THE DOCTRINE OF SEPARATION OF POWERS IN THE UNITED

THE APPLICATION OF THE DOCTRINE IN OTHER COUNTRIES

 The three organs of Government are both Separated

power is exercised in accordance with consensually arrived at principles and procedures,

competent authorities of sentences imposed by the judiciary, in accordance with the

QUALIFICATIONS, SELECTION AND TRAINING

PROFESSIONAL SECRECY AND IMMUNITY