WORK OUTLINE

INTRODUCTION

MAIN DISCUSSION

ELEMENTS OF THE CONSTITUTIONAL GOVERNMENT

Separation of power
Independence of Judiciary
Protection of the Fundamental Rights
Rule of Law

Supremacy of the Constitution

Democratic Governance

CONCLUSION
REFERENCE
INTRODUCTION

The phrase "constitutional" refers to everything having to do with a constitution or the concepts,
structures, and processes defined in one. A constitution is a fundamental set of laws and concepts
that forms the foundation for governance, specifies a government's structure, describes
individuals' rights and obligations, and limits governmental power. When there are conflicts or
disagreements concerning the interpretation, application, or observance of constitutional
provisions, constitutional issues can arise. This can include issues such as the separation of
powers, the safeguarding of fundamental rights, the balance of authority among several
institutions of government, or the constitutionality of specific legislation or actions. This work
will explain the elements of the government operates within the framework of the constitution
and respects the principles of constitutionalism.

MAIN DISCUSSION

ELEMENTS OF THE CONSTITUTIONAL GOVERNMENT

Separation of power
The separation of powers is a key tenet of constitutional governance that divides government
functions and authorities into several branches in order to prevent power concentration in any
one body.1 This concept was created by political thinkers such as Montesquieu to offer checks
and balances and to protect against abuses of authority. 2 The executive, legislative, and judicial
branches are the three principal branches commonly linked with the separation of powers. Article
4 of the United Republic of Tanzania Constitution 3 establishes the element of separation of
powers to ensure the supremacy of the rule of law. That is how a democratic government acts, as
it is meant to follow the principle of separation of powers among its three parts. In the case of
Mwalimu Paul John Muhozya v Attorney General,4 the issue was separation of powers, and the
court held that the balance of power between the three pillars of government, namely the
legislature, executive, and judiciary, as well as the court's relationship to the other branches,

1
Mtaki. C.K. (1994) “The doctrine of Separation of Powers and Constitutional developments in Tanzania”:
University of Dar es Salaam Press, p 35.
2
Montesquieu, Sprit of Laws, Chapter 6.
3
Constitution of the United Republic of Tanzania Cap 2 of 1977
4
[1996] TLR 130
must be properly preserved. One branch of government should not assume the authority of
another.
Independence of Judiciary
One of the three organs of government is the judiciary. This part is arguably the most significant
in terms of justice because it is the organ through which individual or collective rights are
safeguarded, guaranteed, and protected. A constitutional government maintains an independent
court to impartially interpret and administer the law. Article 107A (1) of the Tanzanian
Constitution state that; “the Judiciary shall be the Authority with final decision in dispensation of
justice in the United Republic of Tanzania."5

Protection of the Fundamental Rights

Another component of the government's constitutional framework is the protection of
fundamental rights, which appears to distinguish between democratic and authoritarian
administrations. Such element reveals itself as a tool for human rights protection under
democratic governments. A comprehensive list of rights is specified in Chapter two (2) under
part 3 of the Constitution, including the right to life, equality, freedom of expression, and
protection from torture, among others.6

Rule of Law

Constitutional governments uphold the principle of the rule of law, ensuring that all individuals,
including government officials, are subject to the law. The government, under the rule of law,
demands proper legal limits on the exercise of power. 7 This does not mean purely that acts of
authority must be justified by the law; the law in which those acts are exercised must also
prevent dictatorship. Article 13(1),8 states that every person is equal before the law and entitled
to equal protection and benefit of the law.

Supremacy of the Constitution

5
Article 4 of Constitution of the United Republic of Tanzania Cap 2 of 1977
6
Article 13-24 of the Constitution of the United Republic of Tanzania Cap 2 of 1977
7
Wade. H.W.R., (1995)“The Basis of Legal Sovereignty, ”Cambridge Law Journal, pg 172
8
The Constitution of the United Republic of Tanzania Cap 2 of 1977
The Constitution's supremacy is recognised and established in the country's legal system. The
Constitution is regarded as the supreme law of the land, and all other laws, rules, and activities
must be in accordance with its provisions. The element of the Constitution's supremacy assures
that no law or action can contradict or override the provisions of the Constitution. According to
Article 64 (5) of the Constitution,9 the Constitution is the supreme law of Tanzania, and any
statute or provision that is inconsistent with it is declared void to the extent of the inconsistency.
The principle of the Constitution's supremacy permits the court to review legislation and actions
to guarantee their compliance with constitutional obligations. Courts have the authority to
declare laws or regulations. In the case of Julius Ndyanabo v Attorney General,10 the provision
112 of the Election Act required a petitioner to deposit a bond of 5 million shillings in order to
file an election petition, and the high court held that the provision was unconstitutional under
article 13 (1) of the United Republic's constitution.

Democratic Governance
A government governed by democracy is one in which power is placed in the people and
exercised through free and fair elections, political involvement, and the safeguarding of
fundamental rights and freedoms. It is element include popular sovereignty, equality, and the rule
of law. Constitutional governments embrace democratic principles, including regular and free
elections, peaceful transfer of power, and respect for the will of the people. Tanzania
Constitution, in Chapter three under part II,11 guarantees political rights and sets out the
framework for elections and the formation of government.

Conclusion
Possession and publication of a constitution do not constitute a constitutional government. The
rule of law, separation of powers, protection of fundamental rights, a clear mechanism for
constitutional revisions, and an independent judiciary are all components of constitutional
government. The Tanzanian Constitution exhibits these features by providing a framework for

9
The Constitution of the United Republic of Tanzania Cap 2 of 1977
10
[2004] TRL 14
11
Article 78-79 of the Constitution of the United Repulic of Tanzania Cap 2 of 1977
governance, defining the government's powers and restrictions, protecting fundamental rights,
and instituting checks and balances.

REFERENCE

The Constitution of the United Republic of Tanzania Cap 2 of 1977

CASES LAW

Julius Ndyanabo v Attorney General [2004] TRL 14

Mwalimu Paul John Muhozya v Attorney General [1996] TLR 130

BOOKS

Montesquieu, Sprit of Laws, Chapter 6.

Mtaki. C.K. (1994) “The doctrine of Separation of Powers and Constitutional developments in
Tanzania”: University of Dar es Salaam Press.

Wade. H.W.R., (1995) “The Basis of Legal Sovereignty,” Cambridge Law Journal.