SMU
JF-Expert Member
- Feb 14, 2008
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....bali kuna mgogoro mkubwa wa kikatiba hapo.
Kwa ujumla katiba zote mbili zina matatizo makubwa tu na kuna vipengee kadhaa ambavyo havipo harmonised. Kinachotokea Zanzibar sasa hivi ni matokeo ya udhaifu katika katiba zetu. Mahakama ya rufani mara kadhaa imekuwa ikizionya serikali zetu kutatua matatizo haya lakini hawasikii.
The Court was faced with a similar situation in Seif Sharif Hamad v. SMZ, Criminal Appeal No. 171 of 1992 (unreported). Two of us dealing with this appeal were also in the panel for that appeal. We mused over a number of incongruent provisions of the two constitutions and after that we had this to say on page 18 of the type-written judgment:
Tunapendekeza kuwa mamlaka zinazohusika katika pande zote mbili za Muungano zichukue hatua zipasazo kusawazisha vifungu hivi na vingine nyenye utata ama uwezekano wa kuleta utata baina ya hizi Katiba mbili.
A free translation would be: We recommend to the relevant authorities on both sides of the Union, to take necessary steps to harmonize these conflicting sections and other sections of the two constitutions which are potentially irreconcilable.
It burdens our hearts that such a solemn appeal went unheeded and failed to find purchase like the warning of the Soothsayer to Julius Caesar: Beware the ides of March.
Tizama pia madudu mengine haya yaliyowahi kutokea!
Again, to digress a bit, the earlier version of the 1977 Union Constitution was silent as to which government had authority over Mainland Tanzania for the non-Union Matters. The categorization that such authority was vested in the Union Government existed in the Interim Constitution of the United Republic, 1965, but it was not reproduced in 1977. Professor B.P. Srivastava in his Professorial Inaugural Lecture, The Constitution of the United Republic of Tanzania, 1977 Some Salient Features Some Riddles, delivered on 6th March, 1982, pointed out that omission. He argued that it was unconstitutional for the Government of the United Republic to deal with non-Union Matters for the Mainland Tanzania. Probably that criticism prompted the reinstatement of the 1965 position. We make this observation to underscore the need to be painstaking in writing our Constitution.