Why the WARIOBA COMMISSION has failed the nation in many ways!


Rutashubanyuma

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Rutashubanyuma

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Joseph Sinde Warioba cheering on the First President inaugurating a draft constitution.

I have just paid a visit to Tume ya Mabadiliko ya Katiba website and the shock that greeted me was the Rasimu ya Katiba was not there! So this contribution is constrained to what the Chairman of the Commission laid down as a synopsis in the said constitutional draft.

I have always been vocal on the misgivings I nursed on suitability and legitimacy of the constitutional process that was dictated before us by the executive. We know that JK regime never wanted a constitutional re-engineering and under public pressure they caved in a manner that left the regime in total control of the final product. And our bragging opposition led by Chadema also sold us when they agreed to be placated with a couple of “eating” positions in the Commission.


What are the real problems with this Warioba Commission?

1.0 Unconstitutionality of the whole process!

a) An act of parliament can not topple our constitutional order! (Read Mtikila v. A.G [CAT] decision on private/Independent candidates (supra).

b) Presidential appointments of commissioners were not transparent, competitive and participatory!

c) Legitimacy of the Commission can not be justified on past performance of the appointees!

d) Constitutional re-engineering process wrongfully vested on the institution of the presidency!

e) People participation geared for a window dressing!

2.0 The devil is always in the detail.

a) National values include transparency but it is unclear how constitutional institutions will be formed based on national values.

b) National values should include public participation in formation of government or in the alternative human rights be part of national values. The details on how public servants are appointed is a key matter in addressing the serious problem of poor leadership, endemic official graft, , integrity, nepotism, tribalism, cronyism and religious biases in the appointment of such servants.


c) It is ridiculous that in the 21[SUP]st[/SUP] Century the executive can continue enjoying a leeway of borrowing without seeking a fiat from the Augusta House. Let us stop them now!

d) Since it is a human right for citizens to take part in the building their own nation it makes no sense at all to limit presidential seekers to 40 years and the excuses chosen are based on experiences elsewhere and not from the proposed constitutional provisions on human rights. It is sufficient to state all the rights ushered to a voter ought to be protected to the any office seeker in the public. In other language is if we trust a teenager to vote then there is no reason we should mistrust her from seeking any office she is eligible to vote. It is time to demystify the presidency and not impose qualifications which are unconstitutional for a mere reason of being discriminative based on age and limited to just that office!


e) On rights to question presidential election again the proposed human rights on participation have been infringed. Stakeholders in any election are all Tanzanians. How do we limit electoral challenges only to those office seekers? It is pathetic, to put it mildly.

f) On presidential impeachment, the commission claims where we are is the right spot without answering the basic issues of infringements of the principles of natural justice on a charged president to be subjected to the same accuser playing the role of a witness, a prosecutor and a judge. It is despicable that the commission did not propose a second upper chamber of the House to spare us the injustices created by the existing constitution where the parliament is a judge of its own cause as far as the impeachment of the president. This is considered a grey area because the ccm dominated commissioners never contemplate a day a ccm president will face such a humiliation and this is why it is not given its due thought. If a second chamber is costly given there will be two more chambers to cater for individual governments of Tanganyika and Zanzibar then both of these chambers ought to form part of impeachment process on simple majority vote either to assent or dissent. If one of these lower Houses dissent then the process will be considered aborted in the favour of the sitting president who is under parliamentary investigations.


g) Forcing each constituent to elect opposite sexes is ridiculous. The underlying assumption there is faulty for being parochial and not strategic. It is tantamount to an admission that women will never challenge men’s domination in politics and they need constitutional protection which to say the least is an utter degradation of our women! Most women will prefer to fairly compete with men and if they are considered better than men be elected on their own right. My recommendation there is all constituents be offered to all without a gender consideration and women preferential list of not more than a third of all MPS be reserved for election in all constituents. A Kenyan constitutional case is instructive here.

h) MPs be free to answer to their conscience whether to abscond from dictatorial political parties without having to consider that if the initiation is from them then they will have to face voters in an election battle. We elect people not parties and I thought the dictatorship of parties together with their abuses of voters will come to a screeching halt but it seems bad habits die hard too. If a political party can not take away voters' rights by axing the MP then the MP is also ought not to be affected if he parts ways with his former bosses, simple and clear. After all, recalling constitutional clauses of MPs are there to check upon the impunity generated by wayward MPS why then restrict them even more in the hands of political parties?

i) There is a need to include all members of parliament and divisional councilors in sanctions against participating in executive positions or activities and responsibilities earmarked to the executive or judiciary and that will take care of Speaker and her Deputy playing roles in the Committee that recruits members of the electoral commission. How can we call it an independent election commission when it is corrupted by the judiciary through Chief Justice and the Speaker of the House? Are we in April Fools' day or what?

j) Speaking of the electoral commission, we will not judge it in its cover that if you rename it “independent commission” then it will be independent. We may be dumb but it is foolish to consider us that dumb. Constitutional assurances that local government, national security and the state House will have zero role to play are vital safeguards to ensure the legitimacy and the integrity of the election are above reproach. Active Chief justice and the Speaker or their sidekicks hobnobbing in the formation of the electoral commission taints the integrity of the election. For example the president of the Supreme Court is also the Chief Justice where electoral disputes will be settled as a Court of first and last resort. Some of the complaints may touch upon the competency of the appointees that the Chief justice had taken part in ratifying their appointments which the public may perceive as politically motivated.
Then how can the same Chief Justice be an impartial arbiter in such election disputes?

Another legal limb is constitutionality of separation of powers between the three arms of the government. Part of the legal limbos we find ourselves ensnared in is the lack of clear constitutional imperatives that debar members of one arm of the government from encroaching on the other arm of the government. A serious and committed Constitutional re-engineering commission would have been cognizant of that and deal this enslavement a lasting blow. But not getting the best services from Warioba Commission is no surprise because the formation of this commission was politically motivated to begin with.


k) Will continue after the gaps have been filled by accessing of the whole document.


3.0 Concluding remarks.
In Kiswahili we have a saying which says “Ndege njema huonekana tangia asubuhi” and here it suffices to conclude that once again the executive has won a day and common mwananchi has been sold out by all political parties. If you are smart trust neither of them.

Of all of the collossal errors of judgment committed by the Warioba Commission is to clothe aliens with constitutional powers to determine the legitimacy and integrity of our elections
through the appointments of the independent election commission hiring committee. I have never heard any country that mistrusts its own people to the degree this commission has insulted our collective intelligence.

Ironically, the current constitution recognizes that the sovereingty of this nation is in the hands of the people of Tanzania but a supposedly better constitution abrogates that constitutional power to aliens via a weird hiring committee of the so-called
"independent electoral commission" that is corrupted not only by foreigners but also the Speaker and the Chief Justice. Will there be a happy end to the official graft saga? I solemnly doubt that is the objective of this commission.

We have come a long way, but I did not expect a time will come when aliens will be considered a safer bet than common mwananchi. What is the commission fearing begs for at least a rebuttal.

 
Kobello

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Too late! ... but there's a case at the supreme court, I think.
 
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When the President announced his Presidential Constitutional Review Commission that will preside over the process of writing a new Constitution, I said I will reserve my comments until I read the first draft of the new Constitution. I haven't read the draft yet.

Our current Constitution was made by a group of people who were not inclusive. The majority were excluded from political process of the making of the constitution.

It is unquestionable that constitutions made by commissions, without fully participation of people's representatives cannot make the government system inclusive.

In order to transform and make Tanzania a prosperous country, a Constituent Assembly was a matter of necessity for the making of the new Constitution.
 
Rutashubanyuma

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Too late! ... but there's a case at the supreme court, I think.
There is no such thing as too late. A quest for a a better TZ will continue irrespective of what happens to this venal process. Remember less than 20 years ago Nyerere refused us a three government tier system of governance now where is he to stop us? Humans are mortal but human rights will survive humanistic frailties. Again Warioba may talk tough today but where will he be in ten to twenty years to come? A cold shallow grave awaits him and he will be forevermore silent just like Nyerere is, and TZ's aspirations will outlive him just like they outlived his mentor Nyerere.............Supreme Court in TZ? Give me a break..............or you mean High Court. Again, am not conversant with the gist of their complaints.........
 
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When the President announced his Presidential Constitutional Review Commission that will preside over the process of writing a new Constitution, I said I will reserve my comments until I read the first draft of the new Constitution. I haven't read the draft yet.

Our current Constitution was made by a group of people who were not inclusive. The majority were excluded from political process of the making of the constitution.

It is unquestionable that constitutions made by commissions, without fully participation of people's representatives cannot make the government system inclusive.

In order to transform and make Tanzania a prosperous country, a Constituent Assembly was a matter of necessity for the making of the new Constitution.
For me, in particular, I share most of your sentiments but with one caveat: Any constitutional making process to have a legitimacy ought to be anchored in the current constitution. What is going on is unconstitutional; and when you see even retired Chief Justice is willing to lend legitimacy to an illegality, it baffles me to the rooftop of Mount Kilimanjaro. Can really a morsel of bread be enough to entice the retired Chief Justice to stoop this low? I knew greed is a root of all kinds of evil but now I am not sure how much I really know.................
 
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I said from the very begining the whole process is ''fraud''.
I had no confidence with Warioba to oversee the transformation.
The way JK hijacked the issue was enough to raise a red flag

Today Mr President snubbed the inaugural to give the process legitimacy of openness without interference.

I concur with you that the devil is in the details.
Warioba did not say anything about citizenship amid the fear that he will spark the fire prematurely
 
Rutashubanyuma

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I said from the very begining the whole process is ''fraud''.
I had no confidence with Warioba to oversee the transformation.
The way JK hijacked the issue was enough to raise a red flag

Today Mr President snubbed the inaugural to give the process legitimacy of openness without interference.

I concur with you that the devil is in the details.
Warioba did not say anything about citizenship amid the fear that he will spark the fire prematurely
Since the process is a fraud then we have a reason and a justification to continue agitating for a new constitutional dispensation..........This is a leaders' preference we have to continue seeking the just and righteous one for all particularly the led.......

AM also shocked to see leaders in the NGO are constitutionally barred from membership of the so called the commission of independent elections. If that scenario was followed in Kenya the incumbent Chief Justice of Kenya- Dr. Willy Mutunga- a doctorate holder of laws would not have been a Chief Justice. Why do we discriminate our citizens? Is it a sin to earn a living in civil society? I thought the impartiality of the Speaker, aliens and Chief Justice is of more concern to the integrity of the election than curtailing the rights of members of the civil society. Who are more partisan? No one can be a Speaker unless is sponsored by a political party. The same can be said of the Chief Justice. And of aliens whose interests will they be safeguarding and who will consider them for appointment? Are they really impartial or not partisan than all of us put together?
 
Eric Cartman

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Talk of rubbish in a fancy language the whole article is pathetic, for starters what was wrong with the existing constitution?

You cant just demand of a new constitution if you have no clear sight of the amendments you want to see on the existing one.

trouble with you people is that you have politicized the whole issue instead of asking for clear goals and making right of what was wrong in the dysfunctional system of balance and checks. You had to add the unnecessary calls just to prove you can challenge the current administration that was so pathetic, so as this nonsense article.
 
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Talk of rubbish in a fancy language the whole article is pathetic, for starters what was wrong with the existing constitution?

You cant just demand of a new constitution if you have no clear sight of the amendments you want to see on the existing one.

trouble with you people is that you have politicized the whole issue instead of asking for clear goals and making right of what was wrong in the dysfunctional system of balance and checks. You had to add the unnecessary calls just to prove you can challenge the current administration that was so pathetic, so as this nonsense article.
I thought your broken English is pathetic! I just perspired to discern what you mean and I seriously doubt you understood what are the bone of contentions. If you had carefully read what I have averred you could have clearly seen where my heart lies. Be honest and do not accuse me of lacking a vision! Issues raised in this discourse have nothing to do with who is in power but rather whether laws have been broken to slake a quest for a new constitution....If you are capable- sincerely I doubt you are- to respond to that then we may commence in earnest to address your angst which totally seems out of place..................But if I argue with a fool of your calibre who will notice the difference, anyway?
 
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[FONT=&quot]The whole process is NULL AND VOID.
And where did they get the idea that we should have two MP from each constituency[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]1. Members elected from the same number of constituencies. 239[/FONT]
[FONT=&quot]2. Special seats women members. 102[/FONT]
[FONT=&quot]3. Members elected by the Zanzibar House of Representatives. 5[/FONT]
[FONT=&quot]4. Attorney General. 1[/FONT]
[FONT=&quot]5. Members appointed by the President. 10[/FONT]
[FONT=&quot] Grand Total . 357[/FONT]
[FONT=&quot]Have they ever thought of the running cost? Currently we have 239 selected MPS from their recommendation the number has to double!
I think we will also need another building to accommodate 700PS plus cars plus allowances.
Where are we going?[/FONT]
 
Eric Cartman

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I will ignore the language jibe nor i wont comment on a your writing skills, apparently you seem to be proud of it. Lets just stick with the context of your arguments.

What are the real problems with this Warioba Commission?

1.0 Unconstitutionality of the whole process.

a) An act of parliament can not topple our constitutional order!

b) Presidential appointments of commissioners were not transparent, competitive and participatory!

c) Legitimacy of the Commission can not be justified on past performance of the appointees!

d) Constitutional re-engineering process wrongfully vested on the institution of the presidency!

e) People participation geared for a window dressing!
You cant just give an argument and decide it is unconstitutional unless the constitution clearly had directives on those matters should they arise and what entails the procedure of changes. Therefore where on the current constitution gives you that justification on what you described unconstitutional?

a. Yes an act of parliament can never go against a constitutional writing, do you even know the purpose of constitution?
the parliament can amend the constitution but it can never pass any acts that are not permitted by the
constitution meaning first they have to vote to amend the constitutional if the act is considered unconstitutional.

As for your points b,c and d that is just your own opinion, on the democratic deficit of the whole process; but was it unconstitutional? the answer is no, unless the procedure has been elaborated clearly under the current constitution.

e. there are reasons why people in a wider society participate in writing a new constitution, the main influence being
sectorial complaints and the best way to fill that gap is by including a wider participation. But a constitutional that
aimed to improve the governance and accountability is a matter of even one quango in some developed countries.
2.0 The devil is always in the detail.

a) National values include transparency but it is unclear how constitutional institutions will be formed based on national values.
What are the national values of Tanzania or of any other nation for that matter. In most cases the term would be translated as moral or ethical values these are just traditional thought accepted to guide the local way doing things. If you cant even describe democratic values and you call your self of the highest caliber then as a nation we have a problem with our scholars awareness of politics.

By the way the rest of what you described thereafter are democratic values, which some of them are fully flawed concepts na muda huo sina wakukosoa, apparently you don't even know what is the concept behind the human right act and it is usage nor that it exists in the current constitution but is never respected. Don't just use terminologies hovyohovyo ukadhani unatukoga wote.
 
Rutashubanyuma

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[FONT=&amp]The whole process is NULL AND VOID.
And where did they get the idea that we should have two MP from each constituency[/FONT]

[FONT=&amp]1. Members elected from the same number of constituencies. 239[/FONT]
[FONT=&amp]2. Special seats women members. 102[/FONT]
[FONT=&amp]3. Members elected by the Zanzibar House of Representatives. 5[/FONT]
[FONT=&amp]4. Attorney General. 1[/FONT]
[FONT=&amp]5. Members appointed by the President. 10[/FONT]
[FONT=&amp] Grand Total . 357[/FONT]
[FONT=&amp]Have they ever thought of the running cost? Currently we have 239 selected MPS from their recommendation the number has to double!
I think we will also need another building to accommodate 700PS plus cars plus allowances.
Where are we going?[/FONT]
Last edited by Njowepo; Yesterday at 16:05.​
On this one they seem to be cost conscious and possibly smart. What they have done they have confined themselves on the Union government and recommended that the union parliament will have 75 constituents. 20 from the Isles and 50 from the Mainland and the Union Prezzy will have a leeway of 5 to dole out to minions who are disabled where the formular remains cryptic
 
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I will ignore the language jibe nor i wont comment on a your writing skills, apparently you seem to be proud of it. Lets just stick with the context of your arguments.
By Rutashubanyuma


What are the real problems with this Warioba Commission?

1.0 Unconstitutionality of the whole process.

a) An act of parliament can not topple our constitutional order!

b) Presidential appointments of commissioners were not transparent, competitive and participatory!

c) Legitimacy of the Commission can not be justified on past performance of the appointees!

d) Constitutional re-engineering process wrongfully vested on the institution of the presidency!

e) People participation geared for a window dressing!



You cant just give an argument and decide it is unconstitutional unless the constitution clearly had directives on those matters should they arise and what entails the procedure of changes. Therefore where on the current constitution gives you that justification on what you described unconstitutional?

a. Yes an act of parliament can never go against a constitutional writing, do you even know the purpose of constitution?
the parliament can amend the constitution but it can never pass any acts that are not permitted by the
constitution meaning first they have to vote to amend the constitutional if the act is considered unconstitutional.

As for your points b,c and d that is just your own opinion, on the democratic deficit of the whole process; but was it unconstitutional? the answer is no, unless the procedure has been elaborated clearly under the current constitution.

e. there are reasons why people in a wider society participate in writing a new constitution, the main influence being
sectorial complaints and the best way to fill that gap is by including a wider participation. But a constitutional that
aimed to improve the governance and accountability is a matter of even one quango in some developed countries.
By Rutashubanyuma

2.0 The devil is always in the detail.

a) National values include transparency but it is unclear how constitutional institutions will be formed based on national values.



What are the national values of Tanzania or of any other nation for that matter. In most cases the term would be translated as moral or ethical values these are just traditional thought accepted to guide the local way doing things. If you cant even describe democratic values and you call your self of the highest caliber then as a nation we have a problem with our scholars awareness of politics.

By the way the rest of what you described thereafter are democratic values, which some of them are fully flawed concepts na muda huo sina wakukosoa, apparently you don't even know what is the concept behind the human right act and it is usage nor that it exists in the current constitution but is never respected. Don't just use terminologies hovyohovyo ukadhani unatukoga wote.
Last edited by Eric Cartman; Today at 04:35.
I understand your frustrations with everything constitutional but because you have candidly admitted ignorance for the first time; I honestly feel you deserve, a little of free constitutional tutorials from me!

But due to the time limitation, I will refer you to the Court of Appeal decision (supra) that was before the 7 justices chaired by the then Chief Justice Augustine Ramadhan -for some reason best known to himself, he has now developed an acute yet convenient amnesia of this decision that he wrote himself! - in throwing out Mtikila's pleas for the Court to strike out a number of Articles (2) in the Constitution for being unconstitutional regarding the issue of prohibition of the private/ independent candidates- the Court sought and secured succour in Articles of the same Constitution which empower the House to amend it! The Court went further and stated categorical that when the Court is called upon to strike out amendments carried out in the Constitution the only grounds it will consider are those which impugn the amending procedure laid down in the constitution.

Where for example- and the case at hand fits like a hand to a glove- constitutional matters that deal with Union matters ought to be decided by two third majority of both members from each side of the Isles and the Mainland. That is Mps from Isles must assent by two third majority and likewise mainland Mps do the same! What the Appeals Court stated is now the law of this nation which the House had willfully circumvented because the "Constitution amending procedure" that favoured CCM's stay in power would not have passed in the House as a result of CCM lacking those numbers as stipulated by the constitution. What we have is a travesty of justice to the people of Tanzania and my concern is when all our opposition representatives in the House also took part in tampering with those constitutional imperatives after they were bribed with a few slots in this unconstitutional commission headed by Warioba!

What we have now is Act No. 1 (Constitutional Review Act) of 2011 (special Bills) that the statutory method to pass it you need a quorum of at least 30 members of the House regardless of where they are hailing from between Mainland and Isles! In fact; under the House rules, all of those 30 MPs theoretically, may come from one side of the Union and still pass an act of parliament which intends to carry out fundamental and monumental sweeping constitutional reforms affecting both sides of the Union! If this is not unconstitutional then nothing can be and will ever be unconstitutional.

Asks yourself, part of the deal is to have two Houses of both Union government and the SMZ one to sit and pass the proposed constitution and then a referendum where are these constitutional aliens written in our constitution?

The rest of the issues you have raised require you to tread carefully on my early writings and with a little stretching of your brainpower the issues will become crystal clear.
 
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just citing one example- the seven Justices of the Appeals Court in Mtikila case made it abundantly clear that the custodian of the will of Tanzanian people lies with the House then the begging question has to be why should the proposed constitution circumvent the House and create an alien Appointments Commission that goes against the law as stated by the highest court of the land?

On page 29 of the said ruling the Court cautioned that disregarding clear provisions of the constitution would create anarchy. Again the law behind the Warioba Commission is not in the constitution therefore it is anarchy.


[FONT=&amp]However, we do not subscribe to his last sentence. The court can never[/FONT]


[FONT=&amp]ever disregard the clear words of a provision of the Constitution. That will[/FONT]

[FONT=&amp]cause anarchy.[/FONT]

[FONT=&amp]
[/FONT]
On page 41, the Appeals Court made a concession that courts of law are not custodians of the will of the people but the House then ask yourself where will the Chief Justice and aliens be part of the Appointment committee of the proposed election commission?
[FONT=&amp]We are definite that the Courts are not the custodian of the will of the[/FONT]

[FONT=&amp]pe[/FONT]
[FONT=&amp]ople. That is the property of elected Members of Parliament.[/FONT]
 
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On powers to change or amend the current constitution this is what the Appeals Court said in the mtikila (supra) decision.


Quoted from page 24-27 of the A.G v. Rev. Christopher Mtikila civil Appeal no. 45 of 2009.




[FONT=&amp]We admit two factual positions: One, Art 98(1) provides for the procedure of altering the Constitution and does so in the following terms:[/FONT]
[FONT=&amp]Parliament may enact law for altering [/FONT][FONT=&amp]any[/FONT][FONT=&amp] provision of this Constitution in accordance with the following principles: (Emphasis is ours.)[/FONT]
[FONT=&amp]Those principles are not relevant for this judgment.[/FONT]

[FONT=&amp]24[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]This Court said in Daudi Pete (supra) that the Kiswahili version of the[/FONT]

[FONT=&amp]Constitution is the authentic one. The Kiswahili version of Art 98(1)(a) and[/FONT]

[FONT=&amp](b) provide: "kubadilisha masharti yoyote ya Katiba hii".[/FONT]


[FONT=&amp]So, the Parliament can alter "any provision" of the Constitution. We wish to[/FONT]

[FONT=&amp]emphasize "any provision" of the Constitution. Altering has been defined[/FONT]

[FONT=&amp]by Art 98(2) to include:[/FONT]


[FONT=&amp]... modification or correction of those provisions or repeal and replacement of those provisions or the re-enactment or modification of the application of the provisions.[/FONT]

[FONT=&amp]We have no doubt in our minds that what the Eleventh Amendment did[/FONT]

[FONT=&amp]was altering Art 21 as explained above.[/FONT]


[FONT=&amp]The second matter is that Art 30(5) provides for the review of any Act of[/FONT]

[FONT=&amp]Parliament in these words:[/FONT]


[FONT=&amp]Where in any proceedings it is alleged that any law enacted or any action taken by the Government or any other authority abrogates or abridges any of the basic rights, freedoms and duties set out in Articles 12 to 29 of this Constitution, and the High Court is satisfied that the law or[/FONT]
[FONT=&amp]
[/FONT]

[FONT=&amp]25[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]action concerned, to the extent that it conflicts with this Constitution, is void or is inconsistent with this Constitution, then the High Court, if it deems fit, or if the circumstances or public interest so requires, instead of declaring that such law or action is void, shall have the power to decide to afford the Government or other authority concerned an opportunity to rectify the defect found in the law or action concerned an opportunity to rectify the defect found in the law or action concerned within such a period and such manner as the High Court shall determine, and such law or action shall be deemed to be valid until such time the defect is rectified or the period determined by the High Court lapses, whichever is the earlier.[/FONT]


[FONT=&amp]The question which arises is whether a law effecting a constitutional[/FONT]

[FONT=&amp]amendment according to Art 98(1) is like any other law passed by[/FONT]

[FONT=&amp]Parliament.[/FONT]
Quoted from page 27-29


[FONT=&amp]Mr. Masaju contended that a constitutional amendment law is not like any[/FONT]


[FONT=&amp]other law and that it is above ordinary law. That view was opposed by Mr.[/FONT]

[FONT=&amp]Rweyongeza who was supported by Prof Mwaikusa. However, both the DPP[/FONT]


[FONT=&amp]26[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]of Zanzibar and Prof Kabudi are of the same opinion as Mr. Masaju that a[/FONT]

[FONT=&amp]constitutional amendment law is not like any other law.[/FONT]

[FONT=&amp]The case of Kesavananda Bharat' v. State of Kerala, A. I. R. 1973 SC 1461[/FONT]

[FONT=&amp]has been heavily relied upon in the High Court. We are grateful to Prof[/FONT]

[FONT=&amp]Kabudi who pointed out that Justice KHANNA at p. 1903 stated:[/FONT]


[FONT=&amp]The word 'law' in Art 13(2) does not include amendment of the Constitution. It has reference to ordinary pieces of legislation.[/FONT]

[FONT=&amp]We are of the decided opinion that that is so. We say so because an[/FONT]

[FONT=&amp]ordinary legislation can be enacted by a simple majority of[/FONT]

[FONT=&amp]parliamentarians. That is not so with a constitutional amendment law[/FONT]

[FONT=&amp]whose enactment requires a specific number of votes. Art 98(1)(a) is loud[/FONT]

[FONT=&amp]and clear that:[/FONT]


[FONT=&amp]A Bill for an Act to alter any provisions of this Constitution (other than those relating to paragraphs (b) of this subarticle) or any provisions of any law specified in List One of the Second Schedule to this Constitution shall be supported by the votes of not less than two thirds of all the Members of Parliament.[/FONT]
[FONT=&amp]
[/FONT]

That paragraph speaks for itself but we have to point out that it is two-thirds of all the Members of Parliament and not just those sitting and voting. An ordinary law is not subjected to that stringent requirement.



Quoted from page 29-38

[FONT=&amp]The second question that follows is whether such a constitutional amendment can be reviewed by a court like any other law.[/FONT]


[FONT=&amp]Mr. Othman Masoud and Prof Kabudi were again at one with Mr. Masaju, that s. 27 of the Interpretation of Laws Act, Cap 1 [RE 2002] provides that an amending Act is to be construed as one with the amended Act and so Act No 34 of 1994 should be construed as one with the Constitution.[/FONT]


[FONT=&amp]According to them the cardinal principle of Constitutional interpretation is to read the entire Constitution as an entity. This Court said so in Julius I.F. Ndyanabo v. A. G., Civil Appeal No. 64 of 2001. There is, therefore, a need to harmonize the various articles of the constitution. This means that an article of a constitution cannot be struck out or declared unconstitutional.[/FONT]



[FONT=&amp]28[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]We agree with LUGAKINGIRA, J., as he then was, when he stated in Rev.[/FONT]

[FONT=&amp]Christopher Mtikila v. Attorny General[/FONT][FONT=&amp] [1995] TLR 31 at p. 66, that:[/FONT]


[FONT=&amp]What happens when a provision of the constitution enacting fundamental right appears to be in conflict with another provision in the Constitution? In that case the principle of harmonization has to be called in aid. The principle holds that the entire Constitution has to be read as integrated whole, no one particular provision destroying the other but each sustaining the other...[/FONT]

[FONT=&amp]The learned judge went further:[/FONT]

[FONT=&amp]If the balancing act should succeed, the Court is enjoined to give effect to all the contenting provisions. Otherwise, the court is enjoined to incline to the realisation of the fundamental rights and may for that purpose disregard even the clear words of a provision if the application will result in gross injustice.[/FONT]


[FONT=&amp]However, we do not subscribe to his last sentence. The court can never[/FONT]

[FONT=&amp]ever disregard the clear words of a provision of the Constitution. That will[/FONT]

[FONT=&amp]cause anarchy.[/FONT]


[FONT=&amp]29[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]As Prof. Kabudi submitted there are two exceptions to the general principle. The first exception is where there is a specific constitutional provision prohibiting the amendment of certain articles of the constitution or what are called entrenched provisions which are subject to immutable principles.[/FONT]


[FONT=&amp]We were given a number of examples of such provisions: Article 89 of the Constitution of France of 1958, Article 139 of the Constitution of Italy of 1947, Article 288 of the Constitution of Portugal of 1975, and Article 4 of the Constitution of Turkey of 1982. On the African soil there are Articles 174 to 178 of the Constitution of Algeria, Article 124 of the Constitution of Chad of 31st March 2006, and also the Constitutions of Malawi, Namibia and South Africa.[/FONT]


[FONT=&amp]May be we use the case of Turkey to drive home the point of what are entrenched provisions: Article 4 of the Constitution stipulates that: ... the provisions of article 1 of the Constitution, establishing[/FONT]

[FONT=&amp]the form of the state as a Republic, the provisions of article 2 on the characteristics of the Republic, and the provisions[/FONT]

[FONT=&amp]30[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]of article 3 shall not be amended, nor shall their amendment be proposed.[/FONT]

[FONT=&amp]Then Articles 2 provides as follows:[/FONT]

[FONT=&amp]The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of AtatOrk, and based on the fundamental tenets set forth in the Preamble.[/FONT]

[FONT=&amp]Article 3 reads as follows:[/FONT]

[FONT=&amp]The Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the "Independence March". Its capital is Ankara.[/FONT]


[FONT=&amp]Another illustration is Article 178 of The Constitution of Algeria which[/FONT]

[FONT=&amp]expressly prohibits constitutional amendments on:[/FONT]

[FONT=&amp](1) [/FONT][FONT=&amp]the republican nature of the State; [/FONT]
[FONT=&amp](2) [/FONT][FONT=&amp]the democratic order based on multi-party system; [/FONT]
[FONT=&amp](3) [/FONT][FONT=&amp]Islam as the religion of the State; [/FONT]
[FONT=&amp](4) [/FONT][FONT=&amp]Arabic as the national and official language; [/FONT]
[FONT=&amp]
[/FONT]
[FONT=&amp]31[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp](5) [/FONT][FONT=&amp]fundamental liberties, and citizen's rights; [/FONT]
[FONT=&amp](6) [/FONT][FONT=&amp]integrity of the national territory. [/FONT]



[FONT=&amp]Article 131 of the Constitution of Namibia has an interesting proviso. The[/FONT]

[FONT=&amp]marginal note reads: "Entrenchment of Fundamental Rights and[/FONT]

[FONT=&amp]Freedoms".[/FONT]


[FONT=&amp]No repeal or amendment of any of the provisions of Chapter 3, in so far as such repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that Chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect.[/FONT]


[FONT=&amp]In such Constitutions if the Constituent Assembly or Parliament purports to amend such entrenched provisions the courts have power to declare the amendments to be unconstitutional and strike them out.[/FONT]


[FONT=&amp]The second exception to the general rule is those jurisdictions where the[/FONT]

[FONT=&amp]courts claim to have implied powers to protect "basic structures". The[/FONT]

[FONT=&amp]argument is that the power of Parliament to amend the constitution is[/FONT]

[FONT=&amp]limited. Their lordships in their judgment which is the subject matter of this[/FONT]

[FONT=&amp]appeal said:[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]32[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]The Respondent contends that the amendments were constitutional because they were duly enacted by Parliament who have such powers under Article 98 (1) of Constitution. We think that is not the issue here. We accept the proposition that although the Parliament has powers to enact legislation, such powers are not limitless. As Professor Issa Shivji in his article "Constitutional Limits of Parliamentary Powers" published in the special edition of THE TANZANIA LAWYER October, 2003 put it on p. 93: "...[/FONT]

[FONT=&amp]the power to amend the Constitution is also limited. While it is true that parliament acting in Constituent capacity can amend any provision of the Constitution, it cannot do in a manner that would alter the basic structure or essential features of the Constitution.[/FONT]

[FONT=&amp]Prof. Shivji cited his authority for that proposition as the decision of the[/FONT]

[FONT=&amp]Supreme Court of India in Kesavananda v. State of Kerala (supra) which,[/FONT]

[FONT=&amp]as already said, featured predominantly in the High Court.[/FONT]
[FONT=&amp]Prof. Kabudi gave the historical background of the decision in[/FONT]

[FONT=&amp]Kesavananda.[/FONT][FONT=&amp] He said that it was a result of a struggle between the[/FONT]

[FONT=&amp]Executive and Parliament which started over the government's bid to effect[/FONT]

[FONT=&amp]land reforms soon after independence. Prof. Kabudi went on to cite[/FONT]

[FONT=&amp]33[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]pronouncements of Prime Minister Jawaharlal Nehru as evidence of the struggle. We do not think that it is necessary to delve into that for the purposes of this judgment except to say that at no time in the history of this country have we had sour relationship between the Executive and the Judiciary. That is extremely healthy and we wish to maintain it unless it is absolutely necessary to depart from it.[/FONT]


[FONT=&amp]Prof. Kabudi went further to point out that the Indian Supreme Court was inspired by the lectures of a German scholar, Prof. Dietrich Conrad, titled "Implied Limitations of the Amending Power" delivered in 1965 at the Faculty of Law of the Banaras Hindu University. That is testified to by Prof. Mahendra.P. Singh, Professor of Law at the University of Delhi in an obituary article, "Bridging Legal Traditions: Professor Dietrich Conrad, 1932-2001", published in the Frontline, Vol. 18 – Issue 18, Sep, 01-14, 2001, and also A.G. Noorani in his article "Behind the 'basic structure' doctrine: On India's debt to a German jurist, Professor Dietrich Conrad".[/FONT]


[FONT=&amp]We agree with Prof Kabudi that the doctrine is nebulous as there is no agreed yardstick of what constitutes basic structures of a constitution. In[/FONT]

[FONT=&amp]
[/FONT]
[FONT=&amp]34[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]this regard Prof. Shivji himself proposed some instances in his article stated[/FONT]

[FONT=&amp]that the Parliament cannot[/FONT][FONT=&amp] amend the 1977 Union Constitution in any of its provisions, it cannot amend it to change the nature of the two government union or establish life presidency or abolish the judiciary or turn the Parliamentary Standing Committee on Powers, Privileges and Immunities into a court of law. Such constitutional amendments would be beyond the powers of the Parliament even in its constituent capacity and therefore liable to be struck down because they alter the basic structure of the Constitution.[/FONT]


[FONT=&amp]We shall make our observations on this portion at a later stage. We may[/FONT]

[FONT=&amp]also point out that even Prof. Conrad himself conceded that there is no[/FONT]

[FONT=&amp]litmus test as to what constitutes basic structure. He wrote: in one of his[/FONT]

[FONT=&amp]essays carrying the title "Basic Structure of the Constitution and[/FONT]

[FONT=&amp]Constitutional Principles":[/FONT]


[FONT=&amp]Finally, a note of caution might not be out of place. The jurisprudence of principles has its own distinct dangers arising out of the flexibility and lack of precision of principles as well as their closeness to rhetorical flourish. This might invite a loosening of judicial discipline in interpreting the explicit provisions of the Constitution. ... Tightening of[/FONT]
[FONT=&amp]
[/FONT]
[FONT=&amp]35[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]judicial scrutiny would be necessary in order to diminish the dangers of opportunistic use of such principles as mere political catchwords.[/FONT]
[FONT=&amp]Let us now examine our Constitution of 1977. We have already seen that Art[/FONT]

[FONT=&amp]98(1) provides for the alteration of any provision of the Constitution, that is,[/FONT]

[FONT=&amp]there is no article which cannot be amended. In short there are no basic[/FONT]

[FONT=&amp]structures. What are provided for are safeguards. Under Art 98(1)(a)[/FONT]

[FONT=&amp]constitutional amendments require two-thirds vote of all Members of[/FONT]

[FONT=&amp]Parliament while Art 98(1)(b) goes further that:[/FONT]


[FONT=&amp]A Bill for an Act to alter any provisions of the Constitution or any provisions of any law relating to any of the matters specified in List Two of the Second Schedule to this Constitution shall be passed only if it is supported by the votes of not less than two-thirds of all Members of Parliament from Mainland Tanzania and not less than two-thirds of all Members of Parliament from Tanzania Zanzibar.[/FONT]


[FONT=&amp]List Two of the Second Schedule of the Constitution enumerates eight[/FONT]

[FONT=&amp]matters, to wit:[/FONT]

[FONT=&amp]1. [/FONT][FONT=&amp]The existence of the United Republic [/FONT]
[FONT=&amp]2. [/FONT][FONT=&amp]The existence of the Office of the President of the United Republic. [/FONT]
[FONT=&amp]3. [/FONT][FONT=&amp]The Authority of the Government of the United Republic. [/FONT]
[FONT=&amp]
[/FONT]
[FONT=&amp]36[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]4. [/FONT][FONT=&amp]The existence of the Parliament of the United Republic. [/FONT]
[FONT=&amp]5. [/FONT][FONT=&amp]The Authority of the Government of Zanzibar. [/FONT]
[FONT=&amp]6. [/FONT][FONT=&amp]The High Court of Zanzibar. [/FONT]
[FONT=&amp]7. [/FONT][FONT=&amp]The list of Union Matters. [/FONT]
[FONT=&amp]8. [/FONT][FONT=&amp]The number of Members of Parliament from Zanzibar. [/FONT]



[FONT=&amp]These eight matters could have been basic structures in the sense that Parliament cannot amend them. However, they are amendable once the procedure for amendment is followed. So, there is nothing like basic structures in our Constitution.[/FONT]
 
Rutashubanyuma

Rutashubanyuma

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Rutashubanyuma

Rutashubanyuma

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Joined Sep 24, 2010
169,609 715,069 280
On powers to change or amend the current constitution this is what the Appeals Court said in the mtikila (supra) decision.


Quoted from page 24-27 of the A.G v. Rev. Christopher Mtikila civil Appeal no. 45 of 2009.





[FONT=&amp]We admit two factual positions: One, Art 98(1) provides for the procedure of altering the Constitution and does so in the following terms:[/FONT]
[FONT=&amp]Parliament may enact law for altering [/FONT][FONT=&amp]any[/FONT][FONT=&amp] provision of this Constitution in accordance with the following principles: (Emphasis is ours.)[/FONT]
[FONT=&amp]Those principles are not relevant for this judgment.[/FONT]


[FONT=&amp]24[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]This Court said in Daudi Pete (supra) that the Kiswahili version of the[/FONT]

[FONT=&amp]Constitution is the authentic one. The Kiswahili version of Art 98(1)(a) and[/FONT]

[FONT=&amp](b) provide: "kubadilisha masharti yoyote ya Katiba hii".[/FONT]


[FONT=&amp]So, the Parliament can alter "any provision" of the Constitution. We wish to[/FONT]

[FONT=&amp]emphasize "any provision" of the Constitution. Altering has been defined[/FONT]

[FONT=&amp]by Art 98(2) to include:[/FONT]


[FONT=&amp]... modification or correction of those provisions or repeal and replacement of those provisions or the re-enactment or modification of the application of the provisions.[/FONT]

[FONT=&amp]We have no doubt in our minds that what the Eleventh Amendment did[/FONT]

[FONT=&amp]was altering Art 21 as explained above.[/FONT]

[FONT=&amp]The second matter is that Art 30(5) provides for the review of any Act of[/FONT]

[FONT=&amp]Parliament in these words:[/FONT]


[FONT=&amp]Where in any proceedings it is alleged that any law enacted or any action taken by the Government or any other authority abrogates or abridges any of the basic rights, freedoms and duties set out in Articles 12 to 29 of this Constitution, and the High Court is satisfied that the law or[/FONT]
[FONT=&amp]
[/FONT]

[FONT=&amp]25[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]action concerned, to the extent that it conflicts with this Constitution, is void or is inconsistent with this Constitution, then the High Court, if it deems fit, or if the circumstances or public interest so requires, instead of declaring that such law or action is void, shall have the power to decide to afford the Government or other authority concerned an opportunity to rectify the defect found in the law or action concerned an opportunity to rectify the defect found in the law or action concerned within such a period and such manner as the High Court shall determine, and such law or action shall be deemed to be valid until such time the defect is rectified or the period determined by the High Court lapses, whichever is the earlier.[/FONT]


[FONT=&amp]The question which arises is whether a law effecting a constitutional[/FONT]

[FONT=&amp]amendment according to Art 98(1) is like any other law passed by[/FONT]

[FONT=&amp]Parliament.[/FONT]
Quoted from page 27-29
[FONT=&amp]Mr. Masaju contended that a constitutional amendment law is not like any[/FONT]


[FONT=&amp]other law and that it is above ordinary law. That view was opposed by Mr.[/FONT]

[FONT=&amp]Rweyongeza who was supported by Prof Mwaikusa. However, both the DPP[/FONT]


[FONT=&amp]26[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]of Zanzibar and Prof Kabudi are of the same opinion as Mr. Masaju that a[/FONT]

[FONT=&amp]constitutional amendment law is not like any other law.[/FONT]





[FONT=&amp]The case of Kesavananda Bharat' v. State of Kerala, A. I. R. 1973 SC 1461[/FONT]

[FONT=&amp]has been heavily relied upon in the High Court. We are grateful to Prof[/FONT]

[FONT=&amp]Kabudi who pointed out that Justice KHANNA at p. 1903 stated:[/FONT]


[FONT=&amp]The word 'law' in Art 13(2) does not include amendment of the Constitution. It has reference to ordinary pieces of legislation.[/FONT]

[FONT=&amp]We are of the decided opinion that that is so. We say so because an[/FONT]

[FONT=&amp]ordinary legislation can be enacted by a simple majority of[/FONT]

[FONT=&amp]parliamentarians. That is not so with a constitutional amendment law[/FONT]

[FONT=&amp]whose enactment requires a specific number of votes. Art 98(1)(a) is loud[/FONT]

[FONT=&amp]and clear that:[/FONT]


[FONT=&amp]A Bill for an Act to alter any provisions of this Constitution (other than those relating to paragraphs (b) of this subarticle) or any provisions of any law specified in List One of the Second Schedule to this Constitution shall be supported by the votes of not less than two thirds of all the Members of Parliament.[/FONT]
[FONT=&amp]
[/FONT]

[FONT=&amp]That paragraph speaks for itself but we have to point out that it is two-thirds of all the Members of Parliament and not just those sitting and voting. An ordinary law is not subjected to that stringent requirement.[/FONT]



Quoted from page 29-38



[FONT=&amp]The second question that follows is whether such a constitutional amendment can be reviewed by a court like any other law?[/FONT]


[FONT=&amp]Mr. Othman Masoud and Prof Kabudi were again at one with Mr. Masaju, that s. 27 of the Interpretation of Laws Act, Cap 1 [RE 2002] provides that an amending Act is to be construed as one with the amended Act and so Act No 34 of 1994 should be construed as one with the Constitution.[/FONT]


[FONT=&amp]According to them the cardinal principle of Constitutional interpretation is to read the entire Constitution as an entity. This Court said so in Julius I.F. Ndyanabo v. A. G., Civil Appeal No. 64 of 2001. There is, therefore, a need to harmonize the various articles of the constitution. This means that an article of a constitution cannot be struck out or declared unconstitutional.[/FONT]
[FONT=&amp]
[/FONT]



[FONT=&amp]28[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]We agree with LUGAKINGIRA, J., as he then was, when he stated in Rev.[/FONT]

[FONT=&amp]Christopher Mtikila v. Attorny General[/FONT][FONT=&amp] [1995] TLR 31 at p. 66, that:[/FONT]


[FONT=&amp]What happens when a provision of the constitution enacting fundamental right appears to be in conflict with another provision in the Constitution? In that case the principle of harmonization has to be called in aid. The principle holds that the entire Constitution has to be read as integrated whole, no one particular provision destroying the other but each sustaining the other...[/FONT]

[FONT=&amp]The learned judge went further:[/FONT]

[FONT=&amp]If the balancing act should succeed, the Court is enjoined to give effect to all the contenting provisions. Otherwise, the court is enjoined to incline to the realisation of the fundamental rights and may for that purpose disregard even the clear words of a provision if the application will result in gross injustice.[/FONT]


[FONT=&amp]However, we do not subscribe to his last sentence. The court can never[/FONT]

[FONT=&amp]ever disregard the clear words of a provision of the Constitution. That will[/FONT]

[FONT=&amp]cause anarchy.[/FONT]


[FONT=&amp]29[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]As Prof. Kabudi submitted there are two exceptions to the general principle. The first exception is where there is a specific constitutional provision prohibiting the amendment of certain articles of the constitution or what are called entrenched provisions which are subject to immutable principles.[/FONT]


[FONT=&amp]We were given a number of examples of such provisions: Article 89 of the Constitution of France of 1958, Article 139 of the Constitution of Italy of 1947, Article 288 of the Constitution of Portugal of 1975, and Article 4 of the Constitution of Turkey of 1982. On the African soil there are Articles 174 to 178 of the Constitution of Algeria, Article 124 of the Constitution of Chad of 31st March 2006, and also the Constitutions of Malawi, Namibia and South Africa.[/FONT]


[FONT=&amp]May be we use the case of Turkey to drive home the point of what are entrenched provisions: Article 4 of the Constitution stipulates that: ... the provisions of article 1 of the Constitution, establishing[/FONT]

[FONT=&amp]the form of the state as a Republic, the provisions of article 2 on the characteristics of the Republic, and the provisions[/FONT]



[FONT=&amp]30[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]of article 3 shall not be amended, nor shall their amendment be proposed.[/FONT]



[FONT=&amp]Then Articles 2 provides as follows:[/FONT]


[FONT=&amp]The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of AtatOrk, and based on the fundamental tenets set forth in the Preamble.[/FONT]

[FONT=&amp]Article 3 reads as follows:[/FONT]

[FONT=&amp]The Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the "Independence March". Its capital is Ankara.[/FONT]


[FONT=&amp]Another illustration is Article 178 of The Constitution of Algeria which[/FONT]

[FONT=&amp]expressly prohibits constitutional amendments on:[/FONT]

[FONT=&amp](1) [/FONT][FONT=&amp]the republican nature of the State; [/FONT]
[FONT=&amp](2) [/FONT][FONT=&amp]the democratic order based on multi-party system; [/FONT]
[FONT=&amp](3) [/FONT][FONT=&amp]Islam as the religion of the State; [/FONT]
[FONT=&amp](4) [/FONT][FONT=&amp]Arabic as the national and official language; [/FONT]
[FONT=&amp]
[/FONT]
[FONT=&amp]31[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp](5) [/FONT][FONT=&amp]fundamental liberties, and citizen's rights; [/FONT]
[FONT=&amp](6) [/FONT][FONT=&amp]integrity of the national territory. [/FONT]



[FONT=&amp]Article 131 of the Constitution of Namibia has an interesting proviso. The[/FONT]

[FONT=&amp]marginal note reads: "Entrenchment of Fundamental Rights and[/FONT]

[FONT=&amp]Freedoms".[/FONT]


[FONT=&amp]No repeal or amendment of any of the provisions of Chapter 3, in so far as such repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that Chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect.[/FONT]


[FONT=&amp]In such Constitutions if the Constituent Assembly or Parliament purports to amend such entrenched provisions the courts have power to declare the amendments to be unconstitutional and strike them out.[/FONT]


[FONT=&amp]The second exception to the general rule is those jurisdictions where the[/FONT]

[FONT=&amp]courts claim to have implied powers to protect "basic structures". The[/FONT]

[FONT=&amp]argument is that the power of Parliament to amend the constitution is[/FONT]

[FONT=&amp]limited. Their lordships in their judgment which is the subject matter of this[/FONT]

[FONT=&amp]appeal said:[/FONT]

[FONT=&amp]
[/FONT]


[FONT=&amp]32[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]The Respondent contends that the amendments were constitutional because they were duly enacted by Parliament who have such powers under Article 98 (1) of Constitution. We think that is not the issue here. We accept the proposition that although the Parliament has powers to enact legislation, such powers are not limitless. As Professor Issa Shivji in his article "Constitutional Limits of Parliamentary Powers" published in the special edition of THE TANZANIA LAWYER October, 2003 put it on p. 93: "...[/FONT]

[FONT=&amp]the power to amend the Constitution is also limited. While it is true that parliament acting in Constituent capacity can amend any provision of the Constitution, it cannot do in a manner that would alter the basic structure or essential features of the Constitution.[/FONT]

[FONT=&amp]Prof. Shivji cited his authority for that proposition as the decision of the[/FONT]

[FONT=&amp]Supreme Court of India in Kesavananda v. State of Kerala (supra) which,[/FONT]

[FONT=&amp]as already said, featured predominantly in the High Court.[/FONT]





[FONT=&amp]Prof. Kabudi gave the historical background of the decision in[/FONT]

[FONT=&amp]Kesavananda.[/FONT][FONT=&amp] He said that it was a result of a struggle between the[/FONT]

[FONT=&amp]Executive and Parliament which started over the government's bid to effect[/FONT]

[FONT=&amp]land reforms soon after independence. Prof. Kabudi went on to cite[/FONT]

[FONT=&amp]
[/FONT]

[FONT=&amp]33[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]pronouncements of Prime Minister Jawaharlal Nehru as evidence of the struggle. We do not think that it is necessary to delve into that for the purposes of this judgment except to say that at no time in the history of this country have we had sour relationship between the Executive and the Judiciary. That is extremely healthy and we wish to maintain it unless it is absolutely necessary to depart from it.[/FONT]


[FONT=&amp]Prof. Kabudi went further to point out that the Indian Supreme Court was inspired by the lectures of a German scholar, Prof. Dietrich Conrad, titled "Implied Limitations of the Amending Power" delivered in 1965 at the Faculty of Law of the Banaras Hindu University. That is testified to by Prof. Mahendra.P. Singh, Professor of Law at the University of Delhi in an obituary article, "Bridging Legal Traditions: Professor Dietrich Conrad, 1932-2001", published in the Frontline, Vol. 18 – Issue 18, Sep, 01-14, 2001, and also A.G. Noorani in his article "Behind the 'basic structure' doctrine: On India's debt to a German jurist, Professor Dietrich Conrad".[/FONT]


[FONT=&amp]We agree with Prof Kabudi that the doctrine is nebulous as there is no agreed yardstick of what constitutes basic structures of a constitution. In[/FONT]

[FONT=&amp]
[/FONT]
[FONT=&amp]34[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]this regard Prof. Shivji himself proposed some instances in his article stated[/FONT]

[FONT=&amp]that the Parliament cannot:[/FONT]


[FONT=&amp].. amend the 1977 Union Constitution in any of its provisions, it cannot amend it to change the nature of the two government union or establish life presidency or abolish the judiciary or turn the Parliamentary Standing Committee on Powers, Privileges and Immunities into a court of law. Such constitutional amendments would be beyond the powers of the Parliament even in its constituent capacity and therefore liable to be struck down because they alter the basic structure of the Constitution.[/FONT]


[FONT=&amp]We shall make our observations on this portion at a later stage. We may[/FONT]

[FONT=&amp]also point out that even Prof. Conrad himself conceded that there is no[/FONT]

[FONT=&amp]litmus test as to what constitutes basic structure. He wrote: in one of his[/FONT]

[FONT=&amp]essays carrying the title "Basic Structure of the Constitution and[/FONT]

[FONT=&amp]Constitutional Principles":[/FONT]


[FONT=&amp]Finally, a note of caution might not be out of place. The jurisprudence of principles has its own distinct dangers arising out of the flexibility and lack of precision of principles as well as their closeness to rhetorical flourish. This might invite a loosening of judicial discipline in interpreting the explicit provisions of the Constitution. ... Tightening of[/FONT]
[FONT=&amp]
[/FONT]
[FONT=&amp]35[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]judicial scrutiny would be necessary in order to diminish the dangers of opportunistic use of such principles as mere political catchwords.[/FONT]
[FONT=&amp]Let us now examine our Constitution of 1977. We have already seen that Art[/FONT]

[FONT=&amp]98(1) provides for the alteration of any provision of the Constitution, that is,[/FONT]

[FONT=&amp]there is no article which cannot be amended. In short there are no basic[/FONT]

[FONT=&amp]structures. What are provided for are safeguards. Under Art 98(1)(a)[/FONT]

[FONT=&amp]constitutional amendments require two-thirds vote of all Members of[/FONT]

[FONT=&amp]Parliament while Art 98(1)(b) goes further that:[/FONT]


[FONT=&amp]A Bill for an Act to alter any provisions of the Constitution or any provisions of any law relating to any of the matters specified in List Two of the Second Schedule to this Constitution shall be passed only if it is supported by the votes of not less than two-thirds of all Members of Parliament from Mainland Tanzania and not less than two-thirds of all Members of Parliament from Tanzania Zanzibar.[/FONT]


[FONT=&amp]List Two of the Second Schedule of the Constitution enumerates eight[/FONT]

[FONT=&amp]matters, to wit:[/FONT]

[FONT=&amp]1. [/FONT][FONT=&amp]The existence of the United Republic [/FONT]
[FONT=&amp]2. [/FONT][FONT=&amp]The existence of the Office of the President of the United Republic. [/FONT]
[FONT=&amp]3. [/FONT][FONT=&amp]The Authority of the Government of the United Republic. [/FONT]
[FONT=&amp]
[/FONT]
[FONT=&amp]36[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]4. [/FONT][FONT=&amp]The existence of the Parliament of the United Republic. [/FONT]
[FONT=&amp]5. [/FONT][FONT=&amp]The Authority of the Government of Zanzibar. [/FONT]
[FONT=&amp]6. [/FONT][FONT=&amp]The High Court of Zanzibar. [/FONT]
[FONT=&amp]7. [/FONT][FONT=&amp]The list of Union Matters. [/FONT]
[FONT=&amp]8. [/FONT][FONT=&amp]The number of Members of Parliament from Zanzibar. [/FONT]



[FONT=&amp]These eight matters could have been basic structures in the sense that Parliament cannot amend them. However, they are amendable once the procedure for amendment is followed. So, there is nothing like basic structures in our Constitution
.[/FONT]
it is obvious that the ordinary law behind the constitutional review was derived at the cost of the existing constitution and out of political expedience in a manner that will CCM in control of the amending of the existing constitution
 
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Rutashubanyuma

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On powers to change or amend the current constitution this is what the Appeals Court said in the mtikila (supra) decision.


Quoted from page 24-27 of the A.G v. Rev. Christopher Mtikila civil Appeal no. 45 of 2009.





[FONT=&amp]We admit two factual positions: One, Art 98(1) provides for the procedure of altering the Constitution and does so in the following terms:[/FONT]
[FONT=&amp]Parliament may enact law for altering [/FONT][FONT=&amp]any[/FONT][FONT=&amp] provision of this Constitution in accordance with the following principles: (Emphasis is ours.)[/FONT]
[FONT=&amp]Those principles are not relevant for this judgment.[/FONT]


[FONT=&amp]24[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]This Court said in Daudi Pete (supra) that the Kiswahili version of the[/FONT]

[FONT=&amp]Constitution is the authentic one. The Kiswahili version of Art 98(1)(a) and[/FONT]

[FONT=&amp](b) provide: "kubadilisha masharti yoyote ya Katiba hii".[/FONT]



[FONT=&amp]So, the Parliament can alter "any provision" of the Constitution. We wish to[/FONT]

[FONT=&amp]emphasize "any provision" of the Constitution. Altering has been defined[/FONT]

[FONT=&amp]by Art 98(2) to include:[/FONT]


[FONT=&amp]... modification or correction of those provisions or repeal and replacement of those provisions or the re-enactment or modification of the application of the provisions.[/FONT]

[FONT=&amp]We have no doubt in our minds that what the Eleventh Amendment did[/FONT]

[FONT=&amp]was altering Art 21 as explained above.[/FONT]


[FONT=&amp]The second matter is that Art 30(5) provides for the review of any Act of[/FONT]

[FONT=&amp]Parliament in these words:[/FONT]


[FONT=&amp]Where in any proceedings it is alleged that any law enacted or any action taken by the Government or any other authority abrogates or abridges any of the basic rights, freedoms and duties set out in Articles 12 to 29 of this Constitution, and the High Court is satisfied that the law or[/FONT]
[FONT=&amp]
[/FONT]

[FONT=&amp]25[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]action concerned, to the extent that it conflicts with this Constitution, is void or is inconsistent with this Constitution, then the High Court, if it deems fit, or if the circumstances or public interest so requires, instead of declaring that such law or action is void, shall have the power to decide to afford the Government or other authority concerned an opportunity to rectify the defect found in the law or action concerned an opportunity to rectify the defect found in the law or action concerned within such a period and such manner as the High Court shall determine, and such law or action shall be deemed to be valid until such time the defect is rectified or the period determined by the High Court lapses, whichever is the earlier.[/FONT]


[FONT=&amp]The question which arises is whether a law effecting a constitutional[/FONT]

[FONT=&amp]amendment according to Art 98(1) is like any other law passed by[/FONT]

[FONT=&amp]Parliament.[/FONT]

Quoted from page 27-29

[FONT=&amp]Mr. Masaju contended that a constitutional amendment law is not like any[/FONT]


[FONT=&amp]other law and that it is above ordinary law. That view was opposed by Mr.[/FONT]

[FONT=&amp]Rweyongeza who was supported by Prof Mwaikusa. However, both the DPP[/FONT]


[FONT=&amp]26[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]of Zanzibar and Prof Kabudi are of the same opinion as Mr. Masaju that a[/FONT]

[FONT=&amp]constitutional amendment law is not like any other law.[/FONT]


[FONT=&amp]The case of Kesavananda Bharat' v. State of Kerala, A. I. R. 1973 SC 1461[/FONT]

[FONT=&amp]has been heavily relied upon in the High Court. We are grateful to Prof[/FONT]

[FONT=&amp]Kabudi who pointed out that Justice KHANNA at p. 1903 stated:[/FONT]


[FONT=&amp]The word 'law' in Art 13(2) does not include amendment of the Constitution. It has reference to ordinary pieces of legislation.[/FONT]

[FONT=&amp]We are of the decided opinion that that is so. We say so because an[/FONT]

[FONT=&amp]ordinary legislation can be enacted by a simple majority of[/FONT]

[FONT=&amp]parliamentarians. That is not so with a constitutional amendment law[/FONT]

[FONT=&amp]whose enactment requires a specific number of votes. Art 98(1)(a) is loud[/FONT]

[FONT=&amp]and clear that:[/FONT]


[FONT=&amp]A Bill for an Act to alter any provisions of this Constitution (other than those relating to paragraphs (b) of this subarticle) or any provisions of any law specified in List One of the Second Schedule to this Constitution shall be supported by the votes of not less than two thirds of all the Members of Parliament.[/FONT]

[FONT=&amp]That paragraph speaks for itself but we have to point out that it is two-thirds of all the Members of Parliament and not just those sitting and voting. An ordinary law is not subjected to that stringent requirement.[/FONT]

Quoted from page 29-38


[FONT=&amp]The second question that follows is whether such a constitutional amendment can be reviewed by a court like any other law.[/FONT]


[FONT=&amp]Mr. Othman Masoud and Prof Kabudi were again at one with Mr. Masaju, that s. 27 of the Interpretation of Laws Act, Cap 1 [RE 2002] provides that an amending Act is to be construed as one with the amended Act and so Act No 34 of 1994 should be construed as one with the Constitution.[/FONT]


[FONT=&amp]According to them the cardinal principle of Constitutional interpretation is to read the entire Constitution as an entity. This Court said so in Julius I.F. Ndyanabo v. A. G., Civil Appeal No. 64 of 2001. There is, therefore, a need to harmonize the various articles of the constitution. This means that an article of a constitution cannot be struck out or declared unconstitutional.[/FONT]
[FONT=&amp]
[/FONT]



[FONT=&amp]28[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]We agree with LUGAKINGIRA, J., as he then was, when he stated in Rev.[/FONT]

[FONT=&amp]Christopher Mtikila v. Attorny General[/FONT][FONT=&amp] [1995] TLR 31 at p. 66, that:[/FONT]


[FONT=&amp]What happens when a provision of the constitution enacting fundamental right appears to be in conflict with another provision in the Constitution? In that case the principle of harmonization has to be called in aid. The principle holds that the entire Constitution has to be read as integrated whole, no one particular provision destroying the other but each sustaining the other...[/FONT]

[FONT=&amp]The learned judge went further:[/FONT]

[FONT=&amp]If the balancing act should succeed, the Court is enjoined to give effect to all the contenting provisions. Otherwise, the court is enjoined to incline to the realisation of the fundamental rights and may for that purpose disregard even the clear words of a provision if the application will result in gross injustice.[/FONT]


[FONT=&amp]However, we do not subscribe to his last sentence. The court can never[/FONT]

[FONT=&amp]ever disregard the clear words of a provision of the Constitution. That will[/FONT]

[FONT=&amp]cause anarchy.[/FONT]

[FONT=&amp]
[/FONT]






[FONT=&amp]29[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]As Prof. Kabudi submitted there are two exceptions to the general principle. The first exception is where there is a specific constitutional provision prohibiting the amendment of certain articles of the constitution or what are called entrenched provisions which are subject to immutable principles.[/FONT]





[FONT=&amp]We were given a number of examples of such provisions: Article 89 of the Constitution of France of 1958, Article 139 of the Constitution of Italy of 1947, Article 288 of the Constitution of Portugal of 1975, and Article 4 of the Constitution of Turkey of 1982. On the African soil there are Articles 174 to 178 of the Constitution of Algeria, Article 124 of the Constitution of Chad of 31st March 2006, and also the Constitutions of Malawi, Namibia and South Africa.[/FONT]


[FONT=&amp]May be we use the case of Turkey to drive home the point of what are entrenched provisions: Article 4 of the Constitution stipulates that: ... the provisions of article 1 of the Constitution, establishing[/FONT]

[FONT=&amp]the form of the state as a Republic, the provisions of article 2 on the characteristics of the Republic, and the provisions[/FONT]

[FONT=&amp]
[/FONT]



[FONT=&amp]30[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]of article 3 shall not be amended, nor shall their amendment be proposed.[/FONT]



[FONT=&amp]Then Articles 2 provides as follows:[/FONT]


[FONT=&amp]The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of AtatOrk, and based on the fundamental tenets set forth in the Preamble.[/FONT]

[FONT=&amp]Article 3 reads as follows:[/FONT]

[FONT=&amp]The Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the "Independence March". Its capital is Ankara.[/FONT]


[FONT=&amp]Another illustration is Article 178 of The Constitution of Algeria which[/FONT]

[FONT=&amp]expressly prohibits constitutional amendments on:[/FONT]

[FONT=&amp](1) [/FONT][FONT=&amp]the republican nature of the State; [/FONT]
[FONT=&amp](2) [/FONT][FONT=&amp]the democratic order based on multi-party system; [/FONT]
[FONT=&amp](3) [/FONT][FONT=&amp]Islam as the religion of the State; [/FONT]
[FONT=&amp](4) [/FONT][FONT=&amp]Arabic as the national and official language; [/FONT]
[FONT=&amp]
[/FONT]
[FONT=&amp]31[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp](5) [/FONT][FONT=&amp]fundamental liberties, and citizen's rights; [/FONT]
[FONT=&amp](6) [/FONT][FONT=&amp]integrity of the national territory. [/FONT]



[FONT=&amp]Article 131 of the Constitution of Namibia has an interesting proviso. The[/FONT]

[FONT=&amp]marginal note reads: "Entrenchment of Fundamental Rights and[/FONT]

[FONT=&amp]Freedoms".[/FONT]


[FONT=&amp]No repeal or amendment of any of the provisions of Chapter 3, in so far as such repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that Chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect.[/FONT]


[FONT=&amp]In such Constitutions if the Constituent Assembly or Parliament purports to amend such entrenched provisions the courts have power to declare the amendments to be unconstitutional and strike them out.[/FONT]


[FONT=&amp]The second exception to the general rule is those jurisdictions where the[/FONT]

[FONT=&amp]courts claim to have implied powers to protect "basic structures". The[/FONT]

[FONT=&amp]argument is that the power of Parliament to amend the constitution is[/FONT]

[FONT=&amp]limited. Their lordships in their judgment which is the subject matter of this[/FONT]

[FONT=&amp]appeal said:[/FONT]

[FONT=&amp]
[/FONT]


[FONT=&amp]32[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]The Respondent contends that the amendments were constitutional because they were duly enacted by Parliament who have such powers under Article 98 (1) of Constitution. We think that is not the issue here. We accept the proposition that although the Parliament has powers to enact legislation, such powers are not limitless. As Professor Issa Shivji in his article "Constitutional Limits of Parliamentary Powers" published in the special edition of THE TANZANIA LAWYER October, 2003 put it on p. 93: "...[/FONT]

[FONT=&amp]the power to amend the Constitution is also limited. While it is true that parliament acting in Constituent capacity can amend any provision of the Constitution, it cannot do in a manner that would alter the basic structure or essential features of the Constitution.[/FONT]

[FONT=&amp]Prof. Shivji cited his authority for that proposition as the decision of the[/FONT]

[FONT=&amp]Supreme Court of India in Kesavananda v. State of Kerala (supra) which,[/FONT]

[FONT=&amp]as already said, featured predominantly in the High Court.[/FONT]





[FONT=&amp]Prof. Kabudi gave the historical background of the decision in[/FONT]

[FONT=&amp]Kesavananda.[/FONT][FONT=&amp] He said that it was a result of a struggle between the[/FONT]

[FONT=&amp]Executive and Parliament which started over the government's bid to effect[/FONT]

[FONT=&amp]land reforms soon after independence. Prof. Kabudi went on to cite[/FONT]

[FONT=&amp]
[/FONT]

[FONT=&amp]33[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]pronouncements of Prime Minister Jawaharlal Nehru as evidence of the struggle. We do not think that it is necessary to delve into that for the purposes of this judgment except to say that at no time in the history of this country have we had sour relationship between the Executive and the Judiciary. That is extremely healthy and we wish to maintain it unless it is absolutely necessary to depart from it.[/FONT]


[FONT=&amp]Prof. Kabudi went further to point out that the Indian Supreme Court was inspired by the lectures of a German scholar, Prof. Dietrich Conrad, titled "Implied Limitations of the Amending Power" delivered in 1965 at the Faculty of Law of the Banaras Hindu University. That is testified to by Prof. Mahendra.P. Singh, Professor of Law at the University of Delhi in an obituary article, "Bridging Legal Traditions: Professor Dietrich Conrad, 1932-2001", published in the Frontline, Vol. 18 – Issue 18, Sep, 01-14, 2001, and also A.G. Noorani in his article "Behind the 'basic structure' doctrine: On India's debt to a German jurist, Professor Dietrich Conrad".[/FONT]


[FONT=&amp]We agree with Prof Kabudi that the doctrine is nebulous as there is no agreed yardstick of what constitutes basic structures of a constitution. In[/FONT]

[FONT=&amp]
[/FONT]
[FONT=&amp]34[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]this regard Prof. Shivji himself proposed some instances in his article stated[/FONT]

[FONT=&amp]that the Parliament cannot:[/FONT]


[FONT=&amp].. amend the 1977 Union Constitution in any of its provisions, it cannot amend it to change the nature of the two government union or establish life presidency or abolish the judiciary or turn the Parliamentary Standing Committee on Powers, Privileges and Immunities into a court of law. Such constitutional amendments would be beyond the powers of the Parliament even in its constituent capacity and therefore liable to be struck down because they alter the basic structure of the Constitution.[/FONT]


[FONT=&amp]We shall make our observations on this portion at a later stage. We may[/FONT]

[FONT=&amp]also point out that even Prof. Conrad himself conceded that there is no[/FONT]

[FONT=&amp]litmus test as to what constitutes basic structure. He wrote: in one of his[/FONT]

[FONT=&amp]essays carrying the title "Basic Structure of the Constitution and[/FONT]

[FONT=&amp]Constitutional Principles":[/FONT]


[FONT=&amp]Finally, a note of caution might not be out of place. The jurisprudence of principles has its own distinct dangers arising out of the flexibility and lack of precision of principles as well as their closeness to rhetorical flourish. This might invite a loosening of judicial discipline in interpreting the explicit provisions of the Constitution. ... Tightening of[/FONT]
[FONT=&amp]
[/FONT]
[FONT=&amp]35[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]judicial scrutiny would be necessary in order to diminish the dangers of opportunistic use of such principles as mere political catchwords.[/FONT]
[FONT=&amp]Let us now examine our Constitution of 1977. We have already seen that Art[/FONT]

[FONT=&amp]98(1) provides for the alteration of any provision of the Constitution, that is,[/FONT]

[FONT=&amp]there is no article which cannot be amended. In short there are no basic[/FONT]

[FONT=&amp]structures. What are provided for are safeguards. Under Art 98(1)(a)[/FONT]

[FONT=&amp]constitutional amendments require two-thirds vote of all Members of[/FONT]

[FONT=&amp]Parliament while Art 98(1)(b) goes further that:[/FONT]


[FONT=&amp]A Bill for an Act to alter any provisions of the Constitution or any provisions of any law relating to any of the matters specified in List Two of the Second Schedule to this Constitution shall be passed only if it is supported by the votes of not less than two-thirds of all Members of Parliament from Mainland Tanzania and not less than two-thirds of all Members of Parliament from Tanzania Zanzibar.[/FONT]


[FONT=&amp]List Two of the Second Schedule of the Constitution enumerates eight[/FONT]

[FONT=&amp]matters, to wit:[/FONT]

[FONT=&amp]1. [/FONT][FONT=&amp]The existence of the United Republic [/FONT]
[FONT=&amp]2. [/FONT][FONT=&amp]The existence of the Office of the President of the United Republic. [/FONT]
[FONT=&amp]3. [/FONT][FONT=&amp]The Authority of the Government of the United Republic. [/FONT]
[FONT=&amp]
[/FONT]
[FONT=&amp]36[/FONT]

[FONT=&amp]
[/FONT] [FONT=&amp]4. [/FONT][FONT=&amp]The existence of the Parliament of the United Republic. [/FONT]
[FONT=&amp]5. [/FONT][FONT=&amp]The Authority of the Government of Zanzibar. [/FONT]
[FONT=&amp]6. [/FONT][FONT=&amp]The High Court of Zanzibar. [/FONT]
[FONT=&amp]7. [/FONT][FONT=&amp]The list of Union Matters. [/FONT]
[FONT=&amp]8. [/FONT][FONT=&amp]The number of Members of Parliament from Zanzibar. [/FONT]



[FONT=&amp]These eight matters could have been basic structures in the sense that Parliament cannot amend them. However, they are amendable once the procedure for amendment is followed. So, there is nothing like basic structures in our Constitution.[/FONT]
Sidestepping the current constitution in order to appease parochial political interests has failed to clothe this constitutional amending processing with the legitimacy it desperately require..........
 
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The Court of Appeal stated in the same ruling that the high Court has power to annul laws which offends clear provisions of the Constitution as in this case of the Warioba Commission:-

Read what they had to say:-


Quoted from page 42-44


So, if there are two or more articles or portions of articles which cannot be
harmonized, then it is Parliament which will deal with the matter and not
the Court unless that power is expressly given by the Constitution, which,
we have categorically said, it has not.

However, situations can arise where the High Court and this Court can
nullify a constitutional provision on the ground that it is unconstitutional in
the sense that it was not enacted as provided for by Art. 98. An example is
where a constitutional amendment is challenged on the grounds that it did
not obtain the prerequisite number of votes according to Art. 98(1)(a). We
already pointed out earlier that generally a constitutional amendment
requires the support of a two-thirds majority and under Art 98(1)(b) the
support of two-thirds majority of all the Members of Parliament from
Zanzibar and all Members of Parliament from the Mainland. If such a
challenge is sustained then the court might have to find that the article has
not been enacted in accordance with the constitutional provisions and is,
therefore, unconstitutional.

In such a situation the courts will be performing its constitutional function
of maintaining checks and balances.
 
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I am only emphasizing that the constitutional amending procedure well emanated in our constitution was not followed rendering the whole constitutional amending act passed by the parliament unconstitutional and so is the Warioba commission.
On my next discussion I will discuss selected issues on the proposed constitution and why it will not abate the major problems behind our socioeconomic stagnation.
 
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The real reason why we need a new constitutional order it is because the current setup has failed to address major socioeconomic issues such official graft, massive poverty, illteracy and incurable diseases.

Here is my recommendation on how such a bad constitutional proposal can be made a better social contract for all of us. For purposes of widening the readership I will put them in Kiswahili as much as it is feasible:-



MAONI YANGU YA RASIMU YA KATIBA.


Sehemu ya kwanza.
2) Eneo la Jamhuri ya Muungano wa Tanzania.
Ø Siyo sahihi kuliita eneo la Tanganyika kuwa Tanzania bara na huku Zanzibar ikiitwa Zanzibar. Mwanzoni imewekwa vyema kuwa nchi zilizoungana ni zipi sasa yawaje Tanzania bara izuke tu kuanzia hapa?
Ø Kimsingi na kisheria hakuna nchi ambayo inaitwa Tanzania bara kama vile hakuna nchi inayoitwa Tanzania visiwani hadi baada ya kuwepo kwa muungano wa nchi za Tanganyika na Zanzibar. Tume wasiwe wepesi kuufuta utanganyika na huku wakawa wazito kuufuta Uzanzibar.
4) (3) Hakuna lugha za alama na nukta za tundu ila kuna maandishi ya mawasiliano ya alama na viashiria stahiki.

5) Kwenye tunu za taifa kuna uhaja wa kuongeza tunu za usawa na ushindani.
7)(i) Penye neon dhulma lirekebishwe na kusomeka dhuluma.

9) (3) Lengo la kuisambaza katiba hii siyo tu kuzuia uhaini bali kuwashirikisha raia wote kuifahamu na kuitetea katiba yao wote. Nionavyo manufaa ya usambazaji tajwa yasiwe kwa minajili ya makosa ya uhaini tu bali kwa manufaa yaliyoainishwa kwenye Ibara ndogo ya 6 (a) ya rasimu hii.

10) (2) Serikali inapaswa kupewa vipindi maalumu vya kutoa taarifa ya utekelezaji tajwa badala ya kuachiwa nafasi ya “siyo chini ya mara moja.” Ushauri wangu serikali iwajibishwe kutoa taarifa kila baada ya miezi mitatu juu ya utekelezaji wa malengo ya kitaifa yaliyoainishwa kwenye rasimu hii.

11) (1) kwenye neon utengamanowa lisomeke utengamano wa.

Vile vile aya na. 11 (1) ninashauri isomeke kama ifuatavyo:-
“Lengo kuu la katiba hii ni kulinda, kuimarisha, kudumisha na kuendeleza udugu, amani, umoja na utengamano wa kitaifa wa wananchi wa Jamhuri ya Muungano kwa kuzingatia ustawi wa wananchi na kujenga Taifa huru lenye demokrasia, haki, utawala bora na kujitegemea.”

Nimeongeza maneno ya “kuendeleza” kwa sababu “kulinda” na kudumisha” kuna shabihiana sana na lengo pia lazima liwe “kuendeleza” kwa maana ya kuboresha malengo tajwa.
Vile vile aya na. 11) (2) nimeirekebisha kama ifuatavyo:-

“Bila ya kuathiri masharti yaliyopo kwenye Ibara ndogo ya na. 11 (1), lengo hilo kuu litaboreshwa na kuimarishwa………”

Swala hapo ni kuongeza thamani ya lengo kwa maana ya “kuliboresha” baada ya kuliendeleza kwenye Ibara ndogo ya 11(1) kama nilivyoshauri hapo awali.
11) (3) (a) (i) Penye neno “dhulma” weka “dhuluma”.

11) (3) (c) Siyo kazi ya serikali kuwaletea wananchi wake maendeleo bali ni kazi ya serikali kuwahamasisha kwa kuwajengea mazingira bora kwa wananchi wake wajiletee maendeleo yao kulingana na mahitaji ya dira na dhima ya kitaifa. Hivyo kutokana na mapungufu tajwa nimeisahihisha aya hii na ninashauri isomeke ifuatavyo:-
“Kuwajengea wananchi mazingira bora ya kuushinda umasikini.”
11) (3)(c) (iii) Nyanja za uzalishaji zipo nyingi zaidi ya ukulima, ufugaji na uvuvi. Hivyo ninashauri kutowabagua wazalishaji wengineo kwa kutowataja juu ya umuhimu wao wa kuwa na vyombo vya uwakilishi na kwa kutofanya hivyo ni kuwabagua. Hivyo basi, kuongeza maneno yafuatayo mwishoni mwa ayahii:-
“……………..na wazalishaji wengineo wote.”

Aya na. 11) (3) (iii)- (vi) maneno “Kuweka mazingira bora………..” yabadilishwe na kusomeka “Kujenga mazingira bora…………” Kifupi hatuweki mazingira bora bali tunayajenga mazingira bora.
Aya Na. 11 (3) (d) (iii) Ina utata mkubwa. Kwanini tugangamale kuendeleza Kiswahili tu huku aya Na. 11 (3) (d) (i) tumenuia kuendeleza pia urithi wetu ambao unajumuisha lugha zetu za asili? Hivi kwanini tunakuwa wepesi sana kujikana sisi na historia yetu. Tusisahau kabla ya Kiswahili tuna makabila yetu na lugha zetu za asili ambazo pia ni chimbuko kubwa la kuendeleza Kiswahili. Msimamo huu utatusaidia sana kupunguza utegemezi wa lugha za kigeni hususani kingeeza kama chimbuko la uazimaji wa misamiati ya lugha ya Kiswahili. Kutokana na mantiki nilizozibaini awali ninashauri ayah ii isomeke kama ifuatavyo:-
“Kutambua, kulinda na kuendeleza lugha ya Kiswahili na lugha zetu za asili na amabazo ndiyo chimbuko la ukuzaji wa lugha wa misamiati, matamshi na ufahamu/uelewa wa lugha ya kiswahili na…..”

Ibara ya 12- Penye neno “nainazingatia” isomeke na “inazingatia”.
Ibara Na. 13 ina mapungufu makubwa kwa kushindwa kuondoa kero tulizonazo ambazo ni pamoja na viongozi kutozuiwa kujirundikia madaraka, kuhodhi madaraka kwenye nyadhifa ambazo zinatoa mianya ya migongano ya kimihimili ya kikatiba ambayo ni mahakama, serikali na Bunge.


Ibara Na. 13 (2) ninapendekeza irekebishwe kama ifuatavyo:-

(a) Uteuzi kwa misingi ya uwazi, shindanishi, shirikishi kwa umma na teuzi tajwa kuzingatia sifa, uwezo, mwenendo wa mteule kwenye chaguzi ambazo ni huru na haki.”
(b) (Badala ya …….au vigezo vingine visivyo sahihi.”) Isomeke kama ifuatavyo:- “…au vigezo vinginevyo vinavyonyima haki kutendeka.”

(c) ……..(Ninashauri kuongeza maneno katika kifungu cha (iii) na kisomeke kama ifuatavyo:- )

“Endapo mazingira ya masilahi binafsi yenye mgongano na yale ya umma yatathibitika mtumishi tajwa wa umma atapaswa ajitoe kwenye nafasi ya utumishi wa umma ikiwa ni sehemu ya uwajibikaji wake katika wadhifa husika.”


(d) …(Ninashauri kuongeza maneno hapa na isomeke kama ifuatavyo:)

“Uwajibikaji, uwazi na ukweli kwa umma katika kufanya uamuzi na vitendo, na…….”
Lengo hapa ni kuonyesha uwajibikaji abao hauko wazi na kuwa wa kweli hauna tija yoyote kwa taifa hili.
Ibara ya 15(2) (c) ninashauri iongezwe na isomeke kama ifuatavyo:-
“ Mtumishi wa umma hataruhusiwa kuwa na uraia zaidi ya uraia mmoja wa Jamhuri ya Muungano wa Tanzania.”
 

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