Fundamental Principles of Constitutional Law

The Preamble to the Constitution is a brief introductory statement of the Constitution’s fundamental purposes and guiding principles. It states in general terms, and it has been referred to it as reliable evidence of intentions of the constitution framers regarding the Constitution’s meaning and what they hoped the Constitution would achieve. In other words it can be referred as a preliminary statement or series of statements explanation containing reasons which made the passing or drafting of the constitution, the purpose of the Government and the direction of the constitution.

It is through this part where clearly shown by whom the Constitution was framed usually it is shown by the words “WE THE PEOPLE….. ”. Moreover it gives authority and legitimacy to the constitution showing that the named constitution is the result of the consent of the people and no other authorities. It is in this part Tanzania constitution provides matters like independency of judiciary, equality, freedom, Freedom, sovereignty of the people etc However despite its importance in the constitution the basic principles of legal interpretation states that the preamble does not have legal force hence cannot be relied in any court of law.

Preamble is a declaration of our belief in these rights it is no more than just that. The rights themselves do not become enacted thereby such that they could be enforced under the constitution. in other words, one cannot bring a complaint under the constitution in respect of violation of any of the rights as enumerated in the pre-amble Fundamental Objectives and Directive Principles of State Policy. The Fundamental objectives and directive Principles of State Policy refers to the way in which the government aims to reach in its daily activities.

This part is very useful in constitution interpretation where by courts uses it to determine the substantive and the spirit of different provisions of the constitution. The courts always resort to this part where it faces ambiguous provision in settling certain matters before them, they always advice this part to be as the mirrors of the Government in implementing their duties and during formulating different national policies. Therefore these Principles are expected to be pursued in the efforts of the nation to realize the national Ideals.

That means it compels the state to do things in the interest of the whole society so creating and maintaining a welfare state. Moreover it is well settled that the provisions of the fundamental objectives and directive principles of state policy are not justifiable just like the preamble. Therefore, it would appear that the duty and responsibility on all organs of government is limited to the extent that the judiciary cannot enforce any of the provisions. Thus, to that extent, the executive do not necessarily have to comply with any of the provisions unless and until the Legislature has enacted specific laws for the enforcement.

The Bill of Rights. A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement mostly they are listed in the constitution of the named country. In other words is the list of all rights which a human being is entitled. However these rights differ in its importance and enforceability depending to which country you are referring. In this list there the most important rights to human being they are called fundamental rights which are

born with him/her, they are inherent to the man by virtue of being a human being these include right to life. In Tanzania all rights including the fundamental human rights are listed in the Constitution of 1977 from Article 12- 29. There are different generations known under this aspect of bill of rights worldwide. There is International Convention on Civil and Political Rights (1St Generation), International Covenant on Economic, Social and Cultural Rights(2nd Generation) etc. Historical background of Bill of Right in Tanzania.

Human rights in Tanzania has a long history, starting to the rein of Mwalimu Nyerere. after independence in 1961. Tanzania did not have a bill of rights in its constitution since independence. It introduced a bill of rights in 1984. In early sixties state deliberately refused the inclusion of bill of right in the Constitution. The reason behind was the worry that colonial judges who were still in court system would use it to frustrate the effort of government to speed the development off the people.

In 1984 a Bill of Rights was introduced into the Constitution of the United Republic of Tanzania, 1977 by way of a constitutional amendment. The guaranteed rights were not justiciable immediately but were suspended for three years. These three years is not openly stated as to why it was suspended however it is believed that the aim was to make sure all laws which were contrary to human rights are repealed or amended. The law that suspended Justiciability of the guaranteed rights was the Constitution (Consequential, Transitional and Temporary Provisions) Act No. 1 of 1984.

Justiciability of bill of right in Tanzania. Tanzania bill of right as said above was incorporated in the constitution but it lacked the mechanism of enforcing them. This led to many criticism by the court that if there is no any enforcement mode is as good as no bill of right in Tanzania. Remarking of the importance of enforcement Lugakingira J in Reverend Christopher Mtikila v. AG, 1993, HC of TZ at Dodoma, civil case No. 5 ‘when the framers of the Constitution declared the fundamental rights…, they did not do so in vain; it must have been with the intention that these rights should be exercisable.

’ Moreover showing the importance of enforceability most scholars have tried to show its importance that, however impressive and sound of the Bill of right, still will have very little impact on the community for which it is intended if it is not justiciable. In addition to be justiciable the country must put in place proper legal and institutional frameworks for its enforcement. Basic Rights and Duties Enforcement Act (Act No. 33/1994). In 1994 the Government enacted the Basic Rights and Duties Enforcement Act which aimed at providing procedures on enforcing basic rights and duties.

This Act came into force in 1995 whereby it operates in both Tanzania mainland and Zanzibar. Under this Act expressly stated that it will cover all course of action basin under article. 12 to 29 of the Constitution. The Act provides the procedures and locus standi for that who wish to enforce their rights whereby any person who alleges that any of the provisions of sections 12 to 29 of the Constitution has been, is being or is likely to be contravened in relation to him, he may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the High Court for redress.

The same provision is seen the Constitution. Therefore it is obvious that the cry for enforcement procedure which was raised before, became cured by this Act this made different suits relating to Human rights become fruitful. CHALENGES ON JUSTICIABILITY OF HUMAN RIGHTS IN TANZANIA. Despite the inclusion of the bill of rights in the United Constitution, still the state was not happy to the implication they sought will come up.

There are different matters which when you look at them you find that there is a problem in enforcing these rights. some of these challenges are as follows; HUMAN RIGHTS VERSUS PREAMBLE. In Tanzania as we have seen above did not need early inclusion of bill of rights in the constitution. From different sources it has been stated that in the interim Constitution of 1965 the rights were included in the Preamble of the constitution. This was the first progress of the struggle against the state in favour of Bill of rights in the constitution.

However this to my opinion was a deliberate action of the state because they knew they not be enforceable because preamble in not part of the enforceable parts in the constitution. In short it has no legal force. This was a stumping stone to all human rights activism in the country, however despite of that, people lodged complaints to test the legality of those individual rights prescribed in the preamble. As usual the court held that the preamble to a constitution does not in law constitute part of the constitution, this was in Hatimali Adamji v.

East Africa Ports and Telecommunication Corp. (1973)TLR 6. People continued to struggle for their rights, after discovering that the preamble has no legal effect to the adjudication of basic rights and duties attempts continued. In the same year 1973 one appellant in Thabit Ngaka v. Regional Fisheries& othersafter realizing that some rights are at the TANU constitution which are similar to those in the preamble were at the schedues in the interim constitution he instituted a suit on the ground that he was denied wages by his employer.

Granting the application Mfalila J. held that in Tanzania under Article 3(f) of TANU constitution (which was part of the Interim Constitution) workers including government employees have right to their wages and not a mere privilege. HUMAN RIGHTS VERSUS FUNDAMENDAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY. Fundamental objectives and directive principles of state policy as shown above its aim is to direct the government to the right way to do things in the interest of the whole society.

Also it helps in constitution interpretation in the sense that the court can determine the substantive provision of the constitution and even to know the spirit of the provision. This was stated by Samatta, C. J in Julius Ishengoma Francis Ndyanabo v A. G stated that “(T)he Constitution of the United Republic of Tanzania is a living instrument, having a soul and consciousness of its own as reflected in the Preamble and Fundamental Objectives and Directive Principles of State Policy.

Courts must, therefore, endeavor to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument becomes a solid foundation of democracy and rule of law” In Tanzania constitution this is under Part II of Chapter 2 under this part different principle and directives are provided which in one way or another is not enforceable in any court of law.

However the same part if you go thoroughly you will find that some rights which were supposed to be in the bill of rights are placed in this part. The right to educations and work are covered under this part which makes difficult to enforce. It would be better though their implementation needs pecuniary issues to the state they were supposed to be in the list of human rights but with some qualification to that effect. This problem hinders or limits the responsibility of the Government towards fulfilling its obligation in relation to the named rights.

HUMAN RIGHTS VERSUS CLAW BACK CLAUSES AND OTHER RELATED MATTERS. Enforcement and justiciability of human rights in Tanzania has never been free. Different laws have many claw back and many limitations and related matters clauses like subject to, with exeception, without prejudice, in accordance with the law etc. These terminologies are made purposely so as to limit the justiciability of the rights in the Constitution.