MZUMBE UNIVERSITY

FACULTY OF LAW

PROGRAM: LLB I

NATURE OF TASK: INDIVIDUAL ASSIGNMENT

COURSE NAME: CONSTITUTIONAL LAW

COURSE CODE: LAW 127

LECTURE NAME: DR. EDWARD PROSPER LAIZER

SUBMISSION DATE: 27Th SEP 2019

STREAM: B

NAME OF STUDENT: BERNARD EDWARD ODEMBA

REG NUMBER: 11301257/T.18

QUESTION:

“Fundamental rights are not gifts from the state but they are prior in a person by
virtue of birth and they are prior to the state and law..” (Source Lugakingira, J (as
he then was). Discuss the constitution of the court in promotion and protrction of
Human rights before and after inclusion of Bill of rights in the constitution of
Republic of Tanzania.
 OUTLINE

INTRODUCTION

 Background of the Bill of Rights into Tanzania.

MEANING OF TERMS

 Bill of Rights

MAINBODY

 How Judges in Tanzania apply Human rights in deciding cases (justifiability)

RECOMMENDATIONS

CONCLUSION

BIBLIOGRAPHY
 BIBLIOGRAPHY

BOOKS

Peter C.M, Human Rights in Tanzania, Selected Cases and Materials, p 42

STATUTES

Constitution (Fifth) (Amendment) act, 1984

Constitution (Fifth) (Amendment) act, 1984

Art. 3 of the Universal Declaration of Human Rights 1948 (United Nations General Assembly
Resolution 217

CASES

Section 5 (2)

(1995) T.L.R 31

(1994) 2 LRC 335. 42

Court of Appeal of Tanzania at Dar ea Salaam, Civ. App. No. 64 of 2001

(1952) 2 Q.B. 329

High Court of Tanzania at Mwanza, Civil Case no.3 of 1986 (Unreported)

Cap 1 of 19
 INTRODUCTION

The Bill of Rights was incorporated into the Constitution of the United Republic of Tanzania of
1977 in 1984 following the Fifth Amendment of the Constitution1. However the justifiability of
the provision of the basic rights and freedoms in the court of law was suspended for a period of
three years through the constitution (Consequential Transitional and Temporary Provisions Act,
1984).2 According to the Concise Oxford Dictionary, Bill of Rights is a statement of rights, in
particular the English Constitutional settlement of 1689 and the 1st ten amendments to the
Constitution of the US, ratified, 1791.

In Tanzanian context, the Bills of Rights are the rights which are inherent to man as a human
being. Thus these rights are not given to a man individually but rather inherent (natural). It was
stated in the case of Rev. Christopher Mtikila v. Attorney General,3 that;

“fundamental rights are not gifts from the state but they are inherent in a person by
virtue of birth, and they are prior to the state and the law, the enactment of those rights
in the constitution is mere evidence of their recognition and intention that they should be
enforceable in court of law and an intention of those rights should not be arbitrarily
restricted by the state.”

MAINBODY

Before going further, it is of supreme importance to point out that, there are a lot of rights as
stipulated in Part two of the Constitution of the United Republic of Tanzania of 1977 as amended
in 2005. Some of the rights inter alia included therein are; the right to life, freedom of
movement, equality before the law, the right to work, the right to own property, right to be heard,
independence of judiciary, separation of power and right to bail and presumption of innocence.

Before the inclusion of Bill of Rights into the Tanzanian Constitution, most courts relied on the
magna carter, independence of USA among others of which influences were against violation of
1
Constitution (Fifth) (Amendment) act, 1984

2
Section 5 (2)

3
(1995) T.L.R 31
human rights and they all succeeded to protect and uphold human rights. Again hereunder are
some discussed rights and the relevant cases as decided by Judges in Tanzania, and how they
translated the bill of rights into reality in their decisions after the inclusion of Bill of Rights into
the Constitution of The United Republic of Tanzania, 1977..

The right to life; this is provided for under Article 14 of the Constitution of the United Republic
of Tanzania of 1977 as amended in 2005 that;

“Every person has the right to live and to the protection of his life by the society in
association with the law.”

Every one has the right to life, liberty and security of person.4 This is the most important of all
human rights. All human rights provide for the protection of the right to life.

Death penalty among other things, infringe the right to life. This was stated in the case of R v.
Mbushuu and another,5 it was held that death penalty offends the right to dignity, how it is
executed and thus Contrary to Article 13(6)(d) of the Constitution. The penalty is inherently
cruel, inhuman and degrading punishment and the process of hanging is particularly gruesome,
generally sordid, debasing and brutalizing as provided for under the Constitution. In the court of
Appeal the questions were; whether the law providing for death penalty is a lawful law that is not
arbitrary; and whether the death penalty is not more than reasonably necessary to achieve the
legitimate object of protecting the society from killings of one another with malice aforethought.

The court held that the death penalty is not arbitrary, hence a lawful law and is reasonable.
Therefore the death penalty and the laws prescribing, it is saved by the Constitution and thus
Constitutional.

The right to equality before the law; this is provided for under Article 13(1) of the
Constitution. All persons are equal before the law and are entitled, without any discrimination, to
protection and equality before the law. The form of guarantee against discrimination goes hand
in hand with the current spirit of the International Community which emphasizes the need of

4
Art. 3 of The Universal Declaration of Human Rights 1948 (United Nations General Assembly Resolution 217

5
(1994) 2 LRC 335. 42
equality of all human beings as part of the International Community.6In the case of JULIUS
ISHENGOMA NDYANABO v. ATTORNEY GENERAL7, it was stated that a person’s right
of access of justice is one of the most important in a democratic society and, in Tanzania that
right could only be limited by legislation that was not only clear but also which was not violative
of the Constitution. The fundamental rights of access of justice was what linked together the
three pillars of the Constitution; that is the rule of law, fundamental rights and independent,
impartial and accessible judicature.

The right to work, as provided for under Article 22(1) of the Constitution of the United
Republic of Tanzania. The right to work is important as it is related to the very survival of the
individual and the society in general. It is close to the right to life itself as this requires legal
protection. Lord Denning in LEE v SHAWMAN’S GUILD of Great Britain8 remarked that,

“A man’s right to work is just as important to him as, if not important as his right of
property. These courts intervene everyday to protect rights of property they must also
intervene to protect the right to work.”

Also it was stated in the case of AUGUSTINE MASATU v. MWANZA TEXTILE LTD 9, by
Mwalusanya J, that;

“the right to work is a fundamental human right which is above and over ordinary
legislation and so if the right to work had been taken away by ordinary legislation, then
the same stood as a good chance of being declared void and unconstitutional by 1 st
March, 1988 when the Bill of Rights became justifiable.

The right to worship, as provided for under Article 19 (1) of the Constitution of the United
Republic of Tanzania. Every person has the right to the freedom of thought or conscience, belief,
or faith and choice in matters of religion, including the freedom to change his religion or faith.

It was stated in the case of HAMISI RAJABU DIBAGULA v. R that;

7
Court of Appeal of Tanzania at Dar ea Salaam, Civ. App. No. 64 of 2001

8
(1952) 2 Q.B. 329

9
High Court of Tanzania at Mwanza, Civil Case no.3 of 1986 (Unreported)
 “The freedom enshrined in Article 19 includes the right to profess, practice and
propagate religion. Since profession, practice or propagation of religious faith, belief or
worship is also a form or manifestation of a person’s expression, it must be correct to
say, as we do, that freedom of religion is also impliedly guaranteed under Article 18(A)
of the Constitution. That freedom, like other freedoms, is not an absolute right. The
exercise of it, just as the exercise of other freedoms, is subject to the requirements of
public peace, morality and good order, which are requisites of the common good of
society.”

The judges in this case also referred to the wise words of Voltaire, the 18 th Century French
Philosopher:

“I disagree profoundly with every word that you say but I shall defend unto the death
your right to say it”.

With this, and other reasons stated therein, the judges decided to quash the conviction, allow the
appeal and set aside the sentence imposed thereon.

The right to be heard; this provided for under Article 18 of the Constitution of the United
Republic of Tanzania. The right to be heard otherwise is referred to as audi alterem partem rule.
It is the second principle of the rules of natural justice. This rule requires that before the person is
condemned or judged, he should be granted opportunity to present his side of the story. There are
two requirements; first, the person should be adequately briefed of the case facing him. This is
important for the purpose of arming the accused properly as he can only effectively controvert
that which he is aware of. Also he can only conduct a meaningful re – examination of witnesses
deposing against him if he has access to everything against him. Secondly, the person should
then be given the opportunity to face his accusers. An example of the applicability of this right is
the case of NYIRABU GITANO NYIRABU and THREE OTHERS v. BOARD
CHAIRMAN, SONGEA BOYS SECONDARY SCHOOL and THREE OTHERS. Citing
several authorities on the importance of the right to be heard as an Integral part of rules of natural
justice. Samatta J.K granted both certiorari and mandamus quashing the decision of the Board of
Songea Boys Secondary School to expel the four appellants from school. In addition he directed
that the Board to consider the accusation made against the applicant de novo and in accordance
with the principles of Natural Justice.

Generally it can be concluded that; the Bill of rights embodies the fundamental rights and duties
of the individuals in the country. These should be observed so as to assure the true freedom of
individuals. This can only be done by allowing full justifiability of the Bill of Rights; hence
judges in Tanzania should be free to determine matters in courts of law by applying the Bill of
Rights adequately where need be. In so doing they translate the Bill of Rights into reality.

In order for the Bill of Rights to be more meaningful to the daily life of the people of this
country in my opinion, I recommend That government should ensure true Independence of
Judiciary. This is by letting go of the interference of by the other arms on the government
especially the Executive in judicial functions. For example the President is empowered under
virtue of Articles 118(2)(3) and Article 108 of the Constitution of the United Republic of
Tanzania, to appoint the Judges. The duty should be left to the judiciary itself. With that, judges
can freely dispense justice. For the example in the case of Rev. Mtikila v. Attorney General
(supra) the provisions of the Election Act 10 that a person cannot contest for presidency as an
independent candidate, is unconstitutional.

10
Cap 1 of 1992