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On Tanzania’s Constitutional Order Speech Delivered by Chief Justice Barnabas A. Samatta at the ceremony to Launch the Book, ‘Constitutional and Legal System of Tanzania: A Civics Sourcebook’36 on 25th May, 2005, in Dar es Salaam I would like to begin by thanking the Managing Director of the Mkuki na Nyota Publishers, the publishers of the Civics Sourcebook that I will later this evening have the greatest pleasure of launching, and Professor Issa Shivji, the book’s editor, for inviting me to launch the book. I have also been asked by the two eminent hosts to share with this distinguished audience, before launching the book, some thoughts on one or two aspects covered by the book. I feel greatly privileged and honoured to receive that invitation. I propose to speak on few aspects of our country’s Constitutional order. On21stNovember,2000,Ihadaspecialprivilegeandhonourtoaddress the Honourable Members of Parliament at their inaugural seminar, held at Dodoma. I wish to revisit here a few of the issues I raised in my paper at that Seminar. Some of the senior politicians in this country have been reported by newspapers as expressing the view that the Constitution of the United Republic of Tanzania is a contract between the rulers and the ruled as to how our country should be governed. With greatest respect to these politicians, I have no doubt that the proposition is a misconception of the status of a national Constitution. That instrument cannot bear such status, for the simple reason that offices of rulers are creations of the instrument. In my opinion, a national Constitution, save where it has been imposed by dictators or usurpers of people’s power, is a consensus reached by the people as to how their country 36.I.G. Shivji, H.I. Majamba, C.M. Peter and R.V. Makaramba, Mkuki na Nyota Publishers, Dar-es-Salaam, [November, 2004] 224 RULE OF LAW VERSUS RULERS OF LAW should be governed. To associate our Constitution with the status of a contract between the rulers and the people is to deny the latter of their sovereignty. The instrument is a law for rulers and the ruled. I wish now to turn to the question of the limits, if any, on the powers of our Parliament. According to the English common law doctrine of Parliamentary sovereignty or supremacy, the legislative powers of the British Parliament are almost unlimited. A long time ago, one British legal scholar expressed the view that the only legislative power that legislature lacked is the power to enact a law changing a man into woman and vice versa. According to the scholar, the legislature could competently enact a law condemning all red-haired men to death. It is almost certain that these propositions of law are incorrect today. The powers of the British Parliament must now be considered in the light of the strong wind of change blowing over Western Europe as a result of some decisions on European Community laws, made by the European Commission or the Court of Human Rights on issues relating to human rights. It is highly arguable that, by the United Kingdom becoming a party to treaties guaranteeing human rights, limitations have been placed on legislative powers of its Parliament. Be that as it may, the fact that the Constitution of Tanzania, unlike that of the United Kingdom, is a written one makes the doctrine of Parliamentary supremacy inapplicable to our Parliament. It is submitted that, since our Parliament is a constituted body, as opposed to a constituent body, one is compelled to examine the Constitutional instrument creating it to discover whether the legislature’s powers are unlimited. That legislative organ cannot have more powers than those bestowed upon it by the Constitution. Addressing the Calcutta Rotary Club, about forty years ago, an eminent Indian judge discussed the concept of Parliamentary supremacy. He said, among other things: In a nation governed by a written political Constitution it is vain to look for supremacy in Parliament. The supremacy is of the Constitution. The Supremacy is an archaic political philosophy born … as the revolt of a people against a tyrant King. While its continued necessity may be imaginableinacountrystillgovernedbyaMonarchagainsttheMonarch’s possible misbehaviour, that doctrine is wholly out of place in a people’s Republic where the people themselves as sovereigns have given them a Constitution. The Constitution, therefore, is the supreme verdict of the people and all other organs must subserve that Constitution. Those who think of Parliamentary supremacy in a written...

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