THE LEGAL MANDATE OF CONSTITUENT
ASSEMBLY IN THE CONSTITUTIONAL
REVIEW PROCESS IN TANZANIA
AUTHORED BY STEMIUS SALVATORY
MOBILE PHONE NUMBER: 0659 613 958
E-MAIL: [email protected]
P.O BOX 3130
DAR ES SALAAM
TANZANIA
MUNGU IBARIKI TANZANIA
10TH MARCH, 2O14
1
TABLE OF CONTENTS
I.
II.
III.
IV.
V.
THE LIST OF CITED CASES
THE LIST OF CITED LAWS
THE LIST OF CITED PUBLICATIONS
THE MEANING OF LEGAL LATIN WORDS AND PHRASES
PROTECTION OF INTELLECTUAL PROPERTY RIGHT
PART A: INTRODUCTION
SUB-PART I: CONTENT ORGANISATION
SUB-PART II: THE CONTENDING SCHOOLS OF THOUGHT
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The First School of Thought
The Second School of Thought
The Third School of Thought
Fourth School of Thought
Fifth School of Thought
SUB-PART II: MATTERS TO BE NOTED BY READERS
PART B: CONSTITUTIONAL MAKING PRACTICE: COMPERATIVE
APPROACH
 Republic of South Africa
 Republic of Kenya
 Republic of Namibia
PART C: THE POWER OF THE CONSTITUENT ASSEMBLY AS PER
LAWS OF THE LAND
PART D: THE STATUTORY INTERPRETATION APPROACH
SUB-PART I: CONCEPTUAL
INTERPRETATION
FRAMEWORK
1. Express Directives on Interpretation
2. Main Canon or Principles of Interpretation.
i.
Literal Interpretation
ii.
Mischief Rule
2
TO
STATUTORY
iii.
iv.
v.
3.
4.
5.
6.
Golden Rule
Purpose Approach
Integrated Approach
Presumptions Applied in Interpretation
Internal Aids to Construction.
External Aid to Construction.
Logical Aids to Construction.
SUB-PART II: GENERAL RULE OF STATUTORY INTERPRETATION
SUB-PART III: EXCEPTION ON GROUND OF AMBIGUITY
SUB-PART IV: EXCEPTION ON GROUND OF ABSURDITY
SUB-PART V: PURPOSIVE APPROACH
i. Harmonious Whole Rule
ii. Reading Law in Tandem
SUB-PART VI: EXTERNAL AID TO INTERPRETATION
SUB-PART
VI:
INTERPRETATION
EXPRESS
DIRECTIVES
TO
STATUTORY
SUB-PART VII: LOGICAL AIDS TO STATUTORY INTERPRETATION
i.
ii.
iii.
Noscitur a Sociis Rule
Expressio Unius Est Exclusion Alterius Rule.
Applicability of Ejusdem Generis Rule
PART E: PROFESSIONAL AND OFFICIAL OPINION ON MANDATE
OF THE CONSTITUENT ASSEMBLY.
SUB-PART I: ATTORNEY GENERAL’S POSITION ON MANDATE OF
THE CONSTITUENT ASSEMBLY.
SUB-PART II: PROFESSIONAL OPINION ON MANDATE OF THE
CONSTITUENT ASSEMBLY
PART F: CONCLUSION
3
THE LIST OF CITED CASES
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John EntickVs Nathan Carrington & 3 Others [1765] EWHC KB J98
Kiriri Cotton VsDewani [1958] E.A 239
Duport Steels Ltd v Sirs [1980] 1 WLR 142; [1980] 1 All ER 529
MwinyimadiRamadhanVs Republic Criminal Appeal No. 150 of 1963
Heydon's Case(1584) 3 Co Rep 7a
Sussex Peerage Case (1844) 11 Clark &Finnelly 85-154 and 764-767
Grey v. Pearson (1857) 6 HL Cas 61, 106; 10ER 1216, 1234.
Luke v IRC [1963] AC 557
City of London Court Judge [1892] QB 273
River Wear Commissioners v Adamson (1876-77) L.R. 2 App Cas 743
Joseph Warioba V Stephen Wassira and Another 1997 [TLR] 272
Pepper v Hart [1992] 3 WLR 1032
Maunsell v Olins[1975] AC 373
United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365,
371 (1988)
United States v. Boisdoré’s Heirs, 49 U.S. (8 How.) 113, 122 (1850)
Bernado Ephraim Vs Holaria Pastory & Another (PC) Civil Appeal No. 70 of
1989
Bi Hawa Mohamed Vs Ally Sefu, Civil Appeal No. 9 of 1983
Adamu Kisute & 2 Others Vs Mbaraka Williaman, Civil Appeal No. 6 of 1980
Barnard v. National Dock Labour Board [1953]1 All E.R. 1113
Becke Vs Smith [1836] 2 M & W 191
Ellen D. Mcghee, Vs Bill Gene Helsel, SR., 262 Mich App 221, 226 (2004)
Dimbleyby & Sons Ltd Vs National Union of Journalists [1948]1 ALL ER 751
Tate v. Ogg, 195 S.E. 496, 499-500 (Va. 1938)
Singida Regional Trading Company Vs Tanzania Posts & Telecommunication
Corporation [1979] L.R.T No. 11
Quazi Vs Quazi [1980] AC 744
Amarchandra Chakrabotry Vs Collector of Excise, AIR 1972 SC 1863
Good Samaritan Vs Joseph Robert Savari Munthu, Labour Revision No. 165 of
2011
R Vs Omar Kindamba & Others [1967] EA 752,
National Bank of Commerce Vs J.M Sinzobakwila [1978] L.R.T No. 39
The New Great Insurance Co. of India Vs Lilian Cross & Another [1965] EA
National Grindlays Bank & Co.Vs Kentiles & Co.[1966] EA 71
4
THE LIST OF CITED LAWS
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The Constitution Review Act, 2011
The Constitution of Kenya Review Act [CAP. 3A R.E 2009]
The Constitution of United State of America, 1787
The Ninth Constitutional Amendments ratified on 15 December, 1791
(USA)
The Tenth Constitutional Amendments ratified on 15 December, 1791
(USA)
The Interpretation of Law Act [CAP. 1 R.E 2002]
The Constitution of the Republic of South Africa Act 200 of 1993 (The
Interim Constitution)
The Judicature and Application of Laws [CAP. 356 R.E 2002]
The Constituent Assembly Act, 1962
The Constitution of United Republic of Tanzania, 1977
The Office of the Attorney General (Discharge of Duties) Act, 2005
5
THE LIST OF CITED PUBLICATIONS
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The Hansard of Parliament dated 18th November, 2011
The Hansard of Parliament that dated 17th November, 2011,
The Hansard of Parliament that dated 16th November, 2011,
The Oxford Advanced Learner’s Dictionary 8th Edition, 2010,
The Constitutional Review Bill, 2011
The Principles concerning the Constituent Assembly and the Constitution for
an Independent Namibia of 1982
The Security Council Resolution No. 632 of 1982
The Mwananchi News Paper dated 22nd February, 2014
Sam Brooke, “Constitution Making and Immutable Principles”, 2005
(Thesis)
Rupert Cross et al, Statutory Interpretation, 2 nd Edition, London Butterworths,
1987,
Zanda, M, “The Law Making Process” (1980)
Yule Kim, “Statutory Interpretation: General Principles and Recent Trends”:
Legislative Attorney American Law Division (2008)
Jacob Scott, “Codified Canons and the Common Law of Interpretation” in
The Georgetown Law Journal Vol. 98 (2010)
Bryan Garner , “Black’s Law Dictionary” 7th Ed. West Group: St. Paul, Minn,
1999
J.C Gray, “The Nature and Source of Law” 2nd Ed.; New Haven, 1921
Amedeus Shayo, “Powers of constituent assembly” the article posted on the
Website of The Citizens News Paper (http://www.thecitizen.co./News/) 2nd
March, 2014
John W. Salmond , “ Jurisprudence” 12th edition: Sweet & Maxwell,
London, 1966
Professor IssaG.Shivji “Dhana na Maana ya Bunge Maalum la Katiba”
published in Rai Mwema News paper dated 5th March, 2014
Professor Yash Ghai “The Role of Constituent Assemblies in Constitution
Making” , Institute for Democracy and Electoral Assistance, (2006)
E. A. Driedger,“Construction of Statute”, 2nd Edn. Butterworthy, Toronto,
(1983)
Taasisi ya Uchunguzi wa Kiswahili (Institute of Kiswahili Research of
University Of Dar es Salaam), “Tuki Kamusi ya Kiswahili-Kingereza” (Tuki
Swahili-English Dictionary) 1st Edition, Dar es Salaam (2001)
Taasisi ya Uchunguzi wa Kiswahili (Institute of Kiswahili Research of
University Of Dar es Salaam), “Tuki English-Swahili Dictionary” (Kamusi ya
Kingera-Kiswahili) 2nd Edition, Dar es Salaam 2000)
6
THE MEANING OF LEGAL LATIN WORDS AND PHRASES
in tandem
in pari materia
contradictio in adjecto
inter alia
condition sine quo non
in extenso
modus operandi
De jure
de facto
consensus id idem
consensus
in pleno
ex facie
ipso jure
ipso facto
intra legum
intra vires
in toto
ex cathedra
ab initio
ad infinitum
de novo
sui generis
vide
suo motu
suppressio veri
gratis et amori
id est
in lieu
= together with/ concurrently/ jointly
= in same term with
= contradiction in itself
= among others
= necessary condition without which not
= at full lengthy
= mode of operation/ procedure
= in law
= in fact
= mean same thing in the same sense
= accord/ (muafaka in Swahili language)
= at full length
= on face of it
= from the law itself/ as matter of law
= by that very fact itself/ as matter of fact
= within the law/ compliance with the law
= contrary to law/ outside the law
= totally/ completely
= with authority/ from the source of authority.
= from beginning
= to infinity
= start afresh
= unique
= through/ see
= on its own initiative
= suppression of truth
= for free of charge and love
= that is/ ( Abbreviation of i.e)
= instead of
7
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
This work is a copy right, thus, all rights are reserved. No part of this work may
be reproduced, stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, recording or otherwise without a
prior permission of the author of this work except that the Constituent Assembly
or members of the Constituent Assembly or any other person or institution may
print it for purpose of supplying this work to the member of Constituent
Assembly or Committee thereof or to supply to the member of General Public
of Tanzania gratis et amori, that is, free of charge and for love.
8
PART A: INTRODUCTION
SUB-PART I: CONTENT ORGANISATION
The paper is divided into six parts. Part A deals with introductory matters
including the brief description of Schools of Thought which have been arisen
out of contentious issue surrounding the power or mandate of the Constituent
Assembly in the Constitution Review Process in Tanzania. Part B deals with
the Constitution Making Practices critical analysis of the power or mandate of
the Constituent Assembly in the Constitution Review Process in Tanzania
through the Constitution Making Practices in world. Part C concerns with
critical analysis of the power or mandate of the Constituent Assembly in the
Constitution Review Process in Tanzania within the eyes of laws of Tanzania.
Part D focuses on critical analysis of the power of the Constituent Assembly in
the Constitution Review Process in Tanzania within Statutory Interpretation
perspective. Part E is inquiring the legality of the Legal Opinion of Attorney
General of United Republic of Tanzania, Justice Fredrick Werema on the power
or mandate of the Constituent Assembly in the Constitution Review Process and
also Part E provided for the legal solution which can be adopted to for purpose
of imposing effective, efficient and sufficient substantive and procedural
limitations on the Constituent Assembly as mechanism to prevent the
Constituent Assembly from abusing its powers. Part F is a conclusion of this
paper which contains the legally acceptable solution surrounding this saga of
mandate of the Constituent Assembly in the Constitution Review Process,
among others matters.
9
SUB-PART II: THE CONTENDING SCHOOLS OF THOUGHT
Now there is contentious legal issue surrounding the legal power or mandate of
constituent Assembly in respect of enactment of New Constitution within the
purview of Section 25 of The Constitution Review Act, 2011 as amended from
time to time up to 2013. The contentious legal issue has led to the emergency of
five Schools of Thought which are brief elucidated hereunder.
The First School of Thought
The First School of Thought argues that the power of Constituent Assembly to
enact new constitution is unlimited consequently Constituent Assembly can
modify, amend, improve or vary the Draft Constitution and the Constituent
Assembly can substantially or radically change the Draft Constitution or it can
completely change the Draft Constitution consequently the Constituent
Assembly can come out with “the Propose Constitution” which is substantially
or radically or completely different from the Draft Constitution submitted on it
by the Chairperson of the Constitutional Review Commission. The protagonists
of this school of thought, among other argument submit that the Constituent
Assembly is a sui generis public authority, therefore, its power is unlimited
because the Constituent Assembly is ipso jure and ipso facto representative of
the people. For purpose of this paper I hereby name this school of thought as
“Unlimited Power School of Thought” or “Unlimitedism”. The notable
protagonist of this school of thought is Professor IssaG.Shivji., the famous
academician and advocate and the guru of analysis of constitutional law. The
view of Professor IssaG.Shivji on mandate of the Constituent Assembly is
contained in his article titled “Dhana na Maana ya Bunge Maalum la Katiba”
1
. Also His Excellency President of United Republic of Tanzania, Jakaya
Mrisho Kikwete is the protagonist of this school of Thought as he proclaimed
his position on the mandate of the Constituent Assembly during the 37th
Anniversary of Chama Cha Mapinduzi (CCM) on 2nd February 2014.
1
Professor IssaG.Shivji “Dhana na Maana ya Bunge Maalum la Katiba” published in Rai Mwema News
paper dated 5th March, 2014
10
The Second School of Thought
The Second School of Thought argues that the legal power or legal mandate of
the Constituent Assembly to enact new constitution is limited consequently
Constituent Assembly has no legal mandate to change the Draft Constitution
especially fundamental pillars of Draft Constitution such as structure of union
and national values as they put it in Swahili Language “Bunge la Katiba
haliwezi kubadilsha mambo ya Msingi kwenye Rasimu ya Katiba” instead
Constituent Assembly can only modify or improve the Draft Constitution
without change fundamental pillars of the Draft Constitution. For purpose of
this paper I hereby name this school of thought as “Limited Power School of
Thought” or “Limitedism”. The notable protagonist of this School of Thought
is Justice Joseph Sinde Wariaoba the Chairperson of the Constitutional
Review Commission, among others2.
The Third School of Though
This School of Thought argues that the Constituent Assembly has power to
enact the New Constitution and can change any provision in the Draft
Constitution and it can substantially or completely change the provisions of the
Draft Constitution except that the Constituent Assembly completely has no
power to change in any manner “the National Values and Ethos” prescribed by
the provisions of Section 9 (2) of The Constitutional Review Act, 2011 such as
the existence of the United Republic, the existence of the Executive, Legislature
and the Judiciary, the republican nature of governance, the existence of
Revolutionary Government of Zanzibar, national unity, cohesion and peace,
periodic democratic elections based on universal suffrage, the promotion and
protection of human rights, human dignity, equality before the law and due
process of law and existence of a secular nature of the United Republic. For
purpose of this paper I hereby name this school of thought as “The Substantial
Unlimited Power School of Thought” or “Substantial Unlimitedism”. The
notable protagonist of this School of Thought is Honorable Fredirick Werema,
the Attorney General of the United Republic of Tanzania.
2
Justice Joseph Sinde Wariaoba express his school of thought in his speech delivered at the Conference
organised by the Tanzania Centre For Democracy to the leaders of political parties at White Sands Hotel on 12 th
February 2014 concerning the “Tafakuri na Maradhiano kuelekea Katiba Mpya”
11
Fourth School of Thought
There is another School of Thought which argues that the Constituent Assembly
must be left to interpret its own powers, in other words, the competent authority
to determine power of the Constituent Assembly is the Constituent Assembly
itself. This fourth school of thought was proposed by the Retired Chief Justice
and Vice Chairman of the Constitution Review Commission, Justice Augustino
Ramadhani during his presentation at the Annual General Conference of the
Tanganyika Law Society held on 21st February, 2014, at AICC in Arusha as it
was reported in Mwananchi News Paper3 and as it was posted in website of
The Citizen News Paper4. For purpose of this paper I hereby name this school
of thought as “Self -limitation School of Thought” or “Self-limitedism”
Fifth School of Thought
This School of Sought is an extension of “Unlimited Power School of Sought”
which forms an extreme aspect of “Unlimitedism” or starts where
“Unlimitedism” ends. This School of Sought is spearheaded by Honorable
Tundu Lissu (the “Mwanasheria Nguli” as fondly referred to by news papers
and his supporters) the Member of Parliament of Iramba East Constituent
through Chama Cha Demokrasia na Mandeleo (Chadema)5 . Honorable Tundu
Lissu argues that the Constituent Assembly not only has unlimited power but
also the Constituent Assembly has absolutely unlimited power to the extent that
it can dissolve the United Republic of Tanzania provided that the Constituent
Assembly complies with procedural limitation which is to the effect that such an
act of dissolution of United Republic of Tanzania is supported by two-third of
all members of the Constituent Assembly from both part of the Union, id est,
Tanzania Mainland (Tanganyika) and Tanzania Island (Zanzibar) 6 . I hereby
name this Sub-School of Thought as “Absolute Power School of Thought” or
“Absolutism”.
3
The Mwananchi News Paper dated 22nd February, 2014 at page 5 and 8 thereof as reported by Mussa Juma
and Filbert Rweyemamu (the correspondents).
4
The information was obtained from the Website of The Citizens News Paper
(http://www.thecitizen.co./News/) particularly from the article titled “Powers of constituent assembly” posted
by Amedeus Shayo on 2nd March, 2014
5
Honorable Tundu Lissu is also the advocate of the High Court of Tanzania and Surbodinate Courts thereto
save for Primary Court.
6
Hon. Tindu Lissu proclaimed his School of Thought during the sucession of the Constituent Assembly on 20 th
February, 2014 and also his view can be found in news released by Tanzania Daima News Peper on its website
(http:www.freemedia.co.tz/daima/) as posted by Donson Kaijage on 21 st February, 2014 under title of “Tundu
Lissu, WeremaWavutana bungeni”
12
SUB-PART II: MATTERS TO BE NOTED BY READERS
LET IT BE KNOWN THAT the English cases referred herein of which their
decisions were delivered before or on 22nd July, 1920 have force of law in
Tanzania vide Section 2 (3) of The Judicature and Application of Laws [CAP.
356 R.E 2002] which is quoted verbatim hereunder;
“2.-(1) ……………………………………………………………….
(2) …………………………………………………………………
(3) ……… the jurisdiction of the High Court ….. shall be exercised in
conformity with the substance of the common law, the doctrines of equity and
the statutes of general application in force in England on the twenty-second
day of July, 1920, and with the powers vested in and according to the
procedure and practice observed by and before Courts of Justice and justices of
the Peace in England according to their respective jurisdictions and authorities
at that date, ………..”
Also, the said English decisions have force of law in Tanzania by virtue of
Kiriri Cotton Vs Dewani [1958] E.A 239 (as per O’Connor, P) wherein it was
held that established decision on common and doctrine of equity delivered
before the date of reception by the superior courts in England are binding.
IT SHOULD BE KNOWN THAT all emphasis in all quotations quoted from
various sources including cases and publications have been supplied by the
author of this paper.
Now I am going to analyse this contentious issue surrounding the mandate of
the Constituent Assembly in the Constitutional Review Process in the light of
provisions of laws of United Republic of Tanzania, judicial practice of statutory
interpretation and the Constitution Making Practices for the purpose of
ascertaining the School of thought which is accurate or correct among these five
contending schools of thought namely “Limitedism”, “Unlimitedism”,
“Substntial Unlimitedism”, “Self-limitedism”, and “Absolutism” Schools of
Thought.
13
PART B: CONSTITUTIONAL MAKING PRACTICE: COMPERATIVE
APPROACH
There is no any provision of law either be it constitutional or statutory or
precedential provision (case law/precedent) which limits power of the
Constituent Assembly in the whole process of enacting provision of New
Constitution, however, constitution making practice shows that where the Draft
Constitution is prepared by a constitutional commission or other institution of
similar nature, in practice the power of the Constituent Assembly to enact New
Constitution is limited as it were the cases in Uganda, Ghana, Kenya and
Ethiopia but where the Constituent Assembly is involved in all or almost all
aspects of constitution making process namely consultation of the people (
including interests groups)on the new constitution, preparation draft of the
constitution, debating and enacting the Draft Constitution the power of the
constituent assembly to enact New Constitution is unlimited or is substantially
unlimited as it were the cases in countries like Cambodia, India, and East
Timor, among others. This view is also shared by the guru of constitutional law
Professor Yash Ghai in his work entitled “The Role of Constituent Assemblies
in Constitution Making” at page 23 and 24 wrote as quoted hereunder;
“The functions of constituent assemblies have also varied. Some start with a
blank slate and are free to make any decisions, others may be bound to
incorporate certain fundamental principles (South Africa, Namibia,
Cambodia)………….The constituent assembly’s role in determining goals is
limited in those cases where the draft is prepared by a constitutional
commission or some similar body. The assembly may be free to modify the draft
or even to reject it but in practice its choices are limited.”
In the light of words Professor Yash Ghai even where the power of the
Constituent Assembly to enact New Constitution is limited on ground of
presence of Constitutional Commission or body of similar nature or for any
other grounds, the practices shows that such limitations on the power of the
Constituent Assembly to enact New Constitution are imposed by law either the
constitution or statute of which may either be an Act of Parliament or an Act of
Constituent Assembly. The words of Professor Yash Ghai that “others
[Constituent Assembly] may be bound to incorporate certain fundamental
principles” by necessary implication means that such limitations are imposed
14
by law as justified by the use of the word “bound” which tells us that such
limitations has force of law short of which cannot have “bindingness” as
fundamental characteristics of “the Legal Rules” (Law) which differentiate
“the Legal Rules” from other rules is bindingness nature of “the Legal Rules”.
It should be known that it is a settled principle in common law jurisdictions that
public power is acquired law and law only and not by practice or usage as it was
held in the case of Barnard v. National Dock Labour Board [1953]1 All E.R.
1113 and Entick v Carrington (1765) 19st. TR. 1030, among others. Now let
us look examples from some African Countries namely Kenya, Namibia and
South Africa which imposed some limitations on the power of the Constituent
Assembly to enact New Constitution.
 REPUBLIC OF SOUTH AFRICA
The Interim Constitution of Republic of South Africa of 1993(Act No. 200
of 1993) imposed both procedural and Substantive limitations on the
Constitutional Assembly of Republic of South Africa through “Chapter Five”
thereof which was titled “THE ADOPTION OF THE NEW
CONSTITUTION” and “Fourth Schedule” thereof. Section 71 of The
Constitution of the Republic of South Africa Act 200 of 1993 is reproduced in
pleno herein below;
“71 Constitutional Principles and certification
(1) A new constitutional text shall(a) comply with the Constitutional Principles contained in Schedule 4; and
(b) be passed by the Constitutional Assembly in accordance with this Chapter.
(2) The new constitutional text passed by the Constitutional Assembly, or any
provision thereof, shall not be of any force and effect unless the Constitutional
Court has certified that all the provisions of such text comply with the
Constitutional Principles referred to in subsection (1) (a).
(3) A decision of the Constitutional Court in terms of subsection (2) certifying
that the provisions of the new constitutional text comply with the Constitutional
Principles, shall be final and binding, and no court of law shall have
jurisdiction to enquire into or pronounce upon the validity of such text or any
provision thereof.
(4) During the course of the proceedings of the Constitutional Assembly any
proposed draft of the constitutional text before the Constitutional Assembly, or
any part or provision of such text, shall be referred to the Constitutional Court
by the Chairperson if petitioned to do so by at least one fifth of all the members
of the Constitutional Assembly, in order to obtain an opinion from the Court as
15
to whether such proposed text, or part or provision thereof, would, if passed by
the Constitutional Assembly, comply with the Constitutional Principles.”
On Substantive Limitation, Section 71 (1) (a) of The Constitution of the
Republic of South Africa Act 200 of 1993 (the Interim Constitution)
proclaimed what it named “The Constitution Principle” which were entrenched
in The Fourth Schedule and mandatorily required that “The 34 Constitutional
Principles” should form part and parcel of the contents of Permanent
Constitution of which was enacted in 1996 which is referred as The
Constitution of the Republic of South Africa Act No. 108 of 1996. Further,
Section 71 (1) (b) and (2) of The Constitution of the Republic of South Africa
Act 200 of 1993 stated that the new constitutional text passed by the
Constitutional Assembly, or any provision thereof, shall not be of any legal
force and effect unless the Constitutional Court has certified that all the
provisions of such text comply with the Constitutional Principles and generally
it was mandatorily required for the New Constitution to complies with the
substance and procedure prescribed by Chapter Five of Interim Constitution.
 REPUBLIC OF KENYA
In Kenya Draft Constitution was prepared by the Committee of Experts
established under Section 8 of The Constitution of Kenya Review Act [CAP.
3A R.E 2009] which is equivalent to the constitutional commission, however,
limitations to the Parliament of Kenya which was equivalent to Constituent
Assembly were expressly imposed by law in particular Section 33 (4) (a) and
(b) of The Constitution of Kenya Review Act [CAP. 3A R.E 2009]which is
reproduced verbatim hereunder;
33 (4) The National Assembly shall, within thirty days of the tabling of the draft
Constitution under subsection (3), debate it and—
(a) approve the draft Constitution without amendment and submit it to the
Attorney-General for publication; or
(b) propose amendments to the draft Constitution and submit the draft
constitution and proposed amendments to the Attorney-General, who shall,
within seven days, submit them to the Committee of Experts for consultation
and redrafting.
16
Under the cited provisions of law of Kenya, the Parliament of Republic of
Kenya which acted as Constituent Assembly was expressly and strictly
prohibited to amend or vary or change in any manner the Draft Constitution
prepared by the Committee of Experts because the law required Parliament to
approval Draft Constitution without any amendment and there was a need to
amend the Draft Constitution, the Parliament was not permitted to effect
amendment but it was required to propose amendments and sends the Draft
Constitution back to Committee of Experts for re-drafting of Draft Constitution.
 REPUBLIC OF NAMIBIA
The power of the Constituent Assembly of Namibia to enact New Constitution
was limited by The Principles concerning the Constituent Assembly and the
Constitution for an Independent Namibia of 1982 (famously known as “The
1982 Constitutional Principles”). “The 1982 Constitutional Principles”
imposed on the Constituent Assembly of Namibia both procedural and
substantive limitations. The Constituent Assembly of Namibia had no legal
mandate to change or amend the “The 1982 Constitutional Principles”. In
1982, the Western Contact Group7, the Front-Line States, and SWAPO drew up
Constitutional Principles to guide both the process for creating, and the final
content of, a new constitution8. These principles were indirectly adopted by the
Security Council vide The Security Council Resolution No. 632 of 1982 9 .
When the Constituent Assembly met for the first time on November 21, 1989,
the members unanimously resolved to use the 1982 Constitutional Principles as
a framework for Namibia’s new constitution 10. The Constituent Assembly of
Namibia was not permitted to change “The 1982 Constitutional Principles” of
which included (1) unitary, sovereign, and democratic state (2) constitutional
supremacy (3) existence of the executive and legislative being elected through
free, fair, and periodic elections.(4) independence of the judiciary
(5)Fundamental human rights (6) prohibition of racial, ethnic, religious or
sexual discrimination, among others.
7
The Western Contact Group included United States, Canada, France, Germany, and the United Kingdom.
Sam Brooke, Constitution Making and Immutable Principles, 2005 (Master of Arts in Law and Diplomacy
Thesis) at page 26
9
Ibid Sam Brooke,
10
Ibid Sam Brooke,
8
17
PART C: THE POWER OF THECONSTITUENT ASSEMBLY AS PER
LAWS OF THE LAND
Section 25 of The Constitution Review Act, 2011 is reproduced hereunder;
Powers of Constituent Assembly (Marginal Notes)
25.-(1) The Constituent Assembly shall have and exercise powers to make
provisions for the New Constitution of the United Republic of Tanzania and to
make consequential and transitional provisions to the enactment of such
Constitution and to make such other provisions as the Constituent Assembly
may find necessary.
(2) The powers of the Constituent Assembly to make provisions for the
proposed Constitution shall be exercised by a Draft Constitution tabled by the
Chairman of the Commission and passed by the Constituent Assembly.
After due consideration of the provisions of Section 25 of The Constitution
Review Act, 2011, I am of the firm view that the legal power or mandate of the
Constituent Assembly to enact the Constitution of United Republic of Tanzania
is unlimited indispensably the position taken by “Unlimited Power School of
Thought” and taken by “Absolute Power School of Thought” are accurate or
correct, therefore, is intra legum (within the purview of law) consequently
positions taken by “Limited Power School of Thought” and “Substantial
Unlimited Power School of Thought” though the positions may be accurate or
collect in politics or in logic or in Constitution Making Practice but is intra
vires ( contrary to law) or wrong in eyes of law. The perspectives taken by
“Limitedism and Substantial Unlimitedism Schools of Thought are wrong in
law simply because the perspectives are not premised on any provisions of law
either be the constitutional law, statutory law or precedential law and the
perspectives are not founded on correct interpretation of provision of law,
therefore hereby reject“Limitedism and Substantial Unlimitedism in toto . It is
a trite rule of law established in the common law jurisdictions that “the State
shall do nothing except what has been permitted by law and citizens shall do
everything except what have been prohibited by law” This rule of law is traced
as back as 18th Century in the case of John Entick Vs Nathan Carrington & 3
Others [1765] EWHC KB J98 (as per Lord Camden) and this rule has been
entrenched in constitutions of some countries including The Constitution of
United State of America, 1787 vide The Tenth Constitutional Amendments
18
and The Ninth Constitutional Amendments11. The principle enunciated in the
case of John Entick Vs Nathan Carrington has force of law in Tanzania by
virtue of Kiriri Cotton Vs Dewani [1958] E.A (as per O’Connor, P) because
the decision was delivered before reception date. Now, the Constituent
Assembly being a state institution it has to do nothing except what it has been
permitted by law, to the best of my knowledge there is neither any provision of
law in The Constitution Review Act, 2011 nor in other statutes nor in the
constitution nor there is any judicial decision (case law) nor any other law
which mandatorily limits the power of the Constituent Assembly to
modification or improvement or amendment or variation of the Draft
Constitution only and prohibit it not substantially amends or completely change
the Draft Constitution or otherwise prohibit it to deal with what is called
“Misingi Mikuu ya Rasimuya Katiba” by protagonists of “Limitedism”or what
is called “the National Values and Ethos” by protagonists of “Substantial
Unlimitedism” . In the light of case of John Entick Vs Nathan Carrington, the
Constituent Assembly is enjoined to do only what has been permitted by law
only not more not less. The law in particular Section 25 of The Constitution
Review Act, 2011permits the Constituent Assembly to make provisions for the
New Constitution of the United Republic of Tanzania and the law has not
imposed any limitation as to the subject matters or contents of the New
Constitution (“Substantive Limitations”) which the Constituent Assembly
cannot deals with whether subject matters within Draft Constitution or outside it
instead the law has imposed “Procedural Limitations” only whereby the law
requires the Constituent Assembly to passing New Constitution on the basis of
support of two third majority of the total number of the members hailing from
Mainland Tanzania and two third majority of the total number of members
hailing from Tanzania Zanzibar as per Section 26 (2) of The Constitution
Review Act, 2011and that the Draft Constitution submitted by Chairperson of
Constitution Review Commission must be the instrument which will form the
basis of debate of the Constituent Assembly as per Section 25 (2) of The
Constitution Review Act, 2011,among other procedural limitations and
including procedural limitations to be imposed by The Standing Order made by
the Constituent Assembly as per Section 26 (1) of The Constitution Review
Act, 2011. There are no “Substantive Limitations” imposed on the Constituent
Assembly in the process of enacting New Constitution, therefore, the
Constituent Assembly has power not only to improve, modify or amend the
Draft Constitution but also it can substantially amend the Draft Constitution or
the Constituent Assembly can completely change the Draft Constitution
consequently it can come out with its own “Proposed Constitution” which is
substantially or radically or completely different from Draft Constitution
submitted by the Chairperson of Constitution Review Commission to it and the
11
The Ninth Constitutional Amendments and The Tenth Constitutional Amendments were ratified on 15
December, 1791
19
power of the Constituent Assembly is wide to make others laws even after
enactment of “Proposed Constitution” and it only where the Constituent
Assembly is dully dissolved in accordance with the Section 28 of The
Constitution Review Act when its power becomes functus officio. Lord
Camden in the case of John Entick Vs Nathan Carrington & 3 Others [1765]
EWHC KB J98 was of the view that any rule of law must be found in law books
or statutory books [including constitution] or must be found in common law
(decided cases) and that any rule which fall short of this, id est, is not found in
Law books or Case Law is not rule of law. Now, the rules that the power of the
Constituent Assembly to enacted New Constitution is limited as purported by
protagonists of “Limitedism” or is substantially unlimited as purported by
protagonists of “Substantial Unlimitedism” are not rules of law as these rules
are not found in our Law Books and are not found in Decided Cases (Case Law)
having force of law in Tanzania probably are “Rules of Logic” or “Rules of
Politics” or “Rules of Convenience” rather than rule of law. I challenge all
protagonists of “Limitedism” and “Substantial Unlimitedism” to show me and
other antagonists of these schools of thought any provision of law or any
principle from case law which impose substantive limitations on the Constituent
Assembly in the whole process of enacting New Constitution. In the language
of jurisprudence, Justice Warioba, Honorable Fredrick Werema and other
protagonists of “Limitedism” and“Substantial Unlimitedism” Schools of
Thought state “the law as it ought to be” (delege ferenda) and not “the law as it
is” (delege lata) whereas Honorable Tundu Lissu, Professor Issa Shivji and
other protagonists of Unlimitedism” and “Absolutism” School of Thought state
the law as it is (delege lata).
I firmly subscribe to the view of Honorable Attorney General, Justice
Fredreck Werema that if the power of the Constituent Assembly is limited to
improvement of the Draft Constitution only, there would be no reason to
establish the Constituent Assembly, the de jure and de facto presence of the
Constituent Assembly renders the argument of “Limitedism” School of Thought
contradictio in adjecto.
My response to “Self -limitation School of Thought” as propounded by Retired
Chief Justice, Augustino Ramadhani. With highest due respect humanely
possible, I beg to differ with the Retired Chief Justice, Augustino Ramadhani,
because giving opportunity to the Constituent Assembly to interpret law to
determine its own powers may lead to the Constituent Assembly to abduct its
own power (reduce its own power) or leads it to make the decision which
renders its power ultra vires, that is, exceeds its limits the fact that may promote
illegality. I am of the firm view that the proper authority to determine the power
of the Constituent Assembly where there is a dispute as to the power of the
Constituent Assembly in the Constitutional Review Process is the judiciary this
20
is because judiciary is the organ with final decision regarding interpretation of
law and dispensation of justice as per Article 107 A of The Constitution of
United Republic of Tanzania, 1977 as reproduced hereunder;
“107A.-(1) The Judiciary shall be the authority with final decision in
dispensation of justice in the United Republic of Tanzania.”
Therefore, I am of the view that in the circumstance, the judiciary should be
invited to interpret the provisions of Section 25 of The Constitution Review
Act, 2011 so that judiciary can determine the power of the Constituent
Assembly once and for all, the approach which will completely bring this
dispute to finality.
21
PART D: THE STATUTORY INTERPRETATION APPROACH
SUB-PART I: CONCEPTUAL FRAMEWORK TO STATUTORY
INTERPRETATION
The meaning of “Statutory Interpretation” was given by American Jurist, J.C
Gray in his work titled “The Nature and Source of Law” wherein he wrote as
quoted hereunder;
“The process by which a judge ( or indeed any person, lawyer, or layman, who
has occasion to search for the meaning of a statute) constructs from the words
of a statute – book a meaning which he either believes to be that of legislature,
or which he proposes to attribute to it”12
Whereas Sir Rupert Cross et al, in their work titled “Statutory Interpretation”
defines “Statutory Interpretation” as follows:
“It would be better to say that interpretation is a process by which the courts
determine the meaning of a statutory provision for the purpose of applying it to
the situation before them.”13
For purpose of accurate or correct determination of the legal power of the
Constituent Assembly in respect of enactment of New Constitution of United
Republic of Tanzania, the prevailing circumstances require me to invite the
Statutory Interpretation Approach as judiciary applies it to interpretation of
statutes and other instruments. Now I feel duty bound to apply the rules,
principles, canons, approaches, directives or guides of Statutory Interpretation
to Section 25 of The Constitution Review Act, 2011so that I can accurately
determine the legal power of the Constituent Assembly in respect of enactment
of New Constitution of United Republic of Tanzania. I am going to use
Integrated Approach to Statutory Interpretation whereby all principle, canons,
rules, aids, guides, directives and approach to statutory interpretation are going
to be invited in the whole process of interpretation of provisions of The
Constitution Review Act, 2011 generally and provisions of Section 25 thereof
12
13
J.C Gray, “The Nature and Source of Law” 2nd Edition at pg 176
Sir Rupert Cross et al, “Statutory Interpretation” 2nd Edition at pg. 30
22
in particular. The Statutory Interpretation Practice of judiciary in common law
jurisdiction reveals that there are six approaches to statutory interpretation
namely;
1. Express Directives on Interpretation
Express Directions on Interpretation means directive expressly prescribed by
subsidiary legislation or statute or constitution on how such subsidiary
legislation or statute or constitution should be interpreted. Express Directives
on Interpretation includes interpretation Acts like The Interpretation of
Law Act [CAP. 1 R.E 2002] in respect of Tanzania and Interpretation
sections found within many subsidiary legislations, statutes or constitutions.
2. Main Canon or Principles of Interpretation.
Main Canons of Statutory Interpretation are the primary rules of
interpretation which covers the overall approach to statutory
interpretation by judiciary. There are five Main Canons of Interpretation
namely;
i.
Literal Interpretation
ii.
Mischief Rule
iii. Golden Rule
iv.
Purpose Approach
v.
Integrated Approach
3. Presumptions Applied in Interpretation
The Presumptions Applied in Interpretation means the judicial outlook of
established variety of circumstances arising out of theoretical, practical and
conventional principles of the law that have been predestined or
predetermined to be as perceived by courts unless is rebutted by adducing by
evidence to the contrary or rebutted by express provision of law to the
contrary.
4. Internal Aids to Construction.
Internal Aids to Construction are matters which are contained in the statute
itself and which guides the Court in process of interpretation of statutes where
there is a problem of interpretation. Internal Aids to Construction include the
long title of the Act, explanatory notes, preamble, marginal notes, punctuation
and headings or tittles, among others.
23
5. External Aid to Construction.
External Aids to Construction are matters which are contained outside the
statute which guides the Court in process of interpretation of statutes where
there is a problem of interpretation. External Aids to Construction includes bill,
dictionary, statute in pari materia, international agreements, official reports,
text books, academic writings, and Hansard, among others.
6. Logical Aids to Construction.
Logical Aids to Construction are concerned with the precise application and
structure of language within the statute that is why sometimes are described as
rules of language or intrinsic aids to interpretation. The Logical Aids to
Construction include (1)Noscitur a Sociis (2) Ejusdem generis (3)Expressio
Unius Est Exclusion Alterius (4) Dissimilum Dissimilisest Ratio(5) Casus
Omissus Casus Omissus Pro Omisso Habendus Est (6.)Ubi Lex Non Distinguit
Nec Nos Distinguere Debemos and (7) Redeendo Singular Singulis, among
others.
For purpose of understanding deeply these principles, canons, rules directives,
approaches or guides of statutory interpretation you may consult several
publications such as Rupert Cross, Statutory Interpretation (1987) Zanda, M,
“The Law Making Process” (1980), Yule Kim, “Statutory Interpretation:
General Principles and Recent Trends” (2008) and Jacob Scott, “Codified
Canons and the Common Law of Interpretation” (2010).
SUB-PART II: GENERAL RULE OF STATUTORY INTERPRETATION
Now the issue is which approach, rule, guide or directive of statutory
interpretation should be applied to interpret the true legal meaning of Section 25
of The Constitution Review Act, 2011.As general rule courts are mandatorily
required by case law to apply the Literal Rule of Interpretation whereby the
courts is enjoined to give the words of a statute their plain, ordinary and natural
meaning., here the court is required to interpret Parliament’s intention from
what it has actually said by parliament and not from what court thinks
parliament meant to say or intended to say. In the case of Sussex Peerage Case
(1844;1 Cl & Fin 85)Tindal CJ held as reproduced verbatim hereunder;
24
"The only rule for construction of Acts of Parliament is that they should be
construed according to the intent of the Parliament which passed the Act. If the
words of the Statute are in themselves precise and unambiguous, then no more
can be necessary than to expound those words in that natural and ordinary
sense. The words themselves alone do, in such a case, best declare the intention
of the law giver."
Again in the case of Duport Steels Ltd v SIRS (1980) HL, Lord Diplock had
this to say;
"Parliament makes the laws, the judiciary interpret them. “Where the meaning
of the statutory words is plain and unambiguous it is not for the judges to invent
fancied ambiguities as an excuse for failing to give effect to its plain meaning
because they themselves consider that the consequences of doing so would be
inexpedient, or even unjust or immoral……………. Under our Constitution it is
Parliament’s opinion on these matters that is paramount………..If this be the
case it is for Parliament, not for the judiciary, to decide whether any changes
should be made to the law as stated in the Act."
In the same case of Duport Steels Ltd v SIRS (1980) HL Lord Scarman had this
to say;
‘If Parliament says one thing but means another, it is not, under the historic
principles of the common law, for the courts to correct it…We are to be
governed not by Parliament’s intentions but by Parliament’s enactments’.
This position is also accepted by the famous jurist, John W. Salmond in his
work titled “ Jurisprudence”14 wherein he wrote as follows;
“The essence of the law lies in its spirit, not its letter, for the letter is significant
only as being the external manifestation of the intention that underlies it.
Nevertheless in all ordinary cases the courts must be content to accept the as
litera legis as the exclusive and conclusive evidence of sentential legis. They
must in general take it absolutely for granted that the legislature has said what
it meant and meant what it has said. Ita scriptum est is the first principle of
14
John W. Salmond , “ Jurisprudence” 12th edition at pg.132 - 133
25
interpretation. Judges are not at liberty add to or take from or modify the letter
of the law, simply because they have reason to believe that the true sententia
legis is not completely or correctly expressed by it. “
Furthermore, this position is also accepted by the famous authors on “Statutory
Interpretation” Sir Rupert Cross, John Bell and George Engle in their work
titled “Statutory Interpretation” wherein they wrote as quoted hereinbelow;
“It is submitted that the following is a reasonable brief and accurate statement
of the rules of English statutory interpretation:
1. The judge must give effect to the grammatical and ordinary or, where
appropriate, the technical meaning of words in general context of the statute;
…………….. 2. If the judge considers that the application of the words in their
grammatical and ordinary sense would produce a result which is contrary to
the purpose of the statute, he may apply them in any secondary meaning which
they are capable of bearing”15
This approach where the Literal Rule is accorded the priority over all other
canons or principles of interpretation in Tanzania was manifested in the case of
Singida Regional Trading Company Vs Tanzania Posts &
Telecommunication Corporation [1979] L.R.T No. 11 wherein Chipeta, J (as
he then was) held as quoted hereunder;
“The cardinal canon of construction of statute is to give the words used in a
statute their ordinary plain meaning. Generally speaking, therefore, the court
must be content to accept the ordinary and plain and plain meaning of words
used in a statute as conclusive evidence of what legislature has said and
ment.”16
Also was taken by Weston, Biron and Reffe, JJ (as they then were) in the case
of Mwinyimadi RamadhanVs Republic Criminal Appeal No. 150 of 1963.
It is now clear that the general rule is that the court in the process of
Sir Rupert Cross et al, “Statutory Interpretation” 2nd Edition at pg. 47
Singida Regional Trading Company Vs Tanzania Posts & Telecommunication Corporation [1979] L.R.T No.
11 at pg. 124
15
16
26
interpretation of statute must apply Literal Rule unless there is ambiguity or
absurdity. The words used in Section 25 (1) of The Constitution Review Act,
2011 are in themselves precise, clear and unambiguous, then no more can be
necessary than to interpret those words in their natural and ordinary sense. Now
applying Literal Interpretation to provisions of Section 25 of The Constitution
Review Act, 2011, the meaning which is clear is that the Constituent Assembly
has the following powers;
a) Power to make or enact provisions for the New Constitution of
the United Republic of Tanzania
b) Power to make consequential and transitional provisions to the
enactment of such Constitution
c) Power to make such other provisions as the Constituent
Assembly may find necessary.
The clause “other provisions as the Constituent Assembly may find necessary”
simply means other provisions of the New Constitution or other consequential
and transitional provisions to the enactment of New Constitution or any
provisions other than provisions of New Constitution and consequential and
transitional provisions. Since the words used in Section 25 (1) of The
Constitution Review Act, 2011are precise, clear and unambiguous and are not
tainted with absurdity we are legally obliged to interpret them literally by assign
those words their ordinary or literal meaning. Golden Rule, Mischief Rule and
Purposive Approach cannot apply to the words used in provisions of Section 25
(1) of the Act because there is no absurdity or ambiguity or any other problem
of interpretation which justify their application.
On Literal Rule of Interpretation of statute you may also refer the following
caseswhich has force of law in Tanzania. R Vs Omar Kindamba & Others
[1967] EA 752, and National Bank of Commerce Vs J.M Sinzobakwila [1978]
L.R.T No. 39
However, this general rule as to the application of Literal Rule admits several
exceptions which permits courts to apply others Canons of statutory
interpretation like Golden Rule, Mischief Rule, Purpose Approach and
Integrated Approach or other aids, directives and guides to statutory
interpretation such as Logical Aids, Internal Aids and External Aids to Statutory
Construction or Presumption Applied to Construction. Some of these exceptions
are elucidated hereunder;
27
SUB-PART III: EXCEPTION ON GROUND OF AMBIGUITY
The Mischief Rule is limited in application than the golden rule or the Literal
Rule, in that it can only be used to interpret a statute and, strictly speaking, only
when the statute was passed to remedy a defect in the common law as it was
held in case of Heydon's Case (1584) 3 Co Rep 7a or The Mischief Rule can be
applied by the courts to resolve an ambiguity which is caused by the
application of the Literal Rule as it was held by Tindal CJ in case of Sussex
Peerage Case (1844)11 Clark & Finnelly 85-154 and 764-767 wherein Tindal,
CJ held as follows;
“If the words of the statute are in themselves precise and unambiguous, then no
more can be necessary than to expound those words in their natural and
ordinary sense. The words themselves alone do, in such case, best declare the
intention of the lawgiver. But if any doubt arises from the terms employed by
the Legislature, it has always been held a safe mean of collecting the
intention, to call in aid the ground and cause of making the statute …….”
In the case of Bi Hawa Mohamed Vs Ally Sefu, Civil Appeal No. 9 Of 1983
the Court of Appeal of Tanzania at Dar Es Salaam had an opportunity to
discuss the circumstances where Mischief Rule is applicable, wherein the
words of Nyalali, C. J., Makame, J. A. and Kisanga, J. A. are reproduced
hereunder in extenso;
“One such normal rule of construction of ambiguous provisions is the
MISCHIEF RULE. Under this rule, the court, in looking for the true
meaning of ambiguous, statutory provisions, is guided by the defect or
mischief which the statute was enacted to rectify or cure. On examination of
the Law of Marriage Act, 1971, and the law as it existed before its enactment,
one cannot fail to notice that the mischief which the Law of Marriage Act, 1971
sought to cure or rectify was what may be described as the traditional
exploitation and oppression of married women by their husbands. It is apparent
that the Act seeks to liberate married women from such exploitation and
oppression by reducing the traditional inequality between them and their
husbands in so far as their respective domestic rights and duties are
concerned.”
28
The position that Mischief Rule is applicable where there is mischief the
Parliament intended to cure was also taken in the case of Bernado Ephraim Vs
Holaria Pastory & Another (PC) Civil Appeal No. 70 of 1989 as per
Mwalusanya, J .
From the analysis immediately hereinabove and authorities cited to support it,
therefore, the Mischief Rule requires that the literal rule should be applied to the
statute in the first instance, but that if the literal rule results in an ambiguity the
court should try to interpret legislation in another manner so as to avoid the
ambiguity. There is no mischief the Parliament intended to cure in relation to
provisions of Section 25 of the Act, thus, Mischief Rule is inapplicable in the
circumstance on ground of absence of mischief to cure.
Again, Mischief Rule is inapplicable in the circumstance because there is no
ambiguity which justifies its application in lieu of Literal Rule. It should be
known that the word “ambiguity” is not synonymous with “unreasonability” or
“unacceptability”. The provision of Section 25 of the Act may be
“unreasonable” or “unacceptable” (publicly or politically unacceptable) still is
not ambiguous because the term “ambiguity” simply means a linguistic
construction such as word, phrase or sentence which has multiple meanings or
multiple interpretations or has more than one meaning. The Oxford Advanced
Learner’s Dictionary 8th Edition, 2010, at page 43 defines the term
“ambiguity” as follows;
“Ambiguity …….1 the state of having more than one possible meaning. …… 2
a word or statement that can be understood in more than one ways:”
Since there is no ambiguity in the provision of Section 25 of the Act
indispensably mischief rule is inapplicable to the said provisions.
On Mischief Rule of Interpretation of statute you may also refer the cases of
The New Great Insurance Co. of India Vs Lilian Cross & Another [1965] EA
90 which has force of law in Tanzania.
29
SUB-PART III: EXCEPTION ON GROUND OF ABSURDITY
It is a settled rule of interpretation that the court in the process of interpretation
of the statute should apply the Literal Rule of Interpretation by adhering to the
ordinary, natural and plain meaning of the words used in statute, and to the
grammatical construction, unless leads to any manifest absurdity in which case
the language may be varied or modified so as to avoid such absurdity whereby
court is enjoined to apply Golden Rule for purpose of removing or avoiding the
absurdity only and not more than that.
In the case of Grey v. Pearson (1857) 6 HL Cas 61, 106; 10ER 1216,
1234.Lord Wensleydale held as he is quoted verbatim hereunder;
"It is 'the universal rule', that in construing statutes, as well as in construing all
other written instruments 'the grammatical and ordinary sense of the word is 'to
be adhered to, unless that would lead to some absurdity, or some repugnance or
inconsistency with the rest of the instrument, in which case the grammatical and
ordinary sense of the words may be modified, so as to avoid that absurdity and
inconsistency, but no further'.
Again in the case of Luke v. I.R.C. 1963 - Lord Reid had this to say;
“The general principle is well settled. It is only where the words are absolutely
incapable of a construction which will accord with the apparent intention of the
provision and will avoid a wholly unreasonable result, that the words of the
enactment must prevail. ...”
In the case of City of London Court Judge & Payne, R v [1892] CA Lord
Esher had this to say;
" If the words of an Act admit two interpretations, and if one interpretation
leads to an absurdity, and the other does not, the Court will conclude the
legislature did not intend the absurdity and adopt the other interpretation"
30
In the case of River Wear Commissioners v Adamson [1877] HL Lord
Blackburn described the golden rule as quoted hereunder;
"It is to be borne in mind that the office of the judge is not to legislate, but to
declare the expressed intention of the legislature even if that expressed intention
appeared to the court to be injudicious; and I believe that it is not disputed that
what Lord Wensleydale used to call the Golden rule is right viz. that we are to
take the whole statute together and construe it all together, giving the words
their ordinary significance unless when so applied they produce an
inconsistency or an absurdity or inconvenience so great as to convince the court
that the intention could not have been to use them in their ordinary signification
and to justify the court in putting on them some other significance which though
less proper is one which the court thinks the words will bear."
Therefore, the law requires that the literal rule should be applied to the statute in
the first instance, but that if the literal rule results in an ambiguity or absurdity
the court should try to interpret it in another manner so as to avoid the absurdity.
The provision of Section 25 of the Act is clear, unambiguous and precise
inevitably there is neither absurdity nor ambiguity in the said provision and the
said provision is neither repugnance nor inconsistency with the rest of the
legislation, therefore, golden rule is inapplicable in the circumstance. For
Golden rule to apply to interpretation, it must be proved that application of
Literal Rule leads or results into not only absurdity or repugnancy but leads or
results into manifest absurdity or manifest repugnancy as it was held in the case
of Becke Vs Smith [1836] 2 M & W 191 wherein Parke, B (as he then was) was
of the following view;
“It is a very useful rule, in the construction of a statute, to adhere to the
ordinary meaning of the word used, and to the grammatical construction, unless
that is at variance with the intention of legislature, to be collected from the
statute itself or leads to any manifest absurdity or repugnance, in which case
the language may be varied or modified, so as to avoid such inconsistence, but
not further”17
17
Becke Vs Smith [1836] 2 M & W 191 at pg. 195
31
The term “absurd” was defined by State of Michigan Court of Appeal in the
case of Ellen D. Mcghee, Vs Bill Gene Helsel, SR., 262 Mich App 221, 226
(2004) wherein Gage, P.J., and O’Connell and Zahra, JJ. Defined it as follows;
“Absurd has been defined as utterly or obviously senseless, illogical, or untrue;
contrary to all reason or common sense; laughably foolish or false………….. A
result is not absurd merely because reasonable people viewing a statute with
the benefit of hindsight would conclude that the Legislature acted
improvidently.”
From the definition by State of Michigan Court of Appeal, prima facie
understanding of the term “absurd” is that the term “absurd” is over and
above unreasonability or ignorance or stupidity because “absurdiy” is contrary
to all reasons, common sense and logic inevitably manifest absurdity is more
than “absurdity” and the condition sine quo non for Golden Rule to apply is
where the literal interpretation of a word, phrase, sentence or any other
linguistic construction leads to “manifest absurdity” and not a mere absurdity
which is not manifest or obvious. Viewing the provisions of Section 25 of The
Constitution Review Act, 2011 from historical perspective no one can conclude
that it is unreasonable let alone absurdity because the Constitution Making
Practice historically proves that the Constituent Assembly has been always
tasked with the function of enacting or making provisions of the New
Constitution, this is not something new because Section 2 (1) and (2) The
Constituent Assembly Act, 1962 and the Preamble entrenched in The
Constitution of United Republic of Tanzania, 1977 proves that the
Constituent Assembly of 1962 and the Constituent Assembly of 1977 made or
enacted the provisions of New Constitution. That being the case, the provisions
of Section 25 of The Constitution Review Act, 2011 is neither unreasonable nor
absurd nor manifest absurdity.
On Golden Rule of Interpretation of statute you may also refer the cases of
National Grindlays Bank & Co.Vs Kentiles & Co.[1966] EA 71 which has
force of law in Tanzania.
32
SUB-PART V: PURPOSIVE APPROACH
The purposive approach to statutory interpretation intends to discover the
purpose behind the enactment of statute when the court is interpreting the words
used in legislation or an Act of Parliament. The purposive approach to statutory
interpretation prefers to be guided by external aids to statutory interpretation
especially Hansard of Parliament and Bill where the intention or purpose of law
can be clearly manifested and sometime intention or purpose of law can be
manifested by internal aids to statutory interpretation such as Preamble and
reading statute as whole (“Statute should be Read as a Harmonious Whole
Rule”).
In Tanzania purposive approach to statutory interpretation was adopted from
English Common Law and applied in the case of Joseph Warioba V Stephen
Wassira and Another 1997 [TLR] 272as per Kisanga JA, Samatta, JA and
Mroso Ag JA.
In the case of Pepper v Hart [1992] 3 WLR 1032Lord Griffiths on the
purposive approach had this to say:
"The days have passed when the courts adopted a literal approach. The courts
use a purposive approach, which seeks to give effect to the purpose of
legislation and are prepared to look at much extraneous material that bears
upon the background against which the legislation was enacted.”
Lord Simon on purposive approach in case of Maunsell Vs Olins [1975] AC
373had this to say;
'The first task of a court of construction is to put itself in the shoes of the
draftsman – to consider what knowledge he had and, importantly, what
statutory objective he had …being thus placed…the court proceeds to ascertain
the meaning of the statutory language.’
33
The purpose of the law (The Constitution Review Act, 2011) can be ascertained
where we are guided by two approaches to statutory interpretation namely
1. “The Harmonious Whole Rule”
2. External Aids to Statutory Interpretation
3. Reading Statute in Tandem
It should be noted here that I am going to discuss “Statute should be Read as
Harmonious Whole Rule” only consequently the External to Statutory
Interpretation is going to be discussed independently immediately thereafter,
therefore, when you read External Aids to Statutory Interpretation herein
though discussed independently you must link it with the Purposive Approach
to Statutory Interpretation or External Aids should be read in relation to
Purposive Approach to Statutory Interpretation herein.
i.
“The Harmonious Whole Rule”
The fundamental rule of interpretation is that an Act of Parliament should be
read as a harmonious whole whereby several parts of statute are interpreted
within their wider statutory context in a way that promotes purpose of law. The
meaning of one statutory provision may be derived from other provision of
statute by looking the relationship of one provision and the other provisions in
relation to whole statute or by inferring the purposes of statute from the statute
as a whole, and from overall structure of statute. “The Harmonious Whole
Rule” requires us or the court to view the wider context of the whole statute
into which the law is embodied.
In United States of America, Scalia, J in the case of United Savings Ass’n v.
Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988) on
“Harmonious Whole Rule” expressed the view quoted verbatim hereunder
“Statutory construction . . . is a holistic endeavor. A provision that may seem
ambiguous in isolation is often clarified by the remainder of the statutory
scheme — because the same terminology is used elsewhere in a context that
makes its meaning clear, or because only one of the permissible meanings
produces a substantive effect that is compatible with the rest of the law.”
34
Again in 1850 Chief Justice of United State Mr. Taney in the case of United
States v. Boisdoré’s Heirs, 49 U.S. (8 How.) 113, 122 (1850) elucidated the
rule as provided hereinbelow;
“In expounding a statute, we must not be guided by a single sentence or
member of a sentence, but look to the provisions of the whole law, and to its
object and policy.”
Now when I read The Constitutional Review Act, 2011 as harmonious as whole
I come with only one conclusion that the Constituent Assembly was conferred
power to enact the New Constitution and not power to approval the New
Constitution in which case the Constituent Assembly would not have power to
change any provision of Draft Constitution as it was the case of Kenya where
the Parliament of Republic of Kenya acting as the Constituent Assembly was
conferred power to approval or disapprove the Draft Constitution only and it
was not permitted to change even a punctuation mark in Draft Constitution as
per Section 33 (4) (a) of The Constitution of Kenya Review Act [CAP. 3A R.E
2009]and whenever there was a need to amend Draft Constitution whereby the
Parliament was require to propose amendments and submit such proposed
amendments to the Committee of Experts as required by Section 33 (4) (b) of
The Constitution of Kenya Review Act [CAP. 3A R.E 2009] (already quoted
hereinabove) and it should be noted that provisions of Section 25 of the Act is
not in pari materia with Section 33 (4) (a) of The Constitution of Kenya
Review Act. Now should the parliament intended to prohibit the Constituent
Assembly from changing the Draft Constitution the Parliament would have used
the word “APPROVE” or other words of similar nature as it was in Kenya and
would the parliament intended to limit power of the Constituent Assembly to
amendments or improvements of the Draft Constitution only the Parliament
would have used the word “ amend” , “improve” or other words of similar
nature and it would have entrenched the Provision of Law or the Schedule into
law prescribing matters which the Constituent Assembly is prohibited to
change, amend or vary in, or remove from, the Draft Constitution as it was the
case of Republic of South African whereby “Fourth Schedule” and “Chapter
Five” and of more importance Section 71 of The Constitution of the Republic
of South Africa Act 200 of 1993expressly prescribe “The 34 Constitutional
Principles” which the Constitutional Assembly of Republic of South Africa
were prohibited to change, amend or modify. The member of Parliaments were
aware of the constitution making process of other country such as that of South
Africa but did not deliberately adopted it to impose limitation on the Constituent
Assembly this is revealed by The Hansard of Parliament dated 18th November,
35
2011, which tells us that Honorable Ritta E. Kabati at page 63 of the Hansard
said as follows;
“Mheshimiwa Spika,utaratibuwa Bunge kujigeuza kama Constitution Assembly
wakatiwa kutunga Katiba mpya ya nchi kama sikosei ulitumiwa na
AfrikaKusini na hivyo kutungwa kwa Katiba ya sasa ya nchi hiyo.”
Instead the Parliament in Section 25 (1) of the Act used the words “The
Constituent Assembly shall have and exercise powers to make provisions for
the New Constitution of the United Republic of Tanzania ”The word “MAKE”
in Section 25 (1) of the Act in relation to the context of New Constitution when
is linked with other provisions of the same statute such as Section 3 of the Act
which defines the phrase “ Proposed Constitution”, “Commission” “fora” and
“referendum”, Section 4 of the Act which set out objectives of the legislation,
Section 9 of the Act which provides functions of the Commission, Section 18 of
the Act which establishes and prescribe the function of Fora for Constitutional
Review, Section 28 of the Act which deals abatement of power of Constituent
Assembly, Section 31 of the Act which deals with holding of referendum and
Section 34 of Act which deals with the rights of members of public to vote in
referendum, the indispensable conclusions is that the legislation creates five
stages of in the Constitution Making Process (Constitutional Review Process)
and five Key Players or institutions for every stage each with key function as
provided hereunder;
1. The Constitutional Review Commissionfor purposes of co-ordination
.collection of public opinions on the Constitution and preparation of the
Draft Constitution.
2. The Fora For Constitutional Review to give opinion on the Draft
Constitution for purpose of review of the Draft Constitution by the
Commission
3. The Constituent Assembly for purpose of making provisions for the
New Constitution of the United Republic of Tanzania
4. National Electorate (All Voters at National Level) for purpose of
approval of the “Proposed Constitution” enacted by Constituent
Assembly.
5. The Presidency (President) to promulgate the New Constitution.
36
The Hansard of Parliament dated 18th November, 2011, tells us that Honorable
Minister of Constitutional Affairs and Justice while responding to issues raised
by members of Parliament at page 79 of the Hansard said as follows
“…..Tume inakwenda kwa Wananchi kukusanya maoni, yakitokakule yanarudi,
wanaandikwa vizuri, baada ya kuandika wanarudi kwenye Mabaraza kuwauliza
jamani hayo ndiyo mliyoyapendekeza wanasema ndiyo; tunapitia kwenye Bunge
Maalum, tunapitia kwenye referendum; jamani procedures zote hizi tuna
wasiwasigani? (Makofi)”
In the light of analysis hereinabove, any argument that the Constituency
Assembly has no power to change the Draft Constitution in whole or in part or
that the Constituency Assembly cannot change some provisions of the Draft
Constitution is contrary to the purpose of the law because the law distributes
powers and functions to each key player including the Constituent Assembly
which was given power to enact new constitution without any substantive
limitation, id est, limitations as to the contents of the New Constitution, the law
imposed on the Constituent Assembly the procedural limitations only, id est,
procedures which the Constituent Assembly is required comply with in the
process of making new constitution including procedure as to the election of its
Chairperson and procedure as to decision making governed by Two Third
Majority Rule from both parts of the union.
ii.
Reading Provisions of the Same Law in Tandem
Again, when provisions of Section 25 of The Constitution Review Act, 2011
when is read in tendem with Sections 3 of the same Act where it defines the
term “Proposed Constitution” and Section 20 (2) of the same Act dealing with
presentation of Draft Constitution to the Constituent Assembly and Section 28
(1) and (2) of the same Act within the ambit of “Harmonious Whole Rule” the
indispensable conclusion is that the Constituent Assembly was conferred power
to enact the provisions of New Constitution without substantive limitations and
it was not given power to approval the Draft Constitution but to enact the New
Constitution. The said provisions of Sections 3, 20(2), 28 (1) and (2) of The
Constitution Review Act, 2011 are reproduced verbatim hereunder;
37
“28.-(1) After the enactment of the proposed Constitution, consequential and
transition provisions, the Constituent Assembly shall stand dissolved and
powers to enact provisions for the proposed Constitution, consequential and
transition provisions shall abate.
(2) Dissolution of, and abatement of powers of the Constituent Assembly shall
not be construed as derogating powers of the President to reconstitute the
Constituent Assembly for enactment of provisions amending the proposed
Constitution.”
“20.-(1) ……………………………………………………………………
(2) The President shall, within thirty days after receiving the report, publish the
Draft Constitution in the Gazette and other local newspapers with a statement
that the Draft Constitution shall be presented to the Constituent Assembly for
enactment of the proposed Constitution.”
“3. In this Act, unless the context otherwise requires:
………………………………………………………………………………………………
………………………………………………………………………………………………
……………..
“Proposed Constitution” means an enactment of the Constituent Assembly
which is the subject of the referendum;”
Now it is clear that the Constituent Assembly was not conferred power to
approve or amend or improve the Draft Constitution but it is clear that the
Constituent Assembly was conferred power to enact the provisions of New
Constitution and this is justified by consistent and frequent uses of the terms
“enact” , “enactment” and “pass” throughout the relevant law especially
provisions of Sections 3, 20(2), 28 (1) and (2) of The Constitution Review Act,
2011. The common law generally and common law of Tanzania in particular
permits the use of “Dictionary” in the process of statutory interpretation as it
was the fact in the case of Adamu Kisute & 2 Others Vs Mbaraka Williaman,
Civil Appeal No. 6 of 1980 as per Mwaikasu, J wherein the High Court sought
aid from Osborn’s Concise Law Dictionary, 5th Edition to determine the
meaning of the word “Suit”. Now I hereby invite the dictionary to determine the
meaning of the terms terms (1) “enact”, (2) “enactment” and (3) “pass”. These
terms are defined by “Black’s Law Dictionary” 7th Edition edited by Bryan
38
Garner as follows;
“enact, vb. 1. To make into law by authoritative act; to pass.”18
“enactment, n. 1. The action or process of making into law.”19
“pass, vb ………. 3. To enact (a legislative bill or resolution).”20
Now the definition of terms “enact”, “enactment” and “pass” from “Black’s
Law Dictionary” suffice to say that the Constituent Assembly has power to
make the provisions of the New Constitution, or in pure language of law, to
enact the provisions of the New Constitution and not to amend or improve or
modify the Draft Constitution submitted to it by the Chairperson of the
Constitution Review Commission as argued by “the Limited Power School of
Thought”.
SUB-PART VI: EXTERNAL AID TO INTERPRETATION
External Aids to Construction are matters which are contained outside the
statute which guides the Court in process of interpretation of statutes where
there is a problem of interpretation. External Aids to Construction includes bill,
dictionary, statute in pari materia, international agreements, official reports,
text books, academic writings, and Hansard , among others. Because there is
contentious opinion regarding the true legal meaning of Section 25 (1) of The
Constitution Review Act, 2011, I am going to use the Hansard of Parliament to
know the purpose behind the provisions of Section 25(1) of the Act.
18
Bryn Garner “Black’s Law Dictionary” 7th Ed at pg 546
19
Ibid.
Op. cit. at pg. 1145
20
39
Lord Brown Wilkinson on reference to Hansard in the case of Pepper v Hart
[1992] 3 WLR 1032 had this to say;
".In my judgment, subject to the questions of the privileges of the House of
Commons, reference to Parliamentary material should be permitted as an aid
to the construction of legislation which is ambiguous or obscure or the literal
meaning of which leads to an absurdity."
Now let us have a look on some contributions made by members of Parliament
during the discussion of The Constitutional Review Bill, 2011 from 14th
November, 2011 to 18th November, 2011 when it was enacted into law by
Parliament.
The Hansard of Parliament dated 18th November, 2011, tells that Honorable
Christopher Ole Sendeka made the following contribution at page 92 of the
Hansard;
“Mheshimiwa Mwenyekiti pamoja na ukweli kwamba Bunge Maalum la
Katiba litakuwa juu ya Katiba ya sasa, linafanya kazi kwa niaba ya
Watanzania, lakini kwakuwa ni rai ya Serikali yangu kwamba pengine hili
lishughulikiwe hapa badala ya kwenda kushughulikiwa na Bunge Maalum, basi
naomba nikubaliane na Attorney General. (Makofi)”
The Hansard of Parliament dated 18th November, 2011, tells us that Honorable
Sylvester M. Mabumba made the following contribution at page 53 of the
Hansard;
“Mheshimiwa Spika, Ibaraya 23(1) inasema kwamba, “Bunge la Katiba,
litakuwana Mamlaka na litatumia mamlaka hayo kutunga upya Katiba ya
Jamhuri ya Muungano wa Tanzania na kutunga masharti yatokanayo, masharti
ya mpito na vilevile kutunga na kuweka masharti mengine kama Bunge la
Katiba litakavyo ona inafaa.” Kwa nukuu hii, Bunge la Katiba litakuwa na
nguvu zote na kwa vile litakuwa limeundwa kwa utaratibu unaokubalika.
Hivyo na shauri Ibara ya 24(3) ifutwe kwenye Muswada huu ili kulipatia fursa
Bunge la Katiba kujiwekea utaratibu unaofaa katika kupiga kura za uamuzi na
maamuzi mengineyo.”
40
The Hansard of Parliament dated 17th November, 2011, says that Honorable
Zahra Ali Hamad made the following contribution at page 45 of the Hansard;
“Mheshimiwa Spika, pia kwenyekifungu cha 20, pametajwa pale Wabunge
ambao watashiriki katika Bunge la Kutunga Katiba”
The Hansard of Parliament dated 17th November, 2011, reveals that Honorable
Ali Khamis Seif made the following contribution at page 38 of the Hansard;
“Ukiangalia utaratibu wakupiga kura katika Bunge la Kutunga Katiba
,nilazima zipatikane theluthi mbili za Wazanzibari na theluthi mbili za
Watanzania Bara. (Makofi)”
The Hansard of Parliament that dated 16th November, 2011, shows that
Honorable Andrew J. Chenge made the following contribution at page 45 of
the Hansard;
“Mamlaka ya kutunga Katiba mpya siyo mamlaka ya Bunge lililopo na ndiyo
maana tunasema hivi, Katiba unaanza kusema Katiba ilizaliwa na wananchi
wenye mamlaka na nchi yao kupitia Bunge Maalum kama
inavyopendekezwa. Bunge kama creature, mtoto wa Katiba haliwezekani
likaifuta Katiba hiyo. Linachoweza kufanya ni kufanya marekebisho
tu.Wanaosema kwamba tungekuja kurekebisha, haiwezekani, hiyo kazi ndiyo
itaendakufanywana BungeMaalum la Katiba. (Makofi)”
The inevitable conclusion which can be derived from contribution made by
some members of parliament is that the intention of parliament when enacting
The Constitution Review Act, 2011 was to confer to the Constituent Assembly
power to make or enact the New Constitution as is justified by frequent use of
the phrase “Kutunga Katiba” and it was not the intention or purpose of
Parliament to confer to the Constituent Assembly power approve or modify or
amend, improve or vary the Draft Constitution with limitations, if that would be
case the members of parliaments would frequently throughout the discussion
have used the phrase like “dhibitisha” “boresha” or “fanya mabadiko madogo”
or other phrase of similar nature.
41
Also, it was the purpose of parliament to confer to the Constituent Assembly
unlimited power to make the New Constitution as can be justify by
“smultenously bolded, italised and underlined words “ of Honorable
Christopher Ole Sendeka, Sylivester Mabumba and Andrew Change as quoted
from Hansard of Parliament hereinabove.
SUB-PART VI: EXPRESS
INTERPRETATION
DIRECTIVES
TO
STATUTORY
Express Directives to Statutory Interpretation means provisions of Written Law
which expressly prescribe on how subsidiary legislation, statute or constitution
should be interpreted or provisions of Written Law which expressly prescribe
on how words, phrases, and other linguistic construction used in statute or other
law should be interpreted. Express Directions on Statutory Interpretation
includes interpretation Acts like The Interpretation of Law Act [CAP. 1 R.E
2002] and interpretation sections found within many subsidiary legislations,
statutes or constitutions. The Interpretation of Laws Act [CAP. 1R.E 2002] is
applicable to The Constitution Review Act, 2011by virtue of Section 2 of The
Interpretation of Laws Act [CAP. 1R.E 2002].
Section 25 of The Constitution Review Act, 2011 (Swali Version), id est,
Kifungu cha 25 cha Sheria ya Mabadiliko ya Katiba ya 2011 reads as
quoted hereinbelow;
“25. – (1) Bunge Maalum litakuwa na mamlaka ya kujadili na kupitisha
masharti ya katiba inayopendekezwa, kutunga masharti yatokanayo kama
Bunge Maalum litakavyoona inafaa.
(2) Mamlakaya Bunge Maalum ya kupitisha masharti ya katiba
inayopendekezwa yatakayotekelezwa baada ya Rasimu ya Katiba
kuwasilishwa na Mwenyekiti wa Tume na kupitiswana Bunge Maalum”
If one reads Swahili Version in respect of Section 25 of The Constitution
Review Act, 2011, the prima facie impression which you get is that the
Constituent Assembly has power to approval the Draft Constitution without
power to amend, change, vary or improve any provision of Draft Constitution as
this is suggested by the use of Swahili word “kupitisha” which literally may be
42
interpreted in English Language to mean “approve”. This prima facie
impression may be cemented by the argument that the Parliament used the word
“kupitisha” to confer power to the Constituent Assembly to approve the Draft
Constitution only without power to change it on ground that should the
Parliament intended to confer power to the Constituent Assembly to enact the
Draft Constitution with all power to effect any change, amendment, or variation
inevitably the Parliament would have used the Swahili Word “kutunga”
[Katiba Mpya] which in English Language can be literally interpreted to mean
“enact” [New Constitution].
This argument sounds valid and strong in logic but sounds weak and invalid in
law because of Section 84 of The Interpretation of Laws Act [CAP. 1R.E
2002] which provides as reproduced hereunder;
84.Language of the Laws of Tanzania
(1) The language of the laws of Tanzania shall be English or Kiswahili
or both.
(2) Where any written law is translated from one language into another
and published in both languages, then in the case of conflict or doubt as to
the meaning of any word or expression, the version of the language in
which the law was enacted shall take precedence.
(3) Where any written law is enacted in both languages and there
occurs a conflict or doubt as to the meaning of any word or expression, the
English version shall take precedence.
Section 84 (3) of The Interpretation of Laws Act [CAP. 1R.E 2002] provides
that a where a law is enacted in both English and Swahili Languages and doubt
or conflict of meaning of any word or expression arises inevitably the English
Version takes precedence or prevails over Swahili Version. Section 84 (2) of
The Interpretation of Laws Act [CAP. 1R.E 2002] provides that in the case of
conflict or doubt as to the meaning of any word or expression, the version of the
language in which the law was enacted shall take precedence. Now there is
conflict of meaning as Swahili Version uses the word “KUPITISHA” which
suggest that the Constituent Assembly has “power to approve” the Draft
Constitution only in the Constitutional Review Process whereas the English
Version uses the words “MAKE” in Section 25 (1) of the Act, “PASS” in
Section 25 (2) of the Act and “ENACT” in Section 28 (1) and (2) of the Act all
words of which suggest that the Constituent Assembly has “power to enact” the
Draft Constitution in the Constitutional Review Process. Since there is a doubt
or conflict of meaning as to which word is legally appropriate between word
43
“enact” and word “approve” , the English Version must takes precedence or
must prevails over Swahili Version indispensably the legally appropriate word
is “enact” and not “approve”. Therefore, Constituent Assembly has power to
enact the provisions of New Constitution without any limitation as to substance
but with procedural limitation inevitably the Constituent Assembly can change,
amend, vary or improve the provisions of the Draft Constitution to the extent it
may be pleased and even to change the whole Draft Constitution or substitute
the Draft Constitution submitted by Chairperson of Constitutional Review
Commission with its own “Proposed Constitution” which is completely
different from the Draft Constitution.
Unfortunate to Limitedism School of Thought still the word " PITISHA"
entrenched in provisions of Section 25 (1) of The Constitution Review Act,
2011 of the Swahili Version (Kifungu cha 25 cha Sheria ya Mabadiliko ya
Katiba ya 2011) is ambiguous as it can mean or it can be translated in English
Language to mean "APPROVE" or to mean "PASS". The “Tuki Kamusi ya
Kiswahili-Kingereza” (Tuki Swahili-English Dictionary) published in 2001 by
the then Institute of Swahili Research of University of Dar es Salaam (Taasisi
ya Uchunguzi wa Kiswahili) translates the word “PITISHA” in English
Language as follows;
“pitish.a kt [ele] pass something, handover something, authorize: ~ azimio pass
a resolution; ~ hoja pass a motion; ~ muda/ wakati pass the time; ~ sheria pass
a law. (tde) pitishia; (tdk)”
The “Tuki Kamusi ya Kiswahili-Kingereza” translates the word “PITISHA”
when used in legal context in English Language to mean "PASS". And the
word "PASS" is defined by Black’s Law Dictionary to be synonymous with
the word "ENACT". That being the case, the word “PITISHA” used in
Swahili Version of Section 25 (1) of The Constitution Review Act, 2011 may
also mean “ENACT” the fact that diminish the value of argument put forward
by protagonists of “Limitedism” School of Thought” that the word
“PITISHA” means “APPROVE”. The meaning of word PITISHA” as derived
from the “Tuki Kamusi ya Kiswahili-Kingereza” cements the fact that the
Constituent Assembly has power to enact the provisions of the New
Constitution and not approve the same. The accurate Swahili word which means
“APPROVE” is the word “THIBITISHA” or the word “IDHINISHA” or
“AFIKI” or “KUBALI” as is justified by language usage of four Swahili
words. Also The Tuki English-Swahili Dictionary Second Edition (Kamusi ya
44
Kingera-Kiswahili) translates the word “APPROVE” in Swahili Language as
follows;
approve vt, vi 1 sifu, penda. 2 (sanction) afiki, kubali, thibitisha, idhinisha ~ the
minutes of the meeting thibitisha kumbukumbu za mkutano. 21
If the Parliament intended to confer on the Constituent Assembly power to
approve the Draft Constitution only inevitably the Parliament would have used
one of clear and unambiguous Swahili word which means “APPROVE” such as
“THIBITISHA” or “IDHINISHA” or “AFIKI” or “KUBALI” but the
Parliament chooses to use the word “PITISHA” which is ambiguous and
unclear which may mean “pass” (enact) or “approve” . The word “PITISHA”
on balance of probabilities in relation to circumstances of The Constitution
Review Act, 2011 it is most likely to mean “Enact” or “Pass” rather than to
mean “approve”.
SUB-PART VII: LOGICAL AIDS TO STATUTORY INTERPRETATION
i.
Noscitur a Sociis Rule
Logical Aids to Statutory Interpretation which is relevant to guide us in the
process of interpretation of Section 25 (1) of The Constitution Review Act,
2011 is “Noscitur a Sociis” which laterally means “it is known from its
associates”. “Noscitur a Sociis” is logical aid to statutory interpretation which
provides that the meaning of an ambiguous word can be determine by reference
to the words associated with it in the same statute. The aid is applicable when
the word, phrase, clause or sentence subject matter of interpretation is grouped
together with two or more linguistic constructions of similar nature that have
similar or identical or associated or related meanings. There is a “perceived
ambiguity” (as opposed to “real ambiguity”) in the “last (third) clause”22 of
Section 25 (1) of The Constitution Review Act, 2011 as expressed by
Hamphrey Polepole, the Commissioner of Constitutional Review Commission.
The said clause provides as follows: “...…..and to make such other provisions
as the Constituent Assembly may find necessary”. The meaning of this clause
21
The Tuki English-Swahili Dictionary (Kamusi ya Kingera-Kiswahili) was published in 2000 by Taasisi ya
Uchunguzi wa Kiswahili (TUKI); Second Edition
22
“ …… and to make consequential and transitional provisions to the enactment of such Constitution”
45
can be determine by reference to the two clauses proceeded it which are in the
same section and associated with it as all deals with power of the Constituent
Assembly. The phrase “such other provisions” refers to provisions of first
clause 23 regarding power of enactment or making provisions of New
Constitution by the Constituent Assembly and also refers to second clause24
regarding power of the Constituent Assembly to make consequential and
transitional provisions regarding New Constitution. Now the phrase “such other
provisions” in the third clause of the Section 25 (1) of the Act means provisions
of New Constitution and consequential and transitional provisions enacted by
the Constituent Assembly.
ii.
Expressio Unius Est Exclusion Alterius Rule.
Expressio Unius Est Exclusion Alterius Rule25 means that the expression or
mentioning of one person, thing, concept, power or function implies the
exclusion of all others. Where a statute expressly limits itself to certain matters,
it may not, by interpretation or construction, be extended to other matters which
have not been expressly mentioned or provided. This sometimes referred to as
the Rule of restrictive interpretation. For example, in the case of Tate v. Ogg,
195 S.E. 496, 499-500 (Va. 193826) statute expressly prohibited “any horse,
mule, cattle, hog, sheep, or goat” from running upon lands enclosed by a fence
but it did not expressly mention “turkeys” because the statute did not explicitly
mention turkeys the court held that turkey was excluded. This rule was also
discussed in case of Dimbleyby & Sons Ltd Vs National Union of Journalists
[1948]1 ALL ER 751. The fact that provisions of Section 3, 25, 28 of The
Constitution Review Act, 2011 expressly mentioned the words “enact”
,”enactment” “pass” and “make” in relation to power of the Constituent
Assembly in the Constitutional Review Process means that the statute intended
to exclude the words “approve” , “approval”, “amend” or “improve”. That,
being the case, the statute intended to confer power of enactment of New
Constitution to the Constituent Assembly without limitation as justified by
exclusion of words “approve” , “approval”, “amend” or “improve” and
inclusion of words “enact” ,”enactment” “pass” and “make” in relation to
power of the Constituent Assembly in the Constitutional Review Process.
23
“The Constituent Assembly shall have and exercise powers to make provisions for the New Constitution of
the United Republic of Tanzania…”
24
“…..and to make consequential and transitional provisions to the enactment of such Constitution ….”
25
Sometime is referred to as. Expressium facit cessare tacitum
26
Jacob Scott, “Codified Canons and the Common Law of Interpretation” in The Georgetown Law Journal
Vol. 98 (2010) at pg 351.
46
iii.
Applicability of Ejusdem Generis Rule
The Commissioner of the Constitutional Review Commission, Mr Hamphrey
Polepole during the “Kipima Joto Programme” which was televised by ITV on
Friday of 28th February, 2014 argues that Ejusdem Generis Rule is applicable
to the interpretation of Section 25 (1) of The Constitution Review Act, 2011.
Mr Hamphrey Polepole argued that where there are first clause and second
clause in a sentence followed by the third clause which is the last clause, then
the third clause is applicable to the second clause and not the first clause, in
other words, the last clause (third clause) is applicable to the clause which
immediately proceeds it. From that premised Commissioner Polepole argued
that Ejusdem Generis Rule requires that third clause in Section 25 (1) of Act,
which states “and to make such other provisions as the Constituent Assembly
may find necessary” to apply to the second clause of Section 25 (1) of Act
which states “…..and to make consequential and transitional provisions to the
enactment of such Constitution ….” because the second clause immediately
proceeds the third clause inevitably the third clause does not apply to the first
clause which states that “The Constituent Assembly shall have and exercise
powers to make provisions for the New Constitution of the United Republic of
Tanzania…”.
Ejusdem Generis Rule is applicable where there is “General Word” that follow
“Specific Words” or general word appears very immediate after the list of
specific words in the statute, then general words is interpreted to include only
things, people, situations, objects, or enumeration of similar nature to those
things, people situations objects, or enumeration of the preceding words
specifically mentioned by statute or is interpreted to include only things, people
situations objects, or enumeration which fall within the similar class, category
or genus with those preceding words specifically mentioned by statute.
Alternatively, the words things expressly mentioned by statute are used to
determine other things or situations the Parliament intended to include.
With due respect to the Commissioner Hamphrey Polepole, I ask to differ. The
“Ejusdem Generis Rule” cannot apply to interpret the provisions of Section 25
(1) of The Constitution Review Act, 2011. Before I can make analysis of
applicability of Ejusdem Generis Rule to the interpretation of provisions of
Section 25 (1) of The Constitution Review Act, 2011, let us first visit the
circumstances in which “Ejusdem Generis Rule” is applicable as pronounced
by the decided cases and authours.
47
The famous case regarding the application of “Ejusdem Generis Rule” is the
case of Quazi Vs Quazi [1980] AC 744 wherein Lord Diplock elucidated the
application of “Ejusdem Generis Rule” as provided hereinbelow;
“The presumption then is that the draftsman’s mind was directed only to
[Genus indicated by the specific words] and that he did not, by his addition of
word “other” to the list, intended to stray beyond its boundaries, but merely to
bring within the ambit of the enacting words those species which completely the
genus but have been omitted from the preceding list inadvertently or in the
interests of brevity” 27
E. A. Driedger, in his work titled “Construction of Statute”, 2nd Edn. (1983)
described the application of Ejusdem Generis Rule as follows;
“Where general words are found, following an enumeration of persons or
things susceptible of being regarded as specimens of a single genus or category,
but not exhaustive thereof, their construction should be restricted to things of
that class or category, unless it is reasonably clear from the context or the
general scope and purview of the Act that Parliament intended that they should
be given a broader signification.”
The Supreme Court of India in the case of Amarchandra Chakrabotry Vs
Collector of Excise, AIR 1972 SC 1863 as per Sikri, CJ, Dua, Ray, Palekar,
Hameedullah, SCJJ prescribed five (5) precedent condition for application of
Ejusdem Generis Rule in following words;
“The ejusdem generis rule, strives to reconcile the incompatibility between
specific and general words. This doctrine applies when (i) the statute contains
an enumeration of specific words; (ii) the subjects of the enumeration constitute
a class or category-, (iii) that class or category is not exhausted by the
enumeration; (iv) the general term follows the enumeration and (v) there is no
indication of a different legislative intent.”
27
Quazi Vs Quazi [1980] AC 744 at pg. 807 and 80 8
48
From the explanation of the meaning and application of the Ejusdem Generis
Rule hereinabove, the Ejusdem Generis Rule applies to words which are not
expressly mentioned or expressly included in statute or omitted in statute
deliberately for purpose of brevity or omitted inadvertently but are impliedly
mentioned by statute by using General Words such as “any other”, “and many
others” “similar nature”, “et cetera” (i.e) or “among others”. The boldedunderilined-itiliced words hereinabove quoted from the case of Quazi Vs Quazi
and the case of Amarchandra Chakrabotry Vs Collector of Excise and from
work of Driedger justify the legal fact that Ejusdem Generis Rule applies to
words which are omitted in statute or which are not expressly mentioned but
which are impliedly mentioned or embodies in “General Word” That being the
case, the Commissioner of the Constitutional Review Commissioner, Mr.
Hamphrey Polepole either deliberately or inadvertently mislead the members of
the Legal Fraternity (Lawyers) and the members of General Public when he said
that the third clause of the provisions of Section 25 (1) of The Constitution
Review Act, 2011 is applicable to the second clause and is not applicable to the
first clause of the Section 25 (1) of the Act. The interpretation of Mr. Polepole
was and still is misleading and wrong application of the Ejusdem Generis Rule
because the Ejusdem Generis Rule applies to words which are not expressly
mentioned by statute the words of which have been mentioned impliedly by
entrenching the General Word in statute which immediately appear after the
Specific Words (words expressly or specifically mentioned by statute). Now,
since the the second clause was specifically or expressly mentioned by statute in
the provisions of Section 25 (1) of The Constitution Review Act, 2011
inevitably Ejusdem Generis Rule cannot apply to the the second clause of
Section 25 (1) of the Act, because Ejusdem Generis Rule applies to words
which are not expressly or specifically mentioned by law but it applies to words
which are impliedly mentioned by law of which are embodied in the “General
Word” which appears very immediately after the “Specific Words”. Therefore,
Ejusdem Generis Rule, in the circumstance is inapplicable to provisions of
Section 25 (1) of The Constitution Review Act, 2011.
49
PART E: PROFESSIONAL AND OFFICIAL OPINION ON MANDATE
OF THE CONSTITUENT ASSEMBLY.
SUB-PART I: ATTORNEY GENERAL’S POSITION ON MANDATE OF
THE CONSTITUENT ASSEMBLY.
It should be noted that the legal opinion given by Attorney General is given ex
cathedra, therefore, it must be taken seriously because under Section 23 of The
Office of the Attorney General (Discharge of Duties) Act, 2005, the legal
opinion given by the Attorney General is the legal position of the Government
on the matter unless it is otherwise revised by a court of competent jurisdiction
or otherwise recalled by the Attorney General. The Mwananchi News Paper
dated 22nd February, 2014 on its front page published news titled “Warioba
ampa somo Werema” wherein reported the position taken by Honorable
Attorney General of United Republic of Tanzania, Justice Fredrick Werema.
The Mwananchi News Paper at page 4 reported that Honorable Attorney
General took the position that the Constituent Assembly has power to enact the
New Constitution and can change any provision in the Draft Constitution except
that the Constituent Assembly has no power to change in any manner the matter
prescribed by the provisions of Section 9 (2) of The Constitutional Review Act,
2011. I am of the firm view that Honorable Attorney General is legally correct
in respect of his position that the Constituent Assembly has power to change
any provisions of the Draft Constitution as it may be pleased. However, humbly
and with due respect, I beg to differ with Honorable Attorney General in respect
of his position that the Constituent Assembly has no power to change the
matters prescribed by the provisions of Section 9 (2) of The Constitutional
Review Act, 2011 of which are reproduced verbatim hereunder;
"Functions of the Commission [Marginal Note]
9.-(1) The functions of the Commission shall be to:
(a) co-ordinate and collect public opinions;
(b) examine and analyse the consistency and compatibility of the constitutional
provisions in relation to the sovereignty of the people, political systems,
democracy, rule of law and good governance;
(c) make recommendations on each term of reference; and
(d) prepare and submit a report.
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(2) In the implementation of the provisions of subsection (1), the Commission
shall adhere to national values and ethos and shall, in that respect safeguard
and promote the following matters:
a) the existence of the United Republic;
b) the existence of the Executive, Legislature and the Judiciary;
c) the republican nature of governance;
d) the existence of Revolutionary Government of Zanzibar;
e) national unity, cohesion and peace;
f) a) the existence of the United Republic;
b) the existence of the Executive, Legislature and the Judiciary;
c) the republican nature of governance;
d) the existence of Revolutionary Government of Zanzibar;
e) national unity, cohesion and peace;
f) periodic democratic elections based on universal suffrage;
g) the promotion and protection of human rights;
h) human dignity, equality before the law and due process of law; and
i) existence of a secular nature of the United Republic that does not inclined to
any religion and that respect freedom of worship.”
i) existence of a secular nature of the United Republic that does not inclined to
any religion and that respect freedom of worship.”
The provisions of Section 9 (2) of The Constitutional Review Act, 2011is ex
facie clear, precise and unambiguous, thus, applying literal Rule simple answer
is that the matters prescribed by Section 9 (2) of the Act are substantive
limitations imposed on Constitutional Review Commission in the process of
performing its functions including function of preparing Draft Constitution.
Therefore, the Constituent Assembly is not bound by provisions of Section 9 (2)
of The Constitutional Review Act, 2011consequently the Constituent Assembly
has even de jure mandate to disregard what is named national values and ethos
in Section 9 (2) of the Act, however, the de facto mandate to disregard such
national values and ethos is practically limited, in other words, the Constituent
Assembly legally has unlimited power to do whatever it is pleased in respect of
its substantive power to enact the New Constitution, however, factually or
practically its power is limited because disregarding necessary, important and
sensitive political, social and economic matters, national values and ethos can
place “Proposed Constitution” enacted by it to be disapproved by the public, id
est, the National Electorate through referendum as per Section 36 (1) of The
Constitutional Review Act, 2011.
51
SUB-PART II: PROFESSIONAL OPINION ON MANDATE OF THE
CONSTITUENT ASSEMBLY
I admit without any reservation that it was cardinal mistake we committed as
nation to confer substantively unlimited power and superficially limited
procedural power to the public institution of the Constituent Assembly’s caliber
which has the destiny of the nation and its people and its future generations in
its hands in this sacred Constitutional Review Process as Professor Wade would
have put it “power corrupts, absolute power corrupts absolutely”. The fact that
we committed mistake in enacting The Constitution Review Act, 2011 is
accepted not only by protagonists of “Unlimitedism School of Thought” but
also by protagonists of “Limitedism School of Thought” and some members
of Parliament as revealed, among others, by the following people;
Onesmo Ole Ngulumwa 28 who is the trusted protagonists of “Limitedism
School of Thought” in his article titled “Madaraka na Mipaka ya Bunge la
Katiba la Tanzania” 29in his own words said the following;
“Tulifanya kosa kubwa kutunga sheria bila kuweka mipaka ya Bunge la
Katiba katika mfumo ambao mtu yeyote ambaye si mwanasheria angeweza
kuelewa kama ilivyo katika kifungu cha 9 kwa Tume. Nashauri Kanuni ziweke
mipaka ya Bunge hili vizuri kwa kuzingatia kifungu 25, kwani kifungu cha 9
hakina uhusiano na Bunge.”
The Member of Parliament who participated in the whole process of enactment
of The Constitution Review Act, 2011, Honorable Christopher Ole Sendeka in
his own words said the following;
“ Jamani ni lazima wale wazee wetu kwenye kamati ya mashauriano wakae
vizuri na wasikilizane vinginevyo siioni katiba mpya, hii sheria ina ombwe
kubwa sana …… tulioipitisha tunapaswa tujitizame mara mbili”30
28
Onesmo Ole Ngulumwa is analyst and activist of human and legal rights and the former officer of Legal and
Human Right Centre.
29
The article was posted in Moblog (www.dewjiblog.com) on 25th February 2014
30
This quottion is extracted from Tanzania Daima News Paper dated 10th March, 2014 at page 4
52
There is a great possibility of the Constituent Assembly to abuse its absolute
power absolutely, therefore, we should urgently find the sustainable and legal
solution to prevent the possible abuse of power by the Constituent Assembly. In
fact we made mistake ab initio but this does not mean that we should make
mistake ad infinitum instead we have to find sustainable solution to correct the
mistake and if it impractical to correct the mistake inevitably we have to
commence the Constitutional Review Process de novo. The solution to this
problem is not to misconstrue or misinterpret the clear provision of the law in
favour of what we think is good for nation and its people instead the sustainable
solution is to find legally acceptable process in which we can impose effective,
efficient and sufficient procedural and substantive limitations on the Constituent
Assembly for purpose of prevent the Constituent Assembly to abuse powers
conferred on it rather than to find assistance from misinterpretation or
misconstruction of clear provisions of law .
I subscribe to the idea of Madam Justice Rweyemamu in the case of Good
Samaritan Vs Joseph Robert Savari Munthu, Labour Revision No. 165 of
2011 when the her Ladyship was invited to determine Section 35 of The
Employment and Labour Relations Act, 2004 (Act No. 6 of 2004) which
provides that employee who works for less than six month are not entitled to
compensation and remedied of unfair termination under Section 40 of The
Employment and Labour Relations Act, 2004, her ladyship accepted without
any reservation that the said Section 35 of the Act No. 6 of 2004 may be
abused by employer by perpetually keeping employees under fixed terms
contract of short period which is less than 6 month to avoid payment of
compensation and other liability when employer terminates employee
unlawfully (unfairly) as result employees will be terminated unlawfully without
any protection or any remedy under law, yet her ladyship held that though the
law is unjust and oppressive to employee but such injustice or oppression
(mischief ) cannot be cured by, or the solution of the problem is not
misinterpretation or misconstruction of clear provisions of law but the solution
lies with the competent authorities. Madam Justice Rweyemamu in her own
words said as she is quoted verbatim hereunder in pleno;
“Section 35 specifically provides that “the provisions of this sub-part shall not
apply to an employee with less than 6 months employment with the same
employer, whether under one or more contracts………………….. I am not
oblivious of the fact that the said provision may be abused by employer who
may seeks to deny fair treatment to employee by keeping them perpetually under
53
fixed term contract of short periods………………… That mischief in my
opinion; cannot be prevented by misinterpreting a clear provision of the law.31
Now, the sustainable and best solution to this problem of failure to impose
substantive and procedural limitation to the Constituent Assembly to prevent
possible abuse of power is not to misconstrue or misinterpret the clear provision
of Section 25 of The Constitution Review Act, 2011 but the sustainable and best
solution is to find legally acceptable process in which we can impose effective,
efficient and sufficient procedural and substantive limitations on the Constituent
Assembly for purpose of prevent the Constituent Assembly to abuse powers
conferred on it. I am of the view that the legally acceptable process which we
should devise to impose effective, efficient and sufficient procedural and
substantive limitations is to invite the provisions of Section 25 (1) of The
Constitution Review Act, 2011 with a view of requiring the Constituent
Assembly before discussion of the Draft Constitution and before enactment of
“Proposed Constitution” the Constituent Assembly should invoke the clause “…
and to make such other provisions as the Constituent Assembly may find
necessary.” entrenched in the provisions of Section 25 (1) of the Act so that the
Constituent Assembly can enact the law which will impose procedural and
substantive limitations. For example, in the Republic of Namibia when the
Constituent Assembly met for the first time on 21 st November, 1989, the
members of the Constituent Assembly unanimously resolved to adopted “the
1982 Constitutional Principles” as a framework for Namibia’s new constitution
of which imposed both substantive and procedural limitations on itself.
Therefore, I am of the view that the Constituent Assembly of United Republic
of Tanzania should borrow the this good example from the Constituent
Assembly of Republic of Namibia consequently the Constituent Assembly
should enact law which will act as the both substantive and procedural
framework through which the New Constitution will be enacted by the
Constituent Assembly. Such framework law to be enacted by the Constituent
Assembly should impose effective, efficient and sufficient procedural and
substantive limitations on the Constituent Assembly for purpose of preventing
the Constituent Assembly to abuse its power. The said framework law should be
enacted by the Constituent Assembly as result of national consensus reached by
all stakeholders such as Political Parties, Religious Institutions, Workers
Associations, Private Sector, Business Community, Civil Society Organizations,
among others. The said framework law should prescribe the fundamental
Constitutional Principles which the Constituent Assembly will be prohibited to
change them of which must form part and parcel of provisions of “Proposed
Constitution” to be enacted by the Constituent Assembly. Some of these
Constitutional Principles, inter alia, should include the following;
31
Good Samaritan Vs Joseph Robert Savari Munthu, Labour Revision No. 165 of 2011 at page 4 and 5 of
printed ruling.
54
1.
2.
3.
4.
5.
6.
7.
8.
the republican and secular nature of government;
the promotion and protection of human rights;
Independence of Judiciary
periodic democratic elections based on universal suffrage
Rule of law;
The Supremacy of Constitution
Equality before the law and due process of law
separation of powers between the legislature, executive and judiciary,
with appropriate checks and balances.
9. Existence of local government
55
PART F: CONCLUSION
At this juncture it is pertinent to conclude that there are no “Substantive
Limitations” imposed by constitution, legislation, subsidiary legislation, case
law or any other law on the Constituent Assembly in the process of enacting
New Constitution and any contrary position is a suppressio veri, therefore, the
Constituent Assembly has power not only to improve, vary, modify or amend
the Draft Constitution but also can substantially or radically change it or can
substitute the Draft Constitution with its own “Proposed Constitution” which is
radically or completely different from the Draft Constitution submitted to the
Constituent Assembly by Chairperson of Constitutional Review Commission.
However, the statute has directly and indirectly imposed some “Procedural
Limitations” only including the two third Majority Rule. The indirect
procedural limitations have been imposed by sanctioning of The Standing
Order to be made by the Constituent Assembly as per Section 26 (1) of The
Constitution Review Act, 2011.
The solution to this problem is not to misconstrue or misinterpret the law in
favour of what we think is good for nation and its people instead the sustainable
solution is to find legally acceptable process in which we can impose effective,
efficient and sufficient procedural and substantive limitations on the Constituent
Assembly for purpose of prevent the Constituent Assembly to abuse powers
conferred on it. The legally acceptable process which we should devise to
impose effective, efficient and sufficient procedural and substantive limitations
is to invite the provisions of Section 25 (1) of The Constitution Review Act,
2011 so that the Constituent Assembly can enact the framework law founded on
national consensus which will impose effective, efficient and sufficient
procedural and substantive limitations on the Constituent Assembly for purpose
of preventing the Constituent Assembly to abuse its power. If the all interests
groups and all stakeholders reach consensus id idem on modus operandi of the
Constituent Assembly and its limitation on contents of the Proposed
Constitution inevitably such law will be implemented easily and will publicly
acceptable . This move to impose limitations on the Constituent Assembly
preferably should be initiated outside the Constituent Assembly itself as it is
almost impossible for the Constituent Assembly to limit its power suo motu
without pressure from outside.
56
Let this mistake we have committed for failure to impose effective, efficient and
sufficient procedural and substantive limitations to the Constituent Assembly in
respect of its power to enact constitution be a lesson to this nation and its
people. This mistake should not be repeated again, in future whenever we
establish important public institutions of similar nature must impose effective,
efficient and sufficient procedural and substantive limitations on the public
institution of similar nature for purpose of prevent it from abusing powers
conferred on such public institution.
Though, the power of Power of the Constituent Assembly is substantively
unlimited still the law puts the safeguard to prevent such substantively
unlimited power by imposing the mandatorily requirement of holding
referendum whereby the national electorate will have power to approve or
disapprove the “Proposed Constitution” enacted by the Constituent Assembly.
57