Rule of law in Tanzania

WORK OVERVIEW Our work will critically examine the application of the doctrine of rule of law advocated by Montesquieu in Tanzania. It will consist of the introductory part which will assert in defining the key terms and agendas of the given task, the main body will much concentrate on the application of the doctrine of rule of law as given by provisions of Articles in the constitution of the United Republic. The last section will project the conclusion and the recommendations. INTRODUCTION 2.1 Rule of law Means supremacy of law or predominance of law and essential, it consist values. The concept of the rule of law is of old origin. Edward coke is said to be the originator of the concept, when he said that the king must be under God and law and thus vindicated the supremacy of law over the professions of the executive 2.2 Separation of powers Refers to the division of governmental responsibilities into distinct branches to limit anyone branch from exercising the core functions of another. The intent is to prevent the concentration of power and provides checks and balances. The doctrine of separation of power is of ancient origin. But it was Montesquieu, French jurist, who for the first time gave it a systematic and scientific formulation in his book “Spirit de Lois” (the spirit of the laws) 2.3 MONTESQUIE’S WORK Montesquieu work on the rule of law is the best known in connection with his insistence on the separation of power, particularly the separation of power of judicial power from executive and legislative authority. In his book the spirit of the laws (1748), Montesquieu enunciated and explained his theory of separation of powers. He wrote; If the legislative and executive powers are combined in the same organ, the liberty of the people gets jeopardized because it leads to tyrannical of these powers. If the judicial and legislative powers are combined in the same organ, the interpretation of laws becomes meaningless because in this case the lawmaker also acts as the law interpreter and never accepts the errors of his laws. If the judicial power is combined with the executive power and is given to one person or one organ, the administration of justice becomes meaningless and faulty because than the police(executive) becomes the judge(judiciary) 2.4 Separation of power in the constitution of the United Republic of Tanzania In Tanzania, the principle of separation of power is indirectly recognized in Article 4 of the union constitution Article 4 (1) of the constitution states that, “All state authority in the United Republic shall exercise and controlled by two organs vested with executive power, two organs vested with judicial powers and two organs vested with legislative and supervisory powers over the conduct of Public Affairs.” Also Article 5A of the 1984 Zanzibar constitution amended in 2002 is more forthright in its formulation of this principle. This article clearly forbids interference of one branch by the other branch of the state. Other articles which are included in the constitution and shows separation of power includes Article 107 A (1) which gives defines judiciary as the only body that is responsible for solving cases and giving justice also Article 107 B prohibits the interference of other branches in judicial matters, defining judiciary as being independent. Another article is Article 62 (1), which defines the existence of parliament and what will the parts forming the parliament and its functions. Separation of power in practice in Tanzania In principle therefore, Article 4 of the constitution establishes three organs of the state i.e. executive, legislature and judiciary. In practice though, there is no strict separation of powers (but rather a mixed from government with checks and balances) in terms of functions of each organ and personnel conferred with state powers as exemplified. 3.1 it is the President(executive) who appoints judges and Justices of appeal(judiciary) under Article 109 and 118. Article 109(1) states, “there shall be a principal Judge of the High Court( who in the following provisions of this constitution shall be referred to as the “Principal Judge”) and other judges of the High Court who shall be not less than thirty who shall be appointed by the President after consultation with the Judicial Service Commission” also Article 118 (2) states, “The chief justice shall be appointed by the President from amongst persons who possess qualifications to be appointed as Justice of Appeal and shall be Head of the Court of Appeal and of the Judiciary as defined in Article 116 of this constitution and shall hold the office of a Chief Justice until he attains the retirement age of the Justice of Appeal”. 3.2 The president(executive) is also allowed to appoint a certain number of members of the National Assembly(legislature) under Article 66(1)(e), as it states as follows, “not more than ten members appointed by the President from amongst persons with qualifications specified under paragraphs (a) and (c) of sub article (1) of Article 67 and, at least five members amongst them shall be women” 3.3 The court can nullify acts of parliament under Article 64 (5), as it states, “without prejudice to the application of the constitution of Zanzibar in avoidance with this constitution shall have the force of law in the whole of the United Republic, and in the event any other law conflicts with the provisions contained in this constitution, the constitution shall prevail and that other law, to the extent of the inconsistency with the constitution, shall be void.” 3.4 Members of the executive such as President, minister’s directors and etc., are allowed to make subsidiary legislation as per article 97(5) “the provision of the article or article 64 of this constitution shall not prevent parliament from enacting laws making provisions conferring on any person or department of government the power to make regulations having the force of law or conferring the force of law on any regulations made by any person, or any department of Government.” 3.5 The president is part of the parliament (but not a member of the national assembly) as article 62(2) {I} states; “There shall be a Parliament of the United Republic which shall consist of two parts, that is to say, the President and the National assembly” 3.6 Ministers(executive) initiate bills (12) and the President assent to bills into law or may veto the same as per Article 97 (1)(2), “ Subject to the provision contained in this constitution the Parliament shall exercise its legislative power through the process of debating and passing Bills which eventually shall have to be assented by the President, and Bill shall not become law unless it is so passed by the National Assembly and assented to by the President in accordance with the provisions of this Article” 3.7 the Attorney General (part of the executive) is also a member of the National Assembly under Article 66(1)(d), “Subject to the other provisions of this Article, there shall be the following categories of Members of Parliament, that is to say; (d) The Attorney General.” 4.0 CONCLUSION The rule of law as advocated by Montesquieu in his work of separation of power is not relevant to our country Tanzania. This is because of the constitution structure of our country, the constitution of our country bestows much authority and power to the executive structure of the government. Therefore in order to achieve rule of law through separation of power we have to change the structure of our constitution. This will help to restore the normal authority and equality of power among the three pillars of the government. The proposed constitution of Judge Warioba tried to give way to this problem but it has not been reviewed till now making it difficult to achieve the political welfare of our country.