DIFFERENCES BETWEEN INSURANCE AND GAMBLING

Insurance and gambling defined

Insurance is a contract, where by one person called the insurer undertakes in return for the agreed consideration called the premium to pay to another person called the insured a sum of money or its equivalent on the happening of the specified event .

A propounding meaning of insurance was provided in the case of Scottish Amicable Heritage Securities Association Ltd v Northern Assurance Co , Where Lord Justice Clerk, defined insurance as a contract of insurance belonging to a very ordinary class by which the insurer undertakes in consideration,  may sustain by the occurrence of an uncertain contingency.

Gambling is generally defined as voluntary risking of sum of money called a stake, wager or bet in the outcome of a game or other event .

A classic definition is however available in the case of Carlill v Carbolic Smoke Ball Co , Where gambling was defined to mean “contract by which two persons, professing to hold opposite views touching the issue of a future uncertain event, mutually agree that, dependant on the determination of that event, one shall win from the other, and that other shall pay or hand over to him, a sum of money or other stake; neither of the parties having any other interest in that contract than the sum or stake he will so win or lose, there being no other consideration for making of such contract by either of the parties. If either of the parties may win but cannot lose, or may lose but cannot win, it is not ”

Insurance and gambling compared

Insurance and gambling seem to be same in some extent. As both, one party promises to pay a given sum to the other upon the occurrence of a given future event, the promise being condition upon the payment of, or agreement to pay, a stipulated amount by the other party to the contract. 

In either case, one party may receive more, much more, than he paid or agreed to pay . Besides, a contract of insurance may similar with gambling agreement whereby the insurer bets with the insured that his house will not be burnt and giving him the odds of its value, it is a legal and enforceable contract with important economic and social purposes. It’s for this reason have made some people think that both Insurance and gambling are non-profit institution.

While it is true that both Insurance and gambling involve money changing hands on the basis of chance events, it is important to understand the difference between the two as follows:-

Insurance and gambling distinguished

It is often claimed that insurance is a form of gambling. “You bet that you will die and the insurance company bets that you won’t” or “I bet the insurance company $300 against $100,000 that my house will burn.” The fallacy of these statements should be obvious. In the case of gambling, there is no chance of loss, hence no risk, before the wager. In the case of insurance, the chance of loss exists whether or not there is an insurance contract in effect. In other words, the basic distinction between insurance and gambling is that gambling creates a risk, while insurance provides for the transfer of an existing risk . The other differences between Insurance and gambling are:-

Interms of Insurable Interest

In Insurance, Insurable Interest is a pre-requisite whereas in gambling the interest is limited to the amount to be won or lost. In Lucena v. Craufurd , The court defined insurable interest to mean a right in Property, which in either case may be cost upon some contingency affecting the possession or enjoyment of the party.

Insurable interest distinguishes contracts of insurance from gambling in order to define the legitimate area of insurance business. Insurable interest is required for all types of insurance and its absence renders the contract void and hence unenforceable .

Interms of duty to disclose information

Full disclosure (Utmost Good Faith) is required from both parties to an assurance contract whereas this is not necessary in a gambling contract. In the event of non disclosure of the information The insurer may avoid the contract after discovering that there was non disclosure of the contract and the insured can not claim back his premium paid previously. In the case Kausar v. Eagle Star,  Staughton J. observed that, avoidance of or non disclosure is drastic remedy. It enables the insurer to disclaim liability. For example a contract of Marine Insurance is a contract based on utmost good faith as per Section 17 , and therefore section 18 of the same Act  impose a duty to insured to disclose every material circumstances known to assured failure to do the insurer may avoid the contract. 

Interms of their enforceability

Insurance contract is enforceable at law whereas there is no legal recourse for any of the two parties in a gambling contract. Section 90 of the Marine Insurance Act , provides that every contract of marine insurance by way of wager or gaming is void; and that a contract of marine insurance is deemed to be a wagering contract where the assured has not an insurable interest as per Section 90 (2) .

Interms of minimization of uncertainty and increasing uncertainty

Insurance helps to minimize the uncertainty and risks in the society, hence it promotes industrialization and economic development. In contrast, gambling increases uncertainty, risks and conflict in the society. It does not promote industrialization. Rather than it increases people’s will to earn money by speculation or luck, not by honest activities of labor. Hence gambling increases bad people and social crime.

Interms of restoration

Insurance contract restore the insured financially in completely of partially if a loss occurs. In contrast, consistent gambling transactions generally never restore the losers to their former financial position .

Instances where both gambling and insurance can be construed to be business making and profit maximization institutions

Professor Vaughan, E., In his book Fundamentals of Risk and Insurance, highlighted major circumstances where an insurance and gambling business maximize profit and hence refute the notion that they are just caring or non-profit institutions, and this includes the followings:-

In Insurance by not returning the  premiums where the insured is guilty of fraud in connection with the contract of insurance and if the policy contains a forfeiture clause when it is void. Also the insured can not indemnify the amount which is bigger than the current market value of the destroyed property. Through this incidences an insurance company may maximize profit, equally in gambling where a certain event doesn’t occur the wagered money cannot be returned and hence maximize the profit .

REFERENCE

BOOKS

Vaughan, E., (2014). Fundamentals of Risk and Insurance (11th Ed). Kendallville Publishers: Newyork.

Hardy Ivamy E.R, (1986), The General Principles Of  Insurance Law (5th Ed): London

Birds, J, (1993), The Modern Insurance Law (3rd Edn). Sweet & Maxwell: London

STATUTE

 Marine Insurance Act of 2002

RULES IN ASSESSMENT OF DAMAGES

Essentially it’s a well celebrated principle in law of contracts that when a contract is so breached the innocent party will be entitled with several remedies from the other party who breached the contract as per Section 73 (1) of the Law of Contract Act . In simple terms remedies refers to compassion be it monetary or otherwise paid to the innocent party for any loss accrued from the breach of contract. Such remedies may either be damages or the equitable remedies . 

This paper however is going to center its discussion on the damages and more important on the basic factors that courts normally consider when awarding them.

MEANING OF DAMAGES

Damages is a remedy for breach of a contractual promise, repayment of which may be specifically enforced in the court and are designed to compansate the plaintiff for the damage, loss or injury he has suffered from the breach of contract .

Lord Greene MR, in Hall Brothers SS Co. Ltd V. Young , defined the term damages thus: “the sums payable by way of damages are sums which fall to be paid by reason of some breach of duty or obligation, whether that duty or obligation is imposed by contract, by the general law, or legislation.”

PURPOSE OF AWARDING DAMAGES

The main purpose of awarding damages is to put the injured party as near as possible in the same position so far as money can do it, as if he had not been injured . This view is affirmed in the case of Addis v Gramophone Co. Ltd , where a court retaliated that “ I have always understood that damages for breach of contract were in the nature to compansate and not punishment”. Generally under this respect it can be construed that, the sole purpose of awarding damages is to restore the injured party to the position he would have been if the breached contract was so performed and not to punish the party so breached the contract.

TYPES OF DAMAGES

Damages for breach of contract may nominal or substantial. Nominal Damages, This is an amount awarded by the court to show that a party’s rights have been violated but no loss was occasioned or the party was unable to prove loss. Substantial Damages, This is an amount by the court as the actual loss suffered or as the amount the court is willing to recognize as direct consequences of the breach of the contract .

Parties to a contract may beforehand specify the amount payable to the innocent party in the event of breach. The sum specified may be Liquidated damages or a Penalty.

In Wallis v. Smith, it was held that liquidated damages are an amount which represents almost the actual loss occasioned and is awarded irrespective of the actual loss.  If the sum has no relation to the actual loss, but is intended to compel performance or it is a sum to be forfeited by the party in default it is regarded as a penalty. A penalty is generally extravagant it covers but does not access loss. Penalties cannot be awarded by the court, the court assess the amount payable by applying the rules of assessment of damages.

In Angela Mpanduji v. Ancilla Kilinda , it was stated that Exemplary or punitive or vindictive damages are damages given not merely as pecuniary compensation for the loss actually sustained by the plaintiff, but also as a kind of punishment of the defendant with the view of discouraging similar wrongs in future.

Other classes of damages includes, general  damages, that the law presumes  to  have resulted  from the defendant’s tort or breach of contract. They are normally damages at  large and can be nominal or substantial depending on the circumstances of each case. Special Damages are such a loss as  will not be presumed by law. They are special expenses incurred or monies actually lost .

MAINBODY

Essential Factors that courts put into consideration when awarding the damages

Remoteness of damages

In awarding the damages the court normally take into account the proximity between the injury or loss sustained and the breach and under this regard the court will more likely to award the damages when are not too remote from the breach and not otherwise .

The rule established under section 73 (2) of the Law of Contract Act , the innocent party’s loss or damage must not be too remote for a court to award the compensation. In Hadley v Baxendale , where the defendant agreed to transport the plaintiff’s broken crankshaft from the plaintiff’s mill in Gloucester to the manufacturer in Greenwich. It was a term of the contract that the crankshaft would be delivered by the following day. In breach, the defendant caused a delay in the delivery of the broken crankshaft. As a result, the plaintiff’s mill was idle for an extended period of time. In subsequent litigation, the plaintiff claimed damages for loss of profits for the period the mill was idle. The court held that the defendant was not liable for the loss of profits caused by the delay, as the damage did not directly flow from the breach of the contract. 

However the situation was different in the case of Victoria Laundry (Windsor) Ltd v Newman Industries Limited , the defendant agreed to sell the plaintiff a boiler for use in its laundry business. It was a term of the contract that the boiler be promptly delivered, as it was intended to ‘put it into use in the shortest possible space of time’. The boiler was damaged during dismantling, resulting in delivery being delayed for nearly six months. The court held that the plaintiff was entitled to recover the profits that it could have expected from increased capacity, had the boiler been operable. These damages were recoverable because the defendant knew that the plaintiff wanted the boiler for immediate use. Therefore the loss was not too remote from the breach.

From the above cases presented it can be established that, where there is no stipulation in the contract as to the payment of damages, the court will normally resort by looking whether or not the loss suffered by the plaintiff was proximate to the defendant breach.

Mitigation of Loss

The innocent party who suffers from a breach of contract must take reasonable steps to mitigate (that is, to lessen) the loss suffered. The underlying principle is that the law will  not allow recovery of losses that the innocent party could have avoided by prompt and reasonable action. However, any moneys spent in mitigating or attempting to mitigate losses are recoverable as damages .

If the party fails to mitigate its loss the amount by which loss ought to have been reduced is irrecoverable. In Harris v. Edmonds , it was held that where the charterer of a ship failed to provide cargo in breach of contract, the ship captain was bound to accept cargo from other person’s at competitive rates. Whether or not the innocent party has acted reasonably in mitigating its loss is a question of fact.  

In Musa Hassan v. Hunt and Another , the appellant had contracted to buy all the milk produced by the respondent for one year. On one occasion, the appellate refused to take delivery of the milk on the ground that it was unfit for human consumption; the respondent proved that it was fit for human consumption. After the refusal the respondent converted the milk to ghee and casein which fetched a lower price than milk. The appellant argued that the respondent had not acted reasonably in mitigating the loss. It was held that the respondent had reasonably.

Therefore in this respect the court in awarding the damages will take into consideration on whether the plaintiff has acted reasonably in mitigating the loss and the damages payable will reflect the extent to which the plaintiff has taken reasonable steps to mitigate the loss suffered.

Non-economic damages 

This can also be taken into consideration as a prominent factor that the court will take into consideration in awarding the damages especially where there is no provision in the contract. Generally, damages are not awarded to compensate for non-economic matters, such as embarrassment or distress. In Addis v Gramophone Co Ltd , the defendant (Gramophone) wrongfully dismissed the plaintiff (Addis) from his employment. The plaintiff subsequently sued for damages for wrongful dismissal. At first instance, the plaintiff received damages that included an amount for the embarrassment, humiliation and general distress suffered by the plaintiff and caused by the way in which he was dismissed. On appeal, the House of Lords set this award aside as not being the proper subject for damages.

Therefore in the above presented case the court take into consideration of economic factors in determining the payment of damages and from this case it can be construed that, the court will generally refuse to pay the damages for loss which is non-economic.

Causation 

This also constitute to another significant factor that the court will consider in awarding damages in the event where there is no provision in the contract to that effect. In  March v. MH Stamare Pty Ltd , the court stated that, ‘as a matter of ordinary common sense’, the other party’s breach must be regarded as a cause of the innocent party’s loss. If there are concurrent causes for the loss or damage, it is sufficient if the other party’s breach is a cause. However, if the loss or damage is caused by factors for which the other party is not responsible, the causation connection will not be established.  

In  Alexander v Cambridge Credit Corporation , the defendants (Alexander and others), who were the plaintiff’s (Cambridge’s) auditors, allegedly breached their service contract by performing their services negligently. Despite their alleged breach, the defendants were held not responsible for the subsequent financial losses suffered by the plaintiff. The court was satisfied that the losses were  caused by a substantial downturn in the property market, and the decision of the plaintiff to expand its operations during unfavorable economic conditions. 

From the above facts it can therefore be construed that, in awarding the damages the court will take into consideration on whether or not the plaintiff loss was actually caused by defendant and  causation is a question of fact, not law and is normally determined by but for’ test. In other words, would the plaintiff’s loss have occurred but for the defendant’s breach of the contract?.

CONCLUSION

Generally, the court do take into consideration a number of intricate factors when awarding damages and these factors largely determining on whether the injured patty will be awarded the damages or the court will generally refuse to award the damages. 

VOID, ILLEGAL AND UNENFORCEABLE CONTRACTS

The spirit of law especially in contracts is to protect the disadvantageous who have been induced to enter into unfair contracts by the advantageous one who seek to benefit from such kinds of contract, and this may largely explain as to why whether be it illegal or void contract will not be enforced before the court of law. This work therefore seek to highlight the main principles regarding the illegal, void and unenforceable contract while confining the discussion to the spirit of the Law in protecting the innocent party to contracts.

Principles relating to Void, Illegal and unenforceable agreements

All agreements may  not  be enforceable at law. Only  those agreements which fulfill the essentials  laid  down in Section 10 of Law of Contract Act , can be enforced.

Void Agreemen

t

The Contract Act specifically declares certain agreements to be void. According to  section 2 (1) (g) , an agreement not enforceable by  law is void. Such an agreement does not  give rise  to any  legal consequences and thus void ab initio.

Contract Expressly declared void under the law of Contract Act

The law of Contract Act, declare certain transaction to be void and therefore such agreement cannot be enforced with the intention to protect the innocent party and not benefiting the advantageous ones and this includes the followings:-

Agreement by a minor or a person of unsound mind interms of Section 11, agreement of which  the consideration  or  object is  unlawful interms of Section 23,  Agreement  made  under  a  bilateral  mistake of fact material to the agreement interms of section 20, Agreement of which the  consideration  or  object is  unlawful  in  part and the  illegal  part  can  not be  separated  from  the  legal  part as per Section 24,  Agreement  made without consideration as per Section 25 of the Law of Contract Act .

Also it includes, Agreement in  restraint of  marriage as per Section 26, Agreement in restrain  of  trade as per Section 27, Agreement in  restrain  of  legal  proceedings as per Section 28, Agreements  the  meaning  of  which  is uncertain as per Section 29, Agreements  by way of wager interms of section 30, Agreements contingent on impossible events as per Section 36 and Agreements to do  impossible acts as per Section 56 of the Law of Contract Act .

Some discussion on void agreement and its relating principles

Agreement by a Minor

A person who  has  not the age of majority signifies  as minor. Law acts as  the guardian of  minors  and protects their  rights, because their mental facilities are not mature and thus they do not posses the capacity of  judge what is good and what is bad for them. Accordingly, where is a minor charged with obligations and the  other contracting party seeks to enforce those  obligations  against  the minor, the agreement is deemed  as void .  

In the case of Nash v. Inman , the defendant was an infant college student. Before proceeding to college, his father bought him all the necessary clothing material. However, while in college, he bought additional clothing material from the plaintiff but did not pay for them and was sued. His father gave evidence that he had bought him all the necessary clothing material. The court held that, though the clothes were suitable to the minor’s condition in life, these goods were not necessaries because the minor was well provided with clothes by his rich father.

Agreement by a person of unsound mind

A person who  does not  possess a sound mind or whose mental  powers are  not arranged or  whose mental condition is not  under his  or  her own control. Any agreement by person of  unsound mind is absolutely void because he has  no capacity to  judge, what is good  and  what  is  bad  for  him .

In Imperial Loan Co. Ltd v Stone , the defendant was sued on a promissory note he had signed. He argued that at the time, he was insane and therefore incapable of comprehending the nature or effects of his acts and that he was not liable on the promissory note as the contract was void by reason of insanity. In the words of Lopes L.J. “In order to avoid a fair contract on the ground of insanity, the mental capacity of the one contracting must be known to the other contracting party.

Agreement Made Without Consideration

Within the meaning of Section 25 of the Law of Contract Act , An  agreement  made  without consideration  is  void,  It  is  expressed  in  writing  and  registered  under  the  law  for  the  time  being enforce  for  the  registration  of  (documents),  and  is  made  on  account  of natural  love  and  affection  between  parties  standing  in  a  near  relation  to each  other. This is reflected in the case of Alfi East African v Themi Industries and Distributors Agency Ltd , where the sale of machinery was not supported by a consideration that in price in contracts of sales, therefore the contract was held to be void as an essential element of a contract of sale that is price which is the consideration for a contract was not stated.

Generally, the underlying principle as far as void contract are concerned is that, such contracts will not be enforced as the law acts as  the guardian of those who are disadvantageous and thus protects their rights against those with dirty minds who seek benefit under void contract.

Illegal Agreements

A contract is illegal when it contains unlawful object and consideration and therefore such contract is unenforceable as it is a contrary to the law or public policy. The provision of section 23 of Law of contact Act , declare an agreement with unlawful object and consideration null and void and hence from its very beginning or from its inception was not a contract.

Some discussion on illegal contract and its relating principles

An illegal contract is un-enforceable. This is because for an agreement to be enforceable, it must have been entered into for a lawful purpose. A contract may be declared, illegal by statutes or a court of law . 

Contracts declared illegal by Statutes

Under the employment Act, wages or salaries are payable in money or money’s worth. A contact to pay wages or salary in kind is illegal and void. Such a contract is said to be illegal as formed and is unenforceable. Land laws of particular countries restrict on sale or lease of land to a foreigner, Restriction put by trade laws, no license no trade.  

Contracts declared illegal by courts of law 

A contract to commit a crime, tort or fraud. 

Such a contract is illegal and unenforceable as it is a contrary to public policy to commit crimes, torts or fraud in Bigos v. Boustead , where the object of the contract was to violate the English Exchange control regulations; it was held that the contract was illegal and unenforceable.

Contracts liable to promote corruption in public. 

Such a contract is unenforceable as corruption is contrary to public policy. In Parkinson v. College of Ambulance and Another , the secretary of a charitable organization informed that plaintiff that it was on to it. The plaintiff gave ₤3,000 but was not knighted as only the King could bestow the title. In an action to recover the sum, it was held that it was irrecoverable as the contract was illegal.

Contracts liable to promote sexual immorality. 

These are contracts contra bonos mores (contrary to good morals). Such a contract is unenforceable on account of illegality. The contract may be illegal as performed. In Pearce v. Brooks , the plaintiff owned a beautiful horse drawn carriage which he tent to the defendant for 12 months at stated charges. The plaintiff knew that the defendant was a prostitute and intended to use the carriage to solicit influential customers. In an action to enforce payment of the hiring charges, it was held that that contract was unenforceable as it was illegal as performed as its purpose was to promote sexual immorality.

Generally in this aspect also the court will not enforce the illegal contract with the view of protecting the innocent party and that’s why an illegal contract is said to be beyond the pale of the law and thus such a contract is unenforceable as  it creates no rights and imposes no obligations on the parties. Neither party is bound to perform. Money or assets changing hands under an illegal contract is irrecoverable as gains and losses remain where they have fallen .

Unenforceable agreements

This includes all agreements that basically has not fulfilled some legal obligations or formalities that is the suffer some technical defects like insufficient stamp, lack of signature just to mention a few .

Section 64 of the Land Act , requires the disposition of a right of occupancy be in writing and being signed short of that the agreement becomes unenforceable. The section reads “ A contract for the disposition of a  right of occupancy or any derivative right in it or a mortgage is enforceable in a  proceeding  only if– (a) the contract  is in writing (b) or there is a  written memorandum of its terms; the contract  or the written memorandum is signed by the party against whom the contract  is sought to  be enforced”.

CONCLUSION

Generally, a contract lacking some of legal formalities like a signature will not be enforced and the same extends to both void and illegal contract, and this reflect the intention of the Law to protect the disadvantageous one as the contract might be induced by either fraud or misrepresentation and hence enforcing it will generally be a detriment to the innocent party and a blessing to the advantageous one.

 Constitutional law (1yr)

Introduction 

LAW: these are rules and principals that administers justice in the state 

But laws are also used to direct people, allowing or permitting people and also prohibit people to do something which is actually illegal.

• Law consists of rules that are recognize and acted on by court of justice 

• There is a philosopher called John Austin who says that law is as a set of command by a superior being to an inferior being and enforced by sanctions. Like imprisonment, fines and damages.

• Law is a system of rules of social behavior, the rules are in form of generalization or general statements on human behavior in a given situation, they are general because they do not deal expressly with a single person but with a group of human beings. Rules are also general because they describe a possible human behavior in a general abstract way. The motives behind these rules is to allow or prohibit a certain action.

-general statement behavior means its states a law clearly in general ways showing social behavior unless u commit the offense, meaning at that point it gets specific due to the kind of offense that you have committed.

                       NATURE OR CHARACTER OF LAW 

• One of the distinguished character of law is its normativity. 

Normativity means that members of a society are bound to behavior in accordance with the law in other words you can say law is binding not merely advisory. law has a bounding nature meaning we are bound by the law whether you know them or not or you agree with them or not.

• Law also permits some acts and also law prohibits some actions 

                                     FUNCTIONS OF LAW 

• Structuring of public power

Public power means the government meaning the three organs of state these organs are established structured and controlled by law.

• Facilitating and regulating private relations

We have many laws that regulates private relations, due to the division of law, public law and private law for example contracts meaning the law of contract will provide directions. There is also family law such as marriages, meaning family law will give directions on how to deal with your family.

• To solve conflicts which arise among people. As we know that conflicts are always there at individual level, national level and also international levels, now the law deals with all of that meaning it gives directions on how to solve conflicts that is why we have different courts . conflicts regarding TRA there is a system that deals with tax cases.

                                               CONCEPT OF A STATE 

COUNTRY: large group of people that share a geographical territory that  are bounded by internationally recognized boundaries.

In law we have our own definitions in the field of law that law is called Montevideo convection on the rights and duties of the state   on 1933. Article 1 has defined what 

The state as a person of international law should possess the following qualifications 

-permanent population 

-a defined territory 

-the government 

-the capacity to enter into relations with other states 

for any country to qualify to be a state it must contain the four qualifications 

-PERMANENT POPULATION:

A state should have subjects who should consists of natural persons identifying themselves as 1 political community and such community must be permanent, stable, and loyal to the state , however we should not necessarily made up of people of 1 ethnic group.

-DIFINED TERRITORY

this means that a state must have a defined piece of land that shows the territory 

-THE GOVERNMENT 

you must have unchallenged political sovereign or authority 

 and that sovereign must enjoy unchallenged obedience from it’s people. People must obey the government because it is there legally since the people are the one that choose the leaders.

-THE CAPACITY TO ENTER INTO RELATIONS WITH OTHER STATES 

the first aspect to have relations with other country you must be independent meaning free.

NATION; refers to a community of people that are constituted historically and who share territory, culture, language, economy ,as well as identify themselves subjectively as part of a nation . you may be a state but not a nation. People should have a common cry. We Tanzania are not a nation for now 

                                                       THEORIES OF STATE AND LAW

• MARXIST THEORY/MATERIALISM 

• BOURGEOIS THEORY/IDEALIST

• BOURGEOIS THEORY/IDEALIST Advocates of this theory argues that all material beings originated from a transcendental or superior being who is God. They believe that all these material beings originated from beyond normal human understanding and experience, they contended that God is the creator of all materials and he is soul determinant of all phenomenal including law and state. They believe that state and law are `god given and for that matter law and state are eternal categories which are over and above man and society, they say that the only responsibility of man and society is to obey the law which is administered by the state. They must be obeyed. Example of theories are religious dogma, schools of natural law and evolutionary theories. Example of scholars are Thomas Hobbes and John Locke.

• MARXIST THEORY/MATERIALISM

The scholars of this school argue that in order to understand anything it is necessary to go through its historical reality or background, they believe that state and law are social institutions.to understand the origin and nature of state and law it is prude that you consider the mode of production at each particular state of human development. to understand this you should go back to history starting form primitive communalism. The Tanzanian constitution says that we are a socialist country though in reality we are in neo-colonialism . materialists are still saying that state and law emerged when there was tremendous improvement in the productive forces, production relations and social relations due to this is guaranteed the division of labor, production of surplus and class formation in the society. Once we make surplus we automatically form classes. 

                                           LEGAL SYSTEM OF EAST AFRICA 

• Legal system: this is the application of laws and how laws are enforced in the society. Or an existing system of law in a certain country.

• Or are set of laws of a particular country and the way they are used or applied, in every country have their own set of law and their own procedures meaning that we don’t have the same legal system.

• Or refers to a procedure or a process for interpreting and enforcing the law, it also elaborates the rights and responsibilities in a variety of ways.

• Or is the laws, the people and institutions that make them work in a particular country, therefore legal systems always explain the basics on 

-how laws are made 

-how courts and tribunals operate 

-how laws are enforced

TYPES OF LEGAL SYSTEM

There are several types of legal system around the world

• CIVIL LEGAL SYSTEM;

• COMMON LAW 

• RELIGIOUS 

• HINDU

• SOCIALIST

The major civil systems are:

• CIVIL LEGAL SYSTEM 

• COMMON LAW LEGAL SYSTEM 

• RELIGIOUS LAW LEGAL SYSTEM 

• CUSTOMARY LAW LEGAL SYSTEM 

This system of combination of legal system we call it mixed legal system or in other words its hybrid legal system.

• COMMON LAW LEGAL SYSTEM:

Common we call them  judge declared laws  or is a body of English law which originated with an oral tradition of tribal justice in Britain, hundreds of years ago and which developed into unique organized national body of laws, these laws were eventually imported as the law of British colonies through out the world so 

-common law is the body of previous decisions by courts which became binding precedents.it means that all courts are supposed to follow the decision made by the court of appeal. The rational for having common law is to standardize interpretation of statutes and prevent courts having to deal with a essentially the same facts over and over again.  In the case of Mason v. state, the court provides the definition of common law and says the common law is judiciary created law that is developed on a case by case basis. Countries following a common law system are typically those that were former British colonies or protectorate. We can summarize the meaning of common law in the following words, that common law are the bodies of passed decisions which binds judges deciding later cases with the aim of insuring consistent treatment.

WHY IS COMMON LAW NECESSARY it is necessary to avoid ambiguities when interpreting a statute and also to avoid conflicts between multiple statutes. If you have a common law and  a statute always the statutes is above the common law

            FEATURESS OF COMMON LAW

-In common law country case laws co-exist with statutes laws

 and that is why in Tanzania we always have statues as well as case laws, meaning that when you argue a case your suppose to refer to a relevant statutes and common law.

               -Judicial decisions are binding;

-in common law countries we use Adversarial system in our courts, it comes from the word adverse meaning opponent. Adversarial system meaning parties or adversaries are mainly involved to establish their case while the judge remains umpire.

-under common law system everything is permitted if is not expressly prohibited, if you commit that act you may not be convicted because there is no law. 

APPLICABILITY OF COMMON LAW OF ENGLAND IN TANZANIA 

In section 2(3) of JALA (Judicature And Application Of Laws Act) cap.358 

It provides on how common law of England can be applied in Tanzania 

-common law of England can only apply in Tanzania if that common law is still valid 

(1)in England and that

 (2)principal is not covered by any statutes in Tanzania. 

(3)if that common law fits the circumstances of Tanzania 

• CIVIL LEGAL SYSTEM LAW/ CONTINENTAL LAW 

Countries following civil law system are typically those countries that were former French, Dutch, German, Spanish and Portuguese colonies.

-Civil law system is a codified system of law and it takes its origin from Roman Law 

                   FEATURES OF CIVIL LAW

-There is generally written laws based on specific courts, it means that everything must be covered by law

-only legislative enactment are considered binding for all, meaning that in civil law there is a legal scope for judge made law, which is quite different from common law.

-in some civil law countries writings of legal scholars have significant influence on courts.

-under civil law countries there is a clear distinction between substantive and procedural laws 

-civil law system use inquisitorial system, meaning during the case in civil law countries the judge or magistrate has much more central role in the process of not only judging but inquiring too, meaning the judges assume a dominant role in questioning the parties and the production of evidence is the duty of the court.

• MIXED LEGAL SYSTEM: this is where in a certain country  two or more systems are applied interactively some of the countries are South Africa and Botswana, some countries use civil laws and costmary law example Burundi, Chad, Bukinafaso, there are some countries they have Muslim law and civil law example Libya, Iran, Iraq and also Morocco, and Egypt. There is a mixed system of common law and customary law example Tanzania, Ghana, Zambia and Uganda. Also mixed system of common law and Muslim law ex. Bangladesh, Sudan and Pakistan. Some have even more then two like Muslim law, customary law and Civil law example Indonesia and Jordan. Some have mixed system of civil law, common law, Jewish law and Muslim law example Israel (Jews). In Burundi they base on `German and French civil courts and customary laws 

MEANING OF CONSTITUTION: we could say that a constitution is a body of rules and principals of which a country is governed 

• Now we have codified constitution because most people are not faithful.

• Any organization needs to have rules as to how it is to be ran, what are those rules, who draws them up, how they can be changed and what form they take are amongst other matters that need to be determined at the outset. It is no different when that organization is a state, a state whether large or small needs to have some fundamental organizing principals in order that it might run effectively.

• Constitution is the basic structure and element of a body, an institution, an entity or a thing. Constitution means organizing fundamental principals of a state or an organization etc and those principals must reflect the nature of the body, entity or a state and all fundamental values  as identity of that organization or state.

• Constitution is the fundamental and fixed rules governing the conduct of an organization or a state and establishing its concept, character and structure. It is usually a short document general in nature and embodying the aspirations and values of its writers and subjects.

• A constitution is fundamental law written or unwritten that establishes the character of a government by defining the basic principals to which a society must confirm by describing the organization of the government and regulations, distribution and limitations on the functions of different government departments and by prescribing the extent and manner of the exercise of its sovereign power.

BROADER MEANING OF CONSTITUTION 

• A constitution is a supreme normative expressions of the will of people on how they want to live

-the constitution that we had was made on 1977, the people want the constitution to change because it was made by the parliament meaning it lacked the will of the people. The bill of rights limits the power of the government towards the people. Therefore constitution is described as rules of governance in the sense that constitution articulate the fundamental rules of governance and expresses the will of the people on how they want to live, secondly  constitution is expression of the sovereignty of the people to know that in a state the supreme authority lies on the people and in Tanzania the same as being provided under article 8.(1),(a), there is one author called Tom Pine provides “a constitution is not the act of the government but the people constitute a government” and “government without a constitution is power without a right”.

                                           

                                      SOURCES OF CONSTITUTION

   

(1) THE PEOPLE: this is a primary source of constitution because it involves the will of people on how they want to live, and the source of public power is also the people. 

(2) STATUTORY INSTRUMENTS: these are written laws made by the parliament. It is a source because the parliament is a legislative body in the country, and the parliament enact laws within the constitutional character example the treat that established the union between Tanganyika and Zanzibar it was made by the parliament but the effect of that treat had constitutional character, go and read the acts of Union.

(3) JUDICIAL PRECEDENT: In article 107 of the constitution which says that the Judicial shall be the authority with final decision. Judiciary interpret laws including the constitution, it may end up forming a new constitutional norm, if that norm has a constitutional character then we will have a constitutional norm made by the Judiciary example the case of Christopher Ntikila , from the High court, Court of Appeal and the third case decided by the African court also read the case of JULIUS NDYANABO VS ATTORNEY GENERAL , in this case we see how the constitution has been interpreted and showing the principals. 

(4) CONVENTIONS AND CUSTOMS: These are normally made up of unwritten practices of the parliament, the judiciary and the executive with constitutional nature, meaning that habitual respect and observance of customs and conventions may elevate to mandatory rules of constitutional norm. something that is convention it is respected or a custom but it is not provided by any law. For Example tan of President of Tanzania mainland and Zanzibar.

(5) WRITERS OR WORDS OF EMINENT CONSTITUTIONAL LAWYERS AND EXPERTS:

In common law institutions words of eminent lawyers are not binding character they just have a persuasive character but always we are using writings of these people when interpreting the constitution.  these sources help in solving cases so as to have enough persuasive materials so as to persuade the court to follow your argument so as to decide on your favor.

(6) INTERNATIONAL LAW: there are some international laws that have contributed a lot in the sources of our own constitution example the Universal declaration of Human rights of 1948. 

(7) PRACTICES FROM THE CONSTITUTIONS OF OTHER COUNTRIES: we actually borrow practices from other countries example the Running mate which we borrowed it from the U.S.A . 

                                           CLASSIFICATION OF CONSTITUTION 

(1) WRITTEN AND UNWRITTEN CONSTITUTION:  a written constitution is the one which is set out in a document or series of documents, it is not mandatory that you have a single document sometimes you may have more then one document but all of them have a constitutional character and in practice almost every country has a written constitution, there are countries with unwritten constitutions. – Unwritten constitution is the type of constitution which is not expressed in a document or set of documents. Why do you think it is important to have a written constitution?

(2) RIGID AND FLEXIBLE CONSTITUTION: in this form our attention lies on how the constitution may be changed or amended, a rigid constitution is the one which can not be easily changed or amended, the process of amending or changing is subject to some special procedures or we say that the process is very restrictive, example France they have to call an referendum so as to change something in the principal. A flexible constitution is the one where by the process of changing is simple and flexible there are no special procedures. 

          HOW CAN WE AMEND OR CHANGE OUR CONSTITUTION? 

• In article 98.(1). of the constitution read it and comment if we have a rigid or flexible constitution 

(3) FEDERAL CONSTITUTION AND UNITARY OR UNION COSTITUTION:  under this class the attention is on how power is divided within a state, in federal constitution there is a distribution of powers between the federal government and the government of state forming the federation. In federal states both the central government and the state governments have primary powers. It is usual for certain powers relating to what are essentially nation interest t o be reserved for the central government while the regional government will have exclusive jurisdiction over matters that reflect regional differences example USA it has 52 states. The central government is run by the President himself while the other government are run by governors. An example of federal government is the constitution of USA. In a Union constitution only the central government has primary powers and usually union constitution are found in simple states, in this constitution there is administrative division of power and territories for purposes of simplifying administration but not a reflection of need for autonomy of any part of the country. In Tanzania we have the Central government and the local government but the local government does not have autonomy meaning they are subjected to Central government. WHAT KIND OF CONSTITUTION DO TANZANIA HAVE?  Confederation government the two countries decide that some things they will share and some will not share.

(4) PRESIDENTIAL AND PARLIAMENTARY CONSTITUTION: in here we look at the nature of the head of state. In countries where the head of state is also the head of government the constitution is said to be presidential. according to Doctor Garner “presidential government is that system in which the executive is constitutionally independent of the legislature in respect to their duration and tenure and irresponsible to it for their political policies”. Actually it does it provide how the person become the head of the state it only tells what functions that person performs.

FEATURES OF PRESIDENTIAL CONSTITUTION 

(1) There is separation power between the executive and legislature, they are separate and have equal status.

(2) The president is the head of the state as well as the head of government. The president enjoys real powers of administration which are given to him under the constitution and other laws

(3) The president is elected for a fixed tenure and he can not be removed from his office before the expiry of his term unless there is an impeachment by the parliament.

(4) The president is not a member of parliament. in article 33 of the constitution shows the existence of the President. Article 34(3) and in article 36 also in article 62 

PARLIAMENTARY CONSTITUTION:

 in parliamentary constitution the head of state is normally a different person from the head of the government. In this system the executive branch derives its legitimates from the legislature and is also accountable to legislature. Countries with parliamentary systems maybe constitutional monarchies where a monarch is the head of state while the head of government is a member from a legislature example UNITED KINGDOM, DENMARK, SWEDEN AND JAPAN. Most times the head of state is ceremonial. 

(5) REPUBLICAN AND MONARCH CONSTITUTION: the attention here is on the nature of evolution of power. In republican constitution revolution of power of the head of state is to another citizen who can be elected, nominated or appointed on a non consanguine basis. In monarchial as long as the King still lives he still will be in power until he or she dies then the son or brother will take the crown.  4

                                  FUNCTIONS OF A CONSTITUTION 

                                    CONSTITUTIONAL HISTORY AND DEVELOPMENT 

Constitution existed since the beginning of state because it was among of one of the law. 

(1) GENTILE CONSTITUTION OR TRIBE CONSTITUTION 

• This is a form of constitutional organization of human society which existed in early stages of human development, it is the earliest and most basic form of human society, the development of tribe societies passed into 3 stages 

-Savagile stage in  this stage the people were hunters and gatherers, they also developed speech and languages. Means of production were extremely low so everything they did was just for consumption. 

-barbarism: man learned to breed domestic animals and to practice agriculture and they acquired methods of increasing the supply of natural products, in this stage was marked by the introduction of pottery, agriculture, iron smelting us for bricks and stones for building.

-civilization : in this stage man learned amore advanced application of work to the products of nature, this was the period of development of Industry and it was characterized by inventions of alphabets and use of written records, it is believed that gentile constitution arose during primitive communalism.

                                 Characteristics of communalism 

• The family was the basic social unit around which labor was organized 

• The social economic life of the society was still at primitive rudimentary level, they lived in communal societies, and there was communal owner ship of the means of production. 

ORGANS DURING GENTILE CONSTITUTION 

It had three organs 

• The clan assembly at the bottom 

• The phratry at the middle 

• The tribal assembly at the top 

• (1) The clan assembly: was the basic organizational structure of the gentile constitution clan was a cluster of families tied together by blood relationship, the clan was organized by the clan assembly composed of all adult members of the clan and it was led by a clan chief or a clan head, this chief was not an elected leader but a person who found the clan or inherited that position of leadership by death right and seniority of age, inheritance of clan leadership was by a female or male lineage. The conduct of clan assembly was participatory meaning that every adult member of the clan had equal opportunity to participate except for those with mental incapacity. 

CONSTITUTIONAL FEATURES OF CLAN ASSEMBLY 

• Direct participation of all adult members, 

• Decisions were made by consensus 

• Everyone was equal irrespective of gender although seniority in age and added weight and influenced in deciding issues. 

• (2) The phratry ; this was an intermediate organ composed of leaders of various clans related by geographical or blood tie, the phratry leader was the most senior individually able, economically and militarily powerful among the clan leaders. He or she was a vassal chief to the king or chief. The role of the phratry was to secure and maintain law order and defense of the clans under the phratry. It was also an appellate organ in the settlement of disputes arising from the clan, it was also an organ with original jurisdiction in inter clan matters and disputes. The phratry paid habitual obedience to the tribal chief or king and it also supplied him or her with soldiers during military missions. The phratry assembly could annul rules made by the clans.  it also had the power to overturn the decision made by the clans. 

• (3) Tribal assembly: this was the highest organ of power in the tribal constitution system it consisted of the king or chief as the head and a council of phrat leaders, it was assisted by the elders who always  sat to the king in his courts. The king inherited the throne by descent or blood lineage but in other cases he was a normal member of the society who turned out to have special talents or powers and he had powers over war and peace. The tribe assembly was the highest legislative executive and adjudicative body it had power to hear any matter  and any appeals  it could make and unmake customary laws to be applied by the tribe, during wars tribe assembly received both men and logistical support from the phratries, the basic law of the tribe were customary norms passed from one generation to another through oral traditions and practice. New practices created precedents that led to new customary norms.

               CHALLENGES OF GENTILE CONSTITUTION 

CONSTITUTIONAL PRINCIPALSD AND 

SEPARATION OF POWERS: 

-Any constitution has rules and principals. 

The doctrine or principal of separation of power is said to be a bourgeoisie political legal theory which claims that state power is not a single entity but rather a composite of different governmental functions.  

WAYS OF CREATING A STATE: 

• State can be formed out of wars , wars always create new state. 

• Voluntary or willingness of the people themselves. Most of the old state were formed from people themselves. 

• Through UN Resolution ex. Israel and Albania. 

• Diplomatic conferences example Berlin conference of 1884. 

• Decolonization struggles. 

• ORGANS OF A STATE 

The concept was that they needed to have separation of state power so that a state can be run smoothly. The organs of the state originated after a very serious and a long class struggle between the ruled and rulers, at the end of their struggle it was agreed that there must be devolution or transfer of power to a lower level of state from animate or influential technocratic class of political rulers to a civilian based grass root power, in those days’ people wanted to rule themselves instead of being ruled by animate sovereign exercising power on their behalf. -The social contract theory addresses the question of origin of society and the legitimacy of the authority of the state over the individual and they concluded that in order for any authority to stand individuals must have consented to give the authority and while consenting individuals surrender some of their freedom and submit to the authority of the ruler in exchange for protection their remaining rights. The doctrine was originated by Aristotle, cicero and John Locke, they believed that any single form of government was unstable leading to a permanent cycle of disasters, they preferred powers to be rested in the people and authority in the state. For instance John Locke stressed that the executive and legislative powers should be separate for the sake of liberty, he believed that liberty is likely to suffer when the same human being make law and execute them. The doctrine of separation of power war reformulated by French philosopher in the mid of 18 century by  the French philosopher called Baron DE Montesquieu this was between 16-18 centuries between these days the doctrine of separation of power occupied an upper hand in the struggle of the bourgeoisies against absolutism and the arbitrary rule of the king. It was also used in a countries to justify a compromised between the bourgeoisie which had won control over the legislature and the judiciary while the feudal monarchies retained executive power. According to Montesquieu state powers can be defined depending on their function, he identifies 3 types of powers namely Executive, Legislative and adjudicative. He called the power to rule or administer acts of of public governance as Executive power. The power to make laws as legislative power and he called the power to interpret laws and decide disputes between the state and its subjects or between the subjects themselves as adjudicative power. Montesquieu believed that abuse of power or power tyranny was the result of concentration of the three state powers in the hands of one person or a group of persons.

What does the doctrine of separation of power implies? It provides that state powers must be separated and must be rested in three organs of state and the reason behind separation power between different organs of state is to deter abuse of power in the beginning Montesquieu provide a strict interpretation of the doctrine of separation of power and he said the doctrine of separation of power implies 3 things. This is shown in the constitution in article 4 

-state power is rested and exercised by three separate institutions or organs.

- the personnel in these three organs must be different.

- the functions of the 3 organs must be different.

According to Montesquieu the doctrine provides that specific functions are allocated to distinctive institutions with a defined means of competence and jurisdiction exercised by different persons. In the case of R V. Home secretary expactee fine brigade union lord Mustill defind the doctrine in the following words “ it is the feature of the peculiarly British conception of the separation of powers that parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country with the powers complied on it by law. The courts interpret the laws and see that they are obeying it.”

THE MODERN APPROACH OF THE DOCTRINE OF SEPARATION OF POWER: this tries to dilute the Montesquieu strict interpretation doctrine of separation of power and the aim is to point out practical difficulties’ in the application of Montesquieu strict doctrine and thus they advocate for a mixed government for weak separation of power. We must have weak separation of power with check and balances to prevent abuse of power. According to them they argue that separation of power does not mean disunity of power, though the powers are separate but they are integral and unified.

APPLICABILITY OF THE DOCTRINE OF SEPARATION OF POWER

In Tanzania we have adopted the approach and essentially in Tanzania there is no strict separation of power in principals and practice and the doctrine is defined under article 4 of the constitution.  It can also be found in the article 33 of the constitution and article 34 talks about the government and all other matter concerning mainland Tanzania, in article 35 it talks about discharge of the business of the government and article 36. 

                 WHAT ARE QUALIFICATION OF THE PRESIDENT?

                                                                  ORGANS OF GOVERNMENT

(1) EXECUTIVE: 

this is the government itself.  The government of the united republic of Tanzania is vested with the authorities over all union matters and over all matters concerning mainland Tanzania as it is provided in the constitution in article 34. This government is divided into to 2 

• TANZANIAN GOVERNEMT IS DIVIDED INTO 2

• Central government: this is composed of the following the President and vice president , the prime minister and the cabinet, the Attorney General and Deputy, Director of Public Prosecution  DPP, secretary to the cabinet and regional commission

• Local government: local government and regional administration is under the office of Prime minister called PMO-RALG, local government appointees are governed by the law and there are two laws which governs the local government.

LAWS THAT GOVERN THE LOCAL GOVERNMENT

(1) local government district authorities Act cap287.

(2) local government urban authorities Act cap 288.

the local government district establishes districts, councils, village councils, and township authorities while the urban authorities consists of cities, municipals and town councils and mitas (street).

• THE PRESIDENT: the presence of the president is mentioned in article 33-46. In article 39 it provides the qualification of a President. Article 44 states that he has authorities to declare war. Its possible to institute a civil proceedings to the president but you must follow the procedures to do so. Shown in the government proceedings Act. In article 46(3)………… In Zanzibar the President has no authority over the Military because it is a union matter. 

• In article 33(1) it provides that there shall be a president of the united republic. Sub article 2 provides that he shall be the head of the state, head of government and commander-in-chief of the armed forces.

• Article 34(1) provides the existence of the government it shall have authority over all union matters of the united republic and over all other matters concerning mainland Tz. 

• Article 36 (1) the president has authority to constitute and to abolish any office in the service of the government of the united republic.  In sub 2 it provides that the president has authority to appoint persons to hold a position of leadership in the government. Sub 3 provides that he can appoint other people who are not leaders to hold a position in the government and also to promote them, remove them from the office and terminate their employment and discipline them. 

• Article 37 provides that the president is not bound by advice of the citizens meaning he is not obliged to take them unless if the constitution requires him to accept such advice.  Sub 3 when the president is absent from the `united Republic or is unable to discharge his functions then the Vice president will be taking control of the office. (a) incase the vice president is ill or absence 

(b) then the prime minister will be taking power. Sub 4(a) when the prime minister is in power he shall cease his control when (a) the president returns to the United Republic of Tanzania or his condition improves or (b) when the vice president returns to the office. sub 5 incase the president dies then the Vice President will be sworn then will be the next President. Sub 9(b) it provides that the president is not regarded absent if he is traveling within the country.

• Article 38(1) provides that the President shall be elected by the citizen according to what the constitution says and wants. 

• Article 39(1) provides us with the qualification for a person to be come president. Sub 1 (a)supposed to be a citizen of the united republic by birth. (b) the age must be 40 years. (c) he has to be a member who has been nominated by a political party (d) he is qualified to be a member of parliament or a member of house representatives. (e) 

• Article 40(1) provides that any person holding office shall be eligible for re-election of that office. Sub 2 no person shall be elected more than twice. Sub 3 a person who has been a President of Zanzibar can also be qualified to be elected as a President in Tanzania. Sub 4 where a vice-president holds the presidents office for 3 years he shall be able to contest for president for 2 more years. 

•

• VICE PRESIDENT:  he is the principal assistance to the president of all the union matters, he performs all duties of the office of the president when he is out of the office or of the country, performs all duties given by the government. The vice president becomes voce president automatically when the running mate becomes president and the vice president must be from Zanzibar and vice versa. In article 47 tells about the vice president. 

In article 47(4) shows the qualification of the vice president. The vice president van be removed from office in article 50-51 it provides us how he or she can be removed. 

• PRIME MINISTER: is appointed by the president and must be a constituent member of Parliament shown in article 51(2).  Prime minister is the leader of the government. 

• MEMBERS OF CABINET:(baraza la mawazili) in article 54 it is composed of the vice president, prime minister, the president of Zanzibar and all the minsters but the Attorney general attends the meetings while the President is not a member. Cabinet Is the principal organ that advise the President. 

• MINISTERS AND DEPUTY: must be appointed by the President.

• ATORNEY GENERAL: Article 59 

               -     SECRETARY TO THE CABINET: in article 60 

-     DPP 

- REGIONAL COMMISSIONER : article 61, the regional commissioner is appointed by the President, powers of the commissioners are set in the Regional administration Act. 

(2) LEGISLATURE OF THE UNITED REPUBLIC: 

the existence is shown in the constitution in article 62, the composition is provided under sub article 2 which refer you to article 66.  The main roll is to over see and advice the government shown in sub article 3. They enact laws. they also stay for 5 years, in article 66 comprises the members of National Assembly. You must be able to read and write in Swahili or English.  

ELECTORAL COMMISSION: in article 75 

Read article 77 

Procedures for relation of Women members 78 how they are eleceted.

Read article 78. 

Speakers article 84

Duputy speaker 85 

Procedures for electing speakers and deputy article 86 

Meetings of National assembly article 92 

Standing committee read standing orders of the parliament. 

Article 98 how the parliament can alter the constitution 

Parliament and members of parliament have privilege of speech speaking anything, he or she can not be taken to court. in article 100

(3) JUDICIARY: this is not a union matter meaning that Zanzibar has its on judicial system but only when there is a case that should be solved in the court of appeal because in Zanzibar the highest court is the High court.  found in article 107 (a) it has power and authority, 

• THE HIGH COURT OF THE UNITED REPUBLIC 

The existence of The High court of the united Republic is provided in article 108(1) of the constitution. Sub article 2 it says that the high court has unlimited jurisdiction.

-article 109(7) provides special qualification in being a judge.

Article 110(a) show how a judge can be removed from the office

JUDICIAL SERVICE COMMISSION: it is an appointment advisory commission for judges and magistrate shown in article 112(1) 

Read article 113, 

COURT OF APPEAL: this was not in the constitution in 1977 and the head of the court of appeal is the Chief Justice he has no power in Zanzibar provided in article 116, read article 117, 118, 120,122,

SPECIAL COSTITUTIONAL COURT: never been in practice ever since but it is provided under article 125which has jurisdiction where there is a dispute btn Mainland and Zanzibar regarding the constitution that case is solved in this court. 128, 

JUDICIAL INTERPRETATION OF THE DOCTRINE OF SEPARATION OF POWER 

In the case of DPP V DAUDI  PETE 1993 TRL 22, in this case there was an argument made by judge Nyalali and he said that “ in our view the doctrine of separation of powers can be said to be infridgd when wither the executive or the legislature takes over the functions of judiciary involving the interpretation of laws and the adjudication of rights and duties in disputes either between individual persons or between the state and individual persons”. Another case is Atonerney General V Lohay Akonay and Joseph Lohay where by the same jusge said “ it is the basic structure of a democratic constitution that state power is divided and distributed between 3 state pillars, these are executive vested in executive power, legislature vested in legislative power , and judicial which vested in judicial power,  this is clearly so stated under article 4 of the constitution this basic structure is essential to any democratic constitution and can not be changed while retaining the democratic nature of the constitution. It follows therefore that when ever the constitution establishes or permits the establishment of any institution or body with executive or legislative or judicial power such institution or body is meant to function not in lieu or in the location of these 3 central pillars of the state but only in aid of a subordinate to those pillars it follows therefore that since our constitution is democratic any parotid ouster of jurisdiction of the ordinary court to deal with any justiciable dispute is unconstitutional”. Case of Mwl Paul John Mhozya V attorney general 1996 TLR 130 the issue in this case was whether the president may be remved or suspended from office by the court. “ the principal that the functions of one branch of government should not IL crouch on the function of another branch is a very important principal one of the principals which insures that the task of governing state is executed smoothly and peacefully. It seems to me to be an un incontraverticle proposition of law having regard to the use of the words in accordance with provision of the constitution in article 42(3)d that removal or suspension from office of the president of the united republic is the legislature’s exclusive prerogative and since article 46(a) of the constitution lays down the procedures to be used in removing or suspending the president the attempt to remove or suspend him by a procedure other then that would be not legal”. Reda the case of AG VS Christopher Mtikila, Ramadhan CJ “ the issue of independent candidate has to be settled by parliament which has the jurisdiction to amend the constitution and not the courts which as we have found do not have that jurisdiction.

PARLIAMENTARY SOVERIGNITY AND PARLIAMENTARY SUPREMACY 

In terms of a nation sovereignty means its free, but it means supreme or unlimited power or has final say or last authority according this context. 

PARLIAMENTARY SOVERIGNITY: this is a British concept where by the principals says that there is no any other organ with the right to make or unmake any law what so ever and that no person or body which is recognized by law of England as having a right to set aside the legislation of the parliament. The concept originated in England during the feudal Era where the only threat was monarchial power. It was the result of the gradual revolution from absolute to constitutional monarchy. When they succeeded in their struggle the house of commons came to impose people’s sovereignty. DICEY One of the most influenced   lawyer said that the Parliament of England can do anything, make or unmake any law except bind itself. He said that the legislative power was omnipotent and Omni sum meaning that it is not bound by anything.  

                     DOCTRINE OF PARLIAMENTARY SOVEREIGNITY IN TZ

In 1961 we got our independence British people have no written constitution but all the colonies of England were given Britain constitution called “ORDER IN COUNCIL”  among the principal was the principal of parliamentary sovereignty because the head of the government was the prime minister and head of the country is the Queen, in 1962 we stopped the so called Parliamentary system of government we started the presidential system of government where by Nyerere was the 1st president after he changed the constitution.  In 1977 we got the union constitution and there was no doctrine of parliamentary sovereignty because we had a written constitution. Under this constitution there is no way we have parliamentary sovereignty because it involves people’s will. after 1977 it was governed by 2 principals the the principal of constitutional supremacy and people’s sovereignty provided under article 8 . with written constitution we have the constitutional supremacy under article 8, 64(5). VN SHUKRAH this is an Indian author who wrote something in the book tittle the Constitution of Indian he said “ all government organs and institutions owe their origin to the constitution and it derives their powers from it’s provisions these organs and institutions enjoy such powers as a conferred them and function within limits demarcated by the constitution. Parliament is no exception and unlikely British parliament can not claim unlimited powers it must function within. Limits and it’s actions are subjected to judicial scrutiny…sovereignty can not therefore be located in parliament “. 

PARLIAMENTARY SUPREMACY: refers to the legislative authority.  The parliament is vested with over the other 2 organs in law making functions. It can be seen under article 64. In law making the parliament is the supreme organ meaning that the executive or judiciary can not make law without concerning the parliament. Delegated legislation are laws made out of the parliament or subsidiary meaning its not a principal legislation. The parliament of TZ is not sovereign because it has limitations as provided under article 64 

LEGISLATIVE LIMITS OF THE PARLIAMENT OF TZ

(1) Article 64 which is the 1st limitation 

(2) Article 64(5) 

(3) \

                                   MINISTERIAL RESPONSIBILTY: 

Is a responsibility based on what we call a “ responsibe governemt” , which is always accountable to the people. Whereby in representative democracy the parliament acts on behalf of the people. 

           This is explained in article 63(2) of the constitution , the government has to be accountable to the people because they are the ones who put it into to power. 

TYPES OR CATEGORIES OF MINISTRIAL RESPONSIBILITY:

(A) COLLECTIVE RESPONSIBILTY: 

(B) INDIVIDUAL RESPONSIBILITY:

(A) COLLECTIVE RESPONSIBILITY:

Ministers are always collectively responsible to defend government policies in cabinet meetings. While there are other minister that may differ with others in certain stances or issues but when the decision is made as a final resolution he is obliged to defend that decision by any means. 

REASONS WHY A MINISTER IS OBLIGED TO DEFEND A CABINET DECISION 

• Decisions of the cabinet are collective 

• Discussion in the cabinet meetings is confidential 

If a minister differs or is against the decision, then the only remedy is resignation- if he chooses to leak the information 

            REASONS FOR COLLECTIVE RESPONSIBILITY: 

• All minsters are coming from the ruling party. 

• So as to have a strong government.

                 GROUNDS FOR HELDING A CABINET TO BE COLLECTIVE  RESPONSIBLE :

If there is any of this occurring, then the cabinet will be held responsible.

• When there is a leakage of confidential cabinet documents or information. 

• When the cabinet misleads the parliament. 

• When there is premature disclosure of the government budget. 

(B) INDIVIDUAL: this is a responsibility of an individual minister over the porr performance of his/her ministry. It is a liability of a single minister to the parliament. Under this responsibility of a minister must account for for or explain to the parliament of his own actions or the actions of any civil servant falling within his/her ministry. Here the minister is held liable by the parliament for poor performance or cross misconduct by the minister himself or his subordinate. 

• All officials and subordinates of the ministry are under the command of the minister in charge. 

• Where the subordinate misbehaves then the minister is required to resign because he had the duty to make sure that the duties and responsibilities of his subordinates are correctly done. 

• When the performance of a ministry is questionable then the minister is responsible to be blamed and vice versa. 

• Ministers work through the alter ego theory in which the minister’s official’s work on his behalf “extended arms od the minister”. 

1943 AELR 560 

           in this case Lord Green said the following 

“Government could not be carried on unless civil servants could take decisions on behalf of the ministers. Constitutionally the decision of such an official is of course the decisions of the Minister. The Minister is responsible and it is he who must answer before the parliament to anything that his officials have done under his authority. 

   GROUNDS FOR HOLDING A MINISTER RESPONSIBLE: 

(1) Maladministration of the Minister. 

-If there is a cross misconduct in the ministry.

-if there is an issue of corruption. 

• In 19.7 Ali Hassan Mwinyi resigned the  (Home Affairs Minister) due to torture and killings that were done by police in Mwanza. 

• In 1997 Prof. Mbiinyi (Minister of Finance) resigned because of the issue of tax exemption to fish fillet importers 

QUESTIONS TO LOOK FOR: 

: What are the limitations or exceptions to the doctrine of Ministerial responsibility. 

: Discuss the mechanism of enforcement of ministerial responsibility 

                               BASIC HUMAN RIGHTS: 

Human rights are the basic rights that a human being has by virtue of being a human or human rights are inherit to all human beings regardless  of their social, economic or cultural differences. 

CASE: CHRISTOPHER MTIKILA VS REPUBLIC LTR 21 

     The Judge provided for the definition for human rights as “fundamental rights are not given by the state and they are inherited by a person by reason of his birth, and therefore human rights are prior to the state and law. Human rights do not depend on being provided for in any legal document. 

REASONS WHY HUMAN RIGHTS ARE IN THE CONSTITUTION: 

(i) SO AS TO BE RECOGNIZED 

(ii) SO AS TO BE ENFORCED 

                                      GROUPS OR GENERATION OF HUMAN RIGHTS: 

(i) CIVIL AND POLITICAL RIGHTS :

• Right to life 

• Equality before the law

• Freedom of expression 

(ii) EQUALITY: 

• Governs liberal issues with disregarded to social and economic status. 

(iii) COLLECTIVE/GROUP RIGHTS: 

• Right to development 

• Right to peace 

• Right to a clean environment 

                                

               CHARACTERISTICS OF HUMAN RIGHTS

• Human rights are universal 

• Human rights are inalienable 

• Human rights should not be taken away except on specific situation and according to the process of law.

• Human rights are interdependent, invisible and interrelated 

• Human rights are equal and non-discriminatory ( this is provided under chap 1 part 3 of the constitution (12-24), (25-28) (duties) 

            Basic rights and Duties (Enforcement Act Cap3 ) 

                            PRINCIPAL OF RULE OF LAW:

As the name suggest it is according to law as proposed to rule of an individual.

 RULE OF LAW: it has been given by lots of authors. To understand the meaning, the issue here is law meaning that you have to know the purpose of law.

            

 MEANING OF RULE OF LAW:

• This is a principal of good governance in which all persons, institutions and (entities public and private) including the state itself are accountable to laws that are publicly announced equally enforced and independently adjudicated and which are consistent with international human rights principals. These laws must be just meaning they adhere to human rights and not unjust. 

• It also requires measures to ensure adherence to the principals of supremacy of law.

       MEASURES TO ENSURE ADHERENCE TO THE PRINCIPALS OF SUPREMACY OF LAW:

- equality before the law, 

-accountability to the law,

- fairness in the application of the law, 

-separation of powers,

- participation in decision making, 

-legal certainty,

- avoidance of arbitrariness and procedural and legal transparency. 

The purpose of rule of law is to provide a government of security, predictability and reasons.  

                 PURPOSE OF LAW IS SET BY 5 ELEMENTS OF RULE OF LAW:

(1) Is that capacity of legal rules, standards or principals to guide people in the conduct of their affairs. Meaning people must be able to understand the laws and comply with them. 

(2) For efficacy or efficient government. Meaning the government becomes efficient. 

(3) Stability, It is there to make sure that the country or the government is stable.

(4) It requires independent judiciary. 

: Dicey who is an author said that rule of law is simply supremacy of law. But the doctrine of rule of law is dynamic.

 There is an effort which was made by the International Commission of Jurist (ICJ) they provided the rules of rule of law and they did this is 1959 in it’s conference which was help in New Delhi and they came up with rules of rule of law and said that the rule of law has become a dynamic doctrine of law which includes the following rules:

               

         RULES OF RULE OF LAW:

(1) All exercise of state power must be based on law and must confirm to procedures and limitations set by law. Law binds everything and everyone. 

(2) All subjects of law are equal before the law and must have access to the ordinary courts of the land.  They are talking about equality and free to access the court for any action that you think was unjust. 

(3) No one should be punished for acts which when done were legal and un punishable under the law. It calls Nullam crimen sine  lege ( no crime and no punishment without  (pre-existing ) law. 

(4) In rule of law no subject if law should be apprehended  (detained or imprisoned)  without law ( Nulla poena sine lege).

(5) In rule of law all laws which impose punishment and liability of subjects must be positive and must not have expost factal operation  (retrospective in nature) 

(6) In rule of law there must be established and guaranteed ordinary courts which are independent from executive and have jurisdiction to enforce individual rights. The only court with jurisdiction to hear human right case is only THE HIGH COURT. 

• Using relevant provisions and vivid examples identify and discuss indicators of rule of law in Tanzania?  

(7) In rule of law punishment Imposed by law should always correspond to the civility of the law breached meaning that the offence must be accordingly with the punishment.

(8) In rule of law the state must protect basic human rights and fundamental freedoms. That is why the bill of rights is provided in the constitution meaning in any country there is a bill of rights. 

PURPOSE OF LAWS:

• To protect the society against disorders. 

• To allow people to plan their affairs with reasonable confidence that they can know in advance the legal consequences of various actions. Example entering an agreement with another person the process of buying things are governed by laws meaning there are some procedures to be followed. 

• It guarantees against arbitrarily actions (meaning discretionary power) these are powers which are not given by law meaning that your life is within someone’s hand. 

                              INDEPENDENCE OF THE JUDICIARY: it deals with rights of people because it adjudicate case of individuals. It is important for this organ to be independent. When we talk about judiciary we talk about the system of courts and the personnel’s and functions of judiciary is provided in article 107 of the constitution 

             MEANING OF INDEPENDENCE OF THE JUDICIARY: 

means every judge or magistrate at the case may be is free to decide matters brought before him or her in accordance with his assessment of the facts and his understanding of the law without any improper influence, inducement or pressure, direct or indirect, from any person or for any reason, this means that the judge or magistrate must confirm with the oath of office which they take to do justice without fear, favor affection or IL power. Here the judges are bound to the laws as well 

A JUDGE SHOULD:

• shouldn’t decide any case with influence 

• Or pressure 

• He must be impartial 

• Solve without fear 

• No favors affection 

• Should not judge according to status 

WHAT ARE THE PRE REQUISITES OF INDEPENDENCE OF A JUDICARY: ( what are are the requirements of independence of judiciary: 

(1) The state must guarantee it by entrenching closes in the constitution on the independent of judiciary, security of tenure and their emoluments or remuneration.  In Tanzania the independence of Tanzania was not guaranteed by the constitution until the year 2000. 

(2) The state should surrender through constitutional provision, the function of administering justice to the judiciary was also guaranteed in the year 2000.

(3) The fundamental rights and freedoms of individual must be provided for in the constitution. 

(4) Members of judiciary must be non partisan meaning not having or not a member of any political party. 

NB: However, it should be noted that independence of judiciary does not mean a license to discharge the judicial function in whatever manner one pleases. Always there are accepted legal values, substantive and procedural rules of law, implicitly and explicitly that should guide judges and magistrate. But it also calls for innovations on the part of judges’ and magistrates, sometimes they are supposed to be innovative because there are some circumstance where reasoning is required instead of law example if something is not provided in our law or is not satisfactory. CNP most laws in Tz have been copied and pasted without considering the circumstances of the country.  

                  INTERNATIONAL COMMUNITY AND INDEPENCE OF JUDICIARY

                               GUIDING PRINCIPALS OR STANDARD NORMS: 

THESE ARE INTERNATIONAL PRINCIPALS FROM INTERNATIONAL LAW:

• Independence of judiciary shall be guaranteed by the state and enshrined in the constitution

• The judiciary shall decide matters before them impartiality on the bases of the facts and in accordance of the law and the adduced evidence without any restrictions, improper influence, inducement, 

• pressure, threats or interference, direct or indirect from any person or for any reason. 

• The judiciary shall have jurisdiction over all issues of judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law  

• There shall not be any inappropriate or unwarranted interference with the judicial process. 

• Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. 

• The principal of independence of judiciary requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. 

• It is the duty of each member state to provide adequate resources to enable the judiciary to properly perform its functions.

• What are factors that can undermine independence of the judiciary?  Check the constitution and see how the constitution of the united republic of tz guarantees independence. The public service retirement benefit Act) 

Judges have: 

- One motor vehicle ]

- Diplomatic passport 

- A driver and paid by the government (50 liters of fuel a week ) 

- Total sum of money as allowance of motor vehicle 

- Uses VIP lounge 

    Chief justice have:  

-On there retirement; allowance 50 % of total sum of salaries he received. 

- a gratuity sum of 50% of salaries he received while being CJ

- health insurance policy that covers medical treatment

- 70 liters of fuel per a week. 

-  a driver 

CONSTITUTIONALISM: is a process by which state power is exercised in accordance with the provisions of the constitution and the laws derived from it. 

- Or constitutionalism provides 

DEMOCRACY: is the government of all the people by all the people for all the people.  all the people involves that the people make the government, by all the people means the government should be there fore the people.

FUNCTIONS OR ROLE ELECTORAL COMMISSION (article 75) 

Article 74 removal of member of parliament.  

FREE AND FAIR ELECTION: 

-the process of electing leaders must be conducted by unbiased or non partisan body, in a transparent manner that allows the contestants to compete on level political field enjoying equal rights and facilities. But in this case it is not possible. An election can not be free and fair if the electoral body or commission is partisan or appointed by one of the contestant.

-But if the rules themselves allow one party and fair share or use resources while denying other similar resources. 

-There must be intervals which in this case in Tz its 5 years. 

PRINCIPAL OF EXECUTIVE CONTROL OR ACCOUNTABLITY OR AN ACCOUNTABLE EXECUTIVE: 

How do we hold the Executive accountable? 

-Vote of n confidence 

-Through periodic elections: all ministers are members of parliament 

check this 

                               GOOD GOVERNANCE AND ELEMENTS OF GOOD GOVERNMENT: