Many
critical legal scholars have tried to construe the rationality behind enacting
the new constitution. One of them is Prof. Issa Shivji, a law professor at the
University of Dar es Salaam. He pointed out a deferent reason and a rational
one as to why Tanzanians need to enact a new constitution. His answer has roots
in the traditional approach as whom the constitution governs? And it’s simple,
since we all know that the constitution governs all people in a given territory
and all states apparatus and organs as it is the supreme law of the land.
From
this foundation it should be known that if the constitution is the supreme Law
of the Land and everything else is subject to it as Cap 1 s(2) of the Kenyan Constitution 2010, empowers the
constitution of the Kenya being the supreme law of the land by speaking on its
self like in possession of own soul. Nailing down the fact there was a case of Samatta CJ v. Attorney General, 2001 EA 485
in which Honorable Justice said that the constitution is a living
instrument having its own soul and consciousness. The root of this philosophy
is traced as far as Montesqueiu
period in 1740’s before the publishing of ‘The
Spirit of Law’ in 1748, from this
base the Constitution then is to be enacted by the people as the Law made will
be above all and that makes it not right for only a few group of people to
enact the whole body of law which is the key in all governing process.
Leaving
some minor reason as the constitution being old or as many would have say that,
it has been amended a lot which I think is also very common in all the earthly
constitutions, even the said best constitution of the United States of America
has got some in it. But the real reason
for the enactment of this new constitution is that the current constitution was
enacted by a group of few Individuals of the ruling party of that time and it
was not the views expressed by the Tanzanians as whole but by few individuals
who were not even blessed with permission from the people and that’s what is
claimed to be the reason for the enacting of a new constitution.
By Oscar O. Mutaitina,
LL.B Student at The Catholic University of Eastern Africa.
