Section 25 (1) and (2) states inter alia as follows;25.-(1) The Constituent Assembly shall have and exercise powers to make provisions for the New Constitution of the United Republic of Tanzania and to make consequential and transitional provisions to the enactment of such Constitution and to make such other provisions as the Constituent Assembly may find necessary.(2) The powers of the Constituent Assembly to make provisions for the proposed Constitution shall be exercised by a Draft Constitution tabled by the Chairman of the Commission and passed by the Constituent Assembly.[footnoteRef:1] [1: The Constitutional Review Act, 2011.]

There is no any provision of law either be it constitutional or statutory or precedential provision (case law/precedent) which limits power of the Constituent Assembly in the whole process of enacting provision of New Constitution, however, constitution making practice shows that where the Draft Constitution is prepared by a constitutional commission or other institution of similar nature, in practice the power of the Constituent Assembly to enact New Constitution is limited as it were the cases in Uganda, Ghana, Kenya and Ethiopia. The difference then comes where the constituent assembly is involved in all the process of constitutional making process i.e. collecting of the citizens views, writing of the report with regards to the citizens views, compilation of the draft constitution etc.Professor Yash Ghai in his work entitled The Role of Constituent Assemblies in Constitution Making at page 23 and 24 wrote as quoted hereunder;

The functions of constituent assemblies have also varied. Some start with a blank slate and are free to make any decisions, others may be bound to incorporate certain fundamental principles (South Africa, Namibia, Cambodia).The constituent assemblys role in determining goals is limited in those cases where the draft is prepared by a constitutional commission or some similar body. The assembly may be free to modify the draft or even to reject it but in practice its choices are limited.

In the light of Professor Yash Ghai words even where the power of the Constituent Assembly to enact New Constitution is limited on ground of presence of Constitutional Commission or body of similar nature or for any other grounds, the practices shows that such limitations on the power of the Constituent Assembly to enact New Constitution are imposed by law either the constitution or statute which may either be an Act of Parliament or an Act of Constituent Assembly. After looking at the above now we divert the attention to other jurisdictions in relation to the way in which they conducted their affairs when making a new constitution or amending the constitution and the laws they applied. for example:1. REPUBLIC OF KENYA

In Kenya Draft Constitution was prepared by the Committee of Experts established under Section 8 of The Constitution of Kenya Review Act[footnoteRef:2] which is equivalent to the constitutional commission, however, limitations to the Parliament of Kenya which was equivalent to Constituent Assembly were expressly imposed by law in particular Section 33 (4) (a) and (b) of The Constitution of Kenya Review Act[footnoteRef:3] which is reproduced verbatim hereunder; [2: [CAP. 3A R.E 2009]] [3: Ibid ]

33 (4) The National Assembly shall, within thirty days of the tabling of the draft Constitution under subsection (3), debate it and

(a) approve the draft Constitution without amendment and submit it to the Attorney-General for publication; or(b) propose amendments to the draft Constitution and submit the draft constitution and proposed amendments to the Attorney-General, who shall, within seven days, submit them to the Committee of Experts for consultation and redrafting.

THE POWER OF THECONSTITUENT ASSEMBLY AS PER LAWS OF THE LAND

Section 25 of The Constitution Review Act, 2011 is reproduced hereunder;

Powers of Constituent Assembly (Marginal Notes)

25.-(1) The Constituent Assembly shall have and exercise powers to make provisions for the New Constitution of the United Republic of Tanzania and to make consequential and transitional provisions to the enactment of such Constitution and to make such other provisions as the Constituent Assembly may find necessary.

(2) The powers of the Constituent Assembly to make provisions for the proposed Constitution shall be exercised by a Draft Constitution tabled by the Chairman of the Commission and passed by the Constituent Assembly.

After due consideration of the above provisions of Section 25 of The Constitution Review Act, 2011, we are vehemently of the view that the legal power or mandate of the Constituent Assembly to enact the Constitution of United Republic of Tanzania is unlimited indispensably, though the positions may be accurate or correct in politics or in logic or in Constitution Making Practice but is wrong in law.

It is a trite rule of law established in the common law jurisdictions that the State shall do nothing except what has been permitted by law and citizens shall do everything except what have been prohibited by law as per Lord Camden in John Entick Vs Nathan Carrington and 3 Others[footnoteRef:4] [4: [1765] EWHC KB J98]

The principle enunciated in the case of John Entick Vs Nathan Carrington has force of law in Tanzania by virtue of Kiriri Cotton Vs Dewani[footnoteRef:5] (as per OConnor, P) because the decision was delivered before reception date. Now, the Constituent Assembly being a state institution it has to do nothing except what it has been permitted by law, to the best of our knowledge there is neither any provision of law in The Constitution Review Act, 2011 nor in other statutes nor in the constitution nor there is any judicial decision (case law) nor any other law which mandatorily limits the power of the Constituent Assembly to minor modification or improvement or amendment or variation of the Draft Constitution only and prohibit it not substantially amends or completely change the Draft Constitution or otherwise prohibit it to deal with what is called Misingi Mikuuya Rasimuya Katiba or what is called the National Values and Ethos. In the light of case of John Entick Vs Nathan Carrington, the Constituent Assembly is enjoined to do only what has been permitted by law only not more not less. The law in particular Section 25 of The Constitution Review Act, 2011 permits the Constituent Assembly to make provisions for the New Constitution of the United Republic of Tanzania and the law has not imposed any limitation as to the subject matters or contents of the New Constitution (Substantive Limitations). [5: [1958] E.A]

As per Section 26 (2) of The Constitution Review Act, 2011and that the Draft Constitution submitted by the Chairperson of Constitution Review Commission must be the instrument which will form the basis of debate of the Constituent Assembly as per Section 25 (2) of The Constitution Review Act, 2011,among other procedural limitations and including procedural limitations to be imposed by The Standing Order made by the Constituent Assembly as per Section 26 (1) of The Constitution Review Act, 2011. There are no Substantive Limitations imposed on the Constituent Assembly in the process of enacting New Constitution, therefore, the Constituent Assembly has power not only to improve, modify or amend the Draft Constitution but also it can substantially amend the Draft Constitution or the Constituent Assembly can completely change the Draft Constitution consequently it can come out with its own Proposed Constitution which is substantially or radically or completely different from Draft Constitution submitted by the Chairperson of Constitution Review Commission to it .Lord Camden in the case of John Entick Vs Nathan Carrington & 3 Others[footnoteRef:6] was of the view that any rule of law must be found in law books or statutory books [including constitution] or must be found in common law (decided cases) and that any rule which fall short of this, id est, is not found in Law books or Case Law is not rule of law. [6: [1765] EWHC KB J98]

Article 107 A of The Constitution of United Republic of Tanzania, 1977 as reproduced hereunder;

107A.-(1) The Judiciary shall be the authority with final decision in dispensation of justice in the United Republic of Tanzania.

Therefore, we are of the view that in the circumstance, the judiciary should be invited to interpret the provisions of Section 25 of The Constitution Review Act, 2011 so that judiciary can determine the power of the Constituent Assembly once and for all, the approach which will completely bring this dispute to finality.

Sir Rupert Cross et al, in their work titled Statutory Interpretation defines Statutory Interpretation as follows:

I t would be better to say that interpretation is a process by which the courts determine the meaning of a statutory provisions for the purpose of applying it to the situation before them.[footnoteRef:7] [7: Sir Rupert Cross et al, Statutory Interpretation 2nd Edition at pg. 30]

For purpose of accurate or correct determination of the legal power of the Constituent Assembly in respect of enactment of New Constitution of United Republic of Tanzania, the prevailing circumstances requires the invitation of the Statutory Interpretation Approach as judiciary applies it to interpretation of statutes and other instruments.

Now the issue is, which approach, rule, guide or directive of statutory interpretation should be applied to interpret the true legal meaning of Section 25 of The Constitution Review Act, 2011.

In the case of Duport Steels Ltd v SIRS[footnoteRef:8], Lord Diplock had this to say; [8: (1980) HL]

"Parliament makes the laws, the judiciary interpret them. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral..Under our Constitution it is Parliaments opinion on these matters that is paramountIf this be the case it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Act."

It is now clear that the general rule is that the court in the process of interpretation of statute must apply Literal Rule unless there is ambiguity or absurdity. The words used in Section 25 (1) of The Constitution Review Act, 2011 are in themselves precise, clear and unambiguous, then no more can be necessary than to interpret those words in their natural and ordinary sense. Now applying Literal Interpretation to provisions of Section 25 of The Constitution Review Act, 2011, the meaning which is clear is that the Constituent Assembly has the following powers;

a) Power to make or enact provisions for the New Constitution of the United Republic of Tanzaniab) Power to make consequential and transitional provisions to the enactment of such Constitutionc) Power to make such other provisions as the Constituent Assembly may find necessary.

The clause other provisions as the Constituent Assembly may find necessary simply means other provisions of the New Constitution or other consequential and transitional provisions to the enactment of New Constitution. Since the words used in Section 25 (1) of The Constitution Review Act, 2011are precise, clear and unambiguous and are not tainted with absurdity we are legally obliged to interpret them literally by assign those words their ordinary or literal meaning. Golden Rule, Mischief Rule and Purposive Approach cannot apply to the words used in provisions of Section 25 (1) of the Act because there is no absurdity or ambiguity or any other problem of interpretation which justify their application.

The Constitutional Review Act, 2011 as harmonious as whole come with only one conclusion that the Constituent Assembly was conferred power to enact the New Constitution and not power to approval the New Constitution in which case the Constituent Assembly would not have power to change any provision of Draft Constitution as it was the case of Kenya where the Parliament of Republic of Kenya acting as the Constituent Assembly was conferred power to approval or disapprove the Draft Constitution only and it was not permitted to change even a punctuation mark in Draft Constitution as per Section 33 (4) (a) of The Constitution of Kenya Review Act[footnoteRef:9] [9: [CAP. 3A R.E 2009]

and whenever there was a need to amend Draft Constitution whereby the Parliament was require to propose amendments and submit such proposed amendments to the Committee of Experts as required by Section 33 (4) (b) of The Constitution of Kenya Review Act[footnoteRef:10] (already quoted hereinabove). [10: Ibid]

Now should the parliament intended to prohibit the Constituent Assembly from changing the Draft Constitution the Parliament would have used the word APPROVE or other words of similar nature as it was in Kenya and would the parliament intended to limit power of the Constituent Assembly to amendments or improvements of the Draft Constitution only the Parliament would have used the word amend , improve or other words of similar nature and it would have entrenched the Provision of Law or the Schedule into law prescribing matters which the Constituent Assembly is prohibited to change, amend or vary in, or remove from, the Draft Constitution as it was the case of Republic of South African whereby Fourth Schedule and Chapter Five and of more importance Section 71 of The Constitution of the Republic of South Africa Act200 of 1993[footnoteRef:11] prescribe The 34 Constitutional Principles which the Constitutional Assembly of Republic of South Africa were prohibited to change, amend or modify. [11: 200 of 1993expressly]

Instead the Parliament in Section 25 (1) of the Act used the words The Constituent Assembly shall have and exercise powers to make provisions for the New Constitution of the United Republic of Tanzania The word MAKE in Section 25 (1) of the Act in relation to the context of New Constitution when is linked with other provisions of the same statute such as Section 3 of the Act which defines the phrase Proposed Constitution, Commission fora and referendum, Section 4 of the Act which set out objectives of the legislation, Section 9 of the Act which provides functions of the Commission, Section 18 of the Act which established and prescribe the function of Fora for Constitutional Review, Section 28 of the Act which deals abatement of power of Constituent Assembly.

The legislation creates five stages of in the Constitution Making Process (Constitutional Review Process) and five Key Players or institutions for every stage each with key function as provided hereunder;

1. The Constitutional Review Commissionfor purposes of co-ordination and collection of public opinions on the Constitution.2. The Fora For Constitutional Review to give opinion on the Draft Constitution for purpose of review of the Draft Constitution by the Commission 3. The Constituent Assembly for purpose of making provisions for the New Constitution of the United Republic of Tanzania4. National Electorate (All Voters at National Level) for purpose of approval of the Proposed Constitution enacted by Constituent Assembly.5. The Presidency (President) to promulgate the New Constitution.

any argument that the Constituency Assembly has no power to change the Draft Constitution in whole or in part or that the Constituency Assembly cannot change some provisions of the Draft Constitution is contrary to the purpose of the law because the law distributes powers and functions to each key player including the Constituent Assembly which was given power to enact new constitution without any substantive limitation, id est, limitations as to the contents of the New Constitution, the law imposed on the Constituent Assembly the procedural limitations only, id est, procedures which the Constituent Assembly is required comply with in the process of making new constitution.

If one reads Swahili Version in respect of Section 25 of The Constitution Review Act, 2011, the prima facie impression which you get is that the Constituent Assembly has power to approval the Draft Constitution without power to amend, change, vary or improve any provision of Draft Constitution as this is suggested by the use of Swahili word kupitisha which literally may be interpreted in English Language to mean approve. This prima facie impression may be cemented by the argument that the Parliament used the word kupitisha to confer power to the Constituent Assembly to approve the Draft Constitution only without power to change it on ground that should the Parliament intended to confer power to the Constituent Assembly to enact the Draft Constitution with all power to effect any change, amendment, or variation inevitably the Parliament would have used the Swahili Word kutunga [KatibaMpya] which in English Language can be literally interpreted to mean enact [New Constitution]. This argument sounds valid and strong in logic but sounds weak and invalid in law because of Section 84 of The Interpretation of Laws Act [CAP. 1R.E 2002] which provides as reproduced hereunder;

84.Language of the Laws of Tanzania

(1) The language of the laws of Tanzania shall be English or Kiswahili or both.(2) Where any written law is translated from one language into another and published in both languages, then in the case of conflict or doubt as to the meaning of any word or expression, the version of the language in which the law was enacted shall take precedence.(3) Where any written law is enacted in both languages and there occurs a conflict or doubt as to the meaning of any word or expression, the English version shall take precedence.

Section 84 (3) of The Interpretation of Laws Act[footnoteRef:12] provides that where a law is enacted in both English and Swahili Languages and doubt or conflict of meaning of any word or expression arises inevitably the English Version takes precedence or prevails over Swahili Version. Section 84 (3) of The Interpretation of Laws Act[footnoteRef:13] provides that in the case of conflict or doubt as to the meaning of any word or expression, the version of the language in which the law was enacted shall take precedence. Now there is conflict of meaning as Swahili Version uses the word KUPITISHA which suggest that the Constituent Assembly has power to approve the Draft Constitution only in the Constitutional Review Process whereas the English Version uses the words MAKE in Section 25 (1) of the Act, PASS in Section 25 (2) of the Act and ENACT in Section 28 (1) and (2) of the Act all words of which suggest that the Constituent Assembly has power to enact the Draft Constitution in the Constitutional Review Process. Since there is a doubt or conflict of meaning as to which word is legally appropriate between word enact and word approve , the English Version must takes precedence or must prevails over Swahili Version indispensably the legally appropriate word is enact and not approve.. [12: [CAP. 1R.E 2002]] [13: ibid]

From the explanation above we have observed that there was a cardinal mistake was committed by the Legislature to confer substantively unlimited power and superficially limited procedural power to the public institution of the Constituent Assemblys caliber which has the destiny of the nation and its people and its future generations in its hands in this sacred Constitutional Review Process as Professor Wade would have put it power corrupts, absolute power corrupts absolutely. There is a great possibility of the Constituent Assembly to abuse its absolute power absolutely, therefore, there is urgent need to find a sustainable and legal solution to prevent the possible abuse of power by the Constituent Assembly. The solution to this problem is not to misconstrue or misinterpret the law in favour of what may be thought to be good for the nation and its people instead the sustainable solution is to find legally acceptable process in which an effective, efficient and sufficient procedural and substantive limitations can be imposed on the Constituent Assembly for purpose of preventing the Constituent Assembly in the abuse of powers conferred on it.

Therefore it is pertinent to devise and impose effective, efficient and sufficient procedural and substantive limitations as to invite the provisions of Section 25 (1) of The Constitution Review Act, 2011 with a view of requiring the Constituent Assembly before discussion of Drafting Constitution and before enactment of Proposed Constitution the Constituent Assembly should invoke the clause

and to make such other provisions as the Constituent Assembly may find necessary

entrenched in the provisions of Section 25 (1) of the Act so that the Constituent Assembly can enact the law which will impose procedural and substantive limitations.

It is pertinent to conclude that there are no Substantive Limitations imposed by constitution, legislation, subsidiary legislation, case law or any other law on the Constituent Assembly in the process of enacting New Constitution, therefore, the Constituent Assembly has power not only to improve, vary, modify or amend the Draft Constitution but also can substantially radically change it or can substitute the Draft Constitution with its own Proposed Constitution which is radically or completely different from the Draft Constitution submitted to the Constituent Assembly by Chairperson of Constitutional Review Commission which will be as if the Constituent assembly participated in the whole exercise of the making of the constitution which was the case in Cambodia, India, and East Timor, among others.

However, the statute has directly and indirectly imposed some Procedural Limitations only including the two third Majority Rule. The indirect procedural limitations have been imposed by sanctioning of The Standing Order to be made by the Constituent Assembly as per Section 26 (1) of The Constitution Review Act, 2011.

The solution to this problem is not to misconstrue or misinterpret the law in favour of what we think is good for nation and its people instead the sustainable solution is to find legally acceptable process in which we can impose effective, efficient and sufficient procedural and substantive limitations on the Constituent Assembly for purpose of prevent the Constituent Assembly to abuse powers conferred on it. The legally acceptable process which we should devise to impose effective, efficient and sufficient procedural and substantive limitations is to invite the provisions of Section 25 (1) of The Constitution Review Act, 2011 so that the Constituent Assembly can enact the framework law founded on national consensus which will impose effective, efficient and sufficient procedural and substantive limitations on the Constituent Assembly for purpose of preventing the Constituent Assembly to abuse its power.