Annual State of Constitutionalism in The East African 2010 - 0

The Annual State of
Constitutionalism in
East Africa 2010
Editor
Morris Odhiambo
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© Kituo cha Katiba 2012

First published 2012
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ISBN: 978-9970-25-151-3
Contents
Abbreviations and Acronyms.........................................................v
1. Introduction............................................................................ 1
Morris Odhiambo
2. The State of Constitutionalism in the East African

Community 2010 ................................................................. 11
J. Osogo Ambani
3. Constitutionalism in Kenya, 2010......................................... 29

Danny Irungu Mwangi
4. The State of Constitutionalism: Good Governance,

Democratic Development and Human Rights in
Rwanda in 2010 ................................................................... 68
Christian Garuka
5. The State of Constitutionalism in 2010: Issues, Debates and

Perspectives for Tanzania Mainland ...................................... 98
William Tate Olenasha
6. The Annual State of Constitutionalism in Uganda 2010:

Achievements, Challenges and Prospects ............................. 139
Jackie Tumusiime
7. The State of Constitutionalism in Zanzibar, 2010 ............... 183

Ali Uki
iii
Abbreviations and Acronyms
EAC: East African Community
CLARION: Centre for Law and Research International
NGOs: Non-Governmental Organisations
EACT: East African Community Treaty
EACJ: East African Court of Justice
CCM: Chama cha Mapinduzi
NEC: National Electoral Commission
KANU: Kenya African National Union
LEPREC: Law and Policy Research Consultants Ltd.
EALA: East African Legislative Assembly
ACHPR: African Charter on Human And People’s Rights
ANAW: African Network for Animal Welfare
UDHR: Universal Declaration of Human Rights
EADB: East African Development Bank
LVFO: Lake Victoria Fisheries Organisation
IUCEA: Inter-University Council for East Africa
KPA: Kenya Ports Authority
AU: African Union
UN: United Nations
ICCPR: International Covenant on Civil and Political Rights
PACL: Projects and Allied Consultants
KNDR: Kenya National Dialogue and Reconciliation
CoE: Committee of Experts
AG: Attorney General
CIC: Commission for the Implementation of the Constitution
KLRC: Kenya Law Reform Commission
JSC: Judicial Service Commission
KNHREC: Kenya National Human Rights and Equality Commission
KNHRC: Kenya National Commission on Human Rights
NCGD: National Commission on Gender and Development
MP: Member of Parliament
ICCPR: International Covenant on Civil and Political Rights
v
IIEC: Interim Independent Electoral Commission
TJRC: Truth, Justice and Reconciliation Commission
ICC: International Criminal Court
KPF: Kenya Police Force
FPTP: First-past-the-post
NARC: National Rainbow Coalition
KACC: Kenya Anti-Corruption Commission
NCPB: National Cereals and Produce Board
CDF: Constituency Development Fund
LATF: Local Authority Transfer Fund
CIPEV: Commission of Inquiry into Post-Election Violence
KNDR: Kenya National Dialogue and Reconciliation
EU: European Union
AU: African Union
ICTR: International Criminal Tribunal for Rwanda
ICESCR: International Covenant on Economic, Social and Cultural
Rights
CEDAW: Convention on the Elimination of All Forms of
Discrimination Against Women
CRC: Convention on the Rights of the Child
CRPD: Convention on the Rights of People with Disabilities
ACHPR: African Charter on Human and People’s Rights
ACRWC: African Charter on the Rights and Welfare of the Child
RPF: Rwandan Patriotic Front
PL: Parti Liberal
PSD: Parti Social Democrate
PPC: Parti pour la Paix et la Concorde
EU: European Union
US: United States
PDP: Pacte de defense du Peuple
FDU: Forces Democratique Unifiees
TANU: Tanganyika National Union
Mageuzi NCCR: Mageuzi National Convention for Construction and
Reform-
vi
CSOs: Civil Society Organisations
USAID: United States Agency for International Development
NEC: National Electoral Commission
CHADEMA: Chama cha Demokrasia na Maendeleo
NBS: National Bureau of Statistics
TEMCO: Tanzania Electoral Monitoring Committe
EU-EOM: European Union Election Observation Mission
TLS: Tanganyika Law Society
PEV: Post Election Violence
OCD: Officer Commanding District
OCP: Inspector General of Police
CBOs: Community Based Organisations
FBOs: Faith Based Organisations
PCCB: Prevention and Combating of Corruption Bureau
EAOCCA: Economic and Organised Crimes Control Act
TANESCO: Tanzania Electric Supply Company Limited
UK: United Kingdom
HURIPEC: Human Rights and Peace Centre
IPC: Inter-Party Coalition
EC: Electoral Commission
UPF: Uganda Police Force
USD: United States dollars
CHOGM: Commonwealth Heads of Government Meeting
PSAs: Production Sharing Agreements
DR: Democratic Republic of Congo
EIA: Environmental Impact Assessment
NEMA: National Environment Management Authority
UNDP: United Nations Development Programme
PAC: Public Accounts Committee
NRM: National Resistance Movement
FGM: Female Genital Mutilation
DLBs: District Land Boards
FHRI: Foundation for Human Rights
IGP: Inspector General of Police
vii
CBS: Central Broadcasting Service
DP: Democratic Party
IDEA: Institute for Democracy and Electoral Assistance
EMB: Election Monitoring Body
ULS: Uganda Law Society
NCF: National Consultative Forum
GNU: Government of National Unity
CUF: Civic United Front
URT: United Republic of Tanzania
SUZA: State University of Zanzibar
ZEC: Zanzibar Electoral Commission
LegCo: Legislative Council
AFP: Association of Framers Party
NRA: National Reconstruction Alliance
TADEA: Tanzania Democratic Alliance
ZAN-ID: Zanzibar Identity Cards
ZLS: Zanzibar Law Society
Chapter One
Introduction
From Country Constitutional Dynamics to the
Complexities of Integration: Appreciating the
Constitutionalism Nexus
Morris Odhiambo*
Conceptualising the Nexus

The continued publication of the Kituo Cha Katiba East
African Studies series has, without doubt, continued to
underscore the importance of the analysis of Constitutional
developments in the East African Community (EAC) and its
partner states. More than 10 publications after the launch of
this series, the pessimist described by Benson Tusasirwe in the
introduction to the 2003 report, has no doubt been convinced
of the importance of “intellectually confronting power” as
the authors have done over the years. Tusasirwe’s imaginary
pessimist might have been convinced that “for decades, the
region. Had been mired in tyranny, state-inspired abuse of
human rights and in many cases, a near-total collapse of
* Executive Director of Centre for Law and Research International

(CLARION), Nairobi, Kenya. He holds a master’s degree in International
Studies (University of Nairobi), a post-graduate diploma in Mass
Communication (University of Nairobi), and a diploma in Management
of Non-Governmental Organisations (NGOs) (Kenya Institute of
Management).
1
2 The Annual State of Constitutionalism in East Africa 2010
Constitutionalism and the rule-of-law”1 and that, therefore,

there was nothing to report on Constitutionalism. Indeed, the
contradiction inherent in the existence and persistence of
that state of affairs within states that profess the existence of
written Constitutions, with clear safeguards and assurances of
respect for human rights and the rule of law is in itself worthy
of study, analysis and documentation. After all, the wonder of
the existence of Constitutions without Constitutionalism was
long turned into an intellectual gem by the late Prof. Okoth
Ogendo.
If the curiosities of Tusasirwe’s pessimist have been
contained through the intellectual exertions of the various
contributors to the series, then perhaps that satisfaction
has led to deeper questions about the relationship between
Constitutional developments within specific EAC member
states and the construction of the Community. If not on
broader strokes, the keen reader may at least have started to
consider the tensions developing between the states party to
the East African Community Treaty (EACT) in their traditional
espousal of sovereignty, and the possibility of ceding some
of that valuable sovereignty to the Community as a supra-
national entity. Those who have grappled with the various
dynamics of integration understand that when processes of
integration start, it may be difficult to stop them as “states
find new areas of integration guided by the invisible hand” in
accordance with the neo-functionalist conceptual paradigm.
Furthermore, dominant state elites seem to now have
something more sinister to worry about going by the
extent to which the East African Court of Justice (EACJ) is
exerting its influence across the region. As Lawrence Mute
described succinctly in his introduction to the 2004 report,
1
Tusasirwe Ben, ed. Constitutionalism in East Africa: Progress, Challenges
and Prospects in 2003, 2003.
Introduction 3
oftentimes, in the lives of states, “. a congenial trajectory of

gradual democratisation is brought to a shuddering stop by
circumstances more often than not designed by state elites
rather than chanced or dictated by the masses.”2 At the state
level, the masses may feel hopeless since very often their only
recourse to dealing with an elite preoccupied with selfish
interest and whose visionary lenses are hopelessly opaque,
is the cyclic and many times cynically managed elections.
Therefore, if Osogo Ambani is to be believed in his account
of the EACJ in this report, that is, if he is not “sexing up” the
developments at the Community in regard to the EACJ, then
the proverbial “big fish in a small pond” stature of bureaucrats
and politicians may have found their waterloo. This obviously
calls for much more optimism among those who have made
the struggle for Constitutionalism, democracy, and human
rights, their prime and lifelong undertaking.
But, perhaps it is important at this juncture to pause and
reflect on the critical questions. Is there a demonstrable
relationship between Constitutional developments in specific
Community states and the construction of the Community
itself? Is there a firm basis for the optimist’s view that the
Community and its organs, particularly the EACJ, could be
a refuge for citizens escaping the raw and rapacious urges of
elites in their individual states whose actions are designed to
defeat Constitutionalism?
A conclusion to the effect that the Kituo Cha Katiba East
African Studies series has contributed immensely to the
construction of the Community, at least from a scholarly point
of view, cannot be farfetched. Analyses of specific country
dynamics are juxtaposed with analyses of developments at
the Community level. Often times, it has been comforting to
2
Mute Lawrence, ed. Constitutionalism in East Africa: Progress, Challenges
and Prospects in 2004, 2004.
readers to be made aware of the similarities in some of the

Constitutional developments in the Community member
states that portend points of convergence; on the other hand,
a myriad of issues that demonstrate divergence have also
been critically appraised. It is important to note that both
the points of convergence and divergence on Constitutional
developments, affect the construction of the Community.
Indeed, the specific dynamics in the different countries
matter in the construction of the Community. Questions
regarding human rights, the extent to which elections are
free and fair, perceptions or reality of the extent of legitimacy
in the use of state power, the extent to which corruption
is prevalent in any one country and how it is being dealt
with or tolerated within the body-politic, are issues that are
critical to the construction of the Community. The success
of the integration effort could as well be the function of the
differences in how these issues manifest themselves within
the countries that are integrating.
One of the key challenges in any integration effort is the
real or perceived differences in social, political and economic
dynamics and progress of particular states. Indeed, the design
of the integration effort itself will often take into account
such differences as was witnessed in the establishment of the
Customs Union. In particular, harmonisation of tariffs took into
account the differences in the economic dynamics between
Kenya, Tanzania and Uganda, the then three members of the
Community. It is noteworthy too, that earlier attempts to fast
track the formation of the East African Political Federation
were met with less enthusiasm in Tanzania, compared to
Kenya and Uganda. Honest discussions regarding those
differences could, therefore, oil the wheels of integration
diplomacy, lessen friction, and add value to the integration
Introduction 5
effort. Constitutionalism, as a window of self-appraisal within

the Community, is a critical avenue towards understanding the
divergences and convergences. This is the greater contribution
made by the Kituo cha Katiba East African Studies series over
the years. The series presents an opportunity for the appraisal
of country dynamics and aids extrapolation to the realities
and complexities of constructing the Community.
Constitutional Developments in 2010

The specific issues dealt with in this report range from the
jurisprudence emanating from the EACJ; the 10th Amendment
to the Zanzibar Constitution of 1984 and its perceived impact
on political stability in the entire Republic of Tanzania
during an election year; the general elections in the Republic
of Tanzania, which returned Chama cha Mapinduzi (CCM)
to power, albeit with a watered down (but still significant)
mandate; the dynamics surrounding the presidential election
in Rwanda and the continued fallouts between President
Kagame and his erstwhile colleagues in the struggle to liberate
Rwanda; the referendum in Kenya, which ushered in a new
Constitutional dispensation and massive optimism, and the
anticipated challenges of accountability in managing new
wealth in Uganda in the name of oil. Important as they were
in their country-specific contexts, these specific issues have
implications on the construction of the Community.
Osogo Ambani reviews the jurisprudence through litigations filed
during the year and makes the fundamental conclusion that the court
is “…not only proactively acting as an appeal chamber for national
jurisdictions, but is equally prepared to seize jurisdiction over matters
concerning human rights and social justice.” In the court, East Africans
have “…acquired an additional cog wheel in the machinery for human
rights, social justice and Constitutionalism.” The writer is cognisant
of the tensions that this reality brings about, especially regarding the
issue of the jurisdiction of the court and the extent to which it can deal
with issues that are traditionally the domain of municipal or national
judiciaries. Far beyond written protocols, the activism of this court
appears to be the key tool in the proper definition and delineation of
its jurisdiction. But, in the analysis of this author, the bigger tension
may not be limited to judicial matters or related to human rights,
but to the wider, especially political ramifications of an organ of the
Community that appears ready to lead in “eroding” the traditionally
well guarded national sovereignty of individual states. This tension
was earlier captured by Don Deya in the 2004 report of this series.
It is probable that the potential of the EACJ in adjudicating matters,
hitherto considered the domain of national jurisdiction, will continue
to develop with time. And, as Ambani postulates, citizens may
just find recourse in the court in adjudication of matters regarding,
especially, the observance of human rights. Even though Kenyans
passed a Constitution, praised as one of the most progressive in the
world, there are provisions whose implementation will certainly face
resistance from the ruling bureaucratic and political elite, and their
acolytes in business. One such issue is the area of social and economic
rights. Danny Irungu notes that the 2010 Constitution “…alters the
rights’ landscape by identifying and enshrining social, economic,
and cultural rights (Bill of Rights, Chapter 4), hence fully abiding
by the principle of the indivisibility of rights, a clear departure from
the previous Constitution which only recognised political and civil
rights.”
Furthermore, the Constitution places a duty on the state to allocate
resources towards the progressive realisation of these rights and
provides, under Article 20 (5), that where the state claims that it does
not have the resources to implement any given right, the court dealing
with that matter shall be guided by the principle, inter alia, that it
is the responsibility of the state to show that the resources are not
Introduction 7
available. It is this kind of provisions that led to some in the ruling

elite to describe the Constitution, during the 2010 campaign period,
as “socialist.” If that is a representation of the dominant view among
the elite in regard to the language of human rights generally in the
Constitution, then Kenyans will need a very proactive and activist
judiciary to enforce the rights enshrined in the Constitution. The
EACJ might, if local remedies fail, not be too distant a recourse. This
is a sure ingredient to further tensions between the Kenyan state and
the organs of the Community, in this case the EACJ. Kenya’s state
elite, after all, tested the jurisdiction of the EACJ earlier in Prof Peter
Anyang Nyong’o and others v. the Attorney General of Kenya and 5
others, Reference No. 1 of 2006.
Perhaps in time, the Community’s other organs may come up
with ways of democratising elections in the region. Even though the
presidential election in Rwanda became more known for the arrest,
detention and trial of a number of potential presidential candidates
like Victoire Ingabire, Bernard Ntaganda and Deo Mushayidi,
most observer groups, including observers from the Community,
declared it free and fair. Worse still, opposition political parties
that had sought registration such as the Democratic Green Party,
were not registered. Additionally, various observer groups made
recommendations touching on the freedom of the press and more
respect for opposition views. Thus, Christian Garuka concludes in
his chapter on “Constitutionalism in Rwanda,” that “even though
the elections were free and fair to a large extent, the shortcomings
minimised the effect the conduct of the elections had on advancing
democratic rule. This was particularly in regard to the hurdles placed
on the way of opposition candidates.” In view of the construction
of the Community, this raises the question of whether there is need
for common standards for elections and more vigilance within the
Community to promote further democratisation.
Comparatively, the elections in Tanzania suffered different

challenges, the most significant being a fairly low voter turnout,
which should be a source of concern. Out of 20,137,303 registered
voters, only 42.84% (8,626,283) voted, a figure very low compared
to an average of 80% in previous years. But, the significance of this
particular election was more in its aftermath than in the conduct of
the election itself. Perhaps buoyed by Kenya’s success in ushering
in a new Constitutional dispensation, the Tanzanian opposition
united to demand Constitutional reforms. The trigger of the nascent
pro-Constitutional reform movement was the awakening of the
opposition to their inability to challenge the results of the presidential
election through the courts. The movement was also informed
by other imperatives as reviewed in this compendium: the limited
independence of the National Electoral Commission (NEC), the issue
of independent candidates, and the ever contentious aspects of the
Union. In his chapter, William Olenasha explains the initial reactions
to the quest for Constitutional review proposed by the opposition and
civil society by officialdom. Observers of the Kenyan situation will
pick out the similarities basing on the reaction of those who wield
power; on the other hand, the wielders of political power need to
understand that it is difficult to stop an idea whose time has come
as the Kenyan situation aptly demonstrated with the defeat of the
hitherto ruling party, the Kenya African National Union (KANU),
and the eventual rupture in the aftermath of the 2007 elections.
Away from elections and their dynamics, the management of
resources has always been an issue of concern to the citizens of East
Africa, with major corruption scandals being reported and, of late,
resignations or “stepping aside” of top government officials suspected
of involvement in corruption. In Tanzania, for instance, former Prime
Minister Edward Lowassa was forced to resign in the aftermath of a
parliamentary probe in relation to a power generation contract. Also,
the discovery of oil in Uganda inevitably led to concerns about the
Introduction 9
management of the resource. Even before the excitement over the

discovery had died down, the government was already being cautioned
against misuse of the proceeds of the essential resource. There were
allegations, for example, that the government had considered paying
for fighter jets purportedly purchased from Moscow at a cost of
$108m partly using crude oil. This, subsequently, lent credence to
fears over the management of the resource and whether it would
actually be utilised to benefit the people or shore up the quasi-military
regime. According to Jackie Tumusiime, the purchase was considered
unnecessary since the wars in the Great Lakes region had abated,
and further, that the cost was too high. The author emphasises that
the discovery of oil presented both opportunities and challenges in
governance. Questions were raised about the legitimacy of various
negotiations and whether they meet the standards of transparency and
accountability. Even though oil has not been discovered in other EAC
member states, there are already lessons emerging from the Ugandan
case on how the resource can be better managed.
Looking at Zanzibar, the 10th Amendment to the Constitution,
despite all its immediate benefits such as easing the tensions in
Zanzibar, fell short of a long-term solution to the underlying causes
of electoral tension in the isles, specifically, but also in the entire
Republic of Tanzania. The cynic, in fact, would argue that the
amendment was nothing more than a suspicious move by the elites
to enhance CCM’s chances of electoral success, a feat that was
actually achieved. Neither would it be the first time for this to happen.
Lawrence Mute noted in the Annual State of Constitutionalism
(ASC) 2004 report that in Zanzibar “. legislative changes were
employed in a contemptuous way to ensure electoral success for the
incumbent Chama cha Mapinduzi.” Self-serving elite pessimism is,
however, of zero value to the conditions of the struggling masses. A
wholesome “people-driven” process of Constitutional re-engineering
could provide the much needed reflection to come up with long-term
solutions. Luckily for Tanzania, even though there were incidents of

violence after the 2010 elections, these did not morph into long-term
crises like Kenya’s post-2007 experience. Quick decisions, however,
need to be made to avert future crises. This is why Tanzania’s ruling
elite need to create the necessary consensus for the post-2010 reforms.
Ali Uki’s analysis, however, indicates a good measure of pessimism
that the elite will rise to the occasion. Perhaps, again, the EACJ might
be called upon to arbitrate on this matter and help set the ball rolling
towards a new consensus.
In summary, the window pried open through this introduction is
only, but a small representation of the fundamental analyses contained
in this report. The author has attempted to lead the reader only to the
extent of considering the nexus between Constitutional developments
at specific country levels and the construction of the Community. It is
upon the reader to consider whether Ambani’s account and optimism
is justified by carefully exploring this report more. Without doubt,
though, the Constitutional developments at country level will continue
to determine the construction of the Community and vice versa.
However, the paper on Burundi is not included because it was not
available at the time of publication.
Chapter Two
The State of Constitutionalism in

the East African Community 2010
J. Osogo Ambani*
Introduction and Background

The traditional function of state Constitutions is to distribute
power to the various organs. Much as they are power channels,
democratic Constitutions are, however, usually swift to limit
government for the sake of the realisation of human rights.
For it is now trite that ‘political liberty is to be found … only
when there is no abuse of power’ yet experience has shown
that every man invested with power is apt to abuse it, and
to carry his authority as far as it will go.3 Constitutions thus
control government by, amongst others, establishing the rule
of law, separating powers and functions of state, ensuring
checks and balances and providing for participatory and
responsive governance based on the ideals of democracy and
* He is a lecturer in International Human Rights Law, Gender and the Law,

Constitutional Law and Jurisprudence, at the Catholic University of Eastern
Africa and Moi University and a consultant on democracy, governance,
gender and human rights with Law and Policy Research Consultants Ltd
(LEPREC). He holds a Bachelor of Laws degree (University of Nairobi)
and a master’s degree in Human Rights and Democratisation in Africa
(University of Pretoria, South Africa).
3
For an English version, see Baron de Montesquieu, The spirit of laws,
translated by T. Nugent, ( New York: Hafner Publishing Company,1949),xi
4.
11
good governance. The now well established art of limiting

government power is what is referred to as ‘Constitutionalism’.
This view can be reinforced with Nwabueze’s observation:
It is this limiting of the arbitrariness of political power
that is expressed in the concept of Constitutionalism.
Constitutionalism recognises the necessity of government,
but insists upon a limitation being placed upon its powers. It
connotes in essence, therefore, a ‘limitation on government;
it is the antithesis of arbitrary rule; its opposite is despotic
government, the government of will instead of law.’4
Additionally, De Smith concurs:
The idea of Constitutionalism involves the proposition that
the exercise of government power shall be bound by rules,
rules prescribing the procedure according to which legislative
and executive acts are to be performed and delimiting their
permissible content – Constitutionalism becomes a living
reality to the extent that these rules curb the arbitrariness of
discretion and are in fact observed by the wielders of political
power, and to the extent that within the forbidden zones upon
which authority may not trespass there is significant room for
the enjoyment of individual liberty. 5 (author’s emphasis).
It has also been affirmatively articulated that:
Constitutionalism is the idea that government should derive
its powers from a written Constitution and that its powers
should be limited to those set out in the Constitution.6
It therefore follows that written Constitutions are conceived
as condition precedents for the practice of Constitutionalism.
Indeed, Constitutions spring from a belief in limited
government.7 This may be why Okoth-Ogendo considered it a
paradox as well as a dilemma that in Africa – at the material
4
Nwabueze B.O., The Constitution in the Emergent States, (London:
Hurst,1972), p.1.
5
De Smith S.A., The New Commonwealth and its Constitutions, (London:
Stevens, 1964), p.106.
6
Ian Curie and Johan de Waal, The Bill of Rights Handbook. JUTA. p. 8.
7
A.W. Bradley and K Ewingeds., Constitutional and Administrative Law 11th
edition, (Longman, 1993), p.8.
The State of Constitutionalism in the East African Community 2010 13
epoch of review – it was possible to talk of ‘Constitutions

without Constitutionalism.’ The stunning revelation by this
writer of Constitutions devoid of Constitutionalism was, thus
forcefully expressed:
For that purpose, it is necessary to recall the primary
elements of that paradox: namely, commitment to the idea
of the Constitution, and rejection of the classical notion of
Constitutionalism.8
Furthermore, in order to achieve Constitutionalism, it is most
common for Constitutions to disperse state power to at least
three organs: the executive, the legislature, and the judiciary
at the national level.
History has bestowed upon the Executive, the Legislature and
the Judiciary the centre stage in the theory and practice of
the Constitution. To the practicalities of government, which
have in many cases dictated such a focus, must be added the
sheer force of tradition, which tends to commit scholastic
methodology to a framework of analysis so based.9
In this set up, the judiciary plays a critical role in ensuring the
realisation of rights. According to De Smith:
… Constitutionalism is practiced in a country where the
government is genuinely accountable to an entity or organ
distinct from itself; where elections are freely held on a
wide franchise at frequent intervals; where political groups
are free to organise and to campaign in between as well as
immediately before elections with a view to presenting
themselves as an alternative government; and where there
are effective legal guarantees of basic civil liberties enforced
by an independent judiciary: and I am not easily persuaded
to identify Constitutionalism in a country where any of these
conditions is lacking.10 (author’s emphasis).
8
HWO Okoth-Ogendo, “Constitutions without Constitutionalism:
Reflections on an African Political Paradox,” in Issa Shivji ed., State
and Constitutionalism: An African Debate on Democracy, (South African
Political Economy Series, Harare, 1991), p.6.
9
J.B. Ojwang, Constitutional Development in Kenya, (Nairobi: Acts
Press,1990),p.175.
10
De Smith S. A., “Constitutionalism in the Commonwealth Today,” in
Malaya Law Review 4(1962) ,p.1.
For members of the EAC: Burundi, Kenya, Rwanda, Tanzania

and Uganda, a novel additional judicial device which may
advance Constitutionalism and its residue, fundamental
rights and freedoms, is the East African Court of Justice (the
EACJ or the court).
A review of the court’s jurisprudence emanating from
litigations filed during 2010 reveals that the EACJ is not
only proactively acting as an appeal chamber for national
jurisdictions, but is equally prepared to seize jurisdiction over
matters concerning human rights and social justice.
In the process, East Africa has acquired an additional cog
wheel in the machinery for human rights, social justice and
Constitutionalism. Over and above national judiciaries, it
might appear recourse may now be had to the court, despite
failure by the Summit of the Community to write the relevant
protocol allowing appeals from municipal tribunals to lie
with the EACJ.
The court has proceeded to issue orders, even in matters
ideally and conventionally known to be fit for municipal
adjudication, and the concepts of Constitutionalism and
human rights are the beneficiaries of this activism. This
practice brings to passage Kindiki’s early prophesy that once
the human rights jurisdiction of the EACJ is activated, ‘the
jurisprudence of the court on human rights, Constitutionalism,
etc is likely to be visible.’11
Furthermore, 2010 also makes it possible to review
Constitutionalism from the points of view of the EAC secretariat
and the East African Legislative Assembly (EALA).
11
Kithure Kindiki, “The potential role of the East African Community in
promoting Constitutionalism in the Region,” in Moi University Law Journal,
Vol. 1, No.2 (March 2007): p.77.
Constitutionalism, Human Rights and EACJ

The EACJ is the creation of the Treaty for the Establishment
of the EAC (the Treaty).12 The Treaty, having identified the
court as one of the organs of the EAC,13 alongside the Summit,
the Council, co-ordination committees, sectoral committees,
the EALA and the Secretariat,14 assigns it judicial capacity.
The court, which comprises a First Instance Division and an
Appellate Division,15 ‘serves as an industrial court, in regard
to disputes between the Community and its employees’.16 The
court also has jurisdiction over matters:
(a) Arising from an arbitration clause contained in a contract
or agreement which confers such jurisdiction to which the
Community or any of its institutions is a party; or
(b) Arising from a dispute between the partner states regarding
this Treaty if the dispute is submitted to it under a special
agreement between the partner states concerned; or
(c) Arising from an arbitration clause contained in a commercial
contract or agreement in which the parties have conferred
jurisdiction on the court.17
At the request of the Summit, the Council or a partner state,
the court may give an advisory opinion regarding a question
of law arising from the Treaty affecting the Community.18
But, it is in reference to Articles 23 and 27 of the Treaty
that sufficient heat has been generated. The former provision
fashions the court as a judicial body meant to ‘ensure
adherence to law in the interpretation and application of and
12
As amended on December 14, 2006 and August 20, 2007.
13
Article 9(1)(e).
14
See generally, Article 9.
15
Article 23(2).
16
Maurice Oduor, “Judicial independence in the East African Court of
Justice,” Moi University Law Journal, Vol. 1, No.1 (April 2006): 53. See also
Article 31 of the Treaty.
17
Article 32 of the Treaty.
18
Article 36(1).
compliance with’ the Treaty. The import of the latter Article

is that:
(a) The court shall initially have jurisdiction over the
interpretation and application of the Treaty:
(b) Provided that the court’s jurisdiction to interpret under this
paragraph shall not include the application of any such
interpretation to jurisdiction conferred by the Treaty on
organs of partner states (author’s emphasis)
(c) The court shall have such other original, appellate, human
rights and other jurisdiction as will be determined by the
Council at a suitable subsequent date. To this end, the
partner states shall conclude a protocol to operationalise
the extended jurisdiction.
The court, however, has not been overtly extended ‘original,
appellate, human rights and other jurisdiction’ as envisioned
by the above Article, since the partner states are yet to negotiate
a protocol as required.
According to Maurice Oduor, member states have ‘in
several ways limited the area of competence of the court in a
bid to minimise interference by it in their affairs.’19
It is understandable that the partner states would have wished
to ‘stagger’ the acquisition of jurisdiction by the court as a
logistical strategy. But having regard to the background of
integration and cooperation in East Africa, the conclusion that
the partner states are still wary ceding complete authority to
an institution over which, once created, they will have little or
no control seems inescapable. This explains the caution with
which the establishment of the court has been approached
with jurisdiction being granted mainly over matters not likely
to have direct significant implications for the political and
legal institutions of partner states. 20
Furthermore, the resultant lean and slim jurisdiction has
recent explanations. The decisive moment for the EACJ was
November 2006 when, in Prof. Peter Anyang’ Nyong’o and
19
Oduor, op. cit. Journal, Vol. 1, No.1 (April 2006): p.52.
20
Ibid., p.60.
10 others v. The Attorney General of Kenya and 5 others,21 it

issued interim orders restraining the clerk to the EALA and
the secretary general from recognising 9 persons named in
the order as duly elected by the National Assembly of Kenya
to the EALA or permitting them to participate in any function
of the regional legislature until the final determination
of the Reference. The cause challenged the legality of the
nomination of the 9 persons to the EALA arguing that the
National Assembly of the Republic of Kenya did not comply
with Article 50 of the Treaty. This verdict, though a triumph
for the court’s own independence, Constitutionalism and
human rights, shook the partner states’ governors to the core.
In response to the court’s ruling, the Council soon advised
the Summit that the issue be referred to the Sectoral Council
on Legal and Judicial Affairs to study the jurisdiction of the
court and other related matters and advise on the way forward.
The other formative activities sparked by this daring decision
of the EACJ were thus documented by the court itself:22
An extraordinary meeting of the three attorneys general of
Kenya, Tanzania and Uganda held on December 7, 2006, which
considered draft amendments to the Treaty and recommended
to the Council that the same be approved and submitted to
the Summit pursuant to Article 150 for consideration and
adoption;
A meeting of the Council held in Arusha on December 8, 2006,
during which the draft amendments to the Treaty approved by
the meeting of the attorneys general of the partner states was
considered and approved;
Submission of the proposed amendments to the partner
states by the secretary general on December 9, 2006 and the
21
Reference No. 1 of 2006. The decision was handed down on November 27,
2006.
22
See matter pitting the East African Law Society, the Law Society of Kenya,
the Tanganyika Law Society, the Uganda Law Society and the Zanzibar
Law Society against the attorney generals of Kenya, Tanzania and Uganda
and the secretary general of the East African Community. Reference No. 3
of 2007.
respective replies dated 11, 12 and 13 December, 2006;

The adoption of the amendments and signing of the instrument
of adoption by the Summit on December 14, 2006; and
The deposit with the secretary general of the instruments of
ratification of the amendments by the Governments of Kenya
on January 8, 2007, of Uganda on February 26, 2007 and of
Tanzania on March 19, 2007.
The upshot of these activities were real amendments to the
Treaty, restructuring the court into two divisions;23 reviewing
the grounds for removing judges of the court and providing
for suspension of judges, who are under investigation for
removal in their home country or are charged with such
offence (this probably targeted some Kenyan judges facing
investigation domestically and who had been part of the
decision);24 limiting the court’s jurisdiction to that conferred
by the Treaty or organs of partner states;25 setting a time limit
within which a reference by legal and natural persons may
be instituted;26 laying the grounds on which appeals may be
made;27 and rendering past decisions of the court and existing
judges to be decisions and judges of the First Instance Division
respectively.28
All these guidelines, apart from intimidating the judges,
were meant to belittle the EACJ’s position and to as much
as possible, deny it an opportunity to interact with matters
instituted by nationals of the ‘communing states’. Despite
these developments, the court has largely demonstrated
that it could still be effectively deployed as a lethal arsenal
in the battle for Constitutionalism and human rights in
East Africa. An emerging and perhaps most controversial
23
By dint of Article 24.
24
Article 26.
25
Article 27 and 30.
26
Article 30.
27
Article 35A.
28
Article 140A.
aspect of the court’s jurisprudence seems to be the resolve

to intervene in almost all matters concerning human rights
and social justice against the above odds and even where its
jurisdiction is vividly contested. For instance, in spite of the
‘jurisdictional predicament’ described above, the EACJ has
not shied away from adjudicating national matters, especially
those concerning human rights. Through what is hailed here
as progressive interpretation of its mandate, it has availed
opportunity for East Africans to speak out their complaints.
In a petition filed during the year under review, Emmanuel
Mwakisa Mjawasi and 748 others v. The Attorney General of the
Republic of Kenya,29 court seized jurisdiction to determine a
largely labour/human rights dispute pitying former employees
of the defunct EAC and the Republic of Kenya. The EACJ, thus
justified its seizure of jurisdiction:
The Court is being asked to determine whether the alleged
failure by the Kenya Government to pay the Claimants their
terminal benefits constitutes a violation of Articles 6(d) and
7(2) of the Treaty. The fact that the Reference also contains
allegations of violations of human rights under the conventions
listed therein cannot prevent this Court from exercising its
mandate under Article 27(1) of the Treaty. 30
The court cited the fact that the Treaty itself provides, as one
of the Community’s fundamental principles, good governance,
including adherence to the principles of democracy, the rule-
of-law, accountability, transparency, social justice, equal
opportunities, gender equality, as well as the recognition,
promotion and protection of human and people’s rights in
accordance with the provisions of the African Charter on
Human and People’s Rights (ACHPR).31 The other reason
29
Emmanuel Mwakisa Mjawasi and 748 others v. The Attorney General of
the Republic of Kenya. Reference No. 2 of 2010. Though filed in 2010, the
decision was handed down on September 29, 2011.
30
Ibid.
31
Article 6(d).
given for coming on board was an operational principle of the

Community obligating partner states to abide by the principles
of good governance, including adherence to the principles of
democracy, the rule of law, social justice and the maintenance
of universally accepted standards of human rights.32
With respect to the rule as to the exhaustion of local
remedies, the EACJ noted that there is no express provision in
the Treaty requiring the exhaustion of local remedies before
filing a Reference.33 Often, this rule acts as an avoidance
technique by international tribunals, especially where they
are unwilling to entertain certain litigation. The EACJ appears
to do away with this genre of technicality altogether. The
court, however, conceded that it was not in dispute that the
steps anticipated in Article 27(2), which would have afforded
the tribunal human rights competence, have not yet been
taken.34
In another matter filed in 2010, Africa Network for Animal
Welfare (ANAW) v. The Attorney General of the Republic of
Tanzania,35 the EACJ yet again claimed jurisdiction over a
matter challenging the action of the Tanzania government to
upgrade or tarmac a road across the Serengeti National Park.
The court accounted that the Treaty (under Article 30(1))
enables natural and legal persons to refer to it matters touching
on the legality of any Act, regulation, directive, decision or
action of a partner state on the grounds that it is unlawful or
is an infringement of the Treaty. The court then proceeded
to progressively interpret Article 30(3) of the Treaty, which
provision is designed to preclude the EALA’s jurisdiction,
where an Act, regulation, directive, decision or action, has
32
Article 7(2).
33
Emmanuel Mwakisa Mjawasi and 748 others v. The Attorney General of the
Republic of Kenya, op. cit.
34
Ibid.
35
Reference No. 9 of 2010, decided on 29 August, 2011.
been reserved under the Treaty to an institution of a partner

state. In the considered view of the judges:
… The provisions of the sub-article are very clear and must
be read strictly. Unless an Act, regulation, directive, decision
or action has been reserved under this Treaty to an institution
of a Partner State, then, plainly it does not come within the
ambit of the sub-article. … We have no flicker of doubt that
the action being complained of in the present Reference does
not come within the ambit of actions envisaged under Article
30(3) of the Treaty.
The court also demonstrated that it was ready to prefer
substance over form, for it admitted the cause by way of
Notice of Motion, where the rules specifically required a
Reference.36
Jurisdiction was yet again taken hold of in the Independent
Medical Unit v. the Attorney General of the Republic of Kenya
and 4 others case.37 The claimants had alleged that the
Republic of Kenya and the four other respondents carried out
executions, torture, cruel, inhuman and degrading treatment of
over 3,000 Kenyan residents in the Mt. Elgon district between
2006 and 2008 and that the government took no measures
to prevent, investigate or punish the perpetrators of these
actions. The petition alleged that this contravened several
international human rights conventions such as the Universal
Declaration of Human Rights (UDHR) and international law
as well as the Kenyan Constitution and laws, and the Treaty.
The court stated categorically that it would not abdicate its
duty to interpret the Treaty because human rights violations
(for which it has yet to be granted jurisdiction) are mentioned
in the Reference.
Although the Treaty now has time limits, requiring, for
instance, that litigation has to be instituted within two months
36
Africa Network for Animal Welfare (ANAW) v. The Attorney General of the
Republic of Tanzania, op. cit.
37
Reference No. 3 of 2010, decided on June 29, 2011.
of the enactment, publication, directive, decision or of action

complained of, or in the absence thereof, of the day in which
it came to the knowledge of the complainant,38 as the case
may be, the EACJ still admitted this matter justifying that:
Upon careful consideration of this point of objection, it is
our considered view that the matters complained of are
failures in a whole continuous chain of events from when the
alleged violations started until the Claimant decided that the
Republic of Kenya had failed to provide any remedy for the
alleged violations. We find that such action or omission of a
Partner State cannot be limited by mathematical computation
of time.
Perhaps (so far), one of the few acceptable challenges to
jurisdiction is that which was registered in an earlier decision
of Modern Holdings (EA) Ltd v. Kenya Ports Authority.39 In this
case, the court accepted the argument that the respondent
in any matter before it must be either an institution of a
partner state or an institution of the Community. According
to Article 9(2), the institutions of the Community are such
bodies, departments and services as may be established
by the Summit. These institutions are enumerated under
Article 9(3) to include: The East African Development Bank
(EADB); the Lake Victoria Fisheries Organisation (LVFO) and
surviving institutions of the former EAC like the East African
Civil Aviation Academy, Soroti, the East African School
of Librarianship, and the Inter-University Council for East
Africa (IUCEA). Kenya Ports Authority (KPA), which had been
sued in the case under review, thus did not qualify as one of
the potential respondents envisaged under Article 30 of the
Treaty.
As the reviewed cases have demonstrated, with respect
to the question of Constitutionalism and human rights at
38
Article 30 (2).
39
Reference No. 1 of 2008, decided on February 12, 2009.
the EACJ, the main progress during the period under review,
2010/11, in terms of jurisprudence, is the court’s willingness
to intervene even in matters ordinarily thought to be the
domains of municipal law through purposeful interpretation
of its mandate. This bold approach persists despite both
tacit and overt gestures by partner states against it. It is,
particularly instructive that the court does this in the absence
of a protocol extending its jurisdiction. In 2010, East Africans
demonstrated their interest in extended jurisdiction through
the innovative litigation lodged before the court. In the battle
between the people and communing states, thus far, the EACJ
has acted as the pivot point that has tilted the lever in favour
of Constitutionalism and human rights. Although the winner
is East Africans, it is up to the people and the court to keep the
struggle alive being wary of the states/governments, for they
have openly shown discomfort with the court’s “intrusive”
tendencies.
Constitutionalism and EAC Secretariat

During the period under review, it became apparent that
the office charged with political affairs at the Secretariat
is spearheading the development of a binding protocol on
good governance.40 According to the EAC, the protocol,
once operational, would provide the necessary framework
for EAC efforts in upholding the fundamental principles of
the Community, which include democracy, the rule-of-law,
protection of human rights, accountability, transparency and
equal opportunities, etcetera.41
Notably, another related development during 2010 was
the recommendation by the heads of national human rights
40
As per press release by the EAC, Arusha: Tanzania, Monday, January
18, 2010. See press conference of February 19, 2010.
41
Ibid.
commissions in the Community to the Council of Ministers

that the draft EAC Bill of Rights be adopted.42 The draft
Bill of Rights is envisaged to set a common standard for
harmonisation of the bills of rights in the respective partner
states.43 According to EAC deputy secretary general (political
federation), Beatrice Kiraso, the draft Bill is envisioned to
support the EAC Good Governance Protocol and its four pillars:
democracy and democratisation processes; human rights and
equal opportunities; anti-corruption, ethics and integrity; and
the rule of law and access to justice.44 The draft Bill proposes
that the EACJ extends its jurisdiction to include adjudication
on the Bill of Rights,45 another very positive development.
Constitutionalism and EALA

An emerging EALA practice, capable of positive results
in the realm of human rights and Constitutionalism, is the
election observation missions. In 2010 alone, the EAC/EALA
did dispatch elections observer missions to Burundi46 and
Tanzania.47
According to the EAC Secretariat, the Burundi mission
aimed to assess whether favourable conditions existed to
enable Burundians to freely express their will and whether
elections would be conducted in accordance with the country’s
elections legal framework.
Additionally, the mission aimed to ascertain whether the
final results of the electoral process reflected the wishes of
42
See Press Release dated June 3, 2010.
43
Ibid.
44
Ibid.
45
Ibid.
46
The legislative elections in the country, slated for July 23, 2010.
See secretariat press release of July 20, 2010. See, http://www.eac.
int/about-eac/eacnews.html.
47
The general elections were slated for October 31, 2010 in both Tanzania
Mainland and Zanzibar.
the people, and whether the elections met the benchmarks

set out in the ACHPR, the African Union (AU) Declaration
on the Principles Governing Democratic Elections in Africa,
the United Nations (UN) Declaration on Human Rights and
the International Covenant on Civil and Political Rights
(ICCPR). In carrying out its work, the mission was required
to be guided by the Declaration of Principles for International
Election Observation, the Code of Conduct for International
Election Observers and the draft EAC Guidelines for Elections
Observation, Monitoring and Evaluation.
Subsequently, the electoral mission to Burundi made a
report in which a number of issues requiring attention were
identified. Key among the issues was the election law itself,
the need to address the funding gap for the elections, timely
voter registration, and improvement of security during the
campaign and election period.
Other issues that the Forum of Electoral Commissions
had earlier identified as key, and needed to be addressed at
the EAC level, were the cost of elections, ownership of the
process, building confidence of the masses in the electoral
commissions, minimising electoral disputes and harmonising
electoral laws to adopt best practices.
The mandate for the election team to Tanzania was to observe
the preparations for the election, the polling, the counting and
the results process, and the overall electoral environment.
Furthermore, the mission was to assess the conduct of the
process, and where appropriate, make recommendations for
strengthening the electoral framework in future.
The mission would also look out for the best electoral
practices that could be emulated in the region and generally
to widen and deepen cooperation between partner states in
socio-economic and political affairs. Lastly, the mission was
mandated to ascertain whether the elections were free and

fair and conformed to the principles of good governance and
democracy in the region.
Article 3 of the Treaty requires ‘adherence to universally
acceptable principles of good governance, democracy, the
rule of law, observance of human rights and social justice’
and Article 5(1) of the Treaty provides for ‘…widening and
deepening cooperation among the partner states in political,
economic, social and cultural fields, research and technology,
defence, security and legal and judicial affairs, for their mutual
benefit.’ To this end, the EAC partner states have agreed under
Article 123 to cooperate in the areas stated for the purpose of
achieving the objectives of the Community under Article 5 of
the Treaty.
During the same period, the EALA adopted the draft
Election Observation Manual for the EAC.48 The manual is
expected to enhance democracy, the rule of law and good
governance. The EAC committee on regional affairs and
conflict resolution argues that the document sets a common
standard to determine the credibility of electoral processes
and the legitimacy of electoral outcomes in the EAC.
Furthermore, the manual aims to entrench a democratic
culture of transparent electoral processes and the prevention
of conflict in the region. The document reportedly49 provides
for impartial, all inclusive competent and accountable
electoral institutions, staffed with well trained personnel
and equipped with adequate logistics. It sets principles
and conditions for electoral systems, election management
bodies, voter registration, registration of political parties, the
nomination process and the campaign process. It also provides
guidelines for observation missions. Under this scheme, for
48
During the third meeting, third session of the second Assembly.
49
See Press Release.
instance, the preliminary report of observers would have to

be accurate, timely and impartial and communicated to the
Election Monitoring Board within four hours after the end of
the voting.
Conclusion
While the EAC still faces many challenges, including the
very process of integration, a review of 2010 may not be
disappointing. From this discussion, it is clear that East
Africans are both able and willing to engage the regional
governance apparatus; a positive move for the democratisation
project. It is equally gratifying that East Africa citizens may
now have recourse beyond their national judicial systems,
which sometimes are not beyond political control. There is
need, however, to encourage citizens of the newer members
such as Rwanda and Burundi, to take cue and litigate their
issues before the regional court as their counterparts have
done.
The year 2010 also highlights positive developments
in the realm of elections and their observations. Election
observer missions are crucial first because they are a check in
themselves and second, because they help document important
lessons which are good for future electoral processes. In
the future, the EAC could sharpen this mechanism so that
it is used effectively. It is even more encouraging that the
Community’s secretariat has endeavoured to come up with
critical instruments to aid these processes, for instance,
the draft Election Observation Manual for the East African
Community. These initiatives should be continued and made
better for a stable Community.
References
Books
A.W., Bradley and K., Ewing. eds. Constitutional and Administrative
Law 11th Edition. Longman. 1993.
B., de Montesquieu. The Spirit of Laws. trans T. Nugent. New York:
Hafner Publishing Company. 1949.
B.O., Nwabueze. The Constitution in the Emergent States. London:
Hurst. 1972.
De Smith, S.A. 1962. “Constitutionalism in the Commonwealth
Today.” Malaya Law Review. 1962.
Ian, Curie and Johan, de Waal. The Bill of Rights Handbook. JUTA.
Issa, Shivji.ed. State and Constitutionalism: An African Debate on
Democracy.Harare.1991.
J.B., Ojwang. Constitutional Development in Kenya. Nairobi: Acts
Press.1990.
S.A., de Smith. The New Commonwealth and its Constitutions.,
London: Stevens. 1964
Journal Articles
Kithure,.Kindiki. “The potential role of the East African Community
in Promoting Constitutionalism in the Region.” Moi University
Law Journal, Vol. 1, No. 2 (March 2007).
Oduor, Maurice. “Judicial independence in the East African Court of
Justice.” Moi University Law Journal, Vol. 1, No.1( April 2006).
Judicial Decisions
Africa Network for Animal Welfare (ANAW) v. The Attorney General of
the Republic of Tanzania, Reference No. 9 of 2010.
Emmanuel Mwakisa Mjawasi and 748 others v. The Attorney General
of the Republic of Kenya. Reference No. 2 of 2010.
Independent Medical Unit v. the Attorney General of the Republic of
Kenya and 4 others, Reference No. 3 of 2010.
Modern Holdings (EA) Ltd v. Kenya Ports Authority, Reference No. 1
of 2008.
Prof. Peter Anyang’ Nyong’o and 10 others v. The Attorney General of
Kenya and 5 others, Reference No. 1 of 2006.
28
Chapter Three
Constitutionalism in Kenya, 2010
Danny Irungu Mwangi*
Introduction
This chapter is a discussion of the Constitutional developments
that took place in Kenya during 2010. In addition, the chapter
equally illuminates the greatest development of the year, that
is the promulgation of the 2010 Constitution of Kenya (in
short “the Constitution” or “the 2010 Constitution”). Similarly,
other milestones and developments are also explored.
Key Milestones in 2010 Likely to Enhance Good

Governance, Democratic Development and
Constitutionalism
Passage, Promulgation and Coming into Effect of the 2010
Constitution
The year 2010 will be remembered in Kenya for unprecedented
Constitutional developments with the potential to advance
effective governance, democratic development and
Constitutionalism. Many events were part of the wider reform
agenda, focusing mainly on institutional rebuilding.
* He is an Institutional Development, Management and Governance

consultant in Nairobi and a senior associate consultant for Projects and
Allied Consultants (PACL) and British Council Manchester (UK). He holds
a BA (Econ.) (Kenyatta University), an MBA (Strategic Management)
(University of Nairobi), and is a candidate for MSc. (Health Systems
Management).
29
The historic referendum of August 4, 2010 and the promulgation

of the Constitution of Kenya (2010) on August 27, 2010
were the key milestones seen as a clear statement of resolve
by Kenyans to reconstruct the state on sound democratic
principles. Regionally, the developments were considered a
signal that Kenya had come of age democratically. They were
also a vindication of the country’s democratic progress after
the near slide to anarchy during the 2007/2008 post-election
violence (Africa Press, 2010).
Constitutional debates dominated the national scene
during 2010, signifying the resolve by Kenyans to embark
on a new dispensation. Kenya’s independence Constitution
promulgated in 1963 was written and negotiated in Lancaster,
Britain, between 1960 and 1963 (Ogot and Ochieng, 1996).
Over time, this Constitution failed to meet the aspirations of
the Kenyans in facilitating necessary reforms to ensure that
their socio-economic, political and civil rights are respected
and protected. Kenyans understood that a new Constitutional
order was the surest way to guarantee a government limited
by law, and that state power is delineated, leaving little
room for personal discretion by wielders of political power.
Unchecked political power is arguably one of the major
reasons why autocratic governments emerge (Ongaro and
Ambani, 2008:25).
Good governance is a little more than sound fundamental
rules or regime structures that foster human development
in a polity. It is the entirety of shared values, policies, and
institutions, which facilitate proper management of political,
economic and social affairs from cooperation between the
state, private sector and the civil society (Dwivedi, 2002).
This is what informed the quest for a new Constitutional
dispensation, championed by reform-minded groups and
Constitutionalism in Kenya, 2010 31
individuals from these three sectors. Many initiatives

advanced in 2010 aimed at improving governance through
demanding greater respect and protection of fundamental
rights and freedoms, citizens’ participation, the rule of law,
and accountable leadership. Many of these initiatives were
addressed within the framework of Agenda Four (4) of the
Kenya National Dialogue and Reconciliation50 (KNDR), while
others were led by civil society groups as part of their role in
deepening democracy and good governance.
Generally, the 2010 Constitution signified a new dawn in
the push towards Constitutionalism. It introduced far-reaching
institutional changes aimed at entrenching democratic
governance, improving people’s participation in governance
and enhancing Constitutional protection of human rights,
whilst putting in place almost abuse-proof mechanisms for
Constitutional amendments. Some writers cautioned against
too much optimism, arguing that the popular approval of the
Constitution may not immediately and easily translate into
good governance, political stability and economic recovery
(Turianskyi and Petlane, 2010). Even though it is accepted that
progressive Constitutions contribute to good governance, the
entrenchment of the culture of Constitutionalism must form
the core of the Constitutional agenda, if the country is to have
a properly functioning polity. It has also been noted in caution
that the country ought to learn from other African states that
“have been very quick to churn-out impressive documents,
but with little meaning in the daily lives of ordinary man
“wananchi” (Hansungule, 2003).
Besides the preceding concerns, various reasons have
been advanced to justify the change of the Constitution. First,
50
Facilitated by former United Nations (UN) Secretary General Kofi Annan,
KNDR brought together the two political divides to resolve the obtaining
political crisis in the wake of the 2008 post-election violence in Kenya.
considering Kenya’s changing political environment, the

Independence Constitution seemed outdated and therefore
irrelevant. Secondly, just like the other British-tailored
Constitutions of the independence era, it was not meant to
advance democracy in the former colonies, but to safeguard
and guarantee the interests of the departing colonialists
(Hansungule, 2003). Finally, was the need to create a more
progressive human rights framework and to reflect the
various international human rights instruments that Kenya
has ratified or acceded to since independence as well as to
facilitate demands for good governance, particularly the fight
against corruption, and the enhancement of the rule of law.
The 2010 Constitution came into effect upon promulgation
by the president on August 27, 2010 following its acceptance
by 67% of voters.51 It is the final product that arose from
the revision of the Harmonised Draft Constitution of Kenya,
which had been released to the public on November 17,
2009, following 30 days of public debate and submission
of memoranda to the Committee of Experts (CoE). The draft
was subjected to further revisions and thereafter presented
to parliament for any final amendments that were deemed
necessary. It is worth noting that the document had faced
many hurdles in its final stages, including the use to question
its Constitutionality by the judiciary (Ariviza v. IIEC, 2010) as
aptly noted (Ongoya, 2010):
…When a historian with a genuine bias in favour of matters
relating to the Constitution will finally and incisively document,
in a sequential manner, the rowdy character of Kenya’s attempt
at the Constitution making process, the Kenyan judiciary may
51
It should be noted, however, that under paragraphs 2 and 3 of the
Sixth Schedule of the 2010 Constitution, certain sections of the former
Constitution still remain in force until after the 2012 general elections
when a new government comes into office, the creation of the respective
new Constitutional bodies and the enactment of the relevant enabling
legislations.
not be credited with bringing the sanity of law to the process.

To the contrary, the judiciary may be accused of having bent
backwards to provide a forum for the tramps in the theatre of
the absurd to trivialise the entire process.
Also worthy of note, were attempts by legislators to
significantly alter the Proposed Draft Constitution (as
published by the attorney general (AG) on May 6, 2010)
through 150 amendments proposed for debate in parliament,
although these attempts failed.
Despite these attempts, significant steps were taken to
commence the implementation of the Constitution in 2010,
despite concerns that the drafting of important bills was being
done without consultation of all stakeholders, particularly
the civil society and the public as envisaged under Articles
10, 118 and 232(1) of the Constitution. By the end of 2010,
the foundation had however been laid for the implementation
process with the setting up of the legal and institutional
framework for the Constitutional implementation. Several
bodies in charge of implementation were constituted, notably
the Commission for the Implementation of the Constitution
(CIC), which draws its mandate from Paragraph 5 of the 6th
Schedule. It was put in place through the Commission of the
Implementation of Constitution Act, 2010, which outlines
its functions as monitoring, facilitation and overseeing the
development of legislation and administrative procedures
to implement the Constitution, coordinating with the AG
and the Kenya Law Reform Commission (KLRC), in tabling
bills, working with Constitutional commissions to ensure
there is respect of the letter and spirit of the Constitution
and reporting regularly to the Parliamentary Constitution
Implementation Oversight Committee (CIOC) on the progress
of implementation and any impediments met (Thuita, 2010).
The CIOC was also constituted with the task of keeping

track of and overseeing all Constitutional implementation
efforts in line with Paragraph 4 of the 6th Schedule. CIOC
was meant to ensure timely introduction and passage of
all required legislations. Even though not a Constitutional
requirement, a cabinet sub-committee on the Implementation
of the Constitution was also set up to ensure final approval
and publication of draft bills before they are tabled in
parliament.
Notably, the Judicial Service Act, 2010, was passed in 2010,
leading to the formation of the Judicial Service Commission
(JSC). The importance of the JSC could be discerned from its
mandate under Article 172 of the 2010 Constitution, which is
to “promote and facilitate the independence and accountability
of the judiciary and the efficient, effective and transparent
administration of justice.” The stringent conditions and
standards set for the Constitution of the JSC and the subsequent
process of appointments to the bench were informed by the
fact that in the past, judicial independence and accountability
were negatively impacted by the politicisation of the judicial
appointment process and constant allegations of favouritism,
nepotism and cronyism (Kwengu, 2010). In this regard, the
2010 Constitution provides clear, predictable and transparent
appointment criterion largely free of political interference with
the powers and independence of the JSC secured, the judicial
security of tenure enhanced and the financial autonomy of
the judiciary improved through creation of the judiciary fund,
from which all judicial expenditures will be paid as a direct
charge on the consolidated fund (Article 173).
Below is a consideration of the key features of the 2010
Constitution, which have immense potential to enhance
Constitutionalism in Kenya.
Key Features of the 2010 Constitution

Constitutional Protection of Rights under an Enhanced Bill of
Rights
The Constitution alters the rights’ landscape by identifying
and enshrining social, economic, and cultural rights (Bill of
Rights, Chapter 4), hence fully abiding by the principle of the
indivisibility of rights, a clear departure from the previous
Constitution which only recognised political and civil rights.
Furthermore, it places a duty on the state to allocate resources
towards the progressive realisation of the rights enshrined in
the Bill of Rights. In addition, it provides under Article 20(5)
that where the state claims that it does not have the resources
to implement any given right, the court dealing with that
matter shall be guided by the principle, inter alia, that it is
the responsibility of the state to show that the resources are
not available. This is expected to fundamentally affect public
spending as well as the formulation of fiscal policies.
Furthermore, to facilitate the realisation of the enshrined
rights, every Kenyan citizen, either in their own individual
capacity, or on behalf of others who cannot sue in their own
name such as minors, or in the public interest or acting as a
member of or in the interest of a group or class of persons, has
the right to petition the High Court for the recognition and
enforcement of rights. The aforementioned right is enhanced
further by, among others, the provisions that such petitions
should be instituted without filing fees and that they should
not be encumbered by technicalities (Article 22). Other notable
provisions on the enforcement of the Bill of Rights include the
provision under Article 23(3) of the appropriate reliefs that a
court may grant in proceedings brought on grounds of violation,
infringement or threatening of fundamental liberties. These
reliefs include declaration of rights, injunction, conservatory
orders, declaration of invalidity of any law that denies,

violates, infringes or threatens a fundamental freedom which
is not justified under Article 24, an order for compensation and
an order of judicial review (Article 23). In a major departure
from the now repealed independence Constitution, the 2010
Constitution empowers subordinate courts to have original
jurisdiction in appropriate cases to hear and determine
application for redress of a denial, violation or infringement
of, or threat to, a right or fundamental freedom in the Bill
of Rights. Proper application of these provisions will ensure
efficient determination of cases by avoiding lengthy delays
that have been witnessed in the past, occasioned by the fact
that where a litigant alleged violation of his/her rights, the
subordinate court handling the matter had to suspend the
case and refer the matter to the High Court, which hitherto
had the sole jurisdiction of dealing with Constitutional
matters, including those dealing with the violation of the Bill
of Rights.
The express stipulation that certain rights in the Constitution
cannot be limited is another remarkable provision. These are
freedom from slavery or servitude, the right to a fair trial
and the right to an order of habeas corpus and freedom from
torture, cruel, inhuman or degrading treatment or punishment
(Article 25). This is informed by Kenya’s history of abuse of
human rights, where persons, deemed critical of the then
regimes went through horrific experiences of torture and other
forms of inhuman and degrading treatment by state security
agents and were detained for long periods without trial.
The Constitution makes provisions on instances in which
limitations of rights and fundamental freedoms are permitted
expressly, stipulating that no right or fundamental freedom
shall be limited, except by law, and then only to the extent
that the limitation is reasonable and justifiable in an open

and democratic society based on human dignity, equality and
freedom and in any case, providing that any provision in any
legislation that seeks to so limit human rights and freedoms
has to be:
… Clear and specific about the right or freedom to be limited
and the nature and extent of the limitation … and … shall not
limit the right or fundamental freedom so far as to derogate
from its core or essential content. (Constitution of Kenya,
Article 24(2))
In addition, converting the country from a dualist State into
a monist one is another novelty in the 2010 Constitution.
General rules of international law are recognised as forming
part of the laws of Kenya, the same being the case for any
Treaty or convention ratified by the state. Under Article 2 (5),
it is stipulated that the general rules of international law shall
form part of the law of Kenya while Article 2(6) provides that
“any Treaty or convention ratified by Kenya shall form part of
the law of Kenya under this Constitution.”
Comparatively, the previous dispensation required the
enactment of local legislation to domesticate any international
instrument. In addition, to ensure strict enforcement of the Bill
of Rights, the 2010 Constitution provides for the creation of a
unified body for the protection of human rights referred to as
the Kenya National Human Rights and Equality Commission
(KNHREC), combining the duties and powers held by two
commissions, namely, the Kenya National Commission on
Human Rights (KNCHR) and the National Commission on
Gender and Development (NCGD). KNHREC has expanded
powers under the new Constitution and in particular is
empowered to investigate and summon persons suspected of
human rights abuses within the government and the public.
Other notable gains include provisions that seek to protect

and promote the rights of minority groups and/or marginalised
sections of the Kenyan society. For instance, women’s rights
are greatly protected under the Constitution with the most
remarkable being the requirement that representation in all
public elective bodies meet a gender equity criteria of at
least a third of either gender (Article 81(b)). With regard to
persons with disabilities, the Constitution requires that the
state progressively ensures that at least 5% of all persons
serving in public elective or appointive bodies are persons
with disabilities (Article 54). The Article also enshrines the
entitlement of persons with disabilities to; inter alia, reasonable
access to all places, public transport and information and to
“access materials and devices to overcome constraints arising
from the person’s disability.”
Articulation of National Values and Principles
In a remarkable shift from the previous order, the 2010
Constitution prescribes and articulates national values and
principles of governance under Chapter 2 (Article 10). These
values include the rule of law, democracy, patriotism, human
rights, sharing and devolution of power, national unity,
integrity, transparency, social justice, non-discrimination
and the protection of the marginalised, good governance and
sustainable development. Under Chapter 6, the Constitution
provides leadership principles that all holders of public
positions must abide by, including the requirement that
in using such power to serve the people, its exercise must
demonstrate respect for the people and decisions by such
holders must be made impartially and objectively.
By the end of 2010, provisions on integrity and ethics
had seen some positive developments in the fight against
corruption in the country. For instance, in October, the
country witnessed the suspension of several public officers

on allegations of impropriety. The Nairobi city mayor was
charged with conspiracy to defraud the public and wilfully
neglecting to perform his official duties under the Anti-
Corruption and Economic Crimes Act. He was subsequently
suspended from office. The matter in question was a two
hundred and eighty-three Kenya shillings (Kshs 283 million)
cemetery land scandal (Leftie and Waithaka, 2010).
Right to Citizenship
The Constitution also recognises dual citizenship for citizens
by birth. This has given relief for the many Kenyans working
and living in the diaspora, who have previously had to revoke
their Kenyan citizenship when taking up citizenship in other
countries. It will also be beneficial to some ethnic groups in
Kenya such as the Maasai, who live across the Kenyan and
Tanzania boundaries because they will retain their kinship
ties across the borders, where such neighbouring countries
do recognise dual citizenship. In addition, Kenyan mothers
married to non-Kenyans have the right to confer citizenship
to their children, unlike in the past when only Kenyan men
enjoyed this right. Further, a person (man or woman) married
to a Kenyan citizen for a period of at least seven years is
entitled to registration as a Kenyan citizen on application.
Under the previous dispensation, only women married to
Kenyan citizens were entitled to this right.
Right of Access to Information
Under Article 35 of the new Constitution, the citizenry has the
right of access to information, including an obligation on the
state under Article 35(3) to publicise any information affecting
the nation. However, it is worth noting that the country is yet
to have a specific law on the right to information. Various
attempts made so far to enact a Freedom of Information Act

have failed (ICJ, 2010). One of the challenges to realising the
right to information is the fact that laws that inhibit access
to public information remain in the statute books. These
include the Official Secrets Act, the Evidence Act, the Penal
Code, the Preservation of Public Security Act, the National
Assembly (Powers and Privileges) Act and the National
Security Intelligence Service Act, among others. Enactment
of the Freedom of Information Act will enable the realisation
of the right to access to information, while also providing
reasonable grounds on which access to information can be
denied to the public, particularly with regard to national
security concerns.
Governance and Devolution
A significant change in the country’s governance is the
introduction of a devolved system of governance (Chapter
11) through 47 counties. Counties have relative financial,
legislative and administrative independence, but retain some
degree of reliance on the national government. Under Article
203(2), the counties are entitled to not less than 15% of the
annual revenue collected by the government. Various sources
have begun to analyse the revenue base for the counties and
the development potential thereof (Gikonyo, 2010).
Separation of Powers
The Constitution entrenches separation of powers between
the different arms of government. For example, it reduces
the powers of the president in regard to the appointment
of persons to Constitutional and other public offices.
Henceforth, nearly all appointments made by the president
will require parliamentary approval. In addition, to reduce
the politicisation of the public service, cabinet ministers (now
to be referred to as cabinet secretaries), will be appointed from

outside parliament and in case a member of parliament (MP)
is appointed as a cabinet secretary, he/she will have to resign
his/her parliamentary seat (Article 152(3)). The Constitution
removes presidential control of the institution of parliament.
Under Article 102(1), the term of each House of Parliament
shall expire on the date of the next general elections, although
the electorate, under Article 104, have the right to recall MPs
before the end of the term of the relevant House of Parliament.
However, this will be governed by an Act of Parliament. It is
noteworthy that this is another reflection of the enshrining of
the primordial power of the people as articulated by retired
Justice Aaron G. Ringera in the Njoya v. Attorney General Case
(2004).52
Land Rights
Article 65 of the Constitution offers clear guarantees of the right
of every citizen to acquire and own land. It also subjects non-
citizens limitations on landholding who now shall hold land
on the basis of leasehold tenure and to a maximum leasehold
term of ninety-nine (99) years. The same Article provides that
such benefits shall not accrue to illegally acquired land and/
or property. Therefore, the whole of Chapter 5 on land and
environment should be read within the context of Article
4053 (Monari, 2010). All in all, Chapter Five is fundamental in
protection of land rights, and more importantly, dealing with
illegal incisions and acquisitions sanctioned by the state as
witnessed in the reign of the successive first two presidencies
in the country.
52
Widely criticised by many scholars, with the late Prof. Okoth Ogendo,
describing it as, “an amazing piece of political correctness that blazes no
trail in jurisprudence.”
53
This is one of the clauses that cannot be amended without a referendum.
Post-Promulgation Constitutional Case Law

Following the coming into force of the Constitution, the Kenyan
judiciary displayed willingness to protect the fundamental
liberties enshrined in the Constitution. This may illustrate
a genuine desire by this arm of the government to embrace
change under the new dispensation, or to correct its otherwise
tainted public record characterised by failure to discharge
its mandate. A further source of motivation could have been
the expected vetting of judges and magistrates as required by
the transitional clauses of the new Constitution. Indeed, the
KNCHR (2010) in its assessment of the implementation of the
Constitution noted:
“…the judiciary, whose role is to uphold the Constitution
through interpretation, has so far passed the test in three major
cases challenging various provisions. It has shown willingness
to protect the rights of Kenyans including condemning other
branches of government that infringe upon those rights.”
This could have been further facilitated by the fact that in the
post-promulgation period, many Kenyans sought relief from
the courts in protecting their liberties. Some of the cases are
reviewed herein below.
Right to life
In May 2010, the government had outrightly rejected a UN
proposal to abolish the death penalty allegedly on the grounds
that the public had vetoed abolishment efforts (Daily Nation,
May 11, 2010). Earlier, the Court of Appeal made a precedent-
setting declaration that the mandatory death sentence for
murder contained in Section 204 of the Penal Code was
unconstitutional and contrary to Constitutional protection
against inhuman treatment (Mutiso v. Republic, 2008). In the
case, the appellant, Godfrey Ngotho Mutiso, referring to the
Independence Constitution had argued that the execution of a

mandatory death sentence would:
• Amount to inhuman and degrading punishment in breach
of Section 74 (1) of the Constitution of the Republic of
Kenya;
• Be an arbitrary deprivation of life in breach of Section 71
(1) and 70 (a) of the Constitution of the Republic of Kenya,
and;
• Be denial of his right to fair trial in breach of Section 77 of
the Constitution of the Republic of Kenya.
Even though the decision of the Court of Appeal on this matter
was precedent-setting, its possible effect was somewhat
undermined by the further declaration by the judges that the
death penalty remains lawful until such a time when Kenyans
decide to do away with it. Indeed, Kenya has chosen to keep
the death penalty in the law books and has not signed the
Second Optional Protocol to ICCPR.
Right to Vote for Prisoners
In yet another milestone, the Kenyan judiciary made a
landmark ruling which gave persons held in Kenya’s penal
institutions the right to vote in the Constitutional referendum
held in August 2010. The case (Kanyua v. Attorney General,
2010) was filed by Kituo cha Sheria, a local NGO, on behalf of
inmates incarcerated at Shimo la Tewa Prison. This followed
the failure by the Interim Independent Electoral Commission
(IIEC) to act upon a petition by the organisation demanding
that prisoners be registered as voters. In the case before the
court, it was sought, inter alia, that “the Court makes a finding
that Section 43 of the former Constitution of Kenya does not
exclude prisoners from voting in a referendum, but only
explicitly provides for their exclusion in voting in presidential
and National Assembly Elections. Therefore, IIEC’s exclusion
of prisoners from its voter registration exercise was illegal given

their mandate under Section 41A (d) of the said Constitution.”
In addition, the petition sought to have a declaration by the
court that prisoners were eligible to vote and participate in
the referendum process and subsequently instruct the IIEC to
make a public announcement that prisoners could participate
in the referendum and make logistical arrangements to
ensure that all eligible prisoners are registered and vote at the
referendum.
A preliminary issue was raised on this matter seeking to
have the petition thrown out on the basis that Kituo Cha
Sheria had no locus standi in the matter. However, the court
relying on precedents, both local and international, and also
with reference to developments in international human rights
law, applied the principle of “sufficient interest” to hold that
the petitioner could indeed petition that court on behalf of the
prisoners noting that:
… many people. Whose fundamental rights are violated may
not actually be in a position to approach the Court for relief,
for instance, because they are unsophisticated and indigent,
which in effect means that they are incapable of enforcing
their fundamental rights which then remain merely on paper.
Bearing this in mind, where large numbers of persons are
affected in this way, there is merit in one person or organisation
being able to approach the Court on behalf of all those persons
whose rights are allegedly infringed. (Kanyua v. Attorney
General, 2010: 12)
In its final ruling, court held that the then Constitution of Kenya
did not disqualify inmates from voting in a referendum and
in particular, that Section 43(2), as applied to Section 47(A),
did not prevent inmates over 18 years of age, of sound mind
and who had not committed electoral offences, from voting in
a referendum. It further granted all the orders of the petition
as prayed, specifically on voting in the referendum and not
in elections. Article 51 of the 2010 Constitution confirms

that a person who is imprisoned retains his/her fundamental
rights and freedoms under the bill of rights, including voting,
except where these are incompatible with the fact that one is
in prison or if one has been convicted of an electoral offence.
Freedom from Torture and Other Forms of Inhuman and
Degrading Treatment
In 2010, the judiciary made a landmark decision on cases
of persons subjected to torture and other forms of inhuman
and degrading treatment during President Daniel Arap Moi’s
regime. In a case filed by 21 persons individually, under Section
84 of the previous Constitution, a declaration was sought
that the plaintiffs’ fundamental rights and freedoms, under
the then Constitution, had been grossly violated by police
officers and other government agents on d a t e s which were
specified in each c a s e , and diverse dates thereafter (Wakaba v.
Attorney General, 2010). A further declaration was sought that
the plaintiffs were entitled to the payment of damages and
compensation for the violations and contraventions of their
fundamental rights and freedoms under the Constitution. The
plaintiffs alleged that they were arrested, tortured and held
incommunicado for extended periods without being charged
in court. For those who were charged, some were charged with
treason, pleaded guilty under duress and were subsequently
imprisoned. Others pleaded not guilty and were remanded
in custody, where the inhuman and degrading treatment
continued. Several of the plaintiffs were released after more
than two years in custody when the attorney general entered
nolle prosequi in their cases. As a result of the incarceration,
the plaintiffs complained of having suffered physical and
psychological torture as well as material loss and damage.
In rendering its decision, court made reference to the

UN Convention against Torture, and other Cruel, Inhuman
and Degrading Treatment or Punishment, being a legal
international instrument ratified by Kenya, and adopted
its definition of ‘torture’ in interpreting Section 74(1) of the
repealed Constitution. The court took the view that in exercise
of its jurisdiction under Section 84 of the former Constitution
to provide redress for violation of fundamental rights and
freedoms, it had the powers to award damages to an individual
whose fundamental rights and freedoms had been violated,
although noting that in such instances, it may not be possible
to value or measure in monetary terms what an individual
has undergone i n s u c h i n s t a n c e s . Indeed, court observed
that an award of damages merely serves to vindicate and
restore his/her dignity and also sends a clear message to the
executive that it will be held responsible for acts of impunity
committed by its servants or agents. The court found it fit to
make a global award in respect of the violations, taking into
account the element of punitive damages. It awarded between
Kshs1.5 and 3 million for each of the 21 plaintiffs (Weiheriere
v. Attorney General, 2010). With the progressive provisions
on the protection of fundamental liberties under the 2010
Constitution, such violations of human rights are expected
to be significantly reduced. And where any violations are
perpetrated on any Kenyans, the courts are expected to make
use of the wide array of reliefs allowed under the Constitution
in redress.
Freedom from Discrimination
The 2010 Constitution protects all Kenyans from discrimination
on the basis of race, sex, pregnancy, marital status, health
status, ethnic or social origin, colour, age, disability, religion,
conscience, belief, culture, dress, language or birth (Article
27). In light of this provision, a case was brought to the High

Court seeking judicial interpretation, arguing that the military
failed to comply with the Constitution in the recruitment
exercise advertised on September 14, 2010 by failing to
recruit pregnant women. The said advertisement had listed
the conditions for recruitment, including height, weight,
medical fitness, and age, adding that any prospective women
candidates should not be pregnant. In the case filed by Kerose
Ondieki at the High Court in Kisii, the applicant challenged
the set conditions as being in violation of more than nine
articles of the Constitution (Thuku, 2010). In reply by way of
preliminary objection, the state was of the view that the set
conditions were necessary as the recruits would be subjected
to vigorous physical examinations and tests, which they were
required to undergo without suffering injuries to their health
as this would contravene the Constitutional protection of the
right to life. The state argued that the defence forces’ mandate
under Article 241(3) of the Constitution necessitated it to be
manned by persons with the requisite capacity and strength.
The state also sought to have the application dismissed on the
grounds that the applicant lacked the requisite legal standing
as he had failed to demonstrate his personal interest in the
recruitment and also was not amongst the category of persons
who could file such cases. Other arguments advanced on
behalf of the state were that the applicant had not disclosed
any expectant woman whose rights had been, or were about
to be violated by the recruitment and had not demonstrated
any public interest that had prompted his action. Besides, the
state argued, if the candidate was a pregnant woman, the right
of the unborn child had to be considered as it was protected
under Article 26 of the Constitution.
In its ruling, court through Justice Daniel Musinga

upheld the petitioner’s argument that under Article 22 of the
Constitution, by virtue of being a Kenyan he had the legal
authority to institute the proceedings and, hence did not have
to show any personal interest in the matter averring that:
As long as a person can demonstrate that a fundamental
freedom in the Bill of Rights had been denied, violated or
infringed or is threatened, he meets the minimum threshold
under the law and therefore has locus standi.
However, court held that the conditions set by the military,
although likely to lock out several young men and women,
were not discriminatory as the work of the military was no
“ordinary civil enjoyment” and, hence the conditions were
solely geared to get persons suitably qualified for the work.
Remarkably, court though finding the application with
no merit, declined to order the petitioner to pay costs in
recognition of the weighty issues canvassed in the matter. The
case served to open the door to a hitherto secluded section of
the Kenyan society, the military, and, hence allowing Kenyans
to question its operations.
Right of a Person on Arrest
Despite the promulgation of the 2010 Constitution, instances
were recorded in which the state contravened some of its
provisions. An example was the extradition of at least eight
Kenyans to Uganda on charges of alleged involvement in the
July 11, 2010 Kampala bombings. These actions did not adhere
to the Constitution as well as the Extradition (Commonwealth
countries) Act, and the Kenya National Commission on Human
Rights Act, 2002. The spouse of one of extradited Kenyans
made a habeas corpus application at the High Court. In the
case before Justice Aggrey Muchelule, the argument by the
state was:
It was impossible for the Commissioner of Police to produce

the body of the subject who has left jurisdiction therefore the
return was sufficient and the application must be left to rest
as it had been overtaken by events (Kana v. Attorney General,
2010).
Ordinarily, and on the basis of previous judicial precedents,
the court would simply have accepted that the return was
sufficient and since the body was outside the jurisdiction,
the matter should be left to lie. The judge nevertheless went
ahead and pronounced on the legality of the arrest, detention
and removal of the subject to Uganda. He found “the return”
wanting and stated:
… I find that no exceptional circumstances, whether state of
war or terrorist actions, can be invoked to justify the treatment
handed down to the subject herein by the respondents. I find
the return made by Inspector Ogeto was not sufficient and that
the arrest, detention and removal of the subject from Kenya to
Uganda were illegal and transgressed his fundamental rights
and liberties. These rights and liberties cannot be given up
for expedience’s sake. Since the subject is out of jurisdiction,
however, I make no further orders.
Legislative Developments in 2010 Expected to Influence

Growth of Constitutionalism
Kadhi Courts and the Constitution
Other key court decisions made during 2010 include: the
ruling on the Constitutionality of the inclusion of Kadhi
courts in the Constitution with the holding that the extension
of Kadhi courts beyond the former protectorate areas was
unconstitutional and also that “any form of religious courts
should not form part of the judiciary under the Constitution
as it offends the doctrine of separation of State and religion.”
(Jesse Kamau v. Attorney General, 2010); a Constitutional
case on the question of whether persons charged with
capital offences are entitled to bond or bail, just like the
other offences with the petitioners in this case who had

been arraigned in court on charges of murder seeking to be
released on bail or bond, pending determination of their
case in line with Article 49(2) of the Constitution (Republic
v. Mgunya, 2010). The foregoing case saw the High Court
make a landmark ruling that under the new Constitutional
dispensation, persons charged with a capital offence are not
precluded from obtaining bail and subsequently, granting bail
to the two petitioners. In another landmark case (Mbugua v.
Republic, 2010), the Court of Appeal settled a long-standing
gray area in Kenyan jurisprudence by ruling that where the
right of an arrested person to be brought into court within a
reasonable time was violated, this amounted to a breach of a
civil right (but which though Constitutional in nature, was
not criminal trial-related, was beyond the statutory duty of a
criminal court and, hence did not render the subsequent trial
a nullity), but was compensable by damages or by a habeas
corpus application.
Persons with Disabilities (Amendment) Bill 2010
This Bill sought to amend the Persons with Disabilities Act,
2003, so as to have persons with albinism recognised among
the categories of persons identified as disadvantaged under
the said Act. It also sought to include a person with albinism
as a member of the National Development Fund for Persons
with Disabilities, a fund specifically established for the benefit
of persons with disabilities. The amendment came at an
opportune moment when persons with albinism were being
exposed to increased risk to their personal safety not just in
Kenya, but throughout East Africa, with many documented
killings of persons with albinism in the region (New York
Times, 2010).
The Indemnity Repeal Bill 2010

This Bill sought to repeal the Indemnity Act (Cap 44). The
Indemnity Act which commenced operation in 1970 was
specifically enacted to indemnify against legal proceedings
with respect to acts committed by public officers or by
members of the armed forces or persons acting under their
authority within the North-Eastern province and Isiolo,
Marsabit, Tana River and Lamu districts between December
25, 1963 and December 1, 1967. One of its key provisions is
to be found under Section 3 which provides that:
…No proceeding or claim to compensation or indemnity shall
be instituted or made in or entertained by any court or by any
authority or tribunal established by or under any law for or on
account of or in respect of any act, matter or thing done within
or in respect of the prescribed area after the 25th December
1963 and before 1st December 1967.
The aforementioned provision had made it impossible for
Kenyans, whose rights were infringed upon by members of the
country’s armed forces in the operations to quash the Shifta
(the now defunct local ragtag army which operated in the area)
elements, to seek redress from courts. It also made it impossible
for the Truth, Justice and Reconciliation Commission (TJRC)
to extend its activities to atrocities committed in the region
during the aforementioned time. Even though parliament
passed the bill, the president refused to assent to it, raising
questions about the government’s commitment to redress past
injustices.
Witness Protection (Amendment) Act 2010
This law amended Section 3 and other related sections of
the Witness Protection Act, 2006, to establish the Witness
Protection Agency. The agency is tasked with establishing and
running a Witness Protection Programme with the purpose
of ensuring special protection for people possessing crucial
information, but who face risk and intimidation on account

of cooperating with the prosecution and other security agents.
The amendments also provided a fine of up to Kshs 1m or a
sentence of up to five years for any person deemed to interfere
with the work of the officers of the agency (Wambisi, 2010).
The agency is also empowered to procure, store and make use
of firearms and ammunition and other related equipment in
fulfilment of its mandate. Furthermore, the agency is made
more autonomous and independent as it does not operate
under the AG’s office. It also draws its funding from the
Consolidated Fund.
The Act further gave the agency the mandate to run a
Witness Compensation Fund, whose proceeds are to be used
to pay restitution to a victim or to the family of a victim of a
crime committed by any person during a period when such a
person is provided protection under the Act or to the family
for the compensation for the death of a victim of a crime
committed by any person during a period when such a person
is provided protection under the Act. The Act also established
the Witness Protection Appeals Tribunal, whose role is to
review and determine grievances by persons not satisfied
with the decisions of the agency relating to admissions or
terminations of placements into the programme. The setting
up of the Witness Protection Agency was regarded important
as the country prepared itself for the commencement of
prosecution of suspects of the 2008 post-election violence
under the International Criminal Court (ICC) and possibly,
under a local tribunal.
The amendments, however, fell short of expectations. For
instance, though the amended Act broadened the definition
of a ‘witness’ to include a person who requires protection
from a threat or risk that exists on account of being a crucial
witness, it did not envisage the protection of ‘defence

witnesses’ who may be at risk. The Act left much discretion to
the director of the agency in determining witnesses to join the
programme, hence creating room for abuse. In addition, given
the sensitivity of the matters it sought to deal with, the large
size of its board54 is likely to compromise the security of the
protected witnesses. The inclusion of the commissioners of
police and prisons, both of whom head agencies which have
previously been accused of violations of rights, also raised
questions on the security of witnesses under the programme
(ICJ, 2010).
Kenya Communications (Broadcasting) Regulations
Intense debate on these regulations took place at the
beginning of 2010. Perhaps to signal the intention of the state
to fully utilise these controversial regulations, the permanent
secretary of the Ministry of Information and Communication
sent a warning to media houses to prepare themselves for
the possible negative impacts of the implementation of the
regulations, including the possibility of closure of those that
would not adhere to the regulations (Daily Nation, January
2010). On January 8, the controversial media law, which
had already caused acrimony between the media and the
government, was gazetted. The media, on the one hand had
been advocating for self-regulation, while the government
had been pushing for stringent media laws that would
check on hate speech, incitement to violence, and use of
offensive language, among other provisions (Ogosia, 2010: 2).
Whereas the media houses were not wholly opposed to the
regulations, a key point of departure for the media houses was
54
The Board established under Article 3P(2) has nine members, including
three ministers, director NSIS, the commissioners of police and prisons,
director of public prosecutions, chair KNCHR and the director of the
Witness Protection Agency as the board secretary.
the implementer (regulator). The government was on record

committing to further discussions with the stakeholders on
the controversial clauses (Menya, 2010).
Other Developments During 2010

Task Forces on Judicial and Police Reform
The early parts of the year saw developments aimed at reforming
key institutions important in entrenchment of the rule of law
and realisation of human rights. Major proposals made by the
national task forces on the judicial and police reforms55 aimed
at enhancing the independence of these institutions and
safeguarding human rights. Although the recommendations
of the task forces were not fully implemented, the 2010
Constitution gave some of the key recommendations life. For
example, the appointment of judges in the past was mainly the
preserve of the executive through the president. The taskforce
on judicial reforms had criticised this process of identifying
candidates for appointment into the judiciary for lack of
transparency and for not being based on any publicly known
or measurable criteria as well as being uncompetitive (Report
of Task Force on Judicial reforms:32). As stated earlier, the
2010 Constitution has sought to address this shortcoming by
providing that the president will appoint the chief justice and
the judges of the superior courts, under the recommendations
of the Judicial Service Commission (JSC) and the approval of
the National Assembly (Article 166). The powers to dismiss
judges would be vested in the JSC whose membership and
55
The National Taskforce on Police Reforms was appointed by
President Mwai Kibaki vide Gazette Notice No. 4790 with the
mandate to examine the existing policy, institutional, legislative,
administrative and operational structures, systems and strategies of
the Kenya Police Force (KPF) with a view to making comprehensive
recommendations on how to reform the KPF.
process of appointment would be open and transparent

(Article 168). Transparency and accountability will be at two
levels: those nominated by various stakeholders to sit on the
commission would be vetted by parliament in keeping with
Chapter Six of the Constitution, while all the appointments to
the bench would be vetted by the commission, which will be
chaired by the chief justice. Besides hiring and firing judges
and magistrates, the commission under the Constitution has
the task of setting out the conditions of service of judicial
officers as well as ensuring that the judiciary is independent
and accountable.
Elections and Election Petitions
Open elections are an important element of good governance.
Their shortcomings notwithstanding, elections are the single
most important instrument of democracy, which allow
people to freely elect their leaders as a way of influencing
policy-making (Powell, 2000: 4). Elections are also critical as
instruments of control and enforcing accountability. Kenyan
elections in the past have been found wanting, with widespread
accusations of voter manipulation, electoral violence and
other malpractices. That this had become a common practice
could be blamed squarely on the rising perception that there
was no recourse. Disillusionment with the judicial system as
an arbiter of electoral disputes was one of the main reasons
given for protests and violence after the 2007 general elections
(Kwaja, 2009).
As part of enhancing access to justice and dealing
with impunity, the AG directed the courts to expedite
the determination of election petitions. Many petitions
were heard and determined within a relatively short time
compared to past trends. In the past, electoral petitions,
filed to challenge electoral malpractices, took years to be
heard and concluded and the outcome was almost always in

favour of the incumbents. For example, by the 2007 general
elections, there were 10 unresolved election petitions from
the 2002 elections. In total, six of the eight affected MPs in
the Tenth Parliament lost their seats in the year.56 This has,
however, changed with the current positive developments in
the hearing and determination of electoral petitions filed after
the 2007 elections. In February, Hon. Chirau Ali Mwakwere,
then a minister in the coalition government, became the
first MP in the year to lose his parliamentary seat through
an election petition. The Constitution has now entrenched
deadlines within which electoral petitions must be heard and
determined. This will go a long way in addressing one of the
main causes of the post-election violence since Kenyans will
now have faith in the courts to resolve their grievances (IREC,
Article 87 and Article 140).
The Constitution has also dealt with the problem of
electoral boundaries and inequitable representation to ensure
more effective representation. In the new order, the first-
past-the-post (FPTP) system in the presidential elections was
abolished to ensure that the country’s chief executive enjoys
popular mandate. A predictable formula has been provided
for delineation of boundaries of electoral units.
Economic Governance
Corruption in Kenya long reached such epidemic proportions
that it was construed as a normal way of life and a means of
accumulating wealth and power. Corruption is arguably one
of the most significant contributors to the underperformance
56
They include: Matuga MP Ali Chirau Mwakwere, Margaret Wanjiru of
Starehe, Makadara’s Dick Wathika, George Thuo of Juja, Abdirahman
Ali Hassan of Wajir South, and Ngata Kariuki of Kirinyaga Central. Hon.
Mwakwere and Hon. Wanjiru managed to recapture their seats in by-
elections.
of the economy, abject poverty and unemployment, making

it the greatest obstacle to economic and social advancement.
This can be attributed to several factors such as lack of political
will to prosecute senior government officials and politicians
involved in corrupt practices. Wielders of power have been
perceived to shield political allies accused of corruption
(Knaup, 2010).
Anti-corruption was a key theme in the 2002 National
Raibouw Coalition (NARC) election campaigns. In 2003 and
2004, several laws, aimed at curbing corruption, were enacted.
These include the Anti-Corruption and Economic Crimes Act,
the Public Officer Ethics Act and the Public Procurement and
Disposal of Assets Act. The Anti-Corruption and Economic
Crimes Act established the Kenya Anti-Corruption Commission
(KACC). There was change of leadership at KACC during
the year, after the nomination of the former director, seen as
ineffective in fighting corruption, was rejected by parliament.
The incumbent director took over after a protracted vetting
process and inherited some of the perennial corruption
cases that have proved difficult to solve. They include
Anglo-leasing,57 Goldenberg,58 the maize scandal,59 and the
57
This was a scheme hatched by highly placed people to loot millions of
euros from the government through fraudulent and highly exaggerated
contracts signed with a British firm, Anglo Leasing Finance to supply a
passport printing system.
58
Hatched and executed in the 1990s, this scandal involved payment of
export subsidies in the tune of millions of shillings to a company called
Goldenberg International for non-existent gold at a cost far beyond what
was legally allowed. For more on the scandal, see, Joshua Kivuva and
Morris Odhiambo, eds., Integrity in Kenya’s Public Service: Illustrations
from Goldenberg and Anglo-Leasing Scandals, CLARIPRESS, 2010.
59
This came to light in January 2009 after some individuals were either
irregularly allocated maize from the national strategic food reserve or
licensed to import additional maize from the world market after the
government announced a shortage of food that was being experienced at
the time. None of the individuals have been charged in court.
petroleum/Triton scandal.60 Also, during the period under

review, the activities of parliamentary committees led to the
“stepping aside” of ministers such as the minister for foreign
affairs.61 The active involvement of parliament in exposing
corrupt practices among ministers shows that even with
the lack of political will in the executive to fight corruption,
political realities are shifting fast in favour of a more effective
anti-corruption regime. Similarly, several other state officers,
including permanent secretaries, were suspended from duty
or voluntarily “stepped aside” so as to be investigated over
corruption allegations. Among these were the managing
director of the National Cereals and Produce Board (NCPB),
sales and marketing manager, and general manager of the
board, among others (Agina, 2010; and Ochami, 2010).
Economic governance that skewed distribution of national
resources in favour of certain regions is another challenge. This
has been associated with feelings of extreme marginalisation
due to high levels of poverty in certain regions in Kenya.
Efforts at decentralisation of resource allocation through, for
example, the Constituency Development Fund (CDF), Local
Authority Transfer Fund (LATF) etc62 have been fraught with
challenges. These efforts were never accompanied by real
devolution of governance structures to lower level to enhance
citizens’ participation. The 2010 Constitution has provided
for devolved governance to the county level and established
60
The scandal took place in 2008 when Triton Oil Company was allowed
by the state-owned Kenya Pipeline Company to withdraw oil amounting
to $98.7m which it was unable to pay for shortly thereafter.
61
The minister for foreign affairs, for instance, had to relinquish his cabinet
position after investigations proved right corruption allegations involving
embassy property in Japan and elsewhere.
62
In Kenya, the devolved funds include: The Constituency Development
Fund (CDF), Local Authority Transfer Fund (LATF), the Bursary Fund, the
HIV and AIDs Fund, the Roads Maintenance Levy Fund and the Youth
Enterprise Fund, among others.
the Commission on Revenue Allocation whose function is

to recommend to parliament the bases and mechanisms for
equitable sharing of government revenue between the national
and county governments.
Human Rights and the Rule of Law
For many years, state agents were accused of involvement
in human rights violation. Arbitrary arrests and detention
without trial, ethnic cleansing through politically motivated
ethnic conflict, euphemistically named land clashes,
extrajudicial killings, massacres, and torture, were some of the
acts committed over the years. Most of these were directly or
indirectly attributable to a Constitutional and political order
that concentrated power in the presidency and emasculated
other arms of government and civil society. This bred the
culture of impunity that has prevailed in the country for
many years. During the year 2010, the issue of extrajudicial
killings was of particular concern. In Nairobi, for example, in
March, the police were reported to have killed seven unarmed
taxi drivers as they went about their business in Kawangware
area. (Wabala and Waithaka, 2010:1).
With the commencement of TJRC’s work, the debate on the
Wagalla Massacre that took place in 1984 in Wajir was rekindled.
In this horrific incident, over 3,000 people were killed by
state security personnel in an operation ostensibly meant to
disarm them (Kerrow, 2010). The state was accused of having
sanctioned extra-judicial killings, torture, discrimination and
ethnic profiling in northern Kenya for a long time. Many of
the people who were directly or indirectly affected by this
incident wanted answers for these human rights violations
by the state. The debate is particularly significant because the
2010 Constitution has an expanded Bill of Rights that seeks to
address, among other things, the right to life.
Transitional (and restorative) justice was a key element of

the reforms discourse in the period preceding the promulgation
of the 2010 Constitution. Transitional justice seeks to heal
society, facilitate exit from authoritarianism and establish a
just society based on the rule of law (Akech, 2010). While
the Commission of Inquiry into Post-Election Violence63
(CIPEV) recommended the formation of a tribunal to deal
with past injustices, the Constitution failed to provide a clear
framework to do this. The omission made it possible for
people implicated in past human rights violations and abuse
of power to continue to hold public office. The TJRC, formed
in 2009 under the Kenya National Dialogue and Reconciliation
(KNDR) initiative,64 suffered serious credibility crisis after its
chairperson, Ambassador Bethwel Kiplagat, faced accusations
of involvement in human rights violations during his tenure
in government service. This credibility gap led to near
stalling of the commission’s work and withholding of funds
earmarked for the commission’s activities. The chief justice
later appointed a tribunal to investigate the chairperson’s
conduct as provided for under the law. This action prompted
the chairperson to “step aside” to let the tribunal carry out
independent investigations.
While the Constitution widens the ambit of the fundamental
human rights and freedoms of citizens and as the country’s
institutions are readied to support the new order, it will take
some time before the state and Kenyans fully embrace the
culture of respect for fundamental rights and freedoms. In
63
The CIPEV was one of the products of the Kenya National Dialogue
Reconciliation Process. It was established in May, 2008, and presented its
report to the president in October the same year.
64
Facilitated by former UN secretary general Kofi Annan, KNDR brought
together the two political divides to resolve the obtaining political crisis
at the wake of the post-election violence in Kenya in 2008.
October, the release of the Ibrahim Index on Governance 2010

painted a grim picture of the country’s attempt to move towards
the realisation of good governance. The survey, conducted by
the Mo Ibrahim Foundation listed the country at position 27
in general governance, in Africa, a drop by five positions from
its ranking the previous year. Even more worrying was the
fact that other East African countries such as Tanzania and
Uganda which have had poor governance records in the past
were ranked way ahead of Kenya.
On political persecution, the rankings placed Kenya at
number 45 out of 52 countries in Africa, five and seven places
above Zimbabwe and Somalia, respectively. This is a clear
indication that Kenya has a long way to go before joining the
prestigious league of countries that have continued to respect,
protect and promote fundamental rights and freedoms. It is
thus a welcome development to have witnessed the coming
into effect of the 2010 Constitution.
In August 2010, the Kenyan government invited President
Omar Hassan Al Bashir of Sudan to the official promulgation
of the Constitution despite pending arrest warrants issued
by the ICC against him. Bashir is accused of committing
crimes against humanity arising from his role in the Darfur
crisis that left over 300,000 people dead and over 2.7 million
displaced since the conflict began in 2003 (Aljazeera, 2010).
One of the most significant tests for Kenya’s commitment to
international treaties was the much publicised visit, which
elicited strong criticism from the European Union (EU) and
human rights groups about the government’s unwillingness
to arrest Bashir, pursuant to the provisions of Article 86 of
the Rome Statute to which Kenya, among 30 other African
countries, is a signatory. This happened on the backdrop of
an African Union (AU) resolution, adopted in July 2009 at the
end of the 13th AU Summit of Heads of State and Government

Assembly held in Libya, against cooperating with the ICC in
the arrest of Bashir.
Conclusion
This chapter has discussed in depth the events that shaped
Constitutionalism in Kenya in the year 2010. The main issue
that year was the passage and promulgation of the 2010
Constitution, which set the basis for further reform in that
country. The chapter highlighted the main features of the
Constitution. The chapter also ventured into important post-
promulgation case laws and opened a window through which
one can begin to appreciate what the new order portends.
Finally, it looked at other developments with a bearing on
Constitutionalism and the development of a democratic
state. The chapter concludes by noting that Kenya has a long
way to go in institutionalising Constitutionalism. However,
the 2010 Constitution provides a solid basis for this task.
The promulgation of the Constitution is probably the most
significant happening in that country over the last decades.
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Agina, Ben. “Top Government officials sent home.” The Standard,
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Chapter Four
The State of Constitutionalism:

Good Governance, Democratic
Development and Human Rights
in Rwanda in 2010
Christian Garuka*
Introduction
In 2010, Rwanda held its second presidential election after the 1994
genocide. The first presidential election was held in 2003, a few
months after the adoption of the 2003 Constitution. These elections
could be deductively considered the most important development
touching Constitutionalism. Indeed, most allegations of human
rights abuse were linked to them. This chapter analyses the progress
made and challenges faced in regard to Constitutionalism generally
and specifically, in achieving good governance, democratic
development and the realisation of human rights in Rwanda in
2010. In addition, the chapter, in its conceptual section discusses
the concepts of Constitutionalism and democracy. Finally, the
paper reviews some of the critical events of 2010, beginning with
the most important event: the presidential elections.
* A human rights lawyer, he holds a Bachelor of Laws degree (National

University of Rwanda) and a master’s degree in Human Rights and
Democratisation in Africa (University of Pretoria, South Africa). He has
worked as a researcher with the Centre for the Study of AIDS, University
of Pretoria, and as legal researcher at the Office of the Prosecutor of the
International Criminal Tribunal for Rwanda (ICTR).
68
Good Governance, Democratic Development and Human Rights in Rwanda in 2010 69
The Concept of Constitutionalism

Constitutionalism can be defined as the doctrine that requires
states to be faithful to their Constitutions with a condition that
the rules provided in the Constitutions protect citizens from
arbitrary decisions of those who exercise power.65 De Smith
gives a detailed definition of Constitutionalism as follows:
The idea of Constitutionalism involves the proposition
that the exercise of governmental power shall be bound by
rules, rules prescribing the procedure according to which
legislative and executive acts are to be performed and
delimiting their permissible content. Constitutionalism
becomes a living reality to the extent that these rules curb
the arbitrariness of discretion and are in fact observed by
the wielders of political power, and to the extent that within
the forbidden zones upon which authority may not trespass
there is significant room for the enjoyment of individual
liberty.66
In light of the preceding quotation, Constitutionalism
comprises many facets such as supremacy of the Constitution,
the rule of law and separation of powers. Constitutional
supremacy dictates that the rules of the Constitution are
binding on all branches of government and have priority
over any other rules made by the government. This implies
that any law or conduct that is not in accordance with the
Constitution, either in procedural or substantive terms, will
lack the force of law.67
Accordingly, there is a nexus between Constitutions
and Constitutionalism. For example, one cannot talk about
65
Shively P. William, Power and Choice: An Introduction to Political Science,
6th edition, (New York: Mc Graw-Hill College, 1999),198.
See also De Wall Johan, et al, The Bill of Rights Handbook, 4th edition,
(Lansdowne: Juta and Co Ltd,2001), p.7.
66
De Smith Alexander Stanley, The New Commonwealth and its
Constitutions,(London: Stevens, 1964),p.106.
67
Executive council of the Western Cape Legislature v. President of the
Republic of South Africa 1995(4) SA 877 (CC) at para 62.
Constitutionalism without the existence of a Constitution

although, on the contrary, the existence of a Constitution
does not necessarily imply Constitutionalism. The African
continent has over the years illustrated the relationship
between Constitution and Constitutionalism. Most post-
independence African states, if not all of them, did not comply
with the requirements of Constitutionalism, despite having
adopted written Constitutions. State elite used Constitutions as
political instruments by, for instance, instituting amendments
intended to recentralise power (in situations where power
was decentralised on independence), thus weakening the
rule of law and undermining the doctrine of separation of
powers.68 African states also drafted Constitutions providing
their executive branches (and especially the presidency) with
unlimited powers and making the other arms of government
subservient to the executive. Oftentimes, important provisions
were violated or amended to accommodate transient elite
needs. Subsequently, there have been Constitutions without
Constitutionalism in Africa.
The rule of law, as one of the facets of Constitutionalism,
requires state institutions to act in accordance with the law.
The branches of the state (no less than anyone else in the
country) must obey the law and in addition to the state, cannot
exercise power over anyone unless the law permits it to do
so.69 In other words, the rule of law signifies that no political
authority is superior to the law itself. When and where the
rule of law obtains, the rights of citizens are not dependent
on the will of rulers; rather, they are established by law and
protected by independent courts.70
68
Okoth-Ogendo, op. cit p.12.
69
De Waal Johand, et al, op.cit.
70
Sklar L.R.,“On the Study on Constitutional Government in Africa,” in Okon,
Akiba, ed., Constitutionalism in Africa, (Ashagte: Aldershot, 2004),p.43.
Since the rule of law implies the protection of human rights,

it must be noted that the Constitution of Rwanda provides
for civil and political rights on the one hand, and economic,
social and cultural rights, on the other. The civil and political
rights enshrined in the Constitution include freedom from
discrimination (Article 11), the right to life (Article 12),
freedom from torture and inhuman and degrading treatment
(Article 15), equality before the law (Article 16), individual
criminal liability (Article 17), individual liberty (Article 18),
fair trial (Article 19), the right to privacy (Article 22) and
freedom of movement (Article 23). Children’s rights (Article
28), the right to property (Article 29), freedom of opinion
(Article 33), freedom of press and information (Article 34),
freedom of association (Article 35), freedom of peaceful
assembly (Article 36), the right to work (Article 37), the right
to education (Article 40), the right to health (Article 41), and
the right to be elected or represented in public affairs (Article
45), are the other rights entrenched in the Constitution.
Besides the entrenchment of various civil and political
rights in the country’s Constitution, Rwanda has ratified core
international and regional human rights treaties namely the
ICCPR, the International Covenant on Economic, Social and
Cultural Rights (ICESCR), the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW)
and the Convention on the Rights of the Child (CRC). Others
are the Convention on the Rights of People with Disabilities
(CRPD), the African Charter on Human and Peoples’ Rights
(ACHPR), and the African Charter on the Rights and Welfare
of the Child (ACRWC).
Article 189 provides that all conventions ratified and
published in the official gazette are part of the country’s
domestic law and take precedence over statutes and other
Acts of Parliament. Thus, the above mentioned human rights’

treaties are enforceable in Rwanda and can be invoked before
the country’s courts of law, although this rarely happens.71
Nevertheless, they were invoked in Peter Erlinder v. Public
Prosecution.72
Separation of powers, which is understood as separation
of government decision making into legislative, executive,
and judicial functions, is the other facet of Constitutionalism.
Separation of powers aims at reinforcing Constitutional
protection of individual liberties by preventing the
concentration of such powers in the hands of a single
group of government officials.73 Separation of powers is
characterised and supported by checks and balances which
allow an independent judiciary to hear and determine matters
involving the interpretation of the Constitution, the legislature
to scrutinise, both primary and secondary legislation, and
oversee the activities of the executive.74
Furthermore, presidential impeachment processes enforce
juridical compliance with the Constitutional letter of the law
and is quite different from the exercise of political control
71
Concluding Observations of the Committee on the Elimination of All Forms
of Discrimination Against Women (CEDAW/c/RWA/06 at paragraph 13)
on Rwanda’s report to the Committee in 2009. Read also the Concluding
Observation of the Human Rights Committee (Human Rights Committee
CCPR/C/RWA/CO/3 of May 7, 2009 in paragraph 8) on Rwanda’s report
to the Committee. In addition, the Report submitted by the Government
of Rwanda to the African Commission on Human and People’s Rights in
2010 acknowledges the non use of international treaties by the judiciary.
72
Kigali High Court Case: RPA 0646/10/HC/KIG.
73
Okon Akiba, “Constitutional Government and the Future of
Constitutionalism in Africa,” in Okon, Akiba, ed., Constitutionalism and
Society in Africa, (Ashgate: Aldershot, 2004), p.5.
74
Hatchard J., etal eds., Comparative Constitutionalism and Good Governance
in the Commonwealth, (Cambridge: Cambridge University Press, 2004),
p.60.
over the president’s ordinary conduct of his or her office.75

Accountability must be supported by the rule of law.76 The
doctrines of the rule of law and separation of powers are
intertwined so much that mentioning one immediately invokes
the other, but there can still be a situation of separation of
powers without necessarily having the rule of law.77
In short, Constitutionalism means obedience to the rule of
law to prevent abuse of power, protect human rights, support
democratic procedures in elections and public policy-making,
and to achieve a Community’s shared purposes.78
Understanding the Concept of Democracy

Although many scholars have written and argued about the
true nature of democracy, no precise and universally accepted
definition has emerged yet. However, an in-depth analysis
of the varying definitions of democracy is beyond the scope
of this chapter. The chapter will, however, focus on the two
existing main types of democracy; participatory democracy
and representative democracy. Participatory democracy
(sometimes called direct democracy) is based on the direct,
unmediated and continuous participation of citizens in the
tasks of government. It is a system of popular self-government.
75
Verney D. V., “Parliamentary Government and Presidential Government,”
in Lijphart Rend,ed., Parliamentary Versus Presidential Government,
(Oxford Claredon: Oxford University Press,1992), pp.43-44.
76
Schnably Stephen J., “Constitutionalism and Democratic Government in
the Inter- American System,” in Fox, G H. and Roth B.R., eds., Democratic
Governance and International Law,(Cambridge: Cambridge University
Press, 2000), p.166.
77
Tumwine-Mukubwa G.P., “Ruled from the Grave: Challenging Antiquated
Constitutional Doctrines and Values in Commonwealth Africa,” in Oloka-
Onyango Joe, ed., Constitutionalism in Africa:Creating Opportunities,
Facing Challenges, (Kampala: Fountain Publishers, 2001), p.295.
78
Patrick John J., “Teaching about Democratic Constitutionalism,” Available
at: http://www.ericdigests.org/1998-1/democratic.htm,1997 (accessed on
November 22, 2010).
Participatory democracy was possible in ancient Athens

through a form of government by mass meeting.79 Although
it is generally understood that direct democracy equates to
participatory democracy, some scholars argue that direct
democracy is totally different from participatory democracy.
This latter school of thought identifies direct democracy as a
third form of democracy.80
Representative democracy on the other hand, is a limited
and indirect form of democracy. It is limited in that popular
participation in government is infrequent and brief, being
restricted to the act of voting every few years. This form of
rule is democratic only insofar as representation establishes
a reliable and effective link between the government and the
governed. Many times, this is expressed in the notion of an
electoral mandate.81
Participatory/direct democracy in its strict sense, as it
was known in Ancient Athens, is not applicable in Rwanda
and probably not in most states. The focus here is, thus on
representative democracy, which implies elections as the
source of legitimacy for rulers.82 The current and common
79
Heywood Andrew, Politics, Palgrave, Hampshire, at 70; Read also Strang
Lee J., The Clash of Rival and Incompatible Philosophical Traditions
within Constitutional Interpretation: “Originalism Grounded in the
Central Western Philosophical Tradition,” 28 Harvard Journal Law and
Public Policy, (2005): p.909.
80
De Wall Johann, et al, op. cit.
81
Heywood Andrew, op. cit.
82
The possibility of having both participatory democracy and representative
democracy in one country cannot be ruled out, however, participatory
democracy, as it was in the Ancient Athens, excludes the existence
of representative democracy; See also Hamilton M.A., “Republican
Democracy is not Democratic,” Cardozo Law Review, 26 (2005): p.2529.
definition of democracy, which reflects representation, is

described as “government of, by and for the people.”83
Government by the people means a government ruled by
their representatives with a free (party based) mandate, while
government for the people means a government ruled by
politicians responsive to the people’s interests.84 Democracy,
therefore, is a method by which decision-making is transferred
to individuals who have gained power in a competitive
struggle for the votes of citizens.85 This presupposes a link
between elections and democracy.
An election can be defined as a device for filling an office
or post through choices made by the designated body of the
people known as the electorate. Participation of the citizens in
elections and thereafter collective involvement of the elected
officials in the decision-making process, are important
ingredients for the gradual establishment of democracy.86
In other words, elections are meant to do more than bolster
support for the regime. They may also be the means by which
leaders and (sometimes) actual policies are chosen by the
people. An election must involve a choice between candidates
or a choice whether a particular policy is to be followed.
83
The phrase was coined by Abraham Lincoln, the US President, who during
the American Civil War in 1864 described democracy as the government
of the people, by the people and for the people.
84
Schneider H.P., “Democracy, Human Rights and Economic Development:
Relations and Tensions Regarding the Role of the State,” in Steytler, Nico,
ed., Democracy, Human Rights and Economic Development in Southern
Africa, (Johannesburg: Lex Patria Publisher, 1997), p.16.
85
Van Cranenburgh Oda, “Democratisation in Africa: The Role of the
Election Observation,” in Abbink Jon and Hesseling Gerti, eds., Election
Observation and Democratisation in Africa, (London: Macmillan Press Ltd,
2000), p.22.
86
Adar Korwa Gombe, “The Interface between Elections and Democracy:
Kenya’s Search for Sustainable Democratic System 1960-1990s,” in
Hyslop, Jonathan, ed., African Democracy in the Era of Globalisation,
Johannesburg:Witwatersrand University Press,1999),p.341.
If elections are to be used to choose political leaders, there

must be some rules translating people’s votes into a particular
selection of leaders.87
It can also be argued that democracy acknowledges the
difference between the people and the ruling elites and
distinguishes between the wish to rule and the will of the
electorate.88 Nevertheless, the viability of a democracy relies on
several conditions: that government decisions are responsive
to the needs of citizens; decision-making is efficient and
based on adequate information and is subject to criticism;
and that government is not “systematically” oppressive to
individuals.89
As previously noted, the legitimacy of the rulers is derived
from the consent of the people through free and fair elections.
Free and fair elections signify that the results reflect the
free expression of the will of the people. Popular leaders
would expect to do well in elections, but when such leaders
participate in undemocratic elections and are victorious, they
lose legitimacy.90 Free and fair elections fulfil the requirements
of representative democracy, whereby those who rule, not only
come from the people, but represent the people in processes
of decision-making.91
A free and fair election presupposes competition between
political parties or independent candidates.92 With respect to
the relevance of political parties in elections, the European
Court of Human Rights held that the formation of political
87
Shively, William Phillips, op.cit.
88
Ibid.
89
Schneider H-P., op.cit.
90
Corchado Lara R., “Complying with International Law: A call for free and
fair elections,” Brooklyn Journal of International Law, 30 (2005): p.1029.
91
De Gaay Fortman Bas, “Elections and Civil Strife: Some Implications for
International Elections,” in Abbink, Jon and Gerti Hesseling Gerti, op.cit.
92
Political competition implies different political actors with their agendas.
parties seeking elected office for their candidates plays an

essential role in ensuring pluralism and the proper functioning
of democracy.93 Multi-party elections provide a mechanism
for political mobilisation within an institutional framework.
However, democracy cannot be measured by the quantity
of competitors alone. The quality of political parties is also
important. Above all, they should be able to offer alternative
policy and leadership options to the electorate.94
Presidential Election 2010: Achievements and

Challenges
The presidential election Rwanda held in September 2010
was won by the incumbent, President Paul Kagame, of the
Rwandan Patriotic Front (RPF) with 93.8% of the vote.95 Prosper
Higiro for the Parti Liberal (PL), Jean Damascene Ntakuliryayo
for Parti Social Democrate (PSD) and Alvera Mukabaramba
for Parti pour la Paix et la Concorde (PPC), were the other
contestants in the race. The other political parties were part
of the coalition government and did not, therefore, qualify as
opposition parties. However, it must be noted that PL and PSD
supported Paul Kagame in the previous elections of 2003.
In the context of Constitutionalism, these elections
encountered challenges, but equally scored some achievements.
For instance, a fresh electoral law was promulgated in the
official gazette as Law No 27/2010 of 19/06/2010 following the
revocation of the 2003 electoral law. The 2010 electoral law
has 210 provisions whereas the repealed 2003 law had 124
provisions. The 2010 law consolidates presidential, legislative
and municipal electoral laws and is a more comprehensive
93
Socialist Party and others v. Turkey, case No 20/1997/804/1007, para. 41.
94
A.Thomson, An Introduction to African Politics, (Routledge: Taylor and
Francis Group,2000), p.223.
95
Read the results of the presidential elections at: http://www.comelena.gov.
rw/?Presidential-Elections-2010 (accessed on April 27, 2011).
law compared to the previous one. The improvement of the

electoral law (code) was important in the advancement of the
handling of elections in a democratic manner. As expected,
some observers concluded that the elections were free and
fair.96 Although the basis for such a conclusion is not solely the
existence of the new law, it nonetheless made a contribution.
Looking at the challenges, there was, for example, a lot of
criticism by the foreign media and international human rights
organisations during the pre-election period.97 While the
Commonwealth Observer Group concluded that the elections
were free and fair, it called upon the government to address
issues of political participation and media freedom so as to
meet the key benchmarks for democratic elections, which
Rwanda is committed to.98 The European Union (EU) also held
the same views as the Commonwealth Observer Group.99 On
the other hand, the US through the National Security Council
acknowledged that progress had been made in Rwanda with
regards to handling of elections since the 1994 genocide. It
however, expressed concern on various issues and urged the
leadership to take steps towards establishing more democratic
governance, increased respect for minority and opposition
96
“Statement of the African Union Observer Mission to the Presidential
Election in Rwanda,” Available at: www.africa-union.org/root/ar/index/PR
(accessed on April 25, 2011).
97
“President Paul Kagame Under Scrutiny,” The Economist, August 5, 2010,
Available on:
http://www.economist.com/realarticleid.cfm?redirect_id=16750119
(accessed on 18 October, 2010).
98
The report of the Commonwealth Observer Group on the Rwanda
Presidential Election of 9 August, 2010 available at: http://www.
thecommonwealth.org/files/229333/FileName/RWANDAFINALREPORT-
PrintVersion.pdf (accessed on November 25, 2010).
99
“Statement by the High Representative Catherine Ashton and EU
Commissioner for Development Andris Piebalgs on the Presidential Elections
in Rwanda,” Available at: http://europa.eu/rapid/pressReleasesAction.
do?reference=MEMO/10/366 (accessed on April 24, 2011).
views, and continued peace.100 Although the elections were

free and fair to a large extent, the shortcomings minimised
the effect that the conduct of elections had on advancing
democratic rule. This was particularly in regard to the hurdles
placed in the way of opposition candidates.
As observed by the Commonwealth Observers Group, the
EU and the US, some of the opposition parties could not field
candidates for various reasons; some purely administrative.
Some parties that sought registration were not registered. This
was the case with the Democratic Green Party, PDP-Imanzi
of Deo Mushayidi, and FDU-Inkingi of Victoire Ingabire. The
opposition parties alleged that the government had prevented
their registration, making it impossible for them to participate
in the election.101
Three opposition party leaders, Bernard Ntangada of Parti
Social Imberakuri, Victoire Ingabire of PDU-Inkingi and Deo
Mushayidi of PDP-Imanzi, were detained and could, therefore,
not run for the presidency. Below is a review of the court cases
that were brought against the three.
100
“Disturbing Events Marred Rwanda Leader’s Re-election, U.S. says,”
New York Times, August 14 2010, Available at: http://www.nytimes.
com/2010/08/15/world/africa/15rwanda.html? (accessed on February 7,
2011).
101
“Rwanda Opposition calls for a Transitional Government of National Unity,”
Permanent Consultative Council of Opposition Parties in Rwanda, Available
at: http://rwandagreendemocrats.org/spip.php?article103 (accessed on April
25, 2011).
Victoire Ingabire Case

Ingabire returned to Rwanda at the beginning of 2010 with the
purpose of registering her political party in order to compete
for the presidency. She was, however, arrested in April 2010
on charges of terror, genocide ideology and sectarianism. The
Intermediate Court of Gasabo on April 22, 2010 released her
on bail, but she was put under house arrest, which prevented
her from going beyond Kigali.102 She was then re-arrested on
October 14, 2010 and the Intermediate Court of Gasabo rejected
her bail application on October 26, 2010. The court ruled that
she had to be remanded for 30 days pending completion of
investigations. Ingabire, in turn lodged an appeal and the
High Court on November 12, 2010 upheld the ruling of the
Intermediate Court of Gasabo.103
Had Ingabire’s party been registered and she became its
presidential candidate, the house arrest would have limited
her campaign, resulting in negative implications on the
conduct of the election and, by extension, the development of
democracy. As it were, the failure by the state to register the
political party denied her an opportunity to contest.
Bernard Ntaganda Case

Ntaganda, the founder and leader of Parti Social-Imberakuri
political party, was arrested on June 24, 2010 on charges of
terror, organising demonstrations without authorisation,
endangering national security, and inciting ethnic divisions.
The Intermediate Court of Nyarugenge ruled that Ntaganda
was in pre-trial detention for 30 days pending completion
of the prosecution’s investigation. On October 30, 2010, the
102
The case is available at: http://www.supremecourt.gov.rw/IMG/pdf/
Ingabire_victoire.pdf (accessed on November 29, 2010).
103
ingabire.pdf (accessed on November 29, 2010).
High Court upheld the decision of the Intermediate Court

of Nyarugenge.104 Ntaganda’s supporters105 and some human
rights NGOs alleged that the pre-trial detention aimed at
preventing Ntaganda from participating in the elections.
This allegation raised the question of what should happen
to presidential candidates if and when they are suspected of
breaking the law. On the other hand, it raised the question of
the legitimacy of the charges brought against them and whether
or not they were being targeted because of challenging the
incumbent. Where such detentions are politically motivated,
they obviously undermine democracy in as far as elections
are concerned.
Deogratias Mushayidi Case

Mushayidi, a critic of the government and the leader of the
unregistered PDP-Imanzi political party, was accused of
endangering state security, collaboration with terrorist groups,
genocide ideology, divisionism and forgery. The High Court
sentenced him to life imprisonment after finding him guilty of
using a forged document, causing state insecurity and inciting
the population to hate the government. The court, however,
cleared him of charges of promoting genocide ideology
and divisionism.106 Despite the sensitivity associated with
ethnicity, as one of the consequences of the 1994 genocide, the
High Court ruled that the prosecution had failed to prove that
Mushayidi made allegations that amounted to sectarianism.
104
Urubanza_Ntaganda.pdf (accessed on November 29, 2010).
105
Press release N° 011/P.S.IMB/010: “To the defenders of peace in Rwanda,”
Available at: http://www.imberakuri.org/20100711e.html (accessed on
April 24, 2011).
106
Microsoft_Word_-_MUSHAYIDI_Deo_Last.pdf (accessed on November 29,
2010).
Subsequent to this ruling, Mushayidi lodged an appeal to the

Supreme Court.
Failure by the government to register some of the political
parties and the continued detention of key presidential
candidates undermined democratic development in
the country. Apart from the presidential elections, the
developments below also occurred during the period under
review.
Legal Developments in 2010

Rwanda reviewed some of its laws and enacted some new
legislation. The Fourth Amendment to the Constitution was
made vide. Law No 4 of 17 June, 2010. This Constitutional
amendment addressed procedural (form) rather than
substantive matters. Nevertheless, the amendment repealed
four (4) out of the 70 provisions that were targeted. Some of
the amendments were:
Article 56: National Consultative Forum of Political
Organisations
The amended provision reads: “A national Consultative Forum
of Political Organisations is hereby established for purposes of
national political dialogue, consensus building and national
cohesion.” However, Article 56(1) provided previously that:
“Without prejudice to the independence of each political
organisation and their collaboration, political organisations
officially recognised in Rwanda shall organise themselves in
a consultative forum.”
The interpretation of the previous provision meant that
all registered political parties had to belong to the forum of
political parties. With the newly amended provision, the
question is whether registered political parties can decide
whether or not to join the National Consultative Forum of

Political Organisations.
Article 134: Informing Parliament of Government Activities
The previous provision under Article 134(1) read: “The Prime
minister is obliged to inform the Chambers of Parliament of
government activities whenever it is possible.” The amended
subsection provides that “the Prime minister is obliged to
inform once in a session both chambers of Parliament in a joint
session of government activities.” It is worth noting that this
amendment will enhance, to some extent, the control of the
legislature over the executive branch of government compared
to the previous provision, which fell short of such possibility
by including the phrase “whenever it is possible.” It could be
argued that this provision will enhance the accountability of
the government (the executive branch) and, thus contribute to
the advancement of Constitutionalism.
Article 145: Provides for the Jurisdiction and
Responsibilities of the Supreme Court
The amended provision provides for a new sub-section 10
which reads: “On matters relating to the organisation of the
judiciary, the Supreme Court may propose to the Government
a bill of any nature amending existing law in public
interest.” This sub-section is relevant because it increases
the responsibilities of the Supreme Court. In addition, the
subsection will provide an opportunity for lawyers in terms
of public interest litigation. As far as Constitutionalism is
concerned, this provision will contribute to the development
of the rule of law and ultimately, Constitutionalism.
With regard to the electoral law, it should be noted that the
previous Organic Law No 17/2003 of July 7, 2003 governing
presidential and legislative elections, was repealed by Organic

Law No 03/2010 of 18 June, 2010.107
Legislation Relating to the Death Penalty
Although the abolition of the death penalty in 2007 was
supported as progressive in terms of enhancement of human
rights, the law abolishing it came under criticism by human
rights activists and organisations. This is because the law
replaced the death penalty with life imprisonment, with a
special provision including solitary confinement, which has
been considered an inhuman and degrading treatment when
it is prolonged.108 Article 4 of Organic Law No 31/2007 of
25 July, 2007 relating to the abolition of the death penalty
provided:
“Life imprisonment with special provisions is imprisonment with
the following modalities: 1° a convicted person is not entitled to
any kind of mercy, conditional release or rehabilitation, unless
he/she has served at least twenty (20) years of imprisonment;
2° a convicted person is kept in isolation. The law provides
for the specific mode of enforcement and execution of life
imprisonment with special provisions.”
Organic Law No 31/2007 of 25 July, 2007 was amended and
completed by Organic Law No 05/2009 of 21 December, 2009.
Although this law was passed in 2009, it was promulgated in
2010 through Official Gazette No. 04 of 25 January, 2010. The
amending law (Organic law No 05/2009 of 21 December, 2009)
mainly amended Article 4 of the Organic Law No 31/2007
107
The word “Organic Law” as often referred in the Rwandan legal terminology
is the literal translation of “Loi Organique” which can be understood in
French as statute law.
108
Mujuzi Ddamulira Jamil, “Issues surrounding Life imprisonment
After the Abolition of the Death Penalty in Rwanda,” Human Rights
Law Review, Volume 9,(2009):329-338. See also http://www.hrw.org/
en/news/2009/01/29/letter-rwanda-parliament-regarding-penalty-life-
imprisonment-solitary-confinement (accessed on November 27, 2010).
of 25 July, 2007 by excluding “solitary confinement” in the

definition of life imprisonment with special provision.
Article 3 of Law N°32/2010 of 22 September, 2010,
relating to serving life imprisonment with special provisions,
defines “life imprisonment with special provisions” as a life
imprisonment characterised with the following specificities:
1. a sentenced person is not entitled to any kind of mercy,
conditional release or rehabilitation, unless he/she has
served at least twenty (20) years of imprisonment.
2. a sentenced person is kept in prison in an individual
cell reserved for the guilty people of the inhuman crimes
mentioned in Article 2 of this law.
3. This cell must have sufficient dimensions and required
equipment.
The same law under Article 4 provides for the rights of a
person sentenced to life imprisonment with special provisions
as follows:
The rights of the sentenced person to life imprisonment with
special provisions under this Law shall be respected all the
time and the sentenced person shall be protected against
any form of torture and cruel, inhuman and other degrading
treatment. Any form of discrimination against the sentenced
person based on ethnicity, colour, sex, language, religion,
political opinion, nationality, social and economic status,
birth or any other ground is prohibited.
This provision is very important since it prohibits torture,
inhuman and degrading treatment which secluded prisoners
are likely to face.
Article 5 provides for basic needs for a sentenced person to
life imprisonment with special provisions:
The person serving life imprisonment with special provisions
shall be afforded a minimum standard of living to enable him/
her to maintain a healthy life and personal hygiene as other
prisoners do.
The person serving life imprisonment with special provisions
shall have the right to get out of the cell to move to a spacious
place to enjoy a breath of fresh air inside the prison enclosures.

Also, he/she shall be entitled to time to perform physical
exercises and act according to his/her religious beliefs.
Modalities for the implementation of the provisions of the
preceding paragraph shall be determined by the internal rules
and regulations of prisons.
The above provision guarantees religious freedom as provided
for by ACHPR (Article 8) and ICCPR (Article 18 (2)). In
addition, granting a prisoner the right to enjoy a breath of
fresh air is in line with the requirement to treat prisoners with
human dignity.
Article 6 provides for medical care for a person serving life
imprisonment with special provisions, which is commensurate
with ICESCR (Article 12) and ACHPR (Article 16) on the right
to health.
Article 7 grants prisoners serving life imprisonment with
special provisions visitation rights:
Without prejudice to public order, the person serving life
imprisonment with special provisions may be visited by
his/her parents, his/her spouse, his/her children and his/
her members of family at the days, the hours and under the
conditions prescribed by the internal rules and regulations of
prisons. The person serving life imprisonment with special
provisions shall have the right of being visited by his/her
lawyer during working hours and they shall be allowed to
communicate orally or in writing in the presence of a prison
guard or any other competent prison staff.
Though the above provision is progressive in terms of human
rights, allowing a prison guard or any other person to be
present during communication between a prisoner and his
or her lawyer violates the privileged communication between
the prisoner and his or her lawyer.
Lastly, Article 10 entitles the prisoner to the right to
information, specifically to read and have access to newspapers
and news.
The fact that law N°32/2010 of 22 September, 2010

relating to serving life imprisonment with special provisions
provides for some basic rights for individuals sentenced to
life imprisonment with special provision, it is supportive of
human rights.
Establishment of the Law Reform Commission
Unlike the other partner states of the EAC, Rwanda and
Burundi have for a long time not had law reform commissions.
However, Rwanda, through Organic Law N° 01/2010/OL of 09
June, 2010 establishing the national law reform commission,
took an important step and enacted a legal framework for the
establishment of the law reform commission.109 The mandate
of the commission is captured under Article 5, which states
that the commission shall be generally and permanently
responsible for following up the development of laws and
their reform. Though it was premature to assess the impact
of the law reform commission during the year under review,
it was anticipated that it would carry out research on existing
legislation and make recommendations pertaining to areas that
require amendment or repeal. The amendment or repeal of the
existing legislation could play a crucial role in strengthening
the rule-of-law.
Human Rights Challenges

A number of challenges in the realisation of human rights
were faced during the period under review and most of them
were related to the presidential elections. Below is a review of
some of the issues and the actors involved.
109
The Law Reform Commission is not yet operational due to the fact that its
members have not been appointed.
Right to Fair Trial: The Peter Erlinder Case

In May 2010, Erlinder, one of Ingabire’s defence lawyers, was
arrested on accusations of genocide denial and spreading
malicious rumours, which could endanger national security.
Erlinder’s arrest was widely reported in the media.110 The
Intermediate Court of Gasabo on 7 June, 2010 ruled that
Erlinder be put on pre-trial detention for 30 days pending
completion of investigations of his case. In his appeal,
Erlinder argued inter alia that the Intermediate Court of
Gasabo violated his right to a fair trial since he was tried in a
language, which neither he nor his counsels understood. He
also made reference to the UDHR and the ICCPR. He further
argued that the ICCPR and the ACHPR protected his right to
freedom of speech and, therefore, he could not be detained on
allegations of genocide denial. Surprisingly, Erlinder referred
to the US Constitution with regard to freedom of speech. It
must be borne in mind that reference to the US Constitution
was superfluous since the case was handled in a sovereign
country, Rwanda.
The judge of the High Court concurred that the judgment
was rendered in Kinyarwanda, a language Erlinder and three
of his lawyers neither spoke nor understood. However, the
judge ruled that in the interest of justice and the interest of the
parties to the litigation, he (the judge) had to write and deliver
judgment in a language he understood (paragraph 23 of the
110
Read Amanda Pinto, “Peter Erlinder arrest a blow to international law,”
guardian.co.uk (Guardian News and Media Ltd), Available at: http://www.
guardian.co.uk/law/2010/jun/29/peter-erlinder-arrest-international-law
(accessed on April 27, 2011). See also “American lawyer Peter Erlinder
arrested in Kigali,” Hirondelle News Agency, May 28, 2010. Available at:
http://www.hirondellenews.com/content/view/13498/332/ (accessed on
April 27, 2011). Also Hereward Holland, “Rwanda Arrests US Lawyer for
Genocide Denial,” Available at: http://www.reuters.com/article/2010/05/28/
us-rwanda-genocide-denial-idUSTRE64R4AI20100528 (accessed on April
27, 2011).
High Court judgment). The High Court ruled that Erlinder’s

right to fair trial was not violated despite the Intermediate
Court of Gasabo rendering its judgment in a language Erlinder
neither spoke nor understood. This ruling violated the right
to a fair trial and the rule of law one of the core tenets of
Constitutionalism.
Nevertheless, Erlinder was on June 17, 2010 released by
the High Court on bail, on medical grounds.111
Freedom of Press, Freedom of Opinion and of Assembly
Concerns about freedom of press, freedom of opinion and
the right to assembly dominated the presidential election
campaign. With regard to freedom of press, the Media High
Council in April 2010 suspended for six months Umuvugizi
and Umuseso, two newspapers critical of the government, on
the grounds that they violated media laws and incited public
unrest.112 This suspension was criticised abroad.113 In an
issue of the Press Freedom Index 2010 report published by
Reporters Without Borders, Rwanda was ranked 169 out of 178
countries.114 It should be noted that the Press Freedom Index
111
The case is available at: http://www.supremecourt.gov.rw/IMG/pdf/Case_
Peter_Erlinder_Copie_Finale_2_.pdf (accessed on November 29, 2010).
112
Charles Kwizera, “Umuseso, Umuvugizi Suspended,” The New
Times, (undated), Available at: http://www.newtimes.co.rw/index.
php?issue=14230andarticle=28032 (accessed on October 20, 2010).
113
Ann Garrison, “Rwanda Shuts Down Independent Press,” Digital Journal
Reports, April 14, 2010, Available at: http://www.digitaljournal.com/
article/290545 (accessed on October 20, 2010). Read also Committee
to Protect Journalists, “Rwanda Shuts Critical Papers in Run-Up to
Presidential Vote,” Available at: http://cpj.org/2010/04/rwanda-shuts-
critical-papers-in-run-up-to-presiden.php (accessed on October 20, 2010).
See also “Rwanda Suspends Media Outlets,” guardian.co.uk (Guardian
News and Media Ltd.) Available at: http://www.guardian.co.uk/media/
greenslade/2010/aug/05/press-freedom-rwanda (accessed on October 27,
2010).
114
Reporters Without Borders, “Press Freedom Index 2010,” Available at: http://
en.rsf.org/press-freedom-index-2010,1034.html (accessed on November
20, 2010).
of 2009 ranked Rwanda 154 in 2009,115an indication that the

country had regressed. This regression could be attributed to
the presidential election and the stakes that came with it.
In August 2010, Amnesty International published a report
“Rwanda: Safer to Stay Silent: The Chilling Effect of Rwanda’s
Laws on ‘Genocide Ideology’ and ‘sectarianism’” in which it
alleged that the laws on genocide ideology and sectarianism
infringed on freedom of opinion116 and aimed at silencing
dissenting opinions. The report alleged that the government
had used the two laws to suppress dissenting opinions from
scholars, activists and politicians and stated that the laws
needed review.117
In addition, as far as the right to assembly is concerned,
police interrupted, for various reasons, meetings of opposition
parties (both registered and non-registered). The government
alleged that the meetings were violent and illegal since they
had not obtained prior official authorisation as required
by the law. On the other hand, political parties and human
rights organisations argued that such prohibitive measures
amounted to violation of their right/freedom of assembly.118
There was also limited access to justice. A 2009 survey
published in 2010 by the Legal Aid Forum revealed that 80%
115
Reporters Without Borders, “Press Freedom Index 2009,” Available at: http://
en.rsf.org/press-freedom-index-2009,1001.html (accessed on November
20, 2010).
116
Ibid.
117
Amnesty International, “Rwanda: Safer to Stay Silent: The chilling effect
of Rwanda’s laws on ‘genocide ideology’ and ‘sectarianism,” Available at:
http://www.amnesty.org/en/library/info/AFR47/005/2010/en (accessed on
October 20, 2010).
118
“Rwanda: Silencing Dissent Ahead of Elections”. Available at:
http://www.hrw.org/en/news/2010/08/02/rwanda-attacks-freedom-
expression-freedom-association-and-freedom-assembly-run-presi
(accessed on April 24, 2011).
of the defendants in the courts of law lacked legal advice.119

Assuming this is a fair representation of the actual situation,
and even if there might have been some progress in 2010
related to legal representation in the courts of law, it would
be difficult to record a drastic drop in one year. Access to
justice, with a focus on legal representation, therefore,
remained a challenge for many Rwandans, particularly those
with low income. This challenge affected the right to fair trial,
particularly, the right to legal representation of people with
low income, which undermined Constitutionalism since the
rule-of-law cannot be enjoyed by people who do not have
legal representation.
In a different development, the former army chief of
staff and Rwanda’s high commissioner to India, General
Kayumba Nyamwasa, fled to exile. His defection had
different interpretations.120 On one hand, it was reported that
prior to his defection, he had been investigated on criminal
allegations121 and on the other hand, some foreign media
argued that the defection reflected a tension within the ruling
party as well as division within the army.122 Nevertheless,
Kayumba’s defection, despite the arguments advanced by
foreign media, had no impact on the presidential elections
since the incumbent president was re-elected.
119
Ivan R. Mugisha, “Rwanda: 80% of Defendants Lack Legal Advice –
Survey,” The New Times, September 23, 2010. Also available at: http://
allafrica.com/stories/201009230496.html (accessed on November 20,
2010).
120
“Kayumba Nyamwasa Defects,” “The New Times, Available at: fhttp://
www.newtimes.co.rw/print.php?issue=14259andprintandarticle=26392
(accessed on December 7, 2010).
121
“The Ruling Party has the Right to Summon Officials- SG,” The New Times,
March 4, 2011.
122
“Division in Rwanda’s Military Ranks,” available at: http://www.bbc.co.uk/
go/em/fr/-/news/10358923 (accessed on January 25, 2011). Read also:
“Peut- on parler de des purges au sein de l’armée rwandaise?” Available
at: http://www.rfi.fr/contenu/20100421-peut-on-parler-purge-sein-armee-
rwandaise (accessed on January 27, 2011).
Some Notable Achievements

As previously mentioned, the review of the law on the
abolition of the death penalty was considered a human
rights achievement. In addition, in an interview with Radio
France Internationale, the minister for justice declared that
cabinet was reviewing the law on genocide ideology, which
had hitherto been a subject of criticism by human rights
organisations and activists.123
During 2010, the media fraternity called for decriminalisation
of defamation.124 It was argued that defamation involves damage
to an individual’s reputation as opposed to harm against public
order, therefore, there was no need to include defamation in the
criminal code. Defamation also hampers operations of the press.
In addition, Rwanda embarked on the process of a
countrywide land registration exercise in 2010, an important
exercise as far as land tenure and the right to property are
concerned.125 It was opined that registration of land would
bring with it certainty of ownership, increased productivity,
particularly in rural areas, decline in land disputes and use
of land titles as collateral for procuring loans.126 Moreover,
land registration, if carried out transparently and efficiently,
contributes to good governance.127
With regard to fighting corruption, which has a relationship
with guaranteeing human rights, Rwanda recorded significant
progress. The 2010 Corruption Perceptions Index ranked
123
“Rwandan Cabinet Reviews Genocide Ideology Law,” available at: http://
www.english.rfi.fr/africa/20100811-rwandan-cabinet-reviews-genocide-
ideology-law (Accessed on November 28, 2010).
124
“Media Fraternity Wants Defamation Decriminalised,” The New Times,
November 8, 2010.
125
“30% of the Land Registered Countrywide,” The New Times, October 7,
2010.
126
Ibid.
127
“Good governance in Land Tenure and Land Administration – FAO Work,”
available at: http://www.undp.org/oslocentre/docs07/pps/4.pdf (accessed
on April 25, 2011).
Rwanda 66 out of 178 states surveyed.128 This compared

positively with the 2009 Corruption Perceptions Index in
which Rwanda was ranked 89.129 This contributed to good
governance since the fight against corruption is a critical
component thereof.130
Conclusion
The year 2010 registered achievements as well as challenges
related to Constitutionalism (mostly human rights and
democracy) in Rwanda. Freedom of press and freedom of
opinion were areas of major concern as demonstrated by the
suspension of Umuseso and Umuvugizi newspapers on grounds
of criticising government’s policies. The law criminalising the
ideology of genocide was also a critical area of concern, while
criminal cases against some politicians were also noted.
Similarly, progressive legislation and institution building
were also achieved. Among these, the law establishing the
law reform commission, which has the potential to alter the
architecture of law-making. It is expected that the commission
will improve the quality of enacted laws. In addition, the
amendment, which removed the term “solitary confinement”
from the law dealing with life imprisonment with special
provision, was a positive step in upholding human rights
and a contribution to the rule of law. Finally, the government
embarked on a process of reviewing the law on genocide
ideology, hitherto criticised overwhelmingly for its effect on the
realisation of human rights, specifically freedom of speech.
128
http://www.transparency.org/policy_research/surveys_indices/cpi/2010/
results (accessed on February 8, 2011).
129
http://www.transparency.org/policy_research/surveys_indices/cpi/2009/
cpi_2009_table (accessed on February 8, 2011).
130
“Fighting Poverty and Corruption: Integrating the Fight Against Corruption
into the PRS Process-Analysis and Recommendations for Development
Cooperation,” available at: http://www.u4.no/document/literature/
gtzfightingpoverty.pdf (accessed on April 24, 2011).
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Organic Law N° 01/2010/OL of 09/6/2010 of establishing the National
Law Reform Commission.
Organic Law No 05/2009 of 21/12/2009 modifying and completing
Organic Law No31/2007 of 25/07/2007 relating to the abolition
of the death penalty.
Law N°32/2010 of 22/09/2010 relating to serving life imprisonment
with special provisions.
Law No 4 of 17/06/2010 amending the Constitution.
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Bernard Ntaganda v. Public Prosecution, Kigali High Court, case
RPA0752/10/HC/KIG. Available at: http://www.supremecourt.
gov.rw/IMG/pdf/Urubanza_Ntaganda.pdf
Deogratias Mushayidi v. Public Prosecution, Kigali High Court, case
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IMG/pdf/Microsoft_Word_-_MUSHAYIDI_Deo_Last.pdf
Peter Erlinder v. Public Prosecution, Kigali High Court, case RPA RPA
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Chapter Five
The State of Constitutionalism

in 2010: Issues, Debates and
Perspectives for Tanzania
Mainland
William Tate Olenasha*
Introduction
Tanzania Mainland, previously Tanganyika, attained
independence in 1961; becoming the first East African
country to do so. It became a republic in 1962 and then
joined Zanzibar to form the union government – the United
Republic of Tanzania – in 1964. In 1965, multi-partism was
abolished. Subsequently, the only parties that were allowed
to operate were the Afro-Shirazi Party (ASP) in Zanzibar and
Tanganyika National Union (TANU) in the Mainland. The two
parties merged in 1977 leading to the birth of CCM, which has
dominated the political landscape since then.
* A professional lawyer, he holds a Bachelor of Laws degree (University

of Dar-es-Salaam), a Master of Laws in Human Rights, Governance
and Democratisation (University of Pretoria, South Africa), and several
professional certificates in good governance and human rights. He has
worked as advisor to the minister of Livestock Development in Tanzania,
and coordinator with Joint Oxfam Livelihood Initiative for Tanzania,
among others.
98
Issues, Debates and Perspectives for Tanzania Mainland 99
Additionally, one party rule ended in 1992 when the

Constitution was amended to allow multi-partism. The country
held its first multiparty elections in 1995. Although CCM
won, it faced serious challenge from the National Convention
for Construction and Reform- Mageuzi (NCCR-Mageuzi), then
under the leadership of its presidential candidate, Augustino
Lyatonga Mrema, who had just defected from the ruling
CCM. Benjamin William Mkapa emerged victorious receiving
slightly more than 65% of the total vote, while Mrema got
about 27%.
The 1995 elections was a wake-up call for CCM not to take
the opposition for granted. Subsequently, the party campaigned
more vigorously in the run up to the 2000 elections, securing
71% of the votes in the presidential election. On the other
hand, the opposition did not progress well after 1995. For
instance, infighting within NCCR-Mageuzi undermined and
weakened the party, prompting Mrema to move to another
party, the Tanzania Labour Party. In light of this, it is not
surprising that NCCR-Mageuzi performed dismally in the
2000 elections. The third multiparty elections took place
in 2005. CCM emerged victorious by a big margin, with the
‘likeable’ Jakaya Mrisho Kikwete securing slightly more than
80% of the total votes cast. However, CCM failed to replicate
this big victory in the 2010 elections, where the incumbent
secured slightly more than 60% of the votes, with perhaps the
strongest effort ever put into an election by the party in the
history of multipartyism in the country.
In light of the aforementioned political highlights
in Tanzania, this chapter discusses the development of
Constitutionalism in Tanzania in 2010.
It presents important developments during the year,
which have a bearing on Constitutionalism. Additionally,
the chapter analyses the general elections as one of the most

important events of the year and examines their contribution
to Constitutionalism. Some of the important developments
in the legislative arena – such as the new Electoral Expenses
Act – are discussed. Finally, in the area of case law, three
judgements with significant jurisprudential implications are
examined.
Conceptual Framework
Three important concepts are discussed in this subsection:
Constitutionalism, good governance and democratic
development. These are then utilised in the subsequent
analysis.
Constitutionalism
A review of literature on Constitutionalism demonstrates
that there are different schools of thought with varied
understanding of Constitutionalism. Professor Okoth Ogendo
considers Constitutionalism to be about development of norms
that regulate the exercise of power in society. Accordingly, he
notes:
… all law, and Constitutional law in particular, is concerned,
not with abstract norms, but with the creation, distribution,
exercise, legitimation, effects, and reproduction of power; it
matters not whether that power lies with the state or in some
other organised entity. From this perspective, therefore, the
very idea of law, hence of a Constitution as a special body of
law, entails commitment or adherence to a theory of organised
power (Ogendo, 1991:67).
Constitutionalism, from this understanding, is concerned
with the extent to which power that is exercised by public
authorities derives from a Constitutional order.
A divergent school of thought views Constitutionalism as a
mechanism for protecting individuals from violation of their
rights by the state and organs created by the Constitution, as
well as by private individuals. The proponents of this school

of thought argue that Constitutionalism is meaningless if it
does not protect and safeguard the interests of the individual.
Murphy, for example, states:
Constitutionalism … enshrines respect for human worth and
dignity as its principle. To protect that value, citizens must
have a right to political participation, and their government
must be hedged in by substantive limits on what it can do,
even when perfectly mirroring the popular will (Murphy,
1993:3).
For some scholars, Constitutionalism is not necessarily found
in the beautiful documents we call Constitutions, but rather
in the attitudes and ethos of those who enact the Constitutions
and decide to be governed and guided by the spirit of their
provisions. A Constitution in this sense mirrors the heart and
collective ethos of a given society, and is more than a mere
collection or shopping list of agreements between the ruled
and the rulers. It is a reflection of how the society or a given
Community behaves and how it is seen by others from the
outside. Hanna Pitkins expresses this position in the following
manner:
… Constitutions are made, not found . They are human
creations, products of convention, choice, the specific history
of a particular people, and (almost always) a political struggle
in which some win and others lose.… One might even want
to argue that our Constitution is more something we do than
something we make: we (re)shape it all the time through our
collective activity. Our Constitution is (what is relatively stable
in) our activity; a stranger learns its principles by watching
our conduct (Pitkins, 1987:168).
A more “modern” approach is one that sees Constitutionalism
as the totality of everything we do in the society, encompassing
the social, political, economic, and historic realities of our
existence. For this view, it is possible to have Constitutions
with excellent content, but whose spirit is ignored. Professor
Oloka-Onyango, one of the proponents of this view, notes:
For many scholars, politicians and activists, the notion

of Constitutionalism is one that produces numerous and
oftentimes conflicting responses. For some, especially the
more positivist or legally minded – Constitutionalism simply
represents a concern with the instrumentalities of governance.
These range from the Constitution itself and other legally
constructed documents that have been created to support it,
the structures and institutions that are established under their
framework. They outline … the ‘power map’ of the particular
state and the formal relationships between the governed
and those who govern them. Others adopt a more nuanced
and embracing view, considering Constitutionalism within
the much broader context of the social, economic, political,
gendered and cultural milieu wherein those instrumentalities
operate. A nicely worded or eloquently phrased document
means nothing if the context in which it is supposed to operate
is harsh and hostile – a context in which you may have a
‘Constitution without Constitutionalism… (Emphasis added)
(Oloka-Onyango 2001:3).
In a nutshell, therefore, “… Constitutionalism is concerned
about all the various dimensions of statecraft and governance
– from the seemingly mundane, to the great and vexing issues
of political and economic management in a world that has
increasingly become smaller.” (Oloka-Onyango, 2001:3).
Holmes, on the other hand, gives a more encompassing
description of Constitutionalism:
…Constitutionalism (as a descriptive concept) means a system
of political arrangements in which there is a supreme law
(generally called “Constitution”), in which all (particularly
the entire system of government) is governed by the supreme
law, in which only the people’s will (as defined through some
pre-specified institutional procedure, usually through a super-
majority voting mechanism) can supersede and change the
supreme law, in which changes can only be made infrequently
due to the difficulty of garnering the requisite popular support,
and in which there is separation of power, checks and balances
and an independent judiciary dedicated to legal reasoning
to safeguard the supremacy of the Constitution …. (Holmes,
1995: 270-271).
It is a generally established fact that Constitutions

can be written or unwritten nor must a Constitution be
found in a single document. In line with Oloka-Onyango’s
observation about Constitutions without Constitutionalism,
one can argue, that there can be Constitutionalism without
(written) Constitutions. Gregory Mahler’s view sums up this
discussion:
When we discuss Constitutional governments, then, we are
really not talking about whether there exists a single, specific
document; rather, we are interested in a kind of political
behaviour, political culture, political tradition, or political
history …. The forms may vary, but the behavioural results
are the same: limits are imposed upon what governments may
do (Mahler, 2000:28).
Good Governance
This chapter also captures developments related to good
governance and democratic development. The concepts of
good governance and democratic development are linked and
emanate from the practice of Constitutionalism. While the
two are less contested in terms of meaning and application,
they are nonetheless not completely free from definitional
contests.
Good governance can best be understood if it is first
clarified. Governance is defined as the process of decision
making and the process by which decisions are implemented.
For good governance to be realised, the following prerequisites
should be in place:
Participation
The participation of women and men in matters that affect
their lives is an important cornerstone of good governance.
Participation can be direct (through referenda, for instance)
or indirect (through elected representatives) and it implies
that citizens have the right to association and freedom of

expression. Any decisions by those in authority which are
taken without participation, amount to bad governance.
Rule of law
The rule of law assumes the existence of legal systems
that are fair and applicable to all without discrimination.
An independent judiciary, which is impartial and capable
of enforcing laws without fear or favour, is an important
prerequisite.
Transparency
This means that decisions are taken in a manner that adheres
to existing and well known rules and procedures. Both
freedom of information and expression are important when
discussing transparency.
Accountability
This means that the government, the private sector, civil
society organisations and other institutions, are answerable
to the public, which is the beneficiary of their decisions.
When decision makers are not answerable to the public,
their decisions can be arbitrary and, therefore, do not serve
the interests of the people. Accountability also relies on
the rule of law and transparency. Equity and inclusiveness,
effectiveness and efficiency, are the other important elements
of good governance.
The nexus between Constitutionalism and good governance
can be discerned from the elements of good governance as
Oyelowo observes:
The Constitution as the fundamental law or basic law
defines the limits of exercise of powers conferred on the
organs of government established by it. Thus, the practice of
Constitutionalism aims at limiting the excesses of government,
government officials and elected office holders within the

limits of the law, and through governance that is based
on legislations, regulations, rules and practices developed
pursuant to the provisions of the Constitution (Oyelowo,
2007:7).
Democratic Development
There are many definitions and descriptions of democratic
development just as there are many authors and writers
defining it. To understand the meaning of democratic
development, one needs to first define “democracy.” John
Stephens defines democracy in terms of election rights and
rights to freedom of association and expression. For him
democracy is realised in:
… regular free and fair elections of representatives on the basis
of universal suffrage; responsibility of the state apparatus to
the elected representatives of the people; and guarantees for
freedom of expression and association (Stephens, 2005:2).
Other authors go beyond elections to other values like the
respect for human rights, the rule of law and meaningful
political participation. According to the United States Agency
for International Development (USAID) policy on democracy
and governance:
Democracy is fundamentally rooted in the proposition that
political sovereignty originates with citizens. The authority
of the state is anchored in the will of the people, and a just
and legitimate government can only be based on their explicit
consent. In modern democracies, this consent is mediated
through representatives, chosen by means of regular, periodic
free and fair elections, based on universal suffrage and a secret
ballot. Enduring democratic systems are characterised by
meaningful political participation and peaceful competition;
protection of basic human rights; lawful governance; and
strong democratic values. (USAID, 1991: 3).
On the other hand, George Perlin explains the meaning of
democracy from its historical origins. For him, democracy is
closely linked to the development of liberal political thought

in the 18th century:
Democracy as we know it in the established democracies is
a system of governance that is organised to give effect to the
values embedded in the tradition of liberal political thought
that gave rise to the democratic transformations which
began at the end of the eighteenth century. Whatever the
particular forms they have assumed, all contemporary liberal-
democracies are committed to the values of freedom, equality,
and justice as they have evolved in that tradition. Thus,
democratic development may be defined as the establishment
of institutions and processes of governance that promote and
protect liberal-democratic values (Perlin, 2008: 1).
In sum, all the authors above seem to agree that democracy is
a composite term that incorporates other values like the rule of
law, freedom, fair and free elections, equality, accountability,
respect of human rights, and the rights to freedom of expression
and association, among others.
Finally, it is important to have an understanding of the
link between Constitutionalism and elections. Through
elections, citizens exercise the right to choose those who will
exercise power and authority on their behalf. Constitutions
provide the mechanisms for holding elections. Implementing
those mechanisms faithfully enhances the realisation of
Constitutionalism. Matlosa sums this nexus in very clear
terms:
The linkage or interface if you wish, between Constitutionalism
and elections is fairly strong for the two processes are critical
for democratic governance. Elections are governed by the
Constitution of a given country. The Constitution thus forms a
firm foundation for elections as a fair and legitimate method of
selecting and replacing governments. In other words, ballots
rather than bullets form a credible Constitutional instrument
for governance and regime change (Matlosa, 2001:9).
Review of Constitutional Developments in 2010

The 2010 General Elections
The general elections in 2010 for Tanzania Mainland comprised
of three types, namely: presidential; for the election of the
Union president; parliamentary; for the election of the Union
parliament; and civic; for the local government councils.
Below is a review of the elections and assessment of their
contribution to Constitutionalism.
Voter Registration
Voter registration is one of the prerequisites of fair and free
elections. It is through efficient and transparent registration
that one can know objectively the verifiable number of people
taking part in an election. Electoral fraud sometimes begins at
the stage of registration. Voter registration is normally done by
updating an existing permanent voters’ register. The integrity
of the process is very important. Serious flaws were detected
during the registration of voters for the 2010 elections.
The National Electoral Commission (NEC) organised two
rounds of voter registration in the Mainland to update the
permanent voters’ register. According to statistics from NEC,
19.6 million Tanzanians registered for the 2010 elections
against a projected population of 40 million based on the 2003
estimates. This number, however, was contested by Chama
cha Demokrasia na Maendeleo (CHADEMA), which claimed
that the number may have been exaggerated to increase
the electoral strength of the ruling party-CCM. The party
questioned how a population of 44 million1 citizens could
have half of its members as adults. The National Bureau of
Statistics (NBS) revealed that the number of those eligible to
vote was higher than the number of the registered voters. One
source pointed out:
According to the NBS, some 20,445,725 people have attained

the voting age, with Dar es Salaam leading all the other regions
with 1,786,290 eligible voters. This is equivalent to 8.7 per
cent of all Tanzanians, legally allowed to vote. However,
the number of eligible voters released by the NBS does not
tally with that of those registered by the National Electoral
Commission (NEC). The NEC has enrolled about 19.6 million
voters for Sunday’s General Election (Kimboy, 2010).
The domestic observer group, the Tanzania Election Monitoring
Committee (TEMCO), noted:
Equally noteworthy is the recent development in which
CHADEMA publicly disputed the NEC-released total figure
of 20.1 million registered voters countrywide. After analysing
the report, CHADEMA leaders said that the figure might have
been “cooked”. They argued that considering that according to
statistical projections over 18 million people would be under
the age of 15, and given the possibility of over 10 per cent of
the population not having registered to vote, it was practically
impossible for nearly half of the country’s population
(estimated at 40.6m) to be eligible voters. In response, NEC
chairman Justice Lewis Makame dismissed the estimates as
based on the outdated national census figures of 2002. Further,
he invited all people who disputed the NEC figures to visit
the council offices and study the permanent national voters’
register (TEMCO, Domestic Conservation of Tanzania, 2010
General Elections, Tri-weekly Observation Report - October
1-15, 2010).
The European Union Election Observation Mission (EU-EOM)
viewed the issue in a somewhat different manner, noting:
According to a population projection for 2010 published by the
National Bureau of Statistics, the population over 18 years old,
eligible to register as voters, was estimated to be 20,507,186.
The number of registered voters in the Mainland (19,694,055)
corresponded to a capture of 96 percent of the total number
of eligible voters. The NEC acknowledged that this figure was
indeed unrealistic and that there were a number of ineligible
voters found in the register. However, since there is no reliable
national civil register, and the majority of citizens do not have
any identification document, many citizens registered as voters
just to obtain an identification card. Thus, the voter register
may reflect an inflated figure although it does not seem to be a

deliberate attempt by any political party to take advantage but
rather a consequence of social conditions (EU, 2010:18).
Another electoral grievance related to the fate of about 60,000
university students who were expected to have difficulties
voting since the opening of universities was deferred to the
end of November, four weeks after the general elections.
The government justified this by claiming that because of
costs incurred towards elections, it lacked sufficient funds
for student loans. CHADEMA, however, dismissed the
explanation as unsatisfactory, arguing that the move aimed
at disenfranchising the students who have traditionally voted
for the opposition.
Worse still, as the election day approached, other
irregularities emerged. The names of registered voters were
displayed only seven days to the elections, resulting in little
time for defects to be rectified. Furthermore, it was reported
that some voters were excluded from the register; some
names wrongly spelt, while others were completely missing
(TACCEO, 2010:4).
Voting Day, announcement of results and the right to appeal
One of the greatest shortcomings of the entire electoral process
was the unprecedented low voter turn-up. Out of 20,137,303
registered voters, only 42.84% (8,626,283) voted, which was
very low compared to an average of 80% in previous years.
Despite this and other shortcomings, observer groups returned
a positive verdict. One group noted:
We commend the National Electoral Commission and the
citizens of Tanzania for engaging in an overall peaceful and
transparent election. The position of the Tanganyika Law
Society(TLS) Observation Mission is that the general election
held on October 31, 2010 met the criteria for fair and free
elections, in that the hallmarks of a democratic election
were met and upheld by the government. Voters were not

intimidated or coerced into voting, all political parties were
able to engage in campaigning prior to the elections, and the
actual elections were conducted in an open and transparent
manner (TLS, 2010).
According to EU-EOM:
Election day was peaceful and generally orderly. Overall,
polling stations procedure was applied evenly across the
country and voting was conducted in a calm manner with
only a few incidents of a minor nature in over 549 observed
polling stations. Unfortunately, the secrecy of the vote was
compromised in 12 percent of observed polling stations and
EU observers reported that in 20 percent of cases the layout
of the polling station did not guarantee the secrecy of the vote
(EU, 2010:3).
The announcement of results started on November 2, with
the final results of the presidential election announced on
November 5, six days after elections were held. According to
the official NEC results, the CCM candidate, Jakaya Mrisho
Kikwete, secured a total of 5,275,899 (61.16%) of the votes,
while his closest challenger Dr Wilbrod Slaa of CHADEMA
scooped 2,271885 (26.34 %) votes.
Immediately after the announcement of the results,
CHADEMA claimed that they did not reflect the will of the
people. They asserted that CCM had used the state intelligence
apparatus to manipulate the vote. These grievances could not
be pursued since the Constitution prohibits challenging of
the results of the presidential poll. This anomaly has been
observed as one of the weaknesses of the electoral system.
The TLS was very critical of this in its election observation
report, stating:
There is no legal remedy in the event that one would wish
to challenge the outcome of the presidential election. Article
41(7) of the Constitution of the United Republic bars any
proceedings to challenge the election of the president once
the commission has declared the results subsequent to the
counting of the votes. It is the view of the TLS that there seems
to be no rational basis for this section to stand particularly since
it allows room for abuse and the provisions for impeachment
do not offer the necessary safeguards to remedy such abuse
and certainly does not serve as a disincentive. Furthermore,
the fear that the seat of the presidency would remain vacant
for an undetermined period of time is unfounded because a
specific procedure and timeframe can be provided for within
the Constitution; moreover, the office of the presidency would
remain filled by the incumbent until a court decision is handed
down (TLS, 2010: 36).
TLS concluded that denying citizens and competitors the right
to contest the results of a presidential election only serves to
stifle democracy and the people’s confidence (TLS, 2010:36).
On this matter, the Constitution of Tanzania is undemocratic
and departs from respected international human rights
jurisprudence. ICCPR, which is a universally accepted
standard for political and civil rights, has a very clear position
on the right to unlimited remedies in electoral processes. It
provides:
There should be an independent scrutiny of the voting and
counting process and access to judicial review or other
equivalent process so that electors have confidence in the
security of the ballot and the counting of votes. (United
Nations Human Rights Commission, General Comment no. 25
on the International Covenant on Civil and Political Rights,
paragraph 20).
This position has also been embedded by the African Union
AU through the African Union Declaration on the Principles
Governing Democratic Elections in Africa. Section IV(7),
states that, “Individuals or political parties shall have the right
to appeal and to obtain a timely hearing against all proven
electoral malpractices to the competent judicial authorities in
accordance with the electoral laws of the country”.
CHADEMA had to find other ways of pushing forward their
grievances. CHADEMA MPs walked out of parliament during
its inauguration when President Kikwete was giving his

address, the first time this has happened in the history of the
country. This was a continuation of similar actions; the party
also previously boycotted the swearing in of both President
Kikwete and Prime minister Mizengo Pinda. CHADEMA Slaa
insisted that the party would not recognise the newly elected
president:
I said this before NEC announced the results and we wrote to
them trying to explain our complaints, but they did not even
respond. Therefore, the only way was to reject the results and
not to recognise the president…. The whole election process
was not conducted under a conducive environment; we have
been warning NEC on this matter, but no important measures
have been taken . (The Citizen, November 17, 2010).
The Post-election environment: The ‘Arusha Killings’, freedoms

of assembly and expression
The post election environment was calm to a large extent and
there were no major events that threatened the nation’s peace
and security. Post-election violence (PEV) has characterised
recent elections in Africa, with key examples being Kenya
(2007); Zimbabwe (2008) and Cote d’ivoire (2010-2011). In
the first two of these situations, power-sharing arrangements
were used to restore peace. In the last situation, Laurent
Gbagbo, the former president who was defeated in the ballot,
but chose to unilaterally declare himself winner, was ousted
from power. Fortunately, the few complaints reported in
Tanzania did not result in major incidents.
The general elections were followed by the election of
mayors and council chairpersons in local governments.
These elections were equally highly contested by the two
leading parties, CCM and CHADEMA. The elections were
largely peaceful, although, the mayoral elections in Arusha
Municipality turned violent. First, CHADEMA boycotted the
elections, which took place on December 18, 2010, in protest

against the CCM’s decision to send Mary Chitanda, a CCM
special seats’ MP from Tanga, to represent Arusha Urban.
CHADEMA saw this move as a ploy by CCM to increase the
number of its councillors who would vote for the mayor
and his/her deputy. Local area MPs are also recognised as
councillors in their respective councils. Subsequently, the
CCM candidate won the election.
Additionally, CHADEMA organised a demonstration for
January 5, 2011 and notified the officer commanding district
(OCD) of Arusha Municipality on December 31, 2010. Their
application was accepted in writing on January 4, 2011.
In what may have been the possible cause of violence, the
Inspector General of Police (IGP) called off the demonstration,
24 hours before commencement, citing security concerns.
CHADEMA, however, proceeded with the demonstration as
planned (Tairo, 2011).
Using unjustifiable force, the police dispersed the
demonstrators using tear gas, rubber bullets and other means
at their disposal (including live bullets). This unwarranted
show of force resulted in three deaths, numerous injuries and
massive destruction of property. In addition, 49 people were
arrested and 31 of them taken to court, among them CHADEMA
national chairman and secretary general, Freeman Mbowe
and Slaa, respectively. The incident provoked subsequent
discussions in the country about the need for Constitutional
guarantees of freedom of assembly and expression as a
deterrent to the ramifications of the enormous powers wielded
by law enforcement agencies especially the police. One critic
noted:
This basic right could not be subjected to the whimsical and
arbitrary actions of the country’s police force whose basic duty
was to protect citizens as they went about exercising their basic
human rights, including the right to hold peaceful political

demonstrations and rallies. It was thus unexpected that the
police would have used such excessive force in breaking up a
demonstration that they knew was going to take place led by
the national leaders of a legal political party, some of whom,
including the chairperson... were members of parliament
(Lwaitama, 2011).
It must be stated that the egregious violation of some of
the most Constitutionally protected rights went against
the Constitution. Freedom of assembly and expression
are protected in no unclear terms by Article 20 (1) of the
Constitution of the United Republic of Tanzania. While it
is true those rights are not absolute and can be limited for
public interest or in the interest of others (Article 30(1) of
the Constitution), the circumstances in the Arusha scenario
did not warrant any limitation. The police acted even in utter
disregard of the law that regulates their activities. The Police
Force Auxiliary Services Act, 2009, permits lawful assembly
and demonstration provided that the police are notified at least
48 hours in advance (Section 43 (1). This is what CHADEMA
did. There is a contradiction, however, in that the police can
waive freedom of assembly arbitrarily. Section 43(2) of the law
provides that where a person submits a notification, he may
proceed to convene, collect, form or organise the assembly
or procession in question as scheduled unless and until he
receives an order from the police officer in charge of the area,
directing that the assembly or procession shall not be held as
notified. Even though this power exists, the IGP who exercised
it in this case was not the officer mandated by law to do so.
It is because of limitations of this nature and the enormous
powers that state organs wield over fundamental rights and
freedoms, that there have been demands from all fronts to
have the country’s Constitution rewritten.
The road to a new Constitution?

The 2010 elections may not have altered Tanzania’s political
equation much; however, they created some impetus for agitation for
Constitutional change by political parties and CSOs. While there have
been demands for Constitutional reform in the past, the realisation
by the opposition that the results of the presidential election could
not be challenged through courts of law seems to have propelled
some action. Furthermore, the limited independence of the NEC, the
issue of independent candidates and the contentious aspects of the
Union, are the other loopholes in the Constitution responsible for
the reform advocacy. CHADEMA’s MP John Mnyika was the first to
move formally a call for Constitutional reform. He submitted a letter
of information to the office of the Clerk of the National Assembly
on his plan to table a private motion in parliament (February, 2011)
initiating a debate on Constitutional reforms (“MP to seek People’s
Views on Law Review,” December 27, 2010).
However, government officials resisted the demands to
overhaul the Constitutional order. For instance, the justice and
Constitutional affairs minister, Celina Kombani, responded
that there was no need to overhaul the Constitution. Instead
specific amendments to the areas that the opposition had
problems with was favoured. She was quoted:
Let them come with something concrete and in writing,
showing which sections have a problem, why, and suggest the
alternative. The government should not be forced to respond
on these sensitive issues through reading newspapers. (Bernard
and Kagashe, 2010).
Subsequently, the leaders of the opposition and CSOs attacked and
dismissed Kombani’s views. For instance, CHADEMA chairman
expressed disappointment at the remarks and described it as
irresponsible of the minister to attempt to cheaply dismiss such a
national issue (Bernard and Kagashe, 2010). He stressed: “You don’t
sit in the office and wait for official complaints while it is obvious the
cry for Constitutional reform is a cry of the majority” (Bernard and

Kagashe, 2010).
His criticism was reinforced by that of an MP of the Civic
United Front (CUF) party who commented:
Who does not know the long cry of having a new Constitution?
We wrote a letter to President Kikwete when he took over
office in 2005; likewise to former president Benjamin Mkapa
before that, but nothing has been done. A new Constitution
will liberate all of us. Otherwise, we will continue guarding
our votes at polling stations during each election. Once we
close our eyes, our votes will be tampered with as was the
case with the presidential election during this year’s general
election (Mugubura, 2010).
Even though CCM was not initially enthusiastic about the
idea of a new Constitution, public pressure resulted in a shift
of position. This can be validated in light of a comment by
one of the top party officials:
CCM is willing to sit with other parties but they should
raise sensible arguments as to why we need to have a new
Constitution…. It is illogical if they are acting on pressure. We
need to have a sober debate devoid of vested interests (Qorro,
2010).
The Prime minister, Peter Kayanza Pinda, also voiced support
for the cause. He publicly advised the president as follows:
If you ask me, it is better to form a team which will comprise
a wide representation from the country to look into this issue
and if there is need, we should also send this issue to the
people themselves for a decision … there are issues such as
the formation of a free and independent Electoral Commission
and private candidature, to name but a few, which need to be
addressed…. (“Pinda to Advise Kikwete on New Constitution,”
The Citizen, December 18, 2010).
To pile more pressure on government for a new Constitution,
CUF organised a peaceful demonstration in Dar es Salaam on
December 26, with the aim of tabling their recommendations
to the Ministry of Justice and Constitutional Affairs. Although
the demonstration was dispersed by the police and few of the

CUF supporters arrested, some of the party’s leaders managed
to evade the police and presented their recommendations to
the ministry. One of them later stated:
We are happy because we have implemented our Constitutional
responsibility. The draft that we have submitted should be a
challenge to the government to make sure that at the end of
the day we have a new Constitution… A new Constitution will
benefit everybody, including the police who are now eager to
please the state while ignoring their cardinal role of serving
all (“Chaos as CUF Members Call for New Constitution,” The
Citizen, December 28, 2010).
The proponents of the new Constitutional dispensation scored a clear
victory when the president signalled that the review process would
commence. In his routine end of month address to the nation, he
stated:
We have agreed to start the process of reviewing our
Constitution. I have hereby decided to appoint a Constitutional
review commission, which will be headed by a seasoned
lawyer.… We inherited the existing Constitution from the
founders of our nation. We need a new Constitution that will
guide our nation to the next 50 years by safeguarding peace,
national unity and greater development (Reuters, January 1,
2011).
Whether this was a capitulation by the president and CCM, or a clever
move to be in charge of the agenda of reform, became a moot point
in the ensuing debate. Thereafter, discussions were commenced to
realise the agenda of a new Constitutional dispensation.
Legislation with Impact on Constitutionalism and

Good Governance
The Elections Expenses Act, 2010
This law was enacted to deal with corruption and related
vices during elections. Specifically, it provides for control of
campaign financing and contains provisions against a litany
of other electoral malpractices. The purpose of the Act is

stated as:
An Act to make provisions for the funding of nomination
process, election campaigns and elections with a view to
controlling the use of funds and prohibited practices in the
nomination process, election campaigns and elections; to make
provisions for allocation, management and accountability of
funds and to provide for consequential and related matters
(Election Expenses Act, 2010).
The Act contains provisions which are novel to Tanzania’s
electoral system. Some of these provisions are contained in
the box below:
• Disclosure of funds before election campaigns.
• Limitation of election expenses to a maximum amount to be
set by a minister or an official responsible for elections.
• Limitation on voluntary donations with a requirement that
all voluntary donations be declared to the registrar and
deposited in a special election account of the party.
• Restriction of foreign funding for election expenses.
• NGOs, Community based organisations (CBOs), Faith based
organisations (FBOs) to disclose sources and amounts of
funds to be used for election related expenses.
• All nomination expenses to be incurred by the party and
not candidates.
• All political parties to declare any funds for election
campaigns.
• All expenses or payments made in respect of elections be
vouched, billed and receipted.
• Restricted apportionment of election expenses incurred by
a political party.
• Prompt reporting on expenses incurred by candidates
during elections, within 30 days from the polling day and
90 days by the political party.
• An obligation of every candidate, political party, NGO, FBO
and CBO who participated in the election activities to keep
records of funds, names, postal, physical and electronic

addresses of donors.
• Mandatory auditing of accounts and submission of audited
accounts to the registrar of political parties.
• Failure to disclose to lead to disqualification.
• Prohibited unfair conduct, including corruption and
inducement whatsoever of voters.
• Unconscionable funding, including payment or giving of
food, drinks, entertainment of voters is illegal. Acceptance
of such is an offence.
• Conveyance of voters prohibited.
When the law was passed, many people had high expectations
that it would finally reduce corruption and corrupt elements
in a situation, where bribery of voters is widespread. A
commentator on the Corruption Tracker System, a website,
made the point that “if enforced, the Act will tame the
lugubrious corrupt tendencies which had come to characterise
Tanzania’s elections with politicians flouting election rules and
regulations with impunity as they moved around dolling out
freebies and goodies to eligible voters and in some instances
election managers in exchange for votes” (Corruption Tracker
System, Tighter noose hangs on Tanzania’s Corrupt Elections:
Corrupt politicians will now have to look over).
On the other hand, others were worried that the Act
was another tool designed by the ruling party to weaken
its opponents. The law, for example, limits parties from
fundraising 90 days before general elections. As Dr Slaa of
CHADEMA expressed concern:
We don’t have a lot of resources like the ruling party, CCM, and
thus largely depend on friends to run our party elections. You
can never know when someone will be able to give a hand.
Restricting us from fundraising 90 days before the general
elections is a clear ploy to keep us out of the elections.
The law does not seem to have been used effectively during the
2010 elections. Even though some individuals were arrested
and charged with seemingly obvious acts contravening the law,
not a single individual was convicted. This led to questions in
the aftermath of the elections of whether there was sufficient
goodwill to enforce it.
The Prevention and Combating of Corruption Bureau
(PCCB) admitted it faced difficulties in implementing
the Act. PCCB director general, Edward Hoseah, told the
bureau’s annual conference that it was difficult to enforce
the law for many reasons, including the lack of political will
among national leaders, and lack of adequate resources for
investigating corruption cases (“Give PCCB the Right Tools,”
The Citizen, Saturday, March 12, 2011).
Cases with a Bearing on Constitutionalism and Good
Governance in 2010
Leading court decisions made during the period under review
that had a bearing on Constitutionalism and good governance
are analysed in this section. These are the Attorney General
v. Reverend Christopher Mtikila, Civil Appeal No, 45 of 2009
(hereinafter, the AG v. Rev. Christopher Mtikila), Prof. Dr Costa
Ricky Mahalu and Grace Alfred Martin v. The Hon. The Attorney
General, Misc. Civil Cause No. 35 of 2007 (hereinafter, Costa
Mahalu and Another v. AG), and Arbitration matter No. 15947/
VRO between Dowans Holdings SA (Costa Rica) and Dowans
Tanzania Limited v. Tanzania Electric Supply Company Limited
(hereinafter called the Dowans case or Dowans v. TANESCO).
The Attorney General v. Rev Christopher Mtikila Civil Appeal
No, 45 of 2009
The application was an appeal by the AG against a decision
of Lugakingira J. (as he then was) in Misc. Civil Cause No.
5 of 1993 wherein Reverend Mtikila challenged, among

other matters, the prohibition of independent candidates for
presidential, parliamentary and civic elections, which was
introduced by the Eighth Constitutional Amendment Act,
1992. For purposes of reference, the amended articles of the
Constitution read, thus before the said amendment:
“No person shall be eligible for election to the office of
president of the United Republic unless he:
(a) has attained the age of forty years; and
(b) is otherwise qualified for election as a Member of
the National Assembly or of the (Zanzibar) House of
Representatives.
The Eighth Amendment retained the above paragraphs but
re-numbered them as (b) and (d) respectively, and added new
paragraphs (a) and (c) which state:
(a) is a citizen of the United Republic by birth;
(c) is a member of and sponsored by a political party.
Mtikila asked court to declare the above amended provision
unconstitutional as it openly violated Article 21(1) of the
Constitution of the United Republic which reads:
Every citizen of the United Republic is entitled to take part
in matters pertaining to the governance of the country, either
directly or through representatives freely elected by the people
in conformity with procedures laid down by, or in accordance
with, the law.
Several arguments were advanced and considered by the
High Court, but in the end Justice Lugakingira fell short of
declaring the impugned provision unconstitutional. However,
he made a declaration that independent candidates be allowed
to contest just like those enjoying the support of political
parties. He ruled:
For everything I have endeavoured to state and notwithstanding
the exclusionary elements to that effect in Articles 39, 67 and 77
of the Constitution as well as Section 39 of the Local Authorities
(Elections) Act, 1979, I declare and direct that it shall be lawful
for independent candidates, along with candidates sponsored

by political parties, to contest presidential, parliamentary and
local council elections. (p. 3).
Having gone through the different arguments given by
counsel from both sides and three amicus curiae present, as
well as through a number of domestic and international court
decisions, the Court of Appeal observed that it was improper
for courts to amend the Constitution, a task that is normally
the preserve of parliament. By doing so, courts would be
in direct violation of the cardinal principle of separation of
powers. In its own words, the Court of Appeal unequivocally
observed:
In our case, we say that the issue of independent candidates
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 . The decision on whether
or not to introduce independent candidates depends on the
social needs of each state based on its historical reality. Thus,
the issue of independent candidates is political and not legal
(p. 48).
Like the High Court, the Court of Appeal chose not to discuss
whether the provision, which banned independent candidates,
was unconstitutional because declaring an article of the
Constitution unconstitutional would necessitate removing it
from the Constitution, something they deemed legislative and
not adjudicative and hence clearly outside the mandate of the
courts of law.
On the other hand, the judgment of the Court of Appeal
was considered positive in many respects including in matters
of human rights. The court cited many provisions of human
rights instruments, which though not strictly followed in the
ratio decidendi, became very important in the obiter dictum,
which recommended Constitutional amendments in line with
the spirit of those instruments. The court clearly advised the
attorney general and parliament to take appropriate legislative

measures to allow independent candidates to run in elections
without restrictions:
However, we give a word of advice to both the Attorney
General and our Parliament: The United Nations Human Rights
Committee, in paragraph 21 of its General Comment No. 25, of
July 12, 1996, said as follows on Article 25 of the International
Covenant on Civil and Political Rights, very similarly worded
as Art 23 of the American Convention on Human Rights and
our Art 21: ‘The right of persons to stand for election should
not be limited unreasonably by requiring candidates to be
members of parties or of specific parties.’(p. 48).
It further stated:
Tanzania is known for our good record on human rights and,
particularly our militancy for the right to self-determination
and hence our involvement in the liberation struggles. We
should seriously ponder that comment from a committee of the
United Nations, that is, the whole world (pp. 48-49).
The above recommendation by the highest court was
considered very important; particularly in light of the country’s
contemplation of Constitutional reform. The recommendation
of the court should also be taken seriously by those who will
eventually take the mantle of spearheading the Constitutional
review process.
Prof. Dr Costa Ricky Mahalu and Grace Alfred Martin v. The
Hon. The Attorney General, Misc. Civil Cause No. 35 of 2007
This case arises from an earlier case involving Prof. Costa
Ricky Mahalu and Grace Alfred Martin (herein the petitioners)
brought under the Basic Rights and Duties Enforcement
Act, Cap. 3 RE 2002, Articles 13 (1) and 30 (3) and (4) of the
Constitution of the United Republic of Tanzania and S. 2(1)
and (3) of the Judicature and Application of Laws Act, Cap
358, RE 2002.
The petitioners were charged in the Resident Magistrate’s

Court of Dar es Salaam at Kisutu in Economic Crimes Case
No. 1 of 2007. The petitioners were granted bail by the trial
magistrate’s court, a decision which was heavily contested by
the respondent republic through an application for revision by
the High Court. The respondents were aggrieved by conditions
of bail imposed on the petitioners which did not adhere to the
strict provisions of Section 36 (4) (e) of the Economic and
Organised Crimes Control Act (EAOCCA), Cap 200 R.E 2002
(herein, the impugned provision). The said Section makes it
mandatory that:
… in admitting to bail an accused person charged with an
economic offence involving property whose value is ten
million shillings or more, such an accused person shall be
required to pay cash deposit equivalent to half of the value
of the property involved and secure the rest of the value by
execution of a bond (as per the judgment of Mwarja, J., p. 2).
While the respondents submitted an application for revision
at the High Court, the petitioners simultaneously petitioned
the High Court to challenge the Constitutionality of Section
36 (4) (e) of EAOCCA on the following grounds:
(1) That Section 36 (4) (e) of the Economic Crimes Control
Act, (sic) Cap 200. R.E 2002 is unconstitutional in that
it violates the principle of presumption of innocence as
clearly stipulated under Article 13 (6) of the Constitution
of the United Republic of Tanzania.
(2) That Section 36 (4) (e) of the Economic Crimes Control Act,
(sic) Cap. 200 R.E 2002 is discriminatory and abrogates the
noble principle of equality before the law in that it enables
those who are rich to pay and buy their freedom while those
who are poor, and may be innocent, remain languishing in
prison until their [cases are] finally determined and that it
provides separate conditions for bail for specific accused
persons under the Act as opposed to general conditions
under the Criminal Procedure Act applicable to other
accused contrary to Section 13 (1), (2), (3) and (4) of the
Constitution of the United Republic of Tanzania.
(3) That Section 36 (4) (e) of the Economic and Organised

Crimes Control Act, (sic) Cap 200 R.E 2002 violates the
Constitutional doctrine of separation of powers enshrined
in Article 4 and 13 (6) (a) of the Constitution of the United
Republic of Tanzania in that by enacting that provision, the
legislature has tied the hands of the judiciary by forcing the
latter to impose conditions regardless of the circumstances
of the case and regardless of the substance of the common
law relating to bail (as per the judgement of Mwarja, J.
p.3).
The Article of the Constitution which is said to have been
violated reads: “No person charged with a criminal offence
shall be treated as guilty of the offence until proved guilty of
that offence” [Article 36 (6) (b)].
Furthermore, the petitioners argued that presumption
of innocence is abrogated by Section 36 (4) (e) of EAOCCA
which requires the petitioners to deposit an amount of money
which is equal to half of the value of the property involved in
the charge.
The respondents on their part argued that while it is a true
and respected principle of law that an accused person has the
right to be presumed innocent until proven guilty, denying
him/her bail does not in a way suggest that the said person
has been adjudged guilty. Examples were given of offences
such as murder, treason and armed robbery where bail is
statutorily denied to accused persons but they have not been
considered to be convicts before the conclusion of the trial.
The respondents in defence of their position further asserted
that the right to presumption of innocence is not absolute as
per the provisions of the Constitution. The respondents relied
on Article 30 (2) of the Constitution which states:
It is hereby declared that the provisions contained in this part
of this Constitution which set out the principles of rights,
freedom and duties, do not render unlawful any existing
law or prohibit the enactment of any law or the doing of any
lawful act in accordance with such law for the purpose of – (a)
Ensuring that the rights and freedoms of other people or of
the interests of the public are not prejudiced by the wrongful
exercise of the freedoms and rights of individuals.
The High Court quickly agreed with the state that restrictions
on bail conditions cannot in any way be equated with
interference of the Constitutional right to presumption of
innocence. The court gave details of previous judgements of
the Court of Appeal as well as those from other jurisdictions
to support its position. The court was, for example, inspired
by an old and often cited decision in DPP v. Daudi Pete (1993)
TLR 22, where the same court varied a decision of the High
Court of Tanzania which found Section 148 (5) of the Criminal
Procedure Act, which prohibits bail to persons accused of
armed robbery, to be unconstitutional. The Court of Appeal
observed:
Section 148 (5) (e) does not violate Article 6 (b) of the
Constitution which prohibits treating an accused person like a
convicted criminal because denying bail to an accused person
does not necessarily amount to treating such a person like a
convicted criminal.
In the end, therefore, the decision of the High Court was
clearly in line with existing domestic jurisprudence on the
matter.
We do not find much difficulty in answering that because the
issue whether denying an accused person bail amounts to
treating him as a convicted person or not has long been settled.
We wish to start by stating that as a general principle, although
bail is a right derived from Article 15 of the Constitution,
that right is not absolute. Under sub-article 2 (a) of the said
article, that right may be derived where the law finds it to be
reasonably necessary (as per the Judgment of Mwarja, J., pp.
10-11).
The High Court then proceeded to decide on the remaining

grounds of the petition, beginning with the third and
concluding with the second.
With regards to ground three, in which the requirement for
the accused to an amount of money which is half the value
of the property was in contention, the petitioners had argued
that the fact that the law prescribes the conditions for bail
means that the courts have to act within the law set up by the
legislature; meant that the courts in this case operate at the
whims of the legislature, thereby interfering with the doctrine
of separation of powers. In responding to this matter, the High
Court relied on precedent set by the Court of Appeal in the
matter, in the case of Daudi Pete (supra):
...in our view the doctrine of separation of powers can be said to
be infringed when either the executive or the legislature takes
over the function of the judicature involving the interpretation
of the laws and the adjudication of rights and duties in disputes
either between individual persons or between the state and
individual persons. Legislation which prohibits the grant of
bail to persons charged with specified offences does not in
our view amount to such a takeover of judicial function by the
legislature (In Costa Mahalu, p.18).
The consequent decision in the High Court was, therefore,
that there is nothing wrong with the legislature enacting a
provision which lays conditions for the granting of bail. The
High Court concluded:
If a provision of law which denies bail to an accused person
is not unconstitutional as shown above, a provision which
imposes mandatory conditions to be met by an accused person
can certainly not be held to be unconstitutional. We hold that
it is within the powers of the legislature to enact a provision of
law which it deems necessary in the grant of bail by the courts
(pp. 19-20).
On whether fixing bail conditions deprives the accused
person the right to be heard on his capacity to pay the amount
demanded, the High Court held that courts need not pre-
occupy themselves with the problem of whether conditions of
bail are suitable to the accused persons. What courts normally
do is to impose a bail condition as provided by the law, and
very much on a take-it-or-leave-it basis.
The court then proceeded to consider the last ground of the
petition, namely whether the impugned section of the law is
discriminatory and amounts to a class legislation, given the
fact that it divides accused persons between the rich who can
pay for the amount required and the poor who are likely to
rot in jail for failing to meet bail conditions. On this ground,
court made a ground-breaking decision which is important
for Constitutional development. Court relied on several Court
of Appeal decisions including the often-cited Ndyanabo v.
Attorney General (2001) 2 E.A 485, where the court struggled
with an electoral law which required persons who wanted to
challenge electoral results in court of laws to deposit shs 5
million with the courts. In the Ndyanabo case, law was found
to have exceeded the equality provisions of the law but instead
of the law being declared unconstitutional, court directed
the executive to amend the said law in order to remove the
defective provisions.
Having paid attention to the arguments advanced by both
sides, and having examined a score of domestic and foreign
precedents on the matter, the court reached a clear conclusion
that indeed, the impugned provision is discriminatory (and
hence in violation of Article 13(5) of the Constitution)
because the ability to deposit the required amount of money
determined the outcome of the bail application. Those who do
not have the capacity to deposit the required amount would
remain in jail. The court decided finally:
... In exercising the court’s powers under this Article of the

Constitution, we have considered the nature of the defects
in the impugned provision. As has been found above, the
provision does not make the relevant offence under the Act a
non-bailable offence. It, however, discriminates against those
who cannot afford to get the requisite amount of money to
deposit in compliance with the mandatory condition stipulated
in that provision. We find it appropriate, therefore, to order
that such a defect be rectified so that the right to bail can be
enjoyed equally by any person charged under the Act without
any discrimination. The government through the Attorney
General is, therefore, hereby given opportunity to take, within
one year from the date of this ruling, necessary steps to effect
rectification by parliament, of Section 36 (4) (e) of the Act so
as to remove the discriminative aspect in that provision. In the
event of failure to comply with this order, the provision shall
as from the date of expiry of the said one year, become null
and void. (pp. 40-41).
The judgement of the High Court was ground-breaking in
that the court purposely interpreted the provisions of the
impugned law, testing it as it were, against the provisions of
the Constitution with regard to equality before the law and
non-discrimination. The finding was clear; the impugned
provision of EOCCA was found to be in variance with the
Constitutional provisions. However, instead of declaring
the provision unconstitutional and hence null and void,
the court took the bureaucratic route of giving parliament
twelve months to rectify the anomaly. This is to say that the
defective provision will continue being in force and biting
discriminatively. This court obviously limited its power to deal
with legislative wrongs by attempting to avoid a confrontation
between the judiciary and the legislature. Unfortunately, this
legal diplomacy can only work to the detriment of citizens who
will be forced to suffer unequal treatment by a discriminatory
law.
The problem though is that it is extremely difficult for

courts to provide a remedy because the requirement is a
creature of the same Constitution which creates them. Article
30 (5) of the Constitution is very straightforward:
Where in any proceedings it is alleged that any law enacted
or any action taken by the government or any other authority
abrogates or abridges any of the basic rights, freedoms and
duties set out in Articles 12 to 29 of this Constitution, and the
High Court is satisfied that the law or action concerned, to
the extent that it conflicts with this Constitution, is void, or
is inconsistent with this Constitution, then the High Court,
if it deems fit, or if the circumstances or public interest so
require, instead of declaring that such law or action is void,
shall have power to decide to afford the government or other
authority concerned an opportunity to rectify the defect found
in the law or action concerned within such a period and in
such manner as the High Court shall determine, and such law
or action shall be deemed to be valid until such time the defect
is rectified or the period determined by the High Court lapses,
whichever is the earlier.
Among other issues, this case proves that the Constitution
has many weaknesses that need to be rectified. It is, therefore,
important that the country embarks on re-writing its
Grundnorm. Ideally, many of the defects which are apparent in
the present Constitution will be addressed so that the country
can get a Constitution which guarantees the enjoyment of
human rights and fundamental freedoms by citizens without
restrictions and bureaucratic processes.
Arbitration matter No. 15947/VRO between Dowans Holdings
SA (Costa Rica) and Dowans Tanzania Limited v. Tanzania
Electric Supply Company Limited
This arbitration case is of relevance to good governance and
Constitutional development in the country.
Sometime in November, 2008, Dowans filed a suit for
arbitration against TANESCO in the Paris based International
Chamber of Commerce (ICC) claiming damages for alleged

repudiatory breach of contract and for partially unpaid capacity
charges for the electricity it was contracted to produce and
supply. Dowans’ claim was in the order of $149 million. The
legal wrangling had its history in an even more controversial
matter. Dowans limited inherited a power generation contract
from Richmond Development Company LLC. Richmond
had earlier on been awarded a tender to generate emergency
electricity, but in circumstances which were later established
by a parliamentary probe committee to have been scandalous
and dubious. It was found that Richmond did not have the
capacity and expertise to produce the said electricity and
worse still, the government procurement procedures had
been flouted in process of awarding the contract. Following
pressure from the public amid ensuing electricity problems,
opposition politicians in parliament forced an investigation
under the chairmanship of Kyela legislator, Dr Harisson
Mwakyembe. The probe established that Richmond lacked the
capacity to service the contract. According to Mwakyembe,
“the Richmond Development Company LLC, which won the
tender and eventually signed a contract with TANESCO on
June 23, 2006, lacked experience, expertise and was financially
incapacitated”http://(www.tzaffairs.org/2008/05/report-on-
richmond-scandal/ [accessed 21 January 2011]).
When the report was read in parliament, the then prime
minister, Edward Lowassa, took responsibility and resigned
amid protests that judicial processes had not been followed
and, therefore, that he had been denied the right to be heard.
Lowassa had this to say when giving his resignation speech
in parliament:
…let me congratulate Dr Harrison Mkwakyembe, the

chairman of the select committee for his ostentatious
presentation. It was very ostentatious. For their opinions, they
have done a good presentation. But I am standing here to put
the record straight that I am not satisfied with how they have
done their job (http://www.tzaffairs.org/2008/05/report-on-
richmond-scandal/ (accessed 21st January 2011).
The premier’s resignation was quickly followed by that of
two ministers. By implication, the premier’s resignation, who is
the head of government business in parliament, automatically
meant President Kikwete had to dissolve cabinet. Interestingly,
when the new cabinet was constituted, most of the old serving
ministers were left out, a move most Tanzanians construed
to be Kikwete’s attempt to curb corruption. Although no
evidence has been adduced to show there was corruption in
the Richmond contract, the existence of serious flaws in the
tendering process cannot be ignored. Notably, while political
infighting between the different camps in CCM that developed
after the 2005 elections may have played a part in this case,
serious lack of transparency in the manner the said contract
was awarded cannot be ignored.
In the meantime, as these events unfolded, Richmond
assigned the contract to Dowans because of concern over the
negative publicity. The parliamentary investigatory team had
recommended termination of the contract with Richmond on
the basis that the firm was not a legally registered company
and, the agreement was therefore a nullity ab initio. The same
reasoning was used to terminate the contract with Dowans
since it had inherited a contract that never was.
Dowans sought the intervention of the International
Chamber of Commerce (ICC) to arbitrate. The ICC ordered
TANESCO to pay Dowans shs 94 billion and an additional
7.5% as interest for any delayed payment of the principal

sum. When the issuance of the said award became public,
concerns were raised as to the authenticity of the award amid
concerns that corruption may again have played a big part in
it. In a surprise move, the government accepted liability and
opted not to challenge the ICC award, leading to even more
suspicion. Questions surrounding the ownership of Dowans
also raised tension. Even when the names of the directors
were finally unveiled, the dominant opinion was that Dowans
could as well be owned by very powerful individuals in the
country who used foreigners to conceal their real identities.
Finally, the law firm hired to advise the government on the
legality of the Richmond contract, Ms Rex Attorneys, was also
among the first to advise the government to heed the ICC’s
verdict and pay Dowans as appropriate. This was another
perplexing development as indeed Rex Attorneys is known to
have advised the government to terminate the contract with
Richmond. No plausible explanation was thereafter given for
the sudden u-turn on the part of Rex Attorneys. The question,
which remained unanswered, was how, if the contract with
Richmond was illegal, it got purified and legalised when
transferred to Dowans.
The Dowans case illustrated the link between corruption,
good governance and Constitutionalism. Corruption is one
of the worst manifestations of bad governance and good
governance is one of the most important cornerstones
of Constitutionalism. The other way of looking at it is to
recognise the role that Constitutional democracy plays for
good governance and the fact that good governance is an
important antidote to corruption.
While there is no proof that corrupt practices were
involved in the contract between TANESCO and Richmond
and in the subsequent award of damages to Dowans by the

ICC, the circumstances in all cases suggested serious lack of
transparency and accountability on the part of government
and public officials entrusted with the duty of ensuring that
government contracts are executed with public interest in
mind. Again, serious issues of accountability arose with the
public officials entrusted with the duty of ensuring that the
nation gets the badly needed electricity. In the Richmond
case, the resignation of Lowassa and the two ministers may
have been a positive act of accountability, but this should not
have been the end of the story. The government was duty-
bound to explain to the public how the contracting had been
done and legal redress should have been pursued. Besides,
the circumstances in which the ICC gave the award to Dowans
raised suspicion as whether the matter had been adequately
presented by the office of the attorney general.
Conclusion
The year 2010 was important as far as Constitutional
development in Tanzania is concerned. There were
both progressive and retrogressive developments. On a
positive note, the year evidenced healthy political contest
between different parties seeking power. In the history of
multipartyism, the 2010 election was the most contested
with the culture of political competition seeming to firmer
take root among Tanzanians. Long gone are the days when
it was considered unbecoming to challenge the ruling party
and the deeds of those in power. The elections also presented
opportunity for a discussion on Constitutional reform with
pressure building from opposition parties, civil society and
ordinary Tanzanians. The government’s acknowledgement
that Constitutional reform was an important agenda was a

positive development.
On a negative note, the country experienced some of the
worst incidents of post-election violence. This was obviously
a departure from the tranquillity that Tanzania has enjoyed
over the years. The incidents of corruption witnessed during
the year dampened the spirit of Constitutionalism and good
governance. Corruption eats the fabric of the society and
diverts important resources from development projects.
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Chapter Six
The Annual State of

Constitutionalism in Uganda
2010: Achievements, Challenges
and Prospects
Jackie Tumusiime*
Introduction
A Constitution is commonly understood as principles, ideas
and rules that govern the affairs of a state. A Constitution
may be written, as is the case in Uganda and Kenya in East
Africa or unwritten, as is the case in the United Kingdom
(UK) in Europe. Besides creating, organising and distributing
government powers, a Constitution ensures that such power is
exercised legitimately.131 Therefore, political and other events
that take place in a polity can be understood on the basis of
their relationship to Constitutional principles. This is largely
the basis upon which this chapter is written.
The chapter highlights the events that occurred in Uganda
in 2010 and examines how they shaped Constitutionalism
* A professional lawyer, she works as a research assistant with The Human

Rights and Peace Centre (HURIPEC), Makerere University. She has taken
professional courses in human rights, governance for development in
Africa and international criminal law.
131
Winfred H.H., et al. The American Constitution: Its Origins and Development
(NewDelhi: McGraw-Hill Publishing Co. Ltd, 1991), p.56.
139
and governance in the country. Similarly, the chapter entails a

critique of the manner in which key Constitutional principles
were observed in Uganda during the year, achievements
made on Constitutionalism and examines the challenges
and prospects in ensuring Constitutionalism and good
governance.
Notably, the year officially commenced with President
Yoweri Museveni’s address to the nation on January 1.
The president assured Ugandans that the rule of law, good
governance, democracy and Constitutionalism, continued to
form the basis of governance in the country and promised
better performance in 2010.
However, the year saw intensified demands by political
party activists and civil society for electoral reforms. For
instance, the Inter-Party Coalition (IPC) called on government
to disband the “newly” appointed Electoral Commission (EC)
in light of the shortcomings in the discharge of its functions
during the 2006 general elections. The Supreme Court findings
in the case of Rtd. Col. Dr. Kiiza Besigye v. Yoweri Museveni
and the Electoral Commission132 that there were widespread
electoral malpractices and shortcomings on the part of the
EC in organising the elections precipitated the demands to
disband the EC. The demands not only dented the credibility
of the EC, but also cast doubt on its ability to conduct the
2011 general election in a free and fair manner.
On the other hand, the legislature, in conformity with its
mandate to make laws on matters relating to peace, order,
development and good governance of Uganda,133 enacted new
laws and amended some of the existing ones (relevant laws
will be reviewed in a later section).
132
See Rtd Col Dr Kiiza Besigye v. Yoweri Museveni and the Electoral
Commission, Presidential Election Petition No. 1 of 2006.
133
See Article 79(1) of the Constitution.
The Annual State of Constitutionalism in Uganda 2010 141
Debate surrounding the Anti-Homosexuality Bill 2007

continued both within and outside the country. Whereas human
rights defenders interpreted the Bill as a likely violation of the
right to privacy134 and the principle of non-discrimination,135
the government and the Church of Uganda vowed to support
the fight against homosexuality through this Bill. The debate
was mainly focused on whether homosexuality is compatible
with human rights and whether Uganda would embrace
Western liberal values and ideas of modernity in the context
of the country’s specific cultural and moral norms.
On the human rights front, with the then anticipated February
2011 elections, there was increased suppression of critical
voices and intimidation from security agencies countrywide.
Tension in the country increased with announcements by
parliament’s public accounts committee and a cross-section of
opposition politicians that military officers were being trained
together with members of the Uganda Police Force (UPF) at
Kabamba Police Training School solely for the purpose of
harassing members of the opposition.136 This was considered
an affront to freedom of expression and assembly. It raised
doubt as to the commitment of governance institutions (in
this case, security agencies) in upholding the rule of law and
protecting citizens. It is important to remember that in the
aftermath of the September, 2009 riots, which were triggered
when government stopped the Kabaka of Buganda, Ronald
Muwenda Mutebi, from visiting Kayunga district (one of his
counties) to attend activities organised by the youth, citing
security reasons, security agencies, especially UPF instituted
134
See Article 27.
135
See Article 21.
136
NTV, News edition, September 18, 2010.
‘preventive deployment’, to warn potential demonstrators and

prevent any public assembly from getting out of hand.137
Additionally, several media reports pointed to the
arbitrariness in resource allocation, a key concern in
Constitutionalism generally, and resource management in
particular. For instance, Vedemosti, a Russian business daily
newspaper, reported that the Government of Uganda had
entered into an agreement with Moscow to buy six Su-30-
MK2s fighter jets at a cost of United States dollars (USD)
$108 million (equivalent to Uganda shillings 1.7 trillion),
considered too high for the equipment and unnecessary since
the wars in the Great Lakes region had abated. It was further
alleged that due to the prohibitive cost, the government had
considered using crude oil as a means of payment.138
Furthermore, various ministries reportedly sought
supplementary budgetary funding, which was taken to be
evidence of wasteful expenditure139 and created wide public
discontent. The indications of poor resource governance, as
widely reported in the media, pointed to lack of political will
to adhere to the principles of transparency and accountability
in resource allocation, with executive power being exercised
137
Ashanut Okille, et al. Towards the Uganda 2011 Elections: An Assessment
of Conflict Risks and Mitigating Mechanisms, Research and Publication
Sponsored by the Deepening Democracy Program, DANIDA, (2010), p.54.
138
Sheila Naturinda, “Government Asks Russia to Explain Jet Story,” Daily
Monitor, April 8, 2010, p.8.
139
It was noted, for instance, that by July, 2009, State House had spent more
than shs.88 billion from the national budget, compared to shs 82 billion
allocated to the agriculture ministry. The agricultural sector directly
employs an estimated twenty four (24) million Ugandans, just over 95%
of the working population. See Yasin Mugerwa, “Ministries Run out of
Cash,” Daily Monitor, February 14, 2010, p.12
not for the benefit of the common good of Ugandans but in the
service of sectarian interests.140
On the other hand, the judiciary performed impressively in
some cases, where it reclaimed its independence,141 although
it was criticised for failing to sufficiently protect the rights of
women.142
The above introduction is followed by a brief exposition
of Constitutionalism, which creates the conceptual link with
the rest of the paper which is organised in five sections as
follows: resource management, legislation, electoral reforms,
human rights protection and judicial decisions.
Constitutionalism
Constitutionalism requires, especially in countries such as
Uganda where the Constitution is declared to be the supreme
law of the land,143 that rules and principles (entrenched in the
Constitution) are followed. In Uganda, the 1995 Constitution
(as amended) is premised on the following principles:
No body or political party is infallible or has a monopoly of
wisdom and state bodies should be democratically and legally
accountable and should promote good governance in the
general interest, rather than in their personal interests or the
interests of a limited section of society;
Uganda is a representative democracy. The principle of
universal adult suffrage and the right to vote as entrenched
140
During this period, there were reports concerning the emerging oil and gas
sector, the alleged lease of Lake Kyoga and the release of the Commonwealth
Heads of Government Meeting (CHOGM) report by parliament’s Public
Accounts Committee that implicated several senior ministers in alleged
embezzlement of funds, ibid.
141
See Attorney General of Uganda v. Rtd Col Dr Kizza Besigye and 10
Others.
142
See Mifumi (U) Ltd and 12 Others v. The Attorney General and Kenneth
Kakuru where courts were criticised for failing to sufficiently protect the
rights of women.
143
Mulira Peter, Constitutionalism in East Africa: Constitutional Development
in Uganda (Kampala: Fountain Publishers, 2008), p.145.
in the Constitution are important in effectuating this form

of democracy. The existence of an independent, impartial
and competent electoral commission in the country is a key
requirement to bolster the legitimacy of a representative
democracy;
Civil liberties and other individual human rights are inherent
and residential in nature and are not granted by the state;
Separation of powers of the arms of government. This doctrine
is closely associated with John Locke and Montesquieu, who
believed that the accumulation of legislative, executive and
judicial powers in the same hands results in tyranny. In order
to preserve political and social liberty, it is essential for the
Constitution to ensure that the three arms of government are
independent of each other.
Separation of powers is achieved by restricting a person in
one arm of government from holding a position in another
arm, restricting organs from exercising functions of one or two
of the other organs and prohibiting one organ of government
from controlling any one of the remaining organs.144
The rest of this chapter examines the achievement of
Constitutionalism and good governance as weighed against
the above Constitutional principles. Therefore, where due
process and conduct was adhered to by the state and its
organs in attaining its objectives, Constitutionalism and good
governance will be deemed to have been promoted. However,
where due process and conduct was circumvented, it will be
argued that Constitutionalism and good governance were in
the process derailed.
144
G.W. Kanyeihamba, Constitutional Law and Development in Uganda,
(2000), p.147.
Constitutionalism in 2010: Achievements, Challenges

and Prospects
Resource Management
One of the objectives of the African Charter on Democracy,
Elections and Good Governance is to nurture, support and
consolidate good governance by promoting democratic
culture and practice, building and strengthening governance
institutions and inculcating political pluralism and tolerance
(Article 2(6)). It has become a truism that “good governance is
essential for successful development.”145 Good governance can
be defined as a process by which power is exercised without
explicitly stating the ends being sought.146 Governance refers
to best practices that shape how resources are used and who
has a say in those decisions.147
The discovery of oil in Uganda presents both opportunities
and challenges in the area of governance. Even though it was
welcome news, the discovery also led to anxiety, with questions
being raised about the legitimacy of ongoing negotiations
and whether they meet the standards of transparency and
accountability. Some researchers have warned that it will
dramatically raise the stakes for control of the state, thereby
intensifying political and electoral competition and increasing
the likelihood of violence.148 On the other hand, it has already
caused increased struggle for land resources, especially in
Bunyoro, where the oil fields are situated.
145
UN Resolution 2000/64.
146
Hyden Goran and Olowu Dele, African Perspective on Governance, Africa
World Press, (2000), p.6.
147
Fukuda-Parr Sakiko and Ponzio Richard, “Governance, Past, Present and
Future: Setting the Governance Agenda for the Millennium Declaration”
(Background Paper on the Human Development Report), 2002.
148
Odendaal Adreis and Isoob Moses, Preparing for the Future: Potential
Conflict Scenarios and New Challenges to Peace in Uganda, 2010.
In response to some of these concerns, the government

provided a framework for the development of the oil sector.
According to the National Oil and Gas Policy for Uganda
2008, four oil fields were discovered in the Kaiso Tonya
area, with an estimated three hundred (300) million barrels
covering less than 5% of the entire prospective belt. The
Petroleum (Exploration, Development, Production and Value
Addition) Act was enacted in 2010. However, this law left
many questions unanswered, particularly on issues of access
to information as well as inadequate standards pertaining to
fiscal policies and state participation. Even more critical was
the absence of a clear-cut policy for the equitable distribution
of the expected revenue from the oil and gas sector and lack
of a framework for environmental protection. The adequacy
of the existing legal and policy frameworks will continue
to be a challenge in the management of this resource and,
particularly, negotiations and the issuance of contracts for
exploration and exploitation.
Already, concerns have been expressed over the government’s
refusal to disclose to the public the nature and content of the
Production Sharing Agreements (PSAs) signed with respect to
the pending exploration of the oil. In response to the growing
public discontent regarding the non-disclosure of the PSAs,
the government maintains that it negotiated the best possible
deal for Ugandans and that disclosing their content would
only make it difficult to renegotiate new contracts. However,
renegotiations of such contracts are possible and have
hkappened in Bolivia, Kazakhstan, Ecuador and Nigeria. It
also emerged recently that the Democratic Republic of Congo
(DRC) negotiated better PSA terms than Uganda did.
In addition, a 40-page report titled “Contracts Curse:
Uganda’s Oil Agreements Place Profit before People” predicts
that oil firms are set to make extraordinary profits from the oil
exploration. The report observes that the agreements will only
exacerbate poverty, increase human rights violations, entrench
the power of the military and distort the economy.149
As an example, even during the exploration phase, evidence
emerged that Tullow Oil Company manipulated the legal
machinery on issues of waste management and environmental
protection around key sites in Buliisa.150 Thus, Tullow Oil
commenced exploration work in these key areas without
having completed the environmental impact assessment
(EIA) exercise and, consequently, without the approval of the
National Environment Management Authority (NEMA), as
required by law. This backhanded manner of developing the
country’s resources will in the long run jeopardise the right of
Ugandans to a clean and healthy environment as guaranteed
by the Constitution.151 Worryingly, lack of accountability and
adherence to procedure is likely to continue once the oil begins
to flow. These concerns are compounded by information from
the whistleblower website Wiki Leaks claiming that ministers
received bribes during negotiations with oil companies.152
Transparency is built on the free flow of information regarding
processes and the management of resources and institutions.
In essence, therefore, citizens as legitimate stakeholders
should have the opportunity to access all relevant information
for purposes of promoting accountability and participation.
149
Opobo Timothy, “Transparency in Oil Dealings is the Way to Go,” Daily
Monitor, February 23, 2010, p.12.
150
Taimour Lay, “Ugandans Should Fight Resource Manipulation,” Daily
151
See Article 39.
152
“Wiki Leaks implicates Ugandan Officials,” December 10, 2010 available at
http://www.timeslive.co.za/africa/article809726.ece/Wikileaks-implicates-
Ugandan-officials
The Constitution requires good governance of resources

for the benefit of citizens. Article 237(2) (b) provides that the
government shall hold in trust and protect all natural resources
for the common good of its citizens. Good resource governance
is characterised by citizen participation, transparency,
accountability, and equitability. It requires that effective
mechanisms be put in place to manage public wealth. So far,
these values have not been evident in the management of the
nascent oil and gas sectors. Unilateral decision making by the
government officials defeats the requirements of sustainable
development, which is a Constitutional principle.
It should be emphasised that in dealing with state resources,
the government must ensure that political, social and economic
priorities are based on broad consensus in society and that
the voices of the poor and the most vulnerable are heard in
decisions over the allocation and development of resources.
Only then can the government make valid claims to Uganda
being a true democracy. Particularly important in this effort are
the roles of civil society and the private sector acting mutually
in consort with the state. All these three entities are viewed
as critical if sustainable development is to be achieved.153 The
role of the state should be to create a stable political and legal
environment conducive to sustainable development, while
civil society institutions and organisations act as facilitators of
political and social interaction and in so doing, mobilise groups
to participate in economic, social and political activities. In
this way, the needs of future generations will be reflected
in the current policies, while economic and social policies
would be responsive to people’s needs and aspirations.
153
United Nations Development Programme (UNDP), “Governance in Post
Conflict Countries: Management Development and Governance Division
Bureau for Development Policy,” available at http://magnet.undp.org/
Docs?crisis/monograph/monograph.htm, accessed on 20 October, 2010.
Furthermore, Uganda has experienced instances of arbitral

governance, where state resources are treated like personal
property by government officials. A case in point is the
controversy surrounding the alleged lease of Lake Kyoga
by the president or, before that, the alleged sale of Entebbe
International Airport to a Singaporean firm. Because of their
influence over the welfare of citizens and sustainability of the
nation as a whole, public officials are holders of public trust.
Thus, they are answerable for their actions and omissions.154
The public can and should demand answers to questions
about decisions and sanction public officials who do not live
up to their responsibilities. This will ensure that holders of
public trust act within the boundaries of the Constitution and
in a fair manner.155
Legislation
During 2010, a number of laws were enacted, while others
were amended. This section discusses specific laws and their
effect on Constitutionalism.
The Whistleblowers Protection Act, 2010
The enactment of the Whistleblowers’ Protection Act 2010156
boosted the fight against corruption. The act details procedures
by which individuals in both the public and private sectors
may, in the public interest, disclose information that relates to
irregular, illegal and/or corrupt practices as well as protection
against victimisation of persons who make such disclosures.
The act reinforces the principles of accountability and
transparency, critical facets of Constitutionalism and
democratic governance. Most notably, the tabling of the
CHOGM probe report before parliament in June, 2010 by
154
See Objective XXVI of the Constitution.
155
Human Development Report (2002),p.65.
156
Act No. 6 of 2010.
the public accounts committee (PAC) tested the efficacy of

this law as well as the government’s commitment in fighting
graft. The report implicated 28 ministers and public servants
in the misappropriation of shs 500billion. These included;
vice-president Gilbert Bukenya, minister for security Amama
Mbabazi, foreign affairs minister, Sam Kutesa and works
minister, John Nasasira. The report specifically recommended
prosecution for all those who were implicated.
Subsequently, donor pressure increased as donors had,
in an ultimatum, given the government up to October, 2010
to prosecute the senior government officials implicated in
the CHOGM scandal. This position was contained in the
Joint Performance Assessment Framework signed on May 3,
2010 between the Government of Uganda, the EU, the World
Bank and other donors. Under the framework, the donors
also required the government to develop and agree upon a
measurement framework, including indicators for improved
tracking of corruption trends.157
Additionally, the public and CSOs demanded prosecution
and resignation of those implicated. However, interference
from the president and conflicting interests among legislators
(based largely on political party affiliations), frustrated the
quest for justice, resulting in the failure to implement the
recommendations of the report.
At the heart of the CHOGM debate was the question of
whether the individuals implicated, especially key supporters
of the National Resistance Movement (NRM) would ever face
justice. Some MPs disowned the report claiming that it was an
opposition tool targeting key NRM personalities. In the final
157
Edris Kiggundu and Steven Kibuuka, “CHOGM, CID moves on VP, top
ministers,”TheObserver,May30,2010,availableathttp://www.observer.
ug/index.php?option=com_contentandview=articleandid=8708:ch
ogm-cid-moves-on-vp-top-ministersandcatid=78:topstories.
analysis, the CHOGM affair demonstrated the increasing levels

of partiality, political manipulation and impunity that have
impeded the fight against corruption and failure of institutions
to support and adhere to the rule-of-law. In essence, therefore,
institutions of governance such as parliament have in many
respects advanced individual at the expense of democratic
values critical in Constitutionalism.
The Prohibition of Female Genital Mutilation Act, 2010
On April 9, 2010, the Prohibition of Female Genital Mutilation
Act, 2010158 was passed into law. The Act seeks to protect girls
and women from the dangers of female genital mutilation (FGM)
and provides for the prosecution and punishment of offenders.
In so doing, the Act protects the rights to freedom from torture,
cruel, inhuman and degrading treatment,159 guaranteed by the
Constitution. It also reinforces Constitutional provisions which
prohibit any culture or custom that perpetrates inequality and
discrimination against women. FGM is particularly common
in north-eastern Uganda, among the Sebei Community, and
has in recent years been heavily criticised. The enforceability
of this law, however, remains a challenge due to cultural
beliefs among communities like the Sebei. Members of this
Community believe that FGM is a symbol of true womanhood
that critically defines the status of a woman in society. While
the enactment of the law is important, it is critical for the
government and other stakeholders to devise extra-legal and
social mechanisms through which discriminatory cultural
practices can be eradicated.
The Domestic Violence Act, 2010
As a result of the intense debate on the prevalence of domestic
violence in Uganda, the president assented to the Domestic
158
Act No. 5 of 2010.
159
See Articles 24 and 44(a).
Violence Act on March 17, 2010. The Act criminalises domestic

violence and prescribes sanctions against offenders, thereby
guaranteeing the victims’ Constitutional rights to dignity
and freedom from torture, cruel, inhuman and degrading
treatment.160
The Land (Amendment) Act 2010
This law was also finally enacted and is a milestone for
Constitutionalism in Uganda. It provides for legal protection
against unlawful evictions by private individuals and entities,
a key aspect in the enjoyment of the rights to property, land
and housing as guaranteed by the Constitution.161
The Act makes it mandatory for any person attempting to
evict a lawful or bonafide occupant of registered land or a
person claiming interest in customary land, to first obtain an
eviction order from court.162 This requirement is protective
of tenants, especially vulnerable groups such as children,
women, the youth, the elderly, indigenous people and ethnic
minorities. It guarantees that all persons are protected against
arbitrary land evictions. The Act criminalises illegal evictions
and requires that adequate and reasonable notice is given
before evictions can be carried out.163
However, there are key areas of concern, for instance, the
Act empowers the minister to determine the ground rent164
(there is no specific criterion for this determination) and there
is no right of appeal to the minister’s decision in this regard.
The criteria of determining the rent could include the location,
value and usage of the land, among others. In addition, under
the Constitution, district land boards (DLBs) are supposed
160
Ibid.
161
See Articles 26 and 237(1) of the Constitution.
162
See Section 32A (1) and 32B(1) of the amendment.
163
See Section 32B(1).
164
See Section 31 of Cap 227 as amended by S. 1(a) of the Amended Act.
to be independent in the performance of their functions;165

the minister’s involvement could, therefore, amount to
interference. The minister may also be perceived as political
and biased and, therefore, unable to make independent and
objective decisions.
Furthermore, the Act gives a six-month grace period within
which rent should be paid – a period which critics say is too
long a time, that it results in the deprivation of the landlord’s
right to receive rent and ultimately, his/her right to property
as Constitutionally guaranteed. It has been recommended that
the period be reduced to three months.166
In addition, the idea of bonafide occupants could be used
to facilitate people who have illegally occupied other people’s
land without their consent to acquire legitimate interest in the
occupied land. It is also not clear which court has jurisdiction
to issue eviction orders.
On the issue of customary interest in land, the law should
be clear on who has such an interest. Customary law is not
codified or written down and the Act will, therefore, cause
confusion as to who has customary interests and rights in the
land. The law should also indicate the grounds upon which
eviction of a person claiming an interest under customary
tenure is tenable under Section 32B.
Furthermore, the requirement for the court to state the
date by which a person is expected to vacate a piece of land
following an eviction order is not given for evictions under
customary tenure as is the case for lawful and bonafide
occupants.167 It is recommended that these shortcomings be
addressed in order to ensure effective operation of this law.
165
See Article 241(2).
166
Foundation for Human Rights, (FHRI), Annual Report, (2009),p.99.
167
Ibid.
The Public Order Management Bill, 2009

The fight for the rule of law and democracy as key facets of
Constitutionalism suffered a setback with the proposal of
the Public Order Management Bill, which sought to regulate
public gatherings and demonstrations. Although drafted
in 2009, discontent over the bill heightened in 2010 when
the Kampala Metropolitan Police chief, Andrew Sorowen,
announced that as a result of the impending threat of
terrorism, public gatherings would have to be sanctioned by
the inspector general of police (IGP). Despite this explanation,
critics saw the Bill as intended to infringe on civil liberties.
The bill requires any gathering of two or more people be
held only with the consent of the IGP. It sought to give the
police power to use force to stop rallies deemed “illegal”.
In effect, the Bill proposed to give the IGP and the minister
of internal affairs wide discretion and authority over the
management of public meetings. Crucially, it proposed to
reintroduce provisions of the Police Act, Cap 303, which
the Constitutional Court nullified in the case of Muwanga
Kivumbi v. Attorney General of Uganda.168 To this extent, it
contradicted Article 92 of the 1995 Constitution, which
prohibits the enactment of legislation designed to defeat or
overturn a judicial ruling. Furthermore, the bill sought to
regulate, not only the conduct of public meetings, but also
the content of discussions in such meetings, thus violating
the right to freedom of speech. If the Bill is enacted it would
place extensive and impractical obligations and restrictions169
on organisers of public meetings. This would have negative
168
Constitutional Petition N0.9/05.
169
For example, Section 7 of the Act requires a notice in writing of at least
7 days, but not more than 15 days before the proposed date of the public
meeting. In addition, notices should include the estimated number of
persons as well as clearance letter from the proprietor of the venue.
implications on the realisation of Article 43(2) of the

Constitution, which prohibits the imposition of limitations
by the state to human rights beyond what is acceptable and
justifiable in a democratic society. In addition, the bill, if
passed, would curtail the operation of political organisations,
the civil society and human rights defenders and, thus narrow
down political space and participation. Critics contended that
the Bill was meant to restrict activities of opposition political
parties ahead of the February, 2011 poll.
Press and Journalist (Amendment) Bill, 2010
This bill, dated January 29, 2010, proposed mandatory
registration and licensing of newspapers by the government
controlled Media Council. It proposed broad discretionary
powers for the council to revoke licences. Journalists who
breach the law would be subjected to heavy fines and up to two
years of imprisonment or both. Under the proposed law, the
Media Council would, in the process of exercising its powers
of registration and the granting or revocation of licences,
make determinations on the basis of broad and undefined
considerations such as the ‘social, cultural and economic
values of the newspaper’ as a precondition for granting a
licence, and whether the material published is prejudicial to
‘national security, stability and unity’ or ‘Uganda’s relations
with her neighbours or friendly countries’ or amounts to
‘economic sabotage’.
The wide discretion the bill proposed for the media council
would most likely be applied to violate the right to freedom of
expression, not only of journalists, but of Ugandans generally.
The right to freedom of expression includes the right not only
to impart, but to also seek and receive information and ideas of
all kinds. The media accordingly plays a key role in enabling
the exercise of these different aspects of the right to freedom
of expression not only by individual journalists and media

workers and those who wish to disseminate information and
ideas, but also by people for whom the media is a key source
of information.
Most importantly, the bill was published on the backdrop of
a consistent pattern of attacks by the government on freedom
of expression, especially press freedom. These attacks, to a
large extent, resulted in self censorship by the media, both by
the owners, who seek to protect their business investments,
and by individual journalists reluctant to risk their freedom.170
During 2010, there were over a dozen criminal court cases
involving journalists on charges that include criminal libel,
sedition and the publication of false news. Journalists had
also been subjected to arbitrary arrest, detention, torture and
other ill treatment.
Against this background, the proposed law offered the
government broad powers to silence media criticism of
government policies and actions. International organisations
such as Amnesty International, observed that the Bill would
extend and deepen existing widespread censorship of the print
media under the powers set forth in the parent law – the Press
and Journalists Act in force since July, 1995. Article 19 of the
ICCPR provides for the right to freedom of expression which
includes freedom to ‘seek, receive and impart information
and ideas of all kinds’. This right is also guaranteed under
Article 9 of the ACHPR. Uganda is a party to the ICCPR and
the ACHPR. Article 29 of the Ugandan Constitution provides
for the right of every Ugandan to ‘freedom of speech and
expression, which shall include the freedom of the press and
other media.’
While the proposed law permits certain restrictions on
the exercise of the right to freedom of expression, the ICCPR
170
Ashanut et al, op.cit.
stipulates that an interference with the right to freedom of

expression must meet a three part test as follows; (i) provided
by law, (ii) only for specified permissible purposes (which
include the protection of national security and public
order) and; (iii) must be justified as being necessary in the
circumstances of those specified purposes.
The Human Rights Committee, the body responsible for
monitoring states’ implementation of the ICCPR, has stated
in its Article 19 that “… when a State Party imposes certain
restrictions on the exercise of freedom of expression, these
may not put in jeopardy the right itself.” Article 43 of the
Constitution of Uganda, as already discussed, provides that
no person shall prejudice the fundamental or other human
rights and freedoms of others or the public interest. Under
Article 43(2), it is, however, provided that “… public interest
… shall not permit any limitation of the enjoyment of the
rights and freedoms beyond what is demonstrably justifiable
in a free and democratic society, or what is provided in the
Constitution.”
In light of the above provisions, it can be argued that the
restrictions proposed by the government on media freedom
were not in line with Constitutional as well as human rights
frameworks to which the state is a party.
Traditional and Cultural Leaders Bill, 2010
This bill attracted the greatest controversy in 2010. It sought to
regulate the activities of traditional leaders and operationalise
Article 246 of the 1995 Constitution. Section 9(2) of the bill,
which was contested the most, required that where there is
more than one traditional or cultural leader in the area of a
regional government, the position of the titular shall be held
by each of the traditional or cultural leaders within the area of
the regional government in rotation for one year at a time.
Most notably, it sought to prevent cultural leaders from

engaging in partisan politics. It also provided penalties in
case of violation. Ironically, although traditional leaders are
prohibited from engaging in partisan politics, they would
head regional governments which are themselves made up
of partisan politicians. Furthermore, closer examination of
the bill showed that out of the 21 proposed clauses, only
one was devoted to the only issue that the 1995 Constitution
stipulates. More importantly, majority of the provisions sought
to supplant the culture, customs, traditions, wishes and
aspirations of the affected people, rendering such provisions
unconstitutional.171
The bill was rejected by a number of stakeholders,
particularly in the Buganda region, where the requirement for
titular rotation would affect the very fabric of their culture,
customs and traditions. Even more importantly, discussion of
the bill exposed the increasing tensions that emerge in the
interactions between culture and politics in contemporary
Ugandan society.
Indeed, it is not clear as to when and how cultural leaders
should participate in politics. In particular, constructive
discourse on this bill requires a critical appraisal of the inter-
play between cultural pluralism and democratic values.
In order to promote cohesion, the arms of government – in
particular the judiciary and parliament – should clearly define
the criteria for recognition of cultural institutions as well as
the scope within which traditional leaders may positively and
legitimately participate in politics within the context of the
rule of law and Constitutionalism.
171
J. Oloka Onyango, “Traditional/ Cultural Leaders Bill is Unconstitutional,”
New Vision, January 13, 2010, p.15.
Human Rights Protection

The Rights to Equality and Freedom from Discrimination
and Privacy of the Person
According to the United Nations High Commissioner for
Human Rights, the true test of “good” governance is the
degree to which it delivers on the promise of human rights:
civil, cultural, economic, political and social rights. The
key question one would need to ask, therefore, is: are the
institutions of governance effectively guaranteeing the rights
to health, adequate housing, sufficient food, quality education,
fair justice and personal security?172 Without doubt, the
answers to these questions are indicative of the challenges or
achievements faced on the path to Constitutionalism in the
country.
The concept of good governance has also been clarified by
the work of the Commission on Human Rights in resolution
2000/64, which expressly linked good governance to an
enabling environment conducive to the enjoyment of human
rights and promoting growth and sustainable development.
The year 2010 was further shrouded in parliamentary
controversy when the “Anti-homosexuality Bill” tabled by
Hon. David Bahati as a private members’ bill in 2009, attracted
more debate from various stakeholders. It sought to inter alia
prohibit and penalise homosexual behaviour and related
practices in Uganda on the grounds that they constitute a threat
to the traditional family as a basic unit of society. The bill
proposed the death penalty as one of the likely sentences for
those found guilty of engaging in aggravated homosexuality.
The Church of Uganda and the government who supported
the bill asserted that homosexual practice or the promotion of
172
Statement available at http://www.unhchr.ch/development/governance-
01.html
homosexual relations is not protected as a human right and

vowed to fight the practice. Civil society and human rights
activists on the other hand, insisted that the bill infringed the
Constitutionally guaranteed rights to privacy and dignity of
those concerned.
The argument propounded by human rights defenders on
this issue was fundamentally flawed in view of Articles 31(1)
and 31(2)(a) under which a Constitutionally valid marriage
is that which is entered into between a man and a woman.
Marriage between people of the same sex is prohibited. The
makers of the Constitution were most certainly aware of the
possibility of Uganda being faced with a debate regarding
the sexual orientation of individuals, but were motivated by
public policy considerations in enacting the above mentioned
articles. It is, therefore, clear that the right to choose one’s
own sexual orientation was not in any way envisaged by the
makers of the Constitution.
Depending on which side of the moral divide an individual
situates themselves; it is possible for the bill to be viewed
as an affront on the rights to privacy and freedom from
discrimination guaranteed by the Constitution. At the same
time, it could be viewed as a necessary tool to preserve and
protect the family as the basic unit of society,173 and the
cultural values and practices that enhance the dignity of
Ugandans.174
In a related development, human rights defenders asked the
Constitutional Court to declare polygamy unconstitutional on
the premise that it is discriminatory and belittles women.175
173
See Objective XIX of the National Objectives and Directive Principles of
State Policy of the Constitution of Uganda, 1995.
174
See Objective XXIV.
175
Lominda Afedraru, “Activists Ask Court to Ban Polygamy,” Daily Monitor,
February 9, 2010, p.1.
The petitioners claimed that the practice of one man marrying

more than one wife violates the right to equality guaranteed
by the Constitution. Since the judiciary had been seen to be
promoting human rights by promoting progressive realisation
and application of human rights, it was considered likely that
it would decide the case in accordance with the norms and
aspirations of the people. For instance, while polygamy is
shunned by Christians, it is practiced by Muslims.
The nexus between cultural diversity and morality continued
to be a vexatious issue during the period of review in view of
the realisation of human rights, looking at some of the key
issues discussed in this chapter. Thus, the universality of
human rights principles continued to be tested. Within African
societies, including Uganda, culture in many respects connotes
identity, and, therefore, certain customary values and norms
may be at variance with “contemporary” human rights culture.
Yet, human rights principles emphasise equality and tolerance,
regardless of sex, religion or race. It is, therefore, important
that contemporary democracy should take into account the
intersections between human rights concepts and African
culture and provide standards through which inherent interests
can be reconciled. This nexus shall remain a critical challenge
for good governance and Constitutionalism in Uganda.
Freedom of Assembly
Equally contentious during 2010 was anticipated restriction of
the freedom of assembly under the Public Order Management
Bill.176 Specifically, the Bill provided that every person has
the right to assemble and demonstrate with others peacefully
and unarmed, and to petition authorities. The Bill, which,
was heavily criticised by CSOs and human rights activists,
stipulated that any gathering of three people or more, can
176
See Article 29(1) d.
only be legal if it is sanctioned by the IGP. Whereas it is true

that majority of the rights guaranteed by the Constitution are
not absolute,177 it was argued that the limitations on the right
to assemble contained in the Public Order Management Bill
could only withstand legal scrutiny if those limitations met
the objective test to which all limitations on rights are subject
under the Constitution.
According to Article 43(2) (c),178 public interest does
not permit any limitation of the enjoyment of the rights
and freedoms guaranteed by the Constitution beyond what
is acceptable and demonstrably justifiable in a free and
democratic society or what is provided in the Constitution.
The standard against which every limitation on the enjoyment
of fundamental rights and freedoms as set out in Article 43(2)
(c) is an objective one. This legal principle was enunciated in
the case of Onyango-Obbo and Anor v. The Attorney General179
wherein Mulenga, JSC. stated;
The provision in clause 43(2)(c) clearly presupposes the
existence of universal democratic values and principles, to
which every democratic society adheres. It also underscores
the fact that by her Constitution, Uganda is a democratic
state committed to adhere to those principles and values, and
therefore, to that standard. While there may be variations in
applications, the democratic values remain the same.
It follows, therefore, that under Article 43(2), democratic
principles and values are the criteria on which any limitation
on the enjoyment of rights and freedoms guaranteed by the
Constitution has to be justified. In proposing the impugned
177
The only rights from which no derogation is allowed are those embedded
in Article 44 of the Constitution. They are: freedom from torture and cruel,
inhuman and degrading treatment or punishment; freedom from slavery
and servitude; right to a fair hearing and the right to an order of habeas
corpus.
178
The Constitution of Uganda, 1995.
179
Constitutional Appeal No. 2 of 2002, pp.25-26.
bill, therefore, the legislators should have had regard to the

values and principles essential to a free and democratic
society.
For example, a leaf can be borrowed from the Supreme
Court of Zimbabwe,180 which formulated the criteria for the
justification of imposing limitations on guaranteed rights.
These include: the legislative objective which the limitation is
designed to promote must be sufficiently important to warrant
overriding a fundamental right; the measures designed to
meet the objective must be rationally connected to it and not
arbitrary, unfair or based on irrational considerations; and the
means used to impair the right or freedom must not be more
than necessary to accomplish the objective.
The Supreme Court of Zimbabwe was in this case dealing
with the fundamental right of freedom of expression, a right
that is closely connected to the right to freedom of assembly,
which is the subject of the current discussion.
It is submitted in view of the bill that freedom of assembly
is inherent and not granted by the state and, therefore, it is
the duty of all government agencies, including the police, to
respect and uphold this right. Article 43 protects the rights
of individuals, not only to individually form and express
opinions of whatever nature, but to establish associations of
groups of like-minded people to foster and disseminate such
opinions even when those opinions are controversial.
In addition, there is in every society tension between those
who desire to be free from annoyance and disorder on the one
hand, and those who believe that they have the freedom to
bring to the attention of their fellow citizens matters which
they consider important. Peaceful assemblies and protests
are a vital part of every democratic society. They can be a
180
Mark Gova and Anor v. Minister of Home Affairs and Anor [S.C. 36/200:
Civil Application No. 156/99].
very powerful tool and some of the rights and freedoms that
some countries enjoy today, were gained because some people
were prepared to protest infringement of those rights.181
Therefore, the manner in which any legal system strikes a
balance between the above mentioned competing interests is
an indication of the attitude of that society towards the value
it attaches to different sorts of freedoms. A society, especially
a democratic one, should be able to tolerate a good deal of
annoyance or disorder so as to encourage the greatest possible
freedom of expression, especially political expression.
As mentioned earlier, there was heightened debate on
the bill amid allegations that it was meant to restrict the
activities of opposition political parties ahead of the then
anticipated 2011 elections. All in all, whittling down genuine
political debate by giving the police the power to disperse
“undesirable” political rallies is not a legally recognised
legislative intention.
In conclusion, it cannot be denied that the legislative
objective, which was aimed at in proposing the Bill is not
sufficient enough to justify limiting the freedom of assembly.
The limitation (in event of enactment of the bill) was also
likely to be enforced through arbitrary and illegitimate use of
state organs, which is really unnecessary in achieving public
order. The Public Order and Management Bill did not meet the
criteria by which limitations of human rights can be justified
under the Constitution.
Freedom of Expression and the Right of Access to
Information
As Uganda prepared for the February 2011 elections, it was
important to consider what the political environment portended
181
Muwanga Kivumbi v. A.G, Constitutional Petition No. 9 of 2005, (Judgment
of Byamugisha, JA.)
for free expression and the right to access information. The

launch of “The Correct Line? Uganda under Museveni,”
authored by Dr Olive Kobusingye, presented an opportunity
for such reflection. The book is allegorical to George Orwell’s
“Animal Farm” which is about a group of animals that rebel
against the oppression they suffer at the hands of their owner.
However, when they achieve their freedom, they (rather the
elite among them) impose the same conditions they had
rebelled against in the first place. Political experts alleged
that the launch of the book was initially banned by the
government on the premise that it would tilt public opinion
in support for the candidature of Museveni’s main political
rival, Dr Kizza Besigye. The government thought it best to
keep the book away from the public domain in the hope that
the public would forget about it. Ironically, the move further
popularised the book. This event raised perturbing questions
about freedom of expression and the right of the public to
receive information, a sine qua non for democratic practice.
A democratic society should pride itself in providing avenues
for open expression by citizens, even though they may be
critical of the establishment.
Other political events compounded the effect of the above
democratic deficit. For instance, both the rights to freedom
of expression182 and access to information183 were curtailed
further as Uganda prepared for the 2011 elections. In one
incident, opposition political leaders Col Kizza Besigye and
Dr Olara Otunnu were blocked from appearing on radio
talkshows they had been slated for in their campaigns in
northern Uganda.184 The talkshows were abruptly cancelled
182
See Article 29 of the Constitution.
183
See Article 41 of the Constitution.
184
Muniini K. Mulera, “War not Answer to Democratic Deficit,” Daily Monitor,
February 1, 2010, pp.10 and 12.
by the respective radio managers, citing “orders from above,”

an expression which in Uganda is an ominous invocation of
a powerful directive, either by a well connected politician or
security personnel – if not the employer – that subordinates
are unable to challenge. It emerged that the owners of the
radio stations feared that their radio stations would be closed
down the same way Central Broadcasting Service (CBS)
radio station was, if they insisted on hosting the opposition
leaders.185 The key concern at this point in time was that
unequal access to voters would have a negative effect on
democratic debate and participation. Media experts warned
that such threats were closing up space for plurality of ideas
and forcing self-censorship of the media.186 Even donors such
as the EU, emphasised the need for unfettered access to the
media by all political players.
As the country prepared for the 2011 elections, the role of the
creative arts in politics became more pronounced. The use of
the arts for political expression can be traced as far back as the
colonial era. In the 1960s, the colonial government suppressed
the arts; especially in Buganda through the Buganda Arts Act
for fear that the arts would be used to echo defiance against
the oppressive rule of the colonialists. In 1967, playwrights
resorted to the arts to mirror their shock at the Buganda Crisis
that culminated in Kabaka Mutesa’s deportation to England
by the Obote government. In 1972, Dan Mugula, a song writer,
wrote a song titled “Taliwo” ridiculing the Obote government
for exiling Kabaka Mutesa I and allegedly killing him there.
185
The government ordered the closure of CBS radio station in September,
2009 following the riots which ensued when the Katikiro (Prime minister)
of Buganda Kingdom was blocked from attending a youth rally in Kayunga
district. CBS radio was closed on the premise that its employees had incited
the riots in which 27 people lost their lives and scores were injured.
186
Supra no. 27 above
Later, in 1990, Alex Mukulu wrote “Thirty Years of Bananas” a

satirical play about President Museveni’s government.
It is common for local artistes and stand up comedians to
satirise those in the political arena. Democratic Party (DP)
presidential aspirant Norbert Mao often began his campaign
rallies by dancing to “Stamina”, a song by a local artiste that is
said to contain political messages. By dancing to the song, Mao
was believed to be communicating to the electorate that only
he had the stamina to lead the country. Another such song,
“Another Rap” by the incumbent, Yoweri Kaguta Museveni,
aimed at winning the support of the youth. However, it was
also criticised as a diversion meant to focus the attention of
citizens away from real issues that required redress.
However, in Uganda, songs which deliberately promote
the opposition do not usually receive equal fair play on
radio and television stations compared to those in favour
of the incumbent. This is because of real or perceived fears
by the owners and programme managers of a backlash from
the government. A media house perceived to be sympathetic
to the opposition, for example, may lose out on advertising
revenue from the government and other private sector
institutions with a leaning to the incumbent. Unequal access
to the media, therefore, infringes on the right to expression
as Constitutionally guaranteed. For democracy to prosper and
use of different campaign strategies to be useful, there should
be equal access to the means of disseminating campaign
messages.
Electoral Reforms
The Need for Electoral Reforms
As Uganda inched closer to the February, 2011 polls, many
critics contended that the success of the poll would largely
hinge on the credibility of the EC. Under its Act,187 the EC

is inter alia mandated to ensure that regular, free and fair
elections are held. The Constitution, under which the EC is
established, guarantees the independence of this body.188 This
partly stems from the need to lend legitimacy to the EC which
may and can only be achieved through wide acceptance from
the citizenry. Such legitimacy may be derived from wide
perception of the competence, independence and impartiality
of the EC.
The conduct of previous elections under the EC was
wanting, to the extent that many looked at the success of the
2011 elections with pessimism. The 2006 elections pitted
President Museveni against his former personal physician
Rtd Col Dr Kizza Besigye. The events in the run up to these
elections stripped the electoral process of its legitimacy,
thereby eroding confidence in the institution. The arrest of
Besigye on what many saw as trumped up charges of rape and
treason, aimed at keeping him away from the campaign trail.
Similarly, the incongruous siege of the High Court by security
agents on 16 November, 2005 not only undermined the
legitimacy of the courts, but stripped the EC of its legitimacy
and capacity to hold free and fair elections.
The incompetence of the EC was further heightened by the
election petition filed in the Supreme Court by Dr Besigye
challenging the EC declaration that President Museveni had
won the 2001 and 2006 polls. In its ruling, the Supreme
Court conceded that there were glaring electoral malpractices
(stuffing of ballot boxes, turning away known supporters of the
opposition, multiple voting by single voters, evidence of pre-
187
The Electoral Commission Act, Cap 140, Volume 6, Laws of Uganda.
188
Article 62, ibid., provides that in the performance of its functions, the EC
shall not be subject to the direction of any person or authority.
ticked ballot papers and the harassment of voters)189 and non-

adherence to electoral laws, although the irregularities were
not fundamental as to affect the result. The decisions of the
Supreme Court have been largely criticised as undermining
of the provisions of the Constitution. The decisions only
worsened the credibility-deficit of the electoral body.
Not surprising, therefore, the re-appointment of Badru
Kiggundu as the EC chairperson and his team, despite
allegations (confirmed by the Supreme Court190) that the
2006 elections the team oversaw were rife with irregularities,
was followed by protests, demonstrations and demands for
an overhaul of the polls body and immediate resignation of
Kiggundu and his team as they were largely considered partial
to the incumbent. It is important to note that demonstrations
were violently disrupted by the police in a move that showed
an ever increasing reliance by the ruling party on force to
subdue dissent. This illegitimate use of state resources in the
name of maintaining “public order” showed the excessive
measures the NRM ruling party was willing to take in order to
secure a win in the 2011 polls and generally cast a dark cloud
over the fairness of the poll. It is argued that these events
served to weaken public confidence in the ability of the EC to
organise a free and fair election.
Further, the activities of the EC in the run up to the 2011
elections showed that the EC was an appendage of the ruling
party. While recruiting polling day supervisors, it was widely
reported by the opposition that the EC was hiring supporters
of the ruling party for the purpose of catering for the interests
189
See Besigye v. Museveni and Anor, Presidential Election Petition No. 1 of
2001.
190
See Besigye v. Yoweri Museveni and The Electoral Commission, Presidential
Election Petition No. 1 of 2006.
of the NRM on polling day.191 Opposition parties threatened

to petition the Constitutional Court to stop the elections from
being held on grounds of irregularities, including “ghost
names” (names of individuals who had since passed on) on
voter registers. However, this petition faced a challenge in
view of the Constitutional requirement for elections to be held
within 90 days before the expiry of the presidential term.
Uganda faces a daunting challenge in the search for genuine
democracy and rule of law. Embracing the human rights
based-approach, respect and tolerance for political pluralism,
is necessary to achieve this goal. Therefore, it is necessary to
look toward a deeper and broader entrenchment within our
society to ensure that the fight for democracy is not in vain.
According to the Institute for Democracy and Electoral
Assistance (IDEA), full democracy cannot exist in the absence
of an independent, impartial and effective election monitoring
body (EMB).192 An independent EMB is determined by its
composition; the security of tenure of its members; functions;
financial autonomy; methods of appointment, professional
competence of its secretariat and lucidity of policy and
decision-making processes.
According to the Kriegler Commission,193 the success of an
EMB may be measured by the transparency of its processes,
191
Sheila Naturinda, “Electoral body accused of hiring NRM supporters,”
Daily Monitor, February 22, 2010, p. 3.
192
IDEA, (2002). “International Electoral Standards: Guide for Reviewing the
Legal Framework and The Role of the Election Commission of India in
Strengthening the Largest Democracy in the World,” an article presented by
Sharma Neelam and Ashok Sheema at the annual meeting of the Southern
Political Science Association, January 3, 2007, available at http://www.
allacademic.com/meta/meta/p143288-index.html, accessed on October
16, 2010.
193
A commission set up in Kenya to determine the role of Kenya’s Electoral
Commission in orchestrating the violence following the December, 2007
polls.
simplicity and accessibility of its procedures and services,

espousal of principles of equity and equality in ensuring free
and fair elections, assertions of independence, preparation for
activities and enforcement of decisions and processes.194
IDEA suggests that the body should comprise professionals
familiar with the country’s election framework and that a
number of them should have background knowledge in law.195
Yet, members of the civil society or those from the judiciary
might be more suitable for appointment. This is in addition to
ensuring that the appointment process is impartial.196 It has
been suggested that the responsibility of appointing members
of the body should be given to a body of high standing such
as the Judicial Service Commission (JSC) as is the case in
countries like Botswana. In Uganda, there is need for a team
comprising representatives from political parties, civil society
and legal professional bodies such as the Uganda Law Society
(ULS), to be constituted into a panel of an impartial body to vet
proposed candidates for appointment to the commission.197
In view of the preceding points of reference and suggestions,
the current electoral framework in Uganda necessitates
reform, if the country is to support its claim to be a democratic
nation.
The Presidential Elections (Amendment) Act, 2010
The Presidential Elections Act, 2005 was amended (Section
27(1)) to prevent the use of government resources by
candidates during campaigns198 and a penalty of 48 currency
points or imprisonment, not exceeding two years or both
194
Christopher Mbazira, (2009), “Reform Overdue: Making the Case for
Electoral Restructuring in Uganda,” HURIPEC Working Paper No. 2, p. 4.
195
IDEA (2002), pp.39-40.
196
Ibid.
197
The Human Rights and Peace Centre (HURIPEC),(Workshop Report on
Preventing a Kenya Happening in Uganda, June 2010), p.5.
198
See Section 8(a) of Act 14 of 2010.
imposed.199 However, the amendment is defeated by Section

27 (2) of the principal Act, which still allows the incumbent
to use government facilities, which are ordinarily available to
him by virtue of his office, during campaigns. The minister
responsible for public service has the mandate of furnishing
parliament with a statement of all state resources that are
ordinarily at the president’s disposal.200 While the Constitution
authorises parliament to make laws regulating the use of public
resources and institutions during election campaigns,201 the
above mentioned provision defeats the spirit of Article 21(1)
of the Constitution, which makes all persons equal before
the law. By giving the president the advantage of using state
resources for campaigns, the principle of fairness falls flat on
its face since the use of state resources gives undue advantage
to the incumbent.
The said Act was also amended to enable the EC to make
special provisions for persons in operational areas such as
soldiers and other security personnel, to vote.202 The list of
such areas has to be published in the official gazette. Though
a positive amendment, the challenge foreseen was that such
restricted areas would not be accessible to election observers
on polling day. The controversy surrounding this provision
arose from the fact that some army restricted areas such as
the so-called “safe houses,” as elaborately pointed out by
Kampala Central MP, Hon. Erias Lukwago, are not accessible
to the public and are also not gazetted areas. As such, there
was a possibility that electoral malpractices, if any, would go
unnoticed by election observers on polling day.
In addition, there would be no one to ensure that the inmates
in those safe houses actually got the opportunity to cast their
199
See Section 8 (b), Ibid.
200
See Section 27 (3) Presidential Elections Act, 2005.
201
See Article 67(4), Constitution of Uganda 1995.
202
See Section 12 of Presidential Elections (Amendment) Act, 2010.
vote. The Constitutional implications of this situation could

be very severe. For instance, the principle of secret ballot203
would be violated since some of these areas are not open to
the public. Secondly, the right to vote as guaranteed by the
Constitution for every Ugandan204 would be open to violation
for those individuals who are detained in safe houses. Such
a scenario would be a deplorable violation of the people’s
right to express their will and consent on who shall govern
them and how they shall be governed through regular, free
and fair election of their representatives.205 It was against this
background that Hon. Erias Lukwago sought the orders of
court to designate a particular polling area for soldiers.
The Political Parties and Organisations (Amendment) Act
No. 4 of 2010
The Political Parties and Organisations Act, 2005, was
amended providing that the government shall contribute funds
or other public resources towards the activities of political
parties or organisations represented in parliament. In respect
of elections, the government would contribute to political
parties on an equal basis, while in respect of their normal
day-to-day activities; the contributions would be determined
by the strength of each political party in parliament. The
shortcoming of this law is the difficulty the opposition would
face in demanding accountability from the government
and ensuring that the contributions they receive are equal.
Another challenge foreseen at the time was whether the law
would apply equally to all political parties. Fear over unequal
application was raised following an incident in which the
ruling party acted illegally, but was not sanctioned. Whereas
nomination guidelines provide for presidential aspirants to
203
204
205
go to the nomination grounds with only two convoys and

a delegation of only 20 supporters, the NRM exceeded this
limit, but did not face any sanction.
The Political Parties and Organisations (Amendment) (No.
2) Act, 2010
The second amendment provided that the chairperson and
vice-chairperson of the National Consultative Forum (NCF)
would be nominated by the members of the majority party and
majority opposition party in parliament, respectively. This
provision was deemed to be unfair since it would discriminate
against minority opposition parties. It would also limit the
extent to which democratic debate could prevail, if the NCF
is required by law to be headed by a member of the majority
party. This clearly goes counter to the spirit of constructing a
multiparty democracy.
In a true democracy, all political parties should have a voice
in decision-making, either directly or through intermediate
institutions (such as the National Consultative Forum) that
represent their interests. The future of democracy in Uganda
depends on free and vibrant political parties that freely
participate in democratic debate. Such broad participation is
built on freedom of association and speech, as well as the
capacity to participate effectively. In addition, the rule of
law demands that all citizens be treated equally before the
law. Therefore, the law should neither be made to benefit a
particular section of the society nor to disadvantage another.
The Electoral Commission (Amendment) Act, 2010
This amendment was made to allow political parties or
organisations and representatives of independent candidates
to be accredited by the EC as election observers. This would
encourage equal participation in the electoral process as
required by the Constitution, which entitles a candidate to
be present in person or through his or her representatives or

polling agents at the polling station throughout the period of
voting, counting of votes and ascertaining the results of the
poll.206
It should be noted that the above mentioned electoral
reforms were firmly resisted by opposition politicians who
shunned the legal and parliamentary affairs committee
charged with the mandate of scrutinising those bills. The
opposition politicians claimed that the government left out
their proposals regarding reform of electoral laws.207
Judicial decisions
The judiciary performed commendably following the landmark
decision of the Constitutional Court in Attorney General v. Rtd
Col Dr Kizza Besigye and 10 Others by quashing the petitioners’
treason trials before the High Court and the General Court
Martial and declaring them unconstitutional and in violation
of the right to fair trial. In this way, the judiciary reclaimed its
independence and mantle as the protector of the fundamental
rights and freedoms of the citizenry. This ruling curtailed the
ruling party’s misuse of the courts to attain political ends.
It forestalled a situation such as that in 2006, where the key
contender for the presidency, Besigye, spent much of his time
between prison, court appearances and campaigns, having
been falsely charged with rape upon his return from exile in
2005.208 The judiciary also played its vanguard role when it
206
See Article 68(3).
207
The key proposals which the opposition proposed and which the
government refused to address included an overhaul of the EC and explain
what role the military would play in the elections, that the secretary of the
EC be subjected to a specific tenure of office (the current office holder
Sam Rwakoojo has often been accused of being an NRM sympathiser) and
whether army representatives would be withdrawn from parliament as a
special interest group.
208
Mwanguhya Charles, “Besigye’s Treason Charges: Looking Back – Where
it All Started,” Daily Monitor, October 13, 2010, pp. 4- 5.
granted bail to suspects implicated in the September, 2009

Kayunga riots despite directives by the president that those
suspects not be granted bail.209
However, critics may argue that the judiciary failed to
protect women from discrimination, inhuman and degrading
treatment following the decision of the Constitutional Court
in Mifumi (U) Ltd and 12 Others v. The Attorney General and
Kenneth Kakuru210 in which the petitioners sought, albeit
unsuccessfully, declarations to the effect that the custom of
demand and payment of bride price as a condition sine qua
non of a valid customary marriage as practiced by several
tribes in Uganda was unconstitutional. The Constitutional
Court upheld the spirit of Article 37 which guarantees every
individual’s Constitutional right to belong to, enjoy, practice,
profess, maintain and promote any culture in Community
with others. The petitioners intended to persuade the court to
make declarations on the following:
The custom and practice of demand and payment of bride price
as a condition sine qua non of a valid customary marriage as
practiced by several tribes in Uganda is unconstitutional;
Whether demand for bride price by the bride’s parents fetters
the free consent of the parties to the marriage; and
Whether the giving of bride price by the groom’s family to
the bride’s family promotes inequality in marriage contrary to
Articles 21(1), (2) and (3) of the Constitution.
Regarding the first issue, the court noted that particular
customs have, by frequent proof in the courts, become so
notorious that the court will invariably take judicial notice
of them.211 In other words, courts do not require further proof
of matters for which they take judicial notice under Sections
209
Alfred. N and Wesaka Anthony, “Riot Suspects Granted Bail,” Daily
Monitor, February 26, 2010, p. 5.
210
Constitutional Petition No. 12 of 2007.
211
Angu v. Attah (1916) P.C 74 – 28, 43 (Gold Coast) relied on.
55 and 56(1) b) of the Evidence Act.212 Such matters include

customary law as practiced by the different tribes in Uganda
and subsidiary law respectively.
In this respect, the court noted that the custom and practice
of giving bride price has, at various times and in various
parts of Uganda, been the subject of subsidiary legislation.213
Judicial notice is taken of these various pieces of subsidiary
legislation under the Evidence Act, which attests to the
existence of the practice of payment and demand of bride
price among different cultures.
The rationale behind the court’s decision rested on Article
126(1) which stipulates that judicial power is derived from
the people and enjoins the courts to exercise the same in the
name of the people and in conformity with the law and with
the values, norms and aspirations of the people. Against this
background, it is submitted that it is through the payment
of bride price that indigenous communities can attest to the
existence of a customary marriage214 and this tradition is as
old as time itself. Should that be taken away, how then would
the validity of such a marriage be attested to? In other words,
the court could not impugn the customs of the people. It was,
therefore, in the spirit of Article 126(1) that court upheld
the peoples’ right to practice their culture as guaranteed by
Article 37.
212
Cap 6, Laws of Uganda 2000.
213
The laws in point include: Bukedi Bride Price Law - Legal Notice No. 259
of 1959; Teso Birth, Marriages and Death Law- Legal Notice No. 252 of
1959; Bugisu Bride Price Law - Legal Notice No. 1766 of 1960; Sebei Bride
Price Law- Legal Notice No. 176 of 1960; West Nile District Council Bye-
Law on Bride Price and the recent Tororo Bye-Law on Bride Price.
214
For instance, in Nemezio Ayiiya v. Onzia Ayiiya, Divorce Petition No. 8 of
1973, the court established that among the Lugbara Community, even if
a man and woman cohabit, their union is not recognised until the entire
dowry has been paid. In contrast, in Kemitungo v. Katuramu, Civil Suit No.
MFP 6/1991, Mukanza, J., found that because dowry had been paid in full,
the widow in question was validly married to the deceased by custom.
With respect to the second issue, it should be noted that

Article 31(3) of the Constitution states that marriage should
be entered into with the free consent of the man and women
intending to marry. The court argued that the concept of bride
price facilitates rather than fetters the consent of the parties to a
customary marriage. It gives an opportunity to the bridegroom
and his relatives to express gratitude and appreciation to the
bride’s parents for caring for and bringing up the bride in such
a way that she can be appreciated by the groom as one who
can become a wife of his choice. Court argued further that
the custom strengthens the bond between the two families in
the interests of the stability of the marriage and gives a sense
of fulfilment to the parties of the marriage by enhancing self-
esteem and self-confidence in each of the parties in that the
bridegroom realises he has a valuable partner in the marriage
who can also rely on his assured determination and ability
to ensure her well being in their home. Lastly, that the very
essence of the introduction ceremony at which bride price
is given necessarily embodies consent. The spirit behind the
decision of the court in this matter is embedded in Article 37
of the Constitution which guarantees the right to practice one’s
culture. In this decision, the Constitutional Court advanced
the cause of Constitutionalism.
On the third and last issue, the court declined to make
the declaration sought by the petitioners on the ground
that fundamental rights and freedoms of the individual are
inherent and are not granted by the state215 and that all organs
and agencies of government and all persons are commanded
to respect, uphold and promote the rights and freedoms of
individuals under Chapter 4 of the Constitution.216 These
provisions protect the practice of giving of bride price. The
215
216
See Article 20(2), Ibid.
court pointed out, and rightly so, that to many nationalities in

Uganda, the giving of bride wealth actually enhances equality
in the marriage in that it promotes mutual respect among the
parties to the marriage and is a symbol of the value the bride
walks into such a marriage with. Hence, the practice does not
promote inequality.
Even though the judiciary made rulings that advanced
Constitutionalism, its performance during the period under
review was undermined by revelations contained in the 2009
Transparency International report and the Inter Religious
Council of Uganda (IRCU) report on March 31, 2010. Both
reports ranked the judiciary as one of the three most corrupt
institutions in Uganda.217 The IRCU report was the outcome
of a survey carried out in Busia, Bugiri, Iganga and Mayuge
districts. According to the report, the institution had a 45%
prevalence rate of corruption. The report indicated that out
of the 195 respondents surveyed, 103 (52%) said they did not
expect to get justice in a court of law and most of them (75%)
attributed this to high levels of corruption. In response to
these revelations, the chief justice, Benjamin Odoki, admitted
that there were high levels of corruption in the judiciary, but
that the culprits were often brought to justice. It is undeniable
that graft, if not effectively combated, will block access to
justice for many Ugandans. As such, the struggle against graft
must be strengthened and even more stakeholders involved
in the fight; the government must invest more in legal aid to
counter the prohibitive cost of justice in Uganda today so that
the poor can also benefit from the justice system.
Conclusion
The progress made by the country in 2010 in the entrenchment
of Constitutionalism cannot be underestimated. These
217
“Graft Blocking Access to Justice,” Daily Monitor, April 1, 2010, p.3.
accomplishments must be applauded and the full involvement

and cooperation of stakeholders encouraged. However, the
key areas of concern highlighted in this chapter must be
looked into if higher levels of Constitutionalism are to be
achieved. To this end, the greatest concerns remain the need
for constructive electoral reforms and effective resource
management. Crucially, the impact of cultural pluralism on
contemporary democracy as well as increasing intolerance for
equitable political participation and freedom of expression
and assembly, cannot be ignored. Finally, national consensus
through consultation and inclusion of all citizens should be
encouraged.
References
Books and Articles
Ashanut, Okille. Capson, Sausi. Opiyo, Nicholas and Nampewo,
Zahara. Towards the Uganda 2011 Elections: An Assessment of
Conflict Risks and Mitigating Mechanisms. Publication sponsored
by the Deepening Democracy Program, DANIDA, April 2010.
Adel. M. Abdellatif. Good Governance and Its Relationship to
Democracy and Economic Development. 2003.
Christopher Mbazira. “Reform Overdue: Making the Case for
Electoral Restructuring in Uganda”, HURIPEC Working Paper
No. 2. 2009
Hyden, Goran and Olowu, Dele. African Perspective on Governance,
Africa World Press. 2000.
Human Development Report. “Deepening Democracy in a Fragmented
World.” UNDP: Oxford University Press. 2002.
Human Rights and Peace Centre, (HURIPEC). Workshop Report on
Preventing a Kenya Happening in Uganda. June 2010.
G.W. Kanyeihamba. Constitutional Law and Development in Uganda.
2000.
IDEA. 2002. “International Electoral Standards: Guide for Reviewing
the Legal Framework and The Role of the Election Commission of
India in Strengthening the largest Democracy in the World,” An
article presented by Sharma Neelam and Ashok Sheema at the
annual meeting of the Southern Political Science Association,
January 3rd, 2007, available at http://www.allacademic.com/
meta/meta/p143288-index.html (accessed on 16 October, 2010).
National Convention on Peace, Democracy and Good Governance in
Uganda, (January 2011), Report of the Workshop,( Unpublished),
Organised by the Human Rights and Peace Centre, Human
Rights Network and Cross Cultural Foundation of Uganda, held
at Makerere University, January 13-14, 2011.
Foundation for Human Rights Initiative (FHRI). Annual Report.
2009.
Fukuda-Parr, Sakiko and Ponzio, Richard. “Governance, Past, Present
and Future: Setting: the Governance Agenda for the Millennium
Declaration.” (Background Paper on the Human Development
Report). 2002.
Odendaal, Adreis and Isoob, Moses. Preparing for the Future:
Potential Conflict Scenarios and New Challenges to Peace in
Uganda. 2010.
181
United Nations Development Programme (UNDP). “Governance

in Post Conflict Countries: Management Development and
Governance Division Bureau for Development Policy,” available
at http://magnet.undp.org/Docs?crisis/monograph/monograph.
htm, accessed on October 20, 2010.
Newspapers
Afedraru, Lominda. “Activists ask Court to Ban Polygamy.” Daily
“Graft Blocking Access to Justice.” Daily Monitor, April 1, 2010, p. 3.
Kiggundu, Edris and Kibuuka, Steven. “CHOGM, CID Moves
on VP, Top Ministers.” The Observer May 30, 2010, available
at: http://www.observer.ug/index.php?option=com_content
andview=articleandid=8708:chogm-cid-moves-on-vp-top-
ministersandcatid=78:topstories
Lay, Taimour. “Ugandans should fight Resource Manipulation.”
Daily Monitor, February 18, 2010, p.12.
Mugerwa, Yasin. “Ministries Run Out of cash.” Daily Monitor,
February 14, 2010, p.12.
Mulera, K. Muniini . “War not Answer to Democratic Deficit.” Daily
Monitor, February 1, 2010, pp. 10 and 12.
Mwanguhya, Charles. “Besigye’s Treason Charges: Looking Back –
Where it all started.” Daily Monitor, October 13, 2010, pp. 4- 5.
Naturinda, Sheila. “Government Asks Russia to Explain Jet Story.” Daily
Monitor, April 8, 2010, p. 8.N. Alfred and Wesaka, Anthony. “Riot
Suspects Granted Bail.” Daily Monitor, February 26, 2010, p. 5.
Onyango, J. Oloka. “Traditional/ Cultural Leaders Bill is
Unconstitutional.” New Vision, January 13, 2010, p. 15.
Opobo, Timothy. “Transparency in Oil dealings is the Way to Go.”
Daily Monitor, February 23, 2010, p.12
Cases
Besigye v. Yoweri Museveni and The Electoral Commission,
Presidential Election Petition No. 1 of 2006.
Besigye v. Museveni and Anor, Presidential Election Petition No. 1
of 2001.
Mark Gova and Anor v. Minister of Home Affairs and Anor [S.C.
36/200: Civil Application No. 156/99].
Muwanga Kivumbi v. A.G, Constitutional Petition No. 9 of 2005.
Chapter Seven
The State of Constitutionalism in

Zanzibar, 2010
Ali Uki*
Introduction
The 1984218 Zanzibar Constitution, which is the second post

revolution Constitution of the country, underwent major and
impressive amendments that involved all aspects of politics,
legal development, human rights, good governance and
democratic development during 2010. Under the “Tenth (10th)
Amendment”, Zanzibar’s political landscape was significantly
changed.
The amendment opened a fresh chapter of political
cooperation and civilisation by introducing a new political
culture of power-sharing through a Government of National
Unity (GNU), specifically tailored either to end or scale down
* He is an assistant lecturer at the Faculty of Law, State University of

Zanzibar. He holds a Bachelor of Laws degree (State University of
Zanzibar), a master’s degree in Intellectual Property (University of Turin,
Italy) and professional diplomas in journalism and teaching. He also sits
on the editorial board of Haki Nasheria published by the Zanzibar Legal
Services Centre.
218
Section 134A of the Constitution of Zanzibar of 1984, which repealed the
Constitution of Zanzibar of 1979. Repealing of the Zanzibar Constitution
of 1979 Act No 2 of 2002, Section 39.
183
the threat of political crisis that emerged from time to time since
the re-introduction of the multiparty system219 of government
in 1992. Furthermore, the amendment also brought in a new
provision for women’s quota, raising women’s reserved seats
in the House of Representatives from 30% to 40%.220 Currently,
there are 50 electoral constituencies221 in Zanzibar.222 The
special seats for women in the House of Representatives are
distributed proportionally among parties that obtain more
than 10% of the directly elected seats.223 In this connection,
20 preferential seats had been allocated for women, of which
the ruling CCM got eleven seats and the main opposition
party, CUF, got nine seats. Only CCM and CUF won seats in
the constituency elections.
It should be observed that the Constitutional amendment
was not accidental. It was part of a plan to ensure political
stability in the islands. However, it triggered debate from some
legal scholars from the other parts of the United Republic of
Tanzania (URT) who argued that it would suffocate the Union
of Tanzania224 (an argument that was vehemently disputed
by Zanzibar). The Union of Tanzania was formed on April
26, 1964 through an agreement signed by the late Julius K.
219
Ibid., Section 5 which provides that Zanzibar shall be a state of multi-party
democracy which shall uphold the rule-of-law, human rights, equality,
peace, justice and equity.
220
Ibid., Section 67 (1).
221
Ibid., Section 120 (2) which states that the House of Representatives may
by law fix the minimum number of election constituencies being not less
than 40 and the maximum number not exceeding 55.
222
The structure of the House of Representatives is 50 members from the
electoral constituencies, 20 women special seats, 10 members are
nominated by the president of whom two members must come from the
opposition and the attorney general who joins the House by virtue of his
position.
223
224
See Articles of the Union are available at http://www.zanzinet.org/zanzibar/
history/articles union.html
The State of Constitutionalism in Zanzibar, 2010 185
Nyerere, the president of the Republic of Tanganyika and

the late Abeid Amani Karume, the president of the People’s
Republic of Zanzibar, in Zanzibar on April 22, 1964. It was
passed in the National Assembly on April 25, 1964.
The Union is one of the legacies of the late Nyerere and the
late Karume to Tanzanians. It stands out as a unique example
the world over. Many African countries have at one time or
another attempted to unite, but failed due to various political
and economic reasons. Examples were the unity of Mali and
Senegal into the Mali Union; and that of Senegal and Gambia
into Senegambia. There were also attempts to unite Libya,
Tunisia, Morocco and Algeria, into a Maghreb Union which
failed. Egypt, an Afro-Arab country, tried to unite with Syria in
1958 and formed the United Arab Republic, but this survived
for only three years and collapsed in 1961.
The Union of Tanzania faces a number of administrative
and Constitutional challenges. Some Zanzibaris considered
(and continue to do so) the Union as an erosion of Zanzibar’s
sovereignty While others still reason that the Union was
nothing but a co-option of Zanzibar into a larger Tanganyika.
All in all, the Tenth Amendment to the Constitution of
Zanzibar of 1984 was a step in the right direction, even though
it included a serious setback on human rights issues.
Under the amendment,225 an appeal against the decision of
the High Court of Zanzibar in a suit to be instituted against
the provisions of Chapter Three, which contains the Bill of
Rights, shall be heard by the High Court before three judges,
without including the judge who decided the question in the
first instance. The three judges shall be appointed by the chief
justice and the “the decision of the High Court shall be final
and conclusive.”
225
Section 24 (3) op.cit footnote 218.
This means the decision of the High Court of Zanzibar in

relation to this Chapter is not appealable to the Appellate
Court of Tanzania,226 which is the highest court of the land.
This is a retrogressive development in the efforts to promote
human rights. No convincing legal arguments were advanced
to defend this erosion of gains in the promotion of human
rights.
This chapter reviews the state of Constitutionalism in
Zanzibar. It focuses on the Tenth Amendment of the 1984
Constitution of Zanzibar and its implications on Constitutional
development in Zanzibar. After exhaustively discussing the
Tenth Amendment, the chapter also discusses observation
of human rights, legislations enacted during the year and
judicial decisions.
Constitutional Developments in Zanzibar

Constitutional development in Zanzibar can be traced way
back to 1963 when Zanzibar had its first Constitution. For a
period of 15 years, Zanzibar went without a Constitution until
the second Constitution of 1979 and the third Constitution of
1984.
The Independence Constitution of 1963227 provided for
monarchical rule with the sultan as head of state. Some
executive powers were exercised by the sultan on the advice
of the cabinet. The Constitution had a Bill of Rights.
However, the 1963 Constitution was short-lived. It was
abrogated after the January 12, 1964 revolution that was led
226
Op.cit., Footnote 218, S 99 (1) the Appellate Court of the United Republic
of Tanzania shall have the power of hearing appeal from the High Court
of Zanzibar, except cases relating to (a) Interpretation of the Zanzibar
Constitution (b) Matters of Islamic law which began at the Qadhi’s Court
and (c) Any other matters mentioned in the Constitution or by any other
law enacted by the House of Representatives.
227
University of Minnesota Human Rights Library.htm.
by the sailor-turned politician, the late Abeid Amani Karume.

Subsequently, the Revolutionary Council of Zanzibar passed
the first Legislative Power Law in 1964.228 This Council acted
as the executive as well as the legislature, contrary to the
Constitutional principle of separation of powers.
Zanzibar did not have a Constitution from 1964 to 1979.
Instead, the government in power came up with a number
of laws (decrees) to govern public affairs. For example, the
first law that came in force authorised some of the laws that
existed prior to the 1964 Revolution to remain applicable229
such as laws received from India, Britain and the sultan. On
the other hand, the same law also abrogated the Constitution
of 1963.
Additional laws passed by the Revolutionary Council of
Zanzibar were the Constitutional Government and the Rule of
Law Decree,230 which declared Zanzibar a country respecting
civil rights, equality and democracy and declared to hold
free elections in 1965. However, an amendment in 1965231
postponed the election year to such time as the president of
Zanzibar would declare.
The Revolutionary Council of Zanzibar passed the
Confiscation of Land Decree,232 which empowered the
government to confiscate any piece of land or house
without giving compensation; the Vest of Land Decree,233
which declared all land in Zanzibar government property;
the Budget Decree234 and the Audit Decree,235 which stated
228
This law was not given the number because it acted as the Constitution.
229
Existing Law Decree No. 1 of 1964.
230
No. 5 of 1964.
231
No. 4 of 1965.
232
No. 8 of 1964.
233
No. 9 of 1964.
234
No. 2 of 1965.
235
No. 3 of 1965.
government expenditure and accountability. During this

period, the Revolutionary Council of Zanzibar also passed the
Afro Shirazi Party Decree,236 declaring the Afro Shirazi Party
the sole party in Zanzibar and deregistering all trade unions,
societies and other civil society groups (organisations), which
were registered under the ‘Society Decree’ of 1963.
The 1979 Constitution established the House of
Representatives, which replaced the Revolutionary Council
of Zanzibar. However, the House of Representatives has
legislative power in relation only to (all) matters that are not
Union Matters.237
The third Constitution of Zanzibar of 1984 is still in existence
to date. It has included basic Constitutional principles, for
example, separation of powers,238 the independence of the
judiciary,239 the people’s representatives,240 the sovereignty
of the people241 and respect for human rights.242 To date, the
Constitution has been amended ten times with the Tenth
Amendment executed in 2010.
The Tenth Amendment
The Tenth Amendment can be divided into two parts. The first
amendment concerns the statehood of Zanzibar as a country
in the union set-up. This has been criticised by some legal
scholars from Tanzania Mainland. They claim that it violated
236
No. 11 of 1965.
237
Op.cit., Footnote 218, Section 78 (1).
238
Ibid., Section 5A which provides that Zanzibar shall follow the system of
separation of powers between three authorities, the executive, legislative
and the judicial authority.
239
Ibid., Chapter Six.
240
Ibid., Chapter Five.
241
Ibid., Section 9 (2) (a) which provides that sovereignty resides in the people
and it is from the people that the government through this Constitution
shall derive all its power and authority.
242
Ibid., Chapter Three.
the Constitution of the United Republic of Tanzania of 1977

and aimed at destroying the Union.
The second amendment touched purely on the formation
of a GNU following a political reconciliation accord reached
between the sixth president of Zanzibar, Amani Abeid Karume
and the secretary general of the main opposition political
party – CUF, Mr Seif Shariff Hamad, which was signed on
November 5, 2009 – a deal widely praised by Tanzanians
and the international Community for ending the protracted
political stand-off which started shortly after the first post
revolution multi-party elections held in 1995.
By virtue of the Tenth Constitutional Amendment, the first
section of the 1984 Zanzibar Constitution, which previously
stated that “Zanzibar is an integral part of the United Republic
of Tanzania,” was deleted and re-written as follows:
Zanzibar is a country whose areas consists of the whole area
of the islands of Unguja and Pemba and all small islands
surrounding them and includes the territorial waters that
before the Union between Tanganyika and Zanzibar called the
People’s Republic of Zanzibar. (Not official translation. The
Constitution is in Swahili version and therefore in case of any
legal dispute the original Swahili version prevails).
One of the reasons behind this amendment is the desire by
many Zanzibaris to re-establish the identity of Zanzibar as a
country despite being part of the Union.
In addition, Section 2 of the 1984 Constitution was deleted
and re-written as follows; “Zanzibar is amongst the two
countries forming the United Republic of Tanzania.”
Critics to this amendment, mainly from Tanzania Mainland,
argue that it violates Article 1 of the Constitution of the United
Republic of Tanzania of 1977, which prescribes Tanzania as
one state, which is the United Republic of Tanzania. This
caused a lot of intellectual debates after the amendment.
Defenders of the amendment claim that there is nothing wrong

with it. They criticise opponents for blowing the matter out of
proportion so as to cause friction between the two authorities
in the URT. In the first place, the amendment did not change
the place of Zanzibar in the Union set-up. Zanzibar remains a
country within the jurisdiction of Tanzania. In the international
context, it is not considered as a sovereign state and actually
has no capacity even to enter into foreign relations. Also, it was
stated in the court of appeal case SMZ and Machano Khamis
and 17 others, famously known as the treason case243 that “the
sovereign is the United Republic of Tanzania.”
This means that arguments to the effect that the amendment
violated the Constitution of the URT of 1997 lack legal merit.
The Tenth Amendment did not interfere with the sovereignty
of the United Republic.
It was also claimed by proponents that declaring Zanzibar
as one of the countries forming the URT does not violate the
Constitution of the United Republic of Tanzania of 1977. The
proponents of this view quote the late Mwalimu Nyerere in
his book Our Leadership and Destiny of Tanzania 244 in which
he discusses the two government systems. Nyerere noted:
When two countries unite to create one country, there are two
normal Constitutional systems: the one government system,
or the federation of three governments. In the first system,
the newly created country shall be one country with one
government. In the second system, each country will surrender
and place some matters under the federation and it shall be
the government with supreme powers over those matters.
243
In the Court of Appeal of Tanzania at Zanzibar (Coram: Kisanga, J.A;
Ramadhan, J.A; and Lugakingira, J.A) Criminal Application No. 8 of 2000
between SMZ and Machano Khamis and 17 others Criminal Application
No 8 of 2000(Revision from the ruling of the High Court of Zanzibar
(Tumaka, Deputy, C.J) dated April 3, 2000 in Session Case No. 7 of 1999.
244
1990, pp. 15-16.
Thus, according to Nyerere, one of the founders of the Union,

there would be no federal government, if all the matters to
be placed under the federal government remained in the
hands of each government. He stated that when Tanganyika
merged with Zanzibar, one of the two aforementioned systems
could be applied, but this could not be possible, taking into
consideration the small size of Zanzibar compared to the
larger size of Tanganyika.
At that time Zanzibar had a population of 300,000
while Tanganyika had a population of 12,000,000. The one
government system could have been interpreted to mean
Tanganyika had co-opted Zanzibar. This argument justified
the fact that there is nothing wrong with saying that Tanzania
is one of the two countries forming the URT.
The Tenth Amendment also added a new section, 2A,
which reads as follows;
For the purpose of the efficient discharge of the functions of the
government, the president may divide Zanzibar into Regions,
Districts and any other areas in accordance with procedures
and law enacted by the House of Representatives.
This is another area which caused debates with some scholars
arguing that it violated the Constitution of the United Republic
of Tanzania. Prior to the amendment, the president of the URT
in consultation with the president of Zanzibar had powers
to divide Zanzibar into regions, districts and any other areas
in accordance with prescribed procedures. The amendment
removed the powers of the president of the Republic of
Tanzania.
Debates about the intentions of the amendments were
further fuelled by a further amendment of the Constitution of
Zanzibar,245 empowering the president of Zanzibar to appoint
245
Op.cit., Footnote 218, Section 61.
regional commissioners without consulting with the Union

President.
Opponents viewed this as a contravention of Article 2(2)
of the Constitution of the United Republic of Tanzania, which
vests powers of dividing the URT on the president of the
URT.
However, proponents suggest that there was no violation;
rather the amendment placed the matter into clear context.
The procedure of the Zanzibar president, seeking consultation
from the Union President to divide Zanzibar and even the
appointment of the regional commissioners, was included
in the Constitution of Zanzibar of 1984 during the mono-
party system in Tanzania, where the government regional
authorities were also treated as the party leadership.246 In fact,
the amendment was necessary in a multi-party system.
Challenges facing the 10th Amendment
The Union of Tanzania has two constitutions: the
Constitution of the United Republic of Tanzania of 1977 and
the Constitution of Zanzibar of 1984. The very fast challenge
to the 10th Amendment was the need to incorporate some
of the amendments into the Constitution of the United
Republic by the National Assembly. However, some members
of the National Assembly were opposed to the amendment.
The critical question was: “What would be the place of the
Tenth Amendment if the National Assembly failed to amend
the Union Constitution to reflect the changes?” This was
particularly important since each of the two Constitutions has
jurisdiction in its own sphere.
The major feature of the 10th Amendment was the inclusion
of provisions for the GNU as an attempt to end political conflicts
246
Shahidi Newsletter, published by the office of the Zanzibar director of
public prosecutions, Issue no. 005, October—December, 2010, p.7.
on the island. The idea behind the formation of the GNU came
up during a joint meeting between the retired sixth Zanzibar
president, Amani Abeid Karume,247 and the secretary general
of CUF on November 5, 2009 at the Zanzibar state house. The
two political leaders resolved to cease political hostilities and
open a new chapter of political cooperation.
Subsequently, the leader of the opposition in the House of
Representatives, Abubakar Khamis Bakary, moved a private
member’s motion seeking to amend Sections 39, 42 and 61
of the 1984 Zanzibar Constitution to allow the formation of
a GNU.
In addition, Mr Bakary’s motion proposed a new
system to be put in place to enable the Zanzibaris call for
a referendum to decide whether or not a GNU should be
formed after the October 31, 2010 general elections. The
House of Representatives comprising CCM and CUF members
enacted a Referendum Act248 to provide for a referendum. The
referendum was held on July 31, 2010 and 66.4% of the voters
supported the formation of the GNU.
Following the referendum results, the government was
left with no option,249 except to respect the people’s decision.
The Zanzibar House of Representatives passed a law on the
formation of GNU after the October 31, 2010 elections. The
re-written Section 39 of the Constitution of Zanzibar provides
for two vice presidents whom shall be known as the first vice
president and the second vice president. Section 39 (2) of the
Constitution reads; “The President of Zanzibar within seven
247
Karume is also the national vice-chairman of the ruling CCM for
Zanzibar.
248
Act No. 6 of 2010.
249
Ibid., Section 11 which states that the majority of votes in a referendum
shall determine the decision of the voters on such question or issue in a
referendum, and the referendum results declared by the commission shall
be binding on the government.
days after assuming the office, shall appoint the first vice
president and the second vice president.”
In addition, Section 39 (3) of the Constitution provides:
“The first vice president must possess the qualifications to be
a member of the Zanzibar House of Representatives.”
However, the first vice president is not required to be a
member of the House of Representatives. Interestingly, the first
vice president is appointed by the president after consultation
with the political party that takes up the second position in
the presidential elections race. This means the opposition
presidential candidate in the election shall not automatically
hold the position of the first vice president since this will
depend on the decision made by his/her political party.
In case a political party that takes up the second position
in the presidential elections gets less than 10% of the total
presidential election results or in case the president stands
unopposed, the post of the second vice president shall be
given to an opposition political party, which takes the second
position by winning the majority of seats in the House of
Representatives.
The Constitution provides that the first vice president shall
be the principal adviser to the president and will perform
functions assigned by the president. While the second vice-
president, according to Section 39 (5) of the Constitution
of Zanzibar, shall be appointed by the president among the
members of the House of Representatives from the political
party in which the president belongs.
The second vice president shall also be the principal
adviser to the president in the discharge of his functions
and shall be the leader of the government in the House of
Representatives. It should be noted that both the first and
second vice presidents of Zanzibar shall be accountable to the

president.
Under the GNU, the president of Zanzibar within fourteen
days immediately after appointing the first and second vice
presidents in consultation with the first and second vice
presidents shall appoint ministers from among the members
of the House of Representatives in proportion to the number
of constituency seats a political party wins in the House of
Representatives.
Based on the above, one of the leading and highly respected
professors in Tanzania, Issa Shivji,250 held the view that there
is no power-sharing in Zanzibar, but only the exchange of
positions. He argued that the opposition had no say in the
GNU and was only given government positions to appease
them.
Despite the involvement of opposition members in the
cabinet, the revolutionary government of Zanzibar under
the authority of the president shall have the power to make
decisions on government policies and the ministers, under the
leadership of the second vice-president, shall be accountable
to the House of Representatives in discharging government
duties.
The opposition, therefore, has no opportunity to implement
policies stipulated in their election manifesto. It would
have been better had the two political parties forming the
government met to draw minimum national policies. Under
the Constitution, the president is still not obliged, subject
to directions of the law, to take advice given to him by any
person in the performance of his functions.251
250
In his paper presentation to mark the late Zanzibari Professor Haroub
Othman Day in Zanzibar held at the State University of Zanzibar (SUZA),
December 4, 2010.
251
Op.cit., Section 52, footnote 218.
It is believed that the GNU kills the role of the opposition

in the House of Representatives taking into consideration that
the opposition members are part of the government. In fact,
the opposition will cease to be critical of the government and
fail to remind it of its obligations. The system weakens the
checks and balances, which are important for healthy debate
in the House. In addition, under the principle of collective
leadership, opposition members in the cabinet have to support
cabinet decisions. The role of the opposition has to be played
by other entities, notably the media and NGOs. However, the
media is incapable of criticising the government and thus,
may not play this role effectively.
The 10th Amendment and the House of Representatives
The 10th amendment reduced the powers of the Zanzibar
House of Representatives. Unlike in the past, under section
80A of the Constitution, the House of Representatives shall
not be able to make amendments to some sections unless a
referendum is held.
The sections are as follow:
(a) All provisions of Part One of Chapter One of the
Constitution. The respective provisions are: Zanzibar and
the area of Zanzibar,252 Zanzibar and the Union,253 regional
and districts of Zanzibar,254 the government seal,255 the
Constitution of Zanzibar,256 Zanzibar to be a state of multi
party democracy,257 and the distribution of powers.
(b The government and the people.258
(c) All provisions of Chapter Three, which relate to the
protection of fundamental rights and individual freedom.
252
Ibid., Section 1.
253
Ibid., Section 2.
254
Ibid., section 2A.
255
Ibid., Section 3.
256
Ibid., Section 4.
257
Ibid., Section 5.
258
Ibid., Section 9 of the Chapter Two of the Constitution.
The respective provisions are equality of people,259 equality

before the law,260 the right to life,261 the right to individual
freedom,262 the right to privacy and personal security,263
protection of freedom of movement,264 protection from
deprivation of property265 and freedom of expression.266
The others are the right to freedom of religion,267 protection
of freedom of assembly and association,268 freedom to
participate in public affairs, the right to work and receive
remuneration,269 the duty to participate in work,270 the
duty to abide by the laws of the land, the duty to safeguard
public property and defence of the nation,271 limitations
to the rights and freedoms and safeguard to the rights and
obligations,272 and institution of suits.273
(d) The office of the president and qualifications for the
election of the president.274
(e) Term of office of the president.275
(f) All provisions of Part Two and Part Three, except Section
49 and 50 of Chapter Four. The respective provisions
are the first vice president and second vice president,276
vacancy in the post of first vice president,277 vacancy in
the post of first vice president or second vice president,278
259
Ibid., Section 11.
260
Ibid., Section 12.
261
Ibid., Section 13.
262
Ibid., Section 14.
263
Ibid., Section 15.
264
Ibid., Section 16.
265
Ibid., Section 17.
266
Ibid., Section 18.
267
Ibid., Section 19.
268
Ibid., Section 20.
269
Ibid., Section 21.
270
Ibid., Section 22.
271
Ibid., Section 23.
272
Ibid., Section 24.
273
Ibid., Section 25A.
274
Ibid., Section 26.
275
Ibid., Section 28.
276
Ibid., Section 39.
277
Ibid., Section 39A.
278
Ibid., Section 40.
resolution of the vote of no confidence279 and the ministries

of the revolutionary government of Zanzibar.280 The others
include stopping to work for the first vice president and
ministers,281 the revolutionary council,282 the assignment
of ministers to ministries,283 meetings of the council,284
the oath of allegiance285, deputy ministers286 and vacancy
in offices of minister and members of revolutionary
council.287
(g) To call for a referendum to amend some of the provisions
of the Constitution.288
(h) Special departments289 and the power of the president in
respect of special departments.290
Additionally, reducing the powers of the Zanzibar House of
Representatives to amend some provisions of the Constitution
of Zanzibar is a considerable blow to democracy. So far, no
explanation has been given by the authorities in Zanzibar
for reducing the power of the legislature to amend the
Constitution and shifting the power to the people to decide
through a referendum.
One may correctly argue that a referendum is the direct
participation of the people to decide their affairs. The opposing
view is that the House of Representatives has become a
rubber stamp, particularly because the results of referenda
are binding. Under normal circumstances, the direct voice of
279
Ibid., Section 41.
280
Ibid., Section 42.
281
Ibid., Section 42A.
282
Ibid., Section 43.
283
Ibid., Section 44.
284
Ibid., Section 45.
285
Ibid., Section 46.
286
Ibid., Section 47.
287
Ibid., Section 48.
288
Ibid., Section 80A.
289
290
Ibid., Section 123.
the people through referendum is much more profound than

the voice of the representatives.
At the time of this review, the House of Representatives was
in the process of reviewing its standing regulations to make
them compatible with the new GNU.291 Some of the issues
under consideration included abolition of the shadow cabinet
and the position of the leader of opposition in the Zanzibar
House of Representatives, election of the government chief
whip, with the duty of assisting the leader of government
business and the election of party whips to supervise members
of the House from different parties. The formation of the GNU
made some of the House regulations outdated.
Observance of human rights

The first Constitution of the state of Zanzibar of December 10,
1963 contained a Bill of Rights from Article 14 to 31. However,
that Constitution was short-lived. It was abrogated on January
12, 1964, after the Zanzibar Revolution that toppled the
sultanate monarchy.
The second Constitution did not contain a Bill of Rights.
However, the third Constitution included a Bill of Rights.292
It should be noted that Zanzibar had no Constitution for
almost two decades from 1964 until 1984. A Bill of Rights
had no place in governance during this period of rule by
presidential decrees. There was no separation of powers and
the Revolutionary Council acted as the executive as well as the
legislature. There was complete lack of checks and balances.
Historically, Zanzibar was a colonial possession of the
Sultan of Oman since 1832. In 1878, the Sultan of Zanzibar
291
Zanzibar attorney general, Omar Othman Makungu was quoted by The
Guardian, December 23, 2010, Issue No 5006, p.2.
292
The Constitution of Zanzibar of 1984 in Chapter Three, from Article 11 to
25A.
signed a protection Treaty with Great Britain and in 1914;

she became a virtual colony of Great Britain with the Sultan
acting as the local ruler.293
The amendment increased significantly, the preferential
seats for women in the House of Representatives as part
of efforts to empower women. The total number of seats
reserved for women increased to seats was raised to 40% from
the previous 30%. Zanzibar has indeed realised progressive
improvement over the years. At the time of writing this
chapter, the number of women was 26 out of 81 in the House
chamber, up from 20 women against 61 males in 2005 to 2010,
13 women against 59 males in 2000 to 2005 and 13 women
against 63 males in 1995 to 2000.
Even though women have scored in terms of representation,
a lot still needs to be done generally to promote enjoyment
of human rights.294 Claw back clauses dominate human
rights provisions, making it difficult to enjoy the rights. The
best example is Section 24 (1) of the Constitution which
provides:
The human rights and freedoms, the principles of which are
set out in this Constitution, shall not be exercised by a person
in a manner that causes interference with or curtailment of
the rights and freedoms of other persons or of the public
interest and can be limited by the law enacted by the House of
Representatives if that limitation is necessary and agreeable in
the democratic system.
Additionally, the Tenth Constitutional amendment also
negatively affected the status of the Bill of Rights through
Section 24 (3), which was amended by adding new words;
293
Mvungi, Tanzania Constitutional Development, 2002, p.1.
294
The minister of Constitutional and legal affairs in Zanzibar, Abubakar
Khamis Bakar, in his opening speech to mark the International Human
Rights Day delivered on 10 December, 2010, EACROTANAL Hall, p.8.
“A decision to be reached by three judges of the High Court

would be final and not appealable to the Court of Appeal of
Tanzania.’’
There is no legal justification to bar appeals to the Court of
Appeal of Tanzania, the highest legal organ in the URT.
The Court of Appeal of Tanzania is one of the Union Matters
listed in Schedule One of the Constitution of the United
Republic of Tanzania of 1977 and it is indicated in Article
117 (3) in the Fifth Chapter of the same Constitution. This
Article provides that: “The function of the Court of Appeal of
Tanzania is to entertain and determine an appeal to be brought
before it or any decision from the High Court.”
Accordingly, a decision of the High Court of Zanzibar is
final and conclusive. This negates the Constitutional right of
the people of Zanzibar to appeal to the Court of Appeal of
Tanzania. As a matter of fact, this amendment is in conflict
with the Constitution of the URT of 1977 which allows an
appeal from Zanzibar to be filed to the Court of Appeal of
Tanzania.
Good Governance in Zanzibar
Before the 1964 revolution, Zanzibar practiced a multi-party
system of government. But shortly after the revolution, the
system was abandoned. Following external and internal
pressure, Tanzania in 1992 formed a presidential commission,
commonly known as the Nyalali Commission, to collect
opinions from Tanzanians as to whether or not Tanzania
should continue with a single party political system or adopt a
multi-party system. Although 80% of Tanzanians interviewed
by the Nyalali Commission supported the single party system,
a decision was made to adopt multi-partyism.
Similarly, Constitutional changes were made to both the
Constitution of the United Republic of Tanzania of 1977
and that of Zanzibar of 1984 to provide for a multi-party

system. The Political Parties Act295 was enacted to regulate the
formation and registration of political parties. Subsequently,
the Zanzibar Electoral Commission (ZEC) was established
under Section 119 (1) of the Constitution, with the mandate
of conducting presidential, House of Representatives and
councillors’ elections.
Zanzibar has had a long history with elections. The first
elections for members of the Legislative Council (Legco) took
place in 1957, followed by similar elections in January, 1961
and in June, 1963, before the abandonment of the multi-party
system in 1964. Elections were re-introduced under the single
party system and held in October, 1985 and in 1990.
The multi-party election system was reintroduced in 1995.
Subsequently, multi-party elections were held in 1995, 2000,
2005 and 2010. Unlike the previous elections, where defeated
candidates did not accept the results, claiming fraud in favour
of the ruling CCM party, this situation changed in the 2010
elections as the defeated presidential candidates accepted the
results ZEC announced.
In the presidential elections held on October 31, 2010,
seven political parties fielded candidates. According to the
results ZEC announced, the Association of Framers Party
(AFP) candidate, Said Soud, got 480 votes (0. 1%), the CCM
candidate, Dr Ali Mohamed Shein, got 179,809 votes (50.1%),
the CUF candidate, Seif Sharif Hamad, got 176,338 votes
(49.1%) and the Jahazi Asilia candidate, Kassim Bakar Ali, got
803 votes (0.2%). Additionally, the NCCR-Mageuzi candidate,
Ambar Haji Khamis, got 363 votes (0.1%), the National
Reconstruction Alliance (NRA) candidate, Haji Khamis Haji,
got 525 votes (0.1%) and the Tanzania Democratic Alliance
(TADEA) candidate, Juma Ali Khatib, got 497 votes (0.1%).
295
No. 5 of 1992.
Valid votes numbered 350,815 (98.3%) while invalid votes

were 6,109 (1.7%). Total votes cast numbered 364,924 votes
(89.5%) against a total number of 407,658 registered voters.
Despite the fact that the defeated presidential candidates
accepted the results, some local and international observer
groups called for improvement of the electoral process,
especially voter registration and verification in tallying
(validation) of presidential election results. Furthermore,
the observer groups suggested that agents of presidential
candidates be allowed to witness the verification so as to clear
suspicion of rigging at this crucial stage.
The number of registered voters in 2010 (407,658) was
significantly less than that of the 2005 elections, where the
number of registered voters was 507,225.296 About 100,000
eligible voters did not register.
A number of reasons were given to explain the drop in the
number of registered voters, including the requirement of
Zanzibar identity cards (ZAN-ID) for the registration of voters
to the permanent voters’ register. A large number of those
who did not register lacked the ZAN-ID. Another contributing
factor was the pre-condition that a voter must have stayed in
a given constituency for three years consecutively. Economic
factors have engendered a high rate of mobility.
As was the case with the previous government, the
new government created a ministry responsible for good
governance, an indication that the administration meant to
ensure respect for good governance.
However, hardly a month after the new government under
President Dr Ali Mohamed Shein was formed; it got its first
crucial test in office. The Zanzibar Law Society (ZLS), an NGO
filed a petition (a protest letter) to the president explaining its
296
Ripoti Ya Tume Ya Uchaguzi Ya Zanzibar Kuhusu Uchaguzi Mkuu Wa
Zanzibar Mwaka 2005, p.103.
dissatisfaction over the appointment of some new judges of

the High Court of Zanzibar.
According to the letter dated November 30, 2010, Ref.
ZLS/IKULU/001, they requested the president to stop the
appointment of some judges due to what they termed “lack
of additional qualifications” to be appointed as High Court
judges.
The letter argued that the Constitutional requirements
stipulated in Sections 94 (2) and (3) of the Constitution of
1984 are not enough and that additional qualifications must be
considered. Section 94 (2) provides: “Judges of the High Court
shall be appointed by the president on the recommendations
of the Judicial Service Commission.”
While Section 94 (3) provides:
A person shall not be appointed Judge or Acting Judge of the
High Court unless (a) he holds a law degree from a recognised
university or from a similar institution, (b) he is or was a judge of
a similar court to this court with civil and criminal jurisdiction
in Tanzania or any other place in the Commonwealth or a
court with appellate jurisdiction from those courts or he is an
advocate of Zanzibar or Tanzania for a period of not less than
seven years or a combined experience of not less than seven
years.
ZLS was of the opinion that the following additional
qualifications be considered: vast experience, good records,
seriousness of judges, competence, confidence, honesty,
the way s/he handles court proceedings and the writing of
judgments.
The late Honourable Justice Kahwa Lugakingira in his
paper, “Corruption and the Erosion of Judicial Independence
in Tanzania: Some Tentative Observations”297 mentioned
297
Paper presented at the Judges and Magistrates’ seminar on corruption held
in Dar es Salaam, 16 to 7 December, 1996 by Peter, C.M, Human Rights in
Tanzania: Selected Cases and Materials, Rudiger Verlag Koln, Koln, 1997,
p.484.
a number of factors undermining the independence of the

judiciary, including the protection of incompetent personnel.
He noted that this usually occurs, where there is a powerful
“Godfather” in a strategic position within the department or
within the government.
In addition, in the case of the Republic v Iddi Mtegule,298
Chipeta J. stated that the judiciary must be free from political,
executive or emotional pressures, if it is to work with the
smoothness and integrity expected of it under the supreme
law of the land, the Constitution. The president ignored the
protestations and acted in accordance with Section 52 of
the 1984 Constitution. The Section provides: “The President
of Zanzibar, subject to directions of the law, shall not be
obliged to take the advice given to him by any person in the
performance of his functions.”
In addition to the appointment of the judges, ZLS questioned
the legality of the chief justice of Zanzibar, stating that there
was no reason to re-appoint him considering the fact that he
had voluntarily retired. Section 95 (1) of the Constitution of
Zanzibar states:
Without prejudice to the provision of the Article, the judge
of the High Court shall continue to hold his office until he
reaches the age of sixty when he may voluntarily retire or he
may continue until he reaches the age of sixty-five where he
shall be bound to retire.
Further, Section 95 (2) provides:
Notwithstanding the provisions of sub-article (1) of the Article,
the President may in consultation with the Judicial Service
Commission re-appoint a retired judge to hold the office of the
High Court judge for a specified period or for a particular case.
The ZLS letter alleged that the procedures explained above
were not adhered to as the JSC was not consulted. The ZLS
further claimed that there was no reason for the chief justice
298
High Court of Tanzania, at Dodoma, (PC) Crim. Rev. No. 1 of 1979.
to retire voluntarily when he reached the age of sixty and later

decide to work on contract.
The letter further alleged that courts in the Commonwealth
are strongly opposed to judges working on contract. The reason
for this position is the desire to safeguard the independence
of judiciary.
The critical issue here is whether the vast powers of
appointment bestowed on the president in this case can be
justified in the context of good governance. The other issue is
whether this is appropriate in the context of the GNU created
by the Tenth Amendment. It was felt that the amendment ought
to have dealt with these powers of the president. This issue
reminded the society that there was in effect no opposition in
Zanzibar.
It was further considered that, fundamentally, there can
be no democracy without an independent judiciary. In order
to administer justice efficiently and professionally and win
public confidence, judges, magistrates and kadhis, must have
sound academic qualifications, experience, legal ethics and
impeccable integrity.299
The late Tanzanian president, Nyerere, had this to say on
the personal integrity of judges and magistrates:
There are jobs in our society which can be done by undisciplined
people and people whose personal integrity can be called into
question, being a judge or magistrate is not among them.300
The issue of good governance was brought into public debate
because of lack of regulations governing the operations
of some quasi judicial organs like the Zanzibar Industrial
299
Miskry, Ahmed Masoud, “The Practical Problems Facing the Judiciary
in Zanzibar and a Way Forward: The Judiciary in Zanzibar”: in Peter,
Chris Maina, and Sikiland, Immi eds., Zanzibar-Tanzania: Zanzibar Legal
Services Centre, 2006, p. 59.
300
Nyerere K. Julius, Speech to the meeting of judges and magistrates, Arusha,
March 15, 1984.
Court.301 Due to this situation, the Industrial Court is forced to

use the Civil Procedure Decree, Cap 8. The Kadhis Courts302
responsible for handling cases of Muslims in marriage,
divorce and maintenance, also fall under the category of
organs with no regulations. Kadhis Courts also apply the
Civil Procedure Decree, Cap 8. However, there are complaints
that Kadhis (Islamic Sheikh presiding over the Kadhi’s court)
are not conversant with the Civil Procedure Decree, making
their decisions questionable. They are also criticised for not
following the proper style of writing judgments. This weakness
has to be corrected to strengthen good governance.
Laws enacted in 2010

The Zanzibar House of Representatives passed eleven pieces
of legislation in 2010. The Acts are as follows:
1. The Zanzibar Broadcasting Commission Act No. 1 of 2010
2. The Office of the Director of Public Prosecutions Act No. 2 of
2010
3. The Government Proceedings Act No. 3 of 2010
4. The Stone Town Conservation and Development Act No. 4 of
2010
5. The Zanzibar Sports Council Act No. 5 of 2010
6. The Referendum Act No. 6 of 2010
7. The Fisheries Act No. 7 of 2010
8. The Appropriation Act No. 8 of 2010
9. The Tenth Amendment of the Constitution of Zanzibar of 1984
Act No. 9 of 2010
10.The Amendment to the Land Tenure Act No. 12 of 1992
11. The Condomino Act No. 11 of 2010
301
Act No. 2 of 1994.
302
Act No. 6 of 1985.
Out of the eleven Acts passed by the House of Representatives,

two of them were criticised for not being in line with
requirements of good governance.
The Referendum Act No. 6 of 2010
The passing of the Referendum Act gave opportunity to
Zanzibaris to vote in referenda to decide their own affairs.
It is a positive development in the democratisation process.
However, the Referendum Act has legal shortcomings which
need to be looked at to ensure that it serves this purpose.
Section 3 (1) of the Act gives power to the House of
Representatives and the president of Zanzibar to call for a
referendum. In order to promote the peoples’ participation in
governance, this power should be extended to citizens.
The main weakness of Section 3 (1) of the Referendum Act
is that there are no set criteria for calling for a referendum.
This weakness may lead to the abuse of power. It is important
to set the criteria as people may be able to judge whether the
president exercises the power bestowed on him fairly or not.
According to Section 10 (1) of the Referendum Act, the
referendum results shall be deemed to be official results
and shall not be questioned in any manner save only by a
referendum petition presented to the High Court. This Section
is unconstitutional and undemocratic. The Section is also in
conflict with Section 18 (1) which provides:
“without prejudice to the relevant laws of the land, every
person has the right to freedom of opinion and expression,
and to seek, receive and impart or disseminate information
and ideas through any media regardless of national frontiers
and also has the right of freedom from interference with his
communication.”
According to Section 11 (1) of the Referendum Act,
“the majority of votes given in a referendum shall determine
the decision of the voters on such question or issue in the
referendum and the referendum results declared by the
Zanzibar Electoral Commission shall be binding on the

government.”
This has been criticised because it does not provide for
a minimum number of voters needed to participate in a
referendum so that the results of the referendum are considered
binding. In some cases the turnout can be too low. In addition
to establishing a threshold, it should also be provided that it
requires two thirds of voters for a referendum decision to be
biding. This will promote democracy.
Furthermore, the Constitution of Zanzibar could include a
provision stating that there should be two types of referenda:
compulsory referenda and optional referenda. In addition,
there are other grey areas like Section 11 (2) that states that:
“where there is an equality of votes cast “Yes” or “No” on a
question or issue at a referendum, the Commission shall
appoint another day within one month after the declaration
of results to repeat the poll and referendum procedures shall
commence afresh.”
This is a legal absurdity. If a referendum ends in a tie, it is
better that the issue at stake be counted as “rejected’’ because
there is the possibility that the equality of votes may be
repeated bearing in mind the same voters will cast their votes
on the same issue.
Further, it might be prudent to have a provision stating that
those who did not turn-out to cast their votes in a referendum,
will be considered has having voted “No”. There is need to
draw a distinction between normal election procedures and
referendum procedures.
Section 12 (1) of the Referendum Act provides that:
“a registered voter shall only be allowed to file a petition
to the High Court challenging the results if he (a) obtained
signatures of not less than ten per cent of the total number
of voters from each region and (b) deposits three million
Tanzania shillings (which is equivalent to 2,300 us dollars) as
security for costs.’’
It should be noted that an appeal is a Constitutional right

stipulated in Section 12 (6) (a) of the Constitution of Zanzibar
of 1984 which provides that:
“when the rights and duties of any person are being determined
by the court or any other agency, that person shall be entitled
to a fair hearing and to the right of appeal or other legal
remedy against the decision of the court or of the other agency
concerned.”
Amazingly, this Constitutional right is subjected to a number
of hurdles. Simple calculation shows that 10 per cent of
signatures from each region considering that Zanzibar has
five regions, means an appellant shall have to collect a total
of 100,000 signatures from registered voters in order to file an
appeal.
This discourages people from exercising their Constitutional
rights to appeal and it is against principles of good governance,
democracy and human rights.
At the same time, Section 12 (1) (b) provides that:
“an appellant must deposit three million Tanzania shillings to
the High Court as security for cost.”
This is undemocratic and discriminatory given that not all
people can afford those costs. This Section in the Referendum
Act contradicts Section 12 (1) of the Constitution of Zanzibar
of 1984 which provides that:
“All persons are equal before the law and are entitled without
any discrimination, to protection and equality before the
law.”
In the case of Julius Ishengoma Francis Ndyanabo v. Attorney
General303, it was declared that the section requiring a person
filing an election petition at the constituency level to pay five
million Tanzania shillings as security for costs is against the
Constitution of the United Republic of Tanzania of 1977 and
303
Civil Appeal No. 64 of 2001, in the Court of Appeal of Tanzania, at Dar es
Salaam, Coram, C.J. Kisanga, J.A and Lugakingira, J.A.
is discriminatory. It a basic right to go to court to seek legal

redress and the right should not be subjected to hurdles.
Access to justice is emphasised in different cases including
Chester v. Bateson304 R. and W. Paul Ltd v. The Wheat
Commission,305Pyx Granite Co. Ltd v. Ministry of Housing and
Local Government and Others306 and Raymond v. Honey307.
There is need to draw lessons from the decisions of the Court
of Appeal of Tanzania and the other cases referred to so as to
reverse this unconstitutional provision.
Again Section 12 (5) of the Referendum Act provides that;
“The decision of the High Court shall not be subject to appeal
to the Court of Appeal of Tanzania.”
There is no justification to deprive a person who feels
dissatisfied with a decision of the High Court of Zanzibar of
an opportunity to appeal that decision in the Court of Appeal
of Tanzania, a Union institution which is the highest court of
the land and whose decisions are final and conclusive. This
Section leaves much to be desired in terms of good governance,
democracy and the respect for human rights in Zanzibar.
The Government Proceedings Act No. 3 of 2010
This Act aims to prevent the court from executing its decisions
especially on attachment as contained in sections 59, 60, 61
and 21 of the Zanzibar Civil Procedure Decree, Chapter 8.
As a matter of fact, this Act was formulated in response to
increased court orders of attachment of government properties
for debt default. The Act deprived courts of powers to force
the government or its departments to pay debts.308 It infringes
on the rule of law, the requirement of equality before the law,
304
[1920] 1 K.B. 829.
305
[1937] A.C .139.
306
[1960] A.C. 260.
307
[1983]A.C.1.
308
“Jarida la Kituo cha Huduma za Sheria Zanzibar,” Sheria Na Haki, Issue
No. 002, April-Juni, 2010, p.6.
and independence of the judiciary. All these are critical facets

of Constitutionalism. The Act suggests that the government
is above the law and should not be held responsible for its
actions. It goes against the requirements of good governance.
Finally, it encourages abuse of power and diminishes the
system of checks and balances which must be present in a
democratic system.
Judicial decisions
One major decision which would have made a difference in
the period under review was, Attorney General v. Reverend
Christopher Mtikila,309 an appeal decided by the Court of
Appeal. This appellate court is a Union institution as provided
in item No. 21 in the First Schedule of the Union Constitution
of the Republic of Tanzania.
In this case, the issue was the right of an individual to contest
in an election as an independent candidate. The High Court of
Tanzania had already dealt with this issue on two occasions
including the matter before the Court of Appeal of Tanzania.
This time round it was expected that the Court of Appeal as
the highest court of the land would provide proper guidance
on the matter. However, in an unprecedented manner, instead
of having a normal bench of three appeal judges, the Court of
Appeal in a full bench presided over this appeal and failed to
provide guidance.
Instead, the appellate court characterised the issue of
independent candidate as political. The court denied the right
of an individual to contest in an election as an independent
309
Court of Appeal of Tanzania at Dar es Salaam, Coram: Ramadhani, C.J.;
Munuo, J.A; Msoffe, J.A; Kimaro, J.A; Mbarouk, J.A; Luanda, J.A; Mjasiri,
J.A; Civil Appeal No. 45 of 2009, Appeal from the judgement of the High
Court of Tanzania.
candidate and referred the matter to the parliament to change

the electoral law.
Conclusion
There were positive developments as well as challenges in
terms of Constitutionalism in Zanzibar in the year 2010 as
highlighted in this chapter. Some of the areas pointed out should
be dealt with by the authorities as well as other stakeholders
such as the ZLS so as to advance Constitutionalism.
As at the time of writing, debate had commenced especially
in Tanzania Mainland on the need to rewrite the Constitution
of the URT. The government seems to have bowed to pressure
and admitted that there was need to look at the Constitution. If
this happens, then the Zanzibar government will have to amend
its Constitution to conform to the resultant new Constitution
of the URT. Some of the challenges in implementation of the
10th Amendment could also be dealt with.
References
Constitutions
Constitution of Zanzibar, 1984.Constitution of the United Republic
of Tanzania of 1977.Constitution of Republic of Zanzibar, 1963.
Acts
The Kadhis Magistrate Act No. 2 of 1985
The Political Parties Act No. 5 of 1992
The Zanzibar Industrial Court Act No. 2 of 1994
The Zanzibar Broadcasting Commission Act No. 1 of 2010
The Office of the Director of Public Prosecutions Act No. 2 of 2010
The Government Proceedings Act No. 3 of 2010
The Stone Town Conservation and Development No. 4 of 2010
The Zanzibar Sports Council Act No. 5 of 2010
The Referendum Act No. 6 of 2010
The Fisheries Act No. 7 of 2010
The Appropriation Act No. 8 of 2010
Decrees
Existing Law Decree No. 1 of 1964
Constitutional Government and Rule of Law Decree No. 5 of 1964
Elections Decree No. 4 of 1965
Confiscation and Land Decree No. 8 of 1964
Vest Land Decree No. 9 of 1964
Government Property and the Budget Decree No. 2 of 1965
Audit Decree No. 3 of 1965
Afro Shirazi Party Decree No. 11 of 1965
Civil Procedure Decree, Cap 8
Books
Peter, C.M. Human Rights in Tanzania: Selected Cases and Materials.
Koln:Rudiger Verlag Koln. 1997. and Sikiland Immi. eds. The
Judiciary in Zanzibar. Zanzibar-Tanzania: Zanzibar Legal
Services Centre. 2006.
214
References 215
Cases
Attorney General v. Reverend Christopher Mtikila, Court of Appeal
of Tanzania at Dar es Salaam, Civil Appeal of Tanzania at dare s
Salaam, Civil Appeal No. 45 of 2009
Chester v. Bateson [1920] 1 K.B 289
Julius Ishengoma Francis Ndyanabo v. Attorney General, Civil Appeal
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The Annual State of

Kituo cha Katiba: Eastern Africa Centre for Constitutional Development

Distributed in Europe and Commonwealth countries outside Africa by:

© Kituo cha Katiba 2012

All rights reserved. No part of this publication may be reproduced, stored

2. The State of Constitutionalism in the East African

3. Constitutionalism in Kenya, 2010......................................... 29

4. The State of Constitutionalism: Good Governance,

5. The State of Constitutionalism in 2010: Issues, Debates and

6. The Annual State of Constitutionalism in Uganda 2010:

7. The State of Constitutionalism in Zanzibar, 2010 ............... 183

Conceptualising the Nexus

* Executive Director of Centre for Law and Research International

Constitutionalism and the rule-of-law”1 and that, therefore,

oftentimes, in the lives of states, “. a congenial trajectory of

readers to be made aware of the similarities in some of the

effort. Constitutionalism, as a window of self-appraisal within

Constitutional Developments in 2010

available. It is this kind of provisions that led to some in the ruling

Comparatively, the elections in Tanzania suffered different

management of the resource. Even before the excitement over the

solutions. Luckily for Tanzania, even though there were incidents of

The State of Constitutionalism in

Introduction and Background

* He is a lecturer in International Human Rights Law, Gender and the Law,

good governance. The now well established art of limiting

epoch of review – it was possible to talk of ‘Constitutions

For members of the EAC: Burundi, Kenya, Rwanda, Tanzania

Constitutionalism, Human Rights and EACJ

compliance with’ the Treaty. The import of the latter Article

10 others v. The Attorney General of Kenya and 5 others,21 it

respective replies dated 11, 12 and 13 December, 2006;

aspect of the court’s jurisprudence seems to be the resolve

given for coming on board was an operational principle of the

been reserved under the Treaty to an institution of a partner

of the enactment, publication, directive, decision or of action

Constitutionalism and EAC Secretariat

commissions in the Community to the Council of Ministers

Constitutionalism and EALA

the people, and whether the elections met the benchmarks

mandated to ascertain whether the elections were free and

instance, the preliminary report of observers would have to

Constitutionalism in Kenya, 2010

Danny Irungu Mwangi*

Key Milestones in 2010 Likely to Enhance Good

* He is an Institutional Development, Management and Governance

The historic referendum of August 4, 2010 and the promulgation

individuals from these three sectors. Many initiatives

considering Kenya’s changing political environment, the

not be credited with bringing the sanity of law to the process.

The CIOC was also constituted with the task of keeping

Key Features of the 2010 Constitution

orders, declaration of invalidity of any law that denies,

that the limitation is reasonable and justifiable in an open

Other notable gains include provisions that seek to protect

country witnessed the suspension of several public officers

attempts made so far to enact a Freedom of Information Act

to be referred to as cabinet secretaries), will be appointed from