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Published online by Cambridge University Press: 11 November 2008
From the late 1950s until the present day the territories, colonies, and later the new states of English-speaking Africa have been engaged in a continuing effort to develop their own national constitutions. It has been an attempt to capture in written form the government structures and political systems which would best express their political will and guide them through the difficult early years of independence.
page 35 note 1 See de Smith, S. A., The New Commonwealth and its Constitutions (London, 1964);Google ScholarWheare, K. C., Modern Constitutions (London, 1966 edn);Google Scholar and also Wolf-Phillips, L., ‘Classification of Constitutions’, in Political Studies (Oxford), XVIII, 03 1970.Google Scholar
page 36 note 1 McAuslan, J. P. W. B., ‘The Evolution of Public Law in East Africa in the 1960's (Part II)’, in Public Law (London), Summer 1970, p. 564.Google Scholar See also Ghai, Yash P., ‘Constitutions and the Political Order in East Africa’, in The International and Comparative Law Qyarterly (London), XXI, 10 1972, p. 403;Google Scholar and Palley, Claire, ‘Rethinking the Judicial Role’, in Zambian Law Journal (Lusalca), 1, 1969.Google Scholar
page 36 note 2 Palley, loc. cit. p. 35.
page 36 note 3 5 U.S. (I Cranch) 537, 2 L. Ed. 60 (1803).
page 36 note 4 McAuslan, J. P. W. B., ‘The Evolution of Public Law in East Africa in the 1960's (Part I)’, in Public Law, Spring 1970, p. 15.Google Scholar
page 37 note 1 Mwendwa, Kitili, ‘Constitutional Contrasts in the East African Territories’, in East African Law Today (Nairobi, 1966), p. 1.Google Scholar
page 37 note 2 See generally de Smith, op. cit.; Morris, H. F. and Read, James S., Indirect Rule and the Search for Justice: essays in East African legal history (London, 1972);Google ScholarGhai, Y. P. and McAuslan, J. P. W. B., Public Law and Political Change in Kenya: a study of the legal framework of government from colonial times to the present (Nairobi and London, 1970);Google ScholarCole, J. S. R. and Denison, W. N., Tanganyika: the development of its laws and constitution (London, 1964);Google ScholarRoberts-Wray, K. O., Commonwealth and Colonial Law (London, 1966);Google Scholar and for background only, Allott, A. N. (ed.), Judicial and Legal Systems in Africa (London, 1970).Google Scholar
page 37 note 3 Internal political organisation differed markedly from tribe to tribe, as Mair, Lucy points out in Primitive Government (London, 1962);Google Scholar nevertheless, as a generalisation, this statement is true. Perhaps as important for these purposes, it is believed to be true. See also Fortes, Meyer and Evans-Pritchard, E. E., African Political Systems (London, 1940);Google Scholar and Middleton, John and Tait, David (eds.), Tribes Without Rulers: studies in African segmentary systems (London, 1958).Google Scholar
page 37 note 4 This point has been made with clarity and force by Nwabueze, B. O., Presidentialism in Commonwealth Africa (London, 1974), p. 305:Google Scholar ‘When… the United States of America emerged into independent statehood in 1783, it too had to grapple with the usual teething problems of infancy, problems of state security and of unity, and the means then available to it for dealing with these problems could hardly be said to have been ‘stronger’ or better organised than those at the disposal of the new states today. The American approach to the conflict of state security versus individual liberty is therefore relevant, both because America had undergone a similar experience of colonial rule and of independence, and also because it is governed under a written Constitution.’ See also generally Nwabueze, B. O., Constitutionalism he Emergent States (London, 1973), pp. 14–20.Google Scholar
page 38 note 1 de Smith, op. cit. pp. 1–2.
page 39 note 1 This occurred in 1902 for Uganda, and in 1920 for Tanganyika. In the case of Kenya, known as the East African Protectorate from 1897 until 1920, the chief executive officer of the Administration was known as ‘Commissioner’ until 1905, after which time the term ‘Governor’ was employed.
page 39 note 2 Initially, membership was exclusively official and the Council served in an advisory capacity only; for example, in Tanganyika the Chief Secretary, the Attorney-General, the Treasurer, and the Director of Medical and Sanitary Affairs made up the original Executive Council.
page 39 note 3 These differed slightly from one territory to another. The establishment and alteration of the court systems of East Africa is carefully charted by Allott (ed.), op. cit.
page 40 note 1 By ‘general law’ is meant the entirety of the law established by the colonial administration; African customary law was excluded. For example, in Kenya the general law was certain Codes and Acts of India, locally enacted statutes, and - so far as these did not apply - the common law, doctrines of equity, and statutes of general application in force in England on 12 August 1897.
page 40 note 2 Cameron expressed his views on this subject in a Confidential Despatch to London, dated 17 February 1927, and quoted in Morris and Read, op. cit. p. 146.
page 41 note 1 Ibid. chs. 5 and 9.
page 41 note 2 Ibid. p. 134.
page 42 note 1 (1958), E.A. p. 392.
page 42 note 2 Part of the predominance of the colonial administration was based upon the lack of any constitutional authority for the courts to review administrative acts and decisions. Judges could use only the prerogative writs relied upon in such situations in England. The Uganda High Court case of Ex Parte Eastern Province Bus Company (1945) Limited v. Road Transport Appeal Tribunal (1959) E.A. 449, demonstrates the practical limitations of judicial relief in such situations. For a 1966 review of administrative law in Kenya, see McAuslan, J. P. W. B., ‘Administrative Law in Kenya – a General Survey’, in East African Law Today, especially pp. 55–65Google Scholar where he discusses judicial control.
page 43 note 1 Cross, Geoffrey and Hall, G. D. G. (eds.), The English Legal System (London, 4th edn. 1964), pp. 403–4.Google Scholar
page 43 note 2 Constitutional cases may be heard in a subordinate court, but appeal lies of right to the High Court. According to Allott (ed.), op. cit. this was a standard feature of pre-independence constitutions.
page 44 note 1 See Palley, loc. cit. p. 11, fn. 70 on this. It must be remembered that as the Executive Council, the Administration, and the Legislative Council were gradually Africanised during the latter stages of the colonial period, the judiciary remained, even after independence, the preserve of highly professional and, it could be argued, socially isolated Europeans.
page 44 note 2 Conversations with Professor Charles Black at Yale Law School, April 1976. And see generally Sawyerr, G. F. A. and Hiller, J. A., The Doctrine of Precedent in the Court of Appeals for East Africa (Nairobi, 1971),Google Scholar reviewed by Marshall, in The International and Comparative Law Quarterly (London), XXI, 1972, p. 200.Google Scholar
page 44 note 3 Read, James S., ‘Constitutions on the Move: constitutional and political developments in 1958’, In Journal of African Law (London), III, 1959, p. 39.Google Scholar
page 44 note 4 Ibid. p. 41.
page 45 note 1 Seidman, Robert, ‘Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa’, in Ohio State Law Journal (Athens), 35, 1974, p. 824.Google Scholar
page 45 note 2 Yash Ghai, loc. cit. p. 410. For a lucid expansion of this, see Palley, loc. cit. p. 20. Cf. also McAuslan's, explanation in ‘The Evolution of Public Law… (Part I)’, pp. 8–9,Google Scholar of the ‘dissonance’ between the liberal East African independence constitutions and the ‘autocratic administrative structure’ which Africans inherited at independence.
page 45 note 3 ‘Entrenched’ is used here to mean that, de minimus, the legislative requirements for constitutional amendment are more extensive than for the enactment of ordinary statutes.
page 46 note 1 Ghai, loc. cit. p. 412.
page 46 note 2 McAusban, , ‘The Evolution of Public Law… (Part I)’, p. 7.Google Scholar
page 46 note 3 The Kenya (Constitution) (Amendment No. 2) Order in Council, 1960, S.I. 1960, No. 2201, section 15.
page 46 note 4 The Kenya (Constitution) Order in Council, 1963, S.I. 1963, No. 1791.
page 47 note 1 The Kenya (Independence) Order in Council, 1963, S.I. 1963, No. 1968, sections 172–3, 175(1), 176(3), and 180.
page 47 note 2 The Constitution of Kenya Act, No. 5 of 1969, sections 67 and 84.
page 47 note 3 This is the ultimate conclusion, and a pervasive theme, of Ghai and McAuslan, op. cit. especially ch. xi.
page 48 note 1 McAuslan, , ‘The Evolution of Public Law… (Part I)’, p. 17.Google Scholar See generally, Bienen, Henry, Kenya: the politics of participation and control (Princeton, 1974);Google ScholarGertzel, Cherry, The Politics of Independent Kenya, 1963–8 (London, 1970);Google Scholar and Rosberg, Carl G. Jr and Nottingham, John, The Myth of ‘Mau Mau’: nationalism in Kenya (New York, 1966).Google Scholar
page 48 note 2 Ghai and McAuslan, op. cit. p. 511.
page 48 note 3 Ibid. p. 513; and Odinga, Oginga, Not Tet Uhuru (London, 1967), pp. 269–72.Google Scholar
page 48 note 4 Constitution of Kenya Amendment (No. 5) Act, No. 17 of 1966, clearly a reaction aimed at punishing the opposition and strengthening the executive, by-passed the Standing Orders of Parliament. Nothing similar had been suggested, of course, when K.A.D.U members had crossed the floor to join the Government in 1964.
page 49 note 1 Constitution of Kenya Amendment (No. 6) Act, No. 18 of 1966.
page 49 note 2 Cf. Okoth-Ogendo, H. W. O., ‘The Politics of Constitutional Change in Kenya since Independence, 1963–69’, in African Affairs (London), 71, 282, 01 1972, pp. 9–34.Google Scholar
page 49 note 3 E.g. the Development Plans and the Societies Act, No. 4 of 1968; see also Ghai and McAuslan, op. cit. pp. 444–56
page 49 note 4 E.g. the Societies Act, No. 4 of 1968.
page 49 note 5 The Daily Nation (Nairobi), 21 07 1973, pp. 4–5.Google Scholar
page 50 note 1 Ghai and McAuslan, op. cit. p. 303.
page 50 note 2 Ibid. pp. 409–10.
page 51 note 1 These two cases were straightforward and important examples of judicial review of administrative decisions in protection of the individual according to the provision prohibiting discrimination against Kenya citizens in the Kenya constitution: section 26 in Madhwa, and section 82 in the later Devshi case. But it must be remembered that section 82 (4) (a) of the Kenyan constitution allows legislation which discriminates against non-citizens, and this has allowed the Government to move against Asian non-citizen traders on a racial basis without offending section 82. See generally Ghai and McAuslan, op. cit. ch. xi.
page 51 note 2 Ibid. p. 421.
page 51 note 3 For an affirmation of the fundamental right to compensation in cases of compulsory acquisition of property, see New Munyu Sisal Estates, Ltd. v. Attorney-General of Kenya (1971), K.H.C.D. 120. An order by a Chief prohibiting preaching without his permission was held unconstitutional in Ali Bin Abubakar v. Republic (1972), K.H.C.D. 72. On the right to bail, even when defendant is awaiting appeal of a conviction for a serious crime, see Chimambhai v. Republic (No. 2) (1971), E.A. 343. On the general supremacy of the Kenyan constitution, even in a conflict with a provision of the Treaty of the East African Community, see Okunda v. Republic (1970), E.A. 453.
page 52 note 1 Ghai and McAuslan, op. cit. p. 455, and generally chs. XI and XIII.
page 52 note 2 This discussion of the rôle of the national judiciary in Tanzania will be without reference to Zanzibar despite the ratification on 26 April 1964 of the Articles of Union with Tanganyika. One reason is that the administration of justice was not an area of government which the Articles reserved for the United Republic. McAuslan, Both, ‘The Evolution of Public Law… (Part I)’, p. 11,Google Scholar and Morris and Read, op. cit. ch. 9, refer to the unusual constitutional and judicial situation in Zanzibar.
page 53 note 1 James, R. W. and Kassam, F. M. (eds.), in their introduction to Law and its Administration in a One Party State: selected speeches of Telford Georges (Nairobi, 1973), p. 4.Google Scholar
page 53 note 2 Cf. Bernard, Chidzero, T. G., Tanganyika and International Trusteeship (London, 1961),Google Scholar and Bienen, Henry, Tanzania: party transformation and economic development (Princeton, 1967).Google Scholar
page 53 note 3 The Tangaayika (Constitution) Order-in-Council, 1961; the second schedule is the independence constitution.
page 53 note 4 See Morris and Read, op. cit. ch. I, ‘The Framework of Indirect Rule in East Africa’, and ch. 5, ‘Native Courts: a cornerstone of indirect rule’ and in particular T. Georges, ‘The Courts in the Tanzania One Party State’, in James and Kassam (eds.), op. cit. p. 10.
page 53 note 5 Cf. Read, , ‘Constitutions on the Move’, pp. 39 and 41,Google Scholar and Seidman, , ‘Judicial Review and Fundamental Freedoms’, p. 824.Google Scholar
page 54 note 1 With the exception that in Tanganyika there were no Regional Presidents who had to approve of the appointment of a Chief Justice. In the case of Puisne Judges the position was the same in all three independence constitutions: appointment by the Head of State (the Governor-General in Kenya and Tanganyika, the President in Uganda), in accordance with the advice of the Judicial Service Commission. This process was opposed by all three elected Heads of Government, and its alteration was among the first constitutional adjustments made after independence.
page 54 note 2 McAuslan, J. P. W. B., ‘The Republican Constitution of Tanganyika’, in The International and Comparative Law Quarterly, XII, 1964, p. 504.Google Scholar
page 54 note 3 McAuslan, , ‘The Evolution of Public Law…(Part I)’, p. 18.Google Scholar
page 55 note 1 Ibid.
page 55 note 2 McAuslan, , ‘The Evolution of Public Law… (Part II)’, pp. 553–4.Google Scholar
page 55 note 3 Ghai, loc. cit. p. 419.
page 55 note 4 Nyerere, Julius, Freedom and Unity/Uhuru na Umoja: a selection from writings and speeches, 1952–65 (London and |Dar as Salaam, 1966), P. 6.Google Scholar These remarks were made at the first formal ceremony of the University College, Dar as Salaam, 25 October 1961.
page 56 note 1 Ibid. p. 131.
page 56 note 2 See Georges, loc. cit. pp. 15–26.
page 56 note 3 Proposals of the Tanganyika Government for a Republic (Dar es Salaam, 1962)Google Scholar.
page 57 note 1 Report of the Presidential Commission on the Establishment of a Democratic One-Party State (Dares Salaam, 1965).Google Scholar Ch. XXI is entitled ‘Rights of the Individual in the One-Party State’.
page 57 note 2 Georges, loc. cit. p. 27.
page 57 note 3 There have been some, though relatively few, constitutional and administrative law cases in which official authority has been challenged. For cases arising Out of the 1965 National Assembly elections, see Re K. A. Thabiti (1967), E.A. 772, and Ayo v. Simeon (1967), E.A. 229, in both of which election results were declared void, and Bura v. Sarwatt (1967), E.A. 234, and Mbowe v. Eliufoo (1967), E.A. 240. See also Isango v. Republic (1968), E.A. 140, in which Chief Justice Georges allowed the appeal of a local T.A.N.U. official from a conviction for corruption; and Kionywaki v. Republic (1968), E.A. 195, in which a petition alleging a wrongful arrest was dismissed; and In the Matter of a Petition by Habel Kasenha (1967), E.A. 455, in which the court acknowledged the Ouster of its jurisdiction by sectiOn 78(2) of the Local Government (Elections) Act, 1966. On the other hand, the High Court has demonstrated its independence by holding that derogatory remarks about the Vice-President did not constitute the crime of using obscene language likely to cause a breach of the peace: Republic v. Kunanga (1972), H.C.D. (Tanzania) 181. And there have been a series of cases upholding the right to bail: Republic v. Ally (1972), H.C.D. (Tanz.) 19; Republic v. Olale (1972), H.C.D. (Tanz.) 198; Republic v. Ahmed Panju (1972), H.C.D. (Tanz.) 161; and Jafferv. Republic (1972), H.C.D. (Tanz.) 92. Butcompared to Kenya and Uganda there are very few Tanzanian cases reported which involve constitutional or even administrative law issues.
page 58 note 1 Georges, loc. cit. p. 26.
page 58 note 2 See the discussion of the Tanzanian case of Iddi Oman v. Abdullah (1965), L.C.C.A. No.83 of 1965, in James and Kassam (eds.), p. 2.
page 58 note 4 Ibid. p. 6.
page 58 note 5 Ibid. p. 4.
page 58 note 6 See the Act to Prescribe the Procedures, Powers, and Privileges of the Permanent Commission of Enquiry, No. 25 of 1966. For the extension of the P.C.E.'s jurisdiction, see the Interim Constitution of Tanzania (Amendment Act), No. 4 of 1966.
page 59 note 1 See Norton, P. M., ‘The Tanzanian Ombudsman’, in The International and Comparative Law Quarter1y, XXII, 10 1973, p. 603.CrossRefGoogle Scholar
page 59 note 2 McAuslan, , ‘The Evolution of Public Law… (Part II)’, p. 170.Google Scholar
page 59 note 3 Norton, loc. cit. p. 624.
page 59 note 4 Ibid. Norton explains the publicity journeys made by members of the Commission around the countryside, the width of their jurisdiction, their function as the ‘poor man's lawyer’, and the fact that the simple straightforward explanations of the Annual Reports are comprehensible to most Tanzanians.
page 59 note 5 Ghai, Yash, ‘Notes Toward a Theory of Law and Ideology: Tanzanian perspective’, in African Law Studies, XIII, 1976, p. 31.Google Scholar
page 60 note 1 James, Rude W., ‘Implementing the Arusha Declaration – the Role of the Legal System’ in The African Review (Dar es Salaam), III, 2, 1973, p. 179.Google Scholar
page 60 note 2 Ibid. p. 190.
page 60 note 3 Mazrui, Ali A., ‘Violent Constitutionalism in Uganda’, in his Violence and Though essays on social tensions in Africa (London, 1969), p. 147.Google Scholar
page 61 note 1 Affirmed by the Court of Appeal for Eastern Africa (1960), E.A. 47.
page 61 note 2 See also Attorney-General of Uganda v. Katondwaki (1963), E.A. 323.
page 61 note 3 Ghai, , ‘Constitutions and the Political Order’, pp. 428–9.Google Scholar
page 61 note 4 Morris and Read, op. cit. pp. 150–1. Other factors are cited which distinguish Uganda from either Kenya or Tanganyika: e.g. longer contact with Europeans, and a higher percentage of literate Africans.
page 62 note 1 Except, of course, that Buganda had its own High Court until it was abolished in 1966. The relevant provisions relating to the Judicature of Uganda are sections 83–91.
page 62 note 2 McAuslan, , ‘The Evolution of Public Law… (Part I)’, p. 17.Google Scholar
page 62 note 3 An interim Constitution was passed by the National Assembly in April 1966, followed by the permanent Constitution the next year. Ghai has written in regard to the 1966 COUP led by Obote that ‘It is indicative of the strong roots that constitutionalism had taken in Uganda, that his regime soon began the search for a return to constitutionality’; ‘Constitutions and the Political Order’, p. 430.
page 63 note 1 Cf. Matovu, to the Rhodesian case of Madzimbamuto v. Lardner-Burke (1968),Google Scholar (2) S.A.L.R. 284, and (1969), I A.C. 645, and the Nigerian case of Lakanmi and Another v. Attorney-General (Western State) and Others (1970), S.C. 58/69. There are several commentaries on these cases.
page 63 note 2 On the 1967 constitution generally, see Mayanja, Abuu, ‘The Government's Proposals for a New Constitution in Uganda’, in Transition (Kampala), 32, 1967;Google Scholar and Akena Adoko, ‘The Constitution of the Republic of Uganda’, in ibid. 33, 1967, p. 10. At this time there was beginning to be some debate over the role of the judiciary in a developing society; see Au Mazriu, ‘Ideological Commitment and the judiciary’, in ibid. 36, 1968, p.47. But the debate never attracted the attention, participation, or sophistication that somewhat similar discussions did in Tanzania.
page 63 note 3 Reported in ibid. 38, 1971, p. 47.
page 64 note 1 And see Shah v. Attorney-General (No. 2) (1970), E.A. 523; Shah v. Attorney-General (No.3) (1070), E.A. 543; and Attorney-General v. Shah (No. 4) (1971), E.A. 50.
page 64 note 2 In at least three cases since the coup the High Court of Uganda has held against the Government in situations of some political sensitivity. See Sengendo v. Attorney-General of Uganda (1972), E.A. 140, affirmed by C.A.E.A. (1972), E.A. 356, holding the Government responsible for the unlawful shooting of the plaintiff by soldiers (although the incident had taken place prior to the coup). Cf. Namwandu v. Attorney-General of Uganda (1972), E.A. 108; and Musoke v. Uganda (1972), E.A. 137, in which the High Court upheld the right to bail, even where the crime was serious, if there was likely to be considerable delay before the trial. In an ambivalent decision about an incident which took place under the Obote Government in Nsubuga v. Attorney-General of Uganda (1974), E.A. I, the High Court, although finding a Minister's Detention Order not challengeable, nevertheless awarded the plaintiff Shs. 40,000 amages for false imprisonment and Shs. 60,000 for injuries inflicted by the police.
page 65 note 1 See Paul, James C. N., ‘Some Observations on Constitutionalism, Judicial Review and Rule of Law in Africa’, in Ohio State Law Journal, 35, 1974, especially pp. 862–9.Google Scholar
page 65 note 2 See Bienen, Kenya: the politics of participation and control. Robert Seidnian had a chapter on ‘Participation Feedback and Control’ in an unpublished manuscript.
page 65 note 3 E.g. James, loc. cit. and Ghai, ‘Notes Toward a Theory of Law and Ideology.
page 65 note 4 See James and Kassam (eds.), op. cit. and Seidman op. cit.
page 65 note 5 E.g. Ghai and McAuslan, op. cit. ch. xiii; Bainbridge, John, The Study and Teaching of Law in Africa (South Hackensack, N.J., 1972);Google Scholar and James and Kassam (eds.), op. cit. Tanzania's Permanent Commission of Enquiry clearly reflects a concern for these issues.
page 66 note 1 New York Times, 2 05 1976, p. E2.Google Scholar
page 66 note 2 The obvious example of this is the impact of the views of ChiefJustice Telford Georges of Tanzania, as expressed during his judicial tenure in that country from 1965 to 1971; see James and Kassam (eds.), op. cit.