The Directive Principles of State Policy versus Duties of the Individual in East African Constitutions I

In East Africa it is only the two constitutions in Tanzania, that is the Constitution of the United Republic of Tanzania, 1 977 and the Constitution of the Revolutionary Govemment of Zanzibar, 1 984 which have provisions providing far the fundamental objectives and directive principles of state pOlicl and duties of the individual towards the state and the community. 3 The constitutions of Kenya and Uganda do not have such provisions . How­ ever, the Draft Constitution of Uganda which is sti l l being discussed by the constituent assembly contains an elaborate part entitled "National Objectives and Directive Principles of State Policy and the Duties of the Individual". 4 But even in the case of the two consti­ tutions in Tanzania the inclusion of such provisions is a recent development. The intro­ duction of such clauses was effected in 1 984 by the Fifth Constitutional Amendment Act, 1 984 5 as far as the Constitution of the Uni ted Republic of Tanzania, 1 977 is concemed, and in Zanzibar by promulgation of a new constitution in 1 984 which replaced the Consti­ tution of the Revolutionary Govemment of Zanzibar, 1 979.


Introduction
In East Africa it is only the two constitutions in Tanzania, that is the Constitution of the United Republic of Tanzania, 1977  It is, however, significant to note that during the 1983/84 constitutional debate, the public refused to confine itself to the four corners of the CCM proposals. Among the issues which were not part of the CCM proposals but later introduced by the public and fervently discussed was the need of including a bill of rights in the constitutions. 8 This had con sistently and persistently been refused by the government of Tanzania Mainland since independence in 1961 and in Zanzibar since the revolution of 12th January 1964. In the arguments of both the protagonists and those opposing the enactment of a bill of rights in Tanzania there was no mention at all of the directive principles of state policy or duties of the individual or the community. As much as the motives of the government including fu ndamental objectives and directive principles of state policy were not given, the inclu sion in the Constitution of clauses on individuals' duties and obligations to the community and state has been interpreted as an attempt to whittle down the effect of the basic rights of the individua1. 9 These clauses have mainly been borrowed from the African Charter on Human and Peoples' Rights which also enumerates individuals' duties to the community and state.  As far as the incIusion of fundamental objectives and directive principles of state policy in the two constitutions of Tanzania is concemed, most likely the impetus originated from Zanzibar as it was in the case of the bill of rights. The press ure bearing on the party and the govemment to accept the incIusion of the bills of rights in both the Constitution of Zanzibar, 1984 and the Constitution of the United Republic, 1977 as amended in 1984 has also been attributed, among others, to Zanzibaris. The constitutional debate also wit nessed, among other issues, the demand of the Zanzibaris for more autonomy within the Union. The demand for more autonomy forced the then President of Zanzibar and Vi ce President of Tanzania, Aboud lumbe, to take political responsibility by resigning from office for what was interpreted as anti-union campaign in the govemment of Zanzibar. 11 However, it is believed that the strong reason was that delega[es from Zanzibar in the NEC meeting, citing the tyranny they had suffered under the revolutionary govemment, insisted in the incIusion of a bill of rights in their constitution instead of leaving the indi vidual in the hands of a benevolent and wise leader who is assumed to restrain himself from misusing his powers. 12 And since it would have been embarrassing for Tanzania, if the Constitution of Zanzibar had a bill of rights whereas that of the Uni ted Republic had none, 13 the NEC of the CCM directed the two govemments to incIude bills of rights in the two constitutions operating in Tanzania. 14 1.

The Background of the Fundamental Objectives and Directive Principles of State Policy in the Commonwealth
The incIusion of statements of national goals and directive principles in so me of the con stitutions of Commonwealth countries is contrary to the traditional Anglo-American view of what constitutes a constitution. 15 In that tradition al concept a constitution is enacted for 11 Kabudi, P.J., The United Republie of Tanzania After a Quarter of a Century: A Legal Appraisal of the sole purpose of establishing structures of govemment and its institutions and pre scribing judicially enforceable rules of law. Such a constitution is classified as being "prescriptive" . 16 Statements of national goals and directive principles are not part of the traditional Anglo-American view of constitutions because they are programmatic in nature, in the sense that they provide for a programme of a political, socio-economical and cultural development and ethical principles to be pursued by the govemment and other organs and they are normally non-justiciable, that is, they cannot be enforced in a court of law. A constitution containing such clauses is classified as "programmatic". 17 As pointed out by Lynch, most of the constitutions in the Anglo-American tradition are generally "prescriptive" and rarely "programmatic" to the extent that most of the lawyers schooled in this tradition tend to consider that there is no real place in a constitution and constitutional law for statements of a programmatic kind.
18 If at all they were to be included in a constitution then they would have to be placed in the preambular clauses and not in the main provisions of the constitution. be valid to those countries which followed the Indian precedent is articulated by two judges of the Indian Supreme Court, Hedge and Mukherjee, 11., when they stated that: "The purpose of the Directive Princip\es is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such social revolution the constitution seeks to fulfil the basic needs of the common man and to change the structure of uur society . It aims at making the Indian masses free in the positive sense. Without faithfully imp\ementing the Directive Principles, it is not possible to achieve the Welfare State contemplated by the Constitution. ,, 29 This bias of trying to build an egalitarian society and welfare state is also reflected in the Constitutions of Tanzania and Zanzibar in art. 8 (1) (b) and art. 9 (1) (b), respectively, stating that the welfare of the people shall be the primary purpose of government.
Actually, it is the Constitution Drafting Committee of Nigeria which came out with a long statement on the reasons and need for a constitution of a country not to inc1ude only provisions on division of powers and governance, but also principles, ideals and objectives of the social order it wants to achieve. In its report the Committee argued that: "A Constitution should not be simply a code of legally enforceable rules and regula tions; it is a charter of government, and government involves relations and concepts that are not amenable to the test of justiciability or capable of enforcement only in courts of law. The objectives may be in the nature of immediate specific policy goals or of long-term ideals ( ... ). Unless the goals and the fu ndamental attitudes and values that should inform the behaviour of its members and institutions are c1early stated and accepted, a new state is likely to find itself rudderless, with no sense of purpose and direction. By defining the goals of society prescribing the institutional forms and procedures for pursuing them, a statement of fu ndamental objectives and directive principles in our constitution seeks to direct and concert the efforts and actions of the people towards the achievement of these goals. In this way it seeks to unite the society into one nation bound together by common institutions and procedures, and above all an acceptance of common objectives and destiny. ,, 30 For newly independent states, the inc1usion of fundamental objectives and directive prin but is also slowly becoming a normal practice in the drafting of constitutions. The most common objective included in such constituitions, which is also not controversial in the discussion about fundamental objectives and directive principles of state policy, is that of the protection of the environment. 32 The inclusion of other objectives of state policy enumerating economic and social rights, such as the right to work, is controversial and has attracted criticism from some legal scholars on the ground that, although it is a good idea to have such noble goals in the constitution, it is nevertheless difficult to realize them in practice? 3 This may be one of the reasons why in most constitutions of countries follow ing the common law system such provisions are declared to be non-justiciable in courts of law.
Lynch identifies three main ways which have been used to incorporate provisions on fundamental objectives and directive principles of state policy in different constitutions. 34 These ways are first by simply incorporating them in a preamble, with no special effect being given; second is by incorporating them into a preamble, but with substantive provi sions as to their effect, and third is by incorporating them in the body of the constitution, with or without substantive provision to their effect. The Commission was further instructed to observe the "National Ethic" drafted by Nyerere and which has been characterised by some scholars as "another characteristically brilliant idea" of Nyerere.
4O The National Ethic was conceived as a convention providing for certain ethical principles which were the basis of the Tanganyika nation permeating the whole political, economic and social organisation of the state. Indeed, although it has not been said, the idea was influenced by the typical Anglo-Saxon attitude towards conven tions and customs, which are not enacted by the Parliament, but after usage for a long time acquire such a status of law that no one can abrogate them.
Indeed, the National Ethic was supposed to be a "kind of compelling moral and political obligation restraining the Govemment from excessive use of its powers, and instilling in the people a corresponding power and confidence to resist any excessive exercise of executive power.,, 41 It was believed by the Commission that, on ce the National Ethic was   instilled "in the moral imagination of the people" , 42 they would be able to resist misuse of power and dare to utter in the words of Nyerere, "We won't have it from anybody, Presi dent or President Squared, we won't have it" . 43 However, the National Ethic remained a pious wish of its framer as neither hirn nor the Commission came out with any proposals as to the means and mechanism of how the National Ethic was to be inculcated in the people and its objectives achieved. 44 It is this National Ethic, which the Presidential Commission adopted while it rejected the inclusion of a bill of rights in the Constituion, that has remained a dead letter and has seldom been referred to. The gist of the arguments advanced by the Presidential Commission in support of its decision was that a bill of rights limits in advance the measures wh ich the Govern ment may take to protect the young nation from threats and disorder. 45 The National Ethic has been seldom referred to by politicians, with exception of Nyerere hirnself, or by the courts. Actually, it is only on ce that the Court of Appeal referred to the National Ethic.
This was in the case of Godfrey farnes Ihunya and Others v. Republic 46 on charges of torture committed by police and security officers during interrogation of suspects of witch craft, in wh ich Nyalali, CI., strongly stated that those acts: "grossly contravened and undermined the National Ethic and Belief of our country which are based on respect for human dignity and liberty to life." Together with the adoption of the National Ethic as a means of developing a tradition of respect for freedoms and rights of the individual, the Commission recommended that these ethical principles should be included in the constitution in the form of a preamble. 47 Signifying the idea of a national ethic which morally binds both the people and their leaders, the Preamble of the Interim Constitution of the Uni ted Republic, 1965 provided, inter alia, that: [1980] TLR 197.
And when men are united together in a community it is their duty to respect the rights and dignity of their fellow men, to uphold the laws of the State, and to conduct the affairs of the State so that its resources are preserved, developed and enjoyed for the benefit of its citizens as a whole and so as to prevent the exploitation of one man by another: And whereas such rights are best maintained and protected and such duties are most equitably disposed in a democratic society where the govemment is responsible to a freely elected Parliament representative of the People and where the courts of law are free and impartial:" However, the preamble somehow changed with the adoption of a new constitution for Tanzania. The preamble to the 1977 Constitution is not as elaborate as the previous ones.
48 The Preamble provides, inter alia, that: "Whereas we, the People of the Uni ted Republic of Tanzania have firmly and solemnly resolved to found in our country a socialist society wh ich adheres to the principles of freedom, justice, fratemity and concord: And whereas those principles are only realised in a democratic society the Govem ment of which is responsible to a freely elected legislature representative of the ci ti zens and whose judiciary is independent and dispenses justice without fear or partiality of any kind, thereby securing the maintenance of all human rights and the most equitable discharge of the duties of all persons." Despite the existence of such a noble preamble in the Constitution of Tanzania, and the recommendation of the Commission that "everything possible should be done to win for these principles a strong commitment from the citizens", 49 the courts maintained a common law tradition that preambles do not form a justiciable part of laws or constitu tions.
48 The Tanganyika Independence Constitution was introduced by a long preamble to the Constitution in the following tenns: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of human family is the foundation of freedom, justice and peace: And whereas the said rights include the right of the individual, whatever bis race, tribe, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to life, liberty, security of the person, the enjoyment of property, the protection of the law, free dom of conscience, freedom of expression, free dom of assembly and association, and respect of his private and family life: And whereas the said rights are best maintained and protected in a democratic society where the govemment is responsible to a freely-elected Parliament representative of the people and where the courts of law are independent and impartial ... " The same preamble was retained in 1962 when Tanganyika adopted a Republican constitution. 49 Ibid. Both the High Court and the Court of Appeal of Tanzania have given their opinion on the status of the preamble in the Constitution. In the case of Hatimali Adam)i v. E.A.P. & T, 50 a Tanzanian national of Asian origin who was retired in order to facilitate Africanisation in the Corporation, challenged that decision on the ground that it was based on racial discrimination and thus repugnant to the basic rights guaranteed in the Preamble to the Constitution. In the High Court the late Biron, J., held that "the preamble to a constitution does not in law constitute part of the law of the land." During the hearing, Mr. Bishota, who was the counsel for the plaintiff in this case, had strongly, but in vain, submitted before Judge Biron that: "The preamble to the Interim Constitution states in no uncertain terms that all human beings are equal. The preamble is of course part of the Interim Constitution and there fore it is a fu ndamental piece of our national legislation.,, 51 The same position as that of the High Court, that a preamble to a constitution is not part of the constitution was reiterated by the Court of Appeal in the case of The Attorney General v. Lesinoi Nde inai and Two Others, 52 where Kisanga, J .A., held that: "It is true that a number of rights have been enumerated in the Preamble to the Consti tution. These include the ri ght of freedom of the individual. But this amounts only to a declaration of our belief in these rights. It is no more than just that. The rights them selves do not become enacted therehy such that they could be enforced under the Constitution . In other words, one cannot bring a complaint under the Constitution in respect of violation of any of these rights enumerated in the preamble." However, there are those who believe that the position taken by the courts in Tanzania on the status of the preamble to the Constitution was not correct. They argue that, despite the fact that common law considers preambles to be ancillary to a particular piece of legisla tion and of moral rather than legal effect, 53 still practice in East Africa, as evidenced in case law, has been different. They have argued that courts in East Africa have considered marginal notes to a section of a legislation and introductory part of a legislation to be law, 54 therefore, the preamble to the constitution in their argument forms part of it and is not merely declaratory or explanatory in nature. 55 The status of the preamble to the constitution in the French legal tradition is different to that in the common law system. Following the French legal tradition, in African countries which were former French colonies the preamble to the constitution is taken to be a justi ciable part of the constitution. In their part the preamble reiterates the principles promul gated by the French Revolution of freedom, justice and fratemity as part of the fundamen-I b· · f 56 ta 0 JectIves 0 state.

Constitutions
The provisions contained in the fundamental objectives and directive principles of state policy in the constitutions of the United Republic of Tanzania have been intluenced in their word import from the National Ethic as issued by Nyerere. However, in the case of Zanzibar the precedent adopted in the drafting of its fundamental goals and objective principles of state policy seems to be the Constitution of the Federal Republic of Nigeria of 1979. 57 Actually, the provisions are in pari materiae except that in the case of Zanzibar they stress the need to fo llow the policy of socialism and self-reliance, whereas the Con stitution of Nigeria emphasizes unity and faith, peace and progress. 58 Fundamental objectives and directive principles of state policy are contained in chapter two of the respective constitutions of Tanzania  Ibid. Article 13 of the Constitution of Nigeria, 1979 resembled anicle 8 of the Constitution of Zanzibar; an. 14 (I) to an. 9 (I); an. 14 (2) (a) to ;u1. 9 (2) (a); art. 14 (2) (b) to an. 9 (2) (b); an. 14 (2) (c) to an. 9 (2) (c); an. 14 (3) to an. 9 (3); an . 15 (3) (a) and (b) to an. 10 (I); an. 15 (5) to an. 10 (2); an. 16 (I) (a) and (b) to an. 10 (3); an. 16 (I) (c) to an. 10 (4); art. 17 (I) (a), (b) and (c) to an. 10 (5); ans. 18 and 20 to an. 10 (6). omission by any person or authority or as to whether any legislation or any judicial decsion is in conformity with the provisions of this part of this Chapter." The Constitution of Zanzibar, under artic\e 8, which enjoins the govemment and all its organs to apply and observe the principles, is silent on whether its provisions can be enforced or not. Therefore, despite their nature and the position in constitutions of other countries, it may theoretically be safely assumed that they are justiciable in Zanzibar, although up to now there is no case their enforcement has been filed in the Zanzibar courts .
Despite their non-justiciability in the Constitution of Tanzania, still under artic\e 7 (\) of the Constitution, all organs of the state, i.e. the Executive, Legislative and ludicative, are required to take cognizance of that chapter, observe and apply all its provisions. The artic\e stipulates that: "Notwithstanding the provisions of sub-section (2), it shall be the duty and re sponsi bility of the Govemment, all its organs and all persons or authorities exercising executive, legislative or judicial functions to take cognizance of, observe and apply all provisions of this Part of this Chapter." A set of objectives and directive principles are enumerated in artic\es 8 and 9 of the Constitution of Tanzania. Those of Zanzibar are contained in artic\es 8, 9 and 10 of the Constitution. They provide for political, economic, social, health, educational and cultural objectives. Living to the ideological aspirations of the time when they were drafted, both constitutions state categorically that the state will be based on the principles of Uj amaa na Kujitegemea, that is, African Socialism and self-reliance, 59 and on the principles of democracy and social justice. 60 Artic\e 9 of the Constitution of Tanzania reproduces, with minor amendments to inc\ude aspects of Uj amaa, most of the principles enunciated in the National Ethic, and is exactly the same as the objectives and goals contained in the Constitution of the CCM. It is to be seen whether in future, with the introduction of the multi-party system in Tanzania power. 64 On economic objectives the constitution emphasises the need for the state to control the national economy in such a manner as to sec ure the maximum welfare of the people and for the state to manage and operate the major sectors of the economy. 65 It inc\udes the govemment being required to direct its policy towards ensuring the promo tion of a planned and balanced economic development, and that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of the few individuals or a group. 66 The social objectives provided for by the Constitution of Zanzibar resemble some of the fundamental rights and freedoms of the individual contained in the bill of rights part of the constitution. Some of them like the independence of the judiciary in fact fit to be considered as political objectives rather than social objectives as designated by the Consti tution of Zanzibar. It is stated under the provision on social objectives that, in furtherance of its policy, the govemment "shall ensure that every citizen shall have equality of rights, obligations and opportunities before the law; that the sanctity of the human person shall be recognised and human dignity shall be maintained and enhanced and that the inde pendence, impartiality and integrity of courts of law, and easy accessibility thereto shall be secured and maintained.,, 67 In the implementation of health, educational and cultural objectives, the state is required to direct its policy towards ensuring that there are adequate medical and health facilities for all persons, equal and adequate educational opportunities at all levels and that Zanzi bar culture is enhanced and protected. 68 In wh at has been termed as human resources utilisation objectives, the state is supposed to ensure that every able bodied person does work, and that provision is made for public assistance in deserving cases or other conditions of need inc\uding the aged, the sick, the children and the crippled. 69 The Constitution of Tanzania on the other hand provides for all the objectives in one artic\e, that is artic\e 9 (1). The artic\e provides in extenso that: 68 Article 10 (6) of the Zanzibar Constitution.
through the pursuit of the poliey of Ujamaa and Self relianee, whieh is the ereative applieation of socialist principles to the conditions prevailing within the Uni ted Republic. Consequently, the state authority and all its agencies are required to direct all their policy and business towards securing -(a) the maintenance of respect and due regard for the dignity and the other rights of man ; (b) the preservation and compliance with the requirements of the laws of the land; (e) the eonduct of publie affairs in a manner designed to ensure that the national resources and heritage are harnessed, preserved and applied toward the common good and the prevention of the exploitation of one man by another; (d) the promotion of centrally planned and balanced development of the national economy; (e) that every ab le bodied person has opportunity to work, work being lawful activ ity whereby a person earns his livelihood;

2.
Every Tanganyika citizen is an integral part of the nation and has the right to take an equal part in government at local, regional, and national level.

3.
Every individual eitizen has the right to freedom of expression, of movement, of religious belief, of assoeiation within the eontext of the law, subjeet in a11 eases only to the maintenanee of equal freedom for all other eitizens.

4.
Every individual has the right to reeeive from the soeiety proteetion of his life, and of property held aeeording to law, and to freedom from arbitrary arrest. Every eitizen has the eorresponding duty to uphold the law, eonstitutionally arrived at, and to assist those responsib1e for the law enforeement.

5.
Every individual eitizen has the right to reeeive a just return for his labour, whether by hand or brain.,, 70 It was further provided in the guidanee issued to the Commission, inter alia, that: (i) The objeet of Government sha11 be to establish eomplete equality of opportunity for all Tanganyika eitizens in all fields of endeavour. (ii) There shall be no diserimination against any Tanganyika eitizen on grounds of raee, tribe, eolour, sex, creed, or religion. Temporarily this shall not preclude the Government or any other appropriate authorities, from taking steps to eorreet imbalanee whieh results from past diserimination on any of these grounds. (iii) There shall be no propagation of group hatred, nor of any poliey whieh would have the effeet of arousing fe elings of disrespeet for any raee, tribe, sex or religion. (iv) All Tanganyika eitizens shall be equa11y subjeet to the laws of the eountry, and no one whatever his politieal, social or eeonomie position should be able to claim or obtain exemption from their implementation. (v) All Tanganyika eitizens shall have the right to fair trial by an impartial judieiary whose responsibility is the upholding of the laws eonstitutionally enaeted.,, Augustino Ramadhani (as he then was), applied without any reservations or qualifications the provision of UDHR on the rights of a child, especially emphasising that in any deci sion the welfare of the child is paramount and comes first.
But it is imperative to note that this is only one provision in this part of the constitution upon which the courts have ai red their positions. Probably they may adopt the same or a different position when they are deliberating with other provisions for example on social, educational and human resources utilisation objectives, and especially if they conflict with the provisions on basic rights and freedoms of the individual.
Tuming to India where a number of cases dealing with directive principles have been decided, initially, the general attitude of the judiciary was that the directives should not only be surbordinated to the fundamental rights but could not be given effect in a conflict, in particular case, with the operation of any other provision of the Constitution far the mere reason that the directives were not enforceable in a court of law. 76 The courts have further held that the state has a limited power to make laws, in accordance with the direc tive principles, subject to the powers conferred on the Executive and the Legislature and also to other provisions of the constitution. 77 In recent decisions the judiciary has somehow modified its positIOn by stating that, although the directive principles should conform to and run subsidiary to the chapter on fundamental rights, it would not reject the directive principles but would give it a harmo nious interpretation, provided the executive and the legislature, while implementing the directive principles, did not take away ar abridge the fu ndamental rights.

Background to the Duties of the Individual in Tanzania
The African Charter on Human and Peoples' Rights (Afr.CHPR) has had an impact in the changes made in 1984 to the two constitutions in Tanzania. It seems to a certain extent to have influenced some of the provisions on duties of the individual in the Constitutions of the Uni ted Republic of Tanzania and the Revolutionary Govemment of Zanzibar, respec tively. The Charter which came into force on 21 st October, 1986 has already been ratified or acceded to by 41 African countries, making it the largest regional human rights system. 82 It provides for both aspects of furtherance of human rights, that is the promotion and protection of human rights. WeIch explains that while "promotion" involves steps to bolster awareness of human rights, their "protection" means acting directly on behalf of its individuals whose rights have been abridged. 83 Thus the "promotion affects rights, promotion effects them.,, 84 The Charter, which contains an elaborate preamble and 68 articles is divided into three parts. Part one is on rights and duties (articles 1-29). It is subdivided into two chapters, with one of the chapters providing for human and peoples' rights (arts. 1 to 26). The rights are also divided into three categories: civil and political rights (arts. 1-12), economic, social and cultural rights (arts. 15-18), and peoples' rights (arts. 19-24). The duties (arts . on Human and Peoples' Rights, the mandate of the commis si on, the procedure for the commission, and the applicable principles.
The Charter contains classical rights and freedoms of the individual as other regional and international human rights instruments, and it has much in common with these instru ments, 85 of course with some modifications and variations. In so me cases it omits certain rights which are provided in other instruments and includes some which are not contained in such instruments. 86 The entrenchment of the civil and political rights in the Charter affirms the importance attached to them despite the fact that unlike other regional instru ments, the Afr.CHPR includes other categories of rights. The inclusion of civil and politi cal ri ghts as weil as economic and social rights is analysed to affirm the indissoluble link between the two categories of the rights as reflected in their universal conception rather than dissolution of the former 87 It is argued that in these two fields, the Afr.CHPR does not create completely new rights which are not known in international human rights decla rations. The basis remains to be the UDHR and, as pointed by Sieghart, the Afr.CHPR brings all the rights together in one instrument. 88 Despite the UDHR being the instrument from which the Afr.CHPR draws its inspiration, the fo llowing rights in the UDHR do not appear in the African Charter: the right to privacy, the right to nationality, the right to social security, the right to leisure and rest, and the right to marry and find a family. 89 The African Charter itself has been applied by the courts, for example in Algeria and Tanzania in interpreting their respective bills of rights . In the case of Tanzania the courts have unqualifiedly referred to the Charter in establishing wh ether a customary law conforms to the bill of rights. . ,, 92 Ives In soclety .
It is, however, important to note that, the inclusion of the duties of the individual is not exclusively found in the constitutions of Tanzania or Africa for that matter, but also in constitutions of other countries in Asia and Latin America. Among the other Common wealth states, as also pointed out by the Court of Appeal of Tanzania in Daudi Pete's case, it is the Constitution of India, which also includes a chapter on fundamental duties of the individual in a detailed and imperative manner. Despite this similarity, the Court of Appeal of Tanzania has gone at length to show the differences. Nyalali, CI. points out that: "There is however a significant difference between our (Tanzania) situation and that of India on this point. First, the fundamental or basic duties recognised by our (Tan zania) Constitution are attributed to human beings, whereas those under the Indian Constitution are attributed to Indian citizens only. ,, 93 The second difference between the provision on duties of the individual as provided in the Constitution of India and that of Tanzania  to work starts with a general statement of glorification of labour by stating that: "Labour alone creates the material wealth of society, and is the source of well-being of the people and the measure of human dignity." The reference to the weil being of the people and human dignity as the basis for requirement of the obligation to work is also made in article 22 of the Constitution of Zanzibar wh ich stipulates obligations of the people. It is on the basis of that the individual is obliged to "voluntarily and honestly" participate in wh at is termed as "Iawful and productive" work. The voluntary requirement in partici pating in work is watered down by another clause in the same provision which stipulates that an individual is obliged to observe labour discipline and to strive to achieve the indi vidual and communal production targets as required or prescribed by law. 109 In an effort to conform with international and regional human rights and labour instru ments, the Tanzanian Constitutions hasten to provide in art. 25 (2) that there shall be no forced labour in the Uni ted Republic of Tanzania. The same guarantee against forced labour is also found in art. 22 (2) of the Constitution of Zanzibar. This provision is not only contradicted with what has been stated above, but also with a long list of exceptions in art. 25 (3) to what is considered as forced labour by the constitution. Therefore, no work is deemed by the constitution to be forced labour, compulsory labour or inhuman service, if it is part of a sentence or order of a court or if it is reasonably necessary in a case of emergency or calamity . Labour required by members of discipline forces, i.e. the military and police, as part of their duties is also exempted from the categorisation of forced labour. The exemption includes such labour or service which the state thinks that it is normal service or civil obligation required for the weil being of the society, compulsory national service required by law and the mobilisation by the state of human resources for what it considers to be necessary for national social and economic survival, progress or d f· I d .
Under art. 26 the individual is obliged to comply with the Constitution and abide by the laws of the country. This article provides further that every person, which means that also a non-citizen, is entitled to institute proceedings for the protection of the Constitution and Iegality. However, this obligation is subjected to the procedure provided for by law in instituting such proceedings. Together with the obligation to obey the constitution and the laws of Zanzibar the provision article 23 (1) requires the individual "to uphold the honour and dignity of the constitution and other laws of Zanzibar." The Constitution provides for the duty to safeguard public property. Articles 27 (I) and 23 (2) of Tanzania and Zanzibar, respectively, place the duty of safeguarding and protecting natural resources, state property and al l property jointly owned by the people, as well as respecting another person's property to every person. The duty to safeguard state and communal property is amplified under articJe 27 (2) of Tanzania and articJe 23 (3) of Zanzibar to include the duty to combat all forms of misappropriation and was tage of such properties. The provision in the Constitution of Tanzania incJudes also an obligation to run the economy of the nation assiduously, with the attitude of people who are masters of the fate of their own nation. While that of Zanzibar in its provision on this duty of the individual adds the phrase "to promote the economy of Zanzibar conscientiously as future decision makers of their state." The Constitution of Zanzibar provides in articJe 23 (4) for the obligation to protect nature and preserve its riches and to respect the national dignity to maintain public order.
One of the duties which is extensively provided for in the constitution of Tanzania is that dealing with national defence. The provision on this subject in the Constitution of Zanzi bar is formulated in a precise manner. This duty is restricted to citizens only and is pro vided also as a ri ght of an individual. ArticJe 28 (I) stipulates that every citizen has the inalienable and inviolable right and duty to defend, protect and promote the independence, sovereignty, territorial integrity and unity of the nation. The articJe empowers the parlia me nt to enact appropriate laws for facilitation and regulation of the service by the people in the armed forces and in the defence of the nation. This articJe deals with issues connec ted with national defence such as capitulation and treason. The incJusion of these items may be among other things a reaction to the events which took place in Tanzania few years before the bill of rights was incorporated in the constitution. These are the occupa tion of a piece of land of Tanzania by armed forces of fascist Idi Amin of Uganda and the ensuing war against hirn which was waged by Tanzania in 1978 as weil as the treason trial on some soldiers and civilians who tried to overthrow the govemment by unconstitutional means. Therefore, articJe 28 (3) stipulates in no uncertain terms that: "No person shall have the ri ght to acknowledge or sign an act of capitulation, nor accept or recognise the occupation or division of the Uni ted Republic or any part of its national territory and, subject to this Constitution and any other law, no person shall have the right to prevent citizens of the Uni ted Republic from fi ghting against an enemy who has launched an attack upon the country." On treason articJe 28 (4) provides that: "The offence of treason as defined by law shall be the gravest crime against the United Republic." 7.

Rights of the Community vis a vis Rights of the Individual
This aspect of societal or communitarian rights as a limiting factor in the enjoyment of individual rights and exercising of individual freedoms has received considerable atten tion among Tanzanian academics and the Tanzanian bench. While one of the High Court judges who has been in the forefront in delivering bold decisions relating to the bill of rights and, therefore, giving article 30 which introduces the concept of rights of the community in the Tanzanian constitution a very restrictive interpretation, to the contrary the Court of Appeal , and especially the Chief Justice seem to a certain extent more inclined in favouring communitarian rights. Mwalusanya, J., in the case of Daudi s/o Pete v . R 111 restricted the application of this provision by holding that: "( ... ) the overriding of rights of the individual by rights of the community does not entail 'arbitrary action' on the part of the community or its institutions. The restriction to protect communal rights has to be done according to law.,, 112 In appeal against the judgment of Mwalusanya, J., the Court of Appeal was availed an opportunity in the case of The D. P. P.

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Ibld., p. 28. presents the same position by arguing that: "( ... ) it is recognized that human beings do have two basic capacities, that is -every human being exists both as an individual and as a member of the community to which he or she belongs. In the capacity of an individual, every person is construed to have basic rights against all others; but as a member of the community, such person is seen to have basic duties towards others in the community. The corollary of this position is that the community on its part also has basic rights and duties towards its members. In other words, rights and duties are inter-dependent and there is inter -independence between rights and duties of every individual person on the one hand and rights and duties of the community to which he or she belongs on the other hand".

298
Art. 29 (5) states that: "For the purposes of the better enjoyment by all persons of the rights and freedoms specified in this Constitution, every person shall so conduct himself and his affairs as not to prejudice the rights and freedom of others or the public interests." Although Chief lustiGe Nyalali hastens to qualify his position by arguing that the over riding of rights and duties of the individual towards the state and the community does not, however, entail arbitrary ac tion on the part of the community or its institutions, is not enough (0 guarantee the rights of the individual which are supposed to be paramount. Nyalali points out arbitrary ac tion is also prohibited by article 30 (2) which emphasises that it must be done according to law, meaning that the rights of an individual can only be taken away by an existing law . 120 Left at that level the statement "according to law" does not assist much in ensuring that laws which sanction arbitrary actions are not passed by the legislature touching on items outlined under art. 30 (2) of the Constitution.
The position of Chief lustiGe Nyalali on this aspect is contradictory, especially when he introduces wh at he terms to be the logical and commoness qualification to the overriding nature of communal rights and duties. In a very compounded and circumlocutory fashion he argues that: "A basic right or duty of the individual stipulated under the Constitution cannot be overridden by a non-constitutional right or duty of the community, because the consti tution is the basic or fundamental law of the land and cannot therefore be overridden 121 by any other law of the land".
It is imperative to note the warning by Wade that parliament can pass a law which is wide enough to justify a dictatorship based on the tyrannical but perfectly legal principle quod principi placuit legis habet vigorem.
122 What is required is more than compliance to a law. As pointed out by Mwalusanya, l.: "But it is not enough for the party supporting the legislation to be able to point to "a law" in the sense simply of an Act duly passed by the legislature. If the Act relied on should itself be declared inoperative as violating a fu ndamental constitutional ri ght it is not "law " . 123 The Attomey General of the Uni ted Republic represents an extreme position in interpre tation of article 30, which, if it was adopted by the courts, will not only make the bill of individual flows from this premise that a community in danger or need puts everybody in danger or need, whereas an individual in danger or need is alone in danger or need".  rights an empty shell, but will completely nullify it. 124 The Attomey General recently invoked article 30 in justifying the re-introduction of mandatory corporal punishment in Tanzania by arguing that it is in the interest of the community at large. l25 It has become the practice of the office of the Director of Public Prosecution in the Attomey General Chambers to invoke article 30 in any challenge on a piece of legislation deemed to be violative of the bill of rights. 126 The position of so me academics is that the respect for individual rights and freedoms in Tanzania has not been in any way affected with the recognition of community rights. They are of the opinion that the recognition of the rights of the society as a whole has strength ened the rights and freedoms of the individual, in the sense that he enjoys rights at both the personal level and community level. 127 Representing this position, Mwakyembe concludes that: "Experience in democratic societies has not been that of substituting individual rights and freedoms for the community rights, but rather of building the lalter mutatis mutandis upon the former. Primary constitutional respect continues to be accorded to individual rights and freedoms which essentially constitute the basis for realisation and enjoyment of other general rights and freedoms" . 128 May be that is the only logical and plausible way of interpreting the provisions of articles 30 and 24 of the Constitution of Tanzania and Zanzibar, respectively, if at all the rights and freedoms of the individual are to be meaningful. The rights and freedoms of the indi vidual are not only basic or fu ndamental, but also primary and paramount.
These provisions, when compared to some of the clauses included in the part of the Con stitution providing for limitation and derogation from the basic rights and freedoms guaranteed by the constitution, leaves a lot to be desired. These are for example the limi tation of rights and freedoms necessitated by ensuring the interest of development plan covers also imposing restriction, supervISIon and control of the establishment and management of the functions of co-operatives and body corp@rate of individuals in Tan zania. The articles emphasises that, the existing laws providing for items outlined above and laws which may be enacted in the future in that effect are lawful and they cannot be challenged that they are violative of the bill of rights. Read literally, these provisions seem to encompass wide and cumulative limitations on rights and freedoms guaranteed by their respective constitutions. This justifies fears of so me of the Tanzanian lawyers that the bill of ri ghts has been "rendered an empty shell,, 129 by the constitution itself by giving rights by one hand and taking them away by the other hand. It requires ingenuity and boldness from the judges in deciding whether a given societal value is more important than one or the other of the gran ted ri ghts and freedoms of the individual .

ConcIuding Remarks
It has been shown how the courts in Tanzania have applied, in a positive way, the clause of fu ndamental objectives and directive principles of state policy which incorporates the UDHR in the interpretation of the bill of ri ghts. At the same time it has also been shown how the provisions on duties of the individual to the state and community, if not strictly interpreted, may lead to the erosion of even those rights al ready guaranteed in the bill of ri ghts.
The fu ndamental objectives and directive principles of state policy remain to be signifi cant both to the constitution and in the development a new culture of constitutionalism and accountability in Tanzania, especially after the recent re-introduction of pluralism in politics. It is desirable after the introduction of a multi-party system after three decades of a one-party system to conduct a discussion involving all the people, the political parties and different groups on what are the required or essential fundamental objectives and directive principles of state policy. Such a debate is necessary as part of the process of building a national consensus on various fu ndamental issues. The refusal of the ruling political party and its govemment in Tanzania to convene a constitutional conference or a national convention to discuss and adopt a new constitution after the re-introduction of a multi-party system 130 has denied the people a chance of deliberating among other things on the type of fundamntal objectives and directive principles of state policy needed to meet the new challenges confronting the society. 130 See Uhuru Newspaper of 9th June, 1993 reporting on a statement by the Minister of Justice and Constitutional Affairs to the Parliament refusing to convene a constitutional conference on the reason that thefe is no dictator who has been overthrown nor a revolution arising out of war in Tanzania.
As far as the inclusion in the constitutions of Tanzania and Zanzibar of clauses on indi viduals' duties and obligations to the community and the state is concemed, they do give an authoritarian government a legal justification upon which it can trample on individuals' rights with impunity . It needs a bench of judges who are very sensitive to the inviolability and primacy of rights and freedoms of the individual to draw the necessary limit for the duties. Otherwise the conflicts of interest which are inherent between the duties and rights may lead to whittling down all of the rights and freedoms seeured by the constitution. The individual must remain in the centre of the bill of rights and duties, and the duties are not meant to signify the suppression of the individual and its inalienable rights.