Constitutionalism and Democratic Governance in Africa: - PULP

24 Chapter 2
amendment in the context of legislating. Therefore, contemporary
constitutional review has been referred to as the process whereby a
constitution is revised with the possibility or intention of changing it if
considered desirable or necessary, often developed through consultation
that requires participation by stakeholders and individuals in society, in
order to bestow legitimacy on the process and thus on the actual
Constitution. 42 It is a process that may culminate in a completely revised
constitution or one that is amended to make its original form
unrecognisable. However, a more appropriate term for this form of
constitutional review is constitutional reform. The term constitutional
reform has become commonplace when referring to the process of
constitutional review, analysis, revision, amendment, and adoption of a
new constitution. Hence, review, as an appraisal or evaluation, is an
inherent part of the constitutional review process but is only one
component in constitutional reform. 43 Hence, in constitutional reform
there is often an inevitable process of constitution-making.
4 Constitution-making vis à vis constitutionalism
in Tanzania: How far has it come?
According to Shivji constitution-making includes both amending an
existing constitution as well as making new constitutions, but he concedes
that the term is often used to refer to making of new constitutions only. 44
The process of constitution-making is central in a democratic political
system because it is from the constitution that the rulers claim to derive
their authority and legitimacy. This claim cannot hold if the process of
making a constitution did not involve the people. 45 It is significant that any
constitution should be legitimate. Balkin puts it that legitimacy means
something more than mere legal validity in a positivist sense, and
something less than complete justice. Contemporary constitution-making
or constitutional reform demands that the process is given as much
importance as the substance or content of the constitution. 46 Popular,
inclusive, participatory and democratic are all key aspects of a successful
process that bestows both legitimacy and credibility on the supreme law of
the country. This kind of process contributes to making the constitution a
living document by taking it to the people so that they are in a position not
42 L Oliver Constitutional review and reform and the adherence to democratic principles in
constitutions in Southern African countries (2007) 3. See also BM Nchalla ‘Constitutional
review and reform: A Tanzanian perspective’ Paper presented at a public awareness
seminar on the Constitution of the United Republic of Tanzania of 1977, organised by
the Makumira University College Law Society, at Tumaini University, Makumira
University College, Arusha, Tanzania, on 20 May 2011 1-2.
43 Oliver (n 42 above) 5.
44 Shivji et al (n 9 above) 47.
45
As above.
46 JM Balkin ‘Respect-worthy: Frank Michelman and the legitimate constitution’ (2003-
2004) 39 Tulsa Law Review 485 486.