By Evarist Baimu Nyaga Mawalla - Home

Those who exist above the people must have their laws exist above the people. Itis the people that must serve and obey bourgeois laws. It is not bourgeois lawsthat must serve the people. This is so because in the final analysis bourgeois lawsare made to protect the interests of the bourgeoisie.There us everything for those who argue that those who advocate the narro approachon the ouster clause are indeed using the law to protect the interests of the ruling classat the expense of the individual citizen. The ouster clauses is a sample of what Pro.Issa G. Shivji terms the instrumentalist aspect of the law. He says in his work Law,State and the Working Class in Tanzania 46 that.“Both law and state in the final analysis serve the interests of the ruling /dominantclass – in some cases law is used as a direct instrument tool of the ruling class andserves its immediate interests without mediations of intermediate links”.Thus the ouster clauses are used to cover up or hide the errors or blunders of the rulingclass and its statutory bodies.The judiciary has therefore a duty to see to it that the ruled are not oppressed by therulling class unnecessarily or purely to serve the immediate interests of those who clingto power. The Judiciary has a role to enhance the rights of the people. It is though thecourts of law that the people can defend their rights.44. (1910) 2K.B 859 at p.88045. (1986) Heinemann & T.P.HIn the judiciary the world over, there exists two broad strands of judicial approachtowards statutes general.There have been those judges who have taken the view that, without usurping thefunctions of Parliament, a judge has the duty to interpret the law, as far as he can, in away which accords with social and personal justice, which upholds rather than destroysthe civil liberties of the individual, which looks with suspicion and not equanimity on theincreasing encroachment of the state and its various statutory bodies in the lives ofcitizens. The judges who espouse the broad approach to ouster clauses in my consideredview come close to this first category.There is another kind of judge who sees his task as maintaining the authority of the State,interpreting Acts of Parliament narrowly, supporting the words of the law in preference tothe justice of the case, and affirming that it is for parliament to change the law that turnsout to be unjust or absurd and not for judges to achieve that result through statutoryinterpretation. This latter kind of judges has been dubbed “Leaky Umbrella” in theimportant task of protection of the civil liberties of the citizens.129