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Sovereignty and Statehood of Zanzibar in the Union

Sovereignty and Statehood of Zanzibar in the Union

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Published by MZALENDO.NET
Sovereignty and Statehood of Zanzibar in the Union
Sovereignty and Statehood of Zanzibar in the Union

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Published by: MZALENDO.NET on Jan 22, 2010
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10/23/2011

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Sovereignty and Statehood of Zanzibar inthe Union
(Critical Comments on S.M.Z. v. Machano Khamis Ali & 17Others)
byIssa G. ShivjiProfessor of LawUniversity of Dar es Salaamishivji@cats-net.com
Paper to be presented to the Zanzibar Law Society Conference, Zanzibar 23
rd
April2005 on the occasion of the Union Day.
 
Sovereignty and Statehood of Zanzibar in the Union
(Critical Comments on S.M.Z. v. Machano Khamis Ali & 17 Others)
byIssa G. ShivjiProfessor of LawUniversity of Dar es Salaamishivji@cats-net.com
By way of a Preface
I am honoured to be invited by the Zanzibar Law Society to discuss with you a veryimportant decision of the Court of Appeal in
S.M.Z. v. Machano Khamis Ali & 17Others,
which your president called the treason case and but which I would prefer to callthe
Machano
case. This is to avoid confusion since there is not one but several treasoncases to Zanzibar’s “credit”!When I was approached by your president, I enthusiastically accepted to discuss the case because of my view that this is a very important case with far-reaching implications for the place of Zanzibar in the union and yet it has hardly been noticed, even amonglawyers. I did not realize the difficulty of the task I was undertaking. Yet, having madethe commitment, I could not back out.The difficulty does not arise from the perception that the discussion of the case may be politically sensitive, which it is, but from some peculiar features pertaining to theapproach and style in which the decision has been written. I will discuss this in a moment but before I do so let me at the outset make it clear that I am presenting this paper to youas a member of the academic community and not as a practising member of the Bar. Atthe Bar, whether we agree or disagree with judges, we always do it “humbly and withgreat respect”. So as not to encumber the language, I will not use those phrasesrepeatedly; but rather just say it at the outset that my disagreement, if any, does not imply2
 
disrespect to the Court or to honorable judges. Having thus exculpated myself, let me proceed with the task before us.
Some peculiar features
There are some peculiar features pertaining to both the way the Court of Appeal assumed jurisdiction in this case and the approach and style of the ruling. There are three featureswhich I would like to mention briefly because, to some extent, they affect my presentation of the critique.
1. Assumption of Jurisdiction
Machano and 17 other Zanzibaris were charged for treason under section 26 of the PenalDecree (Cap. 13) of Zanzibar. The charge alleged that these persons ‘by words andactions’ intended and ‘devised ways of treason in order to overthrow the Government of Zanzibar and to remove from authority the President of the Revolutionary Government of Zanzibar.’ Before the High Court of Zanzibar, presided over by the then Deputy Chief Justice of Zanzibar, Tumaka, DCJ, the accused persons raised a number of preliminaryissues. One of these, which was the subject-matter of the Court of Appeal’s ruling, statedthat the offence of treason could not be committed against the Government of Zanzibar.The High Court overruled the defense on all preliminary issues. The accused personsappealed to the Court of Appeal. The Court of Appeal heard the appeal including twoamicus curiae. Judgment was reserved but the Court indicated that they would give their  judgment expeditiously. I recall reading in the papers that the presiding judge, Kisanga,J,, answering journalists who were wondering at the delay in judgment said that the casewas a very important one and required intense research.While the judgment was pending, there were elections in Zanzibar and the new President,Honourable Amani Abeid Karume, was elected. Soon after, on 7
th
November 2000, to be precise, the prosecutor entered
nolle prosequie,
meaning that he withdrew charges, andthe accused persons were set free. Two weeks later, the ruling in the case dated 21
st
 November, 2000 was read by the Registrar in Zanzibar. Now let me pause at this stage,and for the benefit of non-lawyers, but perhaps even lawyers, raise an obvious query.3

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