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LEGALITY OF ADDITIONAL MATTERS OUTSIDE THE ARTICLES OF UNION
BY MUSSA, ALI. UBWA
TABLE OF CONTENT CONTENT PAGE
1. List of statutes ……………………................................................................ ii 2. List of the Cases …………………………………………………………….iii 3. Abbreviation ……………………………………………………………….. iv 4. Acknowledgement …………………………………………………………. 5. Dedication …………………………………………………………………..
CHAPTER ONE 1. 2. 3. 4. 5. 6. 7. General Observation …………………………………………………. 1 Historical background of Union…………………………………………...2 Zanzibar ……………………………………………………………….2 Tanganyika ……………………………………………………………5 Why Union? …………………………………………………………...7 Merits of Union ………………………………………………………..9 Demerits of Union……………………………………………………..10
CHAPTER TWO 1. 2. 3. 4. 5. 6. 7. The Union …………………………………………………………….16 The Articles of Union ……………………………………………..….18 Ratification of Articles of Union …………………………………..….20 Matters within Articles of Union …………………………………..….24 Additional Matters …………………………………………………….25 Additional matters from 1964 – 1977………………………….………26 The 1977 Permanent Constitution ……………………………..………27
CHAPTER THREE. 1. Legality of the Additional matters ………………………………………………34 2. Complaints made towards the 1964 Union…………………………..…………..38
CHAPTER FOUR. 1. Recommendations………………………………………………………………..44 2. Conclusion ……………………………...……………………………………….47 3. Bibliography……………………………………………………………………..50
LIST OF STATUTES
1. The Articles of Union, 1965 2. Union of Tanganyika and Zanzibar Act, 1964 3. Interim Constitution, 1965 4. The Constitution of United Republic of Tanzania, 1977. 5. The Constitution of Zanzibar, 1984. 6. Vienna Convention Treaty.
LIST OF THE CASES 1. SMZ Vs Machano Khamis & 18 others CA No 171/2000 2. Mac Cormick Vs The Lord Advocate (1953) Scottish case. 3. A.G for Canada Vs A.G for Ontario (1937)
AMNUT NATIONALISTS UNION OF TANGANYIKA ANC NATIONAL CONGRESS ASP BOT TANZANIA CCM MAPINDUZI CUF UNITED FRONT EAC COMMUNITY
ALL MUSLIM AFRIKAN AFRO SHIRAZ PARTY BANK OF CHAMA CHA THE CIVIC EAST AFRICAN
EACB EAST AFRICAN CURRENCY BOARD LEGICO LEGISLATIVE COUNCIL MPs MEMBER OF PARLIAMENT OIC ORGANISATION OF ISLAMIC COUNTRIES TAA TANGANYIKA AFRICAN ASSOCIATION TANU TANGANYIKA AFRICAN NATIONAL UNION UTP UNITED TANGANYIKA PARTY ZNP ZANZIBAR NATIONAL PARTY ZPPP ZANZIBAR PEMBA PEOPLES PARTY
I do humbly submit my thanks to God the Almighty to bestow on me the sacred knowledge which I subsequently managed to write this dissertation. I wish to express my sincere gratitude to my family as whole, and specially to my father, the late Mzee Ubwa bin Mussa bin Mansour, and my beloved mother Mrs. Mithle bint Sleiman bin Sleyoum for their efforts to nourish me with admirable upbringing and for their unreserved support, motivation and encouragement in ensuring that I am well equipped to face the challenges of this turbulent World, and to achieve my academic pursuits successfully. I wish also to thank all my lectures in Faculty of Law and Shariah of Zanzibar University for inspiring me to study hard, and for impairing in me knowledge that has enabled me to write this book. Particularly, I am very grateful to Mr. Abdulkadeer Hashim, for his wise guidance that has been very central in initiating, progressing with and completing this work successfully. In addition, I owe special thanks to my relatives and close friends who contributed, in one way or another, in successful accomplishment of this project. The list is too long to mention each and everyone who assisted and encouraged me. However, I am inclined to mention the following for their whole-hearted support: Professor Ibrahim Harouna Lipumba, the National Chairman of The Civic United Front (CUF-Chama cha Wananchi); Professor Haroub Othman and Dr P.J Kabudi both of University of Dar es Salaam, Mr. Prince Bagenda; Mrs. Fatma Magimbi; Honourable Ismael Jussa Ladhu (LLM); Mr. Rajab Baraka; Mr. Ali Saleh of BBC; Mr. Mohd Khamis(LLB); Mr. Salum Hussein Abdullah (BA); Mr. Ameir Muombwa (Director in Chief Minister Office); Mr. Salum Msabah, Alhaj Mohammed Ligora (CCM administrative officer Dar es Salaam Head office); Mr. Ali Mwinyi Msuko (Deputy Director of Publicity CCM-Zanzibar); and last but not the least, Mr. Juma Duni Haji, the Deputy Secretary-General of CUF.
Finally, I am very grateful to all my colleagues with whom I have been together and sharing many ideas during all my stay at the Zanzibar University. To all of them I say: Thank you very much.
While I share all the success in this project with those have been mentioned above, I make it very clear that none of them should be associated with mistakes, errors, and any kind of failure fond in this thesis.
Ali Ubwa Mussa. January 30, 2005
This Dissertation is dedicated to my beloved Father, the late Ubwa bin Mussa bin Mansour and my Mum, Mrs. Mithle bint Sleiman bin Sleyoum, both of whom supported me throughout my cherished childhood.
Forty years ago, the two sovereign states, Tanganyika and Zanzibar, motivated by historical experience of colonialisation geographical proximity, cultural identity, similar political belief and demand for African unity, signed a Treaty to form the United Republic of Tanzania. It has been extolled as the only type that has so far been achieved in realization of the spirit of the Pan-Africanism .1 Tanzanians have prided themselves in having the only Union of Independent states which has been described by many to be unique in Africa; indeed no other states has followed their example. Tanzanians have not been discouraged by the lack of interest on the part of other African states in forging larger political Units in Africa. On the fact they believe that there are lessons to be drawn from the failures of such attempts elsewhere. The Union was realized on 26th April 1964 when two leaders, the late Julius. K. Nyerere, the President of Republic of Tanganyika and the late Abeid .A. Karume, the President of People republic of Zanzibar had approved by signing the Articles of Union. It happened less than four months since the Zanzibar Revolution of 12th January 1964 which overthrew the sultanate in Zanzibar took place. However, from that time onwards cracks have appeared as some people claim that there are number of weaknesses that have surfaced since the beginning. One of the major claims is the increasing number of union matters that has doubled since the signing of the Articles of the Union in April, 1964. Under the 1964’s Articles of Union, matters consented were only eleven (11) but now they are more than twenty-three. In this dissertation we will examine how new Union matters have been added from original ones and the legality of those additional ones. 10
1. Kabudi, P.J The United Republic of Tanzania after a quarter of the Century
HISTORICAL BACK GROUND OF UNION OF TANZANIA The United Republic of Tanzania emerged on 26th April 1964 when the then Zanzibar President the late Abeid Amani Karume and the late Julius K. Nyerere of Tanganyika signed an agreement called the Articles of Union, uniting their respective countries in one sovereign United Republic. This was an International agreement between two sovereign states and therefore it is a treaty under the International law attracting to itself the solemnity that goes with international contracts. It is a Union of two Independent states, Tanganyika and Zanzibar, which respectively became independent on 9th December 1961 and on 12th January 1964. Some scholars believe that the Independence of Zanzibar was founded in December 1963 when democratic election that preceded Zanzibar’s Independence. One month after Zanzibar gamed Independence from the British colonial rule there was a bloody revolution that overthrew the Sultan’s government and ushered in a new Revolutionary government. Three months after the Zanzibar revolution, Zanzibar lost its sovereignty by uniting with the then Republic of Tanganyika.
The marriage of two sovereign republics: the republic of Tanganyika and People’s Republic of Zanzibar formed the United Republic of Tanzania. The ‘marriage vows’ were made on April 22nd, 1964 but the union was formally declared on the April 26, 1964. The union was entered into in haste and little consideration had been given to its constitutional implications. The Union was formed less then four months after the Zanzibar revolution. Behind the union were two eminent figures; the late President J.K. Nyerere of Tanganyika and the 11
late President Karume of Zanzibar. The two architects; President Nyerere, a graduate of Makerere University and Edinburgh University, a former teacher, a distinguished politician with great vision, and a former dock worker with all the wisdom and experience of a seaman. The fact that both countries shared the same historical experience of the colonization, common cultural identity and geographical proximity, along with common object of African unity, motivated the leaders to unite and form a federal entity.
Jussa is of the opinion that: “Nyerere had the intention to unite Tanganyika and Zanzibar for many years back to Independence …………… he dared to sent Ali. M.Tambwe and Bibi Titi Muhammed to assist ASP campaign as to 2 facilitate his ambition…”
However, some recent researchers have shown that the immediate political objectives of the top leaders for the union were different and not even common.3 President Karume was worried about the influential, educated elite within his own party on one hand, and he was faced with a threat of counter-revolution from the ZNP and UMMA parties. President Nyerere felt threatened that his philosophy of African socialism could have been contaminated by the communist doctrine, which was infiltrating the country from Zanzibar. Mr. Karume stated in August 1964: “Tanganyika and Zanzibar union had brought strengthen to the Island and protected them against external enemies which were trying to sabotage the fruits of the Revolution: 4 And Mr. Nyerere, whose comment came before Independence, stated: “If I could tow that Island (Zanzibar) out in the middle of the Indian Ocean, I‘d do it ….it is very vulnerable to outside influence. I fear it will be a big headache to me” 5 In 1970 he stated in the National Assembly:
“… the Act of the Union between Tanganyika and Zanzibar in 1964 was an emergency Act; we hastened to unite because we recognized that only speedy initiative could achieve unity.” 6
2. An interview with Ismael Jussa Ladhu, a Deputy Director of Foreign Affairs and Human Rights- CUF 3. Prof. B.P Srivasta, the constitution of United Republic of Tanzania
some salient features- some riddles pg 11
4. Prof. B.P Srivasta Ibid. 5. The standard, Dar es Salaam, dated 19th August 1964) 6. Ibid. Oscar Kambona, the then Nyerere’s Foreign Minister, added strength to the arguments when he said that: “Our first concern was the growing communist presence, and second, the danger of the Cold War in…the problem was how to isolated Zanzibar from Eastern countries, yet not to be used by the West for its purpose “. 7 It is submitted that the interest of super powers during the Cold War era could have had an effect on the making of the Union. The American influence was noticeable prior to Independence when the American built a satellite ground station in Zanzibar. Bagenda has this opinion: “…a union did not unite the people of Tanzania but merely government and its leaders ………… this occurred as there was no forum to get people opinions …….”8 However, shortly after the revolution the links were severe because of the influence of the Eastern block countries including China and East Germany who played a supporting role to the regime. It was an alarming signal; it was a threat to the West who were not ready to see another Cuban in the East Africa. Declassified US President Johnson’s state papers revealed that the imperialist powers led by the USA feared Zanzibar’s relations with communist camp. Franc Carlucci, the CIA connecting Zanzibar and USA charge d’affaires, who admitted to having succeeded in persuading the late Sheikh Thabit Kombo Jecha, a leading Karume ally, that these revolutionaries were bad and had to be demolished. Kombo gave his assurance that they
would be taken care of step by step. The USA favored the union of Tanganyika and Zanzibar as a strategy of containing the militant Zanzibar Ali has this to say on foundation of Tanzanian Union: “…many people think that our union came as a result of Cold war and internal forces added by the external forces….” 9
7. J.P kabudi Ibid pg 314 8. Interview with Bagenda 9. Interview with Ali Saleh , BBC reporter in Zanzibar. It could be concluded that the architects of the union had different motives. As one of the union architects professor Srivastava puts it: “…..in bringing about the union there was only a meeting of mind at top level." 10
There has been no meeting of the heart either at the top or at the mass level. As a consequence, although the union came into existence, those elements of mutual trust so essential for its perseverance has been missing. Zanzibar being small in size was more apprehensive of dominance and even ultimately annexation by the Tanganyika .To dispel this fear the Articles of Union contained guarantees for a separate identity of Zanzibar and its internal autonomy. Such guarantees were incorporated in 1965 and in 1977 Constitutions. Actually, for some extent both countries differ to each other.
Zanzibar which is located on the East African coast is 32 nautical miles from Dar–es– Salaam. It was a stepping-stone to the east, central and Southern part of Africa. Zanzibar 14
is comprised by two big islands i.e. Unguja and Pemba and other small islands. It has long history as people met from the orient; the Gulf Persian and the Far East met when Zanzibar became of commercial center11 .The Indigenous people of Zanzibar are Watumbatu, Wahadimu and Wapemba. Portugal is the first colonial power to invade Zanzibar in 1650. The Portuguese were succeeded by the Busaidy dynasty which in 1832 Sultan Sayyid Said bin Sultan moved his Capital from Muscat (Oman) to Zanzibar. By that time Zanzibar was under dual rule where The United Kingdom was the ultimate colonial power12
10. Prof. B.P Srivasta Ibid. 11. Sheriff; historical Zanzibar, publication 1st 1995) 12. Sheriff and Ferguson 1991 During British Rule in Zanzibar, the Zanzibaris were divided into racial/ethnic groups. This was in line with colonial policy of divide and rule. On late 1920’s up to early 1950’s there spring up racially based association such as the African Association, the Shiraz Association, the Arab Association and the Comedian Association. These associations were Basically formed for communal purposes. These associations were in the second half of 1950’s were succeeded by Political Parties such as the Zanzibar Nationalist Party (ZNP), the Afro-Shirazi party (ASP) which in 1959 split and the splinter group formed the Zanzibar and Pemba People’s Party (ZPPP). On its part the ZNP also split later on and the splinter group formed the Umma party (UP). The Zanzibar Sultan’s domination extended from Kismayu in the North to Sofala in the South and from the Indian Ocean in the East to Congo in the West, However in 1884 there was partition of Africa that deprived the Sultan of much of his former dominion and was left only with the Zanzibar islands and the ten-miles coastal strip in Kenya. In 1890 Zanzibar became a British Protectorate. The ZNP was mainly supported by the Arabs and Africans of Zanzibar origin. Z.N.P. did not go unchallenged as the A.S.P was also founded, which was a merger of African Association whose supporters were mainly Africans of Mainland origin (Tanganyika) and the Shiraz Association comprised mainly of the indigenous Africa population and some major groups .13 The first Election held in 1957. The sufferage was very restricted. To qualify to be a voter one was to be male with age of 25 years and above and had to have property. This 15
election was to elect six members of the Legislative Council (LEGICO) of which ASP won five seats and the remaining seats was taken by the Muslim Association. The second election was held in 1961 where three political parties took part namely; A.S.P, Z.N.P and Z.P.P.P. A.S.P got 10 seats, Z.N.P got 9 and 3 went to Z.P.P.P. In ZPPP there was strife: some wanting to affiliate with ZNP while others wanted to support ASP. Finally two of those elected from ZPPP formed hands with ZNP and one with ASP. This resulted in a situation which made Z.N.P and A.S.P to have equal number of seats and as the result neither of them had majority to form government alone. Thus election indicated that Zanzibar was marching towards independence with major racial divisions, which did not augur well for the future.5 Major constitutional conference to discuss the Zanzibar Independent were held at Lancaster House in London and the election were fixed for July 1963.
13. Miskry ‘s(LLM) Dissertation on Union of Tanzania pg 14 After the July 1963 election, the Legislature was expanded and 8 more seats were to be contested. The coalition of Z.N.P and Z.P.P.P got 18 seats while A.S.P got 13 seats. So Z.N.P and Z.P.P.P formed the internal self-government in July 1963.14 The second Lancaster House conference was held in September 1963 to deal with the Independence Constitution. The outcome was that the Sultan should continue to hold his position as Constitutional head of the state, and be able to nominate his successor, and must always follow his Minister’s advice. It was further agreed that the National Assembly could effect Constitutional amendment by simple majority, except for the provision dealing with fundamental rights and rights of minority. The Conference further agreed on December 10, 1963 as the date of Independence. Zanzibar achieved its Independence on December 10, 1963 and that marked the end of British Rule in Zanzibar. The Independence Constitution was modelled on the Westminster Model with the Sultan as a ceremonial Head of State and the Prime Minister as the Head of Government. The Constitution vested the legislative power in the Sultan and a National Assembly of elected members. Constitutional retained an Independent Judiciary. The Independence Constitution entrenched and guaranteed the fundamental rights and freedom as stipulated in the Bill of Rights.15 The newly Independence Government was under the Hon Mohammed Shamte as the Prime Minister. The December 10 Independence was a victory for all Zanzibaris. Some Observers noted that it was a moment of great rejoicing for some of the Zanzibaris especially the ZNP/ZPPP followers. Followers of ASP did not rejoice. They felt that that was not real Independence as the Sultan who was of Arab origin still was the Head of state. 16
Sheikh Thabit Kombo bears witness to this by asserting that at the Independence Day, while some people were celebrating, members of ASP their hearts were not happy. They apparently participated as a disguise so that those supporters of ZNP/ZPPP should not recognized their bitterness16. However, the newly Independence government did not live long. Hardly one month after Independence a bloody revolution took place in Zanzibar. The fury of the Revolution was directed against racial minorities in the country at the time, namely, the Arabs and Asians. They were exposed to such things as
14. Miskry (LLM) Ibid 15. Article ll of the Independence Constitution Sect 3-15. 16. Dira dated 27 – 4 Nov 2003.
looting, killing, some were detained without trial, some disappeared, and some were forced into marital arrangements that could be described as forced. There was no freedom of speech and association, the Constitution was scrapped off and Zanzibar was ruled by Decree. The Revolution was spearheaded by ASP and received full backing of UMMA PARTY. However, the real masterminds of the Revolution and those who actually overthrew the government is still a mystery. Dr Mohammed Bakar quoted Sheikh Thabit Kombo maintaining that the Revolution took place due to the exploitation and suppression of Africans by the Arabs that had existed for long. He also argues that the Sultan and British government supported strongly ZNP and deprived Africans of a say in the affairs of the government. 17 He further contends that ASP was deprived of the right to govern after the 1957 election after it emerged as a winner. In short Thabit Kombo is of the view that the Revolution was due to the British and Sultan’s support to ZNP. January 12, 1964, the ASP led by the late Karume with the help of the Marxist oriented UMMA party led by the late Abdulrahman Babu, waged a successful Revolution. The Revolution replaces the old legal order and established new legal order. Msuko 11 has this to say: “1964 Revolution occurred due to ideological differences, while rulers (ZNP) considered only British were foreigners, ASP thought that both Asians and British were foreigners… just Arabs (ZNP) succeeded British in 1963….” 17
He added that: “…here is a cause of big different, whoever recognizes the 1963 Independence is still of sultan mentality and is ignorant…” After the 1964 Revolution, the Revolutionary government took various measures to consolidate power. The Independence Constitution was scrapped off, all political parties were banned and the ASP became the only political party in Zanzibar under monoparty system.
17. Interview with Dr. Mohammed Bakary , Lecturer University of Dar es Salaam. 18. Interview with Ali M. Msuko, Deputy Secretary of Publicity - CCM Zanzibar. In the 1979, a new Constitution was enacted. This Constitution brought about the separation of power and aimed at having an Independent Judiciary, Legislature. The House of Representative established for the first time after the revolution and the executive. However the composition of, the House of Representatives did not reflect the letter and the spirit of an Independence Legislative. For the members of the House were not elected in a free and fair election. The House was comprised of 109 members; of whom only 10 were elected19. The others were appointees and nominees of the ruling CCM and official who were ex-officio members. Another important change introduced by the 1979 constitution was the election of the president of Zanzibar by popular vote20. Before this major change, the Chairman of Revolutionary council was automatically the President of Revolutionary government. But Duni is of different opinion on Succession of Revolutionary governments. He says: “The mere cause of 1964 revolution was to bring changes in Zanzibar a thing which was never implemented for all the 40 years under the CCM…”21 On 1984, the1979 Constitution was replaced by a new Constitution: The 1984 Constitution. This was modeled on the Commonwealth tradition. The Bill of Rights was again entrenched on the Constitution. Under this Constitution the majority of the members of House of Representatives were to be elected from constituencies. It also established that the President of Zanzibar could serve only for two terms.
In July 1, 1992 when Tanzania re-introduced political pluralism, in Zanzibar the strongest parties are Ruling Chama Cha Mapinduzi (CCM) and Opposition the Civic United Front (CUF). Since 1992, we have witnessed two multipart elections both of which were. The ruling CCM was declared the winner but CUF and some domestic and international observers contest the results. Recently on 9th January 2005 for the first time since the creation of the Union, Zanzibar has gone one step forward when it has re-established the national flag. All in all, the peoples Republic of Zanzibar was short lived. Zanzibar surrendered some of its powers to the union government 22 in less than four months after the Revolution when it merged with the Tanganyika.
19. Sect 21 of Zanzibar Constitution, 1979 20. Ibid sect 22 21. Interview with Juma Duni Haji, Deputy General Secretary - CUF Zanzibar. 22. Miskry (LLM) Ibid. pg 23
TANGANYIKA. Tanganyika is the second part of United Republic of Tanzania .She got its independence from the colonial rule on December 9, 1961. The name Tanganyika begun to be known when the European powers divided African after the 1884-1885 Berlin Conference. Before that the area was comprised of different tribal groups and was dominion of the Sultan of Zanzibar. Each tribe had had its own system of leadership and distinct way of living in every aspect as each considered itself as a state with full identity. After the Berlin Conference, Tanganyika became a German Colony until the First World War 1914-1918. The outbreak of First World War (19914- 1918) marked the end of German domination in Tanganyika when it was replaced by United Kingdom under the Trusteeship Council of the League of Nations. The British Rule existed in Tanganyika until 1961 when Independence was granted. During that time political activities initiated as people formulated trade unions to air their grievances. Later on particularly after the Second World War political awareness intensified. Several political parties were formed but TAA, which later transformed itself to TANU, mobilized the masses under the late Julius K. Nyerere who galvanized Tanganyikans to demand independence. Other political parties were U.T.P, A.N.C and AMNUT.
A road for Independence started in December 1958 when the first election for new Legislative Council was held. TANU won all seats .The second election was conducted in February 1959 and again TANU got great victory. There was another election in August 1960 where TANU entered the election with the only opposition from three ANC candidates and a few Independents23 TANU won 70 seats out of 71 seats available. The great victory seized by TANU indicated that Tanganyika was ready for Independence and by 1961 Tanganyika attained full internal self-government and the late Julius. K. Nyerere became the Prime Minister who led the Council of Ministers, which was the collectively accountable to the national Assembly. The new. The Constitution, which conferred full internal-self government came into force on May 1st, 1961 and made provision for Mr. Nyerere as Prime Minister to form a cabinet of Ministers. In his cabinet Nyerere appointed two Europeans and one Asian, all of whom were members of TANU.
Gideon s. were et al, East Africa through a thousand years at p 18
Tanganyika had made amazingly quick progress towards Independence within a few weeks after self – government the National Assembly passed a resolution asking British Colonial power to grant Independence to Tanganyika. It was, indeed the able leadership of Nyerere along with the UNO pressure on the British and the internal support of the people that accelerated Tanganyika’s rapid steps towards independence as Ward and White rightly put it: “Without Dr. Nyerere, Tanganyika would not have made the progress it did. It was his achievement that he brought his party under control, that Europeans and Asians came to give him their confidence and serve under him; and that the British governors (governors, sir Richard Turnbull and sir Edward Twining) and secretaries of state decided that he was a man they could trust and work with….” 24 On December 9, 1961, Tanganyika gained independence as a sovereign nation in the Commonwealth. Tanganyika’s first constitution, the Independence Constitution, marked the end of British rule .The Constitution was largely modeled on the Westminster style of the Constitutional system, which maintains the Queen represented by the governor, as the head of state and the Prime Minister as head of Government.
It is worth noting that the Independence Constitution of Tanganyika, which ended the British rule and handed power to the “new rulers” did not contain an entrenchment section of guaranteed fundamental rights and freedom .As professor Peter puts it: “On Mainland (Tanganyika) … there was an open struggle between the people on one hand and the “new rulers” on the other. While the people attempted to consolidate their Independence from the colonial rule, this was frustrated quite early by their very leaders. Guarantees of Fundamental rights and freedom in a form of a Bill of rights were rejected by the incoming government right at Independence.” 25 The nationalists led by the TANU refused the entrenchment of a Bill of Rights in the Independence Constitution on two grounds: first, the inclusion of a Bill of Rights would hinder the government’s endeavours towards speedy development;
24. W.E.F. Ward et al, E.A a century of change 1870-1970 at p. 232 25. Chris p. Maine, National Institution for protection and Promotion of Human Rights pg 3 and second, the Bill of Rights would be used by Judiciary, which at the time was mainly composed of the whites, to frustrate government policies and declare the unconstitutional. It was in this context that (the then) Prime Minister Rashid M. Kawawa termed the Bill of Rights as a luxury, which merely invites conflicts. The TANU ‘s argument sailed through and thus made Tanganyika the exception to the general rule - attaining Independence with a written Constitution, but without a Constitutional guarantee of fundamental rights and freedoms, thus exposing the citizens to the mercy of the ruling party and the government. One year after Independence, the political leadership of the country decided to have an autonomously Republican Constitution with an Executive president. Accordingly, on December 9, 1962, the Independence Constitutional was replaced by the Republic Constitution, which declared Tanganyika as a sovereign republic. The Queen seized to be Constitutional Head of state. In less than a month after the adoption of the Republic Executive Constitution, President Nyerere declared publicly, through the National Executive Committee (NEC) of TANU, that Tanganyika should be a one party state .One year later a Presidential Commission was set up, charged with the responsibility of considering changes in the Constitution of Tanganyika, the Constitution of TANU and the practices of government that would be necessary to bring into effect a democratic one party state in Tanganyika .
WHY THE UNION? At least four important factors contributed to the formation of the Tanganyika and Zanzibar. One, it is believed that there were extensive historical ties between Tanganyika and Zanzibar in a wide range of respects including blood ties, trade, culture, common language and close political co-operation particularly between ASP and TANU. Ligora 19 is of the opinion that: “… because of History and for their future life Tanganyika and Zanzibar along side with their citizens decided to merge as a United Republic as to bring development………..”
19. Alhajj Captain Mohammed Ligora – Administrative Officer CCM Main Office Dar es Salaam
Muombwa 20 has this to say: “…Tanganyika and Zanzibar was a one country for many years during the Sultan is reign, it was just a historical accident which divided them into two …… that is why once after Independence it was not a big issue to re-unite them…” The second factor was the spirit of Pan – Africanism and particularly starting with East African Federation. Even before Independence, the late Nyerere and other nationalist leaders in their regions had an ambition of Africa Unity. Nyerere himself, unlike Kwame Nkrumah, preferred a gradual approach toward the African unity starting with Regional Federations21
Many efforts had been made to establish East African Federation but the latest discussion between the three heads of East African states proved unfeasible for the establishment of the political Federation. Coming of ASP in power after the 1964‘s Zanzibar Revolution gave relief to Nyerere who insisted on cooperation. But more significantly, the Zanzibar Revolution had created a security perception in Tanganyika political leadership. On the other hand, the united states and the British Intelligence systems also did have some influence .It has to be recapitulated that the Revolutionary government in Zanzibar was not yet secure. The government it self constituted by two salient political factions, the ASP led by late Karume and radical leftists elements of UMMA PARTY led by the late Abrahman Babu assisted by Ali Mahfoudh, Salim Rashid , and Badawi Qulattein. This created a fear that the radical leftist group could attempt to out maneuver the Karume faction and place the country under the hegemony of the communist block.
In connection to that, Professor Haroub Othman is of the idea that: “...the union did not intend to swallow Zanzibar but intended to stop Zanzibar to have international relation ………” 22
Mohammed Ameir Muombwa is Director of union matters under Zanzibar Chief Minister Office 21. Dr. Mohd Bakar; The Union between Tanganyika and Zanzibar revised pg 133 22. Prof. Haroub Othman, TANZANIA:Democracy in transition .
As it was not enough, there was the fear that forces of the deposed government could attempt to re-organize themselves within the country and with external assistance particularly from the Arab countries to stage a counter coup. When the Cold war was at its peak, the Western Interests did not spare their efforts to encourage Nyerere to unite with Zanzibar as the most appropriate way (following the failure of East African Federation) to contain Zanzibar and protect the Revolutionary regime and the Karume faction in particular and prevent it from drifting to either radical leftist direction or towards the Arab Islamic influence particularly from Gamal Abdel Nasser’s Egypt which had had close ties with the deposed government . In addition to that, Karume faction was afraid of a counter – coup by the forces of the deposited regime, Karume was also apprehensive of his own colleagues within the revolutionary government, the leftist element as well as the intellectual elements22. 23
Although a number of factors have been spelled out as the reason behind the Tanzania Union; it should be underlined that the most prominent factors was a perception of fear which generated security and strategic interest. This was certainly shared by all the three important actors, (namely; Zanzibar revolutionary government (Karume faction), the Tanganyika political leadership and the Western Imperial power, particularly the United States and Britain)
MERITS OF THE UNION: For the period of 40 years, Tanzanians have experienced many advantages due to the existence of Union. Some of the important merits are: One, Tanzania has become an proverbial island of peace in the turbulent the Great lake Region. The Union has contributed immensely to the stability of Zanzibar where political rivalry is very intense.
23. Ismael Jussa is CUF Deputy Secretary – Foreign Affairs and Human (Interview)
Secondly, Union has enabled Tanzanian to cement the social and cultural relation, which existed for many years even before the Union. The interaction between the people of Tanganyika and the people of Zanzibar has intensified as a result of inter-marriages and exchange of regular visits between the two peoples
Mr. Jabu . O. Shaibu says: “I always feel prestigious to travel almost in all Mainland regions without any inconvenience …”23 Juma Muhammed is of this view:
“ Politically, union has to large extent united both countries on running the government. Many Zanzibaris are working and get high political and administrative post on the other side of the Republic ……” 24 In addition to that, it has been argued by some quorten that the economy of Zanzibar cannot stand on its own. For instance the clove industry is collapsing and despite the fact that tourism generates considerable revenue, the Zanzibaris are employed in the lowest cadre jobs, with the most of the benefits going to foreign entities. As far as economy is concerned, trade activities have increased in such a way that many Tanzanians have benefited. Peoples from the Mainland come to buy commodities from Zanzibar and go to sell them in Interior parts of Mainland. Also Zanzibaris bring commodities from the Mainland and sell them in the islands. As a result many Tanzanians have become affluent as a result of trade bonds between the two parties of the Union.
24. Mtanzania News paper, issue no 2916 pg 9 dated 26/04/04 25. Mtanzania Ibid
The most conspicuous achievement of the Union is that, it has easted longer than any other Union of its type in Africa. In spite of many shortcomings the Tanzanian Union is a shining example of the integration of peoples from two different sovereign nations. Probably the biggest merit of the Union, especially for Zanzibaris is that, it has guaranteed the security of both Tanganyika and Zanzibar and diminished the vulnerability of the external threats.
DEMERITS: The first weakness of the Union is conspicuous lack of people’s participation in the decision that led to both peoples lose their sovereignty. Throughout different stages of the Union’s development Zanzibaris nor Tanganyikans are fully consulted id decision that affect their wee-being. It was only leaders who decided. We know that some time a leader may act on behalf of his subjects but to give up sovereignty or to unite Independent states is very sensitive and crucial that it needs the consent of at least the majority of citizens of a country. Second, Tanganyika has withered away since the first day of the Union. This has caused some claims from some Tanganyikans as they feel that they have been treated unfairly
when they witness that Zanzibar still exists. This has led some people to suggest Zanzibar should also cease to exist and to remain with the United Republic of Tanzania only. Third, many Zanzibaris feel that the powers of the Revolutionary government are systematically eroded to the extend that the government now remains only in the name. Mr. Makame25 is of an opinion that: “...the recognized sovereignty of Zanzibar has disappeared since the day first of the union, we just have the so called Zanzibar ….” The decision held by Tanzania Court of Appeal in recent treason case – criminal case no 7 of 2000 is vivid evidence (SMZ vs. Machano Khamis & 18 others (2000) -unreported) as Judges of the Tanzania Court of Appeal in this case explained that the sovereignty of Zanzibar withered once it united with Tanganyika to Form Tanzania. Fourth, the structure of the Union is problematic to most Tanzanians and foreigners. This has been the source of friction. The structure is unique.
26. A Fisherman in Zanzibar (interview).
In addition to that, the major problem, which stands out vividly, is Zanzibaris are apprehension of being swallowed. The fact that the Union government is also the government for Tanganyika is seen as a trick to enhance Tanganyikans sovereignty and their government’s power. Last but not the least is the uncertainty over union matters. This has caused confusion, due to the inconsistency between what is done in practice and the spirit of the Articles of Union.
THE ARTICLES OF UNION The principal instrument which forms the legal base for the union is the Articles of Union between these two independent states. This legal instrument signed by two sovereign states is a treaty under the International law.9 The Vienna convention on law of treaties defines a treaty as an international agreement concluded by two or more states reduced into a written form. Such agreement may be embodied in one or more instruments10. Based on this definition, the Article of union would fall within definition. It is important that for a valid treaty must exhibit the consent of the parties to it. However, under the Vienna convention on Treaty, there is no express provision whether or no consent is a necessary requisite to a treaty. There are, however, provisions, which may be construed to that effect. Article 11 of the Vienna convention provides: “The consent of a state to be bound by the treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.”11 These Articles form the constitution of the Union or what is commonly known as the Grund Norm. This Grund Norm is the supreme law of the United Republic and no other law, even the Constitutions of the United
9. Miskry Ibid pg 29 10. Vienna Convention Treaty. 11. Ibid
Republic of Tanzania or that of Zanzibar can be above it. It is on these grounds that one ventures to say that the Articles of Union are supreme, and no other body, even the Parliament can go outside its limits. In this respect, the Articles may be amended only through a consensus of the two contracting sovereign parties, and no other body may do so, not even the Parliament of United Republic. The former Chief justice of Zanzibar had this to say on the Article of Union: “The Article of the union (as grund norms) should be above the constitution or any other law of the country because this is the basic document creating through a treaty, a United Republic. To the contrary, the Constitution (and other law) of the United Republic are not totally guided by the Article nor (do they) reflects its spirits” 12 In McCormick v. The Lord Advocate13 where it was similarly argued with approval that the Parliament of the United Kingdom could not temper with the provisions of the treaty of Union between England and Scotland since that treaty is supreme over all other bodies. It is true that the Articles were agreed and signed on 22 April 1964 by Presidents Nyerere of Tanganyika and Karume of Zanzibar on behalf of their respective countries. Lord Atkins in A.G for Canada v. A.G. for Ontario14 said inter alia that: “It will be essential to keep in mind the distinction between (1) the formation, and (2) the performance of the obligations constituted by a treaty, using that word as comprising any agreement between two or more sovereign states. Within the British Empire, there is a well established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law requires legislative action….” The Article provides that the Republic of Tanganyika and the People’s Republic of Zanzibar shall be united in one sovereign Republic. 15
12. Hon Ali Haji Pandu 13. Scottish Law Times (1953) 14. (1937) A.C. 342 15. Article I of the Article of Union
It was also agreed that during the interim period, that is the period from the commencement of the union until the union constituent assembly adopts a Union Constitution, (Artil ll) the union shall be governed by the Constitution of Tanganyika (art lll) as the interim Constitution. The interim Constitution, which was to be modified to provide a separate executive and legislative in and for Zanzibar. The executive and legislative programs were to be constituted in accordance with the existing laws of Zanzibar (Art lll(a) ) .The legislature and executive for Zanzibar were vested with exclusive jurisdiction for all non-union matters. Further, the interim constitution had also to provide for the representation of Zanzibar in the Union parliament (art iii (c) ) and establishment of the office of two vice- presidents, one of whom would be the Principal Assistance of the President in Tanganyika and the other would be the head of executive in and for Zanzibar and the Principal Assistant of the President of the United Republic in discharge of his executive function in relation to Zanzibar . (Art lll(b) ) The Articles were flexible to allow modification for other matters desirable to give effect to the United Republic or the treaty. (Art lll (d) ). RATIFICATION OF ARTICLE OF UNION. Under the common law, state’s treaty obligation the state parties are not bound by it unless it is incorporated into municipal law by an Act of Parliament. The Articles of Union the specifically require ratification before they become binding on the parties. The Articles of the union provided for a ratification procedure before they became valid and operational. Article VIII of the Articles of Union provides: “ These Articles shall be subject to the enactment of laws by the Parliament of Tanganyika and by the Revolutionary Council of the Peoples Republic of Zanzibar in conjunction with the cabinet of ministers thereof, ratifying the
same and providing for the Government of United Republic and of Zanzibar in accordance therewith.” The above provision implies that there should have been an enactment by the Parliament of Tanganyika to ratify the Articles and on the same spirit the Revolutionary Government should also enact a Decree to ratify the Articles. The requirement of this provision was not adhered to the Revolutionary Government of Zanzibar. However, it is argued by Prof. Shivji that the Articles of Union could be presumed to have been ratified since a corresponding law was passed by the Revolutionary Council of Zanzibar and translated into Municipal law Hon. Abubakar, the leader of opposition in The House of Representatives of Zanzibar and the former Attorney General of Zanzibar, disagreed with Prof. Shivji on the on ground that the law was not passed by the Revolutionary Council which was at that time a legislature cum a cabinet. In respect to non-existence of the law passed by the Revolutionary Council, Hon. Abubakar had this to say: “I myself have been the Zanzibar Attorney General and Minster responsible for justice between 1984 and 1989. At that time I managed to peruse all the statute books of Zanzibar from 1964 and 1979 when the Revolutionary Council was acting as a legislative Assembly cum the Cabinet. No ratification law or any law to that effect is there. I was not myopic, but even if I was, the first Attorney General of Zanzibar after the Revolution had also testified the same that no law ratifying the Articles of union exists on the Statute Books of Zanzibar.”16 Apart from the above assertion, Hon Abubakar is of the view that due to the doctrine of acquiescence, and that no body has challenged the validity of the Articles of Union, and further that both governments have been discharging their functions as stipulated under their respective Constitutions, peoples of Tanganyika and Zanzibar are satisfied and have agreed the arrangement without protest. To this effect, we are of the view that Hon Abubakar is not disagreeing with Prof. Shivji on the legality of the Union.
Saleh is of the opinion that: “…as to make union legal, there must be ratification on it, a thing which never happened on the side of Zanzibar…”17
The Union: in the union of and Zanzibar Constitutions Ali Saleh Ibid
While there was confirmation on ratification of the Article of the union on the side of Tanganyika as the Tanganyika Parliament passed the union of Tanganyika and Zanzibar Act, 1964 situation in Zanzibar was in doubtful, because there was no record to substantiate its ratification in Zanzibar statutes. The then Zanzibar Attorney General Mr. Wolfgang Dourado publicly claimed that: “No law ratifying the Articles of the union of 1964 exists on the statute books of Zanzibar.” He further added: “………….. The Principal Legal adviser to the Zanzibar government was not consulted ……… Zanzibar therefore did not have legal or constitutional advice from its Principal Legal adviser.” 18 However, it is of common knowledge that Tanganyika had such legal advice from British expatriates, Attorney general, Mr. Ronald Brown and Chief Parliamentary Draftsman Mr. P.R.N Fifoot. On the part of Zanzibar, President Karume was advised by Professor Dan Wadada, a Ugandan lawyer and not by the Zanzibar Attorney General Mr. Justice Dourado. Dourado’s claim was supported by Professor Shivji who conducted a research for any legal notice or statute and perused all copies of the Zanzibar Government Gazette, including the supplement of the two calendar years, 1964 and 1965 in order to unearth any evidence of ratification. He said: “There is no notice whatsoever as regards the enactment of a law ratifying the Articles of Union.”19 The formation of the Union of Tanzania and its ratification was a secret to many Tanzania even those at the realm of the leadership.
18. The consolidation of Zanzibar Union – A basic Re-Appraisal pg 3-4 19. I.G Shijvi – ibid pg But Bagenda has different opinion on the ratification by Tanganyika Parliament. He says: “…it is true that Zanzibar never ratified the Articles, but even Tanganyika Parliament was just a TANU’s rubber stamp…….”20 Mr Aboud Jumbe Mwinyi, the former President of Zanzibar and Vice-President of Tanzania, who at the time of the union was the Minister of State of Zanzibar, came to know of the Union four days before the official signing of the Treaty. He said: “It was morning of April 22, 1964, when Julius K. Nyerere arrived in Zanzibar. This President of Tanganyika came with copy of the treaty proposals prepared in Tanganyika ……. I was not at the State House Zanzibar at the signing…I was in Pemba (that morning) on official duty, and when I came back, for the first time I was informed and had known about that Union. President Karume, what he told me was, Tanganyika and Zanzibar were united that morning and President Nyerere shall be the President of the Union Government and he , shall be the Vice-President and the Union shall be confirmed in Dar-es-Salaam on the April 26 , 1964.”21 This proved that neither the people were informed no consulted on this major policy issue, which involved their lives and the future of their country. Further, it is submitted that the Union was between President Nyerere and President Karume to achieve their political ends. The question remains unanswered as to whether the treaty was ratified or not, and if it was, how was it ratified? Other academics have advanced further argument to prove the ratification of the Articles of the Union. Should Zanzibar have argued that such legislation does not exist on its statute books .The Tanganyika Hansard of 1964, which recorded that the Speaker welcomed president Nyerere and President Karume at 5.08 a.m. On April 27, 1964 when the ceremony of exchanging the instrument of ratification took place in Karimjee Building, the seat of the National Assembly, is proof of ratification.
20. Bagenda Ibid 21. Jumbe Ibid
Another argument advanced is that of ratification of the Article by acquiescence. The normal procedure for enactment of the laws which includes the ratification of the Articles of the union, 1964 was not followed, and that is why the only evidence of ratification is the legal Notice appearing in the Tanganyika Gazette. Professor Haroub Othman , on the other hand , argues on a very flimsy preposition that he was told by Abdulrahman Babu and one Khamis Ameir ( babu and khamis were among the members of the first rev council 1964- 1972) that they (revolutionary Council members ) discussed the union in the cabinet and agreed upon the ratification . Prof Haroub further substantiates his argument in that one Ali Juma Shamhuna (Minister of state in chief Minister Office) , an immature young boy at that time also told him of the same while they were at the YASU club . Professor Haroub maintained the argument at a seminar held at Bwawani Hotel on 6th – 7th April 2002 and further instated that for these reasons the Articles of Union have been ratified. On this particular point, Abubakary Khamis Bakary (opposing) says that: “I do not agree with him in Toto. We cannot in law substantiate our arguments with hearsay or with what the Revolutionary Council Members had said during their deliberation. As Lord Denning had said (l. Denning – in the Discipline of law pg 10) that one cannot look at what the responsible Minister has said in the Parliament or what Hansard has reported. But we have to and must look at what legislation (Act) is talking about. There has to be a law enacted by the Parliament of Tanganyika separately and by the Revolutionary Council separately to ratify the Articles as required under Article viii of the Articles of the Union.”22 Ismael Jussa asserted that: “The ratification instrument purported to have been passed by the Zanzibar Revolutionary Council was only the certified by the then Acting Solicitor General of Tanganyika P.R.N Fit foot that the law for the ratification of the Article of the union was passed by the Revolutionary Council” 23
22. Abubakary Ibid. 23. Ismael
He added that:
One must be refreshed here that all “laws” passed by the Revolutionary Council between 1964 and 1979 ere called “Decrees) and not laws. It is evident that this “law” had been formulated in Tanganyika Official Gazette for the purpose of silencing those who would attempt to show that no ratification was made by the Zanzibar Revolutionary Council, and no more. There is notion that Karume and Nyerere agreed on the general format of the union and left a lawyer to draft the precise agreement. However, it is submitted that, in law the article can be presumed to have been ratified and that they are valid articles of treaty within the meaning of Vienna Convention on the law of treaties. This concludes that the Article of Union presumed to have been ratified on a corresponding statute called the Union of Zanzibar and Tanganyika Law (herein after referred to as the union law) which was made by the Revolutionary Council in accordance with the provisions of the Articles .The union law is in pari material to the Union Act except for the preamble and section 7 and 8(1). These are known as Acts of the Union of Tanganyika and Zanzibar.
MATTERS WITHIN THE ARTICLES OF UNION: The list of union matters had been a source of tag of war and mistrust between the people of Tanganyika and their fellows of Zanzibar. Article IV of the Articles of union had specified the reserved union matters. This Article reads: “There shall be reserved to the parliament and Executive of the United Republic the following matters: (i) (ii) (iii) (iv) (v) (vi) The Constitution and government of the united Republic; External affairs; Defense; Police; Emergency powers; Citizenship;
(vii) (viii) (ix) (x) (xi)
Immigration; External trade and borrowing; The public service of the United Republic; Income tax, corporation tax, customs and excise duties; and Harbors, civil aviation, posts and telegraph.
The Article insists that the Parliament and the executive of the united Republic of Tanzania shall have exclusive authority in such matters for the purpose of the United Republic and respect of all other matters in and for Tanganyika.
ADDITIONAL MATTERS TO THE ARTICLES OF UNION. From the origin number of eleven (11) union matters, now the number has increased to double counted but more in reality. The countable additional matters are: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) Currency, coinage and legal tender (including paper money), banks (including saving banks) and banking; foreign exchange and control; Industrial licensing and statistics; High education; Such matters, other than those listed in the preceding paragraphs as specified in the Annex X to the Treaty of East African Cooperation; Mineral oil resources, including Petroleum, its related hydrocarbons and natural gas; The National Examinations Council of Tanzania; Air transport; Research; Methodology; The Court of Appeal of United Republic; The human rights commission; Political Parties.
The purported expansion of its power amended to usurpation and the undermining the basis of scheme of the union that the expansion has amounted to one partner to dictate the terms to the other expand its own power and eventually destroy the basis of the Union. Professor Shivji is of the view that to temper with those provision is the surest way to destroy the legal foundation of the Union, it is like hammer – blows to deliver at the core of those foundation.
Parliament as a creature of the Articles of the Union cannot enlarge its own jurisdiction while purporting to act under it, which is what it purported to do under these amendments. It has been argued that the constant expansion of the union matters restricted the autonomy of the Zanzibar government. It is surprising to hear from the Zanzibar Chief Minister, Hon. Shamsi V. Nahodha commenting that Zanzibar is not marginalized .24 It has been argued that the constant expansion of the union matters was opposed by Zanzibaris and their government as it erodes autonomy of Zanzibar and interferes with Zanzibar affairs. ADDITIONAL MATTERS FROM 1964 – 1977. As we have seen earlier, the 1964 Article of Union had established on eleven (11) union matters from the day first, but until the creation of the 1977 Tanzanian permanent Constitution, the matters reached seventeen (17) , his meant that six new matters were added within this interval . Those matters added are: (1) Currency, coinage and legal tender (including paper money), banks (including savings bank) and banking foreign exchange and exchange control. Industrial licensing and statistics Higher education Civil aviation, research, meteorology and statistics Mineral and oil resources including petroleum, its relative hydrocarbons and natural gas, and The National Examination Council of Tanzania and all matters connected with the functions of the council. It had happened as the Parliament, acting in its constituent capacity, purported to expand the schedule of the union matters in four different occasions.
(2) (3) (4) (5) (6)
24. The Guardian dated 8th March 2001
In 1965 one item was added through the Interim Constitution of 1964 (act 21, 1964). This was; (i) Currency, coinage and legal tender (including paper money) banks (including saving bank) and banking foreign exchange and exchange control. In 1967 three more items were added (interim const amend- act no 35) on the list of union matters. These were: (ii) Industrial licensing and statistics. (iii) High education, and (iv)Such matters, other than those listed in the preceding paragraph, as are specified in Annex X to the Treaty for the East African Cooperation. In 1968 (interim cons-amend - act no 48) the union Schedule saw another addition: (v) Mineral and oil resources including petrol, its relative hydrocarbons and natural gas. And finally in 1977 when the Interim Constitution was replaced by a permanent Constitution. This item is: (vi) The National Examination Council of Tanzania and all maters connected with the function of the Council.
THE 1977 PERMANENT CONSTITUTION The permanent constitution expressly provides for a separate government of Zanzibar, but does not provide for a separate government of Tanganyika. However, under the Constitution the government of United Republic has exclusive jurisdiction to deal with respect all matters in and for Tanganyika (sect 34(1), (2) and (3) of 1977 const). This dual role of the Union government led to tensions and mistrust .The most areas attributed to these contradictions relate to, inter alia, the formation of the union, the nature and structure of the union, party supremacy, special constitutional Court, the schedule of union matters and other constitutional changes. The list of union matters has been a source of tag o war in so that the Tanzanian Court of Appeal requested the government to look into the constitutions 25. The 1977 permanent constitution also introduced two important institutes
(vii) The Court of Appeal in Tanzania and; (viii) Special Constitutional Court of Tanzania. The Court of Appeal was established on 15th August 1977 by the first amendment of the 1977 Constitution (act no 14 of 1977) Although the Judiciary is not a union matter the constitution made it possible for the legislature of Zanzibar to lay down procedure for Appeals to the Tanzanian Court of Appeal. Another important change brought by the 1977 Constitution affecting the union, was the condition laid down for changing items which are union matters and other important aspects of the constitution which did not exist in the 1965 Constitution, these items were numerated under the third Schedule of 1977 Constitution (sect 52(1) (b) of 77 constitution) and now appear under the second schedule of the same constitution as amended in 1984(sect 95(1) (b) of the 77 constitution) Another significant change which could easily pass unnoticed was in the, third original list. Defense was purportedly amend to read defense and security which was never before a union matter, was never purportedly made one. Legally, these additions and amendments to the list discussed here in needless to repeat it contended that “ are repugnant to section 5 of the fundamental and basic scheme of the union provided in the original agreement. The decline of the former East African Community paved the way of putting more nonunion matters to the 1977 Tanzania constitution. All E.A.C matters were transferred to the union government; after both Tanganyika and Zanzibar had surrender them to the E.A.C. Having this argument, Zanzibar lost its reserves as United Republic inherited both Tanganyika and Zanzibar share through Bank of Tanzania (BOT).
25. The call in cases R.v.Seif Sharif Hamad and the similar call was reiterated by the court of Appeal in treason trial 7/2000 CA (unreported) R. Vs. MACHANO AND 17 OTHERS There is complaint from Zanzibaris that, when the Central Bank of Tanzania was established, using two shares derived from Tanganyika and Zanzibar, however Zanzibar has neither received dividends nor report of utilization of the fund, which were merged into the new BOT. It should be borne in mind that, before the collapse of E.A.C in 1977, Banking was not a Union matter; it was under the East African Board before Independence where all East
African Countries including Zanzibar had their representatives. But later on, in very trick method was added in Union matters in 1965 through the 1965 Interim Constitution.26 The late Tanganyika President, Julius K. Nyerere brought the issue before the Parliament Article 85 of the Interim Constitution for an amendment where sub Article Xll dealing with finance , banking , coins , foreign exchange and exchange control was added to the Article of union. Once the Republic gazette is official announced the amendment, the then Union Finance Minister, Hon Amir H. Jamal wrote to Chairperson of EACB with reference number TYC.46/01 dated 22nd March, 1966 informing that all rights of Zanzibar from that day should be forward to Union Republic government. From that direction the 950,000 (British pound) as dividend of Zanzibar and 668,884 Pounds BOT capital from EACB was taken by Union Republic to establish the Bank of Tanzania .27
Seif has the following to say: “…banking was under the EACB where Zanzibar like other East African countries had it’s ……..technically our fellow Tanganyikans , immediately after the 1964 Union intentionally intend to uproot Zanzibar from the Board even if Bank was not within the items of union matters. However their efforts failed …… they were advised first to add Banking under the union matters. Without delaying, our fellows went on to add the matter without observing the legal principle...” 28 In addition to that, Duni is of the idea that the issue of uprooting Zanzibar from the East African Currency Board (EACB) was not a big deal as a
26. Act no 43 of the 1965 Interim Constitution 27. Duni Ibid. 28. Presidential Campaign speech held Mazson Hotel (2000)
legal department of EACB assisted in this particular issue as it directed Tanganyika the proper method to stop Zanzibar as member of EACB. Report of secretary of EACB says: 39
“Indeed it could be highly embarrassing as a measure likely to give further encouragement to the separatist elements on the island” Another breach of the Articles of union is the addition of 1967 of; (x) Civil aviation, Research, meteorology and statistics. Apart from its existence as illegal item, this item totally come to alter the original means indicated as come to include air transport which was not the mere item and indicate the complication of the Zanzibar economic dimensions. Abubakar is of the opinion that: “…the mere intention to add Air Transport from only Civil aviation was to stop Zanzibar to have its own Airline Cooperation ………”29 Another added item differs to the Articles of Union is International relation and Foreign Affairs. By originally it was only Foreign Affairs. The notion that you cannot differentiate International relation and foreign affairs is of Hypocratic. Taking examples of Germany, Belgium and Scandinavian counties, for the sake of aids you will never pass through Ministry of Foreign Affairs. To have financial aid a confidential aids and loans for Zanzibar it is more preferable to distinguish between the two as to ensure more prosperity without any intervention from Union Government because Zanzibar has its own sovereignty on non-union matters. Abubakary is of the opinion that: “…you will never find International relation and foreign affairs mentioned in Articles of Union as added there technically. This was never discussed and consented; it was just to change the original name of the Ministry to the existing one…”30
29. J.B Loynes letter of 1st, June 1964. 30. Dira News Paper issue no. 16- March
The evidence of it is Zanzibar had had its own department of international relation within Ministry of Finance and later Ministry of Planning.
Union matters have been expanded to include insurance, fishing in economic zone and transportation. The recent discussion in the Zanzibar House of the Representatives, debating the 2001/2002 budgets of Ministry of Trade, Industry and Tourism reflects the impact of the expansion of the union matters. Members of the House criticized the Orders issued by the union Minister of Trade32 which regulates the importation of sugar to Zanzibar .The Orders were unconstitutional as trade was not a union matter. Ambassador Hassan Diria (MP) puts it: “ According to the Constitution of the United Republic of Tanzania, matters concerning trade do not fall under the union government ……matters concerning union must be decided according to the Constitution, trade is not a Union matter.” 33 The most fatal blow of the Articles of Union was made on 11th constitutional amendment passed by National Assembly in its November1994 session. This amendment openly is contrary to the 1964’s
31. Dira Ibid 32. Dira Ibid 33. The Guardian dated 3rd, July, 2001.
Article of union. Article III (b) of the Union treaty provides: “ The offices of two Vice Presidents one of whom (being a person normally resident in Zanzibar) shall be the Head of the aforesaid executive in and for Zanzibar, and shall be the principal assistant to the President of the United Republic in the discharge of his executive functions in relation to Zanzibar.” The above provision ensured the President of Zanzibar a permanent place in the Union Government as one of its two Vice Presidents. However the 11th Constitutional Amendment abolished this special status to the President of Zanzibar and currently the President of Zanzibar is treated just like a Cabinet Minister. This is indeed a gross violation of the Articles of Union. This amendment contributed much to tension and contradiction of the union as mistreats the mere intention of the union, which was to link the people of Zanzibar and Tanganyika. As a result, once the Zanzibar President stopped to be Tanzania VicePresident the link between the executive of Tanganyika and Zanzibar is broken, such link
cannot be re-established through the president of Zanzibar being made a member of United Republic cabinet. It should be noticed that the Zanzibar President is the creature of Zanzibar Constitution and not of the Union, so constitutionally speaking he is an outsider to the union executive. For to be a member of union cabinet by virtue of his presidency of Zanzibar is incongruous. Joseph Mihangwa has this to speculate: “…even if this amendment had been of legal principles, it had to be ratified by Tanzania and Zanzibar Parliaments along side with their Cabinets thing which had never happened..” 34 Mihangwa further comments that: “… CUF strength in Zanzibar is a reason behind the amendment as ruling CCM fears the President of Zanzibar under CUF to be United Republic Vice President… CCM had done it even was opposite to the Constitution as to them politics was an issue then loyalty…”
34. Rai issue no. 530 pg 9.
Another area of possible conflict is the public finance. The Constitution of the United Republic of Tanzania 1977 provides for a Consolidated Fund for the united republic of Tanzania into which all revenues or other moneys for purposes of the government of the united republic are paid. Similarly the Zanzibar Constitution 1984 provides for Consolidated Fund for non-Union matters. There is, however, no provision or any formula for the distribution of the revenue between the Union Government and that of Zanzibar. The matter becomes more complicated where there is no separate Consolidated Fund for Mainland. There is a need for establishment of a separate consolidated fund for Mainland Tanzania and thus enhance the argument of federation of three clear governments, that of the United Republic, and separate and independent government of Tanganyika and Zanzibar. Another conflict is on the status of Zanzibar in International Co operations. In SMZ v. Machano Khamis Ali and 18 others (2000) the Court of appeal ruled that neither Zanzibar nor Tanganyika is a state; and that from 26 April 1964 both parties of the Union
surrendered their sovereignty to the United Republic of Tanzania. Hon Abubakar is of the view that it is very unfortunate to these Justices that they did not consider the origin of the United Republic and factors, which contributed to the Union. Since the Union Constitution has specified for union matters, and that all non-union matters concerning Zanzibar are not within the jurisdiction of Union Government, Zanzibar does not have legal capacity to be a party to any treaty for non-Union matters. For instance, the status of Zanzibar in East Africa Community; who is going to represent Zanzibar for non- Union matters to which Union Government has no jurisdiction to deal with under the Constitution? Recently we have witnessed another issue of Human Right Commission to include in item of union matters replacing the then Human Right commission of Tanganyika collapsed in 2003. In fact all above additional matters with the exclusion of Human rights Commission are legally doubtful as the Zanzibar legislature was not involved in their commencement contrary to Zanzibar constitution.
LEGALITY OF ADDITIONAL MATTERS.
The Articles of Union are generally accepted as the grund norm of the Union, and yet it does not itself provide for a mechanism of amendment. Instead, the mechanism for amendment is provided for under the Union Constitution. Previously, all matters relating to the Union had to be tabled to the House of Representative of Zanzibar.
Article 98 of the Union Constitution provides that for any amendment affecting the Union, two-thirds of each side of the Union members in the Union Parliament should approve it. Unfortunately, some amendments have been effected through manipulation of the laid down procedure. There is added contention over where the issue is placed, whether under List A which requires two-thirds of the House approval or List B which requires a special majority of all members of the House. Hence, there is some validity to the conclusion that some articles were ‘smuggled’ into the Union in order to expand the influence the Mainland exercises over Zanzibar, with the resultant erosion of the latter’s sovereignty. Indeed the then President of Zanzibar, Dr Salmin Amour had ever declared openly that Zanzibar recognises only the original eleven (11) union matters as listed in the Articles of union .1 Again Professor Shivji corroborates Dr Salmin Amours preposition when he says that: “If such additions and amendments of the union matters held to be lawful, Zanzibar’s autonomy would be rendered an empty shell.” 2 Mazrui is of the same opinion on additional matters, he said: “…additional matters added without the consent of Zanzibaris ………even if was added by the Union Parliament but the number of MPs from Zanzibar is small when you compare with that from Mainland…” 3 1. D.r Salmin interview with Daniel Further (1994)
2. Prof Shivji Ibid pg 89 3. Interview with Nassor Mazrui Although the official increase of the articles of Union is from 11 to 23 over the 41 years of its operation, a close reading of the same amounts to over 30 items, because there are some articles which address a number of key issues in a single article. In addition to these formal amendments, some Union issues are expanded through administrative directives. There is also a practice in the drafting of legislation that applies matters to both Tanganyika and the islands, for non-union matters. At the extreme end of the above arguments is the questioning of the very constitutionality of the expansion of the Union matters and the creation of the permanent Union Constitution. In other words, the process which was envisaged at the time of the Union was not followed. The process was in the main a CCM party process, which according to this view, was affected without discussion and subsequent ratification of Zanzibar. Furthermore, although the additions to Union matters were discussed in Dodoma with the participation of representatives from Zanzibar, several reasons were advanced to illuminate the illegality of the amendments. In the first instance, it is contended that the effect of Article 98 is to ensure a veto of Zanzibari opinion on any Union issue, given that Zanzibaris’ constitute less than a ¼ (60/230) of the Dodoma Parliament. Secondly, the Zanzibaris in Dodoma do not represent the interests of Zanzibar as a partner state. Instead, they are there as members of CCM as a party. This is why it is mandatory to have the amendments ratified in the House of Representatives of Zanzibar in order to ensure that the representatives of the people of the islands have a say. On the flip side of the coin, is the argument that the amendments were effected with the connivance of the Zanzibaris in Dodoma, who acquiesced in their promulgation by keeping quiet as they were being passed. Furthermore, it is contended that some amendments were proposed by Zanzibaris themselves. A case in point was the making of internal security a Union issue. Iddi. Pandu 4 is of the opinion that:
4. Zanzibar Attorney General “…additional matters were not added wrongly but correctly as both parties of the union gave their consent… Additional matters are going simultaneously with the global changes…” 5 In summation, it is asserted that the non-observance of the procedures of the Union matters warrants a review of the whole process represented in the United Nations.” The Articles of Union explicitly provide that Zanzibar was sovereign state and it had united with Tanganyika to form Tanzania. However, the preamble to the Union Constitution is silent on this matter and merely recognizes Zanzibar as part of Tanzania, without explicitly providing whether or not it is a state. Zanzibaris have been persistent and consistent on the issue of their sovereignty. For example, in 1984, former President Jumbe drafted a constitution for Zanzibar, with a national flag and plans for a currency and was allegedly forced to resign on that account. Even when Seif Shariff Hamad became Chief Minister of Zanzibar, he maintained the same position as Jumbe. Immediate past President Dr. Salmin Amour insisted on being sworn in by the Chief Justice of Tanzania and not by the President of Tanzania, upon being appointed into the Union Government as required by the 11th Amendment of the 1994 to the Union Constitution, because he did not consider himself subordinate to him and argued that Zanzibar was a sovereign state. The issue of Zanzibar’s sovereignty Vis á Vis the Union was addressed by both the Nyalali Commission and Kisanga Committee. However, the recommendations of both Commissions on this issue were never implemented, and thus remain unresolved. There are several dimensions to this issue, which point to the need for its comprehensive resolution, extending from the socio-economic to the cultural and the legal. For example, in the case of Machano Khamis v. Republic (2000) 6, the Court of Appeal ruled that Zanzibar was not a state recognized under international law. As such, a person could not commit treason against the Zanzibari government.
5. Dira no.15 /03 pg 11 6. Ibid.
While the effect of the judgment for the individual accused persons may have been positive, its implications for Zanzibar are indeed profound, and go to the core of the issues of sovereignty and autonomy that the Mission found to be of such great concern to the people of the islands.
COMPLAINTS MADE AGAINST THE UNION. Despite 41 years existence the union of the Tanzania there have been claims in various aspects both in Zanzibar and Tanganyika (Mainland). Some of the common claims are: One, Nature of the union. The intention and the current form of the Union are always questioned. Some contended that union intended to be unitary and other contended of federal arrangement. It was hoped that time would demonstrate the usefulness of the Union and propel the peoples of the two countries to endorse it.
According to this line of argument, a Constitutional Commission charged with the task of a permanent Constitution for the Union was to be subsequently established. Unfortunately, to date both the form and the substantive content of the Union remain issues of considerable contention and dissatisfaction. While it might have been agreed that a Constitutional Commission should be established within a year to discuss the form of the Union, the establishment of such a Commission was postponed on an annual basis and later indefinitely. These have brought many disputes and mistrust to both Zanzibaris and Tanganyikans as each blames other to be a source of the problem. While Zanzibaris do not support the idea of unitary government as they think that this created for them a local and subordinate government to Tanganyika without any autonomy of its own, Tanganyika’s claim that Union government is of biased against to them, and even, through some of their MPs reclaimed to have government of Tanganyika with it full authority. However, the motion which passed by the Union parliament was pushed aside under the pretext that this was contrary to ruling CCM policy. While the ideals of the Union are not in dispute, there are different preferences for the form that the relationship should assume. There are those who argue that the current twogovernment system should be retained. On the other extreme, some have argued that in fact only a single (fully unified) government is appropriate. A considerable body of opinion has made the point that the Union should comprise three governments. Second, the concept of party supremacy is another area of the controversy. Article 3 of 1977 Tanzanian Constitution declares that, Tanzania is a one party state and that the party shall have the final authority in all matters. The Article gives the part a monopoly of
politics by granting the supremacy over the organs of the government. This is a breach of fundamental provision of the Article of union.
It should borne in mind that while the Tanganyika and Zanzibar united CCM or even TANU and ASP was not a party to the union treaty , and it is never mentioned in any of the articles, in which ground the ruling has become a solely authoritative body beside the union. Prof Haroub Othman has an idea that: “…the reason made Zanzibar to fail on decision making to its power originated from the idea of uniting TANU and ASP. Before the union Zanzibar enjoyed its autonomy for non-union matters as ASP was a solely party in Zanzibar. Hence, as known Zanzibar and Tanganyika are governed by CCM all matters must be decided thereto where there is no equal number of representatives. Due to this reality many decision may be passed without Zanzibaris consent.” 7 Again, the party supremacy had an adverse effect on the leadership as they become answerable to the party rather than the electorate. But Mihangwa is of the idea that: “The intention of Mwalimu (Nyerere) to unite TANU and ASP was to erode the Revolutionary Council authority which seems to be more powerful in Zanzibar….” 8 He added: “…After few years later many (Zanzibaris) recognised that it was a mistake to unite ASP with TANU ……”
Third, public finance is another area of controversy. The constitution provides for a consolidated fund for the United Republic into which all
7. Mwananchi issued 12 /01/05 8. Joseph Mihangwa , Rai issue no,581 pg 15
revenues or other moneys for the purpose of the government of United Republic are paid. Similarly the Zanzibar constitution provides for consolidated fund for non-union matters.9 There is, however, no provision or any formula for the distribution of the revenue between the union government and that of Zanzibar .The matters became more complicated where there is no separate consolidated fund for Mainland. There is need for establishment of a separate consolidated fund for Mainland and thus enhance the argument of federation of three clear governments, that of the united Republic, and separate and autonomously government of Tanganyika and Zanzibar. In addition to that the 1977 Tanzanian constitution also established a Joint Finance Commission consisting of not more than seven (7) members who are appointed by the President. Here there is no guarantee that the composition shall be of equal members from both sides of the union. This general power of appointment given to the Union President to appoint members in union institutions has been questioned by the Zanzibaris over so many issues. In order to remove these anomalies, it is suggested that provisions for allocation and distribution of revenue between the government of United Republic, the government of Zanzibar and that of Mainland Tanzania should be entrenched in both Constitution; that of United republic and that of Zanzibar.
Fourth, much of the contention over the Union relates to issues of resources and their distribution between the two entities. In the first instance, many a Zanzibari argue that it should have 4.5% of total revenue collected for Tanzania. On the other hand, Mainland Tanzania according to the opinion of one Mainlander, views Zanzibar as “a small partner taking a lions share of Aid and Finance amounting to 4.5 %. Zanzibar is the size of Temeke District in Dar-es-Salaam, yet Temeke has a higher population than Zanzibar.” Many of the people interviewed by a researcher argued that Tanganyika and Zanzibar were two different economies. However, harbours as one of the major contributors to Zanzibar’s economy falls under the Union. Although Zanzibar is by law a free port, this is not reflected in practice, because of the structure of taxation. The expansion of Civil Aviation to include Air Transport and making Petroleum as Union matter has been met with further suspicion. One respondent queried why natural gas and petroleum should be Union 49
9. Section 123(a) of Zanzibar Constitution, 1984.
matters, while gold and diamonds are not. Inevitably, if oil is discovered off shore in Zanzibar, as some reports seem to indicate, it is likely to complicate the economic dimensions of the Union relationship even further. Hamad put the same quotation as he said: “…. There is a problem to put oil as the union item because many minerals such as gold and diamond in Mainland but they have been union matters…”10 He added: “…even Zanzibar Chief Minister in the House of Representatives proposed two ideas, either oil should remain non-union matter as diamond and gold , and if it is impossible , the second idea is to include those minerals available in Mainland in union items along side Zanzibar oil ……. I advice this issue should be taken care by two governments as to reach the solution…” The Zanzibar Chief Minister, Nahodha, has ever critised the attendance of Union government on the Oil issue. Taking example of North and South Sudan, Angola and Nigeria which had disputes originated from natural resources says: “…Zanzibar will never let this (oil issue) without recognised legal procedures to be taken…” 11
The report of Union problem committee which was issued by the Zanzibar government has this to say:
“….oil is not the only natural resource available in Tanzania, so it should be better if will mention the reason behind taking oil as union matte be explained…” 12
10. Rai issue no. 584, pg 16 11. Dira no 33 pg 1 12. Dira Ibid
A considerable amount of dissatisfaction over economic issues relates to the question of Taxation. The operation of one customs duty regime throughout the Mainland and Zanzibar has resulted in the decreased utilisation of Zanzibar Port thus causing severe financial loss. Hence the queries: How can revenue be a Union matter? Conversely, how can a government operate without revenue? It is felt that the marginalisation of Zanzibar is a deliberate act intended to strangle the economy of Zanzibar, turning it into a mere market for Tanganyika. As such, the trade deficit of 300% between the island and the Mainland is not surprising. Mazrui is of the opinion that Tanzania is one country but Zanzibar does not enjoy fully the rights and privileges as regards business in Mainland. He said he himself was stopped to import cement by Tanzania government but other Tanganyikans from Mainland are allowed to doso. He added:
“Zanzibar has many possible ways to boost her economy but Mainland puts in the realization of this.’’ 13
He advises the Union government to stop intervening Zanzibar in economic is chest for development as U.S.A and China do to Alaska and Hong Kong respectively. On the part of the bureaucracy on the Mainland, it was suspected that Zanzibar was used as a transit point for goods to the Mainland. Furthermore, a view was expressed that some of the materials imported through Zanzibar were not taxed and were therefore cheaper,
which competed unfairly with the Mainland. On the other hand, Zanzibar argues that the material imported through Zanzibar should not be taxed again since it is one country. How ever, Tanganyikans have similar claim to that harbour issue; they claim that Zanzibar has been used as a transit point for goods to Mainland. Further more a view was expressed that some of the materials imported through Zanzibar are not taxed and there fore cheaper which compete unfairly with those imported on the Mainland.
13. Mazrui Ibid
In addition to that the people of mainland Tanzania complain that they meet all cost of the maintaining the union for example Tanzania revenue Authority is funded from the budget of the Mainland and further more it is stated that Zanzibar does not contribute to the Union cost so Zanzibar is exploiting union government. Nyalali commission reports:
“These complaints flow from the failure of Zanzibar government to meet fully its annual obligations for the carrying out of union matters, along with the opportunity of Zanzibaris to work in the government and parastatals of Tanzania Mainland whilst the nationals of the Tanzania mainland have no similar access of working in the government and parastatals of Zanzibar.”14
Forth, high education is another area of controversial. Zanzibaris argue that there is no equal opportunity in joining to Republic Institution. All High learning Institutions and
University have been located on one side of the union and left the other side alone. It is estimated that more than 6000 graduates graduate annually but the number of Zanzibar graduates is less then 50. In fact there is a need to establish some Union Institutes in Zanzibar and to add more Zanzibaris to those institutions. Sixth, Zanzibar complains about political marginalisation, as exemplified by the fact that to date no Zanzibari has ever been appointed Attorney General, Chief Justice, Central Bank Governor or Inspector General of Police in the Union government. This is compounded by the submission that even when appointed, historically, some Zanzibaris have used the union to advance their own personal and party interest. The net effect of the above is growing xenophobia between Zanzibaris and Mainlanders. Even for the positions earmarked for Zanzibar, the Zanzibar government has not submitted names. The Court of Appeal, Deputy Governor of the Central bank is cases in point. Further, Zanzibaris have been appointed in non-union portfolios, such as Tourism, Health and Finance e.t.c
14. Wither the Union of the United Republic of Tanzania pg 23 (1993)
Seventh, there is complaint that Zanzibaris treat Mainlanders like foreigners while the reverse is not true. Similarly, Zanzibaris are said to think that all problems emanate from the Mainland. This viewpoint was exacerbated by a recent spate of prostitution and armed robberies in Zanzibar committed by criminals/gangsters who were allegedly from the Mainland. Equally, there are many stereotypes about Zanzibaris by Mainlanders.
Last but not least it is claimed that state brutality is imported from the Mainland specifically to ‘steal’ elections, rather than maintain law and order, because the police and army are Union matters. Moreover, there is no evidence of consultation with the Zanzibar government before the deployment of the military or other security forces. It is non-deniable fact that expressions of dissatisfaction with the Union come from both sides (Mainlanders and islanders), albeit for different reasons. There is considerable indifference and ignorance of Mainlanders about the isles. To many Mainlanders, Union matters are addressed by the Union government comprised of Tanganyika and Zanzibar. This explains the lack of appreciation of complaints by Zanzibar. As stated by one Mainlander: “We see them passing issues in Parliament and later they complain. We do not hear them saying anything or refusing anything and asking for a debate on this issue.” 15 In addition, it is claimed that Zanzibar is over represented in Dodoma, due to the fact that it has a population of about 1 million people, but has over fifty representatives in the Union parliament. On the other hand, Zanzibar argues that it is a sovereign state and as such is entitled to equal representation, irrespective of population size. Given the above, the Mission found it useful to catalogue the causes for this disgruntlement.
15. A porter in Dar es Salaam Harbour.
RECOMMENDATION AND CONCLUSION.
RECOMMENDATION The union between Tanganyika and Zanzibar is now more than forty (40) years old, but its history has been very bumpy throughout the period under almost every President of Zanzibar. It has led to the forced resignation of one President; dismissal of two chief Ministers and last blow is withdrawal of Zanzibar from OIC in late 1990s. The following are some recommendation that may reduce or eliminate the tug of war between Tanganyika and Zanzibar.
First, as the issue addressed in this particular dissertation is legality of the additional Union matters added after signing of the Articles of Union there is a need to keep a sharp look on it as to avoid more problems in near future. As the Union is deemed to be of mutual agreement there is a need to revisit the Articles of Union and Tanzania constitution as to understand the real position of those additional matters. If there are found to illegal we should remove from the list of Union matters. Duni is of an idea that: “In general we should revisit the Articles of Union and to amend those doubtful additional matters. if our union was really agreed by free consent and mutual agreement why two government are not sitting in a round table meeting to adjust the problems in such away that our neighbouring counties may be motivated to join with ….” 1
As it is not enough as suggested that the union list should be limited or de-unionised and give a breath space to Zanzibar, for instance, external trade and borrowing as are union 55
matters, so automatically Zanzibar cannot preserve its autonomy granted by the constitution, and the treaty, if they remain to be union matters. The researcher suggests that, the constitution should make clear that both Tanganyika and Zanzibar can directly negotiate grants with foreign countries and entities.
1.Duni, Ujumbe Umeeleweka kwamba Tanzania yetu sote , pg 20 Again it is strongly suggested that the partner states be allowed to establish states Banks and be allowed to enter into bilateral and multilateral arrangements and take part in the field of International co-operation, while the union government should be limited to defence, citizenship and currency. Second, there should be referendum as to give an opportunity to discuss the real form of the union needed by Tanganians tendency to leave every thing about union to ruling CCM definitely is not a solution. Tanzanians should be given a forum to discuss what kind of union they prefer. Dr Bakari has the following questions: “Sensitivity is not an objective of union. Virtually every thing is subject to discussion. If it was a sensitive for the past four decades why should it be sensitive today? What is particularly sensitive within the union- are there non –negotiable sacred principles? Is the founding fathers’ creation not subject to discussion? Had Nyerere and Karume before signing the treaty foreseen the problems to be encountered under the union arrangement? Did they suggest solutions to the unanticipated problems…” 2
Prince Bagenda insists on the Referendum as to avoid further tug of war to the people even if our union has existed for many years. He says: “… The soviet Union existed for more than 70 years but it came suddenly to collapse as there was no participation of people during at the beginning..”3 Mayage (independent journalist) is on this particular view: “This is an era of diplomacy, give chance to the majority to opinion and give their which should prevail while safeguarding the interest of minority to consolidate our democracy. An era of ruling by arm has wither away.4
The researcher has learnt from the opinion of the people of both sides, Tanganyika and Zanzibar that they want the union, but they need a Union that is clear- cut.
3. Dr Mohd Bakar – Union between Tanganyika and Zanziba revisited 4. Bagenda Ibid 4. .Mtanzania issue no. 2916 dated 26/4/04
Third, the present structure of the union, which is a fusion of two governments in one with the wider jurisdiction to deal with the union matters and matters related to Tanganyika lead to invisible strong Tanganyika, it is advisable for the centre not to be too strong if the fears of the smaller state of being swallowed up are to be allayed. The making of federal structure more visible will help to address the issues which exist such as contribution and funding of the union, and which no equitable solution has been sought during forty years of the union. At this particular juncture it is advised that even the union legislature to be of two chambers (houses), the upper chamber comprising of equal members from the both partners of the union elected by electorate, and should have the constitutional power to over-ride the lower chamber in matters agreed by the two states and provided in the constitution. The lower chamber should be comprised of elected members presenting the constituencies. On the side of presidency, there should be a rotation of presidency between Zanzibar and Tanganyika after every ten (10) years. The researcher suggests that there is a need to make the federal structure more visible. The three jurisdictions that is union jurisdiction, the jurisdiction of Tanganyika which now under the Union and that of Zanzibar needed to be shown clearly and defined in the constitution in order to dispel fears and complaints concerning the union Ali Saleh 6 is of an opinion that:
“ We should find the best form of the union as the current one is under complaints from both sides of the union, to have one unitary government is totally differ with the article but at least we can have federal form of the union ………”
Quoted late Nyerere , Bakar says that: “In the meantime, the question is not whether to restructure the union or not, but how. In 1993, it was Nyerere charisma that rescinded the parliamentary resolution to form the Tanganyika government. After his death, no other personality is known to have that potential…” 7
5. Mtanzania News paper Ibid 6. Ali Saleh Ibid 7. Mohd Bakar Ibid pg 14
Fourth, as there is a claim that some times the so-called Union Ministries (which in real sense are Tanganyika Ministries such as Ministry of Tourism and Ministry of communication) get aid in the name of Tanzania. So there should be a clear percentage of international aid between government of Tanzania and that of Zanzibar. This occurs due to the fact some times the union government gets aid from abroad in the name of Union Republic but Zanzibar does not benefit or if it benefited it is in a very small amount. In addition to that the percentage of Zanzibar students in Union Universities should be clear is that number of Zanzibar students is becoming smaller while High Education is a Union matter. Again, the Union government should build some universities in Zanzibar because all Union government Universities are in Tanzania Mainland. Sixth, a special constitutional Court of the United Republic should be instituted as to arbitrate any possible conflict between the union government and any state government or among states inter se. There is possibility of Union government and that of Zanzibar to be governed by different political parties having different policies, necessitating the invocation of the jurisdiction of the Court. The jurisdiction should be extended to cover cases of conflict between the partners. The court should be comprised of equal number chaired by a retired Chief justice from any Commonwealth jurisdiction. 58
Seventh, the researcher suggests that the constitution should establish a separate Consolidated Fund for the Union government (and of Tanganyika under Federation) and that of Zanzibar. Any state should allowed to negotiate loans and grants and the Union Consolidated Fund should guarantee these loans. An equitable formula should be devised for the allocation and distribution of revenue and funding of the union budget. Eighth, all matters concerning Ministry of Foreign Affairs and International Relation should be made clear as to avoid further misunderstanding between the two. It is recommended that there should be flexibility on these matters as to enable Zanzibar to be free in finding friends and development partners.
Taking the examples of South Caroline, Muombwa says it independently deals with trade and foreign affairs even though it is under the U.S Federal government, and has boosted its economy and trade in such away Caroline is the third producer of B.M.W cars in the World.8
8. Muombwa Ibid
Last but not least when the union parliament makes any amendment to the union matters should not ignore the Articles of Union. It has been experienced that now is a normal life to disvalue the treaty whenever the constitutional amendments occur. It is important that the treaty obligation arising out of the Articles of Union, 1964 be faithfully discharged. The Articles is a “marriage certificate” between the founders of the union. It is strongly suggested to the partners to sit down, evaluate and assess ‘their marriage’. The union’s 41 years of existence is a short time for a nation, but it is a long time for assessing the strengths and weaknesses, a number of socio-political developments has taken place within Tanzania and in the World in general. For example, the reasons which led to the union which were security consideration so that possible threats of a counter revolution in Zanzibar and threats of Zanzibar being used by the super power are no longer relevant. The researcher suggests that the partners should sit down and formulate an equitable and workable federal structure for the interest of Tanganyika and Zanzibar. The equitable and workable Federal structure suggested in this paper will built trust and confidence among the partners and encourage others to join.
CONCLUSION. Thus the major impediment to the union has been the fact that for a long time it has been a taboo to discuss the issues and any one who dared mention the subject invited the wrath of the state and its ruling party who did not hesitate to label him or her as enemy of the people who want the union to collapse. Honourable Judge Ramadhani says: “We are confronted by two issues; one is the Constitution and the other the Union. Why cannot we sit down and discuss these things? Claims that certain views will be expressed which are not compatible with the party policy are outdated. We are now under the multiparty system. There are basic factors which have to be agreed upon by all stakeholders to ensure that they will be maintained by whoever is in power.” 9
9. Duni, Panel Discussion on Union of Tanganyika and Zanzibar. Abubakar says:
“That the union Agreement had established only 11 items as union matters. Now the list has expanded for the benefit of one side; and sometimes it is added upon without mutual agreement of the shareholders.”10
He claims that the two-tier system has not been sufficiently elaborated. The source of the union he says, are two independent sovereign states which merged on their own volition, so there must be a system of government acceptance by all the people and all political parties so that the agreed formula will be honoured by whichever political party that comes to power at any given time. These matters have to be specified in the constitution.
In order to enhance the credibility of the Union and to avert it being an electoral issue, the constitution must make it clear not only the nature and substance of the union, but also the procedures of its implementation. At the present there are many issues which are non- union matters but they are implemented as if they are. This leads to strong statements from the both sides. There are no establishment procedures for allocating union posts. Indeed no effort has been made to satisfy the demands of both sides. The outcome of all this is that one side feels that it is getting a raw deal. In this situation outcries over union shortcoming will be perpetual. A new Constitution is needed to redress the situation.
Prof Shivji is of an idea that: “ As both the union and democratic question in Tanzania remain unsolved, and the experience of multi-partism rather disappointing, to put it mildly, we need to go back to the drawing board of struggles and solidarity; deepen our commitment to democracy and more immediately reassess the direction in which our politics are moving. Without such conscious efforts we will keep regurgitating old clichés without any resonance.”
If South Africa could sit down at the height of the Apartheid and under CODESA I establish Agenda for discussion and went on to talk for more than two years under CODESA II and they got a new constitution which
10. Abubakar - Is there e need for a new Constitution of United Republic of Tanzania 11. Prof Shivji ibid
led to the current state of political stability undreamt of before. What is needed is good will and particularly for CCM and its government s to accept to sit down with other union’s shareholders on equal status.
Any discussion on the Union must take into account both political and economic aspects. For forty (40) years the arguments put forward have focused on traditional fraternity, but this seems to be like lullaby to mesmerize smaller brother into accepting his exploitation. Unfortunately times have changed and the people have awaked to their rights and are pressing for change. It is a current, which cannot be stopped; it would be wiser to redress the situation.
- The Partner-Ship, Union of Tanganyika and Zanzibar - 30 Turbulent years, Amana Publication Dar es Salaam (1994).
2. Max Mmuya
- Political parties and Democracy in Tanzania, University Press Dar es Salaam, (1994)
3. Mapuri, Omar - ZANZIBAR: The 1964 Revolution and Prospects, Tema Publishers Ltd, Dar es Salaam (1996)
4. Othman, H. & others - TANZANIA: Democracy in transition, University Press Ltd (1990)
5. Mukandara, R. & Othman, H. Liberalisation and Politics – The 1990 election in Tanzania, University Press (1994)
6 Maliyamkono, T.L. The Political plight of Zanzibar, , Tema Publisher ( 2000 )
7. Shivji, J.G, - The legal Foundation of The Union (none) 8. Sharif, Abdul - Slaves, Spice and Ivory in Zanzibar,. (None)
THESES AND PAPERS:
1.Ahmed, M. Miskiry. -
THE UNION OF TANGANYIKA AND ZANZIBAR A MARRIAGE OF CONVENIENCE? (2001)
2. Bakery, A. K. - Post Independence Constitutional Zanzibar. (?)
The Consolidation of the union – A basic re-appraisal.
4. Kabudi, P.J
The United Republic of Tanzania-After a quarter of the century, legal Appraisal of the state of the Union of Tanganyika and Zanzibar. (1993) (DESSERTATION –LLM)
5. Ramadhan, A.S.L - Political Situation of Zanzibar: legal Framework.
6. Dr M. Bakari
- The Union of Tanganyika and Zanzibar Revised, (?)
7. Prof Shivji, I.G
- Toward the new Constitutional order: The state of debate in Tanzania (1996) Presented at University of Dar es Salaam.
8. Fakih, M.
Union legality: Conflicts, its reasons and its causes.(LLB DISSERTATION) ,ZANZIBAR UNIVERSITY , 2004 Sovereignty of Zanzibar under the Union, (?), (2003).
9. Bakar, M.K
10. Duni, J.
Ujumbe umeeleweka kuwa Tanzania ni yetu sote, presented at Dar es Salaam University, 2004.
11. Prof Shivji, I.G Democrecy and the Tanzanian Union (2001) 12. Duni, J. - Need a fresh start, Presented University of Dar es 2004 Salaam,
13. Prof. Othman,H. , Tanzania; The withering away of the Union (1993) 14. Msekwa, P. , The analytical History of the two government structure of the United Republic of Tanzania (1994)
15. Abubakar,K.B : The union: in the union and Zanzibar 1 Constitutions.((2002)
16. Prof. Othman,H : election (1997)
Succession politics and the union Presidential
17. Ali, A: The Union issues and the 2005 general election.
18. Seif, S.Hamad: The Presidential Campaign speech held at Mazsons Hotel (September, 2000)
1. Prof. Haroub Othman .( Lecturer UDSM – History and Politics ) 2. Prof Harouna Lipumba . ( Economist and Politician ) 3. Dr. J.P. Kabudi. (Lecturer UDSM – Advocate)
4. Dr. Mohammed Bakary (Lecturer UDSM – Political Science) 5. Prince Bagenda ( Management and Politician) 6. Hon Juma Duni Haji (Politician) 7. Hon Ismail Jussa Ladhu ( LLM and politician) 8. Hon Ameir Muombwa ( Administrator) 9. Hon Salum Msabah ( Sheikh and Politician ) 10. Hon Alhaji Gora (administrator and Politician) 10. Hon Ali Saleh (BBC Reporter in Zanzibar) 11. Hon Ali Msuko. (Publicity) 12. Hon Nassor Mazrui (Businessman) 13. Mr Makame (fisherman in Zanzibar) 14. Mr Joseph Bugandara (A porter in Dar es Salaam)
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