THE UNION BETWEENTANGANYIKA AND ZANZIBAR
LEGALITY OF ADDITIONAL MATTERS OUTSIDE
THE ARTICLES OF UNION
BY MUSSA, ALI. UBWA
TABLE OF CONTENT
1. List of statutes ……………………................................................................ ii 2. List of the Cases …………………………………………………………….iii3. Abbreviation ……………………………………………………………….. iv4. Acknowledgement …………………………………………………………. 5. Dedication …………………………………………………………………..
1. General Observation …………………………………………………. 12. Historical background of Union…………………………………………...23. Zanzibar ……………………………………………………………….24. Tanganyika ……………………………………………………………55. Why Union? …………………………………………………………...76. Merits of Union ………………………………………………………..97. Demerits of Union……………………………………………………..10
1. The Union …………………………………………………………….162. The Articles of Union ……………………………………………..….183. Ratification of Articles of Union …………………………………..….204. Matters within Articles of Union …………………………………..….245. Additional Matters …………………………………………………….256. Additional matters from 1964 – 1977………………………….………267. The 1977 Permanent Constitution ……………………………..………27
1. Legality of the Additional matters ………………………………………………342. Complaints made towards the 1964 Union…………………………..…………..38
1. Recommendations………………………………………………………………..442. Conclusion ……………………………...……………………………………….473. Bibliography……………………………………………………………………..50
LIST OF STATUTES
1. The Articles of Union, 19652. Union of Tanganyika and Zanzibar Act, 19643. Interim Constitution, 19654. 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 171/20002. Mac Cormick Vs The Lord Advocate (1953) Scottish case.3. A.G for Canada Vs A.G for Ontario (1937)
AMNUT ALL MUSLIMNATIONALISTS UNION OF TANGANYIKA ANC AFRIKANNATIONAL CONGRESSASP AFRO SHIRAZ PARTYBOT BANK OFTANZANIA CCM CHAMA CHAMAPINDUZI CUF THE CIVICUNITED FRONT EAC EAST AFRICANCOMMUNITY
EACB EAST AFRICANCURRENCY BOARD LEGICO LEGISLATIVE COUNCILMPs MEMBER OFPARLIAMENT OIC ORGANISATIONOF ISLAMIC COUNTRIESTAA TANGANYIKA AFRICAN ASSOCIATIONTANU TANGANYIKA AFRICAN NATIONAL UNION UTP UNITEDTANGANYIKA PARTYZNP ZANZIBAR NATIONALPARTYZPPP ZANZIBAR PEMBAPEOPLES PARTY
I do humbly submit my thanks to God the Almighty to bestow on me thesacred knowledge which I subsequently managed to write this dissertation.
I wish to express my sincere gratitude to my family as whole, and speciallyto my father, the late Mzee Ubwa bin Mussa bin Mansour, and my belovedmother Mrs. Mithle bint Sleiman bin Sleyoum for their efforts to nourishme with admirable upbringing and for their unreserved support, motivationand encouragement in ensuring that I am well equipped to face thechallenges of this turbulent World, and to achieve my academic pursuitssuccessfully.
I wish also to thank all my lectures in Faculty of Law and Shariah ofZanzibar University for inspiring me to study hard, and for impairing in meknowledge that has enabled me to write this book.
Particularly, I am very grateful to Mr. Abdulkadeer Hashim, for his wiseguidance that has been very central in initiating, progressing with andcompleting this work successfully.
In addition, I owe special thanks to my relatives and close friends whocontributed, in one way or another, in successful accomplishment of thisproject. The list is too long to mention each and everyone who assisted andencouraged me. However, I am inclined to mention the following for theirwhole-hearted support: Professor Ibrahim Harouna Lipumba, the NationalChairman of The Civic United Front (CUF-Chama cha Wananchi);Professor Haroub Othman and Dr P.J Kabudi both of University of Dar esSalaam, Mr. Prince Bagenda; Mrs. Fatma Magimbi; Honourable IsmaelJussa Ladhu (LLM); Mr. Rajab Baraka; Mr. Ali Saleh of BBC; Mr. MohdKhamis(LLB); Mr. Salum Hussein Abdullah (BA); Mr. Ameir Muombwa(Director in Chief Minister Office); Mr. Salum Msabah, Alhaj MohammedLigora (CCM administrative officer Dar es Salaam Head office); Mr. AliMwinyi Msuko (Deputy Director of Publicity CCM-Zanzibar); and last butnot 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 beentogether and sharing many ideas during all my stay at the ZanzibarUniversity. To all of them I say: Thank you very much.
While I share all the success in this project with those have been mentionedabove, I make it very clear that none of them should be associated withmistakes, 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 lateUbwa bin Mussa bin Mansour and my Mum, Mrs. Mithle bint
Sleiman bin Sleyoum, both of whom supported me throughout mycherished childhood.
Forty years ago, the two sovereign states, Tanganyika and Zanzibar, motivated byhistorical experience of colonialisation geographical proximity, cultural identity, similarpolitical belief and demand for African unity, signed a Treaty to form the UnitedRepublic of Tanzania. It has been extolled as the only type that has so far been achievedin realization of the spirit of the Pan-Africanism .1
Tanzanians have prided themselves in having the only Union of Independent states whichhas been described by many to be unique in Africa; indeed no other states has followedtheir example. Tanzanians have not been discouraged by the lack of interest on the part ofother African states in forging larger political Units in Africa. On the fact they believethat 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 ofPeople republic of Zanzibar had approved by signing the Articles of Union. It happenedless than four months since the Zanzibar Revolution of 12th January 1964 whichoverthrew the sultanate in Zanzibar took place.
However, from that time onwards cracks have appeared as some people claim that thereare number of weaknesses that have surfaced since the beginning. One of the majorclaims is the increasing number of union matters that has doubled since the signing of theArticles of the Union in April, 1964. Under the 1964’s Articles of Union, mattersconsented 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 fromoriginal ones and the legality of those additional ones.
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 ZanzibarPresident the late Abeid Amani Karume and the late Julius K. Nyerere of Tanganyikasigned an agreement called the Articles of Union, uniting their respective countries in onesovereign United Republic.
This was an International agreement between two sovereign states and therefore it is atreaty under the International law attracting to itself the solemnity that goes withinternational contracts.
It is a Union of two Independent states, Tanganyika and Zanzibar, which respectivelybecame independent on 9th December 1961 and on 12th January 1964. Some scholarsbelieve that the Independence of Zanzibar was founded in December 1963 whendemocratic election that preceded Zanzibar’s Independence. One month after Zanzibargamed Independence from the British colonial rule there was a bloody revolution thatoverthrew the Sultan’s government and ushered in a new Revolutionary government.Three months after the Zanzibar revolution, Zanzibar lost its sovereignty by uniting withthe then Republic of Tanganyika.
THE UNIONThe marriage of two sovereign republics: the republic of Tanganyika and People’sRepublic of Zanzibar formed the United Republic of Tanzania. The ‘marriage vows’ weremade on April 22nd, 1964 but the union was formally declared on the April 26, 1964. Theunion was entered into in haste and little consideration had been given to itsconstitutional implications.
The Union was formed less then four months after the Zanzibar revolution. Behind theunion were two eminent figures; the late President J.K. Nyerere of Tanganyika and the
late President Karume of Zanzibar. The two architects; President Nyerere, a graduate ofMakerere University and Edinburgh University, a former teacher, a distinguishedpolitician with great vision, and a former dock worker with all the wisdom andexperience 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 ofAfrican 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 backto Independence …………… he dared to
sent Ali. M.Tambwe and Bibi Titi Muhammed to assist ASP campaign as tofacilitate his ambition…”2
However, some recent researchers have shown that the immediate political objectives ofthe top leaders for the union were different and not even common.3
President Karume was worried about the influential, educated elite within his own partyon one hand, and he was faced with a threat of counter-revolution from the ZNP andUMMA parties.
President Nyerere felt threatened that his philosophy of African socialism could havebeen contaminated by the communist doctrine, which was infiltrating the country fromZanzibar. Mr. Karume stated in August 1964:
“Tanganyika and Zanzibar union had brought strengthen to the Island and protectedthem against external enemies which were trying to sabotage the fruits of the
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 emergencyAct; 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 andHuman Rights- CUF3. Prof. B.P Srivasta, the constitution of United Republic of Tanzaniasome 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 argumentswhen he said that:
“Our first concern was the growing communist presence, and second, the danger ofthe 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 hadan effect on the making of the Union. The American influence was noticeable prior toIndependence 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 theEastern block countries including China and East Germany who played a supporting roleto the regime. It was an alarming signal; it was a threat to the West who were not ready tosee another Cuban in the East Africa.
Declassified US President Johnson’s state papers revealed that the imperialist powers ledby the USA feared Zanzibar’s relations with communist camp. Franc Carlucci, the CIAconnecting Zanzibar and USA charge d’affaires, who admitted to having succeeded inpersuading the late Sheikh Thabit Kombo Jecha, a leading Karume ally, that theserevolutionaries 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 andZanzibar 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 forcesadded by the external forces….” 9
7. J.P kabudi Ibid pg 3148. 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 theunion 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 aconsequence, although the union came into existence, those elements of mutual trust soessential for its perseverance has been missing.
Zanzibar being small in size was more apprehensive of dominance and even ultimatelyannexation by the Tanganyika .To dispel this fear the Articles of Union containedguarantees for a separate identity of Zanzibar and its internal autonomy. Such guaranteeswere 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
is comprised by two big islands i.e. Unguja and Pemba and other small islands. It haslong history as people met from the orient; the Gulf Persian and the Far East met whenZanzibar became of commercial center11 .The Indigenous people of Zanzibar areWatumbatu, Wahadimu and Wapemba.
Portugal is the first colonial power to invade Zanzibar in 1650. The Portuguese weresucceeded by the Busaidy dynasty which in 1832 Sultan Sayyid Said bin Sultan movedhis Capital from Muscat (Oman) to Zanzibar. By that time Zanzibar was under dual rulewhere 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 1991During 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 theAfrican Association, the Shiraz Association, the Arab Association and the ComedianAssociation. These associations were
Basically formed for communal purposes. These associations were in the second half of1950’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 theZanzibar and Pemba People’s Party (ZPPP). On its part the ZNP also split later on andthe splinter group formed the Umma party (UP).
The Zanzibar Sultan’s domination extended from Kismayu in the North to Sofala in theSouth and from the Indian Ocean in the East to Congo in the West, However in 1884there was partition of Africa that deprived the Sultan of much of his former dominion andwas left only with the Zanzibar islands and the ten-miles coastal strip in Kenya. In 1890Zanzibar became a British Protectorate.
The ZNP was mainly supported by the Arabs and Africans of Zanzibar origin. Z.N.P. didnot go unchallenged as the A.S.P was also founded, which was a merger of AfricanAssociation whose supporters were mainly Africans of Mainland origin (Tanganyika) andthe Shiraz Association comprised mainly of the indigenous Africa population and somemajor groups .13
The first Election held in 1957. The sufferage was very restricted. To qualify to be a voterone was to be male with age of 25 years and above and had to have property. This
election was to elect six members of the Legislative Council (LEGICO) of which ASPwon 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. InZPPP there was strife: some wanting to affiliate with ZNP while others wanted to supportASP. 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 seatsand as the result neither of them had majority to form government alone. Thus electionindicated that Zanzibar was marching towards independence with major racial divisions,which did not augur well for the future.5 Major constitutional conference to discuss theZanzibar Independent were held at Lancaster House in London and the election werefixed 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 becontested. The coalition of Z.N.P and Z.P.P.P got 18 seats while A.S.P got 13 seats. SoZ.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 theIndependence Constitution. The outcome was that the Sultan should continue to hold hisposition as Constitutional head of the state, and be able to nominate his successor, andmust always follow his Minister’s advice. It was further agreed that the NationalAssembly could effect Constitutional amendment by simple majority, except for theprovision dealing with fundamental rights and rights of minority. The Conference furtheragreed on December 10, 1963 as the date of Independence.
Zanzibar achieved its Independence on December 10, 1963 and that marked the end ofBritish Rule in Zanzibar. The Independence Constitution was modelled on theWestminster Model with the Sultan as a ceremonial Head of State and the Prime Ministeras the Head of Government. The Constitution vested the legislative power in the Sultanand a National Assembly of elected members. Constitutional retained an IndependentJudiciary.
The Independence Constitution entrenched and guaranteed the fundamental rights andfreedom as stipulated in the Bill of Rights.15 The newly Independence Government wasunder the Hon Mohammed Shamte as the Prime Minister.
The December 10 Independence was a victory for all Zanzibaris. Some Observers notedthat it was a moment of great rejoicing for some of the Zanzibaris especially theZNP/ZPPP followers. Followers of ASP did not rejoice. They felt that that was not realIndependence as the Sultan who was of Arab origin still was the Head of state.
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. Theyapparently participated as a disguise so that those supporters of ZNP/ZPPP should notrecognized their bitterness16. However, the newly Independence government did not livelong. 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 thetime, namely, the Arabs and Asians. They were exposed to such things as
14. Miskry (LLM) Ibid15. 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 wereforced into marital arrangements that could be described as forced. There was no freedomof speech and association, the Constitution was scrapped off and Zanzibar was ruled byDecree.
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 thegovernment is still a mystery.
Dr Mohammed Bakar quoted Sheikh Thabit Kombo maintaining that the Revolutiontook place due to the exploitation and suppression of Africans by the Arabs that hadexisted for long. He also argues that the Sultan and British government supportedstrongly 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 electionafter it emerged as a winner. In short Thabit Kombo is of the view that the Revolutionwas 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 orientedUMMA party led by the late Abdulrahman Babu, waged a successful Revolution. TheRevolution 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….”
He added that:
“…here is a cause of big different, whoever recognizes the 1963 Independence is stillof sultan mentality and is ignorant…”
After the 1964 Revolution, the Revolutionary government took various measures toconsolidate power. The Independence Constitution was scrapped off, all political partieswere banned and the ASP became the only political party in Zanzibar under monopartysystem.
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 theseparation of power and aimed at having an Independent Judiciary, Legislature. TheHouse of Representative established for the first time after the revolution and theexecutive. However the composition of, the House of Representatives did not reflect theletter and the spirit of an Independence Legislative. For the members of the House werenot elected in a free and fair election.
The House was comprised of 109 members; of whom only 10 were elected19. The otherswere appointees and nominees of the ruling CCM and official who were ex-officiomembers.
Another important change introduced by the 1979 constitution was the election of thepresident of Zanzibar by popular vote20. Before this major change, the Chairman ofRevolutionary council was automatically the President of Revolutionary government. ButDuni 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 whichwas never implemented for all the 40 years
under the CCM…”21
On 1984, the1979 Constitution was replaced by a new Constitution: The 1984Constitution. This was modeled on the Commonwealth tradition. The Bill of Rights wasagain entrenched on the Constitution. Under this Constitution the majority of themembers of House of Representatives were to be elected from constituencies. It alsoestablished that the President of Zanzibar could serve only for two terms.
In July 1, 1992 when Tanzania re-introduced political pluralism, in Zanzibar the strongestparties 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. Theruling CCM was declared the winner but CUF and some domestic and internationalobservers contest the results.
Recently on 9th January 2005 for the first time since the creation of the Union, Zanzibarhas 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 someof its powers to the union government 22 in less than four months after the Revolutionwhen it merged with the Tanganyika.
19. Sect 21 of Zanzibar Constitution, 197920. Ibid sect 2221. Interview with Juma Duni Haji, Deputy General Secretary - CUF Zanzibar.22. Miskry (LLM) Ibid. pg 23
Tanganyika is the second part of United Republic of Tanzania .She got its independencefrom the colonial rule on December 9, 1961. The name Tanganyika begun to be knownwhen 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 theSultan of Zanzibar. Each tribe had had its own system of leadership and distinct way ofliving 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 WorldWar 1914-1918. The outbreak of First World War (19914- 1918) marked the end ofGerman domination in Tanganyika when it was replaced by United Kingdom under theTrusteeship Council of the League of Nations. The British Rule existed in Tanganyikauntil 1961 when Independence was granted. During that time political activities initiatedas people formulated trade unions to air their grievances. Later on particularly after theSecond 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 todemand 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 newLegislative Council was held. TANU won all seats .The second election was conducted inFebruary 1959 and again TANU got great victory.
There was another election in August 1960 where TANU entered the election with theonly opposition from three ANC candidates and a few Independents23 TANU won 70seats out of 71 seats available.
The great victory seized by TANU indicated that Tanganyika was ready for Independenceand 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 thecollectively accountable to the national Assembly. The new. The Constitution, whichconferred full internal-self government came into force on May 1st, 1961 and madeprovision for Mr. Nyerere as Prime Minister to form a cabinet of Ministers. In his cabinetNyerere appointed two Europeans and one Asian, all of whom were members of TANU.
23. Gideon s. were et al, East Africa through a thousand years at p 18
Tanganyika had made amazingly quick progress towards Independence within a fewweeks after self – government the National Assembly passed a resolution asking BritishColonial power to grant Independence to Tanganyika.
It was, indeed the able leadership of Nyerere along with the UNO pressure on the Britishand the internal support of the people that accelerated Tanganyika’s rapid steps towardsindependence as Ward and White rightly put it:
“Without Dr. Nyerere, Tanganyika would not have made the progress it did. It was hisachievement 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 theCommonwealth. Tanganyika’s first constitution, the Independence Constitution, markedthe end of British rule .The Constitution was largely modeled on the Westminster style ofthe Constitutional system, which maintains the Queen represented by the governor, as thehead of state and the Prime Minister as head of Government.
It is worth noting that the Independence Constitution of Tanganyika, which ended theBritish rule and handed power to the “new rulers” did not contain an entrenchmentsection of guaranteed fundamental rights and freedom .As professor Peter puts it:
“On Mainland (Tanganyika) … there was an open struggle between the people on onehand 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 veryleaders. 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 theIndependence Constitution on two grounds: first, the inclusion of a Bill of Rights wouldhinder the government’s endeavours towards speedy development;
24. W.E.F. Ward et al, E.A a century of change 1870-1970 at p. 23225. Chris p. Maine, National Institution for protection and Promotion of Human
Rights pg 3and second, the Bill of Rights would be used by Judiciary, which at the time was mainlycomposed 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 ofRights as a luxury, which merely invites conflicts.
The TANU ‘s argument sailed through and thus made Tanganyika the exception to thegeneral rule - attaining Independence with a written Constitution, but without aConstitutional guarantee of fundamental rights and freedoms, thus exposing the citizensto the mercy of the ruling party and the government.
One year after Independence, the political leadership of the country decided to have anautonomously Republican Constitution with an Executive president. Accordingly, onDecember 9, 1962, the Independence Constitutional was replaced by the RepublicConstitution, which declared Tanganyika as a sovereign republic. The Queen seized to beConstitutional Head of state.
In less than a month after the adoption of the Republic Executive Constitution, PresidentNyerere declared publicly, through the National Executive Committee (NEC) of TANU,that Tanganyika should be a one party state .One year later a Presidential Commissionwas set up, charged with the responsibility of considering changes in the Constitution ofTanganyika, the Constitution of TANU and the practices of government that would benecessary 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 andZanzibar.
One, it is believed that there were extensive historical ties between Tanganyika andZanzibar in a wide range of respects including blood ties, trade, culture, commonlanguage 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 withtheir citizens decided to merge as a United Republic as to bring development………..”
19. Alhajj Captain Mohammed Ligora – Administrative Officer CCM Main Office Dares Salaam
Muombwa 20 has this to say:
“…Tanganyika and Zanzibar was a one country for many years during the Sultan isreign, 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 EastAfrican Federation. Even before Independence, the late Nyerere and other nationalistleaders in their regions had an ambition of Africa Unity. Nyerere himself, unlike KwameNkrumah, preferred a gradual approach toward the African unity starting with RegionalFederations21
Many efforts had been made to establish East African Federation but the latest discussionbetween the three heads of East African states proved unfeasible for the establishment ofthe political Federation.
Coming of ASP in power after the 1964‘s Zanzibar Revolution gave relief to Nyererewho insisted on cooperation. But more significantly, the Zanzibar Revolution had createda security perception in Tanganyika political leadership.
On the other hand, the united states and the British Intelligence systems also did havesome influence .It has to be recapitulated that the Revolutionary government in Zanzibarwas 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 thelate 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 theKarume 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 haveinternational relation ………” 22
20. Mohammed Ameir Muombwa is Director of union matters under Zanzibar ChiefMinister Office21. Dr. Mohd Bakar; The Union between Tanganyika and Zanzibar revised pg 13322. Prof. Haroub Othman, TANZANIA:Democracy in transition .
As it was not enough, there was the fear that forces of the deposed government couldattempt to re-organize themselves within the country and with external assistanceparticularly 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 toencourage Nyerere to unite with Zanzibar as the most appropriate way (following thefailure of East African Federation) to contain Zanzibar and protect the Revolutionaryregime and the Karume faction in particular and prevent it from drifting to either radicalleftist direction or towards the Arab Islamic influence particularly from Gamal AbdelNasser’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 thedeposited regime, Karume was also apprehensive of his own colleagues within therevolutionary government, the leftist element as well as the intellectual elements22.
Although a number of factors have been spelled out as the reason behind the TanzaniaUnion; it should be underlined that the most prominent factors was a perception of fearwhich generated security and strategic interest. This was certainly shared by all the threeimportant actors, (namely; Zanzibar revolutionary government (Karume faction), theTanganyika political leadership and the Western Imperial power, particularly the UnitedStates and Britain)
MERITS OF THE UNION:For the period of 40 years, Tanzanians have experienced many advantages due to theexistence of Union. Some of the important merits are:
One, Tanzania has become an proverbial island of peace in the turbulent the Great lakeRegion. The Union has contributed immensely to the stability of Zanzibar where politicalrivalry is very intense.
23. Ismael Jussa is CUF Deputy Secretary – Foreign Affairs and Human Rights(Interview)
Secondly, Union has enabled Tanzanian to cement the social and cultural relation, whichexisted for many years even before the Union. The interaction between the people ofTanganyika and the people of Zanzibar has intensified as a result of inter-marriages andexchange of regular visits between the two peoples
Mr. Jabu . O. Shaibu says:
“I always feel prestigious to travel almost in all Mainland regions without anyinconvenience …”23
Juma Muhammed is of this view:
“ Politically, union has to large extent united both countries on running thegovernment. 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 Zanzibarcannot stand on its own. For instance the clove industry is collapsing and despite the factthat tourism generates considerable revenue, the Zanzibaris are employed in the lowestcadre 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 manyTanzanians have benefited. Peoples from the Mainland come to buy commodities fromZanzibar and go to sell them in Interior parts of Mainland. Also Zanzibaris bringcommodities from the Mainland and sell them in the islands. As a result manyTanzanians have become affluent as a result of trade bonds between the two parties of theUnion.
24. Mtanzania News paper, issue no 2916 pg 9 dated 26/04/0425. Mtanzania Ibid
The most conspicuous achievement of the Union is that, it has easted longer than anyother Union of its type in Africa. In spite of many shortcomings the Tanzanian Union is ashining example of the integration of peoples from two different sovereign nations.
Probably the biggest merit of the Union, especially for Zanzibaris is that, it hasguaranteed the security of both Tanganyika and Zanzibar and diminished thevulnerability of the external threats.
DEMERITS:The first weakness of the Union is conspicuous lack of people’s participation in thedecision that led to both peoples lose their sovereignty. Throughout different stages of theUnion’s development Zanzibaris nor Tanganyikans are fully consulted id decision thataffect their wee-being. It was only leaders who decided. We know that some time a leadermay act on behalf of his subjects but to give up sovereignty or to unite Independent statesis very sensitive and crucial that it needs the consent of at least the majority of citizens ofa country. Second, Tanganyika has withered away since the first day of the Union. This has causedsome 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 Zanzibarshould 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 aresystematically 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 theunion, we just have the so called Zanzibar ….”
The decision held by Tanzania Court of Appeal in recent treason case – criminal case no7 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 thesovereignty of Zanzibar withered once it united with Tanganyika to Form Tanzania.
Fourth, the structure of the Union is problematic to most Tanzanians and foreigners. Thishas 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 areapprehension of being swallowed. The fact that the Union government is also thegovernment for Tanganyika is seen as a trick to enhance Tanganyikans sovereignty andtheir 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 ofUnion.
THE ARTICLES OF UNION The principal instrument which forms the legal base for the union is the Articles ofUnion between these two independent states. This legal instrument signed by twosovereign states is a treaty under the International law.9
The Vienna convention on law of treaties defines a treaty as an international agreementconcluded by two or more states reduced into a written form. Such agreement may beembodied in one or more instruments10. Based on this definition, the Article of unionwould fall within definition. It is important that for a valid treaty must exhibit the consentof the parties to it.
However, under the Vienna convention on Treaty, there is no express provision whetheror no consent is a necessary requisite to a treaty. There are, however, provisions, whichmay 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 theGrund Norm. This Grund Norm is the supreme law of the United Republic and no otherlaw, 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 oneventures to say that the Articles of Union are supreme, and no other body, even theParliament can go outside its limits. In this respect, the Articles may be amended onlythrough a consensus of the two contracting sovereign parties, and no other body may doso, 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 anyother 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 UnitedRepublic 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 thatthe Parliament of the United Kingdom could not temper with the provisions of the treatyof 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 Nyerereof Tanganyika and Karume of Zanzibar on behalf of their respective countries. LordAtkins 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) theperformance 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 awell 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 lawrequires legislative action….”
The Article provides that the Republic of Tanganyika and the People’s Republic ofZanzibar shall be united in one sovereign Republic. 15
12. Hon Ali Haji Pandu13. Scottish Law Times (1953)14. (1937) A.C. 34215. Article I of the Article of Union
It was also agreed that during the interim period, that is the period from thecommencement of the union until the union constituent assembly adopts a UnionConstitution, (Artil ll) the union shall be governed by the Constitution of Tanganyika (artlll) as the interim Constitution. The interim Constitution, which was to be modified toprovide a separate executive and legislative in and for Zanzibar. The executive andlegislative programs were to be constituted in accordance with the existing laws ofZanzibar (Art lll(a) ) .The legislature and executive for Zanzibar were vested withexclusive jurisdiction for all non-union matters.
Further, the interim constitution had also to provide for the representation of Zanzibar inthe 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 theother would be the head of executive in and for Zanzibar and the Principal Assistant ofthe President of the United Republic in discharge of his executive function in relation toZanzibar . (Art lll(b) )
The Articles were flexible to allow modification for other matters desirable to give effectto 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 itunless it is incorporated into municipal law by an Act of Parliament. The Articles ofUnion the specifically require ratification before they become binding on the parties.
The Articles of the union provided for a ratification procedure before they became validand operational.
Article VIII of the Articles of Union provides:
“ These Articles shall be subject to the enactment of laws by the Parliament ofTanganyika 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 inaccordance therewith.”
The above provision implies that there should have been an enactment by the Parliamentof Tanganyika to ratify the Articles and on the same spirit the Revolutionary Governmentshould also enact a Decree to ratify the Articles. The requirement of this provision wasnot adhered to the Revolutionary Government of Zanzibar.
However, it is argued by Prof. Shivji that the Articles of Union could be presumed tohave been ratified since a corresponding law was passed by the Revolutionary Council ofZanzibar and translated into Municipal law
Hon. Abubakar, the leader of opposition in The House of Representatives of Zanzibar andthe former Attorney General of Zanzibar, disagreed with Prof. Shivji on the on groundthat the law was not passed by the Revolutionary Council which was at that time alegislature 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 justicebetween 1984 and 1989. At that time I managed to peruse all the statute books ofZanzibar 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 isthere. I was not myopic, but even if I was, the first Attorney General of Zanzibar afterthe 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 ofacquiescence, and that no body has challenged the validity of the Articles of Union, andfurther that both governments have been discharging their functions as stipulated undertheir respective Constitutions, peoples of Tanganyika and Zanzibar are satisfied and haveagreed the arrangement without protest. To this effect, we are of the view that HonAbubakar 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 neverhappened on the side of Zanzibar…”17
16. The Union: in the union of and Zanzibar Constitutions17. Ali Saleh Ibid
While there was confirmation on ratification of the Article of the union on the side ofTanganyika as the Tanganyika Parliament passed the union of Tanganyika and ZanzibarAct, 1964 situation in Zanzibar was in doubtful, because there was no record tosubstantiate 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 ofZanzibar.”
He further added:
“………….. The Principal Legal adviser to the Zanzibar government was notconsulted ……… 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 Britishexpatriates, 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 DanWadada, a Ugandan lawyer and not by the Zanzibar Attorney General Mr. JusticeDourado.
Dourado’s claim was supported by Professor Shivji who conducted a research for anylegal 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 unearthany evidence of ratification. He said:
“There is no notice whatsoever as regards the enactment of a law ratifying the Articlesof Union.”19
The formation of the Union of Tanzania and its ratification was a secret to manyTanzania even those at the realm of the leadership.
18. The consolidation of Zanzibar Union – A basic Re-Appraisal pg 3-419. 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 Parliamentwas just a TANU’s rubber stamp…….”20
Mr Aboud Jumbe Mwinyi, the former President of Zanzibar and Vice-President ofTanzania, who at the time of the union was the Minister of State of Zanzibar, came toknow 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. ThisPresident 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 inPemba (that morning) on official duty, and when I came back, for the first time I wasinformed and had known about that Union. President Karume, what he told me was,
Tanganyikaand Zanzibar were united that morning and President Nyerere shall be the Presidentof 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 policyissue, which involved their lives and the future of their country. Further, it is submittedthat the Union was between President Nyerere and President Karume to achieve theirpolitical ends.
The question remains unanswered as to whether the treaty was ratified or not, and if itwas, how was it ratified?
Other academics have advanced further argument to prove the ratification of the Articlesof the Union. Should Zanzibar have argued that such legislation does not exist on itsstatute books .The Tanganyika Hansard of 1964, which recorded that the Speakerwelcomed president Nyerere and President Karume at 5.08 a.m. On April 27, 1964 whenthe ceremony of exchanging the instrument of ratification took place in KarimjeeBuilding, 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 theArticles of the union, 1964 was not followed, and that is why the only evidence ofratification is the legal Notice appearing in the Tanganyika Gazette.
Professor Haroub Othman , on the other hand , argues on a very flimsy preposition thathe was told by Abdulrahman Babu and one Khamis Ameir ( babu and khamis wereamong the members of the first rev council 1964- 1972) that they (revolutionary Councilmembers ) discussed the union in the cabinet and agreed upon the ratification . ProfHaroub further substantiates his argument in that one Ali Juma Shamhuna (Minister ofstate in chief Minister Office) , an immature young boy at that time also told him of thesame 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 beenratified.
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 withhearsay 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) istalking about. There has to be a law enacted by the Parliament of Tanganyikaseparately 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 ZanzibarRevolutionary Council was only the certified by the then Acting Solicitor General ofTanganyika 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 Jussa Ibid
He added that:
One must be refreshed here that all “laws” passed by the Revolutionary Council between1964 and 1979 ere called “Decrees) and not laws. It is evident that this “law” had beenformulated in Tanganyika Official Gazette for the purpose of silencing those who wouldattempt 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 andleft a lawyer to draft the precise agreement. However, it is submitted that, in law the article can be presumed to have been ratified andthat they are valid articles of treaty within the meaning of Vienna Convention on the lawof treaties.
This concludes that the Article of Union presumed to have been ratified on acorresponding statute called the Union of Zanzibar and Tanganyika Law (herein afterreferred to as the union law) which was made by the Revolutionary Council inaccordance with the provisions of the Articles .The union law is in pari material to theUnion Act except for the preamble and section 7 and 8(1). These are known as Acts ofthe 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 peopleof Tanganyika and their fellows of Zanzibar.
Article IV of the Articles of union had specified the reserved union matters. This Articlereads:
“There shall be reserved to the parliament and Executive of the United Republic thefollowing matters:
(i) The Constitution and government of the united Republic;(ii) External affairs;(iii) Defense; (iv) Police; (v) Emergency powers;(vi) Citizenship;
(vii) Immigration;(viii) External trade and borrowing;(ix) The public service of the United Republic;(x) Income tax, corporation tax, customs and excise duties; and (xi) Harbors, civil aviation, posts and telegraph.
The Article insists that the Parliament and the executive of the united Republic ofTanzania shall have exclusive authority in such matters for the purpose of the UnitedRepublic 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 todouble counted but more in reality. The countable additional matters are:
(1) Currency, coinage and legal tender (including paper money), banks(including saving banks) and banking; foreign exchange and control;
(2) Industrial licensing and statistics;(3) High education;(4) Such matters, other than those listed in the preceding paragraphs as
specified in the Annex X to the Treaty of East African Cooperation;(5) Mineral oil resources, including Petroleum, its related hydrocarbons
and natural gas;(6) The National Examinations Council of Tanzania;(7) Air transport;(8) Research;(9) Methodology;(10) The Court of Appeal of United Republic; (11) The human rights commission; (12) Political Parties.
The purported expansion of its power amended to usurpation and the undermining thebasis of scheme of the union that the expansion has amounted to one partner to dictate theterms 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 todestroy the legal foundation of the Union, it is like hammer – blows to deliver at the coreof those foundation.
Parliament as a creature of the Articles of the Union cannot enlarge its own jurisdictionwhile purporting to act under it, which is what it purported to do under theseamendments. It has been argued that the constant expansion of the union mattersrestricted the autonomy of the Zanzibar government.
It is surprising to hear from the Zanzibar Chief Minister, Hon. Shamsi V. Nahodhacommenting that Zanzibar is not marginalized .24
It has been argued that the constant expansion of the union matters was opposed byZanzibaris and their government as it erodes autonomy of Zanzibar and interferes withZanzibar affairs.
ADDITIONAL MATTERS FROM 1964 – 1977.
As we have seen earlier, the 1964 Article of Union had established on eleven (11) unionmatters from the day first, but until the creation of the 1977 Tanzanian permanentConstitution, the matters reached seventeen (17) , his meant that six new matters wereadded 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 exchangecontrol.
(2) Industrial licensing and statistics (3) Higher education (4) Civil aviation, research, meteorology and statistics(5) Mineral and oil resources including petroleum, its relative hydrocarbons
and natural gas, and (6) 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 toexpand the schedule of the union matters in four different occasions.
24. The Guardian dated 8th March 2001
In 1965 one item was added through the Interim Constitution of 1964 (act 21, 1964). Thiswas;
(i) Currency, coinage and legal tender (including paper money) banks (includingsaving bank) and banking foreign exchange and exchange control.
In 1967 three more items were added (interim const amend- act no 35) on the listof 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 arespecified 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 naturalgas.
And finally in 1977 when the Interim Constitution was replaced by a permanentConstitution. This item is:
(vi) The National Examination Council of Tanzania and all maters connected withthe function of the Council.
THE 1977 PERMANENT CONSTITUTION
The permanent constitution expressly provides for a separate government of Zanzibar, butdoes not provide for a separate government of Tanganyika. However, under theConstitution the government of United Republic has exclusive jurisdiction to deal withrespect all matters in and for Tanganyika (sect 34(1), (2) and (3) of 1977 const). This dualrole of the Union government led to tensions and mistrust .The most areas attributed tothese contradictions relate to, inter alia, the formation of the union, the nature andstructure of the union, party supremacy, special constitutional Court, the schedule ofunion matters and other constitutional changes.
The list of union matters has been a source of tag o war in so that the Tanzanian Court ofAppeal 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 on15th 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 thelegislature of Zanzibar to lay down procedure for Appeals to the Tanzanian Court ofAppeal.
Another important change brought by the 1977 Constitution affecting the union, was thecondition laid down for changing items which are union matters and other importantaspects of the constitution which did not exist in the 1965 Constitution, these items werenumerated under the third Schedule of 1977 Constitution (sect 52(1) (b) of 77constitution) and now appear under the second schedule of the same constitution asamended in 1984(sect 95(1) (b) of the 77 constitution)
Another significant change which could easily pass unnoticed was in the, third originallist. Defense was purportedly amend to read defense and security which was never beforea union matter, was never purportedly made one. Legally, these additions andamendments to the list discussed here in needless to repeat it contended that “ arerepugnant to section 5 of the fundamental and basic scheme of the union provided in theoriginal agreement.
The decline of the former East African Community paved the way of putting more non-union matters to the 1977 Tanzania constitution. All E.A.C matters were transferred tothe union government; after both Tanganyika and Zanzibar had surrender them to theE.A.C. Having this argument, Zanzibar lost its reserves as United Republic inherited bothTanganyika 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 thecourt 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 wasestablished, using two shares derived from Tanganyika and Zanzibar, however Zanzibarhas neither received dividends nor report of utilization of the fund, which were mergedinto the new BOT.
It should be borne in mind that, before the collapse of E.A.C in 1977, Banking was not aUnion 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 trickmethod 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 ParliamentArticle 85 of the Interim Constitution for an amendment where sub Article Xll dealingwith finance , banking , coins , foreign exchange and exchange control was added to theArticle of union.
Once the Republic gazette is official announced the amendment, the then Union FinanceMinister, Hon Amir H. Jamal wrote to Chairperson of EACB with reference numberTYC.46/01 dated 22nd March, 1966 informing that all rights of Zanzibar from that dayshould 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 EACBwas 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 countrieshad it’s ……..technically our fellow Tanganyikans , immediately after the 1964 Union
intentionally intend to uproot Zanzibar from the Board even if Bank was not withinthe items of union matters. However their efforts failed …… they were advised first toadd 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 EastAfrican Currency Board (EACB) was not a big deal as a
26. Act no 43 of the 1965 Interim Constitution27. Duni Ibid. 28. Presidential Campaign speech held Mazson Hotel (2000)
legal department of EACB assisted in this particular issue as it directed Tanganyika theproper method to stop Zanzibar as member of EACB.
Report of secretary of EACB says:
“Indeed it could be highly embarrassing as a measure likely to give furtherencouragement 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 meansindicated as come to include air transport which was not the mere item and indicate thecomplication of the Zanzibar economic dimensions.
Abubakar is of the opinion that:
“…the mere intention to add Air Transport from only Civil aviation was to stopZanzibar to have its own Airline Cooperation ………”29
Another added item differs to the Articles of Union is International relation and ForeignAffairs. By originally it was only Foreign Affairs. The notion that you cannotdifferentiate International relation and foreign affairs is of Hypocratic. Taking examples of Germany, Belgium and Scandinavian counties, for the sake of aidsyou will never pass through Ministry of Foreign Affairs. To have financial aid aconfidential aids and loans for Zanzibar it is more preferable to distinguish between thetwo as to ensure more prosperity without any intervention from Union Governmentbecause 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 Articlesof Union as added there technically. This was never discussed and consented; it wasjust 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 withinMinistry of Finance and later Ministry of Planning.
Union matters have been expanded to include insurance, fishing in economic zone andtransportation. The recent discussion in the Zanzibar House of the Representatives,debating the 2001/2002 budgets of Ministry of Trade, Industry and Tourism reflects theimpact of the expansion of the union matters. Members of the House criticized the Ordersissued by the union Minister of Trade32 which regulates the importation of sugar toZanzibar .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, mattersconcerning 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 amendmentpassed by National Assembly in its November1994 session. This amendment openly iscontrary to the 1964’s
31. Dira Ibid32. Dira Ibid33. 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 inZanzibar) shall be the Head of the aforesaid executive in and for Zanzibar, and shallbe the principal assistant to the President of the United Republic in the discharge ofhis executive functions in relation to Zanzibar.”
The above provision ensured the President of Zanzibar a permanent place in the UnionGovernment as one of its two Vice Presidents. However the 11th ConstitutionalAmendment abolished this special status to the President of Zanzibar and currently thePresident of Zanzibar is treated just like a Cabinet Minister. This is indeed a grossviolation of the Articles of Union.
This amendment contributed much to tension and contradiction of the union as mistreatsthe mere intention of the union, which was to link the people of Zanzibar andTanganyika. As a result, once the Zanzibar President stopped to be Tanzania Vice-President 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 ofUnited Republic cabinet.
It should be noticed that the Zanzibar President is the creature of Zanzibar Constitutionand not of the Union, so constitutionally speaking he is an outsider to the unionexecutive. For to be a member of union cabinet by virtue of his presidency of Zanzibar isincongruous.
Joseph Mihangwa has this to speculate:
“…even if this amendment had been of legal principles, it had to be ratified byTanzania 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 fearsthe 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 thenloyalty…”
34. Rai issue no. 530 pg 9.
Another area of possible conflict is the public finance. The Constitution of the UnitedRepublic of Tanzania 1977 provides for a Consolidated Fund forthe united republic of Tanzania into which all revenues or other moneys for purposes ofthe government of the united republic are paid. Similarly the Zanzibar Constitution 1984provides for Consolidated Fund for non-Union matters.
There is, however, no provision or any formula for the distribution of the revenuebetween the Union Government and that of Zanzibar. The matter becomes morecomplicated where there is no separate Consolidated Fund for Mainland. There is a needfor establishment of a separate consolidated fund for Mainland Tanzania and thusenhance the argument of federation of three clear governments, that of the UnitedRepublic, 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 neitherZanzibar 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 theview that it is very unfortunate to these Justices that they did not consider the origin ofthe United Republic and factors, which contributed to the Union. Since the UnionConstitution has specified for union matters, and that all non-union matters concerningZanzibar are not within the jurisdiction of Union Government, Zanzibar does not havelegal capacity to be a party to any treaty for non-Union matters. For instance, the status ofZanzibar in East Africa Community; who is going to represent Zanzibar for non- Unionmatters to which Union Government has no jurisdiction to deal with under theConstitution?
Recently we have witnessed another issue of Human Right Commission to include initem of union matters replacing the then Human Right commission of Tanganyikacollapsed in 2003.
In fact all above additional matters with the exclusion of Human rights Commission arelegally doubtful as the Zanzibar legislature was not involved in their commencementcontrary to Zanzibar constitution.
LEGALITY OF ADDITIONAL MATTERS.
The Articles of Union are generally accepted as the grund norm of the Union, andyet it does not itself provide for a mechanism of amendment. Instead, themechanism for amendment is provided for under the Union Constitution.Previously, all matters relating to the Union had to be tabled to the House ofRepresentative of Zanzibar.
Article 98 of the Union Constitution provides that for any amendment affecting theUnion, two-thirds of each side of the Union members in the Union Parliament shouldapprove it. Unfortunately, some amendments have been effected through manipulation ofthe laid down procedure.
There is added contention over where the issue is placed, whether under List A whichrequires two-thirds of the House approval or List B which requires a special majority ofall members of the House.
Hence, there is some validity to the conclusion that some articles were ‘smuggled’ intothe Union in order to expand the influence the Mainland exercises over Zanzibar, with theresultant erosion of the latter’s sovereignty.
Indeed the then President of Zanzibar, Dr Salmin Amour had ever declared openly thatZanzibar recognises only the original eleven (11) union matters as listed in the Articles ofunion .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’sautonomy 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 wasadded 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 yearsof its operation, a close reading of the same amounts to over 30 items, because there aresome articles which address a number of key issues in a single article.
In addition to these formal amendments, some Union issues are expanded throughadministrative directives. There is also a practice in the drafting of legislation that appliesmatters to both Tanganyika and the islands, for non-union matters.
At the extreme end of the above arguments is the questioning of the very constitutionalityof the expansion of the Union matters and the creation of the permanent UnionConstitution.
In other words, the process which was envisaged at the time of the Union was notfollowed. The process was in the main a CCM party process, which according to thisview, was affected without discussion and subsequent ratification of Zanzibar.
Furthermore, although the additions to Union matters were discussed in Dodoma with theparticipation of representatives from Zanzibar, several reasons were advanced toilluminate the illegality of the amendments.
In the first instance, it is contended that the effect of Article 98 is to ensure a veto ofZanzibari 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 apartner state. Instead, they are there as members of CCM as a party. This is why it ismandatory to have the amendments ratified in the House of Representatives of Zanzibarin 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 theconnivance of the Zanzibaris in Dodoma, who acquiesced in their promulgation bykeeping quiet as they were being passed. Furthermore, it is contended that someamendments were proposed by Zanzibaris themselves. A case in point was the making ofinternal 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 theunion 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 Unionmatters 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 hadunited with Tanganyika to form Tanzania. However, the preamble to the UnionConstitution 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. Forexample, in 1984, former President Jumbe drafted a constitution for Zanzibar, with anational 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 thesame position as Jumbe. Immediate past President Dr. Salmin Amour insisted on beingsworn in by the Chief Justice of Tanzania and not by the President of Tanzania, uponbeing appointed into the Union Government as required by the 11th Amendment of the1994 to the Union Constitution, because he did not consider himself subordinate to himand argued that Zanzibar was a sovereign state.
The issue of Zanzibar’s sovereignty Vis á Vis the Union was addressed by both theNyalali Commission and Kisanga Committee. However, the recommendations of bothCommissions on this issue were never implemented, and thus remain unresolved.
There are several dimensions to this issue, which point to the need for its comprehensiveresolution, 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 Appealruled that Zanzibar was not a state recognized under international law. As such, a personcould not commit treason against the Zanzibari government.
5. Dira no.15 /03 pg 11
While the effect of the judgment for the individual accused persons may have beenpositive, its implications for Zanzibar are indeed profound, and go to the core of theissues of sovereignty and autonomy that the Mission found to be of such great concern tothe people of the islands.
COMPLAINTS MADE AGAINST THE UNION.Despite 41 years existence the union of the Tanzania there have been claims in variousaspects 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 alwaysquestioned. Some contended that union intended to be unitary and other contended offederal arrangement. It was hoped that time would demonstrate the usefulness of theUnion and propel the peoples of the two countries to endorse it.
According to this line of argument, a Constitutional Commission charged with the task ofa permanent Constitution for the Union was to be subsequently established.
Unfortunately, to date both the form and the substantive content of the Union remainissues of considerable contention and dissatisfaction. While it might have been agreedthat a Constitutional Commission should be established within a year to discuss the formof the Union, the establishment of such a Commission was postponed on an annual basisand later indefinitely.
These have brought many disputes and mistrust to both Zanzibaris and Tanganyikans aseach blames other to be a source of the problem. While Zanzibaris do not support the ideaof unitary government as they think that this created for them a local and subordinategovernment to Tanganyika without any autonomy of its own, Tanganyika’s claim thatUnion government is of biased against to them, and even, through some of their MPsreclaimed to have government of Tanganyika with it full authority. However, the motionwhich passed by the Union parliament was pushed aside under the pretext that this wascontrary to ruling CCM policy.
While the ideals of the Union are not in dispute, there are different preferences for theform that the relationship should assume. There are those who argue that the current two-government system should be retained. On the other extreme, some have argued that infact only a single (fully unified) government is appropriate. A considerable body ofopinion 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 of1977 Tanzanian Constitution declares that, Tanzania is a one party state and that the partyshall 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 offundamental provision of the Article of union.
It should borne in mind that while the Tanganyika and Zanzibar united CCM or evenTANU and ASP was not a party to the union treaty , and it is never mentioned in any ofthe articles, in which ground the ruling has become a solely authoritative body beside theunion.
Prof Haroub Othman has an idea that:
“…the reason made Zanzibar to fail on decision making to its power originated from theidea of uniting TANU and ASP. Before the union Zanzibar enjoyed its autonomy fornon-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 thereis 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 becomeanswerable 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 theRevolutionary Council authority which seems to be more powerful in Zanzibar….” 8
“…After few years later many (Zanzibaris) recognised that it was a mistake to uniteASP with TANU ……”
Third, public finance is another area of controversy. The constitution provides for aconsolidated 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 revenuebetween the union government and that of Zanzibar .The matters became morecomplicated where there is no separate consolidated fund for Mainland. There is need forestablishment of a separate consolidated fund for Mainland and thus enhance theargument of federation of three clear governments, that of the united Republic, andseparate and autonomously government of Tanganyika and Zanzibar.
In addition to that the 1977 Tanzanian constitution also established a Joint FinanceCommission consisting of not more than seven (7) members who are appointed by thePresident. Here there is no guarantee that the composition shall be of equal membersfrom both sides of the union. This general power of appointment given to the UnionPresident to appoint members in union institutions has been questioned by the Zanzibarisover so many issues.
In order to remove these anomalies, it is suggested that provisions for allocation anddistribution of revenue between the government of United Republic, the government ofZanzibar and that of Mainland Tanzania should be entrenched in both Constitution; thatof United republic and that of Zanzibar.
Fourth, much of the contention over the Union relates to issues of resources and theirdistribution between the two entities. In the first instance, many a Zanzibari argue that itshould have 4.5% of total revenue collected for Tanzania. On the other hand, MainlandTanzania according to the opinion of one Mainlander, views Zanzibar as “a small partnertaking a lions share of Aid and Finance amounting to 4.5 %. Zanzibar is the size ofTemeke 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 Zanzibarwere two different economies. However, harbours as one of the major contributors toZanzibar’s economy falls under the Union. Although Zanzibar is by law a free port, thisis not reflected in practice, because of the structure of taxation. The expansion of CivilAviation to include Air Transport and making Petroleum as Union matter has been metwith further suspicion. One respondent queried why natural gas and petroleum should beUnion
9. Section 123(a) of Zanzibar Constitution, 1984.
matters, while gold and diamonds are not. Inevitably, if oil is discovered off shore inZanzibar, as some reports seem to indicate, it is likely to complicate the economicdimensions 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 asgold and diamond in Mainland but they have been union matters…”10
“…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 itemsalong 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 Uniongovernment on the Oil issue. Taking example of North and South Sudan, Angola andNigeria which had disputes originated from natural resources says:
“…Zanzibar will never let this (oil issue) without recognised legal procedures to betaken…” 11
The report of Union problem committee which was issued by the Zanzibar governmenthas this to say:
“….oil is not the only natural resource available in Tanzania, so it should be better ifwill 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 ofTaxation. The operation of one customs duty regime throughout the Mainland andZanzibar has resulted in the decreased utilisation of Zanzibar Port thus causing severefinancial loss. Hence the queries: How can revenue be a Union matter? Conversely, howcan a government operate without revenue? It is felt that the marginalisation of Zanzibaris a deliberate act intended to strangle the economy of Zanzibar, turning it into a meremarket for Tanganyika. As such, the trade deficit of 300% between the island and theMainland is not surprising.
Mazrui is of the opinion that Tanzania is one country but Zanzibar does not enjoy fullythe rights and privileges as regards business in Mainland. He said he himself was stoppedto import cement by Tanzania government but other Tanganyikans from Mainland areallowed to doso. He added:
“Zanzibar has many possible ways to boost her economy but Mainland puts in therealization of this.’’ 13
He advises the Union government to stop intervening Zanzibar in economic is chest fordevelopment 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 usedas a transit point for goods to the Mainland. Furthermore, a view was expressed that someof 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 thematerial 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 thatZanzibar has been used as a transit point for goods to Mainland. Further more a view wasexpressed that some of the materials imported through Zanzibar are not taxed and therefore 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 ofthe maintaining the union for example Tanzania revenue Authority is funded from thebudget of the Mainland and further more it is stated that Zanzibar does not contribute tothe Union cost so Zanzibar is exploiting union government.
Nyalali commission reports:
“These complaints flow from the failure of Zanzibar government to meet fully itsannual obligations for the carrying out of union matters, along with the opportunity ofZanzibaris to work in the government and parastatals of Tanzania Mainland whilst the
nationals of the Tanzania mainland have no similar access of working in thegovernment and parastatals of Zanzibar.”14
Forth, high education is another area of controversial. Zanzibaris argue that there is noequal 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 isestimated that more than 6000 graduates graduate annually but the number of Zanzibargraduates is less then 50. In fact there is a need to establish some Union Institutes inZanzibar and to add more Zanzibaris to those institutions.
Sixth, Zanzibar complains about political marginalisation, as exemplified by the fact thatto date no Zanzibari has ever been appointed Attorney General, Chief Justice, CentralBank Governor or Inspector General of Police in the Union government. This iscompounded by the submission that even when appointed, historically, some Zanzibarishave used the union to advance their own personal and party interest. The net effect of theabove is growing xenophobia between Zanzibaris and Mainlanders.
Even for the positions earmarked for Zanzibar, the Zanzibar government has notsubmitted names. The Court of Appeal, Deputy Governor of the Central bank is cases inpoint. 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 thereverse is not true. Similarly, Zanzibaris are said to think that all problems emanate fromthe Mainland. This viewpoint was exacerbated by a recent spate of prostitution and armedrobberies in Zanzibar committed by criminals/gangsters who were allegedly from theMainland. Equally, there are many stereotypes about Zanzibaris by Mainlanders.
Last but not least it is claimed that state brutality is imported from the Mainlandspecifically to ‘steal’ elections, rather than maintain law and order, because the police andarmy are Union matters. Moreover, there is no evidence of consultation with the Zanzibargovernment before the deployment of the military or other security forces.
It is non-deniable fact that expressions of dissatisfaction with the Union come from bothsides (Mainlanders and islanders), albeit for different reasons. There is considerableindifference and ignorance of Mainlanders about the isles. To many Mainlanders, Unionmatters are addressed by the Union government comprised of Tanganyika and Zanzibar.This explains the lack of appreciation of complaints by Zanzibar. As stated by oneMainlander:
“We see them passing issues in Parliament and later they complain. We do not hearthem 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 thatit has a population of about 1 million people, but has over fifty representatives in theUnion parliament. On the other hand, Zanzibar argues that it is a sovereign state and assuch 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.
The union between Tanganyika and Zanzibar is now more than forty (40) years old, butits history has been very bumpy throughout the period under almost every President ofZanzibar. It has led to the forced resignation of one President; dismissal of two chiefMinisters 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 warbetween Tanganyika and Zanzibar.
First, as the issue addressed in this particular dissertation is legality of the additionalUnion matters added after signing of the Articles of Union there is a need to keep a sharplook on it as to avoid more problems in near future. As the Union is deemed to be ofmutual agreement there is a need to revisit the Articles of Union and Tanzaniaconstitution as to understand the real position of those additional matters. If there arefound 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 doubtfuladditional 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 theproblems in such away that our neighbouring counties may be motivated to join with
As it is not enough as suggested that the union list should be limited or de-unionised andgive a breath space to Zanzibar, for instance, external trade and borrowing as are union
matters, so automatically Zanzibar cannot preserve its autonomy granted by theconstitution, and the treaty, if they remain to be union matters. The researcher suggeststhat, the constitution should make clear that both Tanganyika and Zanzibar can directlynegotiate 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 Banksand be allowed to enter into bilateral and multilateral arrangements and take part in thefield of International co-operation, while the union government should be limited todefence, citizenship and currency.
Second, there should be referendum as to give an opportunity to discuss the real form ofthe union needed by Tanganians tendency to leave every thing about union to rulingCCM definitely is not a solution. Tanzanians should be given a forum to discuss whatkind 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 isparticularly sensitive within the union- are there non –negotiable sacred principles? Isthe founding fathers’ creation not subject to discussion? Had Nyerere and Karumebefore signing the treaty foreseen the problems to be encountered under the unionarrangement? Did they suggest solutions to the unanticipated problems…” 2
Prince Bagenda insists on the Referendum as to avoid further tug of war to the peopleeven if our union has existed for many years. He says:
“… The soviet Union existed for more than 70 years but it came suddenly to collapseas 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 whichshould 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 andZanzibar 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 onewith the wider jurisdiction to deal with the union matters and matters related toTanganyika lead to invisible strong Tanganyika, it is advisable for the centre not to be toostrong if the fears of the smaller state of being swallowed up are to be allayed. Themaking of federal structure more visible will help to address the issues which exist suchas contribution and funding of the union, and which no equitable solution has beensought during forty years of the union.
At this particular juncture it is advised that even the union legislature to be of twochambers (houses), the upper chamber comprising of equal members from the bothpartners of the union elected by electorate, and should have the constitutional power toover-ride the lower chamber in matters agreed by the two states and provided in theconstitution. The lower chamber should be comprised of elected members presenting theconstituencies.
On the side of presidency, there should be a rotation of presidency between Zanzibar andTanganyika 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 whichnow under the Union and that of Zanzibar needed to be shown clearly and defined in theconstitution 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 complaintsfrom 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 formthe 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 realsense are Tanganyika Ministries such as Ministry of Tourism and Ministry ofcommunication) get aid in the name of Tanzania. So there should be a clear percentage ofinternational aid between government of Tanzania and that of Zanzibar. This occurs dueto the fact some times the union government gets aid from abroad in the name of UnionRepublic 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 beclear is that number of Zanzibar students is becoming smaller while High Education is aUnion matter. Again, the Union government should build some universities in Zanzibarbecause all Union government Universities are in Tanzania Mainland.
Sixth, a special constitutional Court of the United Republic should be instituted as toarbitrate any possible conflict between the union government and any state government oramong states inter se. There is possibility of Union government and that of Zanzibar tobe governed by different political parties having different policies, necessitating theinvocation of the jurisdiction of the Court. The jurisdiction should be extended to covercases of conflict between the partners. The court should be comprised of equal numberchaired by a retired Chief justice from any Commonwealth jurisdiction.
Seventh, the researcher suggests that the constitution should establish a separateConsolidated Fund for the Union government (and of Tanganyika under Federation) andthat of Zanzibar. Any state should allowed to negotiate loans and grants and the UnionConsolidated Fund should guarantee these loans. An equitable formula should be devisedfor the allocation and distribution of revenue and funding of the union budget.
Eighth, all matters concerning Ministry of Foreign Affairs and International Relationshould be made clear as to avoid further misunderstanding between the two. It isrecommended that there should be flexibility on these matters as to enable Zanzibar to befree in finding friends and development partners.
Taking the examples of South Caroline, Muombwa says it independently deals with tradeand foreign affairs even though it is under the U.S Federal government, and has boostedits economy and trade in such away Caroline is the third producer of B.M.W cars in theWorld.8
8. Muombwa Ibid
Last but not least when the union parliament makes any amendment to the union mattersshould not ignore the Articles of Union. It has been experienced that now is a normal lifeto disvalue the treaty whenever the constitutional amendments occur.
It is important that the treaty obligation arising out of the Articles of Union, 1964 befaithfully discharged. The Articles is a “marriage certificate” between the founders of theunion. It is strongly suggested to the partners to sit down, evaluate and assess ‘theirmarriage’. The union’s 41 years of existence is a short time for a nation, but it is a longtime for assessing the strengths and weaknesses, a number of socio-politicaldevelopments 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 possiblethreats of a counter revolution in Zanzibar and threats of Zanzibar being used by thesuper power are no longer relevant.
The researcher suggests that the partners should sit down and formulate an equitable andworkable federal structure for the interest of Tanganyika and Zanzibar. The equitable andworkable Federal structure suggested in this paper will built trust and confidence amongthe partners and encourage others to join.
Thus the major impediment to the union has been the fact that for a long time it has beena taboo to discuss the issues and any one who dared mention the subject invited the wrathof the state and its ruling party who did not hesitate to label him or her as enemy of thepeople 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 beexpressed 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 byall stakeholders to ensure that they will be maintained by whoever is in power.” 9
9. Duni, Panel Discussion on Union of Tanganyika and Zanzibar.
“That the union Agreement had established only 11 items as union matters. Now thelist 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 theunion 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 politicalparties so that the agreed formula will be honoured by whichever political party thatcomes 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, theconstitution must make it clear not only the nature and substance of the union, but alsothe procedures of its implementation.
At the present there are many issues which are non- union matters but they areimplemented as if they are. This leads to strong statements from the both sides. There areno establishment procedures for allocating union posts. Indeed no effort has been made tosatisfy the demands of both sides. The outcome of all this is that one side feels that it isgetting a raw deal. In this situation outcries over union shortcoming will be perpetual. Anew 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 theexperience 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 democracyand more immediately reassess the direction in which our politics are moving. Withoutsuch 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 Iestablish Agenda for discussion and went on to talk for more than two years underCODESA 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 goodwill and particularly for CCM and its government s to accept to sit down with otherunion’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, butthis 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 arepressing for change. It is a current, which cannot be stopped; it would be wiser to redressthe situation.
1.Jumbe,A - The Partner-Ship, Union of Tanganyika andZanzibar - 30 Turbulent years, AmanaPublication 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, , TemaPublisher ( 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 ANDZANZIBAR A MARRIAGE OFCONVENIENCE? (2001)
2. Bakery, A. K. - Post Independence Constitutional development inZanzibar. (?)
3. Dourado,W. The Consolidation of the union – A basic re-appraisal.
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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)