Declaration
of independence?
In
his discussion paper presented at the Half Annual General Meeting of the
Tanganyika Law Society Held at the Arusha International Conference Centre, in Arusha, recently, a Member of Parliament for Singida East
constituency, Hon. Tundu Lissu raised a heated debate among participants,
scholars and lawyers who were in attendance on the real meaning of the Aug
2010-tenth Amendment to the Zanzibar Constitution.
He
said the tenth amendment is, consequently and by all means, a major questioning
of the fundamental tenets of the Union Constitution as Tanzanians know it. Hon.
Lissu said from the standpoint of the current Constitution of Zanzibar, there
is no longer one country referred to in the Union Constitution but two.
He
said on 13th August, 2010, the Zanzibar House of Representatives enacted the
Tenth Amendment to the Constitution of Zanzibar. Though touted as the consummation of the Muafaka wa
Kisiasa between the ruling Chama cha Mapinduzi (CCM) and the opposition Civic United Front (CUF)
– and thus paving the way for the formation of the Government of National Unity
– the Tenth Amendment has to be seen as a unilateral declaration of Zanzibari independence. Both legally and politically, it
challenges the constitutional basis of the Union as agreed upon in the Articles
of the Union. Significantly, it also ‘claws back’ the various aspects of the Zanzibari autonomy that were lost in dubious circumstances
after 1964.
Citing
an example, he said whereas the Zanzibar Constitution, 1984 had previously –
and rather sheepishly - recognized Zanzibar as ‘a part’ of the United Republic,
following the enactment of the Tenth Amendment, Article 2 of the current
Constitution now declares boldly that ‘Zanzibar is amongst the two countries
that form the United Republic of Tanzania.’ And whereas the
President of Zanzibar was previously a mere Chairman of the Revolutionary
Council of Zanzibar and head of the government thereof, Article 26(1) of the
current Constitution proclaims the Zanzibar President as the ‘Head of State of
Zanzibar, Supreme Head of the Revolutionary Government and Chairman of the
Revolutionary Council.’ The constitutional myth of Tanzania as ‘one country’
could not have been brought into a sharper relief!
Unfortunately
for the Union, the story does not end there. As Shivji
observes in his Pan-Africanism or Pragmatism, “...
Zanzibar has never fully accepted to be without any armed personnel under its
control.” This reluctance to be
defenseless continues to this day. Thus, whereas the Acts of the Union had reserved
‘defense’ and ‘police’ as Union Matters under the exclusive jurisdiction of the
Union Government, Article 121(1) of the current Zanzibar Constitution creates
what can only be termed as the nucleus of the Zanzibari
armed forces, he said
Mysteriously
called ‘Special Departments’ (Idara Maalum za Serikali
ya Mapinduzi ya Zanzibar in their Kiswahili rendering), these units are
listed – under Article 121(2) – as Jeshi la Kujenga Uchumi (JKU), Kikosi Maalum cha Kuzuia Magendo (KMKM) and Chuo
cha Mafunzo.
Ominously for the Union, Article 121(3) empowers the Zanzibar President,
‘if he sees fit’, to establish any other Department to be an Idara Maalum.
Now,
on the basis of the Articles of the Union and the Acts of Union, the successive
Constitutions of the United Republic have recognized the President of the
United Republic of Tanzania as Head of State, Chief of the Union Executive and
the Commander-in-Chief of the Tanzanian Armed Forces. Now however, Article 123(1) of the Zanzibar
Constitution confers upon the Zanzibar President the title of ‘the Supreme
Commander of the Special Departments’ with powers “... to do anything which he
feels, in the (Zanzibari) national interests,
appropriate.” Under Sub-Article (2), the powers of the Supreme Commander under
Sub-Article (1) “... include the power to issue orders to perform any function
related to that Department for (Zanzibar) interests.” It is my humble
submission that these are, inter alia, war-making powers! He observes.
At
the very least, the provisions cited above challenge the very basis of the
Union by questioning the Articles of the Union and the Acts of Union – all of which
reserved ‘defence’ and ‘police’ matters to the Union
Government – and various provisions of the Union Constitution , all of which
relate to the powers of the Union Government in defence
and security matters and the status and prerogatives of the Union President as
Commander-in-Chief. And although Article 151(1) of the Union Constitution
defines ‘Government’ as including the Revolutionary Government of Zanzibar,
etc., it is my submission that the power of the ‘Government’ to create armed
forces under Article 147(1) of the Union Constitution does extend to the
Revolutionary Government of Zanzibar in view of the Articles of the Union and
the Acts of Union which reserved defence and security
matters to the Union Government.
UNION JUDICIARY?
On
Union Judiciary, Hon. Tundu Lissu said there are other subtle declarations of
independence. Although not a Union matter under the Articles of Union and the
Acts of Union, the Court of Appeal of Tanzania was surreptitiously imported
into the First Schedule of the Union Constitution by the constitutional
amendments of 1979, following the disbanding of the Court of Appeal for Eastern
Africa and the enactment of the Appellate Jurisdiction Act. Its jurisdiction was eventually recognized by
Zanzibar, albeit with certain exceptions and limitations, when the 1984
Constitution was enacted.
The
Tenth Amendment to the Zanzibar Constitution has widened the scope of the
limitations to the jurisdiction of the Court of Appeal in Zanzibari
matters. While it has retained the prohibition against, inter alia, matters
involving interpretation of the Zanzibar Constitution and Islamic matters,
Article 24(3) of the current Constitution has now expressly forbidden appeals
to the Court of Appeal in matters relating to fundamental rights, duties and
freedoms under Part Three of the Zanzibar Constitution. In other words, the
Court of Appeal can no longer adjudicate on matters of fundamental rights
emanating from Zanzibar.
There
is no doubt, given the constitutional authority of Article 4(3) read together
with item 21 to the First Schedule as well as Article 117(1) of the Union
Constitution, that the limitations placed to the jurisdiction of the Court of
Appeal of Tanzania by the Tenth Amendment are ultra vires
the Union Constitution. However, Zanzibar appears to have decided to clip the
wings of the Court of Appeal following the latter’s controversial decision in Serikali ya Mapinduzi
Zanzibar versus Machano Khamis
Ali and 17 Others to the effect that
Zanzibar was neither a country nor a state for purposes of the law relating to
treason.
ROLLING
BACK THE IMPERIAL PRESIDENCY?
Hon.
Tundu Lissu explained that the Union President has had his powers in matters
pertaining to Zanzibar similarly clipped. Thus, for example, he added, under Article 2(2)
of the Union Constitution the Union President is empowered to demarcate the
United Republic into regions, districts and other areas. Similarly, under 61(3)
of the Union Constitution, the President is duty-bound to advise the Zanzibar
President in regard to the latter’s appointment of Regional and District
Commissioners for Zanzibar. These provisions were, to be sure, contrary to the
Articles of Union and the Acts of Union. Now, following the Tenth Amendment,
the current Constitution of Zanzibar has put paid to those powers. Thus, under
Article 2A, only the President of Zanzibar can demarcate Zanzibar into regions,
districts and other geographical units. In addition, under Article 61(1),
Zanzibar President is no longer obligated to receive advice from the Union
President in his appointment of Regional and District Commissioners for
Zanzibar.
Finally,
he said, section 5(1)(b) of the Acts of Union had
provided for a separate Legislature and Executive for Zanzibar ‘constituted in
accordance with the existing law of Zanzibar....’ That, however, did not deter
the imperial appetites of the Union authorities. No wonder then that the Union
Constitution has devoted the whole of Chapter Four to ‘the Revolutionary
Government of Zanzibar, Revolutionary Council of Zanzibar and the House of
Representatives of Zanzibar.’ In his Inaugural Professorial Lecture of January
1990 published as The Legal Foundations of the Union, Professor Shivji had called this “... an unnecessary and fortuitous
interference in the affairs which are within the exclusive jurisdiction of
Zanzibar.” It is for this reason, and quite rightly, that following the Tenth
Amendment, Zanzibar has radically redrawn its political and constitutional
power map without paying any heed to Chapter Four of the Union Constitution.
To
recap, from the standpoint of the current Constitution of Zanzibar, there is no
longer one country referred to in the Union Constitution but two. Similarly, defence and security matters are, from the same
perspective, no longer Union Matters, for each country now
has its own armed forces and each now has its very own
Commander-in-Chief or Supreme Commander. Each of the latter Commanders can now
summon their ‘countries’ to war, etc. In addition, since we now have two
countries and two states, it follows logically that we must have two heads of
state. And even though the Court of Appeal may still hear certain appeals from
Zanzibar, it is the Zanzibaris themselves who now
have the power to decide which appeals should go to that Court and which should
not.
On
the other hand, just as it did with the Bill of Rights in 1984, Zanzibar has
once again blazed the constitutional trail by challenging the imperial powers
of the Union President by divesting him of the powers to demarcate
administrative areas in respect of Zanzibar or to interfere with the
appointment of Zanzibari administrators. The Tenth
Amendment to the Zanzibar Constitution is, consequently and by all means, a
major questioning of the fundamental tenets of the Union Constitution as we
know it. It has not, however, received a single comment in Professor Wambali’s paper! Given the fact that the learned Professor
has ‘conclusively’ declared himself an unqualified ‘supporter’ of the ‘Union as
it is’, his silence on the recent constitutional developments in Zanzibar -
which have ‘disrupted’, perhaps fatally, that which should not be disrupted but
‘maintained intact’ - is very loud and conspicuous indeed.
To
conclude therefore, one can easily say that why should that big amendment take
place against the current union constitution? Is it the role of academicians,
lawyers, constitutional review commission or the general public to address the
matter?
By Mirror digest reporter
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