By PIUS
MSEKWA
Former Speaker of the
Parliament of Tanzania.
INTRODUCTION.
This presentation is an abridged
version of a series of articles which I wrote for my
Weekly
‘Current Affairs’ column in the DAILY
NEWS, starting from Thursday 1st June, 2017. At that particular
point in time, serious public discussions were taking place regarding the
matter, and process, of enacting a new Constitution of the United Republic of
Tanzania; which had been motivated by the Constitution making process which had
been put in place by President Jakaya Kikwete of the fourth phase Government.
These discussions were being actively promoted mainly by Jukwaa la Katiba. Thus, at the time when they were
published, the said articles were intended to be my personal contribution, and
participation, in those discussions. But
also for the wider purpose of enhancing the public’s general knowledge about
matters relating to the concept of ‘Constitutionalism’, and its application in
Tanzania.
Most of
this material was lifted from my book titled: Reflections on the First Decade of Multi-party Politics in Tanzania
(Nyambari Nyangwine Publishers, Dar es Salaam, 2014).
But apart from the desire to
participate in the ongoing discussions which were taking place at the time, the
writing of these articles was also influenced by the felt need to enhance the general
public understanding of matters relating to Constitutionalism. It is in pursuit of that objective that I
decided to present, through my weekly column, a series of Constitution-related
articles, which were intended to serve as a small contribution to the enhancement
of the knowledge and general understanding of these matters among our
readers. I was however keenly aware,
that there were probably not be very many of our readers who have sufficient
interest in this specialized subject. This is so because, for most of our
ordinary citizens, Constitutional matters are not the kind of “bread and
butter” issues over which they are expected to hold strong views one way or the
other.
As will be shown later under the ‘Peoples’ participation’ section, the ordinary person’s everyday concern is mainly
in respect of issues related to his
fight against the three declared enemies of poverty, ignorance and disease; namely matters relating to his health care,
the provision of clean water for his domestic use, and education. But, in fact, that
is what should encourage us to provide such knowledge to them, as part of the dedicated
battle against ignorance. And that is, precisely, what I attempted to do.
Current new developments
By courtesy of the author, I
recently gained access to a series of lectures complied by Idd R. Mandi, a
seasoned lecturer at the Public Law Department of the University of Da res
Salaam School of Law. His focus in these lectures is on the subject of
“Constitutional Change and Constitution Making”; which has very close
relationship with my own subject of “Constitutionalism and Political Change in
Tanzania”. I therefore felt that I could make a small contribution to
supplement his sterling efforts in this area of study. And that was the
principal purpose of compiling this presentation.
The subject matter of this presentation.
The heading of this presentation is
“Constitutionalism and Political Change in Tanzania”. This formulation is quite
appropriate, because ‘Constitutionalism’ and ‘political change’ are very closely
related.
This is so because ‘Constitutions’
are primarily concerned with the control of political power and authority. The
term ‘Constitutionalism’ actually implies “good governance”, as opposed to ‘authoritarianism’.
Indeed, it is for the specific purpose of achieving ‘good governance’ that
Constitutions normally contain devices, or checks and balances, which are
designed to prevent authoritarianism or, in other words, to prevent the abuse
and/or misuse of power.
Political change.
Political change.
In this context, “Political change”
generally means a shift of political power. And in the majority of cases, a new
Constitution is normally enacted following the occurrence of a major political
change, particularly when there is a change of sovereignty. For example, in the
particular case of Tanzania, there have been four separate events of major
political changes which implied a change of sovereignty, and which, as a
consequence thereof, necessitated the enactment of an entirely new
Constitution. These events were: (i) Tanganyika’s independence in December
1961; (ii) Zanzibar’s Independence in December 1963; (iii) The Zanzibar
Revolution of January 1964; and (iv) The Union of Tanganyika and Zanzibar in
April 1964.
Each of these events produced a major political
change. In the case of the independence
of Tanganyika, the event implied a transfer of sovereignty from the colonial
government, to an independent government of Tanganyika; and, in the case of the
Zanzibar Revolution, a transfer of sovereignty from a monarchy (the Sultan of
Zanzibar), to a Peoples’ Republic. The Union of Tanganyika and Zanzibar merged
the sovereignty of two independent states, and created one sovereign state, the
United Republic of Tanzania. As can be
seen, each of these events involved a change of sovereignty, thus necessitating
the enactment of a new Constitution.
The contents of Constitutions.
Because Constitutions are primarily
concerned with matters relating to political power and authority, their
contents normally prescribe the location, conferment, distribution, and the exercise
and limitations, of such power and authority among the stipulated organs of the
State. Constitutions also normally include explicit guarantees of the rights
and freedoms of the individuals within the State. They include the principles
by which the State will be guided (or to which it ought to aspire), plus
statements of the citizen’s duties and responsibilities.
There is no pre-ordained stereotype
of an ideal Constitution. The form and contents of a country’s Constitution
usually depend on the following factors:
(a) the political forces which were at work when the relevant Constitution was established,
(b) the commonsense consideration of practical convenience at the material time, and
(c) the precedents which were available for the guidance of the constitution makers concerned. As will be explained later in these articles, these are the principal factors which have influenced the process of constitution-making even here in Tanzania after the country’s independence.
(a) the political forces which were at work when the relevant Constitution was established,
(b) the commonsense consideration of practical convenience at the material time, and
(c) the precedents which were available for the guidance of the constitution makers concerned. As will be explained later in these articles, these are the principal factors which have influenced the process of constitution-making even here in Tanzania after the country’s independence.
The sanctity of Constitutions.
The Constitution of a country, (any
country for that matter), enjoys a special position of authority within that country’s
legal system. In view of that fact, it may be of considerable help to our
readers, for me to start this presentation with a brief explanation of this
concept, which is commonly known as “the sanctity of the Constitution”; and
what it actually means. The
term “sanctity of the Constitution” arises from the fact that a country’s
Constitution is the fundamental law of the land. The Constitution is what
creates the principal organs of the country’s Governance system. It establishes the Executive, Legislative, and
Judicial Institutions of the country concerned; and describes the functions of
each of those Institutions; and also provides for the distribution of powers
among them. In other words, the Constitution is the legal foundation of the
legitimacy of the country’s political power and authority.
PART
ONE.
CONSTITUTION
MAKING IN TANZANIA.
The concept of ‘Constitution-making’
Constitutions
are normally first put in place, and are thereafter amended from time to time,
in order to accommodate the socio-political changes which do inevitably occur
in the relevant communities in the course of time.
The term ‘Constitution-making’ implies
the writing of an entirely new Constitution. But the term ‘Constitution amendment’
relates to the introduction of changes in the existing Constitution.
For example, very soon after the
re-introduction of multi-party politics in Tanzania, vocal demands for the
enactment of “a new multi-party Constitution” were frequently raised by the Opposition
political parties. These demands did not succeed at that time, simply because
the ruling party was of the settled view, that unless there is a fundamental
political change, such as a change of sovereignty, or a merger of sovereignty;
there is no need of undertaking the hugely expensive process of enacting an
entirely new Constitution. It was felt that such ‘consequential’ events can be
adequately accommodated through Amendments to the existing Constitution. These are the precedents which have
been provided by countries like the United States of America and India, which
have continued to operate on the basis of their original Constitutions as they
they were first enacted; but have only introduced amendments to them from time
to time, as the need arose for doing so.
On
the other hand however, new Constitutions have been enacted in countries like
South Africa, Uganda, Kenya and a few others, mainly for the reason that the
requirements for a new Constitution were fully satisfied. We will talk about these
requirements later.
Nevertheless, Opposition demands for
a new Constitution for the United Republic of Tanzania were eventually granted
in 2011, when President Kikwete, in his new year speech welcoming the fiftieth
anniversary of Tanganyika’ independence, agreed to put in place a process for
the enactment of a new Constitution of the United Republic. At the time of writing, this process has not
been completed.
In view of these Opposition demands
and their earlier rejection, we will come back later, to explain what we
consider to be the requirements for the making of a new Constitution, that is
to say, requirements which cannot be fully satisfied by just introducing
amendments to the existing Constitution.
In the meantime, we will examine the
special procedures which are required for the making of a new Constitution.
The established procedure for the
process of making a new Constitution, is that it has to be enacted
by a special body, designated as a “Constituent Assembly”. This procedure is totally different
from that which is prescribed for enacting the ordinary laws of the land;
including that of making amendments to the existing Constitution.
A ‘Constituent Assembly’ is a unique
Constitution making organ, which serves two specific purposes. First, it
signifies the ‘special legal sanctity’ of the Constitution, by giving it this
special procedure, which is totally different from that which applies in enacting the ordinary laws of the land, which are
enacted by the Parliament of the country. But secondly, the ‘Constituent
Assembly’ route removes the necessity of having to obtain the assent of the
President, which is a necessity in the case of all the ordinary laws which are
enacted by Parliament. Thus, unlike such
other laws, a new Constitution takes effect immediately after its enactment by
the Constituent Assembly, without having to be assented to by the President.
A ‘Constituent Assembly’ may be
created either through a process of elections, whereby its members are elected
directly by the people, and given the sole mandate of enacting a new
Constitution. This is what was done in Uganda in 1995 for the enactment of their
new Constitution, following the ouster of dictator President Iddi Amin Dada; or
it may be created by the President appointing its members, as has been the
practice in Tanzania. However, in the
case of the Tanganyika Republican Constitution, an Act of the Tanganyika
Parliament was enacted, which converted the existing National Assembly into a
Constituent Assembly. But thereafter, the normal practice has been
for the President to appoint the members of the relevant Constituent Assembly,
by notice published in the official government gazette. This is what was done in respect of the new
Constitution of 1977, whose members were appointed by President Nyerere through
Government Notice (GN) no. 39 published on 25 March, 1977.
The normal requirements for enacting a
new Constitution
It has been my contention, that there
are certain specific political events of a fundamental nature which, when they
occur, they unavoidably necessitate the making of a new Constitution. In my own
experience, such events have been the following: - (i)
Where there is a change of sovereignty. (ii) Where there is a merger of
sovereignty.
(iii) Where the previous Constitution has been abrogated, usually
as a result of a military coup. (iv) Where there is need to abandon a totally
unacceptable Constitution, such as the apartheid Constitution of erstwhile
South Africa.
It is primarily on the basis of this
understanding, that the ruling party (CCM) has consistently rejected the demands
by the Opposition parties, for the enactment of a new Constitution, following
the re-introduction of the multi-party system. Such refusal being based on its
firm belief, that such ‘consequential’ political change could be adequately
accommodated by making the necessary amendments in the existing Constitution,
without undertaking the hugely expensive process of enacting an entirely new
Constitution. That
is what actually explains the introduction of the 1984 major amendments to the
Constitution (designated as the ‘Fifth Constitutional Amendment)’, rather than going
through the process of enacting a new
Constitution; following the comprehensive constitutional decisions made by the
CCM National Executive Committee, and published in its policy document titled MWONGOZO WA CCM WA MWAKA 1981.
That
is the reason also why, following the re-introduction of multi-party politics
in 1992, rather than going through the process of enacting a new Constitution,
only major amendments, designated as the ‘Eighth Constitutional Amendment’,
were made consequent upon the re-introduction of the multi-party political
system.
In the words of the relevant CCM resolution, these changes were made “in
the circumstances of the global political environment, which made it obvious
that a change to multi-party politics was inevitable”. Thus, they were treated
as ‘consequential’ changes.
Constitution making in Tanzania: the
actual practice.
The practice of Constitution making
in Tanzania has, generally, followed this pattern, namely that a new
Constitution has been enacted only when
there was some such fundamental political change, specifically involving a
change of sovereignty.
If
this could be rightly called a ‘principle’, then this principle was first
applied during the making of the Republican Constitution of Tanganyika, in
1962.
This was amplified by Prime Minister Rashidi Kawawa’s statement, in his
speech introducing the motion for its adoption by the Constituent Assembly. He
said the following: “Mr. Speaker, This
Constitution has been prepared in accordance with the proposals contained in
Government Paper no. 1 of 1962. However,
although the Government Paper referred to the making of amendments to the
existing Constitution, we have thought it best to substitute an entirely new
and self-contained document, in order to
mark such a fundamental change”. (Emphasis added).
The ‘fundamental change’ referred to
by the Prime Minister, was the change of sovereignty from what was known as
‘Dominion’ status; whereby the people of Tanganyika owed their constitutional allegiance
to the British Queen, who remained the Head of State of Tanganyika; to a new
Republican status; whereby they now owed such allegiance to the President of Tanganyika,
elected by the people of Tanganyika themselves as their Head of State and
Government.
This fundamental change of sovereignty is what necessitated the making
of a new Constitution, the Republican Constitution of Tanganyika, of 1962.
Then quickly followed a merger of sovereignty.
The next new Constitution to be enacted
was the Constitution of the United Republic of Tanzania, 1977. This resulted
from another fundamental change, involving a merger of sovereignty when, in
April 1964, the Republic of Tanganyika
merged with the Peoples’ Republic of Zanzibar, to create a new sovereign state,
the United Republic of Tanzania.
This inevitably necessitated the
enactment of a new Constitution, to cater for the new sovereign state.
Examples of other fundamental changes.
Other fundamental changes requiring
the enactment of a new Constitution, include the following:-
(i)
Where a previous Constitution has been abrogated.
There
are many examples in the countries of Africa, where, at different time periods,
military coups have overthrown the democratically elected Governments, and
abrogated the existing Constitutions as a consequence thereof. For example, when military General Iddi Amin
ascended to power in Uganda as a result of a successful coup against President Milton
Obote in January 1971, he rapidly abrogated the Uganda Constitution, and
started ruling by Decree. Thus, when he
was eventually removed from power several years later, it became necessary to
enact a new Constitution, to replace that which had been abrogated
(ii) Where there is a need to abandon a totally unacceptable Constitution.
(ii) Where there is a need to abandon a totally unacceptable Constitution.
When the obnoxious apartheid regime
in South Africa was eventually removed from power by the democratic forces
united behind Nelson Mandela, it became necessary to enact a new Constitution,
which would govern the new democratic State of South Africa.
But these are not binding rules.
However, I am fully aware that the
new Constitutions of Kenya, Malawi, and other countries, which have actually opted
to enact ‘new’ Constitutions even when there were no such fundamental changes
of the kind listed above. In my opinion, these examples only help to provide
the proverbial ‘exception to this rule’.
In these cases, the relevant national
authorities must have felt that there were good enough reasons for enacting ‘new’
Constitutions, instead of just introducing amendments to their existing
Constitutions, notwithstanding the fact that no fundamental political change of
the kind listed above, had taken place.
The
Zanzibar Constitution of 1984 is another case in point.
The Zanzibar Constitution of 1979 was indeed a new Constitution, enacted by a Constituent Assembly which had been appointed specifically for that purpose. And this Constitution properly reflected a ‘fundamental political change’, from the Revolutionary regime where all the executive, Legislative and Judicial functions had been vested in the Revolutionary Council; to a new democratic dispensation, in which there was a clear separation of these powers and functions.
The Zanzibar Constitution of 1979 was indeed a new Constitution, enacted by a Constituent Assembly which had been appointed specifically for that purpose. And this Constitution properly reflected a ‘fundamental political change’, from the Revolutionary regime where all the executive, Legislative and Judicial functions had been vested in the Revolutionary Council; to a new democratic dispensation, in which there was a clear separation of these powers and functions.
Similarly, the constitution making process
that is pending completion, namely that of making a new Constitution of the
United Republic of Tanzania; also falls squarely into this category, namely of
the relevant Authorities being satisfied that there are good enough reasons for
enacting a new Constitution, rather than just making amendments to the existing
Constitution.
But in this case, this is further justified by the fact that there have been consistent demands by the Opposition parties, and other stake holders, for the enactment of a new Union Constitution. President Jakaya Kikwete must have rightly felt that the time has come for the Government to respond positively to these demands.
But in this case, this is further justified by the fact that there have been consistent demands by the Opposition parties, and other stake holders, for the enactment of a new Union Constitution. President Jakaya Kikwete must have rightly felt that the time has come for the Government to respond positively to these demands.
In
addition, there is another relevant consideration, which is that the word
“fundamental” is subject to a variety of interpretations. Its dictionary
definition is given as “serious and very important, affecting the most central
and important parts of something”. Hence, since the ‘something’ that we are
talking about in this context, is the country’s political system; the change
from a single party, to a multi-party political system may rightly be viewed as
a ‘fundamental change’, which requires the enactment of a new Constitution. I
was personally of that view when such a change occurred in Tanzania in 1992, when
I willingly joined the chorus advocating for that to be done. I wrote the
following words in my book titled: Essays
on the Transition to Multi-partysm in
Tanzania. (Dar es Salaam
University Press, 1995):
“With this major change to
multi-party politics in Tanzania, I personally believe that the country now
needs a new Constitution, which will
accommodate the vastly changed political landscape of our country”. Furthermore, this was also the recommendation
of the Nyalali Commission, of which I was a member.
But,
understandably, the relevant Authorities felt otherwise; and the said
recommendation was rejected. “Roma locuta, causa finita”.
Other factors which influence
Constitution making processes.
We mentioned earlier in this
presentation, that there are four other factors which need to be considered in
analyzing the making of any particular Constitution, which we listed as
follows:-
(i) The
political forces which were at work when the relevant Constitution was made. (ii)
The commonsense considerations, and practical convenience underlying its
adoption;
(iii) the precedents which were
relied upon.
We will now consider the application
of these factors in our Constitution making processes, starting with the
Tanganyika Republican Constitution, the first of the ‘home made’ Constitutions.
The word “homemade” is used in this context to distinguish them from the
Tanganyika independence Constitution, which was literally “made in London”,
having been enacted by the British Parliament and only imported into the
country, to be converted into domestic law.
In relation to the Tanganyika
Republican Constitution of 1962, we have already seen that the major influence
was the change of sovereignty. The ‘Dominion’ status which had been created by
the independence Constitution was wholly incomprehensible to the majority of
the people of Tanganyika; who could not understand the rationale of the Queen
of England being the Head of State of independent Tanganyika. Thus, the
‘commonsense consideration of practical convenience’ influenced the enactment
of a new Constitution which the people of Tanganyika could understand more
easily. There was also the question of the ‘precedents’ which were relied upon.
The precedent which was followed in the case of the Tanganyika Republican
Constitution, was the Ghana Constitution of 1960. Ghana gained its independence
from Britain in 1957, under the “Dominion’ type of Constitution, with the
British Queen being also the Head of State of Ghana. But in 1960, Ghana enacted
a new Republican Constitution. The Constitution of the Republic of Tanganyika
was crafted largely along the lines of Ghana’s Republican Constitution.
The Constitution of the united Republic
of Tanzania, 1977.
The making of the Constitution of
the United Republic of Tanzania, 1977, was largely influenced by the
‘commonsense considerations and practical convenience’ offered by the
circumstances prevailing at that material time as a direct product of the merger
between TANU and ASP.
It will be remembered that the ‘Articles of Union’ had made provision
for a Constituent Assembly to be convened within one year after the
establishment of the Union between Tanganyika and Zanzibar; and also that
before the expiry of that period, the Union Parliament had passed legislation
to remove that requirement, simply because President Nyerere and President
Karume had agreed that instead f rushing into enacting a permanent
Constitution, it was more desirable and prudent, to allow sufficient time for
this Union to operate and become properly settled, in order to enable the
people, based on the experience gained from observing its operations, to
determine the kind of permanent Constitution that is most suitable.
But there is the untold part of that story,
which is that President Nyerere had sincerely hoped that given sufficient time,
it would be possible to have a Constitution which made provision for a
one-government structure of the Union, instead of the two-government structure.
However, it had already taken as many as twelve years, before the envisaged
Constituent Assembly could be appointed.
Thus, the merger between TANU and ASP (which had taken place earlier
that year), provided a very convenient opportunity for that provision of the
Articles of Union to be implemented. And so it came to pass. A constituent Assembly was duly constituted,
which enacted the Union’s permanent Constitution of 1977.
“Peoples’
participation” in Constitution making processes.
The methodology which has consistently
been used in Tanzania, for the purpose of involving the people and enabling
them to actively participate in our Constitution making processes, has
invariably been that of appointing Presidential ‘Constitutional Review
Commissions’
Constitutional review Commissions
have routinely been appointed by all the past Union Presidents whenever the
need arose, either for enacting a new Constitution, (as was done by President
Nyerere in 1962); or, whenever the need arose for introducing major amendments
to the country’s Constitution (as was done by President Ali Hassan Mwinyi in
1991, and by President Benjamin Mkapa in 1998).
These Commissions are appointed for the purpose of collecting and
coordinating the views of the people, regarding
what should be included in the Constitution; and subsequently, to make proposals for
consideration by the Constituent Assembly. But again, the 1962 exercise went through a
different process. Instead of appointing a Constitutional Review Commission,
the government prepared and published what is known as a “White Paper’, which
was titled “Proposals of the Tanganyika Government for a Republic”. The said proposals
were distributed widely throughout the country, and members of the public were
invited to submit their views on the proposals contained therein, to the Office
of the Prime Minister.
But for the next following exercise,
which was the enactment of the 1965 One-Party Constitution; President Nyerere went back to the earlier
practice, and appointed a Constitutional
Review Commission chaired
by Rashid Kawawa, which was given the usual task of collecting the views of
the people regarding the type of
one-party state Constitution was acceptable to them.
But President Nyerere went further. Because he was determined to ensure that the envisaged One-Party Constitution must create a proper democratic State. He therefore issued some “Guiding principles” to that Commission, which, he described as “the principles of democracy” and directed that they must be enshrined in the proposed Constitution. He listed them as follows: - (a) There shall be maximum political freedom for all citizens within the context of a single national movement. (b) There shall be maximum possible participation by the people in their own Government, and ultimate control by them. (c) There shall be complete freedom for the people to choose their representatives on all legislative bodies.
But President Nyerere went further. Because he was determined to ensure that the envisaged One-Party Constitution must create a proper democratic State. He therefore issued some “Guiding principles” to that Commission, which, he described as “the principles of democracy” and directed that they must be enshrined in the proposed Constitution. He listed them as follows: - (a) There shall be maximum political freedom for all citizens within the context of a single national movement. (b) There shall be maximum possible participation by the people in their own Government, and ultimate control by them. (c) There shall be complete freedom for the people to choose their representatives on all legislative bodies.
In addition, he also issued other ‘guiding
principles’ relating to the maintenance of ethics and integrity; the fundamental
equality of all human beings and the right of every individual to respect and
dignity; the right to freedom of expression, of movement, of religious belief,
and of association with others within the context of the law; subject in all
cases to the maintenance of equal freedom for all other citizens; plus the
principles of ‘good governance’ and the Rule of law.
President Nyerere’s concern and
desire for a One-Party Constitution which would strictly observe his ‘guiding
principles’; he went the extra mile and directed the inclusion into that
Constitution, of the ‘Permanent Commission of Enquiry”; out of his sincere
conviction that it was necessary to institute a constitutional check on
Government officials in the exercise of their powers and responsibilities in
the One-Part State, in order to prevent the misuse of such powers. The relevant
provision read as follows:-
“There shall be a Permanent Commission of
Enquiry, which shall have jurisdiction to enquire into the conduct of any
person in the exercise of his authority, or abuse thereof”. The Commission
was require reporting its findings to the President, who would then take action
on any reported cases of abuse of office. Many such cases were in fact
discovered and reported. And appropriate action taken. There was, for example, the case of
a student who had secured high marks in her Std Seven examinations. She was
unfairly denied admission to Secondary School, on the mere suspicion the she
might have been shown the examination questions.
She registered her complaint with the Commission which, on
investigation, found that the girl was a bight student who had consistently
scored high marks during all the years of her Primary school education; and
that she had been unfairly treated in being denied admission to Secondary
School. This was reported to the President
(President Mwinyi at that material time) who, on being satisfied after examining the facts
in that report, ordered that this student be admitted to a Government Secondary
of her own choice, as compensation for her undeserved ill treatment.
The next in line, was the permanent
Constitution of the United Republic of Tanzania 1977; for which President
Nyerere once again appointed a Constitutional Review Commission chaired by
Sheikh Thabit Kombo, Secretary-General of the Afro-Shirazi Party (ASP) of
Zanzibar. That Commission was, like all its predecessors, also tasked to
collect and coordinate the views of the people from both sides of the United
Republic, regarding what should be the contents of this permanent Constitution.
However, of much greater importance
this time, was the need to incorporate the ‘Articles of Union’ in the permanent
Constitution. This is because the Articles of Union had been designed to
operate only during “the interim period”, which was defined as “the period from
the commencement of the Union until the Constituent Assembly provided for in
article (vi) shall have met and adopted a Constitution for the United republic”,
after which the said Articles of Union would cease to have legal effect. Thus, this Constitutional Review Commission
was required to transfer the spirit of the provisions of the Acts of Union, into
the new Constitution, and in particular, the provisions of articles (iii) and
(iv) of those Articles, which made distinct provision for a separate Executive
and Legislature for Zanzibar (i.e. the two-government structure of the Union);
the representation of Zanzibar in the Parliament of the United Republic. And such
other matters as may be expedient or desirable to give effect to the United Republic”.
This requirement was duly
implemented by the Sheikh Thabit kombo Constitutional Review Commission, and the
relevant provisions were subsequently incorporated in the 1977 Constitution.
PART
TWO
THE
MAKING OF CONSTITUTIONAL AMENDMENTS.
It has been said that the
Constitution “is a living document”. No Constitution can remain permanently
static. A viable and sustainable Constitution must be sufficiently flexible, in
order to be able to accommodate any necessary amendments caused by, or
resulting from, the socio-political changes that must inevitably occur from
time to time.
‘Constitutional Amendments’ are
normally made by the regular Parliament of a country; and as such, there is
really no obligation for the intended Constitutional Amendment to go through
similar procedures as are applicable to the making of a new Constitution.
However,
for the purpose of involving the people in these processes, the Presidents of
Tanzania have routinely adopted the traditional method of appointing
Presidential Constitution Review Commissions, even for the major Constitutional
Amendments of 1984, 1992, and 1998; which were thus preceded by such Commissions,
appointed by the relevant President for that purpose; as this had become the
established mode of enabling all the people to participate in the relevant
Constitutional Review exercise.
Because
of their significant importance, plus their major impact on Tanzania’s
governance system, the relevant Constitutional Amendments are discussed below.
The 1984 Constitutional amendments.
Under the then constitutionally
recognized concept of Party Supremacy, the 1984 amendments were initiated by
the ruling party CCM, following the adoption of the CCM Guidelines in 1981. Whereupon
a CCM Constitutional Review Commission was
subsequently appointed by the National Executive Committee, and given the task of preparing appropriate proposals, which were thereafter widely circulated
throughout the country, for the people to consider and give their opinions and
comments. The discussions were coordinated at every level of the Party
structure, namely the Branch, District, and Regional levels, and finally at the
National Executive Committee level, which provided the final endorsement before
the proposals were submitted to the government for the normal legislative process
to take place.
The 1992 Constitutional amendments.
Similarly, the 1992 major
Constitutional amendments which introduced the multi-party provisions into the Constitution
were preceded by the appointment, by President Ali Hassan Mwinyi, of a
Constitutional Review Commission chaired by Chief Justice Francis Nyalali. (The
Nyalali Commission), which was mandated to collect and coordinate the views of
the people on whether or not Tanzania should abandon the one-party system of
government and introduce the multi-party system.
The 1998 amendments.
Following this established practice,
the 1998 amendments were also preceded by the appointment by President Benjamin
Mkapa, of a Constitutional Commission chaired by Judge Robert Kisanga (the Kisanga Commission), for the same purpose
of involving the people in the Constitution-making process, by giving them the
opportunity to express their views and opinions regarding the contents of the
proposed amendments
And similarly for the anticipated new
Constitution, President Kikwete also appointed a Constitutional Commission chaired
by retired Judge Joseph Warioba (the Warioba Commission) in compliance with
this established practice.
A curious paradox.
Unwittingly, ‘peoples’ participation’
in Constitution making could be mere window dressing.The
dictionary definition of the words “window dressing” as used in this context,
is given as follows: “the fact of doing or saying something in a way that
creates a good impression, but does not show the real facts”. It is therefore a curious paradox, that the good
impression created by the steps taken to promote people’s participation in the making of Constitutions through the
deployment of Presidential Commissions as described above, eventually ends up
being a mere window dressing exercise; in the sense that the desired objective is
not, in reality, actually achieved.
In Constitution making processes, the concept
of ‘people’s participation’ is normally applied at two distinct levels. The
first level is implemented when the Constitutional Review Commission visits the
people to collect their views. The
second level is implemented where and when a referendum is held, which is aimed
at giving the people the opportunity to exercise their right of giving final
approval to the proposed Constitution.
But
having been a participant myself in some of Tanzania’s Constitutional Review
exercises, my personal observation has been that, in communities such as ours,
where the level of understanding of matters of such academic sophistication as
those relating to Constitution making is relatively low; this state of affairs
tends to create a general ‘lack of interest’ in these matters among the public.
‘Constitutionalism’ is one of the
disciplines which are taught only at University level, not at the primary or
secondary levels of education. Therefore, access to such knowledge is necessarily
confined to a lucky few, who like to call themselves the “learned brothers and
sisters” (wasomi).
Credible evidence of such lack of
interest is provided by the minimal public attendance at meetings convened by
the said Presidential Commissions for that purpose. And this is fully supported
by the statics published by the Commissions themselves. For example, the Warioba Commission’s Report
provides credible evidence of the disappointingly low levels of public
participation, even in their Constitution making exercise, for it shows that
the total number of opinions received by that Commission from members of the
public in Tanzania Mainland was a paltry 684,303 and only 49,671 in Zanzibar. In my opinion, this low public participation
can only be attributed to the fact that for the vast majority of our people,
the matter of ‘Constitution making’ is really not a normal ‘bread and butter’
kind of issue, which would ordinarily promote their excitement, or to make them
hold strong views one way or the other; plus the the level of interest that
would motivate them to get fully involved in making decisions about it. It is of course true, that the ordinary citizen is also concerned
with the issue of ‘good governance’; but he largely expects such good
governance to be provided by the people in the Government which he participated
in electing to office, and with whom he in almost daily contact. But certainly not
by a mundane document called the Constitution, which he most probably has never
even seen! On the other hand, they normally get
fully involved when it comes to matters
relating to their ‘bread and butter’ needs for health care, or the availability
of clean water for domestic use, or education; that is to say, those matters
which relate directly to the needs of their daily lives. Constitution making is
obviously not among such matters.
The matter of the referendum.
The principal argument for including
a referendum in the process of Constitution making is that it facilitates the
participation of all the people who are the beneficiaries of that Constitution,
and enables them to participate in the process of its enactment. That is indeed true. However, there is an
inherent problem in administering a referendum. And this is what makes this
whole exercise appear to be a kind of ‘window dressing’. Presumably in order to easily administered,
referendums normally take the form of one single question, which must be
answered by the voter either in the affirmative, or in the negative. A possible
question in a referendum on the Constitution could red like this: “Do you agree with the proposals contained
in in this Constitutional document?
Such a question, or some variant of
it, obviously does not give the voter the opportunity to fully express his
opinion. For example, there might be some provisions therein, with which he is
in total disagreement, but he will be unable to express his disagreements. Thus, realistically, it becomes a matter of “take
it or leave it”. In which case, his participation amounts to a mere window
dressing exercise, aimed at getting the approval of the people, but for
positions already predetermined at the earlier levels of the process, by only a
few determined activists.
PART
THREE
The
making of the proposed new Constitution of the United Republic.
Kudos to President Jakaya Kikwete,
of the fourth phase Government, for his unprecedented initiative of putting in
place the process for the enactment of a new Constitution of the United Republic
of Tanzania. The making of a new
Constitution had been a matter of conflict between the ruling party (CCM), and
the Opposition parties, supported by some other stake holders. The most vocal
demand which was frequently voiced by the Opposition parties, was the demand
for the convening of a “National Constitutional Conference”, which would
determine the contents of a new multi-party Constitution. These demands were
rejected by the ruling party, and thus, no such “national Constitutional
Conference was ever convened. It may be helpful to put on record here, the reasons for CCM’s rejection
of these demands; because it was not just a matter of “the big man in power
refusing to listen to the voice of the people”.
That rejection was based on the
democratic principle, namely that of the requisite mandate; which requires that any group of persons seeking to make
decisions “on behalf of the people”, such group must have a clear mandate from
the people concerned, specifically authorizing it to make the relevant
decisions on their behalf. Such mandate can only be obtained through an
election which is held specifically for that purpose. A Constitutional Conference
such as that which was being demanded would consist only of hand-picked, or
even self-appointed, delegates, who have no mandate from the people themselves
to undertake the task of Constitution making on their behalf. It would
obviously be improper for such a group to undertake such a task. That is
precisely why he decided to adhere to the rules governing the making of new
Constitutions; and, very commendably, made certain significant innovations
amounting to a complete departure from previous practice in this respect.
For example, with regard to the appointment of members of the
Constituent Assembly, he appointed not only all the members of the existing
Union National Assembly as has been the practice in the past, he also appointed
all the existing members of the Zanzibar House of Representatives, and further
appointed an additional 201 persons, picked from all the fully registered
political parties and from civil society organizations.
But
in addition to this enlarged and more representative composition of the
Constituent Assembly, President Kikwete made two other significant innovations
in his positive departure from previous practice. These were:
The introduction of a requirement of
a referendum to be held for the ratification of the proposed Constitution by
all the people. and
The enactment of a special law to
guide the implementation of this whole exercise.
However, there was some resentment
among his fellow leaders and comrades of the ruling party, for his having
undertaken such a hugely expensive process. They would have preferred the
traditional route of making amendments to the existing Constitution, since no ‘fundamental
political change’ had occurred, to justify the making of an entirely new
Constitution.
PART
FOUR
The historical circumstances
surrounding the enactment of each of our Constitutions. It may be helpful also to
expose the historical circumstances which surrounded the enactment of each of
our Constitutions. This is done in the paragraphs which follow below.
The
Interim Constitution of the United Republic of Tanganyika and Zanzibar. 1965
The initial ‘Interim Constitution’
of the United Republic was enacted by Presidential Decree, in exercise of the
powers granted to the President by The Articles of Union. Accordingly,
President Nyerere issued a decree titled
The Interim Constitution Decree, 1964, which
was published as Government Notice No. 246 on 1 / 5 / 1964.
That
Decree made the following provisions:-
(a)That the Constitution of Tanganyika shall
be the Interim Constitution of the United Republic, suitably amended to include
provisions for the appointment of the President of Zanzibar as Vice-President
of the United Republic; and for the appointment of persons from Zanzibar to the
Union Parliament.
(b)The
two-government structure of the Union, by vesting in the President of the United republic, Executive
powers in respect of all Union matters throughout the entire United Republic, that is to say, in both Tanganyika and
Zanzibar; but also in respect all other matters (including non-Union
matters) in respect of Tanganyika. This provision is what abolished the
Government of Tanganyika, and placed Tanganyika under the direct rule of the
Union Government.
The Interim constitution of 1965.
The initial Interim Constitution of
the United Republic which had been established by Presidential Decree, was
subsequently re- enacted in 1965, which is also known as the ‘One-Party
Constitution’.
The initiative for the introduction
of a One-Party Constitution had been taken by the ruling Party (TANU) in
January 1963, when a meeting of its National Executive Committee adopted a
resolution recommending its introduction “as soon as possible”. The main motive for this resolution was to
find a solution to an apparent conflict of interest, when the political
circumstances of the time had forced Tanganyika to operate a de facto One Party system, when the
voters decided to return unopposed, a vast majority of the TANU parliamentary candidates
in both the pre-independence general elections of 1957/58, and of 1960.
This, in effect, amounted to fatal
to democracy. It is was denial of justice to the voting population, who were, by
default, disenfranchised by being unable to vote, just because their candidates
had been returned unopposed.
That is when President Nyerere
argued that “democracy would be better served if the Constitution allowed
electoral competition among candidates of the same political party”, when he
said the following: “we have to dispense with the discipline of the multi-party
system. I would even say that such discipline is not only unnecessary in our
prevailing circumstances, but that it is bound, in time, to prove fatal to
democracy. Where there is only one
political party, and that party is identified with the nation as a whole, the
foundations of democracy are even firmer than they can ever be where you have
two or more parties, each representing only a section of the community”.
This situation had, indeed, caused glaring problems especially in the
area of electoral democracy, due to the fact that the multi-party Constitution
which was in force at the material time, and the associated electoral laws,
required electoral competition to take place between different political
parties. But the prevailing political reality did not permit this to happen, as
evidenced by the outcome of the two preceding general elections held in
1957/58, and in 1960.
In both those elections, the voting
population had practically been disfranchised, by being denied the opportunity
to cast their votes due to the fact that TANU candidates had been returned
unopposed in the vast majority of constituencies.
Hence President Nyerere felt that in the interest of democracy, a
different system should be put in place, which would ensure that the voters of
Tanganyika in future elections will not be deprived of their right to select
their political leaders by actually voting for them. The
outcome of these reflections was the One-Party Constitution of 1965; which also
became the Interim Constitution of the United Republic, which was enacted by
the Parliament of the United Republic, and came into force on 9th
July, 1965.
The Constitution of the United Republic
of Tanzania, 1977.
This is the current Constitution of
our country. It was enacted on 25th April 1977, by a Constituent
Assembly which had been appointed for that purpose, and came into force on 26th
April, 1977. This had to be a new Constitution because it satisfied the requirements
for a new Constitution, since it provided for a merger of two sovereign states
into one new sovereign state, which therefore required a new Constitution.
The historical circumstances surrounding
its adoption.
The interim period of one year
during which the interim was designed to operate, was due to expire on 26th
April 1965. However, it was subsequently
decided to extend this interim period. Thus in March 1965 (one month before the
expiry of the prescribed year), the Parliament of the United Republic enacted a
law to extend the interim period to such future date as shall be determined by the two Principals of the Union,
namely the President of the United
Republic in consultation with the President of Zanzibar. With regard to this extension of time,
President Nyerere explained that he, and President Karume, had agreed that
instead of rushing into enacting a permanent Constitution for the new Union
within only one year of its formation,
it would be more prudent to allow sufficient time for this Union to operate and get settled properly,
in order to enable its people, based on the experience gained from observing
its operations, to determine the kind of permanent Constitution which would be
most suitable for the new country and nation. But there is an untold part of
that story, which is that President Nyerere (who had initially opposed the
introduction of a one-government structure for the Union, because of his fear
that the ‘enemies’ of this Union would accuse him of having ‘swallowed’
Zanzibar), was personally expecting that given sufficient time, the fear of
Zanzibar being ‘swallowed’ would disappear, which would thus make it possible
for the permanent Constitution to make provision for a one-government structure
of the Union.
However, it took
another twelve years before the .envisaged Constituent Assembly was eventually appointed
for the purpose of making proposals for a permanent Constitution. The
opportunity for the taking of this action was offered by the merger of the two ruling
parties (TANU of Tanzania Mainland and ASP of Zanzibar), in February 1977, for
it was soon thereafter that the long awaited Constituent Assembly was
appointed.
The
said Assembly was able to complete its task very quickly, actually in only one
short session of three hours; which enabled the new Constitution to come into
force on 26 April 1977, the 13th anniversary of the
Union.
The speed with which the Constituent
Assembly was able to work was facilitated by the one-party system of
government, whereby all major issues of governance were discussed and decided
by the National Executive Committee of the Party. This state of affairs was confirmed by Prime
Minister Edward Sokoine in his speech introducing the draft Constitution in the
Constituent Assembly, who said the following:
“This Constituent Assembly is at liberty
to either to accept or to reject these proposals. But, Mr Speaker, in exercising
that liberty, we ought to be conscious of its limitations. The proposals we are
about to debate are the outcome of the Party’s decisions regarding this matter.
We Tanzanians, in our abundant wisdom, have determined without hesitation that
the Party shall be the ultimate authority in our country. It means therefore
that the Constituent Assembly is empowered to reject or amend these proposals, only if it feels that they are in
contravention of, or in conflict with Party policies If however,
these proposals are seen as
correctly implementing such policies, as indeed is the case, I humbly beg the Assembly to accept them
without even a moment’s hesitation”. As would be expected, in view of the then prevailing
doctrine of “Party Supremacy”, the Constituent Assembly rapidly adopted the
proposals which were submitted to them.
The Constitution of Zanzibar, 1979.
The 1979 Constitution of Zanzibar
was enacted on 12th February, 1979, by a Constituent Assembly which
had been appointed specifically for that purpose. This was a new Constitution
because it was enacted in response to a shift of political power from a
Revolutionary regime to a new democratic dispensation. It was in fact the first
Constitution of Zanzibar to be enacted after the 1964 Revolution had abrogated
the Zanzibar Independence Constitution of 1963.
Although Presidential Decree no 5 of
1964 had served well as a basis for the governance of the Zanzibar State, it
was really not a Constitution in the conventional sense of that word.
The historical circumstances surrounding
its adoption.
The Zanzibar Constitution of 1979
resulted from the personal efforts and initiatives of the then President of
Zanzibar, Mr. Aboud Jumbe, who became President of Zanzibar following the
assassination of President Abeid Karume in April 1972.
We
have already referred to the merger between TANU and ASP, an event which
created the Chama cha Mapinduzi (CCM). President
Jumbe had responded positively to President Nyerere’s proposal in 1975 for this
merger, and had actively participated in the process of securing the approval
of the ASP to the proposed merger with TANU. When that was achieved in February 1977,
President Jumbe redirected his energies to the democratization of Zanzibar’s
institutions of government. Under the provisions
of the ‘Constitutional Government and Rule of Law Decree’ of 1964, the Zanzibar
Revolutionary Council was both the Executive as well as the Legislature for
Zanzibar. President Jumbe seems to have
been dissatisfied with this state of affairs, so he stared working on a project to introduce a
proper Constitution which makes the traditional
provisions for the separation of powers and functions between the two
arms of Government, namely the Executive and the Legislature. The enactment of
the Zanzibar Constitution of 1979 was the culmination of his supreme efforts.
The most important features of the 1979
Constitution of Zanzibar were that it established the Zanzibar House of
Representatives, whose members were to be elected by the people of Zanzibar
from constituencies established for that purpose. It also made provision for
the election of the President of Zanzibar by the people of Zanzibar; and it established
other relevant institutions required for the democratic governance of Zanzibar.
The Constitution of Zanzibar, 1984.
On the basis of the list given above,
of the circumstances which necessitate the making of a new Constitution, the
Constitution of Zanzibar of 1984 does not readily qualify for the designation
of a new Constitution. However, as will
be explained below, the Zanzibar Authorities had a good reason for deciding to
make it a new Constitution.
The historical circumstances surrounding
its adoption.
The 1984 Zanzibar Constitution was a
product of some major policy review which was undertaken by the National
Executive Committee of Chama cha Mapinduzi (CCM) in 1981. The principal objective
of this review was to identify suitable ways and means of consolidating
democracy within the One-Party system, which was in operation at that
time. This review exercise inevitably
included a review of the 1977 Constitution of the United Republic, as well as
the 1979 Constitution of Zanzibar, with a view to identifying areas which
needed reform or improvement.
Many important decisions were made
in respect of these matters, which included the limiting of the President’s
period of service to a maximum of only two five-year terms; the reduction of
the President’s powers of appointment of public officers to a much smaller
number; the introduction of special seats for women representatives in
Parliament and in the House of Representatives, and the introduction of Local
Government Authorities at the District and the Village levels.
Consequently, the Constitutions of
the United Republic, and of Zanzibar, were accordingly amended; in order to
incorporate these major decisions, and to make other consequential provision in
relation thereto.
The 2010 Zanzibar Constitution.
It is worth noting that in 2010, the
Zanzibar House of Representatives introduced some major changes in their 1984
Constitution, including the introduction of new provisions which seemingly
appear to have made Zanzibar a de facto sovereign
state. Yet these major changes were not considered to be a good reason to justify
the promulgation of a new Constitution. Hence Zanzibar continues to be governed
by its 1984 Constitution, as amended in 2010.
PART
THREE.
THE
HISTORY OF CONSTITUTIONAL AMENDMENTS.
As of now, there have been a total
of fourteen amendments made to the Constitution of the United Republic since
its enactment on 25th April 1977.
Most
of them were consequential amendments resulting from the occurrence of events
elsewhere, which had necessitated the making of such amendments. But there were others which can be considered
as major amendments, because they substantially altered the fabric of the existing
Constitution. The details of both types
of amendments are given below.
1. The
consequential amendments.
In some cases, appropriate
amendments had to be made to the Constitution as a result of the occurrence of
certain external events. But in other cases, certain other amendments were also
made as a result of internal causes, mostly arising from Court decisions.
(a)
Amendments caused by external factors.
One such event was the break-up of the
East African Currency Board. As a result of this occurrence, amendments had to
be made to the Constitution in order to add the relevant matters to the list of
‘Union matters’ which appears in the First Schedule to the Constitution. These
were “all matters concerning coinage, currency, banks and all banking business,
foreign exchange and exchange control”. This was done through amendments made
by Parliament on 10th June 1965.
Similarly, as a result of the
break-up of the former East African Community in 1967, the East African Court of
Appeal ceased to exist, it therefore became necessary to establish its
replacement in Tanzania, namely the Court of Appeal of Tanzania. It was also
necessary to transfer all the other matters which had been the responsibility
of the Community back to the respective partner states. This necessitated the
making of appropriate amendments to the Constitution, in order to add these
matters to the list of “Union matters’.
(b) Amendments caused by internal factors.
However, there were certain other internal
events which also necessitated the making of amendments to the Constitution.
One such event was the High Court
decision in the case of Attorney-General
v Lesinoi Ndeinai &Joseph Selayo
Laizer and two others.
This case arose from action taken by
the Vice-President Aboud Jumbe of the United Republic, who signed a detention order
for the preventive detention of certain persons. This was done during the
temporary absence of President Nyerere from the country. It had been assumed by
the Vice-President’s advisers that the President’s powers were automatically
delegated to the Vice-President when the President was absent from the country.
However, In
his judgement, Judge Mwesiumo had ruled as follows:
“I do
not think that the Legislature intended the Constitution to operate so simply
and automatically . . . Delegation of powers by the President must be done in
writing, and the said written delegation should specify which of the powers exercisable
by the President are being delegated to the person named in written delegation”
He therefore ruled that the detention
order was unlawful.
However
upon appeal, Judge Mwesiumo was overruled by the Court of Appeal of Tanzania,
which held that “when the President is
absent from Tanzania, the functions of the Office of the President are
automatically conferred on the Vice-president”.
In order to avoid such conflicting
interpretations of the Constitution by the Courts in future, appropriate
amendments were made to the Constitution in order to introduce clear provisions
for this automatic delegation of the President’s powers and functions during
his absence from the country, or for other causes leading to his inability to
carry out his statutory duties and functions.
2.
The major Constitutional Amendments.
Four particular amendments can be
placed in this category of major Constitutional Amendments. These are:
(1) The1984 amendments (the Fifth
Amendment)
(2) The 1992 amendments (the Eighth
Amendment)
(3) The 1994 amendments (the
eleventh Amendment)
(4) The 2000 amendments (the
Eleventh Amendment).
2.1
The 1984 Amendments (The Fifth Amendment).
We have already referred to the
genesis of the 1984 Constitution of Zanzibar. And also that with regard to the Union
Constitution, it was decided not to make a new Constitution, but to introduce
amendments to the existing Constitution
These amendments were cited as the Fourth
Amendments to the Constitution.
The
far-reaching constitutional reform decisions made by the CCM National Executive
Committee were based on its policy document titled “The CCM Guidelines, 1981”. After the publication of these guidelines, the
Party embarked on the exercise of reforming the Constitution in order to
accommodate the new policy decisions outlined in the said guidelines. The Party National Executive Committee even
prepared certain specific proposals for the amendment of the Constitution,
which were widely circulated for consideration by all the people. A special committee
was appointed and mandated to seek and coordinate the views of the general
public on these proposals. The relevant discussions were coordinated at every
level of the Party structure, starting with the Party Branches. Eventually, the
refined proposals were submitted to the two governments for the normal
legislative process to take place.
The end products of this process were
(a) the Fifth Amendments to the Constitution of the United Republic, and (b)
the new Constitution of Zanzibar, 1984.
2.2
The 1992 Amendments (the Eighth Amendment).
The
re-introduction of the multi-party system.
Again because of the political
forces at work during that time, the most salient feature of the 1992
Constitutional Amendments was the re-introduction of the multi-party system of
government.
It all started at a meeting of the
CCM National Executive Committee held in February 1990, which made the bold
decision which reads as follows:
“Judging
from the circumstances of the global political environment, a change to
multi-party politics is inevitable and cannot be avoided”.
Consequently, the process of
implementing that resolution started immediately. President Ali Hassan Mwinyi was
mandated to appoint a Presidential Commission which would seek and coordinate
the views of the general public on this matter of re-introducing the
multi-party political system.
The Nyalali Commission was quickly
appointed, which subsequently recommended the return to the multi-party system.
This landmark recommendation was accepted, and new provisions were accordingly
introduced in the Constitution. The amended Constitution came into force on 1st
July, 1992.
The salient features of the Eighth Amendments
were the following:
They made provisions for the
registration of political parties, and prescribed
the terms, conditions and procedures for such registration,
They made provision for the
appointment of an independent Registrar of Political Parties, and imposed a
duty on all such parties (including CCM) to apply to the Registrar for
registration.
They made provision for a minimum
number (15%) of Women’s Special seats in Parliament, who were to be appointed
by their respective political parties based on a proportional representation
system.
They maintained the restriction on
the participation of private candidates in elections, and imposed a requirement
for all candidates for election to be sponsored by a political party.
2.3
The 1994 amendments (the Eleventh Amendment)
The Eleventh Amendment can at best
be described as merely introducing consequential amendments. As a result of the
major amendments which had been introduced by the Eighth Amendment, namely the
re-introduction of multi-party politics in the country.
The main features of these
amendments were that:-
( i) The President of Zanzibar
ceased to be automatic Vice-President of the United Republic,
(ii) A new system was introduced of
electing the Vice-President, by adopting the American system of ‘running-mate’,
under which both the President and the Vice-President are elected together.
The
circumstances surrounding their enactment.
The Articles of Union had made
provision for the President of Zanzibar to also be Vice-President of the United
Republic. This had worked well during the One-Party system of government. But the introduction of multi-party politics
crated a distinct possibility that the President of Zanzibar and the President
of the United Republic could come from different political parties. Thus, if
this automatic provision remained in the Constitution, the union government
would, by command of the Constitution, become a coalition government of the
different political parties of the President and the Vice President
respectively.
A
coalition government imposed by the Constitution was considered to be
undesirable, because coalition governments are normally formed as a result of
negotiations leading to agreement between the parties who wish to enter into
such coalition arrangements. This is actually what subsequently happened when
an agreement was reached between CCM to form a government of National Unity in
Zanzibar after the 2010 General elections.
Therefore in order to avoid a
coalition government which is forced upon political parties by command of the
Constitution, a formula had to be found which would ensure that both the
President of the United Republic, and the President of Zanzibar, would both
come from the same political party. That is when the American running-mate electoral
system was introduced. But in order not to leave the President of Zanzibar
totally out of the Union structure, provision was also made for the Zanzibar
President to be a member of the Union cabinet.
The
2000 Amendments (The Thirteenth Amendment).
Much like the Eleventh Amendment,
the Thirteenth Amendment also properly belongs to the category of consequential
amendments, for it did not introduce any provisions relating to any major
policy changes.
But it qualifies to be discussed
together with the major amendments because of on significant reason, namely
that whereas those other consequential amendments were not preceded by the
appointment of a Presidential Commission to collect and coordinate the peoples’
views on the relevant proposals; the Thirteenth Amendment was subjected to this
process. In 1998, President Benjamin Mkapa had appointed a Presidential
Commission for precisely that purpose,
under the chairmanship of Judge Robert Kisanga (the Kisanga Commission).
President Mkapa had probably
anticipated that many people would want to propose major changes to the 1977
Constitution, in view of repeated demands, mainly from the opposition political
parties, for changes to be made in certain specific areas of the Constitution.
The areas which were most frequently mentioned included the following:-
The
two-government structure of the Union,
The
extensive powers of the President
The
requirement for an absolute majority wins in Presidential elections.
The
prohibition on the participation of private candidates in elections.
The
introduction of the Proportional Representation (PR) system in elections.
Giving
the voters power to re-call their members MPs who fail to deliver.
The
demand for an independent Electoral Commission
The
salient features of the Thirteenth Amendment were the following:-
They made provision for the
President to be elected on a simple majority of all the valid votes cast,
instead of an absolute majority of more than 50% of such votes.
They made provision for a
progressive increase in the percentage of women’s reserved seats in Parliament,
starting from 30%.
They established the Human Rights
and Good Governance Commission which has the dual mandate of a Human Rights
Commission, as well as an Ombundsman.
The majority of these demands were
rejected by the majority of the people in their views presented to the Kisanga
Commission.
For
example, with regard to the issue of the structure of the Union; the Kisanga
Commission of sixteen members, with three members dissenting, recommended the
introduction of a three-government structure.
But on the basis of the statistics provided by the Commission itself,
the vast majority of the respondents had rejected this structure and opted to
retain the two-government structure.
The
Commission’s published statistics disclose the following results:-
In
Zanzibar, a total of 22,874 persons
contributed to the debate on this particular matter, of whom 41 persons (0.18%) had recommended a one-government
structure; while 22,017 persons (96.25%) had recommended the retention of a
two-government structure; while only 797 persons (3.48%) had recommended a three-government structure.
In
Mainland Tanzania, a total of 43,231 persons discussed this matter, of whom 4,285
persons ((9.91%%) recommended a one-government structure; while 36,733 persons (84.97%) had opted for the
retention of a two-government structure; and only 2,855 (4.32%) persons had recommended
a three-government structure.
APPENDIX
THE ARTICLES OF UNION
Between
THE REPUBLIC OF TANGANYIKA
And
THE PEOPLES’ REPUBLIC OF ZANZIBAR
WHEREAS the Governments of the
Republic of Tanganyika and of the People’s Republic of Zanzibar, being mindful
of a long association of the peoples of these lands and of their ties of
kinship and amity, and being desirous of furthering that association and
strengthening of these ties, and of furthering the unity of African peoples,
have met and considered the union of the Republic of Tanganyika with the
Peoples’ Republic of Zanzibar:
AND WHEREAS the Governments of the
Republic of Tanganyika and of the Peoples’ Republic of Zanzibar are desirous
that the two Republics shall be united in one Sovereign Republic in accordance
with the Articles hereinafter contained:
It is therefore AGREED between the
Government of the Republic of Tanganyika and of the Peoples’ Republic of
Zanzibar as follows:
The Republic of Tanganyika and the
Peoples’ Republic of Zanzibar shall be united in one Sovereign Republic.
During the period from the
commencement of the union until the Constituent Assembly provided for in
Article (vii) shall have met and adopted a Constitution for the United Republic
(hereinafter referred to as the interim period), the United Republic shall be
governed in accordance with the provisions of Articles (iii) to (vi).
During
the interim period the Constitution of the United Republic shall be the of Tanganyika so
modified as to provide for –
a separate Executive and Legislature
in and for Zanzibar from time to time constituted in accordance with the
existing laws of Zanzibar and having exclusive authority within Zanzibar for
matters other than those reserved to the Parliament and Executive of the United
Republic; the offices of two Vice-Presidents, one of whom (being a person
normally resident in Zanzibar) shall be the Head of the aforesaid Executive in
and for Zanzibar, and shall be the
principal assistant of the President of the United Republic in the discharge of
his executive functions in relation to Zanzibar.
(c) The representation of Zanzibar
in the Parliament of the United Republic.
(d) Such other matters as may be
expedient or desirable to give effect to the United Republic and to these
Articles.
There
shall be reserved to the Parliament and Executive of the United Republic the
following matters –
The Constitution and Government of
the United Republic;
External
Affairs;
Defense;
Police;
Emergency Powers;
Citizenship;
Immigration;
External Trade and Borrowing;
The public Service of the United Republic;
Income Tax, Corporation Tax, Customs
and Excise; and
Harbors,
Civil Aviation, Posts and Telegraphs.
And the said Parliament and
Executive shall have exclusive authority in such matters throughout and for the
purposes of the United Republic, and in addition, exclusive authority in
respect of all other matters in and for Tanganyika.
The existing laws of Tanganyika and
Zanzibar shall remain in force in their respective territories subject:-
to any provision made hereafter by a competent
Legislature;
to such provision as may be made by order of
the President of the United Republic for the extension to Zanzibar of any law
relating to any of the matters set out in Article (iv), and the revocation of
any corresponding law of Zanzibar;
To such amendments as may be
expedient or desirable to give effect to the Union and to these Articles.
(a) The first President of the
United Republic shall be Mwalimu Julius K. Nyerere, and shall carry on the
Government of the United Republic in accordance with the provisions of these
Articles and with the assistance of the Vice-President aforesaid and of such
other ministers and officers as he may appoint from Tanganyika and Zanzibar and
their respective public services.
The President of the United Republic
in agreement with the Vice-President who is Head of the Executive in Zanzibar
shall:-
Appoint a Commission to make
proposals for a Constitution of the United Republic.
Summon a Constituent Assembly composed of
representatives from Tanganyika and from Zanzibar in such numbers as they may
determine, to meet within one year of the commencement of the Union for the
purpose of considering the proposals of the Commission aforesaid, and to adopt
a Constitution for the United Republic.
These Articles shall be subject to
the enactment of laws by the Parliament of Tanganyika and by the Revolutionary
Council of the Peoples’ Republic of Zanzibar in conjunction with the Cabinet of
Ministers thereof, ratifying the same and providing for the Government of the
United Republic and of Zanzibar in accordance therewith.
IN WITNESS WHEREOF Julius K. Nyerere, the President of the
Republic of Tanganyika and Abeid Karume, the President of the Peoples’ Republic
of Zanzibar, have signed these Articles in Zanzibar, on this twenty second day
of April,1064.
Source: Cde Pius Msekwa
Source: Cde Pius Msekwa
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