Constitution – making is normally supposed to be a purely civilian exercise through which citizens are expected to effectively exercise and make use of their fundamental democratic right to self determination. Participation in the process is the right of every citizen. The main actors in constitution – making are the people themselves. The whole process will be futile and just a sham if it is monopolized or hijacked by any person or a group of persons. Government, political parties, civil societies and private individuals have their roles to play in the process of constitutional review. During the debates for constitutional making or review, differences of opinions may become obvious but they should be settled by a democratic method of discussion, criticism, persuasion and education, and not by method of coercion or repression.
Presented at a public lecture organized by Ford Foundation and Zanzibar Legal Services Centre at Eacrotanal Hall Zanzibar on 13th June 2012. By Ibrahim Mzee Ibrahim (DPP)
1.1 The United Republic of Tanzania is now forty eight years old. The union has been a subject matter of discussion and debates and has attracted both praises and criticisms. In this paper, we intend to discuss the union in the context of the current discourse on the constitutional review in the country. Our main focus will be on milestones in the history of the union constitution, the process of constitutional review under the Constitutional Review Act (Cap 83 of the Laws, Revised Edition of 2012), major issues that are likely to be the crux of the present constitutional review debates, and actors and philosophical underpinning for constitutional review.
1.2 There is a divergence of views and interpretations relating to the motive for the union. In the first place, proponents of African unity view the union as a first step towards African cooperation, unity and Pan-Africanism in general. Secondly, western writers have documented that the union was a product of neo-colonial politics of the cold war by super powers (USA and USSR) in the 1960’s. Thirdly, the union has also been perceived as a result of political expediency and pragmatic considerations of the main political actors in Tanganyika and Zanzibar. Fourthly, the union has been cited by some people as an attempt of one African country to swallow and colonize another African country.
1.3 To some legal scholars, the union has raised some complex questions with no available answers. Professor Srivastava has called them “Riddles” whereas Honourable Othman Masoud Othman described them as “Questions without Answers in the Union”. While legal scholars were wondering about the complex questions in the union, the Revolutionary Government of Zanzibar realized that there were two categories of the specific problems of the union: (i) Problem of the system and lack of transparency. (ii) Constitutional problems.
2.0 Milestones in the History of the Union Constitution
2.1 Constitution can be broadly defined as “a framework of rules defining the functions, composition and inter – relationships of the institutions of government, and the rights and duties of the governed. These rules describe the location, distribution, exercise and limitation of political power among the instruments of the state…”. If we take this definition to be correct and apply the same to the union of Tanganyika and Zanzibar it can be confidently asserted that the bedrock of the union constitution is to be found in the Articles of the Union that were signed by two presidents on the 22nd of April 1964 and supposedly ratified by two respective legislatures and added as schedules to the respective union laws (Acts of the Union). According to Professor Shivji, “the Acts of Union are a constitutional instrument”
2.2 The first union constitution therefore was the Constitution of Tanganyika as modified by Presidential Decrees by virtue of the powers vested in the President of the United Republic under the Articles and Acts of the Union. Simply, the President made the constitution.
2.3 The appointment of a Constitutional Commission and a summoning of a Constituent Assembly were delayed for unknown reasons. That was contrary to the contemplation of the Articles and Acts of the Union. By using its powers of amending the constitution the ordinary Parliament of Tanzania passed the Interim Constitution through Act No. 43 of 1965. Under the Interim Constitution of 1965 Tanzania became a one – party state; that decision had been made by the National Executive Committee (NEC) of TANU; the TANU Constitution was made a schedule to the 1965 Interim Constitution. Professor Chris Maina Peter in one of his writings commented that “It is not clear why then it was decided to append the Constitution of one party only – TANU and exclude that of ASP while in fact the two parties existed simultaneously in the country”. The 1965 Interim Constitution survived for twelve years.
2.4 The permanent constitution was adopted in 1977. Legally, the provisions of the Articles and Acts of the Union were technically followed because the Constitutional Commission was appointed and the Constituent Assembly was summoned. However, from the point of view of political legitimacy it is questionable. The twenty members (ten from each part of the union) of the Constitutional Commission were appointed on the 16th of March 1977 and they were gazetted on the 25th of March 1977 through Government Notice No. 38. The appointed members of the Constitutional Commission are the same ones who constituted the committee for the merger of TANU and ASP and the birth of CCM. Again, on the same 16th of March 1977 the President of the United Republic of Tanzania, through Government Notice No. 39 published on the 25th of March 1977, appointed members of the existing parliament to become members of the Constituent Assembly that would meet on the 25th of April 1977. The Bill for the new constitution was published on the 18th of April 1977 and when the Constituent Assembly met a week later it was adopted in less than three hours. Total membership of the Constituent Assembly was 207, out of them only 45 were from Zanzibar. Hence the members from Zanzibar were more or less one – fifth of the total membership in the Constituent Assembly.
2.5 The 1977 Constitution has been in force for 35 years now and it has been amended fourteen times. In relation to the constitutional amendments it can be remembered that the heated debates on the union took place in 1983 when NEC of CCM presented proposals for amendments to the Constitution of the United Republic of Tanzania which included the famous Part IV of the NEC proposals on the Consolidation of the Union. Honourable Juma Abdalla Machano, a member of the House of Representatives moved a private motion in the House of Representatives to remind the party (CCM) that any amendments that were to be made in the Union Constitution had to guarantee and respect Zanzibar’s autonomy. Furthermore, opinions were expressed through the media by someone under the pseudo name “Kiroboto” advocating for a federation of three governments. Also, Aboud Jumbe’s letter that was surreptitiously stolen from Zanzibar State House and sent to President Nyerere advocated a federation of three governments. Moreover, Wolfgang Dourado’s paper which we have already cited hereinabove that was presented to the Tanganyika Law Society seminar did also question the legality and legitimacy of the union and it advocated a federation of three governments as well. The 1983 constitutional debates led to the so-called pollution of political atmosphere and the early resignation of Honorable Aboud Jumbe in January 1984 from Zanzibar presidency and CCM vice-chairmanship. After the re-introduction of multi-party politics in the mid 1990’s another amendment which aroused a lot of discussions in Zanzibar was the separation of the Zanzibar presidency from the Vice-presidency of Tanzania. On the other hand, in Tanzania Mainland there was a landmark move of Members of Parliament popularly known as G 55 which demanded a creation of a Government of Tanganyika so as to have a federal set up of three governments.
2.6 There are different opinions as regards the status of the Articles and Acts of the Union after the adoption of the 1977 Constitution. Professor Shivji, for instance, is of the view that they still constitute Grundnorm of the union from which all other norms and rules pertaining to the union derive their legal authority and validity and in case of conflict they prevail over the 1977 Constitution. Others, for example Samuel Sitta, have the opinion that Articles and Acts of the Union are spent and it is the 1977 Constitution that prevails.
3.0 The Process of Constitutional Review under the Constitutional Review Act
3.1 The Act No. 8 of 2011 as amended by the Act No. 2 of 2012 provides the scheme of the current constitutional review process. It includes, among other things, the appointment of a Constitutional Commission and its secretariat, terms of reference for the commission, a mechanism for the public to express their opinions on new constitution, drafting of a new constitution and preparation of report of the commission, a mechanism for scrutiny of a Draft Constitution Bill, appointment of a Constituent Assembly and its secretariat, and the validation of a newly proposed constitution by referendum.
3.2 The Constitutional Review Act was passed by the Parliament by using its legislative capacity as an ordinary law under Article 64 of the 1977 Constitution. It was not passed by using Parliament’s constituent capacity under Article 98 of the 1977 Constitution because it did not amend any provision of the existing 1977 Constitution. The 1977 Constitution does not provide for procedure of adopting a new constitution, it only entails procedure for amending the existing 1977 Constitution. The question may be raised that is it jurisprudentially sound for a legislature to enact an ordinary law providing the adoption of a new constitution and the abolition of the current one?
3.3 There has been a progressive step in the modality of appointing the members of the Constitutional Commission. Members of civil societies and the public at large had the opportunity for the first time at least to propose names of persons whom they thought suitable.
3.4 Functions of the Constitutional Commission are listed in sub-section 9 (1) of the Constitutional Review Act as to: (a) co-ordinate and collect public opinions; (b) examine and analyse the consistency and compatibility of the constitutional provisions in relation to the sovereignty of the people, political systems, democracy, rule of law and good governance; (c) make recommendation on each term of reference; and (d) prepare and submit a report. In my opinion, paragraph (b) is vague and ambiguous. It is not clear which constitutional provisions shall be examined: constitutional provisions of the existing 1977 Constitution or constitutional provisions of the newly proposed constitution or any constitutional provisions in general at a theoretical level? However, if we read the Kiswahili version, which is also authentic according to sub-section 38 (4) of the same Act, the likely interpretation in my view is the third alternative indicated above. We are not quite sure the Constitutional Commission will adopt which interpretation. Apart from the general functions specified in section 9, the detailed functions of the Commission have been provided under section 17 of the Act.
3.5 Under sub-section 9 (2) the Commission is required to adhere to national values and ethos and to safeguard and promote, inter alia, the existence of the United Republic and the existence of Revolutionary Government of Zanzibar. As regards the existence of Revolutionary Government of Zanzibar there is a backing in the 1984 Zanzibar Constitution. Section 26 (1) of the 1984 Zanzibar Constitution provides that “Kutakuwa na Rais wa Zanzibar ambaye atakuwa Mkuu wa Nchi ya Zanzibar, Kiongozi Mkuu wa Serikali ya Mapinduzi na Mwenyekiti wa Baraza la Mapinduzi”. Section 80A (2) (d) of the 1984 Zanzibar Constitution has entrenched the above cited section 26 of the same constitution that it can not be amended even by the House of Representatives without prior referendum. Therefore, the Constitutional Review Act was legally correct to invoke safeguards and promotion of the existence of Revolutionary Government of Zanzibar. Regarding the existence of the United Republic, we find similar support in neither the 1977 Union Constitution nor the 1984 Zanzibar Constitution. On the contrary, the 1977 Union Constitution provides that among the matters that can be voted by two-thirds majority of each part of the union is the existence of United Republic. In these circumstances, it can be submitted that the safeguard imposed by the Constitutional Review Act relating to the existence of United Republic is at best unnecessary and at worst unconstitutional.
3.6 History repeats itself. The composition of the Constituent Assembly is almost identical to the one that adopted the 1977 Tanzania Constitution except for two things: First, the Constituent Assembly this time includes all 82 members of the House of Representatives of Zanzibar (in 1977 there was no House of Representatives in Zanzibar, the House was established in 1980). Second, the Constituent Assembly also this time involves one hundred and sixty six presidential appointees from civil society (at least one-third from Zanzibar) . The commonalities between the 1977 Constituent Assembly and the coming Constituent Assembly are the followings: Both are appointed by the President and they are not directly elected for constitution – making. There is no equal number of members in the Constituent Assembly between two parts of the Union, the only safeguard is that provisions of the proposed Constitution shall be passed by two third majority of Members from Tanzania Mainland and two third majority of Members from Zanzibar. It is strange that equality between nations is ignored within two mutual partners of the union of Tanzania but it is highly respected and preserved in the Partner States of EAC. Out of approximately 600 members of the Constituent Assembly, members from Zanzibar will be more or less one third of the total membership. In 1977 members from Zanzibar were more or less one-fifth of the total membership. Again, in 1977 and in the current constitutional review processes equality in number of members was and is observed in the creation of the Constitutional Commission for preparation of drafts but it is not adhered to with regard to the composition of the Constituent Assembly which passes the proposed Constitution. The Chairman of the Constituent Assembly is elected amongst its members by simple majority. Who are the majority in the Constituent Assembly? Definitely, members from Tanzania Mainland, but as usual, don’t worry, the vice chairman must be from the other part of the United Republic.
3.7 Section 21 of the Constitutional Review Act creates offences and punishments. It is an offence to obstruct, hinder or prevent any member of the Commission or Secretariat from performing their functions, or to obstruct, hinder or prevent any person or group from giving public opinion to the Commission. Also, inciting for any those activities is an offence. Impersonation to be a member of the Commission or Secretariat is also an offence. As well, carrying on activity of coordinating and collecting public opinion contrary to this Act or conducting awareness programme on constitutional review contrary to this Act are offences created by the Act. The line of demarcation between the constitutional right of freedom of expression and the limitation posed by the Act must be clearly drawn and observed, otherwise, the Act may be impugned for unconstitutionality. The requirement of notification to the Commission or other public authorities before conducting any public awareness programme for constitutional review under section 17 of the Act can be a source of problem and encumbrance for civil societies and individuals who may wish to conduct such programmes.
4.8 The requirement that the proposed Constitution must be submitted for referendum is a great step forward towards greater democratization in the country. Zanzibar has a law which provides for referendum but Tanzania Mainland has not. Whether the Parliament of Tanzania is going to enact a referendum law for Tanzania Mainland only or for the whole of Tanzania remains to be decided.
4.0 Major Issues for Debate
4.1 First of all, it seems that the debate on the structure of the union will occupy a great part of peoples time in the processes of constitutional review. Should the country continue with the two government system and its uniqueness? Whether the country should or should not adopt a unitary government, federation or confederation. But, the gist of the issue is the demand for equal distribution of powers between two parts of the union and the demand for devolution of powers from central government to local governments.
4.2 Presidential system with the highest degree of separation of powers versus parliamentary system with some fusion of powers between legislature and executive. Should ministers continue to be appointed from among the members of legislature?
4.3 Whether the enormous powers of the President of the United Republic should be retained or reduced. The so-called imperial presidency can be an important subject of discussion.
4.4 The idea of rotation of the United Republic Presidency between two parts of the Union can also be argued. On the other hand, there may be a debate on whether the President is to be elected by simple majority or by obtaining more than fifty percent of valid votes.
4.5 The role and status of the President of Zanzibar in the union.
4.6 A list of union matters is likely to be re – negotiated. Even the formula for adding new items or subtracting items that are no longer required can be a subject matter for debate.
4.7 There is likelihood that the representation of Zanzibar in the union cabinet which makes policy decisions on union matters will be examined. The discussion may reconsider the number, scope, and role of Zanzibaris in the union cabinet.
4.8 The structure and composition of Parliament may lead to an interesting debate. There are some people who have started talking of a bicameral parliament. Also, at least for Zanzibar there has been a serious demand for equal representation of two parts of the union in Parliament.
4.9 Civil service of the United Republic of Tanzania and how people from both parts of the union can equally make use of the available employment opportunities in the union government. Also, the right of Zanzibaris to be appointed to take leadership posts in the union institutions such as National Electoral Commission, Secretariat of the Union Cabinet, Secretariat of the National Assembly.
4.10 Revenue, expenditure, grants, loans and Joint Account of the Union can also be a central focus of public opinions. Majority of people in Zanzibar are not comfortable with the 4.5% share given to Zanzibar as regards grants and loans.
4.11 The proposals for reforms in the electoral system may come up, e.g. first past the post versus proportional representation, necessity or redundancy of special seats for women, term limit for Members of Parliament, the right of the constituents to recall their MP before the expiry of his or her term, a possibility of having private candidates, and continuation of membership in Parliament despite expulsion from a political party.
4.12 Women’s rights, gender issues, and rights of people with special needs and human rights issues in general are likely also to be the focus of discussion.
4.13 The procedure for dealing with non union matters for Zanzibar in the international organizations can also be among key issues for discussion.
5.0 Actors and Philosophical Underpinning
5.1 Constitution – making is normally supposed to be a purely civilian exercise through which citizens are expected to effectively exercise and make use of their fundamental democratic right to self determination. Participation in the process is the right of every citizen. The main actors in constitution – making are the people themselves. The whole process will be futile and just a sham if it is monopolized or hijacked by any person or a group of persons. Government, political parties, civil societies and private individuals have their roles to play in the process of constitutional review. During the debates for constitutional making or review, differences of opinions may become obvious but they should be settled by a democratic method of discussion, criticism, persuasion and education, and not by method of coercion or repression.
5.2 In modern times, political powers are no longer justified by charisma or traditions but by legal rational rules. Since constitution is a power map of a state, its justification and legitimacy must base on legal rational rules of today’s politics, namely, democracy and justice. The constitutional review process and its new proposed constitution are therefore expected to bring and entrench more democracy and justice to both parts of the United Republic of Tanzania