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Will the new constitution save our `ailing` union?

7th October 2012
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The state and the territory that has since 1964 been known as the United Republic of Tanzania is currently under ‘clear and present danger.’ After 1964 and for much of the next three decades, the Articles of the Union and the Acts of Union that legally created Tanzania were systematically undermined and the autonomy of Zanzibar subverted using the political guise of ‘consolidating the Union.’

By the advent of multiparty politics in the early 1990s, Zanzibar had not only lost her independence in matters of monetary policy, internal security and a host of other matters reserved to her under the Articles of the Union and the Acts of Union, she had also lost her statehood, and the right to choose her leaders had shifted from Zanzibar to Dodoma.

And as Professor Issa G. Shivji has shown in his exhaustive studies of the Union, the history of the Union is a history of illegality and unconstitutional behaviour by the Union Government. Indeed, the Union itself is a product of the insecurities, deceit and the subterfuge of its two protagonists, Mwalimu Julius K. Nyerere and Sheikh Abeid Amani Karume, and the imperialist powers that were then hovering in the background.

By the beginning of its second decade, the Union was being questioned by prominent Zanzibaris, led by Karume’s successor Alhaj Aboud Jumbe.

Although, following the ‘pollution of the political atmosphere’ in January 1984, Jumbe and his key lieutenants were made to pay a heavy political price for challenging the constitutionality of wide ranging aspects of the Union, the debate on the Union and its future has since then never left the political stage and the academic discourse. And, at least in Zanzibar, recent constitutional developments point towards independence and the end of the Union.

DECLARATIONS OF INDEPENDENCE?

On 13th August, 2010, the Zanzibar House of Representatives enacted the Tenth Amendment to the Constitution of Zanzibar. Though touted as the consummation of the Muafaka wa Kisiasa between the ruling Chama cha Mapinduzi (CCM) and the opposition Civic United Front (CUF) – and thus paving the way for the formation of the Government of National Unity – the Tenth Amendment has to be seen as a unilateral declaration of Zanzibari independence.

Both legally and politically, it challenges the constitutional basis of the Union as agreed upon in the Articles of the Union. Significantly, it also ‘claws back’ the various aspects of the Zanzibari autonomy that were lost in dubious circumstances after 1964. For example, whereas the Zanzibar Constitution, 1984 had previously – and rather sheepishly - recognized Zanzibar as ‘a part’ of the United Republic, following the enactment of the Tenth Amendment, Article 2 of the current Constitution now declares boldly that ‘Zanzibar is amongst the two countries that form the United Republic of Tanzania.’

And whereas the President of Zanzibar was previously a mere Chairman of the Revolutionary Council of Zanzibar and head of the government thereof, Article 26(1) of the current Constitution proclaims the Zanzibar President as the ‘Head of State of Zanzibar, Supreme Head of the Revolutionary Government and Chairman of the Revolutionary Council.’ The constitutional myth of Tanzania as ‘one country’ could not have been brought into a sharper relief!

Unfortunately for the Union, the story does not end there. As Shivji observes in his Pan-Africanism or Pragmatism, “... Zanzibar has never fully accepted to be without any armed personnel under its control.” This reluctance to be defenceless continues to this day.

Thus, whereas the Acts of the Union had reserved ‘defence’ and ‘police’ as Union Matters under the exclusive jurisdiction of the Union Government, Article 121(1) of the current Zanzibar Constitution creates what can only be termed as the nucleus of the Zanzibari armed forces.

Mysteriously called ‘Special Departments’ (Idara Maalum za Serikali ya Mapinduzi ya Zanzibar in their Kiswahili rendering), these units are listed – under Article 121(2) – as Jeshi la Kujenga Uchumi (JKU), Kikosi Maalum cha Kuzuia Magendo (KMKM) and Chuo cha Mafunzo. Ominously for the Union, Article 121(3) empowers the Zanzibar President, ‘if he sees fit’, to establish any other Department to be an Idara Maalum.

Now, on the basis of the Articles of the Union and the Acts of Union, the successive Constitutions of the United Republic have recognized the President of the United Republic of Tanzania as Head of State, Chief of the Union Executive and the Commander-in-Chief of the Tanzanian Armed Forces.

Now however, Article 123(1) of the Zanzibar Constitution confers upon the Zanzibar President the title of ‘the Supreme Commander of the Special Departments’ with powers “... to do anything which he feels, in the (Zanzibari) national interests, appropriate.” Under Sub-Article (2), the powers of the Supreme Commander under Sub-Article (1) “... include the power to issue orders to perform any function related to that Department for (Zanzibar) interests.” It is my humble submission that these are, inter alia, war-making powers!

At the very least, the provisions cited above challenge the very basis of the Union by questioning the Articles of the Union and the Acts of Union – all of which reserved ‘defence’ and ‘police’ matters to the Union Government – and various provisions of the Union Constitution , all of which relate to the powers of the Union Government in defence and security matters and the status and prerogatives of the Union President as Commander-in-Chief. And although Article 151(1) of the Union Constitution defines ‘Government’ as including the Revolutionary Government of Zanzibar, etc., it is my submission that the power of the ‘Government’ to create armed forces under Article 147(1) of the Union Constitution does extend to the Revolutionary Government of Zanzibar in view of the Articles of the Union and the Acts of Union which reserved defence and security matters to the Union Government.

UNION JUDICIARY?

There are other subtle declarations of independence. Although not a Union matter under the Articles of Union and the Acts of Union, the Court of Appeal of Tanzania was surreptitiously imported into the First Schedule of the Union Constitution by the constitutional amendments of 1979, following the disbanding of the Court of Appeal for Eastern Africa and the enactment of the Appellate Jurisdiction Act. Its jurisdiction was eventually recognized by Zanzibar, albeit with certain exceptions and limitations , when the 1984 Constitution was enacted.

The Tenth Amendment to the Zanzibar Constitution has widened the scope of the limitations to the jurisdiction of the Court of Appeal in Zanzibari matters.

While it has retained the prohibition against, inter alia, matters involving interpretation of the Zanzibar Constitution and Islamic matters, Article 24(3) of the current Constitution has now expressly forbidden appeals to the Court of Appeal in matters relating to fundamental rights, duties and freedoms under Part Three of the Zanzibar Constitution. In other words, the Court of Appeal can no longer adjudicate on matters of fundamental rights emanating from Zanzibar.

There is no doubt, given the constitutional authority of Article 4(3) read together with item 21 to the First Schedule as well as Article 117(1) of the Union Constitution, that the limitations placed to the jurisdiction of the Court of Appeal of Tanzania by the Tenth Amendment are ultra vires the Union Constitution. However, Zanzibar appears to have decided to clip the wings of the Court of Appeal following the latter’s controversial decision in Serikali ya Mapinduzi Zanzibar versus Machano Khamis Ali and 17 Others to the effect that Zanzibar was neither a country nor a state for purposes of the law relating to treason.

ROLLING BACK THE IMPERIAL PRESIDENCY?

The Union President has had his powers in matters pertaining to Zanzibar similarly clipped. Thus, for example, under Article 2(2) of the Union Constitution the Union President is empowered to demarcate the United Republic into regions, districts and other areas. Similarly, under 61(3) of the Union Constitution, the President is duty-bound to advise the Zanzibar President in regard to the latter’s appointment of Regional and District Commissioners for Zanzibar.

These provisions were, to be sure, contrary to the Articles of Union and the Acts of Union. Now, following the Tenth Amendment, the current Constitution of Zanzibar has put paid to those powers. Thus, under Article 2A, only the President of Zanzibar can demarcate Zanzibar into regions, districts and other geographical units. In addition, under Article 61(1), Zanzibar President is no longer obligated to receive advice from the Union President in his appointment of Regional and District Commissioners for Zanzibar.

Finally, section 5(1)(b) of the Acts of Union had provided for a separate Legislature and Executive for Zanzibar ‘constituted in accordance with the existing law of Zanzibar....’ That, however, did not deter the imperial appetites of the Union authorities. No wonder then that the Union Constitution has devoted the whole of Chapter Four to ‘the Revolutionary Government of Zanzibar, Revolutionary Council of Zanzibar and the House of Representatives of Zanzibar.’

In his Inaugural Professorial Lecture of January 1990 published as The Legal Foundations of the Union, Professor Shivji had called this “... an unnecessary and fortuitous interference in the affairs which are within the exclusive jurisdiction of Zanzibar.” It is for this reason, and quite rightly, that following the Tenth Amendment, Zanzibar has radically redrawn its political and constitutional power map without paying any heed to Chapter Four of the Union Constitution.

To recap, from the standpoint of the current Constitution of Zanzibar, there is no longer one country referred to in the Union Constitution but two. Similarly, defence and security matters are, from the same perspective, no longer Union Matters, for each country now has its own armed forces and each now has its very own Commander-in-Chief or Supreme Commander.

Each of the latter Commanders can now summon their ‘countries’ to war, etc. In addition, since we now have two countries and two states, it follows logically that we must have two heads of state. And even though the Court of Appeal may still hear certain appeals from Zanzibar, it is the Zanzibaris themselves who now have the power to decide which appeals should go to that Court and which should not.

On the other hand, just as it did with the Bill of Rights in 1984, Zanzibar has once again blazed the constitutional trail by challenging the imperial powers of the Union President by divesting him of the powers to demarcate administrative areas in respect of Zanzibar or to interfere with the appointment of Zanzibari administrators.

The Tenth Amendment to the Zanzibar Constitution is, consequently and by all means, a major questioning of the fundamental tenets of the Union Constitution as we know it. It has not, however, received a single comment in Professor Wambali’s paper! Given the fact that the learned Professor has ‘conclusively’ declared himself an unqualified ‘supporter’ of the ‘Union as it is’, his silence on the recent constitutional developments in Zanzibar - which have ‘disrupted’, perhaps fatally, that which should not be disrupted but ‘maintained intact’ - is very loud and conspicuous indeed.

TWO GOVERNMENTS OR THREE GOVERNMENTS?

Professor Wambali’s views on the nature of the Tanzanian polity are also, with all due respect, out of kilter with historical facts and current jurisprudence on the Union. Firstly, contrary to his assertion that opposition to the current form of the Union originates in the post-1992 Mageuzi period, it is now a settled historical fact that the genesis of the three government formula dates back to at least the 1983-84 constitutional debate which culminated in the ‘pollution of the political atmosphere.’ Indeed, as Shivji has proved conclusively in his seminal study, Jumbe was toppled precisely because he demanded a return to the three government formula as envisaged by the Articles of the Union.

Secondly, while it is true that opposition parties - such as the one I represent in Parliament - have become principal supporters of the three government formula, none has ever claimed that that formula is ‘the foolproof solution’ to the problems that have beset the Union throughout its existence. Indeed, apart from Jumbe’s abortive attempt in 1983-84, the three government formula has been recommended by every official enquiry into the matter during the past two decades or so.

Such was the case with the Presidential Commission of Inquiry into Single Party or Multiparty System for Tanzania known famously as the Nyalali Commission which published its Report in 1991. So was the Tume ya Kukusanya Maoni Juu ya Katiba, White Paper Na. 1 ya 1998, known famously by the name of its distinguished Chairman as the Kissanga Commission. While the former was appointed by President Mwinyi, the latter was appointed by his successor, President Mkapa. None of these two Commissions can be described as opponents of the two government formula of the Union. Neither can the two Presidents who appointed them.

Thirdly, as Shivji exhaustively argued in his The Legal Foundations of the Union more than two decades ago, notwithstanding its two government formula, the United Republic is, in fact, a federal state. His position has found support in no less authority than Professor Yash Ghai, the first East African Dean of the then Faculty of Law of the University of Dar es Salaam and an eminent jurist of world renown.

Professor Wambali is, from the point of view of the jurisprudence of the Union, mistaken in his holding that the United Republic is ‘a mixed form’, straddling uncomfortably between the ‘federal’ and ‘unitary’ forms of government. Which is to say, the opponents of the two government formula of the Union are in fact opponents of this form of federation rather than opponents of the half-way house between federalism and unitarism that they have been made to appear by the learned Professor.

It seems to me that many of the opponents to any tinkering with the two government formula of the Union base much of their opposition on ideological grounds rather than on real political facts on the ground.

To many of them, to tinker with or change the current formula is to knock down the last peg of Mwalimu Nyerere’s legacy, his Ujamaa having been consigned to the junkyard of history by the rapacious capitalists he bequeathed the CCM party and country to upon his departure from the historical stage. To such diehard Nyerereists, any challenge on Mwalimu’s formula for the Union is a dangerous heresy that must be shouted down rather than debated.

It matters little to them that Mwalimu foisted the Union on a rather unwilling but fearful Karume, as historical evidence now reveals. It is of no consequence to them that the Union never had the legal sanction of the Zanzibar Legislature of that time, nor the political blessings of the peoples of the two countries as is now widely conceded even by its most rabid supporters. That it has been maintained through lies, deceit and/or dictatorial means as is now amply demonstrated is, to these fervent Unionists, neither here nor there.

They also appear to be completely oblivious to the current exigencies of a multiparty Tanzania which can render nugatory the constitutional schema which has undergirded the two government formula since 1964. And, on the basis of the findings and conclusions of these Disquisitions regarding the recent constitutional developments in Zanzibar, the supporters of the ‘Union as it is’ appear completely blind to the fact that their beloved Union is, in fact, no longer what it has always been.

Regrettably, Professor Wambali appears to have fallen under the thrall of such Unionists! But whether we like them or not, whether we acknowledge what is happening or we choose to bury our collective heads in the proverbial sand, the issues raised by these developments cannot be evaded any longer. The hour of reckoning is well nigh.

OF SEPARATION OF POWERS AND IMPERIAL PRESIDENCY

Professor Wambali’s paper is at its best when dealing with the doctrinal and political question which has been at the heart of the African constitutional and political discourse for more than a generation. That question relates to the relationship between the executive and the other two branches of government inter se, and, within the executive, the powers of the Presidency.

The post-colonial constitutional and political landscape in Africa was characterized by what Professor H.W.O. Okoth-Ogendo, the pre-eminent Kenyan constitutional scholar once described as the ‘Imperial Presidency.’ This characterization relates to the enormous powers that the African Presidency has had relative to other power centres within the executive branch and, more importantly, the dominance of the executive over the other branches of the government.

As Professor Wambali amply shows, the plague of Imperial Presidency has also dominated Tanzanian politics and constitutional order for decades. It only suffices, for purposes of these ‘Disquisitions’, that the Imperial Presidency has been the constitutional and political demiurge in all matters, big and small in our country.

Under the Union Constitution, for example, the Tanzanian President is not only superficially related to the National Assembly in his legislative capacity of assenting, or refusing to assent to, bills passed by the latter - a powerful enough lever in any nation’s political decision-making.

The President also exerts enormous legislative power and influence through his constitutional prerogative to appoint Members of Parliament. The long shadow of the Imperial Presidency has also been cast in numerous other ways as, for instance, in such mundane matters as determining the salaries and other emoluments of Members of Parliament.

AID TO ‘JUDICATURE’S GRAVE-DIGGERS’

As far as the Judiciary is concerned, the long shadow of the Imperial Presidency has also continued to pervade the Judiciary. As Professor Wambali makes clear, the President appoints all Judges of the High Court of Tanzania and the Justices of the Court of Appeal.

The Registrars of the High Court and of the Court of Appeal are also presidential appointees, as is the Chief Court Administrator, created by the recently-enacted Judicial Administration Act, 2011. Even though the President is obligated to receive advice from the Judicial Service Commission, itself made up of presidential appointees, when appointing Judges of the High Court; or of the Chief Justice when appointing Justices of the Court of Appeal, recent revelations made in Parliament have shown a scandalous disregard for the Constitution when appointing Judges and Justices.

Thus, because of the long shadow of the presidential power, we have persons appointed Justices of the Court of Appeal who do not qualify for appointment as Resident Magistrates! Similarly, we have persons appointed Judges of the High Court who have previously been caught with their ethical pants down; or who cannot string together two sentences in straight English; or who are too ill to serve in any capacity, judicial or otherwise; or who are too tired, having served the country in other capacities, to be of any use as Judges! In addition, we have contract Judges when our Constitution provides for tenured Judges.

Indeed, we have persons appointed Judges and Justices who may have committed serious crimes such as bribery or forgery of personal records in order to qualify for appointment. In short, we have on the Bench many persons who should never have gone anywhere near our Judges chambers!

These facts have been fairly well known within the government, the Judiciary itself and, I dare say, within the Bar. They have been the subject of considerable soul-searching and hand-wringing within the corridors of judicial and executive power at the highest levels.

They are the subject of very lurid and juicy gossip by lawyers and laymen alike. Yet no one, not even this distinguished gathering, has dared to raise their voice in public. No one has stood up to be counted. We all fear to be targeted by the cabal that has now filled our courts wearing judicial robes.

Yet, as William Rivers Pitt, the American author, has argued, ‘silence is the greatest sedition.’ Our silence in the face of the greatest attack on the integrity of our Judiciary is our complicity in the crimes of the cabal.

To use the term of criminal law, by our silence, we are aiding and abetting those who are hell-bent to destroy our courts by filling them with judicial misfits. Sixteen years ago, the former Chief Justice Barnabas Samatta warned us against aiding ‘the judicature’s grave-diggers’ through our obsessive demands for compliance with the rules of procedure.

The greatest danger now is not the obsession with technicalities. Our ‘aid to the judicature’s grave-diggers’ now consists in our silence, our fear to speak out and thereby risk our petty privileges, our cowardice in the face of the flooding of our Judiciary with judicial mediocrity.

Though, as I have stated, the issues raised here are fairly well known and have in any case been in the public domain most recently, Professor Wambali has, perhaps not without fear of the dire consequences, devoted only one sentence to the scandal involving judges appointments in his one paragraph dedicated to the ‘Independence of the Judiciary’!

WHAT IS TO BE DONE?

The problems discussed in these ‘Disquisitions’ demand urgent answers. Their solution can no longer be evaded or postponed. Hiding in the small-mindedness of our little law chambers, and hoping that someone else will clean up the Aeugean Stables of our constitutional mess, can no longer suffice.

As individual citizens or the professionals we take ourselves to be, we must take a stand. We should demand accountability from everybody involved in this sordid saga. We should demand an immediate resignation or expulsion of all Judges and Justices who have been appointed and continue to serve contrary to the Constitution. We should demand an open, independent and transparent investigation of why things were allowed to go so horribly wrong for so long.

As a high-level Task Force appointed in 2008 to inquire into this mess found out: “... These Judges perform the duties of a Judge contrary to the Constitution hence all duties they have previously performed and currently continue to perform ... have no legal validity whatsoever.

It is as if the said duties were performed by any other employee who does not hold the office of Judge.” The Task Force – comprising of senior officials from the President’s Office, the Attorney General’s Chambers and the Judiciary – recommended that the President be advised to “... immediately rescind the contracts involving those Judges because they have serious consequences to the society and for the appointment of new Judges to take their positions....” Nothing has happened to-date!

The integrity of our Judiciary and the future of this country is urgent and demands action, not pious wishes or prayers. As Frederick Douglass, the African-American ‘father of the protest movement’, said more than a hundred and sixty years ago: “At a time like this, scorching irony, not convincing argument, is needed.... It is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake.

The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes ... must be proclaimed and denounced.”

If, on the other hand, we shirk our responsibilities and fail or refuse or ignore to discharge our duties as lawyers and citizens, then, to paraphrase Frederick Douglass again: our celebrations of the rule of law will be a sham; our boasted independence of the judiciary, an unholy license; our sounds of rejoicing about legality will be empty and heartless; our shouts of liberty and equality, a hollow mockery; our prayers and sermons, our hymns about separation of powers will be a mere bombast, fraud, deception, impiety and hypocrisy.

We shall then deserve to be said about us what was said of our English counterparts by Jonathan Swift, the great Irish writer and author of Gulliver’s Travels, nearly three centuries ago: Lawyers are “... a society of men among us, bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are paid.”

The author, who is an MP for Singida East Constituency and an Advocate of the High Court of Tanzania, presented this paper at a semi-annual general meeting of the Tanganyika Law Society recently in Arusha.

SOURCE: GUARDIAN ON SUNDAY
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