CLEAR understanding of the fact that under the two-government structure
of the Union between former Tanganyika (now Tanzania Mainland), and
Zanzibar, and of its Constitutional implications on the powers and
authority of the Union President in relation to Zanzibar, is of the
utmost importance.
This is because the lack of such understanding can cause, (and in fact has already caused), some unnecessary problems to the Union President and Government, such as the political impasse in Zanzibar which was caused by the decision of the Zanzibar Electoral Commission to countermand the Zanzibar general elections.
These circumstances have led to the action reportedly taken by the American Government’s Millennium Challenge Corporation to defer voting on Tanzania’s eligibility to receive the proposed 472.8 US dollars assistance funds to the Union Government, until the problem of the postponed Zanzibar Elections is resolved.
This was in addition to many other urgent calls being made to Union President John Magufuli, urging him to ‘take quick action’ to resolve the Zanzibar impasse. I believe that these developments were based on the lack of a, or clarity, regarding the Constitutional restrictions which have been placed on the Union proper understanding President’s power and authority over “non-Union matters” in relation to Zanzibar; under the unique two-government structure of our Union, which I will endeavour to explain in the paragraphs below.
The distinction between ‘Union’ and ‘non-Union’ matters. The Constitution of the United Republic of Tanzania, 1977, provides a clear distinction between what it designates as “Union matters’ and “non-Union matters” Under this distinction, the President of the United republic is vested with full power and authority over ‘Union matters’ in relation to both Tanzania Mainland and Zanzibar.
But in relation to ‘non-Union matters’, the President is vested with such power and authority only in relation to Tanzania Mainland, but has no such power or authority over ‘non-Union matters’ in relation to Zanzibar, or, to use the more familiar terminology, the Union President has no such power or authority over Zanzibar’s ‘internal affairs’.
This is because article 102(1) of the same Constitution creates a separate Government for Zanzibar, and vests full power and authority in the Zanzibar Government over all ‘non-Union matters’ in relation to Zanzibar.
This is the unique two-government structure of the Union between former Tanganyika and Zanzibar, which was created in 1964. Zanzibar elections are a ‘non-Union matter’.
The purpose of this article is to draw attention to the fact that the matter of elections for Zanzibar leaders, including the election of the President of Zanzibar and that of the members of the Zanzibar House of Representatives, is a ‘non-Union matter’, therefore Union President Dr John Pombe Magufuli, has no constitutional power or authority to resolve the impasse resulting from the postponement of those elections.
The uniqueness of the two-government structure. The extensive autonomy of Zanzibar within the Union was so intended by the founding fathers of this Union, Presidents Julius Nyerere of the Republic of Tanganyika, and President Abeid Amani Karume of the Peoples’ Republic of Zanzibar; and was deliberately created by them in the original Agreement which established this Union, ordinarily cited as the “Articles of Union”.
The fact that the two-government structure was a unique and unusual form of Union between two countries was fully acknowledged by Mwalimu Julius Nyerere, who set out to explain, in great detail, the reason why he and President Karume chose this particular Union structure, as follows:- “When two countries unite to form one country, the normal constitutional structure is either a unitary State with one government, or a Federation with three governments.
In the first case, each country abolishes its government, and the new state becomes one country with one government. In the second case, each country retains its government and cedes its power and authority only over certain specified matters to the Federal government.
When Tanganyika and Zanzibar agreed to form one sovereign state, we could have adopted either of these two usual structures, but we felt unable to do so, because of the small size of Zanzibar compared with that of Tanganyika.
Zanzibar had at that time 300,000 people, while Tanganyika had 12,000,000 people. A Union with one government would give the impression that Tanganyika had swallowed Zanzibar.
We could not allow this, because we had been fighting for the independence and unity of Africa, but we certainly did not want to create the impression, even erroneously, that we were introducing a new form of imperialism!
For that reason, I opposed a one-government structure. . . We had to find a system which would remove this fear of Zanzibar having been swallowed by Tanganyika.
And that is what we actually did. That is the origin of our two-government structure. Instead of acting like fools and simply copying an existing formula, we looked at our objective situation and worked out a more appropriate structure”.
We are all aware of the numerous failed attempts which have been made at different periods, in order to change this structure, starting with the Nyalali Commission in 1991; followed by the G.55 group of Parliamentarians in 1993, the Kisanga Commission, in 1998, and the Warioba Commission in 2014.
The supremacy of the Constitution Every person, including the President, has the duty and obligation to observe and to abide by the provisions of the Constitution. The rule of law concept requires that where certain specified powers are expressly vested in a specified leader without any provision for their delegation to any other person, they can only be exercised by the leader so specified, to the exclusion of all other persons.
Because of the unique two-government structure of our Union, the Union President (and the Union Government) are expressly excluded from exercising any power or authority over all non-Union matters relating to Zanzibar. And if we may repeat for the sake of emphasis, the matter of elections of Zanzibar leaders is a “non-Union matter”, a provision which must be respected.
Regarding the importance of observing the Constitution, Mwalimu Julius Nyerere said the following in his book titled “our Leadership and the Destiny of Tanzania” : “It is of vital importance to the peace of this country, and to the possibilities of harmonious development, that all the provisions of the Constitution, as it stands at any one time, should be respected and honoured by all authorities in both parts of the Union.
It is therefore the primary responsibility of the President of the United Republic, and of the Union Government under his leadership, to ensure that the Constitution is respected by preventing its violation.
Tyrannies and dictatorships do not have Constitutions (or if they have them on paper, they are disregarded and irrelevant in practice) But for countries like ours, which are trying to have accountable and democratic governments, their Constitution is the bulwark, or fortress, of their continued existence as a democracy.
Once their leaders allow to be disregarded, the democratic system of their nations are put at the mercy of charlatans and crooks. They thus set foot on the slippery path to dictatorship”.
In the light of what I have endeavoured to explain, it becomes clear that any pressure being put on President John Magufuli to use his authority to resolve the political impasse in Zanzibar, is based on the lack of understanding of this constitutional restriction on his authority in relation to the internal affairs of Zanzibar.
SOURCE: Dailynews.
This is because the lack of such understanding can cause, (and in fact has already caused), some unnecessary problems to the Union President and Government, such as the political impasse in Zanzibar which was caused by the decision of the Zanzibar Electoral Commission to countermand the Zanzibar general elections.
These circumstances have led to the action reportedly taken by the American Government’s Millennium Challenge Corporation to defer voting on Tanzania’s eligibility to receive the proposed 472.8 US dollars assistance funds to the Union Government, until the problem of the postponed Zanzibar Elections is resolved.
This was in addition to many other urgent calls being made to Union President John Magufuli, urging him to ‘take quick action’ to resolve the Zanzibar impasse. I believe that these developments were based on the lack of a, or clarity, regarding the Constitutional restrictions which have been placed on the Union proper understanding President’s power and authority over “non-Union matters” in relation to Zanzibar; under the unique two-government structure of our Union, which I will endeavour to explain in the paragraphs below.
The distinction between ‘Union’ and ‘non-Union’ matters. The Constitution of the United Republic of Tanzania, 1977, provides a clear distinction between what it designates as “Union matters’ and “non-Union matters” Under this distinction, the President of the United republic is vested with full power and authority over ‘Union matters’ in relation to both Tanzania Mainland and Zanzibar.
But in relation to ‘non-Union matters’, the President is vested with such power and authority only in relation to Tanzania Mainland, but has no such power or authority over ‘non-Union matters’ in relation to Zanzibar, or, to use the more familiar terminology, the Union President has no such power or authority over Zanzibar’s ‘internal affairs’.
This is because article 102(1) of the same Constitution creates a separate Government for Zanzibar, and vests full power and authority in the Zanzibar Government over all ‘non-Union matters’ in relation to Zanzibar.
This is the unique two-government structure of the Union between former Tanganyika and Zanzibar, which was created in 1964. Zanzibar elections are a ‘non-Union matter’.
The purpose of this article is to draw attention to the fact that the matter of elections for Zanzibar leaders, including the election of the President of Zanzibar and that of the members of the Zanzibar House of Representatives, is a ‘non-Union matter’, therefore Union President Dr John Pombe Magufuli, has no constitutional power or authority to resolve the impasse resulting from the postponement of those elections.
The uniqueness of the two-government structure. The extensive autonomy of Zanzibar within the Union was so intended by the founding fathers of this Union, Presidents Julius Nyerere of the Republic of Tanganyika, and President Abeid Amani Karume of the Peoples’ Republic of Zanzibar; and was deliberately created by them in the original Agreement which established this Union, ordinarily cited as the “Articles of Union”.
The fact that the two-government structure was a unique and unusual form of Union between two countries was fully acknowledged by Mwalimu Julius Nyerere, who set out to explain, in great detail, the reason why he and President Karume chose this particular Union structure, as follows:- “When two countries unite to form one country, the normal constitutional structure is either a unitary State with one government, or a Federation with three governments.
In the first case, each country abolishes its government, and the new state becomes one country with one government. In the second case, each country retains its government and cedes its power and authority only over certain specified matters to the Federal government.
When Tanganyika and Zanzibar agreed to form one sovereign state, we could have adopted either of these two usual structures, but we felt unable to do so, because of the small size of Zanzibar compared with that of Tanganyika.
Zanzibar had at that time 300,000 people, while Tanganyika had 12,000,000 people. A Union with one government would give the impression that Tanganyika had swallowed Zanzibar.
We could not allow this, because we had been fighting for the independence and unity of Africa, but we certainly did not want to create the impression, even erroneously, that we were introducing a new form of imperialism!
For that reason, I opposed a one-government structure. . . We had to find a system which would remove this fear of Zanzibar having been swallowed by Tanganyika.
And that is what we actually did. That is the origin of our two-government structure. Instead of acting like fools and simply copying an existing formula, we looked at our objective situation and worked out a more appropriate structure”.
We are all aware of the numerous failed attempts which have been made at different periods, in order to change this structure, starting with the Nyalali Commission in 1991; followed by the G.55 group of Parliamentarians in 1993, the Kisanga Commission, in 1998, and the Warioba Commission in 2014.
The supremacy of the Constitution Every person, including the President, has the duty and obligation to observe and to abide by the provisions of the Constitution. The rule of law concept requires that where certain specified powers are expressly vested in a specified leader without any provision for their delegation to any other person, they can only be exercised by the leader so specified, to the exclusion of all other persons.
Because of the unique two-government structure of our Union, the Union President (and the Union Government) are expressly excluded from exercising any power or authority over all non-Union matters relating to Zanzibar. And if we may repeat for the sake of emphasis, the matter of elections of Zanzibar leaders is a “non-Union matter”, a provision which must be respected.
Regarding the importance of observing the Constitution, Mwalimu Julius Nyerere said the following in his book titled “our Leadership and the Destiny of Tanzania” : “It is of vital importance to the peace of this country, and to the possibilities of harmonious development, that all the provisions of the Constitution, as it stands at any one time, should be respected and honoured by all authorities in both parts of the Union.
It is therefore the primary responsibility of the President of the United Republic, and of the Union Government under his leadership, to ensure that the Constitution is respected by preventing its violation.
Tyrannies and dictatorships do not have Constitutions (or if they have them on paper, they are disregarded and irrelevant in practice) But for countries like ours, which are trying to have accountable and democratic governments, their Constitution is the bulwark, or fortress, of their continued existence as a democracy.
Once their leaders allow to be disregarded, the democratic system of their nations are put at the mercy of charlatans and crooks. They thus set foot on the slippery path to dictatorship”.
In the light of what I have endeavoured to explain, it becomes clear that any pressure being put on President John Magufuli to use his authority to resolve the political impasse in Zanzibar, is based on the lack of understanding of this constitutional restriction on his authority in relation to the internal affairs of Zanzibar.
SOURCE: Dailynews.
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