THIS is the third installment in my series of articles under the heading “Constitutionalism and Political change in Tanzania” In the second article, we started discussing the history of Constitution making in Tanzania, in respect of the Constitution of the United Republic. This article is a continuation of that discussion.
The political events which necessitate the making of a new Constitution In the matter of enacting new Constitutions, there are certain political events of a fundamental nature which, when they occur, inevitably necessitate the making of a new Constitution.
The traditional ones are the following:
(i) When there is a change of sovereignty.
(ii) When there is a merger of sovereignty.
(iii) When the previous Constitution had 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 South Africa.
(i) When there is a change of sovereignty.
The practice of Constitution-making in Tanzania has generally followed this rule. That is to say, new Constitutions have been enacted only when there was some fundamental political change involving a change of sovereignty.
If it may rightly be called a principle, this principle was established during the making of the Republican Constitution of Tanganyika in 1962, in Prime Minister Kawawa’s statement in Parliament, when he said the following: “Mr Speaker, this Constitution has been prepared in accordance with the proposals contained in Government Paper no. 1 of 1962.
Although the Government Paper referred to the making of amendments to the existing Constitution, we have thought it best to substitute a new and self-contained document to mark such a fundamental change”.
As will be explained later, the fundamental change referred to by the Prime Minister was a change of sovereignty by transferring the country’s sovereignty from the Queen of England who had been the Head of State of Tanganyika, to an elected President of Tanganyika who now became Head of State.
This change of sovereignty is what necessitated the making of a new Constitution, namely the Republican Constitution of Tanganyika. (ii) When there is a merger of sovereignty.
The new Constitution of the United Republic of Tanzania of 1977, was a result of another fundamental change involving a merger of sovereignty, when the Republic of Tanganyika united with the Peoples’ Republic of Zanzibar to create a new sovereign state, by the name of the United Republic of Tanzania.
This necessitated the making of a new Constitution for the new sovereign state. (iii) When the previous Constitution has been abrogated. When President Iddi Amin Dada came to power in Uganda through a military coup in January 1971, he abrogated the previous Constitution of Uganda.
Hence, when he was removed from power several years later, it became necessary to enact a new Constitution for Ugan da in order to replace that which had been abrogated.
(iv) When there is need to abandon a totally unacceptable Constitution. When the obnoxious apartheid regime of South Africa was swept from power by the democratic forces led by Nelson Mandela, it was necessary to enact a new Constitution to govern the new democratic South Africa.
‘ There are exceptions to every rule’. But, as the saying goes, “there are exceptions to every rule” The new Constitutions of Kenya, Malawi, and other countries which have opted to enact new Constitutions, which now includes Tanzania, provide the proverbial exception to this rule.
The exception arises when the relevant national Authorities feel that there are good enough reasons for enacting a new Constitution, notwithstanding the fact that no fundamental political change has taken place, such as a change of sovereignty.
In such circumstances, a new Constitution can be created. The ongoing process of making a new Constitution for the United Republic of Tanzania falls into this category, the main reasons being that firstly, there have been repeated demands by the opposition political parties for the enactment of a new Union Constitution.
And secondly, there is the need to accommodate the social, economic and political changes which have taken place since the 1977 Constitution was enacted. These are the factors which influenced the decision to enact an entirely new Constitution of the United republic.
At the time of writing, this new Constitution making process is still on-going.
CONSTITUTIONAL ENGINEERING : THE HISTORY OF CONSTITUTION-MAKING TANZANIA.
It may be worthwhile to start this discussion by reminding our readers about the principal factors which normally influence the processes of Constitution-making; in order to understand how they were applied in similar processes which have taken place in Tanzania over the years.
These factors are:
(a) the political forces which were at work when the relevant Constitution was enacted;
(b) the ‘commonsense’ political considerations of practical convenience at the material time;
(c) the precedents which were applied by the Constitution-makers at that time. Indeed, Constitutionmaking has been a continuous process since Tanganyika’s independence in 1961, and Zanzibar’s independence in 1963.
The political forces which were at work during the enactment of the independence Constitutions of our country had made it necessary for these documents to be drafted and enacted by the British Parliament in London.
The Tanganyika Independence Constitution was actually cited as ‘The Tanganyika (Constitution) Order in Council, 1961; and was published in the Tanganyika Official Gazette as GN 415 dated 1/12/1961.
Its provisions preserved the British Queen Elizabeth the Second as Head of State of Tanganyika. Similarly, the Zanzibar independence Constitution of 1963 was crafted in London and enacted by the British Parliament.
Like the Tanganyika Independence Constitution, the Zanzibar independence Constitution also included a provision which preserved the Sultan of Zanzibar as Head of State.
That Constitution was abrogated only one month after its coming into force, following the January 12th Revolution which overthrew the feudal monarchy. We do not intend to dwell on these independence Constitutions, simply because they were not made in Tanzania, they were actually imports from London.
We therefore prefer to discuss the chosen topic of ‘Constitutionalism and political change’ in relation only to the period after independence, in respect of those Constitutions which were actually ‘made in Tanzania’.
A brief history of Constitution-making processes in Tanzania. The process of Constitution-making after independence has resulted in the enactment of the following new Constitutions:
(i)The Constitution of the Republic of Tanganyika, 1962.
(ii)The Zanzibar (Constitutional Government and Rule of Law) Decree 1964.
(iii)The Interim Constitution of the United Republic of Tanzania, 1965.
(iv)The Constitution of the United Republic of Tanzania, 1977.
(v)The Constitution of Zanzibar, 1979.
(vi) The Constitution of Zanzibar, 1984.
In the paragraphs which follow below, we will examine the historical factors and other circumstances which surrounded the enactment of each of these Constitutions. The Constitution of the Republic of Tanganyika, 1962.
The Republican Constitution was enacted on 23rd November 1962, by a Constituent Assembly which had been established for that purpose.
The Republican Constitution had to be a new Constitution because it satisfied the requirement of ‘change of sovereignty’; for in this particular case, there was a transfer of sovereignty from the Queen of England as Head of State of Tanganyika, to the President of Tanganyika.
The historical circumstances surrounding its adoption. The change of sovereignty occurred because the independence Constitution had given Tanganyika what is known as ‘Dominion status’.
This is a rather complex constitutional arrangement which creates a separation of powers between the Head of State and the Head of Government. Hence under this arrangement, the Queen of England became the Head of State of Tanganyika, and Mwalimu Julius Nyerere became Prime Minister and Head of Government.
In practice, this meant that Tanganyika basically continued to be governed by the Queen of England in her capacity as Tanganyika’s Head of State. She was represented here in the country by a Governor-General whom she appointed.
The Governor-General had the authority, on behalf of the Queen, to give assent to laws which were enacted by the National Assembly of Tanganyika, and to carry out any other duties which are constitutionally the responsibility of the Head of State.
This complex constitutional arrangement did not make sense to the majority of the people of Tanganyika, who could not understand the rationale of the country being independent under such circumstances!
Thus, acting on ‘the commonsense consideration of practical convenience’, it was decided to enact a new Constitution which the people could more easily understand, and which accords with their concept of independence.
The end result was the Republican Constitution, which removed the said Dominion status, and replaced it with the Republican status., which combined the powers and authority of the Head of State with those of the Head of Government, and placed them in the hands of the President, who was to be elected directly by the people of Tanganyika themselves.
To be continued next week.