THIS is the fourth article in this series, which is jointly presented under the heading of “Constitutionalism and Political Change in Tanzania”. In the third article which was published last week, we presented a brief history of Constitution-making in Tanzania, starting with the two Constitutions of Tanganyika which were before its Union with Zanzibar.
These were the Tanganyika Independence Constitution of 1961, and the Tanganyika Republican Constitution of 1962. We will now conclude the discussion on the Tanganyika Republican Constitution by describing the precedents which guided, or actually influenced, our law makers in enacting that Constitution.
Before we come to the Constitutions which followed thereafter. That is to say, both the Union Constitutions and the Constitutions of Zanzibar, which will be presented in the order of the years in which, they were enacted.
The precedents which were followed in the case of the Tanganyika Republican Constitution, were to be found in Ghana, which had gained its independence from Britain in 1957, and had also been given similar ‘Dominion status’ under a Constitution drafted in London and enacted by the British Parliament, with the Queen of England as Ghana’s Head of State, and Kwame Nkrumah as Prime Minister and Head of Government.
But in 1960, Ghana enacted a new Republican Constitution, which provided for a Presidential form of government with an elected President, who became both Head of State and Head of Government.
The Constitution of the Republic of Tanganyika was crafted largely along the lines of Ghana’s Republican Constitution. The next one in the order of its enactment date, was the Zanzibar ‘Constitutional Government and Rule of Law’ Decree of 1964.
The Zanzibar Constitutional Government and Rule of Law Decree, 1964 A ‘Decree’ in this context, is defined as ‘an official order from a ruler of a country that becomes part of the law of the land’.
Following the successful Zanzibar Revolution of January 1964 which overthrew the Sultan’s Government in Zanzibar, the new Government of President Karume abrogated the previous Constitution, which was the Zanzibar Independence Constitution of 1963. It thus became necessary to enact a new Constitution for Zanzibar.
However, due to the prevailing revolutionary circumstances, it could not have been possible to appoint a Constituent Assembly and to go through the normal Constitution-making procedures.
Hence this new Constitution was enacted in the form of a ‘Decree’ which was issued by President Karume. The historical circumstances surrounding its adoption The “Zanzibar independence Constitution” of 1963 had conferred the same ‘Dominion status’ to Zanzibar by retaining the Zanzibar monarchy and transferring political power and authority to the Sultan of Zanzibar as Head of State; with Mohamed Shamte as Prime Minister and Head of Government.
The Zanzibar Revolution of January 1964 removed this Dominion status and replaced it with a new Republican status, with President Abeid Amani Karume as both Head of State and Head of Government.
These provisions were made in the new Constitutional Decree, cited as “The Constitutional Government and Rule of Law Decree, 1964” (no. 5 of 1964). This Decree vested all the State powers, that is to say, the Executive power, the Legislative power, and the Judicial power, in the new Zanzibar Revolutionary Council, under the chairmanship of President Abeid Amani Karume.
But this was intended to be only a temporary arrangement, for it was also stipulated that within one year of the Revolution, there would be appointed a Constituent Assembly which would enact a new Constitution for Zanzibar.
However, this intention was soon overtaken by Zanzibar’s Union with Tanganyika three months later, which resulted in the signing of the “Articles of Union’. The said Articles of Union introduced an interim Constitution for the new United country.
This is discussed in the paragraphs below. The Interim Constitution of the United Republic of Tanganyika and Zanzibar in 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 provision for:
(a)The Constitution of Tanganyika to 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 of 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 the United Republic was subsequently re- enacted in 1965, which also became known as the ‘One-Party Constitution’. It was referred to as the One-Party Constitution because the initiative for the introduction of a One-Party Constitution was 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 a denial of justice to the voting population, who were unable to vote because their candidates had been returned unopposed.
The historical circumstances surrounding the adoption of the one-party Constitution This situation had caused glaring problems, especially in the area of electoral democracy, due to the fact that the multiparty Constitution which was in force at the material time, and the electoral laws based on this Constitution, 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 at 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 salient features of this Constitution were the following:
(a) It introduced a new system of electoral competition to take place between candidates of the same political party.
(b)It imposed a prohibition on private candidates from participating in elections for all elective posts.
(c) Because of the need to accommodate a sufficiently large number of members of the Union Parliament from Zanzibar, (and because at that particular time, elections of any kind were prohibited in Zanzibar), this Constitution increased the number of nominated members from Zanzibar from the previous 20 to 52.
The Articles of Union, 1964
This item is included in this discussion purely because of its great historical importance and political impact, for having created the present United Republic of Tanzania. The said Articles of Union did not constitute a Constitution.
They only constituted an international Agreement called a Treaty, which had to be ratified by the Legislatures of the two countries in order to become part of national law.
It may, probably, be of some interest to our readers to explain here that since the original signed copies of the Articles of Union are securely locked away in the vaults of State House, not many people have been able to see their actual contents, although the said Articles of Union were made available to the general public, when that document was appended to the Union ratification Act (no. 22 of 1964).
The precedents which were utilized on this occasion were to be found in the “Union of England and Scotland”. England had been a sovereign state for many centuries. In 1707, England ceased to be an independent state, when it entered into union with the independent state of Scotland.
This union had similarly been founded on the ‘Articles of Union’ negotiated by commissioners representing the Parliaments of the two countries, and the said Articles of Union were ratified by separate Acts of Parliament which were passed by each of the two countries forming that Union.
The Union of Tanganyika and Zanzibar followed a similar process. It was negotiated by the Presidents of the two countries, who subsequently, after agreement was reached, they signed the Articles of Union, these also were similarly subject to ratification by the Legislatures of the two countries; which was done on 25th April, 1964.
To be continued next week.