Constitutionalism and Democratic Governance in Africa: - PULP

18 Chapter 2
from 26 April 1964. 11 This Union consists of two organs vested with
executive powers, two organs vested with judicial powers and two organs
vested with legislative and supervisory powers over the conduct of public
affairs, as provided for by the 1964 Articles of the Union, 12 and the
Constitution of the United Republic of Tanzania of 1977 (the Constitution
of Tanzania, 1977). 13 The Union Government, the judiciary of the United
Republic and the Parliament of the United Republic, exercise powers over
the whole territory in all Union matters in and for Tanganyika (Tanzania-
Mainland) and an autonomous government known as the Revolutionary
Government of Zanzibar (Tanzania-Zanzibar), the judiciary of the
Revolutionary Government of Zanzibar, and the House of
Representatives, whose powers are confined to non-Union matters in and
for Zanzibar. It also entrenches a Bill of Rights. 14 Union matters according
to the Union Constitution 15 include the Constitution of Tanzania and the
Government of the United Republic, citizenship, higher education,
research, foreign affairs, statistics and the Court of Appeal of the United
Republic. 16 In the case of Khatib Haji v Juma Sleiman Nungu, 17 the Court of
11
Article I of Articles of the Union between the Republic of Tanganyika and the People’s
Republic of Zanzibar of 1964. See also, S Mvungi ‘Legal problems of the Union
between Tanganyika and Zanzibar’ (2003) Eastern Africa Law Review 31. In this context,
unless otherwise clearly stated, the word ‘Tanzania’ as is used in this chapter, refers to
the Mainland part of the Union, formerly the Republic of Tanganyika.
12 1964 Articles of the Union (n 11 above) article III(a).
13
Constitution of Tanzania 1977 (n 1 above) article 4(1) & (2). See also, BM Nchalla
‘Tanzania-Mainland’s human rights obligations and situation vis-à-vis the African
Union’s human rights documents’ Paper presented at a residential seminar on advanced
human rights and leadership training, organised by Amnesty International Mauritius
Section, from 19-21 September 2008 2.
14 Constitution of Tanzania 1977 (n 1 above) article 4(3) provides for the distinction of
public affairs into Union matters and non-Union matters. It has distinguished them for
the purpose of efficient conduct of public affairs and for the allocation of powers among
the branches of the government as specified in the Constitution. See n 1 above, article
4(1) & (2). See SA Abdallah ‘The legislative powers of Tanzania Parliament over non-
Union matters for Zanzibar’ unpublished LLM dissertation, University of Dar es
Salaam, 2006 30. See also, Mvungi (n 11 above) 31. See also Part III of the Constitution
of Tanzania 1977 providing for the Basic Rights and Duties.
15 Constitution of Tanzania 1977 (n 1 above). It is important to point out here that
Zanzibar has its own constitution apart from the Union Constitution called the
Constitution of the Revolutionary Government of Zanzibar of 1984 (as amended).
16
Constitution of Tanzania 1977 (n 1 above) first schedule. It is also equally vital to note
that, there have been the 10th constitutional amendments of the Constitution of
Zanzibar of 1984 (as amended) effected in August 2010, which have raised a number of
issues, inter alia: the status of the Union, as the amendments now recognises Zanzibar
as a sovereign state within the Union such changes contradict the Union Constitution
which recognises Zanzibar as part of the Union; the status of the Court of Appeal of
Tanzania, a Union matter, as article 24(3) of the amendments by implication ousts its
jurisdiction to determine appeals emanating from cases related to human rights, such
appeals would be determined by the Zanzibar High Court. On the issue of whether
Zanzibar is a sovereign state or not, the Court of Appeal of Tanzania in the Revision
from the ruling of the High Court of Zanzibar of SMZ v Machano Khamis Ali & Others
[2000] TZCA 1 held inter alia ‘... treason can only be committed against a sovereign.
However, as treason is a breach of security, which in the United Republic is a Union
Matter, therefore, the sovereign is the United Republic and not the Revolutionary Government of
Zanzibar or the Head of the Executive of Tanzania Zanzibar who is also called the
President of Zanzibar.’ (emphasis added). See Peter & Othman (n 10 above) 188-213. See
generally, CM Peter & I Sikand (eds) The judiciary in Zanzibar (2006). See also ‘Lawyers