Constitutionalism and Democratic Governance in Africa: - PULP

28 Chapter 2
Republican Constitution of 1962. 64 Thus, the way the Republican
Constitution was adopted and the unrepresentative nature of the
Constituent Assembly signified a continuation of the exclusionary process
of constitution-making in the country. In other words, while during the
colonial era, law-making was the exclusive right of the colonial leadership,
in the post-independence era, it was the exclusive right of the ruling party
leadership. 65 It is worth mentioning that the modus operandi which was
followed in adopting the Republican Constitution as a new constitution
altogether and not an amendment of the 1961 Independence Constitution
was eccentric. The Republican Constitution set the precedent for the
concentration of power in the presidency, which was later to become the
hallmark of the subsequent constitutions. 66
5.3 Union between Tanganyika and Zanzibar of 1964
It is momentous to note that the signing of the Articles of Union between
the then People’s Republic of Zanzibar and the Republic of Tanganyika on
22 April 1964 is a historic and a corner-stone episode in the constitutionmaking
process in Tanzania, as it gave birth to the United Republic of
Tanzania on 26 April 1964. The Union’s legality has been a subject of
discussion in recent years. 67 A liberal style constitution gave the people of
Zanzibar independence in 1963 under a government controlled by an Arab
minority. However, the constitutional government thus established was
64
L Ndumbaro ‘The state of constitutionalism in Tanzania, 2003’ in Tusasirwe (n 53
above) 13. See also Shivji (n 9 above) 48 – 49 where he has inter alia stated that the
Republican Constitution of Tanganyika was in theory made by a Constituent Assembly
but in reality it was made by the National Assembly since the Constituent Assembly
was the same body as the National Assembly.
65 Ndumbaro (n 64 above) 13.
66
Shivji et al (n 9 above) 49. Under the existing Constitution of Tanzania of 1977, the
president has a wide range of powers; he may appoint any person, in any position, from
a Minister of a certain Ministry, to a Chairperson of a Board of Directors. Such powers
have formed part of the on-going debate in the forums about the constitution reform.
67
Shivji et al (n 9 above), 49-50. Some Members of Parliament (MPs) debating the 2011/
2012 Budget estimates of the Vice President’s Office appealed to the Union and
Zanzibar governments to make public all documents related to the formation of the 26
April 1964 Union between then Tanganyika and the Isles for their perusal and
digestion. The MPs said the time had come for the two governments to unveil the said
documents in a move to end controversy over the circumstances under which the Union
came into being. See J Tarimo ‘Open Articles of Union to public, demand MPs’ The
Guardian 8 July 2011 1. Yet, it is worthwhile to note that, since the 20th Century, to
date, there have been divergent views by the government officials, scholars and citizens
on the Union question; first, its legality as will be depicted in the subsequent headings
(a glimpse of the Union began is given hereinafter), and second as to whether Tanzania
is a federation. Shivji states that, ideally, Nyerere would have preferred that the
Zanzibar ‘headache’ be resolved within the larger federation of East Africa. When this
failed, Nyerere, the pragmatic politician that he was, turned to the union of 300 000
islanders with 10 million mainlanders. It has been a puzzle as to when exactly the
decision to form the Union was made since the whole process was shrouded in great
secrecy. A year after the formation of the Union, (ie in 1965) at the Tanganyika African
National Union-Afro Shiraz Party (TANU-ASP) electoral conference where Nyerere
was nominated by Karume to stand for the presidency of the Union, Nyerere told the
story of how the Union came about and since then he often repeated it. Nyerere and