Constitutionalism and Democratic Governance in Africa: - PULP

30 Chapter 2
1977 Constitution. 74 However it should be noted that, the signing of the
Articles of the Union by presidents Nyerere and Karume in 1964 was
without public consent. 75 Besides that, neither the Tanganyika National
Assembly nor the Zanzibar Revolutionary Council was allowed to debate
the essence of the Union. They were only required to grant legal status to
the Articles of the Union. In other words, the Articles of the Union
embodied the aspirations and wishes of the two Presidents rather than
those of the general public. As such the principle of constitutionalism was
paid lip service. 76
73
Gazette of Tanganyika (Government Notice No 243 of 1/5/64) under the signature of
Tanganyika’s Acting Solicitor-General. Aboud Jumbe, who was then a member of the
Revolutionary Council, cannot recall that the Revolutionary Council actually sat and
ratified the Articles. See A Jumbe The partnership: Tanganyika-Zanzibar Union: 30
turbulent years (1994). It is doubtful therefore if the Revolutionary Council together with
the Cabinet of Zanzibar actually made this law as is claimed in this Government
Notice. In law, it can be argued that even if the Articles were not ratified by the
Revolutionary Council, they are binding because the relevant Zanzabari [sic] authorities
have acquiesced (agreed and accepted) in them. But the fact remains that the Articles of
Union were never ratified by the Revolutionary Council of Zanzibar, which, legally, is a
serious flaw. Conversely, Bakary after engaging into a discourse establishing that the
Articles of Union is a treaty, attempts to answer the question as to whether this
international agreement signed by the two executives had a force of law or not. He cites
the case of R v H.M. Treasury and the Bank of England exp. Centro. Com. Times Law
Reports, October 7, 1993, where it was established that, ‘international agreements may
be entered into by the executives, but such agreement [sic] do not ipso facto have the
force of law unless and until they have been expressly adopted and incorporated in local
legislation.’ This means that the Articles of the Union (the Treaty) had to be ratified by
the Government of Tanganyika and the Government of Zanzibar before coming into
force (ie by respective legislative bodies). The Articles of Union themselves provided for
ratification under article VIII of the Treaty. The article implies that there should have
been an enactment by the Parliament of Tanganyika to ratify the Articles and in the
same spirit the Revolutionary Council should also enact a Decree to ratify the Articles.
The requirement of this provision was not followed. Mere discussions on the subject
matter by the Revolutionary Council and the fact that the Revolutionary Council
approved the discussion does not in any way legalise the wrong procedure. Thus it was
only in Tanganyika, as per Tanganyika Legal Notice no 243 of 1964 that ratification
was legally made. The law was not passed by the Revolutionary Council which was at
that time a legislature cum a cabinet. We cannot in law substantiate our arguments with
what the Revolutionary Council Members had said during their deliberations. As once
Lord Denning had said, ‘one could not look at what the responsible Minister has said
in the Parliament or what the Hansard has reported, rather we must look to the
meaning of the legislation (Act).’ There has to be a law enacted by the Parliament of
Tanganyika separately and by the Revolutionary Council separately to ratify the
Articles as required under article VIII of the Articles of Union. See AK Bakary ‘The
union and the Zanzibar constitutions’ in Peter & Othman (n 10 above) 4-6.
74
Shivji (n 55 above) 27. See also Constitution of Tanzania of 1977 (n 1 above) first
schedule. It is worth noting that, ‘every first year law student has been taught that the
Constitution of the United Republic of Tanzania is found in the document called the
Constitution of the United Republic of Tanzania of 1977’. But every law student, I am
afraid, has been mistaught. The Constitution of Tanzania is to be found in, not one, but
two documents: the Acts of Union, chapter 557 of the Laws of Tanzania and the
Constitution of the united republic of Tanzania, Constituent Act 1 of 1977. By the same
token, the Constitution of Zanzibar is to be found in (1) the Acts of Union and (2) the
Constitution of Zanzibar of 1984. See also Shivji (n 67 above) 66.
75
W Dourado ‘The consolidation of the Union: A basic re-appraisal’ in Peter & Othman
(n 10 above) 73-108. See also Ndumbaro (n 64 above) 13.
76 Ndumbaro (n 64 above) 13.