By Evarist Baimu Nyaga Mawalla - Home

The founders of our Union could easily have done that. They could have enumerate thespheres in which the Zanzibar.Government would exercise power and leave the rest to the Union Government. In thatcase the philosophy of changu, changu, changu, chetu,(mine is mine; yours is ours)would have made considerable sense, for everything in and for the Mainland would havethen been a union matter. But that was carefully avoided. Instead the Constitutionenumerates union matters only and expressly declares the rest to be non – union; and thisis so, according to Art 4(3), “For the purpose of the more efficient discharge of publicaffairs…and for the effective division of function in relation to those affairs…”I think,with respect, there is reason to insist on the significance of the division. It is occurs to me,that the fact of the on-union matters on the Mainland side being under the UnionGovernment does not derogate from their character, They remain “matter which concernexclusively that area which before the Union constituted what was then known asTanganyika, and is presently referred to under the constitution as Tanzania Mainland, “toquote the Chief Justice again. And since the Constitution also recognizes the necessity“for the effective division of function” in the discharge of public affairs in the UnitedRepublic, the appointment of Zanzibaris to positions of authority in non – union mattersin the Mainland could have the effect of blurring that division.That said, however, it is difficult to draw the inference of unconstitutionality,which the Court was called upon to draw, in relation to those appointments. Theprovisions to which I have referred, notably Art. 36(2) and Art. 55(1), do not limit thePresident in his choice of officers or Ministers or in their disposition.The furthest we can go it to fall back to the words “subject to the other provisions of thisConstitution” in Art. 36 (2) and this would lead to the divisions of union and non – unionmatters in Art. 4(3). It can then be suggested that t keep the division effective there is animplied invitation to keep Tanganyika matters Tanganyikan. A breach of the Constition,however, is such a grave and seriours affair that it cannot be arrived at by moreinferences, however at attractive, and I apprehend that this would require proof beyondreasonable doubt. I have therefore not found myself in a position to make the declarationsought and I demist from doing so.Finally, each party prayed for costs, I cannot find my way to award any. In thefirst place the record suggests that this was a legal aid case and I don’t quite see how thequestion on costs. Additionally, I think this was a balanced case where both sides wonand lost. The parties will therefore bear their respective costs.(E.S.K RUGAKINGIRA)JUDGEDODOMA24/10/1994228