After Zanzibar Referendum Comes Constitution Dilemma

The constitutional amendments in Zanzibar on Monday evening, which redefined its territory as a sovereign state within the United Republic of Tanzania, have reignited the controversy over the future of the Union.

Constitutional experts faulted the changes endorsed by the House of Representatives, which they charged, were "meant to neutralise the Union, if not to kill it systematically".

With the Constitution of the United Republic proclaiming Tanzania to be a country resulting from the merger of Tanganyika and Zanzibar, as the one and only sovereign state, the experts were of the opinion that the recognition of Zanzibar as a state would "steal Tanzania's statehood". And they warned that this could herald the break-up of the United Republic of Tanzania.

An extraordinary session of the House of Representatives on Monday evening overwhelmingly passed 10 amendments, which also paved the way for the formation of a government of national unity in Zanzibar after October 31 General Election.

According to the amendments, Sections 1 and 2 of the Zanzibar Constitution, which previously identified Zanzibar as part of the United Republic of Tanzania, have been deleted.

The changes redefine Zanzibar is a state formerly known as the 'People's Republic of Zanzibar' with its territory composed of Unguja, Pemba and all the small surrounding islands, as it was before the 1964 merger with Tanganyika.

Moving the Constitutional Amendment Bill, the State Minister (Constitution and Good Governance), Mr Ramadhani Abdallah Shaaban, said: "The new clause stipulates that Zanzibar is among the two countries that form the United Republic of Tanzania."

But a senior law lecturer at the University of Dar es Salaam, Dr Sengondo Mvungi, described the amendment as the biggest threat ever to the existence of the United Republic of Tanzania. He explained that the House of Representatives had disregarded the laid-down procedure by altering constitutional provisions touching on the Articles of the Union.

Dr Mvungi cited Article 98 (b) of the Union Constitution. Under the article, any Bill for an Act to alter any provisions of the Constitution or any provision of any law relating to any of the matters specified in List Two of the second schedule to the Constitution shall be passed only if it is supported by the votes of not less than two-thirds of all Members of Parliament from Tanzania Mainland and not less than two-thirds of all MPs from Tanzania Zanzibar.

And the matters specified in List Two, which require to be supported by two-thirds of all MPs from Mainland Tanzania and two-thirds of all MPs from Zanzibar, include the existence of the United Republic of Tanzania.

"This article of the Constitution cannot be altered by the Zanzibar House of Representatives alone. They have totally no mandate or authority on this issue," Dr Mvungi said.


He also pointed out that the fact that President Jakaya Kikwete had already dissolved Parliament in readiness for this year's elections, meant there was no room to initiate such changes.

Contacted for comment last evening, State Minister Shaaban strongly defended the amendments, saying they were meant to emphasize Zanzibar's position as a partner state in the United Republic and not a part of the Union Government.

"The United Republic is nation. The amendment means that Zanzibar is a second country forming the union between Tanganyika and Zanzibar. What we have done is to confirm our state boundaries," he said.

For his part, Dr Mvungi said that declaring Zanzibar one of the two countries that form the United Republic of Tanzania was to change the structure of the Union to form a confederal authority between the people to Zanzibar and Tanganyika.

"This means that Tanganyika retains its sovereignty and statehood and so does Zanzibar. So you form a confederation. The statehood automatically moves out of that the United Republic of Tanzania and goes to Zanzibar and Tanganyika," he explained.

If the amendments are implemented there is not going to be a united republic of Tanzania. The nation has broken up," he said in a conversation with The Citizen on Monday before the Zanzibar approved.

Zanzibar's Attorney General could not be reached for comment yesterday, but a senior official in his Chambers said the amendments were the 10th on the Zanzibar Constitution. The changes, he clarified, only affected the Zanzibar Constitution and had nothing to do with the Union.

When The Citizen pointed out that the amendment of Union matters needed approval by two-thirds of the MPs from both Tanzania Zanzibar and Mainland Tanzania, Mr Saleh Mbarouk, said: "The interpretation of the changes will be given by the Attorney General. What I know is that members of the House of Representatives are not forbidden to pass such amendments."

But the Union Government's Deputy Attorney General, Mr George Masaju, contacted in Dar es Salaam to comment on the developments, said he had not seen the final draft of the Bill passed in Zanzibar on Monday.
"I'm hesitant to address this matter, as I have not seen the final draft. Give me time to find out what exactly has been passed by the House of Representatives in order to comment on the issue," he said.

Another lawyer, who asked not to be named because of the sensitivity of the matter, said the changes had violated the Constitution. He said Article 98 (b) of the Union Constitution stipulated the procedure for effecting amendments touching on the existence of the United Republic.

"Strictly speaking, such changes do not any value in the eyes of the law. They actually do not exist. They are unconstitutional," he said.

The president of the Tanganyika Law Society (TLS), Mr Felix Kibodya, speaking in his personal capacity, said although he strongly supported the reconciliation process that had culminated in the constitutional changes, the declaration that "Zanzibar is a state has gone beyond the aim of bringing Zanzibaris together".

He said that for the changes to have any legal authority, they must be endorsed by the Parliament of the United Republic of Tanzania, as specified in Article 98 (b).

"My understanding is that for the amendments making Zanzibar a state to have legal effect, they must have the blessings of parliamentarians from both sides through a procedure stipulated in our constitution," he said.

He added: "How can Zanzibar be a state without a commander-in-chief of the armed forces? How can it be a country without defence minister, Inspector General of Police or a foreign minister?"

He said though it was crucial to bring about peace and unity in the Isles, this should not come at the expense of the Union. "Zanzibar is a part of the United Republic of Tanzania," he insisted.

Under the newly amended Zanzibar Constitution, the Isles' President has been given powers to mark the territory's borders without consulting the Union Government.

According to the laws enacted by the House of Representatives, for effective implementation of government responsibilities, the Zanzibar leader is also empowered to divide the Isles into regions, districts and other areas.



AllAfrica.com