Issa G. Shivji: Problems of Constitution-Making As Consensus-Building: The Tanzanian Experience

A. A Review of Constitutional Developments: 1961-1990

Tanzania’s independence was a negotiated process (except for the Zanzibar part). Its first independence constitution, as elsewhere in Africa, was a symbolic representation of the end of colonialism and the installation of state sovereignty [Okoth-Ogendo ibid., Nolutshungu 1991, Romdhane 1991]. The constitution constituted sovereignty in the international arena as opposed to constructing a ‘national’ consensus domestically. The independence documents, as we know, were more of a compromise between the colonial rulers and nationalist leaders rather than an embodiment of a compact between the new rulers and their people [Mwaikusa 1995, 59-64]. The latter consensus which found expression in nationalist struggles and national-building ideologies [Wamba 1991] was crystallised on terrain other than liberal ideologies of constitionalism. Yet most independence constitutions hatched in the colonial office were constructed on the basis of liberal principles of the Westminster model. The 1961 Independence Constitution [FN 2] of Tanganyika was a classical representation of this model with one glaring omission, a bill of rights. In this omission the Independence Constitution was much closer to the Westminster model as it operates in the United Kingdom which does not have a bill of rights.

The Independence Constitution provided for a Governor General representing the Queen as the head of state; an executive prime minister from the majority party in parliament, a cabinet of ministers collectively and individually responsible to the parliament and an independent judiciary. This liberal constitution was superimposed on an otherwise despotic colonial legal order. Imperial rule in the colonies made no pretence of liberal constitutionalism [Ghai 1972]. The eleventh hour conversion of colonial rulers to constitutionalism was no without ulterior motives. [FN 3] Internationally, the liberal independence constitutions were cast in the cold war ideological struggles. Liberal ideologies were supposed to be the bulwarks in the defence of the ‘free world’, against communist totalitarianism. Internally, weak governments that liberal constitutional orders implied would leave political power captive to stronger vested interests in civil society which in many colonial economies meant some or other compradorial classes such as settlers (Kenya), merchants (Tanzania) or landed aristocracy (Uganda) [Mwakyembe 1986, 23]. In short, this was a recipe for neo-colonialism [Legal Aid 1985, 12].

The petty bourgeois elites which came to power however were in a hurry - in a hurry to develop, in a hurry to unite the nation. These were the ideologies of developmentalism and nation-building [Shivji 1986, 1 et seq.]. With the benefit of hindsight we now know that the various nation-building ideologies rationalised state-building making state the primary site of accumulation for the petty bourgeoisie. Be that as it may. Strong states unhindered by ‘checks and balances’ became the watch-word of rapid changes in the constitutions which brought them in correspondence with the underlying authoritarian legal order. Defending executive presidency with vast powers that the 1962 Republican Constitution [FN 4] provided, Nyerere wrote in the London Observer:

Our constitution differs from the American system in that it ... enables the executive to function without being checked at every turn... Our need is not for brakes to social change... - our lack of trained manpower and capital resources, and even our climate, act too effectively already. We need accelerators powerful enough to overcome the inertia bred of poverty, and the resistances which are inherent in all societies. (quoted in Mwaikusa ibid., 105]

Indeed the Republican Constitution provided such accelerators by removing virtually all constraints on the exercise of power by the executive and its head, the president. The president combined all the powers previously vested in the Governor General and the prime minister. He was the head of state and head of the government, commander in chief and part of the parliament in that a bill passed by the national assembly could not become law without his assent. The president appointed ministers and the vice-president who together constituted the cabinet. He chaired cabinet meetings and his ministers were responsible to him. Thus the collective and individual responsibility of the ministers to the parliament which was the hallmark of the Independence Constitution was effectively done away with. Thus too the national assembly was left with no teeth to bite the executive. It could not pass vote of no confidence in the government nor could it censure an irresponsible minister since the latter was responsible to the president and not to parliament. The parliament could of course not impeach the president though under certain circumstances the president could dissolve the parliament. In addition the president inherited all the powers vested in the governor by the colonial legislation such as the Deportation Ordinance 1921 [cap. 38], the Collective Punishment Ordinance 1921 [cap.74], the Emergency Powers Order-in-Council 1939, etc. [see generally Martin 1974, 82-99] The independent government added its own piece to the armoury of repressive legislation, the notorious Preventive Detention Act 1962 [cap. 490] under which the president had powers to detain a person indefinitely without trial if he was satisfied that ‘any person is conducting himself so as to be dangerous to peace and good order in any part of Tanganyika, or is acting in a manner prejudicial to the defence of Tanganyika or the security of the State’; [s.2(1)(a)]. [FN 5] All in all, the president was to run the country and exercise his enormous powers ‘in his own discretion and shall not be obliged to follow advice tendered by any other person’ [s.3(3)]. The Republican Constitution set in train what has been graphically termed by Okoth-Ogendo as ‘imperial presidency’ [op.cit].

A word needs to be said about the procedure which was followed in adopting the Republican Constitution which was a new constitution and not an amendment of the Independence Constitution. The pre-existing national assembly of 71 elected (and ten nominated) members of parliament all of the elected members being members of the nationalist party the Tanganyika African National Union (TANU) passed a law giving itself powers to convert the national assembly into a constituent assembly with powers to adopt a new constitution. [FN 6] This mechanism of converting a pre-existing national assembly into a constituent assembly, first applied in Ghana [Bennion 1962, ch.2], effectively sidelined people in the process of constitution-making, a phenomenon which has bedevilled the political process to this day.

The next important landmark in constitutional development was the signing of the Articles of the Union between the then People’s Republic of Zanzibar and the Republic of Tanganyika. A liberal style independence constitution bequeathed to the people of Zanzibar in 1963 independence under a government controlled by an Arab minority [for constitutional developments in Zanzibar see Othman & Shaidi 1981, 181-224].. The constitutional government thus established was overthrown within a month in a bloody revolution which brought to power the Afro-Shirazi Party (ASP) under Abeid Karume in alliance with the Umma Party under Abdulrahman Mohamed Babu. Only three months later Nyerere and Karume respectively on behalf of their countries signed the Articles of the Union to form the United Republic of Tanganyika and Zanzibar eventually renamed Tanzania.

Official historiographers present the union as a logical outcome of long standing relations between the peoples of Zanzibar and the mainland [Warioba & Seaton 1981, .43, preamble to the Articles]. That there were relations of trade, migrations of labour from the mainland to the islands etc. is true. Whether the union was an outcome of this is doubtful. After all, the two (related) peoples had no role in the formation of the union. Even the leaders of the Umma party, supposedly the ASP’s partners in the Zanzibar government, did not know of the union. The historical truth, as has now been amply confirmed by the American president Johnson’s papers, is that the union was a cold calculated strategy of all actors involved in the context of the raging global cold war [Wilson 1987 and Othman 1995, 175,]. For the three East African leaders (Nyerere of Tanganyika, Kenyatte of Kenya and Obote of Uganda) who had come to power through negotiated settlements with their colonial master Britain Zanzibar the hotbed of a radical revolution was a bad example. The British and the Americans could not allow another Cuba on the east coast of Africa. For Karume, the radical and more articulate Umma leaders in his government were a thorn in the flesh. (His first major act after the union was to transfer bodily all of the Umma leaders to the Mainland to take up posts there as ministers or as ambassadors abroad.) Thus coincided the interests of western imperialism with those of the domestic rulers and which found expression in the union.

The Articles of the Union were a masterly piece of legal draftsmanship guided by immediate requirements of power-sharing rather than any grand principles of constitutionalism. Within its eight clauses the Articles of the Union established the basic scheme and structure of the union [Shivji 1990, passim]. Article (i) proclaimed the united Zanzibar and Tanganyika as ‘one Sovereign Republic’ and articles (iii) and (iv) read together provided for two separate governments. There was to be the Zanzibar government (executive, legislature and judiciary) ‘constituted in accordance with the existing law of Zanzibar’ having exclusive authority in Zanzibar on all matters which were not reserved to the Parliament and Executive of the Union or what are now traditionally called ‘non-union matters’. Eleven matters were reserved for the union government. The union government also had exclusive authority over all non-union matters in Tanganyika. Article (iii)(b) provided for two vice-presidents ‘one of whom (being a person normally resident in Zanzibar) shall be the head of the ... executive in and for Zanzibar and shall be the principal assistant of the President of the United Republic in the discharge of his executive functions in relation to Zanzibar’. The Constitution of Tanganyika modified in accordance with the articles so as to provide for the union was to be the interim constitution of the union until such time as a permanent constitution would be adopted. Article (vii) provided for the appointment of a constitutional commission and the summoning of a constituent assembly to meet within one year of the union to adopt the constitution of the United Republic. This was one provision in the articles which could have been potentially used to involve the people of the two parts in the making of the union constitution. In the event, the time for adopting a permanent constitution was indefinitely extended. [FN 7] And, when finally the permanent constitution came to be adopted in 1977, as we shall see below, what mattered was the party and not the people.

The Articles of the Union being a treaty were ratified by the respective legislatures and thus translated into municipal law. In the case of Tanganyika the legislature was the erstwhile independence national assembly (an exclusive TANU body) and in the case of Zanzibar it was the self-appointed Revolutionary Council. The Articles thus ratified became the Union of Tanganyika and Zanzibar Act, 1964 [No.22 of 1964] in Tanganyika and the Union of Zanzibar and Tanganyika Law, 1964 in Zanzibar and together they are cited as the Acts of Union. As this writer has argued elsewhere, the Acts of Union [cap. 557] constituted fundamental basic law, or the constitution of the union [Shivji 1990]. All the later constitutional changes pertaining to the union derive their legal validity from the Acts of the Union which are still in force and scheduled to the 1977 Constitution [Schedule I]. It was under the authority of the Acts of Union that the President passed (s.5(2)) the Interim Constitutional Decree, 1964, [FN 8] modifying the Republican Constitution to accommodate the union. As a matter of fact, the Decree among other, things renamed the Constitution as the ‘Interim Constitution of the United Republic of Tanganyika and Zanzibar, 1964 (article 24 of the Decree repealing and replacing s.69 of the Constitution of Tanganyika). So what was done effectively was that the Parliament first gave powers under the Acts of the Union to one of its components, the President, to amend the Constitution, i.e. the very instrument from which the Parliament derived its authority. In short the Parliament divested itself of its constituent capacity! To a lawyer’s mind this is outrageous and in breach of all known constitutional principles. Tanzania has thus gone through rule by presidential decree albeit for a short period.

The Republican Constitution was modified to accommodate the union and became the 1964 Constitution soon to be merged into the Interim Constitution of Tanzania, 1965. If the Republican Constitution fathered one of the three foundations of the Tanzanian constitutional order, the executive presidency and the Acts of Union founded the two-government union thus laying the second foundation, then the Interim Constitution completed the edifice by erecting the third pillar, the party state, often, ‘mistakenly’, called the one-party state.

On 28th January, 1964 the president Julius Nyerere appointed a Presidential Commission on the Establishment of a Democratic One-party State [Tanzania 1964]. The commission was not to enquire into whether or not the country should go one party. That decision had been made by the National Executive Committee of the ruling party which had also empowered the president to appoint the commission [ibid. 1]. It is interesting therefore to note that that the one party practice had already been in existence even before it was so formalised in the constitution. Following the union, the membership of the commission was expanded to include four members from Zanzibar. [FN 9] The commission was guided by two statements from Nyerere, one on National Ethic and another on Guide to the Commission on a one Party State. The commission followed these statements quite closely in its recommendations except for one or two glaring omissions. One of these becomes quite significant with the benefit of hindsight. Among the questions that the president directed the commission to consider was: ‘How can freedom of the people to form pressure groups for particular purpose be ensured?’. [FN 10] [ibid..5] The commission never considered the question of pressure groups nor placed it before the public in its questionnaire. It certainly made no recommendation on it. In any event, given its adverse recommendations on trade union and co-operatives any positive recommendation on the freedom of the people to form pressure groups would have been inconsistent.

For the first time also the commission articulated forcefully the reasons for the recommendation against including a bill of rights in the constitution [ibid. 30-32] which had been rejected both in the Independence as well as the Republican Constitutions. The commission gave three reasons for rejecting the bill. (1) The nation was young and its institutions fragile. Under the circumstances the government’s hands ought not to be tied in advance by a bill of rights should it find necessary to take measures ‘to protect the nation from the threat of subversion and disorder’ [ibid. 31].. (2) A bill of rights could bring the judiciary and the executive arms of the government in conflict. At the time of independence the judiciary was manned by expatriates. It will be some time before the judiciary was accepted as an ‘indigenous institution’. Under the circumstances to draw the judiciary into a political arena through a bill of rights and let it stand in judgement over the government and the legislature would be counter-productive to the maintenance of the rule of law and impartiality in its application. (3) Finally, the government had dynamic plans for economic development which could require revolutionary changes in the social structure. A bill of rights would invite unnecessary conflict between the political leaders and judges as happened in the United States during the Roosevelt administration in the 1930s. ‘Decisions concerning the extent to which individual rights must give way to the wider considerations of social progress are not properly judicial decisions. They are political decisions best taken by political leaders responsible to the electorate.’[ibid. 31] The commission therefore concluded that individual rights are best protected by the ethical sense of the people rather the ‘cold print of the lawyer’s draft’ [ibid. 31]. It went on to cite with deference the British example where the parliament was sovereign unhindered by any written bill of rights and yet it was unthinkable to interfere with traditional freedoms. The commission’s underscoring of the responsibility of political leaders to the electorate, presumably through a sovereign parliament, however, was ironical in the light of its other recommendations. Its recommendations on the composition of the national assembly, supervision of the trade union [FN 11] and co-operative movement by the party and the raising of the stature and powers of the National Executive Committee of the party were the reinforcement of the beginning of the fall of parliament and therefore the electorate. What the recommendations of the commission amounted to was not really to enhance the sovereignty of the parliament but the pinnacalisation of power in the executive which controlled both the state and the party. This is what was embodied in the Interim Constitution, 1965, which constitutionally ushered in the party state.

The Interim Constitution of Tanzania, 1965 is considered the third constitution of Tanzania. [FN 12] It was never passed by a constituent assembly but rather adopted like an ordinary act of parliament in its constituent capacity as if adoption of a new constitution were an amendment of a pre-existing constitution. [FN 13] ^, [FN 14] Whatever the legal significance of this, the political significance was clear. It once again by-passed the people and a public debate in the process of adopting a new constitution. [FN 15] The Interim Constitution re-enacted all the changes brought about by the union. It incorporated most of the recommendations of the One Party commission. It went on to declare in section 3 that ‘There shall be one political party in Tanzania’ and ‘Until the union of the Tanganyika African National Union with the Afro-Shirazi Party (which United Party shall constitute the one political party), the Party shall, in and for Tanganyika, be the Tanganyika African National Union and, in and for Zanzibar, be the Afro-Shirazi Party.’ All political activity except that of the organs of the state were to be conducted under the auspices of the party. And finally the constitution of the Tanganyika African National Union (only one of the two parties recognised in the constitution, the other being ASP) was made a schedule to the constitution thus even legally endorsing the emergence of a party-state. [FN 16] Indeed the courts, possibly inadvertently, seemed to lend credence to this state of affairs when it decided in the case of Thabit Ngaka [FN 17] that the provision of the TANU constitution providing that every person has a right to wages had force of law. [FN 18]

Between 1965 and 1977 when the permanent constitution was adopted the Interim Constitution was amended several times. Two major trends in these amendments may be highlighted. One, was to increase the number of matters under the jurisdiction of the union government (i.e. union matters) thus constricting the autonomy of Zanzibar. This was arguably contrary to the provisions of the Articles of the Union yet did not then become a constitutional issue between Zanzibar and the Mainland [Shivji 1990, passim]. This was because Karume’s regime in Zanzibar in practice never respected constitutional provisions and conducted its affairs pretty autonomously. Two, further consolidation of the party-state and undermining of the National Assembly in favour of the National Executive Committee of the party. Thus, for example, the 1975 amendment [FN 19] declared the supremacy of the Party by providing that the functions of all state organs shall be performed under the auspices of the party (S.3(4). It changed the composition of the National Assembly such that only 40% were directly elected constituency members, 30% indirectly elected by the National Assembly or the Revolutionary Council and 30% appointed by the Executive (President of the Union and the President of Zanzibar). [FN 20] As had become the pattern, the 1975 amendment in relation to the supremacy of the party was only a constitutional formalisation of what had already occurred de facto. For example, the Arusha Declaration and the subsequent nationalisation were exclusively decided upon by the National Executive Committee. The National Assembly only came in to pass nationalisation legislation after the act of nationalisation had been completed. It is not so much that the Party became supreme and the national assembly was reduced to rubber-stamping. Rather the state and the party merged to form a party-state pinnacalising and concentrating executive power under one and the same chief.

Next came the adoption of the 1977 permanent constitution or the fourth (discounting some of the major amendments in between) constitution in the seventeen year life of the independent nation. The provisions of the 1977 Constitution [FN 20] in themselves are pretty much the consolidation of the trend already discussed -pinnacalisation and concentration of state power in the executive within the party-state under an ‘imperial presidency’ and, in a doubtful fashion, its extension to Zanzibar. What is significant about the 1977 Constitution though is the process of constitution-making. This sheds further light on the relation between the constitution and constitutionalism, between the constitution as a reflection/mapping of power and constitutionalism as the legitimisation of its exercise. This is examined next.

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