TANZANIA

Present-day Tanzania came to being in 1964 as a result of the union of the People’s Republic of Zanzibar and the Republic of Tanganyika. For the limited purposes of this chapter and due to space limitations, the following brief review of the recent constitutional experience of the country will begin with developments in Tanganyika, by far the larger and dominant part, and include Zanzibar as part of the union without attempting to outline its very special history.

The 1961 Independence Constitution of Tanganyika followed the British parliamentary model, with a prime minister drawn from the majority party, a government subject to the supremacy of parliament, rather than the constitution as such, and an independent judiciary. The constitution also provided for a “governor-general” who represented the Queen of England as the head of state (Shivji 1998: 24). But that constitution did not provide for a bill of rights. This was the standard model for former British colonies worldwide, and tended to prompt similar responses from African leaders soon after independence, as discussed later in this chapter. As elsewhere in Africa also, the 1961 Independence Constitution was shaped by the broader economy of external political relations and pressures, reflecting the negotiation between colonial powers and nationalist leaders, rather than the relationship between people and the state. Moreover, the “eleventh hour conversion of colonial rulers to constitutionalism was not without ulterior motives,” which included seeking to promote a liberal ideology as a barrier to the threat of communism (1998: 24).

Another source of tension from the beginning was that the imposition of liberal ideology, with the weak government it implied, cleared the ground for privileged classes to disproportionately control power, while the elite who came to power preferred a strong state.

Two years later, the Articles of Union between the People’s Republic of Zanzibar and the Republic of Tanganyika were signed. Shivji suggests that external compulsions and pressures played a critical role in the establishment of the union, more than its being a “logical outcome of long standing relations between the peoples of Zanzibar and the mainland” (1998: 26). The Acts of Union of 1964 amended the 1962 Republican Constitution, which was renamed the Interim Constitution of the United Republic of Tanganyika and Zanzibar, 1964 and was soon merged into the Interim Constitution of Tanzania 1965.

The 1965 Interim Constitution was passed not by a constituent assembly but as an ordinary act of parliament, once again bypassing “the people and the public debate in the process of adopting a new constitution” (29). The 1965 Constitution formally recognized the constitutional status of the party state in Tanzania, while still failing to include a bill of rights. A presidential commission appointed by Nyerere in 1964 to inquire into certain aspects of the party state gave the following reasons for that omission: (a) A bill of rights would constrain the efforts of the new nation to establish order and security, (b) It could become a source of conflict between the judiciary and the executive. Since the judiciary consisted of expatriate judges (as explained later in this chapter), and was not really an “indigenous institution,” giving the judiciary political power over the executive might run inimical to the objectives of law and order, (c) It could stand in the way of the government’s agenda for economic development and the social restructuring that such development might well entail.

The Interim Constitution underwent several amendments between 1965 and 1977 that brought a greater number of matters under union control, hence, limiting the autonomy of Zanzibar. The 1975 amendment affirmed party supremacy, which “was only a constitutional formalisation of what had already occurred de facto.... It is not so much that the Party became supreme and the national assembly was reduced to rubber stamping.

In 1982, proposals for constitutional amendments were brought to the public for a year-long countrywide debate. The moment was significant, although the proposals were not radical in themselves—”they proposed to modify somewhat the powers of the president, enhance the stature of the Parliament and consolidate the Union” (32). But the debate, which was not confined to those proposals, also produced two major themes, namely, the democratization of the state including a bill of rights, and a federal structure of the union (32). Zanzibar was the main site of the demand for autonomy, as President Aboud Jumbe called for the Special Constitutional Court to be convened, where he intended to challenge the 1977 Constitution in the light of the 1964 Articles of Union” (32). Nyerere confronted Jumbe at a National Executive Committee meeting, and as a result Jumbe had to resign. In that way, the national debate was cut short after eight months.

The bill (for the Fifth Constitutional Amendment, 1984) based on the preceding debate did include a bill of rights, but that was more a compromise with the leadership of Zanzibar than in response to public demand. Since the leaders of Zanzibar were determined to have a bill of rights in their new constitution, “it would have been politically foolhardy to have a bill in one part of the union and not another” (32). The bill, which drew on international human rights documents, makes civil and political rights provisions enforceable by the courts, though “circumscribed by claw-back and derogation clauses” (32). Social and economic rights, on the other hand, were presented as directive principles that are not supposed to be enforced by the courts. In Shivji’s view, ‘just as the liberal 1961 Constitution was a superimposition on the authoritarian colonial legal order, the 1984 bill of rights was a super-imposition on an otherwise authoritarian polity described by the 1977 Constitution” (1998: 33).

The next significant stage in the constitutional experience of Tanzania is the multi-party debate of 1990. Once again, it seems, the impetus for the multi-party debate and its implementation came from “the global context of the crumbling of the socialist block and the onslaught of western imperialism to re-establish its world hegemony” (35). It is interesting to note here that, as shown by the case of several African countries, including all cases considered in this chapter, the impact of international power relations can be ambivalent. While the unstated agenda of the major powers may be neocolonial hegemony, international forces can result in pressure for domestic consensus as much as they can inhibit consensus-oriented debate, as happened during the cold war period.

Inside Tanzania, the National Executive Committee of the ruling CCM under Nyerere provided the initiative for the multi-party debate to be taken to the public arena, the ruling party organized some seminars, and the press joined in.

Shiyji also assesses various perspectives on constitution-making in the experience of Tanzania and other African countries, namely, constitution-making as consensus-building, constitution-making as a technical exercise, constitution-making as change (mageuzi) from the party-state to state parties, and constitution-making as tinkering with the status quo (36–39). His own preference, with which I fully agree, is that

the process of arriving at a multi-party political and constitutional order was as important as the establishment of the system itself. That should be a protracted process in which the people are fully involved. In the light of the fact that the previous experience of constitution-making in Tanzania had always been one from the top, it was necessary to reverse the order and establish a new national consensus embodied in a new constitution so as to give it legitimacy on a new basis. Only such a constitution could possibly lay the foundation for a new political order as well as address the problem of transforming the party-state on the one hand and lending acceptability and legitimacy to the union on the other. (37, emphasis added)

In 2005, CCM chose Jakaya Mrisho Kikwete, a former military officer and foreign affairs minister, as its presidential candidate in the general elections. In December 2005 Kikwete was elected president and Ali Mohammed vice president on the same ballot by popular vote for five-year terms. Kikwete achieved 80.3 percent of the popular vote, while his two rivals got 11.7 and 5.9 percept. It is therefore clear that CCM continues to be the dominant political party in Tanzania, but the recent elections also indicate that the country enjoys a dynamic and stable constitutional democratic process. One question I will discuss in the comparative analysis section is whether Tanzania and other African countries which went through similarly agonizing stages had to go through those various “experiments” to arrive at the “right” formula. The following review of the experience of Uganda may help frame that question and related issues for the discussion later in this chapter.