| TANZANIA:
KEY HISTORICAL AND CONSTITUTIONAL DEVELOPMENTS
From 1961 at the time of her independence up to 1977, when
she got her permanent Constitution, Tanzania had 5 new constitutions
namely; the Independence Constitution 1961,The Republican
Constitution 1962, The Interim Constitution of the United
Republic of Tanganyika and Zanzibar 1964, The Interim Constitution
1965, and the permanent Constitution of the united Republic
of Tanzania of 1977.
1958: United Tanganyika Party (UTP) was formed
1958: African National Congress was formed
1961: Independence Constitution of Tanzania:
- was based on the West Minister model except that it had
no bill of rights.
- 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 an individually
responsible to parliament and an independent judiciary.
1962: The Republican Constitution of Tanzania marked the beginning
of the presidential system and lay a foundation for “
imperial presidency”, in that it combined in the president
the powers of head of state and government and all the previous
powers of the Governor General and prime minister. He was
Head of State and head of government, commander in Chief of
the army and part of parliament, without whose assent a bill
would never become law. He appointed ministers and the Vice
President, and chaired cabinet.
-The collective and individual responsibility of ministers
shifted from the national assembly to the president. Parliament
could not impeach the President though the President could
under certain circumstances dissolve parliament.
The president inherited all the powers of the governor by
the colonial legislation such as the Deportation Ordinance,
the Collective Punishment Ordinance, the Emergency Powers
Order in Council to which the independent government added
its own repressive laws such as the notorious Preventive Detention
Act, which gave the president powers to detain a person without
trial.
An existing national assembly which converted to a constituent
assembly by an Act of parliament passed the new Republican
Constitution. The 71 elected members of the national assembly,
all elected members of TANU passed a law that allowed them
to convert the national assembly into a constituent assembly
with powers to adopt the new constitution. The procedure sided
lined people and thus lacked political legitimacy or force
of law from the people.
1964: The Union Constitution between Zanzibar and Tanganyika
was a modification of the Republic Constitution of 1962.
The Union was constituted by signing of a treaty called the
Articles of Union by the respective heads of state Mwalimu
Nyerere and Karume. It was ratified by the respective legislative
bodies and became part of the municipal law called the Acts
of Union. Main features of the Acts of Union were the following:
- The Acts of Union were a constitutional instrument controlling
both the Union and Zanzibar Constitutions.
- They established a 2-government Union . 11 items were placed
under the jurisdiction of the Union legislature and executive
and remained matters under the exclusive jurisdiction of the
Zanzibar government. The Union executive was to operate in
Zanzibar in relation to union matters through the Zanzibar
president who by virtue of his position was also vice president
of the Union.
- The Acts provided for a procedure for the adoption of a
permanent constitution through the appointment of a constitutional
commission followed by a constituent assembly, in order to
allow some people participation in the making of the Union.
Unfortunately the one-year period that was specified in the
original articles came to some 13 years, when a constitutional
commission and Constituent assembly were formed albeit in
a fashion that almost sidelined people participation. The
people have never had opportunity to debate the needs, structure
and division of power of the union.
1964: The Interim Constitution of the United Republic of
Tanganyika and Zanzibar (The Third Constitution of Tanzania)
It was a modification of the Republican Constitution and renamed
by presidential decree. This presidential authority to make
the constitutional changes was derived from the Acts of Union.
It was never passed by a constituent assembly but was adopted
like an ordinary act of parliament. This constitution laid
the foundation for the two-government union.
1965: The Interim Constitution 1965: formalized the one party
state and re-enacted all changes brought about by the Union.
The Constitution declared the Afro-Shirazi the party for Zanzibar
and TANU for Tanganyika. The Constitution of TANU was made
a schedule to the Constitution thus legally endorsing the
emergence of a party state. The 1965 Constitution was enacted
by an ordinary Act of parliament an equivalent of an amendment
of the Constitution repealing an existing Constitution and
establishing a new one. It was yet another example of lack
of constitutionalism and participation of the people.
1965-1977: Several amendments were made to the Interim Constitution
before the permanent Constitution was adopted. Notable were
2 amendments.
- There was an increase in the number of matters under the
jurisdiction of the Union government, which led to further
constriction of the autonomy of Zanzibar.
- The second amendment was the consolidation of one party
state and the undermining of the National Assembly in favour
of the National Executive Committee of the Party. The 1975
amendment (Act 8 of 1975) for instance declared the supremacy
of the party by providing that all functions of the all state
organs were to be performed under the auspices of the party,
a formalisation of what had already happened de facto.
-The 1977 Permanent Constitution / The Fourth Constitution
concentrated state power in the executive within the party
state under an imperial presidency it was made with no public
debate or consultation. It for the first time recognized the
monopoly of politics vested in the CCM, which by then emerged
as single party in the whole union. The 1977 constitution
rests on the 3 pillars namely imperial presidency, the two-union
government and the one party state.
5 February 1977: The two existing political parties Tanganyika
Africa National Union (TANU) and Afro Shirazi Party (ASP)
merged to form Chama Cha Mapinduzi (CCM)
16 March 1977: After the merger of the TANU on the mainland
and ASP in Zanzibar; the President of the United Republic
of Tanzania appointed a 20-person joint party committee headed
by Thabit Kombo to propose a new constitution. The same party
Committee was appointed as the constitutional commission in
accordance with the Acts of Union on March 25, 1977. It within
a short time made and sent proposals to the NEC of the party,
which adopted them in a day, in camera.
16 March 1977: The president appointed the Constituent Assembly
was on the same day as the Committee, to discuss and enact
the new constitution. The bill for the new constitution was
published 7 days before the Constituent assembly met to discuss
it and the constituent assembly enacted the Constitution in
3 hours after it was presented to it.
Amendments of the 1977 Constitution: The Fifth Constitutional
amendment as an exception to the rule. This 1983-4 constitutional
debate was a fine example of public participation in constitution
making because it was initiated by the NEC of CCM contrary
to the usual practice where the NEC made decisions and asked
government to implement them. Secondly, contrary to previous
practice, a public debate on the party’s proposals was
invited and a year assigned for the purpose. Thirdly although
having a bill of rights had not been part of the proposals,
it was included as a result of public demand. The debate was
therefore the only one of its kind in the constitutional history
of Tanzania. As a result of the debate there demands for more
autonomy of Zanzibar which threatened the party and led to
announcing a “ pollution of political atmosphere forcing
the then leadership of Zanzibar to resign.
1985: Mwalimu Julius Nyerere stepped down voluntarily as
Head of State of Tanzania and Ali Hassan Mwinyi succeeded
him as Head of State.
1990: Salmin Amour replaced Abdul Wakil as President of Zanzibar
and 2nd Vice President of the Union
February 1991: The Presidential Commission on Single Party
or Multiparty System in Tanzania, 1991 popularly known as
the Nyalali Commission, was established by President Mwinyi
March 1991: The Nyalali Commission was inaugurated. It was
constituted of 22 Commissioners, with equal membership of
ten members each from both the Mainland and the islands, and
one Chairperson and a Vice Chairperson. Its main terms of
reference were to collect people’s views on whether
Tanzania should continue with the Single Party System or adopt
a Multi-party system.
1992: the Nyalali commission made recommendations to amend
both the Union and Zanzibar Constitutions, to make the whole
of Tanzania a multi-party state.
The Eight Constitutional Amendment of 1992 paved way for
a multi party political system, following the recommendation
of the Nyalali Commission to adopt multipartism. The constitutional
amendment changed the composition of the National Assembly,
which consisted of elected members. Women representatives
who were 15% of the total membership were to be appointed
by their parties. There were to be 5 members elected from
the Zanzibari House of Representatives from among themselves.
The National Electoral Commission members were to be appointed
by the President. Instead of being a member of CCM as before,
parliamentary and presidential candidates could be nominated
by any registered party, which meant that independent candidates
could not stand for elections any more. Matters to do with
the registration of political parties were added on the list
of Union matters making them 22.
The Ninth Constitutional Amendment came six months later.
It provided for the election of the president and his removal
by way of impeachment. It also provided for post of prime
minister and the passing of a vote of no confidence in him
by the National Assembly.
The Eleventh Constitutional Amendment addressed the issue
of vice –president, following the report of the Bomani
Committee. The system of running mate was introduced that
paired a presidential and vice- presidential candidate. This
meant that the President of Zanzibar ceased being an automatic
Vice president of the Union but became a member of the Union
cabinet.
The Twelfth Constitutional Amendment 1995 was passed before
parliament was dissolved before the October 1995 general elections.
It declares the president of the Union, and the President
of Zanzibar as the Vice President of the Union and the Prime
Minister prime leaders required to take oath to defend, protect
and nurture the union.
1995: Ali Hassan Mwinyi stepped down as Head of State having
constitutionally completed two terms in office and Benjamin
William Mkapa was elected as Head of State.
October 29, 1995: first presidential and parliamentary elections
under multiparty system, 13 political parties contested.
November 1995: After irregularities at some polling station,
National Election Commission of Tanzania annulled the election
vote in seven Dar es salaam constituencies and arranged for
a re-run.
November 13, 1995: Ten opposition parties announced a boycott
of the repeat elections and all opposition presidential candidates
withdrew.
November 17, 1995: A re-run of the elections took place and
CCM emerged victor with 75% of the vote.
1998: the Union President appointed a 16 member Committee
led by Justice Kisanga to look at the Union Constitution and
make necessary recommendations.
April 2000: The Thirteenth Constitutional Amendment
It introduced the following changes:
- Prior, a candidate needed 50% of votes in presidential
elections to be declared president of the United Republic;
only a simple majority was required to be declared president
- Before, the President had no power to nominate any body
to parliament all members of parliament except the Attorney
General, women in special seats and representatives of the
Zanzibar House, were elected form constituencies. The Constitutional
amendment allowed the President to nominate up to 10 members
of parliament
- Increased the number of special seats fro women from 15%-
20%, depending on the declaration of the National Electoral
Commission from time to time, with the consent of the president
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