50 YEARS OF CONSTITUTIONAL EXPERIMENT

As Tanzanians celebrated fifty years of independence on 9th December 2011, they also engaged in an animated national debate over constitutional developments anticipated for 2012 (see TA No 99). This is not for the first time, nor are the basic issues unfamiliar: citizens are concerned to improve democratic structures, protect human rights and clarify the uneasy relationship between the mainland and Zanzibar.

In 1961 the Trust Territory of Tanganyika, to most people’s surprise, overtook its neighbours Kenya and even Uganda in the race to independence but, following the pattern of previous British decolonisation, paradoxically became for the first time part of the dominions of HM Queen Elizabeth II, represented locally by Governor-General Turnbull! (Zambia broke the mould in 1964, when it passed overnight from Protectorate to independent Republic.) Tanganyika also joined the Commonwealth (Nyerere’s ultimatum on apartheid having earlier forced the withdrawal of South Africa, a founder member of the organisation).

More surprises lay ahead. A month later, in a move unique among African nationalist leaders, Prime Minister Nyerere (still awaiting a biographer) resigned, replaced by his loyal deputy, the late Rashidi Kawawa. Nyerere spent much of 1962 as leader of the Tanganyika African National Union (TANU), which dominated Parliament and therefore controlled the Government, visiting local party branches to study and strengthen its democratic structures, based on ten-house cells at village level. Following constitutional amendments, Tanganyika became a Republic on the first anniversary of independence and Nyerere was installed as President, to lead the Government and country for more than 20 years.

Zanzibar gained independence on 9th December 1963; a month later the Sultan and Constitution were overthrown by revolution and the Afro-Shirazi Party (ASP) assumed control. In April 1964 the Articles of Union between Tanganyika and Zanzibar were signed, establishing the United Republic which later adopted the name Tanzania. Thus began a unique and troublesome quasi-federal relationship, which continues to dog national politics.

In 1965, in accordance with a TANU and Government decision and following a draft prepared by a Presidential Commission, the innovative one-party Constitution was adopted (see TA No 4). Redrafted in 1977, when TANU had become Chama Cha Mapinduzi (CCM), it lasted for over 25 years and still casts its shadow. It effectively subordinated national organs like the National Assembly to the primacy of Party organs. At elections voters chose between two TANU candidates selected by primary (party) elections, although in Presidential elections they voted for or against the single candidate nominated by TANU. Uniquely, Tanzania was a one-party state with two ruling parties (CCM on the mainland, ASP in Zanzibar), two Constitutions (Zanzibar adopted its own in 1979), two Presidents, two Parliaments and two governments.

Tanzanian leaders had rejected the inclusion of a justiciable Bill of Rights in the independence Constitution, but to protect citizens the 1965 Constitution adopted a novel form of collegiate `Ombudsman’ – the Permanent Commission of Inquiry, to investigate citizens’ complaints of maladministration. The only other Ombudsman then in the Commonwealth – in New Zealand – provided the model for the law Tanzania adopted. Not until 1984 did Parliament respond to public political pressure and add the Bill of Rights, enforceable by the courts, to the Constitution. The celebrated Arusha Declaration 1967 had constitutional implications, especially in the Leadership Code, as did the elaborate but ill-fated project of decentralised government in the 1970s.

Major constitutional change followed the Nyalali Presidential Commission (1991) (TA 50). This reflected and focussed public opinion in favour of a multi-party system, which was established by constitutional amendments. However, loyalty to the former single party CCM has given it overwhelming Parliamentary majorities at successive General Elections, only slowly eroded by the several opposition parties.

Jim Read

Now, for the latest information on the constitutional debate we are grateful to Frederick Longino who has brought us up to date:

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