Mohamed Said
JF-Expert Member
- Nov 2, 2008
- 21,796
- 31,808
The article by Hon. Pius Msekwa, former Speaker of the Parliament of the United Republic of Tanzania and of course the staunch cadre of the Ruling Chama cha Mapinduzi which was circulating in the social media in recent days calls for open debate on the powers of the President of the United Republic of Tanzania in relation to Zanzibar affairs.
In that article Hon. Msekwa argues that the President of the United Republic of Tanzania has no powers to resolve the political and constitutional crisis which was triggered by the purported nullification of the Zanzibar General Elections which were held on 25 October 2015. The reason he puts forward is that Zanzibar election is a " non-union matter" and that the President of the United Republic of Tanzania cannot interfere with what he termed as "internal affairs" of Zanzibar ; and that the President of the United Republic of Tanzania has authority on Zanzibar only on "Union Matters" He later submitted that those who expect the President to intervene and resolve the crisis do not understand the "unique" nature of the Union between Zanzibar and Tanganyika. And this, he said, is what prompted him to make "clarification" so that people will be educated on the unique nature of the Union. He went on to remind all on the importance of respecting the Constitution and he impliedly caution all those who call on the President to intervene, as doing so would amount to violation of the Constitution.
On reading his arguments you get a clear impression that Hon. Msekwa is obviously on a special mission to shield President John Pombe Magufuli in the wake of International pressure which is heavily mounting on him. Hon. Msekwa mentions MCC saga as an example. I regret that the arguments he puts forward are fatally misleading and devoid of any constitutional merit.
But before going into the misleads which he committed, I wish to agree with him on one point he made; that election is not a "union matter". This is absolutely correct and is evidenced by the fact that each side of the Union has its separate election laws ( Election Act No 11 of 1984 for Zanzibar and Election Act No 1 of 1985 for elections of Tanzania Mainland and those of the United Republic) and both parties of the Union have separate election managing bodies ( Zanzibar Electoral Commission for Zanzibar and National Electoral Commission for the United Republic of Tanzania and for Tanzania Mainland elections)
Actually the almost same issue, whether a law on election/referendum which was passed by the Parliament of the United Republic of Tanzania would extend to Zanzibar emerged with hot debate in the House of Represantative in last year during the tabling of the Referendum Act passed by the Union Parliament specifically for the conduct of the referendum on the Proposed Constitution. Members of the House of Representative from the Civic United Front objected to it on the ground that election and referendum issues are not "union matters" and as such the Parliament of the United Republic of Tanzania had no powers to extend to Zanzibar any law enacted by it on "non-union matters" They argued that referendum was not a "union matter" and that Zanzibar has its own permanent legislation on the conduct of referendum (Referendum Act No 6 of 2010). Tanzania Mainland to date has no legislation on the conduct of referendum. The argument by Hon Msekwa would have been more relevant and appropriate at that opportune time. But at that time the move was beneficial to a greater cause of usurping through manipulations all the powers and authorities of Zanzibar by making them "union matters" and finally rendering Zanzibar an empty shell, a long time project which is moving on at a regulated pace. But this time around Tanzania Mainland is about to suffer, so his misleading constitutional "clarification". I will explain why the clarification is misleading in the following paragraphs:
Firstly, elections in Tanzania are the preserve of political parties only. Under the Constitution of the United Republic of Tanzania of 1977 and the Zanzibar Constitution of 1984 no one is allowed to contest for any political post in Tanzania unless he/she is a member and has been recommended by a fully registered political party. And matters concerned with registration and management of political parties is a "union matter" and therefore cannot be left to Zanzibar as its "internal affair" as Hon Msekwa termed it. And the law is very clear on this. Political parties must be national parties. Though we have different elections in Tanzania Mainland and Zanzibar but all are contested by same political parties which are under the control of the President of the United Republic of Tanzania. Thus, his role on Zanzibar election. Politically indeed, President John Pombe Magufuli cannot disassociate himself from the conduct of his Party in Zanzibar. If the President controls the political parties he is also related to all activities of those parties including elections, which is basically the reason why political parties are in existence.
Secondly, it would have been helpful to know Hon. Msekwa's understanding of what constitutes an election , because election is a combination of so many things. It is not the voting exercise only. Almost all election activities, such as registration process, campaign and others go hand in hand with the question of peace and security. They are hand in glove. They cannot be separated. Peace and Security is a "union matter" and is under the supreme command of the President of the United Republic of Tanzania. For example the Army which reportedly put Bwawani Election Centre under siege was under the command of Union President who is the Commander In Chief. The Police who reportedly disappeared with the Vice Chairman of ZEC (who also happens to be the sitting Judge of the High Court of Zanzibar) and put him in custody for several hours is under the control of the Union President. Its difficult to understand how such a President can be exonerated from Zanzibar election.
Thirdly, election in modern democratic world is the way of winning International reputation and credibility in the world community. The President of the United Republic of Tanzania is the Head of State whose role is to ensure that the United Republic of Tanzania's image is not tarnished internationally, whether such a clout emanates from a "union matter" or "non union matter" from whichever side of the Union.
Lets not forget that International Relations is a "Union Matter". If the reputation of the URT is affected internationally it is not a defense that the act or omission is on a "non union matter" originating from Zanzibar.
Generally speaking, the President of the URT has three major constitutional roles ; he is the Head of State, Commander In Chief and leader of the Government/Executive of the United Republic. In his first two roles he is responsible for each and everything happening in Zanzibar , whether on a "union matter" or on a "non union matter". In those first two roles there is NO SEPARATION between "Union Matters" and "Non Union matters" The separation comes in his third role.
Moreover, in accordance with the Constitution of the United Republic of Tanzania the President of the United Republic of Tanzania in his capacity as the Commander In Chief is entrusted with all the organs which deals with the security of the State. He is in charge of the Army, the Police and the Intelligence which puts him in the peculiar position to know each and every step which took place before, during and after election of Zanzibar. No one has the means to know all the "files" on Zanzibar election than the President of the United Republic of Tanzania. That is why the President is under legal and moral duty to resolve the Zanzibar crisis ; he can not be a bystander or an intruder. To the contrary if he choses to remain indifferent he would be risking putting himself in a position as privy to the conspiracy of the highest order.
Hon Msekwa wrongly tries to use the Constitution to shield President Magufuli against international calls for him to intervene in Zanzibar crisis by exercising his powers as Head of State and Commander In Chief. Any attempt to try maneuvering exit from the crisis at home and be ready to resolve crisis at a neighboring countries , such as Burundi, Comoros and the DRC, will only make an unpleasant impression of the type of leadership we have.
Lastly I would like to end by quoting Hon Msekwa in his article published in 1994 titled "An Analytical History of the Two-Government Structure of the United Republic of Tanzania" when he correctly stated:
"The total effect of these Presidential enactments was that Tanganyika had indeed been decreed out of existence, and former Tanganyika had effectively assumed the status, the powers and the functions of the United Republic of Tanzania, while Zanzibar remained as Zanzibar. It was a kind of "divine transformation" whereby Tanganyika was suddenly transformed (by the above cited decrees) to become the United Republic of Tanzania; instead of remaining as an equal partner with Zanzibar in the new Union...As a direct consequence of Tanganyika having thus legally assumed the status and responsibilities of the United Republic, she automatically became obligated to meet all the expenses of the Union, thus treating Zanzibar as a kind of INVITED GUEST in the Union. A very abnormal situation had been created."
Under the Law of Tort principle of "Occupiers Liability" the host is always under legal obligation to ensure the safety of the guest. Considering the situation prevalent in Zanzibar in the context of the above quoted phrase isn't it enough to create responsibility on THE HOST/THE OCCUPIER to ensure the safety of the GUEST?
Awadh Ali Said
Advocate of the High Court of Zanzibar
Former Member of the Constitutional Review Commission
Former President of Zanzibar Law Society
In that article Hon. Msekwa argues that the President of the United Republic of Tanzania has no powers to resolve the political and constitutional crisis which was triggered by the purported nullification of the Zanzibar General Elections which were held on 25 October 2015. The reason he puts forward is that Zanzibar election is a " non-union matter" and that the President of the United Republic of Tanzania cannot interfere with what he termed as "internal affairs" of Zanzibar ; and that the President of the United Republic of Tanzania has authority on Zanzibar only on "Union Matters" He later submitted that those who expect the President to intervene and resolve the crisis do not understand the "unique" nature of the Union between Zanzibar and Tanganyika. And this, he said, is what prompted him to make "clarification" so that people will be educated on the unique nature of the Union. He went on to remind all on the importance of respecting the Constitution and he impliedly caution all those who call on the President to intervene, as doing so would amount to violation of the Constitution.
On reading his arguments you get a clear impression that Hon. Msekwa is obviously on a special mission to shield President John Pombe Magufuli in the wake of International pressure which is heavily mounting on him. Hon. Msekwa mentions MCC saga as an example. I regret that the arguments he puts forward are fatally misleading and devoid of any constitutional merit.
But before going into the misleads which he committed, I wish to agree with him on one point he made; that election is not a "union matter". This is absolutely correct and is evidenced by the fact that each side of the Union has its separate election laws ( Election Act No 11 of 1984 for Zanzibar and Election Act No 1 of 1985 for elections of Tanzania Mainland and those of the United Republic) and both parties of the Union have separate election managing bodies ( Zanzibar Electoral Commission for Zanzibar and National Electoral Commission for the United Republic of Tanzania and for Tanzania Mainland elections)
Actually the almost same issue, whether a law on election/referendum which was passed by the Parliament of the United Republic of Tanzania would extend to Zanzibar emerged with hot debate in the House of Represantative in last year during the tabling of the Referendum Act passed by the Union Parliament specifically for the conduct of the referendum on the Proposed Constitution. Members of the House of Representative from the Civic United Front objected to it on the ground that election and referendum issues are not "union matters" and as such the Parliament of the United Republic of Tanzania had no powers to extend to Zanzibar any law enacted by it on "non-union matters" They argued that referendum was not a "union matter" and that Zanzibar has its own permanent legislation on the conduct of referendum (Referendum Act No 6 of 2010). Tanzania Mainland to date has no legislation on the conduct of referendum. The argument by Hon Msekwa would have been more relevant and appropriate at that opportune time. But at that time the move was beneficial to a greater cause of usurping through manipulations all the powers and authorities of Zanzibar by making them "union matters" and finally rendering Zanzibar an empty shell, a long time project which is moving on at a regulated pace. But this time around Tanzania Mainland is about to suffer, so his misleading constitutional "clarification". I will explain why the clarification is misleading in the following paragraphs:
Firstly, elections in Tanzania are the preserve of political parties only. Under the Constitution of the United Republic of Tanzania of 1977 and the Zanzibar Constitution of 1984 no one is allowed to contest for any political post in Tanzania unless he/she is a member and has been recommended by a fully registered political party. And matters concerned with registration and management of political parties is a "union matter" and therefore cannot be left to Zanzibar as its "internal affair" as Hon Msekwa termed it. And the law is very clear on this. Political parties must be national parties. Though we have different elections in Tanzania Mainland and Zanzibar but all are contested by same political parties which are under the control of the President of the United Republic of Tanzania. Thus, his role on Zanzibar election. Politically indeed, President John Pombe Magufuli cannot disassociate himself from the conduct of his Party in Zanzibar. If the President controls the political parties he is also related to all activities of those parties including elections, which is basically the reason why political parties are in existence.
Secondly, it would have been helpful to know Hon. Msekwa's understanding of what constitutes an election , because election is a combination of so many things. It is not the voting exercise only. Almost all election activities, such as registration process, campaign and others go hand in hand with the question of peace and security. They are hand in glove. They cannot be separated. Peace and Security is a "union matter" and is under the supreme command of the President of the United Republic of Tanzania. For example the Army which reportedly put Bwawani Election Centre under siege was under the command of Union President who is the Commander In Chief. The Police who reportedly disappeared with the Vice Chairman of ZEC (who also happens to be the sitting Judge of the High Court of Zanzibar) and put him in custody for several hours is under the control of the Union President. Its difficult to understand how such a President can be exonerated from Zanzibar election.
Thirdly, election in modern democratic world is the way of winning International reputation and credibility in the world community. The President of the United Republic of Tanzania is the Head of State whose role is to ensure that the United Republic of Tanzania's image is not tarnished internationally, whether such a clout emanates from a "union matter" or "non union matter" from whichever side of the Union.
Lets not forget that International Relations is a "Union Matter". If the reputation of the URT is affected internationally it is not a defense that the act or omission is on a "non union matter" originating from Zanzibar.
Generally speaking, the President of the URT has three major constitutional roles ; he is the Head of State, Commander In Chief and leader of the Government/Executive of the United Republic. In his first two roles he is responsible for each and everything happening in Zanzibar , whether on a "union matter" or on a "non union matter". In those first two roles there is NO SEPARATION between "Union Matters" and "Non Union matters" The separation comes in his third role.
Moreover, in accordance with the Constitution of the United Republic of Tanzania the President of the United Republic of Tanzania in his capacity as the Commander In Chief is entrusted with all the organs which deals with the security of the State. He is in charge of the Army, the Police and the Intelligence which puts him in the peculiar position to know each and every step which took place before, during and after election of Zanzibar. No one has the means to know all the "files" on Zanzibar election than the President of the United Republic of Tanzania. That is why the President is under legal and moral duty to resolve the Zanzibar crisis ; he can not be a bystander or an intruder. To the contrary if he choses to remain indifferent he would be risking putting himself in a position as privy to the conspiracy of the highest order.
Hon Msekwa wrongly tries to use the Constitution to shield President Magufuli against international calls for him to intervene in Zanzibar crisis by exercising his powers as Head of State and Commander In Chief. Any attempt to try maneuvering exit from the crisis at home and be ready to resolve crisis at a neighboring countries , such as Burundi, Comoros and the DRC, will only make an unpleasant impression of the type of leadership we have.
Lastly I would like to end by quoting Hon Msekwa in his article published in 1994 titled "An Analytical History of the Two-Government Structure of the United Republic of Tanzania" when he correctly stated:
"The total effect of these Presidential enactments was that Tanganyika had indeed been decreed out of existence, and former Tanganyika had effectively assumed the status, the powers and the functions of the United Republic of Tanzania, while Zanzibar remained as Zanzibar. It was a kind of "divine transformation" whereby Tanganyika was suddenly transformed (by the above cited decrees) to become the United Republic of Tanzania; instead of remaining as an equal partner with Zanzibar in the new Union...As a direct consequence of Tanganyika having thus legally assumed the status and responsibilities of the United Republic, she automatically became obligated to meet all the expenses of the Union, thus treating Zanzibar as a kind of INVITED GUEST in the Union. A very abnormal situation had been created."
Under the Law of Tort principle of "Occupiers Liability" the host is always under legal obligation to ensure the safety of the guest. Considering the situation prevalent in Zanzibar in the context of the above quoted phrase isn't it enough to create responsibility on THE HOST/THE OCCUPIER to ensure the safety of the GUEST?
Awadh Ali Said
Advocate of the High Court of Zanzibar
Former Member of the Constitutional Review Commission
Former President of Zanzibar Law Society
