Sovereignty and Statehood of Zanzibar in the Union:
Critical Comments on S.M.Z. v. Machano Khamis Ali & 17 Others
By Prof. Issa Shivji
Posted by Elias Magugudi
By Prof. Issa Shivji
Posted by Elias Magugudi
“The
conclusion from this quick examination of the Zanzibar Constitution is that
Zanzibar is a sovereign and a state, albeit its sovereignty is limited and the
jurisdiction of the Executive and the Legislature is limited to non-union
matters in Zanzibar while its Judiciary, as epitomized by the High Court, has
unlimited jurisdiction. A Mzanzibari owes allegiance to the state of Zanzibar
and therefore an offence of treason can be committed against the state of
Zanzibar. This is irrespective of the fact that treason may be stipulated as an
offence in the union law; nevertheless it can be tried in the courts of
Zanzibar.”
Paper
by Prof. Issa Shivji of Faculty of Law, University of Dar es Salaam, presented
to the Zanzibar Law Society Conference, Zanzibar 23rd April 2005 on the
occasion of the Union Day.
By
way of a Preface
I
am honoured to be invited by the Zanzibar Law Society to discuss with you a
very important decision of the Court of Appeal in S.M.Z. v. Machano Khamis Ali
& 17 Others, which your president called the treason case and but which I
would prefer to call the Machano case. This is to avoid confusion since there
is not one but several treason cases to Zanzibar’s “credit”!
When
I was approached by your president, I enthusiastically accepted to discuss the
case because of my view that this is a very important case with far-reaching
implications for the place of Zanzibar in the union and yet it has hardly been
noticed, even among lawyers. I did not realize the difficulty of the task I was
undertaking. Yet, having made the commitment, I could not back out.
The
difficulty does not arise from the perception that the discussion of the case
may be politically sensitive, which it is, but from some peculiar features
pertaining to the approach and style in which the decision has been written. I
will discuss this in a moment but before I do so let me at the outset make it
clear that I am presenting this paper to you as a member of the academic
community and not as a practising member of the Bar. At the Bar, whether we
agree or disagree with judges, we always do it “humbly and with great respect”.
So as not to encumber the language, I will not use those phrases repeatedly;
but rather just say it at the outset that my disagreement, if any, does not
imply disrespect to the Court or to honorable judges. Having thus exculpated
myself, let me proceed with the task before us.
Some
peculiar features
There
are some peculiar features pertaining to both the way the Court of Appeal
assumed jurisdiction in this case and the approach and style of the ruling.
There are three features which I would like to mention briefly because, to some
extent, they affect my presentation of the critique.
1.
Assumption
of Jurisdiction
Machano
and 17 other Zanzibaris were charged for treason under section 26 of the Penal
Decree (Cap. 13) of Zanzibar. The charge alleged that these persons ‘by words
and actions’ intended and ‘devised ways of treason in order to overthrow the
Government of Zanzibar and to remove from authority the President of the
Revolutionary Government of Zanzibar.’ Before the High Court of Zanzibar,
presided over by the then Deputy Chief Justice of Zanzibar, Tumaka, DCJ, the
accused persons raised a number of preliminary issues. One of these, which was
the subject-matter of the Court of Appeal’s ruling, stated that the offence of
treason could not be committed against the Government of Zanzibar.
The
High Court overruled the defense on all preliminary issues. The accused persons
appealed to the Court of Appeal. The Court of Appeal heard the appeal including
two amicus curiae. Judgment was reserved but the Court indicated that they
would give their judgment expeditiously. I recall reading in the papers that
the presiding judge, Kisanga, J,, answering journalists who were wondering at
the delay in judgment said that the case was a very important one and required
intense research.
While
the judgment was pending, there were elections in Zanzibar and the new
President, Honourable Amani Abeid Karume, was elected. Soon after, on 7th
November 2000, to be precise, the prosecutor entered nolle prosequie, meaning
that he withdrew charges, and the accused persons were set free. Two weeks
later, the ruling in the case dated 21st November, 2000 was read by the
Registrar in Zanzibar. Now let me pause at this stage, and for the benefit of
non-lawyers, but perhaps even lawyers, raise an obvious query.
In
ordinary circumstances, a court of law would not have proceeded to give a
judgment where its judgment would be superfluous because the charge had been
withdrawn. Under our system, the courts do not give advisory opinions nor
deliver rulings for purely academic interest. Courts have time and again
reiterated that they are not courts of academia and do not give opinions on
hypothetical matters. In this case, therefore, since the appellants would
obviously have no interest to pursue the matter, the case would have been
marked ‘withdrawn’ and that would have been the end of the proceedings. This is
not what happened.
The
Court explains in its ruling that the case involved an important constitutional
matter and the decision of the High Court to the effect that treason could be
committed against the Revolutionary Government of Zanzibar could be relied upon
in future ‘by the High Court’ and therefore it ought to be ‘revisited and that
it cannot be allowed to stand.’ The
Court therefore suo motto, meaning on its own, converted the appeal into an
application for revision and used its powers under section 4(3) of the
Appellate Jurisdiction Act, 1979, (as amended by Act 17 of 1993) to revise the
ruling of the High Court of Zanzibar and set it aside. The intuiting of the
case was apparently changed from a ‘Civil Appeal’, to ‘Civil Application’; its
explanatory subtitle reads, “Application for Revision from the Ruling of the
High Court of Zanzibar at Zanzibar’ and the decision is titled ‘Order of the
Court’ (perhaps this is an oversight for decisions in applications are normally
called ‘Rulings’).
The
first question that arises, and I will only briefly touch this, is whether this
was, legally speaking, a proper way of assuming jurisdiction over a matter
whose subject-matter had disappeared.
Section
4(3) of the Appellate Jurisdiction Act provides:
…..
the Court shall have the power, authority and jurisdiction to call for and
examine the record of any proceedings before the High Court for the purpose of
satisfying itself as to the correctness, legality and propriety of any finding,
order or any other decision made thereon and as to the regularity of any
proceedings of the High Court.
Under
this section, the Court of Appeal exercises its revisional jurisdiction on its
own but over a matter which is still pending or concluded before the High
Court. To my knowledge, the Court has invoked this section only once before in
the case of Fahari Bottlers v. The Registrar of Companies (Civil Revision No. 1
of 1999, unreported). The section assumes that the matter called for revision
is before the High Court.
Clearly,
the instant case was not before the High Court. It had already been heard and
concluded before the High Court. As a matter of fact, it was on appeal before
the Court of Appeal and the Court had already heard the arguments. On the face
of it, therefore, the section was inapplicable to the circumstances of the
case. How did the Court go round this legal difficulty?
The
Court does raise the issue but disposes off it in two short sentences thus:
However,
we are duty bound to point out that that subsection [meaning 4(3) ] empowers
this Court “to call for and exercise the record of any proceedings before the
High Court … “. We did not have to call for the record in this case because the
record was already with us. [at p.2)
Undoubtedly
this raises more questions than answers. The issue is not whether or not the
record was already with the Court of Appeal but whether the matter was still
before the High Court. It can well be argued that once the matter has been
removed from the High Court, for instance where a Notice of Appeal has been
filed, it is no longer before the High Court. Lawyers would know that there are
several decisions of the Court of Appeal to that effect. [cite]
In
the case of Kombo Mkabara v. Maria Louise Frisch<!–[if
!supportFootnotes]–>[1]<!–[endif]–>,
whose circumstances are very similar to the instant case, the Court arrived at
an exactly opposite decision. It held that once the matter had been removed to
the Court of Appeal, it was no longer ‘before the High Court’ and therefore the
Court had no power to invoke its revisional powers under section 4(3)<!–[if
!supportFootnotes]–>[2]<!–[endif]–>
True, the case was decided two years after the Machano decision, but the Judge
who wrote the Ruling in the Mkabara’s case was also a member of the panel in
Machano case. Of course, one cannot assume either institutional or individual
memory to alert the judges but then the least that can be said is that the
Court was embarking on a very contentious legal terrain. Under the
circumstances, one would have expected that the least the Court could have done
was to recalled the Counsel involved in the case to assist them whether it had
the jurisdiction to revise the proceedings which were already before them. This
was not done.
In
spite of that, the Court summarizes and discusses the arguments of the Counsel
which they made when arguing the appeal. This raises a second issue, of no
small significance. In an adversarial system, can it really be assumed that the
Counsel, who were representing substantial interest of their clients – in this
case life and death situation – in the appeal would have argued the same way in
a revision when they would have known that the interests of their clients were
not at stake? I doubt.
It
is difficult to avoid the impression that the Court was extremely anxious to
make a decision on this matter. This is somewhat strange when the same Court in
previous cases has strenuously avoided pronouncing on controversial issues to
do with the Union or the Zanzibar constitution or the relationship between the
Union and Zanzibar Constitutions.<!–[if
!supportFootnotes]–>[3]<!–[endif]–>
We should perhaps leave it to our friends in political science to analyse the
reasons why the judges went to such great lengths to deliver a decision in
Machano when it was judicially not necessary.
2.
The High Court’s Ruling not fully considered
It
is usual that appellate courts, whether sitting on appeal or revision, fully
consider the reasoning and arguments of the lower court whose decision is being
appealed from. Thus the appellate court analyses the lower court’s decision and
arguments expressing agreement or disagreement, giving reasons and ultimately
deciding where the lower court went wrong or why was it correct in its
decision. In this case, whose ruling runs to 26 pages, there is only one
paragraph on page 24 making reference to only one point in the High Court’s
decision.
Let
us make some quick observations on certain matters raised by the learned Deputy
Chief Justice. He considered federalism and cited authorities from the USA and
also from Nigeria. As already pointed out, our constitutional set-up is
different from that obtaining in these countries. For example, sections 37 and
38 of the Criminal Code Law of Nigeria, as cited by the learned judge, provide
that treason covers acts perpetrated against the President or a State Governor.
We do not have such provisions. Therefore, we do not think that we need take
time to consider this comparison. (p.24)
It
is true that the High Court judge used examples from other countries to argue
by analogy, which is a respectable and acceptable mode of judicial reasoning.
But it would be somewhat disingenuous to say that that is the only thing he
did. In his single space judgment, some 6 pages are devoted to the issue of
whether treason can be committed against the Revolutionary Government of
Zanzibar. But perhaps the most important part of that ruling is the Judge’s
approach. He said that, ‘Whilst I do not believe that statehood is at the heart
of this matter, but rather “Government”, I find it imperative to make my brief
observation on the submissions.
Pursuing
this line of argument, the Judge, relying on the provisions of both the Union
and Zanzibar Constitutions, goes on to develop the position that there is a
fully-fledged Government in Zanzibar with executive, legislative and judicial
powers. He quotes the definition of ‘Government’ from the 6th edition of
Black’s Law Dictionary which defines ‘Government’; as “The sovereign or supreme
power in a state or nation”, and also as “the machinery by which the sovereign
power in a state expresses its will and exercises its functions.” (p.13 of the
typescript). (Incidentally, this is exactly what article 4 of the Union
Constitution seems to imply. I will return to this point later.) He shows that
the Government owes duties and protection and welfare to the people and the
people in turn have duties towards the Government as stipulated in the Zanzibar
Constitution and concludes that it is possible to commit treason in Zanzibar.
The
appellate court may well have disagreed with the lower court but that is not to
say that these were not plausible arguments and positions which ought to have
been taken account of, and considered, before the Court arrived its own
position. That is the usual practice in judicial decisions of appellate
tribunals. It is intriguing why this was not done in this case. Is it that the
Court wanted to avoid dealing with the provisions of the Zanzibar constitution?
And that brings me the next feature of this case.
.
Critique
from the internal standpoint
The
major issue on which the Court decided to concentrate, in its own words,
was‘the constitutional issue of whether or not treason can be committed against
the Revolutionary Government of Zanzibar’ (p.2) After examining the definitions
of treason and the English case of Joyce v. DPP [1946] AC 347, the Court
crystallized four elements of the offence of treason, two of which being most
pertinent to the constitutional question. These are: (1) that the treasonable
must have been committed against a sovereign or a state, and (2) the act was
done by a person who owes allegiance to the sovereign or the state. The second
is no doubt contingent on the first in that if the body against whom the act is
committed is neither a sovereign nor a state then the question of allegiance
does not arise because there is no body to owe allegiance to.
In
the first 15 pages, the Court concentrates on the issue of whether Zanzibar is
sovereign and/or a state. After two pages of digression, the Court shifts
ground in the second part where the issue is whether treason is a union matter.
The link between the two parts is not very clear until the penultimate paragraph
at the end where the apparent link is made but on different premise altogether.
I will discuss this in the course of the paper. Let me begin with the first
part.
Part
One: Whether Zanzibar is a state and/or sovereign
After
examining several authoritative texts on International Law, the Court arrives
at the following propositions or findings:
There
are two aspects of sovereignty, external and internal; external in relation to
other states or powers where it expresses itself as ‘freedom from outside control’
and internally it relates ‘to the power of making and enforcing laws.’ (p.7)
In
modern International Law jurisprudence, sovereignty, at both external and
internal levels, need not be either absolute or unified. It may be limited and
divided. The extent of sovereignty therefore is a question of (legal) fact to
be determined by examining the constitutional and external arrangements of each
country and or polity.
There
is no necessary correspondence on the issue of unity or divisibility of
sovereignty between the external and internal aspects of sovereignty. This
means that it is possible that external sovereignty may be single and undivided
while internal sovereignty is divided. ‘For the purposes of treason internal
sovereignty is more relevant.’ (p.7)
The
most important characteristic of a sovereign state is that it has treaty-making
power.
The
Court then proceeds to apply these propositions to the Tanzanian situation. It
does this through a short digression on the nature of the Union (pp.9-10) and
quotes a passage from Oppenheim which it then uses in a modified form to make
findings on the nature of the Tanzanian union in its external aspect. This
leads the Court to the conclusion that in its external aspect Zanzibar is
neither a sovereign nor a state and that the ‘state and sovereign is the United
Republic of Tanzania’ (p. 11).
Since
the Oppenheim passage and the Court’s paragraph stating its findings are very
crucial I quote both and then subject them to analysis.
A
Real Union is in existence when two sovereign States are, by an international
treaty, recognised by other Powers, linked together for ever under the same
monarch, so that they make one and the same International Person. A Real Union
is not itself a State, but merely a union of two full sovereign States which
together make one single but composite International Person. They form a
compound Power, and are by the treaty of union prevented from making war
against each other. On the other hand, they cannot make war separately against
a foreign Power. Nor can war be made against one of them separately. They can
enter into separate treaties of commerce, extradition, and the like, but it is
always the Union which concludes such treaties for the separate States, as
separately they are not International Persons. (quoted at p. 10)
Then
follows this decisive passage:
We
can in all fairness say that The United Republic of Tanzania closely resembles
a real union but for the situation that a real union is not itself a state.
There is no speck of doubt that the United Republic of Tanzania is a state. The
two parts forming the United Republic of Tanzania can neither separately go to
war against a foreign power nor can war be made against one of them separately
as was amply demonstrated in the war against Idi Amin Dada of Uganda. The whole
of Tanzania went to war and each part contributed towards the cost of that war.
The United Republic of Tanzania is the treaty-making power. This was
illustrated by the abortive attempt of Zanzibar to join the Organisation of Islamic
Conference. (at p. 11)
This
passage has three problems. The first problem relates to the interpretation of
the Oppenheim passage. The Oppenheim passage is discussing the international
legal status of a Real Union and says that a Real Union itself is not a state
but a ‘composite International Person.’ The Court says the Tanzanian union
resembles a Real Union in the Oppenheim sense but for the fact that it is
definitely a state. What argument/evidence does the Court rely on to assert
that the Union is a state? This leads to the second problem. The Court relies
on two pieces of purported evidence, the Ugandan war and the Zanzibar’s OIC
membership.
Let
us pause here. In law, there are certain notorious historical or political or
social facts that Courts can take judicial notice of. Otherwise the Courts have
to rely on evidence to draw its conclusions. In my submission, both the Ugandan
war and the OIC saga were extremely controversial and they are hardly the kind
of ‘facts’ which a Court of law can take judicial notice of. For example, are
we sure that Zanzibar participated fully in the Ugandan war and that it
contributed to its execution? Without uncontroverted material to support its
assertion, is a court of law justified to make such an assertion particularly
when it is so crucial to its finding?
But
even if the Court’s assertion on the Ugandan war were true, it only goes to
support the Oppenheim proposition which should lead to the conclusion that the
United Republic is a composite International Person and not that it is a state.
.This is supported even by the Articles of the Union which stipulated that the
Republic of Tanganyika and the Peoples Republic of Zanzibar are united in ‘one
Sovereign Republic’. It can very well be argued with great force that that phrase
actually refers to what Oppenheim calls ‘composite International Person’ which,
for the purposes of international bodies (for example a seat in the UN),
treaties etc. is the International Legal Person.
As
for the treaty-making power, again it is not at all clear what the Court was
trying to say when it asserted that Zanzibar’s attempt to join OIC was
abortive? Was the attempt aborted legally or politically? After all, we know
that Zanzibar was accepted in the OIC; it attended a couple of meetings, and,
we don’t know if it withdrew at all, or if it did withdraw, whether it withdrew
for political or legal reasons, that is, because it was incompetent to make a
treaty?
As
a matter of fact, further research might just reveal that the incidence of
Zanzibar’s entry into OIC fits into Oppenheim’s proposition that the uniting
states can enter into separate treaties but it is always the Union which
concludes such treaties for the separate states.’ In other words, the author
making a distinction between entering into treaties and concluding them. Now,
of course, this is speculation on my part. The point I am trying to make though
is that the Court’s own assertion was equally as speculative and therefore
could not be used to buttress its conclusions.
In
sum, therefore, it can well be argued that the Tanzanian union fits like a hand
in glove to Oppenheim’s Real Union; that therefore in international law the
United Republic is not a state but a composite International Person and that
Zanzibar is a State and although it cannot conclude treaties it can enter into
treaties. Even if the United Republic is a state, it does not alter the
argument that Zanzibar is a state in terms of Oppenheim’s propositions.
The
discussion so far has been with regard to the external aspect of sovereignty
and statehood. We now turn to the internal aspect as indeed the Court does
beginning page 12 where it poses the issue, ‘The question then is whether
sovereignty vested in the United Republic of Tanzania is divisible as between
the two parts.
To
determine that we have to analyse the provisions of the Constitution of the
United Republic of Tanzania, 1977.’ In passing the Court notes Article 1 of the
Union Constitution which says ‘Tanzania ni nchi moja na ni Jamhuri ya Muungano’
which it translates as, ‘Tanzania is one country and is a United Republic’. The
Court disapproves of the version in the English translation which translates
article 1 as ‘Tanzania is one State and is a sovereign United Republic’. The
Court regrets that the 1977 Union Constitution has dropped the element of
‘sovereignty’ which was contained in the 1965 Interim Constitution which
stipulated that ‘Tanzania is a United Sovereign Republic.’ Pausing here I might
add that the 1965 formulation is no more than a reproduction of the Articles of
the Union in this regard and does not add much to our understanding of the
issues at hand. The phrase ‘United Sovereign Republic’ does not in itself show
that Tanzania is anything other than a composite International Person, in
Oppenheim’s phraseology.
But
the most crucial argument and conclusion of the Court that Tanzania is ‘one
country, one state’ (p.15) and therefore internally, as is the case externally,
Zanzibar is neither sovereign nor a state, is based on its interpretation of a
single article in the Union Constitution, article 103(1). That sub-article
provides:
There
shall be a Head of the Revolutionary Government of Zanzibar who shall be the
President of Zanzibar and the Head of the Revolutionary Government of Zanzibar
and also the Chairman of the Revolutionary Council of Zanzibar.
This
is the Court’s translation. Since the Swahili version is the controlling one,
as the Court has decided,<!–[if
!supportFootnotes]–>[4]<!–[endif]–>
we must also reproduce the Kiswahili version.
Kutakuwa
na Kiongozi wa Serikali ya Mapinduzi Zanzibar ambaye ndiye atakuwa Rais wa
Zanzibar na Mkuu wa Serikali ya Mapinduzi ya Zanzibar na vile vile Mwenyekiti
wa Baraza la Mapinduzi la Zanzibar.
Let
us pause here. There is a significant variation in the translation of the Court
which translates both ‘Kiongozi wa Serikali ya Mapinduzi Zanzibar’ and ‘Mkuu wa
Serikali ya Mapinduzi ya Zanzibar’ as ‘Head of the Revolutionary Government
Zanzibar’. If these terms mean the same thing why were they used twice? They
would be superfluous. In statutory construction, the principle is that meaning
should be given to all the words used. I would therefore submit that the term
‘Kiongozi wa Serikali ya Mapinduzi Zanzibar’ is used as a generic term to refer
to the Leader of the Zanzibar Polity<!–[if
!supportFootnotes]–>[5]<!–[endif]–>
which resolves itself into three, that is, President of Zanzibar, Head of the
Revolutionary Government of Zanzibar and Chairman of the Revolutionary Council
of Zanzibar. We will return to this issue later.
After
quoting article 103(1) the Court draws following conclusions:
It
is significant to note that that Article categorically provides for the Head of
the Revolutionary Government of Zanzibar and not for the Head of State of
Zanzibar even though this Head of the Revolutionary Government is also titled
the President of Zanzibar. This clinches the debate and drives home the fact
that Zanzibar is not a state, not only in international law but also under the
Union Constitution. Louis XIV of France bragged: “the State is me”. In the like
manner, here at home, the unflinching legal position is that “the State is the
Union”. There is absolutely no iota of dispute that the United Republic is
indeed one country, one state. (p.15)
This
is indeed a forceful and very assertive statement and conclusion drawn from the
examination of a single article which, in any case, with respect, is partly
mistranslated. But let us analyse the passage further.
The
Court first asserts that the Article does not provide for the Head of State of
Zanzibar but only the Head of the Revolutionary Government who is also “titled
the President of Zanzibar.” With respect, the article does not say that the
Head of the Revolutionary Government shall also be called (“ataitwa” Rais wa
Zanzibar”) the president or shall be known (“atajulikana kama Rais wa Zanzibar)
as the President of Zanzibar. It says he shall be the President of Zanzibar.
Thus the issue of the President of Zanzibar is not one of nomenclature but
rather one of substantive position.
Secondly,
the Court says the constitution does not say that ‘he shall be the ‘Head of the
State of Zanzibar’ But what is the term for ‘state’ used in the Constitution
which could be translated as “state.’ To clarify, let us look at the most
obvious and analogous article which is the one dealing with the President of
the United Republic. Is he the Head of State? Article 33 after stipulating that
there shall be the President of the United Republic says in sub-article (2)
that ‘rais atakuwa Mkuu wa Nchi, Kiongozi wa Serikali na Amri Jeshi Mkuu’ which
is translated into English to mean ‘The President shall be the Head of State,
Head of the Government and Commander in Chief of the Armed Forces’ (see 1998
English translation of the Constitution.) So, ‘nchi’ here is translated as
‘state’. This is not incorrect, even in English the terms ‘country’ and ‘state’
are often used interchangeably and only the context can tell us whether what is
implied is state or country. Using this analogy, how are we supposed to
translate and understand the phrase ‘Rais wa Zanzibar’ used in the Union
Constitution? What does ‘Zanzibar’ stand for in that phrase if not for ‘nchi’
in the sense of State?
On
this score, the clearest provision is article 4(1) of the Constitution. It
provides:
4(1)
All state authority in the United Republic shall be exercised and controlled by
two organs vested with executive powers, two organs vested with judicial powers
and two organs vested with legislative and supervisory powers.
(2)
The organs vested with executive powers shall be the Government of the United
Republic and the Revolutionary Government of Zanzibar; the organs vested with
judicial powers shall be the Judiciary of the United Republic and the Judiciary
of Zanzibar; and the organs vested with legislative and supervisory powers over
public affairs shall be the Parliament of the United Republic and the House of
representatives of Zanzibar.
First,
this is another place where ‘Mamlaka ya Nchi’ is used to mean ‘state authority
in which case ‘nchi’ can only mean ‘state’. Article 4 is as clear as clarity
can be to denote the existence of two states. State authority or state power is
expressed in two sets of three organs each. The three being ‘organs’ or
branches of the state, as they are usually called, are the Executive, the
Judiciary and the Legislature. These then are named. We may sum up the article
as follows in a formula.
Union
Government + Union Judiciary + Union Parliament = State of the United Republic.
No
one questions that the United Republic is a state or, to use the Court’s phrase
borrowed, rather inappropriately, from Louis XIV, “the State is the Union”. If
so, then the sum of the
Revolutionary
Government of Zanzibar + the Zanzibar Judiciary + House of Representatives =
State of Zanzibar.
Again,
to use the Court’s phrase, it seems to me article 4 clinches the debate on
whether or not Zanzibar is a state.
To
be fair, the Court does refer to article 4 on page 15 immediately after the
passage quoted above but does not use it to understand the issue at hand.
Rather the argument shifts to the functions and the list of union matters and
classification of the list. After yet another digression, the Court comes back
on page 17 to ask “which of the two pigeonholes we slot in treason” meaning
whether treason is a union matter or a non-union matter. That brings me to the
second part of the analysis.
Part
Two: The classification of treason
The
discussion on the classification of union and non-union matters from pages 17
to the end of the ruling is to classify the offence of treason. The logic of
this is difficult to understand unless one admits that this argument actually
shifts the ground and the whole concept of sovereignty itself. I will explain.
On
page 17 after concluding on the principle of duality, first developed in the
case of Haji v. Nungu {1987} LRC (Const.) 224, the Court shifts back to the
issue of sovereignty and says ‘the only logical conclusion is that sovereignty
is divisible (sic!) within the United Republic. Now, in order to determine
which of the two Governments exercises sovereignty over any given matter one
has to determine whether or not the matter is Union or non-union.’ This is a
major shift of premise from sovereignty as an exercise of power (or making and
enforcing of laws, as the Court formulated in the first part of the ruling) to
a matter of jurisdiction over matters or, as in this case, offences.
Oblivious
of this shift the Court proceeds and, taking a hint from the description of
subversion in the Tanzania Intelligence and Security Act, 1996 (Act No. 15 of
1996,) concludes that treason is part of security and since security is a union
matter so is treason. For the sake of argument let us grant that treason is a
union matter. If that is so, the furthest one can go is to say that treason can
only be provided in a union law and therefore if it is stipulated in a Zanzibar
law, then, to that extent the Zanzibar law would be invalid. Therefore section
26 of the Penal Code Decree, under which the accused were charged, is invalid.
But
that does not still answer the issue of whether or not treason can be committed
against the Zanzibar Government, that is, whether Zanzibar is a sovereign or a
state. In our opinion, the issue of whether Zanzibar is sovereign or a state is
independent, and has to be determined independently of the classification of
the offence of treason as a union or a non-union matter. Even if treason is a
union offence, it can be committed against the Government of Zanzibar if
Zanzibar is a state. By the same token, it cannot be that the United Republic
is a state because treason is a union matter. Yet, the discussion leads the
Court to precisely end up drawing such conclusion in the penultimate paragraph
which needs to be quoted:
In
a nutshell we have found that treason can only be committed against a
sovereign. However, as treason is a breach of security, which in the United
Republic is a Union Matter, therefore, the sovereign is the United Republic and
not the Revolutionary Government of Zanzibar or the Head of the Executive of
Tanzania Zanzibar who is also called the President of Zanzibar. (p. 26)
(emphasis supplied)
So,
why is the United Republic sovereign? Because treason is a union matter. Why is
the Government of Zanzibar not sovereign? Because treason is not a non-union
matter. Is this the ratio of the case? If, yes, then patriotic Zanzibari
lawyers may take solace that the whole discussion concluding that Zanzibar is
not a sovereign or a state is obiter and therefore not binding in a future
case!
I
will now quickly discuss an alternative approach to critiquing the case from
the standpoint of the Constitution of Zanzibar.
The
Standpoint of the Zanzibar Constitution
Given
the fact that the central issue that the Court had to determine was the
character of Power in Zanzibar, the primary document it would have considered
would have been the Constitution of Zanzibar. The question would be what is
that the Constitution of Zanzibar constitutes?
Let
me begin by some propositions which I will not attempt to prove here because I
have done so in my other writings.<!–[if
!supportFootnotes]–>[6]<!–[endif]–>
The
Constitution of Zanzibar is made by the people of Zanzibar through the
Revolutionary Council. Its does not derive its legal authority or political
legitimacy from the Union Constitution nor it is subordinate to the Union
Constitution.
The
Articles of the Union through the Acts of Union are part of the Constitution of
the Union and that of Zanzibar. Both the Constitution of Zanzibar and the Union
Constitution are subordinate to the Acts of Union and in case of conflict the
Acts of Union prevail.<!–[if
!supportFootnotes]–>[7]<!–[endif]–>
The
Constitutional structure of the union may be described as a unitary state with
federal characteristics. Seen from the vantage point of the Zanzibar
constitution it is more federal than unitary; opposite is the case when seen
from the standpoint of the union Constitution. This means that there are some
very fundamental and substantial inconsistencies between the two constitutions.
The Eighth Constitutional Amendment to the Zanzibar Constitution further reinforces
this hiatus.
The
Courts have tended to ignore the Zanzibar Constitution as a way of avoiding
pronouncing on the inconsistencies but in the process, as the Haji v. Nungu,
Mtumwa Saidi Haji v. The Attorney General and this case show, the result has been
to slowly diminish the federal characteristics of the union and make it more
unitary by nibbling away at Zanzibar’s autonomy.
Very
briefly, if one were to approach the issue raised in this case from the
standpoint of the Zanzibar constitution then the answer is pretty clear. The
Constitution of Zanzibar constitutes the State of Zanzibar whose sovereignty is
limited, more limited in the international sphere than in the domestic sphere.
Throughout the Constitution, the terms ‘nchi’, ‘wananchi’, ‘Zanzibar’ are used.
Taken in context of the union, the terms ‘nchi’ and ‘Zanzibar’ denote the
‘political society’ or the state of Zanzibar and ‘wananchi’ connotes the people
of Zanzibar in a collective sense as the ‘civil society’ of Zanzibar while
Mzanzibari refers to the individual member of this ‘civil society’ who owes
loyalty and allegiance to the state of Zanzibar from which he has right to
demand protection of his/her person, integrity and welfare. .
As
in the case of the Union constitution (see article 8(1)(a)), in the Zanzibar
constitution the source of sovereign power are the People and they exercise it
through various organs constituted by the Constitution (article 9(1)(2)(a).
Thus the Constitution of Zanzibar constitutes State Power which is the sum of executive,
legislative and judicial power. This proposition is also supported by article 4
of the Union Constitution as already analyzed above.
The
conclusion from this quick examination of the Zanzibar Constitution is that
Zanzibar is a sovereign and a state, albeit its sovereignty is limited and the
jurisdiction of the Executive and the Legislature is limited to non-union
matters in Zanzibar while its Judiciary, as epitomized by the High Court, has
unlimited jurisdiction. A Mzanzibari owes allegiance to the state of Zanzibar
and therefore an offence of treason can be committed against the state of
Zanzibar. This is irrespective of the fact that treason may be stipulated as an
offence in the union law; nevertheless it can be tried in the courts of
Zanzibar.
Concluding
Ironies
It
is ironical that the case of Machano whose decision resulted in declaring that
the Zanzibar is neither sovereign nor a state should have involved members of a
party whose political position has been, and continues to be, for greater autonomy
for Zanzibar in the union. Such ironies are not unknown in history. Of course,
the life and freedom of individual members was at stake, so their legal
representatives had to do everything, including arguing that Zanzibar was not a
state or sovereign, to persuade the Court. Ironically again, what freed the
accused was a political and not a legal decision.
As
the analysis of this case shows it is not even clear if legal decisions are
purely so. We lawyers are responsible for mystifying law and creating a
dichotomy between political and legal power. Ultimately the two are united as
expressions of State Power, however much we may trumpet separation of powers.
That is not to say we must stop blowing the trumpet. While trumpets may not
kill elephants they may at least scare them away so long as we do not become
foolhardy to believe that trumpets are guns.
<!–[if !supportFootnotes]–>
<!–[endif]–>
<!–[if
!supportFootnotes]–>[1]<!–[endif]–> Court of Appeal at Dar es Salaam,
Civil Application No. 3 of 2000, unreported. In that case this writer was
pleading with the Court to invoke its revisional jurisdiction suo motto under
section 4(3) in favour of a legally aided person whose case had been messed up
in the High Court.
<!–[if
!supportFootnotes]–>[2]<!–[endif]–> “We are … of the settled view that
subsection (3) applies to proceedings under the consideration or cognisance of
the High Court, in other words, proceedings in which the High Court is still
seized of jurisdiction. This construction is underscored by the words ‘to call
for’, similarly emphasized, which can only mean calling for a record still
before the High Court. It is known, of course, that calling for the record may
sometimes assume a fictional nature where the record is for some reason already
with the Court of Appeal, but legal fictions are not unknown. It is common
ground that in this case a notice of appeal is already filed. … [T]he effect of
that notice is to remove the proceedings from the High Court into this Court.
An intended appeal has come into existence. The proceeding is therefore no
longer before the High Court and is beyond the ambit os subsection (3).” (at
p.6)
<!–[if
!supportFootnotes]–>[3]<!–[endif]–> See, for instance, Seif Shariff
Hamad v. S.M.Z., Criminal Appeal No. 171 of 1992 (unreported) but reprinted
in C. M. Peter, Human Rights in Tanzania: Selected Cases and Materials,
Koln: Rudiger Koppe Verlag, 1997) pp.702-710, at p. 709.
<!–[if
!supportFootnotes]–>[4]<!–[endif]–> See the case of Daudi Pete v. R.
[1993] TLR 22 at p.33, cited and applied by the Court in this case.
<!–[if
!supportFootnotes]–>[5]<!–[endif]–> Query: is it significant that ‘ya’
is omitted between Mapinduzi and Zanzibar, or, is it simply a printing error?
<!–[if
!supportFootnotes]–>[6]<!–[endif]–> See Issa G. Shivji, The Legal
Foundations of the Union, (Dar es Salaam: DUP, 1990).
<!–[if
!supportFootnotes]–>[7]<!–[endif]–> This proposition has yet to be
fully accepted judicially. But both the current Chief Justice and the former
Chief Justice have, in extra-judicial statements, accepted that the Acts of
Union are part of the Constitution and the current Chief Justice has gone as
far as accepting that in case of inconsistency, the Acts prevail.<!–[if
!supportFootnotes]–>[7]<!–[endif]–> However, in the case of Mtumwa
Saidi Haji and 49 Others v. The Attorney General (Civil Case No. 2 of 1995,
High Court at Dar es Salaam, unreported), another very important case on the
union which has gone unnoticed, the court while agreeing that the Articles/Acts
of Union still have force of law decided that they can be amended by the
Constitution because they are a schedule to it. This is rather strange. Space
and time does not allow further analysis of the case.
Posted by Elias Magugudi
Kurunzi za Siasa
Email eliasmagugudi2016@gmail.com
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