Magufuli’s 100 days—and Zanzibar political stalemate

Ali Muhsin has his right hand up as if waving to the photographer, whilst the other three are looking intently at the photographer.

All but Hasnu Makame are in jacket and tie. The photograph was taken some 53 years ago on their return from negotiations with the British Government at Lancaster House regarding the independence of Zanzibar.

Everyone and everything in that photograph has since departed this world, including East African Airways which met its death when the presidents of Tanzania, Kenya and Uganda could no longer see eye to eye.

One hundred days or so ago, Seif Shariff Hamad took a flight from Zanzibar to Dar es Salaam and was eventually granted an audience at Magogoni with the then President of the United Republic of Tanzania, Jakaya Mrisho Kikwete.

The press informed us that the marked public presence of the Tanzania Peoples’ Defence Force in the archipelago of Zanzibar was a matter that was discussed and the Commander-in -Chief advised Seif Shariff to “discuss the matter with General Mwamunyange”.

I have always been taught that the purpose of the army is to fight wars against other armies and the aim of the police is to protect civilians against each other.
Article 148(1) of the Constitution of the United Republic of Tanzania makes it very clear that the army is commanded by the Commander-in -Chief and he can only command the “Armed Forces to engage in military operations connected with the defence of the United Republic, rescue operations to save lives and property in times of emergency and other matters which the Commander-in -Chief shall deem necessary.”

Was it really necessary to command the TPDF to surround the Zanzibar Electoral Commission at Bwawani during the vote tallying process?

Was it really necessary to bring out TPDF in full force in Zanzibar during the election? Worse still, Seif Shariff Hamad, a politician representing a considerable number of Zanzibaris was told categorically that any complaints he had concerning TPDF’s visible presence on the streets of Zanzibar should be raised with the Chief of Defence Staff.

The only message a lot of Zanzibaris and I got from this statement was that political dialogue is out of the question; our politicians must now deal directly with the army.

So, we negotiated our way out of colonialism; replaced the Sultanate of Zanzibar with the People’s Republic of Zanzibar through a revolution during which people died; negotiated a political and economic Union as equal partners with Tanganyika, only today to be told that our politicians must henceforth negotiate with the Chief of the
Tanzania People’s Defence Force in order for civilians to obtain breathing space from the army.

When did we turn from equal partners of a union to a colony, I beg to ask? Army generals are not and should never be in the business of politics. How did the generals of the TPDF enter so insidiously into the political arena that they now have the mandate to negotiate their presence on the streets of Zanzibar with our politicians.

It is frightening how easily and carelessly these sacrosanct boundaries can be crossed.

I am not the only one who watched and was saddened by this unfortunate turn of events. Our fault as Zanzibaris was nothing more than to come out en mass and peacefully vote for a party that did not win the elections on the Mainland.

For those of you who are reading this, rubbing your hands together, smacking your lips with delight in the thought that it must be seditious, let me just state that what I write is intended to show the Government of the United Republic of Tanzania that it has been mistaken in the measures it is taking in Zanzibar because they are producing feelings of ill-will and enmity amongst Zanzibaris.

So my right to write and advise is fully protected under Section 55(2)(a) and Section 55(2)(d) of the Penal Code Cap. 16 of the Laws of Tanzania.

The said Section can always be amended to keep me quiet but until then I will write and write and write because I can and I am fully protected by the law.

More important to me than these laws on sedition - which after all are a remnant of the common law offence against the monarch which was finally abolished in 2009 in England and as our society evolves we too will have no need for sedition laws - is the fact that I am not prepared by my silence to conspire in the breach of our Constitutions, because I subscribe to John Stuart Mill’s observation that “Bad men need nothing more to compass their ends than that good men should look on and do nothing.”

Rather surprisingly, the government of the United Republic of Tanzania has been at considerable pains to declare publicly that it has nothing to do with the present political impasse in Zanzibar.

Well, at the risk of disappointing all those who have created this narrative and all those who have bought into the narrative, I would like to remind everybody of article 104(2)(a) of the Constitution of the United Republic of Tanzania which provides:

“Subject to the other provisions of this Constitution, the office of the Head of the Revolutionary Government of Zanzibar shall be vacant, and the election of the Head of the Revolutionary Government of Zanzibar shall be held to fill the vacancy upon the occurrence of the following events;” including “the dissolution of the House of Representatives.”

The House of Representatives was dissolved in August 2015, 6 months ago. We had an election in Zanzibar that was purportedly “nullified” at the whims of a single man.

Almost all governments other than the Government of the United Republic of Tanzania and one or two others who have their own electoral skeletons in the cupboards, do not recognise the nullification of the elections - and in addition despite the clear provision of article 104(2)(a) of the Constitution of the United Republic of Tanzania -our government recognises Ali Mohamed Shein as the lawful, constitutionally mandated president of Zanzibar.

This was made categorically clear by Tulia Ackson, the Deputy Speaker of Bunge. Which part of the word “vacant” has the Government of the United Republic of Tanzania failed to understand?

Let me be of further assistance by quoting the Kiswahili version of the Constitution, which provides “kiti cha Kiongozi wa Serikali ya Mapinduzi ya Zanzibar kitakuwa kiwazi…….Baada ya Baraza la Wawakilishi kuvunjwa.” Has that helped to clarify matters?

One hundred days on in Zanzibar we have a constitutionally vacant seat of the president, which is being filled by Ali Mohamed Shein who is the vice chairman of CCM and is recognised as the rightful president of Zanzibar by the CCM-led government of the United Republic of Tanzania.

One hundred days on and all the so-called Constitutional Law specialists in Tanzania have ignored the fact that the President of the United Republic of Tanzania has a duty to uphold the Constitution of the United Republic of Tanzania which states in article 8(1) that;

“The United Republic of Tanzania is a state which adheres to the principles of democracy and social justice and accordingly (a) sovereignty resides in the people and it is from the people that the Government through this Constitution shall derive all its power and authority (b) the primary objective of the Government shall be the welfare of the people; (c) the Government shall be accountable to the people; and (d) the people shall participate in the affairs of their Government in accordance with the provisions of this Constitution.”

In addition, article 9(1) states that “the State authority and all its agencies are obliged to direct their policies and programmes towards ensuring (h) that all forms of injustice, intimidations, discrimination, corruption, oppression or favouritism, are eradicated and (k) that the country is governed according to the principles of democracy and socialism.”

That is the United Republic of Tanzania I believe in. Not this shadow of a country that is not prepared to even face the evil in its own backyard. I long for a democratic United Republic of Tanzania in practice, where sovereignty resides in the people and not in CCM; where the government is made accountable to the people through the ballot box; where the people participate in the affairs of their government through the ballot box.

What has happened in Zanzibar has been an absolute breach of these fundamental principles of the Constitution of the United Republic of Tanzania and all we hear are excuses on why the problem does not concern the Government of the United Republic of Tanzania.

A hundred days on and we are told by Mr Lubuva JA (rtd) that the President of the United Republic of Tanzania cannot intervene in the Zanzibar impasse because he would be interfering with the independence of the Zanzibar Electoral Commission.

Mr Lubuva J.A’s (rtd) statement is premised on the unfortunate assumption that ZEC is independent. Well, forgive me for ruining the very well crafted picture of an independent ZEC but the truth of the matter is that the chairman of ZEC, the vice chairman of ZEC, and all members of ZEC were appointed by Ali Mohamed Shein, yes the very man who is running for a second term as President of Zanzibar.

Save for the proviso that two, out of the seven members, were appointed by Ali Mohamed Shein on the recommendation of Seif Shariff Hamad. Would you describe a referee and the linesman in a football match appointed and paid for by one of the competing teams as independent?

In addition, Jecha Salim Jecha, the vice chairman of ZEC is a CCM cadre who unsuccessfully ran for nomination as a CCM representative for the seat of Amani in 2010.

Would you think a Chelsea player who failed to be picked to play in the first team in the FA Final at Wembley between Chelsea and Manchester United independent enough to be the senior referee for the match?

What seems so clear in a football match which is played for nothing more than pride and a trophy is made to appear complicated and confusing by the very people we rely on to clarify matters when we are dealing with the lives of 1.3 million people.

May be it is the English language that is confusing all of us? Independence of a body takes much more than a declaration of the fact by a few learned individuals, it goes to the very heart of its formation.

So, let me pretend for a moment that I believe ZEC is independent; that leaves me with a very large dilemma. How does one reconcile ZEC’s alleged independence, which allows Jecha Salim Jecha to unilaterally and “independently” nullify an election that has been described by all observers as free and fair and which to date is described on the ZEC website as “peaceful,” with the requirements of the Constitution of the United Republic of Tanzania that this country, including Zanzibar, “is governed according to the principles of democracy and socialism?”

Is ZEC’s independence so sacrosanct that it soars above our Constitution and the President’s oath to protect it? Does ZEC have the right to make a mockery of our democracy?

I would have thought that these questions are so fundamental that there would, at the very least, be a disagreement between the Government of Zanzibar and the Government of the United Republic of Tanzania on whether the Constitution of the United Republic is being adhered to by the Government of Zanzibar, in the present circumstances.

One hundred days on and the government of the United Republic of Tanzania is so sure that Ali Mohamed Shein’s conduct is correct that it has not even asked for the formation of a Special Constitutional Court under article 126 of the Constitution of the United Republic of Tanzania because as far as it is concerned Ali Mohamed Shein is the vice chairman of CCM as well as the President of Zanzibar and instead it is preoccupied with explaining to us why it cannot intervene.

You would think the President was being asked to intervene in Kenya. Oh dear, I must be forgiven for my short memory; of course the United Republic of Tanzania did intervene in the Kenyan crisis.

We sent Benjamin William Mkapa and Jakaya Mrisho Kikwete, who was at the material time our president. Apparently, and according to the experts, the president of the United Republic of Tanzania is only barred constitutionally from interfering in Zanzibar because ZEC is an independent commission.

Didn’t Kenya have an “independent” electoral commission? Let us hope for the sake of the Union that Zanzibaris have bought this argument, as we continue to be disenfranchised by a handful of CCM members in Zanzibar who the party is failing to control.

Ms Karume was called to the Bar in the Middle Temple and is an advocate of the High Courts of Tanzania and Zanzibar. She is presently senior litigation partner with IMMMA Advocates in Dar es Salaam. Email: Karume@immma.co.tz