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Constitutional Innovation and Political Stability in Tanzania: A Preliminary Assessment

  • J. P. W. B. McAuslan and Yash P. Ghai

Extract

It is generally recognised that governments and methods of controlling them can exist without formal opposition parties—as in a one-party state.1 At the same time, the first flush of enthusiasm for one-party states in Africa is dying away and people are beginning to question whether a monolithic party structure is the best or the only way to achieve political stability and economic development, two driving forces behind much of African politics today. At this juncture, Tanzania presents a peculiarly apt case study, for here is a state which has moved through successive constitutional changes since independence from a Westminster model to a dejure one-party state—and in this, constitutional forms have reflected political reality—yet at the same time has endeavoured to ensure that opportunities for control and criticism have remained open.

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Page 479 note 1 See e.g. Government and Opposition (London), I, 2, 1965. We have found the ideas and concepts used a great help in writing our article, especially the article ‘Control without Opposition’ by Wjatz, J. J. and Przeworski, A., pp. 227–39.

Page 479 note 2 Only the mainland part of Tanzania will be discussed in this article. Zanzibar has its own separate executive, legislature, and party (the A.S.P.), with a wide measure of internal autonomy; it cannot be dealt with here without unduly lengthening the article.

For a discussion of the Republican Constitution (Constitution No. 2, December 1962– April 1964) and a brief reference to the Independence Constitution (Constitution No. I, December 1961–December 1962) see McAuslan, J. P. W. B., in The International and Comparative Law Quarterly (London), XIII, pp. 502–74. Constitution No. 3, April 1964–July 1965, was the Republican Constitution modified so as to take account of the Union with Zanzibar.

Page 480 note 1 For presidential elections see Interim Constitution: 1st Schedule—Constitution of T.A.N.U., and Presidential Election Act, No. 44 of 1965.

Page 480 note 2 It seems that the A.S.P. can decide for itself how many delegates it will send to an electoral conference; there is no limitation on numbers of A.S.P. delegates in either the Interim or the party Constitution. At the electoral conference of August 1965, there would appear to have been upwards of 100 delegates from the A.S.P., approximately one-fifth of the total: see Bomani, M. D., ‘Tanzania: Towards a One-Party State’, in Civilisations (Bruxelles), xv, 4, 1965, pp. 493501.

Page 480 note 3 A presidential election occurs if Parliament is dissolved, or if the President dies or resigns without first having dissolved Parliament, or has been unable to discharge his functions for six months, as certified by the Chief Justice.

Page 480 note 4 Report of the Presidential Commission on the Establishment of a Democratic One-Party State (Dar es Salaam, 1965), p. 23. For a brief summary of the work of the Commission and its recommendations, see Ghai, Y. P. and McAuslan, J. P. W. B., ‘Constitutional Proposals for a One Party State in Tanzania’, in East African Law Journal (Nairobi), I, 2, 06 1965, pp. 124–47.

Page 481 note 1 There are in fact no rules about campaigning for or against the single nominee of the party.

Page 481 note 2 For discussions of the presidential and general elections, see Harris, Belle, ‘Tanzania Elections’, in Mbioni (Dar es Salaam), II, 5, 1965, and Tordoff, W., ‘The General Election in Tanzania’, in Journal of Commonwealth Studies (Leicester), IV, 1, 03 1966, pp. 4764.

Page 482 note 1 McAuslan, op. cit. pp. 515–29.

Page 482 note 2 An occasion when the President is required to accept advice is where a judicial tribunal has recommended that a judge of the High Court be removed from office on certain specified grounds.

Page 483 note 1 Thus C. Y. Mgonja resigned from the civil service to contest a seat in the general election, won, and in the new Government was made Minister of Community Development and National Culture; he was not a party professional.

Page 483 note 2 See Namata, J. A., Principal Secretary to the President, ‘The Role of the Civil Service in a One-Party State’, in The Civil Service Magazine (Dar es Salaam), 7, 1966.

Page 484 note 1 Thus, although many of the party officers and delegates to meetings must be elected, the party constitution rarely states how they are to be elected, what rules are to be followed, etc.

Page 485 note 1 The cabinet of the party consists of the president, vice-president, secretary-general and national treasurer of T.A.N.U. It has power to spend up to £1,000 in an emergency, which must be certified as such by the president or vice-president of the party, who must report the circumstances to the next meeting of the N.E.C.

Page 486 note 1 See Interim Constitution, ss. 56–66, and Magistrates' Courts Act, No. 55 of 1963, as amended.

Page 487 note 1 For a useful description of these changes, see the background paper submitted by the Tanganyika Government to the African Conference on Local Courts and Customary Law—Record of a Conference held at Dares Salaam, 1963 (Geneva, 1963), pp. 101–15; and for a discussion of the courts in a one-party state, see Georges, P. T., ‘The Courts in a One-Party State’, in Law and Social Change in East Africa (Nairobi, forthcoming).

Page 487 note 2 See, e.g. the judgment of the High Court in Re An Application by Bukoba Club, in The Eastern Africa Law Reports (London, 1963), p. 478, when the Court overruled the refusal of the local licensing board to renew the liquor licence of the Club on the grounds of allegedly discriminatory provisions in its constitution. In the case of the Morogoro Club referred to below, no recourse was had to the courts.

Page 489 note 1 In many districts there is more than one constituency, but in 1965 the delegates to the A.D.C. were not restricted to voting solely for candidates for the constituency in that part of the district from which they came. In some cases, this had the effect of electing, to one or both of the first two places in the list, candidates whom delegates from the constituency for which they were standing did not want. It is interesting to note that there is no such thing as a constituency party in T.A.N.U.

Page 490 note 1 It is important to note that ‘In the exercise of its functions… the N.E.C. shall not… in any case where two or more candidates have been nominated for election in a constituency approve or select one candidate only for such constituency.’ Interim Constitution, s. 28 (5) (a).

Page 490 note 2 In the ensuing contests for these seats, three out of the four N.E.C.-favoured choices failed to win.

Page 491 note 1 Although established by the Interim Constitution, the role of the Electoral Commission in the conduct of elections is definitely secondary to that of the party. It consists of the Speaker of the National Assembly and from three to five other persons appointed and removable for good cause by the President, not being Ministers, junior Ministers, M.P.s, or holdersof certain other specified offices. The main functions of the Commission are to prescribe the boundaries of the constituencies and review them every eight to ten years; to assist the party run the elections in the manner outlined in the text; and to declare persons against whom corrupt and illegal practices have been proved in the High Court disqualified from participation in future elections.

Page 491 note 2 E.g. Mwanza East, where P. Bomani, Minister of Finance, lost his seat because of, inter alia, the drop in cotton prices, over which the Government had little control, and dissatisfaction with the activities of the Lint and Seed Marketing Board.

Page 491 note 3 Report of the Ad Hoc Committee on the Nomination and Electoral Process (Dar es Salaam, 1965).

Page 492 note 1 Such investigations as there have been of the campaign seem to show that some canvassing took place; illegal canvassing was also a charge used in election petitions.

Page 492 note 2 Tordoff, op. cit. p. 60.

Page 493 note 1 It is perhaps significant in this respect that the electorate gave short shrift to the defeated candidates who successfully challenged the conduct of the elections; the two who did so, and who were renominated along with their erstwhile successful opponents for the by-elections, were both much more heavily defeated than the first time.

Page 494 note 1 Wjatz and Przeworski, op. cit. p. 231.

Page 494 note 2 The 55 members are made up as follows: three Regional Commissioners, ex officio; up to 32 members of the Revolutionary Council appointed by the President of Tanzania with the agreement of the President of Zanzibar; up to 20 other persons who are qualified for election as constituency members and who are, or were, immediately preceding the Union, ordinarily resident in Zanzibar, appointed in the same way. In addition, the President of Tanzania's power to appoint up to so members from the whole of Tanzania, has been exercised with respect to certain Ministers in the Tanzania Government who come from Zanzibar. In April 1966, there were 41 members from Zanzibar in the National Assembly.

Page 494 note 3 Ministers and junior Ministers are required to be M.P.s, though with the exception of the Vice-President, who is leader of government business in the National Assembly, they may be either appointed or constituency members.

Page 494 note 4 On regional administration, see Warrell-Bowring, W., ‘The Reorganisation of the Administration in Tanganyika’, in Journal of Local Administration Overseas (London), II, 4, 10 1963, pp. 188–94; and Tordoff, W., ‘Regional Administration in Tanzania’, in The Journal of Modern African Studies (Cambridge), III, 1, 1963.

Page 495 note 1 The President has nominated the following as national institutions: T.A.N.U. Youth League (T.Y.L.); Umoja Wa Wanawake Wa Tanzania (U.W.T.), the main women's organisation of Tanzania; the National Union of Tanganyika Workers (NUTA); the Co-operative Union of Tanganyika (C.U.T.); the National Association of Chambers of Commerce; the Tanganyika African Parents Association (T.A.P.A.); and the University College, Dar es Salaam.

There are no rules stating how the national institutions are to nominate their candidates. The practice varied, but it appears that the governing bodies of the institutions made the nominations.

Page 496 note 1 The Interim Constititution provides that Parliament by an Act may make rules for the nomination and approval of persons for election by the National Assembly—but no such Act had been passed at the time these elections took place.

Page 496 note 2 de Jouvenal, B., Government and Opposition, I, 2, 1965, p. 172. Tordoff draws attention to the fact that officers of groups and associations such as NUTA, T.A.P.A., etc. did not do well in the elections where they were one of the two candidates. He suggests that a ‘law’ of ‘one man, one job’ was in effect applied by the electorate; ‘The General Election in Tanzania’.

Page 496 note 3 This point is discussed by Shils, E. in Government and Opposition, I, 2, 1965, pp. 175204.

Page 497 note 1 There were difficulties with the unions in the middle of 1962 over labour legislation restricting strikes; some union leaders were involved in the political unrest associated with the Army mutiny of January, 1964; shortly after that, the National Union of Tanganyika Workers (Establishment) Act, No. 18 of 1964, was passed, which drastically reorganised and centralised the unions under a secretary-general who was also Minister of Labour, and was appointed by the President. In May 1966 a Commission of Enquiry was appointed to investigate NUTA and make recommendations—an admission that all was not well.

Page 497 note 2 Presidential Commission, para. 40 (a).

Page 497 note 3 Proposals of the Tanzania Government for the Establishment of a Democratic One-Party State (Dar es Salaam, 1965). All the recommendations were accepted—except the one that members of the Revolutionary Council of Zanzibar should be ex-officio members of the National Assembly.

Page 498 note 1 The Committees are (a) Finance and Economic, (b) Political Affairs, (c) Public Accounts (already provided for in the Standing Orders), (d) Social Services, (e) Standing Orders (already provided for in the Standing Orders), and (f) General Purposes. The National Assembly is empowered to establish such other Committees as it thinks fit.

Page 498 note 2 Tordoff, W. deals with the T.P.P. in the course of a most useful discussion on the performance of the National Assembly since independence: ‘Parliament in Tanzania’, in Journal of Commonwealth Political Studies, III, 2, 07 1965, pp. 85103.

Page 499 note 1 Cf. Riggs, F. W., ‘Bureaucrats and Political Development: a paradoxical view’, in La Palombara, J. (ed.), Bureaucracy and Political Development (Princeton, 1963), p. 153.

Page 501 note 1 de Jouvenal, op. cit. p. 170.

Page 501 note 2 Presidential Commission, paras. 98–110.

Page 501 note 3 The Constitution of Zambia attempts to get round this problem by providing legal aid for indigent complainants who wish to challenge an infringement of the human rights provisions of the Constitution.

Page 502 note 1 In many respects, the Act follows closely New Zealand's ‘Ombudsman’ Act of 1962.

Page 503 note 1 This requirement was not in the Bill as originally published in November 1965; it was introduced by a government amendment at the committee stage in February 1966.

Page 503 note 2 On being appointed to the Commission, members must resign from all other public offices. But there is no ‘quarantine period’ between ceasing to be a member of the Commission and taking up another public appointment.

Page 504 note 1 The Chairman receives £3,000 p.a.—the same as the President; the members £ 2,000p.a. —slightly less than a Principal Secretary. Their salaries are charged on the Consolidated Fund.

Page 509 note 1 Were this to happen, the party might become a greater factor of instability than if it were not part of the constitutional system. This emphasises the need for the party to keep open its two-way channels of communication.

Page 510 note 1 Riggs, op. cit. The latter two defects were not always absent from the colonial service.

Page 510 note 2 Marx, F. M., ‘The Higher Civil Service as an Action Group in Western Political Development’, in La Palombara, op. cit. p. 64.

* Yash Ghai is Senior Lecturer in Law at the University College, Dar es Salaam; Patrick McAuslan, who was formerly Lecturer in Law there, is now Lecturer in Law at the London School of Economics and Political Science. We would like to thank Professor S. A. de Smith, Catherine Hoskyns, Professor R. C. Pratt, and A. W. Bradley, for reading through and commenting on drafts of this article. The views expressed, however, are our own.

Constitutional Innovation and Political Stability in Tanzania: A Preliminary Assessment

  • J. P. W. B. McAuslan and Yash P. Ghai

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