Sunday, June 25, 2017

The Legality of the Union

The Legality of the Union
The legality of the Union has become a political pinata used by those determined to oppose the Union at all cost. The link with the mainland has become the focal point of criticism. Indeed, there are legit, intractable issues that mainlanders have mostly failed to address in the Isles. Members of the ruling class in Zanzibar have consistently tried to address some of the thorn issues with painfully slow success. Part of the blame here lies squarely with the establishment in Dar es Salaam. Putting aside legitimate concerns, there are those who seek to exploit differences and prevailing challenges to score political points and undermine the Union. Nothing has been more divisive and the subject of historical acrobatics than the question of the Union.
There are those who indulge themselves in a utopia of the pre-1964 era as if they had access to that world. This anachronistic perspective only serves to confuse a generation that is desperately searching for a better life. The phenomenon is not new. It is the result of powerful social forces; memories and realities are twisted and morphed to accomplish a political objective. Culture and faith are a powerful force to reckon with at this juncture. Cultural nationalism has produced some of the most powerful movements around the world. When an argument is put forth maintaining that a unique and vibrant culture is in jeopardy due to visible or invincible foreign forces, the outcome is a powerful motive to join forces for the motherland. Much of these forces have been used to set fire on the Union. Rightly or wrongly, the Union, and increasingly, the Revolution, have become their main target.
A prominent Tanzanian Professor trained in law (not history) researched Zanzibar and perused at least one government archives abroad, and concluded that there is no evidence the Articles of the Union were published in Zanzibar. On the other hand, he presumed that the Revolutionary Council passed the articles. Wolfgang Dourado maintained that no law ratifying the articles existed in Statute Books of Zanzibar while Aboud Jumbe vehemently denied claims that the Council met to ratify the Articles of the Union. There are no simple answers. It is difficult for those in either side of the debate to provide conclusive evidence, with the exception that no record has been found to date to show that the law was published. Let us first turn to the legality of the Union as an example. 
The legal foundation of the new Zanzibar government was formed sometime in the period following the Revolution; this foundation did not exactly follow a linear trajectory. The context is everything in this case. A violent revolution followed by a cut-throat struggle for power shaped events that took place between January and April of 1964. The situation created an environment in which not all laws and normal procedures could be followed according to the book. Such is the realities of revolutions the world over. Zanzibar is no exception.
Leaders of different political groups from Zanzibar met in London, UK in 1963 to negotiate independence from Britain. The talks were held in Lancaster House in London. Ali Muhsin, Mohammed Shamte, Abdulrahman Babu, and Abeid Amani Karume were among those who took part in the talks. The ASP hired a Professor and lawyer named Thomas M. Franck to provide legal advise during the talks. The conference was a contentious one with all the divisive issues that divided the Island coming into the forefront. Professor Franck had taught at the University College, Dar es Salaam in 1963 and came into contact with members of ASP who sought his advice. The Zanzibar government did everything in their power to try to shape the Lancaster talks; they even tried to prevent Babu from attending meeting. The colonial officials and ZNP/ZPPP supporters were dismayed when they found out that Babu slipped out of Zanzibar, went to Dar es Salaam where he obtained a Tanganyika travel document, and proceeded to London. Franck helped prepare the ASP for the Lancaster House talks. He grew close to Karume, Makame, Jumbe, Hanga, and Babu. Franck would develop a close friendship with Karume. This friendship partly explains why he would eventually be asked to go back to Zanzibar in February of 1964. Professor Franck played an important role in shaping the legal foundation of the new government of Zanzibar. He drafted the first 9 Decrees that set the early legal foundation of the new government and provided important advise on how to proceed. According to at least one source, it is partly thanks to Franck that the very name People’s Republic of Zanzibar was adopted instead of just Zanzibar. 
The legal team available to the new Government from February to April of 1964 was very limited. It was made up of three “Arab lawyers, a Goan, and two English magistrates.” Lack of enough legal experts that could be trusted meant that ASP leaders had to seek legal advise elsewhere. For example, during the troubles of 1961/1962, the ASP employed a lawyer from Ghana to help them in court. The Goan lawyer, Wolfgang Dourado, was among a few lawyers the new government retained. Dourado was born in Zanzibar, educated at St. Joseph’s Convent Zanzibar and later earned his law degree from London School of Economics. He would become Zanzibar’s first Attorney General after the Revolution. However, Zanzibar leaders wanted outside help in drafting new laws in early February 1964.
Karume asked Babu to see if they could invite Franck to take part in a Constitutional Conference in Zanzibar sometime in the end of January /beginning of February 1964. The conference was set for the second week of February 1964. Babu approached Kambona who was able to contact Franck. Franck arrived in Zanzibar on February 9th to take part in the conference. He had contemplated whether to accept the invitation or not and eventually decided to do it. Franck worked with Dourado and several other lawyers to come up with some kind of legal framework for the new government. 
Professor Franck was one of the main legal advisors during the conference. He counseled Zanzibar leaders "not to draw a Constitution in a short time and rule by legal decrees until the situation was stable in several months or a year." Franck advised the new government that decrees were “not meant to be designated to establish a responsible democratic government and that well-devised decrees could be incorporated in the future constitution.” It was Franck who drafted the first nine decrees that were approved by the Government of Zanzibar and published between February and March of 1964. One of the decrees he helped draft included the Presidential Decree no. 9 of 1964. The decree stipulated a death sentence for any one who entered the Republic with intentions to organize “counter-revolutionary activities against the Government…”
In the midst of this confusing, dangerous, and fast evolving situation of January and February of 1964, not everything worked according to plans. A Revolution had just taken place, new leaders taking power did not have legal background or know how to set up laws, let alone abide by pre-existing laws to the teeth. How then can we expect a new administration with individuals struggling to assert power and establish a stable government in the two months following the Revolution, follow existing legal norms set by their predecessors as they seek to lay the groundwork for new laws? 
Perhaps asking about the legality of the Union in this case may as be as good as asking about the legality of the Revolution itself. After all, those who are making a career out of attacking the Union also attack the very legitimacy of the Revolution. By arguing that the Revolution was plotted in Dar es Salaam and carried out by mainlanders, they seek to delegitimize the Revolution itself. It is a clever strategy! The strategy absolves ZNP/ZPPP of any responsibilities for their blunders in the course of 1963 and the dire consequence it had within the Isles itself. The Union with all its complexities was a product of the time....
© Azaria Mbughuni

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