On the 40th anniversary of the adoption of Tanzania’s first permanent constitution, Nick Branson points to where this distinctive document shows significant signs of strain.
Tanzania’s 1977 constitution – katiba in Swahili – provides for a dual government structure. This model is unique in the African context, where several other states have established federations. In lieu of such a model, Zanzibar retains its own executive, legislature, and judiciary; while a parliament in Dodoma and a president in Dar es Salaam take decisions for both the mainland and the Union. As uncertainty over the exploitation of offshore oil and gas illustrates, the 1977 constitution also remains ill-suited to resolving tensions between the two constituent parts of the United Republic.
In January 2011, then president Jakaya Kikwete promised Tanzanians a new constitution, prompting an unprecedented degree of popular consultation throughout 2012. Drawing on the views of citizens, a Constitutional Review Commission, composed of legal experts in equal numbers from Zanzibar and mainland Tanzania, recommended an entirely new constitutional settlement with three governments: one for the Union, one for the mainland, and one for the Isles.
This model was rejected by a Constituent Assembly at the objection of Tanzania’s ruling party, Chama Cha Mapinduzi (CCM). A less ambitious draft constitution was forced through the assembly amid an opposition boycott, although this was never put to a popular referendum as planned – the vote was called off ahead of general elections in October 2015.
Kikwete’s successor as president, Dr John Magufuli, has paid little attention to issues unearthed by the constitutional review process. His government has yet to budget funds for the referendum, essentially halting Kikwete’s initiative. Although a recent cabinet reshuffle installed a justice minister regarded as more sympathetic to constitutional reform, President Magufuli appears more inclined to exploit legal ambiguities than to resolve them.
State House raised no objection when Zanzibar’s House of Representatives (essentially a devolved assembly) began to legislate on matters which are the exclusive domain of the Union parliament. In this regard, Magufuli appears to have lent tacit support to his CCM colleague, Dr Ali Mohamed Shein, the Isle’s dubiously-elected president. On 15 November 2016, Shein signed into law the Zanzibar Oil and Gas Act, which had been adopted by the House of Representatives in September 2016. This legislation authorises new institutions to govern oil and gas exploration, both on Zanzibar and offshore. Othman Masoud Othman, who served as the Isles’ attorney general until 2015, has deemed it unconstitutional.
CCM loyalists insist that Kikwete laid the grounds for Zanzibar’s 2016 Act when he signed a series of bills to regulate petroleum exploration and production; local content; revenue management; and the transparency of the industry. They argue that Section 4 of Tanzania’s Petroleum Act 2015 provided an opening for Zanzibar to govern and administer oil and gas activities on the Isles. One could compare this interpretation of the legislation to a local town council passing a by-law to govern skateboarding in a local park in the absence of the police taking an active interest in the matter.
Shein and his acolytes, however, have more ambitious plans. First, to expand the Energy and Minerals Department to include an oil and gas division, and establish this as a separate agency by 2020. Second, to create a National Oil Company (NOC), the Zanzibar Petroleum Development Corporation (ZPDC), entitled to enter into agreements with explorers. Third, to provide for an upstream regulatory authority to govern exploration.
International investors in Tanzania have already displayed a degree of exasperation at President Magufuli’s forthright and unpredictable nature. Presented with an additional degree of uncertainty over the governance of the offshore gas sector, they must now brace themselves for the entrance of a new player: the Government of Zanzibar. They might ask, what will ZPDC bring to the table, other than rent-seeking? Zanzibaris may also question whether their government is pursuing the right target by establishing shadow institutions, rather than bargaining directly with the Union authorities to obtain a greater share of revenue from offshore gas. Equally, an independent observer might ponder why oil and gas are explicitly a domain for the Union government, yet the constitution makes no mention of gold and diamonds.
Such questions may be moot in at a time when oil and gas prices remain low and international petroleum companies have already endured fifteen years of confusion. Shell, for example, signed a production sharing agreement (PSA) with the Government of Tanzania in July 2002, licensing it to operate in four blocks directly east of Zanzibar. Disputes between authorities on the Isles and the mainland have since delayed exploration. The PSA was made conditional on proposed amendments to the Petroleum (Exploration and Production) Bill 1980 being passed by the Union Parliament. This would have stressed that only the United Republic of Tanzania was vested with ownership and control of subterranean petroleum; however, the legislation was never ratified by Zanzibar’s House of Representatives. Such uncertainty has not deterred exploration by smaller outfits. Antrim Resources, which holds a license for a separate block, Zanzibar and Pemba, recently instigated aerial surveys.
Larger investors, however, will have to balance their appetite for exploration with the risk of a legal challenge. Assuming the Government of Zanzibar continues to legislate on oil and gas – despite having no constitutional mandate to do so – further questions abound. Which blocks fall under the domain of the Government of Zanzibar? As the establishment of the United Republic predates the delimitation of a maritime boundary, will the Government of Zanzibar have to negotiate a maritime boundary with the Union, or might Tanzania request adjudication as a signatory to the UN Convention on the Law of the Sea?
In such a messy context, one must ask whether the katiba provides for a sufficiently robust dispute mechanism. Tanzania does not have an equivalent to judicial review, under which the legality of Zanzibar’s 2016 Act might be tested. This task would fall to the Special Constitutional Court of the United Republic, the sole function of which “is to hear and give a conciliatory decision over a matter referred to it concerning the interpretation of this Constitution where such interpretation or its application is in dispute between the Government of the United Republic and the Revolutionary Government of Zanzibar.” In line with the lopsided katiba, rulings from the Special Court require a two-thirds majority among judges from Zanzibar and from mainland Tanzania.
Although tensions between the Union and Zanzibar governments have provided no shortage of opportunities to convene the Special Court, it has yet to meet. Aboud Jumbe was removed as president of Zanzibar after preparing a submission to the Court in January 1984. A decade later, in preparation for the first multi-party elections, the 11th constitutional amendment established a single vice-president. This eliminated a provision whereby the President of Zanzibar would be guaranteed representation as one of two vice-presidents. The incumbent, Salmin Amour, was called on to approach the Special Court then, but failed to do so.
In the absence of legal clarity, some Tanzanians might find themselves contemplating how different things might have been under the proposed constitution adopted by the Constituent Assembly. Had this document been passed by popular referendum, the Isles would have been granted greater autonomy to govern their own affairs through an alteration to the Schedule of Union Matters, which determine the domains where the Union Parliament is competent. Such a change would have enabled Zanzibar’s House of Representatives to legislate on oil and gas without exceeding its constitutional mandate. The proposed katiba would have also established a new Union Affairs Commission to adjudicate disputes between the different governments, potentially an improvement on the Special Constitutional Court.
As Tanzanians mark 40 years under the 1977 katiba, there is good reason to lament the unfulfilled promise of the constitutional process initiated by former president Kikwete and to ponder his successor’s reasons for disregarding the division of powers between the two parts of the Union.