Legal barrier holds back Katiba team from Z’bar
Dar es Salaam. A legal hitch will cause a delay in the Constitutional Review Commission that started its work three weeks ago, to venture into Zanzibar.The Citizen has established that, according to the Zanzibar Constitution, any law passed by the Union Parliament must be tabled in, and endorsed by the House of Representatives before it becomes applicable in the Isles.
The Constitution Review Act, which empowered President Jakaya Kikwete to form the Commission, has not been tabled, discussed and assented to by the House of Representatives, rendering it ineffective in Zanzibar.
The implication, therefore, is that, in the interim, the 32-member team chaired by Justice Joseph Warioba will confine its mission of collecting views on the envisaged new constitution to the Mainland.
The attorneys general of the Union and Zanzibar governments confirmed the legal requirement to this newspaper yesterday, citing Article 132 of the 1984 Zanzibar Constitution. Union attorney general Frederick Werema remarked: “It is true that the law (that gives the Constitutional Review Commission legal mandate) should be tabled in the House of Representatives and assented to before it becomes applicable in the Isles,” he said during a telephone interview.
He said article 132 (1), (2) and (3) of the Zanzibar Constitution clearly stipulates procedures of making Union laws valid and applicable in Zanzibar.
The AG pointed out, however, that, the delay to refer the law to the House of Representatives was a slight oversight, pointing out that required procedures will be followed to ensure that it is tabled in the next session scheduled to start in the middle of next month.
He remarked further: “I don’t think there is a need to wrangle about this issue. The Union Constitution is the Union issue and the Constitution Review Act was discussed and passed by MPs from both sides of the Union… because our goal is common, we will formalize the required procedures.”
Justice Werema added: “I know the process involved in the Zanzibar government should focus on the new constitution. There is no need for making much fuss over these procedures, which we have put in place ourselves, and which could delay the important process of crafting a new constitution.”
Justice Werema cited the issue of the criminal case that Zanzibar Vice-President Seif Shariff Hamad had been facing. He recalled that, Court of Appeal judges Francis Nyalali, Robert Kisanga and Augustino Ramadhani had ruled that any Union issue that had been debated and on which consensus was reached in the Union Parliament, becomes binding on both sides of the Union.
“No one has challenged this decision to date according to my knowledge,” he said.
His Zanzibar counterpart, Mr Othman Masoud Othman, re-confirmed the legal aspects connected to the Constitution Review Commission, indicating that, so far, it lacked a mandate to operate in the Isles.
He also endorsed as correct, Justice Werema’s views on the ruling on the Seif Shariff Hamad case Number 171 of 1992. Commenting on the issue, the Mji Mkongwe legislator, Mr Ismail Jussa, warned the attorneys general not to take the issue lightly, arguing that their positions didn’t entitle them to interpret laws.
“As far as I understand, the organ with powers to interpret laws in Zanzibar is the High Court and the special constitution court. A Court of Appeal ruling should not be used as a reference when discussing the new law,” he said.
“I once asked the minister for constitutional and justice affairs here in Zanzibar about the matter (Constitution Review Act) and he said it will be tabled in the budget session in June this year…..but still if the law is rejected by the house of representatives, members the commission would automatically be barred from working in Zanzibar,” Mr Jusa said.
LEGAL ISSUES: WHAT ZANZIBAR CONSTITUTION SAY ON NEW LAWS
132.(1) No law enacted by the Union Parliament shall apply to
Zanzibar unless that law relates to Union affairs only and having complied
with the provisions of the Union Constitution.
(2) The enactment shall be submitted to the House of
Representatives by the responsible Minister.
(3) Where subsidiary legislation is made in terms of the
authority provided for in sub-articles (1) and (2) of this Article in
accordance with the law shall only apply on compliance with the
conditions in the parent Act as prescribed in this Article.