AG refutes legal obstacles to Katiba review law in Zanzibar

By Rodgers Luhwago

27th May 2012

CommentsThe government has said there is absolutely no legal obstacle that will delay the Constitutional Review Commission (CRC) to work in the Zanzibar archipelago as it is perceived by a section of the public and the media.

Speaking to The Guardian on Sunday in a brief telephone interview yesterday, Attorney General Frederick Werema (pictured) said the commission, which is headed by Judge Joseph Warioba, would not violate any law if it travelled to Zanzibar to perform its duties of collecting public views on the envisaged new Union constitution.

The commission started gathering public views on the new constitution about three weeks ago and is expected to visit Zanzibar in due course for the same purpose. According to the government, the new constitution is expected to be inaugurated on April 26, 2014 when the country commemorates 50 years of the union between Tanganyika and Zanzibar.

Debate still rages whether it would be legal for the commission to work in Zanzibar, considering that the Zanzibar constitution directs that any law passed by the Union parliament has first to be adopted by the House of Representatives before it becomes applicable in the Isles.

AG Werema said: “As matter of fact the practicality of this matter is wrongly perceived by the public,” he said, explaining that submitting a law passed by the Union parliament to the House of Representatives for adoption does not mean that the House of Representatives debates the law afresh.

According to Werema, the Constitutional Review Act, 2011, which was passed by the National Assembly last year does revised early this year, does not need to be adopted by the House of Representatives simply because Zanzibar had its representation in the National Assembly and the law passed had to do with a Union affair.

“We, the attorneys general, don’t interpret laws but what is required to be done, in this case, is for the information on the passed law to be submitted to the House of Representatives. It is not the law that should be tabled and discussed. In my view, I hope this will be done in the meeting of the House of Representatives early next month,” said Werema.

The argument over the matter surrounds Article 132 (1), (2) and (3) of the Zanzibar Constitution of 1984. Sub-article 1 states, “No law passed by the Union Parliament shall apply to Zanzibar unless that law relates to a Union affair and has complied with the provisions of the Union Constitution”.

Sub-article 2 states: “The enactment shall be submitted to the House of Representatives by the responsible minister,” while sub-article 3 says: “Whereas subsidiary legislation is made in terms of the authority provided for in sub-article 1 and 2 of this Article in accordance with the law shall only apply in compliance with the condition in the Parent Act as prescribed in this Article”.

According to the Union constitution, Zanzibar is well represented in the Union parliament. Apart from electing members from the House of Representatives, Zanzibaris also elect 50 constituency members to the National Assembly. There are 18 constituencies in Pemba and 32 in Unguja.

Another advantage that Zanzibaris have is that members of the House of Representatives normally elect five representatives from among themselves to enter the National Assembly.

Zanzibar Minister of State in the Vice President’s Office Mohammed Aboud Mohammed echoed Werema’s views, stating that the passed Constitutional Review Act, 2011 could also work in the Isles without requiring any further procedures by the House of Representatives. According to the minister, the law does not require any nod from the House of Representatives since it addresses a Union affair. He said the Union constitution of 1977 bestows powers upon the National Assembly to enact laws that deal with Union affairs.

The minister said the contents of the Constitutional Review Act, 2011 address issues to do with the Union.

“The Union Parliament has been given powers to enact laws whose application stretches to Zanzibar without prior approval by the House of Representatives if such a law addresses Union affairs,” he said.

He said if a law passed by the National Assembly has nothing to do with Union affairs then such a law could not operate in Zanzibar before being endorsed by the House of Representatives.

The minister said both the Union and the Zanzibar governments were careful about enforcing laws, adding that they were ready to address any hitches that would emerge.

Clerk to the House of Representatives Yahya Khamis Hamad also concurred with minister’s remarks that the National Assembly had powers to enact laws addressing Union affairs.

He said the contested articles in the Union and Zanzibar constitutions were not new, adding that the procedure has been in use in enacting laws that have application in Zanzibar.