TOWARDS RESPONSIBLE DEMOCRATIC GOVERNMENT Executive Powers and Constitutional Practice in Tanzania 1962-1992 Jwani Timothy Mwaikusa Thesis Submitted to the University of London for the degree of Doctor of Philosophy 1995 Law Department School of Oriental and African Studies ProQuest Number: 11010551 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010551 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 ABSTRACT With independence in 1961, the British system of Parliamentary government, incorporating the principle of responsible government, was formally adopted in Tanzania. But within only one year that system was discarded first, by adopting a Republican Constitution with an executive President in 1962, and then by adopting a one-party state system of government in 1965. The one-party system reached the height of prominence through the concept of "Party Supremacy", and dominated constitutional practice for a whole generation before giving way to demands for greater freedom and democracy through competitive politics in 1992. Throughout this time, however, the preambles to successive constitutions proclaimed that the government in Tanzania was responsible to a freely elected Parliament representative of the people. This thesis traces the constitutional developments in Tanzania during the first three decades after independence so as to assess the extent to which the principle of "Responsible Government" has been maintained. It analyses the adoption of the Republican Constitution with an executive President having enormous powers even to override the Parliament, and tries to show that the one- party system and the concept of Party Supremacy, while appearing to replace Parliament with the Party as the instrument of democratic responsibility, merely served to legitimise the government tendency of holding the people ^responsible to it, rather than the other way round. While acknowledging the contribution of external influence in reversing that trend and working towards changes for a more responsible and democratic government as signalled by the constitutional amendments of 1992, the thesis highlights some internal factors which have played very important roles in that development. These include the personal contribution of the ii first President of Tanzania, Julius Nyerere, who, although very dominant, nevertheless had the foresight to reverse his previous positions and welcome a Bill of Rights in the Constitution in 1984, and encourage competitive politics in 1990. The thesis welcomes these latest changes, but still insists on greater popular participation in making a new Constitution and in all future constitution making. ACKNOWLEDGEMENTS For this work I wish to thank the Association of Commonwealth Universities for awarding me a Commonwealth Scholarship which enabled me to undertake this study at the School of Oriental and African Studies, which was a wonderful place to do this kind of work. I also thank the University of Dar es Salaam for granting me study leave for the entire period I was engaged in this work. Many people helped me through with the work. Paul Nyerembe, Salome Makange and Susan Mkapa were among the friends and colleagues who helped me a lot during the early stages, though they may not have realised this. Mosley Owino and Bwire Kaare gave me wonderful support during the write-up stage at London House. My colleagues Issa Shivji and Mike Wambali happened to be at Warwick at the same time and readily gave me the help I needed from them, while David Brewin was always a wonderful generous host - my visits to his house in London were always very refreshing. Angelo Mapunda, Hamid Nassoro and Peter Kasikila often sent me documents that I needed from Dar es Salaam. I wish to thank them all. It is customary to thank one's supervisor, but I would like to do more than thank Professor James Read because to me he was more than just a supervisor. His patience with me had no limits, and is not easy to measure up to the extent of encouragement he gave me in doing this work. I wish to thank him very much. While I was writing this thesis in London, my family endured by absence from them in Dar es Salaam without complaint. I wish to thank them for their patience. There are many others, impossible to mention them all by their names, who helped me in various ways. I thank them all. But none of all these good people is responsible for the shortcomings of this work. Mecklenburgh Square October 1995 iv TABLE OF CONTENTS Title Page ........ i Abstract ........ ii Acknowledgements ........ iv Table of Contents ........ v Table of Statutes ........ xi Table of Cases ........ xx List of Abbreviations ....... xxvi A Glossary of Swahili Words ..... xxviii A Chronological Profile of Constitutional Events . xxix CHAPTER ONE: General Introduction 1.1: Background and Major Premise .... 1 1.2: Purpose and Relevance of the Study . 3 1.3: Literature Review ...... 9 1.4: Research Methodology ...... 15 1.5: Scope and Outline of the Study .... 19 CHAPTER TWO: Adoption of the Principle of Responsible Government 2.0: Introduction ....... 25 2.1: The Count-Down to Independence . 2 6 2.2: The Nationalist Movement and Responsible Government 34 2.2.1: The Aims of the Colonial Authorities . 36 2.2.2: The Expectations of the Indigenous Population 41 2.2.3: The View of the Nationalist Leadership . 45 2.3: An Overview of the Independence Constitution 51 2.4: Independence: A Pact of Concessions and Compromises 59 2.4.1: The Colonial Compromises . 59 2.4.2: Nyerere's Compromises .... 63 CHAPTER THREE: The Government Under Nationalist Leadership 3.0: Introduction ....... 68 3.1: Triumphant Nationalism and the Challenges of Independence . 7 0 3.1.1: The Alienating Effects of Independence . 72 3.1.2: Growing Intra-Party Rift .... 74 3.1.3: Nyerere7s Resignation: A Tactical Appeasement 78 3.2: The Republican Constitution of Tanganyika . 84 3.3: The Emerging Pattern and Concepts of Democratic Government ...... 92 3.3.1: Democracy and the Role of Political Parties 94 3.3.2: The Justifications for a One Party System . 98 3.3.3: The Twin Objectives: Democracy and National Unity ..... 101 3.4: The Search for a One-Party Framework . 105 3.4.1: Laying the Ground for the One-Party State . 107 3.4.2: The Presidential Commission for the One-Party State ..... 110 vi CHAPTER FOUR: Government Responsibility Under the One-Party System 4.0: Introduction ....... 116 4.1: An Overview of the Interim Constitution of Tanzania 118 4.2: Changing Institutional Roles .... 125 4.2.1: The Decline of Parliament .... 126 4.2.2: The Ascent of the Party . .132 4.3: The Dominance of the Executive .... 136 4.3.1: Effect of Presidential Appointments . 137 4.3.2: A Powerless National Assembly . 143 4.4: Party Supremacy and the 1977 Constitution . 149 4.4.1: Background to the Constitution 1977 . 151 4.4.2: Party Supremacy in Practice . 157 4.4.3: The Party as an Instrument of Responsibility 163 4.5: Behind Party Supremacy: An Appraisal . 173 CHAPTER FIVE: The Role of the Judiciary and Other Controlling Agencies 5.0: Introduction ....... 181 5.1: The Independence of the Judiciary .... 182 5.1.1: Appointment and Tenure of Office . 184 5.1.2: Interference With the Judicial Process . 189 5.2: Judicial Control and Executive Attitude . 192 5.2.1: Proceedings Against the Government . 193 5.2.2: Attitude to the Due Process of Law . 196 5.2.3: Attitude to Court Orders and Legality . 201 vii 5.3: Executive Powers and Judicial Attitude . 207 5.3.1: Early Post-Colonial Experiences . 207 5.3.2: Contending With Executive Might . 211 5.3.3: After the Bill of Rights .... 217 5.4: Party Supremacy and the Judiciary .... 222 5.5: The Permanent Commission of Enquiry . 230 5.5.1: Set-Up and Jurisdiction .... 231 5.5.2: An Assessment of Its Role .... 235 5.6: The Commission for the Enforcement of the Leadership Code . .242 CHAPTER SIX: Party Supremacy and the Consolidation of Central Control 6.0: Introduction ....... 249 6.1: State Control of Popular Institutions . 250 6.1.1: The Trade Union Movement . 250 6.1.2: The Cooperative Movement . 2 57 6.1.3: The Local Government System . 264 6.2: State Control of Civil Organisations . 271 6.2.1: The Youth and Women Organisations . 273 6.2.2: Religious Organisations .... 278 6.2.3: Professional Associations .... 283 6.2.4: The Mass Media ...... 288 6.3: Community Rights and the State .... 295 6.3.1: The Case of the Ruvuma Development Association 298 6.3.2: Popular Participation and the Villagisation Programme . 3 05 6.3.3: Villagisation and Pastoral Communities . 311 viii 6.4: Responsible Government and the Role of Ideology . 316 6.4.1: "Ujamaa": the Extra-Legal Basis of Government Legitimacy ..... 317 6.4.2: Political Leadership and Ideological Commitment . .321 CHAPTER SEVEN: The Decline of the Party State 7.0: Introduction ....... 326 7.1: Some Limits of One-Party Democracy . 327 7.1.1: Law, Democracy and theVikao Culture . 328 7.1.2: Party Supremacy and A Centralised Oligarchy 335 7.2: The Fifth Constitutional Amendment Act 1984 . 342 7.2.1: Background to the Amendment .