THE ZANZIBAR POLITICAL IMPASSE: The way I see it

Pius Msekwa

By Pius Msekwa
MANY people have written, or talked about, the current political impasse in Zanzibar. They have offered a variety of different opinions, ranging from those who have apportioned blame wholly the Zanzibar Electoral Commission (ZEC), which, they allege, created this particular crisis through its questionable action of nullifying the results of the elections at a time when the process of counting the votes casted was actually in progress.

This also includes blaming other national political actors allegedly for their failure to take action to resolve the said impasse; to opinions fully supporting the action taken by the Zanzibar Electoral Commission (ZEC).

This article is no more than a contribution to these ongoing discussions. The Constitution of Zanzibar, 1984 I would like to discuss the matter from the perspective of the provisions of the Zanzibar Constitution, 1984. The interpretation of the relevant provisions of the said Constitution has in fact been at the core of the dispute.

Matters of the interpretation of laws are normally the preserve of the relevant competent courts. This particular matter would probably have been easily resolved by the High Court of Zanzibar, had that Court been approached by any of the contending parties. But because that route has not been taken, the problem continues.Aluta continua! Regarding the instant crisis in Zanzibar, a correct interpretation by a competent Court is required because the source of the dispute appears to be located in article 28 (1) and (2) of the Zanzibar Constitution, since the contending parties have both relied on these particular provisions. Article 28(1) provides as follows: “Kufuatana na Katiba hii, mtu ataendelea kuwa Rais mpaka : (a) Rais anayefuata ale kiapo cha kuwa Rais . . .”

This is the provision which is claimed to have kept Dr Ali Mohamed Shein in office, after the results of the October 25 2015 general election were nullified by ZEC. On the other hand however, article 28(2) provides as follows: Kufuatana na maelezo ya kifungu cha (1) cha kifungu hiki, Rais ataacha madaraka yake baada ya kumalizika miaka mitano kuanzia tarehe ambapo (a) kama yeye ni mtu ambaye ndiyo mara ya kwanza amechaguliwa kuwa Rais chini ya Katiba hii, alipokula kiapo cha uaminifu na kiapo cha kuwa Rais”.

This is the provision which the opponents of Dr Shein have relied on in challenging the legality of his continued stay in office. The question, therefore, is: Which side is right in this dispute? This question, surely, can only be authoritatively determined by a competent Court of law, which is the High Court of Zanzibar. What about article 33(1)?

However, there is another article of the same Constitution, which also appears to be directly relevant to this dispute; but which, surprisingly, is not being referred to. This is article 33(1), which provides as follows:- “Endapo Kiti cha Rais kitakuwa wazi kwa sababu nyengine yoyote itakayomfanya Rais kushindwa kutekeleza kazi za Rais, watu wafuatao, kwa mujibu wa mpangilio, watashika nafasi hiyo; (i) Makamo wa Pili wa Rais, au ikiwa hayupo . . .”

In view of this, one would have expected that those parties who are relying on article 28(2) to lay the claim that Dr. Ali Mohamed Shein is in office illegally after the expiry of five years from the date on which he took the oath of office, should have demanded further that article 33(1) be now implemented, to enable the Second Vice President to take over the Presidency of Zanzibar.

But that appears to be no option for them. They only want the CUF candidate to be declared winner of the nullified presidential election! Post-election disputes in Zanzibar have a long history Post-election disputes in Zanzibar have a long history, going back to the pre-Revolution days.

For example, it is generally believed that the Afro-Shirazi Party’s dissatisfaction with the results of the 1963 general elections, (on the basis of which the instruments of Zanzibar’s independence were handed over to a coalition of the Zanzibar Nationalist Party (ZNP) and the Zanzibar and Pemba Peoples’ Party (ZPPP); ) was the root cause of the January 1964 Revolution, which was planned and executed by the Afro-Shirazi Party.

This belief is based on the records of that particular election, which show that the Afro-Shirazi Party obtained 54% of the total votes cast, but obtained only 13 seats in the Legislative Council, compared to a total of 18 seats obtained by the coalition formed by the ZNP and ZPPP, which together had obtained only 46% of the votes cast.

But Zanzibar history shows that this action taken by the Afro-Shirazi Party in response to the 1963 elections was only the culmination of several other confrontations arising from disputes over the election results of all previous elections. The relevant story of which is told briefly in the paragraphs which follow immediately below. Zanzibar’s past politics The British historian, John Robert Seeley, is on record as having written the following words in 1895: “History is past politics, and politics present history”.

A brief look at Zanzibar’s history, or past politics, shows that with the single exception of the 2010 elections, every other general election which has been held in Zanzibar since 1957 has produced identical problems, namely the non- recognition of the election results by the losing party, leading to violence, and more often with bloodshed. The first ever general election was held in Zanzibar in six constituencies, which had been created for that purpose.

Three political parties participated: the Afro-Shirazi Party (ASP), (African), the Muslim Association (Indian) and the Zanzibar Nationalist Party (ZNP), (Arab). ASP won in five of the Constituencies, the Muslim Association won in the sixth, while the Zanzibar Nationalist Party got no seat. The Zanzibar Government Annual Report for the year 1958 states as follows: “This year (referring to 1957) will be remembered for the manner in which it negatively affected the lives of every community in Zanzibar.

Traders, farmers, employed workers, fishermen, wakwezi (coconut tree climbers), and even house wives, were all badly affected. Contentious political discussions generate heated exchanges even among residents in the rural areas. Followers of different political parties boycotted funerals relating to their political rivals, and even boycotted their religious functions.

These were the negative consequences created by the results of the first general election in these Islands , whose people were previously living happily together in total harmony and peace”. Similar post-election violence occurred again in the subsequent general elections which followed in January 1961, June 1961, and October 1963, which took place prior to Zanzibar’s independence, and the January 12th 1964 Revolution.

For example, regarding the general election which was held in June 1961, it is reported that 68 persons were killed, and 350 others injured, in the post election violence that ensued.

The post-Revolution situation Soon after the 1964 Revolution, President Abedi Amani Karume, presumably utterly disgusted or angered by the way in which the Afro-Shirazi Party had been cheated and unfairly denied victory even when it had obtained a majority of the votes, declared publicly that “there would be no elections in Zanzibar for the next 50years”.

As we have just seen above, in the 1963 pre-independence general election the Afro-Shirazi Party had obtained 54% of the total votes cast, but, because of the then colonial Administration’s gerrymandering of the electoral constituencies in Pemba, the ASP was able to obtain only a minority of 13 seats in the Legislative Council (against the 18 seats won by the ZNP and ZPPP coalition), and was thus denied the right to form the government.

No elections, no violence. Because of President Karume’s proclamation of “no elections in Zanzibar for fifty years” , no elections were held there for many years after the 1964 Revolution.

But even when elections were eventually re-introduced under the 1979 Zanzibar One-party Constitution, no violence was recorded during the whole of that period, presumably because of there being no electoral competition with other parties under the One-Party system. The return to multi-party politics changed all that.

Then came the return to multi-party politics when, starting with the very first multi-party elections which were held in 1995, Zanzibar immediately reverted back to its former, pre-Revolution position of endless post-electoral antagonism between the competing political parties, namely between CCM, (the legal successor to the former Afro-Shirazi Party) ; and CUF, (the presumed successor to ZNP and ZPPP).

The results of the 1995 general election were immediately disputed by the losing party, the Civic United Front (CUF), which refused to recognize the legitimacy of the elected President, announced total non-cooperation with the incoming government, and forbade its elected members, both of the Union Parliament as well as of the Zanzibar House of Representatives, from attending the sessions of those Houses.

Some of its members started engaging in unlawful acts of undermining the government; whereupon the government reacted strongly in order to maintain peace, by arresting several CUF members and charging them with the gravest offence of treason, causing some of their members to flee to Mombasa in Kenya, for fear of being arrested. This situation inevitably created very high political tensions in Zanzibar.

An attempt was made at international mediation of that crisis, led by the then Commonwealth Secretary-General, Chief Emeka Anyaoku, a Nigerian citizen. His efforts were initially successful, leading to the signing in 1999 of an Agreement between CCM and CUF known in Kiswahili as MUAFAKA 1. The 2000 general election.

However, this Agreement turned out to be very short-lived, because the next general election which was held in the following year ( the year 2000), produced exactly the same old post-election disputes , with CUF (which had lost the election) once again refusing to accept the results of that election, and repeating its boycott strategies of the previous period.

The CUF organised a huge demonstration in Pemba in January 2001, which unfortunately turned bloody, when a number of people were killed, including a policeman who was on duty guarding the demonstrators. The genesis of ‘the government of national unity’ in Zanzibar The strategy of refusing to accept the results of a general election was again repeated in the next following election of the year 2005.

But, fortunately, that is when the two major political actors, Chama cha Mapinduzi (CCM), and the Civic United Front (CUF), agreed to find a longer- lasting solution to this seemingly never ending crisis, which re-occurred after every multi-party general election from as far back as 1957. A small team of negotiators was set up by each of the two parties, and given the mandate to find what would be a lasting solution. The negotiations lasted for 14 months, and were completed in March 2008.

That is when a new Agreement was reached, known in Kiswahili as MUAFAKA III, which resulted in the formation in Zanzibar of the Government of national unity, expressed in Kiswahili as “Serikali ya Umoja wa Kitaifa” (SUK).

The story told above also serves to underscore the value of negotiations as the correct methodology in finding a solution to a political problem. That is why there was great hope when talks were started between the leaders of the contending political parties soon after the crisis emerged.

These talks, however, failed to produce the desired results. In my humble opinion, this failure was due to the fact that the current political impasse is not wholly or entirely political.

Because it has within it significant elements of a legal or constitutional nature, which we pointed out at the beginning of this article; and this required a legal solution, namely a legal interpretation by the Zanzibar High Court, of which particular article of the Zanzibar Constitution was applicable in this matter. Is it Article 28(1), or 28(2)? And what about Article 33(1)?

/Daily News.