Support. Zanzibar voters cheer at a campaign rally ahead of elections
which were later nullified over alleged malpractices. AFP PHOTOS
While the East
African Community (EAC) has recently been sending election observer
missions to partner states during elections, its conscious absence in
mediating the Zanzibar situation was noted during a recent Kituo cha
Katiba (KcK) fact-finding mission to the isles.
"Zanzibaris were
disillusioned that even their own regional body had abdicated this noble
role," the mission notes in its report titled: Peace and Unity in the
Isles: Prospects of a Government of National Unity in Zanzibar.
The Treaty for the
Establishment of the EAC is clear on its obligations to partner state in
ensuring peace and good governance in the region.
The mission
believes that provisions in this treaty sufficiently oblige the EAC to
follow up on crises such as that in Zanzibar instead of merely stopping
at observing elections. Lessons from the Economic Community of West
African States (Ecowas) are instructive and scuttle the common argument
of non-interference in national sovereignty.
Be that as it may,
the mission saw better prospects of the African Union (AU) playing a
greater and more objective role in Zanzibar than the EAC.
Although the AU
intervention did not solve the crisis in Burundi, the AU Peace and
Security Council made several pronouncements about the situation in the
country on October 17, November 13 and December 17, 2015.
Furthermore, in an
effort to ensure the wellbeing of the citizens, the AU sent a high-level
mission to Burundi to discuss the deployment of an AU preventative and
protection force.
Under Article 4(b)
of its Constitutive Act, the AU adopted a shift of principal from
non-interference to non-indifference in matters of grave violation of
human tights and unconstitutional assumption of power in any of its
member states.
In July 2013, the AU suspended Egypt when the military overthrew the elected government of President Mohamed Morsi El Ayat.
The AU had in March of the same year suspended the Central African Republic (CAR) after rebels forcefully took over government.
Some regional organisations have successfully prevailed over undemocratic leaders wanting to overstay their time in power.
For example,
Ecowas, through its military mission code named 'Operation Restore
Democracy,' successfully forced out defeated Gambian president Yahya
Jammeh when he tried to cling on to power after losing elections.
"Ideally, the EAC
would have played a role. Even out of self-interest, the EAC should have
played a role in finding solutions to the Zanzibar crisis in order to
avert the likelihood of growing terrorism that has shown its ugly face
through bombings in virtually all partner states - Tanzania itself,
Kenya, Uganda, Burundi, Somalia in the neighbourhood and, most recently,
Mozambique - given the fear that Zanzibar may be fertile ground for
radicalism because of its large, idle and politically disgruntled youth
population," the report warns.
"However, there are
too many glass houses at the EAC level. All the countries are involved
in undemocratic and unconstitutional practices and have challenges
comparable to those pertaining to Zanzibar, such as electoral fraud,
violence, intolerance, ethnic tensions and bad governance. Intervening
in the Zanzibar situation might, therefore, be regarded by leaders in
East Africa as opening a pandora's box... ," the report adds.
"While some role
can be assigned to regional actors, the primary responsibility to
resolve the current crisis lies with the people of Zanzibar. All other
efforts can only be facilitative. Indeed, the people of Zanzibar, in
crafting the different Miafaka and the GNU, have amply demonstrated a
capacity to solve their problems," the report notes.
The mission
strongly believes in interventions from the continent, as they would
normally be brotherly and sisterly help and do not mean domination.
The mission also
notes, basing on the history of Zanzibar, that mediatory interventions
from the African continent, and particularly East Africa, are not new.
The first Muafaka
of 1958 was signed in Ghana, and 1963 Mbale Conference in Uganda,
supported by the Pan-African Freedom Movement for East and Central
Africa (PAFMEACA), attempted to reconcile the contesting Zanzibar
parties.
The current situation in Zanzibar
Zanzibar is currently faced with serious governance and constitutional issues.
The GNU, which was
formed in 2010 to bring the two contending parties - CCM and CUF -
together, crumbled in the face of the contested 2015/16 elections.
The GNU was the
last of several attempts at political negotiation, through home-grown
political settlements (Miafaka). As a result, there is a political
stalemate between the two parties.
Sharp political differences have also re-emerged and are visible in the day-to-day lives of ordinary Zanzibaris.
Underlying this
polarisation are class differences and a 'racial' issue which, over
time, has manifested as the Pemba-Unguja divide but, more discreetly, as
pro-Revolution and anti- Revolution sides.
The above situation
is exacerbated by a poorly performing economy characterised by high
levels of poverty among the majority of Zanzibaris, coupled with high
unemployment among the youth.
The situation
obtains against the backdrop of a history of violent, controversial and
hotly contested elections in Zanzibar since colonialism and an
incomplete constitutional review process for the whole of Tanzania - at
the root of which is the union issue believed to be crux of Zanzibar's
contemporary political, governance and constitutional question.
Zanzibar had had three attempts at reconciliatory accords, and two were successfully concluded.
Prior to the third accord - the Muafaka III, were two previous Miafaka - Muafaka I concluded in 1999 and Muafaka II in 2001.
Both Miafaka sought
to address the post-election violence and disharmony between the
government and opposition in Zanzibar which had characterised the isles.
The above issues persisted and the two Miafaka failed to be implemented, hence Muafaka III.
However, Muafaka
III was never signed, leading to another initiative, the Maridhiano. The
backdrop to these reconciliations is Zanzibar's turbulent and
controversial politics.
Out of concern
about the post-2015/16 election political developments in the country,
KcK sent a fact-finding mission to Zanzibar from late 2017 through to
early 2018.
The team comprised
of the following members: Prof Frederick Jjuuko (Uganda), professor of
jurisprudence, School of Law, Makerere University (head of mission);
Florence Simbiri Jaoko (Kenya), former chairperson, Kenya National
Commission on Human Rights, lecturer at the School of law, Nairobi
University and special envoy of the Geneva-based Global Alliance of
National Human Rights Institutions (GANHRI); Prof Sabiti Makara
(Uganda), school of social science, department of political science and
public administration, Makerere University; and Edith Kibalama,
executive director, KcK.
The mission engaged with a wide spectrum of stakeholders from diverse backgrounds and occupations.
The major goal of
the mission was to provide an avenue for Zanzibaris to express their
views and exchange ideas about their country's constitutional future.
The specific
objectives were to: provide a neutral forum for popular assessment of
the GNU established in 2010 - its achievements and challenges in the
light of Zanzibar's constitutional and political development; capture,
document and assess the voices of Zanzibaris on outstanding
constitutional issues following the 2015 elections, the implications for
the future, and recommendations for constitutional reform and the way
forward; and identify key strategies to move Zanzibar's constitutional
agenda forward.
The mission
recommends the following six interventions to address the current
situation on the isles: restoration of the Government of National Unity
(GNU); negotiations between Civic United Front (CUF) and Chama cha
Mapinduzi (CCM) and other stakeholders in Zanzibar/a national dialogue;
public interest litigation; constitutional amendments; a caretaker/an
interim government; and electoral reforms.
The mission
concludes that there are clear indications that the majority of
respondents want the political situation on the isles to be addressed as
a matter of urgency, well before the 2020 general elections.
"In the mission's
judgement, the absence of the GNU as prescribed in the constitution is a
serious detraction from a well-considered home-grown solution to the
endemic electoral violence in a society riven in the middle on account
of its racial, class, social and political attributes," the report reads
in part.
"The mission is of
strong opinion that the crisis may escalate to unprecedented levels come
2020, given Zanzibar's history of violent elections. It is best that a
solution is found long before then," the mission adds in its assessment
of Zanzibar's Government of National Unity and the post 2015/16
governance.
Constitutional review
As KcK's previous
missions and, indeed, the vast body of information on the Union of
Tanzania indicates, underlying the governance and constitutional issues
of Zanzibar is the Union question.
Indeed, the mission
received views on the Union and on the impact of the stalled
constitutional review process on the isles. "Ultimately, solutions that
do not address the Union structure are only solutions in part.
Postponing the
resolution only solidifies the belief among most Zanzibaris that only
the mainland gains from the Union while they, Zanzibaris, are oppressed
under it.
The reality is that
a number of them conceded that a properly structured and well managed
Union is in the interest of both the isles and the mainland," the
mission notes.
The mission,
therefore, recommends that the constitutional review process of the
Union Constitution should be revived and, in particular, on the basis of
its findings and earlier KcK missions, proposes the adoption of the
three-tier Union government as recommended by the Warioba Commission.
The mission also proposes a review of the Zanzibar constitution. This can precede the review of the Union constitution.
Constitutional issues
The process would enable Zanzibaris to tackle and resolve constitutional issues unique to Zanzibar, such as the GNU.
Other issues that
can be addressed include strengthening the ZEC and the judiciary. There
is urgent need to make ZEC independent and impartial.
In equal measure, the judiciary should be independent of other arms of the state.
In particular, in
relations to elections, the courts should be empowered to hear petitions
challenging presidential election results.
A Negotiated Settlement
The mission noted,
on the whole, the Zanzibaris are immensely proud of the GNU not only
because it was home-grown, but also because it was the first time the
issues of exclusion and discrimination in government and public life
were concretely addressed by both the ruling party and the main
opposition.
"The despondency
that now characterises Zanzibaris reflects great disappointment that
their sense of unity and tolerance brought on by GNU so quickly slipped
away and seems to be fading into oblivion. It is the mission's view that
all the above issues require a negotiated settlement and concrete
efforts by all the actors mentioned above. The mission noted a need for a
national dialogue to resolve the historical contentious issues in
Zanzibar... ," the report reads.
According to the
mission, the GNU as well as the Miafaka were negotiated settlements and
achieving reconciliation in the current scheme of things is feasible; it
is what Zanzibaris yearn for.
A negotiated
settlement is an inevitable option in view of the nature of Zanzibar's
history and politics and, in particular, the split in the middle between
the political support of the two major parties - CCM and CUF.
Furthermore the negotiated settlement should seriously address the issue
of power-sharing.
It is also clear from the mission findings that the critical issue in Zanzibar is the presidency.
Accordingly,
fundamental to the discussions would be issues such as how to make the
GNU work, and particularly a rotational presidency as opposed to an
elected one, and the powers of the two vice presidents under the GNU.
This approach assumes that elections for members of the House of Representatives would stay.
While the mission
proposes the above measures, it notes that the primary and final
responsibility for resolving the problems of Zanzibar lies with the
people of Zanzibar themselves.
Other actors can only play a facilitative role.
Kituo cha Katiba
Eastern Africa
Centre for Constitutional Development, a think tank based in Kampala,
addresses the problem of governments in Eastern Africa not respecting
their constitutions, which leads to gross human rights violations,
marginalisation, oppression, civil strife and coups. KcK provides
critical and up-to-date information to East Africans on
constitutionalism, good governance and democratic development.
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