Article 55(1) additionally empowers the President to appoint Ministers who shall be responsible
for such offices as the president may from time to time establish. He also has power to appoint
Regional Commissioners for the regions in the Mainland. Zanzibar retains its internal autonomy
in respect of non-union matters falling on that side.
It was argued by Mr. .Mbezi that the structure of the constitution points to a dual role for Union
government,i.e. as a Government responsible for Union matters and non-union matters for and in
the Mainland. He also submitted that the division of union from non-union matters could not have
been done without a purpose. In his view non-union matters on the Mainland have to be run by
Mainlanders, and the fact that they are constitutionally placed under the Union government does
not amount to their unionization. He therefore thinks that the appointment of Zanzibaris to run
these matters offends Art.4 (3). Mr. Mussa responded by pointing out that no provision in the
constitution compelled the President not to appoint Zanzibaris to such positions and should
actually be discriminatory if he did not do so. In his view the exercise of the power of
appointment was a matter of policy but not one founded on the Constitution.
The issue of Zanzibaris in “Mainland” ministries is presently a matter of considerable interest,
and seems to derive more drive from the polarized political situation which culminated in the ill
fated parliamentary notion for the government of Tanganyika. But sentiments apart, one would
certainly want to know the judicial position of non-union matters in and for the Mainland. This
dualism factor asserted by Mr. .Mbezi was recognized and articulated by the Court of Appeal in
Haji v.Nungu & Anor(1987) LRC (Const) 224 where Chief Justice Nyalali further stated (at
p.231) that in the basic structure of the constitution there are matters which concern exclusively
that area which before the union constituted what was then known as Tanganyika. He went on to
say that these matters under the scheme of the constitution fall under the exclusive dormine
government of the united republic.
Of course that case was concerned with a different matter thus the jurisdiction of the High Court
of the United Republic in election petitions yet even with that reference to the exclusive dormine
of the government of the United Republic of Tanganyika matters. I can not read a suggestion of
the unionization of those matters. There are various types of constitutions that are classified as
federal and ours could carry that appellation in the absence of a standard or ideal type of a federal
Constitution.
It is not uncommon for such constitutions to enumerate the areas reserved to the federated states
leaving the rest to the federal; government. The founders of the spheres could have enumerated,
exercised power and left the rest to the union government. In that case the phylosophy changu ni
changu, chako ni chetu(mine is mine, yours is yours) would have made considerable sense for
everything in and for the main land would have then been a union matter but that was carefully
avoided. Instead the Constitution enumerates Union matters only and expressly declares the rest
to be non-union; and this is so according to art. 4(3), “For the purpose of the more efficient
discharge of public affairs....and for the effective division of functions in relation to those
affairs...” I think, with respect, there is reason to insist on the significance of the division.
It occurs to me, that the fact of the non-union matters in the Mainland could have the effect of
blurring that division.
That said, however, it is difficult to draw the inference of unconstitutionality, which the Court
was called upon to draw in relation to those appointments. The provisions to which I have
referred, notably Art. 36(2) and Art. 55(1), do not limit the President in his choice of officers or
Ministers or in their disposition. The furthest we can go is to fall back to the words “subject to the
other provisions of this Constitution” in Art. 36(2) and this would lead to the division Union and