Court

Zanzibar secession bid suffers another blow

Regional court dismisses four prayers

 

The East African Community (EAC) headquarters in Arusha, Tanzania. PHOTOS | AGENCIES

Friday December 28, 2018

By Joe Lihundi

Tranquility News Reporter, Arusha

The East African Court of Justice (EAC) has dismissed four prayers of a 40,000-member lobby of Zanzibaris seeking separation of the archipelago from Tanzania Mainland.

The Zanzibaris will have to bear costs for the Application No 11 filed this year in reference to the main case No 9 of 2016 against the Revolutionary Government of Zanzibar, Chief Secretary of Revolutionary Council of Zanzibar and the United Republic of Tanzania.

Rashid Salum Adiy, head of the Zanzibar Rights of Freedom and Autonomy (Zarfa), a group not recognised by the Tanzanian authorities, filed the main application on behalf of the 40,000 supporters all from the isles, challenging the legality of the Union between Tanzania and Zanzibar.

In their four prayers of the dismissed application, the Zanzibaris were asking the regional court to order Union and Zanzibar governments not to amend their constitutions, carry out Union referendum, declare state of emergence in Arusha Region, and that both governments should be suspended from activities of the East African Community, pending determination of the main case.

The decision came after the court construed the applicants’ attempt to withdraw their prayers even before prio notice to respondents and the court as an abuse of its procedure.

Representative of the applicants Rashid Salum Adiy said in his defence that he had arrived in Arusha at midnight and that their counsel was bereaved, as his sister died in Mombasa a day before he was also scheduled to travel to Arusha.

“The document is unofficial unless you served the opposite counsel with it and informed the court beforehand,” Principal Judge Monica Mugenyi said.

Principal State attorney from Tanzania Mainland Alicia Mbuya said the respondents had no objection for the applicants’ plea to withdraw their prayers. “The court should, however, grant with costs we incurred in travelling all the way from Zanzibar and Dar es Salaam to Arusha,” she said.

The East African Court of Justice (EACJ) president, Justice Dr Emmanuel Ugirashebuja Second Left), vice president, Justice Liboire Nkurunziza (left), Justice Fakihi Jundu (Right) and the EACJ Registrar, Mr Yufnalis Okubo (Second Right) pose for a picture during a conference held in 2016 in Guyana, South America.

Mbuya said the application was a duplication of case No 9 of 2017 which the applicants had withdrawn before the same court and refilled it again this year. “We consider this act against the court procedure, it should be dismissed with costs,” she insisted.

She was flanked by Ally A. Hassan, Principal State Attorney from Zanzibar, Juma Msafiri, Senior State Attorney also from Zanzibar, and Boniphace Simon from the President’s Office.

Justice Mugenyi said the court had carefully listened to all parties and that it had agreed with the respondents that the applicants’ conduct in the matter was tantamount to abuse of the court process.

“This application is, therefore, dismissed under Rule 1.2 of the Court Rules with costs to the respondents,” the Principal Judge concluded. The rule in question reads: “Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

This is the Zanzibaris’ third application to hit snag at the regional court. In March this year, the court struck out two applications over failure to adhere to procedures.

In the first failed application, the Zanzibaris wanted the main case to be heard in the Isles for fear of their security and costs for them to travel all the way to Arusha.

In the second failed application, they wanted the court to declare the Union between Zanzibar and Tanzania Mainland inexistent, pending hearing and decision of the main case.

In their first prayer of the main case, the Zanzibar secession campaigners are appealing to the regional court to declare the Articles of Union between the Republic of Tanganyika and the People’s Republic of Zanzibar inexistent.

They argue that the Articles of Union in question are not duly executed and sanctioned by both substantive and procedural law.

Second, they ask the court to nullify the Articles of Union on grounds that they lack legal validity, legitimacy and mandate, as the two states did not carry out a referendum for their citizens to formulate them.

Third, they want the court to declare the Articles of Union ‘claimed’ to be signed on April 22, 1964, were not ratified three days later as alleged. They argue that they were altered at the discretion of any government’s body without the sanction of its respective countries.

Fourth, they want the court to nullify the Union between the defunct Republic of Tanganyika and the People’s Republic of Zanzibar for allegedly not being adopted into local legislation of the two respective states for them to have force of law.

Fifth, they want the EACJ to declare the Revolutionary Government of Zanzibar an autonomous and sovereign on its own on grounds that Zanzibaris had reluctantly accepted the ‘political Union’ as time passed by.

Six, they ask the regional court to direct the Revolutionary Council of the Revolutionary Government of Zanzibar and the Cabinet of Ministers to enact laws in a bid to re-establish the autonomy and sovereignty of the Zanzibar State.

Amendments of the Constitution were continuation of fraud and deliberate calculations to defeat the actual rights of the Zanzibaris, they explain.

Seven, they ask the court to institute other declarations and orders it deems suitable for dispensing justice to the archipelago, accusing the Union government of serving as an imperial power, treating Zanzibar as its colony.

Counsels at work in one of the East African Court of Justice (EACJ) court rooms.

“Since the people of Zanzibar and their elective leaders were not consulted at the time of the said Union, the government of Tanzania is superimposing itself upon the people of Zanzibar against the tenets, rules, laws and conventions of international, municipal and community,” they say.

They ask the court to determine whether Zanzibar is entitled to secede under international law based on the principle of self-determination and self-rule instead of being treated as a colony, sub-region or the province of Tanganyika.

Tanganyika secured independence in 1961 from the British. Zanzibar, an archipelago off the mainland, consisting of two large islands and many small ones, was granted formal independence two years later.

It became a constitutional monarchy ruled by Sultan Jamshid bin Abdullah. But this was short lived, as a bloody revolution overthrew the Sultanate early in 1964, with scores of Arabs murdered, mutilated and imprisoned by a paramilitary force dominated by black Africans who felt disenfranchised and disempowered.

The revolution eventually led to the merger of the Tanganyika with the spice islands of Zanzibar; bringing in the birth of the United Republic of Tanzania on April 26, 1964.

The EACJ is a judicial body set up to ensure adherence to law in the interpretation, application of and compliance with the 1999 Treaty establishing the East African Community.

The court, which is made up of the First Instance and an Appellate divisions,  rules on matters of the six members of the bloc, namely Tanzania, Burundi, Kenya, Rwanda, South Sudan and Uganda.

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