RUAHA LAW REVIEW

(RLR)

Vol. 3-4, No.1, 2015-2016

Faculty of Law, Ruaha Catholic University

RLR, Vol. 3-4, No. 1, 2015-2016

ii

RUAHA LAW REVIEW

The Ruaha Law Review (RLR) is published two times per year. The RLR
publishes articles which deal with Public and Private Law, International
and Municipal Law with a special focus on legal issues relating to Africa.

It is hoped that the RLR will promote debate on current African legal
problems and it will, consequently, open new areas of research and enable
new questions to be asked so that the awareness of the role of justice in
human development may always grow.

The Ruaha Law Review welcomes the submission of contributions for

consideration by the editors with a view to publication. The RLR considers
contributions of varying lengths and styles. Authors must provide original
analysis and avoid summarizing previous research efforts. Articles should
be timely, readable to one who is unfamiliar with the topic, and contain
responsive and authoritative footnotes.

Thus, all contributions, correspondence, books for review and other

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But may also be posted to:

The Editors of the Ruaha Law Review,

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Ruaha Catholic University,
P.O. Box 774,
Iringa
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Contributions to the Ruaha Law Review express the view of their

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©2015-2016
Faculty of Law, Ruaha Catholic University
eISSN 2507-7939

RLR, Vol. 3-4, No. 1, 2015-2016

 Administration of the Journal

The Principal Editor:

Dr. Lillian Mihayo Mongella

The Managing Editor:

Mr. Zuberi Hamisi Ngoda

Editorial Board:
Ms. Ana Luis
Mr. Proches Prosper Tegamaisho
Ms. Caroline Steven Ruvuga
Ms. Sekela Mulungu
Mr. Ross Kinemo
Mr. Rwezaura Ladislaus Kaijage
Ms. Stella Nyanah Ahanor

The Advisory Board:

Prof. Dr. Simeon Kijanga Sungi,
The United States International University, Nairobi, Kenya
Prof. Frank Upham,
New York University School of Law, New York, N.Y. USA.
Prof. Dr. Gilbert Gornin,
Faculty of Law, University of Marburg, Germany.
Prof. Dr. Michael Kling,
Faculty of Law, University of Marburg, Germany.
Dr. Iur. Adrianna A. Michel,
Faculty of Law, University of Marburg, Germany.

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iv

ADMINISTRATIVE STRUCTURE OF THE FACULTY OF LAW,

RUAHA CATHOLIC UNIVERSITY

Dean
Dr. Lilian Mongella

Associate Dean
Judge Raymond Mwaikasu (Rtd.)

Head of Department, Private Law

Ms. Schola Mality

Head of Department, Public Law

Mr. Prosper Malangalila

ACADEMIC PROGRAMMES OFFERED BY THE FACULTY OF LAW,

RUAHA CATHOLIC UNIVERSITY

– Doctor of Philosophy (Ph.D) in Law: a three (3) year programme

– Master of Laws (LL.M) in Human Rights Law: a one (1) year
programme
– Master of Laws (LL.M) in Trade and Finance Law: a one (1) year
programme
– Master of Laws (LL.M) in Finance and Banking Law: a one (1)
year programme
– Postgraduate Diploma in Law (PGDL): a one (1) year programme
– Specialized Postgraduate Diploma in Law (SPGDL): a one (1) year
programme
– Bachelor of Laws (LLB): a four (4) year programme.
– Diploma in Law: a two (2) year programme.
– Certificate in Law: a one (1) year programme.

RLR, Vol. 3-4, No. 1, 2015-2016

 TABLE OF CONTENTS

An Analysis of Inheritance Laws In Tanzania:

A Platform for Legal Forum Shopping Amidst Recent
Developments in Statutory Laws, Constitutional and
International Human Rights Law
G. Kamugisha-Kazoba & L.M. Mongella .............................................. 1

Types and Techniques Of Legal Research For Effective Law

Reform In Tanzania
E.G. Mushi........................................................................................................ 33

The Rise of Copyright Imbalance: Technological and Legal

Ramifications
J. Ubena ............................................................................................................ 69

Assertion of Sovereignty over Mineral Resources in

Tanzania: Difficulties Emanating from the Set-up of the
Union between Tanganyika and Zanzibar
A. Kilangi …………........................................................................................... 99

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 ASSERTION OF SOVEREIGNTY OVER MINERAL RESOURCES IN
TANZANIA: DIFFICULTIES EMANATING FROM THE SET-UP OF
THE UNION BETWEEN TANGANYIKA AND ZANZIBAR

Adelardus Kilangi

ABSTRACT

Whereas the concept of sovereignty, including its extended use to

matters of natural and mineral resources, continues to be
controversial, countries have continued to jealously guard their
power and authority, often citing sovereignty as the main basis. This
includes asserting sovereignty over mineral resources. However, if
the concept of sovereignty in its original signification remains
fragmented, then its use in the context of a slightly different
paradigm, namely that of natural and mineral resources, becomes
even more difficult. These difficulties are compounded by situations
in which sovereignty itself is said to be divided or shared. In such
cases, asserting sovereignty over mineral resources becomes even
more complicated and almost a legal quagmire. This scenario
appears to be the case for the United Republic of Tanzania, which is
a result of the union between Tanganyika and Zanzibar. Regardless
of the fact that this union has crossed 50 years of age, the question of
sovereignty remains one of the thorny issues which continues to
haunt the Union and to attract endless debates. With this
perspective in mind, this paper briefly examines the concept of
‘sovereignty’, and quickly dwells on the concept of ‘sovereignty over
mineral resources’. This examination is done in the context of the
development of mining law generally and the principle of
‘Permanent Sovereignty over Natural Resources’, specifically, which


Cert. Philosophy, LL.B, LL.M, PhD; Former Member and President of the African
Union Commission on International Law; Senior Legal Advisor, African Minerals
Development Centre; Senior Lecturer, St. Augustine University of Tanzania.

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100 Kilangi

is a principle of international law. The paper traces also, although

briefly, the histories of Tanganyika and Zanzibar in their process of
emerging as sovereign powers, and the process of formation of the
United Republic of Tanzania, which became a new sovereign, and the
way this development has caused difficulties in determining
sovereignty over mineral resources in Tanzania. In its conclusion,
the paper underscores the point that, successful assertion of
sovereignty over mineral resources depends on whether or not
there is a common understanding of what sovereignty is; where does
it reside; and how should it be exercised.

1. Introduction to the Concept of Sovereignty

Although often used in international law and politics, the concept

of sovereignty has always remained fragmented. There has not been
one agreed understanding because the concept seems to bring with
it various meanings. 1 For example, while one of the theorists
associates sovereignty with absolute authority in the political
community,2 another asserts it as “...the authority of a culturally
diverse people or association of peoples, to govern themselves by
their own laws and ways, free from external subordination...”3 Thus,
while the first theorist appears to be absolutist in his orientation, the
second appears to be democratic. Nevertheless, according to the
Webster’s Revised Unabridged Dictionary, ‘sovereignty’ is generally
defined as:

“...an exercise of, or a right to exercise supreme

power; dominion; way; supremacy and independence,
and with respect to governance, sovereignty entails
freedom from external control.”

In any event the concept of sovereignty, as a socio-political fact,

existed long before the corresponding legal concept was formulated.
In ancient history, sovereignty was a quality attributed to the rulers

1 H. Kalmo & Q. Skinner (Eds.), Sovereignty in Fragments: The Past, Present and
Future of a Contested Concept, Cambridge University Press, 2010, 1.
2 Ibid., 2.
3 Ibid., 3.

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 Assertion of Sovereignty over Mineral Resources in Tanzania 101

of such early states like Egypt, Greece, Persia and Carthage.4 During
the time of the Romans, sovereignty was perceived as implying a
free nation, not subject to the government rule of any other nation.5
In the middle ages, the concept of sovereignty developed as a
principle of national unity. In this period sovereignty was seen as the
essence of the state, and the sovereign power was seen to possess
supreme power over the territory and its inhabitants, unrestrained
by any earthly law or power. In this conception, the political
structures of power were connected with territorial divisions to
ensure security of the area’s inhabitants.
It is therefore no wonder that, in the philosophy of Thomas
Hobbes, a Middle Ages’ political philosopher, sovereignty was to go
with absolute power and control over territory and inhabitants.6 In
international law today, sovereignty is still linked with the state and
its territory and people. In any case, sovereignty is associated with
power and authority exercised within the confines of the national
boundaries.

2. Application of the Concept of Sovereignty to Mineral

Resources: Sovereignty over Mineral Resources

2.1 Overview

It is important to start this part by observing that, if the concept

of sovereignty in its natural meaning remains fragmented, then its
use in the context of a slightly different paradigm becomes even
more difficult. Among other platforms, the concept of ‘sovereignty
over natural and mineral resources’ emanates from, or was helped
to develop in the context of development of mining law and
cemented in the development of the Principle of Permanent
Sovereignty over Natural Resources.

4 F. L. Grieves, Supranationalism and International Adjudication, Op. cit., 2.

5 Ibid.
6 R. Popkin, et al., (1977), Philosophy Made Simple, London, A Howard &
Wyndham Company, 65.

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102 Kilangi

2.2 Asserting Sovereignty over Mineral Resources in the

History of Development of Mining Law

2.2.1 Sovereignty over Mineral Resources in the

Roman Empire

Under Roman law, the concept of sovereignty over mineral

resources was developed in the context of the legal framework
governing land. In this framework, the ownership of all lands was
vested in the state, a phenomenon which was known as ‘dominium
strictum’. Thus, an individual or a subject could only enjoy the right
of possession over that land for various purposes including
extraction of minerals, with the obligation to pay royalties. This
system of enjoying the right of possession only was known as
‘dominium utile’. However, the dominium utile was permanent in
character, and therefore was also considered as some kind
ownership because if minerals were discovered in the land occupied
under dominium utile arrangements, it gave rise to a mining claim7.
Later on, Emperor Gratian (367 – 383) A.D, established exclusive
rights of the crown in gold and silver mines regardless of where they
were found. This was the merging in the state, of the dominium
strictum and dominium utile. As a result, if gold and silver were
found in public lands, they belonged to the sovereign. If they were
found in private lands, the miner would work on them but was
supposed to relinquish one-tenth (about 10%) of the produce to the
crown. To other mines, the crown only wanted a portion of the
produce, which was called canon metallicus. This system was
constitutionalized by Emperor Gratian, and was followed by
subsequent emperors, and therefore it became the expression of
Roman law in mining. The Roman System influenced many other
civil law systems of continental Europe and ultimately influenced the
position in many other parts of the world.8
In any case, the practice of establishing exclusive rights by the
crown in gold and silver mines during Roman era, and by devising

7 C. Lindley, A Treatise of American Law Relating to Mines and Mineral Lands

within the Public Land States and Territories and Governing the Acquisition and
Enjoyment of Mining Rights in Lands of the Public Domain, Wm. S. Hein
Publishing, 1988, 20.
8 Ibid.

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 Assertion of Sovereignty over Mineral Resources in Tanzania 103

the concept of cannon metallicus, was the beginning of development

of the concept of sovereignty over mineral resources.

2.2.2 Sovereignty over Mineral Resources in Britain

Britain had no comprehensive law on mining, beyond the use of

Common Law principles, and some stand-alone customary rules.
However, even with the lack of a comprehensive system, England
itself influenced developments in mining law elsewhere, notably in
America and Australia and in British held colonies in Africa.9 English
law had influence in two ways, firstly by way of principles of the
Common Law, especially regarding property, and secondly by way of
rules governing the subject of mines.10
When considering the question of property in mines under the
Common Law, the general rule was that minerals were the property
of the owner of the land in which they were found, because
ownership of land included everything beneath it.11 Thus, ownership
of the surface was considered a prima facie title to the ownership of
minerals. This prima facie ownership of minerals through ownership
of land continued until it was rebutted for the reason that the land
either contained ‘royal minerals’ or was subjected to some other
custom that defeated the prima facie ownership, or that, by virtue of
that custom, ownership of surface land was separated from
ownership of minerals beneath it.12
The expression ‘royal minerals’ meant gold and silver. These two
minerals belonged to the crown, even if they were found in private
peoples’ lands. That means, even when land was granted to a
subject, the grant did not pass to him ownership in gold and silver.13
The crown owned also all minerals in river streams and under the
sea bed. It is further observed that, the concept of royal mines
originates from Roman Law in the form of dominium strictum and

9 Ibid., 6.
10 Ibid.
11 C. Lindley, A Treatise of American Law Relating to Mines and Mineral Lands
within the Public Land States and Territories and Governing the Acquisition and
Enjoyment of Mining Rights in Lands of the Public Domain, Wm. S. Hein
Publishing, 1988, 6.
12 Ibid., 7.
13 Ibid., 7.

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104 Kilangi

dominium utile, and has given rise to the concept of “royalties” in

mining, in the sense that the developer has to pay something to the
crown even if the minerals are found in an area under his ownership,
because such minerals belong to the royal establishment. Silver and
gold were in this category because they were used to make coins,
which was a royal prerogative.14 So, the essence of concept of
sovereignty over mineral resources in respect of gold and silver as
developed during the Roman era appears to have been adopted in
Britain, exemplified by the concept of ‘royalties’.
However, it is important to take note of the fact that, in certain
parts of England and Wales some local customs regarding mining
were recognized, which in effect modified the general rule of
Common Law. In some of these localities, land was owned by some
landlords, but the ownership of all types of minerals belonged to the
Crown, and therefore the developer would only have access to these
lands by way of rending the land and the render would pay one-
fifteenth part of the produce to the landlord (about 7%). This estate
would run as a ‘chattel real’, and could pass on to the executor.15 A
‘chattel real’ is an interest in property in the equivalent of personal
property, not real property. But when it is called ‘chattel real’, the
rights in the property become personal property of the immovable
nature, but short of the freehold title.16
The other system run by customs was that of free miner, where if
a person showed proof to have worked a mine for a year and a day
and discovered some minerals, and if he was twenty one years of age
and above, he was entitled to be registered as a free miner, with a
commitment to pay rentals. This system was called ‘gale’, and the
free miner was called the ‘galee’ and the rentals he paid were called
the ‘galeage’. The type of property rights that the galee enjoyed was
fee simple.17
The third type of custom was a system whereby a subject of that
locality would enter any lands for purposes of prospecting for
minerals, except in churches, burial grounds, dwelling houses and

14 Ibid., 9.
15 Ibid., 10.
16 S. Rapalje & R. Lawrence, A Dictionary of American and English Law, The Law
Book Exchange, Ltd., 1997, 200.
17 C. Lindley, Op. cit., 12.

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 Assertion of Sovereignty over Mineral Resources in Tanzania 105

highways. Then the first discoverer was entitled to be assigned some

piece of land for purposes of mining. The miner was entitled to so
much land according to the extent of the discovery. The title to that
land would be given for purposes of working the mines. When
working stopped, the title ceased. So, the land was held under right
of use only (usufruct). This system, however, applied only in respect
of lead mines.18 The miner would pay in terms of ‘duties’ or
‘royalties’ to the sovereign, which constituted one-thirteenth (about
8%) of the proceeds.19
It is worth noting here that, developments in English property
law generally brought changes in which surface rights became
separated from underneath rights, and therefore it was possible to
find that the rights over the surface and the rights over minerals
beneath the surface are held by different persons. Yet, rights over
minerals could also be divisible as between various types of
minerals, and therefore it was possible to have many holders of
mineral rights in respect of one place.20 However, the sovereign
retained the overall rights over mineral resources, which was
assertion of sovereignty over the same especially in respect of silver
and gold.

2.2.3 Sovereignty over Mineral Resources in America

In the 18th Century when America was a Colony of Britain, rights

to minerals and to mine were given by the British Crown in the form
of Crown charters. Then miners were obliged to pay rentals in terms
of a portion of minerals. This was tantamount to asserting
sovereignty, by the British Crown, over the mineral resources of
America. The Land Ordinance of 1785, when enacted in America,
continued the system of Crown Charters, whereby miners were
required to surrender one-third (about 33%) of the total output
from public lands, of all gold, silver, gold, and copper mines.21 The
Crown Charter system was later replaced by the lease system.

18 Ibid., p. 13.
19 Ibid., p. 14.
20 Ibid., p. 18.
21 J. Leshy, Mining Law: A Study in Perpetual Motion, Resources for the Future,
1987, 9.

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106 Kilangi

In 1846, the leasing policy was abandoned, and mineral lands

ownership was offered through sale. This followed the policy of the
United States Congress in dividing land into two types, namely
mineral lands and non-mineral lands.22 However, in order to cater
for the need to do exploration and later mining, it was necessary to
separate the regime for dealing with land in places that were
described as non-mineral lands, but where prospectors wanted to
try. This was due to the fact that the previous regime did not provide
even a possibility of prospecting non-mineral lands, because a non-
mineral land was completely excluded from any mining activity. This
led also to the creation of mining law, separate from land law in
1866, following the development of the Federal Mineral Policy of
1866, both of which were replaced in 1872 by the Federal Mineral
Policy and Mining Law. From there, the mining law of the United
States has continued to evolve, but keeping the foundations
discussed above.23

2.2.4 Sovereignty over Mineral Resources in Australia

When minerals were first discovered in Western Australia in

1842, there was no law or regulation to govern the disposal of land.
But, for all the time the British settled in Australia until the middle of
the 19th Century, control over natural resources in the country was
in the hands of the British Government.24 It was in 1851 when the
first mining law in Australia was enacted. The key feature of the law
was that, all the minerals were owned by the crown which was an
assertion of sovereignty over mineral resources, and there was
adoption of the concept of mineral lands, or land required because of
having minerals in it as it had developed in America.25 But, mineral
lands and non-mineral lands were all priced the same, regardless of
the mineral content in them.26

22 Ibid., 9.
23 J. Leshy, Mining Law: A Study in Perpetual Motion, Resources for the Future,
1987. 9.
24 M. Hunt, Mining Law in Western Australia, Federation Press, 2009, 1.
25 Note that, the concept of ‘mineral lands’ was an influence of the developments in
America.
26 M. Hunt, Loc. cit.

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 Assertion of Sovereignty over Mineral Resources in Tanzania 107

When the British Governors in Australia granted title to land, the

grant just followed the old Common Law concepts about land, where
natural resources were presumed to be part of land, except for gold
and silver which were considered as royal minerals, which remained
vested in the Crown by virtue of the Royal prerogative,27 another
evidence of asserting sovereignty over mineral resources. In 1855,
New South Wales and Victoria got their new constitutions, by virtue
of which the control over what was considered as crown lands was
then vested in those colonies, and the colonial parliaments in those
colonies were permitted to legislate for ownership of minerals. From
that time on, mining law has continued to develop, but maintaining
the foundational features including the element of asserting
sovereignty over natural resources by the crown.

2.2.5 Effects of Developments in Mining Law on the

Concept of Sovereignty over Mineral Resources

The development of mining law, as it has been seen in the

jurisprudence of Roman law and in English law as well as its
application in the colonies in America and Australia, has refined the
concept of sovereign control of mineral resources.28 In this respect,
it appears that one of the main preoccupations of mining law has
been to define the role and position of the sovereign in matters of
mining. Thus, as far as the position of the sovereign is concerned, the
underlying philosophy in the development of mining law has been to
establish the expediency and justice to the right of the royal
establishment, or the sovereign, or the royalty. Developments in
some systems show that the sovereign is merely entitled to a certain
proportion in the profits or in the products. In others, the sovereign,
besides the share in the profits or products, has the exclusive right in
disposing of the resources and conferring them upon those whom he
thinks would be best suited to secure the interests of the state.29

27 Ibid., 2.
28 E. Bastida, et al., International and Comparative Mineral Law and Policy: Trends
and Prospects, Kluwer Law International, 2005, 37.
29 W. KEATING, Considerations upon the Art of Mining, M. Carey and Sons, 1921, 30.

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108 Kilangi

2.2.6 The Principle of Permanent Sovereignty over

Natural Resources and its Impact and Influence
on the Concept of Sovereignty over Mineral
Resources

The principle of Permanent Sovereignty over Natural Resources

(PSNR) is a principle of international law which was developed by
the international community in the 1950s, 1960s, and 1970s, mostly
through decisions and resolutions of the United Nations General
Assembly. The aim of developing the principle was to try to
moderate the exploitation of natural resources in the world. The
principle emerged in the context of concerns raised especially by
developing countries and former colonies that, the arrangements for
the exploitation of natural resources in their countries, which had
been put in place by former colonial masters, were not equitable.
Therefore, the central purpose of developing the principle was to try
to reverse the trend and make the arrangements for the exploitation
of resources become as equitable as possible. The principle contains
a set of rights and duties.
So far, the principle is embedded in several international legal
instruments,30 and was re-affirmed later by the United Nations

30 General Assembly Resolution 523 (VI) 1952, Integrated Economic Development

and Commercial Agreements; General Assembly Resolution 626 (VII), 1952,
Right to Explore Freely Natural Wealth and Resources; General Assembly
Resolution 1314 (XIII), 1958, Recommendations Concerning International
Respect for the Rights of Peoples and Nations to Self-determination; General
Assembly Resolution 1515 (XV), 1960, Concerted Action for Economic
Development of Economically Less Developed Countries; General Assembly
Resolution 1803 (XVII), 1962, Declaration on Permanent Sovereignty over
Natural Resources; General Assembly Resolution 1995 (XIX), 1994:
Establishment of the United Nations Conference on Trade and Development as
an Organ of the United Nations; General Assembly Resolution 2158 (XXI), 1966,
Permanent Sovereignty over Natural Resources of Developing Countries;
International Covenant on Civil and Political Rights, 1966; International
Covenant on Economic, Social and Cultural Rights, 1966; General Assembly
Resolution 2692 (XXV), 1970, Permanent Sovereignty over Natural Resources
of Developing Countries and Expansion of Domestic Sources of Accumulation for
Economic Development; General Assembly Resolution 3201(S-VI), 1974:
Declaration on the Establishment of the New International Economic Order;
General Assembly Resolution 3202 (S-VI), 1974: Programme of Action on the
Establishment of the New International Economic Order; General Assembly
Resolution 3281 (XXIX), 1974: Charter of Economic Rights and Duties of States;

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 Assertion of Sovereignty over Mineral Resources in Tanzania 109

regarding the Palestinian and other Arab territories under Israeli

occupation, and on indigenous people.31 It has been applied in
international arbitrations, national court decisions, government
decrees, and diplomatic protests. 32 Notably, the principle was
asserted by the International Court of Justice in its decisions on East
Timor33 and the Democratic Republic of Congo.34
In essence, the principle of PSNR enshrines the following four
bundles of rights, namely: the right to assert the ownership of
natural resources; the right to manage and control the exploitation
of natural resources; freedom of a country to exploit its natural
resources; and the right of a country to benefit from the exploitation
of its natural resources. It should further be noted that, assumption
of sovereignty over natural resources corresponds with the right to
assert the ownership of those resources which is the first right in the
set of rights in the principle. According to the basic principles of
property law, the foundation of all other rights in property is the
right to own that property. All other rights emanate from this right
as ancillary rights, and they include the right to use, transfer and
dispose of the property. Therefore, if the principle of PSNR grants a
number of rights with regard to natural resources, then the
existence of these rights, by the logic of the law, presupposes in the
first place the right of ownership of those resources.

2.3 Difficulties in Trying to Apply the Concept of Sovereignty

to Matters of Natural and Mineral Resources

The first difficulty in trying to apply the concept of sovereignty to

natural and mineral resources is that, the concept has traditionally

Vienna Convention on Succession of States in Respect of Treaties, 1978; African

Charter on Human and Peoples’ Rights, 1981.
31 General Assembly Resolution 1515 (XV), 1960, supra; Report of the Economic
and Social Council (ECOSOC), A/38/265, 1983, supra; General Assembly
Resolution, GA/EF/3167, supra; Report of the Commission on Human Rights,
Prevention of Discrimination and Protection of Indigenous Peoples’ Permanent
Sovereignty over Natural Resources, E/CN.4/Sub.2/2004/30, 2004.
32 Paragraph 7, Report of the ECOSOC, A/38/265, 1983, supra.
33 East Timor (Portugal v Australia), Judgment of 30 June 1995, ICJ Reports 1995.
34 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo
v Uganda), Judgment of 19 December 2005, ICJ Reports 2005.

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110 Kilangi

been associated with territory and inhabitants. Some critics

therefore see the extension of the concept to natural and mineral
resources as unwarranted and not conjuring any meaning.35 The
second problem in trying to apply the concept of sovereignty to
matters of natural and mineral resources is about the concept itself
which signifies many things, hence becoming confusing and
therefore not useful. On this observation, one author has this to say:

“…sovereignty is commonly noted as an implicit,

axiomatic characteristic of statehood. (sovereignty)
means many things, some essential, some insignificant,
some agreed, some controversial, some are not
warranted and should not be accepted…”36

There are also sentiments that, sovereignty is a concept that has

evolved a lot, eroding its absoluteness, hence not useful trying to
associate it with natural and mineral resources. One of the
observations about the erosion of the concept of sovereignty is as
follows:
“This notion (sovereignty) has evolved… we can no
longer regard sovereignty as an absolute and individual
right of every state as used to be done in the old
law……. Today…. States are bound by many rules which
have not been ordered by their will. The sovereignty of
states is now (changed and) supposed… to be exercised
in accordance with the new international law”. 37
[Emphasis added].

The critical point here is that in view of the above sentiments it is

argued, that, since the principle of PSNR is based on the concept of
sovereignty, and since the concept of sovereignty is not very

35 K. Hent, & S. Quentin, Sovereignty in Fragments: The Past, Present and Future of a
Contested Concept, Cambridge, Cambridge University Press, 2011, 188.
36 L. Henkin, International Law: Politics and Values, Netherlands, Martinus Nijhoff
Publishers, 1995, 8. For a similar view, see also: P. Raia, Sovereignties:
Contemporary Theory and Practice, Palgrave, Macmillan Co. Ltd., 2007, 35; and L.
Jeffrey, et al. International law: Norms, Actors, Process: A Problem-oriented
Approach, Aspen Law & Business, 2002, 60.
37 Individual opinion by Judge Alvarez in: Corfu Channel Case, United Kingdom V.
Albania, ICJ Reports, 1949, 39.

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 Assertion of Sovereignty over Mineral Resources in Tanzania 111

articulate and is now becoming not very absolute after being eroded
by many developments in international law, it is difficult to construe
PSNR as an articulate and very clear principle of international law,
and that PSNR cannot be construed in absolute terms because its
absoluteness has been eroded by other developments in
international law. That being the case, to use the concept in matters
of natural and mineral resources is to subject it to the above
controversies.
However, it is no doubt that the principle of PSNR has articulated
better the concept of sovereignty over natural resources compared
to developments in Roman law as well as English law including its
variants in America and Australia.

3. Union between Tanganyika and Zanzibar and the Birth

of the United Republic of Tanzania: Difficulties in
Articulating Sovereignty

3.1 Tanganyika: A History and the Creation of a Sovereign

Power

3.1.1 Pre-colonial Tanganyika

The territory which came to be known as German East Africa,

then Tanganyika, and later Tanzania Mainland, was not configured
in its current form during the pre-colonial times. Instead, in the
territory were scattered autonomous chiefdoms. The emerging of a
territory called German East Africa and later Tanganyika, which was
a result of the impact of the growth of capitalism, drew together
these once separate chiefdoms into the capitalist world in the advent
of colonialism, and forced them to constitute a territory and later a
country.38 The Sultan of Zanzibar had also laid claims to it, although
he was not able, in fact, to exercise effective control over it.39

38 J. Iliffe, A Modern History of Tanganyika, Cambridge University Press, 1979, 2.

39 For detailed discussion about claims of the Sultan of Zanzibar over the Mainland
See: M. Fitzpatrick, Tanzania, Lonely Planet, 2010, 20; GOVERNMENT OF
TANZANIA, Tanzania Foreign Policy and Government Guide, Volume 1,
International Business Publications, USA, 2007, 40-41.

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Otherwise, the territory which came to be known as German East

Africa and later Tanganyika was populated as part of the general
process of migration and settling in the East African region. This
process began almost 1000 years Before Christ (B.C), 40 and
continued up to as recent as 1800 years after Christ or Anno Domini
(A.D), which is the beginning of the 19th century. Therefore, the
process of migration and settlement in East Africa took about 2,800
years to complete.41 Prominent migration groups to, and settlements
in East Africa involved the Cushites, Nilotes, and the Bantu. The
patterns were generally North-southwardly, with bigger movements
being those recorded from North East and from West and Central
Africa southwards. However, there were also some few migrations
towards East Africa that were South-Northwardly like those of the
Nguni people who were running away from the Mfecane wars in
Southern Africa.42
In German East Africa and later Tanganyika, like in other places,
these settlements resulted into autonomous and sovereign
chiefdoms.

3.1.2 German Colonialism and the Creation of German

East Africa

The colonization of Tanganyika was started by the Germans, who

named the territory Deutsch OstAfrika (German East Africa).
Colonization efforts were started by Carl Peters who arrived in the
territory in 1884, and in the period from 1984 to 1985 he signed a
number of treaties with local chiefs in the mainland. He then went
back to Germany where he formed the German East Africa
Colonization Society, which was briefly afterwards renamed German
East African Company (Deutsch OstAfrika Gessellshaft) 43 , with
himself as its head. However, there were some disagreements with
the British regarding territory, which necessitated the signing of an
agreement in 1886, which defined the coverage of the German

40 B. Okello, A History of East Africa, Fountain Publishers, 2002, 2.

41 Ibid., 57.
42 Ibid., 2-10.
43 Ibid., 160. Note that the company’s name in German is ‘Deutsch-OstAfrikanische
Gessellschaft’, whose acronym is DOAG.

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 Assertion of Sovereignty over Mineral Resources in Tanzania 113

sphere of influence, extending from the South of River Umba44 up to

mountain Kilimanjaro in the North, and to the Eastern shores of
Lake Victoria to the West, and touching the Indian Ocean to the
East.45
In the aftermath of the above events, the German East African
Company tried to establish itself from 1886, but it was met with a
number of resistances like that of Abushiri (1888–1890). Further,
there were still more clashes with British interests in the region.
This necessitated the signing of another agreement in 1890.46 In that
agreement, Germany gained the whole coastal strip of Dar es Salaam,
hence gaining an extension to the hinterland.47 Due to failures in
controlling the territory, the German government finally took over
the management of the territory from the German East African
Company and this was on January 1st 1891. By 1914, the Germans
had established 22 administrative districts in Tanganyika.48 Note
that, this territory extended to the then semi-autonomous provinces
of Ruanda and Urundi, which constitute today’s Rwanda and
Burundi respectively. The extension to the two provinces was made
in 1899. In August 1914, the First World War broke out in Europe.
This war was going to have an impact on German rule in East Africa.
The war made Germany and Britain direct adversaries and

44 Geographically, River Umba is located in north-eastern Tanzania in Tanga

Region. It rises in Shagayu forest in the West Usambara Mountains at 2,000
metres altitude and flows on the north side of the mountain range to the east. At
Lelwa it empties the Mbalamu River which comes from the extreme north of the
Usambara Mountains, and the Mgulumi River. Just before it flows into the Indian
Ocean, it crosses the border to Kenya. The mouth itself marks the most eastern
point on the border between Tanzania and Kenya.
45 B. Okello, Op. cit., 160.
46 Also known as the ‘Helgoland-Zanzibar Treaty’, or the ‘Anglo-German
Agreement of 1890’.
47 Note that, according to prevailing doctrines of international law regarding
territory at that time, the hinterland is the land or district behind a coast or the
shoreline of a river. By the ‘doctrine of the hinterland’, the state that owns the
coast has legitimate claims also to the land or district behind a coast or the
shoreline of a river. For more insights about the doctrine of the hinterland, see:
ENCYCLOPEDIA BRITANNICA (1911), “The Doctrine of the Hinterland”, 649; J.
Herbst, States and Power in Africa: Comparative Lessons in Authority and Control,
Princeton University Press, 2000, 73.
48 B. Okello, Op. cit., 180.

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belligerents. Germany lost the war in Europe and was thus forced to
surrender all her overseas territories to the League of Nations,
including the German East Africa territory. Thus German rule ended
officially in Tanganyika in 1919.

3.1.3 British Colonialism and the Transformation of

German East Africa into Tanganyika

When Germany lost the war, the German East Africa territory was
given to the British pursuant to the Treaty of Versailles, under the
terms of the Mandate System, and the British renamed it
‘Tanganyika’. So far, this name Tanganyika was given by the British
to the territory which now constitutes Tanzania Mainland. The
Mandate System under which Tanganyika would be governed, had
its basis nder Article 22 of ‘the Covenant of the League of Nations’,
which was signed on 28th June 1919 and became effective on 10th
January 1920. Thus, the ‘British Mandate for East Africa’ became the
constitutive law on the basis of which Tanganyika was going to be
administered. We should take note here that, the same mandate
document, namely the British Mandate for East Africa, removed the
semi-autonomous provinces of Ruanda and Urundi from what used
to be German East Africa and placed them under Belgian rule, and
the two assumed the names ‘Rwanda’ and ‘Burundi’ respectively.
Thus, from the time the territory assumed the name Tanganyika, it
excluded Rwanda and Burundi.
Coming back to the name Tanganyika the origin of it, however, is
not very clear although some writers attribute it to the name of Lake
Tanganyika, which is found in the western part of the country. On
this, Room Adrian49 notes:

“Tanganyika took its name from the lake here,

which is Africa’s second largest, now divided between
Tanzania and the Democratic Republic of Congo. Its
own name [the lake’s name] was explained by the
English explorer Sir Richard Burton, who ‘discovered it’
[sic] in 1858, as representing local words ‘ku

49 A. Room, Placenames of the World: Origins and Meanings of Names for 6,600
Countries, Cities, Territories, Natural Features, and Historic Sites, McFarland
Publishers, 2006, 368.

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 Assertion of Sovereignty over Mineral Resources in Tanzania 115

tanganyika’, which means ‘to join or to meet’, in the

sense that it was a place where waters or clans or tribes
met or gathered”.50 [Emphasis added]

But, the undisputed application of the name ‘Tanganyika’ appears

to have commenced in 1920 when the British took over from the
Germans, and renamed the territory Tanganyika. But the choice of
the name Tanganyika, the name of the lake as suggested by Room, is
not officially explained in any available literature. However, a
curious perusal of documents show that it was actually the
Tanganyika Order in Council of 1920 which specifically stated that,
what was formerly called ‘German East Africa’, would subsequently
be called ‘Tanganyika’, as evidenced in the following excerpt:

“…whereas it has been agreed between the Principal

Allied and Associated Powers that the territories of
Africa situate within the limits of this Order (being
part of the territories formerly known as German
East Africa) shall be administered by His Majesty the
King, subject to and in accordance with the provisions
of the said Treaty.….. And whereas accordingly by
treaty, capitulation, grant, usage, sufferance and other
lawful means, His Majesty has power and jurisdiction
within the said territories (hereinafter called the
Tanganyika Territory)…”51 [Emphasis added]

Thus, it can be argued that, it was the Tanganyika Order in

Council of 1920 that renamed German East Africa as Tanganyika. It
should further be noted that, the Tanganyika Order in Council of
1920 itself was enacted pursuant to the authority granted by the
Foreign Jurisdiction Act52 of England of 1890.53 That authority was
granted in the following words:

“Where a foreign country is not subject to any

government, from whom Her Majesty the Queen might

50 Ibid., 368.
51 See the Preamble, Tanganyika Order in Council, 1920.
52 See the preamble to the Tanganyika Order in Council, 1920.
53 Enacted on 4th August 1890, Chapter 37 of the Laws of England.

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obtain jurisdiction in the manner recited by this Act,

Her Majesty shall by virtue of this Act have jurisdiction
over Her Majesty's subjects for the time being resident
in or resorting to that country, and that jurisdiction
shall be jurisdiction of Her Majesty in a foreign country
within the meaning of the other provisions of this
Act”54

The Foreign Jurisdiction of Act 1890 actually commences by

indicating that the said authority given to Her Majesty shall be
granted by virtue of treaty, capitulation, grant, usage, sufferance, and
other lawful means.55 In this respect, the Tanganyika Order in
Council of 1920 makes reference to the Treaty of Peace between the
Allied and Associated Powers and Germany, signed at Versailles on
the Twenty-eighth day of June, 1919 (also called the Treaty of
Versailles) as granting authority by treaty, following Germany’s
renouncement in favour of the ‘Principal Allied and Associated
Powers’ of all her rights and titles over her Overseas possessions,
which include German East Africa.56 Therefore, it can be inferred
from the import of the provisions of the Foreign Jurisdiction Act of
England of 1890 that, one of the exercises of the powers granted to
Her Majesty therein, was to assume jurisdiction over foreign
territories not subject to any government, and this jurisdiction
included power to assign names to such territories if they did not
have a name as such, and for Tanganyika, this jurisdiction was
exercised through the Tanganyika Order in Council of 22nd July,
1920, under which the name Tanganyika was assigned accordingly.
From 1939 to 1945, the Second World War occurred in Europe.
The occurrence of this war had another major significance for
Tanganyika in terms of the administrative arrangements for the
territory, because it led to the disbanding of the League of Nations in
1945 and creation of the United Nations. This change caused also a
change in the system of administration of colonies, namely from the
Mandates System to the Trusteeship System, under the Trusteeship
Council of the United Nations. The trusteeship system was created

54 Section 2, Foreign Jurisdiction Act, 1890 [England].

55 See the Preamble to the Foreign Jurisdiction Act, 1890 [England].
56 See the Preamble to the Tanganyika Order in Council, 1920.

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 Assertion of Sovereignty over Mineral Resources in Tanzania 117

under the Charter of the United Nations which established also the
United Nations itself, with specific provisions devoted to the
establishment of the International Trusteeship System. Thus,
another document had to be prepared and this was the Tanganyika
Trusteeship Agreement of 1947, which became the constitutional
basis upon which Tanganyika was going to be administered from
that time to independence, thereby replacing the British Mandate for
East Africa.
In the political movements to fight for independence that
subsequently emerged in Tanganyika, several political parties were
formed including TAA, which later transformed itself into TANU led
by Julius Kambarage Nyerere. Mr. Nyerere galvanized Tanganyikans
and mobilized the masses to demand for independence. By 1961
Tanganyika attained full internal self-government and the late Julius.
K. Nyerere became the Prime Minister who led the Council of
Ministers, which was collectively accountable to the National
Assembly. The Constitution, 57 which conferred full internal-self
government, came into force on May 1st, 1961 and made provision
for Mr. Nyerere as Prime Minister to form a cabinet of Ministers.
Tanganyika had made amazingly quick progress towards
independence. Within a few weeks after self-government the
National Assembly passed a resolution asking the British to grant
full independence to Tanganyika. 58 On December 9th, 1961,
Tanganyika gained full independence as a sovereign nation.
Tanganyika’s first constitution, the Independence Constitution,
marked the end of British rule. The Constitution was largely
modeled on the Westminster style of the Constitutional system,
which maintains the Queen as the Head of State and the Prime
Minister as Head of Government. Therefore, according to this
constitution, the Queen of England continued to be the Head of State,

57 This is the ‘Independence Constitution’ and which had been enacted in the
British Parliament in the same way the British did for other colonies that
approached independence and given to Tanganyika. It was given in the form of
an order in Council, in this case called “the Tanganyika (Constitution) Order in
Council, 1961’, where the ‘Constitution of Tanganyika’ was attached as a Second
Schedule to the Order in Council.
58 S.W. Gideon, A.W. Derek, B. Evans, East Africa through a Thousand Years: A
History of the Years A.D. 1000 to the Present Day, East Africa Publishing, 1972,
18.

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while the Prime Minister of Tanganyika, Mr. Nyerere was the Head
of Government.

3.2 Zanzibar: A History and the Creation of a Sovereign

Power

Zanzibar, which is located on the East African coast, is 32 nautical

miles from Dar-es-Salaam, and is comprised of mainly two
islands i.e. Unguja and Pemba and other small islands. The Gulf
Persians and people from the Far East are documented in
history to have visited Zanzibar many centuries ago, hence
changing it into a centre of long distance sea commerce.59 The
name Zanzibar is said to have evolved from the word
‘Zangibar’ an Arabic word which means ‘the land of black
people’. ‘Zangibar’ itself is said to have been part of a great
territory that extended along the coast of East Africa called ‘the
Country of Zinj or Zenj’.60 The Indigenous people of Zanzibar
are Watumbatu, Wahadimu and Wapemba. Portugal is the first
colonial power to invade Zanzibar and try to colonize it in
1503 pioneered by the great Portuguese seafarer Vasco Da
Gama.
On arrival to Zanzibar, the Portuguese are said to have captured
local dhows, killed the Mwinyi Mkuu (overlord chief) of that time,
forced the Islanders to become Portuguese subjects, and reducing
Zanzibar into a Portuguese territory. 61 They built a Fort at
Chakechake Pemba in 1598 to signify their presence. Subsequently,
however, one of the successors to the Mwinyi Mkuu of Zanzibar
made a request to the Sultan of Oman to come to his assistance. In
1652 the Sultan of Oman mobilized his troops and raided the
Portuguese in Zanzibar by attacking the settlements in Unguja and

59 A. Sheriff, Historical Zanzibar: Romance of the Ages: Zanzibar under Colonial Rule,
1st Ed., HSP Publications, London, 1995, 19.
60 C.H. Stigand, The Land of Zinj: Being an Account of British East Africa, Its Ancient
History and Present Inhabitants, Psychology Press (First edition published in
1913), 1966, 7.
61 For details see: A. Skinner, Tanzania and Zanzibar, New Holland Publishers,
2005, 322-324; W.H. Ingrams, Zanzibar: Its History and Its People, Psychology
Press, 1967, 115-119.

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burning the garrison in Pemba, forcing them to retreat to as far as

Northern Mozambique. By 1698 the Oman Arabs had gained firm
control over the Isles by forcing Zanzibar to become a protectorate
of Oman.62
Having gained firm control of Zanzibar the Oman Arabs started to
squeeze the Mwinyi Mkuu out and exercising more firm rule over
Zanzibar. In the beginning, the Sultans ruled from Muscat by
appointing Governors for Zanzibar. But, from 1820 Sultan Sayyid
Said bin Sultan started building the first stone building of what came
to be called the ‘Stone Town in present day Unguja. Twelve years
later, in 1832, he moved his Capital from Muscat (Oman) to
Zanzibar.63 Upon settling in Zanzibar, he made territorial claims, in
theory, extending from Kismayu in Southern Somalia to the North, to
Sofala in present Mozambique in the South, and from the Indian
Ocean in the East to Congo in the West.64 It appears that he followed
the territorial lines of what was claimed to be the Zinj or Zenj
empire.
When he settled in Zanzibar, Sultan Sayyid Said bin Sultan is said
to have noted a difference between the people of Northern and
Southern Unguja. The North was inhabited by the Watumbatu or the
People of Tumbatu, a people of African descent, and the South by the
Hadimu, a people who claimed Shiraz descent.65 Many Arabs settled
in Pemba. He also made skillful arrangements with the reining
Mwinyi Mkuu who then became a ceremonial leader in charge of
local affairs while the Sultan remained in charge of trade and
international affairs.66
In 1884 there was partition of Africa in the Berlin Conference that
deprived the Sultan of much of his former dominion and was left
only with the Zanzibar islands and the ten-mile coastal strip in
Kenya. But, in the subsequent agreement between the Germans and

62 A. Skinner, Tanzania and Zanzibar, New Holland Publishers, 2005, 322.

63 W.H. Ingrams, Zanzibar: Its History and Its People, Psychology Press, 1967, 119.
64 Refer to the discussion about the claims of Sultan of Zanzibar in this treatise
above.
65 A. Skinner, Tanzania and Zanzibar, New Holland Publishers, 2005, 323.
66 Ibid.

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British of 1890, as we have noted,67 Germany gained the whole

coastal strip of Dar es Salaam, hence further limiting the territory of
the Sultan to Zanzibar in terms of Unguja and Pemba. In the same
year (1890) Zanzibar was forced to become a British Protectorate
because it was being threatened by the Germans.68
Active political activities in the fight for independence in Zanzibar
started in the 1920s. Racially based associations such as the African
Association, the Shiraz Association, and the Arab Association
emerged. From the 1950s these associations were succeeded by
Political Parties such as the Zanzibar Nationalist Party (ZNP), the
Afro-Shiraz party (ASP) which was a merger of African Association
whose supporters were mainly Africans of Mainland origin
(Tanganyika) and the Shiraz Association comprised mainly of the
indigenous Zanzibari African population. In 1959, ASP split and the
splinter group formed the Zanzibar and Pemba People’s Party
(ZPPP).
On its part the ZNP also split and the splinter group formed the
Umma party (UP). The ZNP was mainly supported by the Arabs and
Africans of Zanzibari origin. The first election was held in 1957 in
which the suffrage was very restricted. The second election was
held in 1961 where three political parties took part namely; ASP,
ZNP and ZPPPP. ASP got 10 seats, ZNP got 9 and 3 went to ZPPP. In
ZPPP there was internal strife: some wanting to affiliate with ZNP
while others wanted to support other parties. Another election was
held in July 1963. ZNP and ZPPP formed a coalition and therefore got
a total of 18 seats, while ASP got 13 seats. So ZNP and ZPPP formed
the internal self-government in July 1963.69
The second Lancaster House conference was held in September
1963 to deal with the Independence Constitution. The outcome was
that the Sultan was to continue holding his position as the
Constitutional Head of the State, and be able to nominate his
successor, and must always follow his Minister’s advice. It was
further agreed that the National Assembly could carry out

67 Also known as the ‘Helgoland-Zanzibar Treaty’, or the ‘Anglo-German

Agreement of 1890’.
68 S. Abdul, and F. Ed, Zanzibar under Colonial Rule, James Curey Publishers, 1991,
19.
69 Ibid.

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constitutional amendments by simple majority, except for the

provision dealing with fundamental rights and rights of minority.
The Conference further agreed that December 10th, 1963 be the date
of Independence of Zanzibar.
Thus, Zanzibar achieved its Independence on December 10th,
1963 as a sovereign country and that marked the end of British Rule
in Zanzibar. Like in the case of Tanganyika, the Independence
Constitution was also modeled on the Westminster Model with the
Sultan as the ceremonial Head of State and the Prime Minister as the
Head of Government. The Constitution vested the legislative power
in the Sultan and a National Assembly of elected members. However,
the new Independent government did not live long. Hardly one
month after Independence had a revolution taken place in Zanzibar
and this was on 12th January 1964. The Sultan as well as the coalition
of ZNP and ZPPP was overthrown.

3.3 Formation of the Union between Tanganyika and

Zanzibar and the Birth of the United Republic of
Tanzania as a New Sovereign

3.3.1 Overview

Tanganyika, which got its independence in 1961, united with

Zanzibar after the revolution of January 1964, and this union formed
the United Republic of Tanzania, or simply Tanzania. The name
Tanzania is a formulation that was made by combining the first
words from the names of the two countries, namely ‘Tan’ from
Tanganyika, and ‘Zan’ from Zanzibar. Geographically and politically,
Tanzania includes the Mainland and Zanzibar. That means the
territory that was originally called Tanganyika, it is now, strictly
speaking, Tanzania Mainland, and the Zanzibar part continues to be
called Zanzibar.70

70 However, practical usage has it that the name ‘Tanzania’, despite being reflective
of the Union between Tanganyika and Zanzibar, is sometimes used exclusively
to denote the territory that was once called Tanganyika. Thus, the expression
‘colonial Tanzania’ for example, would sometimes denote Tanganyika only (and
its predecessor the German East Africa), and not both Tanganyika and Zanzibar.

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3.3.2 Formation of the Union: The Articles of the Union

The Union was established through conclusion of Articles of the

Union,71 on 22nd April 1964. Article I stipulates that: “...The Republic
of Tanganyika and the Peoples' Republic of Zanzibar shall be united
in one Sovereign Republic…”. This provision shows that Zanzibar
and Tanganyika, which were all sovereign and independent states as
at the time of signing the Articles, agreed to surrender their
sovereignties to the new entity, namely the United Republic.
However, although the two states decided to surrender their
sovereignties, the constitution of Tanganyika was supposed to apply
as the constitution for the Union.72
Further, Zanzibar would retain a separate legislature and
executive branch which would have exclusive jurisdiction on non-
union matters 73 , while Tanganyika would dissolve both her
legislature and the executive as the same would be provided for at
the union level. Further, Zanzibar would also be represented in the
Union Parliament and executive,74 despite having its own Parliament
and executive. The same Union Parliament and Executive would also
cater for matters of Tanganyika which are non-union matters.75 That
means therefore, the Union executive and legislature would cater for
all union matters both in Tanganyika and Zanzibar, as well as all
non-union matters for Tanganyika, while the Zanzibar executive and
legislature would cater for all non-union matters for Zanzibar.
The Articles of the Union also stipulate the things which fall
under the authority of the Union, which is the authority of the Union
legislature and executive. These are popularly referred to as ‘union
matters’ and the following are the 11 items in the original list: 1) the
Constitution and Government of the United Republic; 2) external
affairs; 3) defence; 4) police; 5) emergency powers; 6) citizenship; 7)
immigration; 8) external trade and borrowing; 9) the public service
of the United Republic; 10) income tax, corporate tax; customs and

71 Articles of Union between the Republic of Tanganyika and the Peoples’ Republic
of Zanzibar, 1964.
72 Article III, Articles of the Union.
73 Article III(a), Articles of the Union.
74 Article III(c), & Article IV, Ibid.
75 Article IV, Ibid.

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excise; and, 11) harbours, civil aviation, posts and telegraphs.76

While this was the situation, the then existing laws of Tanganyika
and Zanzibar would continue being applicable in each area
respectively.77 However, in the various subsequent amendments, the
list of Union Matters was increased by adding the following matters:
1) currency, coinage and legal tender (including paper money),
banks (including saving banks) and banking; foreign exchange and
control; 2) industrial licensing and statistics; 3) higher education; 4)
such matters, other than those listed in the preceding paragraphs as
specified in the Annex X to the Treaty of East African Cooperation; 5)
mineral oil resources, including petroleum, its related hydrocarbons
and natural gas; 6) the National Examinations Council of Tanzania;
7) air transport; 8) research; 9) the Court of Appeal of United
Republic; 10) the Human Rights Commission; and 11) political
parties.

3.3.3 The Raison D’être behind the Idea to Form the

Union

Some researchers are of the view that the political objectives of

the top leaders in forming the union were divergent and not even
common right from the word go.78 Mr. Nyerere, whose comments
came before Independence, stated:

“If I could tow that Island (Zanzibar) out in the

middle of the Indian Ocean, I‘d do it….it is very
vulnerable to outside influence. I fear it will be a big
headache to me”.79

By saying so, he was equating Zanzibar with Cuba, which in the

early 1960s was at the centre of the cold war as the Soviets courted
it to their side wanting to use the island as a platform for attacking
America one of the occasions being the well remembered ‘Nuclear

76 Ibid.
77 Article V, Ibid.
78 B.P. SILVASTAVA, The Constitution of United Republic of Tanzania 1977: Some
Salient Features, Some Riddles, Dar es salaam University Press, 1983, 11.
79 As quoted in “The Standard” (Newspaper), Dar es Salaam, 19th August 1964.

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Missiles Crisis’. In 1970 Mwalimu stated in the National Assembly,

that:

“… the Act of the Union between Tanganyika and

Zanzibar in 1964 was an emergency act; we hastened to
unite because we recognized that only speedy initiative
could achieve unity.”80

Mr. Oscar Kambona, the then Nyerere’s Minister for Foreign

Affairs, added strength to the arguments when he said that:

“Our first concern was the growing communist

presence, and second, the danger of the Cold War …the
problem was how to isolate Zanzibar from Eastern
countries, yet not to be used by the West for its
purpose”.81

It is therefore argued that the super powers during the Cold War
era could have tried to exert their influence on Zanzibar, causing
many problems to the mainland, namely Tanganyika.
On his side, Mr. Karume stated, in August 1964, thus:

“Tanganyika and Zanzibar union has brought

strength to the Island and protected us against external
enemies who are trying to sabotage the fruits of the
Revolution”82

Therefore, it would appear that while from Tanganyika’s

perspective the Union was meant to avert any possibilities of
Zanzibar being drawn into the cold war politics of the time by being
a satellite of either communist or socialist block, from Zanzibar’s
perspective the Union was necessary as deterrence for those who
wanted to invade Zanzibar and recapture it. However, it is also

80 Silvastava, Loc. Cit.

81 P.J Kabudi, “The United Republic of Tanzania after a Quarter of a Century: Legal
Appraisal of the State of the Union of Tanganyika and Zanzibar”, LLM
Dissertation, 1993, 314.
82 Silvastava, Loc. Cit.

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widely and probably correctly informed that the Union between

Tanganyika and Zanzibar was inspired by the historical ties that
existed between Tanzania Mainland and Tanzania Zanzibar before
colonialism, and also considering the fact that the whole of Mainland
Tanzania was also claimed to have been under the dominion of the
Sultan of Zanzibar.83

3.3.4 Controversies Surrounding the Structure of the

Union

Overview
There are several controversies surrounding the Union between
Tanganyika and Zanzibar. Three of them are relevant for this
discourse, as they tread around the question of sovereignty. These
are: the status of the Articles of the Union; additional matters to the
Articles of the Union; and the predicament to the sovereignty of
Tanganyika and Zanzibar.
Status of the Articles of the Union
There are arguments by scholars that, the Articles of the Union
are supposed to be supreme even to the constitution of the United
Republic of Tanzania. Therefore, they cannot be, and were not
supposed to have been amended in a normal constitutional
amendment process. Thus, the Articles of the Union should have
been treated as grundnorm, by virtue of which they should have
been above the constitution or any other law of the land because this
is the basic document creating, through a treaty, the United Republic
of Tanzania and granting it with the required sovereignty which is
defined within the same context of the Articles. But it appears that,
the Constitution (and other laws) of the United Republic are not
totally guided by the Articles nor do they reflect the spirit of the

83 For more discussion about the reasons behind the formation of the Union
between Tanganyika and Zanzibar see: G. Mwakikagile, The Union of Tanganyika
and Zanzibar: Product of the Cold War?, Intercontinental Books, 2008; G.
Mwakikagile, Why Tanganyika United with Zanzibar to form Tanzania?,
Intercontinental Books, 2014.

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articles.84 Hence, the concept of sovereignty as originally construed

in the Articles of the Union might have been eroded in the process.
Additional Matters to the Articles of the Union
Another contentious issue about the structure of the Union is the
question of legality (or illegality) of expansion of Union matters. As
stated already above, the original list contained 11 matters. But
more matters were added over and above the 11. This is considered
as tempering with the Articles of the Union, while the Union
Parliament would not have power to ‘temper’ with the Articles of the
Union because this action is likely to affect the concept of
sovereignty as defined within the context of the original Articles.
In support of the above contention, reference is often made to the
case of McCormick v. The Lord Advocate85 where it was similarly
argued with approval that the Parliament of the United Kingdom
could not temper with the provisions of the Treaty of Union between
England and Scotland since that treaty is supreme over all other
laws and bodies.86

84 For more discussion about this contention see: I. Shivji, Tanzania: The Legal
Foundations of the Union, African Books Collective, 1990, 1-12.
85 1953 SC 396, 1953 SLT 255, [1953] Scottish Court of Session, CSIH_2.
86 In this case, John MacCormick (the Rector of the University of Glasgow) and Ian
Hamilton (then part of the Glasgow University Scottish Nationalist Association)
contested the right of Queen Elizabeth II to style herself 'Elizabeth II' within
Scotland. They claimed it was a breach of the Act of Union 1707 between
England and Scotland, since Queen Elizabeth I had been Queen of England but
not of Scotland. The action was brought against The Crown, which was
represented by the Lord Advocate, who is the most senior law officer in
Scotland. The petitioners submitted that, article 1 of the Treaty of Union being a
fundamental condition of the union between Scotland and England, it was ultra
vires of the Parliament of the United Kingdom to amend that article or to pass
legislation in contradiction of its provisions. That Parliament did not have
unlimited sovereignty, since it was created by the Treaty of Union, which
contained articles limiting its powers in certain respects. Further, as the
Parliament of Scotland was not a sovereign body, since its laws could fall in
desuetude, it could not convey by the Treaty of Union to the Parliament of the
United Kingdom a sovereignty which it never possessed. Therefore, if the Royal
Titles Act, 1953, purported to authorise Her Majesty to adopt the title "Elizabeth
the Second," that statute was ultra vires of Parliament, since by article 1 of the
Treaty of Union the United Kingdom came into being on 1st May 1707, and no
ruling sovereign of that kingdom had borne the name Elizabeth until the
accession of Her Majesty. Every citizen of Scotland had an interest to ensure that

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While the discussion about additional Union matters might seem

insignificant in the realm of the foregoing discourses, it is important
in one sense that, when the list of Union matters is enlarged, the
sovereignty of Zanzibar is encroached and diminished, because the
act reduces the number of things that are supposed to be under the
exclusive authority of Zanzibar. This sentiment is compounded by
accusations that, since Tanganyika (Tanzania Mainland) appears to
have clothed itself with the Union jacket, and through that jacket it
has been (illegally) spearheading the process of adding matters to
itself, matters which were originally within the province of exclusive
jurisdiction of Zanzibar, thus Tanganyika is bent on systematically
eroding on the sovereignty of Zanzibar.
The Predicament to the Sovereignties of Tanganyika and Zanzibar
Despite the clear language of the Articles of the Union at Article I
that, “The Republic of Tanganyika and the Peoples' Republic of
Zanzibar shall be united in one Sovereign Republic” questions have
been lingering as to whether Zanzibar lost its sovereignty
completely. In the case of R. v Machano Khamis Ali and 18 others
(2000) the Court of Appeal of Tanzania ruled that neither Zanzibar
nor Tanganyika is a state; and that from 26th April 1964 both parties
of the Union surrendered their sovereignties to the Union. This
position would appear to be correct in terms of Union matters. But
what about those matters for which Zanzibar has exclusive
jurisdiction, meaning those non-union matters for which the Union
government has no jurisdiction over? Is Zanzibar not supposed to be
enjoying sovereignty over those matters? Therefore, one can argue
that while Tanganyika, by virtue of the Articles of Association lost all
of its sovereignty, Zanzibar retained some level of sovereignty in
respect of non-union matters. But this fact leads to a phenomenon
called ‘divided’ or ‘shared’ sovereignty.87

the fundamental conditions of the Treaty of Union were observed, and, as an

application to the Court was the only method whereby this could be achieved,
the petition was competent. The Court had power to prevent the publication of a
proclamation which was illegal as in violation of the Treaty of Union.
87 For more discussion on this phenomenon please see: T. Lynch, The Theory Of A
Divided Sovereignty, St. John’s College, 1931; M. Moran, Sovereignty Divided:
Essays On The International Dimensions Of The Cyprus Problem, CYREP, 1998; F.
Capogrosso, Shared sovereignty and Denationalization of Statehood in the

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4. Assertion of Sovereignty over Mineral Resources before

the Formation of the Union

4.1 Assertion of Sovereignty over Mineral Resources in Pre-

colonial Times in Tanzania Mainland

In the stage of communalism, mineral resources were possessed

communally and controlled by families or clans. There was no
evidence of ownership being vested exclusively in the sovereign.
Even with the emergence of feudalism, there was no evidence of
existence of a centralized system of ownership or control over
resources, but rather through smaller groups of individuals usually
associated or connected with royal cycles, or privileged families and
individuals were involved in mining. Not even chiefs claimed
ownership over mineral resources, except some controls in the
exploitation. So it can be asserted that, in pre-colonial societies,
mineral resources were possessed by the whole community or
society as a whole and not owned and controlled by any sovereign.

4.2 Assertion of Sovereignty over Mineral Resources in

Colonial Times in Tanzania Mainland

Mining in Tanzania mainly took place in the Mainland side. There

was no any mining in Zanzibar. As we have taken note already,
during colonialism Tanzania Mainland assumed the name German
East Africa in German colonialism and the Name Tanganyika in
British colonialism.
During German colonialism, the Germans placed all the land in
German East Africa under the Empire, which included the mineral
resources beneath it. This was tantamount to asserting sovereignty
over all the mineral resources of Tanzania. As for the British, right at
the beginning of their rule in Tanganyika, and having asserted
sovereignty over the Territory in Tanganyika through the office of
the Governor, they also assumed sovereignty over the mineral
resources of the Territory. This concept was not incorporated in the

European Union, GRIN Verlag 2009; C. Pavel, Divided Sovereignty: International

Institutions and the Limits of State Authority, Oxford University Press, 2014.

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Mining Ordinance of 1920, but it was incorporated in the

Tanganyika Order in Council of 1920, in the following wording:

“…all mines and minerals being in, under or on any

lands in the occupation of any native tribe, or any
members thereof, of any person not possessed of the
right to work such mines and minerals, shall vest in the
Governor, or such trustee or trustees, in like manner as
the mines and minerals in, under or on any public
lands. The Governor, or such other trustee or trustees,
may make grants or leases of any such public lands or
minerals as aforesaid, or may permit such lands to be
temporarily occupied, on such terms and conditions as
he or they may think fit, subject to the provisions of any
Ordinance”.88

This provision as it can be seen, vested in the Governor, all mines

and minerals. As a result of this vesting, the Governor would make
grants of mineral rights, leases or permits. However, the provision
had some apparent shortcomings. It did not stipulate the territorial
confines of this sovereignty over mineral resources. Secondly, it did
not show the connection between the Governor and the British
Crown. It is not surprising therefore to learn that in the Mining
Ordinance of 1929, the sovereign control aspect was revisited, and
the British were more explicit in asserting sovereign rights over
mineral resources in the following manner:

The entire property in, and control of all the

minerals in, under, or upon any lands in the Territory
are and shall be vested in the Governor, in trust for His
Majesty as Sovereign of the Mandatory Power, save as
in so far as such right may in any case have been
limited by any express grant made before the
commencement of this Ordinance.89

This provision is noted for being explicit in asserting that, in fact,

the King or Queen of England was the sovereign power in respect of

88 Article 8(3), Tanganyika Order in Council, 1920.

89 Section 5, Mining Ordinance, 1929.

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the territory of Tanganyika, with the Governor as the representative,

and that one of the main powers associated with that sovereignty
was the control of mineral resources of the territory. This position
continued until independence in 1961.

5. Assertion of Sovereignty over Mineral Resources After

the Formation of the Union

5.1 Concept of Statehood and Sovereignty in the Post-

independence Period

5.1.1 Overview

It is important to begin this part by showing that it is generally

accepted that, the process of building the nation in the immediate
aftermath of independence in Tanganyika (Tanzania Mainland), and
later on after establishment of the Union between Tanganyika and
Zanzibar, was greatly influenced by personal ideas, convictions, and
vision of the first president of Tanzania, namely Mwalimu Julius
Kambarage Nyerere who also acquired the recognition of ‘Father of
the Nation’. It is therefore important to examine, albeit briefly, the
philosophical influences behind Nyerere’s ideas, because they
influenced the direction in building the notion of statehood, which in
turn impacted the concept of sovereignty, hence sovereignty over
mineral resources.
The important things to examine include: the utilitarian
background which influenced his nation-building in terms of
economic, social and governance policies including those on the
exploitation of natural resources and the doctrine on state
succession, namely the Nyerere doctrine of state succession because
of its compatibility with the principle of permanent sovereignty over
natural resources.

5.1.2 Influence of the Utilitarian Philosophy

It is noted that, while schooling in England, Nyerere became a

keen student of John Stuart Mill, who was also a student of Jeremy
Bentham. Bentham is one of the proponents of the ‘utilitarian school
of thought’. Nyerere is also said to have associated himself with the
‘Fabian Society’ in England, which is also a proponent of the

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utilitarian school.90 Utilitarianism is a theory which claims that, if we

want to perform proper moral deeds towards people, we should
wish to make them happy. Thus, utilitarianism generally finds moral
worth in those actions which maximize overall happiness of people,
and that this happiness should be of the greatest number of people.
It was Jeremy Bentham who put forward the axiom that, it is the
greatest happiness of the greatest number that is the measure of
right and wrong. 91 Therefore, according to utilitarianism, any
struggle to attain the happiness of the greatest number of people in a
country is part of a moral obligation, not just a political one.
Coming to John Stuart Mill, key tenets of his utilitarianism
thinking are two: firstly, there is a difference between what
economics measures and what human beings really value. Thus, Mill
shows that conventional economic analysis cannot prove that
socialism is unworkable. On this basis therefore, he suggested as his
own ideal an economy of cooperatives and enterprises owned by
workers. Secondly, he remained greatly convinced that governments
ought to aim at maximizing the welfare of all the people, and that
welfare of the people consists of their happiness. On this he insisted
that happiness was to be assessed not merely by quantity, but by
quality.92
In essence, utilitarian thought has the following key tenet
regarding the individual vis-à-vis the society, that: an equation must
be drawn between individual morality and state morality. In this
tenet, an individual good can be sacrificed if it will result into the
good of everybody, or the greater number of people. As a result, the
authority (the government) is considered and asserted as the
arbitrator for what is considered the greatest good of the country.93
The above influences were the foundations of Nyerere’s
subsequent philosophy of African Socialism, which he sought to
distinguish from communism, and obviously from capitalism. For
communism, he differed with its philosophy that it should always
emanate from class struggles, and for capitalism he differed with its

90 P. Bjerk, Julius Nyerere and the Establishment of Sovereignty in Tanganyika, the

University of Wisconsin, Madison, 2008, 66.
91 G. Scarre, Utilitarianism, Routledge, 1996, 82 – 86.
92 Scarre, Loc. cit.
93 P. Bjerk, Op.cit., 67.

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mentality that happiness is in material wealth, and he contended

that material wealth does not necessarily result into wealth of
individuals, hence does result into happiness of greatest number of
people.
In fact, it was his conviction, like other socialists at that time, that
capitalism always work for the interest of few people, or the capital
owners, leaving aside the majority. This utilitarian thinking, it is
observed, influenced Nyerere’s thinking on nation-building
generally, and on the concept of sovereignty in particular. Nyerere
understood sovereignty as emanating from the individual through
contractual relations, whether voluntary or coerced. In this contract,
the individual contracts with other people, in which he surrenders
some sovereignty for the sake of a larger entity. This is a social
contract, but between peoples themselves, not between rulers and
subjects.94 Further, he viewed economic exploitation as a threat to
this sovereignty.95
It is also observed that, Nyerere was also influenced by the
utilitarian concept of the panopticon in interpreting the role of
government within the utilitarian setting, where the government is
the arbitrator for bringing good to the greatest number of people.
The panopticon is a concept in architecture and engineering in which
one builds a structure where a person will able to observe all the
rooms and the inmates. This must be roundish or rectangular, with
the viewer positioned at some strategic angle. Utilitarian thinking
sought to extrapolate this concept of panopticon into politics and
governance.96 In governance, the panopticon would entail a system
of governance where the government controls everything including
trade and economic activities, and would leave little room for
private initiatives. This was later manifested itself in the form of the
Arusha Declaration and building of state-controlled economy.

5.1.3 Nyerere Doctrine of State Succession

The Nyerere doctrine of state succession could also be cited as

another philosophical disposition that underpinned nation-building

94 Ibid., 55.
95 Ibid., 57.
96 Ibid., 67.

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and the understanding of sovereignty in the immediate aftermath of

independence. In international law, various theories have been
developed with regard to what should happen when there is change
in the nature of sovereignty that brings about succession, such as
when a state gains independence. These theories could be divided
into two main groups: namely the traditional theories of continuing
of rights and obligations following state succession, and the
traditional theories of non-continuity of obligations following state
succession. In the traditional theories of continuing of rights and
obligations following state succession, there are three doctrines,
namely: the universal succession theory; the popular continuity
theory; and the organic substitution theory. Likewise, in the
traditional theories of non-continuity of obligations following state
succession, there are basically two doctrines, namely: the classical
clean-slate doctrine and the socialist theory of clean slate doctrine.97
The starting point of the Nyerere doctrine on state succession is
the assertion that, the newly independent states have no any
continued legal identity with the respective colonial powers.
Secondly, there was no continuity of sovereignty that existed prior
to colonialism, because most of these countries are not what they
were before, as what existed in pre-colonial times were just small
chiefdoms. Therefore, there was no continuity of either pre-colonial
or pre-independence legal identity. Therefore, new and sovereign
international legal personalities had emerged after independence.98
The Nyerere position was given in the context of a proposal for an
Inheritance Agreement which the British had prepared for
Tanganyika, like they had prepared for other former British colonies
upon gaining their independence. Reporting in the National
Assembly, Nyerere said:
“….after examining the (inheritance Agreement)
proposal in detail, the Government has felt unable to
accept it. We understand that, the effect of such an
agreement might be to enable third states to call upon
Tanganyika to perform certain treaty obligations from
which Tanganyika would otherwise have been released
by her emergence into independent statehood.

97 See: Y. Makonnen, The Nyerere Doctrine of State Succession and the New States of
East Africa, Eastern Africa Publications Ltd., 1984, 17-35.
98 Makonnen, Op. cit., 47-48.

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Moreover, we are advised that an inheritance

agreement would probably not be able by itself to
enable us to insist that third states discharged towards
us the obligations which they assumed under the
original treaty. We have therefore decided to follow a
different path”.99

It is this different path that was called the ‘Nyerere doctrine of

state succession’. The main tenets of the doctrine, which are based
on the clean slate or tabula rasa doctrine are as follows: firstly, it is
assumed that all pre-independence commitments automatically
lapse upon occurrence of state succession; renewal of any
instrument of obligation must be subject to the free choice of the
people of the independent country, without any categorization or
qualification; renewal of instruments of mutual interest can be done
without any problem.100
Based on this position, on December 9th 1961, Nyerere sent a
unilateral declaration to the Secretary General of the United Nations
stating that: for all bilateral treaties concluded by the United
Kingdom on behalf of the territory of Tanganyika, the government
would be willing to continue applying them for two years, the expiry
of which all those treaties will be considered terminated, unless
negotiations have been carried out in the interim, and agreement
has been reached. As for multilateral treaties, the Government of
Tanganyika would continue to review each one individually and
propose the steps to take for each one, which will either be
confirmation or termination. In that period, such treaties can apply
on the basis of reciprocity.101
It is noted that, the International Law Commission actually
adopted the general principle of the Nyerere formula in article 4 of
the Draft Articles on Succession of States in respect of Treaties.102 It
is further noted that, the Nyerere approach to the problems of state

99 Tanganyika Assembly Debates, 30th November 1961, as quoted in: Makonnen,

Op. cit., 54.
100 Makonnen, Op. Cit., 54-57.
101 Ibid., 58.
102 Ibid., 64.

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succession is compatible with the principle of permanent

sovereignty over natural resources. On this point it observed thus:

“Upon the occurrence of state succession, the

successor state automatically acquires the right of
permanent sovereignty over the state’s natural
resources by virtue of its sovereignty. Such sovereign
rights include the right of the successor state to revise,
redirect, or annul the status of its national wealth and
resources and to freely dispose them in the interest of
its national development and of the wellbeing of the
people of the state concerned”.103

5.2 Assertion of Sovereignty over Mineral Resources in Post-

Independence Mining Laws

Once again, it is important to remind ourselves that, since mining

was almost exclusively taking place in the Mainland, mining
legislation also was exclusively developing on this side. However,
from 1964 these developments started taking place in the realm and
dynamics brought about by the Union between Tanganyika and
Zanzibar, a fact which had altered the concept of sovereignty, hence
sovereignty over natural and mineral resources.
In the above regard, the Mining Ordinance (Amendment) Act of
1969 vested all the mineral resources of Tanganyika on the
President. However, we note that this vesting of mineral resources
in the President as stipulated in the Mining Ordinance (Amendment)
Act of 1969 was contrary to the spirit of the TANU Constitution of
1965, which had asserted that “all citizens together possess all the
natural resources of the country”. It should also be remembered
that, in 1969 TANU was the ruling party, and therefore the President
of TANU was in fact the same President of the country.
It is also observed that while this provision spoke of vesting in
the President, the minerals in Tanganyika, Tanganyika had legally
ceased to exist since 1964 when the United Republic of Tanzania
was formed. It remained referred to as Tanzania mainland. As such
there was no president for Tanzania Mainland, except that the

103 Ibid., 91.

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president who catered for matters of Tanzania Mainland was in fact

the President of the United Republic of Tanzania. This was a legal
quagmire caused by the unique structure of the Union that had been
formed between Tanganyika and Zanzibar. What can be discerned
however is the fact that, this provision wanted to exclude matters of
minerals from Union matters. This contention is cemented by
Section 4 of the same Amendment Act, which replaced all references
to ‘the territory’ as contained in the Mining Ordinance of 1929 with
‘Tanganyika’. In fact, the word ‘territory’ in the Mining Ordinance of
1929 actually meant Tanganyika. But reinstating the name
Tanganyika in the Mining Ordinance (Amendment) Act of 1969 was
problematic, because as we have observed already, Tanganyika had
legally ceased to exist as from April 1964, and without any savings.
But we also take note of the fact that, the vesting of mineral
resources in the president had followed the British approach where
the head of state or government was considered as the sovereign.
The Mining Act of 1979 vested the entire property and control
over minerals in Tanzania, over the United Republic, extending to
the sea-bed and subsoil of the continental shelf.104 This was a clear
departure from the Mining Ordinance (Amendment) Act of 1969,
which had vested the same in the President, and the Mining
Ordinance of 1920 and 1929 which had vested the same in the
Governor. We also take note of the fact that this departure was
dictated to by the position of the Constitution of the United Republic
of Tanzania of 1977 which had clearly stated that:

“…Sovereignty resides in the people, and it is from

the people that the government, through the
constitution, shall derive all its power and authority.
…the primary objective of the government shall be the
welfare of the people….the government shall be
accountable to the people”.105

The problem is that, the description in the Mining Act of 1979

suggested that the Act would extend to Zanzibar because it is part of
the United Republic and that the sea-bed and subsoil of the

104 Section 5(1) & 3, The Mining Act, 1979.

105 Article 8 (a), (b), and (c), The Constitution of the United Republic of Tanzania,
1977.

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continental shelf could be found both on the eastern part of Tanzania

mainland, and around the Isles. But, mineral matters are not Union
matters and therefore the United Republic, which has sovereignty
over Union matters both in Tanganyika and Zanzibar, could not
extend sovereignty to Zanzibar in respect of non-union matters in. In
fact, although the Mining Act of 1979 suggested that its application
would extend to Zanzibar, there was also something more in the Act
which shows that the Act was not intended to apply to Zanzibar,
because while mineral resources were vested in the United Republic,
the Minister responsible for mining could only grant mineral rights
with respect to ‘the mineral resources of Tanganyika’ which is
Tanzania Mainland.106 This means, the said power of grant of
mineral rights by the sovereign, namely the United Republic, did not
extend to the mineral resources found in Zanzibar, but would be
limited to Tanganyika or Tanzania Mainland.
What we can assert therefore is that, the framing of this provision
was not accidental, because in the Petroleum (Exploration and
Production) Act of 1980, it is explicitly stated that, while the entire
property in petroleum is vested in the United Republic,107 the
application would extend both to Zanzibar and Tanzania
mainland.108 On top of that, once again this position was still
problematic in law, because as we have already indicated,
Tanganyika had legally ceased to exist since the Union in 1964. The
question is: how possible is it that the Minister could have granted
mineral rights in a territory which legally speaking ceased to exist
since 1964?
Secondly, this development was incongruent to the Constitution
in the sense that, while the Constitution asserts that sovereignty
resides in the people, the Mining Act says sovereignty over mineral
resources is vested in the United Republic. As we have seen before,
sovereignty over mineral resources emanates from general
sovereignty. So, the question here is whether ‘the United Republic’ is
the same as ‘the people’.
When we come to the Mining Act of 1998, like its predecessor, it
also vested the entire property and control over minerals in

106 Section 13, The Mining Act, 1979.

107 Section 4(1), The Petroleum (Exploration and Production) Act, 1980.
108 Section 1(2), The Petroleum (Exploration and Production) Act, 1980.

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Tanzania over the United Republic.109 The territorial application

includes “the land, and the land beneath the territorial sea, of the
United Republic”.110 Unlike the Mining Act of 1979, the Mining Act of
1998 did not contain a clause suggesting the exclusion of Zanzibar.
Therefore the impression created is that the Act would extend to
Zanzibar. But this is once again problematic because, unlike
petroleum, minerals had not yet been included in the list of union
matters. Therefore this control of mineral resources by the United
Republic as envisaged in the Mining Act of 1998 did not, in fact or in
law, extend to Zanzibar.
When it comes to the Mining Act of 2010, it vests the entire
property and control over all the minerals in Tanzania in the United
Republic. 111 However, the application of the Act is limited to
Tanzania Mainland.112 It is understandable that, since Tanganyika
legally ceased to exist after the Union in 1964, and since Tanzania
Mainland is not a subsisting political entity, as at the time of writing
this paper, but only a geographical entity, then any wish to vest
mineral resources exclusively in the hands of Tanzania Mainland
would mean vesting them in the United Republic, in its capacity to
handle both Union matters and non-union matters in respect of
Tanganyika or Tanzania Mainland, which in this case this is a non-
union matter.

5.3 Assertion of Sovereignty over Mineral Resources in the

Constitutional Review Process after 2010

The Constitutional review process in Tanzania started almost

immediately after the General Elections in 2010. In the first draft
produced by the Commission that was charged with the task of
collecting peoples’ views, 113 popularly known as the Bomani
Commission, overall sovereignty resides in the people.114 However,

109 Section 5 & 2, The Mining Act, 1998.

110 Section 2, The Mining Act, 1998.
111 Section 5, The Mining Act, 2010.
112 Section 2, Ibid.
113 Released on 3rd June 2013.
114 See: Article 6(a) of the June 3rd 2013 Draft.

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looking at the list of the Union matters, it has been reduced, and
mineral resources as well as petroleum are conspicuously absent
from that list.115 The interpretation here is that, matters of natural
resources were left purposely to be covered in constitutions of the
partners to the Union in which the sovereignty of Tanzania Mainland
(what was formerly Tanganyika) is proposed to be reinstated,116
thereby introducing a three-government system. It is clear therefore
that in this arrangement, that sovereignty over mineral and other
resource will lie in partners to the Union, namely Tanzania Mainland
(formerly Tanganyika) and Zanzibar.
In the 2nd Draft of the Constitution,117 which was produced by the
Special Constitutional Assembly,118 overall sovereignty resides in
the people.119 However, when it comes to the structure of the Union,
this draft reverts back to the government system,120 and considering
the fact that matters of natural or mineral resources have not been
included in the list of union matters, it takes things back to the same
legal quagmires regarding sovereignty over mineral resources.

6. General Observations and Conclusions

As we have found out in this discourse, asserting sovereignty

over mineral resources by the sovereign takes various approaches
and uses constitutional law and mining law. This is done especially
by inserting a clause which declares and vests all mineral resources
over the sovereign. However, as we have seen, the approach in
asserting ownership depends on the understanding of the concept of
sovereignty and understanding as to who is the sovereign in a
country as well as the understanding of how sovereignty should be
exercised.

115 See: Schedule to the Constitution, which emanates from the provisions of Article
60 of the June 3rd 2013 Draft.
116 See: Article 61 of the June 3rd 2013 Draft.
117 Also called the ‘Proposed Constitution’.
118 Released in September 2014.
119 See: Article 7(1)(a) of the September 2014 Draft.
120 See: Article 70 of the September 2014 Draft.

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In the stage of communalism, mineral resources were possessed

communally and controlled by families or clans. There was no
evidence of ownership being vested exclusively in the sovereign.
Even with the emergence of feudalism, there was no evidence of
existence of a centralized system of ownership or control over
resources, but control through smaller groups of individuals usually
associated or connected with royal cycles, or privileged families and
individuals were involved in mining. Not even chiefs claimed
ownership over mineral resources, except that there were some
controls in the process of exploitation. So it can be asserted that, in
pre-colonial societies, mineral resources were owned by the whole
community or society as a whole. That means sovereignty as well as
sovereignty over mineral resources resided in the whole community.
In the Colonial period, the Germans placed all the land in German
East Africa (Tanzania Mainland) under the Empire, which included
all the mineral resources beneath it. This was tantamount to
asserting sovereignty over all the mineral resources of Tanzania
Mainland by the empire represented by the empire. When the
British took over, and through the Tanganyika Order in Council of
1920, they vested in the Governor, on behalf of the British monarch,
not only all minerals being in, under, or on any lands in the
occupation of any native tribe or any member of that tribe, but also
all mines and the right to work such mines and minerals. It was total
assertion of sovereignty over all the mineral resources of Tanzania
Mainland.
In the period after independence especially after the union
between Tanganyika and Zanzibar, Tanzania started juggling with
the question of whom to vest the mineral resources of the country.
There are several observations relating to this fact.
Firstly, the difficulty has been caused by the blanket application
of the formula used by the British. But when the British devised their
formula, they had a clear understanding regarding where
sovereignty resides. They knew that it is the Monarch who is the
sovereign, and that in the colonies like Tanganyika, the sovereign
was represented by the Governor.
Secondly, difficulties in articulating sovereignty have been caused
by the unique structure of the Union between Tanganyika (Tanzania
Mainland) and Zanzibar. Whereas Tanganyika disappeared legally,
but remaining factually, where it is being referred to as Tanzania
Mainland, Zanzibar remained both legally and factually, where it is

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 Assertion of Sovereignty over Mineral Resources in Tanzania 141

being referred to as Tanzania Zanzibar. With regard to Tanganyika,

one faces a problem when one wants to assign legal rights it, but it
happens to be an entity that ceased to exist legally but only exists
factually. Further, the problem is aggravated by the way matters of
natural resources were agreed between the two sides, in which
minerals are not union matters, while petroleum is a union matter,
but added on top of the originally agreed list of union matters.121
So, it appears that in situation of the union between Tanganyika
and Zanzibar, sovereignty must be determined on case by case basis,
which is the case for mineral resources and the pertinent question
is: where does sovereignty generally reside? Is it with the Union? Is
it divided between Zanzibar and the Mainland? How could the Union
hold sovereignty for something which is applicable only on one side
of it?
Thirdly, we also take note of the situation of incongruence
between the Constitution and mining law in assigning sovereignty.
While in the Constitution sovereignty generally resides in the
people, in the mining law sovereignty firstly resided in the President
and later on in the United Republic. It cannot be taken for granted
that the expression ‘people’ in the Constitution is the same as the
‘United Republic’ in the mining laws. In any case, this shows that
while the Constitution takes a people-centred approach in asserting
sovereignty generally, the mining laws take a statist approach in
asserting sovereignty over mineral resources

121 Petroleum was added to the list of union matters in 1968

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