25 December 2011

Tanzania: Constitution Review Process Kick-Started


THE year 2011 was ushered in with President Jakaya Kikwete promising to kick start a process that would lead up to review of the Constitution of the United Republic of Tanzania. And indeed as we bid farewell to this year, we have the process in place.

The president lived up to his word and we have a law that provides for establishment of the Constitutional Review Commission and the Secretariat for collecting public opinions on the constitutional review.

The constitutional review is intended to examine consistency and compatibility of the existing constitution with regard to sovereignty, political systems, democracy and good governance in the United Republic of Tanzania. The legal mechanism that has been put in place will enable participation of the people of Tanzania in the constitutional review process.

The Bill which was signed into law by the president amidst outcry from the opposition and some activists lays down the legal framework for the President to establish a Commission for reviewing the Constitution and to constitute the Constituent Assembly for purposes of writing a new constitution.

The opposition came out with guns blazing, dismissing the whole process as flawed from start. Opposition chief whip Tundu Lissu believes that the president should have no role in appointing the Commission and that it should be appointed by an independent broad-based organ.

He shares the sentiments with veteran constitutional law academician, Dr Sengondo Mvungi, who says that the constitution review process should be driven by 'the people,' with eventual election of members of constituent assembly. However, the parliament maintains that the law making process was adhered to and that those opposed to the process should wait until the procedure is underway to give their views.

A quick glance at this contested law shows that its Part II specifies in details the objectives and the essence of constitutional review process, including oath of members of the Commission and members of the Secretariat and the procedure through which the constitutional review process will be undertaken.

Part III deals with the composition of the Commission and Terms of Reference and the manner in which they can be given by the President; powers of the proposed organs, subscription of oath or affirmation by members of the Commission and the Secretariat and other procedural matters of the Secretariat.

This Part also makes provisions for adherence to and sanctity of certain matters of national values and ethos. Part IV specifies powers of the Commission. Further more, this Part lay downs the procedure for collection of public opinions by involving the Ward Development Committees or Mtaa Assembly or a Village Assembly and Shehia Assembly, in the case of Tanzania Zanzibar and participation of Tanzanian nationals living outside Tanzania.

Finally, it makes provisions in relation to inviolability of the Commission and the prohibition by any person to interfere with a member of the Commission or the Secretariat in performance of or exercise of their functions and powers, as the case may be.

Powers of the President to establish a Constituent Assembly and powers of the Constituent Assembly to enact provisions for a new constitution by way of Bills are provided under Part V. In effect, the President will consult the President of Zanzibar and by proclamation published in the Gazette proclaim the National Assembly to resolve itself into a Constituent Assembly.

This part triggered criticisms from Dr Mvungi, who believes that the Constituent Assembly should be new and independent. The Vice-Chancellor of Bagamoyo University is against the idea of converting the National Assembly into the Constituent Assembly, saying a new body should be elected for that purpose instead of using the CCM-dominated parliament.

Part Six provides for validation of the Constitution through a Referendum to be conducted and supervised by the National Electoral Commission. This is an important and unprecedented in the history of constitution making in Tanzania. It must be known that never in the history of independent Tanzania have the people ever participated in the constitution making process through a referendum.

Constitutional making has always been a preserve of the parliament with people giving their views through consultations. The approach, however, cannot be dismissed wholesale as bad. Dr Mvungi concedes that the Tanzanian constitution as amended from time to time, has always improved in content. The most important amendments were made in 1984, where human rights were entrenched and recognised by the constitution.

Other notable changes include those that imposed term limits on presidential tenures and legalising of multiparty democracy in Tanzania in early 1990s. As we bid the year 2011 bye-bye, we have something to look back to and smile and something to look forward to. The foundation has been set and it is up to the people to prepare to take part in the process.

To conclude, let me quote the CCM publicity secretary Nnape Nnauye: "We are reviewing this constitution with no pressure from anywhere. This is a decision taken with good faith and it is time to have a fresh look at the constitution with the view to improve in line with demands of the time.

"We should look around and see how our neighbours got their new constitutions in Kenya, the situation was bad and the Kenyans worked on their constitution under tense conditions. They were pushed, but for us nobody is on our neck." The year 2011 will go down in history as the year, when Tanzania began a rebirth process. As we welcome the New Year, we have a lot to look forward to and it all started in 2011.

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