21 January 2013

Tanzania: Road Towards a New Constitution Dispensation

Photo: Tanzania Daily News
Aftermath (file photo): Religious leaders attacked in zanzibar.


There is a broken silence in the Country! At long last, Tanzania has embarked on a search for a brand new Constitution. But what does this mean?

There is lack of consensus as to what this implies for the nation and how far have we gone in it?. This piece is intended at trying to 'clear the cloud'! Tanzania has never had a New, people-centred and democratic Constitution before this process. The current constitution has its roots in the order-in-Council letters which Tanganyika's colonial masters brought to the country as part of the soft power handing over which the British did in 1961.

Starting with the consolidated document made on 27th November that year, the constitution of the United Republic of Tanzania as re-named for the last time in July, 1977 is by far not Tanzanian. Even its patches out of the 14 amendments to it until 2005 cannot justify ownership by Tanzanians instead make it even more confusing. No Tanganyikans were involved in the making of this country's first Constitution.

Even Julius Kambarage Nyerere, founding father of Tanganyika once admitted not to have been involved in the making of the Constitution of Tanzania. No Zanzibaris were involved in the making of the said Constitution, either. It is that serious! No wonder President Kikwete came in at the close of the year 2010 and decided - it is enough! We must build a new Constitution for this country!

But, shall we write one? The history of Constitutionalism in Tanzania after 1961 shows that there have been two major problems in regard to constitution making. First, it is hard to prove serious citizen participation. Secondly, there has never been a moment in time during or before the making of Tanzania in April 1964, when a New Constitution was made. The articles of the union were never a consensus between Tanganyika and Zanzibar, just like the first Tanganyikan Constitution was never even a consensus between the UK and any other country or person of the world.

Subsequent Constitutions have had very cosmetic 'public' participation in amending the supreme law. Most of the Constitutions in Tanzania were made by way of Commissions appointed by Presidents. But Presidential Commissions by themselves produce Constitutions without Constitutionalism, at best! Democratic Constitutions must follow a special path - Framework bill to lead to an act of Parliament; Constitutional Convention or conference and a Commission; Constituent Assembly and at least a referendum.

In addition, all electoral activity mid way must be overseen by a special and independent body. You will agree with me already - Tanzania has never written a New Constitution! It is for the first time we are attempting starting January, 2011! But shall we make it? How? How far have we gone into the process? A new Constitution must come. It is long overdue!

Thanks to Dr Jakaya Mrisho Kikwete, the President. His announcement on 31st December 2010 that Tanzania needed one has amplified the debate and given the demand for it a new momentum and impetus. At this point, we can only go back to the how not the why the country needs a brand new Constitution. Let someone ask what it means by a brand new constitution and Constitutional as well administrative law will come in with responses.

At this point, it may only be useful and possible to state what we must have in mind as we embark on the second phase in this important, long process. Dr Kikwete has blown the whistle! That is a good step forward, not the first! Some highly educated civil servants wasted a lot of time with jargons of whether we need enacting, building or amending one. But that is purely indiscipline! When the President officially declares a process and an assisting official announces the opposite.

In my own view, too much time was spent in agitating foro r against a New Constitution in 2011. For 12 months from the Commitment by His Excellency the President, only one major step was made - enacting the Constitutional Review Act (CRA) in November 2011 by followed an amendment in February 2012. Thereafter, the was very slow progress until the President appointed the Constitutional Review Commission (CRC) to spearhead the process.

Thanks to the CRA whose requirement had necessitated that the President appoints the Commission after inviting names from the public. Tanzania's Constitutional Review Commission is one of the strongest in her history. Chaired by a legal expert and former Prime Minister and AG, the Commission is the centre of the Constitution Making process. Following the appointment of the Commission in May 2012, work began well in July. The first was a familiarization process.

The Commission had to go hiding for a small 'retreat' type of familiarization with the tasks and Mandate of the body. They used the time to also understand their Terms of Reference (TORs). Immediately thereafter, the embarked on the initial meetings with Regional and District Commissioners in Dodoma and Zanzibar. Later, the Media was also briefed. But there has not been enough briefings and updates ever since.

The Commission has kind of moved to much in isolation. Constiyution Making is about consensus building. The Commission needs to understand that they are only the coordinators of the process, not everything. I am of the opinión that it took them too long to start involving stakeholders despite repeated requests for dialogue from JUKWAA LA KATIBA TANZANIA and many others.

Thanks, at last they have come to reckon the need for stakeholder voices. I have called often and repeatedly that the Commission must endevour to be as inclusive in undertaking its duties. Constitution making and Constitutionalism is a Citizens' not Lawyers' affair. We must avoid past mistakes! The commission has just completed views collection from individual citizens through Ward and village level meetings.

That was their first phase into their work. The next is views collection from expert and opinion based institutions, groups and experienced former public leaders and officials. This will continue for sometime before the initial drafting begins in a couple of months. It is expected that the validation first draft begins in June 2013 using the Constitutional foras at district and lower levels. The Constitutional Review Act will need to be amended mid-way to bring about clarity regarding how these foras will be organized.

We also need the regulations and guidelines for the Act to help out the process! After the foras, the Commission shall spearhead final drafting of the New Constitution ready for the tabling of the same to the Constituent Assembly in around November 2013. Unfortunately, the tenure of the Commission comes to an end in October 2013. As an expert in Constitution Making, I am of the opinion that one of the immediate things must be to amend the Act to extend the tenure of the Commission beyond October 2013.

It looks very unlikely and dubious that the Commission's tenure ends before the body tables the draft Constitution to the Special Parliament, namely the Constituent Assembly. That is very unprofessional tos ay the least! We need to acto n the Commission's tenure now! There should have been a National Constitutional Convention or Conference to be organized as public views gathering matures enough to convene one.

This would attract representation from various groups, geographical locations, class segments and many other factors to apply. It should have been here where the many issues and concerns raised during views collection would be synthesized and grouped in sectoral and thematic sub-areas for ease of constitutional discussion and drafting. This would have to come in around September 2013 following the district and Ward level foras.

Unfortunately, the Constitutional Review Act process fell short of the Conference. I do propose that the Conference comes as part of the amendment. Where shall we have the lacking consensus built if there will be no Conference or Convention? There are just now too many areas of disagreement that a Constitutional Conference or convention is just direly needed! The next step shall have to come after some great deal of internal technical work by the Commission and its affiliate committees. A draft Constitutional Manuscript shall be tabled by the Commission to the Constituent Assembly. This is a very important initial legitimation process.

The Constituent Assembly shall constitute elected members from across the country to come and pass the draft constitution. Following the passing of the draft Constitution, the Constituent Assembly shall dissolve with immediate effect. This is international practice! Even members of Parliament of Tanzania and members of the House of Representatives who are automatic members of the Constituent Assembly (CA) shall have to cease to be members of Parliament after the dissolution of the Constituent Assembly.

This is to avoid Conflict of Interest if they continued to be members of Parliament in Dodoma and Members of the House of Representatives in Zanzibar. Ignoring this best practice shall put huge deficit to the Constitution to be made! Thereafter, the passed draft Constitution from the Constituent Assembly shall be taken to a nation-wide final voting through a referendum.

The referendum should never be supervised by the current National Electoral Commission as provided for by the Act. There will be need for an Interim independent electoral Commission to run the referendum for the nation to decide on the draft Constitution with a Yes or No vote! In cases where the No shall override the Yes, a period avaraged at least 6 months should be set to rectify the issues of public discontent before the second referendum is run.

If the second attempt also leads to a NO result, two years must be given for rectifying the issues of disagreement before running a third referendum. For all this time, Civil education shall be vital to educate the masses on the process and content of the draft constitution! It shall only be the document to pass the test of the nation through a referendum that shall become the New Constitution of Tanzania, the form notwithstanding!

Once again, the President of the time (and it may be Dr Kikwete or his successor) shall be called upon to sign the final document to symbolize the document's promulgation and start of a era with a New Constitution in a Nation that had long waited for one! In all these steps, the people's participation must be made paramount and a high priority!

But for people to participate, citizen awareness creation is a task well ahead of us all and this was the number one reason for the establishment of the Tanzania Constitutional Forum, otherwise translated to Kiswahili as JUKWAA LA KATIBA TANZANIA and for which I am the current Chairman. Tanzania has seen the value for having such a Forum in place as a watchdog throughout the 24 months of her existence.

Deus M Kibamba a Policy Analyst and Commentator based in Tanzania. Currently, Mr Kibamba chairs the Tanzania Constitutional Forum whose foundational mandate is to advance citizen awareness and enhance participation in the Constitution Making Process in Tanzania.

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